Republic of the Philippines REGIONAL TRIAL COURT National Capital Region Branch 111, Pasay City

PHILIPPINE MIGRANT RIGHTS WATCH, INC., on its own behalf and on behalf of its member-overseas Filipino workers, Jesus P. Reyes and Rodolfo B. Macorol, Plaintiffs, - versus OVERSEAS WORKERS WELFARE ADMINISTRATION and its Board of Trustees composed of Hon. Patricia A. Sto. Tomas, Virgilio R. Angelo, Manuel G. Imson, The Secretary of Foreign Affairs represented by Undersecretary Jose S. Brillantes, Rosalida D. Baldoz, The Secretary of Budget and Management represented by Assistant Secretary Eduardo P. Opida, Mina C. Figueroa, Victorino F. Balais, Caroline R. Rogge, Gregorio S. Oca, Corazon P. Carsola and Virginia J. Pasalo, Defendants. x------------------------------------------------------x Civil Case No. 04-0077 CFM For: Annulment of Sections 4, 5, 6, 7 and 8 of Article II, Sections 5(c) and (h) of Article III, Articles IV, V, VI VII and VIII of OWWA Board Resolution No. 038, Series of 2003, with prayer for a the issuance of a writ of preliminary injunction.

MOTION FOR RECONSIDERATION

The PLAINTIFFS, by counsel, and unto this Honorable Court, respectfully moves for the reconsideration of the Order dated August 31, 2004 (received by registered mail on September 6, 2004) dismissing the instant case on the following grounds:

I. THE REGIONAL TRIAL COURT HAS JURISDICTION TO DETERMINE THE CONSTITUTIONALITY AND VALIDITY OF THE OWWA OMNIBUS POLICIES.

1.1

The authority and jurisdiction of this Honorable Court to decide cases involving the constitutionality and validity of administrative rules issued by the administrative agencies of government is well established in law and jurisprudence.

1.2

Section 5(a) of Article VIII of the Constitution of the Philippines states: Sec. 5. The Supreme Court shall have the following powers: x x x x x x

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

1.3

The above-quoted constitutional provision clearly provides for the appellate jurisdiction of the Supreme Court to decide cases involving the constitutionality or validity of laws and regulations, among others, after the same has been decided at the first instance by the lower courts. This implies that the issue of constitutionality or validity of a statute or administrative regulation, must first be ruled upon by the Regional Trial Court at the first instance before the Supreme Court may exercise its appellate jurisdiction.

1.4

The jurisdiction of this Honorable Court to hear and decide cases involving the constitutionality and validity of laws and administrative rules, among others, is part of the jurisdiction of the Regional Trial Court to hear and decide civil actions in which the subject of the litigation is incapable of pecuniary estimation under Section 19 (1) of Batas Pambansa Blg. 129 otherwise known as The Judiciary Reorganization Act of 1980, as amended.

1.5

In a long line of cases, the Supreme Court has affirmed the authority of the Regional Trial Court to heart and decide cases involving the constitutionality and validity of laws and administrative regulations.

1.6

In the case of J. M. Tuason & Co. v. Court of Appeals (3 SCRA 696), one of the issues raised was whether or not the Court of First Instance has jurisdiction to decide on the issue of the constitutionality of Republic Act No. 2616 which provided for the expropriation of the Tatalon Estate. The Supreme Court ruled in the affirmative. The Supreme Court held that:

Plainly, the Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue. Construing both provisions together, it is readily discerned that the two-thirds vote of the Supreme Court, required by section 10 of Article VIII, conditions only the decisions of the Supreme Court in the exercise of its appellate jurisdiction.

1.7

In the case of Ynot v. Intermediate Appellate Court (148 SCRA 659) where the Regional Trial Court of Iloilo City refused to rule upon the constitutionality of Executive Order No. 626-A banning the transportation of carabaos from one province to another, the Supreme Court held that: This Court has declared that while lower courts should observe a becoming modesty in examining constitutional questions, they are nonetheless not prevented from resolving the same whenever warranted, subject only to review by the highest tribunal. We have jurisdiction under the Constitution to review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may provide, final judgments and orders of lower courts in, among others, all cases involving the constitutionality of certain measures. This simply means that the resolution of such cases may be made in the first instance by these lower courts. And while it is true that laws are presumed to be constitutional, that presumption is not by any means conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the need to declare them so, then will be the time to make the hammer fall, and heavily, to recall Justice Laurel's trenchant warning. Stated otherwise, courts should not follow the path of least resistance by simply presuming the constitutionality of a law when it is questioned. On the contrary, they should probe the issue more deeply, to relieve the abscess, paraphrasing another distinguished jurist, and so heal the wound or excise the affliction.
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Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of the bench, especially this Court.

1.8

In the case of Drilon v. Lim, et al., (235 SCRA 135), the Regional Trial Court of Manila declared Section 187 of the Local Government Code to be unconstitutional. Although the Supreme Court reversed the decision of the trial court, the jurisdiction of the Regional Trial Court to decide the constitutionality of Section 187 of the Local Government Code was upheld. Said the Supreme Court:

We stress at the outset that the lower court had jurisdiction to consider the constitutionality of Section 187, this authority being embraced in the general definition of the judicial power to determine what are the valid and binding laws by the criterion of their conformity to the fundamental law. Specifically, BP 129 vests in the regional trial courts jurisdiction over all civil cases in which the subject of the litigation is incapable of pecuniary estimation, even as the accused in a criminal action has the right to question in his defense the constitutionality of a law he is charged with violating and of the proceedings taken against him, particularly as they contravene the Bill of Rights. Moreover, Article X, Section 5(2), of the Constitution vests in the Supreme Court appellate jurisdiction over final judgments and orders of lower courts in all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

1.9

This Court, in the exercise of its power of judicial review, also has the jurisdiction to decide on the constitutionality and validity of administrative rules and regulations issued by the administrative agencies of government in the exercise of its quasi-legislative powers. In the aforecited cases, the Supreme Court upheld the jurisdiction of the Regional Trial Court to decide the constitutionality and validity of statutes. Verily, this Court can likewise rule at the first instance, on the constitutionality or validity of administrative rules and regulations.

1.10

In the case of Miller v. Mardo (2 SCRA 898), the Courts of First Instance of Baguio, Manila, Cebu and Isabela declared unconstitutional and invalid Reorganization Plan No. 20-A prepared by the Government Survey and
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Reorganization Commission. The Supreme Court sustained the decisions of the lower courts.

1.11

In the case of Dabuet, et al., v. Roche Products Labor Union, et al., (149 SCRA 386), the Supreme Court upheld the power of courts to determine the constitutionality or validity of acts of administrative agencies of government performed in the exercise of its quasi-judicial or delegated legislative powers. The Supreme Court held:

To be sure, Art. 223 of the Labor Code, while providing expressly that decisions of the Secretary of Labor may be appealed to the Office of the President, does not provide for review of the decisions of the Office of the President by the Supreme Court. This does not mean, however, that the power of judicial review does not extend to decisions of the Office of the President. In San Miguel Corp. vs. Secretary of Labor, where the same issue was raised, the Court categorically declared that there is an underlying power in the courts to scrutinize the acts of agencies exercising quasi-judicial or legislative power on questions of law and jurisdiction even though no right of review is given by the statute. The Court therein said: Yanglay raised a jurisdictional question which was not brought up by respondent public officials. He contends that this Court has no jurisdiction to review the decisions of the NLRC and the Secretary of Labor 'under the principle of separation of powers' and that judicial review is not provided for in Presidential Decree No. 21. That contention is a flagrant error. 'It is generally understood that as to administrative agencies exercising quasi-judicial or legislative power there is an underlying power in the courts to scrutinize the acts of such agencies on questions of law and jurisdiction even though no right of review is given by statute' (73 C.J.S. 506, note 56). The purpose of judicial review is to keep the administrative agency within its jurisdiction and protect substantial rights of parties affected by its decisions' (73 C.J.S. 504, Sec. 165). It is part of the system of checks and balances which restricts the separation of powers and forestalls arbitrary and unjust adjudications. Judicial review is proper in case of lack of jurisdiction, grave abuse of discretion, error of law, fraud or collusion (Timbancaya vs. Vicente, 62 O.G. 9424; Macatangay vs. Secretary of Public Works and Communications, 63 O.G, 11236; Ortua vs. Singson Encarnacion, 59 Phil. 440). In Macailing vs. Andrada, the Court also ruled that judicial review of administrative decisions is available even if the statute does not provide for judicial
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review. The Court said: In the matter of judicial review of administrative decisions, some statutes especially provide for such judicial review; others are silent. Mere silence, however, does not necessarily imply that judicial review is unavailable. Modes of judicial review vary according to the statutes; appeal, petition for review or a writ of certiorari. No general rule applies to all the various administrative agencies. Where the law stands mute, the accepted view is that the extraordinary remedies in the Rules of Court are still available. Accordingly, we restate that this Court, in the exercise of its power of judicial review, may review decisions of the Office of the President on questions of law and jurisdiction, when properly raised. This does not mean judicial supremacy over the Office of the President but the performance by this Court of a duty specifically enjoined upon it by the Constitution, as part of a system of checks and balances. II.

THE CASES OF FORTICH v. CORONA (289 SCRA 624) AND PEOPLE v. CUARESMA (172 SCRA 415) ARE INAPPLICABLE TO THE CASE AT BAR.

2.1

In dismissing the instant case, this Honorable Court relied upon the Supreme Courts decision in the cases of Fortich v. Corona (289 SCRA 624) and People v. Cuaresma (172 SCRA 415). Why said decisions were found to be applicable in the instant case was not explained in the questioned Order.

2.2

In the case of Fortich v. Corona, the issue involved was the validity of the Resolution dated November 7, 1997 issued by the Office of the President which resolution modified an earlier resolution issued also by the Office of the President that has already become final and executory. Said resolutions were issued by the Office of the President in the exercise of its quasi-judicial functions in resolving on appeal the decision rendered by the Secretary of Agrarian Reform awarding 144 hectares of agricultural land to farmer beneficiaries in Sumilao, Bukidnon. (boldface ours)

2.3

In the Fortich v. Corona case, the Supreme Court ruled upon the appropriateness of
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the petition for certiorari filed by the petitioners before the Supreme Court instead of a petition for review before the Court of Appeals under Rule 43 of the Rules of Court. In said case, the Supreme Court upheld the propriety of the filing of the petition for certiorari because the resolution being questioned was alleged to be patently illegal and constitutes an error of jurisdiction and not an error of judgment.

2.4

Said case finds no application to the case at bar. The Fortich v. Corona case involves the question of validity of a resolution issued by the Office of the President in the exercise of its quasi-judicial functions, the proper remedy of which is a petition for certiorari. The instant case however, does not involve the exercise of quasi-judicial functions by an administrative agency of government. Plaintiffs are seeking the nullification of the OWWA Omnibus Policies which were promulgated by the OWWA Board of Trustees in the exercise of its quasi-legislative functions. Hence, the special civil action of certiorari is not the appropriate remedy in the present case. (boldface ours)

2.5

In the same case of Fortich v. Corona, the Supreme Court cited the case of People v. Cuaresma in ruling that the Supreme Court, the Court of Appeals and the Regional Trial Court have original concurrent jurisdiction to issue writs of certiorari, prohibition and mandamus. Nowhere in said decision did the Supreme Court state that where the challenged act of administrative agencies is deemed patently illegal the petition should only be filed before the Supreme Court.

2.6

In fact, in the case of People v. Cuaresma, the Supreme Court admonished the petitioner from bringing the petition for certiorari directly to the Supreme Court and for failing to observe the hierarchy of courts. Said the Supreme Court:

Furthermore, the remedy of certiorari is limited to acts of any agency or officer exercising judicial functions or of any judge which are claimed to be without or in excess of its or his jurisdiction, or with grave abuse of discretion. It does not lie for the correction of errors of judgment which may be brought about only by appeal. Not every error in procedure, or every erroneous conclusion of law or of fact of serious nature, is correctible by certiorari, appeal being the appropriate remedy, except where the error constitutes grave abuse of discretion, i.e., such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The error here committed by His Honor obviously does not constitute grave abuse of discretion. It was an error of law, involving what was then deemed unsettled principle whether or not the filing of a complaint in the office of the fiscal interrupted the period of prescription of the offense charged. It is not correctible by certiorari. A last word. This Court's original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, enforceable in any part of their respective regions. It is also shared by this Court, and by the Regional Trial Court, with the Court of Appeals (formerly, Intermediate Appellate Court), although prior to the effectivity of Batas Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was restricted to those in aid of its appellate jurisdiction. This concurrence of jurisdiction is not, however; to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level (inferior) courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. Indeed, the removal of the restriction on the jurisdiction of the Court of Appeals in this regard, supra resulting from the deletion of the qualifying phrase, in aid of its appellate jurisdiction was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for the extraordinary writs which, but for the expansion of the Appellate Court corresponding jurisdiction, would have had to be filed with it. The Court feels the need to reaffirm that policy at this time, and to enjoin strict adherence thereto in the light of what it perceives to be a growing tendency on the part of litigants and lawyers to have their applications for the so-called extraordinary writs, and sometime even their appeals, passed upon and adjudicated directly and immediately by the highest tribunal of the land. The proceeding at bar is a case in point. The application for the writ of certiorari sought against a City Court was brought directly to this Court although there is discernible special and important reason for not presenting it to the Regional Trial Court. The Court therefore closes this decision with the declaration for the information and evidence of all concerned, that it will not only continue to enforce the policy, but will require a more strict observance thereof. (underscoring ours)
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III. A SPECIAL CIVIL ACTION FOR CERTIORARI UNDER RULE 65 IS NOT THE PROPER REMEDY FOR THE PLAINTIFFS IN THIS CASE.

3.1

With all due respect to this Honorable Court, it appears that this Court is of the view that the plaintiffs should have instead filed a petition for certiorari before the Supreme Court in challenging the OWWA Omnibus Policies instead of filing the present action for annulment of the OWWA Omnibus Policies before the Regional Trial Court of Pasay City.

3.2

The Plaintiffs beg to disagree.

3.3

In the first place, a petition for certiorari under Section 1 of Rule 65 of the Rules of Court is a judicial remedy available when any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of its or his jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.

3.4

A petition for certiorari is not the proper judicial remedy for herein plaintiffs for the simple reason that the OWWA Omnibus Policies were promulgated by the OWWA Board of Trustees in the exercise of its quasi-legislative functions and not quasijudicial functions. A petition for certiorari under Rule 65 of the Rules of Court is not proper to challenge quasi-legislative actions of administrative agencies. (underscoring ours)

3.5

A special civil action for prohibition is likewise not a remedy available to the plaintiffs because the special civil action of prohibition lies against judicial and ministerial functions but not against legislative functions. (Ruperto v. Torres, L9785, February 25, 1957)

IV. SECTION 2 OF RULE 43 OF THE REVISED RULES OF CIVIL PROCEDURE, AS WELL AS REASONS OF COMITY AND CONVENIENCE FINDS NO APPLICATION TO THE CASE AT BAR.

4.1

In addition to the cases of Fortich v. Corona (289 SCRA 624) and People v. Cuaresma (172 SCRA 415), this Honorable Court also cited several other reasons for dismissing the instant case.

4.2

This Honorable Court invoked Section 2 of Rule 43 of the Revised Rules of Civil Procedure as a ground for dismissal. Said Rule states:

Rule 43, Section 2. Cases not covered. - This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines.

4.2.1

Clearly, this Honorable Court erred in invoking said provision of the Rules of Court.

4.2.2

Rule 43 of the Rules of Court governs Appeals from the Court of Tax Appeals and Quasi-Judicial Agencies to the Court of Appeals.

4.2.3

The OWWA is not a quasi-judicial agency of government. Neither is it included among the government agencies enumerated under Section 1 of Rule 43 of the Rules of Court to which said Rule applies.

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4.2.4

The OWWA Omnibus Policies were issued by the OWWA Board in the exercise of its quasi-legislative functions and not in the exercise of quasijudicial functions.

4.2.5

There is no judgment or final order to speak of in this case.

4.2.6

The OWWA Omnibus Policies were approved by the OWWA Board of Trustees pursuant to its perceived legislative mandate under LOI No. 537, P. D. 1694, P. D. 1809 and R. A. 8042 and not under the provisions of the Labor Code of the Philippines.

4.2.7

Clearly, Section 2 of Rule 43 of the Rules of Court finds no application in the instant case.

4.3

This Honorable Court also invoked comity as a ground for dismissal of the instant case. The OWWA was likewise deemed a co-equal in rank of this Court.

4.3.1

Comity is not a valid ground for dismissing this case.

4.3.2

First, the jurisdiction of the court to hear and decide a case is determined by law. Refusal to exercise jurisdiction over a case where it is clearly evident that jurisdiction exists is a grave abuse of discretion, at the very least. In the case of Ynot v. Intermediate Appellate Court (148 SCRA 659), the Supreme Court held when the exercise is demanded, there should be no shirking of the task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of the bench, especially this Court.

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(underscoring ours)

4.3.3

Second, the refusal of a trial court to exercise jurisdiction over a case on grounds of comity may be justified only in cases involving conflict of laws. No such situation exists in this case.

4.3.4

Third, under Section 4 of Rule 65 governing petitions for certiorari, prohibition and mandamus relating to the act of a lower court, or of a corporation, board, officer or person, it is required that the petition should be filed before the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. OWWA has its office within Pasay City within the territorial jurisdiction of this Court.

4.3.5

The fact that this Court treats the OWWA as a co-equal in rank does not justify the refusal to exercise the power of judicial review where jurisdiction is clearly established. The exercise of this Court of its judicial power is a performance of a duty enjoined by the Constitution as part of the system of checks and balances in government.

4.4

This Honorable Court likewise invoked convenience as a ground for dismissal of the instant case.

4.4.1

Convenience is not a valid ground for the courts refusal to exercise jurisdiction in the instant case. Nowhere in the Rules is it stated that a case may be dismissed on the ground of the convenience of the court.

4.4.2

Plaintiffs are enjoined by the Supreme Court to strictly follow the

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established hierarchy of courts. Plaintiffs have no choice but to file the instant case before this Court that has original jurisdiction over the subject matter of this case.

V. THE PLAINTIFFS ARE OBLIGED TO FOLLOW THE ESTABLISHED HEIRARCHY OF COURTS

5.1

Plaintiffs are of the view that they have no other recourse than to file the instant action before this Honorable Court in view of the Supreme Courts admonition to all party litigants and lawyers to follow the established hierarchy of courts.

5.2

Had the plaintiffs opted to file the instant case before the Supreme Court or the Court of Appeals, the instant case might have been dismissed for failure to follow the hierarchy of courts.

5.3

In the case of Miriam Defensor Santiago v. Conrado Vasquez, et al., (G. R. No. 99289-90, January 27, 1993), the Supreme Court held:

One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only because of the imposition upon the precious time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction.

5.4

In view of the aforequoted directive from the Supreme Court, the Plaintiffs are
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obliged under the circumstances to file the instant case before this Honorable Court that has original jurisdiction to try the instant case.

PRAYER

WHEREFORE, premises considered, Plaintiffs respectfully prays that the Order dated August 31, 2004 be reversed and set aside; the Plaintiffs application for the issuance of a writ of preliminary injunction be resolved; and that the pre-trial of the instant case be scheduled.

Other reliefs, just and equitable under the premises, are likewise prayed for.

Pasig City for Pasay City, September 15, 2004.

HENRY S. ROJAS Counsel for the Plaintiffs PTR NO. 0440686 1/19/04 Pasig City IBP NO. 607207 1/15/04 Cavite Roll of Attorneys No. 42023 Unit 702 Manila Luxury Condominium Pearl Drive cor. Gold Loop, Ortigas Center Pasig City

CHARMAINE M. CALALANG Co-Counsel for the Plaintiffs PTR NO. 0022637 11/27/03 Caloocan City IBP NO. 594353 12/29/03 Caloocan City Roll of Attorneys No. 48296

NOTICE OF HEARING

The Clerk of Court Pasay City RTC Branch 111

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Associate Solicitor Tomas D. Tagra, Jr. Office of the Solicitor General Greetings! Please take notice that the instant Motion for Reconsideration shall be submitted for the consideration of the Honorable Court on October 1, 2004 at 8:30 a. m.

HENRY S. ROJAS

Copy furnished by registered mail due to heavy delivery schedule of messenger: Associate Solicitor Tomas D. Tagra, Jr. Office of the Solicitor General 134 Amorsolo St., Legaspi Village Makati City

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