DOJ Opinion No. 085, s. 1997

DOJ OPINION NO. 085 , s. 1997 December 5, 1997 Mr. Romeo S. David President/Chief Executive Officer Clark Development Corporation Clark Special Economic Zone Building 2127, C.P. Garcia St., corner E. Quirino St., Clark Field, Pampanga Sir : This has reference to your request for opinion on certain legal issues relating to the decision reached by the Board of Directors of the Clark Development Corporation (CDC), during its May 27, 1997 meeting, regarding the termination of the services of VP Antonio B. Salenga by way of non-confirmation. aisadc You state that on August 9, 1995, you appointed Mr. Salenga as Vice President, Corporate Services Group, on a probationary basis; that his appointment was confirmed by the Board of Directors (BOD) of CDC on the same day; that his appointment carried the proviso that ". . . whenever operational requirements demand or dictate, you may be transferred or reassigned to other department or location"; that after the probationary period of six (6) months, or on February 8, 1996, Mr. Salenga was appointed as Vice President, Job Level/Step 13/12 in the Corporate Services Group and the nature of his appointment became permanent; that on August 14, 1996, Mr. Salenga was relieved of his duties and responsibilities as Vice President, Corporate Services Group, and was assigned to the Office of the President under Position Assignment Authorization dated October 7, 1996; that on the same date Mr. Salenga was given a lateral transfer to the Joint Venture and Special Projects, Office of the President, with the same title of Vice President, Joint Venture and Special Projects; that on November 15, 1996, the BOD called a stockholders' meeting and, meeting as stockholders, called for the submission of the names of Executive Vice President Jaime L. Melendrez, VP Francis C. Elum, VP Salenga, VP Angelino Medina, and VP Cenon S. Cervantes; that in the so-called stockholders' meeting, the BOD confirmed all the appointments of said officers except that of VP Salenga which the BOD held in abeyance; that in the May 1997 meeting, the BOD, meeting in executive session, decided not to confirm the appointment of VP Salenga. cdt You also state that by way of exhausting administrative remedies and as a matter of courtesy, you sought the opinion of the Office of the Government Corporate Counsel (OGCC) on the legal issues stated therein involving the matter subject herein; and that since you have yet to receive the response of the OGCC to your queries, you now deem it proper to seek our opinion on the said legal issues raised before the OGCC. With regret, this Office is constrained to decline to render the opinion requested. It is true that the OGCC is the "principal law office of all government-owned or controlled corporations, their subsidiaries, other corporate offsprings and other government acquired asset corporations" (Section 10, Chapter 3, Title III, Book IV, Administrative Code of 1987; also Section P.D. No. 1415 and Section 1, R.A. No. 3838). However, it is equally true that the officers and employees of CDC are covered by the Labor Code of the Philippines, CDC being a government corporation without original charter but is merely a subsidiary corporation of the BCDA (National Service Corporation vs. National Labor Relations Commission, 168 SCRA 122). Thus, considering that the within request relates to the legality of the termination of the services of Mr. Salenga as Vice President, Joint Venture and Special Services Group, the resolution of which would necessarily involve the interpretation and/or examination of the applicable provisions of the Labor Code, the same should be addressed to the Department of Labor and Employment (DOLE) which has primary jurisdiction over the subject matter. Under existing laws, the interpretation of labor laws, rules and regulations falls within the jurisdiction of the DOLE, it being the agency "charged with the administration and enforcement of [the Labor] Code or any of its parts [and] shall promulgate the necessary implementing rules and regulations (Article 5, The Labor Code of the Philippines; also Section 15 of E.O. No. 126, series of 1987). The Secretary of Justice has, by established precedents, consistently refrained from expressing his views on matters which fall within the primary jurisdiction of another office or agency, unless requested by such office or agency (Secretary of Justice Opinion No. 39, s. 1986; No. 1, s. 1983; No. 123, s. 1980 and No. 194, s. 1976). This rule arises not only from practical considerations but also out of due respect and deference for the competence and expertise of the office having primary jurisdiction to resolve the matter ( Ibid . No. 7, s. 1996). Relevantly, we have had occasion to opine that in the event of conflict in the interpretation of labor laws, rules and regulations between the DOLE and the OGCC, the interpretation of the former should prevail ( Ibid ., No. 68, s. 1992). We believe that said opinion equally applies in this case. Moreover, the request involves justiciable issues considering that it affects the substantive rights of Mr. Salenga. Opinions of the Secretary of Justice are merely advisory in nature, and have no binding effect upon the party/parties whose substantive right/s may be affected by the opinion and who may, in all probability, contest the opinion before the courts. In fact, it appears that Mr. Salenga has already hired a lawyer to defend his cause (Annex "C"). By established policies and precedents, this Office does not render opinion or give legal advice on a matter which is justiciable in nature or which may be the subject of judicial controversy (Secretary of Justice Op. No. 182, s. 1990), No. 36, s. 1984, No. 73, s. 1983, No. 43, s. 1979, No. 128, s. 1977 and No. 92, s. 1971). cdt Finally, to rule on the queries raised herein could be tantamount to reviewing the subject action/decision of the CDC Board of Directors. Unfortunately, however, this Department exercises no revisory authority over said CDC Board. For the same reason, we cannot rule on your request. It is suggested, therefore, that your request be addressed to the DOLE, the government agency which is in the best position to resolve your queries. Very truly yours, (SGD.) TEOFISTO T. GUINGONA, JR. Secretary