Orig Cases

HUMAN RIGHTS LAW Original Cases Title of the Case - Facts Ruling Relevant Consti Provision
Govt of Hong Kong vs. Judge Olalia- Bail can be granted in extradition proceedings. Prolonged deprivation of the extraditee. Case was remanded. Extraditee must prove by clear and convincing evidence that he is not a flight risk. For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) the Order dated December 20, 2001 allowing Juan Antonio Muoz, private respondent, to post bail; and (2) the Order dated April 10, 2002 denying the motion to vacate the said Order of December 20, 2001 filed by the Government of Hong Kong Special Administrative Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges that both Orders were issued by respondent judge with grave abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee. The facts are: On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20, 1997. On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and became the Hong Kong Special Administrative Region. Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to defraud, penalized by the common law of Hong Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued against him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge. On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional arrest of private respondent. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of private respondent. On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That same day, the NBI agents arrested and detained him. On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari, prohibition and mandamus with application for preliminary mandatory injunction and/or writ of habeas corpus questioning the validity of the Order of Arrest. On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void. On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as G.R. No. 140520, praying that the Decision of the Court of Appeals be reversed. On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining the validity of the Order of Arrest against private respondent. The Decision became final and executory on April 10, 2001. Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil Case No. 99-95733, raffled off
to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the same case,- a petition for bail which was opposed by petitioner. After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk." On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733. It was then raffled off to Branch 8 presided by respondent judge. On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his application for bail. This was granted by respondent judge in an Order dated December 20, 2001 allowing private respondent to post bail, thus: In conclusion, this Court will not contribute to accuseds further erosion of civil liberties. The petition for bail is granted subject to the following conditions: 1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will appear and answer the issues raised in these proceedings and will at all times hold himself amenable to orders and processes of this Court, will further appear for judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor of the government; 2. Accused must surrender his valid passport to this Court; 3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold departure order before this Court even in extradition proceeding; and 4. Accused is required to report to the government prosecutors handling this case or if they so desire to the nearest office, at any time and day of the week; and if they further desire, manifest before this Court to require that all the assets of accused, real and personal, be filed with this Court soonest, with the condition that if the accused flees from his undertaking, said assets be forfeited in favor of the government and that the corresponding lien/annotation be noted therein accordingly. SO ORDERED. On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied by respondent judge in his Order dated April 10, 2002. Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceedings. In his comment on the petition, private respondent maintained that the right to bail guaranteed under the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged deprivation of ones liberty. Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance
as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time that this Court has an occasion to resolve the question of whether a prospective extraditee may be granted bail. In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the constitutional provision on bail does not apply to extradition proceedings. It is "available only in criminal proceedings," thus: x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. At first glance, the above ruling applies squarely to private respondents case. However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other. The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These significant events show that the individual person is now a valid subject of international law. On a more positive note, also after World War II, both international organizations and states gave recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of
every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of Prisons,2 this Court, in granting bail to a prospective deportee, held that under the Constitution,3 the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process. The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity of every human person and guarantees full respect for human rights." The Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to enable it to decide without delay on the legality of the detention and order their release if justified. In other words, the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. While this Court in Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various international treaties giving recognition and protection to human rights, particularly the right to life and liberty, a reexamination of this Courts ruling in Purganan is in order. First, we note that the exercise of the States power to deprive an individual of his liberty is not necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine,4 have likewise been detained. Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights. The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for failure to secure the necessary certificate of registration was granted bail pending his appeal. After noting that the prospective deportee had committed no crime, the Court opined that "To refuse him bail is to treat him as a person who has committed the most serious crime known to law;" and that while deportation is not a criminal proceeding, some of the machinery used "is the machinery of criminal law." Thus, the provisions relating to bail was applied to deportation proceedings. In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled that foreign nationals against whom no formal criminal charges have been filed may be released on bail pending the finality of an order of deportation. As previously stated, the Court in Mejoff relied upon the Universal declaration of Human Rights in sustaining the detainees right to bail. If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue. Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state.8 It is not a criminal proceeding.9 Even if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between different nations.11 It is not a trial to determine the guilt or innocence of the potential extraditee.12 Nor is it a fullblown civil action, but one that is merely administrative in character.13 Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment.14 But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the interest of justice." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional arrest of the accused, pending receipt of the request for extradition;" and that release from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently." Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. "Temporary detention" may be a necessary step in the process of extradition, but the length of time of the detention should be reasonable. Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been detained for over two (2) years without having been convicted of any crime. By any standard, such an extended period of detention is a serious deprivation of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which prompted the extradition court to grant him bail. While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the latter, the standard of due process is premised on the presumption of innocence of the accused. As Purganan correctly points out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice.15 Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail. The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to comply with these
obligations is a setback in our foreign relations and defeats the purpose of extradition. However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditees rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met. An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court. In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of "clear and convincing evidence." WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch.
Time Inc. v. James Hill Judgment which awarded the Hill family damages was reversed and case was remanded. A publication that presents misrepresentations about the subject of its coverage is NOT protected under the First Amendments guarantees of free speech, not can it be held liable The question in this case is whether appellant, publisher of Life Magazine, was denied constitutional protections of speech and press by the application by the New York courts of 50-51 of the New York Civil Rights Law[1] to award appellee damages on allegations 377*377 that Life falsely reported that a new play portrayed an experience suffered by appellee and his family. The article appeared in Life in February 1955. It was entitled "True Crime Inspires Tense Play," with the subtitle, "The ordeal of a family trapped by convicts gives Broadway a new thriller, `The Desperate Hours.' " The text of the article reads as follows: "Three years ago Americans all over the country read about the desperate ordeal of the James Hill family, who were held prisoners in their home outside Philadelphia by three escaped convicts. Later they read about it in Joseph Hayes's novel, The Desperate Hours, inspired by the family's experience. Now they can see the story re-enacted in Hayes's Broadway play based on the book, and next year will see it in his movie, which has been filmed but is being held up until the play has a chance to pay off. "The play, directed by Robert Montgomery and expertly acted, is a heart-stopping account of how a family rose to heroism in a crisis. LIFE photographed the play during its Philadelphia tryout, transported some of the actors to the actual house where the Hills were besieged. On the next page scenes from the play are re-enacted on the site of the crime." The pictures on the ensuing two pages included an enactment of the son being "roughed up" by one of the convicts, entitled "brutish convict," a picture of the 378*378 daughter biting the hand of a convict to make him drop a gun,
entitled "daring daughter," and one of the father throwing his gun through the door after a "brave try" to save his family is foiled. The James Hill referred to in the article is the appellee. He and his wife and five children involuntarily became the subjects of a front-page news story after being held hostage by three escaped convicts in their suburban, Whitemarsh, Pennsylvania, home for 19 hours on September 11-12, 1952. The family was released unharmed. In an interview with newsmen after the convicts departed, appellee stressed that the convicts had treated the family courteously, had not molested them, and had not been at all violent. The convicts were thereafter apprehended in a widely publicized encounter with the police which resulted in the killing of two of the convicts. Shortly thereafter the family moved to Connecticut. The appellee discouraged all efforts to keep them in the public spotlight through magazine articles or appearances on television. In the spring of 1953, Joseph Hayes' novel, The Desperate Hours, was published. The story depicted the experience of a family of four held hostage by three escaped convicts in the family's suburban home. But, unlike Hill's experience, the family of the story suffer violence at the hands of the convicts; the father and son are beaten and the daughter subjected to a verbal sexual insult. The book was made into a play, also entitled The Desperate Hours, and it is Life's article about the play which is the subject of appellee's action. The complaint sought damages under 50-51 on allegations that the Life article was intended to, and did, give the impression that the play mirrored the Hill family's experience, which, to the knowledge of defendant ". . . was false and untrue." Appellant's defense was that the article was "a subject of legitimate news interest," "a subject of general interest and of value and concern to the public" at the time of publication, and that it was "published in good faith without any malice whatsoever. . . ." A motion to dismiss the complaint for substantially these reasons was made at the close of the case and was denied by the trial judge on the ground that the proofs presented a jury question as to the truth of the article. The jury awarded appellee $50,000 compensatory and $25,000 punitive damages. On appeal the Appellate Division of the Supreme Court ordered a new trial as to damages but sustained the jury verdict of liability. The court said as to liability: "Although the play was fictionalized, Life's article portrayed it as a re-enactment of the Hills' experience. It is an inescapable conclusion that this was done to advertise and attract further attention to the play, and to increase present and future magazine circulation as well. It is evident that the article cannot be characterized as a mere dissemination of news, nor even an effort to supply legitimate newsworthy information in which the public had, or might have a proper interest." At the new trial on damages, a jury was waived and the court awarded $30,000 compensatory damages without punitive damages. The New York Court of Appeals affirmed the Appellate Division "on the majority and concurring opinions at the Appellate Division," two judges dissenting. We noted probable jurisdiction of the appeal to consider the important constitutional questions of freedom of speech and press involved. After argument last Term, the case was restored to the docket for reargument, We reverse and remand the case to the Court of Appeals for further proceedings not inconsistent with this opinion. I. Since the reargument, we have had the advantage of an opinion of the Court of Appeals of New York which has materially aided us in our understanding of that court's construction of the statute. It is the opinion of Judge Keating for the court in Spahn v. Julian Messner, Inc. The statute was enacted in 1903 following the decision of the Court of Appeals in 1902 in Roberson v. Rochester Folding Box Co.,. Roberson was an action against defendants for adorning their flour bags with plaintiff's picture without her consent. It was grounded upon an alleged invasion of a "right of privacy," defined by the Court of Appeals to be "the claim that a man has the right to pass through this world, if he wills, without having his picture published. . . or his eccentricities commented upon either in handbills,
circulars, catalogues, periodicals or newspapers. . . ." The Court of Appeals traced the theory to the celebrated article of Warren and Brandeis, entitled The Right to Privacy, published in 1890. The Court of Appeals, however, denied the existence of such a right at common law but observed that "[t]he legislative body could very well interfere and arbitrarily provide that no one should be permitted for his own selfish purpose to use the picture or the name of another for advertising purposes without his consent.". The legislature enacted 50-51 in response to that observation. Although "Right of Privacy" is the caption of 50-51, the term nowhere appears in the text of the statute itself. The text of the statute appears to proscribe only conduct of the kind involved in Roberson, that is, the appropriation and use in advertising or to promote the sale of goods, of another's name, portrait or picture without his consent.[4] An application of that limited scope would present different questions of violation of the constitutional protections for speech and press. The New York courts have, however, construed the statute to operate much more broadly. In Spahn the Court of Appeals stated that "Over the years since the statute's enactment in 1903, its social desirability and remedial nature have led to its being given a liberal construction consonant with its over-all purpose . . . .". Specifically, it has been held in some circumstances to authorize a remedy against the press and other communications media which publish the names, pictures, or portraits of people without their consent. Reflecting the fact, however, that such applications may raise serious questions of conflict with the constitutional protections for speech and press, decisions under the statute have tended to limit the statute's application. "Ever mindful that the written word or picture is involved, courts have engrafted exceptions and restrictions onto the statute to avoid any conflict with the free dissemination of thoughts, ideas, newsworthy events, and matters of public interest." In the light of questions that counsel were asked to argue on reargument, It is particularly relevant that the Court of Appeals made crystal clear in the Spahn opinion that truth is a complete defense in actions under the statute based upon reports of newsworthy people or events. The opinion states: "The factual reporting of newsworthy persons and events is in the public interest and is protected." Constitutional questions which might arise if truth were not a defense are therefore of no concern. Cf. Garrison v. Louisiana, 379 U. S. 64, 72-75. But although the New York statute affords "little protection" to the "privacy" of a newsworthy person, "whether he be such by choice or involuntarily" the statute gives him a right of action when his name, picture, or portrait is the subject of a "fictitious" report or article points up the distinction. Spahn was an action under the statute brought by the well-known professional baseball pitcher, Warren Spahn. He sought an injunction and damages against the unauthorized publication of what purported to be a biography of his life. The trial judge had found that "the record unequivocally establishes 386*386 that the book publicizes areas of Warren Spahn's personal and private life, albeit inaccurate and distorted, and consists of a host, a preponderant percentage, of factual errors, distortions and fanciful passages . . . The Court of Appeals sustained the holding that in these circumstances the publication was proscribed by 51 of the Civil Rights Law and was not within the exceptions and restrictions for newsworthy events engrafted onto the statute. The Court of Appeals said: "But it is erroneous to confuse privacy with `personality' or to assume that privacy, though lost for a certain time or in a certain context, goes forever unprotected . . . . Thus it may be appropriate to say that the plaintiff here, Warren Spahn, is a public personality and that, insofar as his professional career is involved, he is substantially without a right to privacy. That is not to say, however, that his `personality' may be fictionalized and that, as fictionalized, it may be exploited for the defendants' commercial benefit through the medium of an unauthorized biography." As the instant case went to the jury, appellee, too, was regarded to be a newsworthy person "substantially without a right to privacy" insofar as his hostage experience was involved, but to be entitled to his action insofar as that experience was "fictionalized" and "exploited for the defendants' commercial benefit." "Fictionalization," the Spahn opinion states, "is the heart of the cases in point."
The opinion goes on to say that the "establishment of minor errors in an otherwise accurate" report does not prove "fictionalization." Material and substantial falsification is the test. However, it is not clear whether 387*387 proof of knowledge of the falsity or that the article was prepared with reckless disregard for the truth is also required. In New York Times Co. v. Sullivan, 376 U. S. 254, we held that the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct. Factual error, content defamatory of official reputation, or both, are insufficient for an award of damages for false statements unless actual maliceknowledge that the statements are false or in reckless disregard of the truth is alleged and proved. The Spahn opinion reveals that the defendant in that case relied on New York Times as the basis of an argument that application of the statute to the publication of a substantially fictitious biography would run afoul of the constitutional guarantees. The Court of Appeals held that New York Times had no application. The court, after distinguishing the cases on the ground that Spahn did not deal with public officials or official conduct, then says, "The free speech which is encouraged and essential to the operation of a healthy government is something quite different from an individual's attempt to enjoin the publication of a fictitious biography of him. No public interest is served by protecting the dissemination of the latter. We perceive no constitutional infirmities in this respect." 18 N. Y. 2d, at 329, 221 N. E. 2d, at 546. If this is meant to imply that proof of knowing or reckless falsity is not essential to a constitutional application of the statute in these cases, we disagree with the Court of Appeals.[10] We hold that the constitutional protections for speech and press preclude the application 388*388 of the New York statute to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth. The guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government. One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press. "Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. Alabama, 310 U. S. 88, 102. "No suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression." Bridges v. California, 314 U. S. 252, 269. We have no doubt that the subject of the Life article, the opening of a new play linked to an actual incident, is a matter of public interest. "The line between the informing and the entertaining is too elusive for the protection of . . . [freedom of the press]." Winters v. New York, 333 U. S. 507, 510. Erroneous statement is no less inevitable in such a case than in the case of comment upon public affairs, and in both, if innocent or merely negligent, ". . . it must be protected if the freedoms of expression are to have the `breathing space' that they `need . . . to survive'. . . ." New York Times Co. v. Sullivan, supra, at 271-272. As James Madison said, "Some degree of abuse is inseparable from 389*389 the proper use of every thing; and in no instance is this more true than in that of the press." 4 Elliot's Debates on the Federal Constitution 571 (1876 ed.). We create a grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impossible burden of verifying to a certainty the facts associated in news articles with a person's name, picture or portrait, particularly as related to non-defamatory matter. Even negligence would be a most elusive standard, especially when the content of the speech itself affords no warning of prospective harm to another through falsity. A negligence test would place on the press the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait. In this context, sanctions against either innocent or negligent misstatement would present a grave hazard of discouraging the press from exercising the constitutional guarantees. Those guarantees are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the maintenance of our political system and an open society. Fear of large verdicts in damage suits for innocent or merely negligent
misstatement, even fear of the expense involved in their defense, must inevitably cause publishers to "steer . . . wider of the unlawful zone," New York Times Co. v. Sullivan, 376 U. S., at 279; see also Speiser v. Randall, 357 U. S. 513, 526; Smith v. California, 361 U. S. 147, 153-154; and thus "create the danger that the legitimate utterance will be penalized." Speiser v. Randall, supra, at 526. But the constitutional guarantees can tolerate sanctions against calculated falsehood without significant impairment of their essential function. We held in New York Times that calculated falsehood enjoyed no immunity 390*390 in the case of alleged defamation of a public official concerning his official conduct. Similarly, calculated falsehood should enjoy no immunity in the situation here presented us. What we said in Garrison v. Louisiana, supra, at 75, is equally applicable: "The use of calculated falsehood . . . would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published . . . should enjoy a like immunity. . . . For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which 'are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .' Chaplinsky v. New Hampshire, 315 U. S. 568, 572. Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection." We find applicable here the standard of knowing or reckless falsehood, not through blind application of New York Times Co. v. Sullivan, relating solely to libel actions by public officials, but only upon consideration of the factors which arise in the particular context of the application of the New York statute in cases involving private individuals. This is neither a libel action by a private individual nor a statutory action by a public official. Therefore, although the First Amendment principles pronounced in New York Times guide our conclusion, 391*391 we reach that conclusion only by applying these principles in this discrete context. It therefore serves no purpose to distinguish the facts here from those in New York Times. Were this a libel action, the distinction which has been suggested between the relative opportunities of the public official and the private individual to rebut defamatory charges might be germane. And the additional state interest in the protection of the individual against damage to his reputation would be involved. Cf. Rosenblatt v. Baer, 383 U. S. 75, 91 (STEWART, J., concurring). Moreover, a different test might be required in a statutory action by a public official, as opposed to a libel action by a public official or a statutory action by a private individual. Different considerations might arise concerning the degree of "waiver" of the protection the State might afford. But the question whether the same standard should be applicable both to persons voluntarily and involuntarily thrust into the public limelight is not here before us. II. Turning to the facts of the present case, the proofs reasonably would support either a jury finding of innocent or merely negligent misstatement by Life, or a finding that Life portrayed the play as a re-enactment of the Hill family's experience reckless of the truth or with actual knowledge that the portrayal was false. The relevant testimony is as follows: Joseph Hayes, author of the book, also wrote the play. The story theme was inspired by the desire to write about "true crime" and for years before writing the book, he collected newspaper clippings of stories of hostage incidents. His story was not shaped by any single incident, but by several, including incidents which occurred in California, New York, and Detroit. He said that he did not consciously portray any member of the Hill family, or the Hill family's experience, although admitting that "in a very direct way" the Hill experience "triggered" the writing of the book and the play. The Life article was prepared at the direction and under the supervision of its entertainment editor, Prideaux. He learned of the production of the play from a news story. The play's director, Robert Montgomery, later suggested to him that its interesting stage setting would make the play a worthwhile subject for an article in Life. At about the
same time, Prideaux ran into a friend of author Hayes, a free-lance photographer, who told Prideaux in casual conversation that the play had a "substantial connection with a true-life incident of a family being held by escaped convicts near Philadelphia." As the play was trying out in Philadelphia, Prideaux decided to contact the author. Hayes confirmed that an incident somewhat similar to the play had occurred in Philadelphia, and agreed with Prideaux to find out whether the former Hill residence would be available for the shooting of pictures for a Life article. Prideaux then met with Hayes in Philadelphia where he saw the play and drove with Hayes to the former Hill residence to test its suitability for a picture story. Neither then nor thereafter did Prideaux question Hayes about the extent to which the play was based on the Hill incident. "A specific question of that nature was never asked, but a discussion of the play itself, what the play was about, in the light of my own knowledge of what the true incident was about, confirmed in my mind beyond any doubt that there was a relationship, and Mr. Hayes' presence at this whole negotiation was tacit proof of that." Prideaux sent photographers to the Hill residence for location photographs of scenes of the play enacted in the home, and proceeded to construct the text of the article. 393*393 In his "story file" were several news clippings about the Hill incident which revealed its nonviolent character, and a New York Times article by Hayes in which he stated that the play "was based on various news stories," mentioning incidents in New York, California, Detroit and Philadelphia. Prideaux's first draft made no mention of the Hill name except for the caption of one of the photographs. The text related that a true story of a suburban Philadelphia family had "sparked off" Hayes to write the novel, that the play was a "somewhat fictionalized" account of the family's heroism in time of crisis. Prideaux's research assistant, whose task it was to check the draft for accuracy, put a question mark over the words "somewhat fictionalized." Prideaux testified that the question mark "must have been" brought to his attention, although he did not recollect having seen it. The draft was also brought before the copy editor, who, in the presence of Prideaux, made several changes in emphasis and substance. The first sentence was changed to focus on the Hill incident, using the family's name; the novel was said to have been "inspired" by that incident, and the play was referred to as a "re-enactment." The words "somewhat fictionalized" were deleted. Prideaux labeled as "emphatically untrue" defense counsel's suggestion during redirect examination that from the beginning he knew that the play had no relationship to the Hill incident apart from being a hostage incident. Prideaux admitted that he knew the play was "between a little bit and moderately fictionalized," but stated that he thought beyond doubt that the important quality, the "heart and soul" of the play, was the Hill incident. The jury might reasonably conclude from this evidence particularly that the New York Times article was in the story file, that the copy editor deleted "somewhat fictionalized" after the research assistant questioned its accuracy, and that Prideaux admitted that he knew the play was "between a little bit and moderately fictionalized" that Life knew the falsity of, or was reckless of the truth in, stating in the article that "the story re-enacted" the Hill family's experience. On the other hand, the jury might reasonably predicate a finding of innocent or only negligent misstatement on the testimony that a statement was made to Prideaux by the free-lance photographer that linked the play to an incident in Philadelphia, that the author Hayes cooperated in arranging for the availability of the former Hill home, and that Prideaux thought beyond doubt that the "heart and soul" of the play was the Hill incident.[11] III. We do not think, however, that the instructions confined the jury to a verdict of liability based on a finding that the statements in the article were made with knowledge of their falsity or in reckless disregard of the truth. The jury was instructed that liability could not be found under 50-51 "merely because of some incidental mistake of fact, or some incidental incorrect statement," and that a verdict of liability could rest only on findings that (1) Life published the article, "not to disseminate news, but was using plaintiffs' names, in connection with a fictionalized episode as to plaintiffs' relationship to The Desperate Hours"; the Court variously restated this "fictionalization" requirement in terms such as whether appellant "altered or changed the true facts concerning 395*395 plaintiffs' relationship to The Desperate Hours, so that the article, as published, constituted substantially fiction or a
fictionalized version . . . ," whether the article constituted "fiction," or was "fictionalized"; and that (2) the article was published to advertise the play or "for trade purposes." This latter purpose was variously defined as one "to amuse, thrill, astonish or move the reading public so as to increase the circulation of the magazine or for some other material benefit," "to increase circulation or enhance the standing of the magazine with its readers," and "for the publisher's profits through increased circulation, induced by exploitation of the plaintiffs." The court also instructed the jury that an award of punitive damages was justified if the jury found that the appellant falsely connected appellee to the play "knowingly or through failure to make a reasonable investigation," adding "You do not need to find that there was any actual ill will or personal malice toward the plaintiffs if you find a reckless or wanton disregard of the plaintiffs' rights." Appellee argues that the instructions to determine whether Life "altered or changed" the true facts, and whether, apart from incidental errors, the article was a "substantial fiction" or a "fictionalized version" were tantamount to instructions that the jury must find that Life knowingly falsified the facts. We do not think that the instructions bear that interpretation, particularly in light of the marked contrast in the instructions on compensatory and punitive damages. The element of "knowingly" is mentioned only in the instruction that punitive damages must be supported by a finding that Life falsely connected the Hill family with the play "knowingly or through failure to make a reasonable investigation." Moreover, even as to punitive damages, the instruction that such damages were justified on the 396*396 basis of "failure to make a reasonable investigation" is an instruction that proof of negligent misstatement is enough, and we have rejected the test of negligent misstatement as inadequate.[12] Next, the trial judge plainly did not regard his instructions as limiting the jury to a verdict of liability based on a finding of knowing or reckless falsity; he denied appellant's motion to dismiss after the close of the evidence because he perceived that it was for the jury to find "whether the Life article was true or whether an inference could be obtained from reading it that it was not true." This implies a view that "fictionalization" was synonymous with "falsity" without regard to knowledge or even negligence, except for the purpose of an award of punitive damages. Finally, nothing in the New York cases decided at the time of trial limited liability to cases of knowing or reckless falsity and Spahn, decided since, has left the question in doubt.[13] The requirement that the jury also find that the article was published "for trade purposes," as defined in 397*397 the charge, cannot save the charge from constitutional infirmity. "That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment." Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 501-502; see New York Times Co. v. Sullivan, 376 U. S., at 266; Smith v. California, 361 U. S. 147, 150; cf. Ex parte Jackson, 96 U. S. 727, 733; Grosjean v. American Press Co., 297 U. S. 233; Lovell v. Griffin, 303 U. S. 444. IV. The appellant argues that the statute should be declared unconstitutional on its face if construed by the New York courts to impose liability without proof of knowing or reckless falsity.[14] Such a declaration would not be warranted even if it were entirely clear that this had previously been the view of the New York courts. The New York Court of Appeals, as the Spahn opinion demonstrates, has been assiduous in construing the statute to avoid invasion of the constitutional protections of speech and press. We, therefore, confidently expect that the New York courts will apply the statute consistently with the constitutional command. Any possible difference with us as to the thrust of the constitutional command is narrowly limited in this case to the failure of the trial judge to instruct the jury that a verdict of liability could be predicated only on a finding of knowing or reckless falsity in the publication of the Life article. The judgment of the Court of Appeals is set aside and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
Hudgens vs. National Labor Relations Board - private shopping mall CAN prohibit picketing of its tenants by members of the public. Constitutional right of Freedom of Speech is defeated. A group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center were threatened by an agent of the owner with arrest for criminal trespass if they did not depart.... I. The petitioner, Scott Hudgens, is the owner of the North DeKalb Shopping Center, located in suburban Atlanta, Ga. The center consists of a single large building with an enclosed mall. Surrounding the building is a parking area which can accommodate 2,640 automobiles. The shopping center houses 60 retail stores leased to various businesses. One of the lessees is the Butler Shoe Co. Most of the stores, including Butler's, can be entered only from the interior mall. In January 1971, warehouse employees of the Butler Shoe Co. went on strike to protest the company's failure to agree to demands made by their union in contract negotiations. The strikers decided to picket not only Butler's warehouse but its nine retail stores in the Atlanta area as well, including the store in the North DeKalb Shopping Center. On January 22, 1971, four of the striking warehouse employees entered the center's enclosed mall carrying placards which read: "Butler Shoe Warehouse on Strike, AFL-CIO, Local 315." The general manager of the shopping center informed the employees that they could not picket within the mall or on the parking lot and threatened them with arrest if they did not leave. The employees departed but returned a short time later and began picketing in an area of the mall immediately adjacent to the entrances of the Butler store. After the picketing had continued for approximately 30 minutes, the shopping center manager again informed the pickets that if they did not leave they would be arrested for trespassing. The pickets departed. The union subsequently filed with the Board an unfair labor practice charge against Hudgens, alleging interference with rights protected by 7 of the Act, 29 U.S.C. 157. Relying on this Court's decision in Food Employees v. Logan Valley Plaza (OVERRULED), the Board entered a cease-and-desist order against Hudgens, reasoning that because the warehouse employees enjoyed a First Amendment right to picket on the shopping center property, the owner's threat of arrest violated 8(a)(1) of the Act.... II. In the present posture of the case the most basic question is whether the respective rights and liabilities of the parties are to be decided under the criteria of the National Labor Relations Act alone, under a First Amendment standard, or under some combination of the two. It is to that question, accordingly, that we now turn. It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself. This elementary proposition is little more than a truism. But even truisms are not always unexceptionably true, and an exception to this one was recognized almost 30 years ago in Marsh v. Alabama. In Marsh, a Jehovah's Witness who had distributed literature without a license on a sidewalk in Chickasaw, Ala., was convicted of criminal trespass. Chickasaw was a so-called company town, wholly owned by the Gulf Shipbuilding Corp....Concluding that Gulf's "property interests" should not be allowed to lead to a different result in Chickasaw, which did "not function differently from any other town," the Court invoked the First and Fourteenth Amendments to reverse the appellant's conviction. It was the Marsh case that in 1968 provided the foundation for the Court's decision in Amalgamated Food Employees Union v. Logan Valley Plaza. That case involved peaceful picketing within a large shopping center near
Altoona, Pa. One of the tenants of the shopping center was a retail store that employed a wholly nonunion staff. Members of a local union picketed the store, carrying signs proclaiming that it was nonunion and that its employees were not receiving union wages or other union benefits. The picketing took place on the shopping center's property in the immediate victinity of the store. A Pennsylvania court issued an injunction that required all picketing to be confined to public areas outside the shopping center, and the Supreme Court of Pennsylvania affirmed the issuance of this injunction. This Court held that the doctrine of the Marsh case required reversal of that judgment....The Court's opinion reviewed the Marsh case in detail, emphasized the similarities between the business block in Chickasaw, Ala., and the Logan Valley shopping center, and unambiguously concluded: "The shopping center here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh." Upon the basis of that conclusion, the Court held that the First and Fourteenth Amendments required reversal of the judgment of the Pennsylvania Supreme Court.... Four years later the Court had occasion to reconsider the Logan Valley doctrine in Lloyd Corp. v. Tanner. That case involved a shopping center covering some 50 acres in downtown Portland, Ore. On a November day in 1968 five young people entered the mall of the shopping center and distributed handbills protesting the then ongoing American military operations in Vietnam. Security guards told them to leave, and they did so, "to avoid arrest." They subsequently brought suit in a Federal District Court, seeking declaratory and injunctive relief. The trial court ruled in their favor, holding that the distribution of handbills on the shopping center's property was protected by the First and Fourteenth Amendments. The Court of Appeals for the Ninth Circuit affirmed the judgment, expressly relying on this Court's Marsh and Logan Valley decisions. This Court reversed the judgment of the Court of Appeals. The Court in its Lloyd opinion did not say that it was overruling the Logan Valley decision. Indeed, a substantial portion of the Court's opinion in Lloyd was devoted to pointing out the differences between the two cases, noting particularly that, in contrast to the handbilling in Lloyd, the picketing in Logan Valley had been specifically directed to a store in the shopping center and the pickets had had no other reasonable opportunity to reach their intended audience. But the fact is that the reasoning of the Court's opinion in Lloyd cannot be squared with the reasoning of the Court's opinion in Logan Valley. It matters not that some Members of the Court may continue to believe that the Logan Valley case was rightly decided. Our institutional duty is to follow until changed the law as it now is, not as some Members of the Court might wish it to be. And in the performance of that duty we make clear now, if it was not clear before, that the rationale of Logan Valley did not survive the Court's decision in the Lloyd case. Not only did the Lloyd opinion incorporate lengthy excerpts from two of the dissenting opinions in Logan Valley; the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Valley: "The basic issue in this case is whether respondents, in the exercise of asserted First Amendment rights, may distribute handbills on Lloyd's private property contrary to its wishes and contrary to a policy enforced against all handbilling. In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only....Respondents contend... that the property of a large shopping center is 'open to the public,' serves the same purposes as a 'business district' of a municipality, and therefore has been dedicated to certain types of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that all members of the public, whether invited as customers or not, have the same right of free speech as they would have on the similar public facilities in the streets of a city or town. The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use....We hold that there has been no such dedication of Lloyd's privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights...."
If a large self-contained shopping center is the functional equivalent of a municipality, as Logan Valley held, then the First and Fourteenth Amendments would not permit control of speech within such a center to depend upon the speech's content. For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes, and may even forbid altogether such use of some of its facilities, what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression. It conversely follows, therefore, that if the respondents in the Lloyd case did not have a First Amendment right to enter this shopping center to distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment right to enter this shopping center for the purpose of advertising their strike against the Butler Shoe Co. We conclude, in short, that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this....
Chaper 4 cases 1. JMM PROMOTIONS AND MANAGEMENT INC V. CA - Valid exercise of police power The limits of government regulation under the State's Police Power are once again at the vortex of the instant controversy. Assailed is the government's power to control deployment of female entertainers to Japan by requiring an Artist Record Book (ARB) as a precondition to the processing by the POEA of any contract for overseas employment. By contending that the right to overseas employment, is a property right within the meaning of the Constitution, petitioners vigorously aver that deprivation thereof allegedly through the onerous requirement of an ARB violates the due process clause and constitutes an invalid exercise of the police power. o The factual antecedents are undisputed. Following the much-publicized death of Maricris Sioson in 1991, former President Corazon C. Aquino ordered a total ban against the deployment of performing artists to Japan and other foreign destinations. The ban was, however, rescinded after leaders of the overseas employment industry promised to extend full support for a program aimed at removing kinks in the system of deployment. In its place, the government, through the Secretary of Labor and Employment, subsequently issued Department Order No. 28, creating the Entertainment Industry Advisory Council (EIAC), which was tasked with issuing guidelines on the training, testing certification and deployment of performing artists abroad. Pursuant to the EIAC's recommendations,[1] the Secretary of Labor, on January 6, 1994, issued Department Order No. 3 establishing various procedures and requirements for screening performing artists under a new system of training, testing, certification and deployment of the former. Performing artists successfully hurdling the test, training and certification requirement were to be issued an Artist's Record Book (ARB), a necessary prerequisite to processing of any contract of employment by the POEA. Upon request of the industry, implementation of the process, originally scheduled for April 1, 1994, was moved to October 1, 1994. Thereafter, the Department of Labor, following the EIAC's recommendation, issued a series of orders fine-tuning and implementing the new system. Prominent among these orders were the following issuances: 1. Department Order No. 3-A, providing for additional guidelines on the training, testing, certification and deployment of performing artists. 2. Department Order No. 3-B, pertaining to the Artist Record Book (ARB) requirement, which could be processed only after the artist could show proof of academic and skills training and has passed the required tests. 3. Department Order No. 3-E, providing the minimum salary a performing artist ought to receive (not less than US$600.00 for those bound for Japan) and the authorized deductions therefrom. 4. Department Order No. 3-F, providing for the guidelines on the issuance and use of the ARB by returning performing artists who, unlike new artists, shall only undergo a Special Orientation Program (shorter than the basic program) although they must pass the academic test. In Civil Case No. 95-72750, the Federation of Entertainment Talent Managers of the Philippines (FETMOP), on January 27, 1995 filed a class suit assailing these department orders, principally contending that said orders 1) violated the constitutional right to travel; 2) abridged existing contracts for employment; and 3) deprived individual artists of their licenses without due process of law. FETMOP, likewise, averred that the issuance of the Artist Record Book (ARB) was discriminatory and illegal and "in gross violation of the constitutional right... to life liberty
and property." Said Federation consequently prayed for the issuance of a writ of preliminary injunction against the aforestated orders. On February 2, 1992, JMM Promotion and Management, Inc. and Kary International, Inc., herein petitioners, filed a Motion for Intervention in said civil case, which was granted by the trial court in an Order dated 15 February, 1995. However, on February 21, 1995, the trial court issued an Order denying petitioners' prayer for a writ of preliminary injunction and dismissed the complaint. On appeal from the trial court's Order, respondent court, in CA G.R. SP No. 36713 dismissed the same. Tracing the circumstances which led to the issuance of the ARB requirement and the assailed Department Order, respondent court concluded that the issuances constituted a valid exercise by the state of the police power. We agree. The latin maxim salus populi est suprema lex embodies the character of the entire spectrum of public laws aimed at promoting the general welfare of the people under the State's police power. As an inherent attribute of sovereignty which virtually "extends to all public needs," this "least limitable" of governmental powers grants a wide panoply of instruments through which the state, as parens patriae gives effect to a host of its regulatory powers. Describing the nature and scope of the police power, Justice Malcolm, in the early case of Rubi v. Provincial Board of Mindoro[4] wrote: "The police power of the State," one court has said...'is a power coextensive with self-protection, and is not inaptly termed 'the law of overruling necessity.' It may be said to be that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort, safety and welfare of society.' Carried onward by the current of legislature, the judiciary rarely attempts to dam the onrushing power of legislative discretion, provided the purposes of the law do not go beyond the great principles that mean security for the public welfare or do not arbitrarily interfere with the right of the individual." Thus, police power concerns government enactments which precisely interfere with personal liberty or property in order to promote the general welfare or the common good. As the assailed Department Order enjoys a presumed validity, it follows that the burden rests upon petitioners to demonstrate that the said order, particularly, its ARB requirement, does not enhance the public welfare or was exercised arbitrarily or unreasonably. A thorough review of the facts and circumstances leading to the issuance of the assailed orders compels us to rule that the Artist Record Book requirement and the questioned Department Order related to its issuance were issued by the Secretary of Labor pursuant to a valid exercise of the police power. In 1984, the Philippines emerged as the largest labor sending country in Asia dwarfing the labor export of countries with mammoth populations such as India and China. According to the National Statistics Office, this diaspora was augmented annually by over 450,000 documented and clandestine or illegal (undocumented) workers who left the country for various destinations abroad, lured by higher salaries, better work opportunities and sometimes better living conditions. Of the hundreds of thousands of workers who left the country for greener pastures in the last few years, women composed slightly close to half of those deployed, constituting 47% between 1987-1991, exceeding this proportion (58%) by the end of 1991,[6] the year former President Aquino instituted the ban on deployment of performing artists to Japan and other countries as a result of the gruesome death of Filipino entertainer Maricris Sioson.
It was during the same period that this Court took judicial notice not only of the trend, but also of the fact that most of our women, a large number employed as domestic helpers and entertainers, worked under exploitative conditions "marked by physical and personal abuse."[7] Even then, we noted that "[t]he sordid tales of maltreatment suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by testimonies of returning workers" compelled "urgent government action."[8] Pursuant to the alarming number of reports that a significant number of Filipina performing artists ended up as prostitutes abroad (many of whom were beaten, drugged and forced into prostitution), and following the deaths of a number of these women, the government began instituting measures aimed at deploying only those individuals who met set standards which would qualify them as legitimate performing artists. In spite of these measures, however, a number of our countrymen have nonetheless fallen victim to unscrupulous recruiters, ending up as virtual slaves controlled by foreign crime syndicates and forced into jobs other than those indicated in their employment contracts. Worse, some of our women have been forced into prostitution.
Thus, after a number of inadequate and failed accreditation schemes, the Secretary of Labor issued on August 16, 1993, D.O. No. 28, establishing the Entertainment Industry Advisory Council (EIAC), the policy advisory body of DOLE on entertainment industry matters. Acting on the recommendations of the said body, the Secretary of Labor, on January 6, 1994, issued the assailed orders. These orders embodied EIAC's Resolution No. 1, which called for guidelines on screening, testing and accrediting performing overseas Filipino artists. Significantly, as the respondent court noted, petitioners were duly represented in the EIAC,[10] which gave the recommendations on which the ARB and other requirements were based. Clearly, the welfare of Filipino performing artists, particularly the women was paramount in the issuance of Department Order No. 3. Short of a total and absolute ban against the deployment of performing artists to "high risk" destinations, a measure which would only drive recruitment further underground, the new scheme at the very least rationalizes the method of screening performing artists by requiring reasonable educational and artistic skills from them and limits deployment to only those individuals adequately prepared for the unpredictable demands of employment as artists abroad. It cannot be gainsaid that this scheme at least lessens the room for exploitation by unscrupulous individuals and agencies. Moreover, here or abroad, selection of performing artists is usually accomplished by auditions, where those deemed unfit are usually weeded out through a process which is inherently subjective and vulnerable to bias and differences in taste. The ARB requirement goes one step further, however, attempting to minimize the subjectivity of the process by defining the minimum skills required from entertainers and performing artists. As the Solicitor General observed, this should be easily met by experienced artists possessing merely basic skills. The tests are aimed at segregating real artists or performers from those passing themselves off as such, eager to accept any available job and therefore exposing themselves to possible exploitation. As to the other provisions of Department Order No. 3 questioned by petitioners, we see nothing wrong with the requirement for document and booking confirmation (D.O. 3-C), a minimum salary scale (D.O. 3-E), or the requirement for registration of returning performers. The requirement for a venue certificate or other documents evidencing the place and nature of work allows the government closer monitoring of foreign employers and helps keep our entertainers away from prostitution fronts and other worksites associated with unsavory, immoral, illegal or exploitative practices. Parenthetically, none of these issuances appear to us, by any stretch of the imagination, even remotely unreasonable or arbitrary. They address a felt need of according greater protection for an oft-exploited segment of our OCW's. They respond to the industry's demand for clearer and more practicable rules and guidelines. Many of these provisions were fleshed out following recommendations by, and after consultations with, the affected sectors and non-government organizations. On the whole, they are aimed at enhancing the safety and
security of entertainers and artists bound for Japan and other destinations, without stifling the industry's concerns for expansion and growth. In any event, apart from the State's police power, the Constitution itself mandates government to extend the fullest protection to our overseas workers. The basic constitutional statement on labor, embodied in Section 18 of Article II of the Constitution provides: Sec. 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. More emphatically, the social justice provision on labor of the 1987 Constitution in its first paragraph states: The State shall afford full protection to labor, local and overseas, organized and unorganized and promote full employment and equality of employment opportunities for all. Obviously, protection to labor does not indicate promotion of employment alone. Under the welfare and social justice provisions of the Constitution, the promotion of full employment, while desirable, cannot take a backseat to the government's constitutional duty to provide mechanisms for the protection of our workforce, local or overseas. As this Court explained in Philippine Association of Service Exporters (PASEI) v. Drilon,[11] in reference to the recurring problems faced by our overseas workers: What concerns the Constitution more paramountly is that such an employment be above all, decent, just, and humane. It is bad enough that the country has to send its sons and daughters to strange lands because it cannot satisfy their employment needs at home. Under these circumstances, the Government is duty-bound to insure that our toiling expatriates have adequate protection, personally and economically, while away from home. We now go to petitioners' assertion that the police power cannot, nevertheless, abridge the right of our performing workers to return to work abroad after having earlier qualified under the old process, because, having previously been accredited, their accreditation became a property right," protected by the due process clause. We find this contention untenable. A profession, trade or calling is a property right within the meaning of our constitutional guarantees. One cannot be deprived of the right to work and the right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong.[12] Nevertheless, no right is absolute, and the proper regulation of a profession, calling, business or trade has always been upheld as a legitimate subject of a valid exercise of the police power by the state particularly when their conduct affects either the execution of legitimate governmental functions, the preservation of the State, the public health and welfare and public morals. According to the maxim, sic utere tuo ut alienum non laedas, it must of course be within the legitimate range of legislative action to define the mode and manner in which every one may so use his own property so as not to pose injury to himself or others.[13] In any case, where the liberty curtailed affects at most the rights of property, the permissible scope of regulatory measures is certainly much wider.[14] To pretend that licensing or accreditation requirements violates the due process clause is to ignore the settled practice, under the mantle of the police power, of regulating entry to the practice of various trades or professions. Professionals leaving for abroad are required to pass rigid written and practical exams before they are deemed fit to practice their trade. Seamen are required to take tests determining their seamanship. Locally, the Professional Regulation Commission has began to require previously licensed doctors and other professionals to furnish documentary proof that they had either re-trained or had undertaken continuing education courses as a requirement for renewal of their licenses. It is not claimed that these requirements pose an unwarranted deprivation of a property right under the due process clause. So long as Professionals and other workers meet reasonable regulatory standards no such deprivation exists.
Finally, it is a futile gesture on the part of petitioners to invoke the non-impairment clause of the Constitution to support their argument that the government cannot enact the assailed regulatory measures because they abridge the freedom to contract. In Philippine Association of Service Exporters, Inc. vs. Drilon, we held that "[t]he nonimpairment clause of the Constitution... must yield to the loftier purposes targeted by the government."[15] Equally important, into every contract is read provisions of existing law, and always, a reservation of the police power for so long as the agreement deals with a subject impressed with the public welfare. A last point. Petitioners suggest that the singling out of entertainers and performing artists under the assailed department orders constitutes class legislation which violates the equal protection clause of the Constitution. We do not agree. The equal protection clause is directed principally against undue favor and individual or class privilege. It is not intended to prohibit legislation which is limited to the object to which it is directed or by the territory in which it is to operate. It does not require absolute equality, but merely that all persons be treated alike under like conditions both as to privileges conferred and liabilities imposed.[16] We have held, time and again, that the equal protection clause of the Constitution does not forbid classification for so long as such classification is based on real and substantial differences having a reasonable relation to the subject of the particular legislation.[17] If classification is germane to the purpose of the law, concerns all members of the class, and applies equally to present and future conditions, the classification does not violate the equal protection guarantee. In the case at bar, the challenged Department Order clearly applies to all performing artists and entertainers destined for jobs abroad. These orders, we stressed hereinbefore, further the Constitutional mandate requiring Government to protect our workforce, particularly those who may be prone to abuse and exploitation as they are beyond the physical reach of government regulatory agencies. The tragic incidents must somehow stop, but short of absolutely curtailing the right of these performers and entertainers to work abroad, the assailed measures enable our government to assume a measure of control. WHEREFORE, finding no reversible error in the decision sought to be reviewed, petition is hereby DENIED. 2. BERNARDO V. NLRC - case of illegal dismissal Persons mandates that qualified disabled persons be granted the same terms and conditions of employment as qualified able-bodied employees. Once they have attained the status of regular workers, they should be accorded all the benefits granted by law, notwithstanding written or verbal contracts to the contrary. This treatment is rooted not merely on charity or accommodation, but on justice for all. The Case Challenged in the Petition for Certiorari before us is the June 20, 1995 Decision of the National Labor Relations Commission (NLRC), which affirmed the August, 22 1994 ruling of Labor Arbiter Cornelio L. Linsangan. The labor arbiters Decision disposed as follows: WHEREFORE, judgment is hereby rendered dismissing the above -mentioned complaint for lack of merit. Also assailed is the August 4, 1995 Resolution[5] of the NLRC, which denied the Motion for Reconsideration. The Facts
The facts were summarized by the NLRC in this wise: Complainants numbering 43 are deaf-mutes who were hired on various periods from 1988 to 1993 by respondent Far East Bank and Trust Co. as Money Sorters and Counters through a uniformly worded agreement called Employment Contract for Handicapped Workers. The full text of said agreement is quoted below: EMPLOYMENT CONTRACT FOR HANDICAPPED WORKERS This Contract, entered into by and between: FAR EAST BANK AND TRUST COMPANY, a universal banking corporation duly organized and existing under and by virtue of the laws of the Philippines, with business address at FEBTC Building, Muralla, Intramuros, Manila, represented herein by its Assistant Vice President, MR. FLORENDO G. MARANAN, (hereinafter referred to as the BANK); - and ________________, ________________ years old, of legal age, _____________, and residing at __________________ (hereinafter referred to as the (EMPLOYEE). WITNESSETH: That WHEREAS, the BANK, cognizant of its social responsibility, realizes that there is a need to provide disabled and handicapped persons gainful employment and opportunities to realize their potentials, uplift their socio-economic well being and welfare and make them productive, self-reliant and useful citizens to enable them to fully integrate in the mainstream of society; WHEREAS, there are certain positions in the BANK which may be filled-up by disabled and handicapped persons, particularly deaf-mutes, and the BANK has been approached by some civic-minded citizens and authorized government agencies regarding the possibility of hiring handicapped workers for these positions; WHEREAS, the EMPLOYEE is one of those handicapped workers who were recommended for possible employment with the BANK; NOW, THEREFORE, for and in consideration of the foregoing premises and in compliance with Article 80 of the Labor Code of the Philippines as amended, the BANK and the EMPLOYEE have entered into this Employment Contract as follows: 1. The BANK agrees to employ and train the EMPLOYEE, and the EMPLOYEE agrees to diligently and faithfully work with the BANK, as Money Sorter and Counter. 2. i ii. iii. iv. v. The EMPLOYEE shall perform among others, the following duties and responsibilities: Sort out bills according to color; Count each denomination per hundred, either manually or with the aid of a counting machine; Wrap and label bills per hundred; Put the wrapped bills into bundles; and Submit bundled bills to the bank teller for verification.
3. The EMPLOYEE shall undergo a training period of one (1) month, after which the BANK shall determine whether or not he/she should be allowed to finish the remaining term of this Contract.
4. The EMPLOYEE shall be entitled to an initial compensation of P118.00 per day, subject to adjustment in the sole judgment of the BANK, payable every 15th and end of the month. 5. The regular work schedule of the EMPLOYEE shall be five (5) days per week, from Mondays thru Fridays, at eight (8) hours a day. The EMPLOYEE may be required to perform overtime work as circumstance may warrant, for which overtime work he/she [shall] be paid an additional compensation of 125% of his daily rate if performed during ordinary days and 130% if performed during Saturday or [a] rest day. 6. i. ii. iii. The EMPLOYEE shall likewise be entitled to the following benefits: Proportionate 13th month pay based on his basic daily wage. Five (5) days incentive leave. SSS premium payment.
7. The EMPLOYEE binds himself/herself to abide [by] and comply with all the BANK Rules and Regulations and Policies, and to conduct himself/herself in a manner expected of all employees of the BANK. 8. The EMPLOYEE acknowledges the fact that he/she had been employed under a special employment program of the BANK, for which reason the standard hiring requirements of the BANK were not applied in his/her case. Consequently, the EMPLOYEE acknowledges and accepts the fact that the terms and conditions of the employment generally observed by the BANK with respect to the BANKs regular employee are not applicable to the EMPLOYEE, and that therefore, the terms and conditions of the EMPLOYEEs employment with the BANK shall be governed solely and exclusively by this Contract and by the applicable rules and regulations that the Department of Labor and Employment may issue in connection with the employment of disabled and handicapped workers. More specifically, the EMPLOYEE hereby acknowledges that the provisions of Book Six of the Labor Code of the Philippines as amended, particularly on regulation of employment and separation pay are not applicable to him/her. 9. The Employment Contract shall be for a period of six (6) months or from ____ to ____ unless earlier terminated by the BANK for any just or reasonable cause. Any continuation or extension of this Contract shall be in writing and therefore this Contract will automatically expire at the end of its terms unless renewed in writing by the BANK. IN WITNESS WHEREOF, the parties, have hereunto affixed their signature[s] this ____ day of _________________, ____________ at Intramuros, Manila, Philippines. In 1988, two (2) deaf-mutes were hired under this Agreement; in 1989 another two (2); in 1990, nineteen (19); in 1991 six (6); in 1992, six (6) and in 1993, twenty-one (21). Their employment[s] were renewed every six months such that by the time this case arose, there were fifty-six (56) deaf-mutes who were employed by respondent under the said employment agreement. The last one was Thelma Malindoy who was employed in 1992 and whose contract expired on July 1993. Disclaiming that complainants were regular employees, respondent Far East Bank and Trust Company maintained that complainants who are a special class of workers the hearing impaired employees were hired temporarily under a special employment arrangement which was a result of overtures made by some civic and political personalities to the respondent Bank; that complainant[s] were hired due to pakiusap which must be considered in the light of the context of the respondent Banks corporate philosophy as well as its career and working environment which is to maintain and strengthen a corps of professionals trained and qualified officers and regular employees who are baccalaureate degree holders from excellent schools which is an unbending policy in the hiring of regular employees; that in addition to this, training continues so that the regular employee grows in the corporate ladder;
that the idea of hiring handicapped workers was acceptable to them only on a special arrangement basis; that it adopted the special program to help tide over a group of handicapped workers such as deaf-mutes like the complainants who could do manual work for the respondent Bank; that the task of counting and sorting of bills which was being performed by tellers could be assigned to deaf-mutes; that the counting and sorting of money are tellering works which were always logically and naturally part and parcel of the tellers nor mal functions; that from the beginning there have been no separate items in the respondent Bank plantilla for sorters or counters; that the tellers themselves already did the sorting and counting chore as a regular feature and integral part of their duties (p. 97, Records); that through the pakiusap of Arturo Borjal, the tellers were relieved of this task of counting and sorting bills in favor of deaf-mutes without creating new positions as there is no position either in the respondent or in any other bank in the Philippines which deals with purely counting and sorting of bills in banking operations. Petitioners specified when each of them was hired and dismissed, viz:[7] NAME OF PETITIONER 1. MARITES BERNARDO 2. ELVIRA GO DIAMANTE 3. REBECCA E. DAVID 4. DAVID P. PASCUAL 5. RAQUEL ESTILLER 6. ALBERT HALLARE 7. EDMUND M. CORTEZ 8. JOSELITO O. AGDON 9. GEORGE P. LIGUTAN, JR. 10. CELSO M. YAZAR 11. ALEX G. CORPUZ 12. RONALD M. DELFIN 13. ROWENA M. TABAQUERO 14. CORAZON C. DELOS REYES 15. ROBERT G. NOORA 16. MILAGROS O. LEQUIGAN 17. ADRIANA F. TATLONGHARI 18. IKE CABANDUCOS WORKPLACE Intramuros Intramuros Intramuros Bel-Air Intramuros West Bel-Air Intramuros Intramuros Intramuros Intramuros Intramuros Intramuros Intramuros Intramuros Intramuros Intramuros Intramuros Date Hired Date D ismissed 17 NOV 93 11 JAN 94 23 OCT 93 21 NOV 94 4 JAN 94 9 JAN 94 3 DEC 93 17 NOV 93 19 JAN 94
12 NOV 90 24 JAN 90 16 APR 90 15 OCT 88 2 JUL 92 4 JAN 91 15 JAN 91 5 NOV 90
6 SEPT 89 8 FEB 93
8 AUG 93 15 AUG 93
15 FEB 93 22 FEB 93 22 FEB 93 8 FEB 93 15 FEB 93 1 FEB 93 22 JAN 93 24 FEB 93
22 AUG 93 22 AUG 93 8 AUG 93 15 AUG 93 1 AUG 93 22 JUL 93 24 AUG 93
19. COCOY NOBELLO 20. DORENDA CATIMBUHAN 21. ROBERT MARCELO 22. LILIBETH Q. MARMOLEJO 23. JOSE E. SALES 24. ISABEL MAMAUAG 25. VIOLETA G. MONTES 26. ALBINO TECSON 27. MELODY V. GRUELA 28. BERNADETH D. AGERO 29. CYNTHIA DE VERA 30. LANI R. CORTEZ 31. MA. ISABEL B. CONCEPCION 32. DINDO VALERIO 33. ZENAIDA MATA 34. ARIEL DEL PILAR 35. MARGARET CECILIA CANOZA 36. THELMA SEBASTIAN 37. MA. JEANETTE CERVANTES 38. JEANNIE RAMIL 39. ROZAIDA PASCUAL 40. PINKY BALOLOA 41. ELIZABETH VENTURA 42. GRACE S. PARDO 43. RICO TIMOSA
Intramuros Intramuros West West West West Intramuros Intramuros West West Bel-Air Bel-Air West Intramuros Intramuros Intramuros Intramuros Intramuros West Intramuros Bel-Air West West West Intramuros
22 FEB 93 15 FEB 93 31 JUL 93[8] 15 JUN 90 6 AUG 92 8 MAY 92 2 FEB 90
22 AUG 93 15 AUG 93 1 AUG 93 21 NOV 93 12 OCT 93 10 NOV 93 15 JAN 94 10 NOV 93
7 NOV 91 28 OCT 91 19 DEC 90 26 JUN 90 15 OCT 88 6 SEPT 90
3 NOV 93 27 DEC 93 3 DEC 93 10 DEC 93 6 FEB 94 30 NOV 93
30 MAY 93 10 FEB 93 24 FEB 93
10 AUG 93 24 AUG 93 4 FEB 94
27 JUL 90 12 NOV 90 6 JUN 92 23 APR 90 20 APR 89 3 JUN 91 12 MAR 90
17 NOV 93 7 DEC 93 12 OCT 93 29 OCT 93 2 DEC 93 FEB 94 [SIC] 13 MAR 94
4 APR 90 28 APR 93
28 OCT 93
As earlier noted, the labor arbiter and, on appeal, the NLRC ruled against herein petitioners. Hence, this recourse to this Court. The Ruling of the NLRC In affirming the ruling of the labor arbiter that herein petitioners could not be deemed regular employees under Article 280 of the Labor Code, as amended, Respondent Commission ratiocinated as follows: We agree that Art. 280 is not controlling herein. We give due credence to the conclusion that complainants were hired as an accommodation to [the] recommendation of civic oriented personalities whose employment[s] were covered by xxx Employment Contract[s] with special provisions on duration of contract as specified under Art. 80. Hence, as correctly held by the Labor Arbiter a quo, the terms of the contract shall be the law between the parties.[ The NLRC also declared that the Magna Carta for Disabled Persons was not applicable, considering the prevailing circumstances/milieu of the case. Issues In their Memorandum, petitioners cite the following grounds in support of their cause: I. The Honorable Commission committed grave abuse of discretion in holding that the petitioners - money sorters and counters working in a bank - were not regular employees. II. The Honorable Commission committed grave abuse of discretion in holding that the employment contracts signed and renewed by the petitioners - which provide for a period of six (6) months - were valid. III. The Honorable Commission committed grave abuse of discretion in not applying the provisions of the Magna Carta for the Disabled (Republic Act No. 7277), on proscription against discrimination against disabled persons.[11] In the main, the Court will resolve whether petitioners have become regular employees. This Courts Ruling The petition is meritorious. However, only the employees, who worked for more than six months and whose contracts were renewed are deemed regular. Hence, their dismissal from employment was illegal. Preliminary Matter: Propriety of Certiorari Respondent Far East Bank and Trust Company argues that a review of the findings of facts of the NLRC is not allowed in a petition for certiorari. Specifically, it maintains that the Court cannot pass upon the findings of public respondents that petitioners were not regular employees. True, the Court, as a rule, does not review the factual findings of public respondents in a certiorari proceeding. In resolving whether the petitioners have become regular employees, we shall not change the facts found by the public respondent. Our task is merely to determine whether the NLRC committed grave abuse of discretion in applying the law to the established facts, as above-quoted from the assailed Decision. Main Issue: Are Petitioners Regular Employees? Petitioners maintain that they should be considered regular employees, because their task as money sorters and
counters was necessary and desirable to the business of respondent bank. They further allege that their contracts served merely to preclude the application of Article 280 and to bar them from becoming regular employees. Private respondent, on the other hand, submits that petitioners were hired only as special workers and should not in any way be considered as part of the regular complement of the Bank.[12] Rather, they were special workers under Article 80 of the Labor Code. Private respondent contends that it never solicited the services of petitioners, whose employment was merely an accommodation in response to the requests of government officials and civicminded citizens. They were told from the start, with the assistance of government representatives, that they could not become regular employees because there were no plantilla positions for money sorters, whose t ask used to be performed by tellers. Their contracts were renewed several times, not because of need but merely for humanitarian reasons. Respondent submits that as of the present, the special position that was created for the petitioners no longer exist[s] in private respondent [bank], after the latter had decided not to renew anymore their special employment contracts. At the outset, let it be known that this Court appreciates the nobility of private respondents effort to provide employment to physically impaired individuals and to make them more productive members of society. However, we cannot allow it to elude the legal consequences of that effort, simply because it now deems their employment irrelevant. The facts, viewed in light of the Labor Code and the Magna Carta for Disabled Persons, indubitably show that the petitioners, except sixteen of them, should be deemed regular employees. As such, they have acquired legal rights that this Court is duty-bound to protect and uphold, not as a matter of compassion but as a consequence of law and justice. The uniform employment contracts of the petitioners stipulated that they shall be trained for a period of one month, after which the employer shall determine whether or not they should be allowed to finish the 6-month term of the contract. Furthermore, the employer may terminate the contract at any time for a just and reasonable cause. Unless renewed in writing by the employer, the contract shall automatically expire at the end of the term. According to private respondent, the employment contracts were prepared in accordance with Article 80 of the Labor Code, which provides: ART. 80. Employment agreement. Any employer who employs handicapped workers shall enter into an employment agreement with them, which agreement shall include: (a) The names and addresses of the handicapped workers to be employed; (b) The rate to be paid the handicapped workers which shall be not less than seventy five (75%) per cent of the applicable legal minimum wage; (c) The duration of employment period; and (d) The work to be performed by handicapped workers. The employment agreement shall be subject to inspection by the Secretary of Labor or his duly authorized representatives. The stipulations in the employment contracts indubitably conform with the aforecited provision. Succeeding events and the enactment of RA No. 7277 (the Magna Carta for Disabled Persons),[13] however, justify the application of Article 280 of the Labor Code. Respondent bank entered into the aforesaid contract with a total of 56 handicapped workers and renewed the
contracts of 37 of them. In fact, two of them worked from 1988 to 1993. Verily, the renewal of the contracts of the handicapped workers and the hiring of others lead to the conclusion that their tasks were beneficial and necessary to the bank. More important, these facts show that they were qualified to perform the responsibilities of their positions. In other words, their disability did not render them unqualified or unfit for the tasks assigned to them. In this light, the Magna Carta for Disabled Persons mandates that a qualified disabled employee should be given the same terms and conditions of employment as a qualified able-bodied person. Section 5 of the Magna Carta provides: Section 5. Equal Opportunity for Employment.No disabled person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied person. The fact that the employees were qualified disabled persons necessarily removes the employment contracts from the ambit of Article 80. Since the Magna Carta accords them the rights of qualified able-bodied persons, they are thus covered by Article 280 of the Labor Code, which provides: ART. 280. Regular and Casual Employment. -- The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season. An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That, any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered as regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. The test of whether an employee is regular was laid down in De Leon v. NLRC,[14] in which this Court held: The primary standard, therefore, of determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. Also if the employee has been performing the job for at least one year, even if the performance is not continuous and merely intermittent, the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is considered regular, but only with respect to such activity, and while such activity exists. Without a doubt, the task of counting and sorting bills is necessary and desirable to the business of respondent bank. With the exception of sixteen of them, petitioners performed these tasks for more than six months. Thus, the following twenty-seven petitioners should be deemed regular employees: Marites Bernardo, Elvira Go Diamante, Rebecca E. David, David P. Pascual, Raquel Estiller, Albert Hallare, Edmund M. Cortez, Joselito O. Agdon, George P. Ligutan Jr., Lilibeth Q. Marmolejo, Jose E. Sales, Isabel Mamauag, Violeta G. Montes, Albino Tecson, Melody V. Gruela, Bernadeth D. Agero, Cynthia de Vera, Lani R. Cortez, Ma. Isabel B. Concepcion, Margaret Cecilia Canoza, Thelma Sebastian, Ma. Jeanette Cervantes, Jeannie Ramil, Rozaida Pascual, Pinky Baloloa, Elizabeth Ventura and Grace S. Pardo.
As held by the Court, Articles 280 and 281 of the Labor Co de put an end to the pernicious practice of making permanent casuals of our lowly employees by the simple expedient of extending to them probationary appointments, ad infinitum.[15] The contract signed by petitioners is akin to a probationary employment, during which the bank determined the employees fitness for the job. When the bank renewed the contract after the lapse of the six -month probationary period, the employees thereby became regular employees.[16] No employer is allowed to determine indefinitely the fitness of its employees. As regular employees, the twenty-seven petitioners are entitled to security of tenure; that is, their services may be terminated only for a just or authorized cause. Because respondent failed to show such cause,[17] these twentyseven petitioners are deemed illegally dismissed and therefore entitled to back wages and reinstatement without loss of seniority rights and other privileges.[18] Considering the allegation of respondent that the job of money sorting is no longer available because it has been assigned back to the tellers to whom it originally belonged,[19] petitioners are hereby awarded separation pay in lieu of reinstatement.[20] Because the other sixteen worked only for six months, they are not deemed regular employees and hence not entitled to the same benefits. Applicability of the Brent Ruling Respondent bank, citing Brent School v. Zamora[21] in which the Court upheld the validity of an employment contract with a fixed term, argues that the parties entered into the contract on equal footing. It adds that the petitioners had in fact an advantage, because they were backed by then DSWD Secretary Mita Pardo de Tavera and Representative Arturo Borjal. We are not persuaded. The term limit in the contract was premised on the fact that the petitioners were disabled, and that the bank had to determine their fitness for the position. Indeed, its validity is based on Article 80 of the Labor Code. But as noted earlier, petitioners proved themselves to be qualified disabled persons who, under the Magna Carta for Disabled Persons, are entitled to terms and conditions of employment enjoyed by qualified able-bodied individuals; hence, Article 80 does not apply because petitioners are qualified for their positions. The validation of the limit imposed on their contracts, imposed by reason of their disability, was a glaring instance of the very mischief sought to be addressed by the new law. Moreover, it must be emphasized that a contract of employment is impressed with public interest.[22] Provisions of applicable statutes are deemed written into the contract, and the parties are not at liberty to insulate themselves and their relationships from the impact of labor laws and regulations by simply contracting with each ot her.[23] Clearly, the agreement of the parties regarding the period of employment cannot prevail over the provisions of the Magna Carta for Disabled Persons, which mandate that petitioners must be treated as qualified able-bodied employees. Respondents reason for terminating the employment of petitioners is instructive. Because the Bangko Sentral ng Pilipinas (BSP) required that cash in the bank be turned over to the BSP during business hours from 8:00 a.m. to 5:00 p.m., respondent resorted to nighttime sorting and counting of money. Thus, it reasons that this task could not be done by deaf mutes because of their physical limitations as it is very risky for them to travel at night.[24] We find no basis for this argument. Travelling at night involves risks to handicapped and able-bodied persons alike. This excuse cannot justify the termination of their employment. Other Grounds Cited by Respondent Respondent argues that petitioners were merely accommodated employees. This fact does not change th e nature of their employment. As earlier noted, an employee is regular because of the nature of work and the length of
service, not because of the mode or even the reason for hiring them. Equally unavailing are private respondents arguments that it did not go out of its way to recruit petitioners, and that its plantilla did not contain their positions. In L. T. Datu v. NLRC,[25] the Court held that the determination of whether employment is casual or regular does not depend on the will or word of the employer, and the procedure of hiring x x x but on the nature of the activities performed by the employee, and to some extent, the length of performance and its continued existence. Private respondent argues that the petitioners were informed from the start that they could not become regular employees. In fact, the bank adds, they agreed with the stipulation in the contract regarding this point. Still, we are not persuaded. The well-settled rule is that the character of employment is determined not by stipulations in the contract, but by the nature of the work performed.[26] Otherwise, no employee can become regular by the simple expedient of incorporating this condition in the contract of employment. In this light, we iterate our ruling in Romares v. NLRC:[27] Article 280 was emplaced in our statute books to prevent the circumvention of the employees right to be secure in his tenure by indiscriminately and completely ruling out all written and oral agreements inconsistent with the concept of regular employment defined therein. Where an employee has been engaged to perform activities which are usually necessary or desirable in the usual business of the employer, such employee is deemed a regular employee and is entitled to security of tenure notwithstanding the contrary provisions of his contract of employment. x x x xxx xxx
At this juncture, the leading case of Brent School, Inc. v. Zamora proves instructive. As reaffirme d in subsequent cases, this Court has upheld the legality of fixed-term employment. It ruled that the decisive determinant in term employment should not be the activities that the employee is called upon to perform but the day certain agreed upon the parties for the commencement and termination of their employment relationship. But this Court went on to say that where from the circumstances it is apparent that the periods have been imposed to preclude acquisition of tenurial security by the employee, they should be struck down or disregarded as contrary to public policy and morals. In rendering this Decision, the Court emphasizes not only the constitutional bias in favor of the working class, but also the concern of the State for the plight of the disabled. The noble objectives of Magna Carta for Disabled Persons are not based merely on charity or accommodation, but on justice and the equal treatment of qualified persons, disabled or not. In the present case, the handicap of petitioners (deaf-mutes) is not a hindrance to their work. The eloquent proof of this statement is the repeated renewal of their employment contracts. Why then should they be dismissed, simply because they are physically impaired? The Court believes, that, after showing their fitness for the work assigned to them, they should be treated and granted the same rights like any other regular employees. In this light, we note the Office of the Solicitor Generals prayer joining the petitioners cause.[28] WHEREFORE, premises considered, the Petition is hereby GRANTED. The June 20, 1995 Decision and the August 4, 1995 Resolution of the NLRC are REVERSED and SET ASIDE. Respondent Far East Bank and Trust Company is hereby ORDERED to pay back wages and separation pay to each of the following twenty-seven (27) petitioners, namely, Marites Bernardo, Elvira Go Diamante, Rebecca E. David, David P. Pascual, Raquel Estiller, Albert Hallare, Edmund M. Cortez, Joselito O. Agdon, George P. Ligutan Jr., Lilibeth Q. Marmolejo, Jose E. Sales, Isabel Mamauag, Violeta G. Montes, Albino Tecson, Melody V. Gruela, Bernadeth D. Agero, Cynthia de Vera, Lani R. Cortez, Ma. Isabel B. Concepcion, Margaret Cecilia Canoza, Thelma Sebastian, Ma. Jeanette Cervantes, Jeannie
Ramil, Rozaida Pascual, Pinky Baloloa, Elizabeth Ventura and Grace S. Pardo. The NLRC is hereby directed to compute the exact amount due each of said employees, pursuant to existing laws and regulations, within fifteen days from the finality of this Decision. No costs. SO ORDERED. 3. CALALANG V. WILLAMS Maximo Calalang, in his capacity as a private citizen and as a taxpayer of Manila, brought before this court this petition for a writ of prohibition against the respondents, A. D. Williams, as Chairman of the National Traffic Commission; Vicente Fragante, as Director of Public Works; Sergio Bayan, as Acting Secretary of Public Works and Communications; Eulogio Rodriguez, as Mayor of the City of Manila; and Juan Dominguez, as Acting Chief of Police of Manila. chanroblespublishingcompany It is alleged in the petition that the National Traffic Commission, in its resolution of July 17, 1940, resolved to recommend to the Director of Public Works and to the Secretary of Public Works and Communications that animaldrawn vehicles be prohibited from passing along Rosario Street extending from Plaza Calderon de la Barca to Dasmari as Street, from 7:30 a.m. to 12:30 p.m. and from 1:30 p.m. to 5:30 p.m.; and along Rizal Avenue extending from the railroad crossing at Antipolo Street to Echague Street, from 7 a.m. to 11 p.m., from a period of one year from the date of the opening of the Colgante Bridge to traffic; that the Chairman of the National Traffic Commission, on July 18, 1940 recommended to the Director of Public Works the adoption of the measure proposed in the resolution aforementioned, in pursuance of the provisions of Commonwealth Act No. 548 which authorizes said Director of Public Works, with the approval of the Secretary of Public Works and Communications, to promulgate rules and regulations to regulate and control the use of and traffic on national roads; that on August 2, 1940, the Director of Public Works, in his first indorsement to the Secretary of Public Works and Communications, recommended to the latter the approval of the recommendation made by the Chairman of the National Traffic Commission as aforesaid, with the modification that the closing of Rizal Avenue to traffic to animal-drawn vehicles be limited to the portion thereof extending from the railroad crossing at Antipolo Street to Azcarraga Street; that on August 10, 1940, the Secretary of Public Works and Communications, in his second indorsement addressed to the Director of Public Works, approved the recommendation of the latter that Rosario Street and Rizal Avenue be closed to traffic of animal-drawn vehicles, between the points and during the hours as above indicated, for a period of one year from the date of the opening of the Colgante Bridge to traffic; that the Mayor of Manila and the Acting Chief of Police of Manila have enforced and caused to be enforced the rules and regulations thus adopted; that as a consequence of such enforcement, all animal-drawn vehicles are not allowed to pass and pick up passengers in the places above- mentioned to the detriment not only of their owners but of the riding public as well. chanroblespublishingcompany It is contended by the petitioner that Commonwealth Act No. 548 by which the Director of Public Works, with the approval of the Secretary of Public Works and Communications, is authorized to promulgate rules and regulations for the regulation and control of the use of and traffic on national roads and streets is unconstitutional because it constitutes an undue delegation of legislative power. This contention is untenable. As was observed by this court in Rubi vs. Provincial Board of Mindoro (39 Phil, 660, 700), The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and since followed in a multitude of cases, namely: The true distinction therefore is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. (Cincinnati, W. & Z. R. Co. vs. Commrs. Clinton County, 1 Ohio St., 88.) Discretion, as held by Chief Justice Marshall in Wayman vs. Southard (10 Wheat., 1) may be committed by the Legislature to an executive department or official. The Legislature may make decisions of executive departments or subordinate officials thereof, to whom it has committed the execution of certain acts, final on questions of fact. (U.S. vs. Kinkead, 248 Fed., 141.) The growing tendency in the decisions is to give prominence to the necessity of the case. chanroblespublishingcompany
Section 1 of Commonwealth Act No. 548 reads as follows: SECTION1. To promote safe transit upon, and avoid obstructions on, roads and streets designated as national roads by acts of the National Assembly or by executive orders of the President of the Philippines, the Director of Public Works, with the approval of the Secretary of Public Works and Communications, shall promulgate the necessary rules and regulations to regulate and control the use of and traffic on such roads and streets. Such rules and regulations, with the approval of the President, may contain provisions controlling or regulating the construction of buildings or other structures within a reasonable distance from along the national roads. Such roads may be temporarily closed to any or all classes of traffic by the Director of Public Works and his duly authorized representatives whenever the condition of the road or the traffic thereon makes such action necessary or advisable in the public convenience and interest, or for a specified period, with the approval of the Secretary of Public Works and Communications. chanroblespublishingcompany The above provisions of law do not confer legislative power upon the Director of Public Works and the Secretary of Public Works and Communications. The authority therein conferred upon them and under which they promulgated the rules and regulations now complained of is not to determine what public policy demands but merely to carry out the legislative policy laid down by the National Assembly in said Act, to wit, to promote safe transit upon and avoid obstructions on, roads and streets designated as national roads by acts of the National Assembly or by executive orders of the President of the Philippines and to close them temporarily to any or all classes of traffic whenever the condition of the road or the traffic makes such action necessary or advisable in the public convenience and interest. The delegated power, if at all, therefore, is not the determination of what the law shall be, but merely the ascertainment of the facts and circumstances upon which the application of said law is to be predicated. To promulgate rules and regulations on the use of national roads and to determine when and how long a national road should be closed to traffic, in view of the condition of the road or the traffic thereon and the requirements of public convenience and interest, is an administrative function which cannot be directly discharged by the National Assembly. It must depend on the discretion of some other government official to whom is confided the duty of determining whether the proper occasion exists for executing the law. But it cannot be said that the exercise of such discretion is the making of the law. As was said in Lockes Appeal (72 Pa. 491): To assert that a law is less than a law, because it is made to depend on a future event or act, is to rob the Legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossible to fully know. The proper distinction the court said was this: The Legislature cannot delegate its power to make the law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and, must, therefore, be a subject of inquiry and determination outside of the halls of legislation. (Field vs. Clark, 143 U. S. 649, 694; 36 L. Ed. 294.) In the case of People vs. Rosenthal and Osme a, G.R. Nos. 46076 and 46077, promulgated June 12, 1939, and in Pangasinan Transportation vs. The Public Service Commission, G.R. No. 47065, promulgated June 26, 1940, this Court had occasion to observe that the principle of separation of powers has been made to adapt itself to the complexities of modern governments, giving rise to the adoption, within certain limits, of the principle of subordinate legislation, not only in the United States and England but in practically all modern governments. Accordingly, with the growing complexity of modern life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the laws, the rigidity of the theory of separation of governmental powers has, to a large extent, been relaxed by permitting the delegation of greater powers by the legislative and vesting a larger amount of discretion in administrative and executive officials, not only in the execution of the laws, but also in the promulgation of certain rules and regulations calculated to promote public interest. chanroblespublishingcompany The petitioner further contends that the rules and regulations promulgated by the respondents pursuant to the provisions of Commonwealth Act No. 548 constitute an unlawful interference with legitimate business or trade and abridge the right to personal liberty and freedom of locomotion. Commonwealth Act No. 548 was passed by the National Assembly in the exercise of the paramount police power of the state. chanroblespublishingcompany
Said Act, by virtue of which the rules and regulations complained of were promulgated, aims to promote safe transit upon and avoid obstructions on national roads, in the interest and convenience of the public. In enacting said law, therefore, the National Assembly was prompted by considerations of public convenience and welfare. It was inspired by a desire to relieve congestion of traffic. which is, to say the least, a menace to public safety. Public welfare, then, lies at the bottom of the enactment of said law, and the state in order to promote the general welfare may interfere with personal liberty, with property, and with business and occupations. Persons and property may be subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state (U.S. vs. Gomez Jesus, 31 Phil., 218). To this fundamental aim of our Government the rights of the individual are subordinated. Liberty is a blessing without which life is a misery, but liberty should not be made to prevail over authority because then society will fall into anarchy. Neither should authority be made to prevail over liberty because then the individual will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind through education and personal discipline, so that there may be established the resultant equilibrium, which means peace and order and happiness for all. The moment greater authority is conferred upon the government, logically so much is withdrawn from the residuum of liberty which resides in the people. The paradox lies in the fact that the apparent curtailment of liberty is precisely the very means of insuring its preservation. chanroblespublishingcompany The scope of police power keeps expanding as civilization advances. As was said in the case of Dobbins vs. Los Angeles (195 U.S. 223, 238; 49 L. ed. 169), the right to exercise the police power is a continuing one, and a business lawful today may in the future, because of the changed situation, the growth of population or other causes, become a menace to the public health and welfare, and be required to yield to the public good. And in People vs. Pomar (46 Phil., 440), it was observed that advancing civilization is bringing within the polic e power of the state today things which were not thought of as being within such power yesterday. The development of civilization, the rapidly increasing population, the growth of public opinion, with an increasing desire on the part of the masses and of the government to look after and care for the interests of the individuals of the state, have brought within the police power many questions for regulation which formerly were not so considered. chanroblespublishingcompany The petitioner finally avers that the rules and regulations complained of infringe upon the constitutional precept regarding the promotion of social justice to insure the well-being and economic security of all the people. The promotion of social justice, however, is to be achieved not through a mistaken sympathy towards any given group. Social justice is neither communism, nor despotism, nor atomism, nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra- constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex. chanroblespublishingcompany Social justice, therefore, must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with the fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about the greatest good to the greatest number. chanroblespublishingcompany IN VIEW OF THE FOREGOING, the Writ of Prohibition Prayed for is hereby denied, with costs against the petitioner. So ordered. Avance a, C.J., Imperial, Diaz and Horrilleno, JJ., concur. 4. PHIL MERCHANT MARINE SCHOOL V. CA PHILIPPINE MERCHANT MARINE SCHOOL, INC. (PMMSI), was established in Manila in 1950 to train and produce competent marine officers. It offers a two-year course in Marine Engineering (A.M.E.) and a four-year
course in Marine Transportation (B.S.M.T.). In 1978 it established a branch in Talon, Las Pias, Metro Manila. But we are here concerned only with the main school in Manila. For several times prior to 1985 respondent Department of Education, Culture and Sports (DECS) disapproved petitioner's requests for renewal permit/recognition. However, on 11 March 1986 the DECS issued petitioner a renewal permit for SY 1985-1986. Later, petitioner applied for a summer permit for 1986 which the DECS favorably indorsed to the Minister of Education in consideration of the graduating students for summer. Thereafter the application was returned to Director Modesta Boquiren of the DECS for evaluation and decision pursuant to the authority delegated to the Regions under Department Order No. 22, series of 1975. Director Boquiren issued petitioner the summer permit for 1986 based on the previously stated humanitarian reason but subject to the condition that petitioner should not enroll students for the first semester of SY 1986-1987 until a permit therefor was granted and that the enrollment list for the summer term be submitted immediately. Sometime in 1986 the DECS received a complaint from Felixberto B. Galvez, president of petitioner's Faculty Association, NAFLU-KMU, concerning the issuance of summer permit to petitioner and of its holding of classes for courses not recognized by the Government. Galvez requested that the matter be looked into as well as the possible revocation of petitioner's authority due to persistent violation of the orders of the DECS. In response, the DECS through Director Boquiren recommended that petitioner's summer permit be revoked and that the school be closed effective SY 1986-1987 on the ground that: (a) petitioner did not have a renewal permit/recognition for SY 1986-1987; (b) several communications were sent to petitioner's head telling him not to operate without permit and to explain within seventy-two (72) hours from receipt of Director Boquiren's letter dated 9 July 1986 why no drastic action should be taken against it but said communication was never answered; and, (c) petitioner did not correct the deficiencies indicated in the renewal permit for 1985-1986. Accordingly, in a 3rd Indorsement dated 23 September 1986 the DECS through then Minister Lourdes R. Quisumbing approved the following courses of action for petitioner: (a) the students in the two courses who were graduating for SY 1986-1987 would be allowed to graduate even without permit for said courses as a special case provided that they completed the requirements for graduation and subject to prior issuance of Special Order; and, (b) the remaining students should be allowed to transfer to other authorized schools. In a letter dated 30 September 1986 Director Boquiren, informed petitioner of the aforementioned courses of action and directed immediate implementation thereof. On 9 April 1987 the DECS Inter-Agency Technical Committee (IATCOM) recommended renewal of permits for the maritime courses offered by petitioner provided that a development plan for the improvement of its buildings classrooms, laboratory rooms, library offices and other rooms be formulated and implemented before the start of school year 1987-1988. Despite lack of permit, petitioner continued to enroll students and offer courses in Marine Engineering and Marine Transportation for SY 1987-1988. This prompted the DECS through Director Hernando Dizon to write petitioner on 4 August 1988 directing it not to operate without permit and inviting its attention to the provisions of the Private School Law 1 as reiterated in the Education Act of 1982 2 which prohibits operation of unauthorized schools/courses. On 28 October 1988 petitioner sent a letter to Director Dizon applying for permit/recognition to conduct classes for the two (2) maritime courses retroactive from summer of 1987 up to SY 1988-1989 and informing him of its transfer to the 5th Floor of the Republic Supermarket Building, corner Rizal Avenue and Soler St., Sta. Cruz, Manila.
On the basis of the favorable report of a supervisor of the Bureau of Higher Education who visited the premises of petitioner on 14 November 1988, a director of said Bureau recommended renewal of petitioner's permit. However, in a DECS-PAMI survey conducted by the DECS technical staff in 1988, petitioner scored only 32 points out of a possible 1,026 points for requirements in Nautical Engineering, and only 207 points out of 905 points in Marine Engineering, way below the DECS requirements. Subsequent inspection of petitioner's premises by the Bureau of Higher Education-DECS Technical Panel for Maritime Education (TPME) affirmed the findings of the DECS-PAMI survey. It found petitioner deficient in terms of the minimum requirements as provided in DECS Order No. III, series of 1987, which refers to the policies and standards for Maritime Education Plan. In a memorandum dated 19 January 1989 addressed to DECS Director Nilo Rosas, it set forth the following recommendations: 1. The PMMS administration may be given a last chance to put up at least 60% of the minimum standard equipment for a period of about two months (January-March 1989). 2. The DECS with TPME will conduct a re-inspection sometime the first week of April to monitor the progress of the requirements. 3. No new and old students will be allowed to enroll during summer of 1989 and the subsequent semesters pending issuance of a permit. 4. Therefore, issuance of a school permit for 1987-1988 to 1988-89 shall be held in abeyance pending compliance of at least 60% of the requirements. 5. DECS higher authorities shall decide whether the graduating students for the second semester 1988-89 will be allowed to graduate and a retroactive school permit for the school years 1987-88, 1988-89 can be granted. 3 As recommended, the TPME Secretariat conducted a reinspection of petitioner's premises, then submitted a report dated 18 April 1989 with the following new recommendations 1. Gradual phasing out of the BSMT Nautical Studies and Associate in Marine Engineering programs. Under this scheme, no new enrollees should be accepted anymore for the 1st year BSMT Nautical Studies and AME starting 1st semester of school year 1989-90. 2. If the school can come up with the DECS minimum standard within the phasing out period, suspension order may be lifted. 3. If the school fails to meet the DECS minimum standard at the end of the phasing out period, closure order will be issued. 4. No special permit for the BSMT Nautical Studies and AME courses should be granted as a special case. However, during the phasing out period students may be allowed to graduate under PMMS, Talon, Las Pias, based on these considerations 1. PMMS, Manila, has inadequate training facilities and equipment for BSMT Nautical Studies and AME programs. 2. The school has not acquired its own school site and building. The present school campus is not conducive for training and is found to be very limited in space so that there is difficulty for school development and expansion.
3. On 23 September 1986, the Secretary of Education, Culture and Sports already issued a cease to operate order to the school head of PMMS. The said indorsement letter also provided humanitarian decision (reason?) which granted permit to PMMS as a special case, just to allow BSMT and AME students to graduate and the remaining students were advised to transfer to authorized/recognized schools. 4. Labor dispute occurred in 1987. The conflict between the employees and employer is a manifestation of mismanagement of school. 4 In a letter dated 27 April 1989 Director Rosas informed petitioner of the TPME report and recommendations and invited it for a conference on 2 May 1989 before any major decision and action would be made. On 2 May 1989, the TPME Secretariat submitted another memorandum on its reinspection of petitioner's premises made on 28 April 1989. Based on its findings that no substantial improvement in terms of minimum requirements, equipment and training facilities since the January 1989 inspection was made, it reiterated the recommendations it submitted to the DECS Bureau of Higher Education. For this reason, in the letter dated 25 May 1989 Director Rosas notified petitioner about the aforementioned report and the DECS' decision that: 1. The BSMT Nautical Studies and Associate in Marine Engineering courses be gradually phased out. Such being the case, the school shall no longer be allowed to accept 1st year students and new enrollees starting 1st semester of school year 1989-90. 2. The second year and third year students may be allowed to remain until they graduate. However, the school may opt to transfer these students to PMMS, Talon, Las Pias, due to the following considerations: 1. The school's training equipment and instructional facilities are very far below the standards set by DECS.
2. The school site and building are not owned by the school but only leased with contract of renewal to be made annually. 3. The present location of the school does not warrant for expansion, development and improvement.
4. The present location of the school is not conducive for learning, it being located on the 5th floor of a supermarket in the downtown section of the city. 5. A cease to operate order was issued by Secretary Lourdes R. Quisumbing sometime in 1986, which order was violated by the school. 5 In a letter dated 11 July 1989 the DECS through Secretary Quisumbing informed petitioner that it had received reports that petitioner enrolled freshmen for its maritime programs which were ordered phased out effective SY 1989-1990 per letter of Director Rosas dated 25 May 1989; called petitioner's attention to the provision of Sec. 1, Rule 1, Part V, of the Implementing Rules of the Education Act of 1982 which makes it punishable and subject to penalties the operation of a school through the conduct or offering of Educational Programs or Courses of Studies/Training, without prior government authorization and/or in violation of any of the terms and conditions of said permit or recognition; directed that in accordance with the phase-out order, petitioner's Manila campus is allowed to operate only the 2nd, 3rd and 4th years of the authorized maritime programs which shall be gradually phased out; and, required petitioner to comment on the reported unauthorized enrollment.
In its letter to the DECS dated 26 July 1989, petitioner moved for reconsideration stating that the finding that it had not complied with the minimum requirements was due to the following: that as early as 21 June 1989 it filed a letter requesting reconsideration of the letter dated 25 May 1989 of Director Rosas; that since there was no reply it believed that the 25 May 1989 order was reconsidered sub-silencio and that petitioner was allowed to enroll 1st year students for SY 1989-1990; and, that it had undertaken improvements in all of its facilities in compliance with DECS requirements. In this regard, it requested another inspection of its premises. Pursuant to petitioner's request, another inspection of the Manila premises was conducted by the TPME-Secretariat on 8 August 1989. However, petitioner only obtained a general rating of 31.17% for Nautical Studies and 28.53% for Marine Engineering. Consequently, the inspection team reiterated its previous recommendation to gradually phase out the maritime programs of petitioner's Manila campus effective SY 1990-1991 and that no new freshman students be accepted beginning SY 1990-1991. Accordingly, in a letter dated 25 September 1989 the DECS through Secretary Quisumbing ordered petitioner to discontinue its Maritime program in the Manila campus effective school year 1990-1991 and suggested that efforts be made towards the development of PMMS, Las Pias, which has a great potential of being a good Maritime School. 6 The phase-out order was reiterated in subsequent letters dated 19 February 1990 and 9 May 1990 of Director Rosas and then DECS Secretary Isidro D. Cario, respectively. Subsequently, petitioner moved to reconsider the phase-out order in its letter of 21 May 1990, which request was denied by the DECS through Undersecretary Benjamin Tayabas in his letter of 1 June 1990. The letter reads With reference to your request to rescind an order to phase-out the maritime courses at PMMS, Manila, please be informed that this Department sees no reason for such action as the conditions obtaining in the school when the phase-out order was issued haven't shown any significant improvement inspite of the fact that the PMMS had been given reasonable period to comply with the minimum standard requirements prescribed by the Department of Education, Culture and Sports. Maritime Education courses are highly specialized and require adequate training facilities and equipment in order to ensure quality. However, the series of visits made by the staff of the BHE, NCR, and members of the Technical Panel on Maritime Education revealed the following findings: (a) On April 9, 1987 the Inter-Agency Technical Committee (IATCOM) recommended the renewal of permits of the maritime courses, provided, that a development plan for the improvement of the buildings, classrooms, laboratory rooms, library offices and other rooms shall be formulated and implemented before the start of SY 19871988. (b) In 1988, the DECS-PAMI survey conducted by technical persons, revealed that PMMS, then located at the 5th floor of the Republic Supermarket, obtained a general score of 32 out of 1,026 points for requirements in the Nautical course and 207 out of 905 points for the Marina Engineering course. It is needless to say that these findings are way below the DECS requirements. Above all, the school site was described as not conducive for offering maritime program due to its limited area. Furthermore, the lease on the premises is not a long term lease (2 years), a condition which would deter the school from fully developing the school site. (c) In January of 1989, the findings of the Secretariat for the Technical Panel for Maritime Education (TPME) re-affirmed the findings of the DECS-PAMI Survey. Very few equipment were found for the Maritime courses. You concurred with these findings in a dialogue with the Director of the Bureau of Higher Education Secretariat. You appealed for another chance and requested for re-inspection before the opening of SY 1989-1990.
(d) As per agreement, on April 28, 1989 another re-inspection was made and it showed that the school did not show any substantial improvement. Then on May 25, 1989, Secretary Lourdes Quisumbing issued the phase-out order of our maritime programs in Manila campus. However, the Department again allowed PMMS, Manila, to operate the maritime courses for SY 1989-1990 despite the above phase-out order. (e) Another evaluation of your school was conducted by technical people on August 8, 1989, as requested. The findings revealed that your school obtained a general rating of 31.17% for Nautical Studies and 28.53% for Marine Engineering. The PMMS has been provided with the Policies and Standards for Maritime Education and, as revealed by the foregoing facts, the series of inspection and evaluation were (sic) done by technical persons who have expertise in the field of maritime education. Therefore, the requests relative to these are not valid. It is therefore with regrets that this Department cannot rescind its order to phase-out the Maritime courses at PMMS, Manila and the school is admonished not to accept incoming first year students starting school year 1990-1991. So that by school year 1992-1993, the maritime courses at the Manila campus would be fully phased-out. . . . 7 It is suggested that PMMS concentrate its development plans in the Las Pias Campus which has a great potential of being a good maritime school. Not satisfied therewith, petitioner appealed the matter to respondent Office of the President. During the pendency of the appeal the DECS thru Secretary Cario issued a Closure Order dated 27 August 1991 In view of the report which was confirmed by the evaluation team from the National Capital Region DECS Regional Office, that Philippine Merchant Marine School (PMMS), Manila, has been accepting freshman students of the maritime programs despite the phase-out order which was issued last September 28, (sic) 1989 by former Secretary Lourdes R. Quisumbing and further reiterated by the undersigned, dated May 9, 1990, the Department, hereby orders Closure of your maritime programs of your school effective second semester school year 1991-1992, otherwise this Department shall be constrained to institute the appropriate administrative, civil and criminal proceedings against you and the other responsible officers of your school pursuant to Section 68, Batas Pambansa Blg. 232. . . . The transfer of the affected students shall be facilitated by the National Capital Region in accordance with our Memorandum dated August 16, 1991, xerox copy of which is hereto attached for your information. For your guidance and strict compliance. 8 In a Letter dated 24 August 1992 petitioner sought reconsideration of the 27 August 1991 Closure Order and at the same time requested that special orders be issued to its graduates for SY 1991-1992. In letters filed with the Office of the President dated 2 and 3 October 1992 petitioner alleged compliance with DECS requirements. The letters were referred to the DECS for consideration. On 10 November 1992 the Office of the President through respondent Executive Secretary Edelmiro Amante rendered a Resolution dismissing petitioner's appeal. 9 It found no plausible reason to disturb the action of the
DECS Secretary in the light of the conspicuous fact that petitioner had repeatedly failed to comply with the phaseout order since 1986. Moreover, the grounds advanced by petitioner have already been passed upon by the DECS. Petitioner moved for reconsideration praying that the case be remanded to the DECS for another ocular inspection and evaluation of its alleged improved facilities. Petitioner anchored its motion on the proposition that since it had made substantial improvements on school equipment and facilities there existed no valid ground to deny them a permit to offer maritime courses. After another circumspect review of the case, the Office of the President found no cogent reason to set aside its previous resolution. It opined that Mere alleged efforts to improve the facilities and equipments (sic) which were long due since 1986, do not warrant the reversal of our previous resolution. It bears stressing as the records may show, that the phase-out order of DECS was based not only on PMMSI's failure to provide adequate equipment and facilities but also on PMMSI's failure to comply with the standard requirements prescribed for a school site. xxx xxx xxx
Apart from these, PMMSI's adamant refusal to comply with the orders of the DECS to phase out its unauthorized courses is sufficient ground to uphold the order appealed from. Since 1986, PMMSI has been applying for a permit to offer maritime courses but has been invariably denied for failure to comply with the minimum requirements prescribed by DECS. Notwithstanding these denials, PMMSI continues to offer maritime courses and to admit freshmen students in clear violation of Section 1, Rule 1, of the Education Act of 1982 . . . . xxx xxx xxx
PMMSI's refusal to comply with the phase-out order on the ground that the same is not yet final and executory is untenable. While said phase-out may not be final and executory, there was no reason for PMMSI to offer maritime courses without the requisite prior authority of the DECS. PMMSI possessed no valid permit prior to the issuance of the phase-out. There was no authority to speak of. 10 Thus the motion was denied in the Resolution dated 12 January 1993 through respondent Assistant Executive Secretary Renato Corona. 11 Petitioner assailed both resolutions of the Office of the President before respondent Court of Appeals by way of certiorari. It alleged that the resolutions failed to meet the constitutional requirement of due process because the basis for affirming the DECS phase-out and closure orders was not sufficiently disclosed. Furthermore, its letters dated 2 and 3 October 1992 which presented incontrovertible proof that it had introduced substantial improvements on its facilities for the past two and a half years while its appeal was pending were not taken into account, thereby gravely abusing its discretion. Respondent Court of Appeals brushed aside the allegations of petitioner since [T]he Office of the President, in the resolution dated November 10, 1992, appears to have restated the report of the respondent DECS, meaning, that it adopted as its own the DECS' report, but that is not a violation of the Constitution and the Rules of Court, in line with Alba Patio De Makati vs. Alba Patio De Makati Employees Association, 128 SCRA 253, 264- 265 . . . Petitioner's latest attempt at improving its facilities does not warrant a reversal of the phase-out order. For, in spite of the claim that it spent on improvements, the basic problem remained as it still occupies the fifth floor of the William Liao building, which is not conducive to learning and has a limited area for expansion and development. 12
On 22 July 1993 the petition was dismissed. 13 On 26 November 1993 the motion for reconsideration was denied. 14 Petitioner imputes error on respondent court: (1) in not setting aside the questioned resolutions and orders of public respondents which were rendered without due process of law since (a) petitioner was not afforded the right to fully present its case and submit evidence in support thereof; (b) public respondents did not consider the evidence presented by petitioner; (c) public respondents' decisions have no substantial evidence to support them; (d) public respondents' decisions did not disclose the bases therefor; and, (2) in implementing the closure orders which had not become final and executory. Petitioner asseverates that the DECS denied its right to a hearing on the supposed deficiencies which allegedly justified denial of its request for issuance of a renewal permit. Likewise, the DECS denied petitioner the opportunity to correct such deficiencies. The Office of the President totally ignored supervening events properly brought to its attention in the letters of petitioner dated 2 and 3 October 1992. It issued resolutions strictly on the basis of the DECS' representations which do not amount to substantial evidence. The 10 November 1992 Resolution failed to sufficiently disclose the basis for affirmation of the DECS' phase-out and closure orders. The 12 January 1993 Resolution still refused to take into consideration petitioner's compliance with the DECS' requirements. Petitioner did not violate the Education Act of 1992 because it was authorized to operate by virtue of the provisional authorities issued by the DECS. The DECS orders were not final and executory because petitioner challenged them and appropriately availed itself of the remedies available to it under the law. Before proceeding to resolve the merits of this case, we shall state briefly the concept regarding establishment of schools. The educational operation of schools is subject to prior authorization of the government and is effected by recognition. In the case of government-operated schools, whether local, regional or national, recognition of educational programs and/or operations is deemed granted simultaneously with establishment. In all other cases the rules and regulations governing recognition are prescribed and enforced by the DECS, defining therein who are qualified to apply, providing for a permit system, stating the conditions for the grant of recognition and for its cancellation and withdrawal, and providing for related matters. 15 The requirement on prior government authorization is pursuant to the State policy that educational programs and/or operations shall be of good quality and therefore shall at least satisfy minimum standards with respect to curricula, teaching staff, physical plant and facilities and of administrative or management viability. 16 Set against the records of the case, the assertion of petitioner that it was deprived of its right to a hearing and any opportunity whatsoever to correct the alleged deficiencies readily collapses. The earlier narration of facts clearly demonstrates that before the DECS issued the phase-out and closure orders, petitioner was duly notified, warned and given several opportunities to correct its deficiencies and to comply with pertinent orders and regulations. Petitioner has gone all the way up to the Office of the President to seek a reversal of the phase-out and closure orders. There is thus no reason to complain of lack of opportunity to explain its side as well as to comply with the alleged deficiencies. 17 We agree with the observation of the Office of the Solicitor General that As long as the parties were given opportunity to be heard before judgment was rendered, the demands of due process were sufficiently met (Lindo v. COMELEC, 194 SCRA 25). It should also be noted that petitioner herein repeatedly sought reconsideration of the various orders of respondent DECS and its motions were duly considered by respondent DECS to the extent of allowing and granting its request for re-inspection of its premises. In connection therewith, it has been ruled that the opportunity to be heard is the essence of procedural due process and that any defect is cured by the filing of a motion for reconsideration (Medenilla v. Civil Service Commission, 194 SCRA 278). 18
Furthermore, the Office of the President properly ignored (in the sense that it did not find worthy of consideration) the alleged supervening events, i.e., substantial improvements on school equipment and facilities during the pendency of the case before said Office because the improvements should have been undertaken starting 1986. Moreover, the phase-out and closure orders were based not only on petitioner's deficiencies as a maritime institute but also on its continued operation without the requisite authorization from the DECS and acceptance of freshman students in blatant violation of the latter's orders and/or persistent warnings not to do so. Verily, there are sufficient grounds to uphold the phase-out and closure orders of the DECS which were issued conformably with Sec. 28 of the Education Act of 1982 which provides: Sec. 28. . . . . Punishable Violation. . . . Operation of schools and educational programs without authorization, and/or operation thereof in violation of the terms of recognition, are hereby declared punishable violations subject to the penalties provided in this Act. Secs. 68 and 69 of the same Act provide the penalties: Sec. 68. Penalty Clause. Any person upon conviction for an act in violation of Section 28, Chapter 3, Title III, shall be punished with a fine of not less than two thousand pesos (P2,000.00) nor more than ten thousand pesos (P10,000.00) or imprisonment for a maximum period of two (2) years, or both, in the discretion of the court. If the act is committed by a school corporation, the school head together with the person or persons responsible for the offense or violation shall be equally liable. Sec. 69. Administrative Sanction. The Minister (Secretary) of Education, Culture and Sports may prescribe and impose such administrative sanction as he may deem reasonable and appropriate in the implementing rules and regulations promulgated pursuant to this Act for any of the following causes . . . . 5. Unauthorized operation of a school, or course, or any component thereof . . . . The corresponding rules implementing Secs. 68 and 69 read Sec. 1. Punishable Acts and Penalties. The operation of a school, through the conduct or offering of educational programs or courses of studies/training without prior government authorization in the form of permit or recognition as provided for in Rule III, PART III of these Rules, and/or in violation of any of the terms and conditions of the said permit or recognition, have been declared punishable violations of the Act, subject to the penalties provided therein. Any person, therefore, upon conviction for an act constituting any of the foregoing punishable violations, shall be punished with a fine of not less than Two Thousand Pesos (P2,000.00) nor more than Ten Thousand Pesos (P10,000.00), or imprisonment for a maximum period of two (2) years, or both, in the discretion of the Court: Provided, however, that when the act is committed by a school corporation, the school head together with the person or persons responsible for the violation or offense shall be deemed equally liable. Sec. 2. Administrative Sanction. Without prejudice to the interest of students, teachers and employees, and independently of the penalty imposed in Sec. 1 under this Rule, the Minister may withdraw, suspend, revoke or cancel a school's authority to operate as an educational institution or to conduct educational programs or courses of studies/training, for any of the following causes, viz: . . . . e. Unauthorized operation of a school, or program or course of studies or component thereof, or any violation of the prescribed rules governing advertisements or announcements of educational institutions. Substantial evidence has been defined to be such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 19 A perusal of the questioned resolutions of the Office of the President reveals that they are
based on the records of the case which constitute substantial evidence, proving distinctly not only petitioner's consistent failure to meet the DECS' minimum standards for maritime institutes and correct its deficiencies but also its continued operation and offering of maritime courses despite the lack of permit. Contrary to the claim of petitioner, the 10 November 1992 Resolution of the Office of the President sufficiently disclosed the basis for its affirmance of the DECS' phase-out and closure orders: After a careful study, we are constrained to resolve that there exists no sufficient justification to modify, alter or reverse the appealed order. We find no plausible reason to disturb the action of the Secretary of Education, Culture and Sports, more so in light of the conspicuous fact that PMMS has repeatedly failed to comply with the phase out order since 1986. What is more, the grounds advanced by PMMS have already been passed upon, and separately resolved by the office a quo. 20 Petitioner's persistent refusal to comply with the phase-out orders on the ground that the same were not yet final and executory is untenable. As correctly held by the Office of the President . . . . While said phase-out (orders) may not be final and executory, there was no reason for PMMSI to offer maritime courses without, the requisite prior authority of the DECS. PMMSI possessed no valid permit prior to the issuance of the phase-out. There was no authority to speak of. 21 By reason of the special knowledge and expertise of administrative departments over matters falling under their jurisdiction, they are in a better position to pass judgment thereon and their findings of fact in that regard are generally accorded respect, if not finality, by the courts. In the case at bench, it is not the function of this Court nor any other court for that matter . . . to review the decisions and orders of the Secretary on the issue of whether or not an educational institution meets the norms and standards required for permission to operate and to continue operating as such. On this question, no Court has the power or prerogative to substitute its opinion for that of the Secretary. Indeed, it is obviously not expected that any Court would have the competence to do so. The only authority reposed in the Courts on the matter is the determination of whether or not the Secretary of Education, Culture and Sports has acted within the scope of powers granted him by law and the Constitution. As long as it appears that he has done so, any decision rendered by him should not and will not be subject to review and reversal by any court. Of course, if it should be made to appear to the Court that those powers were in a case exercised so whimsically, capriciously, oppressively, despotically or arbitrarily as to call for peremptory correction or stated otherwise, that the Secretary had acted with grave abuse of discretion, or had unlawfully neglected the performance of an act which the law specifically enjoins as a duty, or excluded another from the use or enjoyment of a right or office to which such other is entitled it becomes the Court's duty to rectify such action through the extraordinary remedies of certiorari, prohibition, or mandamus, whichever may properly apply. Yet even in these extreme instances, where a Court finds that there has been abuse of powers by the Secretary and consequently nullifies and/or forbids such an abuse of power, or commands whatever is needful to keep its exercise within bounds, the Court, absent any compelling reason to do otherwise, should still leave to the Secretary the ultimate determination of the issue of the satisfaction of fulfillment by an educational institution of the standards set down for its legitimate operation, as to which it should not ordinarily substitute its own judgment for that of said office. 22 There being no grave abuse of discretion committed by respondents representing the Office of the President in issuing the Resolutions of 10 November 1992 and 12 January 1993, respondent Court of Appeals did not err in sustaining the resolutions in question.
WHEREFORE , the petition is DENIED. The questioned Decision of the Court of Appeals dated 22 July 1993, as well as its Resolution of 26 November 1993, is AFFIRMED. Costs against petitioner. 5. MMDA V. CONCERNED RESIDENTS OF MANILA BAY On December 18, 2008, this Court rendered a Decision in G.R. Nos. 171947-48 ordering petitioners to clean up, rehabilitate and preserve Manila Bay in their different capacities. The fallo reads: WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R. CV No. 76528 and SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case No. 1851-99 are AFFIRMED but with MODIFICATIONS in view of subsequent developments or supervening events in the case. The fallo of the RTC Decision shall now read: WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government agencies to clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters to SB level (Class B sea waters per Water Classification Tables under DENR Administrative Order No. 34 [1990]) to make them fit for swimming, skindiving, and other forms of contact recreation. In particular: (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 countrys 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 Presidents 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 (Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-MarilaoObando (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 (Paraaque-Zapote, Las Pias) 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 countrys 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. SO ORDERED. The government agencies did not file any motion for reconsideration and the Decision became final in January 2009. The case is now in the execution phase of the final and executory December 18, 2008 Decision. The Manila Bay Advisory Committee was created to receive and evaluate the quarterly progressive reports on the activities undertaken by the agencies in accordance with said decision and to monitor the execution phase. In the absence of specific completion periods, the Committee recommended that time frames be set for the agencies to perform their assigned tasks. This may be viewed as an encroachment over the powers and functions of the Executive Branch headed by the President of the Philippines. This view is misplaced. The issuance of subsequent resolutions by the Court is simply an exercise of judicial power under Art. VIII of the Constitution, because the execution of the Decision is but an integral part of the adjudicative function of the Court. None of the agencies ever questioned the power of the Court to implement the December 18, 2008 Decision nor has any of them raised the alleged encroachment by the Court over executive functions. While additional activities are required of the agencies like submission of plans of action, data or status reports, these directives are but part and parcel of the execution stage of a final decision under Rule 39 of the Rules of Court. Section 47 of Rule 39 reads: Section 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: xxxx (c) In any other litigation between the same parties of their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. (Emphasis supplied.) It is clear that the final judgment includes not only what appears upon its face to have been so adjudged but also those matters "actually and necessarily included therein or necessary thereto." Certainly, any activity that is needed to fully implement a final judgment is necessarily encompassed by said judgment. Moreover, the submission of periodic reports is sanctioned by Secs. 7 and 8, Rule 8 of the Rules of Procedure for Environmental cases:
Sec. 7. Judgment.If warranted, the court shall grant the privilege of the writ of continuing mandamus requiring respondent to perform an act or series of acts until the judgment is fully satisfied and to grant such other reliefs as may be warranted resulting from the wrongful or illegal acts of the respondent. The court shall require the respondent to submit periodic reports detailing the progress and execution of the judgment, and the court may, by itself or through a commissioner or the appropriate government agency, evaluate and monitor compliance. The petitioner may submit its comments or observations on the execution of the judgment. Sec. 8. Return of the writ.The periodic reports submitted by the respondent detailing compliance with the judgment shall be contained in partial returns of the writ. Upon full satisfaction of the judgment, a final return of the writ shall be made to the court by the respondent. If the court finds that the judgment has been fully implemented, the satisfaction of judgment shall be entered in the court docket. (Emphasis supplied.) With the final and executory judgment in MMDA, the writ of continuing mandamus issued in MMDA means that until petitioner-agencies have shown full compliance with the Courts orders, the Court exercises continuing jurisdiction over them until full execution of the judgment. There being no encroachment over executive functions to speak of, We shall now proceed to the recommendation of the Manila Bay Advisory Committee. Several problems were encountered by the Manila Bay Advisory Committee.2 An evaluation of the quarterly progressive reports has shown that (1) there are voluminous quarterly progressive reports that are being submitted; (2) petitioner-agencies do not have a uniform manner of reporting their cleanup, rehabilitation and preservation activities; (3) as yet no definite deadlines have been set by petitioner DENR as to petitioner-agencies timeframe for their respective duties; (4) as of June 2010 there has been a change in leadership in both the national and local levels; and (5) some agencies have encountered difficulties in complying with the Co urts directives. In order to implement the afore-quoted Decision, certain directives have to be issued by the Court to address the said concerns. Acting on the recommendation of the Manila Bay Advisory Committee, the Court hereby resolves to ORDER the following: (1) The Department of Environment and Natural Resources (DENR), as lead agency in the Philippine Clean Water Act of 2004, shall submit to the Court on or before June 30, 2011 the updated Operational Plan for the Manila Bay Coastal Strategy. The DENR is ordered to submit summarized data on the overall quality of Manila Bay waters for all four quarters of 2010 on or before June 30, 2011. The DENR is further ordered to submit the names and addresses of persons and companies in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan that generate toxic and hazardous waste on or before September 30, 2011. (2) On or before June 30, 2011, the Department of the Interior and Local Government (DILG) shall order the Mayors of all cities in Metro Manila; the Governors of Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan; and the Mayors of all the cities and towns in said provinces to inspect all factories, commercial establishments and private homes along the banks of the major river systemssuch as but not limited to the Pasig-Marikina-San Juan Rivers, the National Capital Region (Paranaque-Zapote, Las Pinas) Rivers, the Navotas-Malabon-TullahanTenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, and the Laguna De Bayand other minor rivers and waterways within their jurisdiction that eventually
discharge water into the Manila Bay and the lands abutting it, to determine if they have wastewater treatment facilities and/or hygienic septic tanks, as prescribed by existing laws, ordinances, rules and regulations. Said local government unit (LGU) officials are given up to September 30, 2011 to finish the inspection of said establishments and houses. In case of non-compliance, the LGU officials shall take appropriate action to ensure compliance by non-complying factories, commercial establishments and private homes with said law, rules and regulations requiring the construction or installment of wastewater treatment facilities or hygienic septic tanks. The aforementioned governors and mayors shall submit to the DILG on or before December 31, 2011 their respective compliance reports which will contain the names and addresses or offices of the owners of all the noncomplying factories, commercial establishments and private homes, copy furnished the concerned environmental agency, be it the local DENR office or the Laguna Lake Development Authority. The DILG is required to submit a five-year plan of action that will contain measures intended to ensure compliance of all non-complying factories, commercial establishments, and private homes. On or before June 30, 2011, the DILG and the mayors of all cities in Metro Manila shall consider providing land for the wastewater facilities of the Metropolitan Waterworks and Sewerage System (MWSS) or its concessionaires (Maynilad and Manila Water, Inc.) within their respective jurisdictions. (3) The MWSS shall submit to the Court on or before June 30, 2011 the list of areas in Metro Manila, Rizal and Cavite that do not have the necessary wastewater treatment facilities. Within the same period, the concessionaires of the MWSS shall submit their plans and projects for the construction of wastewater treatment facilities in all the aforesaid areas and the completion period for said facilities, which shall not go beyond 2037. On or before June 30, 2011, the MWSS is further required to have its two concessionaires submit a report on the amount collected as sewerage fees in their respective areas of operation as of December 31, 2010. (4) The Local Water Utilities Administration is ordered to submit on or before September 30, 2011 its plan to provide, install, operate and maintain sewerage and sanitation facilities in said cities and towns and the completion period for said works, which shall be fully implemented by December 31, 2020. (5) The Department of Agriculture (DA), through the Bureau of Fisheries and Aquatic Resources, shall submit to the Court on or before June 30, 2011 a report on areas in Manila Bay where marine life has to be restored or improved and the assistance it has extended to the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga and Bataan in developing the fisheries and aquatic resources in Manila Bay. The report shall contain monitoring data on the marine life in said areas. Within the same period, it shall submit its five-year plan to restore and improve the marine life in Manila Bay, its future activities to assist the aforementioned LGUs for that purpose, and the completion period for said undertakings. The DA shall submit to the Court on or before September 30, 2011 the baseline data as of September 30, 2010 on the pollution loading into the Manila Bay system from agricultural and livestock sources. (6) The Philippine Ports Authority (PPA) shall incorporate in its quarterly reports the list of violators it has apprehended and the status of their cases. The PPA is further ordered to include in its report the names, make and capacity of the ships that dock in PPA ports. The PPA shall submit to the Court on or before June 30, 2011 the measures it intends to undertake to implement its compliance with paragraph 7 of the dispositive portion of the MMDA Decision and the completion dates of such measures.
The PPA should include in its report the activities of its concessionaire that collects and disposes of the solid and liquid wastes and other ship-generated wastes, which shall state the names, make and capacity of the ships serviced by it since August 2003 up to the present date, the dates the ships docked at PPA ports, the number of days the ship was at sea with the corresponding number of passengers and crew per trip, the volume of solid, liquid and other wastes collected from said ships, the treatment undertaken and the disposal site for said wastes. (7) The Philippine National Police (PNP) Maritime Group shall submit on or before June 30, 2011 its five-year plan of action on the measures and activities it intends to undertake to apprehend the violators of Republic Act No. (RA) 8550 or the Philippine Fisheries Code of 1998 and other pertinent laws, ordinances and regulations to prevent marine pollution in Manila Bay and to ensure the successful prosecution of violators. The Philippine Coast Guard shall likewise submit on or before June 30, 2011 its five-year plan of action on the measures and activities they intend to undertake to apprehend the violators of Presidential Decree No. 979 or the Marine Pollution Decree of 1976 and RA 9993 or the Philippine Coast Guard Law of 2009 and other pertinent laws and regulations to prevent marine pollution in Manila Bay and to ensure the successful prosecution of violators. (8) The Metropolitan Manila Development Authority (MMDA) shall submit to the Court on or before June 30, 2011 the names and addresses of the informal settlers in Metro Manila who, as of December 31, 2010, own and occupy houses, structures, constructions and other encroachments established or built along the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros, in violation of RA 7279 and other applicable laws. On or before June 30, 2011, the MMDA shall submit its plan for the removal of said informal settlers and the demolition of the aforesaid houses, structures, constructions and encroachments, as well as the completion dates for said activities, which shall be fully implemented not later than December 31, 2015. The MMDA is ordered to submit a status report, within thirty (30) days from receipt of this Resolution, on the establishment of a sanitary landfill facility for Metro Manila in compliance with the standards under RA 9003 or the Ecological Solid Waste Management Act. On or before June 30, 2011, the MMDA shall submit a report of the location of open and controlled dumps in Metro Manila whose operations are illegal after February 21, 2006,3 pursuant to Secs. 36 and 37 of RA 9003, and its plan for the closure of these open and controlled dumps to be accomplished not later than December 31, 2012. Also, on or before June 30, 2011, the DENR Secretary, as Chairperson of the National Solid Waste Management Commission (NSWMC), shall submit a report on the location of all open and controlled dumps in Rizal, Cavite, Laguna, Bulacan, Pampanga and Bataan. On or before June 30, 2011, the DENR Secretary, in his capacity as NSWMC Chairperson, shall submit a report on whether or not the following landfills strictly comply with Secs. 41 and 42 of RA 9003 on the establishment and operation of sanitary landfills, to wit: National Capital Region 1. Navotas SLF (PhilEco), Brgy. Tanza (New Site), Navotas City 2. Payatas Controlled Dumpsite, Barangay Payatas, Quezon City Region III 3. Sitio Coral, Brgy. Matictic, Norzagaray, Bulacan
4. Sitio Tiakad, Brgy. San Mateo, Norzagaray, Bulacan 5. Brgy. Minuyan, San Jose del Monte City, Bulacan 6. Brgy. Mapalad, Santa Rosa, Nueva Ecija 7. Sub-zone Kalangitan, Clark Capas, Tarlac Special Economic Zone Region IV-A 8. Kalayaan (Longos), Laguna 9. Brgy. Sto. Nino, San Pablo City, Laguna 10. Brgy. San Antonio (Pilotage SLF), San Pedro, Laguna 11. Morong, Rizal 12. Sitio Lukutan, Brgy. San Isidro, Rodriguez (Montalban), Rizal (ISWIMS) 13. Brgy. Pintong Bukawe, San Mateo, Rizal (SMSLFDC) On or before June 30, 2011, the MMDA and the seventeen (17) LGUs in Metro Manila are ordered to jointly submit a report on the average amount of garbage collected monthly per district in all the cities in Metro Manila from January 2009 up to December 31, 2010 vis--vis the average amount of garbage disposed monthly in landfills and dumpsites. In its quarterly report for the last quarter of 2010 and thereafter, MMDA shall report on the apprehensions for violations of the penal provisions of RA 9003, RA 9275 and other laws on pollution for the said period. On or before June 30, 2011, the DPWH and the LGUs in Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan shall submit the names and addresses of the informal settlers in their respective areas who, as of September 30, 2010, own or occupy houses, structures, constructions, and other encroachments built along the MeycauayanMarilao-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 breach of RA 7279 and other applicable laws. On or before June 30, 2011, the DPWH and the aforesaid LGUs shall jointly submit their plan for the removal of said informal settlers and the demolition of the aforesaid structures, constructions and encroachments, as well as the completion dates for such activities which shall be implemented not later than December 31, 2012. (9) The Department of Health (DOH) shall submit to the Court on or before June 30, 2011 the names and addresses of the owners of septic and sludge companies including those that do not have the proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks. The DOH shall implement rules and regulations on Environmental Sanitation Clearances and shall require companies to procure a license to operate from the DOH. The DOH and DENR-Environmental Management Bureau shall develop a toxic and hazardous waste management system by June 30, 2011 which will implement segregation of hospital/toxic/hazardous wastes and prevent mixing with municipal solid waste.
On or before June 30, 2011, the DOH shall submit a plan of action to ensure that the said companies have proper disposal facilities and the completion dates of compliance.1avvphi1 (10) The Department of Education (DepEd) shall submit to the Court on or before May 31, 2011 a report on the specific subjects on pollution prevention, waste management, environmental protection, environmental laws and the like that it has integrated into the school curricula in all levels for the school year 2011-2012. On or before June 30, 2011, the DepEd shall also submit its plan of action to ensure compliance of all the schools under its supervision with respect to the integration of the aforementioned subjects in the school curricula which shall be fully implemented by June 30, 2012. (11) All the agencies are required to submit their quarterly reports electronically using the forms below. The agencies may add other key performance indicators that they have identified. SO ORDERED.

Orig Cases

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Orig Cases

Încărcat de

Drepturi de autor:

Formate disponibile

HUMAN RIGHTS LAW Original Cases Title of the Case - Facts Ruling Relevant Consti Provision

12 NOV 90 24 JAN 90 16 APR 90 15 OCT 88 2 JUL 92 4 JAN 91 15 JAN 91 5 NOV 90

15 FEB 93 22 FEB 93 22 FEB 93 8 FEB 93 15 FEB 93 1 FEB 93 22 JAN 93 24 FEB 93

22 AUG 93 22 AUG 93 8 AUG 93 15 AUG 93 1 AUG 93 22 JUL 93 24 AUG 93

22 FEB 93 15 FEB 93 31 JUL 93[8] 15 JUN 90 6 AUG 92 8 MAY 92 2 FEB 90

22 AUG 93 15 AUG 93 1 AUG 93 21 NOV 93 12 OCT 93 10 NOV 93 15 JAN 94 10 NOV 93

7 NOV 91 28 OCT 91 19 DEC 90 26 JUN 90 15 OCT 88 6 SEPT 90

3 NOV 93 27 DEC 93 3 DEC 93 10 DEC 93 6 FEB 94 30 NOV 93

30 MAY 93 10 FEB 93 24 FEB 93

10 AUG 93 24 AUG 93 4 FEB 94

27 JUL 90 12 NOV 90 6 JUN 92 23 APR 90 20 APR 89 3 JUN 91 12 MAR 90

17 NOV 93 7 DEC 93 12 OCT 93 29 OCT 93 2 DEC 93 FEB 94 [SIC] 13 MAR 94

S-ar putea să vă placă și