dissenting opinion.j.sereno.in re letters of atty. mendoza.docx

8/9/2019 dissenting opinion.j.sereno.in re letters of atty. mendoza.docx

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EN BANC

A.M. No. 11-10-1-SC Re: Letters of Atty. Estelioza egardig R 178083 - Flight Attendants and Stewards Association of the Philippines (FASAP)v. Philippine Airlines, Inc. (PAL), Patria Chiong and Court of Appeals.

Promulgated:

March 13, 2012

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

DISSENTING OPINION

SERENO, J. :

The majority Resolution has opened a Pandoras box full of future trbl

Philippine judicial decision-making. First , it opened for review a Decision on the

merits that had been unanimously agreed upon and affirmed by at least ten (10)

justices sitting in

third time. Second , it has made a possible, and we em phasize, only a possible error

in the raffling of the case t o a wrong ponente a jurisdictional defect as to ren der i nvalidthat ponente s decision and the concurrence thereto by four colleagues. Third , t his

extreme ipping was prompted not even by a formal motion for reconsideration by

the losing party, but by four (4) letters f rom its co unsel addressed not to th e Court, but

only to the Clerk of Court. Fourth , the circumstances u nder which this ipping was

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made are s o cu riously strange where the ve (5) justices who voted to deny the secon d

motion for reconsideration (2 nd MR), according to the ponente who penned the

Resolution of denial, themselves initiated moves t o prevent their promulgated decision

from ever becoming nal. Fifth , for t he rst time in Philippine law, a ponente is b eingcalled only a nominal one, i.e ., a ponente with authority to admit a 2 nd MR but who

upon successfully recommending the same to his Division, immediately loses

authority over that case by virtue of such favorable recommendation, to a ruling

ponente , who will then have t he a uthority to write t he d ecision on the m erits.

Immediate Antecedents of the

04 October 2011 En Banc Session

On 04 October 2011, the Court En Banc, in its 10 a.m. session, considered

item no. 147 entitled Re: Letters of Atty. Estelito P. Mendoza re: G.R. No. 178083

Flight Attendants and Stewards Association of the Philippines (FASAP) v. Philippine

Airlines, Inc. (PAL), The agenda item consisted of two sub-items: (a)

the 1 st Indorsement dated 03 October 20 11 of Atty. Enriqueta E. Vidal, Clerk of Court

En Banc, referring to the En Banc four letters of Atty. Estelito P. Mendoza (the

Mendoza letters) dated September 13, 16, 20 and 22, 2011 all addressed to her

regarding G. R. No. 178083 (the Mendoza letters) for t he inclusion thereof in the

Court En Bancs Agenda; and as items (b) to (e) of the Agenda the aforesaid Mendoza

letters, which were b riey d escribed in chronological order.

The Mendoza letters are all in connection with G. R. No. 178083 (the main

FASAP case), a case now lodged with the Second Division of this Court . On 07

September 2011, the Second Division issued an unsigned extended Resolution (07

September 2011 Resolution) on the said case denying the Second Motion for

Reconsideration (2 nd MR) of Philippine Airlines, Inc. (PAL), the resp ondent therein.

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First, the issues raised by PAL in its 2 nd MR have already beendiscussed and sett led by the Court in its Ju ly 22, 2008 Decision . TheFlight Attendants and Stewards Association of the Phils. (FASAP) iscorrect i n its position that the resolution sustained the challengeddecision dated 22 July 2008. To reiterate, the C ourt is n ot r equired tore-state its factual a nd legal ndings in its Resolution. The Courtssupposed silence cannot be construed as a repudiation of the originaldecision; it on ly implies that t he Court sustained the decision in itsentirety.

Second, although the subsequent Resolution did not discuss allthe issues rai sed by the petitioner, it does not m ean that t he Court didnot take these i ssues i nto consideration.

Finally, the Resolution did not modify the J uly 22, 2008 Decision

of the Court. The Resolution clearly upheld its original ru ling andunequivocally stated so when we sai d:

Therefore, this Court nds no reason to disturb itsnding that the retrenchment of the ight attendants wasillegally executed. As held in the Decision sought to bereconsidered, PAL failed to observe the procedure andrequirements for a valid retrenchment. Assuming thatPAL was indeed suffering nancial losses, the requisiteproof therefor was not presented before the NLRC which

was the proper forum. More importantly, the manner of the retrenchment was not in accordance with theprocedure required by law. Hence, the retrenchment of theight attendants a mounted to illegal dismissal.

Signicantly, PAL appeared to have deliberately omitted the abovehighlighted portions o f the Courts Resolution in its 2 nd MR. The omissionappears to us to be deliberate as we not on ly referred to our originalnding that PAL failed to observe the proper procedures andrequirements of a valid retrenchment; we also reaffi rmed thesendings . Thus, PAL appears t o be less t han honest in its claim.

To conclude, the rights and privileges that PAL unlawfully withheld from its employees have been in dispute for a decade and a

Many of these employees h ave since then moved on, but the arbitrarinessand illegality of PALs actions have yet t o be rectied. This case hasdragged on for so long and we are now more than duty-bound tonally put an end to the illegality that took place; otherwise, the

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illegally retrenched employees can rightfully claim that the Courthas denied them justice.

WHEREFORE, the Court resolves to deny with nality respondentPALs second motion for recon sideration. No further p leadings shall beentertained. Costs against t he respondents. Let entry of judgment bemade in due course.

SO ORDERED. (Emphasis supplied; footnotes omitted).

The En Banc Resolution of 04 October 2011

The Mendoza letters, as earlier mentioned, were taken up in the En Banc

session on 04 October 2011. As a result, the following Resolution (the 04 October

2011 Resolution) was issued by the Court En Banc, which recalled the 07 September

2011 Resolution of the Second Division:

RESOLUTION

Pursuant t o Section 3(m) and (n), Rule II of the Internal Rules o fthe Supreme Court, the Court En Banc resolves to accept G.R. No.178083 (Flight Attendants and Stewards Association of the Philippines[FASAP] v. Philippine Airlines, Inc. (PAL), Patricia Chiong, Et Al.)

The Court En Banc further resolves to recall the Resolutiondated September 7, 2011 issued by the S econd Division in this ca se.

The Court furthermore resolves to re-raffle this case to a newMember-in-Charge. (Carpio, Velasco, Jr., Leonardo-de Castro and DelCastillo, JJ ., no part. Brion, J. , no part i nsofar as the re-raffle isconcerned.) [Footnotes o mitted; emphasis su pplied].

By virtue of this 04 October 2011 Resolution, the main FASAP case was re-

raffled and initially assigned to Justice Maria Lourdes P.A. Sereno on 10 October

2011. That assignment intended to have the new Member-in-Charge recommend a

course of action for the Court En Banc on the main FASAP case, particularly on PALs

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2 nd MR. Such recommendation would have necessitated this Member-in-Charge to

evaluate all the records of the main FASAP case i n G. R. No. 178083. The evaluation of

the record would have been the fourth evaluation of the case by the Court and

effectively an action on a third motion for reconsideration of the original Decision

dated 22 July 2008 (the 22 July 2008 Decision). Instead, what was d iscovered by the

assigned Member-in-Charge from a review of the records is that the 07 September

2011 Resolution of the Second Division should not even have been recalled; thus, a

fourth evaluation of the record , or a resolution of what is eff ectively a third motion for

reconsideration, is co mpletely u nwarranted. I thus ci rculated a draft resolution to the

Court for the recall of the 04 October 2011 Resolution, which has now become this

Dissenting Opinion. Sadly, the majority of this Court chose to ignore judicialprecedents an d compel another review of the main FASAP case, specically by the two

remaining members of the Division, who themselves twice ear lier denied PALs m otions

for reconsideration.

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I

Assignment of Cases to the Court En Banc or in Division

As designed by the Constitution, the Court acts either En Banc or throughthree (3) Divisions of ve (5) Members ea ch. The rst arrangement involves a ll fteen

(15) Members of the Court, and the cases which the En Banc may take cognizance of

are dened by the Constitution and by the Internal Rules of the Supreme Court. All

other cases are a ssigned to one of the t hree D ivisions. A Rule 4 5 petition for r eview on

certiorari of a Court of Appeals Decision involving a labor d ispute, such as the main

FASAP case, is cogn izable by a Division.

The rst step in the assignment of a case led with the Supreme Court is the

determination or classication of whether it is p roperly an En Banc or a Division case.

The case is then listed with

they were led for random assignment. This process is supervised by two Raffle

Committees, one for En Banc cases an d another for Division cases. These com mittees

have three (3) members ea ch, chaired by the two (2) most senior associ ate justices,

with the four other slots their seniority.

Membership in the three Divisions of the Court is also determined by seniority.

When a Member departs from the Court, the memberships in the Divisions also

change as a result of the change in seniority of the remaining justices. Thus, a

Member who st ays in the Court for a si gnicant period of time will periodically be re-

assigned to different D ivisions. The rules also provide that a case follows its ponente when he or she transfers to another

II

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Conclusions from the Records on the main FASAP case in G.R. No.

178083 from 18 July 2007 to 04 October 2011.

On 18 July 2007, the above Petition was led by the Flight Attendants and

Stewards Association of the Philippines (FASAP). It was raffled on 20 June 2007 to

now retired Justice Consuelo Ynares-Santiago.

On 22 July 2008, Justice Ynares-Santiago penned the Decision of the Third

Division on the case. The Division ruled in favor of petitioner FASAP and found PAL

guilty of illegal dismissal. The ponencia was u nanimously concurred in by Justices Ma.

Alicia Austria-Martinez, Minita Chico-Nazar

Leonardo-de Castro. The counsel of record to whom the Notice of Judgment was sent

was the SyCip Salazar Hernandez and Gatmaitan law rm (SyCip law rm).

On 20 August 2008, PAL, through the SyCip law rm, led the 1 st MR of even

date a nd prayed for t he reversal of the 2 2 July 2008 Decision of the Third Division.

On 10 February 2009, PAL, through the SyCip law rm and now in collaboration with

Atty. Estelito P. Mendoza, a

Motion was g ranted and notices w ere sen t to the cou nsel of the parties, including Atty.

Mendoza. In the oral argument on the case held on 18 March 2009, Atty. Lozano Tan

of the SyCip law rm and Atty. Mendoza appeared as counsel for PAL.

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On 02 October 2009, the Special Third Division of the Court denied with nality

PALs 1 st MR through a signed Resolution (the 02 October 2009 Resolution) penned by

Justice Ynares-Santiago and concurred in by

Diosdado M. Peralta (vice Ju stice Austria-Martinez who had retired) and Lucas P.Bersamin (vice J ustice Leonardo-de C astro, who h ad earlier inhibited for p ersonal

reasons). It was a unanimous Decision. Justice Ynares-Santiago retired three d ays

later, on 05 October 2009. Notice of Judgment was sen t to PAL through the SyCip law

rm; as w ell as t o Attys. Estelito P. Mendoza a nd Claudette A. de la Cerna, who were

denominated in the Notice of Judgment also as cou nsel for PAL. The claim publicly

made by FA SAP t hat Atty. Mendoza was n ot a counsel of record w as t herefore

refuted by the Division Clerk of Courts a ction of describing h im in a Notice a scounsel for r espondent.

The dispositive portion of the 02 October 2009 Resolution reads:

WHEREFORE , for lack of merit, the Motion for

Reconsideration is hereby DENIED with FINALITY . The assailedDecision dated July 22, 2008 is AFFIRMED with MODIFICATION inthat the award of attorneys fees a nd expenses o f litigation is red uced to 2,000,000.00. The case is hereby REMANDED to the Labor Arbitersolely for the purpose of computing the exact amount of the awardpursuant to th e gu idelines h erein stated.

No further pleadings w ill be en tertained.

SO ORDERED .

On 03 November 2009, respondent PAL, through both the SyCip law rm and law

office of Atty. Mendoza (Estelito P. Mendoza & Associates), asked for l eave t o le a

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motion for reconsideration of the 02 October 2009 Resolution and a secon d motion for

reconsideration of the 22 July 2008 Decision and attached thereto were the twin

motions (the 2 nd MR). At the time this 2 nd MR was led, Justice Ynares-Santiago, who

penned both the 22 July 2008 Decision and 02 October 2009 Resolution, had already

reti red.

On 11 November 2009, per Special Order No. 792, the Raffle Committee

composed of then Associate J ustices Renato C. Corona, Chico-Nazario and Presbitero J. Velasco, Jr. had to

who the new ponente of the case would be in view of the retirement of Justice Ynares-

Santiago. Ordinarily, a second motion for reconsideration, con sidering that it is

prohibited, is n ot en tertained by the Court. Thus, ordinarily, had Justice Ynares-

Santiago not yet retired, the 2 nd MR would just have been ordered expunged

from the record for being an unauthorized pleading .

It must be emphasized that even in Tirazona v. Philippine EDS Techno-Service,

Inc., (PET, I nc.) , a case cited by the m ajority Resolution, the Court found that u nless

there is an extraordinarily persuasive reason to entertain a second motion for

reconsideration, it must be d enied outright for l ack of merit:

Section 2, Rule 52 of the Rules o f Court explicitly decrees t hat n o

second motion for reconsideration of a judgment or n al resolution bythe same party shall be entertained. Accordingly, a second motion forreconsideration is a prohibited pleading, which shall not be allowed,except for ext raordinarily persuasive reason s a nd only after an expressleave shall have rst been obtained. In this case, we fail to nd anysuch extraordinarily persuasive reason to allow Tirazonas SecondMotion for Reconsideration.

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WHEREFORE, the Motion for Leave to File [a] Second Motion forReconsideration is hereby DENIED for lack of merit and the SecondMotion for Reconsideration incorporated therein is NOTED WITHOUT

ACTION in view of the denial of the former. (Emphasis supplied)

The Minutes of the Raffle Committee meeting of 11 November 2009, which

included the qu eries o f its S ecretariat reected the Committees r esponse a s follows:

The case was decided by the Third Division on July 22, 2008. Themotion for r econsideration was d enied with nality on October 2, 2009.Both the decision and resolution on the MR were pen ned by retired

Justice Ynares-Santiago.

In cases w here the regular D ivision which rendered the [Decision]is n o longer com plete as when one of them has retired, a special divisionis created under A.M. No. 99-8-09-SC. However, A.M. No. 99-8-09-SCspecically states t hat it does not apply where the motion has beendenied with nality.

QUERY: May this case be act ed upon by the regular Third Division and raffled amongits Members? Note: Justice Corona a lready inhibited from this case; thus, anadditional Member must be designated from the other two Divisions to replace J usticeCorona.

(Answer in handwritten note): Yes, PVadditional member AC

OR

Should this case be i nherited by Ju stice Villarama who su cceeded Justice Ynares-Santiago? NOTE: The ca se w ill be t ransferred to the F irst Division.

(Answer in handwritten note): No

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In line with the above answers to the queries, the Raffle Committee raffled the

case among the regular members of the Third Division , then composed of then

Associate Justices Corona, Chico-Nazario,

raffled to Justice Velasco . Since Justice Corona, a regular member of the Third

Division, had inhibited himself from the main FASAP case, Justice Carpio was

designated to replace him as an additional member during the same days raffle.

According to the Report dated 14 July 2008 of mi

Corona inhibited due to his p revious efforts in settling the con troversy when he was

still in Malacaang.

A.M. No. 99-8-09-SC, which was the justicatin

Committee, provided for the rules on who among the Members of this Court shall be

assigned to resolve m otions for recon siderations i n cases assigned to the D ivisions. It

took effect by its exp ress p rovision on 01 April 2000 and was t he prevailing ru le at the

time of the raffle on 11 November 2009. Its relevant provision reads:

RULES ON WHO SHALL RESOLVE MOTIONS FORRECONSIDERATION IN CASES ASSIGNED TO THE DIVISIONS OF

THE COURT

2. If the ponente is n o longer a Member of the Court or is d isqualied orhas i nhibited himself from acting on the motion, he sh all be replaced by another

Justice who shall be chosen by raffle from among the rmainig embers of Division who participated in the ren dition of the d ecision or r esolution and whoconcurred therein. If only one member of the Court who participated and concurred inthe rendition of the decision or r esolution remains, he sh all be designated as t he

ponente .

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These rules shall not apply to motions for reconsideration ofdecisions or resolutions already denied with nality . (Emphasissupplied.)

This interpretation by the Raffle Committee makes perfect sense, since acontrary interpretation would prevent a d ecision from ever being con sidered as h aving

been denied with nality by the mere reconsideration. The Raffle Committee h as t he r ight to presume that a nal decision isindeed nal, since a second motion for r econsideration is ex pressly p rohibited by t heRules of Court and the Internal Rules of the Supreme Court. The admission of asecond motion for reconsideration is h ighly con tingent on the demonstration of an

exceptional circumstance that would warrant the allowance of a secon d motion forreconsideration.

It is important to note that a co ntrary o pinion that the case sh ould have b eenraffled to a Member of the Division who participated in the deliberation on theDecision or t he Resolution denying the rst Motion for R econsideration did not seemto be held by Justice Chico-Nazario, a m ember of the Raffle Committee. Havingconcurred in both the original 22 July 2008 Decision as w ell as in the 02 October

2009 Resolution that denied the 1st MR, Justice Chico-Nazario, as con curringMember of the Third Division in both Decisions, could have opined that the case w asnot really denied with nality as t hat is u nderstood in A.M. No. 99-8-09-SC. Thus, shecould have asse rted that the case b e raffled among J ustices Nachura, Peralta,Bersamin, and herself, but she d id not. Instead, she ap peared t o h ave h eld the viewthat the raffl ing of the ca se f alls u nder t he exce ption that [these] rules sh all not applyto motions f or recon sideration of decisions o r r esolutions a lready denied with nality.

The only conclusion from Justice Chico-Nazarios action as a Member of te

Raffle Committee is t hat she interpreted the denial with nality as a gen uine denial with nality, which would not requiMembers of the Division that decided and resolved the case. Rather, the al ternativerule requiring that the case be r affled among the regular Members of the ThirdDivision whether or n ot they took part in the Decision would apply.

The Clerk of Court, Atty. Enriqueta E. Vidal, through AttyDeputy Clerk of Court, explained in a Memorandum dated 26 September 2011 (the

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Vidal-Anama Memorandum) the actions of the Raffle Committee for Division Cases with respect to the main FASAP case in

The case was referred to the Raffle Committee in November 2009in view of the ling of the Motion for Leave t o File a nd Admit Motion for

Reconsideration of the Resolution dated October 2, 2009 and SecondMotion for Reconsideration of the D ecision dated July 22, 2008 mentionedon page 3 of the Letter dated September 13, 2011 of Atty. Mendoza. Atthat time, Justice Ynares-Santiago h ad already retired. Moreover, thestanding ru les w ith respect to motions for r econsideration in casesassigned to the Divisions of the Court were p rovided in A. M. No. 99-8-09-SC.

A. M. No. 99-8-09-SC mandated the creation of a special divisionto a ct on motions for r econsideration of decisions o r signed resolutions o fthe D ivisions o f the C ourt. However, it specically stat ed that it did notapply to cases where the motion for reconsideration was alreadydenied with nality .

Thus, on November 11, 2009, the Raffle Committee resolved that aspecial division need not be c reated to act on the a forecited pendingsecond motion for r econsideration and proceeded to raffle the caseamong the regular Members of the Third Division . As the raffleagenda would show, the case w as r affled to Justice Presbitero J . Velasco,

Jr.

On 20 January 2010, with Justice Velasco as the new ponente , the regular

Third Division, acting on PALs motion for leav

attached 2 nd MR itself, resolved: (1) to grant t he two motions and (2) to require the

parties to comment on PALs twin Motions for Reconsideration and FASAPs Urgent

Appeal to the Supreme Court Justices dated 23 November 2009 (

Resolution). Then Associate J ustice Corona, according to the Resolution, took no parttherein. The names of Ju stices Carpio, Velasco (chairperson), Nachura, Per alta, an d

Bersamin appeared in the Resolution.

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Notably, in taking part in the 20 January 2 010 Resolution, Justices N achura, Peralta,

and Bersamin all of whom took part in the denial of the 1 st MR in the 02 O ctober

2009 Resolution cou ld have o bjected to either: (a) the a ssignment of the ca se t o

Justice Velasco, a member of the regul

either ac tion; or ( b) the n on-constitution of a Special Third Division. However, none o f

them did. Justice Nachura, it must be ad ditionally noted, had concurred in both the

original 22 July 2008 Decision and the 02 October 2009 Resolution.

On 17 May 2010, Chief Justice Renato Corona, who had then been appointed

Chief Justice, issued Special Order No. 83 8 reorganizing the three Divisions of the

Court in view of his vacating his former p osition as Associate Justice. As a result,

Justice Velasco, Jr. was transferred . Under the ap plicable rule

on the effect of reorganization, the main FASAP case, which was a ssigned to Justice

Velasco, was correspondingly transferred

Arturo D. Brion was assigned to the Thi

On 17 January 2 011, Justice Velasco inhibited himself due to a close rel ationship to

a party. The F irst Division, to which he was t ransferred, thus ref erred the m atter t o

the Raffle Committee for desi gnation of additional members, the intention being to

seek a repl acement ponente for J ustice Velasco.

On 26 January 2011, the Raffle Committee for Division Cases (composed of Justices

Conchita Carpio Morales, Nachura and Arturo D. Brion) resolved, in its Minutes, as

follows:

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The case is presently assigned to Justice Velasco, the ca se d ue to close rel ation to one of the p arties.

Following th e p ertinent provision of Administrative C ircular N o. 84-2007,the case must be raffled among the Members of the Second and Third Division .

*Justice De Castro also recused f rom the case.

(NB: The handwritten note in the minutes designated the new ponente asa resu lt of the raffle by h is a cronym - AB - referring to J ustice B rion).

As a result of the 26 January 2011 raffle, the case fell on the lap of

Brion, who was t hen a m ember of the Third Division.

Administrative Circular No. 84-2007, cited in the Report of the Raffle

Committee, provided the various rules o n the inhibition, leaves a nd vacancies o f the

ponente or other members of the Division in pending cases and their proper

substitution. The old rule was t hat when the ponente inhibits f rom the ca se, the ca se

shall be returned to the Raffle Committee for re-raffling among the other Members

of the same Division with one ad ditional Member from the other two Divisions:

2. Whenever the ponente , in the exercise of sounddiscretion, inhibits herself or himself from the case for just and validreasons other than those mentioned in paragraph 1, a to f above, thecase shall be returned to the Raffle Committee for re-raffling among

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the other Members of the same Division with one additional Memberfrom the other t wo Divisions. (Emphasis supplied)

These Rules have been twice amended; rst, on 04 May 2010; second, on 03

August 2010. At the time that the case was assigned

ponente by the 26 January 2011 raffle, the pertinent rule was that provided in the 03

August 2010 amendment. The Resolution dated 03 August 2010 in A.M. No. 10-4-

20-SC amended Rule 8, Sections 2 an d 3(a) of the Internal Rules of the Supreme

Court . The am ended rule reads as f ollows:

Motion to inhibit a Division or a M ember of the C ourt . A motion for

inhibition must be in writing an d under oath and shall state the groundstherefor.

No motion for inhibition of a Division or a Member of the Courtshall be gran ted after a d ecision on the m erits or su bstance of the ca sehas been rendered or issued by any Division, except for a valid or justreason such as an allegation of a graft and corrupt pract ice or a groundnot earlier ap parent. (Rule 8, Sec. 2, Internal Rules of the SupremeCourt)

Effects of Inhibition . The consequences of an inhibition of aMember of the Court shall be governed by these r ules:

(a) Whenever a Member-in-Charge of a case in a Division

inhibits himself for a just and valid reason , the case shall bereturned to the Raffle Committee for re-raffling among the Membersof the other two Divisions of the Court. (Rule 8, Sec. 3 [a] of theInternal Rules of the Supreme Court; emphasis su pplied.)

Unlike in the old rule where the ca se rem ains with the Division of the inhibiting

Justice, the amended rule now uniformly provides for

ponente on the assignment of a case t he case will be taken out of the Division to

which the inhibiting Member of this Court beong tembers of

the t wo other D ivisions.

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On 24 August 2011, the Court issued a Resolution that would give notice to the

parties t hat the main FASAP case h ad been transferred to the Second Division. In the

said Resolution, the Second Division NOTED the pleadings led by FASAP and PAL,

parties t o the case. The parties r eceived th e notice u nder the document heading of the

Second Division and under the name of the Clerk of Court of the sam e Division. The

notice of the Resolution was sent to PAL through its p rincipal counsel, the SyCip law

rm.

Hence, it is w rong for a ny of the co -counsel for PA L to assert that their r eceipt of

the 07 September 2011 Resolution of the Second Division was t he rst time that the

parties w ere apprised of the transfer of the ca se t o another D ivision. Under t he Rules

of Court, service u pon the p rincipal counsel of PAL is servi ce t o a ll the co -counsel:

Filing and service, dened. Filing is th e act of presenting the

pleading or other pa per t o th e clerk of court.Service is t he act of providing a party with a copy of the p leading

or paper concerned. If any party has appeared by counsel, serviceupon him shall be made upon his counsel or one of them, unlessservice upon the party himself is ordered by the court. Where onecounsel appears for several parties, he sh all only be en titled to one co pyof any paper served upon him by the opposite side. (Rule 13, Sec. 2, ofthe Rules of Court; emphasis su pplied)

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It is also important to emphasize that pa rties cannot complain about lack of

receipt of formal n otices that t heir ca ses are being transferred from one Division to

another, since th at is a matter of reorga nization entirely internal to the C ourt.

On 07 September 2011, a Second Division session was held. The Agenda,

Supplemental Agenda and Minutes of the Second Division session for that day reveal

the dispositions of the agen da items as d iscussed b y the Members of the Division. One

hundred forty-eight (148) agenda items were calendared that day, broken down as

follows: 96 judicial matters, 21 administrative matters a nd 31 administrative cases.

This is not an unusual volume for a i

in G. R. No. 178083 was o ne of the judicial matters tackled during the said Session of

the Second Division.

Two non-regular Members of the Division had earlier been designated by raffle

as re placements for the two regular Members who were on leave: (1) Justice Bersamin

(vice J ustice S ereno), and (2) Justice Mendoza ( vice J ustice B ienvenido L. Reyes). Most

of the cases for the day were acted upon by unsigned Resolutions, but ve si gnedDecisions/dispositive Resolutions were also promulgated. Among the unsigned

Resolutions that were promulgated was t he denial of PALs 2 nd MR in the main FASAP

case in G. R. No. 178083.

Justice Carpio (who had earlier inhibited, the reason gi

the office of the Member-in-Charge) was replaced by Justice Peralta. Note that

Justices Peralta and Bersamin became Members of the Second Division for thepurpose of resolving the main FASAP case not because they took part in the den ial of

the 1 st MR, but because they were replacements for a r egular Member of the Second

Division who had inhibited from the case an d for an other who was on leave.

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the identities of the chairperson and the members thereof; and (b) the

identity of the current ponente or Justice-in-charge of the case, an d

when and for what reason he or she was designated as ponente ; and

3. Requesting a copy of the Resolution rendered on the

2 nd MR, if an action had already been taken thereon.

On 16 September 2011, Atty. Mendoza sent a second letter ad dressed to the Clerk of

Court requesting copies o f any Special Orders o r si milar i ssuances t ransferring th ecase t o another division, and/or desi gnating members of the division which resolved

its 2 nd MR, in case a r esolution had already been rendered by the Court and in the

event that such resolution was issued by a different division.

A third letter from Atty. Mendoza ad dressed t o the Clerk of Court was r eceived by the

Court on 20 September 2011. Atty. Mendoza stated that he received a cop y of the 07

September 2011 Resolution issued by the S econd Division, notwithstanding that all

prior Court Resolutions h e received regarding the case h ad been issued by the Third

Division. He rei terated his req uest i n two earlier l etters t o the C ourt, asking for th e

date and time when the said Resolution was d eliberated u pon and a vote taken

thereon, as well as t he names of the Members of the Court who had participated in

the d eliberation and voted on the 0 7 September 2011 Resolution.

Atty. Mendoza sent a fourth letter dated 22 September 2011 addressed to the Clerk of

Court, suggesting that if some facts su bject of my inquiries a re n ot evident from the

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records of the ca se o r ar e n ot within your kn owledge, that you refer t he inquiries t o the

members of the Court who appear t o have pa rticipated in the issuance of the

Resolution of September 7, 2011, namely: Hon. Arturo D. Brion, Hon. Jose P. Perez,

Hon. Diosdado M. Peralta, Hon. Lucas P. Bersamin, and Hon. Jose C. Mendoza.

On 26 September 2011, upon request by Justice Brion, the Clerk of Court

issued the Vidal-Anama Memorandum for the members of the Second Division

regarding the inquiries con tained in Atty. Mendozas rst and second letters d ated 13

and 20 September 2011, respectively. According to J ustice Brion, as t he act ing

Chairperson of the Second Division that rendered the 07 September 2011 Resolution,

he decided to send a copy of the Vidal-Anama Memorandum only to those who had

participated in the issuance o f the Resolution. Neither S enior Associate J ustice

Carpio, the regular C hairperson of the Second Division, nor Ju stices S ereno and

Reyes, its other regular Members, received a cop y of this Memorandum at that time.

In the said Memorandum, which was signed by Atty. Felipa Anama on behalf of Atty.

Enriqueta Vidal, the legal and documentary b ases for al l the a ctions of the vari ousRaffle Committees were attached and discussed. These included the decisions of the

two raffle com mittees t hat oversaw the transfer of the ponencia , as a regular S econd

Division case, from Justice Ynares-Santiago to Justice Velasco and nally t o Justice

Brion. A reading of the Vidal-Anama Memorandum would lead to the conclusion that

the t wo transfers of ponencia were com pliant with the ap plicable ru les.

One parenthetical note. In the above Vidal-Anama Memorandum, the Raffle

Committee is qu oted as h aving relied on Administrative Order No. 84-2007 as b asis for

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raffling ou t the case f rom the Third Division to the First and the Second Divisions.

Apparently, the Vidal-Anama Memorandum refers to Administrative Order o

2007, as amended, i.e ., by the Resolution dated 03 August 2010 in A.M. No. 10-4-20-

SC. The implication of the latter R esolution on the a ssignment of the ca se t o JusticeBrion has b een discussed here earl ier.

On 28 September 2011, the regular Second Division NOTED the Letters dat ed 13

and 20 September 2011 of Atty. Mendoza t o Atty. Vidal, asking that his inquiry be

referred to the relevant Division members who took part in the 07 September 2011

Resolution. In response to an earlier su ggestion to just simply d irect t he D ivision Clerk

of Court to a nswer t he letters o f Atty. Mendoza, Justice B rion the ponente i nformed

those p resent that he n eeded to consult Chief Justice C orona on this m atter. There

was no suggestion from anyone, much less any agreement among the Justices

present, to refer the matter to the En Banc . Indeed, Justices S ereno and Reyes,

who were then present, were not full

As related by Justice Brion

among the Ju stices who participated in the deliberations of the 07 September 2011

Resolution n amely, Justices B rion, Peralta, Bersamin, Perez an d Mendoza to inform

them of the four l etters o f Atty. Mendoza and to ask for t heir inputs. According to him,

a cou ple more meetings were held to this effect, but there was n o unanimity on how to

specically respond to these letters.

According also to Justice Brion,

Justice Corona and Justices Brion, Per

recommendation to refer the matter to the En Banc an d to vacate the 07 September

2011 Resolution in the m eantime. Chief Justice Corona, who presided over the

meeting, was also furnished a copy of the Vidal-Anama Memorandum.

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On 04 October 2011, the following happened in the En Banc session:

1. In the Agenda distributed, the Clerk of Court endorsed

item no. 147 for i nclusion therein, referring th e letters of Atty. Mendoza

with respect to the main FASAP case to the Court En Banc. Instead of

being given its regular judicial docket number, G.R. No. 3

given a sep arate administrative matter number, A.M. No. 11-10-1-SC.

2. This separate administrative matter in the En Bancs

agenda, apparently raffled to Justice Mariano del Castillo on 03 October

2011, merited his recommendation to refer to ponente , meaning, to

Justice Brion, to whom the main FASAP case in G.R. No. 178083 was

assigned.

3. Without waiting for Justice Brion to respond to therecommendation of referral, the Chief Justice, who was p residing,

informed the Court that the 07 September 2011 Resolution of the

Second Division must be recal led, because i t had a lot of serious

problems. Justice B rion, the ponente of the sa id Resolution, kept quiet.

4. Despite the fact that the matter was characterized by the

Chief Justice as a very sen sitive matter and that the Resolution had a

lot of serious p roblems, copies o f the four l etters of Atty. Mendoza were

not furnished the rest of the Court.

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5. Neither did the Chief Justice inform the rest of the Court

that the Clerk of Court, through her Deputy Felipa B. Anama, had

issued her n arration of facts via the Vidal-Anama Memorandum, which

detailed the raffle process undertaken with respect to the main FASAPcase, and which tended to prove the r egularity of the a ssignment of the

case f rom Justice Velasco to Justice B rion, with its ci tation of the legal

bases for the actions of the various Raffle Committees.

6. The rest of the Court assented, through their silence, to

the recall of the 07 September 2011 Resolution of the Second Division.

7. There was no formal referral of the ca se b y way of written

resolution from the Second Division to the En Banc, but only an

assumption and cognizance of the Mendoza letters by t he En Banc.

The Court En Banc thus issued the above-quoted 04 October 2011 Resolution in the

separate a dministrative m atter do cketed as A.M. No. 11-10-1-SC (Re: Letters o f Atty.

Estelito P. Mendoza re: G.R. No. 178083 Flight Attendants a nd Stewards Association

of the P hilippines v . Philippine A irlines, Inc., Patria Chiong, et al. ) accepting and taking

cognizance of the ab ove-cited case; recalling the 07 September 2011 Resolution of the

Second Division on the main FASAP case; and ordering the re-raffle of the sam e case

to a new Member-in-Charge. At this p oint, four Members inhibited themselves from the

main FASAP case: Justices C arpio, Velasco, Leonardo-De Castro, and Del Castillo. As

earlier stated, the main FASAP case was re-raffled to Ju stice Sereno, as n ew Member-

in-Charge.

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Under the Internal Rules of the Supreme Court, as amended, the Court En Banc

cannot just take co gnizance o f a case a ssigned to a Division. The initiative of

transferring the case f rom a Division to the En Banc must always come from the

Division itself. Rules 2 and 15 of the Internal Rules of the Supreme Court provide:

Division cases. All cases and matters under the jurisdiction ofthe Court not otherwise p rovided for by l aw, by the Rules of Court or bythese Internal Rules to be cognizable by the Court en banc shall becognizable by the Divisions. (Rule 2, Section 4, Internal Rules of theSupreme Court)

Actions on Cases Referred to the Court En Banc . The re ferral of

a Division case to the Court en banc shall be subject to the followingrules:

(a) the resolution of a Division denying a motion forreferral to the Court en banc sh all be nal and shall not beappealable to the Court en banc;

(b) the Court en banc may, in the absence ofsufficiently important reasons, decline t o take cogn izance o fa case ref erred to it and return the ca se t o th e D ivision; and

(c) No motion for recon sideration of a resolution ofthe Court en banc declining cognizance of a referral by aDivision shall be en tertained. (Rule 2, Section 11, InternalRules of the Supreme Court)

Second Motion for R econsideration. The Court shall not entertaina second motion for r econsideration, and any exception to this ru le ca nonly be granted in the higher interest of justice by the Court en bancupon a vote of at least two-thirds of its actual membership. In theDivision, a vote of three Members shall be required to elevate a

second motion for reconsideration to the Courten banc

. (Rule 15,Section 3, Internal Rules of the Supreme Court)

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While it is true that

substitutes objected to the discussion, several important observations m ust be made

here:

1. When the matter of the Mendoza letters was calendared for agenda

in the En Banc, not all Members of the Court including cert ain regular

members of the Second Division, such as J ustices Carpio, Sereno an d

Reyes w ere su fficiently a lerted to the si gnicance o f their con tents.

2. Except for Chief Justice Corona and those who took part in the 07September 2011 Resolution, neither the Members of the Second Division,

nor any of the remaining Members of the Court were furnished a cop y of

the Vidal-Anama Memorandum before or during the En Banc Session,

which would have clearly shown the regularity of the assignment of

case t o J ustice Brion as a regular S econd Division matter.

3. The impression given to the majority of the Court was that

something deeply irregular had transpired, something akin to not vesting

Justice Brion with authority to act on the main FASAP case such ta

to protect the Court, the 07 September 2011 Resolution must be recalled

and the case taken cognizance of as an En Banc matter.

Given that t he factual bases for t he impressions of the m ajority of the Court do n ot

exist, and that the resulting con clusion that allowed them to accede to the 04 October

2011 Resolution on the instant administrative m atter can no longer be su stained, I

submit that no su ch irregularity in the a pplication of the ru les o ccurred. Therefore,

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the main FASAP case in G.R. No. 178083 should be returned to the Second Division as

a regular case, and the recalled 07 September 2011 Resolution be reinstated and duly

executed under the existing laws an d rules.

While it is true that

interest of sound and efficient administration of justice, under Rule 1 , Section 4 of its

Internal Rules, the interest of justice i n this ca se req uires that the ru les b e

appropriately followed. The 04 October 2011 Resolution to transfer the case f rom the

Second Division to the En Banc was a pparently pursuant to the desire to observe the

rules, not suspend them. The transfer of the case t o the Second Division having been

proven to be regularly made, there was n o need for the su spension of any ru le.

The following are therefore ve

First , the assi gnment of the case t o J ustice Brion as ponente and its t ransfer t o the

regular S econd Division to which he belongs com plies w ith all the ap plicable ru les.

Second , there was n o proper referral of the main FASAP case f rom the Second Division

to the Court En Banc; hence, the latter did not act properly in taking cognizance of the

case u nder the 04 October 2011 Resolution.

No Division of the Court is a b ody inferior to the Court En Banc; and each Division

sits ver itably as t he Court En Banc itself. The Court En Banc is n ot an appellate Court

to which decisions or r esolutions of a Division may b e a ppealed. Before a j udgment or

resolution on a case becom es nal and executory, the Court En Banc may accept a

referra l by the D ivision for sufficiently important reasons . Otherwise, the case w ould

be returned to the Division

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the Court En Banc must rst be agreed upon and made by t he Division and formal

notice t hereof should then be sen t to the Clerk of Court. The Clerk of Court would

then calendar t he referral in the Agenda for con sideration of the Court En Banc. In

this case, no su ch formal notice of a referral was m ade by t he regular S econd Division

or sent to the Clerk of Court En Banc to elevate the m ain FASAP case for the

consideration of the Court En Banc.

In fact, the Internal Rules o f the S upreme Court are exp licit on referring ca ses t o th e

Court En Banc in instances in which the m atter to be considered is a case t hat has

already been decided by the Division and is al ready the su bject of a seco nd motion for

reconsideration, similar t o th e ci rcumstance i n the ca se o f PAL. In a Division, a vote o f

three Members sh all be required to elevate a seco nd motion for r econsideration to the

Court En Banc.

Applying this rule to PALs 2 nd MR in the main FASAP case, no decision or vote by at

least three Members of the regular S econd Division was ever made to refer the case t o

the Court En Banc. Those who informally met with the Chief Justice an d decided to

raise the main FASAP case to the Court En Banc without any formal written notice

thereof committed a seri ous lapse. The determination of sufficiently important reasons

to refer t he ca se, which was already th e su bject of a 2 nd motion for recon sideration,

was within the purview of the regulaembers o

those who merely substituted for them in the 07 September 2011 Resolution.

Regardless o f the va lidity of that R esolution, the ref erral to the C ourt En Banc was a

separate an d distinct matter that should have been decided by the regular Members of

the Second Division. Hence, Justices S ereno and Reyes, as re gular m embers of the

Second Division who du ring their absence in the 07 September 2011 Session of the

Second Division were su bstituted by J ustices B ersamin and Mendoza, respectively

should have been included in the discussion on the referral of the matter to the Court

En Banc.

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For t he Court to take co gnizance of the Mendoza letters as a separate ad ministrative

matter independent from the judicial case i n G.R. No. 178083 in order t o justify the

recall of the Second Divisions 0 7 September 2011 Resolution is u nacceptable because

it is p lainly a circumvention of the a bove-discussed rules o n the p roper r eferral of a

case f rom a Division to the En Banc. Rather than formally ling a motion for t he

referral of their case t o the En Banc, any party-litigant may n ow, under t he m ajoritys

ruling, subscribe to Atty. Mendozas co urse of action and simply write a separate letter

to the Clerk of Court or an y of the justices, which can now be t reated as a n

independent administrative matter so that the Court En Banc may u nilaterally

appropriate or take away a ca se from the Division. This n ew rule being egregi ously

created in this ca se b y the m ajority will open the oodgates f or all disgruntled litigantsor t heir cou nsel to appeal unfavorable nal judgments o f the Courts t hree D ivisions t o

the En Banc.

Absent a formal referral by

articulation of sufficiently important reasons, the Court En Banc can not properly take

cognizance of the m ain FASAP case; nor can it oust, on its own, the au thority of the

Second Division over t hat case.

Thus, I maintain that the Court En Banc should recall i

Resolution and return this case t o the Second Division for reinstatement and

nality of the 07 September 2011 Resolution.

It must be further noted that the decisions of the two raffle com mittees h eaded by

Chief Justice Corona a nd by retired Justice Carpio-Morales, which led to the

assignment of this case from Justice Ynares-Santiago to J ustice Velasco and

eventually to J ustice B rion, were con curred in by re tired Justices C hico-Nazario a nd

Nachura and by incumbent Justices Velasco and Brion.

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Signicantly also, all three m ain dispositions of this cas e in favor of FASAP the 22

July 2008 Decision, the 02 October 2009 Resolut

September 2011 Resolution denying PALs 2 nd MR were uniformly unanimous, and

concurred in by a total of ten (10) justices, retired a nd incumbent:

22 July 2008

Decision

02 October 2009

Resolution

07 September 2011

Resolution

1. Ynares-Santiago( ponente)

2. Austria-Martinez

3. Chico-Nazario

4. Nachura

5. Leonardo-de Castro

1. Ynares-Santiago( ponente)

2. Chico-Nazario

3. Nachura

4. Peralta

5. Bersamin

1. Brion ( ponente)

2. Peralta

3. Bersamin

4. Perez

5. Mendoza

III

Pleadings Submitted After Atty. MendozasLetters to th e Clerk of Court

After the four Mendoza letters wer

FASAP case led three si gnicant pleadings: (a) PALs Motion to Vacate dated 03

October 2011; (b) FASAPs Motion for Reconsideration dated 17 October 2011; and (c)PALs Comment on the said Motion for Reconsideration.

A. PALs Motion to Vacate dated 03 October

2011

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It appears that a d ay before the issuance of the Court En Bancs 04 October

2011 Resolution recalling the Second Divisions 07 September 2011 Resolution, or at

11:31 a.m. of 03 October 2011, the Court received a copy of PALs Motion to Vacate

(Resolution dated September 7, 2011) [the Motion to Vacate]. However, the Motion to

Vacate was received only on 04 October 2011 at 3:00 p.m., y

Records Office, Judgment Division.

In the Motion to Vacate, PAL argued that the 07 September 2011 Resolution of

the Second Division denying its 2 nd MR should be vacated on the following grounds:

A.1. The 07 September 2011 Resolution was issued in violation of

Sections 4 and 13, Article VIII of the Constitution.

A.2. It was issued in violation of the Internal Rules of the Supreme

Court.

A.1. PALs F irst Ground in the Motion to Vacate

Quoting portions of the Records of the Constitutional Commission dated 14

July 1986, PAL argued that the intention of

heard by the d ivision to be decided/resolved with the con currence of a m ajority of the

Members who actually took part in the deliberations on the issues in the case an d

voted thereon and that the conclusion shal

case is assigned to a Member for the writing of the opinion of the Court, with thephrase in consultation having a settled meaning a s after du e d eliberation.

PAL concluded that the constitutional requirement may not have been met

because those who participated in the

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Justices Brion, Mendoza, and Perez had never taken par

matter in connection with the instant case, while J ustice Bersamin was d esignated on

06 September 2011, or only one day before the 07 September 2011 Resolution was

voted upon.

Effectively, al though PAL was not art iculating this thought exp licitly, it was

arguing that, under the Constitution, only Justices Peralta and Bersamin could have

taken part in any deliberation on its 2 nd MR. It was a lso eff ectively claiming that a one-

day notice to Justice Bersamin of his designation as a replacement Member of the

Second Division was not enough notice for h im to take part in the deliberation on the

2 nd MR, even though he had earlier voted to deny the 1 st MR in the 02 October 2009

Resolution.

A.2. PALs S econd Ground in the Motion to Vacate.

PAL insisted that its motion should have been resolved by a Special Third

Division, based on A. M. No. 99-8-09-SC dated 17 November 2009 (Amended Rules on

who shall resolve motions for reconsiderat

cases assigned to the division of the court). It argued that al though another Court

issuance, A.M. No. 99-8-09-SC, as a mended (Rules on who shall Resolve Motions for

Reconsideration in Cases Assigned to the Divisions of the Court, 15 February 2 000),

provides that a special division need not be constituted to resolve motions for

reconsideration of decisions or r esolutions t hat have a lready been denied with nality,

this latter r ule would not apply to its ca se. PAL contended that w hen its 2 nd MR was

allowed by the Third Division in the 20 January 2010 Resolution, the Courts 02

October 2009 Resolution denying the 1 st MR with nality was t hereby suspended.

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Although PAL was not explicitly saying so, it was in effect argui

led a 2 nd MR on 03 November 2009 after the denial of its 1 st MR by the 02 October

2009 Resolution, the rules required that (1) a Special Th ird Division consisting of

Justices Chico-Nazario, Nachura, Peralta and Bersamin, with an additi

Member, should have been constituted to take cognizance of t he case; and (2) the

ponencia should have been raffled only to these rst four Members who had actually

taken part in the deliberation on the 1 st MR. Thus, its Motion for Reconsideration

should not have been raffled off to J ustice Velasco.

PAL was anchoring its argument on the eventual admission of its 2 nd MR, an

action initiated by Justice Velasco a fter the case w as raffl ed to him on 11 November

2009. It was saying that, by admitting the 2 nd MR, the Court did not consider the said

motion for r econsideration is t o have b een denied with nality, hence, the a ssignment

of the case to Justice Velasco was erroneous, because he was not among the

remaining four Ju stices who had concurred in the Decision or Resolution of the main

FASAP case. But how could PAL argue that the assignment of the case t o Justice

Velasco was wrong and at the same time claim benet from hi

Charge?

At the time when the Raffle Committee met on 11 November 2009 for the

purpose, among others, of making a decision on how to dispose of PALs 2 nd MR, the

legal status of the main FASAP case was unambiguous i ts 1 st MR had been denied

with nality. There was no room to read into

Raffle Committee cou ld have taken cognizance of only that status; it was b ereft of any

authority to dwell on any other future p ossibility, including th e a dmission of PALs 2 nd

MR admitted a year later when J ustice Velasco was designated as Member-in-Charge.

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C. PALs Comment on FASAPs Motion forReconsideration dated 17 October 2011

In its Comment on FASAPs Motion for Reconsideration, PAL argued that the

recall made by the Court En Banc was proper and in keeping with due process,

because the 07 September 2011 Resolution of the Second Division violated the

Constitution and the I nternal Rules of the Supreme Court.

PAL also contended that the Court had the power to recall its own orders an d

resolutions and to take cognizance, motu proprio , of cases being heard by any of its

Divisions, as it had done in the past. It cited several instances i n which the Court En

Banc h ad re-submitted and re-deliberated on cases an d pointed to Rule 135, Section 5

of the Rules o f Court on the inherent powers of the court, including (g) [t]o amend

and control its process and orders so as t o make them more conformable to law and

justice.

Finally, PAL claimed that t he four Mendoza letters were not ex parte third

motions for reconsiderations, because n either t he merits of the main FASAP case i n

G.R. No. 178083 nor any prayer for reconsideration of the 07 September 2011

Resolution was d iscussed th erein.

PAL prayed t hat: (1) FASAPs Motion for Reconsideration dated 17 October 2011 be

denied; and (2) that the Court En Banc proceed w ith the disposition of the main

FASAP case in G.R. No. 178083.

IVMain Disposition of the Case

A. The Sufficiency of the Factual Findings inthe Case

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Considering that the assignment of the main FASAP case in G. R. No. 178083

was perfectly regular, the 4 Oct

the 07 September 2011 Resolution of the Second Division has been found to be

without of any legal basis. Hence,

vacate the 04 October 2011 Resolution and to return the main FASAP case to

Second Division for p roper act ion.

I vote t o simply NOTE the four Mendoza letters t hat have beco me the su bject of the

instant administrative m atter (A.M. No. 11-10-1-SC). Atty. Mendoza, counsel for PA L,

should be guided by the ndings in this Opinion in order to nd some of the an swers

to the q uestions rai sed in his l etters t o the C lerk o f Court. His va rious requ ests t o the

Clerk of Court for ( a) copies o f Special Orders r egarding th e reorgan ization of the

various Divisions relative

official assignments of the ponentes as well as a dditional Members to the vari ous

Divisions to which the sai d case w as a ssigned; and (c) information on dates an d times

when deliberations took place, should

for PA L is e ntitled to the results of the raffle of the main FASAP case under the

rules, this i s n ot a carte b lanche au thority to demand the sm allest minutiae of the

Courts p rocesses in relation thereto, especially since this c ase h as a lready b een

decided with nality. If as t he m ajority in the Decision seek to imply t hat such detailed

requests sh ould be en tertained in all cases b y this Court, an unduly oppressive

burden will be imposed that would prevent

constitutional duty to resolve with reasonable d ispatch the m any other cases p ending

before it.

It is important to note that any of the ve M embers of the Second Division who

voted for the 07 September 2011 Resolution mely

Bersamin, Perez and Mendoza cou ld have easi ly dissented therefrom, in keeping with

the practice ob served i n this Court, but none of them dissented. Deliberations took

place not only on the main FASAP case in G.R. No. 178083, but also on many other

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cases ca lendared f or t he day. Justices B rion, Peralta, Bersamin, Perez an d Mendoza,

as regular or ad ditional Members o f the S econd Division, in fact si gned several other

Decisions an d Resolutions of the Second Division of this Court promulgated on 07

September 20 11, as l isted below. If any of them felt that they co uld not participate in

the deliberations in the main FASAP case i n the manner that the Constitution

required them to, they cou ld have ea sily done so b y either requesting deferment of the

discussion to give t hem time to re ect on the d raft resolution, or by writing their own

Dissent from the unsigned 07 September 2011 Resolution. None of them did and,

thus, the said Resolution remains on record as a u nanimous Decision of the Second

Division.

In assailing the com position of the S econd Division during its 0 7 September

2011 Session, which acted on the main FASAP case, Atty. Mendoza was effectively

placing seri ous d oubts on the effectivity of all actions of the Second Division on the

147 other items on that days Agenda, including the signed Decisions an d Resolution

above-cited. Giving in to his assert ions would wreak havoc on the Courts p rocedures

and allow litigants t o incessantly question the va lidity of orders b ased on mere

suspicions a bout the p ropriety of the co mposition of a Division of the C ourt.

The 07 September 2011 Resolution was far from transgressing the

constitutional r equirements for the valid adoption of a decision. Indeed, while the

Constitution requires a Division action to have the concurrence of at l east t hree

Justices thereof, the Decision AP

unanimously concurred in by all the justices who acted on the case. The 22 July 2008

Decision of the Third Division in favor of FASAP, penned by Justice Ynares-Santiago,

was unanimously concurred in by Justices Austria-Martinez

and Leonardo-De Castro. PALs 1 st MR of the Decision was d enied with nality in the

signed 02 October 2009 Resolution by the Special Third Division, penned once again

by Justice Ynares-Santiago and unanimously concurred in by

Nachura, Peralta and Bersamin. Thereafter, the 07 September 2011 Resolution of the

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Second Division denying PALs 2 nd MR, penned by Justice Brion, was concurred in by

Justices Peralta, Perez, emin endoza.

07 September 2011 Resolution of the Court has been shared by ten (10) Justices of

this C ourt throughout the years.

B. The Validity of the Raffle of the mainFASAP Case

In the Decision, the majority, led by Justice Brion as ponente , explained the

consequences of the 20 January 2010 Resolution, which accepted the review prayed

for by PAL in its 2 nd MR. To my respected colleagues, the said Resolution, which

opened the main FASAP case ent irely anew for review on the merits, should have been

raffled off to the remaining Members of the Division, who participated in the

deliberations a nd previous ru lings, specically Justices P eralta or B ersamin. However,

I must register m y dissent to this p osition since it glosses o ver factual circumstances

attendant in this ca se an d makes h airline distinctions in the ru les t o come u p with a

strained conclusion to justify the recall of the 07 September 20 11 Resolution, penned

by no less than Justice Brion,

Justice Brion and his subsequent ruling in 07 September 2011 Resolution are

reasonable an d consistent with our rules.

First , the Court was tasked to resolve the 2 nd MR led by PAL, which was

undoubtedly a prohibited pleading and was already in contravention of the Courts

express ru ling against entertaining any further pleadings in the main FASAP case.

Hence, when the 2 nd MR was led on 03 November 2009, the status of the case was

one where a 1 st MR had already been led and subsequently denied with nality .

Since J ustice Ynares S antiago had already retired and the then prevailing rules on

resolving motions for reconsideration had no application for motions for

reconsiderations of decisions or resolutions which were already denied with nality,

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the Raffle Committee correctly treated the 2 nd MR as an ordinary matter to be r affled

to the now regular m embers of the Third Division, which was t he Division that issued

the 22 July 2008 Decision and 02 October 2009 Resolution. The Raffle Committee

found no need to forward the matter to Justice Martin S. Villarama, Jr., who

succeeded Justice Ynares Santiago and inherited her caseload, since the main FASAP

case was already denied with nality.

There can be no arguing with the majority, when it found no fault in the

position taken by the Clerk of Court, as explained in the Vidal-Anama Memorandum.

It would indeed be unreasonable for the Court to require the Clerk to divine or

speculate on a future and favorable resolution of PALs 2 nd MR and consequently,

proceed to raffle the case t o the original Members of the Division who participated and

concurred in the Decision or d enial of the 1 st MR. Hence, as t he majority found, there

was nothing erroneous with respect to te e nd MR was led

and that t he a ssignment to Justice Velasco was still proper.

I must however make a m arked divergence with the majority with respect to the

actions of the Clerk of Court and the Raffle Committee after the issuance of the 20

January 2010 Resolution, penned by Justice Velasco,

le the 2 nd MR and thus, give new life to the main FASAP case. As the majority

explained, throwing the ca se w ide open for an other r eview warrants its rem oval from

Justice Velascos caseload and the duct

or Bersamin, who are the remaining members of the Court that decided the 02

October 2009 Resolution denying PALs 1 st MR. However, the m ajoritys p roposition is

not only riddled with operational inefficiency, but likewise o pens a ll nal decisions o f

any Division to secon d-guessing by Members of the two other Divisions.

It is incongruent, if not burdensome, for a Member of this Court, acting in a

Division, to revive a case that h as been denied with nality on a 2 nd MR and then, to

throw that same motion back to the other Justices for them to review anew the

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substantial merits of the case, which they have already decided. As the new Member-

in-Charge of the 2 nd MR of the main FASAP case, Justice Velasco together with the

Members of the then reorganized Third Division found some cause for review of the

main FASAP case, when it issued the 20 January 2010 Resolution. Presumably, they

reviewed the two unanimously supported ponencias of Justice Ynares-Santiago and

found issues in the case w orth looking an ew. Having resolved to re-open the case f or a

third review, the burden should have been on Justice Velasco, as Member-in-Charge,

and the other Members of the reorganized Third Division to hear t he parties on the 2 nd

MR and resolve the m atter on a nal decision.

For the Court to recognize the action of the Third Division to re-open a nal

decision and suddenly throw back the responsibility of deciding the 2 nd MR to the

original Members who decided the main FASAP case is to second-guess decisions of

the various Divisions of this Court an d to allow a peculiar ci rcumvention of our r ule

on immutability of judgments. The unacceptable contradiction lies in the fact t hat

based on the ponencia of Justice Brion, a Member of this Court who does not

intimately know the facts a nd merits of the ca se, can be given authority to re- open a

nal decision on 2 nd MR and yet be precluded from holding on to the case t o decide its

substantial merits. Worse, those Members, who had in fact participated in the

deliberations of the Decision and Resolution of the 1 st MR, will now be compelled to

review their own ndings based on the recommendation of Member, who instigated the

reopening, but will not participate in the sa me revi ew.

The original Members of Third Division, which issued the 22 July 2008

Decision and 02 October 2009 Resolution, including Justices Peralta and Bersamin,

and the ve other Justices, have already made known their un animous stand on the

main FASAP case by their votes thereon. PAL cannot be allowed, by merely the

retirement of Justice Ynares S antiago, to question the u nfavorable rulings of a Courts

Division on a 2 nd MR. The principle of immutability of nal judgment is better

protected and upheld by disallowing review of a nal decision by a Division on a

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reconsideration or cl arication of a decision or o f a signed resolution andall other m otions and incidents su bsequently led in the case sh all beacted upon by the ponente and the other Members of the Division whoparticipated in the ren dition of the d ecision or si gned resolution.

If the ponente has retired, is no longer a Member of the Court,is disqualied, or ha s inhibited himself or herself from acting on themotion for reconsideration or clarication, he or she shall bereplaced through raffle by a new ponente who shall be chosen amongthe new Members of the Division who participated in the renditionof the decision or signed resolution and who concurred therein . Ifonly one Member of the Court who participated and concurred in therendition of the d ecision or si gned resolution remains, he o r sh e sh all bedesignated a s t he new ponente.

If a Member (not the ponente) of the Division which rendered the

decision or si gned resolution has retired, is no longer a Member of theCourt, is d isqualied, or h as inhibited himself or h erself from acting onthe m otion for recon sideration or cl arication, he o r sh e sh all be rep lacedthrough raffle by a replacement Member who shall be chosen from theother D ivisions until a new Justice is appointed as replacement for t heretired Justice. Upon the appointment of a new Justice, he or sh e sh allreplace the designated Justice as replacement Member of the SpecialDivision.

Any vacancy or vacancies in the Special Division shall be lled byraffle from among the other Members of the Court to constitute a S pecial

Division of ve (5) Members.If the ponente and all the Members of the Division that rendered

the Decision or signed Resolution are no longer Members of t he Court,the case shall be raffled to any Member of the Court and the motion shall

be acted upon by him or her with the participation of the bersof the Division to which he or sh e b elongs.

If there are pleadings, motions or i ncidents subsequent to thedenial of the motion for reconsideration or clarication, the caseshall be acted upon by the ponente on record with the participation

of the other M embers of the Division to which he or she belongs atthe time said pleading, motion or incident is to be taken up by theCourt . (Emphasis supplied.)

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Briey stated, the general rule is that t he ponente of the case an d the other

Members of the Division who participated in the ren dition of the decision or signed

resolution shall act u pon motions for reconsideration or clarication. If the ponente

had already ret ired, is n o longer a m ember, is d isqualied or h as inhibited himself orherself, he or sh e will be replaced by the Members of the Division who participated in

the ren dition of the d ecision or si gned resolution and who co ncurred therein. This ru le

is sp ecic only to a rst motion for reconsideration , which is permitted under the

Rules of Court.

However, a different rule obtains for pleadings, motions or incidents

subsequent to the denial of t he motion for reconsideration or clarication ,including in this ca se, a 2 nd MR, which is a lready a prohibited pleading. The ponente

on record shall still continue to act on these motions, pleadings or i ncidents a fter t he

denial of the m otion for recon sideration, but with the p articipation of the Division to

which he or she belongs at the time

by the Court, and not by the m embers of the original Division who participated and

concurred in the ren dition of the d ecision or si gned resolution. The p rinciple th erefore

is that af ter t he resolution of the 1st

MR, all incidents su bsequent thereto shall stay with the ponente , and if he or sh e re tires, with the D ivision that deci ded the ca se a nd

resolved the 1 st MR.

Hence, the gen eral rule relied by the majority cannot be applied in the instant

case b ecause what is being res olved is n ot a 1 st MR (which was in fact already denied

with nality) but a 2 nd MR. Being a 2 nd MR subsequent to the denial of the 1 st motion

for reconsideration, the case was correctly raffled to Justice Velasco, as a regularMember of the Third Division, at the time the 2 nd MR was led and taken up.

Neither can the inhibition of Ju stice Velasco result in the return of the

resolution of the 2 nd MR to those Members of the Court who participated and

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concurred in the rendition of the decision or signed resolution in the main FASAP

case. A fter J ustice Velasco resolved to accept t he 2 nd MR and then inhibited himself

due to close p ersonal relationship, the Raffle Committee a pplied the regu lar ru les on

inhibition and substitutions of members of a Division. Hence, there was nothing

irregular or out of the ordinary when the case w as su bsequently raffled from Justice

Velasco, who had by then moved to the First

the other two Divisions (namely the Third Division, and subsequently the Second

Division, after th e re-organization):

The case is presently assigned to Justice Velasco, Jr. who inhibitedfrom the ca se d ue t o close rel ation to one of the p arties.

Following the pertinent p rovisions of Administrative Circular No.84-2007, the case must be re-raffled among the Members of the Secondand Third Divisions.

The distinctions in applying the rules on resolving 1 st motions for

reconsideration and the ru les on inhibition between a nominal ponente and a Member-

in-Charge are illusory in this case. After Justice Velasco, as Member-in-Charge,

recommended that PALs 2 nd MR be given due course, nothing changed the fact that

the 2 nd MR continues to be a motion subsequent to the denial of the 1 st MR . Under

our Internal Rules, all motions, pleadings or i ncidents su bsequent to the d enial of the

rst motion for r econsideration or cl arication shall be acted upon by the ponente on

record. However, since J ustice Ynares S antiago had already ret ired, these su bsequent

motions, pleadings or i ncidents in the main FASAP case will remain with the Third

Division which resolved the 1 st MR, but will now be raffled off as an ordinary case

among that Divisions present Members, in this instance to Justice Velasco. When

Justice Velasco recused himself afterwards on 17 January 2011, the 2 nd MR

nevertheless con tinues t o be t reated as a motion subsequent to the denial of a 1 st

MR . Much like any ordinary case, the Courts regular rules arising from a valid

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inhibition of a Justice now govern, and the special rules for resol ution of a 1 st MR in

case of the retirement of the ponente still do not ap ply. Hence, following the regular

rules for inhibition and substitution, the 2 nd MR was properly re-raffled out of the

hands of Justice Velasco to the Members of the two other Divisions, in this ca se to Justice Brion of the Third Divi

organization. This i s n ot a simplistic view of the ru les o f this C ourt to the m ain FASAP

case b ut a direct, proper an d appropriate a pplication thereof.

Finally , the supposed exigencies, which compelled the recall of t he 07

September 20 11 Resolution, penned by Justice Brion himself, are innitesimally and

overwhelmingly insufficient to retract a su bstantial ruling by the Second Division on

PALs 2 nd MR.

That the 07 September 2011 Resolution would lapse into nality after the 15 th

day, or on 04 October 20 11, was not a compelling reason to recal l it. At that point, the

main FASAP case had already been decided with nality by the 02 October 2009

Resolution which denied the 1 st MR and PAL did not have an y realistic expectation that

its 2 nd MR would be given any more judicial consideration. In fact, the recal led 07

September 20 11 reiterated the substantial ndings of Third Division, as penned by

Justice Ynares Santiago, and ultimately deni nd MR. In hindsight, the much

underscored time con straint was not as shocking to the judicial sense as t o warrant a

motu proprio recall by the En Banc of the 07 September 2011 Resolution of the Second

Division, because the case had already been decided with nality since 02 October

2009 and was o n its t hird review.

In any case, the con cerns raised by the majority regarding the proper raffling of

the main FASAP case (albeit properly executed by the Raffle Committee) could have

been raised by the party concerned and was

letters of Atty. Mendoza a s well as in the Motion to Vacate led by PAL. There was n o

need for t he Court En Banc to act with haste prior to the lapse of the 15-day period to

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move for reconsideration because t he ca se was already denied with nality twice over

(by 02 October 2009 and 07 September 2011 Resolutions). The recall of the 07

September 2011 Resolution by the Second Division was unduly precipitous and done

without proper disclosure to all Members of

surrounding the issues.

The majoritys emphasis on the fear that the Court would be accused of ip-

opping if the 07 September 2011 Resolution be recalled on the ground of lack of

jurisdiction of the Second Division after t he lapse of the period is baseless. This

concern erroneously assumes that a ruling made by one of the Divisions can be

questioned based on the ground that another Division of this Court has purportedly better jurisdiction over

Banc itself. The Divisions of the Court are n ot inferior b odies t o the Court En Banc;

neither are t hey independent tribunals, whose d ecisions can be a ppealed on a 2 nd MR

to the o ther t wo d ivisions.

It is a xiomatic th at jurisdiction once acquired is not lost b ut continues until

the ca se is nally terminated. The jurisdiction of a court depends upon the st ate of

facts existing at t he time it is invoked, and if the jurisdiction once attaches to the

person and subject m atter of t he litigation, the subsequent happening of events,

although they are of such a character as would have prevented jurisdiction from

attaching in the rst instance, will not op erate t o oust jurisdiction already a ttached. In

Mercado v. CA , the Court even went so far as t o say t hat errors committed by the cou rt

in the ex ercise of its j urisdiction will not d eprive i t of the s ame:

Now, jurisdiction, once acquired, is not lost by any error in theexercise thereof that m ight su bsequently be committed by the court.

Where there is jurisdiction over the person and the subject matterdecision of al l other qu estions arising in the case is but an exercise ofthat jurisdiction. And when a court exercises its jurisdiction, an errorcommitted while engaged in that exercise does not deprive it of the

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Indeed, the recall of the 07 September 2011 Resolution produced the very effect

or p erception that J ustice Brion, speaking for t he majority, wanted to avoid ip-

opping on cases d ecided with nality on account of a p rohibited 2 nd MR and personal

correspondences by a partys cou nsel. There can be n o su rer indication of ip-opping

than the subsequent and sudden denial of the petition in the main FASAP case on a

2 nd MR, despite th e grant of the petition in three rulings by at least ten justices (22

July 2008 Decision, 02 October 2009 Resolution and the

Resolution).

The view of the majority that the recall of

not con stitute a reversal of the su bstantial issues is a false view of the eff ects of such

an action. This a rgument ignores t he fact t hat t he su bstantial merits of the ca se i s yet

again opened for review and the case reverts back to its st atus a fter t he 20 January

2010 Resolution penned by Justice Velasco, which is t he gran t of the m otion for leave

to le the 2 nd MR. Yet, even Justice Brion in the recalled 07 September 2011

Resolution asserted that the issues rai sed by PAL in the 2 nd MR have already been

discussed and settled by the Court in the July 22, 2008 Decision. It is so odd that

this Court would open the main FASAP case for a fourth review by either Ju stices

Peralta or B ersamin, when no new or earth-shattering argument has b een offered that

has n ot been taken up in the past that would warrant a reversal of the undisputed

and repeatedly reiterated nding o f this C ourt that PAL was g uilty o f illegal dismissal.

Finally, the u nfounded allegations b y PAL of the m ishandling of the raffl e of the

case (albeit erroneous) which supported a review of the su bstantial merits of the m ain

FASAP case cl early compelled discussion of the a dministrative matters a nd operations

of this C ourt. Contrary t o the insinuation that t his p ossibly violates th e 1 4 February

2011 Resolution of this C ourt on its internal deliberations, these m atters are d ecidedly

outside the province of judicial privilege, since it t reats o f issues not w ith respect t o

internal deliberations of the merits of the case, but on the procedural and

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I also nd that t he cl aim of violation by th e C ourt of the C onstitution and the Internal

Rules o f the S upreme C ourt argued by Philippine Airlines, Inc., in its Motion to Vacate

dated 03 October 2011 and in its Comment dated 03 November 2011 to be WITHOUT

ANY MERIT . Hence, the sa id Motion to Vacate led by Philippine Airlines, Inc., (PAL)in G. R. No. 178083 should be DENIED .

The letters of Atty.

16, 20 and 22, all of September 20 11 should simply be NOTED . Hence, I submit that

the Court should DENY the requ ests o f Atty. Mendoza in the a foresa id letters f or

further i nformation, as st ated therein, from the Clerk o f Court.

MARIA LOURDES P. A. SERENO Associate Justice

dissenting opinion.j.sereno.in re letters of atty. mendoza.docx

Documents

Transcript of dissenting opinion.j.sereno.in re letters of atty. mendoza.docx