Complaint for Injunction: Student Regent Banez vs Roman & BOR Allies

Posted on February 22, 2010

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FOR: INJUNCTION WITH PRAYER FOR ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER.


CHARISSE BERNADINE I. BAÑEZ,

Plaintiff,

– versus –

THE BOARD OF REGENTS OF THE UNIVERSITY OF THE PHILIPPINES,

EMMANUEL Y. ANGELES, Chairman,

EMERLINDA R. ROMAN, President and Co-Chairperson,

ABRAHAM F. SARMIENTO, Regent,

NELIA T. GONZALEZ, Regent,

FRANCIS C. CHUA, Regent,

and ALFREDO E. PASCUAL, Alumni Regent.

Defendants.

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EXCERPTS FROM THE

COMPLAINT FOR INJUNCTION (WITH PRAYER FOR ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER)

III       CAUSE OF ACTION

PERMANENT INJUNCTION AGAINST THE IMPLEMENTATION OF THE RESOLUTION OF THE BOARD OF REGENTS ADOPTED IN ITS 1253RD MEETING HELD ON JANUARY 29, 2010 DISALLOWING STUDENT REGENT BAÑEZ FROM PARTICIPATING IN, AND VOTING, IN THE MEETINGS OF THE BOARD OF REGENTS

A. The Resolution of the Board of Regents disallowing Student Regent Bañez from participating in, and voting, in the meetings of the Board of Regents is invalid because there was no quorum in the 1253rd meeting of the Board of Regents held on January 29, 2010 and the votes cast therein were invalid.

3.1       The Board of Regents is composed of eleven (11) members ….

3.3       In the 1253rd meeting of the Board of Regents held on January 29, 2010, there were nine (9) members of the Board of Regents who were present, namely: Chairman Angeles, President Roman, Regent Sarmiento, Regent Gonzalez, Regent Chua, Regent Pascual, Regent Taguiwalo, Regent Bañez and Regent Cabrera.

3.4       Of these nine (9) members of the Board of Regents, there are three (3) Regents with expired terms, namely: Regent Sarmiento, Regent Gonzalez and Regent Chua.

3.6       Regent Sarmiento was appointed by the President as an “ACTING MEMBER, BOARD OF REGENTS, UNIVERSITY OF THE PHILIPPINES SYSTEM” on September 29, 2008. Attached hereto as Annex “M” is a copy of the written appointment of Regent Sarmiento.

3.7       Regent Gonzalez was appointed by the President as an  “ACTING MEMBER, BOARD OF REGENTS, UNIVERSITY OF THE PHILIPPINES SYSTEM” on March 18, 2008. Attached hereto as Annex “N” is a copy of the written appointment of Regent Gonzalez..

3.8       Regent Chua was appointed by the President as an “ACTING MEMBER, BOARD OF REGENTS, UNIVERSITY OF THE PHILIPPINES SYSTEM”  on January 1, 2008. Attached hereto as Annex “O” is a copy of the written appointment paper of Regent Chua.

3.9       Sections 16 and 17, Chapter 5, Title I, Book III of EO 292 (Administrative Code of 1987) states:

“SEC. 16. Power of Appointment. — The President shall exercise the power to appoint such officials as provided for in the Constitution and laws.

SEC. 17.  Power to Issue Temporary Designation. — (1) The President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch, appointment to which is vested in him by law, when: (a) the officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or (b) there exists a vacancy;

(2)  The person designated shall receive the compensation attached to the position, unless he is already in the government service in which case he shall receive only such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the position filled. The compensation hereby authorized shall be paid out of the funds appropriated for the office or agency concerned.

(3) In no case shall a temporary designation exceed one (1) year.” (Emphasis supplied)

3.10    Based on the afore-quoted provision of the Administrative Code, it is clear that the appointments of Regents Sarmiento, Gonzalez and Chua as members of the Board of Regents in an acting capacity expired after twelve (12) months from the dates of their appointment. By the time the Board of Regents held its 1253rd meeting on January 29, 2010, their appointments have already expired and the aforementioned individuals no longer have the authority to act as Regents. A valid presidential appointment is a condition sine qua non before the foregoing individuals may qualify and exercise the office of Regent to the Board of Regents.

3.11    Moreover, the UP Charter of 2008 now requires that the appointment of Regents to the Board of Regents should be made the President of the Philippines, “considering the recommendation of the Board.”  To date, no such recommendation has been made by the Board of Regents.

3.12    For the purpose of determining attendance and quorum in the 1253rd meeting of the Board of Regents, only six (6) Regents should be counted, namely: Chairman Angeles, President Roman, Alumni Regent Pascual, Faculty Regent Taguiwalo, Staff Regent Cabrera and Student Regent Bañez.

3.13    When Regents Taguiwalo, Cabrera and Bañez left the meeting, there were only three (3) Regents in good standing who were left, namely: Chairman Angeles, President Roman and Alumni Regent Pascual. Thus, it is clear that when the motion was put to a vote, there was no longer a valid quorum for the meeting. Moreover, the votes cast by Regents Sarmiento, Gonzalez and Chua were invalid votes because their terms as Regents have already expired after twelve (12) months from the dates of their appointments as acting members of the Board of Regents.

B.  Even if the presence of Regents Sarmiento, Gonzalez and Chua were counted for the purpose of determining quorum, still, there was no quorum when the motion on the status of the Student Regent was voted upon because Regent Pascual was inside the toilet when the actual voting took place.

3.15    Contrary to what is reflected in the draft minutes of the 1253rd meeting of the Board of Regents that Regent Pascual was present in the meeting when the motion and voting on the status of the Student Regent took place, the truth of the matter is that Regent Pascual went to the toilet before the motion was made and put to a vote. Upon his return to the meeting, he was surprised to find out that the motion and voting has already taken place in his absence.

3.16    There were only five (5) members of the Board of Regents who were present when the motion and voting on the status of the Student took place, namely: Chairman Angeles, President Roman, Regent Sarmiento, Regent Gonzalez and Regent Chua. Clearly, there was no valid quorum of six (6) when the motion and voting on the status of the Student Regent took place.

3.17    Thus, the resolution of the Board of Regents to disallow Student Regent Bañez to participate in, and vote, in meetings of the Board of Regents “approved” in the 1253rd meeting of the Board of Regents held on January 29, 2010 should be declared invalid and with no force and effect. The Board of Regents should also be permanently enjoined from implementing this resolution.

C.  The plaintiff is, and remains to be, a bona fide student of the University of the Philippines.

3.31    There is likewise no valid reason for the Chancellor of UP Los Baños to deny the plaintiff’s application for residency. Although filed late, plaintiff’s application for residency was filed for the sole purpose of enabling her to continue to discharge her functions as Student Regent. Plaintiff’s inability to file her application for residency during the regular registration period for the Second Semester of Academic Year 2009-2010 is a mere procedural impediment that cannot be used to deny the substantial rights of the plaintiff as Student Regent representing all of the students of the University of the Philippines in the Board of Regents. The approval of the plaintiff’s application for residency should not be unreasonably denied nor withheld by the Chancellor of UP Los Baños because to do so would constitute a substantial violation of the right of representation of all UP students in the Board of Regents.

D.        At the very least, the plaintiff is a de facto officer who can be ousted from office only through a quo warranto proceeding.

3.34    The de facto doctrine “is the principle which holds that a person who, by the proper authority, is admitted and sworn into office is deemed to be rightfully in such office until by judicial declaration in a proper proceeding, he is ousted therefrom, or his admission thereto is declared void.” [De Leon and De Leon, Jr., The Law on Public Officers and Election Law, p. 102 (1994 edition), citing 63A Am. Jur. 2d 1081]

3.35    The elements of de facto officership is as follows: (a) there must be a de jure office; (b) there must be a color of right or general acquiescence by the public; and there must be actual physical possession of the office in good faith. (Ibid., pp. 107-108)

3.36    There is a de jure office – that of the office of the Student Regent created under Republic Act No. 9500 otherwise known as “The University of the Philippines Charter of 2008.”

3.37    There is a color of right and general acquiescence by the Board of Regents to the plaintiff’s exercise of the office of the Student Regent.

3.37.1   The plaintiff was elected as Student Regent by the UP students from their ranks in accordance with the University of the Philippines System “Codified Rules for Student Regent Selection” for a fixed term of one year beginning on July 31, 2009.

3.37.2   The plaintiff has a pending application for residency that has not yet been acted upon by UP Los Baños Chancellor Velasco.

3.37.3   In the 1252nd meeting of the Board of Regents held on December 18, 2009, the status of the plaintiff as the Student Regent was submitted to a vote. It was resolved in the said meeting that “Student Regent Bañez continues to sit as a regular member of the Board until the issue on enrollment is settled.”

3.38    The plaintiff is also in actual possession of the office of the Student Regent in good faith.

3.38.1 It is only the plaintiff who is in actual possession of the office of the Student Regent. There is no second or third select nominee that can take her place as Student Regent.

3.38.2 The plaintiff never hid her status as a student. Her application for residency is known to the UP Administration. In fact, as early as December 10, 2009 as shown by Annex “D” (the letter dated December 10, 2009 of Dr. Asuncion K. Raymundo, Dean of the College of Arts and Sciences, addressed to UP Los Baños Chancellor Velasco) the UP Los Baños Administration has already been assiduously monitoring the status of the plaintiff as a student. Moreover, in the 1252nd and 1253rd meetings of the Board of Regents, the plaintiff informed the Board of her actual status as a student. She continued to discharge her function as Student Regent on the firm belief that should her application for residency be granted by Chancellor Velasco, then all objections to her status as Student Regent would be mooted. She likewise relied in good faith in the resolution of the Board of Regents adopted in its 1252nd meeting held on December 18, 2009 that she is allowed “to sit as a regular member of the Board until the issue on enrollment is resolved.” Certainly, the plaintiff has established her good faith in this respect.

3.39    Being a de facto officer, the plaintiff cannot be removed from her office as Student Regent by a mere vote by the Board of Regents.

3.40    In the first place, the plaintiff’s status as a Student Regent was already settled in the 1252nd meeting of the Board of Regents where she was allowed “to sit as a regular member of the Board until the issue on enrollment is resolved.” Since this decision was not acceptable with the minority in said meeting (three of whom voted without a valid appointment as Regents), these Regents moved heaven and earth in the 1253rd meeting of the Board of Regents in order to illegally reverse said resolution of the Board of Regents.

3.41    In the second place, while the Board of Regents is authorized by the UP Charter of 2008 to “prescribe rules for its own government”, as of the 1253rd meeting of the Board of Regents held on January 29, 2010, there were no existing rules nor policies of the Board of Regents concerning: (a) the declaration of vacancy in the Board of Regents; and (b) ouster of a member of the Board of Regents. In the absence of said internal rules and policies, the Board of Regents is without jurisdiction to determine whether or not the plaintiff is legally holding her office as Student Regent. This being a legal issue, the same can only be validly raised before the courts in a quo warranto proceeding.

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