PERLA PAO, ASSISTED BY HER MOTHER EMERENCIANA V. CUNANAN, COMPLAINANT, VS. JESUS S. SILO, RESPONDENT.

Pao versus Silo

The Case

This is an administrative case for disbarment or suspension brought by Perla Pao, assisted by her mother Emerenciana Cunanan, against Attorney Jesus Silo, a member of the Philippine Bar. The complaint charges the respondent with grossly immoral conduct, arising from an alleged sexual assault on the complainant on the night of December 16, 1966, when she was seventeen years old and single, as a result of which she became pregnant and gave birth to a child. The case matters because it is the Court's classic statement on the quantum of proof in disbarment proceedings: the power to disbar is exercised with great caution, and only upon a clear preponderance of evidence, because an attorney is presumed innocent of the charges against him until that presumption is overthrown by convincing proof.

Procedural History

The complainant filed a verified complaint with the Supreme Court charging the respondent with grossly immoral conduct. In its resolution of January 16, 1968, the Court referred the case to the Solicitor General for investigation, report, and recommendation. The investigation was first conducted by First Assistant Solicitor General Frine Asprer Zaballero, who heard the complainant and her mother from April 1968 until June 1969. Because that investigator left for abroad, the investigation was reassigned in May 1970 to another Assistant Solicitor General, who heard the continuation of the complainant's direct examination and a portion of her cross-examination. The complainant and her counsel repeatedly failed to appear at the rescheduled hearings, and her mother presented an affidavit of desistance purportedly signed by the complainant. The Solicitor General granted the respondent's motion to strike the complainant's testimony from the record because the respondent's counsel could not continue his cross-examination owing to her failure to appear, and recommended dismissal of the case and the exoneration of the respondent. The case was thus resolved by the Supreme Court itself, on the record built before the Solicitor General.

Facts

According to the complaint, on the night of December 16, 1966, the complainant's mother allowed her to go with Jose Sarte, who was using the alias Joseph Schneider, to attend a conference in connection with a forthcoming film production entitled The Pearl and the Sun, to be filmed in Japan, in which the complainant was promised a role. The respondent was to go with them upon his representation that he was working in the Japanese Embassy and would prepare her passport for the trip. Relying on these representations, the complainant went with them in Sarte's car, together with another girl, Josie Galapin. Instead of a conference, they were taken to the Winston Motel in Pasay City, where, the complainant alleged, the respondent forced her into a room and, taking advantage of his superior strength and by means of force and intimidation, had carnal knowledge of her. She became pregnant and gave birth to a baby boy on September 3, 1967.

In his answer, the respondent denied the material averments and claimed the complaint was part of a malicious scheme to extort money from him and Sarte. He attached annexes tending to discredit the complaint: a baptismal certificate showing the complainant was born on February 5, 1948, making her eighteen years, ten months, and eleven days old on December 16, 1966, and not seventeen as alleged; a certificate of the local civil registrar of Santa Rita, Pampanga, attesting to the destruction by fire in 1951 of certain birth records; a copy of the birth certificate of Jesus Cunanan Pao showing the child was born on September 3, 1967 and was the legitimate child of Perla Cunanan and Jose Pao; an affidavit of Sarte denying any abuse on December 16, 1966 and stating that in the first week of January 1967 he, the respondent, Josie Galapin, and the complainant merely went to a movie house; and an affidavit of Josie Galapin corroborating Sarte and denying that she and the complainant were ever raped.

At the investigation, the complainant and her counsel repeatedly failed to appear despite several resettings, while the respondent and his counsel appeared each time. The complainant's mother presented an affidavit of desistance purportedly signed by the complainant, stating that the filing of the complaint was due to a mistake and that she had never been raped by the respondent, and volunteered that her daughter was now happily married to a man from Davao City. The respondent presented a certified copy of the joint decision of the Court of First Instance of Rizal dismissing the criminal cases for rape against Sarte and against the respondent.

Issues

• Whether or not the affidavit of desistance filed by the complainant through her mother bars the disbarment proceedings or is of decisive import.
• Whether or not the striking from the record of the complainant's testimony in chief, because of her repeated failure to appear for cross-examination, was warranted.
• Whether or not the charge of grossly immoral conduct against the respondent has been clearly established by a clear preponderance of evidence.

Applicable Provisions

The Court states the rule that a disbarment case proceeds regardless of the complainant's interest or lack of interest:

A case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainants, if the facts proven so warrant.

This rule is why the affidavit of desistance did not automatically end the case, and the Court still had to examine the record.

The Court also states the standard that governs the whole case:

What matters is whether, on the basis of the facts borne out by the record, the charge of deceit and grossly immoral conduct has been duly proved.

This fixes the inquiry on the evidence in the record rather than on the complainant's wishes.

Ruling

On the first issue, the Court held that the affidavit of desistance is not of decisive import. A suspension or disbarment case may proceed regardless of the interest or lack of interest of the complainants, if the facts proven so warrant, for what matters is whether, on the basis of the facts borne out by the record, the charge of deceit and grossly immoral conduct has been duly proved. The complainant's election to desist notwithstanding, the Court had to determine from the record whether the charges were convincingly proved.

On the second issue, the Court held that the striking from the record of the complainant's testimony in chief was warranted. Because of her refusal to appear, the respondent was not able to cross-examine her on matters relating to the annexes attached to his answer, which documents tended to discredit the factual basis of the charges. The only evidence left for the complainant was therefore her mother's testimony, and that testimony, standing alone, did not suffice to support the charges. What would have been crucial, given the nature of the charges, was the testimony of the complainant herself, but it was unavailing.

On the third issue, the Court held that the charges were not clearly established. It laid down the governing standard:

For the power to disbar attorneys ought always to be exercised with great caution, and should follow only where there is a clear preponderance of evidence against the respondent.

The Court added that the presumption is, until overthrown by convincing proof, that an attorney is innocent of the charges against him and has performed his duty as an officer of the court in conformity with his oath.

Doctrine

A disbarment or suspension case is not a private action that rises or falls with the complainant's whim. It may proceed regardless of the interest or lack of interest of the complainants, if the facts proven so warrant, because what matters is whether, on the basis of the facts borne out by the record, the charge of deceit and grossly immoral conduct has been duly proved. An affidavit of desistance does not bind the Court.

The quantum of proof is a clear preponderance of evidence. The power to disbar attorneys ought always to be exercised with great caution, and should follow only where there is a clear preponderance of evidence against the respondent. The attorney is presumed innocent of the charges until that presumption is overthrown by convincing proof, and he is presumed to have performed his duty as an officer of the court in conformity with his oath.

Finally, the complainant's own testimony is indispensable where the charge rests on private acts. If the complainant repeatedly fails to appear for cross-examination, the striking of her testimony in chief is warranted, and the remaining evidence, such as a mother's testimony standing alone, will not suffice.

Disposition

The complaint was dismissed and the respondent was exonerated of the charges, and a copy of the resolution was ordered filed with his record in the Roll of Attorneys.

Remember This

Memorize the line: the power to disbar is exercised with great caution and follows only upon a clear preponderance of evidence, for the attorney is presumed innocent until convincing proof overthrows that presumption. Examiners use this case for the quantum of proof in disbarment and for the rule that an affidavit of desistance does not divest the Court of its power to discipline a lawyer.