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[G.R. No. 155108.
REPUBLIC OF THE PHILIPPINES, REPRESENTED BY DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS (DPWH) UNDER SECRETARY SIMEON DATUMANONG AND UNDERSECRETARY EDMUNDO V. MIR, THEN CHAIRMAN OF BID AND AWARDS COMMITTEE (BAC), ASSISTANT SECRETARY BASHIR D. RASUMAN, BAC VICE-CHAIRMAN, DIRECTOR OSCAR D. ABUNDO, BAC MEMBER DIRECTOR OIC-DIRECTOR ANTONIO V. MALANO, JR., BAC MEMBER AND PROJECT DIRECTOR PHILIP F. MENEZ v. EMILIANO R. NOLASCO
Second Division
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of this
Court dated
G.R. No. 155108 (Republic of the Philippines, Represented By Department of Public Works and Highways (DPWH) Under Secretary Simeon Datumanong and Undersecretary Edmundo V. Mir, then Chairman of Bid and Awards Committee (BAC), Assistant .Secretary Bashir D. Rasuman, BAC Vice-Chairman, Director Oscar D. Abundo, BAC Member Director OIC-Director Antonio V. Malano, Jr., BAC Member and Project Director Philip F. Menez v. Emiliano R. Nolasco)
This dispenses with the motion filed by private respondent Emiliano Nolasco (Nolasco) seeking to cite in direct contempt Solicitor General Alfredo Benipayo (Solicitor General) [1] cralaw and Associate Solicitor Rebecca Dacanay (Dacanay), who both represented the Office of the Solicitor General, counsel for petitioner in this case. The case itself, which involved the review of orders promulgated by the Regional Trial Court (RTC) of Manila, Branch 32, in Civil Case No. 02-102923, was decided in a Decision [2] cralaw dated 27 April 2005, and has since become final after neither party opted to file a Motion for Reconsideration thereto.
This present motion is premised on the allegation that the Solicitor General and Dacanay have somehow committed "falsification, manipulation, subversion and fraud" in a letter to the Secretary of the Department of Public Works and Highways (DPWH), Hermogenes Ebdane, dated 8 June 2005. The letter, signed by the Solicitor General, advised the DPWH Secretary that "based on [this Court's] Decision, there is no more legal impediment at this point in time, in the award of the subject [Project Contract] to DAEWOO Engineering & Construction Co. Ltd." [3] cralaw Nolasco argues that contrary to this opinion of the Solicitor General, the Decision instead held that China International Water & Electric Corporation (CIWEC) "must be awarded the project", since respect must be accorded to the alleged factual findings of the Regional Trial Court (RTC) of Manila, Branch 32, that CIWEC had "the lowest evaluated responsive bid." [4] cralaw
In their Comment, the Solicitor General and Dacanay argue that Nolasco's own interpretation of the Court's Decision is in "blatant disregard, if not [misrepresentation] of what [the Court] clearly pronounced." They point out that the Court had declared as obiter dictum the portion in the challenged RTC Order, which had been the subject of this petition, that the DPWH Secretary should consider awarding the Project to CIWEC. They argue that the motion to cite them in direct contempt is actually a ploy to re-open the issue of whether the RTC validly decided in favor of Nolasco and CIWEC.
For certain, direct contempt cannot be a viable penalty against the Solicitor General and Dacanay even if their behavior can be considered as contemptuous. Direct contempt, which is adjudged summarily, applies only to persons "guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same." [5] cralaw The act complained of consisted of the writing of a letter by the Solicitor General to the DPWH Secretary, an act that cannot be deemed as "in the presence of or so near a court as to obstruct or interrupt the proceedings before the same."
Nolasco claims that the letter of the Solicitor General to the
DPWH Secretary was "unsolicited," thus implying that there was a
tinge of malice in the very act of sending the letter. The implication is material especially
considering that two days before the date of the letter, the Chief of the Legal
Affairs Service of the DPWH wrote a Memorandum opining that the Court's
Decision was "to award the contract x x x of the Agno Flood Control Project to [CIWEC],"
[6]
cralaw a
position clearly contrary to that of the Solicitor General. Nonetheless, it should be noted that the
first paragraph of the Solicitor General's letter stated that the purpose of
such letter was "to inform [the DPWH Secretary] of the [OSG's] receipt of
the Supreme Court Decision promulgated
Moreover, the letter itself is signed only by the Solicitor General, and not Dacanay. Nolasco alleges that the letter was obviously written by Dacanay "because of the English terminology being used," [8] cralaw but that reasoning is just plain silly and cannot be accorded any weight to support the conclusion that the letter links Dacanay to any contemptuous act.
Nolasco does further allege, in relation to a spurious RTC Order which the Court adverted to in its Decision, [9] cralaw that "[i]t is now clear that the one who manufactured the alleged [M]arch 22, 200[2] RTC Order was [Dacanay]." That conclusion is apparently derived from a Resolution issued by Assistant Investigating Prosecutor Wilfredo B. Lasala of the Manila City Prosecutor's Office dismissing a complaint for falsification filed by Daewoo accusing Nolasco of authoring the spurious RTC order. The Resolution opined that "the complainant who was in possession of the order in question may be presumed to be the author of the falsification thereof." [10] cralaw Even if that statement could be considered imputative against Dacanay, who was not the complainant in the said complaint, such conclusion is hardly binding on the Court, nor definitive as proof that Dacanay had indeed forged the RTC order. The incidents relating to the spurious RTC Order cannot serve as basis for the present contempt charge against Dacanay.
Even though the charges for contempt are palpably unmeritorious
the Court considers it useful to dwell in brief upon what obviously is at the
heart of these pending incidents - the effect of the Court's Decision
promulgated on
The Decision had affirmed the Order dated
Accordingly, the effect of the Court's Decision was simply to confirm Civil Case No. 02-102923, initiated by Nolasco, as dismissed, closed and terminated. The Court's Decision does not compel any party, whether it be Nolasco, the OSG, the DPWH, Daewoo or CIWEC, towards any act or behavior except to desist from any further action in Civil Case No. 02-102923. If despite the Court's Decision, Which is now final and executory, litigation of Civil Case No. 02-102923 has persisted, such action directly contravenes the decision of the Court. Any other reactive step of the parties not connected to the pursuit of litigation of Civil Case No. 02-102923 is not barred by the Court's Decision.
To be emphatic about it, the Court's Decision does not compel, or in any way even suggest, the DPWH award the project to either Daewoo or CIWEC. Per the Decision's, statement of facts, it appears that in 2002, then DPWH Secretary Simeon Datumanong approved the recommendation of the Bids and Awards Committee that the project be awarded to Daewoo, and that such recommendation was then furnished to the foreign investor, Japan Bank for International Cooperation, for review and concurrence. [12] cralaw The Court's Decision does not affirm or reverse that particular act of the DPWH, or any subsequent act of the DPWH relating to the Agno River project. If any party wishes to seek judicial review of whatever actions of the DPWH concerning the Agno River project, the proper case should be filed before the proper tribunal. What the Court's Decision precludes is the utilization of Civil Case No. 02-102923, or Nolasco's "petition" therein, for such purposes, as that case is now closed and terminated, with Nolasco's initiatory pleading therein irrevocably dismissed. Indeed, the Court took pains in pointing put the multiple defects of Nolasco's "petition," and it could hardly be given credence as the source of any viable cause of action.
A final note. The subject matters involve an essential public works project to be funded by foreign investors. As such, it stands as an area of concern within the populace and the foreign financial community. It goes Without saying that the involved or concerned government agencies, the prospective bidders, and interested citizens such as Nolasco who choose to involve themselves in the matter are expected to behave, within the confines of the law, especially as close scrutiny bears upon them. Any delay or problems caused by chicanery or inefficiency will not only embarrass the Philippine government in the eyes of the foreign community; it will also do a massive disservice to the Filipino people.
WHEREFORE, private respondent's motion dated 5 September 2005 is DENIED for LACK OF MERIT. Considering that the Decision of the Court dated 27 April 2005, affirming the dismissal of Civil Case No. 02-102923 has already become final and executory, NO FURTHER PLEADINGS shall be entertained by this Court.
Very truly yours,
(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court
Endnotes:
[1] cralaw Who has since resigned the post of Solicitor General.
[2] cralaw Republic v. Nolasco, G.R. No 155108, 27 April 2005, 457 SCRA 400.
[3] cralaw Rollo, p. 1643.
[4] cralaw Id. at 1619.
[5] cralaw See Section 1, Rule 71, Rules of Court.
[6] cralaw See rollo , p. 1619.
[7] cralaw Rollo, p. 1636.
[8] cralaw Id. at 1620.
[9] cralaw Supra note 2, at 411, 436.
[10] cralaw Rollo, p. 1624.
[11] cralaw The Court likewise pointed out that if the controversial portion of the RTC Order were somehow deemed executory, such disposition would be contrary to law.
[12] cralaw See Republic v. Nolasco, supra note 2 at 411.
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