FACTORAN V. BARCELONA JR.
AC No. 11069
June 08, 2016
Complainant filed a complaint for qualified theft against Mendoza (et al) before the Provincial Prosecution Office of Alabel, Sarangani Province. The case was docketed as I.S. No. 04-211 and assigned for preliminary investigation to Prosecutor Faisal D. Amerkhan (Prosecutor Amerkhan).
Prosecutor Amerkhan forwarded the records of the case, together with his Resolution recommending the prosecution of Mendoza, et al. and the corresponding Information, to respondent for his approval and signature. However, respondent neither approved nor signed the resolution. Instead, he removed the case records from the office of the Provincial Prosecutor and brought them to his residence, where they were kept in his custody. It appears that the respondents in I.S. No. 04-211 were personally known to respondent, as Elezar is his cousin, while Mendoza, Sarcon, Arro, and Montero are his close friends.
Aggrieved, complainant soughtthe intervention of then Department of Justice (DOJ). Unfortunately, State Prosecutor Pinote could not take appropriate action on I.S. No. 04-211 as the case records were still in the possession of respondent who failed to turn them over despite the directive to do so.
On July 20, 2005, complainant learned that the case records had been turned over to the Provincial Prosecution Office but without Prosecutor Amerkhan's Resolution and Information. Neither did respondent approve nor act upon the same, prompting complainant to file the present complaint for disbarment against him.
Whether or not respondent grounds exist to hold respondent administratively liable.
Yes. Rule 6.02 - A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties.
In this case, respondent's accountability regarding I.S. No. 04-211 has been duly established. When Prosecutor Amerkhan forwarded to respondent the case records of I.S. No. 04-211, together with the resolution recommending the filing of the appropriate information in court, respondent failed to take action thereon, as records are bereft of evidence showing that he either approved or disapproved it. the Court notes respondent's defense that complainant was already aware beforehand that he (respondent) was inclined to disapprove the resolution prepared by Prosecutor Amerkhan, whom he ordered to conduct a clarificatory hearing on the case.
Absent any intelligent explanation as regards his lapses in the handling of I.S. No. 04-211 and his failure to timely return the case records thereof for further action, despite the directive to do so, it can only be inferred that respondent not merely failed, but obstinately and deliberately refused to perform his duties as a prosecutor. Such refusal, under the circumstances, evidently worked to the advantage of the respondents in I.S. No. 04-21.1 - which included respondent's cousin, Elezar - as the absence of the case records in the office of the Provincial Prosecutor resulted in the delay in the filing of the appropriate criminal information in court against them. Hence, it is apparent that respondent used his public position as a prosecutor to advance and protect the private interest of his relative, which is clearly proscribed in the CPR.
