A.

FUNDAMENTAL PRINCIPLES ON CONSTITUTIONAL LAW AND THE BILL OF RIGHTS

[G.R. No. 122156. February 3, 1997]

MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.
DECISION
BELLOSILLO, J.:
The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give preference to qualified Filipinos,[1] is invoked by petitioner in its bid to acquire
51% of the shares of the Manila Hotel Corporation (MHC) which owns the historic Manila Hotel. Opposing, respondents maintain
that the provision is not self-executing but requires an implementing legislation for its enforcement. Corollarily, they ask whether the
51% shares form part of the national economy and patrimony covered by the protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to the privatization program of
the Philippine Government under Proclamation No. 50 dated 8 December 1986, decided to sell through public bidding 30% to 51% of
the issued and outstanding shares of respondent MHC. The winning bidder, or the eventual strategic partner, is to provide management
expertise and/or an international marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel.[2] In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel
Corporation, a Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong
Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same number of shares at P44.00 per share,
or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state -
I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC -
1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset to November 3, 1995) or the
Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to the other
Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan for the Manila
Hotel x x x x
b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS x x x x
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER -
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/ OGCC (Office of the Government Corporate
Counsel) are obtained.[3]
Pending the declaration of Renong Berhard as the winning bidder/strategic partner and the execution of the necessary contracts,
petitioner in a letter to respondent GSIS dated 28 September 1995 matched the bid price of P44.00 per share tendered by Renong
Berhad.[4] In a subsequent letter dated 10 October 1995 petitioner sent a managers check issued by Philtrust Bank for Thirty-three
Million Pesos (P33,000,000.00) as Bid Security to match the bid of the Malaysian Group, Messrs. Renong Berhad x x x x[5] which
respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the matching bid and that the sale
of 51% of the MHC may be hastened by respondent GSIS and consummated with Renong Berhad, petitioner came to this Court on
prohibition and mandamus. On 18 October 1995 the Court issued a temporary restraining order enjoining respondents from perfecting
and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it by the First Division. The
case was then set for oral arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits that the Manila Hotel has
been identified with the Filipino nation and has practically become a historical monument which reflects the vibrancy of Philippine
heritage and culture. It is a proud legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of
independence and its power and capacity to release the full potential of the Filipino people. To all intents and purposes, it has become
a part of the national patrimony.[6]Petitioner also argues that since 51% of the shares of the MHC carries with it the ownership of the
business of the hotel which is owned by respondent GSIS, a government-owned and controlled corporation, the hotel business of
respondent GSIS being a part of the tourism industry is unquestionably a part of the national economy. Thus, any transaction involving
51% of the shares of stock of the MHC is clearly covered by the term national economy, to which Sec. 10, second par., Art. XII, 1987
Constitution, applies.[7]
It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its business also unquestionably part
of the national economy petitioner should be preferred after it has matched the bid offer of the Malaysian firm. For the bidding rules
mandate that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price
per share.[8]
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987 Constitution is merely a statement of
principle and policy since it is not a self-executing provision and requires implementing legislation(s) x x x x Thus, for the said
provision to operate, there must be existing laws to lay down conditions under which business may be done. [9]
Second, granting that this provision is self-executing, Manila Hotel does not fall under the term national patrimony which only
refers to lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and
second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner speaks of the guests who have
slept in the hotel and the events that have transpired therein which make the hotel historic, these alone do not make the hotel fall under
the patrimony of the nation. What is more, the mandate of the Constitution is addressed to the State, not to respondent GSIS which
possesses a personality of its own separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision invoked is still
inapplicable since what is being sold is only 51% of the outstanding shares of the corporation, not the hotel building nor the land upon
1
which the building stands. Certainly, 51% of the equity of the MHC cannot be considered part of the national patrimony.Moreover, if
the disposition of the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it right from the
beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if for any reason, the Highest
Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids
provided that these Qualified Bidders are willing to match the highest bid in terms of price per share , is misplaced. Respondents
postulate that the privilege of submitting a matching bid has not yet arisen since it only takes place if for any reason, the Highest
Bidder cannot be awarded the Block of Shares. Thus the submission by petitioner of a matching bid is premature since Renong Berhad
could still very well be awarded the block of shares and the condition giving rise to the exercise of the privilege to submit a matching
bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent GSIS did not exercise its
discretion in a capricious, whimsical manner, and if ever it did abuse its discretion it was not so patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as
petitioner has no clear legal right to what it demands and respondents do not have an imperative duty to perform the act required of
them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme,
imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and
paramount law of the nation.[10] It prescribes the permanent framework of a system of government, assigns to the different departments
their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental
conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private
rights must be determined and all public authority administered. [11] Under the doctrine of constitutional supremacy, if a law or contract
violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered
into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the
fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command the legislature to
enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different
departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens. [12] A provision which
lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision
which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies
sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing.Thus a constitutional provision is
self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they
can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to
the legislature for action.[13]
As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and have often
become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory
enactments, and the function of constitutional conventions has evolved into one more like that of a legislative body.Hence, unless it is
expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of
the constitution are self-executing.If the constitutional provisions are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify the mandate of the fundamental law. [14] This can be
cataclysmic. That is why the prevailing view is, as it has always been, that -
x x x x in case of doubt, the Constitution should be considered self-executing rather than non-self-executing x x x x Unless the
contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute. [15]
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-executing, as they quote from
discussions on the floor of the 1986 Constitutional Commission -
MR. RODRIGO. Madam President, I am asking this question as the Chairman of the Committee on Style. If the wording of
PREFERENCE is given to QUALIFIED FILIPINOS, can it be understood as a preference to qualified Filipinos vis-a-
vis Filipinos who are not qualified. So, why do we not make it clear? To qualified Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the word QUALIFIED?
MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against whom? As against aliens or over aliens
?
MR. NOLLEDO. Madam President, I think that is understood. We use the word QUALIFIED because the existing laws or
prospective laws will always lay down conditions under which business may be done. For example, qualifications on
capital, qualifications on the setting up of other financial structures, et cetera (underscoring supplied by respondents).
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes.[16]
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear that it is non-self-executing
but simply for purposes of style. But, certainly, the legislature is not precluded from enacting further laws to enforce the constitutional
provision so long as the contemplated statute squares with the Constitution. Minor details may be left to the legislature without
impairing the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the exercise of powers directly
granted by the constitution, further the operation of such a provision, prescribe a practice to be used for its enforcement, provide a
convenient remedy for the protection of the rights secured or the determination thereof, or place reasonable safeguards around the
exercise of the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the violation of a self-
executing constitutional provision does not render such a provision ineffective in the absence of such legislation. The omission from a
constitution of any express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not
intended to be self-executing. The rule is that a self-executing provision of the constitution does not necessarily exhaust legislative
power on the subject, but any legislation must be in harmony with the constitution, further the exercise of constitutional right and
make it more available. [17] Subsequent legislation however does not necessarily mean that the subject constitutional provision is not,
by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is implied from the tenor of the first
and third paragraphs of the same section which undoubtedly are not self-executing. [18] The argument is flawed. If the first and third
2
paragraphs are not self-executing because Congress is still to enact measures to encourage the formation and operation of enterprises
fully owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and exercise authority over foreign
investments within its national jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second paragraph can only
be self-executing as it does not by its language require any legislation in order to give preference to qualified Filipinos in the grant of
rights, privileges and concessions covering the national economy and patrimony. A constitutional provision may be self-executing in
one part and non-self-executing in another.[19]
Even the cases cited by respondents holding that certain constitutional provisions are merely statements of principles and
policies, which are basically not self-executing and only placed in the Constitution as moral incentives to legislation, not as judicially
enforceable rights - are simply not in point. Basco v. Philippine Amusements and Gaming Corporation[20] speaks of constitutional
provisions on personal dignity,[21] the sanctity of family life,[22] the vital role of the youth in nation-building, [23] the promotion of social
justice,[24] and the values of education. [25]Tolentino v. Secretary of Finance [26] refers to constitutional provisions on social justice and
human rights[27] and on education.[28] Lastly, Kilosbayan, Inc. v. Morato[29] cites provisions on the promotion of general welfare, [30] the
sanctity of family life, [31] the vital role of the youth in nation-building [32] and the promotion of total human liberation and development.
[33]
A reading of these provisions indeed clearly shows that they are not judicially enforceable constitutional rights but merely
guidelines for legislation. The very terms of the provisions manifest that they are only principles upon which legislations must be
based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in
itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does
not require any legislation to put it in operation. It is per se judicially enforceable. When our Constitution mandates that [i]n the grant
of rights, privileges, and concessions covering national economy and patrimony, the State shall give preference to qualified
Filipinos, it means just that - qualified Filipinos shall be preferred. And when our Constitution declares that a right exists in certain
specified circumstances an action may be maintained to enforce such right notwithstanding the absence of any legislation on the
subject; consequently, if there is no statute especially enacted to enforce such constitutional right, such right enforces itself by its own
inherent potency and puissance, and from which all legislations must take their bearings. Where there is a right there is a remedy. Ubi
jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional Commission[34] explains -
The patrimony of the Nation that should be conserved and developed refers not only to our rich natural resources but
also to the cultural heritage of our race. It also refers to our intelligence in arts, sciences and letters. Therefore, we should
develop not only our lands, forests, mines and other natural resources but also the mental ability or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage.[35] When the Constitution speaks of national
patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural
resources, but also to the cultural heritage of the Filipinos.
Manila Hotel has become a landmark - a living testimonial of Philippine heritage. While it was restrictively an American hotel
when it first opened in 1912, it immediately evolved to be truly Filipino. Formerly a concourse for the elite, it has since then become
the venue of various significant events which have shaped Philippine history. It was called the Cultural Center of the 1930s. It was the
site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as the Official Guest House of the Philippine
Government it plays host to dignitaries and official visitors who are accorded the traditional Philippine hospitality. [36]
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of a City.[37] During World
War II the hotel was converted by the Japanese Military Administration into a military headquarters. When the American forces
returned to recapture Manila the hotel was selected by the Japanese together with Intramuros as the two (2) places for their final
stand. Thereafter, in the 1950s and 1960s, the hotel became the center of political activities, playing host to almost every political
convention. In 1970 the hotel reopened after a renovation and reaped numerous international recognitions, an acknowledgment of the
Filipino talent and ingenuity. In 1986 the hotel was the site of a failed coup d etat where an aspirant for vice-president was proclaimed
President of the Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures, loves and frustrations of the
Filipinos; its existence is impressed with public interest; its own historicity associated with our struggle for sovereignty, independence
and nationhood. Verily, Manila Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the
MHC comes within the purview of the constitutional shelter for it comprises the majority and controlling stock, so that anyone who
acquires or owns the 51% will have actual control and management of the hotel. In this instance, 51% of the MHC cannot be
disassociated from the hotel and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents claim that
the Filipino First Policy provision is not applicable since what is being sold is only 51% of the outstanding shares of the corporation,
not the Hotel building nor the land upon which the building stands.[38]
The argument is pure sophistry. The term qualified Filipinos as used in our Constitution also includes corporations at least 60%
of which is owned by Filipinos. This is very clear from the proceedings of the 1986 Constitutional Commission -
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And the amendment would consist in
substituting the words QUALIFIED FILIPINOS with the following: CITIZENS OF THE PHILIPPINES OR
CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED
BY SUCH CITIZENS.
xxxx
MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have to raise a question. Suppose it is a
corporation that is 80-percent Filipino, do we not give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about a corporation wholly owned by
Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference should only be 100-percent
Filipino.
MR. DAVIDE. I want to get that meaning clear because QUALIFIED FILIPINOS may refer only to individuals and not to
juridical personalities or entities.
MR. MONSOD. We agree, Madam President.[39]
xxxx
MR. RODRIGO. Before we vote, may I request that the amendment be read again.
3
 MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS. And the word Filipinos here, as intended by the proponents, will include not only
individual Filipinos but also Filipino-controlled entities or entities fully-controlled by Filipinos. [40]
The phrase preference to qualified Filipinos was explained thus -
MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please restate his amendment so that I can
ask a question.
MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS.
MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and a Filipino enterprise is also qualified,
will the Filipino enterprise still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still be preferred?
MR. NOLLEDO. The answer is yes.
MR. FOZ. Thank you.[41]
Expounding further on the Filipino First Policy provision Commissioner Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED FILIPINOS. This embodies the so-called Filipino First policy.That means that
Filipinos should be given preference in the grant of concessions, privileges and rights covering the national patrimony.
[42]

The exchange of views in the sessions of the Constitutional Commission regarding the subject provision was still further clarified
by Commissioner Nolledo[43] -
Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all economic concerns. It is better known as the FILIPINO
FIRST Policy x x x x This provision was never found in previous Constitutions x x x x
The term qualified Filipinos simply means that preference shall be given to those citizens who can make a viable contribution to the
common good, because of credible competence and efficiency. It certainly does NOT mandate the pampering and preferential
treatment to Filipino citizens or organizations that are incompetent or inefficient, since such an indiscriminate preference would be
counterproductive and inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has to be made between a qualified foreigner and a
qualified Filipino, the latter shall be chosen over the former.
Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS and selected as one of
the qualified bidders. It was pre-qualified by respondent GSIS in accordance with its own guidelines so that the sole inference here is
that petitioner has been found to be possessed of proven management expertise in the hotel industry, or it has significant equity
ownership in another hotel company, or it has an overall management and marketing proficiency to successfully operate the Manila
Hotel.[44]
The penchant to try to whittle away the mandate of the Constitution by arguing that the subject provision is not self-executory
and requires implementing legislation is quite disturbing.The attempt to violate a clear constitutional provision - by the government
itself - is only too distressing. To adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For,
even some of the provisions of the Constitution which evidently need implementing legislation have juridical life of their own and can
be the source of a judicial remedy.We cannot simply afford the government a defense that arises out of the failure to enact further
enabling, implementing or guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt
-
The executive department has a constitutional duty to implement laws, including the Constitution, even before Congress acts -
provided that there are discoverable legal standards for executive action. When the executive acts, it must be guided by its own
understanding of the constitutional command and of applicable laws. The responsibility for reading and understanding the
Constitution and the laws is not the sole prerogative of Congress. If it were, the executive would have to ask Congress, or perhaps the
Court, for an interpretation every time the executive is confronted by a constitutional command. That is not how constitutional
government operates.[45]
Respondents further argue that the constitutional provision is addressed to the State, not to respondent GSIS which by itself
possesses a separate and distinct personality. This argument again is at best specious. It is undisputed that the sale of 51% of the MHC
could only be carried out with the prior approval of the State acting through respondent Committee on Privatization. As correctly
pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of respondents GSIS and MHC a state action. In
constitutional jurisprudence, the acts of persons distinct from the government are considered state action covered by the Constitution
(1) when the activity it engages in is a public function; (2) when the government is so significantly involved with the private actor as
to make the government responsible for his action; and, (3) when the government has approved or authorized the action. It is evident
that the act of respondent GSIS in selling 51% of its share in respondent MHC comes under the second and third categories of state
action. Without doubt therefore the transaction, although entered into by respondent GSIS, is in fact a transaction of the State and
therefore subject to the constitutional command.[46]
When the Constitution addresses the State it refers not only to the people but also to the government as elements of the
State. After all, government is composed of three (3) divisions of power - legislative, executive and judicial. Accordingly, a
constitutional mandate directed to the State is correspondingly directed to the three (3) branches of government. It is undeniable that in
this case the subject constitutional injunction is addressed among others to the Executive Department and respondent GSIS, a
government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning bidder. The bidding rules
expressly provide that the highest bidder shall only be declared the winning bidder after it has negotiated and executed the necessary
contracts, and secured the requisite approvals. Since the Filipino First Policy provision of the Constitution bestows preference
on qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will be declared the winning
bidder. Resultantly, respondents are not bound to make the award yet, nor are they under obligation to enter into one with the highest
bidder. For in choosing the awardee respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of
which are presumed to be known to all the bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it should be, impliedly written in
the bidding rules issued by respondent GSIS, lest the bidding rules be nullified for being violative of the Constitution. It is a basic

4
principle in constitutional law that all laws and contracts must conform with the fundamental law of the land.Those which violate the
Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are
willing to match the highest bid in terms of price per share. [47] Certainly, the constitutional mandate itself is reason enough not to
award the block of shares immediately to the foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In
fact, we cannot conceive of a strongerreason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the grant of rights, privileges and
concessions covering the national economy and patrimony, thereby exceeding the bid of a Filipino, there is no question that the
Filipino will have to be allowed to match the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award
should go to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of the 1987
Constitution. For, while this may neither be expressly stated nor contemplated in the bidding rules, the constitutional fiat is
omnipresent to be simply disregarded. To ignore it would be to sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign investors. But the Constitution and laws of
the Philippines are understood to be always open to public scrutiny. These are given factors which investors must consider when
venturing into business in a foreign jurisdiction. Any person therefore desiring to do business in the Philippines or with any of its
agencies or instrumentalities is presumed to know his rights and obligations under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the sale to Renong Berhad since petitioner was
well aware from the beginning that a foreigner could participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners
alike were invited to the bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails
to match the highest bid tendered by the foreign entity. In the case before us, while petitioner was already preferred at the inception of
the bidding because of the constitutional mandate, petitioner had not yet matched the bid offered by Renong Berhad. Thus it did not
have the right or personality then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the
foreign firm and the apparent disregard by respondent GSIS of petitioners matching bid did the latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award has been finally made. To
insist on selling the Manila Hotel to foreigners when there is a Filipino group willing to match the bid of the foreign group is to insist
that government be treated as any other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of
the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable. Thus we would rather remedy the
indiscretion while there is still an opportunity to do so than let the government develop the habit of forgetting that the Constitution
lays down the basic conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding rules, respondent GSIS is
left with no alternative but to award to petitioner the block of shares of MHC and to execute the necessary agreements and documents
to effect the sale in accordance not only with the bidding guidelines and procedures but with the Constitution as well. The refusal of
respondent GSIS to execute the corresponding documents with petitioner as provided in the bidding rules after the latter has matched
the bid of the Malaysian firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not merely to be used as
a guideline for future legislation but primarily to be enforced; so must it be enforced. This Court as the ultimate guardian of the
Constitution will never shun, under any reasonable circumstance, the duty of upholding the majesty of the Constitution which it is
tasked to defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much less undermine, the
influx of foreign investments. Far from it, the Court encourages and welcomes more business opportunities but avowedly sanctions the
preference for Filipinos whenever such preference is ordained by the Constitution. The position of the Court on this matter could have
not been more appropriately articulated by Chief Justice Narvasa -
As scrupulously as it has tried to observe that it is not its function to substitute its judgment for that of the legislature or the executive
about the wisdom and feasibility of legislation economic in nature, the Supreme Court has not been spared criticism for decisions
perceived as obstacles to economic progress and development x x x x in connection with a temporary injunction issued by the Courts
First Division against the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements were published in a major
daily to the effect that that injunction again demonstrates that the Philippine legal system can be a major obstacle to doing business
here.
Let it be stated for the record once again that while it is no business of the Court to intervene in contracts of the kind referred to or set
itself up as the judge of whether they are viable or attainable, it is its bounden duty to make sure that they do not violate the
Constitution or the laws, or are not adopted or implemented with grave abuse of discretion amounting to lack or excess of
jurisdiction. It will never shirk that duty, no matter how buffeted by winds of unfair and ill-informed criticism.[48]
Privatization of a business asset for purposes of enhancing its business viability and preventing further losses, regardless of the
character of the asset, should not take precedence over non-material values. A commercial, nay even a budgetary, objective should not
be pursued at the expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material values. Indeed,
the Court will always defer to the Constitution in the proper governance of a free society; after all, there is nothing so sacrosanct in
any economic policy as to draw itself beyond judicial review when the Constitution is involved. [49]
Nationalism is inherent in the very concept of the Philippines being a democratic and republican state, with sovereignty residing
in the Filipino people and from whom all government authority emanates. In nationalism, the happiness and welfare of the people
must be the goal. The nation-state can have no higher purpose. Any interpretation of any constitutional provision must adhere to such
basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot override the demands of nationalism.[50]
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the highest bidder solely for the
sake of privatization. We are not talking about an ordinary piece of property in a commercial district. We are talking about a historic
relic that has hosted many of the most important events in the short history of the Philippines as a nation. We are talking about a hotel
where heads of states would prefer to be housed as a strong manifestation of their desire to cloak the dignity of the highest state
function to their official visits to the Philippines. Thus the Manila Hotel has played and continues to play a significant role as an
authentic repository of twentieth century Philippine history and culture. In this sense, it has become truly a reflection of the Filipino
soul - a place with a history of grandeur; a most historical setting that has played a part in the shaping of a country.[51]
This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the historical landmark -
this Grand Old Dame of hotels in Asia - to a total stranger. For, indeed, the conveyance of this epic exponent of the Filipino psyche to
alien hands cannot be less than mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nations soul for some
pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from a qualified Filipino, can be gained by
the Filipinos if Manila Hotel - and all that it stands for - is sold to a non-Filipino? How much of national pride will vanish if the
5
nations cultural heritage is entrusted to a foreign entity? On the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino? This is the plain and simple meaning of
the Filipino First Policyprovision of the Philippine Constitution. And this Court, heeding the clarion call of the Constitution and
accepting the duty of being the elderly watchman of the nation, will continue to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL are directed to CEASE and
DESIST from selling 51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of
petitioner MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila Hotel Corporation
at P44.00 per share and thereafter to execute the necessary agreements and documents to effect the sale, to issue the necessary
clearances and to do such other acts and deeds as may be necessary for the purpose.
SO ORDERED.
G.R. No. 161872 April 13, 2004
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17, 2003. Respondent Commission
on Elections (COMELEC) refused to give due course to petitioner’s Certificate of Candidacy in its Resolution No. 6558 dated January
17, 2004. The decision, however, was not unanimous since Commissioners Luzviminda G. Tancangco and Mehol K. Sadain voted to
include petitioner as they believed he had parties or movements to back up his candidacy.
On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558. Petitioner’s Motion for Reconsideration was
docketed as SPP (MP) No. 04-001. The COMELEC, acting on petitioner’s Motion for Reconsideration and on similar motions filed by
other aspirants for national elective positions, denied the same under the aegis of Omnibus Resolution No. 6604 dated February 11,
2004. The COMELEC declared petitioner and thirty-five (35) others nuisance candidates who could not wage a nationwide campaign
and/or are not nominated by a political party or are not supported by a registered political party with a national constituency.
Commissioner Sadain maintained his vote for petitioner. By then, Commissioner Tancangco had retired.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly rendered in violation of his
right to "equal access to opportunities for public service" under Section 26, Article II of the 1987
Constitution,1 by limiting the number of qualified candidates only to those who can afford to wage a nationwide campaign and/or are
nominated by political parties. In so doing, petitioner argues that the COMELEC indirectly amended the constitutional provisions on
the electoral process and limited the power of the sovereign people to choose their leaders. The COMELEC supposedly erred in
disqualifying him since he is the most qualified among all the presidential candidates, i.e., he possesses all the constitutional and legal
qualifications for the office of the president, he is capable of waging a national campaign since he has numerous national organizations
under his leadership, he also has the capacity to wage an international campaign since he has practiced law in other countries, and he
has a platform of government. Petitioner likewise attacks the validity of the form for the Certificate of Candidacy prepared by the
COMELEC. Petitioner claims that the form does not provide clear and reasonable guidelines for determining the qualifications of
candidates since it does not ask for the candidate’s bio-data and his program of government.
First, the constitutional and legal dimensions involved.
Implicit in the petitioner’s invocation of the constitutional provision ensuring "equal access to opportunities for public office" is the
claim that there is a constitutional right to run for or hold public office and, particularly in his case, to seek the presidency. There is
none. What is recognized is merely a privilege subject to limitations imposed by law. Section 26, Article II of the Constitution neither
bestows such a right nor elevates the privilege to the level of an enforceable right. There is nothing in the plain language of the
provision which suggests such a thrust or justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration of Principles and State
Policies." The provisions under the Article are generally considered not self-executing, 2 and there is no plausible reason for according
a different treatment to the "equal access" provision. Like the rest of the policies enumerated in Article II, the provision does not
contain any judicially enforceable constitutional right but merely specifies a guideline for legislative or executive action. 3 The
disregard of the provision does not give rise to any cause of action before the courts.4
An inquiry into the intent of the framers 5 produces the same determination that the provision is not self-executory. The original
wording of the present Section 26, Article II had read, "The State shall broaden opportunities to public office and prohibit public
dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought forth an amendment that changed the word
"broaden" to the phrase "ensure equal access," and the substitution of the word "office" to "service." He explained his proposal in this
wise:
I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important would be equal access to the
opportunity. If you broaden, it would necessarily mean that the government would be mandated to create as many
offices as are possible to accommodate as many people as are also possible. That is the meaning of broadening
opportunities to public service. So, in order that we should not mandate the State to make the government the number
one employer and to limit offices only to what may be necessary and expedient yet offering equal opportunities to
access to it, I change the word "broaden."7 (emphasis supplied)
Obviously, the provision is not intended to compel the State to enact positive measures that would accommodate as many people as
possible into public office. The approval of the "Davide amendment" indicates the design of the framers to cast the provision as simply
enunciatory of a desired policy objective and not reflective of the imposition of a clear State burden.
Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of positive rights. It is difficult to
interpret the clause as operative in the absence of legislation since its effective means and reach are not properly defined. Broadly
written, the myriad of claims that can be subsumed under this rubric appear to be entirely open-ended. 8 Words and phrases such as
"equal access," "opportunities," and "public service" are susceptible to countless interpretations owing to their inherent impreciseness.
Certainly, it was not the intention of the framers to inflict on the people an operative but amorphous foundation from which innately
unenforceable rights may be sourced.
As earlier noted, the privilege of equal access to opportunities to public office may be subjected to limitations. Some valid limitations
specifically on the privilege to seek elective office are found in the provisions 9 of the Omnibus Election Code on "Nuisance
Candidates" and COMELEC Resolution No. 6452 10 dated December 10, 2002 outlining the instances wherein the COMELEC
may motu proprio refuse to give due course to or cancel a Certificate of Candidacy.
6
As long as the limitations apply to everybody equally without discrimination, however, the equal access clause is not violated.
Equality is not sacrificed as long as the burdens engendered by the limitations are meant to be borne by any one who is minded to file
a certificate of candidacy. In the case at bar, there is no showing that any person is exempt from the limitations or the burdens which
they create.
Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the Omnibus Election Code and
COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their presumed validity stands and has to be accorded due weight.
Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26, Article II of the Constitution is misplaced.
The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced
a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are
rational, objective, and orderly. Towards this end, the State takes into account the practical considerations in conducting elections.
Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased
allocation of time and resources in preparation for the election. These practical difficulties should, of course, never exempt the State
from the conduct of a mandated electoral exercise. At the same time, remedial actions should be available to alleviate these logistical
hardships, whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency, but a rot
that erodes faith in our democratic institutions. As the United States Supreme Court held:
[T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of support
before printing the name of a political organization and its candidates on the ballot – the interest, if no other, in avoiding
confusion, deception and even frustration of the democratic [process]. 11
The COMELEC itself recognized these practical considerations when it promulgated Resolution No. 6558 on 17 January 2004,
adopting the study Memorandum of its Law Department dated 11 January 2004. As observed in the COMELEC’s Comment:
There is a need to limit the number of candidates especially in the case of candidates for national positions because the
election process becomes a mockery even if those who cannot clearly wage a national campaign are allowed to run. Their
names would have to be printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots. These
would entail additional costs to the government. For the official ballots in automated counting and canvassing of votes, an
additional page would amount to more or less FOUR HUNDRED FIFTY MILLION PESOS (₱450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage a decent campaign enough to
project the prospect of winning, no matter how slim.12
The preparation of ballots is but one aspect that would be affected by allowance of "nuisance candidates" to run in the elections. Our
election laws provide various entitlements for candidates for public office, such as watchers in every polling place, 13 watchers in the
board of canvassers,14 or even the receipt of electoral contributions. 15Moreover, there are election rules and regulations the
formulations of which are dependent on the number of candidates in a given election.
Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling. The organization of an
election with bona fide candidates standing is onerous enough. To add into the mix candidates with no serious intentions or
capabilities to run a viable campaign would actually impair the electoral process. This is not to mention the candidacies which are
palpably ridiculous so as to constitute a one-note joke. The poll body would be bogged by irrelevant minutiae covering every step of
the electoral process, most probably posed at the instance of these nuisance candidates. It would be a senseless sacrifice on the part of
the State.
Owing to the superior interest in ensuring a credible and orderly election, the State could exclude nuisance candidates and need not
indulge in, as the song goes, "their trips to the moon on gossamer wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling State interest to ensure orderly and
credible elections by excising impediments thereto, such as nuisance candidacies that distract and detract from the larger purpose. The
COMELEC is mandated by the Constitution with the administration of elections 16 and endowed with considerable latitude in adopting
means and methods that will ensure the promotion of free, orderly and honest elections. 17 Moreover, the Constitution guarantees that
only bona fide candidates for public office shall be free from any form of harassment and discrimination. 18 The determination of bona
fidecandidates is governed by the statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus Election Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance involved are, their proper application in the case of the petitioner cannot be tested
and reviewed by this Court on the basis of what is now before it. The assailed resolutions of the COMELEC do not direct the Court to
the evidence which it considered in determining that petitioner was a nuisance candidate. This precludes the Court from reviewing at
this instance whether the COMELEC committed grave abuse of discretion in disqualifying petitioner, since such a review would
necessarily take into account the matters which the COMELEC considered in arriving at its decisions.
Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing his credentials as an eligible
candidate for the presidency. Yet this Court, not being a trier of facts, can not properly pass upon the reproductions as evidence at this
level. Neither the COMELEC nor the Solicitor General appended any document to their respective Comments.
The question of whether a candidate is a nuisance candidate or not is both legal and factual. The basis of the factual determination is
not before this Court. Thus, the remand of this case for the reception of further evidence is in order.
A word of caution is in order. What is at stake is petitioner’s aspiration and offer to serve in the government. It deserves not a cursory
treatment but a hearing which conforms to the requirements of due process.
As to petitioner’s attacks on the validity of the form for the certificate of candidacy, suffice it to say that the form strictly complies
with Section 74 of the Omnibus Election Code. This provision specifically enumerates what a certificate of candidacy should contain,
with the required information tending to show that the candidate possesses the minimum qualifications for the position aspired for as
established by the Constitution and other election laws.
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to the COMELEC for the
reception of further evidence, to determine the question on whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as
contemplated in Section 69 of the Omnibus Election Code.
The COMELEC is directed to hold and complete the reception of evidence and report its findings to this Court with deliberate
dispatch.
SO ORDERED.
ARMANDO G. YRASUEGUI, G.R. No. 168081
Petitioner,
Present:
YNARES-SANTIAGO, J.,Chairperson,
- versus - AUSTRIA-MARTINEZ,
7
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

Promulgated:
PHILIPPINE AIRLINES, INC.,
Respondent. October 17, 2008

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

DECISION

REYES, R.T., J.:

THIS case portrays the peculiar story of an international flight steward who was dismissed because of his failure to adhere to
the weight standards of the airline company.

He is now before this Court via a petition for review on certiorari claiming that he was illegally dismissed. To buttress his
stance, he argues that (1) his dismissal does not fall under 282(e) of the Labor Code; (2) continuing adherence to the weight standards
of the company is not a bona fide occupational qualification; and (3) he was discriminated against
because other overweight employees were promoted instead of being disciplined.

After a meticulous consideration of all arguments pro and con, We uphold the legality of dismissal. Separation pay, however, should
be awarded in favor of the employee as an act of social justice or based on equity. This is so because his dismissal is not for serious
misconduct. Neither is it reflective of his moral character.

The Facts

Petitioner Armando G. Yrasuegui was a former international flight steward of Philippine Airlines, Inc. (PAL). He stands five
feet and eight inches (58) with a large body frame. The proper weight for a man of his height and body structure is from 147 to 166
pounds, the ideal weight being 166 pounds, as mandated by the Cabin and Crew Administration Manual [1] of PAL.

The weight problem of petitioner dates back to 1984. Back then, PAL advised him to go on an extended vacation leave
from December 29, 1984 to March 4, 1985 to address his weight concerns. Apparently, petitioner failed to meet the companys weight
standards, prompting another leave without pay from March 5, 1985 to November 1985.

After meeting the required weight, petitioner was allowed to return to work. But petitioners weight problem recurred. He
again went on leave without pay from October 17, 1988 to February 1989.

On April 26, 1989, petitioner weighed 209 pounds, 43 pounds over his ideal weight. In line with company policy, he was
removed from flight duty effective May 6, 1989to July 3, 1989. He was formally requested to trim down to his ideal weight and report
for weight checks on several dates. He was also told that he may avail of the services of the company physician should he wish to do
so. He was advised that his case will be evaluated on July 3, 1989.[2]

On February 25, 1989, petitioner underwent weight check. It was discovered that he gained, instead of losing, weight. He was
overweight at 215 pounds, which is 49 pounds beyond the limit. Consequently, his off-duty status was retained.

On October 17, 1989, PAL Line Administrator Gloria Dizon personally visited petitioner at his residence to check on the
progress of his effort to lose weight. Petitioner weighed 217 pounds, gaining 2 pounds from his previous weight. After the visit,
petitioner made a commitment[3] to reduce weight in a letter addressed to Cabin Crew Group Manager Augusto Barrios. The letter, in
full, reads:

Dear Sir:

I would like to guaranty my commitment towards a weight loss from 217 pounds to 200 pounds from today
until 31 Dec. 1989.

From thereon, I promise to continue reducing at a reasonable percentage until such time that my ideal
weight is achieved.

Likewise, I promise to personally report to your office at the designated time schedule you will set for my
weight check.

Respectfully Yours,
F/S Armando Yrasuegui[4]

Despite the lapse of a ninety-day period given him to reach his ideal weight, petitioner remained overweight. On January 3,
1990, he was informed of the PAL decision for him to remain grounded until such time that he satisfactorily complies with the weight
standards. Again, he was directed to report every two weeks for weight checks.

8
 Petitioner failed to report for weight checks. Despite that, he was given one more month to comply with the weight
requirement. As usual, he was asked to report for weight check on different dates. He was reminded that his grounding would continue
pending satisfactory compliance with the weight standards.[5]

Again, petitioner failed to report for weight checks, although he was seen submitting his passport for processing at
the PAL Staff Service Division.

On April 17, 1990, petitioner was formally warned that a repeated refusal to report for weight check would be dealt with
accordingly. He was given another set of weight check dates. [6] Again, petitioner ignored the directive and did not report for weight
checks. On June 26, 1990, petitioner was required to explain his refusal to undergo weight checks.[7]

When petitioner tipped the scale on July 30, 1990, he weighed at 212 pounds. Clearly, he was still way over his ideal weight
of 166 pounds.

From then on, nothing was heard from petitioner until he followed up his case requesting for leniency on the latter part of
1992. He weighed at 219 pounds on August 20, 1992 and 205 pounds on November 5, 1992.

On November 13, 1992, PAL finally served petitioner a Notice of Administrative Charge for violation of company standards
on weight requirements. He was given ten (10) days from receipt of the charge within which to file his answer and
submit controverting evidence.[8]

On December 7, 1992, petitioner submitted his Answer. [9] Notably, he did not deny being overweight. What he claimed,
instead, is that his violation, if any, had already been condoned by PAL since no action has been taken by the company regarding his
case since 1988. He also claimed that PAL discriminated against him because the company has not been fair in treating the cabin crew
members who are similarly situated.

On December 8, 1992, a clarificatory hearing was held where petitioner manifested that he was undergoing a weight
reduction program to lose at least two (2) pounds per week so as to attain his ideal weight.[10]

On June 15, 1993, petitioner was formally informed by PAL that due to his inability to attain his ideal weight, and
considering the utmost leniency extended to him which spanned a period covering a total of almost five (5) years, his services were
considered terminated effective immediately.[11]

His motion for reconsideration having been denied,[12] petitioner filed a complaint for illegal dismissal against PAL.

Labor Arbiter, NLRC and CA Dispositions

On November 18, 1998, Labor Arbiter Valentin C. Reyes ruled[13] that petitioner was illegally dismissed. The dispositive part
of the Arbiter ruling runs as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered, declaring the complainants
dismissal illegal, and ordering the respondent to reinstate him to his former position or substantially equivalent one,
and to pay him:

a. Backwages of Php10,500.00 per month from his dismissal on June 15, 1993 until reinstated, which for
purposes of appeal is hereby set from June 15, 1993 up to August 15, 1998 at P651,000.00;

b. Attorneys fees of five percent (5%) of the total award.

SO ORDERED.[14]

The Labor Arbiter held that the weight standards of PAL are reasonable in view of the nature of the job of petitioner.
[15]
However, the weight standards need not be complied with under pain of dismissal since his weight did not hamper the performance
of his duties.[16] Assuming that it did, petitioner could be transferred to other positions where his weight would not be a negative factor.
[17]
Notably, other overweight employees, i.e., Mr. Palacios, Mr. Cui, and Mr. Barrios, were promoted instead of being disciplined. [18]

Both parties appealed to the National Labor Relations Commission (NLRC).[19]

On October 8, 1999, the Labor Arbiter issued a writ of execution directing the reinstatement of petitioner without loss of
seniority rights and other benefits.[20]

On February 1, 2000, the Labor Arbiter denied[21] the Motion to Quash Writ of Execution[22] of PAL.

On March 6, 2000, PAL appealed the denial of its motion to quash to the NLRC.[23]

On June 23, 2000, the NLRC rendered judgment[24] in the following tenor:

WHEREFORE, premises considered[,] the Decision of the Arbiter dated 18 November 1998 as modified
by our findings herein, is hereby AFFIRMED and that part of the dispositive portion of said decision concerning
9
 complainants entitlement to backwages shall be deemed to refer to complainants entitlement to his
full backwages, inclusive of allowances and to his other benefits or their monetary equivalent instead of
simply backwages, from date of dismissal until his actual reinstatement or finality hereof. Respondent is enjoined to
manifests (sic) its choice of the form of the reinstatement of complainant, whether physical or through payroll within
ten (10) days from notice failing which, the same shall be deemed as complainants reinstatement through payroll
and execution in case of non-payment shall accordingly be issued by the Arbiter. Both appeals of respondent thus,
are DISMISSED for utter lack of merit.[25]

According to the NLRC, obesity, or the tendency to gain weight uncontrollably regardless of the amount of food intake, is a
disease in itself.[26] As a consequence, there can be no intentional defiance or serious misconduct by petitioner to the lawful order
of PAL for him to lose weight.[27]

Like the Labor Arbiter, the NLRC found the weight standards of PAL to be reasonable. However, it found as unnecessary the
Labor Arbiter holding that petitioner was not remiss in the performance of his duties as flight steward despite being
overweight. According to the NLRC, the Labor Arbiter should have limited himself to the issue of whether the failure of petitioner to
attain his ideal weight constituted willful defiance of the weight standards of PAL.[28]

PAL moved for reconsideration to no avail. [29] Thus, PAL elevated the matter to the Court of Appeals (CA) via a petition
for certiorari under Rule 65 of the 1997 Rules of Civil Procedure.[30]

By Decision dated August 31, 2004, the CA reversed[31] the NLRC:

WHEREFORE, premises considered, we hereby GRANT the petition. The assailed NLRC decision is
declared NULL and VOID and is hereby SET ASIDE. The private respondents complaint is hereby
DISMISSED. No costs.

SO ORDERED.[32]

The CA opined that there was grave abuse of discretion on the part of the NLRC because it looked at wrong and irrelevant
considerations[33] in evaluating the evidence of the parties. Contrary to the NLRC ruling, the weight standards of PAL are meant to be
a continuing qualification for an employees position.[34] The failure to adhere to the weight standards is an analogous cause for the
dismissal of an employee under Article 282(e) of the Labor Code in relation to Article 282(a). It is not willful disobedience as the
NLRC seemed to suggest.[35] Said the CA, the element of willfulness that the NLRC decision cites is an irrelevant consideration in
arriving at a conclusion on whether the dismissal is legally proper. [36] In other words, the relevant question to ask is not one of
willfulness but one of reasonableness of the standard and whether or not the employee qualifies or continues to qualify under this
standard.[37]

Just like the Labor Arbiter and the NLRC, the CA held that the weight standards of PAL are reasonable.[38] Thus, petitioner was legally
dismissed because he repeatedly failed to meet the prescribed weight standards. [39] It is obvious that the issue of discrimination was
only invoked by petitioner for purposes of escaping the result of his dismissal for being overweight. [40]

On May 10, 2005, the CA denied petitioners motion for reconsideration. [41] Elaborating on its earlier ruling, the CA held that
the weight standards of PAL are a bona fide occupational qualification which, in case of violation, justifies an employees separation
from the service.[42]

Issues

In this Rule 45 petition for review, the following issues are posed for resolution:

I.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING
THAT PETITIONERS OBESITY CAN BE A GROUND FOR DISMISSAL UNDER PARAGRAPH (e) OF
ARTICLE 282 OF THE LABOR CODE OF THE PHILIPPINES;

II.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING
THAT PETITIONERS DISMISSAL FOR OBESITY CAN BE PREDICATED ON THE BONA FIDE
OCCUPATIONAL QUALIFICATION (BFOQ) DEFENSE;

III.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER WAS
NOT UNDULY DISCRIMINATED AGAINST WHEN HE WAS DISMISSED WHILE OTHER OVERWEIGHT
CABIN ATTENDANTS WERE EITHER GIVEN FLYING DUTIES OR PROMOTED;

IV.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED WHEN IT BRUSHED ASIDE
PETITIONERS CLAIMS FOR REINSTATEMENT [AND] WAGES ALLEGEDLY FOR BEING
MOOT AND ACADEMIC.[43] (Underscoring supplied)

Our Ruling

10
 I. The obesity of petitioner is a ground for dismissal under Article 282(e) [44] of the Labor Code.

A reading of the weight standards of PAL would lead to no other conclusion than that they constitute a continuing qualification of an
employee in order to keep the job. Tersely put, an employee may be dismissed the moment he is unable to comply with his ideal
weight as prescribed by the weight standards. The dismissal of the employee would thus fall under Article 282(e) of the Labor
Code. As explained by the CA:

x x x [T]he standards violated in this case were not mere orders of the employer; they were the prescribed weights
that a cabin crew must maintain in order to qualify for and keep his or her position in the company. In other
words, they were standards that establish continuing qualifications for an employees position. In this sense, the
failure to maintain these standards does not fall under Article 282(a) whose express terms require the element of
willfulness in order to be a ground for dismissal. The failure to meet the employers qualifying standards is in fact a
ground that does not squarely fall under grounds (a) to (d) and is therefore one that falls under Article 282(e) the
other causes analogous to the foregoing.

By its nature, these qualifying standards are norms that apply prior to and after an employee is hired. They
apply prior to employment because these are the standards a job applicant must initially meet in order to be
hired. They apply after hiring because an employee must continue to meet these standards while on the job in order
to keep his job. Under this perspective, a violation is not one of the faults for which an employee can be dismissed
pursuant to pars. (a) to (d) of Article 282; the employee can be dismissed simply because he no longer qualifies for
his job irrespective of whether or not the failure to qualify was willful or intentional. x x x[45]

Petitioner, though, advances a very interesting argument. He claims that obesity is a physical abnormality and/or illness. [46] Relying
on Nadura v. Benguet Consolidated, Inc.,[47] he says his dismissal is illegal:

Conscious of the fact that Naduras case cannot be made to fall squarely within the specific causes enumerated in
subparagraphs 1(a) to (e), Benguet invokes the provisions of subparagraph 1(f) and says that Naduras illness
occasional attacks of asthma is a cause analogous to them.

Even a cursory reading of the legal provision under consideration is sufficient to convince anyone that, as the trial
court said, illness cannot be included as an analogous cause by any stretch of imagination.

It is clear that, except the just cause mentioned in sub-paragraph 1(a), all the others expressly enumerated in the law
are due to the voluntary and/or willful act of the employee. How Nadurasillness could be considered as analogous to
any of them is beyond our understanding, there being no claim or pretense that the same was contracted through his
own voluntary act.[48]

The reliance on Nadura is off-tangent. The factual milieu in Nadura is substantially different from the case at bar. First, Nadura was
not decided under the Labor Code. The law applied in that case was Republic Act (RA) No. 1787. Second, the issue of flight safety is
absent in Nadura, thus, the rationale there cannot apply here. Third, in Nadura, the employee who was a miner, was laid off from
work because of illness, i.e., asthma. Here, petitioner was dismissed for his failure to meet the weight standards of PAL. He was not
dismissed due to illness. Fourth, the issue in Nadura is whether or not the dismissed employee is entitled to separation pay and
damages. Here, the issue centers on the propriety of the dismissal of petitioner for his failure to meet the weight standards
of PAL. Fifth, in Nadura, the employee was not accorded due process. Here, petitioner was accorded utmost leniency. He was given
more than four (4) years to comply with the weight standards of PAL.

In the case at bar, the evidence on record militates against petitioners claims that obesity is a disease. That he was able to
reduce his weight from 1984 to 1992 clearly shows that it is possible for him to lose weight given the proper attitude, determination,
and self-discipline. Indeed, during the clarificatory hearing on December 8, 1992, petitioner himself claimed that [t]he issue is could I
bring my weight down to ideal weight which is 172, then the answer is yes. I can do it now. [49]

True, petitioner claims that reducing weight is costing him a lot of expenses. [50] However, petitioner has only himself to
blame. He could have easily availed the assistance of the company physician, per the advice of PAL.[51] He chose to ignore the
suggestion. In fact, he repeatedly failed to report when required to undergo weight checks, without offering a valid explanation. Thus,
his fluctuating weight indicates absence of willpower rather than an illness.

Petitioner cites Bonnie Cook v. State of Rhode Island, Department of Mental Health, Retardation and Hospitals,
[52]
decided by the United States Court of Appeals (First Circuit). In that case, Cook worked from 1978 to 1980 and from 1981 to 1986
as an institutional attendant for the mentally retarded at the Ladd Center that was being operated by respondent. She twice resigned
voluntarily with an unblemished record. Even respondent admitted that her performance met the Centers legitimate expectations. In
1988, Cook re-applied for a similar position. At that time, she stood 52 tall and weighed over 320 pounds. Respondent claimed that the
morbid obesity of plaintiff compromised her ability to evacuate patients in case of emergency and it also put her at greater risk of
serious diseases.

Cook contended that the action of respondent amounted to discrimination on the basis of a handicap. This was in direct
violation of Section 504(a) of the Rehabilitation Act of 1973, [53] which incorporates the remedies contained in Title VI of the Civil
Rights Act of 1964. Respondent claimed, however, that morbid obesity could never constitute a handicap within the purview of the
Rehabilitation Act. Among others, obesity is a mutable condition, thus plaintiff could simply lose weight and rid herself of
concomitant disability.

11
 The appellate Court disagreed and held that morbid obesity is a disability under the Rehabilitation Act and that respondent
discriminated against Cook based on perceived disability. The evidence included expert testimony that morbid obesity is a
physiological disorder. It involves a dysfunction of both the metabolic system and the neurological appetite suppressing signal system,
which is capable of causing adverse effects within the musculoskeletal, respiratory, and cardiovascular systems. Notably, the Court
stated that mutability is relevant only in determining the substantiality of the limitation flowing from a given impairment, thus
mutability only precludes those conditions that an individual can easily and quickly reverse by behavioral alteration.

Unlike Cook, however, petitioner is not morbidly obese. In the words of the District Court for the District of Rhode Island,
Cook was sometime before 1978 at least one hundred pounds more than what is considered appropriate of her height. According to the
Circuit Judge, Cook weighed over 320 pounds in 1988. Clearly, that is not the case here.At his heaviest, petitioner was only less than
50 pounds over his ideal weight.

In fine, We hold that the obesity of petitioner, when placed in the context of his work as flight attendant, becomes an
analogous cause under Article 282(e) of the Labor Code that justifies his dismissal from the service. His obesity may not be
unintended, but is nonetheless voluntary. As the CA correctly puts it, [v]oluntariness basically means that the just cause is solely
attributable to the employee without any external force influencing or controlling his actions. This element runs through all just causes
under Article 282, whether they be in the nature of a wrongful action or omission. Gross and habitual neglect, a recognized just cause,
is considered voluntary although it lacks the element of intent found in Article 282(a), (c), and (d).[54]

II. The dismissal of petitioner can be predicated on the bona fide occupational qualification defense.

Employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin unless the employer can
show that sex, religion, or national origin is an actual qualification for performing the job. The qualification is called a bona fide
occupational qualification (BFOQ).[55] In the United States, there are a few federal and many state job discrimination laws that contain
an exception allowing an employer to engage in an otherwise unlawful form of prohibited discrimination when the action is based on a
BFOQ necessary to the normal operation of a business or enterprise.[56]
Petitioner contends that BFOQ is a statutory defense. It does not exist if there is no statute providing for it. [57] Further, there is
no existing BFOQ statute that could justify his dismissal.[58]

Both arguments must fail.

First, the Constitution,[59] the Labor Code,[60] and RA No. 7277[61] or the Magna Carta for Disabled
[62]
Persons contain provisions similar to BFOQ.

Second, in British Columbia Public Service Employee Commission (BSPSERC) v. The British Columbia Government and Service
Employees Union (BCGSEU),[63] the Supreme Court of Canada adopted the so-called Meiorin Test in determining whether an
employment policy is justified. Under this test, (1) the employer must show that it adopted the standard for a purpose rationally
connected to the performance of the job;[64] (2) the employer must establish that the standard is reasonably necessary [65] to the
accomplishment of that work-related purpose; and (3) the employer must establish that the standard is reasonably necessary in order to
accomplish the legitimate work-related purpose. Similarly, in Star Paper Corporation v. Simbol,[66] this Court held that in order to
justify a BFOQ, the employer must prove that (1) the employment qualification is reasonably related to the essential operation of the
job involved; and (2) that there is factual basis for believing that all or substantially all persons meeting the qualification would be
unable to properly perform the duties of the job.[67]

In short, the test of reasonableness of the company policy is used because it is parallel to BFOQ. [68] BFOQ is
valid provided it reflects an inherent quality reasonably necessary for satisfactory job performance.[69]

In Duncan Association of Detailman-PTGWTO v. Glaxo Wellcome Philippines, Inc.,[70] the Court did not hesitate to pass upon
the validity of a company policy which prohibits its employees from marrying employees of a rival company. It was held that the
company policy is reasonable considering that its purpose is the protection of the interests of the company against possible competitor
infiltration on its trade secrets and procedures.

Verily, there is no merit to the argument that BFOQ cannot be applied if it has no supporting statute. Too, the Labor Arbiter,
[71]
NLRC,[72] and CA[73] are one in holding that the weight standards of PAL are reasonable. A common carrier, from the nature of its
business and for reasons of public policy, is bound to observe extraordinary diligence for the safety of the passengers it transports. [74] It
is bound to carry its passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious
persons, with due regard for all the circumstances. [75]

The law leaves no room for mistake or oversight on the part of a common carrier. Thus, it is only logical to hold that the
weight standards of PAL show its effort to comply with the exacting obligations imposed upon it by law by virtue of being a common
carrier.
The business of PAL is air transportation. As such, it has committed itself to safely transport its passengers. In order to
achieve this, it must necessarily rely on its employees, most particularly the cabin flight deck crew who are on board the aircraft. The
weight standards of PAL should be viewed as imposing strict norms of discipline upon its employees.

In other words, the primary objective of PAL in the imposition of the weight standards for cabin crew is flight safety. It
cannot be gainsaid that cabin attendants must maintain agility at all times in order to inspire passenger confidence on their ability to
care for the passengers when something goes wrong. It is not farfetched to say that airline companies, just like all common carriers,
thrive due to public confidence on their safety records. People, especially the riding public, expect no less than that
airline companiestransport their passengers to their respective destinations safely and soundly. A lesser performance is unacceptable.

The task of a cabin crew or flight attendant is not limited to serving meals or attending to the whims and caprices of the
passengers. The most important activity of the cabin crew is to care for the safety of passengers and the evacuation of the aircraft
12
when an emergency occurs. Passenger safety goes to the core of the job of a cabin attendant. Truly, airlines need cabin attendants who
have the necessary strength to open emergency doors, the agility to attend to passengers in cramped working conditions, and the
stamina to withstand grueling flight schedules.

On board an aircraft, the body weight and size of a cabin attendant are important factors to consider in case of
emergency. Aircrafts have constricted cabin space, and narrow aisles and exit doors. Thus, the arguments of respondent
that [w]hether the airlines flight attendants are overweight or not has no direct relation to its mission of transporting passengers to their
destination; and that the weight standards has nothing to do with airworthiness of respondents airlines, must fail.

The rationale in Western Air Lines v. Criswell[76] relied upon by petitioner cannot apply to his case. What was involved there
were two (2) airline pilots who were denied reassignment as flight engineers upon reaching the age of 60, and a flight engineer who
was forced to retire at age 60. They sued the airline company, alleging that the age-60 retirement for flight engineers violated the Age
Discrimination in Employment Act of 1967. Age-based BFOQ and being overweight are not the same. The case of overweight cabin
attendants is another matter. Given the cramped cabin space and narrow aisles and emergency exit doors of the airplane, any
overweight cabin attendant would certainly have difficulty navigating the cramped cabin area.

In short, there is no need to individually evaluate their ability to perform their task. That an obese cabin attendant occupies
more space than a slim one is an unquestionable fact which courts can judicially recognize without introduction of evidence. [77] It
would also be absurd to require airline companies to reconfigure the aircraft in order to widen the aisles and exit doors just to
accommodate overweight cabin attendants like petitioner.

The biggest problem with an overweight cabin attendant is the possibility of impeding passengers from evacuating the
aircraft, should the occasion call for it. The job of a cabin attendant during emergencies is to speedily get the passengers out of the
aircraft safely. Being overweight necessarily impedes mobility. Indeed, in an emergency situation, seconds are what cabin attendants
are dealing with, not minutes. Three lost seconds can translate into three lost lives. Evacuation might slow down just because a wide-
bodied cabin attendant is blocking the narrow aisles. These possibilities are not remote.

Petitioner is also in estoppel. He does not dispute that the weight standards of PAL were made known to him prior to his
employment. He is presumed to know the weight limit that he must maintain at all times. [78] In fact, never did he question the authority
of PAL when he was repeatedly asked to trim down his weight. Bona fides exigit ut quodconvenit fiat. Good faith demands that what is
agreed upon shall be done. Kung ang tao ay tapat kanyang tutuparin ang napagkasunduan.

Too, the weight standards of PAL provide for separate weight limitations based on height and body frame for both male and
female cabin attendants. A progressive discipline is imposed to allow non-compliant cabin attendants sufficient opportunity to meet
the weight standards. Thus, the clear-cut rules obviate any possibility for thecommission of abuse or arbitrary action on the part
of PAL.

III. Petitioner failed to substantiate his claim that he was discriminated against by PAL.

Petitioner next claims that PAL is using passenger safety as a convenient excuse to discriminate against him. [79] We are
constrained, however, to hold otherwise. We agree with the CA that [t]he element of discrimination came into play in this case as a
secondary position for the private respondent in order to escape the consequence of dismissal that being overweight entailed. It is a
confession-and-avoidance position that impliedly admitted the cause of dismissal, including the reasonableness of the applicable
standard and the private respondents failure to comply. [80] It is a basic rule in evidence that each party must prove his affirmative
allegation.[81]
Since the burden of evidence lies with the party who asserts an affirmative allegation, petitioner has to prove his allegation
with particularity. There is nothing on the records which could support the finding of discriminatory treatment. Petitioner cannot
establish discrimination by simply naming the supposed cabin attendants who are allegedly similarly situated with him. Substantial
proof must be shown as to how and why they are similarly situated and the differential treatment petitioner got from PAL despite the
similarity of his situation with other employees.

Indeed, except for pointing out the names of the supposed overweight cabin attendants, petitioner miserably failed to indicate their
respective ideal weights; weights over their ideal weights; the periods they were allowed to fly despite their being overweight; the
particular flights assigned to them; the discriminating treatment they got from PAL; and other relevant data that could have adequately
established a case of discriminatory treatment by PAL. In the words of the CA, PAL really had no substantial case of discrimination to
meet.[82]

We are not unmindful that findings of facts of administrative agencies, like the Labor Arbiter and the NLRC, are accorded
respect, even finality.[83] The reason is simple: administrative agencies are experts in matters within their specific and specialized
jurisdiction.[84] But the principle is not a hard and fast rule. It only applies if the findings of facts are duly supported by substantial
evidence. If it can be shown that administrative bodies grossly misappreciated evidence of such nature so as to compel a conclusion to
the contrary, their findings of facts must necessarily be reversed. Factual findings of administrative agencies do not have infallibility
and must be set aside when they fail the test of arbitrariness. [85]

Here, the Labor Arbiter and the NLRC inexplicably misappreciated evidence. We thus annul their findings.

To make his claim more believable, petitioner invokes the equal protection clause guaranty [86] of the Constitution. However,
in the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked. [87] Put differently, the Bill
of Rights is not meant to be invoked against acts of private individuals. [88] Indeed, the United States Supreme Court, in interpreting the
Fourteenth Amendment,[89] which is the source of our equal protection guarantee, is consistent in saying that

13
the equal protection erects no shield against private conduct, however discriminatory or wrongful. [90] Private actions, no matter how
egregious, cannot violate the equal protection guarantee. [91]

IV. The claims of petitioner for reinstatement and wages are moot.

As his last contention, petitioner avers that his claims for reinstatement and wages have not been mooted. He is entitled to
reinstatement and his full backwages, from the time he was illegally dismissed up to the time that the NLRC was reversed by the CA.
[92]

At this point, Article 223 of the Labor Code finds relevance:

In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the
reinstatement aspect is concerned, shall immediately be executory, even pending appeal. The employee shall either
be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at
the option of the employer, merely reinstated in the payroll. The posting of a bond by the employer shall not stay the
execution for reinstatement provided herein.

The law is very clear. Although an award or order of reinstatement is self-executory and does not require a writ of execution,
[93]
the option to exercise actual reinstatement or payroll reinstatement belongs to the employer. It does not belong to the employee, to
the labor tribunals, or even to the courts.

Contrary to the allegation of petitioner that PAL did everything under the sun to frustrate his immediate return to his previous
position,[94] there is evidence that PAL opted to physically reinstate him to a substantially equivalent position in accordance with the
order of the Labor
Arbiter.[95] In fact, petitioner duly received the return to work notice on February 23, 2001, as shown by his signature.[96]

Petitioner cannot take refuge in the pronouncements of the Court in a case [97] that [t]he unjustified refusal of the employer to
reinstate the dismissed employee entitles him to payment of his salaries effective from the time the employer failed to reinstate him
despite the issuance of a writ of execution[98] and even if the order of reinstatement of the Labor Arbiter is reversed on appeal, it is
obligatory on the part of the employer to reinstate and pay the wages of the employee during the period of appeal until reversal by the
higher court.[99] He failed to prove that he complied with the return to work order of PAL. Neither does it
appear on record that he actually rendered services for PAL from the moment he was dismissed, in order to insist on the payment of
his full backwages.

In insisting that he be reinstated to his actual position despite being overweight, petitioner in effect wants to render the issues
in the present case moot. He asks PAL to comply with the impossible. Time and again, the Court ruled that the law does not exact
compliance with the impossible.[100]

V. Petitioner is entitled to separation pay.

Be that as it may, all is not lost for petitioner.

Normally, a legally dismissed employee is not entitled to separation pay. This may be deduced from the language of Article
279 of the Labor Code that [a]n employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary
equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. Luckily for
petitioner, this is not an ironclad rule.

Exceptionally, separation pay is granted to a legally dismissed employee as an act social justice, [101] or based on equity.[102] In
both instances, it is required that the dismissal (1) was not for serious misconduct; and (2) does not reflect on the moral character of
the employee.[103]

Here, We grant petitioner separation pay equivalent to one-half (1/2) months pay for every year of service. [104] It should
include regular allowances which he might have been receiving. [105] We are not blind to the fact that he was not dismissed for any
serious misconduct or to any act which would reflect on his moral character. We also recognize that his employment with PAL lasted
for more or less a decade.

WHEREFORE, the appealed Decision of the Court of Appeals is AFFIRMED but MODIFIED in that petitioner Armando
G. Yrasuegui is entitled to separation pay in an amount equivalent to one-half (1/2) months pay for every year of service, which
should include his regular allowances.

SO ORDERED.

14