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601 Phil. 470


[ A.C. No. 7732, March 30, 2009 ]




A Complaint[1] for disbarment was filed by Atty. Rodante D. Marcoleta (complainant) against respondents Commissioners Resurreccion Z. Borra (Borra) and Romeo A. Brawner (Brawner) of the Commission on Elections (Comelec) charging them with violating Canons 1 (1.01, 1.02 and 1.03) and 3 (3.01, 3.02, 3.05 and 3.06) of the Code of Judicial Conduct[2] and Canons 4, 5, 6 and 17 of the Canons of Judicial Ethics.[3] Additionally, complainant charges respondents of violating Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees.[4]

During the 2007 National and Local Elections, the warring factions of complainant and Diogenes S. Osabel (Osabel) each filed a separate list[5] of nominees for the party-list group Alagad.

With Alagad winning a seat in the House of Representatives, the two protagonists contested the right to represent the party. By Omnibus Resolution[6] of July 18, 2007, the dispute was resolved by the Comelec's First Division in favor of Osabel. Commissioner Borra wrote the ponencia while Commissioner Brawner concurred.

The dispute was elevated to the Comelec En Banc which, by Resolution[7] of November 6, 2007, reversed the First Division Resolution and reinstated the certificate of nomination of complainant's group. For failing to muster the required majority voting,[8] however, the Comelec ordered the re-hearing of the controversy. Notwithstanding the conduct of a re-hearing, the necessary majority vote could not still be obtained.[9] The Comelec's First Division's Omnibus Resolution was eventually affirmed.[10] Hence, arose the present complaint for disbarment, complainant alleging as follows:
8. x x x x respondents [Borra and Brawner] promulgated a highly questionable and irregular Omnibus Resolution [Annexes "F" and "F-1"], that was characterized by manifest partiality, evident bad faith, and gross inexcusable negligence as evidenced in the TIMING and MANNER by which the case was eventually disposed by herein respondents in their Division.

9. Respondents deliberately delayed the resolution of the case (from 5 days as mandated under Sec. 8, Rule 18 of the Comelec Rules of Procedure) to nearly 4 months after the same was deemed submitted for decision on March 20, 2007. The delay was intentional because if the case was resolved before May 14, 2007, [Osabel] will be left alone to campaign for the Party and considering that he is relatively unknown and without resources, certainly he cannot make the Party win. x x x x. Hence, in first making sure that ALAGAD wins a seat and, thereafter, resolved the case in favor of one who neither campaigned nor spent for it, both respondents subverted and/or frustrated the will of the 423,090 voters who supported ALAGAD and who have always believed that it was complainant who will represent them in the 14th Congress. This is an extortionate act to say the least!

10. Even the manner with which the case was disposed is fraught with gross deception and evident manipulation. First of all, the respondents changed the sole and common issue stipulated by the parties: from one that is central to the complete and final resolution of the controversy, into one that was beyond the Comelec's jurisdiction.

x x x x

11. Respondents were evidently in bad faith in muddling the issue (which resulted in an erroneous ruling) x x x.

x x x x

13. The assailed 20-page Omnibus Resolution never cited a single law (in violation of Sec. 14, Art. VIII of the Philippine Constitution as well as Rule 18, Sec. 2, last par. of their own Rules) in erroneously ruling that petitioner's resignation cannot be considered because it was not in written form x x x x.

14. Both respondents lied in actually delving into the root of the parties' conflict despite their avowal to the contrary and in giving "more credence to the Minutes submitted by [Osabel]" (Annex "F-13.b") despite their declaration that said "minutes partisan from the start x x x in a power struggle within the organization, cannot be upheld as faithful depiction of prevailing facts." They also lied in not relying on the Party's Constitution and By-Laws (CBL), contrary to what they declared to do, when compared to the En Banc ponencia [Annex "J"] that reversed their Omnibus Resolution x x x x.

x x x x

16. Respondent Borra's "dissenting opinion" (if it can be qualified as such) was a mere marginal note, written above his signature that reads: "In conscience and judiciousness, I vote to affirm the 1st Div. Omnibus Resolution." x x x.

17. Respondent Borra knows only too well that all cases are decided and affirmed on the basis of evidence, not on conscience. For conscience is that instantaneous perception of right or wrong that can only be summoned by the spirit being a part of the Divine Wisdom. x x x.

18. It was clearly evasive for respondent Borra to use the absurd excuse "in conscience and judiciousness" to free himself from the mandatory submission of a separate dissenting opinion x x x.

x x x x

20. Respondent Brawner's Dissenting Opinion [Ref. Annex "I"], on the other hand, only confirmed his leaning and partiality towards [Osabel] as clearly shown by his shallow disquisition, if not twisted, dissent. x x x.

21. Respondent Brawner's irresponsible claim (on page 4) that "all official records of ALAGAD's proceedings point out to Osabel's continuing as ALAGAD's President" and "the recent decision in SPA No. 04-153 dated June 12, 2007 prove the continuing stature of Osabel as ALAGAD President" is not supported by facts. x x x x. Thus, it was reckless, if not unthinkable, for Brawner to have ascribed "continuing stature" upon petitioner based on a "position" appearing in the title [Annex "O-1"] of a different and old case that was disposed only recently. This ruse is gobbledygook, plain and simple! [Padua v. Robles, 66 SCRA 488].

x x x x (Emphasis, underscoring and italics in the original)
Complainant filed a Supplemental Complaint[11] on February 12, 2008, this time charging respondent Brawner of "tamper[ing] the record of the proceedings in [SPA No. 07-020]" by falsely alleging in an Order dated February 5, 2008 that there had been a re-hearing; that both parties had agreed to simultaneously file their memoranda during the re-hearing; and that the parties filed their respective memoranda.

Respondent Brawner, in his Answer[12] dated April 2, 2008, asserted in the main that "the remedy of complainant is not to file a complaint for disbarment, but to file an appeal before [the Supreme Court] via [p]etition for [c]ertiorari," and that being members of a constitutional body enjoying presumption of regularity in the performance of their functions, he and co-respondent Borra "are supposed to be insulated from a disbarment complaint for being impeachable officers."

In his Comment,[13] respondent Borra contends that the Code of Judicial Conduct and Canons of Judicial Ethics cannot be made to apply to him and his co-respondent, they not being members of the judiciary; and that since they perform quasi-judicial functions as well as administrative duties, they are bound by the Comelec's own set of internal rules and procedure over and above a Code of Conduct that prescribes the norms and standards of behavior to be observed by the officials and employees of the Comelec, a constitutional body.

Respondent Borra further contends that the present complaint is premature as "the validity and legality of the resolutions are still subject to review;" and that the complaint is meant to "harass [him] and punish him for exercising his judgment on the case filed before him."

To respondents' Answer and Comment, complainant filed Replies,[14] alleging that respondents cannot take refuge in their being impeachable public officers to insulate them from any disbarment complaint. To complainant, "the insulation from disbarment complaint of impeachable public officers when referring particularly to the members of the [Comelec] applies only to the `majority' of its members who should all be members of the Philippine bar," citing Section 1 (1) of Article IX-C of the Constitution.[15]

Complainant goes on to charge respondent Borra of violating Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act for collecting his retirement benefits "hurriedly despite knowledge of the existence of criminal and administrative charges against him." Additionally, he charges respondents of culpable violation of the Constitution when they, together with the other members of the Comelec, adjusted their compensation scheme under Resolution No. 7685.[16]

The Court takes notice that respondent Borra retired from the Comelec on February 2, 2008 while respondent Brawner passed away on May 29, 2008.

As regards respondent Brawner then, the present case is already moot.

At the outset, the Court, guided by its pronouncements in Jarque v. Ombudsman,[17] In Re: Raul M. Gonzales[18] and Cuenco v. Fernan,[19] has laid down the rule that an impeachable officer[20] who is a member of the Bar cannot be disbarred without first being impeached. Complainant's availment of Section 1 (1) of Article IX-C of the Constitution to skirt this rule is specious.

It bears emphasis that the provision that majority of Comelec members should be lawyers pertains to the desired composition of the Comelec. While the appointing authority may follow such constitutional mandate, the appointment of a full complement of lawyers in the Comelec membership is not precluded.

At the time the present complaint was filed, respondents and three other commissioners[21] were all lawyers. As an impeachable officer who is at the same time a member of the Bar, respondent Borra must first be removed from office via the constitutional route of impeachment before he may be held to answer administratively for his supposed errant resolutions and actions.

Respondent Borra having retired from the Comelec does not, of course, necessarily call for the dismissal of the complaint. At the heart, however, of the disbarment complaint is the issuance of Omnibus Resolution of July 18, 2007 penned by respondent Borra when he was still a member of the Comelec's First Division.

The supposed failure of respondent Borra to resolve the controversy between complainant's faction and the other faction of Alagad within the prescribed period does not render the Omnibus Resolution null and void. Prescribed periods partake of a directory requirement, given the Comelec's numerous cases and logistical limitations.[22]

The Court thus finds respondent Borra's contention that the grounds-bases of the disbarment complaint, fastened on supposed errors of judgment or grave abuse of discretion in the appreciation of facts, are proper for an appeal, hence, complainant's remedy is judicial, not administrative.

As for complainant's invocation of Section 58 of Article VII of the Omnibus Election Code[23] reading:
The chairman and members of the Commission shall be subject to the canons of judicial ethics in the discharge of their functions.

x x x x (Emphasis and underscoring supplied),
the same relates to the quasi-judicial function of the Comelec, which function rests on judgment or discretion, so that while it is of judicial nature or character, it does not involve the exercise of functions of a judge.[24]

The same provision thus directs that in the exercise of the Comelec's quasi-judicial power, the chairman and members should be guided by the canons of judicial ethics. It bears emphasis that the New Code of Judicial Conduct for the Philippine Judiciary[25] applies only to courts of law, of which the Comelec is not, hence, sanctions pertaining to violations thereof are made exclusively applicable to judges and justices in the judiciary, not to quasi-judicial officers like the Comelec chairman and members, who have their own codes of conduct to steer them.

Even if the Court were to gauge the assailed actions of respondent Borra under the Code of Professional Responsibility, no specific incidents and sufficient evidence can be gathered to show that respondent did engage in dishonest, immoral or deceitful conduct in his capacity as a lawyer. It bears reiteration that the acts particularized in the complaint pertain to respondent Borra's duties as a Comelec commissioner.

As for the release of retirement benefits to respondent Borra, there is nothing irregular therewith, the same being in line with Memorandum Circular No. 10 (series of 1995) of the Office of the Ombudsman reading:
x x x a person retiring from the government service, whether optional or compulsory, needs only to present a certification from this Office whether or not he has a pending criminal or administrative case with it. In the event the certification presented states that the prospective retiree has a pending case, the responsibility of determining whether to release his retirement benefits, as well as the imposition of necessary safeguards to ensure restitution thereof in the event the retiree is found guilty, rests upon and shall be left to the sound discretion of the head of the department, office or agency concerned. (Emphasis and underscoring in the original)
Interestingly, while complainant singled out the participation of respondents Borra and Brawner in the promulgation of the questioned resolutions, he spared the other commissioners who were also signatories to the resolutions.

WHEREFORE, the complaint for disbarment against now deceased Comelec Commissioner Romeo Brawner is DISMISSED for being moot. That against Commissioner Resurreccion Borra is likewise DISMISSED for lack of merit.


Quisumbing, (Chairperson), Tinga, Velasco, Jr., and Peralta*, JJ., concur.

* Additional member per Special Order No. 587 dated March 16, 2009 in lieu of the leave of absence due to sickness of Justice Arturo D. Brion.

[1] Rollo, p. 1-5.

[2] Canon 1


Rule 1.01.--A judge should be the embodiment of competence, integrity, and independence.
Rule 1.02.--A judge should administer justice impartially and without delay.
Rule 1.03.--A judge should be vigilant against any attempt to subvert the independence of the judiciary and resist any pressure from whatever source.

x x x x

Canon 3


Rule 3.01.-- A judge shall be faithful to the law and maintain professional competence.
Rule 3.02.-- In every case, a judge shall endeavor diligently to ascertain the facts and the applicable law unswayed by partisan interests, public opinion or fear of criticism.

x x x x

Rule 3.05.- A judge shall dispose of the court's business promptly and decide cases within the required periods.
Rule 3.06.-- While a judge may, to promote justice, prevent waste of time or clear up some obscurity, property intervene in the presentation of evidence during the trial, it should always be borne in mind that undue interference may prevent the proper presentation of the cause or the ascertainment of truth.

x x x x

[3] x x x x

  1. Essential conduct
    He should be temperate, patient, attentive, impartial, and, since he is to administer the law and apply it to the facts, he should be studious of the principles of the law, diligent in endeavoring to ascertain the facts.
  2. Industry
    He should exhibit an industry and application commensurate with the duties imposed upon him.
  3. Promptness
    He should be prompt in disposing of all matters submitted to him, remembering that justice delayed is often justice denied.
x x x x
  1. Judicial opinions
    In disposing of controverted cases, judges should indicate the reasons for their action in opinions showing that they have not disregarded or overlooked serious arguments of counsel. They should show their full understanding of the case, avoid the suspicion of arbitrary conclusion, promote confidence in their intellectual integrity and contribute useful precedents to the growth of the law.
    But the volume of reported decisions is such and is ever so increasing that in writing opinions which are to be published, judges may well take this fact into consideration, and curtail them accordingly, without substantially departing from the principles stated above. It is of high importance that judges constituting a court of last resort should use effort and self-restraint to promote solidarity of conclusion and the consequent influence of judicial decision. A judge should not yield to pride of opinion or value more highly his individual reputation than that of the court to which he should be loyal. Therefore, except in case of conscientious difference of opinion on fundamental principle, dissents should be discouraged.
x x x x

[4] Rollo, p. 1.

[5] Id. at 6, 9; Annexes "A" and "C" of Complaint.

[6] Id. at 26; Annex "F" of Complaint.

[7] Id. at 67-80; Annex "J" of Complaint.

[8] Commissioners Borra, Brawner and Rene V. Sarmiento (Sarmiento) dissented while Commissioners Florentino A. Tuason Jr. (Tuason) and Nicodemo T. Ferrer (Ferrer) concurred. The chairman, Benjamin S. Abalos Sr. had resigned at the time.

[9] Commissioners Brawner and Sarmiento maintained their dissent while Commissioner Ferrer maintained his concurrence. Commissioners Borra and Tuason had retired by then.

[10] Rollo, pp. 95-98; Order of February 5, 2008 of the Comelec En Banc.

[11] Id. at 91-94.

[12] Id. at 155-161.

[13] Id. at 162-169.

[14] Id. at 178-216.

[15] Section 1. (1) There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.


[17] A.C. No. 4509, December 5, 1995, 250 SCRA xi.

[18] A.M. No. 88-4-5433, April 15, 1988, 160 SCRA 771.

[19] A.C. No. 3135, February 17, 1988, 158 SCRA 29.

[20] Section 2 of Article XI of the Constitution states that: "The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

[21] Commissioners Tuason Jr., Ferrer and Sarmiento. Resigned chairman Abalos Sr. is likewise a lawyer by profession.

[22] Vide: Alvarez v. Comelec, G.R. No. 142527, March 1, 2001, 353 SCRA 434, 437.

[23] Batas Pambansa Bilang 881.

[24] Sandoval v. Comelec, G.R. No. 133842, January 26, 2000, 323 SCRA 403, 423.

[25] In AM No. 03-05-01-SC dated April 27, 2004, the Court promulgated the "New Code of Judicial Conduct for the Philippine Judiciary," which took effect on June 1, 2004. The Canons of Judicial Ethics and the Code of Judicial Conduct shall be applied in a suppletory character in case of deficiency or absence of specific provisions in the New Code.

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