EN BANC
[ A.M. No. SB-14-21-J [Formerly A.M. No. 13-10-06-SB], September 23, 2014 ]
ALLEGATIONS MADE UNDER OATH IN SENATE BLUE RIBBON COMMITTEE HEARING +
RE: ALLEGATIONS MADE UNDER OATH AT THE SENATE BLUE RIBBON COMMITTEE HEARING HELD ON SEPTEMBER 26, 2013 AGAINST ASSOCIATE JUSTICE GREGORY S. ONG, SANDIGANBAYAN
D E C I S I O N
PER CURIAM:
- Justice Oliver Wendell Holmes
This administrative complaint was filed by the Court En Banc after investigation into certain allegations that surfaced during the Senate Blue Ribbon Committee Hearing indicated prima facie violations of the Code of Judicial Conduct by an Associate Justice of the Sandiganbayan. The investigation was conducted motu proprio pursuant to the Court's power of administrative supervision over members of the Judiciary.[1]
In the middle of 2013, the local media ran an exposé involving billions of government funds channeled through bogus foundations. Dubbed as the "pork barrel scam," as the money was sourced from the Priority Development Assistance Fund allotted to members of the House of Representatives and Senate, the controversy spawned massive protest actions all over the country. In the course of the investigation conducted by the Senate Committee on Accountability of Public Officers and Investigations (Blue Ribbon Committee), the names of certain government officials and other individuals were mentioned by "whistle-blowers" who are former employees of the alleged mastermind, Janet Lim-Napoles (Mrs. Napoles), wife of an ex-military officer. These personalities identified by the whistle-blowers allegedly transacted with or attended Mrs. Napoles' parties and events, among whom is incumbent Sandiganbayan Associate Justice Gregory S. Ong, herein respondent.
Benhur Luy (Luy), a cousin of Mrs. Napoles who had worked for several years with the Napoleses, filed illegal detention charges against Mrs. Napoles who accused him of double-dealing. When Luy went public with his story about Mrs. Napoles' anomalous transactions and before the warrant of arrest was issued by the court, she reportedly tried to reach out to the other whistle-blowers for them not to testify against her but instead point to Luy as the one receiving and distributing the money.
Marina Sula (Sula) executed a Sworn Statement[2] before the National Bureau of Investigation (NBI) on August 29, 2013, part of which reads:
32. In the sixteen (16) years that I worked with Ms. Napoles, I witnessed several personalities visit our offices and join us as our special guests during our parties and other special occasions.
33. These personalities who would either visit our office or join our events and affairs are: Senator Franklin Drilon, Senator Jinggoy Estrada and family, Senator Bong Revilla, Lani Mercado-Revilla, Bryan Revilla, Secretary Rene Villa, Congressman Pichay and Wife, Congressman Plaza, Congressman Ducut, DAR Director Theresita Panlilio, Catherine Mae Canlas Santos, Pauline Labayen, Jen Corpuz (Staff of Senator Sotto), Mayor Rene Maglanque, Atty. Dequina, Justice Gregory Ong, x x x.
34. Before the warrant of arrest was issued against Ms. Napoles, she told us that that case could take four to five years to clear. She said, "Antayin niyo munang ma-clear pangalan ko para makakilos ako at matulungan ko kayo". Sinabi niya na meron na siyang kausap sa Ombudsman at sa Sandiganbayan.
35. On 28 August 2013 while me and my companions were at the NBI, Janet Lim Napoles called me. She was crying and ask[i]ng me not to turn my back on her, that we should stay together. She said "kahit maubos lahat ng pera ko, susuportahan ko kayo. Hintay[i]n nyo kasi lalabas na ang TRO ko."
x x x x
38. Attorney Tan instructed us to implicate Benhur in case we were asked by the NBI. He said "wala naman ipinakita sa inyong masama si Madam (Janet Lim Napoles). Siguro wala naman kayong sama ng loob kay madam, kaya nga idiin ninyo si Benhur na siya ang nag-utos at saka sa kanya ninyo ibinibigay ang pera."[3] (Emphasis supplied.)
The following day, the social news network Rappler published an article by Aries Rufo entitled "Exclusive: Napoles Parties with Anti-Graft Court Justice" showing a photograph of Senator Jinggoy Estrada (Senator Estrada), one of the main public figures involved in the pork barrel scam, together with Mrs. Napoles and respondent. The reporter had interviewed respondent who quickly denied knowing Mrs. Napoles and recalled that the photograph was probably taken in one of the parties frequently hosted by Senator Estrada who is his longtime friend. Respondent also supposedly admitted that given the ongoing pork barrel controversy, the picture gains a different context; nevertheless, he insisted that he has untainted service in the judiciary, and further denied he was the one advising Mrs. Napoles on legal strategies in connection with the Kevlar helmet cases where she was acquitted by a Division of the Sandiganbayan of which respondent is the Chairman and the then Acting Presiding Justice.[4]
On September 12, 2013, Sula executed a "Karagdagang Sinumpaang Salaysay"[5] wherein she gave details regarding those persons named in her sworn statement, alleged to have visited their office or attended their events, thus:
63) T: Ayon sa paragraph Nos. 32 at 33 ng iyong sinumpaang salaysay na may petsang 29 Agosto 2013, nabanggit mo ang mga personalidad na nakikita mong bumibisita sa inyong opisina o di kaya naman sa tuwing may party o special occacions si JANET NAPOLES ay may mga special guests kayo na kinabibilangan ng mga malalaking pulitiko at ang iba naman ay may mga katungkulan sa gobyerno. Maari mo bang ilahad ang mga pangyayari sa mga bawat pagkakataon na nakita mo sila sa iyong pagkaka-alala?
S : Opo, iisa-isahin ko po ang mga pangyayari sa mga pagkakataon na nakita ko po ang mga taong nabanggit ko:
x x x x
w) Justice GREGORY ONG - Isang beses ko po siyang nakitang nagpunta sa office sa 2501 Discovery Centre, Ortigas at nakita ko po silang magkausap ni Madam JANET NAPOLES sa conference room.
x x x x[6]
In her testimony before the Senate Blue Ribbon Committee on September 26, 2013, Sula was asked to confirm her statement regarding Justice Ong, thus:
THE CHAIRMAN. Thank you, Senator Grace.
Isang tanong lang kay Ms. Sula.
Sinabi niyo kanina may tinawagan si Ms. Napoles at sinabi niya, "Malapit na lumabas yung TRO galing sa korte." May kilala pa ba si Janet Lim Napoles sa huwes sa korte sa Sandiganbayan?
MS. SULA. Hindi ko po alam.
THE CHAIRMAN. Your attention is called sa page
MS. SULA. Sandiganbayan po, sorry. Mayroon po siyang binanggit na ano po
THE CHAIRMAN. Nandito sa page 20.
MS. SULA. Si Mr. Ong, po, Justice Ong po.
THE CHAIRMAN. Gregory Ong.
MS. SULA. Opo.
THE CHAIRMAN. Sa Sandiganbayan?
MS. SULA. Opo.
x x x [7] (Emphasis supplied.)
In a letter dated September 26, 2013 addressed to Chief Justice Maria Lourdes P. A. Sereno, respondent meticulously explained the controversial photograph which raised questions on his integrity as a magistrate, particularly in connection with the decision rendered by the Sandiganbayan's Fourth Division in the Kevlar helmet cases, which convicted some of the accused but acquitted Mrs. Napoles.
Respondent surmised that the photograph was taken during the birthday of Senator Estrada in February, either in the year 2012 or 2013, but definitely not in 2010 or earlier. He explained that he could vaguely remember the circumstances but it would have been rude for him to prevent any guest from posing with him and Senator Estrada during the party. On the nature of his association with Mrs. Napoles, respondent asserted:
(4) I can categorically state, on the other hand, that I have never attended any party or social event hosted by Mrs. Napoles or her family, either before she had a case with our court, or while she already had a pending case with our court, or at any time afterwards. I have never, to use the term of Mr. Rufo in his article, "partied" with the Napoleses. (Emphasis supplied.)
As to the Kevlar helmet cases, respondent said it was impossible for him to have been advising Mrs. Napoles, as claimed by Mr. Rufo, as even the article itself noted that Mrs. Napoles' own brother, Reynald L. Lim, (a.k.a. Reynaldo L. Francisco), a co-accused in the case, was convicted by the Sandiganbayan. He stressed that these cases were decided on the merits by the Sandiganbayan, acting as a collegial body and he was not even the ponente of the decision.
Respondent thus submitted himself to the discretion of the Chief Justice such that even without being required to submit an explanation, he voluntarily did so "to defend [his] reputation as a judge and protect the Sandiganbayan as an institution from unfair and malicious innuendos."
On October 7, 2013, Chief Justice Sereno wrote the Members of this Court, citing the testimonies of Luy and Sula before the Senate Blue Ribbon Committee "[t]hat the malversation case involving Mrs. Janet Lim-Napoles, Major Jaime G. Napoles, Jenny Lim Napoles, Reynaldo L. Francisco and other perpetrators was 'fixed' (inayos) through the intervention of Justice Gregory S. Ong of the Sandiganbayan", to wit:
SEN. ANGARA. Sa inyo, hindi niyo alam kung inayos iyong kaso na iyon? Kasi napakaraming koneksiyon, 'di ba?
xxxx Sige, huwag kang matakot, Benhur.
MR. LUY. Alam ko, inayos ni Ms. Napoles iyon dahil may connect nga siya sa Sandiganbayan
SEN. ANGARA. Okay.
xxxx
THE CHAIRMAN. xxx Sinabi niyo kanina na may tinawagan si Ms. Napoles at sinabi niya "Malapit na lumabas yung TRO galing sa korte." May kilala pa ba si Janet Lim Napoles sa huwes sa korte sa Sandiganbayan?
xxxx
MS. SULA. Si Mr. Ong po, Justice Ong po.
THE CHAIRMAN. Gregory Ong.
MS. SULA. Opo.
THE CHAIRMAN. Sa Sandiganbayan?
MS. SULA. Opo.
xxxx[8]
Chief Justice Sereno then requested the Court En Banc to conduct an investigation motu proprio under this Court's power of administrative supervision over members of the judiciary and members of the legal profession (referring to notaries public who were alleged to have purposely left their specimen signatures, dry seals and notarial books with Mrs. Napoles to facilitate the incorporation of non-governmental organizations [NGOs] involved in the scam).[9]
Under our Resolution dated October 17, 2013, the Court En Banc required respondent to submit his comment and directed the NBI to furnish the Court with certified copies of the affidavit of Luy.
On November 21, 2013, the Court received respondent's Comment.[10] Respondent categorically denied any irregularity in the Kevlar helmet cases and explained the visit he had made to Mrs. Napoles as testified by Sula.
On Sula's statement, respondent points out that Sula never really had personal knowledge whether respondent is indeed the alleged "contact" of Mrs. Napoles at the Sandiganbayan; what she supposedly "knows" was what Mrs. Napoles merely told her. Hence, Sula's testimony on the matter is based purely on hearsay. Assuming that Mrs. Napoles actually made the statement, respondent believes it was given in the context of massive media coverage of the pork barrel scam exploding at the time. With the consciousness of a looming criminal prosecution before the Office of the Ombudsman and later before the Sandiganbayan, it was only natural for Mrs. Napoles to assure Sula and others involved in their business operation that she would not leave or abandon them and that she would do all that she can to help them just so they would not turn their backs on her and become whistle-blowers. Thus, even if Mrs. Napoles made misrepresentations to Sula regarding respondent as her "connection", she only had to do so in order to convince Sula and her co-employees that the cases to be filed against them would be "fixed."
As to Sula's statement that she personally witnessed respondent at one time visiting Mrs. Napoles at her office and having a meeting with her at the conference room, respondent said that at the birthday party of Senator Estrada where the controversial photograph was taken, Mrs. Napoles engaged him in a casual conversation during which the miraculous healing power of the robe or clothing of the Black Nazarene of Quiapo was mentioned. When Mrs. Napoles told respondent that she is a close friend of the Quiapo Church's parish priest, he requested her help to gain access to the Black Nazarene icon. Eventually, respondent, who is himself a Black Nazarene devotee and was undergoing treatment for his prostate cancer, was given special permission and was able to drape the Black Nazarene's robe or clothing for a brief moment over his body and also receive a fragrant ball of cotton taken or exposed to the holy image, which article he keeps to this day and uses to wipe any ailing part of his body in order to receive healing. Because of such favor, respondent out of courtesy went to see Mrs. Napoles and personally thank her. Respondent stressed that that was the single occasion Sula was talking about in her supplemental affidavit when she said she saw respondent talking with Mrs. Napoles at the conference room of their office in Discovery Suites.
Respondent maintains that there was nothing improper or irregular for him to have personally seen Mrs. Napoles at the time in order to thank her, considering that she no longer had any pending case with his court, and to his knowledge, with any other division of the Sandiganbayan at the time and even until the date of the preparation of his Comment. He thus prays that this Court duly note his Comment and accept the same as sufficient compliance with the Court's Resolution dated October 17, 2013.
This Court upon evaluation of the factual circumstances found possible transgressions of the New Code of Judicial Conduct committed by respondent. Accordingly, a Resolution was issued on January 21, 2014 stating that:
WHEREFORE, the Court hereby resolves to have the instant administrative matter RE-DOCKETED as A.M. No. SB-14-21-J (Re: Allegations Made Under Oath at the Senate Blue Ribbon Committee Hearing held on September 26, 2013 against Associate Justice Gregory S. Ong, Sandiganbayan), and ASSIGNS the same to retired Supreme Court Justice Angelina Sandoval-Gutierrez for investigation, report and recommendation within a period of sixty (60) days from notice hereof.
The Court further resolves to NOTE the letter dated January 7, 2014 of Atty. Joffre Gil C. Zapata, Executive Clerk of Court III, Sandiganbayan, Fourth Division, in compliance with the resolution of the Court En Banc dated December 3, 2013, transmitting the original records of Criminal Case Nos. 26768 and 26769. Atty. Zapata is INFORMED that there is no more need to transmit to this Court the post-sentence investigation reports and other reports on the supervisory history of the accused-probationers in Criminal Case Nos. 26768 and 26769.
Justice Angelina Sandoval-Gutierrez, a retired Member of this Court, submitted her report with the following findings and conclusions:
FACTUAL ANTECEDENTS
1. THE KEVLAR CASE
Two criminal cases were filed with the Sandiganbayan sometime in 2001 Criminal Case No. 26768 for Falsification of Public Documents and Criminal Case No. 26769 for Violation of Section 3(e) of the Anti-Graft Law. Charged were several members of Philippine Marine Corps and civilian employees including Ms. Janet L. Napoles (Napoles), her mother Magdalena Francisco (now deceased), her brother Reynaldo Francisco and wife Anna Marie Dulguime, and her (Napoles') three employees.
These cases are referred to as the Kevlar case because the issue involved is the same the questionable purchase of 500 Kevlar helmets by the Philippine Marine Corps in the amount of P3,865,310.00 from five suppliers or companies owned by Napoles.
The prosecution alleged inter alia that the accused, acting in conspiracy, released the payment although there was yet no delivery of the Kevlar helmets; that the suppliers are mere dummies of Napoles; and that the helmets were made in Taiwan, not in the U.S.A.
Napoles' husband, Major Jaime Napoles, was dropped from the two Informations in an Order issued by the Ombudsman on March 18, 2002.
Napoles' mother, brother, and sister-in-law were among those convicted for the lesser crime of Falsification of Public Documents and sentenced to suffer the penalty of 4 years and 2 months of prision correccional to 8 years and 1 day of prision mayor and each to pay P5,000.00. They all underwent probation.
Napoles and six members of the Philippine Marine Corps were acquitted in both cases.
The court ruled that Napoles "was not one of the dealer-payees in the transaction in question. Even if she owns the bank account where the 14 checks were later deposited, this does not in itself translate to her conspiracy in the crimes charged x x x."
x x x x
THE INVESTIGATION
x x x x
I. During the investigation, Benhur testified that he and Napoles are second cousins. After passing the Medical Technology Licensure Examination in 2002, he was employed in the JLN (Janet Lim Napoles) Corporation as Napoles' personal assistant. As such, he was in charge of disbursements of her personal funds and those of her office. He was also in charge of government transactions of the corporation and kept records of its daily business activities.
In the course of Benhur's employment at the JLN Corporation, Napoles mentioned to him the Kevlar case, then pending in the Sandiganbayan, saying she has a "connect" in that court who would help her.
When asked about his testimony before the Senate Blue Ribbon Committee concerning the Kevlar case, Benhur declared that Napoles' "connect" with the Sandiganbayan is respondent, thus:
Benhur further testified that even before the decision in the Kevlar case was promulgated, Napoles and respondent were already communicating with each other (nag-uusap na po sila). Therefore, she was sure the decision would be in her favor:
Going back to the hearing before the Blue Ribbon Committee, Benhur told Senator Angara that Napoles fixed the Kevlar case because she has a "connect" in the Sandiganbayan:
"Baka alam ng ibang whistle blowers kung nagkaka-ayusan sa kaso na iyon (Kevlar case). Sige huwag kang matakot Benhur."
Benhur Luy: "Alam ko inayos ni Ms. Napoles iyon dahil may connect nga siya sa Sandiganbayan."
On how Napoles "inayos" or fixed the Kevlar case, Benhur said that he kept a ledger of the Sandiganbayan case wherein he listed all her expenses in the sum of P100 million pesos. He was surprised why she would spend such amount considering that what was involved in the Kevlar case was only P3.8 million. She explained that she gave various amounts to different people during the pendency of the case which lasted up to ten years. And before the decision in the Kevlar case was released, she also gave money to respondent but she did not mention the amount. Thus, she knew she would be acquitted.
Kasi po ma'am meron kaming ledger ng Sandiganbayan case sa lahat ng nagastos ni Ms. Janet Napoles, nilista ko po yon lahat. Kasi naririnig ko po kay Janet Napoles, parang pinsan ko po si Janet Napoles, "Paano nagkaroon ng kaso ang ate ko? So nadiscover ko na lang po na yun pala yung Kevlar. So, mahigit one hundred million na nagastos po ni Ms. Napoles kasi di lang naman po si sir Justice Gregory Ong…
Continuing with his testimony, Benhur declared that in 2012, respondent went twice to Napoles' office at the Discovery Suites Center, 25 ADB Avenue, Ortigas, Pasig City. On the first visit, Napoles introduced Justice Ong to Benhur and her other employees.
Benhur narrated what transpired during that visit. According to him, Napoles has so much money being placed at the Armed Forces of the Philippines and Police Savings and Loan Association, Inc. (AFPSLAI) which offered 13% interest annually. Napoles called Benhur telling him that respondent would like to avail of such interest for his BDO check of P25.5 million. To arrange this, Napoles informed Benhur that she would just deposit respondent's P25.5 million in her personal account with Metrobank. Then she would issue to respondent in advance eleven (11) checks, each amounting to P282,000.00 as monthly interest, or a total of P3,102,000.00 equivalent to 13% interest. Upon Justice Ong's suggestion, the checks should be paid to cash. So, Benhur prepared the corresponding eleven (11) checks, thus:
On the second visit of respondent to Napoles' office, they just engaged in conversation. She ordered Chinese food for him which, according to Benhur, is his (respondent's) favorite.
On cross-examination, Benhur claimed that in his affidavits executed in the NBI, he did not mention respondent's name. However, in his reply-affidavit filed with the Sandiganbayan, he alleged that Napoles issued P282,000.00 (the amount stated in each of the 11 checks) but he did not mention the name of the payee upon instruction of his lawyer, Atty. Baligod. Nonetheless, he knew that the checks were issued to respondent.
II. Sula, also a whistle blower, testified that she was an employee of JLN Corporation. Her duties included the formation of corporations by making use of the forms, applying for business licenses, transfer of properties, purchase of cars, and others.
Sula corroborated Benhur's testimony that respondent visited the office of Napoles twice sometime in 2012.
Sula was asked to explain her testimony before the Blue Ribbon Committee during the hearing on September 26, 2013, quoted as follows:
The Chairman (Senator Teofisto Guingona III)
Sinabi ninyo na may tinawagan si Mrs. Napoles at sinabi niya, Malapit nang lumabas yung TRO galing sa korte. May kilala pa ba si Janet Lim Napoles sa huwes sa korte sa Sandiganbayan?
x x x
Ms. Sula
Si Mr. Ong po. Justice Ong po.
The Chairman
Gregory Ong?
Ms. Sula
Opo.
The Chairman
Sa Sandiganbayan?
Ms. Sula
Opo.
The Chairman
Okay. With that, I will just have a closing statement before we leave the hearing.
Sula explained that the TRO mentioned by Napoles refers to the TRO to be issued by the Sandiganbayan in the event the case involving the P10 billion PDAF scam against her is filed with that court; and that Napoles told Sula and the other employees not to worry because she has contact with the Sandiganbayan respondent Justice Ong, thus:
Sula also testified that every time Napoles talked to her and the other employees, she would say that Justice Ong will help her in the Kevlar case. Sula's testimony is as follows:
Sula likewise testified that Napoles told her and the other employees that she will fix (aayusin) the "PDAF case" in the Sandiganbayan. Then they replied in jest that her acquaintance in that court is respondent. Napoles retorted, "Ay huag na iyon kasi masyadong mataas ang talent fee."
x x x x
III. Aries Rufo, a Reporter of Rappler, testified that he cannot reveal who gave him the photograph [of respondent beside Napoles and Senator Jinggoy Estrada] because he is shielded by law and he has to protect his source.
When asked about his comment upon seeing the picture, Rufo said:
Initially, when I saw the picture, since I knew that Justice Ong was one of the members of the division that handled the Kevlar case, it aroused my curiosity why he was in that picture. Second, because in journalism, we also get to practice ethical standards, I immediately sensed though that a Justice or a lawyer, that he should not be seen or be going to a party or be in an event where respondent (Ms. Napoles) was in a case under his Division. He should not be in a situation that would compromise the integrity of his office.
Rufo further testified that on August 27, 2013, he faxed a letter to respondent to "get his side about the photo." The next day, he went to respondent's office and showed it to him. Respondent was shocked. He explained that it must have been taken during one of the parties hosted by his friend Senator Jinggoy Estrada; that he did not know that the woman in the picture is Napoles because she did not appear during the hearing of the Kevlar case; and that such picture must have been taken in one of those instances when a guest would like to pose with celebrities or public figures.
x x x x
Respondent, in his defense, vehemently denied the imputations hurled against him.
1. He asserted that he could not be the contact or "connect" of Napoles at the Sandiganbayan for he never met or came to know her during the pendency of the Kevlar case;
2. Challenging Benhur's testimony that he fixed or "inayos" the Kevlar case, respondent claimed that it was decided based on the merits by the Sandiganbayan Fourth Division as a collegial body. The two other members of the court, Justice Jose R. Hernandez (ponente) and Justice Maria Cristina J. Cornejo, are independent-minded jurists who could not be pressured or influenced by anybody, not even by their peers;
3. On Benhur's allegation that respondent received an amount of money from Napoles prior to the promulgation of the decision in the Kevlar case, respondent deplored the fact that Benhur was attempting to tarnish his reputation without any proof. And that it is unthinkable for him to have received money from Napoles considering that her mother, brother, and sister-in-law were convicted;
4. Respondent admitted he went to Napoles' office twice, sometime in March 2012, after the decision in the Kevlar case was promulgated in 2010 and narrated what prompted him to do so, thus:
At the birthday party of Senator Jinggoy Estrada on February 17, 2012, Napoles approached him and introduced herself. She engaged him in a casual conversation and thanked him for her acquittal in the Kevlar case. Respondent replied she should thank her "evidence" instead, adding that had the court found enough evidence against her, she would have been convicted. She talked about her charity works like supporting Chinese priests, building churches and chapels in China, and sponsoring Chinese Catholic priests. He was not interested though in what she was saying until she mentioned the name of Msgr. Ramirez, former Parish Priest of Quiapo Church.5. Concerning Benhur's testimony that Napoles paid respondent an advanced interest consisting of eleven (11) checks in the amount of P282,000.00 each and that he issued to her his BDO check of P25.5 million which she deposited in her account, he claimed that "he never issued that check as he did not intend to invest in AFPSLAI. In fact, he does not have any money deposited there. Inasmuch as he did not issue any BDO check, it follows that Napoles could not have given him those eleven (11) checks representing advanced interest. He further explained that he found from the internet that in AFPSLAI, an investor can only make an initial deposit of P30,000.00 every quarter or P120,000.00 per year. The limit or ceiling is P3 million with an interest of 15% or 16% per annum.
Respondent became interested because he has been a devotee of the Holy Black Nazarene since he was a little boy. Napoles told him that Msgr. Ramirez has with him the robe of the Holy Black Nazarene which has a healing power if one wears it. Then respondent asked if he can have access to the robe so he can be cured of his ailment (prostate cancer) which he keeps only to himself and to the immediate members of his family. Napoles made arrangement with Msgr. Ramirez until respondent was able to drape the robe over his body for about one or two minutes in Quiapo Church. He also received a fragrant ball of cotton which he keeps until now to heal any ailing part of his body. That was a great deal for him. So out of courtesy, he visited Napoles in her office and thanked her. That was his first visit.
Thereafter, Napoles kept on calling respondent, inviting him to her office, but he kept on declining. Then finally after two weeks, he acceded for she might think he is "walang kwentang tao." They just engaged in a small talk for about 30 minutes and had coffee.
6. The whistle blower's testimony are conflicting and therefore lack credibility. While Sula testified that Napoles told her that she did not want to approach respondent (should a case involving the pork barrel scam be filed with the Sandiganbayan) because his talent fee is too high, however, both whistle blowers claimed that he is Napoles' contact in the Sandiganbayan.
With respect to the Rappler Report, according to respondent, Rufo was insinuating four things:
1. That there was irregularity in the manner the Kevlar case was decided;Respondent "dismissed all the above insinuations as false and without factual basis." As to the last insinuation that he advised Napoles about legal strategies to be pursued in the Kevlar case, respondent stressed that the case was decided by a collegial body and that he never interceded on her behalf.
2. That respondent was close to Napoles even during the pendency of the Kevlar case;
3. That respondent was attending parties of the Napoleses; and
4. That respondent was advising Napoles about legal strategies relative to the Kevlar case.
EVALUATION
x x x x
It bears stressing that before the Senate Blue Ribbon Committee, Benhur initially testified that Napoles fixed or "inayos" the Kevlar case because she has a contact at the Sandiganbayan, referring to respondent. Sula corroborated Benhur's testimony.
Testifying before the Senate Blue Ribbon Committee is certainly an ordeal. The witnesses and everything they say are open to the public. They are subjected to difficult questions propounded by the Senators, supposedly intelligent and knowledgeable of the subject and issues under inquiry. And they can easily detect whether a person under investigation is telling the truth or not. Considering this challenging and difficult setting, it is indubitably improbable that the two whistle blowers would testify falsely against respondent.
Moreover, during the investigation of this case, Benhur and Sula testified in a candid, straightforward, and categorical manner. Their testimonies were instantaneous, clear, unequivocal, and carried with it the ring of truth.
In fact, their answers to the undersigned's probing questions were consistent with their testimonies before the Senate Blue Ribbon Committee. During cross-examination, they did not waver or falter. The undersigned found the two whistle blowers as credible witnesses and their story untainted with bias and contradiction, reflective of honest and trustworthy witnesses.
The undersigned therefore finds unmeritorious respondent's claim that Benhur and Sula were lying.
…respondent insisted he could not have intervened in the disposition of the Kevlar case considering that Napoles' mother, brother and sister-in-law were convicted.
Respondent must have forgotten that Napoles' natural instinct was self-preservation. Hence, she would avail of every possible means to be exonerated. Besides, respondent's belief that the two members of his Division are independent-minded Jurists remains to be a mere allegation.
x x x x
With the undersigned's finding that there is credence in the testimonies of Benhur and Sula, there is no need to stretch one's imagination to arrive at the inevitable conclusion that in "fixing" Kevlar case, money could be the consideration... Benhur testified he kept a ledger (already shredded) of expenses amounting to P100 million incurred by Napoles for the Sandiganbayan during the pendency of the Kevlar case which extended up to ten years; and that Napoles told him she gave respondent an undetermined sum of money.
Respondent maintains that the testimonies of Benhur and Sula are pure hearsay, inadmissible in evidence:
Justice Ong
Your honor, since these are all accusations against me by Luy and Sula, and according to Luy and Sula, these were only told to them by Napoles, always their statements were…they do not have personal knowledge, it was only told to them by Napoles, is it possible that we subpoena Napoles so that the truth will come out? If…
x x x x
Justice Gutierrez
That is your prerogative.
Justice Ong
I am willing to take the risk although I know I am not an acquaintance of Napoles. Just to clear my name whether I should be hung or I should not be hung.
x x x x
Atty. Geronilla
I don't think it would be necessary, your honor.
Justice Gutierrez (to Atty. Geronilla)
Discuss this matter with your client, file a motion, then we will see.
However, respondent and his counsel did not take any action on the undersigned's suggestion. They did not present Napoles to rebut the testimonies of Benhur and Sula. Significantly, respondent failed to consider that his testimony is likewise hearsay. He should have presented Msgr. Ramirez and Napoles as witnesses to support his claim regarding their role which enabled him to wear the robe of the Holy Black Nazarene.
x x x x
Respondent's acts of allowing himself to be Napoles' contact in the Sandiganbayan, resulting in the fixing of the Kevlar case, and of accepting money from her, constitute gross misconduct, a violation of the New Code of Judicial Conduct for the Philippine Judiciary.
x x x x
That Benhur personally prepared the eleven (11) checks which Napoles handed to respondent led the undersigned to conclude without hesitation that this charge is true. It is highly inconceivable that Benhur could devise or concoct his story. He gave a detailed and lucid narration of the events, concluding that actually Napoles gave respondent P3,102,000.00 as advanced interest.
According to respondent, the purpose of his first visit was to thank Napoles for making it possible for him to wear the Holy Black Nazarene's robe. Even assuming it is true, nonetheless it is equally true that during that visit, respondent could have transacted business with Napoles. Why should Napoles pay respondent an advanced interest of P3,102,000.0 with her own money if it were not a consideration for a favor?
Respondent's transgression pertains to his personal life and no direct relation to his judicial function. It is not misconduct but plain dishonesty. His act is unquestionably disgraceful and renders him morally unfit as a member of the Judiciary and unworthy of the privileges the law confers on him. Furthermore, respondent's conduct supports Benhur's assertion that he received money from Napoles.
Dishonesty likewise violates Canon 2 (1 and 2) on Integrity of the same Code providing in part that judges must ensure that their conduct is above reproach and must reaffirm the people's faith in the integrity of the Judiciary.
Indeed, respondent should not stay in his position even for a moment.
x x x x
...From respondent's end, there was nothing wrong when he visited Napoles twice in her office considering that the visits took place long after the promulgation of the decision in the Kevlar case.
Contrary to respondent's submission, such acts also constitute gross misconduct in violation of Canon 4 on Propriety of the same Code. Section 1 provides that judges shall avoid impropriety and the appearance of impropriety in all of their activities.
…respondent's reason for his first visit was to thank Napoles for her help in making it possible for him to wear the robe of the Holy Black Nazarene. Instead of visiting her, respondent could have extended his gratitude by simply calling her by phone. Worse, he visited her again because she may think he is an unworthy person. This is an extremely frail reason. He was seen by the whistle blowers and their co-workers who, without doubt, readily confirmed that he was Napoles' contact at the Sandiganbayan and that he "fixed" the decision in the Kevlar case.
Respondent cannot be excused for his unconcern for the position he holds. Being aptly perceived as the visible personification of law and justice, his personal behavior, not only while in the performance of official duties but also outside the court, must be beyond reproach. A judicial office circumscribes a personal conduct and imposes a number of inhibitions, whose faithful observance is the price one has to pay for holding an exalted position.
x x x xThis incident manifests respondent's disregard of the dictum that propriety and the appearance of propriety are essential to the performance of all the activities of a judge. This exacting standard of decorum is demanded from judges to promote public confidence in the integrity of the Judiciary.
On the photograph showing respondent
with Senator Jinggoy Estrada and Napoles.
x x x x
In joining Senator Estrada and Napoles in a picture taking, respondent gave a ground for reproach by reason of impropriety. It bears reiterating Canon 4 (1) on Propriety of the same Code which provides that judges shall avoid impropriety and the appearance of impropriety in all of their activities.
Respondent maintained that he did not know Napoles at that time because she was not present before the Sandiganbayan during the hearing of the Kevlar case for she must have waived her appearance. Respondent's explanation lacks merit. That court could not have acquired jurisdiction over her if she did not appear personally for arraignment.
Of utmost significance is the fact that this is not the first time that respondent has been charged administratively. In "Assistant Special Prosecutor III Rohermina J. Jamsani-Rodriguez v. Justices Gregory S. Ong, Jose R. Hernandez and Rodolfo A. Ponferrada, Sandiganbayan," the Supreme Court found respondent Justice Ong guilty of violation of PD 1606 and The Revised Internal Rules of the Sandiganbayan for non-observance of collegiality in hearing criminal cases in the Hall of Justice, Davao City. Instead of siting as a collegial body, the members of the Sandiganbayan Fourth Division adopted a different procedure. The Division was divided into two. As then Chairperson of the Division, respondent was ordered to pay a fine of P15,000.00 with a stern warning that a repetition of the same or similar offense shall be dealt with more severely.
x x x x
…the undersigned cannot hold back her skepticism regarding the acquittal of Napoles. The Sandiganbayan Fourth Division, of which respondent was the Chairman, held that Napoles did not conspire with the suppliers in the questionable purchase of the Kevlar helmets as she was not one of the "dealer-payees" in the transaction in question and that there was no proof of an overt act on her part. How could the Fourth Division arrive at such conclusion? The Decision itself indicates clearly that (1) Napoles was following up the processing of the documents; (2) that she was in charge of the delivery of the helmets; and (3) the checks amounting to P3,864,310.00 as payment for the helmets were deposited and cleared in only one bank account, Security Bank Account No. 512-000-2200, in the name of Napoles.
Considering this glaring irregularity, it is safe to conclude that indeed respondent has a hand in the acquittal of Napoles. All along, the whistle blowers were telling the truth.
x x x x
RECOMMENDATION
IN VIEW OF THE FOREGOING, It is respectfully recommended, for consideration of the Honorable Court, that respondent Justice Gregory S. Ong be found GUILTY of gross misconduct, dishonesty, and impropriety, all in violations of the New Code of Judicial Conduct for the Philippine Judiciary and be meted the penalty of DISMISSAL from the service WITH FORFEITURE of all retirement benefits, excluding accrued leave credits, and WITH PREJUDICE to reemployment to any government, including government-owned or controlled corporations.
x x x x
This Court adopts the findings, conclusions and recommendations of the Investigating Justice which are well-supported by the evidence on record.
Based on the testimonies of Luy, Sula and Rufo, the Investigating Justice formulated the charges against the respondent, as follows:
- Respondent acted as contact of Napoles in connection with the Kevlar case while it was pending in the Sandiganbayan Fourth Division wherein he is the Chairman;
- Respondent, being Napoles' contact in the Sandiganbayan, fixed the Kevlar case resulting in her acquittal;
- Respondent received an undetermined amount of money from Napoles prior to the promulgation of the decision in the Kevlar case thus, she was sure ("kampante") of her acquittal;
- Respondent visited Napoles in her office where she handed to him eleven (11) checks, each amounting to P282,000.00 or a total of P3,102,000.00, as advanced interest for his P25.5 million BDO check she deposited in her personal account; and
- Respondent attended Napoles' parties and was photographed with Senator Estrada and Napoles.[11]
Respondent thus stands accused of gross misconduct, partiality and corruption or bribery during the pendency of the Kevlar case, and impropriety on account of his dealing and socializing with Napoles after her acquittal in the said case. Additionally, respondent failed to disclose in his September 26, 2013 letter to Chief Justice Sereno that he had actually visited Napoles at her office in 2012, as he vehemently denied having partied with or attended any social event hosted by her.
Misconduct is a transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, unlawful behavior, willful in character, improper or wrong behavior; while "gross" has been defined as "out of all measure beyond allowance; flagrant; shameful; such conduct as is not to be excused."[12] We agree with Justice Sandoval-Gutierrez that respondent's association with Napoles during the pendency and after the promulgation of the decision in the Kevlar case resulting in her acquittal, constitutes gross misconduct notwithstanding the absence of direct evidence of corruption or bribery in the rendition of the said judgment.
We cannot overemphasize that in administrative proceedings, only substantial evidence, i.e., that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion, is required. The standard of substantial evidence is satisfied when there is reasonable ground to believe that respondent is responsible for the misconduct complained of, even if such evidence might not be overwhelming or even preponderant.[13]
The testimonies of Luy and Sula established that Napoles had been in contact with respondent ("nag-uusap sila") during the pendency of the Kevlar case. As Napoles' trusted staff, they (especially Luy who is a cousin) were privy to her daily business and personal activities. Napoles constantly updated them of developments regarding the case. She revealed to them that she has a "connect" or "contact" in the Sandiganbayan who will help "fix" the case involving her, her mother, brother and some employees. Having closely observed and heard Napoles being confident that she will be acquitted even prior to the promulgation of the decision in the Kevlar case, they were convinced she was indeed in contact with respondent, whose identity was earlier divulged by Napoles to Luy. Luy categorically testified that Napoles told him she gave money to respondent but did not disclose the amount. There was no reason for them to doubt Napoles' statement as they even keep a ledger detailing her expenses for the "Sandiganbayan," which reached P100 million. Napoles' information about her association with respondent was confirmed when she was eventually acquitted in 2010 and when they saw respondent visit her office and given the eleven checks issued by Napoles in 2012.
Respondent maintains that the testimonies of Luy and Sula were hearsay as they have no personal knowledge of the matters they were testifying, which were merely told to them by Napoles. Specifically, he points to portions of Sula's testimony indicating that Napoles had not just one but "contact persons" in Ombudsman and Sandiganbayan; hence, it could have been other individuals, not him, who could help Napoles "fix" the Kevlar case, especially since Napoles never really disclosed to Sula who was her (Napoles) contact at the Sandiganbayan and at one of their conversations Napoles even supposedly said that respondent's "talent fee" was too high.
Bribery is committed when a public officer agrees to perform an act in connection with the performance of official duties in consideration of any offer, promise, gift or present received.[14] A judge who extorts money from a party-litigant who has a case before the court commits a serious misconduct and this Court has condemned such act in the strongest possible terms. Particularly because it has been committed by one charged with the responsibility of administering the law and rendering justice, it quickly and surely corrodes respect for law and the courts.[15]
An accusation of bribery is easy to concoct and difficult to disprove. The complainant must present a panoply of evidence in support of such an accusation. Inasmuch as what is imputed against the respondent judge connotes a grave misconduct, the quantum of proof required should be more than substantial.[16] Concededly, the evidence in this case is insufficient to sustain the bribery and corruption charges against the respondent. Both Luy and Sula have not witnessed respondent actually receiving money from Napoles in exchange for her acquittal in the Kevlar case. Napoles had confided to Luy her alleged bribe to respondent.
Notwithstanding the absence of direct evidence of any corrupt act by the respondent, we find credible evidence of his association with Napoles after the promulgation of the decision in the Kevlar case. The totality of the circumstances of such association strongly indicates respondent's corrupt inclinations that only heightened the public's perception of anomaly in the decision-making process. By his act of going to respondent at her office on two occasions, respondent exposed himself to the suspicion that he was partial to Napoles. That respondent was not the ponente of the decision which was rendered by a collegial body did not forestall such suspicion of partiality, as evident from the public disgust generated by the publication of a photograph of respondent together with Napoles and Senator Jinggoy Estrada. Indeed, the context of the declarations under oath by Luy and Sula before the Senate Blue Ribbon Committee, taking place at the height of the "Pork Barrel" controversy, made all the difference as respondent himself acknowledged. Thus, even in the present administrative proceeding, their declarations are taken in the light of the public revelations of what they know of that government corruption controversy, and how it has tainted the image of the Judiciary.
The hearsay testimonies of Luy and Sula generated intense public interest because of their close relationship to Napoles and their crucial participation in her transactions with government officials, dubbed by media as the "Pork Barrel Queen." But as aptly observed by Justice Sandoval-Gutierrez, the "challenging and difficult setting" of the Senate hearings where they first testified, made it highly improbable that these whistle blowers would testify against the respondent. During the investigation of this case, Justice Sandoval-Gutierrez described their manner of testifying as "candid, straightforward and categorical." She likewise found their testimonies as "instantaneous, clear, unequivocal, and carried with it the ring of truth," and more important, these are consistent with their previous testimonies before the Senate; they never wavered or faltered even during cross-examination.
It is a settled rule that the findings of investigating magistrates are generally given great weight by the Court by reason of their unmatched opportunity to see the deportment of the witnesses as they testified.[17] The rule which concedes due respect, and even finality, to the assessment of credibility of witnesses by trial judges in civil and criminal cases applies a fortiori to administrative cases.[18] In particular, we concur with Justice Sandoval-Gutierrez's assessment on the credibility of Luy and Sula, and disagree with respondent's claim that these witnesses are simply telling lies about his association with Napoles.
Contrary to respondent's submission, Sula in her testimony said that whenever Napoles talked about her contacts in the Ombudsman and Sandiganbayan, they knew that insofar as the Sandiganbayan was concerned, it was understood that she was referring to respondent even as she may have initially contacted some persons to get to respondent, and also because they have seen him meeting with Napoles at her office. It appears that Napoles made statements regarding the Kevlar case not just to Luy but also to the other employees of JLN Corporation. The following are excerpts from Sula's testimony on direct examination, where she even hinted at their expected outcome of the Kevlar case:
Atty. Benipayo Q So, Ms. Sula, what were the statements being made by Ms. Janet Lim Napoles regarding her involvement in the Kevlar case, or how she was trying to address the problem with the Kevlar case pending before the Sandiganbayan? Witness Sula A Ang alam ko po kasi marami po siyang kinaka-usap na mga lawyers na binabayaran niya para tulungan siya kay Gregory Ong sa Kevlar case. Tapos, sa kalaunan po, nasabi na niya sa amin na meron na po siyang nakilala sa Sandiganbayan na nagngangalang Justice Gregory Ong. Tapos, sabi niya, siya po ang tutulong sa amin para ma-clear kami. Pero hindi niya sinabi na meron din pong ma…sasagot sa kaso. Hindi po lahat, kasi po dalawa sa mga empleyado niya, bale apat, dalawang empleyado niya, isang kapatid niya at sister-in-law ang mag-aano sa kaso pati yung mother niya na namatay na ay sasagot din sa kaso. Siya lang at saka yung asawa niya ang bale makli-clear sa kaso. Q So, she told you that two (2) employees, one (1) sister-in-law and one brother will answer for the case and Janet Lim Napoles and her husband will be acquitted, is that right? A Yun po ang aking pagkaka-alam kasi po, nag-petition po kasi sila eh, yung mga officemates ko. Nagkaroon ng probation. Noong lumabas ang hatol, meron silang probation period. x x x x Q Which you told me that somebody will help in the Kevlar case? A Opo. Sinabi po niya sa amin everytime po pag nagkukwento siya, sinasabi niya na si Justice Ong ang tutulong sa kanya para ma-clear po yung Kevlar case niya. x x x x[19] (Emphasis supplied.)
As it turned out, Napoles' husband was dropped from the two informations while her mother, brother and sister-in-law were convicted in the lesser charge of falsification of public documents. Apparently, after her acquittal, Napoles helped those convicted secure a probation. But as stated in our earlier resolution, the Court will no longer delve into the merits of the Kevlar case as the investigation will focus on respondent's administrative liability.
Respondent's act of voluntarily meeting with Napoles at her office on two occasions was grossly improper and violated Section 1, Canon 4 (Propriety) of the New Code of Judicial Conduct, which took effect on June 1, 2004.
SECTION 1. Judges shall avoid impropriety and the appearance of impropriety in all of their activities.
A judge must not only be impartial but must also appear to be impartial and that fraternizing with litigants tarnishes this appearance.[20] Public confidence in the Judiciary is eroded by irresponsible or improper conduct of judges. A judge must avoid all impropriety and the appearance thereof. Being the subject of constant public scrutiny, a judge should freely and willingly accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen.[21]
In Cañeda v. Alaan,[22] we held that:
Judges are required not only to be impartial but also to appear to be so, for appearance is an essential manifestation of reality. Canon 2 of the Code of Judicial Conduct enjoins judges to avoid not just impropriety in their conduct but even the mere appearance of impropriety.
They must conduct themselves in such a manner that they give no ground for reproach.
[Respondent's] acts have been less than circumspect. He should have kept himself free from any appearance of impropriety and endeavored to distance himself from any act liable to create an impression of indecorum.
x x x x
Indeed, respondent must always bear in mind that:
"A judicial office traces a line around his official as well as personal conduct, a price one has to pay for occupying an exalted position in the judiciary, beyond which he may not freely venture. Canon 2 of the Code of Judicial Conduct enjoins a judge to avoid not just impropriety in the performance of judicial duties but in all his activities whether in his public or private life. He must conduct himself in a manner that gives no ground for reproach." (Emphasis supplied.)
On this score, our previous pronouncements have enjoined judges to avoid association or socializing with persons who have pending cases before their court. Respondent cites the case of Abundo v. Manio, Jr.[23] where this Court did not find fault with a judge who was charged with fraternizing with his lawyer-friend. In that case, we said:
Respondent admits that he and Atty. Pajarillo became close friends in 1989 when they were both RTC judges stationed in Naga City. Since they both resided in Camarines Norte, Atty. Pajarillo hitched rides with respondent to Daet, Camarines Norte in the latter's car.
In his Comment, respondent claims that he leaves the door to his chambers open to lawyers or parties with official court business, whose requests and complaints regarding their cases he listens to in full view of his staff, who are witnesses to his transparency and honesty in conducting such dialogues. He also admits that Atty. Pajarillo has been to his house on several occasions, but only to make emergency long-distance calls to his children in Metro Manila. He, however, denies that he and Atty. Pajarillo were frequently seen eating and drinking together in public places.
We agree with Justice Buzon's finding that the evidence against respondent on this point was insufficient, viz.:
"On the other hand, the admission of respondent that he attended two public functions where Atty. Pajarillo was also present; that Atty. Pajarillo had been in his house twice or thrice and used his telephone; and that he receives lawyers, including Atty. Pajarillo, and litigants inside his chambers, the door to which is always open so that [the] staff could see that no under the table transactions are taking place, is not proof that he is fraternizing with Atty. Pajarillo. A judge need not ignore a former colleague and friend whenever they meet each other or when the latter makes requests which are not in any manner connected with cases pending in his court. Thus, Canon 30 of the Canons of Judicial Ethics provides:
'30. Social relations
It is not necessary to the proper performance of judicial duty that judges should live in retirement or seclusion; it is desirable that, so far as the reasonable attention to the completion of their work will permit, they continue to mingle in social intercourse, and that they should not discontinue their interests in or appearance at meetings of members at the bar. A judge should, however, in pending or prospective litigation before him be scrupulously careful to avoid such action as may reasonably tend to waken the suspicion that his social or business relations or friendships constitute an element in determining his judicial course.'"
The factual setting in Abundo v. Manio, Jr. is not similar to the present case because Napoles was not a colleague or lawyer-friend but an accused in a former case before the Sandiganbayan's Fourth Division chaired by respondent and which acquitted her from malversation charge. What respondent perhaps want to underscore is the caveat for judges, in pending or prospective litigation before them, to avoid such action as may raise suspicion on their partiality in resolving or deciding the case. Thus, he emphasized in his Memorandum that he "never knew Napoles on a personal level while she was still on trial as an accused in Kevlar helmet case." Respondent even quoted Sula's testimony expressing her opinion that she finds nothing wrong with respondent going to Napoles' office because at that time, the Kevlar case had already been terminated.
We do not share the view that the rule on propriety was intended to cover only pending and prospective litigations.
Judges must, at all times, be beyond reproach and should avoid even the mere suggestion of partiality and impropriety.[24] Canon 4 of the New Code of Judicial Conduct states that "[p]ropriety and the appearance of propriety are essential to the performance of all the activities of a judge." Section 2 further provides:
SEC. 2. As a subject of constant public scrutiny, judges must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, judges shall conduct themselves in a way that is consistent with the dignity of the judicial office.
As we held in Sibayan-Joaquin v. Javellana[25]
…Judges, indeed, should be extra prudent in associating with litigants and counsel appearing before them so as to avoid even a mere perception of possible bias or partiality. It is not expected, of course, that judges should live in retirement or seclusion from any social intercourse. Indeed, it may be desirable, for instance, that they continue, time and work commitments permitting, to relate to members of the bar in worthwhile endeavors and in such fields of interest, in general, as are in keeping with the noble aims and objectives of the legal profession. In pending or prospective litigations before them, however, judges should be scrupulously careful to avoid anything that may tend to awaken the suspicion that their personal, social or sundry relations could influence their objectivity, for not only must judges possess proficiency in law but that also they must act and behave in such manner that would assure, with great comfort, litigants and their counsel of the judges' competence, integrity and independence.
In this light, it does not matter that the case is no longer pending when improper acts were committed by the judge. Because magistrates are under constant public scrutiny, the termination of a case will not deter public criticisms for acts which may cast suspicion on its disposition or resolution. As what transpired in this case, respondent's association with Napoles has unfortunately dragged the Judiciary into the "Pork Barrel" controversy which initially involved only legislative and executive officials. Worse, Napoles' much-flaunted "contact" in the judiciary is no less than a Justice of the Sandiganbayan, our special court tasked with hearing graft cases. We cannot, by any stretch of indulgence and compassion, consider respondent's transgression as a simple misconduct.
During his testimony, respondent acknowledged his violation of judicial ethics and its serious repercussions, as shown by his answers to the questions from the Investigation Justice, viz:
In her report, Justice Sandoval-Gutierrez noted that respondent's purported reason for visiting Napoles in her office remains uncorroborated, as Napoles and the Quiapo parish priest were not presented as witnesses despite her suggestion to respondent and his counsel. On the other hand, Luy's testimony on what transpired in one of respondent's meeting with Napoles at her office appears to be the more plausible and truthful version. Expectedly, respondent denied having issued a BDO check for P25.5 million as claimed by Luy, and asserted he (respondent) did not deposit any money to AFPSLAI. Unfortunately, Luy is unable to present documentary evidence saying that, as previously testified by him before the Senate, most of the documents in their office were shredded upon orders of Napoles when the "Pork Barrel Scam" controversy came out.
Justice Sandoval-Gutierrez stated that the eleven checks of P282,000.00 supposed advance interest for respondent's check deposit to AFPSLAI were given to respondent as consideration for the favorable ruling in the Kevlar case. Such finding is consistent with Luy's testimony that Napoles spent a staggering P100 million just to "fix" the said case. Under the circumstances, it is difficult to believe that respondent went to Napoles office the second time just to have coffee. Respondent's act of again visiting Napoles at her office, after he had supposedly merely thanked her during the first visit, tends to support Luy's claim that respondent had a financial deal with Napoles regarding advance interest for AFPSLAI deposit. The question inevitably arises as to why would Napoles extend such an accommodation to respondent if not as consideration for her acquittal in the Kevlar case? Respondent's controversial photograph alone had raised adverse public opinion, with the media speculating on pay-offs taking place in the courts.
Regrettably, the conduct of respondent gave cause for the public in general to doubt the honesty and fairness of his participation in the Kevlar case and the integrity of our courts of justice. Before this Court, even prior to the commencement of administrative investigation, respondent was less than candid. In his letter to the Chief Justice where he vehemently denied having attended parties or social events hosted by Napoles, he failed to mention that he had in fact visited Napoles at her office. Far from being a plain omission, we find that respondent deliberately did not disclose his social calls to Napoles. It was only when Luy and Sula testified before the Senate and named him as the "contact" of Napoles in the Sandiganbayan, that respondent mentioned of only one instance he visited Napoles ("This is the single occasion that Sula was talking about in her supplemental affidavit x x x"[27]).
The Court finds that respondent, in not being truthful on crucial matters even before the administrative complaint was filed against him motu proprio, is guilty of Dishonesty, a violation of Canon 3 (Integrity) of the New Code of Judicial Conduct.
Dishonesty is a "disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray." [28] Dishonesty, being a grave offense, carries the extreme penalty of dismissal from the service with forfeiture of retirement benefits except accrued leave credits, and with perpetual disqualification from re-employment in government service. Indeed, dishonesty is a malevolent act that has no place in the Judiciary.[29]
Under Section 11(A), Rule 140 of the Rules of Court, a respondent found guilty of a serious charge may be penalized as follows:
SEC. 11. Sanctions. A. If the respondent is guilty of a serious charge, any of the following sanctions may be imposed:
1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or -controlled corporations. Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits;
2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or
3. A fine of more than P20,000.00 but not exceeding P40,000.00.
Considering that respondent is not a first time offender and the charges of gross misconduct and dishonesty are both grave offenses showing his unfitness to remain as a magistrate of the special graft court, we deem it proper to impose the supreme penalty of dismissal.
WHEREFORE, the Court finds respondent Sandiganbayan Associate Justice Gregory S. Ong GUILTY of GROSS MISCONDUCT, DISHONESTY and IMPROPRIETY, all in violations of the New Code of Judicial Conduct for the Philippine Judiciary, for which he is hereby DISMISSED from the service, with forfeiture of all retirement benefits, except accrued leave credits, if any, and with prejudice to reemployment in any branch, agency or instrumentality of the government including government-owned or -controlled corporations.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
Sereno, C.J., Carpio, Del Castillo, Villarama, Jr., and Perlas-Bernabe, JJ., concur.
Velasco, Jr., J., I dissent. I join the opinion of J. Perez and J. Reyes.
Leonardo-De Castro, and Peralta, JJ., no Part.
Brion, J., see: separate and concurring opinion.
Bersamin, J., with concurring & dissenting opinion.
Perez, J., please see concurring and dissenting opinion.
Mendoza, J., joining J. Perez and J. Reyes in their dissents.
Reyes, J., see concurring and dissenting opinion.
Leonen, J., see separate concurring opinion.
Jardeleza, J., see concurring opinion.
[1] Sections 6 and 11, Art. VIII of the 1987 Constitution state:
SEC. 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof.
SEC. 11. … The Supreme Court En Banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.
[2] Rollo, pp. 210-229.
[3] Id. at 226-228.
[4] Sourced from Internet - Disciplinary proceedings for members of the judiciary are sui generis investigative proceedings requiring substantial evidence to reach a conclusion and Decision in Criminal Case Nos. 26768-69 promulgated on October 28, 2010 and Resolution issued on September 20, 2011, records, Volume 8, pp. 11-52, 247-254.
[5] Rollo, pp. 258-282.
[6] Id. at 278-281.
[7] Id. at 198.
[8] As cited in the letter dated October 7, 2013, id. at 1.
[9] Id. at 1-2.
[10] Id. at 6-25.
[11] Report and Recommendation, p. 16.
[12] Camus, Jr. v. Alegre, 583 Phil. 738, 749 (2008).
[13] Jallorina v. Taneo-Regner, A.M. No. P-11-2948, April 23 2012, 670 SCRA 301, 307, citing Banaag v. Espeleta, A.M. No. P-11-3011, November 29, 2011, 2011, 661 SCRA 513, 521.
[14] Art. 210, Revised Penal Code.
[15] Atty. Velez v. Judge Flores, 445 Phil. 54, 64 (2003), citing Haw Tay v. Singayao, 238 Phil. 103, 107-108 (1987), Quiz v. Castaño, 194 Phil. 187 (1981) and Nazareno v. Almario, 335 Phil. 1122 (1997).
[16] Ong v. Rosete, 484 Phil. 102, 113 (2004); Manalastas v. Flores, 466 Phil. 925, 938 (2004); Co v. Judge Calimag, Jr., 389 Phil. 389, 395 (2000), citing Castaños v. Escano, Jr., 321 Phil. 527 (1995).
[17] Gacad v. Clapis, Jr., A.M. No RTJ-10-2257, July 17, 2012, 676 SCRA 534, 543, citing Ocampo v. Arcaya-Chua, A.M. No. RTJ-07-2093, April 23, 2010, 619 SCRA 59, 125, further citing Vidallon-Magtolis v. Salud, 506 Phil. 423, 442 (2005).
[18] Id., citing Ferreras v. Eclipse, A.M. No. P-05-2085, January 20, 2010, 610 SCRA 359, 374.
[19] TSN, February 12, 2014, pp. 71-73.
[20] De Guzman, Jr. v. Sison, 407 Phil. 351, 374 (2001).
[21] Padilla v. Zantua, Jr., A.M. No. MTJ-93-888, October 24, 1994, 237 SCRA 670, 675-676.
[22] 425 Phil. 20, 26-27 (2002).
[23] 370 Phil. 850, 866-867 (1999).
[24] Agunday v. Tresvalles, 377 Phil. 141, 155 (1999).
[25] 420 Phil. 584, 590 (2001).
[26] TSN, March 21, 2014, pp. 52-54.
[27] Comment of Justice Ong, p. 20.
[28] De Vera v. Rimas, 577 Phil. 136, 142-143 (2008), citing Corpuz v. Ramiterre, 512 Phil. 506, 518 (2005).
[29] Id. at 143, citing A Very Concerned Employee and Citizen v. Mateo, 565 Phil. 657, 665 (2007).
BRION, J.:
I write this Opinion to support Associate Justice Martin S. Villarama, Jr.'s conclusion that the respondent Justice Gregory Ong (Justice Ong), Chairman of the Fourth Division of the Sandiganbayan, should be dismissed from the service for gross misconduct, dishonesty and impropriety.
I likewise submit this Opinion to express my disagreement with the opinions of Associate Justices Lucas P. Bersamin, Jose P. Perez and Bienvenido L. Reyes that Justice Ong should only be penalized for simple misconduct and meted the lighter penalty of three to six months suspension.
I take this opportunity, too, to draw the Court's attention to the administrative offense of gross misconduct where the underlying act involved is bribery. If the Court is serious about its anti-corruption intentions, it is high time that it makes itself clear on the needed quantum of evidence to support a finding of administrative liability, in contrast with the quantum of evidence needed to find a public officer guilty of bribery in a criminal proceeding.
An administrative offense, as has been established, should be proven by substantial evidence as it involves an administrative proceeding; a criminal case, on the other hand, necessarily requires proof beyond reasonable doubt. Furthermore, we should clarify in the strongest terms that no need exists to apply in an administrative proceeding an amorphous quantum of evidence higher than substantial evidence in the manner a Member of this Court advocates.
I likewise posit that the present case should serve as a wake-up call for us to re-examine the use of hearsay evidence in disciplinary proceedings, when the serious charge of bribery (or gross misconduct based on bribery) is involved. We have disallowed the use of hearsay evidence in the past. Should we continue with this rule?
Bribery, like rape, is a transgression that is almost never committed in public view. It thrives and prospers in the dark, in secrecy. But this illegality is not totally unknown to the Members of this Court; we all know that bribery is happening in our midst. The media hints at it; law practitioners talk about it and do not even do so in whispers; clients accept it as a fact of litigation and readily accept their counsels' claim for extra expenses "para kay justice, para kay judge o para kay fiscal" a grave injustice to many in the judiciary and the prosecution service who have strictly trodden the high road of morality in the public service.
In one recent administrative matter, we even asked a leading and high profile law practitioner to explain the claim she made in a leading radio station that bribery exists in the High Court.[1] She blithely escaped sanction by claiming that she only "heard" about the bribery she spoke about, but at the same time hinted that she could not speak about this charge because she has cases before this Court.
Thus, as a practical reality, this Court is now in a public denial mode about bribery and does so by maintaining the rule that disallows hearsay evidence in disciplinary proceedings, even if the hearsay testimony is already confirmed by the totality of the evidence on record.
Additionally, we should admit that judges, based on their knowledge, training and experience, should be adept at recognizing, proving (and consequently evading) the administrative offense of bribery. This reality should make us aware (if, for some reason, we have not yet reached this level of cognition) that we would effectively be condoning the presence of the offenders among us if from the very start we adopt the rule that we should not consider hearsay evidence at all. In this sense, all of us the Members of this Court may ourselves be worthy of blame for the proliferation of corruption in the judiciary.
The better approach, I believe, is to allow the investigating judges and justices sufficient discretion to admit hearsay evidence, subject to guidelines in determining its probative value. (I dwell at length on this point in the discussions below.)
This approach, in my view, gives the Court flexibility in disciplining its ranks without sacrificing both the fairness that should be accorded the respondent judges, judicial officials and employees, and the character of reliability that evidence must carry to support a finding of administrative liability.
I. Antecedents
The present administrative case against Justice Ong sprang from various testimonies given by whistleblowers Benhur Luy (Luy) and Marina Sula (Sula) at the height of the pork barrel scam scandal.
Both Luy and Sula had been employees of Janet Lim-Napoles (Napoles), the main personality involved in the high profile scandal, more popularly known as the pork barrel scam. Both claimed to have helped facilitate Napoles' nefarious schemes. In the course of offering their testimonies against Napoles, they claimed that Justice Ong was Napoles' "contact man" at the Sandiganbayan the country's anti-graft court.
In a sworn statement filed before the National Bureau of Investigation (NBI), Sula narrated that Napoles urged her not to testify against her, and promised that she would help Sula once she is able to clear her name. Sula also named Justice Ong to be among those who had visited Napoles' office.
The day following the execution of Sula's sworn statement, Aries Rufo of the news network Rappler, published the article entitled "Exclusive: Napoles parties with Anti-graft Court Justice." The article showed the photograph of Senator Jinggoy Estrada (Senator Estrada, one of the main public figures now criminally charged in the pork barrel scam scandal) together with Napoles and Justice Ong. The article also noted that Justice Ong had been a member of the Sandiganbayan's Fourth Division that handled the Kevlar Helmet case where Napoles stood accused for the ghost purchase of 500 Kevlar helmets in 1998; the Fourth Division that Justice Ong chairs acquitted Napoles of the criminal charge.
Thereafter, the Senate Blue Ribbon Committee held committee hearings to investigate the pork barrel scam. At these hearings, Sula reiterated her statements about Justice Ong.
It was at this time that Justice Ong, unbidden, wrote Chief Justice Maria Lourdes P. A. Sereno (Chief Justice Sereno) a letter explaining the photo published in Rappler. The Court responded to the letter, the Rappler article, and Sula's testimony before the Senate Blue Ribbon Committee, by initiating a motu proprio investigation of Justice Ong.
The Court designated former Justice Angelina Sandoval-Gutierrez, a retired Member of this Court, as the investigating justice tasked to investigate Justice Ong's involvement with Napoles.
After hearing the testimonies of Sula, Luy and Justice Ong and considering their submitted Memoranda, Justice Sandoval-Gutierrez recommended in her Report to the Court that Justice Ong be found liable for gross misconduct, dishonesty and impropriety. She recommended that Justice Ong be dismissed from service, with forfeiture of all retirement benefits and with prejudice to re-employment in any government agency or instrumentality.
Justice Villarama affirmed Justice Sandoval-Gutierrez's Report, holding that:
Justice Villarama arrived at his conclusion by giving credit to the testimonies of Sula and Luy who both identified Justice Ong as Napoles' contact man at the Sandiganbayan. This finding is supported by the photographs showing him with Senator Estrada and Napoles at a party. Taken together, these pieces of evidence sufficiently proved that he had exposed himself to suspicion of partiality to Napoles.
Justice Villarama also noted that the financial accommodation that Napoles gave Justice Ong which Luy testified to could be the financial consideration for Justice Ong's assistance in Napoles' acquittal in the Kevlar Helmet case. The acquittal and Luy's testimony gave the public cause to doubt the honesty and fairness of Justice Ong's participation in the Kevlar Helmet case and the integrity of our justice system.
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Justice Ong committed dishonesty and violated Canon 3 of the New Code of Judicial Conduct on Integrity. In his letter to Chief Justice Sereno, he denied attending parties hosted by Napoles, and omitted to inform her that he had visited Napoles'
office twice. It was only when Luy and Sula testified before the Senate and named him as the "contact man" of Napoles in the Sandiganbayan, that Justice Ong admitted that he had visited Napoles at her office once.
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Justices Bersamin, Perez and Reyes argue on this point that the core of Luy and Sala's testimonies cannot be used to conclude that Justice Ong committed the offenses charged, as the testimonies of these witnesses are hearsay. According to them, Luy and Sula do not have personal knowledge of the alleged financial transaction between Napoles and Justice Ong. Neither should Justice Ong be held accountable for dishonesty because Justice Villarama took out of context Justice Ong's statement that he visited Napoles only once. To the three magistrates, Justice Ong should thus be only found liable for simple misconduct for mingling with litigants before his court, which offense is punishable by suspension and a fine.
With due respect to my esteemed Colleagues, I believe that they failed to consider that Justice Ong's admitted "mingling" with Napoles came while the probation case of Napoles' co-accused in the Kevlar Helmet case was still pending at the Sandiganbayan's Fourth Division. These co-accused are all her close relatives her mother Magdalena L. Francisco, her brother, Reynaldo L. Franscico and her sister-in-law Ana Marie Dulguime. My Colleagues apparently failed to consider that these co-accused/relatives, despite their conviction, never went to jail; when matters had sufficiently quieted down, Justice Ong granted them probation and even penned the ruling on reconsideration.
II. The nature of disciplinary proceedings of judges should allow us to admit hearsay evidence in appropriate cases
In evaluating the pieces of evidence relating to the charge of bribery against Justice Ong, Justice Reyes posits that a standard of evidence, higher than substantial evidence, should be used to arrive at the conclusion that Justice Ong had indeed been bribed by Napoles. Several Colleagues in the Court additionally argue that hearsay evidence against Justice Ong should not be admitted nor given probative value, and that, in any case, the remaining pieces of evidence are insufficient to prove the bribery charge.
Disciplinary proceedings against members of the bench have been characterized as administrative proceedings,[2] as the end result of these proceedings involves the determination of whether the respondent judge committed an administrative offense that carries a disciplinary penalty. The penalties range from the lightest penalty of admonition with warning, to the ultimate penalty of dismissal from the service.[3]
I submit that the characterization of disciplinary proceedings against members and officials of the judiciary as a mere administrative proceeding whose aim is the imposition of penalties, is a very simplistic view of what disciplinary proceedings are. Properly and critically viewed, they are closer to the sui generis nature of disbarment proceedings against lawyers, where the main objective of inquiry is not the infliction of punishment, but the investigation of whether the respondent lawyer continues to possess the qualities required of members of the legal profession.[4]
Lawyers assume a unique role in our society because they are officers of the court who directly participate in the administration of justice; judges' and justices' roles are no less and in fact are higher than those of lawyers as they directly act as the main principals in the administration of justice. Judges and justices directly interpret the law and determine how the scales of justice shall swing through the adjudicatory duties solely reserved for them by the Constitution.
Under these roles, the all-important question to be answered is whether judges and justices are worthy of donning the judicial robes and of discharging the adjudicatory duties of a member of the bench. When they err morally and legally in discharging their duties, they become pejoratively known as "hoodlums in robes" and thereby bring disrepute, not only to themselves, but to the institution they represent.
That disbarment of lawyers should be the take-off point in characterizing and calibrating the role of judges and justices cannot be avoided when it is considered that:
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The exercise of the legal professions and the higher calling of acting as a magistrate are both considered a privilege;
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Both professions are under the regulation and supervision of the Supreme Court;
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Both professions have crucial roles in the administration of justice the lawyer as an officer of the court, while the judge is the embodiment of the court that directly acts in dispensing justice;
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Both proceedings involve investigating officers appointed by the Supreme Court to inquire on the accusations against the respondent lawyer or judge, to be initiated motu proprio or upon the filing of a complaint;
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The ultimate penalty in both disciplinary proceedings involves divesting the respondent lawyer or judge of the privilege to practice law or adjudicate as a member of the judiciary, respectively.
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Our focus in disciplinary proceedings for members of the judiciary must necessarily and unavoidably be the determination of whether the respondent judge is still fit for the judicial office, with the preservation of the public interest in an independent, incorruptible judiciary as the ultimate objective.
In this consideration, the Court calls upon the member of the bench charged with misfeasance or malfeasance, to account for accusations against him or her, with the end in view of keeping the proper and honest administration of justice untainted and immaculate in the public's view, by excluding from the judiciary those who, by their misconduct, have proven themselves unworthy to be entrusted with the duties and responsibilities of a judge.
Based on these objectives, the tighter and stricter procedural rules applicable to criminal proceedings, particularly the requirement for a quantum of evidence higher than substantial evidence, cannot and should not be used in disciplinary proceedings involving judges. By their higher evidentiary requirement, proof of wrongdoing becomes more difficult to achieve, ultimately defeating the objectives of disciplinary proceedings.
As the Court very well knows, our ruling in disciplinary proceedings will not result in the criminal conviction and the incarceration of the respondent judge or justice; our judgment is confined to the finding and declaration of the respondent Justice's unworthiness to be a member of the judiciary.[5] If imprisonment and criminal penalties will result at all from the judge's or justice's illegal acts, they will not arise from the disciplinary proceedings; they will arise from separate criminal proceedings that require a whole new and separate process of charges, trial and conviction upon proof beyond reasonable doubt.
Viewed from the perspectives of proportionality, higher evidentiary standards are properly required as stakes become higher in the spectrum of individual rights and liberties; proof beyond reasonable doubt is required in criminal proceedings as the life, liberty and property of the accused are at stake.
Conversely, as the stakes become lower (as when only the privilege to practice law or to act as judge or justice is involved) it is but proper that evidentiary standards should likewise be lower. To lose this proportion is to lay down a policy vastly in favor of the individual, but at the expense of the societal value of a judiciary whose integrity, fairness and independence must be at their highest.
In my view, these distinctions ought to be ever present in the Court's mind in order not to defeat the purpose for which disciplinary proceedings are instituted; forgetting them and setting impossibly high and impractical standards amount to giving up the first line of defense in preserving and maintaining the judiciary's independence and integrity.
In the context of the present case, I cannot but emphasize that the gauge for determining whether bribery (or gross misconduct based on bribery) had occurred should be confined to substantial evidence and not to any higher level of evidence. The bribery accusation should be adjudged in the same manner that other accusations of gross misconduct, dishonesty and impropriety should be weighed through substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[6]
B. The rules on hearsay should be relaxed in disciplinary proceedings against members of the judiciary
I likewise cannot accept the strict application of the hearsay rules in the present case as some of my Colleagues advocate. Given the nature of disciplinary proceedings and the indisputable circumstances present in bribery transactions, the demand for evidence executed by one who has strict personal knowledge of the illegal transaction is to ask for a near impossibility in many cases. It is for this reason perhaps that disciplinary findings of bribery or gross misconduct based on bribery come few and far between.
Indeed, as some of my Colleagues in the Court have pointed out, a bribery charge is easy to concoct. However, it should likewise not be lost to us that a bribery charge, by its very nature, is also very difficult to prove even in an administrative proceeding, more so under the view of some of our Colleagues that a higher burden of proof should be required for a finding that bribery or acts indicating bribery indeed happened.
Bribery at the consummated stage, by its nature, requires a bribe-giver and a bribe-taker where both participants are parties to the crime. The public official who accepts money or other valuable consideration commits bribery, among other things,[7] while the person who offers and gives the bribe is guilty of corruption of a public official.[8]
Necessarily, the persons who have personal knowledge of the transaction would, more often than not, be limited to the offenders themselves who both risk prosecution for their misdeeds. Demanding as a matter of law that witnesses speak from their strict personal knowledge of the actual details of a bribery, would, under these circumstances, practically amount to the requirement that one of the participants turn on the other. Obviously, this requirement would make it extremely difficult to successfully prosecute the crime of bribery. Under these terms, bribery becomes a high percentage crime for the chances of success it offers.
Consider, too, that bribery cases become even more difficult to prove and establish when one of its participants has extensive knowledge of how bribery is committed and proven in court. Bribery is a crime that lawyers study from their first year in law school; its elements as well as the degree of proof required to convict are all drilled into lawyers' minds from the first course in Criminal Law and later in Remedial Law. This knowledge is honed as the lawyer takes the bar examination and as he or she goes into practice.
The specialized knowledge rises to the level of expertise when the lawyer enters the judiciary where criminal cases bribery among them are the daily fare of the cases he or she handles. This is particularly true for the Sandiganbayan, our anti-graft court, whose expertise and specialty are crimes committed by public officers in the course of their duties, bribery among them.
I say all these with no intent to cast any pejorative aspersions on the members of the Sandiganbayan. I say these merely as a matter of fact - we have before us a respondent who had been schooled and trained on the elements of bribery, and necessarily, for those inclined to commit this crime, on the ways and means to avoid even the mere suspicion of bribery. (Note, for example, Luy's testimony that Justice Ong did not want checks paid out in his name; he wanted these paid "to cash." Note, too, the claim that he had merely been engaged in an investment transaction, albeit at very high interest rates. Without more and standing alone and by themselves, these ready excuses may possibly pass muster, but not when the other circumstances, discussed below, are considered.)
Given the nature of disciplinary proceedings for judges, as well as the nature of bribery transactions, I urge my Colleagues in the Court to reconsider and re-examine the need for applying the rules on hearsay evidence in disciplinary proceedings where a bribery allegation is involved.
In special situations such as this case, where the illegal transaction is cloaked in secrecy and the dramatis personae include an expert on the intricacies of bribery (particularly on how a charge is prosecuted and evaded), do we not owe the institution we serve and the Filipino people who rely on us for a fair and speedy system of justice, the duty to exhaust all fair and reasonable means necessary to determine if indeed there are corrupt officials within our ranks?
I submit that we cannot choose to ignore the special circumstances before us particularly the confluence of facts before us that can be likened to a smoking gun staring us in the face simply because an unsound evidentiary technicality tells us to do so. The proper approach, in my view, in order to be sensitive to all the interests involved in an administration of justice situation, is as I expressed in my Concurring Opinion in AM No. 13 11 09 SC (Re: Interview with Lorna Kapunan on Corruption in the Judiciary):
I believe and propose to the Court that it desist from declaring the matter in caption closed and terminated simply because the statements Atty. Lorna Kapunan turned out to be hearsay. Instead, the Court should proactively react to the smoke that Atty. Kapunan has raised; a fire must exist somewhere behind her statements. Even smoking embers, if left unattended to, may turn into a raging conflagration. [9]
1) The purpose of hearsay evidence and its decline in administrative proceedings in other jurisdictions.
Hearsay evidence, or evidence presented by a witness who has no personal knowledge of the fact being attested to as a rule is inadmissible as evidence[10] and, even if admitted, offers no probative value.[11]
The exclusion of hearsay evidence has been traditionally justified by the perceived unreliability of out-of-court statements. Traditionally, hearsay evidence poses four risks of unreliability: a narration risk (i.e., the risk that the declarant did not mean what he or she seemed to say); a sincerity risk (the risk that the declarant intentionally fabricated); a memory risk (the risk that the declarant misrecalled what happened); and a perception risk (the risk that the declarant misperceived things to begin with).[12]
While the recognition of these risks admittedly has empirical basis, I believe it equally undeniable that we encounter the same risks whenever we receive testimony from a person who has personal knowledge of the fact or the event sought to be proved.
Indeed, both narrations one made by a person outside of court (i.e., by a declarant) and another made by a person testifying before the court (i.e., by a witness) may be unreliable. The latter, however, is admitted as evidence before the court because the trial process subjects it to three safeguards that in the end, makes the information the witness recounted more credible: first, the oath the witness takes to tell the truth, second, the jury's ability to watch the witness's demeanor, and third, the opportunity for cross-examination.[13]
Consider, however, that we admit other sources of evidence that may be unreliable and misleading even when subjected to the three safeguards of the trial process, such as the testimony of cooperating co-defendants. In this situation, we admit the testimony but evaluate its credibility and probative value vis a vis other pieces of evidence and the totality of the circumstances that the evidence points us to.
Legal history tells us that the exclusion of hearsay evidence first emerged as a rule after the introduction of the trial by jury system. Notable scholars observed that judges began excluding hearsay evidence because untrained and inexperienced jurors tended to overvalue such evidence, and failed to fully appreciate the potential sources of weakness in testimonial evidence untested by cross-examination.[14]
Aware of this hearsay rule rationale and its history, administrative agencies in the United States do not exclude hearsay evidence in their quasi-judicial proceedings.[15] They have recognized that no reason exists to exclude hearsay evidence when hearing officers are equipped with training and experience to gauge the reliability, value and relevance of the evidence presented before them. (Interestingly in many cases, the admission of hearsay evidence is made even if the administrative proceedings do not necessarily require cross-examination of witnesses.) As in the U.S., and for the same reasons, England likewise eventually allowed the admission of hearsay evidence in civil actions,[16] after it slowly departed from civil juries beginning in 1854.[17]
In the Philippines, we never had the jury system so that the actual and practical reason for the exclusion of hearsay testimony was, for the most part, lost to us. Our heads, however, need not forever be buried in the sands of inherited rules as our system of justice has come of age and has gathered enough experience for a re-examination of the rules that work or do not work for us.
To be sure, I do not recommend an outright abandonment of our rule on hearsay, but I submit that it is high time that we re-examine its strict application in administrative proceedings, particularly in disciplinary proceedings of judges and justices where bribery charges are involved.
Three reasons compel me to make this proposal:
First, disciplinary proceedings of judges, as earlier discussed, involve an administrative proceeding before an investigating judge or justice who determines, after an investigation, whether the accusations made against the respondent judge are true, and thereafter recommends the appropriate remedy or penalty.
In this light, due respect should be given the investigating judge or justice's evaluations of the credibility of the witnesses, and the reliability of the pieces of information that they attest to. Unlike lay jurors, the investigating judge or justice has had years of experience in hearing and evaluating the testimony of witnesses and their demeanor in delivering their testimonies. The risk of overvaluing the import of hearsay evidence is thus minimized by the training and expertise of our investigating judges and justices.
Second, the strict application of the hearsay rule, in effect, has shielded erring judges and justices from facing the consequences of their corrupt acts. As I earlier noted, the nature of a bribery case necessarily involves secrecy between the corruptor and the corruptee; thus, bribery rarely, if at all, surfaces when the transaction goes as planned.
Would we have to wait for betrayal, or for ill-relations between the two parties, so that we can find a witness with personal knowledge of the bribery transaction?
Should this Court simply suffer in silence while practitioners glibly claim that the judiciary is corrupt and at the same time hide behind the hearsay rule when they are held to account for their statements?
Third, the unnecessarily strict application of hearsay in administrative proceedings of judges has crippled this Court's capability to discipline its ranks. An examination of bribery cases involving judges show our extreme wariness in declaring that a judge had in fact been bribed, often using the hearsay rule to conclude that insufficiency of evidence prevents us from finding the judge liable for bribery. We would, however, still penalize these judges and dismiss them from office because of acts constituting gross misconduct.
I cannot help but think that we so acted because, at the back of our minds, we might have believed that the respondent judge had indeed been guilty of bribery, but our over-attachment to the hearsay rule compelled us to shy away from this reason to support our conclusion. Hence, we try to find other ways to penalize the erring judge or justice.[18]
While this indirect approach may ultimately arrive at the desired goal of penalizing erring judges and removing the corrupt from our roster, we should realize that this approach surrenders the strong signal that a finding of guilt for bribery makes.
It must not be lost on us that we send out a message to the public, to the members of the judiciary, and to the members of the bar, every time we decide a case involving the discipline of judges: we broadcast, by our actions, that we do not tolerate the acts for which we found the erring judge guilty. This message is lost when we penalize judges and justices for gross misconduct other than bribery, when bribery was the real root cause for the disciplinary action.
I believe that the time has come for this Court to start calling a spade a spade, and make the conclusion that bribery had taken place if and when the circumstances sufficiently prove its occurrence. In making this conclusion, we should not be unduly hindered by technical rules of evidence, including hearsay, as we have the resources and experience to interpret and evaluate the evidence before us and the information it conveys.
We must not likewise get lost as we wander in our search for the proper degree of supporting evidence in administrative proceedings. This quantum of evidence should be substantial evidence because this standard provides the necessary balance and flexibility in determining the truth behind the accusations against a respondent judge, without sacrificing the necessary fairness that due process accords him and without sacrificing what is due to the institution we serve and the Filipino people.
2) The probative value of hearsay evidence in substantial evidence
The admission of hearsay evidence does not necessarily translate into belief in the information it provides, hook, line and sinker. To satisfy the substantial evidence requirement for administrative cases, hearsay evidence should necessarily be supplemented, and corroborated by other evidence that are not hearsay.
We are not completely without experience in admitting and giving due probative value to hearsay testimony. Note, in this regard, our experience in administrative proceedings on the writ of amparo, as well as the evaluation of hearsay evidence we do in child abuse cases.
In both, we give due regard to information otherwise inadmissible because of the hearsay rule, without giving up the fairness and rule of reason required by the due process clause. Note too, that in both instances, a compelling need exists to relax the exclusionary rule of hearsay evidence[19] a necessity that is also present in disciplinary proceedings against judges.
In giving due credence to hearsay evidence, we said in the case of Razon, et. al. v. Tagitis:[20]
The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test.[21] (Emphasis supplied)
If this approach were to be applied to the disciplinary proceedings of judges, I submit that all the evidence relating to or tending to support the underlying act of bribery regardless of their hearsay nature - can and should be examined. If all the acts alleged are substantially proven to have been committed, and they collectively point to the commission of bribery although not to the level of proof beyond reasonable doubt, then the Court should be well within its rights to find the respondent liable for acts amounting to gross misconduct based on bribery.
In assessing hearsay evidence, I submit that we consider the following factors:
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The credibility of the witness, and possible motives or relationship with the interested parties that could taint the reliability of his testimony;
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The availability of the declarant to testify in person before the investigating judge or justice as well as his or her general character;
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The timing of the statement and the relationship between the declarant and the witness;
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Whether the information conveyed by the hearsay evidence had been substantially corroborated in its material points; and
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The circumstances surrounding the statement, particularly those pointing to the declarant's misrepresentation about the respondent's involvement.
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III. The totality of evidence shows that Justice Ong committed bribery
Based on the above factors, I am convinced and hereby ask the Court to join me in the conclusion that the hearsay evidence provided by Luy specifically, that Justice Ong was Napoles's contactman in the Sandiganbayan, and that the latter paid him a bribe should be admitted and given its proper weight when considered alongside other pieces of evidence.
First, the investigating justice found Luy and Sula to be credible and reliable witnesses whose testimonies even withstood the intense public scrutiny of Senate committee hearings. No evidence has ever been shown that they fabricated their statements about Justice Ong, nor that they harbored ulterior or illegal motives in adducing evidence against Justice Ong.
Second, Napoles, the declarant of the damning statements about Ong, could not reasonably be made available to testify against Justice Ong, as she would be testifying against her own interest. As I earlier explained, testifying against Justice Ong would amount to the admission by Napoles that she had committed the crime of corruption of a public officer, without any possibility of evading prison sentence by becoming a state witness.
Third, Napoles's statements regarding Justice Ong's assistance in the Kevlar Helmet case, her payment to Justice Ong, as well as her instructions to give checks to Justice Ong, were all made in the course of Luy's performance as her employee; they were made in confidence and in the course of instructing Luy on how to better undertake the tasks she had asked him to perform.
In particular, Napoles's statement that he paid Justice Ong a certain amount was made in reference to a ledger she kept of her expenses on the Kevlar Helmet case, information that she told Luy in the course of the latter's employment.
Fourth, the information derived from the hearsay evidence that Justice Ong aided Napoles in the Kevlar Helmet case and that Napoles paid him for this assistance constitutes a reasonable explanation for Justice Ong's visits to Napoles's office during which he was given a financial accommodation by Napoles; Justice Ong's picture with Napoles during a social function; and the highly questionable grant of probation of Napoles' relatives by Justice Ong pieces of evidence that are not based on hearsay.
Further, these pieces of information are corroborated by the testimony of another Napoles employee, Sula, who received information from Napoles in the course of their employer-employee relationship. In her testimony, Sula categorically attested that Napoles identified Justice Ong as her "contactman" in the Sandiganbayan several times; Napoles did this before Sula and before other Napoles employees.
Fifth, Napoles had no reason to lie or misrepresent that Justice Ong assisted her in the Kevlar Helmet case at the time she made the disclosure to Luy. At that time, Napoles and Luy's personal and working relationships were close, as they did not only stand as employer and employee to one another; they were members of the same family as they were second cousins. Napoles also disclosed the information to Luy in the course of the latter's performance of his duties as her employee. There could possibly be no benefit to Napoles in fabricating the fact of Justice Ong's assistance in the Kevlar Helmet case where she had been acquitted.
Admitting Luy's hearsay statement regarding Justice Ong's assistance to Napoles in the Kevlar Helmet case and giving it its proper weight would when considered with the rest of the evidence untainted with issues of admissibility lead to the reasonable conclusion that Justice Ong had committed gross misconduct through acts amounting to bribery.
As I earlier emphasized, Justice Ong's assistance to Napoles, as well as his receipt of money from her, reasonably explain Justice Ong's action in the grant of probation to Napoles's relatives, the ledger of "Sandiganbayan expenses" that Luy encountered in the course of his employment, as well as Justice Ong's subsequent visits to Napoles's office where he was given an advantageous financial accommodation. It additionally explains why Napoles's employees believed that Justice Ong indeed was her contact man at the Sandiganbayan.
Taken together, these pieces of evidence provide a cohesive narrative revealing that Napoles gave Justice Ong money in exchange for his assistance in the Kevlar Helmet case, a case that the Fourth Division of the Sandiganbayan (whose Chairman is Justice Ong) decided.
The act which the public officer committed in exchange for the gift he received need not necessarily be a crime it may consist of committing an unjust act, or refraining from doing something that is his official duty to do, so long as it is connected with the performance of his official duties. Assisting a litigant towards a successful avoidance of a criminal sentence or imprisonment involves such an unjust act.
Worthy of note too, that specifying the act which the repondent judge committed to doing in exchange for the gift he accepted is immaterial for purposes of determining whether he committed gross misconduct arising from acts amounting to bribery.
Bribery, as defined in the Revised Penal Code, has two forms: first, direct bribery, which may be committed by accepting a gift in exchange for the public official's (1) performance of a crime, (2) performance of an unjust act and / or (3) refraining from performing his duty.[22] These acts must be performed in the course of the public official's duties in government.
The second form involves indirect bribery which involves accepting gifts given by virtue of the public official's position in government, often with the view of exchanging future favors.[23] Acts which are neither illegal nor unjust, but which are performed in the course of the public official's duties and in exchange of the gift or favor given to the public official, falls under indirect bribery.[24]
In these lights, the critical facts necessary to prove bribery, for purposes of determining gross misconduct, are (1) the respondent judge's act of the receiving a gift or favor, (2) his knowledge that this gift was given by virtue of his office, and (3) the connection between the bribe-giver's interest with the bribe-receiver's office.
In other words, what is crucial in gross misconduct where bribery is the underlying act is the acceptance of a gift or favor, knowing that the gift or favor is given because of one's position in the judiciary i.e., that it was given to persuade the respondent judge or justice to perform an act for the giver. This act may be criminal, unjust, or may even be in line with the respondent judge or justice's duties.
Notably, the New Code of Judicial Conduct asks members of the judiciary not only to establish judicial independence and integrity, but to maintain the appearance of these judicial attributes. Judges and justices are given sufficient leeway and discretion in the application of the law and evaluation of the pieces of evidence before him or her, and it is crucial that their exercise of discretion is never compromised. Particularly, their actions cannot be tainted with ulterior motives that our criminal laws cover, such as payment from one of the litigants, regardless of whether such litigant's cause was in line with the law or not.
In these lights, the acceptance of a gift or valuable favor from a litigant in one's court, especially when such litigant had just been acquitted and still had relatives with pending cases in the division one presides over or is a member, already constitutes the underlying act of bribery for purposes of a gross misconduct charge. It involves indirect bribery at the very least because the gift or favor was accepted knowing full well that it was given because of one's position in the judiciary, not because of any particular private relationship that would justify modest gifts. In such case, the gift would necessary be in exchange for or would be looking up to a favorable act in favor of the giver.
Applying these principles in these lights, I cannot accept Justice Ong's attempt to hide behind the Sandiganbayan division's collegial decision-making process to exonerate himself of the charges against him. That he is just one of five (5) justices in his division is no excuse when it is considered that he speaks for or against the merits of cases pending with his Division. That Justice Ong himself might not have actually drafted the decision in the Kevlar Helmet case does not automatically free him from liability for the acts imputed to and proven against him, as the critical point is his participation in the case.
Justice Ong acted, in his official capacity as presiding justice and member of the Sandiganbayan Fourth Division, on the decision and motion for reconsideration of the Kevlar Helmet cases. He was identified, by several people who had no cause to implicate him, as Napoles's contactman in the Sandiganbayan. He even went to Napoles's office twice before signing probation orders for Napoles's relatives. During one of those visits, Luy prepared checks to be given to him as an accommodation given to him by Napoles. At that time, Napoles had just been acquitted before Justice Ong's Division, while the cases of Napoles' relatives still stood to be acted upon by the Division on the probation aspects. These acts, to my mind, more than reasonably establish his gross misconduct based on the underlying acts of bribery (indirect bribery, at the very least).
IV. Assuming arguendo that the hearsay evidence against Justice Ong could not be admitted as evidence, the totality of admissible evidence shows that Justice Ong committed gross misconduct by assisting, claiming to have assisted, or fostering the belief that he assisted Napoles in the Kevlar case.
A. Assessment of Luy and Sula's testimonies
Even with the use of our traditional approach of excluding hearsay evidence in administrative proceedings, I submit that the presented evidence that are not hearsay sufficiently prove that Justice Ong committed acts amounting to gross misconduct. His acts after the promulgation of the Kevlar Helmet decision show that he had assisted, claimed to have assisted, or at the very least fostered, the belief that he assisted Napoles in the Kevlar Helmet case.
A closer examination of Luy and Sula's testimonies show that they are not entirely without any probative value. A statement made by a witness may, at the same time, be both hearsay and non-hearsay, depending on what it intends to prove.
If the testimony is used to prove the veracity of a statement that the witness had no personal knowledge of, then the statement is undoubtedly hearsay with respect to the subject of the statement. But if the testimony is used to prove matters other than the veracity of the statement itself[25] and of which the witness has actual knowledge, then the statement is admissible and may be given probative value. This is the independently relevant type of evidence.
In these lights, evidence that may be hearsay in proving the fact directly in issue (bribery), may be used to prove the surrounding facts, related to the fact directly in issue, that a witness has personal knowledge of, such as the utterance of another person in front of witnesses, albeit the veracity of the uttered statement itself cannot be considered to be directly established.[26]
Further, it may also be used to show the other person's state of mind, physical and mental condition, knowledge, belief, intention, and other emotions.[27] The latter, notably, coincides with Rule 130, Section 48 of the Rules of Court, that allows a witness to present his opinion on the emotion, behavior, condition, or appearance of a person.
Admittedly, the purpose for which a piece of evidence is offered must be manifested to the court at the time the evidence is offered and presented.[28] This aspect, however, is where the leniency of administrative cases on the technical rules of evidence comes in. Thus, although no distinction had been made as to the purpose of the testimonies, probative value may be given to and separated from their hearsay aspects, particularly to the extent that a statement is independently relevant to the issue at hand.
Applied to the present case, we can - without refusing to apply the hearsay rule give credence to Luy's statement insofar as it proves that (1) Napoles plainly stated that she had been talking to Justice Ong while the Kevlar Helmet case was pending in the Sandiganbayan and that she gave the latter money to assist her, (2) that her demeanor at the time she uttered this statement was calm and confident, and (3) that during the conversation when Napoles uttered these statements, she appeared confident that she would be acquitted in the Kevlar Helmet case.
In other words, while we do not use Luy and Sula's statements to establish that Napoles had been telling the truth regarding Justice Ong's involvement in acquitting her in the Kevlar Helmet case, we still can accept that she uttered these statements to Luy, a person closely related to her and whose work involved confidential matters entrusted only to a trusted associate or employee.
To reiterate, Luy was not merely an employee of Napoles; he is also her second cousin, and has assisted her in her operations (now being questioned for its linkages in the illegal use of the Priority Development Assistance Fund) for a considerable length of time. We can also accept Luy's impressions of Napoles' state of mind and emotions at the time she uttered these statements i.e., a person confident that she would be acquitted. Significantly, she was in fact acquitted. From the time of this acquittal, the proven acts of meetings, socials and financial accommodation followed.
With respect to Luy's testimony on the financial accommodation that Napoles gave Justice Ong, we can derive from his statements the following non-hearsay aspects:
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(1)
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Justice Ong visited Napoles' office twice;
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(2)
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During one of those visits, Napoles received a check worth Php 25.5 million;
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(3)
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That in exchange for the Php25.5 million check, Luy was asked to prepare 11 checks to be issued by Napoles with Justice Ong as the payee;
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(4)
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That these checks contain an aggregate amount of Php25.5 million plus 13% interest; and
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(5)
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That before Luy placed Justice Ong's name in the checks, Napoles went to the room where Justice Ong had been staying, and thereafter instructed Luy to make the checks payable to cash.
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Luy's statements regarding these events are not hearsay, as he was involved in preparing these checks. His testimony regarding Justice Ong's presence in Napoles' office at the time he was preparing these checks also cannot also be considered as hearsay. That these checks, however, had been issued to facilitate Justice Ong's participation in the AFPSLAI (that then gave 13% interest to its depositors) cannot be taken as evidence because Luy had not been personally privy to the transaction facilitated by the checks he prepared.
With respect to Sula's testimony, we can give it credit to the extent that she heard Napoles say that Justice Ong would help her in the Kevlar Helmet case, not just in front of Sula, but in front as well of other Napoles employees.
Further, we can also accept Sula's testimony that Justice Ong had visited Napoles' office twice in 2012. We cannot, however, give credit to Sula's statements regarding Justice Ong's possible involvement in helping Napoles with the cases filed against her in the pork barrel scam, as these are speculative and unproven at this point and are not covered by our present case.
B. The facts established by Luy and Sula's testimonies, when considered with the totality of the pieces of evidence, sufficiently establish that Justice Ong assisted or claimed to have assisted Napoles in the Kevlar Helmet case, or at the very least allowed Napoles to believe in such assistance.
After excluding the aspects of Luy and Sula's testimonies that are hearsay, I believe that the following facts can be considered sufficiently established:
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(1)
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That Luy and Sula both heard Napoles claim that Justice Ong was assisting her in the Kevlar Helmet case;
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(2)
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That Sula witnessed Napoles make the same claim before the latter's other employees;
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(3)
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That Napoles's demeanor in making this claim was of someone who knew that she would be acquitted prior to the release of decision in the Kevlar Helmet case;
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(4)
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That indeed Napoles was acquitted in the Kevlar Helmet case;
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(5)
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That Justice Ong visited Napoles's office twice in 2012;
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(6)
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That during one of those visits, Luy assisted Napoles in preparing 11 checks for Justice Ong, in exchange for the Php25.5 million check that Napoles allegedly received during Justice Ong's visit.
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These factual conclusions from Luy's and Sula's testimonies, when taken together with other pieces of evidence and circumstances surrounding the case, sufficiently establish, by substantial evidence, that Justice Ong assisted, claimed to have assisted, or fostered the belief that he assisted Napoles in the Kevlar Helmet case. They also establish that Justice Ong afterwards received a favor from Napoles, as he exchanged his Php25.5 million check with 11 checks totaling to Php25.5 million with 13% interest.
Whether Justice Ong's check for Php25.5 million was funded, or had been encashed by Napoles, unfortunately, are unanswered questions from the evidence of the present case. If that check had not been funded, then Napoles effectively gave Justice Ong Php25.5 million, plus 13% of this sum, under the guise of the transaction they entered. On the other hand, if that check had indeed been funded, then a very interesting document to see would be Justice Ong's Statement of Assets and Liabilities, his SALN.
What, if I may ask, was worth this much to Napoles at that time?
The totality of the pieces of evidence presented before the Court yield the following factual conclusions:
The two witnesses, both of whom were found credible by the investigating justice, testified that Napoles had been confident of her acquittal in the Kevlar Helmet case through Justice Ong's assistance. This confidence, according to Luy, was exhibited by Napoles even prior to the Sandiganbayan's decision on the Kevlar Helmet case.
Napoles had indeed been acquitted by the Fourth Division that Justice Ong then chaired (and still chairs). Meanwhile, her relatives, who had been her co-accused, were found guilty of falsification of public documents but never spent a minute in jail due to Justice Ong's direct action on this aspect of the Kevlar Helmet case.
We are aware though that the probation order came in the early part of 2013; i.e., after Justice Ong's established interactions with Napoles in 2012. Napoles and Justice Ong were photographed together at a social event in 2012. During the same year, Justice Ong visited Napoles's office twice.
Further, during one of those visits, Napoles allegedly received a check worth Php25.5 million, and initially intended to issue 11 checks reflecting Php25.5 million plus 13% interest with Justice Ong's name as payee. These checks, however, were ultimately made payable to cash.
A discordant note in all these is Justice Ong's claim that he visited Napoles to ask for her assistance in accessing the robe of the Black Nazarene in Quiapo. This claim, however, does not need to negate the credit of Luy's testimony that he prepared the checks as both can be accomplished in one visit. (Or, there might have been other visits.) Others also attested to Justice Ong's visits to Napoles in 2012 and, significantly, other than his lame reference to the deity and unabashed play for sympathy through religion, Justice Ong never presented any evidence to disprove these points.
I find it too much of a coincidence that the Sandiganbayan justice that Napoles had been boasting about as the one who would help her in the Kevlar Helmet case, is the same justice that she socially mingled with (as shown by their photograph in a party), and the same justice that had twice personally visited her in her office in 2012. Justice Ong, too, is apparently one justice who could issue a check for Php25.5 million.
The more logical explanation for all these events, to my mind, is that Justice Ong and Napoles have been more than passing acquaintances long before 2012. Justice Ong had been visiting Napoles at her office, and had been present in at least one party where he was photographed with Napoles and no less than a senator of the realm. These suggest relationships at both the official and social levels and should be read with the direct testimony of what Napoles told her employees about her acquittal and the actual fact of acquittal.
Additionally, Ong had transacted with Napoles to the tune of Php25.5 million, a fact also directly testified to by Luy.
I submit that the confluence of these facts and events cannot but lead a reasonable mind to believe that respondent Justice Ong, at the very least, assisted or, to be exact, extended favors to Napoles and her relatives in the Kevlar Helmet case.
Assisting or claiming to have assisted a litigant in a case pending or decided by the court he sits in, or allowing the belief that he assisted in the said case violate several canons in the New Code of Judicial Conduct pertaining to integrity and impartiality. Canon 2, Section 1, requires judges to "ensure that not only is their conduct above reproach, but that it is perceived to be so in the view of a reasonable observer."
Further, Canon 3, Section 2 instructs judges to "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."
Judges must not only perform their duties with impartiality and integrity, but must ensure that these duties appear to have been executed with impartiality and integrity. Acts of assisting or making litigants believe that they have been assisted by the judge hearing his or her case not only reflects on his partiality and questionable integrity, it also reflects badly for the reputation of the judiciary, as it gives the impression that justice can be bought. That the Sandiganbayan, the country's anti-graft court, is involved in a corrupt practice should not be without significance to the Court.
Worse, as the accused in the present case is a member of the judiciary, it sends out the additional message that the one who dispenses justice can also be the same justice who sells it. Considering the grave repercussions of Justice Ong's violations, I find it logically incomprehensible to characterize his acts as less than a serious charge, and I find it morally reprehensible to impose a penalty less than dismissal with prejudice. The Court should likewise forward its record of this case to the Ombudsman for whatever action she may deem proper under the circumstances.
In sum, given the nature of the disciplinary proceedings for judges and the circumstances proven in the present case, I strongly believe that Justice Ong is no longer worthy of being identified as one of our colleagues in the judiciary. We should, at the soonest possible time, act on this already-delayed case with dispatch, dismiss him as recommended by Justice Villarama, and thereby give the strongest signal to the country of our intent to purify our ranks.
As one final point, I also invite the Court's attention to the underlying case that ultimately gave rise to the accusation against Justice Ong. It was a case involving Kevlar Helmets.
To the uninitiated, these are the helmets that the members of our military use as they fight battles for us who continue to live in the relative safety and comfort of our homes. Any irregularity in these purchases means that less than the ideal exchange had been secured by the purchasing government in the transaction. It is painful to realize that this irregularity proven by no less than the conviction of several officers of the military as well as Napoles' relatives had been at the possible expense of the members of the military who risk their lives for the rest of our society. If only for this, the Court should be aware, sensitive, and critical, in viewing the present case. Even if only to this extent, let us signal to the military how we feel for and appreciate them.
[1] RE: Interview with Lorna Kapunan on Corruption in the Judiciary, A.M. No. 13-11-09-SC, August 12, 2014.
[2] An administrative offense means every act or conduct or omission which amounts to, or constitutes, any of the grounds for disciplinary action. Salalima v. Guingona, G.R. Nos. 117589-92, May 22, 1996, 257 SCRA 55.
[3] See Section 11, Rule 140 of the Rules of Court.
[4] See, for comparison, the following discussion on disciplinary proceedings for lawyers in In the Matter of Proceedings for Disciplinary Action Against Atty. Vicente Raul Almacen, G.R. No. L-27654, February 18, 1970, 31 SCRA 562, 600 601:
Accent should be laid on the fact that disciplinary proceedings like the present are sui generis. Neither purely civil nor purely criminal, this proceeding is not and does not involve a trial of an action or a suit, but is rather an investigation by the Court into the conduct of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein It may be initiated by the Court motu proprio. Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or a prosecutor. (Citations omitted)
[5] See A.M. No. 01-8-10-SC amending Rule 140 of the Rules of Court on the Discipline of Judges of Regular and Special Courts and Justices of the Court of Appeals and the Sandiganbayan.
[6] Rule 133, Section 5 of the Rules of Court provides:
Section 5. Substantial evidence. In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.
[7] Article 210 of the Revised Penal Code provides:
Art. 210. Direct bribery. Any public officer who shall agree to perform an act constituting a crime, in connection with the performance of this official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the mediation of another, shall suffer the penalty of prision mayor in its medium and maximum periods and a fine of not less than the value of the gift and] not less than three times the value of the gift in addition to the penalty corresponding to the crime agreed upon, if the same shall have been committed.
Art. 211. Indirect bribery. The penalties of prision correccional in its medium and maximum periods, and public censure shall be imposed upon any public officer who shall accept gifts offered to him by reason of his office. (As amended by Batas Pambansa Blg. 872, June 10, 1985).
[8] Article 212 of the Revised Penal Code provides:
Art. 212. Corruption of public officials. The same penalties imposed upon the officer corrupted, except those of disqualification and suspension, shall be imposed upon any person who shall have made the offers or promises or given the gifts or presents as described in the preceding articles.
[9] Supra note 1, at 1.
[10] The rule against admitting hearsay evidence is embodied in Section 36, Rule 130 of the Rules of Court:
Section 36. Testimony generally confined to personal knowledge; hearsay excluded. A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. (30a)
[11] Mallari v. People, 487 Phil. 299, 321 (2004).
[12] David Alan Sklansky, Hearsay's Last Hurrah, 2009 Sup. Ct. Rev. 1, 7 (2009).
[13] Id.
[14] See JAMES B. THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT COMMON LAW 47 (1898) as cited in Gordon Van Kessel, Hearsay Hazards in the American Criminal Trial: An Adversary Oriented Approach, 49 Hastings L.J. 477, 489 (1998), available at http://librarysource.uchastings.edu/repository/Van%20Kessel/49HastingsLJ477.pdf.:
Traditionalists contend that, along with other common law exclusionary rules, hearsay restrictions arose with the development of the modem independent jury and that current exclusion of hearsay is justified primarily by the weaknesses of lay, as opposed to professional, factfinding with respect to evaluating second-hand evidence, which suffers from the four declarant-oriented weaknesses.
See also Lisa Dufraimont, Evidence Law and the Jury: A Reassessment, 53 McGill Law Journal 199, 223 (2008), where she notes that:
The idea that the hearsay rule was developed to prevent untrained and inexperienced lay juries from overvaluing unreliable second-hand information was popular among nineteenth century judges, and has regularly been advanced by scholars up to the present day.
In so doing, Dufraimont cites Wright v. Doe d. Tatham (1837), 7 Ad. & E. 313, 112 E.R. 488 at 512 (Exch. Ct.) Berkeley, In re (1837), 4 Camp. 401, 171 E.R. 128 at 135 to support her statement about the judges' apprehensions against the appreciation of evidence by lay jurors Dufraimont, however, is of the view that "apprehensions of jury incompetence were not uppermost in the minds of the seventeenth- and eighteenth-century judges whose concerns about hearsay hardened into an exclusionary rule. Instead, the historical origins of the hearsay rule lie in concerns about lack of oath and cross-examination, process values that are crucial to the proper functioning of the adversary system. (ibid., citations omitted)
See also: Frederick W. J. Koch, Wigmore and historical aspects of the hearsay rule, unpublished dissertation (2004), available at http://search.proquest.com/docview/305111445?fromunauthdoc=true:
In 1904 Dean Wigmore advanced a new theory regarding the raison d'être for the hearsay rule which continues to exert a significant influence on English and Canadian hearsay reform. Based on his historical work, Wigmore said that the common law judges of the late seventeenth century developed a single rule excluding hearsay evidence. According to Wigmore, these judges began to exclude hearsay because of a perception that the juries used in common law trials tended to overvalue such evidence in the absence of cross-examination. This overvaluation occurred because these untrained and inexperienced jurors failed to fully appreciate the potential sources of weakness in testimonial evidence when it was untested by cross-examination.
See also: John Henry Wigmore, The History of the Hearsay Rule, 17 Harv L Rev 437, 438 439 (1904).
[15] In Richardson v. Perales 402 U.S. 389 (1971), the United States Supreme Court allowed the use of uncorroborated hearsay evidence (i.e., written medical reports and evaluations submitted by physicians) to satisfy the substantial evidence requirement in an administrative proceedings. In so doing, it gave sufficient leeway to the administrative agencies to determine what constitutes 'substantial evidence,' and to accord due weight on the reliability and probative value of hearsay evidence. See the Use of Hearsay Evidence and the "Substantial Evidence" Standard, 1972 Duke Law Journal 174-182 (1972). Available at: http://scholarship.law.duke.edu/dlj/vol21/iss1/8.
See also John L. Gedid, Hearsay Evidence in Administrative Proceedings Pro and Con Views on the "Legal Residuum" Rule: the "Legal Residuum" Rule should be retained in Pennsylvania because of its Function to Insure Fundamental Fairness and Due Process, 75 PA Bar Assn. Quarterly 7 (2004).
[16] By statute, England made firsthand hearsay admissible in civil trials in 1968, abolished the rule entirely for civil cases in 1997, and in 2003 created a broad exception in criminal cases for firsthand hearsay from declarants unavailable to testify at trial. David Alan Sklansky, Hearsay's Last Hurrah, 2009 Sup. Ct. Rev. 1,10 (2009).
See also the discussion on the modernization of civil evidence in England, in NEIL ANDREWS, THE THREE PATHS OF JUSTICE: COURT PROCEEDINGS, ARBITRATION, AND MEDIATION IN ENGLAND (IUS GENTIUM: COMPARATIVE PERSPECTIVES ON LAW AND JUSTICE, Vol. 10) 105 106 (2011):
3.94 There has been much 'modernising' of civil evidence during the last few decades. The impetus for these reforms has been the civil jury's virtual disappearance in modern English practice. And so various 'exclusionary rules', designed to protect the civil jury against 'potentially unreliable' material, have been removed or modified.
3.95 These developments are consistent with a perceived global trend towards 'free evaluation; of evidence. American Law Institute / UNIDROIT's Principles of Transantional Civil Procedure has recognised this concept. These English evidential changes will now be listed. The English 'hearsay rule' used to provide a barrier to admitting relevant evidence. This rule concerned second-hand or remoter reports of oral statements (for example, if the defendant withsed to adduce evidence, through one of his witnesses, who proposed to state that the 'claimant told me that his wife had said, "let's concoct a claim against these people""), The hearsay rule also concerned documents composed out-of-court. But there has now been a fundamental change. Since 1995, statute has allowed a party to use out-of-court oral statements, and documents, as evidence: 'In civil proceedings evidence shall not be excluded on the ground that it is hearsay', that is, 'a statement made otherwise than by a person giving oral evidence.' Instead, the court must to assess the 'weight' to be attached to the hearsay evidence. The judge is here guided by various considerations. x x x (Citations omitted)
[17] Section 1 of the Chancery Amendment Act of 1854 provides:
The Parties to any Cause may, by Consent in Writing, signed by them or their Attorneys, as the Case may be, leave the Decision of any Issue of Fact to the Court, provided that the Court, upon a Rule to shoe Cause, or a Judge on Summons, shall, in their or his Discretion, think fit to allow such Trial; or provided the Judges of the Superior Courts of Law at Westminster shall, in pursuance of the Power herein-after given to them, make any General Rule of Order dispensing with such Allowance, either in all Cases or in any particular Class or Classes of Cases to be defined in such Rule or Order; and such Issue of Fact may thereupon be tried and determined, and Damages assessed where necessary, in open Court, either in Term or Vacation, by any Judge who might otherwise have presided at the Trial thereof by jury, either with or without the Assistance of any other Judge or Judges of the same Court, or included in the same Commission at the Assizes; and the Verdict of such Judge or Judges shall be of the same Effect as the Verdict of a Jury, save that it shall not be questioned upon the Ground of being against the Weight of Evidence; and the Proceedings upon and after such Trial, as to the Power of the Court of Judge, the Evidence, and otherwise, shall be the same as in the Case of Trial by Jury.
See also Sally Lloyd-Bostock and Cheryl Thomas's discussion on the English jury in civil cases, viz:
The frequency of civil jury trials steadily declined in England and Wales from the middle of the nineteenth century, when judges were given the right to refuse trial by jury. Today, less than one percent of civil trials are jury trials. The Supreme Court Act gives a qualified right to trial by jury in only four types of civil case: libel and slander, fraud, malicious prosecution, and false imprisonment. Even in these cases, the right can be denied where the court is of the opinion thay the trial requires "prolonged examination of documents or accounts, or any scientific or local investigation which cannot be conveniently made with a jury." Sally Lloyd-Bostock and Cheryl Thomas, Decline of the "Little Parliament": Juries and Jury Reform in England and Wales, 62 Law and Contemporary Problems 9, 13 (1999).
[18] See for instance, Gacad v. Judge Clapis (A.M. No. RTJ-10-2257, July 17, 2012, 676 SCRA 534), Verginesa-Suarez v. Judge Dilag (A.M. No. RTJ-06-2014, March 04, 2009, 580 SCRA 491), and Kaw v. Judge Osorio (469 Phil. 896 [2004]).
[19] The case of Razon, et. al. v. Tagitis (G.R. No. 182498, December 3, 2009, 606 SCRA 598) involves the enforced disappearance of Engineer Morced N. Tagitis, a consultant for the World Bank and the Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme. In Tagitis, we noted (citing a landmark case by the Inter-American Court of Human Rights) that the deliberate use of the State's power to destroy pertinent evidence is inherent to the practice of enforced disappearance. Thus, there is a strong need for flexibility under the unique circumstances that enforced disappearance cases pose to the courts; to have an effective remedy, the standard of evidence must be responsive to the evidentiary difficulties faced.
Accordingly, we allowed the admission of hearsay testimony, over the objections of the public officers concerned, and evaluated it along with its consistency with the totality of all the pieces of evidence adduced.
[20] Id.
[21] Id. at 692.
[22] Article 210, Revised Penal Code.
[23] Article 211, Revised Penal Code.
[24] People v. Pamplona, CA, 51 OG 4116, as cited in Luis B. Reyes, THE REVISED PENAL CODE BOOK TWO, Seventeenth Ed. 393 394 (2008).
[25] Moreover, the ban on hearsay evidence does not cover independently relevant statements. These are statements which are relevant independently of whether they are true or not. They belong to two (2) classes: (1) those statements which are the very facts in issue, and (2) those statements which are circumstantial evidence of the facts in issue. The second class includes the following:
a. Statement of a person showing his state of mind, that is, his mental condition, knowledge, belief, intention, ill will and other emotions;
b. Statements of a person which show his physical condition, as illness and the like;
c. Statements of a person from which an inference may be made as to the state of mind of another, that is, the knowledge, belief, motive, good or bad faith, etc. of the latter;
d. Statements which may identify the date, place and person in question; and
e. Statements showing the lack of credibility of a witness. Estrada v. Desierto, 408 Phil 194, 227 (2001).
[26] Miro v. Mendoza, G.R. Nos. 172532 172544-45, November 20, 2013.
[27] See US v. Enriquez, 1 Phil. 241, 243 244 (1902).
[28] In particular, Sections 34 and 35 of Rule 132 of the Rules of Court provide:
Section 34. Offer of evidence. The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. (35)
Section 35. When to make offer. As regards the testimony of a witness, the offer must be made at the time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a party's testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing. (n)
BERSAMIN, J.:
The Majority holds Justice Gregory S. Ong of the Sandiganbayan guilty of gross misconduct, dishonesty, and impropriety in violation of the New Code of Judicial Conduct for the Judiciary.
I believe, however, that Justice Ong is administratively liable only for simple misconduct, because that was the offense competently and properly established against him, and the offense for which he is to be justly punished. I join the thorough consideration of the record and recommendation for the suspension of Justice Ong for three months by Justice Jose Portugal Perez and Justice Bienvenido L. Reyes. I humbly opine that it is unjust to punish Justice Ong with the extreme penalty of dismissal from the service if the serious charges of gross misconduct, dishonesty, and impropriety were not clearly and convincingly proven by competent evidence.
In imposing the ultimate penalty of dismissal, the per curiam decision of the Majority contained the following observations:
1. Justice Ong's association with Janet Lim Napoles during the pendency of, and after the promulgation of the decision in the Kevlar case resulting in Napoles's acquittal constituted gross misconduct notwithstanding the absence of direct evidence of corruption or bribery in the rendition of the said judgment.
2. The testimonies of Benhur Luy and Marina Sula, the former employees of Napoles, were considered substantial evidence establishing Napoles's contact with Justice Ong during the pendency of the Kevlar case. The substance of their testimonies given credence by the Majority are the following:
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(a)
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Napoles revealed to them that she had a "connect" or "contact" in the Sandiganbayan who could help "fix" the Kevlar case;
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(b)
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Luy testified that Napoles told him that she gave money to Justice Ong but did not disclose the amount;
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(c)
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Napoles kept a ledger detailing her expense for the Sandiganbayan, which reached P100 Million; and
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(d)
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Napoles' information about her association with Justice Ong was confirmed when she was eventually acquitted in 2010, and when Luy and Sula saw him visit her office after the promulgation of the decision in the Kevlar case, and given the eleven checks issued
by Napoles in 2012;
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3. The evidence on record was insufficient to sustain the charge of bribery and corruption against Justice Ong inasmuch as Luy and Sula had not themselves witnessed him actually receiving money from Napoles. Considering that bribery and corruption connote a grave misconduct, the quantum of proof should be more than substantial;
4. By his act of going to Napoles's office on two occasions, Justice Ong exposed himself to the suspicion that he had been partial to Napoles;
5. Investigating Justice Angelina Sandoval-Gutierrez found the testimonies of Luy and Sula credible;
6. Justice Ong's act of voluntarily meeting with Napoles constituted impropriety, because he must at all times be beyond reproach and should avoid even the mere suggestion of partiality and impropriety;
7. According to Justice Sandoval-Gutierrez, the eleven checks supposedly issued as advance interest for Justice Ong's deposit in AFPSLAI were given to him as consideration for the favorable ruling in the Kevlar case; and
8. Justice Ong's denial and failure to disclose his attendance in Napoles's gatherings, and his visits and social calls to Napoles constituted dishonesty.
To the Majority, Justice Ong's guilt for gross misconduct was anchored on the inference from his association with Napoles having led to her acquittal in the Kevlar case. To support the inference, the Majority accorded credence to the statements of Luy and Sula to the effect that: (a) Napoles had told them on different occasions that she had a "contact" in the Sandiganbayan; (b) Napoles later on disclosed that Justice Ong was her contact in the Sandiganbayan; and (c) Napoles told Luy that she had paid money to Justice Ong (whose amounts she did not bother to disclose).
The evidence required in administrative cases is concededly only substantial;[1] that is, the requirement of substantial evidence is satisfied although the evidence is not overwhelming, for as long as there is reasonable ground to believe that the person charged is guilty of the act complained of.[2] However, the substantial evidence rule should not be invoked to sanction the use in administrative proceedings of clearly inadmissible evidence. Although strict adherence to technical rules is not required in administrative proceedings, this lenity should not be considered a license to disregard fundamental evidentiary rules.[3] The evidence presented must at least have a modicum of admissibility in order for it to have probative value. Not only must there be some evidence to support a finding or conclusion, but the evidence must be substantial. Substantial evidence is more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[4] In my opinion, administrative proceedings should not be treated differently under pain of being perceived as arbitrary in our administrative adjudications.
The statements of Luy and Sula being relied upon were based not on the declarants' personal knowledge, but on statements made to them by Napoles. I find it very odd that the Majority would accord credence to such statements by Luy and Sula if they themselves did not personally acquire knowledge of such matters. I insist that elementary evidentiary rules must be observed even in administrative proceedings.
A most basic rule is that a witness can only testify on matters that he or she knows of her personal knowledge.[5] This rule does not change even if the required standard be substantial evidence, preponderance of evidence, proof beyond reasonable doubt, or clear and convincing evidence. The observations that the statements of Luy and Sula were made amidst the "challenging and difficult setting"[6] of the Senate hearings, and that the witnesses were "candid, straightforward and categorical" during the administrative investigation[7] did not excise the defect from them. The concern of the hearsay rule is not the credibility of the witness presently testifying, but the veracity and competence of the extrajudicial source of the witness's information.
To be clear, personal knowledge is a substantive prerequisite for accepting testimonial evidence to establish the truth of a disputed fact. The Court amply explained this in Patula v. People:[8]
To elucidate why x x x hearsay evidence was unreliable and untrustworthy, and thus devoid of probative value, reference is made to Section 36 of Rule 130, Rules of Court, a rule that states that a witness can testify only to those facts that she knows of her personal knowledge; that is, which are derived from her own perception, except as otherwise provided in the Rules of Court. The personal knowledge of a witness is a substantive prerequisite for accepting testimonial evidence that establishes the truth of a disputed fact. A witness bereft of personal knowledge of the disputed fact cannot be called upon for that purpose because her testimony derives its value not from the credit accorded to her as a witness presently testifying but from the veracity and competency of the extrajudicial source of her information.
In case a witness is permitted to testify based on what she has heard another person say about the facts in dispute, the person from whom the witness derived the information on the facts in dispute is not in court and under oath to be examined and cross-examined. The weight of such testimony then depends not upon the veracity of the witness but upon the veracity of the other person giving the information to the witness without oath. The information cannot be tested because the declarant is not standing in court as a witness and cannot, therefore, be cross-examined.
It is apparent, too, that a person who relates a hearsay is not obliged to enter into any particular, to answer any question, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities; and that she entrenches herself in the simple assertion that she was told so, and leaves the burden entirely upon the dead or absent author. Thus, the rule against hearsay testimony rests mainly on the ground that there was no opportunity to cross-examine the declarant. The testimony may have been given under oath and before a court of justice, but if it is offered against a party who is afforded no opportunity to cross-examine the witness, it is hearsay just the same.
Moreover, the theory of the hearsay rule is that when a human utterance is offered as evidence of the truth of the fact asserted, the credit of the assertor becomes the basis of inference, and, therefore, the assertion can be received as evidence only when made on the witness stand, subject to the test of cross-examination. However, if an extrajudicial utterance is offered, not as an assertion to prove the matter asserted but without reference to the truth of the matter asserted, the hearsay rule does not apply. For example, in a slander case, if a prosecution witness testifies that he heard the accused say that the complainant was a thief, this testimony is admissible not to prove that the complainant was really a thief, but merely to show that the accused uttered those words. This kind of utterance is hearsay in character but is not legal hearsay. The distinction is, therefore, between (a) the fact that the statement was made, to which the hearsay rule does not apply, and (b) the truth of the facts asserted in the statement, to which the hearsay rule applies.
Section 36, Rule 130 of the Rules of Court is understandably not the only rule that explains why testimony that is hearsay should be excluded from consideration. Excluding hearsay also aims to preserve the right of the opposing party to cross-examine the original declarant claiming to have a direct knowledge of the transaction or occurrence. If hearsay is allowed, the right stands to be denied because the declarant is not in court. It is then to be stressed that the right to cross-examine the adverse party's witness, being the only means of testing the credibility of witnesses and their testimonies, is essential to the administration of justice.
To address the problem of controlling inadmissible hearsay as evidence to establish the truth in a dispute while also safeguarding a party's right to cross-examine her adversary's witness, the Rules of Court offers two solutions. The first solution is to require that all the witnesses in a judicial trial or hearing be examined only in court under oath or affirmation. Section 1, Rule 132 of the Rules of Court formalizes this solution, viz:
Section 1. Examination to be done in open court. - The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. (1a)
The second solution is to require that all witnesses be subject to the cross-examination by the adverse party. Section 6, Rule 132 of the Rules of Court ensures this solution thusly:
Section 6. Cross-examination; its purpose and extent. Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. (8a)
Although the second solution traces its existence to a Constitutional precept relevant to criminal cases, i.e., Section 14, (2), Article III, of the 1987 Constitution, which guarantees that: "In all criminal prosecutions, the accused shall xxx enjoy the right xxx to meet the witnesses face to face xxx," the rule requiring the cross-examination by the adverse party equally applies to non-criminal proceedings.
We thus stress that the rule excluding hearsay as evidence is based upon serious concerns about the trustworthiness and reliability of hearsay evidence due to its not being given under oath or solemn affirmation and due to its not being subjected to cross-examination by the opposing counsel to test the perception, memory, veracity and articulateness of the out-of-court declarant or actor upon whose reliability the worth of the out-of-court statement depends.[9]
In addition, the Majority adverted to the following statements of Luy and Sula, to wit: (a) Luy and Sula saw Justice Ong visit Napoles in her office; (b) there was a ledger listing Napoles's alleged "Sandiganbayan" expenses; and (c) Luy personally prepared the 11 checks allegedly issued by Napoles to Justice Ong as advance interest for the latter's deposit in AFPSLAI as the basis for concluding that Justice Ong's association with Napoles was more than merely casual; and that such association was instrumental in Napoles's acquittal in the Kevlar case supposedly orchestrated by Justice Ong in return for monetary consideration.
I cannot agree with the Majority.
Justice Ong admitted making visits to Napoles, but such visits apparently happened in 2012, or long after the promulgation of the decision in the Kevlar case. He maintained that he had made his visits only to thank her for accommodating his request for access to the robe of the Black Nazarene.
The claim about the ledger and checks remained uncorroborated. No ledger or checks or any other documents indicating the preparation of the ledger or the issuance of the checks were actually presented. Nor was the connection of such ledger or the checks to the fixing of the Kevlar case for monetary consideration ever established. In that light, the adverse statements by Luy and Sula remained to be mere allegations that could not be considered as evidence by any means.[10]
If the Majority concede that there was no sufficient evidence to support the charge of bribery and corruption against Justice Ong, it became unreasonable for the Majority to hold that the totality of the circumstances still showed his corrupt inclination. To let ourselves as judges reach a conclusion of corrupt inclination despite the insufficient basis to find bribery and corruption is to set at naught all our learning of rendering a judgment of guilt only upon evidence that is sufficient, credible and reliable.
Having admitted visiting Napoles after the promulgation of the decision in the Kevlar case, Justice Ong could be considered as fraternizing with a litigant, by which he surely transgressed his duty as a judge to be beyond reproach and suspicion.[11] He thereby violated Section 1 of Canon 4 (Propriety) of the New Code of Judicial Conduct.[12] Yet, such association with Napoles was still censurable. Under Rule 140 of the Rules of Court, fraternizing with lawyers or litigants is classified as a light charge penalized with a fine of not less than P1,000.00 but not exceeding P10,000.00 and/or censure, reprimand, or admonition with warning.
The dishonesty of Justice Ong for having initially denied any acquaintance with Napoles was not of the seriousness or gravity to merit the extreme penalty of dismissal. His denial neither related to his official duties, nor to his qualifications as a Justice of the Sandiganbayan. It was not akin to an act of dishonesty committed through the falsification of one's daily time records,[13] and was not similar to a judge's failure to disclose in his application for appointment to the Judiciary pending criminal cases filed against him.[14]
It is relevant to note that dishonesty is a serious charge punishable by the following: (a) dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations. Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; or (b) suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or (c) a fine of more than P20,000.00 but not exceeding P40,000.00.[15] Even so, the Court refrained in several instances from imposing these stiff administrative penalties because of the presence of mitigating circumstances, like the length of service, acknowledgment of fault, and feeling of remorse and humanitarian considerations.[16]
Nonetheless, the Court should appreciate mitigating circumstances in determining the proper penalty to be imposed upon Justice Ong. At present, he is the longest-sitting Justice in the Sandiganbayan. Moreover, as mentioned by the Majority, he has admitted that his having associated himself to a former litigant in his court was an error, and has asked forgiveness during the proceedings held by Justice Sandoval-Gutierrez.
ACCORDINGLY, I VOTE to hold respondent JUSTICE GREGORY S. ONG guilty of SIMPLE MISCONDUCT, to be punished with suspension from office for a period of three months.
[1] Section 5, Rule 133 of the Rules of Court states:
Section 5. Substantial evidence. - In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (n)
[2] Office of the Ombudsman v. Dechavez, G.R. No. 176702, November 13, 2013, 709 SCRA 375, 382-383.
[3] Miro v. Mendoza Vda. de Erederos, G.R. Nos. 172532 & 172544-45, November 20, 2013, 710 SCRA 371, 396.
[4] Lepanto Consolidated Mining Company v. Dumapis, G.R. No. 163210, August 13, 2008, 562 SCRA 103, 113-114.
[5] Section 36, Rule 130 of the Rules of Court, to wit:
Section 36. Testimony generally confined to personal knowledge; hearsay excluded. - A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. (30a)
[6] Per curiam decision, p. 26.
[7] Id.
[8] G.R. No. 164457, April 11, 2012, 669 SCRA 135.
[9] Id. at 152-155.
[10] See Real v. Sangu Philippines, Inc., G.R. No. 168757, January 19, 2011, 640 SCRA 67, 84-85.
[11] See De Guzman, Jr. v. Judge Sison, A.M. No. RTJ-01-1629, March 26, 2001, 355 SCRA 69, 90.
[12] Section 1. Judges shall avoid impropriety and the appearance of impropriety in all their activities.
[13] Concerned Employees of the Municipal Trial Court of Meycauayan, Bulacan v. Paguio-Bacani, A.M. No. P-06-2217, July 30, 2009, 594 SCRA 242, 258.
[14] Gutierrez v. Belan, A.M. No. MTJ-95-1059. August 7, 1998, 294 SCRA 1, 17.
[15] Section 11, Rule 140 of the Rules of Court.
[16] Office of the Court Administrator v. Judge Aguilar, A.M. No. RTJ-07-2087, 7 June 2011, 651 SCRA 13, 25.