1. PUBLIC OFFICERS; JUDGES; PEOPLE S COURT JUDGE; DISQUALIFICATION; GROUNDS UNDER SECTION 7 OF COMMONWEALTH ACT No. 682. — Under section 7 of Commonwealth Act No. 682, a Judge of the People’s Court may disqualify himself or be disqualified on grounds specified in existing law or where the accused in a case have intervened in any previous appointment of the judge to any position in the government service.

2. ID.; ID.; ID.; ID.; SECTION 1 OF RULE 124, NOT APPLICABLE. — Section 1 of Rule 124, providing that "justice shall be impartially administered", does not have reference to disqualification of judges.

3. ID.; ID.; ID.; RULE 126 CONTROLLING. — Disqualification of judges is governed by Rule 126 entitled "Disqualification of Judicial Officers:"

4. ID.; ID.; ID.; PARTIALITY; REMEDY. — Rule 129, which provide for the procedure to be followed upon the filing of complaints for serious misconduct or inefficiency of judges of first instance or Justices of the Court of Appeals, is among those applicable of the People’s Court by express provision of section 22 of commonwealth Act No. 682. Rule 129 has been enacted in consonance with section 9 of Article VIII of the Constitution which provides: "The members of the Supreme Court and all judges of inferior courts shall hold office during good behavior, until they reach the age of 70 years, or become incapacitated to discharge the duties of their office." The fact that a judge may not administer justice impartially, whether his partiality may be considered as a serious misbehavior or is a condition which may incapacitate him to discharge the duties of his office, to preclude him from causing any harm to the administration of justice, the proper procedure is not to disqualify him, out to file the complaint contemplated by Rule 129, and the procedure will certainly be more speedy and effective. If there is an imminent danger to the proper administration of justice if the affected judge is allowed to continue in the discharge of his duties, after proper showing, he can be immediately suspended.

5. ID.; ID.; ID.; WHO DECIDES QUESTION. — Under the second paragraph of section 8 of the Code of Civil procedure, now action 2 of Rule 127, the question of disqualification must addressed to and decided solely by the judicial officer challenged.

6. ID; ID.; ID.; ID.; BIAS AND PREJUDICE; NEW TRIAL. — A biased judge may not be disqualified under section 8 of the Code of civil Procedure, the provisions of which are reproduced in rule 126, but a new trial may be ordered as a remedy of the mistrial caused by the bias or prejudice of the judge.

8. ID.; ID.; ID.; ID.; ONLY GROUNDS. — The grounds for disqualification are only those mentioned in section 8 of the old Code of Civil Procedure. now Rule 126.

Per TUASON, J., concurring:chanrob1es virtual 1aw library

8. PUBLIC OFFICERS; JUDGES; PEOPLE’S COURT JUDGE; DISQUALIFICATION; GROUNDS. — Judges may be disqualified only for proper grounds; and, where the constitution or statutes enumerate such grounds no others will be recognized and in order that a judge may be disqualified, there must exist a ground authorized by law to disqualify him, and it is not for the courts to add other grounds of disqualification.

9. ID.; ID.; ID.; ID.; ID.; SECTION 1 OF RULE 126 AND SECTION OF THE PEOPLE’S COURT ACT. — The grounds for disqualification of judges and judicial officers are specified in section 1 of Rule 1 of and, with respect to judges of the People’s Court, section 7 of the People’s Court Act adds one more ground.

10. ID.; ID.; ID.; ID.; ID.; BIAS OR PREJUDICE, PREVIOUS RULINGS, EXTREME DELICACY, PARTIALITY. — Bias or prejudice not based on any of the conditions named in the Rules of Court; previous rulings or opinions, or feelings of extreme delicacy do not constitute legal disqualification under existing legislation. The injunction in Rule 124, section 1 of the Rules of Court, that "justice shall be impartially administered without unnecessary delay", is but a declaration of general principle innate and inherent in all judicial systems worthy of the name.

11. ID.; ID.; ID.; ID.; ID.; REMEDY FOR BIAS AND PARTIALITY. — The remedy for bias and partiality of a judge amounting to serious misconduct, must be sought in proper administrative proceedings.

12. ID.; ID.; ID.; ID.; ID.; MEMBERS OF PEOPLE’S COURT WITHOUT POWER TO DISQUALIFY ANY COLLEAGUE. — The members of the People’s Court sitting in division or in banc have no power to disqualify any of their colleagues.

Per LIM, J., for granting of writ:chanrob1es virtual 1aw library

13. PUBLIC OFFICERS; JUDGES; DISQUALIFICATION GROUNDS FOR; BIAS AND PREJUDICE; CASE AT BAR. — Judge L in his concurring opinion in criminal case No. 3524, People’s Court, People v. Francisco, and in his dissenting opinion in criminal cases Non. 3524 and 3521, of the same court, People v. Aquino, and People v. De las Alas, respectively, has disclosed bias and prejudice against the State and will against the special prosecutors, by holding that all cases filed against political collaborators should be dismissed, notwithstanding any evidence of adherence, comfort and aid to the enemy, and that the prosecutors may rule the risk of being declared irresponsible for having caused grief upon thousands of citizens by the too hasty initiation of thousands of treason cases without a previous comprehension and thorough study of the law; but giving expression to his defiant and pugnacuous threats in a dissenting opinion against the decision of the Second Division convicting the accused in criminal case No. 89, People’s Court, People v. Balingit, who admittedly has helped the Japanese Military Police in the apprehension of guerrillas, some of whom were his own companions in the Manila police force; and notwithstanding the resolution of this court in Laurel v. Misa (77 Phil., 856), rejecting the theory of suspended sovereignty be continuously dissenting against the conviction of the accused in criminal case No. 822, People v. Ubaldo, who was found guilty of treason, for having adhered and given aid to the enemy, by capturing and turning over to the Japanese Army for beheading seven Filipino guerrillas.

14. ID.; ID.; ID.; ID.; ID.; RULE 126, SECTION 1, NOT EXCLUSIVE. — Rule 126, section 1, enumerating grounds for disqualification of judges, based on interest or relationship, is not exclusive, as to preclude the recusation of a judge on grounds of bias and prejudice.

15. ID.; ID.; ID.; ID.; ID.; RULE 124, SECTION 1, MANDATORY. — Rule 124, section 1, Rules of Court, in line with the constitutional principle contained in the Preamble to the Constitution, that the country should be established under ’a regime of justice", as further supplemented by the Canons of Judicial Ethics, proclaimed by Administrative Order No. 162 of the Department of Justice, enjoining an impartial administration of justice, which is the quintessence of the judiciary in a democratic country, is mandatory in character, complete, self-acting, self-executory, and it is not a simple affirmation of a general proposition, unenforceable for lack of implementation.

16. ID.; ID.; ID.; ID.; ID.; RESOLUTIONS OF DISQUALIFICATION FINALITY OF FOR LACK OF APPEAL OR OTHER PROPER REMEDY. — The Resolutions of the Second Division of the People’s Court, holding Judge L is disqualified from sitting in the A and De las A cases and others of similar nature, is supported by law and precedents, and they are final and executory, in view of the failure of Judge L and his co-respondents to appeal or to seek their review in due time, either by certiorari or mandamus, and consequently, they are precluded to attack those resolutions collaterally.

17. ID.; ID.; ID.; ID.; ID.; DUTY OF SUPREME COURT TO MAINTAIN DIGNITY OF ADMINISTRATION OF JUSTICE. — The supervisory and appellate jurisdiction of this Court over all inferior courts, by virtue of the rule-making power vested upon it by the Constitution, confer upon this Court the ineludible duty of maintaining the dignity of the administration of justice, which shall have no other qualification except fairness and impartiality without which the parapets and ramparts of democracy will crumble.

18. ID.; ID.; ID.; ID.; ID.; STATE NOT ESTOPPED TO QUESTION ACTS/CONDUCTS OF JUDGE. — The State is not in estoppel to question the acts and conduct of Judge L, indicated in his pugnacious and defiant remarks evincing patently a condition and propensity of the mind that render him incapable of exercising his functions fairly and impartially towards one of the parties, inasmuch as the State has as much right as other parties in a litigation to adopt the necessary measures and apply for a remedy that may insure a fair and impartial administration of justice.

19. ID.; ID.; ID.; ID.; ID.; PEOPLE’S COURT, POWER OF TO DISQUALIFY JUDGE. — The nature of the constitution of the People’s Court, essentially collegiate in character, and the explicit and unambiguous terms of section 7 of Commonwealth Act No. 682, justify the conclusion that the People’s Court, either in banc or in division, may disqualify anyone of its members, even over and above the objections of the latter, for it has the inherent power to prevent its destruction and maintain its dignity.

20. ID.; ID.; ID.; ID.; ID.; PROHIBITION LIES TO DISQUALIFY JUDGE. — Prohibition lies as a remedy to restrain a biased and prejudiced judge from proceeding further in pending cases. The lack of local precedents must not preclude this court from preventing the commission of a gross injustice, inasmuch as the law is progressive and dynamic, and the processes of logic must not be paralyzed nor the development of new doctrines in consonance with modern ideologies be arrested by the iron shackles of precedents.

21. ID.; ID.; ID.; ID.; ID.; REMOVAL, ADEQUACY AND APPLICABILITY OF PROCEDURE BY. — The procedure by removal prescribed in Rule 129, section 1, Rules of Court, being remedial in character, does not provide for the adequate, proper and speedy remedy required by the circumstances of this case, besides the doubt as to its applicability, inasmuch as serious misconduct, or inefficiency presuppose malice and malfeasance, proofs of which are inexistent.

Solicitor General Lorenzo M. Tañada, as head of the Office of Special Prosecutors, and Prosecutors Juan R. Liwag and Pedro C. Quinto filed, in the name of the People f the Philippines, a petition praying that a writ of prohibition be issued commanding Associate Judge Eusebio L Lopez, of the Second Division of the People’s Court, "to desist from further proceedings in, or further exercising his jurisdiction in the trial of, and from otherwise taking further cognizance of criminal cases for treason against Benigno S. Aquino (No. 3527) and against Antonio de las Alas (No. 3531), and other treason cases of the same nature actually pending before the Second Division of the People’s Court or in any other division where he may hereafter be assigned, and declaring him disqualified to sit therein."cralaw virtua1aw library

On March 14, 1946, an information for treason was filed in criminal case No. 3534 against Guillermo B. Francisco. The accused entered his plea of not guilty and the case was heard on diverse days in the months of June and July 346, before the Second Division of the People’s Court, composed of Associate Judges Salvador Abad Santos and Jose Veluz and the respondent judge.

After the prosecution had rested its case, counsel for the accused moved to dismiss, upon the sole ground that the overt acts charged in the information were not testified to by two witnesses as required by the treason law, article 114 of-the Revised Penal Code.

On August 24, 1946, a decision penned by Associate Judge Salvador Abad Santos, dated August 15, 1946, and concurred in by Associate Judge Jose P. Veluz, was promulgated, dismissing the case. Associate Judge Lopez reserved his decision.

On September 26, 1946, Judge Lopez promulgated a separate concurring opinion in which, according to the petition, "not satisfied with dismissing the aforementioned case on the ground raised by the accused therein, expressed views and conclusions of facts, not warranted by the evidence or by the issues raised by the parties nor necessary to the decision of the case, justifying the aid and comfort given to the Empire of Japan by the ’Filipino leaders’ or the so-called political collaborators and holding them in effect to be patriots and therefore not guilty of the crime of treason with which they stand charged."cralaw virtua1aw library

Upon the allegation that "the respondent judge had shown that he does not possess that unprejudiced, dispassionate, unbiased and impartial state of mind in regard to the cases of the political collaborators now pending trial in the People’s Court, which is a requisite under the statute and which is essential and necessary as a matter of right in the proper administration of justice," the prosecution filed petitions to disqualify respondent judge from sitting and participating in any manner in the hearing and decision of the criminal cases against Benigno S. Aquino and Antonio de las Alas and other treason cases of the same nature pending before the Second Division of the People’s Court. It is alleged that the petitions were filed under section 7 of Commonwealth Act No. 682, other vise known as the People’s Court Act, in relation to section 1 of Rule 124.

After due hearing and argument, the majority of the Second Division, Judges Abad Santos and Veluz, promulgated a resolution on November 8, 1946, granting the motions for the disqualification of Judge Lopez. On the same date Judge Lopez promulgated a resolution denying them.

The petition alleges that in said separate resolution respondent judge "again manifested his bias and prejudice in favor of political collaborators" and reaffirmed with more vigor the views and conclusions he expressed in his concurring opinion in the case of People v. Guillermo B. Francisco as shown by the following excerpts:chanrob1es virtual 1aw library

. . . that President Quezon gave instructions to the Filipino leaders before his departure for the United States, giving details of those instructions; that the Filipino leaders surrendered to the enemy and accepted services in the two puppet governments because they had to and because they were coerced to do so; . . . that the cooperation the Filipinos gave to the Japanese army was feigned and not real; . . ." (P. 11, Resolution, Annex I.)



The prosecution asserts that under my theory of the law all the political collaborators now facing charges of treason in this court cannot be convicted because I would decide them in accordance with concurring opinion. I am only one of the fifteen judges in the People’s Court. Even in my division I cannot presume to control the majority. But the prosecution can rest assured that if I could be given the sole power to decide the cases against political collaborators and all the other cases pending before the Peoples Court, I would dismiss every single one of them if the charges were limited to acts legal under the law of the occupant and contravention of the limitations upon the powers of the enemy established by international law." (P. 24, Resolution, Annex I.)

It is alleged in the petition that the respondent judge did not appeal from the resolution of the majority of his division and expressed his determination to maintain his minority view and to disregard entirely the majority opinion and has announced publicly his intention to continue participating in the consideration of the cases against Benigno S. Aquino and Antonio de las Alas as well as in other treason cases of the same nature, now pending before the Second Division, and that the respondent is duty bound to respect and obey the resolution of the majority, and any further intervention in his part in further proceedings, trial and decision of the above-mentioned cases, and other similar cases of political collaborators "is without or in excess of his jurisdiction and power as Associate Judge and will constitute a grave abuse of judicial functions," and that trial of the aforecited cases, including those against Pio Duran (No. 3324), Francisco Lavides (No. 3523), Vicente Madrigal (No. 3521), and Leon Guinto (No. 3535), Will soon come up before the Second Division of the People’s Court.

Judge Lopez filed his answer referring to the reasons stated in his resolution denying the petitions to disqualify him which is marked as Annex I of the petition.

Respondent Benigno S. Aquino alleged in his answer that it is not true that Judge Lopez expressed views and conclusions of fact not warranted by the evidence or by the issues raised by the parties, nor necessary to the decision of the case against Guillermo B. Francisco, and that his pronouncements in his concurring opinion, on the contrary, "were made not only in compliance with the constitutional requirement that any decision rendered by any court of record must express clearly and distinctly the facts and the law on which it is based (Article VIII, section 12, of the Constitution), but also in obedience to the exigencies of the statute that all questions of fact and law raised by the defendant’s plea of not guilty be resolved by the court.

He alleges also that the resolution of Judges Abad Santos and Veluz, granting the petitions to disqualify Judge Lopez, is contrary to law and to the repeated decisions of the Supreme Court, and that the resolution of Judge Lopez was not manifestation of his bias and prejudice in favor of political collaborators, but was merely a restatement of the law and a summary of well-known principles of international law and the law of evidence; that the majority cannot remove Judge Lopez from the Second Division, and any attempt to this effect, being unlawful, can be ignored by him.

As special defenses, respondent Aquino alleges that the petition is in fact an attempt to remove Judge Lopez from the People’s Court for a cause and not in a manner provided for in existing laws, contrary to the provisions of section 5, of Commonwealth Act No. 682, creating the People’s Court, since under the guise of disqualifying him, "it seeks to bar respondent Judge Lopez from sitting and participating in the trial and deliberation of cases assigned to the Second Division of the People’s Court," and that there is no authority of law for the institution of the present proceedings, for the reason that under Commonwealth Act No. 682, the People’s Court can only act either in banc in division of three judges.

Respondent Antonio de las Alas denies in his answer that the concurring opinion of Judge Lopez in the Guillermo B. Francisco case expressed views and conclusions of facts not warranted by the evidence or by the issues raised by the parties nor necessary to the decision of the case, and denies the allegation that the respondent judge does not possess that unprejudiced, dispassionate, unbiased and impartial state of mind in regard to the cases of the political collaborators.

The same respondent alleged as special defenses the following:jgc:chanrobles.com.ph

"1. That the conclusion of respondent Judge on treasonable collaborations as shown by his concurring opinion in the Francisco case, far from betraying bias or prejudice demonstrates on its face a careful and exhaustive study of the applicable principles of international law to the acts of the inhabitants of a territory under military occupation.

"(a) Such findings of facts and conclusion of law therefore do not constitute bias and prejudice in favor of political collaborators nor are they unfair to State or the prosecution.

"2. That even on the assumption that such a conclusion of law may possibly reflect bias and prejudice in favor of political collaborator a that of itself does not suffice for the disqualification as —

"(a) Disqualification may be sought only on any one of the grounds explicitly set forth in the law, bias or prejudice not being one of them (Rule 126, Rules of Court; section 7 of Commonwealth Act 682; Joaquin v. Barretto, 25 Phil., 281; Perfecto v. Contrer 28 Phil., 538; U. S. v. Baluyot, 40 Phil., 385; Benusa v. Torres, 55 Phil., 747; Arteche v. De la Rosa, 58 Phil., 589).

"3. That even if disqualification may be predicated on bias and prejudice, respondent Judge should not under the circumstances of this case be disqualified as the effect thereof would be

"(a) To penalize the respondent Judge not for an attitude of favoritism or hostility to either party in controversy but for a conclusion of law on a matter which admits of controversy, a conclusion arrived at after careful study and investigation and support and fortified by a wealth of citation from applicable decisions of the United States Supreme Court, pertinent portions of the Hague Convention and excerpts from the authoritative text writers in international law.

"(b) To strike at the independence of the judiciary (Cf. Borromeo v. Mariano, 41 Phil., 332);

"(c) To contravene the principles underlying the creation of collegiate courts;

"(d) To encroach on the appointing and removal power of the President (Concepcion v. Paredes, 42 Phil., 599);

"(e) To subject this respondent to the risk that his trial would be without due process of law."cralaw virtua1aw library

In the case for treason against Pedro Santos Balingit, the accused was convicted in the decision penned by Judge Veluz and concurred in by Judge Abad Santos, Judge Lopez dissenting and voting to acquit the accused. Both the majority and minority opinions are presented as an annex of the memorandum of counsel for the petitioner.

The first legal problem arising out of this controversy is the determination of whether, upon the facts alleged in the petition and appearing in the annexes on record, Judge Eusebio M. Lopez is disqualified from sitting and participating in any manner in the hearing, consideration and decision of the treason cases against Benigno S. Aquino (No. 3527), Antonio de las Alas (No. 3531), and of other criminal cases of the same -nature pending before the Second Division of the People’s Court or in any other division where respondent judge may hereafter be assigned.

This legal problem depends for its solution on the existence of (a) an applicable provision of law, or (b) an applicable provision of a judicial rule; or (c) a recognized legal principle governing the matter based on reason and justice.

We have painstakingly scanned the voluminous pleadings and memoranda presented by the parties and there no other provision of law has been invoked or cited in support of the theory of respondent judge’s disqualification except section 7 of Commonwealth Act No. 682. At the hearing and re-hearing of this case, we propounded questions to appearing counsel for any other applicable provision. The answers given failed to satisfy our curiosity. None other was mentioned or hinted.

The pertinent part of section 7 of Commonwealth Act No. 682 is as follows:jgc:chanrobles.com.ph

"No judge of the People’s Court may disqualify himself or be disqualified except in accordance with the provisions of existing laws or where the accused in a case have intervened in any previous appointment of the judge to any position in the government service."cralaw virtua1aw library

The above provision is composed of two parts, one, general, which makes applicable "the provisions of existing laws," and the other, specific, where the affected judge had been previously appointed to any government position through the intervention of the accused.

The last specific provision does not apply to Judge Lopez, as nobody alleged that any of the accused in the treason causes in question had any part in the previous appointment of said judge to any position in the government service. What remains to be determined are what "provisions of existing laws" are referred to in the above-quoted provision.

Counsel for the petitioner offered a ready answer by pointing only to section 1 of rule 124, which provides as follows:chanrob1es virtual 1aw library

Courts of justice shall be always open, except on legal holidays, for the filing of any pleading or other proper papers, for the trial of cases, and for the issuance of orders or rendition of judgments. Justice shall be impartially administered without unnecessary delay."cralaw virtua1aw library

By narrowing the subject of inquiry, the specific provision upon which Judge Lopez is intended to be disqualified is the one expressed in the following words: "Justice shall be impartially administered."cralaw virtua1aw library

Counsel’s enthymeme runs as follows: "Judge Lopez cannot administer justice impartially; therefore, he is disqualified." But the assumed major premise, which if expressly stated would complete the syllogism, finds no support at all in the invoked reglementary provision. There is absolutely nothing in said provision or in any part of section 1, Rule 124, in support of the thesis that, because a judge cannot administer justice impartially (the minor premise of the syllogism which is yet to be determined), ipso facto he is disqualified.

The question of disqualifying a judge from participating in the disposal of cases under the jurisdiction of his tribunal is a matter of grave import to be governed by more or less reasonable deductions which any one may freely take from so general and broad proposition that "justice shall be administered impartially."cralaw virtua1aw library

As that proposition embodies the fundamental aim of a system of justice, if we should follow the way of reasoning of counsel for the petitioner, all legal and reglementary provisions intended to attain that fundamental aim can be dispensed with as superfluous. All purposes and objectives of a system of justice may be summed up in the compliance of the general mandate that "justice shall be impartially administered." But as every one has his own individual ideas, plans, and methods of complying with said mandatory provision, and within its intellectual scope any one may logically give free reign to his imaginations, troubles and conflicts will never find their end. Specific rules were adopted to avoid the existence of such a confusing and chaotic situation.

That the authors of the judicial rules, in enacting section 1 of Rule 124, did not have in mind the idea of disqualification of judges, is shown by two conclusive evidences, one negative and the other affirmative.

The negative evidence is offered by the title of Rule 124 which says: "Powers and Duties of Courts and Judicial Officers." Each and everyone of the nine sections of the rule do not include nor hint the idea of disqualification. To prove it, it would be enough to read their titles: "Section 1. Courts always open; how justice administered. — Section 2. Publicity of proceedings and records. — Section 3. Process superior courts enforced throughout the Philippines — Section 4. Process of inferior courts. — Section 5. Inherent powers of courts — Section 6. Means to carry jurisdiction into effect. — Section 7. Trials and hearings; orders in chambers. — Section 8. Interlocutory orders out of province. — Section 9. Signing judgments out of province." The legal maxim that "inclusio unius exclusio alterius" perfectly applicable in this case.

The affirmative evidence is offered by Rule 126 which is entitled: "Disqualification of Judicial Officers." This rule is composed of only two sections as follows:chanrob1es virtual 1aw library

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 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 record.

Sec 2. Objection that judge disqualified, how made and effect. — if it be claimed that an official is disqualified from sitting as above provided, the party objecting to his competency may, in writing, file with the official his objection, stating the grounds therefor, and the official shall thereupon proceed with the trial, or withdraw therefrom, in accordance with his determination of the question of his disqualification. His decision shall be forthwith made in writing, file with the other papers in the case, but no appeal or stay shall be allowed from, or by reason of, his decision in favor of his own competency, until after final judgment in the case."cralaw virtua1aw library

There is no question that the above provisions are not applicable in the case of Judge Lopez. Counsel for the petitioner themselves never pretended that the case of Judge Lopez falls under any of the two above sections of Rule 126.

Assuming hypothetically that, by his several opinions mentioned in the petition, Judge Lopez has shown that he cannot administer justice impartially in the treason cases in question, if he cannot be disqualified under Rule 124 or 126 or under any other legal provision, what relief can be afforded to the impending miscarriage of justice which will result by allowing him to continue participating in the disposal of said treason cases? We regret that in this case we are not called upon to answer the question. If there is any legislative deficiency, whether due to lack of foresight of lawmakers or lack of perspicacity of the Supreme Court as a rule-making body, that deficiency is now beyond our power to correct.

But the problem presented is not irretrievably without solution under the present rules. Rule 129, which provides for the procedure to be followed upon the filing of complaints for serious misconduct or inefficiency of judges of first instance or Justices of the Court of Appeals, is among those applicable to the People’s Court by express provision of section 22 of Commonwealth Act No. 682. Rule 129 has been enacted in consonance with section 9 of article VIII of the Constitution which provides: "The members of the Supreme Court and all judges of inferior courts shall hold office during good behavior, until they reach the age of 70 years, or become incapacitated to discharge the duties of their office." The fact that a judge may not administer justice impartially, whether his partiality may be considered as a serious misbehavior or is a condition which may incapacitate him to discharge the duties of his office, to preclude him from causing any harm to the administration of justice, the proper procedure is not to disqualify him, but to file the complaint contemplated by Rule 129, and the procedure will certainly be more speedy and effective. If there is an imminent danger to the proper administration of justice if the affected judge is allowed to continue;the discharge of his duties, after proper showing, he be immediately suspended, and in support of the propriety and justice of such action the annals of the Supreme Court is certainly not lacking in precedent.

Furthermore, the procedure will be straightforward and more in consonance with the true spirit of a proper administration of justice, which cannot thrive in a climate, dominated by indirect and devious ways. The procedure for disqualification against Judge Lopez, in case it would per, would create a situation undoubtedly not exhilarating those who have a high regard for public interest. It will be the situation of a judge who, notwithstanding continuing to hold his official position, with the prestige and dignity, emoluments and privileges which it carries, is kept idle, not permitted to perform his official duties in many important cases, practically a public ward of the government. The disqualification would constitute, in effect, a removal from office, without the benefit nor the opportunity for the removed judge to defend himself in the proper administrative impeachment proceedings, and will give way to a means of circumventing the constitutional provision which guarantees the stability of judges with the concomitant independence of the judiciary.

No applicable legal or reglementary provision having been pointed out in support of the move to disqualify Judge Lopez, the next legal problem is to find out if there is a recognized legal principle which may supply their absence.

Counsel for the petitioner invoked the decision of the Supreme court in the case of Jurado & Co. v. Hongkong and Shanghai Banking Corporation, rendered on October 10, 1902 (1 Phil., 39.5, 396).

Said decision outlines the procedure to be followed in case a member of the Supreme Court is challenged to sit therein in the disposal of a given case, the outline being an attempt of interpretation of the second paragraph of section 8 of the former Code of Civil Procedure.

The opinion of the Court in said case, penned by Mr. Justice Willard, contains what follows:jgc:chanrobles.com.ph

"The application of article 8 of the Code of Civil Procedure, now in force, to a challenge directed to the competency of a judge the Court of First Instance is free from doubt. But when the challenge is to the competency of the judge of this court the article may admit of two constructions. Under one construction the magistrate decides for himself the question of his competency; his decision is conclusive, and the other members of the court have no voice in it. Under the other construction the magistrate challenged sits with the court and the question is decided by it as a body.

"We adopt this second construction as the proper one. We can not admit as possible a third construction under which the court would decide the question, excluding from the consideration of it the members challenged. This construction would, if adopted, put it in the power of a party to stop all proceedings in the cause be challenging three of the justices. The court has examined the original documents referred to at the argument, and we find nothing in them to support the challenge or which expresses an opinion on the merits of the case."cralaw virtua1aw library

An analytical comparison between the above pronouncements and the provision of law intended to be interpreted will immediately show that the construction adopted rules counter to the spirit and the letter of the law.

For a conclusive evidence of what we say we quote hereunder section 8 of the Code of Civil Procedure.

"SEC. 8. Disqualification of Judges. — No judge, magistrate, justice of the peace, assessor, referee, or presiding officer of any tribunal shall sit in any cause or proceeding in which he is pecuniarily interested, or related to either party within the sixth degree of consanguinity or affinity, computed according of the rules of the civil law, nor in which he has been counsel, nor in which he has presided in any inferior judicature 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 record.

"No challenge as to the competency of any of the officials named in this section shall be received or allowed; but if it be claimed that the official is disqualified by the provisions of this section, the party objecting to his competency may, in writing, file with the official his objection, stating the grounds therefor, and the official shall thereupon proceed with the trial, or withdraw therefrom, in accordance with his determination of the question of his disqualification. His decision shall be forthwith made in writing and filed with the other papers in the case, but no appeal or stay of action shall be allowed from, or by reason of, his decision in favor of own competency, until after final judgment in his court."cralaw virtua1aw library

The Court declared that the law admits of two constructions: 1. "The magistrate decides for himself the question of his competency; his decision is conclusive, and the other members of the Court have no voice in it;" and 2. "The magistrate challenged sits with the Court and the question is decided by it as a body." The Court rejected he first and accepted the second. This is erroneous.

The law provides that the party objecting to the competency of the Justice "may, in writing, file with the official his objection" and said official "shall thereupon proceed with the trial or withdraw therefrom in accordance with determination of the question of his disqualification." It is clear that the challenge should be addressed exclusively to the challenged officer. It also admits no doubt that the same official is the only one who shall determine whether to proceed with the trial or withdraw therefrom. The determination of the question of his disqualification lies on his power alone.

There is no doubt in our mind that the first interpretation, r ejected by the Court in the Jurado case, is the correct one. The challenge must be addressed to the allegedly disqualified Justice. The Justice decides for himself the question, and his decision is conclusive. The other members of the court have no voice in it.

The procedure is the same as outlined in section 2 of Rule 127, the one reproducing verbatim and superseding the second paragraph of section 8 of the Code of Civil procedure.

The foregoing leads us to the conclusion that the decision the Jurado & Co. case does not offer any legal principle in support of the theory of disqualification of Judge Lopez. It only offers an interpretation of section 8 of the former Code of Civil Procedure which, as has been shown, appears to be mistaken and, therefore, lacks any binding or persuasive force. As a matter of fact, at the foot of the same decision appears the statement that the Chief Justice withdrew from the case, although it does not appear whether he is the one whose competency one of the parties has challenged. If he is the one challenged, the fact that he did not abide by the Court’s decision declaring the challenge groundless, and no further action had been taken, is a conclusive evidence that no member of the court considered binding the collective opinion of the same, and that the ultimate determination and decision on the question whether a member of the court is or is not disqualified and should continue in the case or withdraw, rests exclusively in said member, and whatever action he may take is final.

The intervention of the court merely advisory nature. The challenged Justice may or may not submit, the question to the court. It all depends on his discretion. If he submits the question to the court, he is free to follow or not to follow the opinion of said body. The final result will be the same whether or not he submit question to the court, as the last word will be his. Such happened in the case of Mr. Justice Briones when, feeling that he should desist from further taking part in the proceedings of the Supreme Court in view of the proposed resolution of impeachment filed in the House of Representatives, begged leave to refrain from further participation on September 10, 1946 (42 Off. Gaz., page 2156). The fact that he abided by the opinion of the court should not be interpreted as depriving him of the freedom of disregarding said opinion and acting with free volition in accordance with the dictates of his conscience.

Such also is the case of the Chief Justice and several Justices when they decided to withdraw from the cases of De la Rama (G. R. Nos. L-263 and L-982), Teofilo Sison (G. R. No. L-398), Aurelio Alvero (G. R. No. L-820) and several others, in accordance with their respective opinions regarding section 14 of Commonwealth Act No. 682.

Lastly, in this very same case the question as to whether he Chief Justice and six other Justices are disqualified or not has been considered and the Court, by majority ’vote, adopted the opinion that said several members are not disqualified and, therefore, should continue taking part I in the disposal of this case. Of the five members who voted in support of the theory of disqualification, one, the , Chief Justice, abided by the majority opinion and remained participating in the consideration of this case up to its final decision, while the remaining four, Mr. Justice Paras Mr. Justice Briones, Mr. Justice Hontiveros and Mr. Justice Padilla, withdrew from the case. The court deemed ’it unnecessary to take further action on the matter. The above is a conclusive evidence of the fact that all the embers of the Court, either expressly or impliedly, were, t the time the incident was considered and disposed of, unanimous in the opinion that the question of disqualification of any member of this Court rests exclusively in the power of said member to decide, and whatever his decision, is final and binding.

The decision in the case of Dais v. Torres and Ibañez (57 Phil., 897-905) is pointed as a source for the missing principle, to find which in our search we may need the lantern of Diogenes. Upon the facts in the said case it clearly appears that the trial judge had shown in his decision evident bias and prejudice against one of the parties, an attorney, the mutual animosity and hostility between the judge and the lawyer arising from the fact that the lawyer filed with the Supreme Court a complaint for misbehavior, while a complaint for malpractice was also filed against the lawyer.

The Supreme Court found that the judge resented the attorney’s filing of charges against him, leading to bias or prejudice, which is reflected in the judge’s decision. This court concluded that the judge could not be disqualified under section 8 of the Code of Civil Procedure, the provisions of which are reproduced in Rule 126, but suggested that the effects of said bias or prejudice could not be left without relief, the suggestion appearing in the following paragraph that we quote:jgc:chanrobles.com.ph

"Although a judge may not have been disqualified under said section, nevertheless if it appears to this court that the appellant was not given a fair and impartial trial because of the trial judge’s bias or prejudice, this court will order a new trial, if it deems it necessary, in the interest of justice.

"It was said in State v. Board of Education (19 Washington, 8; 67 A. S. R., 706, 713), that the principle of impartiality, disinterestedness, and fairness on the part of the judge is as old as the history of courts; in fact, the administration of justice through the mediation of courts is based upon this principle. It is a fundamental idea, running through and pervading the whole system of judicature, and it ii the popular acknowledgment of the inviolability of this principle which gives credit, or even toleration, to decrees of judicial tribunals. Actions of courts which disregard this safeguard to litigants would more appropriately be termed the administration of injustice, and their proceedings would be as shocking to our private sense of justice as they would be injurious to the public interest. The learned and observant Lord Bacon well said that the virtue of a judge is seen in making inequality equal, that he may plant his judgment as upon even ground. Caesar demanded that his wife should not only be virtuous, but beyond suspicion; and the state should not be any less exacting with its judicial officers, in whose keeping are placed not only the financial interests, but the honor, the liberty, and the lives of its citizens, and it should see to it that the scales in which the rights of the citizen are weighed should be nicely balanced, for, as was well said by Judge Bronson in People v. Suffolk Common Pleas (18 Wend., 550): ’Next in importance to the duty of rendering a righteous judgment, is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge." ’

We will see that, while our study of the decision in the Jurado case gave a negative result in our investigation, the decision in the Dais case offers a positive result but in the reverse, because there it is unmistakably asserted that the biased judge may not be disqualified but a new trial is suggested as a remedy of the mistrial caused by the bias or prejudice of the judge.

The pronouncements in Day (12 Idaho , 556; 86 Pac., 531); Williams v. Robinson (6 (Cush. [Mass. ], 333) and in 33 C.J., section 129 B, quoted in the memorandum for the petitioner and in the opinion dated November 8, 1946, of Judges Veluz and Abad Santos granting the motion for the disqualification of judge Lopez, besides the fact that it has not been shown that the opinions therein are based on identical or similar legal provisions in effect in the Philippines, failed to render any specific statements upon which a legal principle may be gathered in support of the move to disqualify Judge Lopez.

The lengthy memorandum for the petitioner fails to invoke better authorities.

On the other hand, in a line of decisions such as the ones rendered in Joaquin v. Barretto (25 Phil., 281); Clarke v. Manila Candy Co. (27 Phil., 310); Perfecto v. Contreras (28 Phil., 538); United States v. Baluyot (40 Phil., 89; Benusa v. Torres (55 Phil., 737); Dais v. Torres and Ibañez (57 Phil., 897), and Artache v. De la Rosa (58 Phil., 689), this Court has consistently maintained the position that those mentioned in section 8 of the old Code of Civil Procedure, now Rule 126, are the only grounds recognized by law upon which a judge may disqualify himself or be disqualified.

If there is no law, rule, or legal principle upon which Judge Lopez may disqualify himself or be disqualified, it stands to logic that his colleagues in the Second Division of the People’s Court, notwithstanding the fact that they constitute the majority, have no power, jurisdiction, or authority to disqualify Judge Lopez and, therefore, their decision or resolution granting the motion to disqualify the respondent judge is null and void per se. Even if there is any legal ground disqualifying Judge Lopez, which in the present case has not been shown, the power to decide the question of disqualification under Rule 126 resides in Judge Lopez’s hands alone and not in any or both of his colleagues in his division or in the whole People’s Court.

The procedure outlined by section 2 of Rule 126, which is no different from the one provided by section 8 of the former Code of Civil Procedure, is predicated on the purpose of protecting the judges who fall under the provisions of section 1 of Rule 126 from any misunderstanding as to their judicial actuations, but never under the assumption that because they are thus situated, they are incapable of rendering true justice. The rule for disqualification is rather directory than mandatory in nature. If judges falling under section 1 of Rule 126 feel that they are not able to act with impartiality or, even if they can do so, their actuations may be misunderstood by the parties the public in general, they are free to take advantage of the rule in order to abstain from taking cognizance of cases in which their competence is liable to be challenged. But if they are sure that they can render true justice and they are not afraid from the effects of any possible misunderstanding arising from their actuations, they ale free to proceed. The authors of the rules knew from history and personal experience that antecedents or relations mentioned in section 1 of Rule 126 are not insurmountable obstacles for an impartial judgment. The fact that Peter the Great consented to the execution of his own son, Prince Alexis, because the latter happened to be balky and fled to a foreign country, is well-known to students of history. The fact that the prince died while being investigated in prison does not affect the impartiality of judgment shown by the dynamic personality that created modern Russia.

As a matter of principle, the idea of recognizing in the majority of a collegiate court the power to disqualify a member thereof is repugnant and destructive of the very nature of such court. The basic assumption behind the creation and existence of a collegiate tribunal is that it has to pass upon highly debatable juridical or factual issues and that, to obtain the wisest possible conclusion, full opportunity must be given for each side of a controversy to present and argue their contentions.

The decision rests in the hands of the majority, but the position or the minority must enjoy the same rights, prerogatives, freedom and opportunity as the majority express their opinions and convictions. The majority have the authority to take action, by a right or wrong decision, but the minority must be granted the untrammelled expression of their views whether the latter are correct mistaken. The essential characteristics of a collegiate tribunal are the same as those of a democracy, a government of free opinions. The freedom to express them being indispensable to guide the future to persist in following the wise footsteps of the past or to correct the mistakes and blunders which are always possible in the stem of trial and error of all human society.

Freedom of expression of the minority will be empty words if the majority should wield the power to eliminate, literate or nullify the minority through the process of qualification which, by its practical effects, is tantamount to removal or dismissal from office. To recognize the majority of a collegiate court the power to disqualify minority member thereof is to enthrone a tyrannical rule which, not because it is wielded by the majority, are exempted from cure of the abhorring evils and bathyal depravities characterizing all tyrannies.

Suppose the majority of the Second Division of the people’s Court have the authority to disqualify Judge Lopez it so happens that the remaining other judges of the people’s Court share the views of Judge Lopez. No other judge of the People’s Court may take the place of Judge Lopez, and if substitution is to be made, the practical result will be the elimination of the other judges of the people’s Court by a process of successive disqualifications which may be decreed by the majority of the Second Division. Suppose in another division the majority share the views of Judge Lopez and opine that the minority member, sharing the views of Judges Veluz and Akad Santos is qualified. Then that other division may eliminate by a process of successive disqualifications the judges sharing the views of said minority member. The practical effect is to create a situation in which all the fifteen judges of the People’s Court will stand disqualified by reciprocal disqualifications. The resulting chaos and anarchy will be a ludicrous spectacle in the administration of justice. Of course, the parties — the prosecution and defense — should not be expected to remain idle, and where there is a minority member that they feel, rightly or wrongly, antagonistic to their respective positions, they will seek from the majorities of their respective divisions the expected decree of disqualification.

The proposition that the majority of a division in the People’s Court may disqualify a minority member nullifies the legislative intent in creating a corporate tribunal, which must function and act as a single unit, with the same legal singleness of an individual person. In the same way that a person, just because he happens to be shifting, when deciding a highly controversial question, from one tentative decision to a contrary one, should not be expected to have a surgeon sever a portion of his brains in order to attain a singleness of decision, a collegiate court should not be expected to sever one of their members so as to secure unity of opinion. To entertain such an idea is to adhere to Fascist, Nazi or any other totalitarian ideology.

In a collegiate tribunal conflicting views are to be expected. The drafters of our Constitution had such an expectation. They acted upon the basic assumption that a corporate body may often be divided on questions submitted to their decision and in order to guarantee the freedom of expression of the minority, they inserted in our fundamental law the provision that "any Justice dissenting from a decision shall state the reasons for his dissent," (section 11, Article VIII of the Constitution), and that mandate is binding for the minority to comply with and for the majority to respect.

Conflict of views are only natural in any group of persons in the same way that collision of ideas is unavoidable the mind of any single individual. Contrary promptings are constantly exerting their pressure in his conscience. Good and evil, noble and ignoble, lofty and base, generous and selfish, far - sighted and narrow - minded, are y sketchy predicates of the unbounded sphere of conflict ideas which are bombarding each other in the synchrotrom and cyclotron on his brains. In that mental cosmos, ideas are scattered and mingled, like stars, planets and asteroids in the firmament, and there also work as shooting meteors opposite feelings and passions — love and hate, generosity and ingratitude, magnanimity and meanness, courage and fear, cruelty and tenderness. Thus man very often is placed in an intellectual, moral or spiritual cross road, where he has to endure the pangs of doubt and the excruciating anxiety for the choice that may happen to be wrong. Mental and moral conflicts that often place a man in an agonizing uncertainty are to be multiplied by the number of individuals composing a collegiate tribunal, and then we will see how absurd it is to expect unity or singleness of opinion therein.

There cannot be any question that the reglementary mandate that "justice shall be Impartially administered" implies that those who are called to administer it must act freely from all the factors that may impair their impartiality. Bias is one of them. It deprives the person shackled by it of the opportunity to have a clear view of the pending issue so as to form a sound judgment and of the freedom of choice between right and wrong in a given litigation.

However, not all bias is harmful. No judge is required to be free from all kinds of prejudice. To make that requirement is to attempt an impossibility. No son of woman is free from all prejudice. It is impossible to find a person who can be absolutely impartial on everything. All judges have their prejudices. Each and everyone of the members of the Supreme Court entertains some kind of prejudice, whether political, moral, religious, artistic, economic, legal, or otherwise. Each one of us is the child of our past personal experience, surroundings, education, training, associations, and each one of these tends to create some kind of prejudice. It i3 hard to set a dividing line between harmless and harmful prejudices. Each case ought to be considered according to the circumstances surrounding it. In the present case there are strong indications to the effect that Judge Lopez entertains prejudices that deprive him the freedom of choice essential for him to render impartial and sound judgment in the treason cases against Benigno S. Aquino, Antonio de las Alas, and others similarly situated.

The statements he made in his concurring Opinion in the Francisco case and in other opinions show that he is placed in a position that he is unable to render judgment but only for acquittal of no small group of those indicted for treason.

The People’s Court has been created by Congress to try those accused of treason and other crimes or offenses against national security committed during the Japanese occupation. In enacting the law, Congress tool for granted that the provisions of the Revised Penal Code punishing treason and other offenses against national security are valid during said occupation and therefore enforceable. Judge Lopez entertains a contrary view. When he accepted the position as an associate judge of the People’s Court it should be assumed that he accepted it with the knowledge that it was his duty to enforce the provisions of the Revised Penal Code for which the People’s Court was created. The fact that, notwithstanding his opinion that the provisions of law in question are not enforceable against the accused, he accepted the position, depicts a bias in favor of said accused.

But the fact alone that Judge Lopez entertained harmful bias, depriving him of the freedom of choice needed to administer justice impartially, does not authorize anybody disqualify him without any legal provision to support disqualification. Ours is a government of laws. Under our system, the laws is supreme.

While it is the duty of Judge Lopez to administer justice impartially and he will be accountable in his failure to do so amounts to a serious misbehavior, yet nobody is authorized to supply by his own will the absence of a provision of law, just to disqualify said judge. Such an attempt is violative of the principle of independence of the judiciary, and is corrosive of the fundamental principles upon which is premised our constitutional system of democracy.

"Far more convincing than precedent or argument are great and basic principles long inherent in popular government intended to create an independent judiciary. A history of the struggle for a fear and an incorruptible judiciary prepared to follow the law and to administer it regardless of consequences, can be perused with ever-recurring benefit. Since the early days of the Republic, the judicial system in the United States, with certain exceptions which only served to demonstrate more fully the excellence of the whole, has been viewed with pride, and confidently relied upon for justice by the American people. The American people considered it necessary that there should be a judiciary endowed with substantial and Independent powers and secure against all corrupting or preventing influences; secure, also, against the arbitrary authority of the administrative heads of the government.’ (Woodrow Wilson, Constitutional Government in the United States, pp. 17, 142.) It was such a conception of an independent judiciary which was instituted In the Philippines by the American administration and which has since served as one of the chief glories of the government and one of the most priceless heritages of the Filipino people



"Although much more reluctantly, and also much more infrequently are happy to add, the court has had to defend the judiciary against legislative and executive encroachment. (Ocampo v. Cabañgis [1910], 15 Phil., 626; In re Guariña [1914], 24 Phil., 37; Barameda v. Moir [1913], 25 Phil., 44; and Province of Tarlac v. Gale [1913], 26 Phil., 338-) As an instance of the latter class of decisions, in Province of Tarlac v. Gale, supra, Mr. Justice Moreland, speaking for the court, said:jgc:chanrobles.com.ph

"‘The judiciary is one of the coordinate branches of the Government. (Forbes v. Chuoco Tiaco, 16 Phil., 534; United States v. Bull, 15 Phil., 7.) Its preservation in its integrity and effectiveness is necessary to the present form of Government. . . . It is clear . . . that each department is bound to preserve its own existence if it live up to the duty imposed upon it as one of the coordinate branches of the government. Whatever a person or entity ought to do or must do in law, it has the power to do. This being true the judiciary has the power to maintain its existence; and whatever is reasonably necessary to that end, courts may do or order done. But the right to live, if that is all there is of it, is a very small matter. The mere right to breathe does not satisfy ambition or produce results. Therefore, courts nave not only the power to maintain their life, but they have also the power to make that existence effective for the purpose for which the judiciary was created They can, by appropriate means, do all things necessary to preserve and maintain every quality needful to make the judiciary an effective institution of Government. Courts have, therefore, inherent power to preserve their integrity, maintain their dignity and to insure effectiveness in the administration of justice. This is clear; for, if the judiciary may be deprived of any one of its essential attributes, or if any one of them may be seriously weakened by the act of any person or official, then independence disappears and subordination begins. The power to interfere is the power to control, and the power to control is the power to abrogate. The sovereign power has given life to the judiciary and nothing less than the sovereign power can take it away or render it useless. The power to withhold from the courts anything really essential for the administration of justice is the power to control and ultimately to destroy the efficiency of the judiciary. Courts cannot, under their duty of their creator, the sovereign power, permit themselves to be subordinated to any person or official to which their creator did not itself subordinate them.’

"A stirring plea has been made by the learned representative of the Government for a decision which will work for the public welfare. We agree that, under the peculiar conditions existing in the Philippines, it is sometimes well for a judge not to remain indefinitely in a particular district. But it is a far cry from this premise to the use of a method not sanctioned by existing law and savoring of military discipline. Our conception of good judges has been, and is, of men who have a mastery of the principles of law, who discharge their duties in accordance with law, who are permitted to perform the duties of the office undeterred by outside influence, and who are independent and self-respecting human units in a judicial system equal and coordinate to the other two departments of government. We are pleased to think of judges as of the type of the erudite Coke who, three centuries ago, was removed from office because when asked if in the future he would delay a case at the King’s order,’ replied: ’I will do what becomes me as a judge.’" (Borromeo v. Mariano, 41 Phil ., 322, 329-333.)

For all the foregoing, we conclude:chanrob1es virtual 1aw library

1. That in his opinions in the Guillermo B. Francisco case and other cases mentioned in the pleadings, Judge Lopez appears to entertain prejudices that will not permit him to render an impartial judgment in the treason cases against Benigno S. Aquino and Antonio de las Alas and other cases of similar nature.

2. That although in Rule 124 there is the mandate that "justice shall be administered impartially," there is nothing in said rule or in any other part of the Rules of Court that may support the theory that violation of the mandate is a ground to disqualify a judge, although if we violation should amount to a serious misconduct or incapacity to discharge the duties of his office, it shall be good ground for a complaint in a proceeding to remove the judge in accordance with Rule 129 and section 9, Article VIII, of the Constitution.

3. That, much as we may desire to see the mandate of Rule 124 that "justice shall be administered impartially" be a ground to disqualify and exclude from a case a judge whose bias will preclude him from taking an impartial view of the case, we cannot do so without declaring and decreeing the existence of a legal provision which, in fact! does not exist, a thing not permissible under and within the system of a government of laws, which is the one established by the Constitution.

4. That although the Supreme Court is empowered to amend the Rules of Court and it may amend it to include bias or prejudice among the grounds for disqualification of judge, if it decides to introduce such an amendment so s to fill a legal void, it may not, nevertheless, apply the amendment to the case at bar without violating the constitutional prohibition against the enactment of ex post facto laws. (Sections 1 and 2, Article III, of the Constitution.)

5. That no grounds for disqualification of judges are recognized by law except those provided in section 1 of Rule 126 and in sections 7 and 14 of Commonwealth Act No. 682, and in case a judge is challenged to take cognizance of a case on .my of said grounds, the procedure that should be followed is the one outlined in section 2 of rule 126.

6. That the provisions of Rule 126 and of section the former Code of Civil Procedure which it superseded and of sections 7 and 14 of Commonwealth Act No 682, in so far as making effective the disqualification these provided, are rather directory than mandatory in character, as they are predicated on the idea of giving judges may fall within these provisions the right and opportunity it to withdraw, in order to protect themselves from any public misunderstanding in their actuations, but never on the idea that they are incapacitated to render justice.

7. That, although according to the procedure outlined by section 2 of Rule 126, the challenged judge is the only one empowered to decide the question whether or not he is disqualified to take cognizance of and decide given case, any arbitrariness he may commit is not without remedy because an appellate court may make corrections or order re-trial and, if arbitrariness should amount to serious misbehavior or show inefficiency or inability to properly discharge his official duties, the judge may be removed from office by the procedure outlined in Rule 129.

8. That prejudice or prejudices as the one shown by Judge Lopez are not among the grounds for disqualification mentioned in section 1 of Rule 126 and section and 14 of Commonwealth Act No. 682.

9. That the majority of the judges of the Second Division of the People’s Court have no jurisdiction or power to act on the question whether Judge Lopez should or should disqualify himself, and their opinion on said question absolutely no legal effect, although, if sought by Judge Lopez himself, they may issue it in a merely advisory character.

10. That to disqualify Judge Lopez and, therefore, impede him from taking cognizance from one or more cases n grounds not provided by law, is tantamount to his oval from office without due process of law and in open violation of the independence of the judiciary.

11. That the rule prevailing in the Supreme Court to the effect that each Justice is the sole judge on the question as is disqualification to take cognizance of and participate e decision of any given case, is the same that must be wed in all other collegiate courts.

12. That although the action of Judge Lopez in accepting position in the People’s Court, entrusted to enforce laws h he believes unenforceable and to pass judgment on the guilt or innocence of many accused whom he believed from the very beginning to be not guilty and hailed to be patriots or heroes, is not beyond reproach and may give the implication that he accepted the position to favor said accused, the drafters of the law creating the People’s Court must have foreseen the possibility of such a situation when they created a collegiate tribunal as a means of avoiding possible miscarriage of justice through unipersonal judicial actuations.

13. That at the time Commonwealth Act No. 682 was enacted there were strong public feelings and prejudice as regards the conduct of those against whom informations were later with the People’s Court and to avoid the evil effects that individual judges may be swayed one way or the other, by said feelings and prejudice, the system of collegiate court was adopted to guarantee a proper administration of justice, and the effectiveness of the device adopted is shown in the instant case in which the actuations of a prejudiced judge may be overruled by a majority who do not share the same prejudice, and the majority opinion in deciding a case are the decisions of the court.

14. That the petition in this case has no legal ground to stand on.

After this case was firstly heard and submitted for our decision, the Justices taking part were equally divided and no decision could be rendered; so we ordered a rehearing in accordance with section 2 of Rule 56 in relation with section 1 of Rule 58. Said section is as follows:jgc:chanrobles.com.ph

"Where the court in banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if or rehearing no decision is reached, the action shall be dismissed if originally commenced in the court; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied."cralaw virtua1aw library

The case was submitted anew for deliberation and decision. The vote was 4 to 4. Again we have to apply section 2 of Rule 56, which only embodies a wise parliamentary rule, well-recognized in democracies.

The petition is denied.



BENGZON, J., concurring:chanrob1es virtual 1aw library

I concur in the result. However, I must say that although Judge Lopez made some mistakes in the appreciation of facts judicially cognizable, he may not thereby be held to be biased against the prosecution.

MORAN, C.J., concurring:chanrob1es virtual 1aw library

I concur in the result of Mr. Justice Perfecto’s opinion and shall state briefly my reasons. I shall confine myself to the broad, fundamental principles of the case, leaving aside all niceties of legal interpretation.

It is well settled that "judges may be disqualified only for proper grounds; and, where the constitution or statutes enumerate such grounds no others will be recognized.

"In order that a judge may be disqualified, there must exist a ground authorized by law to disqualify him, and it is not for the courts to add other grounds of disqualification . . .

The rules of Court which have the force of law specify e grounds for disqualification of judges and judicial official Rule 126, section 1, reads:jgc:chanrobles.com.ph

"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, 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 record."cralaw virtua1aw library

By reference and with the addition of one more ground, this vision was made a part of the People’s Court Act, section 7, which says:jgc:chanrobles.com.ph

"No judge of the People’s Court may disqualify himself or be disqualified except in accordance with the provisions of existing laws or where the accused in a case had intervened in any previous appointment of the Judge to any position in the government service."cralaw virtua1aw library

The grounds thus enumerated in the Rules of Court must deemed to exclude others under the principle we have and under the well-known canon of statutory construction, inclusio unius est exclusio alterius.

Bias or prejudice not based on any of the conditions named in the Rules of Court; previous rulings or opinions, or feelings of extreme delicacy do not constitute legal disqualification under existing legislation. The injunction in rule 124, section 1 of the Rules of Court, that "justice shall impartially administered without unnecessary delay", is but a declaration of a general principle innate and inherent in all judicial systems worthy of the name. Without this declaration the idea is embodied in the system. It is the very soul of the administration of justice; without it the workings of the courts would be an "administration of in justice." "The principle of impartiality, disinterestedness, and fairness on the part of the judge is as old as the history of courts; in fact, the administration of justice through the mediation of courts is based upon this principle. It is a fundamental idea, running through and pervading the whole system of judicature, and it is popular acknowledgment of the inviolability of this principle which gives credit, or even toleration, to decree of judicial tribunals." (State v. Seattle Bd. of Education, 52 Pac., 317.)

The objection to Judge Lopez’s qualification falls, in my opinion, entirely within the domain of conscience. It is matter that Judge Lopez alone can decide according to the dictates of his sense of right and wrong. The propriety of a judge sitting in a case with his mind warped and be towards one side or the other has much to answer for hi partiality; but the remedy for the wrong, if the judge’s de termination and actuations should amount to a serious misconduct, must be sought in another direction. The fact that administrative proceedings are cumbersome and do n t give ample redress to the aggrieved party is no legal justification for making an exception to the law.

As the law stands, we can only express passive disapproval of Judge Lopez’s action if it be true, as allege , that he had a preconceived opinion that all the accuse being prosecuted or to be prosecuted before the court o division of which he is a member are innocent and should b absolved. This would be no less true if his leaning happened to be on the side of the prosecution. That his opinion was inspired by an honest conviction of law and justice might mitigate but would not obliterate the inequity of his position. Its damaging effects would not be lessened be the sincerity of his conviction. His bias and partiality would be as shocking to our private sense of decency and as injurious to public interest and sentiments as they would if his motives were wicked.

At the risk of preaching platitudes we may call attention to the "things necessary to be had in remembrance by judges", among which are:chanrob1es virtual 1aw library

‘That I suffer not myself to be prepossessed with any judgment at all, ’till the whole business and both parties be heard.

That I never engage myself in the beginning of any cause, but reserve myself unprejudiced ’till the whole be rd." (Hale, Sir Matthew, History of the Common Law, 1792.)

It has been well pointed out that it is a matter of the highest moment, not only to the parties affected but to the public generally, that it might be said of every judge, however erroneous his decision might have been, that the fault did not have its origin in his personal attitude toward either of the litigants, or the cause of either of them, but was the result of an honest mistake after bringing to the case an unprejudiced mind and giving to its consideration the best judgment of which he is capable. (Petrey v. Holiday, 199 W., 67.)

Above all, it is my decided opinion that the members of the People’s Court sitting in division or in banc have no power to disqualify any of their colleagues. Carried to its logical conclusion, such power could lead to a disqualification of a judge by his colleagues, on good or frivolous grounds, in all cases. In this manner the majority of the court could accomplish what would, for all practical purposes, be a suspension or removal, thereby nullifying the constitutional safeguards designed to protect the judge’s tenure of office. More than this, the judge could be removed before he has committed any offense when, according to law dismissal or discipline of a judge has to be founded on consummated serious misconduct.

Quite apart from these objections, the disqualification of a judge by other members of the court would be revolting to the dignity of a self-respecting member of the judiciary if not to the dignity of the court, of which he is an integral part as well. Last but not least, the exercise of this power would tend to trammel the freedom of a judge to express or entertain an opinion in opposition to that of the majority, thus impairing the independence of judgment which, like integrity, and used within proper bounds, is the first and highest quality needed in the members of a strong judiciary.

Tuason, J., concurs.

LIM, J., Opinion for Granting Writ:chanrob1es virtual 1aw library

The People of the Philippines, through the Solicitor General, filed this petition for prohibition against Eusebio M. Lopez, Associate Judge of the Second Division of the People’s Court, to make him desist from further proceedings in, or further exercising his jurisdiction in the trial of and from otherwise taking further cognizance of criminal cases Nos. 3527 and 3531, People of the Philippines v. Benigno S. Aquino, and People of the Philippines v. Antonio de las Alas, respectively, and "other treason cases of same nature" actually pending before the Second Division of the People’s Court or in any other division where he may thereafter be assigned, and declaring him disqualified to sit therein.

Immediately after the prosecution had closed its main evidence in criminal case No. 3524, People’s Court, entitled People of the Philippines v. Guillermo B. Francisco, the defense counsel filed a motion to dismiss on the sole ground of insufficiency of evidence. On 15 August 1946, Associate Judges Salvador Abad Santos and Jose P. Veluz dismissed the case based on this alleged insufficiency of evidence (Annex D to petition).

On 25 September 1946, Judge Lopez published a concurring opinion, with this opening statement:jgc:chanrobles.com.ph

"The defendant is accused of treason for having occupied various important posts in the two puppet governments established by the Japanese army during the enemy occupation, having performed the various duties incumbent upon him as holder of the said posts, and for having delivered numerous speeches, allegedly treasonous, on various occasions, . also during the occupation. Strictly speaking, the delivery of the said speeches did not constitute a part of his duties as occupant of the various posts he held, and I consider them his private acts, bearing no relation to his official character." (Annex , p, 1, par. 1.)

and ended with the following remarks,

"The acts imputed to the accused, even if they had been proved, were acts within the legitimate powers of the enemy and not in contravention of the limitations upon his powers, and therefore not; treasonous, and the accused should be acquitted. As this is the effect of the decision of the majority, I concur in the result." (Annex ., p. 37; Emphasis supplied.)

In another portion, he announced his future action when he said

"This case increases in importance if we consider the fact that it . inseparably linked with other cases of the same nature against other men whose activities played a most important part in the shaping of the fate and destiny of the people during the night of the nation’s tragedy and martyrdom." (Annex E, p. 2.)

Instead of confining his discussion to the sufficiency of e evidence, which was the only issue raised in the motion r dismissal, Judge Lopez expressed personal ideologies, dislikes, prepossessions, and conclusions of fact, warranted y the evidence or the issue raised by the parties not necessary to the decision of the case, justifying unqualifiedly the d and comfort given to the Empire of Japan by the "Filipino leaders" or the so-called political collaborators. These re a few samples:jgc:chanrobles.com.ph

"It is hard to believe that the Filipino leaders . . . accepted services under those two governments without compulsion or coercion." (Annex E, p. 2.)

"One thing was uppermost in their minds; the nation must survive .." . . (Annex E, p. 4.)

"They must feign cooperation . . ." (Annex E, p- 4)

"They had the instructions of President Quezon to do so." (Annex; E, p. 5.)

"The Philippines paid heavily, perhaps too heavily, for the ill-advised and irresponsible guerrilla activities of her own sons." (Annex E, p. 7.)

"The leaders of the people surrendered and gave aid and comfort to the enemy because they knew that only by giving aid and comfort to the enemy could they hope to make the nation survive." (Annex E, p. 32.)

"Speeches alone, no matter how cloquent in praises of Japan’s magnanimity and grandeur, are not sufficient to support conviction." (Annex E, p. 36.)

and that,

"They were shields to protect the people from the brutality of the enemy." (Annex E, p. 37.)

On 2 October 1946, in criminal case No. 3527, People’s Court, People v. Aquino, the plaintiff requested Judge Lopez to inhibit himself from participating in any manner in any decision of the case, and should he not do so, that an order be issued to that effect (Annex F, p. 5). This motion was premised on the allegation:jgc:chanrobles.com.ph

"That the Honorable Eusebio Lopez in his concurring opinion referred to above has shown a mental disposition and predisposition which is neither free, disinterested, impartial, nor independent, and the state cannot expect from him in the hearing and disposition of this case and other cases of similar nature that cold neutrality so essential in the proper administration of justice." (Annex F, p. 5. par. 9)

Again, on 4 October 1946, in criminal case No. 3531, People’s Court, People v. De las Alas, the plaintiff also moved "that Hon. Judge Lopez should, through a written resolution, voluntarily disqualify himself in further proceedings of this case; and in the event that he does not willingly disqualify himself, that the second division issue an order ruling upon the present petition." (Annex G, p. 3.) This motion was likewise predicated on the bias and prejudice shown by Judge Lopez in the concurring opinion in People v. Francisco, ut supra.

On 11 November 1946, the Second Division promulgated by majority vote identical resolutions disqualifying Judge Lopez from sitting in judgment in the above-mentioned criminal cases Nos. 3527 and 3531 and "other treason cases of the same nature pending before the People’s Court" (Petition, par. IX, and Annex H). On the same date, Judge Lopez promulgated individually a dissenting resolution, pretending to deny the People’s motion for his disqualification, upon reaffirmation of the beliefs, prepossessions, and conclusions he had expressed previously in his concurring opinion in People v. Francisco, ut supra. Along with other expressions there are the following:jgc:chanrobles.com.ph

"My concurring opinion may read like a brief in favor of collaborators in general but my opinions and conclusions therein discussed are based on law and on facts, which admit no dispute, and on the sense of justice which the circumstances of the occupation evoke for those who were victims of its tyranny and impositions and who are now, in my belief, being denied their rights and privileges under the Constitution." (Annex I, pp. 8-9.)

"True, most of the facts I discussed in my concurring opinion were not proved during the trial, but they are matters of common knowledge and contemporary history." (Annex I, p. 11.)

"The Filipino leaders surrendered to the enemy and accepted services in the two puppet governments because they had to and were coerced to do so." (Annex I, p. 11.)

"The cooperation the Filipinos gave to the Japanese army was signed and not real." (Annex I, p. 11.)

"Prosecutors may now speak lightly of that tremendous brutal power that had the nation in its claws, but during the days of the occupation it was the greatest fact that completely dominated the actions of the people." (Annex I, p. 12.)

"The facts of which I have taken judicial cognizance are not controversial facts. They were not taken out of the mass of evidence resented by the parties in the heat of contest. They were matters of common knowledge and contemporary history, the truth and verity of which no Filipino, present in his country during the enemy occupation, can honestly dispute." (Annex I, p. 13.)

"President Quezon’s instructions need special mention. It is said that they were the subject of debate in the Sison case. They were. I took judicial notice of them in the Francisco case, and I am of the opinion that I have violated no rule of evidence in doing so." (Annex I, p. 14.)

"The prosecution knows that the facts are engraved in the hearts of Filipinos and have left indelible traces of their presence all over the land. They can neither be changed nor modified. They have written their own conclusions in blood and tears, and, as general conclusions, they are immutable and changeless and cannot be evaded. They need only statement, and that was what I did in my concurring opinion." (Annex I, p. 20.)

"In the Francisco case, my concurring opinion developed around the legal proposition that the acts imputed to the accused, even it they had been proved, were acts within the legitimate powers of the enemy and not in contravention of the limitations of his powers, and therefore, not treasonous, and the accused should be acquitted." (Annex I, p. 21.)

"In my concurring opinion I stated that it is cruel and inhuman to maintain the theory that the treason law of the Commonwealth was in full force and effect during the period of enemy occupation. This is not a biased and gratuituous opinion. I gave my reasons in its support. I consider the theory a vestige of a vindictive and primitive past. It places the citizen, bewildered, helpless, and abandoned, between the teeth of two conflicting penal laws: The Japanese law that considers non-cooperation a hostile act, punishable with death, and the law of his own country that makes him guilty of treason if the adheres and gives aid and comfort to the enemy. If to live under an alien military rule is purgatory, the theory of the prosecution makes it hell." (Annex I, pp. 22-23.)

"But the prosecution can rest assured that if I could be given the sole power to decide the cases against political collaborators and all other cases pending before the People’s Court, I would dismiss every single one of them if the charges were limited to acts legal under the law of the occupant and not in contravention of the limitations upon the powers of the enemy established by international law." (Annex I, p. 24.)

"It is said that the State will not receive a fair and impartial hearing at my hands. The charge is unjust. The prosecution represents the State, but the prosecution is not the voice of the State. The State is fixed through its laws and the prosecution has no assurance that its interpretation of the law is the correct one, in its insistence to ignore the provisions of Article II, section 3, of the Constitution, it runs the risk of being declared irresponsible for having caused necessary suffering and humiliations upon thousands of innocent citizens by the too hasty initiation of thousands of treason cases with a precious comprehensive and thorough study of the law." (Annex I, p. 25.)

"No treason law, however stiff and exacting and cruel, has ever made a country great Cruelty breeds hatred, and can never be made the foundation of true greatness, whether of nations or of individuals. The strength of a country depends on the loyalty and devoted patriotism of its citizens, and the world has yet to find a .e son law that will create patriots. Loyalty and patriotism cannot be imposed on anyone. They are natural flowers of the soul, born out of love for native soil." (Annex I, p. 26.)

I was moved by a sincere wish to help clear Philippine atmosphere is understandings and of mutual charges and recriminations that sprung out of the horrors of the war." (Annex I, p. 29.) emphasis furnished for emphasis.)

On 13 January 1947 (although dated 11 December 1946 — see memorandum for the prosecution, p. 33), in criminal case No. 89, People’s Court, People of the Philippines v. Pedro Santos Balingit, Judge Lopez wrote and promulgated a dissenting opinion against the majority decision convicting said Balingit of the crime of treason. This short but self-contained dissenting opinion reads fully as follows:jgc:chanrobles.com.ph

"The accused was taken from the Manila Police Force by the Japanese Military Police to help the latter in the apprehension of guerrillas. He helped in the arrest of some of the members of the Manila Police Force, his own companions and there are indications that it was his information that led to their arrest. His conduct, in this respect, is certainly reprehensible and immoral, even unpatriotic, but I am of the opinion that he cannot be convicted under article 114 of the Revised Penal Code because he acted in the performance of his duties under the law of the occupant, and, in so doing, had not violated any of the limitations upon the powers of the enemy imposed by international law." (Annex A, Memorandum for Petitioner, last page.)

On 31 January 1947, this Court promulgated its prosecution of 30 January 1947, in Laurel v. Misa (77 Phil., 856), denying the applicant’s petition for habeas corpus, which as speculated on the theory of suspended sovereignty.

On 18 February 1947, Judge Lopez, in criminal case No. 822, People of the Philippines v. Segundo Ubaldo, and notwithstanding our resolution in the Anastacio Laurel case, once more dissented orally against the decision of the Second Division of the People’s Court, which found Ubaldo guilty of the crime of treason, for having adhered and given aid to the enemy. The majority of that court found that Ubaldo, while in command of about one hundred affiliates of the MAKAPILI, had captured seven Filipino civilians and thereafter turned them over to the Japanese Army, with instructions that they be beheaded, on the excuse that they were guerrillas (People’s Petition of 21 February 1947, and its Annexes 1 and 2).

On 28 March 1947, Judge Lopez published his written dissenting opinion in the Ubaldo case, reiterating his previous stand in the - Francisco Annex E, p. 37), Aquino and De las Alas (Annex I, p. 24), and Balingit (Annex A, to Memo for Petitioner, last page) cases, and concluding that "the acts committed by the accused were legal under the existing law of the occupant and were not in violation of any of the recognized principles of international law." (Annex A, p. 1, to People’s Petition of 29 March 1947.)

Three main issues stand out before this Court: First, is there a ground for the disqualification of Judge Lopez Second, can the Second Division of the People’s Court disqualify him? And, Third, is this petition for prohibition proper and adequate? We are not called upon to pass upon the correctness or legality of his personal views and beliefs.

The petitioner contends that Judge Lopez is disqualified under the terms of section 7 of Commonwealth Act No. 682, which in its pertinent portion partially provides:jgc:chanrobles.com.ph

"No judge of the People’s Court may disqualify himself or be disqualified except in accordance with the provisions of existing laws or where the accused in a case have intervened in any previous appointment of the judge to any position in the government service.’

in relation with Rule 124, section 1, Rules of Court, which expressly and categorically enunciates that

. . . Justice shall be impartially administered without unnecessary delay."cralaw virtua1aw library

Section 7 of Commonwealth Act No. 682 provides that the grounds for disqualification of a judge of the people’s Court as those contained in "the provisions of existing laws here the accused in a case had intervened in previous appointment of a Judge to any position in the government service." If the Congress, in referring to "existing laws", meant exclusively the grounds of disqualifications contained in Rule 126, section 1, it would have far easier to have mentioned the same specifically, instead of resorting to a general phrase. The Congress must have borne in mind that aside from the enumeration rule 126 there were other legal grounds, such as those included under Rule 124, section 1.

It may be added that on 1 August 1946, the Department; Justice issued its Administrative Order No. 162, other wise known as the "Canons of Judicial Ethics." It was adopted with the explicit approval of the People’s Court and promulgated advisedly for the use of such and other inferior courts. This is a local adaptation of the Canons Judicial Ethics adopted previously by the American Bar Association. It stressed repeatedly on an impartial administration of justice (secs. 2, 4, 12, 14).

A cursory review of the different statements of Judge Lopez leads conclusionally that he is obstinately opinionated dogmatically biased and prejudiced not only against the special prosecutors, as signified most emphatically in concurring opinion in the Francisco case and reaffirmed in more contemptuous terms in his dissenting statements against the resolutions of the Second Division of the People Court disqualifying him from sitting not only in the Aquino and De las Alas cases but also in other treason case of similar nature. His aggressive and defiant remarks patently evince a condition and propensity of the mind that renders Judge Lopez incapable of exercising his functions fairly and impartially towards one of the parties. He discloses not only a mere leaning to one side of the fundamental issues but he demotes even ill-feeling and animosity towards the prosecution; these are sentiment s and inclinations inconsistent with that state of mind that should be fully open to the conviction which evidence may produce, which is an essential and necessary attribute in order that a judge may be able to exercise his judicial functions fairly and impartially. His reiterated and persistent conduct as an opiniater inclined to prepossessed favoritism towards the persons accused before the People’s Court paralyzes all empirical surmises and peradventures as to his unchangeable opinion in the other treason cases pending before him. His beliefs and prepossessions have gone beyond the bounds of mere probabilities. Glaring and unmistakable patterns of the fixity of his determination to dismiss all collaboration cases are furnished by his dissenting opinions in the Balingit and Ubaldo cases. The facts and the evidence established beyond peradventure treasonous acts yet he voted for the acquittal of the accused in both cases, with the peculiarity that this dissent in the second case was verbally announced, written and published close upon the resolution of this Court rejecting unconditionally the theory of suspended sovereignty asserted in the Anastacio Laurel case.

Mr. Justice Perfecto has admitted that,

"In the present case there are strong indications to the effect that Judge Lopez entertains prejudices that deprive him the freedom of choice essential for him to render impartial and sound judgment in the treason cases against Benigno S. Aquino, Antonio de las Alas, and others similarly situated." (Opinion of Justice Perfecto, p. 312, ante)

He further added:jgc:chanrobles.com.ph

"The statements he made in his concurring opinion in the Francisco case and in other opinions show that he is placed in a position that he is unable to render judgment but only for acquittal of no small group of those indicted for treason." (Idem, p. 312. ante.)

Another learned member of this Court, who concurred the preceding one, had made these remarkable comments on the respondent Judge:chanrob1es virtual 1aw library

As the law stands, we can only express passive disapproval of e Lopez’s action if it be true, as alleged, that he had a preconceived opinion that all the accused being prosecuted or to be prosecuted before the court or division of which he is a member are innocent and should be absolved. This would be no less true if his leaning happened to be on the side of the prosecution. That his opinion was inspired by an honest conviction of law and justice might mitigate but would not obliterate the inequity of his position. Its damaging effects would not be lessened by the sincerity of his conviction. His bias and partiality would be as shocking to our f private sense of decency and as injurious to public interest and sentiments as they would if his motives were wicked." (Concurring opinion of Justice Tuason, pp. 320, 321, ante.)

Speaking of Judge Lopez’ duties and unnamed conduct hen he accepted his position in the People’s Court, the Justice first designated pointedly remarked:chanrob1es virtual 1aw library

‘The People’s Court has been created by Congress to try those accused of treason and other crimes or offenses against national security committed during the Japanese occupation. In enacting e law, Congress took for granted that the provisions of the Revised Penal Code punishing treason and other offenses against National security are valid during said occupation and therefore enforceable. Judge Lopez entertains a contrary view. When accepted the position as an associate judge of the People’s Court it should be assumed that he accepted it with full knowledge that it was his duty to enforce the provisions of the Revised Penal Code for which the People’s Court was created. The fact that, notwithstanding his opinion that the provisions of law in question not enforceable against the accused, he accepted the position, depicts a bias in favor of the accused." (Opinion of Justice Perfecto, p. 312, ante.)

In finding that it was not possible for Judge Lopez to the case before him without prejudice, we pause in all fairness to disclaim the remotest reflection on the motives of the able and learned Respondent. The attitude may well be ascribed to the righteous aspirations of an honest and conservative judge to attain independence and to form judgments promoted by what he conceived to be unjust and unwarranted prosecution of the Filipino leaders, whom he considered not only to be heroes but had acted under duress, without any other aim except the safety of the country.

Although there exists a virtual unanimity of opinions that Judge Lopez in the instances under consideration acted with bias and prejudice and in favor of the political collaborators, at least, and that he has openly announced his determination to vote in favor of the latter in all future cases in which he may have to intervene, it is adduced nevertheless, that said bias and prejudice are not grounds for disqualification in this jurisdiction, inasmuch as the enumeration in Rule 126, section 1, Rules of Court, is exclusive. Inclusio unius exclusio est alterius. This proposition finds no basis either in law or in judicial precedents.

True enough, Rule 126, section 1, enumerates the grounds under which a judge may be disqualified. True enough, too, the concurrence of the grounds therein indicated does not ipso facto render the decision of the judge null and void, even though he has rejected previously a petition seeking his disqualification. It is of historical knowledge that a great number of judges have rendered judgments, oftentimes too severe, when they concern their own kin; their ,sense of justice was stronger than their human likings, attachments and passions. The same will not hold when it is patent, as it is in this case, that a judge had taken a previous stand that will make his subsequent judgment unavoidably partial and biased.

The dispositive portion of the decision of this Court in the case of Dais v. Torres and Ibañez (57 Phil., 897), in which a new trial was ordered before "another judge", palpably because the respondent judge was biased or prejudiced, leaves no other alternative. Judicial precedents are to be drawn not on mere dicta but on the dispositive portions of the decisions that embody the actual adjudication the case. If bias and prejudice are not grounds for qualification of a judge, why it is that a "new trial" was ordered before "another judge" ? This Court stated in that case:jgc:chanrobles.com.ph

"It was said in State v. Board of Education (19 Washington, 8; 67 A. S. R., 706, 713), that the principle of impartiality, disinterestedness, and fairness on the part of the judge is as old as the history of courts; in fact, the administration of justice through the mediation of courts is based upon this principle. It is a fundamental idea, running through and pervading the whole System of judicature, and it is the popular acknowledgment or the inviolability of this principle which gives credit, or even toleration, to decrees of judicial tribunals. Action of Courts which disregard this safeguard to litigants would more appropriately be termed the administration of injustice, and their proceedings would be as shocking to our private sense of justice as they would be injurious to the public interest. The learned and observant Lord Bacon well said that the virtue of a judge is seen in making inequality equal, that he may plant his judgment as upon even ground. Caesar demanded that his wife should not only be virtuous, but beyond suspicion; and the State should not be any less exacting with its judicial officers, in whose keeping are placed not only the financial interests, but the honor, the liberty, and the lives of its citizens, and it should see to it that the scales in which the rights of the citizen are weighed should be nicely balanced, for, as was well said by Judge Bronson in People v. Suffolk Common Pleas (18 Wend., 550): Next in importance to the duty of rendering a righteous judgment, is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge.’" (Emphasis furnished.)

This decision in the Dais v. Torres and Ibañez case pronounces in unmistakable terms the universal proposition that "impartiality" is an essential and primary condition in the administration of justice; otherwise, a "new trial" would not have been ordered before "another judge", predicated on the grounds of bias and prejudice not enumerated in section 8 of the old Code of Civil Procedure (A(t No. 190).

This court could not have held a different conclusion in the light of the provisions of either section 8 of the old Code of Civil Procedure or under section 1 of Rule 126, quite apart from section 1 of Rule 124. The reason that financial interests or mere relationship to a litigant is held to be sufficient to recuse a judge is that it is to be presumed that self-interest or natural affection will unconsciously prejudice a judge, and deprive the litigant of a fair trial. This presumption in certain cases may or may not be justified by the truth, but so solicitous is the law to maintain inviolate the principle that every litigant should be secure in his right to a fair trial, that he is accorded the benefit of the presumption. But, what does a presumption amount compared with the admitted fact that the judge will not accord the State a fair trial, — that he will vote to acquit the accused, no matter what the evidence may be? To compel a litigant to submit to a judge who has already confessedly prejudged him, and who is candid enough to announce his decision in advance, and insists that he will adhere to it, no matter what the evidence may be, should be so farcical and manifestedly wrong, that it seems to us that the idea must necessarily be excluded by the very expression "administration of justice."cralaw virtua1aw library

Fundamentally, bias and prejudice lies at the very root of the provision of said Rule 126. In fact, if the rule did not presume the existence of bias or prejudice in the peculiar relations therein referred to, namely, kinship, pecuniary interest, former relation with the case as counsel, etc., the inhibition therein established would not have been inserted therein. Such presumed bias or prejudice constitutes the very reason for the provision. Other wise stated, if the rule-making power could only foresee that no judge who found himself in any one of those peculiar relations would be swayed thereby or would act with bias or prejudice, the rule would not have been promulgated. Indeed, the rule itself recognizes the possibility of the presumption not coming true in conferring upon the judge, under certain circumstances, the power to decide against his own disqualification and admitting the possibility of such decision being affirmed on appeal. And yet it is said on all sides that where any of those peculiar relations exists, disqualification follows.

It is elementary that this Court has at no time passed upon the full extent and true meaning of the principles contained in Rule 124, section 1? Rules of Court, which as partially extracted from section 1 of Act No. 136, of the former Philippines Commission. They are neither unique nor exclusive of this jurisdiction. They find a parallel in Article 1, section 18, of the Constitution of Idaho, which reads as follows:chanrob1es virtual 1aw library

‘ARTICLE 1, SEC. 18. Justice to be freely and speedily administer. — Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property, or character, and right and justice shall be administered without sale, denial, delay or prejudice."cralaw virtua1aw library

In the case of Day v. Day (12 Idaho, 556), the supreme Court of the State of Idaho held that under these constitutional provisions the courts of said State are commanded to administer justice without prejudice, and, in view thereof, a judge may be disqualified on said ground, independently of the provisions of section 3900 of the Revised Statutes of 1897, providing for the same grounds of disqualification enumerated in our Rule 126. It is axiomatic that American and common laws are not binding on our courts, unless founded on sound principles applicable to local conditions, and are not in conflict with existing law (U. S. v. Cuna, 12 Phil., 241; Arnedo v. Llorente and Liongson, 18 Phil., 257; U. S. v. Abiog and Abiog, 37 Phil., 137), but in case of doubt as to which construction should be given that which best promotes public policy must be applied (Rubi v. Provincial Board of Mindoro, 39 Phil., 660)

The denial of this petition for a writ of prohibition, of the assumption that an appeal lies against an absolutory decision of Judge Lopez, based on his bias and prejudice, will result in an unnecessary and injurious delay. This would be another violation of Rule 124. If this dubious appeal succeeds, the case will have to be retried, subject to all eventual incidents and defenses, such as double jeopardy, loss of witnesses, lapse of memory, etc.

Notice the mandatory character of Rule 121, section 1, when it enjoins that "justice SHALL be impartially administered without unnecessary delay" ; it is mandatory, even without the use of the verb "shall", for the injunction permeates the essence of the thing to be performed. A mandatory statute may be defined as one whose provision if not complied with will render the procedure to which it related illegal and void (Barnett v. Prairie Oil & Gas Co., 19 Fed. [2d], 504; Quachita Power Company v. Donaghey, 106 Ark., 48; 162 S. W., 1012; People, s. Graham, 267 Ill., 426; 109 N. E., 699; Bowen 2S. Minneapolis,