A judge embodies the law; she cannot be above it. She should not use it to advance her personal convenience, or to oppress others. She should be obedient to the rules and directives enunciated by the Supreme Court for the effective administration of justice; otherwise, she becomes an arrogant tyrant. Being a magistrate of the law, she must comport herself in a manner consistent with the dignity of her judicial office, and must not commit any act that erodes public confidence in the Judiciary.

In these consolidated administrative proceedings, we resolve the several charges of gross misconduct, gross ignorance of the law, gross insubordination, oppression, and conduct unbecoming of a judge leveled by various complainants, some of.them her fellow Judges, against respondent Judge Eliza B. Yu, the Presiding Judge of Branch 47, Metropolitan Trial Court (MeTC) in Pasay City.

On June 4, 2013, A.M. No. MTJ-12-1813 was consolidated with A.M. No. MTJ-12-1-09-MeTC.^[1] Other closely-related administrative complaints involving the respondent, specifically: A.M. No. MTJ-13-1863, A.M. No. MTJ-12-1815, OCA IPI No. 11-2398-MTJ, OCA IPI No. 11-2399-MTJ, OCA IPI No. 11-2378-MTJ, and OCA IPI No. 12-2456-MTJ, were similarly consolidated.^[2]

Antecedents

A.M. No. MTJ-12-1813
(Office of the Court Administrator v. Judge Eliza B. Yu)
On January 27, 2011, the Court, through Chief Justice Renata C. Corona, issued Administrative Order No. 19-2011^[3]in response to the specific request of Secretary Alberto A. Lim of the Department of Tourism (DOT) to establish night courts in Pasay City and Makati City. A.O. No. 19-2011 designated the branches of the MeTC in Pasay City and Makati City as night courts to expeditiously hear and try cases involving nighttime apprehensions, special cases under the Rule on Summary Procedure, and criminal cases involving tourists, viz.:

ADMINISTRATIVE ORDER NO. 19-2011

ESTABLISHING NIGHT COURTS IN THE METROPOLITAN TRIAL COURTS OF PASAY CITY AND MAKATI CITY
WHEREAS, the Constitution mandates the speedy disposition of cases of all persons before judicial bodies;

WHEREAS, "the Executive Judges of the Metropolitan Trial Courts and Municipal Trial Courts in Cities of the cities and municipalities comprising Metro Manila x x x may assign all judges to hold night court sessions daily from Monday to Friday and on official holidays and special days."

WHEREAS, in line with the constitutional mandate on the speedy disposition of cases and in the exercise of its power of administrative supervision over all courts, the Supreme Court has ordered (a) the establishment of night courts in the Metropolitan Trial Courts of Manila "to try and decide all special cases enumerated in the Rule on Summary Procedure," and (b) the opening of two branches in the Metropolitan Trial Courts of Quezon City as night courts to hear "cases involving nighttime apprehensions" and special cases enumerated in the Rule on Summary Procedure;

WHEREAS, the Court held that the operational guidelines for the assignment of judges and the holding of night court sessions in Manila shall also be applicable to the night courts established in Quezon City;

WHEREAS, the Court requires the expeditious disposition of criminal cases involving tourists;

WHEREAS, the Honorable Secretary Alberto A. Lim of the Department of Tourism has requested the designation of night courts also in Pasay City and Makati City, in addition to those already existing in Manila and Quezon City;

WHEREFORE, it is hereby directed that:

1. Night courts similar to those designated in the Metropolitan Trial Courts of Manila City and Quezon City be established in the Metropolitan Trial Courts of Pasay City and Makati City;

2. The operational guidelines for the assignment of judges and the holding of night court sessions in the Metropolitan Trial Courts of Manila be applicable to the night courts in the Metropolitan Trial Courts of Pasay City and Makati City, respectively, except operating hours, which shall be from four-thirty in the afternoon (4:30 p.m.) until eleven o'clock in the evening (11:00 p.m.);

3. The night courts of Pasay City and Makati City be authorized to try and decide cases involving nighttime apprehensions and all special cases enumerated in the Rule on Summary Procedure;

4. The provisions of Administrative Circular No. 58-2002, dated 14 November 2002, requiring an expeditious disposition of criminal cases involving tourists be complied with; and

5. The Executive Judges of the Metropolitan Trial Courts of Pasay City and Makati City (a) to inform the Philippine National Police (PNP) and the Prosecutor's Office within their respective jurisdictions of the schedule of the branches of the metropolitan trial courts assigned to hold night sessions; and (b) make representations with the PNP and the local government units to ensure that appropriate security measures are adopted to protect the judges and their staff during night sessions.

Immediate compliance with this order is enjoined.

27 January 2011.

To comply with A.O. No. 19-2011, then Pasay City MeTC Executive Judge Bibiano G. Colasito issued a Memorandum dated February 9, 2011^[4] prescribing the schedules for night court service of all Pasay City MeTC Judges and employees effective February 14, 2011. Under the Memorandum, MeTC Branch 47, presided by respondent Judge Yu, was assigned night court duties every Friday. But Judge Yu did not desire to comply, and so inscribed the following marginal note on the February 9, 2011 Memorandum of Judge Colasito, to wit:   

February 11, 2011

Pls. I dissent with the night court assignment. I have pending legal question before the Office of Court Administrator.^[5]

The pending legal question Judge Yu adverted to had been posed in her letter dated February 2, 2011 to the Court Administrator Jose Midas P. Marquez,^[6] as follows:

Sir:

Our Court is in receipt of Administrative Order No. 19-2011 (Establishing Night Courts in the Metropolitan Trial Courts of Pasay City and Makati City) today.

Among others, it is provided that: "3. The night Courts of Pasay City and Makati City be authorized to try and decide cases involving night time apprehensions and all special cases enumerated in the Rule on Summary Procedure."

With due respect, the police officers cannot apprehend, detain and bring the arrested persons charged with cases covered by the Rule on Summary Procedure at night without being liable for Arbitrary Detention. The arrested persons need not post bail under the Rule on Summary Procedure. Thus, there is no legal basis for the police officers to detain them prior to the hearing of their cases at night by the court. Moreover, the public prosecutors cannot conduct inquest on the night arrests of the suspected criminals because the penalty involved in cases covered by the Rule on Summary Procedure is not more than six (6) months. Inquest can be conducted only where the penalty is four (4) years, two (2) months and one (1) day and above. The night inquest without the release of the arrested suspects is questionable. It can make the public prosecutors criminally and administratively liable.

It is tedious for the public prosecutor and the public attorney to attend the night court from 4:30 p.m. to 11:00 p.m. after attending an exhaustive hearing in the morning then attend the hearing on the following day, without additional pay.

Unlike in Manila Metropolitan Trial Courts where the cases tried by night courts are mostly violation of ordinances, in Pasay Metropolitan Trial Courts, most of the cases filed are Theft, B.P. Blg. 6 and P.D. No. 1602 that entail full blown trial because the accused refuses to enter into a plea bargaining. In this sense, the establishment of night courts in Pasay City cannot unclog a court's criminal docket. (Bold emphases supplied)

Please enlighten us on this concern.

Thank you.

It appears that the Station Investigation and Detective Management Section (SIDMS) of the Pasay City Police Station received a copy of Judge Yu's letter to Court Administrator Marquez. Wary of the potential criminal liability of apprehending officers adverted to in the letter, Police Chief Inspector Raymund A. Liguden of the SIDMS sought clarification from the Office of the Pasay City Prosecutor.^[7] In response, the Office of the Pasay City Prosecutor explained through Prosecutor Dolores P. Rillera that the apprehending officers could become liable for arbitrary detention only when they failed to refer the arrested persons for inquest proceedings within the periods specified under Article 125 of the Revised Penal Code.^[8]

Apprised of the explanation from the Office of the Pasay City Prosecutor, Judge Yu requested Prosecutor Rillera to refer the matter to the Department of Justice (DOJ) and request a legal opinion thereon,^[9] even as she requested Court Administrator Marquez to have her letter to Prosecutor Rillera docketed as an administrative matter.^[10]

Judge Yu communicated her reservations about the night court by letter directly to DOT Secretary Lim,^[11] pointing out that the DOT's request for the establishment of the night courts was supported neither by statistical data nor by any study. After rendering a lengthy discourse on the flaws of establishing night courts, she ended her letter with a request for additional compensation and security in case she would undertake night court duties. The pertinent portions of her letter ran as follows:

Dear Sir:

This Court learned that you requested for the designation of night courts in Pasay City that resulted to the issuance of Administrative Order No. 19-2011 (Establishing Night Courts in the Metropolitan Trial Courts of Pasay City and Makati City) dated January 27, 2011.

With due respect, there is insufficient basis for your request. There was no statistical data present or there was no study conducted by your department recommending the necessity of establishing night courts in Pasay City. For the record, this Court is yet to hear a case involving any tourist. Moreover, the tourists should be advised not to roam around the city at night so as not to be victims of various crimes. Usually, the perception of the tourists who are going around the city at night is negative, for they are likely to be engaging in unlawful nocturnal activities. They are at their own risk at night.

There was no prior consultation with the police officers, public attorneys, public prosecutors, judges and their staff before your department requested for the creation of night courts in Pasay City.

There are many concerns which your department did not consider.

First, some of the rights of the accused who were charged with cases covered by the Summary Procedure are impaired by the operation of night courts. x x x

x x x x

Second, night courts in Manila City and Quezon City are criticized for being ineffective and non-functional. In Manila City, when I was a public prosecutor, I questioned as to the legality of the detention of the accused being arraigned at night for violation of ordinances. When I was not given any legal justification, I requested to be relieved from night court. My experience showed that night court is a waste of time for all. The cases tried at night court can be tried during day time without burdening the three (3) pillars of our criminal justice system. xxx. The cases tried are violation of city ordinances, mostly on illegal vending in the night courts. I heard that these cases were filed for money making scheme by the police officers. From the information gathered, only those accused who did not give them money were arrested, detained and brought to the night courts.

Third, there is a grave violation of the right of government employees against long and extended period of work with no additional pay at night. This is a form of exploitation of workers whose rights are enshrined under the Constitution. It bears pointing out that additional compensation for night time work is founded on public policy.

x x x x.

Fourth, it is very burdensome to attend the court at night.

x x x x.

Fifth, it is risky to work at night because of lack of security.

x x x x.

Lastly, the establishment of night courts in Pasay City will not unclog a court's criminal docket.The situation in Manila City and Quezon City are not similar with Pasay City. x x x. In Manila Metropolitan Trial Courts, majority of the accused pay the fine for the violation of ordinances not involving any tourist crime during the night court hearing. Also, a study must be conducted by your department, if necessary, about the effectiveness of night courts in Manila City and Quezon City, and if these night courts are attaining the purposes they were created. If not, there is no reason for the establishment of a night court or tourism court here in Pasay City. Another thing, there is uneven assignment of judges alone to the night court. x x x.

I hope you find merit with this letter. May your department reconsider your request for the establishment of night courts in Pasay City. With due respect, it will be appreciated if your department will give additional compensation and provide police security to the judges, public prosecutors, public attorneys and the entire court staff, if it insist of [sic] establishing night courts here without conducting any study.

x x x x. (Bold emphases supplied)

On May 5, 2011, the Office of the Court Administrator (OCA), through Assistant Court Administrator (ACA) Thelma C. Bahia, responded to the concerns raised by the Judge Yu in the following manner:^[12]

This refers to your letter dated February 2, 2011 apprising us of certain concerns relative to the establishment of night courts in Pasay City.

x x x x

The first concern has been ably explained in the attached letter dated February 25, 2011 of Prosecutor Dolores P. Rillera, Chief, Inquest Division, Office of the City Prosecutor, Pasay City, addressed to Police Chief Inspector Raymond A. Liguden, Chief SIDMS, Pasay City, who, having been furnished a copy of your letter dated February 2, 2011, subsequently sought the guidance of Prosecutor Rillera on the matter.

With respect to the second point you raised, prosecutors and public attorneys of Pasay City had long been assigned their respective schedules to handle inquest proceedings until 10 p.m. prior to the designation of night courts in Pasay City. Attending night courts would not be as tedious as you surmise. Besides, prosecutors and public attorneys already receive allowances for staying beyond office hours.

As to the third issue, the main consideration for the designation of night courts is to address the matter of nighttime apprehension which include offenses enumerated in the Rule of Summary Procedure. Priority is also given to those criminal cases where the offended party or the complainant is a tourist or transient in the country as already explained in Administrative Circular No. 58-2002 dated November 14, 2002.

Be reminded that judges, prosecutors and public attorneys are public officers who are duty bound to serve with the highest degree of responsibility, integrity, loyalty and efficiency and whose main concern in the performance of their duties is public welfare and interest.

Please be guided accordingly.^[13]

Ostensibly not satisfied, Judge Yu replied,^[14] pertinently stating:

x x x x

With due respect, your letter did not address the issues raised in my letter dated February 11, 2011 to Hon. Alberto A. Lim, Secretary of Tourism who did not reply said letter to date [sic]. Attached is my letter dated March 22, 2011 address[ed] to Hon. Jose Midas P. Marquez together with the attachments.

As per information from this Courts' Officer-in-Charge Emelina J. San Miguel who heard from other staff of the Office of the Clerk of Court, there is (sic) no criminal case filed at night since the start of the night courts here in Pasay until now showing the need to review, if not abolish the administrative order creating it.

Back at the Pasay City MeTC, the continued refusal by Judge Yu to render night court service prompted Executive Judge Colasito to assign additional night court duties to the other MeTC Judges and their personnel.^[15]

In view of Judge Yu's refusal to follow A.O. No. 19-2011, the OCA submitted a memorandum to the Court,^[16]recommending that her insubordination, gross misconduct and violation of The New Code of Judicial Conduct be docketed as an administrative complaint against her. In due course, the Court required Judge Yu to comment.^[17]

In her comment, Judge Yu denied the charges, and asserted that she did not commit insubordination;^[18] that her protest against night courts was a mere expression of her opinion; that she would render night duty upon receiving a resolution on her protest from the Court; that the OCAD should have submitted a complete study and report about the effectiveness of night courts in the National Capital Judicial Region, particularly in Pasay City;^[19] and that her protest was covered by her constitutional right to freedom of speech^[20] and other legal principles.^[21]

Judge Yu also asserted that based on her experience, holding night courts unduly burdened the Judges and their court personnel, as well as other court employees;^[22] that A.O. No. 19-2011 merely reiterated Administrative Order No. 72 dated June 30, 1988 that had been based on the 1983 Rule on Summary Procedure in Special Cases but the latter issuance had already been superseded by the 1991 Revised Rules on Summary Procedure;^[23] that A.O. No. 19-2011 did not make any reference to the 1991 Rules of Summary Procedure which was a "huge legal blunder;"^[24]that the drafters of A.O. No. 19-2011 merely reiterated Administrative Circular No. 58-2002 dated November 14, 2002, and overlooked R.A. No. 4908 (An Act Requiring Judges Of Courts To Speedily Try Criminal Cases Wherein The Offended Party Is A Person About To Depart From The Philippines With No Definite Date Of Return);^[25] that night court duty violated the 8-hour work period;^[26] that the Court should exercise judicial restraint;^[27] the A.O. No. 19-2011 was invalid for non-compliance with the requirements of issuing a valid administrative order;^[28] that A.O. No. 19-2011 did not provide any penalty in case of its non-compliance;^[29] and that A.O. No. 19-2011 was an invalid order addressed solely to the Executive Judges of the MeTC of Makati City and Pasay City.^[30]

A.M. No. MTJ-13-1836
(Re: Letter dated May 2, 2011 of Hon. Eliza B. Yu, Branch 47, MeTC, Pasay City); and

A.M. No. MTJ-12-1815
(Leilani A. Tejero-Lopez v. Judge Eliza B. Yu)
These administrative matters refer to the appointments of Ms. Leilani A. Tejero-Lopez as the Branch Clerk of Court of MeTC Branch 47, and Ms. Mariejoy P. Lagman as Clerk III of the Regional Trial Court (RTC) Branch 108, in Pasay City.

Respondent Judge Yu challenged the appointments.

I. Appointment of Ms. Tejero-­Lopez as Clerk of Court III, MeTC Branch 47, Pasay City

On July 9, 2010, Judge Yu requested to fill the position of Clerk of Court III in her sala.^[31] Upon approval of her request^[32] and consequent posting of the notice of vacancy,^[33] three applicants vied for the position, namely: Ms. Ellen D.L.S. Serrano, Ms. Leilani A. Tejero-Lopez and Ms. Eloisa A. Bernardo.^[34] From the outset, Judge Yu favored Ms. Bernardo for the vacancy.^[35]

After evaluating the applicants' qualifications, the Selection and Promotion Board for the Lower Courts under the OCA (OCA-SPBLC) recommended the appointment of Ms. Tejero-Lopez, then a Legal Researcher assigned at MeTC Branch 46, in its Board Resolution No. 12B-2011(A) dated April 4, 2011.^[36] The OCA-SPBLC had found Ms. Bernardo to have lacked the required training.^[37]

On April 12, 2011, Chief Justice Corona, along with Associate Justice Antonio T. Carpio and Associate Justice Conchita Carpio-Morales, approved Ms. Tejero-Lopez's appointment.

In the meantime, by letter dated March 31, 2011, Judge Yu requested the temporary designation of Ms. Bernardo as the Clerk of Court,^[38] and furnished a copy of the letter to Ms. Tejero-Lopez.^[39] In the letter, Judge Yu expressed her protest against the appointment of "another applicant from Metropolitan Trial Court Branch 46, Pasay City, as well as other applicants who cannot be appointed because they lacked the requirement of the personal endorsement by the judge." She further declared that it would be best to either hire a new lawyer or to call for another batch of applicants in the event that Ms. Bernardo would not be appointed.

The OCA-SPBLC, through Deputy Court Administrator Nimfa C. Vilches, denied Judge Yu's request for Ms. Bernardo's temporary designation pursuant to Section 2(b), Rule III of the Omnibus Rules on Appointments and Other Personnel Actions in view of the availability of a qualified applicant.^[40]

On April 14, 2011, Ms. Tejero-Lopez learned from Ms. Emmie San Miguel, the then OIC of Branch 47, that Judge Yu had wanted her to execute a waiver or withdrawal of her application.

Wishing to settle the issue of the appointment amicably, Ms. Tejero-­Lopez paid Judge Yu a visit in her chambers. The meeting between them was hostile. In describing the meeting, Ms. Tejero-Lopez pointed out that Judge Yu had shouted and exclaimed at her: "Nanggugulo ka[!] Ikaw ang nanggugulo[!] katatawag ko lang sa Supreme Court, Sabi ng Supreme Court, ikaw ang nanggugulo[!]." Ms. Tejero-Lopez recalled that Judge Yu then demanded her withdrawal with a threat to revoke her appointment later on. Faced with the prospect of eventually losing her job, Ms. Tejero-Lopez decided to withdraw her application.^[41]

On April 26, 2011, Judge Yu asked for the reconsideration with the OCA-SPBLC by submitting a copy of the withdrawal of the application signed by Ms. Tejero-Lopez.^[42]

However, by her letter dated May 10, 2011, Ms. Tejero-Lopez retracted her withdrawal, and signified her intention to pursue her application.^[43]

After an investigation that established that Ms. Tejero-Lopez did not voluntarily withdraw her application, the OCA-SPBLC continued processing her appointment,^[44] and she was eventually appointed Clerk of Court III effective May 31, 2011.^[45]

Upon receiving her appointment on June 7, 2011, Ms. Tejero-Lopez went to Judge Yu's chambers to take her oath, but the latter refused her request to administer her oath. According to Ms. Tejero-Lopez, Judge Yu questioned the integrity of the selection process, and told her directly that the Court had appointed her in retaliation to her refusal to render night court service. Judge Yu threatened Ms. Tejero-Lopez with criminal cases of grave coercion and trespassing, and contempt of court if she persisted on taking her oath of office. Judge Yu further vowed to assail the appointment before the Court and the Civil Service Commission (CSC).^[46]

On the same day, Judge Yu wrote to Atty. Caridad A. Pabello, Chief of Office, OCA-Office of Administrative Services (OCA-OAS),^[47] to protest the appointment, to wit:

Madam:

Thank you for your telegram today. Please be informed that Leilani Lopez has withdrawn her application as Clerk of Court III in this court [a] long time ago. She failed to comply (sic) all the requirements for the consideration of her application for such position because, among others, she has no personal endorsement from this court despite her last ditch attempt to get it on March 7, 2011.This court did not sign an important document for her relative to the position thus her application cannot be considered by the Selection and Promotion Board for the Lower Courts at all. Moreover, this court has continuing protest against her appointment in this court to date. And this was reiterated to Leilani Lopez few moments ago.

Please be guided accordingly.

x x x x (Bold emphasis supplied)

A week later, Judge Yu sent another letter stating that she had apprised Ms. Tejero-Lopez of her possible indictment for unlawful appointment, grave coercion and unjust vexation, among others.^[48] She thereby also expressed her refusal to honor the "void ab initio" appointment of Ms. Tejero-Lopez, which she characterized as "a big joke." For the fullest appreciation of the contents, the letter is quoted herein below:

Madam:

Please be informed that today Leilani Lopez, the applicant for Clerk of Court III who has withdrawn her application long time ago, sought to see me because of her appointment, a legally infirm one. I accommodated her for a brief talk for the last time, hoping to not see her again and never to bother me anymore.

It was explained to her that she will face possible indictment of, among others, unlawful appointment, grave coercion and unjust vexation, all punishable under the Revised Penal Code, if she forcibly insist to take a seat in this court despite of numerous oral and written opposition by the court to her selection and appointment. Likewise, she can be thrown to jail for contempt of court, if such callousness and discourteousness continue to exist in this court.Moreover, she was told that if thievery extends to public office, the elements of Theft under our penal code were established prima facie, as the concept of apoderamiento or unlawful taking predominates in this situation, an affront of the Rule of Law, showing that the Rule of Jungle where might is right triumphs as can be gleaned in a paper, a null and void appointment paper held by her. Her appointment is highly questionable. Leilani Lopez received the proverbial forbidden apple, obviously grown from a toxic tree. Our court advised her for the last time not to eat it, or she will suffer the grave consequences, without any taint of threats to her. The ways of a scholar seem not to have a place in this prestigious institution, for her appointment is an example of brute force, they say it is a rape of the honor of this bench, others say it is a spit of insult. However, this court will not press formal charges against the poor Leilani Lopez, a sorry victim of a subtle power play. Article 24 of the New Civil Code says indirectly that the court must be vigilant for the protection of morally dependent, ignorant, indigent, mentally weak, tenderness of age or other handicap of a person. Your office must be reminded that I took my oath seriously before SC Justice Antonio B. Nachura, and I swore to him that I will uphold the Constitution, and I will remain faithful to my oath even after his retirement in the judiciary. Consequently, this court will not honor the void ab initio appointment of Leilani Lopez, a big joke and so this court is laughing at her and all others who are like her, not to put her and others down, only to treat this delicate matter lightly in jest strange things, sometimes contrary to law or contrary to the spirit of the law, do happen in judiciary. The Selection and Promotion Board for the Lower Court is funny, and it made me laugh. I rather laugh than be angry, than feel helpless, than look powerless in this awful and mean situation. Firmness of decision anchored on the principles of righteousness and justice is one of the characteristic of this unassuming court. I am happy to feel that God is with me, and He not Satan is cheering with me in this lonely fight as to what is right and just.

Thank you. (Bold emphasis supplied)

On June 17, 2011, Judge Yu submitted her formal protest^[49] against Ms. Tejero-Lopez' appointment, as follows:

Chief Justice Renato C. Corona
Supreme Court
P. Faura St., Manila City

FORMAL PROTEST TO THE APPOINTMENT OF LEILANI LOPEZ AS BRANCH CLERK OF COURT OF METROPOLITAN TRIAL COURT BRANCH 47, PASAY CITY
Sir:

All the laws provide the inherent relief of protest by the incumbent judge to an appointment of any staff in his or her court. The appointed applicant Leilani Lopez is not qualified and not fit to work as the branch clerk of court in my sala.

Leilani Lopez lacked personal indorsement. The applicant knew this, and so she said to me on June 14, 2011 that she does not know why she was appointed. She attempted to get a personal indorsement from me on March 7, 2011 that I rejected. She must submit her neuro-psychiatric test results to me and to the Board because it is definitely abnormal, some kind of an obsession, to insist in clinging on to a position of a branch clerk of court after numerous oral and written opposition by a judge she will be working with. This alone is a sign that she is unfit for the job. Her obsession is dark, it is destructive because she places her own personal interest over public interest[.] [w]ith her presence in my court, the public will definitely suffer, and so the judiciary. I as a judge will suffer. I am demoralized with this rotten system of appointing an unfit applicant. I am unhappy right now of her appointment, and it will affect my enthusiasm and productivity in court. I expressed my disgust unabashedly before the Chief of OAS and the lawyer from the Legal Department, and so I felt discourteous as I was a victim of discourtesy here. For showing lack of delicadeza, Leilani Lopez was rejected openly[,] verbally[,] and in writing, made to her by me and my court staff [sic] for numerous times, thus she is callous and discourteous.

Leilani Lopez deceived me by giving me a formal letter of her withdrawal of application, only to find out yesterday that she filed her waiver of withdrawal which disclosure should have been made to me by her in good faith. This qualifies her for the crime of Other Deceits under Article 318 of the Revised Penal Code. In doing this, she does not have my trust and confidence, a biting reality since the time she applied for the position until her numerous rejections. Dishonesty encompasses all that deviates sense of honesty. Our workplace provides that "Dishonesty is a serious offense which reflects a person's character and exposes the moral decay which virtually destroys honor, virtue, and integrity. It is a malevolent act that has no place in the judiciary, as no other office in the government service exacts a greater demand for moral righteousness from an employee than a position in the judiciary." If Leilani Lopez has a gull [sic] to deceive me at this point in time, giving me her formal withdrawal letter and filing her waiver of her withdrawal letter without my knowledge, and this was not disclosed to me by her despite her opportunities to do so, this meant that she has a dishonorable and vicious character, undeserving to be in my court. She did this deceitful conduct to me and she showed unpredictable actuations to me and to the Board while she is still an applicant, she will most likely do it as a branch clerk of court in my sala. And so I will always be wary with her presence in my court, and it is a tremendous mental stress or for me as a judge.

With due respect, there was a misconstruction of the laws on selection and appointment of court personnel by the Board, it presupposes that all the applicants submitted for consideration by the Board must have good and harmonious working relationship with a judge he or she will work with and so the judge must have assented or agreed to the proposed application of all applicants, expressly or impliedly. If an appointed applicant is not the liking of the judge, there will be disharmony in the court. The working relationship with [sic] be based on mistrust and distrust. It will not accomplish anything good for the judiciary as a whole. Each other's working life as a judge and as a branch clerk of court will be miserable. This is not the spirit of the letter of all the laws pertaining to selection and appointment of Supreme Court employee aspiring for confidential position such as branch clerk of court. In fact, I believe that the branch clerk of court must be co-terminus with a judge's assignment in a particular court. I do not engage in a power play, it happens that the personal indorsement of a branch clerk of court is my prerogative as a judge and I want to exercise that prerogative to accomplish excellently in my judicial and non-judicial tasks. There were substantive and procedural flaws with her selection and appointment as branch clerk of court. The laws surrounding the irregular appointment of Leilani Lopez, including the fact of not resolving my grievance prior to her appointment, were misapplied in her case. We do not uphold the laws that cause quarrel and dissension in court. Assuming Leilani Lopez took her oath of an irregular appointment which she is aware of, my recourse as a judge is to ask for her detail to another court, preferable to the Selection and Promotion Board. This will not contribute for the success of my court in the interest of public service. Our workplace deprived me of a court staff who I can completely trust, and help me accomplish great things in the judiciary. The Board deprived me already of my prerogative to choose my branch clerk of court, and so I want this deprivation to be put on record. If I lose this legal battle in this workplace, I am a winner because I brought to your attention, and all Supreme Court justices, ultimately the public, such unrighteous and unjust manner of selecting and appointing a branch clerk of court. You may have been misled by the Board in signing her appointment. You have many things to do as Chief Justice, sometimes, you may not have read the minutes of Board and merely followed its recommendation. As a judge, I have my rights and privileges, and far more considered than the rights and privileges of an applicant for a branch clerk of court, a virtual stranger to me at the time of her application, and now her character is dubious to me. Imagine, this kind of irregular appointment invites suits and casts disrepute amongst us, I doubt if this is what our Supreme Court envisions or our Constitution dreams for the Supreme Court. I re-plead all my letters and the attachments dated June 15 and 16, 2011 pertaining to the appointment of Leilani Lopez that were furnished to the Office of the Court Administrator and to you to form part of this formal protest. Attached herewith is a formal complaint against Leilani Lopez. (Emphasis supplied)

I am requesting for a Solomonic resolution of this protest.

Thank you.

Judge Yu submitted a supplemental formal protest dated June 28, 2011 describing the appointment to be "tainted with irregularity in gross violation of the substantive and procedural laws" and "void ab initio" for failure to obtain the favorable recommendation from her as the presiding judge.^[50] She argued that the OCA-SPBLC had failed to assess the competence and qualifications of Ms. Tejero-Lopez; that Ms. Tejero-Lopez did not meet the minimum requirements for the position; and that the position of Branch Clerk of Court was confidential.

In view of Judge Yu's refusal to honor her appointment, Ms. Tejero­-Lopez requested Executive Judge Colasito through her letter of June 11, 2011 for her detail to another office.^[51]

Ms. Tejero-Lopez ultimately executed a sinumpaang salaysay charging Judge Yu with refusal to obey court order.^[52]

On September 12, 2011, the Court dismissed Judge Yu's protest against the appointment of Ms. Tejero-Lopez.^[53]

Judge Yu was undaunted, however, and she filed a motion for reconsideration,^[54] attaching the motion to her supplemental explanation.^[55]

II. Appointment of Ms. Mariejoy P. Lagman, Clerk III, RTC Branch 108, Pasay City

In June 2010, Judge Yu initiated a complaint, docketed as A.M. No. P-12-3033 (formerly A.M. No. 10-8-97-MeTC), entitled Memoranda of Judge Eliza B. Yu Issued to Legal Researcher Mariejoy P. Lagman and to Court Stenographer Soledad J. Bassig, All of Metropolitan Trial Court, Branch 47, Pasay City, against Ms. Mariejoy P. Lagman, Legal Researcher II of Branch 47, for grave misconduct, falsification, usurpation of judicial functions and dishonesty.

Citing "pressure within the working environment" and in order to have "a self-assured and peaceful mind," Ms. Lagman requested her transfer to another branch of the MeTC pending the hearing of the complaint against her.^[56]Eventually, the Court appointed her as Clerk III of Branch 108 of the RTC in Pasay City effective October 5, 2010, a demotion from her position as Legal Researcher in Branch 47.

Apparently, Ms. Lagman's appointment did not sit well with Judge Yu, who assailed it before the OCA-SPBLC as a "fast appointment" for being made despite her pending administrative complaint.^[57]

On May 2, 2011, the OCA received a letter from Judge Yu requesting for updates on the alleged delay in the appointment of a clerk of court in her branch, and her protest against the appointment of Ms. Lagman, among others.^[58] She thereby threatened to file formal charges against the members of the OCA-SPBLC, thus:

Sir:

I am requesting your office to furnish me the information on the following:

(1) xxx;

(2) xxx;

(3) xxx;

(4) The report of an investigation of the very delayed appointment of our Branch Clerk of Court, the position is vacant for over three (3) years now;

(5) x x x; and

(6) The report of an investigation on the appointment of Ms. Mariejoy P. Lagman in RTC Branch 108, Pasay City despite the pending administrative cases involving grave offenses against her.

I am requesting Atty. Wilma D. Geronga, Chief of Legal Department, Docket and Clearance Division of your office, to docket my letter dated April 28, 2011 together with the attachments addressed to the Selection and Promotion Board for the Lower Courts that said office received on the same day touching on the foregoing matters for the conduct of full investigation because I will take the appropriate action. I will not hesitate to press formal charges against your office if there was a transgression of the laws and if still necessary. (sic) Stamping out corruption of any form is one of my advocacies in life.(Emphasis supplied)

Thank you.

The OCA filed a memorandum denouncing the misconduct and insubordination of Judge Yu relative to the appointments of Ms. Tejero­ Lopez and Ms. Lagman.^[59]

On January 30, 2012, the Court required Judge Yu to show cause and explain why she should not be disciplined for her actions.^[60]

In her explanation,^[61] Judge Yu denied the allegations, and maintained that she had only exercised her freedom of speech; that it was her "statutory right as a judge" to question the "irregular appointment" of a branch clerk of court whom she believed to be lacking in the basic requirements for the position;^[62] that it was "strange to have a jurisprudence on alleged misconduct and insubordination of a judge" based on mere letters; that her letters were privileged communications and could not be used against her, pursuant to her constitutional right against self-incrimination;^[63] that she had no evil intention in writing her letters because she was thereby only expressing her honest-to-goodness opinion without fear of censorship.^[64]

A.M. No. 12-109-METC
(Re: Letter dated 21 July 2011 of Executive Judge Bibiano G. Colasito and Three (3) Other Judges of the Metropolitan Trial Court, Pasay City, For the Suspension or Detail To Another Station of Judge Eliza B. Yu, Branch 47, Same Court)
A.M. No. 11-2399-MTJ
(Amor V. Abad, et al., v. Hon. Eliza B. Yu); and
A.M. No. 11-2378-MTJ
(Executive Judge Bibiano G. Colasito, et al. v. Hon. Eliza B. Yu)
A.M. No. 11-2399-MTJ refers to the complaint^[65] filed by the court staff of MeTC Branch 47 charging Judge Yu with grave misconduct, oppression, gross ignorance of the law and violation of the Code of Judicial Conduct.

In OCA IPI No. 11-2378-MTJ, four MeTC Judges and 70 MeTC court personnel assigned in Pasay City filed two affidavit-complaints dated May 12, 2011^[66] and July 14, 2011,^[67] accusing Judge Yu with: (1) gross insubordination; (2) refusal to perform official duty; (3) gross ignorance of the law or procedure; (4) serious and grave misconduct constituting violations of Canon 3, Rules 3.0 and 3.08 of the Code of Judicial Conduct in relation to Canon 6 of The New Code of Judicial Conduct of the Philippine Judiciary; Sections 1 and 2, Canon 2 of the New Code of Judicial Conduct; and Sections 1 and 2, Canon 4 of the Code of Judicial Conduct; (5) violation of Supreme Court rules, directives and circulars; (6) violation of Canon 1 of the Code of Professional Responsibility; (7) violation of the Lawyer's Oath and her oath of office as judge; (8) oppressive conduct; and (9) violation of Article 231^[68] of the Revised Penal Code.

A.M. No. 12-109-METC relates to the Letter dated July 21, 2011^[69] sent by her fellow Pasay City MeTC Judges, namely: Executive Judge Bibiano G. Colasito (Branch 45), Vice-Executive Judge Bonifacio S. Pascua (Branch 44), Judge Restituto V. Mangalindan (Branch 46), and Judge Catherine P. Manodon (Branch 48), requesting Judge Yu's immediate suspension or detail to another station pending investigation of all the administrative cases filed against her.

The common issue in the three complaints concerned the conduct of Judge Yu in relation to her staff, fellow Judges and other officers of the Supreme Court, her disobedience of the Court's issuances, and her manner of disposing cases.

I. Oppressive conduct towards her staff

The complaining staffmembers of MeTC Branch 47 claimed that Judge Yu had constantly threatened them with administrative complaints;^[70] that she had readily attributed malice upon their actions, and had sown intrigue against their honor;^[71] that she had impulsively declared in open court during the hearing of the case docketed as Civil Case No. M-PSY-10-12032-CV entitled Fabra v. Global Classe that they had engaged in irregular conduct;^[72]that she had berated Mr. Ferdinand Santos even in front of all the other staff members;^[73] and that she had harassed the personnel who had brought administrative complaints against her (i.e. by refusing to sign the applications for leave of Noel Labid and Robert Froilan Thomas, and by requiring them to submit unwarranted documents).^[74]

The complaining staffmembers recalled that at one time they had overheard the respondent uttering:

Mananalo tayo sa kaso sila ang mali. Tayo ang matuwid hindi sila. x x x Ferdie, ready na nga pala yung permit to carry ko. Magdadala aka ng baril, Cal 45.^[75]

by which they had felt threatened; and that seeing the door to the respondent's chamber left wide open, they had sought refuge in the offices of her fellow Judges.^[76]

Judge Yu also trained her sights on the Pasay City MeTC personnel when she requested ACA Bahia to audit the Office of the Clerk of Court for allegedly unremitted fees paid for the ex parte presentations of evidence in replevin cases.^[77] This incident, according to the complaining staffmembers, caused demoralization among the Pasay City court personnel.

II. Disrespectful attitude towards co-judges, SC officers and offices

The complainant Judges charged Judge Yu with being disrespectful towards other Judges when she wrote Vice Executive Judge Caridad G. Cuerdo of the RTC Branch 113, and accused Executive Judge Pedro B. Corrales of the RTC Branch 118, Judge Maria Rosario B. Ragasa of the RTC Branch 108, MeTC Executive Judge Colasito, and MeTC Vice­Executive Judge Pascua with violations of Canon 1, Section 3 and Canon 2, Section 3 of the New Code of Judicial Conduct, and violation of Section 1, paragraph (c) of Presidential Decree No. 1829 (obstruction of justice).^[78]

Allegedly, Judge Yu used herOIC Ferdinand A. Santos in sending the letter to Clerk of Court IV Miguel C. Infante.^[79]The letter insinuated that Judge Gina Bibat-Palamos and Judge Josephine Vito-Cruz had failed to act despite their knowledge on the purported selling of decisions by court employees, pertinently stating:^[80]

Lastly, this court experienced few attempts to withdraw cash bond without motions by including in the orders granting release of cash bonds, including those confiscated, and the public prosecutor did not object for failure to read previous order of confiscation, presumably such order is detached from the court records, as there are instances the pleadings, motions and oppositions are removed from the records, then attached again after investigation of the court as to where is the particular paper. This is something old because for example, Acting Judge Josephine Vito­Cruz was able to sign commitment orders when records show that the accused was arrested and detained already, and this fact was on paper immediately preceding the order that she can read it, if it was not detached and attached again after her order; she was able to sign orders on two arraignments of same accused in different dates in several occasions, and this court noted that in calendaring, there were attempts to mislead by writing it is for arraignment instead of pre-trial that to relay on it, the court will issue two arraignment orders; and lost or detached exhibits that she decided on such point only to know later on the receiving copy of the plaintiff that she decided adversely in the case of Equitable vs. Chua Ty Kuen, Civil Case No. 2-03 for Replevin, as it seems the modus operandi is to win or dismiss cases by argument that the evidence are photocopies, as also in this court's experience in case of People vs. Basa, CC-00-1988 for Reckless Imprudence decided on June 28, 1010, the material exhibits are photocopies, some are not attached in the court records despite existence in the minutes and transcript of records, all these examples are presumably, are warnings of existence of wicked harm in this court. Thus, your office should scrutinize release of cash bonds. Of course, there were complaints of alleged selling of decisions by court staff in cahoots with each other during Judge Gina Palamos and Judge Josephine Vito Cruz who were aware of this money-making devious scheme.

This court hopes that your office will take note of this letter which the contents here were supplied by our judge that deserves to be acted upon swiftly by the Office of the Court Administrator to eradicate, if not lessen corruption in the judiciary.

Moreover, Judge Yu issued a resolution in Civil Case No. B-03-08 entitled Rodelio Hilario v. Shirley Pabilona,^[81]whereby she declared that she was not the co-equal of Judge Vito-Cruz of the Municipal Trial Court in Cardona, Rizal, as follows:

With due respect, the principle of "co-equality" between the two courts provided in paragraph 5 of the motion for reconsideration, to wit, "In essence, the incumbent Presiding Judge cannot over-rule the regular procedure adopted by her predecessor judge, because they are of the same level," finds no application in this case because a predecessor's judge orders can be interfered and encroached upon by the incumbent judge when they are contrary to the principle of equity, existing law and jurisprudence.Moreover, the predecessor judge, Honorable Josephine A. Vito Cruz is a Municipal Trial Court Judge of Cardona, Rizal while undersigned is a Metropolitan Trial Court Judge of Pasay City, their salary grades are not at par with each other so it is quite incorrect with defendant's counsel declaration that the predecessor judge and the incumbent judge are of the same level.^[82] (Bold emphasis supplied)

Aside from her failure to accord the respect due her fellow Judges, Judge Yu was overheard uttering disparaging remarks against Court officers. In one instance, after the OCA SPBLC had recommended Ms. Tejero Lopez to the position of Branch Clerk of Court, Judge Yu made the following statement against Court Administrator Marquez, to wit:

Yang si Midas Marquez na iyan napaka-highly incompetent, kung lalaki lang ako sinuntok ko na iyan, basta gwapo at maganda, mga walang utak. Oh, tandaan nyo yan ha! Iyang OCAD kalaban natin hindi kakampi.^[83]

Judge Yu also said at another occasion:

Iyang auditor na Cielo na iyan, traidor, sana noong pinakain ko nilagyan ko na lang ng lason.

referring to SC Auditor Cielo Calonia who had earlier denied having informed her about court personnel profiting from the collection of ex parte fees.^[84]

The complainants claimed that Judge Yu's disrespectful attitude towards her fellow Judges and the Court's officials constituted a violation of Section 3 of Canon 1, and Section 3 of Canon 2 of The New Code of Judicial Conduct.

III. Gross ignorance of laws, rules and regulations

The complaining staffmembers averred that Judge Yu: (a) had assigned the duty of correcting draft decisions, orders and resolutions to on­ the-job trainees (OJTs) in violation of Memorandum Circular No. 5-2003 entitled Re: Prohibiting the Accommodation of Students to Undergo On-The­Job Training/Practicum in the Different Offices of the Court; (b) had designated an Officer-in-Charge (OIC) for Branch 47, who did not possess the minimum qualifications for the position and without approval from the Court; and (c) had ordered her staff to advetiise and offer for sale the books she had authored in violation of SC Administrative Circular No. 09-99.^[85]

The complainants in A.M. No. 11-2399-MTJ and OCA IPI No. 11-2378-MTJ alleged that Judge Yu: (a) had authorized the prosecution of Criminal Case No. M-PSY-09-08592-CR entitled People v. Ramil Fuentes, et al.^[86] without the presence and prior endorsement of the public prosecutor; (b) had allowed the arraignment of the accused in Criminal Case No. M­PSY-11-13957-CR entitled People v. Balwinder Singh,^[87] and the change of plea by the accused in Criminal Case No. M-PSY-11-13159-CR entitled People v. Lito Manduriao^[88] in the absence of the public prosecutor;^[89] (c) had ordered the presentation of ex parte evidence in Civil Case No. M-PSY-11-12626-CV before the OIC who was not a member of the Bar in violation of Section 9, Rule 30 of the Rules of Court;^[90] and (d) had required the plaintiffs in replevin cases to submit receipts of payment of legal fees under Sections 8(e) and 21(e) of Administrative Circular No. 35-2004, as well as an explanation why they were making payments to the OIC and stenographers during the ex parte presentation of evidence.^[91]

Judge Yu was being held to account also for her failure to protect and uphold the dignity of her court by not castigating the opposing counsels who had physically attacked each other during court proceedings. She was heard to have remarked: Hindi ko sila kinontempt kasi wala naman akong mabibenefit.^[92]

In her comment,^[93] Judge Yu denied the accusations, and attributed malice and fraud to all the complainants, branding their accusation as the manifestation of a "tyranny in numbers."^[94] She dismissed the charges against her as false, frivolous, meritless, and intended to harass her^[95] and destroy her reputation.^[96] She declared that she did not know most of the court employees who had executed and signed the complaint; and warned that they had opened themselves to criminal, civil and administrative liabilities by signing the complaint.^[97]

Anent the charges of gross ignorance of the law, Judge Yu contended that the students who were OJTs had sought permission to report to her court in compliance with their school requirements, but they were told not to carry on judicial tasks;^[98] that the memorandum dated November 2, 2010 was not followed, and was not officially given because of the prohibition against OJTs in the courts;^[99] that Ms. Angelica Rosali had acted only as an observer to comply with her school requirements, as an accommodation of the request of her (Judge Yu's) parents;^[100] that her designation of Mr. Santos as an OIC did not violate CSC Memorandum No. 6-2005 because the position of OIC required trust and confidence;^[101] that she did not order her staffmembers to sell and advertise her books;^[102]that she had cited the counsels disrupting the court proceedings with contempt of court and had imposed the corresponding fines on them;^[103] that there was recent jurisprudence allowing a trial to proceed even in the absence of the public prosecutor provided no prejudice was caused to the State;^[104] that there was a need to verify the case records with respect to the allegations that she had allowed the prosecution of criminal cases in the absence of the public prosecutor because of the complainants' propensity to falsify documents; that the complainants were not the proper parties to raise any issues related to the criminal proceedings;^[105] that there were provisions of the Rules of Court allowing the waiver of certain rights according to the agreement of the parties;^[106] and that the provision on reception of ex parte evidence is merely directory because of the word "may."^[107]

As to the charge of oppression, Judge Yu countered that she had always been kind and generous towards her staffinembers;^[108] that she did not humiliate Mr. Santos;^[109] that she did not terrorize her staffmembers, although she had displayed her anger and displeasure whenever they committed irregularities;^[110] that she had not sown intrigues against her staffmembers, but had constantly reminded them to refrain from committing any graft and corrupt practices;^[111] that in the hearing of the case of Fabra v. Global Classe, she had only replied to the manifestation made by Atty. Agustin Javellana regarding the false and irresponsible acts of her court staffmembers;^[112] that the alleged threat in relation to her licensed firearm was untrue; and that the entering of the incident in the police blotter was libelous.^[113]

Judge Yu denied uttering statements against Court Administrator Marquez, and SC Auditor Calonia.^[114] She said that as far as the resolution alluding to Judge Vito Cruz was concerned, the court minutes were falsified, as to which Ms. Soledad Bassig and the lawyers were co-conspirators; that she harbored no ill will towards Judge Vito-Cruz; that such statement was a rejoinder to the unfair comments of the defendants' lawyer;^[115] that the statement "spoke of the truth" and was not, therefore, defamatory;^[116] that in not furnishing to her the memorandum regarding the resolution prior to filing the administrative complaint, Executive Judge Colasito had deprived her of the opportunity to amend the same "just to suit their whims, caprices and fancies;" and that the filing of the administrative complaint against her had been done treacherously.^[117]

OCA IPI No. 12-2456-MTJ
(Judge Bibiano G. Colasito, et al., all of the Metropolitan Trial Court [MeTC] Pasay City v. Judge Eliza B. Yu, MeTC, Branch 47, Pasay City)
This administrative matter concerned the letter dated January 12, 2012^[118] signed by MeTC Executive Judge Colasito, Vice-Executive Judge Bonifacio S. Pascua, Judge Restituto V. Mangalindan, Jr., and Clerk of Court Miguel C. Infante charging Judge Yu with oppression in issuing the order dated December 1, 2011^[119] in Criminal Case No. M-PSY-09-08592-CR entitled People v. Ramil Fuentes, et al., viz.:

The stenographer in this case Romer Aviles is directed to make and attach the transcript of stenographic notes (TSN) dated September 7, 2011 within ten (10) days from receipt of this order copy furnished to Court Administrator Jose Midas P. Marquez and Assistant Court Administrator Thelma C. Bahia by the process server Maxima Sayo with corresponding return and proof of service and to surrender the tape containing the recorded proceedings on said date to the Officer-in-Charge Ferdinand Santos. Failure to comply with this will compel this Court to issue show cause for contempt of court against the responsible stenographer. Moreover, he and Executive Judge Bibiano Colasito, et al. who are signatories in the false and malicious complaint under OCA IPI No. 11-2378-MTJ alleging gross ignorance of the law of this Court by surreptitiously taking a TSN, minutes and order dated March 22, 2011 of this case on the absence of public prosecutor, when a trial can proceed without public prosecutor is allowed under our existing jurisprudence is directed to explain within seventy-two (72) hours from the receipt of this order why they should not be cited in contempt of court under Rule 71, Section 3(a) and (d) of the Revised Rules of Court. Process server Maxima Sayo is directed to personally serve copies of this order to Executive Judge Bibiano Colasito et al., with corresponding return.

Tentatively set the contempt proceedings February 15, 2012 at 8:30a.m.

SO ORDERED. (Bold emphasis supplied)

To avert a crisis and disharmony in the Pasay City MeTCs, the Court suspended Judge Yu from office effective February 1, 2012.^[120]

In her comment, Judge Yu m'aintains that she validly issued the subject order by virtue of the inherent contempt powers of the court,^[121] and in accordance with the rulings in People v. Godoy and Salcedo v. Hernandez;^[122] that the complainants should have availed of the appropriate relief in questioning the order instead of filing the administrative complaint; and that the OCA could not rule on the propriety of issuing the subject order because doing so was beyond the OCA's power and prerogative.^[123]

OCA IPI No. 11-2398-MTJ
(Josefina G. Labid v. Judge Eliza B. Yu)
This administrative matter stemmed from the complaint filed by Mrs. Josefina G. Labid charging Judge Yu with oppression, gross ignorance of the law, and conduct unbecoming of a judge in connection with the fate of her son, Noel, who had served as Utility Worker I at the MeTC Branch 47.^[124]

Mrs. Labid narrated that in January 2011, Noel had been diagnosed with "Cancer of the floor of the mouth, Stage IV-A;" that Noel had then applied for leave of absence covering the period of his treatment from January 2011 until March 2011, which Judge Yu had approved without any incident;^[125] that being the sole breadwinner of the family, Noel had reported to work on April 4, 2011 against his doctor's advice; that she (Mrs. Labid) had started noticing that Noel would appear exhausted and weak upon arriving home from work; that Noel had confided to her that Judge Yu had directed him to go to different offices in the Supreme Court to deliver copies of her orders and letters, as well as her books or manuals, despite his medical condition;^[126] that shortly after arriving home from work on June 7, 2011, Noel had become delirious and weak due to profuse bleeding in the mouth; that on the following day, she had gone to Branch 47 to inform the staff that Noel would not be reporting to work; that she had then learned that Noel had moved a heavy table inside the office upon the instructions of Judge Yu;^[127] that Noel had reported back to work on June 10, 2011, but his bleeding had recurred and he had been constantly brought to the hospital since then;^[128] that on June 28, 2011, she had submitted Noel's applications for leave at Judge Yu's office covering the periods of June 8 and 9, 2011,^[129] and of June 13-30, 2011;^[130] that she had returned on July 5, 2011 to the sala of Judge Yu, and had then learned that the latter had not signed Noel's application; that she was then told by Court Stenographer Roman Aviles to see and talk with Judge Yu; that she had met with Judge Yu in her chambers, and during their conversation, Judge Yu had allegedly remarked:

Mabait naman ako sa anak mo. Pag-inuutusan ko siya binibigyan ko pa siya ng pera, siguro aabot ng P15,000.00 sa isang taon ang maibibigay ko sa kanya. Pero bakil pumirma siya sa petition na nagsasabi na bobo ako at corrupt? x x x halala pa na dinagdag lang sita ni Emma Sayo kasi di nakatype ang pangalan nila. Kung ganoon ang tingin nita sa akin, bakit di na lang sila magresign?^[131]

that Judge Yu had replied that Noel would be in a better position to address her (Mrs. Labid) concern; that she had begged Judge Yu to sign her son's application for leave, explaining that she had to submit the document before the deadline in order to claim monetary aid from the Supreme Court Health and Welfare Fund; that instead of signing, Judge Yu had left her inside the chambers, and had given instructions to Mr. Santos; that upon her return, Judge Yu had advised that Noel should first submit a medical clearance before she would sign the application for leave; and that she had then appealed to Judge Yu by leaving a handwritten letter requesting the approval on Noel's application.^[132]

Mrs. Labid recalled that she had returned the following day to again plead with Judge Yu, but Mr. Santos had prevented her from seeing Judge Yu and had instead handed her a memorandum for her son that reads as follows:

Dear Mr. Labid,

You have been consistently absent in this court due to sickness. As per record, your absences with leave due to treatment of cancer in the court are as follows: for the whole months of February 2011 and March 2011, you also incur several days absences for April and May 2011 while for the months of June, 2011 you incur 15 days absent (June 8, 9, 13, 14, 15, 16, 17, 21, 22, 23, 24, 27, 28, 29, 30, 2011). Being a government (public servant) employee, you are not suppose to be always absent from your work and if the absences are due to sickness, you must submit original copy of medical certificate. Your continued absence in your work affects the performance of this Court that affects also the performance of your co-employees. As per Civil Service Commission ruling; as a general rule, an employee whose continued absence from his work due to his lingering illness, the Department Head, if he sees to it that the performance of his office is much affected because of the continued absence of such the employee, the Department Head in his own discretion, may ask his superior for a replacement of such employee - thus the affected employee may file for permanent disability or terminal leave.

In view of the above matters, you are required to submit the following documents: Certificate of Fitn ss to Work (if not contagious), Duration of Recovery (from illness) and Certificate of discharge from the hospital (June 17 and 24, 2011) prior to the approval of your leave of absences for the months of June, 2011.

(sgd)
Ferdinand A. Santos
Officer-in-charge^[133]

Mrs. Labid believed that Judge Yu had dictated the contents of the memorandum to Mr. Santos after their previous conversation; and that Judge Yu's unjustified refusal to sign Noel's application for leave had been motivated by malice and ill-will, arising from the administrative complaint against her that Noel had signed and joined. She mentioned that her son had later on died on August 15, 2011.^[134]

In her comment,^[135] Judge Yu denied the imputations of Mrs. Labid. She justified her denial of Noel's application for leave by citing in her undated and unsigned Memorandum^[136] the ruling in A.M. No. 2004-41-SC (January 13, 2005) entitled Re: Memorandum Report of Atty. Thelma C. Bahia against Ms. Dorothy Salgado. She maintained that Mrs. Labid had not submitted the documents she had required.^[137] She denied having received any handwritten letter from Mrs. Labid; and having known of Noel's condition. She insisted that Noel had volunteered to lift the table as part of his job as a utility worker.^[138]

A.M. No. MTJ-13-1821
(Hon. Emily L. San Gaspar v. Hon. Eliza B. Yu)
This administrative matter emanated from the Letter-Complaint of Judge Emily L. San Gaspar-Gito of MeTC Branch 20,^[139] whereby the latter imputed to Judge Yu conduct unbecoming of a judge for constantly sending alarming messages with sexual undertones via Facebook and electronic mail.

Judge San Gaspar-Gito and Judge Yu became acquainted in May 2009 when the latter was the public prosecutor pinch hitting at the MeTC Branch 20 in Manila where the former presided as Judge. They became Facebook friends upon Judge Yu's initiative, and Judge San Gaspar-Gito accepted her request as a matter of courtesy.^[140] Judge San Gaspar-Gito claimed that Judge Yu normally sent long messages that she had ignored most of the time.^[141] On August 30, 2009, Judge San Gaspar-Gito received in her Yahoo account a peculiar message from Judge Yu, as follows:

NATIONAL HEROES DAY'S THANK YOU Sunday, August 30, 2009 6:02 PM

From: "ELIZA YU" 

To: emily_san_gaspar@yahoo.com
      1 File (82KB)
 

 (see image p. 37)

 MEAL STUB

Hon, thank you for your MEAL STUB ... when and where can I claim it?
take care & love you.^[142]

Judge Yu sent another message to Judge San Gaspar-Gito's Facebook account with the subject Meal Stub, to wit:

__________________________________ August 31, 2009 __________________________________

Eliza B. Yu                                                                                                       9:20am
MEAL STUB

dear ems, i sent your meal stub at your yahoo account to honor you this national heroes day. it's good you gave me an idea of your preferred sexual position, there's no need to study that 69, you'll get it from me spontaneously ... that's easy, pulled down your underwear, and eat what's in between your thighs ... but you have to pay me $10 first ... He He He! take care and see you later...^[143] (Bold emphasis supplied)

The message contained an attachment similar to the image of a man and a woman juxtaposed in a 69 position appearing in the previous Yahoo message.^[144] Judge San Gaspar-Gito ignored both communications, but Judge Yu continued sending more puzzling messages to the complainant's Face book account, viz.:

__________________________________ September 1, 2009 __________________________________

Eliza B. Yu                                                                                                     11:21pm
YOUR MEAL STUB ...

giving me FEVER honey ... YOU ARE KEEPING ME WIDE AWAKE. I need a bath no not a bath ... I need a sex therapist He He He

BLOWN KISS?? I haven't claim yet my meal stub now you are sending me a blown kiss ... why don't you send me your cell no. asap so we can practice your fave 69?

__________________________________ September 2, 2009 __________________________________
Eliza B. Yu
PRO LOVE (No Jokening Here)                                                                    7:43am

YES TO LOVE NO TO LUST!!
Why naman you are heating me up out of your hundreds FB friends?
HHHmmm ... don't fall in love online kasi you
are not supposed to kiss, kiss a pc monitor ... He He He
No dialogues from you lately, are we in a silent "titillating" movie?
Wala ba tayong rehearsals dito? FAMAS award na rin ba tayo?
Buti na lang magaan loob ko sa iyo,
SOUL MATES tayo. Isasauli ko na ang meal stub mo ... wala naman
nakalagay when and
where to claim, wala ring cell phone no. mo (siguro trip mo lang mag send ng lewd pic kasi photographer ka in your past life, lewd photographer ... He He He).
Dami kong tanong sa iyo, pero impersonal kasi ang
computer kaya wala na akong masyadong tanong online ... maliban sa ano na ba civil status mo, MAINIT KA MASYADO?? Yung photo profile mo, dina "cute little devil" ...
ikaw ay "red hot and horny"^[145] na ... tandaan mo
honey NO TO CYBERSEX! NO TO PHONE SEX! PAY ME $10 FIRST BEFORE 69 (prone to HIV AIDS na sexual position ang 69 kaya sa swimming pool yan ginagawa). Take care and see you later.

__________________________________ September 4, 2009 __________________________________
Eliza B. Yu                                                                                                       9:24pm
2 VISITS

hey ems, i really miss you, so i plan to visit you at your chamber this sept. 1 and 21. are you available at these dates?? pls. reply. take care and see you later.

Eliza B. Yu                                                                                                        9:47pm

hey, wish me good luck for my report tom at justice rene corona's class, it's a "MIXED NUTS" feelings to have a future chief justice as an audience (he's a "terrorist" ... he he he ... but he did not give me a HIGH FEVER unlike you! ha ha ha!) pls. tell me what time you will be at your chamber this sept. 7 and 21 so i can visit you? PREPARE THE $10.x's and o's.^[146]

Confounded, Judge San Gaspar-Gito finally confronted Judge Yu on the messages. Instead of giving a direct reply, Judge Yu continued sending puzzling messages. Their exchanges ran as follows:

__________________________________ September 6, 2009 __________________________________
Eliza B. Yu                                                                                                      10:41am
CLUELESS INQUIRER

hey what's that meal stub and 69, got no idea about it? Does my fb send something to everyone? Ami in a game? huh, m wondering!

Eliza B. Yu                                                                                                     10:44am
A TRIBUTE TO ELVIS PRESLEY

Wise Men say
only fools rush in
but I cant help
falling in love with you

Shall I stay
would it be a sin
if I can't help falling in love with you...

Like a river flows, surely to the sea
Darlin so it goes, somethings are meant to be..
Take my hand, take my whole life too
for I can't help fallin in love with you...

Like a river flows, surely to the sea
Darlin so it goes, somethings are meant to be..

Take my hand take my whole life too for I can't help
falling in love with you

for I cant help falling in love with .... You.

x x x x x x x x x x x x
__________________________________ September 12, 2009 __________________________________
Eliza B. Yu                                                                                                        7:07am
MOVIES

hey since you are a movie buff, watch "BROKEBACK MOUNTAIN", you will enjoy the sex between 2 cowboys in a tent. The 1st sex was made out of lust while the 2nd sex was made out of love! In the movie, the "measure of love was not jealousy but sacrifice."

__________________________________ September 14, 2009 __________________________________
Eliza B. Yu                                                                                                        8:43am
l'Hymne A l'Amour

Hey, after watching "Brokeback Mountain", I recommend you to watch "When Night Is Falling", there was a sizzling (red hot) sex between a university literature professor at a religious college and a free-spirited circus performer inside a tent, too just like "Brokeback Mountain". Certainly, you will enjoy "When Night Is Falling" more than "Brokeback Mountain" because you liked Edith Piafs "l'Hymne A l'Amour."

x x x x x x x x x x x x
__________________________________ September 17, 2009 __________________________________
Eliza B. Yu                                                                                                       7:23pm
MOVIE AGAIN

Star Cinema's "In My Life," the ABS-CBN Movie outfit's grandest film offering for 2009, earned a record P20 million in ticket sales on its first day of screening. I don't recommend you and Owen this move (but Gener, Tiya and Yaya would enjoy watching this together ... He He He) TAKE CARE!

__________________________________ September 18, 2009 __________________________________

x x x x x x x x x x x x

Eliza B. Yu                                                                                                       7:00am
Some Kind

honey i'm some kind of sloth at home and enjoy much freedom, and i miss you, tsup! tsup! tsup! take care always. see you later!

__________________________________ September 18, 2009 __________________________________
Emily San Gaspar                                                                                          11:18pm

I think i would be watching in my life, have you watched it? Is it nice?

__________________________________ September 19, 2009 __________________________________
x x x x x x x x x x x x
Eliza B. Yu                                                                                                        4:07pm
IN MY LIFE

hey fb sweetie, ems not that i don't want to accompany you in a movie house, it's just that you succeeded heating me up with that 69 meal stub, it will be dangerous ... to watch this in my life movie together, i may go down on you in a movie house that would be highly scandalous ... I will give you a dvd/vcd of it, I will go to video shops for it tomorrow (whether you have watched it or not, even I did not recommend it to you) ... i am trying to shrug off a fuzzy, groovy feeling with you, OH NO! anyways, take care, take care, take care, i knew you have convention next week. if you are interested to join with us at GUMBO resto next week, just say so (dean froilan is a great guy, and a genius, interesting to meet him, this i recommend to you). Oh, i still have to give you complimentary copies of my articles published in the lawyers review. you gotta wait, i keep my promises. see you later . x's and o's for you. p.s. movie watching is not my ideal activity with you (it's at the bottom of the list, i rather watch you than tagalog movies).^[147]

Judge San Gaspar-Gito decided to deactivate her Facebook account. Yet, the deactivation did not deter Judge Yu from sending messages to Judge San Gaspar-Gito's Yahoo account to expr ss her disagreement over the Facebook deactivation, thus:

[No Subject]                                                          Friday, September 25,2009 6:14PM

From: "ELIZA YU" 
To: emily_san_gaspar@yahoo.com

Dear Emily, what happened to your FB account?
I told you to rest, I understand that it's so tiring
after travelling, our bodies crave sleep!
If I have your mobile no., I could have flown there
and joined you. Still, I believe there is plenty of time
ahead of us. Anyway, I did not mean you stay away
from Facebook or me... COME ON, tell me, you are joking
giving up Facebook ... you have ovet 190 friends, they will
MISS you. You have my no. still (09175217828), you can contact me,
you should contact me, I am not running away from you, rain or shine.
I will stay even I am a problem. Take care always.
Talk and see you later. Of course, God bless us.^[148]

Facebook                                                          Monday, September 28, 2009 5:45PM

From: "ELIZA YU" 
To: emily_san_gaspar@yahoo.com

Dear Emily, I raised the issue
before, about 4 months ago, about your
membership in Facebook, your
answer was acceptable...

Your declaration about consensus
in the convention seems to be an
after-thought, logic rejects it
as plausible. But I BELIEVE you.
There is no reason not to TRUST you.
I also understand the consensus.

Because you seemed HAPPY connecting
to your friends particularly those very
far in FB, it's not a smart choice to sacrifice
your happiness at the expense of consensus.
Also, there are ways to circumvent
the consensus' prohibition. You can change your
name to your nickname, and remove traces that
will link it to your work. You blended your
work with your personal life in FB,
of course your work's nature extend to your
personal life, the price you pay, not because of
the demand of your work, it's the price for your
your idealism with your work. It's up to
you what perspective you take, you
are intelligent, you ought to choose the best
option. Your FB speaks a lot about you.
You may not talk much about yourself in mails
but by reading your posts and looking at
your photos, you give clues of yourself,
you leave lots of fingerprints online.
Deactivating it is not the best option,
For now...

By the way, our office told me, I cannot
troubleshoot in your court, because you
have two prosecutors already NO ROOM FOR ME THERE.
I told the staff to call you up about this.
I promised to troubleshoot next month, which
is not possible to happen. I learned that your
court was Hooded, I was at home when notified,
I failed to help you clean up the mess. That's why,
there is the importance of mobile connection.
Besides, I will only call you if I have your cell no.
not text you. An1way, take care always.
God bless you.^[149]

PS                                                                      Monday, September 28, 2009 6:06PM

From: "ELIZA YU" 
To: emily_san_gaspar@yahoo.com

ems, don't be like
MeTC magistrate (one of
Your judges pals according to your FB posting) who
permanently dismissed a case on the ground of
speedy trial when accused
jumped bail.

When there was a MR by
the prosecutor, it was
granted on the basis of
substantive justice.

Of course, there was double jeopardy
already, the MR was granted
correctly. And the pemanent (sic)
dismissal was wrong.

You are intelligent, you
finished your law schooling at
24 years old ranked 5^th in your
class ... DO NOT DE-ACTIVATE
YOUR FACEBOOK FOR MORE THAN
3 MONTHS.
Talk and see you later.^[150]

Oh God, I Forgot ...                                          Monday, September 28, 2009 8:47PM

From: "ELIZA YU" 
To: emily_san_gaspar@yahoo.com

Tsup! Honey, next time you re-activate your FB,
pls. change your ...
PHOTO PROFILE
DELETE:
Your Status, Birthday,
School, Work,
and all your PHOTOS.
it's OK to be wild online...
Be cautious and prudent.
Take care always.

Couple of weeks, I will be very busy will [sic] school
papers due to ending sem and
my second wind, will re-lobby
for my promotion.
Sept 30, I have lunch with ...
Oct 1, I have dinner with ...
Oct 2, I have appointment with ...
Oct 3, I have my last report
 I have dinner at Gumbo for Dean's birthday
Oct 5, I have lunch at Aristocrat
Oct 6, I have cocktail at Manila Hotel
Oct 7, I have appointment at Ajinomoto
Oct 8, I will meet ...
Oct 9, I will meet another ...

I am regular troubleshooter, too.
I will see you later. Of course, I miss you.
God bless. MWAH! tsup ...^[151]

A month after sending the meal stub message, Judge Yu apologized for said message, to wit:

I AM SO SORRY ...                                            Saturday, October 3, 2009 6:22AM

From: "ELIZA YU" 
To: emily_san_gaspar@yahoo.com

Hello there Emily, I found out that Facebook sent
unauthorized gifts (lewd ones) to its account
subscribers, I asked my classmates if they sent
this and that gift applications and they said no.

I am so sorry for my nonsense replies to
that 69 gift application I received from your
Facebook account (which you wondered).
Now, I believe it was not you who sent it to me.
I could have been a Facebook computer system error
or maybe a Facebook prank hacker.

I deleted all your emails. I hope
you will delete my emails to you also
including this email for peace of mind
and as a safety measure.
OH FORGET ALL MY EMAILS TO YOU SINCE JUNE AFTER
READING & RIDDING THIS APOLOGY EMAIL. Deal??
This is our MOA.

It's a good choice to deactivate your Facebook
account - it will bring you good harm.
Sometimes, you have to convince yourself
that your status has changed a lot, you change friends, you change status, change lifestyle and
... leave Face book.

I cannot deactivate my Facebook account,
it was Dean Froilan Bacungan who invited me to
join. I created my Facebook account for him.
Thank you. Take care always.
God bless you.

I'M SO SORRY AGAIN ... I gave you lots
of trashes online. Anyway, emails are easy to delete.^[152]

Judge Yu subsequently sent an e-mail with a subject that read: "CONGRATS 4 UR ELECTION AS P.R.O. CDO METC NATIONAL CONVENTION, W/ MORE REASON 2 DELETE MY EMAILS 2 U. TY. GOD BLESS," but without an accompanying message.^[153]

A few weeks later, Judge Yu confronted Judge San Gaspar-Gito regarding the reactivation of her Facebook account in the following manner:

CHILL OUT                                                           Friday, October 23, 2009 2:13AM

From: "ELIZA YU" 
To: emily_san_gaspar@yahoo.com

Hey Milay, I have a trouble shooting assignment
this coming Monday (October 26) in MeTc Branch 23,
I will pass by your court for sure,
I will drop by, unless I'm in a bad mood
like you today! Chill out ... it's basic, when the answer
to the question is obvious DO NOT ANSWER!
Why did you re-activate your Facebook account?
Oh No, you gave a wrong answer!
As expected, you are an Oscar awardee, remember?
Hhhmmm... lots of Oscar trophies you quite
collected at Facebook (He He He).
Nobody can prohibit you in the
exercise of your POLICE POWER in the
Facebook - that's the force of lust (He He He).
Your little siesta wants your photos?

Of course not, you look prettier in person
than in photos. I don't think your
prettiest photo can substitute the real you,
you are so warm in person.
Take care always.^[154]

Judge San Gaspar-Gito was prompted to explain that her sister had used her Facebook account,^[155] but Judge Yu apparently disbelieved the explanation and retorted instead:

Be Right Back                                                      Friday, October 23, 2009 10:42PM

From: "ELIZA YU" 
To: emily_san_gaspar@yahoo.com

Hello there Ems, the sister act explanation was cool! I'm sure it will be accepted by your MeTCJAP in case it found out you still maintain a Facebook account notwithstanding its express prohibition. Congrats, you seemed to be a member of the "palusot".com! (He He He)

What is the name of your sister? You mean having same parents? Affinity? Sorority? Job-related? Religious Organization? I thought you were the youngest child. Did I hear it right, you said while I was looking at your gold medal on the wall, you have 5 siblings? Going back to your sister, why would she do that? First, isn't she confident enough to be herself online? Second, she is unaware that it will put you in harm by feigning to be you? Third, did you not warn her? Fourth, Why did you tolerate her? You could have changed your password anytime so she cannot have an access.

I thought it was definitely a rude answer(@ yahoo) as to why you re activated you Facebook account? Only, I cannot judge you or anyone online, ifs not my task to do so. As I said before, it is OK to be wild, wild, wild online.

Actually, your FB account was checking my FB account at those times you de-activated it. I laughed at you ... oh no, not you ... now, your sister for it. Still, it was the reason for my writing of "daily activity" entries at FB that I was doing OK - after you went "PUFF" at FB, without saying any goodbye. Of course, I may deserve it, you may expect something, I failed to write, like a visit perhaps. But you did not give me your mobile no. so no seeing, only reading mails. Hhhmmm ... so your sister got my mobile no. also. It's so cool! There is a possibility, it was your sister, I talked to online or did those stuff which I believed it was you from June to October. Well, then, I should meet your sister! Is she living with your popsie? What is the name your father? Let us then visit them.

Anyway, I have to go, I will visit the Franciscan missionary after this. I will donate biscuits and fruit juices for the abandoned children. I have a favourite cousin, with an awesome academic credentials and very pretty, who is a miraculous real, real in flesh, real in her words and deed, a sister belonging to the Franciscan missionary. She was assigned in Italy for almost 10 years as a nun, and she can read, write, Italian. I have to buy her a cake, it's her birthday today. Doesn't Italy means an abbreviation of I Trust And Love You?

I will talk to you later. I will drop by at your court on October 26, for sure am to pass by in going or coming from MeTc Branch 23, my first time to go there. I'm so accessible, so simple. It was you, or it was your sister, should I say, that make things complicated. The article, "A Tribute to a Great Mentor", it was your sister who wrote it? Well, Justice Angelina Sandoval Gutierrez is her ideal woman. A tall order. Oh no, no need to tell me the orientation or preference of the author of the article by mere reading of it. Take care always. God bless you always. Be right back.^[156]

The following day, Judge Yu sent another lengthy message apologizing for her previous actions.^[157] But to add more confusion, Judge Yu sent a message on November 17, 2009 containing a La Paz Bachoy recipe, but with a notation at the end reading: we shall claim the 69 meal stub in a dirty kitchen.^[158]

Aside from attributing to Judge Yu the sending of messages containing sexual innuendos, Judge San Gaspar-Gito accused her of creating a fake Facebook account under the name "Rudela San Gaspar." That account contained captured photographs, including that of the complainant's son allegedly taken from her deactivated account. Judge San Gaspar-Gito confronted Judge Yu and threatened to initiate an administrative complaint. This threat prompted the respondent to take down the fake account.^[159]

The complainant also received a message on April 2, 2010 with an attached image of a boy holding a pair of scissors,^[160] and a sign reading Full Brazillian 5¢.^[161]

The last straw came on July 4, 2010 when Judge San Gaspar-Gito received a message from her friend, Juliet Tabanao-Galicinao, informing her that a certain Bambi Yu had inquired about her sexual orientation, viz.:

Juliet Tabanao-Galicinao July 4 at 12:15am
(no subject)

Milay:

Some crazy woman e-mailed me. Her name is bambi yu. I accepted her on Facebook because she told me you were friends. Then last Friday, she sent me a weird message asking if you were bisexual. I promptly answered her and after that, I deleted her from my facebook list, as well as any common friends we might have. I am telling you this so you will be warned that there are envious people like this. I am copying here the contents of our exchange for your own records.

as follows:

bambi yu:

I read your post about judge of the year award to Milay today. I was about to comment but your post disappeared. She wrote me months ago that she closed her Facebook account because it became a Pandora's box. I'm curious, is she an AC DC?? (I am actually laughing) You are listed as among her best friends, you must be competent to answer this inquiry. Rest assured that this is highly confidential. Thanks. God bless..

Juliet Tabanao-Galicinao July 2 at 8:19am what is an AC DC?

Bambie Yu July 2 at 3:48pm Report

AC DC is non-offensive slang for bisexual. Is she a bisexual? Thanks for replying. Judges have limited correspondence here at FB..

Juliet Tabanao-Galicinao July 2 at 8:45pm

Hi! Emily is definitely not bisexual. We have been friends and roomates in school for ages and I can honestly say she is straight. She is also very happily married with one kid. I am not saying this because we are friends. I am just stating a fact. I am not offended though. Glad I was able to correct a mistake. What made you think so? (just wondering)

Bambie Yu July 3 at 5:48am Report

What made me think Milay is an AC DC? It does not matter. While I thank you for your honest to goodness answer, and I would like to return the favor by answering your question but judges have restrictions and limited correspondence online. Judges are expected to be courteous to fellow judges. I promised not to speak or write anything about Emily that would put her in bad light. I honor my promises. She has high aspirations in the judiciary which we should support. Besides, we are enemies for judicial excellence awards. You can ask her directly the question please. She is the only one who can answer it correctly. My lips are sealed this time. Have a nice day. Thank you. God bless!

Bambie Yu July 3 at 6:04am Report

PS: Just to take advantage of your generosity, because Emily broke her vow not to open her Facebook account which she claimed to be Pandora's box, can you do me a little favor, to ask her to delete all my emails? She told me she kept all my old emails despite my instruction to delete them after reading. Our emails contained gossips which will lead to our disbarment as honorable members of the bar. Thus, I was anxious to learn from your post that hinted she opened up her Facebook account again yesterday, this meant she broke a vow. My emails may still be there, and I have waited for her assurance that she have deleted all. I did not receive any such assurance from her that my emails are gone except that she closed her FB account. I was relieved with that closed FB account until yesterday. I kept writing her before to delete my emails. She does not reply. Anyway, I am not going to speak anything bad against her. I would be glad if I will get an assurance from you, as her bestfriend, that she already deleted the emails. We are not speaking to each other because we have a huge misunderstanding and, I said earlier, we are enemies, mortal enemies for the judicial excellence award.

Thank you again & good day.^[162]

Judge San Gaspar-Gito formally filed the present administrative complaint on July 12, 2010.^[163]

Judge Yu submitted her comment by way of a compliance dated October 12, 2010,^[164] and attached her own complaint-affidavit charging Judge San Gaspar-Gito with conduct unbecoming of a judge, and requesting the OCA to conduct a discreet investigation on the complaint.^[165] She manifested that she had come upon two versions of Judge San Gaspar-Gito's complaint.^[166]


The following day, Judge Yu wrote to the OCA expressing her dissatisfaction over the investigation being conducted by the OCA.^[167]

On October 22, 2010 Judge Yu submitted a supplemental manifestation arguing that Judge San Gaspar-Gito did not only violate the Code of Judicial Ethics, the Civil Code and the Revised Penal Code, but also Republic Act No. 8792, specifically Section 32^[168] on confidentiality of electronic messages. She described the complaint letters as poison letters, and denied all the material averments stated therein.^[169]

Judge San Gaspar-Gito submitted her reply.^[170]

Judge Yu wrote the OCA on March 18, 2011 formally withdrawing her complaint against Judge San Gaspar-Gito.^[171]

On July 22, 2011, Judge Yu sent a letter to Judge San Gaspar-Gito's brother, Atty. Reynaldo L. San Gaspar,^[172] to wit:

REPUBLIC OF THE PHILIPPINES
National Capital Judicial Region
METROPOLITAN TRIAL COURT
Branch 47, Pasay City
Tel. No. 831-1109

July 22, 2011

Atty. Reynaldo L. San Gaspar
No. 154 P. Talavera St.,
Pakil, 4017, Laguna

Dear Atty. San Gaspar:

Our court is inviting you for a brief conference in our court on August 5, 2011 around 1:00 p.m. to 4:00 p.m. or any available and convenient time and place for you, to clarify matters pertaining to the two (2) letters both dated July 12, 2010 of your sister Judge Emily L. San Gaspar-Gito. She can come with you if she wants to.

Your cooperation is highly appreciated.

Thank you.

Very truly yours,

(sgd.)
Judge Eliza B. Yu

Copy furnished:
Judge Emily L. San Gaspar-Gito
Metropolitan Trial Court Branch 20, Manila

In the meantime, the Court referred the matter to the Court of Appeals (CA),^[173] and directed Judge San Gaspar-Gito to allow the Chief of the Management Information System Office (MISO) to gain access to her Facebook and Yahoo accounts.

Pursuant to the Court's directive, the MISO accessed the Yahoo and Facebook accounts of Judge San Gaspar-Gito. Later on, Mr. Alexander M. Arevalo, the Acting Chief of the MISO, submitted his report,^[174] attaching and certifying to the messages/communications extracted from the Yahoo and Facebook accounts of Judge San Gaspar-Gito.^[175]

In her memorandum,^[176] Judge Yu accused Judge San Gaspar-Gito with dishonesty and violation of the right to privacy.^[177] She insisted on her innocence, claiming that Judge San Gaspar-Gito had sent her the meal stub with the attached image; that based on her research, the image was a photo engraving by Felicien Rops for Le Diable au Corps in 1865,^[178] which should be treated as an artwork rather than as pornography;^[179] that she had treated the message as a joke, but Judge San Gaspar-Gito would continually send similar graphics through the Facebook gift section everytime she would ask her to troubleshoot in her sala;^[180] that she did not send some of the messages to Judge San Gaspar-Gito whom she knew to be very much married;^[181] that she had become alarmed upon learning that Judge San Gaspar-Gito had repeatedly read her messages, and had treated the same as "treasures" that she had refused to delete;^[182] and that her messages were intended to be "double entendres" and should not be considered as having any sexual connotations but instead as having been innocently uttered.^[183]

In her September 26, 2013 manifestation,^[184] Judge Yu attached a copy of her credit card bill supposedly showing that she had been charged $10.00 when she opened the meal stub sent by Judge San Gaspar-Gito. She posited that the lewd graphics had originated from Judge San Gaspar-Gito who had tampered the electronic messages submitted as evidence herein.^[185]

Regarding her exchanges with Ms. Galicinao, Judge Yu invoked the exclusionary rule because she did not give her consent to use the private messages as evidence.^[186]

CA Associate Justice Hakim S. Abdulwahid conducted the investigation, and scheduled several hearings. It appears that despite notice, Judge Yu did not appear in the hearings, and instead manifested her willingness to submit the matter for decision based on the records. She also waived her attendance, including the right to cross examine the complainant,^[187] in order to avoid generating "hostile feelings and antagonistic views" upon the entry of appearance as counsel of Atty. Gener Gito, Judge San Gaspar-Gito's husband.^[188]

Justice Abdulwahid submitted his Report and Recommendation dated September 26, 2013,^[189] wherein he recommended the suspension from office of Judge Yu for a period of three months due to simple misconduct and conduct unbecoming of a judge. He concluded that the barrage of inappropriate messages sent by Judge Yu, as well as her stalking through the internet, constituted conduct unbecoming of a judge; and that her use of her court's letterhead to summon the complainant's brother fell under the category of simple misconduct.

Recommendation and Evaluation of the Office of the Court Administrator
On October 13, 2015, the Court directed the OCA to submit a comprehensive evaluation, report and recommendation on the consolidated cases.^[190]

The OCA complied through Deputy Court Administrator (DCA) Jenny Lind R. Aldecoa-Delorino^[191] by submitting a Memorandum^[192] containing the following recommendation:

RECOMMENDATION: It is respectfully recommended for the consideration of the Honorable Court that respondent Judge Eliza B. Yu, Branch 47, Metropolitan Trial Court, Pasay City, be found GUILTY of INSUBORDINATION, GROSS IGNORANCE OF THE LAW, REFUSAL TO PERFORM OFFICIAL FUNCTIONS, GROSS MISCONDUCT AMOUNTING TO VIOLATION OF THE CODE OF JUDICIAL CONDUCT, GRAVE ABUSE OF AUTHORITY, OPPRESSION, and CONDUCT UNBECOMING OF A JUDGE, and be DISMISSED FROM THE SERVICE with forfeiture of all benefits, except accrued leave credits, and disqualification from reinstatement or appointment to any Rublic office including government-owned or controlled corporations.^[193]

The OCA recommended that the charges of gross ignorance of the law in allowing OJTs to perform judicial work and directing the court staff to sell the books authored by Judge Yu, as well as the allegation of malicious utterances against Court Administrator Marquez should be dismissed for being unsubstantiated;^[194] and upheld Judge Yu's requiring the plaintiffs with pending replevin cases to pay legal fees for transcripts, pursuant to her judicial prerogative to ensure that court funds were properly accounted for.^[195]

The OCA declared Judge Yu's refusal to comply with A.M. No. 19-2011 and to honor the appointments of Ms. Lagman and Ms. Tejero-Lopez as insubordination; Judge Yu's letter to DOT Secretary Lim as gross misconduct, and a violation of Section 6, Canon 4 of the New Code of Judicial Conduct; Judge Yu's conduct in relation to the request for sick leave by Noel Labid, and the appointment of Ms. Tejero-Lopez as oppression;^[196] regarded as gross ignorance of the law Judge Yu's acts of allowing the criminal proceedings in her court to continue without the presence of the public prosecutor, and of ordering the reception of evidence by the OIC who was not a member of the Bar;^[197] and considered Judge Yu's issuance of the show cause order against Executive Judge Colasito, et al. as grave abuse of her authority.^[198]

The OCA agreed with the recommendation and findings of Justice Abdulwahid to consider Judge Yu's actuations towards Judge San Gaspar­ Gito as conduct unbecoming of a judge, but clarified that Judge Yu's use of the official letterhead of her court in summoning the brother of Judge San Gaspar-Gito to a conference demonstrated her abuse of power, and constituted a violation of Section 8, Canon 4 of the New Code of Judicial Conduct.^[199]

Ruling of the Court
We agree with the findings and recommendations of the OCA.

I
Noncompliance with A.O. No. 19-2011
Judge Yu forthwith resisted the implementation of A.O. No. 19-2011 because of her unresolved protest against the issuance. She explained that her compliance with A.O. No. 19-2011 would render her protest moot. But her unresolved protest was not a sufficient justification for her to resist the implementation of A.O. No. 19-2011. She was quite aware that A.O. No. 19-2011 was issued pursuant to Section 6, Article VIII of the Constitution, which confers to the Court the power of administrative supervision over all courts,^[200] and was for that reason an issuance to be immediately implemented and unquestioningly obeyed by the affected Judges.

The resistance by Judge Yu to the the implementation of A.O. No. 19-2011 was unexpected. She was quite aware that A.O. No. 19-2011 was not a mere request for her to comply with only partially, inadequately or selectively,^[201]or for her to altogether disregard. At the very least, her resistance to A.O. No. 19-2011 manifested an uncommon arrogance on the part of a Judge of a court of the first-level towards the Court itself. Such attitude smacked of her unbecoming condescension towards the Court and her judicial superiors. We cannot tolerate her attitude lest it needlessly sows the seeds of aiTogance in others that can ultimately destroy the faith and trust in the hierarchy of courts so essential in the effective functioning of the administration of justice.

Moreover, Judge Yu's resistance to the implementation of A.O. No. 19-2011 disrupted the orderliness of the other Pasay City MeTCs to the prejudice of public interest. This effect became unavoidable, for Executive Judge Colasito necessarily required the other courts to render additional night court duties to cope with her refusal to render night court duties.

Judge Yu compounded her condescension towards the Court and her judicial superiors by her bypassing them to directly communicate her personal reservations about A.O. No. 19-2011 to Secretary Lim, the proponent of holding the night courts, and other quarters like the police authority in Pasay City. Her reservations extended to assailing the legal foundation and the practicality for holding the night courts. Her doing so broadcast to them the notion that obedience to A.O. No. 19-2011 and similar issuances of the Court could be deferred at the whim and caprice of a lowly­ ranked judicial officer like her. Although she might have regarded her reservations as impressed with outstanding merit, that was no justification for her to defer or reject the implementation of A.O. No. 19-2011 in her court for any length of time, and to be public about it. A.O. No. 19-2011 dealt with an administrative matter on the administration of justice and procedure over which the Court was the supreme and sole authority. She should have the maturity to know so, and to bow her head before that authority. Her freedom to exercise her constitutional right to free speech and expression was not a consideration. She had no privilege to disobey; hers was but to follow.

Judge Yu's having directly communicated her misgivings about A.O. No. 19-2011 to Secretary Lim and to other quarters was beyond forgiving by the Court. She thereby strongly hinted that the Court was altogether wrong and impractical about holding night courts. What she accomplished from such exercise was to broadcast how little regard she had for the Court and its issuances. Her attitude constituted an open insubordination that extensively diminished the respect owed to the Court by the public, especially by the latter who were directly affected in the implementation of A.O. No. 19-2011. There is no question that when a Judge becomes the transgressor of the law that she has sworn to uphold, she places her office in disrepute, encourages disrespect for the law, and impairs public confidence in the integrity of the Judiciary itself.^[202]

It is timely for the Courrto use this occasion to remind Judge Yu and other judicial officers of the land that although they may enjoy the freedoms of speech and expression as citizens of the Republic, they should always conduct themselves, while exercising such freedoms, in a manner that should preserve the dignity of their judicial offices and the impartiality and independence of the Judiciary. As to this duty to observe self-restraint, Section 6, Canon 4 of the New Code of Judicial Conduct for the Philippine Judiciary is clear and forthright, viz.:

Sec. 6. Judges, like any other citizen, are entitled to freedom of expression, belief, association and assembly, but in exercising such rights, they shall always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.

For sure, Judge Yu's expression of her dissent against A.O. No. 19-2011 was misplaced. We may as well declare that she did not enjoy the privilege to dissent. Regardless of her reasons for dissenting, she was absolutely bound to follow A.O. No. 19-2011. Indeed, she did not have the unbridled freedom to publicly speak against A.O. No. 19-2011 and its implementation, for her being the Judge that she was differentiated her from the ordinary citizen exercising her freedom of speech and expression who did not swear obedience to the orders and processes of the Court without delay.^[203] Her resistance to the implementation of A.O. No. 19-2011 constituted gross insubordination and gross misconduct,^[204] and put in serious question her fitness and worthiness of the honor and integrity attached to her judicial office.^[205]

According to Himalin v. Balderian,^[206] the refusal of a Judge to comply with any resolution or directive of the Court constituted insubordination and gross misconduct, viz.:

[A] judge who deliberately and continuously failed and refused to comply with a resolution of this Court was held guilty of gross misconduct and insubordination, the Supreme Court being the agency exclusively vested by our Constitution with administrative supervision over all courts and court personnel from the Presiding Justice of the Court of Appeals to the lowest municipal trial court clerk. The Court can hardly discharge such constitutional mandate of overseeing judges and court personnel and taking proper administrative sanction against them if the judge or personnel concerned does not even recognize its administrative authority.

Insubordination is the refusal to obey some order that a superior officer is entitled to give and to have ob yed. It imports a willful or intentional disregard of the lawful and reasonable instructions of the employer.^[207] Judge Yu's obstinate resistance to A.O. No. 19-2011 displayed both her rebellious character and her disdain and disrespect for the Court and its directives.

Judge Yu's unwillingness to comply with A.O. No. 19-2011 was also a betrayal of her sworn duty to maintain fealty to the law,^[208] and brought dishonor to the Judiciary. In that regard, her conduct amounted to gross misconduct, defined as follows:

Misconduct means intentional wrongdoing or deliberate violation of a rule of law or standard of behavior in connection with one's performance of official functions and duties. For grave or gross misconduct to exist, the judicial act complained of should be corrupt or inspired by the intention to violate the law, or a persistent disregard of well-known rules. The misconduct must imply wrongful intention and not a mere error of judgment.^[209]

In all, Judge Yu exhibited an unbecoming arrogance in committing insubordination and gross misconduct. By her refusal to adhere to and abide by A.O. No. 19-2011, she deliberately disregarded her duty to serve as the embodiment of the law at all times. She thus held herself above the law by refusing to be bound by the issuance of the Court as the duly constituted authority on court procedures and the supervision of the lower courts. To tolerate her insubordination and gross misconduct is to abet lawlessness on her part. She deserved to be removed from the service because she thereby revealed her unworthiness of being part of the Judiciary.^[210]

II
Refusal to honor the appointments of court personnel
Although Judge Yu insisted on the irregularity of the appointment of Ms. Tejero-Lopez for lack of personal endorsement from her as the Presiding Judge, and of the appointment of Ms. Lagman due to a pending administrative complaint, the appointments of Ms. Tejero-Lopez and Ms. Lagman were valid and regular. As such, Judge Yu had no good reason to reject the appointments.

To start with, Ms. Tejero-Lopez and other applicants had undergone scrutiny and processing by the duly constituted committee, and the OCA had then signed and executed the appointment. Nonetheless, the authority to appoint still emanated from the Court itself.^[211] Judge Yu's objection to Ms. Tejero-Lopez's appointment for lack of her personal endorsement was not enough to negate the appointment. Judge Yu had no right to reject the appointment, making her rejection another instance of gross insubordination by her. This consequence has been elucidated in Edaño v. Asdala,^[212] as follows:

[R]espondent Judge Asdala, in insisting on the designation of respondent Nicandro as OIC, blithely and willfully disregarded the Memorandum of this Court, through the OCA, which approved the designation of Amy Soneja alone and not in conjunction with respondent Nicandro - as OIC. While the presiding judge, such as respondent Judge Asdala, can recommend and endorse persons to a particular position, this recommendation has to be approved by this Court. Again, the respondent judge ought to know that the Constitution grants this Court administrative supervision over all the courts and personnel thereof. In the case at bar, despite the Court's approval of Amy Soneja's designation, the respondent judge allowed, if not insisted on, the continued discharge of the duties of OIC by respondent Nicandro. Respondent Judge Asdala even had the gall to insist that as presiding judge she has the authority and discretion to designate "anyone who works under her, as long as that person enjoys her trust and confidence." Coming from a judge, such arrogance, if not ignorance, is inexcusable. The memorandum from the OCA regarding the designation of court personnel is no less an order from this Court. Court officials and personnel, particularly judges, are expected to comply with the same. Respondent judge's gross insubordination cannot be countenanced.^[213]

Judge Yu could only recommend an applicant for a vacant position in her court for the consideration of the SPBLC, which then accorded priority to the recommendee if the latter possessed superior qualifications than or was at least of equal qualifications as the other applicants she did not recommend.^[214] The SPBLC explained to Judge Yu the selection process that had resulted in the appointment of Ms. Tejero-Lopez. She could not impose her recommendee on the SPBLC which was legally mandated to maintain fairness and impartiality in its assessment of the applicants^[215] based on performance, eligibility, education and training, experience and outstanding accomplishments, psycho-social attributes and personality traits, and potentials.^[216]

Secondly, Judge Yu's rejection of the appointment of Ms. Lagman was just as unwarranted.

Under Section 34, Rule II of the Uniform Rules on Administrative Cases in the Civil Service (URACCS),^[217] a pending administrative complaint shall not disqualifY an employee from promotion, thus:

Section 34. Effect of the Pendency of an Administrative Case. - Pendency of an administrative case shall not disqualify respondent from promotion or from claiming maternity/paternity benefits.

For this purpose, a pending administrative case shall be construed as follows:

a. When the disciplining authority has issued a formal charge; or

b. In case of a complaint filed by a private person, a prima facie case is found to exist by the disciplining authority.

The rule, which is reiterated in Section 42 of the Revised Rules on Administrative Cases in the Civil Service(RRACCS) of 2011,^[218] cannot be interpreted otherwise.

Accordingly, Judge Yu's administrative complaint had no bearing on Ms. Lagman's appointment, more so because Ms. Lagman was held liable only for simple misconduct, a less grave offense that did not merit termination from public service for the first offense.^[219] It is relevant to point out, too, that Judge Yu had no personality to object to or oppose Ms. Lagman's appointment, considering that only a qualified next-in-rank employee has been recognized as a party-in-interest to file the protest in accordance with paragraph 1.6.1, Article IX of the 2002 Revised Manual of Clerks of Court.^[220]

Thirdly, we also take Judge Yu to task for disrespectful language uttered against the Court, no less. She characterized the appointment of Ms. Tejero-Lopez as "void ab initio" and "a big joke." The use of such language in assailing the Court's exercise of its absolute power of appointment was highly offensive and intemperate. She thereby disregarded her obligation to show respect and deference toward the Court and its officials. She was thereby guilty of another serious misconduct.

And, fourthly, Judge Yu issued verbal threats of filing administrative, civil and criminal charges against Ms. Tejero-Lopez unless she withdrew her application. Judge Yu reiterated the threats in her letter dated June 14, 2011 addressed to Atty. Pabello.^[221] Ms. Tejero-Lopez felt intimidated enough because she actually withdrew her application (although she later went on with it). The making of the verbal threats by Judge Yu to compel a subordinate to withdraw her application constituted grave abuse of authority on the part of Judge Yu. Grave abuse of authority is committed by a public officer, who, under color of his office, wrongfully inflicts upon a person any bodily harm, imprisonment, or other injury; it is an act characterized with cruelty, severity, or excessive use of authority. Also, the intimidation exerted upon Ms. Tejero-Lopez amounted to oppression, which refers to an act of cruelty, severity, unlawful exaction, domination or excessive use of authority.^[222]

III
Issuing a show-cause order against fellow Judges and court personnel
According to the OCA, Judge Yu gravely abused her authority in issuing the show-cause order against his fellow Judges, the complainants against her in OCA IPI No. 11-2378-MTJ. The OCA rendered its finding thereon, as follows:

This Office finds it absolutely irregular for respondent Judge Yu to require the complainants in OCA IPI No. 11-2378-MTJ to explain within seventy-two (72) hours upon receipt of notice why they should not be cited in contempt for surreptitiously taking the TSNs, orders and minutes of the proceedings in Criminal Case No. M-PSY-09-08592-CR and using these as part of their attachments to their complaint. As the respondent in OCA IPI No. 11-2378-MTJ, respondent Judge Yu has no authority to summon the complainants (Executive Judge Colasito, et al.) because it is only the Supreme Court who has the power to issue directives requiring the parties in an administrative case to appear and to present their respective arguments in support of their position.

Not only is her directive misplaced, it also shows respondent Judge Yu's utter lack of respect and disdain for the Supreme Court. It must be noted that the parties in Criminal Case No. M-PSY-09-08592-CR (the accused Ramil Fuentes et al. and the plaintiff Republic of the Philippines) are outsiders to the administrative controversy between respondent Judge Yu and the complainants in OCA IPI No. 11-2378-MTJ. However, respondent Judge Yu acted as if she was the investigating authority instead of being the respondent. She took undue advantage of her position as a judge and used the judicial process for her own benefit. Such action clearly depicts an abusive character which has no place in the judiciary. (Bold emphasis supplied)^[223]

The issuance of the show-cause order by Judge Yu represented clear abuse of court processes, and revealed her arrogance in the exercise of her authority as a judicial officer. She thereby knowingly assumed the role of a tyrant wielding power with unbridled breadth. Based on its supervisory authority over the courts and their personnel, the Court must chastise her as an abusive member of the Judiciary who tended to forget that the law and judicial ethics circumscribed the powers and discretion vested in her judicial office.

Nothing extenuated Judge Yu's abuse of authority and arrogance. Instead of accepting the error of her ways, Judge Yu defended her conduct by insisting on having the authority to initiate contempt proceedings against her fellow Judges and court personnel. She supported her insistence by citing the rulings in People v. Godoy,^[224] Zaldivar v. Sandiganbayan,^[225] and Salcedo v. Hernandez.^[226] But the cited rulings had no relevance at all. People v. Godoyrelated to the contemptuous newspaper article involving a case that the trial court had decided. Zaldivar v. Sandiganbayan required the Tanodbayan-Ombudsman, a party in the case, to explain his contumacious remarks about an ongoing case to the media. Salcedo v. Hernandez concerned the contemptuous remarks by counsel for the petitioner in a motion filed before the Court. In short, the factual settings for the cited rulings involved parties or counsel of the parties, while the factual setting in this administrative matter concerned the act of merely copying the records of Judge Yu's court for purposes of producing evidence against her in the administrative cases her fellow Judges and the concerned court employees would be initiating against he. The latter were not parties in any pending case in her court.

Moreover, the Court notes that Judge Yu's issuance of the show-cause order emanated from her desire to retaliate against her fellow Judges and the concerned court employees considering that the allegedly contumacious conduct was the copying of court records to be used as evidence in the administrative complaint against her. She thereby breached her duty to disqualify herself from acting at all on the matter. Such self-disqualification was required under Section 5, Canon 3, and Section 8 of Canon 4 of the New Code of Judicial Conduct for the Philippine Judiciary, viz.:

Section 5. Judges shall disqualify themselves from participating in any proceedings in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where:

(a) The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings;

x x x x

Section 8. Judges shall not use or lend the prestige of the judicial office to advance their private interest, x x x.

By insisting on her inherent authority to punish her fellow Judges for contempt of court, Judge Yu wielded a power that she did not hold. Hence, she was guilty of gross misconduct.

IV
Refusal to sign the application for leave of absence and other allegations of oppression
The 2002 Revised Manual for Clerks of Court governs the approval of an application for sick leave by court "personnel. Paragraphs 2.2.1^[227] and 2.2.2,^[228] Chapter X of the 2002 Revised Manual requires the submission of a medical certificate or proof of sickness prior to the approval of the application for sick leave, thus:

2.2.1 Application for sick leave

All applications for sick leave of absence for one (1) full day or more shall be made on the prescribed form and shall be filed immediately upon the employee's return from such leave. Notice of absence, however, should be sent to the immediate supervisor, and/or agency head. Application for sick leave in excess of five (5) successive days shall be accompanied by a proper medical certificate.

x x x x

2.2.2. Approval of sick leave

Sick leave shall be granted only on account of sickness or disability on the part of the employee concerned or of any member of his immediate family.

Approval of sick leave, whether with pay or without pay, is mandatory provided proof of sickness or disability is attached to the application in accordance with the applicable requirements. Unreasonable delay in the approval thereof or non-approval without justifiable reason shall be a ground for appropriate sanction against the official concerned. (Emphasis supplied)

Noel Labid complied with the 2002 Revised Manual by submitting the medical certificate and the clinical abstracts issued and certified by the Medical Records Division of the Philippine General Hospital (PGH). The medical certificate indicated that he had been suffering from "Bleeding submandibular mass in hypovolemic shock Squamous cell Carcinoma Stage IV floor of mouth,"^[229] while the clinical abstracts dated June 14, 2011^[230] and June 23, 2011^[231] indicated the same reason for his hospital admission. However, Judge Yu was unconvinced by such submissions, and adamantly refused to approve Noel's leave application supposedly based on the ruling in Re: Memorandum Report of Atty. Thelma C. Bahia against Ms. Dorothy Salgado.^[232]

Judge Yu apparently misapplied the cited ruling.

Re: Memorandum Report of Atty. Thelma C. Bahia against Ms. Dorothy Salgado concerned the habitual absenteeism of the respondent court personnel, and her belated submission of the medical certificates proving her illness. Crucial was the finding that despite several attempts by her office to contact the respondent and to inquire on her situation, she had deliberately failed to inform her superior of her absence and her condition. This is not the same in the case of Noel.

Under paragraph 2.1.2^[233] of the 2002 Revised Manual, heads of offices like Judge Yu possessed the authority to confirm the employee's claim of ill health. Being aware of Noel's true medical condition after having met with Mrs. Labid who had seen her to plead for the approval of her son's leave application, Judge Yu was not justified in demanding a prior written notice about Noel's serious medical condition. Neither was she justified in still requiring Noel to submit the certificate of fitness to work considering that he had yet to report for work.

Noel's medical certificate and clinical abstracts had sufficiently established the reason for his absence and his hospital admission. Despite his obvious critical condition, Judge Yu chose to ignore the medical records certified by a government health institution, and unjustifiably demanded the submission of documents that the 2002 Revised Manual did not require. Judge Yu did not convincingly establish that her actions came within the limits of her authority as a court manager, or were sanctioned by existing court regulations and policies. Her unjustified refusal to approve Noel's leave application exposed her to administrative sanction under paragraph 2.2.2 of the 2002 Revised Manual. Accordingly, Judge Yu was again guilty of grave abuse of authority.

It is not hard to believe that Judge Yu deliberately refused to sign Noel's leave application in order to cause additional hardship to him in retaliation for his joining the administrative complaint against her. We consider to be credible Mrs. Labid's narration that Judge Yu had expressed her resentment towards Noel for his signing the complaint against her. By acting so, therefore, Judge Yu was vindictive, and exhibited indifference to the plight of the critically ill subordinate in urgent need of assistance. She was guilty of oppression, which is any act of cruelty, severity, unlawful exaction, domination or excessive use of authority constituting oppression.^[234] Her oppression did not befit an administrator of justice.

Nonetheless, we dismiss the other allegations of oppression towards the staffmembers of Branch 47 for failure of the complainants to substantiate the same. In administrative cases, the complainant bears the burden of proving by substantial evidence the allegations in his complaint.^[235]

V
Charges of gross ignorance of the law
I. Allowing on-the-job-trainees

In OCA IPI No. 11-2399-MTJ, the complainants charged that Judge Yu had allowed on-the-job trainees (OJTs) to have access to court records. She denied this charge, however, and claimed that the students were merely "observers" because of the prohibition. The OCA found this charge unsubstantiated.

We do not agree with the OCA's finding.

The memorandum dated November 2, 2010^[236] issued by Judge Yu indicated her intention to delegate the duties of an encoder to a certain Ms. Angelica Rosali, one of the OJTs concerned, thus:

MEMORANDUM
TO: Mrs. Amor Abad, Officer-in-Charge, Mr. Romer Aviles and Mr. Froilan Robert Tomas, Stenographers, Mrs. Emelina San Miguel, Records Officer, Mrs. Maxima Sayo, Process Server, and Ms. Angelica Rosali, Encoder.

RE: Preference of Typing Orders, Encoding of Monthly Report, Submission of Monthly Report, Typing of Pro-Forma Notices and Orders and Other Related Concerns

In the interest of service, the stenographers are ordered to type first the orders on sentence, dismissal and archival of cases within the day of issuing the same in open court. Said orders must be placed at the court's chambers before 2:00 p.m. for signature after checking of the case titles and dates by the office[r]-in-charge. Thereafter, after (sic) signing of these orders by the undersigned judge, these will be forwarded to the encoder of the monthly report. The encoder shall encode immediately these orders upon receipt thereof. The encoder shall be responsible for the typing of newly filed criminal and civil cases, the cases submitted for decision, and the cases decided, dismissed and archived. Upon receipt of the newly filed criminal or civil cases within a day, the officer-in­charge shall place them, at the court's chambers. After the evaluation of these cases, the undersigned judge shall instruct the officer-in-charge to turn over these cases to the encoder for typing. Thereafter, after (sic) these newly filed criminal and civil cases are typed and printed within the day, a copy shall be furnished to the undersigned judge. The said cases will be given by the officer-in-charge to the records officer and process server for safekeeping. The monthly report must be submitted within the 1^st week up to the 2^ndweek of the following month.

All other orders must be typed within the week after their issuance in open court. Every Friday, the Officer-in-Charge must see to it that all orders issued within the week are typed within the same week.

After the receipt of the printed copy of the newly filed civil and criminal cases from the encoder, the undersigned judge shall instruct the officer-in-charge to calendar these cases and to delegate fairly the typing of the notices of these cases. The officer-in-charge is directed to mimeograph the forms of subpoenas, summons, other notices, order to file an answer or counter-affidavit in cases covered by the Rule on Summary Procedure, order for the issuance of warrant of arrest, warrant of arrest, commitment order, minutes, pre-trial order and such other pro-forma orders as determined by this Court subject to delegation. With respect to an order on archiving of a case, there must be a corresponding warrant of arrest. The Officer-in-Charge is responsible for the checking of the correct name of the case title, date, parties and addresses of these pro­forma orders subject to delegation. Erroneous typing of case title, date, parties and addresses, among others is considered gross inefficiency if committed ten (10) consecutive times, and it calls [f]or an explanation. If re-committed another ten (10) consecutive times, this merits disciplinary sunction. (Emphasis supplied)

For strict compliance.

Thank you.

(Sgd.) Eliza B. Yu
Judge

That the memorandum was not disseminated to the person concerned, and that it was not implemented were immaterial to the charge. The fact that Judge Yu issued the memorandum naming Ms. Rosali, a student, as the encoder and assigning to her court duties similar to those of a regular court employee signified Judge Yu's intention to treat Ms. Rosali as a trainee instead of as a mere observer. Ms. Rosali denied in her sinumpaang salaysay^[237] that she had received the memorandum and performed encoding tasks, but nonetheless confirmed that she was directed to docket the decisions and staple the returns. The other student "observers," namely: Ms. Johaira O. Mababaya, Ms. Catherine L. Sarate and Mr. Eduardo M. Pangilinan III, also attested that they had conducted their court observation as "assistant court stenographer."

Under the circumstances, Judge Yu could not feign ignorance of the tasks assigned to and performed by the OJTs. If she had been strict about accepting student trainees, then she should not have assigned court-related tasks. In this regard, Judge Yu deliberately ignored OCA Circular No. 111-2005 in prohibiting OJTs, thus:

OCA CIRCULAR NO. 111-2005
TO : THE COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX APPEALS, REGIONAL TRIAL COURTS, SHARI'A DISTRICT COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, MUNICIPAL CIRCUIT TRIAL COURTS, SHARI'A CIRCUIT COURTS

SUBJECT: MEMORANDUM CIRCULAR NO. 5-2003 Re: PROHIBITING THE ACCOMODATION OF STUDENTS TO UNDERGO ON-THE-JOB TRAINING/PRACTICUM IN THE DIFFERENT OFFICES OF THE COURT

The Supreme Court En Banc in its Resolution dated 6 September 2005, in A.M. No. 05-7-16-SC, Re: Analysis of the Current Judicial System Using Information Technology by Student of the De La Salle University, Resolved to direct the undersigned to CIRCULARIZE to all lower courts Memorandum Circular No. 05-2003 dated 25 June 2003, to wit:

"MEMORANDUM CIRCULAR NO. 5-2003
PROHIBITING THE ACCOMMODATION OF STUDENTS TO UNDERGO ON-THE-JOB TRAINING/PRACTICUM IN THE DIFFERENT OFFICES OF THE COURT

It is observed that some offices of the Court allow students of different colleges and universities to undergo on-the-job training/practicum without authority or approval by the Chief Justice.

Due to security reasons which prompted the Court to deny previous requests of colleges and universities for on-the-job training/practicum, it is noted that the practice of some offices allowing students to undergo on-the-job training/practicum jeopardizes not only the functions of some offices but also their confidential records. Notably, the accommodation of these students pose as a security risk.

ACCORDINGLY, in order to ensure the security of officials and employees of the Court as well as its records, all Chiefs of Offices/Services/Divisions of the Court, including those of the Presidential Electoral Tribunal, Judicial and Bar Council and the Philippine Judicial Academy, are hereby directed to disallow on-the-job training/practicum in their respective offices/services/divisions.

x x x x

The provision of the above memorandum shall likewise apply to all trial courts to serve as a guide for similar requests of students and as reflective of the policy of the Court on the matter.

For the information and guidance of all concerned.

x x x x (Emphasis supplied)

II. Designating an Officer-in-Charge

Judge Yu designated as OIC of Branch 47 of the MeTC Mr. Ferdinand Santos, who occupied the position of Clerk III. Under the 2002 Revised Manual, the position of Clerk III fell under the first level position with a minimum educational requirement of two years of college studies,^[238] and a career service sub-professional eligible.^[239] The position of Clerk of Court III was a second level position with a minimum educational requirement of a Bachelor of Laws degree, at least one year relevant experience, four hours of relevant training, and a professional career service eligible.^[240]

On the other hand, the CSC Memorandum Circular No. 06-05 dated February 15, 2005 provides the following guidelines:

CSC MEMORANDUM CIRCULAR NO. 06-05

TO:	All Heads of Constitutional Bodies; Departments, Bureaus and Agencies of the National Government; Local Government Units; Government-Owned or Controlled Corporations; and State Universities and Colleges

SUBJECT: Guidelines on Designation

In its Resolution No. 050157 dated February 7, 2005, the Commission has adopted the following guidelines on Designation in the civil service:

x x x x

B. Designees can only be designated to positions within the level they are currently occupying. However, Division Chiefs may be designated to perform the duties of third level positions.

First level personnel cannot be designated to perform the duties of second level positions.

x x x x (Emphasis supplied)

Designating a first-level personnel like Mr. Santos as OIC defied CSC Memorandum Circular No. 06-05 because the position of OIC was reserved for personnel belonging to the second level. It becomes immaterial whether nobody from Branch 47 opposed the designation because the memorandum circular expressly prohibits designation of first level personnel to a second level position. It is emphasized that the memorandum is crafted in the negative; hence, the memorandum is mandatory, and imports that the act required shall not be done otherwise than designated.^[241]

Judge Yu's contention that the designation of the OIC was based on trust and confidence had no basis. We underscore that the OIC referred to here was the acting Branch Clerk of Court (Clerk of Court III). The 2002 Revised Manual enumerates the following duties and responsibilities of a branch clerk of court, viz.:

1.3.1 Adjudicative Support Functions

1.3.1.1	Attends all court sessions
1.3.1.2	Supervises the withdrawal of all records of cases to be heard and the preparation of the notices of hearings, court's calendar, reports, minutes, monthly reports, inventory of cases, index of exhibits, and paging of records of cases;
1.3.1.3	Sees to it that all returns of notices are attached to the corresponding evidence properly marked during the hearing as collected in an exhibit folder; and
1.3.1.4	Signs notices of orders and decisions for service to the parties, release papers of detained prisoners who are acquitted and/or who filed their corresponding bail bonds duly approved by the presiding judge.

1.3.2 Non-Adjudicative Functions

1.3.2.1	Plans, directs, supervises and coordinates the activities of all personnel in a branch of a multiple sala for effectiveness and efficiency;
1.3.2.2	Keeps tab of the attendance and whereabouts of court personnel during office hours;
1.3.2.3	Controls and manages all court records, exhibits, documents, properties and supplies;
1.3.2.4	Administers oath;
1.3.2.5	Issues certificates of appearances and clearances;
1.3.2.6	Drafts/prepares correspondence and indorsements for signature :of the Judge; and
1.3.2.7	Performs other duties that may be assigned to him.

Clerks of court are officers of the law who perform vital functions in the prompt and sound administration of justice. Their office is the hub of adjudicative and administrative orders, processes and concerns. They perform delicate functions as designated custodians of the courts funds, revenues, records, properties and premises.^[242] The functions of a clerk of court require a higher degree of education as well as understanding of the law and court processes, that they cannot be delegated to first level personnel such as Mr. Santos. The position requires not only trust and confidence, but most importantly, education and experience. Ineluctably, the respondent ignored the clear import of CSC Memorandum Circular No. 06-05 in designating Mr. Santos as OIC.

III. Ordering presentation of ex parte evidence before the OIC who was not a member of the Bar

Judge Yu argued that she did not commit any irregularity in ordering the presentation of ex parte evidence before herOIC who was not a member of the Bar because the rule on the reception of evidence by a member of the Bar was only directory under Section 9, Rule 30 of the Revised Rules of Civil Procedure, which uses the word may.

Judge Yu's argument does not impress.

Section 9, Rule 30 of the Revised Rules of Civil Procedure expressly requires that only clerks of court who are members of the Bar can be delegated to receive evidence ex parte, thus:

Section 9. Judge to receive evidence; delegation to clerk of court. - The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. However, in default or ex parte hearings, and in any case where the parties agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of the bar. The clerk of court shall have no power to rule on objections to any question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his report and the transcripts within ten (10) days from termination of the hearing. (Emphasis supplied)

The word may used in the rule related only to the discretion by the trial court of delegating the reception of evidence to the Clerk of Court, not to the requirement that the Clerk of Court so delegated be a member of the Bar. The rule on ex parte reception of evidence was unequivocal on this point, and required no elaboration. Neither the agreement by the parties nor their acquiescence could justify its violation.^[243] It followed that Judge Yu could not validly allow the presentation of evidence ex parte before Mr. Santos who was a mere OIC because he was not a member of the Bar. Breach of the rule on reception of evidence represented her ignorance of the rule of procedure in question, and subjected her to administrative liability for misconduct.^[244]

IV. Allowing criminal proceedings without the actual participation of the public prosecutor

Anent the charge that she allowed the prosecution of criminal actions without the presence of the public prosecutor, Judge Yu retorted that the complainants were not the proper parties to assail her orders; that the accused in People v. Manduriao had begged to be arraigned without counsel after being informed of the penalty for the offense charged; and that the trial of the case could proceed without the public prosecutor, b ut not in the absence of a judge.^[245]

We are appalled that a Judge like the respondent would explain herself in such a fundamentally wrong manner.

Section 5, Rule 110 of the Rules of Court states:

Section 5. Who must prosecute criminal actions. - All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. In case of heavy work schedule or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution Office to prosecute the case subject to the approval of the Court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to the end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn.

x x x x

Accordingly all criminal actions shall be prosecuted under the control and direction of the public prosecutor.^[246] The true reason is that the prosecution of criminal offenses is always a public function.^[247] In People v. Ramos,^[248] we cautioned that the exception stated in Section 5, supra, should be strictly construed, thus:

The exception provided in Section 5 must be strictly applied as the prosecution of crime is the responsibility of officers appointed and trained for that purpose. The violation of the criminal laws is an affront to the People of the Philippines as a whole and not merely the person directly prejudiced, who is merely the complaining witness. This being so, it is necessary that the prosecution be handled by persons sldlled in this function instead of being entrusted to private persons or public officers with little or no preparation for this responsibility. The exception should be allowed only when the conditions therefor as set forth in Section 5, Rule 110 of the Rules on Criminal Procedure have been clearly established.

In Pinote v. Ayco,^[249] the Court castigated the respondent judge for allowing the presentation of the defense witnesses in the absence of the public prosecutor or the private prosecutor specially designated for the purpose. A breach of the Rules of Court like that could not be rectified by subsequently giving the Prosecution the chance to cross-examine the witnesses. Judge Yu committed a flagrant error by allowing the direct examination of the defense witness without the public prosecutor, or without the private counsel duly authorized by the public prosecutor in Criminal Case No. M-PSY-09-08592-CR.

In addition, Judge Yu disregarded Section 6, Rule 116 of the Rules of Court when she allowed the change of plea by the accused in People v. Manduriao without the assistance of counsel. Judge Yu justified herself by claiming that she had apprised the accused of the penalty for the offense charged, which had then convinced the accused to change his plea.

The Court cannot accept her justification. In Gamas v. Oco,^[250] we took the respondent judge to task for conducting an arraignment without the presence of counsel, and observed:

Section 6 of Rule 116 means that:

[W]hen a defendant appears [at the arraignment] without [an] attorney, the court has four important duties to comply with: 1-It must inform the defendant that it[,] is his right to have [an] attorney before being arraigned; 2-After giving him such information the court must ask him if he desires the aid of attorney; 3-If he desires and is unable to employ [an] attorney, the court must assign [an] attorney de oficio to defend him; and 4-If the accused desires to procure an attorney of his own the court must grant him a reasonable time therefor.

Compliance with these four duties is mandatory. The only instance when the court can arraign an accused without the benefit of counsel is if the accused waives such right and the court, finding the accused capable, allows him to represent himself in person. However, to be a valid waiver, the accused must make the waiver voluntarily, knowingly, and intelligently. In determining whether the accused can make a valid waiver, the court must take into account all the relevant circumstances, including the educational attainment of the accused. In the present case, however, respondent judge contends that complainants waived their right to counsel and insisted on their immediate arraignment.^[251]

The justification that the accused had waived his right to counsel, and had changed his plea after the respondent Judge had explained to him the imposable penalty for the offense did not stand considering that in order that the waiver by the accused of his right to counsel would be valid, the trial court must ensure that the accused did so voluntarily, knowingly and intelligently, taking into account the capacity of the accused to give such consent. We have nothing to show that Judge Yu took the pains to enforce the safeguards.

Every judge was expected to know the fundamental substantive and procedural requirements on arraignment and right to counsel.^[252] We have always been clear about the right of the accused to counsel under the Constitution, and about the requirements for the arraignment of an accused under the Rules of Court. As such, Judge Yu was guilty of gross ignorance of the law, which is ignorance of the law when the law is so elementary, and when one professes not to know it, or when one acts as if she does not know it. Canon 6 of the New Code of Judicial Conductprescribes that competence is a prerequisite to the due performance of the judicial office. In Judge Yu's case, her competence was indispensable to her fair and proper administration of justice in her office. By failing to adhere to and implement existing laws, policies, and the basic rules of procedure, she seriously compromised her ability to be an effective magistrate.

VI
Sending of inappropriate messages was conduct unbecoming of a judicial officer
Judge Yu denied sending the messages to Judge San Gaspar-Gito, and countered that it was the latter who first sent the "meal stub" message. She maintained that the messages were confidential and inadmissible as evidence under the exclusionary rule.

Judge Yu's reliance on the exclusionary rule fails.

The exclusionary rule, or the fruit of the poisonous tree doctrine, presupposes a violation of law on the part of the agents of the Govemment,^[253] and bars the admission of evidence obtained in violation of the right against unreasonable searches and seizures expressly defined under Section 2, Article III of the Constitution.^[254] The exclusionary rule under Section 3(2), Article III of the Constitution refers to the prohibition against the issuance of general warrants that encourage law e nforcers to go on fishing expeditions.^[255]

Judge Yu did not specify that the State had unlawfully intruded into her privacy. The subjects of the present inquiry were the messages sent by her to Judge San Gaspar-Gito. Regardless of the mode of their transmission, the ownership of the messages pertained to the latter as the recipient. Considering that it was the latter who granted access to such messages, there was no violation of Judge Yu's right to privacy. As such, the grant of access by Judge San Gaspar-Gito did not require the consent of Judge Yu as the writer.^[256] To recall, the Court directed the MISO to retrieve the messages for purposes of these cases.^[257] Based on the certification issued by the authorized MISO personnel,^[258] the messages were extracted from the Yahoo and Facebook accounts of Judge San Gaspar-Gito with the use of her official workstation. Hence, the exclusionary rule did not apply.

Judge Yu denied the imputed significance of the messages.

The denial lacked persuasion. In her October 3, 2009 message to Judge San Gaspar-Gito's Yahoo account, Judge Yu apologized to Judge San Gaspar-Gito, and expressly clarified that Judge San Gaspar-Gito had not sent the "meal stub." Judge Yu even requested Judge San Gaspar-Gito to "forget all [her] emails ... since June ..."^[259] This apologetic tone from Judge Yu rendered her denial of responsibility devoid of substance.

Moreover, the barrage of messages, most of which were sent within the same day, makes us believe that they had all come from Judge Yu. Although she insisted that Judge San Gaspar-Gito had sent the "meal stub," Judge Yu did not offer any plausible explanation on the other messages containing sexual innuendos.

It is notable that the Facebook and Yahoo messages started in August 2009 when Judge Yu was still a public prosecutor. Nonetheless, she could still be disciplined for such acts committed prior to her appointment to the Judiciary because her internet stalking of Judge San Gaspar-Gito continued after she had herself become a MeTC Judge in Pasay City on January 12, 2010 and lasted until July 2010.

Our reading of the messages supports the studied conclusions by CA Justice Abdulwahid that they did contain sexual insinuations that were ostensibly improper for a Judge to write and send to another. The messages, however they may be read and understood, were at least vexatious and annoying. In any case, the sender showed her deep-seated proclivities reflective of conduct unbecoming of a member of the Judiciary.

Finally, the OCA submits that Judge Yu's use of the letterhead of her office or court in summoning to a conference Atty. Reynaldo San Gaspar, the brother of Judge San Gaspar-Gito, constituted abuse of power, and violated Section 8, Canon 4 of the New Code of Judicial Conduct, thus:

Respondent Judge Yu's use of the letterhead of Branch 47, MeTC, to invite Atty. Reynaldo San Gaspar, complainant Judge Gito's brother, to her court is no different from the aforecited cases. Respondent Judge Yu's letter reads as follows:

Our court is inviting you for a brief conference in our court on August 5, 2011 around 1:00 p.m. to 4:00 p.m. or any available and convenient time and place for you, to clarify certain matters pertaining to the two (2) letters both dated July 12, 2010 of your sister Judge Emily L. San Gaspar-Gito. She can come with you if she wants to.

Your cooperation is highly appreciated.

Thank you.

It is worthy to note that aside from appropriating the court's letterhead, respondent [J]udge Yu used the words "our court" to invite Atty. San Gaspar for the purpose of clarifying matters relative to the ongoing controversy between her and complainant Judge Gito. Even for an ordinary layman, receiving a letter from the court would already create the impression that his presence in the said venue is compulsory. Indeed, the letter to Atty. San Gaspar is a clear illustration of how respondent Judge Yu abuses her power as a member of the bench so that others would give in to her wishes. She undoubtedly took advantage of her position and used the same as a leverage against complainant Judge Gito who filed a case against her. This is patently a violation of Section 8, Canon 4 of the New Code of Judicial Conduct which mandates that judges shall not use the prestige of such office to advance their personal interests.^[260]

The submission is well-founded.

In Ladignon v. Garong,^[261] we discoursed on the liability of Judges for using their official letterhead to advance their personal interests, thus:

x x x In Rosauro v. Kallos, we found the respondent Judge liable for violating Rule 2.03 of the Code of the Judicial Conduct when he used his stationery for his correspondence on a private transaction with the complainant and his counsel parties with a pending case in his court. The Court held:

By using his sala's stationery other than for official purposes, respondent Judge evidently used the prestige of his office x x x in violation of Rule 2.03 of the Code.

We do not depart from this rule on the use of official stationary. We clarify, however, that the use of a letterhead should not be considered independently of the surrounding circumstances of the use-the underlying reason that marks the use with the element of "impropriety" or "appearance of impropriety". In the present case, the respondent Judge crossed the line of propriety when he used his letterhead to report a complaint involving an alleged violation of church rules and, possibly, of Philippine laws. Coming from a judge with the letter addressed to a foreign reader, such report could indeed have conveyed the impression of official recognition or notice of the reported violation.

The same problem that the use of letterhead poses, occurs in the use of the title of Judge or Justice in the correspondence of a member of the Judiciary. While the use of the title is an official designation as well as an honor that an incumbent has earned, a line still has to be drawn based on the circumstances of the use of the appellation. While the title can be used for social and other identification purposes, it cannot be used with the intent to use the prestige of his judicial office to gainfully advance his personal, family or other pecuniary interests. Nor can the prestige of a judicial office be used or lent to advance the private interests of others, or to convey or permit others to convey the impression that they are in a special position to influence the judge. (Canon 2, Rule 2.03 of the Code of Judicial Conduct) To do any of these is to cross into the prohibited field of impropriety.^[262]

In the letter in question, Judge Yu used the phrase "our court" in issuing the invitation to Atty. San Gaspar. She was obviously intending to use her authority as an incumbent Judge to advance her personal interest. Such conduct was reprehensible because she thereby breached Section 4 of Canon 1 and Section 1 of Canon 4 of the New Code of Judicial Conduct, viz.:

CANON 1
INDEPENDENCE
x x x x

SECTION. 4. Judges shall not allow family, social, or other relationships to influence judicial conduct or judgment. The prestige of judicial office shall not be used or lent to advance the private interests of others, nor convey or permit others to convey the impression that they are in a special position to influence the judge.

CANON 4
PROPRIETY
Propriety and the appearance of propriety are essential to the performance of all the activities of a judge.

SECTION 1. Judges shall avoid impropriety and the appearance of impropriety in all of their activities.

x x x x

The Penalties
In fine, the administrative offenses Judge Yu committed were the following, to wit:

1. In A.M. No. MTJ-12-1823, insubordination and gross misconduct for her non-compliance with A.O. No. 19-2011;
   
2. In A.M. No. MTJ-13-1836 and A.M. No. MTJ-12-1815, gross insubordination for her unwarranted refusal to honor the appointments of court personnel and rejection of the appointment of Ms. Lagman; disrespect toward the Court for her intemperate and disrespectful language in characterizing Ms. Tejero-Lopez's valid appointment as void ab initio and a big joke; and grave abuse of authority and oppression for issuing verbal threats of filing administrative, civil and criminal charges against Ms. Tejero-Lopez unless the latter withdrew her application;
   
3. In OCA IPI No. 11-2378-MTJ and OCA IPI No. 12-2456-MTJ, grave abuse of authority and abuse of court processes for issuing the show-cause order against her fellow Judges and court personnel; and gross misconduct amounting to violation of the Code of Judicial Conduct for not disqualifying herself in acting on the supposedly contumacious conduct of her fellow Judges and concerned court personnel in copying the records of her court;
   
4. In OCA IPI No. 12-2398-MTJ, refusal to perform official functions and oppression for refusing to sign the application for leave of absence despite the employee having complied with the requirements, and for doing so in retaliation for the employee's having joined as signatory of administrative complaint filed against her;
   
5. Gross ignorance of the law for: (a) allowing on-the-job trainees and designating an OIC who did not possess the minimum qualifications for the position and without approval from the Court (OCA IPI No. 11-2399-MTJ; (b) ordering the presentation of ex parte evidence before the OIC despite his not being a member of the Bar (OCA IPI No. 11-2378-MTJ); (c) allowing criminal proceedings to be conducted without the actual participation of the public prosecutor (A.M. No. MTJ-12-1815); and (d) authorizing the change of plea by the accused without the assistance of counsel; and
   
6. In A.M. No. MTJ-13-1821, conduct unbecoming of a judicial officer for sending inappropriate messages with sexual undertones to a fellow female Judge, and for using the official letterhead of her judicial office in summoning a lawyer to a conference.

In view of the totality of the serious infractions committed by Judge Yu, the OCA recommended her dismissal from the service with the following ratiocination, to wit:

In all the cases subject of this consolidated administrative matters, the totality of the infractions committed by Judge Yu, i.e.. Gross Ignorance of the Law, Insubordination and Refusal to Perform Official Functions, Gross Misconduct Amounting to Violation of the Code of Judicial Conduct, Grave Abuse of Authority, Oppression, and Conduct Unbecoming a Judge, underscores the fact that she is not fit to occupy the position of a judge. She has done more than enough harm to the reputation of the judiciary and the administration of justice, exacerbated by the oppression she has inflicted on her subordinates and her utter disrespect for her superiors.

In similar instances, the Supreme Court did not hesitate to impose upon erring judges the ultimate penalty of dismissal from service as they have indeed fallen short of the standards required of them as dispensers of justice. These same standards must be required of respondent Judge Yu, failing which she must be meted the penalty of dismissal from the service.^[263]

The recommendation of the OCA is well-taken.

Judge Yu unquestionably committed several gross and serious administrative offenses ranging from gross misconduct and gross ignorance^[264] to the lesser offense of conduct unbecoming of a judicial officer.^[265] Under Section 8, Rule 140 of the Rules of Court, either gross misconduct or gross ignorance of the law is punished by either: (1) dismissal from the service, forfeiture of benefits, and disqualification from reinstatement to any public office; or (2) suspension from office without salary and other benefits for more than three months but not exceeding six months; or (3) fine of more than P20,000.00 but not exceeding P40,000.00.^[266] Under Section 46B, Rule 10 of the Revised Rules on Administrative Cases in the Civil Service, either oppression or gross insubordination - also considered grave offenses - is punishable with suspension from office for a period ranging from six months and one day to one year for the first offense, and dismissal from the service for the second offense. Under Section 11, Rule 140 of the Rules of Court, conduct unbecoming of a judicial officer merits either: (1) fine of not less than P1,000.00 but not exceeding P10,000.00; or (2) censure; or (3) reprimand; or (4) admonition with warning.

The grossness and severity of her offenses taken together demonstrated Judge Yu's unfitness and incompetence to further discharge the office and duties of a Judge. Her arrogance and insubordination in challenging A.O. No. 19-2011, and her unyielding rejection of the appointments of court personnel constituted gross insubordination and gross misconduct, and warranted her immediate dismissal from the Judiciary. Her requiring her fellow Judges to submit to her authority by virtue of her show­cause order, whereby she revealed her utter disrespect towards and disdain for them, as well as her conduct unbecoming of a judicial officer aggravated her liability. The administration of justice cannot be entrusted to one like her who would readily ignore and disregard the laws and policies enacted by the Court to guarantee justice and fairness for all.

VIII
Disbarment Cannot Be Meted
Without Due Process
The foregoing findings may already warrant Judge Yu's disbarment.

A.M. No. 02-9-02-SC, dated September 17, 2002 and entitled Re: Automatic Conversion of Some Administrative Cases Against Justices of the Court of Appeals and the Sandiganbayan; Judges of Regular and Special Courts; and Court Officials Who are Lawyers as Disciplinary Proceedings Against Them Both as Such Officials and as Members of the Philippine Bar,^[267] relevantly states:

Some administrative cases against Justices of the Court of Appeals and the Sandiganbayan; judges of regular and special courts; and court officials who are lawyers are based on grounds which are likewise grounds for the disciplinary action of members of the Bar for violation of the Lawyer's Oath, the Code of Professional Responsibility, and the Canons of Professional Ethics, or for such other forms of breaches of conduct that have been traditionally recognized as grounds for the discipline of lawyers.

In any of the foregoing instances, the administrative case shall also be considered a disciplinary action against the respondent Justice, judge or court official concerned as a member of the Bar. The respondent may forthwith be required to comment on the complaint and show cause why he should not also be suspended, disbarred or otherwise disciplinarily sanctioned aa member of the Bar. Judgment in both respects may be incorporated in one decision or resolution.

Under Section 27, Rule 138 of the Rules of Court, an attorney may be disbarred on the ground of gross misconduct and willful disobedience of any lawful order of a superior court. Given her wanton defiance of the Court's own directives, her open disrespect towards her fellow judges, her blatant abuse of the powers appurtenant to her judicial office, and her penchant for threatening the defenseless with legal actions to make them submit to her will, we should also be imposing the penalty of disbarment. The object of disbarment is not so much to punish the attorney herself as it is to safeguard the administration of justice, the courts and the public from the misconduct of officers of the court. Also, disbarment seeks to remove from the Law Profession attorneys who have disregarded their I. awyer's Oath and thereby proved themselves unfit to continue discharging the trust and respect given to them as members of the Bar.^[268]

The administrative charges against respondent Judge Yu based on grounds that were also grounds for disciplinary actions against members of the Bar could easily be treated as justifiable disciplinary initiatives against her as a member of the Bar. This treatment is explained by the fact that her membership in the Bar was an integral aspect of her qualification for judgeship. Also, her moral and actual unfitness to remain as a Judge, as found in these cases, reflected her indelible unfitness to remain as a member of the Bar. At the very least, a Judge like her who disobeyed the basic rules of judicial conduct should not remain as a member of the Bar because she had thereby also violated her Lawyer's Oath.^[269]

Indeed, respondent Judge Yu's violation of the fundamental tenets of judicial conduct embodied in the New Code of Judicial Conduct for the Philippine Judiciary would constitute a breach of the following canons of the Code of Professional Responsibility, to wit:

CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND FOR LEGAL PROCESSES.

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

CANON 6 THESE CANONS SHALL APPLY TO LAWYERS IN GOVERNMENT SERVICE IN THE DISCHARGE OF THEIR OFFICIAL TASKS.

Rule 6.02 - A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties.

CANON 11 - A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS.

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

The Court does not take lightly the ramifications of Judge Yu's misbehavior and misconduct as a judicial officer. By penalizing her with the supreme penalty of dismissal from the service, she should not anymore be allowed to remain a member of the Law Profession.

However, this rule of fusing the dismissal of a Judge with disbarment does not in any way dispense with or set aside the respondent's right to due process. As such, her disbarment as an offshoot of A.M. No. 02-9-02-SC without requiring her to comment on the disbarment would be violative of her right to due process. To accord due process to her, therefore, she should first be afforded the opportunity to defend her professional standing as a lawyer before the Court would determine whether or not to disbar her.

IX
Final Word
The Court will not hesitate to impose the extreme penalty on any judicial officer who has fallen short of the responsibilities of her worthy office. Any conduct that violates the norms of public accountability and diminishes the faith of the people in the judicial system must be condemned.^[270] No act or omission by a Judge or Justice that falls short of the exacting norms of holding the public office of dispensing justice can be condoned, for the most important thing for every Judge or Justice is to preserve the people's faith and confidence in the Judiciary as well as in the individuals who dispense justice. The image of the Judiciary must remain unsullied by the misconduct of its officials. The Court will not shirk from its duty of removing from the Bench any Judge or Justice who has stained the integrity and dignity of the Judiciary.^[271] This is what must be done now in these consolidated cases.

WHEREFORE, the Court FINDS and PRONOUNCES respondent JUDGE ELIZA B. YU GUILTY of GROSS INSUBORDINATION; GROSS IGNORANCE OF THE LAW; GROSS MISCONDUCT; GRAVE ABUSE OF AUTHORITY; OPPRESSION; and CONDUCT UNBECOMING OF A JUDICIAL OFFICIAL; and, ACCORDINGLY, DISMISSES her from the service EFFECTIVE IMMEDIATELY, with FORFEITURE OF ALL HER BENEFITS, except accrued leave credits, and further DISQUALIFIES her from.reinstatement or appointment to any public office or employment, including to one in any government-owned or government-controlled corporations.

Respondent JUDGE ELIZA B. YU is directed to show cause in writing within ten (10) days from notice why she should not be disbarred for violation of the Lawyer's Oath, the Code of Professional Responsibility, and the Canons of Professional Ethics as outlined herein.

Let a copy of this decision be furnished to the Office of the Court Administrator for its information and guidance.

SO ORDERED.

Sereno, C. J., Carpio, Velasco, Jr., Leonardo-De Castro, Bersamin, Del Castillo, Perez, Mendoza, Reyes, Jardeleza, and Caguioa, JJ., concur.
Brion, J., see Concurring & Dissenting Opinion.
Peralta, and Perlas-Bernabe, JJ., on official leave.
Leonen, J., I join Justice Brion.

---

Sirs/Mesdames:

Please take notice that on November 22, 2016 a Decision/Resolution, copy attached herewith, was rendered by the Supreme Court in the above-entitled administrative matters, the original of which was received by this Office on December 16, 2016 at 1:10 p.m.

	Very truly yours,
	(SGD)
	FELIPA G. BORLONGAN-ANAMA
	Clerk of Court

---

^[1] Rollo (A.M. No. MTJ-12-1813), p. 157.

^[2] Id. at 183.

^[3] Id. at 39-40.

^[4] Id. at 38.

^[5] Rollo (OCA IPI No. 11-2378-MTJ), p. 18.

^[6] Rollo (A.M. No. MTJ-12-1318), p. 12.

^[7] Id. at 33.

^[8] Id. at 30-32.

^[9] Id. at 20.

^[10] Id. at 19.

^[11] Id. at 13-17.

^[12] Id. at 28.

^[13] Id. at 28-29.

^[14] Id. at 18.

^[15] Id. at 35.

^[16] Id. at 1-11.

^[17] Id. at 41.

^[18] Id. at 43.

^[19] Id. at 43-44.

^[20] Id. at 45;98-105.

^[21] Id. at 98-110; among her submissions were contentions on the supremacy of the Constitution; marketplace of ideas; privileged communications; totality and spirit of the letter; and the weight of evidence and burden of proof.

^[22] Id. at 44.

^[23] Id. at 47-50; she argued that the drafters of A.O. No. 19-2011 should have considered the material change brought about by Section 12 of the 1991 Revised Rules on Summary Procedure, and the reverse order of arraignment and submission of affidavits under the 1983 Rule on Summary Procedure in Special Cases.(see Comment dated July 16, 2012).

^[24] Id. at 110.

^[25] Id. at 59-61.

^[26] Id. at 108.

^[27] Id. at 111-113.

^[28] Id. at 153; 158.

^[29] Id. at 154; 158.

^[30] Id.

^[31] Id. at 736.

^[32] Rollo (A.M. No. MTJ-13-1836), p. 52.

^[33] Id. at 54.

^[34] Id. at 55-58.

^[35] Id. at 53; 59.

^[36] Id. at 84-90.

^[37] Id. at 61-62.

^[38] Id. at 69.

^[39] Rollo (A.M. No. MTJ-12-1815), p. 4.

^[40] Rollo (A.M. No. MTJ-13-1836), p. 70.

^[41] Rollo (A.M. No. MTJ-12-1815), pp. 5-6.

^[42] Rollo (A.M. No. MTJ-13-1836), pp. 71-72.

^[43] Id. at 91.

^[44] Id. at 95; on May 2, 2011, the OCA-SPBLC met and resolved to wait for the explanation of Ms. Tejero-Lopez regarding her withdrawal; ACA Bahia volunteered to talk to Ms. Tejero-Lopez; following their meeting on May 9, 2011, ACA Bahia reported that Ms. Tejero-Lopez had only been prevailed upon by Judge Yu to withdraw her application by threatening to file the necessary actions to revoke her appointment or to remove her from the service.

^[45] Rollo (A.M. No. MTJ-12-1815), p. 3.

^[46] Id. at 1-2.

^[47] Rollo (A.M. No. MTJ-13-1836), p. 103.

^[48] Rollo (A.M. MTJ-12-1815), p. 8.

^[49] Rollo (A.M. No. MTJ-13-1836), pp. 115-116.

^[50] Rollo (A.M. No. MTJ-13-1836), pp. 239-244.

^[51] Rollo (A.M. No. 11-2378-MTJ), p. 159.

^[52] Rollo (A.M. No. MTJ-12-1815), pp. 1-2.

^[53] Rollo (A.M. No. MTJ-13-1836), pp. 414-415.

^[54] Id. at 410-412.

^[55] Id. at 408-409.

^[56] Id. at 25.

^[57] Id. at 19-20.

^[58] Id. at 18.

^[59] Id. at 1-17.

^[60] Id. at 227-228.

^[61] Id. at 229-234.

^[62] Id. at 229.

^[63] Id. at 231.

^[64] Id. at 233-234.

^[65] Rollo (OCA IPI No. 11-2399-MTJ), pp. 1-9.

^[66] Rollo (OCA IPI No. 11-2378-MTJ), pp. 1-17.

^[67] Id. at 127-151.

^[68] Article 231. Open disobedience. Any judicial or executive officer who shall openly refuse to execute the judgment, decision or order of any superior authority made within the scope of the jurisdiction of the latter and issued with all the legal formalities, shall suffer the penalties of arresto mayor in its medium period to prision correccional in its minimum period, temporary special disqualification in its maximum period and a fine not exceeding 1,000 pesos.

^[69] Rollo (A.M. No. 12-1-09-MeTC), pp. 48-49.

^[70] Rollo (OCA IPI No. 11-2378-MTJ), p. 3.

^[71] Rollo (OCA IPI No. 11-2399-MTJ), p. 4.

^[72] Id.

^[73] Rollo (OCA IPI No. 11-2399-MTJ), p. 2.

^[74] Rollo (OCA IPI No. 11-2378-MTJ), p. 135-136.

^[75] Rollo (OCA IPI No. 11-2399-MTJ), pp. 7-8.

^[76] Rollo (A.M. No. 12-109-MeTC), pp. 1-2.

^[77] Id. at 128; see letter dated May 5, 2011 addressed to ACA Thelma C. Bahia.

^[78] Id. at 126.

^[79] Rollo (A.M. No. 11-2378-MTJ), pp. 183-184.

^[80] Id.

^[81] Id. at 52-67.

^[82] Id. at 60.

^[83] Id. at 9.

^[84] Id. at 10; also rollo (OCA IPI No. 11-2399-MTJ), p. 7.

^[85] Rollo (A.M. No. 11-2399-MTJ), pp. 2-3.

^[86] Rollo (A.M. No. 11-2378-MTJ), pp. 38-51.

^[87] Rollo (A.M. No. 11-2399-MTJ), p. 15.

^[88] Id. at 25.

^[89] Rollo (OCA IPI No. 11-2399-MTJ), pp. 16-24; the complainants in A.M. No. MTJ-12-1815 alleged that Judge Yu also allowed the prosecution of the following cases without the presence of the public prosecutor, viz.: Criminal Case No. M-PSY-11-14002-CR (People v. Chudee Morales Dulay); Criminal Case No. M-PSY-11-13956 (People v. Regielyn Hidalgo); Criminal Case No. M-PSY-11-13986-CR (People v. Jennifer Alcantara); Criminal Case No. M-PSY-11-13991-CR (People v. Cris Gonzaga); Criminal Case No. M-PSY-11-13446-CR (People v. Sps. Joselito Lacsamana, et al.); Criminal Case No. M-PSY-11-13510-CR (People v. Vicente Guillermo); Criminal Case Nos. M-PSY-10-12631-CR and M­ PSY-10-12632 (People v. Lorna Boto); Criminal Case Nos. M-PSY-10-12228-CR and M-PSY-10-12229-CR (People v. Evangelina Arias); Criminal Case No. M-PSY-10-11902-CR (People v. Anecito Basada).

^[90] Rollo (A.M. No. MTJ-11-2378), pp. 6, 33.

^[91] Id. at 131-135.

^[92] Rollo (OCA IPI No. 11-2399-MTJ), pp. 3-4.

^[93] Id. at 42-56; (A.M. No. 11-2378-MTJ), pp. 73-89; (A.M. No. 12-1-09-MeTC), pp. 437-453.

^[94] Rollo (A.M. No. 11-2378-MTJ), p. 74; (A.M. No. 12-1-09-MeTC), p. 438.

^[95] Rollo (A.M. No. 11-2378-MTJ), p. 437.

^[96] Rollo (A.M. No. 11-2378-MTJ), p. 80.

^[97] Id. at 73; (A.M. No. 12-1-09-MeTC), p. 437.

^[98] Ms. Angelica Rosali, one of the OJTs, submitted an affidavit denying the charges against the respondent. (see Sinumpaang Salaysay [Rollo, OCA IPI No. 11-2399-MTJ, pp. 57-58]); the other OJTs, namely, Ms. Johaira O. Mababaya, Ms. Catherine L. Sarate and Mr. Eduardo M. Pangilinan III, executed a joint affidavit (Id. at p. 76) stating that they had only acted as assistant to court stenographer Mr. Froilan Robert L. Tomas during their court observation.

^[99] Rollo (OCA IPI No. 11-2399-MTJ), p. 43; see also letter dated September 5, 2011 (rollo [OCA IPI No. 11-2399-MTJ], pp. 145-B-149).

^[100] Id. at 44.

^[101] Id. at 45-46.

^[102] Id. at 47-49.

^[103] Id. at 49.

^[104] Rollo (OCA IPI No. 11-2378-MTJ), p. 86; (A.M. No. 12-1-09-MeTC), p. 450. In her letter dated August 7, 2011 addressed to Court Administrator Marquez, ACA Bahia and Atty. Geronga, the respondent cited People v. Malinao(G.R. No. L-63735, April 5, 1990, 184 SCRA 148) where the Court held that the absence of the public prosecutor at the trial was not prejudicial to the accused because the witness had only testified on the autopsy report without any objection being interposed by the appellant's counsel, and the Defense waived the public prosecutor's presence (Rollo [OCA IPI No. 11-2378-MTJ], pp. 235-236).

^[105] Rollo (OCA IPI No. 11-2399-MTJ), p. 50.

^[106] Id.

^[107] Rollo (OCA IPI No. 11-2378-MTJ), p. 248.

^[108] Id. at 80-81.

^[109] Rollo (OCA IPI No. 11-2399-MTJ), p. 47; see Affidavit of Mr. Ferdinand Santos, at 74-75.

^[110] Rollo (OCA IPI No. 11-2378-MTJ), p. 83; (A.M. No. 12-1-09-MeTC), p. 447.

^[111] Rollo (OCA IPI No. 11-2399-MTJ), p. 49.

^[112] Id. at 50.

^[113] Id. at 54-56.

^[114] Rollo (OCA IPI No. 11-2378-MTJ), pp. 85-86; (A.M. No. 12-1-09-MeTC), pp. 449-450; (OCA IPI No. 11-2399-MTJ), pp. 51-53.

^[115] Rollo OCA IPI No. 11-2378-MTJ), pp. 86-87; (A.M. No. 12-1-09-MeTC), pp. 450-451.

^[116] Id. at 251.

^[117] Id. at 253.

^[118] Rollo (OCA IPI No. 12-2456-MTJ), p. 1.

^[119] Rollo (OCA IPI No. 12-2456-MTJ), p. 2.

^[120] Rollo (A.M. No. 12-1-09-MeTC), p. 410.

^[121] Rollo (OCA IPI No. 12-2456-MTJ), p. 4.

^[122] Id. at 14-16.

^[123] Id.

^[124] Rollo (OCA IPI No. 11-2398-MTJ), pp. 1-5.

^[125] Id. at 1.

^[126] Id.

^[127] Id. at 2.

^[128] Id.

^[129] Id. at 26.

^[130] Id. at 25.

^[131] Id. at 2.

^[132] Id. at 6-7.

^[133] Id. at 17.

^[134] Id. at 28.

^[135] Id. at 30.

^[136] Id. at 43-47.

^[137] Id. at 45.

^[138] Id. at 46.

^[139] Rollo (A.M. No. MTJ-13-1821), Vol. I, pp. 4-6.

^[140] Rollo (A.M. No. MTJ-13-1821), Vol. II, TSN dated August 29, 2013, pp. 663-666.

^[141] Rollo (A.M. No. MTJ-13-1821), Vol. I, p. 4

^[142] Rollo (A.M. No. MTJ-13-1821), Vol. I, Annex "A" of Letter of Mr. Alexander M. Arevalo, Acting Chief of the SC Management Information Systems Office (MISO) dated May 27, 2013, p. 367.

^[143] Rollo (A.M. No. MTJ-13-1821), Vol. I, Annex "O" of Letter of Mr. Arevalo dated May 27, 2013, p. 533.

^[144] Id.

^[145] Judge San Gaspar-Gito stated that the "cute little devil" being referred to was a photo of her son in a red devil suit, while she was the one alluded to as red, hot and horny as she was wearing a red blouse in a family photo (TSN dated August 29, 2013, rollo [A.M. No. MTJ-13-1821], Vol. II, pp. 690-691).

^[146] Rollo (A.M. No. MTJ-13-1821), Vol. I; Annex "D" of Letter of Mr. Arevalo dated May 27, 2013, p. 534.

^[147] Id. at 535-537.

^[148] Rollo (A.M. No. MTJ-13-1821), Vol. I , Annex "B" of Letter of Mr. Arevalo dated May 27, 2013, p. 443.

^[149] Id. at 446-447.

^[150] Id. at 448.

^[151] Id. at 449.

^[152] Id. at 450.

^[151] Rollo (A.M. No. MTJ-13-1821), Vol. I, Annex "A" of Letter of Mr. Arevalo dated May 27, 2013, p. 451.

^[154] Rollo (A.M. No. MTJ-13-1821), VoL I, Annex "B" of Letter of Mr. Arevalo dated May 27, 2013, p. 461.

^[155] Rollo (A.M. No. MTJ-13-1821), Vol. I, Annex "A" ofLetter of Mr. Arevalo dated May 27, 2013, p. 389.

^[156] Rollo (A.M. No. MTJ-13-1821) Vol. I, Annex "B" of Letter of Mr. Arevalo dated May 27, 2013, p. 463.

^[157] Rollo (A.M. No. MTJ-13-1821) Vol. I, Annex "D" of Letter of Mr. Arevalo dated May 27, 2013, pp. 503-504.

^[158] Id. at 468-469.

^[159] The March 19, 2010 email message of Judge San Gaspar-Gito reads:

Re: hello there ...                                                                         Thursday, March 18, 2010 7:46 PM
From: "emily san gaspar"

To: "Bambi Yu" 

Elisa, a cousin of mine informed me that someone has created an account in my name, changing the same to "Rudela San Gaspar". When he traced the link re: the captured photo of my son and the other photos, the same was traceable from you. I looked into it and I am sure you are indeed the culprit. The details you originally placed in the Profile were matters that have been the subject of our earlier discussions. Even the photos you attached were the ones you captured from my previous Account, as what you have e­mailed me once.

I consider you as a friend but I cannot tolerate such childish act. We are both judges and, on many occasions you have shown your idiosyncratic tendencies. I tried to be civil with you but what you have done is really the height of indecency. Faking a profile or misrepresenting someone in the Internet to enter into somebody else's private domain is conduct unbecoming of a judge. I compiled all the e-mails you sent to me through my Face book Account. Those reflect how disturbed and unstable you are. If you do not stop on pestering me and my family I will forward all those e-mails to the Supreme Court in the form of a complaint and, to your parents and siblings as well, so that you may be taught a lesson on decency, civility, morality and good conduct. (Rollo, [A.M. No. MTJ-13-1821] Annex "A," Letter of Mr. Alexander M. Arevalo, Acting Chief of the SC Management Information Systems Office (MISO) dated May 27, 2013, p. 415).

^[160] Rollo (A.M. No. MTJ-13-1821), Vol. I, Annex "A" of Letter of Mr. Arevalo dated May 27, 2013, p. 430.

^[161] Id. at 431.

^[162] Rollo (A.M. No. MTJ-13-1821), Vol. I, pp. 102-103; see also Affidavit of Juliet Tabanao-Galicnao, Rollo (A.M. No. MTJ-13-1821), Vol. I, pp. 99-101.

^[163] Id. at 4-6.

^[164] Id. at 27.

^[165] Id. at 28-32.

^[166] Id.

^[167] Id. at 33-34.

^[168] Section 32. Obligation of Confidentiality. - Except for the purposes authorized under this Act, any person who obtained access to any electronic key, electronic data message or electronic document, book, register, correspondence, information, or other material pursuant to any powers conferred under this Act, shall not convey to or share the same with any other person.

^[169] Rollo (A.M. No. MTJ-13-1821), Vol. II, p. 242.

^[170] Rollo (A.M. No. MTJ-13-1821), Vol. I, pp. 52-97.

^[171] Id. at 256.

^[172] Id. at 353.

^[173] Id. at 272-274.

^[174] Id. at 358-538.

^[175] Id. at 362-538.

^[176] Rollo (A.M. No. MTJ-13-1821), Vol. II, pp. 124-202.

^[177] Id. at 127.

^[178] Id. at 128.

^[179] Id. at 138.

^[180] Id. at 129.

^[181] Id. at 129-130.

^[182] Id. at 130.

^[183] Id. at 197-198.

^[184] Id. at 203-212.

^[185] Id. at 490-491.

^[186] Id. at 135.

^[187] Rollo (A.M. No. MTJ-13-1821), Vol. I, pp. 600-601.

^[188] Rollo (A.M. No. MTJ-13-1821), Vol. II, p. 490.

^[189] Rollo (A.M. No. MTJ-13-1821), Vol. I, pp. 600-611.

^[190] Rollo (A.M. No. MTJ-12-1813), pp. 695-696.

^[191] Court Administrator Marquez did not take part in the evaluation, report and recommendation.

^[192] Rollo (A.M. No. MTJ-12-1813), pp. 697-755.

^[193] Id. at 754-755.

^[194] Id. at 729.

^[195] Id. at 730.

^[196] Id. at 730, 739-741, 752.

^[197] Id. at 731-734.

^[198] Id. at 735-736.

^[199] Id. at 749-751.

^[200] Section 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof.

^[201] Fernandez v. Hamoy, A.M. No. RTJ-04-1821, August 12, 2004, 436 SCRA 186, 193.

^[202] Id. at 213.

^[203] See Office of the Court Administrator v. Indar, A.M. No. RTJ-11-2287, January 22, 2014, 714 SCRA 381, 391-393; Falsification of Daily Time Records of Ma. Emcisa A. Benedictos, Administrative Officer I, Regional Trial Court, Malolos City, Bulacan, A.M. No. P-10-2784, October 19, 2011 659 SCRA 403, 409.

^[204] Id.

^[205] Office of the Court Administrator v. Amor, A.M. No. RTJ-08-2140, October 7, 2014, 737 SCRA 509, 518.

^[206] A.M. No. MTJ-03-1504, August 26, 2003, 409 SCRA 606, 612.

^[207] Marigomen v. Labar, A.M. No. CA-15-33-P, August 24, 2015; Dalmacio-Joaquin v. Dela Cruz, A.M. No. P-07-2321, April 24, 2009, 586 SCRA 344, 349.

^[208] Rule 3.01, Canon 3 of the Code of Judicial Conduct.

^[209] Gacad v. Clapis, Jr., A.M. No. RTJ-10-2257, July 17, 2012, 676 SCRA 534, 544.

^[210] Zamudio v. Peñas, Jr., A.M. No. RTJ-95-1332, February 24, 1998, 286 SCRA 367, 377.

^[211] See Circular No.30-91, September 30, 1991.

^[212] A.M. No. RTJ-06-1974, July 26, 2007, 528 SCRA 212.

^[213] Id. at 222-223.

^[214] Paragraph 1.4.10, Chapter IX, The 2002 Revised Manual for Clerks of Court.

^[215] Paragraph 1.4.9, Chapter IX, The 2002 Revised Manual for Clerks of Court.

^[216] Paragraph 1.4.14, Chapter IX, The 2002 Revised Manual for Clerks of Court.

^[217] CSC Memorandum Circular No. 19, series of 1999, was the applicable rule when Judge Yu filed the administrative complaint against Ms. Lagman.

^[218] Section 42. Effects of the Pendency of an Administrative Case. - Pendency of an administrative case shall not disqualify respondent from promotion and other personnel actions or from claiming maternity/paternity benefits.

For this purpose, a pending administrative case shall be construed as such when the disciplining authority has issued a formal charge or a notice of charge/s to the respondent.

^[219] Memoranda of Judge Eliza B. Yu Issued to Legal Researcher Mariejoy P. Lagman and to Court Stenographer Soledad J. Bassig, All of Metropolitan Trial Court, Branch 47, Pasay City, A.M. No. P-12-3033, August 15, 2012, 678 SCRA 386.

^[220] Article 1.6.1 Grounds of Protest -

A qualified next-in-rank employee may file a protest against the appointment issued for the following reasons:

1.6.1.1 Non-compliance with the selection process;

1.6.1.2 Discrimination on account of gender, civil status, disability, pregnancy, religion, ethnicity or political affiliation;

1.6.1.3 Disqualification of the appointee to a career position for reason of lack of confidence of the recommending authority; and

1.6.1.4 Other violations of the provisions of the MSP-LC.

^[221] Rollo (A.M. No. MTJ-12-1815), p. 8.

^[222] Dialo, Jr. v. Macias, A.M. No. RTJ-04-1859, July 13, 2004, 434 SCRA 186, 194.

^[223] Rollo (A.M. No. MTJ-12-1831), p. 736.

^[224] G.R. No. 115908-09, March 29, 1995, 243 SCRA 64.

^[225] G.R. No. 79690-79707, October 7, 1988, 166 SCRA 316.

^[226] 61 Phil. 724 (1935).

^[227] Citing Section 53 of Civil Service Commission Memorandum Circular No. 41, series of 1998.

^[228] Citing Civil Service Commission Memorandum Circular No. 14, series of 1999.

^[229] Rollo (A.M. No. 11-2398-MTJ), p. 21.

^[230] Id. at 22.

^[231] Id. at 23.

^[232] A.M. No. 2004-41-SC, January 13, 2005, 448 SCRA 81.

^[233] 2.1.2, In case of claim of ill health, heads of department of agencies are encouraged to verity the validity of such claim and, if not satisfied with the reason given, should disapprove the application for sick leave. x x x.

^[234] Dialo, Jr. v. Macias, A.M. No. RTJ-04-1859, July 13, 2004, 434 SCRA 186, 194.

^[235] Josefina M. Ongcuangco Trading Corporation v. Pinlac, A.M. No. RTJ-14-2402, April 15, 2015, 755 SCRA 478, 486-487; Fernandez v. Verzola, A.M. No. CA-04-40, August 13, 2004, 436 SCRA 369, 373.

^[236] Rollo (OCA IPI No. 11-2399-MTJ), p. 10.

^[237] Rollo (OCA IPI No. 11-2399-MTJ), pp. 57-58.

^[238] A first level position includes clerical trades, crafts and custodial service positions which involve non­professional or sub-professional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies. (Section 8, Chapter 2, Title I, Book V, Executive Order No. 292)

^[239] The 2002 Revised Manual for Clerks of Court (Vol. I), p. 618.

^[240] Id. at 615.

^[241] Brehm v. Republic, No. L-18566, September 30, 1963, 9 SCRA 172, 176.

^[242] Sy v. Esponilla, A.M. No. P-06-2261, October 30, 2006, 506 SCRA 14, 20.

^[243] Umali-Paco v. Quilala, A.M. No. RTJ-02-1699, October 15, 2003, 413 SCRA 364, 372.

^[244] Concern[ed] Lawyers of Bulacan v. Villalon-Pornillos, A.M. No. RTJ-09-2183, July 7, 2009, 592 SCRA 36, 58.

^[245] Rollo (A.M. No. 11-2399-MTJ), p. 146.

^[246] Pinote v. Ayco, A.M. No. RTJ-05-1944, December 13, 2005, 477 SCRA 409, 412.

^[247] Ricarze v. Court of Appeals, G.R. No. 160451, February 9, 2007, 515 SCRA 302, 314.

^[248] G.R. No. 95370, March 10, 2991, 207 SCRA 144, 152.

^[249] A.M. No. RTJ-05-1944, December 13, 2005, 477 SCRA 409.

^[250] A.M. No. MTJ-99-1231, March 17, 2004, 425 SCRA 588.

^[251] Id. at 599-600.

^[252] Id.

^[253] Ejercito v. Sandiganbayan (Special Division), G.R. Nos. 157294-95, November 30, 2006, 509 SCRA 190, 218.

^[254] Anonymous Letter-Complaint Against Atty. Miguel Morales, Clerk of Court Metropolitan Trial Court of Manila, A.M. No. P-08-2519, November 19, 2008, 571 SCRA 361.

^[255] People v. Cogaed, G.R. No. 200334, July 30, 2014, 731 SCRA 427, 454.

^[256] Article 723, Civil Code.

^[257] Rollo (A.M. No. 13-1821), Vol. I, pp. 356-357.

^[258] Id. at 360.

^[259] Id. at 450.

^[260] Rollo (A.M. No. MTJ-12-1813), pp. 750-751.

^[261] A.M. No. MTJ-08-1712, August 20, 2008, 562 SCRA 365.

^[262] Id. at 370-371.

^[263] Rollo (A.M. No. MTJ-12-1813), p. 754.

^[264] Section 8, Rule 140, Rules of Court.

^[265] Section 10, Rule 140, Rules of Court.

^[266] Section 11, Rule 140, Rules of Court.

^[267] Effective October 1, 2002.

^[268] Anacta v. Resurreccion, A.C. No. 9074, August 14, 2012, 678 SCRA 352, citing Berbano v. Barcelona, A.C. No. 6084, September 3, 2003, 410 SCRA 258, 264.

^[269] Samson v. Caballero, A.M. No. RTJ-08-2138, August 5, 2009, 595 SCRA 423, 432-433.

^[270] Dagudag v. Paderanga, A.M. No. RTJ-06-2017, June 19, 2008, 555 SCRA 217, 237.

^[271] Edaño v. Asdala, A.M. No. RTJ-06-1974, July 26, 2007, 528 SCRA 212, 226.

---

CONCURRING AND DISSENTING OPINION
BRION, J.:

I CONCUR with the ponencia's findings and conclusions. I find, as the ponencia finds, that Judge Eliza B. Yu (Judge Yu) is guilty of gross insubordination, gross ignorance of the law, gross misconduct, grave abuse of authority, oppression, and conduct unbecoming of a judicial official; and should therefore be dismissed from the serviceeffective immediately, with forfeiture of all benefits and disqualification from reinstatement or appointment to any public office or employment, and disqualified from reinstatement or appointment to any public office or employment.

I DISAGREE, however, with the ponencia's conclusion that, notwithstanding the severity and grossness of the various administrative offenses committed by Judge Yu that warrants her disbarment, the Court cannot, in these proceedings, order her disbarment. It reasons that the Court must first allow her to defend her professional standing as a lawyer before it proceeds to mete out the ultimate sanction of disbarment.

I submit that the Court can properly disbar Judge Yu in these same proceedings. The proceedings the OCA and the Court undertook in the various administrative cases filed against Judge Yu, as borne by the records, sufficiently supports the conclusion that Judge Yu had been accorded more than ample opportunity to defend her' professional standing as a lawyer justifying her disbarment.

More than anything, her ignorance, arrogance, recalcitrant attitude, uncharacteristic insubordination, megalomania, and lack of humility demonstrate her incompetence and unfitness to discharge not only the office and duties of judge; more than anything, they reveal an utter incompetence and unfitness to continue discharging the trust and respect invested her as a member of the Bar.

SUPPORTING REASONS FOR MY DISSENT
I. The cases and proceedings against Judge Yu.

A. The administrative complaints.

Based on the records, the following are the administrative cases filed against Judge Yu:

Complainant	Docket Number and Date	Charges
Gito, Emily L. San Gaspar (MeTC, Br. 20 Judge)	AM No. MTJ-13-1821 (formerly OCA IPI No. 10-2308-MTJ) (September 2, 2010)	Conduct unbecoming of a Judge. - Stemmed from the July 12, 2010 Letter-Complaint of Judge Emily San Gaspar­-Gito, Branch 20, MeTC, Manila concerning the former's Facebook and Yahoo messages with sexual undertones.[1]
Luchavez, Gabina Punzalan	OCA IPI No. 10-2335-MTJ (December 21, 2010)	Conduct unbecoming of a Judge, gross ignorance of the law, and violation of RA No. 3019.[2]
Colasito, Bibiano G. (MeTC Judge), et al.	OCA IPI No. 11-2378-MTJ (June 2, 2011)	Gross insubordination, refusal to perform official duty, gross ignorance of the law/procedure, grave misconduct, violation of SC circulars, violation of the Code of Professional Responsibility, violation of the Oath, and oppressive conduct. - In Re: refusal to comply with AO No. 19-2011 (Night Courts); her request for an audit of the Clerk of Court of Pasay City concerning the remittance of the fees in ex partepresentation of evidence; her order for the ex parte presentation of evidence before the OIC who is not a lawyer; her act of authorizing the prosecution of a criminal case without the presence of the public prosecutor; and her offensive remarks against Court Administrator Midas Marquez and the judiciary. (The case stemmed from the Affidavit-Complaint signed by four (4) Pasay City MeTC judges[3] and seventy (70) court personnel[4] of Pasay City Courts).
Labid, Josefina G.	OCA IPI No. 11-2398-MTJ[5] (August 8, 2011)	Oppression, gross ignorance of the law, and conduct unbecoming of a judge. - In Re: refusal to approve Noel Labid's application for sick leave. (Related with OCA IPI No. 11-2378-MTJ)
Abad, Amor V. (Court Interpreter), et. al.	OCA IPI No. 11-2399-MTJ[6] (August 8, 2011)	Grave misconduct, oppression, gross ignorance of the law, and violation of the Code of Judicial Conduct. - Directing three (3) non-court employees (allegedly OJTs) to correct the draft decisions in ex parte cases and other court orders and resolutions; ordering the complainant-court personnel of Branch 47, Pasay City, to advertise and offer for sale the books she wrote; humiliating her staff in open court; making unsavory remarks against CA Marquez; directing the ex parte presentation of evidence before the court's officer-in-charge who is not a member of the Bar; authorizing the arraignment of the accused without the presence of the public prosecutor; and in refusing to approve the sick leave application of Noel Labid, among others.[7] (Related with OCA IPI No. 11-2378-MTJ)
Lopez, Leilani A. Tejero (Court Personnel)	AM No. MTJ-12-1815 (formerly OCA IPI No. 11-2401-MTJ) (August 8, 2011 and August 23, 2012 respectively)	Refusal to obey court order. - Stemmed from the "Sworn Statement" dated June 16, 2011 of Leilani A. Tejero Lopez, Clerk III, Branch 47, Pasay City., claiming that Judge Yu questioned the selection process of the OCA-SPB concerning her appointment as Branch Clerk of Court.[8]
Chun Suy Tay c/o Charlie V. Tumaru	OCA IPI No. 11-2411-MTJ (September 8, 2011)	Knowingly rendering unjust resolution and conduct prejudicial to the best interest of the service.[9]
Colsaito, Bibiano, et al. (MeTC Pasay)	OCA IPI No. 12- 2456-MTJ (January 13, 2012)	Grave abuse of authority and oppression. - Stemmed from the December 1, 2011 Order of Judge Yu in Criminal Case No. M. PSY-09-08592-CR, entitled "People of the Philippines v. Ramil Fuentes, et al. " directing the complainants in OCA IPI No. 11-2378-MTJ to show cause why they should not be held liable for contempt for the alleged surreptitious taking of a copy of TSN dated March 22, 2011 in the said case.[10]
OCA	AM No. MTJ-12-1813 (formerly No. AM No. 12-5-42-MeTC) (June 26, 2012)	RE: Incidents related to AO No. 19-2011 (the establishment of Night Courts) and the adverse actuations of Judge Eliza B. Yu anent the said Court issuance. - Stemmed from the July 21, 2011 Letter of the judges of MeTC, Pasay City, requesting for the immediate suspension or detail to another station of Judge Yu pending investigation of all the administrative cases filed against the latter, namely: OCA IPI Nos. 11-2378-MTJ, 12-2456-MTJ, 2398-MTJ, 11-2399-MTJ, 10-2308-MTJ, and 12-1815B.[11]
OCA	AM No. 12-1-09-MeTC	RE: Letter dated 7-21-11 of Exec. Judge Bibiano G. Colastino and 3 other judges of MeTC Pasay City, for the suspension or detail to another station of Judge Eliza B. Yu, Branch 47 of the same court.
OCA	AM No. MTJ-13-1836 (formerly AM No. 11-11-115-MeTC)	Misconduct and insubordination. - Stemmed from the May 2, 2011 Letter of Judge Yu to CA Marquez requesting for an investigation on the (1) alleged delayed appointment of the Branch Clerk of Court at MeTC, Branch 47, Pasay City, and (2) appointment of Ms. Mariejoy P. Lagman as Clerk III, RTC, Br. 108, Pasay City, despite the pending administrative case against the latter involving grave offenses.[12]

B. pleadings, letters, etc. filed before or sent to the OCA and/or Court and the Court's resolutions, orders, etc. in relation with these cases.

On the other, the following are the Motions, Memoranda, Manifestations, Letters, and other papers filed before and/or sent to the Court by Judge Yu vis-a-vis the Resolutions, Orders, and other Notices issued by the Court in relation with these proceedings.

Date	Court Issuances, etc.	Date	Pleadings, etc.
		June 29, 2011	Comment in OCA IPI No. 11-2378-MTJ.[13]
		September 1, 2011	Comment to AM No. MTJ-12-1815.[14]
		September 2, 2011	Comment in OCA IPI No. 11-2399-MTJ.[15]
		January 26, 2012	Comment to OCA IPI No. 11-2398-MTJ, and adopts her Comment in OCA IPI Nos. 11-2378-MTJ, 11-2399-MTJ, 11-2401-MTJ, and 11-3728.
February 1, 2012	Resolution (of the Court's First Division) in AM No. 12-1-09-MeTC placing Judge Yu under preventive suspension.	February 1, 2012	Motion to Declare Null and Void the February 1, 2012 Resolution.
February 6, 2012	Resolution[16] noting February 2, 2012 MR.	February 2, 2012	MR to the Court's February 1, 2012 Resolution placing Judge Yu under preventive suspension.
		February 3, 2012	Comment to OCA IPI No. 12-2456-MTJ.[17]
		March 1, 2012	Omnibus Motion to Lift Preventive Suspension, Motion for Clarification of Resolution dated February 1, 2012, Motion to Obtain Copy of Memorandum dated January 25, 2012 of the OCA, and Motion for Early Resolution of the Administrative Cases to the SC First Division.
June 26, 2012	Resolution:[18] (1) Treated the Memorandum dated April 25, 2012 of the OCA as an Administrative Complaint against Judge Yu to be docketed as AM No. MTJ-12-1813; and (2) Required Judge Yu to Comment on the OCA's April 25, 2012 Memorandum.
	Resolution[19] noting June 29, 2012 Comment.	July 16, 2012	Comment[20] to the Court's June 26, 2012 Resolution.
		AM No. 11-11-115-MTC and AM No. MTJ-12-1813 (formerly AM No. 12-5-42- MeTC)
		February 28, 2012	Omnibus Motion to Lift Preventive Suspension, Motion for Clarification of Resolution dated February 1, 2012, Motion to Obtain Copy of Memorandum dated January 25, 2012 of the OCA, and Motion for Early Resolution of the Administrative Cases
		March 14, 2012	Motion to Re-Raffle
		March 22, 2012	Supplemental to Omnibus Motion
		May 7, 2012	Motion to Reinstate with Manifestations
		May 28, 2012	Supplemental to Motion to Reinstate with Manifestations
		June 15, 2012	Letter to the OCA "Re OCA IPI No. 10-2308- MTJ"
		June 18, 2012	Manifestation
		June 25, 2012	Second Manifestation
		June 29, 2012	Comment[21] in relation with the establishment of Night Courts in AM No. 12-1-09-MTC.
July 31, 2012	Resolution:[22] noted July 23, 2012 Manifestation.	July 23, 2012	Manifestation[23]expounding certain legal concepts in her July 16, 2012 Comment to Support her dismissal plea - of the charges of Insubordination, Gross Misconduct, and Violation of the New Code of Judicial Conduct.
November 13, 2012	Resolution:[24] noted October 29, 2012 Letter and granted her Request for change of mailing address.
March 12, 2013	Resolution:[25] noted March 6, 2013 Manifestation, stating that February 28, 2013 Certificate of Appreciation for her 2-day lecture on Barangay Justice in Catbalogan City will refute the false and malicious complaint dated May 12, 2011 filed against her by Executive Judge Bibiano Colastino, et al.
March 19, 2013	Resolution[26] noted March 7, 2013 Manifestation.	March 7, 2013	Manifestation[27] (that DCA Bahia should have inhibited herself from signing the April 25, 2012 Memorandum in re AM No. MTJ-12-1813).
		March 31, 2013	Letter[28] to Court Administrator Marquez (Re: March 14, 2013 Letter on Compliance with the Directive to Submit Additional Copies of Complaint)
June 4, 2013	Resolution:[29] noted May 2, 2013 Manifestation; and consolidated AM No. MTJ-12-1813 and AM No. 12-1-09-MeTC. )	May 2, 2013	Manifestation[30] (in relation with her April 8, 2013 Letter to the OCA in re: AM No. MTJ-12-1813)
June 18, 2013	Resolution:[31] noted April 8, 2013 Letter in AM No. 12-1813-MTJ.
August 6, 2013 (In AM Nos. MTJ-12-1813 and 12-1-09-MeTC)	Resolution:[32] directed the resending to Judge Yu of the Court's March 12, 2013 Resolution, which was returned unserved, at her permanent address, per 201 File.
August 27, 2013 (In AM No. MTJ-12-1813 and AM No. 12-1-09-MeTC)	Resolution:[33] noted Judge July 21, 2013 Letter and Motion, and the August 14, 2013 Letter of Atty. Oliveros referring July 21, 2013 Letter requesting for the Constitution of a Fact-Finding Committee to determine the administrative liability of CA Marquez; and consolidated AM Nos. 11-11-115-MeTC, MTJ-12-1815; OCA IPI Nos. 11-2398-MTJ, 11-2399-MTJ, 11-2378-MTJ, and 12-2456-MTJ with AM Nos. 12-1813 and 12-1-09-MeTC.	July 21, 2013	Letter[34] and Motion to Declare Null and Void[35] the February 21, 2012 Resolution of the Court's First Division
September 3, 2013 (In AM Nos. 12-1813, 12-1-09-MeTC, 11-11-115-MeTC, and MTJ-12-1815; and OCA IPI Nos. 1123-99-MTJ, 11-2378-MTJ, and 12-2456-MTJ)	Resolution: noted the August 8, 2013 Memorandum of CA Marquez in compliance with the Court's February 3, 2013 Resolution in AM No. 12-1-09-MeTC.
		September 7, 2013	Manifestation[36] Re the Consolidation of Administrative Cases: AM Nos. MTJ-12-1813, 12-1-09-MeTC, 11-11-115-MeTC, and MTJ-12-1815; OCA IPI Nos. 11-2398-MTJ, 11-2399-MTJ, 11-2378-MTJ, and 12-2456-MTJ in the Court En Banc's August 27, 2013 Resolution.
		September 18, 2013	Letter[37] to CJ thru Atty. Oliveros (Re: Fact-Finding Committee on Administrative Liability of the OCA).
October 8, 2013 (In AM Nos. 12-1813, 12-1-09-MeTC, 11-11-115-MeTC, and MTJ-12-1815; and OCA IPI Nos. 1123-99-MTJ, 11-2378-MTJ, and 12-2456- MTJ)	Resolution:[38] noted September 27, 2013 Manifestation relative to the Court's August 27, 2013 Resolution.	September 27, 2013	Manifestation[39] (Re: Consolidation of Administrative Cases).
		October 8, 2013	Letter[40] to Atty. Geronga (Chief, SC Legal Office) Re: Motion to Strike Out dated October 7, 2013 - in relation with the testimonies of Amor Abad, et al.
October 22, 2013 (In AM Nos. 12-1813, 12-1-09-MeTC, 11-11-115-MeTC, and MTJ-12-1815;and OCA IPI Nos. 1123-99-MTJ, 11-2378-MTJ, and 12-2456-MTJ)	Resolution:[41] noted October 9, 2013 Manifestation.	October 9, 2013	Manifestation[42] Re the Consolidation of Administrative Cases (Acknowledging receipt of the Court's August 6, 2013 Resolution).
November 12, 2013 (In AM Nos. 12-1813, 12-1-09-MeTC, 11-11-115-MeTC, and MTJ-12-1815; and OCA IPI Nos. 1123-99-MTJ, 11-2378-MTJ, and 12-2456-MTJ)	Resolution:[43] directed the resending to Judge Yu at her permanent address per her 201 filed of the Court's June 4, 2013 and August 27, 2013 Resolutions which were and returned unserved.
November 19, 2013 (In AM Nos. 12-1813, 12-1-09-MeTC, 11-11-115- MeTC, and MTJ-12-1815; and OCA IPI Nos. 1123-99-MTJ, 11-2378-MTJ, and 12-2456-MTJ)	Resolution:[44] directing the resending to Judge Yu at her permanent address per her 201 File of the Court's August 6, 2013 Resolution which was returned unserved; and denied November 7, 2013 Motion to Inhibit.	November 7, 2013	Motion to inhibit CA Marquez[45]
December 3, 2013 (In AM Nos. 12-1813, 12-1-09-MeTC, 11-11-115-MeTC, and MTJ-12-1815; and OCA IPI Nos. 1123-99-MTJ, 11-2378-MTJ, and 12-2456-MTJ)	Resolution:[46] ordered the resending to Judge Yu of the Court's June 18, 2013 Resolution, which was returned unserved, at her permanent address per her 201 File.
December 10, 2013 (In AM Nos. 12-1813, 12-1-09-MeTC, 11-11-115-MeTC, and MTJ-12-1815; and OCA IPI Nos. 1123-99-MTJ, 11-2378-MTJ, and 12-2456- MTJ)	Resolution:[47] noted the December 9, 2013 Letter of Atty. Oliveros referring September 18, 2013 Letter and her Letter regarding AM No. 11-11-115-MTJ.
January 28, 2014 (In AM Nos. 12-1813, 12-1-09-MeTC, 11-11-115- MeTC, and MTJ-12-1815; and OCA IPI Nos. 1123-99-MTJ, 11-2378-MTJ, and 12-2456- MTJ)	Resolution:[48] ordered the resending to Judge Yu of the Court's September 3, 2013 and October 8, 2013 Resolutions, which were returned unserved, including all court processes intended for her.
		February 1, 2014	Letter[49] (in support of the Complaint of Clerk III Ferdinand A. Santos against Court Administrator Marquez).
March 18, 2014 (In AM Nos. 12-1813, 12-1-09-MeTC, 11-11-115-MeTC, and MTJ-12-1815; and OCA IPI Nos. 1123-99-MTJ, 11-2378-MTJ, and 12-2456-MTJ)	Resolution:[50] noted February 7, 2014 Manifestation; denied her MR; noted and denied her March 7, 2014 Supplement to the MR.	February 7, 2014	Manifestation[51] Confirmation of January 14, 2014 Manifestation).
		February 8, 2014	Letter[52] to CJ Sereno thru Atty. Oliveros (in support of the Complaint of Clerk III Ferdinand A. Santos against Court Administrator Marquez).
		February 24, 2014	MR[53] to the November 19, 2013 Resolution denying her Motion to Inhibit (against CA Marquez).
		March 28, 2014	Letter[54] to CJ Sereno thru Atty. Oliveros (Re: Supplemental Complaint Against the OCA).
		March 28, 2014	Letter[55] to Atty. Geronga (Re: Delayed Resolution of Administrative Case).
		March 31, 2014	Letter[56] to CJ Sereno thru Atty. Oliveros (Re: Supplemental Administrative Complaint against the OCA in relation with her September 18, 2013 Letter on Re; fact-Finding Committee of Administrative Liability of OCA).
		April 2, 2014	Letter[57] to CJ Sereno thru Atty. Oliveros (Re: Substantiation of Supplemental Administrative Complaint against the OCA).
		July 9, 2014	Motion to Dismiss Administrative Complaints.[58]
		July 21, 2014	Letter[59] to Atty. Geronga (Re: Submitting Amended Joint Motion to Dismiss dated July 9, 2014).
August 12, 2014 (In AM Nos. 12-1813, 12-1-09-MeTC, 11-11-115- MeTC, and MTJ-12-1815; and OCA IPI Nos. 1123-99-MTJ, 11-2378-MTJ, and 12-2456-MTJ)	Resolution:[60] noted July 21, 2014 Letter submitting her Amended Joint Motion to Dismiss in OCA IPI Nos. 11-2378-MTJ, 11-2398-MTJ, 11-2399-MTJ, and 12-2456-MTJ, and AM Nos. MTJ-12-1815 and 12-1-09-MeTC; and the March 31, 2014 Supplemental Administrative Complaints of CA Marquez in relation with September 18, 2013 Letter concerning the alleged administrative liability of CA Marquez.
August 21, 2014	Resolution:[61] noted Letters.
September 1, 2014	Resolution:[62] noted July 9, 2014 Joint Motion to Dismiss and July 9, 2014 Motion to Dismiss; denied her Partial MR and her June 18, 2014 Letter; and noted without action her July 17, 2014 Letter.
		May 27, 2015	Letter questioning her preventive suspension; and seeking the early resolution of the administrative cases against her.[63]
September 1, 2015 (In AM Nos. 12-1813, 12-1-09-MeTC, 11-11-115-MeTC, and MTJ-12-1815; and OCA IPI Nos. 1123-99-MTJ, 11-2378-MTJ, and 12-2456-MTJ)	Resolution:[64] noted without action: (1) July 9, 2014 Joint Motion to Dismiss in AM Nos. 12-1-09-MeTC and MTJ-12-1815; and OCA IPI Nos. 11-2399-MTJ, 11-2378-MTJ, and 12-2456-MTJ); (2) July 9, 2014 Motion to Dismiss in AM No. MTJ-12-1813; and (3) July 9, 2013 Motion to Dismiss in AM No. MTJ-18-1821; denied for lack of merit the Partial Motion for Reconsideration of the Denial of the Motion for Severance of Consolidated Administrative Cases by the Honorable Supreme Court En Banc dated July 14, 2014; denied for lack of basis June 18, 2014 Letter praying that Atty. Gito be impleaded as co- respondent of Judge San Gaspar-Gito in AM No. 13-1821; and noted without action July 17, 2014 Letter stating that she wants to correct an error on page 7 of her September 2, 2011 Comment in OCA IPI No. 11-2399-MTJ.

II. The OCA's findings as affirmed by the Court.

A. The OCA's findings and recommendation.

Through a Memorandum^[65] dated February 11, 2016, the Office of the Court Administrator (OCA), through Deputy Court Administrator Jenny Lind R. Aldecoa-Delorino, recommended the following:

RECOMMENDATION: It is respectfully recommended for the consideration of the Honorable Court that respondent Judge Eliza B. Yu, Branch 47, Metropolitan Trial Court, Pasay City be found GUILTY of INSURBORDINATION, GROSS IGNORANCE OF THE LAW, REFUSAL TO PERFORM OFFICIAL FUNCTIONS, GROSS MISCONDUCT AMOUNTING TO VIOLATION OF THE CODE OF JUDICIAL CONDUCT, GRAVE ABUSE OF AUTHROITY, OPPRESSION, and CONDUCT UNBECOMING OF A JUDGE, and be DISMISSED FROM THE SERVICE with forfeiture of all benefits, except accrued leave credits, and disqualification from reinstatement or appointment to any public office including government-owned or controlled corporations.

The OCA found Judge Yu Guilty of: (1) insubordination for her refusaJ to comply with AO No. 19-2011 and to honor the appointments of Ms. Lagman and Ms. Tejero-Lopez; (2) gross misconduct and violation of Section 6, Canon 4 of the New Code of Judicial Conduct for her letter to the Department of Tourism Secretary Lim; (3) oppression for her conduct in relation with Noel Labid's request for sick leave; (4) gross ignorance of the law for her act of allowing the criminal proceedings in her court to continue without the presence of the public prosecutor and for ordering the reception of evidence by the OIC who was not a member of the Bar; and (5) grave abuse of authority for issuing a show cause order against Judge Colasito, et al.

The OCA likewise agreed with the findings and recommendation of Judge Abdulwahid but clarified that her use of the court's official letterhead in summoning the brother of Judge San Gaspar-Gito demonstrated abuse of power and a violation of Section 8, Canon 4 of the New Code of Judicial Conduct.

The OCA, however, recommended the dismissal of the charges of gross ignorance of the law for allowing OJTs and in directing the court staff to sell her books, including the alleged malicious utterances against Court Administrator Marquez; and upheld requiring the plaintiffs with pending replevin cases to pay legal fees for transcripts pursuant to her prerogative to ensure that the court funds are properly accounted for.

B. The ponencia's ruling.

The ponencia agreed with the recommendations and findings of the OCA.

In re Judge Yu's non-compliance with AO. No. 19-2011. The ponencia rules that the manner by which Judge Yu chose to express her dissent against AO No. 19-2011 has transgressed the bounds of judicial ethics. The ponenciareminds that Judge Yuhas sworn to obey the orders and processes of the Court without delay. Her unjustified refusal to comply with the directives/orders of the OCA and the Court made her liable for gross insubordination and gross misconduct. More importantly, the ponencia emphasizes, refusal to submit to night duty openly defied the Court's authority, to issue AO No. 19-2011, that the Constitution grants it under Article VIII, Section 5(5) of the Constitution.

In re Judge Yu's refusal to honor the appointments of court personnel. The ponencia agrees that persistent refusal to honor the appointments amounted to a brazen challenge against the Court's power and discretion to appoint court employees. It emphasizes that these appointments are in the form of an order or directive from the Court which Judge Yu had no right to reject For these acts, Judge Yu is liable for gross insubordination and gross misconduct.

In re Judge Yu's issuing of a show cause order against judges and court personnel. The ponencia likewise agrees with the OCA that the show cause order Judge Yu issued in OCA IPI No. 11-2378-MTJ demonstrated her clear abuse of court processes and flagrant abuse of authority, as well as her motivation to retaliate against her accusers, thereby violating Section 8, Canon 4 of the New Code of Judicial Conduct.

In re Judge Yu's refusal to sign the application for leave of absence and other allegations of oppression. Equally, the ponencia agrees that inordinate refusal to approve Noel Labid's leave of absence application, notwithstanding the latter's compliance with the requirements for sick leave application per the 2002 Revised Manual for Clerks of Court, reveals a motive to retaliate against Noel Labid for his joining the administrative complaint against her; these acts amount to grave abuse of authority and oppression.

The ponencia also dismisses the other allegations of oppression for lack of substantiation.

In re the charges of gross ignorance of the law. The ponencia however disagrees with the OCA's findings and rules that Judge Yu: (1) deliberately ignored OCA Circular No. 111-2005 in prohibiting on-the-job trainees when she issued the November 10, 2010 Memorandum naming the student, Ms. Rosali, as encoder and assigning her to court duties similar to a court employee; (2) violated CSC Memorandum Circular No. 06-05 when she designated Mr. Santos, as first level personnel, as OIC which is reserved to personnel belonging to the second level.

In re allowing criminal proceedings without the presence of the public prosecutor. The ponencia rules that Judge Yu should not only be cited for her failure to abide by Section 5, Rule 110 of the Rules of Court when she allowed the proceedings in People v. Manduriao to proceed without the actual presence of the public prosecutor. The ponenciapoints out that she should likewise be cited for her failure to comply with Section 6, Rule 116 of the same Rules when she allowed the change of plea by the accused in the same case without the assistance of counsel. To the ponencia, as a judge, she should know the fundamental substantive and procedural requirements on arraignment and right to counsel found in the Constitution and the Rules of Court (Revised Rules on Criminal Procedure).

In re her sending inappropriate messages. Finally, the ponencia agrees with Judge Abdulwahid's conclusions that Facebook and Yahoo messages to Judge San Gaspar-Gito contained sexual innuendos that are improper for a magistrate to write and send to another who find them vexatious and annoying, conduct that is improper and unbecoming of a member of the judiciary.

In line with this conclusion, the ponencia likewise agrees with the OCA's findings and rules that use of the court's official letterhead in summoning Atty. Reynaldo San Gaspar, Judge San Gaspar­-Gito's brother, constitutes abuse of power and violates Section 8, Canon 4, as well as Section 4 of Canon 1 and Section 1 of Canon 4, all of the New Code of Judicial Conduct.

III. My reasons for the vote to disbar Judge Yu.

The ponencia refuses to disbar Judge Yu reasoning that "this rule of fusing the dismissal of a judge with disbarment does not in any way dispense with or set aside [Judge Yu's] right to due process. As such, his [sic] disbarment as an offthoot of A.M No. 02-9-02-SC without requiring him [sic] to comment on the disbarment is violative of her right to due process. Thus, she should first be afforded the opportunity of defending her professional standing as a lawyer before she would be disbarred."

Notably, the ponencia recognizes that the administrative charges against Judge Yu in fact likewise constitutes as grounds for disciplinary actions against members of the Bar which the Court can very well treat as justifiable disciplinary initiatives to remove her from the Roll. It points out that membership in the Bar is an integral aspect of her qualification for judgeship. To the ponencia, "her moral and actual fitness to remain as a judge reflected her indelible unfitness to remain as a member of the Bar" who therefore must no longer "remain as its member because she thereby also violated her Layer's Oath."

I respect my colleague's position that gives significance to right to due process. To be sure, everyone charged before any court or tribunal is entitled to due process or at the very least an opportunity to relay one's side and defend himself or herself. No less than our Constitution guarantees this right as it provides that "no person shall be deprived of life, liberty, or property without due process of the law x x x." Judges charged with administrative complaints are no exceptions to this due process requirement.

I disagree, however, with the ponencia's refusal to disbar Judge Yu in these proceedings as I do not find that she had not been given ample opportunity to explain and defend her professional standing as a lawyer. Contrary to the ponencia's observation, the records fully support the conclusion that Judge Yu has had more than the requisite minimum opportunity to explain herself against the disbarment charges that justifies her removal from the Roll of Attorneys.

A. Nature of disbarment.

Under A.M. No. 02-9-02-SC (which took effect on October 1, 2002), an administrative case against a judge of a regular court based on grounds which are also grounds for disciplinary action against members of the Bar, shall be considered as disciplinary proceedings against such judge as a member of the Bar. Likewise, it provides that judgment in both respects may be incorporated in one decision or resolution. A.M. No. 02-9-02-SC specifically states:

Some administrative cases against justices of the Court of Appeals and the Sandiganbayan; Judges of regular and special courts; and court officials who are lawyers are based on grounds which are likewise grounds for the disciplinary action of members of the Bar for violation of the Lawyer's Oath, the Code of Professional Responsibility; and the Canons of Professional Ethics, or for such other forms of breaches of conduct that have been traditionally recognized as grounds for the discipline of lawyers.

In any of the foregoing instances, the administrative case shall also be considered a disciplinary action against the respondent justice, judge or court official concerned as a member of the Bar. The respondent may forthwith be required to comment on the complaint and show cause why he should not also be suspended, disbarred or otherwise disciplinary sanctioned as a member of the Bar. Judgment in both respects may be incorporated in one decision or resolution. [emphases and underscoring supplied]

The Rules of Court, on the other hand, provides, under Section 27 of Rule 138, that a lawyer may be removed or suspended from the practice of law, among others, for gross misconduct, for any violation of the Lawyer's Oath, and for willful disobedience to the Court's orders, circulars, and other Issuances:

Sec. 27. Attorneys removed or suspended by Supreme Court on what grounds. - A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. [emphases and underscoring supplied]

It should be pointed out that the Lawyer's Oath is a source of a lawyer's obligations and its violation is a ground for disbarment or other disciplinary action. In addition to this, the Code of Professional Responsibility forbids a lawyer to engage in unlawful, dishonest, immoral, or deceitful conduct as provided under its Rule 1.01. Thus, every lawyer must pursue only the highest standards in the practice of his calling. This is because the practice of law is a privilege, and only those adjudged qualified are permitted to do so.^[66]

It must be stressed, however, that the purpose of disbarment is not meant as a punishment depriving a lawyer of a source of livelihood; rather, it is intended to protect the administration of justice that those who exercise this function should be competent, honorable, and reliable in order that the courts and clients may rightly repose confidence in them.^[67]

In Office of the Court Administrator v. Judge Indar,^[68] the Court automatically disbarred the respondent judge pursuant to the provisions of A.M. No. 02-9-02-SC, adopting the reasoning held in Samson v. Caballero that:

Under the same rule, a respondent "may forthwith be required to comment on the complaint and show cause why he should not also be suspended, disbarred or otherwise disciplinarily sanctioned as member of the Bar." The rule does not make it mandatory, before respondent may be held liable as a member of the bar, that respondent be required to comment on and show cause why he should not be disciplinarily sanctioned as a lawyer separately from the order for him to comment on why he should not be held administratively liable as a member of the bench. In other words, an order to comment on the complaint is an order to give an explanation on why he should not be held administratively liable not only as a member of the bench but also as a member of the bar. This is the fair and reasonable meaning of "automatic conversion" of administrative cases against justices and judges to disciplinary proceedings against them as lawyers. This will also serve the purpose of A.M. No. 02-9-02-SC to avoid the duplication or unnecessary replication of actions by treating an administrative complaint filed against a member of the bench also as a disciplinary proceeding against him as a lawyer by mere operation of the rule. Thus, a disciplinary proceeding as a member of the bar is impliedly instituted with the filing of an administrative case against a justice of the Sandiganbayan, Court of Appeals and Court of Tax Appeals or a judge of a first- or second-level court.

It cannot be denied that respondent's dishonesty did not only affect the image of the judiciary, it also put his moral character in serious doubt and rendered him unfit to continue in the practice of law. Possession of good moral character is not only a prerequisite to admission to the bar but also a continuing requirement to the practice of law. If the practice of law is to remain an honorable profession and attain its basic ideals, those counted within its ranks should not only master its tenets and principles but should also accord continuing fidelity to them. The requirement of good moral character is of much greater import, as far as the general public is concerned, than the possession of legal learning.[emphasis in the original]

The Court similarly ruled in the fairly recent case of Office of the Court Administrator v. Presiding Judge Joseph Cedrick O. Ruiz^[69] where it dismissed from the service and at same time disbarred the erring respondent judge, Joseph Cedrick O. Ruiz.

B. Due process requirements in administrative proceedings for disbarment.

Jurisprudence settles that technical rules of procedure and evidence are not strictly applied to administrative proceedings. In administrative proceedings, it is enough that the party is given the chance to be heard before the case against him is decided. In the application of the principle of due process in administrative proceedings, what is sought to be safeguarded is not lack of previous notice but the denial of the opportunity to be heard.^[70]

In Office of the Court Administrator v. Judge Indar,^[71] the Court explained the underlying principle for the relaxation of the due process requirements in administrative proceedings. Citing Cornejo, the Court pointed out that "a public office is not property within the sense of the constitutional guaranties of due process of law, but is a public trust or agency." Thus, the strict application of technical rules of procedure required in judicial proceedings are not required with equal force in administrative proceed.^[72]

In the leading case of Ang Tibay v. CIR,^[73] the Court laid down the following due process requirements that must be complied with in administrative proceedings: (1) the respondents' right to a hearing, which includes the right to present one's case and submit supporting evidence, must be observed; (2) the tribunal must consider the evidence presented; (3) the decision must have some basis to support itself; (4) there must be substantial evidence; (5) the decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; (6) in arriving at a decision, the tribunal must have acted on its own consideration of the law and the facts of the controversy and must not have simply accepted the views of a subordinate; and (7) the decision must be rendered in such manner that respondents would know the reasons for it and the various issues involved.

C. Judge Yu had been afforded more than sufficient opportunity to defend her side in the numerous administrative complaints against her that included a charge for disbarment, and violation of the Code of Professional Responsibility and of the Lawyer's Oath.

Based on the above considerations, I submit that the due process requirements in administrative proceedings had been sufficiently complied as the Court finds Judge Yu guilty of gross insubordination, gross ignorance of the law, gross misconduct, grave abuse of authority, oppression, and conduct unbecoming of a judicial official.

In the following cases, Judge Yu was charged with grounds that likewise constitute as grounds for disbarment: (1) OCA IPI No. 11-2378- MTJ^[74] for gross insubordination, grave misconduct, violation of SC circulars, violation of the Code of Professional Responsibility, and violation of the Oath, among others; (2) OCA IPI No. 11-2399-MTJ^[75] for grave misconduct, among others; (3) AM No. MTJ-12-1815 (formerly OCA IPI No. 11-2401-MTJ) for refusal to obey court order; (4) AM No. MTJ-12-1813 (formerly AM No. 12-5-42-MeTC) concerning her refusal to abide by AO No. 19-2011; and (5) AM No. MTJ-13-1836 for misconduct and insubordination.

In all of these cases, Judge Yu had been able to defend herself via Comment, Manifestations, Motions, Letters, and other papers she filed with or sent to the Court, namely:

• In OCA IPI No. 11-2378-MTJ:^[76]
  
  
  - Comment dated June 29, 2011.
• In AM No. MTJ-12-1815:
  
  
  - Comment dated September 1, 2011.
• In OCA IPI No. 11-2399-MTJ:^[77]
  
  
  - Comment dated September 2, 2011.
• In AM No. MTJ-12-1813:
  
  
  - July 16, 2012 Comment to the Court's June 26, 2012 Resolution treating the April 25, 2012 OCA Memorandum as Administrative Complaint against her to be docketed as AM No. MTJ-12-1813;
  
  
  - February 28, 2012 Omnibus Motion to Lift Preventive Suspension, Motion for Clarification of Resolution dated February 1, 2012, Motion to Obtain Copy of Memorandum dated January 25, 2012 of the OCA, and Motion for Early Resolution of the Administrative Cases;
  
  
  - March 14, 2012 Motion to Re-Raffle;
  
  - March 22, 2012 Supplemental to Omnibus Motion;
  
  - May 7, 2012 Motion to Reinstate with Manifestations;
  
  - May 28, 2012 Supplemental to Motion to Reinstate with Manifestations;
  
  - June 15, 2012 Letter to the OCA "Re OCA IPI No. 10-2308-MTJ"
  
  
  - June 18, 2012 Manifestation;
  
  - June 25, 2012 Second Manifestation;
  
  - June 29, 2012 Comment^[78] in relation with the establishment of Night Courts in AM No. 12-1-09-MTC;
  
  - July 23, 2012 Manifestation^[79] expounding certain legal concepts in her July 16, 2012 Comment to Support her dismissal plea - of the charges of Insubordination, Gross Misconduct, and Violation of the New Code of Judicial Conduct;
  
  
  - March 7, 2013 Manifestation^[80] (that DCA Bahia should have inhibited herself from signing the April 25, 2012 Memorandum in re AM No. MTJ-12-1813);
  
  - May 2, 2013 Manifestation^[81] (in relation with her April 8, 2013 Letter to the OCA in re: AM No. MTJ-12-1813).

Judge Yu likewise filed the following: (1) September 7, 2013 Manifestation^[82] Re the Consolidation of Administrative Cases: AM Nos. MTJ-12-1813, 12-1-09-MeTC, 11-11-115-MeTC, and MTJ-12-1815; OCA IPI Nos. 11-2398-MTJ, 11-2399-MTJ, 11-2378-MTJ, and 12-2456-MTJ in the Court En Banc's August 27, 2013 Resolution; (2) September 27, 2013 Manifestation^[83] (Re: Consolidation of Administrative Cases); (3) October 9, 2013 Manifestation^[84] Re the Consolidation of Administrative Cases (Acknowledging receipt of the Court's August 6, 2013 Resolution); (4) May 27, 2015 Letter questioning her preventive suspension; and seeking the early resolution of the administrative cases against her;^[85] and the several pleadings she filed praying that CA Marquez inhibit in the administrative proceedings against her.

The Court duly noted these filings and submissions thru the Resolutions and notices that the Court sent and re-sent to her permanent address written on her 201 File, as well as to the address she stated in her October 29, 2012 Letter^[86] request for change of her mailing address. (I enumerated these numerous Court Resolutions under Part I-B of this Opinion).

All of these - the filings and submissions of Judge Yu and the Resolutions and other processes of the Court that were sent re-sent to Judge Yu confirm the conclusion that Judge Yu had been sufficiently apprised of the charges against her, some of which could likewise potentially cause her disbarment; that she had been given ample opportunity to rebut these charges and present controverting evidence; and that she had used the granted opportunities through the various pleadings and Letters she filed with and sent to the Court.

In other words, Judge Yu had been accorded every opportunity to defend her professional standing as a lawyer sufficient to warrant the ultimate sanction of disbarment.

A final word. Judge Yu is a disgrace to both the bench and the bar. As I pointed out above, her ignorance, arrogance, recalcitrant attitude, uncharacteristic insubordination, megalomania, and lack of humility demonstrate her incompetence and unfitness to discharge not only the office and duties of judge; more than anything, they reveal an utter incompetence and unfitness to continue discharging the trust and respect invested her as a member of the Bar. Thus, I submit that - aside from being dismissed from the service and as a consequence of the findings of this Court which no other tribunal in the land can reverse - she should likewise be disbarred and her name stricken out from the roll of attorneys.

In sum, I CONCUR with the ponencia's ruling finding Judge Eliza B. Yu guilty of the administrative charges hailed against her and dismissing her from the service, subject to the above reservations.

I VOTE that Judge Eliza B. Yu should likewise be disbarred and her name be stricken off from the roll of attorneys.

---

^[1] Rollo, pp. 741-749.

^[2] Id. at 144.

^[3] These are: Judge Catherine P. Manodon (now Presiding Judge of Branch 104, RTC, Quezon City), Judge Bonifacio S. Pascua (now Presiding Judge of Branch 56, RTC, Makati City; Judge Bibiano G. Colastino (now Presiding Judge of Branch 50, RTC, Manila; and Judge Restituto V. Mangalindan, Branch 46, MeTC, Pasay City. Id. at 712.

^[4] Id. at 712-715.

^[5] Filed by Ms. Josefina G. Labid, mother of Noel Labid, Utility Worker 1, Branch 47, MeTC, Pasay City. Id. at 726-727.

^[6] Filed by the staff of Branch 47, MeTC, Pasay City, who were also complainant in OCA IPI No. 11-2378, namely: Amor V. Abad (Court Interpreter), Froilan I. Tomas (Court Stenographer), Roman H. Aviles (Court Stenographer), Norman D.S. Garcia (Deputy Sheriff IV), Maximo Sayo (Process Server), Emelina J. San Miguel (Records Officer), and Dennis Echegoyen (Deputy Sheriff). Id. at 720.

^[7] Id. at 720-724.

^[8] Id. at 738.

^[9] Id. at 144.

^[10] Id. at 734.

^[11] Id. at 751.

^[12] Id. at 736.

^[13] Id. at 718-720.

^[14] Id. at 738-739.

^[15] Id. at 724-726.

^[16] Id.

^[17] Id. at 734-735.

^[18] Id. at 41-42.

^[19] Id. at 97.

^[20] Id. at 43-73.

^[21] Id. at 41-50.

^[22] Id. at 134.

^[23] Id. at 98-113.

^[24] Id. at 147.

^[25] Id. at 204.

^[26] Id. at 152.

^[27] Id. at 151.

^[28] Id. at 404.

^[29] Id. at 157.

^[30] Id. at 153-156.

^[31] Id. at 214.

^[32] Id. at 175.

^[33] Id. at 183-184.

^[34] Id. at 177.

^[35] Id. at 178-182.

^[36] Id. at 185-188.

^[37] Id. at 207-210.

^[38] Id. at 189-190.

^[39] Id. at 185-188.1

^[40] Id. at 193-195.

^[41] Id. at 196-197.

^[42] Id. at 191-192.

^[43] Id. at 201-202.

^[44] Id. at212-213.

^[45] Id. at 205-206.

^[46] Id. at 217-218.

^[47] Id. at 225-226.

^[48] Id. at. 229-230.

^[49] Id. at 449-454.

^[50] Id. at 400-402.

^[51] Id. at 383-391.

^[52] Id. at 437-444.

^[53] Id. at 393-399.

^[54] Id. at 513-528.

^[55] Id. at 533-535.

^[56] Id. at 361-376.

^[57] Id. at 277-278.

^[58] Id. at 537-630.

^[59] Id. at 536.

^[60] Id. at 639-641.

^[61] Id. at 639-641.

^[62] Id. at 681-684.

^[63] Id. at 752.

^[64] Id. at 681-684.

^[65] Id. at 701-755.

^[66] See Cojuanco, Jr. v. Atty. Palma, 481 Phil. 646 (2004), citing In Re: Gutierrez, Adm. Case No. L-363, July 31, 1962, 5 SCRA 661; Pantanosas, Jr. v. Atty. Elly L. Pamatong, AC No. 7330, Jun 14, 2016; and Spouses Garcia v. Atty. Bala, 512 Phil. 486 (2005).

^[67] See Rosa Yap-Paras v. Atty. Justo Paras, AC No. 4947, 551 Phil. 338 (2007); and Avancena v. Judge Ricardo P. Liwanag, 454 Phil. 20 (2003).

^[68] 685 Phil. 272, 292-293 (2012), citing Samson v. Caballero, A.M. No. RTJ-08-2138, August 5, 2009, 595 SCRA 423, 435-436.

^[69] A.M. No. RTJ-13-2361, February 2, 2016, sc.judiciary.gov.ph.

^[70] See Office of the Court Administrator v. Judge Indar, 685 Phil. 272, 292-293 (2012) [citations omitted].

^[71] 685 Phil. 272 (2012).

^[72] See Office of the Court Administrator v. Judge Indar, 685 Phil. 272, 292-293 (2012), citing Cornejo, 41 Phil. 188, 194 (1920).

^[73] 69 Phil. 635, 644 (1940).

^[74] Rollo, pp. 712-715.

^[75] Filed by the staff of Branch 47, MeTC, Pasay City, who were also complainant in OCA IPI No. 11-2378, namely: Amor V. Abad (Court Interpreter), Froilan I. Tomas (Court Stenographer), Roman H. Aviles (Court Stenographer), Norman D.S. Garcia (Deputy Sheriff IV), Maximo Sayo (Process Server), Emelina J. San Miguel (Records Officer), and Dennis Echegoyen (Deputy Sheriff). Id. at 720.

^[76] Id. at 718-720.

^[77] Filed by the staff of Branch 47, MeTC, Pasay City, who were also complainant in OCA IPI No. 11-2378, namely: Amor V. Abad (Court Interpreter), Froilan I. Tomas (Court Stenographer), Roman H. Aviles (Court Stenographer), Nom1an D.S. Garcia (Deputy Sheriff IV), Maximo Sayo (Process Server), Emelina J. San Miguel (Records Officer), and Dennis Echegoyen (Deputy Sheriff). Id. at 720.

^[78] Id. at 41-50.

^[79] Id. at 98-113.

^[80] Id. at 151.

^[81] Id. at 153-156.

^[82] Id. at 185-188.

^[83] Id. at 185-188.1

^[84] Id. at 191-192.

^[85] Id. at 752.

^[86] See the Court's November 13, 2012 Resolution.

Challenged in this petition for certiorari^[1] and prohibition under Rule 65 of the Rules of Court is the constitutionality of Section 11 of Republic Act (R.A.) No. 9160, the Anti-Money Laundering Act, as amended, specifically the Anti-Money Laundering Council's authority to file with the Court of Appeals (CA) in this case, an ex-parte application for inquiry into certain bank deposits and investments, including related accounts based on probable cause.In 2015, a year before the 2016 presidential elections, reports abounded on the supposed disproportionate wealth of then Vice President Jejomar Binay and the rest of his family, some of whom were likewise elected public officers. The Office of the Ombudsman and the Senate conducted investigations^[2] and inquiries^[3] thereon ostensibly based on their respective powers delineated in the Constitution.
From various news reports announcing the inquiry into then Vice President Binay's bank accounts, including accounts of members of his family, petitioner Subido Pagente Certeza Mendoza & Binay Law Firm (SPCMB) was most concerned with the article published in the Manila Times on 25 February 2015 entitled "Inspect Binay Bank Accounts" which read, in pertinent part:

xxx The Anti-Money Laundering Council (AMLC) asked the Court of Appeals (CA) to allow the [C]ouncil to peek into the bank accounts of the Binays, their corporations, and a law office where a family member was once a partner.
xxxx
Also the bank accounts of the law office linked to the family, the Subido Pagente Certeza Mendoza & Binay Law Firm, where the Vice President's daughter Abigail was a former partner.^[4]

The following day, 26 February 2015, SPCMB wrote public respondent, Presiding Justice of the CA, Andres B. Reyes, Jr.:

The law firm of Subido Pagente Certeza Mendoza and Binay was surprised to receive a call from Manila Times requesting for a comment regarding a [supposed petition] filed by the Republic of the Philippines represented by the Anti-Money Laundering Council before the Court of Appeals seeking to examine the law office's bank accounts.
To verify the said matter, the law office is authorizing its associate Atty. Jose Julius R. Castro to inquire on the veracity of said report with the Court of Appeals. He is likewise authorized to secure copies of the relevant documents of the case, such as the petition and orders issued, if such a case exists.
As this is a matter demanding serious and immediate attention, the Firm respectfully manifests that if no written response is received within 24-hours from receipt of this letter, we shall be at liberty to assume that such a case exists and we shall act accordingly.
Hoping for your immediate action.

Respectfully yours, For the Firm   CLARO F. CERTEZA[5]

Within twenty four (24) hours, Presiding Justice Reyes wrote SPCMB denying its request, thus:

Anent your request for a comment on a supposed petition to inquire into your law office's bank accounts, please be informed that a petition of this nature is strictly confidential in that when processing the same, not even the handling staff members of the Office of the Presiding Justice know or have any knowledge who the subject bank account holders are, as well as the bank accounts involved.
Please be informed further that clearly under the rules, the Office of the Presiding Justice is strictly mandated not to disclose, divulge, or communicate to anyone directly or indirectly, in any manner or by any means, the fact of the filing of any petition brought before this Court by the Anti-Money Laundering Council, its contents and even its entry in the logbook.
Trusting that you find satisfactory the foregoing explanation.^[6]

By 8 March 2015, the Manila Times published another article entitled, "CA orders probe of Binay's assets" reporting that the appellate court had issued a Resolution granting the ex-parte application of the AMLC to examine the bank accounts of SPCMB:

The Court of Appeals (CA) has officially issued an order for examination of Vice President Jejomar Binay's bank accounts.
In granting the petition of the Anti-Money Laundering Council (AMLC), the CA also ordered the inspection of the bank deposits of Binay's wife, children, and a law office connected to him.

The bank accounts of the law office linked to Binay - the Subido Pagente Certeza Mendoza & Binaywhere Binay's daughter, Makati City (Metro Manila) Rep. Mar-len Abigail Binay was a partner, are also included in the probe, the sources said.^[7]

Forestalled in the CA thus alleging that it had no ordinary, plain, speedy, and adequate remedy to protect its rights and interests in the purported ongoing unconstitutional examination of its bank accounts by public respondent Anti-Money Laundering Council (AMLC), SPCMB undertook direct resort to this Court via this petition for certiorari and prohibition on the following grounds:

1. THE ANTI-MONEY LAUNDERING ACT IS UNCONSTITUTIONAL INSOFAR AS IT ALLOWS THE EXAMINATION OF A BANK ACCOUNT WITHOUT ANY NOTICE TO THE AFFECTED PARTY:
   
   

   1.	IT VIOLATES THE PERSON'S RIGHT TO DUE PROCESS; AND
   2.	IT VIOLATES THE PERSON'S RIGHT TO PRIVACY.

2. EVEN ASSUMING ARGUENDO THAT THE ANTI-MONEY LAUNDERING ACT IS CONSTITUTIONAL, THE RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION CONSIDERING THAT:
   
   

   1.	THE REFUSAL OF RESPONDENT PRESIDING JUSTICE TO PROVIDE PETITIONER WITH A COPY OF THE EX-PARTE APPLICATION FOR BANK EXAMINATION FILED BY RESPONDENT AMLC AND ALL OTHER PLEADINGS, MOTIONS, ORDERS, RESOLUTIONS, AND PROCESSES ISSUED BY THE RESPONDENT COURT OF APPEALS IN RELATION THERETO VIOLATES PETITIONER'S RIGHT TO DUE PROCESS;
   2.	A CARTE BLANCHE AUTHORITY TO EXAMINE ANY AND ALL TRANSACTIONS PERTAINING TO PETITIONER'S BANK ACCOUNTS VIOLATES THE ATTORNEY-CLIENT PRIVILEGE WHICH IS SACROSANCT IN THE LEGAL PROFESSION;
   3.	A BLANKET AUTHORITY TO EXAMINE PETITIONER'S BANK ACCOUNTS, INCLUDING ANY AND ALL TRANSACTIONS THEREIN FROM ITS OPENING UP TO THE PRESENT, PARTAKES THE NATURE OF A GENERAL WARRANT THAT IS CLEARLY INTENDED TO AID A MERE FISHING EXPEDITION;
   4.	THERE IS NOTHING IN THE ANTI-MONEY LAUNDERING ACT THAT ALLOWS OR JUSTIFIES THE WITHHOLDING OF INFORMATION AND/OR ANY COURT RECORDS OR PROCEEDINGS PERTAINING TO AN EXAMINATION OF A BANK ACCOUNT, ESPECIALLY IF THE COURT HAS ALREADY GRANTED THE AUTHORITY TO CONDUCT THE EXAMINATION;
   5.	THE PETITIONER DID NOT COMMIT, NOR HAS THE PETITIONER BEEN IMPLEADED IN ANY COMPLAINT INVOLVING ANY PREDICATE CRIME THAT WOULD JUSTIFY AN INQUIRY INTO ITS BANK ACCOUNTS; AND
   7.	THE EXAMINATION OF THE PETITIONER'S BANK ACCOUNTS IS A FORM OF POLITICAL PERSECUTION OR HARASSMENT.[8]

In their Comment, the AMLC, through the Office of the Solicitor General (OSG), points out a supposed jurisdictional defect of the instant petition, i.e., SPCMB failed to implead the House of Representatives which enacted the AMLA and its amendments. In all, the OSG argues for the dismissal of the present petition, highlighting that the AMLC's inquiry into bank deposits does not violate due process nor the right to privacy:
1. Section 11's allowance for AMLC's ex-parte application for an inquiry into particular bank deposits and investments is investigative, not adjudicatory;
2. The text of Section 11 itself provides safeguards and limitations on the allowance to the AMLC to inquire into bank deposits: (a) issued by the CA based on probable cause; and (b) specific compliance to the requirements of Sections 2 and 3, Article III of the Constitution;
3. The ex-parte procedure for investigating bank accounts is necessary to achieve a legitimate state objective;
4. There is no legitimate expectation of privacy as to the bank records of a depositor;
5. The examination of, and inquiry, into SPCMB's bank accounts does not violate Attorney-Client Privilege; and
6. A criminal complaint is not a pre-requisite to a bank inquiry order.
In their Reply, SPCMB maintains that the ex-parte proceedings authorizing inquiry of the AMLC into certain bank deposits and investments is unconstitutional, violating its rights to due process and privacy.
Before anything else, we here have an original action turning on three crucial matters: (1) the petition reaches us from a letter of the Presiding Justice of the CA in response to a letter written by SPCMB; (2) SPCMB's bank account has been reported to be a related account to Vice President Binay's investigated by the AMLC for anti-money laundering activities; and (3) the constitutionality of Section 11 of the AMLA at its recent amendment has not been squarely raised and addressed.
To obviate confusion, we act on this petition given that SPCMB directly assails the constitutionality of Section 11 of the AMLA where it has been widely reported that Vice President Binay's bank accounts and all related accounts therewith are subject of an investigation by the AMLC. In fact, subsequent events from the filing of this petition have shown that these same bank accounts (including related accounts) were investigated by the Ombudsman and both Houses of the Legislature. However, at the time of the filing of this petition, SPCMB alleged that its accounts have been inquired into but not subjected to a freeze order under Section 10 of the AMLA. Thus, as previously noted, with its preclusion of legal remedies before the CA which under the AMLA issues the ex-parte bank inquiry and freeze orders, Sections 10 and 11, respectively, SPCMB establishes that it has no plain, speedy and adequate remedy in the ordinary course of law to protect its rights and interests from the purported unconstitutional intrusion by the AMLC into its bank accounts.
The foregoing shall be addressed specifically and bears directly on the disposition of the decision herein.
Additionally, we note that the OSG did not question how this petition reaches us from a letter of the appellate court's Presiding Justice, only that, procedurally, SPCMB should have impleaded Congress.
On the sole procedural issue of whether SPCMB ought to have impleaded Congress, the contention of the OSG though novel is untenable. All cases questioning the constitutionality of a law does not require that Congress be impleaded for their resolution. The requisites of a judicial inquiry are elementary:

1. There must be an actual case or controversy; party;
2. The question of constitutionality must be raised by the proper party;
3. The constitutional question must be raised at the earliest possible opportunity; and
4. The decision of the constitutional question must be necessary to the determination of the case itself.^[9]

The complexity of the issues involved herein require us to examine the assailed provision vis-a-vis the constitutional proscription against violation of due process. The statute reads:

SEC. 11. Authority to Inquire into Bank Deposits. - Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791; and other laws, the AMLC may inquire into or examine any particular deposit or investment, including related accounts, with any banking institution or non-bank financial institution upon order of any competent court based on an ex parte application in cases of violations of this Act, when it has been established that there is probable cause that the deposits or investments, including related accounts involved, are related to an unlawful activity as defined in Section 3(i) hereof or a money laundering offense under Section 4 hereof; except that no court order shall be required in cases involving activities defined in Section 3(i)(1), (2), and (12) hereof, and felonies or offenses of a nature similar to those mentioned in Section 3(i)(1), (2), and (12), which are punishable under the penal laws of other countries, and terrorism and conspiracy to commit terrorism as defined and penalized under Republic Act No. 9372.
The Court of Appeals shall act on the application to inquire into or examine any deposit or investment with any banking institution or non­-bank financial institution within twenty-four (24) hours from filing of the application.
To ensure compliance with this Act, the Bangko Sentral ng Pilipinas may, in the course of a periodic or special examination, check the compliance of a covered institution with the requirements of the AMLA and its implementing rules and regulations.
For purposes of this section, 'related accounts' shall refer to accounts, the funds and sources of which originated from and/or are materially linked to the monetary instrument(s) or property(ies) subject of the freeze order(s).
A court order ex parte must first be obtained before the AMLC can inquire into these related Accounts: Provided, That the procedure for the ex parte application of the ex parte court order for the principal account shall be the same with that of the related accounts.
The authority to inquire into or examine the main account and the related accounts shall comply with the requirements of Article III, Sections 2 and 3 of the 1987 Constitution, which are hereby incorporated by reference.^[10]

The due process clause of the Constitution reads:

SECTION 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. ^[11]

The right to due process has two aspects: (1) substantive which deals with the extrinsic and intrinsic validity of the law; and (2) procedural which delves into the rules government must follow before it deprives a person of its life, liberty or property.^[12]
As presently worded, Section 11 of the AMLA has three elements: (1) ex-parte application by the AMLC; (2) determination of probable cause by the CA; and (3) exception of court order in cases involving unlawful activities defined in Sections 3(i)(1), (2), and (12).
As a brief backgrounder to the amendment to Section 11 of the AMLA, the text originally did not specify for an ex-parte application by the AMLC for authority to inquire into or examine certain bank accounts or investments. The extent of this authority was the topic of Rep. of the Phils. v. Hon. Judge Eugenio, Jr., et al. (Eugenio)^[13] where the petitioner therein, Republic of the Philippines, asseverated that the application for that kind of order under the questioned section of the AMLA did not require notice and hearing. Eugenio schooled us on the AMLA, specifically on the provisional remedies provided therein to aid the AMLC in enforcing the law:

It is evident that Section 11 does not specifically authorize, as a general rule, the issuance ex-parte of the bank inquiry order. We quote the provision in full:

SEC. 11. Authority to Inquire into Bank Deposits. — Notwithstanding the provisions of Republic Act No. 1405, as amended, Republic Act No. 6426, as amended, Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non bank financial institution upon order of any competent court in cases of violation of this Act, when it has been established that there is probable cause that the deposits or investments are related to an unlawful activity as defined in Section 3(i) hereof or a money laundering offense under Section 4 hereof, except that no court order shall be required in cases involving unlawful activities defined in Sections 3(i)1, (2) and (12).
To ensure compliance with this Act, the Bangko Sentral ng Pilipinas (BSP) may inquire into or examine any deposit of investment with any banking institution or non bank financial institution when the examination is made in the course of a periodic or special examination, in accordance with the rules of examination of the BSP. (Emphasis supplied)

Of course, Section 11 also allows the AMLC to inquire into bank accounts without having to obtain a judicial order in cases where there is probable cause that the deposits or investments are related to kidnapping for ransom, certain violations of the Comprehensive Dangerous Drugs Act of 2002, hijacking and other violations under R.A. No. 6235, destructive arson and murder. Since such special circumstances do not apply in this case, there is no need for us to pass comment on this proviso. Suffice it to say, the proviso contemplates a situation distinct from that which presently confronts us, and for purposes of the succeeding discussion, our reference to Section 11 of the AMLA excludes said proviso.
In the instances where a court order is required for the issuance of the bank inquiry order, nothing in Section 11 specifically authorizes that such court order may be issued ex parte. It might be argued that this silence does not preclude the ex parte issuance of the bank inquiry order since the same is not prohibited under Section 11. Yet this argument falls when the immediately preceding provision, Section 10, is examined.

SEC 10. Freezing of Monetary Instrument or Property. — The Court of Appeals, upon application ex parte by the AMLC and after determination that probable cause exists that any monetary instrument or property is in any way related to an unlawful activity as defined in Section 3(i) hereof, may issue a freeze order which shall be effective immediately. The freeze order shall be for a period of twenty (20) days unless extended by the court.

Although oriented towards different purposes, the freeze order under Section 10 and the bank inquiry order under Section 11 are similar in that they are extraordinary provisional reliefs which the AMLC may avail of to effectively combat and prosecute money laundering offenses. Crucially, Section 10 uses specific language to authorize an ex parte application for the provisional relief therein, a circumstance absent in Section 11. If indeed the legislature had intended to authorize ex parte proceedings for the issuance of the bank inquiry order, then it could have easily expressed such intent in the law, as it did with the freeze order under Section 10.
Even more tellingly, the current language of Sections 10 and 11 of the AMLA was crafted at the same time, through the passage of R.A. No. 9194. Prior to the amendatory law, it was the AMLC, not the Court of Appeals, which had authority to issue a freeze order, whereas a bank inquiry order always then required, without exception, an order from a competent court. It was through the same enactment that ex parte proceedings were introduced for the first time into the AMLA, in the case of the freeze order which now can only be issued by the Court of Appeals. It certainly would have been convenient, through the same amendatory law, to allow a similar ex parte procedure in the case of a bank inquiry order had Congress been so minded. Yet nothing in the provision itself, or even the available legislative record, explicitly points to an ex parte judicial procedure in the application for a bank inquiry order, unlike in the case of the freeze order.
That the AMLA does not contemplate ex parte proceedings in applications for bank inquiry orders is confirmed by the present implementing rules and regulations of the AMLA, promulgated upon the passage of R.A. No. 9194. With respect to freeze orders under Section 10, the implementing rules do expressly provide that the applications for freeze orders be filed ex parte, but no similar clearance is granted in the case of inquiry orders under Section 11. These implementing rules were promulgated by the Bangko Sentral ng Pilipinas, the Insurance Commission and the Securities and Exchange Commission, and if it was the true belief of these institutions that inquiry orders could be issued ex parte similar to freeze orders, language to that effect would have been incorporated in the said Rules. This is stressed not because the implementing rules could authorize ex parte applications for inquiry orders despite the absence of statutory basis, but rather because the framers of the law had no intention to allow such ex parte applications.
Even the Rules of Procedure adopted by this Court in A.M. No. 05-11-04-SC to enforce the provisions of the AMLA specifically authorize ex parte applications with respect to freeze orders under Section 10 but make no similar authorization with respect to bank inquiry orders under Section 11.
The Court could divine the sense in allowing ex parte proceedings under Section 10 and in proscribing the same under Section 11. A freeze order under Section 10 on the one hand is aimed at preserving monetary instruments or property in any way deemed related to unlawful activities as defined in Section 3(i) of the AMLA. The owner of such monetary instruments or property would thus be inhibited from utilizing the same for the duration of the freeze order. To make such freeze order anteceded by a judicial proceeding with notice to the account holder would allow for or lead to the dissipation of such funds even before the order could be issued. (Citations omitted.)

Quite apparent from the foregoing is that absent a specific wording in the AMLA allowing for ex-parte proceedings in orders authorizing inquiry and examination by the AMLC into certain bank deposits or investments, notice to the affected party is required.
Heeding the Court's observance in Eugenio that the remedy of the Republic then lay with the legislative, Congress enacted Republic Act No. 10167 amending Section 11 of the AMLA and specifically inserted the word ex-parteappositive of the nature of this provisional remedy available to the AMLC thereunder.
It is this current wording of Section 11 which SPCMB posits as unconstitutional and purportedly actually proscribed in Eugenio.
We do not subscribe to SPCMB's position.
Succinctly, Section 11 of the AMLA providing for ex-parte application and inquiry by the AMLC into certain bank deposits and investments does not violate substantive due process, there being no physical seizure of property involved at that stage. It is the preliminary and actual seizure of the bank deposits or investments in question which brings these within reach of the judicial process, specifically a determination that the seizure violated due process.^[14] In fact, Eugenio delineates a bank inquiry order under Section 11 from a freeze order under Section 10 on both remedies' effect on the direct objects, i.e. the bank deposits and investments:

On the other hand, a bank inquiry order under Section 11 does not necessitate any form of physical seizure of property of the account holder. What the bank inquiry order authorizes is the examination of the particular deposits or investments in banking institutions or non-bank financial institutions. The monetary instruments or property deposited with such banks or financial institutions are not seized in a physical sense, but are examined on particular details such as the account holder's record of deposits and transactions. Unlike the assets subject of the freeze order, the records to be inspected under a bank inquiry order cannot be physically seized or hidden by the account holder. Said records are in the possession of the bank and therefore cannot be destroyed at the instance of the account holder alone as that would require the extraordinary cooperation and devotion of the bank.^[15]

At the stage in which the petition was filed before us, the inquiry into certain bank deposits and investments by the AMLC still does not contemplate any form of physical seizure of the targeted corporeal property. From this cite, we proceed to examine whether Section 11 of the law violates procedural due process.
As previously stated, the AMLA now specifically provides for an ex-parte application for an order authorizing inquiry or examination into bank deposits or investments which continues to pass constitutional muster.
Procedural due process is essentially the opportunity to be heard.^[16] In this case, at the investigation stage by the AMLC into possible money laundering offenses, SPCMB demands that it have notice and hearing of AMLC's investigation into its bank accounts.
We are not unaware of the obiter in Eugenio^[17] and cited by SPCMB, voicing misgivings on an interpretation of the former Section 11 of the AMLA allowing for ex-parte proceedings in bank inquiry orders, to wit:

There certainly is fertile ground to contest the issuance of an ex­-parte order. Section 11 itself requires that it be established that "there is probable cause that the deposits or investments are related to unlawful activities," and it obviously is the court which stands as arbiter whether there is indeed such probable cause. The process of inquiring into the existence of probable cause would involve the function of determination reposed on the trial court. Determination clearly implies a function of adjudication on the part of the trial court, and not a mechanical application of a standard pre-determination by some other body. The word "determination" implies deliberation and is, in normal legal contemplation, equivalent to "the decision of a court of justice."
The court receiving the application for inquiry order cannot simply take the AMLC's word that probable cause exists that the deposits or investments are related to an unlawful activity. It will have to exercise its own determinative function in order to be convinced of such fact. The account holder would be certainly capable of contesting such probable cause if given the opportunity to be apprised of the pending application to inquire into his account; hence a notice requirement would not be an empty spectacle. It may be so that the process of obtaining the inquiry order may become more cumbersome or prolonged because of the notice requirement, yet we fail to see any unreasonable burden cast by such circumstance. After all, as earlier stated, requiring notice to the account holder should not, in any way, compromise the integrity of the bank records subject of the inquiry which remain in the possession and control of the bank. (Emphasis supplied)

On that score, the SPCMB points out that the AMLC 's bank inquiry is preliminary to the seizure and deprivation of its property as in a freeze order under Section 10 of the AMLA which peculiarity lends itself to a sui generis proceeding akin to the evaluation process in extradition proceedings pronounced in Secretary of Justice v. Hon. Lantion.^[18]Under the extradition law, the Secretary of Foreign Affairs is bound to make a finding that the extradition request and its supporting documents are sufficient and complete in form and substance before delivering the same to the Secretary of Justice. We ruled:

[L]ooking at the factual milieu of the case before us, it would appear that there was failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the Department of Justice received the request, apparently without the Department of Foreign affairs discharging its duty thoroughly evaluating the same and its accompanying documents. xxx.
xxxx
[T]he record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a well-founded judgment that the request and its annexed documents satisfy the requirements of law. XXX.
The evaluation process, just like the extradition proceedings, proper belongs to a class by itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated are not extraditable; and (c) to make a determination whether or not the request is politically motivated, or that the offense is a military one which is not punishable under non-military penal legislation. Hence, said process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's quasi-judicial power.
In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order or decision supported by the facts proved. Inquisitorial power, which is also known as examining or investigatory power, is one of the determinative powers of an administrative body which better enables it to exercise its quasi-judicial authority. This power allows the administrative body to inspect the records and premises, and investigate the activities, of persons or entities coming under its jurisdiction, or to require disclosure of information by means of accounts, records, reports, testimony of witnesses, production of documents, or otherwise.
The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial functions. Notably, investigation is indispensable to prosecution.^[19] (Emphasis supplied, citations omitted)

The submission of AMLC requires a determination whether the AMLC is an administrative body with quasi-judicial powers; corollary thereto, a determination of the jurisdiction of the AMLC.
Lim v. Gamosa^[20] is enlightening on jurisdiction and the requirement of a specific grant thereof in the enabling law. We declared that the creation of the National Commission on Indigenous Peoples (NCIP) by the Indigenous Peoples Rights Act (IPRA) did not confer it exclusive and original, nor primary jurisdiction, in all claims and disputes involving rights of IPs and ICCs where no such specific grant is bestowed.
In this instance, the grant of jurisdiction over cases involving money laundering offences is bestowed on the Regional Trial Courts and the Sandiganbayan as the case may be. In fact, Rule 5 of the IRR is entitled Jurisdiction of Money Laundering Cases and Money Laundering Investigation Procedures:

Rule 5.a. Jurisdiction of Money Laundering Cases. The Regional Trial Courts shall have the jurisdiction to try all cases on money laundering. Those committed by public officers and private persons who are in conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan.
Rule 5.b. Investigation of Money Laundering Offenses. - The AMLC shall investigate:

(1) suspicious transactions;
(2) covered transactions deemed suspicious after an investigation conducted by the AMLC;
(3) money laundering activities; and
(4) other violations of the AMLA, as amended.

The confusion on the scope and parameters of the AMLC's investigatory powers and whether such seeps into and approximates a quasi­-judicial agency's inquisitorial powers lies in the AMLC's investigation and consequent initial determination of whether certain activities are constitutive of anti-money laundering offenses.
The enabling law itself, the AMLA, specifies the jurisdiction of the trial courts, RTC and Sandiganbayan, over money laundering cases, and delineates the investigative powers of the AMLC.
Textually, the AMLA is the first line of defense against money laundering in compliance with our international obligation. There are three (3) stages of determination, two (2) levels of investigation, falling under three (3) jurisdictions:
1. The AMLC investigates possible money laundering offences and initially determines whether there is probable cause to charge any person with a money laundering offence under Section 4 of the AMLA, resulting in the filing of a complaint with the Department of Justice or the Office of the Ombudsman;^[21]
2. The DOJ or the Ombudsman conducts the preliminary investigation proceeding and if after due notice and hearing finds probable cause for money laundering offences, shall file the necessary information before the Regional Trial Courts or the Sandiganbayan;^[22]
3. The RTCs or the Sandiganbayan shall try all cases on money laundering, as may be applicable.^[23]
Nowhere from the text of the law nor its Implementing Rules and Regulations can we glean that the AMLC exercises quasi-judicial functions whether the actual preliminary investigation is done simply at its behest or conducted by the Department of Justice and the Ombudsman.
Again, we hark back to Lantion citing Ruperto v. Torres,^[23-a] where the Court had occasion to rule on the functions of an investigatory body with the sole power of investigation:

[Such a body] does not exercise judicial functions and its power is limited to investigating facts and making findings in respect thereto. The Court laid down the test of determining whether an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based on the facts and Circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an absence of judicial discretion and judgment.
adjudicate in regard to the rights and obligations of both the Requesting State and the prospective extraditee. Its only power is to determine whether the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial and not final. The body has no power to determine whether or not the extradition should be effected. That is the role of the court. The body's power is limited to an initial finding of whether or not the extradition petition can be filed in court.
It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of the request. This is so because the Treaty provides that in case of urgency, a contracting party may request the provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the provisions only mean that once a request is forwarded to the Requested State, the prospective extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight from the Requested State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one.
Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency conducting an investigative proceeding, the consequences of which are essentially criminal since such technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee, As described by petitioner himself, this is a "tool" for criminal law enforcement. In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In a number of cases, we had occasion to make available to a respondent in an administrative case or investigation certain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at the trial stage that had been advanced to an earlier stage in the proceedings, such as the right to counsel and the right against self-incrimination.^[24] (Citations omitted)

In contrast to the disposition in Lantion that the evaluation process before the Department of Foreign Affairs is akin to an administrative agency conducting investigative proceedings with implications on the consequences of criminal liability, i.e., deprivation of liberty of a prospective extraditee, the sole investigative functions of the AMLC finds more resonance with the investigative functions of the National Bureau of Investigation (NBI).
That the AMLC does not exercise quasi-judicial powers and is simply an investigatory body finds support in our ruling in Shu v. Dee.^[25] In that case, petitioner Shu had filed a complaint before the NBI charging respondents therein with falsification of two (2) deeds of real estate mortgage submitted to the Metropolitan Bank and Trust Company (Metrobank). After its investigation, the NBI came up with a Questioned Documents Report No. 746-1098 finding that the signatures of petitioner therein which appear on the questioned deeds are not the same as the standard sample signatures he submitted to the NBI. Ruling on the specific issue raised by respondent therein that they had been denied due process during the NBI investigation, we stressed that the functions of this agency are merely investigatory and informational in nature:

[The NBI] has no judicial or quasi-judicial powers and is incapable of granting any relief to any party. It cannot even determine probable cause. The NBI is an investigative agency whose findings are merely recommendatory. It undertakes investigation of crimes upon its own initiative or as public welfare may require in accordance with its mandate. It also renders assistance when requested in the investigation or detection of crimes in order to prosecute the persons responsible.
Since the NBI's findings were merely recommendatory, we find that no denial of the respondent's due process right could have taken place; the NBI's findings were still subject to the prosecutor's and the Secretary of Justice's actions for purposes of finding the existence of probable cause. We find it significant that the specimen signatures in the possession of Metrobank were submitted by the respondents for the consideration of the city prosecutor and eventually of the Secretary of Justice during the preliminary investigation proceedings. Thus, these officers had the opportunity to examine these signatures.
The respondents were not likewise denied their right to due process when the NBI issued the questioned documents report. We note that this report merely stated that the signatures appearing on the two deeds and in the petitioner's submitted sample signatures were not written by one and the same person. Notably, there was no categorical finding in the questioned documents report that the respondents falsified the documents. This report, too, was procured during the conduct of the NBI's investigation at the petitioner's request for assistance in the investigation of the alleged crime of falsification. The report is inconclusive and does not prevent the respondents from securing a separate documents examination by handwriting experts based on their own evidence. On its own, the NBI's questioned documents report does not directly point to the respondents' involvement in the crime charged. Its significance is that, taken together with the other pieces of evidence submitted by the parties during the preliminary investigation, these evidence could be sufficient for purposes of finding probable cause — the action that the Secretary of Justice undertook in the present case.

As carved out in Shu, the AMLC functions solely as an investigative body in the instances mentioned in Rule 5.b.^[26]Thereafter, the next step is for the AMLC to file a Complaint with either the DOJ or the Ombudsman pursuant to Rule 6.b.
Even in the case of Estrada v. Office of the Ombudsman,^[27] where the conflict arose at the preliminary investigation stage by the Ombudsman, we ruled that the Ombudsman's denial of Senator Estrada's Request to be furnished copies of the counter-affidavits of his co-respondents did not violate Estrada's constitutional right to due process where the sole issue is the existence of probable cause for the purpose of determining whether an information should be filed and does not prevent Estrada from requesting a copy of the counter-affidavits of his co-respondents during the pre-trial or even during trial. We expounded on the nature of preliminary investigation proceedings, thus:

It should be underscored that the conduct of a preliminary investigation is only for the determination of probable cause, and "probable cause merely implies probability of guilt and should be determined in a summary manner. A preliminary investigation is not a part of the trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence." Thus, the rights of a respondent in a preliminary investigation are limited to those granted by procedural law.

A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial. The quantum of evidence now required in preliminary investigation is such evidence sufficient to "engender a well founded belief' as to the fact of the commission of a crime and the respondent's probable guilt thereof A preliminary investigation is not the occasion for the full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. We are in accord with the state prosecutor's findings in the case at bar that there exists prima facie evidence of petitioner's involvement in the commission of the crime, it being sufficiently supported by the evidence presented and the facts obtaining therein.
Likewise devoid of cogency is petitioner's argument that the testimonies of Galarion and Hanopol are inadmissible as to him since he was not granted the opportunity of cross-examination.
It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be present but without the right to examine or cross-examine. Thus, even if petitioner was not given the opportunity to cross-examine Galarion and Hanopol at the time they were presented to testify during the separate trial of the case against Galarion and Roxas, he cannot assert any legal right to cross-examine them at the preliminary investigation precisely because such right was never available to him. The admissibility or inadmissibility of said testimonies should be ventilated before the trial court during the trial proper and not in the preliminary investigation.
Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction and control over the conduct of a preliminary investigation. If by its very nature a preliminary investigation could be waived by the accused, we find no compelling justification for a strict application of the evidentiary rules. In addition, considering that under Section 8, Rule 112 of the Rules of Court, the record of the preliminary investigation does not form part of the record of the case in the Regional Trial Court, then the testimonies of Galarion and Hanopol may not be admitted by the trial court if not presented in evidence by the prosecuting fiscal. And, even if the prosecution does present such testimonies, petitioner can always object thereto and the trial court can rule on the admissibility thereof; or the petitioner can, during the trial, petition said court to compel the presentation of Galarion and Hanopol for purposes of cross-examination. (Citations and emphasis omitted)

Plainly, the AMLC's investigation of money laundering offenses and its determination of possible money laundering offenses, specifically its inquiry into certain bank accounts allowed by court order, does not transform it into an investigative body exercising quasi-judicial powers. Hence, Section 11 of the AMLA, authorizing a bank inquiry court order, cannot be said to violate SPCMB's constitutional right to procedural due process.
We now come to a determination of whether Section 11 is violative of the constitutional right to privacy enshrined in Section 2, Article III of the Constitution. SPCMB is adamant that the CA's denial of its request to be furnished copies of AMLC's ex-parte application for a bank inquiry order and all subsequent pleadings, documents and orders filed and issued in relation thereto, constitutes grave abuse of discretion where the purported blanket authority under Section 11: (1) partakes of a general warrant intended to aid a mere fishing expedition; (2) violates the attorney-client privilege; (3) is not preceded by predicate crime charging SPCMB of a money laundering offense; and (4) is a form of political harassment [of SPCMB's] clientele.
We shall discuss these issues jointly since the assailed Section 11 incorporates by reference that "[t]he authority to inquire into or examine the main and the related accounts shall comply with the requirements of Article III, Sections 2 and 3 of the 1987 Constitution." On this point, SPCMB asseverates that "there is nothing in the AMLA that allows or justifies the withholding of information and/or any court records or proceedings pertaining to an examination of a bank account, especially if the court has already granted the authority to conduct the examination."
The theme of playing off privacy rights and interest against that of the state's interest in curbing money laundering offenses is recurring.^[28]
The invoked constitutional provisions read:

SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the person or things to be seized.
SEC. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public policy or order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Once again, Eugenio^[29] offers guidance:

The Court's construction of Section 11 of the AMLA is undoubtedly influenced by right to privacy considerations. If sustained, petitioner's argument that a bank account may be inspected by the government following an ex parte proceeding about which the depositor would know nothing would have significant implications on the right to privacy, a right innately cherished by all notwithstanding the legally recognized exceptions thereto. The notion that the government could be so empowered is cause for concern of any individual who values the right to privacy which, after all, embodies even the right to be "let alone," the most comprehensive of rights and the right most valued by civilized people.
One might assume that the constitutional dimension of the right to privacy, as applied to bank deposits, warrants our present inquiry. We decline to do so. Admittedly, that question has proved controversial in American jurisprudence. Notably, the United States Supreme Court in U.S. v. Miller held that there was no legitimate expectation of privacy as to the bank records of a depositor. Moreover, the text of our Constitution has not bothered with the triviality of allocating specific rights peculiar to bank deposits.
However, sufficient for our purposes, we can assert there is a right to privacy governing bank accounts in the Philippines, and that such right finds application to the case at bar. The source of such right is statutory, expressed as it is in R.A. No. 1405 otherwise known as the Bank Secrecy Act of 1955. The right to privacy is enshrined in Section 2 of that law, to wit:

SECTION 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation.

Because of the Bank Secrecy Act, the confidentiality of bank deposits remains a basic state policy in the Philippines. Subsequent laws, including the AMLA, may have added exceptions to the Bank Secrecy Act, yet the secrecy of bank deposits still lies as the general rule. It falls within the zones of privacy recognized by our laws. The framers of the 1987 Constitution likewise recognized that bank accounts are not covered by either the right to information under Section 7, Article III or under the requirement of full public disclosure under Section 28, Article II. Unless the Bank Secrecy Act is repealed or amended, the legal order is obliged to conserve the absolutely confidential nature of Philippine bank deposits.
Any exception to the rule of absolute confidentiality must be specifically legislated. Section 2 of the Bank Secrecy Act itself prescribes exceptions whereby these bank accounts may be examined by "any person, government official, bureau or office"; namely when: (1) upon written permission of the depositor; (2) in cases of impeachment; (3) the examination of bank accounts is upon order of a competent court in cases of bribery or dereliction of duty of public officials; and (4) the money deposited or invested is the subject matter of the litigation. Section 8 of R.A. Act No. 3019, the Anti-Graft and Corrupt Practices Act, has been recognized by this Court as constituting an additional exception to the rule of absolute confidentiality, and there have been other similar recognitions as well.
The AMLA also provides exceptions to the Bank Secrecy Act. Under Section 11, the AMLC may inquire into a bank account upon order of any competent court in cases of violation of the AMLA, it having been established that there is probable cause that the deposits or investments are related to unlawful activities as defined in Section 3(i) of the law, or a money laundering offense under Section 4 thereof. Further, in instances where there is probable cause that the deposits or investments are related to kidnapping for ransom, certain violations of the Comprehensive Dangerous Drugs Act of 2002, hijacking and other violations under R.A. No. 6235, destructive arson and murder, then there is no need for the AMLC to obtain a court order before it could inquire into such accounts.
It cannot be successfully argued the proceedings relating to the bank inquiry order under Section 11 of the AMLA is a "litigation" encompassed in one of the exceptions to the Bank Secrecy Act which is when "the money deposited or invested is the subject matter of the litigation." The orientation of the bank inquiry order is simply to serve as a provisional relief or remedy. As earlier stated, the application for such does not entail a full-blown trial.
Nevertheless, just because the AMLA establishes additional exceptions to the Bank Secrecy Act it does not mean that the later law has dispensed with the general principle established in the older law that "[a]ll deposits of whatever nature with banks or banking institutions in the Philippines x x x are hereby considered as of an absolutely confidential nature." Indeed, by force of statute, all bank deposits are absolutely confidential, and that nature is unaltered even by the legislated exceptions referred to above. There is disfavor towards construing these exceptions in such a manner that would authorize unlimited discretion on the part of the government or of any party seeking to enforce those exceptions and inquire into bank deposits. If there are doubts in upholding the absolutely confidential nature of bank deposits against affirming the authority to inquire into such accounts, then such doubts must be resolved in favor of the former. Such a stance would persist unless Congress passes a law reversing the general state policy of preserving the absolutely confidential nature of Philippine bank accounts. (Citations omitted, emphasis supplied)

From the foregoing disquisition, we extract the following principles:
1. The Constitution did not allocate specific rights peculiar to bank deposits;
2. The general rule of absolute confidentiality is simply statutory,^[30] i.e. not specified in the Constitution, which has been affirmed in jurisprudence;^[31]
3. Exceptions to the general rule of absolute confidentiality have been carved out by the Legislature which legislation have been sustained, albeit subjected to heightened scrutiny by the courts;^[32] and
4. One such legislated exception is Section 11 of the AMLA.
The warning in Eugenio that an ex-parte proceeding authorizing the government to inspect certain bank accounts or investments without notice to the depositor would have significant implications on the right to privacy still does not preclude such a bank inquiry order to be allowed by specific legislation as an exception to the general rule of absolute confidentiality of bank deposits.
We thus subjected Section 11 of the AMLA to heightened scrutiny and found nothing arbitrary in the allowance and authorization to AMLC to undertake an inquiry into certain bank accounts or deposits. Instead, we found that it provides safeguards before a bank inquiry order is issued, ensuring adherence to the general state policy of preserving the absolutely confidential nature of Philippine bank accounts:
(1) The AMLC is required to establish probable cause as basis for its ex-parte application for bank inquiry order;
(2) The CA, independent of the AMLC's demonstration of probable cause, itself makes a finding of probable cause that the deposits or investments are related to an unlawful activity under Section 3(i) or a money laundering offense under Section 4 of the AMLA;
(3) A bank inquiry court order ex-parte for related accounts is preceded by a bank inquiry court order ex-parte for the principal account which court order ex-parte for related accounts is separately based on probable cause that such related account is materially linked to the principal account inquired into; and
(4) The authority to inquire into or examine the main or principal account and the related accounts shall comply with the requirements of Article III, Sections 2 and 3 of the Constitution.
The foregoing demonstrates that the inquiry and examination into the bank account are not undertaken whimsically and solely based on the investigative discretion of the AMLC. In particular, the requirement of demonstration by the AMLC, and determination by the CA, of probable cause emphasizes the limits of such governmental action. We will revert to these safeguards under Section 11 as we specifically discuss the CA's denial of SPCMB's letter request for information concerning the purported issuance of a bank inquiry order involving its accounts.
First. The AMLC and the appellate court are respectively required to demonstrate and ascertain probable cause. Ret. Lt. Gen. Ligot, et al. v. Republic of the Philippines,^[33] which dealt with the adjunct provisional remedy of freeze order under Section 10 of the AMLA, defined probable cause, thus:

The probable cause required for the issuance of a freeze order differs from the probable cause required for the institution of a criminal action, xxx.
As defined in the law, the probable cause required for the issuance of a freeze order refers to "such facts and circumstances which would lead a reasonably discreet, prudent or cautious man to believe that an unlawful activity and/or money laundering offence is about to be, is being or has been committed and that the account or any monetary instrument or property subject thereof sought to be frozen is in any way related to said unlawful activity and/or money laundering offense."
In other words, in resolving the issue of whether probable cause exits, the CA's statutorily-guided determination's focus is not on the probable commissions of an unlawful activity (or money laundering) that the office of the Ombudsman has already determined to exist, but on whether the bank accounts, assets, or other monetary instruments sought to be frozen are in any way related to any of the illegal activities enumerated under R.A. 9160, as amended. Otherwise stated, probable cause refers to the sufficiency of the relation between an unlawful activity and the property or monetary instrument which is the focal point of Section 10 of RA No. 9160, as amended. xxx. (Emphasis supplied)

Second. As regards SPCMB's contention that the bank inquiry order is in the nature of a general warrant, Eugenioalready declared that Section 11, even with the allowance of an ex parte application therefor, "is not a search warrant or warrant of arrest as it contemplates a direct object but not the seizure of persons or property."^[34] It bears repeating that the ''bank inquiry order" under Section 11 is a provisional remedy to aid the AMLC in the enforcement of the AMLA.
Third. Contrary to the stance of SPCMB, the bank inquiry order does not contemplate that SPCMB be first impleaded in a money laundering case already filed before the courts:

We are unconvinced by this proposition, and agree instead with the then Solicitor General who conceded that the use of the phrase "in cases of' was unfortunate, yet submitted that it should be interpreted to mean "in the event there are violations" of the AMLA, and not that there are already cases pending in court concerning such violations. If the contrary position is adopted, then the bank inquiry order would be limited in purpose as a tool in aid of litigation of live cases, and wholly inutile as a means for the government to ascertain whether there is sufficient evidence to sustain an intended prosecution of the account holder for violation of the AMLA. Should that be the situation, in all likelihood the AMLC would be virtually deprived of its character as a discovery tool, and thus would become less circumspect in filing complaints against suspect account holders. After all, under such set-up the preferred strategy would be to allow or even encourage the indiscriminate filing of complaints under the AMLA with the hope or expectation that the evidence of money laundering would somehow .surface during the trial. Since the AMLC could not make use of the bank inquiry order to determine whether there is evidentiary basis to prosecute the suspected malefactors, not filing any case at all would not be an alternative. Such unwholesome set-up should not come to pass. Thus Section 11 cannot be interpreted in a way that would emasculate the remedy it has established and encourage the unfounded initiation of complaints for money laundering.^[35] (Citation omitted)

Guided as we are by prior holdings, and bound as we are by the requirements for issuance of a bank inquiry order under Section 11 of the AMLA, we are hard pressed to declare that it violates SPCMB's right to privacy.
Nonetheless, although the bank inquiry order ex-parte passes constitutional muster, there is nothing in Section 11 nor the implementing rules and regulations of the AMLA which prohibits the owner of the bank account, as in his instance SPCMB, to ascertain from the CA, post issuance of the bank inquiry order ex-parte, if his account is indeed the subject of an examination. Emphasized by our discussion of the safeguards under Section 11 preceding the issuance of such an order, we find that there is nothing therein which precludes the owner of the account from challenging the basis for the issuance thereof.
The present controversy revolves around the issue of whether or not the appellate court, through the Presiding Justice, gravely abused its discretion when it effectively denied SPCMB's letter-request for confirmation that the AMLC had applied (ex-parte) for, and was granted, a bank inquiry order to examine SPCMB's bank accounts relative to the investigation conducted on Vice-President Binay's accounts.
We recall the Presiding Justice's letter to SPCMB categorically stating that "under the rules, the Office of the Presiding Justice is strictly mandated not to disclose, divulge, or communicate to anyone directly or indirectly, in any manner or by any means, the fact of the filing of the petition brought before [the Court of Appeals] by the [AMLC], its contents and even its entry in the logbook." Note that the letter did not cite the aforementioned rules that were supposedly crystal clear to foreclose ambiguity. Note further that Rules 10.c.3 and 10.d of the IRR on Authority to File Petitions for Freeze Order provides that:

Rule 10.c. Duty of Covered Institutions upon receipt thereof. —
Rule 10.c.1. Upon receipt of the notice of the freeze order, the covered institution concerned shall immediately freeze the monetary instrument or property and related accounts subject thereof.
Rule 10.c.2. The covered institution shall likewise immediately furnish a copy of the notice of the freeze order upon the owner or holder of the monetary instrument or property or related accounts subject thereof.
Rule 10.c.3. Within twenty-four (24) hours from receipt of the freeze order, the covered institution concerned shall submit to the Court of Appeals and the AMLC, by personal delivery, a detailed written return on the freeze order, specifying all the pertinent and relevant information which shall include the following:

(a) the account numbers;
(b) the names of the account owners or holders;
(c) the amount of the monetary instrument, property or related accounts as of the time they were frozen;
(d) all relevant information as to the nature of the monetary instrument or property;
(e) any information on the related accounts pertaining to the monetary instrument or property subject of the freeze order; and
(f) the time when the freeze thereon took effect.

Rule 10.d. Upon receipt of the freeze order issued by the Court of Appeals and upon verification by the covered institution that the related accounts originated from and/or are materially linked to the monetary instrument or property subject of the freeze order, the covered institution shall freeze these related accounts wherever these may be found.
The return of the covered institution as required under Rule 10.c.3 shall include the fact of such freezing and an explanation as to the grounds for the identification of the related accounts.
If the related accounts cannot be determined within twenty-four (24) hours from receipt of the freeze order due to the volume and/or complexity of the transactions or any other justifiable factor(s), the covered institution shall effect the freezing of the related accounts, monetary instruments and properties as soon as practicable and shall submit a supplemental return thereof to the Court of Appeals and the AMLC within twenty-four (24) hours from the freezing of said related accounts, monetary instruments and properties.

The foregoing rule, in relation to what Section 11 already provides, signifies that ex-parte bank inquiry orders on related accounts may be questioned alongside, albeit subsequent to, the issuance of the initial freeze order of the subject bank accounts. The requirements and procedure for the issuance of the order, including the return to be made thereon lay the grounds for judicial review thereof. We expound.
An act of a court or tribunal can only be considered tainted with grave abuse of discretion when such act is done in a capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. It is well-settled that the abuse of discretion to be qualified as "grave" must be so patent or gross as to constitute an evasion of a positive duty or a virtual refusal to perform the duty or to act at all in contemplation of law.^[36] In this relation, case law states that not every error in the proceedings, or every erroneous conclusion of law or fact, constitutes grave abuse of discretion.^[37] The degree of gravity, as above-described, must be met.
That the propriety of the issuance of the bank inquiry order is a justiciable issue brooks no argument. A justiciable controversy refers to an existing case or controversy that is appropriate or ripe for judicial determination, not one that is conjectural or merely anticipatory.^[38]
As previously adverted to in our discussion on the right to privacy, the clash of privacy rights and interest against that of the government's is readily apparent. However, the statutorily enshrined general rule on absolute confidentiality of bank accounts remains. Thus, the safeguards instituted in Section II of the AMLA and heretofore discussed provide for certain well­ defined limits, as in the language of Baker v. Carr, "judicially discoverable standards" for determining the validity of the exercise of such discretion by the appellate court in denying the letter-request of SPCMB.^[39] In short, Section II itself provides the basis for the judicial inquiry and which the owner of the bank accounts subject of the AMLC inquiry may invoke.
Undeniably, there is probable and preliminary governmental action against SPCMB geared towards implementation of the AMLA directed at SPCMB's property, although there is none, as yet, physical seizure thereof, as in freezing of bank accounts under Section 10 of the AMLA.^[40] Note, however, that the allowance to question the bank inquiry order we carve herein is tied to the appellate court's issuance of a freeze order on the principal accounts. Even in Eugenio, while declaring that the bank inquiry order under Section II then required prior notice of such to the account owner, we recognized that the determination of probable cause by the appellate court to issue the bank inquiry order can be contested. As presently worded and how AMLC functions are designed under the AMLA, the occasion for the issuance of the freeze order upon the actual physical seizure of the investigated and inquired into bank account, calls into motions the opportunity for the bank account owner to then question, not just probable cause for the issuance of the freeze order under Section I 0, but, to begin with, the determination of probable cause for an ex-parte bank inquiry order into a purported related account under Section II.
In enacting the amendment to Section II of the AMLC, the legislature saw it fit to place requirements before a bank inquiry order may be issued. We discussed these requirements as basis for a valid exception to the general rule on absolute confidentiality of bank accounts. However, these very safe guards allow SPCMB, post issuance of the ex-parte bank inquiry order, legal bases to question the propriety of such issued order, if any. To emphasize, this allowance to the owner of the bank account to question the bank inquiry order is granted only after issuance of the freeze order physically seizing the subject bank account. It cannot be undertaken prior to the issuance of the freeze order.
While no grave abuse of discretion could be ascribed on the part of the appellate court when it explained in its letter that petitions of such nature "is strictly confidential in that when processing the same, not even the handling staff members of the Office of the Presiding Justice know or have any knowledge who the subject bank account holders are, as well as the bank accounts involved," it was incorrect when it declared that "under the rules, the Office of the Presiding Justice is strictly mandated not to disclose, divulge, or communicate to anyone directly or indirectly, in any manner or by any means, the fact of the filing of any petition brought before [the Court of Appeals] by the Anti-Money Laundering Council, its contents and even its entry in the logbook." As a result, the appellate court effectively precluded and prevented SPCMB of any recourse, amounting to a denial of SPCMB's letter request.
We cannot overemphasize that SPCMB, as the owner of the bank account which may be the subject of inquiry of the AMLC, ought to have a legal remedy to question the validity and propriety of such an order by the appellate court under Section 11 of the AMLA even if subsequent to the issuance of a freeze order. Moreover, given the scope of inquiry of the AMLC, reaching and including even related accounts, which inquiry into specifies a proviso that: "[t]hat the procedure for the ex-parte application of the ex-parte court order for the principal account shall be the same with that of the related accounts," SPCMB should be allowed to question the government intrusion. Plainly, by implication, SPCMB can demonstrate the absence of probable cause, i.e. that it is not a related account nor are its accounts materially linked to the principal account being investigated.^[41]
In BSB Group, Inc. v. Go,^[42] we recounted the objective of the absolute confidentiality rule which is protection from unwarranted inquiry or investigation if the purpose of such inquiry or investigation is merely to determine the existence and nature, as well as the amount of the deposit in any given bank account:

xxx. There is, in fact, much disfavor to construing these primary and supplemental exceptions in a manner that would authorize unbridled discretion, whether governmental or otherwise, in utilizing these exceptions as authority for unwarranted inquiry into bank accounts. It is then perceivable that the present legal order is obliged to conserve the absolutely confidential nature of bank deposits.
The measure of protection afforded by the law has been explained in China Banking Corporation v. Ortega. That case principally addressed the issue of whether the prohibition against an examination of bank deposits precludes garnishment in satisfaction of a judgment. Ruling on that issue in the negative, the Court found guidance in the relevant portions of the legislative deliberations on Senate Bill No. 351 and House Bill No. 3977, which later became the Bank Secrecy Act, and it held that the absolute confidentiality rule in R.A. No. 1405 actually aims at protection from unwarranted inquiry or investigation if the purpose of such inquiry or investigation is merely to determine the existence and nature, as well as the amount of the deposit in any given bank account. Thus,

x x x The lower court did not order an examination of or inquiry into the deposit of B&B Forest Development Corporation, as contemplated in the law. It merely required Tan Kim Liong to inform the court whether or not the defendant B&B Forest Development Corporation had a deposit in the China Banking Corporation only for purposes of the garnishment issued by it, so that the bank would hold the same intact and not allow any withdrawal until further order. It will be noted from the discussion of the conference committee report on Senate Bill No. 351 and House Bill No. 3977 which later became Republic Act No. 1405, that it was not the intention of the lawmakers to place banks deposits beyond the reach of execution to satisfy a final judgment Thus:

x x x Mr. Marcos: Now, for purposes of the record, I should like the Chairman of the Committee on Ways and Means to clarify this further. Suppose an individual has a tax case. He is being held liable by the Bureau of Internal Revenue [(BIR)] or, say, P1,000.00 worth of tax liability, and because of this the deposit of this individual [has been] attached by the [BIR].
Mr. Ramos: The attachment will only apply after the court has pronounced sentence declaring the liability of such person. But where the primary aim is to determine whether he has a bank deposit in order to bring about a proper assessment by the [BIR], such inquiry is not allowed by this proposed law.
Mr. Marcos: But under our rules of procedure and under the Civil Code, the attachment or garnishment of money deposited is allowed. Let us assume for instance that there is a preliminary attachment which is for garnishment or for holding liable all moneys deposited belonging to a certain individual, but such attachment or garnishment will bring out into the open the value of such deposit. Is that prohibited by... the law?
Mr. Ramos: It is only prohibited to the extent that the inquiry... is made only for the purpose of satisfying a tax liability already declared for the protection of the right in favor of the government; but when the object is merely to inquire whether he has a deposit or not for purposes of taxation, then this is fully covered by the law. x x x
Mr. Marcos: The law prohibits a mere investigation into the existence and the amount of the deposit.
Mr. Ramos: Into the very nature of such deposit. x x x (Citations omitted)

What is reflected by the foregoing disquisition is that the law plainly prohibits a mere investigation into the existence and the amount of the deposit. We relate the principle to SPCMB's relationship to the reported principal account under investigation, one of its clients, former Vice­ President Binay. SPCMB as the owner of one of the bank accounts reported to be investigated by the AMLC for probable money laundering offenses should be allowed to pursue remedies therefrom where there are legal implications on the inquiry into its accounts as a law firm. While we do not lapse into conjecture and cannot take up the lance for SPCMB on probable violation of the attorney-client privilege based on pure speculation, the extent of information obtained by the AMLC concerning the clients of SPCMB has not been fully drawn and sufficiently demonstrated. At the same time, the owner of bank accounts that could be potentially affected has the right to challenge whether the requirements for issuance of the bank inquiry order were indeed complied with given that such has implications on its property rights. In this regard, SPCMB's obeisance to promulgated rules on the matter could have afforded it a remedy, even post issuance of the bank inquiry order.
Rule 10.b. of the IRR defines probable cause as "such facts and circumstances which would lead a reasonably discreet, prudent or cautious man to believe that an unlawful activity and/or a money laundering offense is about to be, is being or has been committed and that the account or any monetary instrument or property sought to be frozen is in any way related to said unlawful activity and/or money laundering offense." Evidently, the provision only refers to probable cause for freeze orders under Section 10 of the AMLA. From this we note that there is a glaringlacunae in our procedural rules concerning the bank inquiry order under Section 11. Despite the advent of RA No. 10167, amending Section 11 of the AMLA, we have yet to draft additional rules corresponding to the ex-parte bank inquiry order under Section 11. A.M. No. 05-11-04-SC entitled "Rule of Procedure in Cases of Civil Forfeiture, Asset Preservation, and Freezing of Monetary Instrument, Property, or Proceeds Representing, Involving, or Relating to an Unlawful Activity or Money Laundering Offense Under Republic Act No. 9160, as Amended," only covers what is already provided in the title. As we have already noted, the bank inquiry order must likewise be governed by rules specific to its issuance where the AMLC regularly invokes this provision and which, expectedly clashes with the rights of bank account holders.
Apart from Section 2, Rule IV of the 2009 Internal Rules of the CA (IRCA) reads:

SEC. 2. Action by the Presiding Justice or Executive Justice. — When a petition involves an urgent matter, such as an application for writ of habeas corpus, amparo or habeas data or for temporary restraining order, and there is no way of convening the Raffle Committee or calling any of its members, the Presiding Justice or the Executive Justice, as the case may be, or in his/her absence, the most senior Justice present, may conduct the raffle or act on the petition, subject to raffle in the latter case on the next working day in accordance with Rule III hereof.
(AMLA cases are limited to the first three most senior Justices as stated in the law and are raffled by the Chairmen of the First, Second and Third Divisions to the members of their Divisions only.)

Nothing in the IRCA justifies the disallowance to SPCMB of information and/or court records or proceedings pertaining to the possible bank inquiry order covering its bank deposits or investment.
We note that the Presiding Justice's reply to the request for comment of SPCMB on the existence of a petition for bank inquiry order by the AMLC covering the latter's account only contemplates the provisions of Section 10 of the AMLA, its IRR and the promulgated rules thereon. Such immediate and definitive foreclosure left SPCMB with no recourse on how to proceed from what it perceived to be violation of its rights as owner of the bank account examined. The reply of the Presiding Justice failed to take into consideration Section 54 of A.M. No. 05-11-04-SC on Notice of Freeze Order which reads:

SEC. 54. Notice of freeze order.- The Court shall order that notice of the freeze order be served personally, in the same manner provided for the service of the asset preservation order in Section 14 of this Rule, upon the respondent or any person acting in his behalf and such covered institution or government agency. The court shall notify also such party in interest as may have appeared before the court. (Emphasis supplied)

We relate this Section 54 to the already cited Rule 10.d of the IRR

Rule 10.d. Upon receipt of the freeze order issued by the Court of Appeals and upon verification by the covered institution that the related accounts originated from and/or are materially linked to the monetary instrument or property subject of the freeze order, the covered institution shall freeze these related accounts wherever these may be found.
The return of the covered institution as required under Rule 10.c.3 shall include the fact of such freezing and an explanation as to the grounds for the identification of the related accounts.
If the related accounts cannot be determined within twenty-­four (24) hours from receipt of the freeze order due to the volume and/or complexity of the transactions or any other justifiable factor(s), the covered institution shall effect the freezing of the related accounts, monetary instruments and properties as soon as practicable and shall submit a supplemental return thereof to the Court of Appeals and the AMLC within twenty-four (24) hours from the freezing of said related accounts, monetary instruments and properties. (Emphasis supplied)

demonstrating that the return of the Freeze Order must provide an explanation as to the grounds for the identification of the related accounts, or the requirement of notice to a party in interest affected thereby whose bank accounts were examined. This necessarily contemplates the procedure for a prior bank inquiry order which we ought to provide for.
For exact reference, we cite A.M. No. 05-11-04-SC, Title VIII on Petitions for Freeze Order in the CA which certain pertinent provisions we adopt and apply suppletorily as a separate Title on Petitions for Bank Inquiry Order:

TITLE VIII
PETITIONS FOR FREEZE ORDER IN THE COURT OF APPEALS

SEC. 43. Applicability. - This Rule shall apply to petitions for freeze order in the Court of Appeals. The 2002 Internal Rules of the Court of Appeals, as amended, shall apply suppletorily in all other aspects.
xxxx
SEC. 46. Contents of the petition. - The petition shall contain the following allegations:

(a)	The name and address of the respondent;
(b)	A specific description with particularity of the monetary instrument, property or proceeds, their location, the name of the owner, holder, lienholder or possessor, if known;
(c)	The grounds relied upon for the issuance of a freeze order; and
(d)	The supporting evidence showing that the subject monetary instrument, property, or proceeds are in any way related to or involved in an unlawful activity as defined under Section 3(i) of Republic Act No. 9160, as amended by Republic Act No. 9194. The petition shall be filed in seven clearly legible copies and shall be accompanied by clearly legible copies of supporting documents duly subscribed under oath.

xxxx
SEC. 49. Confidentiality; prohibited disclosure. - The logbook and the entries therein shall be kept strictly confidential and maintained under the responsibility of the Presiding Justice or the Executive Justices, as the case may be. No person, including Court personnel, shall disclose, divulge or communicate to anyone directly or indirectly, in any manner or by any means, the fact of the filing of the petition for freeze order, its contents and its entry in the logbook except to those authorized by the Court. Violation shall constitute contempt of court.
xxxx
SEC. 51. Action by the Court of Appeals.- All members of the Division of the Court to which the assigned justice belongs shall act on the petition within twenty-four hours after its filing. However, if one member of the Division is not available, the assigned justice and the other justice present shall act on the petition. If only the assigned justice is present, he shall act alone. The action of the two justices or of the assigned justice alone, as the case may be, shall be forthwith promulgated and thereafter submitted on the next working day to the absent member or members of the Division for ratification, modification or recall.
If the Court is satisfied from the verified allegations of the petition that there exists probable cause that the monetary instrument, property, or proceeds are in any way related to or involved in any unlawful activity as defined in Section 3(i) of Republic Act No. 9160, as amended by Republic Act No. 9194, it shall issue ex parte a freeze order as hereinafter provided.
If the Court finds no substantial merit in the petition, it shall dismiss the petition outright, stating the specific reasons for such dismissal.
When the unanimous vote of the three justices of the Division cannot be obtained, the Presiding Justice or the Executive Justice shall designate two justices by raffle from among the other justices of the first three divisions to sit temporarily with them forming a special division of five justices. The concurrence of a majority of such special division shall be required for the pronouncement of a judgment or resolution.
SEC. 52. Issuance, form and contents of the freeze order - The freeze order shall:

(a)	issue in the name of the Republic of the Philippines represented by the Anti-Money Laundering Council;
(b)	describe with particularity the monetary instrument, property or proceeds frozen, as well as the names of their owner or owners; and
(c)	direct the person or covered institution to immediately freeze the subject monetary instrument, property or proceeds or its related web of accounts.

SEC. 53. Freeze order.

(a)	Effectivity; post issuance hearing. - The freeze order shall be effective immediately for a period of twenty days. Within the twenty-day period, the court shall conduct a summary hearing, with notice to the parties, to determine whether or not to modify or lift the freeze order, or extend its effectivity as hereinafter provided.
(b)	Extension. - On motion of the petitioner filed before the expiration of twenty days from issuance of a freeze order, the court may for good cause extend its effectivity for a period not exceeding six months.

SEC. 54. Notice of freeze order.- The Court shall order that notice of the freeze order be served personally, in the same manner provided for the service of the asset preservation order in Section 14 of this Rule, upon the respondent or any person acting in his behalf and such covered institution or government agency. The court shall notify also such party in interest as may have appeared before the court.
SEC. 55. Duty of respondent, covered institution or government agency upon receipt of freeze order. - Upon receipt of a copy of the freeze order, the respondent, covered institution or government agency shall immediately desist from and not allow any transaction, withdrawal, deposit, transfer, removal, conversion, other movement or concealment the account representing, involving or relating to the subject monetary instrument, property, proceeds or its related web of accounts.
SEC. 56. Consolidation with the pending civil forfeiture proceedings - After the post-issuance hearing required in Section 53, the Court shall forthwith remand the case and transmit the records to the regional trial court for consolidation with the pending civil forfeiture proceeding.
SEC. 57. Appeal.- Any party aggrieved by the decision or ruling of the court may appeal to the Supreme Court by petition for review on certiorari under Rule 45 of the Rules of Court. The appeal shall not stay the enforcement of the subject decision or final order unless the Supreme Court directs otherwise.

A reverse situation affords us a clearer picture of the arbitrary and total preclusion of SPCMB to question the bank inquiry order of the appellate court. In particular, in an occasion where the appellate court denies the AMLC's ex-parte application for a bank inquiry order under Section 11, the AMLC can question this denial and assail such an order by the appellate court before us on grave abuse of discretion. Among others, the AMLC can demonstrate that it has established probable cause for its issuance, or if the situation contemplates a denial of an application for a bank inquiry order into a related account, the AMLC can establish that the account targeted is indeed a related account. The resolution on these factual and legal issues ought to be reviewable, albeit post issuance of the Freeze Order, akin to the provision of an Appeal to the Supreme Court under Section 57 of A.M. No. 05-11-04-SC.
Palpably, the requirement to establish probable cause is not a useless supposition. To establish and demonstrate the required probable cause before issuance of the bank inquiry and the freeze orders is a screw on which the AMLC's intrusive functions turns. We are hard pressed to justify a disallowance to an aggrieved owner of a bank account to avail of remedies.
That there are no specific rules governing the bank inquiry order does not signify that the CA cannot confirm to the actual owner of the bank account reportedly being investigated whether it had in fact issued a bank inquiry order for covering its accounts, of course after the issuance of the Freeze Order. Even in Ligot,^[43] we held that by implication, where the law did not specify, the owner of the "frozen" property may move to lift the freeze order issued under Section 10 of the AMLA if he can show that no probable cause exists or the 20-day period of the freeze order has already lapsed without any extension being requested from and granted by the CA. Drawing a parallel, such a showing of the absence of probable cause ought to be afforded SPCMB.
Ligot clarifies that "probable cause refers to the sufficiency of the relation between an unlawful activity and the property or monetary instrument which is the focal point of Section 10 of the AMLA, as amended." This same probable cause is likewise the focal point in a bank inquiry order to further determine whether the account under investigation is linked to unlawful activities and/or money laundering offense. Thus, the specific applicability of Sections 52, 53, 54 and 57 Title VIII of A.M. No. 05-11-04-SC covering the following: (1) Issuance, Form and Content of the Freeze Order; (2) Effectivity of the Freeze Order and Post Issuance Hearing thereon; (3) Notice of the Freeze Order; and (4) Appeal from the Freeze Order as separate Rules for Petitions to Question the Bank Inquiry Order. And as held in Eugenio which now applies to the present Section 11 of the AMLA:

Although oriented towards different purposes, the freeze order under Section 10 and the bank inquiry order under Section 11 are similar in that they are extraordinary provisional reliefs which the AMLC may avail of to effectively combat and prosecute money laundering offenses. Crucially, Section 10 uses specific language to authorize an ex parte application for the provisional relief therein, a circumstance absent in Section 11. xxx.^[44]

The cited rules cover and approximate the distinction made by Eugenio in declaring that the bank inquiry order is not a search warrant, and yet there are instituted requirements for the issuance of these orders given that such is now allowed ex-parte:

The Constitution and the Rules of Court prescribe particular requirements attaching to search warrants that are not imposed by the AMLA with respect to bank inquiry orders. A constitutional warrant requires that the judge personally examine under oath or affirmation the complainant and the witnesses he may produce, such examination being in the form of searching questions and answers. Those are impositions which the legislative did not specifically prescribe as to the bank inquiry order under the AMLA and we cannot find sufficient legal basis to apply them to Section 11 of the AMLA. Simply put, a bank inquiry order is not a search warrant or warrant of arrest as it contemplates a direct object but not the seizure of persons or property.
Even as the Constitution and the Rules of Court impose a high procedural standard for the determination of probable cause for the issuance of search warrants which Congress chose not to prescribe for the bank inquiry order under the AMLA, Congress nonetheless disallowed ex parte applications for the inquiry order. We can discern that in exchange for these procedural standards normally applied to search warrants, Congress chose instead to legislate a right to notice and a right to be heard — characteristics of judicial proceedings which are not ex parte. Absent any demonstrable constitutional infirmity, there is no reason for us to dispute such legislative policy choices.^[45]

Thus, as an ex-parte bank inquiry order which Congress has now specifically allowed, the owner of a bank account post issuance of the freeze order has an opportunity under the Rules to contest the establishment of probable cause.
Again, we cannot avoid the requirement-limitation nexus in Section 11. As it affords the government authority to pursue a legitimate state interest to investigate money laundering offenses, such likewise provides the limits for the authority given. Moreover, allowance to the owner of the bank account, post issuance of the bank inquiry order and the corresponding freeze order, of remedies to question the order, will not forestall and waylay the government's pursuit of money launderers. That the bank inquiry order is a separate from the freeze order does not denote that it cannot be questioned. The opportunity is still rife for the owner of a bank account to question the basis for its very inclusion into the investigation and the corresponding freezing of its account in the process.
As noted in Eugenio, such an allowance accorded the account holder who wants to contest the issuance of the order and the actual investigation by the AMLC, does not cast an unreasonable burden since the bank inquiry order has already been issued. Further, allowing for notice to the account holder should not, in any way, compromise the integrity of the bank records subject of the inquiry which remain in the possession and control of the bank. The account holder so notified remains unable to do anything to conceal or cleanse his bank account records of suspicious or anomalous transactions, at least not without the whole hearted cooperation of the bank, which inherently has no vested interest to aid the account holder in such manner. Rule 10.c.^[46] of the IRR provides for Duty of the Covered Institution receiving the Freeze Order. Such can likewise be made applicable to covered institutions notified of a bank inquiry order.
On the other hand, a scenario where SPCMB or any account holder under examination later shows that the bank inquiry order was without the required probable cause, the information obtained through the account reverts to, and maintains, its confidentiality. In short, any and all information obtained therein by the AMLC remains confidential, as if no examination or inquiry on the bank account or investments was undertaken. The foregoing consequence can be added as a Section in the Rules entitled "Effect of absence of probable cause."
All told, we affirm the constitutionality of Section 11 of the AMLA allowing the ex-parte application by the AMLC for authority to inquire into, and examine, certain bank deposits and investments.
Section 11 of the AMLA providing for the ex-parte bank deposit inquiry is constitutionally firm for the reasons already discussed. The ex-­parte inquiry shall be upon probable cause that the deposits or investments are related to an unlawful activity as defined in Section 3(i) of the law or a money laundering offense under Section 4 of the same law. To effect the limit on the ex-parte inquiry, the petition under oath for authority to inquire, must, akin to the requirement of a petition for freeze order enumerated in Title VIII of A.M. No. 05-11-04-SC, contain the name and address of the respondent; the grounds relied upon for the issuance of the order of inquiry; and the supporting evidence that the subject bank deposit are in any way related to or involved in an unlawful activity.
If the CA finds no substantial merit in the petition, it shall dismiss the petition outright stating the specific reasons for such denial. If found meritorious and there is a subsequent petition for freeze order, the proceedings shall be governed by the existing Rules on Petitions for Freeze Order in the CA. From the issuance of a freeze order, the party aggrieved by the ruling of the court may appeal to the Supreme Court by petition for review on certiorari under Rule 45 of the Rules of Court raising all pertinent questions of law and issues, including the propriety of the issuance of a bank inquiry order. The appeal shall not stay the enforcement of the subject decision or final order unless the Supreme Court directs otherwise. The CA is directed to draft rules based on the foregoing discussions to complement the existing A.M. No. 05-11-04-SC Rule of Procedure in Cases of  Civil Forfeiture, Asset Preservation, and Freezing of Monetary Instrument, Property, or Proceeds Representing, Involving, or Relating to an Unlawful Activity or Money Laundering Offense under Republic Act No. 9160, as Amended for submission to the Committee on the Revision of the Rules of Court and eventual approval and promulgation of the Court en banc.
WHEREFORE, the petition is DENIED. Section 11 of Republic Act No. 9160, as amended, is declared VALID and CONSTITUTIONAL.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Bersamin, Del Castillo, Mendoza, Reyes, Perlas-Bernabe, and Jardeleza, JJ., concur.
Peralta, J., no part.
Leonen, J., see separate concurring opinion.
Caguioa, J., on leave.

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Sirs/Mesdames:
Please take notice that on December 6, 2016 a Decision/Resolution, copy attached herewith, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on January 4, 2017 at 11:17 a.m.

Very truly yours, (SGD) FELIPA G. BORLONGAN-ANAMA Clerk of Court

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^[1] Rollo, pp. 3-46.^[2] Fact-finding as preliminary investigation based on administrative supervision and powers to investigate government officials, Section 5, Article XI of the Constitution, Ombudsman Act of 1990.
^[3] In aid of legislation under Section 21, Article VI of the Constitution.
^[4] Rollo, p. 10
^[5] Id. at 60.
^[6] Id. at 51.
^[7] Id. at 11.
^[8] Id. at 12-13.
^[9] Dumlao v. Commission on Elections, 184 Phil. 369, 376-377 (1980).
^[10] Republic Act No. 9160 as amended by RA 10167.
^[11] CONSTITUTION, Article III, Sec. 1.
^[12] Perez, et al. v. Philippine Telegraph and Telephone Co., et al., 602 Phil. 522, 545 (2009).
^[13] 569 Phil. 98, 120-124 (2008).
^[14] Republic of the Phils. v. Glasgow Credit and Collection Services, Inc., et al. 566 Phil. 94, 106-107 (2008).
^[15] Supra note 13 at 124-125.
^[16] Supra note 11 & 12.
^[17] Supra note 13 at 126.
^[18] 379 Phil. 165 (2000).
^[19] Id. at 196-198.
^[20] G. R. No. 193964, December 2, 2015.
^[21] Rule 6.b. When the AMLC finds, after investigation, that there is probable cause to charge any person with a money laundering offense under Section 4 of the AMLA, as amended, it shall cause a complaint to be filed, pursuant to Section 7 (4) of the AMLA, as amended, before the Department of Justice or the Office of the Ombudsman, which shall then conduct the preliminary investigation of the case.
^[22] Rule 6.c If after due notice and hearing in the preliminary investigation proceedings, the Department of Justice, or the Office of the Ombudsman, as the case may be, finds probable cause for a money laundering offense, it shall file the necessary information before the Regional Trial Courts or the Sadiganbayan.
^[23] Rule 5.a. Jurisdiction of Money Laundering Cases. The Regional Trial Courts shall have the jurisdiction to try all cases on money laundering. Those committed by public officers and private persons who are in conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan.
^[23-a] 100 Phil. 1098 (1957).
^[24] Supra note 18 at 198-200.
^[25] G.R. No. 182573, April 23, 2014, 723 SCRA 512, 522-523.
^[26] Rule 5.b. Investigation of Money Laundering Offenses.- The AMLC shall investigate:

(1) suspicious transactions;
(2) covered transactions deemed suspicious after an investigation conducted by the AMLC;
(3) money laundering activities; and
(4) other violations of the AMLA, as amended.

^[27] G.R. No. 212140-41, January-21, 2015.
^[28] Recommended Citation, Robert S. Pasley, Privacy Rights v. Anti-Money Laundering Enforcement, I 6 N.C. Banking Inst. 147 (2002).
^[29] Supra note 13 at 127-132.
^[30] Bank Secrecy Act (BSA) of 1955, RA No. 1405.
^[31] BSB Group, Inc. v. Go, 626 Phil. 501 (2010).
^[32] Supra note 30 at 513; Sec. 2 of the BSA.
^[33] 705 Phil. 477, 501-502 (2013).
^[34] Supra note 13 at 127.
^[35] Id. at 120.
^[36] Republic of the Philippines v. Roque, 718 Phil. 294, 303 (2013).
^[37] Villanueva v. Mayor Ople, 512 Phil. 187 (2005).
^[38] Velarde v. Social Justice Society, 472 Phil. 285, 302 (2004)
^[39] 369 U.S. 186 (1962), cited in Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 890- 891 (2003).
^[40] See note 13 at 124-125.
^[41] Implementing Rules and Regulations of RA 9160 as amended by RA 9194 and RA 10167;

Rule 3.e.3. "Related Accounts" are those accounts, the funds and sources of which originated from and/or are materially linked to the monetary instruments or properties subject of the freeze order.
Rule 3.e.3.a. Materially linked accounts include but are not limited to the following:

(1)	All accounts or monetary instruments belonging to the same person whose accounts, monetary instruments or properties are the subject of the freeze order;
(2)	All accounts or monetary instruments held, owned or controlled by the owner or holder of the accounts, monetary instruments or properties subject of the freeze order, whether such accounts are held, owned or controlled singly or jointly with another person;
(3)	All accounts or monetary instruments the funds of which are transferred to the accounts, monetary instruments or properties subject of the freeze order without any legal or trade obligation, purpose or economic justification;
(4)	All "In Trust For" (lTF) accounts where the person whose accounts, monetary instruments or properties are the subject of the freeze order is either the trustee or the trustor;
(5)	All accounts held for the benefit or in the interest of the person whose accounts, monetary instruments or properties are the subject of the freeze order;
(6)	All accounts or monetary instruments under the name of the immediate family or household members of the person whose accounts, monetary instruments or properties are the subject of the freeze order if the amount or value involved is not commensurate with the business or financial capacity of the said family or household member;
(7)	All accounts of corporate and juridical entities that are substantially owned, controlled or effectively controlled by the person whose accounts, monetary instruments or properties are subject of the freeze order;
(8)	All shares or units in any investment accounts and/or pooled funds of the person whose accounts, monetary instruments or properties are subject of the freeze order; and
(9)	All other accounts, shares, units or monetary instruments that are similar, analogous or identical to any of the foregoing.

^[42] Supra note 31 at 514-515.
^[43] Supra note 33 at 483.
^[44] Supra note 13 at 122.
^[45] Id. at 127.
^[46] Rule 10.c. Duty of Covered Institutions upon receipt thereof. -

Rule 10.c.1. Upon receipt of the notice of the freeze order, the covered institution concerned shall immediately freeze the monetary instrument or property and related accounts subject thereof.
Rule 10.c.2. The covered institution shall likewise immediately furnish a copy of the notice of the freeze order upon the owner or holder of the monetary instrument or property or related accounts subject thereof.
Rule 10.c.3. Within twenty-four (24) hours from receipt of the freeze order, the covered institution concerned shall submit to the Court of Appeals and the AMLC, by personal delivery, a detailed written return on the freeze order, specifying all the pertinent and relevant information which shall include the following:

(a)	the account numbers;
(b)	the names of the account owners or holders;
(c)	the amount of the monetary instrument, property or related accounts as of the time they were frozen;
(d)	all relevant information as to the nature of the monetary instrument or property;
(e)	any information on the related accounts pertaining to the monetary instrument or property subject of the freeze order; and
(f)	the time when the freeze thereon took effect.

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CONCURRING OPINION

LEONEN, J.:
I concur in the result. It is my honor to do so considering that the majority opinion is the final ponencia for this Court En Banc of our esteemed colleague Justice Jose P. Perez.
I join the unanimous declaration that, based on the challenges posed by the present petitions and only within its ambient facts, Section 11 of Republic Act No. 9160 or the Anti-Money Laundering Act is not unconstitutional. Further, that we are unanimous in declaring that the depositor has no right to demand that it be notified of any application or issuance of an order to inquire into his or her bank deposit. The procedure in the Court of Appeals is ex parte but requires proof of probable cause of the occurrence of the predicate crime as well as the potential liability of the owner of the deposit.
After the inquiry of the bank deposits and related accounts within the limitations contained in the court order, it is still the option of the law enforcers or the Anti-Money Laundering Council, to proceed to request for a Freeze Order in accordance with Section 10 of the same law. The depositor is, thus, entitled to be informed only after the freeze order has been issued. In questioning the freeze order, the depositor may then raise defenses relating to the existence of sufficient evidence to lead the court to believe that there is probable cause that a covered crime has occurred, that the depositor is a participant in the crime, and that the stay of all transactions with respect to the bank account is essential in order to preserve evidence or to keep the proceeds of the crime intact for and on behalf of the victims.
I differ with the premises used to arrive at the same conclusion.
The numbers on a bank's ledger corresponding to the amounts of money that a depositor has and its various transactions, especially when digitized, are definitely not physical. Yet, just because they are not physical does not necessarily mean that they do not partake of the kinds of "life, liberty, or property"^[1] protected by the due process clause of the Constitution. Neither should it mean that the numerical equivalent of the bank's debt to a depositor or the record of its various transactions have nothing to do with the "persons . . . papers, and effects"^[2]constitutionally protected against "unreasonable searches and seizures."^[3] The majority opinion's statement that the "inquiry by the [Anti-Money Laundering Council] into certain bank deposits and investments does not violate substantive due process, there being no physical seizure of property involved at that stage"^[4] may have been inadvertent. It does, however, neglect that the penumbra of rights protected by the due process clause and the proscription against unreasonable searches and seizures also pertains to protecting the intangibles essential to human life. Definitely, every liberal democratic constitutional order has outgrown the archaic concept that life is only that which can be tangible.
The due process clause is crafted as a proscription. Thus, it states that "[n]o person shall be deprived of life, liberty, or property without due process of law[.]"^[5] This means that there is a sphere of individual existence or a penumbra of individual autonomy that exists prior to every regulation that should primordially be left untouched. In other words, the existence of what Louis D. Brandeis and Samuel D. Warren once called "the right to be let alone"^[6] is now broadly, though at times awkwardly referred to roughly as the right to privacy, presumed. Every regulation therefore that limits this aspect of individuality may be the subject of inquiry that it does not "deprive" one of their "life, liberty or property" without "due process of law".
Thus, in the often cited writings of Warren and Brandeis as early as 1890 on the right to privacy:

That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life,— the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession — intangible, as well as tangible.
Thus, with the recognition of the legal value of sensations, the protection against actual bodily injury was extended to prohibit mere attempts to do such injury; that is, the putting another in fear of such injury. From the action of battery grew that of assault. Much later there came a qualified protection of the individual against offensive noises and odors, against dust and smoke, and excessive vibration. The law of nuisance was developed. So regard for human emotions soon extended the scope of personal immunity beyond the body of the individual. His reputation, the standing among his fellow-men, was considered, and the law of slander and libel arose. Man's family relations became a part of the legal conception of his life, and the alienation of a wife's affections was held remediable. Occasionally the law halted,—as in its refusal to recognize the intrusion by seduction upon the honor of the family. But even here the demands of society were met. A mean fiction, the action per quod servitium amisit, was resorted to, and by allowing damages for injury to the parents' feelings, an adequate remedy was ordinarily afforded. Similar to the expansion of the right to life was the growth of the legal conception of property. From corporeal property arose the incorporeal rights issuing out of it; and then there opened the wide realm of intangible property, in the products and processes of the mind, as works of literature and art, goodwill, trade secrets, and trademarks.
This development of the law was inevitable.^[7] (Citations omitted)

Nothing in the structure of the due process clause limits the protected sphere of individual existence or autonomy only to the physical or corporeal aspects of life. After all, as we have long held, life is not limited only to physical existence.^[8] Property can be incorporeal.^[9] Liberty denotes something more than just freedom from physical restraint.
More fundamentally, the reservation of a very broad sphere of individual privacy or individual autonomy is implied in the very concept of society governed under a constitutional and democratic order. The aspects of our humanity and the parts of our liberty surrendered to the government, in order to assure a functioning society, should only be as much as necessary for a just society and no more. While the extent of necessary surrender cannot be determined with precision, our existing doctrine is that any state interference should neither be arbitrary nor unfair. In many cases, we have held that due process of law simply means that regulation should both be reasonable and fair.
Reasonability and fairness is tentatively captured in the twin legal concepts of substantive and procedural due process respectively. Substantive due process is usually, though not in all cases, a nuanced means-­to-end test. Basically, this means that the regulation which impinges on individual autonomy is necessary to meet a legitimate state interest to be protected through means that can logically relate to achieving that end.^[10] Procedural due process is succinctly and most descriptively captured in the idea that in the kinds of deprivation of rights where it would be relevant, there should be an opportunity to be heard.^[11]
In the due process clause, there is the requirement of "deprivation" of one's right to "life, liberty or property." In my view, this means more than the occasional and temporary discomforts we suffer, which is consistent with the natural workings of groups of human beings living within a society. De minimis discomfort is a part of group life, independent of the workings of the State. The deprivation that may trigger a judicial inquiry should be more than momentary. It must be fundamentally disruptive of a value that we protect because it is constitutive of our concept of individual autonomy.
For instance, a person who chooses to walk down a public street cannot complain that a police officer glances or even stares at him or her. The discomfort of being the subject of the observation by others, under those circumstances, may be too fleeting and trivial that it should not cause any constitutional query. That we look at each other in public spaces is inherently a part of existing within a society. After all, one of the worst human indignities may be that we are rendered invisible to everyone for all time within public spaces.
On the other hand, the uninvited and unwelcome peering eyes of the State's agents as we reside in our most private spaces presumptively violates our right to life, liberty, and even our property. In such cases, even the most fleeting act of voyeurism can cause substantial disruption of our collective values. Certainly, there is reason to trigger judicial inquiry. If the intrusion is unreasonable, it violates the constitutional protection of the due process clause.
Examining the petitioner's bank accounts is analogous to the situation involving the uninvited and unwelcome glance. For some, their financial worth contained in the bank's ledgers may not be physical, but it is constitutive of that part of their identity, which for their own reasons, they may not want to disclose. Peering into one's bank accounts and related transactions is sufficiently disruptive as to be considered a "deprivation" within the meaning of the due process clause. It may be short of the physical seizure of property but it should, in an actual controversy such as this case at bar, be subject of judicial review.
I disagree with the majority's opinion that bank accounts do not have any "legitimate expectation of privacy[.]"^[12] I believe that such opinion may be too broad a reading of Republic v. Hon. Judge Eugenio, Jr., et al.^[13] It is true that no bank account or investment can be made without the cooperation of those who work with financial intermediaries. The possibility that there are those, who may come across personal financial information, should not be the measure of what may be "legitimate expectation" in a constitutional sense. We should start to distinguish between knowledge of the content of these accounts, storage of these information, exchange of data, and making public disclosures.
What we deal with when the Court of Appeals allows inquiry is simply providing the Anti-Money Laundering Council or the appropriate law enforcement agency with access to knowledge of the content of these accounts. The limits of its storage, how it is exchanged, and making public disclosures are another matter. Nothing in this decision should be used to imply the nature of the right to privacy or the factors to be considered to establish "legitimate expectation of privacy" as it applies to storage, exchange, and public disclosures of information.
The truth is that most of today's digital data is vulnerable to one who is curious enough, exceedingly determined, skillful, and willing to deploy the necessary time and resources to make discovery of our most private information. Ubiquitous surveillance systems that ensure the integrity as well as increase confidence in the security of the data kept in a system are ever present. Copying or transferring digital data occurs likewise with phenomenal speed. Data shared in cyberspace also tends to be resilient and difficult to completely delete. Users of various digital platforms, including bank accounts, are not necessarily aware of these vulnerabilities.
Therefore, the concept of "legitimate expectation of privacy" as the framework for assessing whether personal information fall within the constitutionally protected penumbra need to be carefully reconsidered. In my view, the protected spheres of privacy will make better sense when our jurisprudence in the appropriate cases make clear how specific types of information relate to personal identity and why this is valuable to assure human dignity and a robust democracy in the context of a constitutional order.
A bank inquiry order is a provisional relief available to the Anti­-Money Laundering Council in aid of its investigative powers. It partakes of the character of a search warrant.
United Laboratories Inc. v. Isip^[14] discussed the nature of a search warrant:

On the first issue, we agree with the petitioner's contention that a search warrant proceeding is, in no sense, a criminal action or the commencement of a prosecution. The proceeding is not one against any person, but is solely for the discovery and to get possession of personal property. It is a special and peculiar remedy, drastic in nature, and made necessary because of public necessity. It resembles in some respect with what is commonly known as John Doe proceedings. While an application for a search warrant is entitled like a criminal action, it does not make it such an action.
A search warrant is a legal process which has been likened to a writ of discovery employed by the State to procure relevant evidence of crime. It is in the nature of a criminal process, restricted to cases of public prosecutions. A search warrant is a police weapon, issued under the police power. A search warrant must issue in the name of the State, namely, the People of the Philippines.
A search warrant has no relation to a civil process. It is not a process for adjudicating civil rights or maintaining mere private rights. It concerns the public at large as distinguished from the ordinary civil action involving the rights of private persons. It may only be applied for in the furtherance of public prosecution.^[15] (Emphasis supplied, citations omitted)

In a search warrant proceeding, there is already a crime that has been committed and law enforcers apply for a search warrant to find evidence to support a case or to retrieve and preserve evidence already known to them.
In the same way, a bank inquiry order is "a means for the government to ascertain whether there is sufficient evidence to sustain an intended prosecution of the account holder for violation of the [Anti-Money Laundering Act]."^[16] It is a preparatory tool for the discovery and procurement, and preservation — through the subsequent issuance of a freeze order — of relevant evidence of a money laundering transaction or activity.
Considering its implications on the depositor's right to privacy, Section 11 of the Anti-Money Laundering Act explicitly mandates that "[t]he authority to inquire into or examine the main account and the related accounts shall comply with the requirements of Article III, Sections 2 and 3 of the 1987 Constitution[.]"
Article III, Section II of the Constitution states:

SECTION 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

"The phrase 'upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce' allows a determination of probable cause by the judge [or the Court of Appeals in Anti-Money Laundering Act cases] ex parte." ^[17]
In People v. Delos Reyes,^[18] the Court held that due to the ex parte and non-adversarial nature of the proceedings, "the [j]udge acting on an application for a search warrant is not bound to apply strictly the rules of evidence."^[19]

The ordinary rules of evidence are generally not applied in ex parte proceedings, partly because there is no opponent to invoke them, partly because the Judge's determination is usually discretionary, partly because it is seldom that, but mainly because the system of evidence rules was devised for the special control of trials by jury.^[20](Emphasis supplied)

"The existence [of probable cause] depends to a large degree upon the finding or opinion of the judge [or magistrate] conducting the examination."^[21] "However, the findings of the judge [or magistrate] should not disregard the facts before him nor run counter to the clear dictates of reason."^[22]
Search warrant proceedings are ex parte because of the necessities of the investigation. La Chemise Lacoste, S.A. v. Hon. Fernandez, etc. et al.,^[23] states:

... an application for a search warrant is heard ex parte. It is neither a trial nor a part of the trial. Action on these applications must be expedited for time is of the essence. Great reliance has to be accorded by the judge to the testimonies under oath of the complainant and the witnesses.^[24] (Emphasis supplied)

Similarly, it is essential that investigations for Anti-Money Laundering Act offenses, including the proceedings for the issuance of bank inquiry orders, be kept ex parte, in order not to frustrate the State's effort in building its case and eventually prosecuting money laundering offenses.
The absence of notice to the owner of a bank account that an ex parte application as well as an order to inquire has been granted by the Court of Appeals is not unreasonable nor arbitrary. The lack of notice does not violate the due process clause of the Constitution.
It is reasonable for the State, through its law enforcers, to inquire ex parte and without notice because of the nature of a bank account at present.
A bank deposit is an obligation. It is a debt owed by a bank to its client-depositor. It is understood that the bank will make use of the value of the money deposited to further create credit. This means that it may use the value to create loans with interest to another. Whoever takes out a loan likewise creates a deposit with another bank creating another obligation and empowering that other bank to create credit once mere through providing other loans.
Bank deposits are not isolated information similar to personal sets of preferences. Rather, bank deposits exist as economically essential social constructs. The inherent constitutionally protected private rights in bank deposits and other similar instruments are not absolute. These rights should, in proper cases, be weighed against the need to maintaining the integrity of our financial system. The integrity of our financial system on the other hand contributes to the viability of banks and financial intermediaries, and therefore the viability of keeping bank deposits.
Furthermore, we are at an age of instantaneous financial transactions. It would be practically impossible to locate, preserve, and later on present evidence of crimes covered by the Anti-Money Laundering Act if the theory of the petitioner is correct. After all, as correctly pointed out by the majority opinion, the right to information accrues only after a freeze order is issued. It is then that limitations on the ability to transact the value of the bank account will truly affect the depositor.
Accordingly, with these clarifications, I vote to DENY the Petition.

---

^[1] CONST., art III, sec. I provides:

ARTICLE III. Bill of Rights
SECTION I. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

^[2] CONST., art. III, sec. 2 provides:

ARTICLE III. Bill of Rights
....
SECTION 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

^[3] CONST., art. III, sec. 2
^[4] Ponencia, p. II.
^[5] CONST., art III, sec. 1.
^[6] Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890). See also Irwin R. Kramer, The Birth of Privacy Law: A Century Since Warren & Brandeis, 39 Cath. U.L. Rev. 703 (1990).
^[7] Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 193-195 (1890).
^[8] Secretary of National Defense, et at. v. Manalo, et al., 589 Phil. 1, 50 (2008) [Per C.J. Puno, En Banc], explained the concept of right to life:

While the right to life under Article III, Section I guarantees essentially the right to be alive - upon which the enjoyment of all other rights is preconditioned- the right to security of person is a guarantee of the secure quality of this life, viz.: "The life to which each person has a right is not a life lived in fear that his person and property may be unreasonably violated by a powerful ruler. Rather, it is a life lived with the assurance that the government he established and consented to, will protect the security of his person and property. The ideal of security in life and property ... pervades the whole history of man. It touches every aspect of man's existence." In a broad sense, the right to security of person "emanates in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual." (Citations omitted)
See also J. Leonen, Separate Opinion in International Service for the Acquisition of Agri-Biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), G.R. No. 209271, December 8, 2015, 776 SCRA 434, 644 [Per J. Villarama, Jr., En Banc].

^[9] CIVIL CODE, arts. 415(10), 417, 519, 520, 521, 613, 721, and 722 provide:

Article 415. The following are immovable property:
....
(10) Contracts for public works, and servitudes and other real rights over immovable property.
....
Article 417. The following are also considered as personal property:
(1) Obligations and actions which have for their object movables or demandable sums; and
(2) Shares of stock of agricultural, commercial and industrial entities, although they may have real estate.
....
Article 519. Mining claims and rights and other matters concerning minerals and mineral lands are governed by special laws.
Article 520. A trade mark or trade-name duly registered in the proper government bureau or office is owned by and pertains to the person, corporation, or firm registering the same, subject to the provisions of special laws.
Article 521. The goodwill of a business is property, and may be transferred together with the right to use the name under which the business is conducted.
Article 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate.
Article 721. By intellectual creation, the following persons acquire ownership:
(1) The author with regard to his literary, dramatic, historical, legal, philosophical, scientific or other work;
(2) The composer, as to his musical composition;
(3) The painter, sculptor, or other artist, with respect to the product of his art;
(4) The scientist or technologist or any other person with regard to his discovery or invention.
Article 722. The author and the composer, mentioned in Nos. 1 and 2 of the preceding article, shall have the ownership of their creations even before the publication of the same. Once their works are published, their rights are governed by the Copyright laws.
The painter, sculptor or other artist shall have dominion over the product of his art even before it is copyrighted.
The scientist or technologist has the ownership of his discovery or invention even before it is patented.
INTELLECTUAL PROP. CODE, secs. 28, 71, 103, 147.1, 165.1, 165.2, and 177 provide:
SECTION 28. Right to a Patent. The right to a patent belongs to the inventor, his heirs, or assigns. When two (2) or more persons have jointly made an invention, the right to a patent shall belong to them jointly.
....
SECTION 71. Rights Conferred by Patent.-
71.1. A patent shall confer on its owner the following exclusive rights:

1. Where the subject matter of a patent is a product, to restrain, prohibit and prevent any unauthorized person or entity from making, using, offering for sale, selling or importing that product;
2. Where the subject matter of a patent is a process, to restrain, prevent or prohibit any unauthorized person or entity from using the process, and from manufacturing, dealing in, using, selling or offering for sale, or importing any product obtained directly or indirectly from such process.

71.2. Patent owners shall also have the right to assign, or transfer by succession the patent, and to conclude licensing contracts for the same.
....
SECTION 103. Transmission of Rights.-
103.1. Patents or applications for patents and invention to which they relate, shall be protected in the same way as the rights of other property under the Civil Code.
103.2. Inventions and any right, title or interest in and to patents and inventions covered thereby, may be assigned or transmitted by inheritance or bequest or may be the subject of a license contract.
....
SECTION 147. Rights Conferred.-
147.1. The owner of a registered mark shall have the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs or containers for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed.
....
SECTION 165. Trade Names or Business Names.-
165.1. A name or designation may not be used as a trade name if by its nature or the use to which such name or designation may be put, it is contrary to public order or morals and if, in particular, it is liable to deceive trade circles or the public as to the nature of the enterprise identified by that name.
165.2.
a. Notwithstanding any laws or regulations providing for any obligation to register trade names, such names shall be protected, even prior to or without registration, against any unlawful act committed by third parties.
b. In particular, any subsequent use of the trade name by a third party, whether as a trade name or a mark or collective mark, or any such use of a similar trade name or mark, likely to mislead the public, shall be deemed unlawful.
....
SECTION 177. Copyright or Economic Rights. - Subject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to 'carry out, authorize or prevent the following acts:
177.1. Reproduction of the work or substantial portion of the work;
177.2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;
177.3. The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;
177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental;
177.5. Public display of the original or a copy of the work;
177.6. Public performance of the work; and
177.7. Other communication to the public of the work.

^[10] City of Manila v. Hon. Laguio, Jr., 495 Phil. 289, 311-312 [Per J. Tinga, En Banc], states, "[s]ubstantive due process, as that phrase connotes, asks whether the government has an adequate reason for taking away a person's life, liberty, or property. In other words, substantive due process looks to whether there is sufficient justification for the government's action. Case law in the United States (U.S.) tells us that whether there is such a justification depends very much on the level of scrutiny used. For example, if a law is in an area where only rational basis review is applied, substantive due process is met so long as the law is rationally related to a legitimate government purpose. But if it is an area where strict scrutiny is used, such as for protecting fundamental rights, then the government will meet substantive due process only if it can prove that the law is necessary to achieve a compelling government purpose."
Further, in Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., G.R. No. 189185, August 16, 2016 < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/august2016/189185.pdf > 28 [Per J. Bersamin, En Banc], the Court referred to three levels of scrutiny in analysing the validity of governmental intrusion: the rational basis test, which inquires into the reasonable relation between the means and purpose of the law; the intermediate or heightened review where "the law must not only further an important governmental interest and be substantially related to that interest, but ... the classification ... must not depend on broad generalizations[;]" (Id.) and the strict scrutiny review, where the Government must prove the necessity "to achieve a compelling state interest, and that [the law or ordinance] is the least restrictive means to protect such interest." (Id.) In Mosqueda, The Court declared unconstitutional Davao City Ordinance No. 0309-07, (Id. at 46) which imposed a ban in aerial spraying as an agricultural practice, for being "broad because the ordinance applies irrespective of the substance to be aerially applied and irrespective of the agricultural activity to be conducted[;]" (Id. at 34) and for being unreasonable and oppressive, "in light of the existence and availability of more permissible and practical alternatives that will not overburden ... those who stand to be affected." (Id. at 36).
See also Serrano v. Gallant Maritime Services, Inc., et al., 601 Phil. 245 (2009) [Per J. Austria­ Martinez, En Banc], White Light Corporation, et al. v. City of Manila, 596 Phil. 444, 461-464 (2009) [Per J. Tinga, En Banc]; Blo Umpar Adiong v. Commission on Elections, G.R. No. 103956, March 31, 1992, 207 SCRA 712 [Per J. Gutierrez, Jr., En Banc].
^[11] Gutierrez v. Commission on Audit, G.R. No. 200628, January 13, 2015, 745 SCRA 435, 452-453 [Per J. Leonen, En Banc); Montinola v. Philippine Airlines, G.R. No. 198656, September 8, 2014, 734 SCRA 439, 459-460 [Per J. Leonen, Second Division); Department of Agrarian Reform v. Samson, et al., 577 Phil. 370, 380 (2008) [Per J. Ynares-Santiago, Third Division]; F/O Ledesma v. Court of Appeals, 565 Phil. 731, 740 (2007) [Per J. Tinga, Second Division]; Air Philippines Corporation v. International Business Aviation Services Philippines, Inc., 481 Phil. 366, 386 (2004) [Per J. Panganiban, Third Division]; Macayayong v. Hon. Ople, 281 Phil. 419, 423-424 (1991) [Per J. Bidin, Third Division]; Ang Tibay v. Court of Industrial Relations, 69 Phil. 635, 641-642 (1940) [Per J. Laurel, En Banc].
^[12] Ponencia, p. 11.
^[13] 569 Phil. 98 (2008) [Per J. Tinga, Second Division].
^[14] 500 Phil. 342 (2005) [Per J. Callejo, Sr., Second Division].
^[15] Id. at 357-358.
^[16] Republic v. Hon. Judge Eugenio, Jr., et al., 569 Phil. 98, 120 (2008) [Per J. Tinga, Second Division].
^[17] Mendoza v. People, et al., 733 Phil. 603, 613 (2014) [Per J. Leonen, Third Division].
^[18] People v. Delos Reyes, 484 Phil. 271 (2004) [Per J. Callejo, Sr., Second Division].
^[19] Id. at 285.
^[20] Id., citing Brinegar v. United States, 93 L.ed. 1879 (1949).
^[21] Santos v. Pryce Gases, Inc., 563 Phil. 781, 793 (2007) [Per J. Tinga, Second Division].
^[22] Id.
^[23] 214 Phil. 332 (1984) [Per J. Gutierrez, Jr., First Division].
^[24] Id. at 350. 

YOLANDA LUY Y GANUELAS, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

This case involves the criminal attempt by the petitioner to smuggle dangerous drugs (shabu) inside a detention facility to her detained husband by submerging the packets of shabu inside a plastic jar filled with strawberry juice and cracked ice. The attempt failed because of the alacrity of the lady guard manning the entrance of the jail compound.chanroblesvirtuallawlibrary

The Case

Under appeal is the decision promulgated on August 31, 2011,¹ whereby the Court of Appeals (CA) affirmed in CA-G.R. CR No. 33057 the judgment rendered on September 18, 2009 by the Regional Trial Court (RTC), Branch 74, in Olongapo City finding the petitioner guilty beyond reasonable doubt of illegal possession of six heat-sealed transparent plastic sachets containing methamphetamine hydrochloride (shabu) with a total net weight of approximately 2.60 grams.²

Antecedents

The Office of the City Prosecutor in Olongapo City initiated the prosecution through the information filed in the RTC charging the petitioner with violation of Section 11, Article II, Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002), alleging:chanRoblesvirtualLawlibrary

That on or about the twenty-fifth (25^th) day of October 2004, in the City of Olongapo, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and knowingly have in her effective possession and control six (6) heat-sealed transparent plastic sachets containing Methamphetamine Hydrochloride otherwise known as 'Shabu' with an approximate total weight of Two Gram (sic) and Six Tenth (2.6) of a gram which is a dangerous drugs (sic), said accused not having the corresponding license or prescription to possess said dangerous drugs, (sic)

CONTRARY TO LAW.³

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The CA narrated the factual and procedural antecedents, viz.:

During the trial, the prosecution presented the lone testimony of Jail Officer 3 Myrose Joaquin, while the accused-appellant testified for the defense.

As part of her testimony, JO3 Joaquin claimed that on 25 October 2004, she was doing her usual duty as female guard at the gate of the Bureau of Jail Management Bureau Olongapo City. When she searched the effects of accused-appellant for possible contrabands, her attention was called on the strawberry juice placed in a white container full of cracked ice inside. When she was asked what was unusual about the juice, JO3 Joaquin answered that accused-appellant can make the juice inside if she wanted to. To quell her suspicion, JO3 Joaquin asked accused-appellant if she could transfer it in another container but accused-appellant refused. JO3 Joaquin insisted, nevertheless. They then went to the guardhouse and transferred the juice into a bowl. As the ice inside scattered, the illegal drugs were revealed. Accused-appellant allegedly pleaded for her not to report the matter to the jail warden, but JO3 Joaquin ignored her plea. After bringing accused-appellant to the jail warden, they brought the confiscated items to the laboratory for examination. The examination revealed that the confiscated items were positive for methamphetamine hydrochloride.

JO3 Joaquin also identified the accused-appellant in court and the confiscated items and claimed that they can identify them to be the same items seized from accused-appellant because of the markings she placed thereon.

On cross-examination, JO3 Joaquin explained that the heat-sealed plastic sachets were wrapped with a plastic and two (2)-peso coin. She also admitted that she placed accused-appellant on a close watch because even prior to the incident, accused-appellant would bring with her ready-made juice, making her think that accused-appellant was peddling illegal drugs inside the prison. Finally, she claimed that she never had a misunderstanding with accused-appellant prior to the date of the incident.

Accused-appellant, on the other hand, claimed that on 25 October 2004, she was at the BJMP to visit her husband, Nestor, a prisoner therein. As she was about to go inside the compound, a certain Melda called her and requested that she give the juice to her husband, a certain Bong, who was also a prisoner at the BJMP. Accused-appellant initially declined and advised Melda to go personally so she could talk to her husband. Melda, however, was supposedly in a hurry as she still had to fetch her child. Melda allegedly also had no identification at that time. Because of Melda's insistence, accused-appellant acceded to her request and got Melda's plastic box containing a Tupperware and a juice container. When she was asked who could corroborate this story, accused-appellant claimed that nobody saw Melda handed (sic) to her the juice container as she had no companion at that time.

Accused-appellant further stated that after receiving Melda's items, she already went inside the compound and went passed (sic) through the routine security inspection. When JO3 Joaquin transferred the juice into a bowl, she saw a plastic that contained two (2) coins. Thereafter, JO3 Joaquin brought her to the office of the BJMP. After a while, she was detained.

On cross-examination, accused-appellant admitted that her husband was convicted of a drug-related case and that she, herself, was once detained before. She did not know the full name of Melda or her husband but she had seen them in the past inside the jail. She also admitted that there can be no dispute that the drugs were found in her possession but maintained that the same came from Melda.⁴

chanrobleslaw
Judgment of the RTC

After the trial, the RTC rendered judgment on September 18, 2009 convicting the petitioner as charged,⁵disposing thusly:chanRoblesvirtualLawlibrary

WHEREFORE, this Court finds accused Yolanda Luy y Ganuelas guilty beyond reasonable doubt of violation of Section 11, Article II, R. A. 9165 and is hereby sentenced to suffer the penalty of imprisonment of twelve (12) years and one (1) day and to pay a fine of P300,000.00 with subsidiary imprisonment in case of inability to pay the fine. The illegal drug confiscated from the accused is hereby ordered to be turned over to the Philippine Drug and (sic) Enforcement Agency (PDEA) for disposition in accordance with law.

SO ORDERED.⁶

chanrobleslaw
Decision of the CA

The petitioner appealed, but the CA affirmed the conviction through the now assailed decision, holding:chanRoblesvirtualLawlibrary

WHEREFORE, premises considered, the instant Appeal is DENIED. The assailed Decision of the court a quo is AFFIRMED IN TOTO.

SO ORDERED.⁷

chanrobleslaw
Issue

In this appeal, the petitioner insists that the CA erred in affirming her conviction despite the failure of the Prosecution to show that arresting officer JOS Myrose Joaquin had faithfully complied with the requirement on the chain of custody under Section 21 of R.A. No. 9165; that, accordingly, the packets of shabu presented in court as evidence were not shown to be the same substances recovered from her; that, moreover, JO3 Joaquin claimed to have brought the substances herself to the crime laboratory for chemical examination, but did not mention the person who had received the same from her at the laboratory; and that no inventory of the seized substances was made and no any pictures of them were taken at the point of arrest.


The appeal lacks merit.

First of all, the factual findings of the trial court, its calibration of the testimonies of the witnesses, and its assessment of the probative weight thereof, as well as its conclusions on the credibility of the witnesses on which said findings were anchored are accorded great respect. This great respect rests in the trial court's first-hand access to the evidence presented during the trial, and in its direct observation of the witnesses and their demeanor while they testify on the occurrences and events attested to.⁸ Absent any showing of a fact or circumstance of weight and influence that would appear to have been overlooked and, if considered, could affect the outcome of the case, the factual findings on and assessment of the credibility of witnesses made by the trial court are binding on the appellate tribunal.⁹ Unlike the appellate court, the trial court has the unique opportunity of such personal observation. The respect for the latter court's factual findings particularly deepens once the appellate court has affirmed such factual findings, for the latter, performing its sworn duty to re-examine the trial records as thoroughly as it could in order to uncover any fact or circumstances that could impact the verdict in favor of the appellant, is then presumed to have uncovered none sufficient to undo or reverse the conviction. As such, the lower courts' unanimous factual findings are generally binding upon the Court which is not a trier of facts.¹⁰

Upon review, the Court has not found any valid reason to disturb the factual findings of the RTC and the CA.

Secondly, a successful prosecution for the illegal possession of dangerous drugs in violation of Section 11 of R. A. No. 9165 requires that the following essential elements of the offense be established, namely: (1) the accused is in possession of an item or object identified as a prohibited drug; (2) her possession is not authorized by law; and (3) she freely and consciously possessed the drug.¹¹

The petitioner, whose husband, Nestor, was a detainee in the Olongapo City jail, was caught in the actual illegal possession of the shabu involved herein as she was entering the gate of the jail compound by JO3 Joaquin, the female guard, during the latter's routine inspection of her person and personal belongings on October 25, 2004. JO3 Joaquin, as the designated searcher of female visitors, conducted the search in the presence of other jail guards. Noticing the round white-colored plastic jar labeled Tang Orange filled with cracked ice and strawberry juice, she insisted that the petitioner transfer the strawberry juice into another container, but the latter resisted. JO3 Joaquin and a fellow jail guard then brought the jar inside the guardhouse with the petitioner in tow, and there emptied its contents into a bowl. Upon removing the cracked ice, the jail guards discovered the plastic material containing two P1 coins inside the jar. At that point, the petitioner pleaded with them not to report their discovery to the jail warden, but JOS Joaquin ignored her. The guards immediately haled her before the warden along with the plastic material and its contents. Opening the plastic material in the presence of the petitioner, they found the six heat-sealed transparent plastic sachets with suspected shabu inside. Under the circumstances, the petitioner was arrested in flagrante delicto.

At the time of confiscation on October 25, 2004, JO3 Joaquin marked the heat-sealed plastic sachets of shabu with her initials "MCJ/AO".¹² Thereafter, the request for laboratory examination was prepared by P./Chief Insp. Miguel Gallardo Corpus.¹³ The request and the substances were delivered to the laboratory by PO1 CM. Ballon. Later on, the PNP Crime Laboratory Service issued Chemistry Report No. D-0181-2004 (Exhibit C) through P./Sr. Insp. Arlyn M. Dascie, Forensic Chemist, attesting to the findings on the substances indicating the presence of methylamphetamine hydrochloride, or shabu.¹⁴

The petitioner expectedly denied that the shabu belonged to her. Her sole explanation for why she had the shabu at the time was that a certain Melda had requested her to bring the jar of strawberry juice inside the jail compound for her husband, Bong, also a detainee, because Melda had supposedly forgotten to bring her identification card that day, and because she was then in a hurry to fetch her child.

The RTC after the trial and the CA on appeal rejected the petitioner's denial and explanation. We also reject them now. Denial, aside from being easily fabricated, has been the common excuse tendered by those arrested and prosecuted for the illegal possession of dangerous drugs. Under Section 11¹⁵ of R.A. Act No. 9165, however, the mere possession of the dangerous drugs was enough to render the possessor guilty of the offense. Moreover, the denial by the petitioner, being self-serving and negative, did not prevail over the positive declarations of JO3 Joaquin. In order for the denial to be accorded credence, it must be substantiated by strong and convincing evidence.¹⁶ Alas, the petitioner did not present such evidence here. As to her explanation, she could have presented Melda herself to corroborate her story. Her word alone not enough because she had been caught in the actual possession of the shabu during the routinary search at the gate of the jail compound. As such, we cannot allow her denial to gain traction at all.¹⁷

In fine, all the essential elements of illegal possession of dangerous drugs were established. To start with, she was caught in the voluntary possession of the shabu. And, secondly, she presented no evidence about her being authorized to possess the shabu. Worthy to reiterate is that her mere possession of the shabu constituted the crime itself. Her animus possidendi — the intent to possess essential in crimes of mere possession like this - was established beyond reasonable doubt in view of the absence of a credible explanation for the possession.¹⁸

Thirdly, the petitioner insists that the State did not prove the chain of custody of the shabu. In our view, however, her immediate admission of the possession of the shabu following her arrest in flagranti delicto bound her for, under the rules on evidence, the act, declaration or omission of a party as to a relevant fact was admissible against her.¹⁹ Her admission renders her insistence irrelevant and inconsequential.

Finally, the CA affirmed the penalty fixed by the RTC of 12 years and one day of imprisonment and fine of P300,000.00 with subsidiary imprisonment in case of inability to pay the fine. The affirmance was erroneous for two reasons, namely: one, the penalty of imprisonment thus imposed was a straight penalty, which was contrary to Section 1 of the Indeterminate Sentence Law; and, two, mandating the subsidiary imprisonment was legally invalid and unenforceable.

The penalty for the crime committed by the petitioner is provided for in Section 11(3) of R.A. No. 9165, as follows:chanRoblesvirtualLawlibrary

Section 11. Possession of Dangerous Drugs. — The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess any dangerous drug In the following quantities, regardless of the degree of purity thereof:cralawlawlibrary

x x x x

(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000.00) to four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride or "shabu", or other dangerous drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or less than three hundred (300) grams of marijuana.

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Based on the provision, the correct penalty was an indeterminate sentence whose minimum should not be less than the minimum of 12 years and one day prescribed by Section 11(3), R.A. No. 9165, supra, and whose maximum should not exceed the maximum of 20 years as also prescribed by Section 11(3), R.A. No. 9165, supra. The imposition of the indeterminate sentence was required by Section 1 of the Indeterminate Sentence Law, viz.:

Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. (As amended by Act No. 4225)

chanrobleslaw
Considering that neither the offense committed nor the imposable penalty was expressly exempt from the coverage of the Indeterminate Sentence Law pursuant to Section 2²⁰ thereof, the imposition of the indeterminate sentence was mandatory.²¹ The minimum and the maximum periods had a worthy objective, for, as the Court expounded in Bacar v. Judge de Guzman, Jr.:²²chanroblesvirtuallawlibrary

The need for specifying the minimum and maximum periods of the indeterminate sentence is to prevent the unnecessary and excessive deprivation of liberty and to enhance the economic usefulness of the accused, since he may be exempted from serving the entire sentence, depending upon his behavior and his physical, mental, and moral record.

The requirement of imposing an indeterminate sentence in all criminal offenses whether punishable by the RPC or by special laws, with definite minimum and maximum terms, as the Court deems proper within the legal range of the penalty specified by the law must, therefore, be deemed mandatory.

chanrobleslaw
To conform with the Indeterminate Sentence Law, therefore, the indeterminate sentence should be 12 years and one day, as minimum, to 14 years, as maximum.

The other error of the lower courts was in imposing subsidiary imprisonment should the petitioner be unable to pay the fine. The imposition of subsidiary imprisonment, which is a subsidiary personal liability of a person found guilty by final judgment who has no property with which to meet the fine, is based on and in accord with Article 39 of the Revised Penal Code, a provision that is supplementary to special laws (like R.A. No. 9165) unless the latter should specially provide the contrary.²³ But subsidiary imprisonment cannot be imposed on the petitioner because her principal penalty, supra, was higher then prision correccional or imprisonment for six years. In this regard, Article 39 of the Revised Penal Code relevantly states:chanRoblesvirtualLawlibrary

Article 39. Subsidiary penalty. — If the convict has no property with which to meet the fine mentioned in the paragraph 3 of the next preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each eight pesos, subject to the following rules:cralawlawlibrary

x x x x

3. When the principal imposed is higher than prision correctional, no subsidiary imprisonment shall be imposed upon the culprit.

x x x x

chanrobleslaw
To repeat, the RTC's imposition of subsidiary imprisonment "in case of inability to pay the fine" of P300,000.00 was invalid and legally unenforceable.

In view of the foregoing, the petitioner is ordered to suffer the modified penalty of an indeterminate sentence of 12 years and one day, as minimum, to 14 years, as maximum, and to pay a fine of P300,000.00, without subsidiary imprisonment in case of her insolvency.

WHEREFORE, the Court AFFIRMS the decision promulgated on August 31, 2011 in CA-G.R. CR No. 33057 subject to the MODIFICATION that the penalty of the petitioner is the indeterminate sentence of 12 years and one day, as minimum, to 14 years, as maximum, and to pay a fine of P300,000.00 without subsidiary imprisonment in case of her insolvency; and ORDERS the petitioner to pay the costs of suit.

SO ORDERED.ChanRoblesVirtualawlibrary

Leonardo-De Castro, (Acting Chairperson), Perlas-Bernabe, and Caguioa, JJ., concur.
Sereno, C.J., on leave.

---

¹Rollo, pp. 18-26; penned by Associate Justice Rodil V. Zalameda, with the concurrence of Associate Justice Amelita G. Tolentino (retired) and Associate Justice Normandie B. Pizarro.

² Id. at pp. 28-35; penned by Acting Presiding Judge Clodualdo M. Monta.

³ Id. at 19.

⁴ Id. at 19-22.

⁵ Supra note 2.

⁶Rollo, p. 22.

⁷ Id. at 26.

⁸ Gulmatico v. People, G.R. No. 146296 October 15, 2007 536 SCRA 82, 95; People v. De Guzman, G.R. Mo. 177569, November 28, 2007, 539 SCRA 306, 314; People v. Cabugatan, G.R. No. 172019, February 12, 2007, 515 SCRA 537, 547.People v. Taan, G.R. No. 169432, October 30, 2006, 506 SCRA 219, 230; Perez y. People, G.R. No. 150443, January 20, 2006, 479 SCRA 209, 219-220; People v. Tonog, Jr., G.R. No. 144497, June 29, 2004, 433 SCRA 139, 153-154; People v. Genita, Jr., G.R. No. 126171, March 11, 2004, 425 SCRA 343, 349; People v. Pacheco, G.R. No142887, March 2, 2004, 424 SCRA 164, 174; People v. Abolidor, G.R. No. 147231, February 18, 2004, 42 3 SCRA 260, 265-266; People v. Santiago, G.R. No. 137542-43, January 20, 2004, 420 SCRA 248, 256.

⁹People v. Taan, G.R. No. 169432, October 30, 2006, 506 SCRA 219, 230; Bricenio v. People, G.R. No. 157804, June 20, 2006, 491 SCRA 489, 495-496.

¹⁰People v. Prajes, G.R. No. 206770, April 2, 2014, 720 SCRA 594, 601, citing People v. Vitero, G.R. No. 175327, April 3, 2013, 695 SCRA 54, 64-65.

¹¹People v. Dela Cruz, G.R. No. 182348, November 20, 2008, 571 SCRA 469, 474-475.

¹²Rollo, p. 80.

¹³ Id. at 58.

¹⁴ Id. at 59.

¹⁵ Section 11. Possession of Dangerous Drugs. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess any dangerous drug in the following quantities, regardless of the degree of purity thereof:

x x x x.

¹⁶Portuguez v. People, G.R. No. 194499, January 14, 2015, 746 SCRA 114, 125, citing People v. Gonzaga, G.R. No. 184952, October 11, 2010, 632 SCRA 551, 569.

¹⁷People v. Garcia, G.R. No. 200529, September 19, 2012, 681 SCRA 465, 477.

¹⁸People v. Bontuyan, G.R. No. 206912, September 10, 2014, 735 SCRA 49, 61.

¹⁹ Rule 130 of the Rules of Court provides:cralawlawlibrary

Section 26. Admissions of a party. - The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (22)

²⁰ Section 2. This Act shall not apply to persons convicted of offenses punished with death penalty or life imprisonment; to those convicted of treason, conspiracy or proposal to commit treason; to those convicted of misprision of treason, rebellion, sedition or espionage; to those convicted of piracy; to those who are habitual delinquents; to those who shall have escaped from confinement or evaded sentence; to those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof; to those whose maximum term of imprisonment does not exceed one year; nor to those already sentenced by final judgment at the time of approval of this Act, except as provided in Section 5 hereof. (As amended by Act No. 4225, Aug. 8, 1935)

²¹ Argoncillo v. Court of Appeals, G.R. No. 118806, July 10, 1998; 292 SCRA 313, 331; Bacar v. De Guzman, Jr., A.M. No. RTJ-96-1349, April 18, 1997, 271 SCRA 328, 339; People v. Lee, Jr., No. L-66859, September 12, 1984, 132 SCRA 66, 67.

²² Supra, at 340.

²³ Article 10 of the Revised Penal Code states:cralawlawlibrary

Article 10. Offenses not subject to the provisions of this Code. — Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary.

EN BANC

JUAN G. FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.

RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.

(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive elections but who was twice declared by this Court to be disqualified to hold such office due to his alien citizenship, and who now claims to have re-assumed his lost Philippine citizenship thru repatriation;

(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of Frivaldo should be considered void; that the electorate should be deemed to have intentionally thrown away their ballots; and that legally, he secured the most number of valid votes; or

(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of governor, but who according to prevailing jurisprudence should take over the said post inasmuch as, by the ineligibility of Frivaldo, a "permanent vacancy in the contested office has occurred"?

In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies existing jurisprudence on citizenship and elections, and upholds the superiority of substantial justice over pure legalisms.

This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary injunction to review and annul a Resolution of the respondent Commission on Elections (Comelec), First Division,1 promulgated on December 19, 19952 and another Resolution of the Comelec en banc promulgated February 23, 19963 denying petitioner's motion for reconsideration.

On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another candidate, filed a petition4 with the Comelec docketed as SPA No. 95-028 praying that Frivaldo "be disqualified from seeking or holding any public office or position by reason of not yet being a citizen of the Philippines", and that his Certificate of Candidacy be canceled. On May 1, 1995, the Second Division of the Comelec promulgated a Resolution5 granting the petition with the following disposition6:

The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995 elections. So, his candidacy continued and he was voted for during the elections held on said date. On May 11, 1995, the Comelec en banc7 affirmed the aforementioned Resolution of the Second Division.

The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of Votes8 dated May 27, 1995 was issued showing the following votes obtained by the candidates for the position of Governor of Sorsogon:

On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition9 praying for his proclamation as the duly-elected Governor of Sorsogon.

In an order10 dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995," the Comelec en banc directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the purpose of proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of Sorsogon on June 29, 1995 . . ." Accordingly, at 8:30 in the evening of June 30, 1995, Lee was proclaimed governor of Sorsogon.

On July 6, 1995, Frivaldo filed with the Comelec a new petition,11 docketed as SPC No. 95-317, praying for the annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He alleged that on June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of the Philippines after "his petition for repatriation under P.D. 725 which he filed with the Special Committee on Naturalization in September 1994 had been granted". As such, when "the said order (dated June 21, 1995) (of the Comelec) . . . was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there was no more legal impediment to the proclamation (of Frivaldo) as governor . . ." In the alternative, he averred that pursuant to the two cases of Labo vs. Comelec,12 the Vice-Governor - not Lee - should occupy said position of governor.

On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution13 holding that Lee, "not having garnered the highest number of votes," was not legally entitled to be proclaimed as duly-elected governor; and that Frivaldo, "having garnered the highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree No. 725 . . . (is) qualified to hold the office of governor of Sorsogon"; thus:

On December 26, 1995, Lee filed a motion for reconsideration which was denied by the Comelec en banc in its Resolution 14 promulgated on February 23, 1996. On February 26, 1996, the present petition was filed. Acting on the prayer for a temporary restraining order, this Court issued on February 27, 1996 a Resolution which inter alia directed the parties "to maintain the status quo prevailing prior to the filing of this petition."

Petitioner Lee's "position on the matter at hand may briefly be capsulized in the following propositions"15:

This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are also at issue in G.R. No. 123755, as follows:

Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for disqualification within the period of fifteen days prior to the election as provided by law is a jurisdictional defect which renders the said Resolutions null and void.

By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they are intimately related in their factual environment and are identical in the ultimate question raised, viz., who should occupy the position of governor of the province of Sorsogon.

On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to file simultaneously their respective memoranda.

From the foregoing submissions, the consolidated issues may be restated as follows:

1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to qualify him to be proclaimed and to hold the Office of Governor? If not, may it be given retroactive effect? If so, from when?

2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his eligibility to run for, be elected to or hold the governorship of Sorsogon?

3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317 considering that said petition is not "a pre-proclamation case, an election protest or a quo warranto case"?

4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing jurisprudence?

5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed Resolutions, all of which prevented Frivaldo from assuming the governorship of Sorsogon, considering that they were not rendered within the period referred to in Section 78 of the Omnibus Election Code, viz., "not later than fifteen days before the elections"?

The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this case. All the other matters raised are secondary to this.

The Local Government Code of 199119 expressly requires Philippine citizenship as a qualification for elective local officials, including that of provincial governor, thus:

Inasmuch as Frivaldo had been declared by this Court20 as a non-citizen, it is therefore incumbent upon him to show that he has reacquired citizenship; in fine, that he possesses the qualifications prescribed under the said statute (R.A. 7160).

Under Philippine law,21 citizenship may be reacquired by direct act of Congress, by naturalization or by repatriation. Frivaldo told this Court in G.R. No. 10465422 and during the oral argument in this case that he tried to resume his citizenship by direct act of Congress, but that the bill allowing him to do so "failed to materialize, notwithstanding the endorsement of several members of the House of Representatives" due, according to him, to the "maneuvers of his political rivals." In the same case, his attempt at naturalization was rejected by this Court because of jurisdictional, substantial and procedural defects.

Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the same opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus twice disqualified from holding and discharging his popular mandate. Now, he comes to us a third time, with a fresh vote from the people of Sorsogon and a favorable decision from the Commission on Elections to boot. Moreover, he now boasts of having successfully passed through the third and last mode of reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the Solicitor General himself, who was the prime opposing counsel in the previous cases he lost, this time, as counsel for co-respondent Comelec, arguing the validity of his cause (in addition to his able private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance under the provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists that he -- not Lee -- should have been proclaimed as the duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the said date since, clearly and unquestionably, he garnered the highest number of votes in the elections and since at that time, he already reacquired his citizenship.

En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects, which we shall now discuss in seriatim.

First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that "then President Corazon Aquino exercising legislative powers under the Transitory Provisions of the 1987 Constitution, forbade the grant of citizenship by Presidential Decree or Executive Issuances as the same poses a serious and contentious issue of policy which the present government, in the exercise of prudence and sound discretion, should best leave to the judgment of the first Congress under the 1987 Constitution", adding that in her memorandum dated March 27, 1987 to the members of the Special Committee on Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino directed them "to cease and desist from undertaking any and all proceedings within your functional area of responsibility as defined under Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended."23

This memorandum dated March 27, 198724 cannot by any stretch of legal hermeneutics be construed as a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent ones 25 and a repeal may be express or implied. It is obvious that no express repeal was made because then President Aquino in her memorandum -- based on the copy furnished us by Lee -- did not categorically and/or impliedly state that P.D. 725 was being repealed or was being rendered without any legal effect. In fact, she did not even mention it specifically by its number or text. On the other hand, it is a basic rule of statutory construction that repeals by implication are not favored. An implied repeal will not be allowed "unless it is convincingly and unambiguously demonstrated that the two laws are clearly repugnant and patently inconsistent that they cannot co-exist".26

The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for not every pronouncement of the Chief Executive even under the Transitory Provisions of the 1987 Constitution can nor should be regarded as an exercise of her law-making powers. At best, it could be treated as an executive policy addressed to the Special Committee to halt the acceptance and processing of applications for repatriation pending whatever "judgment the first Congress under the 1987 Constitution" might make. In other words, the former President did not repeal P.D. 725 but left it to the first Congress -- once created -- to deal with the matter. If she had intended to repeal such law, she should have unequivocally said so instead of referring the matter to Congress. The fact is she carefully couched her presidential issuance in terms that clearly indicated the intention of "the present government, in the exercise of prudence and sound discretion" to leave the matter of repeal to the new Congress. Any other interpretation of the said Presidential Memorandum, such as is now being proffered to the Court by Lee, would visit unmitigated violence not only upon statutory construction but on common sense as well.

Second, Lee also argues that "serious congenital irregularities flawed the repatriation proceedings," asserting that Frivaldo's application therefor was "filed on June 29, 1995 . . . (and) was approved in just one day or on June 30, 1995 . . .", which "prevented a judicious review and evaluation of the merits thereof." Frivaldo counters that he filed his application for repatriation with the Office of the President in Malacañang Palace on August 17, 1994. This is confirmed by the Solicitor General. However, the Special Committee was reactivated only on June 8, 1995, when presumably the said Committee started processing his application. On June 29, 1995, he filled up and re-submitted the FORM that the Committee required. Under these circumstances, it could not be said that there was "indecent haste" in the processing of his application.

Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was intended solely for the personal interest of respondent,"27 the Solicitor General explained during the oral argument on March 19, 1996 that such allegation is simply baseless as there were many others who applied and were considered for repatriation, a list of whom was submitted by him to this Court, through a Manifestation28 filed on April 3, 1996.

On the basis of the parties' submissions, we are convinced that the presumption of regularity in the performance of official duty and the presumption of legality in the repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact that the proceedings were speeded up is by itself not a ground to conclude that such proceedings were necessarily tainted. After all, the requirements of repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome. In fact, P.D.
72529 itself requires very little of an applicant, and even the rules and regulations to implement the said decree were left to the Special Committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets a first-time entry into Philippine political life, in repatriation the applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his country and his province prior to his naturalization in the United States -- a naturalization he insists was made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in conscience embrace -- and who, after the fall of the dictator and the re-establishment of democratic space, wasted no time in returning to his country of birth to offer once more his talent and services to his people.

So too, the fact that ten other persons, as certified to by the Solicitor General, were granted repatriation argues convincingly and conclusively against the existence of favoritism vehemently posited by Raul Lee. At any rate, any contest on the legality of Frivaldo's repatriation should have been pursued before the Committee itself, and, failing there, in the Office of the President, pursuant to the doctrine of exhaustion of administrative remedies.

Third, Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local Government Code "must exist on the date of his election, if not when the certificate of candidacy is filed," citing our decision in G.R. 10465430 which held that "both the Local Government Code and the Constitution require that only Philippine citizens can run and be elected to public office." Obviously, however, this was a mere obiter as the only issue in said case was whether Frivaldo's naturalization was valid or not -- and NOT the effective date thereof. Since the Court held his naturalization to be invalid, then the issue of when an aspirant for public office should be a citizen was NOT resolved at all by the Court. Which question we shall now directly rule on.

Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:

From the above, it will be noted that the law does not specify any particular date or time when the candidate must possess citizenship, unlike that for residence (which must consist of at least one year's residency immediately preceding the day of election) and age (at least twenty three years of age on election day).

Philippine citizenship is an indispensable requirement for holding an elective public office,31 and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Now, an official begins to govern or to discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995 -- the very day32 the term of office of governor (and other elective officials) began -- he was therefore already qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This is the liberal interpretation that should give spirit, life and meaning to our law on qualifications consistent with the purpose for which such law was enacted. So too, even from a literal (as distinguished from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of "Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then should such qualification be required at the time of election or at the time of the filing of the certificates of candidacies, as Lee insists? Literally, such qualifications -- unless otherwise expressly conditioned, as in the case of age and residence -- should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is proclaimed and at the start of his term -- in this case, on June 30, 1995. Paraphrasing this Court's ruling in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the purpose of the citizenship requirement is to ensure that our people and country do not end up being governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead achieved by construing the citizenship qualification as applying to the time of proclamation of the elected official and at the start of his term.

But perhaps the more difficult objection was the one raised during the oral argument34 to the effect that the citizenship qualification should be possessed at the time the candidate (or for that matter the elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen, also specifies as another item of qualification, that he be a "registered voter". And, under the law35 a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter -- much less a validly registered one -- if he was not a citizen at the time of such registration.

The answer to this problem again lies in discerning the purpose of the requirement. If the law intended the citizenship qualification to be possessed prior to election consistent with the requirement of being a registered voter, then it would not have made citizenship a SEPARATE qualification. The law abhors a redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter presumes being a citizen first. It also stands to reason that the voter requirement was included as another qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in the barangay, municipality, city, or province . . . where he intends to be elected." It should be emphasized that the Local Government Code requires an elective official to be a registered voter. It does not require him to vote actually. Hence, registration -- not the actual voting -- is the core of this "qualification". In other words, the law's purpose in this second requirement is to ensure that the prospective official is actually registered in the area he seeks to govern -- and not anywhere else.

Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not disputed -- that he "was and is a registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial declaration . . . In fact, he cast his vote in his precinct on May 8, 1995."36

So too, during the oral argument, his counsel steadfastly maintained that "Mr. Frivaldo has always been a registered voter of Sorsogon. He has voted in 1987, 1988, 1992, then he voted again in 1995. In fact, his eligibility as a voter was questioned, but the court dismissed (sic) his eligibility as a voter and he was allowed to vote as in fact, he voted in all the previous elections including on May 8, 1995."3 7

It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.

There is yet another reason why the prime issue of citizenship should be reckoned from the date of proclamation, not necessarily the date of election or date of filing of the certificate of candidacy. Section 253 of the Omnibus Election Code 38 gives any voter, presumably including the defeated candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the highest number of votes in the immediately preceding elections and such oath had already cured his previous "judicially-declared" alienage. Hence, at such time, he was no longer ineligible.

But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo RETROACTED to the date of the filing of his application on August 17, 1994.

It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no retroactive effect, unless the contrary is provided." But there are settled exceptions40 to this general rule, such as when the statute is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.

According to Tolentino,41 curative statutes are those which undertake to cure errors and irregularities, thereby validating judicial or administrative proceedings, acts of public officers, or private deeds and contracts which otherwise would not produce their intended consequences by reason of some statutory disability or failure to comply with some technical requirement. They operate on conditions already existing, and are necessarily retroactive in operation. Agpalo,42 on the other hand, says that curative statutes are
"healing acts . . . curing defects and adding to the means of enforcing existing obligations . . . (and) are intended to supply defects, abridge superfluities in existing laws, and curb certain evils. . . . By their very nature, curative statutes are retroactive . . . (and) reach back to past events to correct errors or irregularities and to render valid and effective attempted acts which would be otherwise ineffective for the purpose the parties intended."

On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, ordinarily do not come within the legal meaning of a retrospective law, nor within the general rule against the retrospective operation of statutes.43

A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new remedy, thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight of "many Filipino women (who) had lost their Philippine citizenship by marriage to aliens" and who could not, under the existing law (C.A. No. 63, as amended) avail of repatriation until "after the death of their husbands or the termination of their marital status" and who could neither be benefitted by the 1973 Constitution's new provision allowing "a Filipino woman who marries an alien to retain her Philippine citizenship . . ." because "such provision of the new Constitution does not apply to Filipino women who had married aliens before said constitution took effect." Thus, P.D. 725 granted a new right to these women -- the right to re-acquire Filipino citizenship even during their marital coverture, which right did not exist prior to P.D. 725. On the other hand, said statute also provided a new remedy and a new right in favor of other "natural born Filipinos who (had) lost their Philippine citizenship but now desire to re-acquire Philippine citizenship", because prior to the promulgation of P.D. 725 such former Filipinos would have had to undergo the tedious and cumbersome process of naturalization, but with the advent of P.D. 725 they could now re-acquire their Philippine citizenship under the simplified procedure of repatriation.

The Solicitor General44 argues:

In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the legislative intent was precisely to give the statute retroactive operation. "(A) retrospective operation is given to a statute or amendment where the intent that it should so operate clearly appears from a consideration of the act as a whole, or from the terms thereof."45 It is obvious to the Court that the statute was meant to "reach back" to those persons, events and transactions not otherwise covered by prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a political and civil right equally as important as the freedom of speech, liberty of abode, the right against unreasonable searches and seizures and other guarantees enshrined in the Bill of Rights, therefore the legislative intent to give retrospective operation to P.D. 725 must be given the fullest effect possible. "(I)t has been said that a remedial statute must be so construed as to make it effect the evident purpose for which it was enacted, so that if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so applied although the statute does not in terms so direct, unless to do so would impair some vested right or violate some constitutional guaranty."46 This is all the more true of P.D. 725, which did not specify any restrictions on or delimit or qualify the right of repatriation granted therein.

At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo considering that said law was enacted on June 5, 1975, while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and applied for repatriation even later, on August 17, 1994?

While it is true that the law was already in effect at the time that Frivaldo became an American citizen, nevertheless, it is not only the law itself (P.D. 725) which is to be given retroactive effect, but even the repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted to the date of his application therefor, August 17, 1994. The reason for this is simply that if, as in this case, it was the intent of the legislative authority that the law should apply to past events -- i.e., situations and transactions existing even before the law came into being -- in order to benefit the greatest number of former Filipinos possible thereby enabling them to enjoy and exercise the constitutionally guaranteed right of citizenship, and such legislative intention is to be given the fullest effect and expression, then there is all the more reason to have the law apply in a retroactive or retrospective manner to situations, events and transactions subsequent to the passage of such law. That is, the repatriation granted to Frivaldo on June 30, 1995 can and should be made to take effect as of date of his application. As earlier mentioned, there is nothing in the law that would bar this or would show a contrary intention on the part of the legislative authority; and there is no showing that damage or prejudice to anyone, or anything unjust or injurious would result from giving retroactivity to his repatriation. Neither has Lee shown that there will result the impairment of any contractual obligation, disturbance of any vested right or breach of some constitutional guaranty.

Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal interpretation of Philippine laws and whatever defects there were in his nationality should now be deemed mooted by his repatriation.

Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If P.D. 725 were not to be given retroactive effect, and the Special Committee decides not to act, i.e., to delay the processing of applications for any substantial length of time, then the former Filipinos who may be stateless, as Frivaldo -- having already renounced his American citizenship -- was, may be prejudiced for causes outside their control. This should not be. In case of doubt in the interpretation or application of laws, it is to be presumed that the law-making body intended right and justice to prevail.4 7

And as experience will show, the Special Committee was able to process, act upon and grant applications for repatriation within relatively short spans of time after the same were filed.48 The fact that such interregna were relatively insignificant minimizes the likelihood of prejudice to the government as a result of giving retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the government is possible only where a person's repatriation has the effect of wiping out a liability of his to the government arising in connection with or as a result of his being an alien, and accruing only during the interregnum between application and approval, a situation that is not present in the instant case.

And it is but right and just that the mandate of the people, already twice frustrated, should now prevail. Under the circumstances, there is nothing unjust or iniquitous in treating Frivaldo's repatriation as having become effective as of the date of his application, i.e., on August 17, 1994. This being so, all questions about his possession of the nationality qualification -- whether at the date of proclamation (June 30, 1995) or the date of election (May 8, 1995) or date of filing his certificate of candidacy (March 20, 1995) would become moot.

Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be deemed settled. Inasmuch as he is considered as having been repatriated -- i.e., his Filipino citizenship restored -- as of August 17, 1994, his previous registration as a voter is likewise deemed validated as of said date.

It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local position?"49 We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American citizenship -- long before May 8, 1995. At best, Frivaldo was stateless in the interim -- when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship."50

On this point, we quote from the assailed Resolution dated December 19, 1995:51

These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or
abuse.52

Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second Division in SPA No. 95-028 as affirmed in toto by Comelec En Banc in its Resolution of May 11, 1995 "became final and executory after five (5) days or on May 17, 1995, no restraining order having been issued by this Honorable Court.54 Hence, before Lee "was proclaimed as the elected governor on June 30, 1995, there was already a final and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo now concedes were legally "correct") declaring Frivaldo an alien have also become final and executory way before the 1995 elections, and these "judicial pronouncements of his political status as an American citizen absolutely and for all time disqualified (him) from running for, and holding any public office in the Philippines."

We do not agree.

It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in connection with the 1988 elections while that in G.R. No. 104654 was in connection with the 1992 elections. That he was disqualified for such elections is final and can no longer be changed. In the words of the respondent Commission (Second Division) in its assailed Resolution:55

Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status with finality. This is because a person may subsequently reacquire, or for that matter lose, his citizenship under any of the modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of Immigration,56 we held:

Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-317 because the only "possible types of proceedings that may be entertained by the Comelec are a pre-proclamation case, an election protest or a quo warranto case". Again, Lee reminds us that he was proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation only on July 6, 1995 -- "beyond the 5-day reglementary period." Hence, according to him, Frivaldo's "recourse was to file either an election protest or a quo warranto action."

This argument is not meritorious. The Constitution57 has given the Comelec ample power to "exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective . . . provincial . . . officials." Instead of dwelling at length on the various petitions that Comelec, in the exercise of its constitutional prerogatives, may entertain, suffice it to say that this Court has invariably recognized the Commission's authority to hear and decide petitions for annulment of proclamations -- of which SPC No. 95-317 obviously is one.58 Thus, in Mentang vs. COMELEC,59 we ruled:

The Court however cautioned that such power to annul a proclamation must "be done within ten (10) days following the proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is no question that the Comelec correctly acquired jurisdiction over the same.

Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons:

First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains that he (Lee) was not the choice of the sovereign will," and in Aquino vs. COMELEC,61 Lee is "a second placer, . . . just that, a second placer."

In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the aforesaid Labo62 case, as follows:

But such holding is qualified by the next paragraph, thus:

The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case because Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the Comelec's cancellation of his certificate of candidacy was not yet final on election day as there was in both cases a pending motion for reconsideration, for which reason Comelec issued an (omnibus) resolution declaring that Frivaldo (like Labo in 1992) and several others can still be voted for in the May 8, 1995 election, as in fact, he was.

Furthermore, there has been no sufficient evidence presented to show that the electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such awareness within the realm of notoriety;" in other words, that the voters intentionally wasted their ballots knowing that, in spite of their voting for him, he was ineligible. If Labo has any relevance at all, it is that the vice-governor -- and not Lee -- should be pro- claimed, since in losing the election, Lee was, to paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is the emphatic teaching of Labo:

Second. As we have earlier declared Frivaldo to have seasonably reacquired his citizenship and inasmuch as he obtained the highest number of votes in the 1995 elections, he -- not Lee -- should be proclaimed. Hence, Lee's proclamation was patently erroneous and should now be corrected.

In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division) dated May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of citizenship should be annulled because they were rendered beyond the fifteen (15) day period prescribed by Section 78, of the Omnibus Election Code which reads as follows:

This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the subsequent ones issued by the Commission (First Division) on December 19, 1995, affirmed en banc63 on February 23, 1996; which both upheld his election. At any rate, it is obvious that Section 78 is merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for disqualifications even after the elections, thus:

In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President Aquino's memorandum dated March 27, 1987 should be viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But whether it decrees a suspension or a repeal is a purely academic distinction because the said issuance is not a statute that can amend or abrogate an existing law.
The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case;64 viz., "(u)nder CA No. 63 as amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by . . . repatriation". He also contends that by allowing Frivaldo to register and to remain as a registered voter, the Comelec and in effect this Court abetted a "mockery" of our two previous judgments declaring him a non-citizen. We do not see such abetting or mockery. The retroactivity of his repatriation, as discussed earlier, legally cured whatever defects there may have been in his registration as a voter for the purpose of the 1995 elections. Such retroactivity did not change his disqualifications in 1988 and 1992, which were the subjects of such previous rulings.

Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility of a candidate, citing the Comelec's authority under Section 78 of the Omnibus Election Code allowing the denial of a certificate of candidacy on the ground of a false material representation therein as required by Section 74. Citing Loong, he then states his disagreement with our holding that Section 78 is merely directory. We really have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No. 120295 that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid because they were issued "not later than fifteen days before the election" as prescribed by Section 78. In dismissing the petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse of discretion because "Section 6 of R.A. 6646 authorizes the Comelec to try and decide disqualifications even after the elections." In spite of his disagreement with us on this point, i.e., that Section 78 "is merely directory", we note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295". One other point. Loong, as quoted in the dissent, teaches that a petition to deny due course under Section 78 must be filed within the 25-day period prescribed therein. The present case however deals with the period during which the Comelec may decide such petition. And we hold that it may be decided even after the fifteen day period mentioned in Section 78. Here, we rule that a decision promulgated by the Comelec even after the elections is valid but Loong held that a petition filed beyond the 25-day period is out of time. There is no inconsistency nor conflict.

Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual circumstances of Frivaldo, repatriation may be given retroactive effect. He argues that such retroactivity "dilutes" our holding in the first Frivaldo case. But the first (and even the second Frivaldo) decision did not directly involve repatriation as a mode of acquiring citizenship. If we may repeat, there is no question that Frivaldo was not a Filipino for purposes of determining his qualifications in the 1988 and 1992 elections. That is settled. But his supervening repatriation has changed his political status -- not in 1988 or 1992, but only in the 1995 elections.

Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation, saying that "informal renunciation or abandonment is not a ground to lose American citizenship". Since our courts are charged only with the duty of determining who are Philippine nationals, we cannot rule on the legal question of who are or who are not Americans. It is basic in international law that a State determines ONLY those who are its own citizens -- not who are the citizens of other countries.65 The issue here is: the Comelec made a finding of fact that Frivaldo was stateless and such finding has not been shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such finding is binding and final.

The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three previous elections, should be declared winner because "Frivaldo's ineligibility for being an American was publicly known". First, there is absolutely no empirical evidence for such "public" knowledge. Second, even if there is, such knowledge can be truepost facto only of the last two previous elections. Third, even the Comelec and now this Court were/are still deliberating on his nationality before, during and after the 1995 elections. How then can there be such "public" knowledge?

Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications of electivelocal officials, i.e., candidates, and not elected officials, and that the citizenship qualification [under par. (a) of that section] must be possessed by candidates, not merely at the commencement of the term, but by election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of "elective local official" while par. (b) to (f) refer to "candidates". If the qualifications under par. (a) were intended to apply to "candidates" and not elected officials, the legislature would have said so, instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if Congress had meant that the citizenship qualification should be possessed at election day or prior thereto, it would have specifically stated such detail, the same way it did in pars. (b) to (f) far other qualifications of candidates for governor, mayor, etc.

Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the ground, among others, that the law specifically provides that it is only after taking the oath of allegiance that applicants shall be deemed to have reacquired Philippine citizenship. We do not question what the provision states. We hold however that the provision should be understood thus: that after taking the oath of allegiance the applicant is deemed to have reacquired Philippine citizenship, which reacquisition (or repatriation) is deemed for all purposes and intents to have retroacted to the date of his application therefor.

In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference to Section 39 of the Local Authority Code, as well as regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725 suggest non-retroactivity, were already taken up rather extensively earlier in this Decision.

Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule of Law." We agree -- we must all follow the rule of law. But that is NOT the issue here. The issue is how should the law be interpreted and applied in this case so it can be followed, so it can rule!

At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws relating to elections: literal or liberal; the letter or the spirit, the naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of the voters' obvious choice. In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms. Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute unmitigated judicial tyranny and an unacceptable assault upon this Court's conscience.

In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an elective official at the latest as of the time he is proclaimed and at the start of the term of office to which he has been elected. We further hold P.D. No. 725 to be in full force and effect up to the present, not having been suspended or repealed expressly nor impliedly at any time, and Frivaldo's repatriation by virtue thereof to have been properly granted and thus valid and effective. Moreover, by reason of the remedial or curative nature of the law granting him a new right to resume his political status and the legislative intent behind it, as well as his unique situation of having been forced to give up his citizenship and political aspiration as his means of escaping a regime he abhorred, his repatriation is to be given retroactive effect as of the date of his application therefor, during the pendency of which he was stateless, he having given up his U.S. nationality. Thus, in contemplation of law, he possessed the vital requirement of Filipino citizenship as of the start of the term of office of governor, and should have been proclaimed instead of Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17, 1994, his registration as a voter of Sorsogon is deemed to have been validated as of said date as well. The foregoing, of course, are precisely consistent with our holding that lack of the citizenship requirement is not a continuing disability or disqualification to run for and hold public office. And once again, we emphasize herein our previous rulings recognizing the Comelec's authority and jurisdiction to hear and decide petitions for annulment of proclamations.

This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect to the manifest will of our people,66 for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held:

The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference to the popular will. Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic68 to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people, would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. In this undertaking, Lee has miserably failed.

In Frivaldo's case. it would have been technically easy to find fault with his cause. The Court could have refused to grant retroactivity to the effects of his repatriation and hold him still ineligible due to his failure to show his citizenship at the time he registered as a voter before the 1995 elections. Or, it could have disputed the factual findings of the Comelec that he was stateless at the time of repatriation and thus hold his consequent dual citizenship as a disqualification "from running for any elective local position." But the real essence of justice does not emanate from quibblings over patchwork legal technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as a brick in the ultimate development of the social edifice. Thus, the Court struggled against and eschewed the easy, legalistic, technical and sometimes harsh anachronisms of the law in order to evoke substantial justice in the larger social context consistent with Frivaldo's unique situation approximating venerability in Philippine political life. Concededly, he sought American citizenship only to escape the clutches of the dictatorship. At this stage, we cannot seriously entertain any doubt about his loyalty and dedication to this country. At the first opportunity, he returned to this land, and sought to serve his people once more. The people of Sorsogon overwhelmingly voted for him three times. He took an oath of allegiance to this Republic every time he filed his certificate of candidacy and during his failed naturalization bid. And let it not be overlooked, his demonstrated tenacity and sheer determination to re-assume his nationality of birth despite several legal set-backs speak more loudly, in spirit, in fact and in truth than any legal technicality, of his consuming intention and burning desire to re-embrace his native Philippines even now at the ripe old age of 81 years. Such loyalty to and love of country as well as nobility of purpose cannot be lost on this Court of justice and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was assured of a life of ease and plenty as a citizen of the most powerful country in the world. But he opted, nay, single-mindedly insisted on returning to and serving once more his struggling but beloved land of birth. He therefore deserves every liberal interpretation of the law which can be applied in his favor. And in the final analysis, over and above Frivaldo himself, the indomitable people of Sorsogon most certainly deserve to be governed by a leader of their overwhelming choice.

WHEREFORE, in consideration of the foregoing:

(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the respondent Commission are AFFIRMED.

(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it has no merit.

No costs.

SO ORDERED.

Melo, Vitug and Kapunan, JJ., concurs in the result.

Narvasa, C.J. and Mendoza, J., took no part.

Separate Opinions

PUNO, J., concurring:

I concur with the path-breaking ponencia of Mr. Justice Panganiban which is pro-people and pierces the myopia of legalism. Upholding the sovereign will of the people which is the be-all and the end-all of republicanism, it rests on a foundation that will endure time and its tempest.

The sovereignty of our people is the primary postulate of the 1987 Constitution. For this reason, it appears as thefirst in our declaration of principles and state policies. Thus, section 1 of Article II of our fundamental law proclaims that "[t]he Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them." The same principle served as the bedrock of our 1973 and 1935 Constitutions.1 It is one of the few principles whose truth has been cherished by the Americans as self-evident. Section 4, Article IV of the U.S. Constitution makes it a duty of the Federal government to guarantee to every state a "republican form of government." With understandable fervor, the American authorities imposed republicanism as the cornerstone of our 1935 Constitution then being crafted by its Filipino framers.2

Borne out of the 1986 people power EDSA revolution, our 1987 Constitution is more people-oriented. Thus, section 4 of Article II provides as a state policy that the prime duty of the Government is "to serve and protect the people." Section 1, Article XI also provides that ". . . public officers . . . must at all times be accountable to the people . . ." Sections 15 and 1 of Article XIII define the role and rights of people's organizations. Section 5(2) of Article XVI mandates that "[t]he state shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty." And section 2 of Article XVII provides that "amendments to
this Constitution may likewise be directly proposed by the people through initiative . . ." All these provisions and more are intended to breathe more life to the sovereignty of our people.

In our Constitution, the people established a representative democracy as distinguished from a pure democracy. Justice Isagani Cruz explains:8

I appreciate the vigorous dissent of Mr. Justice Davide. I agree that sovereignty is indivisible but it need not always be exercised by the people together, all the time.9 For this reason, the Constitution and our laws provide when the entire electorate or only some of them can elect those who make our laws and those who execute our laws. Thus, the entire electorate votes for our senators but only our district electorates vote for our congressmen, only our provincial electorates vote for the members of our provincial boards, only our city electorates vote for our city councilors, and only our municipal electorates vote for our councilors. Also, the entire electorate votes for our President and Vice-President but only our provincial electorates vote for our governors, only our city electorates vote for our mayors, and only our municipal electorates vote for our mayors. By defining and delimiting the classes of voters who can exercise the sovereignty of the people in a given election, it cannot be claimed that said sovereignty has been fragmented.

It is my respectful submission that the issue in the case at bar is not whether the people of Sorsogon should be given the right to defy the law by allowing Frivaldo to sit as their governor. Rather, the issue is: whether the will of the voters of Sorsogon clearly choosing Frivaldo as governor ought to be given a decisive value considering the uncertainty of the law on when a candidate ought to satisfy the qualification of citizenship. The uncertainty of law and jurisprudence, both here and abroad, on this legal issue cannot be denied. In the United States, 10 there are two (2) principal schools of thought on the matter. One espouses the view that a candidate must possess the qualifications for office at the time of his election. The other ventures the view that the candidate should satisfy the qualifications at the time he assumes the powers of the office. I am unaware of any Philippine decision that has squarely resolved this difficult question of law. The ponencia of Mr. Justice Panganiban adhered to the second school of thought while Mr. Justice Davide dissents.

I emphasize the honest-to-goodness difference in interpreting our law on the matter for this is vital to dispel the fear of Mr. Justice Davide that my opinion can bring about ill effects to the State. Mr. Justice Davide's fear is based on the assumption that Frivaldo continues to be disqualified and we cannot allow him to sit as governor without transgressing the law. I do not concede this assumption for as stressed above, courts have been sharply divided by this mind boggling issue. Given this schism, I do not see how we can derogate on the sovereignty of the people by according more weight to the votes of the people of Sorsogon.

Mr. Justice Davide warns that should the people of Batanes stage a rebellion, we cannot prosecute them "because of the doctrine of people's sovereignty." With due respect, the analogy is not appropriate. In his hypothetical case, rebellion is concededly a crime, a violation of Article 134 of the Revised Penal Code, an offense against the sovereignty of our people. In the case at bar, it cannot be held with certitude that the people of Sorsogon violated the law by voting for Frivaldo as governor. Frivaldo's name was in the list of candidates allowed by COMELEC to run for governor. At that time too, Frivaldo was taking all steps to establish his Filipino citizenship. And even our jurisprudence has not settled the issue when a candidate should possess the qualification of citizenship. Since the meaning of the law is arguable then and now, I cannot imagine how it will be disastrous for the State if we tilt the balance in the case at bar in favor of the people of Sorsogon.

In sum, I respectfully submit that the sovereign will of our people should be resolutory of the case at bar which is one of its kind, unprecedented in our political history. For three (3) times, Frivaldo ran as governor of the province of Sorsogon. For two (2) times, he was disqualified on the ground of citizenship. The people of Sorsogon voted for him as their governor despite his disqualification. The people never waffled in their support for Frivaldo. In 1988, they gave him a winning margin of 27,000; in 1992, they gave him a winning spread of 57,000; in 1995, he posted a margin of 20,000. Clearly then, Frivaldo is the overwhelming choice of the people of Sorsogon. In election cases, we should strive to align the will of the legislature as expressed in its law with the will of the sovereign people as expressed in their ballots. For law to reign, it must respect the will of the people. For in the eloquent prose of Mr. Justice Laurel, ". . . an enfranchised citizen is a particle of popular sovereignty and is the ultimate source of established authority."11 The choice of the governed on who shall be their governor merits the highest consideration by all agencies of government. In cases where the sovereignty of the people is at stake, we must not only be legally right but also politically correct. We cannot fail by making the people succeed.

DAVIDE, JR., J., dissenting:

After deliberating on the re-formulated issues and the conclusions reached by my distinguished colleague, Mr. Justice Artemio V. Panganiban, I find myself unable to join him.

I agree with petitioner Lee that Frivaldo's repatriation was void, but not on the ground that President Corazon C. Aquino's 27 March 1987 memorandum "effectively repealed" P.D. No. 725. In my view, the said memorandum only suspended the implementation of the latter decree by divesting the Special Committee on Naturalization of its authority to further act on grants of citizenship under LOI No. 270, as amended, P.D. No. 836, as amended; P.D. No. 1379; and "any other related laws, orders, issuances and rules and regulations." A reading of the last paragraph of the memorandum can lead to no other conclusion, thus:

It is self-evident that the underscored clause can only refer to those related to LOI No. 270, P.D. No. 836, and P.D. No. 1379. There is no doubt in my mind that P.D. No. 725 is one such "related law" as it involves the reacquisition of Philippine citizenship by repatriation and designates the Special Committee on Naturalization created under LOI No. 270 to receive and act on (i.e., approve or disapprove) applications under the said decree. The power of President Aquino to suspend these issuances by virtue of the 27 March 1987 memorandum is beyond question considering that under Section 6, Article XVIII of the 1987 Constitution, she exercised legislative power until the Congress established therein convened on the fourth Monday of July 1987.

I disagree with the view expressed in the ponencia that the memorandum of 27 March 1987 was merely a declaration of "executive policy," and not an exercise of legislative power. LOI No. 270, P.D. No. 836, P.D. No. 1379 and "any other related laws," such as P.D. No. 725, were issued by President Ferdinand E. Marcos in the exercise of his legislative powers -- not executive power. These laws relate to the acquisition (by naturalization) and reacquisition (by repatriation) of Philippine citizenship, and in light of Sections 1(4) and 3, Article IV of the 1987 Constitution (naturalization and reacquisition of Philippine citizenship shall be in accordance with law), it is indubitable that these subjects are a matter of legislative prerogative. In the same vein, the creation of the Special Committee on Naturalization by LOI No. 270 and the conferment of the power to accept and act on applications under P.D. No. 725 are clearly legislative acts.

Accordingly, the revocation of the cease and desist order and the reactivation or revival of the Committee can be done only by legislative fiat, i.e., by Congress, since the President had long lost his authority to exercise "legislative power." Considering that Congress has not seen it fit to do so, the President cannot, in the exercise of executive power, lift the cease and desist order nor reactivate/reconstitute/revive the Committee. A multo fortiori, the Committee cannot validly accept Frivaldo's application for repatriation and approve it.

Even assuming arguendo that Frivaldo's repatriation is valid, it did not "cure his lack of citizenship." I depart from the view in the ponencia that Section 39 of the Local Government Code of 1991 does not specify the time when the citizenship requirement must be met, and that being the case, then it suffices that citizenship be possessed upon commencement of the term of the office involved; therefore, since Frivaldo "re-assumed" his Philippine citizenship at 2:00 p.m. on 30 June 1995 and the term of office of Governor commenced at 12:00 noon of that day, he had, therefore, complied with the citizenship requirement.

In the first place, Section 39 actually prescribes the qualifications of elective local officials and not those of an elected local official. These adjectives are not synonymous, as the ponencia seems to suggest. The first refers to the nature of the office, which requires the process of voting by the electorate involved; while the second refers to a victorious candidate for an elective office. The section unquestionably refers to elective -- not elected -- local officials. It falls under Title Two entitled ELECTIVE OFFICIALS; under Chapter 1 entitled Qualifications and Election; and paragraph (a) thereof begins with the phrase "An elective local official," while paragraphs (b) to (f) thereof speak of candidates. It reads as follows:

For another, it is not at all true that Section 39 does not specify the time when the citizenship requirement must be possessed. I submit that the requirement must be satisfied, or that Philippine citizenship must be possessed, not merely at the commencement of the term, but at an earlier time, the latest being election day itself. Section 39 is not at all ambiguous nor uncertain that it meant this to be, as one basic qualification of an elective local official is that he be "A REGISTERED VOTER IN THE BARANGAY, MUNICIPALITY, CITY OR PROVINCE . . . WHERE HE INTENDS TO VOTE." This simply means that he possesses all the qualifications to exercise the right of suffrage. The fundamental qualification for the exercise of this sovereign right is the possession of Philippine citizenship. No less than the Constitution makes it the first qualification, as Section 1, Article V thereof provides:

It is undisputed that this Court twice voided Frivaldo's election as Governor in the 1988 and 1992 elections on the ground that for lack of Philippine citizenship -- he being a naturalized citizen of the United States of America -- he was DISQUALIFIED to be elected as such and to serve the position (Frivaldo vs. Commission on Elections, 174 SCRA 245 [1989]; Republic of the Philippines vs. De la Rosa, 232 SCRA 785 [1994]). This disqualification inexorably nullified Frivaldo's registration as a voter and declared it void ab initio. Our judgments therein were self-executory and no further act, e.g., a COMELEC order to cancel his registration as a voter or the physical destruction of his voter's certificate, was necessary for the ineffectivity. Thus, he was never considered a registered voter for the elections of May 1992, and May 1995, as there is no showing that Frivaldo registered anew as a voter for the latter elections. Even if he did -- in obvious defiance of his decreed disqualification -- this did not make him a Filipino citizen, hence it was equally void ab initio. That he filed his certificate of candidacy for the 1995 elections and was even allowed to vote therein were of no moment. Neither act made him a Filipino citizen nor nullified the judgments of this Court. On the contrary, said acts made a mockery of our judgments. For the Court now to validate Frivaldo's registration as a voter despite the judgments of disqualification is to modify the said judgments by making their effectivity and enforceability dependent on a COMELEC order cancelling his registration as a voter, or on the physical destruction of his certificate of registration as a voter which, of course, was never our intention. Moreover, to sanction Frivaldo's registration as a voter would be to sacrifice substance in favor of form (the piece of paper that is the book of voters or list of voters or voter's ID), and abet the COMELEC's incompetence in failing to cancel Frivaldo's registration and allowing him to vote.

The second reason in the ponencia as to why the citizenship disqualification should be reckoned not from the date of the election nor the filing of the certificate of candidacy, but from the date of proclamation, is that the only available remedy to question the ineligibility (or disloyalty) of a candidate is a petition for quo warranto which, under Section 253 of the Omnibus Election Code, may be filed only within ten days from proclamation and not earlier.

I beg to differ.

Clearly, quo warranto is not the sole remedy available to question a candidate's ineligibility for public office. Section 78 of the Omnibus Election Code allows the filing of a petition to deny due course to or cancel the certificate of candidacy on the ground that any material representation contained therein, as required by Section 74, is false. Section 74, in turn, requires that the person filing the certificate of candidacy must state, inter alia, that he is eligible for the office, which means that he has all the qualifications (including, of course, fulfilling the citizenship requirement) and none of the disqualifications as provided by law. The petition under Section 78 may be filed at any time not later than 25 days from the filing of the certificate of candidacy. The section reads in full as follows:

Likewise, Rule 25 of the Revised COMELEC Rules of Procedure allows the filing of a petition for disqualification on the ground of failure to possess all the qualifications of a candidate as provided by the Constitution or by existing laws, "any day after the last day for filing of certificates of candidacy but not later than the date of proclamation." Sections 1 and 3 thereof provide:

In this connection, it would seem appropriate to take up the last issue grappled within the ponencia, viz., is Section 78 of the Omnibus Election Code mandatory? The answer is provided in Loong.

I then disagree with the asseveration in the ponencia that Section 78 is merely directory because Section 6 of R.A. No. 6646 authorizes the COMELEC to try and decide petitions for disqualification even after elections. I submit that Section 6 refers to disqualifications under Sections 12 and 68 of the Omnibus Election Code and consequently modifies Section 72 thereof. As such, the proper court or the COMELEC are granted the authority to continue hearing the case after the election, and during the pendency of the case, suspend the proclamation of the victorious candidate, if the evidence against him is strong. Sections 12, 68, and 72 of the Code provide:

Still assuming that the repatriation is valid, I am not persuaded by the arguments in support of the thesis that Frivaldo's repatriation may be given retroactive effect, as such goes against the spirit and letter of P.D. No. 725. The spirit adheres to the principle that acquisition or re-acquisition of Philippine citizenship is not a right, but a mere privilege. Before the advent of P.D. No. 725, only the following could apply for repatriation: (a) Army, Navy, or Air Corps deserters; and (b) a woman who lost her citizenship by reason of her marriage to an alien after the death of her spouse (Section 2[2], C.A. No. 63). P.D. NO. 725 expanded this to include Filipino women who lost their Philippine citizenship by marriage to aliens even before the death of their alien husbands, or the termination of their marital status and to natural-born Filipino citizens who lost their Philippine citizenship but subsequently desired to reacquire the latter.

Turning now to the letter of the law, P.D. No. 725 expressly provides that repatriation takes effect only after taking the oath of allegiance to the Republic of the Philippines, thus:

This theory in the ponencia likewise dilutes this Court's pronouncement in the first Frivaldo case that what reacquisition of Filipino citizenship requires is an act "formally rejecting [the] adopted state and reaffirming . . . allegiance to the Philippines." That act meant nothing less than taking of the oath of allegiance to the Republic of the Philippines. If we now take this revision of doctrine to its logical end, then it would also mean that if Frivaldo had chosen and reacquired Philippine citizenship by naturalization or through Congressional action, such would retroact to the filing of the petition for naturalization or the bill granting him Philippine citizenship. This is a proposition which both the first and second Frivaldo cases soundly rejected.

The other reason adduced in the ponencia in support of the proposition that P.D. No. 725 can be given retroactive effect is its alleged curative or remedial nature.

Again, I disagree. In the first place, by no stretch of legal hermeneutics may P.D. No. 725 be characterized as a curative or remedial statute:

P.D. No. 725 provides for the reacquisition of Philippine citizenship lost through the marriage of a Filipina to an alien and through naturalization in a foreign country of natural-born Filipino citizens. It involves then the substantive, nay primordial, right of citizenship. To those for whom it is intended, it means, in reality, the acquisition of "a new right," as the ponencia cannot but concede. Therefore, it may not be said to merely remedy or cure a defect considering that one who has lost Philippine citizenship does not have the right to reacquire it. As earlier stated, the Constitution provides that citizenship, once lost, may only be reacquired in the manner provided by law. Moreover, it has also been observed that:

If we grant for the sake of argument, however, that P.D. No. 725 is curative or remedial statute, it would be an inexcusable error to give it a retroactive effect since it explicitly provides the date of its effectivity. Thus:

Nevertheless, if the retroactivity is to relate only to the reacquisition of Philippine citizenship, then nothing therein supports such theory, for as the decree itself unequivocally provides, it is only after taking the oath of allegiance to the Republic of the Philippines that the applicant is DEEMED TO HAVE REACQUIRED PHILIPPINE CITIZENSHIP.

Assuming yet again, for the sake of argument, that taking the oath of allegiance retroacted to the date of Frivaldo's application for repatriation, the same could not be said insofar as it concerned the United States of America, of which he was a citizen. For under the laws of the United States of America, Frivaldo remained an American national until he renounced his citizenship and allegiance thereto at 2:00 p.m. on 30 June 1995, when he took his oath of allegiance to the Republic of the Philippines. Section 401 of the Nationality Act of 1940 of the United States of America provides that a person who is a national of the United States of America, whether by birth or naturalization, loses his nationality by, inter alia, "(b) Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state" (SIDNEY KANSAS, U.S. Immigration Exclusion and Deportation and Citizenship of the United States of America, Third ed., [1948] 341-342). It follows then that on election day and until the hour of the commencement of the term for which he was elected - noon of 30 June 1995 as per Section 43 of the Local Government Code - Frivaldo possessed dual citizenship, viz., (a) as an American citizen; and (b) as a Filipino citizen through the adoption of the theory that the effects of his taking the oath of allegiance were retrospective. Hence, he was disqualified to run for Governor for yet another reason: possession of dual citizenship, in accordance with Section 40 (d) of the Local Government Code.

The assertion in the ponencia that Frivaldo may be considered STATELESS on the basis of his claim that he "had long renounced and had long abandoned his American citizenship - long before May 8, 1985" - is untenable, for the following reasons: first, it is based on Frivaldo's unproven, self-serving allegation; second, informal renunciation or abandonment is not a ground to lose American citizenship; and third, simply put, never did the status of a STATELESS person attach to Frivaldo.

Statelessness may be either de jure, which is the status of individuals stripped of their nationality by their former government without having an opportunity to acquire another; or de facto, which is the status of individuals possessed of a nationality whose country does not give them protection outside their own country, and who are commonly, albeit imprecisely, referred to as refugees (JORGE R. COQUIA, et al., Conflict of Laws Cases, Materials and Comments, 1995 ed., 290).

Specifically, under Chapter 1, Article 1 of the United Nations Convention Regarding the Status of Stateless Persons (Philippine Treaty Series, Compiled and Annotated by Haydee B. Yorac, vol. III, 363), a stateless person is defined as "a person who is not considered as a national by any State under the operation of its law." However, it has not been shown that the United States of America ever ceased to consider Frivaldo its national at any time before he took his oath of allegiance to the Republic of the Philippines on 30 June 1995.

Finally, I find it in order to also express my view on the concurring opinion of Mr. Justice Reynato S. Puno. I am absolutely happy to join him in his statement that "[t]he sovereignty of our people is the primary postulate of the 1987 Constitution" and that the said Constitution is "more people-oriented,""borne [as it is] out of the 1986 people power EDSA revolution." I would even go further by saying that this Constitution is pro-God (Preamble), pro-people (Article II, Sections 1, 3, 4, 5, 9, 15, 16; Article XI, Section 1, Article XII, Sections 1, 6; Article XIII, Sections 1, 11, 15, 16, 18; Article XVI, Sections 5(2), 6), pro-Filipino (Article XII, Sections 1, 2, 10, 11, 12, 14; Article XIV, Sections 1, 4(2), 13; Article XVI, Section 11), pro-poor (Article II, Sections 9, 10, 18, 21; Article XII, Sections 1, 2(3); Article XIII, Sections 1, 3, 4, 5, 6, 7, 9, 10, 11, 13), pro-life (Article II, Section 12), and pro-family (Article II, Section 12; Article XV).

Nevertheless, I cannot be with him in carrying out the principle of sovereignty beyond what I perceive to be the reasonable constitutional parameters. The doctrine of people's sovereignty is founded on the principles of democracy and republicanism and refers exclusively to the sovereignty of the people of the Philippines. Section 1 of Article II is quite clear on this, thus:

That sovereign power of the Filipino people cannot be fragmentized by looking at it as the supreme authority of the people of any of the political subdivisions to determine their own destiny; neither can we convert and treat every fragment as the whole. In such a case, this Court would provide the formula for the division and destruction of the State and render the Government ineffective and inutile. To illustrate the evil, we may consider the enforcement of laws or the pursuit of a national policy by the executive branch of the government, or the execution of a judgment by the courts. If these are opposed by the overwhelming majority of the people of a certain province, or even a municipality, it would necessarily follow that the law, national policy, or judgment must not be enforced, implemented, or executed in the said province or municipality. More concretely, if, for instance, the vast majority of the people of Batanes rise publicly and take up arms against the Government for the purpose of removing from the allegiance to the said Government or its laws, the territory of the Republic of the Philippines or any part thereof, or any body of land, naval, or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives, then those who did so -- and which are composed of the vast majority of the people of Batanes -- a political subdivision -- cannot be prosecuted for or be held guilty of rebellion in violation of Article 134 of the Revised Penal Code because of the doctrine of peoples' sovereignty. Indeed, the expansion of the doctrine of sovereignty by investing upon the people of a mere political subdivision that which the Constitution places in the entire Filipino people, may be disastrous to the Nation.

So it is in this case if we follow the thesis in the concurring opinion. Thus, simply because Frivaldo had obtained a margin of 20,000 votes over his closest rival, Lee, i.e., a vast majority of the voters of Sorsogon had expressed their sovereign will for the former, then this Court must yield to that will and must, therefore, allow to be set aside, for Frivaldo, not just the laws on qualifications of candidates and elective officials and naturalization and reacquisition of Philippine citizenship, but even the final and binding decisions of this Court affecting him.

This Court must be the first to uphold the Rule of Law. I vote then to DISMISS G.R. No. 120295 and GRANT G.R. No. 123755.

PUNO, J., concurring:

I concur with the path-breaking ponencia of Mr. Justice Panganiban which is pro-people and pierces the myopia of legalism. Upholding the sovereign will of the people which is the be-all and the end-all of republicanism, it rests on a foundation that will endure time and its tempest.

The sovereignty of our people is the primary postulate of the 1987 Constitution. For this reason, it appears as thefirst in our declaration of principles and state policies. Thus, section 1 of Article II of our fundamental law proclaims that "[t]he Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them." The same principle served as the bedrock of our 1973 and 1935 Constitutions.1 It is one of the few principles whose truth has been cherished by the Americans as self-evident. Section 4, Article IV of the U.S. Constitution makes it a duty of the Federal government to guarantee to every state a "republican form of government." With understandable fervor, the American authorities imposed republicanism as the cornerstone of our 1935 Constitution then being crafted by its Filipino framers.2

Borne out of the 1986 people power EDSA revolution, our 1987 Constitution is more people-oriented. Thus, section 4 of Article II provides as a state policy that the prime duty of the Government is "to serve and protect the people." Section 1, Article XI also provides that ". . . public officers . . . must at all times be accountable to the people . . ." Sections 15 and 1 of Article XIII define the role and rights of people's organizations. Section 5(2) of Article XVI mandates that "[t]he state shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty." And section 2 of Article XVII provides that "amendments to
this Constitution may likewise be directly proposed by the people through initiative . . ." All these provisions and more are intended to breathe more life to the sovereignty of our people.

In our Constitution, the people established a representative democracy as distinguished from a pure democracy. Justice Isagani Cruz explains:8

I appreciate the vigorous dissent of Mr. Justice Davide. I agree that sovereignty is indivisible but it need not always be exercised by the people together, all the time.9 For this reason, the Constitution and our laws provide when the entire electorate or only some of them can elect those who make our laws and those who execute our laws. Thus, the entire electorate votes for our senators but only our district electorates vote for our congressmen, only our provincial electorates vote for the members of our provincial boards, only our city electorates vote for our city councilors, and only our municipal electorates vote for our councilors. Also, the entire electorate votes for our President and Vice-President but only our provincial electorates vote for our governors, only our city electorates vote for our mayors, and only our municipal electorates vote for our mayors. By defining and delimiting the classes of voters who can exercise the sovereignty of the people in a given election, it cannot be claimed that said sovereignty has been fragmented.

It is my respectful submission that the issue in the case at bar is not whether the people of Sorsogon should be given the right to defy the law by allowing Frivaldo to sit as their governor. Rather, the issue is: whether the will of the voters of Sorsogon clearly choosing Frivaldo as governor ought to be given a decisive value considering the uncertainty of the law on when a candidate ought to satisfy the qualification of citizenship. The uncertainty of law and jurisprudence, both here and abroad, on this legal issue cannot be denied. In the United States, 10 there are two (2) principal schools of thought on the matter. One espouses the view that a candidate must possess the qualifications for office at the time of his election. The other ventures the view that the candidate should satisfy the qualifications at the time he assumes the powers of the office. I am unaware of any Philippine decision that has squarely resolved this difficult question of law. The ponencia of Mr. Justice Panganiban adhered to the second school of thought while Mr. Justice Davide dissents.

I emphasize the honest-to-goodness difference in interpreting our law on the matter for this is vital to dispel the fear of Mr. Justice Davide that my opinion can bring about ill effects to the State. Mr. Justice Davide's fear is based on the assumption that Frivaldo continues to be disqualified and we cannot allow him to sit as governor without transgressing the law. I do not concede this assumption for as stressed above, courts have been sharply divided by this mind boggling issue. Given this schism, I do not see how we can derogate on the sovereignty of the people by according more weight to the votes of the people of Sorsogon.

Mr. Justice Davide warns that should the people of Batanes stage a rebellion, we cannot prosecute them "because of the doctrine of people's sovereignty." With due respect, the analogy is not appropriate. In his hypothetical case, rebellion is concededly a crime, a violation of Article 134 of the Revised Penal Code, an offense against the sovereignty of our people. In the case at bar, it cannot be held with certitude that the people of Sorsogon violated the law by voting for Frivaldo as governor. Frivaldo's name was in the list of candidates allowed by COMELEC to run for governor. At that time too, Frivaldo was taking all steps to establish his Filipino citizenship. And even our jurisprudence has not settled the issue when a candidate should possess the qualification of citizenship. Since the meaning of the law is arguable then and now, I cannot imagine how it will be disastrous for the State if we tilt the balance in the case at bar in favor of the people of Sorsogon.

In sum, I respectfully submit that the sovereign will of our people should be resolutory of the case at bar which is one of its kind, unprecedented in our political history. For three (3) times, Frivaldo ran as governor of the province of Sorsogon. For two (2) times, he was disqualified on the ground of citizenship. The people of Sorsogon voted for him as their governor despite his disqualification. The people never waffled in their support for Frivaldo. In 1988, they gave him a winning margin of 27,000; in 1992, they gave him a winning spread of 57,000; in 1995, he posted a margin of 20,000. Clearly then, Frivaldo is the overwhelming choice of the people of Sorsogon. In election cases, we should strive to align the will of the legislature as expressed in its law with the will of the sovereign people as expressed in their ballots. For law to reign, it must respect the will of the people. For in the eloquent prose of Mr. Justice Laurel, ". . . an enfranchised citizen is a particle of popular sovereignty and is the ultimate source of established authority."11 The choice of the governed on who shall be their governor merits the highest consideration by all agencies of government. In cases where the sovereignty of the people is at stake, we must not only be legally right but also politically correct. We cannot fail by making the people succeed.

DAVIDE, JR., J., dissenting:

After deliberating on the re-formulated issues and the conclusions reached by my distinguished colleague, Mr. Justice Artemio V. Panganiban, I find myself unable to join him.

I agree with petitioner Lee that Frivaldo's repatriation was void, but not on the ground that President Corazon C. Aquino's 27 March 1987 memorandum "effectively repealed" P.D. No. 725. In my view, the said memorandum only suspended the implementation of the latter decree by divesting the Special Committee on Naturalization of its authority to further act on grants of citizenship under LOI No. 270, as amended, P.D. No. 836, as amended; P.D. No. 1379; and "any other related laws, orders, issuances and rules and regulations." A reading of the last paragraph of the memorandum can lead to no other conclusion, thus:

It is self-evident that the underscored clause can only refer to those related to LOI No. 270, P.D. No. 836, and P.D. No. 1379. There is no doubt in my mind that P.D. No. 725 is one such "related law" as it involves the reacquisition of Philippine citizenship by repatriation and designates the Special Committee on Naturalization created under LOI No. 270 to receive and act on (i.e., approve or disapprove) applications under the said decree. The power of President Aquino to suspend these issuances by virtue of the 27 March 1987 memorandum is beyond question considering that under Section 6, Article XVIII of the 1987 Constitution, she exercised legislative power until the Congress established therein convened on the fourth Monday of July 1987.

I disagree with the view expressed in the ponencia that the memorandum of 27 March 1987 was merely a declaration of "executive policy," and not an exercise of legislative power. LOI No. 270, P.D. No. 836, P.D. No. 1379 and "any other related laws," such as P.D. No. 725, were issued by President Ferdinand E. Marcos in the exercise of his legislative powers -- not executive power. These laws relate to the acquisition (by naturalization) and reacquisition (by repatriation) of Philippine citizenship, and in light of Sections 1(4) and 3, Article IV of the 1987 Constitution (naturalization and reacquisition of Philippine citizenship shall be in accordance with law), it is indubitable that these subjects are a matter of legislative prerogative. In the same vein, the creation of the Special Committee on Naturalization by LOI No. 270 and the conferment of the power to accept and act on applications under P.D. No. 725 are clearly legislative acts.

Accordingly, the revocation of the cease and desist order and the reactivation or revival of the Committee can be done only by legislative fiat, i.e., by Congress, since the President had long lost his authority to exercise "legislative power." Considering that Congress has not seen it fit to do so, the President cannot, in the exercise of executive power, lift the cease and desist order nor reactivate/reconstitute/revive the Committee. A multo fortiori, the Committee cannot validly accept Frivaldo's application for repatriation and approve it.

Even assuming arguendo that Frivaldo's repatriation is valid, it did not "cure his lack of citizenship." I depart from the view in the ponencia that Section 39 of the Local Government Code of 1991 does not specify the time when the citizenship requirement must be met, and that being the case, then it suffices that citizenship be possessed upon commencement of the term of the office involved; therefore, since Frivaldo "re-assumed" his Philippine citizenship at 2:00 p.m. on 30 June 1995 and the term of office of Governor commenced at 12:00 noon of that day, he had, therefore, complied with the citizenship requirement.

In the first place, Section 39 actually prescribes the qualifications of elective local officials and not those of an elected local official. These adjectives are not synonymous, as the ponencia seems to suggest. The first refers to the nature of the office, which requires the process of voting by the electorate involved; while the second refers to a victorious candidate for an elective office. The section unquestionably refers to elective -- not elected -- local officials. It falls under Title Two entitled ELECTIVE OFFICIALS; under Chapter 1 entitled Qualifications and Election; and paragraph (a) thereof begins with the phrase "An elective local official," while paragraphs (b) to (f) thereof speak of candidates. It reads as follows:

For another, it is not at all true that Section 39 does not specify the time when the citizenship requirement must be possessed. I submit that the requirement must be satisfied, or that Philippine citizenship must be possessed, not merely at the commencement of the term, but at an earlier time, the latest being election day itself. Section 39 is not at all ambiguous nor uncertain that it meant this to be, as one basic qualification of an elective local official is that he be "A REGISTERED VOTER IN THE BARANGAY, MUNICIPALITY, CITY OR PROVINCE . . . WHERE HE INTENDS TO VOTE." This simply means that he possesses all the qualifications to exercise the right of suffrage. The fundamental qualification for the exercise of this sovereign right is the possession of Philippine citizenship. No less than the Constitution makes it the first qualification, as Section 1, Article V thereof provides:

It is undisputed that this Court twice voided Frivaldo's election as Governor in the 1988 and 1992 elections on the ground that for lack of Philippine citizenship -- he being a naturalized citizen of the United States of America -- he was DISQUALIFIED to be elected as such and to serve the position (Frivaldo vs. Commission on Elections, 174 SCRA 245 [1989]; Republic of the Philippines vs. De la Rosa, 232 SCRA 785 [1994]). This disqualification inexorably nullified Frivaldo's registration as a voter and declared it void ab initio. Our judgments therein were self-executory and no further act, e.g., a COMELEC order to cancel his registration as a voter or the physical destruction of his voter's certificate, was necessary for the ineffectivity. Thus, he was never considered a registered voter for the elections of May 1992, and May 1995, as there is no showing that Frivaldo registered anew as a voter for the latter elections. Even if he did -- in obvious defiance of his decreed disqualification -- this did not make him a Filipino citizen, hence it was equally void ab initio. That he filed his certificate of candidacy for the 1995 elections and was even allowed to vote therein were of no moment. Neither act made him a Filipino citizen nor nullified the judgments of this Court. On the contrary, said acts made a mockery of our judgments. For the Court now to validate Frivaldo's registration as a voter despite the judgments of disqualification is to modify the said judgments by making their effectivity and enforceability dependent on a COMELEC order cancelling his registration as a voter, or on the physical destruction of his certificate of registration as a voter which, of course, was never our intention. Moreover, to sanction Frivaldo's registration as a voter would be to sacrifice substance in favor of form (the piece of paper that is the book of voters or list of voters or voter's ID), and abet the COMELEC's incompetence in failing to cancel Frivaldo's registration and allowing him to vote.

The second reason in the ponencia as to why the citizenship disqualification should be reckoned not from the date of the election nor the filing of the certificate of candidacy, but from the date of proclamation, is that the only available remedy to question the ineligibility (or disloyalty) of a candidate is a petition for quo warranto which, under Section 253 of the Omnibus Election Code, may be filed only within ten days from proclamation and not earlier.

I beg to differ.

Clearly, quo warranto is not the sole remedy available to question a candidate's ineligibility for public office. Section 78 of the Omnibus Election Code allows the filing of a petition to deny due course to or cancel the certificate of candidacy on the ground that any material representation contained therein, as required by Section 74, is false. Section 74, in turn, requires that the person filing the certificate of candidacy must state, inter alia, that he is eligible for the office, which means that he has all the qualifications (including, of course, fulfilling the citizenship requirement) and none of the disqualifications as provided by law. The petition under Section 78 may be filed at any time not later than 25 days from the filing of the certificate of candidacy. The section reads in full as follows:

Likewise, Rule 25 of the Revised COMELEC Rules of Procedure allows the filing of a petition for disqualification on the ground of failure to possess all the qualifications of a candidate as provided by the Constitution or by existing laws, "any day after the last day for filing of certificates of candidacy but not later than the date of proclamation." Sections 1 and 3 thereof provide:

In this connection, it would seem appropriate to take up the last issue grappled within the ponencia, viz., is Section 78 of the Omnibus Election Code mandatory? The answer is provided in Loong.

I then disagree with the asseveration in the ponencia that Section 78 is merely directory because Section 6 of R.A. No. 6646 authorizes the COMELEC to try and decide petitions for disqualification even after elections. I submit that Section 6 refers to disqualifications under Sections 12 and 68 of the Omnibus Election Code and consequently modifies Section 72 thereof. As such, the proper court or the COMELEC are granted the authority to continue hearing the case after the election, and during the pendency of the case, suspend the proclamation of the victorious candidate, if the evidence against him is strong. Sections 12, 68, and 72 of the Code provide:

Still assuming that the repatriation is valid, I am not persuaded by the arguments in support of the thesis that Frivaldo's repatriation may be given retroactive effect, as such goes against the spirit and letter of P.D. No. 725. The spirit adheres to the principle that acquisition or re-acquisition of Philippine citizenship is not a right, but a mere privilege. Before the advent of P.D. No. 725, only the following could apply for repatriation: (a) Army, Navy, or Air Corps deserters; and (b) a woman who lost her citizenship by reason of her marriage to an alien after the death of her spouse (Section 2[2], C.A. No. 63). P.D. NO. 725 expanded this to include Filipino women who lost their Philippine citizenship by marriage to aliens even before the death of their alien husbands, or the termination of their marital status and to natural-born Filipino citizens who lost their Philippine citizenship but subsequently desired to reacquire the latter.

Turning now to the letter of the law, P.D. No. 725 expressly provides that repatriation takes effect only after taking the oath of allegiance to the Republic of the Philippines, thus:

This theory in the ponencia likewise dilutes this Court's pronouncement in the first Frivaldo case that what reacquisition of Filipino citizenship requires is an act "formally rejecting [the] adopted state and reaffirming . . . allegiance to the Philippines." That act meant nothing less than taking of the oath of allegiance to the Republic of the Philippines. If we now take this revision of doctrine to its logical end, then it would also mean that if Frivaldo had chosen and reacquired Philippine citizenship by naturalization or through Congressional action, such would retroact to the filing of the petition for naturalization or the bill granting him Philippine citizenship. This is a proposition which both the first and second Frivaldo cases soundly rejected.

The other reason adduced in the ponencia in support of the proposition that P.D. No. 725 can be given retroactive effect is its alleged curative or remedial nature.

Again, I disagree. In the first place, by no stretch of legal hermeneutics may P.D. No. 725 be characterized as a curative or remedial statute:

P.D. No. 725 provides for the reacquisition of Philippine citizenship lost through the marriage of a Filipina to an alien and through naturalization in a foreign country of natural-born Filipino citizens. It involves then the substantive, nay primordial, right of citizenship. To those for whom it is intended, it means, in reality, the acquisition of "a new right," as the ponencia cannot but concede. Therefore, it may not be said to merely remedy or cure a defect considering that one who has lost Philippine citizenship does not have the right to reacquire it. As earlier stated, the Constitution provides that citizenship, once lost, may only be reacquired in the manner provided by law. Moreover, it has also been observed that:

If we grant for the sake of argument, however, that P.D. No. 725 is curative or remedial statute, it would be an inexcusable error to give it a retroactive effect since it explicitly provides the date of its effectivity. Thus:

Nevertheless, if the retroactivity is to relate only to the reacquisition of Philippine citizenship, then nothing therein supports such theory, for as the decree itself unequivocally provides, it is only after taking the oath of allegiance to the Republic of the Philippines that the applicant is DEEMED TO HAVE REACQUIRED PHILIPPINE CITIZENSHIP.

Assuming yet again, for the sake of argument, that taking the oath of allegiance retroacted to the date of Frivaldo's application for repatriation, the same could not be said insofar as it concerned the United States of America, of which he was a citizen. For under the laws of the United States of America, Frivaldo remained an American national until he renounced his citizenship and allegiance thereto at 2:00 p.m. on 30 June 1995, when he took his oath of allegiance to the Republic of the Philippines. Section 401 of the Nationality Act of 1940 of the United States of America provides that a person who is a national of the United States of America, whether by birth or naturalization, loses his nationality by, inter alia, "(b) Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state" (SIDNEY KANSAS, U.S. Immigration Exclusion and Deportation and Citizenship of the United States of America, Third ed., [1948] 341-342). It follows then that on election day and until the hour of the commencement of the term for which he was elected - noon of 30 June 1995 as per Section 43 of the Local Government Code - Frivaldo possessed dual citizenship, viz., (a) as an American citizen; and (b) as a Filipino citizen through the adoption of the theory that the effects of his taking the oath of allegiance were retrospective. Hence, he was disqualified to run for Governor for yet another reason: possession of dual citizenship, in accordance with Section 40 (d) of the Local Government Code.

The assertion in the ponencia that Frivaldo may be considered STATELESS on the basis of his claim that he "had long renounced and had long abandoned his American citizenship - long before May 8, 1985" - is untenable, for the following reasons: first, it is based on Frivaldo's unproven, self-serving allegation; second, informal renunciation or abandonment is not a ground to lose American citizenship; and third, simply put, never did the status of a STATELESS person attach to Frivaldo.

Statelessness may be either de jure, which is the status of individuals stripped of their nationality by their former government without having an opportunity to acquire another; or de facto, which is the status of individuals possessed of a nationality whose country does not give them protection outside their own country, and who are commonly, albeit imprecisely, referred to as refugees (JORGE R. COQUIA, et al., Conflict of Laws Cases, Materials and Comments, 1995 ed., 290).

Specifically, under Chapter 1, Article 1 of the United Nations Convention Regarding the Status of Stateless Persons (Philippine Treaty Series, Compiled and Annotated by Haydee B. Yorac, vol. III, 363), a stateless person is defined as "a person who is not considered as a national by any State under the operation of its law." However, it has not been shown that the United States of America ever ceased to consider Frivaldo its national at any time before he took his oath of allegiance to the Republic of the Philippines on 30 June 1995.

Finally, I find it in order to also express my view on the concurring opinion of Mr. Justice Reynato S. Puno. I am absolutely happy to join him in his statement that "[t]he sovereignty of our people is the primary postulate of the 1987 Constitution" and that the said Constitution is "more people-oriented,""borne [as it is] out of the 1986 people power EDSA revolution." I would even go further by saying that this Constitution is pro-God (Preamble), pro-people (Article II, Sections 1, 3, 4, 5, 9, 15, 16; Article XI, Section 1, Article XII, Sections 1, 6; Article XIII, Sections 1, 11, 15, 16, 18; Article XVI, Sections 5(2), 6), pro-Filipino (Article XII, Sections 1, 2, 10, 11, 12, 14; Article XIV, Sections 1, 4(2), 13; Article XVI, Section 11), pro-poor (Article II, Sections 9, 10, 18, 21; Article XII, Sections 1, 2(3); Article XIII, Sections 1, 3, 4, 5, 6, 7, 9, 10, 11, 13), pro-life (Article II, Section 12), and pro-family (Article II, Section 12; Article XV).

Nevertheless, I cannot be with him in carrying out the principle of sovereignty beyond what I perceive to be the reasonable constitutional parameters. The doctrine of people's sovereignty is founded on the principles of democracy and republicanism and refers exclusively to the sovereignty of the people of the Philippines. Section 1 of Article II is quite clear on this, thus:

That sovereign power of the Filipino people cannot be fragmentized by looking at it as the supreme authority of the people of any of the political subdivisions to determine their own destiny; neither can we convert and treat every fragment as the whole. In such a case, this Court would provide the formula for the division and destruction of the State and render the Government ineffective and inutile. To illustrate the evil, we may consider the enforcement of laws or the pursuit of a national policy by the executive branch of the government, or the execution of a judgment by the courts. If these are opposed by the overwhelming majority of the people of a certain province, or even a municipality, it would necessarily follow that the law, national policy, or judgment must not be enforced, implemented, or executed in the said province or municipality. More concretely, if, for instance, the vast majority of the people of Batanes rise publicly and take up arms against the Government for the purpose of removing from the allegiance to the said Government or its laws, the territory of the Republic of the Philippines or any part thereof, or any body of land, naval, or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives, then those who did so -- and which are composed of the vast majority of the people of Batanes -- a political subdivision -- cannot be prosecuted for or be held guilty of rebellion in violation of Article 134 of the Revised Penal Code because of the doctrine of peoples' sovereignty. Indeed, the expansion of the doctrine of sovereignty by investing upon the people of a mere political subdivision that which the Constitution places in the entire Filipino people, may be disastrous to the Nation.

So it is in this case if we follow the thesis in the concurring opinion. Thus, simply because Frivaldo had obtained a margin of 20,000 votes over his closest rival, Lee, i.e., a vast majority of the voters of Sorsogon had expressed their sovereign will for the former, then this Court must yield to that will and must, therefore, allow to be set aside, for Frivaldo, not just the laws on qualifications of candidates and elective officials and naturalization and reacquisition of Philippine citizenship, but even the final and binding decisions of this Court affecting him.

This Court must be the first to uphold the Rule of Law. I vote then to DISMISS G.R. No. 120295 and GRANT G.R. No. 123755.

1 Composed of Pres. CoFootnotesmm. Regalado E. Maambong, ponente; Comm. Graduacion A.R. Claravall, concurring, and Comm. Julio F. Desamito, dissenting.

2 In SPC No. 95-317, entitled Juan G. Frivaldo, petitioner, vs. Raul R. Lee, respondent; rollo, pp. 110-129.

3 Signed by Chairman Bernardo P. Pardo, Comms. Regalado E. Maambong, Remedios A. Salazar-Fernando, Manolo B. Gorospe and Teresita Dy-Liaco Flores. Chairman Pardo certified that "Commissioner Julio F. Desamito was on official travel at the time of the deliberation and resolution of this case. However, the Commission has reserved to Comm. Desamito the right to submit a dissenting opinion." Rollo, pp. 159-171.

4 Rollo, pp. 46-49.

5 Rollo, pp. 50-55. The Second Division was composed of Pres. Comm. Remedios A. Salazar-Fernando, ponente; Comm. Teresita Dy-Liaco Flores, concurring, and Comm. Manolo B. Gorospe ("on official business").

6 Frivaldo was naturalized as an American citizen on January 20, 1983. In G.R. No. 87193, Frivaldo vs. Commission on Elections, 174 SCRA 245 (June 23, 1989), the Supreme Court, by reason of such naturalization, declared Frivaldo "not a citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province of Sorsogon." On February 28, 1992, the Regional Trial Court of Manila granted the petition for naturalization of Frivaldo. However, the Supreme Court in G.R. No. 104654, Republic of the Philippines vs. De la Rosa, et al., 232 SCRA 785 (June 6, 1994), overturned this grant, and Frivaldo was "declared not a citizen of the Philippines" and ordered to vacate his office. On the basis of this latter Supreme Court ruling, the Comelec disqualified Frivaldo in SPA No. 95-028.

7 Signed by Chairman Bernardo P. Pardo and the six incumbent commissioners, namely, Regalado E. Maambong, Remedios A. Salazar-Fernando, Manolo B. Gorospe, Graduacion A. Reyes-Claravall, Julio F. Desamito and Teresita Dy-Liaco Flores; rollo, pp. 56-57.

8 Rollo, p. 60.

9 Rollo, pp. 61-67.

10 Rollo, pp. 86-87. The Comelec considered the votes cast for Frivaldo as "stray votes", and thus Lee was held as having garnered the "highest number of votes."

11 Rollo, pp. 88-97. This is the forerunner of the present case.

12 211 SCRA 297 (July 3, 1992) and 176 SCRA 1 (August 1, 1989).

13 Rollo, pp. 110-128.

14 Rollo, pp. 159-170.

15 Rollo, pp. 16-17; petition, pp. 14-15.

16 Rollo, pp. 10-15. This is the same resolution referred to in footnote no. 5.

17 Rollo, pp. 16-17. This is the same resolution referred to in footnote no. 7.

18 Rollo, pp. 18-21. This is signed also by the Chairman and the six other Comelec Commissioners.

19 Republic Act No. 7160.

20 See footnote no. 6, supra.

21 In debunking Frivaldo's claim of citizenship, this Court in G.R. No. 87193, supra, p. 254, observed that "(i)f he (Frivaldo) really wanted to disavow his American citizenship and reacquire Philippine citizenship, petitioner should have done so in accordance with the laws of our country. Under C.A. No. 63 as amended by C.A. No. 473 and P.D. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation."

22 Supra, p. 794.

23 Petition, p. 27; rollo, p. 29.

24 The full text of said memorandum reads as follows:

TO : The Solicitor General

The Undersecretary of Foreign Affairs

The Director-General

National Intelligence Coordinating Agency

The previous administration's practice of granting citizenship by Presidential Decree or any other executive issuance, and the derivative administrative authority thereof, poses a serious and contentious issue of policy which the present government, in the exercise of prudence and sound discretion, should best leave to the judgment of the first Congress under the 1987 Constitution.

In view of the foregoing, you as Chairman and members of the Special Committee on Naturalization, are hereby directed to cease and desist from undertaking any and all proceedings within your functional area of responsibility, as defined in Letter of Instructions No. 270 dated April 11, 1975, as amended, Presidential Decree No. 836 dated December 3, 1975, as amended, and Presidential Decree No. 1379 dated May 17, 1978, relative to the grant of citizenship under the said laws, and any other related laws, orders, issuances and rules and regulations.

(Sgd.) Corazon C. Aquino

Manila, March 27, 1987.

25 Art. 7, Civil Code of the Philippines.

26 Cf. Ty, et al. vs. Trampe, et al., G.R. No. 117577 (December 1, 1995).

27 Petition, p. 28; rollo, p. 30.

28 The aforesaid Manifestation reads as follows:

M A N I F E S T A T I O N

The Solicitor General, as Chairman of the Special Committee on Naturalization, hereby manifests that the following persons have been repatriated by virtue of Presidential Decree No. 725, since June 8, 1995:

1. Juan Gallanosa Frivaldo R-000900

2. Manuel Reyes Sanchez 901

3. Ma. Nelly Dessalla Ty 902

4. Terry Herrera and

Antonio Ching 903

5. Roberto Salas Benedicto 904

6. Winthrop Santos Liwag 905

7. Samuel M. Buyco 906

8. Joselito Holganza Ruiz 907

9. Samuel Villanueva 908

10. Juan Leonardo Collas, Jr. 909

11. Felicilda Otilla Sacnanas-Chua 910

29 The text of P.D. 725 is reproduced below:

PRESIDENTIAL DECREE No. 725

PROVIDING FOR REPATRIATION OF FILIPINO WOMEN WHO HAD LOST THEIR PHILIPPINE CITIZENSHIP BY MARRIAGE TO ALIENS AND OF NATURAL BORN FILIPINOS.

WHEREAS, there are many Filipino women who had lost their Philippine citizenship by marriage to aliens;

WHEREAS, while the new Constitution allows a Filipino woman who marries an alien to retain her Philippine citizenship unless by her act or omission, she is deemed under the law to have renounced her Philippine citizenship, such provision of the new Constitution does not apply to Filipino women who had married aliens before said constitution took effect;

WHEREAS, the existing law (C.A. No. 63, as amended) allows the repatriation of Filipino women who lost their citizenship by reason of their marriage to aliens only after the death of their husbands or the termination of their marital status; and

WHEREAS, there are natural born Filipinos who have lost their Philippine citizenship but now desire to re-acquire Philippine citizenship;

Now, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby decree and order that: (1) Filipino women who lost their Philippine citizenship by marriage to aliens; and (3) natural born Filipinos who have lost their Philippine citizenship may reacquire Philippine citizenship through repatriation by applying with the Special Committee on Naturalization created by Letter of Instructions No. 270, and, if their applications are approved, taking the necessary oath of allegiance to the Republic of the Philippines, after which they shall be deemed to have reacquired Philippine citizenship. The Commission on Immigration and Deportation shall thereupon cancel their certificate of registration.

The aforesaid Special Committee is hereby authorized to promulgate rules and regulations and prescribe the appropriate forms and the required fees for the effective implementation of this Decree.

This Decree shall take effect immediately.

Done in the City of Manila, this 5th day of June, in the year of Our Lord, nineteen hundred and seventy-five.

30 See footnote no. 6, supra.

31 Cf. Labo, Jr. vs. Comelec, 211 SCRA 297 (July 3, 1992).

32 The term of office of all local elective officials elected after the effectivity of this Code shall be three (3) years, starting from noon of June 30, 1992 or such date as may be provided for by law, . . ." Sec. 43, Local Government Code.

33 96 Phil. 447, 453 (1955).

34 The following are excerpts from the transcript of stenographic notes of the oral argument held on March 19, 1996:

35 Section 117, Batas Pambansa Blg. 881, otherwise known as "The Omnibus Election Code of the Philippines", as amended, provides for the various qualifications of voters, one of which is Filipino citizenship.

36 Comment, p. 11; rollo, p. 259.

37 See footnote no. 33.

38 Section 253 reads as follows:

Sec. 253. Petition for quo warranto. -- Any voter contesting the election of any member of the Congress, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election. (Art. XIV, Sec. 60, BP 697; Art. XVIII, Sec. 189, par. 2, 1978 EC).

Any voter contesting the election of any municipal or barangay officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the regional trial court or metropolitan or municipal trial court, respectively, within ten days after the proclamation of the results of the election. (Art. XVIII, Sec. 189, par. 2, 1978 EC).

39 Art. 4, New Civil Code. See also Gallardo vs. Borromeo, 161 SCRA 500 (May 25, 1988), and Nilo vs. Court of Appeals, 128 SCRA 519 (April 2, 1984).

40 Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. I, 1990 ed., p. 23 states:

Exceptions to Rule. -- Statutes can be given retroactive effect in the following cases: (1) when the law itself so expressly provides, (2) in case of remedial statutes, (3) in case of curative statutes, (4) in case of laws interpreting others, and (5) in case of laws creating new rights.

41 Id., p. 25.

42 Agpalo, Statutory Construction, 1990 ed., pp. 270-271.

43 73 Am Jur 2d, Sec. 354, p. 489, cited in Castro vs. Sagales, 94 Phil. 208, 210 (1953).

44 Memorandum, p. 9.

45 73 Am Jur 2d, Sec. 351, p. 488.

46 73 Am Jur 2d, Sec. 354, p. 490; emphasis supplied.

47 Art. 10, Civil Code of the Philippines.

48 Based on the "Corrected Compliance" dated May 16, 1996 filed by the Solicitor General, it appears that, excluding the case of Frivaldo, the longest interval between date of filing of an application for repatriation and its approval was three months and ten days; the swiftest action was a same-day approval.

49 Sec. 40. Disqualifications. -- The following persons are disqualified from running for any elective local position:

xxx xxx xxx

(d) Those with dual citizenship;"

50 p. 11; rollo, p. 259.

51 Resolution, p. 12; rollo, p. 121.

52 Cf. Navarro vs. Commission on Elections, 228 SCRA 596 (December 17, 1993); Arao vs. Commission on Elections, 210 SCRA 290 (June 23, 1992).

53 The dispositive portion of said Resolution reads:

WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is DISQUALIFIED to run for the office of Provincial Governor of Sorsogon on the ground that he is not a citizen of the Philippines. Accordingly respondent's certificate of candidacy is cancelled.

54 Petition, p. 19; rollo, p. 21.

55 Resolution promulgated on December 19, 1995, p. 7; rollo, p. 116.

56 42 SCRA 561, 565 (December 20, 1971), citing Moy Ya Lim Yao vs. Commissioner of Immigration, L-21289, October 4, 1971.

57 Art. IX, Sec. 2.

58 SPC No. 95-317 is entitled "Annulment of Proclamation" and contains the following prayer:

WHEREFORE, it is most respectfully prayed of this Honorable Commission that after due notice and hearing an Oder (sic) /Resolution/Decision be issued as follows:

a) Annulling/setting aside the 30 June 1995 proclamation of respondent as the duly election (sic), Governor of Sorsogon for being contrary to law;

b) Ordering the proclamation of the petitioner as duly elected governor of Sorsogon;

xxx xxx xxx

59 229 SCRA 666, 674 (February 4, 1994).

60 211 SCRA 297, 309 (July 3, 1992).

61 G.R. No. 120265, September 18, 1995.

62 Supra, at p. 312.

63 See footnotes 2 and 3.

64 174 SCRA 245, 254 (June 23, 1959).

65 Salonga and Yap, Public International Law, 1966 ed., p. 239.

66 In Espinosa vs. Aquino, (Electoral Case No. 9, Senate Electoral Tribunal [SET]), the election of the late Senator Benigno S. Aquino, Jr. was upheld, despite his not being of the required age on the day of the election, although he celebrated his thirty-fifth birthday before his proclamation. Much later, in 1990, this Court held in Aznar vs. Comelec (185 SCRA 703, May 25, 1990) that even if Emilio "Lito" Osmeña held an Alien Certificate of Registration as an American citizen, he was still not disqualified from occupying the local elective post of governor, since such certificate did not preclude his being "still a Filipino." The holding in Aquino was subsequently nullified by the adoption of the 1987 Constitution (Art. VI, Sec. 3), which specified that the age qualification must be possessed on the day of the elections, and not on the day of the proclamation of the winners by the board of canvassers. On the other hand, Sec. 40 of Republic Act No. 7160 (Local Government Code of 1991) which took effect on January 1, 1992, provides that those with dual citizenship are disqualified from running for any elective local position, and effectively overturns the ruling in Aznar. But the point is that to the extent possible, and unless there exist provisions to the contrary, the laws have always been interpreted to give fullest effect to the political will.

67 Benito vs. Commission on Elections, 235 SCRA 436, 442 (August 17, 1994).

68 This antagonism was clearly present in the two earlier cases involving Frivaldo. See footnote no. 6.

PUNO, J., concurring:

1 The 1987 Constitution added the word "democratic" in the statement of the principle.

2 Section 24(a) of the Tydings-McDuffie Law which authorized the Filipino people to draft a Constitution in 1934 required that the "constitution formulated and drafted shall be republican in form."

This Court has observed that even before the Tydings-McDuffie Law, the Philippine Bill and the Jones Law have ". . . extended the powers of a republican form of government modeled after that of the United States to the Philippines." Roa v. Collector of Customs, 23 Phil. 315, 340 [1912], Severino v. Gov. General, 16 Phil. 366, 383 [1910], US v. Bull, 15 Phil. 7, 27 [1910].

3 Words and Phrases, Vol. 39 A., p. 68 citing Cherokee Nation v. Southern Kan. R. Co., 33 F. 900, 906.

4 Dean of the UP College of Law; later President of U.P., and Delegate to the 1971 Constitutional Convention.

5 Since, Philippine Political Law, Principles and Concepts, 1954, ed., p. 22.

6 Barker, Principles of Social and Political Theory, p. 59 (1952 ed.).

7 118 US 356.

8 Cruz, Philippine Political Law, p. 49, [1991 ed.].

9 Sinco, op. cit., pp. 23-24.

10 3 AM JUR 2d 889-890; 63 AM JUR 2d 653; 67 CSJ 926.

11 Moya v. del Fierro, 69 Phil. 199.

EN BANC

G.R. No. 104654 June 6, 1994

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HON. ROSALIO G. DE LA ROSA, PRESIDING JUDGE OF THE REGIONAL TRIAL COURT, BRANCH 28, MANILA and JUAN G. FRIVALDO, respondents.

RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.

RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.

Yolando F. Lim counsel for private respondent.

In Frivaldo v. Commission on Elections, 174 SCRA 245 (1989), this Court declared private respondent, Juan G. Frivaldo, an alien and therefore disqualified from serving as Governor of the Province of Sorsogon.

Once more, the citizenship of private respondent is put in issue in
these petitions docketed as G.R. No.104654 and G.R. No. 105715 and G.R. No. 105735. The petitions were consolidated since they principally involve the same issues and parties.

I

G.R. No. 104654

This is a petition for certiorari under Rule 45 of the Revised Rules of Court in relation to R.A. No. 5440 and Section 25 of the Interim Rules, filed by the Republic of the Philippines: (1) to annul the Decision dated February 27, 1992 of the Regional Trial Court, Branch 28, Manila, in SP Proc. No. 91-58645, which re-admitted private respondent as a Filipino citizen under the Revised Naturalization Law (C.A. No. 63 as amended by C.A. No. 473); and (2) to nullify the oath of allegiance taken by private respondent on February 27, 1992.

On September 20, 1991, petitioner filed a petition for naturalization captioned: "In the Matter of Petition of Juan G. Frivaldo to be Re-admitted as a Citizen of the Philippines under Commonwealth Act No. 63" (Rollo, pp. 17-23).

In an Order dated October 7, 1991 respondent Judge set the petition for hearing on March 16, 1992, and directed the publication of the said order and petition in the Official Gazette and a newspaper of general circulation, for three consecutive weeks, the last publication of which should be at least six months before the said date of hearing. The order further required the posting of a copy thereof and the petition in a conspicuous place in the Office of the Clerk of Court of the Regional Trial Court, Manila (Rollo, pp. 24-26).

On January 14, 1992, private respondent filed a "Motion to Set Hearing Ahead of Schedule," where he manifested his intention to run for public office in the May 1992 elections. He alleged that the deadline for filing the certificate of candidacy was March 15, one day before the scheduled hearing. He asked that the hearing set on March 16 be cancelled and be moved to January 24 (Rollo, pp. 27-28).

The motion was granted in an Order dated January 24, 1992, wherein the hearing of the petition was moved to February 21, 1992. The said order was not published nor a copy thereof posted.

On February 21, the hearing proceeded with private respondent as the sole witness. He submitted the following documentary evidence: (1) Affidavit of Publication of the Order dated October 7, 1991 issued by the publisher of The Philippine Star (Exh. "A"); (2) Certificate of Publication of the order issued
by the National Printing Office (Exh. "B"); (3) Notice of Hearing of Petition (Exh. "B-1"); (4) Photocopy of a Citation issued by the National Press Club with private respondent’s picture (Exhs. "C" and "C-2"); (5) Certificate of Appreciation issued by the Rotary Club of Davao (Exh. "D"); (6) Photocopy
of a Plaque of Appreciation issued by the Republican College, Quezon City (Exh. "E"); (7) Photocopy of a Plaque of Appreciation issued by the Davao-Bicol Association (Exh. "F"); (8) Certification issued by the Records Management and Archives Office that the record of birth of private respondent was not on file (Exh. "G"); and (8) Certificate of Naturalization issued by the United States District Court (Exh. "H").

Six days later, on February 27, respondent Judge rendered the assailed Decision, disposing as follows:

On the same day, private respondent was allowed to take his oath of allegiance before respondent Judge (Rollo, p. 34).

On March 16, a "Motion for Leave of Court to Intervene and to Admit Motion for Reconsideration" was filed by Quiterio H. Hermo. He alleged that the proceedings were tainted with jurisdictional defects, and prayed for a new trial to conform with the requirements of the Naturalization Law.

After receiving a copy of the Decision on March 18, 1992, the Solicitor General interposed a timely appeal directly with the Supreme Court.

G.R. No. 105715

This is a petition for certiorari, mandamus with injunction under Rule 65 of the Revised Rules of Court in relation to Section 5(2) of Article VIII of the Constitution with prayer for temporary restraining order filed by Raul R. Lee against the Commission on Elections (COMELEC) and private respondent, to annul the en banc Resolution of the COMELEC, which dismissed his petition docketed as SPC Case No. 92-273. The said petition sought to annul the proclamation of private respondent as Governor-elect of the Province of Sorsogon.

Petitioner was the official candidate of the Laban ng Demokratikong Pilipino (LDP) for the position of governor of the Province of Sorsogon in the May 1992 elections. Private respondent was the official candidate of the Lakas-National Union of Christian Democrats (Lakas-NUCD) for the same position.

Private respondent was proclaimed winner on May 22, 1992.

On June 1, petitioner filed a petition with the COMELEC to annul the proclamation of private respondent as Governor-elect of the Province of Sorsogon on the grounds: (1) that the proceedings and composition of the Provincial Board of Canvassers were not in accordance with law; (2) that private respondent is an alien, whose grant of Philippine citizenship is being questioned by the State in G.R. No. 104654; and (3) that private respondent is not a duly registered voter. Petitioner further prayed that the votes case in favor of private respondent be considered as stray votes, and that he, on the basis of the remaining valid votes cast, be proclaimed winner.

On June 10, the COMELEC issued the questioned en banc resolution which dismissed the petition for having been filed out of time, citing Section 19 of R.A. No. 7166. Said section provides that the period to appeal a ruling of the board of canvassers on questions affecting its composition or proceedings was three days.

In this petition, petitioner argues that the COMELEC acted with grave abuse of discretion when it ignored the fundamental issue of private respondent’s disqualification in the guise of technicality.

Petitioner claims that the inclusion of private respondent’s name in the list of registered voters in Sta. Magdalena, Sorsogon was invalid because at the time he registered as a voter in 1987, he was as American citizen.

Petitioner further claims that the grant of Filipino citizenship to private respondent is not yet conclusive because the case is still on appeal before us.

Petitioner prays for: (1) the annulment of private respondent’s proclamation as Governor of the Province of Sorsogon; (2) the deletion of private respondent’s name from the list of candidates for the position of governor; (3) the proclamation of the governor-elect based on the remaining votes, after the exclusion of the votes for private respondent; (4) the issuance of a temporary restraining order to enjoin private respondent from taking his oath and assuming office; and (5) the issuance of a writ of mandamus to compel the COMELEC to resolve the pending disqualification case docketed as SPA Case No. 92-016, against private respondent.

G.R. No. 105735

This is a petition for mandamus under Rule 65 of the Revised Rules of Court in relation to Section 5(2) of Article VIII of the Constitution, with prayer for temporary restraining order. The parties herein are identical with the parties in G.R. No. 105715.

In substance, petitioner prays for the COMELEC’s immediate resolution of SPA Case No. 92-016, which is a petition for the cancellation of private respondent’s certificate of candidacy filed on March 23, 1992 by Quiterio H. Hermo, the intervenor in G.R. No. 104654 (Rollo, p. 18).

The petition for cancellation alleged: (1) that private respondent is an American citizen, and therefore ineligible to run as candidate for the position of governor of the Province of Sorsogon; (2) that the trial court’s decision
re-admitting private respondent as a Filipino citizen was fraught with legal infirmities rendering it null and void; (3) that assuming the decision to be valid, private respondent’s oath of allegiance, which was taken on the same day the questioned decision was promulgated, violated Republic Act No. 530, which provides for a two-year waiting period before the oath of allegiance can be taken by the applicant; and (4) that the hearing of the petition on February 27, 1992, was held less than four months from the date of the last publication of the order and petition. The petition prayed for the cancellation of private respondent’s certificate of candidacy and the deletion of his name from the list of registered voters in Sta. Magdalena, Sorsogon.

In his answer to the petition for cancellation, private respondent denied the allegations therein and averred: (1) that Quiterio H. Hermo, not being a candidate for the same office for which private respondent was aspiring, had no standing to file the petition; (2) that the decision re-admitting him to Philippine citizenship was presumed to be valid; and (3) that no case had been filed to exclude his name as a registered voter.

Raul R. Lee intervened in the petition for cancellation of private respondent’s certificate of candidacy (Rollo, p. 37.).

On May 13, 1992, said intervenor urged the COMELEC to decide the petition for cancellation, citing Section 78 of the Omnibus Election Code, which provides that all petitions on matters involving the cancellation of a certificate of candidacy must be decided "not later than fifteen days before election," and the case of Alonto v. Commission on Election, 22 SCRA 878 (1968), which ruled that all pre-proclamation controversies should be summarily decided (Rollo,
p. 50).

The COMELEC concedes that private respondent has not yet reacquired his Filipino citizenship because the decision granting him the same is not yet final and executory (Rollo, p. 63). However, it submits that the issue of disqualification of a candidate is not among the grounds allowed in a
pre-proclamation controversy, like SPC Case No. 92-273. Moreover, the said petition was filed out of time.

The COMELEC contends that the preparation for the elections occupied much of its time, thus its failure to immediately resolve SPA Case No. 92-016. It argues that under Section 5 of Rule 25 of the COMELEC Rules of Procedure, it is excused from deciding a disqualification case within the period provided by law for reasons beyond its control. It also assumed that the same action was subsequently abandoned by petitioner when he filed before it a petition for quo warranto docketed as EPC No. 92-35. The quo warranto proceedings sought private respondent’s disqualification because of his American citizenship.

II

G.R. No. 104654

We shall first resolve the issue concerning private respondent’s citizenship.

In his comment to the State’s appeal of the decision granting him Philippine citizenship in G.R. No. 104654, private respondent alleges that the precarious political atmosphere in the country during Martial Law compelled him to seek political asylum in the United States, and eventually to renounce his Philippine citizenship.

He claims that his petition for naturalization was his only available remedy for his reacquisition of Philippine citizenship. He tried to reacquire his Philippine citizenship through repatriation and direct act of Congress. However, he was later informed that repatriation proceedings were limited to army deserters or Filipino women who had lost their citizenship by reason of their marriage to foreigners (Rollo, pp. 49-50). His request to Congress for sponsorship of a bill allowing him to reacquire his Philippine citizenship failed to materialize, notwithstanding the endorsement of several members of the House of Representatives in his favor (Rollo, p. 51). He attributed this to the maneuvers of his political rivals.

He also claims that the re-scheduling of the hearing of the petition to an earlier date, without publication, was made without objection from the Office of the Solicitor General. He makes mention that on the date of the hearing, the court was jam-packed.

It is private respondent’s posture that there was substantial compliance with the law and that the public was well-informed of his petition for naturalization due to the publicity given by the media.

Anent the issue of the mandatory two-year waiting period prior to the taking of the oath of allegiance, private respondent theorizes that the rationale of the law imposing the waiting period is to grant the public an opportunity to investigate the background of the applicant and to oppose the grant of Philippine citizenship if there is basis to do so. In his case, private respondent alleges that such requirement may be dispensed with, claiming that his life, both private and public, was well-known. Private respondent cites his achievement as a freedom fighter and a former Governor of the Province of Sorsogon for six terms.

The appeal of the Solicitor General in behalf of the Republic of the Philippines is meritorious. The naturalization proceedings in SP Proc. No. 91-58645 was full of procedural flaws, rendering the decision an anomaly.

Private respondent, having opted to reacquire Philippine citizenship thru naturalization under the Revised Naturalization Law, is duty bound to follow the procedure prescribed by the said law. It is not for an applicant to decide for himself and to select the requirements which he believes, even sincerely, are applicable to his case and discard those which be believes are inconvenient or merely of nuisance value. The law does not distinguish between an applicant who was formerly a Filipino citizen and one who was never such a citizen. It does not provide a special procedure for the reacquisition of Philippine citizenship by former Filipino citizens akin to the repatriation of a woman who had lost her Philippine citizenship by reason of her marriage to an alien.

The trial court never acquired jurisdiction to hear the petition for naturalization of private respondent. The proceedings conducted, the decision rendered and the oath of allegiance taken therein, are null and void for failure to comply with the publication and posting requirements under the Revised Naturalization Law.

Under Section 9 of the said law, both the petition for naturalization and the order setting it for hearing must be published once a week for three consecutive weeks in the Official Gazette and a newspaper of general circulation respondent cites his achievements as a freedom fighter and a former Governor of the Province of Sorsogon for six terms.

The appeal of the Solicitor General in behalf of the Republic of
the Philippines is meritorious. The naturalization proceedings in SP Proc.
No. 91-58645 was full of procedural flaws, rendering the decision an anomaly.

Private respondent, having opted to reacquire Philippine citizenship thru naturalization under the Revised Naturalization Law, is duty bound to follow the procedure prescribed by the said law. It is not for an applicant to decide for himself and to select the requirements which he believes, even sincerely, are applicable to his case and discard those which he believes are inconvenient or merely of nuisance value. The law does not distinguish between an applicant who was formerly a Filipino citizen and one who was never such a citizen. It does not provide a special procedure for the reacquisition of Philippine citizenship by former Filipino citizens akin to the repatriation of a woman who had lost her Philippine citizenship by reason of her marriage to an alien.

The trial court never acquired jurisdiction to hear the petition for naturalization of private respondent. The proceedings conducted, the decision rendered and the oath of allegiance taken therein, are null and void for failure to comply with the publication and posting requirements under the Revised Naturalization Law.

Under Section 9 of the said law, both the petition for naturalization and the order setting it for hearing must be published once a week for three consecutive weeks in the Official Gazette and a newspaper of general circulation. Compliance therewith is jurisdictional (Po Yi Bo v. Republic, 205 SCRA 400 [1992]). Moreover, the publication and posting of the petition and the order must be in its full test for the court to acquire jurisdiction (Sy v. Republic, 55 SCRA 724 [1974]).

The petition for naturalization lacks several allegations required by Sections 2 and 6 of the Revised Naturalization Law, particularly: (1) that the petitioner is of good moral character; (2) that he resided continuously in the Philippines for at least ten years; (3) that he is able to speak and write English and any one of the principal dialects; (4) that he will reside continuously in the Philippines from the date of the filing of the petition until his admission to Philippine citizenship; and (5) that he has filed a declaration of intention or if he is excused from said filing, the justification therefor.

The absence of such allegations is fatal to the petition (Po Yi Bi v. Republic, 205 SCRA 400 [1992]).

Likewise, the petition is not supported by the affidavit of at least two credible persons who vouched for the good moral character of private respondent as required by Section 7 of the Revised Naturalization Law. Private respondent also failed to attach a copy of his certificate of arrival to the petition as required by Section 7 of the said law.

The proceedings of the trial court was marred by the following irregularities: (1) the hearing of the petition was set ahead of the scheduled date of hearing, without a publication of the order advancing the date of hearing, and the petition itself; (2) the petition was heard within six months from the last publication of the petition; (3) petitioner was allowed to take his oath of allegiance before the finality of the judgment; and (4) petitioner took his oath of allegiance without observing the two-year waiting period.

A decision in a petition for naturalization becomes final only after 30 days from its promulgation and, insofar as the Solicitor General is concerned, that period is counted from the date of his receipt of the copy of the decision (Republic v. Court of First Instance of Albay, 60 SCRA 195 [1974]).

Section 1 of R.A. No. 530 provides that no decision granting citizenship in naturalization proceedings shall be executory until after two years from its promulgation in order to be able to observe if: (1) the applicant has left the country; (2) the applicant has dedicated himself continuously to a lawful calling or profession; (3) the applicant has not been convicted of any offense or violation of government promulgated rules; and (4) the applicant has committed any act prejudicial to the interest of the country or contrary to government announced policies.

Even discounting the provisions of R.A. No. 530, the courts cannot implement any decision granting the petition for naturalization before its finality.

G.R. No. 105715

In view of the finding in G.R. No. 104654 that private respondent is not yet a Filipino citizen, we have to grant the petition in G.R. No. 105715 after treating it as a petition for certiorari instead of a petition for mandamus. Said petition assails the en banc resolution of the COMELEC, dismissing SPC Case No. 92-273, which in turn is a petition to annul private respondent’s proclamation on three grounds: 1) that the proceedings and composition of the Provincial Board of Canvassers were not in accordance with law; 2) that private respondent is an alien, whose grant of Filipino citizenship is being questioned by the State in G.R. No. 104654; and 3) that private respondent is not a duly registered voter. The COMELEC dismissed the petition on the grounds that it was filed outside the three-day period for questioning the proceedings
and composition of the Provincial Board of Canvassers under Section 19 of R.A. No. 7166.

The COMELEC failed to resolve the more serious issue — the disqualification of private respondent to be proclaimed Governor on grounds of lack of Filipino citizenship. In this aspect, the petition is one for quo warranto. In Frivaldo v. Commission on Elections, 174 SCRA 245 (1989), we held that a petition for quo warranto, questioning the respondent’s title and seeking to prevent him from holding office as Governor for alienage, is not covered by the ten-day period for appeal prescribed in Section 253 of the Omnibus Election Code. Furthermore, we explained that "qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer’s entire tenure; once any of the required qualification is lost, his title may be seasonably challenged."

Petitioner’s argument, that to unseat him will frustrate the will of the electorate, is untenable. Both the Local Government Code and the Constitution require that only Filipino citizens can run and be elected to public office. We can only surmise that the electorate, at the time they voted for private respondent, was of the mistaken belief that he had legally reacquired Filipino citizenship.

Petitioner in G.R. No. 105715, prays that the votes cast in favor of private respondent be considered stray and that he, being the candidate obtaining the second highest number of votes, be declared winner. In Labo, Jr. v. COMELEC, 176 SCRA 1 (1989), we ruled that where the candidate who obtained the highest number of votes is later declared to be disqualified to hold the office to which he was elected, the candidate who garnered the second highest number of votes is not entitled to be declared winner (See also Geronimo v. Ramos, 136 SCRA 435 [1985]; Topacio v. Paredes, 23 Phil. 238 [1912]).

G.R. No. 105735

In view of the discussions of G.R. No. 104654 and G.R. No. 105715, we find the petition in G.R. No. 105735 moot and academic.

WHEREFORE, the petitions in G.R. No. 104654 and G.R. No. 105715 are both GRANTED while the petition in G.R. No. 105735 is DISMISSED. Private respondent is declared NOT a citizen of the Philippines and therefore DISQUALIFIED from continuing to serve as GOVERNOR of the Province of Sorsogon. He is ordered to VACATE his office and to SURRENDER the same to the Vice-Governor of the Province of Sorsogon once this decision becomes final and executory. No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J. and Cruz, J., took no part.

EN BANC

G.R. No. 105111 July 3, 1992

RAMON L. LABO, Jr., petitioner,
vs.
COMMISSION ON ELECTIONS, and ROBERTO ORTEGA, respondents.

ROBERTO C. ORTEGA, petitioner,
vs.
COMMISSION ON ELECTIONS, and RAMON L. LABO, Jr., respondents.

This is the second time1 that this Court is called upon to rule on the citizenship of Ramon Labo, Jr., who, believing that he is a Filipino citizen launched his candidacy for mayor of Baguio City in the last May 11, 1992 elections by filing his certificate of candidacy on March 23, 1992.

Petitioner Roberto Ortega (GR No. 105384), on other hand, also filed his certificate of candidacy for the same office on March 25, 1992.

Shortly after petitioner Labo filed his certificate of candidacy, petitioner Ortega filed on March 26, 1992, a disqualification proceeding against Labo before the Commission on Elections (Comelec), docketed as SPA No. 92-029, seeking to cancel Labo's certificate of candidacy on the ground that Labo made a false representation when he stated therein that he (Labo) is a "natural-born" citizen of the Philippines.

Summons in the disqualification case was issued by the Comelec on March 27, 1992 to petitioner Labo followed by a telegram dated April 1, 1992, requiring him to file his Answer within three (3) non-extendible days but the latter failed to respond.

On April 15, 1992, Ortega filed a motion to declare Labo in default for failure to file his Answer.

On April 24, 1992, the Comelec issued another order directing the Election Registrar of Baguio City to personally deliver the summons. On May 4, 1992, the disqualification case was set for reception of evidence. At the said hearing, Ortega presented the decision of this Court in Labo v. Commission on Elections (176 SCRA 1 [1989]) declaring Labo not a citizen of the Philippines. Labo, on the other hand, though represented by counsel, did not present any evidence. It was only on May 5, 1992 that petitioner submitted his Answer claiming Filipino citizenship.

On May 9, 1992, respondent Comelec issued the assailed resolution, the dispositive portion of which reads:

On the same date, Labo filed a motion to stay implementation of said resolution until after he shall have raised the matter before this Court.

On May 10, 1992, respondent Comelec issued an Order which reads:

On May 13, 1992, respondent Comelec resolved, motu proprio to suspend the proclamation of Labo in the event he wins in the elections for the City Mayor of Baguio. (Rollo, pp. 64-65; GR No. 105111)

On May 15, 1992, petitioner Labo filed the instant petition for review docketed as G.R. No. 105111 with prayer, among others, for the issuance of a temporary restraining order to set aside the May 9, 1992 resolution of respondent Comelec; to render judgment declaring him as a Filipino citizen; and to direct respondent Comelec to proceed with his proclamation in the event he wins in the contested elections.

On the same date, or on May 15, 1992 petitioner Ortega filed before the Comelec an urgent motion for the implementation of its May 9, 1992 resolution cancelling Labo's certificate of candidacy.

After an exchange of pleadings, respondent Comelec, in its resolution dated May 26, 1992, denied Ortega's motion in view of the pending case (G.R. No. 105111) earlier filed by Labo of the same nature before this Court.

On June 1, 1992, Ortega filed a petition for mandamus docketed as G.R. No. 105384 praying for the implementation of the Comelec's May 9, 1992 resolution.

Petitioner Ortega argues that respondent Comelec committed grave abuse of discretion when it refused to implement its May 9, 1992 resolution notwithstanding the fact that said resolution disqualifying Ramon Labo has already become final and executory.

After the parties have submitted their respective pleadings, the Court, on June 16, 1992, Resolved to consider the case submitted for decision.

I. GR No. 105111

In essence, it is the contention of petitioner Labo that he is a Filipino citizen. Alleging lack of trial on the merits as well as the lack of opportunity to be heard in Labo v. Commission on Elections (supra), it is the submission of petitioner that he can prove his Filipino citizenship.

Petitioner cites the 1980 US case of Vance v. Terrazas (444 US 252), wherein it was held that in proving expatriation, an expatriating act an intent to relinquish citizenship must be proved by a preponderance of evidence.

Petitioner contends that no finding was made either by the Commission on Immigration or the Comelec as regards his specific intent to renounce his Philippine citizenship.

Petitioner also faults the Comelec for the supposed abbreviated proceedings in SPA No. 92-029 which denied him adequate opportunity to present a full-dress presentation of his case. Thus: a) only one (1) day was set for hearing of the case, i.e., May 4, 1992; b) two days later, May 6, 1992 the hearing was set; c) instead of holding a hearing, the Comelec issued the questioned resolution on May 9, 1992.

If only to refresh the mind of petitioner Labo, as well as that of his counsel, records disclose that summons were issued by respondent Comelec as early as March 27, 1992 followed by a telegram on April 1, 1992. But petitioner chose to ignore the same. Came April 15, 1992, petitioner Ortega filed a motion to declare petitioner Labo in default. Over-extending him (Labo) the benefit of due process, respondent Comelec issued another order dated April 24, 1992, this time directing the Acting City Election Registrar of Baguio to personally serve the summons. The alleged delay in the resolution of SPA No. 92-029 can only be attributed to petitioner Labo and no one else. Thus, the respondent Comelec in its resolution dated May 9, 1992 stated:

Up to this moment, petitioner Labo still failed to submit a scintilla of proof to shore his claim before this Court that he has indeed reacquired his Philippine citizenship.

Instead, petitioner relies in the US case of Vance v. Terrazas (supra). Suffice it to state that petitioner has already pleaded Vance in his motion for reconsideration in Labo v. Comelec (supra; Rollo, p. 375). Having been previously passed upon, the Court sees no pressing need to re-examine the same and make a lengthy dissertation thereon.

At any rate, the fact remains that he has not submitted in the instant case any evidence, if there be any, to prove his reacquisition of Philippine citizenship either before this Court or the Comelec. On this score alone, We find no grave abuse of discretion committed by respondent Comelec in cancelling his (Labo's) certificate of candidacy and declaring that he is NOT a Filipino citizen pursuant to our ruling in the 1989 case of Labo v. Comelec (supra).

Petitioner Labo claims, however, that Sec. 722 of the Omnibus Election Code "operates as a legislatively mandated special repatriation proceeding" and that it allows his proclamation as the winning candidate since the resolution disqualifying him was not yet final at the time the election was held.

The Court finds petitioner Labo's strained argument quixotic and untenable. In the first place, Sec. 72 of the Omnibus Election Code has already been repealed by Sec. 6 of RA No. 6646, to wit:

A perusal of the above provision would readily disclose that the Comelec can legally suspend the proclamation of petitioner Labo, his reception of the winning number of votes notwithstanding, especially so where, as in this case. Labo failed to present any evidence before the Comelec to support his claim of reacquisition of Philippine citizenship.

Furthermore, we need only to reiterate what we have stated in Labo v. Comelec (supra), viz.,: