Matters of consideration

This is not the first time that I have written about the judiciary. Nor will it be the last. 

The so-called “last bulwark of democracy,” the third co-equal branch of government, seems to be a cloaked society, wary of the prying eyes of media and the public. But no one in government can or should hide in the shadows. Not when the constituents are demanding transparency and accountability. No one should be beyond scrutiny. Most of all, no one should be above the law.  

The Supreme Court in particular is ultra-sensitive to criticism and fiercely protective of its reputation and turf.  The combination of Mafia-like omerta with ex cathedra authority is disquieting. It cultivates a mystique that projects the illusion of invincibility and promotes an air of infallibility. 

Even now, with newblood infused in the High Tribunal, the archaic traditions live on. If they had their way, no one should question their decisions. 

Let’s examine if their track record merits the unconditional faith they seem to expect. 

Here is a celebrated 1998 case where decisions, or more accurately indecisions, seem to show a chink in the armor. 

The most incredible flip-flopping was done in the case of the Flight Attendants and Stewards Association of the Philippines (FASAP) versus Philippine Airlines (PAL). The timeline as reported in Rappler:

June 15, 1998 - PAL retrenches 5,000 employees, including 1,400 cabin crew personnel as a cost-cutting measure. PAL said it incurred P90-B in liabilities during the 1997 Asian financial crisis. The retrenchment takes effect on July 15. 

June 22, 1998 - FASAP files a complaint for illegal retrenchment at the National Labor Relations Commission against PAL and Patria Chiong, the Assistant Vice President for Cabin Services of PAL,.

July 23, 1998 - The labor arbiter rules in favor of FASAP and issues a preliminary injunction stopping PAL from implementing retrenchment program. He also orders the parties to issue a position paper. 

Sept. 4, 1998 - PAL chairman Lucio Tan dangles shares of stock to employees and 3 seats in its board of directors, but, in exchange, the collective bargaining agreement would be suspended for 10 years. The employees reject the offer. 

Sept. 23, 1998 - PAL stops operations and terminates employees.

November 1998 - March 1999 - PAL starts to recall the cabin crew personnel it retrenched. PAL says it recalled 820 personnel already. FASAP says it only recalled 80. 

Sept. 28, 1999- FASAP files position paper with the National Labor Relations Commission (NLRC).

Nov. 8, 1999- PAL files position paper

July 21, 2000 - Labor arbiter Jovencio Mayor rules in favor of FASAP and orders PAL to reinstate retrenched employees. PAL appeals the decision.

May 31, 2004 - NLRC reverses decision due to lack of merit. FASAP elevates case to the Court of Appeals.

Aug, 23, 2006 - The Court of Appeals affirms NLRC's decision, saying PAL doesn't have to consult FASAP for its criteria on retrenchment program. FASAP files motion for reconsideration.

May 29, 2007 - CA stands by its earlier ruling. FASAP goes to the Supreme Court.

July 22, 2008 - The SC special third division, in a decision penned by Justice Consuelo Ynares-Santiago, rules in favor of FASAP and orders PAL to reinstate retrenched employees. Justices who concurred with this decision are Justices Alicia Austria-Martinez, Minita Chico-Nazario, Antonio Eduardo Nachura and Ruben Reyes.

Aug. 20, 2008 - PAL files motion for reconsideration.

Oct. 2, 2009 - SC special third division affirms 2008 decision with finality. Decision is penned by Ynares-Santiago. Concurring are Justices Nachura, Diosdado Peralta, Nazario and Lucas Bersamin. 

Nov. 3. 2009 - PAL files motion for leave to file, and to admit motion for reconsideration for 2009 decision and second motion for reconsideration for 2008 decision.

Jan. 20, 2010 - The SC third division, then chaired by Associate Justice Renato Corona, grants PAL's motion. Corona inhibits from the case.

June 3, 2010 – Newly-minted CJ Renato Corona  (named Chief Justice in May 2010) orders a revamp of SC divisions. Justice Conchita Carpio-Morales is new chair of third division, with members including Associate Justices Arturo Brion, Bersamin and Villarama.

The FASAP case is raffled off to SC second division because members of the Special third division have retired.

Sept. 7, 2011 - The SC second division dismisses PAL's second motion for reconsideration

Sept. 13, 2011 - PAL lawyer Estelito Mendoza writes the Clerk of Court and asks for an update on the Court's action regarding the case and asks who is the ponente assigned to it.

Sept. 16, 2011 - Mendoza writes a second letter, reiterating request for update.

Sept. 20, 2011 - Mendoza writes another letter, saying they received copy of the Sept. 7 resolution on Sept. 19. He asks for voting on the details on the resolution. The Sept. 7 resolution dismissses PAL's second motion for reconsideration.

Sept. 22, 2011 - Mendoza writes a fourth letter, asking the Clerk of Court to direct queries to Justices Carpio, Arturo Brion, Jose Perez, Diosdado Peralta, Jose Mendoza, Bersamin, if necessary.

Oct. 4, 2011 - The SC en banc orders the recall of Sept. 7 resolution.

Oct. 16, 2011 - In an interview on this day, Mendoza said the SC erred because their motion for reconsideration was decided by the second division, when what the SC should have done was to form a special third division in light of the retirement of certain members of the the third division, which originally handled the FASAP case. 

Oct. 17, 2011 - FASAP files a motion for reconsideration arguing that the Second Division’s ruling had attained finality and therefore could not be legally recalled. They asked the Court to set aside its Oct. 4, 2011 resolution.  

Hopefully it will not take another decade for the final, final,final, final decision on this case. Only one thing is final: the Supreme Court may NOT get it right the first, second or even third time around. -