FIRST DIVISION
[A.C. No. 11424. January 25, 2023.][Formerly CBD Case No. 19-5980]
JOSE MARIA M. MIRASOL, complainant, vs.ATTY. CARLO B. GOMEZ, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedJanuary 25, 2023which reads as follows: HTcADC
"A.C. No. 11424 [Formerly CBD Case No. 19-5980] (Jose Maria M. Mirasol v. Atty. Carlo B. Gomez). — At bench is a Verified Disbarment Complaint/Letter-Affidavit 1 dated June 17, 2016 filed by Jose Maria M. Mirasol (Mirasol) before the Office of the Bar Confidant against Atty. Carlo B. Gomez (Atty. Gomez), for violating Sections 20 and 27, Rule 138 of the Rules of Court; Canon 1, Rules 1.01, 1.02, 1.03, and Canon 7 of the Code of Professional Responsibility (CPR); and the Lawyer's Oath for allegedly committing acts outside of his authority as a government official and for recommending the filing of criminal cases against Mirasol.
The Facts
Mirasol is a staunch critic of the leadership at the City Hall of Puerto Princesa, Palawan and an opinion writer of the Palawan Times through his weekly column, Handwriting on the Wall. 2
Mirasol asserted that considering the profits, and at the request of Mr. Jayson Tan Azarraga (Azarraga) of Kingson Construction Supply (KCS), he arranged the supply/sale of sand and gravel with acceptable "p.s.i. rating," and processed by a crushing plant in specified sizes and in large quantities, as required by KUMHO-GS Joint Venture, Project Manager of the Puerto Princesa City International Airport Development Project (Project). KCS supposedly sourced the materials from a legitimate quarry and crushing plant in Barbaza, Antique, and the products were transported by ship to Puerto Princesa City, Palawan. 3
According to Mirasol, on March 13, 2016, a team from the City Mining Regulatory Board (CMRB) and the City Environment and Natural Resources (CENR) Office, acting upon the instruction of Atty. Gomez (as CENR Officer), apprehended and subsequently seized eight dump trucks, one backhoe, one low bed trailer, and the LST Sydney Alyssa III as well as its cargo of imported crushed sand and gravel at the port. Additionally, since the transaction was purportedly illegal due to a defective Ore Transport Permit (Permit), the team prevented the delivery of approximately 1,500 cubic meters of crushed gravel and sand to the Project. The CENR Office deemed the Permit 4 (of the crushed aggregates from Antique) as defective due to the discrepancy in the name of the consignee of the shipment. Instead of KUMHO-GS Joint Venture, the main contractor of the Project, NORSOPHIL, the previous customer of the quarry, was written on the Permit. Thereafter, the Antique CENR Office rectified the error and issued a certification that the shipment originated from a licensed quarry and was authentic except for the said clerical error on the Permit. 5
On the same day, Azarraga of KCS called Mirasol and requested him to proceed to the San Miguel Wharf to monitor and assist in the unloading of the LST Sydney Alyssa and the delivery of its shipment to the Project. 6
Mirasol claimed that Atty. Gomez ignored communications from the Antique CENR Office which explained the clerical error 7 on the Permit. As such, Atty. Gomez committed grave abuse of authority because he harassed and penalized those at the receiving end notwithstanding their lack of participation or role in any anomaly or illegality in the operations at the origin of the transported cargo. 8
After the seizure 9 of the materials, equipment, and the LST Sydney Alyssa III for more than three weeks, which Atty. Gomez ordered on the basis of a CMRB Resolution passed during a meeting 10 (where Azarraga and Mirasol were invited but not allowed to participate in), Atty. Gomez issued another order stating that the seized items would only be released upon payment of a penalty fee amounting to PHP500,000.00, even if the City's Revenue Code 11 does not provide for such penalty. Mirasol averred that copies of the order of payment issued by Atty. Gomez and the official receipt for the payment are not available since Azarraga is reluctant to provide the same as he (Azarraga) feared reprisal from the city government. After the payment of the penalty fee, most of the seized items were released, but the crushed sand and gravel were confiscated and hauled to the City Hall compound. Allegedly, Atty. Gomez ordered the seizure without due process, which caused damage to Mirasol, the consignee, and essentially the whole transaction. 12
Thereafter, Mirasol asserted that on June 6, 2016, he received copies of five baseless criminal complaints 13 filed by the Puerto Princesa City government, represented by Lucilo R. Bayron, the incumbent mayor at the time, as complainant. 14 In any case, the said cases were dismissed for lack of probable cause. 15
Mirasol added that in Republic Act No. 7076 16 or the "People's Small-Scale Mining Act of 1991," the CMRB's authority is limited to small-scale mining resources and activities within its geographical and political jurisdiction. 17 In addition, he insisted that Atty. Gomez was retaliating against him because of his criticisms of the city government, which effectively curtailed his freedom of expression. 18
Moreover, Mirasol disclosed the following: "a) [Atty. Gomez] had a prior disbarment case 19 which led to his suspension to practice law for one (1) year having been declared guilty for violating Canon 16 of the [CPR]; and b) on 14 December 2015, the Civil Service Commission disapproved the appointment 20 of [Atty. Gomez] to his position as City Environment and Natural Resources Officer." 21 Atty. Gomez appealed the said ruling to the Regional Civil Service Commission. Pending resolution, Atty. Gomez continues to serve in that position. 22
For his part, 23 Atty. Gomez asserted that he was appointed as Department Head of the CENR Office of the local government of Puerto Princesa in November 2015. The CENR Office became the Technical Secretariat of the CMRB. The CMRB acts as the regulating body of all matters related to mining operations in Puerto Princesa City which includes transport of mineral products within its territorial jurisdiction. 24 Additionally, the personnel of the CENR Office are deputized to apprehend violators, such as those involving mining, wildlife, and forest matters. In view of this, according to the Revised Implementing Rules and Regulations of Republic Act No. 7942, 25 under Department Administrative Order (DAO) No. 2010-21 dated June 28, 2010, the Mines and Geosciences Bureau (MGB) has the authority under Section 7 (f) to deputize, when necessary, any member or unit of the Philippine National Police and the barangay, duly registered and Department-accredited Non-Governmental Organization (NGO), or any Qualified Person to police all mining activities. 26
Atty. Gomez claimed that on March 13, 2016, Mirasol was caught transporting aggregates without valid permits and delivery receipts. Azarraga was the hauler of the illegally transported aggregates. The CMRB did not administratively fine Mirasol and he did not pay any amount under the prescribed regulations. However, there was a recommendation to file the appropriate cases under the circumstances. 27
Atty. Gomez denied exercising his unbridled discretion when cases were filed against Mirasol. He countered that the majority of the CMRB Members present signed their recommendation and that he is not a voting member of the CMRB. He attached CMRB Resolution 28 No. 121-2016 as proof. 29 The CMRB's action was based on the apprehension and monitoring report 30 conducted by the deputized personnel of the CENR Office. Apparently, Mirasol submitted the following documents upon his apprehension:
a. Ore transport permit with Control No. MGS 2016-21 dated March 8, 2016 issued by Gov. Rhodora J. Cadlao, Governor of Antique to NORSOPHIL METAL CRAFT RESOURCES to transport 'sand and gravel' from the permit operation of LERMA GUNTAN who was [the] supposed permittee to operate 'SILICA MINERALS';
b. Governor's Special Permit 31 for 'silica minerals' given to [permittee] LERMA GUNTAN. 32
Under Sec. 5 (cj) of DAO 2010-21, there is a difference between sand and gravel (quarry resources) and nonmetallic mineral 'silica.' Furthermore, under Sec. 71 of DAO No. 2010-21, implementing Republic Act No. 7942, "ALL" applications for quarry operations should be submitted through the Provincial/City Mining Regulatory Board, and not to the Governor/Mayor alone, which will process the application. The CMRB and the personnel of the CENRO are aware of these directives. 33
The Court then referred 34 the case to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation.
Notably, another set of photocopied documents were submitted before the IBP on March 14, 2016, as follows:
a. Ore transport permit bearing the same Control No. MGS-2016-021 (with notation of a person by the name Leah D. Hiponia) — this time the entries on the following were changed:
i. Environmental fee amount from P1,625.00 to P1,300
ii. Destination: from Palawan to Puerto Princesa
iii. Name of Buyer from NORSIPHIL METAL CRAFT RESOURCES to KUMHO-GS JOINT VENTURE C/O KINGSON CONSTRUCTION SUPPLY
b. Expired commercial delivery receipt of Guntan Construction [S]upply — where it is glaring that the signature under the customer section (front side) when compared to the person who verified (dorsal portion of the same) is clearly signed by one and the same person. The validity date as shown on the stamp [is] dated March 22[,] 2015. 35
Hence, Atty. Gomez insisted that the irregularities committed under the circumstances should be attributed to Mirasol and not to the CENR Office or the CMRB. This is because there is doubt regarding the acquisition of the transport documents, the legal nature of the transported aggregates, the business permit, the trading authority to engage in retail business of mineral business, and the accreditation from pertinent agencies to transport such mineral products, or to engage in such operations. 36
Report and Recommendation of
In a Report and Recommendation 37 dated June 30, 2021, the Investigating Commissioner of the IBP-Commission on Bar Discipline recommended the dismissal of the instant Complaint against Atty. Gomez for lack of merit.
The Investigating Commissioner found that Atty. Gomez is the Secretariat of the CMRB who is entrusted with the administrative duty of only certifying the correctness of CMRB Resolution No. 121-2016 or "A Resolution Recommending to the City Mayor the Filing of Appropriate Case Against Mr. Joey Mirasol for Transporting Sand and Gravel Materials without Valid Permits and Delivery Receipts." The said Resolution was a product of the unanimous decision of all the CMRB Members present in the meeting held on March 18, 2016 at the CENR Office. It was recommended by Chairperson Leonard Caluya, Vice-Chairperson Atty. Elena Vergara-Rodriguez, and Member Michael G. Tan, and was approved by then City Mayor Lucilo R. Bayron. 38
The Investigating Commissioner stressed that Atty. Gomez was not the one who recommended the filing of the appropriate charges against Mirasol but the CMRB. Atty. Gomez is not a voting member and it was the majority of the present CMRB Members who decided on the issue, which was based on the documents and report of the monitoring and apprehending team. 39
Although the apprehending team of the CENR Office stated that Atty. Gomez ordered the apprehension and seizure, the second paragraph of the Report of the monitoring and apprehending team likewise indicated that: "[b]rief background showed that, the team conducted surveillance on the night of March 12, 2016, at around 8:00 on the basis of a concerned citizen report that a barge loaded with sand and gravel coming from the Province of Antique was to arrive that date at designated wharf located at Brgy. Mandaragat, Puerto Princesa City." Thus, this information became the basis for Atty. Gomez's directive. 40
As regards the filing of cases against Mirasol, the Investigating Commissioner found that it was made in the performance of Atty. Gomez's official duties as CENR Officer, which enjoys the presumption of regularity. 41
Hence, Mirasol's submitted evidence and the records failed to show that Atty. Gomez, who held a position in a local government office and in the discharge of his functions, violated the Rules of Court, the CPR, and the Lawyer's Oath. Simply put, Mirasol did not substantiate his allegations which would warrant the imposition of disciplinary action upon Atty. Gomez. 42
In Resolution 43 No. CBD-XXV-2021-10-35 dated October 24, 2021, the IBP-Board of Governors resolved to adopt and approve the findings and recommendation of the Investigating Commissioner to dismiss the Complaint.
Our Ruling
The Court adopts and approves the findings and recommendation of the IBP to dismiss the instant Verified Disbarment Complaint for lack of merit.
It must be stressed that "[u]nlike regular civil and criminal cases, disbarment proceedings are sui generis in character, and are not meant to inflict criminal or civil sanctions. Instead, the main question to be resolved is whether the lawyer involved is still fit to continue to be an officer of the court in the dispensation of justice." 44 In the case herein, however, there is an additional matter to be considered, in particular Atty. Gomez's capacity as a local government official while being concurrently a lawyer. The recent case of Guevarra-Castil v. Trinidad45 is instructive on this subject:
[T]he Court hereby lays the following rules in the filing and handling of complaints against government lawyers, to serve as guidelines for both the bench and the bar:
1. All complaints against and which seek to discipline government lawyers in their respective capacities as members of the Bar must be filed directly before this Court. Conversely, complaints which do not seek to discipline them as members of the Bar shall be dismissed for lack of jurisdiction and referred to the Ombudsman or concerned government agency for appropriate action.
2. In connection with paragraph 1, upon filing, the Court must determine whether the concerned agency, the Ombudsman, or the Court, has jurisdiction over the complaint against the government lawyer. In making such determination, the following must be considered: did the allegations of malfeasance touch upon the errant lawyer's continuing obligations under the CPR and/or the Lawyer's Oath? To put it more simply, the primordial question to be asked in making this determination is this: do the allegations in the complaint, assuming them to be true, make the lawyer unfit to practice the profession?
2a. If the question in paragraph 2 yields a positive answer, the case properly lies before the Court, which shall retain jurisdiction. This is so because again, the power to regulate the practice of law, and discipline members of the bar, belongs to Us. Necessarily, proceedings to be had before this Court should concern these and only these matters. This rule shall hold, even if the complaint also contains allegations of administrative and/or civil service rules infractions. In such situation however, the Court shall limit its ruling only to the matter of the respondent's fitness as a lawyer.
2b. On the other hand, if the question in paragraph 2 yields a negative answer, the Court, for lack of jurisdiction, shall dismiss the case and refer the same to the appropriate government office or the Ombudsman.
3. If multiple complaints have been filed, the process shall be the same.
In the event that paragraph 2b shall apply, and results in a situation where one or more complaint/s have been dismissed and referred to the appropriate government office or the Ombudsman, and one or more complaint/s have been retained by this Court, the cases shall proceed independently from one another.
To reiterate, the fitness to be a lawyer is a continuing requirement, measured against the standards laid out in the Lawyer's Oath and the CPR, and apply to all facets of their life, including private dealings. 46 Needless to say, the same standards of honesty and fairness expected of a lawyer apply to all, whether privately or publicly employed. x x x 47
Given the foregoing pronouncements, and based on the allegations of the instant Complaint, assuming these to be true, the Court may rule on Atty. Gomez's fitness as a lawyer. The main contention of Mirasol is that Atty. Gomez committed acts beyond his authority as CENR Officer. Also, Mirasol alleged that Atty. Gomez imposed unreasonable penalties upon Azarraga and favored another supplier for the Project. These claims, without a doubt, would affect Atty. Gomez's qualifications as a lawyer and not just as a government official.
Nevertheless, upon evaluation, Mirasol did not sufficiently substantiate his allegation that Atty. Gomez imposed a penalty fee which Azarraga had to pay, as he (Mirasol) was not able to present any documentation, save for his claim that Azarraga refused to provide proof regarding the payment. Similarly, Mirasol failed to corroborate his claim that Atty. Gomez manifested partiality in favoring another supplier for the Project. Interestingly, both Mirasol and Atty. Gomez claimed that they have political differences or inclinations. While Mirasol asserted that Atty. Gomez supported a specific political personality, Atty. Gomez averred that Mirasol criticized the local government endlessly. Thus, Mirasol's motive in filing the instant case is tinged with suspicion and doubt as to its veracity.
Moreover, according to Canon 6 of the CPR:
CANON 6 — THESE CANONS SHALL APPLY TO LAWYERS IN GOVERNMENT SERVICE IN THE DISCHARGE OF THEIR OFFICIAL TASKS.
xxx xxx xxx
Rule 6.02 — A lawyer in the government service shall not use his [or her] public position to promote or advance his [or her] private interests, nor allow the latter to interfere with his [or her] public duties.
The instant Complaint unfortunately failed to sufficiently establish that Atty. Gomez utilized his public position for his personal gain. Furthermore, it appeared that Mirasol and Azarraga were the ones involved in a certain form of anomaly given the debatable delivery of materials, and considering the discrepancies in the Permit and other documentation. Yet, Atty. Gomez, in his capacity as CENR Officer, performed his duty in the manner he saw fit at the time, especially when prior surveillance (based on a tip from a concerned citizen) showed that materials will be transported from Antique. In the same way, he explained his role as Secretariat of the CMRB, who did not have voting rights or the authority to unilaterally order the investigation and filing of cases against Mirasol. Instead, he merely certified the correctness of CMRB Resolution No. 121-2016 based on what transpired in the CMRB meeting. Thus, as found by the Investigating Commissioner, Atty. Gomez's actions enjoy the presumption of regularity.
Nevertheless, We note that Atty. Gomez was previously suspended from the practice of law for one year based on A.C. No. 9154 48 for violating Canon 16 of the CPR. However, the case at bench is unrelated to the previous case, which concerned mismanagement of his client's finances. Conversely, the acts complained of in this case pertained to Atty. Gomez's functions as a local government official. Although he is concurrently a member of the Bar, his acts as CENR Officer in this case are presumed to have been performed in the regular course of things, especially when Mirasol's allegations fell short of the proof requirement in administrative cases.
Mirasol has the burden of proof to demonstrate the legitimacy of his allegations. However, he did not prove with substantial evidence 49 that Atty. Gomez acted contrary to law, the Lawyer's Oath, and the CPR, which would merit the imposition of any disciplinary action upon him. Simply put, "[i]n disciplinary cases involving members of the Bar, substantial evidence is necessary to justify the imposition of administrative penalty." 50 Yet, considering Mirasol's deficient accusations, there is no basis to rule that Atty. Gomez committed any of the grounds for administrative action under Section 27, Rule 138 51 of the Rules of Court.
WHEREFORE, the instant Complaint against Atty. Carlo B. Gomez is DISMISSED for lack of merit.
The Letter dated March 1, 2022 of Atty. Avelino V. Sales, Jr., Director for Bar Discipline, is NOTED.
SO ORDERED." Rosario, J., on official leave.
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
By:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1.Rollo, Vol. I, pp. 1-12; CBD Case No. 19-5980.
2.Rollo, Vol. II, p. 556.
3.Id.
4.Rollo, Vol I, p. 244.
5.Rollo, Vol. II, pp. 556-557.
6.Id. at 557.
7.Rollo, Vol. I, pp. 74, 246.
8.Rollo, Vol. II, p. 557.
9.Rollo, Vol. I, pp. 30-31, 36.
10.Id. at 77.
11.Id. at 95-101.
12.Rollo, Vol. I, pp. 138-140; Vol. II, p. 557.
13.Rollo, Vol. I, pp. 103, 105, 106-108, 110, 112-113.
14.Rollo, Vol. II, p. 557.
15.Rollo, Vol. I, pp. 148-149; Vol. II, p. 558.
16. Entitled "AN ACT CREATING A PEOPLE'S SMALL-SCALE MINING PROGRAM AND FOR OTHER PURPOSES." Approved: June 27, 1991.
17.Rollo, Vol. II, p. 558.
18.Id. at 557.
19.Rollo, Vol. I, pp. 120-126.
20.Id. at 209-211. A notation "Experience not met" is written on Atty. Gomez's appointment papers.
21.Rollo, Vol. II, p. 557.
22.Id.
23.Rollo, Vol. I, pp. 229-237.
24.Rollo, Vol. II, p. 559.
25. Entitled "AN ACT INSTITUTING A NEW SYSTEM OF MINERAL RESOURCES EXPLORATION, DEVELOPMENT, UTILIZATION, AND CONSERVATION." Approved: March 3, 1995.
26.Rollo, Vol. II, p. 560.
27.Id.
28.Rollo, Vol. I, pp. 238-239.
29.Rollo, Vol. II, p. 560.
30.Rollo, Vol. I, pp. 240-243.
31.Id. at 245.
32.Id. at 560-561.
33.Rollo, Vol. II, p. 561.
34.Rollo, Vol. I, p. 302.
35.Rollo, Vol. II, p. 561.
36.Id. at 561-562.
37.Id. at 554-565; penned by Commissioner Marian E. Atabug-Francisco.
38.Id. at 563.
39.Id.
40.Id. at 563-564.
41.Id. at 564.
42.Id.
43.Id. at 551-553.
44.Guevarra-Castil v. Trinidad, A.C. No. 10294, July 12, 2022, citing Gonzalez v. Atty. Alcaraz, 534 Phil. 471, 475 (2006).
45.Id.
46.Id., citing In Re: A.M. No. 04-7-373-RTC, 788 Phil. 492, 507 (29, 2016).
47.Id., citing Trovela v. Robles, 803 Phil. 85, 92 (2017).
48.Cerdan v. Atty. Gomez, 684 Phil. 418, 428 (2012).
49. 2019 Amendments to the 1989 Revised Rules on Evidence, Rule 133, Section 6: "That amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion."
50.Partsch v. Vitorillo, A.C. No. 10897, January 4, 2022, citing Spouses Nocuenca v. Bensi, A.C. No. 12609, February 10, 2020.
51. SEC. 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefor. — A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case without authority to do so. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.