Secretary of National Defense vs.

Manalo

Brothers Raymond and Reynaldo Manalo were abducted by military men belonging to the CAFGU
on the suspicion that they were members and supporters of the NPA. After 18 months of detention
and torture, the brothers escaped on August 13, 2007.

Ten days after their escape, they filed a Petition for Prohibition, Injunction, and Temporary
Restraining Order to stop the military officers and agents from depriving them of their right to
liberty and other basic rights. While the said case was pending, the Rule on the Writ of Amparo
took effect on October 24, 2007. The Manalos subsequently filed a manifestation and omnibus
motion to treat their existing petition as amparo petition.

On December 26, 2007, the Court of Appeals granted the privilege of the writ of amparo. The CA
ordered the Secretary of National Defense and the Chief of Staff of the AFP to furnish the Manalos
and the court with all official and unofficial investigation reports as to the Manalos’ custody,
confirm the present places of official assignment of two military officials involved, and produce all
medical reports and records of the Manalo brothers while under military custody. The Secretary of
National Defense and the Chief of Staff of the AFP appealed to the SC seeking to reverse and set
aside the decision promulgated by the CA.

HELD:

In upholding the CA decision, the Supreme Court ruled that there is a continuing violation of the Manalos
right to security. xxx The Writ of Amparo is the most potent remedy available to any person whose right
to life, liberty, and security has been violated or is threatened with violation by an unlawful act or
omission by public officials or employees and by private individuals or entities. xxx Understandably,
since their escape, the Manalos have been under concealment and protection by private citizens because
of the threat to their life, liberty, and security. The circumstances of respondents’ abduction, detention,
torture and escape reasonably support a conclusion that there is an apparent threat that they will again be
abducted, tortured, and this time, even executed. These constitute threats to their liberty, security, and life,
actionable through a petition for a writ of amparo,” the Court explained. (GR No. 180906, The Secretary
of National Defense v. Manalo, October 7, 2008)

Distinguish the production order under the Rule on the Writ of Amparo from a search warrant.

SUGGESTED ANSWER:

The production order under the Rule on the Writ of Amparo should not be confused with a search warrant
for law enforcement under Art. III, sec. 2 of the 1987 Constitution. It said that the production order should
be likened to the production of documents or things under sec. 1, Rule 27 of the Rules of Civil Procedure
which states that “upon motion of any party showing good cause therefor, the court in which an action is
pending may (a) order any party to produce and permit the inspection and copying or photographing, by
or on behalf of the moving party, of any designated documents, papers, books of accounts, letters,
photographs, objects or tangible things, not privileged, which constitute or contain evidence material to
any matter involved in the action and which are in his possession, custody or control.” (GR No. 180906,
The Secretary of National Defense v. Manalo, October 7, 2008)

RODRIGUEZ VS ARROYO
FACTS: Noriel Rodriguez (petitioner) is a member of Alyansa Dagiti
Mannalon Iti Cagayan, a peasant organization affiliated with Kilusang
Magbubukid ng Pilipinas (KMP).

Under the Oplan Bantay Laya, the military tagged KMP members as an
enemy of the state, making its members an easy target of extra-judicial
killings and enforced disappearances.

On September 6, 2009, Rodriguez just alighted from a tricycle driven by

Hermie Antonio Carlos in Brgy. Tapel, Cagayan, when 4 men forcibly took
him and forced him to get inside a car where more men in civilian clothing
were waiting (1 was holding a .45 caliber pistol).
The men started punching Rodriguez inside the car, and forced him to
confess that he is a member of the New People’s Army (NPA). Rodriguez
remained silent until they reached a military camp belonging to the 17th
Infantry Battalion of the Philippine Army.

Rodriguez was then subjected to beatings and torture by members of the

Philippine Army. Members of the army wanted him to admit that he is an
NPA member and then pinpoint other NPA members and camp locations.
Since Rodriguez cannot answer, he is repeatedly beaten and tortured.
Rodriguez was also coerced to sign several documents to declare that he is a
surenderree.

On September 17, 2009, Rodriguez’s mother and brother came to see him
(accompanied by members of the CHR – Pasicolan, Cruz and Callagan).
They insisted to take Rodriguez home with them to Manila.

Rodriguez arrived in Manila on September 18. Callagan and 2 military

members went inside their house and took pictures for around 30 minutes
despite Rodriguez’s effort to stop them.
On November 3, Rodriguez and his girlfriend notices that several suspicious-
looking men are following them on the streets, jeepney and MRT.

On December 7, Rodriguez filed a Petition for the Writ of Amparo and

Petition for the Writ of Habeas Data with Prayers for Protection Orders,
Inspection of Place, and Production of Documents and Personal Properties
dated 2 December 2009.

The petition was filed against former President Arroyo, Gen. Ibrado, PDG.
Versoza, Lt. Gen. Bangit, Major General (Maj. Gen.) Nestor Z. Ochoa,
P/CSupt. Tolentino, P/SSupt. Santos, Col. De Vera, 1st Lt. Matutina, Calog,
George Palacpac, Cruz, Pasicolan and Callagan.

Respondents contend that Rodriguez is a double agent, and had been working
as their informant/infiltrator in the fight against NPA rebels.

Then President Gloria Macapagal-Arroyo, through the solicitor-general,

insisted on her immunity from suits (by virtue of her position as president).

Supreme Court granted the writs after finding that the petition sufficiently
alleged the abduction and torture of Rodriguez by members of the Philippine
Army. SC directed the Court of Appeals to hear the petition.

CA ruled in favor of Rodriguez and found Ibrado, Versoza, Bangit, Ochoa,

Tolentino, Santos, De Vera and Matutina liable for his abduction and torture.
As to Calog and Palacpac, the case was dismissed for lack of merit. On
President Arroyo, the case was dismissed on account of her immunity from
suits.

ISSUE:

1. WON President Arroyo should be dropped as a respondent by virtue of

her presidential immunity from suit
2. WON the doctrine of command responsibility can be used in writs of
amparo and habeas data cases.
HELD:
(1) CA’s rationale does not stand anymore since the presidential immunity
from suits only applies during her incumbency. “Incumbent Presidents are
immune from suit or from being brought to court during the period of their
incumbency and tenure but not beyond.”

“A non-sitting President does not enjoy immunity from suit, even for acts
committed during the latter’s tenure. We emphasize our ruling therein that
courts should look with disfavor upon the presidential privilege of immunity,
especially when it impedes the search for truth or impairs the vindication of a
right.”

Term vs Tenure: The term means the time during which the officer may
claim to hold the office as of right, and fixes the interval after which the
several incumbents shall succeed one another.
The tenure represents the term during which the incumbent actually holds
office. The tenure may be shorter than the term for reasons within or beyond
the power of the incumbent. The intent of the framers of the 1987
Constitution is to limit the president’s immunity from suits during their
tenure (and not term).

“It is clear that former President Arroyo cannot use the presidential immunity
from suit to shield herself from judicial scrutiny that would assess whether,
within the context of amparo proceedings, she was responsible or accountable
for the abduction of Rodriguez.”

(2) Yes. The doctrine of command responsibility may be used to determine

whether respondents are accountable for and have the duty to address the
abduction of Rodriguez in order to enable the courts to devise remedial
measures to protect his rights.

Proceedings under the Rule on the Writ of Amparo do not determine

criminal, civil or administrative liability, but this should not abate the
applicability of the doctrine of command responsibility.

“In the context of amparo proceedings, responsibility may refer to the

participation of the respondents, by action or omission, in enforced
disappearance. Accountability, on the other hand, may attach to respondents
who are imputed with knowledge relating to the enforced disappearance and
who carry the burden of disclosure; or those who carry, but have failed to
discharge, the burden of extraordinary diligence in the investigation of the
enforced disappearance.”

“Despite maintaining former President Arroyo in the list of respondents in

G.R. No. 191805, and allowing the application of the command responsibility
doctrine to amparo and habeas data proceedings, Rodriguez failed to prove
through substantial evidence that former President Arroyo was responsible or
accountable for the violation of his rights to life, liberty and property. He
likewise failed to prove through substantial evidence the accountability or
responsibility of respondents Maj. Gen. Ochoa, Cruz, Pasicolan and
Callagan.”

SC affirmed the decision of the CA, but with modifications. The case is
dismissed with respect to respondents former President Gloria Macapagal-
Arroyo, P/CSupt. Ameto G. Tolentino, and P/SSupt. Jude W. Santos, Calog,
George Palacpac, Antonio Cruz, Aldwin Pasicolan and Vicent Callagan for
lack of merit.

Rubrico vs. Arroyo

February 18, 2010

FACTS:

Rubrico, in her petition, said she was abducted on April 3, 2007 by armed men belonging
to the 301st Air Intelligence and Security Squadron, based at the Philippine Air Force
Field Station at Fernando Air Base in Lipa City, Batangas. During her detention, the
petitioner added, her daughters Mary Joy Rubrico Carbonel and Jean Rubrico Apruebo
were harassed by Senior Insp. Arsenio Gomez and that there were also armed men
following them. The petitioners prayed that a writ of amparo be issued, ordering the
individual respondents to desist from performing any threatening act against the security
of the petitioners and for the Office of the Ombudsman (OMB) to immediately file an
information for kidnapping qualified with the aggravating circumstance of gender of the
offended party. It also prayed for damages and for respondents to produce documents
submitted to any of them on the case of Lourdes.
The respondents then filed a joint return on the writ specifically denying the material
inculpatory averments against them. Respondents interposed the defense that the
President may not be sued during her incumbency.

Petitioners pleaded back to be allowed to present evidence ex parte against the President,
et al.

By a separate resolution, the CA dropped the President as respondent in the case .

ISSUE:

WHETHER OR NOT the [CA] committed reversible error in dismissing [their] Petition
and dropping President Gloria Macapagal Arroyo as party respondent.

HELD:

The presidential immunity from suit remains preserved under our system of government,
albeit not expressly reserved in the present constitution. Addressing a concern of his co-
members in the 1986 Constitutional Commission on the absence of an express provision
on the matter, Fr. Joaquin Bernas, S.J. observed that it was already understood in
jurisprudence that the President may not be sued during his or her tenure.

Settled is the doctrine that the President, during his tenure of office or actual incumbency,
may not be sued in any civil or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of the President, the
Head of State, if he can be dragged into court litigations while serving as such.

The Court also affirmed the dismissal of the amparo case against other respondents for
failure of the petition to allege ultimate facts as to make out a case against that body for
the enforced disappearance of Lourdes and the threats and harassment that followed.

RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID

SUZARA, Petitioners,

vs

ST. THERESA’S COLLEGE, MYLENE RHEZA T. ESCUDERO, and

JOHN DOES, Respondents.

G.R. No. 202666 September 29, 2014

TOPIC: right to informational privacy, writ of habeas data

PONENTE: Velasco, Jr.

PREFATORY:

The individual’s desire for privacy is never absolute, since participation in

society is an equally powerful desire. Thus each individual is continually
engaged in a personal adjustment process in which he balances the desire for
privacy with the desire for disclosure and communication of himself to
others, in light of the environmental conditions and social norms set by the
society in which he lives.

– Alan Westin, Privacy and Freedom (1967)

FACTS:

Julia and Julienne, both minors, were graduating high school students at St.
Theresa’s College (STC), Cebu City. Sometime in January 2012, while
changing into their swimsuits for a beach party they were about to attend,
Julia and Julienne, along with several others, took digital pictures of
themselves clad only in their undergarments. These pictures were then
uploaded by Angela on her Facebook profile.

At STC, Mylene Escudero, a computer teacher at STC’s high school

department, learned from her students that some seniors at STC posted
pictures online, depicting themselves from the waist up, dressed only in
brassieres. Escudero then asked her students if they knew who the girls in the
photos are. In turn, they readily identified Julia and Julienne, among others.

Using STC’s computers, Escudero’s students logged in to their respective

personal Facebook accounts and showed her photos of the identified students,
which include: (a) Julia and Julienne drinking hard liquor and smoking
cigarettes inside a bar; and (b) Julia and Julienne along the streets of Cebu
wearing articles of clothing that show virtually the entirety of their black
brassieres.
 Also, Escudero’s students claimed that there were times when access to or the
availability of the identified students’ photos was not confined to the girls’
Facebook friends, but were, in fact, viewable by any Facebook user.

Investigation ensued. Then Julia, Julienne and other students involved were
barred from joining the commencement exercises.

Petitioners, who are the respective parents of the minors, filed a Petition for
the Issuance of a Writ of Habeas Data. RTC dismissed the petition for habeas
data on the following grounds:

1. Petitioners failed to prove the existence of an actual or threatened violation of

the minors’ right to privacy, one of the preconditions for the issuance of the
writ of habeas data.
2. The photos, having been uploaded on Facebook without restrictions as to
who may view them, lost their privacy in some way.
3. STC gathered the photographs through legal means and for a legal purpose,
that is, the implementation of the school’s policies and rules on discipline.

ISSUE:

Whether or not there was indeed an actual or threatened violation of the right
to privacy in the life, liberty, or security of the minors involved in this case.
(Is there a right to informational privacy in online social network activities of
its users?)

HELD: (Note that you can skip the preliminary discussions and check the
ruling at the latter part)

Nature of Writ of Habeas Data

It is a remedy available to any person whose right to privacy in life, liberty or

security is violated or threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person,
family, home and correspondence of the aggrieved party.

It is an independent and summary remedy designed to protect the image,

privacy, honor, information, and freedom of information of an individual, and
 to provide a forum to enforce one’s right to the truth and to informational
privacy. It seeks to protect a person’s right to control information regarding
oneself, particularly in instances in which such information is being collected
through unlawful means in order to achieve unlawful ends.

In developing the writ of habeas data, the Court aimed to protect an

individual’s right to informational privacy, among others. A comparative law
scholar has, in fact, defined habeas data as “a procedure designed to
safeguard individual freedom from abuse in the information age.”

Issuance of writ of habeas data; requirements

1. The existence of a person’s right to informational privacy

2. An actual or threatened violation of the right to privacy in life, liberty or
security of the victim (proven by at least substantial evidence)

Note that the writ will not issue on the basis merely of an alleged
unauthorized access to information about a person.

The writ of habeas data is not only confined to cases of extralegal killings
and enforced disappearances

The writ of habeas data can be availed of as an independent remedy to

enforce one’s right to privacy, more specifically the right to informational
privacy. The remedies against the violation of such right can include the
updating, rectification, suppression or destruction of the database or
information or files in possession or in control of respondents. Clearly then,
the privilege of the Writ of Habeas Data may also be availed of in cases
outside of extralegal killings and enforced disappearances.

Meaning of “engaged” in the gathering, collecting or storing of data or

information

Habeas data is a protection against unlawful acts or omissions of public

officials and of private individuals or entities engaged in gathering,
collecting, or storing data about the aggrieved party and his or her
correspondences, or about his or her family. Such individual or entity need
not be in the business of collecting or storing data.
To “engage” in something is different from undertaking a business
endeavour. To “engage” means “to do or take part in something.” It does
not necessarily mean that the activity must be done in pursuit of a
business. What matters is that the person or entity must be gathering,
collecting or storing said data or information about the aggrieved party or his
or her family. Whether such undertaking carries the element of regularity, as
when one pursues a business, and is in the nature of a personal endeavour, for
any other reason or even for no reason at all, is immaterial and such will not
prevent the writ from getting to said person or entity.

As such, the writ of habeas data may be issued against a school like STC.

Right to informational privacy

Right to informational privacy is the right of individuals to control

information about themselves. Several commentators regarding privacy and
social networking sites, however, all agree that given the millions of OSN
users, “in this Social Networking environment, privacy is no longer grounded
in reasonable expectations, but rather in some theoretical protocol better
known as wishful thinking.” So the underlying question now is: Up to what
extent is the right to privacy protected in OSNs?

Facebook Privacy Tools

To address concerns about privacy, but without defeating its purpose,

Facebook was armed with different privacy tools designed to regulate
the accessibility of a user’s profile as well as information uploaded by the
user. In H v. W, the South Gauteng High Court recognized this ability of the
users to “customize their privacy settings,” but did so with this caveat:
“Facebook states in its policies that, although it makes every effort to protect
a user’s information, these privacy settings are not foolproof.”

For instance, a Facebook user can regulate the visibility and accessibility of
digital images (photos), posted on his or her personal bulletin or “wall,”
except for the user’s profile picture and ID, by selecting his or her desired
privacy setting:
1. Public – the default setting; every Facebook user can view the photo;
2. Friends of Friends – only the user’s Facebook friends and their friends can
view the photo;
3. Friends – only the user’s Facebook friends can view the photo;
4. Custom – the photo is made visible only to particular friends and/or networks
of the Facebook user; and
5. Only Me – the digital image can be viewed only by the user.

The foregoing are privacy tools, available to Facebook users, designed to set
up barriers to broaden or limit the visibility of his or her specific profile
content, statuses, and photos, among others, from another user’s point of
view. In other words, Facebook extends its users an avenue to make the
availability of their Facebook activities reflect their choice as to “when and
to what extent to disclose facts about themselves – and to put others in the
position of receiving such confidences.”

LONE ISSUE:

NONE. The Supreme Court held that STC did not violate petitioners’
daughters’ right to privacy as the subject digital photos were viewable either
by the minors’ Facebook friends, or by the public at large.

Without any evidence to corroborate the minors’ statement that the images
were visible only to the five of them, and without their challenging
Escudero’s claim that the other students were able to view the photos, their
statements are, at best, self-serving, thus deserving scant consideration.

It is well to note that not one of petitioners disputed Escudero’s sworn

account that her students, who are the minors’ Facebook “friends,” showed
her the photos using their own Facebook accounts. This only goes to show
that no special means to be able to view the allegedly private posts were ever
resorted to by Escudero’s students, and that it is reasonable to assume,
therefore, that the photos were, in reality, viewable either by (1) their
Facebook friends, or (2) by the public at large.

Considering that the default setting for Facebook posts is “Public,” it can be
surmised that the photographs in question were viewable to everyone on
Facebook, absent any proof that petitioners’ children positively limited the
disclosure of the photograph. If such were the case, they cannot invoke the
protection attached to the right to informational privacy.

US v. Gines-Perez: A person who places a photograph on the Internet

precisely intends to forsake and renounce all privacy rights to such imagery,
particularly under circumstances such as here, where the Defendant did not
employ protective measures or devices that would have controlled access to
the Web page or the photograph itself.

United States v. Maxwell: The more open the method of transmission is, the
less privacy one can reasonably expect. Messages sent to the public at large
in the chat room or e-mail that is forwarded from correspondent to
correspondent loses any semblance of privacy.

The Honorable Supreme Court continued and held that setting a post’s or
profile detail’s privacy to “Friends” is no assurance that it can no longer be
viewed by another user who is not Facebook friends with the source of the
content. The user’s own Facebook friend can share said content or tag his or
her own Facebook friend thereto, regardless of whether the user tagged by the
latter is Facebook friends or not with the former. Also, when the post is
shared or when a person is tagged, the respective Facebook friends of the
person who shared the post or who was tagged can view the post, the privacy
setting of which was set at “Friends.” Thus, it is suggested, that a profile, or
even a post, with visibility set at “Friends Only” cannot easily, more so
automatically, be said to be “very private,” contrary to petitioners’
argument.

No privacy invasion by STC; fault lies with the friends of minors

Respondent STC can hardly be taken to task for the perceived privacy
invasion since it was the minors’ Facebook friends who showed the pictures
to Tigol. Respondents were mere recipients of what were posted. They did
not resort to any unlawful means of gathering the information as it was
voluntarily given to them by persons who had legitimate access to the said
posts. Clearly, the fault, if any, lies with the friends of the minors. Curiously
enough, however, neither the minors nor their parents imputed any violation
of privacy against the students who showed the images to Escudero.
Different scenario of setting is set on “Me Only” or “Custom”

Had it been proved that the access to the pictures posted were limited to the
original uploader, through the “Me Only” privacy setting, or that the user’s
contact list has been screened to limit access to a select few, through the
“Custom” setting, the result may have been different, for in such instances,
the intention to limit access to the particular post, instead of being
broadcasted to the public at large or all the user’s friends en masse, becomes
more manifest and palpable.

Meralco v Lim (2010) GR No 184769

J. Carpio-Morales

Facts:

A letter was sent to the Meralco admin department in bulacan denouncing Lim, an
administrative clerk. She was ordered to be transferred to Alabang due to concerns over
her safety. She complained under the premise that the transfer was a denial of her due
process. She wrote a letter stating that:

“It appears that the veracity of these accusations and threats to be [sic] highly suspicious,
doubtful or are just mere jokes if they existed at all.” She added, “instead of the
management supposedly extending favor to me, the net result and effect of management
action would be a punitive one.” She asked for deferment thereafter. Since
the company didn’t respond, she filed for a writ of habeas data in the Bulacan RTC due to
meralco’s omission of provding her with details about the report of the letter. To her, this
constituted a violation of her liberty and security. She asked for disclosure of the data and
measures for keeping the confidentiality of the data.

Meralco filed a reply saying that the jurisdiction was with the NLRC and that the petition
wasn’t in order.

Trial court ruled in her favor.

In the SC, Meralco petitioned that Habeas Data applies to entities engaged in the
gathering, collecting or storing of data or information regarding an aggrieved party’s
person, family or home
Issue: Is Habeas Data the right remedy for Lim?

Held: No, petition dismissed

Ratio:

“Section 1. Habeas Data. – The writ of habeas data is a remedy available to any person
whose right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee or of a private individual or
entity engaged in the gathering, collecting or storing of data or information regarding the
person, family, home and correspondence of the aggrieved party”

It’s a forum for enforcing one’s right to the truth. Like amparo, habeas data was a
response to killings and enforceddisappearances.

Castillo v Cruz- and habeas data will NOT issue to protect purely property or commercial
concerns nor when the grounds invoked in support of the petitions therefor are vague or
doubtful.

Employment is a property right in the due process clause. Lim was concerned with her
employment, one that can be solvedin the NLRC.

There was no violation of respondent’s right to privacy. Respondent even said that the
letters were mere jokes and even conceded the fact that the issue was labor related due to
references to “real intent of management”.

ELEGANCE, INC., petitioner,

vs.
COURT OF INDUSTRIAL RELATIONS, AIDA FLORENTINO, RUFlNO
TRINIDAD, MARIA IGNACIO, AURORA TRINIDAD, EMERENCIANA
SUÑGA, CEFERINA IGNACIO, LORENZA DIRECTO, ADORACION
FLORENTINO, ARSENIA MANIGAT, ROSITA LAURENTE, GODOFREDA
GUEVARRA, EMILIANA OPEÑA, CARMEN TABOY AND LUCIO
JAMUAD, respondents, ELEGANCE EMPLOYEES AND WORKERS
UNION, intervenor.

Fabian M. Baltazar for petitioner.

Eulogio R. Lerum for private respondents.

Narciso V. Cruz, Jr. for intervenor.

MAKALINTAL, J.:

This petition, filed both as a special civil action and by way of appeal, seeks a reversal of
the decision of the Court of Industrial Relations in Case No. 2379-ULP, ordering herein
petitioner to reinstate private respondents, with back wages until reinstatement.

The facts, as found by the Court of Industrial Relations, are as follows: Prior to the
dispute which gave rise to this case, herein private respondents — fourteen in all — were
employees of petitioner Elegance, Inc. and member of the PES Labor Association. In a
certification case (No. 713-MC) filed by the said Association, the Elegance Employees
and Workers Union, one of the intervenors therein, was certified by the Court of
Industrial Relations as the exclusive bargaining representative of the employees of
petitioner. By virtue of this certification petitioner and the Elegance Employees and
Workers Union entered into a collective bargaining contract on March 2, 1960,
containing the following provision:

SEC. 3. — THE COMPANY agrees to a UNIONSHOP; All present

employees and workers in the bargaining unit who are not now members of
the Union, must become members within thirty (30) days after the signing
of this agreement as a condition of continued employment, with the
exception of supervisors. If any dispute arises as to whether an employee or
worker is a member cf the UNION of good standing, this dispute shall be
disposed of as grievance in the manner herein provided.

The subsequent events, reproduced below, are narrated in the report of the hearing
examiner, which was subsequently adopted by the Court.

The evidence further shows that after the signing of the collective
bargaining agreement, a copy of same was posted at the bulletin board of
the company for all employees to see and read for themselves.
Subsequently, in a letter dated April 5, 1960, the contracting union
demanded from the management to dismiss from work the 14 complainants
herein allegedly for failure to affiliate themselves with the union within the
period provided for in the union-shop provision of the collective bargaining
agreement (Exh. "C"). The union also made threats that should respondent
violate any provision of the agreement, it would not hesitate to institute the
appropriate charges. So, in the afternoon of the same day (April 5, 1960),
 the Grievance Committee convened and discussed the demands of the
union contained in the said letter together with other matters taken up
during that occasion. As a result, on April 7, 1960, a notice signed by the
president of the company was again posted on the bulletin board, wherein it
was announced that effective April 8, 1960 the employees enumerated
therein (complainants) were considered resigned from their employment
(Exh. "B").

It is claimed by complainants that their separation from the service which

was effected by posting a notice on the bulletin board of the company was
illegal because, although they were already members of the PES Labor
Association, they, however, complied with the union-shop provision by
applying for membership with the Elegance Employees and Workers Union
within the prescribed period of 30 days, through a letter dated March 25,
1960, which they sent by registered mail.

An examination of the alleged letter sent by complainants showed that the

same was addressed to the Elegance Employees and Workers Union, but
the registry return receipt attached thereto does not show the date when the
letter was received by the addressee. The end of the thirty-day period
required by the union-shop is April 2, 1960. Considering that this date is so
close to the time when the letter of application was sent by registered mail
by complainants, the probability is that said application must have been
received by the union beyond the prescribed period, hence the intervenor
union decided to compel the company to dismiss complainants. . . .

The trial Judge, on his part, made the following additional observations:

The president of the Elegance, Inc. testified that in the morning of April 5,
1960 he received the letter of intervenor union, the Elegance Employees
and Workers Union, demanding for the dismissal of the 14 complainants,
with the admonition that "the union will not hesitate to institute proper
charges should the management violate any of the terms of the agreement, .
. ." (Exh. 2 Elegance). In the afternoon of the same day, the Grievance
Committee was convened to discuss, among other matters, the said demand
of the union. During that meeting, the company president stepped out to
confront Godofreda Guevarra about her not joining the union. She
answered him, in effect, that she would not join the union. The company
president testified that this decision of Guevarra was that of "all of them".
He further said:

"A. Immediately after my meeting with Godofreda Guevarra, I went back

to the (grievance) meeting and it was decided that we can do something
 about it, we have acceded to the request of the Elegance Employees and
Workers Union since they were the union."

The decision to immediately accede to the union demand for the dismissal
of complainants, made within several hours of the demand and without
having first asked each one of them after respondent company received the
letter of April 5, 1960, whether he or she has joined the union, was, to say
the least, hasty.

Petitioner has assigned two errors in the decision appealed from, namely: (1) "in holding
petitioner guilty of unfair labor practice notwithstanding the fact that the dismissal of the
14 respondent laborers was in pursuance to (sic) a valid union shop clause of the
collective bargaining contract; and (2) in awarding back wages to the 14 respondent
laborers and in not finding that the dismissal of the aforesaid respondents was done in
good faith."

In its brief petitioner does not question that part of the judgment ordering reinstatement,
but merely prays that said judgment be "modified by exonerating petitioner of the charge
of unfair labor practice and discarding therefrom the award of back wages."

The basic issue is whether or not the dismissal of the 14 respondents was justified in the
light of the facts and circumstances. The union shop clause in the bargaining contract is
clear enough. The employees must become members of the union within thirty (30) days
from the signing thereof as a condition of continued employment. In case of dispute as to
whether an employee is a member of the union in good standing, the dispute shall be
decided as a grievance in the manner provided, that is, before a grievance committee duly
constituted.

The important fact which cannot be ignored is that the private respondents did comply
with the union shop provision by applying for membership with the union within the
prescribed period of thirty days, by means of a letter dated March 25, 1960 and sent to
the said union by registered mail. This is a finding of the court below, which is not here
challenged, although the same court surmised that the letter must have been received
after, the thirty-day period ended on April 2, 1960. In other words, the letter had not yet
been received when the union demanded of petitioner, on April 5, 1960, that the
respondents be dismissed for their failure to affiliate. This fact, however, does not justify
the precipitate manner in which the dismissal was carried out, much less the continued
failure of petitioner to reinstate the employees involved.

In the first place, said employees were obviously not given a hearing in the grievance
committee. They were not present during its deliberations as the company president had
to step out to "confront Godofreda Guevarra (one of the respondents) about her not
joining the union." The other respondents had not been similarly questioned. Had they
been afforded the opportunity to be heard, it stands to reason that they would have
apprised petitioner of the fact that they had applied for membership in the union by
means of a registered letter posted before the deadline therefor expired, or at least their
definite attitude in the matter would have been clarified beyond any shadow of doubt. In
the second place, after the letter of affiliation was received, the reason for the dismissal
ceased to exist and reinstatement should have been the logical step to follow. Indeed
petitioner does not ask in this appeal that the order of the lower court for such
reinstatement be set aside, but only that the award of back wages be eliminated. In other
words, petitioner in effect agrees that private respondents have the right to be reinstated;
and it is therefore incomprehensible why up to the present, according to them, the order
of reinstatement has not been complied with. Such failure of compliance, despite the fact
that the said order is not now sought to be set aside, does not sit well with the plea for
exemption from the payment of back wages.

Petitioner tries to justify its actuation by citing the alleged threat of the union to file
appropriate charges against it unless the private respondents were dismissed. Such threat
was not a sufficient excuse. If anything, the filing of appropriate charges would have
opened the opportunity for the parties, including the employees concerned, to submit the
question of their status to the Court in the light of the new bargaining contract and in the
meantime avoid the drastic step taken against them. It should be noted that they were
already in the service, when the said contract was entered into, and that only a clear and
definite showing of their failure to affiliate with the union within the period fixed for that
purpose would justify their dismissal, assuming that the union shop clause was applicable
to them. Even this point, however, was not altogether free from doubt at the time, for it
ran counter to the spirit of the Industrial Peace Act which recognizes the right of the
employees to self-organization and to form, join or assist labor organizations of their own
choosing. And as a matter of fact the doubt was resolved in the case of Freeman Shirt
Manufacturing Co., Inc., et al. vs. CIR, et al., G.R. No. L-16561, decided on January 28,
1961, where this Court, construing a clause similar to the one involved in the case at bar,
said:

The closed-shop agreement authorized under Sec. 4 sub-sec. a(4) of the

Industrial Peace Act abovequoted should, however, apply only to persons to
be hired or to employees who are not yet members of any labor
organization. It is inapplicable to those already in the service who are
members of another union. To hold otherwise, i.e., that the employees in a
company who are members of a minority union may be compelled to
disaffiliate from their union and join the majority or contracting union,
would render nugatory the right of all employees to self-organization and to
form, join or assist labor organizations of their own choosing, a right
guaranteed by the Industrial Peace Act (Sec. 3, Republic Act No. 875) as
well as by the Constitution (Art. III, see. 1 [6]).
Petitioner's claim of good faith is belied by the fact that after the decision in the Freeman
case was promulgated some eight months after the present case was filed, petitioner still
refused to reinstate the private respondents, and persisted in its refusal even after
judgment was rendered by the trial Judge on October 6, 1964 and sustained by the
Court en banc on January 14, 1965.

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, but subject to
the proviso that whatever may have been earned by the private respondents in other
employment prior to their reinstatement in petitioner's employ shall be deducted from the
back wages adjudged in their favor. Costs against petitioner.

Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Castro, Fernando, Teehankee, Barredo,
Villamor and Makasiar, JJ., concur.

Gold City Integrated Port Service, Inc (INPORT) vs. NLRC

GR No. 103560

July 6, 1995

Facts: Petitioner’s employees stopped working and gathered in a mass action to express their grievances
regarding wages, thirteenth month pay and hazard pay. Said employees were all members of the
Macajalar Labor Union — Federation of Free Workers (MLU-FFW) with whom petitioner had an
existing collective bargaining agreement.

Petitioner was engaged in stevedoring and arrastre services at the port of Cagayan de Oro. The strike
paralyzed operations at said port.

The strikers filed individual notices of strike (“Kaugalingon nga Declarasyon sa Pag-Welga”) with the
then Ministry of Labor and Employment.

With the failure of conciliation conferences between petitioner and the strikers, INPORT filed a
complaint before the Labor Arbiter for Illegal Strike with prayer for a restraining order/preliminary
injunction.

The National Labor Relations Commission issued a temporary restraining order. Thereafter, majority of
the strikers returned to work, leaving herein private respondents who continued their protest.

For not having complied with the formal requirements in Article 264 of the Labor Code, 3 the strike
staged by petitioner’s workers on April 30, 1985 was found by the Labor Arbiter to be illegal. 4 The
workers who participated in the illegal strike did not, however, lose their employment, since there was no
evidence that they participated in illegal acts. After noting that petitioner accepted the other striking
employees back to work, the Labor Arbiter held that the private respondents should similarly be allowed
to return to work without having to undergo the required screening to be undertaken by their union
(MLU-FFW).

As regards the six private respondents who were union officers, the Labor Arbiter ruled that they could
not have possibly been “duped or tricked” into signing the strike notice for they were active participants
in the conciliation meetings and were thus fully aware of what was going on. Hence, said union officers
should be accepted back to work after seeking reconsideration from herein petitioner. 5

The NLRC affirmed with modification 8 the Arbiter’s decision. It held that the concerted action by the
workers was more of a “protest action” than a strike. Private respondents, including the six union officers,
should also be allowed to work unconditionally to avoid discrimination. However, in view of the strained
relations between the parties, separation pay was awarded in lieu of reinstatement.

Upon petitioner’s motion for reconsideration, public respondent modified the above resolution.

The Commission ruled that since private respondents were not actually terminated from service, there was
no basis for reinstatement. However, it awarded six months’ salary as separation pay or financial
assistance in the nature of “equitable relief.” The award for backwages was also deleted for lack of factual
and legal basis. In lieu of backwages, compensation equivalent to P1,000.00 was given.

Issue: Whether separation pay and backwages be awarded by public respondent NLRC to participants of
an illegal strike?

Held: Reinstatement and backwages or, if no longer feasible, separation pay, can only be granted if
sufficient bases exist under the law, particularly after a showing of illegal dismissal. However, while the
union members may thus be entitled under the law to be reinstated or to receive separation pay, their
expulsion from the union in accordance with the collective bargaining agreement renders the same
impossible.

Ratio: A strike, considered as the most effective weapon of labor, 13 is defined as any temporary stoppage
of work by the concerted action of employees as a result of an industrial or labor dispute. 14 A labor
dispute includes any controversy or matter concerning terms or conditions of employment or the
association or representation of persons in negotiating, fixing, maintaining, changing or arranging the
terms and conditions of employment, regardless of whether or not the disputants stand in the proximate
relation of employers and employees. 15

Private respondents and their co-workers stopped working and held the mass action on April 30, 1985 to
press for their wages and other benefits. What transpired then was clearly a strike, for the cessation of
work by concerted action resulted from a labor dispute.

The complaint before the Labor Arbiter involved the legality of said strike. The Arbiter correctly ruled
that the strike was illegal for failure to comply with the requirements of Article 264 (now Article 263)
paragraphs (c) and (f) of the Labor Code. 16
The individual notices of strike filed by the workers did not conform to the notice required by the law to
be filed since they were represented by a union (MLU-FFW) which even had an existing collective
bargaining agreement with INPORT.

Neither did the striking workers observe the strike vote by secret ballot, cooling-off period and reporting
requirements.

A union officer who knowingly participates in an illegal strike and any worker or union officer who
knowingly participates in the commission of illegal acts during a strike may be declared to have lost their
employment status. 20 An ordinary striking worker cannot be terminated for mere participation in an
illegal strike. There must be proof that he committed illegal acts during a strike. A union officer, on the
other hand, may be terminated from work when he knowingly participates in an illegal strike, and like
other workers, when he commits an illegal act during a strike.

In the case at bench, INPORT accepted the majority of the striking workers, including union officers,
back to work. Private respondents were left to continue with the strike after they refused to submit to the
“screening” required by the company.

Under Article 264 of the Labor Code, a worker merely participating in an illegal strike may not be
terminated from his employment. It is only when he commits illegal acts during a strike that he may be
declared to have lost his employment status. Since there appears no proof that these union members
committed illegal acts during the strike, they cannot be dismissed. The striking union members among
private respondents are thus entitled to reinstatement, there being no just cause for their dismissal.

However, considering that a decade has already lapsed from the time the disputed strike occurred, we find
that to award separation pay in lieu of reinstatement would be more practical and appropriate.

No backwages will be awarded to private respondent-union members as a penalty for their participation in
the illegal strike. Their continued participation in said strike, even after most of their co-workers had
returned to work, can hardly be rewarded by such an award.

The fate of private respondent-union officers is different. Their insistence on unconditional reinstatement
or separation pay and backwages is unwarranted and unjustified. For knowingly participating in an illegal
strike, the law mandates that a union officer may be terminated from employment. 34

Notwithstanding the fact that INPORT previously accepted other union officers and that the screening
required by it was uncalled for, still it cannot be gainsaid that it possessed the right and prerogative to
terminate the union officers from service. The law, in using the word may, grants the employer the option
of declaring a union officer who participated in an illegal strike as having lost his employment. 35
Moreover, an illegal strike which, more often than not, brings about unnecessary economic disruption and
chaos in the workplace should not be countenanced by a relaxation of the sanctions prescribed by law.

The union officers are, therefore, not entitled to any relief.

Dispositive: WHEREFORE, from the foregoing premises, the petition in G.R. No. 103560 (“Gold City
Integrated Port Service Inc. v. National Labor Relations Commission, et al.”) is GRANTED. One month
salary for each year of service until 1985 is awarded to private respondents who were not union officers
as separation pay. The petition in G.R. No. 103599 (“Adelo Ebuna, et al. v. National Labor Relations
Commission, et al.”) is DISMISSED for lack of merit. No costs.

LABREL CASE DIGEST POOL / ATTORNEY JHONELLE ESTRADA / MONDAYS / 5:30 PM TO

8:30 PM / NEW ERA UNIVERSITY COLLEGE OF LAW

Baker vs SSS

Appeal from the ruling of the Social Security Commission dismissing petition for reconsideration of an order
of respondent Social Security System.

Petitioner-appellant Franklin Baker Company of the Philippines is engaged in the manufacture of desiccated
coconut in San Pablo City. The deceased Tomas Zamora was one of its employees. Both were compulsory
members of the Social Security System.

Due to the annual overhauling of its machinery and also to lack of production orders from its mother company
in the United States petitioner temporarily ceased its operations from December 22, 1957 to February 18,
1958. Zamora rendered no actual services during that period. He then went on sick leave without pay from
March 9, 1958, up to the day of his death, June 13, 1958.

On July 10, 1958 the System received a death claim application from petitioner for and in behalf of the
designated beneficiaries of the deceased employee. After processing the claim the System found that no
premium remittances had been made for him for the months of February, March, and June, 1958. Of the
unpaid premiums, P5.85 was chargeable to the employee while P8.18 was due from the employer- petitioner.
The employee’s share of the unpaid premiums was subsequently deducted from the death benefits awarded to
his beneficiaries and the System billed petitioner for its share.

Under Resolution No. 139, Series of 1958, the Social Security Commission adopted the rule that "employers
are liable to the 3 1/2% company’s share during the months when there are no premiums remitted, if there is
existing employer-employee relationship between them during those months." Petitioner excepted to the
System’s demand for payment by filing a petition for reconsideration with the Commission. On April 28, 1960
the Commission resolved to dismiss said petition, and the case is now before us on appeal from the resolution
of dismissal.

Petitioner raises two issues: (1) that the employer is not liable for its share of the premiums during the period
when the employee is on leave without pay since he receives no compensation; and (2) that the adoption of a
"theoretical salary" basis upon which the employer’s liability of 3 1/2% is computed during the time that the
employee receives no compensation is erroneous.

The first issue has already been resolved by us in several cases. Insular Lumber Co. v. SSS, G.R. No. L-17623
Jan. 31, 1963; Roman Archbishop of Manila v. SSS, G.R. No. L-15045, Jan. 20, 1961; Insular Life Assurance
Co. Ltd., Et Al., v. SSS, G.R. No. L-16359, Dec. 28, 1961. In those cases we held: jgc:chanrobles.com.ph
". . . payment of contributions by an employer is compulsory during its coverage, and in accordance with the
provisions of Section 9 of the Social Security Act, coverage is determined solely by the existence of an
employer-employee relationship. While an employee is on leave, even without pay, he is still an employee of
his employer, their contract of employment has not yet terminated. So much so that the employee may still
return to work and the employer is still bound to accept him. His responsibility as an employee still exists. He
is still entitled to the benefits of the System when he returns. Consequently, his employer is still liable to pay
his contributions to the Commission on account of its employee who is on leave without pay." cralaw virtua1aw library

The ruling of the Commission adopting the "theoretical salary" basis assailed by petitioner under the second
issue raised by it in this appeal reads as follows: jgc:chanrobles.com.ph

"‘Neither does the absence of compensation for the employee for a particular month militate against the
adoption of a theoretical salary upon which the premium contributions are to be based. In such cases, this
Commission has adopted the policy that where an employee does not earn any compensation for a particular
month, the basis for his premium contributions shall be the salary for the month immediately preceding the
wageless month or, in case of a variable wage earner, then, it shall be his daily rate of compensation multiplied
by the number of days in which he would have worked for that wageless month (Circular Nos. 21 and 24). The
adoption of such a theoretical salary is justified on the ground that during the period when the employer-
employee relationship subsists, there is a legal obligation to remit premium contributions to the System for the
benefit of the employee." cralaw virtua1aw library

Petitioner contends that the adoption of the so-called "theoretical salary" basis is beyond the authority and
competence of the Social Security Commission, as it is not justified by the Social Security Act (R. A. 1161, as
amended by Act 1792), particularly section 19 thereof which defines the employer’s obligation to contribute to
the System. This section provides: jgc:chanrobles.com.ph

"SEC. 19. Employer’s contribution. — Beginning as of the last day of the month immediately preceding the
month when an employee’s compulsory coverage takes effect and every month thereafter during his
employment, his employer shall pay, with respect to such covered employee in his employ, a monthly
contribution equal to three and a half per centum of the monthly compensation of said covered employees.
Notwithstanding any contract to the contrary, an employer shall not deduct, directly or indirectly, from the
compensation of his employees covered by the System or otherwise recover from them the employer’s
contribution with respect to such employees. (As amended by Section 11, R.A. 1792)"

Since the deceased employee, Tomas Zamora, received no compensation for the period in question, petitioner
maintains that the imposition of a 3-1/2% monthly contribution upon the employer on the basis of the monthly
"theoretical" compensation is in effect a deviation from or an amendment of the statute, which only Congress
can make. We do not think this view is correct. The obligation of the employer to contribute its share to the
System is effective during the existence of the employer-employee relationship. This is already settled in
several cases (supra), and implicit in the provision aforequoted which says that the employer shall pay the 3-
1/2% contribution "beginning as of the last day of the month immediately preceding the month when an
employee’s compulsory coverage takes effect and every month thereafter during his employment . . . The time
when an employee may not be actually receiving compensation, as when he is on sick leave without pay, is not
excepted. Obviously, inasmuch as the obligation to contribute does not cease during that period, a reasonable
basis for computing the amount of the contribution must be adopted; and the one prescribed by the
Commission in its circular Nos. 21 and 24 and applied in the case at bar is reasonable, both on legal and
actuarial considerations. It does not amount to legislation, but merely implementation of the existing statute.
The provisions of the Social Security Act should be liberally construed in favor of those seeking its benefits.
"Any interpretation which would defeat rather than promote the ends for which the Social Security Act was
enacted should be eschewed." 1

The resolution appealed from, passed by the Social Security Commission on April 28, 1960, is affirmed, with
costs against Petitioner-Appellant.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera, Paredes, Dizon and
Regala, JJ., concur.

Tecson vs SSS

This is an appeal from a decision or ruling of the Social Security Commission denying
payment of death benefits to Jose P. Tecson, the beneficiary of an employee of
Yuyitung Publishing Company, by the name of Lim Hoc. chanroblesvirtualawlibrary chanrobles virtual law library

The facts as found by the Social Security Commission are as follows:

The facts attendant are as follows: The late Lim Hoc, a former employee of the
Yuyitung Publishing Company, was, at the time of his death on November 3, 1957, a
member of the System, having qualified as such on September 1, 1957. In the SSS-
Form E-1 accomplished and filed by him with the System, he gave his civil status as
married, but made no mention of the members of his family or other relatives. Instead,
he designated therein the petitioner Jose P. Tecson, reportedly a friend and co-worker
of his, as his beneficiary. After the death of Lim Hoc, petitioner, in his capacity as the
designated beneficiary, filed with the System a claim for death benefits. (ROA, p. 31).

In denying the petition of Tecson the Social Security Commission states that the
legislative policy underlying the system is to grant and afford protection to the
covered employee as well as his family; that while Section 13 of the law (Rep. Act
No. 1161 as amended) makes mention of the beneficiary as recorded by his employer,
it is not just anyone that the employee designates who may be appointed his
beneficiary because Section 24 (a) of the law clearly provides that the employer shall
report to the system the names, ages, civil status, salaries and dependents of
employees, and paragraph (a) of the same section provides that if an employee subject
to compulsory coverage should die or become sick or disabled without the System
having previously received a report about him from his employer, the said employer
shall pay to the employee or his legal heirs, damages, etc. chanroblesvirtualawlibrary chanrobles virtual law library

It may be true that the purpose of the coverage under the Social Security System is
protection of the employee as well as of his family, but this purpose or intention of the
law cannot be enforced to the extent of contradicting the very provisions of said law
as contained in Section 13, thereof, as follows:

Section 13. - Upon the covered employee's death or total and permanent disability
under such conditions as the Commission may define, before becoming eligible for
retirement and if either such death or disability is not compensable under the
Workmen's Compensation Act, he or, in case of his death, his beneficiaries as
recorded by his employer shall be entitled to the following benefit: ... (R.A. 1161 as
amended.)

When the provisions of a law are clear and explicit, the courts can do nothing but
apply its clear and explicit provisions. (Velasco v. Lopez, 1 Phil. 720; Caminetti vs.
U.S., 242 U.S. 470, 61 L. ed. 442).chanroblesvirtualawlibrary chanrobles virtual law library

It should be remembered that the benefits or compensation allowed an employee or

his beneficiary under the provisions of the Social Security Act are paid out of funds
which are contributed in part by the employees and in part by the employers'
(commercial or industrial companies members of the System). Sections 18 and 19 of
the Social Security Act (Republic Act No. 1161 as amended) provide that 2-�% of
the salary of an employee subject to compulsory coverage, shall be deducted and
withheld from his monthly compensation and paid over to the System, while the
employer for his part contributes another amount of 3-�% of the salary of said
employee. The contributions are collected by the System, which acts as the trustee of
such funds. It is provided also in the Act that of the total yearly collection not more
than 12% during the first two year of the operation of the System and not more than
10% during any year thereafter shall be disbursed for salaries and wages of the
employees of the System (Sec. 24). A certain percentage of the funds of the System
may be invested in interest-bearing bonds and deposits and in loans or advances to the
National Government (Sec. 25). As these funds are obtained from the employees and
the employers, without the Government having contributed any portion thereof, it
would be unjust for the System to refuse to pay the benefits to those whom the
employee has designated as his beneficiaries. The contribution of the employee is his
money; the contribution of the employer is for the benefit of the employee. Hence the
beneficiary should primarily be the one to profit by such contributions. This is what is
expressly provided in above-quoted Section 13 of the law. chanroblesvirtualawlibrary chanrobles virtual law library

It should also be noted that the Social Security System is not a law of succession. Its
purpose is to provide social security, which means funds for the beneficiary, if the
employee dies, or for the employee himself and his dependents if he is unable to
perform his task because of illness or disability, or is laid off by reason of the
termination of the employment, or because of temporary lay-off due to strike, etc. It
should also be remembered that the beneficiaries of the System are those who
dependent upon the employee for support. Section 23 of the law (before its
amendment by Republic Act No. 2658, which took effect on June 18, 1960) requires
the employer to report and transmit to the System such record of the names, ages, civil
status, occupations, salaries and dependents of all his employees. It is not the heirs of
the employee who are to receive the benefits or compensation. It is only in case the
benificiary is the estate, or if there is none designated, or if the designation is void,
that the System is required to pay the employee's heirs. Such is the express provision
of Section 15 of the same Act, as amended. chanroblesvirtualawlibrary chanrobles virtual law library

The Commission held that under its regulations, which are quoted below, the
employee must choose the beneficiaries from anyone of the persons enumerated
therein:

(a) The following persons may be designated as beneficiaries entitled to receive death
benefits provided they have been registered as such in the records of the System prior
to said employee's death, to wit: chanrobles virtual law library

(1) The legitimate widow or widower if not legally separated from the deceased; chanrobles virtual law library

(2) Legitimate and/or legitimated children; chanrobles virtual law library

(3) Grandchildren; chanrobles virtual law library

(4) Parents; chanrobles virtual law library

(5) Grandparents; chanrobles virtual law library

(6) Natural children duly acknowledged; chanrobles virtual law library

(7) Brothers and/or sisters; chanrobles virtual law library

(8) In the absence of any of the foregoing relatives, any other person designated by the
employee. (Rule 7, [3], of the Rules and Regulations of the Social Security System).

The above rule indicates the persons that may be designated as beneficiaries. The
deceased Lim Hoc must have designated Jose P. Tecson as his beneficiary under the
provisions of Section 23 of the Act. The employer must have received no information
from the deceased employee Lim Hoc about the existence of Lim Hoc's wife and
children, their names, ages, civil status, occupations, salaries, etc. It was subsequently
known that Lim Hoc had a wife and children in Communist China; the omission by
him of their existence and names in the records of the employer must have been due to
the fact that they were not at the time, at least, dependent upon him. If they were
actually dependents, their names would have appeared in the record of the employer.
The absence in the record of his employee of their existence and names must have
been due to the lack of communication, of which We can take judicial notice, between
Communist China and the Philippines, or to the express desire of Lim Hoc to extend
the benefits of his contributions to the system to his "friend and co-worker", to the
exclusion of his wife. It is to be noted also that the funeral expenses of Lim Hoc are to
be paid from the benefits, so that what is to be paid to Tecson would be greatly
reduced.chanroblesvirtualawlibrary chanrobles virtual law library

FOR ALL THE FOREGOING CONSIDERATIONS, the resolution should be, as it is

hereby, set aside and annulled, and the respondent System is hereby ordered to pay the
monetary claim of Jose P. Tecson. Without costs. chanroblesvirtualawlibrary chanrobles virtual law library

Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes,
Dizon and De Leon, JJ., concur.

JIMENEZ VS. REPUBLIC OF THE PHILIPPINES

109 Phil 273

FACTS:

Plaintiff Joel Jimenez filed a complaint praying of a decree annulling his

marriage with Remedios Canizares. He claimed that the orifice of her genitals was
too small to allow the penetration of a male organ or penis for copulation. He also
claimed that the condition of her genitals existed at the time of marriage and
continues to exist. The wife was summoned and served with a copy of the
complaint but she did not file an answer. The court entered an order requiring
defendant to submit to a physical examination by a competent lady physician to
determine her physical capacity for copulation. Defendant did not submit herself to
the examination and the court entered a decree annulling the marriage. The City
Attorney filed a Motion for Reconsideration, among the grounds that the
defendant’s impotency has not been satisfactorily established as required by law;
that she had not been physically examined because she refused to be examined.

ISSUE: Whether or not the marriage may be annulled on the strength only of the
lone testimony of the husband who claimed and testified that his wife is impotent.
HELD:

The law specifically enumerates the legal grounds that must be proved to
exist by indubitable evidence to annul a marriage. In the case at bar, the annulment
of the marriage in question was decreed upon the sole testimony of the husband
who was expected to give testimony tending or aiming at securing the annulment
of his marriage he sought and seeks. Whether the wife is really impotent cannot be
deemed to have been satisfactorily established because from the commencement of
the proceedings until the entry of the decree she had abstained from taking part
therein.

Although her refusal to be examined or failure to appear in court show

indifference on her part, yet from such attitude the presumption arising out of the
suppression of evidence could not arise or be inferred because women of this
country are by nature coy, bashful and shy and would not submit to a physical
examination unless compelled to by competent authority.

A physical examination in this case is not self-incriminating. She is not

charged with any offense . She is not being compelled to be a witness against
herself.

“Impotency being an abnormal condition should not be presumed. The

presumption is in favor of potency.” The lone testimony of the husband that his
wife is physically incapable of sexual intercourse is insufficient to tear asunder the
ties that have bound them together as husband and wife.

Ruling: The decree appealed from is set aside and the case remanded to the lower
court for further proceedings in accordance with this decision, without
pronouncement as to costs.
Tangonan vs Pano
Alleging that the Hon. respondent Judge 1 acted without or in excess of
jurisdiction and/or with grave abuse of discretion in dismissing 2 her petition for
mandamus 3 petitioner comes to Us thru the instant petition for "Certiorari with
Preliminary Mandatory Injunction with Damages" 4 raising the following issues—

1. Is his Honor guilty of grave abuse of discretion when he rendered the

questioned decision without any formal hearing ?

2. Is the extraordinary remedy of mandamus available to an aggrieved party who

was refused enrolment without lawful ground . . . expelled by private respondents
without affording her the opportunity to be heard . . . and excluded from enrolling,
while allowing others similarly situated, to enroll? and

3. Finally, is the decision of the respondent court conformable to law and the
evidence?

Hereunder are the pertinent antecedents.

Petitioner Mely Tangonan was temporarily admitted in May 1975 at the Capitol
Medical School of Nursing for the school year 1975-1976, as a second year
student subject to the submission of a sealed "Honorable Dismissal" and a
"Transcript of Records" valid for transfer. Her admission in said school was on
probationary basis having merely submitted an unsealed "Honorable Dismissal"
and a "Transcript of Records" not valid for transfer, on her promise that such
records will be immediately replaced with official acceptable records. She
enrolled for two (2) semesters. In her second semester, she flunked in
Psychiatric Nursing but was allowed to cross-enroll in said subject in Summer
1976 at the De Ocampo Memorial School. Obviously, petitioner had enrolment
problems at the De Ocampo Memorial School for she was reported to have
attempted to bribe Dean Florencia Pagador of the said school so that her name
could be included in the list of Summer 1976 enrolled students. This is confirmed
by petitioner's letter of apology which reads as follows—
Mrs. Florencia Pagador
Dean of De Ocampo Memorial
School of Nursing,
Nagtahan St., Sta. Mesa Blvd.
Sampaloc, Manila

Dear Ma'm:

I am awfully sorry for offering you P50,00 just to help me. I hope and
pray for your forgiveness. I wish to express my sincere apology. And
please allow me to get enrolled officially,

Thank you.

S
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s
,

(
S
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)

M
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 S

M
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On June 14, 1976, petitioner applied for re-enrolment at respondent school

(Capitol Medical Center School of Nursing) but was referred to the Guidance
Counsellor for the following reasons—

a. On the replacement of her admission records when she first enrolled in May
1976;

b. On the results of her cross-enrolment for summer 1976; and

c. For explanation of a reported charge (supported by a Xerox copy of her

apology to Dean Pagador) of attempting to bribe Dean Pagador.

Because of her refusal and/or failure, to submit the required explanation, the
matter of her re-admission was submitted to the school's Board of Admission.
Deliberating on petitioner's case, the Board of Admission, in a Meeting held on
June 25, 1976, 5 made the following recommendation—

RECOMMENDATION:

In view of the foregoing findings, the Board of Admission declared

her an undesirable student who should not be readmitted to CMCSN
but without prejudice to her being given transfer credentials to
another school.

SUBMITTED BY:

(Sgd) Benita Cortez

Minutes of the Board's deliberation on the matter which brought about said
recommendation runs thus—

AGENDA: Case of Mely Tangonan, nursing student who is seeking

re-admission to the School of Nursing.

Findings: During the deliberation of the Board, the following findings

were discussed:

A. ACADEMIC PERFORMANCE I

1. Admitted to the school on probation because of a failing mark in

Communicable Disease Nursing at the PCC-Mary Johnston Hospital
School of Nursing. EXHIBIT A)

2. Failed in Psychiatric Nursing during the second semester of

School Year 1975-1976. EXHIBIT B)

B. CLINICAL PERFORMANCE

1. Average in the clinical performance.

2. Did not complete clinical experience required in summer. Stopped

reporting in the clinical area without notifying the clinical instructor or
coordinator. (EXHIBIT C)

3. had frequent absences in the clinical area.

C. ATTITUDES AND BEHAVIORS

1. Did not seek enrolment or notify school registrar of a desire to

enroll during the scheduled registration dates for seniors. Came to
enroll daring the week after regular classes. (EXHIBIT D)

2. Tried to bribe Mrs. Pagador, Dean, College of Nursing, De

Ocampo Memorial School with P50.00 (Fifty Pesos) when she was
not yet officially enrolled when it was already the end of summer-
classes. EXHIBIT E)

3. Violated rules and regulations of the school.(EXHIBIT F)

4. Refused to write a letter to the Board of Admission requesting for

re-admission and apologizing for what she did against the Doms and
Dean Pagador which has brought embarrasment to CMCSN She
 was asked to make this letter to the Principal through a telephone
instruction to Mrs. Benita Cortez. Miss Tangonan allegedly stated
that she would write the letter only if she is given the assurance by
the Principal or by the Chairman of the Board of Trustees that she
would be allowed to enroll.

Informed of the said board's decision disallowing her re-admission, petitioner

lodged a complaint against the school before the Department of Education,
Regional Office No. 4. A conference was accordingly conducted between
petitioner and respondent school's authorities in the presence of Regional
Director Manuel in the course of which, petitioner agreed to transfer to another
school. But instead of transferring to another school, petitioner filed a petition for
mandamus 6 before the Court of First Instance of Rizal, Branch XVIII, presided
over by respondent Judge, praying that pending adjudication of the case on the
merit, an ex-parte order be issued commanding respondents to admit petitioner
to enroll and attend classes upon payment of the prescribed fees; and after
hearing, judgment be rendered requiring respondents to pay damages and
attorney's fees.

On July 27, 1977, the lower court issued the writ prayed for thereby "ordering
respondents to admit petitioner on probation basis for the school year 1976-1977
upon payment of the requisite fees and to attend classes" in respondent school. 7

In their Answer 8 filed on August 5, 1976, respondents alleged among others, by

way of special defenses—

That the then petition states no cause of action because of the

following circumstances:

a. Petitioner in the July 2, 1976 meeting at the office of Dr. Manuel

already agreed to transfer to another school and therefore without
condition, foreclosed her right to enroll at respondent school;

b. There has been no demand after July 1, 1976 by petitioner

directed to respondent school to admit her as required in mandamus
action;

c. To the extent, allowed by regulations and considering that

petitioner was not yet an enrolled student, and hence the school had
no jurisdiction vet to conduct any formal investigation and compel
her presence therein, petitioner was given all the opportunity as
early as June 14, 1976 to explain her side which privilege she
however refused to take advantage of, by being adamant in
 submitting any explanation, oral or in writing to certain offenses
made known to her, after having been compelled continuously to do
so at several levels by respondents.

That it is within the prerogative of private schools to deny admission

of students for scholastic insufficiency, incomplete scholastic records
and commission of an offense, like attempt to bribe, violating school
regulations.

The issues having been joined, the case was calendared for pre-trial on
September 22, 1976. The parties submitted their respective pre-trial briefs. 9 A
second pre-trial conference was held on October 7, 1976 on which date, the
court a quo issued the following Order 10 —

This is a second pre-trial conference of this case attended by the

parties and their respective counsel.

Considering that this is a petition for mandamus so that the issue is

limited to one of law, which is the question of whether respondent
school had any legal ground for refusing the petitioner, Mely
'Tangonan, and therefore there is no factual issue involved, the
parties are directed to submit to this Court not later than October 18,
1976, their respective affidavits and other pertinent documents they
may wish to submit, in addition to what already appears on record,
'This is however, without prejudice to the continuous effort of both
parties to settle this case. In this connection, the respondents have
undertaken to persuade some other nursing schools in Metro Manila
to admit the petitioner. If the plaintiff should agree to such admission
to some other school, then this Court will dismiss this case if
appropriate manifestations are made prior to October 22, 1976,
otherwise, the Court will decide the case on the merits before
October 22, 1976.

On October 8, 1976, respondents submitted a MANIFESTATION 11 stating therein

that upon representations of respondent Dra. Thelma Clemente, President and
Chairman of the Board of Trustees of respondent school, the College of Nursing
of the Ortañez University was willing to accept petitioner for enrolment therein,
subject to the approval of the Department of Education and Culture.

On October 18, 1976, petitioner and respondents submitted their respective

memoranda. 12
To the manifestation of respondent Thelma Clemente that Ortañez university was
willing to admit petitioner, the latter counter-manifested 13 that "in view of certain
policies and requirements of Ortañez University she has no recourse but to
demand her admission in Capitol Medical Center School of Nursing.

On October 22, 1976, the lower court rendered its decision 14 dismissing the
petition and dissolving the writ of preliminary mandatory injunction earlier issued.
Petitioner's motion for reconsideration 15 having been denied, 16 she now comes
before Us through the instant petition with the prayers aforesaid.

The petition is devoid of merit.

Petitioner's case in the court below is that of mandamus, to compel respondent to

admit petitioner in its School of Nursing. Under Rule 65, Section 3 of the Rules of
Court, mandamus lies under any of the following cases: (1) against any tribunal
which unlawfully neglects the performance of an act which the law specifically
enjoins as a duty; (2) in case any corporation, board or person unlawfully
neglects the performance of an act which the law enjoins as a duty resulting from
an office, trust or station; and (3) in case any tribunal, corporation, board or
person unlawfully excludes another from the use and enjoyment of a right or
office to which such other is legally entitled and there is no other plain, speedy
and adequate remedy in the ordinary course of law. 17

Mandamus is employed to compel the performance, when refused of a

ministerial duly, this being its main objective. It does not lie to require anyone to
fulfill contractual obligations or to compel a course of conduct, 18 nor to control or
review the exercise of discretion. 19

On the part of the party petitioner, 20 it is essential to the issuance of a writ of

mandamus that he should have a clear legal right to the thing demanded and it
must be the imperative duty of the respondent to perform the act required. It
never issues in doubtful cases. While it may not be necessary that the duty be
absolutely expressed, it must however, be clear. If the writ will not issue to
compel an official to do anything which it is not his duty to do or to which it is his
duty not to do, or give to the applicant anything to which he is not entitled by law.
The writ neither confers powers nor imposes duties. It is simply a command to
exercise a power already possessed and to perform a duty already imposed. 21

In the case at bar, the petitioner has miserably failed to show a clear legal right to
be admitted and be enrolled in respondent's School of Nursing. As correctly held
by the court a quo—
 Moreover assuming that respondent has a leal duty to enroll
petitioner, it does not appear to this Court that this is merely a
ministerial duty; it is rather a duty involving the exercise of discretion.
Every school has a right to determine who are the students it should
accept for enrolment. It has the right to judge the fitness of students
This is particularly true in the case of nursing students who perform
essential health services. Over and above its responsibility to
petitioner is the responsibility of the school to the general public and
the community. This Court take judicial notice that nursing has
become a popular course because of the great demand for Filipino
Nurses abroad, especially in the United States. It is essential
therefore that Nursing graduates who go abroad and become in a
sense our own ambassador should be highly qualified to perform
their tasks. This is the responsibility of our school and in the
discharge of this responsibility, they certainly should be given the
greatest latitude in formulating their admission policies.

While petitioner questions the findings of respondent school as to

her academic competence, the Court cannot find any legal
jurisdiction to interfere in the exercise of judgment of the school on
this matter. The Court finds it significant that even the Department of
Education and Culture refused to intervene in this case although the
Court qqqin its Order of July 6, 1976 invited the Department to send
its legal officer as earlier mentioned, it is not disputed that petitioner
agreed to transfer to another school during a conference held at the
Department.

The Court, after weighing all the facts, does not find that the p resent
case is one that calls for the application of Article 26 of the
Declaration of Human Rights. She is not being prevented from
completing her Nursing course. There are many nursing schools in
Metropolitan Manila where she can finish her course. But she must
enroll under the term, policies and conditions imposed by the
schools, rather than on her own terms. She is moreover free to enroll
in any of these schools. Respondent has not prevented her from
doing so, and has offered to assist in such transfer.

On the contrary, respondent School appeared perfectly justified in refusing to

admit petitioner in its School of Nursing. Its refusal is sanctioned by law. Section
107 of the Manual Regulations for Private Schools considers academic
delinquency and violation of disciplinary regulations as valid grounds for refusing
re-enrolment of a student. It is incontrovertible that petitioner flunked in
Psychiatric Nursing and that as of June 14, 1976, no official report of grades for
her summer course in the said subject was or could be submitted by her,
Likewise, undisputed, (in fact admitted in her letter of apology earlier quoted) is
her involvement in an attempt to bribe the dean of the De Ocampo School of
Nursing. She was admitted in respondent's school merely on probation because
she could not submit a sealed "Honorable Dismissal" and "Transcript of Records"
valid for transfer. On top of that she had a failing grade in Communicable
Disease Nursing at the PCC-Mary Johnston Hospital School of Nursing. Her
records in respondent's school also show that she did not complete the
prescribed clinical experience required in summer. She stopped reporting in the
clinical area without notifying the clinical instructor or coordinator. 22

The foregoing notwithstanding, still petitioner would want Us to compel

respondent school to enroll her despite her failure to meet the standard policies
and qualifications set by the school. To grant such relief would be doing violence
to the academic freedom enjoyed by the respondent school enshrined under
Article XV, Section 8, Par. 2 of our Constitution which mandates "that all
institutions of higher learning shall enjoy academic freedom." This institutional
academic freedom includes not only the freedom of professionally qualified
persons to inquire, discover, publish and teach the truth as they see it in the field
of their competence subject to no control or authority except of rational methods
by which truths and conclusions are sought and established in these disciplines,
but also the right of the school or college to decide for itself, its aims and
objectives, and how best to attain them—the grant being to institutions of higher
learning—free from outside coercion or interference save possibly when the
overriding public welfare calls for some restraint. It has a wide sphere of
autonomy certainly extending to the choice of students. Said constitutional
provision is not to be construed in a niggardly manner or in a grudging fashion.
That would be to frustrate its purpose and nullify its intent. 23

Elaborating further on the subject, this Court speaking thru that Eminent
Constitutionalist then Mr. Justice now the Hon. Chief Justice Enrique M.
Fernando 24 held—

Petitioner cannot compel by mandamus, the respondent to admit her

into further studies in the Loyola School of Theology. For respondent
has no clear duly to admit the petitioner. The Loyola School of
Theology is a seminary for the priesthood. Petitioner is admittedly
and obviously not studying for the priesthood, she being a lay
person and a woman. And even assuming ex gratia argumenti that
she is qualified to study for the priesthood, there is still no duty on
the part of respondent to admit her to said studies, since the school
has clearly the discretion to turn down even qualified applicants due
to limitations of space, facilities, professors and optimum classroom
 size and component considerations. No authorities were cited,
respondent apparently being of the view that the law has not
reached the stage when the matter of admission to an institution of
higher learning rests on the sole and uncontrolled discretion of the
applicant. There are standards that must be met. There are policies
to be pursued. Discretion appears to be of the essence. In terms of
Hohfeld's terminology, what a student in the position of the petitioner
possesses is a privilege rather than a right. She cannot therefore
satisfy the prime and indispensable requisite of a mandamus
proceeding. (Emphasis supplied)

Anent petitioner's submittal that respondent Judge acted without or in excess of

jurisdiction or with grave abuse of discretion in requiring the parties to submit
memoranda or affidavits, instead of setting the case for a formal hearing on the
merits—We find the same to be without merit. The very nature of the petition
dictates its expeditious determination. This is implicit from Section 7, Rule 65 of
the Rules of Court which provides:

Section 7. Expediting Proceedings; Preliminary Injunction.—The

court in which the petition is filed, or a judge thereof, may make
orders expediting the proceedings, and may also grant a preliminary
injunction for the preservation of the rights of the parties pending
such proceedings.

In the case at bar, it was evident that on the basis of the pleadings filed, the case
did not call for the formal presentation of evidence for purposes of determining
whether or not respondent school could legally be ordered to admit petitioner for
the school year 1976-1977. Petitioner's position appeared clearly stated in her
basic petition which was further amplified by her verified Position Paper dated
July 8, 1976: REPLY to the position paper of respondents dates July 23, 1976,
petitioner's Trial Brief dated September 9, 1976 and Memorandum dated October
18, 1976. Upon the other hand, respondents' stance appeared thoroughly spelled
out in their position paper dated July 21, 1976, Answer dated August 5, 1976,
respondent's Pre-Trial Brief dated September 20, 1976, Manifestation dated
October 8, 1976 and Memorandum dated October 18, 1976. Moreover, in the
second pre-trial conference held on October 7, 1976, the lower court declared
that "the issue is one of law and that there is no factual issue involved. Hence,
the parties were already required to submit their memoranda and the pertinent
documents in support of their respective stand. Petitioner did not question the
aforesaid order. Instead, she filed her memorandum. Consequently, she is now
estopped from asserting that she was denied the chance to present her evidence
in a formal hearing.
At any rate, as discussed earlier, petitioner is not legally entitled to the issuance
of the writ prayed for.

WHEREFORE, the instant petition is DISMISSED without pronouncement as to

costs.

SO ORDERED.

ARLEO E. MAGTIBAY, appellant,

vs.
Lt. Col. SANTIAGO GARCIA and Cadet Colonel MARCELO
JAVIER, respondents.

Leodegario I. Magtibay for appellant.

The Solicitor General for respondent.

ESCOLIN, J.:

Appeal from the order of the Court of First Instance of Rizal dismissing the
appellant's petition for mandamus and quo warranto.

The issue posed for determination is whether the courts may review the exercise
of discretion of a public officer on matters in which it is his duty to act. Appellant
contends that the lower court erred in refusing to review the actuations of Lt. Col.
Santiago Q. Garcia, commandant of the University of the Philippines ROTC as to
matters affecting the regulation and supervision of the U.P. ROTC Corps of
Cadets.

On March 12, 1966, Lt. Col. Santiago Q. Garcia, then Commander of the, U.P.
ROTC Cadet Corps, issued General Orders No. 23 relieving Arleo E. Magtibay of
the rank of cadet colonel and as battalion commander of the lst BCT of the U.P.
Cadet Corps, and designating in his stead Cadet Col. Marcelo Javier. In the
same order, Magtibay was excluded from the roll of the graduating class of the
ROTC Advance Course for having flunked the subject MS-42, a subject
necessary for the completion of the Advance Course.

On March 23, 1966, Magtibay filed with tile President of the University of the
Philippines an administrative case against Lt. Col. Garcia charging the latter with
abuse of discretion and seeking his relief as commandant of the U.P. ROTC
Cadet Corps. 1 The Honorable Carlos P. Romulo, then President of the U.P.,
appointed a committee to investigate the complaint and "to review the case of Mr.
Magtibay and to evaluate his scholastic record, including his examination papers,
if any, in MS-42, and to make recommendations in accordance with the
procedure described in paragraph 2, section 374 of the Revised U.P. Code." Said
committee, after due investigation, submitted its report to the U.P. President,
stating, among other things that

Records show that Mr. Magtibay got the following grades in MS 42

for second semester 1965-1966:

Subject Proficiency ............... 37.20%

Aptitude .................................. 0
Attendance............................. 26.00%
Total ..................................63.00%

Mr. Magtibay, due to various offenses to include major infractions of

regulations and/or instructions committed during the semester,
garnered a total of 140 demerits. Since 100 merits awarded each
cadet at the start of the semester if equivalent to 30%, Mr.
Magtibay's exhausting its 100 merits accounts for his getting "0"
under Aptitude. Adding together the total percentage of 63 is way
Wow the mum passing grade of 70% hence his failure in MS 42. 2

On the basis of said report, President Carlos P. Romulo of the University of the
Philippines issued a memorandum decision dismissing the complaint, "without
prejudice to re-enrollment of the complainant in the same course (MS-42), in
Accordance with existing regulations."

Apart from the administrative complaint adverted to, appellant Magtibay instituted
in the Court of First Instance of Rizal a petition for mandamus and quo warranto,
with prayer for preliminary mandatory injunction, against Lt. Col. Garcia and
Marcelo Javier, praying that Javier be relieved as battalion commander of the lst
BTC of the U.P. Cadet Corps; that he (Magtibay) be reinstated to his former rank
and command; and that he be included in the roster of the U.P. ROTC Advance
Course graduating class.

Upon the filing of the petition, the lower court issued a writ of preliminary
mandatory injunction, ordering Magtibay's reinstatement to his former rank and
command. Pursuant to said writ, appellant was "reinstated commander of ist BCT
U. P. ROTC Unit, and Javier relieved of such command." 3

After joinder of issues, hearing was conducted, and thereafter the lower court
issued the questioned order dismissing the petition and lifting the writ of
preliminary mandatory injunction. The court rationalized the order of dismissal,
thus —

... there seems to be merit in the contention that the remedy sought
and the body from which the remedy is being sought are not the
proper ones. For there does not seem to be any question that the
admission, regulation and supervision of ROTC Cadet Corps all over
the Philippines are vested in the Commanding General of the
Philippines who, in turn, is under the President of the Philippines.
Likewise, courts would not be the right branch of government to look
into the propriety or impropriety of a discharge or a dismissal of a
student from the Cadet Corps of the school in which he is enrolled,
for that would be interferring with purely internal matters properly
within the cognizance of the school authorities concerned and that
arm of the Army of Philippines which has to do with and is in charge
of the training of the youth in the ROTC.

Hence, this appeal.

We dismiss this appeal for being moot and academic. The records disclose that
during the pendency of this case before the lower court, Lt. Col. Garcia had been
relieved as commandant of the U.P. ROTC Corps of Cadets and assigned to
another post, while Cadet Col. Javier had long graduated from the U.P.
Moreover, pursuant to the writ of the preliminary mandatory injunction issued by
the lower court, appellant was reinstated to his former rank as commander of the
lst BCT of the U.P. ROTC Cadet Corps, which command he held up to the end of
the school year 1965-66.

At any rate, appellant's prayer to compel Lt. Col. Garcia to include him in the
roster of graduates of the ROTC Advance Course is absolutely bereft of any legal
basis to stand on. He was not allowed to graduate because he flunked the
subject MS-42, a required subject for the completion of the ROTC Advance
Course. That he flunked said subject is not disputed by the appellant. True, an
institution of learning has a contractual obligation to afford its students a fair
opportunity to complete the course they seek to pursue. However, when a
student commits a serious breach of discipline or fails to maintain the required
academic standard, he forfeits his contractual right; and the court should not
review the discretion of university authorities. 4

This Court has consistently adhered to the rule that a writ of mandamus will not
issue to control or review the exercise of discretion of a public officer where the
law imposes upon said public officer the right and duty to exercise judgment in
reference to any matter in which he is required to act. It is his judgment that is to
be exercised and not that of the court. 5

WHEREFORE, the order appealed from is hereby affirmed, with costs against
the appellant.