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A.M. No. P-02-1651 (FORMERLY OCA IPI No. 00-1021-P)

EN BANC

[ A.M. No. P-02-1651 (FORMERLY OCA IPI No. 00-1021-P), August 14, 2003 ]

ALEJANDRO ESTRADA, COMPLAINANT, VS. SOLEDAD S. ESCRITOR, RESPONDENT.

BELLOSILLO, J.:

SEPARATE OPINION*

Two roads diverged in a wood, and I
I took the one less traveled by
And that has made all the difference.
- Robert Frost, "The Road Not Taken"

BELLOSILLO, J.:

With due respect to my very gracious colleague, Mme. Justice Consuelo Ynares-Santiago, I beg to disagree with the majority view espoused by her. This is an exceptional case calling for an extraordinary solution, hence, the wise foreboding "not to go where the path leads; rather, go where there is no path, and blaze a trail!"

Indeed, it would have been too easy and convenient - for those who are not familiar with the whole story of this case - to conclude at first blush that immorality is present and penalty is its just reward; for the fabulous fans of the tide, their inference would not have had any better foundation. But in the proper context in which the events complained of transpired, we cannot avoid being drawn to the conclusion that respondent Soledad S. Escritor should be absolved of the administrative charge against her for there is absolutely nothing from her actuations that would constitute disgraceful or immoral conduct.

Contrary to some impressions, the core of complainant's factual allegations occurred long before respondent joined the judiciary in 1999. She was a widow capacitated to marry when she was appointed court interpreter. Her status as "separada" who had been faithfully, devotedly and peacefully taking good care of her family - her partner and their twenty-two (22) year old son - was sanctified as early as 1991 by the Jehovah's Witnesses, the religious group to which she and her family belonged, a period of almost ten (10) years before she was employed as court interpreter and before the instant complaint against her was filed in the year 2000. Indeed, in light of these facts, what better institution is there to judge her morality than her own church; what business does the government have to judge her conduct that is not criminal in nature nor destructive of her efficiency in the service? This is the pith and soul of what may be referred to as "a lonely voice in the wilderness."

For emphasis, respondent was already a widow when she joined the judiciary in 1999 as court interpreter of RTC-Br. 253, Las Piñas City. At that time she was legally free to marry her partner of more than twenty (20) years, one Feliciano D. Quilapio Jr., who has been her family ever since her husband Joselito V. de Torres, now deceased, abandoned her for another woman in 1979. Unfortunately it is Feliciano who remains incapacitated to exchange vows with respondent since his wife from whom he had been separated de facto even before he and Soledad fell in love with each other, is still alive and their marriage subsisting in the cold eyes of the law. These legal complications however vanished in the stream of care, understanding and love as they bore their first and only child, now twenty-two (22) years of age, in a family that each never had in their past marriages.

Respondent and her de facto husband belong to the church known as Jehovah's Witnesses. According to their congregation, the informal conjugal partnership between them has been characterized by faithfulness and devotion to each other for more than two (2) decades. On 28 July 1991, with the proper inspiration and guidance of their spiritual leaders in Atimonan, Quezon, where they were then residing before their transfer to Metro Manila, Soledad and Feliciano voluntarily executed a document called "Declaration Pledging Faithfulness," conformably with their religious practice and with the sanction of their respected elders in the Jehovah's Witnesses who acted willingly as their witnesses. In this document they confirmed the presence of legal impediments to their marrying each other but nonetheless promised to remain loyal and committed to one another at all times as they sought all avenues to obtain legal recognition of their union by civil authorities.[1]

As the record also shows, the "Declaration Pledging Faithfulness" was issued only after an exhaustive investigation of the personal circumstances of respondent and her partner Feliciano while they were still residents of Atimonan, Quezon, approximately more than two hundred (200) kilometers away from Las Piñas City where respondent was eventually employed. The religious document was not given out perfunctorily and indiscriminately. It was executed in their favor and released to them only after some ten (10) years of faithful and uneventful cohabitation, as well as close monitoring and observation, and long before the instant complaint was filed.

On 22 August 2000 respondent was charged with the administrative offense of "Disgraceful and Immoral Conduct," a grave offense under the Omnibus Civil Service Rules and Regulation, by a total stranger in her life and place of work. Complainant is a resident of Bacoor, Cavite, while respondent's place of work is in Las Piñas City. Quite obviously, the sudden spark of "moral conscience" on the part of complainant Alejandro Estrada was stage-managed by an "unseen hand" against whom respondent had earlier filed an administrative complaint; hitting back, in other words.

A total outsider and a mere kibitzer in the "war" between respondent and the "unseen hand," complainant confessed that he had nothing personal against respondent whom he did not even know, much less acquainted with, but simply wanted allegedly to protect the court from the embarrassment of having to "employ a person of questionable moral standards." Significantly, while accusing her of disgraceful and immoral conduct, complainant admitted that respondent was a "decent woman."[2] All told, the accusation is a fiddle and a ruse meant to impress all and sundry into believing that strangers and people in general have become "moral crusaders without compassion" - a simply silly thought in the midst of awry moral priorities and rampant rent-seeking incredibly tolerated in our society. The succeeding paragraph apparently shows the bias and prejudice of respondent's presiding judge against her.

On 9 October 2000 respondent moved for the inhibition of the presiding judge of RTC-Br. 253, Las Piñas City, whom she accused of partiality due to the administrative complaint she had filed against him with the Office of the Court Administrator. In her perception, complainant Estrada was only a dummy of her presiding judge who, quite interestingly, was himself the subject of two (2) administrative cases for "acts of serious impropriety unbecoming a judge"[3] and for "gross ignorance of procedural law and unreasonable delay in the issuance of an order for the execution of a civil judgment."[4] But the presiding judge denied the motion for his inhibition reasoning out that the mere filing of an administrative complaint against him by respondent did not disqualify him from hearing the case.

On 12 October 2000 respondent was able to confront her accuser as their respective testimonies were taken one after the other. Curiously, the presiding judge volunteered to act as counsel, as he did, for Soledad Escritor when the latter manifested that she had no lawyer who could take her direct testimony, (a seemingly improper procedure considering that he is the respondent in the other administrative case filed by respondent herein against him), thus leaving to his discretion the details of respondent's defense that went on record. Respondent judge in fact propounded the direct questions on respondent Escritor.

On 7 November 2000 the presiding judge endorsed the complaint along with respondent's answer thereto and the transcript of the initial proceedings to Executive Judge Manuel B. Fernandez Jr. of RTC, Las Piñas City, who on 13 November 2000 in turn transmitted the records to the Office of the Court Administrator for proper disposition.

On 17 July 2001 we ordered respondent Escritor to comment on the letter-complaint of Estrada, which she promptly did. On 22 January 2002 Executive Judge Bonifacio Sanz Maceda, RTC, Las Piñas City, was directed by the Court Administrator to investigate the letter-complaint and to submit his report and recommendation thereon within sixty (60) days from receipt of the records.

The parties presented their respective witnesses and documents on three (3) hearing dates where the offer of evidence apparently revolved around Judge Maceda's formulation of the issue, i.e., whether to exact from respondent Escritor the moral standards of the Catholic faith in determining her administrative responsibility when she is a member of the Jehovah's Witnesses.[5] In the investigation a quo, respondent proved the due execution and authenticity of the "Declaration Pledging Faithfulness."

On 1 July 2002 Judge Maceda rendered his Report and Recommendation absolving respondent of the charge of immorality on the ground that her relationship has been well-accepted by the religious sect to which she and her partner adhered.

Indeed, it is not quite possible to state with precision and fix an inflexible standard for the administrative offense of disgraceful and immoral conduct, or to specify the moral delinquency and obliquity that should render employees of the judiciary unworthy of the public trust. Immorality covers a multitude of sins and it may be doubted whether there are in the entire civil service many persons so saintly as never to have done any act which is disapproved by the prevailing mores of our society.[6] Truly, while in the opinion of many, laziness, gluttony, vanity, selfishness, avarice and cowardice constitute in themselves immoral conduct, moral guardians get around or avoid punishing them tangibly.

To find merit in a charge of disgraceful and immoral conduct is therefore a sensitive task, especially so when considered against the gravity of the offense and penalty attached to it by law[7] together with the social consequence of ascribing a "badge of infamy," so to speak, that disqualifies the respondent from any further employment, including prospects of private employment, which stamps the stigma of official defamation of character.[8] To say the least, we must be careful when delineating the fine line separating the simply obnoxious or unconventional behavior from the genuinely actionable conduct meriting administrative discipline.

"Disgraceful and immoral conduct" is never considered in the abstract but always in the context of conduct that is hostile to the welfare of a particular profession or the specific governmental position to which the alleged disgraceful and immoral employee belongs.[9] To some degree the determination of disgracefulness and immorality must depend upon the nature of the acts, the circumspection or notoriety with which they are performed and the atmosphere of the community, i.e., the standards of the general public and not some higher standard,[10] in which they take place.[11] As explained in Morrison v. State Board of Education -
By interpreting these broad terms to apply to the employee's performance on the job, the decisions x x x give content to language which otherwise would be too sweeping to be meaningful. Terms such as "immoral or unprofessional conduct" or "moral turpitude" stretch over so wide a range that they embrace an unlimited area of conduct. In using them the Legislature surely did not mean to endow the employing agency with the power to dismiss any employee whose personal, private conduct incurred its disapproval. Hence the courts have consistently related the terms to the issue of whether, when applied to the performance of the employee on the job, the employee has disqualified himself.[12]
This understanding is crucial because our jurisprudence defines disgraceful and immoral conduct as "that which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community,"[13] none of which is true in this case, and the Constitution recognizes our multi-cultural experience and decrees a principle of unity in diversity. As the definition poignantly suggests, a charge of disgraceful and immoral conduct does not depend solely upon the character of the protested act or series of acts but must include a holistic evaluation of the circumstances obtaining in each case.[14]

Even this Court's oft-repeated justification for penalizing disgraceful and immoral conduct does not treat the questioned action in isolation nor chastises it for its own sake, but instead refers to the tendency of the allegedly disgraceful and immoral conduct to discredit either the employee himself or the service. Verily, in appropriate cases, private morality can be isolated from the circumscription of the public sphere where respondent's moral lapses do not prove prejudicial to the service.[15]

Given the foregoing standard by which to judge a particular conduct as disgraceful and immoral, Executive Judge Bonifacio Sanz Maceda of RTC, Las Piñas City, as investigating Judge was correct when he reduced the issue in this case to whether the moral standards of the Catholic faith, to which a great majority of us belongs, must be exacted of respondent in determining her administrative responsibility when she is a member of the Jehovah's Witnesses, and recommended the absolution of respondent of the charge of disgraceful and immoral conduct on the ground that her relationship has been well-accepted by the religious sect to which she and her partner adhered. But even if we do apply the standards of the Catholic faith to non-Catholics, although we should not, Judge Maceda's recommendation to free respondent from any culpability is clearly justified as respondent's actuation is not, nor is it even hinted at that it is, prejudicial to the service.

None can honestly posit, much less assert, that respondent is guilty of disgraceful and immoral conduct in the sense that she had done something willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community in a manner prejudicial to the service. For one, punishing Soledad Escritor by any kind of penalty will not solve or prove anything because she stands to be harassed and penalized again and again every time somebody dislikes her face, as her situation will inevitably continue until we direct them to break up their church-sanctioned relationship, which we are not prepared to do for being cruel and unusual.

The alternative is not any better. This Court might be dissolving a strong and peaceful family of more than two (2) decades and, in the extreme case, deprive respondent of livelihood from which to feed herself and her family. At bottom, if we are to uphold the complaint, we will be breaking up an otherwise ideal union of two (2) individuals who have managed to stay together as husband and wife for more than twenty (20) years and at peace with the world as solemnly attested to by the Jehovah's Witnesses to which they belong. And what happens to their son born of their happy union? Certainly, it will adversely affect him in his interaction with his friends and neighbors. This, in all conscience, Christians cannot countenance.

Moreover, there is simply nothing disgraceful and immoral in respondent's decision to pursue her happiness, and perhaps security, after her lawful husband abandoned her for another woman. She did not forsake any child nor desert her household. It was her philandering husband who left her for another woman. To paraphrase Judge Learned Hand, Soledad was not obligated to live in complete celibacy otherwise forfeit her claim to good moral character.[16] There ought to be a better order of moral priorities to avoid the perceived fixation on sex where a person may have impeccable sexual standards - or indeed be celibate - and yet steal.

To be sure, there are matters that are best left to the conscience and the moral beliefs of an individual, and matters of which public law may take cognizance. Obviously, while the latter pertains to matters affecting society and public life, not every "irregular union" constitutes immorality that is actionable under administrative law. Consider this: a Catholic who obtains a decree of nullity from his church would be available to remarry by the norms and precepts of his faith and moral standards. Before civil law, however, his marriage would be bigamous. The second union may be categorized as a crime, but one would hardly be justified in classifying it as "immoral conduct" because the moral standards he lives by - those of his faith - precisely permit him the second marriage. To hold that the second union is immoral would be to bind him to follow moral precepts divergent from those imposed upon him by his faith, contrary to the freedom of conscience and practice of his religion guaranteed under the Constitution.

That is why, although some years back society decried solo parenthood and de facto separated couples as an affront to the conventional wisdom of a model family, recent social justice legislation has compassionately redefined the concept of family to include single mothers and their children regardless of the mother's civil status, otherwise no single parent would be employed by the government service, and that would be discriminatory, if not to say, unconstitutional![17] In the opinion of a Philippine Daily Inquirer columnist on the standards of the general public of what is moral and decent,[18] the humane and moral response to dysfunctional marriages is that -
The quality or authenticity of a family, or a marriage for that matter, does not lie in its legal status alone, or on the united front that spouses present before polite society. Rather, it lies in the relationship between spouses and between them and their children and other members of the family. If there is genuine caring and concern, respect and fondness among them, then it is a family in the fullest sense of the word. But if there is only pretense, indifference and hypocrisy, or worse, cruelty and pain, then that marriage is better off ended, the family better off liberated.[19]
It must be emphasized that nothing was presented in the investigation a quo to prove that respondent lived her life in a scandalous or disgraceful manner, or that by any means she has affected her standing in the community.[20] Certainly there was no intention on her part to embarrass the judiciary since the relationship started in 1980 and blessed by ministers and elders of the Jehovah's Witnesses in 1991 in Atimonan, Quezon, after establishing a faithful partnership of more than ten (10) years.

Although a verified complaint consisting of hearsay allegations could be the basis of an administrative case,[21] it begs explanation why only such a weak charge from a total stranger could be mustered against respondent for her allegedly immoral relationship spanning more than twenty (20) years. Let it be further underscored that the legal wife of her partner Feliciano, indisputably the person most concerned, or any other individual from Atimonan, Quezon, or in Las Piñas City where respondent found employment, has not sounded any objection to the relationship. This fact clearly shows that respondent has not jeopardized her honor, nor that of any citizen in the community.

Indeed, if respondent's conduct were truly willful, flagrant, shameless, and immoral in the view of the good and respectable members of the community, there is no sense why her co-employees themselves never complained against her conduct. Their silence genuinely indicates not only the absence of outrage and scandal within the Hall of Justice of Las Piñas City arising from respondent's relationship with Feliciano D. Quilapio Jr., but in all probability also the community's acceptance, if not respect, for her true faith and steadfast commitment to her partner and family of more than two (2) decades.

There is no cogent reason to justify any action that will disrupt or break apart the peaceful existence of the family founded by Soledad and her other half. The record does not show that they have caused discomfiture and embarrassment to the judiciary nor that the relationship ever compromised her duties as a court interpreter. Her efficiency in her job has never been doubted for any reason attributable to the union with her informal partner. Certainly we cannot describe the concern and love she has for so long exhibited as a willful, flagrant and shameless conduct.

Without doubt, too, the genuine sensitivity and overwhelming solicitude of respondent to the demands of morality and righteousness, and "the opinion of the good and respectable members of the community," are manifested by her attempt to seek the clarification and guidance of her moral mentors - the elders of the church to which she and her partner belong; they who in 1991 ruled that they did not find anything immoral about the union. Precisely, in the "Declaration Pledging Faithfulness" before revered elders of the Jehovah's Witnesses, respondent and her partner promised to secure the formal approval of civil authorities and to stay devoted to each other thus -
I, Soledad Escritor, do here declare that I have accepted Feliciano D. Quilapio, Jr. as my mate in marital relationship; that I have done all within my ability to obtain legal recognition of this relationship by the proper public authorities and that it is because of having been unable to do so that I therefore make this public declaration pledging faithfulness in this marital relationship.

I recognize this relationship as a binding tie before "Jehovah" God and before all persons to be held to and honored in full accord with the principles of God's Word. I will continue to seek the means to obtain legal recognition of this relationship by the civil authorities and if at any future time a change in circumstances makes this possible, I promise to legalize this union.
It bears stressing that the "Declaration Pledging Faithfulness," a duly executed and genuine document, was not perfunctorily or indiscriminately issued; it was only after some ten (10) years of authentic family life and an exhaustive investigation and evaluation of the relationship of the parties thereto. Clearly, the act was done long before the instant complaint was filed and definitely with no intention to deceive anyone as to the character and motive of their union. While we do not encourage such a union, we cannot on the other hand totally ignore a fact of life.

The Jehovah's Witnesses is one of the respected congregations of Christians in the country. It counts among its members upright and productive citizens whose views on morality cannot be disregarded. Consequently when elders of this religion affixed their imprimatur on the "Declaration Pledging Faithfulness" they validated the moral legitimacy of respondent's informal conjugal partnership. Of course, first and foremost, the appropriate judge of respondent's morality is her own church and this task cannot be assigned to any other institution in society if any religious congregation is to have any purpose at all.

We cannot ignore the religious sentiment of the Jehovah's Witnesses which in any event falls squarely within society's interest in a functional family. This Court's respect for the positive traditions of the Jehovah's Witnesses stands on equal footing with our deference to a Muslim judge's prerogative to have more than one wife in exceptional cases provided he can deal with them with equal companionship and just treatment as enjoined by Islamic law[22] as with any other legitimate social and cultural practices.

Verily, this is not the first time that this Court is dismissing a charge of disgraceful and immoral conduct on the ground of distinctive bona fide beliefs and practices. In Sulu Islamic Association of Masjid Lambayong v. Malik we dismissed the charge of immorality against a Tausug judge for engaging in an adulterous relationship with another woman with whom he had three children because "it [was] not `immoral' by Muslim standards for Judge Malik to marry a second time while his first marriage [existed]."[23] In De Dios v. Alejo[24] we quoted with approval a decision of the then Board of Civil Service to extend compassion to a situation analogous to the instant case -
Of equal pertinence to the case at bar, is the decision of the Board of Civil Service in Administrative Case No. III x x x promulgated on July 30, 1941. The Board of Civil Service Appeal ruled as follows: "x x x x The complainant in this case was a total outsider, and the legal wife, who are the persons most concerned, have not vowed any objection to the situation. This fact, while not significant by itself, reveals that the respondent has not jeopardized the honor of any third person. This Board is aware that it is not an easy task to determine whether a certain improper conduct constitutes immoral conduct within the meaning of the Civil Service Rules and Regulations to warrant removal from the service; but in this particular case, this Board is fully convinced that the respondent in taking another woman - was impelled by no other than an honest and decent intention to overcome his misfortune and to live anew to take his natural place among his fellowmen. It would be in violation of all human conventions - cruel to say the least - to require the respondent to live with his unfaithful spouse. The respondent is a mere principal clerk - a position which does not exercise a moral influence in the community x x x x It is pertinent to state here that the efficiency of the respondent in the discharge of his duties is not questioned x x x x In this connection, we quote the words of Governor General Theodore Roosevelt in the case of Municipal Treasurer Juan T. Soriano who was similarly charged with immorality way back in 1932: The undersigned x x x would be inclined to favor dropping this case entirely and restoring him to his former positions. There are involved in the case six people beside himself - his legal wife, the woman with whom he is living, and four children. It does not appear that any of these people who are most concerned of all have voiced an objection to the situation as it existed for ten (10) years nor that they would be in anyway benefited by the action proposed herein. In fact, such action would probably work great hardship on most of them.[25]
The cases where the charge of disgraceful and immoral conduct was sufficiently proved by evidence cannot be controlling since the instant case differs from them in several respects. In Marquez v. Clores-Ramos,[26] Bucatcat v. Bucatcat[27] and Maguad v. De Guzman,[28] for example, the illicit relationship in question clearly caused furor within the community whose moral sensibilities were offended as shown by the social standing and manifest interest of the complainants therein. In the instant case, all we have is the word of a kibitzer who could not even get the support of respondent's co-employees to prove that Soledad's actions indeed caused scandal in the office and in the community at large.

Furthermore, unlike the relationship between respondent and her mate, the informal partnership in Clores-Ramos, Bucatcat and De Guzman blossomed while the parties concerned were already employees of the trial court, and worse, without the benefit of the same respect showed by respondent for "the opinion of the good and respectable members of the community" since the guilty liaisons therein were fueled only by passion for the paramour. Quite obviously, as demonstrated by the fact that Soledad was admitted into the service and allowed to assume office as court interpreter despite her relationship with Feliciano D. Quilapio Jr., the judiciary believed in the innocence of her domestic arrangement for more than twenty (20) years and fully accepted her private morality.

The human side of this case should not be totally ignored because respondent's present position is not one which has caused scandal to anyone truly concerned with public morality. The instant case may therefore be viewed and appreciated with human understanding as indeed it is more attuned to the interest of society and public service that she be able to fulfill her obligation of maternal support and care for her son and true family than for us to tear apart an otherwise ideal union of two loving and respectable individuals.

While this Court is aware of the not-so-easy and clear-cut task of determining whether certain improper conduct would constitute disgraceful immorality and warrant administrative discipline, to be sure, in this particular case we are wholly convinced that respondent in living with her present partner to foster a wholesome family was impelled by only the honest and decent intention to overcome her previous marital misfortune and to take anew her natural place in a pleasant and wholesome community. Without fear of contradiction, it would be violating godly laws of charity and love and, to say the least, embracing cruelty and hypocrisy, if we should require respondent to abandon her faithful spouse and loving son, or penalize her for treasuring the unity of her family as she would keep her work, for the punctilious satisfaction of a blind world.[29]

More enlightened jurisdictions would treat adverse personnel actions, i.e., dismissal, suspension, fine or other penalties, arising from a charge of immoral conduct with due consideration of the constitutional rights of due process and privacy. We may also apply the same standard in the instant case if only to accord ample recognition to the principle that a civil servant does not surrender his constitutional rights once he assumes public service, hence, he may not be dismissed from his job for a constitutionally impermissible reason.[30]

Mindel v. Civil Service Commission,[31] for example, involves a post office clerk who was removed from the service for "immoral conduct" because he had lived with a young lady without the benefit of marriage. The federal court ordered his reinstatement since "Mindel's termination was arbitrary and capricious, and therefore violated due process x x x and his right to privacy."[32] It was observed that Mindel was employed in a most insensitive position as postal clerk and his alleged conduct was discreet, not notorious, much less scandalous.[33] The federal court held finally that even if Mindel's conduct can be characterized as "immoral," he cannot constitutionally be penalized on this ground absent "a rational nexus between his conduct and his duties as a postal clerk. A reviewing court must at least be able to discern some reasonably foreseeable specific connection between an employee's potentially embarrassing conduct and the efficiency of the service."[34]

Clearly, "immorality" as a category of offense for the dismissal of a public servant or a judicial employee should not be construed as any violation of moral prescriptions. Otherwise, this tack would only embroil this Court in the eternal debate on divergent moral theories and systems. For a public servant, the pivotal question in determining administrative culpability ought to be whether the challenged conduct was ultimately prejudicial to public service. We cannot snoop into bedrooms and peer under bed covers without running afoul of every person's constitutionally protected individuality. Quite interestingly, in American jurisprudence, conduct affecting one's personal character has been excluded from the ambit of actionable behavior. It stressed: "But conduct amounting to mere irregularity or merely affecting one's character as a private individual is not usually covered by the term `malconduct.'"[35]

We agree with the ponente, Mr. Justice Reynato S. Puno, that we may resolve this case on the basis of the standards of religious freedom. Nonetheless, this is not the threshold issue. Religious freedom may constitute Escritor's defense in avoidance but must she in first place get around eluding an offense whose elements were proved?

Respondent is charged with Disgraceful and Immoral Conduct. The primary question should therefore be: Does the evidence show both disgrace and immorality at the same time? As has been carefully explained above, one without the other does not constitute the transgression. The plain significance of the words conspiring Disgraceful and Immoral Conduct supports this proposition. Absent any evidence confirming the presence of disgrace and immorality simultaneously, the wrongdoing was not commited and concomitantly there is no occasion to delve heavily on religious freedom. The situation is not unlike a criminal case of homicide - self-defense need not be invoke and examined until tere is proof that somebody has been killed.

If we go by the definition of disgrace, then we would be requiring evidence to prove a question of fact, i.e,. "that which is willful, flagrant, shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community" Unfortunately for complainant, no evidence has been has been presented on this score; hence, no administrative misconduct of Disgraceful and Immoral Conduct may be found. El incumbit probotio, qui dicit, non qui negat. He who asserts, not he who denies, must proved. Is respondent now called upon to proved what complainant failed to proved? This unusally and awkwardly unprocedural!

In fact, the reverse is true: No disgraceful conduct may be inferred from the actuations of respondent since even her church or religion sanctifies her relationship; complainant himself admits that Escritor is a decent woman; no question has been raised on her efficiency in the service; and community standards have been changing as shown by the Solo Parent's Welfare Act of 2000 and the attitude of people who shaped public opinion.

We also cannot deduce immorality from the "unusual" set-up in the family of Escritor. This I say because of sec. 3, Art. XV, of the Constitution which provides, "The State shall defend x x x [t]he right of spouses to found a family in accordance with their religious convictions and the demand of responsible parenthood x x x x" This rule is broad enough to include de facto family relations since it would be absurd to deny the free exercise of religious convictions by virtue of the existence or non-existence of marriage. Besides, such "atypical" family organization is not immoral per se considering the leeway granted to Moros in Sulu Islamic Association of Masjid Lambayong v. malik, and in PD 1083, for surely if the arrangement is itself heinous no law could be validly enacted to endorse it.

More than religious freedom, I look with partiality to the rights of due process and privacy. Law in general reflects a particular morality or ideology, and so I would rather not foist upon the populace such criteria as "compelling state interest," but more, the reasonably foreseeable specific connection between an employee's potentially embarrassing conduct and the efficiency of the service. this is a fairly objective standard than the compelling interest standard involved in religious freedom.

Verily, if we are to remand the instant case to the Office of the Court Administrator, we must also configure the rights fo due process and privacy into the equation. By doing so, we can make a difference not only for those who choose to live a meaningful life even if it means sometimes breaking "oppressive" and "antiquated" application of laws but are otherwise efficient and effective workers. As is often said, when we have learned to reverence each individual's liberty as we do our tangible wealth, we then shall have our renaissance.

Mr. Justice Antonio T. Carpio is candid enough to admit that Escritor is not liable for Disgraceful and Immoral Conduct. I am grateful that he took account of the two (2) words that make up the offense, i.e., disgraceful and immoral, to decide the way he did. But there can be no comfort with the rest of his position to find Escritor guilty of Conduct Prejudicial to the Best Interest of the Service allegely because she is continuously engaging in concubinage in violation of the Revised Penal Code. It is time to tame the tenacity to uncover fault out of this poor woman's conduct.

We may admit that there is Conduct Prejudicial to the Best Interest of the Service where the efficiency, integrity and credibility of the civil service or of the administration of justice are adversely affected. I however do not discern any evidence of these harmful consequences. Verily, the opposite is again true: complainant admitted that respondent Escritor is a decent woman and has not caused embarrassment to the judiciary. On the other hand, if we penalize respondent, force her family to break up and remove her job, it is then that we will prejudice government service.

Certainly, we are not jeopardizing the ability of government to execute the laws faithfully and credibly by allowing the respondent to continue with her present family relations. In the first place, she cannot be said to be breaking the proscriptions of the Revised Penal Code since there is no conviction by final judgment against her for concubinage; as it is, she is entitled to the presumption of innocence. Furthermore, Art. 344 of the Revised Penal Code itself offers the Justification for the government not to prosecute and persecute Escritor as this law requires a complaint from the offended spouses for any action thereon to prosper. In the absence of such complaint as in the case at bar, we cannot conclude that the government is being partial to respondent for not enforcing the pertinent penal provisions against her.

It is more than a matter of sympathy; it is a clear does of justice indeed to conclude that respondent did not fail to live up to her ethical obligations; in conscience and in law, this Court should be the last, and never, to cast the stone and stamp the badge of infamy upon her legitimate desire for personal security and safety that in reality has bothered no one, least of all, our own judicial institution.

WHEREFORE, I do not agree with the respective views expressed by Mme. Justice Consuelo Ynares-Santiago and Mr. Justice Antonio T. Carpio but concur with the ponencia of Mr. Justice Reynato S. Puno in the result.



* Originally a Dissenting Opinion to the ponencia of Mme. Justice Consuelo Ynares-Santiago hence the tenor of this Separate Opinion.

[1] Record, p. 15.

[2] TSN, 12 October 2000, p. 7; Rollo, p. 23.

[3] Alumbres v. Caoibes, A.M. No. RTJ-99-1431, 23 January 2002.

[4] Spouses Monterola v. Caoibes, A.M. No. RTJ-01-1620, 18 March 2002.

[5] Hearings were held on 8 March 2002, 15 April 2002 and 29 May 2002; see Report and Recommendation, p. 3.

[6] Norton v. Macy, 417 F.2d 1161 (1969).

[7] The Omnibus Civil Service Rules and Regulations classifies "disgraceful and immoral conduct" as a grave offense and imposes the penalty of suspension from office for six (6) months and one (1) day to one (1) year in the first instance.

[8] Norton v. Macy, supra at 1164.

[9] Morrison v. State Board of Education, 461 P.2d 375 (1969).

[10] Risner v. State Personnel Board of Review, 381 N.E.2d 346, 350 (1978).

[11] Major v. Hampton, 413 F. Supp. 66 (1976).

[12] Morrison v. State Board of Education, supra at 382.

[13] Obusan v. Obusan, A.C. No. 1392, 2 April 1984, 128 SCRA 485, 487; Narag v. Narag, A. C. No. 3405, 29 June 1998, 291 SCRA 451.

[14] Madredijo v. Loyao, A.M. No. RTJ-98-1424, 13 October 1999, 316 SCRA 544; Santos v. National Labor Relations Commission, G.R. No. 115795, 6 March 1998, 287 SCRA 117.

[15] De Dios v. Alejo, A.M. No. P-137, 15 December 1975, 68 SCRA 354; Burgos v. Baduel, A.M. No. P-11, 30 April 1976, 70 SCRA 416.

[16] Schmidt v. United States, 177 F.2d 450, 451 (1949).

[17] Rep. Act No. 8972 (2000). This law is popularly known as "Solo Parents' Welfare Act of 2000."

[18] See the "2002 ISSP Survey on the Family" of the Social Weather Station which concluded that "[o]nly 28% agree, whereas 58% disagree, that `It is better to have a bad marriage than no marriage at all'" at http://www.sws.org.ph..

[19] "Welcome Relief for Couples, Courts," At Large by Columnist Rina Jimenez-David, 19 January 2003 issue of the Philippine Daily Inquirer.

[20] Burgos v. Baduel, A.M. No. P-11, 30 April 1976, 70 SCRA 416.

[21] Celis v. Marquez, A.M. No. R-156-P, 27 August 1985, 138 SCRA 256 citing Anonymous Complaint v. Araula, A. M. No. 1571-CFI, 7 February 1978, 81 SCRA 483; Bernardo v. Fabros, A.M. No. MTJ-99-1189, 12 May 1999, 307 SCRA 28.

[22] See Pres. Decree No. 1083 (1977), Art. 27. This law is entitled "A Decree to Ordain and Promulgate a Code Recognizing the System of Filipino Muslim Laws, Codifying Muslim Personal Laws, and Providing for its Administration and for Other Purposes."

[23] A.M. No. MTJ-92-691, 10 September 1993, 226 SCRA 193, 199.

[24] A.M. No. P-137, 15 December 1975, 68 SCRA 354.

[25] Id., pp. 359-360, 362.

[26] A.M. No. P-96-1182, 19 July 2000, 336 SCRA 122.

[27] A.M. No. P-93-985, 28 January 2000, 323 SCRA 578.

[28] A.M. No. P-94-1015, 29 March 1999, 305 SCRA 469.

[29] See Burgos v. Baduel, A.M. No. P-11, 30 April 1976, 70 SCRA 416.

[30] McMahon v. Board of Selection of Town Newtown, 506 F.Supp. 537 (1981).

[31] 312 F. Supp. 485 (1970).

[32] Id., p. 487.

[33] Ibid.

[34] Ibid.

[35] 63 A Am. Jur. 2d, Public Officers and Employees, Sec. 247.

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