Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 89591-96 August 13, 1990

PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE HON. BONIFACIO SANZ MACEDA, Presiding Judge of Branch 12, Regional Trial Court of Antique, and AVELINO T. JAVELLANA, respondents.

The Solicitor General for petitioner.


PADILLA, J.:

In the morning of 11 February 1986, the late ex-Governor of Antique, Evelio Javier, was gunned down in the plaza of San Jose, Antique.

Immediately thereafter, the authorities conducted an investigation, and as a result thereof, a complaint against John Paloy and Vicente Vegafria was filed with the Office of the Provincial Prosecutor.

During the preliminary investigation, private respondent Avelino T. Javellana appeared as counsel for John Paloy and Vicente Vegafria, until Federico Carluto, Jr., executed an affidavit, 1 dated 16 June 1986, and Evelyn Magare and Fritz Xavier their sworn statements, 2 dated 19 February 1986 and 7 March 1986, respectively, implicating private respondent in the killing of the late Evelio Javier.

On 29 October 1986, the then Senior State Prosecutor Tirso D.C. Velasco, now RTC Judge of Quezon City, filed with the RTC of Antique, six (6) separate informations, 3 all dated 13 October 1986, charging private respondent Avelino T. Javellana together with John Paloy, Vicente Vegafria, Eduardo Iran alias "Boy Muslim", alias "Muklo" Rudolfo Pacificador Alias "Ding", Arturo F. Pacificador and several John Does, with the crime of murder, frustrated murder and for four (4) counts of attempted murder. 4

Meanwhile, on 23 September 1986 and 27 October 1986, Romeo Nagales and Jose Delumen executed their respective sworn statements, 5 admitting their participation in the kiling of Evelio Javier, and implicating other persons in the commission of the crime.

On the basis of their sworn statements, the prosecution, through Senior State Prosecutor Aurelio C. Trampe, amended the aforesaid informations by including therein the following persons as accused, namely: Ramon Hortillano alias "Ramie", Henry Salaber alias "Henry", Eleazar Edemne alias "Toto", Arleen Limoso alias "Arleen", Romeo Nagales alias "Reming", Rolando C. Bernardino alias Lando Jose De Lumen alias "Marlon", Jose Delumen alias "Winfield", Oscar Tianzon alias "Oca", alias "Nono", alias Akong alias "Nonoy", alias "Tatang" and alias "Dolfo". 6

On motion of Senior State Prosecutor Aurelio C. Trampe, the said criminal cases were consolidated in Branch 12 of the RTC of Antique, presided over by respondent Judge.

Of the nineteen (19) accused, only six (6) had been apprehended and/or surrendered, namely: John Paloy, Vicente Vegafria Rolando Bernardino, Jesus Garcia y Amorsolo alias "Nono Picoy" Jose Delumen alias "Winfield" and Romeo Nagales alias "Reming". All the others were at large, including herein private respondent Avelino Javellana. 7 Hence, trial proceeded only as against the said six (6) accused.

On 9 May 1989, the prosecution moved to discharge the accused Jose Delumen and Romeo Nagales, claiming that their testimonies were absolutely necessary against accused Rolando Bernardino as well as the other accused, including private respondent who was then at-large.

On 11 May 1989, the court a quo granted the motion to discharge Romeo Nagales but denied it as regards Jose Delumen, the latter having admitted a prior conviction for the crime of robbery.

However, despite the discharge of Rome Nagales, the prosecution rested its case without presenting him his state witness and reserved its right to present him as a witness against the other accused who were then at-large.

On 12 May 1989, private respondent was arrested by the Constabulary Security Group (CSG) in Parañaque, Metro Manila. On 15 May 1989, the Integrated Bar of the Philippines (IBP), Iloilo Chapter, through its President, Atty. J.T. Barrera, enterred its appearance as counsel for private respondent with a motion that the IBP, Iloilo Chapter be allowed to as assume custody of the private respondent as his jailer and/or in the alternative, to confine him at the Military Stockade at Camp Delgado and/or at the Iloilo Provincial Jail. 8

When private respondent was brought before the trial court on 7 June 1989, Atty. J.T. Barrera manifested and moved that his motion of 15 May 1989 be heard. During the hearing, Assistant Provincial Prosecutor John Turalba opposed the motion. The issue was heatedly argued by the prosecution and the defense. Whereupon, private respondent pleaded that he be allowed to approach the bench together with all the counsel, which respondent Judge reluctantly granted. Private respondent informed the court that there exists a real and grave danger to his life if he were to be confined in the Antique Provincial Jail. He then narrated an incident when he, as the then counsel for John Paloy and Vicente Vegafria prior to his inclusion as one of the respondents, was refused the right to visit and confer with his clients by a drunk jail guard at the Antique Provincial Jail; that the said guard was toying with his armalite rifle while standing at the gate of the provincial jail and did not allow him to enter; that said guard aimed and pointed his armalite rifle twice at him; and that because of his complaint, the guard was suspended but has long been back on duty of the provincial jail. After hearing the narration, Assistant Provincial Prosecutor John Turalba withdrew his objection. 9

Hence, on the same date, 7 June 1989, respondent Judge issued an order, 10 the pertinent part of which reads:

. . . , without jurisdiction on the part of Prosecutor John Turalba, accused Javellana is hereby ordered confined at PC, Stockade, Bugante Point San Jose, Antique in the custody of the PC/INP Provincial Commander who is directed to take charge of the custody of said accused and to bring him back to court whenever required.

On 2 August 1989, the Provincial Commander, Col. Teodulo Abayata wrote respondent Judge:

I am in receipt of instruction from CPC to turn over Atty. Avelino Javellana to the Provincial Jail effective immediately and for me to give feedback NLT today 2 August 1989.

Since his custody under the Provincial Commander was through the order of that Honorable Court, request that another order be issued for me to be able to comply (sic) the instructions from my superior officers. 11

On the same date, 2 August 1989, respondent Judge issued an order 12 granting the request of Col. Abayata, and ordered the private respondent to be confined as a detention prisoner at the Binirayan Rehabilitation Center, San Jose, Antique, subject to the conditions set forth therein.

Upon receipt of the order on the same day, private respondent filed an urgent ex-parte motion for reconsideration, 13 alleging that the Binirayan Rehabilitation Center, aside from being a little bit far and unsafe, has conditions which may not work well for his health; that he underwent retrograde operation less than a year ago and up to the present he is still taking medication for maintenance; that he has a history of heart treatment and very often he takes maintenance pills and he is confronted by his unstable blood presure; that the location of the rehabilitation center and the absence of facilities there may cause adverse effects on his health condition; and praying that he be confined in the Provincial Jail of Iloilo where he can be nearer to better hospital facilities.

When the aforesaid motion for private respondent was called for hearing in the afternoon of 2 August 1989, respondent Judge required the presence of Assistant Provincial Prosecutor John Turalba. The latter appeared and reiterated the earlier objection of the Senior State Prosecutor to the confinement of private respondent in any place other than the Provincial Jail of Antique.

After the hearing, respondent Judge issued an order, 14 reconsidering and setting aside the earlier order, and directed that

. . . the accused, should in the meantime, be committed to the Angel Salazar Memorial Hospital and subjected to a physical check-up at the expense of the accused Javellana. The head of the said hospital is directed to submit his report soonest on the physical condition of accused Javellana.

Meantime, while the check-up is being undertaken, the Station Commander of San Jose, Antique is directed to take custody and provide adequate security for accused Javellana in order to prevent his escape and to continue such custody until further orders from the court. . . .

On 3 August 1989, the head of the hospital issued a certification on the result of the physical check-up conducted on private respondent, thus:

As per order of your Honor, dated August 2, 1989, Atty. Avelino T. Javellana was examined by Dr. Felipe Rosendo Muzones and his ECG examination showed that everything is within normal limits. However, Dr. Muzones contends that the same is not the only determinant factor as far as the condition of the heart is concerned. Hence, he recommends that blood chemistry examination is necessary. We are sad to inform your Honor that we do not have necessary chemicals for this type of examination at
present. 15

In view of the aforesaid certification, the private respondent filed on the same day an Urgent Ex-Parte Motion, 16 praying that he be allowed further medical examination at the Iloilo Mission Hospital in Iloilo City under at least two (2) police escorts. When the motion was called in open court in the afternoon, the private respondent and the Assistant Provincial Prosecutor appeared, and both argued for and against the motion. Thereafter, the respondent Judge issued an order, 17 the pertinent part of which reads, as follows:

It is the considered view of the Court that whether the blood chemistry examination is necessary or not, the fact still remains that the examination conducted on the heart of movant is incomplete and the court will not leave to chance the condition of the heart of movant who stands charged of a serious crime in these cases. The Court believes that the best interest of justice may be served should the accused be given time to be subjected to a more complete and exhaustive physical examination particularly his heart condition, especially considering the information given in open court by movant that his brother died at a tender age of thirty-three (33) of coronary thrombosis and their family has a history of heart ailment and according to specialist doctor, movant himself is prone to coronary thrombosis.

xxx xxx xxx

WHEREFORE, in view of all the foregoing, the Station Commander of San Jose, Antique is hereby directed to assign two (2) guards to whom custody of movant Javellana is entrusted by the Court to escort the movant Avelino Javellana to Iloilo Mission Hospital, Iloilo City for a complete medical check-up, particularly on the heart of Mr. Javellana. . . .

However, before private respondent and his two (2) police escorts could leave for Iloilo City, P/Col. Magsinpoc, Station Commander of San Jose, Antique, verbally conveyed to respondent Judge an "unforseen emergency" necessitating the "response of all personnel of his Command" and requesting authority to recall the police escorts. In view thereof, respondent Judge was constrained to issue on the same day, 3 August 1989, another order, 18 granting the request of the Station Commander, and directed the Provincial Probation Officer of Antique to take custody of private respondent and to escort him to Iloilo City for medical check-up and bring him back to court not later than 8:30 A.M. on Monday, 7 August 1989. Thus, the Provincial Probation Officer brought the private respondent to the Iloilo Mission Hospital and left him there for a 3-day medical check-up, and thereafter brought him back to court at 8:30 o'clock in the morning of 7 August 1989.

When the cases were called in the morning of 7 August 1989, Attys. Amelia K. del Rosario, Arturo Alinio and J.T. Barrera entered their appearance as counsel for private respondent, and argued that the custody of private respondent be entrusted to the IBP, Iloilo Chapter, headed by Atty. J.T. Barrera. However, Senior State Prosecutor Aurelio C. Trampe moved that the resolution of the incident be held in abeyance until the hearing, in the afternoon.

On the other hand, Atty. Jose A. Alegario entered his appearance as counsel for the then recently arrested accused Oscar Tianzon, who manifested that his client was ready for arraignment. Accordingly, the said accused was arraigned. He pleaded "not guilty."

Thereafter, the respondent Judge issued an order, 19 terminating the custody of the Provincial Probation Officer, and, in the meantime, gave the custody of private respondent to his lawyers, as officers of the court, ordering the confinement of accused Oscar Tianzon with the Antique Provincial Jail Warden and setting the continuation of the hearing to 8 August 1989.

After the hearing in the afternoon, the respondent Judge issued another order, 20 deputizing private respondent's lawyers as deputies of the court and ordered the confinement of private respondent at the San Jose residence of Atty. Deogracias del Rosario, who happened to be the Clerk of Court of the RTC of Antique.

On 8 August 1989, respondent Judge issued an order, 21 terminating the deputization of private respondent's lawyers and ordered them to turn over the custody of private respondent to the Clerk of Court and Ex-Oficio Provincial Sheriff of the RTC of Antique, Atty. Deogracias del Rosario, directing the latter to hold and detain private respondent in his residence at San Jose, Antique and not to allow him liberty to roam around but to hold him as a detention prisoner thereat.

Meanwhile, on 21 June 1989, Atty. J.T. Barrera filed a motion for admission to bail on behalf of private respondent. 22 On 4 July 1989, Senior State Prosecutor Aurelio Trampe filed his opposition 23 thereto, alleging that private respondent was charged with the crime of murder, frustrated murder and attempted murders and that the evidence of guilt is strong; hence, he is not entitled to bail as a matter of right.

On 26 June 1989, private respondent was arraigned, and thereafter, private respondent's petition for bail was set for hearing on 7, 11 and 28 August 1989 to 1 September 1989, as agreed upon by the prosecution and the
defense. 24

On 7 August 1989, Senior State Prosecutor Aurelio C. Trampe filed a motion 25 dated 3 August 1989 to discharge accused Oscar Tianzon to be utilized as a state witness, alleging that there is an absolute necessity for his testimony against all the accused; that there is no other direct evidence available for the proper prosecution of the offenses except the testimony of said accused, which can be substantially corroborated in its material points by other evidence; that the accused Tianzon does not appear to be the most guilty among the accused, as he acted merely as a lookout and did not actually participate in the assassination of the deceased Evelio Javier, and that he has not been previously convicted of any offense involving moral turpitude. The hearing of the motion was set on 9 August 1989 at 2:00 o'clock in the afternoon.

The scheduled hearing on the aforesaid motion of the prosecution was, however, cancelled and the hearing thereof was reset to 23 August 1989.

At the hearing on 23 August 1989, the prosecution adduced its evidence in support of the motion; however, respondent Judge deferred the resolution of the motion. Thereupon, the prosecution moved that the presentation of its evidence in opposition to private respondent's petition for bail, which was set for hearing on 28 August 1989 and 1 September 1989, be likewise deferred on the ground that accused Oscar Tianzon is a material witness against private respondent and that his testimony is necessary for the purpose of determining private respondent's qualification for bail, i.e., whether the evidence of guilt is strong.

On 28 August 1989, petitioner filed the instant petition for CERTIORARI, to annul and set aside the orders dated 3, 7 and 8 August 1989, claiming that said orders were issued with grave abuse of discretion and PROHIBITION to enjoin the respondent Judge from hearing private respondent's petition for bail until he has resolved the motion to discharge accused Oscar Tianzon, and praying that a writ of preliminary injunction and/or temporary restraining order be issued.

As prayed for, the Court issued on 31 August 1989 a temporary restraining order, 26 ordering the respondent Judge to cease and desist from continuing the hearing on respondent-accused Avelino Javellana's petition for bail until after the respondent Judge has resolved the motion to discharge Oscar Tianzon as state witness.

When private respondent's petition for bail was heard on 28 August 1989, respondent Judge was apprised of the filing of the petition before this Court; hence, the hearing was reset to 1 September 1989.

At the afternoon hearing on 1 September 1989, the prosecution furnished respondent Judge and the defense, copies of the restraining order issued by this Court. The respondent Judge, however, advised the parties that the motion to discharge accused Oscar Tianzon has already been resolved in the morning and that copies of the resolution would be available at any time then. 27 Thereafter, respondent Judge released the resolution, 28 dated 1 September 1989, denying the prosecution's motion to discharge accused Oscar Tianzon to be utilized as a state witness. He ruled, among others, as follows:

The court searched the records for evidence to corroborate the material points in the aforesaid testimony of Tianzon against Javellana but found none to corroborate his statement pointing to Javellana as the gun supplier and the plotter. Neither has the prosecution presented evidence during the hearing to determine Tianzon's qualification tending to corroborate the implication of Javellana nor did the prosecution indicate to the court where such corroboration can be found by the court.

On the contrary, the court notes a clash of the statements of Tianzon in the question and answer No. 45 of his affidavit with the testimonies of the previous witnesses for the prosecution because question and answer No. 45 specifies the names of the passengers of the two (2) nissan jeeps but the same does not mention either accused John Paloy or Vicente Vegafria as one of the passengers of the same jeeps while the testimonies of previous witnesses for the prosecution proclaim that they (Paloy and Vegafria) were among the passengers of the such jeeps who alighted therefrom at the Plaza where the late Governor Evelio Javier was killed.

Not only that. The court finds no absolute necessity to date of Tianzon's testimony because the court earlier on May 11, 1989 dis charged accused Romeo Nagales on motion of the Prosecutor to be utilized as a state witness. But, instead of utilizing Nagales as a state witness, as promised by the Prosecutor, the prosecution did not present him up to this writing but proceeded to formally offer its evidence and thereafter rested its case.

What is more, when the prosecution asked for the discharge of state witness Nagales, it assured the court that:

That in the instant cases, there is an absolute necessity for the testimonies of accused Jose Delumen and Romeo Nagales as against accused Arturo Pacificador, Rodolfo Pacificador, Avelino Javellana, Eduardo Iran, Ramon Hortillano, Henry Salaver, Arlene Limoso, Rolando Bernardino, Oscar Tianzon, Eleazar Edemne alias "Nono", Alias Akong and Alias Tatang, Alias Dolfo, as shown in their sworn statements, copies hereto attached as Annexes "A" and "B" and form part hereof;

That there is no other direct evidence available for the proper prosecution of the offenses committed by the accused named in the next preceding paragraph except the testimonies of said Delumen and Nagales which can be substantially corroborated in its material points by other evidence.

But neither did the prosecutor use state witness Nagales against accused Rolando Bernardino nor did the prosecution use his testimony against Jose Delumen and Jesus Garcia. Consequently, there being no evidence against accused Delumen and Garcia, on motion of their respective counsel, the cases against these two (2) accused were dismissed.

These situation disturbs, let alone alarms, the court in the conduct of the prosecution in these cases. The failure of the prosecution to adduce any evidence against Delumen and Garcia appears to lend credence to the charge of accused Javellana that the prosecution in these cases has adopted a "scandalous dual theory of the prosecution."

Upon receipt of the resolution, the prosecution through Senior State Prosecutor Aurelio C. Trampe, immediately filed a motion to inhibit 29 the respondent Judge, dated 24 August 1989, on the ground of manifest partiality to private respondent, and set it for hearing on 16 October 1989. Thereupon, the prosecution moved to defer the presentation of its evidence in opposition to private respondent's petition for bail. Despite the opposition of the prosecution, the respondent Judge reset the hearing on 14, 15 September 1989 to 4, 5 and 6 October 1989.

Afterwards, the prosecution filed a motion for reconsideration 30 of the order of 1 September 1989 which denied the prosecution's motion to discharge accused Oscar Tianzon.

On 4 September 1989, the Senior State Prosecutor also filed a motion 31 to reset the hearings on 14, 15 September 1989 and 4, 5, 6 October 1989 on the petition for bail, on the grounds that the motion to inhibit should first be resolved and also because of the pendency of the motion for reconsideration of the order of 1 September 1989.

At the hearing on 14 September 1989, only Assistant Provincial Prosecutor John Turalba appeared for the prosecution. He manifested that he was appearing only to reiterate the Senior State Prosecutor's motion for deferment of the scheduled hearings on private respondent's petition for bail. Private respondent opposed the motion. The respondent Judge denied the motion, and directed the prosecution to present its evidence in opposition to the private respondent's petition for bail. The Assistant Provincial Prosecutor moved for reconsideration, claiming that his position is subservient to that of the Senior State Prosecutor who is the duly designated principal prosecutor and as a matter of conviction, he cannot proceed with the trial as well as with the subsequent trials which were covered by the motion of 4 September 1989, and that, moreover, to proceed would render moot and academic the petition for certiorari before this Court. Respondent Judge denied the motion for reconsideration, and, again, directed the prosecution to present its evidence. At this juncture, the Assistant Provincial Prosecutor manifested that he was not participating in the proceedings and begged to be allowed to leave the courtroom, which the respondent Judge refused.

Nevertheless, Assistant Provincial Prosecutor John Turalba walked out and, while walking towards the door, respondent Judge ordered the Sheriff to arrest him. Thereafter, respondent Judge issued an order finding Assistant Provincial Prosecutor John Turalba in contempt of court; declaring the prosecution to have waived its right to present evidence in opposition to private respondent's petition for bail; and considering the said petition for bail submitted for resolution. 32 The respondent Judge imposed upon the Assistant Provincial Prosecutor the penalty of ten (10) days imprisonment. 33

Hence, the petitioner filed with this Court a Supplemental Petition to annul and set aside the orders of 1 September 1989 as well as the order of 14 September 1989; and to inhibit respondent Judge from further taking cognizance of Criminal Cases Nos. 3350 to 3355; and praying that a writ of preliminary mandatory injunction be issued directing respondent Judge to promptly order the release of Assistant Provincial Prosecutor John Turalba from custody on the cognizance of the Provincial Prosecutor.

As prayed for, the Court issued on 22 September 1989 a writ of preliminary mandatory injunction. 34 However, when the respondent Judge received it on 26 September 1989, Assistant Provincial Prosecutor John Turalba had already been released on 25 September 1989 having served his sentence.

Petitioner contends that the respondent Judge committed a grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the following orders, to wit:

(a) the order of 3 August 1989, placing custody of private respondent with the Antique Provincial Probation Officer;

(b) the order of 7 August 1989, transferring the custody of private respondent to his own lawyers;

(c) the Order of 8 August 1989, entrusting the custody of private respondent with the Clerk of Court and ex-oficio Provincial Sheriff, Deogracias del Rosario; and

(d) the Order of 1 September 1989, which denied the prosecution's motion to discharge Oscar Tianzon to be utilized as a state witness.

Petitioner further contends that respondent Judge committed a grave abuse of discretion amounting to lack or excess of jurisdiction when he insisted on continuously hearing private respondent's petition for bail and in ordering the arrest and commitment of Assistant Provincial Prosecutor John Turalba in the Provincial Jail.

It has been repeatedly held that there is grave abuse of discretion justifying the issuance of a writ of certiorari where there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction; where the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility amounting to an evasion of positive duty or to a virtual refusal to perform the duty enjoined, or to act at all in contemplation of law. 35

In claiming that respondent Judge committed grave abuse of discretion in issuing the orders of 3 August 1989, 7 August 1989 and 8 August 1989, petitioner argues that there was no compelling reason for the respondent Judge to order, with undue haste, the medical "check up" of private respondent at the Iloilo Mission Center notwithstanding the absence of any police escort or other law enforcer to ensure that private respondent would not take flight as he had previously done; that while all the other accused were confined in the Provincial Jail of Antique, the respondent Judge merely "entrusted" the custody of private respondent to his lawyers, and then to the Clerk of Court of the RTC of Antique, who is the son of one of private respondent's lawyers; and that respondent Judge has not advanced a valid and legal rationale for the "accommodations" afforded private respondent who, in law, occupies no better position and no preferential rights over those of his co-accused.

The respondent Judge, however, has, to our mind, sufficiently explained in the order of 7 August 1989 the reasons behind the issuance of the aforesaid orders. He said:

The Court is aware of certain reasons why accused Javellana should not be placed in the Provincial Jail. This was the subject of a discussion in open court before the Presiding Judge of this court between the lawyers of Javellana and Javellana, himself and Asst. Provincial Prosecutor John I-C. Turalba who, after hearing the particular reason given by Javellana withdrew his opposition to the placing of Javellana other than in the Provincial Jail of Antique and acceded that custody of Javellana be placed at the hands of the Provincial Commander of Antique.

Recently, particulary on August 2, 1989 as well as on August 3, 1989, the court had difficulty in securing the safety of accused Javellana. The court was left with no other choice but to entrust his custody to the Provincial Probation Officer to escort him to Iloilo City for a medical check-up. It is the perception of the court that there are movements going ground, by whom is unknown yet to the court, to compel the incarceration of accused Javellana in the Provincial Jail. The court abhors this situation and the court will not be intimidated by anyone. It is the perception of this court that even its lawful orders have somehow been subverted. The court's perception of the circumstances presently obtaining on the custody and place of detention of Javellana is a hot agenda and of grave importance, particularly his safety and well being during detention in order that the court can try him on the charges against him.

After serious deliberation, it is the considered view of the court that his detention be placed somewhere else. The court hereby appoints Attys. Del Rosario, Barrera and Alinio as deputies of the court and as such to take custody of accused Javellana meantime that the motion to fix bail is going on and for them to bring the accused to court whenever his presence is needed.

As earlier noted, the court perceives a movement to compel detention of the accused in the Provincial Jail of Antique. This disturbs the court. This even lends credence to the information by Javellana that there is indeed danger to his life if he is placed in the Provincial Jail of Antique. This perception of the court is premised on what appears to be a subversion of the order of the court placing custody of accused Javellana with the Provincial Commander of Antique. The court, however, allowed, on motion of the Provincial Commander, that Javellana be transferred to the Binirayan Rehabilitation Center. But, on motion of Javellana for reasons of health, as the same center is too far away and no adequate (sic) transport facilities at certain time of the day and night are available to convey accused should an emergency occur, accused was ordered confined at the Angel Salazar Memorial Hospital in San Jose, Antique for check-up. Because of the incomplete results of the examination, order was issued for his complete check-up in a hospital in Iloilo. The court ordered the Station Commander of San Jose, Antique to provide police escorts and security to prevent escape of accused in conducting check-up. Before the accused and his escorts could depart, on August 3, 1989 for Iloilo City, the INP Station Commander of San Jose begged the Presiding Judge of this Court to allow him to recall the security personnel he has assigned and ordered to conduct accused Javellana to Iloilo City. It left the court with no choice and no enforcers. The court, however, had to be assured on the physical condition of accused Javellana that he will be able to face trial against him. Accordingly, the court ordered the Provincial Probation Officer, to whom the custody of accused Javellana was entrusted, to escort the latter to Iloilo City for the medical check-up. The Probation Officer earlier this morning manifested that there was opportunity for accused Javellana to escape but despite such opportunity he came back to court today to face the trial against him. This, to the mind of the court is to be considered in his favor.

The aforesaid movements directed to compel the court to place Javellana in the Provincial Jail, is (sic) to the mind of the court, as (sic) indication that should (sic) be place there, something may happen to him and this court will not allow that thing to happen. And as it is the considered view of the court that justice maybe better served to deputize, as the lawyers of accused Javellana have been deputized, as deputies of the court. As such they are now drawn from the status of private individuals but are now the deputies of the court. In the matter of facilities, accused Javellana is to be confined at the San Jose residence of Atty. Deogracias Del Rosario, the son of Atty. Amelia del Rosario who happens to be the Clerk of Court of the Regional Trial Court of Antique.

There may be truth to the Prosecutor's contention that there will be nothing to prevent the other accused from following suit in asking that their custody likewise (sic) be transferred to their respective lawyers.

But, such is only to request. The grant or denial thereof is a matter altogether different.

In the present incident it is the findings (sic) of the court that indeed the life of Javellana will be imperilled if confined elsewhere other than the place above directed.

Considering the foregoing, the Court finds and so holds that respondent Judge did not commit grave abuse of discretion, i.e., that he did not act "arbitrarily", "capriciously" or "despotically" amounting to lack or excess of jurisdiction in issuing the questioned orders of 3, 7 and 8 August 1989.

Coming now to the 1 September 1989 order of respondent Judge, denying the prosecution's motion to discharge accused Oscar Tianzon, the Court reiterates the rule that, for a writ of certiorari to issue, it must not only be shown that the board, tribunal or officer acted without jurisdiction, or with grave abuse of discretion, but also that there is no appeal or other plain, speedy and adequate remedy in the ordinary course of law. 36 Thus, before filing a petition for certiorari in a higher court, the attention of the lower court should generally be first called to its supposed error and its correction should be sought. The reason for the rule is that issues which the lower courts are bound to decide should not summarily be taken from them and submitted to an appellate court without first giving such lower courts the opportunity to dispose of the same with due deliberation. 37 In other words, all available remedies in the lower court must first be exhausted before filing a petition for certiorari in the higher courts.

In the case at bar, the petitioner had filed a motion for reconsideration of the order of 1 September 1989 which is still pending resolution by respondent Judge. A petition for certiorari may not be granted where there is an appeal or other adequate remedy, like a motion for reconsideration, which is still pending in the court below, 38 as in the present case.

The Court, however, holds that respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when he insisted in continuously hearing private respondent's petition for bail and in ordering the arrest and commitment of the Assistant Provincial Prosecutor.

It is well to recall that in the restraining order issued on 31 August 1989, this Court ordered the respondent Judge to cease and desist from continuing the hearing on private respondent's petition for bail until after he had resolved the motion for discharge of Oscar Tianzon as state witness. Although the aforesaid motion had already been denied in the order of 1 September 1989, nevertheless, the prosecution had filed a motion to reconsider the said order which is still pending resolution. Hence, the said motion has not yet been resolved with finality. When respondent Judge, therefore, denied the prosecution's motion for deferment of the scheduled hearings on private respondent's petition for bail and in proceeding to hear the said motion, by ordering the prosecution to present its evidence which precipitated the walk-out of the Assistant Provincial Prosecutor and his consequent arrest and commitment to the Provincial Jail he (respondent judge) was acting in violation of the restraining order issued by this Court. Had the respondent Judge granted the prosecution's motion for deferment, or at least, cancelled the hearings on 14 and 15 September 1989, and instead, resolved the prosecution's motion for reconsideration of the order of 1 September 1989, this unfortunate incident could have been avoided.

Although the matter of adjournment and postponement of trials is within the sound discretion of the court, such discretion should always be predicated on the consideration that more than the mere convenience of the courts or of the parties in the case, the ends of justice and fairness should be served thereby. 39 After all, postponements and continuances are part and parcel of our procedural system of dispensing justice. 40

Besides, contempt of court presupposes a contumacious attitude, a flouting or arrogant belligerence, a defiance of the court. 41 And, while courts are inherently empowered to punish for contempt to the end that they may enforce their authority, preserve their integrity, maintain their dignity, and insure the effectiveness of the administration of justice, 42 nevertheless, such power should be exercised on the preservative and not on the vindictive principle, for the power to punish for contempt, being drastic and extraordinary in its nature, should not be resorted to unless necessary in the interest of justicen 43

A perusal of the transcript of the hearing held on 14 September 1989 shows that Assistant Provincial Prosecutor John Turalba had not made any statement that could be considered as "contumacious" or an affront to the dignity of the court. And, while the act of Assistant Provincial Prosecutor Turalba of "walking out" does not meet our approval as he should have stayed after the respondent Judge had denied his motion for permission to leave the courtroom yet, the respondent Judge, in ordering the incarceration of Assistant Provincial Prosecutor Turalba, acted beyond the permissible limits of his power to punish for contempt.

And now to the question on whether or not respondent Judge should be disqualified from further hearing Crim. Cases Nos. 3350-3355, Section 1, Rule 137 of the Rules of Court provides:

SECTION 1. Disqualification of judges. No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the records.

A judge, may in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.

In the case at bar, the reason relied upon for the inhibition or disqualification of respondent Judge, i.e. manifest partiality to private respondent, is not based on any of the grounds enumerated in the first paragraph of Section 1, Rule 137 which per se disqualifies a judge from sitting in a case, but on the second paragraph thereof. The settled rule is that the judge is left to decide for himself whether he will desist, for just or valid reasons, from sitting in a case. Respondent Judge has not as yet decided whether or not he will inhibit himself from further hearing Criminal Cases Nos. 3350-3355 in the face of the prosecution's motion to disqualify or inhibit him. It would be premature for the Court at this stage to rule on the matter.

WHEREFORE, the petition for certiorari is GRANTED insofar as the order of 14 September 1989 is concerned, and the said order is hereby ANNULLED and SET ASIDE. Without costs.

SO ORDERED.

Melencio-Herrera (Chairman), Paras and Regalado, JJ., concur.

Sarmiento, J., is on leave.

 

Footnotes

1 Rollo, p. 285.

2 Id., pp. 286, 288.

3 Id., pp. 180, 206, 209, 212, 215 and 218.

4 The said informations were docketed in the RTC of Antique as Criminal Case Nos. 3350, 3351 and 3352-3355.

5 Rollo, pp. 322, 327.

6 Id., pp. 23, 26, 29, 32, 35 and 38.

7 In his comment on the petition, private respondent claims that at the time of the filing of the original informations on 29 October 1 986, he was in Metro Manila, and upon learning of the filing of the said informations, he filed with the Department of Justice, a petition for review which was resolved against him on 10 July 1987: that on 20 July 1987. the "Philippine Daily Star" carried a news item on its front page written by reporter Renato Reyes, which states among others that Sr. State Prosecutor Aurelio Trampe recommended to Justice Secretary Sedfrey Ordoñez the dropping of the charges against him. Believing that something was wrong somewhere, he decided never to surrender and opted to be a fugitive from injustice (Rollo, pp. 169-170, 183).

8 Rollo, p. 184.

9 Rollo, pp. 171-172.

10 Id., P. 247.

11 Id., p. 187.

12 Id., p. 188.

13 Id.,. p. 190.

14 Rollo, p. 192.

15 Id., p. 4.

16 Rollo, p. 194.

17 Id., p. 44.

18 Rollo, p. 200.

19 Id., p. 42.

20 Rollo, p. 249.

21 Id., p. 22.

22 Id., p. 172.

23 Id., p. 229.

24 Rollo, pp. 172, 178, 262.

25 Id., p. 249.

26 Rollo, p. 51.

27 Rollo, pp. 238, 276, 358,

28 Id., p. 87.

29 Id., p. 96.

30 Rollo, p. 108,

31 Id., p. 114.

32 T.s.n., 14 September 1989, Rollo, pp. 118-119, 122-125, 145150.

33 Rollo, p. 376.

34 Id., p. 156.

35 People vs. Marave, L-19023, 31 July 1964, 11 SCRA 618, and cases therein cited.

36 Carandang vs. Cabatuando L-25384, 26 October 1973, 53 SCRA 383.

37 Belisle Investment & Finance Co., Inc. v. State Investment House, G.R. No. 71917, 30 June 1987,151 SCRA 630.

38 De Galasison vs. Hon. Manolo L. Madella, G.R. No. L-24584, 30 October 1975, 67 SCRA 478.

39 Limon vs. Candido, L-22418, 18 April 1969, 27 SCRA 116.

40 Rexwell Corp. v. Canlas, L-1 6746, 30 December 1961.

41 Delgra Jr. v. Gonzales, L-24981, 30 January 1970, 31 SCRA 237.

42 Commissioner of Immigration vs. Cloribel, L-24139, 31 August 1967, 20 SCRA 1241. Austria vs. Masaquel, L-22536.

43 August 1967, 20 SCRA 1247.


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