EN BANC
[ A.M. No. RTJ-13-2361 [Formerly OCA IPI No. 13-4144-RTJ]. February 02, 2016 ]
OFFICE OF THE COURT ADMINISTRATOR, COMPLAINANT, VS. PRESIDING JUDGE JOSEPH CEDRICK O. RUIZ, REGIONAL TRIAL COURT, BRANCH 61, MAKATI CITY, RESPONDENT.
DISSENT
BERSAMIN, J.:
The Majority of the Court vote to dismiss the respondent Judge from the Judiciary, and to disbar him as well.
I DISSENT. I humbly submit that this administrative matter may be prematurely adjudicated in the light of the pending appeal by the respondent of his convictions. But if it is unavoidable that we find him guilty on the basis of the convictions, I urge that his dismissal from the service and his disbarment are penalties too heavy and too harsh to mete on him under the circumstance of the case.
This administrative matter has been brought about by the receipt by the Office of the Court Administrator (OCA) of a copy of the decision rendered on April 29, 2013 in Criminal Case No. 27467 and Criminal Case No. 27468 entitled People v. Joseph Cedrick O. Ruiz and Police Inspector Pepe Nortal respectively charging the accused with violation of Section 3(e) of Republic Act No. 3019 and malversation of public funds, whereby the Sandiganbayan found the respondent guilty beyond reasonable doubt of the crimes charged, and sentenced him to suffer the corresponding indeterminate sentences.
In its ensuing report, the OCA recommended to the Court that the respondent, the incumbent Presiding Judge of Branch 61 of the Regional Trial Court in Makati City, be formally charged for being convicted of crimes involving moral turpitude, and that he be forthwith suspended without pay pending the resolution of the administrative matter, unless the suspension would be lifted by the Court.
I wish to point out, however, that the convictions are not yet final, but are in fact undergoing a timely appeal. By pronouncing him guilty in this administrative matter as to dismiss him from the Judiciary and to disbar him as a member of the Bar, the Majority of the Court are likely prejudicing his appeal. In order not to be unjust, I humbly opine that we should exercise self-restraint, and await the outcome of the appeal before deciding this administrative matter.
Although there is a distinction between administrative liability and criminal liability, for the purpose of administrative proceedings is mainly to protect the public service to enforce the constitutional tenet that a public office is a public trust, while the objective of the criminal prosecution is the punishment of the crime, any judgment in this administrative matter effectively removes the distinction considering that the Majority predicate their action against the respondent on the same evidence that will be considered in the appellate review of the convictions. Thus, the very adverse factual findings made in the Majority's opinion will prejudicially influence the review of the convictions against him.1aшphi1
Nonetheless, the harsh outcome, if it is now unavoidable such that we must sanction the respondent, should be mitigated. It will not be unprecedented to do so here, because the Court has refrained from imposing the administrative penalties expressly prescribed by law or regulation in consideration of the presence of mitigating factors, like, among others, the respondent's length of service, his ready acknowledgement of his infractions, his remorse, his family circumstances, his advanced age, and even humanitarian and equitable considerations, and impose the lower or lesser penalty.1
I urge the Court to show compassion to the respondent in light of the following mitigating factors in his favor, to wit:
1. He has devoted nearly 30 years of his life in the service of the Government in various capacities as a local appointed and elective public officer, and as a member of the Judiciary;2
2. This administrative charge relates to an act done when he was the Mayor of Dapitan City, and had nothing to do with the discharge of his office as Judge of the RTC;
3. He is being administratively sanctioned for the first time in this case. The other administrative complaints previously brought against him, according to the records of the Court, were already either dismissed,3 or cancelled,4 or closed and terminated.5
4. His convictions by the Sandiganbayan that furnished the ground for this administrative matter are still under appeal.6 Without touching on the propriety of the convictions, I submit that the criminal trial included peculiar circumstances of relevance in the determination of the imposable penalty.
Let me focus on the last of the foregoing mitigating factors. I begin by noting that the convictions largely depended on the direct testimony of Police Inspector Pepe E. Nortal, the respondent's co-accused, from which the trial court inferred that the respondent had actually received the amount of P1,000,000.00 as cash advance sourced from the Confidential Intelligence Fund (CIF) of Dapitan City for 2001. In contrast, the other testimonial and documentary evidence adduced by the Prosecution tended to show only that the respondent had merely actively facilitated the processing and withdrawal of the amount. To me, however, Nortal's testimony should not determine the respondent's administrative liability, for how could Nortal be a reliable witness if he was himself charged in conspiracy with the respondent with having committed the crimes charged.
A co-accused like Nortal — a co-conspirator at that — is not allowed to testify against another accused in the same case unless he is first discharged as a state witness. The discharge is necessary to avoid the self-incrimination of the witness. The process of discharge is delineated in Section 17, Rule 119 of the Rules of Court, viz.:
Section 17. Discharge of accused to be state witness. — When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that:
(a) There is absolute necessity for the testimony of the accused whose discharge is requested;
(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense involving moral turpitude.
Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence.
The rule requires the discharged witness not to appear to be the most guilty, a requirement that has been accorded the following understanding in Jimenez, Jr. v. People,7 viz.:
By jurisprudence, "most guilty" refers to the highest degree of culpability in terms of participation in the commission of the offense and does not necessarily mean the severity of the penalty imposed. While all the accused may be given the same penalty by reason of conspiracy, yet one may be considered to have lesser or the least guilt taking into account his degree of participation in the commission of the offense.
Before Nortal's testimony is appreciated against the respondent, there ought to be the showing that the proper procedure for his discharge was followed. If the April 29, 2013 decision of the Sandiganbayan did not indicate why Nortal was not himself tried for any criminal liability for the crimes charged against him and the respondent, then the Court, in this administrative matter, should at the very least first satisfy itself that Nortal did not appear to be the more guilty between himself and the respondent. Otherwise, we would have incriminating testimony that is tainted by the witness' desire to save himself and lay the blame on the respondent.
Moreover, the person liable in malversation is the public officer who, by reason of the duties of his office, is accountable for public funds or property, and appropriates the same.8 Here, that public official was Nortal, not the respondent, because the three documents relevant to the transaction - specifically, Disbursement Voucher No. 105.0105.3888,9 Check No. 1097358,10 and the Special Ledger11 - all indicated that the cash advance of P1,000,000.00 was payable to Nortal. Under the pertinent laws - specifically, Section 101 of Presidential Decree No. 1445 (The State Audit Code of the Philippines) and Section 5 of Commission on Audit (COA) Circular No. 97-002 - Nortal should liquidate the cash advance. The respondent, being only the approving authority for the release of the CIF, was liable only to explain his participation, which he was not made to do.1aшphi1
Nortal's ineligibility for the discharge to be a witness against the respondent due to his being the person directly accountable for the P1,000,000.00 cash advance was validated when the Ombudsman dismissed him from the service for grave misconduct.12 The Ombudsman concluded in its resolution dated April 20, 2007 as follows:
x x x Pepe E. Nortal, [he] admitted all the material allegations against him but interposed the defense of coercion and tremendous pressure from then Mayor Ruiz, which forced him to commit the unlawful act complained of even against his will.
His defense is untenable, outright unbelievable and not supported with any credible evidence. Other than the self-serving claim of respondent Nortal, there is nothing on record to show that he was coerced or intimidated into committing the wrongful act of withdrawing the amount of P1 Million from the CIF of the Office of the Mayor for the FY 2001. In fact, the wrongful act did not end with the simple withdrawal of the said amount because, as admitted by Nortal himself, he also benefited from the proceeds thereof when he received an aggregate amount of P55,000.00 as his share, and which amount remained unliquidated up to the present time. Having benefited therefrom, he cannot now profess innocence to escape liability as he knew all along about the highly questionable nature of the said transaction. By all indications, and knowing fully well that a new local chief executive was about to succeed, he, together with the outgoing Mayor, devised a plan to withdraw the entire CIF for the year 2001, appropriating the same for their own private interests and, consequently, depriving the city government of the said funds. It was, therefore, a deliberate act on their part to defraud the city government of its appropriated funds, which is a patent indicia of bad faith and deceit. As such, there can be no doubt that respondent Nortal committed a misconduct of a grave nature, which is a clear deviation from the established norms of conduct required of a public servant.13 (bold underscoring supplied for emphasis)
What should be the mitigated liability of the respondent?
The Court is sanctioning him now as an incumbent Judge of the RTC. Under Section 11, Rule 140 of the Rules of Court, a judge found guilty of a serious charge may be subjected to any of the following penalties:
Section 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.
Dismissal from the service should not be imposed because of the mitigating factors I have noted. The next penalty is suspension, but in the light of the respondent's manifestation of his intention to exercise his option for early retirement pursuant to Section 1 of Republic Act No. 910, as amended by Republic Act No. 9946,14 he could no longer be suspended. Thus, I recommend that he be fined in the amount of P40,000.00, which is the next lower penalty.
Lastly, I consider the disbarment of the respondent unfounded. The act complained against was done by him when he was the Mayor of Dapitan City, and did not involve his professional or ethical conduct as an attorney. Hence, disbarring him is unfair, because such penalty becomes proper only when the attorney commits any misconduct of a very serious or gross nature in connection to the discharge of his professional responsibilities. I also urge that at the very least we should first hear him fully on the matter.
ACCORDINGLY, I vote to punish respondent Judge JOSEPH CEDRICK O. RUIZ with the maximum fine of P40,000.00, conformably with Section 11, 3, Rule 140 of the Rules of Court; and to lift the sanction of his disbarment.
Footnotes
1 See, e.g., Office of the Court Administrator v. Judge Aguilar, Regional Trial Court, Branch 70, Burgos, Pangasinan, A.M. No. RTJ-07-2087 (Formerly OCA I.P.I. No. 07-2621-RTJ), June 7, 2011.
2 Rollo, pp. 348-349 (his judicial service started on December 17, 2003, upon his appointment as the Presiding Judge of Branch 49 of the RTC in Iloilo City; he was designated on July 1, 2009 as the Presiding Judge of Branch 61 of the RTC in Makati City).
3 OCA IPI No. 04-2121-RTJ; OCA IPI No. 10-3549-RTJ; OCA IPI No. 13-4060-RTJ; OCA IPI 09-3232-RTJ; OCA IPI No. 10-3358-RTJ; OCA IPI No. 12-3825-RTJ; OCA IPI No. 09-3169-RTJ; OCA IPI No. 12-3958-RTJ.
4 OCA IPI No. 14-4247-RTJ.
5 OCA IPI No. 11-10-193-RTC.
6 Docketed as G.R. No. 209073-74.
7 G.R. No. 209195 & 209215, September 17, 2014.
8 Article 217, Revised Penal Code.
9 Rollo, p. 161.
10 Id. at 164.
11 Id. at 197.
12 Id. at 209.
13 Id. at 208.
14 Id. at 348.
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