Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 94961 February 25, 1991
Dean MARITA V. T. REYES, Dra. JOSEPHINA A. LAZARO, and other Petitioners/members of the Faculty Staff of the University of the Philippines College of Medicine AND Members of the University Council listed in Annexes "A" and "A-1" of this Petition, petitioners,
vs.
The COURT OF APPEALS, The BOARD OF REGENTS OF THE UNIVERSITY OF THE PHILIPPINES; Hon. JOSE V. ABUEVA, President of the University of the Philippines; Hon. ERNESTO DOMINGO, Chancellor of the U.P. Manila Campus; LUZ V. TUNGPALAN, Registrar of the U.P. Manila Campus; JULIE MIRANDA, Officer-in-Charge and Administrative Officer of the Office of the Registrar of the U.P. Manila Campus; MARICAR BLANCHE; ATENODORO RUIZ, JR.; EDMUND BENNET MULDONG; MA. BERNADETTE CAROLYN SANTOS; SALVADOR VILLANUEVA and GABRIEL NAZARENO, respondents.
G.R. No. 96491 February 25, 1991
DEAN MARITA V.T. REYES, The Members of the ADMISSIONS COMMITTEE of the U.P. College of Medicine, DRA. JOSEFINA S. ANEL-LAZARO, DR. MARIO GUTIERREZ, DRA. SOLITA RAMOS, DRA. DINIA DE LEON, DRA. MERCEDES ALBA, DRA. NANETTE GANA and DRA. DIWATA REYES, petitioners,
vs.
The COURT OF APPEALS, The Hon. RUBEN T. REYES, as Presiding Judge of Branch 40 of the Regional Trial Court of the National Capital Region at Manila, MARICAR BLANCHE DECANO; ATENODORO RUIZ, JR.; EDMUND BENNET MULDONG; MA. BERNADETTE CAROLYN SANTOS; SALVADOR VILLANUEVA and GABRIEL NAZARENO, respondents.
Perfecto V. Fernandez, Jose P. Fernandez & Cristobal P. Fernandez for petitioners.
Mauricio Law Office for private respondents.
Demaree J.B. Raval, J.V. Lopez and Rolando D. Gamalinda for U.P. Board of Regents.
R E S O L U T I O N
MEDIALDEA, J.:
The controversy over the admission of certain students to the University of the Philippines College of Medicine is now presented before Us in two related petitions for resolution on the merits. The parties in both cases are practically the same.
The first petition, G.R. No. 94961, is for certiorari and prohibition with preliminary injunction and temporary restraining order. The petitioners pray for: (1) the reversal of the decision of the respondent Court of Appeals which upheld the Board of Regents' (BOR) 1031st resolution; (2) a temporary restraining order and after hearing, a writ of preliminary injunction to enjoin respondents from enforcing the questioned BOR Order and from proceeding with the charges against the Dean and Secretary of the University of the Philippines College of Medicine and enforcing their preventive suspension; and (3) a Writ of Prohibition declaring the questioned BOR Order null and void for being ultra-vires and violative of petitioners' academic freedom. In addition, they seek the disqualification of Justice Irene Cortes from participating in the deliberation of this case.
The other petition, G.R. No. 96491, is likewise for certiorari and mandamus with preliminary injunction and temporary restraining order. The petitioners seek to reverse the decision of the Court of Appeals affirming the orders of the Regional Trial Court of Manila, Branch 50, dated June 27, 1990, directing the admission of the respondent-students to the college and July 2, 1990, requiring the petitioners to show cause why they should not be held in contempt for disobeying and resisting the first court order.
Essentially, the facts giving rise to this controversy are as follows: respondent-students (students, for brevity) as then applicants to the University of the Philippines College, of Medicine (UPCM) obtained scores higher than 70 percentile in the National Medical Admission Test (NMAT) which was the cutoff score prescribed for academic year 1986-1987 by the UPCM Faculty in its meeting of January 17, 1986 as approved by the University Council (UC) on April 8, 1986. However, their scores were lower than the 90 percentile cut-off score prescribed by the UPCM Faculty in its meeting of October 8, 1986 effective for academic year 1987-88. Upon appeal of some concerned Pre-Med students, the BOR in its 996th resolution dated February 24, 1987 reverted to the NMAT cut-off score of 70 percentile. The BOR reiterated its 996th resolution in its 997th resolution dated March 24, 1987. Subsequently, the University General Counsel, pursuant to the instruction of the Chancellor, conducted an investigation on the student's case and recommended inter alia the admission of all applicants obtaining a percentile rating ranging from 70 to 90 "as a matter of right". The Dean of the UPCM and the Faculty did not heed the BOR directive for them to admit the students. This prompted the students to file a petition for mandamus with the Regional Trial Court (RTC). On June 11, 1987, the trial court issued a writ of preliminary injunction for their admission.
After the RTC issued the writ of preliminary injunction, the BOR in its 1001st meeting resolved inter alia that "the act of fixing cut-off scores in any entrance examination required in any college of the University is within the authority of the College Faculty. Any question regarding the exercise of such act should be elevated and resolved finally by the University Council of the autonomous campus." (Rollo of G.R. No. 94961, p. 33)
In the interim, the RTC's order was brought before Us in G.R. No. 78927 (University of the Philippines College of Medicine Committee Admissions, et al. v. Hon. Ruben Reyes, et al.) which We dismissed for lack of merit in the resolution of April 14, 1988. Hence, the students were admitted to the UPCM and passed three years in the college.
Before the onset of school year 1990-91, the students, upon advice of the U.P. President and burdened with "three agonizing years of uncertain relationship in the College" as well as the BOR's 1001st resolution, wrote a letter to the UPCM Faculty where they manifested that they never intended to question the Faculty's right to academic freedom; that they believed the issue was simply on the question of observance of the proper procedure in implementing admission requirements; that they felt they no longer have any moral right to pursue the court action; that they would leave to the Faculty the determination of humanitarian consideration of their case; that they apologized for offending the Faculty and that they would like to appeal for a chance to remain in the college (Rollo of G.R. No. 94961, pp. 5-7). Shortly thereafter, the students filed with the RTC a motion to dismiss and attached thereto their letter to the UPCM Faculty. In an Order dated June 15, 1990, the RTC dismissed their case with prejudice. In view of this development, the UPCM Faculty held an emergency meeting on June 22, 1990 where it denied the appeal of the students by a vote of 86 on the ground that they were not qualified for admission to the UPCM. As a result, the students filed with the RTC a motion to reconsider its order of dismissal. On June 27, 1990, the RTC issued an order for the admission of the students to the college. Whereupon, the petitioners moved to lift the ex-parte mandatory order.
Meanwhile, the BOR in its 1031st meeting dated June 28, 1990, invoking its plenary power under the Charter of the University over matters affecting university affairs, resolved to approve the admission of the students in the interest of justice and equity and to order the petitioners to admit them (Rollo of G.R. No. 94961, pp. 38-39). The petitioners questioned the said BOR order with the respondent Court of Appeals on a petition for prohibition (CA-G.R. S.P. No. 22136). The Dean and Secretary of the UPCM refused to follow the BOR directive. Consequently, the UP President issued a formal charge of Grave Misconduct against them and later, issued an Order for their Preventive Suspension.
On July 20, 1990, the RTC, on the other hand, issued an Order which (a) required petitioners to show cause why they should not be held in contempt for disobeying and resisting its order dated June 27, 1990 and (b) denied the petitioners' motion to lift injunction. Petitioners appealed these orders to the Court of Appeals by way of certiorari and prohibition (CA-G.R. S.P. No. 22344).
On August 14, 1990, the appellate court (Fourth Division) dismissed the petition for prohibition (Rollo of G.R. No. 94691, p. 508). Petitioners' motion for reconsideration was likewise denied in the resolution of August 23, 1990 (Rollo of G.R. No. 94691, pp. 569). They then came to Us in a petition for certiorari and prohibition with preliminary mandatory injunction and temporary restraining order docketed as G.R. No. 94691.
On September 5, 1990, the Court of Appeals (Thirteenth Division) dismissed the petitioners' petition for certiorari and prohibition (Rollo of G.R. No. 96491, p. 237). It ruled that the issue before the RTC has been rendered moot and academic by the decision of the court (Fourth Division) dated August 14, 1990 and that the Judge committed no grave abuse of discretion in issuing the assailed orders. Petitioners' motion for reconsideration was also denied in the resolution dated December 10, 1990 (Rollo of G.R. No. 96491, p. 231). Petitioners assailed the respondent court's decision before Us in a petition for certiorari and mandamus with preliminary injunction and temporary restraining order docketed as G.R. No. 96491.
At the outset, We agree with the respondent court (Thirteenth Division) that the issues raised before the RTC on the validity of the BOR's 996th and 997th resolution and on the students' qualification for admission to the UPCM have become moot due to the decision of the respondent court (Fourth Division) dated August 14, 1990. We meticulously reviewed the records of G.R. No. 94961 and found that in all their pleadings before the respondent court (Fourth Division), petitioners, beside assailing the questioned BOR 1031st resolution dated June 29, 1990, argued tenaciously that the students never qualified for admission. It was, thus, inevitable and proper for that court to pass upon this argument and to resolve the case in its totality considering that the resolution of the issue on the validity of the BOR 1031st resolution is inextricably linked with the issue on the qualification of the students to enter UPCM Petitioner's vehement denial of the fact that the RTC case has already been mooted by the decision of August 14, 1990 in G.R. No. 96491 cannot be given merit as their own petition in G.R. No. 94691 had admitted that the appellate court passed upon the issue raised before the RTC and even cited this fact as one of the errors committed by the court. Premises considered, the comment which We required the respondents in G.R. No. 96491 to submit pursuant to Our resolution dated January 22, 1991 could now be dispensed with.
Several issues have been presented in the herein petitions but the most basic and crucial issue to Us is whether or not the BOR could validly direct the petitioners to admit the students to the college of medicine. We rule in the affirmative.
The powers vested in the BOR and the UC by the UP Charter (Act No. 1870) are clear. To the former belongs the governance and the general powers of administration of the university (secs. 4, 5 and 6) and to the latter, the power to fix the admission requirements to any college in the university (sec. 9). On the other hand, the University Code, Title II, Chapter 43, Article 324 thereof (Rollo of G.R. No. 94961, p. 388) grants to the College Faculty the power to determine the entrance requirements of the college subject to the approval of the autonomous UC. From the foregoing, it is evident that any entrance requirement that may be imposed by the College Faculty must bear the UC's approval. Otherwise, the same becomes unenforceable.
In University of the Phil. College of Medicine Committee on Admissions, et al. v. Reyes, et al., supra, it was an undisputed fact that at the time the students took the NMAT, the new UPCM Faculty prescribed NMAT cut-off score of 90 percentile was without the UC'S approval. Consequently, the UPCM cannot legally implement any change in the NMAT cut-off score. The fact that the students knew beforehand of the 90 percentile NMAT cut-off score would not cure this defect. It follows then that the previously approved NMAT cut-off score of 70 percentile remains the prescribed passing grade. The Court of Appeals was correct to rule that:
When the Board of Regents retained the cut off score in the NMAT at 70TH percentile (p. 161, Rollo) which was the cut off score approved by the University Council on 8 April 1986 it did not exercise the power to prescribe the entrance requirements. It merely upheld the power of the University Council under the law to fix the requirements for admission to the UPCM and rendered ineffective the action of the UPCM Faculty, which attempted to exercise that power to increase the cut off score in NMAT to 90 percentile without the approval of the University Council and the President of the University in violation of Section 324 of the University Code (supra) which is very explicit on this matter. (Rollo of G.R. No. 94961, p. 511, Emphasis supplied)
The BOR only exercised its power of governance and its duty in seeing to it that all the units abide with the law, university rules and regulations. It did not assume a power which it did not possess in the first place. The BOR's 1001st resolution made this point more evident when it recognized and emphasized the UC's jurisdiction over admission matters. Since the faculty prescribed NMAT cut-off score of 90 percentile had become legally inefficacious, the students have all the right to stay in the college inasmuch as they met the cut-off score of 70 percentile imposed by the UC Such right could not be abridged or denied by the resolutions of the UC Manila dated July 20, 1990 and September 5, 1990 which sustained the Faculty's refusal to admit the students. Under the Constitution, the students have the right to select a profession or course of study subject to a fair, reasonable and equitable admission and academic requirements (Article XIV, Section 5(3)). While it may be true that the UC could ratify the acts of the College regarding admission requirements, the same should be done within a reasonable time. It is to be recalled that the controversy regarding the students' admission started in 1987. It is surprising that despite petitioners' insistence on the UC's jurisdiction over admission requirements, they did not seek recourse to it immediately. From the records, there appears to be no physical or legal hindrance to the calling for a UC meeting on the students' case. To validate these resolutions at this point in time would not be fair and equitable to the students. In the span of three years, they have proved their mettle by passing the academic requirements of the college.
Petitioners assert that the UC in its meeting dated April 8, 1986 did not approve the NMAT and its cut-off score of 70 percentile and that instead, the UC empowered the UPCM Faculty to choose any entrance examination and to set the cut-off score for the same. Such claims cannot be given credence. The minutes of the UC's meeting on that date do not support the petitioners' stand. The pertinent portion of the said minutes reads:
Approval of the Entrance Requirements of the College of Medicine — (Annex P & P-1) — Approved It was moved and seconded that the Entrance Requirements as proposed be approved. Approved. (Rollo of G.R. No 94961, p. 405, emphasis supplied)
Annexes "P" (Rollo of G. R. No. 94961, p. 690) and "P-1" (Rollo of G.R. No. 94961, p. 691) also do not show any delegation of authority to the UPCM Faculty. We quote with approval the appellate court's findings on this point:
Annex "P" refers to Memorandum 86-017 dated 27 January 1986 of the Dean, College of Medicine for the Chancellor, UP Manila, submitting the Entrance Requirements of the College (Annex "P-l") for submission to the University Council.
Attached to said memorandum is Annex "P-1" entitled "Entrance Requirements of the College of Medicine, University of the Philippines, Manila for courses leading to the degree of Doctor of Medicine" prepared by the Chairman, Admission Committee and approved for submission to the University Council by the Dean of the College of Medicine.
It will be noted, the UPCM Dean, in his memorandum 86-017 for the Chancellor, UP Manila, (Annex "P") manifested that all of the items in this submission (referring to Annex "P-l') were approved by the College Faculty in its 17 January 1986 meeting.
The minutes of the meeting of the College Faculty on 17 January 1986 does not mention the approval of an entrance requirement "to pass written test(s) of achievement and aptitude in natural sciences as prescribed by the College of Medicine Faculty."
What was actually approved in said meeting of the College of Medicine Faculty are: "NMAT has replaced CMET" and "It was moved by Dr. Talusan and seconded by Dr. Reodica that 70% be the cut off point of NMAT for all categories. The motion was carried without any objection.
Evidently, the written test(s) "as prescribed by the College of Medicine faculty" in paragraph b(3) of annex "P-l" paraphrased the approval by the UPCM faculty in its meeting on 17 January 1986 of the NMAT with a cut off score of 70%.
The clause "as prescribed by the College of Medicine faculty" cannot possibly be interpreted as a delegation or grant of authority to prescribe the written test(s) of achievement and aptitude in natural sciences without the approval of the University Council. The clause is worded in the past tense and can only refer to an accomplished act of the faculty which in the light of the memorandum of the UPCM Dean (Annex "P") refers to the NMAT with a cut off score of 70% approved by the UPCM faculty on 17 January 1986. (Rollo of G.R. No. 94961, p. 569)
Petitioners remonstrate against the respondent court's mention of the aforesaid annexes which it obtained from the UPCM directly without informing the petitioners. They aver that these annexes were not on record. We do not see this as an error. The fact is that petitioners submitted the minutes of April 8, 1986 meeting of the UC where the subject annexes were cited. Hence, these annexes were on record except that no copies of the same were submitted. The appellate court's resourcefulness in securing copies of these annexes was meant to let the records speak the truth. Such initiative should be commended rather than condemned. Besides, petitioners failed to show that they sustained substantial injury due to the court's action.
Moreover, the then Ex-Officio Secretary of the UC, UP Manila, Dr. Sofronio P. San Juan executed an affidavit which corroborated the appellate court's findings. Thus, he stated:
5. At the said meeting, when the University Council took up Item No. 8 in the Agenda regarding the entrance requirements of the UP College of Medicine for the courses leading to the degree of Doctor of Medicine, the members of the College of Medicine Admissions Committee discussed and explained its proposal to adopt the National Medical Admissions Test NMAT rating of seventy (70%) percentile as the cut-off score as one of the entrance requirements of students seeking admission to the UP College of Medicine, instead of the national cut-off score of forty-five (45%) percentile.
6. Upon motion made by Prof. ANTONIO TALUSAN to adopt the NMAT rating of seventy (70%) percentile, instead of the national cut-off rating of forty-five (45%) percentile, as the cut-off score for students seeking admission to the UP College of Medicine, which was duly seconded by Dr. ROBERTO REODICA JR., who was then the Chairman of the Admissions Committee of the College of Medicine, the University Council approved the motion and adopted the aforesaid proposal.
7. While it may be true that the details of the discussion in the proposal to increase the national cut-off score of forty-five (45%) percent to seventy (70%) percent were not embodied in the minutes, it is no less true that the aforesaid proposal was discussed, moved for adoption and duly approved by the members of the University Council present at the meeting.
8. Being the then Secretary of the University Council of UP Manila on the 08 April 1986 meeting, I scribbled handwritten notes on my copy of the hand-outs based on the deliberations on the floor, which now form part of the official book-bound copy of the minutes deposited in the Office of the UP-Manila Registrar.
A certified true xerox copy of the hand-outs bearing my handwritten notes is hereto attached as Annex "A" and made an integral part hereof.
9. This Affidavit is executed to attest to the truthfulness of all the foregoing facts and to prove that at the meeting of the UP-Manila University Council held on 08 April 1986, at the BSLR East, after the members of the UP College of Medicine Admissions Committee discussed and explained their proposal to adopt the NMAT rating of seventy (70%) percentile as the cut-off score for students seeking admission to the UP College of Medicine, which is a big leap from the national cut-off score of forty-five (45%) percent for all other medical colleges in the Philippines, Prof. ANTONIO TALUSAN moved for its adoption and was duly seconded by Dr. ROBERTO REODICA JR., and was duly approved by the members of the University Council present, as well as for all legal intents and purposes. (Rollo of G.R. No. 94961, pp. 688-689)
We are, likewise, unconvinced by petitioners' arguments that the BOR's 1031st is contrary to justice and equity because the students themselves judicially confessed that they have no right to admission. In their letter to the Faculty, copy furnished the trial court, the students stated that "(they) feel that (they) no longer have any moral right to further pursue court action" and that "(they) cannot continue the court case without any moral leg to stand on." (Rollo of G.R. No. 94961, pp. 5-6). The student's aforesaid feeling does not amount to a categorical admission of the absence of a legal right. Somehow, there is still a tinge of doubt expressed in the statement rather than a firm conviction on the students' part that indeed they do not possess any right to admission. Even assuming that an admission was made, the same cannot be accepted as it involves a conclusion of law based on the students' misapprehension of their legal right. We find that the letter appears to be predicated more on an overwhelming sense of hopelessness in view of the circumstances which they perceived to be against them like the BOW's 1001st resolution and the "three agonizing years of uncertain relationship spent in the college" (see letter, supra) than a realization of the absence of a right. The records show a few of the difficulties the students encountered.
x x x x x x x x x
(2) Respondent Reyes (now one of petitioners in these cases upon being informed that the students would be enrolled that day) ordered the security guards to prevent the six students from entering the premises of the College.
(3) When Chancellor Domingo allowed the students to enrol, respondent Reyes, in a written note (Annex "B"), advised the Cashier of U.P. Manila to defer acceptance of any payment from the students.
x x x x x x x x x
(5) Despite the July 5, 1990 letter of the University Registrar to respondent Reyes which categorically states that the registration of the students is valid, the Form 5's (Dean's Copy) of the students were returned to the University Registrar with the statement that they were not qualified to be admitted to the Medicine Program. (Rollo of 94961, p. 614)
and
3. Before, and after, the filing of this Petition on July 5, 1990, the Intervenors have experienced at the hands of the Petitioners various attempts to frustrate their admission to their classes with full privileges as duly enrolled students, to wit:
Intervenor Decano — on July 9, 1990, Doctor Napoleon Apolinario, Chairman of the Department of Orthopedics told Decano that she will not be admitted to her classes. Decano was also transferred to another student block (another group of students) in the Department of Medicine after she was told she cannot rotate in the Section of Neurology.
Intervenors Muldong and Nazareno — after the completion of their rotation in the Department of Ear, Nose and Throat, they were told that their grades will be withheld until after the resolution of the case.
Intervenors Santos, Ruiz and Villanueva — From July 9 to 20, 1990 (for Intervenors Santos and Ruiz), and from July 2 to 6,1990 (for Intervenor Villanueva), they were repeatedly told by Dr. Mario Gutierrez, Chairman of the Department of Family Medicine and by Dr. Mila Barzaga of the same Department that they should not attend classes in this Department because they have not been admitted as students of the College. (Rollo of G.R. No. 94961, p. 575).
Considering such antagonistic conditions, We can empathize with the students' mental anxiety and emotional strain in their three years in college in the company of some professors who looked down on them as academic pretenders. Furthermore, the students were pressed for time as they have only one more year before graduation. These circumstances combined with the advice of the U.P. President unduly influenced the students to write this reconciling letter.
With Our findings in these cases, petitioners' argument that the BOR violated their academic freedom cannot be sustained. The individual faculty member has the freedom to pursue his studies in his particular specialty and thereafter to make known or publish the result of his endeavors without fear that retribution would be visited on him in the event that his conclusions are found distasteful or objectionable to the powers that be, whether in the political, economic, or academic establishments (Garcia v. The Faculty Admission Committee, Loyola School of Theology, L-40779, November 28, 1975, 68 SCRA 277). In contrast, the University has the academic freedom to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study (Garcia case, ibid, citing Justice Frankfurter's concurring opinion in Sweezy v. New Hampshire, 354 US 234, 263 [19571). As a corporate body, the University has entrusted to its academic staff the de facto control of its function of admission and examination of students (see Garcia, ibid). Petitioners now claim to be in charge of that function with respect to fixing the admission requirements in the college. We disagree. Under the UP Charter, the power to fix admission requirements is vested in the University Council of the autonomous campus which is composed of the President of the University of the Philippines and of all instructors holding the rank of professor, associate professor or assistant professor (Section 9, Act 1870). Consequently, the UC alone has the right to protest against any unauthorized exercise of its power. Petitioners cannot impugn these BOR directives on the ground of academic freedom inasmuch as their rights as university teachers remain unaffected. As succinctly explained by the appellate court:
Under the UP Charter, the power to fix the requirements for admission to any college of the university is vested in the University Council (Sec. 9). The power to prescribe the courses of study is vested in the University Council subject to the approval of the Board of Regents (Sec. 9). The power to appoint the academic staff, fix their compensation, hours of service and other conditions is vested in the Board of Regents [Sec. 6(e)]. The power to allocate the income among the different categories of expenditures is vested in the Board of Regents [Sec. 6(a)].
Academic freedom may be asserted by the University Council or by the Board of Regents or both in so far (sic) as it relates to the functions vested in them by law which are essential to institutional academic freedom.1âwphi1
The academic freedom claimed by the faculty to have been violated by the Board of Regents when it issued the questioned order is related to the right of the University to fix admission requirements. This right and power to fix admission requirements is clearly vested by law in the University Council. The College Faculty was merely empowered by the Board of Regents under Article 324 of the University Code to initially determine the admission requirements, subject to the approval of the University Council and the President of the University.
The questioned order of the Board of Regents in upholding the admission requirement approved by the University Council in 1986 is supportive of right of the University Council to fix or approve admission requirements, against the UPCM faculty and Dean who changed the admission requirements approved by the University Council without following the prescribed rules and procedures of the University. (Rollo of G.R. No. 94961, p. 513).
One final note. While We recognize and affirm the BOR's power of governance in the instant petitions, We, however, can not give Our imprimatur to its claim of plenary power over admission requirements. Such claim has no basis in law. The UC has the final say in admission requirements provided the same conforms with law, rules and regulations of the university. In the event the power is abused or misused, it becomes the duty of the BOR, being the highest governing body in the university, to step in and to correct the anomaly.
ACCORDINGLY, the petitions are DISMISSED and the decisions of the Court of Appeals dated August 14, 1990 and September 5, 1990 are hereby AFFIRMED.
SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Griño-Aquino, Regalado and Davide, Jr., JJ., concur.
Melencio-Herrera, and Sarmiento, JJ., took no part.
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