Petition against POC Privatization - Cervantes v. Aquino

8/15/2019 Petition against POC Privatization - Cervantes v. Aquino

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Republic of the PhilippinesSUPREME COURT OF THE PHILIPPINES

Manila

Daisy Joy Rojallo Cervantes, Basilio DaysonManjares, Jay-R Medinilla Ladub, ArmandoMamarin De Guzman, indigent patients at thePHILIPPINE ORTHOPEDIC CENTER ; SeanHerbert Velchez RN, Dante A. Perez, RicardoAntonio, Minnelie I. Cagara, RN, and ValentinAbalos Arciaga, of the NATIONAL

ORTHOPEDIC HOSPITAL WORKERS’ UNION - ALLIANCE OF HEALTH WORKERS (NOHWU- AHW); Fresco Bascara Yapendon, MD; AmeliaMangay Maglacas, RN; Jossel I. Ebesate, RN,

ALLIANCE OF HEALTH WORKERS; Cecilia M.Laurente, RN, of the NETWORK OPPOSED TOPRIVATIZATION OF PUBLIC HOSPITALS ANDHEALTH SERVICES (NOP); Eleanor A. Jara,MD, COUNCIL FOR HEALTH ANDDEVELOPMENT; Darby E. Santiago, MD,HEALTH ALLIANCE FOR DEMOCRACY; Edelina P. dela Paz, MD, PEOPLE‘S HEALTHMOVEMENT; Joseph M. Carabeo, MD,COMMUNITY MEDICINE PRACTITIONERS

AND ADVOCATES ASSOCIATION(COMPASS); Reginald Pamugas, MD, HEALTH

ACTION FOR HUMAN RIGHTS (HAHR);Eleanor M. Nolasco, RN, NARS NG BAYANCOMMUNITY HEALTH NURSES’

ASSOCIATION ; Saturnino C. Ocampo,MAKABAYAN; Joan May E. Salvador ,GABRIELA ALLIANCE OF WOMEN ; GloriaArellano, KALIPUNAN NG DAMAYAN NGMAHIHIRAP (KADAMAY); Elmer Labog,KILUSANG MAYO UNO; BAYAN MUNA Rep.Neri Javier Colmenares and Rep. IsaganiCarlos Zarate; and KABATAAN PARTYLIST Rep. Terry Ridon,

Petitioners,

– versus – For: Certiorari andProhibition withApplication for theIssuance of a Writ of


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Preliminary Injunctionand/or TemporaryRestraining Order

H.E. Benigno Simeon Aquino III,CHAIRPERSON of the NATIONAL ECONOMICDEVELOPMENT AUTHORITY ; Hon. Enrique T.Ona, SECRETARY OF DEPARTMENT OFHEALTH ; Hon. Teodoro J. Herbosa,UNDERSECRETARY, DOH HEAD, MPOC-PBAC ; Cosette C. Canilao, EXECUTIVE

DIRECTOR OF THE PUBLIC PRIVATEPARTNERSHIP CENTER ; Jan Irish P. Villegas,PROJECT MANAGER, MODERNIZATION OFTHE PHILIPPINE ORTHOPEDIC CENTER ;Arsenio M. Balisacan, DIRECTOR GENERAL

AND VICE CHAIRMAN OF THE NATIONALECONOMIC DEVELOPMENT AUTHORITY ;Cesar V. Purisima, CHAIR OF THE NEDA-INVESTMENT COORDINATING COMMITTEE(ICC); and CONSORTIUM OF MEGAWIDECONSTRUCTION CORPORATION ANDWORLD CITI MEDICAL CENTER , representedby Manuel Louie B. Ferrer,

Respondents .x----------------------------------------------------------------x

PETITIONfor

CERTIORARI and PROHIBITION

with APPLlCATION FOR THE ISSUANCE OF A

WRIT OF PRELIMINARY INJUNCTION AND/OR

TEMPORARY RESTRAINING ORDER


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PREFATORY

If one thinks that health can be exchanged for wealth,this Petition does not deserve the courts ’ preciousattention. But if one believes that wealth must besubordinated to health, especially of the dying destitutes,those who have never seen hospitals or doctors or nursesin their lives, in whose lives executive check-up is only forthe rich and famous, where blood letting is for the nextemployment as security guards, masons, janitor, waiters,waitresses, then this Petition and what it is fighting fordeserve more days in this Court. These people will not

just lie there and die there.

Petitioners, by counsel, respectfully aver:

The State‟s responsibility is to provide and ensure a basicsocial service such as health based on the people‟sconstitutional right to health and to free medical care andaccess to affordable health services. Such duty should not be

relinquished to a private entity through privatization orcommercialization of a government hospital to the prejudice ofthe poor and underprivileged.

NATURE OF THE PETITION

1. This is an original action for CERTIORARI andPROHIBITION under Rule 65 of the Rules of Court with anapplication for the issuance of a Writ of Preliminary Injunction and/orTemporary Restraining Order (TRO) seeking to:

ANNUL and SET ASIDE the Decision of the PublicRespondents to privatize or commercialize the Philippine OrthopedicCenter (hereinafter POC);

ANNUL and SET ASIDE the award by the Public Respondentsof the so-called Modernization of the Philippine Orthopedic Center to

Private Respondents Megawide Construction Corp. (Megawide) andWorld Citi, Inc; and to


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PROHIBIT and ORDER the Public Respondents to desist fromfurther proceeding in the building, operation and transfer of thePhilippine Orthopedic Center to said Private Respondents.

2. Petitioners availed of this remedy because the PublicRespondents committed grave abuse of discretion amounting to lackor excess of jurisdiction in the commission of the said acts sought tobe prohibited and enjoined. Moreover, under the circumstancesobtaining, Petitioners cannot avail of the remedy of appeal and haveno other plain, speedy, and adequate remedy in the ordinary courseof law, which will promptly relieve them from the injurious effects ofthe acts of the Public and Private Respondents.

3. This is both a suit by those directly affected by the actions ofRespondents, as well as a citizens‘ and taxpayers‘ suit. Morefundamentally, Petitioners posit this is a public interest suit, where thepeople are considered the real parties-in-interest.

4. This Petition raises novel questions because it involves atfirst impression the fundamental question of whether the State‘sresponsibility to provide and ensure a basic social service such ashealth could be relinquished to a private entity through privatization orcommercialization of a government hospital to the prejudice of thepoor and underprivileged.

5. Differently stated, can the people‘s basic constitutional rightto health and equitable access to free medical care and affordablehealth services be prejudiced by the State‘s abandonment of its dutythrough privatization and commercialization of a government hospitalthat mainly caters to the poor and underprivileged as a public servicein exchange for profits by a private entity under the guise of―modernization‖?

TIMELINESS OF THE PETITION

6. This Petition is being filed on time as the subject ―Notice of Award and Post- Award Requirements‖1 for the so-called

1 An electronic copy downloaded from the Public-Private Partnership

Center (PPP) website is hereto attached asAnnex “A”

and made anintegral part hereof. Available at http://ppp.gov.ph/wp-content/uploads/2013/12/MPOC NOA-06Dec2013.pdf last accessed January 30, 2014.

The Public Respondents, through the Office of the Secretary of theDepartment of Health, have merely referred Petitioners to this website

http://ppp.gov.ph/wp-content/uploads/2013/12/MPOC%20NOA-06Dec2013.pdfhttp://ppp.gov.ph/wp-content/uploads/2013/12/MPOC%20NOA-06Dec2013.pdfhttp://ppp.gov.ph/wp-content/uploads/2013/12/MPOC%20NOA-06Dec2013.pdfhttp://ppp.gov.ph/wp-content/uploads/2013/12/MPOC%20NOA-06Dec2013.pdf


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Modernization of the Philippine Orthopedic Center (MPOC) Projectwas issued on 6 December 2013 and thus within the sixty (60) daysperiod mandated by Rule 65 of the Rules of Court.

THE PARTIES

7. The Petitioners are Filipino citizens, of legal age, residentsof the Philippines, and may be served with legal processes of thisHonorable Court through undersigned counsel at 3rd Floor, ErythrinaBuilding, No. 1 Maaralin cor. Matatag Streets, Central District,Diliman, Quezon City:

a. Daisy Joy Rojallo Cervantes, 37 years old, an indigentpatient at the POC, diagnosed with ―old spinal cord injuryincluding sacrolumbar T12, second degree compression,fracture L1 vertebra secondary to fall, pressure sore sacralarea‖ and presently confined at the Spinal Ward sinceNovember 22, 2013 and continues to be confined thereat,with address at Phase II, Dahlia st., Alido Bulihan, Malolos

City, Bulacan;

b. Basilio Dayson Manjares, 57 years old, an indigentpatient at the POC, diagnosed with ―old spinal cord injury,complete sensory level T12 secondary to fracturedislocation, L1 L2 secondary to motorcycle vehicularaccident‖ and first confined on December 15, 2006 andpresently confined at the Spinal Ward since August 12, 2013and continues to be confined thereat, with address at 28Malino Homes, 2 Salitan Camarines, Cavite City;

c. Jay-R Medinilla Ladub, 31 years old, an indigent patientat the POC, diagnosed with ―spinal cord injury, complete,S2, C6 secondary to crushing injury‖ and presently confinedat the Spinal Ward since November 15, 2012 and continuesto be confined thereat, with address at Purok 4, BagongBayan, Jose Panganiban, Camarines Norte;

d. Armando Mamarin De Guzman, 52 years old, an indigent

patient at the POC, diagnosed with ―grade IV pressure sore

and have repeatedly refused to issue a certified true copy of the same upto the time of filing of this Petition.


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left inferior gluteal area‖ and presently confined at the SpinalWard since January 17, 2013 and continues to be confinedthereat, with address at Paraiso St., Barangay San Agustin,Novaliches, Quezon City;

e. Sean Herbert Velchez RN, is a staff nurse at the POC forfive (5) years since March 2008 up to the present andPresident of the National Orthopedic Hospital Workers‟Union-Alliance of Health Workers (hereinafter NOHWU-AHW) with address at c/o POC, Ma. Clara St. cor. BanaweSt., Quezon City;

f. Dante A. Perez, is a physical therapist at the POC for

sixteen (16) years up to the present and Vice-President ofNOHWU-AHW with address at 1915-C Maria Orosa, Malate,Manila;

g. Ricardo Antonio, is an employee at the POC DietaryDepartment for almost twenty-six (26) years since August1988 and PRO of NOHWU-AHW, with address at c/o DietaryDept., POC, Ma. Clara St. cor. Banawe St., Quezon City;

h. Minnelie I. Cagara, RN, a nurse at the POC for thirteen(13) years since March 2001 up to the present and memberof NOHWU-AHW, with address at c/o POC, Ma. Clara St.cor. Banawe St., Quezon City;

i. Valentin Abalos Arciaga, a nursing aide at the POC forthirteen (13) years since October 2001 up to the presentand member of NOHWU-AHW, with address at c/o POC,Ma. Clara St. cor. Banawe St., Quezon City;

j. Fresco Bascara Yapendon, MD, immediate past Presidentof Philippine Association of Medical Specialists (PAMS),with address at c/o Room 403 Jaime Cardinal Sin Building,Pedro Gil, Paco, Manila;

k. Amelia Mangay Maglacas, RN, PhD., former nurse of theWorld Health Organization (WHO), with address at c/o No.8 Hyacinth Street, Roxas District, Quezon City;

l. Jossel I. Ebesate, RN, President of Alliance of HealthWorkers (AHW) with address at Room 603 Web-JetBuilding, 64 Quezon Avenue cor. BMA Avenue, QuezonCity;


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m. Cecilia M. Laurente, RN, PhD. former dean of theUniversity of the Philippines (UP) College of Nursing,convenor of the Network Opposed to Privatization ofPublic Hospitals and Health Services (NOP) with address at Room 307 Casa Rafael, 1223 Quezon Avenue, QuezonCity;

n. Eleanor A. Jara, MD, Executive Director of the Council forHealth and Development (CHD), with address at No. 8Mines Street, Barangay Vasra, Quezon City;

o. Darby E. Santiago, MD, Chairperson of the HealthAlliance for Democracy (HEAD), with address at Room

307 Casa Rafael, 1223 Quezon Avenue, Quezon City;

p. Edelina P. Dela Paz, MD, Country Coordinator of People‟sHealth Movement-Philippines, with address at UP-Manila,Social Medicine Unit, College of Medicine;

q. Joseph M. Carabeo, MD, Chairperson of the CommunityMedicine Practitioners and Advocates Association(COMPASS), with address at Room 403 Jaime Cardinal SinBuilding, Pedro Gil, Paco, Manila;

r. Reginald Pamugas, MD, Secretary-General of HealthAction for Human Rights with address at Room 307 CasaRafael, 1223 Quezon Avenue, Quezon City;

s. Eleanor M. Nolasco, RN, founding President of Nars ngBayan Community Health Nurses‟ Association, withaddress at No. 8 Hyacinth Street, Roxas District, QuezonCity;

t. Saturnino C. Ocampo, President of MAKABAYAN, withaddress at No. 20 Marunong Street, Barangay Central,Quezon City;

u. Joan May E. Salvador , Secretary-General of Gabriela Alliance of Women with office address at No. 35 ScoutDelgado, Quezon City;

v. Gloria Arellano, Chairperson of Kalipunan ng Damayanng Mahihirap (KADAMAY), with address at No. 12-AKasiyahan Street, Don Antonio Heights, Barangay HolySpirit, Quezon City;


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w. Elmer Labog, Chairperson of Kilusang Mayo Uno (KMU),with address at c/o Balay Obrero Foundation, No. 63 NarraStreet, Barangay Claro, Project 3, Quezon City;

x. Hon. Neri Javier Colmenares, Bayan Muna PartylistRepresentative and concurrently President of the NationalUnion of Peoples‘ Lawyers (NUPL), with office address atHouse of Representatives, Batasang Pambansa Complex,Quezon City;

y. Hon. Carlos Isagani Zarate, Bayan Muna PartylistRepresentative and concurrently Adviser of the NUPL, withoffice address at House of Representatives, Batasang

Pambansa Complex, Quezon City; and

z. Hon. James Mark Terry Ridon, Kabataan PartylistRepresentative and concurrently member of the NUPL, withoffice address at House of Representatives, BatasangPambansa Complex, Quezon City;

8. The Respondents are Filipino citizens, of legal age,residents of the Philippines:

a. Benigno Simeon Aquino III, in his capacity as Chairmanof the National Economic Development Authority(hereinafter NEDA) and concurrently President of theRepublic of the Philippines, may be served with legalprocesses at Malacañang Palace, Manila;

b. Enrique T. Ona, MD., in his capacity as Secretary of theDepartment of Health (hereinafter DOH), may be servedwith legal processes at DOH, San Lazaro Compound, Rizal

Avenue, Manila;

c. Teodoro J. Herbosa, MD., in his capacity as Undersecretary of the DOH and Chairman of theModernization of the Philippine Orthopedic Center -Prequalification, Bids and Awards Committee (hereinafter MPOC-PBAC), may be served with legalprocesses at DOH, San Lazaro Compound, Rizal Avenue,Manila;

d. Cosette C. Canilao, in her capacity as Executive Directorof the Public Private Partnership Center (PPC), may beserved with legal processes at NEDA sa QC, EDSA,Diliman, Quezon City 1103;


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e. Jan Irish P. Villegas, in her capacity as Project Manager,Modernization of the Philippine Orthopedic Center, maybe served with legal processes at NEDA sa QC, EDSA,Diliman, Quezon City 1103;

f. Arsenio M. Balisacan, in his capacity as Director Generaland Vice Chairman of the National EconomicDevelopment Authority (NEDA), may be served with legalprocesses at St. Josemaria Escriva Drive, Ortigas Center,Pasig City 1605;

g. Cesar V. Purisima, in his capacity as Chairman of theNEDA-Investment Coordinating Committee (ICC), and

concurrently Finance Secretary, may be served with legalprocesses c/o St. Josemaria Escriva Drive, Ortigas Center,Pasig City 1605; and

h. Consortium of Megawide Construction Corp. (Megawide)and World Citi Medical Center, represented by ManuelLouie B. Ferrer, may be served with legal processes at No.20 N. Domingo Street, Barangay Valencia, Quezon City.

JURISDICTIONAL AVERMENTS

9. Petitioners have clear legal standing to bring this Petition asthey will suffer, as current patients and employees of the PhilippineOrthopedic Center (POC), actually or imminently, direct andsubstantial injury from the impending privatization of the said hospital.The transfer of operational and management affairs to a private entityhas serious and adverse effects on service fees and rates imposed

upon patients current and future, and on terms, conditions, andrelations with POC employees current and future.

10. All petitioners, particularly those in the health professionwho are directly involved in providing health services, invoke actualand direct interest i.e. ―a personal and substantial interest in the casesuch that he has sustained, or will susta in direct injury as a result‖2 and as taxpayers3 and citizens in the rendition of health services by

2

See for instance, People v. Vera (G.R. No. L-45685, November 16,1937).

3 Tatad v. Garcia (G.R. No. 114222, April 6, 1995) holds: “ The prevailingdoctrines in taxpayer's suits are to allow taxpayers to question contractsentered into by the national government or government-owned orcontrolled corporations allegedly in contravention of the law (Kilosbayan,


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the State particularly with respect to the ownership, operations andmaintenance of a public or government hospital.4

10.1. The privatization of the POC involves public fundsand affects public sovereign, not simply proprietary, functions.Petitioners have filed this petition on their own behalf and onbehalf of the public who are and will be directly affected by theprivatization of the country‘s premier orthopedic hospital.

10.2. As taxpayers they have a clear interest in thedisbursement of public funds not only with respect to the futurepublic lot allocated to the envisioned ―modernized‖ POC, butalso the public expenditures for the whole process of bidding

and contracting. In addition, the government will extendoperations and management support or subsidy to the winningbidder which would involve public funds.5

11. Moreover, in public interest cases such as the instantPetition, standing should be reckoned, not in terms of "injury in fact"but in terms of "public right‖6. "Public interest" has since beendefined as "public interest in the rule of law‖7. Petitioners thencesubmit to the sound discretion of the Court; as in the final analysis, itis for the courts to determine on a case to case basis whether thematter at issue is of interest or importance, as it relates to or affectsthe public.8 But where there is a public suit, which seeks to enforce

Inc. v. Guingona, 232 SCRA 110 [1994]) and to disallow the same whenonly municipal contracts are involved (Bugnay Construction and

Development Corporation v. Laron, 176 SCRA. 240 [1989]).”

4 Tolentino v. Secretary of Finance (G.R. No. 115455, August 25,1994) holds: “We accept that this Court does not only adjudicate privatecases; that public actions by "non-Hohfeldian" or ideological plaintiffs arenow cognizable provided they meet the standing requirement of the

Constitution; that under Art. VIII, Sec. 1, par. 2. the Court has a "specialfunction" of vindicating constitutional rights.”

5 MPOC Bid Bulletin No. 12, page 2, citing Section 23 of the draft BOTAgreement on DOH O&M CASH SUPPORT or PROJECT PROPONENT

PREMIUM PAYMENT issued April 3, 2013. Available at http://ppp.gov.ph/wp-content/uploads/2013/04/MPOC_BB12_04032013.pdf ., lastaccessed January 30, 2014.

6

Severino v. Governor-General, GR No. 6250, August 3, 1910.

7 Kilosbayan v. Guingona, GR No. 113375, May 5, 1994.

8 Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29,1987.

http://ppp.gov.ph/wp-content/uploads/2013/04/MPOC_BB12_04032013.pdfhttp://ppp.gov.ph/wp-content/uploads/2013/04/MPOC_BB12_04032013.pdfhttp://ppp.gov.ph/wp-content/uploads/2013/04/MPOC_BB12_04032013.pdfhttp://ppp.gov.ph/wp-content/uploads/2013/04/MPOC_BB12_04032013.pdfhttp://ppp.gov.ph/wp-content/uploads/2013/04/MPOC_BB12_04032013.pdf


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public rights particularly one with far-reaching implications such asthis, the people are regarded as the real party in interest .9

12. Additionally, Petitioner-legislators seek recourse from thecourts because an act of the Executive – commercializing the Stateduty to provide accessible and affordable health care contrary to theConstitution – injures the institution of Congress and causes aderivative but nonetheless substantial injury. It has been recognizedthat a member of the Legislature has the requisite personality to bringa suit where a constitutional issue is raised.10

13. Notably too, Petitioners do not have any practical availableadministrative remedies before filing the instant Petition. On top of

several dialogues with Public Respondents Department of HealthSecretary Enrique Ona and Undersecretary Teodoro Herbosa overtime, they have undertaken all available steps to question thecomplained acts, including:

a. In late 2012, Petitioners through the Network Opposedto the Privatization of Public Hospitals and Health Services(hereinafter NOP) made an Open Letter to the PublicRespondent President Benigno S. Aquino III to Stop thePrivatization of Public Health Care and Services11. The NOPraised concerns regarding the fast-tracking of the privatizationof government hospitals and services which will be run like bigbusiness entities and that the poor will be deprived of access toessential health services. Among those specifically mentionedin the letter is the Public-Private Partnership (PPP) programcovering the POC.

b. In reply, Public Respondent Herbosa, Undersecretary ofthe Department of Health (hereinafter DOH) and head of the

so-called Modernization of the Philippine Orthopedic Center -Prequalification, Bids and Awards Committee (hereinafterMPOC-PBAC) sent a Letter 12 to Petitioners dated 10 January2013 claiming in a soporific mantra that the program aimed atmodernizing and ensuring delivery of quality health service thruthe Public-Private Partnership (hereinafter PPP) is not

9 Benitez v. Paredes, G.R. No. 29865, August 18, 1928.

10

See for instance, Gonzales v. Macaraig, G.R. No. 87636. November19, 1990, citing Tolentino v. COMELEC, G.R. No. L-34150, 16 October1961, 41 SCRA 702.

11 A copy is attached as Annex “B” and made an integral part hereof.

12 A copy is attached as Annex “C” and made an integral part hereof.


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privatization (―i.e. sale of shares; transfer of ownership‖), hencethe ―apprehensions‖ mentioned in the letter are supposedly―unfounded‖.

c. On February 5, 2013, Petitioners through the NOP sent aletter 13 to Public Respondent Cosette Canilao, ExecutiveDirector of the PPP Center raising its concerns regarding theprivatization of government hospitals, including the PPPProgram for POC. They expressed their dismay to theintensifying privatization through PPP of public health care andservices, to which Petitioners did not even get the benefit of areply;

d. Moreover, Petitioners through the NOP sent a letter 14

toPublic Respondent Ona, dated July 9, 2013, to register theiropposition to the government‘s program of Public-PrivatePartnership like the Philippine Orthopedic Center, transforminggovernment hospitals into corporations, outsourcing ofequipment and provision of services by public hospitals. Theyalso asked for an update on the MPOC PPP plan and the DOHplan on the ―clustering‖ of the Jose Reyes, San Lazaro andFabella government hospitals;

e. Likewise, undersigned counsel for Petitioners sent aletter 15 to Public Respondent Ona dated July 10, 2013requesting for the status, names of bidders, procedure, results,contract, timeframe, documents and information pertinent andrelevant to the bidding and award process of the so-calledModernization of the POC;

f. However, Public Respondent Herbosa merely replied inhis letter 16 that ―there is no such thing as privatization‖ of the

POC but only ―modernization‖ in accordance with the Build,Operate and Transfer (BOT) law. He did not give responsiveanswers to the specific queries and merely justified the aims ofthe so-called modernization and invited the undersignedcounsel for Petitioners to yet another meeting.

13 A copy is attached as Annex “D” and made an integral part hereof.

14

A copy is attached asAnnex “E”

and made an integral part hereof.

15 A copy of which is attached as Annex “F” and made an integral parthereof.

16 A copy is attached as Annex “G” and made an integral part hereof.


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14. At any rate, it is the humble submission of Petitioners thateven if there were available administrative remedies, this Petition fallswithin the well-established exceptions to the customary rule of theirexhaustion considering that the challenged administrative acts arepatently illegal, amounting to lack of jurisdiction; that there isunreasonable delay or official inaction, even obstruction, that willirretrievably prejudice the Petitioners; that the questions involved areof transcendental importance and strong public interest is certainlyinvolved.17

15. Thus, given the circumstances, Petitioners in the concretehave no speedy, plain and adequate remedy except to seek urgent

judicial intervention and file this instant Petition.18

16. In sum, Your Petitioners come directly to this HonorableCourt invoking its concurrent jurisdiction and to adjudicate questionsof law, given the paramount importance or transcendentalsignificance of the issues involved, the magnitude of the actual andimminent injury, and the adverse effects of the questioned acts ofRespondents that will prejudice not only the Petitioners but the publicat large particularly the poor and underprivileged in our society.

STATEMENT OF FACTS

17. The Philippine Orthopedic Center (POC) is a DOH-retainedhospital. It is the country‘s only hospital specializing in orthopediccases including spinal cord injury cases.

18. The mandated functions of the POC include: providing

health and medical services on trauma, orthopedic rehabilitation andother related cases; training of medical graduates/undergraduates aswell as paramedical undergraduates from affiliated schools, collegesand universities; and conducting basic and clinical research in thedifferent specialties and administrative components of hospitaloperations.19

17 Republic of the Philippines vs. Lacap, G.R. No. 158252, March 2,

2007.

18 Ibid.

19 2010 COA Report – POC Executive Summary. Available at .http://www.coa.gov.ph/2010_AAR/NGAs/ES/POC_ES2010.pdf, lastaccessed January 30, 2014.

http://www.coa.gov.ph/2010_AAR/NGAs/ES/POC_ES2010.pdfhttp://www.coa.gov.ph/2010_AAR/NGAs/ES/POC_ES2010.pdf


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19. The POC was originally located in Mandaluyong. Built bythe Americans in 1945 as Philippine Civil Affairs Unit (PACU) No. 1, itwas intended to take care of civilian casualties during the so-calledliberation of Manila and its suburbs.

20. It was turned over to the Philippine Government and itsname was changed to Mandaluyong Emergency Hospital and itsfunctions were redirected to look after accident victims andorthopedic cases. The name was later changed to NationalOrthopedic Hospital in 1947.

21. The hospital was relocated to its present location inBanawe, Quezon City in 1963. It was originally a 500-bed capacity

hospital. Its bed capacity was subsequently increased to 700 torespond to the orthopedic and rehabilitation demands of theincreasing number of patients.

22. In 1982, Batas Pambansa 301was passed changing thename of the hospital from National Orthopedic Hospital to NationalOrthopedic Hospital and Rehabilitation Medicine Center. Its healthprograms were expanded and included activities complementary toorthopedic.

23. By virtue of Republic Act No. 678620 signed in November29, 1989, the hospital is now called Philippine Orthopedic Center.

24. Over the years, the POC has been catering to mostly poorFilipinos with 85-90% of its patients classified as indigents.

25. In his first State of the Nation Address in July 26, 2010,Public Respondent President Aquino identified Public PrivatePartnership (PPP) as the supposed answer to how the government

will finance social services expenditures.

26. Shortly thereafter, on November 18-19, 2010, PublicRespondent Secretary Ona presented the ―PPP Projects for theHealth Sector‖. First on the list of these PPP Projects is the POC.21

20 “An Act Changing the Name of the National Orthopedic Hospital and

Rehabilitation Medical Center in Quezon City to Philippine OrthopedicCenter.”

21 PPP Website. Available at http://ppp.gov.ph/2010/11/DOH-Infrastructure-Philippines-2010-Summit-Presentation.pdf , last accessed January 31, 2014.

http://ppp.gov.ph/2010/11/DOH-Infrastructure-Philippines-2010-Summit-Presentation.pdfhttp://ppp.gov.ph/2010/11/DOH-Infrastructure-Philippines-2010-Summit-Presentation.pdfhttp://ppp.gov.ph/2010/11/DOH-Infrastructure-Philippines-2010-Summit-Presentation.pdfhttp://ppp.gov.ph/2010/11/DOH-Infrastructure-Philippines-2010-Summit-Presentation.pdfhttp://ppp.gov.ph/2010/11/DOH-Infrastructure-Philippines-2010-Summit-Presentation.pdf


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27. The other PPP projects mentioned in the above-statedpresentation of Public Respondent Sec. Ona are:

a. Research Institute for Tropical Medicine: Local Production ofPentavalent Vaccine (DPT, HepaB and HiB);

b. San Lazaro Hospital as the Premiere Research Center forInfectious Diseases;

c. Establishment of a Multi-Specialty Center in Oncology,Neurosciences, and Stem Cell Research in DOH retainedhospitals;

d. Eversley Childs Sanitarium (Metro Cebu City) Open Land Area for Commercial Operations; and

e. Western Visayas Sanitarium (Iloilo): Open Land Area for

Commercial Operations

28. By their own admission, the ―modernization‖ of the POCunder the PPP is only the first among many on the chopping block.To reflect the thrust of the Aquino Administration in using PPP tofinance health services, Public Respondent Sec. Ona issued

Administrative Order No. 2010 – 0036 dated December 16, 2010.Entitled the Aquino Health Agenda: Achieving Universal Health Carefor All Filipinos, the said Administrative Order identified public-privatepartnerships as a means to ―support the immediate repair,rehabilitation and construction of selected priority health facilities.‖

29. On September 18, 2012, the National Economic andDevelopment Authority (NEDA) Board approved the DOH‘s project tomodernize the POC through a build-operate-and-transfer (BOT)arrangement under the PPP Program.22

30. On October 25, 2012, in and ADB-led event entitled ―PPP inHealth Manila 2012‖, the DOH showcased the proposed so-called

―Modernization of POC‖ before prospective investors as the country‘sfirst health project to be undertaken under the PPP program.23

31. On November 18, 2012, the MPOC PBAC headed by PublicRespondent Undersecretary Herbosa issued the Invitation to Qualify

22 On Mending Broken Bones and the Modernization of the PhilippineOrthopedic Center. PPP Talk.Volume 2, Number 1 – January-March 2013,

Page 9. Retrievable from http://ppp.gov.ph/wp-content/uploads/2013/05/PPP-Talk-Vol2No1_2013.pdf , last accessed on January 29,2014.

23 PPP Center Press Release dated October 23, 2012: http://ppp.gov.ph/?page_id=7260&paged=12, last accessed on January 29, 2014.

http://ppp.gov.ph/wp-content/uploads/%202013/05/PPP-Talk-Vol2No1_2013.pdfhttp://ppp.gov.ph/wp-content/uploads/%202013/05/PPP-Talk-Vol2No1_2013.pdfhttp://ppp.gov.ph/wp-content/uploads/%202013/05/PPP-Talk-Vol2No1_2013.pdfhttp://ppp.gov.ph/wp-content/uploads/%202013/05/PPP-Talk-Vol2No1_2013.pdfhttp://ppp.gov.ph/wp-content/uploads/%202013/05/PPP-Talk-Vol2No1_2013.pdf


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and to Bid for the ―Modernization of the Philippine OrthopedicCenter‖.

32. The project involves the construction of a 700-bed capacitysuper-specialty tertiary orthopedic hospital to be located within theNational Kidney and Transplant Institute (NKTI) Compound alongEast Avenue, Quezon City. The concessionaire will design, build,finance, operate and maintain the facility until the end of the 25-yearconcession period, and then transfer the hospital to the DOH.

33. The estimated project cost: PHP 5.69 Billion ((PhP5,069,000,000.00) or USD 132.33 Million.24

34. The Invitation to Qualify and to Bid - which is very telling asto the scope of the privatization and commercialization - reads in part:

The Department of Health (DOH) invites Prospective Biddersto apply to qualify and bid for the Modernization of the PhilippineOrthopedic Center (MPOC) under the Public-Private PartnershipProgram through a Build-Operate-and Transfer scheme. TheMPOC will involve the construction of a new hospital facility withinthe National Kidney Transplant Institute compound along East

Avenue, Quezon City, Metro Manila, Philippines and will comprisethe following:

1. Planning, design and construction of a minimum of700-bed capacity super specialty tertiary hospitalproviding orthopedic clinical services and alliedservices;

2. Procurement, installation, management, operationsand maintenance of modern diagnostic and clinicalequipment;

3. Procurement, installation, management, operation andmaintenance of IT facilities;

4. Operation and maintenance of the entire Facility

including the diagnostic center, out-patientdepartments, in-patient department and all otheractivities related to the operation of the hospital;

5. Provision of appropriate administrative and auxillaryservices (clinical laboratory, imaging and radiology,sterile supplies, pharmacy) of advanced level that iscommensurate with the specific clinical specialtypracticed in tertiary care;

6. Provision of teaching and training facilities for basicand advanced clinical care and management byspecialized and sub-specialized forms of treatment,

highly specialized surgical procedure and intensivecare, as well as care on the specific prevalent

24 PPP Website. Available at http://ppp.gov.ph/?p=7686, last accessed

January 31, 2014

http://ppp.gov.ph/?p=7686http://ppp.gov.ph/?p=7686http://ppp.gov.ph/?p=7686http://ppp.gov.ph/?p=7686


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diseases in the locality pertaining to the specialtyoffered at the hospital. This inter-alia includescontinuance of the existing residency trainingprograms which include among others the Orthopedic

Surgery Residency Training Program as accredited bythe Philippine Board of Orthopedics which is currentlybeing provided by the existing POC; and

7. Provision of appropriately qualified staff (medical,paramedical, nursing, support)

The MPOC will be awarded through open competitive publicbidding following the rules and procedures prescribed under theBOT Law of the Philippines (R.A.6957 as amended by R.A. 7718)and its 2012 Revised Implementing Rules and Procedures.

35. As aforestated, starting in late 2012 up to July 2013, thePetitioners through their respective health organizations and theircounsel have periodically raised in formal as well as informal waysthrough letters, dialogues, pickets and public statements theiropposition to the privatization of public hospitals particularly theimminent bidding of the POC. But all in vain.

36. Meanwhile, the privatization-cum-modernization-cum-corporatization flea market roadshow went into full swing. On January28, 2013, the MPOC-PBAC conducted the Pre-Bid Conference at theLung Center of the Philippines Compound. The MPOC-PBACannounced nine (9) prospective bidders:

1) Siemens, Inc Health Sector2) G.E. Healthcare General Electric Philippines, Inc.3) Sta. Clara International Corp.4) Mount Grace Hospital Venture5) Philips Electronics and Lighting , Inc.6) Metro Pacific Investments

7) Megawide Engineering Excellence8) Strategic Alliance Holding, Inc.9) Data Trail Corporation25

37. The deadline for the submission of bids for the―Modernization of POC‖ was originally scheduled on March 26, 2013.The deadline was moved several times until it was finally set on June4, 2013.

38. In the meantime, Petitioners through the NationalOrthopedic Hospital Workers Union – Alliance of Health Workers

25 PPP Website. Available at http://ppp.gov.ph/?p=7686, last accessedon January 29, 2014.

http://ppp.gov.ph/?p=7686http://ppp.gov.ph/?p=7686http://ppp.gov.ph/?p=7686


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(NOHWU-AHW) officers attended a meeting with Public RespondentSecretary Ona on June 6, 2013. The officers of the union brought tothe attention of Secretary Ona their apprehensions concerning their

job security once the POC is operated by a private company. Theylikewise pointed out how the indigent patients of POC will beadversely affected under a PPP set-up.

39. Public Respondent Sec. Ona gave a pain reliever-peptalkby telling the NOHWU-AHW officers that employees of POC have achoice to either work in the ―Modernized‖ POC or work in anotherDOH hospital.

40. On June 4, 2013, only one bidder – Megawide-World Citi

Consortium, submitted a bid.

41. The DOH‘s MPOC-PBAC opened the technical bid ofMegawide-World Citi Consortium on June 18, 2013 and declared itcomplete.26 The DOH Technical Working Group for the projectevaluated the technical proposal of Megawide-World Citi Consortium.

42. On June 25, 2013, the DOH‘s MPOC-PBAC opened thefinancial bid of Megawide-World Citi Consortium and declared itcomplete. The DOH then submitted the documents to the InvestmentCoordination Committee of the National Economic and Development

Authority (ICC-NEDA) for evaluation.27

43. On November 21, 2013, the NEDA Board chaired by PublicRespondent President Aquino, approved the bid contract submittedby Megawide. 28

44. On November 28, 2013, the MPOC-PBAC issuedResolution No. 13 recommending to Public Respondent Secretary

Ona that the contract be awarded to Megawide-World CitiConsortium.

26 PPP Center Press Release, http://ppp.gov.ph/?page_id=7260&paged=2, last accessed on January 29, 2014.

27 PPP Center Press Release, http://ppp.gov.ph/?p=14984, last accessedon January 29, 2014.

28

Citicore Holdings Investment Inc. is the parent firm of and controllingstockholder with 56.8% stake in Megawide. Sybase Equity InvestmentsCorporation, a company owned by Henry Sy and family, directly andindirectly owns 17.02% of Megawide. Disclosure to the Philippine StockExchange - Public Ownership Report as of September 30, 2013. Availableat http://www.pse.com.ph/resource/corpt/2013/MWIDE_POR_Sep2013.pdf , last accesssed January 29, 2014.

http://ppp.gov.ph/?page_id=7260&%20paged=2http://ppp.gov.ph/?page_id=7260&%20paged=2http://ppp.gov.ph/?page_id=7260&%20paged=2http://ppp.gov.ph/?p=14984http://ppp.gov.ph/?p=14984http://ppp.gov.ph/?p=14984http://www.pse.com.ph/resource/corpt/2013/MWIDE_POR_Sep2013%20.pdfhttp://www.pse.com.ph/resource/corpt/2013/MWIDE_POR_Sep2013%20.pdfhttp://www.pse.com.ph/resource/corpt/2013/MWIDE_POR_Sep2013%20.pdfhttp://www.pse.com.ph/resource/corpt/2013/MWIDE_POR_Sep2013%20.pdfhttp://www.pse.com.ph/resource/corpt/2013/MWIDE_POR_Sep2013%20.pdfhttp://ppp.gov.ph/?p=14984http://ppp.gov.ph/?page_id=7260&%20paged=2http://ppp.gov.ph/?page_id=7260&%20paged=2


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45. On December 11, 2013, the PPP Center came out with apress release that the DOH issued the Notice of Award to theMegawide-World Citi Consortium.

46. Upon learning of such news, Petitioner Alliance of HealthWorkers President Jossel Ebesate sent a letter (noted byundersigned counsel Atty. Edre U. Olalia) dated December 17, 2103to Public Respondent Secretary Ona requesting for a Certified TrueCopy of the Notice of Award. The letter was duly received by theDOH on December 20, 2013.29

47. Not having received any response yet from the DOH, theNational Union of Peoples‘ Lawyers (NUPL), undersigned counsel for

the Petitioners, through Atty. Edre U. Olalia and Petitioners Hon.Colmenares and Hon. Zarate sent a follow-up letter dated January13, 201430 to Public Respondents Secretary Ona and UndersecretaryHerbosa which was duly received on January 14, 2014.

48. The letter made a similar request for a copy of the Notice of Award as well as other documents and pertinent information relatedto the bidding and award of contract for the POC project. As of thefiling of this Petition, undersigned counsel has not received anyresponse to the subject letter.

49. Meanwhile, on January 16, 2014, Petitioner Ebesatereceived a letter 31 from the Public Respondent Herbosa by way ofreply to the former‘s letter dated December 17, 2013, merelyinforming him that the Notice of Award to the Megawide-World CitiConsortium is available through the PPP Center website and referredhim to it without providing any copy of the Notice of Award itself.

50. Petitioners forthwith downloaded the said ―Notice of Award

and Post-Award Requirements.‖32

51. In preparation for the filing of the instant Petition,Petitioners through AHW staff Luzviminda Quinivista asked the Office

29 A copy of which is attached as Annex “H” and made an integral parthereof.

30 A copy of which is attached as Annex “I”and made an integral part

hereof.

31 A copy of which is attached as Annex “J” and made an integral parthereof.

32 Annex “A” hereof.


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of Public Respondents Secretary Ona and Undersecretary Herbosaas late as the afternoon of January 30, 2014 to certify thedownloaded hardcopy of the said document but a DOH lawyertherein, in another manifestation of frustrating the Petitioners‘ validdemands, refused to do so and instead merely referred them toprocure it at the PPP Center.

52. Given the unjustified refusal and even resistance to performa purely ministerial act of certifying a document coming from andsigned by Public Respondent Secretary Ona‘s office, Petitioners haveno other option but to implore this Honorable Court that the saidNotice of Award be given judicial notice . At any rate, Petitioners shallforthwith continue to endeavor to submit a certified true copy of the

same to this Honorable Court immediately upon procurement thereof.

53. The ―Notice of Award and Post-Award Requirements,‖(hereinafter Notice of Award) dated December 6, 2013 signed byPublic Respondent Secretary Ona, and with the written conforme ofPrivate Respondent Manuel Louie Ferrer for the Consortium ofMegawide Construction Corporation and World Citi Medical Center(hereinafter Consortium) dated December 9, 2013, is reproducedhere for easy reference:

--------------------------------------------------------------------------------------------

Republic of the Philippines

Department of Health

OFFICE OF THE SECRETARY

MODERNIZATION OF THE PHILIPPINE ORTHOPEDIC CENTER PROJECT

Notice of Award and

Post-Award Requirements

06 December 2013

Consortium of Megawide Construction Corporation and

World Citi Medical Center

#20 N. Domingo Street, Brgy. Valencia

Quezon City

Attention: MANUEL LOUIE B. FERRER

Vice President for Marketing

Megawide Construction Corporation

Gentlemen:


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We are pleased to inform the consortium of Megawide Construction

Corporation and World Citi Medical Center (the “Megawide-World Citi

Consortium”) that, after thorough evaluation by the Pre-qualification, Bids

and Awards Committee of the Department of Health for the MPOC Project(the “DOH MPOC-PBAC”), followed by the approval by the National

Economic and Development Authority (“NEDA”) Investment Coordination

Committee of the consortium’s bid pursuant to Sections 9.1 and 9.3 of the

Revised Implementing Rules and Regulations of Republic Act 7718 (“BOT

LAW IRR”), the NEDA Board has confirmed the approval of the sole

complying bid of the Megawide-World Citi Consortium and award of the

Modernization of the Philippine Orthopedic Center Project (“MPOC

Project”) to the Megawide-World Citi Consortium.

As such, the DOH MPOC-PBAC found the consortium’s bid as the compliant

and winning bid and forthwith issued Resolution No. 13 dated 28

November 2013 recommending to the Secretary of the Department of

Health to award the contract for the MPOC Project to the Megawide-World

Citi Consortium.

Pursuant to the provisions of Section 11.2 of the BOT Law IRR, the

undersigned approved the DOH MPOC-PBAC recommendation.

Accordingly, DOH hereby issues this Notice of Award to the Megawide-

World Citi Consortium. Megawide-World Citi Consortium is required to

submit the Post Award requirements enumerated under Section VIII of the

Instructions to Bidders (“ITB”) for the MPOC Project, including the

consortium’s written conformity to this Notice of Award, within twenty (20)

days from the consortium’s receipt of this Notice of Award. Attached

hereto, as Annex A, is a list of the Post Award requirements to be fulfilled

by the Megawide-World Citi Consortium.

We look forward to your immediate compliance with the Post-Award

requirements as enumerated under Section VIII of the ITB for the MPOC

Project, to facilitate the scheduled signing of the Build-Operate-and-

Transfer Agreement for the MPOC Project.

Very truly yours,

(Sgd.) ENRIQUE T. ONA, M.D., FPCS, FACS

Secretary of Health

CONFORME:

(Sgd.) MANUEL LOUIE B. FERRER


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Authorized Signatory

MEGAWIDE WORLD CITI CONSORTIUM

Date: December 9, 2013----------------------------------------------------------------------------------------------------

54. The Post Award requirements mentioned in the Notice of Award include, among others:

“(c ) Proof of commitments of the equity contribution equivalent

to at least One Billion One Hundred Thirty-Nine Million Philippine

Pesos (PhP 1,139,000,000.00) through the submission by each

Consortium Member of an undertaking x x x to infuse the required

equity contribution to the consortium or SPC, as the case may be,

within forty0five (45) days from the issuance of the Notice of Award;

“(d) Proof of firm commitments from reputable financial institutions

to provide sufficient credit lines equivalent to Four Billion Five

Hundred Fifty-two Million Five Hundred Thousand Philippine Pesos

(PhP 4,552,500,000.00). This amount may be reduced by any amount

of committed equity contribution in excess of One Billion One

Hundred Thirty-Nine Million Philippine Pesos (PhP

1,139,000,000.00)”

55. As of the filing of this Petition, Petitioners are neither awareor have any knowledge or information nor are they in receipt of anypublic information whether or not the Post-Award Requirements havebeen fully complied with or whether the BOT Agreement has beensigned.

GROUNDS

I. Public Respondents committed grave abuse ofdiscretion amounting to lack or excess of jurisdictionwhen they relinquished the duty and responsibility toprovide and ensure a basic social service such ashealth to a private entity through privatization or

commercialization of a government hospital (thePhilippine Orthopedic Center) to the prejudice of thepoor and underprivileged.


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II. Public Respondents committed grave abuse ofdiscretion amounting to lack or excess of jurisdictionwhen they expanded the application of the Build,Operate and Transfer (BOT) law to cover theprivatization of health services.

ARGUMENTS/DISCUSSION

I. Public Respondents committed grave abuse of discretionamounting to lack or excess of jurisdiction when they

relinquished the duty and responsibility to provide andensure a basic social service such as health to a privateentity through privatization or commercialization of agovernment hospital (the Philippine Orthopedic Center) tothe prejudice of the poor and underprivileged.x----------------------------------------------------------------------x

56. The central thesis of this Petition is that it is the State‘s

responsibility to provide and ensure a basic social service such ashealth based on the people‘s constitutional right to health and accessto affordable health services and free medical care. It is the firmposition of the Petitioners that such constitutional, nay moral, dutyshould not be relinquished to a private entity through the privatizationor commercialization of a government hospital to the prejudice anddetriment of the public especially of the poor and underprivileged forwhom the said hospital is devoted by law.

A. The privatization of a publichospital like the PhilippineOrthopedic Center (POC)does not conform to theconstitutional mandate onhealthx---------------------------------------x

57. The privatization of the Philippine Orthopedic Center willresult in the denial of medical services to thousands of Filipinosthereby violating international covenants and constitutional provisionsrecognizing the right to health.


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58. To start with, international covenants recognizing the rightto health are legally binding.

59. The right to health is considered among those consideredas a fundamental right. Thus, the right to health is one of those rightsexpressly mentioned in international covenants.

60. Under Article 25 of the Universal Declaration of HumanRights (UDHR), wherein the Philippines is one of the signatories andeven a drafter, the following is provided:

Article 25. Everyone has the right to a standard of livingadequate for the health and well being of himself and of his family,including food, clothing and housing and medical care andnecessary social services, and the right to security in the event ofunemployment, sickness, disability, widowhood, old age or otherlack of livelihood in circumstances beyond his control.

61. This is further reiterated in the International Covenant onEconomic, Social and Cultural Rights under Article 12 whichprovides:

Article 121. The States Parties to the present Covenant recognize the right of

everyone to the enjoyment of the highest attainable standard ofphysical and mental health.2. The steps to be taken by the States Parties to the presentCovenant to achieve the full realization of this right shall includethose necessary for:

X X X

(c) The prevention, treatment and control of epidemic, endemic,occupational and other diseases;(d) The creation of conditions which would assure to all medicalservice and medical attention in the event of sickness.

62. The UDHR adopted unanimously by the United Nations onDecember 10, 1948 was not written as a treaty, and although therights contained in the Declaration have been described asaspirational norms, they are still norms.33

63. The treaties which were to codify those norms, theInternational Convention on Civil and Political Rights (ICCPR) and

33

The Implications of the Global Economic Crisis on Economic, Socialand Cultural Rights, Jeanne Mirer, President, International Associationof Democratic Lawyers (IADL), Co-chair of International Committee,National Lawyers Guild (NLG) of the US. Paper delivered at the 5thConference of Lawyers in Asia Pacific (COLAP), September 2010, Manila.


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International Convention on Economic, Social and Cultural Rights(ICESCR), were produced in the Covenants of 1966. State Parties tothe ICESCR, which implement these aspects of the UDHR, arecommitted to the progressive full realization of the rights in theCovenant and UDHR. Using the principles in these instruments, it issubmitted that government has an affirmative duty to legislate,appropriate and adjudicate so as to realize these rights.34

64. The rights contained in these instruments have attained thestatus of customary international law. Customary international law islaw which is so universally accepted that compliance is a legal, not

just a moral duty. One way to determine whether certain rights haveattained customary international law status is whether they are

universally recognized in treaties. Both the ICCPR and the ICESCRhave been either signed or ratified by almost all countries in theworld. This means that a strong argument can be made that itsprovisions are binding regardless of ratification.35

65. There is no question that under these internationalcovenants, it is the State which is given the primary task of ensuringthat its citizens enjoy these rights. The question, therefore, is - arethese international covenants legally binding?

66. This Honorable Court answered in the affirmative. In thecase of Hong Kong Administrative Region vs. Olalia36 theHonorable Court ruled on the obligatory effect of the UniversalDeclaration of Human Rights. The Honorable Court said:

―On a more positive note, also after World War II, both internationalorganizations and states gave recognition and importance tohuman rights. Thus, on December 10, 1948, the United NationsGeneral Assembly adopted the Universal Declaration of HumanRights in which the right to life, liberty and all the other fundamental

rights of every person were proclaimed. While not a treaty, theprinciples contained in the said Declaration are nowrecognized as customarily binding upon the members of theinternational community.―

67. Petitioners are very much aware that the issue in theabove-cited case involves the right to bail in extradition proceedings.But if the Honorable Court recognizes that under the UniversalDeclaration of Human Rights, the “ Philippines should see to it that theright to liberty of every individual is not impaired” , then it is of equal, if

34 Ibid.

35 Ibid.

36 G.R. No. 153675, April 19, 2007.


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not greater importance, for the Honorable Court, under the UniversalDeclaration of Human Rights, to recognize that the State should seeto it that the right to health of every Filipino for the preservation ofhuman life should not be impaired.

68. The provisions in international covenants relating to healthare reflected in our own Constitution. Thus, Under Article II – Declaration of Principles and State Policies, the following is written:

Section 15. The State shall protect and promote the right tohealth of the people and instill health consciousness among them.

69. Furthermore, Article XIII on Social Justice and Human

Rights provides:

Section 11. The State shall adopt an integrated andcomprehensive approach to health development which shallendeavour to make essential goods, health and other socialservices available to all the people at affordable cost.

There shall be priority for the needs of the underprivileged,sick, elderly, disabled, women and children.

The State shall endeavour to provide free medical care to

paupers.

Section 12. The State shall establish and maintain aneffective food and drug regulatory system and undertakeappropriate health, manpower development, and research,responsive to the country‘s heath needs and problems.

70. From the abovestated constitutional provisions, it is plainthat it is the State that is duty-bound with ensuring the people‘s rightto health. To abdicate, surrender or relinquish such basic duty andresponsibility and pass it on to private entities in any guise or form isclearly a grave abuse of discretion. The question is – in case ofviolation, can relief be obtained from our courts?

B. The enforcement,advancement and protectionof the right to health asexpressed in the Constitutionare legally demandable from

the governmentx----------------------------------------x

71. Having established that there has been a violation of theconstitutional mandate on health, the next question we need to


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grapple with is whether the right to health – and access to affordablehealth services and the provision of free medical care – are legallydemandable constitutional rights. Petitioners humbly submit theconstitutional provisions on the right to health are sources of legalobligations.

72. It is well to emphasize the ruling of the Honorable Court inManila Prince Hotel vs. GSIS37 regarding the nature ofconstitutional provisions.

XXX

....unless it is expressly provided that a legislative act is necessaryto enforce a constitutional mandate, the presumption now is that all

provisions of the constitution are self-executing. If the constitutionalprovisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore andpractically nullify the mandate of the fundamental law.

73. The Honorable Court further explained, thus:

In case of doubt, the Constitution should be considered self-executing rather than non-self-executing . . . . Unless the contrary isclearly intended, the provisions of the Constitution should be

considered self-executing, as a contrary rule would give thelegislature discretion to determine when, or whether, they shall beeffective. These provisions would be subordinated to the will of thelawmaking body, which could make them entirely meaningless bysimply refusing to pass the needed implementing statute.

74. A reading of Section 11 and Section 12 of Article XIII readilyshows that no legislative act is necessary to enforce the constitutionalmandate in these provisions. Hence, these provisions should beconsidered self-executing. Consequently, any violation of suchprovisions is actionable before the courts of law.

75. Even in the case of Section 15 under Article II – Declarationof Principles and State Policies – it is submitted that judicial remedy isavailable in case of its violation. The text of the provision is clear thatno legislative act is necessary to enforce it. Likewise, the HonorableCourt‘s decision in the same case of Manila Prince Hotel vs. GSIS,quoting Fr. Joaquin Bernas, is an eloquent reminder on the duty ofthe executive branch of government to implement every provision ofthe Constitution:

The executive department has a constitutional duty to implementlaws, including the Constitution, even before Congress acts — provided that there are discoverable legal standards for

37 G.R. No. 122156, February 3, 1997.


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executive action. When the executive acts, it must be guided byits own understanding of the constitutional command and ofapplicable laws. The responsibility for reading and understandingthe Constitution and the laws is not the sole prerogative of

Congress. If it were, the executive would have to ask Congress, orperhaps the Court, for an interpretation every time the executive isconfronted by a constitutional command. That is not howconstitutional government operates.‖ (emphasis supplied)

76. The wording of Section 15 Article II of the Constitution -“ The State shal l protect and p rom ote the r ight to heal th of thepeople ....” is clear enough to constitute a ―discoverable legalstandard‖ vis-à-vis the government‘s act to privatize the PhilippineOrthopedic Center. As will be shown later, such plan will lead to the

denial of medical services to thousands of Filipinos. Such denial ofmedical services would constitute a clear violation when set againstthe standard for the State to “protect and promote the right to healthof the people”.

77. In fact, the Court recognized Section 15 Article II of theConstitution as a source of legal rights in the case of Juan AntonioOposa, et al. vs. Hon. Fulgencio Factoran, Jr., etc, et al. 38 Thediscussion of the Honorable Court in this case is worth repeating:

The complaint focuses on one specific fundamental legal right — the right to a balanced and healthful ecology which, for the first timein our nation's constitutional history, is solemnly incorporated in thefundamental law. Section 16, Article II of the 1987 Constitutionexplicitly provides:

Sec. 16. The State shall protect and advance the right of thepeople to a balanced and healthful ecology in accord with therhythm and harmony of nature.

This right unites with the right to health which is

provided for in the preceding section of the same article:

Sec. 15. The State shall protect and promote the right tohealth of the people and instill health consciousness among them.

While the right to a balanced and healthful ecology is to befound under the Declaration of Principles and State Policies and notunder the Bill of Rights, it does not follow that it is less importantthan any of the civil and political rights enumerated in the latter.Such a right belongs to a different category of rights altogether for itconcerns nothing less than self-preservation and self-perpetuation

— aptly and fittingly stressed by the petitioners — the advancementof which may even be said to predate all governments andconstitutions. As a matter of fact, these basic rights need not evenbe written in the Constitution for they are assumed to exist from the

38 G.R. No. 101083, July 30, 1993.


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inception of humankind. If they are now explicitly mentioned in thefundamental charter, it is because of the well-founded fear of itsframers that unless the rights to a balanced and healthfulecology and to health are mandated as state policies by the

Constitution itself, thereby highlighting their continuing importanceand imposing upon the state a solemn obligation to preserve thefirst and protect and advance the second, the day would not be toofar when all else would be lost not only for the present generation,but also for those to come — generations which stand to inheritnothing but parched earth incapable of sustaining life.

78. There is hence a recognition that, like the civil and politicalrights embodied in the Bill of Rights, the government isconstitutionally mandated to advance and protect the right to health,and the other economic social and cultural rights. The ruling of theCourt in Oposa is considered a landmark decision as it recognizesthe right to health provision under Section 15 of Article XIII of theConstitution as a source of legal obligation, and therefore, actionablebefore the courts of law.

79. Moreover, it is evident that even without its inclusion in theConstitution, the right to health has been recognized as among theparamount rights that a citizen is entitled to. In fact, it is affirmed inthe same decision that the right to health pre-dated the constitution

and other legislation recognizing its existence.

80. Differently stated, the right to health is not created by lawand the constitution. It existed prior thereto, and these constitutionalprovisions on these matters are mere affirmations of its existence.Under this context, it is just proper that those entitled to it should begiven a remedy to demand compliance thereof. As such, theSupreme Court further ruled in Oposa that:

―The foregoing considered, Civil Case No. 90-777 be said to

raise a political question. Policy formulation or determination by theexecutive or legislative branches of Government is not squarely putin issue. What is principally involved is the enforcement of a

right v is -à-v is policies already formulated and expressed in

legislation. It must, nonetheless, be emphasized that the politicalquestion doctrine is no longer the insurmountable obstacle to theexercise of judicial power or the impenetrable shield that protectsexecutive and legislative actions from judicial inquiry or review.‖

81. While at that time, this Honorable Court did not squarelyresolve the issue of justiciability of the right to health, it also did not

categorically state that it is not a justiciable issue, and in fact grantedthe Petition and directed the lower court who issued the questionedorder which was the subject of the Oposa petition to resolve the caseon the merits.


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82. Indeed, there is no categorical statement that it is justiciable, but the fact that it required the lower court to resolve thecase on the merits is an indication that the Supreme Court recognizesthe jurisdiction of the courts to adjudicate issues pertaining to theright to health, and also issues pertaining to the other economicsocio-cultural rights.

83. Petitioners thus now invoke the ruling in Oposa to enjointhe Respondents from further proceeding with the privatization of thePOC.

84. The justiciability of the right to health and other economicsocio-cultural rights is now becoming the prevailing progressive

interpretation in other jurisdictions where economic socio-culturalrights were traditionally seen as non-enforceable rights, and weretherefore normally non-justiciable questions.

85. In 1996, the Supreme Court of India issued its decision inPaschim Banga Khet Mazdoorsamity vs. State Of West Bengal &Anron,39 wherein it ruled on the right to timely medical care, and theenforceability of the Government‘s liability for its failure to providesuch timely medical care.

86. The Mazdoorsamity case involves an accident victim whowas denied admission in several medical institutions on the groundthat there was no available rooms/bed to accommodate him, or thatthere was no adequate medical facility to treat his injury, TheSupreme Court of India ruled that the right to timely medicaltreatment is a valid cause of action to demand compensation andheld that:

―Article 21 imposes an obligation on the State to safeguardthe right to life of every person. Preservation of human life is thus ofparamount importance. The Government hospitals run by the Stateand the medical officers employed therein are duty bound to extendmedical assistance for preserving human life. Failure on the part ofa Government hospital to provide timely medical treatment to aperson in need of such treatment results in violation of his right tolife guaranteed under Article 21. In the present case there wasbreach of the said right of Hakim Seikh guaranteed under Article 21when he was denied treatment at the various Government hospitalswhich were approached even though his condition was very seriousat that time and he was in need of immediate medical attention.Since the said denial of the right of Hakim Seikh guaranteed under

Article 21 was by officers of the State in hospitals run by the Statethe State cannot avoid its responsibility for such denial of theconstitutional right of Hakim Seikh. In respect of deprivation of theconstitutional rights guaranteed under Part III of the Constitution the

39 1996 SCC (4) 37, JT 1996 (6) 43, May 6, 1996.


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position is well settled that adequate compensation can be awardedby the court for such violation by way of redress in proceedingsunder Articles 32 and 226 of the Constitution. [See : Rudal Sah v.State of Bihar, 1983 (3) SCR 508 Nilabati Behara v. State of

Orissa. 1993 (2) SCC 746: Consumer Education and ResearchCentre v. Union of India, 1995 (3) SCC 42]. Hakim Seikh should,therefore, be suitably compensated for the breach of his rightguaranteed under Article 21 of the Constitution.‖

87. In effect, above-cited ruling in Mazdoorsamity affirms thatthe right to health is legally demandable from the Government. In amore empahtic fashion, it said:

It is no doubt true that financial resources are needed for providingthese facilities. But at the same time it cannot be ignored that it is

the constitutional obligation of the State to provide adequatemedical services to the people. Whatever is necessary for thispurpose has to be done. In the context of the constitutionalobligation to provide free legal aid to a poor accused this Court hasheld that the State cannot avoid its constitutional obligation in thatregard on account of financial constraints. The said observationswould apply with equal, if not greater, force in the matter ofdischarge of constitutional obligation of the State to provide medicalaid to preserve human life.

88. Later on, in the landmark case decided by the ConstitutionalCourt of South Africa, in the Government of South Africa, et al. vs.Irene Grootboom, et al.,40 , it was held that:

―[20] While the justiciability of socio-economic rights has been thesubject of considerable jurisprudential and political debate, theissue of whether socio-economic rights are justiciable at all in South

Africa has been put beyond question by the text of our Constitutionas construed in the Certification judgment. During the certificationproceedings before this Court, it was contended that they were not

justiciable and should therefore not have been included in the text

of the new Constitution. In response to this argument, this Courtheld:

―‗[T]hese rights are, at least to some extent, justiciable. Aswe have stated in the previous paragraph, many of the civiland political rights entrenched in the [constitutional textbefore this Court for certification in that case] will give riseto similar budgetary implications without compromising their

justiciability. The fact that socio-economic rights will almostinevitably give rise to such implications does not seem tous to be a bar to their justiciability. At the very minimum,

socio-economic rights can be negatively protected fromimproper invasion.‘

40 Case CCT 11/00, October 4, 2000.


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―Socio-economic rights are expressly included in the Bill ofRights; they cannot be said to exist on paper only. Section 7(2) ofthe Constitution requires the state ―to respect, protect, promote andfulfill the rights in the Bill of Rights‖ and the courts are

constitutionally bound to ensure that they are protected and fulfilled.The question is therefore not whether socio-economic rights are justiciable under our Constitution, but how to enforce them in agiven case. This is a very difficult issue which must be carefullyexplored on a case-by-case basis. To address the challenge raisedin the present case, it is necessary first to consider the terms andcontext of the relevant constitutional provisions and their applicationto the circumstances of this case. Although the judgment of theHigh Court in favour of the appellants was based on the right toshelter (section 28(1)(c) of the Constitution), it is appropriate toconsider the provisions of section 26 first so as to facilitate a

contextual evaluation of section 28(1)(c).‖

89. Notably, the decision of the Constitutional Court of South Africa on the justiciability of the economic socio-cultural rights wasbased on the contextual interpretation of the provisions of theirconstitution embodying the said rights. They interpreted theseprovisions based on their historical and social context, recognizingthat these rights are enshrined in their Constitution, not only for thepurpose of recognizing its existence, but also a mandate to theGovernment to ensure that they are properly fulfilled, advanced and

protected.

90. Thus, the Constitutional Court of South Africa further held inthe Irene Grootboom case, supra, that:

―Rights also need to be interpreted and understood in theirsocial and historical context. The right to be free from unfairdiscrimination, for example, must be understood against our legacyof deep social inequality. The context in which the Bill of Rights is tobe interpreted was described by Chaskalson P in Soobramoney :

―‗We live in a society in which there are greatdisparities in wealth. Millions of people are living indeplorable conditions and in great poverty. There is a highlevel of unemployment, inadequate social security, andmany do not have access to clean water or to adequatehealth services. These conditions already existed when theConstitution was adopted and a commitment to addressthem, and to transform our society into one in which therewill be human dignity, freedom and equality, lies at theheart of our new constitutional order. For as long as these

conditions continue to exist that aspiration will have a

hollow ring.‘‖ (Underscoring supplied.)

91. Two years after, the Constitutional Court of South Africaaffirmed its ruling in the Grootboom case and emphasized thateconomic social and cultural rights are justiciable. These rights


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provided under their constitution are enforceable on the governmentsubject to certain limitations of resources. But these limitations ofresources do not affect the enforceability of the said rights, since theGovernment is mandated by the same provisions to adopt measuresto ensure the enforcement of these rights. Thus, in the Minister ofHealth, et al. vs. Treatment Action Campaign, et al.,41 it held that:

―[29]In effect what the argument comes down to is that sections 26and 27must be construed as imposing two positive obligations onthe state: one an obligation to give effect to the 26(1) and 27(1)rights; the other a limited obligation to do so progressively through"reasonable legislative and other measures, within its availableresources". Implicit in that contention is that the content of the rightin subsection (1) differs from the content of the obligation in

subsection (2). This argument fails to have regard to the waysubsections (1) and (2) of both sections 26 and 27 are linked in thetext of the Constitution itself, and to the way they have beeninterpreted by this Court in Soobramoney and Grootboom.

―[30]Section 26(1) refers to the ‗right‘ to have access to housing.Section 26(2), dealing with the state's obligation in that regard,requires it to ‗take reasonable legislative and other measures,within its available resources, to achieve the progressive realisationof this right‘. The reference to ‗this right‘ is clearly a reference to the section 26(1) right. Similar language is used in section 27

which deals with health care services, including reproductive healthcare, sufficient food and water, and social security, including, ifpersons are unable to support themselves and their dependants,appropriate social assistance. Subsection (1) refers to the righteveryone has to have ‗access‘ to these services; and subsection (2)obliges the state to take ‗reasonable legislative and othermeasures, within its available resources, to achieve the progressiverealisation of each of these rights‘. The rights requiringprogressive realisation are those referred to in sections 27(1)(a), (b)and (c).‖

92. Similarly, in ruling that an action to assert the right tohealthful ecology, and also the right to health is not a politicalquestion, the Supreme Court much earlier in Oposa interpreted theconstitutional provisions embodying these rights, based on theirhistorical context recognizing that such rights has been in existencefrom the ―inception of mankind‖. This is also a recognition that theright to health, based on its historical context, is as important as therights protected under the Bill of Rights, and as such, should be giventhe same efficacy.

93. Moreover, the same provisions in the PhilippineConstitution, with special emphasis on the right to health, shouldlikewise be interpreted in its social context - to reiterate, the right to

41 Case CCT 8/02, July 5, 2002


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health has been in existence from the ―inception of mankind‖, andthat the constitutional provision embodying this right did not create it,but merely recognized its existence.

94. The inclusion of this pre-existing right in the PhilippineConstitution will be better understood by looking at its social context,in the same manner that the Constitutional Court of South Africainterpreted their Constitutional provisions on economic socio-culturalrights. In this way, we will be able to appreciate the nature, extent andbasis of such right to health.

95. At the time of the enactment and approval of the 1987Philippine Constitution, the same social iniquities plaguing South

Africa, also pervaded Philippine society. It is for this reason that the

various economic socio-cultural rights were embodied in the 1987Constitution, in addition to the constitutional safeguards on the civiland political rights of the people.

96. It is also for this reason that the right to health was includedin the Declaration of Principles and in the Social Justice provisions.The inclusion of these provisions, which may initially be seen as to benot totally necessary, was to ensure that even the right to health ofthe poor and the marginalized is amply protected, ensuring themaccess to affordable and quality health and medical services.

97. The rulings in the Grootboom and the Ministry of Health,et al. vs. Treatment Action Team, et al. cases involve theinterpretation of Sections 2642 and 2743, Chapter 2 of the 1997

42 26. Housing.-( 1) Everyone has the right to have access to adequatehousing.

(2) The state must take reasonable legislative and other measures, withinits available resources, to achieve the progressive realisation of this right.

(3) No one may be evicted from their home, or have their homedemolished, without an order of court made after considering all therelevant circumstances. No legislation may permit arbitrary evictions.

43 27. Health care, food, water and social security.-

(1) Everyone has the right to have access to-

(a) health care services, including reproductive health care;

(b) sufficient food and water; and

(c) social security, including, if they are unable to support themselvesand their dependants, appropriate social assistance.


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Constitution of South Africa. A distinction was made between theright to access as covered by the first subsections of the twoconstitutional provisions, and the obligations of the Government toprovide the same as governed by the subsections of the saidprovisions, where the limitations were provided.

98. A perusal of the Philippine aforecited constitutionalprovisions on the right to health reveals that there is no provisionwhich is similar to Section 26 (2) and Section 27 (2) of the South

African Constitution subjecting the enforcement of the rights thereincontingent or fixed to the available resources of the Government.

99. Therefore, absent such similar or parallel provisions in the

Philippine Constitution, applying the ruling in the above-cited cases,the exercise of the right to health and the corresponding obligation ofthe Philippine Government to afford such rights to its citizens is notsubject to any limitation. What is clear in the said provisions of thePhilippine Constitution is that the State is duty-bound to ensure thatadequate and affordable health/medical and social services areavailable and accessible.

100. As things stand, in many communities in the Philippines,the problem is not only access to health and medical services, but thevery absence of such basic social services that should be provided bythe Government. In many instances, many have died, and many aredying, either due to the absence of medical and/or health services orbecause they cannot afford one. Surely, the provisions on the right tohealth were incorporated in the 1987 Constitution for a reason,coming as it does from the ashes of the kleptocratic dictatorship thathas brought so much suffering to the common people. Definitely, it isnot for the purpose of merely stating in a platitudinous tone that thereexists such a right.

101. Contextually, the said right to health was incorporated inthe 1987 Constitution not only for the purpose of recognizing theexistence of such right, but also to ensure that health and medicalservices are made available to its citizens, especially the poor andthe marginalized in recognition that they have a right to health to beadvanced and protected by the Government.

102. The purposes for the inclusion of the right in the 1987Constitution will be put to naught if our courts refuse or fail to afford

(2) The state must take reasonable legislative and other measures, withinits available resources, to achieve the progressive realisation of each ofthese rights.


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the people the remedy for the enforcement of this right, and tocompel the Government to advance and protect this right.

103. In his commentary on the ruling of the Constitutional Courtof South Africa, as well as the traditional doctrine on the non-enforceability of economic socio-cultural rights, former Chief JusticeReynato Puno succinctly pointed out that ―A right with no remedy isno right at all‖.44

104. Noting that the Supreme Court still adheres to the doctrineof non-justiciability and non-enforceability of economic socio-culturalrights, Chief Justice Puno lamented that:

―Even while they are embedded in the Constitution, they areno better than paper rights because they [the people] cannot go toany government authority, they cannot go to the legislature, theycannot go to the executive, they cannot go to the Supreme Courtand demand that their socioeconomic rights be implemented,‖

105. Chief Justice Puno emphasized the need to re-examinethis adherence to the prevailing doctrine taking into consideeedinglymore impration the new trend of interpretation as ruled in theGrootboom and the Ministry of Health Cases rendered by the

Constitutional Court of South Africa and the decision in theMazdoorsamity case of the Supreme Court of India.

106. The Petitioners humbly submit that there is indeed a needto take a second at the traditional adherence to this doctrine of non-

justiciability of economic socio-cultural rights, not simply to align withthe aforesaid decisions of the Constitutional Court of South Africa andthe Supreme Court of India and the other jurisdictions who adoptedthis new interpretation, but exceedingly more importantly becausethis progressive interpretation, as compared to the traditional, is in

conformity with the rule of justice, and would properly and effectivelyimplement the constitutional mandate for the protection of theserights.

44 Address delivered on July 6, 2013 before the General Assembly of theNCR Chapter of the National Union of Peoples’ Lawyers (NUPL), BalayKalinaw, UP Diliman, Quezon City.

See Salaverria, Leila. Filipinos must demand rights to health, housing,education, says ex-CJ Puno , Philippine Daily Inquirer, July 7, 2013.Available at http://newsinfo.inquirer.net/439767/filipinos-must-demand-rights-to-health-housing-education-says-ex-cj-puno, lastaccessed January 29, 2014.

http://newsinfo.inquirer.net/439767/filipinos-must-demand-rights-to-health-housing-education-says-ex-cj-punohttp://newsinfo.inquirer.net/439767/filipinos-must-demand-rights-to-health-housing-education-says-ex-cj-punohttp://newsinfo.inquirer.net/439767/filipinos-must-demand-rights-to-health-housing-education-says-ex-cj-punohttp://newsinfo.inquirer.net/439767/filipinos-must-demand-rights-to-health-housing-education-says-ex-cj-punohttp://newsinfo.inquirer.net/439767/filipinos-must-demand-rights-to-health-housing-education-says-ex-cj-puno


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107. It must be stated that this Petition is questioning an actthat further limits the already limited access of the poor and themarginalized to basic health and medical services. The privatizationof the Philippine Orthopedic Center will result in the reduction of thepeople‘s right to access to medical/health services, especially thosewho are need of the specialty being offered by the POC.

108. In the first place, the establishment and operation ofGovernment hospitals, including the POC, are essential in theGovernment‘s compliance with the constitutional mandate to ensurethe right to health of its citizens by providing adequate and affordablehealth, medical and social services.

109. Surely, there is a need to address the enforceability of thisright in the light of the fact that a vast majority of the Filipinos have noaccess to basic health and medical services. To decide otherwise willbe tantamount to the abandonment of the right of the people whoregard the judiciary as the supposed final bastion for the protection oftheir rights. This will aggravate the disillusionment of the people whofeel to have been abandoned of not betrayed by the PublicRespondents.

110. This Honorable Court has already provided the opening forthe relaxation of its policies as regards the demandability or

justiciability of the right to health as it ruled in Oposa. It should furtherbe encouraged by the developing trend in other jurisdictions that arenow giving paramount consideration to the health and welfare of itspeople over the stringent rule on justiciability of economic socio-cultural rights.

111. Petitioners implor

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