Republic of the Philippines

Supreme Court
Manila
EN BANC In Re: Letters of Atty. Estelito P. Mendoza re: G.R. No. 178083 Flight Attendants and Stewards Association of the Philippines (FASAP) v. Philippine Airlines, Inc. (PAL), et al. A.M. No. 11-10-1-SC Present: CORONA, C.J., CARPIO, VELASCO, JR., LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, SERENO, REYES, and PERLAS-BERNABE, JJ. Promulgated: March 13, 2012 x---------------------------------------------------------------------------------------x RESOLUTION BRION, J.:

Before the Court is the administrative matter that originated from the letters dated September 13, 16, 20, and 22, 2011 of Atty. Estelito P. Mendoza regarding G.R. No. 178083 Flight Attendants and Stewards Association of the Philippines v. Philippine Airlines, Inc., et al.

For a full background of the matter, the antecedent developments are outlined below.

1. The July 22, 2008 Decision

On July 22, 2008, the Courts Third Division ruled to grant [1] the petition for review on certiorari filed by the Flight Attendants and Stewards Association of the Philippines ( FASAP), finding Philippine Airlines, Inc. ( PAL) guilty of illegal dismissal. The July 22, 2008 Decision was penned by Justice Consuelo Ynares-Santiagowho was joined by the other four Members of the Third Division. The Third Division was then composed of:

1. Justice Ynares-Santiago,

2. Justice Alicia Austria-Martinez, 3. Justice Minita Chico-Nazario, 4. Justice Antonio Eduardo Nachura, and 5. Justice Teresita Leonardo-De Castro (replacing Justice Ruben Reyes who inhibited himself from the case).

Justice Leonardo-De Castro was included to replace Justice Ruben Reyes who had inhibited himself from the case because he concurred in the Court of Appeals ( CA) decision assailed by FASAP before the Court. [2] Then Associate Justice Renato Corona was originally designated to replace Justice Ruben Reyes, but he likewise inhibited himself from participation on June July 14, 2008 due to his previous efforts in settling the controversy when he was still in Malacaan. Under Administrative Circular (AC) No. 84-2007, one additional Member needed be drawn from the rest of the Court to replace the inhibiting Member. [3] In this manner, Justice Leonardo-De Castro came to participate in the July 22, 2008 Decision.

PAL subsequently filed its motion for reconsideration ( MR) of the July 22, 2008 Decision. The motion was handled by the Special Third Division composed of:

1. Justice Ynares-Santiago, 2. Justice Chico-Nazario, 3. Justice Nachura, 4. Justice Diosdado Peralta (replacing Justice Austria-Martinez who retired on April 30, 2009), and 5. Justice Lucas Bersamin (replacing Justice Leonardo-De Castro who inhibited at the MR stage for personal reasons on July 28, 2009).

2. The October 2, 2009 Resolution

Justice Ynares-Santiago, as the ponente of the July 22, 2008 Decision, continued to act as the ponente of the case.[4]

The Special Third Division[5] denied the MR with finality on October 2, 2009. [6] The Court further declared that [n]o further pleadings will be entertained.[7] The other Members of the Special Third Division unanimously concurred with the denial of the motion.

To fully explain the movements in the membership of the division, the Special Third Division missed Justice AustriaMartinez (who was among those who signed the July 22, 2008 Decision) due to her intervening retirement on April 30, 2009. Justice Leonardo-De Castro also did not participate in resolving the 1 st MR, despite having voted on the July 22, 2008 Decision, because of her own subsequent inhibition on July 28, 2009. [8]

3. PALs 2nd MR

On November 3, 2009, PAL asked for leave of court to file (a) an MR of the October 2, 2009 Resolution, and (b) a 2nd MR of the July 22, 2008 Decision. Both rulings were anchored on the validity of PALs retrenchment program.

In view of the retirement of the ponente, Justice Ynares-Santiago (who retired on October 5, 2009), the Courts Raffle Committee[9] had to resolve the question of who would be the new ponente of the case.

Under A.M. No. 99-8-09-SC (Rules on Who Shall Resolve Motions for Reconsideration in Cases Assigned to the Divisions of the Court, effective April 1, 2000), if the ponente has retired, he/she shall be replaced by another Justice who shall be chosen by raffle from among the remaining Members of the Division:
2. If the ponente is no longer a member of the Court or is disqualified or has inhibited himself from acting on the motion, he shall be replaced by another Justice who shall be chosen by raffle from among the remaining members of the Division who participated and concurred in the rendition of the decision or resolution and who concurred therein. If only one member of the Court who participated and concurred in the rendition of the decision or resolution remains, he shall be designated as the ponente.

However, on November 11, 2009, the case was raffled, not to a Member of the Third Division that issued the July 22, 2008 Decision or to a Member of the Special Third Division that rendered the October 2, 2009 Resolution, but to Justice Presbitero Velasco, Jr. who was then a Member of the newly-constituted regular Third Division. [10]

In raffling the case to Justice Velasco, the Raffle Committee considered the above-quoted rule inapplicable because of the express excepting qualification provided under A.M. No. 99-8-09-SC that states:
[t]hese rules shall not apply to motions for reconsideration of decisions or resolutions already denied with finality . [underscoring ours]

Stated otherwise, when the original ponente of a case retires, motions filed after the case has been denied with finality may be resolved by any Member of the Court to whom the case shall be raffled, not necessarily by a Member of the same Division that decided or resolved the case. Presumably, the logic behind the rule is that no further change can be made involving the merits of the case, as judgment has reached finality and is thus irreversible, based on the Rules of Court provision that [n]o second MR of a judgment or final resolution by the same party shall be entertained .[11] (The October 2, 2009 Resolution denying PALs 1stMR further stated that [n]o further pleadings will be entertained.) Thus, the resolution of postdecisional matters in a case already declared final may be resolved by other Members of the Court to whom the case may be raffled after the retirement of the original ponente.

Given the denial of PALs 1st MR and the declaration of finality of the Courts July 22, 2008 Decision through the October 2, 2009 Resolution, the Raffle Committee found it unnecessary to create a special Third Division . Thus, it found

nothing irregular in raffling the case to Justice Velasco (who did not take part in the deliberation of the Decision and the Resolution) of the reorganized Third Division for handling by a new regular division.

4. The acceptance of PALs 2nd MR

On January 20, 2010 (or while A.M. No. 99-8-09-SC was still in effect ), the new regular Third Division, through Justice Velasco, granted PALs Motion for Leave to File and Admit Motion for Reconsideration of the Resolution dated 2 October 2009 and 2nd Motion for Reconsideration of Decision dated 22 July 2008 . The Courts Third Division further required the respective parties to comment on PALs motion and FASAPs Urgent Appeal dated November 23, 2009. This grant, which opened both the Decision and the Resolution penned by Justice Ynares-Santiago for review, effectively opened the whole case for review on the merits.

The following were the Members of the Third Division that issued the January 20, 2010 Resolution:

1. Justice Antonio Carpio (vice Justice Corona who inhibited himself as of July 14, 2008), 2. Justice Velasco (ponente), 3. Justice Nachura, 4. Justice Peralta, and 5. Justice Bersamin.

Significantly, at the time leave of court was granted (which was effectively an acceptance for review of PALs 2 nd MR), the prohibition against entertaining a 2 ndMR under Section 2, Rule 52[12] (in relation with Section 4, Rule 56 [13]) of the Rules of Court applied. This prohibition, however, had been subject to various existing Court decisions that entertained 2 nd MRs in the higher interest of justice.[14] This liberalized policy was not formalized by the Court until the effectivity of the Internal Rules of the Supreme Court (IRSC) on May 4, 2010.[15]

With the acceptance of PALs 2nd MR, the question that could have arisen (but was not asked then) was whether the general rule under A.M. No. 99-8-09-SC (which was then still in effect) should have applied so that the case should have been transferred to the remaining Members of the Division that ruled on the meritsof the case. In other words, with the re-opening of the case for review on the merits, the application of the excepting qualification under A.M. No. 99-8-09-SC that the Raffle Committee cited lost its efficacy, as the rulings of the Court were no longer final for having been opened for further review.

A necessary implication is that either the Clerk of Court or the Raffle Committee should have advised Justice Velasco that his Division should refer the case back to raffle for referral of the case to the original Justices who participated in the assailed Decision and Resolution under the terms of the general rule under A.M. No. 99-8-09-SC; the Justices who participated in the

assailed Decision and Resolution were the best ones to consider the motion and to review their own rulings. This was the first major error that transpired in the case and one that the Clerk of Court failed to see .

Parenthetically, when PALs 2 nd MR was filed and when it was subsequently accepted, Justices Nachura, Peralta, and Bersamin were the only remaining Members of the Special Third Division that rendered the October 2, 2009 Resolution. Of these three Justices, only Justice Nachura was a Member of the original Third Division that issued the main decision on July 22, 2008. The case should have gone to Justice Nachura or, at the very least, to the two other remaining Justices. The re-raffle of the FASAP case to Justice Nachura (or to Justices Peralta and Bersamin) would have been consistent with the constitutional rule that [c]ases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon[.] [16]

5. The Reorganization of the Court

In May 2010, three developments critical to the FASAP case transpired.

The first was the approval of the IRSC by the Court on May 4, 2010. The IRSC codified the procedural rules of the Court, heretofore existing under various separate and scattered resolutions. Its relevant terms took the place of A.M. No. 99-809-SC.

The second was the retirement of then Chief Justice Reynato Puno and the appointment as Chief Justice of then Associate Justice Corona.

The third was the reorganization of the divisions of the Court under Special Order No. 838 dated May 17, 2010. Justice Velasco was transferred from the Third Division to the First Division. Pursuant to the new IRSC, Justice Velasco brought with him the FASAP case so that the case went from the Third Division to the First Division:
RULE 2. THE OPERATING STRUCTURES Section 9. Effect of reorganization of Divisions on assigned cases . In the reorganization of the membership of Divisions, cases already assigned to a Member-in-Charge shall be transferred to the Division to which the Memberin-Charge moves, subject to the rule on the resolution of motions for reconsideration under Section 7 of this Rule. The Member-in-Charge is the Member given the responsibility of overseeing the progress and disposition of a case assigned by raffle.

Another significant development in the case came on January 17, 2011 (or under the new regime of the IRSC) when Justice Velasco, after acting on the FASAP case for almost one whole year, inhibited himself from participation due to a close relationship to a party, despite his previous action on the case. The pertinent provisions of the IRSC on the matter of inhibition state:

RULE 2. THE OPERATING STRUCTURES Section 7. Resolutions of motions for reconsideration or clarification of decisions or signed resolutions and all other motions and incidents subsequently filed; creation of a Special Division . Motions for reconsideration or clarification of a decision or of a signed resolution and all other motions and incidents subsequently filed in the case shall be acted upon by the ponente and the other Members of the Division who participated in the rendition of the decision or signed resolution. If the ponente has retired, is no longer a Member of the Court, is disqualified, or has inhibited himself or herself from acting on the motion for reconsideration or clarification, he or she shall be replaced through raffle by a new ponente who shall be chosen [from] among the new Members of the Division who participated in the rendition of the decision or signed resolution remains, he or she shall be designated as the new ponente. If a Member (not the ponente) of the Division which rendered the decision or signed resolution has retired, is no longer a Member of the Court, is disqualified, or has inhibited himself or herself from acting on the motion for reconsideration or clarification, he or she shall be replaced through raffle by a replacement Member who shall be chosen from the other Divisions until a new Justice is appointed as replacement for the retired Justice. Upon the appointment of a new Justice, he or she shall replace the designated Justice as replacement Member of the Special Division. Any vacancy or vacancies in the Special Division shall be filled by raffle from among the other Members of the Court to constitute a Special Division of five (5) Members. If the ponente and all the Members of the Division that rendered the Decision or signed Resolution are no longer members of the Court, the case shall be raffled to any Member of the Court and the motion shall be acted upon by him or her with the participation of the other Members of the Division to which he or she belongs. If there are pleadings, motions or incidents subsequent to the denial of the motion for reconsideration [or] clarification, the case shall be acted upon by the ponente on record with the participation of the other Members of the Division to which he or she belongs at the time said pleading, motion or incident is to be taken up by the Court. xxx RULE 8. INHIBITION AND SUBSTITUTION OF MEMBERS OF THE COURT SEC. 3. Effects of Inhibition. The consequences of an inhibition of a Member of the Court shall be governed by these rules: (a) Whenever a Member-in-Charge of a case in a Division inhibits himself for a just and valid reason , the case shall be returned to the Raffle Committee for re-raffling among the Members of the other two Divisions of the Court. (IRSC, as amended by A.M. No. 10-4-20-SC dated August 3, 2010) [All emphasis supplied.]

The case was then referred to the Raffle Committee pursuant to Administrative Circular ( AC) No. 84-2007, as stated in the Division Raffle Sheet. The pertinent provision of AC No. 84-2007 states:
2. Whenever the ponente, in the exercise of sound discretion, inhibits herself or himself from the case for just and valid reasons other than those mentioned in paragraph 1, a to f above, the case shall be returned to the Raffle Committee for re-raffling among the other Members of the same Division with one additional Member from the other two Divisions. [underscoring and italics ours]

Reference to AC No. 84-2007, however, was erroneous. For one, the IRSC was already in effect when Justice Velasco inhibited himself from participation, and the IRSC had already superseded AC No. 84-2007. The prevailing IRSC, though, has an almost similar rule, with the difference that the IRSC speaks of the inhibition of a Member-in-Charge or of a Member of the Division other than the Member-in-Charge in its rule on inhibition, and did not use the ponente as its reference point. This seemingly trivial point carries a lot of significance, particularly in the context of the FASAP case.

Under the rule on inhibition found in Section 3, Rule 8 of the governing IRSC (as Justice Ma. Lourdes Sereno found in her dissenting opinion), the inhibition called for the raffle to a Member of the two other divisions of the Court. Thus, Justice Sereno found the subsequent January 26, 2011 raffle of the case to Justice Brion to be legally correct. As discussed by the Division that issued the September 7, 2011 Resolution ( the ruling Division), however, the application of the IRSC is not as simple as Justice Sereno views it to be. This matter is discussed at length below.

On June 21, 2011 (after the retirement of Justice Nachura on June 13, 2011), Chief Justice Corona issued Special Order No. 1025, again reorganizing the divisions of the Court. Justice Brion was transferred from the Third Division to the Second Division. Accordingly, the Third Division composed of Justice Velasco, Justice Peralta, Justice Bersamin, Justice Jose Mendoza, and Justice Sereno (who was included as additional Member) referred the FASAP case to the Second Division where Justice Brion belonged, pursuant to Section 9, Rule 2 of the IRSC. [17]

Justice Carpio (the Chair of the Second Division), after voting for the January 20, 2010 Resolution granting leave to PAL to file its 2nd MR, inhibited himself from the case on August 15, 2011. As stated in the Division Raffle Sheet of August 15, 2011, Justice Carpio recused himself from the case per advice of the office of the Member-in-Charge. Justice Peralta became the replacement for Justice Carpio, pursuant to Rule 8, Section 3 of the IRSC. 6. The September 7, 2011 Resolution and Atty. Estelito Mendozas letters

On September 7, 2011, the Court through its Second Division as then constituted resolved to deny with finality PALs 2nd MR through an unsigned resolution. The Second Division, as then constituted, was composed of:

1. Justice Brion (as Member-in-Charge and as Acting Chair, being the most senior Member), 2. Justice Peralta (replacing Justice Carpio who inhibited), 3. Justice Jose Perez, 4. Justice Bersamin (replacing Justice Sereno who was on leave [18]), and 5. Justice Mendoza (replacing Justice Bienvenido Reyes who was on leave [19]).

On September 13, 2011, the counsel for PAL, Atty. Mendoza, sent the first of a series of letters [20] addressed to the Clerk of Court of the Supreme Court. This letter noted that, of the Members of the Court who acted on the MR dated August 20, 2008 and who issued the Resolution of October 2, 2009, Justices Ynares-Santiago ( ponente), Chico-Nazario, and Nachura had already retired from the Court, and the Third Division had issued a Resolution on the case dated January 20, 2010, acted upon by Justices Carpio, Velasco, Nachura, Peralta, and Bersamin. The letter then asked whether the Court had acted on the 2 nd MR and, if so, which division whether regular or special acted and who were the chairperson and members. It asked, too, for the identity of the current ponente or justice-in-charge, and when and for what reason he or she was designated as ponente. It further asked for a copy of the Resolution rendered on the 2nd MR, if an action had already been taken thereon.

On September 16, 2011, Atty. Mendoza sent his second letter, again addressed to the Clerk of Court requesting that copies of any Special Orders or similar issuances transferring the case to another division, and/or designating Members of the division which resolved its 2nd MR, in case a resolution had already been rendered by the Court and in the event that such resolution was issued by a different division.

The Court received Atty. Mendozas third letter, again addressed to the Clerk of Court, on September 20, 2011. [21] Atty. Mendoza stated that he received a copy of the September 7, 2011 Resolution issued by the Second Division, notwithstanding that all prior Court Resolutions he received regarding the case had been issued by the Third Division. [22] He reiterated his request in his two earlier letters to the Court, asking for the date and time when the Resolution was deliberated upon and a vote taken thereon, as well as the names of the Members of the Court who had participated in the deliberation and voted on the September 7, 2011 Resolution.

Atty. Mendoza sent his fourth and last letter dated September 22, 2011, also addressed to the Clerk of Court, suggesting that if some facts subject of my inquiries are not evident from the records of the case or are not within your knowledge, that you refer the inquiries to the Members of the Court who appear to have participated in the issuance of the Resolution of September 7, 2011, namely: Hon. Arturo D. Brion, Hon. Jose P. Perez, Hon. Diosdado M. Peralta, Hon. Lucas P. Bersamin, and Hon. Jose C. Mendoza.

On September 26, 2011, the Clerk of Court issued the Vidal-Anama [23] Memorandum to the Members of the Second Division in relation to the inquiries contained in the first and second letters of Atty. Mendoza dated September 13 and 20, 2011. Justice Brion also furnished the Members of the ruling Division a copy of the Vidal-Anama Memorandum.

The Vidal-Anama Memorandum explained the events that transpired and the actions taken, which resulted in the transfer of the case from its original ponente, Justice Ynares-Santiago, to Justice Velasco, and eventually to Justice Brion. Attached to the Memorandum were the legal and documentary bases for all the actions of the various raffle committees. [24] These included the decisions of the two raffle committees on the transfer of the ponencia from Justice Ynares-Santiago to Justice Velasco and finally to Justice Brion as a regular Second Division case.

On September 28, 2011, the Letters dated September 13 and 20, 2011 of Atty. Mendoza to Atty. Vidal (asking that his inquiry be referred to the relevant Division Members who took part on the September 7, 2011 Resolution) were NOTED by the regular Second Division. The Members of the ruling Division also met to consider the queries posed by Atty. Mendoza. Justice Brion met with the Members of the ruling Division (composed of Justices Brion, Peralta, Perez, Bersamin, and Mendoza), rather than with the regular Second Division (composed of Justices Carpio, Brion, Perez, and Sereno [25]), as the former were the active participants in the September 7, 2011 Resolution.

In these meetings, some of the Members of the ruling Division saw the problems pointed out above, some of which indicated that the ruling Division might have had no authority to rule on the case . Specifically, their discussions centered on the application of A.M. No. 99-8-09-SC for the incidents that transpired prior to the effectivity of the IRSC, and on the conflicting rules under the IRSC Section 3, Rule 8 on the effects of inhibition and Section 7, Rule 2 on the resolution of MRs.

A.M. No. 99-8-09-SC indicated the general rule that the re-raffle shall be made among the other Members of the same Division who participated in rendering the decision or resolution and who concurred therein, which should now apply because the ruling on the case is no longer final after the case had been opened for review on the merits. In other words, after acceptance by the Third Division, through Justice Velasco, of the 2 nd MR, there should have been a referral to raffle because the excepting qualification that the Clerk of Court cited no longer applied; what was being reviewed were the merits of the case and the review should be by the same Justices who had originally issued the original Decision and the subsequent Resolution, or by whoever of these Justices are still left in the Court, pursuant to the same A.M. No. 99-8-09-SC.

On the other hand, the raffle to Justice Brion was made by applying AC No. 84-2007 that had been superseded by Section 3, Rule 8 of the IRSC. Even the use of this IRSC provision, however, would not solve the problem, as its use still raised the question of the provision that should really apply in the resolution of the MR: should it be Section 3, Rule 8 on the inhibition of a Member-in-Charge, or Section 7, Rule 2 of the IRSC on the inhibition of the ponente when an MR of a decision and a signed resolution was filed. These two provisions are placed side-by-side in the table below for easier and clearer comparison, with emphasis on the more important words:
RULE 8 INHIBITION AND SUBSTITUTION OF MEMBERS OF THE COURT SEC. 7. Resolutions of motions for reconsideration or SEC. 3. Effects of inhibition. - The consequences of an inhibition of a clarification of decisions or signed resolutions and all other Member of the Court shall be governed by these rules: motions and incidents subsequently filed; creation of a Special Division. - Motions for reconsideration or clarification of a (a) Whenever a Member-in-Charge of a case in a Division decision or of a signed resolution and all other motions and inhibits himself for a just and valid reason, the case shall incidents subsequently filed in the case shall be acted upon by the ponente and the other Members of the Division who be returned to the Raffle Committee for re-raffling participated in the rendition of the decision or signed resolution. among the Members of the other two (2) Divisions of If the ponente has retired, is no longer a Member of the the Court. Court, is disqualified, or has inhibited himself or herself from acting on the motion for reconsideration or clarification, he xxx or she shall be replaced through raffle by a new ponente who shall be chosen among the new Members of the Division who participated in the rendition of the decision or signed resolution and who concurred therein. If only one Member of the Court who participated and concurred in the rendition of the decision or signed resolution remains, he or she shall be designated as the new ponente. RULE 2 THE OPERATING STRUCTURES

A comparison of these two provisions shows the semantic sources of the seeming conflict: Section 7, Rule 2 refers to a situation where the ponente has retired, is no longer a Member of the Court, is disqualified, or has inhibited himself from acting

on the case; while Section 3, Rule 8 generally refers to the inhibition of a Member-in-Charge who does not need to be the writer of the decision or resolution under review.

Significantly, Section 7, Rule 2 expressly uses the word ponente (not Member-in-Charge) and refers to a specific situation where the ponente (or the writer of the Decision or the Resolution) is no longer with the Court or is otherwise unavailable to review the decision or resolution he or she wrote. Section 3, Rule 8, on the other hand, expressly uses the term Member-in-Charge and generally refers to his or her inhibition, without reference to the stage of the proceeding when the inhibition is made.

Under Section 7, Rule 2, the case should have been re-raffled and assigned to anyone of Justices Nachura (who did not retire until June 13, 2011), Peralta, or Bersamin, either (1) after the acceptance of the 2 nd MR (because the original rulings were no longer final); or (2) after Justice Velascos inhibition because the same condition existed, i.e., the need for a review by the same Justices who rendered the decision or resolution. As previously mentioned, Justice Nachura participated in both the original Decision and the subsequent Resolution, and all three Justices were the remaining Members who voted on the October 2, 2009 Resolution. On the other hand, if Section 3, Rule 8 were to be solely applied after Justice Velascos inhibition, the Clerk of Court would be correct in her assessment and the raffle to Justice Brion, as a Member outside of Justice Velascos Division, was correct.

These were the legal considerations that largely confronted the ruling Division in late September 2011 when it deliberated on what to do with Atty. Mendozas letters. The propriety of and grounds for the recall of the September 7, 2011 Resolution

Most unfortunately, the above unresolved questions were even further compounded in the course of the deliberations of the Members of the ruling Division when they were informed that the parties received the ruling on September 19, 2011, and this ruling would lapse to finality after the 15th day, or after October 4, 2011.

Thus, on September 30, 2011 (a Friday), the Members went to Chief Justice Corona and recommended, as a prudent move, that the September 7, 2011 Resolution be recalled at the very latest on October 4, 2011, and that the case be referred to the Court en banc for a ruling on the questions Atty. Mendoza asked. The consequence, of course, of a failure to recall their ruling was for that Resolution to lapse to finality. After finality, any recall for lack of jurisdiction of the ruling Division might not be understood by the parties and could lead to a charge of flip-flopping against the Court. The basis for the referral is Section 3(n), Rule 2 of the IRSC, which provides:
RULE 2. OPERATING STRUCTURES Section 3. Court en banc matters and cases. The Court en banc shall act on the following matters and cases:

xxxx (n) cases that the Court en banc deems of sufficient importance to merit its attention[.]

Ruling positively, the Court en banc duly issued its disputed October 4, 2011 Resolution recalling the September 7, 2011 Resolution and ordering the re-raffle of the case to a new Member-in-Charge. Later in the day, the Court received PALs Motion to Vacate (the September 7, 2011 ruling) dated October 3, 2011. This was followed by FASAPs MR dated October 17, 2011 addressing the Court Resolution of October 4, 2011. The FASAP MR mainly invoked the violation of its right to due process as the recall arose from the Courts ex parte consideration of mere letters from one of the counsels of the parties.

As the narration in this Resolution shows, the Court acted on its own pursuant to its power to recall its own orders and resolutions before their finality. The October 4, 2011 Resolution was issued to determine the propriety of the September 7, 2011 Resolution given the facts that came to light after the ruling Divisions examination of the records. To point out the obvious, the recall was not a ruling on the merits and did not constitute the reversal of the substantive issues already decided upon by the Court in the FASAP case in its previously issued Decision (of July 22, 2008) and Resolution (of October 2, 2009). In short, the October 4, 2011 Resolution was not meant and was never intended to favor either party, but to simply remove any doubt about the validity of the ruling Divisions action on the case. The case, in the ruling Divisions view, could be brought to the Court en banc since it is one of sufficient importance; at the very least, it involves the interpretation of conflicting provisions of the IRSC with potential jurisdictional implications.

At the time the Members of the ruling Division went to the Chief Justice to recommend a recall, there was no clear indication of how they would definitively settle the unresolved legal questions among themselves. The only matter legally certain was the looming finality of the September 7, 2011 Resolution if it would not be immediately recalled by the Court en banc by October 4, 2011. No unanimity among the Members of the ruling Division could be gathered on the unresolved legal questions; thus, they concluded that the matter is best determined by the Court en banc as it potentially involved questions of jurisdiction and interpretation of conflicting provisions of the IRSC. To the extent of the recommended recall, the ruling Division was unanimous and the Members communicated this intent to the Chief Justice in clear and unequivocal terms.

Given this background, the Clerk of Court cannot and should not be faulted for her recommended position, as indeed there was a ruling in the 1st MR that declared the original ruling on the case final. Perhaps, she did not fully realize that the ruling on the 1st MR varied the terms of the original Decision of July 22, 2008; she could not have considered, too, that a subsequent 2nd MR would be accepted for the Courts further consideration of the case on the merits.

Upon acceptance of the 2 nd MR by the Third Division through Justice Velasco, the Clerk of Court and the Raffle Committee, however, should have realized that Justice Velasco was not the proper Member-in-Charge of the case and another

raffle should have been held to assign the case to a Justice who participated in the original Decision of July 22, 2008 or in the Resolution of October 2, 2009. This realization, unfortunately, did not dawn on the Clerk of Court.

For practically the same reasons, the Third (or Velasco) Division, with Justice Velasco as Member-in-Charge, cannot and should not be faulted for accepting the 2nd MR; the variance introduced by the ruling on the 1st MR and the higher interest of justice (in light alone of the gigantic amount involved) appeared to justify further consideration of the case. Recall that at that time, the IRSC was not yet in existence and a specific rule under the IRSC on the handling of 2 nd MRs was yet to be formulated, separately from the existing jurisprudential rulings. Justice Velasco, though, could not have held on to the case after its merits were opened for new consideration, as he was not the writer of the assailed Decision and Resolution, nor was he a Member of the Division that acted on the case. Under A.M. No. 99-8-09-SC, the rightful ponente should be a remaining Member of the Division that rendered the decision or resolution.

With Justice Velascos subsequent inhibition, a legal reason that the involved officials and Justices should have again recognized is the rationale of the rule on replacements when an inhibition or retirement intervenes. Since the inhibiting Justice was only the Member-in-Charge and was technically merely a nominal ponente[26] in so far as the case is concerned (because he was not the writer of the Decision and Resolution under consideration), the raffle should have been confined among the Members who actually participated in ruling on the merits of the original Decision or of the subsequent Resolution. At that point, only Justices Peralta and Bersamin were left because all the other Members of the original ruling groups had retired. Since under the IRSC[27] and Section 4(3), Article VIII of the Constitution, the case should have been decided by the Members who actually took part in the deliberations, the ruling on the merits made by the ruling Division on September 7, 2011 was effectively void and should appropriately be recalled.

To summarize all the developments that brought about the present dispute expressed in a format that can more readily be appreciated in terms of the Court en bancs ruling to recall the September 7, 2011 ruling the FASAP case, as it developed, was attended by special and unusual circumstances that saw:

(a)

the confluence of the successive retirement of three Justices (in a Division of five Justices) who actually participated in the assailed Decision and Resolution;

(b) the change in the governing rules from the A.M.s to the IRSC regime which transpired during the pendency of the case;

(c)

the occurrence of a series of inhibitions in the course of the case (Justices Ruben Reyes, Leonardo-De Castro, Corona, Velasco, and Carpio), and the absences of Justices Sereno and Reyes at the critical time, requiring their replacement; notably, Justices Corona, Carpio, Velasco and Leonardo-De Castro are the four most senior Members of the Court;

(d) the three re-organizations of the divisions, which all took place during the pendency of the case, necessitating the transfer of the case from the Third Division, to the First, then to the Second Division;

(e)

the unusual timing of Atty. Mendozas letters, made after the ruling Division had issued its Resolution of September 7, 2011, but before the parties received their copies of the said Resolution; and

(f)

finally, the time constraint that intervened, brought about by the parties receipt on September 19, 2011 of the Special Divisions Resolution of September 7, 2011, and the consequent running of the period for finality computed from this latter date; and the Resolution would have lapsed to finality after October 4, 2011, had it not been recalled by that date.

All these developments, in no small measure, contributed in their own peculiar way to the confusing situations that attended the September 7, 2011 Resolution, resulting in the recall of this Resolution by the Court en banc.

On deeper consideration, the majority now firmly holds the view that Section 7, Rule 2 of the IRSC should have prevailed in considering the raffle and assignment of cases after the 2 nd MR was accepted, as advocated by some Members within the ruling Division, as against the general rule on inhibition under Section 3, Rule 8. The underlying constitutional reason, of course, is the requirement of Section 4(3), Article VIII of the Constitution already referred to above. [28]

The general rule on statutory interpretation is that apparently conflicting provisions should be reconciled and harmonized,[29] as a statute must be so construed as to harmonize and give effect to all its provisions whenever possible. [30] Only after the failure at this attempt at reconciliation should one provision be considered the applicable provision as against the other.
[31]

Applying these rules by reconciling the two provisions under consideration, Section 3, Rule 8 of the IRSC should be read as the general rule applicable to the inhibition of a Member-in-Charge . This general rule should, however, yield where the inhibition occurs at the late stage of the case when a decision or signed resolution is assailed through an MR. At that point, when the situation calls for the review of the merits of the decision or the signed resolution made by a ponente (or writer of the assailed ruling), Section 3, Rule 8 no longer applies and must yield to Section 7, Rule 2 of the IRSC which contemplates a situation when the ponente is no longer available, and calls for the referral of the case for raffle among the remaining Members of the Division who acted on the decision or on the signed resolution. This latter provision should rightly apply as it gives those who intimately know the facts and merits of the case, through their previous participation and deliberations, the chance to take a look at the decision or resolution produced with their participation.

To reiterate, Section 3, Rule 8 of the IRSC is the general rule on inhibition, but it must yield to the more specific Section 7, Rule 2 of the IRSC where the obtaining situation is for the review on the merits of an already issued decision or resolution and the ponente or writer is no longer available to act on the matter. On this basis, the ponente, on the merits of the case on review, should be chosen from the remaining participating Justices, namely, Justices Peralta and Bersamin.

A final point that needs to be fully clarified at this juncture, in light of the allegations of the Dissent is the role of the Chief Justice in the recall of the September 7, 2011 Resolution. As can be seen from the above narration, the Chief Justice acted only on the recommendation of the ruling Division, since he had inhibited himself from participation in the case long before. The confusion on this matter could have been brought about by the Chief Justices role as the Presiding Officer of the Court en banc (particularly in its meeting of October 4, 2011), and the fact that the four most senior Justices of the Court (namely, Justices Corona, Carpio, Velasco and Leonardo-De Castro) inhibited from participating in the case. In the absence of any clear personal malicious participation, it is neither correct nor proper to hold the Chief Justice personally accountable for the collegial ruling of the Court en banc.

Another disturbing allegation in the Dissent is the implication of the alleged silence of, or lack of objection from, the Members of the ruling Division during the October 4, 2011 deliberations, citing for this purpose the internal en banc deliberations. The lack of a very active role in the arguments can only be attributable to the Members of the ruling Divisions unanimous agreement to recall their ruling immediately; to their desire to have the intricate issues ventilated before the Court en banc; to the looming finality of their Divisions ruling if this ruling would not be recalled; and to their firm resolve to avoid any occasion for future flip-flopping by the Court. To be sure, it was not due to any conspiracy to reverse their ruling to affirm the previous Court rulings already made in favor of FASAP; the Divisions response was simply dictated by the legal uncertainties that existed and the deep division among them on the proper reaction to Atty. Mendozas letters.

Of the above-cited reasons, a major influencing factor, of course, was the time constraint the Members of the ruling Division met with the Chief Justice on September 30, 2011, the Friday before October 4, 2011 (the date of the closest Court en banc meeting, as well as the deadline for the finality of the September 7, 2011 Resolution ). They impressed upon the Chief Justice the urgent need to recall their September 7, 2011 Resolution under the risk of being accused of a flip-flop if the Court en banc would later decide to override its ruling.

As a final word, if no detailed reference to internal Court deliberations is made in this Resolution, the omission is intentional in view of the prohibition against the public disclosure of the internal proceedings of the Court during its deliberations. The present administrative matter, despite its pendency, is being ventilated in the impeachment of Chief Justice Corona before the Senate acting as an Impeachment Court, and any disclosure in this Resolution could mean the disclosure of the Courts internal deliberations to outside parties, contrary to the clear terms of the Court en banc Resolution of February 14, 2012 on the attendance of witnesses from this Court and the production of Court records.

CONCLUSION

In sum, the recall of the September 7, 2011 Resolution of the ruling Division was a proper and legal move to make under the applicable laws and rules, and the indisputably unusual developments and circumstances of the case.

Between Section 3, Article 8 and Section 7, Rule 2, both of the IRSC, the former is the general provision on a Member-in-Charges inhibition, but it should yield to the more specific Section 7, Rule 2 in a situation where the review of an issued decision or signed resolution is called for and the ponenteor writer of these rulings is no longer available to act. Section 7, Rule 2 exactly contemplates this situation.

WHEREFORE, premises considered, we hereby confirm that the Court en banc has assumed jurisdiction over the resolution of the merits of the motions for reconsideration of Philippine Airlines, Inc., addressing our July 22, 2008 Decision and October 2, 2009 Resolution; and that the September 7, 2011 ruling of the Second Division has been effectively recalled. This case should now be raffled either to Justice Lucas P. Bersamin or Justice Diosdado M. Peralta (the remaining Members of the Special Third Division that originally ruled on the merits of the case) as Member-inCharge in resolving the merits of these motions.

The Philippine Airlines, Inc.s Motion to Vacate dated October 3, 2011, but received by this Court after a recall had been made, has thereby been rendered moot and academic.

The Flight Attendants and Stewards Association of the Philippines Motion for Reconsideration of October 17, 2011 is hereby denied; the recall of the September 7, 2011 Resolution was made by the Court on its own before the rulings finality pursuant to the Courts power of control over its orders and resolutions. Thus, no due process issue ever arose.

SO ORDERED.

ARTURO D. BRION Associate Justice WE CONCUR:

RENATO C. CORONA Chief Justice

ANTONIO T. CARPIO Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

DIOSDADO M. PERALTA Associate Justice (No Part) MARIANO C. DEL CASTILLO Associate Justice

LUCAS P. BERSAMIN Associate Justice

ROBERTO A. ABAD Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

JOSE CATRAL MENDOZA Associate Justice

MARIA LOURDES P. A. SERENO Associate Justice

BIENVENIDO L. REYES Associate Justice

ESTELA M. PERLAS-BERNABE Associate Justice