Republic of the
Supreme Court
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RE: SMOKING AT THE FIRE EXIT AREA AT
THE BACK OF THE PUBLIC INFORMATION OFFICE |
A.M.
No. 2009-23-SC
Present: PUNO, C.J., CARPIO, CORONA, CARPIO
MORALES,
velasco,
JR., NACHURA, leonardo-de castro, brion, peralta, BERSAMIN, DEL
CASTILLO, ABAD, VILLARAMA, Jr., PEREZ, and MENDOZA,
JJ. Promulgated: February 26, 2010 |
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E S O L U T I O N
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BRION, J.: |
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We
resolve in this Resolution the administrative case involving Atty. Brandon C.
Domingo, Atty. Leo Felix S. Domingo, and Atty. Emiliana Helen R. Ubongen (respondents) for alleged violation of (1) Section 6,[1] in connection with Section 1,[2] of Office Order No. 06-2009 entitled
“Reiterating the Ban on Smoking as Provided for in Administrative Circular No.
09-99 and Reiterated and Clarified in Memorandum Circular No. 01-2008A,” and (2) Civil Service Commission (CSC)
Memorandum Circular No. 17, Series of 2009, entitled “Smoking Prohibition
Based on a 100% Smoke-Free Environment Policy.”[3]
By 1st Indorsement dated
October 29, 2009,[4] Eduardo V. Escala (Chief Judicial Staff
Officer of the Security Division of this Court) forwarded to Atty. Eden T.
Candelaria (Deputy Clerk of Court and Chief Administrative Officer) for her
information and appropriate action, the Incident Report[5] dated
October 29, 2009 of Gregorio Alvarez (Alvarez),
Security Officer II.
Alvarez related that on
In a Memorandum dated
On 28 October
2009, at around noon time, upon inhaling second hand smoke in the PIO coming
from the fire exit, my officemates and I discreetly went to the fire exit, and
upon opening the door, were met with a strong smell of cigarette smoke. I heard people conversing upstairs. I proceeded up a flight of stairs, and
immediately saw outside the 4th floor door, three (3) people
smoking, who were identified later as Brandon
Carlos Domingo, Leo Felix S. Domingo, and Emiliana Belen R. Ubongen. Incidentally, they were in an area surrounded
by stacks and piles of paper documents.
I also called my
office mate, Erika Dy, who immediately showed up at the flight of stairs and
saw the smokers. Moments after, office
mates Dennis Balason and Jay Rempillo also arrived and also saw them.
Later in the
day, the three smokers, accompanied by Atty. Josephine C. Yap, came to our
office for a meeting attended by, [sic]
all three, Brandon Carlos Domingo, Leo Felix S. Domingo, and Emiliana Belen R.
Ubongen, and DCA Jose Midas P. Marquez, Atty. Yap and Erika Dy, and
myself. During the meeting the three
categorically admitted that they were indeed all smoking in the fire exit that
afternoon.
On November 19, 2009, the OAS individually directed the
respondents to submit their respective comments/explanations on why they should
not be subjected to appropriate administrative disciplinary actions and
sanctions for violating the ban on smoking within the Court premises.[8] The respondents collectively filed their
Comment dated
The respondents further alleged that they were not
informed of the particular memorandum or circular they were supposed to have
violated. Nevertheless, they questioned
the validity of the existing regulations on smoking within Court premises. They averred that the salient provisions of
Memorandum Circular No. 01-2008A,[10]
particularly the implementation of smoking cessation programs within the Court
and the designation of smoking areas within the premises, had not yet been
implemented. Similarly, they noted that
Republic Act No. 9211 (otherwise known as “The Tobacco Regulation Act of 2003”)
likewise requires that the appropriate places for cigarette smoking be
designated. Moreover, the respondents
consider an absolute ban on smoking within the Court premises to be
unreasonable.[11]
In the Memorandum[12]
dated
Atty. Candelaria found that the respondents’ acts
constituted a violation of reasonable office rules and regulations—a light
offense under Section 52(C)(3) of Rule IV on Penalties of the Uniform Rules on Administrative
Cases in the Civil Service,[13]
for which the penalty is Reprimand.[14]
Nevertheless, she recommended that a WARNING be issued to the respondents, as
well as a reminder that a repetition of the same or similar acts be dealt with
more strictly in the future. In merely admonishing the respondents instead of
issuing a reprimand, Atty. Candelaria considered that the respondents had never
been charged with any offense prior to this incident.[15]
We agree with Atty. Candelaria’s recommendation that
a WARNING issued to the respondents is sufficient. We
appreciate Atty. Candelaria’s submitted reason that this is the respondents’
first offense, and is in fact the first case in this Court involving smoking. Separately from these reasons, we take into
account compelling considerations that dissuade us from imposing the full
sanctions on the respondents.
The statute that actually penalizes smoking is
Republic Act (R.A.) No. 9211 or the Tobacco Regulation Act of 2003[16]
which, in order to foster a healthful environment, absolutely prohibits smoking
in specified public places[17]
and designates smoking and non-smoking areas in places where the absolute ban
on smoking does not apply.[18] Under this law, the Court is generally
considered a place where smoking is restricted, rather than absolutely
banned. Exceptions to this characterization
are the Court’s elevators and stairwells; the Court’s medical and dental
clinics; and the Court’s cafeteria and other dining areas (including the
Justices’ Lounge), together with their food preparation areas, where an
absolute ban applies. In the areas where
smoking restriction applies, the law requires that the Court designate smoking
and non-smoking areas. Significantly, the
law carries specific penalties for violations, ranging from a low of a P500.00
fine for the first offense, to a high of not more than P10,000.00 fine for
the third offense.[19]
In the present case, the respondents were caught
smoking (as Atty. Candelaria found and we have no reason to dispute this
finding) at the Court’s stairwell – an area subject to an absolute ban on
smoking. Thus, technically, a smoking
violation under R.A. No. 9211 exists.
We note, however, that the respondents were never
held to account for violation of R.A. No. 9211 and, in fact, had raised the
question of under which law or regulation they were being held
accountable. In response, the OAS
pointed to Section 6, in connection with Section 1,
of Office Order No. 06-2009; and Civil
Service Commission (CSC) Memorandum Circular No. 17, series of 2009.[20] Thus,
the respondents never defended themselves against any charged violation of R.A.
No. 9211 and cannot be held liable under this law pursuant to the present
charge against them.
Office Order No. 06-2009, under which the
respondents are charged, covers absolute smoking prohibition areas greater than
those covered by R.A. 921, which include all interior areas of the buildings of
the courts and the areas immediately adjacent to these buildings. The Office Order still allows smoking within
court premises (apparently referring to exterior areas), but such smoking has
to be done in designated places. Sections
2 and 3 of Office Order No. 06-2009 provides for the designation of smoking
areas:
Sec. 2. Smoking Areas.-Court personnel who choose to smoke shall do so in open locations at
reasonable distance (five or more meters) from any building, enclosed area, or
vehicle where smoking is prohibited to ensure that environmental tobacco smoke
does not enter the building, enclosed area, or vehicle through entrances,
windows, ventilation or exhaust systems or any other means.
Sec. 3. Designation of smoking areas. – (a) In the Supreme Court, Court
of Appeals, Sandiganbayan, and Court of Tax Appeals, their respective Chief
Administrative Officers shall designate the smoking areas in their compounds.
Compliance with the Office Order is enforced under its Section 6 on
Administrative Sanction.[21]
Implicit, to our mind, in these provisions is that
appropriate smoking areas should be designated to give full effect to the
Office Order. The smokers within the
courts must know not only where they cannot smoke, but also where they can
legitimately smoke.
Unfortunately, no designation of the smoking areas was
immediately made. In fact, a
clarificatory Memorandum dated October 6, 2009 states that “smoking is now strictly prohibited inside the Supreme Court’s premises,”
since there are no open areas that are five or more meters away from any
building, enclosed area or vehicle where smoking is absolutely prohibited.
After the smoking incident involving the respondents
on October 27, 2009, the Court clarified the interpretation of the issuances on
smoking to reflect the interpretation the Court believes to be correct. On
December 15, 2009, the Court En Banc
promulgated the Resolution directing the OAS to recommend smoking areas within
the Court pursuant to Sections 2 and 3 of Memorandum Circular No. 01-2008A.[22] In compliance with this December 15, 2009
Resolution, the OAS addressed a Memorandum to the Chief Justice recommending
two areas in the Court that may be designated as smoking areas: (1) a portion
of the Taft side parking area in the Old Compound; and (2) a space between the
DOJ building and the front exit gate in the New Compound. In
effect, the Court invalidated the October 6, 2009 Memorandum declaring a total
smoking prohibition within court premises, but it was not until February 9,
2010 that the matter was clarified when the Court En Banc approved the OAS Memorandum to the Chief Justice on the
designated smoking areas.
To be sure, the stairwell where the respondents
smoked is considered a completely banned area under the Office Order and does
not need the issuance of any clarificatory smoking area designation. The lack of designation, however, raises
questions about the status of the Office Order and the issuances it seeks to
implement (specifically, Administrative Circular No. 09-99, Memorandum Circular
No. 01-2008A, as well as the related Civil Service Memorandum Circular No. 17,
Series of 2009). One of the questions is
whether there can be a valid partial enforcement of the Office Order.
Effectively, partial enforcement upholds that part
of the Office Order that prohibits smoking in certain areas, but nullifies
equally critical parts of the rule that clearly allow smoking in designated
areas. Stated differently, partial enforcement gives effect to the part of the
Office Order absolutely prohibiting smoking in certain areas, without implementing
the parts that call for the designation of smoking areas. An arguable objection to this manner of implementation
is the badge of inequity that it carries, as it places a greater burden upon smokers
than that which the Office Order intended; without any designated smoking area,
they are always at risk of running afoul of the Office Order.
When the
interpretation of a statute or a rule according to the exact and literal import
of its words would contravene the clear purposes of the law (in the case of the
Office Order, to safeguard health and environmental concerns, while respecting
the rights of the individual), such interpretation should be disregarded in
favor of a construction of the law made according to its spirit and reason.[23] A law’s raison
d’etre must be ascertained from a consideration of the rule as a whole, not
of an isolated part of a particular provision alone. A word or phrase taken in isolation from its
context might easily convey a meaning quite different from the one actually
intended.[24]
Another point to consider is the reality that the
Office Order imposes an administrative sanction on violating court officials
and employees. Thus, strictly speaking, the Office Order is a penal
measure because of the punishment it imposes.
The penal provisions of a law or regulation are to be construed strictly
– a rule of construction that emphatically forbids any attempt to hold that
when the commission of an act on certain specific occasions is penalized, it
should be penalized on all other occasions.[25] It is beyond the jurisdiction of the courts
to increase the restrictions provided by law.[26] When Section 6 of Office Order No. 06-2009
sets out to penalize only the act of smoking outside the designated smoking
areas, but ends up penalizing the act in all the areas within the Court because
no proper smoking area has been designated, the rule is thereby expanded beyond
its intended parameters.
The rule, being penal, must also be construed with
such strictness as to carefully safeguard the rights of the respondents and at
the same time preserve its obvious intention.
If the language is plain, it will be construed as it is read, with the
words of the rule given their full meaning; if ambiguous, the court will lean
more strongly in favor of the respondents than it would if the statute were
remedial.[27] The strict construction of penal statutes
against the state and their liberal construction in favor of an accused,
defendant, or respondent are not intended to enable a guilty person to escape
punishment through a technicality, but to provide a precise definition of
forbidden acts.[28]
It must likewise be considered, still with respect
to the penal nature of the Office Order, that not only smoking violators but
even the Chief of our OAS may have technically been in violation of the Office
Order when she failed to comply with the duty to designate the smoking areas
within Court premises.[29] As worded, Section 3 of the Office Order
imposes this duty on the Chief Administrative Officer. Thus, the Office Order
casts a net wider than that which caught the respondents. In the absence of any
Court action for the omission under Section 3, so also should we not act at
this point on other violations of our rule.
An aspect obviously absent from this discussion is
CSC Memorandum Circular No. 17, Series of 2009, that was also allegedly
violated. The absence is intentional to
avoid repetition, as this Memorandum is no different in its terms and effects
from Office Order No. 06-2009; thus, what applies to the latter – with due
adjustments owing to circumstances peculiar to the development of Office Order
No. 06-2009 within the Court – similarly applies to the former.
Under the circumstances, in addition to those pointed
out by Atty. Eden Candelaria and out of considerations of fairness that the
Court should exemplify, we believe and so hold that we should not impose on the
respondents the strict sanction the Office Order carries. The health and safety
concerns that our smoking policy embodies, however, should not be lost on the
respondents and on everyone within the Court, smokers and non-smokers
alike. Hence, we have to give the respondents
the firm warning that the chief enforcer of the Office Order – the OAS, through
Atty. Eden Candelaria – recommended, while at the same time also warning
everyone that this initial lenient consideration is not apt to be repeated in
future violations now that our smoke-free policy is complete.
WHEREFORE, in view of the foregoing, Atty.
Brandon C. Domingo, Atty. Leo Felix S. Domingo, and Atty. Emiliana Helen R.
Ubongen are firmly WARNED and PUT ON NOTICE that a repetition of any
prohibited smoking under the law and against our internal Court policies shall be
dealt with more severely.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
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REYNATO
S. PUNO Chief Justice |
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ANTONIO
T. CARPIO Associate Justice CONCHITA CARPIO MORALES Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO
C. DEL CASTILLO Associate Justice MARTIN
S. VILLARAMA, JR. Associate Justice |
RENATO C. CORONA Associate Justice PRESBITERO J. VELASCO, JR. Associate
Justice TERESITA J. LEONARDO-DE CASTRO Associate
Justice LUCAS P. BERSAMIN Associate Justice ROBERTO A. ABAD
Associate Justice JOSE
PORTUGAL PEREZ Associate Justice |
JOSE CATRAL MENDOZA
Associate Justice
[1] Section
6 of Office Order No.06-2009 reads:
Sec. 6. Administrative sanction.
Non-compliance by court officials and employees with the provisions of
this Memorandum Circular restricting smoking in prohibited smoking areas shall
be subject to the appropriate administrative disciplinary action and sanction.
[2] Section 1 of Office Order No. 06-2009 states that:
Sec. 1. Prohibited smoking areas. Smoking will be prohibited absolutely in the following areas:
a. All interior areas (including conference rooms, utility rooms, comfort rooms, cafeterias, elevators, fire exit staircases and other stairwells) of the buildings mentioned in the preceding paragraph;
b. All areas immediately adjacent to the said buildings; and
c. All garage/parking areas within the compound of such buildings and all motor vehicles parked therein.
[3] Civil Service Commission (CSC) Memorandum Circular
No. 17, series of 2009, provides that:
x x x x
2. Smoking Prohibition. Smoking shall be prohibited in areas anywhere in or on the government premises, buildings, and grounds, except for open spaces designated as “smoking area,” as herein defined.
[4] Rollo, p. 24.
[5] Id., at 25.
[6] Id., at 23.
[7] Id., at 19-20.
[8] Id., at 16-18.
[9] Id., at 6-14.
[10]
Memorandum Circular No. 01-2008A, entitled “Enjoining All Officials and
Employees of the Judiciary to Strictly Observe the Prohibition Against Smoking
in the Buildings of the Supreme Court, Court of Appeals, Sandiganbayan, Court
of Tax Appeals and in All Halls of Justice,” was issued by Chief Justice
Reynato Puno on
[11] Rollo, pp.12-13.
[12] Id., at 1-4.
[13]
Resolution No. 99-1936, otherwise known as the “Uniform Rules on Administrative
Cases in the Civil Service,” issued by the Civil Service Commission on
[14] Section 53 (C) (3) of Uniform Rules on Administrative Cases in the Civil Service reads:
C. The following are Light Offenses with corresponding penalties:
x x x x
3. Violation of reasonable office rules and regulations:
1st Offense – Reprimand
2nd Offense – Suspension 1-30 days
3rd Offense - Dismissal
[15] Rollo, p. 4.
[16] Effective date – June 28, 2003.
[17] Section 5, R.A. No. 9211. Smoking Ban in Public
Places. — Smoking shall be absolutely prohibited in the following public
places:
a. Centers of youth activity such as playschools, preparatory schools,
elementary schools, high schools, colleges and universities, youth hostels and
recreational facilities for persons under eighteen (18) years old;
b. Elevators and stairwells;
c. Locations in which fire hazards are present, including gas stations
and storage areas for flammable liquids, gas, explosives or combustible
materials;
d. Within the buildings and premises of public and private hospitals,
medical, dental, and optical clinics, health centers, nursing homes,
dispensaries and laboratories;
e. Public conveyances and public facilities including airport and ship
terminals and train and bus stations, restaurants and conference halls, except
for separate smoking areas; and
f. Food
preparation areas.
[18] Section 6, R.A.
No. 9211. Designated
Smoking and Non-smoking Areas. — In all enclosed places that are open to the
general public, private workplaces and other places not covered under the
preceding section, where smoking may expose a person other than the smoker to
tobacco smoke, the owner, proprietor, operator, possessor, manager or
administrator of such places shall establish smoking and non-smoking areas.
Such areas may include a designated smoking area within the building, which may
be in an open space or separate area with proper ventilation, but shall not be
located within the same room that has been designated as a non-smoking
area.
All designated smoking areas shall have at least one (1) legible and visible sign posted, namely "SMOKING AREA" for the information and guidance of all concerned. In addition, the sign or notice posted shall include a warning about the health effects of direct or secondhand exposure to tobacco smoke. Non-Smoking areas shall likewise have at least one (1) legible and visible sign, namely: "NON-SMOKING AREA" or "NO SMOKING."
[19] R.A. No. 9211, Section 32(a).
[20] Supra
note 3.
[21] Supra note 1.
[22] The Court issued this Resolution pursuant to a Letter-Petition dated November 5, 2009, signed by Court employees seeking the recall of the October 6, 2009 Memorandum strictly prohibiting smoking within the Court premises.
[23] Lopez & Sons, Inc. v. Court of Tax Appeals, 100 Phil 850, 856 (1957).
[24] People v. Judge Purisima, 176 Phil 186, 204 (1978).
[25]
[26] Go
Chioco v.
[27] United
v. Go
[28] People v. Judge Purisima, 176 Phil 186, 208 (1978).
[29] See: Section 3(a), Office Order No. 06-2009.