ELMER CANOY vs. ATTY. JOSE MAX ORTIZ (PROBLEM AREAS IN LEGAL ETHICS)

[A. C. No. 5485. March 16, 2005]

ELMER CANOY, complainant, vs. ATTY. JOSE MAX ORTIZ, respondent.

D E C I S I O N

TINGA, J.:

FACTS:

Elmer Canoy (Canoy) accusing Atty. Jose Max Ortiz (Atty. Ortiz) of misconduct and malpractice. It was alleged that Canoy filed a complaint for illegal dismissal against his former employer, Coca Cola Bottlers Philippines. The complaint was filed with the National Labor Relations Commission (NLRC) Regional Arbitration Board VI in Bacolod City.[2] Atty. Ortiz appeared as counsel for Canoy in this proceeding. In 1998, the labor arbiter hearing the complaint ordered the parties to submit their respective position papers. Canoy submitted all the necessary documents and records to Atty. Ortiz for the preparation of the position paper. Thereafter, he made several unfruitful visits to the office of Atty. Ortiz to follow-up the progress of the case. After a final visit at the office of Atty. Ortiz in April of 2000, during which Canoy was told to come back as his lawyer was not present, Canoy decided to follow-up the case himself with the NLRC. He was shocked to learn that his complaint was actually dismissed way back in 1998, for failure to prosecute, the parties not having submitted their position papers.

Canoy alleged that Atty. Ortiz had never communicated to him about the status of the case, much less the fact that he failed to submit the position paper.

Atty. Ortiz admits though that the period within which to file the position paper had already lapsed. He attributes this failure to timely file the position paper to the fact that after his election as Councilor of Bacolod City, he was frankly preoccupied with both his functions as a local government official and as a practicing lawyer.

He claims not being able to remember whether he immediately informed Canoy of the dismissal of the case, though as far as he could recall, Canoy had conveyed a message to him that he had a lawyer to handle the case, thus his office did not insist on refiling the same.[12]

Eventually, the investigating commissioner concluded that clearly, the records show that [Atty. Ortiz] failed to exercise that degree of competence and diligence required of him in prosecuting his clients (sic) claim, and recommended that Atty. Ortiz be reprimanded.[15]

ISSUE:

Whether Atty. Canoy violated Canon 22 of the Code of Professional Responsibilities.

RULING:

Yes, Assuming that Atty. Ortiz was justified in terminating his services, he, however, cannot just do so and leave complainant in the cold unprotected.[25] Indeed, Rule 22.02 requires that a lawyer who withdraws or is discharged shall, subject to a lien, immediately turn over all papers and property to which the client is entitled, and shall cooperate with his successor in the orderly transfer of the matter. Atty. Ortiz claims that the reason why he took no further action on the case was that he was informed that Canoy had acquired the services of another counsel. Assuming that were true, there was no apparent coordination between Atty. Ortiz and this new counsel.

Neither is the Court mollified by the circumstance of Atty. Ortizs election as a City Councilor of Bacolod City, as his adoption of these additional duties does not exonerate him of his negligent behavior. The Code of Professional Responsibility does allow a lawyer to withdraw his legal services if the lawyer is elected or appointed to a public office.[19] Statutes expressly prohibit the occupant of particular public offices from engaging in the practice of law, such as governors and mayors,[20] and in such instance, the attorney-client relationship is terminated.[21] However, city councilors are allowed to practice their profession or engage in any occupation except during session hours, and in the case of lawyers such as Atty. Ortiz, subject to certain prohibitions which are not relevant to this case.

MONTANO vs IBP (PROBLEM AREAS IN LEGAL ETHICS)

[A.C. No. 4215. May 21, 2001]

FELICISIMO M. MONTANO, complainant, vs. INTEGRATED BAR of the PHILIPPINES AND Atty. JUAN S. DEALCA, respondents.

R E S O L U T I O N

KAPUNAN, J.:

FACTS:

Felicisimo M. Montano charged Atty. Juan Dealca with misconduct.

As per the Montano, he hired the services of Atty. Juan S. Dealca as his counsel in collaboration with Atty. Ronando L. Gerona in a case pending before the Court of Appeals.

The parties agreed upon attorneys fees in the amount of P15,000.00, fifty percent (50%) of which was payable upon acceptance of the case and the remaining balance upon the termination of the case.

Thereafter, even before the respondent counsel had prepared the appellants brief and contrary to their agreement that the remaining balance be payable after the termination of the case, Atty. Dealca demanded an additional payment from complainant. Complainant obliged by paying the amount of P4,000.00.

Prior to the filing of the appellants brief, respondent counsel again demand payment of the remaining balance of 3,500.00. When complainant was unable to do so, respondent lawyer withdrew his appearance as complainants counsel without his prior knowledge and/or conformity. 

Returning the case folder to the complainant, respondent counsel attached a Note dated February 28, 1993,[2]stating:

28 February 1994

Pepe and Del Montano,

For breaking your promise, since you do not want to fulfill your end of the bargain, heres your reward:

Henceforth, you lawyer for yourselves.Here are your papers.

Complainant claimed that such conduct by respondent counsel exceeded the ethical standards of the law profession and prays that the latter be sternly dealt with administratively.

The Investigating Commissioner found respondent counsel guilty of unprofessional conduct and recommended that he be severely reprimanded. However, in a Resolution[3] by the IBP Board of Governors on July 26, 1997, it was resolved that the penalty recommended by the Investigating Commissioner meted to respondent by amended to three (3) months suspension from the practice of law for having been found guilty of misconduct, which eroded the public confidence regarding his duty as a lawyer.

Respondent counsel sought reconsideration of the aforementioned resolution of the IBP, alleging that the latter misapprehended the facts and that, in any case, he did not deserve the penalty imposed. 

The true facts, according to him, are the following:

1. Complainant is being represented by Atty. Ronando L. Gerona in his case on appeal;

2. Due to the ailment of Atty. Geronas daughter, he could not prepare and submit complainants appellants brief on time;

3. Complainant went to the respondent to do just that, i.e., prepare and submit his appellants brief on time at the agreed fee of P15,000.00, 50% down and 50% upon its completion;

4. Working overtime, respondent was able to finish the appellants brief ahead of its deadline, so he advised the complainant about its completion with the request that the remaining balance of P7,500.00 be paid.Complainant paid P4,000.00 only, promising to pay the P3,500.00 tomorrow or on later particular date. 

This promise-non-payment cycle went on repeatedly until the last day of the filing of the brief.

Respondent counsel further averred that complainants refusal to pay the agreed lawyers fees, measly as it was, was deliberate and in bad faith; hence, his withdrawal as counsel was just, ethical and proper. 

ISSUE:

Whether Atty. Dealca violated Canon 22 of Code of Professional Responsibilities.

RULING:

Going into the merits, we affirm the findings made by the IBP that complainant engaged the services of respondent lawyer only for the preparation and submission of the appellants brief and the attorneys fees was payable upon the completion and submission of the appellants brief and not upon the termination of the case.

However, there is sufficient evidence which indicates complainants willingness to pay the attorneys fees. As agreed upon, complainant paid half of the fees in the amount of P7,500.00 upon acceptance of the case. And while the remaining balance was not yet due as it was agreed to be paid only upon the completion and submission of the brief, complainant nonetheless delivered to respondent lawyer P4,000.00 as the latter demanded. This, notwithstanding, Atty. Dealca withdrew his appearance simply because of complainants failure to pay the remaining balance of P3,500.00, which does not appear to be deliberate. The situation was aggravated by respondent counsels note to complainant withdrawing as counsel which was couched in impolite and insulting language.[10]

We find Atty. Dealcas conduct unbecoming of a member of the legal profession. Under Canon 22 of the Code of Professional Responsibility, lawyer shall withdraw his services only for good cause and upon notice appropriate in the circumstances. Although he may withdraw his services when the client deliberately fails to pay the fees for the services,[11]under the circumstances of the present case, Atty. Dealcas withdrawal was unjustified as complainant did not deliberately fail to pay him the attorneys fees. In fact, complainant exerted honest efforts to fulfill his obligation. Respondents contemptuous conduct does not speak well of a member of the bar considering that the amount owing to him was only P3,500.00. 

WHEREFORE, in view of the foregoing, respondent Atty. Juan S. Dealca is REPRIMANDED with a warning that repetition of the same act will be dealt with more severely.

Nottebohm case (Liechtenstein v. Guatemala) [1955] (PUBLIC INTERNATIONAL LAW)

Nottebohm case (Liechtenstein v. Guatemala) [1955]

FACTS:

Friedrich Nottebohm was born September 16, 1881, in Hamburg, Germany. In 1905, he moved to Guatemala, where he went into business in trade, banking, and plantations with his brothers. Nottebohm would live in Guatemala until 1943 as a permanent resident without ever acquiring Guatemalan citizenship.

In 1939, Nottebohm visited Liechtenstein, and on October 9, 1939, shortly after World War II began, he applied for citizenship. His application was approved and he9 became a citizen. Under German law, he lost his German citizenship. In January 1940, he returned to Guatemala on a Liechtenstein passport and informed the local government of his change of nationality.

Guatemala formally declared war on Germany on December 11, 1941. In spite of his Liechtenstein citizenship, the Guatemalan government treated Nottebohm as a German citizen. Nottebohm was arrested by the Guatemalan government as an enemy alien in 1943, handed over to a US military base, and transferred to the US, where he was interned until 1946. The Guatemalan government confiscated all his property in the country, and the US government also seized his company's assets in the US. 

In 1951, the Liechtenstein government, acting on behalf of Nottebohm, brought suit against Guatemala in the International Court of Justice for what it argued was unjust treatment of him and the illegal confiscation of his property. However, the government of Guatemala argued that Nottebohm did not gain Liechtenstein citizenship for the purposes of international law. The court agreed and so stopped the case from continuing.

ISSUE:

Whether Nottebohm is Liechtenstein citizen and entitled to diplomatic protection.

RULING:

Although the Court stated that it is the sovereign right of all states to determine its own citizens and criteria for becoming one in municipal law, such a process would have to be internationally scrutinized if the question is of diplomatic protection. The Court upheld the principle of effective nationality (the Nottebohm principle): the national must prove a meaningful connection to the state in question. That principle had previously been applied only in cases of dual nationality to determine the nationality that should be used in a given case. The court ruled that Nottebohm's naturalization as a citizen of Liechtenstein had not been based on any genuine link with that country, but for the sole purpose of enabling him to replace his status as the national of a belligerent state with that of a neutral state in a time of war. The Court held that Liechtenstein was not entitled to take up his case and put forward an international claim on his behalf against Guatemala:^[4][5]

URC vs LLDA (ADMINISTRATIVE LAW)

UNIVERSAL ROBINA CORP. (CORN DIVISION), Petitioner, - versus - LAGUNA LAKE DEVELOPMENT AUTHORITY, Respondent.

G.R. No. 191427 Present: CARPIO MORALES, J., Chairperson, BRION, BERSAMIN, VILLARAMA, JR., and SERENO, JJ. Promulgated: May 30, 2011

CARPIO MORALES, J.:

         FACTS:

Petitioner challenged by certiorari the twin orders before the Court of Appeals, attributing to LLDA grave abuse of discretion in disregarding its documentary evidence, and maintaining that the lack of any plain, speedy or adequate remedy from the enforcement of LLDAs order justified such recourse as an exception to the rule requiring exhaustion of administrative remedies prior to judicial action.

         ISSUE:

Whether the exhaustion of administrative remedy is needed in this case.

RULING:

Yes, the doctrine of exhaustion of administrative remedies is a cornerstone of our judicial system. The thrust of the rule is that courts must allow administrative agencies to carry out their functions and discharge their responsibilities within the specialized areas of their respective competence.[10]The rationale for this doctrine is obvious. It entails lesser expenses and provides for the speedier resolution of controversies. Comity and convenience also impel courts of justice to shy away from a dispute until the system of administrative redress has been completed.[11]

Executive Order No. 192[12] (EO 192) was issued on June 10, 1987 for the salutary purpose of reorganizing the DENR, charging it with the task of promulgating rules and regulations for the control of water, air and land pollution as well as of promulgating ambient and effluent standards for water and air quality including the allowable levels of other pollutants and radiations. EO 192 also created the Pollution Adjudication Board under the Office of the DENR Secretary which took over the powers and functions of the National Pollution Control Commission with respect to the adjudication of pollution cases, including the latters role as arbitrator for determining reparation, or restitution of the damages and losses resulting from pollution.[13]

Petitioner had thus available administrative remedy of appeal to the DENR Secretary. Its contrary arguments to show that an appeal to the DENR Secretary would be an exercise in futility as the latter merely adopts the LLDAs findings is at best, speculative and presumptuous.

As for petitioners invocation of due process, it fails too. The appellate court thus aptly brushed aside this claim, in this wise:

Due process, as a constitutional precept, does not always and in all situations require a trial-type proceeding. Due process is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend himself. In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer the accusations against him constitute the minimum requirements of due process. The essence of due process is simply to be heard, or as applied to administrative proceedings, an opportunity to explain ones side, or an opportunity to seek a reconsideration of the action or ruling complained of.

. . . Administrative due process cannot be fully equated with due process in its strict judicial sense for it is enough that the party is given the chance to be heard before the case against him is decided.

Here, petitioner URC was given ample opportunities to be heard it was given show cause orders and allowed to participate in hearing to rebut the allegation against it of discharging pollutive wastewater to the Pasig River, it was given the chance to present evidences in support of its claims, it was notified of the assailed Order to Pay, and it was allowed to file a motion for reconsideration. Given these, we are of the view that the minimum requirements of administrative due process have been complied with in this case.[14](emphasis in the original)

ONGSUCO vs MALONES (ADMINISTRATIVE LAW)

EVELYN ONGSUCO and ANTONIA SALAYA, Petitioners, - versus - HON. MARIANO M. MALONES, both in his private and official capacity as Mayor of the Municipality of Maasin, Iloilo, Respondent.

G.R. No. 182065 Present: QUISUMBING,* J., CARPIO, Chairperson, CHICO-NAZARIO, PERALTA, and ABAD,** JJ. Promulgated: October 27, 2009

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

D E C I S I O N

CHICO-NAZARIO, J.:

FACTS:

On 17 August 1998, the Sangguniang Bayan of Maasin approved Municipal Ordinance No. 98-01, entitled The Municipal Revised Revenue Code. The Code contained a provision for increased rentals for the stalls and the imposition of goodwill fees in the amount of P20,000.00 and P15,000.00 for stalls located on the first and second floors of the municipal public market, respectively. The same Code authorized respondent to enter into lease contracts over the said market stalls,[5]and incorporated a standard contract of lease for the stall holders at the municipal public market.

Petitioners argued that public hearing was mandatory in the imposition of goodwill fees. Section 186 of the Local Government Code of 1991 provides that an ordinance levying taxes, fees, or charges shall not be enacted without any prior hearing conducted for the purpose. Municipal Ordinance No. 98-01, imposing goodwill fees, is invalid on the ground that the conferences held on 11 August 1998and 22 January 1999 could not be considered public hearings. According to Article 277(b)(3) of the Implementing Rules and Regulations of the Local Government Code:

(3) The notice or notices shall specify the date or dates and venue of the public hearing or hearings. The initial public hearing shall be held not earlier than ten (10) days from the sending out of the notice or notices, or the last day of publication, or date of posting thereof, whichever is later. (Emphasis ours.)

The letter from the Office of the Municipal Mayor was sent to stall holders on 6 August 1998, informing the latter of the meeting to be held, as was in fact held, on 11 August 1998, only five days after notice.[12]

ISSUE:

WHETHER OR NOT EXHAUSTION OF ADMINISTRATIVE REMEDIES IS APPLICABLE IN THIS CASE; AND

RULING:

After a close scrutiny of the circumstances that gave rise to this case, the Court determines that there is no need for petitioners to exhaust administrative remedies before resorting to the courts.

It is true that the general rule is that before a party is allowed to seek the intervention of the court, he or she should have availed himself or herself of all the means of administrative processes afforded him or her. Hence, if resort to a remedy within the administrative machinery can still be made by giving the administrative officer concerned every opportunity to decide on a matter that comes within his or her jurisdiction, then such remedy should be exhausted first before the courts judicial power can be sought. The premature invocation of the intervention of the court is fatal to ones cause of action. The doctrine of exhaustion of administrative remedies is based on practical and legal reasons. The availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. Furthermore, the courts of justice, for reasons of comity and convenience, will shy away from a dispute until the system of administrative redress has been completed and complied with, so as to give the administrative agency concerned every opportunity to correct its error and dispose of the case.However, there are several exceptions to this rule. [26]

The rule on the exhaustion of administrative remedies is intended to preclude a court from arrogating unto itself the authority to resolve a controversy, the jurisdiction over which is initially lodged with an administrative body of special competence. Thus, a case where the issue raised is a purely legal question, well within the competence; and the jurisdiction of the court and not the administrative agency, would clearly constitute an exception.[27] Resolving questions of law, which involve the interpretation and application of laws, constitutes essentially an exercise of judicial power that is exclusively allocated to the Supreme Court and such lower courts the Legislature may establish. [28]

In this case, the parties are not disputing any factual matter on which they still need to present evidence. The sole issue petitioners raised before the RTC in Civil Case No. 25843 was whether Municipal Ordinance No. 98-01 was valid and enforceable despite the absence, prior to its enactment, of a public hearing held in accordance with Article 276 of the Implementing Rules and Regulations of the Local Government Code. This is undoubtedly a pure question of law, within the competence and jurisdiction of the RTC to resolve.

CEMCO HOLDINGS, INC., vs NATIONAL LIFE INSURANCE COMPANY OF THE PHILIPPINES, INC. (ADMINISTRATIVE LAW),

CEMCO HOLDINGS, INC., Petitioner, - versus - NATIONAL LIFE INSURANCE COMPANY OF THE PHILIPPINES, INC., Respondent.

G.R. No. 171815 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, and NACHURA, JJ. Promulgated: August 7, 2007

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

D E C I S I O N

CHICO-NAZARIO, J.:

FACTS:

Petitioner filed a petition with the Court of Appeals challenging the SECs jurisdiction to take cognizance of respondents complaint and its authority to require Cemco to make a tender offer for UCC shares, and arguing that the tender offer rule does not apply, or that the SECs re-interpretation of the rule could not be made to retroactively apply to Cemcos purchase of UCHC shares.

ISSUE:

Whether or not the SEC has jurisdiction over respondents complaint and to require Cemco to make a tender offer for respondents UCC shares.

RULING:

SEC was acting pursuant to Rule 19(13) of the Amended Implementing Rules and Regulations of the Securities Regulation Code, to wit:

13. Violation

If there shall be violation of this Rule by pursuing a purchase of equity shares of a public company at threshold amounts without the required tender offer, the Commission, upon complaint, may nullify the said acquisition and direct the holding of a tender offer. This shall be without prejudice to the imposition of other sanctions under the Code.

The foregoing rule emanates from the SECs power and authority to regulate, investigate or supervise the activities of persons to ensure compliance with the Securities Regulation Code, more specifically the provision on mandatory tender offer under Section 19 thereof.[7]

Another provision of the statute, which provides the basis of Rule 19(13) of the Amended Implementing Rules and Regulations of the Securities Regulation Code, is Section 5.1(n), viz:

[T]he Commission shall have, among others, the following powers and functions:

x x x x

(n) Exercise such other powers as may be provided by law as well as those which may be implied from, or which are necessary or incidental to the carrying out of, the express powers granted the Commission to achieve the objectives and purposes of these laws.

The foregoing provision bestows upon the SEC the general adjudicative power which is implied from the express powers of the Commission or which is incidental to, or reasonably necessary to carry out, the performance of the administrative duties entrusted to it. As a regulatory agency, it has the incidental power to conduct hearings and render decisions fixing the rights and obligations of the parties. In fact, to deprive the SEC of this power would render the agency inutile, because it would become powerless to regulate and implement the law. As correctly held by the Court of Appeals:

We are nonetheless convinced that the SEC has the competence to render the particular decision it made in this case. A definite inference may be drawn from the provisions of the SRC that the SEC has the authority not only to investigate complaints of violations of the tender offer rule, but to adjudicate certain rights and obligations of the contending parties and grant appropriate reliefs in the exercise of its regulatory functions under the SRC. Section 5.1 of the SRC allows a general grant of adjudicative powers to the SEC which may be implied from or are necessary or incidental to the carrying out of its express powers to achieve the objectives and purposes of the SRC. We must bear in mind in interpreting the powers and functions of the SEC that the law has made the SEC primarily a regulatory body with the incidental power to conduct administrative hearings and make decisions. A regulatory body like the SEC may conduct hearings in the exercise of its regulatory powers, and if the case involves violations or conflicts in connection with the performance of its regulatory functions, it will have the duty and authority to resolve the dispute for the best interests of the public.[8]

EASTERN SHIPPING LINES, INC. vs POEA (ADMINISTRATIVE LAW)

G.R. No. 76633 October 18, 1988

EASTERN SHIPPING LINES, INC., petitioner, 
vs.
PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA), MINISTER OF LABOR AND EMPLOYMENT, HEARING OFFICER ABDUL BASAR and KATHLEEN D. SACO, respondents.

Jimenea, Dala & Zaragoza Law Office for petitioner.

The Solicitor General for public respondent.

Dizon Law Office for respondent Kathleen D. Saco.

CRUZ, J.:

FACTS:

The private respondent in this case was awarded the sum of P192,000.00 by the Philippine Overseas Employment Administration (POEA) for the death of her husband. The decision is challenged by the petitioner on the principal ground that the POEA had no jurisdiction over the case as the husband was not an overseas worker.

ISSUE:

Whether Memorandum Circular No. 2 itself as violative of the principle of non-delegation of legislative power. 

RULING:

Yes, The authority to issue the said regulation is clearly provided in Section 4(a) of Executive Order No. 797, reading as follows:

... The governing Board of the Administration (POEA), as hereunder provided shall promulgate the necessary rules and regulations to govern the exercise of the adjudicatory functions of the Administration (POEA).

There are two accepted tests to determine whether or not there is a valid delegation of legislative power, viz, the completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate the only thing he will have to do is enforce it. 13 Under the sufficient standard test, there must be adequate guidelines or stations in the law to map out the boundaries of the delegate's authority and prevent the delegation from running riot. 14

Memorandum Circular No. 2 is one such administrative regulation. The model contract prescribed thereby has been applied in a significant number of the cases without challenge by the employer. The power of the POEA (and before it the National Seamen Board) in requiring the model contract is not unlimited as there is a sufficient standard guiding the delegate in the exercise of the said authority. That standard is discoverable in the executive order itself which, in creating the Philippine Overseas Employment Administration, mandated it to protect the rights of overseas Filipino workers to "fair and equitable employment practices."

WHEREFORE, the petition is DISMISSED, with costs against the petitioner.

Lina vs Cariño (ADMINISTRATIVE LAW)

G.R. No. 100127. April 23, 1993.

JOSE D. LINA, JR., petitioner,
vs.
ISIDRO D. CARINO, in his capacity as Secretary of Education, Culture and Sports, respondents. 

FACTS:

This is a Petition for Prohibition and Mandamus filed by petitioner Senator Jose D. Lina, Jr., principally as taxpayer, against respondent Isidro D. Cariño, in the latter's capacity as the then Secretary of the Department of Education, Culture & Sports ("DECS"). Petitioner disputes the legal authority of respondent Cariño to issue DECS Order No. 30, series of 1991, dated 11 March 1991, entitled "Guidelines on Tuition and/or other School Fees in Private Schools, Colleges and Universities for School Year 1991-1992." DECS Order No. 30 allows private schools to increase tuition and other school fees, subject to the guidelines there set out. The complete text of DECS Order No. 30 is reproduced here for ready reference.

ISSUE:

(1) Whether DECS Order No. 30 is valid, that is, whether respondent DECS Secretary has the legal authority to issue DECS Order No. 30 prescribing guidelines concerning increases in tuition and other school fees: and

RULING:

Having concluded that under B.P. Blg. 232 the collection and application or use of tuition and other school fees are subject only to the limitations under the rules and regulations issued by the Ministry, the crucial point now shifts to the said implementing rules." 11 (Emphasis supplied)

Secondly, an examination of the precise language of Section 42 of B.P. Blg. 232 shows that there is really nothing in Section 42 which must be read as eliminating the power of the DECS Secretary in respect of the fixing of maximum tuition and other school fees vested in him by P.D. No. 451. Under Section 42, a private school may determine for itself in the first instance the rate of tuition and other school fees or charges that it deems appropriate. Such determination by the private school is not, however, binding and conclusive as against the secretary of Education, Culture and Sports. The rates and charges adopted by such private school "shall be collectible, and their application or use authorized" provided that such rates and charges are in accord with rules and regulations promulgated by the DECS.

It is convenient to quote Section 42 again:

"Sec. 42. Tuition and Other School Fees. — Each Private school shall determine its rate of tuition and other school fees or charges. The rates and charges adopted by schools pursuant to this provision shall be collectible, and their application or use authorized, subject to rules and regulations promulgated by the Ministry of Education, Culture and Sports." (Emphasis supplied).

We do not read the first sentence of Section 42 as granting an unlimited power to private schools to establish any rate of tuition and other school fees and charges that it may desire and to enforce collection of such fees or charges from students. We think it entirely clear that the second sentence of Section 42 is a limiting provision, that is, a provision which, far from authorizing a private school to adopt any level of tuition and other school fees or charges no matter how exorbitant, subjects the schedule of rates and charges adopted by a particular school to the rules and regulations promulgated by the DECS. Thus, the rates and charges adopted by any given private school shall be "collectible". i.e., enforceable against the students and their parents, to the extent that they are consistent with DECS rules and regulations. Put a little differently, the second sentence of Section 42 deals with two (2) distinguishable subjects: (a) the enforceability of rates of fees and charges adopted by private schools: and (b) the enforceability of proposed applications or uses of tile proceeds of such school fees or charges — and both are declared subject to rules and regulations promulgated by the DECS.

We turn to the argument of petitioner Lina that the DECS Secretary was divested of his authority to promulgate rules and regulations relating to the fixing of tuition and other school fees, by R.A. No. 6728, and that such authority has been transferred instead to the SAC. The Court is unable to agree with this contention. We do not see how R.A. No. 6728 could be regarded as vesting upon the SAC the legal authority to establish maximum permissible tuition and other school fees for private schools. As earlier noted, R.A. No. 6728 deals with government assistance to students and teachers in private schools; it does not, in other words, purport to deal at all with the question of authority to fix maximum collectible tuition and other school fees. R.A. No, 6728 did authorize the SAC to issue rules and regulations; but the rules and regulations which may be promulgated by the SAC must relate to the authority granted by R.A. No. 6728 to the SAC. It is axiomatic that a rule or regulation must bear upon, and be consistent with, the provisions of the enabling statute if such rule or regulation is to be valid. 12 The SAC was authorized to define the classes of students who may be entitled to claim government financial assistance. Under the statute, students of schools charging tuition and other school fees in excess of certain identified rates or levels thereof shall not be entitled to claim government assistance or subsidies. The specification of such levels of tuition and other school fees for purposes of qualifying (or disqualifying) the students in such schools for government financial assistance is one thing; this is the task SAC was authorized to carry out though the promulgation of rules and regulations. The determination of the levels of tuition and other school fees which may lawfully be charged by any private school, is clearly another matter; this task is vested in respondent Secretary.

It is hardly necessary to add that the Court, in reaching the above conclusion, is not saying that every paragraph and sub-paragraph of DECS Order No. 30 is necessarily valid and consistent with the provisions of the enabling statute(s). We do not understand the parties to be asking us to validate or strike down every such paragraph and sub-paragraph.

In respect of the second principal issue, petitioner Lina contends that Section 1(d) of DECS Order No. 30 is inconsistent with Section 10 of R.A. No. 6728. We have earlier pointed out that petitioner's stand is inconsistent with the very language used in Section 10 of R.A. No. 6728 which states in relevant part that: "in any proposed increase in the rate of tuition fees, there shall be appropriate consultations —." Petitioner Lina's argument here is, however, essentially an invocation of "justice and equity." Petitioner argues that:

". . . [T]here is no basis, legal or otherwise, for the respondent Secretary to view 'other fees' as separate and distinct from 'tuition fee rate' for purposes of the consultation requirement of the law. To exclude the imposition of 'other fees' from the consultation process would result in an anomalous situation whereby so-called 'other fees' may become so burdensome that the students and parents concerned may be deprived of the right of being heard or consulted on matter directly affecting their interest. Justice and equity demand that any increase in the tuition fee, tuition fee assessment or 'other fees' which in its totality increases the cost of education, should and must be subjected to consultation, as required in Section 10, R.A. No. 6728." 13 (Emphasis supplied).

The Court believes that petitioner's argument — cogent though it may be as a social and economic comment — is most appropriately addressed. not to a court which must take the law as it is actually written, but rather to the legislative authority which can, if it wishes, change the language and content of the law. As Section 10 of R.A. No. 6728 now stands, we have no authority to strike down paragraph 1 (d) of DECS Order No. 30 as inconsistent with the requirements of Section 10.

Summarizing, the first issue we must answer in the affirmative. To the second issue, we must give a negative answer.