G.R. No. 180046 – REVIEW CENTER ASSOCIATION OF THE PHILIPPINES, petitioner, versus EXECUTIVE SECRETARY EDUARDO ERMITA AND
COMMISSION ON HIGHER EDUCATION REPRESENTED BY ITS CHAIRMAN ROMULO L. NERI, respondents.
Promulgated: April 2, 2009
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SEPARATE CONCURRING OPINION
BRION, J.:
I concur with the ponencia that EO 566 and the instruments derived from this EO should be
declared invalid. At the same time, I maintain that the President of the
A holistic reading of R.A. 8981 shows that it attempts to provide the
blue print for a credible and effective Philippine licensure examination system
and process. Under this law, the
Professional Regulation Commission (an entity under the Executive Department together
with the Commission on Higher Education) was given – among other powers related
with its primary mandate to establish and
maintain a high standard of admission to the practice of all professions and at all times ensure and safeguard the
integrity of all licensure examinations – the full authority to promulgate rules and regulation to
implement its mandate. To be sure, R.A.8981
does not narrowly or restrictively concern itself with the conduct of actual
examinations alone as the ponencia
discussed; it covers and relates as well to the various integral and/or
institutional components of the licensure examination process or system.
I find it unfortunate that R.A. 7722 was made the basis for the
regulation of review centers, when R.A. 8981 could have provided opportunities,
appropriate to the PRC, to achieve
the same end. This is unfortunate under the circumstances since the invalidity
of using R.A. 7722 as the legal basis, without saying more on what can be a
viable alternative, can leave a major player in the Philippine licensure
examination process immune, even for a time, from regulation. It is for this
compelling reason that I have tackled in this Separate Concurring Opinion the alternative
and (while not fully determinative of the issue of the validity of EO 566) the
related issues of: (1) whether the business of review centers can be the
subject of regulation; (2) if so, on what legal basis; and (3) again, if so,
which governmental authority has been vested with jurisdiction by law.
The Background Facts
The Office of the Solicitor General (OSG) objects to the filing of the present petition directly with
this Court, based on the principle of hierarchy of courts. The principle, as a
rule, can be invoked where no compelling reason exists for a direct resort to
this Court.[1]
However, a compelling reason does exist as the ponencia properly noted. Likewise, there are no major issues of
fact that are essentially for the trial or lower courts to handle as triers of
facts;[2] hence,
direct resort to this Court is justified.
In this regard, at the petitioners’ urging and based on the implicit
stance of all other parties to take judicial notice of the background facts,[3] I am
providing a fuller account of the background of the case based on parallel
official developments, all of them related to the root of the present issue –
the nursing exam scandal of 2006. This background – albeit footnoted because
they do not all directly affect the present case – may lead to a fuller appreciation of the case
and the view I am putting forward, and is offered in the spirit of George
Santayana’s advice to remember the past to avoid being condemned to its
repetition.[4]
The
President Has Legal Basis to Regulate,
but under R.A. 8981, not R.A. 7722
I hold the view that the President has sufficient legal basis to
regulate review centers and could have done so under an existing validly
delegated authority. This authority,
however, is not based on the charter of the CHED, R.A. 7722; hence, the
issuance of EO 566 on the basis of R.A. 7722 was an illegal act of subordinate legislation
undertaken without statutory basis.
The law dealing with leakage and manipulation of licensure
examinations is Republic Act No. 8981 (the PRC
Law).[5] Section 5 of this law defines the PRC’s
primary mandate, which is to establish
and maintain a high standard of admission to the practice of all professions
and at all times ensure and safeguard
the integrity of all licensure examinations. Some of the PRC’s powers, functions and
responsibilities under Section 7 of the law include:
Section
7. Powers,
Functions and Responsibilities of the Commission. – The powers, functions, and responsibilities of the
Commission are as follows:
x x x x
(d)
To administer and conduct the licensure examinations of the various regulatory
boards in accordance with the rules and regulations promulgated by the
Commission; determine and fix the places and dates of examinations; use
publicly or privately-owned buildings and facilities for examination purposes;
conduct more than one (1) licensure examination: Provided, That, when
there are two (2) or more examinations given in a year, at least one (1)
examination shall be held on weekdays (Monday to Friday): Provided, further,
That, if only one (1) examination is given in a year, this shall be held only
on weekdays: Provided, finally, That, the Commission is also authorized
to require the completion of a refresher course where the examinee has failed
to pass three (3) times, except as otherwise provided by law; approve the
results of examinations and the release of the same; adopt measures to preserve the integrity and inviolability of licensure
examinations; appoint supervisors and room watchers from among the
employees of the government and/or private individuals with baccalaureate
degrees, who have been trained by the Commission for the purpose and who shall
be entitled to a reasonable daily allowance for every examination day actually
attended, to be determined and fixed by the Commission; publish the list of
successful examinees; provide schools, colleges and universities, public and
private, offering courses for licensure examinations, with copies of sample
test questions on examinations recently conducted by the Commission and copies
of the syllabi or terms of specifications of subjects for licensure
examinations; and impose the penalty of suspension or prohibition from taking
licensure examinations to any examinee charged and found guilty of violating
the rules and regulations governing the conduct of licensure examinations
promulgated by the Commission;
x x x x
(s)
To investigate motu proprio or
upon the filing of a verified complaint, any member of the Professional
Regulatory Boards for neglect of duty, incompetence, unprofessional, unethical,
immoral or dishonorable conduct, commission of irregularities in the licensure
examinations which taint or impugn the integrity and authenticity of the
results of the said examinations and, if found guilty, to revoke or suspend
their certificates of registration and professional licenses/identification
cards and to recommend to the President of the Philippines their suspension or
removal from office as the case may be;
x x x x
(y)
To perform such other functions and
duties as may be necessary to carry out the provisions of this Act, the various
professional regulatory laws, decrees, executive orders and other
administrative issuance
Complementing these mandates are the penal provisions giving teeth to
the PRC’s regulatory powers. Section 15
of the PRC Law provides:
Section
15. Penalties
for Manipulation and Other Corrupt Practices in the Conduct of Professional
Examinations. –
(a)
Any person who manipulates or rigs licensure examination results, secretly
informs or makes known licensure examination questions prior to the conduct of
the examination or tampers with the grades in professional licensure examinations
shall, upon conviction, be punished by imprisonment of not less than six (6)
years and one (1) day to not more than twelve (12) years or a fine of not less
than Fifty thousand pesos (P50,000.00) to not more than One hundred thousand
pesos (P100,000.00) or both such imprisonment and fine at the discretion of the
court.
Another critical power under Section 17 of the law is the authority to
promulgate the necessary rules and regulations needed to implement its
provisions.
Section 17. Implementing rules and Regulations. Within
ninety (90) days after the approval of this Act, the Professional Regulation
Commission, together with the representatives of the various Professional
Regulatory Boards and accredited professional organizations, the DBM, and the
CHED shall prepare and promulgate the necessary rules and regulations needed to
implement the provisions of this Act.
To be
valid, this authority must be exercised on the basis of a policy that the law wishes to enforce and of sufficient standards that mark the limits of the legislature’s
delegation of authority. The
completeness of this delegation is evidenced by the PRC Law’s policy statement
which provides:
Section 2. Statement of Policy. The State recognizes the important role
of professionals in nation-building and, towards this end, promotes the
sustained development of a sustained reservoir of professionals whose
competence has been determined by honest and credible licensure examinations
and whose standards of professional service and practice are internationally
recognized and considered world-class brought by the regulatory measures,
programs and activities that foster professional growth and advancement.
Read
together with the grant of powers and functions under Section 5 (particularly the
statement that – “the Commission shall
establish and maintain a high standard of admission to the practice of all
professions and at all times ensure and safeguard the integrity of all
licensure examinations”), both policy and standards are therefore present
as required by law and jurisprudence.[6]
Whether review centers can be the legitimate subjects of PRC
regulation, given the above-described experience with the nursing board
examination leakage and the terms of the PRC Law, is not a hard question to
answer. Review centers, because of the
role they have assumed and the reliance on them by examinees, have become
active participants in the licensure examination process, and their involvement
can neither be downplayed nor ignored.
Board examinees now undergo review preparatory to licensure examinations
as a matter of accepted practice, and pay considerable sums to avail themselves
of the services review centers offer.
These services include the provision of review materials; lectures on
examination methods; practice examinations to simulate the actual exam
environment; and final coaching just before the actual examination date. To some exam candidates, these services have
become security blankets that, whether true or not, boost their confidence come
examination time. Not the least of the
considerations, of course, is that the review center industry has now become a
billion-peso industry with sufficient means and resources for the corrupt
elements of the industry to subvert the integrity and reputation of the
licensure examinations. PRC experiences in the last few years attest to this
reality.[7] Thus,
the integrity and effectiveness of review centers are now basic considerations
in ensuring an honest and credible licensure examination system. In these lights, the regulation of review
centers is a must for the PRC, given its duty to adopt measures that will preserve
the integrity and inviolability of licensure examinations.
Thus, unlike the CHED, the PRC has the requisite
authority or mandate under the PRC Modernization Law to regulate the
establishment and operation of review centers.
Can the President transfer the power of
regulation granted the PRC to CHED?
This question essentially arises under the premise that review centers
fall under the PRC's mandate so that there is no gap in the law, and the
President, in the exercise of her power of control, can regulate review
centers. Can this presidential authority
be now cited as basis to argue for the validity of EO 566?
The short and quick answer is no, because the disputed EO does not
even invoke the PRC Law as its legal basis.
Nor can the EO be revived by simply re-issuing it, citing the PRC Law
and the authority of the President of the
The President, as Chief Executive, has the power of control over all
the executive departments, bureaus, and offices.[8] The power of control refers to the power of
an officer to alter, modify, nullify, or set aside what a subordinate officer
has done in the performance of his duties, and to substitute the judgment of
the former for that of the latter.[9] Under this power, the President may directly
exercise a power statutorily given to any of his subordinates, as what happened
in the old case of Araneta v. Gatmaitan,[10] where
President Ramon Magsaysay himself directly exercised the authority granted by
Congress to the Secretary of Agriculture and Natural Resources to promulgate
rules and regulations concerning trawl fishing.
We similarly ruled in Bermudez v.
Torres when we said that the President, being the head of the Executive
Department, can very well disregard or do away with the action of the
departments, bureaus or offices even in the exercise of discretionary
authority; in so opting, he cannot be said to be acting beyond the scope of his
authority.[11]
The statutory support for this authority is provided under Section 31
(2), Chapter 10, Title III, Book III of Executive Order No. 292, otherwise
known as the Administrative Code of 1987 (EO
292), which states:
Sec. 31. Continuing
Authority of the President to Reorganize his Office. - The President,
subject to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have continuing authority to
reorganize the administrative structure of the Office of the President. For
this purpose, he may take any of the following actions:
(1) Restructure
the internal organization of the Office of the President Proper, including the
immediate Offices, the Presidential Special Assistants/Advisers System and the
Common staff Support System, by abolishing, consolidating or merging units
thereof or transferring functions from one unit to another;
(2) Transfer any function under the
Office of the President to any other Department or Agency as well as transfer
functions to the Office of the President from other Departments and Agencies; and
(3) Transfer
any agency under the Office of the President to any other department or agency
as well as transfer agencies to the Office of the President from other
departments or agencies.
The President’s direct exercise of the power of subordinate
legislation is done via the issuance
of an executive or administrative order, defined under Section 2, Chapter 2,
Book III of EO 292, as an ordinance issued by the President providing for rules of a general or permanent
character in the implementation or execution of constitutional or statutory
powers.
The valid grant of the authority to issue
subordinate legislation to the PRC and the exercise of this power by the
President as the head of the executive department of government, however, do
not extend to the authority of the President to take control of the PRC’s
powers under the PRC Law, and to assign these to another agency within the
executive branch.
Effectively, this was what happened in the
present case; the President, through EO 566, took control of the PRC’s
authority to issue subordinate legislation to regulate review centers, and
transferred this power to the CHED. This
is an illegal sub-delegation of delegated power. What has once been delegated by Congress can
no longer be further delegated by the original delegate to another, expressed
in the Latin maxim – potestas delegata
non delegare potest.[12] When
the PRC Law granted the power of subordinate legislation to the PRC, the
mandate was given to this agency (and under the control powers of the
President, to the President by necessary implication) as the original delegate;
the faithful fulfillment of this mandate is a duty that the PRC itself, as the
delegate, must perform using its own judgment and not the intervening mind of
another.[13]
Additionally, EO 566 placed entities
subject to the jurisdiction of a particular agency (in this case, the PRC)
under the jurisdiction of another (the CHED).
As the cited reorganization powers of the President show, the
statutorily-allowed transfer of functions refers to those from the Office of
the President to the departments and agencies, or from the departments and
agencies to the Office of the President. This proceeds from the power of
control the Constitution grants to the President. No general
statutory nor constitutional authority exists, however, allowing the President
to transfer the functions of one department or agency to another. The reason for this is obvious – the
jurisdiction of a particular department or agency is provided for by law and
this jurisdiction may not be modified, reduced or increased, via a mere executive order except to the
extent that the law allows. Thus, only
the President, based on her constitutionally-provided control powers, can
assume the functions of any of the departments or agencies under the Executive
Department. Even then, the President
cannot transfer these functions to another agency without transgressing the
legislative prerogatives of Congress. This conclusion necessarily impacts on
the validity of the CHED’s issuance of the RIRR and other instruments which
must similarly be invalid since they sprang from an invalid and impermissible
sub-delegation of power.
I
therefore vote to invalidate EO 566 and the issuances arising from this EO.
ARTURO D. BRION
Associate Justice
[1] See: Rubenito, et al. v. Lagata, et al., G.R.
No. 140959,
[2] Far East Bank & Trust Company v. Court
of Appeals, G.R. No. 123569, April 1, 1996, 256 SCRA 15; Antiporda, Jr. v. Sandiganbayan, G.R.
No. 116941, May 31, 2001, 358 SCRA 335.
[3] Rollo, p. 4.
[4] On
Allegations of leakage in two (2) tests – Tests
III and IV – however plagued the licensure examination. This prompted the PRC to constitute a
committee to investigate the reported leakage.
The PRC investigating body found that leakages occurred in Tests III
and V; 20 of the 100 questions in Test III and 90 of the 100 questions in Test
V were found to have been leaked to the examinees by certain nursing review
centers days prior to the scheduled exam.
The investigating body recommended, among others, the filing of criminal
charges against the examiners – BON members Madeja (for Test III) and Dionisio
(for Test V). The National Bureau of
Investigation (NBI) conducted a
parallel investigation; the Senate, on the other hand, conducted a legislative
inquiry on the leakage controversy.
The
PRC approved the report of the investigating body. To address the leakage problem, the PRC
approved Resolution No. 31 (Resolution 31)
of the BON that: (1) invalidated 20 of the 100 questions in Test III, while
ruling that the remaining 80 questions are sufficient to measure the examinees’
competency for the subject covered by Test III; and (2) ordered the
re-computation of the grades in Test V under a statistical treatment to tone
down the upward pull of the leakage. As
a result of the re-computation, the original passing rate of 41.24% rose to
42.42%; the 1,186 previously “borderline cases” became flunkers; while 1,687
examinees who flunked under the original computation became passers as
“borderline cases.”
Various
groups, concerned about the integrity and reputation of the professional
nursing examination, expressed their opposition against the manner the PRC addressed
the leakage and asked the PRC to reconsider Resolution 31. The PRC nevertheless scheduled and started
administering the oaths for the 17,821 purportedly successful examinees; some
were even issued licenses.
To
prevent the PRC from further administering the oaths and issuing professional
licenses to the purported successful examinees, Rene Luis M. Tadle, Earl
Francis R. Sumile, and Michael Angelo S. Brant (all from the University of
Santo Tomas; hereinafter “Tadle, et al.”)
filed on August 16, 2006 with the Court of Appeals (CA) a petition for prohibition (docketed CA-G.R. SP NO.
95709) asking the appellate court to enjoin the implementation of Resolution 31
and the oath-taking of the declared passers.
Tadle, et al. anchored their
petition on the ground that the PRC and the BON reneged on their ministerial
duty under the law to compute the grades of examinees based on the actual
results from each of the five test subjects; that based on the combined
application of Sections 14 and 15 of the Philippine Nursing ACT of 2002, the
PRC and the BON has the duty to compute the scores of the examinees based on
the actual results of the tests for the five areas; the PRC and the BON however
based the ratings of examinees for Test V not on the result of an actual, true,
and honest examination in Test V. To the
petitioners, “the PRC – BON changed the rules of computing the ratings for
passing examinees, in a manner of speaking, after the game has been played.” The importance also of the subject area
covered by Test V was allegedly disregarded when it was given a weight lesser
than the others. As additional ground,
the petitioners drew a distinction between the 2003 bar examination controversy
and the nursing leakage issue.
Tadle,
et al. asked the appellate court to
issue a temporary restraining order (TRO)
and a preliminary injunction. The
appellate court issued on August 18, 2006 a TRO directing the PRC and the BON to CEASE and DESIST from enforcing Resolution
31 and from proceeding with the oath-taking scheduled on August 22, 2006 of
those who purportedly passed the June x x x examinations for nursing licensure.
The
case drew several interventions – both for and against the petition for
prohibition. The Presidential Task Force
on National Licensure Examination (NCLEX) for Nurses in the Philippines (the Task Force) joined the petition and
additionally asked for a writ of certiorari
to: annul Resolution 31; invalidate Tests III and V and conduct a new
examination for these subjects; nullify the declaration of the passing
examinees for lack of basis; and nullify and set aside the oath administered or
caused to be administered by the PRC on supposed passing examinees. Various groups of examinees who alleged to
have honestly passed the exam, on the other hand, filed their respective
motions for intervention to oppose the petition for prohibition.
The
case followed its usual course – the filing of comments, hearings on the
merits, and the filing of the parties’ memoranda. During the pendency of the case, the
President promulgated Executive Order No. 565 (EO 565) which transferred the oversight functions of the Office of
the President over the PRC to the Department of Labor and Employment (DOLE) by attaching the PRC to the DOLE
for general direction and coordination (This was later superseded by Executive
Order No. 565-A defining the extent of the DOLE’s authority over the PRC). At
almost the same time, the President promulgated Executive Order No. 566 (EO 566) – whose constitutionality is now
assailed in the present petition – directing the Commission on Higher Education
(CHED) to regulate the establishment
and operation of review centers and similar entities. Under Section 1 of EO 566, the CHED, in consultation with other
concerned government agencies, was directed to formulate a framework for the
regulation of review centers and similar entities, including but not limited to
the development and institutionalization of policies, standards, and guidelines
for the establishment, operation, and accreditation of review centers and
similar entities; maintenance of a mechanism to monitor the adequacy,
transparency, and propriety of their operations; and reporting mechanisms to
review performance and ethical practice.
Under the EO 566, too, no review center or similar entity shall be
established and/or operate review classes without the favorable expressed
indorsement of the CHED and without the issuance of the necessary permits or
authorizations to conduct review classes.
The
President at almost the same time undertook a total overhaul of the BON’s
membership.
In
the meantime, the NBI concluded its investigation and found, among others, that
the leakage occurred only in Manila and Baguio and that the leakage of the test
questions was perpetrated by the Gapuz, Inress, and Royal Pentagon Review
Centers through the final coaching sessions these centers conducted two days
prior to the scheduled exam.
The
CA rendered its decision in CA-G.R. SP NO. 95709 on
WHEREFORE, the petition is GRANTED.
Declaring Resolution No. 31, Series of 2006 as null and void,
a Writ of Prohibition is hereby issued permanently enjoining the
respondents from implementing said resolution.
Granting further the incidental reliefs required under the premises, the
respondents are hereby directed:
1)
To conduct a selective retaking in Tests III and
V among the 1,687 examinees whose names were merely added to the unaltered list
of 41.24% of successful examinees;
2) To restore the names of the 1,186 successful
examinees and include them again in the list of 41.24% who actually passed the
June 11 and 12, 2006 Nursing Licensure Examination; and
3) To
cause the oath taking and issuance of licenses to all of the 41.24% successful
examinees as herein reconstituted.
This disquisition is without prejudice to
respondents’ and the executive branch’s revoking the licenses issued to
examinees who may eventually be identified as among those who attended the
final coaching sessions at Gapuz, Inress and Pentagon review centers.
SO ORDERED.
The
CA thus annulled Resolution 31 for having been issued with grave abuse of
discretion; to the appellate court, the effect of the leakage was
insignificant so that the resolution should not have been in the first place
issued. The CA at the same time
prohibited the implementation of Resolution 31. It added that the applicable rule on
computation should be the pre-Resolution 31 formulae, and on this basis and as
incidental relief, ordered the PRC to cause the oath-taking and issuance of
licenses to all of the 41.24% successful examinees. It likewise found no basis for a wholesale
retake of Tests III and V of the licensure examination. Finally, the appellate court, taking into
account the findings of the NBI, ruled that the licenses of those who attended
the final coaching sessions at Gapuz, Inress, and Pentagon review centers may
be revoked by the PRC, BON or the executive branch.
On
Tadle,
et al. filed a petition for certiorari
with the Supreme Court assailing: (1) the act of the CA in allegedly “improperly
allowing its ponente to compel the PRC and the BON into letting the supposedly
successful examinees take their oaths and their licenses although the decision
in their favor has not yet become final”; and (2) the CA’s October 13, 2006
decision. The
petition for certiorari, however, was
dismissed by the Court on a technicality.
The Court thereafter denied with finality the Tadle, et al.’s motion for reconsideration of
the dismissal of their SC petition.
On
It
was at this point that the petitioner association of independent review centers
came to us, via the present petition,
to assail the constitutionality of the EO 566 and the RIRR.
Meanwhile,
the conclusion of the legal battle did not write finis to the hurdles the June 2006 nursing board examinees had to
surpass. On February 14, 2007, the
Commission on Graduate of Foreign Nursing Schools (CGFNS) of the United States of America issued a press
release/statement essentially saying that the Philippine nurses sworn in as
licensed nurses in the Philippines following their passing the compromised
licensure exam of June 2006 shall not be eligible for VisaScreen Certificate
(a requirement in order that a Philippine nurse may engage in her profession in
the United States of America). The CGFNS
noted in its statement though that the June 2006 passers may overcome this bar
and qualify for a Visa Screen Certificate by taking the equivalent of
Tests 3 and 5 on a future licensing examination administered by Philippine
regulatory authorities and obtaining a passing score; and, in this connection,
it urged the Philippine authorities to provide an opportunity for re-take of
tests without surrender of license.
The
President reacted by promulgating Executive Order No. 609 (EO 609) on
The
CHED extended the 1-year grace period provided under the RIRR for the existing
review centers’ compliance for six (6) months under CMO 55, Series of 2007,
issued on
[5] An Act Modernizing the Professional
Regulation Commission, Repealing for the Purpose Presidential Decree Number Two
Hundred and Twenty-Three, entitled “Creating the Professional Regulation
Commission, and Prescribing its Powers and Functions,” and for Other Purposes.
[6] See: Tatad
v. Secretary of the Department of Energy, G.R. No. 124360, November 5, 1997, 281 SCRA 330, on the tests
for a valid delegation of legislative powers.
[7] The
PRC acted on the anomalies that allegedly marred the following licensure
examinations for: Physicians (February 1993), Marine Deck Officers (June 2002),
Teachers (August 2004), and Civil Engineers (November 2007).
[8] CONSTITUTION, Article VII, Section 17.
[9] See Ang-Angco v. Castillo, G.R. No. L-17169,
[10] 101 Phil. 328 (1957).
[11]
G.R. No. 131429.
[12]
[13] See Cruz, Philippine
Political Law (2002), p. 91.