[G.R. No. 114829 March 1, 1995]

MAXIMINO GAMIDO Y BUENAVENTURA, petitioner, vs. NEW BILIBID PRISONS (NBP) OFFICIALS, respondents.

DAVIDE, JR., J.:

In the Resolution of 7 September 1994, we required Atty. Icasiano M. dela Reaof No. 42 National Road corner Bruger Subdivision, Putatan, Muntinglupa, Metro Manila, to show cause why no disciplinary action should be taken against him for making it appear in the jurat of the petition in this case that the petitioner subscribed the verification and swore to before him, as notary public, on 19 April 1994, when in truth and in fact the petitioner did not.

In his Explanation of 23 December 1994 which was received by this Court on 25 January 1995, Atty. Icasiano M. dela Rea admitted having executed the jurat without the presence of petitioner Gamido. He alleges:

Firstly, I must honestly admit that I notarized it not in his presence. I did it in the honest belief that since it is jurat and not an acknowledgement, it would be alrights [sic] to do so considering that prior to April 19, 1994 and thereafter, I know Mr. Gamido since I have been in and out of New Bilibid Prisons, not only because my office is here only across the Municipal Building of Muntinlupa, Metro Manila but because I handled a number of cases involving prisoners and guards of NBP as well as some of its personnels [sic]. That in fact, I attempted to have the document personally signed by him but considering that I have to strictly observe rules and regulations of the NBP, particularly on visit, I did not pursue anymore my intention to have it notarized before me.

Secondly, that in notarizing the document, I honestly feel and by heart and ingood faith, that as a notary public and as a practicing lawyer, I could modestly contribute in the orderly administration of justice. The Gamido family use to come in the office and in fact hiring the legal services of the undersigned but I refused to handle since I am already pre-occupied in other cases of similar importance. That on December 13, 1994 I receive a letter from Mr. Gamido, last paragraph of which is read as follows:

Sanay po Atty. ay maawa kayo sa akin na nagdudusa nang walang kasalanan.Alang alang po sa kaawa awa kong familiya, kailangan ang aking kalinga. Angtulong ninyo ang siyang daan upang ako ay makaalis sa pagpapahirap nang mga taong walang puso at kaluluwa, walang awa sa kapwa, at sa sambayanang Pilipino.

Then he apologizes to the Court and assures it that henceforth he would be more careful and circumspect:

That I am praying for an apology to the Hon. Supreme Court if what I did was wrong and the Hon. Supreme Court is assured that perhaps what transpired was a wrong judgment or honest mistake. That the Hon. Chairman and its Hon. Members are assured that when I signed the petition not in Gamido’s presence it is never intended to do a wrong, to commit illegal or criminal acts but merely in the honest and sincere belief that it is valid and legal. The Hon. Supreme Court is assured that it is never intended for malice or for money.

This Hon. Chairman and its Hon. Members are further assured that from hereon, I am more careful and circumspect in the exercise of this noble and grand profession and that no amount or consideration will sway or change this conviction. This is my life. This is the life of my family.

Atty. dela Rea’s explanation is unsatisfactory; however, his spontaneous voluntary admission may be considered in mitigation of his liability.

As a notary public for a long time, as evidenced by the fact that his questioned jurat is indicated to have been entered in Book 45 of his notarial register, he should know the similarities and differences between a jurat and an acknowledgement.

A jurat which is, normally in this form:

Subscribed and sworn to before me in _______________, this ____ day of

____________, affiant having exhibited to me his Community (before, Residence) Tax Certificate No. ____________ issued at ______________ on ____________.

“is that part of an affidavit in which the officer certifies that the instrument was sworn to before him (Theobald vs. Chicago Ry. Co., 75 Ill. App. 208). It is not a part of a pleading but merely evidences the fact that the affidavit was properly made (Young vs. Wooden, 265 SW 24, 204 Ky. 694).” (LORENZO M. TAÑADA and FRANCISCO A. RODRIGO, Modern Legal Forms, vol. I, sixth ed., 1985 printing, 31). The jurat in the petition in the case also begins with the words “subscribed and sworn to me.”

To subscribe literally means to write underneath, as one’s name; to sign at the end of a document (Black’s Law Dictionary, Fifth ed., 1279). To swear means to put on oath; to declare on oath the truth of a pleading, etc. (Id., 1298). Accordingly, in a jurat, the affiant must sign the document in the presence of and take his oath before a notary public or any other person authorized to administer oaths.

As to acknowledgment, Section 1 of Public Act No. 2103 provides:

(a) The acknowledgement shall be made before a notary public or an officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be made under his official seal, if he isby law required to keep a seal, and if not, his certificate shall so state. (See Lorenzo M. Tañada and Francisco A. Rodrigo, Modern Philippine Legal Forms, vol. II, 1964 Fifth ed., 735).

It is obvious that the party acknowledging must likewise appear before the notary public or any other person authorized to take acknowledgments of instruments or documents.

The claim or belief of Atty. dela Rea that the presence of petitioner Gamido was not necessary for the jurat because it is not an acknowledgment is patently baseless. If this had been his belief since he was first commissioned as a notary public, then he has been making a mockery of the legal solemnityof an oath in a jurat. Notaries public and others authorized by law to administer oaths or to take acknowledgments should not take for granted thesolemn duties appertaining to their offices. Such duties are dictated by publicpolicy and are impressed with public interest.

His prior acquaintance and friendship with petitioner Gamido provides no excuse for non-compliance with his duty. If Atty. dela Rea were faithful to his duty as a notary public and if he wanted to accommodate a friend who was inside a prison, he could have gone to the latter’s cell since he openly admitted that he has “been in and out of New Bilibid Prisons, not only because [his] office is here only across the Municipal Building of Muntinlupa, Metro Manila but because [he] handled a number of cases involving prisonersand guards of NBP as well as some of its personnels [sic].”

Administratively, as a lawyer commissioned as a notary public, Atty. Icasiano M. dela Rea committed grave misconduct when he agreed to prepare the jurat in the petition in this case in the absence of petitioner Gamido, thereby making it appear that the latter personally signed the certification of the petition and took his oath before him when in truth and in fact the said petitioner did not.

WHEREFORE, for grave misconduct, ATTY. ICASIANO I. DELA REA is hereby FINED in the sum of FIVE THOUSAND PESOS (P5,000.00), without prejudice to criminal prosecution as may be warranted under the circumstances. He is WARNED that the commission of the same or similar acts in the future shall be dealt with more severely.

Dela Cruz v. Zabala, A.C. No. 6294. November 17, 2004; 442 SCRA 407 (2004)

[A.C. No. 6294. November 17, 2004]

ATTY. MINIANO B. DELA CRUZ, complainant, vs. ATTY. ALEJANDRO P.

ZABALA, respondent.

R E S O L U T I O N

QUISUMBING, J.:

In his Letter-Complaint for Disbarment filed before the Committee on BarDiscipline of the Integrated Bar of the Philippines, complainant Atty. MinianoB. Dela Cruz charged respondent, Atty. Alejandro P. Zabala, for violating hisoath as a notary public.

Complainant alleged that respondent notarized with unknown witnesses, afake deed of sale allegedly executed by two dead people, in gross violation ofhis oath as a Commissioned Notary Public in Quezon City.[1]

Complainant averred that he was retained by a certain Demetrio C. Marerolast December 21, 1996, to finance and undertake the filing of a Petition forthe Issuance of a Second Duplicate Original of the Owner’s copy of OriginalCertificate of Title (OCT) No. 4153, in the names of Sps. Pedro Sumulong andCirila Tapales before the Regional Trial Court of Antipolo City, Branch 72. Thecourt issued an Order approving the said petition on March 10, 1997.[2]

On May 20, 1997, complainant purchased the said property from Marero andhad the title transferred to him and his wife. OCT No. 4153 was thencancelled and replaced by Transfer Certificate of Title (TCT) No. 330000.[3]

The next day, complainant requested a certain Mrs. Adoracion Losloso andMr. Nestor Aguirre to register the title in the former’s name at the Assessor’sOffice of Antipolo City. However, they were unable to do so because theproperty was already registered in the name of Antipolo Properties, Inc.,under TCT No. N-107359.[4]

On May 27, 1997, respondent notarized a Deed of Absolute Sale over the landcovered by OCT No. 4153, executed by Cirila Tapales and Pedro Sumulong infavor of the complainant and his wife.[5]

On December 9, 1997, Mr. Marero filed a Complaint for Reconveyance of Titleof the land, subject of the Deed of Sale which was notarized by respondent,with damages against the complainant and his wife. The Deed of Sale wasthe same document Marero used when he filed a complaint for Estafa thruFalsification of Public Document docketed as I.S. No. 98-16357 before theQuezon City Prosecutor’s Office and in a disbarment case docketed as Adm.Case No. 4963 against complainant.[6]

Purportedly, to clear his name, complainant filed this complaint fordisbarment against respondent. According to complainant, respondentnotarized an irregular document where one of the parties to the transactionwas already dead, grossly violating his oath as a notary public.[7]

The IBP then required the respondent to file his answer to the saidallegations.

Respondent, in his Answer alleged that as a notary, he did not have to gobeyond the documents presented to him for notarization. In notarial law, heexplains, the minimum requirements to notarize a document are thepresence of the parties and their presentation of their community taxcertificate. As long as these requirements are met, the documents may benotarized. Furthermore, he adds, when he notarized the Deed of Sale, he hadno way of knowing whether the persons who appeared before him were thereal owners of the land or were merely poseurs.[8]

Thereafter, the parties were ordered to appear before the IBP Commission onBar Discipline on July 31, 2001 and August 21, 2001, and required to submittheir position papers.

The IBP Commission on Bar Discipline, in its Report dated September 29,2003, recommended that respondent be reprimanded for violating Canon 5 ofthe Code of Professional Responsibility.[9] The allegations with respect to theprayer for disbarment were recommended for dismissal for insufficiency ofevidence. The Commissioner held that complainant failed to establish byconvincing proof that respondent had to be disbarred because of his notarialnegligence. The alleged failures of respondent did not indicate a clear intentto engage in unlawful, dishonest, immoral or deceitful conduct, according to

the Commission’s Report.

Noteworthy, however, respondent did not deny that he notarized the citedDeed of Sale under the circumstances alleged by complainant. It appearsthat there was negligence on respondent’s part which, in our view, is quiteserious. Thus, we cannot conclude that he did not violate the Notarial Law,[10] and our rules regarding Notarial Practice.[11] Nor could we agree that,as recommended by the IBP, he should only be reprimanded. At least hiscommission as Notary Public should be revoked and for two years he shouldbe disqualified from being commissioned as such.

The IBP noted that on its face, the Deed of Sale was not executed by thepurported vendee and that only Pedro Sumulong appeared and executed thedeed even though the property was co-owned by Pedro Sumulong and CirilaTapales. In addition, a copy of the title was not attached to the said Deed ofSale when it was presented for notarization. The aforementionedcircumstances should have alerted respondent. Given the ease with whichcommunity tax certificates are obtained these days, respondent should havebeen more vigilant in ascertaining the identity of the persons who appearedbefore him.

We have empathically stressed that notarization is not an empty,meaningless routinary act. It is invested with substantive public interest. Itmust be underscored that the notarization by a notary public converts aprivate document into a public document, making that document admissiblein evidence without further proof of authenticity thereof. A notarial documentis, by law, entitled to full faith and credit upon its face. For this reason, anotary public must observe with utmost care the basic requirements in theperformance of their duties; otherwise, the confidence of the public in theintegrity of this form of conveyance would be undermined.[12]

Section 1 of Public Act No. 2103 provides,

. . .

(a) The acknowledgment shall be made before a notary public or an officer

duly authorized by law of the country to take acknowledgments ofinstruments or documents in the place where the act is done. The notarypublic or the officer taking the acknowledgment shall certify that the personacknowledging the instrument or document is known to him and that he isthe same person who executed it, and acknowledged that the same is hisfree act and deed. The certificate shall be made under his official seal, if heis by law required to keep a seal, and if not, his certificate shall so state.[Emphasis ours.]

A notary public should not notarize a document unless the persons whosigned the same are the very same persons who executed and personallyappeared before him to attest to the contents and the truth of what arestated therein. These acts of the affiants cannot be delegated because whatare stated therein are facts they have personal knowledge of and arepersonally sworn to. Otherwise, their representative’s names should appearin the said documents as the ones who executed the same.[13]

The function of a notary public is, among others, to guard against any illegalor immoral arrangements.[14] By affixing his notarial seal on the instrument,he converted the Deed of Absolute Sale, from a private document into apublic document. In doing so, respondent, in effect, proclaimed to the worldthat (1) all the parties therein personally appeared before him; (2) they are allpersonally known to him; (3) they were the same persons who executed theinstruments; (4) he inquired into the voluntariness of execution of theinstrument; and (5) they acknowledged personally before him that theyvoluntarily and freely executed the same.[15] As a lawyer commissioned tobe a notary public, respondent is mandated to discharge his sacred dutieswith faithful observance and utmost respect for the legal solemnity of an oathin an acknowledgment or jurat.[16] Simply put, such responsibility isincumbent upon him, he must now accept the commensurate consequencesof his professional indiscretion. His act of certifying under oath an irregularDeed of Absolute Sale without ascertaining the identities of the personsexecuting the same constitutes gross negligence in the performance of dutyas a notary public.

WHEREFORE, this Court finds respondent Atty. Alejandro P. Zabala GUILTY ofgross negligence in his conduct as a notary public. His notarial commission, ifstill existing, is hereby REVOKED and he is DISQUALIFIED from beingcommissioned as a notary public for a period of two (2) years. He isDIRECTED to report the date of his receipt of this Resolution to the Court

within five (5) days from such receipt. Further, he is ordered to SHOW CAUSEwhy he should not be subject to disciplinary action as a member of the Bar.

Let copies of this Resolution be furnished to all the courts of the land as wellas the Integrated Bar of the Philippines, and the Office of the Bar Confidant.Let this Resolution be also made of record in the personal files of therespondent.

SO ORDERED.

[G.R. No. 129416. November 25, 2004]

ZENAIDA B. TIGNO, IMELDA B. TIGNO and ARMI B. TIGNO, petitioners,vs. SPOUSES ESTAFINO AQUINO and FLORENTINA AQUINO and theHONORABLE COURT OF APPEALS, respondents.

D E C I S I O N

TINGA, J.:

The controversy in the present petition hinges on the admissibility of a singledocument, a deed of sale involving interest over real property, notarized by aperson of questionable capacity. The assailed ruling of the Court of Appeals,which overturned the findings of fact of the Regional Trial Court, reliedprimarily on the presumption of regularity attaching to notarized documentswith respect to its due execution. We conclude instead that the document hasnot been duly notarized and accordingly reverse the Court of Appeals.

The facts are as follow:

On 11 January 1980, respondent spouses Estafino and Florentina Aquino (the

Aquinos) filed a complaint for enforcement of contract and damages againstIsidro Bustria (Bustria).[1] The complaint sought to enforce an alleged sale byBustria to the Aquinos of a one hundred twenty thousand (120,000) squaremeter fishpond located in Dasci, Pangasinan. The property was not registeredeither under the Land Registration Act or under the Spanish Mortgage Law,though registrable under Act No. 3344.[2] The conveyance was covered by aDeed of Sale dated 2 September 1978.

Eventually, Bustria and the Aquinos entered into a compromise agreement,whereby Bustria agreed to recognize the validity of the sale, and the Aquinosin turn agreed to grant to Bustria the right to repurchase the same propertyafter the lapse of seven (7) years.

Upon submission, the Court of First Instance of Pangasinan, Branch VII,approved and incorporated the compromise agreement in a Decision which itrendered on 7 September 1981.

Bustria died in October of 1986.[3] On 1 December 1989, petitioner ZenaidaB. Tigno (Tigno), in substitution of her deceased father Isidro Bustria,[4]attempted to repurchase the property by filing a Motion for Consignation. Shedeposited the amount of Two Hundred Thirty Thousand Pesos (P200,000.00)with the trial court, now Regional Trial Court (RTC), Branch 55 at Alaminos,Pangasinan. On 18 December 1989, the Aquinos filed an opposition, arguingthat the right to repurchase was not yet demandable and that Tigno hadfailed to make a tender of payment. In an Order dated 10 October 1999, theRTC denied the Motion for Consignation.[5]

In June of 1991, Tigno filed a Motion for a Writ of Execution, which waslikewise opposed by the Aquinos, and denied by the RTC. Then, on 6September 1991, Tigno filed an action for Revival of Judgment,[6] seeking therevival of the decision in Civil Case No. A-1257, so that it could be executedaccordingly.[7] The Aquinos filed an answer, wherein they alleged that Bustriahad sold his right to repurchase the property to them in a deed of sale dated17 October 1985.[8]

Among the witnesses presented by the Aquinos during trial were Jesus DeFrancia (De Francia), the instrumental witness to the deed of sale, and former

Judge Franklin Cario (Judge Cario), who notarized the same. These twowitnesses testified as to the occasion of the execution and signing of thedeed of sale by Bustria. Thereafter, in their Formal Offer of DocumentaryEvidence, the Aquinos offered for admission as their Exhibit No. 8, the deed ofsale (Deed of Sale)[9] purportedly executed by Bustria. The admission of theDeed of Sale was objected to by Tigno on the ground that it was a false andfraudulent document which had not been acknowledged by Bustria as hisown; and that its existence was suspicious, considering that it had beenpreviously unknown, and not even presented by the Aquinos when theyopposed Tignos previous Motion for Consignation.[10]

In an Order dated 6 April 1994, the RTC refused to admit the Deed of Sale inevidence.[11] A Motion for Reconsideration praying for the admission of saidexhibit was denied in an Order dated 27 April 1994.[12]

Then, on 18 August 1994, a Decision was rendered by the RTC in favor ofTigno. The RTC therein expressed doubts as to the authenticity of the Deed ofSale, characterizing the testimonies of De Francia and Cario as conflicting.[13] The RTC likewise observed that nowhere in the alleged deed of sale wasthere any statement that it was acknowledged by Bustria;[14] that it wassuspicious that Bustria was not assisted or represented by his counsel inconnection with the preparation and execution of the deed of sale[15] or thatAquino had raised the matter of the deed of sale in his previous Opposition tothe Motion for Consignation.[16] The RTC then stressed that the previousMotion for Execution lodged by Tigno had to be denied since more than five(5) years had elapsed from the date the judgment in Civil Case No. A-1257had become final and executory; but the judgment could be revived by actionsuch as the instant complaint. Accordingly, the RTC ordered the revival of thejudgment dated 7 September 1981 in Civil Case No. A-1257.[17]

The Aquinos interposed an appeal to the Court of Appeals.[18] In themeantime, the RTC allowed the execution pending appeal of its Decision.[19]On 23 December 1996, the Court of Appeals Tenth Division promulgated aDecision[20] reversing and setting aside the RTC Decision. The appellatecourt ratiocinated that there were no material or substantial inconsistenciesbetween the testimonies of Cario and De Francia that would taint thedocument with doubtful authenticity; that the absence of theacknowledgment and substitution instead of a jurat did not render theinstrument invalid; and that the non-assistance or representation of Bustriaby counsel did not render the document null and ineffective.[21] It was noted

that a notarized document carried in its favor the presumption of regularitywith respect to its due execution, and that there must be clear, convincingand more than merely preponderant evidence to contradict the same.Accordingly, the Court of Appeals held that the RTC erred in refusing to admitthe Deed of Sale, and that the document extinguished the right of Bustriasheirs to repurchase the property.

After the Court of Appeals denied Tignos Motion for Reconsideration,[22] thepresent petition was filed before this Court. Tigno imputes grave abuse ofdiscretion and misappreciation of facts to the Court of Appeals when itadmitted the Deed of Sale. He also argues that the appellate court shouldhave declared the Deed of Sale as a false, fraudulent and unreliabledocument not supported by any consideration at all.

The general thrusts of the arguments posed by Tigno are factually based. Assuch, they could normally lead to the dismissal of this Petition for Review.However, while this Court is not ordinarily a trier of facts,[23] factual reviewmay be warranted in instances when the findings of the trial court and theintermediate appellate court are contrary to each other.[24] Moreover,petitioner raises a substantial argument regarding the capacity of the notarypublic, Judge Cario, to notarize the document. The Court of Appeals wasunfortunately silent on that matter, but this Court will take it up withdefinitiveness.

The notarial certification of the Deed of Sale reads as follows:

ACKNOWLEDGMENT

REPUBLIC OF THE PHILIPPINES)

PROVINCE OF PANGASINAN ) S.S.

MUNICIPALITY OF ALAMINOS )

SUBSCRIBED AND SWORN TO before me this 17th day of October 1985 atAlaminos, Pangasinan both parties known to me to be the same parties whoexecuted the foregoing instrument.

FRANKLIN CARIO

Ex-Officio Notary Public

Judge, M.T.C.

Alaminos, Pangasinan

There are palpable errors in this certification. Most glaringly, the document iscertified by way of a jurat instead of an acknowledgment. A jurat is a distinctcreature from an acknowledgment. An acknowledgment is the act of one whohas executed a deed in going before some competent officer or court anddeclaring it to be his act or deed; while a jurat is that part of an affidavitwhere the officer certifies that the same was sworn before him.[25] UnderSection 127 of the Land Registration Act,[26] which has been replicated inSection 112 of Presidential Decree No. 1529,[27] the Deed of Sale shouldhave been acknowledged before a notary public.[28]

But there is an even more substantial defect in the notarization, one which isdeterminative of this petition. This pertains to the authority of Judge FranklinCario to notarize the Deed of Sale.

It is undisputed that Franklin Cario at the time of the notarization of the Deedof Sale, was a sitting judge of the Metropolitan Trial Court of Alaminos.[29]Petitioners point out, citing Tabao v. Asis,[30] that municipal judges may notundertake the preparation and acknowledgment of private documents,contracts, and other acts of conveyance which bear no relation to theperformance of their functions as judges.[31] In response, respondents claimthat the prohibition imposed on municipal court judges from notarizingdocuments took effect only in December of 1989, or four years after the Deed

of Sale was notarized by Cario.[32]

Respondents contention is erroneous. Municipal Trial Court (MTC) andMunicipal Circuit Trial Court (MCTC) judges are empowered to perform thefunctions of notaries public ex officio under Section 76 of Republic Act No.296, as amended (otherwise known as the Judiciary Act of 1948) and Section242 of the Revised Administrative Code.[33] However, as far back as 1980 inBorre v. Moya,[34] the Court explicitly declared that municipal court judgessuch as Cario may notarize only documents connected with the exercise oftheir official duties.[35] The Deed of Sale was not connected with any officialduties of Judge Cario, and there was no reason for him to notarize it. Ourobservations as to the errant judge in Borre are pertinent in this case,considering that Judge Cario identified himself in the Deed of Sale as Ex-Officio Notary Public, Judge, MTC:

[A notary ex officio] should not compete with private law practitioners orregular notaries in transacting legal conveyancing business.

In the instant case, it was not proper that a city judge should notarizedocuments involving private transactions and sign the document in this wise:"GUMERSINDO ARCILLA, Notary Public Ex-Officio, City Judge" (p. 16, Rollo,Annex D of Complaint). In doing so, he obliterated the distinction between aregular notary and a notary ex officio.[36]

There are possible grounds for leniency in connection with this matter, asSupreme Court Circular No. I-90 permits notaries public ex officio to performany act within the competency of a regular notary public provided thatcertification be made in the notarized documents attesting to the lack of anylawyer or notary public in such municipality or circuit. Indeed, it is only whenthere are no lawyers or notaries public that the exception applies.[37] Thefacts of this case do not warrant a relaxed attitude towards Judge Cariosimproper notarial activity. There was no such certification in the Deed of Sale.Even if one was produced, we would be hard put to accept the veracity of itscontents, considering that Alaminos, Pangasinan, now a city,[38] was eventhen not an isolated backwater town and had its fair share of practicinglawyers.

There may be sufficient ground to call to task Judge Cario, who ceased beinga judge in 1986, for his improper notarial activity. Perhaps though, formalsanction may no longer be appropriate considering Judge Carios advancedage, assuming he is still alive.[39] However, this Decision should again serveas an affirmation of the rule prohibiting municipal judges from notarizingdocuments not connected with the exercise of their official duties, subject tothe exceptions laid down in Circular No. 1-90.

Most crucially for this case, we should deem the Deed of Sale as not havingbeen notarized at all. The validity of a notarial certification necessarilyderives from the authority of the notarial officer. If the notary public does nothave the capacity to notarize a document, but does so anyway, then thedocument should be treated as unnotarized. The rule may strike as ratherharsh, and perhaps may prove to be prejudicial to parties in good faith relyingon the proferred authority of the notary public or the person pretending to beone. Still, to admit otherwise would render merely officious the elaborateprocess devised by this Court in order that a lawyer may receive a notarialcommission. Without such a rule, the notarization of a document by a dulyappointed notary public will have the same legal effect as one accomplishedby a non-lawyer engaged in pretense.

The notarization of a document carries considerable legal effect. Notarizationof a private document converts such document into a public one, and rendersit admissible in court without further proof of its authenticity.[40] Thus,notarization is not an empty routine; to the contrary, it engages publicinterest in a substantial degree and the protection of that interest requirespreventing those who are not qualified or authorized to act as notaries publicfrom imposing upon the public and the courts and administrative officesgenerally.[41]

On the other hand, what then is the effect on the Deed of Sale if it was notnotarized? True enough, from a civil law perspective, the absence ofnotarization of the Deed of Sale would not necessarily invalidate thetransaction evidenced therein. Article 1358 of the Civil Code requires that theform of a contract that transmits or extinguishes real rights over immovableproperty should be in a public document, yet it is also an accepted rule thatthe failure to observe the proper form does not render the transaction invalid.Thus, it has been uniformly held that the form required in Article 1358 is notessential to the validity or enforceability of the transaction, but requiredmerely for convenience.[42] We have even affirmed that a sale of real

property though not consigned in a public instrument or formal writing, isnevertheless valid and binding among the parties, for the time-honored ruleis that even a verbal contract of sale or real estate produces legal effectsbetween the parties.[43]

Still, the Court has to reckon with the implications of the lack of validnotarization of the Deed of Sale from the perspective of the law on evidence.After all, the case rests on the admissibility of the Deed of Sale.

Clearly, the presumption of regularity relied upon by the Court of Appeals nolonger holds true since the Deed of Sale is not a notarized document. Itsproper probative value is governed by the Rules of Court. Section 19, Rule132 states:

Section 19. Classes of documents.For the purpose of their presentation inevidence, documents are either public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereignauthority, official bodies and tribunals, and public officers, whether of thePhilippines, or of a foreign country;

(b) Documents acknowledged before a notary public except last wills andtestaments; and

(c) Public records, kept in the Philippines, of private documents required bylaw to be entered therein.

All other writings are private. (Emphasis supplied.)

The Deed of Sale, invalidly notarized as it was, does not fall under theenumeration of public documents; hence, it must be considered a privatedocument. The nullity of the alleged or attempted notarization performed byJudge Cario is sufficient to exclude the document in question from the class ofpublic documents. Even assuming that the Deed of Sale was validlynotarized, it would still be classified as a private document, since it was notproperly acknowledged, but merely subscribed and sworn to by way of jurat.

Being a private document, the Deed of Sale is now subject to the requirementof proof under Section 20, Rule 132, which states:

Section 20. Proof of private document.Before any private document offeredas authentic is received in evidence, its due execution and authenticity mustbe proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of themaker.

Any other private document need only be identified as that which is claimedto be.

The Deed of Sale was offered in evidence as authentic by the Aquinos, wholikewise insist that its enforceability militates against Tignos claim.Correspondingly, the burden falls upon the Aquinos to prove its authenticityand due execution. The Court of Appeals clearly erred in not appreciating theDeed of Sale as a private document and in applying the presumption ofregularity that attaches only to duly notarized documents, as distinguishedfrom private documents.

Did the RTC err then in refusing to admit the Deed of Sale? We hold that it didnot. Section 20, Rule 132 provides ample discretion on the trier of fact beforeit may choose to receive the private document in evidence. The RTC wisely

refused to admit the Deed of Sale, taking great lengths as it did to explain itsdoubts as to its veracity. The RTC was not convinced of the proffered proof bythe Aquinos, and the exercise of its sound discretion as the primary trier offact warrants due respect.

The most telling observation of the RTC relates to the fact that for the veryfirst time respondents alleged the existence of the Deed of Sale when theyfiled their answer to petitioners current action to revive judgment.[44] Prior tothe initiation of the present action, Tigno had tried to operationalize andimplement the Compromise Agreement through two judicial means:consignation and execution of judgment. The Aquinos duly opposed theseprior attempts of the petitioner to exercise the right to repurchase, but theydid not raise then the claim that such right to repurchase was alreadyextinguished by the Deed of Sale. Tigno attempted to exercise the right torepurchase only a few years after the execution of the Deed of Sale to whichrespondents themselves were signatories. Thus, it is incredulous that theAquinos did not invoke the Deed of Sale when they opposed in courtpetitioners successive attempts at consignation and execution of judgment.The Deed of Sale, if in existence and valid, would have already precludedTignos causes of action for either consignation or execution of judgment. Theonly believable conclusion, as drawn by the RTC, was that the Deed of Salehad yet to be created when petitioner moved in 1990 for consignation andexecution of judgmentan existential anomaly if we were to agree with therespondents that such document had been signed and notarized back in1985.

The dubiousness in origin of the Deed of Sale is not alleviated by the otherobservations of the RTC. It also pointed to certain incredible aspects in theAquinos tale of events. It noted that no receipts were ever presented by therespondents to evidence actual payment of consideration by them to Bustria,despite the allegation of the respondents that the amount was covered byseven (7) receipts.[45] The Aquinos claimed that Bustria kept all the receipts,an assertion which the RTC found as unbelievable, citing ordinary humannature to ask for receipts for significant amounts given and to keep the same.[46] In itself, the absence of receipts, or any proof of consideration, would notbe conclusive since consideration is always presumed. However, given thetotality of the circumstances surrounding this case, the absence of such prooffurther militates against the claims of the Aquinos.

We can appreciate in a similar vein the observation of the Court of Appeals

that Bustria did not bother to seek his lawyers assistance as regards theexecution of the Deed of Sale, considering that the subject property hadpreviously been fiercely litigated. Although the Court of Appeals was correctin ruling that the document would not be rendered null or ineffective due tothe lack of assistance of counsel, the implausibility of the scenario strikes asodd and therefore reinforces the version found by the RTC as credible.

The Court likewise has its own observations on the record that affirm thedoubts raised by the Court of Appeals. Isidro Bustria, who would die in 1986,was already ninety-three (93) years old when he allegedly signed the Deed ofSale in 1985. Still, the Aquinos asserted before the RTC that Bustria traveledunaccompanied from his home in Dasol, Pangasinan, passing through twotowns to Alaminos, to execute the Deed of Sale. Without discrediting theaccomplishments of nonagenarians capable of great physical feats, it shouldbe acknowledged as a matter of general assumption that persons of Bustriasage are typically sedentary and rarely so foolhardy as to insist on travelingsignificant distances alone.

Also of note is the fact that there are glaring differences as to the allegedsignature of Bustria on the Deed of Sale and as it otherwise appears on thejudicial record. Bustrias signature in the 1981 Compromise Agreement isnoticeably shaky which is not surprising, considering that it was subscribedwhen Bustria was eighty-nine (89) years old. However, Bustrias signature onthe Deed of Sale, which if genuine was affixed when he was already ninety-three (93) years old, is remarkably steady in its strokes. There are also otherevident differences between Bustrias signature on the Deed of Sale and onother documents on the record.

Admittedly, these doubts cast above arise in chief from an appreciation ofcircumstantial evidence. These have to be weighed against the findings ofthe Court of Appeals that the fact that Bustria signed the Deed of Sale wasestablished by the respective testimonies of witnesses De Francia and JudgeCario. In its own appreciation of these testimonies, the RTC alluded to notableinconsistencies in their testimonies. As a final measure of analysis, the Courtshall now examine whether the appellate court was in error in reversing theconclusion of the RTC on these testimonies.

The inconsistencies cited by the RTC were that De Francia testified that Judge

Cario himself prepared and typed the Deed of Sale in his office, where thedocument was signed,[47] while Judge Cario testified that he did not type theDeed of Sale since it was already prepared when the parties arrived at hisoffice for the signing.[48] On this point, the Court of Appeals stated with utternonchalance that a perusal of the record revealed no material or substantialinconsistencies between the testimonies of Judge Cario and De Francia.

Strangely, the appellate court made no comment as to the inconsistencypointed out by the RTC as to who prepared the Deed of Sale. If the only pointof consideration was the due execution of the Deed of Sale, then the Court ofAppeals should have properly come out with its finding. Other variancesaside, there are no contradictions in the testimonies of Judge Cario and DeFrancia on the question of whether or not Bustria signed the Deed of Sale.

However, as earlier established, the Deed of Sale is a private document.Thus, not only the due execution of the document must be proven but also itsauthenticity. This factor was not duly considered by the Court of Appeals. Thetestimonies of Judge Cario and De Francia now become material not only toestablish due execution, but also the authenticity of the Deed of Sale. And onthis point, the inconsistencies pointed out by the RTC become crucial.

The matter of authenticity of the Deed of Sale being disputed, the identity ofthe progenitor of this all-important document is a material evidentiary point.It is disconcerting that the very two witnesses of the respondent offered toprove the Deed of Sale, flatly contradict each other on the basis of their ownpersonal and sensory knowledge. Worse, the purported author of the Deed ofSale disavowed having drafted the document, notwithstanding the contrarytestimony grounded on personal knowledge by the documentary witness.

Establishing the identity of the person who wrote the Deed of Sale would notordinarily be necessary to establish the validity of the transaction it covers.However, since it is the authenticity of the document itself that is disputed,then the opposing testimonies on that point by the material witnessesproperly raises questions about the due execution of the document itself. Theinconsistencies in the testimonies of Judge Cario and De Francia areirreconcilable. It is not possible to affirm the testimony of either withoutdenigrating the competence and credibility of the other as a witness. If JudgeCario was truthful in testifying that he did not write the Deed of Sale, then

doubt can be cast as to the reliability of the notarial witness De Francia. Ittakes a leap of imagination, a high level of gumption, and perversedeliberation for one to erroneously assert, under oath and with particularities,that a person drafted a particular document in his presence.

However, if we were to instead believe De Francia, then the integrity of thenotary public, Judge Cario, would be obviously compromised. Assuming thatJudge Cario had indeed authored the Deed of Sale, it would indeed be oddthat he would not remember having written the document himself yetsufficiently recall notarizing the same. If his testimony as to authorship of thedocument is deemed as dubious, then there is all the reason to make asimilar assumption as to his testimony on the notarization of the Deed ofSale.

These inconsistencies are not of consequence because there is need toindubitably establish the author of the Deed of Sale. They are importantbecause they cast doubt on the credibility of those witnesses of the Aquinos,presented as they were to attest to the due execution and authenticity of theDeed of Sale. The Court of Appeals was clearly in error in peremptorilydisregarding this observation of the RTC.

As a result, we are less willing than the Court of Appeals to impute conclusivevalue to the testimonies of de Francia and Judge Cario. The totality of thepicture leads us to agree with the trial court that the Deed of Sale isineluctably dubious in origin and in execution. The Court deems as correct therefusal of the RTC to admit the Deed of Sale, since its due execution andauthenticity have not been proven. The evidence pointing to the non-existence of such a transaction is so clear and convincing that it is sufficienteven to rebut the typical presumption of regularity arising from the dueexecution of notarial documents. However, for the reasons stated earlier, theDeed of Sale is ineluctably an unnotarized document. And the lower court hadmore than sufficient basis to conclude that it is a spurious document.

Since the validity of the Deed of Sale has been successfully assailed, Tignosright to repurchase was not extinguished at the time of the filing of thePetition for revival of judgment, as correctly concluded by the RTC. The Courtof Appeals being in error when it concluded otherwise, the reinstatement ofthe RTC Decision is warranted.

WHEREFORE, the Petition is GRANTED. The assailed Decision dated 23December 1996 and Resolution dated 9 June 1997 of the Court of Appeals inCA-G.R. CV No. 49879 is REVERSED, and the Decision dated 18 August 1994of the Regional Trial Court of Alaminos, Pangasinan, Branch 55, in Civil CaseNo. A-1918 is REINSTATED. Costs against respondents.

SO ORDERED.

GERONIMO C. FUENTES, Complainant vs. JUDGE ROMUALDO G. BUNO,Presiding Judge, Municipal Circuit Trial Court (MCTC), Talibon-Getafe,Bohol,Respondent

A.M. No. MTJ-99-1204, (Formerly OCA IPI No. 97-355-MTJ)

July 28, 2008

D E C I S I O N

LEONARDO-DE CASTRO, J.:

This administrative case against Judge Romualdo G. Buno of the 4THMunicipal Circuit Trial Court (MCTC), Talibon-Getafe, Bohol, stemmed from a

complaint filed by Geronimo C. Fuentes charging him with abuse of discretionand authority and graft and corruption.

In his complaint, Geronimo Fuentes alleged that he is one of the nine (9) heirsof Bernardo Fuentes, their father, who owned an agricultural land located atSan Jose, Talibon, Bohol, and that respondent judge prepared and notarizedan Extra-Judicial Partition with Simultaneous Absolute Deed of Sale of the saidagricultural land, executed by complainants mother Eulalia Credo Vda. deFuentes, widow of Bernardo Fuentes, and Alejandro Fuentes, on his ownbehalf and on behalf of his brothers and sisters, including Geronimo Fuentes,as heirs/vendors and one Ma. Indira A. Auxtero, as vendee; that in theaforesaid document, the aforementioned agricultural land was sold,transferred/conveyed by the heirs/vendors to the vendee despite the fact thatin his Special Power of Attorney (SPA), he merely appointed his brother,Alejandro Fuentes to mortgage said agricultural land but not to partition,much more to sell the same. According to complainant Geronimo Fuentesrespondent judge notarized said document as ex-officio Notary Public,thereby abusing his discretion and authority as well as committing graft andcorruption.

In his 1st Indorsement dated December 2, 1997, the then Court Administratorrequired the respondent to file his comment on the complaint within ten days.In compliance thereto respondent judge submitted his answer, which prayedfor the dismissal of the complaint. He admitted that on December 24, 1996,while he was the Presiding Judge of the MCTC, Talibon-Getafe, stationed atTalibon, Bohol, he notarized an Extra-Judicial Partition of Real Property withSimultaneous Absolute Deed of Sale, described as Document No. 1158, Seriesof 1996. He explained his reasons and related the circumstances surroundingthe case as follows:

1. That in the last week of the month of September, 1996, Mrs. Eulalia Vda.de Fuentes, Alejandro Fuentes together with Mrs. Helen A. Auxtero and MissMa. Indira Auxtero came to my house and requested me to make and preparea document of sale between the Heirs of Bernardo Fuentes and Ma. IndiraAuxtero as Vendee and upon verification of the papers they presented to theundersigned it was found out that the land subject of the sale is a conjugalproperty of the deceased Bernardo Fuentes and Eulalia Credo Vda. deFuentes. Being a conjugal property, the undersigned advised them to securespecial power of attorney for the children of Bernardo Fuentes who are out oftown.

2. On the 20th of December, 1996 Eulalia Vda. de Fuentes and AlejandroFuentes came back to the house bringing a special power of attorneyexecuted by Bonifacio Fuentes, Benjamin Fuentes, Urbano Fuentes, SamuelaFuentes, Rufina Fuentes and Bernardo Fuentes, Jr. carbon copy of the saidSpecial Power of Attorney herewith attached as Annex A of the answer. Allthese special power of attorney empowers Alejandro Fuentes to execute aDeed of Sale of a parcel of land under Transfer Certificate of Title No. 24937registered in the name of Bernardo Fuentes, their deceased father.

Since no special power of attorney was presented to the undersignedexecuted by PO2 Geronimo Fuentes, the undersigned refused to make theirdocument of sale but Eulalia Vda. de Fuentes and Alejandro Fuentes earnestlyrequested the undersigned to make and prepare the necessary documentsaying that the special power of attorney of PO2 Geronimo Fuentes is comingand they are in urgent need of the money and because of their request, theundersigned prepared the document, and Extra-Judicial Partition of RealProperty with Simultaneous Absolute Deed of Sale in favor of Ma. IndiraAuxtero. That PO2 Geronimo Fuentes was included in the Deed of Salebecause of the assurance of Alejandro Fuentes and Eulalia Vda. de Fuentesthat the Special Power of Attorney of PO2 Geronimo Fuentes is coming.

3. That after the necessary document was prepared Eulalia Vda. de Fuentesand Alejandro Fuentes together with the vendee, Ma. Indira Auxtero signedthe document on December 24, 1996 and on that day the said document wasnotarized by the undersigned.

4. That few days after the document was notarized, the undersigned learned

that the Special Power of Attorney executed by PO2 Geronimo Fuentesempowered Alejandro Fuentes only to mortgage the property so Mrs. EulaliaVda. de Fuentes, Alejandro Fuentes and the vendee, Ma. Indira Auxtero werecalled by the undersigned about the Special Power of Attorney executed byPO2 Geronimo Fuentes but Eulalia Fuentes and Alejandro Fuentes explainedto the undersigned that they will be responsible for PO2 Geronimo Fuentesconsidering that the money was already spent by them and the vendee, Ma.Indira Auxtero also assured the undersigned that if PO2 Geronimo Fuentesinsists to take back his share, she is willing and in fact she reserved the shareof Geronimo Fuentes, hence, the transaction was completed.

5. The undersigned is making and notarizing the document outside of officehour cannot be said to have abuse his discretion and authority since he wasearnestly requested by Eulalia Vda. de Fuentes and Alejandro Fuentes toprepare and notarized the document with authority from his brothers andsisters and with respect to Eulalia Vda. de Fuentes, she is selling her share ofthe conjugal property which is one-half (1/2) of the entire parcel of land.

In the aforementioned answer, respondent judge contended that he could notbe charged of graft and corruption, since in a municipality where a notarypublic is unavailable, a municipal judge is allowed to notarize documents ordeeds as ex-officio notary public. To support his claim, he presented twocertifications: one, from Atty. Azucena C. Macalolot, Clerk of Court VI of theRTC, Branch 52, Talibon, Bohol, who certified that according to their recordsand dockets, no petition for commission and/or renewal of commission asnotary public was granted by the said court for calendar year 1996 and noappointment as notary public was issued for that year; and the other, fromMayor Juanario A. Item of Talibon, Bohol who also certified that no notarypublic was staying and residing in the Municipality of Talibon, Bohol duringthe year 1996.

Respondent judge contended that he did nothing wrong in preparing andnotarizing the said document and that he acted in good faith and inobedience to the earnest plea of complainants mother and siblings who werein urgent need of money, and with their assurance that complainants SPA wasforthcoming. In his attempt to explain his lack of malice, respondent judgenarrated that after learning that the SPA only authorized his brother,Alejandro Fuentes to mortgage the property, he summoned the latter, hismother and the buyer of the land. Alejandro then assured him that theywould be responsible to the complainant and that the buyer was willing toreturn complainants share in the property. Respondent further questionedcomplainants sincerity in filing the complaint because the latter allegedlywanted merely the respondent to persuade the buyer to return the wholeproperty to him instead of his share only.

In its Memorandum Report, the OCA recommended that the present case bere-docketed as a regular administrative matter and that respondent be finedin the amount of P10,000.00 for unauthorized notarization of a privatedocument, the same to be deducted from his retirement benefit. The saidOCA recommendation was premised on the lack of authority of respondentjudge to prepare and notarize the document in question, which had no directrelation to the performance of his official functions as a judge.

While Section 76 of Republic Act No. 296,[1] as amended, and Section 242 ofthe Revised Administrative Code[2] authorize MTC and MCTC judges toperform the functions of notaries public ex officio, the Court laid down thescope of said authority in SC Circular No. 1-90. Pertinently, the said Circularreads:

MTC and MCTC judges may act as notaries public ex officio in the notarizationof documents connected only with the exercise of their official functions andduties [Borre v. Mayo, Adm. Matter No. 1765-CFI, October 17, 1980, 100 SCRA314; Penera v. Dalocanog, Adm. Matter No. 2113-MJ, April 22, 1981, 104 SCRA193]. They may not, as notaries public ex officio, undertake the preparationand acknowledgment of private documents, contracts and other acts ofconveyances which bear no direct relation to the performance of theirfunctions as judges. The 1989 Code of Judicial Conduct not only enjoinsjudges to regulate their extra-judicial activities in order to minimize the risk ofconflict with their judicial duties, but also prohibits them from engaging in theprivate practice of law (Canon 5 and Rule 5.07).

However, the Court, taking judicial notice of the fact that there are stillmunicipalities which have neither lawyers nor notaries public, rules that MTCand MCTC judges assigned to municipalities or circuits with no lawyers ornotaries public may, in the capacity as notaries public ex officio, perform anyact within the competency of a regular notary public, provided that: (1) allnotarial fees charged be for the account of the Government and turned overto the municipal treasurer (Lapena, Jr. vs. Marcos, Adm. Matter No. 1969-MJ,June 29, 1982, 114 SCRA 572); and, (2) certification be made in the notarizeddocuments attesting to the lack of any lawyer or notary public in suchmunicipality or circuit.

The above-quoted SC Circular No. 1-90 prohibits judges from undertaking thepreparation and acknowledgment of private documents, contracts and otherdeeds of conveyances which have no direct relation to the discharge of theirofficial functions. In this case, respondent judge admitted that he preparedboth the document itself, entitled Extra-judicial Partition with SimultaneousAbsolute Deed of Sale and the acknowledgment of the said document, whichhad no relation at all to the performance of his function as a judge. Theseacts of respondent judge are clearly proscribed by the aforesaid Circular.

While it may be true that no notary public was available or residing withinrespondent judges territorial jurisdiction, as shown by the certifications issuedby the RTC Clerk of Court and the Municipal Mayor of Talibon, Bohol, SCCircular No. 1-90 specifically requires that a certification attesting to the lackof any lawyer or notary public in the said municipality or circuit be made inthe notarized document. Here, no such certification was made in the Extra-Judicial Partition with Simultaneous Deed of Sale. Respondent judge alsofailed to indicate in his answer as to whether or not any notarial fee wascharged for that transaction, and if so, whether the same was turned over tothe Municipal Treasurer of Talibon, Bohol. Clearly, then, respondent judge,who was the sitting judge of the MCTC, Talibon-Getafe, Bohol, failed to complywith the aforesaid conditions prescribed by SC Circular No. 1-90, even if hecould have acted as notary public ex-officio in the absence of any lawyer ornotary public in the municipality or circuit to which he was assigned.

Whether or not respondent judge truly acted in good faith when he preparedand acknowledged the subject document is beside the point since he failed tostrictly observe the requirements of SC Circular No. 1-90. As noted by thethen Court Administrator, the document involved here is Document No. 1158,which shows that numerous documents were notarized by respondent judgein the year 1996 alone. Respondent judge was silent as to whether hecharged fees when he notarized documents and if so, whether he turned overthe notarial fees to the municipal treasurer. Moreover, contrary to Rule IV,Sec. 6(a) of the Rules on Notarial Practice of 2004,[3] respondent notarizedthe said document without the SPA of the attorney-in-fact of the vendorswhich gave rise to the legal problem between the vendors and the vendeeconcerning the scope of authority of the aforesaid attorney-in-fact. By failingto comply with the conditions set for SC Circular No. 1-90 and violating theprovision of the Rules on Notarial Practice of 2004, respondent judge failed toconduct himself in a manner that is beyond reproach and suspicion. Any hintof impropriety must be avoided at all cost. Judges are enjoined by the Code ofJudicial Conduct to regulate their extra-judicial activities in order to minimizethe risk of conflict with their judicial duties.[4]

Rule 140 of the Rules of Court deals with the administrative sanctionsimposable on erring judges. Violation of Supreme Court rules, directives andcirculars is a Less Serious Charge punishable by suspension from office or afine of more than P10,000.00 but not exceeding P20,000.00. However,respondent judges application for optional retirement had already beenapproved by the Court en banc on March 10, 1998 in Administrative MatterNo. 9449-Ret. and the release of his retirement benefits was allowed providedthat the amount of P20,000.00 was withheld from the said retirementbenefits, pursuant to the Resolution of this Courts Third Division on June 16,1999 in this administrative case, formerly docketed as Administrative MatterOCA IPI No. 97-355-MTJ.

WHEREFORE, respondent Judge ROMUALDO G. BUNO, now retired, of theMunicipal Circuit Trial Court of Talibon-Getafe, Bohol, is found LIABLE forfailure to comply with SC Circular No. 1-90 and the Rules on Notarial Practice.He is hereby ORDERED to pay a FINE of Twelve Thousand Pesos (P12,000.00),to be deducted from the amount withheld from his retirement benefits.

SO ORDERED.

IN THE MATTER OF THE CHARGES A.M. No. 10-7-17-SC OFPLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DELCASTILLO.

October 12, 2010

A.M. No. 10-7-17-SC

DECISION

PER CURIAM:

This case is concerned with charges that, in preparing a decision for theCourt, a designated member plagiarized the works of certain authors andtwisted their meanings to support the decision.

The Background Facts

Petitioners Isabelita C. Vinuya and about 70 other elderly women, allmembers of the Malaya Lolas Organization, filed with the Court in G.R. No.162230 a special civil action of certiorari with application for preliminarymandatory injunction against the Executive Secretary, the Secretary ofForeign Affairs, the Secretary of Justice, and the Office of the SolicitorGeneral.

Petitioners claimed that in destroying villages in the Philippines during WorldWar II, the Japanese army systematically raped them and a number of otherwomen, seizing them and holding them in houses or cells where soldiersrepeatedly ravished and abused them.

Petitioners alleged that they have since 1998 been approaching the ExecutiveDepartment, represented by the respondent public officials, requestingassistance in filing claims against the Japanese military officers whoestablished the comfort women stations. But that Department declined,saying that petitioners individual claims had already been fully satisfiedunder the Peace Treaty between the Philippines and Japan.

Petitioners wanted the Court to render judgment, compelling the ExecutiveDepartment to espouse their claims for official apology and other forms ofreparations against Japan before the International Court of Justice and otherinternational tribunals.

On April 28, 2010, the Court rendered judgment dismissing petitioners action.Justice Mariano C. del Castillo wrote the decision for the Court. The Courtessentially gave two reasons for its decision: it cannot grant the petitionbecause, first, the Executive Department has the exclusive prerogative underthe Constitution and the law to determine whether to espouse petitionersclaim against Japan; and, second, the Philippines is not under any obligationin international law to espouse their claims.

On June 9, 2010, petitioners filed a motion for reconsideration of the Courtsdecision. More than a month later on July 18, 2010, counsel for petitioners,Atty. Herminio Harry Roque, Jr., announced in his online blog that his clientswould file a supplemental petition detailing plagiarism committed by thecourt under the second reason it gave for dismissing the petition and that

these stolen passages were also twisted to support the courts erroneousconclusions that the Filipino comfort women of World War Two have no furtherlegal remedies. The media gave publicity to Atty. Roques announcement.

On July 19, 2010, petitioners filed the supplemental motion forreconsideration that Atty. Roque announced. It accused Justice Del Castillo ofmanifest intellectual theft and outright plagiarism[1] when he wrote thedecision for the Court and of twisting the true intents of the plagiarizedsources to suit the arguments of the assailed Judgment.[2] They chargedJustice Del Castillo of copying without acknowledgement certain passagesfrom three foreign articles:

a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent,Yale Journal of International Law (2009);

b. Breaking the Silence: Rape as an International Crime by Mark Ellis, CaseWestern Reserve Journal of International Law (2006); and

c. Enforcing Erga Omnes Obligations by Christian J. Tams, CambridgeUniversity Press (2005).

Petitioners claim that the integrity of the Courts deliberations in the case hasbeen put into question by Justice Del Castillos fraud. The Court should thus

address and disclose to the public the truth about the manifest intellectualtheft and outright plagiarism[3] that resulted in gross prejudice to thepetitioners.

Because of the publicity that the supplemental motion for reconsiderationgenerated, Justice Del Castillo circulated a letter to his colleagues,subsequently verified, stating that when he wrote the decision for the Courthe had the intent to attribute all sources used in it. He said in the pertinentpart:

It must be emphasized that there was every intention to attribute all sources,whenever due. At no point was there ever any malicious intent to appropriateanothers work as our own. We recall that this ponencia was thrice included inthe Agenda of the Court en banc. It was deliberated upon during the Baguiosession on April 13, 2010, April 20, 2010 and in Manila on April 27, 2010.Each time, suggestions were made which necessitated major revisions in thedraft. Sources were re-studied, discussions modified, passages added ordeleted. The resulting decision comprises 34 pages with 78 footnotes.

x x x x

As regards the claim of the petitioners that the concepts as contained in theabove foreign materials were twisted, the same remains their opinion whichwe do not necessarily share.[4]

On July 27, 2010, the Court En Banc referred the charges against Justice DelCastillo to its Committee on Ethics and Ethical Standards, chaired by theChief Justice, for investigation and recommendation. The Chief Justicedesignated retired Justice Jose C. Vitug to serve as consultant of theCommittee. He graciously accepted.

On August 2, 2010, the Committee directed petitioners to comment on JusticeDel Castillos verified letter. When this was done, it set the matter for hearing.

In the meantime, on July 19, 2010, Evan Criddle wrote on his blog that he andhis co-author Evan Fox-Descent (referred to jointly as Criddle-Descent)learned of alleged plagiarism involving their work but Criddles concern, afterreading the supplemental motion for reconsideration, was the Courtsconclusion that prohibitions against sexual slavery are not jus cogens orinternationally binding norms that treaties cannot diminish.

On July 23, 2010, Dr. Mark Ellis wrote the Court expressing concern that inmentioning his work, the Court may have misread the argument [he] made inthe article and employed them for cross purposes. Dr. Ellis said that he wrotethe article precisely to argue for appropriate legal remedy for victims of warcrimes.

On August 8, 2010, after the referral of the matter to the Committee forinvestigation, the Dean of the University of the Philippines (U.P.) College ofLaw publicized a Statement from his faculty, claiming that the Vinuyadecision was an extraordinary act of injustice and a singularly reprehensibleact of dishonesty and misrepresentation by the Highest Court of the land. Thestatement said that Justice Del Castillo had a deliberate intention toappropriate the original authors work, and that the Courts decision amountedto an act of intellectual fraud by copying works in order to mislead anddeceive.[5]

On August 18, 2010 Mr. Christian J. Tams wrote Chief Justice Renato C. Coronathat, although relevant sentences in the Courts decision were taken from hiswork, he was given generic reference only in the footnote and in connectionwith a citation from another author (Bruno Simma) rather than with respect tothe passages taken from his work. He thought that the form of referencingwas inappropriate. Mr. Tams was also concerned that the decision may haveused his work to support an approach to erga omnes concept (obligationsowed by individual States to the community of nations) that is not consistentwith what he advocated.

On August 26, 2010, the Committee heard the parties submissions in thesummary manner of administrative investigations. Counsels from both sideswere given ample time to address the Committee and submit their evidence.The Committee queried them on these.

Counsels for Justice Del Castillo later asked to be heard with the other partiesnot in attendance so they could make submissions that their client regardedas sensitive and confidential, involving the drafting process that went into themaking of the Courts decision in the Vinuya case. Petitioners counselsvigorously objected and the Committee sustained the objection. Afterconsulting Justice Del Castillo, his counsels requested the Committee to hearthe Justices court researcher, whose name need not be mentioned here,explain the research work that went into the making of the decision in theVinuya case. The Committee granted the request.

The researcher demonstrated by Power Point presentation how the attributionof the lifted passages to the writings of Criddle-Descent and Ellis, found in thebeginning drafts of her report to Justice Del Castillo, were unintentionallydeleted. She tearfully expressed remorse at her grievous mistake and grieffor having caused an enormous amount of suffering for Justice Del Castilloand his family.[6]

On the other hand, addressing the Committee in reaction to the researchersexplanation, counsel for petitioners insisted that lack of intent is not adefense in plagiarism since all that is required is for a writer to acknowledgethat certain words or language in his work were taken from anothers work.Counsel invoked the Courts ruling in University of the Philippines Board ofRegents v. Court of Appeals and Arokiaswamy William Margaret Celine,[7]arguing that standards on plagiarism in the academe should apply with moreforce to the judiciary.

After the hearing, the Committee gave the parties ten days to file theirrespective memoranda. They filed their memoranda in due course.Subsequently after deliberation, the Committee submitted its unanimousfindings and recommendations to the Court.

The Issues

This case presents two issues:

1. Whether or not, in writing the opinion for the Court in the Vinuya case,Justice Del Castillo plagiarized the published works of authors Tams, Criddle-Descent, and Ellis.

2. Whether or not Justice Del Castillo twisted the works of these authors tomake it appear that such works supported the Courts position in the Vinuyadecision.

The Courts Rulings

Because of the pending motion for reconsideration in the Vinuya case, the

Court like its Committee on Ethics and Ethical Standards will purposely avoidtouching the merits of the Courts decision in that case or the soundness orlack of soundness of the position it has so far taken in the same. The Courtwill deal, not with the essential merit or persuasiveness of the foreign authorsworks, but how the decision that Justice Del Castillo wrote for the Courtappropriated parts of those works and for what purpose the decisionemployed the same.

At its most basic, plagiarism means the theft of another persons language,thoughts, or ideas. To plagiarize, as it is commonly understood according toWebster, is to take (ideas, writings, etc.) from (another) and pass them off asones own.[8] The passing off of the work of another as ones own is thus anindispensable element of plagiarism.

The Passages from Tams

Petitioners point out that the Vinuya decision lifted passages from Tams book,Enforcing Erga Omnes Obligations in International Law (2006) and used themin Footnote 69 with what the author thought was a mere generic reference.But, although Tams himself may have believed that the footnoting in this casewas not an appropriate form of referencing,[9] he and petitioners cannotdeny that the decision did attribute the source or sources of such passages.Justice Del Castillo did not pass off Tams work as his own. The Justiceprimarily attributed the ideas embodied in the passages to Bruno Simma,whom Tams himself credited for them. Still, Footnote 69 mentioned, apartfrom Simma, Tams article as another source of those ideas.

The Court believes that whether or not the footnote is sufficiently detailed, soas to satisfy the footnoting standards of counsel for petitioners is not anethical matter but one concerning clarity of writing. The statement See Tams,Enforcing Obligations Erga Omnes in International Law (2005) in the Vinuyadecision is an attribution no matter if Tams thought that it gave himsomewhat less credit than he deserved. Such attribution altogether negatesthe idea that Justice Del Castillo passed off the challenged passages as hisown.

That it would have been better had Justice Del Castillo used the introductoryphrase cited in rather than the phrase See would make a case of mereinadvertent slip in attribution rather than a case of manifest intellectual theftand outright plagiarism. If the Justices citations were imprecise, it would justbe a case of bad footnoting rather than one of theft or deceit. If it wereotherwise, many would be target of abuse for every editorial error, for everymistake in citing pagination, and for every technical detail of form.

The Passages from Ellis

and Criddle-Descent

Petitioners also attack the Courts decision for lifting and using as footnotes,without attribution to the author, passages from the published work of Ellis.The Court made the following statement on page 27 of its decision, markedwith Footnote 65 at the end:

We fully agree that rape, sexual slavery, torture, and sexual violence aremorally reprehensible as well as legally prohibited under contemporaryinternational law. 65 xxx

Footnote 65 appears down the bottom of the page. Since the lengthypassages in that footnote came almost verbatim from Ellis article,[10] suchpassages ought to have been introduced by an acknowledgement that theyare from that article. The footnote could very well have read:

65 In an article, Breaking the Silence: Rape as an International Crime, CaseWestern Reserve Journal of International Law (2006), Mark Ellis said: Theconcept of rape as an international crime is relatively new. This is not to saythat rape has never been historically prohibited, particularly in war. Butmodern-day sensitivity to the crime of rape did not emerge until after WorldWar II. In the Nuremberg Charter, the word rape was not mentioned. Thearticle on crimes against humanity explicitly set forth prohibited acts, butrape was not mentioned by name. (For example, the Treaty of Amity andCommerce between Prussia and the United States provides that in time ofwar all women and children shall not be molested in their persons. The Treatyof Amity and Commerce, Between his Majesty the King of Prussia and theUnited States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 Treaties &Other Int'l Agreements Of The U.S. 78, 85. The 1863 Lieber Instructionsclassified rape as a crime of troop discipline. (Mitchell, The Prohibition of Rapein International Humanitarian Law as a Norm of Jus cogens: Clarifying theDoctrine, 15 Duke J. Comp. Intl. L. 219, 224). It specified rape as a capitalcrime punishable by the death penalty (Id. at 236). The 1907 HagueConvention protected women by requiring the protection of their honour.(Family honour and rights, the lives of persons, and private property, as well

as religious convictions and practice, must be respected. Convention (IV)Respecting the Laws & Customs of War on Land, art. 46, Oct. 18, 1907.General Assembly resolution 95 (I) of December 11, 1946 entitled, Affirmationof the Principles of International Law recognized by the Charter of theNrnberg Tribunal; General Assembly document A/64/Add.1 of 1946; SeeAgreement for the Prosecution and Punishment of the Major War Criminals ofthe European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. Article 6(c)of the Charter established crimes against humanity as the following:

CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement,deportation, and other inhumane acts committed against any civilianpopulation, before or during the war, or persecutions on political, racial orreligious grounds in execution of or in connection with any crime within theJurisdiction of the Tribunal, whether or not in violation of the domestic law ofthe country where perpetrated.

The Nuremberg Judgment did not make any reference to rape and rape wasnot prosecuted. (Judge Gabrielle Kirk McDonald, The International CriminalTribunals Crime and Punishment in the International Arena,7 ILSA J. Intl.Comp. L. 667, 676.) However, International Military Tribunal for the Far Eastprosecuted rape crimes, even though its Statute did not explicitly criminalizerape. The Far East Tribunal held General Iwane Matsui, Commander ShunrokuHata and Foreign Minister Hirota criminally responsible for a series of crimes,including rape, committed by persons under their authority. (The TokyoJudgment: Judgment Of The International Military Tribunal For The Far East445-54 (1977).

The first mention of rape as a specific crime came in December 1945when Control Council Law No. 10 included the term rape in the definition ofcrimes against humanity. Law No. 10, adopted by the four occupying powersin Germany, was devised to establish a uniform basis for prosecuting warcriminals in German courts. (Control Council for Germany, Law No. 10:Punishment of Persons Guilty of War Crimes, Crimes Against Peace andAgainst Humanity, Dec. 20, 1945, 3 Official Gazette Control Council forGermany 50, 53 (1946))

The 1949 Geneva Convention Relative to the Treatment of Prisoners ofWar was the first modern-day international instrument to establish

protections against rape for women. Geneva Convention Relative to theProtection of Civilian Persons in Time of War, Aug. 12, 1949, art. 27, 6 U.S.T.3316, 75 U.N.T.S. 287 (entry into force Oct. 20, 1950) [hereinafter FourthGeneva Convention].Furthermore, the ICC, the ICTY, and the InternationalCriminal Tribunal for Rwanda (ICTR) have significantly advanced the crime ofrape by enabling it to be prosecuted as genocide, a war crime, and a crimeagainst humanity.

But, as it happened, the acknowledgment above or a similar introduction wasmissing from Footnote 65.

Next, petitioners also point out that the following eight sentences and theiraccompanying footnotes appear in text on pages 30-32 of the Vinuyadecision:

xxx In international law, the term jus cogens (literally, compelling law) refersto norms that command peremptory authority, superseding conflictingtreaties and custom. Jus cogens norms are considered peremptory in thesense that they are mandatory, do not admit derogation, and can be modifiedonly by general international norms of equivalent authority.71

Early strains of the jus cogens doctrine have existed since the 1700s,72 butperemptory norms began to attract greater scholarly attention with thepublication of Alfred von Verdross's influential 1937 article, Forbidden Treatiesin International Law.73 The recognition of jus cogens gained even more forcein the 1950s and 1960s with the ILCs preparation of the Vienna Conventionon the Law of Treaties (VCLT).74 Though there was a consensus that certaininternational norms had attained the status of jus cogens,75 the ILC was

unable to reach a consensus on the proper criteria for identifying peremptorynorms.

After an extended debate over these and other theories of jus cogens, the ILCconcluded ruefully in 1963 that there is not as yet any generally acceptedcriterion by which to identify a general rule of international law as having thecharacter of jus cogens.76 In a commentary accompanying the draftconvention, the ILC indicated that the prudent course seems to be to x x xleave the full content of this rule to be worked out in State practice and in thejurisprudence of international tribunals.77 Thus, while the existence of juscogens in international law is undisputed, no consensus exists on itssubstance,77 beyond a tiny core of principles and rules.78

Admittedly, the Vinuya decision lifted the above, including their footnotes,from Criddle-Descents article, A Fiduciary Theory of Jus Cogens.[11] Criddle-Descents footnotes were carried into the Vinuya decisions own footnotes butno attributions were made to the two authors in those footnotes.

The Explanation

Unless amply explained, the above lifting from the works of Ellis and Criddle-

Descent could be construed as plagiarism. But one of Justice Del Castillosresearchers, a court-employed attorney, explained how she accidentallydeleted the attributions, originally planted in the beginning drafts of herreport to him, which report eventually became the working draft of thedecision. She said that, for most parts, she did her research electronically. Forinternational materials, she sourced these mainly from Westlaw, an onlineresearch service for legal and law-related materials to which the Courtsubscribes.

In the old days, the common practice was that after a Justice would haveassigned a case for study and report, the researcher would source hismaterials mostly from available law books and published articles on print.When he found a relevant item in a book, whether for one side of the issue orfor the other, he would place a strip of paper marker on the appropriate page,pencil mark the item, and place the book on his desk where other relevantbooks would have piled up. He would later paraphrase or copy the markedout passages from some of these books as he typed his manuscript on amanual typewriter. This occasion would give him a clear opportunity toattribute the materials used to their authors or sources.

With the advent of computers, however, as Justice Del Castillos researcheralso explained, most legal references, including the collection of decisions ofthe Court, are found in electronic diskettes or in internet websites that offervirtual libraries of books and articles. Here, as the researcher found itemsthat were relevant to her assignment, she downloaded or copied them intoher main manuscript, a smorgasbord plate of materials that she thought shemight need. The researchers technique in this case is not too far differentfrom that employed by a carpenter. The carpenter first gets the pieces oflumber he would need, choosing the kinds and sizes suitable to the object hehas in mind, say a table. When ready, he would measure out the portions heneeds, cut them out of the pieces of lumber he had collected, and constructhis table. He would get rid of the scraps.

Here, Justice Del Castillos researcher did just that. She electronically cutrelevant materials from books and journals in the Westlaw website andpasted these to a main manuscript in her computer that contained the issuesfor discussion in her proposed report to the Justice. She used the MicrosoftWord program.[12] Later, after she decided on the general shape that herreport would take, she began pruning from that manuscript those materialsthat did not fit, changing the positions in the general scheme of those thatremained, and adding and deleting paragraphs, sentences, and words as hercontinuing discussions with Justice Del Castillo, her chief editor, demanded.Parenthetically, this is the standard scheme that computer-literate courtresearchers use everyday in their work.

Justice Del Castillos researcher showed the Committee the early drafts of herreport in the Vinuya case and these included the passages lifted from theseparate articles of Criddle-Descent and of Ellis with proper attributions tothese authors. But, as it happened, in the course of editing and cleaning upher draft, the researcher accidentally deleted the attributions.

First Finding

The Court adopts the Committees finding that the researchers explanationregarding the accidental removal of proper attributions to the three authors iscredible. Given the operational properties of the Microsoft program in use bythe Court, the accidental decapitation of attributions to sources of researchmaterials is not remote.

For most senior lawyers and judges who are not computer literate, a familiarexample similar to the circumstances of the present case would probably helpillustrate the likelihood of such an accident happening. If researcher X, forexample, happens to be interested in the inalienable character of juridicalpersonality in connection with an assignment and if the book of the learnedCivilist, Arturo M. Tolentino, happens to have been published in a website,researcher X would probably show interest in the following passage from thatbook:

xxx Both juridical capacity and capacity to act are not rights, but qualities ofpersons; hence, they cannot be alienated or renounced.15

xxx

_____________________________

15 3 Von Tuhr 296; 1 Valverde 291.

Because the sentence has a footnote mark (#15) that attributes the idea toother sources, it is evident that Tolentino did not originate it. The idea is not aproduct of his intellect. He merely lifted it from Von Tuhr and Valverde, tworeputable foreign authors.

When researcher X copies and pastes the above passage and its footnote intoa manuscript-in-the-making in his computer, the footnote number would,given the computer program in use, automatically change and adjust to thefootnoting sequence of researcher Xs manuscript. Thus, if the precedingfootnote in the manuscript when the passage from Tolentino was pasted on itis 23, Tolentinos footnote would automatically change from the originalFootnote 15 to Footnote 24.

But then, to be of use in his materials-gathering scheme, researcher X wouldhave to tag the Tolentino passage with a short description of its subject foreasy reference. A suitable subject description would be: The inalienablecharacter of juridical personality.23 The footnote mark, 23 From Tolentino,which researcher X attaches to the subject tag, serves as reminder to him toattribute the passage in its final form to Tolentino. After the passage has beentagged, it would now appear like this:

The inalienable character of juridical personality.23

xxx Both juridical capacity and capacity to act are not rights, but qualities ofpersons; hence, they cannot be alienated or renounced.24

xxx

_____________________________

23 From Tolentino.

24 3 Von Tuhr 296; 1 Valverde 291.

The tag is of course temporary and would later have to go. It serves but amarker to help researcher X maneuver the passage into the right spot in hisfinal manuscript.

The mistake of Justice Del Castillos researcher is that, after the Justice haddecided what texts, passages, and citations were to be retained includingthose from Criddle-Descent and Ellis, and when she was already cleaning upher work and deleting all subject tags, she unintentionally deleted thefootnotes that went with such tagswith disastrous effect.

To understand this, in Tolentinos example, the equivalent would be researcherXs removal during cleanup of the tag, The inalienable character of juridicalpersonality.23, by a simple delete operation, and the unintended removal aswell of the accompanying footnote (#23). The erasure of the footnoteeliminates the link between the lifted passage and its source, Tolentinos book.Only the following would remain in the manuscript:

xxx Both juridical capacity and capacity to act are not rights, but qualities ofpersons; hence, they cannot be alienated or renounced.43

_____________________________

43 3 Von Tuhr 296; 1 Valverde 291.

As it happened, the Microsoft word program does not have a function thatraises an alarm when original materials are cut up or pruned. The portionsthat remain simply blend in with the rest of the manuscript, adjusting thefootnote number and removing any clue that what should stick together hadjust been severed.

This was what happened in the attributions to Ellis and Criddle-Descent. Theresearcher deleted the subject tags and, accidentally, their accompanyingfootnotes that served as reminder of the sources of the lifted passages. With119 sources cited in the decision, the loss of the 2 of them was not easilydetectable.

Petitioners point out, however, that Justice Del Castillos verified letter of July22, 2010 is inconsistent with his researchers claim that the omissions weremere errors in attribution. They cite the fact that the Justice did not disclosehis researchers error in that letter despite the latters confession regarding her

mistake even before the Justice sent his letter to the Chief Justice. By denyingplagiarism in his letter, Justice Del Castillo allegedly perjured himself andsought to whitewash the case.[13]

But nothing in the July 22 letter supports the charge of false testimony. JusticeDel Castillo merely explained that there was every intention to attribute allsources whenever due and that there was never any malicious intent toappropriate anothers work as our own, which as it turns out is a truestatement. He recalled how the Court deliberated upon the case more thanonce, prompting major revisions in the draft of the decision. In the process,(s)ources were re-studied, discussions modified, passages added or deleted.Nothing in the letter suggests a cover-up. Indeed, it did not preclude aresearchers inadvertent error.

And it is understandable that Justice Del Castillo did not initially disclose hisresearchers error. He wrote the decision for the Court and was expected totake full responsibility for any lapse arising from its preparation. What ismore, the process of drafting a particular decision for the Court isconfidential, which explained his initial request to be heard on the matterwithout the attendance of the other parties.

Notably, neither Justice Del Castillo nor his researcher had a motive or reasonfor omitting attribution for the lifted passages to Criddle-Descent or to Ellis.The latter authors are highly respected professors of international law. Thelaw journals that published their works have exceptional reputations. It didnot make sense to intentionally omit attribution to these authors when thedecision cites an abundance of other sources. Citing these authors as thesources of the lifted passages would enhance rather than diminish theirinformative value. Both Justice Del Castillo and his researcher gain nothingfrom the omission. Thus, the failure to mention the works of Criddle-Decent

and Ellis was unquestionably due to inadvertence or pure oversight.

Petitioners of course insist that intent is not material in committing plagiarismsince all that a writer has to do, to avoid the charge, is to enclose liftedportions with quotation marks and acknowledge the sources from whichthese were taken.[14] Petitioners point out that the Court should apply to thiscase the ruling in University of the Philippines Board of Regents v. Court ofAppeals and Arokiaswamy William Margaret Celine.[15] They argue thatstandards on plagiarism in the academe should apply with more force to thejudiciary.

But petitioners theory ignores the fact that plagiarism is essentially a form offraud where intent to deceive is inherent. Their theory provides no room forerrors in research, an unrealistic position considering that there is hardly anysubstantial written work in any field of discipline that is free of any mistake.The theory places an automatic universal curse even on errors that, as in thiscase, have reasonable and logical explanations.

Indeed, the 8th edition of Blacks Law Dictionary defines plagiarism as thedeliberate and knowing presentation of another person's original ideas orcreative expressions as one's own.[16] Thus, plagiarism presupposes intentand a deliberate, conscious effort to steal anothers work and pass it off asones own.

Besides, the Court said nothing in U.P. Board of Regents that would indicate

that an intent to pass off anothers work as ones own is not required inplagiarism. The Court merely affirmed the academic freedom of a universityto withdraw a masters degree that a student obtained based on evidencethat she misappropriated the work of others, passing them off as her own.This is not the case here since, as already stated, Justice Del Castillo actuallyimputed the borrowed passages to others.

Second Finding

The Court also adopts the Committees finding that the omission ofattributions to Criddle-Descent and Ellis did not bring about an impressionthat Justice Del Castillo himself created the passages that he lifted from theirpublished articles. That he merely got those passages from others remainsself-evident, despite the accidental deletion. The fact is that he still imputedthe passages to the sources from which Criddle-Descent and Ellis borrowedthem in the first place.

This is best illustrated in the familiar example above. After the deletion of thesubject tag and, accidentally, its footnote which connects to the source, thelifted passage would appear like this:

xxx Both juridical capacity and capacity to act are not rights, but qualities ofpersons; hence, they cannot be alienated or renounced.43

_____________________________

43 3 Von Tuhr 296; 1 Valverde 291.

Although the unintended deletion severed the passages link to Tolentino, thepassage remains to be attributed to Von Tuhr and Valverde, the originalsources that Tolentino himself cites. The text and its footnote referencecancel out any impression that the passage is a creation of researcher X. It isthe same with the passages from Criddle-Descent and Ellis. Because suchpassages remained attributed by the footnotes to the authors originalsources, the omission of attributions to Criddle-Descent and Ellis gave noimpression that the passages were the creations of Justice Del Castillo. Thiswholly negates the idea that he was passing them off as his own thoughts.

True the subject passages in this case were reproduced in the Vinuya decisionwithout placing them in quotation marks. But such passages are much unlikethe creative line from Robert Frost,[17] The woods are lovely, dark, and deep,but I have promises to keep, and miles to go before I sleep, and miles to gobefore I sleep. The passages here consisted of common definitions and terms,abridged history of certain principles of law, and similar frequently repeatedphrases that, in the world of legal literature, already belong to the publicrealm.

To paraphrase Bast and Samuels,[18] while the academic publishing model isbased on the originality of the writers thesis, the judicial system is based onthe doctrine of stare decisis, which encourages courts to cite historical legaldata, precedents, and related studies in their decisions. The judge is notexpected to produce original scholarship in every respect. The strength of adecision lies in the soundness and general acceptance of the precedents andlong held legal opinions it draws from.

Third Finding

Petitioners allege that the decision twisted the passages from Tams, Criddle-Descent, and Ellis. The Court adopts the Committees finding that this is notso. Indeed, this allegation of twisting or misrepresentation remains a mysteryto the Court. To twist means to distort or pervert the meaning of.[19] Forexample, if one lifts the lyrics of the National Anthem, uses it in his work, anddeclares that Jose Palma who wrote it did not love his country, then there istwisting or misrepresentation of what the anthems lyrics said. Here, nothingin the Vinuya decision said or implied that, based on the lifted passages,authors Tams, Criddle-Descent, and Ellis supported the Courts conclusion thatthe Philippines is not under any obligation in international law to espouseVinuya et al.s claims.

The fact is that, first, since the attributions to Criddle-Descent and Ellis wereaccidentally deleted, it is impossible for any person reading the decision toconnect the same to the works of those authors as to conclude that in writingthe decision Justice Del Castillo twisted their intended messages. And,second, the lifted passages provided mere background facts that establishedthe state of international law at various stages of its development. These are

neutral data that could support conflicting theories regarding whether or notthe judiciary has the power today to order the Executive Department to sueanother country or whether the duty to prosecute violators of internationalcrimes has attained the status of jus cogens.

Considering how it was impossible for Justice Del Castillo to have twisted themeaning of the passages he lifted from the works of Tams, Criddle-Descent,and Ellis, the charge of twisting or misrepresentation against him is to say theleast, unkind. To be more accurate, however, the charge is reckless andobtuse.

No Misconduct

On occasions judges and justices have mistakenly cited the wrong sources,failed to use quotation marks, inadvertently omitted necessary informationfrom footnotes or endnotes. But these do not, in every case, amount tomisconduct. Only errors that are tainted with fraud, corruption, or malice aresubject of disciplinary action.[20] This is not the case here. Justice DelCastillos acts or omissions were not shown to have been impelled by any ofsuch disreputable motives.[21] If the rule were otherwise, no judge or justice,however competent, honest, or dedicated he may be, can ever hope to retirefrom the judiciary with an unblemished record.[22]

No Inexcusable Negligence

Finally, petitioners assert that, even if they were to concede that the omissionwas the result of plain error, Justice Del Castillo is nonetheless guilty of grossinexcusable negligence. They point out that he has full control andsupervision over his researcher and should not have surrendered the writingof the decision to the latter.[23]

But this assumes that Justice Del Castillo abdicated the writing of the Vinuyadecision to his researcher, which is contrary to the evidence adduced duringthe hearing. As his researcher testified, the Justice set the direction that theresearch and study were to take by discussing the issues with her, settingforth his position on those issues, and reviewing and commenting on thestudy that she was putting together until he was completely satisfied with it.[24] In every sense, Justice Del Castillo was in control of the writing of thereport to the Court, which report eventually became the basis for thedecision, and determined its final outcome.

Assigning cases for study and research to a court attorney, the equivalent ofa law clerk in the United States Supreme Court, is standard practice in thehigh courts of all nations. This is dictated by necessity. With about 80 to 100cases assigned to a Justice in our Court each month, it would be trulysenseless for him to do all the studies and research, going to the library,searching the internet, checking footnotes, and watching the punctuations. Ifhe does all these by himself, he would have to allocate at least one to twoweeks of work for each case that has been submitted for decision. Thewheels of justice in the Supreme Court will grind to a halt under such aproposition.

What is important is that, in this case, Justice Del Castillo retained controlover the writing of the decision in the Vinuya case without, however, havingto look over his researchers shoulder as she cleaned up her draft report toensure that she hit the right computer keys. The Justices researcher was afterall competent in the field of assignment given her. She finished law from aleading law school, graduated third in her class, served as Editor-in Chief ofher schools Law Journal, and placed fourth in the bar examinations when shetook it. She earned a masters degree in International Law and Human Rightsfrom a prestigious university in the United States under the Global-Hauserprogram, which counsel for petitioners concedes to be one of the top postgraduate programs on International Law in the world. Justice Del Castillo didnot exercise bad judgment in assigning the research work in the Vinuya caseto her.

Can errors in preparing decisions be prevented? Not until computers cease tobe operated by human beings who are vulnerable to human errors. They arehypocrites who believe that the courts should be as error-free as theythemselves are.

Incidentally, in the course of the submission of petitioners exhibits, theCommittee noted that petitioners Exhibit J, the accusing statement of theFaculty of the U.P. College of Law on the allegations of plagiarism andmisinterpretation, was a mere dummy. The whole of the statement wasreproduced but the signatures portion below merely listed the names of 38faculty members, in solid rows, with the letters Sgd or signed printed besidethe names without exception. These included the name of retired SupremeCourt Justice Vicente V. Mendoza, a U.P. professor.

Because the Committee declined to admit a mere dummy of Exhibit J, itdirected Atty. Roque to present the signed copy within three days of theAugust 26 hearing.[25] He complied. As it turned out, the original statementwas signed by only a minority of the faculty members on the list. The set ofsignatories that appeared like solid teeth in the dummy turned out to bebroken teeth in the original. Since only 37 out of the 81 on the list signed thedocument, it does not appear to be a statement of the Faculty but of justsome of its members. And retired Justice V. V. Mendoza did not sign thestatement, contrary to what the dummy represented. The Committeewondered why the Dean submitted a dummy of the signed document whenU.P. has an abundance of copying machines.

Since the above circumstances appear to be related to separate en bancmatter concerning the supposed Faculty statement, there is a need for theCommittee to turn over the signed copy of the same to the en banc for itsconsideration in relation to that matter.

WHEREFORE, in view of all of the above, the Court:

1. DISMISSES for lack of merit petitioner Vinuya, et al.s charges of plagiarism,twisting of cited materials, and gross neglect against Justice Mariano C. delCastillo;

2. DIRECTS the Public Information Office to send copies of this decision toProfessors Evan J. Criddle and Evan Fox-Descent, Dr. Mark Ellis, and ProfessorChristian J. Tams at their known addresses;

3. DIRECTS the Clerk of Court to provide all court attorneys involved in legalresearch and reporting with copies of this decision and to enjoin them toavoid editing errors committed in the Vinuya case while using the existingcomputer program especially when the volume of citations and footnoting issubstantial; and

4. Finally, DIRECTS the Clerk of Court to acquire the necessary software foruse by the Court that can prevent future lapses in citations and attributions.

Further, the Court DIRECTS the Committee on Ethics and Ethical Standards toturn over to the en banc the dummy as well as the signed copy of petitionersExhibit J, entitled Restoring Integrity, a statement by the Faculty of theUniversity of the Philippines College of Law for the en bancs consideration inrelation to the separate pending matter concerning that supposed Facultystatement.

SO ORDERED.