[G.R. No. 155108.

June 26, 2006]

REPUBLIC OF THE PHILIPPINES, REPRESENTED BY DEPARTMENT OF

PUBLIC WORKS AND HIGHWAYS (DPWH) UNDER SECRETARY
SIMEON DATUMANONG AND UNDERSECRETARY EDMUNDO V. MIR,
THEN CHAIRMAN OF BID AND AWARDS COMMITTEE (BAC),
ASSISTANT SECRETARY BASHIR D. RASUMAN, BAC VICE-CHAIRMAN,
DIRECTOR OSCAR D. ABUNDO, BAC MEMBER DIRECTOR
OIC-DIRECTOR ANTONIO V. MALANO, JR., BAC MEMBER AND
PROJECT DIRECTOR PHILIP F. MENEZ v. EMILIANO R. NOLASCO

Second Division

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court

dated JUNE 26, 2006

G.R. No. 155108 (Republic of the Philippines, Represented By Department of

Public Works and Highways (DPWH) Under Secretary Simeon Datumanong and
Undersecretary Edmundo V. Mir, then Chairman of Bid and Awards Committee
(BAC), Assistant .Secretary Bashir D. Rasuman, BAC Vice-Chairman, Director
Oscar D. Abundo, BAC Member Director OIC-Director Antonio V. Malano, Jr.,
BAC Member and Project Director Philip F. Menez v. Emiliano R. Nolasco)

This dispenses with the motion filed by private respondent Emiliano Nolasco
(Nolasco) seeking to cite in direct contempt Solicitor General Alfredo Benipayo
(Solicitor General)[1]cralaw and Associate Solicitor Rebecca Dacanay (Dacanay),
who both represented the Office of the Solicitor General, counsel for petitioner
in this case. The case itself, which involved the review of orders promulgated
by the Regional Trial Court (RTC) of Manila, Branch 32, in Civil Case No.
02-102923, was decided in a Decision[2]cralaw dated 27 April 2005, and has
since become final after neither party opted to file a Motion for Reconsideration
thereto.

This present motion is premised on the allegation that the Solicitor General and
Dacanay have somehow committed "falsification, manipulation, subversion and
fraud" in a letter to the Secretary of the Department of Public Works and
Highways (DPWH), Hermogenes Ebdane, dated 8 June 2005. The letter, signed
by the Solicitor General, advised the DPWH Secretary that "based on [this
Court's] Decision, there is no more legal impediment at this point in time, in the
award of the subject [Project Contract] to DAEWOO Engineering &
Construction Co. Ltd."[3]cralaw Nolasco argues that contrary to this opinion of
the Solicitor General, the Decision instead held that China International Water
& Electric Corporation (CIWEC) "must be awarded the project", since respect
must be accorded to the alleged factual findings of the Regional Trial Court
(RTC) of Manila, Branch 32, that CIWEC had "the lowest evaluated responsive
bid."[4]cralaw

In their Comment, the Solicitor General and Dacanay argue that Nolasco's own
interpretation of the Court's Decision is in "blatant disregard, if not
[misrepresentation] of what [the Court] clearly pronounced." They point out
that the Court had declared as obiter dictum the portion in the challenged RTC
Order, which had been the subject of this petition, that the DPWH Secretary
should consider awarding the Project to CIWEC. They argue that the motion to
cite them in direct contempt is actually a ploy to re-open the issue of whether
the RTC validly decided in favor of Nolasco and CIWEC.

For certain, direct contempt cannot be a viable penalty against the Solicitor
General and Dacanay even if their behavior can be considered as contemptuous.
Direct contempt, which is adjudged summarily, applies only to persons "guilty
of misbehavior in the presence of or so near a court as to obstruct or interrupt
the proceedings before the same."[5]cralaw The act complained of consisted of
the writing of a letter by the Solicitor General to the DPWH Secretary, an act
that cannot be deemed as "in the presence of or so near a court as to obstruct
or interrupt the proceedings before the same."

Nolasco claims that the letter of the Solicitor General to the DPWH Secretary
was "unsolicited," thus implying that there was a tinge of malice in the very act
of sending the letter. The implication is material especially considering that two
days before the date of the letter, the Chief of the Legal Affairs Service of the
DPWH wrote a Memorandum opining that the Court's Decision was "to award
the contract x x x of the Agno Flood Control Project to [CIWEC]," [6]cralaw a
position clearly contrary to that of the Solicitor General. Nonetheless, it should
be noted that the first paragraph of the Solicitor General's letter stated that the
purpose of such letter was "to inform [the DPWH Secretary] of the [OSG's]
receipt of the Supreme Court Decision promulgated April 27, 2005 in the
above-stated case."[7]cralaw It is certainly the duty of the OSG, as statutory
counsel of the DPWH, to advise its clients of any developments on the case,
including its ultimate resolution and the effects thereof. The Court sees nothing
sinister or contemptuous in the very act of sending the letter.

Moreover, the letter itself is signed only by the Solicitor General, and not
Dacanay. Nolasco alleges that the letter was obviously written by Dacanay
"because of the English terminology being used,"[8]cralawbut that reasoning is
just plain silly and cannot be accorded any weight to support the conclusion
that the letter links Dacanay to any contemptuous act.

Nolasco does further allege, in relation to a spurious RTC Order which the Court
adverted to in its Decision,[9]cralaw that "[i]t is now clear that the one who
manufactured the alleged [M]arch 22, 200[2] RTC Order was [Dacanay]." That
conclusion is apparently derived from a Resolution issued by Assistant
Investigating Prosecutor Wilfredo B. Lasala of the Manila City Prosecutor's
Office dismissing a complaint for falsification filed by Daewoo accusing Nolasco
of authoring the spurious RTC order. The Resolution opined that "the
complainant who was in possession of the order in question may be presumed
to be the author of the falsification thereof."[10]cralaw Even if that statement
could be considered imputative against Dacanay, who was not the complainant
in the said complaint, such conclusion is hardly binding on the Court, nor
definitive as proof that Dacanay had indeed forged the RTC order. The
incidents relating to the spurious RTC Order cannot serve as basis for the
present contempt charge against Dacanay.

Even though the charges for contempt are palpably unmeritorious the Court
considers it useful to dwell in brief upon what obviously is at the heart of these
pending incidents - the effect of the Court's Decision promulgated on 27 April
2005. There is no ambiguity to the said decision, but it is clear that both sides
have been utilizing competing interpretations to their respective advantages.
The dispute is particularly embarrassing as the matter concerns a necessary
public works project involving foreign investors who, as with the Court, could
not be too happy seeing the parties carrying on their dispute at a level that
barely rises above the heights of schoolyard taunts.

The Decision had affirmed the Order dated 6 September 2002 of the Regional
Trial Court (RTC) of Manila, Branch 32, the dispositive portion of which read:
"WHEREFORE, in view of all the foregoing, the Motion for Reconsideration of
the Petition is hereby DISMISSED." The motion for reconsideration adverted to
was the one filed by Nolasco, seeking reconsideration of the RTC Order
dated 27 March 2002 which dismissed Nolasco's "petition" before the RTC.
Thus, the 6 September 2002 RTC Order, as affirmed by this Court, simply had
the effect of finally dismissing Nolasco's "petition," and nothing more. The RTC
Order was nonetheless subject of some controversy as it intimated that the
DPWH should consider awarding the project to CIWEC, yet the Court ruled that
the portion of the RTC Order concerning such discussion was obiter dicta, and
hence of no binding force.[11]cralaw

Accordingly, the effect of the Court's Decision was simply to confirm Civil Case
No. 02-102923, initiated by Nolasco, as dismissed, closed and terminated. The
Court's Decision does not compel any party, whether it be Nolasco, the OSG,
the DPWH, Daewoo or CIWEC, towards any act or behavior except to desist
from any further action in Civil Case No. 02-102923. If despite the Court's
Decision, Which is now final and executory, litigation of Civil Case No.
02-102923 has persisted, such action directly contravenes the decision of the
Court. Any other reactive step of the parties not connected to the pursuit of
litigation of Civil Case No. 02-102923 is not barred by the Court's Decision.
To be emphatic about it, the Court's Decision does not compel, or in any way
even suggest, the DPWH award the project to either Daewoo or CIWEC. Per the
Decision's, statement of facts, it appears that in 2002, then DPWH Secretary
Simeon Datumanong approved the recommendation of the Bids and Awards
Committee that the project be awarded to Daewoo, and that such
recommendation was then furnished to the foreign investor, Japan Bank for
International Cooperation, for review and concurrence.[12]cralaw The Court's
Decision does not affirm or reverse that particular act of the DPWH, or any
subsequent act of the DPWH relating to the Agno River project. If any party
wishes to seek judicial review of whatever actions of the DPWH concerning the
Agno River project, the proper case should be filed before the proper tribunal.
What the Court's Decision precludes is the utilization of Civil Case No.
02-102923, or Nolasco's "petition" therein, for such purposes, as that case is
now closed and terminated, with Nolasco's initiatory pleading therein
irrevocably dismissed. Indeed, the Court took pains in pointing put the multiple
defects of Nolasco's "petition," and it could hardly be given credence as the
source of any viable cause of action.

A final note. The subject matters involve an essential public works project to be
funded by foreign investors. As such, it stands as an area of concern within the
populace and the foreign financial community. It goes Without saying that the
involved or concerned government agencies, the prospective bidders, and
interested citizens such as Nolasco who choose to involve themselves in the
matter are expected to behave, within the confines of the law, especially as
close scrutiny bears upon them. Any delay or problems caused by chicanery or
inefficiency will not only embarrass the Philippine government in the eyes of the
foreign community; it will also do a massive disservice to the Filipino people.

WHEREFORE, private respondent's motion dated 5 September 2005 is DENIED

for LACK OF MERIT. Considering that the Decision of the Court dated 27 April
2005, affirming the dismissal of Civil Case No. 02-102923 has already become
final and executory, NO FURTHER PLEADINGS shall be entertained by this
Court.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG

Clerk of Court