My Admin Digests

ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

D. LEGISLATIVE AND JUDICIAL CONTROL OF ADMINISTRATIVE DECISION MAKING (by: DEAN SALVADOR CARLOTA) - - discussed November 30, 2010

MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

GMA NETWORK, INC. V. MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB) GR No. 148579; February 5, 2007; J. Corona

“Muro Ami, The Making,” did not fall under any of the exemptions. In MTRCB V. ABS-CBN BROADCASTING CORP. (2005), SC held that even public affairs programs – a variety of news treatment; a cross between pure television news and news-related commercial analysis and/or exchange of opinions  Are within the MTRCB’s power of review.

TOPIC: PART III. POWERS AND FUNCTIONS OF ADMINISTRATIVE AGENCIES discussed DECEMBER 13, 2010, Tuesday A. LEGISLATIVE FUNCTION

2.) NO

4. PUBLICATION AND AFFECTIVITY Page 4 of syllabus

MC 98-17, was not binding, because it was not published or filed with the Office of the National Administrative Register (ONAR) as of January 27, 2000.

NATURE: Petition for Review RULE 45 of the CA decision.

The Administrative Code of 19872, expressly requires each agency to file with the ONAR of the UP Law Center, 3 certified copies of every rule adopted by it.

FACTS: On January 11, 2000, MRTCB suspended for 7 days, GMA Network Inc.’s UHF television station EMC Channel 27, for airing “Muro Ami: The Making” without first securing a permit from it as provided in SECTION 7 1 of PD 1986: LAW CREATING THE MTRCB. The penalty of suspension was based on MEMORANDUM CIRCULAR 98-17 dated December 15, 1998. CA AFFIRMED MTRCB. ISSUE/S: 1.) WON MTRCB has the power or authority to review the show “Muro Ami: The Making” prior to broadcast by television? 2.) WON MC 98-17 was enforceable and binding on petitioner? HELD: 1.) YES PD 1986: LAW CREATING MTRCB SECTION 3: empowers the MRTCB to screen, review and examine all motion pictures, television programs including publicity materials. 1

SECTION 7. REQUIREMENT OF PRIOR REVIEW: No motion picture, television program or related material shall be imported, exported, produced, copied, distributed, sold, leased, exhibited or broadcasted on television without prior permit issued by the BOARD after review of the motion picture, television program or publicity material. It is unlawful for any person or entity to exhibit or caused to be exhibited xxx by television in the Philippines any motion picture, television program xxx not duly authorized xxx and passed by the Board. The only exceptions are: a.) television programs imprinted or exhibited by the Philippine Government and/or departments and agencies; b.) newsreels.

Administrative issuances which are not published or filed with the ONAR are ineffective and may not be enforced. DISPOSITION: Petition PARTIALLY GRANTED. CA is affirmed as to MTRCB’s jurisdiction. Modification: suspension void. NOTE: this case is only 3 pages. 

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SECTION 3. FILING – (1.)

Every agency shall file with the UP Law Center 3 certified copies of every rule adopted by it.

Rules in force on the date of effectivity of this Code which are not filed within 3 months from that date shall not thereafter be the baiss of any sanction against any party or persons. (2.) The records officer of the agency, or his equivalent functionary, shall carry out the requirements of this section under pain of disciplinary action. (3.) A permanent register of all rules shall be kept by the issuing agency and shall be open to public inspection. SECTION 4. EFFECTIVITY. – In addition to other rule—making requirements provided by law not inconsistent with this Book, each rule shall become effective 15 days from the date of filing as above provided unless a different date is fixed by law, or specified in the rule in cases of imminent danger to public health, safety and welfare, the existence of which must be expressed in a statement accompanying the rule. The agency shall take appropriate measures to make emergency rules known to persons who may be affected by them. MARY ANN JOY R. LEE 2

ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

REPUBLIC OF THE PHILIPPINES, represented by DEPARTMENT OF ENERGY (DOE) V. PILIPINAS SHELL PETROLEUM CORPORATION GR No. 173918; April 8, 2008; J. Chico-Nazario TOPIC: PART III. POWERS AND FUNCTIONS OF ADMINISTRATIVE AGENCIES discussed DECEMBER 13, 2010, TUESDAY A. LEGISLATIVE FUNCTION 4. PUBLICATION AND AFFECTIVITY Page 4 of syllabus

SY 2010-2011

DOE required Shell to pay the surcharges subject to proceeding against Shell’s Irrevocable Standby Letter of Credit. Shell appealed to the Office of the President. The Office of the President affirmed DOE. CA reversed the Office of the President, MOF CIRCULAR 1-85 as amended was ineffective for failure to comply with the requirement to file with ONAR.3

NATURE: Petition for Review RULE 45 of the CA decision.

Even if the Circular was issued before the effectivity of The Administrative Code of 1987, Book 7, Chapter 2, SECTION 3 specifies that rules already in force at the date of effectivity of the Administrative Code of 1987 must be filed within 3 months from the effectivity of the code.

FACTS: On October 10, 1984 the government created the Oil Price Stabilization Fund (OPSF).

ISSUE: WON the MOF CIRC 1-85 was effective?

The Office of Energy Affairs (now DOE), informed Pilipinas Shell that their foreign exchange risk charge was insufficient: 1.) On December 4, 1991 – for the period December 1989 to March 1990:

 P14, 414, 860. 75; 2.) On December 9, 1991 – for the period April 1991 – October 1991: 

P10, 139, 526. 56.

They also charged surcharges of: 1) P11, 654, 782.31, 2) P 2, 806, 656. 65

HELD: No RATIO: Shell did not waive the requisite publication and filing of MOF CIRC 185 by paying the principal amount of its underpayment. Citing Tanada V. Tuvera (1986), SC enunciated that publication is indispensible in order that statures, including administrative rules that are intended to enforce or implement existing laws, attain binding force and effect: We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature.

pursuant to MOF CIRCULAR No. 1-85, as amended by DOF 2-94: 2. Remittance of paymjent to the OPSF as provided for under SECTION 5 of MOF Order No. 11-85 made not later than the 20 th of the month following the month of remittance of the foreign exchange payment of the import or the month of payment to thte domestic producers in case of locally produced crude.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution.

Period after the specified date shall be subject to a surcharge of 15% of the amount, id paid within 30 days from due date, plus 2% per month if paid after 30 days. Pilipinas Shell justified its calculations pursuant to a valid interpretation of the MOFs but nonetheless paid the principal amount of its underpayment: P24, 554, 387. 31 but not the surcharges.

Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. (Emphasis provided.) Publication and filing are safeguards against abuses on the part of lawmakers and as guarantees to the constitutional right to due process and to information on matters of public concern, and therefore, require compliance. 3

ONAR Certification dated February 9 & 11, 2004. MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

Citing: National Association of Electricity Consumers for Reforms V. Energy Regulatory Board (2006), SC emphasized that both publication and filing of administrative issuances intended to enforce existing laws are mandatory for the effectivity of said issuances: Nowhere from the above narration does it show that the GRAM Implementing Rules was published in the Official Gazette or in a newspaper of general circulation. Significantly, the effectivity clauses of both the GRAM and ICERA Implementing Rules uniformly provide that they shall take effect immediately. These clauses made no mention of their publication in either the Official Gazette or in a newspaper of general circulation. Moreover, per the Certification dated January 11, 2006 of the Office of the National Administrative Register (ONAR), the said implementing rules and regulations were not likewise filed with the said office in contravention of the Administrative Code of 1987. Applying the doctrine enunciated in Tañada v. Tuvera, the Court has previously declared as having no force and effect the following administrative issuances:

(1.)

Rules and Regulations issued by the Joint Ministry of HealthMinistry of Labor and Employment Accreditation Committee regarding the accreditation of hospitals, medical clinics and laboratories; (2.) Letter of Instruction No. 1416 ordering the suspension of payments due and payable by distressed copper mining companies to the national government; (3.) Memorandum Circulars issued by the Philippine Overseas Employment Administration regulating the recruitment of domestic helpers to Hong Kong; (4.) Administrative Order No. SOCPEC 89-08-01 issued by the Philippine International Trading Corporation regulating applications for importation from the People’s Republic of China; (5.) Corporation Compensation Circular No. 10 issued by the Department of Budget and Management discontinuing the payment of other allowances and fringe benefits to government officials and employees; and (6.) POEA Memorandum Circular No. 2 Series of 1983 which provided for the schedule of placement and documentation fees for private employment agencies or authority holders.

SY 2010-2011

In all these cited cases, the administrative issuances questioned therein were uniformly struck down as they were not published or filed with the National Administrative Register. On the other hand, in Republic v. Express Telecommunications Co., Inc, the Court declared that the 1993 Revised Rules of the National Telecommunications Commission had not become effective despite the fact that it was filed with the National Administrative Register because the same had not been published at the time. The Court emphasized therein that publication in the Official Gazette or a newspaper of general circulation is a condition sine qua non before statutes, rules or regulations can take effect. In this case, the GRAM Implementing Rules must be declared ineffective as the same was never published or filed with the National Administrative Register. To show that there was compliance with the publication requirement, respondents MERALCO and the ERC dwell lengthily on the fact that parties, particularly the distribution utilities and consumer groups, were duly notified of the public consultation on the ERC’s proposed implementing rules. These parties participated in the said public consultation and even submitted their comments thereon. However, the fact that the parties participated in the public consultation and submitted their respective comments is not compliance with the fundamental rule that the GRAM Implementing Rules, or any administrative rules whose purpose is to enforce or implement existing law, must be published in the Official Gazette or in a newspaper of general circulation. The requirement of publication of implementing rules of statutes is mandatory and may not be dispensed with altogether even if, as in this case, there was public consultation and submission by the parties of their comments. (Emphasis provided.) DISPOSITION: Petition is DENIED. CA is AFFIRMED.

ELISEO F. SORIANO V. LA GUARDIA MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

GR No. 164785; March 15, 2010; J. Velasco, Jr.

children and minors, and may be viewed without adult guidance or supervision."

TOPIC: PART III. POWERS AND FUNCTIONS OF ADMINISTRATIVE AGENCIES assigned for JANUARY 4, 2010

As previously discussed by the Court, the vulgar language petitioner used on prime-time television can in no way be characterized as suitable for all ages, and is wholly inappropriate for children.

A. LEGISLATIVE FUNCTION 7. EXAMPLES OF RULE-MAKING IN VARIOUS AGENCIES Page 5 of syllabus NATURE: Motion for Reconsideration of SC decision last April 29, 2009. FACTS: MTRCB imposed a 3 month suspension on the host: Eliseo F. Soriano4 of Ang Dating Daan. SC modified the MTRCB decision by imposing the suspension on the program, instead of on the host. ISSUE/S: 1.) WON the suspension constitutes prior restraint (violation of freedom of expression? 2.) WON Soriano’s utterances were in exercise of freedom of religion? 3.) WON the program is denied due process, for not being represented as a party? 4.) WON the utterances were obscene? HELD: 1.) the sanction imposed on the TV program partakes of the nature of subsequent pusnishment for past violation committed by petitioner. Ang Dating Daan has a "G" rating - the program must be "suitable for all ages," which, in turn, means that the "material for television [does not], in the judgment of the [MTRCB], x x x contain anything unsuitable for 4

On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan, aired on UNTV 37, made the following remarks:

2.) There is nothing in petitioner’s statements subject of the complaints expressing any particular religious belief, nothing furthering his avowed evangelical mission. The fact that he came out with his statements in a televised bible exposition program does not automatically accord them the character of a religious discourse. Plain and simple insults directed at another person cannot be elevated to the status of religious speech. Even petitioner’s attempts to place his words in context show that he was moved by anger and the need to seek retribution, not by any religious conviction. His claim, assuming its veracity, that some INC ministers distorted his statements respecting amounts Ang Dating Daan owed to a TV station does not convert the foul language used in retaliation as religious speech. We cannot accept that petitioner made his statements in defense of his reputation and religion, as they constitute no intelligible defense or refutation of the alleged lies being spread by a rival religious group. They simply illustrate that petitioner had descended to the level of namecalling and foul-language discourse. Petitioner could have chosen to contradict and disprove his detractors, but opted for the low road. Citing INC V. CA (1996)

Lehitimong anak ng demonyo; sinungaling;

“We thus reject petitioner’s postulate that its religious program is per se beyond review by the respondent [MTRCB].

Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito. x x x

Its public broadcast on TV of its religious program brings it out of the bosom of internal belief. MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

In Action for Children’s Television v. FCC (1995), a US case has a socalled "safe harbor" of 10:00 p.m. to 6:00 a.m., adverted to in Action for Children’s Television as the time wherein broadcast of indecent material may be permitted, is believed inapplicable here.

Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e. serious detriment to the more overriding interest of public health, public morals, or public welfare.

As it were, there is no legislative enactment or executive issuance setting a similar period in the Philippines wherein indecent material may be broadcast. Rather than fix a period for allowing indecent programming, what is used in this jurisdiction is the system of classification of television programs, which the petitioner violated.

A laissez faire policy on the exercise of religion can be seductive to the liberal mind but history counsels the Court against its blind adoption as religion is and continues to be a volatile area of concern in our country today. Across the sea and in our shore, the bloodiest and bitterest wars fought by men were caused by irreconcilable religious differences. Our country is still not safe from the recurrence of this stultifying strife considering our warring religious beliefs and the fanaticism with which some of us cling and claw to these beliefs. x x x For when religion divides and its exercise destroys, the State should not stand still.8 (Emphasis added.)” Freedoms encased in the Bill of Rights are far from absolute.

DISPOSITION: Petition DENIED.

J. CARPIO, dissenting opinion: ♥ The freedom of expression clause is precisely a guarantee against both prior restraint and subsequent punishment.

♥ It protects from any undue interference by the government the people's right to freely speak their minds.

♥ The guarantee rests on the principle that freedom of expression is

essential to a functioning democracy and suppression of expression leads to authoritarianism.

Each has its own limits, responsibilities and obligations. Everyone is expected to bear the burden implicit in the exercise of these freedoms.

♥

Prior restraint has been defined as official governmental restrictions on any form of expression in advance of actual dissemination.

3.) No, Eliseo Soriano is “the Executive Producer of Ang Dating Daan”

♥

But the mere prohibition of government interference before words are spoken is not an adequate protection of the freedom of expression if the government could arbitrarily punish after the words have been spoken.

♥

The threat of subsequent punishment itself would operate as a very effective prior restraint.

♥

Any form of prior restraint bears a presumption against its constitutional validity.

♥

The burden is on the censor to justify any imposition of prior restraint, not on the censored to put up a defense against it.

4.) The defining standards to be employed in judging the harmful effects of the statements petitioner used would be those for the average child, not those for the average adult.

The suspension of the program is sufficiently limited disciplinary action, both: (a.) to address the violation; and (b.) as lesson for the future.

MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

♥

In the case of print media, it has been held that just because press freedom may sometimes be abused does not mean that the press does not deserve immunity from prior restraint.

♥

The settled rule is that any such abuse may be remedied by subsequent punishment.

♥

This Court, in Eastern Broadcasting Corporation v. Dans, Jr. (222 Phil. 151), laid down the following guideline: “All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule - that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent.”

♥

Chief Justice Fernando expounded on the meaning of the "clear and present danger" test in Gonzalez v. Chairman Katigbak (222 Phil 225), to wit:

SY 2010-2011

♥

One of the established EXCEPTIONS in freedom of expression is speech characterized as OBSCENE.

♥

The leading test for determining what material could be considered obscene was the famous Regina v. Hicklin(1868) case wherein Lord Cockburn enunciated thus: “I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”

♥

Judge Learned Hand, in United States v. Kennerly (1913), opposed the strictness of the Hicklin test even as he was obliged to follow the rule. “I hope it is not improper for me to say that the rule as laid down, however consonant it may be with mid-Victorian morals, does not seem to me to answer to the understanding and morality of the present time.”

♥

Roth v. United States (1957) laid down the more reasonable and thus, more acceptable test for obscenity:

“The test, to repeat, to determine whether freedom of expression may be limited is the clear and present danger of an evil of a substantive character that the State has a right to prevent.

"whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."

Such danger must not only be clear but must also be present.

Such material is defined as that which has "a tendency to excite lustful thoughts," and "prurient interest" as "a shameful or morbid interest in nudity, sex, or excretion."

There should be no doubt that what is feared may be traced to the expression complained of. The causal connection must be evident.

♥

Also, there must be reasonable apprehension about its imminence. The time element cannot be ignored.

Miller v. California (1973) merely expanded the Roth test to include two additional criteria: 1.) "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 2.) the work, taken as whole, lacks serious literary, artistic, political, or scientific value."

Nor does it suffice if such danger be only probable. There is the requirement of its being well-nigh inevitable.

♥

Where the medium of a television broadcast is concerned, as in the case at hand, well-entrenched is the rule that censorship is allowable only under the clearest proof of a clear and present danger of a substantive evil to public safety, public morals, public health, or any other legitimate public interest.”

The basic test, as applied in our jurisprudence, extracts the essence of both Roth and Miller – that is, whether the material appeals to prurient interest.

♥

The present controversy emanated from the alleged splicing of a video recording wherein petitioner was supposedly made to appear as if he was MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

asking for contributions to raise 37 trillion pesos instead of the allegedly true amount of 3.6 million pesos.

The case involved a radio broadcast of "Filthy Words," a 12-minute monologue by American stand-up comedian and social critic, George Carlin.

♥

The video was played by ministers of Iglesia ni Cristo in their television program "Ang Tamang Daan."

♥

J. Carpio cited the exchange between Bro. Josel Mallari, Bro. Eli Soriano and Bro. Manny Catangay Jusay – wherein the excerpt was taken.

♥

The subject speech cannot, by any stretch of the imagination, be said to appeal to any prurient interest.

Worthy of note, in Pacifica, the FCC did not resort to any subsequent punishment, much less any prior restraint.

♥

The highlighted portion of the verbal exchange between the two feuding religious groups is utterly bereft of any tendency to excite lustful thoughts as to be deemed obscene.

The station was not suspended for the broadcast of the monologue, which the U.S. Supreme Court merely considered indecent speech based on the context in which it was delivered.

♥

The majority's finding of obscenity is clearly untenable.

♥

But such overbroad standard must be struck down for it indiscriminately infringes upon free speech.

According to the U.S. Supreme Court, the monologue would have been protected were it delivered in another context.

♥

The subject speech in this case may, at most, be considered indecent speech.

♥

Indecent speech conveyed through the medium of broadcast is a case of first impression in our jurisdiction.

♥

However, this issue has been settled in American case law, which has persuasive influence in our jurisprudence.

Appended to the decision was a verbatim transcript prepared by the Federal Communications Commission. The original seven words were: shit, piss, fuck, cunt, cocksucker, motherfucker, and tits.

The monologue was broadcast at 2:00 p.m., when children were presumptively in the audience.

♥

In this case, the subject speech by petitioner was broadcast starting 10:00 p.m. onwards, clearly within the safe harbor period as established in Action for Children's Television.

There, the rule is that indecent speech is protected depending on the context in which it is spoken. The concept of what is "indecent" is intimately connected with the exposure of children to language that describes, in terms patently offensive, as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.

♥

FCC v. Pacifica Foundation (1978) is the landmark U.S. case on the regulation of indecent speech in broadcast.

A later case, Action for Children's Television v. FCC (1995), establishes the safe harbor period to be from 10:00 in the evening to 6:00 in the morning, when the number of children in the audience is at a minimum.

Correctly applying Pacifica's context-based ruling, petitioner's speech, if indeed indecent, enjoys constitutional protection and may not be sanctioned. ♥

The rule on this matter, as laid down by Pacifica in relation to Action for Children's Television, is crystal-clear.

♥

But should the majority still have any doubt in their minds, such doubt should be resolved in favor of free speech and against any interference by government.

♥

The suspension of "Ang Dating Daan" by the MTRCB was a content-based, not a content-neutral regulation.

MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

Thus, the suspension should have been subjected to strict scrutiny following the rule in Chavez v. Gonzales (2008). The test should be strict because the regulation went into the very heart of the rationale for the right to free speech – that speech may not be prohibited just because government officials disapprove of the speaker's views. ♥

The majority misapplied the doctrine of FCC v. Pacifica, the leading jurisprudence on this matter.

♥

Pacifica did not hold that indecent speech, when conveyed through a medium easily accessible to children, would automatically be outside the constitutional protection.

The "balancing of interests" test requires that a determination must first be made whether the necessary safeguarding of the public interest involved may be achieved by some other measure less restrictive of the protected freedom.

♥

The majority immediately resorted to outright suspension without first exploring other measures less restrictive of freedom of speech. It cites MTRCB v. ABS-CBN Broadcasting Corporation (2005) in justifying the government's exercise of regulatory power. But the ABS-CBN case involved a mere fine as punishment, not a prior restraint in the form of suspension as in this case. In the cited case, one of the episodes of "The Inside Story," a television program of ABS-CBN, was aired without prior review and approval by the MTRCB. For this omission, the MTRCB subsequently fined ABS-CBN in the amount of P20,000.

On the contrary, the U.S. Supreme Court emphasized the narrowness of its ruling in Pacifica. The guideline that Pacifica laid down is that the broadcast of a monologue containing indecent speech could be considered protected or unprotected depending on the context, that is, the time of the day or the night when the indecent utterances were delivered.

♥

♥

Further, the majority opinion held that even if petitioner's utterances were not obscene but merely indecent speech, they would still be outside of the constitutional protection because they were conveyed through a medium easily accessible to children.

♥

♥

SY 2010-2011

However, even as the television station was fined, the program continued to be aired and was never suspended. ♥

Prior restraint is simply uncalled for in this case where what is involved is not even obscene speech, but mere indecent speech.

The majority's ruling in this case sets a dangerous precedent. This decision makes it possible for any television or radio program, on the slightest suspicion of being a danger to national security or on other pretexts, to likewise face suspension. The exacting "clear and present danger" test is dispensed with to give way to the "balancing of interests" test in favor of the government's exercise of its regulatory power. Granting without conceding that "balancing of interests" is the appropriate test in setting a limitation to free speech, suspension of a television program is a measure way too harsh that it would be inappropriate as the most reasonable means for averting a perceived harm to society. The restriction on freedom need not be greater than is necessary to further the governmental interest

Indeed, prior restraint by suspension is an extreme measure that may only be imposed after satisfying the "clear and present danger" test, which requires the perceived danger to be both grave and imminent.

Note too, that the subject utterances in this case were broadcast starting 10:00 p.m. onwards, well within the safe harbor period for permissible television broadcast of speech which may be characterized as indecent. ♥

Suspension of the program stops not only petitioner, but also the other leaders of his congregation from exercising their constitutional right to free speech through their medium of choice, which is television. The majority opinion attempts to assuage petitioner's misery by saying that petitioner can still exercise his right to speak his mind using other venues. But this proposition assumes that petitioner has access to other venues where he may continue his interrupted exercise of free speech using his chosen mode, television broadcast. MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

♥

While we may not agree with petitioner's choice of language in expressing his disgust in this word war between two feuding religious groups, let us not forget that freedom of speech includes the expression of thoughts that we do not approve of, not just thoughts that are agreeable.

♥

To paraphrase Voltaire: We may disapprove of what petitioner has said, but we must defend to the death his right to say it.

♥

The three-month suspension cannot be passed off merely as a preventive suspension that does not partake of a penalty. The actual and real effect of the three-month suspension is a prior restraint on expression in violation of a fundamental constitutional right.

♥

Even Congress cannot validly pass a law imposing a three-month preventive suspension on freedom of expression for offensive or vulgar language uttered in the past. Congress may punish such offensive or vulgar language after their utterance, with damages, fine, or imprisonment; but Congress has no power to suspend or suppress the people's right to speak freely because of such utterances. In short, Congress may pass a law punishing defamation or tortious speech but the punishment cannot be the suspension or suppression of the constitutional right to freedom of expression. Otherwise, such law would be abridging the freedom of speech, of expression, or of the press. If Congress cannot pass such a law, neither can respondent MTRCB promulgate a rule or a decision suspending for three months petitioner's constitutional right to freedom of speech. And of course, neither can this Court give its stamp of imprimatur to such an unconstitutional MTRCB rule or decision.

♥

Justice Oliver Wendell Holmes – that the market place of ideas is still the best alternative to censorship. The market place of ideas makes freedom of speech robust and allows people to be more tolerant of opposing views.

SY 2010-2011

It has been said that freedom of speech is not only to freely express oneself within the context of the law but also to hear what others say, that all may be enlightened, regardless of how obnoxious or erroneous the opposing views may be.

J. ABAD, dissenting opinion:

♥ INC’s program Ang Tamang Daan host: Michael M. Sandoval (Michael) of the Iglesia ni Cristo attacked petitioner Soriano of the Ang Dating Daan for alleged inconsistencies in his Bible teachings.

♥ Eliseo Soriano in apparent reaction to what he perceived as a malicious

attack against him by the rival television program, accused Michael of prostituting himself with his fabricated presentations.

♥ Ang Dating Daan is a nationwide television ministry of a church organization officially known as "Members of the Church of God International" headed by petitioner Soriano.

It is a vast religious movement not so far from those of Mike Velarde’s El Shadai, Eddie Villanueva’s Jesus is Lord, and Apollo Quiboloy’s The Kingdom of Jesus Christ. These movements have generated such tremendous following that they have been able to sustain daily television and radio programs that reach out to their members and followers all over the country. Some of their programs are broadcast abroad. Ang Dating Daan is aired in the United States and Canada. The Catholic Church is of course the largest religious organization in the Philippines. If its members get their spiritual nourishments from attending masses or novenas in their local churches, those of petitioner Soriano’s church tune in every night to listen to his televised Bible teachings and how these teachings apply to their lives. They hardly have places of worship like the Catholic Church or the mainstream protestant movements.

MARY ANN JOY R. LEE

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ADMIN LAW digests

♥

PROF JARDELEZA (syllabus: Dean Carlota)

Thus, suspending the Ang Dating Daan television program is the equivalent of closing down their churches to its followers. Their inability to tune in on their Bible teaching program in the evening is for them like going to church on Sunday morning, only to find its doors and windows heavily barred. Inside, the halls are empty.

♥

Do they deserve this? No. 1.) A tiny moment of lost temper. Petitioner Soriano’s Bible ministry has been on television continuously for 27 years since 1983 with no prior record of use of foul language. For a 15-second outburst of its head at his bitterest critics, it seems not fair for the Court to close down this Bible ministry to its large followers altogether for a full quarter of a year. It is like cutting the leg to cure a smelly foot. 2.) Not Obscene Primarily, it is obscenity on television that the constitutional guarantee of freedom of speech does not protect. As the Court’s decision points out, the test of obscenity is whether the average person, applying contemporary standards, would find the speech, taken as a whole, appeals to the prurient interest. A thing is prurient when it arouses lascivious thoughts or desires or tends to arouse sexual desire. A quarter-of-a-year suspension would probably be justified when a general patronage program intentionally sneaks in snippets of lewd, prurient materials to attract an audience to the program.

SY 2010-2011

It was just "indecent." But were his words and their meaning utterly indecent? In a scale of 10, did he use the grossest language? He did not. First, Soriano actually exercised some restraints in the sense that he did not use the vernacular word for the female sexual organ when referring to it, which word even the published opinions of the Court avoided despite its adult readers. He referred to it as "yung ibaba" or down below. And, instead of using the patently offensive vernacular equivalent of the word "fuck" that describes the sexual act in which the prostitute engages herself, he instead used the word "gumagana lang doon yung ibaba" or what functions is only down below. At most, his utterance merely bordered on the indecent. Second, the word "puta" or "prostitute" describes a bad trade but it is not a bad word. The world needs a word to describe it. "Evil" is bad but the word "evil" is not; the use of the words "puta" or "evil" helps people understand the values that compete in this world. A policy that places these ordinary descriptive words beyond the hearing of children is unrealistic and is based on groundless fear. Surely no member of the Court will recall that when yet a child his or her hearing the word "puta" for the first time left him or her wounded for life. Third, Soriano did not tell his viewers that being a prostitute was good.

This has not been the case here.

He did not praise prostitutes as to make them attractive models to his listeners.

3.) Merely Borders on “Indecent”

Indeed, he condemned Michael for acting like a prostitute in attacking him on the air.

Actually, the Court concedes that petitioner Soriano’s short outburst was not in the category of the obscene.

The trouble is that the Court, like the MTRCB read his few lines in isolation. MARY ANN JOY R. LEE

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Actually, from the larger picture, Soriano appears to have been provoked by Michael’s resort to splicing his speeches and making it appear that he had taught inconsistent and false doctrines to his listeners. If Michael’s sin were true, Soriano was simply defending himself with justified anger. And fourth, the Court appears to have given a literal meaning to what Soriano said. This was a figure of speech. Michael was a man, so he could not literally be a female prostitute. Its real meaning is that Michael was acting like a prostitute in mouthing the ideas of anyone who cared to pay him for such service. It had no indecent meaning. The Bible itself uses the word "prostitute" as a figure of speech. "By their deeds they prostituted themselves," said Psalm 106:39 of the Israelites who continued to worship idols after God had taken them out of Egyptian slavery.” Soriano’s real message is that Michael prostituted himself by his calumny against him. If at all, petitioner Soriano’s breach of the rule of decency is slight, one on a scale of 10. Still, the Court would deprive the Ang Dating Daan followers of their nightly bible teachings for a quarter of a year because their head teacher had used figures of speech to make his message vivid. 4.) The Average Child is a listener The Court claims that, since Ang Dating Daan carried a general patronage rating, Soriano’s speech no doubt caused harm to the children who watched the show. This statement is much too sweeping.

SY 2010-2011

The Court relies on the United States case of Federal Communications Commission (FCC) v. Pacifica Foundation, a 1978 landmark case, regarding a monologue aired on the radio at 2pm. The U.S. Supreme Court held that the above is not protected speech and that the FCC could regulate its airing on radio. The U.S. Supreme Court was of course correct. Here, however, there is no question that Soriano attacked Michael, using figure of speech, at past 10:00 in the evening, not at 2:00 in the afternoon. The average Filipino child would have been long in bed by the time Ang Dating Daan appeared on the television screen. What is more, Bible teaching and interpretation is not the stuff of kids. It is not likely that they would give up programs of interest to them just to listen to Soriano drawing a distinction between "faith" and "work or action." The Court has stretched the "child" angle beyond realistic proportions. The MTRCB probably gave the program a general patronage rating simply because Ang Dating Daan had never before been involved in any questionable broadcast in the previous 27 years that it had been on the air. The monologue in the FCC case that was broadcast at 2 in the afternoon was pure indecent and gross language, uttered for its own sake with no social value at all. It cannot compare to Soriano’s speech where the indecent words were slight and spoken as mere figure of speech to defend himself from what he perceived as malicious criticism. 5.) Disproportionate Penalty The Court applied the balancing of interest test in justifying the imposition of the penalty of suspension against Ang Dating Daan. Under this test, when particular conduct is regulated in the interest of public order and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

two conflicting interests demands the greater protection under the particular circumstances presented.

This has precedent. In Gonzales v. Katigbak (1985), the Court did not ban the motion picture just because there were suggestive scenes in it that were not fit for children.

An example of this is where an ordinance prohibits the making of loud noises from 9:00 p.m. to 6:00 a.m. The Court would probably uphold the ordinance since public interest demands a quiet night’s rest for all and since the restraint on the freedom of speech is indirect, conditional, and partial. But here, the abridgment of speech—three months total suspension of the Ang Dating Daan television bible teaching program—cannot be regarded as indirect, conditional, or partial. It is a direct, unconditional, and total abridgment of the freedom of speech, to which a religious organization is entitled, for a whole quarter of a year.

It simply classified the picture as for adults only. ♥

I vote to raise the program’s restriction classification from G or General Patronage to PG or with Parental Guidance for three months with warning that should petitioner Soriano commit the same violation, the classification of his program will be permanently changed or, if the violation is persistent, the program will be altogether cancelled.

In the American case of FCC, a parent complained. He was riding with his son in the car at 2:00 in the afternoon and they heard the grossly indecent monologue on radio.

♥

Here, no parent has in fact come forward with a complaint that his child had heard petitioner Soriano’s speech and was harmed by it. The Court cannot pretend that this is a case of angry or agitated parents against Ang Dating Daan. The complaint here came from Iglesia ni Cristo preachers and members who deeply loathed Soriano and his church. The Court’s decision will not be a victory for the children but for the Iglesia ni Cristo, finally enabling it to silence an abhorred competing religious belief and its practices. What is more, since this case is about protecting children, the more appropriate penalty, if Soriano’s speech during the program mentioned was indecent and had offended them, is to raise his program’s restriction classification. The MTRCB classify programs to protect vulnerable audiences. It can change the present G or General Patronage classification of Ang Dating Daan to PG or "with Parental Guidance only" for three months. MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)

DAGAN V. PHILIPPINE RACING COMMISSIONS February 12, 2009; J. Tinga; GR No. 175220 TOPIC: PART III. POWERS AND FUNCTIONS OF ADMINISTRATIVE AGENCIES assigned for JANUARY 4, 2010 A. LEGISLATIVE FUNCTION 7. EXAMPLES OF RULE-MAKING IN VARIOUS AGENCIES Page 5 of syllabus NATURE: Petition for Review RULE 45 of the CA decision. FACTS: On August 11, 2004, Philippine Racing Commission (PHIL RA COM) issued a DIRECTIVE, pursuant to ADMINISTRATIVE ORDER No. 5 5 (March 28, 1994) by the Department of Agriculture directing the: 1.) Manila Jockey Club, Inc. (MJCI) and 2.) Philippine Racing Club, Inc (PRCI)

1: To immediately come up with their respective Clubs’ House Rule to 2:

address Equine Infectious Anemia6 (EIA) problem and to rid their facilities of horses infected with EIA.

MJCI and PRCI ordered the owners of racehorses stables in their establishments to submit the horses to blood sampling and administration of the Coggins Test to determine whether they are with the EIA virus. 5

Declaring it unlawful for any person, firm or corporation to ship, drive or transport horses from any locality or place except when accompanied by a certificate issued by the authority of the Director of the Bureau of Animal Industry (BAI). 6

Equine Infectious Anemia (EIA) is an infectious and potentially fatal viral disease of members of the horse family.

The equine infectious anemia virus (EIAV) is categorized as a lentivirus: it contains genetic RNA material, which it uses to produce DNA. This DNA is then incorporated into the genetic makeup of infected cells. Identified in France in 1843 and first tentatively diagnosed in the United States in 1888, EIA has commanded a great deal of attention over the years. No vaccine or treatment exists for the disease. EIAV is the first lentivirus-induced disease proven to be transmitted by insects.

SY 2010-2011

PHIL RA COM issued copies of the guidelines for monitoring and eradition of EIA. Petitioners and racehorse owners: 1.) William Dagan (Dagan), 2.) Carlos Reyes, 3.) Narciso Morales, 4.) Bonifacio Montilla, 5.) Cezar Azurin, 6.) Weitong Lim, 7.) Ma. Teresa Trinidad and 8.) Ma. Carmelita Florentino refused to comply with the directive.

1.) First, they alleged that there had been no prior consultation with horse owners.

2.) Second, they claimed that neither official guidelines nor regulations had been issued relative to the taking of blood samples.

3.) Third, they asserted that no documented case of EIA had been presented to justify the undertaking.

The horses, whose owners refused to comply were: (1.) Banned from the races; (2.) Removed from the actual day of the race; (3.) Prohibited from Renewing their licenses; OR (4.) Evicted from their stables Racehorse owners filed a complaint with the Office of the President, which directed PHIL RA COM to investigate the matter. RTC issued TRO. Dagan refused to comply with the directives because according to him, the same are unfair – his horses are found positive with EIA. RTC – 2 issues: 1.) WON there were valid grounds for TRO NO 2.) WON the Guidelines issued were valid YES, valid exercise of police power CA affirmed RTC. ♥ PD No. 8, SECTION 8 vested PHILRACOM with exclusive jurisdiction over and control of the horse racing industry. MARY ANN JOY R. LEE

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♥ PD 420 – endows PHILRACOM with the power to prescribe Rules and

Regulations not otherwise inconsistent with the PD; and to perform such duties and exercise all powers incidental or necessary to the accomplishment of its aims and objectives.

ISSUE/S: WON the Directive and the Guidelines are valid? HELD: Yes

SY 2010-2011

In Abella, Jr. v. Civil Service Commission (2004), this Court had the occasion to rule that prior notice and hearing are not essential to the validity of rules or regulations issued in the exercise of quasi-legislative powers since there is no determination of past events or facts that have to be established or ascertained.

RATIO: There is no delegation of power to speak of between Philracom, as the delegator and MJCI and PRCI as delegates.

Delagation is valid only if the law: (a.) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and

The Philracom directive is merely instructive in character.

(b.)

fixes a standard—the limits of which are sufficiently determinate and determinable—to which the delegate must conform in the performance of his functions.

REQUISITES FOR VALIDITY: (a.)

A sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it.

Its promulgation must be authorized by legislature;

Complied with by PD 420.

It indicates the circumstances under which the legislative command is to be effected.

potestas delegate non delegare potest This rule is based upon the ethical principle that such delegated power constitutes not only a right but a duty to be performed by the delegate by the instrumentality of his own judgment acting immediately upon the matter of legislation and not through the intervening mind of another. This rule however admits of recognized exceptions7 such as: the grant of rule-making power to administrative agencies. They have been granted by Congress with the authority to issue rules to regulate the implementation of a law entrusted to them. Delegated rule-making has become a practical necessity in modern governance due to the increasing complexity and variety of public functions. (b.) It must procedure; 7

be

promulgated

in

accordance

with

prescribed

OTHER EXCEPTIONS: (b.) Delegation of tariff powers to the President under the CONSTITUTION, ARTICLE VI, SECTION 28 (2). (c.) Delegation of Emergency Powers to the President under the CONSTITUTION, ARTICLE VI, SECTION 23 (2). (d.) Delegation to the People at large; (e.) Delegation to local governments.

PHILRACOM was created for the purpose of carrying out the declared policy in PD 420 SECTION 1 – to promote and direct the accelerated development and continued growth of horse racing not only in pursuance of the sports development program but also in order to insure the full exploitation of the sport as a source of revenue and employment." Furthermore, Philracom was granted exclusive jurisdiction and control over every aspect of the conduct of horse racing, including the framing and scheduling of races, the construction and safety of race tracks, and the security of racing. P.D. No. 420 is already complete in itself. Section 9 of the law fixes the standards and limitations to which Philracom must conform in the performance of its functions, to wit: SECTION 9. SPECIFIC POWERS. SPECIFICALLY, THE COMMISSION SHALL HAVE THE POWER: a. To enforce all laws, decrees and executive orders relating to horse-racing that are not expressly or implied repealed or modified by MARY ANN JOY R. LEE

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SY 2010-2011

this Decree, including all such existing rules and regulations until otherwise modified or amended by the Commission;

(c.) It must be within the scope of the authority given by the legislature;

b. To prescribe additional rules and regulations not otherwise inconsistent with this Decree;

While it is conceded that the guidelines were issued a month after Philracom’s directive, this circumstance does not render the directive nor the guidelines void.

c. To register race horses, horse owners or associations or federations thereof, and to regulate the construction of race tracks and to grant permit for the holding of races; d. To issue, suspend or revoke permits and licenses and to impose or collect fees for the issuance of such licenses and permits to persons required to obtain the same; e. To review, modify, approve or disapprove the rules and regulations issued by any person or entity concerning the conduct of horse races held by them; f. To supervise all such race meeting to assure integrity at all times. It can order the suspension of any racing event in case of violation of any law, ordinance or rules and regulations; g. To prohibit the use of improper devices, drugs, stimulants or other means to enhance or diminish the speed of horse or materially harm their condition; h. To approve the annual budget of the omission and such supplemental budgets as may be necessary; i. To appoint all personnel, including an Executive Director of the Commission, as it may be deem necessary in the exercise and performance of its powers and duties; and j. To enter into contracts involving obligations chargeable to or against the funds of the Commission. (Emphasis supplied) Clearly, there is a proper legislative delegation of rule-making power to Philracom.

The directive’s validity and effectivity are not dependent on any supplemental guidelines. Philracom has every right to issue directives to MJCI and PRCI with respect to the conduct of horse racing, with or without implementing guidelines. The administrative body may not make rules and regulations which are inconsistent with the provisions of the Constitution or a statute, particularly the statute it is administering or which created it, or which are in derogation of, or defeat, the purpose of a statute. The assailed guidelines prescribe the procedure for monitoring and eradicating EIA. These guidelines are in accord with Philracom’s mandate under the law to regulate the conduct of horse racing in the country. (d.)

It must be reasonable.

Clearly too, for its part Philracom has exercised its rule-making power in a proper and reasonable manner. More specifically, its discretion to rid the facilities of MJCI and PRCI of horses afflicted with EIA is aimed at preserving the security and integrity of horse races. The assailed guidelines discriminatory.

do

not

appear

to

be

unreasonable

or

In fact, all horses stabled at the MJCI and PRCI’s premises underwent the same procedure. The guidelines implemented were undoubtedly reasonable as they bear a reasonable relation to the purpose sought to be accomplished, i.e., the complete riddance of horses infected with EIA. MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

DISPOSITION: Petition DISMISSED.

MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

MANILA INTERNATIONAL AIROPRT AUTHORITY V. AIRSPAN CORPORATION 445 SCRA 471; 2004; May hard copy nung original from blessings – no need to print orig case TOPIC: PART III. POWERS AND FUNCTIONS OF ADMINISTRATIVE AGENCIES assigned for JANUARY 4, 2010 A. LEGISLATIVE FUNCTION 7. EXAMPLES OF RULE-MAKING IN VARIOUS AGENCIES FIXING OF RATES, WAGES, PRICES Page 5 of syllabus

MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

CARINO V. COMMISSION ON HUMAN RIGHTS 204 SCRA 483; 1991 TOPIC: PART IV. ADMINISTRATIVE PROCEDUE assigned for JANUARY 4, 2010 C. IN ADJUDICATION OF CASES 3. JURISDICTION Page 9 of syllabus NOTE: may digest sa page 53 ng B2005 reviewer

MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

PHILIPPINE AIRLINES, INC. V. CAB 270 SCRA 538; 1997; TOPIC: PART IV. ADMINISTRATIVE PROCEDUE assigned for , 2011 C. IN ADJUDICATION OF CASES 3. JURISDICTION Page 9 of syllabus NOTE: may digest sa p. 55 ng B2005 reviewer

MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

PHILIPPINE MOVIE PICTURES WORKERS ASS’N V. PREMIER PRODUCTION 92 PHIL. 844; 1953; TOPIC: PART IV. ADMINISTRATIVE PROCEDUE assigned for: , 2011 C. IN ADJUDICATION OF CASES 5. RULES OF EVIDENCE Page 10 of syllabus NOTE: may digest sa p. 59 ng B2005 reviewer

MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)

UPCB V. E. GUANZON, INC. GR No. 168859; June 30, 2009; J. Chico-Nazario TOPIC: PART V. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS assigned for , 2011 A. FACTORS AFFECTING FINALITY OF ADMINISTRATIVE DECISIONS Page 10 of syllabus NATURE: 2 Consolidated Petitions for Review RULE 45 of CA decision. FACTS: Beginning 1995, EGI availed of credit facilities from UCPB to finance their expansion, mortgaging its condo unit inventories as security. EGI defaulted in payments. EGI and UCPB entered into a Memorandum of Agreement (MOA) to settle the loans of P915, 838, 822.50 through dacion en pago of the mortgaged properties valued at P904, 491, 052. UCPB proceeded to foreclose the properties but the proceeds amounted to only P723, 592, 000 which was applied to the principal. EGI transferred additional properties by way of dacion en pago to UCPB but noted an increase of the balance remaining. EGI discovered a UCPB Internal Memorandum whereby there are 2 columns: “ACTUAL” vs. “DISCLOSED TO EGI.” UCPB claims that the “ACTUAL” column was how the amounts were recorded in accordance with the MANUAL OF ACCOUNTS FOR BANKS, MANUAL OF REGULATIONS OF BANKS and BSP CIRCULAR No. 202. UCPB filed a criminal case for theft and/or discovery of secrets against EGI. The case was dismissed by the Office of the Prosecutor of Makati and DOJ.

SY 2010-2011

EGI filed with the BSP an administrative complaint for violations of SECTIONS 368 and 379 of RA 6753: NEW CENTRAL BANK ACT, ARTICLE IV, in relation to RA 8791: GENERAL BANKING LAW OF 2000, SECTION 55.1 (a.)10, and for the commission of irregularities and conducting business in an unsafe or unsound manner. BSP dismissed the complaint. CA reversed the BSP dismissal remanding the case for further proceedings.

8

SECTION 36. PROCEEDINGS UPON VIOLATION OF THIS ACT AND OTHER BANKING LAWS, RULES, REGULATIONS, ORDERS OR INSTRUCTIONS. — Whenever a bank or quasi-bank, or whenever any person or entity willfully violates this Act or other pertinent banking laws being enforced or implemented by the Bangko Sentral or any order, instruction, rule or regulation issued by the Monetary Board, the person or persons responsible for such violation shall unless otherwise provided in this Act be punished by a fine of not less than Fifty thousand pesos (P50,000) nor more than Two hundred thousand pesos (P200,000) or by imprisonment of not less than two (2) years nor more than ten (10) years, or both, at the discretion of the court. Whenever a bank or quasi-bank persists in carrying on its business in an unlawful or unsafe manner, the Board may, without prejudice to the penalties provided in the preceding paragraph of this section and the administrative sanctions provided in Section 37 of this Act, take action under Section 30 of this Act.

9

SECTION 37. ADMINISTRATIVE SANCTIONS ON BANKS AND QUASI-BANKS. — Without prejudice to the criminal sanctions against the culpable persons provided in Sections 34, 35, and 36 of this Act, the Monetary Board may, at its discretion, impose upon any bank or quasi-bank, their directors and/or officers, for any willful violation of its charter or by-laws, willful delay in the submission of reports or publications thereof as required by law, rules and regulations; any refusal to permit examination into the affairs of the institution; any willful making of a false or misleading statement to the Board or the appropriate supervising and examining department or its examiners; any willful failure or refusal to comply with, or violation of, any banking law or any order, instruction or regulation issued by the Monetary Board, or any order, instruction or ruling by the Governor; or any commission of irregularities, and/or conducting business in an unsafe or unsound manner as may be determined by the Monetary Board, the following administrative sanctions, whenever applicable:

(a.) fines in amounts as may be determined by the Monetary Board to be appropriate, but in no case to exceed (b.) (c.) (d.) (e.)

Thirty thousand pesos (P30,000) a day for each violation, taking into consideration the attendant circumstances, such as the nature and gravity of the violation or irregularity and the size of the bank or quasibank; suspension of rediscounting privileges or access to Bangko Sentral credit facilities; suspension of lending or foreign exchange operations or authority to accept new deposits or make new investments; suspension of interbank clearing privileges; and/or revocation of quasi-banking license.

Resignation or termination from office shall not exempt such director or officer from administrative or criminal sanctions. The Monetary Board may, whenever warranted by circumstances, preventively suspend any director or officer of a bank or quasi-bank pending an investigation: Provided, That should the case be not finally decided by the Bangko Sentral within a period of one hundred twenty (120) days after the date of suspension, said director or officer shall be reinstated in his position: Provided, further, That when the delay in the disposition of the case is due to the fault, negligence or petition of the director or officer, the period of delay shall not be counted in computing the period of suspension herein provided. The above administrative sanctions need not be applied in the order of their severity. MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)

ISSUE/S: UCPB: 1.) WON CA has jurisdiction to review decisions of the BSP MB? 2.) WON CA erred in holding that BSP MB “summarily dismissed” the complaint EGI: 3.) WON CA should have directed BSP MB to implement appropriate penalties instead of remanding the case for further proceedings HELD: 1.) YES BSP is a quasi-judicial body exercising quasi-judicial functions. Section 9(3) of Batas Pambansa Blg. 129, otherwise known as The Judiciary Reorganization Act of 1980, as amended, reads: SEC. 9. JURISDICTION. – The Court of Appeals shall exercise:

SY 2010-2011

(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. (Emphasis ours.) In accordance with the afore-quoted provision, Rule 43 of the 1997 Revised Rules of Civil Procedure, on Appeals from the Court of Tax Appeals and QuasiJudicial Agencies to the Court of Appeals, defines its scope as follows: SECTION 1. SCOPE. - This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appealsand from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions.

The cease and desist order shall be immediately effective upon service on the respondents.

Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. (Emphasis ours.)

The respondents shall be afforded an opportunity to defend their action in a hearing before the Monetary Board or any committee chaired by any Monetary Board member created for the purpose, upon request made by the respondents within five (5) days from their receipt of the order.

Even if BSP MB is not in the lists, it does not mean that CA is bereft of appellate jurisdiction over it.

xxxx

Whether or not there is an administrative proceeding, if the institution and/or the directors and/or officers concerned continue with or otherwise persist in the commission of the indicated practice or violation, the Monetary Board may issue an order requiring the institution and/or the directors and/or officers concerned to cease and desist from the indicated practice or violation, and may further order that immediate action be taken to correct the conditions resulting from such practice or violation.

If no such hearing is requested within said period, the order shall be final. If a hearing is conducted, all issues shall be determined on the basis of records, after which the Monetary Board may either reconsider or make final its order. The Governor is hereby authorized, at his discretion, to impose upon banking institutions, for any failure to comply with the requirements of law, Monetary Board regulations and policies, and/or instructions issued by the Monetary Board or by the Governor, fines not in excess of Ten thousand pesos (P10,000) a day for each violation, the imposition of which shall be final and executory until reversed, modified or lifted by the Monetary Board on appeal.

10

SECTION 55. PROHIBITED TRANSACTIONS. — 55.1. NO DIRECTOR, OFFICER, EMPLOYEE, OR AGENT OF ANY BANK SHALL — (a) Make false entries in any bank report or statement or participate in any fraudulent transaction, thereby affecting the financial interest of, or causing damage to, the bank or any person;

CA’s appellate jurisdiction in BP 129, SECTIOn 9 (3) & RULE 43, SECTION 1 generally refers to quasi-judicial agencies, instrumentalities, boards, or commissions. The use of the word "including" in the said provision, prior to the naming of several quasi-judicial agencies, necessarily conveys the very idea of nonexclusivity of the enumeration. The introductory phrase "[a]mong these agencies are" preceding the enumeration of specific quasi-judicial agencies only highlights the fact that the list is not meant to be exclusive or conclusive. MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)

Further, the overture stresses and acknowledges the existence of other quasijudicial agencies not included in the enumeration but should be deemed included. The principle of expressio unius est exclusio alterius does not apply where other circumstances indicate that the enumeration was not intended to be exclusive, or where the enumeration is by way of example only. A quasi-judicial agency or body is an organ of government other than a court and other than a legislature, which affects the rights of private parties through either adjudication or rule-making. A "quasi-judicial function" is a term which applies to the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature. As aptly observed by the Court of Appeals, the BSP Monetary Board is an independent central monetary authority and a body corporate with fiscal and administrative autonomy, mandated to provide policy directions in the areas of money, banking and credit. It has power to issue subpoena, to sue for contempt those refusing to obey the subpoena without justifiable reason, to administer oaths and compel presentation of books, records and others, needed in its examination, to impose fines and other sanctions and to issue cease and desist order.

SY 2010-2011

UCPB also cited: Salud v. Central Bank of the Philippines (1986)11 which SC held to be misplaced. The present case involves a decision of the BSP Monetary Board as regards an administrative complaint against a bank and its corporate officers for the alleged violation of Sections 36 and 37, Article IV of Republic Act No. 7653, in relation to Section 55.1(a) of Republic Act No. 8791, and for the commission of irregularity and unsafe or unsound banking practice. There is nothing in the aforesaid laws which state that the final judgments, orders, resolutions or awards of the BSP Monetary Board on administrative complaints against banks or quasi-banks shall be final and executory and beyond the subject of judicial review. Without being explicitly excepted or exempted, the final judgments, orders, resolutions or awards of the BSP Monetary Board are among those appealable to the Court of Appeals by way of Petition for Review, as provided in Section 9(3) of Batas Pambansa Blg. 129, as amended, and Section 1, Rule 43 of the 1997 Revised Rules of Civil Procedure. At any rate, under the new law, i.e., Section 30 of Republic Act No. 7653, otherwise known as The New Central Bank Act, which took effect on 3 July 1993, the order of the BSP Monetary Board, even regarding the liquidation of a bank, can be questioned via a Petition for Certiorari before a court when the same was issued in excess of jurisdiction or with such grave abuse of discretion as to amount to lack or excess of jurisdiction.

11

Although in Salud, this Court declared that the Intermediate Appellate Court (now Court of Appeals) has no appellate jurisdiction over resolutions or orders of the Monetary Board of the Central Bank of the Philippines (CBP, now BSP), because no law prescribes any mode of appeal therefrom, the factual settings of the said case are totally different from the one presently before us. Salud involved a resolution issued by the Monetary Board, pursuant to Section 29 of Republic Act No. 265, otherwise known as the old Central Bank Act, forbidding banking institutions to do business on account of a "condition of insolvency" or because "its continuance in business would involve probable loss to depositors or creditors;" or appointing a receiver to take charge of the assets and liabilities of the bank; or determining whether the banking institutions should be rehabilitated or liquidated, and if in the latter case, appointing a liquidator towards this end. The said Section 29 of the old Central Bank Act was explicit that the determination by the Monetary Board of whether a banking institution is insolvent, or should be rehabilitated or liquidated, is final and executory. However, said determination could be set aside by the trial court if there was convincing proof that the Monetary Board acted arbitrarily or in bad faith. Under the circumstances obtaining in Salud, it is apparent that our ruling therein is limited to cases of insolvency, and not to all cases cognizable by the Monetary Board. MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)

The court referred to therein can be construed to mean the Court of Appeals because it is in the said court where a Petition for Certiorari can be filed following the hierarchy of courts. Moreover, the appellate jurisdiction of the Court of Appeals over the final judgments, orders, resolutions or awards of the BSP Monetary Board in administrative cases involving directors and officers of banks, quasi-banks, and trust entities, is affirmed in BSP Circular No. 477, Series of 2005. The said BSP Circular expressly provides that the resolution rendered by the BSP Monetary Board in administrative cases may be appealed to the Court of Appeals within the period and the manner provided under Rule 43 of the 1997 Revised Rules of Civil Procedure. 2.) NO Given the gravity and seriousness of the charges of EGI against UCPB, et al., the sweeping statement of the BSP Monetary Board that it was inclined to dismiss the complaint of EGI based on the evaluation made by its Supervision and Examination Department I and Office of the General Counsel and Legal Services, is simply insufficient and unsatisfactory. Worse, the BSP Monetary Board merely presented the following conclusions without bothering to explain its bases for the same: (1) UCPB computed interest on loans based on BSP rules and regulations which prohibit banks from accruing interest on loans that have become non-performing (BSP Circular No. 202); (2) fair market value of assets to be foreclosed is different from the bid price submitted during foreclosure and there is no statutory obligation for the latter to be equivalent to the former; (3) regarding the alleged P145,163,000.00 fabricated loan, the documents showed that there were the EGI Board resolution to borrow, promissory note signed by Mr. Eulalio Ganzon, and Loan Agreement stating the proceeds shall be used to pay outstanding availments and interest servicing; and (4) there is no finding by Supervision and Examination Department I on the alleged double charging and/or padding of transaction costs. Further, in resolving the matter before it, the BSP Monetary Board never considered the UCPB Internal Memorandum dated 22 February 2001, which was the heart of the administrative complaint of EGI against UCPB, et al. The BSP Monetary Board did not even attempt to establish whether it was regular or sound practice for a bank to keep a record of its borrower’s loan

SY 2010-2011

obligations with two different sets of figures, one higher than the other; and to disclose to the borrower only the higher figures. The explanation of UCPB, et al., adopted by the BSP Monetary Board – that the figures in the "ACTUAL" column were lower than those in the "DISCLOSED TO EGI" column because the former was computed in accordance with BSP rules and regulations prohibiting the accrual of interest on loans that have become non-performing – gives rise to more questions than answers. Examples of some of these questions would be: 1.) whether the loan obligations of EGI have become non-performing; 2.) whether the differences between the figures in the "ACTUAL" and "DISCLOSED TO EGI" columns indeed corresponded to the interest that should be excluded from the figures in the first column per BSP rules and regulations; and 3.) whether the computations of the figures in both columns should have been freely disclosed and sufficiently explained to EGI in the name of transparency. The BSP Monetary Board similarly failed to clarify whether UCPB can foreclose the mortgaged properties of EGI in amounts that were less than the values of the said properties as determined and stipulated by EGI and UCPB in their amended MOA. The Court once more agrees in the ruling of the Court of Appeals that the MOA entered into by EGI and UCPB serves as a contract between them, and it is the law that should govern their relationship, which neither of the parties can simply abrogate, violate, or disregard. Unfortunately, the BSP Monetary Board never even referred to the MOA executed by the parties in its letter-decision dated 16 September 2003. Moreover, the BSP Monetary Board found that the P145,163,000.00 loan of EGI from UCPB was not fabricated based on several documents. However, there is absolute lack of explanation by the BSP Monetary Board as to why said documents deserved more weight vis-à-vis evidence of EGI of suspicious circumstances surrounding the said loan, such as UCPB granting EGI said loan even when the latter was already in default on its prior loan obligations, and without requiring additional security, detailed business plan, and financial projections from EGI. The disregard by BSP Monetary Board of all the foregoing facts and issues in its letter-decision dated 16 September 2003 leads this Court to declare that it summarily dismissed the administrative complaint of EGI against UCPB, et al. MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)

There can be no complete resolution of the administrative complaint of EGI without consideration of these facts and judgment on said issues. Although, as a general rule, findings of facts of an administrative agency, which has acquired expertise in the particular field of its endeavor, are accorded great weight on appeal, such rule cannot be applied with respect to the assailed findings of the BSP Monetary Board in this case. Rather, what applies is the recognized exception that if such findings are not supported by substantial evidence, the Court can make its own independent evaluation of the facts. The standard of substantial evidence required in administrative proceedings is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

SY 2010-2011

By remanding the case to the BSP MB, the CA only acted in accordance with RA 7653 & RA 8791, which tasked the BSP, through the MB, to determine whether a particular act or omission, which is not otherwise prohibited by any law, rule or regulation affecting banks, quasi-banks, or trust entities, may be deemed as conducting business in an unsafe or unsound manner. Also BSP is the proper body to impose the necessary administrative sanctions for the erring bank and its directors or officers. BSP, with its specialized knowledge and expertise on banking matters, is more up to task to receive evidence, hold hearings, and thereafter resolve the issues based on its findings of fact and law. CA held that BSP MB did not have sufficient basis for dismissing the administrative complaint, nor did it find enough evidence on record to already resolve the complaint – precisely why the case is remanded to BSP MB for further proceedings.

While rules of evidence prevailing in courts of law and equity shall not be controlling, the obvious purpose being to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order, this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without basis in evidence having rational probative force.

CA never meant to give assurance to EGI of favorable judgment, only that BSP NV shall accord all parties concerned to equal opportunity for presentation and consideration of their allegations, arguments and evidence.

It cannot be convincingly said herein that the factual findings of the BSP Monetary Board in its letter-decision dated 16 September 2003 was supported by substantial evidence since 1.) most of the findings were not supported by references to specific evidence; and 2.) the findings were made without consideration of the primary evidence presented by EGI (i.e., the MOA and its amendments and the UCPB Internal Memorandum dated 22 February 2001).

DISPOSITION: Petitions DENIED. CA AFFIRMED.

It is the paramount duty of the courts and quasi-judicial bodies to render justice by following the basic rules and principles of due process and fair play.

What the Court of Appeals positively pronounced was that the BSP Monetary Board failed to give the necessary consideration to the administrative complaint of EGI, summarily dismissing the same in its 16 September 2003 letter-decision. 3.) NO CA did not yet make conclusive findings in its decision, it only adjudged that BSP MB summarily dismissed the administrative complaint. MARY ANN JOY R. LEE

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SY 2010-2011

DE LARA V. CLORIVEL G.R. No. L-21653; May 13, 1965; 14 SCRA 269 TOPIC: PART V. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS assigned for , 2011 B. EXHAUSTION OF ADMINISTRATIVE REMEDIES Page 10 of syllabus NOTE: may digest sa p.64 ng B2005 reviewer

MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

ACTING COLLECTOR V. CTA 102 PHIL 244; 1983 TOPIC: PART V. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS assigned for , 2011 D. STANDING TO CHALLENGE Page 11 of syllabus NOTE: may digest sa p.70 ng B2005 reviewer

MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

JOYA V. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT 225 SCRA 568; 1993 TOPIC: PART V. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS assigned for , 2011 D. STANDING TO CHALLENGE Page 11 of syllabus NOTE: may digest sa p.73 ng B2005 reviewer

MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

ASSOCIATION OF DATA PROCESSING SERVICE ORGANIZATION V. CAMP 397 U.S. 150; 90 S Ct. 827, 25 L. Ed. 2d 184; 1970; TOPIC: PART V. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS assigned for , 2011 D. STANDING TO CHALLENGE Page 11 of syllabus NOTE: may digest sa p.76 ng B2005 reviewer

MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

CRUZ V. GANGAN 395 SCRA 711; G.R. No. 143403; January 22, 2003;

http://www.chanrobles.com/scdecisions/jurisprudence2003/jan2 003/143403.php TOPIC: PART VI. MODES OF JUDICIAL REVIEW assigned for , 2011 B. CERTIORARI Page 12 of syllabus

MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

PAGAYANAN R. HADJI-SIRAD V. CSC GR No. 182267; Aug. 28, 2009; J. Chico-Nazario TOPIC: PART VI. MODES OF JUDICIAL REVIEW assigned for , 2011 B. CERTIORARI Page 12 of syllabus NATURE: Petition for Review RULE 45 of the CA decision. FACTS: On Feb. 4, 2002, Hadji-Sarad, an employee of the Commission on Audit (COA) in the Autonomous Region in Muslim Mindanao (ARMM) was formally charged by CSC RO No. XII with: 1.) Dishonesty 2.) Grave Misconduct 3.) Conduct Prejudicial to the Best Interest of the Service. Formerly Pagayanan Romero – another person took the Civil Service Examinations on her behalf. CSC RO found Pagayanan Romero Hadji-Sarad guilty, and DISMISSED her from service. (affirmed by CSC) CA dismissed Hadji-Sarad’s Petition for Certiorari under RULE 65 for being the wrong mode of appeal, should be RULE 43 daw. ISSUE/S: 1.) What is the proper remedy? 2.) WON technicality brushed aside, the judgment can be reversed? HELD: 1.) CA was correct: Petition for Review under RULE 43 Section 50, Rule III of the Uniform Rules on Administrative Cases in the CSC12 plainly states that a party may elevate a decision of the Commission before the Court of Appeals by way of a petition for review under Rule 43 of the 1997 Revised Rules of Court. 12

SECTION 50. PETITION FOR REVIEW WITH THE COURT OF APPEALS. – A party may elevate a decision of the Commission before the Court of Appeals by way of a petition for review under Rule 43 of the 1997 Revised Rules of Court.

SY 2010-2011

Sections 1 and 5, Rule 43 of the 1997 Revised Rules of Civil Procedure, as amended, provide that final orders or resolutions of the CSC are appealable to the Court of Appeals through a petition for review, to wit: SECTION 1. SCOPE. - This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of quasi judicial functions. Among these agencies are the: 1.) Civil Service Commission, 2.) Central Board of Assessment Appeals, 3.) Securities and Exchange Commission, 4.) Office of the President, 5.) Land Registration Authority, 6.) Social Security Commission, 7.) Civil Aeronautics Board, 8.) Bureau of Patents, Trademarks and Technology Transfer, 9.) National Electrification Administration, 10.) Energy Regulatory Board, 11.) National Telecommunications Commission, 12.) Department of Agrarian Reform under Republic Act. No. 6657, 13.) Government Service Insurance System, 14.) Employees Compensation Commission, 15.) Agricultural Inventions Board, 16.) Insurance Commission, 17.) Philippine Atomic Energy Commission, 18.) Board of Investments, 19.) Construction Industry Arbitration Commission, and 20.) voluntary arbitrators authorized by law.

SEC. 5. HOW APPEAL TAKEN. – Appeal shall be taken by filing a verified petition for review in seven (7) legible copies with the Court of Appeals, with proof of service of a copy thereof on the adverse party and on the court or agency a quo. The original copy of the petition intended for the Court of Appeals shall be indicated as such by the petitioner. Hadji-Sarad had 15 days after receiving the denial to file a petition for review.



A special civil action for certiorari is not a substitute for a lost or lapsed remedy of appeal. MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)



We have often enough reminded members of the bench and bar that a special civil action for certiorari under Rule 65 of the 1997 Revised Rules of Civil Procedure lies only when there is no appeal or plain, speedy and adequate remedy in the ordinary course of law.



Certiorari is not allowed when a party to a case fails to appeal a judgment or final order despite the availability of that remedy.



The remedies of appeal and certiorari are mutually exclusive and not alternative or successive.



In this case, petitioner utterly failed to provide any justification for her resort to a special civil action for certiorari, when the remedy of appeal by petition for review was clearly available.

In addition to being the wrong mode of appeal, the CA also noted petitioner’s failure to comply with the requirements for petitions under Rule 65 of the 1997 Revised Rules of Civil Procedure, particularly, the second and third paragraphs of Section 3, Rule 46, of the same rules, which read: SEC. 3. CONTENTS AND FILING OF PETITION; EFFECT OF NONCOMPLIANCE WITH REQUIREMENTS. – xxxx In actions filed under Rule 65, the petition shall further indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received. It shall be filed in seven (7) clearly legible copies together with proof of service thereof on the respondent with the original copy intended for the court indicated as such by the petitioner, and shall be accompanied by a clearly legible duplicate original or certified true copy of the judgment, order, resolution, or ruling subject thereof, such material portions of the record as referred to therein, and other documents relevant or pertinent thereto. The certification shall be accomplished by the proper clerk of court or by his duly authorized representative, or by the proper officer of the court, tribunal, agency or office involved or by his duly authorized representative.

SY 2010-2011

Petitioner failed to indicate in her Petition for Certiorari the material date when she filed her Motion for Reconsideration, and to append to the same Petition a certified true copy or duplicate original of the said Motion for Reconsideration. Rules of procedure are tools designed to promote efficiency and orderliness as well as to facilitate attainment of justice, such that strict adherence thereto is required. However, technical rules of procedure are not designed to frustrate the ends of justice. The Court is fully aware that procedural rules are not to be belittled or simply disregarded, for these prescribed procedures insure an orderly and speedy administration of justice. However, it is equally true that litigation is not merely a game of technicalities. Law and jurisprudence grant to courts the prerogative to relax compliance with procedural rules of even the most mandatory character, mindful of the duty to reconcile both the need to put an end to litigation speedily and the parties’ right to an opportunity to be heard. This is not to say that adherence to the Rules could be dispensed with. However, exigencies and situations might occasionally demand flexibility in their application. In not a few instances, the Court relaxed the rigid application of the rules of procedure to afford the parties the opportunity to fully ventilate their cases on the merit. This is in line with the time-honored principle that cases should be decided only after giving all parties the chance to argue their causes and defenses. Technicality and procedural imperfection should, thus, not serve as basis of decisions.

The other requisite number of copies of the petition shall be accompanied by clearly legible plain copies of all documents attached to the original.

In that way, the ends of justice would be better served.

The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition. (Emphasis supplied.)

2.) SC found her GUILTY.

MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

In Sanchez v. Court of Appeals (2003), the Court restated the reasons that may provide justification for a court to suspend a strict adherence to procedural rules, such as: a.) matters of life, liberty, honor or property; b.) the existence of special or compelling circumstances; c.) the merits of the case; d.) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules; e.) a lack of any showing that the review sought is merely frivolous and dilatory; and f.) the other party will not be unjustly prejudiced thereby.

Well-entrenched is the rule that substantial proof, and not clear and convincing evidence or proof beyond reasonable doubt, is sufficient basis for the imposition of any disciplinary action upon an employee.

In administrative proceedings, such as in the case at bar, procedural due process simply means the opportunity to explain one’s side or the opportunity to seek a reconsideration of the action or ruling complained of. "To be heard" does not mean only verbal arguments in court; one may be heard also thru pleadings.

Even only a cursory examination of petitioner’s pictures and signatures in her PDS dated 10 November 1994, and in the AF and PSP for the CS Professional Examination of 29 November 1992, on one hand; and petitioner’s purported pictures and signatures in the AF and PSP for the CSC Professional Examination of 17 October 1993, on the other, reveals their marked differences from one another.

Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process.

It can be observed by the naked eye that the pictures and signatures bear little resemblance/similitude, or none at all.

In administrative proceedings, procedural due process has been recognized to include the following: 1.) the right to actual or constructive notice of the institution of proceedings, which may affect a respondent’s legal rights; 2.) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in one’s favor, and to defend one’s rights; 3.) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and 4.) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected.

The pictures could not have been those of the same individual, nor could the signatures have been made by the same person.

The Decision dated 27 February 2006 of CSCRO No. XII, affirmed by the CSC, which dismissed petitioner from service for Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service, is supported by competent and credible evidence. The law requires that the quantum of proof necessary for a finding of guilt in administrative cases is substantial evidence or such relevant evidence as a reasonable mind may accept as adequate to support a conclusion.

The standard of substantial evidence is satisfied where the employer has reasonable ground to believe that the employee is responsible for the misconduct, and his participation therein renders him unworthy of trust and confidence demanded by his position. There is such substantial evidence herein to prove petitioner guilty of the administrative offenses for which she was charged.

As a general rule, the findings of fact of the CSC and the Court of Appeals are accorded great weight. In a plethora of cases, we have held that lower courts are in a better position to determine the truth of the matter in litigation, since the pieces of evidence are presented before them, and they are able to look into the credibility and the demeanor of the witnesses on the witness stand. Furthermore, quasi-judicial bodies like the CSC are better-equipped in handling cases involving the employment status of employees as those in the Civil Service since it is within the field of their expertise. Factual findings of administrative agencies are generally held to be binding and final so long as they are supported by substantial evidence in the record of the case. The Supreme Court is not a trier of facts. Its jurisdiction is limited to reviewing and revising errors of law imputed to the lower court, its findings of fact being conclusive and not reviewable by this Court. MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

DISPOSITION: Petition DENIED. CA AFFIRMED. We cannot even consider the possibility that the CSC officials who supervised the examinations committed a mistake in matching the pictures and signatures vis-à-vis the examinees, as the said CSC officials enjoy the presumption of regularity in the performance of their official duty. Besides, such a mix-up is highly unlikely due to the strict procedures followed during civil service examinations, described in detail in Cruz v. Civil Service Commission (2001), to wit: “It should be stressed that as a matter of procedure, the room examiners assigned to supervise the conduct of a Civil Service examination closely examine the pictures submitted and affixed on the Picture Seat Plan (CSC Resolution No. 95-3694, Obedencio, Jaime A.). The examiners carefully compare the appearance of each of the examinees with the person in the picture submitted and affixed on the PSP. In cases where the examinee does not look like the person in the picture submitted and attached on the PSP, the examiner will not allow the said person to take the examination (CSC Resolution No. 95-5195, Taguinay, Ma. Theresa).” The only logical scenario is that another person, who matched the picture in the PSP, actually signed the AF and took the CS Professional Examination on 17 October 1993, in petitioner’s name. Further, testimonies of witnesses Casanguan and Yasa do not stand conclusive of the fact that it was indeed respondent who took the said examination. On the witness stand, it was made clear that he only saw the name of Hadji Sirad in the list of examinees posted outside Room 003. Further, that the only time he saw Hadji Sirad was prior to the start of the examination. Clearly, he did not see Hadji Sirad actually take the exam nor hand in her examination papers after she finished the examination. Finally, it is stressed that the fact that Yasa is a long-time employee of the Commission does not render his statements relative to the conduct of the 1993 CS Professional examination in Iligan City as gospel truth.

MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

NATIONAL DENTAL SUPPLY CO. V. MEER 90 PHIL 265; 1951 TOPIC: PART VI. MODES OF JUDICIAL REVIEW assigned for , 2011 E. DECLARATORY RELIEF Page 13 of syllabus NOTE: may digest sa p.90 ng B2005 reviewer

MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

MEJOFF V. DIRECTOR OF PRISONS 90 PHIL 70; 1951 TOPIC: PART VI. MODES OF JUDICIAL REVIEW assigned for , 2011 F. HABEAS CORPUS Page 13 of syllabus NOTE: may digest sa p. 91 ng B2005 reviewer

MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

HONDA V. SAN DIEGO GR No. 22756; March 18, 1966; 16 SCRA 406 TOPIC: PART VI. MODES OF JUDICIAL REVIEW assigned for , 2011 G. INJUNCTION AS PROVISIONAL REMEDY Page 13 of syllabus NOTE: may digest sa p. 93 ng B2005 reviewer

MARY ANN JOY R. LEE

38

ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

PHILIPPINE AMERICAN GENERAL INSURANCE COMPANY, INC. V. CA 222 SCRA 155; 1993

TOPIC: PART VIII. ENFORCEMENT OF AGENCY ACTION assigned for , 2011 A. RES JUDICATA; FINALITY OF JUDGMENT Page 15 of syllabus

MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

•

Meralco contends that it is authorized by the BOE to retain its savings. BOE supported the contention of Meralco. PCFI filed and was denied motion for reconsideration hence the instant petition for certiorari which was also denied by the SC

•

In 1991, RTC declared the decision of the SC null and void based on the dissenting opinion of the Chief Justice

http://www.chanrobles.com/cralawgrno101783jan232002.html

•

Meralco moved for motion for reconsideration but was denied by the same RTC hence the instant petition

TOPIC: PART VIII. ENFORCEMENT OF AGENCY ACTION assigned for , 2011

ISSUES: 1. WON Meralco is duly authorized to retain the savings resulting from the reduction of the franchise tax under P. D. No. 551 2. WON RTC can annul decision already rendered by the SC 3. WON private respondents can no longer avail of the remedy of an action for declaratory relief in view of the rule that such action should be filed before a violation of the statute occurred

MANILA ELECTRIC CO., V. PHILIPPINE CONSUMERS FOUNDATION, ET. AL. GR No. 101783; Jan. 23, 2002; J. Salvador-Gutierrez

http://www.abernales.com/gr_101783.htm

A. RES JUDICATA; FINALITY OF JUDGMENT Page 15 of syllabus NATURE: FACTS: • President Marcos issued PD 551 providing for the reduction from 5% to 2% of the franchise tax paid by electric companies •

Philippine Consumers Foundation (PCFI) filed a petition to the Board of Energy (BOE) against Meralco.

•

PCFI sought for the immediate refund by Meralco to its customers of all the savings it realized under P. D. No. 551, through the reduction of its franchise tax from 5% to 2%, with interest at the legal rate; and for the payment of damages and a fine in the amount of P 50, 000.00 for violating P. D. 551. It moored its petition on Section 4 of P. D. No. 551

o

HELD: The first contention has already been settled and cannot anymore be sanctioned under the principle of res judicata. For a claim of res judicata to prosper, the following requisites must concur: 1) there must be a final judgment or order; 2) the court rendering it must have jurisdiction over the subject matter and the parties; 3) it must be a judgment or order on the merits; and 4) there must be, between the two cases identity of parties, subject matter and causes of action. All the above requisites are extant in the records and thus, beyond dispute. A lower court cannot reverse or set aside decisions or orders of a superior court, especially of this Court, for to do so will negate the principle of hierarchy of courts and nullify the essence of review.

“SEC. 4. All the savings realized by electric franchise holders from the reduction of the franchise tax under Section 1 and tariff reductions and tax credits under Sections 2 and 3, shall be passed on to the ultimate consumer.

A final judgment, albeit erroneous, is binding on the whole world.

The Secretary of Finance shall promulgate rules and regulations and devise a reporting system to carry out the provisions of this Decree.”

“A becoming modesty of inferior courts demands conscious realization of the position that they occupy in the interrelation and operation of the integrated judicial system of the nation.”

Thus, it is the duty of the lower courts to obey the Decisions of this Court and render obeisance to its status as the apex of the hierarchy of courts.

MARY ANN JOY R. LEE

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PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

“There is only one Supreme Court from whose decisions all other courts should take their bearings,” as eloquently declared by Justice J. B. L. Reyes. Respondent RTC, and for this matter, all lower courts, ought to be reminded that a final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. Although judicial determinations are not infallible, judicial error should be corrected through appeals, not through repeated suits on the same claim DISPOSITION: NOTES:

MARY ANN JOY R. LEE

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ADMIN LAW digests

PROF JARDELEZA (syllabus: Dean Carlota)

SY 2010-2011

VDA. DE CORPUZ V. THE COMMANDING GENERAL, PHIL. ARMY G.R. No. L-44077; Sept. 30, 1989;

http://www.ustcivillaw.com/Jurisprudence/1978/gr_44077_1978. php http://www.lawphil.net/judjuris/juri1978/sep1978/gr_44077_197 8.html http://www.chanrobles.com/scdecisions/jurisprudence1978/sep1 978/gr_44077_1978.php TOPIC: PART VIII. ENFORCEMENT OF AGENCY ACTION assigned for , 2011 B. WRIT OF EXECUTION; MANDAMUS Page 15 of syllabus

MARY ANN JOY R. LEE

42