Mandatory Appearance of Applicants in Hearings of LTFRB Franchises (Part 3)

The two (2) other issues in my first article on the subject in which I said I will subsequently discuss, are the following:

1) Whether or not the Hearing Officer Designate [Mr. Gregorio Retuta] should rely and allow the practicing lawyers in the LTFRB-CAR to dictate the procedures they want to be followed in the hearings [of CPC applications or cases]; and

2) Whether or not the Regional Director may validly issue the Certificate of Public Convenience or franchises based on the non-observance by the Hearing Officer of the rules and procedures prescribed by the Board en banc.

On these two issues, just like in the first I took the negative position for the reasons that:

Firstly, not being the Board who is the only entity authorized to exempt itself from the rules (Sec. 2, Rule 1 of the 2011 Revised Rules of Practice and Procedures Before the LTFRB), Mr. Retuta who obviously is not the Board referred to in the Rules and not even a member of the Bar but designated to hear uncontested and intra-regional cases in the absence of available lawyer Hearing Officer in the DOTC-CAR, is without authority and is not privileged to exercise discretion to deviate and exempt himself from any provisions of these Rules. His duty and function in the hearings of CPC cases is confined to the so-called “reception of evidence” which need to be validated by a lawyer duly appointed or designated as Hearing Officer (like Atty. Nullar who was previously borrowed from LTFRB Region 1).

Secondly, though not a lawyer but designated as Hearing Officer he has nevertheless the duty and function to control the proceedings and observing in the process the rules or procedures mandated under the Rules of the Board. In so performing that rule he should not rely or apply other procedures dictated to him by counsels in deviation from the clear language of the provisions of the Rules. In the event he has doubt in the application of any provisions of the Rules, Mr. Retuta is obliged to consult or secure clarification from the Board or the Regional Director, not from the counsels who are espousing different procedures for their own or their clients interest and convenience.

Thirdly, it is my view that the Regional Director of DOTC-CAR may not validly issue or grants Certificates of Public Convenience or franchises if the proceedings under which they are issued are in blatant violation of the rules. For, similarly as the Rules of Court, the Rules of Practice and Procedures Before the LTFRB was promulgated by the Board en banc to “govern pleadings, practice and procedures Before the Board in all matters of hearing, investigation and proceeding” as a quasi-judicial agency. These Rules, like the Rules of Court, has the weight of law and is necessary and indispensable in the effective operation of the Board. Thus, just like Judges of the Court whose decisions may be invalidated for grave abuse of discretion or authority in the application of the provisions of the Rules of Court, the Decision or Certificate of Public Convenience issued by Regional Directors (or even the Board en banc itself) may also be invalidated for non-observance or grave abuse of discretion in the application of the Rules of Practice and Procedures Before the LTFRB.

Lastly, there is no reason or basis, why in the first place the practicing lawyers should be advising or dictating procedures to the Hearing Officer based on their interpretation of the Rules since as lawyers they know the principle in statutory construction (while the non-lawyer Hearing Officer does not) that the duty of the Board (not the Hearing Officers) or the Court is to apply the rules or the law and interpret only when the meaning of the rules or the law may not be understood without interpreting it. Otherwise put, “construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them” (Lizarraga Hermanos vs. Yap Tico, 24 Phils. 513.). Unfortunately, the Hearing Officer is deprived of that privilege to interpret.

In the case of the rules under Rule 8 being debated upon by and among counsels and Hearing Officer, which read:

“Section 6- Hearing; Appearance of Applicant and Counsel- During the hearing, whenever applicable, the applicant shall personally appear and be assisted by counsel of choice.

In case of individual applications, only members of the applicant’s immediate members of the family shall be allowed as representatives upon presentation of the necessary Special Power of Attorney and representative’s identification documents. Immediate family member shall mean the applicant’s spouse, children, father or mother.”

“Section 7. Failure to Appear – If the applicant or the duly authorized representative and counsel fail to appear on the initial scheduled hearing, the case shall be reset to another date…”

The language of the Rules above cited are clear and adequate, hence, there is no need for construction and interpretation. Therefore, in adopting different procedures thereby supplanting the procedures mandated under the foregoing rules, as what is now happening in the Regional Franchising Board, the Hearing Officer Designate, Mr. Gregorio Retuta is committing grave abuse of duty and function.