In a letter to the Judicial and Bar Council (JBC), the Dusit Nikko Chapter of the APL- and IUF-affiliated National Union of Workers in Hotel, Restaurant and Allied Industries (NUWHRAIN) vehemently opposed the inclusion of Associate Justice Conchita Carpio Morales in the list of candidates for the position of Ombudsman.
The group’s intractable opposition to her nomination as Ombudsman is based on the palpable and consistent anomalies with regard to the case of the 92DusitThani Hotel Workers, who are now seeking justice against the decision of the Supreme Court Second Division on G.R. No. 163942 dated November 11, 2008 or commonly known as “The Dusit Case”.
While Justice Presbitero Velasco was the ponente, Morales was among the five (5) Associate Justices who rendered the decision on the abovementioned case against the 92 former Dusit Hotel workers. The decisionof the 2nd Division, has in fact turned topsy-turvy the customary concepts of a strike, which – as any new union member who had undergone a basic labor seminar knows and as any law student who attended labor law class knows – is very much different from a picket. The Velasco ruling is clearly a form of “judicial legislation,” because the SC in effect, amended the statutory definition of “strike” when it deemed the shaving of one’s hair to amount to an “illegal strike”!
More than 20 labor federations and unions intervened in the case and repeatedly filed motions for reconsiderations because of the implications of this sordid decision of the Second Division. It is, in fact, expressly stipulated in Article VIII, Section 4 (3) of the 1987 Constitution, which says that when there’s a doctrinal or constitutional issues involved, it must be reviewed or resolved by the Supreme Court en banc.
The ILO Committee on Freedom of Association wherein the DusitThani Hotel case was one of the 8 cases investigated by the ILO High Level Mission in September 2009, in its 358th report dated November 2010, found that the Philippine Government violated ILO Conventions 87 and 98, to wit:
“862. The Committee considers that…generally, a strike is a temporary work stoppage (slowdown) willfully effected by one or more groups of workers. In the present case, while shaving their heads, the employees had not stopped working. The Committee considers that equating the mere expression of discontent, peacefully and lawfully exercised, with a strike per se results in a violation of the freedom of association and expression.”
Justice Carpio-Morales and the rest of the 2nd Division refused to rule on that fundamental issue, even as the same was brought to her attention many times-at the risk of the lawyers being held in contempt.
She approved the February 9, 2009 Resolution denying the Motion for Reconsideration even though the Second Division was not validly constituted for lack of one member. Associate Justice Ruben Reyes retired on January 2, 2009 and his replacement had not been designated as of February 9, 2009.
The Minute Resolution dated February 9, 2009 included Associate Justice Ruben Reyes as one of the justices who decided on the Motion for Reconsideration even if he retired a month earlier on January 02, 2009. Division Clerk of Court Ludichi Yasay-Nunag later admitted that Justice Ruben Reyes did not participate in the approval of the Resolution as the latter already retired. There is no doubt then that said Resolution is null and void because there was no Second Division to speak of. The Constitution requires the Supreme Court to sit in a Division of five.
Despite repeated Motion for Reconsideration and raised in issue the validity of the February 9, 2009 Resolution for lack of a fifth member, again just like the earlier constitutional issue, the Second Division REFUSED TO DECIDE on the issue.
Her participation in the assailed resolution casts a shadow of doubt on Associate Justice ConchitaCarpio Morales integrity and competence which the position of the Ombudsman requires and demands! said Larry Javier the Vice President of NUWHRAIN-DHNC.
Javier further stated she had countless opportunities to address this issue. Apparently, she saw no reason to address a fundamental constitutional issue, even one which destroyed the livelihoods and throw away the years of service by ordinary workers and one which threatens that of many workers other than those from DusitThani Hotel.
A Supreme Court Justice who cannot understand that four (4) is less than five (5) should not be allowed to become an Ombudsman.
A Supreme Court Justice who refused to recognize the fact that January 2, 2009 actually occurred before February 9, 2009 should not be allowed to become an Ombudsman!