Tuesday, April 21, 2009

Impeachable officers

The case of RODANTE D. MARCOLETA vs. RESURRECCION Z. BORRA AND ROMEO A. BRAWNER , A.C. No. 7732, March 30, 2009 involved a complaint for disbarment which was filed by Atty. Rodante D. Marcoleta (complainant) against respondents Commissioners Resurreccion Z. Borra (Borra) and Romeo A. Brawner (Brawner) of the Commission on Elections (Comelec) charging them with violating Canons 1 (1.01, 1.02 and 1.03) and 3 (3.01, 3.02, 3.05 and 3.06) of the Code of Judicial Conduct and Canons 4, 5, 6 and 17 of the Canons of Judicial Ethics. Additionally, complainant charges respondents of violating Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees.

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

With Alagad winning a seat in the House of Representatives, the two protagonists contested the right to represent the party. By Omnibus Resolution of July 18, 2007, the dispute was resolved by the Comelec’s First Division in favor of Osabel. Commissioner Borra wrote the ponencia while Commissioner Brawner concurred. The dispute was elevated to the Comelec En Banc which, by Resolution of November 6, 2007, reversed the First Division Resolution and reinstated the certificate of nomination of complainant’s group. For failing to muster the required majority voting, however, the Comelec ordered the re-hearing of the controversy. Notwithstanding the conduct of a re-hearing, the necessary majority vote could not still be obtained. The Comelec’s First Division’s Omnibus Resolution was eventually affirmed.

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

In his Comment, respondent Borra contended that the Code of Judicial Conduct and Canons of Judicial Ethics could be made to apply to him and his co-respondent, they not being members of the judiciary; and that since they performed quasi-judicial functions as well as administrative duties, they were bound by the Comelec’s own set of internal rules and procedure over and above a Code of Conduct that prescribed the norms and standards of behavior to be observed by the officials and employees of the Comelec, a constitutional body.

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

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

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

At the outset, the Court, guided by its pronouncements in Jarque v. Ombudsman, A.C. No. 4509, December 5, 1995, 250 SCRA xi, In Re: Raul M. Gonzales, A.M. No. 88-4-5433, April 15, 1988, 160 SCRA 771, and Cuenco v. Fernan, A.C. No. 3135, February 17, 1988, 158 SCRA 29, has laid down the rule that an impeachable officer who is a member of the Bar cannot be disbarred without first being impeached. (Sec. 2, Art. 11, 1987 Constitution).

As an impeachable officer who is at the same time a member of the Bar, respondent Borra must first be removed from office via the constitutional route of impeachment before he may be held to answer administratively for his supposed errant resolutions and actions.

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

The Court stated that the New Code of Judicial Conduct for the Philippine Judiciary applied only to courts of law, of which the Comelec was not, hence, sanctions pertaining to violations thereof were made exclusively applicable to judges and justices in the judiciary, not to quasi-judicial officers like the Comelec chairman and members, who have their own codes of conduct to steer them.

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

As for the release of retirement benefits to respondent Borra, there was nothing irregular therewith, the same being in line with Memorandum Circular No. 10 (series of 1995) of the Office of the Ombudsman reading:

x x x a person retiring from the government service, whether optional or compulsory, needs only to present a certification from this Office whether or not he has a pending criminal or administrative case with it. In the event the certification presented states that the prospective retiree has a pending case, the responsibility of determining whether to release his retirement benefits, as well as the imposition of necessary safeguards to ensure restitution thereof in the event the retiree is found guilty, rests upon and shall be left to the sound discretion of the head of the department, office or agency concerned. (Emphasis and underscoring in the original)