Republic of the Philippines SUPREME COURT OF THE PHILIPPINES Manila

Daisy Joy Rojallo Cervantes, Basilio Dayson Manjares, Jay-R Medinilla Ladub, Armando Mamarin De Guzman, indigent patients at the PHILIPPINE ORTHOPEDIC CENTER; Sean Herbert Velchez RN, Dante A. Perez, Ricardo Antonio, Minnelie I. Cagara, RN, and Valentin Abalos Arciaga, of the NATIONAL ORTHOPEDIC HOSPITAL WORKERS UNIONALLIANCE OF HEALTH WORKERS (NOHWUAHW); Fresco Bascara Yapendon, MD; Amelia Mangay Maglacas, RN; Jossel I. Ebesate, RN, ALLIANCE OF HEALTH WORKERS; Cecilia M. Laurente, RN, of the NETWORK OPPOSED TO PRIVATIZATION OF PUBLIC HOSPITALS AND HEALTH SERVICES (NOP); Eleanor A. Jara, MD, COUNCIL FOR HEALTH AND DEVELOPMENT; Darby E. Santiago, MD, HEALTH ALLIANCE FOR DEMOCRACY; Edelina P. dela Paz, MD, PEOPLES HEALTH MOVEMENT; 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 BAYAN COMMUNITY HEALTH NURSES ASSOCIATION; Saturnino C. Ocampo, MAKABAYAN; Joan May E. Salvador, GABRIELA ALLIANCE OF WOMEN; Gloria Arellano, KALIPUNAN NG DAMAYAN NG MAHIHIRAP (KADAMAY); Elmer Labog, KILUSANG MAYO UNO; BAYAN MUNA Rep. Neri Javier Colmenares and Rep. Isagani Carlos Zarate; and KABATAAN PARTYLIST Rep. Terry Ridon, Petitioners, versus

For: Certiorari and Prohibition with Application for the Issuance of a Writ of

Preliminary Injunction and/or Temporary Restraining Order

H.E. Benigno Simeon Aquino III, CHAIRPERSON of the NATIONAL ECONOMIC DEVELOPMENT AUTHORITY; Hon. Enrique T. Ona, SECRETARY OF DEPARTMENT OF HEALTH; Hon. Teodoro J. Herbosa, UNDERSECRETARY, DOH HEAD, MPOCPBAC; Cosette C. Canilao, EXECUTIVE DIRECTOR OF THE PUBLIC PRIVATE PARTNERSHIP CENTER; Jan Irish P. Villegas, PROJECT MANAGER, MODERNIZATION OF THE PHILIPPINE ORTHOPEDIC CENTER; Arsenio M. Balisacan, DIRECTOR GENERAL AND VICE CHAIRMAN OF THE NATIONAL ECONOMIC DEVELOPMENT AUTHORITY; Cesar V. Purisima, CHAIR OF THE NEDAINVESTMENT COORDINATING COMMITTEE (ICC); and CONSORTIUM OF MEGAWIDE CONSTRUCTION CORPORATION AND WORLD CITI MEDICAL CENTER, represented by Manuel Louie B. Ferrer, Respondents. x----------------------------------------------------------------x

PETITION
for

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 precious attention. But if one believes that wealth must be subordinated to health, especially of the dying destitutes, those who have never seen hospitals or doctors or nurses in their lives, in whose lives executive check-up is only for the rich and famous, where blood letting is for the next employment as security guards, masons, janitor, waiters, waitresses, then this Petition and what it is fighting for deserve more days in this Court. These people will not just lie there and die there.

Petitioners, by counsel, respectfully aver: The States responsibility is to provide and ensure a basic social service such as health based on the peoples constitutional right to health and to free medical care and access to affordable health services. Such duty should not be relinquished to a private entity through privatization or commercialization of a government hospital to the prejudice of the poor and underprivileged.

NATURE OF THE PETITION

1. This is an original action for CERTIORARI and PROHIBITION under Rule 65 of the Rules of Court with an application for the issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order (TRO) seeking to: ANNUL and SET ASIDE the Decision of the Public Respondents to privatize or commercialize the Philippine Orthopedic Center (hereinafter POC); ANNUL and SET ASIDE the award by the Public Respondents of the so-called Modernization of the Philippine Orthopedic Center to Private Respondents Megawide Construction Corp. (Megawide) and World Citi, Inc; and to

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PROHIBIT and ORDER the Public Respondents to desist from further proceeding in the building, operation and transfer of the Philippine Orthopedic Center to said Private Respondents. 2. Petitioners availed of this remedy because the Public Respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction in the commission of the said acts sought to be prohibited and enjoined. Moreover, under the circumstances obtaining, Petitioners cannot avail of the remedy of appeal and have no other plain, speedy, and adequate remedy in the ordinary course of law, which will promptly relieve them from the injurious effects of the acts of the Public and Private Respondents. 3. This is both a suit by those directly affected by the actions of Respondents, as well as a citizens and taxpayers suit. More fundamentally, Petitioners posit this is a public interest suit, where the people are considered the real parties-in-interest. 4. This Petition raises novel questions because it involves at first impression the fundamental question of whether the States responsibility to provide and ensure a basic social service such as health could be relinquished to a private entity through privatization or commercialization of a government hospital to the prejudice of the poor and underprivileged. 5. Differently stated, can the peoples basic constitutional right to health and equitable access to free medical care and affordable health services be prejudiced by the States abandonment of its duty through privatization and commercialization of a government hospital that mainly caters to the poor and underprivileged as a public service in 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 Requirements1 for the so-called
An electronic copy downloaded from the Public-Private Partnership Center (PPP) website is hereto attached as Annex A and made an integral part hereof. Available at http://ppp.gov.ph/wpcontent/uploads/2013/12/MPOC NOA-06Dec2013.pdf last accessed January 30, 2014.
1

The Public Respondents, through the Office of the Secretary of the Department of Health, have merely referred Petitioners to this website Page 4 of 62

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

THE PARTIES
7. The Petitioners are Filipino citizens, of legal age, residents of the Philippines, and may be served with legal processes of this Honorable Court through undersigned counsel at 3rd Floor, Erythrina Building, No. 1 Maaralin cor. Matatag Streets, Central District, Diliman, Quezon City:

a. Daisy Joy Rojallo Cervantes, 37 years old, an indigent patient at the POC, diagnosed with old spinal cord injury including sacrolumbar T12, second degree compression, fracture L1 vertebra secondary to fall, pressure sore sacral area and presently confined at the Spinal Ward since November 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 indigent patient at the POC, diagnosed with old spinal cord injury, complete sensory level T12 secondary to fracture dislocation, L1 L2 secondary to motorcycle vehicular accident and first confined on December 15, 2006 and presently confined at the Spinal Ward since August 12, 2013 and continues to be confined thereat, with address at 28 Malino Homes, 2 Salitan Camarines, Cavite City; c. Jay-R Medinilla Ladub, 31 years old, an indigent patient at the POC, diagnosed with spinal cord injury, complete, S2, C6 secondary to crushing injury and presently confined at the Spinal Ward since November 15, 2012 and continues to be confined thereat, with address at Purok 4, Bagong Bayan, 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 up to the time of filing of this Petition.

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left inferior gluteal area and presently confined at the Spinal Ward since January 17, 2013 and continues to be confined thereat, with address at Paraiso St., Barangay San Agustin, Novaliches, Quezon City; e. Sean Herbert Velchez RN, is a staff nurse at the POC for five (5) years since March 2008 up to the present and President of the National Orthopedic Hospital Workers Union-Alliance of Health Workers (hereinafter NOHWUAHW) with address at c/o POC, Ma. Clara St. cor. Banawe St., Quezon City; f. Dante A. Perez, is a physical therapist at the POC for sixteen (16) years up to the present and Vice-President of NOHWU-AHW with address at 1915-C Maria Orosa, Malate, Manila; g. Ricardo Antonio, is an employee at the POC Dietary Department for almost twenty-six (26) years since August 1988 and PRO of NOHWU-AHW, with address at c/o Dietary Dept., 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 member of 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 for thirteen (13) years since October 2001 up to the present and 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 President of 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 the World 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 Health Workers (AHW) with address at Room 603 Web-Jet Building, 64 Quezon Avenue cor. BMA Avenue, Quezon City;

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m. Cecilia M. Laurente, RN, PhD. former dean of the University of the Philippines (UP) College of Nursing, convenor of the Network Opposed to Privatization of Public Hospitals and Health Services (NOP) with address at Room 307 Casa Rafael, 1223 Quezon Avenue, Quezon City; n. Eleanor A. Jara, MD, Executive Director of the Council for Health and Development (CHD), with address at No. 8 Mines Street, Barangay Vasra, Quezon City; o. Darby E. Santiago, MD, Chairperson of the Health Alliance for Democracy (HEAD), with address at Room 307 Casa Rafael, 1223 Quezon Avenue, Quezon City; p. Edelina P. Dela Paz, MD, Country Coordinator of Peoples Health Movement-Philippines, with address at UP-Manila, Social Medicine Unit, College of Medicine; q. Joseph M. Carabeo, MD, Chairperson of the Community Medicine Practitioners and Advocates Association (COMPASS), with address at Room 403 Jaime Cardinal Sin Building, Pedro Gil, Paco, Manila; r. Reginald Pamugas, MD, Secretary-General of Health Action for Human Rights with address at Room 307 Casa Rafael, 1223 Quezon Avenue, Quezon City; s. Eleanor M. Nolasco, RN, founding President of Nars ng Bayan Community Health Nurses Association, with address at No. 8 Hyacinth Street, Roxas District, Quezon City; t. Saturnino C. Ocampo, President of MAKABAYAN, with address 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 Scout Delgado, Quezon City; v. Gloria Arellano, Chairperson of Kalipunan ng Damayan ng Mahihirap (KADAMAY), with address at No. 12-A Kasiyahan Street, Don Antonio Heights, Barangay Holy Spirit, 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 Narra Street, Barangay Claro, Project 3, Quezon City; x. Hon. Neri Javier Colmenares, Bayan Muna Partylist Representative and concurrently President of the National Union of Peoples Lawyers (NUPL), with office address at House of Representatives, Batasang Pambansa Complex, Quezon City; y. Hon. Carlos Isagani Zarate, Bayan Muna Partylist Representative and concurrently Adviser of the NUPL, with office address at House of Representatives, Batasang Pambansa Complex, Quezon City; and z. Hon. James Mark Terry Ridon, Kabataan Partylist Representative and concurrently member of the NUPL, with office address at House of Representatives, Batasang Pambansa 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 Chairman of the National Economic Development Authority (hereinafter NEDA) and concurrently President of the Republic of the Philippines, may be served with legal processes at Malacaang Palace, Manila; b. Enrique T. Ona, MD., in his capacity as Secretary of the Department of Health (hereinafter DOH), may be served with 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 the Modernization of the Philippine Orthopedic Center Prequalification, Bids and Awards Committee (hereinafter MPOC-PBAC), may be served with legal processes at DOH, San Lazaro Compound, Rizal Avenue, Manila; d. Cosette C. Canilao, in her capacity as Executive Director of the Public Private Partnership Center (PPC), may be served 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, may be served with legal processes at NEDA sa QC, EDSA, Diliman, Quezon City 1103; f. Arsenio M. Balisacan, in his capacity as Director General and Vice Chairman of the National Economic Development Authority (NEDA), may be served with legal processes at St. Josemaria Escriva Drive, Ortigas Center, Pasig City 1605; g. Cesar V. Purisima, in his capacity as Chairman of the NEDA-Investment Coordinating Committee (ICC), and concurrently Finance Secretary, may be served with legal processes 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 Manuel Louie 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 as they will suffer, as current patients and employees of the Philippine Orthopedic Center (POC), actually or imminently, direct and substantial injury from the impending privatization of the said hospital. The transfer of operational and management affairs to a private entity has serious and adverse effects on service fees and rates imposed upon patients current and future, and on terms, conditions, and relations with POC employees current and future. 10. All petitioners, particularly those in the health profession who are directly involved in providing health services, invoke actual and direct interest i.e. a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result2 and as taxpayers3 and citizens in the rendition of health services by
See for instance, People v. Vera (G.R. No. L-45685, November 16, 1937).
2

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

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the State particularly with respect to the ownership, operations and maintenance of a public or government hospital.4 10.1. The privatization of the POC involves public funds and affects public sovereign, not simply proprietary, functions. Petitioners have filed this petition on their own behalf and on behalf of the public who are and will be directly affected by the privatization of the countrys premier orthopedic hospital. 10.2. As taxpayers they have a clear interest in the disbursement of public funds not only with respect to the future public lot allocated to the envisioned modernized POC, but also the public expenditures for the whole process of bidding and contracting. In addition, the government will extend operations and management support or subsidy to the winning bidder which would involve public funds.5 11. Moreover, in public interest cases such as the instant Petition, standing should be reckoned, not in terms of "injury in fact" but in terms of "public right6. "Public interest" has since been defined as "public interest in the rule of law7. Petitioners thence submit to the sound discretion of the Court; as in the final analysis, it is for the courts to determine on a case to case basis whether the matter at issue is of interest or importance, as it relates to or affects the 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 when only municipal contracts are involved (Bugnay Construction and Development Corporation v. Laron, 176 SCRA. 240 [1989]). Tolentino v. Secretary of Finance (G.R. No. 115455, August 25, 1994) holds: We accept that this Court does not only adjudicate private cases; that public actions by "non-Hohfeldian" or ideological plaintiffs are now cognizable provided they meet the standing requirement of the Constitution; that under Art. VIII, Sec. 1, par. 2. the Court has a "special function" of vindicating constitutional rights.
4

MPOC Bid Bulletin No. 12, page 2, citing Section 23 of the draft BOT Agreement 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., last accessed January 30, 2014.
5 6 7 8

Severino v. Governor-General, GR No. 6250, August 3, 1910. Kilosbayan v. Guingona, GR No. 113375, May 5, 1994.

Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987. Page 10 of 62

public rights particularly one with far-reaching implications such as this, the people are regarded as the real party in interest.9 12. Additionally, Petitioner-legislators seek recourse from the courts because an act of the Executive commercializing the State duty to provide accessible and affordable health care contrary to the Constitution injures the institution of Congress and causes a derivative but nonetheless substantial injury. It has been recognized that a member of the Legislature has the requisite personality to bring a suit where a constitutional issue is raised.10 13. Notably too, Petitioners do not have any practical available administrative remedies before filing the instant Petition. On top of several dialogues with Public Respondents Department of Health Secretary Enrique Ona and Undersecretary Teodoro Herbosa over time, they have undertaken all available steps to question the complained acts, including: a. In late 2012, Petitioners through the Network Opposed to the Privatization of Public Hospitals and Health Services (hereinafter NOP) made an Open Letter to the Public Respondent President Benigno S. Aquino III to Stop the Privatization of Public Health Care and Services11. The NOP raised concerns regarding the fast-tracking of the privatization of government hospitals and services which will be run like big business entities and that the poor will be deprived of access to essential health services. Among those specifically mentioned in the letter is the Public-Private Partnership (PPP) program covering the POC. b. In reply, Public Respondent Herbosa, Undersecretary of the Department of Health (hereinafter DOH) and head of the so-called Modernization of the Philippine Orthopedic Center Prequalification, Bids and Awards Committee (hereinafter MPOC-PBAC) sent a Letter12 to Petitioners dated 10 January 2013 claiming in a soporific mantra that the program aimed at modernizing and ensuring delivery of quality health service thru the Public-Private Partnership (hereinafter PPP) is not
9

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

See for instance, Gonzales v. Macaraig, G.R. No. 87636. November 19, 1990, citing Tolentino v. COMELEC, G.R. No. L-34150, 16 October 1961, 41 SCRA 702.
10 11 12

A copy is attached as Annex B and made an integral part hereof. A copy is attached as Annex C and made an integral part hereof. Page 11 of 62

privatization (i.e. sale of shares; transfer of ownership), hence the apprehensions mentioned in the letter are supposedly unfounded. c. On February 5, 2013, Petitioners through the NOP sent a 13 letter to Public Respondent Cosette Canilao, Executive Director of the PPP Center raising its concerns regarding the privatization of government hospitals, including the PPP Program for POC. They expressed their dismay to the intensifying privatization through PPP of public health care and services, to which Petitioners did not even get the benefit of a reply; d. Moreover, Petitioners through the NOP sent a letter14 to Public Respondent Ona, dated July 9, 2013, to register their opposition to the governments program of Public-Private Partnership like the Philippine Orthopedic Center, transforming government hospitals into corporations, outsourcing of equipment and provision of services by public hospitals. They also asked for an update on the MPOC PPP plan and the DOH plan on the clustering of the Jose Reyes, San Lazaro and Fabella government hospitals; e. Likewise, undersigned counsel for Petitioners sent a 15 letter to Public Respondent Ona dated July 10, 2013 requesting for the status, names of bidders, procedure, results, contract, timeframe, documents and information pertinent and relevant to the bidding and award process of the so-called Modernization of the POC; f. However, Public Respondent Herbosa merely replied in his letter16 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 responsive answers to the specific queries and merely justified the aims of the so-called modernization and invited the undersigned counsel for Petitioners to yet another meeting.

13 14 15

A copy is attached as Annex D and made an integral part hereof. A copy is attached as Annex E and made an integral part hereof.

A copy of which is attached as Annex F and made an integral part hereof.

16

A copy is attached as Annex G and made an integral part hereof. Page 12 of 62

14. At any rate, it is the humble submission of Petitioners that even if there were available administrative remedies, this Petition falls within the well-established exceptions to the customary rule of their exhaustion considering that the challenged administrative acts are patently illegal, amounting to lack of jurisdiction; that there is unreasonable delay or official inaction, even obstruction, that will irretrievably prejudice the Petitioners; that the questions involved are of transcendental importance and strong public interest is certainly involved.17 15. Thus, given the circumstances, Petitioners in the concrete have 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 Honorable Court invoking its concurrent jurisdiction and to adjudicate questions of law, given the paramount importance or transcendental significance of the issues involved, the magnitude of the actual and imminent injury, and the adverse effects of the questioned acts of Respondents that will prejudice not only the Petitioners but the public at large particularly the poor and underprivileged in our society.

STATEMENT OF FACTS
17. The Philippine Orthopedic Center (POC) is a DOH-retained hospital. It is the countrys only hospital specializing in orthopedic cases including spinal cord injury cases. 18. The mandated functions of the POC include: providing health and medical services on trauma, orthopedic rehabilitation and other related cases; training of medical graduates/undergraduates as well as paramedical undergraduates from affiliated schools, colleges and universities; and conducting basic and clinical research in the different specialties and administrative components of hospital operations.19

Republic of the Philippines vs. Lacap, G.R. No. 158252, March 2, 2007.
17 18 19

Ibid.

2010 COA Report POC Executive Summary. Available at . http://www.coa.gov.ph/2010_AAR/NGAs/ES/POC_ES2010.pdf, last accessed January 30, 2014. Page 13 of 62

19. The POC was originally located in Mandaluyong. Built by the Americans in 1945 as Philippine Civil Affairs Unit (PACU) No. 1, it was intended to take care of civilian casualties during the so-called liberation of Manila and its suburbs. 20. It was turned over to the Philippine Government and its name was changed to Mandaluyong Emergency Hospital and its functions were redirected to look after accident victims and orthopedic cases. The name was later changed to National Orthopedic Hospital in 1947. 21. The hospital was relocated to its present location in Banawe, Quezon City in 1963. It was originally a 500-bed capacity hospital. Its bed capacity was subsequently increased to 700 to respond to the orthopedic and rehabilitation demands of the increasing number of patients. 22. In 1982, Batas Pambansa 301was passed changing the name of the hospital from National Orthopedic Hospital to National Orthopedic Hospital and Rehabilitation Medicine Center. Its health programs were expanded and included activities complementary to orthopedic. 23. By virtue of Republic Act No. 678620 signed in November 29, 1989, the hospital is now called Philippine Orthopedic Center. 24. Over the years, the POC has been catering to mostly poor Filipinos 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 Private Partnership (PPP) as the supposed answer to how the government will finance social services expenditures. 26. Shortly thereafter, on November 18-19, 2010, Public Respondent Secretary Ona presented the PPP Projects for the Health Sector. First on the list of these PPP Projects is the POC.21

An Act Changing the Name of the National Orthopedic Hospital and Rehabilitation Medical Center in Quezon City to Philippine Orthopedic Center.
20

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

21

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27. The other PPP projects mentioned in the above-stated presentation of Public Respondent Sec. Ona are: a. Research Institute for Tropical Medicine: Local Production of Pentavalent Vaccine (DPT, HepaB and HiB); b. San Lazaro Hospital as the Premiere Research Center for Infectious Diseases; c. Establishment of a Multi-Specialty Center in Oncology, Neurosciences, and Stem Cell Research in DOH retained hospitals; 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 POC under the PPP is only the first among many on the chopping block. To reflect the thrust of the Aquino Administration in using PPP to finance health services, Public Respondent Sec. Ona issued Administrative Order No. 2010 0036 dated December 16, 2010. Entitled the Aquino Health Agenda: Achieving Universal Health Care for All Filipinos, the said Administrative Order identified public-private partnerships as a means to support the immediate repair, rehabilitation and construction of selected priority health facilities. 29. On September 18, 2012, the National Economic and Development Authority (NEDA) Board approved the DOHs project to modernize 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 in Health Manila 2012, the DOH showcased the proposed so-called Modernization of POC before prospective investors as the countrys first health project to be undertaken under the PPP program.23 31. On November 18, 2012, the MPOC PBAC headed by Public Respondent Undersecretary Herbosa issued the Invitation to Qualify

On Mending Broken Bones and the Modernization of the Philippine Orthopedic 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.
22

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

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and to Bid for the Modernization of the Philippine Orthopedic Center. 32. The project involves the construction of a 700-bed capacity super-specialty tertiary orthopedic hospital to be located within the National Kidney and Transplant Institute (NKTI) Compound along East Avenue, Quezon City. The concessionaire will design, build, finance, operate and maintain the facility until the end of the 25-year concession period, and then transfer the hospital to the DOH. 33. The estimated project cost: PHP 5.69 Billion ((PhP 5,069,000,000.00) or USD 132.33 Million.24 34. The Invitation to Qualify and to Bid - which is very telling as to the scope of the privatization and commercialization - reads in part:
The Department of Health (DOH) invites Prospective Bidders to apply to qualify and bid for the Modernization of the Philippine Orthopedic Center (MPOC) under the Public-Private Partnership Program through a Build-Operate-and Transfer scheme. The MPOC will involve the construction of a new hospital facility within the National Kidney Transplant Institute compound along East Avenue, Quezon City, Metro Manila, Philippines and will comprise the following: 1. Planning, design and construction of a minimum of 700-bed capacity super specialty tertiary hospital providing orthopedic clinical services and allied services; 2. Procurement, installation, management, operations and maintenance of modern diagnostic and clinical equipment; 3. Procurement, installation, management, operation and maintenance of IT facilities; 4. Operation and maintenance of the entire Facility including the diagnostic center, out-patient departments, in-patient department and all other activities related to the operation of the hospital; 5. Provision of appropriate administrative and auxillary services (clinical laboratory, imaging and radiology, sterile supplies, pharmacy) of advanced level that is commensurate with the specific clinical specialty practiced in tertiary care; 6. Provision of teaching and training facilities for basic and advanced clinical care and management by specialized and sub-specialized forms of treatment, highly specialized surgical procedure and intensive care, as well as care on the specific prevalent PPP Website. Available at http://ppp.gov.ph/?p=7686, last accessed January 31, 2014
24

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diseases in the locality pertaining to the specialty offered at the hospital. This inter-alia includes continuance of the existing residency training programs which include among others the Orthopedic Surgery Residency Training Program as accredited by the Philippine Board of Orthopedics which is currently being provided by the existing POC; and 7. Provision of appropriately qualified staff (medical, paramedical, nursing, support) The MPOC will be awarded through open competitive public bidding following the rules and procedures prescribed under the BOT 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, the Petitioners through their respective health organizations and their counsel have periodically raised in formal as well as informal ways through letters, dialogues, pickets and public statements their opposition to the privatization of public hospitals particularly the imminent bidding of the POC. But all in vain. 36. Meanwhile, the privatization-cum-modernization-cumcorporatization flea market roadshow went into full swing. On January 28, 2013, the MPOC-PBAC conducted the Pre-Bid Conference at the Lung Center of the Philippines Compound. The MPOC-PBAC announced nine (9) prospective bidders: 1) 2) 3) 4) 5) 6) 7) 8) 9) Siemens, Inc Health Sector G.E. Healthcare General Electric Philippines, Inc. Sta. Clara International Corp. Mount Grace Hospital Venture Philips Electronics and Lighting , Inc. Metro Pacific Investments Megawide Engineering Excellence Strategic Alliance Holding, Inc. 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 June 4, 2013. 38. In the meantime, Petitioners through the National Orthopedic Hospital Workers Union Alliance of Health Workers
PPP Website. Available at http://ppp.gov.ph/?p=7686, last accessed on January 29, 2014.
25

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(NOHWU-AHW) officers attended a meeting with Public Respondent Secretary Ona on June 6, 2013. The officers of the union brought to the attention of Secretary Ona their apprehensions concerning their job security once the POC is operated by a private company. They likewise pointed out how the indigent patients of POC will be adversely affected under a PPP set-up. 39. Public Respondent Sec. Ona gave a pain reliever-peptalk by telling the NOHWU-AHW officers that employees of POC have a choice to either work in the Modernized POC or work in another DOH hospital. 40. On June 4, 2013, only one bidder Megawide-World Citi Consortium, submitted a bid. 41. The DOHs MPOC-PBAC opened the technical bid of Megawide-World Citi Consortium on June 18, 2013 and declared it complete.26 The DOH Technical Working Group for the project evaluated the technical proposal of Megawide-World Citi Consortium. 42. On June 25, 2013, the DOHs MPOC-PBAC opened the financial bid of Megawide-World Citi Consortium and declared it complete. The DOH then submitted the documents to the Investment Coordination Committee of the National Economic and Development Authority (ICC-NEDA) for evaluation.27 43. On November 21, 2013, the NEDA Board chaired by Public Respondent President Aquino, approved the bid contract submitted by Megawide. 28 44. On November 28, 2013, the MPOC-PBAC issued Resolution No. 13 recommending to Public Respondent Secretary Ona that the contract be awarded to Megawide-World Citi Consortium.
PPP Center Press Release, http://ppp.gov.ph/?page_id=7260& paged=2, last accessed on January 29, 2014.
26

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

Citicore Holdings Investment Inc. is the parent firm of and controlling stockholder with 56.8% stake in Megawide. Sybase Equity Investments Corporation, a company owned by Henry Sy and family, directly and indirectly owns 17.02% of Megawide. Disclosure to the Philippine Stock Exchange - Public Ownership Report as of September 30, 2013. Available at http://www.pse.com.ph/resource/corpt/2013/MWIDE_POR_Sep2013 .pdf, last accesssed January 29, 2014.
28

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45. On December 11, 2013, the PPP Center came out with a press release that the DOH issued the Notice of Award to the Megawide-World Citi Consortium. 46. Upon learning of such news, Petitioner Alliance of Health Workers President Jossel Ebesate sent a letter (noted by undersigned counsel Atty. Edre U. Olalia) dated December 17, 2103 to Public Respondent Secretary Ona requesting for a Certified True Copy of the Notice of Award. The letter was duly received by the DOH on December 20, 2013.29 47. Not having received any response yet from the DOH, the National 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 January 13, 201430 to Public Respondents Secretary Ona and Undersecretary Herbosa 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 related to the bidding and award of contract for the POC project. As of the filing of this Petition, undersigned counsel has not received any response to the subject letter. 49. Meanwhile, on January 16, 2014, Petitioner Ebesate received a letter31 from the Public Respondent Herbosa by way of reply to the formers letter dated December 17, 2013, merely informing him that the Notice of Award to the Megawide-World Citi Consortium is available through the PPP Center website and referred him 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
A copy of which is attached as Annex H and made an integral part hereof.
29

A copy of which is attached as Annex Iand made an integral part hereof.

30

A copy of which is attached as Annex J and made an integral part hereof.

31 32

Annex A hereof. Page 19 of 62

of Public Respondents Secretary Ona and Undersecretary Herbosa as late as the afternoon of January 30, 2014 to certify the downloaded hardcopy of the said document but a DOH lawyer therein, in another manifestation of frustrating the Petitioners valid demands, refused to do so and instead merely referred them to procure it at the PPP Center. 52. Given the unjustified refusal and even resistance to perform a purely ministerial act of certifying a document coming from and signed by Public Respondent Secretary Onas office, Petitioners have no other option but to implore this Honorable Court that the said Notice of Award be given judicial notice . At any rate, Petitioners shall forthwith 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 by Public Respondent Secretary Ona, and with the written conforme of Private Respondent Manuel Louie Ferrer for the Consortium of Megawide Construction Corporation and World Citi Medical Center (hereinafter Consortium) dated December 9, 2013, is reproduced here 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 consortiums 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 consortiums 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 MegawideWorld 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 consortiums written conformity to this Notice of Award, within twenty (20) days from the consortiums 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-andTransfer 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 aware or have any knowledge or information nor are they in receipt of any public information whether or not the Post-Award Requirements have been fully complied with or whether the BOT Agreement has been signed.

GROUNDS
I. Public Respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction when they relinquished the duty and responsibility to provide and ensure a basic social service such as health to a private entity through privatization or commercialization of a government hospital (the Philippine Orthopedic Center) to the prejudice of the poor and underprivileged.

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II.

Public Respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction when they expanded the application of the Build, Operate and Transfer (BOT) law to cover the privatization of health services.

ARGUMENTS/DISCUSSION
I. Public Respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction when they relinquished the duty and responsibility to provide and ensure a basic social service such as health to a private entity through privatization or commercialization of a government hospital (the Philippine Orthopedic Center) to the prejudice of the poor and underprivileged. x----------------------------------------------------------------------x

56. The central thesis of this Petition is that it is the States responsibility to provide and ensure a basic social service such as health based on the peoples constitutional right to health and access to affordable health services and free medical care. It is the firm position of the Petitioners that such constitutional, nay moral, duty should not be relinquished to a private entity through the privatization or commercialization of a government hospital to the prejudice and detriment of the public especially of the poor and underprivileged for whom the said hospital is devoted by law.

A. The privatization of a public hospital like the Philippine Orthopedic Center (POC) does not conform to the constitutional mandate on health x---------------------------------------x

57. The privatization of the Philippine Orthopedic Center will result in the denial of medical services to thousands of Filipinos thereby violating international covenants and constitutional provisions recognizing the right to health.

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58. To start with, international covenants recognizing the right to health are legally binding. 59. The right to health is considered among those considered as a fundamental right. Thus, the right to health is one of those rights expressly mentioned in international covenants. 60. Under Article 25 of the Universal Declaration of Human Rights (UDHR), wherein the Philippines is one of the signatories and even a drafter, the following is provided:
Article 25. Everyone has the right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing and housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

61. This is further reiterated in the International Covenant on Economic, Social and Cultural Rights under Article 12 which provides:
Article 12 1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: XXX (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

62. The UDHR adopted unanimously by the United Nations on December 10, 1948 was not written as a treaty, and although the rights contained in the Declaration have been described as aspirational norms, they are still norms.33 63. The treaties which were to codify those norms, the International Convention on Civil and Political Rights (ICCPR) and
The Implications of the Global Economic Crisis on Economic, Social and Cultural Rights, Jeanne Mirer, President, International Association of Democratic Lawyers (IADL), Co-chair of International Committee, National Lawyers Guild (NLG) of the US. Paper delivered at the 5th Conference of Lawyers in Asia Pacific (COLAP), September 2010, Manila.
33

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International Convention on Economic, Social and Cultural Rights (ICESCR), were produced in the Covenants of 1966. State Parties to the ICESCR, which implement these aspects of the UDHR, are committed to the progressive full realization of the rights in the Covenant and UDHR. Using the principles in these instruments, it is submitted 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 the status of customary international law. Customary international law is law which is so universally accepted that compliance is a legal, not just a moral duty. One way to determine whether certain rights have attained customary international law status is whether they are universally recognized in treaties. Both the ICCPR and the ICESCR have been either signed or ratified by almost all countries in the world. This means that a strong argument can be made that its provisions are binding regardless of ratification.35 65. There is no question that under these international covenants, it is the State which is given the primary task of ensuring that its citizens enjoy these rights. The question, therefore, is - are these international covenants legally binding? 66. This Honorable Court answered in the affirmative. In the case of Hong Kong Administrative Region vs. Olalia36 the Honorable Court ruled on the obligatory effect of the Universal Declaration of Human Rights. The Honorable Court said:
On a more positive note, also after World War II, both international organizations and states gave recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community.

67. Petitioners are very much aware that the issue in the above-cited case involves the right to bail in extradition proceedings. But if the Honorable Court recognizes that under the Universal Declaration of Human Rights, the Philippines should see to it that the right to liberty of every individual is not impaired, then it is of equal, if
34 35 36

Ibid. Ibid. G.R. No. 153675, April 19, 2007. Page 25 of 62

not greater importance, for the Honorable Court, under the Universal Declaration of Human Rights, to recognize that the State should see to it that the right to health of every Filipino for the preservation of human life should not be impaired. 68. The provisions in international covenants relating to health are 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 to health 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 and comprehensive approach to health development which shall endeavour to make essential goods, health and other social services 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 an effective food and drug regulatory system and undertake appropriate health, manpower development, and research, responsive to the countrys heath needs and problems.

70. From the abovestated constitutional provisions, it is plain that it is the State that is duty-bound with ensuring the peoples right to health. To abdicate, surrender or relinquish such basic duty and responsibility and pass it on to private entities in any guise or form is clearly a grave abuse of discretion. The question is in case of violation, can relief be obtained from our courts?

B. The enforcement, advancement and protection of the right to health as expressed in the Constitution are legally demandable from the government x----------------------------------------x

71. Having established that there has been a violation of the constitutional mandate on health, the next question we need to
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grapple with is whether the right to health and access to affordable health services and the provision of free medical care are legally demandable constitutional rights. Petitioners humbly submit the constitutional provisions on the right to health are sources of legal obligations. 72. It is well to emphasize the ruling of the Honorable Court in Manila Prince Hotel vs. GSIS37 regarding the nature of constitutional provisions.
XXX ....unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of the constitution are self-executing. If the constitutional provisions are treated as requiring legislation instead of selfexecuting, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law.

73. The Honorable Court further explained, thus:

In case of doubt, the Constitution should be considered selfexecuting rather than non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature discretion to determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute.

74. A reading of Section 11 and Section 12 of Article XIII readily shows that no legislative act is necessary to enforce the constitutional mandate in these provisions. Hence, these provisions should be considered self-executing. Consequently, any violation of such provisions is actionable before the courts of law. 75. Even in the case of Section 15 under Article II Declaration of Principles and State Policies it is submitted that judicial remedy is available in case of its violation. The text of the provision is clear that no legislative act is necessary to enforce it. Likewise, the Honorable Courts decision in the same case of Manila Prince Hotel vs. GSIS, quoting Fr. Joaquin Bernas, is an eloquent reminder on the duty of the executive branch of government to implement every provision of the Constitution:
The executive department has a constitutional duty to implement laws, including the Constitution, even before Congress acts provided that there are discoverable legal standards for
37

G.R. No. 122156, February 3, 1997. Page 27 of 62

executive action. When the executive acts, it must be guided by its own understanding of the constitutional command and of applicable laws. The responsibility for reading and understanding the Constitution and the laws is not the sole prerogative of Congress. If it were, the executive would have to ask Congress, or perhaps the Court, for an interpretation every time the executive is confronted by a constitutional command. That is not how constitutional government operates. (emphasis supplied)

76. The wording of Section 15 Article II of the Constitution The State shall protect and promote the right to health of the people.... is clear enough to constitute a discoverable legal standard vis--vis the governments act to privatize the Philippine Orthopedic Center. As will be shown later, such plan will lead to the denial of medical services to thousands of Filipinos. Such denial of medical services would constitute a clear violation when set against the standard for the State to protect and promote the right to health of the people. 77. In fact, the Court recognized Section 15 Article II of the Constitution as a source of legal rights in the case of Juan Antonio Oposa, et al. vs. Hon. Fulgencio Factoran, Jr., etc, et al.38 The discussion 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 time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides: Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm 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 to health of the people and instill health consciousness among them. While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the
38

G.R. No. 101083, July 30, 1993. Page 28 of 62

inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come generations which stand to inherit nothing but parched earth incapable of sustaining life.

78. There is hence a recognition that, like the civil and political rights embodied in the Bill of Rights, the government is constitutionally mandated to advance and protect the right to health, and the other economic social and cultural rights. The ruling of the Court in Oposa is considered a landmark decision as it recognizes the right to health provision under Section 15 of Article XIII of the Constitution as a source of legal obligation, and therefore, actionable before the courts of law. 79. Moreover, it is evident that even without its inclusion in the Constitution, the right to health has been recognized as among the paramount rights that a citizen is entitled to. In fact, it is affirmed in the 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 law and the constitution. It existed prior thereto, and these constitutional provisions on these matters are mere affirmations of its existence. Under this context, it is just proper that those entitled to it should be given a remedy to demand compliance thereof. As such, the Supreme 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 the executive or legislative branches of Government is not squarely put in issue. What is principally involved is the enforcement of a right vis--vis policies already formulated and expressed in legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review.

81. While at that time, this Honorable Court did not squarely resolve 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 granted the Petition and directed the lower court who issued the questioned order which was the subject of the Oposa petition to resolve the case on 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 the case on the merits is an indication that the Supreme Court recognizes the jurisdiction of the courts to adjudicate issues pertaining to the right to health, and also issues pertaining to the other economic socio-cultural rights. 83. Petitioners thus now invoke the ruling in Oposa to enjoin the Respondents from further proceeding with the privatization of the POC. 84. The justiciability of the right to health and other economic socio-cultural rights is now becoming the prevailing progressive interpretation in other jurisdictions where economic socio-cultural rights were traditionally seen as non-enforceable rights, and were therefore normally non-justiciable questions. 85. In 1996, the Supreme Court of India issued its decision in Paschim Banga Khet Mazdoorsamity vs. State Of West Bengal & Anron,39 wherein it ruled on the right to timely medical care, and the enforceability of the Governments liability for its failure to provide such timely medical care. 86. The Mazdoorsamity case involves an accident victim who was denied admission in several medical institutions on the ground that there was no available rooms/bed to accommodate him, or that there was no adequate medical facility to treat his injury, The Supreme Court of India ruled that the right to timely medical treatment is a valid cause of action to demand compensation and held that:
Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. In the present case there was breach of the said right of Hakim Seikh guaranteed under Article 21 when he was denied treatment at the various Government hospitals which were approached even though his condition was very serious at 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 State the State cannot avoid its responsibility for such denial of the constitutional right of Hakim Seikh. In respect of deprivation of the constitutional rights guaranteed under Part III of the Constitution the
39

1996 SCC (4) 37, JT 1996 (6) 43, May 6, 1996. Page 30 of 62

position is well settled that adequate compensation can be awarded by the court for such violation by way of redress in proceedings under 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 Research Centre v. Union of India, 1995 (3) SCC 42]. Hakim Seikh should, therefore, be suitably compensated for the breach of his right guaranteed under Article 21 of the Constitution.

87. In effect, above-cited ruling in Mazdoorsamity affirms that the right to health is legally demandable from the Government. In a more empahtic fashion, it said:
It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life.

88. Later on, in the landmark case decided by the Constitutional Court 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 the subject of considerable jurisprudential and political debate, the issue of whether socio-economic rights are justiciable at all in South Africa has been put beyond question by the text of our Constitution as construed in the Certification judgment. During the certification proceedings 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 Court held: [T]hese rights are, at least to some extent, justiciable. As we have stated in the previous paragraph, many of the civil and political rights entrenched in the [constitutional text before this Court for certification in that case] will give rise to similar budgetary implications without compromising their justiciability. The fact that socio-economic rights will almost inevitably give rise to such implications does not seem to us to be a bar to their justiciability. At the very minimum, socio-economic rights can be negatively protected from improper invasion.

40

Case CCT 11/00, October 4, 2000. Page 31 of 62

Socio-economic rights are expressly included in the Bill of Rights; they cannot be said to exist on paper only. Section 7(2) of the Constitution requires the state to respect, protect, promote and fulfill 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 a given case. This is a very difficult issue which must be carefully explored on a case-by-case basis. To address the challenge raised in the present case, it is necessary first to consider the terms and context of the relevant constitutional provisions and their application to the circumstances of this case. Although the judgment of the High Court in favour of the appellants was based on the right to shelter (section 28(1)(c) of the Constitution), it is appropriate to consider 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 was based on the contextual interpretation of the provisions of their constitution embodying the said rights. They interpreted these provisions based on their historical and social context, recognizing that these rights are enshrined in their Constitution, not only for the purpose of recognizing its existence, but also a mandate to the Government to ensure that they are properly fulfilled, advanced and protected. 90. Thus, the Constitutional Court of South Africa further held in the Irene Grootboom case, supra, that:
Rights also need to be interpreted and understood in their social and historical context. The right to be free from unfair discrimination, for example, must be understood against our legacy of deep social inequality. The context in which the Bill of Rights is to be interpreted was described by Chaskalson P in Soobramoney: We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart 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 Africa affirmed its ruling in the Grootboom case and emphasized that economic social and cultural rights are justiciable. These rights
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provided under their constitution are enforceable on the government subject to certain limitations of resources. But these limitations of resources do not affect the enforceability of the said rights, since the Government is mandated by the same provisions to adopt measures to ensure the enforcement of these rights. Thus, in the Minister of Health, et al. vs. Treatment Action Campaign, et al.,41 it held that:
[29]In effect what the argument comes do wn to is that sections 26 and 27must be construed as imposing two positive obligations on the 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 available resources". Implicit in that contention is that the content of the right in subsection (1) differs from the content of the obligation in subsection (2). This argument fails to have regard to the way subsections (1) and (2) of both sections 26 and 27 are linked in the text of the Constitution itself, and to the way they have been interpreted 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 realisation of 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 health care, sufficient food and water, and social security, including, if persons are unable to support themselves and their dependants, appropriate social assistance. Subsection (1) refers to the right everyone has to have access to these services; and subsection (2) obliges the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. The rights requiring progressive realisation are those referred to in sections 27(1)(a), (b) and (c).

92. Similarly, in ruling that an action to assert the right to healthful ecology, and also the right to health is not a political question, the Supreme Court much earlier in Oposa interpreted the constitutional provisions embodying these rights, based on their historical context recognizing that such rights has been in existence from the inception of mankind. This is also a recognition that the right to health, based on its historical context, is as important as the rights protected under the Bill of Rights, and as such, should be given the same efficacy. 93. Moreover, the same provisions in the Philippine Constitution, with special emphasis on the right to health, should likewise be interpreted in its social context - to reiterate, the right to
41

Case CCT 8/02, July 5, 2002 Page 33 of 62

health has been in existence from the inception of mankind, and that 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 Philippine Constitution will be better understood by looking at its social context, in the same manner that the Constitutional Court of South Africa interpreted their Constitutional provisions on economic socio-cultural rights. In this way, we will be able to appreciate the nature, extent and basis of such right to health. 95. At the time of the enactment and approval of the 1987 Philippine 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 1987 Constitution, in addition to the constitutional safeguards on the civil and political rights of the people. 96. It is also for this reason that the right to health was included in the Declaration of Principles and in the Social Justice provisions. The inclusion of these provisions, which may initially be seen as to be not totally necessary, was to ensure that even the right to health of the poor and the marginalized is amply protected, ensuring them access 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 the interpretation of Sections 2642 and 2743, Chapter 2 of the 1997
26. Housing.-( 1) Everyone has the right to have access to adequate housing.
42

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant 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 themselves and their dependants, appropriate social assistance. Page 34 of 62

Constitution of South Africa. A distinction was made between the right to access as covered by the first subsections of the two constitutional provisions, and the obligations of the Government to provide the same as governed by the subsections of the said provisions, where the limitations were provided. 98. A perusal of the Philippine aforecited constitutional provisions on the right to health reveals that there is no provision which is similar to Section 26 (2) and Section 27 (2) of the South African Constitution subjecting the enforcement of the rights therein contingent 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 of the Philippine Government to afford such rights to its citizens is not subject to any limitation. What is clear in the said provisions of the Philippine Constitution is that the State is duty-bound to ensure that adequate and affordable health/medical and social services are available and accessible. 100. As things stand, in many communities in the Philippines, the problem is not only access to health and medical services, but the very absence of such basic social services that should be provided by the Government. In many instances, many have died, and many are dying, either due to the absence of medical and/or health services or because they cannot afford one. Surely, the provisions on the right to health were incorporated in the 1987 Constitution for a reason, coming as it does from the ashes of the kleptocratic dictatorship that has brought so much suffering to the common people. Definitely, it is not for the purpose of merely stating in a platitudinous tone that there exists such a right. 101. Contextually, the said right to health was incorporated in the 1987 Constitution not only for the purpose of recognizing the existence of such right, but also to ensure that health and medical services are made available to its citizens, especially the poor and the marginalized in recognition that they have a right to health to be advanced and protected by the Government. 102. The purposes for the inclusion of the right in the 1987 Constitution will be put to naught if our courts refuse or fail to afford
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. Page 35 of 62

the people the remedy for the enforcement of this right, and to compel the Government to advance and protect this right. 103. In his commentary on the ruling of the Constitutional Court of South Africa, as well as the traditional doctrine on the nonenforceability of economic socio-cultural rights, former Chief Justice Reynato Puno succinctly pointed out that A right with no remedy is no right at all.44 104. Noting that the Supreme Court still adheres to the doctrine of non-justiciability and non-enforceability of economic socio-cultural rights, Chief Justice Puno lamented that:
Even while they are embedded in the Constitution, they are no better than paper rights because they [the people] cannot go to any government authority, they cannot go to the legislature, they cannot go to the executive, they cannot go to the Supreme Court and demand that their socioeconomic rights be implemented,

105. Chief Justice Puno emphasized the need to re-examine this adherence to the prevailing doctrine taking into consideeedingly more impration the new trend of interpretation as ruled in the Grootboom and the Ministry of Health Cases rendered by the Constitutional Court of South Africa and the decision in the Mazdoorsamity case of the Supreme Court of India. 106. The Petitioners humbly submit that there is indeed a need to take a second at the traditional adherence to this doctrine of nonjusticiability of economic socio-cultural rights, not simply to align with the aforesaid decisions of the Constitutional Court of South Africa and the Supreme Court of India and the other jurisdictions who adopted this new interpretation, but exceedingly more importantly because this progressive interpretation, as compared to the traditional, is in conformity with the rule of justice, and would properly and effectively implement the constitutional mandate for the protection of these rights.

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

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-mustdemand-rights-to-health-housing-education-says-ex-cj-puno, last accessed January 29, 2014. Page 36 of 62

107. It must be stated that this Petition is questioning an act that further limits the already limited access of the poor and the marginalized to basic health and medical services. The privatization of the Philippine Orthopedic Center will result in the reduction of the peoples right to access to medical/health services, especially those who are need of the specialty being offered by the POC. 108. In the first place, the establishment and operation of Government hospitals, including the POC, are essential in the Governments compliance with the constitutional mandate to ensure the right to health of its citizens by providing adequate and affordable health, medical and social services. 109. Surely, there is a need to address the enforceability of this right in the light of the fact that a vast majority of the Filipinos have no access to basic health and medical services. To decide otherwise will be tantamount to the abandonment of the right of the people who regard the judiciary as the supposed final bastion for the protection of their rights. This will aggravate the disillusionment of the people who feel to have been abandoned of not betrayed by the Public Respondents. 110. This Honorable Court has already provided the opening for the relaxation of its policies as regards the demandability or justiciability of the right to health as it ruled in Oposa. It should further be encouraged by the developing trend in other jurisdictions that are now giving paramount consideration to the health and welfare of its people over the stringent rule on justiciability of economic sociocultural rights. 111. Petitioners implore that this Court widen the scope of its previous ruling in Oposa and should categorically rule that, indeed, the right to health, and other economic socio-cultural rights are legally demandable from the State. 112. Petitioners humbly but firmly believe that this is now the right time, fourteen (14) years after the rendition of the Grootboom case, and twenty-one (21) years after the Decision in the Oposa case was issued in 1993, that this Honorable Court make a categorical ruling that the right to health and other economic, socio-cultural rights are indeed justiciable issues, and are legally demandable and enforceable against the State.

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C. Governmental health services should not be privatized or commercialized through the Public-Private Partnership (PPP) program of the government via the Build Operate and Transfer (BOT) law x----------------------------------------x

113. It is axiomatic that the government performs two kinds of functions, to wit: the constituent and the ministrant. 114. Constituent functions constitute the very bonds of society and holds society together, such as maintenance of peace and order, fixing the legal relations between members of the family, regulation and transmission of property, administration of justice, etc. Constituent functions are therefore compulsory.45 115. Ministrant functions are those undertaken to advance the general interests of society, such as public works, public charity and regulation of trade and industry. These functions are merely optional.46 116. However, the Supreme Court has ruled that the distinction between constituent and ministrant functions is not relevant in our jurisdiction. In the case of PVTA v. CIR47, the Supreme Court reiterated the ruling in ACCFA v. Federation of Labor Unions48 that such distinction has been blurred by because of the repudiation of the laissez faire policy in the Constitution.
The growing complexities of modern society, however, have rendered this traditional classification of the functions of government quite unrealistic not to say obsolete. The areas which used to be left to private enterprise and initiative and which the government was called upon to enter optionally and only because it was better equipped to administer for the public welfare than is any private individual or group of individuals continue to lose their well-defined boundaries and to be absorbed within activities that the government
45 46 47 48

Isagani Cruz, Philippine Political Law, 1987 Edition, Page 18. Ibid, Page 19. 65 SCRA 416. 30 SCRA 649. Page 38 of 62

must undertake in its sovereign capacity if it is to meet the increasing social challenges of the times. Here as almost everywhere else the tendency is undoubtedly towards a greater socialization of economic forces. Here, of course, this development was envisioned, indeed as a national policy, by the Constitution itself in its declaration of principle concerning the promotion of social justice.

117. Thus, it is now obligatory on the State itself to promote social justice49, to provide adequate social services to promote a rising standard of living50, to afford protection to labor51 and to adopt other measures intended to ensure the dignity, welfare and security of its citizens. 118. The governments obligation to providing health service to its citizens and the right to health of the people are expressly provided the Constitution. These functions, while traditionally regarded as merely ministrant and optional, have been made compulsory by the Constitution. 119. Incidentally, one of the important task of the government is to act for the State as parens patriae or guardian of the rights of the people. One of the fundamental rights of the people enshrined in the Constitution is the right to heath of the people. 120. Respondents would surely contest that the plan to modernize the POC is not privatization but a mere modernization. The meaning of privatization is complex, covering a range of ideas in law, politics, economics, and philosophy. However, the World Health Organization (WHO) has clearly defined privatization in healthcare as:
a process in which non-governmental actors become increasingly involved in the financing and/or provision of healthcare services.52

121. Even commonsensically, if the MPOC is not privatization, then why is its framework the Public-Private Partnership program? If this entails simple modernization only as Public Respondents would
Constitution, Art. II, Sec. 10. Ibid. Art. II, Sec. 9. Ibid. Art. XIII, Sec. 3.

49 50 51 52

J. Muschell, Technical Briefing Note on Privatization in Health, 1995, WHO/TFHE/TBN/95.1 Page 39 of 62

like the clueless public to believe, then the allotment for charity/indigent/service patients must be the same. Obviously, the role of private financing in the provision of health is esponentialy increasing. 122. Indeed privatization is a movement to deregulate private industry and transfer many government services, assets and functions to the private sector. For the past decades, there has been an increasing trend towards privatization world wide. In recent years, privatization has touched nearly every area of public life.53 I 123. In the Philippines, the move towards privatization has been legalized and justified through the passage of laws, Presidential Decrees, Executive Orders, Administrative Orders and Memorandum Orders, the most recent of which is R.A. No. 7718 or the BOT Law. 124. But just as the movement towards privatization has been started for several years, concerns about the negative consequences of privatization have been expressed for just as long. The stated goal of privatization has usually been to reduce costs, efficiency and improved service. The results has often been the opposite, keeping in mind the privatization of the MWSS and other public utilities. 125. Those concerned with the public policy of privatization correctly say that the private sector mandate to make a profit can engender public safety and reduce services available to the general public (particularly in poor and rural areas).54 126. There will be increased costs to consumers through higher fees and the private sector will increase profit margins and include expenses like high executive salaries and corporate debt loads that consumers and taxpayers will have to pick up.55 127. There is also the valid concern that private companies will lack transparency, adequate oversight and accountability. How do individuals complain to a corporation if they feel abused by high prices when there are no or limited alternatives? The privatization policies will result in growing inequality between the wealthy and poor.56

Privatization: The Public Policy Debate by Nora Leech, Page 1, League of Women Voters, www.lwv.org, last accessed December 30, 2014.
53 54 55 56

Ibid. Page 4. Ibid. Ibid. Page 40 of 62

128. Also, increased corruption between government and forprofit private companies will be exacerbated as the lines between government and business professional become blurred.57 129. Providing heath service to the people, especially the poor and the vulnerable, is one of the fundamental functions of government. This function should not be subject to the profit motive and other influences but should remain a core public function, responsive to democratic principles and accountable to public officials. 130. It is thus the strong position of Petitioners that governmental health services should not be privatized or commercialized through the Public-Private Partnership (PPP) program of the government via the Build Operate and Transfer (BOT) law as this would prejudice them. 131. In the end, any form, manner or nomenclature of privatization of public health care services , whether through publicprivate partnership, corporatization, users service fee schemes, revenue enhancement programs, outsourcing, or even outright sale, will further aggravate the already poor accessibility of event the most basic health care services to the people especially the poor and the underprivileged. 132. In fact, previous experience and precedents have demonstrated that private-public partnerships in government hospitals have allowed the entry of private diagnostic and laboratory companies, private clinics and other private medical services companies to operate different hospital services charging exorbitant fees that squeeze dry the hard earned money from patients in public hospitals while depriving health services to those who cannot afford them at all. 133. This is simply because government hospitals and public health care facilities are being run like big business entities to enhance revenues and amass big profits. 134. The so-called Universal Health Care program of the government as its centerpiece 2010-2016 health policy has the effect of passing the responsibility of the State to ensure a real free, comprehensive and progressive health care system instead of allocating adequate budget for health which is pegged at five (5%) percent of the GNP as recommended by the WHO.

57

Ibid. Page 41 of 62

135. The privatization of the POC through the PPP of the Government is a ominous precursor to the twenty-six (26) other government hospitals all over the country that are being fast-tracked for corporatization. That wild running train that would run over the already suffering public must be stopped.

D. The privatization of the Philippine Orthopedic Center (POC) is prejudicial to the public and the public interest X-----------------------------------------------X

136. The single biggest practical reason why the acts of the Respondents constitute grave abuse of discretion is that the privatization of the Philippine Orthopedic Center will result in the denial of medical services to thousands of Filipinos. 137. The right to health, in order to be realized, necessarily includes corollary rights such as right to safe drinking water, right to shelter and right to adequate food supply. There is no doubt that access to medical services is a very important component of the right to health. 138. A government undertaking such as the MPOC that will result in the denial of access to medical services will constitute a clear violation of the right to health. 139. The POC is a 700-bed capacity hospital. For the year 2010, POC admitted 6,579 patients. The POC also treated 42,179 patients under its emergency services and 147,678 patients in its outpatient department.58 140. That the POC plays an important part in the healthcare delivery system of the country cannot be emphasized enough. Being the only specialized orthopedic hospital in the country, the POC treats patients from all over the country. 141. Of the 6,579 patients admitted in 2010, more than half or 52% (3,469 patients) are from the NCR and 48% (3,144 patients) are from the provinces. This ratio of patients from NCR and the provinces
58

2010 COA Report, Executive Summary Page ii.

Page 42 of 62

is consistent since 2008 and only slightly varying in the years 2006 53% from the NCR and 47% from the provinces and 2007 - 54% from the NCR and 46% from the provinces.59 142. More importantly, the POC caters mostly to Filipinos who are otherwise unable to pay the high cost of medical care in the country. While it is officially a 700-bed capacity hospital, only 657 beds are actually used. Of these, 562 beds or 85% are allocated for service patients and 95 beds or 15% are allocated for pay patients. 143. With 85% of the beds allocated for service patients, it is not surprising that for 2010 of the 6,579 patients admitted, 5,347 patients or 80% are service patients. Of these service patients 4, 326 patients are not members of Philhealth.60 This means that the POC is a poor mans hospital. It is primarily serving the poorest of the poor of the Filipinos and they receive treatment even if they are not covered by Philhealth largely because they cannot afford to be members thereof in the first place. 144. In contrast, the private corporation who will be operating the POC is only required to allot 70 beds only or a mere 10% of the 700 beds of the hospital.61 145. One need not be a rocket scientist or a highly paid and trained medical specialist for that matter -- to see the glaring disparity in these numbers. By reducing the number of beds allocated for service patients to 70 beds, respondents are practically denying the expert medical care of a specialized orthopedic hospital to thousands of Filipinos who cannot pay and cannot be accommodated beyond the 70-bed limit. 146. It is worth emphasizing that under the present set up, 562 beds or 85% of its total beds actually used are allocated for service patients. With this allocation, the POC for year 2010 was able to admit 5,347 service patients. With the privatization of POC and the reduction of beds allocated for service patients to only 70 beds, it is not hard to see that those who cannot afford to pay will be turned away.

DOH Information Memorandum Modernization of Philippine Orthopedic Center November 2012.

59 60 61

Ibid. Ibid; This was confirmed by the MPOC-PBAC in its Bid Bulletin No. 5.

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147. In fact, the MPOC-PBAC clarified in Bid Bulletin No. 5 that:

Project Proponent is not under obligation to service patient beyond maximum utilization. For instance, if all 70 service beds are occupied and the hospital receives additional patients in the service category, the Project Proponent shall have the right TO NOT ACCOMODATE them and instead transfer or refer them to another DOH operated facility. (Emphases supplied.)

148. In short, a privatized POC, which for years has been accepting and treating patients regardless of their inability to pay or whether they have Philhealth or not, will be turning away patients, specifically, the indigent ones, if not lock out even those who are already presently confined. 149. For those who have not yet been or seen the POC -- one just needs to pay a visit and take even a cursory peek even from a comfortable distance at the POC wards and many other government hospitals for that matter to see this pathetic and miserable situation. Then bleed in anger at the rank injustice of this society. 150. And this does not even include the Emergency Room or ER (42,179 patients for 2010) and Out-Patient Department OPD (147,678 patients for 2010) patients that POC is serving.62 In Bid Bulletin No. 9, the MPOC-PBAC clarified that the cost of ER and OPD services under the privatized POC will be market driven and based on the judgment of the Project Proponent. 151. And the inevitable profit motivation is most evident when the Public Respondents enticed investors and even boasted that with the so-called modernization of the POC, incremental patients may be expected from medical tourism.63 152. At present, ER and OPD services of the POC are free of charge to indigent patients. This will no longer be the case once POC is privatized. 153. In sum, the privatization of POC will lead to the reduction of the beds allocated for service patients to only 70 beds from the current 562 beds. Furthermore, ER and OPD services which are currently being provided by the POC free of charge to indigent patients, will be subjected to fees according to prevailing market rates. All these will undoubtedly result in the denial of medical
Investment Opportunity, 2012 Powerpoint Presentation of the DOH entitled Way Forward: Envisaged Timelines for Bidding & Award of Project on PPP mode.
63

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services to hundreds of thousands of Filipinos who are receiving such medical care free of charge under the current POC. 154. Moreover, the privatization of the Philippine Orthopedic Center brazenly violates Republic Act 1939 or An Act Prescribing the Appropriate Share of the National, Provincial, City and Municipal Governments in the Financial Contributions for the Operation and Maintenance of Free Beds in Government Hospitals and/or the Establishment of Additional Wards or Hospitals in the Philippines that prescribes the percentage of beds that shall be allotted for charity patients. 155. Sec. 6 of R.A. 1939 provides:
Sec. 6. All government hospitals shall operate with not less than ninety (90%) per centum of its bed capacity as free or charity beds.

156. The law is crystal clear. Government hospitals like POC should allot not less than 90% of its bed capacity as free or charity beds. The privatization of the POC wherein only 70 beds or 10% of the beds will be allotted for service patients is a far cry from the 90% prescribed by R.A. 1939 for government hospitals. Evidently, this is in violation of Sec. 6 of R.A. 1939. 157. For being contrary to the letter and spirit of R.A. 1939, Respondents should even on this ground alone be enjoined from proceeding further with the privatization of POC. 158. Petitioners maintain that based on previous empirical data, experience and precedents that are parallel or relevant to pulic health services, the privatization of the POC is prejudicial to the public and the public interest. It will lead to more expensive health services that are unnecessarily burdensome or even unaffordable for the hospital's mainly lower income patients. 159. As a matter of fact, the extreme prejudice and injury to the public does only mainly fall on the shoulders, as it were, of the majority of the current indigent patients at the POC but even those who are paying or have the capacity to pay, thereby enlarging the gap between what is being charged by a government hospital and a non-government hospital whether privatized, corporatized or government-owned and controlled. 160. In the concrete again, can the DOH intervene for the pricing of services, supplies, medicines and implants in the

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modernized POC? Will it intervene? What if the hospital operator increases the rates, will the government support the move? 161. The answer of Public Respondents by way of Response and Revisions to the proposed BOT Agreement is telling: For Sponsored and Indigent Patients, pricing of Project Services including supplies and medicines, shall be comparable to government owned and controlled corporate hospitals; provided that for Pay Patients, the Project Proponent shall have the discretion to determine the pricing for the Project Services, supplies and medicines.64 162. Providing health services according to commercial principles which prioritize financial cost-benefit analysis over service provision leads to more expensive charges. 163. On average, the cost of treatment in a private health facility is almost three times (273%) that in a public health facility and of confinement almost 50 percent more (145%).65 164. This conclusion is not any different with corporatized government hospitals. For instance the rates charged for procedures in the National Kidney and Transplant Institute (NKTI) and Philippine Heart Center (PHC), both government-owned and controlled corporations, can reach as much as seven or eight times the rates charged in the Philippine General Hospital (PGH), Jose Reyes Hospital and San Lazaro Hospital.66

64

MPOC Bid Bulletin No.16, April 25, 2013. Available at

http://ppp.gov.ph/wp-content/uploads/2013/04/MPOC_BB16_04252013.pdf,

last accessed January 30, 2014. IBON Foundation computations using data on health costs from the 2008 National Health and Demographic Survey (NDHS) of the National Statistics Office (NSO).
65

Data from Hospitals Public Information Unit of the Alliance of Health Workers (AHW).
66

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165. For tabular comparison to illustrate these points:

Average cost

PUBLIC health facility PhP Equivalent days worth of daily wage*

PRIVATE health facility PhP Equivalent days worth of daily wage*

Visited facility Transport 80 0.29 days 134 0.48 days Treatment 1,051 3.8 days 2,864 10.3 days Confined Confinement 16,802 60 days 24,278 87 days * Average daily basic pay of wage & salary worker = P279 Source: 2008 National Demographic and Health Survey; DOLE-BLES for wage data

Rates of procedures commonly availed by patients 1 , public versus GOCC), as of March 2013, in Php Procedure GOCC DOH-retained and national university NKTI PHC Jose San PGH PGH Class Reyes Lazaro B (Charity) CBC 380 325 130 200 105 50 Urinalysis 300 225 50 200 100 145 (manual) (automated) 55 250 (automated) (manual) Fecalysis 300 110 40 110 80 45 Chest-Xray 500 450 290 250 110 ECG 390 550 1500 NA determination 305 140 230 95 50 (blood), 70 (urine) Chloride 300 140 230 95 50 (blood), determination 70 (urine) FBS 245 80 250 65 30 Crossmatching 350 195 340 235 75 Bloodtyping 260 130 170 245 70 1 Outpatient pay-patient, unless otherwise specified Source: Hospitals Public Information Unit, Alliance of Health Workers

166. In other words, health costs and fees are markedly higher in non-public/government and GOCC hospitals than in public/government hospitals. And this holds true even for current rates of the POC:

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Current POC rates67 CBC 150 Urinalysis 70 Fecalysis 70 Chest X-Ray 250 ECG NA 140 determination Chloride 140 determination FBS Crossmatching 195 Bloodtyping 140

167. The national health insurance system, PhilHealth, is also very far from being able to compensate for the higher charges in corporatized and privatized hospitals. IBON Foundation's nationwide survey in October 2013 had 50% of respondents saying that PhilHealth covered not more than half of their medical expenses -more specifically, 29% of respondents said that PhilHealth just covered 1-25% of their medical expenses while 21% said that PhilHealth covered 26-50% of their medical expenses.68 168. Furthermore, the privatization of POC violates constitutional provisions that guarantee the security of tenure of employees. 169. At present the POC has a manpower complement of 1,203.69 The breakdown is as follows:: Medical Services Nursing Service Paramedical Service Administrative Service Job Order Medical Officer III 155 371 111 285 37 98

POC Hospital Order No. 033 Series 2011 dated February 22, 2011 signed by Luisito Maao, MD Medical Center Chief II.
67 68 69

IBON Foundation October 2013 Nationwide Opinion Survey

MPOC PBAC Bid Bulletin No. 12 Annex Manpower Complement as of March 1, 2013. Page 48 of 62

170. Aside from the employees under Job Order and Medical Officer III, the rest of the employees, numbering 922, are permanent employees. 171. What will happen to the employees of POC? 172. In its answer to such query from prospective bidders, the MPOC Prequalification Bids and Awards Committee (PBAC) said:
For Non-Medical Employees, they have an option to remain in government service or transfer to the New Hospital Facility. Those who stay in government service will be retained in the existing POC or re-assigned to other hospitals or offices of DOH. For employees who accepted offer of employment from the Project Proponent, they are required to resign or, if eligible, retire from government service. Resigned/Retiring employees shall be entitled to benefits under the civil service rules and applicable laws. 70

173. Such plan is a threat to the security of tenure of the public health workers currently employed in the POC. Among such employees is Petitioner Sean Velchez and members of Petitioner National Orthopedic Hospital Association Employees Association. Those who will choose to work in the POC to be operated by the private corporation are not even guaranteed they will be accepted as (t)he Project Proponent would have the freedom to select employees who wish to transfer.71 174. On the other hand, those who will choose to remain in government service must contend with the plan that will have them transferred to a hospital or DOH office that will be not of their own choosing. It is not even clear, where exactly will they be transferred as neither the DOH nor the POC Management has given any information of any plan with respect to such transfer. 175. The POC employees, thus, face a dilemma. They either choose to work for this New Hospital Facility wherein there is no guarantee that they will be accepted- and lose their permanent status as a civil service employee. Or they can choose to remain in government service and be transferred to a place of work in wonderland that is not of their own choosing.

70 71

MPOC PBAC Bid Bulletin No. 12.

DOH - Modernization of Philippine Orthopedic Center Information Memorandum November 28, 2012, page 27.

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176. This is really not much of a choice. And this is certainly contrary to constitutional provisions that guarantee security of tenure. 177. Article II Section 18 of the Constitution provides:
The State affirms labor as a primary social economic force . It shall protect the rights of workers and promote their welfare.

178. Article XIII Section 3 of the Constitution provides:

The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike n accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decisionmaking processes affecting their rights as may be provided by law.

179. As in the case of the right to health, constitutional provisions that guarantee security of tenure are self-executing, and thus, a source of legal obligation, as there is nothing in the text of the provisions require legislative enactment for it to be effective. 180. Security of tenure covers not only employees removed without cause, but also cases of unconsented transfers and reassignments, which are tantamount to illegal/constructive removal.72 181. The privatization of POC, with respect to its employees, will result to unconsented transfer/reassignment of its present employees which is tantamount to constructive dismissal. This violates constitutional provisions that guaranty security of tenure. 182. The foregoing considered, the privatization of the Philippine Orthopedic Center (POC) is undoubtedly prejudicial to the public and the public interest.

Republic of the Philippines vs. Minerva Pacheo, G.R. No. 178021, January 25, 2012.
72

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II. Public Respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction when they expanded the application of the Build Operate and Transfer (BOT) law to cover the privatization of health services X---------------------------------------------------x 183. At any rate, even assuming arguendo that the States responsibility to provide and ensure a basic social service such as health based on the peoples constitutional right to health and access to affordable health services and free medical care can be relinquished to a private entity through privatization or commercialization of a government hospital, still the questioned acts of Public Respondents in privatizing the POC amounts to grave abuse of discretion amounting to lack or excess of jurisdiction because they illegally expanded the application of the Build Operate and Transfer (BOT) law to cover the privatization of health services. 183. The question now is whether or not Hospital/Medical Services is covered by the BOT Law. It is our humble submission and reading that health services are excluded from the coverage of the BOT law. 184. Only health facilities, which are limited to physical structures and equipment, excluding health/medical services, may be contracted to private entities under the BOT law. 185. Pertinently, Section 2 of R.A. 7718, specifically provides:
SEC. 2. Denition of Terms. - The following terms used in this Act shall have the meanings stated below: (a) Private sector infrastructure or development projects - The general description of infrastructure or development projects normally nanced and operated by the public sector but which will now be wholly or partly implemented by the private sector, including but not limited to, power plants, highways, ports, airports, canals, dams, hydropower projects, water supply, irrigation, telecommunications, railroads and railways, transport systems, land reclamation projects, industrial estates or townships, housing, government buildings, tourism projects, markets, slaughterhouses, warehouses, solid waste management, information technology networks and database infrastructure, education and health facilities, sewerage, drainage, dredging, and other infrastructure and development projects as may be authorized by the appropriate agency/LGU pursuant to this Act. Such projects shall be undertaken through contractual arrangements as dened Page 51 of 62

hereunder and such other variations as may be approved by the President of the Philippines.

186. The abovecited provision defines the specific projects which are covered by the BOT law. The law referred to such projects as infrastructure and development projects, which also clearly refers to public works infrastructure project. When it was first used, infrastructure was originally defined as "(t)he installations that form the basis for any operation or system". 187. The BOT Law and Procurement Law (RA 9184) in Sec 5. defines:
(k) Infrastructure Projects include the construction, improvement, rehabilitation, demolition, repair, restoration or maintenance of roads and bridges, railways, airports, seaports, communication facilities, civil works components of information technology projects, irrigation, flood control and drainage, water supply, sanitation, sewerage and solid waste management systems, shore protection, energy/power and electrification facilities, national buildings, school buildings, hospital buildings and other related construction projects of the government.

188. As such, in its strictest sense, infrastructure refers only to the installations or physical structures like buildings, roads, bridges and similar installations. It does not include the activities or services being undertaken in such installations. The enumeration in the BOT law refer to hard projects excluding soft projects like health services which an employee, a natural person, provides to the public. 189. Using this definition as basis, medical and health services are not covered by the BOT law. Consequently, while the BOT law may be used for the construction or rehabilitation of hospitals and hospital facilities, such coverage does not include the services undertaken in the said medical and hospital facilities. 190. It must be noted that while BOT the law referred to the projects enumerations therein as infrastructure and development projects, it referred to projects pertaining to education and health as education and health facilities. 191. The terms infrastructure and facility have different meanings. As stated earlier, in its broadest sense, infrastructure may include not only the physical structure of a project, but also the services undertaken in such physical structure, the term facility is more restrictive as it refers only to the physical structure and equipment and not to the services being undertaken in such facility.

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192. Consequently, this reference has a special implication as to what may be contracted under the BOT law in so far as projects pertaining to medical and health services are concerned. The fact that the law used the word facilities to describe what may be the subject of the BOT law in reference to medical and health services is a clear indication that it limited such coverage only to the facilities but not to the services rendered in such medical and health institutions. 193. In Sario Salinas Malinias vs. The Commission on Elections, et al.73, citing prior cases, held that:
It is a settled rule of statutory construction that the express mention of one person, thing, or consequence implies the exclusion of all others. The rule is expressed in the familiar maxim, expressio unius est exclusio alterius. The rule of expressio unius est exclusio alterius is formulated in a number of ways. One variation of the rule is the principle that what is expressed puts an end to that which is implied. Expressium facit cessare tacitum. Thus, where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters. xxx The rule of expressio unius est exclusio alterius and its variations are canons of restrictive interpretation. They are based on the rules of logic and the natural workings of the human mind. They are predicated upon one's own voluntary act and not upon that of others. They proceed from the premise that the legislature would not have made specified enumeration in a statute had the intention been not to restrict its meaning and confine its terms to those expressly mentioned.

194. Similarly, in San Pablo Manufacturing Corporation vs. Commissioner of Internal Revenue74 it was held that:
Where the law enumerates the subject or condition upon which it applies, it is to be construed as excluding from its effects all those not expressly mentioned. Expressio unius est exclusio alterius. Anything that is not included in the enumeration is excluded there from and a meaning that does not appear nor is intended or reflected in the very language of the statute cannot be placed therein. The rule proceeds from the premise that the legislature would not have made specific enumerations in a statute if it had the intention not to restrict its meaning and confine its terms to those expressly mentioned.

73G.R. 74

No. 146943, October 4, 2002.

G.R. No. 147749, June 22, 2006. Page 53 of 62

195. In this case, since the BOT law specifically provides that only health facilities may be contracted to private entities in accordance with its provisions, such reference indicates that the BOT law does not authorize the contracting out to private entities of medical and health services being provided by the public/government medical and health institutions. 196. In fact, as defined by the Supreme Court in National Housing Authority vs. Hon. Mauro T. Allarde, etc., et al. ,75 (cited in Nerwin Industries Corporation vs. PNOC-Energy Development Corp., et al.,76 it refers only to construction of structures or facilities. 197. Thus, the Supreme Court held in the National Housing Authority vs. Hon. Allarde, supra, that:
As regards the definition of infrastructure projects, the Court stressed in Republic of the Philippines vs. Salvador Silverio and Big Bertha Construction The term infrastructure projects means construction, improvement and rehabilitation of roads, and bridges, railways, airports, seaports, communication facilities, irrigation, flood control and drainage, water supply and sewage systems, shore protection, power facilities, national buildings, school buildings, hospital buildings, and other related construction projects that form part of the government capital investment.,

198. While the term infrastructure projects was defined in the National Housing Authority case and the Nerwin Industries Corp. case in relation to the Presidential Decree 1818 and Republic Act No. 8975, which proscribe the issuance of temporary restraining order/preliminary injunction against government infrastructure projects, the same definition is obviously applicable in so far as the provisions of the BOT law is concerned. 199. The infrastructure projects referred to in P.D. No. 1818 and R.A. No. 8975 refers to the same infrastructure projects referred to in the BOT law. As such, it is clear that health services cannot be contracted out to private entities under the BOT law. 200. Neither can Respondents find shelter in the Implementing Rules and Regulations, which expanded its coverage insofar as projects related to health/medical institutions are concerned, as it cannot prevail over the provisions of the BOT law.
75 76

G.R. No. 106593, Nov. 16, 1999. G.R. No. 167057, April 11, 2012. Page 54 of 62

201. While the BOT law limits its coverage only to physical structures and equipment insofar as projects relating to health/medical institutions are concerned, the Implementing Rules and Regulations (IRR) expanded its coverage by referring to such projects in relation to health/medical institutions as infrastructure projects, which term included not only the physical structures and equipment, but also the services undertaken therein. 202. It is a settled rule that administrative agencies have the authority to promulgate rules to implement specific laws, especially when so authorized. However, to be valid, the implementing rule must conform to the requirements of the law it seeks to implement, and it may not amend or expand its provisions. 203. In Felix Perez, et al. vs. Philippine Telegraph and Telephone Company, et al.77 it was held that:
At the outset, we reaffirm the time-honored doctrine that, in case of conflict, the law prevails over the administrative regulations implementing it. The authority to promulgate implementing rules proceeds from the law itself. To be valid, a rule or regulation must conform to and be consistent with the provisions of the enabling statute. As such, it cannot amend the law either by abridging or expanding its scope.

204. Consequently, the provision of the IRR expanding the coverage of projects for health institutions to health infrastructure, cannot prevail over the provision of the BOT law which limits its coverage only to health facilities. 205. Even on this very specific ground alone, the questioned acts of Public Respondents must be corrected and set aside. 206. Lastly, assuming arguendo that the government can privatize medical health services through build-operate-and-transfer arrangements, the award by the Public Respondents of the MPOC project to the Consortium is done with grave abuse of discretion amounting to lack or excess of jurisdiction because the procedure for the award apparently violated certain provisions of the BOT Law. Contrary to its mandate the Department of Health (DOH) awarded a contract that appears to be greatly disadvantageous to the government and to the consumers as the public will eventually pay higher medical fees. This is contrary to the provisions of the BOT Law itself which provides that the tolls, fees and rentals to be charged or collected should be reasonable.

77

G.R. No. 152048, April 7, 2009 Page 55 of 62

207. All told, these facts and circumstances, as measured by the 1987 Philippine Constitution and the pertinent laws as well as international covenant and customary laws evidence the grave abuse of discretion on the part of the Public Respondents in the privatization and commercialization of a the POC and in the bidding, awarding and other consequences or incidents related thereto.

APPLICATION FOR PRELIMINARY INJUNCTION

208. Petitioners hereby replead the preceding arguments and discussions and further aver that the initial stage or phase of privatization of the Philippine Orthopedic Hospital (POC) has already started with the conclusion of the bidding and its consequent award of the contract to the Consortium. The consortium will begin anytime the construction of buildings of the POC and will assume its operation. 209. As such, there is a need to restrain or enjoin the privatization of the POC because it will result to grave and irreparable injury to the Petitioners and the public in general. If the privatization of the POC will be allowed to proceed pending resolution of this Petition, even during the initial phase of its implementation, the public will be deprived of free or affordable health service provided by the POC. 210. In addition, during the process of privatization, some employees of the POC, if not all, will be in danger of dismissal from employment. As a result, POCs patients will also be affected by the diminished service and care as well as the corresponding increase in fees and charges. 211. And not only the public will suffer such grave and irreparable injury. If the Court grants this petition, without a TRO and/or writ of preliminary injunction, the Respondent-Consortium will also necessarily incur expenses in the process of implementing the privatization of the POC, which later on will be ultimately charged to the public. 212. Thus, the issuance of the TRO and/or Writ of Preliminary Injunction is imperative to protect the interest of, and prevent irreparable injury to the parties and the public. 213. More importantly, the allegations of the Petition clearly show that there exists a right of Petitioners that needs to be protected
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and are entitled to the relief prayed for in this Petition, and part of such relief consists in restraining the Respondents, and all persons acting under their direction from implementing the privatization of the POC, and that the said acts against which the writ is to be directed are violative of the Petitioners right. 214. As discussed above, the right to health, right to access to affordable health services, and right to free medical care are legally demandable rights. These rights as conferred by the Constitution are clear and unmistakable. The acts of Respondents against which the writ is to be directed are violative of aforesaid rights. 215. Privatization and commercialization of POC, a government hospital would lead to the denial of medical services to hundreds of thousands of Filipinos who are receiving such free medical care under the current POC set-up. Clearly, the violation of Petitioners rights is material and substantial. 216. There is thus an urgent and paramount necessity for the issuance of the writ, and unless this Honorable Court immediately restrains Respondents, grave or irreparable injury would be suffered by Petitioners. 217. On the other hand, restraining the implementation of the privatization of the POC would not pose damage and injury to both the Public and Private Respondents. They will not be prejudiced by the issuance of the TRO and/or Writ of Preliminary Injunction as no expenses has yet been incurred in the building of the POC and its transfer of operation to the Megawide-World Citi Consortium. 218. It would be then prudent and better to have the challenged acts of both the Public and Private Respondents to be restrained and/or enjoined pending the resolution of this Petition than to allow them to proceed and gamble with the result of this Petition.

CONCLUSION
To reiterate, this Petition raises novel questions because it poses the fundamental question of whether the States duty or responsibility to provide and ensure a basic social service such as health could be relinquished to a private entity through privatization or commercialization of a government hospital that has been devoted for the longest time to the public, especially the poor and underprivileged.
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In other words, Your Petitioners are asking that the peoples basic right to health and equitable access to affordable health services and free medical care, as mandated in the Constitution, should not be jeopardized by the States relinquishment of its duty and responsibility by privatizating and commercializing a government hospital like the Philippine Orthopedic Center that mainly caters to the poor and underprivileged in exchange for profit by a private entity under the guise of modernization. So what are the Petitioners simply saying? Put the public hospitals into the hands of people that run profit-oriented businesses, the petitioning public will only have what these moguls think they deserve occasional dole-outs amidst millions of patients in dire needs of services. Let us not kid ourselves that privatization is all about the common good. The tragedy of the commons did not happen because the commons messed up; the tragedy arose when one of them became so greedy to take all away for his or her sole benefit. Should this happen this first time with the POC, then all the rest of the government hospitals or public health facilities and services all over the country will follow this route and the health of the people and their basic right to it and access to health services will be sledgehammered to smithereens. It would spell the death knell by adding insult to injury, as it were. Thus, the bleeding and injured destitute patients in representation of themselves and in representation of all others to be similarly situated come now to this Honorable Court because they are being rushed to the emergency or operating room for profit by those who should be taking care of themselves in the first place. They are being bled or will be bled dry for commercial fees due to privatized health care service by forces preying on their miserable conditions. We know it is difficult for some to empathize when we refuse being checked at public hospitals. But the 90% of our people go through them at their hour of extreme need and misery. Because they have no choice. We have the power to choose for ourselves, and for once, being more than just being charitable but being civilized and just, for them.

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PRAYER
WHEREFORE, premises considered, Petitioners respectfully pray that the Honorable Court to: 1. ANNUL and SET ASIDE: a. the Decision of the Public Respondents to privatize or commercialize the Philippine Orthopedic Center (POC) for grave abuse of discretion amounting to lack or in excess of jurisdiction; b. ANNUL and SET ASIDE the award by the Public Respondents of the so-called Modernization of the Philippine Orthopedic Center to Private Respondents the Consortium of Megawide Construction Corporation and World Citi Medical Center for grave abuse of discretion amounting to lack or in excess of jurisdiction; 2. PROHIBIT and ORDER the public respondents to desist from further proceeding in the building, operation and transfer of the Philippine Orthopedic Center to said Private Respondents. 3. Pending resolution of the Petition, Petitioners pray for the issuance of a writ of preliminary injunction to enjoin the Public Respondents from implementing the so-called Modernization of the Philippine Orthopedic Center and its transfer of operation to the Private Respondents and for the Private Respondents to refrain from building and operating the Philippine Orthopedic Center. 4. After hearing the merits of the case, petitioners pray to permanently prohibit and enjoin the Public and Private Respondents from implementing the challenged acts, that is, the privatization of the Philippine Orthopedic Hospital, the award of the so-called Modernization of the Philippine Orthopedic Center to Private Respondents, and the building, operation and transfer of the Philippine Orthopedic Center to the Private Respondents. Other reliefs as are just and equitable under the premises are likewise prayed for. Quezon City for Manila. January 31, 2014.

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NATIONAL UNION OF PEOPLES' LAWYERS Counsel for the Petitioners 3/F Erythrina Building, No. 1 Matatag cor Maaralin Sts. Central District, Quezon City Telefax No. (632) 9206660 Email: nupl2007@gmail.com

By:

EDRE U. OLALIA IBP No. 930913 - 2/12/2013 - RSM PTR No. 7914002B - 2/13//2013 - Quezon City Roll of Attorneys No. 36971 MCLE Compliance No. IV - 0016615- 04/11/2013

JULIAN F. OLIVA, JR. IBP No. 930911- 2/12/2013 - RSM PTR No. 7914001B - 2/13/2013 - Quezon City Roll of Attorneys No. 35870 MCLE Compliance No. IV-0021476-07/26/2013

EPHRAIM B. CORTEZ IBP No. 930914 - 2/12/2013 - Isabela PTR No. 7914003 B - 2/13/2013- Quezon City Roll of Attorneys No. 41366 MCLE Compliance No. IV-0018068 - 04/25/2013

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JOBERT I. PAHILGA PTR No. 1700281 01/25/2013 - Navotas IBP No. 932139 02/28/2013 - Antique Roll of Attorneys No. 48289 MCLE Compliance No. IV-0013069 - 2/28/2013

MARIA CRISTINA P. YAMBOT PTR No. 9611432 - 01/07/2013 - RSM IBP No. 922644 - 01/08/2013 - RSM Roll of Attorneys No. 59700 MCLE Compliance No. IV 00166160- 4/11/2013

CARLOS A. MONTEMAYOR JR. PTR No. 9079645 01/07/2014 Quezon City IBP No. 951807 01/06/2014 Quezon City Roll of Attorneys No. 61087 MCLE Compliance No. IV IV-0017620 - 04/22/2013

EXPLANATION A copy of this Petition was served to parties individually through private courier due to distance involved and lack of messengerial personnel to effect personal service.

CARLOS MONTEMAYOR

COPY FURNISHED: Office of the Solicitor General 134 Amorsolo St., Legaspi Village, Makati City, 1229

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H. E. Benigno Simeon Aquino III Chairman of the NEDA Malacanang Palace, Manila Hon. Enrique T. Ona, MD. Secretary of the Department of Health DOH, San Lazaro Compound Rizal Avenue, Manila Teodoro J. Herbosa, MD. Chairman Modernization of the Philippine Orthopedic Center Prequalification, Bids and Awards Committee DOH, San Lazaro Compound Rizal Avenue, Manila Cosette C. Canilao Executive Director Public Private Partnership Center (PPC) NEDA sa QC, EDSA Diliman, Quezon City 1103 Jan Irish P. Villegas Project Manager Modernization of the Philippine Orthopedic Center NEDA sa QC, EDSA Diliman, Quezon City 1103 Arsenio M. Balisacan Director General and Vice Chairman of NEDA St. Josemaria Escriva Drive Ortigas Center, Pasig City 1605 Hon. Cesar V. Purisima Chairman of the NEDAInvestment Coordinating Committee (ICC) St. Josemaria Escriva Drive Ortigas Center, Pasig City 1605 Manuel Louie B. Ferrer Vice President for Marketing Consortium Of Megawide Construction Corp. (Megawide) and World Citi No. 20 N. Domingo Street, Barangay Valencia, Quezon City

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