1/12/2020 A.M. No. R-705-RTJ August 23, 1989 - LIGAYA GONZALES-AUSTRIA, ET AL. v. EMMANUEL M. ABAYA, ET AL.

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Philippine Supreme Court Jurisprudence > Year 1989 > August 1989 Decisions > A.M. No. R-705-RTJ August 23,
1989 - LIGAYA GONZALES-AUSTRIA, ET AL. v. EMMANUEL M. ABAYA, ET AL.:

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EN BANC

[A.M. No. R-705-RTJ. August 23, 1989.]

LIGAYA GONZALES-AUSTRIA, LEONILA FUERTES and EDGARDO SERVANDO, Complainants, v.

JUDGE EMMANUEL M. ABAYA, RTC, Br. 51, Puerto Princesa City and ANNABELLE CARDENAS,
Respondents.

[A.M. No. R-698-P. August 23, 1989.]

JUDGE EMMANUEL M. ABAYA, Complainant, v. LIGAYA GONZALES-AUSTRIA, Branch Clerk of

Court, RTC, Br. 52, Puerto Princesa City, Respondent.

[A.C. No. 2909. August 23, 1989.]

JUDGE EMMANUEL M. ABAYA, Complainant, v. LIGAYA GONZALES-AUSTRIA, Branch Clerk of

Court, RTC, Br. 52, Puerto Princesa City, Respondent.

SYLLABUS

1. LEGAL AND JUDICIAL ETHICS; JUDGES; ESTAFA THRU FALSIFICATION OF PUBLIC OR OFFICIAL
DOCUMENT; CASE AT BAR. — We find the charges against Judge Abaya and Annabelle Cardenas to be
supported by substantial evidence. Especially damaging evidence sufficient to support complainants’
theory that Judge Abaya appropriated the money for himself.
DebtKollect Company, Inc.
2. ID.; ID.; GROSS DISHONESTY AND CORRUPTION; ABSENCE OF IMPROPER MOTIVE OF COMPLAINANT
IN IMPUTING CHARGES. — We quote with approval Justice Herrera’s perceptive reasons for giving full
faith and credence to Mrs. Fuertes’ testimony: "We find no improper motive as to why Mrs. Fuertes, a
school teacher, would impute such a serious offense against a judge unless it be the truth. Mrs. Fuertes
is not a disgruntled litigant. Judge Abaya having denied the petition for bail of the suspected killer of Mrs.
Fuertes’ son, she should, under normal circumstances be grateful to the Judge. Yet she charged him with
a serious offense, and travelled all the way from Palawan to Manila to testify against the Judge. Under
the circumstances, We cannot accept Judge Abaya’s contention that Mrs. Fuertes perjured herself just to
accommodate the vengeance-ful ire of Atty. Austria against Judge Abaya. That would be contrary to the
ordinary promptings of men.

3. ID.; ID.; ILLEGAL EXACTION; CHARGE SO DEMEANING TO AN RTC JUDGE THAT IT REQUIRES MORE
THAN A BARE ALLEGATION TO SUSTAIN IT. — While the investigating officer, Justice Herrera observed
that both Servando and Jamora "testified in a natural and straightforward, albeit in an angry manner
without attempting to conceal their contempt for Judge Abaya," he concluded that "the evidence in this
regard would be unable to withstand judicial scrutiny for want of ample corroboration. It would simply be
the word of one against a judge." We are in accord with this observation, for indeed, the charge if true is
so demeaning to an RTC judge that it requires more than a bare allegation to sustain it. In this regard,
we give respondent Judge the benefit of the doubt.

ChanRobles Intellectual Property 4. ID.; ID.; PURPOSE OF EXISTENCE OF OFFICE. — The office of a judge exists for one solemn end — to
Division promote justice by administering it fairly and impartially.

5. ID.; ID.; VISIBLE REPRESENTATION OF THE LAW AND OF JUSTICE. — The judge is the visible
representation of the law and of justice. From him, the people draw their will and awareness to obey the
law. For him then to transgress the highest ideals of justice and public service for personal gain is indeed
a demoralizing example constituting a valid cause for disenchantment and loss of confidence in the
judiciary as well as in the civil service system.

6. ID.; ID.; UNWORTHINESS OF THE HONOR ATTACHED TO OFFICE; FORFEITURE OF RETIREMENT

BENEFITS EXCEPT EARNED LEAVE CREDITS OF A RETIRED JUDGE. — By these acts, Judge Abaya has
demonstrated his unfitness and unworthiness of the honor and perquisites attached to his office. As he
had previously resigned, we hereby order the forfeiture of his retirement benefits, except earned leave

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1/12/2020 A.M. No. R-705-RTJ August 23, 1989 - LIGAYA GONZALES-AUSTRIA, ET AL. v. EMMANUEL M. ABAYA, ET AL. : AUGUST 1989 - PHI…
August-1989 Jurisprudence                  "1. Estafa through falsification of public or official documents, by verifying official hours rendered by one
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credits, as recommended by the investigating officer Justice Herrera.
7. ID.; ATTORNEYS; BRANCH CLERK OF COURT; FORGING OF JUDGE’S SIGNATURE IN A PROBATION
ORDER; PENALTY. — The complaints for dishonesty and grave misconduct and for disbarment against
Atty. Ligaya Gonzales-Austria, then Clerk of Court of Branch 52, RTC Palawan, stem from her act of
having allegedly forged the signature of Judge Abaya in a probation order dated April 22, 1986 in
Criminal Case No. 4999 of said court entitled "People of the Philippines v. Leonardo Cruz" for attempted
homicide. Atty. Ligaya Gonzales-Austria admits to having signed the probation order and of having
promulgated it, but explains that these were done with the knowledge and consent of Judge Abaya, who
had asked her to prepare orders and decisions in Branch 52 to ease his load of presiding over two (2)
branches. We find Atty. Austria’s misconduct as Branch Clerk of Court to affect her qualification as a
member of the Bar, for precisely as a lawyer, she ought to have known the illegality of the act
complained of. The resignation of Atty. Ligaya Gonzales-Austria as Branch Clerk of Court IS ACCEPTED as
of December 31, 1987 and any and all benefits accruing during her government service are declared
forfeited, except her earned leave credits. Her SUSPENSION as a member of the Bar for a period of one
year from the finality of this decision is further decreed.
8. ID.; ID.; GENERALLY SPEAKING, A LAWYER HOLDING A GOVERNMENT OFFICE MAY NOT BE
DISCIPLINED AS A MEMBER OF THE BAR FOR MISCONDUCT IN THE DISCHARGED OF HIS DUTIES. —
Generally speaking, a lawyer who holds a government office may not be disciplined as a member of the
bar for misconduct in the discharge of his duties as a government official. However, if that misconduct as
a government official is of such a character as to affect his qualification as a lawyer or to show moral
delinquency, then he may be disciplined as a member of the bar on such ground.
D E C I S I O N
FERNAN, C.J.:
In a complaint under oath dated July 21, 1986, docketed as Adm. Matter No. R-705-RTJ, Atty. Ligaya
Gonzales-Austria, then Branch Clerk of Court of the Regional Trial Court (RTC), Branch 52, Puerto
Princesa City, 1 Mrs. Leonila Fuertes and Mr. Edgardo Servando charged Judge Emmanuel M. Abaya, then
Presiding Judge of RTC, Branch 51, Puerto Princesa City 2 with: jgc:chanrobles.com.ph
employee in the person of Miss Anabelle Cardenas who never reported for duty from August 1983 to May
1984 by encashing and receiving salaries of said Miss Cardenas through forgery of payee’s signature in
the treasury warrants, thus deceiving the government and defrauding the Government treasury of a big
amount of money;
"2. Gross dishonesty and corruption by soliciting, demanding, receiving bribed (sic) money in exchange
for favorable resolutions and decisions from different litigants in Branch 52, where said Judge was
temporarily assigned from November 1984 to April 1986 and of which one of the undersigned
complainant (sic), LIGAYA GONZALES-AUSTRIA is the Branch Clerk of Court;
"3. Illegal exaction of portion of the salaries of his subordinate Edgardo Servando as part and condition of
his continued employment in Branch 51, where Judge Abaya is the presiding judge." 3
Judge Abaya denied all these charges in his comment dated August 29, 1986, filed in compliance with the
Court Resolution of August 12, 1986. He asserted that these charges were concocted in retaliation
against the administrative complaint docketed as Adm. Matter No. 698-P he earlier filed on July 18, 1986
against one of his accusers, Atty. Ligaya Gonzales-Austria for dishonesty and grave misconduct in having
forged his signature in a probation order in Criminal Case No. 4995 of the RTC, Branch 52, Puerto
Princesa, entitled "People of the Philippines v. Leonardo Cruz," for attempted murder. Adm. Matter No.
698-P was followed by a petition dated August 5, 1986 docketed as Adm. Case No. 2909 for the
disbarment of Atty. Ligaya Gonzales-Austria based on the same alleged offense.
After Atty. Ligaya Gonzales-Austria had filed her comment on the charges against her, the Court resolved
to consolidate these related cases.
On October 28, 1986, the Court granted the motion of the complainants in Adm. Matter No. R-705-RTJ to
amend their complaint by including Annabelle Cardenas as defendant in the charge of Estafa thru
Falsification of Public Documents. It was averred therein that the initial exclusion was due to oversight
and that it was never intended to exclude her as a co-principal.
By resolution of December 11, 1986, the cases were referred to Court of Appeals Justice Oscar M.
Herrera for investigation, report and recommendation. Based on the evidence presented by the parties,
Justice Herrera finds the respondents guilty of the charges against them and thereby recommends: jgc:chanrobles.com.ph
"1. The FORFEITURE of retirement benefits of Judge Abaya except earned leave credits;
"2. The REMOVAL of Annabelle Cardenas from office as Court Stenographer;
"3. A one-year SUSPENSION from office as Attorney of Atty. Ligaya G. Austria in AC-2909." 4
We now consider these well-thought out recommendations.
I. ADMINISTRATIVE MATTER NO. R-705-RTJ: chanrob1es virtual 1aw library
a. Estafa thru Falsification of Public or Official Documents by Judge Abaya and Annabelle Cardenas. —
The gravamen of this charge is that Annabelle Cardenas who was appointed as Stenographic Reporter of
Branch 51, RTC, Palawan in August 1983 upon the recommendation of Judge Abaya as Presiding Judge
therein, was a ghost employee from August 1983 to May 1984 as she never reported for work during said
period, being then employed at Princess Tours Rafols Hotel as a tourist guide. Notwithstanding, with her
knowledge and consent, Judge Abaya verified as true and correct her daily time records as stenographic
reporter purportedly showing that she rendered service and incurred no absences or tardiness from
August 9 to September 30, 1983 and rendered service for the period from October 1, 1983 to May 31,
1984 and was granted leave of absence from March 14 to 30, 1984 and from April 23 to 27, 1984. Thus,
she was paid her salaries corresponding to the periods allegedly worked. Some of the Treasury Warrants
covering her salaries were, according to complainants, encashed by Judge Abaya by forging Annabelle
Cardenas’ signature.
Both Judge Abaya and Annabelle Cardenas vehemently denied the charges, countering that the latter
worked as stenographic reporter from August 1983 to May 31, 1984.
We find the charges against Judge Abaya and Annabelle Cardenas to be supported by substantial
evidence. Especially damaging to the pretensions of the respondents that Annabelle Cardenas rendered
service as stenographic reporter during the period under consideration are the school records of the Holy
Trinity College, showing that Annabelle Cardenas was attending school in the first semester of school
year 1983-1984 from 2:00 P.M. to 8:15 P.M. 5 While she claimed to have been permitted by her teacher
to attend her typing and stenography classes after office hours, the school records reveal that she has
other subjects such as Business Organization and Management (3 units), Ten Commandments (3 units),
Sining ng Pakikipagtalastas (3 units) and Accounting for Single Proprietorship (3 units), her attendance in
which can be safely concluded from the passing grades she received in said subjects. Equally damaging
to respondents’ assertion are the Daily Time Records of Princess Tours 6 showing that Annabelle
Cardenas acted as tourist guide on 43 working days when she was supposedly rendering service as
stenographic reporter. Her explanation that her name was placed on the daily time record as team
leader, although she did not actually conduct the tours reflected herein is too shallow to merit belief.
It is indeed quite intriguing that during the ten-month period under consideration, the court calendar for
Branch 51 never once carried Annabelle Cardenas’ name to signify her attendance at a court session.
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www.chanrobles.com/cralaw/1989augustdecisions.php?id=624
Moreover, she could not produce any single order, transcript or official stenographic notes that had been
taken by her in any case, civil or criminal. All she presented were so-called practice notes.
Judge Abaya stated in his comment that it was Annabelle Cardenas who was collecting her salary
"without intervention from your Respondent." 7 It was however proved that Judge Abaya collected
Annabelle Cardenas’ salaries on several occasions, as in fact, said Annabelle Cardenas even executed a
special power of attorney in his favor authorizing him not only to collect the treasury warrants but to
endorse and negotiate them as well. 8 Be that as it may, we find the evidence insufficient on the one
hand to overthrow the explanation of respondents that Judge Abaya collected Annabelle Cardenas’
salaries in Manila so that he could bring the same to Candon, Ilocos Sur for delivery to her mother, who
is a good friend of the Judge; and on the other hand to support complainants’ theory that Judge Abaya
appropriated the money for himself.
b. Charges of Gross Dishonesty and Corruption by Soliciting, Demanding and Receiving Bribe Money
against Judge Abaya. — The act complained of was allegedly committed by Judge Abaya while
temporarily assigned to Branch 52, RTC-Palawan vice Judge Jose G. Genilo, Jr., who was temporarily
assigned to Batangas City. It must be recalled that complainant Atty. Ligaya Gonzales-Austria was then
Branch Clerk of Court of Branch 52.
It was alleged that Judge Abaya denied the application for bail of the accused in Criminal Case No. 5304
entitled "People v. Henry Arias and Fernando Oniot" for murder, in consideration of the sum of P2,000.00
given by Mrs. Leonila Fuertes, complainant and mother of the victim in the aforesaid case.
Mrs. Leonila Fuertes, a school teacher, testified that she went to Branch 52 at about 5:00 P.M. on August
13, 1985 in response to a telephone call from court stenographer Nelly Vicente that Judge Abaya wanted
to see her personally. Nelly Vicente referred her to Carmencita P. Baloco, the officer-in-charge who then
called Judge Abaya from the other branch. Judge Abaya directed her to the adjoining courtroom where he
told her, "Ang kaso ninyo ay medyo tagilid, 50-50 dahil walang eyewitness." (Your case is shaky with
only a 50-50 chance of winning because there is no eyewitness.) She retorted that there was an
eyewitness but the Judge insisted that there was none because the supposed eyewitness had his back
turned when her son was stabbed. Nonetheless, the Judge assured her that he would be able to do
something about it ("Ngunit lahat ay magagawan ko ng paraan dahil ako ang nakakaalam sa mga
decision dito"). When Mrs. Fuertes asked the Judge what he wanted, he told her that he has a problem.
"Kailangan ko ng pera Limang Libo at idedeny ko ang bail na mga acusado" (I need Five Thousand Pesos
and I will deny bail to the accused). Mrs. Fuertes expressed puzzlement on why she had to give money
when she was the aggrieved party, but the Judge cut her off by saying he needed the money badly
before he leaves for Manila. Mrs. Fuertes answered that she would have to consult her brothers-in-law
about the matter. The Judge told her to see him at his house at 7:00 o’clock in the evening.
Mrs. Fuertes consulted her brothers-in-law as well as the then prosecuting fiscal, now Judge Angel R.
Miclat about the matter. Although they were all against the idea of her acceding to the Judge’s demand,
she delivered the amount of P1,200.00 to Judge Abaya on August 15, 1985 in his chambers, telling him
that that was all she could afford. Judge Abaya looked dissatisfied but said "Never mind" and that he
would just contact her at the next trial for the final judgment. 9
Roselyn Teologo, stenographic reporter of Branch 52 corroborated that portion of Mrs. Fuertes’ testimony
relating to the phone call of Nelly Vicente to Mrs. Fuertes, the latter’s arrival on August 13, 1985 at
Branch 52 and Mrs. Fuertes having been closeted with Judge Abaya inside the courtroom for about 20
minutes. She further testified that Carmen Baloco who eavesdropped on the Judge and Mrs. Fuertes’
conversation remarked, "Grabe ito, nanghihingi ng pera." (This is terrible, he is asking money.) She
added that when Judge Abaya emerged from the courtroom, he instructed her not to tell anybody that
Mrs. Fuertes had been there. 10
Additional corroborative evidence was given by Judge Angel R. Miclat, then acting City Fiscal for Puerto
Princesa City handling Criminal Case No. 5304. He testified that Mrs. Fuertes came to him in August of
1986 to inform him that Judge Abaya was asking P5,000.00 from her so that the bail application of the
accused would be denied. While he advised her to file a complaint against Judge Abaya, he was informed
later on that Mrs. Fuertes gave Judge Abaya not the amount being asked, but only about P1,200.00. 11
Likewise submitted in evidence by the complainants were the entries in Mrs. Fuertes’ diary, thus: jgc:chanrobles.com.ph
"August 13, 1985 called by Judge Abaya to see him after office hours. He asked me for my case was 50-
50. 12
"August 15 I went to town to see Baby Francisco, gave P2,000 and I brought the money to Judge." 13
"July 2, 1986 Judge Abaya with companion Rufo Gonzales and Celia Fernandez. Purpose — they
convinced me to sign my name in the affidavit stating that I will deny the previous affidavit I made
stated that Judge asked from me certain amount and his request was granted. But I did not sign and
asked me to see him in town at the residence of Menchie his niece personally nakiusap kay Baby upang
maideny ang affidavit ko through Atty. Austria ay nakiusap pa rin. He is talking cay Nanette na idinay
ko." 13
Judge Abaya denied the solicitation as well as the receipt of money from Mrs. Fuertes He alleged that the
bail application of the accused in Criminal Case No. 5304 was denied, not because of any outside
interference, but because the evidence of guilt was strong. He surmised that Mrs. Fuertes and Nelly
Vicente had been pressured by Atty. Ligaya Gonzales-Austria into testifying against him out of sheer
vindictiveness and that Mrs. Fuertes might have been blaming him for the delay in the resolution of the
criminal case against her son’s alleged killers. cralawnad
We quote with approval Justice Herrera’s perceptive reasons for giving full faith and credence to Mrs.
Fuertes’ testimony: jgc:chanrobles.com.ph
"We find no improper motive as to why Mrs. Fuertes, a school teacher, would impute such a serious
offense against a judge unless it be the truth. Mrs. Fuertes is not a disgruntled litigant. Judge Abaya
having denied the petition for bail of the suspected killer of Mrs. Fuertes’ son, she should, under normal
circumstances be grateful to the Judge. Yet she charged him with a serious offense, and travelled all the
way from Palawan to Manila to testify against the Judge. Under the circumstances, We cannot accept
Judge Abaya’s contention that Mrs. Fuertes perjured herself just to accommodate the vengeance-ful ire
of Atty. Austria against Judge Abaya. That would be contrary to the ordinary promptings of men.
"Upon the other hand, the testimony of Mrs. Fuertes is too rich in details brought out on cross-
examination which cannot simply be swept aside as mere fabrications. They find support in collateral but
highly significant circumstances pointed to by Mrs. Teologo, such as (1) the visible presence of Mrs.
Fuertes in the courtroom in conference with Judge Abaya at 5:00 o’clock in the afternoon of August 15,
(should be 13) 1985; and (2) the highly credible testimony of Judge Miclat on the report made to him by
Mrs. Fuertes, as then acting City Fiscal, on the solicitation of Judge Abaya. It certainly cannot be said
that Mrs. Fuertes merely concocted her story at the time regarding the solicitation of Judge Abaya in
connection with the pending case of the suspected killers of her son. There was absolutely no motive for
her to do so." 14
c. Charge of Illegal Exaction against Judge Abaya. — It is alleged that Judge Abaya exacted portions of
the salaries of two (2) employees in Branch 51 of the Palawan RTC as a condition for their continued
employment. Edgardo Servando, one of the complainants herein, and who was appointed stenographer
on September 3, 1984 upon the recommendation of Judge Abaya, declared that such recommendation
was made in consideration of his agreement to give Judge Abaya P1,000.00 from his initial salary and
thereafter a monthly amount of P400.00, which undertaking he complied with. However, in December
when the Judge before leaving for Manila for the Christmas vacation asked him for P1,000.00 from his
fringe benefits, medical allowance and year-end bonus, he was unable to comply as he did not then have
cash, the payment of said benefits having been in checks. A week later, he received a notice of
termination effective at the close of business hours on December 31, 1984 from the Supreme Court upon
the recommendation of Judge Abaya. 15
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www.chanrobles.com/cralaw/1989augustdecisions.php?id=624
Nilo Jamora, a former stenographer of Branch 51 testified that since his employment in said Branch,
Judge Abaya had been exacting from him P350.00 every payday, which exaction ceased only in March
1986 when Atty. Ligaya Gonzales-Austria filed her charges against Judge Abaya. He further stated that
when he refused to retract his charges against Judge Abaya before the Sangguniang Panlalawigan
despite the Judge’s offer of money, the latter demoted him to process server. 16
Judge Abaya likewise denied this charge, labelling the same as sheer vindictiveness due to Servando’s
termination and Jamora’s demotion, fanned by Atty. Austria’s proddings. He insists that the personnel
action taken on Servando and Jamora was due to their inefficiency.
While the investigating officer, Justice Herrera observed that both Servando and Jamora "testified in a
natural and straightforward, albeit in an angry manner without attempting to conceal their contempt for
Judge Abaya," 17 he concluded that "the evidence in this regard would be unable to withstand judicial
scrutiny for want of ample corroboration. It would simply be the word of one against a judge." 18
We are in accord with this observation, for indeed, the charge if true is so demeaning to an RTC judge
that it requires more than a bare allegation to sustain it. In this regard, we give respondent Judge the
benefit of the doubt.
In summation, we find Judge Emmanuel M. Abaya guilty of grave and serious misconduct affecting his
integrity and moral character which would have warranted his dismissal from the service had his
resignation not been accepted.
The office of a judge exists for one solemn end — to promote justice by administering it fairly and
impartially. In regarding justice as a commodity to be sold at a price, Judge Abaya betrayed the very
essence of magistracy. In complicity with Annabelle Cardenas, he likewise abused the trust and
confidence of the people, shortchanging them of services undoubtedly vital to the speedy administration
of justice.
The judge is the visible representation of the law and of justice. From him, the people draw their will and
awareness to obey the law. 19 For him then to transgress the highest ideals of justice and public service
for personal gain is indeed a demoralizing example constituting a valid cause for disenchantment and loss
of confidence in the judiciary as well as in the civil service system.
By these acts, Judge Abaya has demonstrated his unfitness and unworthiness of the honor and
perquisites attached to his office. As he had previously resigned, we hereby order the forfeiture of his
retirement benefits, except earned leave credits, as recommended by the investigating officer Justice
Herrera.
We further mete out to Annabelle Cardenas in consequence of her grave misconduct as above-described
the penalty of removal from office as Court Stenographer with prejudice to her re-appointment to the
Judiciary.
II. A.M. No. R-698-P and Adm. Case No. 2909.
The complaints for dishonesty and grave misconduct in A.M. No. R-698-P and for disbarment in Adm.
Case No. 2909 against Atty. Ligaya Gonzales-Austria, then Clerk of Court of Branch 52, RTC Palawan,
stem from her act of having allegedly forged the signature of Judge Abaya in a probation order dated
April 22, 1986 in Criminal Case No. 4999 of said court entitled "People of the Philippines v. Leonardo
Cruz" for attempted homicide.
Atty. Ligaya Gonzales-Austria admits to having signed the probation order and of having promulgated it,
but explains that these were done with the knowledge and consent of Judge Abaya, who had asked her
to prepare orders and decisions in Branch 52 to ease his load of presiding over two (2) branches. She
adverts to Judge Abaya’s order of November 4, 1985 which granted accused Leonardo Cruz’ motion for
reconsideration of the order denying probation. This order, which carried certain conditions, set the
promulgation of the probation order on January 16, 1986 at 8:00 o’clock in the morning. In the
meantime, Judge Abaya requested Atty. Austria to prepare the probation order with the day and month
in blank for the signature of the Judge.
On January 16, 1986, Judge Abaya was absent so the promulgation was reset to April 16, 1986. On the
latter date, the provincial warden failed to bring the accused to court, hence the promulgation of the
probation order was again reset to June 3, 1986, with Judge Abaya allegedly giving instructions before he
left for Manila to promulgate said order even in his absence should the probationer Leonardo Cruz arrive
in court.
On April 21, 1986, Leonardo Cruz came and begged that the probation order be promulgated the
following day, April 22, 1986 as he had to leave for Coron in the same pumpboat that brought him to
Puerto Princesa and he had no money to sustain him up to the time the Judge arrives from Manila. As
requested, the promulgation was set on April 22, 1986, only for Atty. Austria to discover that Judge
Abaya had neglected to sign the probation order. In view of the predicament of Leonardo Cruz and the
authority granted to her by Judge Abaya, Atty. Austria signed Judge Abaya’s name to the probation order
and promulgated it.
Atty. Austria justifies her action under the theory of agency (Art. 1881 of the Civil Code) 20 that having
been granted full authority to promulgate the probation order, she necessarily had the authority to sign
the Judge’s name if the need arose. She further maintains that as Judge Abaya never complained about
the alleged forgery, he is deemed to have ratified it and is now estopped from questioning her authority.
Lastly, she compares the probation order to a writ of execution which is usually done by the Clerk of
Court. 21
Respondent’s arguments are quite novel but unpersuasive. As thoroughly explained by Justice Herrera: cralawnad
". . . her explanation that she is the one preparing decisions and orders in Branch 52 with the knowledge
and consent of Judge Abaya during the time that the latter was acting as Presiding Judge of said branch
and that she was directed to promulgate the probation order in favor of Leonardo Cruz only to discover
that the judge overlooked to sign the order, even if true, is not a valid justification for her to simulate the
signature of Judge Abaya in the probation order. This is patently illegal. As a lawyer and branch clerk of
court, she ought to know that under no circumstances is her act of signing the name of the judge
permissible. She could have probably released the order with the statement that it is ‘upon orders of the
judge’ or ‘by authority of the judge’ but she could not under any circumstance make it appear as she did
in this case that the Judge signed the order when in fact he did not. The duties of the clerk of court in the
absence of any express direction of the Judge is well defined under Section 5, Rule 136 of the Rules of
Court which reads: chanrob1es virtual 1aw library
‘Sec. 5. Duties of the Clerk in the absence or by direction of the judge. — In the absence of the judge,
the clerk may perform all the duties of the judge in receiving applications, petitions, inventories, reports,
and the issuance of all orders and notices that follow as a matter of course under these rules, and may
also, when directed so to do by the judge, receive the accounts of executors, administrators, guardians,
trustees, and receivers, and all evidence relating to them, or to the settlement of the estates of deceased
persons, or to guardianship, trusteeships, or receiverships, and forthwith transmit such reports,
accounts, and evidence to the judge, together with his findings in relation to the same, if the judge shall
direct him to make findings and include the same in his report." cralaw virtua1aw library
"Signing orders in the name of, and simulating the signature of the judge is not one of them.
"Atty. Austria’s theory of agency that she lawfully acted as agent of the Judge is wholly devoid of merit.
The judicial power vested in a judge and its exercise is strictly personal to the Judge because of, and by
reason of his highest qualification, and can never be the subject of agency. That would not only be
contrary to law, but also subversive of public order and public policy. Nor could her void act in signing the
name of the judge be validly ratified by the latter. Judge Abaya himself is bereft of any power to
authorize the clerk of court to sign his name in his official capacity in a matter pending adjudication
before him. The issuance of the order in question is strictly judicial and is exclusively vested in the judge
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G.R. No. 86026 August 31, 1989 - FILIPINAS PORT which is beyond his authority to delegate." 22
SERVICES, INC. DAMASTICOR v. NATIONAL LABOR
RELATIONS COMMISSION, ET AL. Generally speaking, a lawyer who holds a government office may not be disciplined as a member of the
bar for misconduct in the discharge of his duties as a government official. 23 However, if that misconduct
as a government official is of such a character as to affect his qualification as a lawyer or to show moral
delinquency, then he may be disciplined as a member of the bar on such ground. 24
We find Atty. Austria’s misconduct as Branch Clerk of Court to affect her qualification as a member of the
Bar, for precisely as a lawyer, she ought to have known the illegality of the act complained of. chanrobles virtual lawlibrary

WHEREFORE, finding the respondents Judge Emmanuel M. Abaya, Annabelle Cardenas and Atty. Ligaya
Gonzales-Austria guilty as charged, except that of illegal exaction against Judge Abaya, the Court hereby
orders: chanrob1es virtual 1aw library

1. In Adm. Matter No. R-705-RTJ, the FORFEITURE of the retirement benefits of Judge Emmanuel M.
Abaya, except his earned leave credits; and the DISMISSAL from office of Annabelle Cardenas as
Stenographic Reporter with prejudice to her reappointment to the Judiciary; and,

2. In Adm. Matter No. R-698-P and Adm. Case No. 2909, the resignation of Atty. Ligaya Gonzales-Austria
as Branch Clerk of Court IS ACCEPTED as of December 31, 1987 and any and all benefits accruing during
her government service are declared forfeited, except her earned leave credits. Her SUSPENSION as a
member of the Bar for a period of one year from the finality of this decision is further decreed.

Let copies of this resolution be furnished the Ombudsman for the filing of appropriate criminal charges
against respondents if warranted.

Copies of this resolution shall be attached to the respondents’ respective personal records.

Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Endnotes:

1. Atty. Ligaya Gonzales-Austria resigned as Branch Clerk of Court effective as of the end
of December, 1987.

2. Judge Abaya’s resignation was accepted on February 17, 1987.

3. p. 1, Rollo in Adm. Case No. R-705-RTJ.

4. p. 28, Report and Recommendation.

5 Exhs. H-1 & H-2.

6. Exh. L-1.

7. p. 33, Rollo in Adm. Matter No. R-705-RTJ.

8. Exh. 8.

9. Tsn, February 3, 1988, pp. 12-18.

10. Exhs. B; tsn, February 3, 1988, pp. 33-38.

11 tsn, February 1, 1988, pp. 12-13.

12. Exh. A-1 Austria.

13. Exh. A-2.

13-A. Exh. A-3.

14. pp. 23-24, Report and Recommendation.

15. Exhibit D.

16. Tsn, February 29, 1988, pp. 19-27.

17 pp. 22-23, Report and Recommendation.

18. Ibid.

19. (Dela Paz v. Inutan, 64 SCRA 540; Canon 22, Canons of Judicial Ethics; Castillo v.
Barsana, Adm. Case No. 77-Md, April 18, 1975).

20. Art 1881 states: "The agent must act within the scope of his authority. He may do
such acts as may be conductive to the accomplishment of the purpose of the agency.."

21. pp. 7-19, Rollo in A.C. No. 2909.

22. pp. 25-27, Report and Recommendation.

23. In re Turrel, 2 Phil. 266; In re Santiago, 70 Phil. 66.

24. In re Lanuevo, Adm. Case No. 1162, August 29, 1975.

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