Tuesday, July 31, 2012

Whether or not the current practice of the JBC to
perform its functions with eight (8) members, two (2) of whom are members of Congress, runs counter to the letter and spirit of the 1987 Constitution.


Central to the resolution of the foregoing petition is an understanding
of the composition of the JBC as stated in the first paragraph of Section 8,
Article VIII of the Constitution. It reads:
Section 8. (1) A Judicial and Bar Council is hereby created
under the supervision of the Supreme Court composed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative
of the Integrated Bar, a professor of law, a retired Member of the
Supreme Court, and a representative of the private sector.
From a simple reading of the above-quoted provision, it can readily be
discerned that the provision is clear and unambiguous. The first paragraph
calls for the creation of a JBC and places the same under the supervision of
the Court. Then it goes to its composition where the regular members are
enumerated: a representative of the Integrated Bar, a professor of law, a
retired member of the Court and a representative from the private sector. On
the second part lies the crux of the present controversy. It enumerates the ex
officio or special members of the JBC composed of the Chief Justice, who
shall be its Chairman, the Secretary of Justice and “a representative of
Congress.”
As petitioner correctly posits, the use of the singular letter “a”
preceding “representative of Congress” is unequivocal and leaves no room
for any other construction. It is indicative of what the members of the
Constitutional Commission had in mind, that is, Congress may designate
only one (1) representative to the JBC. Had it been the intention that more
than one (1) representative from the legislature would sit in the JBC, the
Framers could have, in no uncertain terms, so provided.
One of the primary and basic rules in statutory construction is that
where the words of a statute are clear, plain, and free from ambiguity, it must
be given its literal meaning and applied without attempted interpretation.32 It
is a well-settled principle of constitutional construction that the language
employed in the Constitution must be given their ordinary meaning except
where technical terms are employed. As much as possible, the words of the
Constitution should be understood in the sense they have in common use.
What it says according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they say.33 Verba legis
non est recedendum – from the words of a statute there should be no
departure.34
The raison d’ être for the rule is essentially two-fold: First, because it
is assumed that the words in which constitutional provisions are couched
express the objective sought to be attained;35 and second, because the
Constitution is not primarily a lawyer’s document but essentially that of the
people, in whose consciousness it should ever be present as an important
condition for the rule of law to prevail.
Moreover, under the maxim noscitur a sociis, where a particular word
or phrase is ambiguous in itself or is equally susceptible of various
meanings, its correct construction may be made clear and specific by
considering the company of words in which it is founded or with which it is
associated.37 This is because a word or phrase in a statute is always used in
association with other words or phrases, and its meaning may, thus, be
modified or restricted by the latter.38 The particular words, clauses and
phrases should not be studied as detached and isolated expressions, but the
whole and every part of the statute must be considered in fixing the meaning
of any of its parts and in order to produce a harmonious whole. A statute
must be so construed as to harmonize and give effect to all its provisions
whenever possible.39 In short, every meaning to be given to each word or
phrase must be ascertained from the context of the body of the statute since a
word or phrase in a statute is always used in association with other words or
phrases and its meaning may be modified or restricted by the latter.
Applying the foregoing principle to this case, it becomes apparent that
the word “Congress” used in Article VIII, Section 8(1) of the Constitution is
used in its generic sense. No particular allusion whatsoever is made on
whether the Senate or the House of Representatives is being referred to, but
that, in either case, only a singular representative may be allowed to sit in
the JBC. The foregoing declaration is but sensible, since, as pointed out by
an esteemed former member of the Court and consultant of the JBC in his
memorandum,40 “from the enumeration of the membership of the JBC, it is
patent that each category of members pertained to a single individual
only.”
Indeed, the spirit and reason of the statute may be passed upon where
a literal meaning would lead to absurdity, contradiction, injustice, or defeat
the clear purpose of the lawmakers.42 Not any of these instances, however, is
present in the case at bench. Considering that the language of the subject
constitutional provision is plain and unambiguous, there is no need to resort
extrinsic aids such as records of the Constitutional Commission.
Nevertheless, even if the Court should proceed to look into the minds
of the members of the Constitutional Commission, it is undeniable from the
records thereof that it was intended that the JBC be composed of seven (7)
members only. Thus:
MR. RODRIGO: Let me go to another point then.
On page 2, Section 5, there is a novel provision about the
appointments of members of the Supreme Court and judges of the
lower courts. At present it is the President who appoints them. If there
is a Commission on Appointments, then it is the President with the
confirmation of the Commission on Appointment. In this proposal, we
would like to establish a new office, a sort of a board composed of seven
members called the Judicial and Bar Council. And while the President
will still appoint the member of the judiciary, he will be limited to the
recommendees of this Council.
xxx xxx xxx
MR. RODRIGO. Of the seven members of the Judicial and Bar
Council, the President appoints four of them who are regular
members.
xxx xxx xxx
MR. CONCEPCION. The only purpose of the Committee is to
eliminate partisan politics.43
xxx xxx xxx
MR. RODRIGO. If my amendment is approved, then the
provision will be exactly the same as the provision in the 1935
Constitution, Article VIII, Section 5.
If we do not remove the proposed amendment on the creation
of the Judicial and Bar Council, this will be a diminution of the
appointing power of the highest magistrate of the land, of the
President of the Philippines elected by all the Filipino people. The
appointing power will be limited by a group of seven people who are not
elected by the people but only appointed.
Mr. Presiding Officer, if this Council is created, there will be no
uniformity in our constitutional provisions on appointments. The
members of the Judiciary will be segregated from the rest of the
government. Even a municipal judge cannot be appointed by the
President except upon recommendation or nomination of the three
names by this Committee of seven people, commissioners of the
Commission on Elections, the COA and the Commission on Civil
Service…even ambassadors, generals of the Army will not come under
this restriction. Why are we going to segregate the Judiciary from the
rest of our government in the appointment of high-ranking officials?
Another reason is that this Council will be ineffective. It will just
besmirch the honor of our President without being effective at all
because this Council will be under the influence of the President. Four
out of seven are appointees of the President and they can be
reappointed when their term ends. Therefore, they would be kowtow
the President. A fifth member is the Minister of Justice, an alter ego of
the President. Another member represents the Legislature. In all
probability, the controlling part in the legislature belongs to the
President and, therefore, this representative form the National
Assembly is also under the influence of the President. And may I say,
Mr. Presiding Officer, that event the Chief Justice of the Supreme
Court is an appointee of the President. So it is futile he will be
influence anyway by the President.44 [Emphases supplied]
At this juncture, it is worthy to note that the seven-member
composition of the JBC serves a practical purpose, that is, to provide a
solution should there be a stalemate in voting. This underlying reason leads
the Court to conclude that a single vote may not be divided into half (1/2),
between two representatives of Congress, or among any of the sitting
members of the JBC for that matter. This unsanctioned practice can possibly
cause disorder and eventually muddle the JBC’s voting process, especially in
the event a tie is reached. The aforesaid purpose would then be rendered
illusory, defeating the precise mechanism which the Constitution itself
created. While it would be unreasonable to expect that the Framers provide
for every possible scenario, it is sensible to presume that they knew that an
odd composition is the best means to break a voting deadlock.
The respondents insist that owing to the bicameral nature of Congress,
the word “Congress” in Section 8(1), Article VIII of the Constitution should
be read as including both the Senate and the House of Representatives. They
theorize that it was so worded because at the time the said provision was
being drafted, the Framers initially intended a unicameral form of Congress.
Then, when the Constitutional Commission eventually adopted a bicameral
form of Congress, the Framers, through oversight, failed to amend Article
VIII, Section 8 of the Constitution.45 On this score, the Court cites the
insightful analysis of another member of the Court and JBC consultant,
retired Justice Consuelo Ynares-Santiago.46 Thus:
A perusal of the records of the Constitutional Commission
reveals that the composition of the JBC reflects the Commission’s
desire “to have in the Council a representation for the major
elements of the community.” xxx The ex-officio members of the
Council consist of representatives from the three main branches of
government while the regular members are composed of various
stakeholders in the judiciary. The unmistakeable tenor of Article
VIII, Section 8(1) was to treat each ex-officio member as representing
one co-equal branch of government. xxx Thus, the JBC was designed
to have seven voting members with the three ex-officio members
having equal say in the choice of judicial nominees.
xxx xx
No parallelism can be drawn between the representative of
Congress in the JBC and the exercise by Congress of its legislative
powers under Article VI and constituent powers under Article XVII of
the Constitution. Congress, in relation to the executive and judicial
branches of government, is constitutionally treated as another coequal
branch of in the matter of its representative in the JBC. On
the other hand, the exercise of legislative and constituent powers
requires the Senate and House of Representatives to coordinate and
act as distinct bodies in furtherance of Congress’ role under our
constitutional scheme. While the latter justifies and, in fact,
necessitates the separateness of the two houses of Congress as they
relate inter se, no such dichotomy need be made when Congress
interacts with the other two co-equal branches of government.
It is more in keeping with the co-equal nature of the three
governmental branches to assign the same weight to considerations
that any of its representatives may have regarding aspiring nominees
to the judiciary. The representatives of the Senate and the House of
Representatives act as such for one branch and should not have any
more quantitative influence as the other branches in the exercise of
prerogatives evenly bestowed upon the three. Sound reason and
principle of equality among the three branches support this
conclusion. [Emphases and underscoring supplied]
More than the reasoning provided in the above discussed rules of
constitutional construction, the Court finds the above thesis as the paramount
justification of the Court’s conclusion that “Congress,” in the context of JBC
representation, should be considered as one body. It is evident that the
definition of “Congress” as a bicameral body refers to its primary function in
government - to legislate.47 In the passage of laws, the Constitution is
explicit in the distinction of the role of each house in the process. The same
holds true in Congress’ non-legislative powers such as, inter alia, the power
of appropriation,48 the declaration of an existence of a state of war,49
canvassing of electoral returns for the President and Vice-President,50 and
47 1987 Constitution, Article 6 Section 27(1) - Every bill passed by the Congress shall, before it becomes a
law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and
return the same with his objections to the House where it originated, which shall enter the objections at
large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members
of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House
by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House,
it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and
the names of the Members voting for or against shall be entered in its Journal. The President shall
communicate his veto of any bill to the House where it originated within thirty days after the date of receipt
thereof; otherwise, it shall become a law as if he had signed it.
48 1987 Constitution, Article 6 Section 24 - All appropriation, revenue or tariff bills, bills authorizing
increase of public debt, bills of local application, and private bills shall originate exclusively in the House
of Representatives, but the Senate may propose or concur with amendments.
49 1987 Constitution, Article 6 Section 23 (1) - The Congress, by a vote of two-thirds of both Houses in
joint session assembled, voting separately, shall have the sole power to declare the existence of a state of
war.
50 1987 Constitution, Article 7 Section 4 - The returns of every election for President and Vice-President,
duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress,
directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the
Senate shall, not later than thirty days after the day of the election, open all certificates in the presence of
the Senate and the House of Representatives in joint public session, and the Congress, upon determination
of the authenticity and due execution thereof in the manner provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed elected, but in case two or more shall
have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority
of all the Members of both Houses of the Congress, voting separately.
IN the exercise of these powers, the Constitution employs
precise language in laying down the roles which a particular house plays,
regardless of whether the two houses consummate an official act by voting
jointly or separately. An inter-play between the two houses is necessary in
the realization of these powers causing a vivid dichotomy that the Court
cannot simply discount. Verily, each house is constitutionally granted with
powers and functions peculiar to its nature and with keen consideration to 1)
its relationship with the other chamber; and 2) in consonance with the
principle of checks and balances, to the other branches of government.
This, however, cannot be said in the case of JBC representation
because no liaison between the two houses exists in the workings of the
JBC. No mechanism is required between the Senate and the House of
Representatives in the screening and nomination of judicial officers. Hence,
the term “Congress” must be taken to mean the entire legislative department.
A fortiori, a pretext of oversight cannot prevail over the more pragmatic
scheme which the Constitution laid with firmness, that is, that the JBC has a
seat for a single representative of Congress, as one of the co-equal branches
of government.
Doubtless, the Framers of our Constitution intended to create a JBC as
an innovative solution in response to the public clamor in favor of
eliminating politics in the appointment of members of the Judiciary.52 To
ensure judicial independence, they adopted a holistic approach and hoped
that, in creating a JBC, the private sector and the three branches of
government would have an active role and equal voice in the selection of the
members of the Judiciary.Therefore, to allow the Legislature to have more quantitative influence
in the JBC by having more than one voice speak, whether with one full vote
or one-half (1/2) a vote each, would, as one former congressman and
member of the JBC put it, “negate the principle of equality among the three
branches of government which is enshrined in the Constitution.”53
To quote one former Secretary of Justice:
The present imbalance in voting power between the Legislative
and the other sectors represented in the JBC must be corrected
especially when considered vis-à-vis the avowed purpose for its
creation, i.e., to insulate the appointments in the Judiciary against
political influence. By allowing both houses of Congress to have a
representative in the JBC and by giving each representative one (1) vote
in the Council, Congress, as compared to the other members of the JBC,
is accorded greater and unwarranted influence in the appointment of judges.
It is clear, therefore, that the Constitution mandates that the JBC be
composed of seven (7) members only. Thus, any inclusion of another
member, whether with one whole vote or half (1/2) of it, goes against that
mandate. Section 8(1), Article VIII of the Constitution, providing Congress
with an equal voice with other members of the JBC in recommending
appointees to the Judiciary is explicit. Any circumvention of the
constitutional mandate should not be countenanced for the Constitution is
the supreme law of the land. The Constitution is the basic and paramount
law to which all other laws must conform and to which all persons,
including the highest officials of the land, must defer. Constitutional
doctrines must remain steadfast no matter what may be the tides of time. It
cannot be simply made to sway and accommodate the call of situations and
much more tailor itself to the whims and caprices of the government and the
people who run it.55 Hence, any act of the government or of a public official
or employee which is contrary to the Constitution is illegal, null and void.As to the effect of the Court’s finding that the current composition of
the JBC is unconstitutional, it bears mentioning that as a general rule, an
unconstitutional act is not a law; it confers no rights; it imposes no duties; it
affords no protection; it creates no office; it is inoperative as if it has not
been passed at all.56 This rule, however, is not absolute. In the interest of
fair play under the doctrine of operative facts, actions previous to the
declaration of unconstitutionality are legally recognized. They are not
nullified. In Planters Products, Inc. v. Fertiphil Corporation,57 the Court
explained:
The doctrine of operative fact, as an exception to the general
rule, only applies as a matter of equity and fair play. It nullifies the
effects of an unconstitutional law by recognizing that the existence
of a statute prior to a determination of unconstitutionality is an
operative fact and may have consequences which cannot always be
ignored. The past cannot always be erased by a new judicial
declaration.
The doctrine is applicable when a declaration of
unconstitutionality will impose an undue burden on those who have
relied on the invalid law. Thus, it was applied to a criminal case
when a declaration of unconstitutionality would put the accused in
double jeopardy or would put in limbo the acts done by a
municipality in reliance upon a law creating it.
Considering the circumstances, the Court finds the exception
applicable in this case and holds that notwithstanding its finding of
unconstitutionality in the current composition of the JBC, all its prior official
actions are nonetheless valid.
At this point, the Court takes the initiative to clarify that it is not in a
position to determine as to who should remain as the sole representative of
Congress in the JBC. This is a matter beyond the province of the Court and
is best left to the determination of Congress.
finally, while the Court finds wisdom in respondents' contention that
both the Senate and the House of Representatives should be equally
represented in the JBC, the Court is not in a position to stamp its imprimatur
on such a construction at the risk of expanding the meaning of the
Constitution as currently worded. Needless to state, the remedy lies in the
amendment of this constitutional provision. The courts merely give effect to
the lawgiver's intent. The solemn power and duty of the Court to interpret
and apply the law does not include the power to correct, by reading into the
law what is not written therein.
WHEREFORE, the petition is GRANTED. The current numerical
composition of the Judicial and Bar Council IS declared
UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined
to reconstitute itself so that only one ( 1) member of Congress will sit as a
representative in its proceedings, in accordance with Section 8( 1 ), Article
VI I I of the 1987 Constitution.
Impeachment, described as “the most formidable weapon in the
arsenal of democracy,”14 was foreseen as creating divisions, partialities and
enmities, or highlighting pre-existing factions with the greatest danger that
“the decision will be regulated more by the comparative strength of parties,
than by the real demonstrations of innocence or guilt.”15 Given their
concededly political character, the precise role of the judiciary in
impeachment cases is a matter of utmost importance to ensure the effectivefunctioning of the separate branches while preserving the structure of checks
and balance in our government. Moreover, in this jurisdiction, the acts of
any branch or instrumentality of the government, including those
traditionally entrusted to the political departments, are proper subjects of
judicial review if tainted with grave abuse or arbitrariness.
Impeachment refers to the power of Congress to remove a public
official for serious crimes or misconduct as provided in the Constitution. A
mechanism designed to check abuse of power, impeachment has its roots in
Athens and was adopted in the United States (US) through the influence of
English common law on the Framers of the US Constitution.
Our own Constitution’s provisions on impeachment were adopted
from the US Constitution. Petitioner was impeached through the mode
provided under Art. XI, par. 4, Sec. 3, in a manner that he claims was
accomplished with undue haste and under a complaint which is defective for
lack of probable cause. Petitioner likewise assails the Senate in proceeding
with the trial under the said complaint, and in the alleged partiality exhibited
by some Senator-Judges who were apparently aiding the prosecution during
the hearings.

On the other hand, respondents contend that the issues raised in the
Supplemental Petition regarding the behavior of certain Senator-Judges in
the course of the impeachment trial are issues that do not concern, or allege
any violation of, the three express and exclusive constitutional limitations on
the Senate’s sole power to try and decide impeachment cases. They argue
that unless there is a clear transgression of these constitutional limitations,
this Court may not exercise its power of expanded judicial review over the
actions of Senator-Judges during the proceedings. By the nature of the
functions they discharge when sitting as an Impeachment Court, Senator-
Judges are clearly entitled to propound questions on the witnesses,
prosecutors and counsel during the trial. Petitioner thus failed to prove any
semblance of partiality on the part of any Senator-Judges. But whether the Senate Impeachment Rules were followed or not, is a political question that
is not within this Court’s power of expanded judicial review.
In the first impeachment case decided by this Court, Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc.16 we ruled that the power of judicial review in this jurisdiction includes
the power of review over justiciable issues in impeachment proceedings.
Subsequently, in Gutierrez v. House of Representatives Committee on
Justice,17 the Court resolved the question of the validity of the simultaneous
referral of two impeachment complaints against petitioner Ombudsman
which was allegedly a violation of the due process clause and of the oneyear
bar provision.
On the basis of these precedents, petitioner asks this Court to
determine whether respondents committed a violation of the Constitution or
gravely abused its discretion in the exercise of their functions and
prerogatives that could translate as lack or excess of jurisdiction, which
would require corrective measures from the Court.
Mootness
In the meantime, the impeachment trial had been concluded with the
conviction of petitioner by more than the required majority vote of the
Senator-Judges. Petitioner immediately accepted the verdict and without
any protest vacated his office. In fact, the Judicial and Bar Council is
already in the process of screening applicants and nominees, and the
President of the Philippines is expected to appoint a new Chief Justice
within the prescribed 90-day period from among those candidates shortlisted
by the JBC. Unarguably, the constitutional issue raised by petitioner had
been mooted by supervening events and his own acts.
An issue or a case becomes moot and academic when it ceases to
present a justiciable controversy so that a determination thereof would be
without practical use and value. 18 In such cases, there is no actual
substantial relief to which the petitioner would be entitled to and which
would be negated by the dismissal of the petition.


Corona v. Senate (July 17, 2012)

Legalizing the P21 Billion budget allocation for the Conditional Cash Transfer Program (CCTP)

Indeed, a complete relinquishment of central government powers on
the matter of providing basic facilities and services cannot be implied as the
Local Government Code itself weighs against it. The national government is,
thus, not precluded from taking a direct hand in the formulation and
implementation of national development programs especially where it is
implemented locally in coordination with the LGUs concerned.
Every law has in its favor the presumption of constitutionality, and to
justify its nullification, there must be a clear and unequivocal breach of the
Constitution, not a doubtful and argumentative one.23 Petitioners have failed
to discharge the burden of proving the invalidity of the provisions under the
GAA of 2011. The allocation of a P21 billion budget for an intervention
program formulated by the national government itself but implemented in
partnership with the local government units to achieve the common national
goal development and social progress can by no means be an encroachment
upon the autonomy of local governments.

PIMENTEL V. OCHOA,(July 17, 2012)

Sunday, July 29, 2012

yap v. intermare maritime agencies (2011)

SECOND DIVISION

CLAUDIO S. YAP,

Petitioner,

- versus -

THENAMARIS SHIP’S MANAGEMENT

and INTERMARE MARITIME AGENCIES, INC.,

Respondents.

G.R. No. 179532

Present:

CARPIO, J.,

Chairperson,

NACHURA,

PERALTA,

ABAD, and

MENDOZA, JJ.

Promulgated:

May 30, 2011

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

Before this Court is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of Civil Procedure, seeking the reversal of the Court of Appeals (CA) Decision[2] dated February 28, 2007, which affirmed with modification the National Labor Relations Commission (NLRC) resolution[3] dated April 20, 2005.

The undisputed facts, as found by the CA, are as follows:

[Petitioner] Claudio S. Yap was employed as electrician of the vessel, M/T SEASCOUT on 14 August 2001 by Intermare Maritime Agencies, Inc. in behalf of its principal, Vulture Shipping Limited. The contract of employment entered into by Yap and Capt. Francisco B. Adviento, the General Manager of Intermare, was for a duration of 12 months. On 23 August 2001, Yap boarded M/T SEASCOUT and commenced his job as electrician. However, on or about 08 November 2001, the vessel was sold. The Philippine Overseas Employment Administration (POEA) was informed about the sale on 06 December 2001 in a letter signed by Capt. Adviento. Yap, along with the other crewmembers, was informed by the Master of their vessel that the same was sold and will be scrapped. They were also informed about the Advisory sent by Capt. Constatinou, which states, among others:

“ …PLEASE ASK YR OFFICERS AND RATINGS IF THEY WISH TO BE TRANSFERRED TO OTHER VESSELS AFTER VESSEL S DELIVERY (GREEK VIA ATHENS-PHILIPINOS VIA MANILA…

…FOR CREW NOT WISH TRANSFER TO DECLARE THEIR PROSPECTED TIME FOR REEMBARKATION IN ORDER TO SCHEDULE THEM ACCLY…”

Yap received his seniority bonus, vacation bonus, extra bonus along with the scrapping bonus. However, with respect to the payment of his wage, he refused to accept the payment of one-month basic wage. He insisted that he was entitled to the payment of the unexpired portion of his contract since he was illegally dismissed from employment. He alleged that he opted for immediate transfer but none was made.

[Respondents], for their part, contended that Yap was not illegally dismissed. They alleged that following the sale of the M/T SEASCOUT, Yap signed off from the vessel on 10 November 2001 and was paid his wages corresponding to the months he worked or until 10 November 2001 plus his seniority bonus, vacation bonus and extra bonus. They further alleged that Yap’s employment contract was validly terminated due to the sale of the vessel and no arrangement was made for Yap’s transfer to Thenamaris’ other vessels.[4]

Thus, Claudio S. Yap (petitioner) filed a complaint for Illegal Dismissal with Damages and Attorney’s Fees before the Labor Arbiter (LA). Petitioner claimed that he was entitled to the salaries corresponding to the unexpired portion of his contract. Subsequently, he filed an amended complaint, impleading Captain Francisco Adviento of respondents Intermare Maritime Agencies, Inc. (Intermare) and Thenamaris Ship’s Management (respondents), together with C.J. Martionos, Interseas Trading and Financing Corporation, and Vulture Shipping Limited/Stejo Shipping Limited.

On July 26, 2004, the LA rendered a decision[5] in favor of petitioner, finding the latter to have been constructively and illegally dismissed by respondents. Moreover, the LA found that respondents acted in bad faith when they assured petitioner of re-embarkation and required him to produce an electrician certificate during the period of his contract, but actually he was not able to board one despite of respondents’ numerous vessels. Petitioner made several follow-ups for his re-embarkation but respondents failed to heed his plea; thus, petitioner was forced to litigate in order to vindicate his rights. Lastly, the LA opined that since the unexpired portion of petitioner’s contract was less than one year, petitioner was entitled to his salaries for the unexpired portion of his contract for a period of nine months. The LA disposed, as follows:

WHEREFORE, in view of the foregoing, a decision is hereby rendered declaring complainant to have been constructively dismissed. Accordingly, respondents Intermare Maritime Agency Incorporated, Thenamaris Ship’s Mgt., and Vulture Shipping Limited are ordered to pay jointly and severally complainant Claudio S. Yap the sum of $12,870.00 or its peso equivalent at the time of payment. In addition, moral damages of ONE HUNDRED THOUSAND PESOS (P100,000.00) and exemplary damages of FIFTY THOUSAND PESOS (P50,000.00) are awarded plus ten percent (10%) of the total award as attorney’s fees.

Other money claims are DISMISSED for lack of merit.

SO ORDERED.[6]

Aggrieved, respondents sought recourse from the NLRC.

In its decision[7] dated January 14, 2005, the NLRC affirmed the LA’s findings that petitioner was indeed constructively and illegally dismissed; that respondents’ bad faith was evident on their wilful failure to transfer petitioner to another vessel; and that the award of attorney’s fees was warranted. However, the NLRC held that instead of an award of salaries corresponding to nine months, petitioner was only entitled to salaries for three months as provided under Section 10[8] of Republic Act (R.A.) No. 8042,[9] as enunciated in our ruling in Marsaman Manning Agency, Inc. v. National Labor Relations Commission.[10] Hence, the NLRC ruled in this wise:

WHEREFORE, premises considered, the decision of the Labor Arbiter finding the termination of complainant illegal is hereby AFFIRMED with a MODIFICATION. Complainant[’s] salary for the unexpired portion of his contract should only be limited to three (3) months basic salary.

Respondents Intermare Maritime Agency, Inc.[,] Vulture Shipping Limited and Thenamaris Ship Management are hereby ordered to jointly and severally pay complainant, the following:

1. Three (3) months basic salary – US$4,290.00 or its peso equivalent at the time of actual payment.

2. Moral damages – P100,000.00

3. Exemplary damages – P50,000.00

4. Attorney’s fees equivalent to 10% of the total monetary award.

SO ORDERED.[11]


Respondents filed a Motion for Partial Reconsideration,[12] praying for the reversal and setting aside of the NLRC decision, and that a new one be rendered dismissing the complaint. Petitioner, on the other hand, filed his own Motion for Partial Reconsideration,[13] praying that he be paid the nine (9)-month basic salary, as awarded by the LA.

On April 20, 2005, a resolution[14] was rendered by the NLRC, affirming the findings of Illegal Dismissal and respondents’ failure to transfer petitioner to another vessel. However, finding merit in petitioner’s arguments, the NLRC reversed its earlier Decision, holding that “there can be no choice to grant only three (3) months salary for every year of the unexpired term because there is no full year of unexpired term which this can be applied.” Hence –

WHEREFORE, premises considered, complainant’s Motion for Partial Reconsideration is hereby granted. The award of three (3) months basic salary in the sum of US$4,290.00 is hereby modified in that complainant is entitled to his salary for the unexpired portion of employment contract in the sum of US$12,870.00 or its peso equivalent at the time of actual payment.

All aspect of our January 14, 2005 Decision STANDS.

SO ORDERED.[15]

Respondents filed a Motion for Reconsideration, which the NLRC denied.

Undaunted, respondents filed a petition for certiorari[16] under Rule 65 of the Rules of Civil Procedure before the CA. On February 28, 2007, the CA affirmed the findings and ruling of the LA and the NLRC that petitioner was constructively and illegally dismissed. The CA held that respondents failed to show that the NLRC acted without statutory authority and that its findings were not supported by law, jurisprudence, and evidence on record. Likewise, the CA affirmed the lower agencies’ findings that the advisory of Captain Constantinou, taken together with the other documents and additional requirements imposed on petitioner, only meant that the latter should have been re-embarked. In the same token, the CA upheld the lower agencies’ unanimous finding of bad faith, warranting the imposition of moral and exemplary damages and attorney’s fees. However, the CA ruled that the NLRC erred in sustaining the LA’s interpretation of Section 10 of R.A. No. 8042. In this regard, the CA relied on the clause “or for three months for every year of the unexpired term, whichever is less” provided in the 5th paragraph of Section 10 of R.A. No. 8042 and held:

In the present case, the employment contract concerned has a term of one year or 12 months which commenced on August 14, 2001. However, it was preterminated without a valid cause. [Petitioner] was paid his wages for the corresponding months he worked until the 10th of November. Pursuant to the provisions of Sec. 10, [R.A. No.] 8042, therefore, the option of “three months for every year of the unexpired term” is applicable.[17]

Thus, the CA provided, to wit:

WHEREFORE, premises considered, this Petition for Certiorari is DENIED. The Decision dated January 14, 2005, and Resolutions, dated April 20, 2005 and July 29, 2005, respectively, of public respondent National Labor Relations Commission-Fourth Division, Cebu City, in NLRC No. V-000038-04 (RAB VIII (OFW)-04-01-0006) are hereby AFFIRMED with the MODIFICATION that private respondent is entitled to three (3) months of basic salary computed at US$4,290.00 or its peso equivalent at the time of actual payment.

Costs against Petitioners.[18]


Both parties filed their respective motions for reconsideration, which the CA, however, denied in its Resolution[19] dated August 30, 2007.

Unyielding, petitioner filed this petition, raising the following issues:

1) Whether or not Section 10 of R.A. [No.] 8042, to the extent that it affords an illegally dismissed migrant worker the lesser benefit of – “salaries for [the] unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less” – is constitutional; and

2) Assuming that it is, whether or not the Court of Appeals gravely erred in granting petitioner only three (3) months backwages when his unexpired term of 9 months is far short of the “every year of the unexpired term” threshold.[20]

In the meantime, while this case was pending before this Court, we declared as unconstitutional the clause “or for three months for every year of the unexpired term, whichever is less” provided in the 5th paragraph of Section 10 of R.A. No. 8042 in the case of Serrano v. Gallant Maritime Services, Inc.[21] on March 24, 2009.

Apparently, unaware of our ruling in Serrano, petitioner claims that the 5th paragraph of Section 10, R.A. No. 8042, is violative of Section 1,[22] Article III and Section 3,[23] Article XIII of the Constitution to the extent that it gives an erring employer the option to pay an illegally dismissed migrant worker only three months for every year of the unexpired term of his contract; that said provision of law has long been a source of abuse by callous employers against migrant workers; and that said provision violates the equal protection clause under the Constitution because, while illegally dismissed local workers are guaranteed under the Labor Code of reinstatement with full backwages computed from the time compensation was withheld from them up to their actual reinstatement, migrant workers, by virtue of Section 10 of R.A. No. 8042, have to waive nine months of their collectible backwages every time they have a year of unexpired term of contract to reckon with. Finally, petitioner posits that, assuming said provision of law is constitutional, the CA gravely abused its discretion when it reduced petitioner’s backwages from nine months to three months as his nine-month unexpired term cannot accommodate the lesser relief of three months for every year of the unexpired term.[24]

On the other hand, respondents, aware of our ruling in Serrano, aver that our pronouncement of unconstitutionality of the clause “or for three months for every year of the unexpired term, whichever is less” provided in the 5th paragraph of Section 10 of R.A. No. 8042 in Serrano should not apply in this case because Section 10 of R.A. No. 8042 is a substantive law that deals with the rights and obligations of the parties in case of Illegal Dismissal of a migrant worker and is not merely procedural in character. Thus, pursuant to the Civil Code, there should be no retroactive application of the law in this case. Moreover, respondents asseverate that petitioner’s tanker allowance of US$130.00 should not be included in the computation of the award as petitioner’s basic salary, as provided under his contract, was only US$1,300.00. Respondents submit that the CA erred in its computation since it included the said tanker allowance. Respondents opine that petitioner should be entitled only to US$3,900.00 and not to US$4,290.00, as granted by the CA. Invoking Serrano, respondents claim that the tanker allowance should be excluded from the definition of the term “salary.” Also, respondents manifest that the full sum of P878,914.47 in Intermare’s bank account was garnished and subsequently withdrawn and deposited with the NLRC Cashier of Tacloban City on February 14, 2007. On February 16, 2007, while this case was pending before the CA, the LA issued an Order releasing the amount of P781,870.03 to petitioner as his award, together with the sum of P86,744.44 to petitioner’s former lawyer as attorney’s fees, and the amount of P3,570.00 as execution and deposit fees. Thus, respondents pray that the instant petition be denied and that petitioner be directed to return to Intermare the sum of US$8,970.00 or its peso equivalent.[25]

On this note, petitioner counters that this new issue as to the inclusion of the tanker allowance in the computation of the award was not raised by respondents before the LA, the NLRC and the CA, nor was it raised in respondents’ pleadings other than in their Memorandum before this Court, which should not be allowed under the circumstances.[26]

The petition is impressed with merit.

Prefatorily, it bears emphasis that the unanimous finding of the LA, the NLRC and the CA that the dismissal of petitioner was illegal is not disputed. Likewise not disputed is the tribunals’ unanimous finding of bad faith on the part of respondents, thus, warranting the award of moral and exemplary damages and attorney’s fees. What remains in issue, therefore, is the constitutionality of the 5th paragraph of Section 10 of R.A. No. 8042 and, necessarily, the proper computation of the lump-sum salary to be awarded to petitioner by reason of his illegal dismissal.

Verily, we have already declared in Serrano that the clause “or for three months for every year of the unexpired term, whichever is less” provided in the 5th paragraph of Section 10 of R.A. No. 8042 is unconstitutional for being violative of the rights of Overseas Filipino Workers (OFWs) to equal protection of the laws. In an exhaustive discussion of the intricacies and ramifications of the said clause, this Court, in Serrano, pertinently held:

The Court concludes that the subject clause contains a suspect classification in that, in the computation of the monetary benefits of fixed-term employees who are illegally discharged, it imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed-term employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage.[27]

Moreover, this Court held therein that the subject clause does not state or imply any definitive governmental purpose; hence, the same violates not just therein petitioner’s right to equal protection, but also his right to substantive due process under Section 1, Article III of the Constitution.[28] Consequently, petitioner therein was accorded his salaries for the entire unexpired period of nine months and 23 days of his employment contract, pursuant to law and jurisprudence prior to the enactment of R.A. No. 8042.

We have already spoken. Thus, this case should not be different from Serrano.

As a general rule, an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative as if it has not been passed at all. The general rule is supported by Article 7 of the Civil Code, which provides:

Art. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse or custom or practice to the contrary.

The doctrine of operative fact serves as an exception to the aforementioned general rule. In Planters Products, Inc. v. Fertiphil Corporation,[29] we held:

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration.

The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it.[30]

Following Serrano, we hold that this case should not be included in the aforementioned exception. After all, it was not the fault of petitioner that he lost his job due to an act of illegal dismissal committed by respondents. To rule otherwise would be iniquitous to petitioner and other OFWs, and would, in effect, send a wrong signal that principals/employers and recruitment/manning agencies may violate an OFW’s security of tenure which an employment contract embodies and actually profit from such violation based on an unconstitutional provision of law.

In the same vein, we cannot subscribe to respondents’ postulation that the tanker allowance of US$130.00 should not be included in the computation of the lump-sum salary to be awarded to petitioner.

First. It is only at this late stage, more particularly in their Memorandum, that respondents are raising this issue. It was not raised before the LA, the NLRC, and the CA. They did not even assail the award accorded by the CA, which computed the lump-sum salary of petitioner at the basic salary of US$1,430.00, and which clearly included the US$130.00 tanker allowance. Hence, fair play, justice, and due process dictate that this Court cannot now, for the first time on appeal, pass upon this question. Matters not taken up below cannot be raised for the first time on appeal. They must be raised seasonably in the proceedings before the lower tribunals. Questions raised on appeal must be within the issues framed by the parties; consequently, issues not raised before the lower tribunals cannot be raised for the first time on appeal.[31]

Second. Respondents’ invocation of Serrano is unavailing. Indeed, we made the following pronouncements in Serrano, to wit:

The word salaries in Section 10(5) does not include overtime and leave pay. For seafarers like petitioner, DOLE Department Order No. 33, series 1996, provides a Standard Employment Contract of Seafarers, in which salary is understood as the basic wage, exclusive of overtime, leave pay and other bonuses; whereas overtime pay is compensation for all work “performed” in excess of the regular eight hours, and holiday pay is compensation for any work “performed” on designated rest days and holidays.[32]

A close perusal of the contract reveals that the tanker allowance of US$130.00 was not categorized as a bonus but was rather encapsulated in the basic salary clause, hence, forming part of the basic salary of petitioner. Respondents themselves in their petition for certiorari before the CA averred that petitioner’s basic salary, pursuant to the contract, was “US$1,300.00 + US$130.00 tanker allowance.”[33] If respondents intended it differently, the contract per se should have indicated that said allowance does not form part of the basic salary or, simply, the contract should have separated it from the basic salary clause.

A final note.

We ought to be reminded of the plight and sacrifices of our OFWs. In Olarte v. Nayona,[34] this Court held that:

Our overseas workers belong to a disadvantaged class. Most of them come from the poorest sector of our society. Their profile shows they live in suffocating slums, trapped in an environment of crimes. Hardly literate and in ill health, their only hope lies in jobs they find with difficulty in our country. Their unfortunate circumstance makes them easy prey to avaricious employers. They will climb mountains, cross the seas, endure slave treatment in foreign lands just to survive. Out of despondence, they will work under sub-human conditions and accept salaries below the minimum. The least we can do is to protect them with our laws.

WHEREFORE, the Petition is GRANTED. The Court of Appeals Decision dated February 28, 2007 and Resolution dated August 30, 2007 are hereby MODIFIED to the effect that petitioner is AWARDED his salaries for the entire unexpired portion of his employment contract consisting of nine months computed at the rate of US$1,430.00 per month. All other awards are hereby AFFIRMED. No costs.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

Chairperson

DIOSDADO M. PERALTA

Associate Justice

ROBERTO A. ABAD

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

A T T E S T A T I O N

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

ANTONIO T. CARPIO

Associate Justice

Chairperson, Second Division

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

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

RENATO C. CORONA

Chief Justice



[1] Rollo, pp. 33-56.

[2] Penned by Associate Justice Antonio L. Villamor, with Associate Justices Pampio A. Abarintos and Stephen C. Cruz, concurring; id. at 60-73.

[3] Id. at 166-170.

[4] Supra note 2, at 63-65.

[5] Rollo, pp. 121-129.

[6] Id. at 129.

[7] Id. at 130-149.

[8] The last clause in the 5th paragraph of Section 10, R.A. No. 8042, provides to wit:

Sec. 10. MONEY CLAIMS. — x x x.

In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. (Emphasis and underscoring supplied.)

[9] The Migrant Workers and Overseas Filipinos Act of 1995, effective July 15, 1995.

[10] 371 Phil. 827 (1999).

[11] Supra note 7, at 148-149.

[12] Rollo, pp. 157-163.

[13] Id. at 150-156.

[14] Id. at 166-170.

[15] Id. at 170.

[16] Id. at 171-196.

[17] Supra note 2, at 70.

[18] Id. at 72-73.

[19] Rollo, pp. 96-99.

[20] Supra note 1, at 44-45.

[21] G.R. No. 167614, March 24, 2009, 582 SCRA 254.

[22] Section 1, Article III of the Constitution provides:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

[23] Section 3, Article XIII of the Constitution pertinently provides:

Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.

[24] Rollo, pp. 312-331.

[25] Id. at 290-303.

[26] Supra note 24.

[27] Supra note 21, at 295.

[28] Id. at 303.

[29] G.R. No. 166006, March 14, 2008, 548 SCRA 485.

[30] Id. at 516-517. (Citations omitted.)

[31] Ayson v. Vda. De Carpio, 476 Phil. 525, 535 (2004).

[32] Supra note 21, at 303. (Emphasis supplied.)

[33] Supra note 16, at 173.

[34] 461 Phil. 429, 431 (2003).