J.A.B. Bulao & Associates

CASE 2012-0026: IN RE: LETTERS OF ATTY. ESTELITO P. MENDOZA RE: G.R. NO. 178083 – FLIGHT ATTENDANTS AND STEWARDS ASSOCIATION OF THE PHILIPPINES (FASAP) V. PHILIPPINE AIRLINES, INC. (PAL), ET AL. (A.M. NO. 11-10-1-SC,  MARCH 13, 2012, BRION, J.) (BRIEF TITLE: RE LETTTERS OF ATTY. MENDOZA)

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DISPOSITIVE:

WHEREFORE, premises considered, we hereby confirm that the Court en banc has assumed jurisdiction over the resolution of the merits of the motions for reconsideration of Philippine Airlines, Inc., addressing our July 22, 2008 Decision and October 2, 2009 Resolution; and that the September 7, 2011 ruling of the Second Division has been effectively recalled.  This case should now be raffled either to Justice Lucas P. Bersamin or Justice Diosdado M. Peralta (the remaining Members of the Special Third Division that originally ruled on the merits of the case) as Member-in-Charge in resolving the merits of these motions.

The Philippine Airlines, Inc.’s Motion to Vacate dated October 3, 2011, but received by this Court after a recall had been made, has thereby been rendered moot and academic. 

The Flight Attendants and Stewards Association of the Philippines’ Motion for Reconsideration of October 17, 2011 is hereby denied; the recall of the September 7, 2011 Resolution was made by the Court on its own before the ruling’s finality pursuant to the Court’s power of control over its orders and resolutions. Thus, no due process issue ever arose.

            SO ORDERED.

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Republic of thePhilippines

Supreme Court

Manila

EN BANC

x—————————————————————————————x

RESOLUTION

BRION, J.:

          Before the Court is the administrative matter that originated from the letters dated September 13, 16, 20, and 22, 2011 of Atty. Estelito P. Mendoza regarding G.R. No. 178083 – Flight Attendants and Stewards Association of the Philippines v. Philippine Airlines, Inc., et al.

          For a full background of the matter, the antecedent developments are outlined below.

1. 1.     The July 22, 2008 Decision

On July 22, 2008, the Court’s Third Division ruled to grant^[1][1] the petition for review on certiorari filed by the Flight Attendants and Stewards Association of the Philippines (FASAP), finding Philippine Airlines, Inc. (PAL) guilty of illegal dismissal.  The July 22, 2008 Decision was penned by Justice Consuelo Ynares-Santiago who was joined by the other four Members of the Third Division.  The Third Division was then composed of:

1. Justice Ynares-Santiago,


2. Justice Alicia Austria-Martinez,


3. Justice Minita Chico-Nazario,


4. Justice Antonio Eduardo Nachura, and


5. Justice Teresita Leonardo-De Castro (replacing Justice Ruben Reyes who inhibited himself from the case).

Justice Leonardo-De Castro was included to replace Justice Ruben Reyes who had inhibited himself from the case because he concurred in the Court of Appeals (CA) decision assailed by FASAP before the Court.^[2][2]  Then Associate Justice Renato Corona was originally designated to replace Justice Ruben Reyes, but he likewise inhibited himself from participation on June July 14, 2008 due to his previous efforts in settling the controversy when he was still in Malacañan.  Under Administrative Circular (AC) No. 84-2007, one additional Member needed be drawn from the rest of the Court to replace the inhibiting Member.^[3][3]  In this manner, Justice Leonardo-De Castro came to participate in the July 22, 2008 Decision.

PAL subsequently filed its motion for reconsideration (MR) of the July 22, 2008 Decision.  The motion was handled by the Special Third Division composed of:

1. Justice Ynares-Santiago,


2. Justice Chico-Nazario,


3. Justice Nachura,


4. Justice Diosdado Peralta (replacing Justice Austria-Martinez who retired on April 30, 2009), and


5. Justice Lucas Bersamin (replacing Justice Leonardo-De Castro who inhibited at the MR stage for personal reasons on July 28, 2009).

1. 2.     The October 2, 2009 Resolution

Justice Ynares-Santiago, as the ponente of the July 22, 2008 Decision, continued to act as the ponente of the case.^[4][4] 

The Special Third Division^[5][5] denied the MR with finality on October 2, 2009.^[6][6] The Court further declared that “[n]o further pleadings will be entertained.”^[7][7]  The other Members of the Special Third Division unanimously concurred with the denial of the motion. 

To fully explain the movements in the membership of the division, the Special Third Division missed Justice Austria-Martinez (who was among those who signed the July 22, 2008 Decision) due to her intervening retirement on April 30, 2009.  Justice Leonardo-De Castro also did not participate in resolving the 1^st MR, despite having voted on the July 22, 2008 Decision, because of her own subsequent inhibition on July 28, 2009.^[8][8] 

1. 3.     PAL’s 2^nd MR

On November 3, 2009, PAL asked for leave of court to file (a) an MR of the October 2, 2009 Resolution, and (b) a 2^nd MR of the July 22, 2008 Decision.  Both rulings were anchored on the validity of PAL’s retrenchment program.

In view of the retirement of the ponente, Justice Ynares-Santiago (who retired on October 5, 2009), the Court’s Raffle Committee^[9][9] had to resolve the question of who would be the new ponente of the case. 

Under A.M. No. 99-8-09-SC (Rules on Who Shall Resolve Motions for Reconsideration in Cases Assigned to the Divisions of the Court, effective April 1, 2000), if the ponente has retired, he/she shall be replaced by another Justice who shall be chosen by raffle from among the remaining Members of the Division:

2. If the ponente is no longer a member of the Court or is disqualified or has inhibited himself from acting on the motion, he shall be replaced by another Justice who shall be chosen by raffle from among the remaining members of the Division who participated and concurred in the rendition of the decision or resolution and who concurred therein.  If only one member of the Court who participated and concurred in the rendition of the decision or resolution remains, he shall be designated as the ponente.

However, on November 11, 2009, the case was raffled, not to a Member of the Third Division that issued the July 22, 2008 Decision or to a Member of the Special Third Division that rendered the October 2, 2009 Resolution, but to Justice Presbitero Velasco, Jr. who was then a Member of the newly-constituted regular Third Division.^[10][10]

In raffling the case to Justice Velasco, the Raffle Committee considered the above-quoted rule inapplicable because of the express excepting qualification provided under A.M. No. 99-8-09-SC that states:

[t]hese rules shall not apply to motions for reconsideration of decisions or resolutions already denied with finality. [underscoring ours]

Stated otherwise, when the original ponente of a case retires, motions filed after the case has been denied with finality may be resolved by any Member of the Court to whom the case shall be raffled, not necessarily by a Member of the same Division that decided or resolved the case.  Presumably, the logic behind the rule is that no further change can be made involving the merits of the case, as judgment has reached finality and is thus irreversible, based on the Rules of Court provision that “[n]o second MR of a judgment or final resolution by the same party shall be entertained.”^[11][11]  (The October 2, 2009 Resolution denying PAL’s 1^st MR further stated that “[n]o further pleadings will be entertained.”)  Thus, the resolution of post-decisional matters in a case already declared final may be resolved by other Members of the Court to whom the case may be raffled after the retirement of the original ponente. 

Given the denial of PAL’s 1^st MR and the declaration of finality of the Court’s July 22, 2008 Decision through the October 2, 2009 Resolution, the Raffle Committee found it unnecessary to create a special Third Division.  Thus, it found nothing irregular in raffling the case to Justice Velasco (who did not take part in the deliberation of the Decision and the Resolution) of the reorganized Third Division for handling by a new regular division.

1. 4.     The acceptance of PAL’s 2^nd MR

On January 20, 2010 (or while A.M. No. 99-8-09-SC was still in effect), the new regular Third Division, through Justice Velasco, granted PAL’s Motion for Leave to File and Admit Motion for Reconsideration of the Resolution dated 2 October 2009 and 2^nd Motion for Reconsideration of Decision dated 22 July 2008.  The Court’s Third Division further required the respective parties to comment on PAL’s motion and FASAP’s Urgent Appeal dated November 23, 2009.  This grant, which opened both the Decision and the Resolution penned by Justice Ynares-Santiago for review, effectively opened the whole case for review on the merits. 

The following were the Members of the Third Division that issued the January 20, 2010 Resolution:

1. Justice Antonio Carpio (vice Justice Corona who inhibited himself as of July 14, 2008),


2. Justice Velasco (ponente),


3. Justice Nachura,


4. Justice Peralta, and


5. Justice Bersamin.

Significantly, at the time leave of court was granted (which was effectively an acceptance for review of PAL’s 2^nd MR), the prohibition against entertaining a 2^nd MR under Section 2, Rule 52^[12][12] (in relation with Section 4, Rule 56^[13][13]) of the Rules of Court applied.  This prohibition, however, had been subject to various existing Court decisions that entertained 2^nd MRs in the higher interest of justice.^[14][14]  This liberalized policy was not formalized by the Court until the effectivity of the Internal Rules of the Supreme Court (IRSC) on May 4, 2010.^[15][15]

With the acceptance of PAL’s 2^nd MR, the question that could have arisen (but was not asked then) was whether the general rule under A.M. No. 99-8-09-SC (which was then still in effect) should have applied so that the case should have been transferred to the remaining Members of the Division that ruled on the merits of the case.  In other words, with the re-opening of the case for review on the merits, the application of the excepting qualification under A.M. No. 99-8-09-SC that the Raffle Committee cited lost its efficacy, as the rulings of the Court were no longer final for having been opened for further review. 

A necessary implication is that either the Clerk of Court or the Raffle Committee should have advised Justice Velasco that his Division should refer the case back to raffle for referral of the case to the original Justices who participated in the assailed Decision and Resolution under the terms of the general rule under A.M. No. 99-8-09-SC; the Justices who participated in the assailed Decision and Resolution were the best ones to consider the motion and to review their own rulings.  This was the first major error that transpired in the case and one that the Clerk of Court failed to see.

Parenthetically, when PAL’s 2^nd MR was filed and when it was subsequently accepted, Justices Nachura, Peralta, and Bersamin were the only remaining Members of the Special Third Division that rendered the October 2, 2009 Resolution. Of these three Justices, only Justice Nachura was a Member of the original Third Division that issued the main decision on July 22, 2008.  The case should have gone to Justice Nachura or, at the very least, to the two other remaining Justices. The re-raffle of the FASAP case to Justice Nachura (or to Justices Peralta and Bersamin) would have been consistent with the constitutional rule that “[c]ases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon[.]”^[16][16]

1. 5.     The Reorganization of the Court

In May 2010, three developments critical to the FASAP case transpired.

The first was the approval of the IRSC by the Court on May 4, 2010.  The IRSC codified the procedural rules of the Court, heretofore existing under various separate and scattered resolutions.  Its relevant terms took the place of A.M. No. 99-8-09-SC.

The second was the retirement of then Chief Justice Reynato Puno and the appointment as Chief Justice of then Associate Justice Corona. 

The third was the reorganization of the divisions of the Court under Special Order No. 838 dated May 17, 2010.   Justice Velasco was transferred from the Third Division to the First Division.  Pursuant to the new IRSC, Justice Velasco brought with him the FASAP case so that the case went from the Third Division to the First Division:

RULE 2. THE OPERATING STRUCTURES

            Section 9. Effect of reorganization of Divisions on assigned cases. – In the reorganization of the membership of Divisions, cases already assigned to a Member-in-Charge shall be transferred to the Division to which the Member-in-Charge moves, subject to the rule on the resolution of motions for reconsideration under Section 7 of this Rule. The Member-in-Charge is the Member given the responsibility of overseeing the progress and disposition of a case assigned by raffle.

Another significant development in the case came on January 17, 2011 (or under the new regime of the IRSC) when Justice Velasco, after acting on the FASAP case for almost one whole year, inhibited himself from participation “due to a close relationship to a party,” despite his previous action on the case.  The pertinent provisions of the IRSC on the matter of inhibition state:

RULE 2.

THE OPERATING STRUCTURES

Section 7. Resolutions of motions for reconsideration or clarification of decisions or signed resolutions and all other motions and incidents subsequently filed; creation of a Special Division. – Motions for reconsideration or clarification of a decision or of a signed resolution and all other motions and incidents subsequently filed in the case shall be acted upon by the ponente and the other Members of the Division who participated in the rendition of the decision or signed resolution.

If the ponente has retired, is no longer a Member of the Court, is disqualified, or has inhibited himself or herself from acting on the motion for reconsideration or clarification, he or she shall be replaced through raffle by a new ponente who shall be chosen [from] among the new Members of the Division who participated in the rendition of the decision or signed resolution remains, he or she shall be designated as the new ponente. 

If a Member (not the ponente) of the Division which rendered the decision or signed resolution has retired, is no longer a Member of the Court, is disqualified, or has inhibited himself or herself from acting on the motion for reconsideration or clarification, he or she shall be replaced through raffle by a replacement Member who shall be chosen from the other Divisions until a new Justice is appointed as replacement for the retired Justice.  Upon the appointment of a new Justice, he or she shall replace the designated Justice as replacement Member of the Special Division.

Any vacancy or vacancies in the Special Division shall be filled by raffle from among the other Members of the Court to constitute a Special Division of five (5) Members.

If the ponente and all the Members of the Division that rendered the Decision or signed Resolution are no longer members of the Court, the case shall be raffled to any Member of the Court and the motion shall be acted upon by him or her with the participation of the other Members of the Division to which he or she belongs.

If there are pleadings, motions or incidents subsequent to the denial of the motion for reconsideration [or] clarification, the case shall be acted upon by the ponente on record with the participation of the other Members of the Division to which he or she belongs at the time said pleading, motion or incident is to be taken up by the Court.

                                            x x x

RULE 8. 

INHIBITION AND SUBSTITUTION OF MEMBERS OF THE COURT

SEC. 3.   Effects of Inhibition.  – The consequences of an inhibition of a Member of the Court shall be governed by these rules:

(a)                Whenever a Member-in-Charge of a case in a Division inhibits himself for a just and valid reason, the case shall be returned to the Raffle Committee for re-raffling among the Members of the other two Divisions of the Court. (IRSC, as amended by A.M. No. 10-4-20-SC dated August 3, 2010) [All emphasis supplied.]

The case was then referred to the Raffle Committee pursuant to Administrative Circular (AC) No. 84-2007, as stated in the Division Raffle Sheet.  The pertinent provision of AC No. 84-2007 states:

2. Whenever the ponente, in the exercise of sound discretion, inhibits herself or himself from the case for just and valid reasons other than those mentioned in paragraph 1, a to f above, the case shall be returned to the Raffle Committee for re-raffling among the other Members of the same Division with one additional Member from the other two Divisions.  [underscoring and italics ours]

Reference to AC No. 84-2007, however, was erroneous.  For one, the IRSC was already in effect when Justice Velasco inhibited himself from participation, and the IRSC had already superseded AC No. 84-2007.  The prevailing IRSC, though, has an almost similar rule, with the difference that the IRSC speaks of the inhibition of a Member-in-Charge or of a Member of the Division other than the Member-in-Charge in its rule on inhibition, and did not use the ponente as its reference point.  This seemingly trivial point carries a lot of significance, particularly in the context of the FASAP case.  

Under the rule on inhibition found in Section 3, Rule 8 of the governing IRSC (as Justice Ma. Lourdes Sereno found in her dissenting opinion), the inhibition called for the raffle to a Member of the two other divisions of the Court.  Thus, Justice Sereno found the subsequent January 26, 2011 raffle of the case to Justice Brion to be legally correct.  As discussed by the Division that issued the September 7, 2011 Resolution (the ruling Division), however, the application of the IRSC is not as simple as Justice Sereno views it to be.  This matter is discussed at length below.

On June 21, 2011 (after the retirement of Justice Nachura on June 13, 2011), Chief Justice Corona issued Special Order No. 1025, again reorganizing the divisions of the Court.  Justice Brion was transferred from the Third Division to the Second Division.  Accordingly, the Third Division – composed of Justice Velasco, Justice Peralta, Justice Bersamin, Justice Jose Mendoza, and Justice Sereno (who was included as additional Member) – referred the FASAP case to the Second Division where Justice Brion belonged, pursuant to Section 9, Rule 2 of the IRSC.^[17][17]

Justice Carpio (the Chair of the Second Division), after voting for the January 20, 2010 Resolution granting leave to PAL to file its 2^nd MR, inhibited himself from the case on August 15, 2011.  As stated in the Division Raffle Sheet of August 15, 2011, Justice Carpio “recused himself from the case per advice of the office of the Member-in-Charge.”  Justice Peralta became the replacement for Justice Carpio, pursuant to Rule 8, Section 3 of the IRSC.

1. 6.     The September 7, 2011 Resolution and Atty. Estelito Mendoza’s letters

On September 7, 2011, the Court – through its Second Division as then constituted – resolved to deny with finality PAL’s 2^nd MR through an unsigned resolution.  The Second Division, as then constituted, was composed of:

1. Justice Brion (as Member-in-Charge and as Acting Chair, being the most senior Member),


2. Justice Peralta (replacing Justice Carpio who inhibited),


3. Justice Jose Perez,


4. Justice Bersamin (replacing Justice Sereno who was on leave^[18][18]), and


5. Justice Mendoza (replacing Justice Bienvenido Reyes who was on leave^[19][19]).

     On September 13, 2011, the counsel for PAL, Atty. Mendoza, sent the first of a series of letters^[20][20] addressed to the Clerk of Court of the Supreme Court.  This letter noted that, of the Members of the Court who acted on the MR dated August 20, 2008 and who issued the Resolution of October 2, 2009, Justices Ynares-Santiago (ponente), Chico-Nazario, and Nachura had already retired from the Court, and the Third Division had issued a Resolution on the case dated January 20, 2010, acted upon by Justices Carpio, Velasco, Nachura, Peralta, and Bersamin.  The letter then asked whether the Court had acted on the 2^nd MR and, if so, which division – whether regular or special – acted and who were the chairperson and members.  It asked, too, for the identity of the current ponente or justice-in-charge, and when and for what reason he or she was designated as ponente.  It further asked for a copy of the Resolution rendered on the 2^nd MR, if an action had already been taken thereon. 

     On September 16, 2011, Atty. Mendoza sent his second letter, again addressed to the Clerk of Court requesting that “copies of any Special Orders or similar issuances transferring the case to another division, and/or designating Members of the division which resolved” its 2^nd MR, in case a resolution had already been rendered by the Court and in the event that “such resolution was issued by a different division.” 

     The Court received Atty. Mendoza’s third letter, again addressed to the Clerk of Court, on September 20, 2011.^[21][21]  Atty. Mendoza stated that he received a copy of the September 7, 2011 Resolution issued by the Second Division, notwithstanding that all prior Court Resolutions he received regarding the case had been issued by the Third Division.^[22][22]  He reiterated his request in his two earlier letters to the Court, asking for the date and time when the Resolution was deliberated upon and a vote taken thereon, as well as the names of the Members of the Court who had participated in the deliberation and voted on the September 7, 2011 Resolution. 

     Atty. Mendoza sent his fourth and last letter dated September 22, 2011, also addressed to the Clerk of Court, suggesting that “if some facts subject of my inquiries are not evident from the records of the case or are not within your knowledge, that you refer the inquiries to the Members of the Court who appear to have participated in the issuance of the Resolution of September 7, 2011, namely: Hon. Arturo D. Brion, Hon. Jose P. Perez, Hon. Diosdado M. Peralta, Hon. Lucas P. Bersamin, and Hon. Jose C. Mendoza.” 

     On September 26, 2011, the Clerk of Court issued the Vidal-Anama^[23][23] Memorandum to the Members of the Second Division in relation to the inquiries contained in the first and second letters of Atty. Mendoza dated September 13 and 20, 2011.  Justice Brion also furnished the Members of the ruling Division a copy of the Vidal-Anama Memorandum.

     The Vidal-Anama Memorandum explained the events that transpired and the actions taken, which resulted in the transfer of the case from its original ponente, Justice Ynares-Santiago, to Justice Velasco, and eventually to Justice Brion.  Attached to the Memorandum were the legal and documentary bases for all the actions of the various raffle committees.^[24][24]  These included the decisions of the two raffle committees on the transfer of the ponencia from Justice Ynares-Santiago to Justice Velasco and finally to Justice Brion as a regular Second Division case. 

     On September 28, 2011, the Letters dated September 13 and 20, 2011 of Atty. Mendoza to Atty. Vidal (asking that his inquiry be referred to the relevant Division Members who took part on the September 7, 2011 Resolution) were “NOTED” by the regular Second Division.  The Members of the ruling Division also met to consider the queries posed by Atty. Mendoza.  Justice Brion met with the Members of the ruling Division (composed of Justices Brion, Peralta, Perez, Bersamin, and Mendoza), rather than with the regular Second Division (composed of Justices Carpio, Brion, Perez, and Sereno^[25][25]), as the former were the active participants in the September 7, 2011 Resolution.

In these meetings, some of the Members of the ruling Division saw the problems pointed out above, some of which indicated that the ruling Division might have had no authority to rule on the case.  Specifically, their discussions centered on the application of A.M. No. 99-8-09-SC for the incidents that transpired prior to the effectivity of the IRSC, and on the conflicting rules under the IRSC – Section 3, Rule 8 on the effects of inhibition and Section 7, Rule 2 on the resolution of MRs.  

A.M. No. 99-8-09-SC indicated the general rule that the re-raffle shall be made among the other Members of the same Division who participated in rendering the decision or resolution and who concurred therein, which should now apply because the ruling on the case is no longer final after the case had been opened for review on the merits.  In other words, after acceptance by the Third Division, through Justice Velasco, of the 2^nd MR, there should have been a referral to raffle because the excepting qualification that the Clerk of Court cited no longer applied; what was being reviewed were the merits of the case and the review should be by the same Justices who had originally issued the original Decision and the subsequent Resolution, or by whoever of these Justices are still left in the Court, pursuant to the same A.M. No. 99-8-09-SC.

On the other hand, the raffle to Justice Brion was made by applying AC No. 84-2007 that had been superseded by Section 3, Rule 8 of the IRSC. Even the use of this IRSC provision, however, would not solve the problem, as its use still raised the question of the provision that should really apply in the resolution of the MR: should it be Section 3, Rule 8 on the inhibition of a Member-in-Charge, or Section 7, Rule 2 of the IRSC on the inhibition of the ponente when an MR of a decision and a signed resolution was filed.  These two provisions are placed side-by-side in the table below for easier and clearer comparison, with emphasis on the more important words:

          A comparison of these two provisions shows the semantic sources of the seeming conflict: Section 7, Rule 2 refers to a situation where the ponente has retired, is no longer a Member of the Court, is disqualified, or has inhibited himself from acting on the case; while Section 3, Rule 8 generally refers to the inhibition of a Member-in-Charge who does not need to be the writer of the decision or resolution under review. 

Significantly, Section 7, Rule 2 expressly uses the word ponente (not Member-in-Charge) and refers to a specific situation where the ponente (or the writer of the Decision or the Resolution) is no longer with the Court or is otherwise unavailable to review the decision or resolution he or she wrote.  Section 3, Rule 8, on the other hand, expressly uses the term Member-in-Charge and generally refers to his or her inhibition, without reference to the stage of the proceeding when the inhibition is made. 

Under Section 7, Rule 2, the case should have been re-raffled and assigned to anyone of Justices Nachura (who did not retire until June 13, 2011), Peralta, or Bersamin, either (1) after the acceptance of the 2^nd MR (because the original rulings were no longer final); or (2) after Justice Velasco’s inhibition because the same condition existed, i.e., the need for a review by the same Justices who rendered the decision or resolution.   As previously mentioned, Justice Nachura participated in both the original Decision and the subsequent Resolution, and all three Justices were the remaining Members who voted on the October 2, 2009 Resolution.  On the other hand, if Section 3, Rule 8 were to be solely applied after Justice Velasco’s inhibition, the Clerk of Court would be correct in her assessment and the raffle to Justice Brion, as a Member outside of Justice Velasco’s Division, was correct. 

          These were the legal considerations that largely confronted the ruling Division in late September 2011 when it deliberated on what to do with Atty. Mendoza’s letters. 

The propriety of and grounds for the recall of the September 7, 2011 Resolution

Most unfortunately, the above unresolved questions were even further compounded in the course of the deliberations of the Members of the ruling Division when they were informed that the parties received the ruling on September 19, 2011, and this ruling would lapse to finality after the 15^th day, or after October 4, 2011. 

Thus, on September 30, 2011 (a Friday), the Members went to Chief Justice Corona and recommended, as a prudent move, that the September 7, 2011 Resolution be recalled at the very latest on October 4, 2011, and that the case be referred to the Court en banc for a ruling on the questions Atty. Mendoza asked.  The consequence, of course, of a failure to recall their ruling was for that Resolution to lapse to finality.  After finality, any recall for lack of jurisdiction of the ruling Division might not be understood by the parties and could lead to a charge of flip-flopping against the Court.  The basis for the referral is Section 3(n), Rule 2 of the IRSC, which provides:

RULE 2.

OPERATING STRUCTURES

            Section 3. Court en banc matters and cases. – The Court en banc shall act on the following matters and cases:

            x x x x

(n) cases that the Court en banc deems of sufficient importance to merit its attention[.]

Ruling positively, the Court en banc duly issued its disputed October 4, 2011 Resolution recalling the September 7, 2011 Resolution and ordering the re-raffle of the case to a new Member-in-Charge.  Later in the day, the Court received PAL’s Motion to Vacate (the September 7, 2011 ruling) dated October 3, 2011.  This was followed by FASAP’s MR dated October 17, 2011 addressing the Court Resolution of October 4, 2011.  The FASAP MR mainly invoked the violation of its right to due process as the recall arose from the Court’s ex parte consideration of mere letters from one of the counsels of the parties.

As the narration in this Resolution shows, the Court acted on its own pursuant to its power to recall its own orders and resolutions before their finality.  The October 4, 2011 Resolution was issued to determine the propriety of the September 7, 2011 Resolution given the facts that came to light after the ruling Division’s examination of the records. To point out the obvious, the recall was not a ruling on the merits and did not constitute the reversal of the substantive issues already decided upon by the Court in the FASAP case in its previously issued Decision (of July 22, 2008) and Resolution (of October 2, 2009).  In short, the October 4, 2011 Resolution was not meant and was never intended to favor either party, but to simply remove any doubt about the validity of the ruling Division’s action on the case.  The case, in the ruling Division’s view, could be brought to the Court en banc since it is one of “sufficient importance”; at the very least, it involves the interpretation of conflicting provisions of the IRSC with potential jurisdictional implications.

         At the time the Members of the ruling Division went to the Chief Justice to recommend a recall, there was no clear indication of how they would definitively settle the unresolved legal questions among themselves.  The only matter legally certain was the looming finality of the September 7, 2011 Resolution if it would not be immediately recalled by the Court en banc by October 4, 2011.  No unanimity among the Members of the ruling Division could be gathered on the unresolved legal questions; thus, they concluded that the matter is best determined by the Court en banc as it potentially involved questions of jurisdiction and interpretation of conflicting provisions of the IRSC.  To the extent of the recommended recall, the ruling Division was unanimous and the Members communicated this intent to the Chief Justice in clear and unequivocal terms.

          Given this background, the Clerk of Court cannot and should not be faulted for her recommended position, as indeed there was a ruling in the 1^st MR that declared the original ruling on the case final.  Perhaps, she did not fully realize that the ruling on the 1^st MR varied the terms of the original Decision of July 22, 2008; she could not have considered, too, that a subsequent 2^nd MR would be accepted for the Court’s further consideration of the case on the merits. 

Upon acceptance of the 2^nd MR by the Third Division through Justice Velasco, the Clerk of Court and the Raffle Committee, however, should have realized that Justice Velasco was not the proper Member-in-Charge of the case and another raffle should have been held to assign the case to a Justice who participated in the original Decision of July 22, 2008 or in the Resolution of October 2, 2009.  This realization, unfortunately, did not dawn on the Clerk of Court. 

For practically the same reasons, the Third (or Velasco) Division, with Justice Velasco as Member-in-Charge, cannot and should not be faulted for accepting the 2^nd  MR; the variance introduced by the ruling on the 1^st MR and the higher interest of justice (in light alone of the gigantic amount involved) appeared to justify further consideration of the case.  Recall that at that time, the IRSC was not yet in existence and a specific rule under the IRSC on the handling of 2^nd MRs was yet to be formulated, separately from the existing jurisprudential rulings.  Justice Velasco, though, could not have held on to the case after its merits were opened for new consideration, as he was not the writer of the assailed Decision and Resolution, nor was he a Member of the Division that acted on the case.  Under A.M. No. 99-8-09-SC, the rightful ponente should be a remaining Member of the Division that rendered the decision or resolution.  

          With Justice Velasco’s subsequent inhibition, a legal reason that the involved officials and Justices should have again recognized is the rationale of the rule on replacements when an inhibition or retirement intervenes.  Since the inhibiting Justice was only the Member-in-Charge and was technically merely a nominal ponente^[26][26] in so far as the case is concerned (because he was not the writer of the Decision and Resolution under consideration), the raffle should have been confined among the Members who actually participated in ruling on the merits of the original Decision or of the subsequent Resolution.  At that point, only Justices Peralta and Bersamin were left because all the other Members of the original ruling groups had retired.  Since under the IRSC^[27][27] and Section 4(3), Article VIII of the Constitution, the case should have been decided by the Members who actually took part in the deliberations, the ruling on the merits made by the ruling Division on September 7, 2011 was effectively void and should appropriately be recalled.

          To summarize all the developments that brought about the present dispute – expressed in a format that can more readily be appreciated in terms of the Court en banc’s ruling to recall the September 7, 2011 ruling – the FASAP case, as it developed, was attended by special and unusual circumstances that saw:

(a)            the confluence of the successive retirement of three Justices (in a Division of five Justices) who actually participated in the assailed Decision and Resolution;

(b)            the change in the governing rules – from the A.M.s to the IRSC regime – which transpired during the pendency of the case;

(c)            the occurrence of a series of inhibitions in the course of the case (Justices Ruben Reyes, Leonardo-De Castro, Corona, Velasco, and Carpio), and the absences of Justices Sereno and Reyes at the critical time, requiring their replacement; notably, Justices Corona, Carpio, Velasco and Leonardo-De Castro are the four most senior Members of the Court;

(d)            the three re-organizations of the divisions, which all took place during the pendency of the case, necessitating the transfer of the case from the Third Division, to the First, then to the Second Division;

(e)            the unusual timing of Atty. Mendoza’s letters, made after the ruling Division had issued its Resolution of September 7, 2011, but before the parties received their copies of the said Resolution; and

(f)              finally, the time constraint that intervened, brought about by the parties’ receipt on September 19, 2011 of the Special Division’s Resolution of September 7, 2011, and the consequent running of the period for finality computed from this latter date; and the Resolution would have lapsed to finality after October 4, 2011, had it not been recalled by that date.

All these developments, in no small measure, contributed in their own peculiar way to the confusing situations that attended the September 7, 2011 Resolution, resulting in the recall of this Resolution by the Court en banc.

          On deeper consideration, the majority now firmly holds the view that Section 7, Rule 2 of the IRSC should have prevailed in considering the raffle and assignment of cases after the 2^nd MR was accepted, as advocated by some Members within the ruling Division, as against the general rule on inhibition under Section 3, Rule 8.  The underlying constitutional reason, of course, is the requirement of Section 4(3), Article VIII of the Constitution already referred to above.^[28][28]

The general rule on statutory interpretation is that apparently conflicting provisions should be reconciled and harmonized,^[29][29] as a statute must be so construed as to harmonize and give effect to all its provisions whenever possible.^[30][30] Only after the failure at this attempt at reconciliation should one provision be considered the applicable provision as against the other.^[31][31]   

          Applying these rules by reconciling the two provisions under consideration, Section 3, Rule 8 of the IRSC should be read as the general rule applicable to the inhibition of a Member-in-Charge.  This general rule should, however, yield where the inhibition occurs at the late stage of the case when a decision or signed resolution is assailed through an MR.  At that point, when the situation calls for the review of the merits of the decision or the signed resolution made by a ponente (or writer of the assailed ruling), Section 3, Rule 8 no longer applies and must yield to Section 7, Rule 2 of the IRSC which contemplates a situation when the ponente is no longer available, and calls for the referral of the case for raffle among the remaining Members of the Division who acted on the decision or on the signed resolution.  This latter provision should rightly apply as it gives those who intimately know the facts and merits of the case, through their previous participation and deliberations, the chance to take a look at the decision or resolution produced with their participation.

To reiterate, Section 3, Rule 8 of the IRSC is the general rule on inhibition, but it must yield to the more specific Section 7, Rule 2 of the IRSC where the obtaining situation is for the review on the merits of an already issued decision or resolution and the ponente or writer is no longer available to act on the matter.  On this basis, the ponente, on the merits of the case on review, should be chosen from the remaining participating Justices, namely, Justices Peralta and Bersamin.

          A final point that needs to be fully clarified at this juncture, in light of the allegations of the Dissent is the role of the Chief Justice in the recall of the September 7, 2011 Resolution.  As can be seen from the above narration, the Chief Justice acted only on the recommendation of the ruling Division, since he had inhibited himself from participation in the case long before.  The confusion on this matter could have been brought about by the Chief Justice’s role as the Presiding Officer of the Court en banc (particularly in its meeting of October 4, 2011), and the fact that the four most senior Justices of the Court (namely, Justices Corona, Carpio, Velasco and Leonardo-De Castro) inhibited from participating in the case.  In the absence of any clear personal malicious participation, it is neither correct nor proper to hold the Chief Justice personally accountable for the collegial ruling of the Court en banc.

          Another disturbing allegation in the Dissent is the implication of the alleged silence of, or lack of objection from, the Members of the ruling Division during the October 4, 2011 deliberations, citing for this purpose the internal en banc deliberations.  The lack of a very active role in the arguments can only be attributable to the Members of the ruling Division’s unanimous agreement to recall their ruling immediately; to their desire to have the intricate issues ventilated before the Court en banc; to the looming finality of their Division’s ruling if this ruling would not be recalled; and to their firm resolve to avoid any occasion for future flip-flopping by the Court. To be sure, it was not due to any conspiracy to reverse their ruling to affirm the previous Court rulings already made in favor of FASAP; the Division’s response was simply dictated by the legal uncertainties that existed and the deep division among them on the proper reaction to Atty. Mendoza’s letters. 

Of the above-cited reasons, a major influencing factor, of course, was the time constraint – the Members of the ruling Division met with the Chief Justice on September 30, 2011, the Friday before October 4, 2011 (the date of the closest Court en banc meeting, as well as the deadline for the finality of the September 7, 2011 Resolution).  They impressed upon the Chief Justice the urgent need to recall their September 7, 2011 Resolution under the risk of being accused of a flip-flop if the Court en banc would later decide to override its ruling. 

As a final word, if no detailed reference to internal Court deliberations is made in this Resolution, the omission is intentional in view of the prohibition against the public disclosure of the internal proceedings of the Court during its deliberations.  The present administrative matter, despite its pendency, is being ventilated in the impeachment of Chief Justice Corona before the Senate acting as an Impeachment Court, and any disclosure in this Resolution could mean the disclosure of the Court’s internal deliberations to outside parties, contrary to the clear terms of the Court en banc Resolution of February 14, 2012 on the attendance of witnesses from this Court and the production of Court records. 

                                                CONCLUSION

          In sum, the recall of the September 7, 2011 Resolution of the ruling Division was a proper and legal move to make under the applicable laws and rules, and the indisputably unusual developments and circumstances of the case.

Between Section 3, Article 8 and Section 7, Rule 2, both of the IRSC, the former is the general provision on a Member-in-Charge’s inhibition, but it should yield to the more specific Section 7, Rule 2 in a situation where the review of an issued decision or signed resolution is called for and the ponente or writer of these rulings is no longer available to act.  Section 7, Rule 2 exactly contemplates this situation. 

WHEREFORE, premises considered, we hereby confirm that the Court en banc has assumed jurisdiction over the resolution of the merits of the motions for reconsideration of Philippine Airlines, Inc., addressing our July 22, 2008 Decision and October 2, 2009 Resolution; and that the September 7, 2011 ruling of the Second Division has been effectively recalled.  This case should now be raffled either to Justice Lucas P. Bersamin or Justice Diosdado M. Peralta (the remaining Members of the Special Third Division that originally ruled on the merits of the case) as Member-in-Charge in resolving the merits of these motions.

The Philippine Airlines, Inc.’s Motion to Vacate dated October 3, 2011, but received by this Court after a recall had been made, has thereby been rendered moot and academic. 

The Flight Attendants and Stewards Association of the Philippines’ Motion for Reconsideration of October 17, 2011 is hereby denied; the recall of the September 7, 2011 Resolution was made by the Court on its own before the ruling’s finality pursuant to the Court’s power of control over its orders and resolutions. Thus, no due process issue ever arose.

            SO ORDERED.

                                                ARTURO D. BRION

                                                Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

ESTELA M. PERLAS-BERNABE

Associate Justice

CASE 2012-0025: MANILA ELECTRIC COMPANY VS. JAN CARLO GALA (G.R. Nos. 191288 & 191304, March 7, 2012, BRION, J.) SUBJECT: APPLICATION OF TECHICAL RULES OF PROCEDURE IN LABOR CASES MAY BE RELAXED; DISMISSAL OF PROBATIONARY EMPLOYEE SUSTAINED; SAMPLE OF CONDITIONS IN PROBATIONARY EMPLOY  AGREEMENT.  (BRIEF TITLE: MERALCO VS. GALA).

=================

DISPOSITIVE:

        WHEREFORE, premises considered, the petition is GRANTED. The assailed decision and resolution of the Court of Appeals are SET ASIDE. The complaint is DISMISSED for lack of merit.

        SO ORDERED.

=================

Republic of thePhilippines

Supreme Court

Manila

SECOND DIVISION

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          D E C I S I O N

BRION, J.:

          We resolve the petition for review on certiorari,^[1][1] seeking to annul the decision^[2][2] dated August 25, 2009 and the resolution^[3][3] datedFebruary 10, 2010 of the Court of Appeals (CA) rendered in CA-G.R. SP. Nos. 105943 and 106021.

The Antecedents

The facts are summarized below.

          On March 2, 2006, respondent Jan Carlo Gala commenced employment with the petitioner Meralco Electric Company (Meralco) as a probationary lineman. He was assigned at Meralco’s Valenzuela Sector. He initially served as member of the crew of Meralco’s Truck No. 1823 supervised by Foreman Narciso Matis. After one month, he joined the crew of Truck No. 1837 under the supervision of Foreman Raymundo Zuñiga, Sr.

          OnJuly 27, 2006, barely four months on the job, Gala was dismissed for alleged complicity in pilferages of Meralco’s electrical supplies, particularly, for the incident which took place onMay 25, 2006. On that day, Gala and other Meralco workers were instructed to replace a worn-out electrical pole at the Pacheco Subdivision inValenzuelaCity. Gala and the other linemen were directed to join Truck No. 1891, under the supervision of Foreman Nemecio Hipolito.

          When they arrived at the worksite, Gala and the other workers saw that Truck No. 1837, supervised by Zuñiga, was already there.  The linemen of Truck No. 1837 were already at work.  Gala and the other members of the crew of Truck No. 1891 were instructed to help in the digging of a hole for the pole to be installed.

          While the Meralco crew was at work, one Noberto “Bing” Llanes, a non-Meralco employee, arrived. He appeared to be known to the Meralco foremen as they were seen conversing with him.  Llanes boarded the trucks, without being stopped, and took out what were later found as electrical supplies. Aside from Gala, the foremen and the other linemen who were at the worksite when the pilferage happened were later charged with misconduct and dishonesty for their involvement in the incident.

          Unknown to Gala and the rest of the crew, a Meralco surveillance task force was monitoring their activities and recording everything with a Sony video camera. The task force was composed of Joseph Aguilar, Ariel Dola and Frederick Riano.

          Meralco called for an investigation of the incident and asked Gala to explain. Gala denied involvement in the pilferage, contending that even if his superiors might have committed a wrongdoing, he had no participation in what they did. He claimed that: (1) he was at some distance away from the trucks when the pilferage happened; (2) he did not have an inkling that an illegal activity was taking place since his supervisors were conversing with Llanes, giving him the impression that they knew him; (3) he did not call the attention of his superiors because he was not in a position to do so as he was a mere lineman; and (4) he was just following instructions in connection with his work and had no control in the disposition of company supplies and materials. He maintained that his mere presence at the scene of the incident was not sufficient to hold him liable as a conspirator.

          Despite Gala’s explanation, Meralco proceeded with the investigation and eventually terminated his employment on July 27, 2006.^[4][4] Gala responded by filing an illegal dismissal complaint against Meralco.^[5][5]

The Compulsory Arbitration Rulings

          In a decision dated September 7, 2007,^[6][6] Labor Arbiter Teresita D. Castillon-Lora dismissed the complaint for lack of merit. She held that Gala’s participation in the pilferage of Meralco’s property rendered him unqualified to become a regular employee.

         Gala  appealed to the National Labor Relations Commission (NLRC). In its decision of May 2, 2008,^[7][7] the NLRC reversed the labor arbiter’s ruling.  It  found that Gala  had  been  illegally  dismissed, since there was “no concrete showing of complicity with the alleged misconduct/dishonesty[.]”^[8][8] The NLRC, however, ruled out Gala’s reinstatement, stating that his tenure lasted only up to the end of his probationary period. It awarded him backwages and attorney’s fees.

          Both parties moved for partial reconsideration; Gala, on the ground that he should have been reinstated with full backwages, damages and interests; and Meralco, on the ground that the NLRC erred in finding that Gala had been illegally dismissed. The NLRC denied the motions. Relying on the same grounds, Gala and Meralco elevated the case to the CA through a petition for certiorari under Rule 65 of the Rules of Court.

The CA Decision

          In its decision of August 25, 2009,^[9][9] the CA denied Meralco’s petition for lack of merit and partially granted Gala’s petition. It concurred with the NLRC that Gala had been illegally dismissed, a ruling that was supported by the evidence. It opined that nothing in the records show Gala’s knowledge of or complicity in the pilferage. It found insufficient the joint affidavit^[10][10] of the members of  Meralco’s task force testifying that Gala and two other linemen knew Llanes.

          The CA modified the NLRC decision of May 2, 2008^[11][11] and ordered Gala’s reinstatement with full backwages and other benefits. The CA also denied Meralco’s motion for reconsideration. Hence, the present petition for review on certiorari.^[12][12]

The Petition

          The petition is anchored on the ground that the CA seriously erred and gravely abused its discretion in –

1. ruling that Gala was illegally dismissed; and
2. directing Gala’s reinstatement despite his probationary status.

Meralco faults the CA for not giving credit to its witnesses Aguilar, Dola and Riano, and instead treated their joint affidavit (Samasamang Sinumpaang Salaysay)  as  inconclusive  to  establish  Gala’s participation in  the  pilferage  of  company  property  on May 25, 2006. It submits that the affidavit of the three Meralco employees disproves the CA’s findings, considering that their statements were based on their first-hand account of the incident during their day-long surveillance onMay 25, 2006. It points out  that  the  three  Meralco  employees  categorically  stated  that  all  of the company’s foremen and linemen present at that time, including Gala, had  knowledge of the pilferage that was happening at the time. According to Aguilar, Dola and Riano, the trucks’ crew, including Gala, was familiar with Llanes who acted as if his presence — particularly, that of freely collecting materials and supplies — was a regular occurrence during their operations.

Meralco maintains that Gala himself admitted in his own testimony^[13][13] that he had been familiar with Llanes even before the May 25, 2006 incident where he saw Zuñiga, the foreman of Truck No. 1837, conversing with Llanes.  Meralco submits that Gala’s admission, instead of demonstrating “his feigned innocence,”^[14][14] even highlights his guilt, especially considering that by design, his misfeasance assisted Llanes in pilfering company property; Gala neither intervened to stop Llanes, nor did he report the incident to the Meralco management.

Meralco posits that because of his undeniable knowledge of, if not participation in, the pilferage activities done by their group, the company was well within its right in terminating his employment as a probationary employee for his failure to meet the basic standards for his regularization. The standards, it points out, were duly explained to him and outlined in his probationary employment contract. For this reason and due to the expiration of Gala’s probationary employment, the CA should not have ordered his reinstatement with full backwages.

Finally, Meralco argues that even if Gala was illegally dismissed, he was entitled to just his backwages for the unexpired portion of his employment contract with the company.

Gala’s Case

        By way of his Comment (to the Petition) dated September 2, 2010,^[15][15]  Gala asks for a denial of the petition because of (1) serious and fatal infirmities in the petition; (2) unreliable statements of Meralco’s witnesses; and (3) clear lack of basis to support the termination of his employment.

        Gala contends, in regard to the alleged procedural defects of the petition, that the “Verification and Certification,” “Secretary’s Certificate” and “Affidavit of Service” do not contain the details of the Community or Residence Tax Certificates of the affiants, in violation of Section 6 of Commonwealth Act No. 465 (an Act to Impose a Residence Tax). Additionally, the lawyers who signed the petition failed to indicate their updated Mandatory Continuing Legal Education (MCLE) certificate numbers, in violation of the rules.

        With respect to the merits of the case, Gala bewails Meralco’s reliance on the joint affidavit^[16][16] of Aguilar, Dola and Riano not only because it was presented for the first time on appeal to the CA, but also because it was a mere afterthought. He explains that Aguilar and Dola were the very same persons who executed a much earlier sworn statement or transcription dated July 7, 2006. This earlier statement did not even mention Gala, but the later joint affidavit “splashes GALA’s name in a desperate attempt to link him to an imagined wrongdoing.”^[17][17]

        Zeroing in on what he believes as lack of credibility of Meralco’s evidence, Gala posits that there is clear lack of basis for the termination of his employment. Thus, he wonders why Meralco did not present as evidence the video footage of the entire incident which it claims exists. He suspects that the footage was adverse to Meralco’s position in the case.

        Gala adds that the allegations of a “reported pilferage” or “rampant theft or pilferage” committed prior toMay 25, 2006by his superiors were  not established, for even the labor arbiter did not make a finding on the foremen’s involvement in the incident. He stresses that the same is true in his case as there is no proof of his participation in the pilferage.

        Gala further submits that even if he saw Llanes on May 25, 2006 at about the time of the occurrence of the pilferage near or around the Meralco trucks, he was not aware that a wrongdoing was being committed or was about to be committed. He points out at that precise time, his superiors were much nearer to the trucks than he as he was among the crew digging a hole.  He presumed at the time that his own superiors, being the more senior employees, could be trusted to protect company property.

        Finally, Gala posits that his reinstatement with full backwages is but a consequence of the illegality of his dismissal. He argues that even if he was on probation, he is entitled to security of tenure. Citing Philippine Manpower Services, Inc. v. NLRC,^[18][18] he claims that in the absence of any justification for the termination of his probationary employment, he is entitled to continued employment even beyond the probationary period.

The Court’s Ruling

The procedural issue

        Gala would want the petition to be dismissed outright on procedural grounds, claiming that the “Verification and Certification,” “Secretary’s Certificate” and “Affidavit of Service” accompanying the petition do not contain the details of the Community Tax Certificates of the affiants, and that the lawyers who signed the petition failed to indicate their updated MCLE certificate numbers, in violation of existing rules.

We stress at this point that it is the spirit and intention of labor legislation that the NLRC and the labor arbiters shall use every reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law or procedure, provided due process is duly observed.^[19][19] In keeping with this policy and in the interest of substantial justice, we deem it proper to give due course to the petition, especially in view of the conflict between the findings of the labor arbiter, on the one hand, and the NLRC and the CA, on the other. As we said in S.S. Ventures International, Inc. v. S.S. Ventures Labor Union,^[20][20] “the application of technical rules of procedure in labor cases may be relaxed to serve the demands of substantial justice.”

The substantive aspect of the case

        We find merit in the petition.

Contrary to the conclusions of the CA and the NLRC, there is substantial evidence supporting Meralco’s position that Gala had become unfit to continue his employment with the company. Gala was found, after an administrative investigation, to have failed to meet the standards expected of him to become a regular employee and this failure was mainly due to his “undeniable knowledge, if not participation, in the pilferage activities done by their group, all to the prejudice of the Company’s interests.”^[21][21]

        Gala insists that he cannot be sanctioned for the theft of company property onMay 25, 2006. He maintains that he had no direct participation in the incident and that he was not aware that an illegal activity was going on as he was at some distance from the trucks when the alleged theft was being committed. He adds that he did not call the attention of the foremen because he was a mere lineman and he was focused on what he was doing at the time. He argues that in any event, his mere presence in the area was not enough to make him a conspirator in the commission of the pilferage.

        Gala misses the point. He forgets that as a probationary employee, his overall job performance and his behavior were being monitored and measured in accordance with the standards (i.e., the terms and conditions) laid down in his probationary employment agreement.^[22][22] Under paragraph 8 of the agreement, he was subject to strict compliance with, and non-violation of the Company Code on Employee Discipline, Safety Code, rules and regulations and existing policies. Par. 10 required him to observe at all times the highest degree of transparency, selflessness and integrity in the performance of his duties and responsibilities, free from any form of conflict or contradicting with his own personal interest.

        The evidence on record established Gala’s presence in the worksite where the pilferage of company property happened. It also established that it was not only on May 25, 2006that Llanes, the pilferer, had been seen during a Meralco operation. He had been previously noticed by Meralco employees, including Gala (based on his admission),^[23][23] in past operations. If Gala had seen Llanes in earlier projects or operations of the company, it is incredulous for him to say that he did not know why Llanes was there or what Zuñiga and Llanes were talking about.  To our mind, the Meralco crew (the foremen and the linemen) allowed or could have even asked Llanes to be there during their operations for one and only purpose — to serve as their conduit for pilfered company supplies to be sold to ready buyers outside Meralco worksites.

        The familiarity of the Meralco crew with Llanes, a non-Meralco employee who had been present in Meralco field operations, does not contradict at all but rather support the Meralco submission that there had been “reported pilferage” or “rampant theft,” by the crew, of company property even before May 25, 2006. Gala downplays this particular point with the argument that the labor arbiter made no such finding as she merely assumed it to be a fact,^[24][24] her only “basis” being the statement that “may natanggap na balita na ang mga crew na ito ay palagiang hindi nagsasauli ng mga electric facilities na kanilang ginagamit o pinapalitan bagkus ito ay ibinenta palabas.”^[25][25] Gala impugns the statement as hearsay. He also wonders why Meralco’s supposed “video footage” of  the incident onMay 25, 2006 was never presented in evidence.

        The established fact that Llanes, a non-Meralco employee, was often seen during company operations, conversing with the foremen, for reason or reasons connected with the ongoing company operations, gives rise to the question: what was he doing there? Apparently, he had been visiting  Meralco worksites, at least in the Valenzuela Sector, not simply to socialize, but to do something else. As testified to by witnesses, he was picking up unused supplies and materials that were not returned to the company. From these factual premises, it is not hard to conclude that this activity was for the mutual pecuniary benefit of himself and the crew who tolerated the practice. For one working at the scene who had seen or who had shown familiarity with Llanes (a non-Meralco employee), not to have known the reason for his presence is to disregard the obvious, or at least the very suspicious.

        We consider, too, and we find credible the company submission that the Meralco crew who worked at the Pacheco Subdivision inValenzuelaCityonMay 25, 2006had not been returning unused supplies and materials, to the prejudice of the company. From all these, the allegedly hearsay evidence that is not competent in judicial proceedings (as noted above), takes on special meaning and relevance.

With respect to the video footage of the May 25, 2006incident, Gala himself admitted that he viewed the tape during the administrative investigation, particularly in connection with the accusation against him that he allowed Llanes (binatilyong may kapansanan sa bibig) to board the Meralco trucks.^[26][26] The choice of evidence belongs to a party and the mere fact that the video was shown to Gala indicates that the video was not an evidence that Meralco was trying to suppress. Gala could have, if he had wanted to, served a subpoena for the production of the video footage as evidence. The fact that he did not does not strengthen his case nor weaken the case of Meralco.

        On the whole, the totality of the circumstances obtaining in the case convinces us that Gala could not but have knowledge of the pilferage of company electrical supplies on May 25, 2006; he was complicit in its commission, if not by direct participation, certainly, by his inaction while it was being perpetrated and by not reporting the incident to company authorities. Thus, we find substantial evidence to support the conclusion that Gala does not deserve to remain in Meralco’s employ as a regular employee. He violated his probationary employment agreement, especially the requirement for him “to observe at all times the highest degree of transparency, selflessness and integrity in the performance of their duties and responsibilities[.]”^[27][27] He failed to qualify as a regular employee.^[28][28]      

        For ignoring the evidence in this case, the NLRC committed grave abuse of discretion and, in sustaining the NLRC, the CA committed a reversible error.

        WHEREFORE, premises considered, the petition is GRANTED. The assailed decision and resolution of the Court of Appeals are SET ASIDE. The complaint is DISMISSED for lack of merit.

        SO ORDERED.

                                      ARTURO D. BRION

                                      Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

Chairperson

BIENVENIDO L. REYES

Associate Justice

A T T E S T A T I O N

          I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                      ANTONIO T. CARPIO

                                      Associate Justice

                                      Chairperson, Second Division

C E R T I F I C A T I O N

          Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                RENATO C. CORONA

                                                 Chief Justice

CASE 2012-0024: PEOPLE OF THE PHILIPPINES VS. BEN RUBIO y ACOSTA (G.R. No. 195239, March 7, 2012,  VELASCO, JR., J) SUBJECT: RAPE; INACCURACIES AND INCONSISTENCIES IN RAPE VICTIM’S TESTIMONY EXPECTED; TRIAL COURT’S ASSESSMENT BINDING; ELEMENTS OF QUALIFIED RAPE; APPROPRIATE MORAL DAMAGES. (BRIEF TITLE: PEOPLE VS. RUBIO)

===================

DISPOSITIVE:

WHEREFORE, the Decision of the CA in CA-G.R. CR-H.C. No. 03489 is hereby AFFIRMED, with MODIFICATION in that the award of moral damages is increased to PhP 75,000 and exemplary damages to      PhP 30,000. The civil indemnity and damages shall earn interest at six percent (6%) per annum from finality of this Decision until fully paid.^[1][40] Costs against accused-appellant.

          SO ORDERED.

===================

Republic of thePhilippines

SUPREME COURT

Manila

THIRD DIVISION

x—————————————————————————————–x

D E C I S I O N

VELASCO, JR., J.:

The Case

         This is an appeal from the July 26, 2010 Decision^[2][1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03489, which affirmed in toto the June 30, 2008 Decision^[3][2] in Criminal Case No. 117310-H of the Regional Trial Court (RTC), Branch 261 in Pasig City. The RTC found accused Ben Rubio y Acosta (Rubio) guilty beyond reasonable doubt of the crime of Rape.

The Facts

On January 6, 2006, Rubio was charged before the RTC with qualified rape. The accusatory portion of the Information provides:

On or about January 8, 2000, in Pasig City and within the jurisdiction of this Honorable Court, the defendant, being her father, with lewd design and by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with [AAA],^[4][3] 15 years old, against her will and consent.

Contrary to Law.^[5][4]

          Upon arraignment, Rubio pleaded “not guilty.” During the pre-trial conference, Rubio admitted being the father of private complainant AAA and that she was under eighteen (18) years of age when the alleged rape happened. Trial ensued.

          Through the testimony of AAA, it was established that on January 8, 2000 at around two o’clock in the afternoon, she was sleeping inside their house with her two-year old sister and three-year old brother, when the accused approached her and removed her shorts and panty. AAA tried to push him away but he was too strong, and he succeeded in inserting his penis inside her vagina. AAA continued resisting despite being afraid that the accused would hurt her. After some time, the accused ejaculated outside her vagina.

          At around four o’clock in the afternoon of the same day, AAA went to a neighbor, a certain “Kuya Gene” who is a Barangay Tanod, and informed him that she was raped by her own father. They then proceeded to the Barangay Hall and to the Police Headquarters to file a complaint against her father.^[6][5]

          AAA further testified that she did not tell her mother about the incident, because she knew the latter would not believe her. AAA averred that she was first raped by her father in 1993, and when she reported this to her mother, she was casually told to forget about the incident, because it would bring shame to their family.^[7][6]

          Dr. Emmanuel Reyes, a medico-legal expert who examined the private complainant after the alleged rape incident, testified that he found a shallow-healed laceration at a three o’clock position as well as a deep-healed laceration at a six o’clock position on the complainant’s labia minora which showed that she had been subjected to numerous sexual assaults.^[8][7]

          For the defense, Rubio took the witness stand. He described the place where the alleged rape occurred as a small house made of wood with one room, and a floor area of around 10 x 12 meters. At that time, three families were occupying the house including the complainant’s grandmother, aunt, uncle, and cousin. Considering the cramped space, the accused asserted that if anything happened within its confines, such as rape, it could be easily noticed by other persons in the room. He also declared that AAA, sometime in 1991, threatened to kill him because of his alleged womanizing.^[9][8]

Rulings of the RTC and the CA

          On June 30, 2008, the RTC rendered its Decision finding the accused guilty of qualified rape, the dispositive portion of which reads:

WHEREFORE, in light of the foregoing considerations, the prosecution having proved the guilt of the defendant BEN RUBIO y ACOSTA beyond reasonable doubt, he is hereby meted out the penalty of Reclusion Perpetua without eligibility of parole. Accused is likewise ordered to pay the victim the sum of Seventy Five Thousand Pesos (P75,000.00) as civil indemnity, Fifty Thousand Pesos (P50,000.00) as moral damages without necessity of proving the same. An amount of Twenty Five Thousand Pesos (P25,000.00) as exemplary damages is also in order to deter fathers with perverse behavior from sexually abusing their daughters.

The Warden of Nagpayong City Jail,PasigCity, Metro Manila is hereby directed to immediately transfer the defendant to the Bureau of Corrections, New Bilibid Prisons, Muntinlupa.

SO ORDERED.^[10][9]

            Rubio filed an appeal with the CA, which affirmed in toto the decision of the RTC. The decretal portion of the July 26, 2010 Decision of the CA reads:

            WHEREFORE, in view of the foregoing premises, the instant appeal is hereby ordered DISMISSED, and the appealed decision is AFFIRMED in toto.^[11][10]

Hence, We have this appeal.  The Office of the Solicitor General, for the People and by Manifestation and Motion, opted not to file a supplemental brief.  Accused-appellant entered a similar manifestation.   Thus, in resolving the instant appeal, We consider the issues and arguments he earlier raised in his Brief for the Accused-Appellant before the CA.

Accused-appellant raises the following issues for Our consideration:

1. THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED; AND

II.         THE COURT A QUO GRAVELY ERRED IN REJECTING THE ACCUSED-APPELLANT’S DEFENSE.^[12][11]

Our Ruling

          We uphold the ruling of the CA.

Guiding Principles in Rape Cases

          In deciding rape cases, We are guided by these three well-entrenched principles:

(a) an accusation for rape is easy to make, difficult to prove and even more difficult to disprove; (b) in view of the intrinsic nature of the crime, the testimony of the complainant must be scrutinized with utmost caution; and (c) the evidence of the prosecution must stand on its own merits and cannot draw strength from the weakness of the evidence for the defense.^[13][12]

As a result of these guiding principles, the credibility of the victim becomes the single most important issue.^[14][13]

Core Issue: Credibility of the Victim-Complainant

          When it comes to credibility, the trial court’s assessment deserves great weight, and is even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence.^[15][14] The reason is obvious. Having the full opportunity to observe directly the witnesses’ deportment and manner of testifying, the trial court is in a better position than the appellate court to evaluate testimonial evidence properly.^[16][15] As this Court held in People v. Gabrino:

We have held time and again that “the trial court’s assessment of the credibility of a witness is entitled to great weight, sometimes even with finality.”  As We have reiterated in the recent People v. Combate, where there is no showing that the trial court overlooked or misinterpreted some material facts or that it gravely abused its discretion, then We do not disturb and interfere with its assessment of the facts and the credibility of the witnesses.  This is clearly because the judge in the trial court was the one who personally heard the accused and the witnesses, and observed their demeanor as well as the manner in which they testified during trial.  Accordingly, the trial court, or more particularly, the RTC in this case, is in a better position to assess and weigh the evidence presented during trial.^[17][16]

Accused-appellant alleges that the testimony of the victim is replete with material inconsistencies and questions her credibility, to wit:

1. AAA first testified that she returned to their house on September 15, 1997^[18][17] but during cross-examination she stated that she returned to the house of her parents in 1999.^[19][18]

1. AAA alleged at one point that the accused-appellant had physically beaten her once prior to the sexual assault subject of the instant case^[20][19] but she then categorically stated that accused-appellant never laid a hand on her.^[21][20]

1. AAA at first alleged that there was a store in their house at the time of the rape,^[22][21] but later said it was already closed.^[23][22]

Although there are inconsistencies in AAA’s testimony, inaccuracies and inconsistencies in the rape victim’s testimony are to be expected.^[24][23] This Court finds that these inconsistencies are not material to the instant case. We held, “Rape victims are not expected to make an errorless recollection of the incident, so humiliating and painful that they might in fact be trying to obliterate it from their memory. Thus, a few inconsistent remarks in rape cases will not necessarily impair the testimony of the offended party.”^[25][24]

There is no showing that the trial court’s findings were tainted with arbitrariness or oversight; hence, the trial court’s finding as to the credibility of the victim is final and binding on this Court.

Furthermore, it bears stressing that testimonies of child victims are given full weight and credit, for youth and immaturity are badges of truth. In People v. Perez, the Court aptly held:

This Court has held time and again that testimonies of rape victims who are young and immature deserve full credence, considering that no young woman, especially of tender age, would concoct a story of defloration, allow an examination of her private parts, and thereafter pervert herself by being subject to a public trial, if she was not motivated solely by the desire to obtain justice for the wrong committed against her. Youth and immaturity are generally badges of truth. It is highly improbable that a girl of tender years, one not yet exposed to the ways of the world, would impute to any man a crime so serious as rape if what she claims is not true.^[26][25]

Elements of Qualified Rape Duly Proved

The elements of rape as provided in the Revised Penal Code (RPC) are as follows:

ART. 266-A. Rape, When and How Committed. – Rape is committed –

1. By a man who shall have carnal knowledgeof a woman under any of the following circumstances:
   
   
   
   1. Through force, threat or intimidation;
   
   
   2. When the offended party is deprived of reason or is otherwise unconscious;
   
   
   3. By means of fraudulent machination or grave abuse of authority;
   
   
   4. When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. (Emphasis supplied.)

And one of the aggravating circumstances that would qualify the crime and raise the penalty to death is:

ART. 266-B. Penalties –

x x x x

The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances:

1)      When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim. (Emphasis supplied.)

          The testimony of the victim-complainant is as follows:

Q:        On January 8, 2000 at about 2 o`clock in the afternoon, do you recall where you were?

A:         Yes, Sir.

Q:        Where were you then at the said date and time?

A:         I was at our room, sir.

Q:        What were you doing in your room at that time?

A:         I was sleeping, sir.

Q:        While you were sleeping was there anything unusual that happened?

x x x x

A:         Yes, sir.

Q:        What was that?

A:         Ben Rubio removed my shorts and my panty, sir.

Q:        What did you do when Ben Rubio removed your shorts and your panty?

A:         I pushed him, sir.

Q:        How did you know that it was Ben Rubio who removed your shorts and panty when you said you were sleeping at that time?

A:         When I woke up he was already in front of me, he was laying [sic] face down, sir.

Q:        You said Ben Rubio, if he is inside the courtroom will you be able to identify him?

A:         Yes, sir.

Q:        Will you point to him?

Interpreter:

            The witness pointed to the only accused seated on the first bench of the courtroom wearing yellow t-shirt and maong pants, who, when asked, identified himself as Ben Rubio.

Q:        You said that when Ben Rubio removed your shorts and panty you pushed him, were you able to push him?

A:         No, sir because he was stronger than me.

            Q:        Was he able to remove your shorts and panty?

            A:         Yes, sir.

Q:        What happened after he was able to remove your shorts and panty?

A:         He inserted his penis inside my vagina, sir.

Q:        What did you do when he inserted his penis inside your vagina?

A:         I resisted, sir.

Q:        How did you resist?

A:         I moved my body but I was not able to resist because he was stronger than me, sir.

Q:        Did you shout?

A:         No, sir.

Q:        Why?

A:         Because if I shout he would hurt me, sir.^[27][26]

The testimony of AAA stated that accused-appellant had carnal knowledge with her, and, thus, being AAA’s father, he is presumed to have employed force and/or intimidation.  The fear towards her father was more than enough to intimidate her to submit to his lewd advances without shouting for help.^[28][27]

The sole testimony of a rape victim, if credible, suffices to convict.^[29][28] The complainant’s testimony––if credible, natural, convincing, and consistent with human nature and the normal course of things––may suffice to support a conviction of rape.^[30][29] This Court finds that the testimony of AAA is straightforward and convincing with no inconsistency with regard to the material elements of the crime of rape.

Furthermore, the aggravating circumstances of minority and relationship were stipulated upon during pre-trial; thus, there is no further need to prove them during trial.

          Accused-appellant seeks to deny the charge against him by stating that the victim did not shout during the alleged bestial act. The Court has declared repeatedly that “[f]ailure to shout or offer tenacious resistance [does] not make voluntary [the victim’s] submission to [the perpetrator’s] lust. Besides, physical resistance is not an essential element of rape.”^[31][30]

          Accused-appellant further claims that it is unlikely that rape was committed, because the house where it allegedly occurred only has one room and was then being occupied by three families. This is of no consequence. This Court has reiterated that lust is no respecter of time and place.^[32][31] Rape may even be committed in the same room where other family members also sleep.^[33][32] Besides, it must be noted that the rape occurred in the early afternoon and not in the evening when the rest of the occupants are presumably sleeping in the cramped space.

Medical Findings Corroborate Rape

          Accused-appellant also questions the conclusion of the medical examination done by Dr. Reyes. He alleges that since the hymenal lacerations have already healed, then these could not have been due to what AAA claimed, and that even if there were lacerations, it could not be determined if he was the one who caused them.

          We are not convinced.

We must bear in mind that “a medical examination of the victim is not indispensable in a prosecution for rape inasmuch as the victim’s testimony alone, if credible, is sufficient to convict the accused of the crime. In fact, a doctor’s certificate is merely corroborative in character and not an indispensable requirement in proving the commission of rape.”^[34][33]

The presence of healed or fresh hymenal laceration is not an element of rape.^[35][34] However, it is the best physical evidence of forcible defloration.^[36][35] Thus, the findings of Dr. Reyes corroborate and support the testimony of AAA.

Proper Penalties

          Since all the elements of qualified rape were duly alleged and proved during the trial, the proper penalty should be death according to Article 266-B of the RPC. However, with the effectivity of Republic Act No. 9346, entitled An Act Prohibiting the Imposition of Death Penalty in the Philippines, the imposition of the supreme penalty of death has been prohibited. Pursuant to Section 2 of the Act, the penalty to be meted out should be reclusion perpetua without eligibility for parole.

The trial court correctly awarded PhP 75,000 as civil indemnity, but the amount of moral and exemplary damages awarded has to be modified consonant to current jurisprudence. Civil indemnity, which is actually in the nature of actual or compensatory damages, is mandatory upon the finding of the fact of rape.^[37][36] Moral damages are automatically granted in a rape case without need of further proof other than the fact of its commission, for it is assumed that a rape victim has actually suffered moral injuries entitling her to such an award.^[38][37] According to prevailing jurisprudence, the amount of moral damages should be PhP 75,000.^[39][38] Likewise, exemplary damages should have been PhP 30,000, and this is awarded in order to serve as public example and to protect the young from sexual abuse.^[40][39]

WHEREFORE, the Decision of the CA in CA-G.R. CR-H.C. No. 03489 is hereby AFFIRMED, with MODIFICATION in that the award of moral damages is increased to PhP 75,000 and exemplary damages to      PhP 30,000. The civil indemnity and damages shall earn interest at six percent (6%) per annum from finality of this Decision until fully paid.^[41][40] Costs against accused-appellant.

          SO ORDERED.

                                                          PRESBITERO J. VELASCO, JR.

                                                                      Associate Justice

WE CONCUR:

DIOSDADO M. PERALTA

Associate Justice

ROBERTO A. ABAD                            MARTIN S. VILLARAMA, JR.

     Associate Justice                                                 Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.

       Associate Justice

          Chairperson

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                                   RENATO C. CORONA

                                                                            Chief Justice