CAYETANO vs.

MONSOD

6/19/2012 1:18:00 AM

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 100113 September 3, 1991 RENATO CAYETANO, petitioner, vs. CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents. Renato L. Cayetano for and in his own behalf. Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner. PARAS, J.:p We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the Court's decision in this case would indubitably have a profound effect on the political aspect of our national existence. The 1987 Constitution provides in Section 1 (1), Article IX-C: There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding -elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis supplied) The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides: There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age and holders of a college degree. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.' (Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an appointive office. Black defines "practice of law" as: The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law. An attorney engages in the practice of law by maintaining an office where he is held out to be-an attorney, using a letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing and collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.) The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken,129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law when he: ... for valuable consideration engages in the business of advising person, firms, associations or corporations as to their rights under the law, or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capacity performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852) This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated: The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and

proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in mattersconnected with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied) Practice of law under modem conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours) The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy, counselling and public service.

One may be a practicing attorney in following any line of employment in the profession. If what he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their profession, and he follows some one or more lines of employment such as this he is a practicing attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312) Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill." (111 ALR 23) The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice of law." MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our review of the provisions on the Commission on Audit. May I be allowed to make a very brief statement? THE PRESIDING OFFICER (Mr. Jamir). The Commissioner will please proceed. MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others, the qualifications provided for by Section I is that "They must be Members of the Philippine Bar" I am quoting from the provision "who have been engaged in the practice of law for at least ten years". To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the COA or Commission on Audit, we would like to make the clarification that this provision on qualifications regarding members of the Bar does not necessarily refer or involve actual practice of law outside the COA We have to interpret this to mean that as long as the lawyers who are employed in the COA are using their legal knowledge or legal talent in their respective work within COA, then they are qualified to be considered for appointment as members or commissioners, even chairman, of the Commission on Audit. This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important to take it up on the floor so that this interpretation may be made available whenever this provision on the

qualifications as regards members of the Philippine Bar engaging in the practice of law for at least ten years is taken up. MR. OPLE. Will Commissioner Foz yield to just one question. MR. FOZ. Yes, Mr. Presiding Officer. MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a law practice that is set forth in the Article on the Commission on Audit? MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve legal work; it will involve legal work. And, therefore, lawyers who are employed in COA now would have the necessary qualifications in accordance with the Provision on qualifications under our provisions on the Commission on Audit. And, therefore, the answer is yes. MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law. MR. FOZ. Yes, Mr. Presiding Officer. MR. OPLE. Thank you. ... ( Emphasis supplied) Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two Commissioners of the Commission on Audit (COA) should either be certified public accountants with not less than ten years of auditing practice, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (emphasis supplied) Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer." Today, although many lawyers do not engage in private practice, it is still a fact that the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15). At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or organization engaged in the business of delivering legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is usually a partnership and members of the firm are the partners. Some firms may be organized as professional corporations and the members called shareholders. In either case, the members of the firm are the experienced attorneys. In most firms, there are younger or more inexperienced salaried attorneyscalled "associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as the performance of any acts . . . in or out of court, commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable.(Wolfram, op. cit.). The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large percentage spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role colors much of both the public image and the self perception of the legal profession. (Ibid.). In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a business counselor in this wise: "Even today, there are still uninformed laymen whose concept of an attorney is one who principally tries cases before the courts. The members of the bench and bar and the informed laymen such as businessmen, know that in most developed societies today, substantially more legal work is transacted in law offices than in the courtrooms. General practitioners of law who do both litigation and nonlitigation work also know that in most cases they find themselves spending more time doing what [is] loosely desccribe[d] as business counseling than in trying cases. The business lawyer has been described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4). In the course of a working day the average general practitioner wig engage in a number of legal tasks, each involving different legal doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties.

Even the increasing numbers of lawyers in specialized practice wig usually perform at least some legal services outside their specialty. And even within a narrow specialty such as tax practice, a lawyer will shift from one legal task or role such as advice-giving to an importantly different one such as representing a client before an administrative agency. (Wolfram, supra, p. 687). By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types a litigator who specializes in this work to the exclusion of much else. Instead, the work will require the lawyer to have mastered the full range of traditional lawyer skills of client counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new skills of evaluation and mediation are both effective for many clients and a source of employment. (Ibid.). Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at least theoretically, so as to remove from it some of the salient features of adversarial litigation. Of these special roles, the most prominent is that of prosecutor. In some lawyers' work the constraints are imposed both by the nature of the client and by the way in which the lawyer is organized into a social unit to perform that work. The most common of these roles are those of corporate practice and government legal service. (Ibid.). In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate law practice, a departure from the traditional concept of practice of law. We are experiencing today what truly may be called a revolutionary transformation in corporate law practice. Lawyers and other professional groups, in particular those members participating in various legal-policy decisional contexts, are finding that understanding the major emerging trends in corporation law is indispensable to intelligent decision-making. Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature and implications of the corporate law research function accompanied by an accelerating rate of information accumulation. The recognition of the need for such improved corporate legal policy formulation, particularly "model-making" and "contingency planning," has impressed upon us the inadequacy of traditional procedures in many decisional contexts.

In a complex legal problem the mass of information to be processed, the sorting and weighing of significant conditional factors, the appraisal of major trends, the necessity of estimating the consequences of given courses of action, and the need for fast decision and response in situations of acute danger have prompted the use of sophisticated concepts of information flow theory, operational analysis, automatic data processing, and electronic computing equipment. Understandably, an improved decisional structure must stress the predictive component of the policy-making process, wherein a "model", of the decisional context or a segment thereof is developed to test projected alternative courses of action in terms of futuristic effects flowing therefrom. Although members of the legal profession are regularly engaged in predicting and projecting the trends of the law, the subject of corporate finance law has received relatively little organized and formalized attention in the philosophy of advancing corporate legal education. Nonetheless, a cross-disciplinary approach to legal research has become a vital necessity. Certainly, the general orientation for productive contributions by those trained primarily in the law can be improved through an early introduction to multi-variable decisional context and the various approaches for handling such problems. Lawyers, particularly with either a master's or doctorate degree in business administration or management, functioning at the legal policy level of decision-making now have some appreciation for the concepts and analytical techniques of other professions which are currently engaged in similar types of complex decision-making. Truth to tell, many situations involving corporate finance problems would require the services of an astute attorney because of the complex legal implications that arise from each and every necessary step in securing and maintaining the business issue raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4). In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed of the tycoons and magnates of business and industry. Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate lawyer does. For one, the number of attorneys employed by a single corporation will vary with the size and type

of the corporation. Many smaller and some large corporations farm out all their legal problems to private law firms. Many others have in-house counsel only for certain matters. Other corporation have a staff large enough to handle most legal problems in-house. A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation. His areas of concern or jurisdiction may include, inter alia: corporate legal research, tax laws research, acting

VPP vs. VILLANUEVA

6/19/2012 1:18:00 AM

EN BANC G.R. No. L-19450 May 27, 1965 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, -versusSIMPLICIO VILLANUEVA, defendant-appellant. Office of the Solicitor General for plaintiff-appellee. Magno T. Buese for defendant-appellant. PAREDES, J.: On September 4, 1959, the Chief of Police of Alaminos, Laguna, charged Simplicio Villanueva with the Crime of Malicious Mischief before the Justice of the Peace Court of said municipality. Said accused was represented by counsel de officio but later on replaced by counsel de parte. The complainant in the same case was represented by City Attorney Ariston Fule of San Pablo City, having entered his appearance as private prosecutor, after securing the permission of the Secretary of Justice. The condition of his appearance as such, was that every time he would appear at the trial of the case, he would be considered on official leave of absence, and that he would not receive any payment for his services. The appearance of City Attorney Fule as private prosecutor was questioned by the counsel for the accused, invoking the case of Aquino, et al. vs. Blanco, et al., L-1532, Nov. 28, 1947, wherein it was ruled that "when an attorney had been appointed to the position of Assistant Provincial Fiscal or City Fiscal and therein qualified, by operation of law, he ceased to engage in private law practice." Counsel then argued that the JP Court in entertaining the appearance of City Attorney Fule in the case is a violation of the above ruling. On December 17, 1960 the JP issued an order sustaining the legality of the appearance of City Attorney Fule. Under date of January 4, 1961, counsel for the accused presented a "Motion to Inhibit Fiscal Fule from Acting as Private Prosecutor in this Case," this time invoking Section 32, Rule 27, now Sec. 35, Rule 138, Revised Rules of Court, which bars certain attorneys from practicing. Counsel claims that City

Attorney Fule falls under this limitation. The JP Court ruled on the motion by upholding the right of Fule to appear and further stating that he (Fule) was not actually enagaged in private law practice. This Order was appealed to the CFI of Laguna, presided by the Hon. Hilarion U. Jarencio, which rendered judgment on December 20, 1961, the pertinent portions of which read: The present case is one for malicious mischief. There being no reservation by the offended party of the civil liability, the civil action was deemed impliedly instituted with the criminal action. The offended party had, therefore, the right to intervene in the case and be represented by a legal counsel because of her interest in the civil liability of the accused. Sec. 31, Rule 127 of the Rules of Court provides that in the court of a justice of the peace a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. Assistant City Attorney Fule appeared in the Justice of the Peace Court as an agent or friend of the offended party. It does not appear that he was being paid for his services or that his appearance was in a professional capacity. As Assistant City Attorney of San Pablo he had no control or intervention whatsoever in the prosecution of crimes committed in the municipality of Alaminos, Laguna, because the prosecution of criminal cases coming from Alaminos are handled by the Office of the Provincial Fiscal and not by the City Attornev of San Pablo. There could be no possible conflict in the duties of Assistant City Attorney Fule as Assistant City Attorney of San Pablo and as private prosecutor in this criminal case. On the other hand, as already pointed out, the offended party in this criminal case had a right to be represented by an agent or a friend to protect her rights in the civil action which was impliedly instituted together with the criminal action. In view of the foregoing, this Court holds that Asst. City Attorney Ariston D. Fule may appear before the Justice of the Peace Court of Alaminos, Laguna as private prosecutor in this criminal case as an agent or a friend of the offended party. WHEREFORE, the appeal from the order of the Justice of the Peace Court of Alaminos, Laguna, allowing the apprearance of Ariston D. Fule as private prosecutor is dismissed, without costs. The above decision is the subject of the instant proceeding. The appeal should be dismissed, for patently being without merits.

Aside from the considerations advanced by the learned trial judge, heretofore reproduced, and which we consider plausible, the fallacy of the theory of defense counsel lies in his confused interpretation of Section 32 of Rule 127 (now Sec. 35, Rule 138, Revised Rules), which provides that "no judge or other official or employee of the superior courts or of the office of the Solicitor General, shall engage in private practice as a member of the bar or give professional advice to clients." He claims that City Attorney Fule, in appearing as private prosecutor in the case was engaging in private practice. We believe that the isolated appearance of City Attorney Fule did not constitute private practice within the meaning and contemplation of the Rules. Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public, as customarily and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644, 647). The appearance as counsel on one occasion is not conclusive as determinative of engagement in the private practice of law. The following observation of the Solicitor General is noteworthy: Essentially, the word private practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for a compensation, as a source of his livelihood or in consideration of his said services. For one thing, it has never been refuted that City Attorney Fule had been given permission by his immediate superior, the Secretary of Justice, to represent the complainant in the case at bar, who is a relative. CONFORMABLY WITH ALL THE FOREGOING, the decision appealed from should be, as it is hereby affirmed, in all respects, with costs against appellant.. Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur. Bautista Angelo, J., took no part.

University of Santo Tomas, Faculty of Civil Law 2010 All Rights Reserved.

ISAAC vs. MENDOZA

6/19/2012 1:18:00 AM

EN BANC G.R. No. L-2820 June 21, 1951 FAUSTO ISAAC, plaintiff-appellant, -versusLEOPOLDO MENDOZA, defendant-appellee. Cea, Blancaflor and Cea for appellant. Jose M. Peas for appellee. BENGZON, J.: For the amount of four hundred and fifty pesos, Japanese currency, Fausto Isaac, plaintiff, sold to Leopoldo Mendoza, defendant, a parcel of land in Pili, Camarines Sur, reserving the right to repurchase within four years. The sale took the place in February 1944. After liberation, the seller offered to redeem, but defendant objected, saying the redemption was premature. Hence this litigation instituted in the court of first instance of said province, in February 1946, to compel re-transfer. After having been duly summoned, the defendant failed to answer. Consequently, upon plaintiff's motion, he was defaulted by order of May 10, 1947. Thereafter, i.e. on September 23, 1947, considering the plaintiff's evidence the court rendered judgment requiring the defendant to execute a deed of re-sale of the land, to receive the amount of P90 Philippine currency, which Fausto Isaac had consigned in court, to pay damages in the sum of P95. On December 9, 1947 Leopoldo Mendoza submitted a petition to set aside the judgment invoking accident, mistake, or excusable negligence. Opposed by plaintiff, the petition was denied. Wherefore defendant appealed directly to this court. Basis of defendant's petition was the allegation that as his attorney Jorge C. Briones had not received notice of the court's denial of his motion to dismiss the complaint, he had reason to believe the time to answer had not expired. It appears from the record that, duly summoned, defendant through Attorney Briones filed a motion to dismiss, which was overruled by order of

April 8, 1946. At the bottom of that order there is notation that had been furnished Attorney Briones by ordinary mail. On February 8, 1947, the plaintiff filed his motion for default, asserting that, defendant's motion to dismiss had been denied and that so far, defendant had interposed no answer. On February 15, 1947 the court issued an auto suspending consideration of plaintiff's motion and giving the defendant a period of ten days within which to reply thereto, if so desired. Copy of this directive was sent by registered mail to Attorney Briones, but the latter "refused to claim the registered letter despite the notices given him by the postmaster". And according to an affidavit submitted to the court, Attorney Peas for the plaintiff, had again and gain reminded Briones that the time was come for the answer. Apprised of the foregoing circumstances, the court of first instance denied the petition to set aside. We think such denial was entirely proper. According to the rules, Attorney Briones is deemed to have received the copy of the auto of February 15, 1947 which he declined to accept from the mails (Rule 27 section 8). That order was sufficient to advise him of the rejection of his previous motion of dismissal, supposing he had not actually received the copy of the order of April 8, 1946, which had been forwarded to him by ordinary mail. The appellant insist here that "the record fails to show a conclusive evidence that Atty. Jorge C. Briones . . . was notified". This is refuted by the above account of the facts and of the governing principles. It is remarkable that, to meet the conclusions therein set forth, defendant has not introduced any sworn statement of Attorney Briones. In connection with the argument that defendant should not suffer for his lawyer's shortcoming, it should be explained that the client is bound by the acts, even mistakes of his counsel in realm of procedural technique1; but if the client is prejudiced by the attorney's negligence or misconduct he may recover damages.2 Another point, which is equally decisive. Unless the appellant has filed a motion to set aside the order of default, on any of the grounds enumerated in Rule 38, he has no standing in court nor the right to appeal.3 Examining appellant's motion of December 9, 1947 we observe that he merely requested for the annulment of the decision rendered after his default (September 23, 1947) without praying for the revocation of the order of May

10, 1947 declaring him to be default. But granting, for the sake of argument that the aforesaid pleading impliedly included the second prayer, we are met by the insuperable objection that the petition was too late. Because filed beyond the six-month period within which applications for relief under Rule 38 may be entertained. From May 10 to December 9 seven months had elapsed. Wherefore, this appeal being without merit, we affirm the order of the trial judge denying the petition to set aside. With costs. Paras, C.J., Feria, Pablo, Padilla, Tuason, Montemayor, Reyes, Jugo and Bautista Angelo, JJ., concur.

Endnotes 1 Rule 127 sec. 21 U.S. Umali, 15 Phil. 33 Montes vs. Court of First Instance, 48 Phil., 640. 2 In re Filart, 40 Phil., 205. 3 Lim Toco vs. Go Fay 45 Off Gaz., 3350; 80 Phil., 166.

University of Santo Tomas, Faculty of Civil Law 2010 All Rights Reserved.

SMFH vs. NLRC

Republic of the Philippines SUPREME COURT Manila EN BANC

6/19/2012 1:18:00 AM

G.R. No. 130866 September 16, 1998 ST. MARTIN FUNERAL HOME, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and BIENVENIDO ARICAYOS, respondents. REGALADO, J.: The present petition for certiorari stemmed from a complaint for illegal dismissal filed by herein private respondent before the National Labor Relations Commission (NLRC), Regional Arbitration Branch No. III, in San Fernando, Pampanga. Private respondent alleges that he started working as Operations Manager of petitioner St. Martin Funeral Home on February 6, 1995. However, there was no contract of employment executed between him and petitioner nor was his name included in the semi-monthly payroll. On January 22, 1996, he was dismissed from his employment for allegedly misappropriating P38,000.00 which was intended for payment by petitioner of its value added tax (VAT) to the Bureau of Internal Revenue (BIR). 1 Petitioner on the other hand claims that private respondent was not its employee but only the uncle of Amelita Malabed, the owner of petitioner St. Martin's Funeral Home. Sometime in 1995, private respondent, who was formerly working as an overseas contract worker, asked for financial assistance from the mother of Amelita. Since then, as an indication of gratitude, private respondent voluntarily helped the mother of Amelita in overseeing the business. In January 1996, the mother of Amelita passed away, so the latter then took over the management of the business. She then discovered that there were arrears in the payment of taxes and other government fees, although the records purported to show that the same were already paid. Amelita then made some changes in the business operation and private respondent and his wife were no longer allowed to participate in the management thereof. As

a consequence, the latter filed a complaint charging that petitioner had illegally terminated his employment. 2 Based on the position papers of the parties, the labor arbiter rendered a decision in favor of petitioner on October 25, 1996 declaring that no employer-employee relationship existed between the parties and, therefore, his office had no jurisdiction over the case. 3 Not satisfied with the said decision, private respondent appealed to the NLRC contending that the labor arbiter erred (1) in not giving credence to the evidence submitted by him; (2) in holding that he worked as a "volunteer" and not as an employee of St. Martin Funeral Home from February 6, 1995 to January 23, 1996, or a period of about one year; and (3) in ruling that there was no employer-employee relationship between him and petitioner. 4 On June 13, 1997, the NLRC rendered a resolution setting aside the questioned decision and remanding the case to the labor arbiter for immediate appropriate proceedings. 5 Petitioner then filed a motion for reconsideration which was denied by the NLRC in its resolution dated August 18, 1997 for lack of merit, 6 hence the present petition alleging that the NLRC committed grave abuse of discretion. 7 Before proceeding further into the merits of the case at bar, the Court feels that it is now exigent and opportune to reexamine the functional validity and systemic practicability of the mode of judicial review it has long adopted and still follows with respect to decisions of the NLRC. The increasing number of labor disputes that find their way to this Court and the legislative changes introduced over the years into the provisions of Presidential Decree (P.D.) No. 442 (The Labor Code of the Philippines and Batas Pambansa Blg. (B.P. No.) 129 (The Judiciary Reorganization Act of 1980) now stridently call for and warrant a reassessment of that procedural aspect. We prefatorily delve into the legal history of the NLRC. It was first established in the Department of Labor by P.D. No. 21 on October 14, 1972, and its decisions were expressly declared to be appealable to the Secretary of Labor and, ultimately, to the President of the Philippines. On May 1, 1974, P.D. No. 442 enacted the Labor Code of the Philippines, the same to take effect six months after its promulgation. 8 Created and regulated therein is the present NLRC which was attached to the Department of Labor and Employment for program and policy coordination only. 9 Initially, Article 302 (now, Article 223) thereof also granted an

aggrieved party the remedy of appeal from the decision of the NLRC to the Secretary of Labor, but P.D. No. 1391 subsequently amended said provision and abolished such appeals. No appellate review has since then been provided for. Thus, to repeat, under the present state of the law, there is no provision for appeals from the decision of the NLRC. 10 The present Section 223, as last amended by Section 12 of R.A. No. 6715, instead merely provides that the Commission shall decide all cases within twenty days from receipt of the answer of the appellee, and that such decision shall be final and executory after ten calendar days from receipt thereof by the parties. When the issue was raised in an early case on the argument that this Court has no jurisdiction to review the decisions of the NLRC, and formerly of the Secretary of Labor, since there is no legal provision for appellate review thereof, the Court nevertheless rejected that thesis. It held that there is an underlying power of the courts to scrutinize the acts of such agencies on questions of law and jurisdiction even though no right of review is given by statute; that the purpose of judicial review is to keep the administrative agency within its jurisdiction and protect the substantial rights of the parties; and that it is that part of the checks and balances which restricts the separation of powers and forestalls arbitrary and unjust adjudications. 11 Pursuant to such ruling, and as sanctioned by subsequent decisions of this Court, the remedy of the aggrieved party is to timely file a motion for reconsideration as a precondition for any further or subsequent remedy, 12 and then seasonably avail of the special civil action of certiorari under Rule 65, 13 for which said Rule has now fixed the reglementary period of sixty days from notice of the decision. Curiously, although the 10-day period for finality of the decision of the NLRC may already have lapsed as contemplated in Section 223 of the Labor Code, it has been held that this Court may still take cognizance of the petition for certiorari on jurisdictional and due process considerations if filed within the reglementary period under Rule 65. 14 Turning now to the matter of judicial review of NLRC decisions, B.P. No. 129 originally provided as follows: Sec. 9. Jurisdiction. The Intermediate Appellate Court shall exercise:

(1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction; (2) Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; and (3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards, or commissions, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948. The Intermediate Appellate Court shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings. These provisions shall not apply to decisions and interlocutory orders issued under the Labor Code of the Philippines and by the Central Board of Assessment Appeals. 15 Subsequently, and as it presently reads, this provision was amended by R.A. No. 7902 effective March 18, 1995, to wit: Sec. 9. Jurisdiction. The Court of Appeals shall exercise: (1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction; (2) Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; and (3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions, including the Securities and Exchange Commission, the Social Security Commission, the Employees Compensation Commission and the Civil Service Commission, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the Labor Code of the Philippines under Presidential Decree No. 442, as amended, the provisions of this Act, and of

subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948. The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings. Trials or hearings in the Court of Appeals must be continuous and must be completed within, three (3) months, unless extended by the Chief Justice. It will readily be observed that, aside from the change in the name of the lower appellate court, 16 the following amendments of the original provisions of Section 9 of B.P. No. 129 were effected by R.A. No. 7902, viz.: 1. The last paragraph which excluded its application to the Labor Code of the Philippines and the Central Board of Assessment Appeals was deleted and replaced by a new paragraph granting the Court of Appeals limited powers to conduct trials and hearings in cases within its jurisdiction. 2. The reference to the Labor Code in that last paragraph was transposed to paragraph (3) of the section, such that the original exclusionary clause therein now provides "except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the Labor Code of the Philippines under Presidential Decree No. 442, as amended, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948." (Emphasis supplied). 3. Contrarily, however, specifically added to and included among the quasijudicial agencies over which the Court of Appeals shall have exclusive appellate jurisdiction are the Securities and Exchange Commission, the Social Security Commission, the Employees Compensation Commission and the Civil Service Commission. This, then, brings us to a somewhat perplexing impass, both in point of purpose and terminology. As earlier explained, our mode of judicial review over decisions of the NLRC has for some time now been understood to be by a petition for certiorari under Rule 65 of the Rules of Court. This is, of course, a special original action limited to the resolution of jurisdictional issues, that is, lack or excess of jurisdiction and, in almost all cases that

have been brought to us, grave abuse of discretion amounting to lack of jurisdiction. It will, however, be noted that paragraph (3), Section 9 of B.P. No. 129 now grants exclusive appellate jurisdiction to the Court of Appeals over all final adjudications of the Regional Trial Courts and the quasi-judicial agencies generally or specifically referred to therein except, among others, "those falling within the appellate jurisdiction of the Supreme Court in accordance with . . . the Labor Code of the Philippines under Presidential Decree No. 442, as amended, . . . ." This would necessarily contradict what has been ruled and said all along that appeal does not lie from decisions of the NLRC. 17 Yet, under such excepting clause literally construed, the appeal from the NLRC cannot be brought to the Court of Appeals, but to this Court by necessary implication. The same exceptive clause further confuses the situation by declaring that the Court of Appeals has no appellate jurisdiction over decisions falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of B.P. No. 129, and those specified cases in Section 17 of the Judiciary Act of 1948. These cases can, of course, be properly excluded from the exclusive appellate jurisdiction of the Court of Appeals. However, because of the aforementioned amendment by transposition, also supposedly excluded are cases falling within the appellate jurisdiction of the Supreme Court in accordance with the Labor Code. This is illogical and impracticable, and Congress could not have intended that procedural gaffe, since there are no cases in the Labor Code the decisions, resolutions, orders or awards wherein are within the appellate jurisdiction of the Supreme Court or of any other court for that matter. A review of the legislative records on the antecedents of R.A. No. 7902 persuades us that there may have been an oversight in the course of the deliberations on the said Act or an imprecision in the terminology used therein. In fine, Congress did intend to provide for judicial review of the adjudications of the NLRC in labor cases by the Supreme Court, but there was an inaccuracy in the term used for the intended mode of review. This conclusion which we have reluctantly but prudently arrived at has been drawn from the considerations extant in the records of Congress, more particularly on Senate Bill No. 1495 and the Reference Committee Report on S. No. 1495/H. No. 10452. 18

In sponsoring Senate Bill No. 1495, Senator Raul S. Roco delivered his sponsorship speech 19 from which we reproduce the following excerpts: The Judiciary Reorganization Act, Mr. President, Batas Pambansa Blg. 129, reorganized the Court of Appeals and at the same time expanded its jurisdiction and powers. Among others, its appellate jurisdiction was expanded to cover not only final judgment of Regional Trial Courts, but also all final judgment(s), decisions, resolutions, orders or awards of quasijudicial agencies, instrumentalities, boards and commissions, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of BP Blg. 129 and of subparagraph 1 of the third paragraph and subparagraph 4 of Section 17 of the Judiciary Act of 1948. Mr. President, the purpose of the law is to ease the workload of the Supreme Court by the transfer of some of its burden of review of factual issues to the Court of Appeals. However, whatever benefits that can be derived from the expansion of the appellate jurisdiction of the Court of Appeals was cut short by the last paragraph of Section 9 of Batas Pambansa Blg. 129 which excludes from its coverage the "decisions and interlocutory orders issued under the Labor Code of the Philippines and by the Central Board of Assessment Appeals. Among the highest number of cases that are brought up to the Supreme Court are labor cases. Hence, Senate Bill No. 1495 seeks to eliminate the exceptions enumerated in Section 9 and, additionally, extends the coverage of appellate review of the Court of Appeals in the decision(s) of the Securities and Exchange Commission, the Social Security Commission, and the Employees Compensation Commission to reduce the number of cases elevated to the Supreme Court. (Emphases and corrections ours) xxx xxx xxx Senate Bill No. 1495 authored by our distinguished Colleague from Laguna provides the ideal situation of drastically reducing the workload of the Supreme Court without depriving the litigants of the privilege of review by an appellate tribunal. In closing, allow me to quote the observations of former Chief Justice Teehankee in 1986 in the Annual Report of the Supreme Court: . . . Amendatory legislation is suggested so as to relieve the Supreme Court of the burden of reviewing these cases which present no important issues

involved beyond the particular fact and the parties involved, so that the Supreme Court may wholly devote its time to cases of public interest in the discharge of its mandated task as the guardian of the Constitution and the guarantor of the people's basic rights and additional task expressly vested on it now "to determine whether or not there has been a grave abuse of discretion amounting to lack of jurisdiction on the part of any branch or instrumentality of the Government. We used to have 500,000 cases pending all over the land, Mr. President. It has been cut down to 300,000 cases some five years ago. I understand we are now back to 400,000 cases. Unless we distribute the work of the appellate courts, we shall continue to mount and add to the number of cases pending. In view of the foregoing, Mr. President, and by virtue of all the reasons we have submitted, the Committee on Justice and Human Rights requests the support and collegial approval of our Chamber. xxx xxx xxx Surprisingly, however, in a subsequent session, the following Committee Amendment was introduced by the said sponsor and the following proceedings transpired: 20 Senator Roco. On page 2, line 5, after the line "Supreme Court in accordance with the Constitution," add the phrase "THE LABOR CODE OF THE PHILIPPINES UNDER P.D. 442, AS AMENDED." So that it becomes clear, Mr. President, that issues arising from the Labor Code will still be appealable to the Supreme Court. The President. Is there any objection? (Silence) Hearing none, the amendment is approved. Senator Roco. On the same page, we move that lines 25 to 30 be deleted. This was also discussed with our Colleagues in the House of Representatives and as we understand it, as approved in the House, this was also deleted, Mr. President. The President. Is there any objection? (Silence) Hearing none, the amendment is approved. Senator Roco. There are no further Committee amendments, Mr. President. Senator Romulo. Mr. President, I move that we close the period of Committee amendments.

The President. Is there any objection? (Silence) Hearing none, the amendment is approved. (Emphasis supplied). xxx xxx xxx Thereafter, since there were no individual amendments, Senate Bill No. 1495 was passed on second reading and being a certified bill, its unanimous approval on third reading followed. 21 The Conference Committee Report on Senate Bill No. 1495 and House Bill No. 10452, having theretofore been approved by the House of Representatives, the same was likewise approved by the Senate on February 20, 1995, 22 inclusive of the dubious formulation on appeals to the Supreme Court earlier discussed. The Court is, therefore, of the considered opinion that ever since appeals from the NLRC to the Supreme Court were eliminated, the legislative intendment was that the special civil action of certiorari was and still is the proper vehicle for judicial review of decisions of the NLRC. The use of the word "appeal" in relation thereto and in the instances we have noted could have been a lapsus plumae because appeals by certiorari and the original action for certiorari are both modes of judicial review addressed to the appellate courts. The important distinction between them, however, and with which the Court is particularly concerned here is that the special civil action of certiorari is within the concurrent original jurisdiction of this Court and the Court of Appeals; 23 whereas to indulge in the assumption that appeals by certiorari to the Supreme Court are allowed would not subserve, but would subvert, the intention of Congress as expressed in the sponsorship speech on Senate Bill No. 1495. Incidentally, it was noted by the sponsor therein that some quarters were of the opinion that recourse from the NLRC to the Court of Appeals as an initial step in the process of judicial review would be circuitous and would prolong the proceedings. On the contrary, as he commendably and realistically emphasized, that procedure would be advantageous to the aggrieved party on this reasoning: On the other hand, Mr. President, to allow these cases to be appealed to the Court of Appeals would give litigants the advantage to have all the evidence on record be reexamined and reweighed after which the findings of facts and conclusions of said bodies are correspondingly affirmed, modified or reversed.

Under such guarantee, the Supreme Court can then apply strictly the axiom that factual findings of the Court of Appeals are final and may not be reversed on appeal to the Supreme Court. A perusal of the records will reveal appeals which are factual in nature and may, therefore, be dismissed outright by minute resolutions. 24 While we do not wish to intrude into the Congressional sphere on the matter of the wisdom of a law, on this score we add the further observations that there is a growing number of labor cases being elevated to this Court which, not being a trier of fact, has at times been constrained to remand the case to the NLRC for resolution of unclear or ambiguous factual findings; that the Court of Appeals is procedurally equipped for that purpose, aside from the increased number of its component divisions; and that there is undeniably an imperative need for expeditious action on labor cases as a major aspect of constitutional protection to labor. Therefore, all references in the amended Section 9 of B.P. No. 129 to supposed appeals from the NLRC to the Supreme Court are interpreted and hereby declared to mean and refer to petitions for certiorari under Rule 65. Consequently, all such petitions should hence forth be initially filed in the Court of Appeals in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired. Apropos to this directive that resort to the higher courts should be made in accordance with their hierarchical order, this pronouncement in Santiago vs. Vasquez, et al. 25 should be taken into account: One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only because of the imposition upon the precious time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it

unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction. WHEREFORE, under the foregoing premises, the instant petition for certiorari is hereby REMANDED, and all pertinent records thereof ordered to be FORWARDED, to the Court of Appeals for appropriate action and disposition consistent with the views and ruling herein set forth, without pronouncement as to costs. SO ORDERED. Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban Martinez, Quisumbing and Purisima, JJ., concur. Footnotes 1 Rollo, 17. 2 Ibid., 18-19. 3 Ibid., 19. 4 Ibid., 16. 5 Ibid., 21. 6 Ibid., 23-24. 7 Ibid., 6. 8 Art. 2. 9 Art. 213. 10 While Art. 223 bears the epigraph of "Appeal," it actually refers only to decisions, awards, or orders of the labor arbiter which shall be final and executory unless appealed to the NLRC by any or both parties within ten calendar days from receipt thereof. 11 San Miguel Corporation vs. Secretary of Labor, et al., G.R. No. L-39195, May 15, 1975, 64 SCRA 56; Scott vs. Inciong, et al. G.R. No. L-38868, December 29, 1975, 68 SCRA 473; Bordeos, et al., vs. NLRC, et al., G.R. Nos. 115314-23, September 26, 1996, 262 SCRA 424. 12 Zapata vs. NLRC, et al., G.R. No. 77827, July 5, 1989, 175 SCRA 56. 13 See, for instance , Pure Foods Corporation vs. NLRC, et al., G.R. No. 78591, March 21, 1989, 171 SCRA 415. 14 Mantrade, etc. vs. Bacungan, et al., G.R. No. L-48437, September 30, 1986, 144 SCRA 511. 15 75 O.G. 4781, August 29, 1983.

16 Executive Order No. 33 restored the name of the Court of Appeals, in lieu of the Intermediate Appellate Court, effective July 28, 1986. 17 The different modes of appeal, that is, by writ of error (Rule 41), petition for review (Rules 42 and 43), and petition for review on certiorari (Rule 45) obviously cannot be availed of because there is no provision appellate review of NLRC decisions in P.D. No. 442, as amended. 18 All Act Expanding the Jurisdiction of the Court of Appeals, Amending for the Purpose Section 9 of Batas Pambansa Blg. 129, known as the Judiciary Reorganization Act of 1980. 19 Transcript of Session Proceedings (TSP). S. No. 1495, February 8, 1995, 31-36. 20 TSP, id., February 15, 1995, 18-19. 21 TSP, id., id., 19-21; Record of the Senate, Vol. V, No. 63, pp. 180-181. 22 TSP, id., February 20, 1995, pp. 42-43. 23 The Regional Trial Court also shares that concurrent jurisdiction but that cannot be considered with regard to the NLRC since they are of the same rank. 24 TSP, S. No. 1495, February 8, 1995, pp. 32-33. 25 G.R. Nos. 99289-90, January 27, 1993, 217 SCRA 633. See also Tano, et al. vs. Socrates. et al., G.R. No. 110249, August 21, 1997, 278 SCRA 155.

MANALO vs. GLORIA

Republic of the Philippines SUPREME COURT Manila EN BANC

6/19/2012 1:18:00 AM

G.R. No. 106692 September 1, 1994 MILA MANALO, petitioner, vs. RICARDO GLORIA, in his capacity as the Acting Secretary of Science and Technology, and PATRICIA STO. TOMAS, in her capacity as the Chairman of the Civil Service Commission, respondents. Irineo B. Orlino for petitioner. DAVIDE, JR., J.: This is a petition for "certiorari and mandamus" filed on 3 September 1992 urging us to render judgment: (1) Declaring the 1st Indorsement dated 14 December 1990 of the respondent Secretary of Science and Technology, (Annex "E" hereof), and Resolution No. 91-1036 of the respondent Civil Service Commission (Annex "G" hereof) null and void; (2) Ordering the respondent Secretary of Science and Technology to pay the back wages of the petitioner for the period from April 16, 1988, the date she was illegally dismissed, to June 14, 1989, the date she was reinstated; and (3) Ordering the respondent Secretary of Science and Technology to pay the petitioner the salary equivalent to the salary of a Planning Assistant from the time of her reinstatement and thenceforward. 1 In their comment filed by the Office of the Solicitor General for the respondents on 2 December 1992, the respondents claim that the petitioner received a copy of respondent Civil Service Commission's (CSC) Resolution No. 91-1036 of 29 August 1991 on 5 September 1991 and pray that the petition be dismissed because, on procedural grounds, it was filed out of time and the petitioner violated paragraph 4 of Revised Circular No. 1-88 and Circular No. 28-91; and, on substantive grounds, the decision in G.R. No. 81495 of 4 June 1990 2 cannot apply together since she is not a party therein. Moreover, her position was legally abolished, she did not appeal from the

abolition, and instead of joining her other co-employees in assailing the legality of their separation from the service, she requested appointment to a position comparable to her former position. Thus, she was appointed to the position of Clerk II on 15 May 1989, which she accepted without reservation. Indeed, the petitioner failed to comply with the aforesaid Circulars. She does not also deny that she received a copy of the challenged Resolution No. 91-1036 on 5 September 1991. Pursuant to Section 7, subdivision A (Common Provisions), Article IX of the Constitution, 3 the petitioner had only thirty days from 5 September 1991 within which to bring the said resolution to this Court via a petition for certiorari under Rule 65 of the Rules of Court. 4 The instant petition was filed only on 3 September 1992 or eleven months and twenty-eight days after her receipt of a copy of the challenged resolution, indisputably beyond the constitutionally mandated period. On this score alone, the petition must be dismissed. Even on its merits, the petition must likewise fail. The uncontroverted facts culled from the pleadings of the parties, as well as from our decision of 4 June 1990 in Mendoza vs. Quisumbing 5 and companion cases, render this conclusion inevitable. Before 16 April 1988, the petitioner held the position of planning Assistant in the Philippine Nuclear Research Institute (PNRI), an agency of the Department of Science and Technology (DOST), with an annual salary of P26,250.40. On 30 January 1987, the President of the Philippines issued E.O. No. 128 reorganizing the DOST. Section 21 thereof provides for the reorganization of the Philippine Atomic Energy Commission (PAEC) and the PNRI. Conformably therewith, PNRI was reorganized and a new staffing pattern or position structure, which abolished certain positions, was adopted. A list of employees who would be retained under the new position structure was posted in the PNRI premises. Those excluded were placed in a manpower pool for possible placements in other DOST agencies. Appointments under the new position structure were thereafter issued to the retained employees. Among the abolished positions was that of the petitioner. The petitioner, however, "made an appeal with the DOST/RAB to place her to any comparable position to which her qualification would fit," 6 which was

favorably acted upon by her appointment to the new position of Clerk II with an annual salary of P17,640.00 on 15 May 1989. 7 She accepted her appointment as Clerk II, a position she presently holds. In view of our Decision of 4 June 1990 in Mendoza vs. Quisumbing and more particularly of the companion case, G.R. No. 81495 (Arizabal vs. Leviste), wherein we held: 4) In G.R. No. 81495, the petition is DISMISSED. Except in the cases of those who have retired or opted to be phased out and who have received their separation and retirement benefits, the petitioners are ordered to retain the private respondents-employees in the reorganized department under the new staffing pattern with positions and salaries comparable or equivalent to their former positions but not lower than their former ranks and salaries. the petitioner (who was neither a party in G.R. No. 81495 nor in the case before the Regional Trial Court of Quezon City subject thereof) sent a letter to the Director of the PNRI, dated 3 September 1990, 8 requesting the payment of back salaries for the period commencing from the abolition of her office until she was appointed as Clerk II and the payment of salary "comparable or equivalent to her former position as Planning Assistant from the time she was phased out up to the present." The PNRI referred this request to the DOST on 12 November 1990.9 In a 1st Indorsement dated 14 December 1990, 10 the DOST denied the request because she was not a party in G.R. No. 81495 and because there was no finding under Section 9 of R.A. No. 6656 (Reorganization Law) that the petitioner was illegally terminated. On 4 March 1991, the petitioner, through counsel, sent a letter 11 to the public respondent CSC requesting that in view of the DOST denial of her request, the CSC should "order the PNRI to pay Ms. Manalo back wages during the period she was phased out up to her reinstatement to the lower position of Clerk II, and, in addition that she be paid the difference between the salary of a Planning Assistant and that of a Clerk II." In its Resolution No. 91-1036 of 29 August 1991, 12 the CSC denied the request because the petitioner was not a party in G.R. No. 81495, and although the position of Clerk II is admittedly lower in rank and salary than her previous position of Planning Assistant, upon her request after she had been phased out, she assumed the duties of Clerk II without reservation.

From these facts, it is clear that both the indorsement and the resolution were not issued with abuse, much less grave, of discretion. The petitioner was not compelled to accept the new position. Instead of questioning the new position structure or taking the other alternatives of either accepting separation pay or retiring from the service, she expressed preference for appointment to the new position, voluntarily accepted the appointment thereto, and assumed the new position without reservation. Reluctance or involuntariness in relation thereto is not asserted in her petition and in her letters of 3 September 1990 and 4 March 1991. The mandamus aspect of this case refers to the payment of the petitioner's (a) "back wages . . . for the period from April 16, 1988, the date she was illegally dismissed, to June 14, 1989, the date she was reinstated," and (b) "salary equivalent to the salary of a Planning Assistant from the time of her reinstatement and thenceforward." Mandamus under Rule 65 of the Rules of Court is a special civil action available to an aggrieved party when any tribunal, corporation, board, or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes a person from the use and enjoyment of a right or office to which that person is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law. The petitioner's claim for "back wages" could be the appropriate subject of an ordinary civil action and there is absolutely no showing that the said remedy is not plain, speedy and adequate. It does not even seem that the petitioner has given some priority to her claim. She did not claim for it in her 3 September 1990 letter to the PNRI. The first time she mentioned it was in her 4 March 1991 letter to the CSC. Thereafter, and before she filed this petition, she did nothing. As for the payment of salary equivalent to that of a Planning Assistant, it is clear that the petitioner does not seek reinstatement to the position of Planning Assistant. Since she had in fact asked for her retention in the PNRI and for her appointment to a new position and was accordingly appointed as Clerk II, a position which she voluntarily accepted and which she continues to hold until now, estoppel, which is clearly present, bars her obtainment of the desired relief.

We are not persuaded by the suggestion that the petitioner is only seeking execution of the decision in Arizabal vs. Leviste. The petitioner is not a party therein and is not, therefore, entitled to its execution. Nor do we agree with the plea in the dissenting opinion that we take this case as one for mandamus in the light of our decision in Cristobal vs. Melchor. 13 The factual milieu therein does not obtain in this case. Unlike Cristobal who was never reinstated despite his persistent pleas, the herein petitioner asked for and was appointed to the new position of Clerk II, which she accepted without reservation. InCristobal, this Court considered the viability of an action for mandamus and the grant of favorable relief thereunder even if the said action was filed after one year from the accrual of the cause of action, because it was the "act of the government through its responsible officials more particularly then Executive Secretary Amelito Mutuc and his successors which contributed to the alleged delay in the filing of Cristobal's . . . complaint for reinstatement." 14 It appeared therein that Cristobal and the other dismissed employees were assured by Executive Secretary Mutuc that he would work for their reinstatement; however, Mr. Mutuc was replaced by other Executive Secretaries to whom Cristobal "over and over again presented his request for reinstatement and who gave the same assurance that Cristobal would be recalled and re-employed at the 'opportune time.'" This "continued promise of government officials concerned led Cristobal to bide his time and wait for the Office of the President to comply with its commitment." 15 Even granting that the petitioner can avail herself of the writ of mandamus, we find no special or cogent reason to justify acceptance of this petition as an exception to this Court's policy concerning the hierarchy of courts in relation to cases where it has concurrent jurisdiction with the Regional Trial Court and the Court of Appeals. InPeople vs. Cuaresma, 16 this Court stated: A last word. This court's original jurisdiction to issue writs of certiorari (as well as prohibition,mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, enforceable in any part of their respective regions. It is also shared by this court, and by the Regional Trial Court, with the Court of Appeals (formerly, Intermediate Appellate Court), although prior to the effectivity ofBatas Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary

writs was restricted by those "in aid of its appellate jurisdiction." This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That heirarchy is determinative of the venue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those maters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. Indeed, the removal of the restriction of the jurisdiction of the Court of Appeals in this regard, supra resulting from the deletion of the qualifying phrase, "in aid of its appellate jurisdiction" was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for extraordinary writs which, but for the expansion of the Appellate Court's corresponding jurisdiction, would have had to be filed with it." (citations omitted) And in Defensor-Santiago vs. Vasquez, 17 this Court said: One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only because of the imposition upon the precious time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We, therefore,

reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction. WHEREFORE, IN VIEW OF ALL OF THE FOREGOING, judgment is hereby rendered DISMISSING the instant petition. No pronouncement as to cots. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Regalado, Romero, Melo, Quiason, Puno, and Mendoza, JJ., concur. Cruz, Bidin, JJ., are on leave.

Separate Opinions BELLOSILLO, J., concuring: I concur subject to my ponencia in Aldovino v. Alunan. 1 I will explain. I agree with the dissent of Mr. Justice Kapunan that the declaration of nullity of the assailed reorganizations inArizabal v. Leviste 2 nullified also in effect the separation of petitioner from the service; hence, theoretically, she could not be deemed to have been terminated. However, her act of signing up for another position, albeit lower, within the same office amounted to an abdication of her right to hold her former position. In other words, despite her separation, petitioner remained, in legal contemplation, as incumbent Planning Assistant of DOST. But the effect of her unqualified assumption as Clerk II is resignation from her former office as she cannot be holding both offices at the same time. Significantly, it appears from the statement of facts of the majority opinion that after the reorganization, petitioner never questioned her removal until the decision in Arizabal. She seemed contended with what fate befell her. Before then, there was no indication whatsoever that she resented her separation. She assumed the position of Clerk II without any condition or qualification; neither did she express interest in her reinstatement as Planning Assistant. Her actuation is indicum that she "opted to be phased

out," to use the language of Arizabal. Consequently, she is not entitled to reinstatement to her former position. Her situation is far different from that of most petitioners and intervenors in Aldovino who, from the start of their separation, unceasingly fought for their positions and demanding reinstatement, although in different fora some administratively, others judicially and extra-judicially. The ruling in Cristobal v. Melchor 3 cannot save her as it should only be applied sparingly and only in extreme cases of injustice. Her case is not one of them. She does not appear to be a victim of injustice. I also vote for the denial of the petition. KAPUNAN, J., dissenting: Arizabal vs. Leviste and the consolidated cases involving the reorganization of various government departments and agencies, emphatically held: We are constrained to set aside the reorganization embodied in these consolidated petitions because the heads of departments and agencies concerned have chosen to rely on their own concepts of unlimited discretion and "progressive" ideas on reorganization instead of showing that they have faithfully complied with the clear letter and spirit of the two constitutions and the statutes governing reorganizations. 1 In dismissing the petition of the Secretary of the Department of Science and Technology (DOST) and the Director and members of the Reorganization Evaluation Committee of the Philippine Nuclear Research Institute seeking annulment of the orders of the Regional Trial Court of Quezon City restraining them from dismissing various employees of the PNRI under Executive Order No. 128, we ordered the petitioners therein to retain the said employees under the new staffing pattern with positions comparable or equivalent to their former ranks and salaries. Specifically, we ruled that: 4) In G.R. No. 81495, the petition is DISMISSED. Except in the cases of those who have retired or opted to be phased out and who have received their separation and retirement benefits, the petitioners are ordered to retain the private respondents-employees in the reorganized department under the new staffing pattern with positions and salaries comparable or equivalent to their former positions but not lower than their former ranks and salaries. 2

The clear import of our decisions in these consolidated cases was that without exception 1) all the reorganizations embodied in the consolidated cases were set aside, and; 2) in cases where it was plainly impossible and impracticable to comply with our holding in Mendoza, we allowed a modification of our holding, provided those affected were restored to positions of similar rank and salary, if said employees did not opt for retirement or separation. Even assuming that petitioner allowed to have her name placed in a manpower pool for purposes of being assigned to another job, consistent with this Court's holding in Arizabal vs. Leviste, equity demands that she should have been automatically reassigned to a position both of comparable rank and salary. A lot has been said about the fact that herein petitioner was not among the original private respondents in G.R. No. 81495. Considering our decision in Arizabal and the subsequent case, De Guzman v. CSC, infra, her failure to join the petitioners in Arizabal was not fatal to her petition for reinstatement and back salaries. In Cristobal vs.Melchor 3 where the doctrine of laches was invoked to defeat the petitioner's demand for reinstatement to his former position with the Office of the President, this Court held the statute of limitations (provided for in Section 16, Rule 66, of the Rules of Court) inapplicable because there was no acquiescence or inaction on the part of Cristobal which would amount to an abandonment of his right to reinstatement. Addressing the contention that he was not one of the parties to the civil case and could not benefit from the lower court's decision in the said civil case, we held that: Cristobal was not one of the plaintiffs in the civil case, it is true, but his nonparticipation is not fatal to his cause of action (Emphasis ours). During the pendency of the civil case Cristobal continued to press his request for reinstatement together with the other employees who had filed the complaint and was in fact promised reinstatement as will be shown more in detail later. More importantly, Cristobal could be expected without necessarily spending time and money by going to court to rely upon the outcome of the case filed by his co-employees to protect his interests considering the similarity of his situation to that of the plaintiffs therein and the identical relief being sought. On this point, we find a statement of Justice Louis

Brandeis of the United States Supreme Court in Southern Pacific vs. Bogert, relevant and persuasive, and We quote: The essence of laches is not merely lapse of time. It is essential that there be also acquiescence in the alleged wrong or lack of diligence in seeking a remedy. Here plaintiffs, of others representing them, protested . . . and ever since they have . . . persisted in the diligent pursuit of a remedy . . . . Where the cause of action is of such a nature that a suit to enforce it would be brought on behalf, not only of the plaintiff, but of all persons similarly situated, it is not essential that each such persons should intervened (sic) in the suit brought in order that he be deemed thereafter free from the laches which bars those who sleep on their rights. (250 U.S. 483, 39 S. Ct. 536, 63 L. Ed. 1099, 1106-1107; Emphasis supplied. See also Overfield vs. Pennroad Corporation, et al. 42 Fed. Supp. 586, 613). 4 Significantly, in Cristobal, the plaintiff filed his complaint for reinstatement on August 10, 1971 or more than nine (9) years after his services as private secretary in the President's Private Office were terminated. The similarity in the circumstances of the petitioner and the private respondents in Arizabal and our ruling inCristobal militates against public respondents' assertion that petitioner herein could not benefit from our decision in the former case. Furthermore, we did not limit our holding in the Mendoza and Arizabal cases only to the petitioners therein. The decision was obviously broad enough to include all of those employees affected by the reorganizations we set aside in those consolidated cases such that 1) reinstatement should have been automatic, and; 2) it was not essential that petitioner should have intervened in Arizabal or joined the other PNRI employees in assailing the legality of their separation, for her to benefit from our holding. Petitioner's demotion to a mere Clerk II position with a salary of P17,640.00 from that of Planning Assistant II with compensation of P26,250.00 and the respondents' failure to rectify this situation were clearly in blatant contravention of both the letter and spirit of our orders in Mendoza and Arizabal. With due respect, I cannot simply reconcile myself with the majority's rationalization that petitioner was not compelled to accept the new position, that instead of questioning the new position structure or taking the alternative of separation or retirement, she expressed preference for the

new position and voluntarily accepted appointment thereto. On April 16, 1988 petitioner was removed from her earlier job as a result of the PNRI reorganization. She was unemployed for fourteen months. On June 15, 1989, she accepted a Clerk II position with a salary considerably less than the one which was abolished as result of the new staffing structure. From these circumstances, one can hardly assume that she accepted the unconscionable demotion "voluntarily." She did not have must choice. It was an option between the degradation of having to accept a lowly position with a salary reduced by more than one third and the pangs of hunger out of joblessness, at a time when heads of government departments and agencies were engaged in their orgy of throwing out from office hordes of government workers in the guise of reorganization, running roughshod on their rights of due process and security of tenure. In her unfortunate plight, petitioner, like the dismissed clerk in Cristobal who did not have the luxury, time and money to go to court to protect his rights, must also have relied on the outcome of the case filed by her co-employees, given the similarity of her situation to that of theirs. As I see it, the majority opinion assumes that this case merely involves the validity of final orders of the Civil Service Commission on the separation, removal or termination of a public officer. I beg to disagree. The issue brought before us affects the extent to which DOST has complied with our decision (in Mendoza) setting aside the reorganizations involving these government agencies and our holding (in Arizabal) directing petitioners in G.R. No. 81495 to reinstate their employees to positions of similar rank and salary. Such being the case, it would be inappropriate, in my mind, to misdirect our attention to petitioner's failure to comply with procedural steps relating to the CSC's order, rather than on the results of the abolition of the office itself. That would be mistaking the trees for the forest. There is no disagreement on the proposition that a valid abolition of an office is neither a separation nor a removal. Where, however, the abolition is void, the incumbent is deemed never to have ceased to hold office. 5 InCruz vs. Primicias 6 where the validity of the reorganization of provincial departments in the Province of Pangasinan was assailed by government employees terminated as a result of abolition of their offices, the Court, said:

No removal or separation of petitioners from service is here involved, but the validity of the abolition of their offices. This is a legal question that is for the Courts to decide. It is a well-known rule also that a valid abolition of offices is neither removal or separation of the incumbents. And of course, if the abolition is void the incumbent is deemed never to have ceased to hold office. xxx xxx xxx As well settled is the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith. Where the abolition is made in bad faith, for political and personal reasons, or in order to circumbent the constitutional security of tenure of civil service employees, it is null and void. 7 One of the points raised by the respondents in Primicias to defeat the petitioners' challenge against the validity of the abolition of their offices was precisely a procedural point: their failure to exhaust administrative remedies. In laying the question to rest, the Court emphasized that the petitioners therein never actually ceased to hold office if the abolition was null and void. Being null and void, their failure to exhaust available administrative remedies was clearly beside the point. As recently as March 11, 1994 in De Guzman vs. Civil Service Commission 8 where we clearly reiterated the fact that "we nullified the reorganization of respondents DOST and PNRI," 9 in Arizabal vs. Leviste, we held, citingArizabal, that: An abolition which is not bona fide but is merely a device to circumvent the constitutional security of tenure of the civil service employees is null and void. 10 In the case at bench, therefore, the effect of our decision in the above-cited consolidated cases and in De Guzman was to bring back those employees adversely affected by these reorganizations as far as practicable to the status quo on the day their positions were abolished. Consequently, as petitioner is deemed never to have ceased to hold office, it follows that the appealed decisions of the DOST and the Civil Service Commission have no practical force and effect, to begin with. By operation of law, she was entitled to all the rights and privileges which accrued to her by virtue of the office she held. Her failure to appeal the respondent Commission's decision

within the thirty-day period required by the Constitution was, therefore, immaterial because in the eyes of the law, her entitlement to the position of Planning Assistant (or to an equivalent one) and to the emoluments and privileges attached to the same had never actually ceased. From a practical point of view, her initial request for reinstatement to the position of Planning Assistant II, was in effect a request for compliance with our earlier orders in the Mendoza and Arizabal cases. The DOST's refusal to comply with the said orders, its failure to restore petitioner to the status quo, and the CSC's Resolution of 29 August 1991 were therefore made in excess of respondent's jurisdiction. Compliance with our decision ordering the public officials concerned to restore employees affected by the reorganization of the PNRI to the status quo as far as practicable in Arizabal vs.Leviste was not discretionary, but made obligatory by our orders in the Mendoza and Arizabal. The majority opinion has made much out of the petitioner's failure to comply with Article IX of the Constitution requiring that such petitions be filed within thirty days from receipt of the assailed resolutions, and Circular I-88 which requires a verified statement of material dates in these petitions. As we had already made a clear and unequivocal pronouncement in Arizabal to restore the illegally dismissed employees to positions comparable or equivalent to those they formerly held, "but not lower than their former ranks and salaries" (except in the cases of those who have retired or opted to be phased out and who have received their separation and retirement benefits), the only thing left to do for DOST was to implement or execute the directive. Petitioner's recourse to CSC from the adverse ruling of DOST was a superfluity as petitioner could have come to this Court to execute or implement its final orders. Hence, the prescriptive period mandated by Article IX of the 1987 Constitution could not have run. Moreover, the constitutional guarantee of security of tenure mandates that, as in Mendoza vs.Quisumbing and the Dario vs. Mison 11 cases, we disregard the procedural roadblocks erected by the public respondent in order to defeat what is otherwise a valid claim. A much more equitable result would have followed had we proceeded to treat the case at bench essentially on its own merits, particularly when we consider that the questioned delay in this case was even far less than the assailed delays in Dario vs. Mison and in the earlier case of Cristobal vs. Melchor.

In Dario, which we cited with favor in Mendoza vs. Quisumbing, we stated that: The Court disregards the questions raised as to procedure . . . and other technical objections, for two reasons, "[b]ecause of the demands of public interest, including the need for stability in the public service . . . and because of the serious implications of these cases on the administration of the Philippine civil service and the rights of public servants. 12 The Constitution, no less, demands a similar treatment of the procedural roadblocks that stand in the way of petitioner's valid claim. I vote to grant due course to the petition and to enter judgment as follows: 1. Declaring Resolution No. 91-1036 of respondent Civil Service Commission as null and void for being issued in grave abuse of discretion; 2. Ordering respondent Secretary of Science and Technology to reinstate the petitioner to the position of Planning Assistant, or if this is not possible, to another position of equivalent rank; and 3. Ordering the Secretary of Science and Technology to pay the backwages of petitioner for the period from April 16, 1988, the date she was illegally dismissed, to June 14, 1989, the date she was reinstated.

# Separate Opinions

BELLOSILLO, J., concurring: I concur subject to my ponencia in Aldovino v. Alunan. 1 I will explain. I agree with the dissent of Mr. Justice Kapunan that the declaration of nullity of the assailed reorganizations inArizabal v. Leviste 2 nullified also in effect the separation of petitioner from the service; hence, theoretically, she could not be deemed to have been terminated. However, her act of signing up for another position, albeit lower, within the same office amounted to an abdication of her right to hold her former position. In other words, despite her separation, petitioner remained, in legal contemplation, as incumbent Planning Assistant of DOST. But the effect of her unqualified assumption as Clerk II is resignation from her former office as she cannot be holding both offices at the same time. Significantly, it appears from the statement of facts of the majority opinion that after the reorganization, petitioner never questioned her removal until the decision in Arizabal. She seemed contended with what fate befell her.

Before then, there was no indication whatsoever that she resented her separation. She assumed the position of Clerk II without any condition or qualification; neither did she express interest in her reinstatement as Planning Assistant. Her actuation is indicum that she "opted to be phased out," to use the language of Arizabal. Consequently, she is not entitled to reinstatement to her former position. Her situation is far different from that of most petitioners and intervenors in Aldovino who, from the start of their separation, unceasingly fought for their positions and demanding reinstatement, although in different fora some administratively, others judicially and extra-judicially. The ruling in Cristobal v. Melchor 3 cannot save her as it should only be applied sparingly and only in extreme cases of injustice. Her case is not one of them. She does not appear to be a victim of injustice. I also vote for the denial of the petition. KAPUNAN, J., dissenting: Arizabal vs. Leviste and the consolidated cases involving the reorganization of various government departments and agencies, emphatically held: We are constrained to set aside the reorganization embodied in these consolidated petitions because the heads of departments and agencies concerned have chosen to rely on their own concepts of unlimited discretion and "progressive" ideas on reorganization instead of showing that they have faithfully complied with the clear letter and spirit of the two constitutions and the statutes governing reorganizations. 1 In dismissing the petition of the Secretary of the Department of Science and Technology (DOST) and the Director and members of the Reorganization Evaluation Committee of the Philippine Nuclear Research Institute seeking annulment of the orders of the Regional Trial Court of Quezon City restraining them from dismissing various employees of the PNRI under Executive Order No. 128, we ordered the petitioners therein to retain the said employees under the new staffing pattern with positions comparable or equivalent to their former ranks and salaries. Specifically, we ruled that: 4) In G.R. No. 81495, the petition is DISMISSED. Except in the cases of those who have retired or opted to be phased out and who have received their separation and retirement benefits, the petitioners are ordered to retain the private respondents-employees in the reorganized department

under the new staffing pattern with positions and salaries comparable or equivalent to their former positions but not lower than their former ranks and salaries. 2 The clear import of our decisions in these consolidated cases was that without exception 1) all the reorganizations embodied in the consolidated cases were set aside, and; 2) in cases where it was plainly impossible and impracticable to comply with our holding in Mendoza, we allowed a modification of our holding, provided those affected were restored to positions of similar rank and salary, if said employees did not opt for retirement or separation. Even assuming that petitioner allowed to have her name placed in a manpower pool for purposes of being assigned to another job, consistent with this Court's holding in Arizabal vs. Leviste, equity demands that she should have been automatically reassigned to a position both of comparable rank and salary. A lot has been said about the fact that herein petitioner was not among the original private respondents in G.R. No. 81495. Considering our decision in Arizabal and the subsequent case, De Guzman v. CSC, infra, her failure to join the petitioners in Arizabal was not fatal to her petition for reinstatement and back salaries. In Cristobal vs.Melchor 3 where the doctrine of laches was invoked to defeat the petitioner's demand for reinstatement to his former position with the Office of the President, this Court held the statute of limitations (provided for in Section 16, Rule 66, of the Rules of Court) inapplicable because there was no acquiescence or inaction on the part of Cristobal which would amount to an abandonment of his right to reinstatement. Addressing the contention that he was not one of the parties to the civil case and could not benefit from the lower court's decision in the said civil case, we held that: Cristobal was not one of the plaintiffs in the civil case, it is true, but his nonparticipation is not fatal to his cause of action (Emphasis ours). During the pendency of the civil case Cristobal continued to press his request for reinstatement together with the other employees who had filed the complaint and was in fact promised reinstatement as will be shown more in detail later. More importantly, Cristobal could be expected without necessarily spending time and money by going to court to rely upon the outcome of the case filed by his co-employees to protect his interests considering the

similarity of his situation to that of the plaintiffs therein and the identical relief being sought. On this point, we find a statement of Justice Louis Brandeis of the United States Supreme Court in Southern Pacific vs. Bogert, relevant and persuasive, and We quote: The essence of laches is not merely lapse of time. It is essential that there be also acquiescence in the alleged wrong or lack of diligence in seeking a remedy. Here plaintiffs, of others representing them, protested . . . and ever since they have . . . persisted in the diligent pursuit of a remedy . . . . Where the cause of action is of such a nature that a suit to enforce it would be brought on behalf, not only of the plaintiff, but of all persons similarly situated, it is not essential that each such persons should intervened (sic) in the suit brought in order that he be deemed thereafter free from the laches which bars those who sleep on their rights. (250 U.S. 483, 39 S. Ct. 536, 63 L. Ed. 1099, 1106-1107; Emphasis supplied. See also Overfield vs. Pennroad Corporation, et al. 42 Fed. Supp. 586, 613). 4 Significantly, in Cristobal, the plaintiff filed his complaint for reinstatement on August 10, 1971 or more than nine (9) years after his services as private secretary in the President's Private Office were terminated. The similarity in the circumstances of the petitioner and the private respondents in Arizabal and our ruling inCristobal militates against public respondents' assertion that petitioner herein could not benefit from our decision in the former case. Furthermore, we did not limit our holding in the Mendoza and Arizabal cases only to the petitioners therein. The decision was obviously broad enough to include all of those employees affected by the reorganizations we set aside in those consolidated cases such that 1) reinstatement should have been automatic, and; 2) it was not essential that petitioner should have intervened in Arizabal or joined the other PNRI employees in assailing the legality of their separation, for her to benefit from our holding. Petitioner's demotion to a mere Clerk II position with a salary of P17,640.00 from that of Planning Assistant II with compensation of P26,250.00 and the respondents' failure to rectify this situation were clearly in blatant contravention of both the letter and spirit of our orders in Mendoza and Arizabal. With due respect, I cannot simply reconcile myself with the majority's rationalization that petitioner was not compelled to accept the new position,

that instead of questioning the new position structure or taking the alternative of separation or retirement, she expressed preference for the new position and voluntarily accepted appointment thereto. On April 16, 1988 petitioner was removed from her earlier job as a result of the PNRI reorganization. She was unemployed for fourteen months. On June 15, 1989, she accepted a Clerk II position with a salary considerably less than the one which was abolished as result of the new staffing structure. From these circumstances, one can hardly assume that she accepted the unconscionable demotion "voluntarily." She did not have must choice. It was an option between the degradation of having to accept a lowly position with a salary reduced by more than one third and the pangs of hunger out of joblessness, at a time when heads of government departments and agencies were engaged in their orgy of throwing out from office hordes of government workers in the guise of reorganization, running roughshod on their rights of due process and security of tenure. In her unfortunate plight, petitioner, like the dismissed clerk in Cristobal who did not have the luxury, time and money to go to court to protect his rights, must also have relied on the outcome of the case filed by her co-employees, given the similarity of her situation to that of theirs. As I see it, the majority opinion assumes that this case merely involves the validity of final orders of the Civil Service Commission on the separation, removal or termination of a public officer. I beg to disagree. The issue brought before us affects the extent to which DOST has complied with our decision (in Mendoza) setting aside the reorganizations involving these government agencies and our holding (in Arizabal) directing petitioners in G.R. No. 81495 to reinstate their employees to positions of similar rank and salary. Such being the case, it would be inappropriate, in my mind, to misdirect our attention to petitioner's failure to comply with procedural steps relating to the CSC's order, rather than on the results of the abolition of the office itself. That would be mistaking the trees for the forest. There is no disagreement on the proposition that a valid abolition of an office is neither a separation nor a removal. Where, however, the abolition is void, the incumbent is deemed never to have ceased to hold office. 5 InCruz vs. Primicias 6 where the validity of the reorganization of provincial departments in the Province of Pangasinan was assailed by government

employees terminated as a result of abolition of their offices, the Court, said: No removal or separation of petitioners from service is here involved, but the validity of the abolition of their offices. This is a legal question that is for the Courts to decide. It is a well-known rule also that a valid abolition of offices is neither removal or separation of the incumbents. And of course, if the abolition is void the incumbent is deemed never to have ceased to hold office. xxx xxx xxx As well settled is the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith. Where the abolition is made in bad faith, for political and personal reasons, or in order to circumbent the constitutional security of tenure of civil service employees, it is null and void. 7 One of the points raised by the respondents in Primicias to defeat the petitioners' challenge against the validity of the abolition of their offices was precisely a procedural point: their failure to exhaust administrative remedies. In laying the question to rest, the Court emphasized that the petitioners therein never actually ceased to hold office if the abolition was null and void. Being null and void, their failure to exhaust available administrative remedies was clearly beside the point. As recently as March 11, 1994 in De Guzman vs. Civil Service Commission 8 where we clearly reiterated the fact that "we nullified the reorganization of respondents DOST and PNRI," 9 in Arizabal vs. Leviste, we held, citingArizabal, that: An abolition which is not bona fide but is merely a device to circumvent the constitutional security of tenure of the civil service employees is null and void. 10 In the case at bench, therefore, the effect of our decision in the above-cited consolidated cases and in De Guzman was to bring back those employees adversely affected by these reorganizations as far as practicable to the status quo on the day their positions were abolished. Consequently, as petitioner is deemed never to have ceased to hold office, it follows that the appealed decisions of the DOST and the Civil Service Commission have no practical force and effect, to begin with. By operation of law, she was

entitled to all the rights and privileges which accrued to her by virtue of the office she held. Her failure to appeal the respondent Commission's decision within the thirty-day period required by the Constitution was, therefore, immaterial because in the eyes of the law, her entitlement to the position of Planning Assistant (or to an equivalent one) and to the emoluments and privileges attached to the same had never actually ceased. From a practical point of view, her initial request for reinstatement to the position of Planning Assistant II, was in effect a request for compliance with our earlier orders in the Mendoza and Arizabal cases. The DOST's refusal to comply with the said orders, its failure to restore petitioner to the status quo, and the CSC's Resolution of 29 August 1991 were therefore made in excess of respondent's jurisdiction. Compliance with our decision ordering the public officials concerned to restore employees affected by the reorganization of the PNRI to the status quo as far as practicable in Arizabal vs.Leviste was not discretionary, but made obligatory by our orders in the Mendoza and Arizabal. The majority opinion has made much out of the petitioner's failure to comply with Article IX of the Constitution requiring that such petitions be filed within thirty days from receipt of the assailed resolutions, and Circular I-88 which requires a verified statement of material dates in these petitions. As we had already made a clear and unequivocal pronouncement in Arizabal to restore the illegally dismissed employees to positions comparable or equivalent to those they formerly held, "but not lower than their former ranks and salaries" (except in the cases of those who have retired or opted to be phased out and who have received their separation and retirement benefits), the only thing left to do for DOST was to implement or execute the directive. Petitioner's recourse to CSC from the adverse ruling of DOST was a superfluity as petitioner could have come to this Court to execute or implement its final orders. Hence, the prescriptive period mandated by Article IX of the 1987 Constitution could not have run. Moreover, the constitutional guarantee of security of tenure mandates that, as in Mendoza vs.Quisumbing and the Dario vs. Mison 11 cases, we disregard the procedural roadblocks erected by the public respondent in order to defeat what is otherwise a valid claim. A much more equitable result would have followed had we proceeded to treat the case at bench essentially on its own merits, particularly when we consider that the questioned delay in this case was

even far less than the assailed delays in Dario vs. Mison and in the earlier case of Cristobal vs. Melchor. In Dario, which we cited with favor in Mendoza vs. Quisumbing, we stated that: The Court disregards the questions raised as to procedure . . . and other technical objections, for two reasons, "[b]ecause of the demands of public interest, including the need for stability in the public service . . . and because of the serious implications of these cases on the administration of the Philippine civil service and the rights of public servants. 12 The Constitution, no less, demands a similar treatment of the procedural roadblocks that stand in the way of petitioner's valid claim. I vote to grant due course to the petition and to enter judgment as follows: 1. Declaring Resolution No. 91-1036 of respondent Civil Service Commission as null and void for being issued in grave abuse of discretion; 2. Ordering respondent Secretary of Science and Technology to reinstate the petitioner to the position of Planning Assistant, or if this is not possible, to another position of equivalent rank; and 3. Ordering the Secretary of Science and Technology to pay the backwages of petitioner for the period from April 16, 1988, the date she was illegally dismissed, to June 14, 1989, the date she was reinstated.
#Footnotes

1 Rollo, 6. 2 One of the companion cases in Mendoza vs. Quisumbing, 186, SCRA 108 [1990]. 3 Said section provides in part as follows: "Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorariby the aggrieved party within thirty days from receipt of a copy thereof." 4 Dario vs. Mison, 176 SCRA 84, 111 [1989]. 5 Supra footnote no. 2. 6 Annex "D" of Petition; Rollo, 14. 7 Annex "B"; Id., 10. 8 Annex "C"; Id., 11-12. 9 Annex "D"; Id., 13. 10 Annex "E" of Petition; Rollo, 15. 11 Annex "F"; Id., 16-17.

12 Annex "G"; Id., 18-19. 13 78 SCRA 175 [1977]. 14 Id. at 183. 15 Id. at 184. 16 172 SCRA 415, 423-424 [1989]. 17 217 SCRA 633, 651-652 [1993]. BELLOSILLO, J.: Concurring: 1 G.R. No. 102232, 9 March 1994. 2 G.R. No. 81495, 4 June 1990, 186 SCRA 108, a lesser known companion case of Mendoza v. Quisumbing, G.R. No. 78053. 3 No. L-43203, 29 July 1977, 78 SCRA 175. KAPUNAN, J., Dissenting: 1 Mendoza v. Quisumbing, 186 SCRA 108 (1990). Arizabal was one of the companion cases decided in Mendoza. 2 Id., at 155. 3 78 SCRA 175 (1977). 4 Id., at 183. 5 Cruz v. Primicias, 23 SCRA 998, 1003 (1968) 6 Id. 7 Id. (citations omitted). 8 G.R. No. 10105, March 11, 1994. 9 Id. (Emphasis supplied) 10 Citing Arizabal v. Leviste, see supra, note 1. 11 Cited in Mendoza, supra note 1 at 138-139. 12 Id.

PEMA et. al. vs. ESTANISLAO et. al.

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THIRD DIVISION G.R. No. 104209 November 16, 1993 PHILNABANK EMPLOYEES ASSOCIATION (PEMA), DBP EMPLOYEES UNION (DBPEU), LBP EMPLOYEES ASSOCIATION (LBPEA), ALERT AND CONCERNED EMPLOYEES FOR BETTER SSS (ACCESS), and KAPATIRAN NG MANGGAGAWA SA GSIS (KMG), all under the name and style of KAPATIRAN NG MGA MANGGAGAWA SA GFI, petitioners, -versusHON. JESUS P. ESTANISLAO, in his capacity as Secretary of the Department of Finance and HON. RUBEN D. TORRES, in his capacity as Secretary of the Department of Labor and Employment, respondents Alfredo L. Bentulan for petitioners. Nestor C. Montemor for Philna-Bank Employees' Association. Salvador C. Bunye, Cristina A. Mortel and Jaime T. de Veyra for movants. The Solicitor General for respondents. RESOLUTION VITUG, J.: Assailed in this petition for certiorari is a provision of the Supplemental Rules Implementing Republic Act No. 6971 (Productivity Incentives Act of 1990), jointly promulgated by the Secretary of the Department of Finance and the Secretary of the Department of Labor and Employment, excluding from the coverage of said Act the employees of the Philippine National Bank ("PNB"), Development Bank of the Philippines ("DBP"), Land Bank of the Philippines ("LBP"), Social Security System ("SSS") and Government Service and Insurance System ("GSIS"). Parenthetically, certain rank and file employees of the Public Estates Authority filed a motion for intervention to join the petitioners 1 which they

later withdrew, nonetheless, asserting that "any resolution in the instant petition would likewise apply to them. 2 Republic Act No. 6971 was signed into law on 22 November 1990 by then President Corazon C. Aquino. It took effect on 9 December 1990 (fifteen days after its publication in two newspapers of general circulation). Section 3 of the law states: Sec. 3. Coverage. This Act shall apply to all business enterprises with or without, existing and duly recognized or certified labor organizations, including government owned and controlled corporations performing proprietary functions. It shall cover employees and workers including casual, regular, supervisory and managerial employees. The same Act empowers the Secretary of Labor and Employment and the Secretary of Finance, "after due notice and hearing" to "jointly promulgate and issue within six (6) months from the effectivity of (the) Act such rules and regulations as are necessary to carry out (its) provisions" (Sec. 6, R.A. 6971) On June 03, 1991, the then Labor Secretary Ruben D. Torres and Finance Secretary Jesus P. Estanislao promulgated the Rules Implementing Republic Act. No. 6971. The Rules took effect on 18 June 1991 following the required publication thereof in a national newspaper of general circulation. Section 1, Rule II, of the aforesaid Rules provides: Sec. 1. Coverage. These Rules shall apply to: (a) All business enterprises wit or without existing duly recognized or certified labor organizations, including government-owned and controlled corporations performing proprietary functions. (b) All employees and workers including casual, regular, rank-and-file, supervisory and managerial employees. Forthwith, petitioner organizations requested their respective employers to constitute and convene a Labor-Management Committee (LMC) to discuss and adopt a Productivity Incentives Program (PIP). In the meantime, productivity bonuses were distributed by the PNB, DBP, LBP, SSS and GSIS. 3 On 24 December 1991, Secretary Estanislao sent the following memorandum to all heads of government financial institutions (GFI's):

To : GFI Heads From : Jesus P. Estanislao On : Productivity Incentive Award 1. The President has asked me to remind all the GFI heads about our agreement to desist from making any further payments/moves regarding productivity incentives until such time as DOLE/DOF can issue clarificatory guidelines. 2. In view of the move of the SSS, the President has authorized me to indicate that GFI's may have a choice on granting productivity incentives under the new law or the traditional PIA (productivity incentive award), provided the terms and conditions of either choice are exactly the same. 3. She has also instructed me to coordinate with DOLE and the immediate issuance of a possible clarificatory guideline. (Sgd.) JESUS P. ESTANISLAO 4 In accordance with this memorandum, PNB Executive Vice-President Domingo A. Santiago, Jr., sent a letter to petitioner Philnabank Employees Association, through its President Jerry P. Tan, advising the latter that in view of the Estanislao memorandum, PNB was "constrained to wait for the issuance of the said clarificatory guidelines". 5 Allegedly without due notice and hearing, Secretary Estanislao and Secretary Torres subsequently issued the Supplemental Rules Implementing Republic Act No. 6971, clarifying or amending the previously promulgated rules because "the coverage of the GOCCs (government owned and controlled corporations) performing proprietary functions would require harmonization with present definitions, concepts, strategies, policies and thrusts involving the rationalization of the government corporate sector." Paragraph (a), Section 1, Rule II, of the Rules was thereby modified to read, as follows: Coverage. These Rules shall apply to: (a) All business enterprises with or without existing duly certified labor organizations, including government owned and controlled corporations performing proprietary functions which are established solely for business or profit or gain and accordingly excluding those created, maintained or acquired in pursuance of a policy of the state, enunciated in the Constitution or by law, and those whose officers and employees are covered by the Civil Service.

Government-owned and controlled corporations meeting the criteria provided in the immediately preceding paragraph shall be certified to by the Government Corporate Monitoring and Coordinating Committee established by E.O. No. 236 of July 22, 1987. (Emphasis supplied) On 7 January 1992, under the letterhead, "Kapatiran Ng Manggagawa Sa GFI" (KAMAGFI), PEMA President Jerry P. Tan sent Secretary Torres and Secretary Estanislao a letter contesting the amendatory rule and giving them forty-eight (48) hours within which "to recall and revoke" the same. He also informed the heads of the two departments that the supplemental rules were creating "serious demoralization(s)" among the officers and employees of the GFIs and that failure to revoke the recall the Supplemental Rules "would mean drastic legal actions and massive concerted activities" on the part of the GFI employees. 6 KAMAGFI also addressed an open letter, dated 09 January 1992, of similar tenor to the President of the Philippines, Secretary Estanislao, Secretary Torres, Senate President Neptali Gonzales, Speaker Ramon Mitra, Jr., Senator Teofisto Guingona, and Congressmen Felicito Payumo and Alberto Veloso. 7 On January 10, 1992, the matter was referred by the Office of the President to Secretary Torres. 8 On 09 March 1992, the instant petition for certiorari was filed. The petitioners contend that by promulgating the Supplemental Rules, the respondents have "overstepped the bounds of their rule-making authority byamending the coverage of the Act as provided in Section 3 thereof." Arguing that Republic Act No. 6971 has been intended by the lawmakers to cover government-owned and controlled corporations which are performing proprietary functions, without qualifications, the petitioners assert that the respondents have "arrogated upon themselves the power not only to make law, but also to unmake it by adopting rules inconsistent with and contrary to the clear intention and the end sought to be attained by the Act." 9 The petitioners conclude that the respondents have thus gravely based their discretion, amounting to lack of jurisdiction. The respondents, through the Solicitor general, contest the herein petition as being both an improper remedy, considering that the respondents "did not adjudicate the rights and obligations of the GFI employees," and precipitate, since the petitioners' recourse should have first been administratively pursued with the Civil Service Commission." 10 The instant petition for certiorari cannot be granted.

Firstly, the respondent department secretaries, in promulgating the questioned rule did so in accordance with the mandate of Republic Act No. 6971. Concededly, in the process, neither did said respondents act in any judicial or quasi-judicial capacity nor did they arrogate unto themselves any such performance of judicial or quasi-judicial prerogative. A petition for certiorari is a special civil action that may be invoked only against a a tribunal, board, or officer exercising judicial functions. Section 1, Rule 65, of the revised Rules of Court is explicit on this matter; viz: Sec. 1. Petition for certiorari. When any tribunal, board or officer exercising judicial functions, has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of the law, a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings, as the law requires, of such tribunal, board or officer. Secondly, although not inflexible, we have repeatedly declined on grounds of prematurity, as well as in the interest of good order, a hasty recourse to the courts when administrative avenues are still open. 11 Thirdly, while this case is styled as a petition for certiorari, there is, however, no denying the fact that, in essence, it seeks the declaration by the court of the unconstitutionality and illegality of the questioned rule, thus partaking the nature, in reality, of one for declaratory relief over which this Court has only appellate, not original, jurisdiction. Fourthly, even in cases, where this Court is conferred with primary jurisdiction, starting with the case of Santiago vs. Vasquez et al., 12 we have stressed, thus . . . We discern in the proceedings in this case a propensity on the part of the petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original and concurrent jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only because of the imposition upon the precious time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which

often has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction. Finally, the principal issue raised by the petitioners, i.e., whether or not the government financial institutions herein involved (but which have not even been impleaded) are embraced by the phrase "government-owned and controlled corporations performing proprietary functions" in the context of Republic Act 6971, is itself not necessarily a mere question of law, that, for certain can totally discard a factual assessment of the respective operations of said institutions and the degree that such operations interrelate, as the case may be, to their governmental or proprietary functions. This Court has said, more than once, that it is not an initial evaluator of facts. WHEREFORE, the instant petition for certiorari is DISMISSED. No Costs. SO ORDERED. Feliciano, Bidin, Romero and Melo, JJ., concur. # Endnotes 1 Rollo, p. 123. 2 Ibid., p. 159. 3 Petition, p. 5; Rollo, p. 6. 4 Rollo, pp. 37 & 65. 5 Ibid., p. 38. 6 Ibid., p. 41. 7 Ibid., p. 42. 8 Ibid., p. 43. 9 Petition, p. 12; Rollo, p. 13. 10 Comment, p. 13; Rollo, p. 103. 11 Cruz vs. del Rosario, 9 SCRA 755; Llarena vs. Hon. Lacson, 108 Phil. 510; Chua Huat, et al. vs. Hon. Bagatsing, et al., 199 SCRA 1. 12 217 SCRA 633.

University of Santo Tomas, Faculty of Civil Law 2010 All Rights Reserved.

ULEP vs. LEGAL CLINIC

Republic of the Philippines SUPREME COURT Manila EN BANC Bar Matter No. 553 June 17, 1993 MAURICIO C. ULEP, petitioner, vs. THE LEGAL CLINIC, INC., respondent. R E SO L U T I O N

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REGALADO, J.: Petitioner prays this Court "to order the respondent to cease and desist from issuing advertisements similar to or of the same tenor as that of annexes "A" and "B" (of said petition) and to perpetually prohibit persons or entities from making advertisements pertaining to the exercise of the law profession other than those allowed by law." The advertisements complained of by herein petitioner are as follows: Annex A SECRET MARRIAGE? P560.00 for a valid marriage. Info on DIVORCE. ABSENCE. ANNULMENT. VISA. THE Please call: 521-0767 LEGAL 5217232, 5222041 CLINIC, INC. 8:30 am 6:00 pm 7-Flr. Victoria Bldg., UN Ave., Mla. Annex B GUAM DIVORCE. DON PARKINSON an Attorney in Guam, is giving FREE BOOKS on Guam Divorce through The Legal Clinic beginning Monday to Friday during office hours. Guam divorce. Annulment of Marriage. Immigration Problems, Visa Ext. Quota/Non-quota Res. & Special Retiree's Visa. Declaration of Absence. Remarriage to Filipina Fiancees. Adoption. Investment in the Phil. US/Foreign Visa for Filipina Spouse/Children. Call Marivic. THE 7F Victoria Bldg. 429 UN Ave., LEGAL Ermita, Manila nr. US Embassy CLINIC, INC. 1 Tel. 521-7232; 521-7251; 522-2041; 521-0767

It is the submission of petitioner that the advertisements above reproduced are champterous, unethical, demeaning of the law profession, and destructive of the confidence of the community in the integrity of the members of the bar and that, as a member of the legal profession, he is ashamed and offended by the said advertisements, hence the reliefs sought in his petition as hereinbefore quoted. In its answer to the petition, respondent admits the fact of publication of said advertisement at its instance, but claims that it is not engaged in the practice of law but in the rendering of "legal support services" through paralegals with the use of modern computers and electronic machines. Respondent further argues that assuming that the services advertised are legal services, the act of advertising these services should be allowed supposedly in the light of the case of John R. Bates and Van O'Steen vs. State Bar of Arizona, 2 reportedly decided by the United States Supreme Court on June 7, 1977. Considering the critical implications on the legal profession of the issues raised herein, we required the (1) Integrated Bar of the Philippines (IBP), (2) Philippine Bar Association (PBA), (3) Philippine Lawyers' Association (PLA), (4) U.P. Womens Lawyers' Circle (WILOCI), (5) Women Lawyers Association of the Philippines (WLAP), and (6) Federacion International de Abogadas (FIDA) to submit their respective position papers on the controversy and, thereafter, their memoranda. 3 The said bar associations readily responded and extended their valuable services and cooperation of which this Court takes note with appreciation and gratitude. The main issues posed for resolution before the Court are whether or not the services offered by respondent, The Legal Clinic, Inc., as advertised by it constitutes practice of law and, in either case, whether the same can properly be the subject of the advertisements herein complained of. Before proceeding with an in-depth analysis of the merits of this case, we deem it proper and enlightening to present hereunder excerpts from the respective position papers adopted by the aforementioned bar associations and the memoranda submitted by them on the issues involved in this bar matter. 1. Integrated Bar of the Philippines: xxx xxx xxx

Notwithstanding the subtle manner by which respondent endeavored to distinguish the two terms,i.e., "legal support services" vis-a-vis "legal services", common sense would readily dictate that the same are essentially without substantial distinction. For who could deny that document search, evidence gathering, assistance to layman in need of basic institutional services from government or non-government agencies like birth, marriage, property, or business registration, obtaining documents like clearance, passports, local or foreign visas, constitutes practice of law? xxx xxx xxx The Integrated Bar of the Philippines (IBP) does not wish to make issue with respondent's foreign citations. Suffice it to state that the IBP has made its position manifest, to wit, that it strongly opposes the view espoused by respondent (to the effect that today it is alright to advertise one's legal services). The IBP accordingly declares in no uncertain terms its opposition to respondent's act of establishing a "legal clinic" and of concomitantly advertising the same through newspaper publications. The IBP would therefore invoke the administrative supervision of this Honorable Court to perpetually restrain respondent from undertaking highly unethical activities in the field of law practice as aforedescribed. 4 xxx xxx xxx A. The use of the name "The Legal Clinic, Inc." gives the impression that respondent corporation is being operated by lawyers and that it renders legal services. While the respondent repeatedly denies that it offers legal services to the public, the advertisements in question give the impression that respondent is offering legal services. The Petition in fact simply assumes this to be so, as earlier mentioned, apparently because this (is) the effect that the advertisements have on the reading public. The impression created by the advertisements in question can be traced, first of all, to the very name being used by respondent "The Legal Clinic, Inc." Such a name, it is respectfully submitted connotes the rendering of legal services for legal problems, just like a medical clinic connotes medical services for medical problems. More importantly, the term "Legal Clinic" connotes lawyers, as the term medical clinic connotes doctors.

Furthermore, the respondent's name, as published in the advertisements subject of the present case, appears with (the) scale(s) of justice, which all the more reinforces the impression that it is being operated by members of the bar and that it offers legal services. In addition, the advertisements in question appear with a picture and name of a person being represented as a lawyer from Guam, and this practically removes whatever doubt may still remain as to the nature of the service or services being offered. It thus becomes irrelevant whether respondent is merely offering "legal support services" as claimed by it, or whether it offers legal services as any lawyer actively engaged in law practice does. And it becomes unnecessary to make a distinction between "legal services" and "legal support services," as the respondent would have it. The advertisements in question leave no room for doubt in the minds of the reading public that legal services are being offered by lawyers, whether true or not. B. The advertisements in question are meant to induce the performance of acts contrary to law, morals, public order and public policy. It may be conceded that, as the respondent claims, the advertisements in question are only meant to inform the general public of the services being offered by it. Said advertisements, however, emphasize to Guam divorce, and any law student ought to know that under the Family Code, there is only one instance when a foreign divorce is recognized, and that is: Article 26. . . . Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine Law. It must not be forgotten, too, that the Family Code (defines) a marriage as follows: Article 1. Marriage is special contract of permanent union between a man and woman entered into accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relation during the marriage within the limits provided by this Code.

By simply reading the questioned advertisements, it is obvious that the message being conveyed is that Filipinos can avoid the legal consequences of a marriage celebrated in accordance with our law, by simply going to Guam for a divorce. This is not only misleading, but encourages, or serves to induce, violation of Philippine law. At the very least, this can be considered "the dark side" of legal practice, where certain defects in Philippine laws are exploited for the sake of profit. At worst, this is outright malpractice. Rule 1.02. A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. In addition, it may also be relevant to point out that advertisements such as that shown in Annex "A" of the Petition, which contains a cartoon of a motor vehicle with the words "Just Married" on its bumper and seems to address those planning a "secret marriage," if not suggesting a "secret marriage," makes light of the "special contract of permanent union," the inviolable social institution," which is how the Family Code describes marriage, obviously to emphasize its sanctity and inviolability. Worse, this particular advertisement appears to encourage marriages celebrated in secrecy, which is suggestive of immoral publication of applications for a marriage license. If the article "Rx for Legal Problems" is to be reviewed, it can readily be concluded that the above impressions one may gather from the advertisements in question are accurate. The Sharon Cuneta-Gabby Concepcion example alone confirms what the advertisements suggest. Here it can be seen that criminal acts are being encouraged or committed (a bigamous marriage in Hong Kong or Las Vegas) with impunity simply because the jurisdiction of Philippine courts does not extend to the place where the crime is committed. Even if it be assumed, arguendo, (that) the "legal support services" respondent offers do not constitute legal services as commonly understood, the advertisements in question give the impression that respondent corporation is being operated by lawyers and that it offers legal services, as earlier discussed. Thus, the only logical consequence is that, in the eyes of an ordinary newspaper reader, members of the bar themselves are encouraging or inducing the performance of acts which are contrary to law, morals, good customs and the public good, thereby destroying and demeaning the integrity of the Bar. xxx xxx xxx

It is respectfully submitted that respondent should be enjoined from causing the publication of the advertisements in question, or any other advertisements similar thereto. It is also submitted that respondent should be prohibited from further performing or offering some of the services it presently offers, or, at the very least, from offering such services to the public in general. The IBP is aware of the fact that providing computerized legal research, electronic data gathering, storage and retrieval, standardized legal forms, investigators for gathering of evidence, and like services will greatly benefit the legal profession and should not be stifled but instead encouraged. However, when the conduct of such business by non-members of the Bar encroaches upon the practice of law, there can be no choice but to prohibit such business. Admittedly, many of the services involved in the case at bar can be better performed by specialists in other fields, such as computer experts, who by reason of their having devoted time and effort exclusively to such field cannot fulfill the exacting requirements for admission to the Bar. To prohibit them from "encroaching" upon the legal profession will deny the profession of the great benefits and advantages of modern technology. Indeed, a lawyer using a computer will be doing better than a lawyer using a typewriter, even if both are (equal) in skill. Both the Bench and the Bar, however, should be careful not to allow or tolerate the illegal practice of law in any form, not only for the protection of members of the Bar but also, and more importantly, for the protection of the public. Technological development in the profession may be encouraged without tolerating, but instead ensuring prevention of illegal practice. There might be nothing objectionable if respondent is allowed to perform all of its services, but only if such services are made available exclusively to members of the Bench and Bar. Respondent would then be offering technical assistance, not legal services. Alternatively, the more difficult task of carefully distinguishing between which service may be offered to the public in general and which should be made available exclusively to members of the Bar may be undertaken. This, however, may require further proceedings because of the factual considerations involved. It must be emphasized, however, that some of respondent's services ought to be prohibited outright, such as acts which tend to suggest or induce

celebration abroad of marriages which are bigamous or otherwise illegal and void under Philippine law. While respondent may not be prohibited from simply disseminating information regarding such matters, it must be required to include, in the information given, a disclaimer that it is not authorized to practice law, that certain course of action may be illegal under Philippine law, that it is not authorized or capable of rendering a legal opinion, that a lawyer should be consulted before deciding on which course of action to take, and that it cannot recommend any particular lawyer without subjecting itself to possible sanctions for illegal practice of law. If respondent is allowed to advertise, advertising should be directed exclusively at members of the Bar, with a clear and unmistakable disclaimer that it is not authorized to practice law or perform legal services. The benefits of being assisted by paralegals cannot be ignored. But nobody should be allowed to represent himself as a "paralegal" for profit, without such term being clearly defined by rule or regulation, and without any adequate and effective means of regulating his activities. Also, law practice in a corporate form may prove to be advantageous to the legal profession, but before allowance of such practice may be considered, the corporation's Article of Incorporation and By-laws must conform to each and every provision of the Code of Professional Responsibility and the Rules of Court. 5 2. Philippine Bar Association: xxx xxx xxx. Respondent asserts that it "is not engaged in the practice of law but engaged in giving legal support services to lawyers and laymen, through experienced paralegals, with the use of modern computers and electronic machines" (pars. 2 and 3, Comment). This is absurd. Unquestionably, respondent's acts of holding out itself to the public under the trade name "The Legal Clinic, Inc.," and soliciting employment for its enumerated services fall within the realm of a practice which thus yields itself to the regulatory powers of the Supreme Court. For respondent to say that it is merely engaged in paralegal work is to stretch credulity. Respondent's own commercial advertisement which announces a certain Atty. Don Parkinson to be handling the fields of law belies its pretense. From all indications, respondent "The Legal Clinic, Inc." is offering and rendering legal services through its reserve of lawyers. It has been held that the practice of law is not limited to the conduct of cases in court, but includes drawing of

deeds, incorporation, rendering opinions, and advising clients as to their legal right and then take them to an attorney and ask the latter to look after their case in court See Martin, Legal and Judicial Ethics, 1984 ed., p. 39). It is apt to recall that only natural persons can engage in the practice of law, and such limitation cannot be evaded by a corporation employing competent lawyers to practice for it. Obviously, this is the scheme or device by which respondent "The Legal Clinic, Inc." holds out itself to the public and solicits employment of its legal services. It is an odious vehicle for deception, especially so when the public cannot ventilate any grievance for malpractice against the business conduit. Precisely, the limitation of practice of law to persons who have been duly admitted as members of the Bar (Sec. 1, Rule 138, Revised Rules of Court) is to subject the members to the discipline of the Supreme Court. Although respondent uses its business name, the persons and the lawyers who act for it are subject to court discipline. The practice of law is not a profession open to all who wish to engage in it nor can it be assigned to another (See 5 Am. Jur. 270). It is a personal right limited to persons who have qualified themselves under the law. It follows that not only respondent but also all the persons who are acting for respondent are the persons engaged in unethical law practice. 6 3. Philippine Lawyers' Association: The Philippine Lawyers' Association's position, in answer to the issues stated herein, are wit: 1. The Legal Clinic is engaged in the practice of law; 2. Such practice is unauthorized; 3. The advertisements complained of are not only unethical, but also misleading and patently immoral; and 4. The Honorable Supreme Court has the power to supress and punish the Legal Clinic and its corporate officers for its unauthorized practice of law and for its unethical, misleading and immoral advertising. xxx xxx xxx Respondent posits that is it not engaged in the practice of law. It claims that it merely renders "legal support services" to answers, litigants and the general public as enunciated in the Primary Purpose Clause of its Article(s) of Incorporation. (See pages 2 to 5 of Respondent's Comment). But its advertised services, as enumerated above, clearly and convincingly show that it is indeed engaged in law practice, albeit outside of court.

As advertised, it offers the general public its advisory services on Persons and Family Relations Law, particularly regarding foreign divorces, annulment of marriages, secret marriages, absence and adoption; Immigration Laws, particularly on visa related problems, immigration problems; the Investments Law of the Philippines and such other related laws. Its advertised services unmistakably require the application of the aforesaid law, the legal principles and procedures related thereto, the legal advices based thereon and which activities call for legal training, knowledge and experience. Applying the test laid down by the Court in the aforecited Agrava Case, the activities of respondent fall squarely and are embraced in what lawyers and laymen equally term as "the practice of law." 7 4. U.P. Women Lawyers' Circle: In resolving, the issues before this Honorable Court, paramount consideration should be given to the protection of the general public from the danger of being exploited by unqualified persons or entities who may be engaged in the practice of law. At present, becoming a lawyer requires one to take a rigorous four-year course of study on top of a four-year bachelor of arts or sciences course and then to take and pass the bar examinations. Only then, is a lawyer qualified to practice law. While the use of a paralegal is sanctioned in many jurisdiction as an aid to the administration of justice, there are in those jurisdictions, courses of study and/or standards which would qualify these paralegals to deal with the general public as such. While it may now be the opportune time to establish these courses of study and/or standards, the fact remains that at present, these do not exist in the Philippines. In the meantime, this Honorable Court may decide to make measures to protect the general public from being exploited by those who may be dealing with the general public in the guise of being "paralegals" without being qualified to do so. In the same manner, the general public should also be protected from the dangers which may be brought about by advertising of legal services. While it appears that lawyers are prohibited under the present Code of Professional Responsibility from advertising, it appears in the instant case that legal services are being advertised not by lawyers but by an entity staffed by "paralegals." Clearly, measures should be taken to protect the general public

from falling prey to those who advertise legal services without being qualified to offer such services. 8 A perusal of the questioned advertisements of Respondent, however, seems to give the impression that information regarding validity of marriages, divorce, annulment of marriage, immigration, visa extensions, declaration of absence, adoption and foreign investment, which are in essence, legal matters , will be given to them if they avail of its services. The Respondent's name The Legal Clinic, Inc. does not help matters. It gives the impression again that Respondent will or can cure the legal problems brought to them. Assuming that Respondent is, as claimed, staffed purely by paralegals, it also gives the misleading impression that there are lawyers involved in The Legal Clinic, Inc., as there are doctors in any medical clinic, when only "paralegals" are involved in The Legal Clinic, Inc. Respondent's allegations are further belied by the very admissions of its President and majority stockholder, Atty. Nogales, who gave an insight on the structure and main purpose of Respondent corporation in the aforementioned "Starweek" article." 9 5. Women Lawyer's Association of the Philippines: Annexes "A" and "B" of the petition are clearly advertisements to solicit cases for the purpose of gain which, as provided for under the above cited law, (are) illegal and against the Code of Professional Responsibility of lawyers in this country. Annex "A" of the petition is not only illegal in that it is an advertisement to solicit cases, but it is illegal in that in bold letters it announces that the Legal Clinic, Inc., could work out/cause the celebration of a secret marriage which is not only illegal but immoral in this country. While it is advertised that one has to go to said agency and pay P560 for a valid marriage it is certainly fooling the public for valid marriages in the Philippines are solemnized only by officers authorized to do so under the law. And to employ an agency for said purpose of contracting marriage is not necessary. No amount of reasoning that in the USA, Canada and other countries the trend is towards allowing lawyers to advertise their special skills to enable people to obtain from qualified practitioners legal services for their particular needs can justify the use of advertisements such as are the subject matter of the petition, for one (cannot) justify an illegal act even by whatever merit

the illegal act may serve. The law has yet to be amended so that such act could become justifiable. We submit further that these advertisements that seem to project that secret marriages and divorce are possible in this country for a fee, when in fact it is not so, are highly reprehensible. It would encourage people to consult this clinic about how they could go about having a secret marriage here, when it cannot nor should ever be attempted, and seek advice on divorce, where in this country there is none, except under the Code of Muslim Personal Laws in the Philippines. It is also against good morals and is deceitful because it falsely represents to the public to be able to do that which by our laws cannot be done (and) by our Code of Morals should not be done. In the case (of) In re Taguda, 53 Phil. 37, the Supreme Court held that solicitation for clients by an attorney by circulars of advertisements, is unprofessional, and offenses of this character justify permanent elimination from the Bar. 10 6. Federacion Internacional de Abogados: xxx xxx xxx 1.7 That entities admittedly not engaged in the practice of law, such as management consultancy firms or travel agencies, whether run by lawyers or not, perform the services rendered by Respondent does not necessarily lead to the conclusion that Respondent is not unlawfully practicing law. In the same vein, however, the fact that the business of respondent (assuming it can be engaged in independently of the practice of law) involves knowledge of the law does not necessarily make respondent guilty of unlawful practice of law. . . . . Of necessity, no one . . . . acting as a consultant can render effective service unless he is familiar with such statutes and regulations. He must be careful not to suggest a course of conduct which the law forbids. It seems . . . .clear that (the consultant's) knowledge of the law, and his use of that knowledge as a factor in determining what measures he shall recommend, do not constitute the practice of law . . . . It is not only presumed that all men know the law, but it is a fact that most men have considerable acquaintance with broad features of the law . . . . Our knowledge of the law accurate or inaccurate moulds our conduct not only when we are acting for ourselves, but when we are serving others. Bankers, liquor dealers and

laymen generally possess rather precise knowledge of the laws touching their particular business or profession. A good example is the architect, who must be familiar with zoning, building and fire prevention codes, factory and tenement house statutes, and who draws plans and specification in harmony with the law. This is not practicing law. But suppose the architect, asked by his client to omit a fire tower, replies that it is required by the statute. Or the industrial relations expert cites, in support of some measure that he recommends, a decision of the National Labor Relations Board. Are they practicing law? In my opinion, they are not, provided no separate fee is charged for the legal advice or information, and the legal question is subordinate and incidental to a major non-legal problem. It is largely a matter of degree and of custom. If it were usual for one intending to erect a building on his land to engage a lawyer to advise him and the architect in respect to the building code and the like, then an architect who performed this function would probably be considered to be trespassing on territory reserved for licensed attorneys. Likewise, if the industrial relations field had been pre-empted by lawyers, or custom placed a lawyer always at the elbow of the lay personnel man. But this is not the case. The most important body of the industrial relations experts are the officers and business agents of the labor unions and few of them are lawyers. Among the larger corporate employers, it has been the practice for some years to delegate special responsibility in employee matters to a management group chosen for their practical knowledge and skill in such matter, and without regard to legal thinking or lack of it. More recently, consultants like the defendants have the same service that the larger employers get from their own specialized staff. The handling of industrial relations is growing into a recognized profession for which appropriate courses are offered by our leading universities. The court should be very cautious about declaring [that] a widespread, wellestablished method of conducting business is unlawful, or that the considerable class of men who customarily perform a certain function have no right to do so, or that the technical education given by our schools cannot be used by the graduates in their business. In determining whether a man is practicing law, we should consider his work for any particular client or customer, as a whole. I can imagine defendant

being engaged primarily to advise as to the law defining his client's obligations to his employees, to guide his client's obligations to his employees, to guide his client along the path charted by law. This, of course, would be the practice of the law. But such is not the fact in the case before me. Defendant's primarily efforts are along economic and psychological lines. The law only provides the frame within which he must work, just as the zoning code limits the kind of building the limits the kind of building the architect may plan. The incidental legal advice or information defendant may give, does not transform his activities into the practice of law. Let me add that if, even as a minor feature of his work, he performed services which are customarily reserved to members of the bar, he would be practicing law. For instance, if as part of a welfare program, he drew employees' wills. Another branch of defendant's work is the representations of the employer in the adjustment of grievances and in collective bargaining, with or without a mediator. This is not per se the practice of law. Anyone may use an agent for negotiations and may select an agent particularly skilled in the subject under discussion, and the person appointed is free to accept the employment whether or not he is a member of the bar. Here, however, there may be an exception where the business turns on a question of law. Most real estate sales are negotiated by brokers who are not lawyers. But if the value of the land depends on a disputed right-of-way and the principal role of the negotiator is to assess the probable outcome of the dispute and persuade the opposite party to the same opinion, then it may be that only a lawyer can accept the assignment. Or if a controversy between an employer and his men grows from differing interpretations of a contract, or of a statute, it is quite likely that defendant should not handle it. But I need not reach a definite conclusion here, since the situation is not presented by the proofs. Defendant also appears to represent the employer before administrative agencies of the federal government, especially before trial examiners of the National Labor Relations Board. An agency of the federal government, acting by virtue of an authority granted by the Congress, may regulate the representation of parties before such agency. The State of New Jersey is without power to interfere with such determination or to forbid representation before the agency by one whom the agency admits. The rules of the National Labor Relations Board give to a party the right to appear in

person, or by counsel, or by other representative. Rules and Regulations, September 11th, 1946, S. 203.31. 'Counsel' here means a licensed attorney, and ther representative' one not a lawyer. In this phase of his work, defendant may lawfully do whatever the Labor Board allows, even arguing questions purely legal. (Auerbacher v. Wood, 53 A. 2d 800, cited in Statsky, Introduction to Paralegalism [1974], at pp. 154-156.). 1.8 From the foregoing, it can be said that a person engaged in a lawful calling (which may involve knowledge of the law) is not engaged in the practice of law provided that: (a) The legal question is subordinate and incidental to a major non-legal problem;. (b) The services performed are not customarily reserved to members of the bar; . (c) No separate fee is charged for the legal advice or information. All these must be considered in relation to the work for any particular client as a whole. 1.9. If the person involved is both lawyer and non-lawyer, the Code of Professional Responsibility succintly states the rule of conduct: Rule 15.08 A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity. 1.10. In the present case. the Legal Clinic appears to render wedding services (See Annex "A" Petition). Services on routine, straightforward marriages, like securing a marriage license, and making arrangements with a priest or a judge, may not constitute practice of law. However, if the problem is as complicated as that described in "Rx for Legal Problems" on the Sharon Cuneta-Gabby Concepcion-Richard Gomez case, then what may be involved is actually the practice of law. If a non-lawyer, such as the Legal Clinic, renders such services then it is engaged in the unauthorized practice of law. 1.11. The Legal Clinic also appears to give information on divorce, absence, annulment of marriage and visas (See Annexes "A" and "B" Petition). Purely giving informational materials may not constitute of law. The business is similar to that of a bookstore where the customer buys materials on the subject and determines on the subject and determines by himself what courses of action to take.

It is not entirely improbable, however, that aside from purely giving information, the Legal Clinic's paralegals may apply the law to the particular problem of the client, and give legal advice. Such would constitute unauthorized practice of law. It cannot be claimed that the publication of a legal text which publication of a legal text which purports to say what the law is amount to legal practice. And the mere fact that the principles or rules stated in the text may be accepted by a particular reader as a solution to his problem does not affect this. . . . . Apparently it is urged that the conjoining of these two, that is, the text and the forms, with advice as to how the forms should be filled out, constitutes the unlawful practice of law. But that is the situation with many approved and accepted texts. Dacey's book is sold to the public at large. There is no personal contact or relationship with a particular individual. Nor does there exist that relation of confidence and trust so necessary to the status of attorney and client. THIS IS THE ESSENTIAL OF LEGAL PRACTICE THE REPRESENTATION AND ADVISING OF A PARTICULAR PERSON IN A PARTICULAR SITUATION. At most the book assumes to offer general advice on common problems, and does not purport to give personal advice on a specific problem peculiar to a designated or readily identified person. Similarly the defendant's publication does not purport to give personal advice on a specific problem peculiar to a designated or readily identified person in a particular situation in their publication and sale of the kits, such publication and sale did not constitutes the unlawful practice of law . . . . There being no legal impediment under the statute to the sale of the kit, there was no proper basis for the injunction against defendant maintaining an office for the purpose of selling to persons seeking a divorce, separation, annulment or separation agreement any printed material or writings relating to matrimonial law or the prohibition in the memorandum of modification of the judgment against defendant having an interest in any publishing house publishing his manuscript on divorce and against his having any personal contact with any prospective purchaser. The record does fully support, however, the finding that for the change of $75 or $100 for the kit, the defendant gave legal advice in the course of personal contacts concerning particular problems which might arise in the preparation and presentation of the purchaser's asserted matrimonial cause of action or pursuit of other legal remedies and assistance in the preparation of

necessary documents (The injunction therefore sought to) enjoin conduct constituting the practice of law, particularly with reference to the giving of advice and counsel by the defendant relating to specific problems of particular individuals in connection with a divorce, separation, annulment of separation agreement sought and should be affirmed. (State v. Winder, 348, NYS 2D 270 [1973], cited in Statsky, supra at p. 101.). 1.12. Respondent, of course, states that its services are "strictly nondiagnostic, non-advisory. "It is not controverted, however, that if the services "involve giving legal advice or counselling," such would constitute practice of law (Comment, par. 6.2). It is in this light that FIDA submits that a factual inquiry may be necessary for the judicious disposition of this case. xxx xxx xxx 2.10. Annex "A" may be ethically objectionable in that it can give the impression (or perpetuate the wrong notion) that there is a secret marriage. With all the solemnities, formalities and other requisites of marriages (See Articles 2, et seq., Family Code), no Philippine marriage can be secret. 2.11. Annex "B" may likewise be ethically objectionable. The second paragraph thereof (which is not necessarily related to the first paragraph) fails to state the limitation that only "paralegal services?" or "legal support services", and not legal services, are available." 11 A prefatory discussion on the meaning of the phrase "practice of law" becomes exigent for the proper determination of the issues raised by the petition at bar. On this score, we note that the clause "practice of law" has long been the subject of judicial construction and interpretation. The courts have laid down general principles and doctrines explaining the meaning and scope of the term, some of which we now take into account. Practice of law means any activity, in or out of court, which requires the application of law, legal procedures, knowledge, training and experience. To engage in the practice of law is to perform those acts which are characteristic of the profession. Generally, to practice law is to give advice or render any kind of service that involves legal knowledge or skill. 12 The practice of law is not limited to the conduct of cases in court. It includes legal advice and counsel, and the preparation of legal instruments and contract by which legal rights are secured, although such matter may or may not be pending in a court. 13

In the practice of his profession, a licensed attorney at law generally engages in three principal types of professional activity: legal advice and instructions to clients to inform them of their rights and obligations, preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary layman, and appearance for clients before public tribunals which possess power and authority to determine rights of life, liberty, and property according to law, in order to assist in proper interpretation and enforcement of law. 14 When a person participates in the a trial and advertises himself as a lawyer, he is in the practice of law. 15 One who confers with clients, advises them as to their legal rights and then takes the business to an attorney and asks the latter to look after the case in court, is also practicing law. 16 Giving advice for compensation regarding the legal status and rights of another and the conduct with respect thereto constitutes a practice of law. 17 One who renders an opinion as to the proper interpretation of a statute, and receives pay for it, is, to that extent, practicing law. 18 In the recent case of Cayetano vs. Monsod, 19 after citing the doctrines in several cases, we laid down the test to determine whether certain acts constitute "practice of law," thus: Black defines "practice of law" as: The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law. The practice of law is not limited to the conduct of cases on court.(Land Title Abstract and Trust Co. v. Dworken , 129 Ohio St. 23, 193N. E. 650). A person is also considered to be in the practice of law when he: . . . . for valuable consideration engages in the business of advising person, firms, associations or corporations as to their right under the law, or appears in a representative capacity as an advocate in proceedings, pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle

controversies and there, in such representative capacity, performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v. C.S. Dudley and Co., 102 S. W. 2d 895, 340 Mo. 852). This Court, in the case of Philippines Lawyers Association v. Agrava (105 Phil. 173, 176-177),stated: The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters or estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). Practice of law under modern conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and

drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules o Court, Vol. 3 [1973 ed.], pp. 665-666, citing In Re Opinion of the Justices [Mass], 194 N. E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 197 A. 139, 144). The practice of law, therefore, covers a wide range of activities in and out of court. Applying the aforementioned criteria to the case at bar, we agree with the perceptive findings and observations of the aforestated bar associations that the activities of respondent, as advertised, constitute "practice of law." The contention of respondent that it merely offers legal support services can neither be seriously considered nor sustained. Said proposition is belied by respondent's own description of the services it has been offering, to wit: Legal support services basically consists of giving ready information by trained paralegals to laymen and lawyers, which are strictly non-diagnostic, non-advisory, through the extensive use of computers and modern information technology in the gathering, processing, storage, transmission and reproduction of information and communication, such as computerized legal research; encoding and reproduction of documents and pleadings prepared by laymen or lawyers; document search; evidence gathering; locating parties or witnesses to a case; fact finding investigations; and assistance to laymen in need of basic institutional services from government or non-government agencies, like birth, marriage, property, or business registrations; educational or employment records or certifications, obtaining documentation like clearances, passports, local or foreign visas; giving information about laws of other countries that they may find useful, like foreign divorce, marriage or adoption laws that they can avail of preparatory to emigration to the foreign country, and other matters that do not involve representation of clients in court; designing and installing computer systems, programs, or software for the efficient management of law offices, corporate legal departments, courts and other entities engaged in dispensing or administering legal services. 20 While some of the services being offered by respondent corporation merely involve mechanical and technical knowhow, such as the installation of

computer systems and programs for the efficient management of law offices, or the computerization of research aids and materials, these will not suffice to justify an exception to the general rule. What is palpably clear is that respondent corporation gives out legal information to laymen and lawyers. Its contention that such function is nonadvisory and non-diagnostic is more apparent than real. In providing information, for example, about foreign laws on marriage, divorce and adoption, it strains the credulity of this Court that all the respondent corporation will simply do is look for the law, furnish a copy thereof to the client, and stop there as if it were merely a bookstore. With its attorneys and so called paralegals, it will necessarily have to explain to the client the intricacies of the law and advise him or her on the proper course of action to be taken as may be provided for by said law. That is what its advertisements represent and for the which services it will consequently charge and be paid. That activity falls squarely within the jurisprudential definition of "practice of law." Such a conclusion will not be altered by the fact that respondent corporation does not represent clients in court since law practice, as the weight of authority holds, is not limited merely giving legal advice, contract drafting and so forth. The aforesaid conclusion is further strengthened by an article published in the January 13, 1991 issue of the Starweek/The Sunday Magazine of the Philippines Star, entitled "Rx for Legal Problems," where an insight into the structure, main purpose and operations of respondent corporation was given by its own "proprietor," Atty. Rogelio P. Nogales: This is the kind of business that is transacted everyday at The Legal Clinic, with offices on the seventh floor of the Victoria Building along U. N. Avenue in Manila. No matter what the client's problem, and even if it is as complicated as the Cuneta-Concepcion domestic situation, Atty. Nogales and his staff of lawyers, who, like doctors are "specialists" in various fields can take care of it. The Legal Clinic, Inc. has specialists in taxation and criminal law, medico-legal problems, labor, litigation, and family law. These specialist are backed up by a battery of paralegals, counsellors and attorneys. Atty. Nogales set up The Legal Clinic in 1984. Inspired by the trend in the medical field toward specialization, it caters to clients who cannot afford the services of the big law firms.

The Legal Clinic has regular and walk-in clients. "when they come, we start by analyzing the problem. That's what doctors do also. They ask you how you contracted what's bothering you, they take your temperature, they observe you for the symptoms and so on. That's how we operate, too. And once the problem has been categorized, then it's referred to one of our specialists. There are cases which do not, in medical terms, require surgery or follow-up treatment. These The Legal Clinic disposes of in a matter of minutes. "Things like preparing a simple deed of sale or an affidavit of loss can be taken care of by our staff or, if this were a hospital the residents or the interns. We can take care of these matters on a while you wait basis. Again, kung baga sa hospital, out-patient, hindi kailangang ma-confine. It's just like a common cold or diarrhea," explains Atty. Nogales. Those cases which requires more extensive "treatment" are dealt with accordingly. "If you had a rich relative who died and named you her sole heir, and you stand to inherit millions of pesos of property, we would refer you to a specialist in taxation. There would be real estate taxes and arrears which would need to be put in order, and your relative is even taxed by the state for the right to transfer her property, and only a specialist in taxation would be properly trained to deal with the problem. Now, if there were other heirs contesting your rich relatives will, then you would need a litigator, who knows how to arrange the problem for presentation in court, and gather evidence to support the case. 21 That fact that the corporation employs paralegals to carry out its services is not controlling. What is important is that it is engaged in the practice of law by virtue of the nature of the services it renders which thereby brings it within the ambit of the statutory prohibitions against the advertisements which it has caused to be published and are now assailed in this proceeding. Further, as correctly and appropriately pointed out by the U.P. WILOCI, said reported facts sufficiently establish that the main purpose of respondent is to serve as a one-stop-shop of sorts for various legal problems wherein a client may avail of legal services from simple documentation to complex litigation and corporate undertakings. Most of these services are undoubtedly beyond the domain of paralegals, but rather, are exclusive functions of lawyers engaged in the practice of law. 22

It should be noted that in our jurisdiction the services being offered by private respondent which constitute practice of law cannot be performed by paralegals. Only a person duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of the Rules of Court, and who is in good and regular standing, is entitled to practice law. 23 Public policy requires that the practice of law be limited to those individuals found duly qualified in education and character. The permissive right conferred on the lawyers is an individual and limited privilege subject to withdrawal if he fails to maintain proper standards of moral and professional conduct. The purpose is to protect the public, the court, the client and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court. 24 The same rule is observed in the american jurisdiction wherefrom respondent would wish to draw support for his thesis. The doctrines there also stress that the practice of law is limited to those who meet the requirements for, and have been admitted to, the bar, and various statutes or rules specifically so provide. 25 The practice of law is not a lawful business except for members of the bar who have complied with all the conditions required by statute and the rules of court. Only those persons are allowed to practice law who, by reason of attainments previously acquired through education and study, have been recognized by the courts as possessing profound knowledge of legal science entitling them to advise, counsel with, protect, or defend the rights claims, or liabilities of their clients, with respect to the construction, interpretation, operation and effect of law. 26 The justification for excluding from the practice of law those not admitted to the bar is found, not in the protection of the bar from competition, but in the protection of the public from being advised and represented in legal matters by incompetent and unreliable persons over whom the judicial department can exercise little control. 27 We have to necessarily and definitely reject respondent's position that the concept in the United States of paralegals as an occupation separate from the law profession be adopted in this jurisdiction. Whatever may be its merits, respondent cannot but be aware that this should first be a matter for judicial rules or legislative action, and not of unilateral adoption as it has done.

Paralegals in the United States are trained professionals. As admitted by respondent, there are schools and universities there which offer studies and degrees in paralegal education, while there are none in the Philippines.28 As the concept of the "paralegals" or "legal assistant" evolved in the United States, standards and guidelines also evolved to protect the general public. One of the major standards or guidelines was developed by the American Bar Association which set up Guidelines for the Approval of Legal Assistant Education Programs (1973). Legislation has even been proposed to certify legal assistants. There are also associations of paralegals in the United States with their own code of professional ethics, such as the National Association of Legal Assistants, Inc. and the American Paralegal Association. 29 In the Philippines, we still have a restricted concept and limited acceptance of what may be considered as paralegal service. As pointed out by FIDA, some persons not duly licensed to practice law are or have been allowed limited representation in behalf of another or to render legal services, but such allowable services are limited in scope and extent by the law, rules or regulations granting permission therefor. 30

ESTRELLITA vs. ORTIZ

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

6/19/2012 1:18:00 AM

G.R. No. 126603 June 29, 1998 ESTRELLITA J. TAMANO, petitioner, vs. HON. RODOLFO A. ORTIZ, Presiding Judge, RTC-Br. 89, Quezon City, HAJA PUTRI ZORAYDA A. TAMANO, ADIB A. TAMANO and the HON. COURT OF APPEALS, respondents. BELLOSILLO, J.: This Petition for Review on Certiorari seeks to reverse and set aside the decision of the Court of Appeals of 30 September 1996 in CA-G.R. SP. No. 39656 which affirmed the decision of the Regional Trial Court-Br. 89, Quezon City, denying the motion to dismiss as well as the motion for reconsideration filed by petitioner Estrellita J. Tamano. On 31 May 1958 Senator Mamintal Abdul Jabar Tamano (Tamano) married private respondent Haja Putri Zorayda A. Tamano (Zorayda) in civil rites. Their marriage supposedly remained valid and subsisting until his death on 18 May 1994. Prior to his death, particularly on 2 June 1993, Tamano also married petitioner Estrellita J. Tamano (Estrellita) in civil rites in Malabang, Lanao del Sur. On 23 November 1994 private respondent Zorayda joined by her son Adib A. Tamano (Adib) filed a Complaint for Declaration of Nullify of Marriage of Tamano and Estrellita on the ground that it was bigamous. They contended that Tamano and Estrellita misrepresented themselves as divorced and single, respectively, thus making the entries in the marriage contract false and fraudulent. Private respondents alleged that Tamano never divorced Zorayda and that Estrellita was not single when she married Tamano as the decision annulling her previous marriage with Romeo C. Llave never became final and executory for non-compliance with publication requirements. Estrellita filed a motion to dismiss alleging that the Regional Trial Court of Quezon City was without jurisdiction over the subject and nature of the

action. She alleged that "only a party to the marriage" could file an action forannulment of marriage against the other spouse, 1 hence, it was only Tamano who could file an action for annulment of their marriage. Petitioner likewise contended that since Tamano and Zorayda were both Muslims and married in Muslim rites the jurisdiction to hear and try the instant case was vested in the shari'a courts pursuant to Art. 155 of the Code of Muslim Personal Laws. The lower court denied the motion to dismiss and ruled that the instant case was properly cognizable by the Regional Trial Court of Quezon City since Estrellita and Tamano were married in accordance with the Civil Code and not exclusively in accordance with PD No. 1083 2 or the Code of Muslim Personal laws. The motion for reconsideration was likewise denied; hence, petitioner filed the instant petition with this Court seeking to set aside the 18 July 1995 order of respondent presiding judge of the RTC-Br. 89, Quezon City, denying petitioner's motion to dismiss and the 22 August 1995 order denying reconsideration thereof. In a Resolution dated 13 December 1995 we referred the case to the Court of Appeals for consolidation with G.R. No. 118371. Zorayda and Adib A. Tamano however filed a motion, which the Court of Appeals granted, to resolve the Complaint for Declaration of Nullity of Marriage ahead of the other consolidated cases. The Court of Appeals ruled that the instant case would fall under the exclusive jurisdiction of shari'a courts only when filed in places where there are shari'a court. But in places where there are no shari'a courts, like Quezon City, the instant case could properly be filed before the Regional Trial Court. Petitioner is now before us reiterating her earlier argument that it is the shari'a court and not the Regional Trial Court which has jurisdiction over the subject and nature of the action. Under The Judiciary Reorganization Act of 1980, 3 Regional Trial Courts have jurisdiction over all actions involving the contract of marriage and marital relations. 4 Personal actions, such as the instant complaint for declaration of nullity of marriage, may be commenced and tried where the plaintiff or any of the principal plaintiffsresides, or where the defendant or any of the principal defendants resides, at the election of the plaintiff. 5 There should be no question by now that what determines the nature of an action and

correspondingly the court which has jurisdiction over it are the allegations made by the plaintiff in this case. 6 In the complaint for declaration of nullity of marriage filed by private respondents herein, it was alleged that Estrellita and Tamano were married in accordance with the provisions of the Civil Code. Never was it mentioned that Estrellita and Tamano were married under Muslim laws or PD No. 1083. Interestingly, Estrellita never stated in her Motion to Dismiss that she and Tamano were married under Muslim laws. That she was in fact married to Tamano under Muslim laws was first mentioned only in her Motion for Reconsideration. Nevertheless, the Regional Trial Court was not divested of jurisdiction to hear and try the instant case despite the allegation in the Motion for Reconsideration that Estrellita and Tamano were likewise married in Muslim rites. This is because a court's jurisdiction cannot be made to depend upon defenses set up in the answer, in a motion to dismiss, or in a motion for reconsideration, but only upon the allegations of the complaint. 7 Jurisdiction over the subject matter of a case is determined from the allegations of the complaint as the latter comprises a concise statement of the ultimate facts constituting the plaintiff's causes of action. 8 Petitioner argues that the shari'a courts have jurisdiction over the instant suit pursuant to Art. 13, Title II, PD No. 1083, 9 which provides Art. 13. Application. (1) The provisions of this Title shall apply to marriage and divorce wherein both parties are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law or this Code in any part of the Philippines. (2) In case of a marriage between a Muslim and a non-Muslim, solemnized not in accordance with Muslim law or this Code, the Civil Code of the Philippines shall apply. (3) Subject to the provisions of the preceding paragraphs, the essential requisites and legal impediments to marriage, divorce, paternity and filiation, guardianship and custody of minors, support and maintenance, claims for customary dower (mahr), betrothal, breach of contract to marry, solemnization and registration of marriage and divorce, rights and obligations between husband and wife, parental authority, and the property relations between husband and wife shall be governed by this Code and other applicable Muslim laws.

As alleged in the complaint, petitioner and Tamano were married in accordance with the Civil Code. Hence, contrary to the position of petitioner, the Civil Code is applicable in the instant case. Assuming that indeed petitioner and Tamano were likewise married under Muslim laws, the same would still fall under the general original jurisdiction of the Regional Trial Courts. Article 13 of PD No. 1083 does not provide for a situation where the parties were married both in civil and Muslim rites. Consequently, the shari'a courts are not vested with original and exclusive jurisdiction when it comes to marriages celebrated under both civil and Muslim laws. Consequently, the Regional Trial Courts are not divested of their general original jurisdiction under Sec. 19, par. (6) of BP Blg. 129 which provides Sec. 19. Jurisdiction in Civil Cases. Regional Trial Courts shall exercise exclusive original jurisdiction: . . . (6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasijudicial functions . . . WHEREFORE, the instant petition is DENIED. The decision of the Court of Appeals sustaining the 18 July 1995 and 22 August 1995 orders of the Regional Trial Court Br. 89, Quezon City, denying the motion to dismiss and reconsideration thereof, is AFFIRMED. Let the records of this case be immediately remanded to the court of origin for further proceedings until terminated. SO ORDERED. Davide, Jr., Vitug, Panganiban and Quisumbing, JJ., concur. Footnotes 1 Motion to Dismiss, p. 3; Rollo, p. 52. 2 Order, p. 2; Records, p. 20. 3 Sec. 79, BP 129 as amended. 4 Sec. 19, B.P. Blg. 129, as amended, otherwise known as The Judiciary Reorganization Act of 1980. 5 Sec. 2, Rule 4, 1997 Rules of Civil Procedure, as amended. 6 Sandel v. Court of Appeals, G.R. No. 117250, 19 September 1996, 262 SCRA 109. 7 Id., p. 110. 8 Bernardo v. Court of Appeals, G.R. No. 120730, 28 October 1996, 263 SCRA 660.

9 The Code of Muslim Personal Laws of the Philippines.

FABIAN vs. DISIERTO

Republic of the Philippines SUPREME COURT Manila EN BANC

6/19/2012 1:18:00 AM

G.R. No. 129742 September 16, 1998 TERESITA G. FABIAN, petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as Ombudsman; HON. JESUS F. GUERRERO, in his capacity as Deputy Ombudsman for Luzon; and NESTOR V. AGUSTIN, respondents. REGALADO, J.: Petitioner has appealed to us by certiorari under Rule 45 of the Rules of Court from the "Joint Order" issued by public respondents on June 18, 1997 in OMB-Adm. Case No. 0-95-0411 which granted the motion for reconsideration of and absolved private respondent from administrative charges for inter alia grave misconduct committed by him as then Assistant Regional Director, Region IV-A, Department of Public Works and Highways (DPWH). I It appears from the statement and counter-statement of facts of the parties that petitioner Teresita G. Fabian was the major stockholder and president of PROMAT Construction Development Corporation (PROMAT) which was engaged in the construction business. Private respondent Nestor V. Agustin was the incumbent District Engineer of the First Metro Manila Engineering District (FMED) when he allegedly committed the offenses for which he was administratively charged in the Office of the Ombudsman. PROMAT participated in the bidding for government construction projects including those under the FMED, and private respondent, reportedly taking advantage of his official position, inveigled petitioner into an amorous relationship. Their affair lasted for some time, in the course of which private respondent gifted PROMAT with public works contracts and interceded for it in problems concerning the same in his office. Later, misunderstandings and unpleasant incidents developed between the parties and when petitioner tried to terminate their relationship, private

respondent refused and resisted her attempts to do so to the extent of employing acts of harassment, intimidation and threats. She eventually filed the aforementioned administrative case against him in a letter-complaint dated July 24, 1995. The said complaint sought the dismissal of private respondent for violation of Section 19, Republic Act No. 6770 (Ombudsman Act of 1989) and Section 36 of Presidential Decree No. 807 (Civil Service Decree), with an ancillary prayer for his preventive suspension. For purposes of this case, the charges referred to may be subsumed under the category of oppression, misconduct, and disgraceful or immoral conduct. On January 31, 1996, Graft Investigator Eduardo R. Benitez issued a resolution finding private respondent guilty of grave misconduct and ordering his dismissal from the service with forfeiture of all benefits under the law. His resolution bore the approval of Director Napoleon Baldrias and Assistant Ombudsman Abelardo Aportadera of their office. Herein respondent Ombudsman, in an Order dated February 26, 1996, approved the aforesaid resolution with modifications, by finding private respondent guilty of misconduct and meting out the penalty of suspension without pay for one year. After private respondent moved for reconsideration, respondent Ombudsman discovered that the former's new counsel had been his "classmate and close associate" hence he inhibited himself. The case was transferred to respondent Deputy Ombudsman Jesus F. Guerrero who, in the now challenged Joint Order of June 18, 1997, set aside the February 26, 1997 Order of respondent Ombudsman and exonerated private respondent from the administrative charges. II In the present appeal, petitioner argues that Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989) 1 pertinently provides that In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court (Emphasis supplied) However, she points out that under Section 7, Rule III of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman), 2 when a

respondent is absolved of the charges in an administrative proceeding the decision of the Ombudsman is final and unappealable. She accordingly submits that the Office of the Ombudsman has no authority under the law to restrict, in the manner provided in its aforesaid Rules, the right of appeal allowed by Republic Act No. 6770, nor to limit the power of review of this Court. Because of the aforecited provision in those Rules of Procedure, she claims that she found it "necessary to take an alternative recourse under Rule 65 of the Rules of Court, because of the doubt it creates on the availability of appeal under Rule 45 of the Rules of Court. Respondents filed their respective comments and rejoined that the Office of the Ombudsman is empowered by the Constitution and the law to promulgate its own rules of procedure. Section 13(8), Article XI of the 1987 Constitution provides, among others, that the Office of the Ombudsman can "(p)romulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law." Republic Act No. 6770 duly implements the Constitutional mandate with these relevant provisions: Sec. 14. Restrictions. . . . No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman except the Supreme Court on pure questions of law. xxx xxx xxx Sec. 18. Rules of Procedure. (1) The Office of the Ombudsman shall promulgate its own rules of procedure for the effective exercise or performance of its powers, functions, and duties. xxx xxx xxx Sec. 23. Formal Investigation. (1) Administrative investigations by the Office of the Ombudsman shall be in accordance with its rules of procedure and consistent with due process. . . . . xxx xxx xxx Sec. 27. Effectivity and Finality of Decisions. All previsionary orders at the Office of the Ombudsman are immediately effective and executory. A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on any of the following grounds: xxx xxx xxx

Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month salary shall be final and unappealable. In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court. The above rules may be amended or modified by the Office of the Ombudsman as the interest of justice may require. Respondents consequently contend that, on the foregoing constitutional and statutory authority, petitioner cannot assail the validity of the rules of procedure formulated by the Office of the Ombudsman governing the conduct of proceedings before it, including those rules with respect to the availability or non-availability of appeal in administrative cases, such as Section 7, Rule III of Administrative Order No. 07. Respondents also question the propriety of petitioner's proposition that, although she definitely prefaced her petition by categorizing the same as "an appeal by certiorari under Rule 45 of the Rules of Court," she makes the aforequoted ambivalent statement which in effect asks that, should the remedy under Rule 45 be unavailable, her petition be treated in the alternative as an original action for certiorari under Rule 65. The parties thereafter engage in a discussion of the differences between a petition for review on certiorari under Rule 45 and a special civil action of certiorari under Rule 65. Ultimately, they also attempt to review and rationalize the decisions of this Court applying Section 27 of Republic Act. No. 6770 vis-a-vis Section 7, Rule III of Administrative Order No. 07. As correctly pointed out by public respondent, Ocampo IV vs. Ombudsman, et al. 3 and Young vs. Office of the Ombudsman, et al. 4 were original actions for certiorari under Rule 65.Yabut vs. Office of the Ombudsman, et al. 5 was commenced by a petition for review on certiorari under Rule 45. Then came Cruz, Jr. vs. People, et al., 6 Olivas vs. Office of the Ombudsman, et al., 7 Olivarez vs. Sandiganbayan, et al., 8 andJao, et al. vs. Vasquez, 9 which were for certiorari, prohibition and/or mandamus under Rule 65. Alba vs.

Nitorreda, et al. 10was initiated by a pleading unlikely denominated as an "Appeal/Petition for Certiorari and/or Prohibition," with a prayer for ancillary remedies, and ultimately followed by Constantino vs. Hon. Ombudsman Aniano Desierto, et al. 11 which was a special civil action for certiorari. Considering, however, the view that this Court now takes of the case at bar and the issues therein which will shortly be explained, it refrains from preemptively resolving the controverted points raised by the parties on the nature and propriety of application of the writ of certiorari when used as a mode of appeal or as the basis of a special original action, and whether or not they may be resorted to concurrently or alternatively, obvious though the answers thereto appear to be. Besides, some seemingly obiter statements in Yabut and Alba could bear reexamination and clarification. Hence, we will merely observe and lay down the rule at this juncture that Section 27 of Republic Act No. 6770 is involved only whenever an appeal by certiorari under Rule 45 is taken from a decision in an administrative disciplinary action. It cannot be taken into account where an original action forcertiorari under Rule 65 is resorted to as a remedy for judicial review, such as from an incident in a criminal action. III After respondents' separate comments had been filed, the Court was intrigued by the fact, which does not appear to have been seriously considered before, that the administrative liability of a public official could fall under the jurisdiction of both the Civil Service Commission and the Office of the Ombudsman. Thus, the offenses imputed to herein private respondent were based on both Section 19 of Republic Act No. 6770 and Section 36 of Presidential Decree No. 807. Yet, pursuant to the amendment of Section 9, Batas Pambansa Blg. 129 by Republic Act No. 7902, all adjudications by the Civil Service Commission in administrative disciplinary cases were made appealable to the Court of Appeals effective March 18, 1995, while those of the Office of the Ombudsman are appealable to this Court. It could thus be possible that in the same administrative case involving two respondents, the proceedings against one could eventually have been elevated to the Court of Appeals, while the other may have found its way to the Ombudsman from which it is sought to be brought to this Court. Yet systematic and efficient case management would dictate the consolidation of

those cases in the Court of Appeals, both for expediency and to avoid possible conflicting decisions. Then there is the consideration that Section 30, Article VI of the 1987 Constitution provides that "(n)o law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and consent," and that Republic Act No. 6770, with its challenged Section 27, took effect on November 17, 1989, obviously in spite of that constitutional prohibition. The conventional rule, however, is that a challenge on constitutional grounds must be raised by a party to the case, neither of whom did so in this case, but that is not an inflexible rule, as we shall explain. Since the constitution is intended for the observance of the judiciary and other departments of the government and the judges are sworn to support its provisions; the courts are not at liberty to overlook or disregard its commands or countenance evasions thereof. When it is clear that a statute transgresses the authority vested in a legislative body, it is the duty of the courts to declare that the constitution, and not the statute, governs in a case before them for judgment. 12 Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in the pleadings, 13 the rule has been recognized to admit of certain exceptions. It does not preclude a court from inquiring into its own jurisdiction or compel it to enter a judgment that it lacks jurisdiction to enter. If a statute on which a court's jurisdiction in a proceeding depends is unconstitutional, the court has no jurisdiction in the proceeding, and since it may determine whether or not it has jurisdiction, it necessarily follows that it may inquire into the constitutionality of the statute. 14 Constitutional questions, not raised in the regular and orderly procedure in the trial are ordinarily rejected unless the jurisdiction of the court below or that of the appellate court is involved in which case it may be raised at any time or on the court's own motion. 15 The Court ex mero motu may take cognizance of lack of jurisdiction at any point in the case where that fact is developed. 16 The court has a clearly recognized right to determine its own jurisdiction in any proceeding. 17 The foregoing authorities notwithstanding, the Court believed that the parties hereto should be further heard on this constitutional question.

Correspondingly, the following resolution was issued on May 14, 1998, the material parts stating as follows: The Court observes that the present petition, from the very allegations thereof, is "an appeal bycertiorari under Rule 45 of the Rules of Court from the "Joint Order (Re: Motion for Reconsideration)" issued in OMB-Adm. Case No. 0-95-0411, entitled "Teresita G. Fabian vs. Engr. Nestor V. Agustin, Asst. Regional Director, Region IV-A, EDSA, Quezon City," which absolved the latter from the administrative charges for grave misconduct, among others. It is further averred therein that the present appeal to this Court is allowed under Section 27 of the Ombudsman Act of 1987 (R.A. No. 6770) and, pursuant thereto, the Office of the Ombudsman issued its Rules of Procedure, Section 7 whereof is assailed by petitioner in this proceeding. It will be recalled that R.A. No. 6770 was enacted on November 17, 1989, with Section 27 thereof pertinently providing that all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to this Court in accordance with Rule 45 of the Rules of Court. The Court notes, however, that neither the petition nor the two comments thereon took into account or discussed the validity of the aforestated Section 27 of R.A. No. 8770 in light of the provisions of Section 30, Article VI of the 1987 Constitution that "(n)o law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and consent." The Court also invites the attention of the parties to its relevant ruling in First Lepanto Ceramics, Inc. vs. The Court of Appeals, et al. (G.R. No. 110571, October 7, 1994, 237 SCRA 519) and the provisions of its former Circular No. 1-91 and Revised Administrative Circular No. 1-95, as now substantially reproduced in Rule 43 of the 1997 revision of the Rules of Civil Procedure. In view of the fact that the appellate jurisdiction of the Court is invoked and involved in this case, and the foregoing legal considerations appear to impugn the constitutionality and validity of the grant of said appellate jurisdiction to it, the Court deems it necessary that the parties be heard thereon and the issue be first resolved before conducting further proceedings in this appellate review.

ACCORDINGLY, the Court Resolved to require the parties to SUBMIT their position and arguments on the matter subject of this resolution by filing their corresponding pleadings within ten (10) days from notice hereof. IV The records do not show that the Office of the Solicitor General has complied with such requirement, hence the Court dispenses with any submission it should have presented. On the other hand, petitioner espouses the theory that the provision in Section 27 of Republic Act No. 6770 which authorizes an appeal by certiorari to this Court of the aforementioned adjudications of the Office of the Ombudsman is not violative of Section 30, Article VI of the Constitution. She claims that what is proscribed is the passage of a law "increasing" the appellate jurisdiction of this Court "as provided in this Constitution," and such appellate jurisdiction includes "all cases in which only an error or question of law is involved." Since Section 5(2)(e), Article VIII of the Constitution authorizes this Court to review, revise, reverse, modify, or affirm on appeal or certiorari the aforesaid final judgment or orders "as the law or the Rules of Court may provide," said Section 27 does not increase this Court's appellate jurisdiction since, by providing that the mode of appeal shall be by petition for certiorari under Rule 45, then what may be raised therein are only questions of law of which this Court already has jurisdiction. We are not impressed by this discourse. It overlooks the fact that by jurisprudential developments over the years, this Court has allowed appeals by certiorari under Rule 45 in a substantial number of cases and instances even if questions of fact are directly involved and have to be resolved by the appellate court. 18 Also, the very provision cited by petitioner specifies that the appellate jurisdiction of this Court contemplated therein is to be exercised over "final judgments and orders of lower courts," that is, the courts composing the integrated judicial system. It does not include the quasi-judicial bodies or agencies, hence whenever the legislature intends that the decisions or resolutions of the quasi-judicial agency shall be reviewable by the Supreme Court or the Court of Appeals, a specific provision to that effect is included in the law creating that quasi-judicial agency and, for that matter, any special statutory court. No such provision on appellate procedure is required for the regular courts of the integrated

judicial system because they are what are referred to and already provided for, in Section 5, Article VIII of the Constitution. Apropos to the foregoing, and as correctly observed by private respondent, the revised Rules of Civil Procedure 19 preclude appeals from quasi-judicial agencies to the Supreme Court via a petition for review on certiorari under Rule 45. In the 1997 Rules of Civil Procedure, Section 1 of Rule 45, on "Appeal by Certiorari to the Supreme Court," explicitly states: Sec. 1. Filing of petition with Supreme Court. A person desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. (Emphasis ours). This differs from the former Rule 45 of the 1964 Rules of Court which made mention only of the Court of Appeals, and had to be adopted in statutes creating and providing for appeals from certain administrative or quasijudicial agencies, whenever the purpose was to restrict the scope of the appeal to questions of law. That intended limitation on appellate review, as we have just discussed, was not fully subserved by recourse to the former Rule 45 but, then, at that time there was no uniform rule on appeals from quasi-judicial agencies. Under the present Rule 45, appeals may be brought through a petition for review on certiorari but only from judgments and final orders of the courts enumerated in Section 1 thereof. Appeals from judgments and final orders of quasi-judicial agencies 20 are now required to be brought to the Court of Appeals on a verified petition for review, under the requirements and conditions in Rule 43 which was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-judicial agencies. 21 It is suggested, however, that the provisions of Rule 43 should apply only to "ordinary" quasi-judicial agencies, but not to the Office of the Ombudsman which is a "high constitutional body." We see no reason for this distinction for, if hierarchical rank should be a criterion, that proposition thereby disregards the fact that Rule 43 even includes the Office of the President and the Civil Service Commission, although the latter is even an independent constitutional commission, unlike the Office of the Ombudsman which is a constitutionally-mandated but statutorily created body.

Regarding the misgiving that the review of the decision of the Office of the Ombudsman by the Court of Appeals would cover questions of law, of fact or of both, we do not perceive that as an objectionable feature. After all, factual controversies are usually involved in administrative disciplinary actions, just like those coming from the Civil Service Commission, and the Court of Appeals as a trier of fact is better prepared than this Court to resolve the same. On the other hand, we cannot have this situation covered by Rule 45 since it now applies only to appeals from the regular courts. Neither can we place it under Rule 65 since the review therein is limited to jurisdictional questions. * The submission that because this Court has taken cognizance of cases involving Section 27 of Republic Act No. 6770, that fact may be viewed as "acquiescence" or "acceptance" by it of the appellate jurisdiction contemplated in said Section 27, is unfortunately too tenuous. The jurisdiction of a court is not a question of acquiescence as a matter of fact but an issue of conferment as a matter of law. Besides, we have already discussed the cases referred to, including the inaccuracies of some statements therein, and we have pointed out the instances when Rule 45 is involved, hence covered by Section 27 of Republic Act No. 6770 now under discussion, and when that provision would not apply if it is a judicial review under Rule 65. Private respondent invokes the rule that courts generally avoid having to decide a constitutional question, especially when the case can be decided on other grounds. As a general proposition that is correct. Here, however, there is an actual case susceptible of judicial determination. Also, the constitutional question, at the instance of this Court, was raised by the proper parties, although there was even no need for that because the Court can rule on the matter sua sponte when its appellate jurisdiction is involved. The constitutional question was timely raised, although it could even be raised any time likewise by reason of the jurisdictional issue confronting the Court. Finally, the resolution of the constitutional issue here is obviously necessary for the resolution of the present case. 22 It is, however, suggested that this case could also be decided on other grounds, short of passing upon the constitutional question. We appreciate the ratiocination of private respondent but regret that we must reject the same. That private respondent could be absolved of the charge because the

decision exonerating him is final and unappealable assumes that Section 7, Rule III of Administrative Order No. 07 is valid, but that is precisely one of the issues here. The prevailing rule that the Court should not interfere with the discretion of the Ombudsman in prosecuting or dismissing a complaint is not applicable in this administrative case, as earlier explained. That two decisions rendered by this Court supposedly imply the validity of the aforementioned Section 7 of Rule III is precisely under review here because of some statements therein somewhat at odds with settled rules and the decisions of this Court on the same issues, hence to invoke the same would be to beg the question. V Taking all the foregoing circumstances in their true legal roles and effects, therefore, Section 27 of Republic Act No. 6770 cannot validly authorize an appeal to this Court from decisions of the Office of the Ombudsman in administrative disciplinary cases. It consequently violates the proscription in Section 30, Article VI of the Constitution against a law which increases the appellate jurisdiction of this Court. No countervailing argument has been cogently presented to justify such disregard of the constitutional prohibition which, as correctly explained in First Lepanto Ceramics, Inc. vs. The Court of Appeals, et al.23 was intended to give this Court a measure of control over cases placed under its appellate jurisdiction. Otherwise, the indiscriminate enactment of legislation enlarging its appellate jurisdiction would unnecessarily burden the Court. 24 We perforce have to likewise reject the supposed inconsistency of the ruling in First Lepanto Ceramics and some statements in Yabut and Alba, not only because of the difference in the factual settings, but also because those isolated cryptic statements in Yabut and Alba should best be clarified in the adjudication on the merits of this case. By way of anticipation, that will have to be undertaken by the proper court of competent jurisdiction. Furthermore, in addition to our preceding discussion on whether Section 27 of Republic Act No. 6770 expanded the jurisdiction of this Court without its advice and consent, private respondent's position paper correctly yields the legislative background of Republic Act No. 6770. On September 26, 1989, the Conference Committee Report on S.B. No. 453 and H.B. No. 13646, setting forth the new version of what would later be Republic Act No. 6770, was approved on second reading by the House of Representatives. 25 The

Senate was informed of the approval of the final version of the Act on October 2, 1989 26 and the same was thereafter enacted into law by President Aquino on November 17, 1989. Submitted with said position paper is an excerpt showing that the Senate, in the deliberations on the procedure for appeal from the Office of the Ombudsman to this Court, was aware of the provisions of Section 30, Article III of the Constitution. It also reveals that Senator Edgardo Angara, as a coauthor and the principal sponsor of S.B. No. 543 admitted that the said provision will expand this Court's jurisdiction, and that the Committee on Justice and Human Rights had not consulted this Court on the matter, thus: INTERPELLATION OF SENATOR SHAHANI xxx xxx xxx Thereafter, with reference to Section 22(4) which provides that the decisions of the Office of the Ombudsman may be appealed to the Supreme Court, in reply to Senator Shahani's query whether the Supreme Court would agree to such provision in the light of Section 30, Article VI of the Constitution which requires its advice and concurrence in laws increasing its appellate jurisdiction, Senator Angara informed that the Committee has not yet consulted the Supreme Court regarding the matter. He agreed that the provision will expand the Supreme Court's jurisdiction by allowing appeals through petitions for review, adding that they should be appeals on certiorari. 27 There is no showing that even up to its enactment, Republic Act No. 6770 was ever referred to this Court for its advice and consent. 28 VI As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under the provisions of Rule 43. There is an intimation in the pleadings, however, that said Section 27 refers to appellate jurisdiction which, being substantive in nature, cannot be disregarded by this Court under its rule-making power, especially if it results in a diminution, increase or modification of substantive rights. Obviously, however, where the law is procedural in essence and purpose, the foregoing

consideration would not pose a proscriptive issue against the exercise of the rule-making power of this Court. This brings to fore the question of whether Section 27 of Republic Act No. 6770 is substantive or procedural. It will be noted that no definitive line can be drawn between those rules or statutes which are procedural, hence within the scope of this Court's rulemaking power, and those which are substantive. In fact, a particular rule may be procedural in one context and substantive in another. 29 It is admitted that what is procedural and what is substantive is frequently a question of great difficulty. 30 It is not, however, an insurmountable problem if a rational and pragmatic approach is taken within the context of our own procedural and jurisdictional system. In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates procedure, that is, the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. 31 If the rule takes away a vested right, it is no; procedural. If the rule creates a right such as the right to appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an existing right then the rule deals merely with procedure. 32 In the situation under consideration, a transfer by the Supreme Court, in the exercise of its rule-making power, of pending cases involving a review of decisions of the Office of the Ombudsman in administrative disciplinary actions to the Court of Appeals which shall now be vested with exclusive appellate jurisdiction thereover, relates to procedure only. 33 This is so because it is not the right to appeal of an aggrieved party which is affected by the law. That right has been preserved. Only the procedure by which the appeal is to be made or decided has been changed. The rationale for this is that no litigant has a vested right in a particular remedy, which may be changed by substitution without impairing vested rights, hence he can have none in rules of procedure which relate to the remedy. 34 Furthermore, it cannot be said that the transfer of appellate jurisdiction to the Court of Appeals in this case is an act of creating a new right of appeal because such power of the Supreme Court to transfer appeals to subordinate

appellate courts is purely a procedural and not a substantive power. Neither can we consider such transfer as impairing a vested right because the parties have still a remedy and still a competent tribunal to administer that remedy. 35 Thus, it has been generally held that rules or statutes involving a transfer of cases from one court to another, are procedural and remedial merely and that, as such, they are applicable to actions pending at the time the statute went into effect 36 or, in the case at bar, when its invalidity was declared. Accordingly, even from the standpoint of jurisdiction ex hypothesi, the validity of the transfer of appeals in said cases to the Court of Appeals can be sustained. WHEREFORE, Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989), together with Section 7, Rule III of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman), and any other provision of law or issuance implementing the aforesaid Act and insofar as they provide for appeals in administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court, are hereby declared INVALID and of no further force and effect. The instant petition is hereby referred and transferred to the Court of Appeals for final disposition, with said petition to be considered by the Court of Appeals pro hoc vice as a petition for review under Rule 43, without prejudice to its requiring the parties to submit such amended or supplemental pleadings and additional documents or records as it may deem necessary and proper. SO ORDERED. Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing and Purisima, JJ., concur. Footnotes 1 2 3 4 5 6 7 8 Effective November 17, 1989. Effective May 1, 1990. G.R. Nos. 103446-47, August 30, 1993, 225 SCRA 725. G.R. No. 110736, December 27, 1993, 228 SCRA 718. G.R. No. 111304, June 17, 1994, 233 SCRA 310. G.R. No. 107837, June 27, 1994, 233 SCRA 439. G.R. No. 102420, December 20, 1995, 239 SCRA 283. G.R. No. 118533, October 4, 1995, 248 SCRA 700.

9 G.R. No. 111223, October 6, 1995, 249 SCRA 35, jointly deciding G.R. No. 104604. 10 G.R. No. 120223, March 13, 1996, 254 SCRA 753. 11 G.R. No. 127457, April 13, 1998. 12 See 16 Am Jur 2d, Constitutional Law, 155-156, pp. 531-537. 13 Op. cit., 174, p. 184. 14 Mendoza vs. Small Claims Court of Los Angeles J.D., 321 P. 2d 9. 15 State ex rel. Burg vs. City of Albuquerque, et al. 249 P. 242. 16 State vs. Huber, 40 S.E. 2d 11. 17 In re Thomas, 117 N.E. 2d 740. 18 See Reyes, et al. vs. Court of Appeals, et al., G.R. No. 110207, July 11, 1996, 258 SCRA 651, and the cases and instances therein enumerated. 19 Effective July 1, 1997. 20 At present, the sole exception which still subsists is a judgment or final order issued under the Labor Code of the Philippines (Sec. 2, Rule 43), presently under reexamination. 21 Rule 43 was substantially taken from and reproduces the appellate procedure provided in Circular No. 1-91 of the Supreme Court dated February 27, 1991 and its subsequent Revised Administrative Circular No. 195 which took effect on June 1, 1995. * Petitioner suggests as alternative procedures, the application of either Rule 65 or Rule 43 (Rollo, 433). 22 Board of Optometry, etc., et al. vs. Colet, G.R. No. 122241, July 30, 1996, 260 SCRA 88, and cases therein cited; Philippine Constitution Association, et al. vs. Enriquez, etc., et al., G.R. No. 113105, August 19, 1994, 235 SCRA 506, and companion cases. 23 G.R. No. 110571, October 7, 1994, 237 SCRA 519. 24 See Records of the 1986 Constitutional Commission, Vol. II, pp. 130-132. 25 Citing the Journal and Record of the House of Representatives, Third Regular Session, 1989-90, Vol. II, p. 512. 26 Citing the Journal of the Senate, Third Regular Session, 1989-90, Vol. I, pp. 618-619. 27 Journal of the Senate, Second Regular Session, 1988-89, Vol. I, p. 77, August 3, 1988. 28 Ibid., id., id., pp. 111-112, August 9, 1988. 29 8 Ninth Decennial Digest 155.

30 31 32 33 34 35 36

People ex rel. Mijares, et al. vs. Kniss, et al., 357 P. 2d 352. 32 Am. Jur. 2d, Federal Practice and Procedure, 505, p. 936. People vs. Smith, 205 P. 2d 444. 21 CJS, Courts, 502, p. 769. Elm Park Iowa, Inc. vs. Denniston, et al., 280 NW 2d 262. Id., id. 21 CJS, Courts, 502, pp. 769-770, 5 NR 2d 1242.

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