Home of ChanRobles Virtual Law Library



[A.M. No. RTJ-02-1715. September 3, 2002.]

ATTY. DIOSDADO CABRERA, Complainant, v. JUDGE OSCAR E. ZERNA and GLORIA Z. MARTINEZ, Stenographer, Regional Trial Court, Branch 7, Tubod, Lanao del Norte, Respondents.



A verified letter-complaint 1 for Immorality and Grave Misconduct was filed by Atty. Diosdado Cabrera against Presiding Judge Oscar Zerna, Sr. of the Regional Trial Court of Tubod, Lanao del Norte, Branch 7 and Gloria Z. Martinez, stenographer.

Complainant alleged that both respondents have been living together as husband and wife despite the fact that they are both lawfully married to their respective spouses who are still living; that both respondents live in a newly built house located in Poblacion, Tubod, Lanao del Norte; that the house is equipped with an air conditioning unit and a garage intended only for the service-type. jeep of respondent judge; that he acquired the said jeep from a litigant in whose favor he issued an injunctive writ; that the house was built with construction materials acquired from a litigant in two civil cases pending at respondent judge’s sala and from another litigant who obtained a favorable judgment in a case.chanrob1es virtua1 1aw 1ibrary

Complainant likewise charged respondent judge with grave misconduct in connection with several criminal cases pending in his sala, to wit:chanrob1es virtual 1aw library

1. Criminal Case No. 07-542, where complainant charged respondent judge with rendering a patently erroneous judgment;

2. Criminal Cases Nos. 07-982, 889 and 890, which are drug related cases, where complainant charged the respondent judge with having approved the bonds of supposed bondsmen who did not submit their 2 x 2 I.D. photos or who are either already dead or are out of the country; and

3. Criminal Cases No. 07-993, 07-995, 07-996 and 07-997 against five accused therein, in connection with which complainant charges the respondent judge of:chanrob1es virtual 1aw library

a) granting recognizance to two of the accused without legal basis, right upon the filing of their motions for recognizance and without giving the prosecution opportunity to comment or oppose thereon. There was also an absence of any recommendation from the DSWD for the release of the two alleged "minor" accused. Respondent judge released on recognizance two accused on the mere basis of questionable Certificate of Live Births furnished by the latter; and

b) illegally dismissing these four criminal cases upon motion of a lawyer who was not the counsel of record, without giving the prosecution a chance to be heard, as the Orders of dismissal were issued on the very same day that the motion to dismiss was filed. The dismissals were based only on the Affidavits of Desistance executed for all the four criminal cases by one Georgia Sy, who was the private complainant in only two out of the four cases.

As regards respondent Martinez, complainant alleged that she has acquired real and personal properties in amounts that far exceeded her earning capacity.chanrob1es virtua1 1aw 1ibrary

Respondent Martinez submitted her Counter-Affidavit 2 where she specifically denied the allegations in the complaint a) relative to the house allegedly used by them for their adulterous relationship; b) pertaining to the referral to her as the wife of respondent judge; c) relative to her alleged immoral relationships with other parties prior to her illicit relationship with respondent judge; and d) on her alleged acquisition of real and personal properties in amounts which far exceeded her salary.

Respondent judge, on the other hand, failed to file his comment despite two motions for extension of time to file comment.

Upon evaluation, the OCA recommended the referral of the case to Associate Justice of the Court Appeals for formal investigation, report and recommendation. 3 Subsequently, the case was referred to Associate Justice Delilah Vidallon Magtolis of the Court of Appeals 4

Stripped of other incidental matters, the investigating Justice found that both parties failed to present their respective supporting evidences 5

During the investigation, complainant failed to appear. Instead, he wrote a letter 6 informing the investigating Justice that he was no longer interested in pursuing his complaint because his witnesses have disappeared, or otherwise have turned indifferent and hostile. He also manifested that in view of the 2-year period that elapsed since he filed the complaint, he thought that his complaint was not given due course. Thus, he withdrew his participation in the investigation.

Despite several notices for him to appear and defend himself, respondent judge failed to answer the complaint or deny the charges against him.

However, the investigating Justice proceeded to resolve the case on the basis of the available records on hand.chanrob1es virtua1 1aw 1ibrary

On January 19, 2001, a report and recommendation was submitted the investigating Justice, the dispositive portion of which states:chanrob1es virtual 1aw library

In view of the foregoing, we hereby recommend that the respondent judge be declared guilty of grave misconduct and be meted FINE OF AT LEAST P20, 000. 00.

The charges against respondent Martinez may be DISMISSED for lack of evidence.

The investigating Justice recommended the dismissal of the charge of immorality because of complainant’s failure to appear at the hearings to prove the same by substantial evidence.

As to Criminal Case No. 07-542 for frustrated murder, the investigating justice found that the assailed decision has been affirmed by the Court of Appeals. Accordingly, the charge of complainant against the respondent judge of rendering a patently erroneous judgment has been rendered moot and academic.

With regard to Criminal Cases Nos. 07-982, 889 and 890, under Rule 114, Section 2 of the Rules of Court, only the passport size photos of the accused should be attached in the applications for bail. Thus, the submission of the 2 x 2 photographs by bondsmen is not required. Likewise, no evidence was found to substantiate the alleged demise or departure for the USA of the bondsmen in the said criminal cases.

Regarding Criminal Cases Nos. 07-993, 07-995, 07-996 and 07-997, the complainant alleged that the respondent judge was precipitate in 1) ordering the release on recognizance of the two accused, and 2) ordering the dismissal of the four criminal cases without a hearing on the basis of the affidavits of desistance of Gregoria Sy.

We agree with the investigating Justice that the respondent judge was precipitate in ordering the release on recognizance of Wahab Alom and Saro Ganda, two of the five accused in Criminal Cases Nos. 07-993, 07-995, 07-996 and 07-997. Not only did respondent judge fail to observe the requirement of a hearing before the accused could be released on bail, he also failed to observe the procedure for the release of a youthful offender under Section 191 of P.D. 603.chanrob1es virtua1 1aw 1ibrary

Like any application for bail, a motion to be released on recognizance has the objective of sparing an accused from imprisonment until his conviction and yet secure his appearance at the trial of a pending criminal case. 7 Jurisprudence dictates that a hearing is required in granting bail whether it is a matter of right or discretion and the notice of hearing is required to be given to the prosecutor or fiscal, or at least he must be asked on his recommendation. 8 To do away with the requisite hearing is to dispense with this time-tested safeguard against arbitrariness. 9 Perforce, respondent judge should have given the prosecution the opportunity to be heard or at least be allowed to comment or submit its opposition on the application for bail by recognizance.

We also note that when accused Alom and Ganda applied for bail by recognizance, both of them made reference, among others, to the applicability of the Child and Youth Welfare Code (P.D. 603), Section 191, which provides:chanrob1es virtual 1aw library

Article 191. Care of Youthful Offender Held for Examination or Trial. — A youthful offender held for . . . trial . . ., if unable to furnish bail, shall from the time of his arrest be committed to the care of Department of Social Welfare and Development or the local rehabilitation center or detention home in the province or city which shall be responsible for his appearance in court whenever required: Provided, that in the absence of any such center or agency within a reasonable distance from the venue of the trial, the provincial, city and municipal jail shall provide quarters for youthful offenders separate from other detainees. The court may, in its discretion upon recommendation of the Department of Social Welfare and Development or other agency or agencies authorized by the Court, release a youthful offender on recognizance, to the custody of his parents or other suitable person who shall be responsible for his appearance whenever required. . . . (Emphasis supplied)

Ensconced in the aforementioned provision of law is the indispensable requirement that before a trial court may release a youthful offender on recognizance to the custody of his parents, the recommendation from the DSWD or other agency or agencies authorized by the Court must be obtained. Otherwise, the youthful offender shall be confined in a separate quarter either in the provincial, city or municipal jail.chanrob1es virtua1 1aw 1ibrary

Notwithstanding the reference made by the two accused-applicants for bail by recognizance, the respondent judge failed to observe the procedure outlined in Section 191 of P.D. 603 and merely relied upon the birth certificates of the two accused-appellants which showed that respondent judge was deliberately remiss in his duty to uphold the clear mandate of the law.

As correctly observed by the investigating Justice:chanrob1es virtual 1aw library

The record of the said cases indicate that indeed, Accused Alom and Ganda were precipitately discharged immediately upon their filing of the motions for recognizance, without giving the prosecution a chance to react thereto, and without proper recommendation of the DSWD as required in Sec. 191 of the Child and Youth Welfare Code (P.D. 603, as amended). The basis of the release was the respective birth certificates of the said accused which show upon their faces that they were registered after the filing of the cases and merely two days (9/22/97) before the motions for recognizance were filed on September 24, 1997. The said birth certificates were not even certified by the Local Civil Registrar concerned.

Obviously, the respondent judge acted with undue haste and without sufficient basis in ordering the release of said accused on recognizance. There being no apparent legal basis in granting recognizance under P.D. 603, the respondent judge should have observed the general guidelines in the grant of recognizance, . . .

Furthermore, it appears from the records that due to respondent judge’s negligence in granting bail by recognizance, the two accused who stand charged with four criminal cases, are now both at large. 10 Judges, by the very delicate nature of their office and exalted position they occupy as dispensers of justice, are required to be more circumspect in the performance of their duties. 11chanrob1es virtua1 1aw 1ibrary

We are not unmindful of the mistakes that judges may commit in the discharge of their duties. However, they are expected to have more than just a cursory acquaintance with the elementary rules governing, procedure as well as jurisprudence. Having accepted the exalted position of a judge, whereby he judges his fellowmen, the judge owes it to the public who depend on him, and to the dignity of the court he sits in, to be proficient in the law. 12 This is so because every judge is bound to know and sworn to uphold the observance of the law. 13

It was held in Cacayoren v. Suller 14 that: "A judge should be the embodiment of competence, integrity and independence. It is a pressing responsibility of judges to keep abreast with the law and changes therein for ignorance of the law, which everyone is bound to know, excuses no one — not even judges. And while judges should not be disciplined for inefficiency on account merely of occasional mistakes or errors of judgment, yet it is highly imperative that they should be conversant with fundamental and basic legal principles in order to merit the confidence of the citizenry."cralaw virtua1aw library

WHEREFORE, in view of the foregoing, respondent Judge Oscar E. Zerna, who has since retired, is found GUILTY of grave misconduct and is ordered to pay a FINE in the amount of P20,000.00, the same to be deducted from whatever retirement benefits are due him. The charge of immorality against him is DISMISSED for lack of evidence.chanrob1es virtua1 1aw 1ibrary

The charges against respondent Gloria Z. Martinez are DISMISSED for lack of evidence.


Davide, Jr., C.J., Vitug, and Carpio, JJ., concur.


1. Rollo, pp. 1-6.

2. Ibid., pp. 22-24.

3. Id., pp. 36-38.

4. Id., p. 39.

5. Report on Adm. Matter I.P.I. No. 98-493-RTJ, pp. 1-15.

6. Id., p. 48.

7. Green v. Petit, Sheriff, 54 N. E. 2d 281 cited in Almeda v. Villaluz, 66 SCRA 38 (1975).

8. Estoya v. Abraham-Singson, 237 SCRA 1 (1994); Buzon v. Velasco, A.M. No. RTJ-94-1209, February 13, 1994, citing Concerned Citizens v. Elmo, 241 SCRA 84 (1995), Aurillo, Jr. v. Francisco, 235 SCRA 283 (1994).

9. Te v. Judge Perez, A.M. No. MTJ-00-1286, January 21, 2002, citing Bangayan v. Butacon, 345 SCRA 301, 306 (2000).

10. Supra., note 1 at 114.

11. Beso v. Daguman, 323 SCRA 566 (2000).

12. Pineda, Legal and Judicial Ethics, p. 397 (1999).

13. Creer v. Fabillar, A.M. No. MTJ-99-1218, August 14, 2000.

14. 344 SCRA 159 (2000); Tabao v. Espina, 309 SCRA 273 (1999).

Top of Page