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LEGAL ETHICS DIGEST (For Discussion and Review) Prepared by: Michael Joseph Nogoy, JD 1 CASE No.

151 NCJC - Canon 3: IMPARTIALITY Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made. Section 2 Enhances Confidence of the Public Judges shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary.. [A.M. No. RTJ-96-1363. October 12, 1998] TOMAS CABULISAN, complainant, vs. JUDGE ADRIAN N. PAGALILAUAN, respondent. PONENTE: BELLOSILLO, J.: NATURE: Administrative complaint for grave misconduct against Judge Adrian N. Pagalilauan filed by Tomas Cabulisan FACTS: Cabulisan alleged that the following were committed by Judge Pagaliluan: o Peeping into the bathroom where Marilyn C. Dumayas, a public health nurse of the Sanchez Mira School of Arts and Trade, and daughter of the owner of the house where he was boarding, was then taking a bath; o Having a mistress; and o Allowing local practitioners to write decisions for him Complaint was referred to NBI which procured statements from Dumayas, alleged victim of the peeping incident, and Gemma C. Cabading, Court Interpreter, RTC-Br. 12, Sanchez Mira, Cagayan. SWORN STATEMENT BEFORE THE NBI OF DUMAYAS: o Morning of February 1995 (specific day was not mentioned) while she was taking a bath in the bathroom she noticed someone enter the adjacent comfort room. After she finished and was about to take her towel, she saw the face of Judge Pagalilauan over the concrete dividing wall with his eyes looking at her naked body so she hurriedly wrapped herself with her towel and went out of the bathroom immediately. o A week after, a similar incident happened again. GEMMA C. CABADINGS SWORN STATEMENT:

She had no knowledge that Judge Pagalilauan was maintaining aquerida. But she recalled that a certain Divina Calaycay frequented the sala of the Judge but explained that Divina was the widow of Judge Infante S. Calaycay, a friend of the judge and his predecessor in office. o Cabading denied having any knowledge of practicing lawyers preparing decisions for Pagalilauan. JUDGE PAGALILAUANS COMMENT: o With the peeping incident: Denied the charges But admitted that while presiding judge of the RTC of Sanchez Mira, Cagayan, he boarded in the house of Isabelo P. Castillo, father of Marilyn C. Dumayas and his former sheriff. He explained that he was not accustomed to sitting on the toilet bowl in the comfort room, he would squat on the bowl with his feet and not his buttocks resting on it. He claimed that under that circumstance, he had to balance himself by placing one hand on the divider while mounting the bowl and dismounting from it. On the said incident, while using the toilet bowl, he had to hold the top of the divider with his left hand to balance himself. His left hand almost dislodged the clothes of Marilyn which were draped on the divider. He held on to them to prevent them from falling on the floor. o With the mistress issue: He insisted that he and Calaycay were merely friends, as he and her late husband were former classmates. There were even instances after the death of Judge Calaycay when she would visit him to ask help in connection with her husbands death benefits from the Employees Compensation Commission considering that he was formerly Executive Labor Arbiter of the NLRC before becoming a judge. o With the accusation of allowing local practitioners to write decisions for him: Baseless and merely fabricated. CA Findings and Recommendation: o Justice Alio-Hormachuelos recommended the dismissal of the complaint on the ground that the identity of the complainant could not be verified.

SC referred back the case to Justice Alio-Hormachuelos for a more thorough investigation on the ground that the alleged non-existence of the complainant was insufficient basis for dismissal. Dumayas appeared in a formal investigation stating that: o Judge Pagalilauan was a boarder in her familys house where she was also staying in 1995. o Their house had only one bathroom which adjoined the comfort room. o The two rooms were separated by a concrete divider about 2-1/2 meters in height which did not go all the way to the ceiling. o This time however she claimed that she did not exactly see the Judge looking at her; that she only saw his forehead and that she simply suspected that he peeped at her. o She also declared that she did not remember if the peeping incident really happened twice.

ISSUE: Whether or not Judge Pagalilauan should be disciplined because of grave misconduct. HELD: YES. RATIO DECIDENDI: On the matter where the affidavit of Dumayas was given more credit As a rule, affidavits are generally considered to be inferior to the testimony given in open court. However, in the instant administrative case, the sworn statement of Dumayas contains a detailed account of the two peeping incidents which is so persuasive as to convince us that it was what actually transpired, and not the version of respondent which is practically a mere denial. Marilyn apparently has forgotten what she had once narrated specially in this case where the testimony before the investigating justice was given more than 2 years after the incident. The fact that she has recounted the facts differently now may show a failure of memory, or could it be that she was swayed by the fact that her husband was a process server of respondents while her father was respondents former sheriff? Her sworn statement was replete with details which makes it more convincing and should be given more weight than her testimony simply denying that she saw respondent staring at her. Merely because she testified that what she had declared was false and that what she

now says is true is not sufficient ground for concluding that her previous statements were false. On the matter of the grave misconduct The judge clearly admits his presence in the adjoining toilet; his defense which consists mainly of the denial that he stared at Marilyn cannot prevail over the latter's positive assertion that she saw him looking at her naked body, specially in this case where she identified respondent in two separate peeping incidents as the culprit. We cannot accept his explanation that he had to hold the top of the divider with his hand to balance himself because he was not accustomed to sitting on the toilet bowl. It is a feeble excuse considering his stature and educational background. In this administrative case, we are principally concerned with the moral fiber of respondent. We have repeatedly held that while every office in the government service is a public trust, no position exacts a greater demand on moral righteousness and uprightness of an individual than a seat in the judiciary. On the issue of having a mistress and the allegation of allowing practicing lawyers to write decisions for him The judge is absolved. No evidence for the mistress issue. The writing of decision issue was denied by the Court interpreter. RULING: Judge Adrian N. Pagalilauan, RTC-Br. 12, Sanchez Mira, Cagayan, is fined P10,000.00 VITUG, J. dissenting: The affidavit, in my view, should not be given greater weight than that of her formal testimony. In the first place, the affidavit was not made part of the testimony either by reiteration or incorporation; neither had she been crossexamined thereon. The basic philosophy behind the requirement of due process, I submit, should not be held irrelevant to an administrative proceeding of this kind where at stake is ones moral integrity. Marilyns statement was, of course, a far cry from the affidavit she had previously executed where she there claimed to have seen respondent staring at her naked body. It would seem improbable for Dumayas to have merely forgotten what she once narrated, the matter was not a minor detail but, in fact, the very focus of her case against respondent.

LEGAL ETHICS DIGEST (For Discussion and Review) Prepared by: Michael Joseph Nogoy, JD 1 CASE No. 162 NCJC - Canon 4: PROPRIETY Propriety and the appearance of propriety are essential to the performance of all the activities of a judge. Section 8 Advancing Private Interests Judges shall not use or lend the prestige of the judicial office to advance their private interests, or those of a member of their family or of anyone else, nor shall they convey or permit others to convey the impression that anyone is in a special position improperly to influence them in the performance of judicial duties. [G.R. No. 84324 April 5, 1990] SANTIAGO AQUINO, TERENCIO YUMANG, JR. and FULGENCIO ICARO, petitioners, vs. HON. GUILLERMO R. LUNTOK, Presiding Judge, Regional Trial Court, Branch XXIX, Libmanan, Camarines Sur and LUDOVICO B. PERALTA, respondents. PONENTE: REGALADO, J.: NATURE: Certiorari with an application for preliminary injunction and/or RO FACTS: Aquino, et.al. are the Provincial Auditor of Camarines Sur, State Auditor I of the Provincial Auditor's Office and State Examiner of the Provincial Auditor's Office, respectively, who conducted an audit of Ludovico Peralta's accounts as Municipal Treasurer of Libmanan, Camarines Sur and found a cash shortage of P274,011.17 under his accountability. Thus, pursuant to Section 157, Batas Pambansa Blg. 337, Aquino, et.al. seized Peralta's cash, books, papers and accounts and the latter was suspended from office. Peralta requested reinvestigation by the Commission on Audit. Pending reinvestigation, Peralta filed a petition dated August 26, 1987 with the trial court, presided over by Judge Luntok, for prohibition with injunction and with a prayer for a restraining order and damages. Judge Luntok issued 3 TROs (August 27, 1987, September 16, 1987, October 6, 1987) and a Writ of Preliminary Injunction (November 4, 1987).

Aquino, et.al. filed a petition for certiorari in the Court of Appeals seeking to nullify the 3 TROs. CA dismissed the petition on the ground of its mootness (Preliminary Injunction was already issued) Hence, this petition of Aquino, et al. at SC seeking the annulment of the following orders of Judge Luntok in the case "Ludovico B. Peralta vs. Henry B. Raola et al.," to wit: (1) Temporary restraining order (TRO, for brevity), dated August 27, 1987, enjoining petitioners herein for a period of twenty (20) days from proceeding or taking action against herein private respondent; (2) Order, dated September 16, 1987, extending the efficacy of said TRO for another period of twenty (20) days; (3) Order, dated October 6, 1987, indirectly extending the efficacy of the TRO for an uncertain period; (4) Order, dated November 4, 1987, granting the application for a writ of preliminary injunction; and (5) Order, dated November 5, 1987, approving the bond filed by private respondent which led to the eventual issuance of the writ of November 11, 1987.

ISSUE: Whether or not Judge Luntok erred in the issuance of the TROs and Writ of Preliminary Injuction. Whether or not the Writ of Preliminary Injunction is null and void. Whether or not Judge Luntok committed any violation in this case. HELD: NO. In fact, the SC upheld the respective orders of the respondent judge. NO. YES. He failed to observe Rule 3.01 of Canon 3 of the CJC and Rule 3.05 . RATIO DECIDENDI: On Issue No. 1 The Section 5, Rule 58 of the Rules of Court, as amended by Batas Pambansa Blg. 224 effective April 16, 1982, sets a specific period for the juridical life span of a TRO. The 20-day period of effectivity of a TRO is non-extendible; the restraining order automatically terminates at the end of such period without the need of 22 any judicial declaration to that effect. Any extension would, therefore, ordinarily, be disallowed. But, when injunction is subsequently granted, as in the case at bar, any defect in the order brought about by the extension of its enforceability is deemed cured.

On Issue No. 2 From a reading of the above-cited provision, it may appear that the order granting the injunction must issue within the same 20-day period. Be that as it may, we are constrained to enunciate, since the contrary is not expressed or otherwise indicated therein, that the mandatory tenor of the aforecited provision should not be taken to mean that a writ issued beyond the time frame is an absolute nullity, provided that, aside from the existence of any of the grounds for its issuance the determination of which is largely addressed to the trial court, the other requirements prescribed by the rules are present, namely, healing and posting of a bond. Instead, the obligatory import of the rule should be considered as a directive for the judge to act with corresponding dispatch on the application for preliminary injunction within the 20-day period if a TRO has been issued, with a proscription against an ex parte proceeding on such application since it would deprive the affected parties of the opportunity to be heard. On Issue No. 3 The circumstances under which the writ was granted after a protracted delay, punctuated by dubious orders issued in the interim, certainly cannot be countenanced lest such conduct be replicated in circumvention of the rules. Specifically, respondent judge failed to observe Rule 3.01 of Canon 3 of the Code of Judicial Conduct, which calls for a judge to be faithful to the law and maintain professional competence, and Rule 3.05 which admonishes all judges to dispose of the court's business promptly and decide cases within the required periods. RULING: Petition is DISMISSED. Grant of Preliminary Injunction is SUSTAINED. Judge Luntok is REPRIMANDED. RTC at Libmanan, Camarines Sur or to which Civil Case No. L361 is presently assigned is hereby DIRECTED to expediently hear and decide the same on the merits within a mandatory period of thirty (30) days from the finality of this judgment. NOTE: I cant find the application of Canon 4, Section 8 in this case. I cant imply nor suggest any events in the case as theres nothing in my reading that would suggest such applies.