I am digesting the salient parts of the inaugural speech of the 44th US president, Barack Obama, in relation to the rule of law and social justice, to help predict how his leadership in the next 4 years might influence these 2 serious areas of concern. Thus:
“We remain a young nation, but in the words of Scripture, the time has come to set aside childish things. The time has come to reaffirm our enduring spirit; to choose our better history; to carry forward that precious gift, that noble idea, passed on from generation to generation: the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness.”
“What the cynics fail to understand is that the ground has shifted beneath them -- that the stale political arguments that have consumed us for so long no longer apply. The question we ask today is not whether our government is too big or too small, but whether it works -- whether it helps families find jobs at a decent wage, care they can afford, a retirement that is dignified. Where the answer is yes, we intend to move forward. Where the answer is no, programs will end. And those of us who manage the public's dollars will be held to account -- to spend wisely, reform bad habits, and do our business in the light of day -- because only then can we restore the vital trust between a people and their government.”
“As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake. And so to all other peoples and governments who are watching today, from the grandest capitals to the small village where my father was born: Know that America is a friend of each nation and every man, woman and child who seeks a future of peace and dignity, and that we are ready to lead once more.”
“Recall that earlier generations faced down fascism and communism not just with missiles and tanks, but with sturdy alliances and enduring convictions. They understood that our power alone cannot protect us, nor does it entitle us to do as we please. Instead, they knew that our power grows through its prudent use; our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint.”
“x x x. We will begin to responsibly leave Iraq to its people, and forge a hard-earned peace in Afghanistan. With old friends and former foes, we will work tirelessly to lessen the nuclear threat, and roll back the specter of a warming planet. We will not apologize for our way of life, nor will we waver in its defense, and for those who seek to advance their aims by inducing terror and slaughtering innocents, we say to you now that our spirit is stronger and cannot be broken; you cannot outlast us, and we will defeat you.”
“For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and nonbelievers. We are shaped by every language and culture, drawn from every end of this Earth; and because we have tasted the bitter swill of civil war and segregation, and emerged from that dark chapter stronger and more united, we cannot help but believe that the old hatreds shall someday pass; that the lines of tribe shall soon dissolve; that as the world grows smaller, our common humanity shall reveal itself; and that America must play its role in ushering in a new era of peace.”
“To the Muslim world, we seek a new way forward, based on mutual interest and mutual respect. To those leaders around the globe who seek to sow conflict, or blame their society's ills on the West: Know that your people will judge you on what you can build, not what you destroy. To those who cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history; but that we will extend a hand if you are willing to unclench your fist.”
“To the people of poor nations, we pledge to work alongside you to make your farms flourish and let clean waters flow; to nourish starved bodies and feed hungry minds. And to those nations like ours that enjoy relative plenty, we say we can no longer afford indifference to suffering outside our borders; nor can we consume the world's resources without regard to effect. For the world has changed, and we must change with it.”
“Our challenges may be new. The instruments with which we meet them may be new. But those values upon which our success depends -- hard work and honesty, courage and fair play, tolerance and curiosity, loyalty and patriotism -- these things are old. These things are true. They have been the quiet force of progress throughout our history. What is demanded then is a return to these truths. What is required of us now is a new era of responsibility -- a recognition, on the part of every American, that we have duties to ourselves, our nation and the world; duties that we do not grudgingly accept but rather seize gladly, firm in the knowledge that there is nothing so satisfying to the spirit, so defining of our character, than giving our all to a difficult task.”
http://www.cnn.com/2009/POLITICS/01/20/obama.politics/index.html
I am not a pro bono lawyer. See the PAO or IBP chapter near you for free legal aid.
Monday, January 26, 2009
16 judges killed
Sixteen Filipino judges have been killed since 1999, forcing the Philippine Supreme Court to exploit human greed in helping solve the murders.
Below is a news item issued by the Supreme Court announcing a P1 million fund to serve as the source of rewards for tipsters.
Court News Flash December 2008
See: www.supremecourt.gov.ph
PhP1Million Reward for Informants, Witnesses in Judge’s Killings; Security Training for Judges Continues
Posted: December 11, 2008
By Jay B. Rempillo
The Judiciary has set aside a total of PhP1 million as reward money for informants and witnesses whose information and testimonies can lead to the arrest, prosecution, and conviction of the perpetrators and masterminds of the senseless killings and attempts on the life of our magistrates.
Upon the recommendation of the Supreme Court Committee on Security, the Court has approved the grant of such incentives and rewards. The million-peso reward fund comes from the Philippine Judges Foundation, Inc. (PJFI), headed by retired Chief Justice Andres R. Narvasa and retired Court of Appeals Justice Mariano M. Umali, PJFI’s Chairperson and President, respectively.
Justice Presbitero J. Velasco, Jr., Chairperson of the SC Committee on Security, has announced that a reward of PhP100,000 will be given to informants/witnesses for information leading to the identity of a person threatening or killing any member of the Judiciary. Another PhP100,000 will be given upon the latter’s conviction.
Informants/witnesses may contact the Supreme Court through the Office of Assistant Court Administrator Edwin A. Villasor at (+632) 5216809, or Atty. Allan Contado and Mr. Jason Domingo of the National Bureau of Investigation Task Force for Judiciary Protection at (+632) 5238231.
Sixteen judges have been killed since 1999, the latest victim being Judge Philip G. Labastida of the San Juan Metropolitan Trial Court (MeTC), who was found dead with several stab wounds in his Quezon City house last December 7.
Chief Justice Reynato S. Puno has condemned Judge’s Labastida’s killing and called for the early resolution of the case. “The entire Judiciary strongly condemns the killing of Judge Labastida. I am urging the police authorities to exert all efforts for the immediate apprehension of those responsible for Judge Labastida’s death,” Chief Justice Puno said.
The foregoing development was welcomed by the participants in the Personal Security Training for Judges which is being held at the Bohol Tropics Hotel in Tagbilaran City. Attendees to the seminar-training, which concludes today, December 11, are Regional Trial Court (RTC) judges, Municipal Trial Court (MTC) judges, Muncipal Trial Court in Cities (MTCC) judges, and Municipal Circuit Trial Court (MCTC) judges from Judicial Regions VI, VII, and VIII.
Judges Weigh in on Security
Judge Reynaldo B. Clemens of the Calbayog City RTC, Branch 31 said that the reward will encourage witnesses to come out to help solve the killings. His late colleague, Judge Roberto A. Navidad of the Calbayog City RTC, Branch 32, was shot dead by still unidentified suspect in January this year.
Judge Rowena Nieves Tan of the Balangiga, Eastern Samar RTC, Branch 42 shared the same sentiment. Judge Tan opined that witnesses to the killings of judges will be more encouraged to come out if they will be assured of their protection and security and not just be given financial rewards.
The judges-participants are oriented by able resource speakers from the National Bureau of Investigation (NBI) on crime prevention and basic first aid, threat awareness and personal security measures, among others.
Among other things, the participants were told that “it helps to have a little paranoia” to ensure their safety and protection.
Judge Clemens could not agree more saying that because of paranoia “you prepare for your safety.” For her part, however, Judge Tan said she would rather be “cautious but not paranoid” and “careful but to continue trusting people.”
Even a judge-couple differed in their opinions this time on the issue of judges’ carrying firearms for their protection. Judge Franklin J. Demonteverde of the Himamaylan City RTC, Branch 55, whose sala is located in the middle of a sugarcane plantation, gave an affirmative response, while his wife Judge Ma. Lorna P. Demonteverde of the Bacolod City MTCC, Branch 2 said she would rather not handle a gun. The Demonteverdes are also participants to the seminar.
Today, the participants will have firearms orientation, as well as marksmanship and technical proficiency training.
The Bohol training is the third of its kind since the signing of the Memorandum of Agreement on Judicial Security between the Supreme Court and the NBI last January. . It is a joint project by the Supreme Court Committee on Security, the Philippine Judicial Academy, and the Office of the Court Administrator, in coordination with the NBI.
The Security Trainings were first held in Davao last July and Baguio City last August after the signing of the Memorandum of Agreement on Judicial Security between the Supreme Court and the NBI last January.
Under the said MOA, the NBI created the Task Force Judiciary Protection as the bureau’s investigating and operating unit. The TFJP is composed of NBI personnel who will “provide prompt and effective protection to judges and justices needing or requesting protection due to threats to their personal safety arising from judicial work” and “investigate thoroughly without letup until final resolution all killings or attempted killings of judges and justices.”
Previous Security Measures for Judges
The Court has already drawn up earlier measures to curb the work-related killing of judges.
In August 2007, Chief Justice Puno, through Memorandum Circular No. 10-2007, provided an interim security procedure to improve the security for justices and judges pending the issuance of a comprehensive security protocol for the lower courts.
The above security protocol designates two focal persons, whom all justices and judges should immediately contact in case of threats to their security or safety. Assigned as contact persons are Deputy Court Administrator (DCA) Reuben dela Cruz and Atty. Allan C. Contado, who is also the Liaison Officer to the Supreme Court for the NBI’s Task Force for Judiciary Protection.
The protocol was based on the recommendations of the Committee on Security of the Judiciary in response to the recent spate of violence and killings against members of the Judiciary, especially judges in the lower courts who are continuously exposed to violent attacks.
In 2005, the Court approved the Guidelines for Detail of Court Personnel as Security of Judges. The Guidelines cover all Regional Trial Courts, Shari’a District Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Circuit Trial Courts, Municipal Trial Courts, and Shari’a Circuit Courts.
Under the Guidelines, a judge who receives a direct threat may apply with the Philippine National Police (PNP) for protective security. A direct threat is defined as “an actual threat of danger or physical harm.”
If the judge is under an imminent threat or if his request to the PNP is denied, he or she may apply with the Court’s Security Committee for authority to designate a member of the judge’s staff as an escort. An imminent threat is defined as “a probable danger of death or physical harm.” Only one employee of the court may be designated as an escort by the judge.
Likewise, the Court, through the Office of the Court Administrator, has inked a Memorandum of Agreement with the Philippine National Police in 2005 “to work and coordinate with each other in the processing of Permits to Carry Licensed Firearms of the members of the Judiciary,” especially those who are receiving death threats. With the MOA, judges are granted permits to carry their firearms even outside their stations.
Also, in 2004, the Court abolished the Heinous Crimes Courts “owing to the relatively low caseloads in the said courts and considering that the current set-up makes a Heinous Crime Court Judge easily identifiable, making him/her an easy prey to vindictive litigants.” Heinous crimes are now cognizable by all second-level courts.
Below is a news item issued by the Supreme Court announcing a P1 million fund to serve as the source of rewards for tipsters.
Court News Flash December 2008
See: www.supremecourt.gov.ph
PhP1Million Reward for Informants, Witnesses in Judge’s Killings; Security Training for Judges Continues
Posted: December 11, 2008
By Jay B. Rempillo
The Judiciary has set aside a total of PhP1 million as reward money for informants and witnesses whose information and testimonies can lead to the arrest, prosecution, and conviction of the perpetrators and masterminds of the senseless killings and attempts on the life of our magistrates.
Upon the recommendation of the Supreme Court Committee on Security, the Court has approved the grant of such incentives and rewards. The million-peso reward fund comes from the Philippine Judges Foundation, Inc. (PJFI), headed by retired Chief Justice Andres R. Narvasa and retired Court of Appeals Justice Mariano M. Umali, PJFI’s Chairperson and President, respectively.
Justice Presbitero J. Velasco, Jr., Chairperson of the SC Committee on Security, has announced that a reward of PhP100,000 will be given to informants/witnesses for information leading to the identity of a person threatening or killing any member of the Judiciary. Another PhP100,000 will be given upon the latter’s conviction.
Informants/witnesses may contact the Supreme Court through the Office of Assistant Court Administrator Edwin A. Villasor at (+632) 5216809, or Atty. Allan Contado and Mr. Jason Domingo of the National Bureau of Investigation Task Force for Judiciary Protection at (+632) 5238231.
Sixteen judges have been killed since 1999, the latest victim being Judge Philip G. Labastida of the San Juan Metropolitan Trial Court (MeTC), who was found dead with several stab wounds in his Quezon City house last December 7.
Chief Justice Reynato S. Puno has condemned Judge’s Labastida’s killing and called for the early resolution of the case. “The entire Judiciary strongly condemns the killing of Judge Labastida. I am urging the police authorities to exert all efforts for the immediate apprehension of those responsible for Judge Labastida’s death,” Chief Justice Puno said.
The foregoing development was welcomed by the participants in the Personal Security Training for Judges which is being held at the Bohol Tropics Hotel in Tagbilaran City. Attendees to the seminar-training, which concludes today, December 11, are Regional Trial Court (RTC) judges, Municipal Trial Court (MTC) judges, Muncipal Trial Court in Cities (MTCC) judges, and Municipal Circuit Trial Court (MCTC) judges from Judicial Regions VI, VII, and VIII.
Judges Weigh in on Security
Judge Reynaldo B. Clemens of the Calbayog City RTC, Branch 31 said that the reward will encourage witnesses to come out to help solve the killings. His late colleague, Judge Roberto A. Navidad of the Calbayog City RTC, Branch 32, was shot dead by still unidentified suspect in January this year.
Judge Rowena Nieves Tan of the Balangiga, Eastern Samar RTC, Branch 42 shared the same sentiment. Judge Tan opined that witnesses to the killings of judges will be more encouraged to come out if they will be assured of their protection and security and not just be given financial rewards.
The judges-participants are oriented by able resource speakers from the National Bureau of Investigation (NBI) on crime prevention and basic first aid, threat awareness and personal security measures, among others.
Among other things, the participants were told that “it helps to have a little paranoia” to ensure their safety and protection.
Judge Clemens could not agree more saying that because of paranoia “you prepare for your safety.” For her part, however, Judge Tan said she would rather be “cautious but not paranoid” and “careful but to continue trusting people.”
Even a judge-couple differed in their opinions this time on the issue of judges’ carrying firearms for their protection. Judge Franklin J. Demonteverde of the Himamaylan City RTC, Branch 55, whose sala is located in the middle of a sugarcane plantation, gave an affirmative response, while his wife Judge Ma. Lorna P. Demonteverde of the Bacolod City MTCC, Branch 2 said she would rather not handle a gun. The Demonteverdes are also participants to the seminar.
Today, the participants will have firearms orientation, as well as marksmanship and technical proficiency training.
The Bohol training is the third of its kind since the signing of the Memorandum of Agreement on Judicial Security between the Supreme Court and the NBI last January. . It is a joint project by the Supreme Court Committee on Security, the Philippine Judicial Academy, and the Office of the Court Administrator, in coordination with the NBI.
The Security Trainings were first held in Davao last July and Baguio City last August after the signing of the Memorandum of Agreement on Judicial Security between the Supreme Court and the NBI last January.
Under the said MOA, the NBI created the Task Force Judiciary Protection as the bureau’s investigating and operating unit. The TFJP is composed of NBI personnel who will “provide prompt and effective protection to judges and justices needing or requesting protection due to threats to their personal safety arising from judicial work” and “investigate thoroughly without letup until final resolution all killings or attempted killings of judges and justices.”
Previous Security Measures for Judges
The Court has already drawn up earlier measures to curb the work-related killing of judges.
In August 2007, Chief Justice Puno, through Memorandum Circular No. 10-2007, provided an interim security procedure to improve the security for justices and judges pending the issuance of a comprehensive security protocol for the lower courts.
The above security protocol designates two focal persons, whom all justices and judges should immediately contact in case of threats to their security or safety. Assigned as contact persons are Deputy Court Administrator (DCA) Reuben dela Cruz and Atty. Allan C. Contado, who is also the Liaison Officer to the Supreme Court for the NBI’s Task Force for Judiciary Protection.
The protocol was based on the recommendations of the Committee on Security of the Judiciary in response to the recent spate of violence and killings against members of the Judiciary, especially judges in the lower courts who are continuously exposed to violent attacks.
In 2005, the Court approved the Guidelines for Detail of Court Personnel as Security of Judges. The Guidelines cover all Regional Trial Courts, Shari’a District Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Circuit Trial Courts, Municipal Trial Courts, and Shari’a Circuit Courts.
Under the Guidelines, a judge who receives a direct threat may apply with the Philippine National Police (PNP) for protective security. A direct threat is defined as “an actual threat of danger or physical harm.”
If the judge is under an imminent threat or if his request to the PNP is denied, he or she may apply with the Court’s Security Committee for authority to designate a member of the judge’s staff as an escort. An imminent threat is defined as “a probable danger of death or physical harm.” Only one employee of the court may be designated as an escort by the judge.
Likewise, the Court, through the Office of the Court Administrator, has inked a Memorandum of Agreement with the Philippine National Police in 2005 “to work and coordinate with each other in the processing of Permits to Carry Licensed Firearms of the members of the Judiciary,” especially those who are receiving death threats. With the MOA, judges are granted permits to carry their firearms even outside their stations.
Also, in 2004, the Court abolished the Heinous Crimes Courts “owing to the relatively low caseloads in the said courts and considering that the current set-up makes a Heinous Crime Court Judge easily identifiable, making him/her an easy prey to vindictive litigants.” Heinous crimes are now cognizable by all second-level courts.
Ultimate dream
Most Filipinos, even the highly educated ones, have the wrong impression that the ultimate dream of a private lawyer is to be appointed in the Supreme Court.
This impression arises either out of arrogance on the part of the justices who claim such a theory or out of ignorance of insecure members of the Bench and the Bar, and of the Media, as to the sociology and the philosophy of the Bar.
Government service, e.g., appointment in the Supreme Court, is not the sole criterion of self-fulfillment of a member of the Bar. Enlightenment and selfless service to mankind are the true indicia of ultimate success and liberation of a private lawyer.
I, for one, prefer not to serve in Government or to be employed in multibillion corporations. I prefer to be on my own, serving the common Filipinos in my modest capacity as a private litigator. Employed corporate lawyers would brand private lawyers like me as “main street lawyers”, as distinguished from “Wall Street lawyers”.
I am happy and satisfied working alone as a legal advocate, doing justice one case at a time, teaching law one listener at a time, and living a modest and transparent life untainted by greed, hatred, envy, and illusions of grandeur and permanence. I own my own small law office. I control my own time and my own psychic income. I am my own boss. I can speak out my mind on current national and local issues without fear of violating any bureaucratic chain of command. Truly, I am most effective in the private sector as I carry the cudgel for the oppressed, the poor, the weak, and the ignorant.
At any rate, in a recent column of former Justice Isagani Cruz in the Philippine Daily Inquirer, he reacted to the system of public interviews by the Judicial and Bar Council (JBC) of nominees or applicants to vacancies in the Supreme Court, calling the same as humiliating and demeaning, to wit:
“I view the proceedings with distaste because they cheapen the applicant and even the Supreme Court itself where it is the position that must seek the person to occupy it and not vice versa. Prospective justices are not politicians whose highest qualification is popularity that may be won through the box office or other preposterous inducements, never mind integrity and competence. Judges require a higher level of intelligence, morality and, no less important, self-respect. I don’t think any of our eminent jurists in the past would have agreed to submit to the interrogation imposed by the JBC on persons hoping for its imprimatur.”
However, if we revert to the old system of commanding that nominees to the Supreme Court must undergo the partisan rigors before the congressional Commission on Appointments, it would seem to be a worse case, at first glance. In the end, though, such an arrangement is the lesser evil.
I would rather entrust the fate of the Supreme Court to elected lawmakers constituting a Commission on Appointments than rely on the decisions of unelected personalities appointed by the President to the JBC. Electoral mandate forms a sui generis human conscience that is preferable to that of well-connected and elitist appointees.
Below is the full text of his column.
Separate Opinion
The lawyer’s ultimate dream
By Isagani A. Cruz
Philippine Daily Inquirer
First Posted 00:07:00 01/25/2009
WITH the retirement of another justice of the Supreme Court next month, there is even now a scramble for the vacancy to be filled by the President from a list of nominees to be submitted by the Judicial and Bar Council. Aspirants must apply with their bio-data to the JBC so it can schedule their interview, or examination. No one, however prestigious, can expect to be just invited; he must ask to be nominated like all other applicants. The public can witness the competition where the candidates will be subjected to sundry questions to test their eligibility to sit on the highest tribunal.
I view the proceedings with distaste because they cheapen the applicant and even the Supreme Court itself where it is the position that must seek the person to occupy it and not vice versa. Prospective justices are not politicians whose highest qualification is popularity that may be won through the box office or other preposterous inducements, never mind integrity and competence. Judges require a higher level of intelligence, morality and, no less important, self-respect. I don’t think any of our eminent jurists in the past would have agreed to submit to the interrogation imposed by the JBC on persons hoping for its imprimatur.
When the Supreme Court was reorganized in 1986 after Edsa I, there was no JBC yet and no campaigning either. As far as I know, none of those appointed engaged in the cheap tactics now being employed by the present hopefuls. I myself can swear that I never approached even Speaker J. B. Laurel and Vice President Doy Laurel, who were my law partners then, or any one else for that matter. Malacañang learned about our qualifications not directly from us but from our public credentials and the people who knew us.
It was Executive Secretary Joker Arroyo, at that time only a casual acquaintance, who informed me of my appointment and the oath-taking the next day. That was the first time I met President Cory Aquino who had never seen me before and probably knew me principally from my résumé that Dean Rodolfo Palma of the UE College of Law, husband of Justice Cecilia Muñoz Palma, had requested from me.
I guess we were less aggressive then, or more decorous, because of the dignity of the office for which we were being considered. I recall that when, years later, I recommended the appointment to the Supreme Court of Adolfo Azcuna, who was then a stranger to me, he reacted with admirable modesty and gratefully declined the honor. (Somebody now would have grabbed it ferociously.) He was such a contrast to that insolent aspirant who practically commanded the JBC to “just nominate me and I’ll take care of Malacañang!” There was also that executive underling who sent a niece of mine to bring me a cake and request my help to make him a justice.
As a consultant of the JBC for several years, I was able to observe the many types of applicants it had to deal with and especially noticed the courtesy with which it received them. The docility of some of them must have been caused by their feeling that they were taking another bar test. The JBC now schedules some of its sessions in the South to make their search more economical to lawyers who may not have the means to prove in far-away Manila their capacity to be judges.
There are many extra-constitutional tests that applicants may flunk even if they pass all the constitutional requirements. In the exercise of its discretion, the JBC may reject persons who do not belong to the party in power, wear outmoded or loud clothes, are graduates of obscure law schools, have gambling, graft or liquor problems, or simply look disreputable. It may also take into account some pluses, like topping the bar examinations, post-graduate studies abroad, impressive work experience, and loyalty or opposition to the administration. According to Chief Justice Puno, being over 65 years old is not a constitutional bar but may only be among the many factors to be studied by the JBC in evaluating the over-all acceptability of the applicant.
We usually imitate the United States in many things good and bad, but unfortunately not in the way it chooses appointive judges. In “The Nine” by Jeffrey Toobin, there is an interesting account of President Bill Clinton’s unsuccessful efforts to persuade estimable prospects to join the federal Supreme Court. Especially regrettable was the case of appellate Judge Richard Arnold, the generally acclaimed jurist with a classical education in Greek and Latin and valedictorian of Harvard Law School in 1960, among many other distinctions. The brilliant candidate never became one of The Nine because he had been diagnosed two decades earlier with lymphatic cancer that Clinton feared might spread out any time. It did seven years later.
There is no compulsory retirement age for judges in the United States, unlike here where members of the judiciary, including justices, presumably become senile at 70 and must go out to pasture. That is why many ambitious figures from the bench and the bar, including those older than 65, are setting their sights on a seat on our Supreme Court as their ultimate dream.
http://opinion.inquirer.net/inquireropinion/columns/view/20090125-185379/The-lawyers-ultimate-dream
This impression arises either out of arrogance on the part of the justices who claim such a theory or out of ignorance of insecure members of the Bench and the Bar, and of the Media, as to the sociology and the philosophy of the Bar.
Government service, e.g., appointment in the Supreme Court, is not the sole criterion of self-fulfillment of a member of the Bar. Enlightenment and selfless service to mankind are the true indicia of ultimate success and liberation of a private lawyer.
I, for one, prefer not to serve in Government or to be employed in multibillion corporations. I prefer to be on my own, serving the common Filipinos in my modest capacity as a private litigator. Employed corporate lawyers would brand private lawyers like me as “main street lawyers”, as distinguished from “Wall Street lawyers”.
I am happy and satisfied working alone as a legal advocate, doing justice one case at a time, teaching law one listener at a time, and living a modest and transparent life untainted by greed, hatred, envy, and illusions of grandeur and permanence. I own my own small law office. I control my own time and my own psychic income. I am my own boss. I can speak out my mind on current national and local issues without fear of violating any bureaucratic chain of command. Truly, I am most effective in the private sector as I carry the cudgel for the oppressed, the poor, the weak, and the ignorant.
At any rate, in a recent column of former Justice Isagani Cruz in the Philippine Daily Inquirer, he reacted to the system of public interviews by the Judicial and Bar Council (JBC) of nominees or applicants to vacancies in the Supreme Court, calling the same as humiliating and demeaning, to wit:
“I view the proceedings with distaste because they cheapen the applicant and even the Supreme Court itself where it is the position that must seek the person to occupy it and not vice versa. Prospective justices are not politicians whose highest qualification is popularity that may be won through the box office or other preposterous inducements, never mind integrity and competence. Judges require a higher level of intelligence, morality and, no less important, self-respect. I don’t think any of our eminent jurists in the past would have agreed to submit to the interrogation imposed by the JBC on persons hoping for its imprimatur.”
However, if we revert to the old system of commanding that nominees to the Supreme Court must undergo the partisan rigors before the congressional Commission on Appointments, it would seem to be a worse case, at first glance. In the end, though, such an arrangement is the lesser evil.
I would rather entrust the fate of the Supreme Court to elected lawmakers constituting a Commission on Appointments than rely on the decisions of unelected personalities appointed by the President to the JBC. Electoral mandate forms a sui generis human conscience that is preferable to that of well-connected and elitist appointees.
Below is the full text of his column.
Separate Opinion
The lawyer’s ultimate dream
By Isagani A. Cruz
Philippine Daily Inquirer
First Posted 00:07:00 01/25/2009
WITH the retirement of another justice of the Supreme Court next month, there is even now a scramble for the vacancy to be filled by the President from a list of nominees to be submitted by the Judicial and Bar Council. Aspirants must apply with their bio-data to the JBC so it can schedule their interview, or examination. No one, however prestigious, can expect to be just invited; he must ask to be nominated like all other applicants. The public can witness the competition where the candidates will be subjected to sundry questions to test their eligibility to sit on the highest tribunal.
I view the proceedings with distaste because they cheapen the applicant and even the Supreme Court itself where it is the position that must seek the person to occupy it and not vice versa. Prospective justices are not politicians whose highest qualification is popularity that may be won through the box office or other preposterous inducements, never mind integrity and competence. Judges require a higher level of intelligence, morality and, no less important, self-respect. I don’t think any of our eminent jurists in the past would have agreed to submit to the interrogation imposed by the JBC on persons hoping for its imprimatur.
When the Supreme Court was reorganized in 1986 after Edsa I, there was no JBC yet and no campaigning either. As far as I know, none of those appointed engaged in the cheap tactics now being employed by the present hopefuls. I myself can swear that I never approached even Speaker J. B. Laurel and Vice President Doy Laurel, who were my law partners then, or any one else for that matter. Malacañang learned about our qualifications not directly from us but from our public credentials and the people who knew us.
It was Executive Secretary Joker Arroyo, at that time only a casual acquaintance, who informed me of my appointment and the oath-taking the next day. That was the first time I met President Cory Aquino who had never seen me before and probably knew me principally from my résumé that Dean Rodolfo Palma of the UE College of Law, husband of Justice Cecilia Muñoz Palma, had requested from me.
I guess we were less aggressive then, or more decorous, because of the dignity of the office for which we were being considered. I recall that when, years later, I recommended the appointment to the Supreme Court of Adolfo Azcuna, who was then a stranger to me, he reacted with admirable modesty and gratefully declined the honor. (Somebody now would have grabbed it ferociously.) He was such a contrast to that insolent aspirant who practically commanded the JBC to “just nominate me and I’ll take care of Malacañang!” There was also that executive underling who sent a niece of mine to bring me a cake and request my help to make him a justice.
As a consultant of the JBC for several years, I was able to observe the many types of applicants it had to deal with and especially noticed the courtesy with which it received them. The docility of some of them must have been caused by their feeling that they were taking another bar test. The JBC now schedules some of its sessions in the South to make their search more economical to lawyers who may not have the means to prove in far-away Manila their capacity to be judges.
There are many extra-constitutional tests that applicants may flunk even if they pass all the constitutional requirements. In the exercise of its discretion, the JBC may reject persons who do not belong to the party in power, wear outmoded or loud clothes, are graduates of obscure law schools, have gambling, graft or liquor problems, or simply look disreputable. It may also take into account some pluses, like topping the bar examinations, post-graduate studies abroad, impressive work experience, and loyalty or opposition to the administration. According to Chief Justice Puno, being over 65 years old is not a constitutional bar but may only be among the many factors to be studied by the JBC in evaluating the over-all acceptability of the applicant.
We usually imitate the United States in many things good and bad, but unfortunately not in the way it chooses appointive judges. In “The Nine” by Jeffrey Toobin, there is an interesting account of President Bill Clinton’s unsuccessful efforts to persuade estimable prospects to join the federal Supreme Court. Especially regrettable was the case of appellate Judge Richard Arnold, the generally acclaimed jurist with a classical education in Greek and Latin and valedictorian of Harvard Law School in 1960, among many other distinctions. The brilliant candidate never became one of The Nine because he had been diagnosed two decades earlier with lymphatic cancer that Clinton feared might spread out any time. It did seven years later.
There is no compulsory retirement age for judges in the United States, unlike here where members of the judiciary, including justices, presumably become senile at 70 and must go out to pasture. That is why many ambitious figures from the bench and the bar, including those older than 65, are setting their sights on a seat on our Supreme Court as their ultimate dream.
http://opinion.inquirer.net/inquireropinion/columns/view/20090125-185379/The-lawyers-ultimate-dream
Identity
In the case of ZENAIDA B. GONZALES vs. ATTY. NARCISO PADIERNOS, A.C. No. 6713, December 8, 2008, the Supreme Court suspended a lawyer from law practice for 3 months and revoked his notarial commission.
The Court held that the respondent lawyer did not know the complainant personally, yet he did not require proof of identity from the person who appeared before him and executed and authenticated the three questioned documents. It added that had the respondent lawyer done so, the fraudulent transfer of complainant's property could have been prevented. It warned all Filipino notaries public that they must observe utmost care in complying with the formalities intended to ensure the integrity of the notarized document and the act or acts it embodies.
May I quote below the salient parts of the said decision. Thus:
X x x.
On December 19, 2003, complainant amended her complaint. This time, she charged respondent with gross negligence and failure to exercise the care required by law in the performance of his duties as a notary public, resulting in the loss of her property in Jaen, Nueva Ecija, a 141,497 square meters of mango land covered by TCT NT-29578. The complainant claimed that because of the respondent’s negligent acts, title to her property was transferred to Asterio Gonzales, Estrella Gonzales and Rodolfo Gonzales. She reiterated that when the three documents disposing of her property were notarized, she was out of the country. Estrella Gonzales Mendrano, one of the vendees, was also outside the country as shown by a certification issued by the Bureau of Immigration and Deportation (BID) on September 14, 1989. She likewise claimed that Guadalupe Ramirez Gonzales (the widow of Rodolfo Gonzales, another vendee) executed an affidavit describing the “Deed of Absolute Sale and Subdivision Agreement” as spurious and without her husband's participation. The affidavit further alleged that the complainant’s signatures were forged and the respondent did not ascertain the identity of the person who came before him and posed as vendor despite the fact that a large tract of land was being ceded and transferred to the vendees.
X x x.
Rule II of the 2004 Rules of Notarial Practice provides:
SECTION 1. Acknowledgment. - “Acknowledgment” refers to an act in which an individual on a single occasion:
(a) appears in person before the notary public and present an integrally complete instrument on document;
(b) is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and
(c) represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purpose stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity that he has the authority to sign in that capacity.”
Under the given facts, the respondent clearly failed to faithfully comply with the foregoing rules when he notarized the three documents subject of the present complaint. The respondent did not know the complainant personally, yet he did not require proof of identity from the person who appeared before him and executed and authenticated the three documents. The IBP Report observed that had the respondent done so, “the fraudulent transfer of complainant's property could have been prevented.”
X x x.
The respondent should be reminded that a notarial document is, on its face and by authority of law, entitled to full faith and credit. For this reason, notaries public must observe utmost care in complying with the formalities intended to ensure the integrity of the notarized document and the act or acts it embodies.
X x x. A notary public is duty bound to require the person executing a document to be personally present, and to swear before him that he is the person named in the document and is voluntarily and freely executing the act mentioned in the document. The notary public faithfully discharges this duty by at least verifying the identity of the person appearing before him based on the identification papers presented.
X x x.
The Court held that the respondent lawyer did not know the complainant personally, yet he did not require proof of identity from the person who appeared before him and executed and authenticated the three questioned documents. It added that had the respondent lawyer done so, the fraudulent transfer of complainant's property could have been prevented. It warned all Filipino notaries public that they must observe utmost care in complying with the formalities intended to ensure the integrity of the notarized document and the act or acts it embodies.
May I quote below the salient parts of the said decision. Thus:
X x x.
On December 19, 2003, complainant amended her complaint. This time, she charged respondent with gross negligence and failure to exercise the care required by law in the performance of his duties as a notary public, resulting in the loss of her property in Jaen, Nueva Ecija, a 141,497 square meters of mango land covered by TCT NT-29578. The complainant claimed that because of the respondent’s negligent acts, title to her property was transferred to Asterio Gonzales, Estrella Gonzales and Rodolfo Gonzales. She reiterated that when the three documents disposing of her property were notarized, she was out of the country. Estrella Gonzales Mendrano, one of the vendees, was also outside the country as shown by a certification issued by the Bureau of Immigration and Deportation (BID) on September 14, 1989. She likewise claimed that Guadalupe Ramirez Gonzales (the widow of Rodolfo Gonzales, another vendee) executed an affidavit describing the “Deed of Absolute Sale and Subdivision Agreement” as spurious and without her husband's participation. The affidavit further alleged that the complainant’s signatures were forged and the respondent did not ascertain the identity of the person who came before him and posed as vendor despite the fact that a large tract of land was being ceded and transferred to the vendees.
X x x.
Rule II of the 2004 Rules of Notarial Practice provides:
SECTION 1. Acknowledgment. - “Acknowledgment” refers to an act in which an individual on a single occasion:
(a) appears in person before the notary public and present an integrally complete instrument on document;
(b) is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and
(c) represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purpose stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity that he has the authority to sign in that capacity.”
Under the given facts, the respondent clearly failed to faithfully comply with the foregoing rules when he notarized the three documents subject of the present complaint. The respondent did not know the complainant personally, yet he did not require proof of identity from the person who appeared before him and executed and authenticated the three documents. The IBP Report observed that had the respondent done so, “the fraudulent transfer of complainant's property could have been prevented.”
X x x.
The respondent should be reminded that a notarial document is, on its face and by authority of law, entitled to full faith and credit. For this reason, notaries public must observe utmost care in complying with the formalities intended to ensure the integrity of the notarized document and the act or acts it embodies.
X x x. A notary public is duty bound to require the person executing a document to be personally present, and to swear before him that he is the person named in the document and is voluntarily and freely executing the act mentioned in the document. The notary public faithfully discharges this duty by at least verifying the identity of the person appearing before him based on the identification papers presented.
X x x.
ratio decidendi
What is the legal effect of a decision of the Supreme Court where a majority concurred only in the result and not in the ratio decidendi thereof?
Is it doctrinal in nature?
Does it comply with Section 14 of Article VIII of the 1987 Constitution which mandates that the courts shall clearly present the findings of fact and law in their decisions?
My answer is in the negative.
The issue is the crux of the ongoing partisan attempt to oust Chief Justice Reynato Puno from office.
Art. VIII, Sec. 14 of the 1987 Constitution provides that “no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based”; and that “no petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor.”
Former Chief Justice Artemio Panganiban states: “Second, I believe that the subject decision is unconstitutional, not because it lacks doctrinal value, but because it violates Sec. 14 of Article VIII of the Constitution that states, “No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and law on which it is based.” Per Velarde v Social Justice Party (June 28, 2004), a decision that violates this provision is void and non-existent.
He adds: “An ‘in the result’ vote concurs with the conclusion of the decision, but not with its premises and reasons. The majority who merely concurred “in the result” did not express “clearly and distinctly the facts and law” justifying their vote. In effect, the majority did not state at all the bases of the judgment”.
Justice Cruz states in his column: “This provision is a reiteration of the original rule included in the Commonwealth Constitution to further strengthen the right to notice and hearing guaranteed by the due process clause. It is intended to prevent the court from ruling on any case by simply holding, without more, “Judgment is hereby rendered in favor of X and against Y.” Such arbitrariness is anathema under the Bill of Rights. The parties are entitled to know how a decision has been reached and to appeal from it if it is permitted. This would not be possible if the pertinent facts and the applicable laws are not examined and resolved to support the reasoned decision.”
Columnist Amado Doronilla explains the political motive of the powers-that-be: “If impeachment proceedings against Puno are initiated in Congress, Kampi voting as a party could muster enough votes to impeach Puno. If Puno is impeached, the administration will be free to appoint a new chief justice who will be accommodating to Charter change through a constituent assembly. Puno is known to be against Charter change through a constituent assembly created by Congress voting as one chamber. This explains why Puno is alarmed.”
Reproduced below are the recent columns of Retired Supreme Court Justice Isagani Cruz, Former Supreme Court Chief Justice Artemio Panganiban, and respected columnist Amado Doronilla. We all share the same view on the above matter.
Separate Opinion
Concurring only in the result
By Isagani A. Cruz
Philippine Daily Inquirer
First Posted 00:34:00 01/18/2009
THERE is now a suspect movement to impeach Chief Justice Reynato S. Puno for his refusal to promulgate a decision against a sitting member of the House of Representatives on the ground of non-citizenship. The sketchy reports from the media say it was written by recently retired Justice Ruben Reyes and concurred in without qualification by three or five members of the Supreme Court, with the rest of the justices concurring only in the result.
The threat to impeach Puno has more bark than bite. What is more believable is the suspicion that it has been initiated to remove the chief justice because of his known opposition to the administration’s oft-defeated Cha-cha schemes and replace him with someone more sympathetic to Gloria Macapagal-Arroyo’s dream of perpetuating herself in illicit power. She is again involving the supposedly apolitical Judiciary with this latest machination of her cohorts against a respected jurist, no less than the chief justice himself, to insure her quest for her eternal glorification.
I believe the chief’s reason for not promulgating the so-called decision is based on Art. VIII, Sec. 14 of the Constitution, which says:
“No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.
“No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor.”
This provision is a reiteration of the original rule included in the Commonwealth Constitution to further strengthen the right to notice and hearing guaranteed by the due process clause. It is intended to prevent the court from ruling on any case by simply holding, without more, “Judgment is hereby rendered in favor of X and against Y.” Such arbitrariness is anathema under the Bill of Rights. The parties are entitled to know how a decision has been reached and to appeal from it if it is permitted. This would not be possible if the pertinent facts and the applicable laws are not examined and resolved to support the reasoned decision.
The above-quoted provision was not observed in the Reyes ponencia that Chief Justice Puno has not promulgated to date. He is correct in refusing to do so because it is not supported by the majority vote required by the Constitution. Decisions of the Supreme Court en banc require the conformity of at least eight of the 15 members, which was not reached in the case under consideration. (The singular exception is where a quorum of only eight deliberates on a constitutional question that can be decided by only five of them, but that is another story.)
The news accounts say that nine justices concurred with the Reyes ponencia only “in the result,” with the other five or three members concurring without any reservation and thus agreeing with the facts and the law on which it was based. But there were only four or at most only six of them and so they could not constitute the majority of the Court to render a valid and binding decision.
As for the other nine justices, what they concurred in was only in the result, which meant they did not agree with the facts and the law approved in the ponencia.
The result they were supporting had no basis at all and was therefore an empty gesture. Unlike the justices who merely concurred and thereby indicated their full agreement with the facts and the law that supported the result, the nine justices who concurred only in the result rejected the factual and legal basis discussed in the Reyes ponencia. In effect, they agreed with its dispositive portion but did not say why. Their votes were clearly invalid for not complying with the requirements of Art. VIII, Sec. 14, of the Constitution.
I think those who concurred with Justice Reyes but only in the result did so out of compañerismo with their colleague or agreement with the winner in the case. But they could not accept the reasons given for sustaining her, which is why they could not concur with the ponencia in full without any ifs or buts. Chief Justice Puno was correct in refusing to promulgate the so-called decision as it was supported by only a minority of the Court.
This is only my own personal opinion, and the chief may have his own legal justification. But in any case, the move to impeach him for his perfectly valid stand is making a mountain out of a molehill. The members of the lower House would again demonstrate their ignorance of the Constitution by plotting against the innocent Chief Justice Puno instead of impeaching, not him, but their sainted Gloria Macapagal-Arroyo for her many unconstitutional sins.
I conclude with recollection of a similar case but with a different ending. In Frivaldo v. Commission on Elections, 257 SCRA 727, the Supreme Court finally upheld the petitioner, in what was more of a sentimental tribute than a judicial decision, by reversing established doctrines in three earlier cases against him.
Only five justices concurred completely, four agreed pro hac vice (only for that particular case), three in the result, one dissented, and two did not take part. The lone dissenter was Hilario G. Davide Jr. who later became chief justice in his own time.
http://opinion.inquirer.net/inquireropinion/columns/view/20090118-184004/Concurring-only-in-the-result
Analysis
Who gains from Puno’s impeachment?
By Amando Doronila
Philippine Daily Inquirer
First Posted 00:40:00 01/16/2009
The Supreme Court has come under a storm of controversy after withholding the promulgation of a draft decision upholding a verdict of the Commission on Elections that disqualified Jocelyn Sy Limkaichong from sitting as a representative of Negros Oriental province in the House of Representatives on the grounds that she is a Chinese citizen.
Limkaichong won the congressional election in 2007, defeating Olivia Paras, wife of former congressman Jacinto Paras, by more than 7,000 votes.
The Court en banc decided unanimously in a resolution to withhold promulgation of the draft decision. The draft, although signed by 14 justices, except Chief Justice Reynato Puno, was confidential since it was still to be deliberated upon by the Court.
The non-promulgation of the decision, dated July 15, 2008, sparked a flurry of rumors during the past two weeks that moves were afoot in Congress that the Chief Justice faced impeachment by Congress for sitting on the draft decision, penned by Justice Ruben Reyes who retired last Jan. 2.
Court spokesman Midas Marquez has acknowledged the threat, saying “we have heard of the ouster moves but we don’t’ know where they are coming from.” He said Puno was “accused of sitting on that case and of not promulgating the decision despite the signature of 14 other justices.”
Although an impeachment complaint has yet to be lodged with the House of Representatives, Puno himself did not discount such an attempt by administration allies in the House to pave the way for the appointment of a chief justice who might be more amendable to current proposals to change the Constitution to make way for extending the hold on power of President Gloria Macapagal-Arroyo beyond her term which ends in 2010. Puno said he was prepared to face any attempt to impeach him.
“It is not in our hands,” he said. “If they proceed with that move, then let it be. We cannot prevent it. We’ll meet it when it happens. I’m in perfect peace.” He said he was concerned that the reported moves to impeach him could have devastating effects on the independence of the judiciary. “I like to think that I’m just an incident in this fight. The bigger stake is the independence of the judiciary. If we lose the independence of the judiciary, democracy would die,” Puno said.
He said the Limkaichong electoral case was decided by the entire Supreme Court. “The Court itself has already explained what happened to the case. And this is the position taken collectively by the 15 justices,” he said. “So, if they think there is fault in that collective stand of the 15 justices why don’t they complain about the entire Court? Why are they trying to pin the blame on a single person when the entire Court has explained that this is not my decision alone but the decision of the entire Court?”
In a resolution last month, the Court explained why Reyes’ draft was not promulgated despite the concurrence of all the justices during an en banc session in July last year. It pointed out that nine justices concurred only “in the result.” With nine out of 15 justices concurring only in the result, the ruling written by Reyes “has no doctrinal value,” the Court said. Thus, “the justices decided to withhold the promulgation of the ‘ponencia’ [authored decision] of Justice Reyes.”
There were threats that privilege speeches were to be delivered in the House when Congress resumes its session on Monday to denounce Puno for wrongdoings related to the non-promulgation of the Court’s draft decision on the unseating of Limkaichong. These attacks were planned to jump-start the impeachment moves by members of the President’s party, Kampi.
Should this move materialize, it would be the second time an impeachment move has been taken against a chief justice since 2003, when an impeachment complaint was filed against Chief Justice Hilario Davide Jr., spearheaded by the hit men of Eduardo Cojuangco’s Nationalist People’s Coalition. The attack was led by Cojuangco’s two sons in the House and his nephew Gilberto Teodoro. They accused Davide of alleged misappropriation of funds intended for the living allowances of court employees. Standing its ground against this frontal assault from a co-equal political department of government, the court unequivocally ruled that the impeachment complaint against Davide was unconstitutional.
This time, the attack on the Puno Court is spearheaded by a citizen, Louis Biraogo who claims he has filed a taxpayer’s suit in the cause of “public interest” to put pressure on the Supreme Court to promulgate the draft decision that would unseat Limkaichong. Biraogo also launched a media campaign, accusing Puno of giving favorable treatment to Limkaichong. He went to the media and imputed wrongdoing by Puno for withholding the promulgation of the draft.
These accusations provided ammunition for the President’s political allies in the House to begin moving against Puno. Claims by Biraogo that his intervention in the Limkaichong case was motivated by “public interest” are undermined when tested by the question, who stands to gain from the impeachment of Puno?
If impeachment proceedings against Puno are initiated in Congress, Kampi voting as a party could muster enough votes to impeach Puno. If Puno is impeached, the administration will be free to appoint a new chief justice who will be accommodating to Charter change through a constituent assembly. Puno is known to be against Charter change through a constituent assembly created by Congress voting as one chamber. This explains why Puno is alarmed.
http://opinion.inquirer.net/inquireropinion/columns/view/20090116-183623/Who-gains-from-Punos-impeachment
With Due Respect
Political terrorism
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 00:39:00 01/18/2009
TOMORROW, Jan. 19, Congress will resume its session amid talk that an impeachment complaint would be filed against Chief Justice Reynato S. Puno for allegedly withholding the promulgation of a decision, penned by Justice Ruben T. Reyes, ousting Jocelyn Sy Limkaichong from her congressional seat. I believe that, by itself, this withholding cannot support an impeachment.
CJ not personally liable. First, in its Resolution dated Dec. 10, 2008, the Supreme Court stated, “Since nine (9) Justices, not counting the Chief Justice, would concur only ‘in the result,’ the Justices unanimously decided to withhold the promulgation of the ponencia of Justice Reyes. It was noted that if a majority concurs only ‘in the result,’ the ponencia has no doctrinal value. More importantly, any decision ousting a sitting member of the House of Representatives should spell out clearly the legal basis relied upon by the majority for such extreme measure.” (bold types and italics in original)
Plainly then, it was the Court itself, not the Chief Justice, that withheld the promulgation. Some, including me, may—with due respect—disagree with the Court’s two reasons (and even with the grammar used) for the non-promulgation. The Constitution does not require “doctrinal value” to validate a judgment. Neither does it demand such value in ousting a solon. Indeed, there are many decisions that do not lay down doctrines. Nonetheless, the inaction of the Court en banc as a collegial body cannot be used against the CJ.
Second, I believe that the subject decision is unconstitutional, not because it lacks doctrinal value, but because it violates Sec. 14 of Article VIII of the Constitution that states, “No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and law on which it is based.” Per Velarde v Social Justice Party (June 28, 2004), a decision that violates this provision is void and non-existent.
An “in the result” vote concurs with the conclusion of the decision, but not with its premises and reasons. The majority who merely concurred “in the result” did not express “clearly and distinctly the facts and law” justifying their vote. In effect, the majority did not state at all the bases of the judgment.
Third, the grounds for impeachment are: “Culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” Sitting on a void decision is not one of them. Au contraire, promulgating a decision with nine justices concurring only “in the result” may arguably—repeat, arguably—constitute “culpable violation of the Constitution.”
Numbers game? Many politicians claim that impeachment is a numbers game where all that is needed is the vote of “at least one-third of all the members of the House of Representatives.” However, I think that to ignore the constitutional grounds would constitute grave abuse of discretion that the Supreme Court could enjoin, as it did with the attempt to oust Chief Justice Hilario G. Davide Jr. in 2003. A naked insistence to impeach Chief Justice Puno based on sheer tyranny of numbers would be political terrorism of the most odious kind.
Having said that, I also believe that the Court should decide the Limkaichong case with deliberate speed. Already, more than one and a half years have lapsed in the three-year term of a representative. The case has been amply deliberated upon. The issues are not difficult. In fairness, the Court should issue a prudent decision within 30 days from now.
http://opinion.inquirer.net/inquireropinion/columns/view/20090118-184006/Political-terrorism
Is it doctrinal in nature?
Does it comply with Section 14 of Article VIII of the 1987 Constitution which mandates that the courts shall clearly present the findings of fact and law in their decisions?
My answer is in the negative.
The issue is the crux of the ongoing partisan attempt to oust Chief Justice Reynato Puno from office.
Art. VIII, Sec. 14 of the 1987 Constitution provides that “no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based”; and that “no petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor.”
Former Chief Justice Artemio Panganiban states: “Second, I believe that the subject decision is unconstitutional, not because it lacks doctrinal value, but because it violates Sec. 14 of Article VIII of the Constitution that states, “No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and law on which it is based.” Per Velarde v Social Justice Party (June 28, 2004), a decision that violates this provision is void and non-existent.
He adds: “An ‘in the result’ vote concurs with the conclusion of the decision, but not with its premises and reasons. The majority who merely concurred “in the result” did not express “clearly and distinctly the facts and law” justifying their vote. In effect, the majority did not state at all the bases of the judgment”.
Justice Cruz states in his column: “This provision is a reiteration of the original rule included in the Commonwealth Constitution to further strengthen the right to notice and hearing guaranteed by the due process clause. It is intended to prevent the court from ruling on any case by simply holding, without more, “Judgment is hereby rendered in favor of X and against Y.” Such arbitrariness is anathema under the Bill of Rights. The parties are entitled to know how a decision has been reached and to appeal from it if it is permitted. This would not be possible if the pertinent facts and the applicable laws are not examined and resolved to support the reasoned decision.”
Columnist Amado Doronilla explains the political motive of the powers-that-be: “If impeachment proceedings against Puno are initiated in Congress, Kampi voting as a party could muster enough votes to impeach Puno. If Puno is impeached, the administration will be free to appoint a new chief justice who will be accommodating to Charter change through a constituent assembly. Puno is known to be against Charter change through a constituent assembly created by Congress voting as one chamber. This explains why Puno is alarmed.”
Reproduced below are the recent columns of Retired Supreme Court Justice Isagani Cruz, Former Supreme Court Chief Justice Artemio Panganiban, and respected columnist Amado Doronilla. We all share the same view on the above matter.
Separate Opinion
Concurring only in the result
By Isagani A. Cruz
Philippine Daily Inquirer
First Posted 00:34:00 01/18/2009
THERE is now a suspect movement to impeach Chief Justice Reynato S. Puno for his refusal to promulgate a decision against a sitting member of the House of Representatives on the ground of non-citizenship. The sketchy reports from the media say it was written by recently retired Justice Ruben Reyes and concurred in without qualification by three or five members of the Supreme Court, with the rest of the justices concurring only in the result.
The threat to impeach Puno has more bark than bite. What is more believable is the suspicion that it has been initiated to remove the chief justice because of his known opposition to the administration’s oft-defeated Cha-cha schemes and replace him with someone more sympathetic to Gloria Macapagal-Arroyo’s dream of perpetuating herself in illicit power. She is again involving the supposedly apolitical Judiciary with this latest machination of her cohorts against a respected jurist, no less than the chief justice himself, to insure her quest for her eternal glorification.
I believe the chief’s reason for not promulgating the so-called decision is based on Art. VIII, Sec. 14 of the Constitution, which says:
“No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.
“No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor.”
This provision is a reiteration of the original rule included in the Commonwealth Constitution to further strengthen the right to notice and hearing guaranteed by the due process clause. It is intended to prevent the court from ruling on any case by simply holding, without more, “Judgment is hereby rendered in favor of X and against Y.” Such arbitrariness is anathema under the Bill of Rights. The parties are entitled to know how a decision has been reached and to appeal from it if it is permitted. This would not be possible if the pertinent facts and the applicable laws are not examined and resolved to support the reasoned decision.
The above-quoted provision was not observed in the Reyes ponencia that Chief Justice Puno has not promulgated to date. He is correct in refusing to do so because it is not supported by the majority vote required by the Constitution. Decisions of the Supreme Court en banc require the conformity of at least eight of the 15 members, which was not reached in the case under consideration. (The singular exception is where a quorum of only eight deliberates on a constitutional question that can be decided by only five of them, but that is another story.)
The news accounts say that nine justices concurred with the Reyes ponencia only “in the result,” with the other five or three members concurring without any reservation and thus agreeing with the facts and the law on which it was based. But there were only four or at most only six of them and so they could not constitute the majority of the Court to render a valid and binding decision.
As for the other nine justices, what they concurred in was only in the result, which meant they did not agree with the facts and the law approved in the ponencia.
The result they were supporting had no basis at all and was therefore an empty gesture. Unlike the justices who merely concurred and thereby indicated their full agreement with the facts and the law that supported the result, the nine justices who concurred only in the result rejected the factual and legal basis discussed in the Reyes ponencia. In effect, they agreed with its dispositive portion but did not say why. Their votes were clearly invalid for not complying with the requirements of Art. VIII, Sec. 14, of the Constitution.
I think those who concurred with Justice Reyes but only in the result did so out of compañerismo with their colleague or agreement with the winner in the case. But they could not accept the reasons given for sustaining her, which is why they could not concur with the ponencia in full without any ifs or buts. Chief Justice Puno was correct in refusing to promulgate the so-called decision as it was supported by only a minority of the Court.
This is only my own personal opinion, and the chief may have his own legal justification. But in any case, the move to impeach him for his perfectly valid stand is making a mountain out of a molehill. The members of the lower House would again demonstrate their ignorance of the Constitution by plotting against the innocent Chief Justice Puno instead of impeaching, not him, but their sainted Gloria Macapagal-Arroyo for her many unconstitutional sins.
I conclude with recollection of a similar case but with a different ending. In Frivaldo v. Commission on Elections, 257 SCRA 727, the Supreme Court finally upheld the petitioner, in what was more of a sentimental tribute than a judicial decision, by reversing established doctrines in three earlier cases against him.
Only five justices concurred completely, four agreed pro hac vice (only for that particular case), three in the result, one dissented, and two did not take part. The lone dissenter was Hilario G. Davide Jr. who later became chief justice in his own time.
http://opinion.inquirer.net/inquireropinion/columns/view/20090118-184004/Concurring-only-in-the-result
Analysis
Who gains from Puno’s impeachment?
By Amando Doronila
Philippine Daily Inquirer
First Posted 00:40:00 01/16/2009
The Supreme Court has come under a storm of controversy after withholding the promulgation of a draft decision upholding a verdict of the Commission on Elections that disqualified Jocelyn Sy Limkaichong from sitting as a representative of Negros Oriental province in the House of Representatives on the grounds that she is a Chinese citizen.
Limkaichong won the congressional election in 2007, defeating Olivia Paras, wife of former congressman Jacinto Paras, by more than 7,000 votes.
The Court en banc decided unanimously in a resolution to withhold promulgation of the draft decision. The draft, although signed by 14 justices, except Chief Justice Reynato Puno, was confidential since it was still to be deliberated upon by the Court.
The non-promulgation of the decision, dated July 15, 2008, sparked a flurry of rumors during the past two weeks that moves were afoot in Congress that the Chief Justice faced impeachment by Congress for sitting on the draft decision, penned by Justice Ruben Reyes who retired last Jan. 2.
Court spokesman Midas Marquez has acknowledged the threat, saying “we have heard of the ouster moves but we don’t’ know where they are coming from.” He said Puno was “accused of sitting on that case and of not promulgating the decision despite the signature of 14 other justices.”
Although an impeachment complaint has yet to be lodged with the House of Representatives, Puno himself did not discount such an attempt by administration allies in the House to pave the way for the appointment of a chief justice who might be more amendable to current proposals to change the Constitution to make way for extending the hold on power of President Gloria Macapagal-Arroyo beyond her term which ends in 2010. Puno said he was prepared to face any attempt to impeach him.
“It is not in our hands,” he said. “If they proceed with that move, then let it be. We cannot prevent it. We’ll meet it when it happens. I’m in perfect peace.” He said he was concerned that the reported moves to impeach him could have devastating effects on the independence of the judiciary. “I like to think that I’m just an incident in this fight. The bigger stake is the independence of the judiciary. If we lose the independence of the judiciary, democracy would die,” Puno said.
He said the Limkaichong electoral case was decided by the entire Supreme Court. “The Court itself has already explained what happened to the case. And this is the position taken collectively by the 15 justices,” he said. “So, if they think there is fault in that collective stand of the 15 justices why don’t they complain about the entire Court? Why are they trying to pin the blame on a single person when the entire Court has explained that this is not my decision alone but the decision of the entire Court?”
In a resolution last month, the Court explained why Reyes’ draft was not promulgated despite the concurrence of all the justices during an en banc session in July last year. It pointed out that nine justices concurred only “in the result.” With nine out of 15 justices concurring only in the result, the ruling written by Reyes “has no doctrinal value,” the Court said. Thus, “the justices decided to withhold the promulgation of the ‘ponencia’ [authored decision] of Justice Reyes.”
There were threats that privilege speeches were to be delivered in the House when Congress resumes its session on Monday to denounce Puno for wrongdoings related to the non-promulgation of the Court’s draft decision on the unseating of Limkaichong. These attacks were planned to jump-start the impeachment moves by members of the President’s party, Kampi.
Should this move materialize, it would be the second time an impeachment move has been taken against a chief justice since 2003, when an impeachment complaint was filed against Chief Justice Hilario Davide Jr., spearheaded by the hit men of Eduardo Cojuangco’s Nationalist People’s Coalition. The attack was led by Cojuangco’s two sons in the House and his nephew Gilberto Teodoro. They accused Davide of alleged misappropriation of funds intended for the living allowances of court employees. Standing its ground against this frontal assault from a co-equal political department of government, the court unequivocally ruled that the impeachment complaint against Davide was unconstitutional.
This time, the attack on the Puno Court is spearheaded by a citizen, Louis Biraogo who claims he has filed a taxpayer’s suit in the cause of “public interest” to put pressure on the Supreme Court to promulgate the draft decision that would unseat Limkaichong. Biraogo also launched a media campaign, accusing Puno of giving favorable treatment to Limkaichong. He went to the media and imputed wrongdoing by Puno for withholding the promulgation of the draft.
These accusations provided ammunition for the President’s political allies in the House to begin moving against Puno. Claims by Biraogo that his intervention in the Limkaichong case was motivated by “public interest” are undermined when tested by the question, who stands to gain from the impeachment of Puno?
If impeachment proceedings against Puno are initiated in Congress, Kampi voting as a party could muster enough votes to impeach Puno. If Puno is impeached, the administration will be free to appoint a new chief justice who will be accommodating to Charter change through a constituent assembly. Puno is known to be against Charter change through a constituent assembly created by Congress voting as one chamber. This explains why Puno is alarmed.
http://opinion.inquirer.net/inquireropinion/columns/view/20090116-183623/Who-gains-from-Punos-impeachment
With Due Respect
Political terrorism
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 00:39:00 01/18/2009
TOMORROW, Jan. 19, Congress will resume its session amid talk that an impeachment complaint would be filed against Chief Justice Reynato S. Puno for allegedly withholding the promulgation of a decision, penned by Justice Ruben T. Reyes, ousting Jocelyn Sy Limkaichong from her congressional seat. I believe that, by itself, this withholding cannot support an impeachment.
CJ not personally liable. First, in its Resolution dated Dec. 10, 2008, the Supreme Court stated, “Since nine (9) Justices, not counting the Chief Justice, would concur only ‘in the result,’ the Justices unanimously decided to withhold the promulgation of the ponencia of Justice Reyes. It was noted that if a majority concurs only ‘in the result,’ the ponencia has no doctrinal value. More importantly, any decision ousting a sitting member of the House of Representatives should spell out clearly the legal basis relied upon by the majority for such extreme measure.” (bold types and italics in original)
Plainly then, it was the Court itself, not the Chief Justice, that withheld the promulgation. Some, including me, may—with due respect—disagree with the Court’s two reasons (and even with the grammar used) for the non-promulgation. The Constitution does not require “doctrinal value” to validate a judgment. Neither does it demand such value in ousting a solon. Indeed, there are many decisions that do not lay down doctrines. Nonetheless, the inaction of the Court en banc as a collegial body cannot be used against the CJ.
Second, I believe that the subject decision is unconstitutional, not because it lacks doctrinal value, but because it violates Sec. 14 of Article VIII of the Constitution that states, “No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and law on which it is based.” Per Velarde v Social Justice Party (June 28, 2004), a decision that violates this provision is void and non-existent.
An “in the result” vote concurs with the conclusion of the decision, but not with its premises and reasons. The majority who merely concurred “in the result” did not express “clearly and distinctly the facts and law” justifying their vote. In effect, the majority did not state at all the bases of the judgment.
Third, the grounds for impeachment are: “Culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” Sitting on a void decision is not one of them. Au contraire, promulgating a decision with nine justices concurring only “in the result” may arguably—repeat, arguably—constitute “culpable violation of the Constitution.”
Numbers game? Many politicians claim that impeachment is a numbers game where all that is needed is the vote of “at least one-third of all the members of the House of Representatives.” However, I think that to ignore the constitutional grounds would constitute grave abuse of discretion that the Supreme Court could enjoin, as it did with the attempt to oust Chief Justice Hilario G. Davide Jr. in 2003. A naked insistence to impeach Chief Justice Puno based on sheer tyranny of numbers would be political terrorism of the most odious kind.
Having said that, I also believe that the Court should decide the Limkaichong case with deliberate speed. Already, more than one and a half years have lapsed in the three-year term of a representative. The case has been amply deliberated upon. The issues are not difficult. In fairness, the Court should issue a prudent decision within 30 days from now.
http://opinion.inquirer.net/inquireropinion/columns/view/20090118-184006/Political-terrorism
Continuing detention
In a situation where the respondent in a criminal case is under an inquest proceeding and the inquest prosecutor dismisses the criminal complaint for lack of probable cause, may the detention of the respondent be continued on the ground that the complainant has filed a motion for reconsideration before the Office of the Prosecutor or a petition for review before the Department of Justice or on the ground that the case is subject to automatic review pursuant to a department order of the Secretary of Justice?
This is the main legal and procedural issue in the controversial case of the Alabang Boys which is now raging in the Philippine mass media.
When a respondent is arrested under Rule 13 (valid warrantless arrest), he is immediately subjected to an inquest proceeding (that is, within 36 hours at the most, counted from the arrest of the respondent, if he does not waive his right against illegal detention under Article 125 of the Revised Penal Code).
If the inquest prosecutor is satisfied with the proofs of probable cause submitted by the complainant and the arresting police officers, he will file the appropriate information in court, subject to review and approval by the chief city or provincial prosecutor, within the maximum period allowed by Article 125.
If the respondent waives his Article 125 rights, he continues to be detained and the criminal case is subjected to regular preliminary investigation, which must be completed by the investigating prosecutor within 15 days (from the expiration of the maximum time allowed by Article 125). In a regular preliminary investigation, the respondent may file his counter-affidavit, the affidavits of his witnesses, and his supporting evidence.
If the investigating prosecutor dismisses the complaint for lack of probable cause, and the complainant or the arresting police officers file a motion for reconsideration/reinvestigation or appeal the dismissal via petition for review to the Department of Justice or if the resolution is subjected to automatic review by the Secretary of Justice pursuant to a department order, should the respondent be released pending such proceedings to avoid a violation of Article 125?
I believe so. The respondent must be released pending such proceedings.
The spirit of Article 125 of the Revised Penal Code and the Rules of Criminal Procedure favors the theory that the respondent, in the above scenario, must be immediately released. Otherwise, his continuing detention would stifle his constitutional and human rights to due process of law, equal protection of the law, and presumption of innocence, as enshrined in Article III of the 1987 Constitution.
A DOJ department order imposing the procedure of automatic review for big and controversial criminal cases may be allowed because it is discretionary on the part of the Secretary of Justice, he being in control of the national prosecution arm of the State, but he must release a respondent from detention when the investigating prosecutor, with the approval of the chief city or provincial prosecutor, has dismissed a case for lack of probable cause, notwithstanding the pendency of appellate proceedings before the DOJ. Otherwise, there is sufficient basis to initiate a criminal complaint against the guilty DOJ and police officials for violation of Article 125 of the Revised Penal Code.
Holes in DOJ
(excerpts from the editorial)
Jan. 8, 2009
Philippine Daily Inquirer
THE JURY IS STILL OUT ON THE CASE OF THE alleged bribery involving the “Alabang Boys,” but already it seems clear that the Department of Justice has some housekeeping to do.
X x x.
It was, of course, no such thing. Chief State Prosecutor Jovencio Zuño, who signed the original DOJ resolution on Dec. 2 already incorporating the release order for the three young men, called Verano’s maneuver “not normal”. Verano himself explained it in terms anyone dealing with a corrupt organization would find familiar: “I am just facilitating the order. Maybe I was a little bit overzealous.”
X x x.
The justice department also seems to have tolerated a culture of confusion. The answers of DOJ lawyers to questions raised at the House committee hearings about the procedures involved in the release of suspected illegal drug users and pushers have been less than illuminating. Under the Manual Prosecutors, the chief state prosecutor has the authority to conclude the resolution of a case. Gonzalez, however, had issued a department order requiring his personal approval of the resolution of important cases, especially those involving drugs and smuggling cases. In Gonzalez’s own words: “If it is a drug or smuggling case, if the punishment is more than five years, and you dismiss a case of that nature, you must get my imprimatur.”
Under questioning, however, state prosecutors like John Resado described a work culture where the justice secretary’s circular providing for automatic review was either honored in the breach or interpreted laxly.
This confusing state of affairs allows a state prosecutor to act on the assumption that a resolution signed by the chief state prosecutor is effective immediately even while it is pending automatic review.
None of this is to say that the Philippine Drug Enforcement Agency’s performance is flawless, and that therefore every single arrest it makes must end in conviction. But the many loopholes in DOJ processes help explain why the burden of responsibility, in this high-profile case, rests largely on the Department of Justice.
X x x.
This is the main legal and procedural issue in the controversial case of the Alabang Boys which is now raging in the Philippine mass media.
When a respondent is arrested under Rule 13 (valid warrantless arrest), he is immediately subjected to an inquest proceeding (that is, within 36 hours at the most, counted from the arrest of the respondent, if he does not waive his right against illegal detention under Article 125 of the Revised Penal Code).
If the inquest prosecutor is satisfied with the proofs of probable cause submitted by the complainant and the arresting police officers, he will file the appropriate information in court, subject to review and approval by the chief city or provincial prosecutor, within the maximum period allowed by Article 125.
If the respondent waives his Article 125 rights, he continues to be detained and the criminal case is subjected to regular preliminary investigation, which must be completed by the investigating prosecutor within 15 days (from the expiration of the maximum time allowed by Article 125). In a regular preliminary investigation, the respondent may file his counter-affidavit, the affidavits of his witnesses, and his supporting evidence.
If the investigating prosecutor dismisses the complaint for lack of probable cause, and the complainant or the arresting police officers file a motion for reconsideration/reinvestigation or appeal the dismissal via petition for review to the Department of Justice or if the resolution is subjected to automatic review by the Secretary of Justice pursuant to a department order, should the respondent be released pending such proceedings to avoid a violation of Article 125?
I believe so. The respondent must be released pending such proceedings.
The spirit of Article 125 of the Revised Penal Code and the Rules of Criminal Procedure favors the theory that the respondent, in the above scenario, must be immediately released. Otherwise, his continuing detention would stifle his constitutional and human rights to due process of law, equal protection of the law, and presumption of innocence, as enshrined in Article III of the 1987 Constitution.
A DOJ department order imposing the procedure of automatic review for big and controversial criminal cases may be allowed because it is discretionary on the part of the Secretary of Justice, he being in control of the national prosecution arm of the State, but he must release a respondent from detention when the investigating prosecutor, with the approval of the chief city or provincial prosecutor, has dismissed a case for lack of probable cause, notwithstanding the pendency of appellate proceedings before the DOJ. Otherwise, there is sufficient basis to initiate a criminal complaint against the guilty DOJ and police officials for violation of Article 125 of the Revised Penal Code.
Holes in DOJ
(excerpts from the editorial)
Jan. 8, 2009
Philippine Daily Inquirer
THE JURY IS STILL OUT ON THE CASE OF THE alleged bribery involving the “Alabang Boys,” but already it seems clear that the Department of Justice has some housekeeping to do.
X x x.
It was, of course, no such thing. Chief State Prosecutor Jovencio Zuño, who signed the original DOJ resolution on Dec. 2 already incorporating the release order for the three young men, called Verano’s maneuver “not normal”. Verano himself explained it in terms anyone dealing with a corrupt organization would find familiar: “I am just facilitating the order. Maybe I was a little bit overzealous.”
X x x.
The justice department also seems to have tolerated a culture of confusion. The answers of DOJ lawyers to questions raised at the House committee hearings about the procedures involved in the release of suspected illegal drug users and pushers have been less than illuminating. Under the Manual Prosecutors, the chief state prosecutor has the authority to conclude the resolution of a case. Gonzalez, however, had issued a department order requiring his personal approval of the resolution of important cases, especially those involving drugs and smuggling cases. In Gonzalez’s own words: “If it is a drug or smuggling case, if the punishment is more than five years, and you dismiss a case of that nature, you must get my imprimatur.”
Under questioning, however, state prosecutors like John Resado described a work culture where the justice secretary’s circular providing for automatic review was either honored in the breach or interpreted laxly.
This confusing state of affairs allows a state prosecutor to act on the assumption that a resolution signed by the chief state prosecutor is effective immediately even while it is pending automatic review.
None of this is to say that the Philippine Drug Enforcement Agency’s performance is flawless, and that therefore every single arrest it makes must end in conviction. But the many loopholes in DOJ processes help explain why the burden of responsibility, in this high-profile case, rests largely on the Department of Justice.
X x x.
Consolation
In the case of ENGR. EDGARDO C. GARCIA vs. JUDGE MELJOHN DE LA PEÑA, EN BANC, A.M. No. MTJ-92-687, December 8, 2008, the Supreme Court held that a judge or, for that matter, any judicial personnel, who has been dismissed from the service, “may still enjoy all vacation and sick leave benefits that he earned during the period of his government service”. This is a departure from past rulings of the Court, where the Court had held that all benefits of the dishonorably dismissed judicial officer or personnel are automatically declared forfeited. Thus:
X x x.
To be sure, the penalty imposed on respondent was made pursuant to Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 (Administrative Code of 1987) which provides:
The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of leave credits and retirement benefits, and the disqualification for re-employment in the government service. Further, it may be imposed without prejudice to criminal or civil liability.
However, there have been instances in the past when this Court has shown compassion in modifying already final decisions in administrative cases.
In Cathay Pacific Airways, Ltd. v. Romillo, Jr., this Court, out of humanitarian considerations, allowed dismissed Judge Romillo, Jr. to enjoy all vacation and sick leave benefits that he earned during his government service. In Prudential Bank v. Castro, this Court likewise allowed respondent Judge to enjoy the money equivalent of all his vacation and sick leave benefits.
Furthermore, Civil Service Commission Memorandum Circular (MC) No. 41, Series of 1998, as amended by MC No. 14, Series of 1999, provides:
Section 37. Payment of terminal leave. – Any official/employee of the government who retires, voluntarily resigns, or is separated from the service and who is not otherwise covered by special law, shall be entitled to the commutation of his leave credits exclusive of Saturdays, Sundays and Holidays without limitation and regardless of the period when the credits were earned.
Section 65. Effect of decision in administrative case. – An official or employee who has been penalized with dismissal from the service is likewise not barred from entitlement to his terminal leave benefits.
Also, Section 11.A.1, Rule 140 of the Revised Rules of Court, as amended by A.M. No. 01-8-10-SC, provides:
Section 11. Sanctions. –
A. If the respondent is guilty of a serious charge, any of the following sanctions may be imposed:
1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations. Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits. (Underscoring supplied)
X x x.
X x x.
To be sure, the penalty imposed on respondent was made pursuant to Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 (Administrative Code of 1987) which provides:
The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of leave credits and retirement benefits, and the disqualification for re-employment in the government service. Further, it may be imposed without prejudice to criminal or civil liability.
However, there have been instances in the past when this Court has shown compassion in modifying already final decisions in administrative cases.
In Cathay Pacific Airways, Ltd. v. Romillo, Jr., this Court, out of humanitarian considerations, allowed dismissed Judge Romillo, Jr. to enjoy all vacation and sick leave benefits that he earned during his government service. In Prudential Bank v. Castro, this Court likewise allowed respondent Judge to enjoy the money equivalent of all his vacation and sick leave benefits.
Furthermore, Civil Service Commission Memorandum Circular (MC) No. 41, Series of 1998, as amended by MC No. 14, Series of 1999, provides:
Section 37. Payment of terminal leave. – Any official/employee of the government who retires, voluntarily resigns, or is separated from the service and who is not otherwise covered by special law, shall be entitled to the commutation of his leave credits exclusive of Saturdays, Sundays and Holidays without limitation and regardless of the period when the credits were earned.
Section 65. Effect of decision in administrative case. – An official or employee who has been penalized with dismissal from the service is likewise not barred from entitlement to his terminal leave benefits.
Also, Section 11.A.1, Rule 140 of the Revised Rules of Court, as amended by A.M. No. 01-8-10-SC, provides:
Section 11. Sanctions. –
A. If the respondent is guilty of a serious charge, any of the following sanctions may be imposed:
1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations. Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits. (Underscoring supplied)
X x x.
Wednesday, January 14, 2009
2008 laws
May I list below the important national laws passed by Congress in 2008, for legal research purposes of the visitors of this blog:
Republic Act No. 9516
An Act Further Amending the Provisions of Presidential Decree No. 1866, as Amended, Entitled Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition or... Approved by the President on December 22, 2008
Republic Act No. 9515
"An Act Defining the Liability of Ship Agents in the Tramp Service and for Other Purposes" Approved by the President on December 19, 2008
Republic Act No. 9514
"An Act Establishing a Comprehensive Fire Code of the Philippines Repealing Presidential Decree No. 1185 and for Other Purposes" Approved by the President on December 19, 2008
Republic Act No. 9513
An Act Promoting the Development, Utilization and Commercialization of Renewable Energy Resources and for Other Purposes Approved by the President on December 16, 2008
Republic Act No. 9512
An Act to Promote Environmental Awareness Through Environmental Education and for Other Purposes. Approved by the President on December 12, 2008
Republic Act No. 9511
An Act Granting the National Grid Corporation of the Philippines a Franchise to Engage in the Business of Conveying or Transmitting Electricity Through High Voltage Back-Bone System of... Approved by the President on December 1, 2008
Republic Act No. 9510
An Act Establishing the Credit Information System, and for Other Purposes Approved by the President on October 31, 2008
Republic Act No. 9507
An Act to Establish a Socialized and Low-Cost Housing Loan Restructuring and Condonation Program, Providing the Mechanisms Therefor, and for Other Purposes Approved by the President on October 13, 2008
Republic Act No. 9508
An Act Providing for the Reapportionment of the Lone Legislative District of the Province of Agusan Del Sur Approved by the President on October 20, 2008
Republic Act No. 9509
An Act Establishing Livelihood and Skills Training Centers in Fourth, Fifth and Sixth Class Municipalities, and for Other Purposes Approved by the President on October 21, 2008
Republic Act No. 9506
An Act Creating the Bacolor Rehabilitation Council and Appropriating Funds Therefor Approved by the President on September 28, 2008
Republic Act No. 9503
An Act Further Expanding the Organizational Structure of the Court of Tax Appeals, Amending for the Purpose Certain Sections of the Law Creating the Court of Tax Appeals, and for Other Purposes Approved by the President on June 12, 2008
Republic Act No. 9505
An Act Establishing a Provident Personal Savings Plan, Known as the Personal Equity and Retirement Account (PERA) Approved by the President on August 22, 2008 292.8KB
Republic Act No. 9504
An Act Amending Sections 22, 24, 34, 35, 51 and 79 of Republic Act No. 8424, as Amended, Otherwise Known as the National Internal Revenue Code of 1987. Approved by the President on June 17, 2008 193.6KB
Republic Act No. 9502
An Act Providing for Cheaper and Quality Medicines, Amending for the Purpose Republic Act No. 8293 or the Intellectual Property Code, Republic Act No. 6675 or the Generics Act of 1988, and... Approved by the President on June 6, 2008 1016KB
Republic Act No. 9501
An Act to Promote Entrepreneurship by Strengthening Development and Assistance Programs to Micro, Small and Medium Scale Enterprises, Amending for the Purpose Republic Act No. 6977, as... Approved by the President on May 23, 2008 663.4KB
Republic Act No. 9500
An Act to Strengthen the University of the Philippines as the National University Approved by the President on April 29, 2008 656.1KB
Republic Act No. 9499
An Act Allowing Filipino World War II Veterans to Continue Receiving Philippine Government Pensions and Benefits Notwithstanding Similar Pensions and Benefits Provided by the United States... Approved by the President on April 9, 2008 85.5KB
Republic Act No. 9498
An Act Appropriating Funds for the Operation of the Government of the Republic of the Philippines From January One to December Thirty-One, Two Thousand and Eight, and for Other Purposes Approved by the President on March 11, 2008
Republic Act No. 9497
An Act Creating the Civil Aviation Authority of the Philippines, Authorizing the Appropriation of Funds Therefor, and for Other Purposes Approved by the President on March 4, 2008 1.8MB
Republic Act No. 9496
An Act to Extend the Utilization Period of the Agricultural Competitiveness Enhancement Fund, Amending Republic Act No. 8178, Entitled An Act Replacing Quantitative Import Restrictions on... Approved by the President on February 28, 2008
Atty. Manuel Laserna Jr.
lcmlaw@gmail.com
Republic Act No. 9516
An Act Further Amending the Provisions of Presidential Decree No. 1866, as Amended, Entitled Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition or... Approved by the President on December 22, 2008
Republic Act No. 9515
"An Act Defining the Liability of Ship Agents in the Tramp Service and for Other Purposes" Approved by the President on December 19, 2008
Republic Act No. 9514
"An Act Establishing a Comprehensive Fire Code of the Philippines Repealing Presidential Decree No. 1185 and for Other Purposes" Approved by the President on December 19, 2008
Republic Act No. 9513
An Act Promoting the Development, Utilization and Commercialization of Renewable Energy Resources and for Other Purposes Approved by the President on December 16, 2008
Republic Act No. 9512
An Act to Promote Environmental Awareness Through Environmental Education and for Other Purposes. Approved by the President on December 12, 2008
Republic Act No. 9511
An Act Granting the National Grid Corporation of the Philippines a Franchise to Engage in the Business of Conveying or Transmitting Electricity Through High Voltage Back-Bone System of... Approved by the President on December 1, 2008
Republic Act No. 9510
An Act Establishing the Credit Information System, and for Other Purposes Approved by the President on October 31, 2008
Republic Act No. 9507
An Act to Establish a Socialized and Low-Cost Housing Loan Restructuring and Condonation Program, Providing the Mechanisms Therefor, and for Other Purposes Approved by the President on October 13, 2008
Republic Act No. 9508
An Act Providing for the Reapportionment of the Lone Legislative District of the Province of Agusan Del Sur Approved by the President on October 20, 2008
Republic Act No. 9509
An Act Establishing Livelihood and Skills Training Centers in Fourth, Fifth and Sixth Class Municipalities, and for Other Purposes Approved by the President on October 21, 2008
Republic Act No. 9506
An Act Creating the Bacolor Rehabilitation Council and Appropriating Funds Therefor Approved by the President on September 28, 2008
Republic Act No. 9503
An Act Further Expanding the Organizational Structure of the Court of Tax Appeals, Amending for the Purpose Certain Sections of the Law Creating the Court of Tax Appeals, and for Other Purposes Approved by the President on June 12, 2008
Republic Act No. 9505
An Act Establishing a Provident Personal Savings Plan, Known as the Personal Equity and Retirement Account (PERA) Approved by the President on August 22, 2008 292.8KB
Republic Act No. 9504
An Act Amending Sections 22, 24, 34, 35, 51 and 79 of Republic Act No. 8424, as Amended, Otherwise Known as the National Internal Revenue Code of 1987. Approved by the President on June 17, 2008 193.6KB
Republic Act No. 9502
An Act Providing for Cheaper and Quality Medicines, Amending for the Purpose Republic Act No. 8293 or the Intellectual Property Code, Republic Act No. 6675 or the Generics Act of 1988, and... Approved by the President on June 6, 2008 1016KB
Republic Act No. 9501
An Act to Promote Entrepreneurship by Strengthening Development and Assistance Programs to Micro, Small and Medium Scale Enterprises, Amending for the Purpose Republic Act No. 6977, as... Approved by the President on May 23, 2008 663.4KB
Republic Act No. 9500
An Act to Strengthen the University of the Philippines as the National University Approved by the President on April 29, 2008 656.1KB
Republic Act No. 9499
An Act Allowing Filipino World War II Veterans to Continue Receiving Philippine Government Pensions and Benefits Notwithstanding Similar Pensions and Benefits Provided by the United States... Approved by the President on April 9, 2008 85.5KB
Republic Act No. 9498
An Act Appropriating Funds for the Operation of the Government of the Republic of the Philippines From January One to December Thirty-One, Two Thousand and Eight, and for Other Purposes Approved by the President on March 11, 2008
Republic Act No. 9497
An Act Creating the Civil Aviation Authority of the Philippines, Authorizing the Appropriation of Funds Therefor, and for Other Purposes Approved by the President on March 4, 2008 1.8MB
Republic Act No. 9496
An Act to Extend the Utilization Period of the Agricultural Competitiveness Enhancement Fund, Amending Republic Act No. 8178, Entitled An Act Replacing Quantitative Import Restrictions on... Approved by the President on February 28, 2008
Atty. Manuel Laserna Jr.
lcmlaw@gmail.com
The chief is under attack
May I share a material from the Supreme Court stating the sectoral supports that Chief Justice Reynato Puno has been receiving in re: the rumor that partisan political factions, some say, aided by the Palace, have launched an impeachment campaign against him. The Chief Justice, who I find to be modest, humble, a free thinker and a libertarian, must be spared from the filth of partisan politics. The independence of the judiciary is at stake.
Outpouring of Support for Chief Justice Puno
Posted: January 14, 2009
By Jay B. Rempillo
Chief Justice Reynato S. Puno today was visited by “Running Priest” Fr. Robert Reyes who joined the men and women of the Judiciary, private individuals, and multi-sectoral groups who have expressed their full support for the chief magistrate and appealed that he and the Supreme Court be spared from politics.
Fr. Reyes, who runs to bring attention to his advocacies, prayed for Chief Justice Puno inside the chief magistrate’s chambers. Fr. Reyes was with the farmers-group Ugnayan ng mga Nagsasariling Lokal na Organisasyon ng Mamamayan sa Kanayunan-Southern Tagalog (UNORKA-Southern Tagalog), one of the multi-sectoral groups which manifested support for Chief Justice Puno. The group presented Chief Justice Puno with a letter written in Filipino expressing their full and unwavering support for him.
In separate manifestos of support, the Philippine Judges Association (PJA), the Regional Trial Court (RTC) of Manila, and the Las Piñas City Judges Association expressed their unqualified and unwavering support for Chief Justice Puno in face of reports saying that the chief magistrate is in danger of being impeached by Congress over the alleged non-promulgation of a purported SC decision in the case of Biraogo v. Nograles and Limkaichong, a case questioning the qualification as to citizenship of Representative-elect Jocelyn LImkaichong. They denounced the alleged threats to oust Chief Justice Puno.
Aside from the issuance of a manifesto of support for Chief Justice Puno, the Metropolitan and City Judges Association of the Philippines (MeTCJAP), headed by its Executive Vice-President Judge Jaime B. Santiago of the Manila Metropolitan Trial Court, stated that it will hold an emergency meeting this Friday to discuss its course of action. In a statement, MeTCJAP said that it “sees the recent events as a political maneuver to destroy the integrity of the Chief Justice and the institution he is representing as a whole.”
PJA President Antonio M. Eugenio, Jr., in a statement, said that the PJA is “opposing any ‘contrived plot’ against Chief Justice Puno and any attempt to oust him before he retires in May 2010” and that the Judiciary “should be spared from ‘partisan manipulations.’”
“The PJA calls upon everyone to observe the Rule of Law, not to callously trample upon it for self-serving aims or purposes. More importantly, the PJA makes known its intentions that all legal measures and stops will be taken in order to see to it that the herein support being extended to Chief Justice Puno will be put into further action, if need be,” said the PJA. The PJA, an organization of around 900 RTC Judges nationwide, said that the attempt to impeach Chief Justice Puno is “a sickening reflection of how low ‘power-hungry’ individuals would go in order to put [the chief magistrate] in a bad light and promote their ‘sinister agenda.’”
The judges and employees of the Regional Trial Court (RTC) of Manila dismissed as “unfounded and baseless” the accusations against Chief Justice Puno. “We extol the Honorable Chief Justice in his efforts to cleanse the Judiciary, and we urge the citizenry to support him in this endeavor,” the manifesto stated.
The RTC of Manila underscored that Chief Justice Puno “has shown his integrity, uprightness, independence, impartiality, industry, and competence, with the decisions he has rendered, and his unblemished record, free from influence and corruption.” They commended Chief Justice Puno for initiating judicial reforms to win the trust and confidence of the general public.
The Las Piñas City Judges Association echoed the sentiments of the PJA that Chief Justice Puno should be spared from partisan manipulations. It described the alleged ouster move as among the “scandalous efforts…being exerted by seemingly ill-minded individuals to promote their political agency at the expense of every democratic institution in the country.” It vowed to take all legal measures and steps to ensure that its support to Chief Justice Puno will be put into action if the need arises.
Chief Justice Puno has also received letters of support from private law firms, including the Chua Law Office, expressing their support and deploring the ouster allegations. They also volunteered to act as counsel for the chief magistrate.
Outpouring of Support for Chief Justice Puno
Posted: January 14, 2009
By Jay B. Rempillo
Chief Justice Reynato S. Puno today was visited by “Running Priest” Fr. Robert Reyes who joined the men and women of the Judiciary, private individuals, and multi-sectoral groups who have expressed their full support for the chief magistrate and appealed that he and the Supreme Court be spared from politics.
Fr. Reyes, who runs to bring attention to his advocacies, prayed for Chief Justice Puno inside the chief magistrate’s chambers. Fr. Reyes was with the farmers-group Ugnayan ng mga Nagsasariling Lokal na Organisasyon ng Mamamayan sa Kanayunan-Southern Tagalog (UNORKA-Southern Tagalog), one of the multi-sectoral groups which manifested support for Chief Justice Puno. The group presented Chief Justice Puno with a letter written in Filipino expressing their full and unwavering support for him.
In separate manifestos of support, the Philippine Judges Association (PJA), the Regional Trial Court (RTC) of Manila, and the Las Piñas City Judges Association expressed their unqualified and unwavering support for Chief Justice Puno in face of reports saying that the chief magistrate is in danger of being impeached by Congress over the alleged non-promulgation of a purported SC decision in the case of Biraogo v. Nograles and Limkaichong, a case questioning the qualification as to citizenship of Representative-elect Jocelyn LImkaichong. They denounced the alleged threats to oust Chief Justice Puno.
Aside from the issuance of a manifesto of support for Chief Justice Puno, the Metropolitan and City Judges Association of the Philippines (MeTCJAP), headed by its Executive Vice-President Judge Jaime B. Santiago of the Manila Metropolitan Trial Court, stated that it will hold an emergency meeting this Friday to discuss its course of action. In a statement, MeTCJAP said that it “sees the recent events as a political maneuver to destroy the integrity of the Chief Justice and the institution he is representing as a whole.”
PJA President Antonio M. Eugenio, Jr., in a statement, said that the PJA is “opposing any ‘contrived plot’ against Chief Justice Puno and any attempt to oust him before he retires in May 2010” and that the Judiciary “should be spared from ‘partisan manipulations.’”
“The PJA calls upon everyone to observe the Rule of Law, not to callously trample upon it for self-serving aims or purposes. More importantly, the PJA makes known its intentions that all legal measures and stops will be taken in order to see to it that the herein support being extended to Chief Justice Puno will be put into further action, if need be,” said the PJA. The PJA, an organization of around 900 RTC Judges nationwide, said that the attempt to impeach Chief Justice Puno is “a sickening reflection of how low ‘power-hungry’ individuals would go in order to put [the chief magistrate] in a bad light and promote their ‘sinister agenda.’”
The judges and employees of the Regional Trial Court (RTC) of Manila dismissed as “unfounded and baseless” the accusations against Chief Justice Puno. “We extol the Honorable Chief Justice in his efforts to cleanse the Judiciary, and we urge the citizenry to support him in this endeavor,” the manifesto stated.
The RTC of Manila underscored that Chief Justice Puno “has shown his integrity, uprightness, independence, impartiality, industry, and competence, with the decisions he has rendered, and his unblemished record, free from influence and corruption.” They commended Chief Justice Puno for initiating judicial reforms to win the trust and confidence of the general public.
The Las Piñas City Judges Association echoed the sentiments of the PJA that Chief Justice Puno should be spared from partisan manipulations. It described the alleged ouster move as among the “scandalous efforts…being exerted by seemingly ill-minded individuals to promote their political agency at the expense of every democratic institution in the country.” It vowed to take all legal measures and steps to ensure that its support to Chief Justice Puno will be put into action if the need arises.
Chief Justice Puno has also received letters of support from private law firms, including the Chua Law Office, expressing their support and deploring the ouster allegations. They also volunteered to act as counsel for the chief magistrate.
Extortion
In the case of FERNANDO MARTIN O. PENA vs. ATTY. LOLITO G. APARICIO, A.C. No. 7298 [Formerly CBD Case No. 05-1565], June 25, 2007, the Supreme Court found the respondent lawyer liable for violation of Rule 19.01 of Canon 19 of the Code of Professional Responsibility, and was meted out the penalty of reprimand with the stern warning that a repetition of the same or similar act would be dealt with more severely.
Let me digest the case below for legal research purposes of the visitors of this blog.
In this administrative complaint, the respondent lawyer is charged with violation of Rule 19.01 of Canon 19 of the Code of Professional Responsibility for writing a demand letter the contents of which threatened complainant with the filing of criminal cases for tax evasion and falsification of documents.
The salient parts of the demand letter are as follows:
“BUT if these are not paid on August 10, 2005, we will be constrained to file and claim bigger amounts including moral damages to the tune of millions under established precedence of cases and laws. In addition to other multiple charges like:
1. Tax evasion by the millions of pesos of income not reported to the government.
2. Criminal Charges for Tax Evasion
3. Criminal Charges for Falsification of Documents
4. Cancellation of business license to operate due to violations of laws.
These are reserved for future actions in case of failure to pay the above amounts as settlements in the National Labor Relations Commission (NLRC).”
Canon 19 of the Code of Professional Responsibility states that “a lawyer shall represent his client with zeal within the bounds of the law,” reminding legal practitioners that a lawyer’s duty is not to his client but to the administration of justice; to that end, his client’s success is wholly subordinate; and his conduct ought to and must always be scrupulously observant of law and ethics. In particular, Rule 19.01 commands that a “lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding.” Under this Rule, a lawyer should not file or threaten to file any unfounded or baseless criminal case or cases against the adversaries of his client designed to secure a leverage to compel the adversaries to yield or withdraw their own cases against the lawyer’s client.
In the case at bar, respondent did exactly what Canon 19 and its Rule proscribe. Through his letter, he threatened complainant that should the latter fail to pay the amounts they propose as settlement, he would file and claim bigger amounts including moral damages, as well as multiple charges such as tax evasion, falsification of documents, and cancellation of business license to operate due to violations of laws. The threats are not only unethical for violating Canon 19, but they also amount to blackmail.
Blackmail is “the extortion of money from a person by threats of accusation or exposure or opposition in the public prints,…obtaining of value from a person as a condition of refraining from making an accusation against him, or disclosing some secret calculated to operate to his prejudice.” In common parlance and in general acceptation, it is equivalent to and synonymous with extortion, the exaction of money either for the performance of a duty, the prevention of an injury, or the exercise of an influence. Not infrequently, it is extorted by threats, or by operating on the fears or the credulity, or by promises to conceal or offers to expose the weaknesses, the follies, or the crime of the victim.
In Sps. Boyboy v. Atty. Yabut, Jr., we held that “[a]n accusation for blackmail and extortion is a very serious one which, if properly substantiated, would entail not only respondent’s disbarment from the practice of law, but also a possible criminal prosecution.” While the respondent in Boyboy was exonerated for lack of evidence, the same may not be said of respondent in the present case for he admits to writing the offensive letter.
In fact, respondent does not find anything wrong with what he wrote, dismissing the same as merely an act of pointing out massive violations of the law by the other party, and, with boldness, asserting that “a lawyer is under obligation to tell the truth, to report to the government commission of offenses punishable by the State.” He further asserts that the writing of demand letters is a standard practice and tradition and that our laws allow and encourage the settlement of disputes.
Respondent’s assertions, however, are misleading, for it is quite obvious that respondent’s threat to file the cases against complainant was designed to secure some leverage to compel the latter to give in to his client’s demands. It was not respondent’s intention to point out complainant’s violations of the law as he so gallantly claims. Far from it, the letter even contains an implied promise to “keep silent” about the said violations if payment of the claim is made on the date indicated.
Indeed, the writing of demand letters is a standard practice and tradition in this jurisdiction. It is usually done by a lawyer pursuant to the principal-agent relationship that he has with his client, the principal. Thus, in the performance of his role as agent, the lawyer may be tasked to enforce his client’s claim and to take all the steps necessary to collect it, such as writing a letter of demand requiring payment within a specified period. However, the letter in this case contains more than just a simple demand to pay. It even contains a threat to file retaliatory charges against complainant which have nothing to do with his client’s claim for separation pay. The letter was obviously designed to secure leverage to compel complainant to yield to their claims. Indeed, letters of this nature are definitely proscribed by the Code of Professional Responsibility.
Respondent cannot claim the sanctuary provided by the privileged communication rule under which a private communication executed in the performance of a legal duty is not actionable. The privileged nature of the letter was removed when respondent used it to blackmail complainant and extort from the latter compliance with the demands of his client.
However, while the writing of the letter went beyond ethical standards, we hold that disbarment is too severe a penalty to be imposed on respondent, considering that he wrote the same out of his overzealousness to protect his client’s interests. Accordingly, the more appropriate penalty is reprimand.
Let me digest the case below for legal research purposes of the visitors of this blog.
In this administrative complaint, the respondent lawyer is charged with violation of Rule 19.01 of Canon 19 of the Code of Professional Responsibility for writing a demand letter the contents of which threatened complainant with the filing of criminal cases for tax evasion and falsification of documents.
The salient parts of the demand letter are as follows:
“BUT if these are not paid on August 10, 2005, we will be constrained to file and claim bigger amounts including moral damages to the tune of millions under established precedence of cases and laws. In addition to other multiple charges like:
1. Tax evasion by the millions of pesos of income not reported to the government.
2. Criminal Charges for Tax Evasion
3. Criminal Charges for Falsification of Documents
4. Cancellation of business license to operate due to violations of laws.
These are reserved for future actions in case of failure to pay the above amounts as settlements in the National Labor Relations Commission (NLRC).”
Canon 19 of the Code of Professional Responsibility states that “a lawyer shall represent his client with zeal within the bounds of the law,” reminding legal practitioners that a lawyer’s duty is not to his client but to the administration of justice; to that end, his client’s success is wholly subordinate; and his conduct ought to and must always be scrupulously observant of law and ethics. In particular, Rule 19.01 commands that a “lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding.” Under this Rule, a lawyer should not file or threaten to file any unfounded or baseless criminal case or cases against the adversaries of his client designed to secure a leverage to compel the adversaries to yield or withdraw their own cases against the lawyer’s client.
In the case at bar, respondent did exactly what Canon 19 and its Rule proscribe. Through his letter, he threatened complainant that should the latter fail to pay the amounts they propose as settlement, he would file and claim bigger amounts including moral damages, as well as multiple charges such as tax evasion, falsification of documents, and cancellation of business license to operate due to violations of laws. The threats are not only unethical for violating Canon 19, but they also amount to blackmail.
Blackmail is “the extortion of money from a person by threats of accusation or exposure or opposition in the public prints,…obtaining of value from a person as a condition of refraining from making an accusation against him, or disclosing some secret calculated to operate to his prejudice.” In common parlance and in general acceptation, it is equivalent to and synonymous with extortion, the exaction of money either for the performance of a duty, the prevention of an injury, or the exercise of an influence. Not infrequently, it is extorted by threats, or by operating on the fears or the credulity, or by promises to conceal or offers to expose the weaknesses, the follies, or the crime of the victim.
In Sps. Boyboy v. Atty. Yabut, Jr., we held that “[a]n accusation for blackmail and extortion is a very serious one which, if properly substantiated, would entail not only respondent’s disbarment from the practice of law, but also a possible criminal prosecution.” While the respondent in Boyboy was exonerated for lack of evidence, the same may not be said of respondent in the present case for he admits to writing the offensive letter.
In fact, respondent does not find anything wrong with what he wrote, dismissing the same as merely an act of pointing out massive violations of the law by the other party, and, with boldness, asserting that “a lawyer is under obligation to tell the truth, to report to the government commission of offenses punishable by the State.” He further asserts that the writing of demand letters is a standard practice and tradition and that our laws allow and encourage the settlement of disputes.
Respondent’s assertions, however, are misleading, for it is quite obvious that respondent’s threat to file the cases against complainant was designed to secure some leverage to compel the latter to give in to his client’s demands. It was not respondent’s intention to point out complainant’s violations of the law as he so gallantly claims. Far from it, the letter even contains an implied promise to “keep silent” about the said violations if payment of the claim is made on the date indicated.
Indeed, the writing of demand letters is a standard practice and tradition in this jurisdiction. It is usually done by a lawyer pursuant to the principal-agent relationship that he has with his client, the principal. Thus, in the performance of his role as agent, the lawyer may be tasked to enforce his client’s claim and to take all the steps necessary to collect it, such as writing a letter of demand requiring payment within a specified period. However, the letter in this case contains more than just a simple demand to pay. It even contains a threat to file retaliatory charges against complainant which have nothing to do with his client’s claim for separation pay. The letter was obviously designed to secure leverage to compel complainant to yield to their claims. Indeed, letters of this nature are definitely proscribed by the Code of Professional Responsibility.
Respondent cannot claim the sanctuary provided by the privileged communication rule under which a private communication executed in the performance of a legal duty is not actionable. The privileged nature of the letter was removed when respondent used it to blackmail complainant and extort from the latter compliance with the demands of his client.
However, while the writing of the letter went beyond ethical standards, we hold that disbarment is too severe a penalty to be imposed on respondent, considering that he wrote the same out of his overzealousness to protect his client’s interests. Accordingly, the more appropriate penalty is reprimand.
Lawyer-client relationship
In the case of MA. LUISA HADJULA vs. ATTY. ROCELES F. MADIANDA, A.C. No. 6711, July 3, 2007, the Supreme Court reprimanded and admonished the respondent lawyer to be circumspect in her handling of information acquired as a result of a lawyer-client relationship. Let me digest the case below for legal research purposes.
In 2002, the complainant charged the respondent lawyer with violation of Article 209 (Betrayal of Trust by an Attorney/Revelation of Secrets) of the Revised Penal Code and Canon Nos. 15.02 and 21.02 of the Code of Professional Responsibility.
The complainant alleged that she and respondent used to be friends as they both worked at the Bureau of Fire Protection (BFP) whereat respondent was the Chief Legal Officer while she was the Chief Nurse of the Medical, Dental and Nursing Services. Complainant claimed that, sometime in 1998, she approached respondent for some legal advice. Complainant further alleged that, in the course of their conversation which was supposed to be kept confidential, she disclosed personal secrets and produced copies of a marriage contract, a birth certificate and a baptismal certificate, only to be informed later by the respondent that she (respondent) would refer the matter to a lawyer friend. It was malicious, so complainant states, of respondent to have refused handling her case only after she had already heard her secrets.
The complainant averred that her friendship with respondent soured after her filing, in the later part of 2000, of criminal and disciplinary actions against the latter. What, per complainant’s account, precipitated the filing was when respondent, then a member of the BFP promotion board, demanded a cellular phone in exchange for the complainant’s promotion.
According to complainant, respondent, in retaliation to the filing of the aforesaid actions, filed a COUNTER COMPLAINT with the Ombudsman charging her (complainant) with violation of Section 3(a) of Republic Act No. 3019, falsification of public documents and immorality, the last two charges being based on the disclosures complainant earlier made to respondent. And also on the basis of the same disclosures, complainant further stated, a disciplinary case was also instituted against her before the Professional Regulation Commission.
Complainant seeks the suspension and/or disbarment of respondent for the latter’s act of disclosing personal secrets and confidential information she revealed in the course of seeking respondent’s legal advice.
In her answer, styled as COUNTER-AFFIDAVIT, respondent denied giving legal advice to the complainant and dismissed any suggestion about the existence of a lawyer-client relationship between them. Respondent also stated the observation that the supposed confidential data and sensitive documents adverted to are in fact matters of common knowledge in the BFP. The relevant portions of the answer read:
5. I specifically deny the allegation of F/SUPT. MA. LUISA C. HADJULA in paragraph 4 of her AFFIDAVIT-COMPLAINT for reason that she never WAS MY CLIENT nor we ever had any LAWYER-CLIENT RELATIONSHIP that ever existed ever since and that never obtained any legal advice from me regarding her PERSONAL PROBLEMS or PERSONAL SECRETS. She likewise never delivered to me legal documents much more told me some confidential information or secrets. That is because I never entertain LEGAL QUERIES or CONSULTATION regarding PERSONAL MATTERS since I know as a LAWYER of the Bureau of Fire Protection that I am not allowed to privately practice law and it might also result to CONFLICT OF INTEREST. As a matter of fact, whenever there will be PERSONAL MATTERS referred to me, I just referred them to private law practitioners and never entertain the same, NOR listen to their stories or examine or accept any document.
9. I specifically deny the allegation of F/SUPT. MA. LUISA C. HADJULA in paragraph 8 of her AFFIDAVIT-COMPLAINT, the truth of the matter is that her ILLICIT RELATIONSHIP and her illegal and unlawful activities are known in the Bureau of Fire Protection since she also filed CHILD SUPPORT case against her lover … where she has a child ….Moreover, the alleged DOCUMENTS she purportedly have shown to me sometime in 1998, are all part of public records ….Furthermore, F/SUPT. MA. LUISA C. HADJULA, is filing the instant case just to get even with me or to force me to settle and withdraw the CASES I FILED AGAINST HER since she knows that she will certainly be DISMISSED FROM SERVICE, REMOVED FROM THE PRC ROLL and CRIMINALLY CONVICTED of her ILLICIT, IMMORAL, ILLEGAL and UNLAWFUL ACTS.
As it were, complainant went to respondent, a lawyer who incidentally was also then a friend, to bare what she considered personal secrets and sensitive documents for the purpose of obtaining legal advice and assistance. The moment complainant approached the then receptive respondent to seek legal advice, a veritable lawyer-client relationship evolved between the two. Such relationship imposes upon the lawyer certain restrictions circumscribed by the ethics of the profession. Among the burdens of the relationship is that which enjoins the lawyer, respondent in this instance, to keep inviolate confidential information acquired or revealed during legal consultations. The fact that one is, at the end of the day, not inclined to handle the client’s case is hardly of consequence. Of little moment, too, is the fact that no formal professional engagement follows the consultation. Nor will it make any difference that no contract whatsoever was executed by the parties to memorialize the relationship. As we said in Burbe v. Magulta, 432 Phil. 840 (2002):
A lawyer-client relationship was established from the very first moment complainant asked respondent for legal advise regarding the former’s business. To constitute professional employment, it is not essential that the client employed the attorney professionally on any previous occasion.
It is not necessary that any retainer be paid, promised, or charged; neither is it material that the attorney consulted did not afterward handle the case for which his service had been sought.
It a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, then the professional employments is established.
Likewise, a lawyer-client relationship exists notwithstanding the close personal relationship between the lawyer and the complainant or the non-payment of the former’s fees.
Dean Wigmore lists the essential factors to establish the existence of the attorney-client privilege communication, viz:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.
The purpose of the rule of confidentiality is actually to protect the client from possible breach of confidence as a result of a consultation with a lawyer.
The seriousness of the respondent’s offense notwithstanding, the Court feels that there is room for compassion, absent compelling evidence that the respondent acted with ill-will. Without meaning to condone the error of respondent’s ways, what at bottom is before the Court is two former friends becoming bitter enemies and filing charges and counter-charges against each other using whatever convenient tools and data were readily available. Unfortunately, the personal information respondent gathered from her conversation with complainant became handy in her quest to even the score. At the end of the day, it appears clear to us that respondent was actuated by the urge to retaliate without perhaps realizing that, in the process of giving vent to a negative sentiment, she was violating the rule on confidentiality.
In 2002, the complainant charged the respondent lawyer with violation of Article 209 (Betrayal of Trust by an Attorney/Revelation of Secrets) of the Revised Penal Code and Canon Nos. 15.02 and 21.02 of the Code of Professional Responsibility.
The complainant alleged that she and respondent used to be friends as they both worked at the Bureau of Fire Protection (BFP) whereat respondent was the Chief Legal Officer while she was the Chief Nurse of the Medical, Dental and Nursing Services. Complainant claimed that, sometime in 1998, she approached respondent for some legal advice. Complainant further alleged that, in the course of their conversation which was supposed to be kept confidential, she disclosed personal secrets and produced copies of a marriage contract, a birth certificate and a baptismal certificate, only to be informed later by the respondent that she (respondent) would refer the matter to a lawyer friend. It was malicious, so complainant states, of respondent to have refused handling her case only after she had already heard her secrets.
The complainant averred that her friendship with respondent soured after her filing, in the later part of 2000, of criminal and disciplinary actions against the latter. What, per complainant’s account, precipitated the filing was when respondent, then a member of the BFP promotion board, demanded a cellular phone in exchange for the complainant’s promotion.
According to complainant, respondent, in retaliation to the filing of the aforesaid actions, filed a COUNTER COMPLAINT with the Ombudsman charging her (complainant) with violation of Section 3(a) of Republic Act No. 3019, falsification of public documents and immorality, the last two charges being based on the disclosures complainant earlier made to respondent. And also on the basis of the same disclosures, complainant further stated, a disciplinary case was also instituted against her before the Professional Regulation Commission.
Complainant seeks the suspension and/or disbarment of respondent for the latter’s act of disclosing personal secrets and confidential information she revealed in the course of seeking respondent’s legal advice.
In her answer, styled as COUNTER-AFFIDAVIT, respondent denied giving legal advice to the complainant and dismissed any suggestion about the existence of a lawyer-client relationship between them. Respondent also stated the observation that the supposed confidential data and sensitive documents adverted to are in fact matters of common knowledge in the BFP. The relevant portions of the answer read:
5. I specifically deny the allegation of F/SUPT. MA. LUISA C. HADJULA in paragraph 4 of her AFFIDAVIT-COMPLAINT for reason that she never WAS MY CLIENT nor we ever had any LAWYER-CLIENT RELATIONSHIP that ever existed ever since and that never obtained any legal advice from me regarding her PERSONAL PROBLEMS or PERSONAL SECRETS. She likewise never delivered to me legal documents much more told me some confidential information or secrets. That is because I never entertain LEGAL QUERIES or CONSULTATION regarding PERSONAL MATTERS since I know as a LAWYER of the Bureau of Fire Protection that I am not allowed to privately practice law and it might also result to CONFLICT OF INTEREST. As a matter of fact, whenever there will be PERSONAL MATTERS referred to me, I just referred them to private law practitioners and never entertain the same, NOR listen to their stories or examine or accept any document.
9. I specifically deny the allegation of F/SUPT. MA. LUISA C. HADJULA in paragraph 8 of her AFFIDAVIT-COMPLAINT, the truth of the matter is that her ILLICIT RELATIONSHIP and her illegal and unlawful activities are known in the Bureau of Fire Protection since she also filed CHILD SUPPORT case against her lover … where she has a child ….Moreover, the alleged DOCUMENTS she purportedly have shown to me sometime in 1998, are all part of public records ….Furthermore, F/SUPT. MA. LUISA C. HADJULA, is filing the instant case just to get even with me or to force me to settle and withdraw the CASES I FILED AGAINST HER since she knows that she will certainly be DISMISSED FROM SERVICE, REMOVED FROM THE PRC ROLL and CRIMINALLY CONVICTED of her ILLICIT, IMMORAL, ILLEGAL and UNLAWFUL ACTS.
As it were, complainant went to respondent, a lawyer who incidentally was also then a friend, to bare what she considered personal secrets and sensitive documents for the purpose of obtaining legal advice and assistance. The moment complainant approached the then receptive respondent to seek legal advice, a veritable lawyer-client relationship evolved between the two. Such relationship imposes upon the lawyer certain restrictions circumscribed by the ethics of the profession. Among the burdens of the relationship is that which enjoins the lawyer, respondent in this instance, to keep inviolate confidential information acquired or revealed during legal consultations. The fact that one is, at the end of the day, not inclined to handle the client’s case is hardly of consequence. Of little moment, too, is the fact that no formal professional engagement follows the consultation. Nor will it make any difference that no contract whatsoever was executed by the parties to memorialize the relationship. As we said in Burbe v. Magulta, 432 Phil. 840 (2002):
A lawyer-client relationship was established from the very first moment complainant asked respondent for legal advise regarding the former’s business. To constitute professional employment, it is not essential that the client employed the attorney professionally on any previous occasion.
It is not necessary that any retainer be paid, promised, or charged; neither is it material that the attorney consulted did not afterward handle the case for which his service had been sought.
It a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, then the professional employments is established.
Likewise, a lawyer-client relationship exists notwithstanding the close personal relationship between the lawyer and the complainant or the non-payment of the former’s fees.
Dean Wigmore lists the essential factors to establish the existence of the attorney-client privilege communication, viz:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.
The purpose of the rule of confidentiality is actually to protect the client from possible breach of confidence as a result of a consultation with a lawyer.
The seriousness of the respondent’s offense notwithstanding, the Court feels that there is room for compassion, absent compelling evidence that the respondent acted with ill-will. Without meaning to condone the error of respondent’s ways, what at bottom is before the Court is two former friends becoming bitter enemies and filing charges and counter-charges against each other using whatever convenient tools and data were readily available. Unfortunately, the personal information respondent gathered from her conversation with complainant became handy in her quest to even the score. At the end of the day, it appears clear to us that respondent was actuated by the urge to retaliate without perhaps realizing that, in the process of giving vent to a negative sentiment, she was violating the rule on confidentiality.
Environment and the Courts
In the very recent landmark case of METROPOLITAN MANILA DEVELOPMENT AUTHORITY, et. al. vs. CONCERNED RESIDENTS OF MANILA BAY, et. al., EN BANC, G.R. Nos. 171947-48, December 18, 2008, which I have digested below for legal research purposes of the visitors of this blog, the Supreme Court, in the spirit of justified judicial activism, issued the following ecology-related orders for the protection of the beautiful and historical waters of Manila Bay:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for the conservation, management, development, and proper use of the country’s environment and natural resources, and Sec. 19 of RA 9275, designating the DENR as the primary government agency responsible for its enforcement and implementation, the DENR is directed to fully implement its Operational Plan for the Manila Bay Coastal Strategy for the rehabilitation, restoration, and conservation of the Manila Bay at the earliest possible time. It is ordered to call regular coordination meetings with concerned government departments and agencies to ensure the successful implementation of the aforesaid plan of action in accordance with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25 of the Local Government Code of 1991, the DILG, in exercising the President’s power of general supervision and its duty to promulgate guidelines in establishing waste management programs under Sec. 43 of the Philippine Environment Code (PD 1152), shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect all factories, commercial establishments, and private homes along the banks of the major river systems in their respective areas of jurisdiction, such as but not limited to the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and waterways that eventually discharge water into the Manila Bay; and the lands abutting the bay, to determine whether they have wastewater treatment facilities or hygienic septic tanks as prescribed by existing laws, ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to require non-complying establishments and homes to set up said facilities or septic tanks within a reasonable time to prevent industrial wastes, sewage water, and human wastes from flowing into these rivers, waterways, esteros, and the Manila Bay, under pain of closure or imposition of fines and other sanctions.
(3) As mandated by Sec. 8 of RA 9275, the MWSS is directed to provide, install, operate, and maintain the necessary adequate waste water treatment facilities in Metro Manila, Rizal, and Cavite where needed at the earliest possible time.
(4) Pursuant to RA 9275, the LWUA, through the local water districts and in coordination with the DENR, is ordered to provide, install, operate, and maintain sewerage and sanitation facilities and the efficient and safe collection, treatment, and disposal of sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan where needed at the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550, the DA, through the BFAR, is ordered to improve and restore the marine life of the Manila Bay. It is also directed to assist the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan in developing, using recognized methods, the fisheries and aquatic resources in the Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in accordance with Sec. 124 of RA 8550, in coordination with each other, shall apprehend violators of PD 979, RA 8550, and other existing laws and regulations designed to prevent marine pollution in the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 513 and the International Convention for the Prevention of Pollution from Ships, the PPA is ordered to immediately adopt such measures to prevent the discharge and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports and apprehend the violators.
(8) The MMDA, as the lead agency and implementor of programs and projects for flood control projects and drainage services in Metro Manila, in coordination with the DPWH, DILG, affected LGUs, PNP Maritime Group, Housing and Urban Development Coordinating Council (HUDCC), and other agencies, shall dismantle and remove all structures, constructions, and other encroachments established or built in violation of RA 7279, and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros in Metro Manila. The DPWH, as the principal implementor of programs and projects for flood control services in the rest of the country more particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in coordination with the DILG, affected LGUs, PNP Maritime Group, HUDCC, and other concerned government agencies, shall remove and demolish all structures, constructions, and other encroachments built in breach of RA 7279 and other applicable laws along the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other rivers, connecting waterways, and esteros that discharge wastewater into the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as prescribed by RA 9003, within a period of one (1) year from finality of this Decision. On matters within its territorial jurisdiction and in connection with the discharge of its duties on the maintenance of sanitary landfills and like undertakings, it is also ordered to cause the apprehension and filing of the appropriate criminal cases against violators of the respective penal provisions of RA 9003, Sec. 27 of RA 9275 (the Clean Water Act), and other existing laws on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one (1) year from finality of this Decision, determine if all licensed septic and sludge companies have the proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks. The DOH shall give the companies, if found to be non-complying, a reasonable time within which to set up the necessary facilities under pain of cancellation of its environmental sanitation clearance.
(10) Pursuant to Sec. 53 of PD 1152, Sec. 118 of RA 8550, and Sec. 56 of RA 9003, the DepEd shall integrate lessons on pollution prevention, waste management, environmental protection, and like subjects in the school curricula of all levels to inculcate in the minds and hearts of students and, through them, their parents and friends, the importance of their duty toward achieving and maintaining a balanced and healthful ecosystem in the Manila Bay and the entire Philippine archipelago.
(11) The DBM shall consider incorporating an adequate budget in the General Appropriations Act of 2010 and succeeding years to cover the expenses relating to the cleanup, restoration, and preservation of the water quality of the Manila Bay, in line with the country’s development objective to attain economic growth in a manner consistent with the protection, preservation, and revival of our marine waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of “continuing mandamus,” shall, from finality of this Decision, each submit to the Court a quarterly progressive report of the activities undertaken in accordance with this Decision.
This case started when, on January 29, 1999, respondents Concerned Residents of Manila Bay filed a complaint before the Regional Trial Court (RTC) in Imus, Cavite against several government agencies, among them the petitioners, for the cleanup, rehabilitation, and protection of the Manila Bay. The complaint alleged that the water quality of the Manila Bay had fallen way below the allowable standards set by law, specifically Presidential Decree No. (PD) 1152 or the Philippine Environment Code.
In their individual causes of action, respondents alleged that the continued neglect of petitioners in abating the pollution of the Manila Bay constitutes a violation of, among others:
(1) Respondents’ constitutional right to life, health, and a balanced ecology;
(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);
(10) Civil Code provisions on nuisance and human relations;
(11) The Trust Doctrine and the Principle of Guardianship; and
(12) International Law
Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to clean the Manila Bay and submit to the RTC a concerted concrete plan of action for the purpose.
On September 13, 2002, the RTC rendered a Decision in favor of respondents. The dispositive portion reads:
WHEREFORE, finding merit in the complaint, judgment is hereby rendered ordering the abovenamed defendant-government agencies, jointly and solidarily, to clean up and rehabilitate Manila Bay and restore its waters to SB classification to make it fit for swimming, skin-diving and other forms of contact recreation. To attain this, defendant-agencies, with defendant DENR as the lead agency, are directed, within six (6) months from receipt hereof, to act and perform their respective duties by devising a consolidated, coordinated and concerted scheme of action for the rehabilitation and restoration of the bay.
In particular:
Defendant MWSS is directed to install, operate and maintain adequate [sewerage] treatment facilities in strategic places under its jurisdiction and increase their capacities.
Defendant LWUA, to see to it that the water districts under its wings, provide, construct and operate sewage facilities for the proper disposal of waste.
Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install, operate and maintain waste facilities to rid the bay of toxic and hazardous substances.
Defendant PPA, to prevent and also to treat the discharge not only of ship-generated wastes but also of other solid and liquid wastes from docking vessels that contribute to the pollution of the bay.
Defendant MMDA, to establish, operate and maintain an adequate and appropriate sanitary landfill and/or adequate solid waste and liquid disposal as well as other alternative garbage disposal system such as re-use or recycling of wastes.
Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to revitalize the marine life in Manila Bay and restock its waters with indigenous fish and other aquatic animals.
Defendant DBM, to provide and set aside an adequate budget solely for the purpose of cleaning up and rehabilitation of Manila Bay.
Defendant DPWH, to remove and demolish structures and other nuisances that obstruct the free flow of waters to the bay. These nuisances discharge solid and liquid wastes which eventually end up in Manila Bay. As the construction and engineering arm of the government, DPWH is ordered to actively participate in removing debris, such as carcass of sunken vessels, and other non-biodegradable garbage in the bay.
Defendant DOH, to closely supervise and monitor the operations of septic and sludge companies and require them to have proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks.
Defendant DECS, to inculcate in the minds and hearts of the people through education the importance of preserving and protecting the environment.
Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all costs the Manila Bay from all forms of illegal fishing.
No pronouncement as to damages and costs.
SO ORDERED.
The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the Court of Appeals (CA) individual Notices of Appeal which were eventually consolidated and docketed as CA-G.R. CV No. 76528.
On the other hand, the DENR, Department of Public Works and Highways (DPWH), Metropolitan Manila Development Authority (MMDA), Philippine Coast Guard (PCG), Philippine National Police (PNP) Maritime Group, and five other executive departments and agencies filed directly with this Court a petition for review under Rule 45. The Court, in a Resolution of December 9, 2002, sent the said petition to the CA for consolidation with the consolidated appeals of MWSS, LWUA, and PPA, docketed as CA-G.R. SP No. 74944.
Petitioners, before the CA, were one in arguing in the main that the pertinent provisions of the Environment Code (PD 1152) relate only to the cleaning of specific pollution incidents and do not cover cleaning in general. And apart from raising concerns about the lack of funds appropriated for cleaning purposes, petitioners also asserted that the cleaning of the Manila Bay is not a ministerial act which can be compelled by mandamus.
By a Decision of September 28, 2005, the CA denied petitioners’ appeal and affirmed the Decision of the RTC in toto, stressing that the trial court’s decision did not require petitioners to do tasks outside of their usual basic functions under existing laws.
The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the headings, Upgrading of Water Quality and Clean-up Operations, envisage a cleanup in general or are they limited only to the cleanup of specific pollution incidents? And second, can petitioners be compelled by mandamus to clean up and rehabilitate the Manila Bay?
Generally, the writ of mandamus lies to require the execution of a ministerial duty. A ministerial duty is one that “requires neither the exercise of official discretion nor judgment.” It connotes an act in which nothing is left to the discretion of the person executing it. It is a “simple, definite duty arising under conditions admitted or proved to exist and imposed by law.” Mandamus is available to compel action, when refused, on matters involving discretion, but not to direct the exercise of judgment or discretion one way or the other.
Petitioners maintain that the MMDA’s duty to take measures and maintain adequate solid waste and liquid disposal systems necessarily involves policy evaluation and the exercise of judgment on the part of the agency concerned. They argue that the MMDA, in carrying out its mandate, has to make decisions, including choosing where a landfill should be located by undertaking feasibility studies and cost estimates, all of which entail the exercise of discretion.
The Court agreed with the respondents, who countered that the statutory command is clear and that petitioners’ duty to comply with and act according to the clear mandate of the law does not require the exercise of discretion. According to respondents, petitioners, the MMDA in particular, are without discretion, for example, to choose which bodies of water they are to clean up, or which discharge or spill they are to contain. By the same token, respondents maintain that petitioners are bereft of discretion on whether or not to alleviate the problem of solid and liquid waste disposal; in other words, it is the MMDA’s ministerial duty to attend to such services.
The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management Act (RA 9003) which prescribes the minimum criteria for the establishment of sanitary landfills and Sec. 42 which provides the minimum operating requirements that each site operator shall maintain in the operation of a sanitary landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003, enjoining the MMDA and local government units, among others, after the effectivity of the law on February 15, 2001, from using and operating open dumps for solid waste and disallowing, five years after such effectivity, the use of controlled dumps.
The MMDA’s duty in the area of solid waste disposal, as may be noted, is set forth not only in the Environment Code (PD 1152) and RA 9003, but in its charter as well. This duty of putting up a proper waste disposal system cannot be characterized as discretionary, for, as earlier stated, discretion presupposes the power or right given by law to public functionaries to act officially according to their judgment or conscience. A discretionary duty is one that “allows a person to exercise judgment and choose to perform or not to perform.” Any suggestion that the MMDA has the option whether or not to perform its solid waste disposal-related duties ought to be dismissed for want of legal basis.
A perusal of other petitioners’ respective charters or like enabling statutes and pertinent laws would yield this conclusion: these government agencies are enjoined, as a matter of statutory obligation, to perform certain functions relating directly or indirectly to the cleanup, rehabilitation, protection, and preservation of the Manila Bay. They are precluded from choosing not to perform these duties. Consider:
(1) The DENR, under Executive Order No. (EO) 192, is the primary agency responsible for the conservation, management, development, and proper use of the country’s environment and natural resources. Sec. 19 of the Philippine Clean Water Act of 2004 (RA 9275), on the other hand, designates the DENR as the primary government agency responsible for its enforcement and implementation, more particularly over all aspects of water quality management. On water pollution, the DENR, under the Act’s Sec. 19(k), exercises jurisdiction “over all aspects of water pollution, determine[s] its location, magnitude, extent, severity, causes and effects and other pertinent information on pollution, and [takes] measures, using available methods and technologies, to prevent and abate such pollution.”
The DENR, under RA 9275, is also tasked to prepare a National Water Quality Status Report, an Integrated Water Quality Management Framework, and a 10-year Water Quality Management Area Action Plan which is nationwide in scope covering the Manila Bay and adjoining areas. Sec. 19 of RA 9275 provides:
Sec. 19 Lead Agency.––The [DENR] shall be the primary government agency responsible for the implementation and enforcement of this Act x x x unless otherwise provided herein. As such, it shall have the following functions, powers and responsibilities:
a) Prepare a National Water Quality Status report within twenty-four (24) months from the effectivity of this Act: Provided, That the Department shall thereafter review or revise and publish annually, or as the need arises, said report;
b) Prepare an Integrated Water Quality Management Framework within twelve (12) months following the completion of the status report;
c) Prepare a ten (10) year Water Quality Management Area Action Plan within 12 months following the completion of the framework for each designated water management area. Such action plan shall be reviewed by the water quality management area governing board every five (5) years or as need arises.
(2) The MWSS, under Sec. 3 of RA 6234, is vested with jurisdiction, supervision, and control over all waterworks and sewerage systems in the territory comprising what is now the cities of Metro Manila and several towns of the provinces of Rizal and Cavite, and charged with the duty:
(g) To construct, maintain, and operate such sanitary sewerages as may be necessary for the proper sanitation and other uses of the cities and towns comprising the System; x x x
(3) The LWUA under PD 198 has the power of supervision and control over local water districts. It can prescribe the minimum standards and regulations for the operations of these districts and shall monitor and evaluate local water standards. The LWUA can direct these districts to construct, operate, and furnish facilities and services for the collection, treatment, and disposal of sewerage, waste, and storm water. Additionally, under RA 9275, the LWUA, as attached agency of the DPWH, is tasked with providing sewerage and sanitation facilities, inclusive of the setting up of efficient and safe collection, treatment, and sewage disposal system in the different parts of the country. In relation to the instant petition, the LWUA is mandated to provide sewerage and sanitation facilities in Laguna, Cavite, Bulacan, Pampanga, and Bataan to prevent pollution in the Manila Bay.
(4) The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 (EO 292), is designated as the agency tasked to promulgate and enforce all laws and issuances respecting the conservation and proper utilization of agricultural and fishery resources. Furthermore, the DA, under the Philippine Fisheries Code of 1998 (RA 8550), is, in coordination with local government units (LGUs) and other concerned sectors, in charge of establishing a monitoring, control, and surveillance system to ensure that fisheries and aquatic resources in Philippine waters are judiciously utilized and managed on a sustainable basis. Likewise under RA 9275, the DA is charged with coordinating with the PCG and DENR for the enforcement of water quality standards in marine waters. More specifically, its Bureau of Fisheries and Aquatic Resources (BFAR) under Sec. 22(c) of RA 9275 shall primarily be responsible for the prevention and control of water pollution for the development, management, and conservation of the fisheries and aquatic resources.
(5) The DPWH, as the engineering and construction arm of the national government, is tasked under EO 292 to provide integrated planning, design, and construction services for, among others, flood control and water resource development systems in accordance with national development objectives and approved government plans and specifications.
In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to perform metro-wide services relating to “flood control and sewerage management which include the formulation and implementation of policies, standards, programs and projects for an integrated flood control, drainage and sewerage system.”
On July 9, 2002, a Memorandum of Agreement was entered into between the DPWH and MMDA, whereby MMDA was made the agency primarily responsible for flood control in Metro Manila. For the rest of the country, DPWH shall remain as the implementing agency for flood control services. The mandate of the MMDA and DPWH on flood control and drainage services shall include the removal of structures, constructions, and encroachments built along rivers, waterways, and esteros (drainages) in violation of RA 7279, PD 1067, and other pertinent laws.
(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law of 1974, and Sec. 6 of PD 979, or the Marine Pollution Decree of 1976, shall have the primary responsibility of enforcing laws, rules, and regulations governing marine pollution within the territorial waters of the Philippines. It shall promulgate its own rules and regulations in accordance with the national rules and policies set by the National Pollution Control Commission upon consultation with the latter for the effective implementation and enforcement of PD 979. It shall, under Sec. 4 of the law, apprehend violators who:
a. discharge, dump x x x harmful substances from or out of any ship, vessel, barge, or any other floating craft, or other man-made structures at sea, by any method, means or manner, into or upon the territorial and inland navigable waters of the Philippines;
b. throw, discharge or deposit, dump, or cause, suffer or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft or vessel of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state into tributary of any navigable water from which the same shall float or be washed into such navigable water; and
c. deposit x x x material of any kind in any place on the bank of any navigable water or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed or increase the level of pollution of such water.
(7) When RA 6975 or the Department of the Interior and Local Government (DILG) Act of 1990 was signed into law on December 13, 1990, the PNP Maritime Group was tasked to “perform all police functions over the Philippine territorial waters and rivers.” Under Sec. 86, RA 6975, the police functions of the PCG shall be taken over by the PNP when the latter acquires the capability to perform such functions. Since the PNP Maritime Group has not yet attained the capability to assume and perform the police functions of PCG over marine pollution, the PCG and PNP Maritime Group shall coordinate with regard to the enforcement of laws, rules, and regulations governing marine pollution within the territorial waters of the Philippines. This was made clear in Sec. 124, RA 8550 or the Philippine Fisheries Code of 1998, in which both the PCG and PNP Maritime Group were authorized to enforce said law and other fishery laws, rules, and regulations.
(8) In accordance with Sec. 2 of EO 513, the PPA is mandated “to establish, develop, regulate, manage and operate a rationalized national port system in support of trade and national development.” Moreover, Sec. 6-c of EO 513 states that the PPA has police authority within the
ports administered by it as may be necessary to carry out its powers and functions and attain its purposes and objectives, without prejudice to the exercise of the functions of the Bureau of Customs and other law enforcement bodies within the area. Such police authority shall include the following:
x x x x
b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as well as movement within the port of watercraft.
Lastly, as a member of the International Marine Organization and a signatory to the International Convention for the Prevention of Pollution from Ships, as amended by MARPOL 73/78, the Philippines, through the PPA, must ensure the provision of adequate reception facilities at ports and terminals for the reception of sewage from the ships docking in Philippine ports. Thus, the PPA is tasked to adopt such measures as are necessary to prevent the discharge and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports and apprehend the violators. When the vessels are not docked at ports but within Philippine territorial waters, it is the PCG and PNP Maritime Group that have jurisdiction over said vessels.
(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain adequate sanitary landfill and solid waste and liquid disposal system as well as other alternative garbage disposal systems. It is primarily responsible for the implementation and enforcement of the provisions of RA 9003, which would necessary include its penal provisions, within its area of jurisdiction.
Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are frequently violated are dumping of waste matters in public places, such as roads, canals or esteros, open burning of solid waste, squatting in open dumps and landfills, open dumping, burying of biodegradable or non- biodegradable materials in flood-prone areas, establishment or operation of open dumps as enjoined in RA 9003, and operation of waste management facilities without an environmental compliance certificate.
Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279), eviction or demolition may be allowed “when persons or entities occupy danger areas such as esteros, railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and other public places such as sidewalks, roads, parks and playgrounds.” The MMDA, as lead agency, in coordination with the DPWH, LGUs, and concerned agencies, can dismantle and remove all structures, constructions, and other encroachments built in breach of RA 7279 and other pertinent laws along the rivers, waterways, and esteros in Metro Manila. With respect to rivers, waterways, and esteros in Bulacan, Bataan, Pampanga, Cavite, and Laguna that discharge wastewater directly or eventually into the Manila Bay, the DILG shall direct the concerned LGUs to implement the demolition and removal of such structures, constructions, and other encroachments built in violation of RA 7279 and other applicable laws in coordination with the DPWH and concerned agencies.
(10) The Department of Health (DOH), under Article 76 of PD 1067 (the Water Code), is tasked to promulgate rules and regulations for the establishment of waste disposal areas that affect the source of a water supply or a reservoir for domestic or municipal use. And under Sec. 8 of RA 9275, the DOH, in coordination with the DENR, DPWH, and other concerned agencies, shall formulate guidelines and standards for the collection, treatment, and disposal of sewage and the establishment and operation of a centralized sewage treatment system. In areas not considered as highly urbanized cities, septage or a mix sewerage-septage management system shall be employed.
In accordance with Sec. 72 of PD 856, the Code of Sanitation of the Philippines, and Sec. 5.1.1 of Chapter XVII of its implementing rules, the DOH is also ordered to ensure the regulation and monitoring of the proper disposal of wastes by private sludge companies through the strict enforcement of the requirement to obtain an environmental sanitation clearance of sludge collection treatment and disposal before these companies are issued their environmental sanitation permit.
(11) The Department of Education (DepEd), under the Philippine Environment Code (PD 1152), is mandated to integrate subjects on environmental education in its school curricula at all levels. Under Sec. 118 of RA 8550, the DepEd, in collaboration with the DA, Commission on Higher Education, and Philippine Information Agency, shall launch and pursue a nationwide educational campaign to promote the development, management, conservation, and proper use of the environment. Under the Ecological Solid Waste Management Act (RA 9003), on the other hand, it is directed to strengthen the integration of environmental concerns in school curricula at all levels, with an emphasis on waste management principles.
(12) The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII of the Administrative Code of 1987 to ensure the efficient and sound utilization of government funds and revenues so as to effectively achieve the country’s development objectives.
One of the country’s development objectives is enshrined in RA 9275 or the Philippine Clean Water Act of 2004. This law stresses that the State shall pursue a policy of economic growth in a manner consistent with the protection, preservation, and revival of the quality of our fresh, brackish, and marine waters. It also provides that it is the policy of the government, among others, to streamline processes and procedures in the prevention, control, and abatement of pollution mechanisms for the protection of water resources; to promote environmental strategies and use of appropriate economic instruments and of control mechanisms for the protection of water resources; to formulate a holistic national program of water quality management that recognizes that issues related to this management cannot be separated from concerns about water sources and ecological protection, water supply, public health, and quality of life; and to provide a comprehensive management program for water pollution focusing on pollution prevention.
Thus, the DBM shall then endeavor to provide an adequate budget to attain the noble objectives of RA 9275 in line with the country’s development objectives.
Do Secs. 17 and 20 of the Environment Code encompass the cleanup of water pollution in general, not just specific pollution incidents?
The disputed sections are quoted as follows:
Section 17. Upgrading of Water Quality.––Where the quality of water has deteriorated to a degree where its state will adversely affect its best usage, the government agencies concerned shall take such measures as may be necessary to upgrade the quality of such water to meet the prescribed water quality standards.
Section 20. Clean-up Operations.––It shall be the responsibility of the polluter to contain, remove and clean-up water pollution incidents at his own expense. In case of his failure to do so, the government agencies concerned shall undertake containment, removal and clean-up operations and expenses incurred in said operations shall be charged against the persons and/or entities responsible for such pollution.
When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, Cleanup Operations, amended the counterpart provision (Sec. 20) of the Environment Code (PD 1152). Sec. 17 of PD 1152 continues, however, to be operational.
The amendatory Sec. 16 of RA 9275 reads:
SEC. 16. Cleanup Operations.––Notwithstanding the provisions of Sections 15 and 26 hereof, any person who causes pollution in or pollutes water bodies in excess of the applicable and prevailing standards shall be responsible to contain, remove and clean up any pollution incident at his own expense to the extent that the same water bodies have been rendered unfit for utilization and beneficial use: Provided, That in the event emergency cleanup operations are necessary and the polluter fails to immediately undertake the same, the [DENR] in coordination with other government agencies concerned, shall undertake containment, removal and cleanup operations. Expenses incurred in said operations shall be reimbursed by the persons found to have caused such pollution under proper administrative determination x x x. Reimbursements of the cost incurred shall be made to the Water Quality Management Fund or to such other funds where said disbursements were sourced.
Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the government agencies concerned to undertake containment, removal, and cleaning operations of a specific polluted portion or portions of the body of water concerned. They maintain that the application of said Sec. 20 is limited only to “water pollution incidents,” which are situations that presuppose the occurrence of specific, isolated pollution events requiring the corresponding containment, removal, and cleaning operations. Pushing the point further, they argue that the aforequoted Sec. 62(g) requires “cleanup operations” to restore the body of water to pre-spill condition, which means that there must have been a specific incident of either intentional or accidental spillage of oil or other hazardous substances, as mentioned in Sec. 62(h).
As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as delimiting the application of Sec. 20 to the containment, removal, and cleanup operations for accidental spills only. Contrary to petitioners’ posture, respondents assert that Sec. 62(g), in fact, even expanded the coverage of Sec. 20. Respondents explain that without its Sec. 62(g), PD 1152 may have indeed covered only pollution accumulating from the day-to-day operations of businesses around the Manila Bay and other sources of pollution that slowly accumulated in the bay. Respondents, however, emphasize that Sec. 62(g), far from being a delimiting provision, in fact even enlarged the operational scope of Sec. 20, by including accidental spills as among the water pollution incidents contemplated in Sec. 17 in relation to Sec. 20 of PD 1152.
Respondents are correct. For one thing, said Sec. 17 does not in any way state that the government agencies concerned ought to confine themselves to the containment, removal, and cleaning operations when a specific pollution incident occurs. On the contrary, Sec. 17 requires them to act even in the absence of a specific pollution incident, as long as water quality “has deteriorated to a degree where its state will adversely affect its best usage.” This section, to stress, commands concerned government agencies, when appropriate, “to take such measures as may be necessary to meet the prescribed water quality standards.” In fine, the underlying duty to upgrade the quality of water is not conditional on the occurrence of any pollution incident.
For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it is properly applicable to a specific situation in which the pollution is caused by polluters who fail to clean up the mess they left behind. In such instance, the concerned government agencies shall undertake the cleanup work for the polluters’ account. Petitioners’ assertion, that they have to perform cleanup operations in the Manila Bay only when there is a water pollution incident and the erring polluters do not undertake the containment, removal, and cleanup operations, is quite off mark. As earlier discussed, the complementary Sec. 17 of the Environment Code comes into play and the specific duties of the agencies to clean up come in even if there are no pollution incidents staring at them. Petitioners, thus, cannot plausibly invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the pretext that their cleanup mandate depends on the happening of a specific pollution incident. In this regard, what the CA said with respect to the impasse over Secs. 17 and 20 of PD 1152 is at once valid as it is practical. The appellate court wrote: “PD 1152 aims to introduce a comprehensive program of environmental protection and management. This is better served by making Secs. 17 & 20 of general application rather than limiting them to specific pollution incidents.”
The era of delays, procrastination, and ad hoc measures is over. Petitioners must transcend their limitations, real or imaginary, and buckle down to work before the problem at hand becomes unmanageable. Thus, we must reiterate that different government agencies and instrumentalities cannot shirk from their mandates; they must perform their basic functions in cleaning up and rehabilitating the Manila Bay. We are disturbed by petitioners’ hiding behind two untenable claims: (1) that there ought to be a specific pollution incident before they are required to act; and (2) that the cleanup of the bay is a discretionary duty.
RA 9003 is a sweeping piece of legislation enacted to radically transform and improve waste management. It implements Sec. 16, Art. II of the 1987 Constitution, which explicitly provides that the State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.
So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and healthful ecology need not even be written in the Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental importance with intergenerational implications. Even assuming the absence of a categorical legal provision specifically prodding petitioners to clean up the bay, they and the men and women representing them cannot escape their obligation to future generations of Filipinos to keep the waters of the Manila Bay clean and clear as humanly as possible. Anything less would be a betrayal of the trust reposed in them.
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for the conservation, management, development, and proper use of the country’s environment and natural resources, and Sec. 19 of RA 9275, designating the DENR as the primary government agency responsible for its enforcement and implementation, the DENR is directed to fully implement its Operational Plan for the Manila Bay Coastal Strategy for the rehabilitation, restoration, and conservation of the Manila Bay at the earliest possible time. It is ordered to call regular coordination meetings with concerned government departments and agencies to ensure the successful implementation of the aforesaid plan of action in accordance with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25 of the Local Government Code of 1991, the DILG, in exercising the President’s power of general supervision and its duty to promulgate guidelines in establishing waste management programs under Sec. 43 of the Philippine Environment Code (PD 1152), shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect all factories, commercial establishments, and private homes along the banks of the major river systems in their respective areas of jurisdiction, such as but not limited to the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and waterways that eventually discharge water into the Manila Bay; and the lands abutting the bay, to determine whether they have wastewater treatment facilities or hygienic septic tanks as prescribed by existing laws, ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to require non-complying establishments and homes to set up said facilities or septic tanks within a reasonable time to prevent industrial wastes, sewage water, and human wastes from flowing into these rivers, waterways, esteros, and the Manila Bay, under pain of closure or imposition of fines and other sanctions.
(3) As mandated by Sec. 8 of RA 9275, the MWSS is directed to provide, install, operate, and maintain the necessary adequate waste water treatment facilities in Metro Manila, Rizal, and Cavite where needed at the earliest possible time.
(4) Pursuant to RA 9275, the LWUA, through the local water districts and in coordination with the DENR, is ordered to provide, install, operate, and maintain sewerage and sanitation facilities and the efficient and safe collection, treatment, and disposal of sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan where needed at the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550, the DA, through the BFAR, is ordered to improve and restore the marine life of the Manila Bay. It is also directed to assist the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan in developing, using recognized methods, the fisheries and aquatic resources in the Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in accordance with Sec. 124 of RA 8550, in coordination with each other, shall apprehend violators of PD 979, RA 8550, and other existing laws and regulations designed to prevent marine pollution in the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 513 and the International Convention for the Prevention of Pollution from Ships, the PPA is ordered to immediately adopt such measures to prevent the discharge and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports and apprehend the violators.
(8) The MMDA, as the lead agency and implementor of programs and projects for flood control projects and drainage services in Metro Manila, in coordination with the DPWH, DILG, affected LGUs, PNP Maritime Group, Housing and Urban Development Coordinating Council (HUDCC), and other agencies, shall dismantle and remove all structures, constructions, and other encroachments established or built in violation of RA 7279, and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros in Metro Manila. The DPWH, as the principal implementor of programs and projects for flood control services in the rest of the country more particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in coordination with the DILG, affected LGUs, PNP Maritime Group, HUDCC, and other concerned government agencies, shall remove and demolish all structures, constructions, and other encroachments built in breach of RA 7279 and other applicable laws along the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other rivers, connecting waterways, and esteros that discharge wastewater into the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as prescribed by RA 9003, within a period of one (1) year from finality of this Decision. On matters within its territorial jurisdiction and in connection with the discharge of its duties on the maintenance of sanitary landfills and like undertakings, it is also ordered to cause the apprehension and filing of the appropriate criminal cases against violators of the respective penal provisions of RA 9003, Sec. 27 of RA 9275 (the Clean Water Act), and other existing laws on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one (1) year from finality of this Decision, determine if all licensed septic and sludge companies have the proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks. The DOH shall give the companies, if found to be non-complying, a reasonable time within which to set up the necessary facilities under pain of cancellation of its environmental sanitation clearance.
(10) Pursuant to Sec. 53 of PD 1152, Sec. 118 of RA 8550, and Sec. 56 of RA 9003, the DepEd shall integrate lessons on pollution prevention, waste management, environmental protection, and like subjects in the school curricula of all levels to inculcate in the minds and hearts of students and, through them, their parents and friends, the importance of their duty toward achieving and maintaining a balanced and healthful ecosystem in the Manila Bay and the entire Philippine archipelago.
(11) The DBM shall consider incorporating an adequate budget in the General Appropriations Act of 2010 and succeeding years to cover the expenses relating to the cleanup, restoration, and preservation of the water quality of the Manila Bay, in line with the country’s development objective to attain economic growth in a manner consistent with the protection, preservation, and revival of our marine waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of “continuing mandamus,” shall, from finality of this Decision, each submit to the Court a quarterly progressive report of the activities undertaken in accordance with this Decision.
This case started when, on January 29, 1999, respondents Concerned Residents of Manila Bay filed a complaint before the Regional Trial Court (RTC) in Imus, Cavite against several government agencies, among them the petitioners, for the cleanup, rehabilitation, and protection of the Manila Bay. The complaint alleged that the water quality of the Manila Bay had fallen way below the allowable standards set by law, specifically Presidential Decree No. (PD) 1152 or the Philippine Environment Code.
In their individual causes of action, respondents alleged that the continued neglect of petitioners in abating the pollution of the Manila Bay constitutes a violation of, among others:
(1) Respondents’ constitutional right to life, health, and a balanced ecology;
(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);
(10) Civil Code provisions on nuisance and human relations;
(11) The Trust Doctrine and the Principle of Guardianship; and
(12) International Law
Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to clean the Manila Bay and submit to the RTC a concerted concrete plan of action for the purpose.
On September 13, 2002, the RTC rendered a Decision in favor of respondents. The dispositive portion reads:
WHEREFORE, finding merit in the complaint, judgment is hereby rendered ordering the abovenamed defendant-government agencies, jointly and solidarily, to clean up and rehabilitate Manila Bay and restore its waters to SB classification to make it fit for swimming, skin-diving and other forms of contact recreation. To attain this, defendant-agencies, with defendant DENR as the lead agency, are directed, within six (6) months from receipt hereof, to act and perform their respective duties by devising a consolidated, coordinated and concerted scheme of action for the rehabilitation and restoration of the bay.
In particular:
Defendant MWSS is directed to install, operate and maintain adequate [sewerage] treatment facilities in strategic places under its jurisdiction and increase their capacities.
Defendant LWUA, to see to it that the water districts under its wings, provide, construct and operate sewage facilities for the proper disposal of waste.
Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install, operate and maintain waste facilities to rid the bay of toxic and hazardous substances.
Defendant PPA, to prevent and also to treat the discharge not only of ship-generated wastes but also of other solid and liquid wastes from docking vessels that contribute to the pollution of the bay.
Defendant MMDA, to establish, operate and maintain an adequate and appropriate sanitary landfill and/or adequate solid waste and liquid disposal as well as other alternative garbage disposal system such as re-use or recycling of wastes.
Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to revitalize the marine life in Manila Bay and restock its waters with indigenous fish and other aquatic animals.
Defendant DBM, to provide and set aside an adequate budget solely for the purpose of cleaning up and rehabilitation of Manila Bay.
Defendant DPWH, to remove and demolish structures and other nuisances that obstruct the free flow of waters to the bay. These nuisances discharge solid and liquid wastes which eventually end up in Manila Bay. As the construction and engineering arm of the government, DPWH is ordered to actively participate in removing debris, such as carcass of sunken vessels, and other non-biodegradable garbage in the bay.
Defendant DOH, to closely supervise and monitor the operations of septic and sludge companies and require them to have proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks.
Defendant DECS, to inculcate in the minds and hearts of the people through education the importance of preserving and protecting the environment.
Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all costs the Manila Bay from all forms of illegal fishing.
No pronouncement as to damages and costs.
SO ORDERED.
The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the Court of Appeals (CA) individual Notices of Appeal which were eventually consolidated and docketed as CA-G.R. CV No. 76528.
On the other hand, the DENR, Department of Public Works and Highways (DPWH), Metropolitan Manila Development Authority (MMDA), Philippine Coast Guard (PCG), Philippine National Police (PNP) Maritime Group, and five other executive departments and agencies filed directly with this Court a petition for review under Rule 45. The Court, in a Resolution of December 9, 2002, sent the said petition to the CA for consolidation with the consolidated appeals of MWSS, LWUA, and PPA, docketed as CA-G.R. SP No. 74944.
Petitioners, before the CA, were one in arguing in the main that the pertinent provisions of the Environment Code (PD 1152) relate only to the cleaning of specific pollution incidents and do not cover cleaning in general. And apart from raising concerns about the lack of funds appropriated for cleaning purposes, petitioners also asserted that the cleaning of the Manila Bay is not a ministerial act which can be compelled by mandamus.
By a Decision of September 28, 2005, the CA denied petitioners’ appeal and affirmed the Decision of the RTC in toto, stressing that the trial court’s decision did not require petitioners to do tasks outside of their usual basic functions under existing laws.
The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the headings, Upgrading of Water Quality and Clean-up Operations, envisage a cleanup in general or are they limited only to the cleanup of specific pollution incidents? And second, can petitioners be compelled by mandamus to clean up and rehabilitate the Manila Bay?
Generally, the writ of mandamus lies to require the execution of a ministerial duty. A ministerial duty is one that “requires neither the exercise of official discretion nor judgment.” It connotes an act in which nothing is left to the discretion of the person executing it. It is a “simple, definite duty arising under conditions admitted or proved to exist and imposed by law.” Mandamus is available to compel action, when refused, on matters involving discretion, but not to direct the exercise of judgment or discretion one way or the other.
Petitioners maintain that the MMDA’s duty to take measures and maintain adequate solid waste and liquid disposal systems necessarily involves policy evaluation and the exercise of judgment on the part of the agency concerned. They argue that the MMDA, in carrying out its mandate, has to make decisions, including choosing where a landfill should be located by undertaking feasibility studies and cost estimates, all of which entail the exercise of discretion.
The Court agreed with the respondents, who countered that the statutory command is clear and that petitioners’ duty to comply with and act according to the clear mandate of the law does not require the exercise of discretion. According to respondents, petitioners, the MMDA in particular, are without discretion, for example, to choose which bodies of water they are to clean up, or which discharge or spill they are to contain. By the same token, respondents maintain that petitioners are bereft of discretion on whether or not to alleviate the problem of solid and liquid waste disposal; in other words, it is the MMDA’s ministerial duty to attend to such services.
The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management Act (RA 9003) which prescribes the minimum criteria for the establishment of sanitary landfills and Sec. 42 which provides the minimum operating requirements that each site operator shall maintain in the operation of a sanitary landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003, enjoining the MMDA and local government units, among others, after the effectivity of the law on February 15, 2001, from using and operating open dumps for solid waste and disallowing, five years after such effectivity, the use of controlled dumps.
The MMDA’s duty in the area of solid waste disposal, as may be noted, is set forth not only in the Environment Code (PD 1152) and RA 9003, but in its charter as well. This duty of putting up a proper waste disposal system cannot be characterized as discretionary, for, as earlier stated, discretion presupposes the power or right given by law to public functionaries to act officially according to their judgment or conscience. A discretionary duty is one that “allows a person to exercise judgment and choose to perform or not to perform.” Any suggestion that the MMDA has the option whether or not to perform its solid waste disposal-related duties ought to be dismissed for want of legal basis.
A perusal of other petitioners’ respective charters or like enabling statutes and pertinent laws would yield this conclusion: these government agencies are enjoined, as a matter of statutory obligation, to perform certain functions relating directly or indirectly to the cleanup, rehabilitation, protection, and preservation of the Manila Bay. They are precluded from choosing not to perform these duties. Consider:
(1) The DENR, under Executive Order No. (EO) 192, is the primary agency responsible for the conservation, management, development, and proper use of the country’s environment and natural resources. Sec. 19 of the Philippine Clean Water Act of 2004 (RA 9275), on the other hand, designates the DENR as the primary government agency responsible for its enforcement and implementation, more particularly over all aspects of water quality management. On water pollution, the DENR, under the Act’s Sec. 19(k), exercises jurisdiction “over all aspects of water pollution, determine[s] its location, magnitude, extent, severity, causes and effects and other pertinent information on pollution, and [takes] measures, using available methods and technologies, to prevent and abate such pollution.”
The DENR, under RA 9275, is also tasked to prepare a National Water Quality Status Report, an Integrated Water Quality Management Framework, and a 10-year Water Quality Management Area Action Plan which is nationwide in scope covering the Manila Bay and adjoining areas. Sec. 19 of RA 9275 provides:
Sec. 19 Lead Agency.––The [DENR] shall be the primary government agency responsible for the implementation and enforcement of this Act x x x unless otherwise provided herein. As such, it shall have the following functions, powers and responsibilities:
a) Prepare a National Water Quality Status report within twenty-four (24) months from the effectivity of this Act: Provided, That the Department shall thereafter review or revise and publish annually, or as the need arises, said report;
b) Prepare an Integrated Water Quality Management Framework within twelve (12) months following the completion of the status report;
c) Prepare a ten (10) year Water Quality Management Area Action Plan within 12 months following the completion of the framework for each designated water management area. Such action plan shall be reviewed by the water quality management area governing board every five (5) years or as need arises.
(2) The MWSS, under Sec. 3 of RA 6234, is vested with jurisdiction, supervision, and control over all waterworks and sewerage systems in the territory comprising what is now the cities of Metro Manila and several towns of the provinces of Rizal and Cavite, and charged with the duty:
(g) To construct, maintain, and operate such sanitary sewerages as may be necessary for the proper sanitation and other uses of the cities and towns comprising the System; x x x
(3) The LWUA under PD 198 has the power of supervision and control over local water districts. It can prescribe the minimum standards and regulations for the operations of these districts and shall monitor and evaluate local water standards. The LWUA can direct these districts to construct, operate, and furnish facilities and services for the collection, treatment, and disposal of sewerage, waste, and storm water. Additionally, under RA 9275, the LWUA, as attached agency of the DPWH, is tasked with providing sewerage and sanitation facilities, inclusive of the setting up of efficient and safe collection, treatment, and sewage disposal system in the different parts of the country. In relation to the instant petition, the LWUA is mandated to provide sewerage and sanitation facilities in Laguna, Cavite, Bulacan, Pampanga, and Bataan to prevent pollution in the Manila Bay.
(4) The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 (EO 292), is designated as the agency tasked to promulgate and enforce all laws and issuances respecting the conservation and proper utilization of agricultural and fishery resources. Furthermore, the DA, under the Philippine Fisheries Code of 1998 (RA 8550), is, in coordination with local government units (LGUs) and other concerned sectors, in charge of establishing a monitoring, control, and surveillance system to ensure that fisheries and aquatic resources in Philippine waters are judiciously utilized and managed on a sustainable basis. Likewise under RA 9275, the DA is charged with coordinating with the PCG and DENR for the enforcement of water quality standards in marine waters. More specifically, its Bureau of Fisheries and Aquatic Resources (BFAR) under Sec. 22(c) of RA 9275 shall primarily be responsible for the prevention and control of water pollution for the development, management, and conservation of the fisheries and aquatic resources.
(5) The DPWH, as the engineering and construction arm of the national government, is tasked under EO 292 to provide integrated planning, design, and construction services for, among others, flood control and water resource development systems in accordance with national development objectives and approved government plans and specifications.
In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to perform metro-wide services relating to “flood control and sewerage management which include the formulation and implementation of policies, standards, programs and projects for an integrated flood control, drainage and sewerage system.”
On July 9, 2002, a Memorandum of Agreement was entered into between the DPWH and MMDA, whereby MMDA was made the agency primarily responsible for flood control in Metro Manila. For the rest of the country, DPWH shall remain as the implementing agency for flood control services. The mandate of the MMDA and DPWH on flood control and drainage services shall include the removal of structures, constructions, and encroachments built along rivers, waterways, and esteros (drainages) in violation of RA 7279, PD 1067, and other pertinent laws.
(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law of 1974, and Sec. 6 of PD 979, or the Marine Pollution Decree of 1976, shall have the primary responsibility of enforcing laws, rules, and regulations governing marine pollution within the territorial waters of the Philippines. It shall promulgate its own rules and regulations in accordance with the national rules and policies set by the National Pollution Control Commission upon consultation with the latter for the effective implementation and enforcement of PD 979. It shall, under Sec. 4 of the law, apprehend violators who:
a. discharge, dump x x x harmful substances from or out of any ship, vessel, barge, or any other floating craft, or other man-made structures at sea, by any method, means or manner, into or upon the territorial and inland navigable waters of the Philippines;
b. throw, discharge or deposit, dump, or cause, suffer or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft or vessel of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state into tributary of any navigable water from which the same shall float or be washed into such navigable water; and
c. deposit x x x material of any kind in any place on the bank of any navigable water or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed or increase the level of pollution of such water.
(7) When RA 6975 or the Department of the Interior and Local Government (DILG) Act of 1990 was signed into law on December 13, 1990, the PNP Maritime Group was tasked to “perform all police functions over the Philippine territorial waters and rivers.” Under Sec. 86, RA 6975, the police functions of the PCG shall be taken over by the PNP when the latter acquires the capability to perform such functions. Since the PNP Maritime Group has not yet attained the capability to assume and perform the police functions of PCG over marine pollution, the PCG and PNP Maritime Group shall coordinate with regard to the enforcement of laws, rules, and regulations governing marine pollution within the territorial waters of the Philippines. This was made clear in Sec. 124, RA 8550 or the Philippine Fisheries Code of 1998, in which both the PCG and PNP Maritime Group were authorized to enforce said law and other fishery laws, rules, and regulations.
(8) In accordance with Sec. 2 of EO 513, the PPA is mandated “to establish, develop, regulate, manage and operate a rationalized national port system in support of trade and national development.” Moreover, Sec. 6-c of EO 513 states that the PPA has police authority within the
ports administered by it as may be necessary to carry out its powers and functions and attain its purposes and objectives, without prejudice to the exercise of the functions of the Bureau of Customs and other law enforcement bodies within the area. Such police authority shall include the following:
x x x x
b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as well as movement within the port of watercraft.
Lastly, as a member of the International Marine Organization and a signatory to the International Convention for the Prevention of Pollution from Ships, as amended by MARPOL 73/78, the Philippines, through the PPA, must ensure the provision of adequate reception facilities at ports and terminals for the reception of sewage from the ships docking in Philippine ports. Thus, the PPA is tasked to adopt such measures as are necessary to prevent the discharge and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports and apprehend the violators. When the vessels are not docked at ports but within Philippine territorial waters, it is the PCG and PNP Maritime Group that have jurisdiction over said vessels.
(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain adequate sanitary landfill and solid waste and liquid disposal system as well as other alternative garbage disposal systems. It is primarily responsible for the implementation and enforcement of the provisions of RA 9003, which would necessary include its penal provisions, within its area of jurisdiction.
Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are frequently violated are dumping of waste matters in public places, such as roads, canals or esteros, open burning of solid waste, squatting in open dumps and landfills, open dumping, burying of biodegradable or non- biodegradable materials in flood-prone areas, establishment or operation of open dumps as enjoined in RA 9003, and operation of waste management facilities without an environmental compliance certificate.
Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279), eviction or demolition may be allowed “when persons or entities occupy danger areas such as esteros, railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and other public places such as sidewalks, roads, parks and playgrounds.” The MMDA, as lead agency, in coordination with the DPWH, LGUs, and concerned agencies, can dismantle and remove all structures, constructions, and other encroachments built in breach of RA 7279 and other pertinent laws along the rivers, waterways, and esteros in Metro Manila. With respect to rivers, waterways, and esteros in Bulacan, Bataan, Pampanga, Cavite, and Laguna that discharge wastewater directly or eventually into the Manila Bay, the DILG shall direct the concerned LGUs to implement the demolition and removal of such structures, constructions, and other encroachments built in violation of RA 7279 and other applicable laws in coordination with the DPWH and concerned agencies.
(10) The Department of Health (DOH), under Article 76 of PD 1067 (the Water Code), is tasked to promulgate rules and regulations for the establishment of waste disposal areas that affect the source of a water supply or a reservoir for domestic or municipal use. And under Sec. 8 of RA 9275, the DOH, in coordination with the DENR, DPWH, and other concerned agencies, shall formulate guidelines and standards for the collection, treatment, and disposal of sewage and the establishment and operation of a centralized sewage treatment system. In areas not considered as highly urbanized cities, septage or a mix sewerage-septage management system shall be employed.
In accordance with Sec. 72 of PD 856, the Code of Sanitation of the Philippines, and Sec. 5.1.1 of Chapter XVII of its implementing rules, the DOH is also ordered to ensure the regulation and monitoring of the proper disposal of wastes by private sludge companies through the strict enforcement of the requirement to obtain an environmental sanitation clearance of sludge collection treatment and disposal before these companies are issued their environmental sanitation permit.
(11) The Department of Education (DepEd), under the Philippine Environment Code (PD 1152), is mandated to integrate subjects on environmental education in its school curricula at all levels. Under Sec. 118 of RA 8550, the DepEd, in collaboration with the DA, Commission on Higher Education, and Philippine Information Agency, shall launch and pursue a nationwide educational campaign to promote the development, management, conservation, and proper use of the environment. Under the Ecological Solid Waste Management Act (RA 9003), on the other hand, it is directed to strengthen the integration of environmental concerns in school curricula at all levels, with an emphasis on waste management principles.
(12) The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII of the Administrative Code of 1987 to ensure the efficient and sound utilization of government funds and revenues so as to effectively achieve the country’s development objectives.
One of the country’s development objectives is enshrined in RA 9275 or the Philippine Clean Water Act of 2004. This law stresses that the State shall pursue a policy of economic growth in a manner consistent with the protection, preservation, and revival of the quality of our fresh, brackish, and marine waters. It also provides that it is the policy of the government, among others, to streamline processes and procedures in the prevention, control, and abatement of pollution mechanisms for the protection of water resources; to promote environmental strategies and use of appropriate economic instruments and of control mechanisms for the protection of water resources; to formulate a holistic national program of water quality management that recognizes that issues related to this management cannot be separated from concerns about water sources and ecological protection, water supply, public health, and quality of life; and to provide a comprehensive management program for water pollution focusing on pollution prevention.
Thus, the DBM shall then endeavor to provide an adequate budget to attain the noble objectives of RA 9275 in line with the country’s development objectives.
Do Secs. 17 and 20 of the Environment Code encompass the cleanup of water pollution in general, not just specific pollution incidents?
The disputed sections are quoted as follows:
Section 17. Upgrading of Water Quality.––Where the quality of water has deteriorated to a degree where its state will adversely affect its best usage, the government agencies concerned shall take such measures as may be necessary to upgrade the quality of such water to meet the prescribed water quality standards.
Section 20. Clean-up Operations.––It shall be the responsibility of the polluter to contain, remove and clean-up water pollution incidents at his own expense. In case of his failure to do so, the government agencies concerned shall undertake containment, removal and clean-up operations and expenses incurred in said operations shall be charged against the persons and/or entities responsible for such pollution.
When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, Cleanup Operations, amended the counterpart provision (Sec. 20) of the Environment Code (PD 1152). Sec. 17 of PD 1152 continues, however, to be operational.
The amendatory Sec. 16 of RA 9275 reads:
SEC. 16. Cleanup Operations.––Notwithstanding the provisions of Sections 15 and 26 hereof, any person who causes pollution in or pollutes water bodies in excess of the applicable and prevailing standards shall be responsible to contain, remove and clean up any pollution incident at his own expense to the extent that the same water bodies have been rendered unfit for utilization and beneficial use: Provided, That in the event emergency cleanup operations are necessary and the polluter fails to immediately undertake the same, the [DENR] in coordination with other government agencies concerned, shall undertake containment, removal and cleanup operations. Expenses incurred in said operations shall be reimbursed by the persons found to have caused such pollution under proper administrative determination x x x. Reimbursements of the cost incurred shall be made to the Water Quality Management Fund or to such other funds where said disbursements were sourced.
Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the government agencies concerned to undertake containment, removal, and cleaning operations of a specific polluted portion or portions of the body of water concerned. They maintain that the application of said Sec. 20 is limited only to “water pollution incidents,” which are situations that presuppose the occurrence of specific, isolated pollution events requiring the corresponding containment, removal, and cleaning operations. Pushing the point further, they argue that the aforequoted Sec. 62(g) requires “cleanup operations” to restore the body of water to pre-spill condition, which means that there must have been a specific incident of either intentional or accidental spillage of oil or other hazardous substances, as mentioned in Sec. 62(h).
As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as delimiting the application of Sec. 20 to the containment, removal, and cleanup operations for accidental spills only. Contrary to petitioners’ posture, respondents assert that Sec. 62(g), in fact, even expanded the coverage of Sec. 20. Respondents explain that without its Sec. 62(g), PD 1152 may have indeed covered only pollution accumulating from the day-to-day operations of businesses around the Manila Bay and other sources of pollution that slowly accumulated in the bay. Respondents, however, emphasize that Sec. 62(g), far from being a delimiting provision, in fact even enlarged the operational scope of Sec. 20, by including accidental spills as among the water pollution incidents contemplated in Sec. 17 in relation to Sec. 20 of PD 1152.
Respondents are correct. For one thing, said Sec. 17 does not in any way state that the government agencies concerned ought to confine themselves to the containment, removal, and cleaning operations when a specific pollution incident occurs. On the contrary, Sec. 17 requires them to act even in the absence of a specific pollution incident, as long as water quality “has deteriorated to a degree where its state will adversely affect its best usage.” This section, to stress, commands concerned government agencies, when appropriate, “to take such measures as may be necessary to meet the prescribed water quality standards.” In fine, the underlying duty to upgrade the quality of water is not conditional on the occurrence of any pollution incident.
For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it is properly applicable to a specific situation in which the pollution is caused by polluters who fail to clean up the mess they left behind. In such instance, the concerned government agencies shall undertake the cleanup work for the polluters’ account. Petitioners’ assertion, that they have to perform cleanup operations in the Manila Bay only when there is a water pollution incident and the erring polluters do not undertake the containment, removal, and cleanup operations, is quite off mark. As earlier discussed, the complementary Sec. 17 of the Environment Code comes into play and the specific duties of the agencies to clean up come in even if there are no pollution incidents staring at them. Petitioners, thus, cannot plausibly invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the pretext that their cleanup mandate depends on the happening of a specific pollution incident. In this regard, what the CA said with respect to the impasse over Secs. 17 and 20 of PD 1152 is at once valid as it is practical. The appellate court wrote: “PD 1152 aims to introduce a comprehensive program of environmental protection and management. This is better served by making Secs. 17 & 20 of general application rather than limiting them to specific pollution incidents.”
The era of delays, procrastination, and ad hoc measures is over. Petitioners must transcend their limitations, real or imaginary, and buckle down to work before the problem at hand becomes unmanageable. Thus, we must reiterate that different government agencies and instrumentalities cannot shirk from their mandates; they must perform their basic functions in cleaning up and rehabilitating the Manila Bay. We are disturbed by petitioners’ hiding behind two untenable claims: (1) that there ought to be a specific pollution incident before they are required to act; and (2) that the cleanup of the bay is a discretionary duty.
RA 9003 is a sweeping piece of legislation enacted to radically transform and improve waste management. It implements Sec. 16, Art. II of the 1987 Constitution, which explicitly provides that the State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.
So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and healthful ecology need not even be written in the Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental importance with intergenerational implications. Even assuming the absence of a categorical legal provision specifically prodding petitioners to clean up the bay, they and the men and women representing them cannot escape their obligation to future generations of Filipinos to keep the waters of the Manila Bay clean and clear as humanly as possible. Anything less would be a betrayal of the trust reposed in them.