Upholding the Rule of Law or the Rule of Men? (on the SC recall of its FASAP decision)

Upholding the Rule of Law or the Rule of Men? (on the SC recall of its FASAP decision)

Legal Notes of Kaka J. Bag-ao

AKBAYAN Representative

          It has been said that the Supreme Court is the last bulwark of constitutional rights and liberties. But, what happens when the Supreme Court itself transgresses these very rights that it is duty-bound to protect?

The Supreme Court is vested with the power to protect the Constitutionally guaranteed rights of the citizens and provide a redress of wrongs for violations of such rights.  However, the recent decision of the Supreme Court to recall the final and executory judgment in the case between the Flight Attendants and Stewards Association of the Philippines (FASAP) and the Philippine Airlines (PAL) has placed the integrity of the High Court in question.


Dissecting the FASAP Case 

The FASAP case has been ongoing for more than thirteen years already starting from 1998 when 1,400 flight attendants were retrenched by PAL.  In 2008, the retrenchment was declared illegal by the Supreme Court. PAL’s first Motion for Reconsideration was denied by the Court in 2009 and its Second Motion for Reconsideration was denied with finality last September 2011.

In an unusual turn of events, the Supreme Court issued a Resolution recalling its second Resolution on the basis of letters sent by PAL’s counsel, Estelito Mendoza.

It must be emphasized that this unexpected development is fraught with more procedural irregularities other than the mere recall of an already final and executory Resolution.  As a member of the legal community, this case has far more damaging implications to our judicial system.

Despite its previous pronouncement that no further pleadings will be entertained, the Supreme Court nonetheless accepted the letters of PAL’s counsel and used them as the subject of a separate administrative proceeding.  To note, the main case is under G.R. No. 178083 but the letters were discussed under Administrative No. 11-10-1-SC.  This creates a very dangerous precedent.

First, the Resolution did not state any justifiable reason for the recall. While the Supreme Court, during its presscon, stated that the recall was due to the fact that it was issued by a wrong division, this never appeared in the Resolution recalling the second Resolution. Nevertheless, the flimsy excuse that it was decided by a wrong division cannot be accepted because the decision of a division is a decision or resolution of the Supreme Court itself. Thus, the Resolution, regardless if it was issued by a wrong division, is still a decision of the Supreme Court itself and thus, valid.

In fact, in a different case involving NUWHRAIN-APL-IUF, the employees union of Dusit Hotel Nikko, the Supreme Court was more than willing to brush aside not only a procedural lapse but a violation of the Constitution when the division which resolved the Motion for Reconsideration was made up of only four justices instead of five and that the division reversed a well established doctrine of labor law which falls within the exclusive power of the Court sitting en banc as provided by Section 4, Article VIII of the 1987 Constitution.  Despite these grave violations of the Constitution, the Supreme Court refused and continues to refuse to rectify these irregularities.  Whereas, in the case of PAL where the infraction was insignificant, the Court was quick to act.  Why the double standard?

Second, the recall of the second Resolution in G.R. No 178083 was done under Administrative Matter (AM) No. 11-10-1-SC which is an entirely different proceeding.  The letters sent by PAL’s counsel were seeking for only one request – be advised on the names of the members of the Court who deliberated and voted on the Resolution denying PAL’s Second Motion for Reconsideration.  The letters were bereft of any statement regarding the authority of the division to issue the Resolution.  Thus, being merely an administrative proceeding, the Supreme Court should have acted in its administrative capacity and should have limited the discussion on whether to advise PAL’s counsel on the names of the members of the Court who deliberated and voted on the Resolution. It cannot touch upon the final Resolution in G.R. No 178083 which is an entirely separate case, unless both are consolidated.

Further, the recall of a judgment is no longer an administrative function but an exercise of judicial power which cannot be the subject of a mere administrative proceeding. According to the internal rules of the Supreme Court, administrative matters include disciplinary actions, transfer of judges or cases, amendment or revocation of administrative circulars issued by the Court, policy consideration, matters involving the JBC and PHILJA and other similar acts.  Clearly, the administrative functions are those related to the general supervision and administration of the judiciary.

The recall of Resolutions is not one of the administrative functions of the Court which may be the proper subject of an administrative proceeding.  It is already an exercise of judicial power.  It would have been different if what was involved is merely the transfer of the case from one division to another.  However, in the case of FASAP, there was already a final resolution on the matter, which as previously discussed is considered as a Resolution of the Supreme Court itself, regardless of which division rendered it.  The Supreme Court cannot violate the established rules of procedure just to rectify a previous deviation from its internal rules. In popular parlance, two wrongs don’t make one right.

Third, neither PAL nor the Supreme Court can claim that the alleged deviation from the internal rules of the court with regard to the composition of the division will have dire consequences on the interest of PAL.  It must be emphasized that the Second Motion for Reconsideration which it filed before the Third Division is already a prohibited pleading under Section 2, Rule 52 of the Rules of Court and under a myriad of jurisprudence. Further, the first Resolution explicitly stated that “no further pleadings will be entertained.” Nonetheless, the Supreme Court still entertained PAL’s Second Motion for Reconsideration. With the denial of the Second Motion for Reconsideration, the doubts of FASAP on the Court were quickly eased. However, in less than just a month, the Supreme Court recalled the Resolution and reopened the case again on the basis of letters from PAL’s counsel. This, in effect, is already a Third Motion for Reconsideration on the case. To this we ask, when does a case really end?

Applicable is the landmark case of Tolentino v. Ongsiako, et al (GR No. L-17938, April 30, 1963) which stated that public policy and sound practice demand that, at the risk of occasional errors, judgments of courts should become final and irrevocable at some definite date fixed by law. Interes rei publicae ut finis sit litium.

The recall of the second Resolution is a major setback not only for the retrenched employees but for our judicial system as well.  With this case already forming part of our judicial system, what can stop parties or their lawyers from employing stratagems or maneuverings, in the guise of letters or endless Motions for Reconsiderations, in order to delay the termination of cases? Unless the Supreme Court recognizes that it made a mistake in recalling the second Resolution, nothing will.

Finally, the recall of the Resolution was issued ex-parte or without granting the other party an opportunity to contest the letters filed by PAL’s counsel.  Considering that the previous Resolution already vested rights on the members of FASAP who have long been waiting for justice, fairplay dictates that they should at least have been given a chance to dispute the letters of PAL’s counsel which they were never granted.


Rule of Law or Rule of Men?

With the Supreme Court’s controversial recall of the Resolution, one cannot help but ask this question: Are we really governed by the rule of law or the rule of men?

If the rule of law was upheld, fairness and equity dictate that the case should have ended after the denial of the FIRST Motion for Reconsideration in 2008 or more than three years ago.  However, that is not the case. One only needs to consider this fact to answer the question: the employees waited for more than a year before the Court dismissed the Second Motion for Reconsideration while their employer PAL only had to wait for a month to have the same recalled through an unusual power of a mere letter.

After having said this, the answer to the question of whether we are governed by the rule of law or rule of men becomes very much obvious and does not necessitate articulation. Res ipsa loquitur.

Sadly, the words of the second Resolution which stated that “the [Court] is duty-bound to finally put an end to the illegality that took place, otherwise, the illegally retrenched employees can rightfully claim that this Court has denied them justice” are now reduced to empty rhetoric and an eloquent example of irony.


*** A lawyer by profession, AKBAYAN Representative Kaka J. Bag-ao was the Convenor of the Alternative Legal Group, a network of NGOs providing legal support to marginalized communities. She was the legal counsel of the Sumilao farmers.
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