ADELPHA FERNANDEZ, MARISSA DOMINGO, EUNICE OFRECIA, ROSELYN MENDOZA, ARLENE CABALLERO, ALMIRA MIRANDA, AND MARY CHRISTINE VALENTON, PETITIONERS, VS. HON. RUBEN TORRES, SECRETARY…

Petitioners Adelpha Fernandez, Marissa Domingo, Eunice Ofrecia,
Roselyn Mendoza, Arlene Caballero, Almira Miranda and Mary Christine Valenton
seek certiorari and prohibition to prohibit and restrain the Secretary
of the Department of Labor and Employment (“DOLE”) and the
Administrator of the Philippine Overseas Employment Administration
(“POEA”) from enforcing and implementing Item No. 1 of DOLE Circular
No. 01-91 dated 20 November 1991 entitled “Prescribing Additional
Requirements, Conditions and Procedures for the Deployment of Performing
Artists.”

Item No. 1 of the assailed DOLE Circular provides as follows:

“1. No
Filipino entertainer shall be deployed outside the Philippines except for
legitimate performing artists consisting of musicians, singers and members of
dance troupes. In all cases, the
performing artists must have a track record of legitimate and reputable
performance in the Philippines for at least one year. In no case shall the performing artist be below 23 years old.

The Secretary of Labor and Employment may, for justifiable reasons,
exempt performing artists from coverage hereof.”

The promulgation of DOLE Circular No. 01-91 was preceded by
public agitation (as reflected in the print media) for a total ban on
deployment of Filipino entertainers abroad, in response to the growing number
of documented reports and complaints from entertainers and their relatives
about the exploitative working conditions, harassment, forcible detention,
physical injuries, rape and even death suffered by female performing artists
and entertainers abroad. Because a
comprehensive prohibition of such deployment would visit obviously adverse
economic consequences upon the entertainment industry, the First National
Tripartite Conference for the Protection of Overseas Entertainers, attended by
representatives from the Government and from the management and labor sectors
of the entertainment community, was held last 18 November 1991. The Conference was convened to evaluate a
Government proposal for a complete interdiction of overseas deployment of
Philippine entertainers and performing artists. During this Conference, some of the problems facing Filipino
entertainers (in particular, women entertainers) abroad were discussed
openly: vulnerability to operations of
organized crime syndicates abroad; subjection to white slavery; harsh and
substandard working conditions; vulnerability to sexually transmitted diseases
and unwanted pregnancies, and so forth.^[1]
At the end of the Conference, the consensus among the management and labor
representatives which emerged was that Government should adopt a policy of selective
(rather than comprehensive) prohibition of deployment abroad of Philippine
entertainers, to avoid the adverse effects which complete prohibition would
impose on the country’s manpower export program. The labor representatives recommended that the minimum age for
performing artists seeking overseas deployment be raised from eighteen (18)
years to twenty-three (23) years.^[2]

In the present proceeding, petitioners allege themselves to be
“qualified performing artists, mostly singers and dancers,” of ages
eighteen (18) to twenty-two (22) years. Through counsel, they challenge the constitutional validity of Item No.
1 of DOLE Circular No. 01-91 and their arguments may be condensed in the
following manner:

(1)    that
Item No. 1 of DOLE Circular No. 01-91 is violative of the equal protection
clause and the due process clause of the Constitution, and the state policy on
protection of labor because Item No. 1 is arbitrary, oppressive and
discriminatory against performing artists of ages eighteen (18) to twenty-two
(22) who would otherwise be qualified for overseas employment; and

(2)    that
Item No. 1 of the mentioned DOLE Circular was promulgated by public respondent
DOLE Secretary and POEA Administrator without or in excess of their
jurisdiction or with grave abuse of discretion.

In actions involving constitutional issues, the firmly settled
rule is that a constitutional question will not be heard and resolved by the
courts unless the following requirements of judicial inquiry are met:

(1)    
the existence of an actual case or controversy;

(2)    
the party raising the constitutional issue must have a
personal and substantial interest in the resolution thereof;

(3)    
the controversy must be raised at the earliest reasonable
opportunity; and

(4)    
that the resolution of the constitutional issue must be
indispensable for the final determination of the controversy.^[3]

Appraising the present proceeding in
terms of the foregoing requirements, the Solicitor General urges that the
Petition at bar does not present a justiciable controversy for having been
filed prematurely:

“x x x petitioners, who claim to be performing artists, had
not previously applied with the Secretary of Labor for exemption from the
coverage of the Circular in line with the aforequoted provision. Said provision connotes that the prohibition
is not at all permanent or absolute. It
admits of exception. x x x. But to repeat, there is no allegation in the
petition that petitioners had previously sought exemption from the Secretary of
Labor, from the coverage of the Circular, before filing the instant
petition. Obviously, the petition must
fail for prematurity.”^[4]

The Court agrees with the Solicitor General. We note, in the first place, that Item No. 1
of the challenged DOLE Circular does not establish an absolute and
comprehensive prohibition of deployment abroad of entertainers below twenty-three
(23) years of age. Item No. 1 itself
provides that “the Secretary of Labor and Employment may, for justifiable
reasons, exempt from performing artists from coverage hereof.” The
discretionary authority here asserted by the DOLE Secretary does not purport to
be unlimited and arbitrary in nature. To the contrary, fairly explicit and precisely drawn grounds for
exempting particular performing artists from the coverage of Item No. 1 are set
out in a set of “Administrative Guidelines Implementing Department
Circular No. 01-91”.^[5]

In the second place, petitioners have failed to allege, or have
refrained from alleging, that they had previously applied to public respondent
officials for exemption from the minimum age restriction imposed by Item No. 1
of DOLE Circular No. 01-91. Necessarily, therefore, petitioners also do not allege that public
respondent officials have arbitrarily denied their applications for exemption
from the minimum age requirement or from any other requirement established by
Item No. 1. Neither have petitioners
alleged that public respondents have continually threatened to deny all and
sundry applications for exemption, so as to create a reasonable expectation
that their applications would be immediately and arbitrarily denied, should
they in fact file them. Petitioners do
assert that the exemption clause of DOLE Circular No. 01-91 is
“practically useless and [constitutes] empty verbiage.” They have
not, however, attempted to support this assertion.

The Court is not compelled to indulge in speculation that public
respondent would deny any and all applications for exemption from coverage of
DOLE Circular No. 01-91. Two (2)
important presumptions are here applicable. The first is that administrative orders and regulations are entitled to
the presumption of constitutionality.^[6]
The second is that official duty has been or will be regularly performed.^[7]

In Philippine Association of Colleges and Universities v.
Secretary of Education,^[8]
the petitioner universities and colleges challenged a regulation requiring all
private educational institutions to secure a permit to operate from the
Department of Education. The Court
dismissed the Petition for being premature, after finding that the petitioners
had in fact in their possession permits to operate and that the petition was
filed for speculative or academic purposes upon the supposition that the
petitioning institutions might be denied such permits, or have their permits
withdrawn, at some future time. The
Court held:

“Mere apprehension that the Secretary of Education might
under the law withdraw the permit of one of petitioners does not constitute a
justiciable controversy. (Cf. Com.
ex rel Watkins vs. Winchester Waterworks (Ky.) 197 S.W. 2d. 771.)

An action, like this, is brought for a positive purpose, nay, to
obtain actual and positive relief. (Salonga vs. Warner Barnes, L-­2245, January 1951). Courts do not sit to adjudicate mere
academic questions to satisfy scholarly interest therein, however
intellectually solid the problem may be. This is specially true where the issues ‘reach constitutional dimensions,
for then there comes into play regard for the court’s duty to avoid decision of
constitutional issues unless avoidance becomes evasion.’ (Rice vs. Sioux City,
U.S. Sup. Ct. Adv Rep., May 23, 1955, Law Ed., Vol. 99, p. 511).”^[9]
(Underscoring added).

To engage in judicial review, under the
facts and circumstances here obtained, in advance of official efforts to apply
the provisions of the challenged circular, upon the supposition that
petitioners’ legal rights in the premises might be denied by public respondent
officials, is too close to rendering an advisory opinion in a hypothetical case
— ­an undertaking clearly beyond the jurisdiction of this Court.^[10]

We consider, therefore, that petitioners have failed to show the
first requisite of a judicial inquiry, i.e., the existence of actual case or
controversy. This failure renders
unnecessary consideration of the other requisites of constitutional litigation.

ACCORDINGLY, for lack of a justiciable controversy, the
Court Resolved to DISMISS the Petition for Certiorari and
Prohibition. Costs against petitioners.

Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon,
Bellosillo, Melo, and Campos, Jr., JJ., concur.

Narvasa, C.J., J., on official
leave.

Gutierrez, Jr., J., please see
dissent.

Cruz, J., see concurrence.

Griño-Aquino, J., join Justice
Gutierrez dissent.

Medialdea, J., on leave.

^[1]
Minutes of the Workshop Proceedings to the National Tripartite Conference for
the Protection of Overseas Entertainers, held last 18 November 1991, and
sponsored by the DOLE and POEA.

^[2]
Ibid.

^[3]
Garcia v. Executive Secretary, 204 SCRA 516 [1991]; National Economic
Protectionism Association v. Ongpin, 171 SCRA 657 [1989]; Dumlao v.
Commission on Elections, 95 SCRA 392 [1980]; People v. Vera, 65 Phil. 56
[1937].

^[4]
Rollo, p. 35.

^[5]
Section 2 of the Administrative Guidelines provides as follows:

“Section 2. Exemptions

The following performing artists
shall be exempted from the qualifications defined in Section 1 [of DOLE
Circular 01-91].

1. Performing artists invited to
perform abroad for a charitable cause as certified by the Philippine
Embassy/Consulate;

2. Well known performing artists
booked for limited performance;

3. Well known artists on a concert
tour or in the case of well known dance troupes, on a performance tour;

4. Graduates of a regular
course/formal training obtained from a performing arts school duly certified or
accredited by the Department of Education and Culture;

5. Performing artists, singly
or as a part of a group, with a track record of local or overseas
performances in major establishments such as reputable hotels, theaters, etc.

All requests for exemption shall
be submitted to the Secretary of Labor for approval.”

Further,

“Performing artists,
regardless of age and experience who are currently in the jobsite may continue
their employment overseas until the expiry of their contracts. They may, however, be redeployed overseas
provided that:

1. their employers and performance
venue have been pre-qualified by the Philippine Embassy/Consulate [at] the
worksite;

2. they comply with processing
requirements;

3. dancers must belong to a dance
troupe.” (Underscoring supplied)

^[6]
Garcia v. The Executive Secretary, et al., G.R. No. 101273, promulgated
03 July 1992; Gonzales v. Land Bank of the Philippines, 183 SCRA 520
(1990); Philippine Association of Service Exporters, Inc. v. Drilon, 163
SCRA 386 (1988); Español v. Chairman, Philippine Veterans Administration,
137 SCRA 314 (1985); Ermita-Malate Hotel and Motel Operators Association, Inc.
v. City of Mayor of Manila, 20 SCRA 849 (1967).

^[7]
Sec. 3(m), Rule 131, Revised Rules of Court, as amended.

^[8]
97 Phil. 806 (1955). See also, e.g.,
Garcia v. Executive Secretary, 204 SCRA 516 (1991); National Economic
Protectionism Association v. Ongpin, 171 SCRA 657 (1989).

^[9]
97 Phil. at 810-811.

^[10]
Garcia v. Executive Secretary, 204 SCRA 516 at 522 (1991); Philippine
Association of Colleges and Universities v. Secretary of Education, 97
Phil. 806 at 811 (1955).

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