SULU ISLAMIC ASSOCIATION OF MASJID LAMBAYONG, COMPLAINANT, VS. JUDGE NABDAR J. MALIK, MUNICIPAL TRIAL COURT, JOLO, SULU, RESPONDENT.

On June 5, 1992, Imam Hashim Abdulla, Imam Hadji Tambing, Hatib
Illih Musa, as officers and members of the Sulu Islamic Association of Masjid
Lambayong, filed an administrative complaint against Judge Nabdar J. Malik,
Presiding Judge of the Municipal Trial Court in Jolo, Sulu, charging him with
violation of R.A. 2260 (An Act To Amend and Revise the Laws Relative to
Philippine Civil Service) and serious misconduct committed as follows:

1. Nepotism
– by recommending the appointment of Omar Kalim, his nephew, and Hanina Kalim,
his niece-in-law, as process server and clerk, respectively;

2. Graft and Corruption –
by using Omar Kalim to extort money from court litigants, e.g.:

a. P13,000.00 in exchange
for the freedom of Datu Tating Erwin, who had been charged as an accesso­ry in
a robbery case;

b. demanding P10,000.00
thru a certain P/Sgt. Duran Abam Tating, Erwin’s broth­er-in-law; and

c. blackmailing liti­gants;

3. Immorality – engaging in an adulterous
relationship with another woman with whom he has three children.

In his letter/comment dated October 19, 1992, Judge Malik alleged
that the complainants are fictitious persons and that the charges against him
are false and fabricated. He asked that
the complaint be dismissed.

The Supreme Court referred the case to Judge Harun Ismael of the
Regional Trial Court of Jolo, Sulu, for investigation, report and
recommendation.

On April 7, 1993, Judge Malik addressed a letter to Judge Ismael,
enclosing affidavits of four witnesses, namely: (1) Imam Hashim Abdulla; (2) Mrs. Jamura Tambing; (3) Mr. Mirad
Tambing; and (4) Marina Balais Malik.

He alleged that Datu Tating Erwin is the nephew of Kaya B. Sarabi
who had previously filed “many fabricated charges” (p. 235, Rollo) against him
which had been dismissed by the Supreme Court. He implied that Erwin was being used by Sarabi and that the affidavit
was false.

Imam Hashim Abdulla, one of the “complainants,” denied any
knowledge of, or participation in, the filing of the complaint against Judge
Malik. He disowned his supposed
signature in the complaint as a forgery. He alleged that Judge Malik is his neighbor and he knows him to be
“honest and righteous” (p. 238, Rollo).

Illih Musad, another “complainant,” died on February 24, 1991
yet. His widow, Jamura Musad, executed
an affidavit certifying that she knows Judge Malik personally because he has
been her neighbor for many years. It
was physically impossible for her late husband to have signed the complaint
dated June 5, 1992 against Judge Malik because her husband died more than a
year before the signing of the complaint.

The signature of another complainant, Imam Hadji Tambing Arong,
was impugned by his son, Mirad Tambing. He said his father could not have signed the complaint because he had
been sick and bedridden for five years before his death. In fact, he died on August 15, 1992.

Marina Balais Malik, wife of respondent Judge N. Malik, disowned
her supposed affidavit which she supposedly signed before Notary Public
Attorney Rodrigo Martinez in Zamboanga City, in February 1991 (p. 250, Rollo).

She, however, denied having appeared before the Notary Public to
subscribe said affidavit which attacks the “honor and integrity of her beloved
husband” (p. 251, Rollo).

After conducting an investigation of the charges, Judge Ismael on
May 25, 1993, submitted a Report to the court. Of the three (3) charges against Judge Malik, only the charge of
nepotism holds.

On the charge of graft and corruption, Judge Ismael observed
that:

“x x x practically all
of those who testified denied any knowledge
of any particular instance that Judge
Malik extorted or received bribe money
from litigants having pending cases before his sala. Mrs. Beatriz Abbas, Clerk of Court II of Municipal Trial Court of Jolo,
Sulu presided by Judge Malik, testified that the people praised highly Judge
Malik because of his honesty. She
attests to this be­cause she was, at one time told by Judge Malik to return to
litigants something which litigants wanted to give to Judge Malik. However, one of those who testified
confided, but refused to be quoted in
his testimo­ny for fear of reprisal, suggested that in order for the Court to
be spared of any ill suspicion, Omar Kalim should be transferred to another
Municipal Circuit Trial Court branch where Judge Malik has no supervision. Accordingly, it’s just not nice and good
looking to have Omar Kalim where he is now. This information is worth considering. The only obstacle is Judge Malik is Acting Judge in all Municipal
Circuit Trial Court branches except Siasi, Sulu. However, no hard evidence was adduced
linking Judge Malik to graft and corruption
as alleged in the complaint.” (p. 51, Rollo.)

With regard to the charge of adultery or immorality, the
investigating Judge observed that under Muslim Law the marriage of a Tausug
(the tribal group to which Judge Malik belongs) to as many as four (4) wives is
sanctioned
provided the man can support them and does not neglect any of them. Judge Ismael’s report states:

“As regards the claim that Judge Malik has two (2) wives, all those
who testified at the investigations confirmed the same. Mrs. Marina Balais-Malik, the first wife,
admitted that Judge Malik has a second wife (Lourdes) but she does not mind
them since she and her children are financially taken cared of – all their eight children are
going to school and three (3) have reached
college level. Moreover, under the
Muslim Shari’a (Law) marrying more than one wife is allowed provided the man
can afford financially and can give equity and justice to the wives. Mrs. Marina Balais Malik claims that Judge
Malik is financially capable.

The Holy Qur’an (the Muslim Holy Scripture) provides in Surah 4:3
(Chapter 4, verse 3) thus:

‘3.  And if ye fear that ye shall not Be able to
deal justly With the orphans, Marry women of your choice
Two, or three, or four; But if ye fear that ye shall not
Be able to deal justly (with them)
Then only one, or That which your right hand possess That
will be more suitable, To prevent you From doing injustice.’

“Strictly, Islam enjoins only monogamous marriage. While Islam allows marrying more than one
wife, it however sets limitation, i.e., not more than four at a time and the
man be financially capable in order for him to provide equity and justice to
the wives. These revela­tions came to
the Prophet Muhammad after the Battle of Uhud whereby many Mujahideens
died thus leaving more widows and orphans. This particular revelation serve, as it was then, as a remedy to the
impending situation of the widows and orphans left unattended. By allow­ing the mujahideens to take
them in marriage helped prevent them from engaging in illicit marital rela­tions
like fornication. Marrying more than
one wife does
not per se create any stint (sic) of social immorality, since this marriage,
like any other ordinary marriages, is made public and are (sic) accept­ed by
the people in the community. Any issue
out of this marriage is legitimate before the eyes of the Almighty Lord and the
people.

“True, Islam sanctions such marriage but very few Muslim males
practice it. Worst yet today, however,
this permissible marriage is used as a means of building social standing in the
community. As a judge, there is no
doubt that Judge Malik has acquired higher respect and social standing in the
community, and is deemed financially capable. Hence, he can marry more than one wife in accordance with the Muslim
Shari’a.” (pp. 49-50, Rollo.)

Mrs. Marina Malik consented to her husband’s wish to contract a
second marriage because he does not neglect
to support her children. Three
of them are in college. She has no
ill-feelings against Malik’s second wife, who married her husband under Muslim
law. Since Art. 180 of P.D. No. 1083,
otherwise known as the Code of Muslim Personal Laws of the Philippines,
provides that the penal laws relative to the crime of bigamy “shall not apply to a person married
x x x under Muslim Law,” it is not “immoral” by Muslim standards for Judge
Malik to marry a second time while his first marriage exists.

The charge of nepotism, however, is a different matter.

Judge Nabdar Malik was appointed and confirmed as Judge of Municipal
Court of Jolo on May 29,
1972. He assumed office on May 29,
1972.^[1]
On June 16, 1978, he recommended the appointment of his nephew, Omar Kalim, the
son of his older sister, Nuridjam Ambutong, to the position of Janitor in his
court. He falsely certified that Kalim
was not related to him by affinity or consan­guinity within the third degree:

“This is to certify that Mr. Omar Kalim, a proposed appointee for
the position of Janitor in the Municipal Court of Jolo, Branch 1, is not
related to the undersigned within the
third degree either by affinity or consanguinity.

“xxx               xxx                 xxx.

NABDAR J. MALIK

Municipal Judge”

(Certification dated June 16, 1978, 201 File.)

The truth is that, being his sister’s son, Kalim is related to
Judge Malik by consanguinity within the third degree.

Later, Omar Kalim was promoted as MTC Aide and still later, in
1985, he became a Process Server^[2]. In support of Kalim’s promotion, Judge Malik
again issued a false certification that Kalim is not related to him by affinity
or consanguinity.

“This is to certify that MR. OMAR N. KALIM, a proposed appointee
for the position of MTC PROCESS SERVER in the Office of the Municipal Trial Court of Jolo, is not related to
the undersigned appointed official either by affinity or consanguinity.”
(Certification dated January 2, 1985, 201 File.)

Similarly, Kalim falsely denied his relationship to Judge Malik
in answer to question No. 23 in his Personal Data Sheet.

“Are you related within the third degree of consanguinity or of
affinity to the appointing or recom­mending authority, or to the chief of
bureau or office, or to the person who has immediate supervision over you in
the Office, Bureau or Ministry you are to be appointed?”

His answer was “No.”

The prohibition against nepotism in the government service is
found in Section 59, Chapter 7, Book V of the Administrative Code of 1987 which
reads:

Sec. 59. Nepotism. – (1) All appointments in the national,
provincial, city and municipal governments or in any branch or instrumentality
thereof, including government-owned or controlled corporations, made in favor
of a relative of the appointing or recom­mending authority, or of the chief of
the bureau or office, or of the persons exercising immediate super­vision over
him, are hereby prohib­ited.

“As used in this Section, the word ‘relative’ and members of the
family referred to are those related within the third degree either of
consanguinity or of affinity.

“(2) The following
are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential
capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of
the Philippines: Provided, however,
That in each particular instance full report of such appointment shall be made to
the Commission.

“The restriction mentioned in subsection (1) shall not be applica­ble
to the case of a member of any family who, after his or her appointment to any
position in an office or bureau, contracts marriage with someone in the same
office or bureau, in which event the employ­ment or retention therein of both
husband and wife may be allowed.

“(3) In order to “give immediate effect to these
provisions, cases of previous ap­pointments which are in contraven­tion hereof
shall be corrected by transfer, and pending such transfer, no promotion or
salary increase shall be allowed in favor of the relative or relatives who were appointed in violation of these
provisions.”

In the case of Layno vs. People (213 SCRA
686, 696-697), the incumbent Mayor of Lianga, Surigao, ap­pointed his
legitimate son as Meat Inspector, but certi­fied that the appointee was not a
relative by consan­guinity or affinity. He was prosecuted criminally and punished for falsification of public document (Art.
171, par. 4 of the RPC).

One of the legal issues raised was whether the appointing
authority is obliged to disclose his true relationship to the appointee. That question was answered by this Court in the affirmative:

“The law on nepotism, as provided in Section 49(a) of PD No. 807,
prohibits the appointing or recommending authority from making any appointment
in the national, provincial, city or municipal gov­ernments or in any branch or
instru­mentality thereof, including govern­ment-owned or controlled corpora­tions,
in favor of his (appointing or recommending authority’s) rela­tive within the
third degree of consanguinity or affinity. Thus, in order to guarantee that
the law is duly observed, it is
required, among others, that the appointment
paper should be accompanied by a certification
of the appointing or recom­mending authority
stating therein that he is not related
to the ap­pointee within the third degree
of consanguinity or affinity. Although Section 49(a) of PD No. 807 does
not explicitly provide that the appoint­ing or recommending authority shall
disclose his true relationship with the appointee in the form of a
certification, nonetheless, in the light of the rulings in the afore-cited
cases, the legal obligation of the appointing
or recommending authority to state the true facts required to be stated in the
certi­fication is inherent in the law on prohibition against nepotism and the
nature and purpose of such certifi­cation.

“xxx               xxx                 xxx.

“x x x. As aptly observed by
the Solicitor General in his Memo­randum –

“The general purpose of PD No. 807 is to ‘insure and promote
the constitutional mandate that appointments
in the Civil Service shall be made
only according to merit and fitness,
to provide within the public service a progressive system of personnel
administration, and to adopt measures to promote moral and the highest degree
of responsibili­ty, integrity, loyalty, efficiency, and professionalism in the
Civil Service.’ (Section 2, PD No. 807.)

“The civil service laws are designed to eradicate the system of
appointment to public office based on political considerations and to eliminate
as far as practicable the element of partisanship and personal
favoritism in making appointments. These laws intend to establish a merit
system of fitness and efficiency as the
basis of the appointment; to secure more competent employees, and thereby
promote better government. (Meran vs.
Edralin, 154 SCRA 238 [1987]).

“Indeed, there are many cases wherein local elective officials,
upon assumption to office, wield their new-found power by appointing their own
proteges, and even rela­tives, in violation of civil service laws and
regulations. Victory at the polls
should not be taken as authority for the commission of such illegal acts. (Mendoza vs. Quisumb­ing, G.R. No. 78053,
June 4, 1990, citing Nemenzo vs. Sabillano, 25 SCRA 1 [1968]).”

By making untruthful statements and certifications regarding
their relationship to each other, Judge Malik and his nephew, Omar Kalim,
committed the crime of falsification under Article 171, subparagraph 4 of the
Revised Penal Code.

Nepotism is a ground for disciplinary action under Section 46,
subpar. 30, Chapter 5, Book V of the Admin­istrative Code of 1987:

“Sec. 46. Discipline: Gener­al Provisions. – (a)
No officer or employee in the Civil Service shall be suspended or dismissed
except for cause as provided by law and after due process.

“(b) The following shall be grounds for disciplinary action:

“xxx               xxx                 xxx

“(30) Nepotism as defined in Section 59 of this Title.”

Section 67 (Penal Provision) of the Administrative Code provides
the following penalty therefor:

“Sec. 67. Penal
Provision. – Whoever makes any
appointment or employs any person in violation of any provision of this Title
or the rules made thereunder or whoever commits fraud, deceit or intentional
misrepresentation of material facts concerning
other civil service matters, or whoever violates, re­fuses or
neglects to comply with any of such provisions or rules,
shall upon conviction be punished by a fine not exceeding
one thousand pesos or by imprisonment
not exceed­ing six (6) months, or both
such fine and imprisonment in the discretion of the
court.” (Executive Order 292, Underscoring ours.)

Disclosure of one’s relatives in the Government is required of
every public official or employee:

“Sec. 8. x x x

“(B) Identification and disclosure of relatives. – It shall be the duty of every public official or employee
to identify and dis­close, to the best of his knowledge and information, his
relatives in the Government in the form, manner and frequency prescribed by the Civil Service Commission.” (Sec. 8 (B), Rep. Act 6713 [Code of
Conduct and Ethical Standards for Public Officials and Employees].)

Judge Malik did not merely fail to disclose his relationship to
Omar Kalim, but he falsely certified that he was not related to the latter.

Kalim, likewise, falsely denied his relationship to Judge
Malik. Their acts violated the Code of
Conduct and Ethical Standards for Public Officials and Employees and are
punishable under Section 11 of the Code, with removal from office.

“Sec. 11. Penalties. – (a) Any public official or employee, regardless of whether or not
he holds office or employment in a casual, temporary, holdover, perma­nent or
regular capacity, committing any violation of this Act shall be punished with a
fine not exceeding the equivalent of six (6) months’ salary or suspension not
exceeding one (1) year, or removal depending on the gravity of the offense
after due notice and hearing by the appro­priate body or agency. If the violation is punishable by a heavier
penalty under another law, he shall be
prosecuted under the latter statute. Violations of Sections 7, 8 or 9 of this Act shall be punisha­ble with
imprisonment not exceeding five (5) years, or a fine not exceeding five
thousand pesos (P5,000.00), or both, and, in the discretion of the court of
competent jurisdiction, disqualification to hold public office.

“(b) Any violation
hereof proven in a proper administrative proceeding shall be
sufficient cause for removal or dismissal
of a public official or employee,
even if no criminal prosecution is instituted against him.” (Emphasis
supplied.)

Section 23, Rule XIV of the Omnibus Rules Imple­menting Book V of
Executive Order No. 292 and Other Pertinent Civil Service Laws, classifies
nepotism as a grave offense punishable with dismissal from the
serv­ice, even as a first offense.

“Sec. 23. Administrative
offenses with its corresponding penalties are classified into grave, less
grave, and light, depending on the gravity of its nature and ef­fects of said
acts on the government service.

“The  following are grave
offenses with its corresponding penalties:

“xxx               xxx                 xxx

“(m) Nepotism [1st Offense, Dismissal]”

Morever, by committing nepotism and covering up his malfeasance
by falsely disavowing any relationship to the appointee, Judge Malik is also
guilty of gross ignorance of the law and falsification and violated the Code of
Judicial Conduct which requires that “a judge shall not allow family, social,
or other relationship to influence his judicial conduct or judgment” (Canon 2,
Rule 2.03) and enjoins a judge to “be faithful to the law” (Canon 3, Rule
3.01). Violations of the Code of Judicial Conduct are
serious offenses punishable by any of the following sanctions under Section
10-A, Rule 140 of the Rules of Court, as amended:

“1.  Dismissal from the service with forfeiture of
benefits (except accrued leaves) and disqualification from reinstatement or
appointment to any public office including a government-owned or controlled
corporation;

“2.  Suspension for three (3) to six (6) months
without salary and benefits; or

“3.  A fine
of not less than P20,000.00 but not more than P40,000.00.”

With respect to Judge Malik’s niece-in-law, Hanina M. Hailidani
Kalim, her appointment did not violate the law against nepotism.

Hanina began her service in the judiciary on August 6, 1973. She was then known as “Mrs. Hanina M.
Hailidani-Ainin,” for she was married to Hadji Abubakar Ainin, clerk of the
Municipal Court, Branch 1. Omar Kalim entered the service in 1978 or
five years after Hanina. She was
already a widow when she and Kalim met and married in a ceremony performed by
Judge N. Malik on July 24, 1982. Evidently, when Hanina was appointed as a member of Judge Malik’s staff
in 1973, she was not yet related to him by affinity or consanguinity. Her marriage to Omar Kalim after both had
entered the govern­ment service is expressly excluded from the prohibition
against nepotism. Section 59 of the
Administrative Code of 1987 provides that:

“Sec. 59. x x x.

“(2) x x x “The
restriction mentioned in subsection
(1) shall not be applicable to the case of a member of any family who, after
his or her appointment to any position in an office or bureau, contracts
marriage with someone in the same office or bureau, in which event the employment or retention therein of both
husband and wife may be al­lowed.”

WHEREFORE, the Court finds Judge Nabdar J. Malik, GUILTY
of nepotism, falsification and violation of the Code of Judicial Conduct. His Process Server and nephew, Omar Kalim,
is likewise found GUILTY of falsification and deceit. The Court hereby orders their DISMISSAL from the service, with
prejudice to re-employ­ment in the government, including government-owned or
controlled corporations, with forfeiture of all retire­ment benefits and
privileges (if any), except the money value of their earned leave credits. Respondent Judge is ORDERED to cease and
desist immediately from rendering any order or decision, or continuing any
proceedings, in any case whatsoever, effective immediately upon receipt of a copy of this Resolution.

SO ORDERED.

Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr.,
Romero, Nocon, Bellosillo, Melo, Quiason, Puno, and
Vitug, JJ., concur.

Narvasa, C.J. and Feliciano,
J., on leave.

^[1]
Certification of the Commission on Appointments dated April 13, 1972; Service
Record in the Judiciary. Telegram sent
by Judge Malik to the Secretary of Jus­tice, Personal Files.

^[2]
Service Record dated July 13, 1987, Certified correct by Nabdar Malik.