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[G.R. No. 129098. December 6, 2006.

] the DA Regional Director, petitioner's fishpond operation was not covered by a fishpond lease
agreement or application. Governor Lapid also referred to the certification by the Municipal Health
Officer of Sasmuan issued before the actual demolition of the fishpond, describing it as a nuisance
AMELIA CABRERA, petitioner, vs. MANUEL LAPID, FERNANDO per se and recommending its abatement. 8
BALTAZAR, REYNALDO F. CABRERA and DIONY VENTURA,
respondents. On 13 May 1996, the Ombudsman issued the assailed Resolution, dismissing petitioner's
complaint. The dismissal was based on the declaration that the fishpond was a nuisance per se
and, thus, may be abated by respondents in the exercise of the police power of the State. 9

Petitioner sought reconsideration of the Resolution, arguing that under Sec. 149 of Republic Act
DECISION (R.A.) No. 7160, otherwise known as the Local Government Code of 1991, the exclusive authority
to grant fishery privileges is vested in the municipalities. Petitioner also questioned the certification
by the Municipal Health Officer, alleging that the same was issued before the ocular inspection of
the property which took place only on the day of the demolition. Petitioner also contended that a
TINGA, J p: judicial proceeding was necessary to determine whether the property indeed had caused the
flooding. 10 Respondents filed separate oppositions to petitioner's motion for reconsideration. 11
Petitioner filed a reply to the opposition 12 and respondent Governor Lapid filed a rejoinder to the
The instant petition for review on certiorari seeks the reversal of the Resolution 1 dated 13 May reply. 13
1996 and the Order 2 dated 21 March 1997, both issued by the Office of the Ombudsman. The
Resolution dismissed the complaint-affidavit filed by petitioner against respondents and the Order In the Order dated 21 March 1997, the Ombudsman affirmed its 13 May 1996 Resolution. It ruled
denied her motion for reconsideration. that the repealing clause of R.A. No. 7160 expressly repealed only Sec. 2, 6 and 29 of Presidential
Decree (P.D.) No. 704 so that in harmonizing the remaining provisions of P.D. No. 704 and the
The instant petition originated from a Complaint-Affidavit 3 filed in November 1995 by petitioner provisions of R.A. No. 7160 applicable to the grant of fishery privileges, the Bureau of Fisheries
Amelia M. Cabrera with the Office of the Ombudsman ("Ombudsman"). Named respondents were and Aquatic Resources (BFAR) is the government agency authorized to grant fishpond license or
Manuel Lapid, Fernando Baltazar, Reynaldo F. Cabrera and Superintendent Diony Ventura, permit in areas not identified as municipal waters or not declared as alienable or disposable by
respectively, in their capacities as Governor of Pampanga, Mayor of Sasmuan, Pampanga, Vice- the Department of Environment and Natural Resources (DENR). Since it appears from DENR
Mayor of Sasmuan, Pampanga and Superintendent of the Philippine National Police (PNP)- records that the subject property has not been declared disposable or included in areas devoted
Region 3, Pampanga. In her three(3)-page affidavit, petitioner accused respondents of violating for fishpond development, the Ombudsman concluded that the lease agreement entered into by
Section 3(e) of the Anti-Graft and Corrupt Practices Act and Article 324 of the Revised Penal petitioner was void ab initio. In view of the illegality of the lease agreement, the Ombudsman ruled
Code. that its demolition was justified. The Ombudsman described the demolition as a valid exercise of
In her Complaint-Affidavit, petitioner stated that she entered into a lease agreement with the police power and in accordance with the provision of Sec. 28 of P.D. No. 704 directing the removal
Municipality of Sasmuan over a tract of land for the purpose of devoting it to fishpond operations. of any fishpen or fishpond that obstructed the free navigation of a stream or lake. It also upheld
According to petitioner, she had spent approximately P5,000,000.00 for its construction before the the authority of the district health officer to determine the abatement of a nuisance without need
fishpond operations commenced in August 1995. A month later, petitioner learned from of judicial proceedings. 14
newspaper reports of the impending demolition of her fishpond as it was purportedly illegal and Petitioner elevated the matter to this Court via a petition for review on certiorari under Rule 45 of
blocked the flow of the Pasak River. Thus, petitioner sent the fishpond administrator to dissuade the Rules of Court to assail the 13 May 1996 Resolution and 21 March 1997 Order of the
respondents from destroying her property. 4 Ombudsman. Petitioner subsequently filed an amended petition for review on certiorari to implead
Despite pleas from petitioner, respondents ordered the destruction of petitioner's fishpond. The the Ombudsman as respondent, although in a petition for review on certiorari, the tribunal whose
property was demolished on 10 October 1995 by dynamite blasting. Petitioner alleged that the issuance is assailed need not be impleaded as respondent. acEHSI
demolition was purposely carried out in the presence of media representatives and other The petition imputes the following errors on the Ombudsman:
government officials to gain media mileage. Petitioner imputed evident bad faith on respondents
Mayor Baltazar and Vice-Mayor Cabrera in allowing the destruction of the fishpond despite their I.
prior knowledge of the existence of the lease agreement. She also charged respondents Governor
Lapid and Senior Superintendent Ventura with gross inexcusable negligence for ordering the THE OFFICE OF THE OMBUDSMAN ERRED AND EXCEEDED ITS
destruction of the fishpond without first verifying its legality. 5 AUTHORITY IN RULING THAT THE LEASE CONTRACT BETWEEN THE
MUNICIPALITY OF SASMUAN AND PETITIONER IS NULL AND VOID.
At the preliminary investigation, respondents, except Senior Superintendent Ventura, submitted
counter-affidavits, denying the accusations against them. In the counter-affidavit jointly filed by II.
Mayor Baltazar and Vice-Mayor Cabrera, they insisted that contrary to petitioner's claim, the
fishpond was an illegal structure because it was erected on the seashore, at the mouth of the THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT THE
Pasak River, and sat on an inalienable land. They claimed that the demolition was done by the DEMOLITION OF THE FISHPOND WAS VALIDLY MADE BY VIRTUE OF
Task Force Bilis Daloyupon the directive of then President Fidel V. Ramos. 6 THE DECLARATION BY THE HEALTH OFFICER THAT IT WAS A
NUISANCE PER SE.
In his Counter-Affidavit, 7 Governor Lapid averred that the contract of lease between petitioner
and the Municipality of Sasmuan, represented by then Mayor Abelardo Panlaqui, was executed III.
two weeks before respondent Mayor Baltazar took his oath of office in 1995. Governor Lapid also
argued that under the law, the Department of Agriculture (DA) is the government agency
authorized to enter into licensing agreements for fishpond operations, and as per certification by
THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT THE By grave abuse of discretion is meant capricious and whimsical exercise of judgment as is
DEMOLITION IS PART OF THE PROPER EXERCISE OF THE POLICE equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse
POWER OF THE STATE. of discretion as when the power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a
IV. positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of
law. 24
THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT
PETITIONER WAS GIVEN DUE NOTICE AND HEARING BEFORE THE Grave abuse of discretion should be differentiated from an error in judgment. An error of judgment
FISHPOND WAS BLASTED. is one which the court may commit in the exercise of its jurisdiction, and which error is reversible
only by an appeal. As long as the court acts within its jurisdiction, any alleged errors committed in
V. the exercise of its discretion will amount to nothing more than mere errors of judgment, correctible
by an appeal or a petition for review under Rule 45 of the Rules of Court. An error of jurisdiction
THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT
is one where the act complained of was issued by the court without or in excess of jurisdiction and
PROBABLE CAUSE DOES NOT EXIST TO INDICT RESPONDENTS
which error is correctible only by the extraordinary writ of certiorari. 25
FOR VIOLATION OF THE SUBJECT OFFENSES. 15
The other errors raised by petitioner pertain to the Ombudsman's opinion on the lack of probable
Clearly, this is an appeal from the questioned issuances of the Ombudsman. However, such direct
cause to indict respondents. These are purported errors in judgment which can be corrected by
resort to this Court from a resolution or order of the Ombudsman is not sanctioned by any rule of
an appeal, although not via a direct appeal to this Court. Direct resort to this Court may be had
procedure.
only through the extraordinary writ ofcertiorari and upon showing that the Ombudsman committed
Neither can petitioner avail of Sec. 27 16 of R.A. No. 6770, otherwise known as The Ombudsman grave abuse of discretion, which petitioner failed to demonstrate.
Act of 1989. The provision allowed direct appeals in administrative disciplinary cases from the
Absent any grave abuse of discretion tainting it, the courts will not interfere with the Ombudsman's
Office of the Ombudsman to the Supreme Court. The right to appeal is granted only in respect to
supervision and control over the preliminary investigation conducted by him. 26 It is beyond the
orders or decisions of the Ombudsman in administrative cases. 17 The provision does not cover
ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or
resolutions of the Ombudsman in criminal cases. More importantly, Sec. 27 of R.A. No. 6770
dismissing a complaint filed before it.27 The rule is based not only upon respect for the
insofar as it allowed a direct appeal to this Court was declared unconstitutional in Fabian v. Hon.
Desierto. 18 investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman
but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered
However, an aggrieved party in criminal actions is not without any recourse. Where grave abuse by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the
of discretion amounting to lack or excess of jurisdiction taints the findings of the Ombudsman on Office of the Ombudsman with regard to complaints filed before it, in much the same way that the
the existence of probable cause, the aggrieved party may file a petition for certiorari under Rule courts would be extremely swamped if they would be compelled to review the exercise of
65. 19 The remedy from resolutions of the Ombudsman in preliminary investigations of criminal discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an
cases is a petition for certiorari under Rule 65, not a petition for review on certiorari under Rule information in court or dismiss a complaint by a private complainant. 28
45. 20
WHEREFORE, the instant petition for review on certiorari is DENIED. No costs. ICTaEH
But in this case, petitioner has taken the position that the Ombudsman has decided questions of
SO ORDERED.
substance contrary to law and the applicable decisions of the Supreme Court. That is a ground
under a Rule 45 petition. Indeed, from a reading of the assignment of errors, it is clear that [G.R. No. 166494. June 29, 2007.]
petitioner does not impute grave abuse of discretion to the Ombudsman in issuing the assailed
Resolution and Order. Rather, she merely questions his findings and conclusions. As stated
earlier, direct appeal to the Supreme Court via a petition for review on certiorari is not sanctioned CARLOS SUPERDRUG CORP., doing business under the name and
by any rule of procedure. By availing of a wrong remedy, the petition should be dismissed outright. style "Carlos Superdrug", ELSIE M. CANO, doing business under the
TAIDHa name and style "Advance Drug", Dr. SIMPLICIO L. YAP, JR., doing
business under the name and style "City Pharmacy", MELVIN S.
Even if the Court treats the instant appeal as a petition for certiorari under Rule 65, its dismissal
DELA SERNA, doing business under the name and style "Botica dela
is nevertheless warranted because petitioner failed to present, much more substantiate, any grave
Serna", and LEYTE SERV-WELL CORP., doing business under the
abuse of discretion on the part of the Ombudsman.
name and style "Leyte Serv-Well Drugstore", petitioners, vs.
A careful reading of the questioned Resolution reveals that the Ombudsman dismissed petitioner's DEPARTMENT OF SOCIAL WELFARE and DEVELOPMENT (DSWD),
criminal complaint because respondents had validly resorted to the police power of the State when DEPARTMENT OF HEALTH (DOH), DEPARTMENT OF FINANCE
they effected the demolition of the illegal fishpond in question following the declaration thereof as (DOF), DEPARTMENT OF JUSTICE (DOJ), and DEPARTMENT OF THE
a nuisance per se. Thus, the Ombudsman was of the opinion that no violation of Section 3(e) 21 INTERIOR and LOCAL GOVERNMENT (DILG), respondents.
of the Anti-Graft and Corrupt Practices Act or of Article 324 22 of the Revised Penal Code was
committed by respondents. In the words of the Ombudsman, "those who participated in the
blasting of the subject fishpond were only impelled by their desire to serve the best interest of the
general public; for the good and the highest good." 23 DECISION
AZCUNA, J p: Bureau of Internal Revenue (BIR) and approved by the Department of
Finance (DOF). 9 DSITEH
This is a petition 1 for Prohibition with Prayer for Preliminary Injunction assailing the
On July 10, 2004, in reference to the query of the Drug Stores Association of the Philippines
constitutionality of Section 4 (a) of Republic Act (R.A.) No. 9257, 2 otherwise known as the
(DSAP) concerning the meaning of a tax deduction under the ExpandedSenior Citizens Act, the
"Expanded Senior Citizens Act of 2003".
DOF, through Director IV Ma. Lourdes B. Recente, clarified as follows:
Petitioners are domestic corporations and proprietors operating drugstores in the Philippines.
1) The difference between the Tax Credit (under the Old Senior Citizens
TCcSDE
Act) and Tax Deduction (under the Expanded Senior Citizens Act).
Public respondents, on the other hand, include the Department of Social Welfare and
1.1. The provision of Section 4 of R.A. No. 7432 (the old Senior
Development (DSWD), the Department of Health (DOH), the Department of Finance (DOF), the
Citizens Act) grants twenty percent (20%) discount from all
Department of Justice (DOJ), and the Department of the Interior and Local Government (DILG)
establishments relative to the utilization of transportation
which have been specifically tasked to monitor the drugstores' compliance with the law;
services, hotels and similar lodging establishment, restaurants
promulgate the implementing rules and regulations for the effective implementation of the law; and
and recreation centers and purchase of medicines anywhere in
prosecute and revoke the licenses of erring drugstore establishments.
the country, the costs of which may be claimed by the private
The antecedents are as follows: establishments concerned as tax credit.

On February 26, 2004, R.A. No. 9257, amending R.A. No. 7432, 3 was signed into law by Effectively, a tax credit is a peso-for-peso deduction from a
President Gloria Macapagal-Arroyo and it became effective on March 21, 2004. Section 4 (a) of taxpayer's tax liability due to the government of the amount of
the Act states: discounts such establishment has granted to a senior citizen.
The establishment recovers the full amount of discount given to
SEC. 4. Privileges for the Senior Citizens. The senior citizens shall be a senior citizen and hence, the government shoulders 100% of
entitled to the following: the discounts granted.

(a) the grant of twenty percent (20%) discount from all establishments It must be noted, however, that conceptually, a tax credit
relative to the utilization of services in hotels and similar lodging scheme under the Philippine tax system, necessitates that prior
establishments, restaurants and recreation centers, and purchase of payments of taxes have been made and the taxpayer is
medicines in all establishments for the exclusive use or enjoyment of senior attempting to recover this tax payment from his/her income tax
citizens, including funeral and burial services for the death of senior due. The tax credit scheme under R.A. No. 7432 is, therefore,
citizens; inapplicable since no tax payments have previously occurred.

xxx xxx xxx 1.2. The provision under R.A. No. 9257, on the other hand,
provides that the establishment concerned may claim the
The establishment may claim the discounts granted under (a), (f), (g) and discounts under Section 4 (a), (f), (g) and (h) as tax deduction
(h) as tax deduction based on the net cost of the goods sold or services from gross income, based on the net cost of goods sold or
rendered: Provided, That the cost of the discount shall be allowed as services rendered.
deduction from gross income for the same taxable year that the discount
is granted. Provided, further, That the total amount of the claimed tax Under this scheme, the establishment concerned is allowed to
deduction net of value added tax if applicable, shall be included in their deduct from gross income, in computing for its tax liability, the
gross sales receipts for tax purposes and shall be subject to proper amount of discounts granted to senior citizens. Effectively, the
documentation and to the provisions of the National Internal Revenue government loses in terms of foregone revenues an amount
Code, as amended. 4 equivalent to the marginal tax rate the said establishment is
liable to pay the government. This will be an amount equivalent
On May 28, 2004, the DSWD approved and adopted the Implementing Rules and Regulations of to 32% of the twenty percent (20%) discounts so granted. The
R.A. No. 9257, Rule VI, Article 8 of which states: establishment shoulders the remaining portion of the granted
discounts.
Article 8. Tax Deduction of Establishments. The establishment may
claim the discounts granted under Rule V, Section 4 Discounts for It may be necessary to note that while the burden on [the]
Establishments; 5 Section 9, Medical and Dental Services in Private government is slightly diminished in terms of its percentage
Facilities[,] 6 and Sections 10 7 and 11 8 Air, Sea and Land share on the discounts granted to senior citizens, the number of
Transportation as tax deduction based on the net cost of the goods sold or potential establishments that may claim tax deductions, have
services rendered. Provided, That the cost of the discount shall be allowed however, been broadened. Aside from the establishments that
as deduction from gross income for the same taxable year that the discount may claimtax credits under the old law, more establishments
is granted; Provided, further, That the total amount of the claimed tax were added under the new law such as: establishments
deduction net of value added tax if applicable, shall be included in their providing medical and dental services, diagnostic and laboratory
gross sales receipts for tax purposes and shall be subject to proper services, including professional fees of attending doctors in all
documentation and to the provisions of the National Internal Revenue private hospitals and medical facilities, operators of domestic air
Code, as amended; Provided, finally, that the implementation of the tax and sea transport services, public railways and skyways and bus
deduction shall be subject to the Revenue Regulations to be issued by the transport services. cDaEAS
A simple illustration might help amplify the points discussed 3) The 20% discount on medicines violates the constitutional guarantee in
above, as follows: Article XIII, Section 11 that makes "essential goods, health and
other social services available to all people at affordable cost."
Tax Deduction Tax Credit 14
Gross Sales x x x x x x x x x x x x
Petitioners assert that Section 4 (a) of the law is unconstitutional because it constitutes deprivation
Less: Cost of goods sold x x x x x x x x x x of private property. Compelling drugstore owners and establishments to grant the discount will
result in a loss of profit and capital because 1) drugstores impose a mark-up of only 5% to 10%
on branded medicines; and 2) the law failed to provide a scheme whereby drugstores will be justly
compensated for the discount.
Net Sales x x x x x x x x x x x x
Less: Operating Expenses:
Tax Deduction on Discounts x x x x -- Examining petitioners' arguments, it is apparent that what petitioners are ultimately questioning is
the validity of the tax deduction scheme as a reimbursement mechanism for the twenty percent
Other deductions: x x x x x x x x (20%) discount that they extend to senior citizens.
Based on the afore-stated DOF Opinion, the tax deduction scheme does not fully reimburse
petitioners for the discount privilege accorded to senior citizens. This is because the discount is
Net Taxable Income x x x x x x x x x x
treated as a deduction, a tax-deductible expense that is subtracted from the gross income and
Tax Due x x x x x x results in a lower taxable income. Stated otherwise, it is an amount that is allowed by law 15 to
reduce the income prior to the application of the tax rate to compute the amount of tax which is
Less: Tax Credit -- x x due. 16 Being a tax deduction, the discount does not reduce taxes owed on a peso for peso basis
but merely offers a fractional reduction in taxes owed.

Net Tax Due -- x x Theoretically, the treatment of the discount as a deduction reduces the net income of the private
establishments concerned. The discounts given would have entered the coffers and formed part
As shown above, under a tax deduction scheme, the tax deduction on of the gross sales of the private establishments, were it not for R.A. No. 9257.
discounts was subtracted from Net Sales together with other deductions
which are considered as operating expenses before the Tax Due was The permanent reduction in their total revenues is a forced subsidy corresponding to the taking of
computed based on the Net Taxable Income. On the other hand, under a private property for public use or benefit. 17 This constitutes compensable taking for which
tax credit scheme, the amount of discounts which is the tax credit item, petitioners would ordinarily become entitled to a just compensation. TIcAaH
was deducted directly from the tax due amount. 10
Just compensation is defined as the full and fair equivalent of the property taken from its owner
Meanwhile, on October 1, 2004, Administrative Order (A.O.) No. 171 or the Policies and by the expropriator. The measure is not the taker's gain but the owner's loss. The word just is
Guidelines to Implement the Relevant Provisions of Republic Act 9257, otherwise known as the used to intensify the meaning of the word compensation, and to convey the idea that the
"Expanded Senior Citizens Act of 2003" 11 was issued by the DOH, providing the grant of twenty equivalent to be rendered for the property to be taken shall be real, substantial, full and ample. 18
percent (20%) discount in the purchase of unbranded generic medicines from all establishments
dispensing medicines for the exclusive use of the senior citizens. A tax deduction does not offer full reimbursement of the senior citizen discount. As such, it would
not meet the definition of just compensation. 19
On November 12, 2004, the DOH issued Administrative Order No. 177 12 amending A.O. No.
171. Under A.O. No. 177, the twenty percent discount shall not be limited to the purchase of Having said that, this raises the question of whether the State, in promoting the health and welfare
unbranded generic medicines only, but shall extend to both prescription and non-prescription of a special group of citizens, can impose upon private establishments the burden of partly
medicines whether branded or generic. Thus, it stated that "[t]he grant of twenty percent (20%) subsidizing a government program.
discount shall be provided in the purchase of medicines from all establishments dispensing
The Court believes so.
medicines for the exclusive use of the senior citizens".
The Senior Citizens Act was enacted primarily to maximize the contribution of senior citizens to
Petitioners assail the constitutionality of Section 4 (a) of the Expanded Senior Citizens Act based
nation-building, and to grant benefits and privileges to them for their improvement and well-being
on the following grounds: 13
as the State considers them an integral part of our society. 20
1) The law is confiscatory because it infringes Art. III, Sec. 9 of the
The priority given to senior citizens finds its basis in the Constitution as set forth in the law itself.
Constitution which provides that private property shall not be
Thus, the Act provides:
taken for public use without just compensation; EAcHCI
SEC. 2. Republic Act No. 7432 is hereby amended to read as follows:
2) It violates the equal protection clause (Art. III, Sec. 1) enshrined in our
Constitution which states that "no person shall be deprived of SECTION 1. Declaration of Policies and Objectives. Pursuant to Article
life, liberty or property without due process of law, nor shall any XV, Section 4 of the Constitution, it is the duty of the family to take care of
person be denied of the equal protection of the laws;" and its elderly members while the State may design programs of social security
for them. In addition to this, Section 10 in the Declaration of Principles and
State Policies provides: "The State shall provide social justice in all phases
of national development." Further, Article XIII, Section 11, provides: "The deduction, only P2.53 per tablet will be refunded and not the full amount of the discount which is
State shall adopt an integrated and comprehensive approach to health P7.92. In short, only 32% of the 20% discount will be reimbursed to the drugstores. 28
development which shall endeavor to make essential goods, health and
other social services available to all the people at affordable cost. There Petitioners' computation is flawed. For purposes of reimbursement, the law states that the cost of
shall be priority for the needs of the underprivileged sick, elderly, disabled, the discount shall be deducted from gross income, 29 the amount of income derived from all
women and children." Consonant with these constitutional principles the sources before deducting allowable expenses, which will result in net income. Here, petitioners
following are the declared policies of this Act: tried to show a loss on a per transaction basis, which should not be the case. An income statement,
showing an accounting of petitioners' sales, expenses, and net profit (or loss) for a given period
xxx xxx xxx could have accurately reflected the effect of the discount on their income. Absent any financial
statement, petitioners cannot substantiate their claim that they will be operating at a loss should
(f) To recognize the important role of the private sector in the they give the discount. In addition, the computation was erroneously based on the assumption
improvement of the welfare of senior citizens and to actively seek that their customers consisted wholly of senior citizens. Lastly, the 32% tax rate is to be imposed
their partnership. 21 DAEIHT on income, not on the amount of the discount.
To implement the above policy, the law grants a twenty percent discount to senior citizens for Furthermore, it is unfair for petitioners to criticize the law because they cannot raise the prices of
medical and dental services, and diagnostic and laboratory fees; admission fees charged by their medicines given the cutthroat nature of the players in the industry. It is a business decision
theaters, concert halls, circuses, carnivals, and other similar places of culture, leisure and on the part of petitioners to peg the mark-up at 5%. Selling the medicines below acquisition cost,
amusement; fares for domestic land, air and sea travel; utilization of services in hotels and similar as alleged by petitioners, is merely a result of this decision. Inasmuch as pricing is a property right,
lodging establishments, restaurants and recreation centers; and purchases of medicines for the petitioners cannot reproach the law for being oppressive, simply because they cannot afford to
exclusive use or enjoyment of senior citizens. As a form of reimbursement, the law provides that raise their prices for fear of losing their customers to competition.
business establishments extending the twenty percent discount to senior citizens may claim the
discount as a tax deduction. The Court is not oblivious of the retail side of the pharmaceutical industry and the competitive
pricing component of the business. While the Constitution protects property rights, petitioners must
The law is a legitimate exercise of police power which, similar to the power of eminent domain, accept the realities of business and the State, in the exercise of police power, can intervene in the
has general welfare for its object. Police power is not capable of an exact definition, but has been operations of a business which may result in an impairment of property rights in the process.
purposely veiled in general terms to underscore its comprehensiveness to meet all exigencies and
provide enough room for an efficient and flexible response to conditions and circumstances, thus Moreover, the right to property has a social dimension. While Article XIII of the Constitution
assuring the greatest benefits. 22 Accordingly, it has been described as "the most essential, provides the precept for the protection of property, various laws and jurisprudence, particularly on
insistent and the least limitable of powers, extending as it does to all the great public needs." 23 agrarian reform and the regulation of contracts and public utilities, continuously serve as a
It is "[t]he power vested in the legislature by the constitution to make, ordain, and establish all reminder that the right to property can be relinquished upon the command of the State for the
manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or promotion of public good. 30
without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the
commonwealth, and of the subjects of the same." 24 Undeniably, the success of the senior citizens program rests largely on the support imparted by
petitioners and the other private establishments concerned. This being the case, the means
For this reason, when the conditions so demand as determined by the legislature, property rights employed in invoking the active participation of the private sector, in order to achieve the purpose
must bow to the primacy of police power because property rights, though sheltered by due or objective of the law, is reasonably and directly related. Without sufficient proof that Section 4
process, must yield to general welfare. 25 (a) of R.A. No. 9257 is arbitrary, and that the continued implementation of the same would be
unconscionably detrimental to petitioners, the Court will refrain from quashing a legislative act. 31
Police power as an attribute to promote the common good would be diluted considerably if on the
mere plea of petitioners that they will suffer loss of earnings and capital, the questioned provision
is invalidated. Moreover, in the absence of evidence demonstrating the alleged confiscatory effect
of the provision in question, there is no basis for its nullification in view of the presumption of WHEREFORE, the petition is DISMISSED for lack of merit. IDEScC
validity which every law has in its favor. 26
No costs.
Given these, it is incorrect for petitioners to insist that the grant of the senior citizen discount is
unduly oppressive to their business, because petitioners have not taken time to calculate correctly SO ORDERED.
and come up with a financial report, so that they have not been able to show properly whether or
[G.R. No. 118127. April 12, 2005.]
not the tax deduction scheme really works greatly to their disadvantage. 27

In treating the discount as a tax deduction, petitioners insist that they will incur losses because,
referring to the DOF Opinion, for every P1.00 senior citizen discount that petitioners would give, CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of
P0.68 will be shouldered by them as only P0.32 will be refunded by the government by way of a Manila HON. JOSELITO L. ATIENZA, in his capacity as Vice-Mayor of
tax deduction. cIDHSC the City of Manila and Presiding Officer of the City Council of Manila,
HON. ERNESTO A. NIEVA, HON. GONZALO P. GONZALES, HON.
To illustrate this point, petitioner Carlos Super Drug cited the anti-hypertensive maintenance drug AVELINO S. CAILIAN, HON. ROBERTO C. OCAMPO, HON. ALBERTO
Norvasc as an example. According to the latter, it acquires Norvascfrom the distributors at P37.57 DOMINGO, HON. HONORIO U. LOPEZ, HON. FRANCISCO G.
per tablet, and retails it at P39.60 (or at a margin of 5%). If it grants a 20% discount to senior VARONA, JR., HON. ROMUALDO S. MARANAN, HON. NESTOR C.
citizens or an amount equivalent to P7.92, then it would have to sell Norvasc at P31.68 which PONCE, JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F.
translates to a loss from capital of P5.89 per tablet. Even if the government will allow a tax CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL M.
ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO C. ANG,
HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ, HON. CHIKA G. GO, Enacted by the City Council 9 on 9 March 1993 and approved by petitioner City Mayor on 30
HON. VICTORIANO A. MELENDEZ, HON. ERNESTO V.P. MACEDA, March 1993, the said Ordinance is entitled
JR., HON. ROLANDO P. NIETO, HON. DANILO V. ROLEDA, HON.
GERINO A. TOLENTINO, JR., HON. MA. PAZ E. HERRERA, HON. JOEY AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR
D. HIZON, HON. FELIXBERTO D. ESPIRITU, HON. KARLO Q. OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF
BUTIONG, HON. ROGELIO P. DELA PAZ, HON. BERNARDO D. AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE
RAGAZA, HON. MA. CORAZON R. CABALLES, HON. CASIMIRO C. ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION
SISON, HON. BIENVENIDO M. ABANTE, JR., HON. MA. LOURDES M. THEREOF, AND FOR OTHER PURPOSES. 10
ISIP, HON. ALEXANDER S. RICAFORT, HON. ERNESTO F. RIVERA,
HON. LEONARDO L. ANGAT, and HON. JOCELYN B. DAWIS, in their The Ordinance is reproduced in full, hereunder:
capacity as councilors of the City of Manila, petitioners, vs. HON.
SECTION 1.Any provision of existing laws and ordinances to the contrary
PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and
notwithstanding, no person, partnership, corporation or entity shall, in the
MALATE TOURIST DEVELOPMENT CORPORATION, respondents.
Ermita-Malate area bounded by Teodoro M. Kalaw Sr. Street in the North,
Taft Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard
in the West, pursuant to P.D. 499be allowed or authorized to contract and
engage in, any business providing certain forms of amusement,
DECISION entertainment, services and facilities where women are used as tools in
entertainment and which tend to disturb the community, annoy the
inhabitants, and adversely affect the social and moral welfare of the
community, such as but not limited to:
TINGA, J p: 1.Sauna Parlors EDSAac

I know only that what is moral is what you feel good after and what is 2.Massage Parlors
immoral is what you feel bad after.
3.Karaoke Bars
Ernest Hemingway
Death in the Afternoon, Ch. 1 4.Beerhouses

It is a moral and political axiom that any dishonorable act, if performed by 5.Night Clubs
oneself, is less immoral than if performed by someone else, who would be
6.Day Clubs
well-intentioned in his dishonesty.
7.Super Clubs
J. Christopher Gerald
Bonaparte in Egypt, Ch. I 8.Discotheques
The Court's commitment to the protection of morals is secondary to its fealty to the fundamental 9.Cabarets
law of the land. It is foremost a guardian of the Constitution but not the conscience of individuals.
And if it need be, the Court will not hesitate to "make the hammer fall, and heavily" in the words of 10.Dance Halls
Justice Laurel, and uphold the constitutional guarantees when faced with laws that, though not
lacking in zeal to promote morality, nevertheless fail to pass the test of constitutionality. 11.Motels

The pivotal issue in this Petition 1 under Rule 45 (then Rule 42) of the Revised Rules on Civil 12.Inns
Procedure seeking the reversal of the Decision 2 in Civil Case No. 93-66511 of the Regional Trial
Court (RTC) of Manila, Branch 18 (lower court), 3 is the validity of Ordinance No. 7783 (the SEC. 2.The City Mayor, the City Treasurer or any person acting in behalf
Ordinance) of the City of Manila. 4 of the said officials are prohibited from issuing permits, temporary or
otherwise, or from granting licenses and accepting payments for the
The antecedents are as follows: operation of business enumerated in the preceding section.

Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged in SEC. 3.Owners and/or operator of establishments engaged in, or devoted
the business of operating hotels, motels, hostels and lodging houses. 5It built and opened Victoria to, the businesses enumerated in Section 1 hereof are hereby given three
Court in Malate which was licensed as a motel although duly accredited with the Department of (3) months from the date of approval of this ordinance within which to wind
Tourism as a hotel. 6 On 28 June 1993, MTDC filed a Petition for Declaratory Relief with Prayer up business operations or to transfer to any place outside of the Ermita-
for a Writ of Preliminary Injunction and/or Temporary Restraining Order 7 (RTC Petition) with the Malate area or convert said businesses to other kinds of business
lower court impleading as defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim (Lim), allowable within the area, such as but not limited to:
Hon. Joselito L. Atienza, and the members of the City Council of Manila (City Council). MTDC
prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited 1.Curio or antique shop
establishments, be declared invalid and unconstitutional. 8
2.Souvenir Shops
3.Handicrafts display centers rights in that: (a) it is confiscatory and constitutes an invasion of plaintiff's property rights; (b) the
City Council has no power to find as a fact that a particular thing is a nuisance per se nor does it
4.Art galleries have the power to extrajudicially destroy it; and (6) The Ordinance constitutes a denial of equal
protection under the law as no reasonable basis exists for prohibiting the operation of motels and
5.Records and music shops inns, but not pension houses, hotels, lodging houses or other similar establishments, and for
prohibiting said business in the Ermita-Malate area but not outside of this area. 14
6.Restaurants
In their Answer 15 dated 23 July 1993, petitioners City of Manila and Lim maintained that the City
7.Coffee shops
Council had the power to "prohibit certain forms of entertainment in order to protect the social and
8.Flower shops moral welfare of the community" as provided for in Section 458 (a) 4 (vii) of the Local Government
Code, 16 which reads, thus:
9.Music lounge and sing-along restaurants, with well-defined activities for
wholesome family entertainment that cater to both local and foreign Section 458.Powers, Duties, Functions and Compensation. (a) The
clientele. sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general
10.Theaters engaged in the exhibition, not only of motion pictures but also welfare of the city and its inhabitants pursuant to Section 16 of this Code
of cultural shows, stage and theatrical plays, art exhibitions, concerts and and in the proper exercise of the corporate powers of the city as provided
the like. for under Section 22 of this Code, and shall:

11.Businesses allowable within the law and medium intensity districts as xxx xxx xxx
provided for in the zoning ordinances for Metropolitan Manila, except new
warehouse or open-storage depot, dock or yard, motor repair shop,
gasoline service station, light industry with any machinery, or funeral
(4)Regulate activities relative to the use of land, buildings and structures
establishments.
within the city in order to promote the general welfare and for said purpose
SEC. 4.Any person violating any provisions of this ordinance, shall upon shall:
conviction, be punished by imprisonment of one (1) year or fine of FIVE
xxx xxx xxx
THOUSAND (P5,000.00) PESOS, or both, at the discretion of the Court,
PROVIDED, that in case of juridical person, the President, the General (vii)Regulate the establishment, operation, and maintenance of
Manager, or person-in-charge of operation shall be liable thereof; any entertainment or amusement facilities, including theatrical
PROVIDED FURTHER, that in case of subsequent violation and performances, circuses, billiard pools, public dancing schools,
conviction, the premises of the erring establishment shall be closed and public dance halls, sauna baths, massage parlors, and other
padlocked permanently. places for entertainment or amusement; regulate such other
events or activities for amusement or entertainment, particularly
SEC. 5.This ordinance shall take effect upon approval. those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the
Enacted by the City Council of Manila at its regular session today, March
same; or, prohibit certain forms of amusement or entertainment
9, 1993.
in order to protect the social and moral welfare of the community.
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis cDIaAS
supplied)
Citing Kwong Sing v. City of Manila, 17 petitioners insisted that the power of regulation spoken of
In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included in its in the above-quoted provision included the power to control, to govern and to restrain places of
enumeration of prohibited establishments, motels and inns such as MTDC's Victoria Court exhibition and amusement. 18
considering that these were not establishments for "amusement" or "entertainment" and they were
Petitioners likewise asserted that the Ordinance was enacted by the City Council of Manila to
not "services or facilities for entertainment," nor did they use women as "tools for entertainment,"
protect the social and moral welfare of the community in conjunction with its police power as found
and neither did they "disturb the community," "annoy the inhabitants" or "adversely affect the social
in Article III, Section 18(kk) of Republic Act No. 409, 19 otherwise known as the Revised Charter
and moral welfare of the community." 11
of the City of Manila (Revised Charter of Manila)20 which reads, thus:
MTDC further advanced that the Ordinance was invalid and unconstitutional for the following
ARTICLE III
reasons: (1) The City Council has no power to prohibit the operation of motels as Section 458 (a)
THE MUNICIPAL BOARD
4 (iv) 12 of the Local Government Code of 1991 (the Code) grants to the City Council only the
power to regulate the establishment, operation and maintenance of hotels, motels, inns, pension xxx xxx xxx
houses, lodging houses and other similar establishments; (2) The Ordinance is void as it is
violative of Presidential Decree (P.D.) No. 499 13 which specifically declared portions of the Section 18.Legislative powers. The Municipal Board shall have the
Ermita-Malate area as a commercial zone with certain restrictions; (3) The Ordinance does not following legislative powers:
constitute a proper exercise of police power as the compulsory closure of the motel business has
no reasonable relation to the legitimate municipal interests sought to be protected; (4) The xxx xxx xxx
Ordinance constitutes an ex post facto law by punishing the operation of Victoria Court which was
a legitimate business prior to its enactment; (5) The Ordinance violates MTDC's constitutional
(kk)To enact all ordinances it may deem necessary and proper for the This is an opportune time to express the Court's deep sentiment and tenderness for the Ermita-
sanitation and safety, the furtherance of the prosperity, and the promotion Malate area being its home for several decades. A long-time resident, the Court witnessed the
of the morality, peace, good order, comfort, convenience, and general area's many turn of events. It relished its glory days and endured its days of infamy. Much as the
welfare of the city and its inhabitants, and such others as may be necessary Court harks back to the resplendant era of the Old Manila and yearns to restore its lost grandeur,
to carry into effect and discharge the powers and duties conferred by this it believes that the Ordinance is not the fitting means to that end. The Court is of the opinion, and
chapter; and to fix penalties for the violation of ordinances which shall not so holds, that the lower court did not err in declaring the Ordinance, as it did, ultra vires and
exceed two hundred pesos fine or six months' imprisonment, or both such therefore null and void.
fine and imprisonment, for a single offense.
The Ordinance is so replete with constitutional infirmities that almost every sentence thereof
Further, the petitioners noted, the Ordinance had the presumption of validity; hence, private violates a constitutional provision. The prohibitions and sanctions therein transgress the cardinal
respondent had the burden to prove its illegality or unconstitutionality. 21 rights of persons enshrined by the Constitution. The Court is called upon to shelter these rights
from attempts at rendering them worthless.
Petitioners also maintained that there was no inconsistency between P.D. 499 and the Ordinance
as the latter simply disauthorized certain forms of businesses and allowed the Ermita-Malate area The tests of a valid ordinance are well established. A long line of decisions has held that for an
to remain a commercial zone. 22 The Ordinance, the petitioners likewise claimed, cannot be ordinance to be valid, it must not only be within the corporate powers of the local government unit
assailed as ex post facto as it was prospective in operation. 23 The Ordinance also did not infringe to enact and must be passed according to the procedure prescribed by law, it must also conform
the equal protection clause and cannot be denounced as class legislation as there existed to the following substantive requirements: (1) must not contravene the Constitution or any statute;
substantial and real differences between the Ermita-Malate area and other places in the City of (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit
Manila. 24 but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be
unreasonable. 37
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an ex-parte
temporary restraining order against the enforcement of the Ordinance. 25And on 16 July 1993, Anent the first criterion, ordinances shall only be valid when they are not contrary to the
again in an intrepid gesture, he granted the writ of preliminary injunction prayed for by MTDC. 26 Constitution and to the laws. 38 The Ordinance must satisfy two requirements: it must pass muster
under the test of constitutionality and the test of consistency with the prevailing laws. That
After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining the ordinances should be constitutional uphold the principle of the supremacy of the Constitution. The
petitioners from implementing the Ordinance. The dispositive portion of said Decision reads: 27 requirement that the enactment must not violate existing law gives stress to the precept that local
government units are able to legislate only by virtue of their derivative legislative power, a
WHEREFORE, judgment is hereby rendered declaring Ordinance No. delegation of legislative power from the national legislature. The delegate cannot be superior to
778[3], Series of 1993, of the City of Manila null and void, and making the principal or exercise powers higher than those of the latter. 39
permanent the writ of preliminary injunction that had been issued by this
Court against the defendant. No costs. This relationship between the national legislature and the local government units has not been
enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy.
SO ORDERED. 28 The national legislature is still the principal of the local government units, which cannot defy its will
or modify or violate it. 40
Petitioners filed with the lower court a Notice of Appeal 29 on 12 December 1994, manifesting that
they are elevating the case to this Court under then Rule 42 on pure questions of law. 30 The Ordinance was passed by the City Council in the exercise of its police power, an enactment
of the City Council acting as agent of Congress. Local government units, as agencies of the State,
On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were
are endowed with police power in order to effectively accomplish and carry out the declared
committed by the lower court in its ruling: (1) It erred in concluding that the subject ordinance is
objects of their creation. 41 This delegated police power is found in Section 16 of the Code, known
ultra vires, or otherwise, unfair, unreasonable and oppressive exercise of police power; (2) It erred
in holding that the questioned Ordinancecontravenes P.D. 499 31 which allows operators of all as the general welfare clause, viz:
kinds of commercial establishments, except those specified therein; and (3) It erred in declaring SECTION 16.General Welfare. Every local government unit shall
the Ordinance void and unconstitutional. 32 exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental for its
In the Petition and in its Memorandum, 33 petitioners in essence repeat the assertions they made
efficient and effective governance, and those which are essential to the
before the lower court. They contend that the assailed Ordinance was enacted in the exercise of
promotion of the general welfare. Within their respective territorial
the inherent and plenary power of the State and the general welfare clause exercised by local
jurisdictions, local government units shall ensure and support, among other
government units provided for in Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and
conjunctively, Section 458 (a) 4 (vii) of the Code. 34 They allege that the Ordinance is a valid things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage
exercise of police power; it does not contravene P.D. 499; and that it enjoys the presumption of
and support the development of appropriate and self-reliant scientific and
validity. 35
technological capabilities, improve public morals, enhance economic
In its Memorandum 36 dated 27 May 1996, private respondent maintains that the Ordinance is prosperity and social justice, promote full employment among their
ultra vires and that it is void for being repugnant to the general law. It reiterates that the questioned residents, maintain peace and order, and preserve the comfort and
Ordinance is not a valid exercise of police power; that it is violative of due process, confiscatory convenience of their inhabitants. STCDaI
and amounts to an arbitrary interference with its lawful business; that it is violative of the equal
Local government units exercise police power through their respective legislative bodies; in this
protection clause; and that it confers on petitioner City Mayor or any officer unregulated discretion
case, the sangguniang panlungsod or the city council. The Code empowers the legislative bodies
in the execution of the Ordinance absent rules to guide and control his actions.
to "enact ordinances, approve resolutions and appropriate funds for the general welfare of the
province/city/municipality and its inhabitants pursuant to Section 16 of the Code and in the proper
exercise of the corporate powers of the province/city/municipality provided under the Code." 42 Substantive due process, as that phrase connotes, asks whether the government has an adequate
The inquiry in this Petition is concerned with the validity of the exercise of such delegated power. reason for taking away a person's life, liberty, or property. In other words, substantive due process
looks to whether there is a sufficient justification for the government's action. 54 Case law in the
United States (U.S.) tells us that whether there is such a justification depends very much on the
level of scrutiny used. 55 For example, if a law is in an area where only rational basis review is
The Ordinance contravenes applied, substantive due process is met so long as the law is rationally related to a legitimate
the Constitution government purpose. But if it is an area where strict scrutiny is used, such as for protecting
The police power of the City Council, however broad and far-reaching, is subordinate to the fundamental rights, then the government will meet substantive due process only if it can prove
constitutional limitations thereon; and is subject to the limitation that its exercise must be that the law is necessary to achieve a compelling government purpose.56
reasonable and for the public good. 43 In the case at bar, the enactment of the Ordinance was an
invalid exercise of delegated power as it is unconstitutional and repugnant to general laws. The police power granted to local government units must always be exercised with utmost
observance of the rights of the people to due process and equal protection of the law. Such power
The relevant constitutional provisions are the following: cannot be exercised whimsically, arbitrarily or despotically 57 as its exercise is subject to a
qualification, limitation or restriction demanded by the respect and regard due to the prescription
SEC. 5.The maintenance of peace and order, the protection of life, liberty, of the fundamental law, particularly those forming part of the Bill of Rights. Individual rights, it
and property, and the promotion of the general welfare are essential for the bears emphasis, may be adversely affected only to the extent that may fairly be required by the
enjoyment by all the people of the blessings of democracy. 44 legitimate demands of public interest or public welfare. 58 Due process requires the intrinsic
validity of the law in interfering with the rights of the person to his life, liberty and property. 59
SEC. 14.The State recognizes the role of women in nation-building, and
shall ensure the fundamental equality before the law of women and men. Requisites for the valid exercise
45 of Police Power are not met

SEC. 1.No person shall be deprived of life, liberty or property without due To successfully invoke the exercise of police power as the rationale for the enactment of the
process of law, nor shall any person be denied the equal protection of laws. Ordinance, and to free it from the imputation of constitutional infirmity, not only must it appear that
46 the interests of the public generally, as distinguished from those of a particular class, require an
interference with private rights, but the means adopted must be reasonably necessary for the
SEC. 9.Private property shall not be taken for public use without just accomplishment of the purpose and not unduly oppressive upon individuals. 60 It must be evident
compensation. 47 that no other alternative for the accomplishment of the purpose less intrusive of private rights can
work. A reasonable relation must exist between the purposes of the police measure and the means
A.The Ordinance infringes employed for its accomplishment, for even under the guise of protecting the public interest,
the Due Process Clause personal rights and those pertaining to private property will not be permitted to be arbitrarily
invaded. 61
The constitutional safeguard of due process is embodied in the fiat "(N)o person shall be deprived
of life, liberty or property without due process of law. . . ." 48 Lacking a concurrence of these two requisites, the police measure shall be struck down as an
arbitrary intrusion into private rights 62 a violation of the due process clause. aSDHCT
There is no controlling and precise definition of due process. It furnishes though a standard to
which governmental action should conform in order that deprivation of life, liberty or property, in The Ordinance was enacted to address and arrest the social ills purportedly spawned by the
each appropriate case, be valid. This standard is aptly described as a responsiveness to the establishments in the Ermita-Malate area which are allegedly operated under the deceptive veneer
supremacy of reason, obedience to the dictates of justice, 49 and as such it is a limitation upon of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail
the exercise of the police power. 50 lounges, hotels and motels. Petitioners insist that even the Court in the case of Ermita-Malate
Hotel and Motel Operators Association, Inc. v. City Mayor of Manila 63 had already taken judicial
The purpose of the guaranty is to prevent governmental encroachment against the life, liberty and notice of the "alarming increase in the rate of prostitution, adultery and fornication in Manila
property of individuals; to secure the individual from the arbitrary exercise of the powers of the traceable in great part to existence of motels, which provide a necessary atmosphere for
government, unrestrained by the established principles of private rights and distributive justice; to clandestine entry, presence and exit and thus become the ideal haven for prostitutes and thrill-
protect property from confiscation by legislative enactments, from seizure, forfeiture, and seekers." 64
destruction without a trial and conviction by the ordinary mode of judicial procedure; and to secure
to all persons equal and impartial justice and the benefit of the general law. 51 The object of the Ordinance was, accordingly, the promotion and protection of the social and moral
values of the community. Granting for the sake of argument that the objectives of the Ordinance
The guaranty serves as a protection against arbitrary regulation, and private corporations and are within the scope of the City Council's police powers, the means employed for the
partnerships are "persons" within the scope of the guaranty insofar as their property is concerned. accomplishment thereof were unreasonable and unduly oppressive.
52
It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable
This clause has been interpreted as imposing two separate limits on government, usually called regulations looking to the promotion of the moral and social values of the community. However,
"procedural due process" and "substantive due process." the worthy aim of fostering public morals and the eradication of the community's social ills can be
achieved through means less restrictive of private rights; it can be attained by reasonable
Procedural due process, as the phrase implies, refers to the procedures that the government must
restrictions rather than by an absolute prohibition. The closing down and transfer of businesses or
follow before it deprives a person of life, liberty, or property. Classic procedural due process issues
their conversion into businesses "allowed" under the Ordinance have no reasonable relation to
are concerned with what kind of notice and what form of hearing the government must provide
the accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated
when it takes a particular action. 53
establishments will not per se protect and promote the social and moral welfare of the community;
it will not in itself eradicate the alluded social ills of prostitution, adultery, fornication nor will it arrest establishments are given three (3) months from the date of approval of the Ordinance within which
the spread of sexual disease in Manila. "to wind up business operations or to transfer to any place outside the Ermita-Malate area or
convert said businesses to other kinds of business allowable within the area." Further, it states in
Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and Section 4 that in cases of subsequent violations of the provisions of the Ordinance, the "premises
establishments of the like which the City Council may lawfully prohibit, 65 it is baseless and of the erring establishment shall be closed and padlocked permanently."
insupportable to bring within that classification sauna parlors, massage parlors, karaoke bars,
night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns. This is It is readily apparent that the means employed by the Ordinance for the achievement of its
not warranted under the accepted definitions of these terms. The enumerated establishments are purposes, the governmental interference itself, infringes on the constitutional guarantees of a
lawful pursuits which are not per se offensive to the moral welfare of the community. person's fundamental right to liberty and property. HCEcAa

That these are used as arenas to consummate illicit sexual affairs and as venues Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to
to further the illegal prostitution is of no moment. We lay stress on the acrid truth that sexual exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into
immorality, being a human frailty, may take place in the most innocent of places that it may mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the
even take place in the substitute establishments enumerated under Section 3 of the right of man to enjoy the faculties with which he has been endowed by his Creator, subject only
Ordinance. If the flawed logic of the Ordinance were to be followed, in the remote instance to such restraint as are necessary for the common welfare." 67 In accordance with this case, the
that an immoral sexual act transpires in a church cloister or a court chamber, we would rights of the citizen to be free to use his faculties in all lawful ways; to live and work where he will;
behold the spectacle of the City of Manila ordering the closure of the church or court to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced
concerned. Every house, building, park, curb, street or even vehicles for that matter will not in the concept of liberty. 68
be exempt from the prohibition. Simply because there are no "pure" places where there are
impure men. Indeed, even the Scripture and the Tradition of Christians churches continually The U.S. Supreme Court in the case of Roth v. Board of Regents, 69 sought to clarify the meaning
recall the presence and universality of sin in man's history. (Catechism of the Catholic of "liberty." It said:
Church, Definitive Edition, p. 101; ECCE and Word & Life Publications, Don Bosco
Compound, Makati) While the Court has not attempted to define with exactness the liberty . . .
guaranteed [by the Fifth and Fourteenth Amendments], the term denotes
The problem, it needs to be pointed out, is not the establishment, which by its nature cannot be not merely freedom from bodily restraint but also the right of the individual
said to be injurious to the health or comfort of the community and which in itself is amoral, but the to contract, to engage in any of the common occupations of life, to acquire
deplorable human activity that may occur within its premises. While a motel may be used as a useful knowledge, to marry, establish a home and bring up children, to
venue for immoral sexual activity, it cannot for that reason alone be punished. It cannot be worship God according to the dictates of his own conscience, and generally
classified as a house of ill-repute or as a nuisance per se on a mere likelihood or a naked to enjoy those privileges long recognized . . . as essential to the orderly
assumption. If that were so and if that were allowed, then the Ermita-Malate area would not only pursuit of happiness by free men. In a Constitution for a free people, there
be purged of its supposed social ills, it would be extinguished of its soul as well as every human can be no doubt that the meaning of "liberty" must be broad indeed.
activity, reprehensible or not, in its every nook and cranny would be laid bare to the estimation of
the authorities. In another case, it also confirmed that liberty protected by the due process clause includes
personal decisions relating to marriage, procreation, contraception, family relationships, child
rearing, and education. In explaining the respect the Constitution demands for the autonomy of
the person in making these choices, the U.S. Supreme Court explained:
The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try as
the Ordinance may to shape morality, it should not foster the illusion that it can make a moral man These matters, involving the most intimate and personal choices a person
out of it because immorality is not a thing, a building or establishment; it is in the hearts of men. may make in a lifetime, choices central to personal dignity and autonomy,
The City Council instead should regulate human conduct that occurs inside the establishments, are central to the liberty protected by the Fourteenth Amendment. At the
but not to the detriment of liberty and privacy which are covenants, premiums and blessings of heart of liberty is the right to define one's own concept of existence, of
democracy. meaning, of universe, and of the mystery of human life. Beliefs about these
matters could not define the attributes of personhood where they formed
While petitioners' earnestness at curbing clearly objectionable social ills is commendable, they under compulsion of the State. 70
unwittingly punish even the proprietors and operators of "wholesome," "innocent" establishments.
In the instant case, there is a clear invasion of personal or property rights, personal in the case of Persons desirous to own, operate and patronize the enumerated establishments under Section 1
those individuals desirous of owning, operating and patronizing those motels and property in terms of the Ordinance may seek autonomy for these purposes.
of the investments made and the salaries to be paid to those therein employed. If the City of Manila
so desires to put an end to prostitution, fornication and other social ills, it can instead impose Motel patrons who are single and unmarried may invoke this right to autonomy to consummate
reasonable regulations such as daily inspections of the establishments for any violation of the their bonds in intimate sexual conduct within the motel's premises be it stressed that their
conditions of their licenses or permits; it may exercise its authority to suspend or revoke their consensual sexual behavior does not contravene any fundamental state policy as contained in the
licenses for these violations; 66 and it may even impose increased license fees. In other words, Constitution. 71 Adults have a right to choose to forge such relationships with others in the
there are other means to reasonably accomplish the desired end. confines of their own private lives and still retain their dignity as free persons. The liberty protected
by the Constitution allows persons the right to make this choice. 72 Their right to liberty under the
Means employed are due process clause gives them the full right to engage in their conduct without intervention of the
constitutionally infirm government, as long as they do not run afoul of the law. Liberty should be the rule and restraint
the exception.
The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars,
beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and Liberty in the constitutional sense not only means freedom from unlawful government restraint; it
inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators of the enumerated must include privacy as well, if it is to be a repository of freedom. The right to be let alone is the
beginning of all freedom it is the most comprehensive of rights and the right most valued by compensation to support the act. While property may be regulated to a certain extent, if regulation
civilized men. 73 goes too far it will be recognized as a taking. 81

The concept of liberty compels respect for the individual whose claim to privacy and interference
demands respect. As the case of Morfe v. Mutuc, 74 borrowing the words of Laski, so very aptly
stated: No formula or rule can be devised to answer the questions of what is too far and when regulation
becomes a taking. In Mahon, Justice Holmes recognized that it was "a question of degree and
Man is one among many, obstinately refusing reduction to unity. His therefore cannot be disposed of by general propositions." On many other occasions as well, the
separateness, his isolation, are indefeasible; indeed, they are so U.S. Supreme Court has said that the issue of when regulation constitutes a taking is a matter of
fundamental that they are the basis on which his civic obligations are built. considering the facts in each case. The Court asks whether justice and fairness require that the
He cannot abandon the consequences of his isolation, which are, broadly economic loss caused by public action must be compensated by the government and thus borne
speaking, that his experience is private, and the will built out of that by the public as a whole, or whether the loss should remain concentrated on those few persons
experience personal to himself. If he surrenders his will to others, he subject to the public action. 82
surrenders himself. If his will is set by the will of others, he ceases to be a
master of himself. I cannot believe that a man no longer a master of himself What is crucial in judicial consideration of regulatory takings is that government regulation is a
is in any real sense free. taking if it leaves no reasonable economically viable use of property in a manner that interferes
with reasonable expectations for use. 83 A regulation that permanently denies all economically
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which beneficial or productive use of land is, from the owner's point of view, equivalent to a "taking"
should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy unless principles of nuisance or property law that existed when the owner acquired the land make
independently of its identification with liberty; in itself it is fully deserving of constitutional the use prohibitable. 84When the owner of real property has been called upon to sacrifice all
protection. Governmental powers should stop short of certain intrusions into the personal life of economically beneficial uses in the name of the common good, that is, to leave his property
the citizen. 75 economically idle, he has suffered a taking. 85

There is a great temptation to have an extended discussion on these civil liberties but the Court A regulation which denies all economically beneficial or productive use of land will require
chooses to exercise restraint and restrict itself to the issues presented when it should. The compensation under the takings clause. Where a regulation places limitations on land that fall
previous pronouncements of the Court are not to be interpreted as a license for adults to engage short of eliminating all economically beneficial use, a taking nonetheless may have occurred,
in criminal conduct. The reprehensibility of such conduct is not diminished. The Court only depending on a complex of factors including the regulation's economic effect on the landowner,
reaffirms and guarantees their right to make this choice. Should they be prosecuted for their illegal the extent to which the regulation interferes with reasonable investment-backed expectations and
conduct, they should suffer the consequences of the choice they have made. That, ultimately, is the character of government action. These inquiries are informed by the purpose of the takings
their choice. clause which is to prevent the government from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as a whole. 86
Modality employed is
unlawful taking A restriction on use of property may also constitute a "taking" if not reasonably necessary to the
effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct
In addition, the Ordinance is unreasonable and oppressive as it substantially divests the
investment-backed expectations of the owner. 87
respondent of the beneficial use of its property. 76 The Ordinance in Section 1 thereof forbids the
running of the enumerated businesses in the Ermita-Malate area and in Section 3 instructs its The Ordinance gives the owners and operators of the "prohibited" establishments three (3) months
owners/operators to wind up business operations or to transfer outside the area or convert said from its approval within which to "wind up business operations or to transfer to any place outside
businesses into allowed businesses. An ordinance which permanently restricts the use of property of the Ermita-Malate area or convert said businesses to other kinds of business allowable within
that it can not be used for any reasonable purpose goes beyond regulation and must be the area." The directive to "wind up business operations" amounts to a closure of the
recognized as a taking of the property without just compensation. 77 It is intrusive and violative of establishment, a permanent deprivation of property, and is practically confiscatory. Unless the
the private property rights of individuals. EHTCAa owner converts his establishment to accommodate an "allowed" business, the structure which
housed the previous business will be left empty and gathering dust. Suppose he transfers it to
The Constitution expressly provides in Article III, Section 9, that "private property shall not be
another area, he will likewise leave the entire establishment idle. Consideration must be given to
taken for public use without just compensation." The provision is the most important protection of
the substantial amount of money invested to build the edifices which the owner reasonably expects
property rights in the Constitution. This is a restriction on the general power of the government to
to be returned within a period of time. It is apparent that the Ordinance leaves no reasonable
take property. The constitutional provision is about ensuring that the government does not
economically viable use of property in a manner that interferes with reasonable expectations for
confiscate the property of some to give it to others. In part too, it is about loss spreading. If the
use.
government takes away a person's property to benefit society, then society should pay. The
principal purpose of the guarantee is "to bar the Government from forcing some people alone to The second and third options to transfer to any place outside of the Ermita-Malate area or to
bear public burdens which, in all fairness and justice, should be borne by the public as a whole. convert into allowed businesses are confiscatory as well. The penalty of permanent closure in
78 cases of subsequent violations found in Section 4 of the Ordinance is also equivalent to a "taking"
of private property.
There are two different types of taking that can be identified. A "possessory" taking occurs when
the government confiscates or physically occupies property. A "regulatory" taking occurs when The second option instructs the owners to abandon their property and build another one outside
the government's regulation leaves no reasonable economically viable use of the property. 79 the Ermita-Malate area. In every sense, it qualifies as a taking without just compensation with an
additional burden imposed on the owner to build another establishment solely from his coffers.
In the landmark case of Pennsylvania Coal v. Mahon, 80 it was held that a taking also could be
The proffered solution does not put an end to the "problem," it merely relocates it. Not only is this
found if government regulation of the use of property went "too far." When regulation reaches a
impractical, it is unreasonable, onerous and oppressive. The conversion into allowed enterprises
certain magnitude, in most if not in all cases there must be an exercise of eminent domain and
is just as ridiculous. How may the respondent convert a motel into a restaurant or a coffee shop,
art gallery or music lounge without essentially destroying its property? This is a taking of private In FW/PBS, INC. v. Dallas, 94 the city of Dallas adopted a comprehensive ordinance regulating
property without due process of law, nay, even without compensation. "sexually oriented businesses," which are defined to include adult arcades, bookstores, video
stores, cabarets, motels, and theaters as well as escort agencies, nude model studio and sexual
The penalty of closure likewise constitutes unlawful taking that should be compensated by the encounter centers. Among other things, the ordinance required that such businesses be licensed.
government. The burden on the owner to convert or transfer his business, otherwise it will be A group of motel owners were among the three groups of businesses that filed separate suits
closed permanently after a subsequent violation should be borne by the public as this end benefits challenging the ordinance. The motel owners asserted that the city violated the due process clause
them as a whole. by failing to produce adequate support for its supposition that renting room for fewer than ten (10)
hours resulted in increased crime and other secondary effects. They likewise argued than the ten
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning (10)-hour limitation on the rental of motel rooms placed an unconstitutional burden on the right to
ordinance, although a valid exercise of police power, which limits a "wholesome" property to a use freedom of association. Anent the first contention, the U.S. Supreme Court held that the
which can not reasonably be made of it constitutes the taking of such property without just reasonableness of the legislative judgment combined with a study which the city considered, was
compensation. Private property which is not noxious nor intended for noxious purposes may not, adequate to support the city's determination that motels permitting room rentals for fewer than ten
by zoning, be destroyed without compensation. Such principle finds no support in the principles of (10) hours should be included within the licensing scheme. As regards the second point, the Court
justice as we know them. The police powers of local government units which have always received held that limiting motel room rentals to ten (10) hours will have no discernible effect on personal
broad and liberal interpretation cannot be stretched to cover this particular taking. bonds as those bonds that are formed from the use of a motel room for fewer than ten (10) hours
are not those that have played a critical role in the culture and traditions of the nation by cultivating
Distinction should be made between destruction from necessity and eminent domain. It needs
and transmitting shared ideals and beliefs.
restating that the property taken in the exercise of police power is destroyed because it is noxious
or intended for a noxious purpose while the property taken under the power of eminent domain is
intended for a public use or purpose and is therefore "wholesome." 88 If it be of public benefit that
a "wholesome" property remain unused or relegated to a particular purpose, then certainly the The ordinance challenged in the above-cited case merely regulated the targeted businesses. It
public should bear the cost of reasonable compensation for the condemnation of private property imposed reasonable restrictions; hence, its validity was upheld.
for public use. 89
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila,
Further, the Ordinance fails to set up any standard to guide or limit the petitioners' actions. It in no 95 it needs pointing out, is also different from this case in that what was involved therein was a
way controls or guides the discretion vested in them. It provides no definition of the establishments measure which regulated the mode in which motels may conduct business in order to put an end
covered by it and it fails to set forth the conditions when the establishments come within its ambit to practices which could encourage vice and immorality. Necessarily, there was no valid objection
of prohibition. The Ordinanceconfers upon the mayor arbitrary and unrestricted power to close on due process or equal protection grounds as the ordinance did not prohibit motels. The
down establishments. Ordinances such as this, which make possible abuses in its execution, Ordinance in this case however is not a regulatory measure but is an exercise of an assumed
depending upon no conditions or qualifications whatsoever other than the unregulated arbitrary power to prohibit. 96
will of the city authorities as the touchstone by which its validity is to be tested, are unreasonable
and invalid. The Ordinance should have established a rule by which its impartial enforcement The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment of
could be secured. 90 property and personal rights of citizens. For being unreasonable and an undue restraint of trade,
it cannot, even under the guise of exercising police power, be upheld as valid.
Ordinances placing restrictions upon the lawful use of property must, in order to be valid and
constitutional, specify the rules and conditions to be observed and conduct to avoid; and must not B.The Ordinance violates Equal
admit of the exercise, or of an opportunity for the exercise, of unbridled discretion by the law Protection Clause
enforcers in carrying out its provisions. 91
Equal protection requires that all persons or things similarly situated should be treated alike, both
Thus, in Coates v. City of Cincinnati, 92 as cited in People v. Nazario, 93 the U.S. Supreme Court as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be
struck down an ordinance that had made it illegal for "three or more persons to assemble on any treated differently, so as to give undue favor to some and unjustly discriminate against others. 97
sidewalk and there conduct themselves in a manner annoying to persons passing by." The The guarantee means that no person or class of persons shall be denied the same protection of
ordinance was nullified as it imposed no standard at all "because one may never know in advance laws which is enjoyed by other persons or other classes in like circumstances. 98 The "equal
what 'annoys some people but does not annoy others.'" protection of the laws is a pledge of the protection of equal laws." 99 It limits governmental
discrimination. The equal protection clause extends to artificial persons but only insofar as their
Similarly, the Ordinance does not specify the standards to ascertain which establishments "tend property is concerned. 100
to disturb the community," "annoy the inhabitants," and "adversely affect the social and moral
welfare of the community." The cited case supports the nullification of the Ordinance for lack of The Court has explained the scope of the equal protection clause in this wise:
comprehensible standards to guide the law enforcers in carrying out its provisions. EATCcI
. . . What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure
Petitioners cannot therefore order the closure of the enumerated establishments without infringing Administration: "The ideal situation is for the law's benefits to be available
the due process clause. These lawful establishments may be regulated, but not prevented from to all, that none be placed outside the sphere of its coverage. Only thus
carrying on their business. This is a sweeping exercise of police power that is a result of a lack of could chance and favor be excluded and the affairs of men governed by
imagination on the part of the City Council and which amounts to an interference into personal that serene and impartial uniformity, which is of the very essence of the
and private rights which the Court will not countenance. In this regard, we take a resolute stand to idea of law." There is recognition, however, in the opinion that what in fact
uphold the constitutional guarantee of the right to liberty and property. exists "cannot approximate the ideal. Nor is the law susceptible to the
reproach that it does not take into account the realities of the situation. The
Worthy of note is an example derived from the U.S. of a reasonable regulation which is a far cry constitutional guarantee then is not to be given a meaning that disregards
from the ill-considered Ordinance enacted by the City Council. what is, what does in fact exist. To assure that the general welfare be
promoted, which is the end of law, a regulatory measure may cut into the
rights to liberty and property. Those adversely affected may under such The power of the City Council to regulate by ordinances the establishment, operation, and
circumstances invoke the equal protection clause only if they can show that maintenance of motels, hotels and other similar establishments is found in Section 458 (a) 4 (iv),
the governmental act assailed, far from being inspired by the attainment of which provides that:
the common weal was prompted by the spirit of hostility, or at the very
least, discrimination that finds no support in reason." Classification is thus Section 458.Powers, Duties, Functions and Compensation. (a) The
not ruled out, it being sufficient to quote from the Tuason decision anew sangguniang panlungsod, as the legislative body of the city, shall enact
"that the laws operate equally and uniformly on all persons under similar ordinances, approve resolutions and appropriate funds for the general
circumstances or that all persons must be treated in the same manner, the welfare of the city and its inhabitants pursuant to Section 16 of this Code
conditions not being different, both in the privileges conferred and the and in the proper exercise of the corporate powers of the city as provided
liabilities imposed. Favoritism and undue preference cannot be allowed. for under Section 22 of this Code, and shall:
For the principle is that equal protection and security shall be given to every
person under circumstances which, if not identical, are analogous. If law xxx xxx xxx
be looked upon in terms of burden or charges, those that fall within a class
(4)Regulate activities relative to the use of land, buildings and structures
should be treated in the same fashion, whatever restrictions cast on some
within the city in order to promote the general welfare and for said purpose
in the group equally binding on the rest. 101
shall:
Legislative bodies are allowed to classify the subjects of legislation. If the classification is
xxx xxx xxx
reasonable, the law may operate only on some and not all of the people without violating the equal
protection clause. 102 The classification must, as an indispensable requisite, not be arbitrary. To (iv)Regulate the establishment, operation and maintenance of
be valid, it must conform to the following requirements: cafes, restaurants, beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments,
1)It must be based on substantial distinctions. IEAacS including tourist guides and transports. . . .
2)It must be germane to the purposes of the law. While its power to regulate the establishment, operation and maintenance of any entertainment or
amusement facilities, and to prohibit certain forms of amusement or entertainment is provided
3)It must not be limited to existing conditions only. under Section 458 (a) 4 (vii) of the Code, which reads as follows:
4)It must apply equally to all members of the class. 103 Section 458.Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
In the Court's view, there are no substantial distinctions between motels, inns, pension houses,
ordinances, approve resolutions and appropriate funds for the general
hotels, lodging houses or other similar establishments. By definition, all are commercial
welfare of the city and its inhabitants pursuant to Section 16 of this Code
establishments providing lodging and usually meals and other services for the public. No reason
and in the proper exercise of the corporate powers of the city as provided
exists for prohibiting motels and inns but not pension houses, hotels, lodging houses or other
for under Section 22 of this Code, and shall:
similar establishments. The classification in the instant case is invalid as similar subjects are not
similarly treated, both as to rights conferred and obligations imposed. It is arbitrary as it does not xxx xxx xxx
rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance.
(4)Regulate activities relative to the use of land, buildings and structures
The Court likewise cannot see the logic for prohibiting the business and operation of motels in the within the city in order to promote the general welfare and for said purpose
Ermita-Malate area but not outside of this area. A noxious establishment does not become any shall:
less noxious if located outside the area.
xxx xxx xxx
The standard "where women are used as tools for entertainment" is also discriminatory as
prostitution one of the hinted ills the Ordinance aims to banish is not a profession exclusive (vii)Regulate the establishment, operation, and maintenance of
to women. Both men and women have an equal propensity to engage in prostitution. It is not any any entertainment or amusement facilities, including theatrical
less grave a sin when men engage in it. And why would the assumption that there is an ongoing performances, circuses, billiard pools, public dancing schools,
immoral activity apply only when women are employed and be inapposite when men are in public dance halls, sauna baths, massage parlors, and other
harness? This discrimination based on gender violates equal protection as it is not substantially places for entertainment or amusement; regulate such other
related to important government objectives. 104 Thus, the discrimination is invalid. events or activities for amusement or entertainment, particularly
those which tend to disturb the community or annoy the
Failing the test of constitutionality, the Ordinance likewise failed to pass the test of consistency inhabitants, or require the suspension or suppression of the
with prevailing laws. same; or, prohibit certain forms of amusement or entertainment
in order to protect the social and moral welfare of the community.
C.The Ordinance is repugnant
to general laws; it is ultra vires Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses,
lodging houses, and other similar establishments, the only power of the City Council to legislate
The Ordinance is in contravention of the Code as the latter merely empowers local government relative thereto is to regulate them to promote the general welfare. The Code still withholds from
units to regulate, and not prohibit, the establishments enumerated in Section 1 thereof. cities the power to suppress and prohibit altogether the establishment, operation and maintenance
of such establishments. It is well to recall the rulings of the Court in Kwong Sing v. City of Manila
105 that:
The word "regulate," as used in subsection (l), section 2444 of the The powers conferred upon a municipal council in the general welfare
Administrative Code, means and includes the power to control, to govern, clause, or section 2238 of the Revised Administrative Code, refers to
and to restrain; but "regulate" should not be construed as synonymous with matters not covered by the other provisions of the same Code, and
"suppress" or "prohibit." Consequently, under the power to regulate therefore it can not be applied to intoxicating liquors, for the power to
laundries, the municipal authorities could make proper police regulations regulate the selling, giving away and dispensing thereof is granted
as to the mode in which the employment or business shall be exercised. specifically by section 2242 (g) to municipal councils. To hold that, under
106 the general power granted by section 2238, a municipal council may enact
the ordinance in question, notwithstanding the provision of section 2242
And in People v. Esguerra, 107 wherein the Court nullified an ordinance of the Municipality of (g), would be to make the latter superfluous and nugatory, because the
Tacloban which prohibited the selling, giving and dispensing of liquor ratiocinating that the power to prohibit, includes the power to regulate, the selling, giving away
municipality is empowered only to regulate the same and not prohibit. The Court therein declared and dispensing of intoxicating liquors.
that:
On the second point, it suffices to say that the Code being a later expression of the legislative will
must necessarily prevail and override the earlier law, the Revised Charter of Manila. Legis
posteriores priores contrarias abrogant, or later statute repeals prior ones which are repugnant
(A)s a general rule when a municipal corporation is specifically given thereto. As between two laws on the same subject matter, which are irreconcilably inconsistent,
authority or power to regulate or to license and regulate the liquor traffic, that which is passed later prevails, since it is the latest expression of legislative will. 115 If there
power to prohibit is impliedly withheld. 108 is an inconsistency or repugnance between two statutes, both relating to the same subject matter,
These doctrines still hold contrary to petitioners' assertion 109 that they were modified by the Code which cannot be removed by any fair and reasonable method of interpretation, it is the latest
expression of the legislative will which must prevail and override the earlier. 116
vesting upon City Councils prohibitory powers.
Implied repeals are those which take place when a subsequently enacted law contains provisions
Similarly, the City Council exercises regulatory powers over public dancing schools, public dance
contrary to those of an existing law but no provisions expressly repealing them. Such repeals have
halls, sauna baths, massage parlors, and other places for entertainment or amusement as found
been divided into two general classes: those which occur where an act is so inconsistent or
in the first clause of Section 458 (a) 4 (vii). Its powers to regulate, suppress and suspend "such
irreconcilable with an existing prior act that only one of the two can remain in force and those
other events or activities for amusement or entertainment, particularly those which tend to disturb
which occur when an act covers the whole subject of an earlier act and is intended to be a
the community or annoy the inhabitants" and to "prohibit certain forms of amusement or
substitute therefor. The validity of such a repeal is sustained on the ground that the latest
entertainment in order to protect the social and moral welfare of the community" are stated in the
expression of the legislative will should prevail. 117
second and third clauses, respectively of the same Section. The several powers of the City Council
as provided in Section 458 (a) 4 (vii) of the Code, it is pertinent to emphasize, are separated by In addition, Section 534(f) of the Code states that "All general and special laws, acts, city charters,
semi-colons (;), the use of which indicates that the clauses in which these powers are set forth are decrees, executive orders, proclamations and administrative regulations, or part or parts thereof
independent of each other albeit closely related to justify being put together in a single which are inconsistent with any of the provisions of this Code are hereby repealed or modified
enumeration or paragraph. 110 These powers, therefore, should not be confused, commingled or accordingly." Thus, submitting to petitioners' interpretation that the Revised Charter of Manila
consolidated as to create a conglomerated and unified power of regulation, suppression and empowers the City Council to prohibit motels, that portion of the Charter stating such must be
prohibition. 111 considered repealed by the Code as it is at variance with the latter's provisions granting the City
Council mere regulatory powers. ESCacI
The Congress unequivocably specified the establishments and forms of amusement or
entertainment subject to regulation among which are beerhouses, hotels, motels, inns, pension It is well to point out that petitioners also cannot seek cover under the general welfare clause
houses, lodging houses, and other similar establishments (Section 458 (a) 4 (iv)), public dancing authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a
schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or nuisance per se, or one which affects the immediate safety of persons and property and may be
amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot be included as among summarily abated under the undefined law of necessity. It can not be said that motels are injurious
"other events or activities for amusement or entertainment, particularly those which tend to disturb to the rights of property, health or comfort of the community. It is a legitimate business. If it be a
the community or annoy the inhabitants" or "certain forms of amusement or entertainment" which nuisance per accidens it may be so proven in a hearing conducted for that purpose. A motel is not
the City Council may suspend, suppress or prohibit. AEDcIH per se a nuisance warranting its summary abatement without judicial intervention.118
The rule is that the City Council has only such powers as are expressly granted to it and those Notably, the City Council was conferred powers to prevent and prohibit certain activities and
which are necessarily implied or incidental to the exercise thereof. By reason of its limited powers establishments in another section of the Code which is reproduced as follows:
and the nature thereof, said powers are to be construed strictissimi juris and any doubt or
ambiguity arising out of the terms used in granting said powers must be construed against the City Section 458.Powers, Duties, Functions and Compensation. (a) The
Council. 112 Moreover, it is a general rule in statutory construction that the express mention of sangguniang panlungsod, as the legislative body of the city, shall enact
one person, thing, or consequence is tantamount to an express exclusion of all others. Expressio ordinances, approve resolutions and appropriate funds for the general
unius est exclusio alterium. This maxim is based upon the rules of logic and the natural workings welfare of the city and its inhabitants pursuant to Section 16 of this Code
of human mind. It is particularly applicable in the construction of such statutes as create new rights and in the proper exercise of the corporate powers of the city as provided
or remedies, impose penalties or punishments, or otherwise come under the rule of strict for under Section 22 of this Code, and shall:
construction. 113
(1)Approve ordinances and pass resolutions necessary for an efficient and
The argument that the City Council is empowered to enact the Ordinance by virtue of the general effective city government, and in this connection, shall:
welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is likewise
without merit. On the first point, the ruling of the Court in People v. Esguerra, 114 is instructive. It xxx xxx xxx
held that:
(v)Enact ordinances intended to prevent, suppress and impose appropriate Petitioners contend that the Ordinance enjoys the presumption of validity. While this may be the
penalties for habitual drunkenness in public places, vagrancy, mendicancy, rule, it has already been held that although the presumption is always in favor of the validity or
prostitution, establishment and maintenance of houses of ill repute, reasonableness of the ordinance, such presumption must nevertheless be set aside when the
gambling and other prohibited games of chance, fraudulent devices and invalidity or unreasonableness appears on the face of the ordinance itself or is established by
ways to obtain money or property, drug addiction, maintenance of drug proper evidence. The exercise of police power by the local government is valid unless it
dens, drug pushing, juvenile delinquency, the printing, distribution or contravenes the fundamental law of the land, or an act of the legislature, or unless it is against
exhibition of obscene or pornographic materials or publications, and such public policy or is unreasonable, oppressive, partial, discriminating or in derogation of a common
other activities inimical to the welfare and morals of the inhabitants of the right. 123
city;
Conclusion
xxx xxx xxx
All considered, the Ordinance invades fundamental personal and property rights and impairs
If it were the intention of Congress to confer upon the City Council the power to prohibit the personal privileges. It is constitutionally infirm. The Ordinancecontravenes statutes; it is
establishments enumerated in Section 1 of the Ordinance, it would have so declared in uncertain discriminatory and unreasonable in its operation; it is not sufficiently detailed and explicit that
terms by adding them to the list of the matters it may prohibit under the above-quoted Section. abuses may attend the enforcement of its sanctions. And not to be forgotten, the City Council
The Ordinance now vainly attempts to lump these establishments with houses of ill-repute and under the Code had no power to enact the Ordinance and is therefore ultra vires, null and void.
expand the City Council's powers in the second and third clauses of Section 458 (a) 4 (vii) of the cHCSDa
Code in an effort to overreach its prohibitory powers. It is evident that these establishments may
Concededly, the challenged Ordinance was enacted with the best of motives and shares the
only be regulated in their establishment, operation and maintenance.
concern of the public for the cleansing of the Ermita-Malate area of its social sins. Police power
It is important to distinguish the punishable activities from the establishments themselves. That legislation of such character deserves the full endorsement of the judiciary we reiterate our
these establishments are recognized legitimate enterprises can be gleaned from another Section support for it. But inspite of its virtuous aims, the enactment of the Ordinance has no statutory or
of the Code. Section 131 under the Title on Local Government Taxation expressly mentioned constitutional authority to stand on. Local legislative bodies, in this case, the City Council, cannot
proprietors or operators of massage clinics, sauna, Turkish and Swedish baths, hotels, motels and prohibit the operation of the enumerated establishments under Section 1 thereof or order their
lodging houses as among the "contractors" defined in paragraph (h) thereof. The same Section transfer or conversion without infringing the constitutional guarantees of due process and equal
also defined "amusement" as a "pleasurable diversion and entertainment," "synonymous to protection of laws not even under the guise of police power.
relaxation, avocation, pastime or fun;" and "amusement places" to include "theaters, cinemas,
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court
concert halls, circuses and other places of amusement where one seeks admission to entertain
declaring the Ordinance void is AFFIRMED. Costs against petitioners.
oneself by seeing or viewing the show or performances." Thus, it can be inferred that the Code
considers these establishments as legitimate enterprises and activities. It is well to recall the SO ORDERED.
maxim reddendo singula singulis which means that words in different parts of a statute must be
referred to their appropriate connection, giving to each in its place, its proper force and effect, and, [G.R. No. 93891. March 11, 1991.]
if possible, rendering none of them useless or superfluous, even if strict grammatical construction
demands otherwise. Likewise, where words under consideration appear in different sections or
are widely dispersed throughout an act the same principle applies. 119 POLLUTION ADJUDICATION BOARD, petitioner, vs. COURT OF
APPEALS and SOLAR TEXTILE FINISHING CORPORATION,
respondents.
Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of
P.D. 499. As correctly argued by MTDC, the statute had already converted the residential Ermita-
Malate area into a commercial area. The decree allowed the establishment and operation of all Oscar A. Pascua and Charemon Clio L. Borre for petitioner.
kinds of commercial establishments except warehouse or open storage depot, dump or yard,
motor repair shop, gasoline service station, light industry with any machinery or funeral Leonardo A. Aurelio for respondent Solar Textile Finishing Corp.
establishment. The rule is that for an ordinance to be valid and to have force and effect, it must
not only be within the powers of the council to enact but the same must not be in conflict with or
repugnant to the general law. 120 As succinctly illustrated in Solicitor General v. Metropolitan SYLLABUS
Manila Authority: 121

The requirement that the enactment must not violate existing law explains
1. ADMINISTRATIVE LAW; POLLUTION ADJUDICATION BOARD; MAY ISSUE CEASE AND
itself. Local political subdivisions are able to legislate only by virtue of a
DESIST ORDERS EX-PARTE; BASIS. Section 7(a) of P.D. No. 984 authorized petitioner Board
valid delegation of legislative power from the national legislature (except
to issue ex parte cease and desist orders. An ex parte cease and desist order may be issued by
only that the power to create their own sources of revenue and to levy taxes
the Board (a) whenever the wastes discharged by an establishment pose an "immediate threat to
is conferred by the Constitution itself). They are mere agents vested with
life, public health, safety or welfare, or to animal or plant life," or (b) whenever such discharges or
what is called the power of subordinate legislation. As delegates of the
wastes exceed "the allowable standards set by the [NPCC]." On the one hand, it is not essential
Congress, the local government units cannot contravene but must obey at
that the Board prove that an "immediate threat to life, public health, safety or welfare, or to animal
all times the will of their principal. In the case before us, the enactment in
or plant life" exists before an ex parte cease and desist order may be issued. It is enough if the
question, which are merely local in origin cannot prevail against the decree,
Board finds that the wastes discharged do exceed "the allowable standards set by the [NPCC]."
which has the force and effect of a statute. 122
In respect of discharges of wastes as to which allowable standards have been set by the
Commission, the Board may issue an ex partecease and desist order when there is prima facie
evidence of an establishment exceeding such allowable standards. Where, however, the effluents "Respondent, Solar Textile Finishing Corporation with plant and place of
or discharges have not yet been the subject matter of allowable standards set by the Commission, business at 999 General Pascual Avenue, Malabon, Metro Manila is
then the Board may act on an ex parte basis when it finds at least prima facie proof that the involved in bleaching, rinsing and dyeing textiles with wastewater of about
wastewater or material involved presents an "immediate threat to life, public health, safety or 30 gpm. being directly discharged untreated into the sewer. Based on
welfare or to animal or plant life." Since the applicable standards set by the Commission existing findings in the Inspections conducted on 05 November 1986 and 15
at any given time may well not cover every possible or imaginable kind of effluent or waste November 1986, the volume of untreated wastewater discharged in the
discharge, the general standard of an "immediate threat to life public health, safety or welfare, or final outfall outside of the plant's compound was even greater. The result
to animal and plant life" remains necessary. of inspection conducted on 06 September 1988 showed that respondent's
Wastewater Treatment Plant was noted unoperational and the combined
2. POLITICAL LAW; POLICE POWER; ENACTMENT OF POLLUTION CONTROL STATUTES wastewater generated from its operation was about 30 gallons per minute
AND IMPLEMENTING REGULATIONS, AN EXERCISE THEREOF. The relevant pollution and 80% of the wastewater was being directly discharged into a drainage
control statute and implementing regulations were enacted and promulgated in the exercise of canal leading to the Tullahan-Tinejeros River by means of a by-pass and
that persuasive, sovereign power to protect the safety, health, and general welfare and comfort of the remaining 20% was channeled into the plant's existing Wastewater
the public, as well as the protection of plant and animal life, commonly designated as the police Treatment Plant (WTP). Result of the analyses of the sample taken from
power. the by - pass showed that the wastewater is highly pollutive in terms of
Color units, BOD and Suspended Solids, among others. These acts of
3. CONSTITUTIONAL LAW; DUE PROCESS; YIELDS TO THE EXERCISE OF POLICE POWER. respondent in spite of directives to comply with the requirements are clearly
It is a constitutional common place that the ordinary requirements of procedural due process in violation of Section 8 of Presidential Decree No. 984 and Section 103 of
yield to the necessities of protecting vital public interests like those here involved, through the its Implementing Rules and Regulations and the 1982 Effluent Regulations.
exercise of police power.
WHEREFORE, pursuant to Section 7 of P.D. 984 and Section 38 of its
4. ADMINISTRATIVE LAW; POLLUTION ADJUDICATION BOARD; DUE PROCESS; HOLDING Implementing Rules and Regulations, respondent is hereby ordered to
OF PUBLIC HEARING AFTER EX-PARTE ISSUANCE OF A CEASE AND DESIST ORDER, cease and desist from utilizing its wastewater pollution source installations
SUFFICIENT COMPLIANCE WITH DUE PROCESS CLAUSE. Where the establishment and discharging its untreated wastewater directly into the canal leading to
affected by an ex parte cease and desist order contests the correctness of the prima facie findings the Tullahan-Tinejeros River effective immediately upon receipt hereof and
of the Board, the Board must hold a public hearing where such establishment would have an until such time when it has fully complied with all the requirements and until
opportunity to controvert the basis of such ex parte order. That such an opportunity is further orders from this Board.
subsequently available is really all that is required by the due process clause of the Constitution
in situations like that we have here. SO ORDERED." 1
5. REMEDIAL LAW; ACTIONS; APPEAL; PROPER REMEDY WHERE We note that the above Order was based on findings of several inspections of Solar's plant:
QUESTIONED ORDER AND WRIT OF EXECUTION WHERE LAWFUL. Solar claims
finally that the petition for certiorari was the proper remedy as the questioned Order and Writ a. inspections conducted on 5 November 1986 and 12 November 1986 by
of Execution issued by the Board were patent nullities. Since we have concluded that Order the National Pollution Control Commission ("NPCC"), the predecessor of
and Writ of Execution were entirely within the lawful authority of petitioner Board, the trial the Board; 2 and
court did not err when it dismissed Solar's petition for certiorari. It follows that the proper
remedy was an appeal from the trial court to the Court of Appeals, as Solar did in fact appeal. b. the inspection conducted on 6 September 1988 by the Department of
Environment and Natural Resources ("DENR").

The findings of these two (2) inspections were that Solar's wastewater treatment plant was
non-operational and that its plant generated about 30 gallons per minute of wastewater, 80%
RESOLUTION of which was being directly discharged into a drainage canal leading to the Tullahan-
Tinejeros River. The remaining 20% of the wastewater was being channeled through Solar's
non-operational wastewater treatment plant. Chemical analysis of samples of Solar's
effluents showed the presence of pollutants on a level in excess of what was permissible
FELICIANO, J p: under P.D. No. 984 and its Implementing Regulations.
A copy of the above Order was received by Solar on 26 September 1988. A Writ of Execution
Petitioner Pollution Adjudication Board ("Board") asks us to review the Decision and Resolution issued by the Board was received by Solar on 31 March 1989.
promulgated on 7 February 1990 and 10 May 1990, respectively, by the Court of Appeals in C.A.-
G.R. No. SP 18821 entitled "Solar Textile Finishing Corporation v. Pollution Adjudication Board." Meantime, Solar filed a motion for reconsideration appeal with prayer for stay of execution of the
In that Decision and Resolution, the Court of Appeals reversed an order of the Regional Trial Order dated 22 September 1988. Acting on this motion, the Board issued an Order dated 24 April
Court, Quezon City, Branch 77, in Civil Case No. Q-89-2287 dismissing private respondent Solar 1989 allowing Solar to operate temporarily, to enable the Board to conduct another inspection and
Textile Finishing Corporation's ("Solar") petition for certiorari and remanded the case to the trial evaluation of Solar's wastewater treatment facilities. In the same Order, the Board directed the
court for further proceedings. Regional Executive Director of the DENR NCR to conduct the inspection and evaluation within
thirty (30) days.
On 22 September 1988, petitioner Board issued an ex parte Order directing Solar immediately to
cease and desist from utilizing its wastewater pollution source installations which were discharging On 21 April 1989, however, Solar went to the Regional Trial Court of Quezon City, Branch 77, on
untreated wastewater directly into a canal leading to the adjacent Tullahan-Tinejeros River. The petition for certiorari with preliminary injunction against the Board, the petition being docketed as
Order signed by Hon. Fulgencio Factoran, Jr., as Board Chairman, reads in full as follows: Civil Case No. Q-89-2287.
On 21 July 1989, the Regional Trial Court dismissed Solar's petition upon two (2) grounds, i.e., person prevents or abates the said pollution within the allowable standards
that appeal and not certiorari from the questioned Order of the Board as well as the Writ of or modified or nullified by a competent court." (Emphasis supplied).
Execution was the proper remedy, and that the Board's subsequent Order allowing Solar to
operate temporarily had rendered Solar's petition moot and academic. We note that under the above-quoted portion of Section 7(a) of P.D. No. 984, an ex parte cease
and desist order may be issued by the Board (a) whenever the wastes discharged by an
Dissatisfied, Solar went on appeal to the Court of Appeals which, in the Decision here assailed, establishment pose an "immediate threat to life, public health, safety or welfare, or to animal or
reversed the Order of dismissal of the trial court and remanded the case to that court for further plant life," or (b) whenever such discharges or wastes exceed "the allowable standards set by the
proceedings. In addition, the Court of Appeals declared the Writ of Execution null and void. At the [NPCC]." On the one hand, it is not essential that the Board prove that an "immediate threat to
same time, the Court of Appeals said in the dispositive portion of its Decision that: life, public health, safety or welfare, or to animal or plant life" exists before an ex parte cease and
desist order may be issued. It is enough if the Board finds that the wastes discharged do exceed
". . . Still and all, this decision is without prejudice to whatever action the "the allowable standards set by the [NPCC]." In respect of discharges of wastes as to which
appellee [Board] may take relative to the projected 'inspection and allowable standards have been set by the Commission, the Board may issue an ex parte cease
evaluation' of appellant's [Solar's] water treatment facilities." 3 and desist order when there is prima facie evidence of an establishment exceeding such allowable
standards. Where, however, the effluents or discharges have not yet been the subject matter of
The Court of Appeals, in so ruling, held that certiorari was a proper remedy since the Orders of allowable standards set by the Commission, then the Board may act on an ex parte basis when it
petitioner Board may result in great and irreparable injury to Solar; and that while the case might finds at least prima facie proof that the wastewater or material involved presents an "immediate
be moot and academic, "larger issues" demanded that the question of due process be settled. threat to life, public health, safety or welfare or to animal or plant life." Since the applicable
Petitioner Board moved for reconsideration, without success. prcd standards set by the Commission existing at any given time may well not cover every possible or
imaginable kind of effluent or waste discharge, the general standard of an "immediate threat to life
public health, safety or welfare, or to animal and plant life" remains necessary. Cdpr
The Board is now before us on a Petition for Review basically arguing that:
Upon the other hand, the Court must assume that the extant allowable standards have been set
1. its ex parte Order dated 22 September 1988 and the Writ of Execution by the Commission or Board precisely in order to avoid or neutralize an "immediate threat to life,
were issued in accordance with law and were not violative of the public health, safety or welfare, or to animal or plant life."
requirements of due process; and
Section 5 of the Effluent Regulations of 1982 4 sets out the maximum permissible levels of physical
2. the ex parte Order and the Writ of Execution are not the proper subjects and chemical substances which effluents from domestic wastewater treatment plants and
of a petition for certiorari. industrial plants must not exceed "when discharged into bodies of water classified as Class A, B,
C, D, SB and SC in accordance with the 1978 NPCC Rules and Regulations." The waters of
The only issue before us at this time is whether or not the Court of Appeals erred in reversing the Tullahan-Tinejeros River are classified as inland waters Class D under Section 68 of the 1978
trial court on the ground that Solar had been denied due process by the Board. LibLex NPCC Rules and Regulations, 5 which in part provides that:

Petitioner Board claims that under P.D. No. 984, Section 7(a), it has legal authority to issue ex "Section 68. Water Usage and Classification. The quality of Philippine
parte orders to suspend the operations of an establishment when there isprima facie evidence waters shall be maintained in a safe and satisfactory condition according
that such establishment is discharging effluents or wastewater, the pollution level of which to their best usages. For this purpose, all water shall be classified
exceeds the maximum permissible standards set by the NPCC (now, the Board). Petitioner Board according to the following beneficial usages:
contends that the reports before it concerning the effluent discharges of Solar into the Tullahan-
Tinejeros River provided prima facie evidence of violation by Solar of Section 5 of the 1982 Effluent (a) Fresh Surface Water.
Code.
Classification Best usage
Solar, on the other hand, contends that under the Board's own rules and regulations, an ex parte
xxx xxx xxx
order may issue only if the effluents discharged pose an "immediate threat to life, public health;
safety or welfare, or to animal and plant life." In the instant case, according to Solar, the inspection Class D For agriculture, irrigation,
reports before the Board made no finding that Solar's wastewater discharged posed such a threat. live stock watering and
industrial cooling and
The Court is not persuaded by Solar's contention. Section 7(a) of P.D. No. 984 authorized
processing
petitioner Board to issue ex parte cease and desist orders under the following circumstances:
xxx xxx xxx
"P.D. 984, Section 7, paragraph (a), provides:
(Emphases supplied)
(a) Public Hearing . . . Provided, That whenever the Commission finds
prima facie evidence that the discharged sewage or wastes are of The reports on the inspections carried on Solar's wastewater treatment facilities on 5 and 12
immediate threat to life, public health, safety or welfare, or to animal or November 1986 and 6 September 1988 set forth the following identical finding:
plant life, or exceeds the allowable standards set by the Commission, the
Commissioner may issue an ex-parte order directing the discontinuance of "a. For legal action in [view of] violation of Section 103 of the implementing
the same or the temporary suspension or cessation of operation of the rules and regulations of P.D. No. 984 and Section 5 of the Effluent
establishment or person generating such sewage or wasteswithout the Regulations of 1982."6
necessity of a prior public hearing. The said ex-parte order shall be
immediately executory and shall remain in force until said establishment or
Placing the maximum allowable standards set in Section 5 of the Effluent Regulations of 1982 mg./l.
alongside the findings of the November 1986 and September 1988 inspection reports, we get the
following results: m) Turbidity

"Inland November September NTU/ppm. SiO3 70

Waters 1986 1988 The November 1986 inspections report concluded that:

(Class C & D) 7 Report 8 Report 9 "Records of the Commission show that the plant under its previous owner,
Fine Touch Finishing Corporation, was issued a Notice of Violation on 20
Station 1 Station 1 December 1985 directing same to cease and desist from conducting
dyeing operation until such time the waste treatment plant is already
a) Color in 100 a) Color units 250 125
completed and operational. The new owner Solar Textile Corporation
platinum (Apparent informed the Commission of the plant acquisition thru its letter dated March
1986 (sic).
cobalt Color)
The new owner was summoned to a hearing held on 13 October 1986
units based on the adverse findings during the inspection/water sampling test
conducted on 08 August 1986. As per instruction of the Legal Division a
b) p H 6-8.5 b) pH 9.3 8.7 re-inspection/sampling test should be conducted first before an appropriate
legal action is instituted; hence, this inspection.
c) Tempera- 40 c) Temperature
Based on the above findings, it is clear that the new owner continuously
ture in C (C) violates the directive of the Commission by undertaking dyeing operation
without completing first and operating its existing WTP. The analysis of
d) Phenols in 0.1 d) Phenols in results on water samples taken showed that the untreated wastewater from
the firm pollutes our water resources. In this connection, it is recommended
mg./l. mg./l.
that appropriate legal action be instituted immediately against the firm . . ."
e) Suspended 75 e) Suspended 340 80 10

solids in solids in The September 1988 inspection report's conclusions were:

mg./l. mg./l. "1. The plant was undertaking dyeing, bleaching and rinsing operations
during the inspection. The combined wastewater generated from the said
f) BOD in 80 f) BOD (5-day) 1,100 152 operations was estimated at about 30 gallons per minute. About 80% of
the wastewater was traced directly discharged into a drainage canal
mg./l mg./l. leading to the Tullahan - Tinejeros river by means of a bypass. The
remaining 20% was channeled into the plant's existing wastewater
g) oil/Grease 10 g) Oil/Grease treatment plant (WTP).
in mg./l. mg./l. 2. The WTP was noted not yet fully operational some accessories were
not yet installed. Only the sump pit and the holding/collecting tank are
h) Detergents 5 h) Detergents 2.93
functional but appeared seldom used. The wastewater mentioned
in mg./l." mg./l. MBAS channeled was noted held indefinitely into the collection tank for primary
treatment. There was no effluent discharge [from such collection tank].
i) Dissolved 0
3. A sample from the bypass wastewater was collected for laboratory
Oxygen, mg./l. analyses. Result of the analyses show that the bypass wastewater is
polluted in terms of color units, BOD and suspended solids, among others.
j) Settleable 0.4 1.5 (Please see attached laboratory result)." 11

Matter, mg./l. From the foregoing reports, it is clear to this Court that there was at least prima facie evidence
before the Board that the effluents emanating from Solar's plant exceeded the maximum allowable
k) Total Dis- 800 610 levels of physical and chemical substances set by the NPCC and that accordingly there was
adequate basis supporting the ex partecease and desist order issued by the Board. It is also well
solved Solids to note that the previous owner of the plant facility Fine Touch Finishing Corporation had
mg./l. been issued a Notice of Violation on 20 December 1985 directing it to cease and refrain from
carrying out dyeing operations until the water treatment plant was completed and operational.
l) Total Solids 1,400 690 Solar, the new owner, informed the NPCC of the acquisition of the plant on March 1986. Solar
was summoned by the NPCC to a hearing on 13 October 1986 based on the results of the
sampling test conducted by the NPCC on 8 August 1986. Petitioner Board refrained from issuing the task of determining whether the effluents of a particular industrial establishment comply with
an ex parte cease and desist order until after the November 1986 and September 1988 re- or violate applicable anti-pollution statutory and regulatory provisions.
inspections were conducted and the violation of applicable standards was confirmed. In other
words, petitioner Board appears to have been remarkably forbearing in its efforts to enforce the Ex parte cease and desist orders are permitted by law and regulations in situations like that here
applicable standards vis-a-vis Solar. Solar, on the other hand, seemed very casual about its presented precisely because stopping the continuous discharge of pollutive and untreated
continued discharge of untreated, pollutive effluents into the Tullahan-Tinejeros River, presumably effluents into the rivers and other inland waters of the Philippines cannot be made to wait until
loath to spend the money necessary to put its Wastewater Treatment Plant ("WTP") in an protracted litigation over the ultimate correctness or propriety of such orders has run its full course,
operating condition. cdrep including multiple and sequential appeals such as those which Solar has taken, which of course
may take several years. The relevant pollution control statute and implementing regulations were
enacted and promulgated in the exercise of that persuasive, sovereign power to protect the safety,
health, and general welfare and comfort of the public, as well as the protection of plant and animal
In this connection, we note that in Technology Developers, Inc. v. Court of Appeals, et al., 12 the life, commonly designated as the police power. It is a constitutional common place that the
Court very recently upheld the summary closure ordered by the Acting Mayor of Sta. Maria, ordinary requirements of procedural due process yield to the necessities of protecting vital public
Bulacan, of a pollution-causing establishment, after finding that the records showed that: interests like those here involved, through the exercise of police power. The Board's ex parte
Order and Writ of Execution would, of course, have compelled Solar temporarily to stop its plant
"1. No mayor's permit had been secured. While it is true that the matter of operations, a state of affairs Solar could in any case have avoided by simply absorbing the bother
determining whether there is a pollution of the environment that requires and burden of putting its WTP on an operational basis. Industrial establishments are not
control if not prohibition of the operation of a business is essentially constitutionally entitled to reduce their capitals costs and operating expenses and to increase their
addressed to the then National Pollution Control Commission of the profits by imposing upon the public threats and risks to its safety, health, general welfare and
Ministry of Human Settlements, now the Environmental Management comfort, by disregarding the requirements of anti-pollution statutes and their implementing
Bureau of the Department of Environment and Natural Resources, it must regulations. cdll
be recognized that the mayor of a town has as much responsibility to
protect its inhabitants from pollution, and by virtue of his police power, he It should perhaps be made clear the Court is not here saying that the correctness of the ex parte
may deny the application for a permit to operate a business or otherwise Order and Writ of Execution may not be contested by Solar in a hearing before the Board itself.
close the same unless appropriate measures are taken to control and or Where the establishment affected by an ex parte cease and desist order contests the correctness
avoid injury to the health of the residents of the community from the of the prima facie findings of the Board, the Board must hold a public hearing where such
emission in the operation of the business. establishment would have an opportunity to controvert the basis of such ex parte order. That such
an opportunity is subsequently available is really all that is required by the due process clause of
2. The Acting Mayor, in a letter of February 16, 1989, called the attention the Constitution in situations like that we have here. The Board's decision rendered after the public
of petitioner to the pollution emitted by the fumes of its plant whose hearing may then be tested judicially by an appeal to the Court of Appeals in accordance with
offensive odor "not only pollute the air in the locality but also affect the Section 7(c) of P.D. No. 984 and Section 42 of the Implementing Rules and Regulations. A
health of the residents in the area," so that petitioner was ordered to stop subsequent public hearing is precisely what Solar should have sought instead of going to court to
its operation until further orders and it was required to bring the following: seek nullification of the Board's Order and Writ of Execution and instead of appealing to the Court
of Appeals. It will be recalled that the Board in fact gave Solar authority temporarily to continue
xxx xxx xxx
operations until still another inspection of its wastewater treatment facilities and then another
(3) Region III-Department of Environment and Natural analysis of effluent samples could be taken and evaluated.
Resources Anti-Pollution permit. (Annex A-2, petition).
Solar claims finally that the petition for certiorari was the proper remedy as the questioned Order
3. This action of the Acting Mayor was in response to the complaint of the and Writ of Execution issued by the Board were patent nullities. Since we have concluded that
residents of Barangay Guyong, Sta. Maria, Bulacan, directed to the Order and Writ of Execution were entirely within the lawful authority of petitioner Board, the trial
Provincial Governor through channels (Annex A-B, petition). . . . court did not err when it dismissed Solar's petition for certiorari. It follows that the proper remedy
was an appeal from the trial court to the Court of Appeals, as Solar did in fact appeal.
4. The closure order of the Acting Mayor was issued only after an
investigation was made by Marivic Guina who in her report of December 8, ACCORDINGLY, the Petition for Review is given DUE COURSE and the Decision of the Court of
1988 observed that the fumes emitted by the plant of petitioner goes Appeals dated 7 February 1990 and its Resolution dated 10 May 1990 in A.C.-G.R. No. SP 18821
directly to the surrounding houses and that no proper air pollution device are hereby SET ASIDE. The Order of petitioner Board dated 22 September 1988 and the Writ of
has been installed. (Annex A-9, petition). Execution, as well as the decision of the trial court dated 21 July 1989, are hereby REINSTATED,
without prejudice to the right of Solar to contest the correctness of the basis of the Board's Order
xxx xxx xxx and Writ of Execution at a public hearing before the Board.

6. While petitioner was able to present a temporary permit to operate by Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.
the then National Pollution Control Commission on December 15, 1987,
the permit was good only up to May 25, 1988 (Annex A-12, petition). [G.R. No. 130230. April 15, 2005.]
Petitioner had not exerted any effort to extend or validate its permit much
less to install any device to control the pollution and prevent any hazard to
the health of the residents of the community." METROPOLITAN MANILA DEVELOPMENT AUTHORITY, petitioner, vs.
DANTE O. GARIN, respondent.
In the instant case, the ex parte cease and desist Order was issued not by a local government
official but by the Pollution Adjudication Board, the very agency of the Government charged with
DECISION preliminary mandatory injunction was granted on 23 October 1995, and the MMDA was directed
to return the respondent's driver's license.

On 14 August 1997, the trial court rendered the assailed decision 5 in favor of the herein
respondent and held that:
CHICO-NAZARIO, J p:
a. There was indeed no quorum in that First Regular Meeting of the MMDA
At issue in this case is the validity of Section 5(f) of Republic Act No. 7924 creating the Metropolitan Council held on March 23, 1995, hence MMDA Memorandum Circular No.
Manila Development Authority (MMDA), which authorizes it to confiscate and suspend or revoke TT-95-001, authorizing confiscation of driver's licenses upon issuance of a
driver's licenses in the enforcement of traffic laws and regulations. TVR, is void ab initio.

The issue arose from an incident involving the respondent Dante O. Garin, a lawyer, who was b. The summary confiscation of a driver's license without first giving the
issued a traffic violation receipt (TVR) and his driver's license confiscated for parking illegally along driver an opportunity to be heard; depriving him of a property right (driver's
Gandara Street, Binondo, Manila, on 05 August 1995. The following statements were printed on license) without DUE PROCESS; not filling (sic) in Court the complaint of
the TVR: supposed traffic infraction, cannot be justified by any legislation (and is)
hence unconstitutional.
YOU ARE HEREBY DIRECTED TO REPORT TO THE MMDA TRAFFIC
OPERATIONS CENTER PORT AREA MANILA AFTER 48 HOURS FROM WHEREFORE, the temporary writ of preliminary injunction is hereby made
DATE OF APPREHENSION FOR DISPOSITION/APPROPRIATE permanent; th(e) MMDA is directed to return to plaintiff his driver's license;
ACTION THEREON. CRIMINAL CASE SHALL BE FILED FOR FAILURE th(e) MMDA is likewise ordered to desist from confiscating driver's license
TO REDEEM LICENSE AFTER 30 DAYS. without first giving the driver the opportunity to be heard in an appropriate
proceeding.
VALID AS TEMPORARY DRIVER'S LICENSE FOR SEVEN DAYS FROM
DATE OF APPREHENSION. 1 In filing this petition, 6 the MMDA reiterates and reinforces its argument in the court below and
contends that a license to operate a motor vehicle is neither a contract nor a property right, but is
Shortly before the expiration of the TVR's validity, the respondent addressed a letter 2 to then a privilege subject to reasonable regulation under the police power in the interest of the public
MMDA Chairman Prospero Oreta requesting the return of his driver's license, and expressing his safety and welfare. The petitioner further argues that revocation or suspension of this privilege
preference for his case to be filed in court. does not constitute a taking without due process as long as the licensee is given the right to appeal
the revocation.
Receiving no immediate reply, Garin filed the original complaint 3 with application for preliminary
injunction in Branch 260 of the Regional Trial Court (RTC) of Paraaque, on 12 September 1995, To buttress its argument that a licensee may indeed appeal the taking and the judiciary retains
contending that, in the absence of any implementing rules and regulations, Sec. 5(f) of Rep. Act the power to determine the validity of the confiscation, suspension or revocation of the license,
No. 7924 grants the MMDA unbridled discretion to deprive erring motorists of their licenses, pre- the petitioner points out that under the terms of the confiscation, the licensee has three options:
empting a judicial determination of the validity of the deprivation, thereby violating the due process
clause of the Constitution. The respondent further contended that the provision violates the 1. To voluntarily pay the imposable fine,
constitutional prohibition against undue delegation of legislative authority, allowing as it does the
MMDA to fix and impose unspecified and therefore unlimited fines and other penalties on 2. To protest the apprehension by filing a protest with the MMDA
erring motorists. SaHTCE Adjudication Committee, or

In support of his application for a writ of preliminary injunction, Garin alleged that he suffered and 3. To request the referral of the TVR to the Public Prosecutor's Office.
continues to suffer great and irreparable damage because of the deprivation of his license and
The MMDA likewise argues that Memorandum Circular No. TT-95-001 was validly passed in the
that, absent any implementing rules from the Metro Manila Council, the TVR and the confiscation
presence of a quorum, and that the lower court's finding that it had not was based on a
of his license have no legal basis.
"misapprehension of facts," which the petitioner would have us review. Moreover, it asserts that
For its part, the MMDA, represented by the Office of the Solicitor General, pointed out that the though the circular is the basis for the issuance of TVRs, the basis for the summary confiscation
powers granted to it by Sec. 5(f) of Rep. Act No. 7924 are limited to the fixing, collection and of licenses is Sec. 5(f) of Rep. Act No. 7924 itself, and that such power is self-executory and does
imposition of fines and penalties for traffic violations, which powers are legislative and executive not require the issuance of any implementing regulation or circular. SHacCD
in nature; the judiciary retains the right to determine the validity of the penalty imposed. It further
Meanwhile, on 12 August 2004, the MMDA, through its Chairman Bayani Fernando, implemented
argued that the doctrine of separation of powers does not preclude "admixture" of the three powers
Memorandum Circular No. 04, Series of 2004, outlining the procedures for the use of the
of government in administrative agencies. 4
Metropolitan Traffic Ticket (MTT) scheme. Under the circular, erring motorists are issued an MTT,
The MMDA also refuted Garin's allegation that the Metro Manila Council, the governing board and which can be paid at any Metrobank branch. Traffic enforcers may no longer confiscate drivers'
policy making body of the petitioner, has as yet to formulate the implementing rules for Sec. 5(f) licenses as a matter of course in cases of traffic violations. All motorists with unredeemed TVRs
of Rep. Act No. 7924 and directed the court's attention to MMDA Memorandum Circular No. TT- were given seven days from the date of implementation of the new system to pay their fines and
95-001 dated 15 April 1995. Respondent Garin, however, questioned the validity of MMDA redeem their license or vehicle plates. 7
Memorandum Circular No. TT-95-001, as he claims that it was passed by the Metro Manila Council
It would seem, therefore, that insofar as the absence of a prima facie case to enjoin the petitioner
in the absence of a quorum.
from confiscating drivers' licenses is concerned, recent events have overtaken the Court's need
Judge Helen Bautista-Ricafort issued a temporary restraining order on 26 September 1995, to decide this case, which has been rendered moot and academic by the implementation of
extending the validity of the TVR as a temporary driver's license for twenty more days. A Memorandum Circular No. 04, Series of 2004.
The petitioner, however, is not precluded from re-implementing Memorandum Circular No. TT-95- We restate here the doctrine in the said decision as it applies to the case at bar: police power, as
001, or any other scheme, for that matter, that would entail confiscating drivers' licenses. For the an inherent attribute of sovereignty, is the power vested by the Constitution in the legislature to
proper implementation, therefore, of the petitioner's future programs, this Court deems it make, ordain, and establish all manner of wholesome and reasonable laws, statutes and
appropriate to make the following observations: ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge
to be for the good and welfare of the commonwealth, and for the subjects of the same.
1. A license to operate a motor vehicle is a privilege that the state may withhold in the exercise
of its police power. Having been lodged primarily in the National Legislature, it cannot be exercised by any group or
body of individuals not possessing legislative power. The National Legislature, however, may
The petitioner correctly points out that a license to operate a motor vehicle is not a property right,
delegate this power to the president and administrative boards as well as the lawmaking bodies
but a privilege granted by the state, which may be suspended or revoked by the state in the
of municipal corporations or local government units (LGUs). Once delegated, the agents can
exercise of its police power, in the interest of the public safety and welfare, subject to the
exercise only such legislative powers as are conferred on them by the national lawmaking body.
procedural due process requirements. This is consistent with our rulings in Pedro v. Provincial
Board of Rizal 8 on the license to operate a cockpit, Tan v. Director of Forestry 9 and Oposa v. Our Congress delegated police power to the LGUs in the Local Government Code of 1991. 15 A
Factoran 10 on timber licensing agreements, and Surigao Electric Co., Inc. v. Municipality of local government is a "political subdivision of a nation or state which is constituted by law and has
Surigao 11 on a legislative franchise to operate an electric plant. substantial control of local affairs." 16 Local government units are the provinces, cities,
municipalities and barangays, which exercise police power through their respective legislative
Petitioner cites a long list of American cases to prove this point, such as State ex. Rel. Sullivan,
bodies.
12 which states in part that, "the legislative power to regulate travel over the highways and
thoroughfares of the state for the general welfare is extensive. It may be exercised in any Metropolitan or Metro Manila is a body composed of several local government units. With the
reasonable manner to conserve the safety of travelers and pedestrians. Since motor vehicles are passage of Rep. Act No. 7924 in 1995, Metropolitan Manila was declared as a "special
instruments of potential danger, their registration and the licensing of their operators have been development and administrative region" and the administration of "metro-wide" basic services
required almost from their first appearance. The right to operate them in public places is not a affecting the region placed under "a development authority" referred to as the MMDA. Thus:
natural and unrestrained right, but a privilege subject to reasonable regulation, under the police
power, in the interest of the public safety and welfare. The power to license imports further power . . . [T]he powers of the MMDA are limited to the following acts: formulation,
to withhold or to revoke such license upon noncompliance with prescribed conditions." coordination, regulation, implementation, preparation, management,
monitoring, setting of policies, installation of a system and administration.
Likewise, the petitioner quotes the Pennsylvania Supreme Court in Commonwealth v. Funk, 13 to There is no syllable in R. A. No. 7924 that grants the MMDA police
the effect that: "Automobiles are vehicles of great speed and power. The use of them constitutes power, let alone legislative power. Even the Metro Manila Council has
an element of danger to persons and property upon the highways. Carefully operated, an not been delegated any legislative power. Unlike the legislative bodies
automobile is still a dangerous instrumentality, but, when operated by careless or incompetent of the local government units, there is no provision in R. A. No. 7924
persons, it becomes an engine of destruction. The Legislature, in the exercise of the police power that empowers the MMDA or its Council to "enact ordinances,
of the commonwealth, not only may, but must, prescribe how and by whom motor vehicles shall approve resolutions and appropriate funds for the general welfare" of
be operated on the highways. One of the primary purposes of a system of general regulation of the inhabitants of Metro Manila. The MMDA is, as termed in the charter
the subject matter, as here by the Vehicle Code, is to insure the competency of the operator of itself, a "development authority." It is an agency created for the purpose
motor vehicles. Such a general law is manifestly directed to the promotion of public safety and is of laying down policies and coordinating with the various national
well within the police power." government agencies, people's organizations, non-governmental
organizations and the private sector for the efficient and expeditious
delivery of basic services in the vast metropolitan area. All its
The common thread running through the cited cases is that it is the legislature, in the exercise of functions are administrative in nature and these are actually summed
police power, which has the power and responsibility to regulate how and by whom motor vehicles up in the charter itself, viz:
may be operated on the state highways. HIAEcT
"Sec. 2. Creation of the Metropolitan Manila Development
2. The MMDA is not vested with police power. Authority. . . .

In Metro Manila Development Authority v. Bel-Air Village Association, Inc., 14 we categorically The MMDA shall perform planning, monitoring and coordinative
stated that Rep. Act No. 7924 does not grant the MMDA with police power, let alone legislative functions, and in the process exercise regulatory and
power, and that all its functions are administrative in nature. supervisory authority over the delivery of metro-wide services
within Metro Manila, without diminution of the autonomy of the
The said case also involved the herein petitioner MMDA which claimed that it had the authority to local government units concerning purely local matters." IcHSCT
open a subdivision street owned by the Bel-Air Village Association, Inc. to public traffic because it
is an agent of the state endowed with police power in the delivery of basic services in Metro Manila. xxx xxx xxx
From this premise, the MMDA argued that there was no need for the City of Makati to enact an
ordinance opening Neptune Street to the public. Clearly, the MMDA is not a political unit of government. The power
delegated to the MMDA is that given to the Metro Manila Council to
Tracing the legislative history of Rep. Act No. 7924 creating the MMDA, we concluded that the promulgate administrative rules and regulations in the implementation of
MMDA is not a local government unit or a public corporation endowed with legislative power, and, the MMDA's functions. There is no grant of authority to enact
unlike its predecessor, the Metro Manila Commission, it has no power to enact ordinances for the ordinances and regulations for the general welfare of the inhabitants
welfare of the community. Thus, in the absence of an ordinance from the City of Makati, its own of the metropolis. 17 (footnotes omitted, emphasis supplied)
order to open the street was invalid.
Therefore, insofar as Sec. 5(f) of Rep. Act No. 7924 is understood by the lower court and by the SYNOPSIS
petitioner to grant the MMDA the power to confiscate and suspend or revoke drivers' licenses
without need of any other legislative enactment, such is an unauthorized exercise of police power.
Petitioner Ortigas sold to the Hermosos a parcel of land in Greenhills Subdivision. The contract of
3. Sec. 5(f) grants the MMDA with the duty to enforce existing traffic rules and regulations. sale provided that the lot will be used for single-family residential building only and this was
Section 5 of Rep. Act No. 7924 enumerates the "Functions and Powers of the Metro Manila annotated at the back of the title of the lot. In 1981, the Metropolitan Commission enacted MMC
Development Authority." The contested clause in Sec. 5(f) states that the petitioner shall "install Ordinance No. 81-01 reclassifying as a commercial zone the stretch of Ortigas Avenue from
and administer a single ticketing system, fix, impose and collect fines and penalties for all kinds of Roosevelt Street to Madison Street. Subsequently in 1984, private respondent Mathay III leased
violations of traffic rules and regulations, whether moving or nonmoving in nature, and confiscate the lot from Hermoso and constructed a commercial building for Greenhills Autohaus, Inc., a car
and suspend or revoke drivers' licenses in the enforcement of such traffic laws and regulations, sales company.
the provisions of Rep. Act No. 4136 18 and P.D. No. 1605 19 to the contrary notwithstanding," Petitioner filed Civil Case No. 4 seeking to enjoin the building by respondent of structure on the
and that "(f)or this purpose, the Authority shall enforce all traffic laws and regulations in Metro lot and sought the demolition of the commercial structure for having violated the terms and
Manila, through its traffic operation center, and may deputize members of the PNP, traffic conditions of the Deed of Sale. The trial court issued the injunctive order ruling that the ordinance
enforcers of local government units, duly licensed security guards, or members of non- should be given prospective application. Oncertiorari, however, the CA granted the petition, ruling
governmental organizations to whom may be delegated certain authority, subject to such that the trial court gravely abused its discretion in refusing to treat MMC Ordinance No. 81-01 as
conditions and requirements as the Authority may impose." applicable to Civil Case No. 64931. CA held that the ordinance effectively nullified the restrictions
Thus, where there is a traffic law or regulation validly enacted by the legislature or those agencies allowing only residential use of the property in question.
to whom legislative powers have been delegated (the City of Manila in this case), the petitioner is In this petition, petitioner claims that even with the zoning ordinance, the seller and buyer of the
not precluded and in fact is duty-bound to confiscate and suspend or revoke drivers' licenses re-classified lot can voluntarily agree to an exclusive residential use thereof; and that respondent
in the exercise of its mandate of transport and traffic management, as well as the administration Mathay III as a mere lessee of the lot in question, is a total stranger to the deed of sale and is thus
and implementation of all traffic enforcement operations, traffic engineering services and traffic barred from questioning the condition of said deed.
education programs. 20
The Supreme Court denied the petition, ruling: that while as a rule, laws are to be construed as
This is consistent with our ruling in Bel-Air that the MMDA is a development authority created for having only prospective operation, one exception is a law which involves police power, which
the purpose of laying down policies and coordinating with the various national government could be given retroactive effect and may reasonably impair vested rights or contracts; that the
agencies, people's organizations, non-governmental organizations and the private sector, which MMC Ordinance No. 81-01 has been held to be a legitimate police power measure to which the
may enforce, but not enact, ordinances. non-impairment of contracts or vested rights clauses will have to yield; and that Mathay III in this
This is also consistent with the fundamental rule of statutory construction that a statute is to be case is clearly a real party in interest because he holds the lot pursuant to a valid lease and it is
read in a manner that would breathe life into it, rather than defeat it, 21and is supported by the his building of a commercial structure which petitioner seeks to enjoin.
criteria in cases of this nature that all reasonable doubts should be resolved in favor of the
constitutionality of a statute. 22
SYLLABUS
A last word. The MMDA was intended to coordinate services with metro-wide impact that
transcend local political boundaries or would entail huge expenditures if provided by the individual
LGUs, especially with regard to transport and traffic management, 23 and we are aware of the 1. STATUTORY CONSTRUCTION; LAWS ARE GENERALLY GIVEN PROSPECTIVE
valiant efforts of the petitioner to untangle the increasingly traffic-snarled roads of Metro Manila. APPLICATION; LAW WHICH INVOLVES POLICE POWER IS AN EXCEPTION. In general,
But these laudable intentions are limited by the MMDA's enabling law, which we can but interpret, we agree that laws are to be construed as having only prospective operation. Lex prospicit, non
and petitioner must be reminded that its efforts in this respect must be authorized by a valid law, respicit. Equally settled, only laws existing at the time of the execution of a contract are applicable
or ordinance, or regulation arising from a legitimate source. AEDISC thereto and are not later statutes, unless the latter are specifically intended to have a retroactive
effect. A later law which enlarges, abridges, or in any manner changes the intent of the parties to
WHEREFORE, the petition is dismissed. the contract necessarily impairs the contract itself and cannot be given retroactive effect without
SO ORDERED. violating the constitutional prohibition against impairment of contracts. But, the foregoing principles
do admit of certain exceptions. One involves police power. A law enacted in the exercise of police
[G.R. No. 126102. December 4, 2000.] power to regulate or govern certain activities or transactions could be given retroactive effect and
may reasonably impair vested rights or contracts. Police power legislation is applicable not only
to future contracts, but equally to those already in existence. Nonimpairment of contracts or vested
ORTIGAS & CO. LTD., petitioner, vs. THE COURT OF APPEALS and rights clauses will have to yield to the superior and legitimate exercise by the State of police power
ISMAEL G. MATHAY III, respondents. to promote the health, morals, peace, education, good order, safety, and general welfare of the
people. Moreover, statutes in exercise of valid police power must be read into every contract.

2. CONSTITUTIONAL LAW; POLICE POWER; CONTRACTUAL STIPULATIONS AND VESTED


Atty. Eulogio R. Rodriguez for petitioner. RIGHTS MUST YIELD TO POLICE POWER; CASE AT BAR. Noteworthy, inSangalang vs.
Intermediate Appellate Court, we already upheld MMC Ordinance No. 81-01 as a legitimate police
Puhawan Aldon & Associates Law Offices for private respondent. power measure. Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank & Trust Co., 94 SCRA
533 (1979), the contractual stipulations annotated on the Torrens Title, on which Ortigas relies,
must yield to the ordinance. When that stretch of Ortigas Avenue from Roosevelt Street to Madison
Street was reclassified as a commercial zone by the Metropolitan Manila Commission in March
1981, the restrictions in the contract of sale between Ortigas and Hermoso, limiting all construction 14. . . . restrictions shall run with the land and shall be construed as real
on the disputed lot to single-family residential buildings, were deemed extinguished by the covenants until December 31, 2025 when they shall cease and
retroactive operation of the zoning ordinance and could no longer be enforced. While our legal terminate . . . 1
system upholds the sanctity of contract so that a contract is deemed law between the contracting
parties, nonetheless, stipulations in a contract cannot contravene "law, morals, good customs, These and the other conditions were duly annotated on the certificate of title issued to Emilia.
public order, or public policy." Otherwise such stipulations would be deemed null and void.
In 1981, the Metropolitan Manila Commission (now Metropolitan Manila Development Authority)
3. REMEDIAL LAW; CIVIL PROCEDURE; REAL PARTY IN INTEREST; LESSEE WHO BUILT enacted MMC Ordinance No. 81-01, also known as the Comprehensive Zoning Area for the
COMMERCIAL STRUCTURE SOUGHT TO BE DEMOLISHED IS A REAL PARTY IN INTEREST. National Capital Region. The ordinance reclassified as a commercial area a portion of Ortigas
By real interest is meant a present substantial interest, as distinguished from a mere Avenue from Madison to Roosevelt Streets of Greenhills Subdivision where the lot is located.
expectancy or a future, contingent, subordinate, or consequential interest. Tested by the foregoing
definition, private respondent in this case is clearly a real party in interest. It is not disputed that On June 8, 1984, private respondent Ismael Mathay III leased the lot from Emilia Hermoso and
he is in possession of the lot pursuant to valid lease. He is a possessor in the concept of a "holder J.P. Hermoso Realty Corp.. The lease contract did not specify the purposes of the lease.
of the thing" under Article 525 of the Civil Code. He was impleaded as a defendant in the amended Thereupon, private respondent constructed a single story commercial building for Greenhills
complaint in Civil Case No. 64931. Further, what petitioner seeks to enjoin is the building by Autohaus, Inc., a car sales company.
respondent of a commercial structure on the lot. Clearly, it is private respondent's acts which are
On January 18, 1995, petitioner filed a complaint against Emilia Hermoso with the Regional Trial
in issue, and his interest in said issue cannot be a mere incidental interest. In its amended
Court of Pasig, Branch 261. Docketed as Civil Case No. 64931, the complaint sought the
complaint, petitioner prayed for, among others, judgment "ordering the demolition of all
demolition of the said commercial structure for having violated the terms and conditions of the
improvements illegally built on the lot in question." These show that it is petitioner Mathay III, doing
Deed of Sale. Complainant prayed for the issuance of a temporary restraining order and a writ of
business as "Greenhills Autohaus, Inc.," and not only the Hermosos, who will be adversely
preliminary injunction to prohibit petitioner from constructing the commercial building and/or
affected by the court's decree. ACEIac
engaging in commercial activity on the lot. The complaint was later amended to implead Ismael
G. Mathay III and J.P. Hermoso Realty Corp., which has a ten percent (10%) interest in the lot.

In his answer, Mathay III denied any knowledge of the restrictions on the use of the lot and filed a
DECISION cross-claim against the Hermosos.

On June 16, 1995, the trial court issued the writ of preliminary injunction. On June 29, 1995,
Mathay III moved to set aside the injunctive order, but the trial court denied the motion.

QUISUMBING, J p: Mathay III then filed with the Court of Appeals a special civil action for certiorari, docketed as CA-
G.R. SP No. 39193, ascribing to the trial court grave abuse of discretion in issuing the writ of
This petition seeks to reverse the decision of the Court of Appeals, dated March 25, 1996, in CA- preliminary injunction. He claimed that MMC Ordinance No. 81-01 classified the area where the
G.R. SP No. 39193, which nullified the writ of preliminary injunction issued by the Regional Trial lot was located as commercial area and said ordinance must be read into the August 25, 1976
Court of Pasig City, Branch 261, in Civil Case No. 64931. It also assails the resolution of the Deed of Sale as a concrete exercise of police power.
appellate court, dated August 13, 1996, denying petitioner's motion for reconsideration. ATcEDS

The facts of this case, as culled from the records, are as follows:
Ortigas and Company averred that inasmuch as the restrictions on the use of the lot were duly
On August 25, 1976, petitioner Ortigas & Company sold to Emilia Hermoso, a parcel of land known annotated on the title it issued to Emilia Hermoso, said restrictions must prevail over the ordinance,
as Lot 1, Block 21, Psd-66759, with an area of 1,508 square meters, located in Greenhills specially since these restrictions were agreed upon before the passage of MMC Ordinance No.
Subdivision IV, San Juan, Metro Manila, and covered by Transfer Certificate of Title No. 0737. 81-01.
The contract of sale provided that the lot:
On March 25, 1996, the appellate court disposed of the case as follows:
1. . . . (1) be used exclusively . . . for residential purposes only, and not
WHEREFORE, in light of the foregoing, the petition is hereby GRANTED.
more than one single-family residential building will be
The assailed orders are hereby nullified and set aside.
constructed thereon, . . .
SO ORDERED. 2
xxx xxx xxx
6. The BUYER shall not erect . . . any sign or billboard on the roof . . . for In finding for Mathay III, the Court of Appeals held that the MMC Ordinance No. 81-01 effectively
advertising purposes . . . nullified the restrictions allowing only residential use of the property in question.

xxx xxx xxx Ortigas seasonably moved for reconsideration, but the appellate court denied it on August 13,
1996.
11. No single-family residential building shall be erected . . . until the
building plans, specification . . . have been approved by the Hence, the instant petition.
SELLER . . .
In its Memorandum, petitioner now submits that the "principal issue in this case is whether
xxx xxx xxx respondent Court of Appeals correctly set aside the Order dated June 16, 1995 of the trial court
which issued the writ of preliminary injunction on the sole ground that MMC Ordinance No. 81-01
nullified the building restriction imposing exclusive residential use on the property in question." 3 effect so as to discontinue all rights previously acquired over lands located within the zone which
It also asserts that "Mathay III lacks legal capacity to question the validity of conditions of the deed are neither residential nor light industrial in nature,"15 and stated with respect to agricultural areas
of sale; and he is barred by estoppel or waiver to raise the same question like his principals, the covered that "the zoning ordinance should be given prospective operation only." 16 The area in
owners." 4 Lastly, it avers that the appellate court "unaccountably failed to address" several this case involves not agricultural but urban residential land. Ordinance No. 81-01 retroactively
questions of fact. affected the operation of the zoning ordinance in Greenhills by reclassifying certain locations
therein as commercial.
Principally, we must resolve the issue of whether the Court of Appeals erred in holding that the
trial court committed grave abuse of discretion when it refused to apply MMC Ordinance No. 81- Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank & Trust Co., 94 SCRA 533 (1979), the
01 to Civil Case No. 64931. contractual stipulations annotated on the Torrens Title, on which Ortigas relies, must yield to the
ordinance. When that stretch of Ortigas Avenue from Roosevelt Street to Madison Street was
But first, we must address petitioner's allegation that the Court of Appeals "unaccountably failed reclassified as a commercial zone by the Metropolitan Manila Commission in March 1981, the
to address" questions of fact. For basic is the rule that factual issues may not be raised before this restrictions in the contract of sale between Ortigas and Hermoso, limiting all construction on the
Court in a petition for review and this Court is not duty-bound to consider said questions. 5 CA- disputed lot to single-family residential buildings, were deemed extinguished by the retroactive
G.R. SP No. 39193 was a special civil action for certiorari, and the appellate court only had to operation of the zoning ordinance and could no longer be enforced. While our legal system
determine if the trial court committed grave abuse of discretion amounting to want or excess of upholds the sanctity of contract so that a contract is deemed law between the contracting parties,
jurisdiction in issuing the writ of preliminary injunction. Thus, unless vital to our determination of 17 nonetheless, stipulations in a contract cannot contravene "law, morals, good customs, public
the issue at hand, we shall refrain from further consideration of factual questions. order, or public policy." 18 Otherwise such stipulations would be deemed null and void.
Respondent court correctly found that the trial court committed in this case a grave abuse of
Petitioner contends that the appellate court erred in limiting its decision to the cited zoning discretion amounting to want of or excess of jurisdiction in refusing to treat Ordinance No. 81-01
ordinance. It avers that a contractual right is not automatically discarded once a claim is made that as applicable to Civil Case No. 64931. In resolving matters in litigation, judges are not only duty-
it conflicts with police power. Petitioner submits that the restrictive clauses in the questioned bound to ascertain the facts and the applicable laws, 19 they are also bound by their oath of office
contract is not in conflict with the zoning ordinance. For one, according to petitioner, the MMC to apply the applicable law. 20
Ordinance No. 81-01 did not prohibit the construction of residential buildings. Petitioner argues
that even with the zoning ordinance, the seller and buyer of the re-classified lot can voluntarily As a secondary issue, petitioner contends that respondent Mathay III, as a mere lessee of the lot
agree to an exclusive residential use thereof. Hence, petitioner concludes that the Court of in question, is a total stranger to the deed of sale and is thus barred from questioning the conditions
Appeals erred in holding that the condition imposing exclusive residential use was effectively of said deed. Petitioner points out that the owners of the lot voluntarily agreed to the restrictions
nullified by the zoning ordinance. EcHAaS on the use of the lot and do not question the validity of these restrictions. Petitioner argues that
Mathay III as a lessee is merely an agent of the owners, and could not override and rise above
In its turn, private respondent argues that the appellate court correctly ruled that the trial court had the status of his principals. Petitioner submits that he could not have a higher interest than those
acted with grave abuse of discretion in refusing to subject the contract to the MMC Ordinance No. of the owners, the Hermosos, and thus had no locus standi to file CA-G.R. SP No. 39193 to
81-01. He avers that the appellate court properly held the police power superior to the non- dissolve the injunctive writ issued by the RTC of Pasig City.
impairment of contract clause in the Constitution. He concludes that the appellate court did not err
in dissolving the writ of preliminary injunction issued by the trial court in excess of its jurisdiction. For his part, private respondent argues that as the lessee who built the commercial structure, it is
he and he alone who stands to be either benefited or injured by the results of the judgment in Civil
We note that in issuing the disputed writ of preliminary injunction, the trial court observed that the Case No. 64931. He avers he is the party with real interest in the subject matter of the action, as
contract of sale was entered into in August 1976, while the zoning ordinance was enacted only in it would be his business, not the Hermosos', which would suffer had not the respondent court
March 1981. The trial court reasoned that since private respondent had failed to show that MMC dissolved the writ of preliminary injunction.
Ordinance No. 81-01 had retroactive effect, said ordinance should be given prospective
application only, 6 citing Co vs. Intermediate Appellate Court, 162 SCRA 390 (1988). A real party in interest is defined as "the party who stands to be benefited or injured by the
judgment or the party entitled to the avails of the suit." "Interest" within the meaning of the rule
In general, we agree that laws are to be construed as having only prospective operation. Lex means material interest, an interest in issue and to be affected by the decree, as distinguished
prospicit, non respicit. Equally settled, only laws existing at the time of the execution of a contract from mere interest in the question involved, or a mere incidental interest. 21 By real interest is
are applicable thereto and not later statutes, unless the latter are specifically intended to have meant a present substantial interest, as distinguished from a mere expectancy or a future,
retroactive effect. 7 A later law which enlarges, abridges, or in any manner changes the intent of contingent, subordinate, or consequential interest. 22
the parties to the contract necessarily impairs the contract itself 8 and cannot be given retroactive
effect without violating the constitutional prohibition against impairment of contracts. 9 Tested by the foregoing definition, private respondent in this case is clearly a real party in interest.
It is not disputed that he is in possession of the lot pursuant to a valid lease. He is a possessor in
But, the foregoing principles do admit of certain exceptions. One involves police power. A law the concept of a "holder of the thing" under Article 525 of the Civil Code. 23 He was impleaded as
enacted in the exercise of police power to regulate or govern certain activities or transactions a defendant in the amended complaint in Civil Case No. 64931. Further, what petitioner seeks to
could be given retroactive effect and may reasonably impair vested rights or contracts. Police enjoin is the building by respondent of a commercial structure on the lot. Clearly, it is private
power legislation is applicable not only to future contracts, but equally to those already in respondent's acts which are in issue, and his interest in said issue cannot be a mere incidental
existence. 10 Non-impairment of contracts or vested rights clauses will have to yield to the superior interest. In its amended complaint, petitioner prayed for, among others, judgment "ordering the
and legitimate exercise by the State of police power to promote the health, morals, peace, demolition of all improvements illegally built on the lot in question." 24 These show that it is
education, good order, safety, and general welfare of the people. 11 Moreover, statutes in exercise petitioner Mathay III, doing business as "Greenhills Autohaus, Inc.," and not only the Hermosos,
of valid police power must be read into every contract. 12 Noteworthy, in Sangalang vs. who will be adversely affected by the court's decree.
Intermediate Appellate Court, 13 we already upheld MMC Ordinance No. 81-01 as a legitimate
police power measure.

The trial court's reliance on the Co vs. IAC, 14 is misplaced. In Co, the disputed area was
agricultural and Ordinance No. 81-01 did not specifically provide that "it shall have retroactive
Petitioner also cites the rule that a stranger to a contract has no rights or obligations under it, 25 small sector of society, i.e., print media enterprises. The benefits which flow from a heightened
and thus has no standing to challenge its validity. 26 But in seeking to enforce the stipulations in level of information on and the awareness of the electoral process are commonly thought to be
the deed of sale, petitioner impleaded private respondent as a defendant. Thus petitioner must community-wide; the burdens should be allocated on the same basis.
recognize that where a plaintiff has impleaded a party as a defendant, he cannot subsequently
question the latter's standing in court. 27 3. ID.; POLICE POWER; REQUISITES FOR A VALID EXERCISE THEREOF NOT COMPLIED
WITH IN CASE AT BAR. As earlier noted, the Solicitor General also contended that Section 2
WHEREFORE, the instant petition is DENIED. The challenged decision of the Court of Appeals of Resolution No. 2772, even if read as compelling publishers to "donate" "Comelec space," may
dated March 25, 1996, as well as the assailed resolution of August 13, 1996, in CA-G.R. SP No. be sustained as a valid exercise of the police power of the state. This argument was, however,
39193 is AFFIRMED. Costs against petitioner. made too casually to require prolonged consideration on our part. Firstly, there was no effort (and
apparently no inclination on the part of Comelec) to show that the police power essentially a
SO ORDERED. power of legislation has been constitutionally delegated to respondent Commission. Secondly,
while private property may indeed be validly taken in the legitimate exercise of the police power
[G.R. No. 119694. May 22, 1995.] of the state, there was no attempt to show compliance in the instant case with the requisites of a
lawful taking under the police power. Section 2 of Resolution No. 2772 is a blunt and heavy
instrument that purports, without a showing of existence of a national emergency or other
PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of 139 imperious public necessity, indiscriminately and without regard to the individual business condition
members, represented by its President Amado P. Macasaet and its of particular newspapers or magazines located in differing parts of the country, to take private
Executive Director Ermin F. Garcia, Jr., petitioner, vs. COMMISSION property of newspaper or magazine publishers. No attempt was made to demonstrate that a real
ON ELECTIONS, respondent. and palpable or urgent necessity for the taking of print space confronted the Comelec and that
Section 2 of Resolution No. 2772 was itself the only reasonable and calibrated response to such
necessity available to the Comelec. Section 2 does not constitute a valid exercise of the police
SYLLABUS power of the State.

4. ID.; SUPREME COURT; POWER OF JUDICIAL REVIEW; CONSTITUTIONALITY OF SEC. 8


1. CONSTITUTIONAL LAW; BILL OF RIGHTS; PROHIBITION AGAINST TAKING OF PRIVATE COMELEC RESOLUTION NO. 2772, WITHOUT ACTUAL CONTROVERSY, IS NOT RIPE FOR
PROPERTY FOR PUBLIC USE WITHOUT JUST COMPENSATION; COMPELLING JUDICIAL REVIEW; CASE AT BAR. Section 8 of Resolution No. 2772 should be viewed in the
PUBLISHERS TO "DONATE" COMELEC SPACE, A VIOLATION OF. To compel print media context of our decision in National Press Club v. Commission on Elections. There the Court
companies to donate "Comelec space" of the dimensions specified in Section 2 of Resolution No. sustained the constitutionality of Section 11 (b) of R.A. No. 6646, known as the Electoral Reforms
2722 (not less than one-half page), amounts to "taking" of private personal property for public use Law of 1987, which prohibits the sale or donation of print space and airtime for campaign or other
or purposes. Section 2 failed to specify the intended frequency of such compulsory "donation": political purposes, except to the Comelec. In doing so, the Court carefully distinguished (a) paid
only once during the period from 6 March 1995 (or 21 March 1995) until 12 May 1995? or everyday political advertisements which are reached by the prohibition of Section 11 (b), from (b) the
or once a week? or as often as Comelec may direct during the same period? The extent of the reporting of news, commentaries and expressions of belief or opinion by reporters, broadcasters,
taking or deprivation is not insubstantial; this is not a case of a de minimis temporary limitation or editors, commentators or columnists which fall outside the scope of Section 11 (b) and which are
restraint upon the use of private property. The monetary value of the compulsory "donation," protected by the constitutional guarantees of freedom of speech and of the press. . . . Section 8
measured by the advertising rates ordinarily charged by newspaper publishers whether in cities of Resolution No. 2772 appears to represent the effort of the Comelec to establish a guideline for
or in non-urban areas, may be very substantial indeed. The taking of private property for public implementation of the above-quoted distinction and doctrine in National Press Club, an effort not
use is, of course, authorized bythe Constitution, but not without payment of "just compensation" blessed with evident success. Section 2 of Resolution No. 2772-A while possibly helpful, does not
(Article III, Section 9). And apparently the necessity of paying compensation for "Comelec space" add substantially to the utility of Section 8 of Resolution No. 2772. The distinction between paid
is precisely what is sought to be avoided by respondent Commission, whether Section 2 of political advertisements on the one hand and news reports, commentaries and expressions of
Resolution No. 2772 is read as petitioner PPI reads it, as an assertion of authority to require belief or opinion by reporters, broadcasters, editors, etc. on the other hand, can realistically be
newspaper publishers to "donate" free print space for Comelec purposes, or as an exhortation, or given operative meaning only in actual cases or controversies, on a case-to-case basis, in terms
perhaps an appeal, to publishers to donate free print space, as Section 1 of Resolution No. 2772- of very specific sets of facts. At all events, the Court is bound to note that PPI has failed to allege
A attempts to suggest. The threshold requisites for a lawful taking of private property for public any specific affirmative action on the part of Comelec designed to enforce or implement Section
use need to be examined here: one is the necessity for the taking; another is the legal authority 8. PPI has not claimed that it or any of its members has sustained actual or imminent injury by
to effect the taking. The element of necessity for the taking has not been shown by respondent reason of Comelec action under Section 8. Put a little differently, the Court considers that the
Comelec. It has not been suggested that the members of PPI are unwilling to sell print space at precise constitutional issue here sought to be raised whether or not Section 8 of Resolution No.
their normal rates to Comelec for election purposes. Indeed, the unwillingness or reluctance of 2772 constitutes a permissible exercise of the Comelec's power under Article IX, Section 4 of the
Comelec to buy print space lies at the heart of the problem. Similarly, it has not been suggested, Constitution . . . is not ripe for judicial review for lack of an actual case or controversy involving,
let alone demonstrated, that Comelec has been granted the power of eminent domain either by as the very lis mota thereof, the constitutionality of Section 8.
the Constitution or by the legislative authority. A reasonable relationship between that power and
the enforcement and administration of election laws by Comelec must be shown; it is not casually
to be assumed. . . . Section 2 does not constitute a valid exercise of the power of eminent domain.
RESOLUTION
2. ID.; ID.; ID.; ID.; PUBLIC FUNDS, NOT PUBLISHERS SOLELY, SHOULD BEAR COSTS FOR
PUBLIC INFORMATION OF ELECTORAL PROCESSES. The ruling here laid down by the
Court is entirely in line with the theory of democratic representative government. The economic
costs of informing the general public about the qualifications and programs of those seeking
elective office are most appropriately distributed as widely as possible throughout our society by FELICIANO, J p:
the utilization of public funds, especially funds raised by taxation, rather than cast solely on one
The Philippine Press Institute, Inc. ("PPI") is before this Court assailing the accounts or comments which manifestly favor or oppose any candidate or
constitutional validity of Resolution No. 2772 issued by respondent Commission on Elections political party by unduly or repeatedly referring to or including therein said
("Comelec") and its corresponding Comelec directive dated 22 March 1995, through a candidate or political party. However, unless the facts and circumstances
Petition for Certiorari and Prohibition. Petitioner PPI is a non-stock, non-profit organization of clearly indicate otherwise, the Commission will respect the determination
newspaper and magazine publishers. cdphil by the publisher and/or editors of the newspapers or publication that the
accounts or views published are significant, newsworthy and of public
On 2 March 1995, Comelec promulgated Resolution No. 2772, which reads in part:
interest." (Emphasis supplied)
xxx xxx xxx
Apparently in implementation of this Resolution, Comelec through Commissioner
Sec. 2. Comelec Space. The Commission shall procure free print space Regalado E. Maambong sent identical letters, dated 22 March 1995, to various publishers of
of not less than one half (1/2) page in at least one newspaper of general newspapers like the Business World, the Philippine Star, the Malaya and the Philippine
circulation in every province or city for use as 'Comelec Space' from March Times Journal, all members of PPI. These letters read as follows:
6, 1995 in the case of candidates for senators and from March 21, 1995
"This is to advise you that pursuant to Resolution No. 2772 of the
until May 12, 1995. In the absence of said newspaper, 'Comelec Space'
Commission on Elections, you are directed to provide free print space of
shall be obtained from any magazine or periodical of said province or city.
not less than one half () page for use as 'Comelec Space' or similar to
Sec. 3. Uses of Comelec Space. 'Comelec Space' shall be allocated by the print support which you have extended during the May 11, 1992
the Commission, free of charge, among all candidates within the area in synchronized elections which was 2 full pages for each political party
which the newspaper, magazine or periodical is circulated to enable the fielding senatorial candidates, from March 6, 1995 to May 6, 1995, to make
candidates to make known their qualifications, their stand on public issues known to their qualifications, their stand on public issues and their
and their platforms and programs of government. platforms and programs of government.

'Comelec Space' shall also be used by the Commission for dissemination We shall be informing the political parties and candidates to submit directly
of vital election information. to you their pictures, biographical data, stand on key public issues and
platforms of government, either as raw data or in the form of positives or
Sec. 4. Allocation of Comelec Space. (a) 'Comelec Space' shall be camera-ready materials.
available to all candidates during the periods stated in Section 2 hereof. Its
allocation shall be equal and impartial among all candidates for the same Please be reminded that the political parties/candidates may be
office. All candidates concerned shall be furnished a copy of the allocation accommodated in your publications any day upon receipt of their materials
of 'Comelec Space' for their information, guidance and compliance. until May 6, 1995 which is the day for campaigning.

(b) Any candidate desiring to avail himself of 'Comelec Space' from We trust you to extend your full support and cooperation in this regard."
newspapers or publications based in the Metropolitan Manila Area shall (Emphasis supplied)
submit an application therefor, in writing, to the Committee on Mass Media
In this Petition for Certiorari and Prohibition with prayer for the issuance of a
of the Commission. Any candidate desiring to avail himself of 'Comelec
Temporary restraining order, PPI asks us to declare Comelec Resolution No. 2772
Space' in newspapers or publications based in the provinces shall submit
unconstitutional and void on the ground that it violates the prohibition imposed by the
his application therefor, in writing, to the Provincial Election Supervisor
Constitution upon the government, and any of its agencies, against the taking of private
concerned. Applications for availment of 'Comelec Space' may be filed at
property for public use without just compensation. Petitioner also contends that the 22 March
any time from the date of effectivity of this Resolution.
1995 letter directives of Comelec requiring publishers to give free "Comelec Space" and at
the same time process raw data to make it camera-ready, constitute impositions of
involuntary servitude, contrary to the provisions of Section 18 (2), Article III of the 1987
(c) The Committee on Mass Media and the Provincial Election Supervisors Constitution. Finally, PPI argues that Section 8 of Comelec Resolution No. 2772 is violative
shall allocate available 'Comelec Space' among the candidates concerned of the constitutionally guaranteed freedom of speech, of the press and of expression. 1
by lottery of which said candidates shall be notified in advance, in writing, On 20 April 1995, this Court issued a Temporary Restraining Order enjoining
to be present personally or by representative to witness the lottery at the Comelec from enforcing and implementing Section 2 of Resolution No. 2772, as well as the
date, time and place specified in the notice. Any party objecting to the result Comelec directives addressed to various print media enterprises all dated 22 March 1995.
of the lottery may appeal to the Commission. The Court also required the respondent to file a Comment on the Petition. prcd
(d) The candidates concerned shall be notified by the Committee on Mass The Office of the Solicitor General filed its Comment on behalf of respondent
Media or the Provincial Election Supervisor, as the case may be, Comelec alleging that Comelec Resolution No. 2772 does not impose upon the publishers
sufficiently in advance and in writing of the date of issue and the newspaper any obligation to provide free print space in the newspapers as it does not provide any
or publication allocated to him, and the time within which he must submit criminal or administrative sanction for non-compliance with that Resolution. According to the
the written material for publication in the 'Comelec Space'. Solicitor General, the questioned Resolution merely established guidelines to be followed in
connection with the procurement of "Comelec space," the procedure for and mode of
xxx xxx xxx allocation of such space to candidates and the conditions or requirements for the candidate's
utilization of the "Comelec space" procured. At the same time, however, the Solicitor General
Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers.
argues that even if the questioned Resolution and its implementing letter directives are
No newspaper or publication shall allow to be printed or published in the
viewed as mandatory, the same would nevertheless be valid as an exercise of the police
news, opinion, features, or other sections of the newspaper or publication
power of the State. The Solicitor general also maintains that Section 8 of Resolution No. 2772 of the reading that petitioner PPI has given it. That Resolution No. 2772 does not, in express
is a permissible exercise of the power of supervisor or regulation of the Comelec over the terms, threaten publishers who would disregard it or its implementing letters with some
communication and information operations of print media enterprises during the election criminal or other sanction, does not by itself demonstrate that the Comelec's original intention
period to safeguard and ensure a fair, impartial and credible election. 2 was simply to solicit or request voluntary donations of print space from publishers. A written
communication officially directing a print media company to supply free print space,
At the oral hearing of this case held on 28 April 1995, respondent Comelec through
dispatched by government (here a constitutional) agency and signed by member of the
its Chairman, Hon. Bernardo Pardo, in response to inquiries from the Chief Justice and other
Commission presumably legally authorized to do so, is bound to produce a coercive effect
Members of the Court, stated that Resolution No. 2772, particularly Section 2 thereof and the
upon the company so addressed. That the agency may not be legally authorized to impose,
22 March 1995 letters dispatched to various members of petitioner PPI, were not intended to
or cause the imposition of, criminal or other sanctions for disregard of such direction, only
compel those members to supply Comelec with free print space. Chairman Pardo
aggravates the constitutional difficulties inhering in the present situation. The enactment or
represented to the Court that that Resolution and the related letter-directives were merely
addition of such sanctions by the legislative authority itself would be open to serious
designed to solicit from the publishers the same free print space which many publishers had
constitutional objection.
voluntarily given to Comelec during the election period relating to the 11 May 1992 elections.
Indeed, the Chairman stated that the Comelec would, that very afternoon, meet and adopt To compel print media companies to donate "Comelec space" of the dimensions
an appropriate amending or clarifying resolution, a certified true copy of which would forthwith specified in Section 2 of Resolution No. 2772 (not less than one-half Page), amounts to
be filed with the Court. cdrep "taking" of private personal property for public use or purposes. Section 2 failed to specify
the intended frequency of such compulsory "donation:" only once during the period from 6
On 5 May 1995, the Court received from the Office of the Solicitor general a
March 1995 (or 21 March 1995) until 12 May 1995? or everyday or once a week? or has
manifestation which attached a copy of Comelec resolution No. 2772-A dated 4 May 1995.
often as Comelec may direct during the same period? the extent of the taking or deprivation
The operative portion of this Resolution follows:
is not insubstantial; this is not a case of a de minimis temporary limitation or restraint upon
NOW THEREFORE, pursuant to the powers vested in it by the the use of private property. The monetary value of the compulsory "donation," measured by
Constitution, the Omnibus Election Code, Republic Acts No. 6646 and the advertising rates ordinarily charged by newspaper publishers whether in cities or in non-
7166 and other election laws, the Commission on Elections RESOLVED to urban areas, may be very substantial indeed. LexLib
clarify Sections 2 and 8 of Res. No. 2772 as follows:

1. Section 2 of Res. No. 2772 shall not be construed to mean as The taking of print space here sought to be effected may first be appraised under
requiring publishers of the different mass media print the rubric of expropriation of private personal property for public use. The threshold requisites
publications to provide print space under pain of for a lawful taking of private property for public use need to be examined here: one is the
prosecution, whether administrative, civil or criminal, necessity for the taking; another is the legal authority to effect the taking. The element of
there being no sanction or penalty for violation of said necessity for the taking has not been shown by respondent Comelec. It has not been
Section provided for either in said Resolution or in suggested that the members of PPI are unwilling to sell print space at their normal rates to
Section 90 of Batas Pambansa Blg. 881, otherwise Comelec for election purposes. Indeed, the unwillingness or reluctance of Comelec to buy
known as the Omnibus Election Code, on the grant of print space lies at the heart of the problem. 3 Similarly, it has not been suggested, let alone
'Comelec Space.' demonstrated, that Comelec has been granted the power of imminent domain either by the
Constitution or by the legislative authority. A reasonable relationship between that power and
2. Section 8 of Res. No. 2772 shall not be construed to mean as the enforcement and administration of election laws by Comelec must be shown; it is not
constituting prior restraint on the part of the publishers casually to be assumed.
with respect to the printing or publication of materials
in the news, opinion, features or other sections of their That the taking is designed to subserve "public use" is not contested by petitioner
respective publications or other accounts or PPI. We note only that, under Section 3 of Resolution No. 2772, the free "Comelec space"
comments, it being clear from the last sentence of said sought by the respondent Commission would be used not only for informing the public about
Section 8 that the Commission shall, 'unless the facts the identities, qualifications and programs of government of candidates for elective office but
and circumstances clearly indicate otherwise . . . also for "dissemination of vital election information" (including, presumably, circulars,
respect the determination by the publishers and/or regulations, notices, directives, etc. issued by Comelec). It seems to the Court a matter of
editors of the newspapers or publications that the judicial notice that government offices and agencies (including the Supreme Court) simply
accounts or views published are significant, purchase print space, in the ordinary course of events, when their rules and regulations,
newsworthy and of public interest.' circulars, notices and so forth need officially to be brought to the attention of the general
public.
This Resolution shall take effect upon approval." (Emphasis in the original)
The taking of private property for public use is, of course, authorized by the
While, at this point, the Court could perhaps simply dismiss the petition for Constitution, but not without payment of "just compensation" (Article III, Section 9). And
Certiorari and Prohibition as having become moot and academic, we consider it not apparently the necessity of paying compensation for "Comelec space" is precisely what is
inappropriate to pass upon the first constitutional issue raised in this case. Our hope is to put sought to be avoided by respondent Commission, whether Section 2 of Resolution No. 2772
this issue to rest and prevent its resurrection. is read as petitioner PPI reads it, as an assertion of authority to require newspaper publishers
to "donate" free print space for Comelec purposes, or as an exhortion, or perhaps an appeal,
Section 2 of Resolution No. 2772 is not a model of clarity in expression. Section 1 to publishers to donate free print space, as Section 1 of Resolution No. 2772-A attempts to
of Resolution No. 2772-A did not try to redraft Section 2; accordingly, Section 2 of resolution suggest. There is nothing at all to prevent newspaper and magazine publishers from
No. 2772 persists in its original form. Thus, we must point out that, as presently worded, and voluntarily giving free print space to Comelec for the purposes contemplated in Resolution
in particular as interpreted and applied by the Comelec itself in its 22 March 1995 letter- No. 2772. Section 2 of Resolution No. 2772 does not, however, provide a constitutional basis
directives to newspaper publishers, Section 2 of Resolution No. 2772 is clearly susceptible
for compelling publishers, against their will, in the kind of factual context here present, to donation, of print space and air time for campaign or other political
provide free print space for Comelec purposes. Section 2 does not constitute a valid exercise purposes. Section 11 (b) does not purport in any way to restrict the
of the power of eminent domain. Cdpr reporting by newspapers or radio or television stations of news or news-
noteworthy events relating to candidates, their qualifications, political
We would note that the ruling here laid down by the Court is entirely in line with the
parties and programs of government. Moreover, Section 11 (b) does not
theory of democratic representative government. The economic costs of informing the
reach commentaries and expressions of belief or opinion by reporters or
general public about the qualifications and programs of those seeking elective office are most
broadcasters or editors or commentators or columnists in respect of
appropriately distributed as widely as possible throughout our society by the utilization of
candidates, their qualifications, and programs and so forth, so long at least
public funds, especially funds raised by taxation, rather than cast solely on one small sector
as such comments, opinions and beliefs are not in fact advertisements for
of society, i.e., print media enterprises. The benefits which flow from a heightened level of
particular candidates covertly paid for. In sum Section 11 (b) is not to be
information on and the awareness of the electoral process are commonly thought to be
read as reaching any report or commentary or other coverage that, in
community-wide; the burdens should be allocated on the same basis.
responsible media, is not paid for by candidates for political office. We read
As earlier noted, the Solicitor General also contended that Section 2 of Resolution Section 11 (b) as designed to cover only paid political advertisements of
No. 2772, even if read as compelling publishers to "donate" "Comelec space," may be particular candidates.
sustained as a valid exercise of the police power of the state. This argument was, however,
made too casually to require prolonged consideration on their part. Firstly, there was no effort The above limitation in scope of application of Section 11 (b) that it does
(and apparently no inclination on the part of Comelec) to show that the police power not restrict either the reporting of or the expression of belief or opinion or
essentially a power of legislation has been constitutionally delegated to respondent comment upon the qualifications and programs and activities of any and all
Commission. 4 Secondly, while private property may indeed be validly taken in the legitimate candidates for office constitutes the critical distinction which must be
exercise of the police power of the state, there was no attempt to show compliance in the made between the instant case and that of Sanidad v. Commission on
instant case with the requisites of a lawful taking under the police power. 5 Elections. . . ."7 (Citations omitted; emphasis supplied)

Section 2 of Resolution No. 2772 is a blunt and heavy instrument that purports, Section 8 of Resolution No. 2772 appears to represent the effort of the
without a showing of existence of a national emergency or other imperious public necessity, Comelec to establish a guidelines for implementation of the above-quoted distinction
indiscriminately and without regard to the individual business condition of particular and doctrine in National Press Club, an effort not blessed with evident success.
newspapers or magazines located in different parts of the country, to take private property of Section 2 of Resolution No. 2772-A while possibly helpful, does not add substantially
newspaper or magazine publishers. No attempt was made to demonstrate that a real and to the utility of Section 8 of Resolution No. 2772. The distinction between paid political
palpable or urgent necessity for the taking of print space confronted the Comelec and that advertisements on the one hand and news reports, commentaries and expressions of
Section 2 of Resolution No. 2772 was itself the only reasonable and calibrated response to belief or opinion by reporters, broadcasters, editors, etc. on the other hand, can
such necessity available to Comelec. Section 2 does not constitute a valid exercise of the realistically be given operative meaning only in actual cases or controversies, on a
police power of the State. case-to-case basis, in terms of very specific sets of facts.
We turn to Section 8 of Resolution No. 2772, which needs to be quoted in full At all events, the Court is bound to note that PPI has failed to allege any
again: specific affirmative action on the part of Comelec designed to enforce or implement
Section 8. PPI has not claimed that it or any of its members has sustained actual or
Sec. 8. Undue Reference to Candidates/Political parties in
imminent injury by reason of Comelec action under Section 8. Put a little differently,
Newspaper. No newspaper or publication shall allow to be printed or
the Court considers that the precise constitutional issue here sought to be raised
published in the news, opinion, features, or other sections of the
whether or not Section 8 of Resolution No. 2772 constitutes a permissible exercise of
newspaper or publication accounts or comments which manifest favor or
the Comelec's power under Article IX, Section 4 of the Constitution to
oppose any candidate or political party by unduly or repeatedly referring to
or including therein said candidate or political party. However, unless the "supervise or regulate the enjoyment or utilization of all franchise or
facts and circumstances clearly indicates otherwise, the Commission will permits for the operation of media of communication or
respect the determination by the publisher and/or editors of the information [for the purpose of ensuring] equal opportunity, time
newspapers or publications that the accounts or views published are and space, and the right of reply, including reasonable, equal rates
significant, newsworthy and of public interest." therefor, for public-information campaigns and forums among
candidates in connection with the objective of holding free, orderly,
It is not easy to understand why Section 8 was included at all in Resolution No
honest, peaceful and credible elections "
2772. In any case, Section 8 should be viewed in the context of our decision inNational Press
Club v. Commission on Elections. 6 There the Court sustained the constitutionality of Section
11 (b) of R.A. No. 6646, known as the Electoral Reforms Law of 1987, which prohibits the
sale or donation of print space and airtime for campaign or other political purposes, except is not ripe for judicial review for lack of an actual case or controversy involving, as the
to the Comelec. In doing so, the Court carefully distinguished (a) paid political advertisements very lis mota thereof, the constitutionality of Section 8.
which are reached by the prohibition of Section 11 (b), from (b) the reporting of news,
commentaries and expressions of belief or opinion by reporters, broadcasters, editors, 1. Section 2 of Resolution No. 2772, in its present form and as interpreted by
commentators or columnists which fall outside the scope of Section 11 (b) and which are Comelec in its 22 March 1995 letter directives, purports to require print media
protected by the constitutional guarantees of freedom of speech and of the press: LLjur enterprises to "donate" free print space to Comelec. As such, Section 2 suffers from
fatal constitutional vice and must be set aside and nullified. cdll
"Secondly, and more importantly, Section 11 (b) is limited in its scope of
application. Analysis of Section 11 (b) shows that it purports to apply only 2. To the extent it pertains to Section 8 of Resolution No. 2772, the Petition
to the purchase and sale, including purchase and sale disguised as a for Certiorari and Prohibition must be dismissed for lack of an actual, justiciable case
or controversy.
WHEREFORE, for all the foregoing, the Petition for Certiorari and Prohibition This petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify the
is GRANTED in part and Section 2 of Resolution No. 2772 in its present from and the Decision, 1 dated May 16, 2000, of the Court of Appeals in CA-G.R. SP No. 37283. The appellate
related letter-directives dated 22 March 1995 are hereby SET ASIDE as null and void, court affirmed the judgment 2 dated December 19, 1994, of the Regional Trial Court (RTC) of
and the Temporary Restraining Order is hereby MADE PERMANENT. The Petition is Manila, Branch 52, in Civil Case No. 93-66530. The trial court allowed the respondents to take
DISMISSED in part, to the extent it relates to Section 8 of Resolution No. 2772. No their physician's oath and to register as duly licensed physicians. Equally challenged is the
pronouncement as to costs. Resolution 3 promulgated on August 25, 2000 of the Court of Appeals, denying petitioners' Motion
for Reconsideration.
Narvasa, C.J ., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza and Francisco, JJ., concur. The facts of this case are as follows:
Quiason, J., is on leave. The respondents are all graduates of the Fatima College of Medicine, Valenzuela City, Metro
Manila. They passed the Physician Licensure Examination conducted in February 1993 by the
[G.R. No. 144681. June 21, 2004.]
Board of Medicine (Board). Petitioner Professional Regulation Commission (PRC) then released
their names as successful examinees in the medical licensure examination.
PROFESSIONAL REGULATION COMMISSION (PRC), CHAIRMAN Shortly thereafter, the Board observed that the grades of the seventy-nine successful examinees
HERMOGENES P. POBRE, ASSOCIATE COMMISSIONER ARMANDO from Fatima College in the two most difficult subjects in the medical licensure exam, Biochemistry
PASCUAL, BOARD OF MEDICINE, CHAIRMAN RODOLFO P. DE (Bio-Chem) and Obstetrics and Gynecology (OB-Gyne), were unusually and exceptionally high.
GUZMAN, JOSE S. RAMIREZ, JUANITO B. BILLOTE, RUBEN R. Eleven Fatima examinees scored 100% in Bio-Chem and ten got 100% in OB-Gyne, another
POLICARPIO, EDGARDO T. FERNANDO and RICARDO D. eleven got 99% in Bio-Chem, and twenty-one scored 99% in OB-Gyne. The Board also observed
FULGENCIO II, petitioners, vs. ARLENE V. DE GUZMAN, VIOLETA V. that many of those who passed from Fatima got marks of 95% or better in both subjects, and no
MENESES, CELERINA S. NAVARRO, JOSE RAMONCITO P. one got a mark lower than 90%. A comparison of the performances of the candidates from other
NAVARRO, ARNEL V. HERRERA and GERALDINE ELIZABETH M. schools was made. The Board observed that strangely, the unusually high ratings were true only
PAGILAGAN, ELNORA R. RAQUENO, MARISSA A. REGODON, for Fatima College examinees. It was a record-breaking phenomenon in the history of the
LAURA M. SANTOS, KARANGALAN D. SERRANO, DANILO A. Physician Licensure Examination.
VILLAVER, MARIA ROSARIO L. LEONOR, ALICIA S. LIZANO,
MARITEL M. ECHIVERRI, BERNADETTE T. MENDOZA, FERNANDO F. On June 7, 1993, the Board issued Resolution No. 19, withholding the registration as physicians
MANDAPAT, ALELI A. GOLLAYAN, ELCIN C. ARRIOLA, of all the examinees from the Fatima College of Medicine. 4 The PRC asked the National Bureau
HERMINIGILDA E. CONEJOS, SALLY B. BUNAGAN, ROGELIO B. of Investigation (NBI) to investigate whether any anomaly or irregularity marred the February 1993
ANCHETA, OSCAR H. PADUA, JR., EVELYN D. GRAJO, EVELYN S. Physician Licensure Examination.
ACOSTA, MARGARITA BELINDA L. VICENCIO, VALENTINO P.
ARBOLEDA, EVELYN O. RAMOS, ACHILLES J. PERALTA, CORAZON Prior to the NBI investigation, the Board requested Fr. Bienvenido F. Nebres, S.J., an expert
M. CRUZ, LEUVINA P. CHICO, JOSEPH A. JAO, MA. LUISA S. mathematician and authority in statistics, and later president of the Ateneo de Manila University,
GUTIERREZ, LYDIA C. CHAN, OPHELIA C. HIDALGO, FERNANDO T. to conduct a statistical analysis of the results in Bio-Chem and Ob-Gyne of the said examination.
CRUZ, MELVIN M. USITA, RAFAEL I. TOLENTINO, GRACE E. UY,
CHERYL R. TRIGUERO, MICHAEL L. SERRANO, FEDERICO L. On June 10, 1993, Fr. Nebres submitted his report. He reported that a comparison of the scores
CASTILLO, MELITA J. CAEDO, SAMUEL B. BANGOY, BERNARDITA in Bio-Chem and Ob-Gyne, of the Fatima College examinees with those of examinees from De La
B. SY, GLORIA T. JULARBAL, FREDERICK D. FRANCISCO, CARLOS Salle University and Perpetual Help College of Medicine showed that the scores of Fatima College
M. BERNARDO, JR., HUBERT S. NAZARENO, CLARISSA B. BACLIG, examinees were not only incredibly high but unusually clustered close to each other. He concluded
DAYMINDA G. BONTUYAN, BERNADETTE H. CABUHAT, NANCY J. that there must be some unusual reason creating the clustering of scores in the two subjects. It
CHAVEZ, MARIO D. CUARESMA, ERNESTO L. CUE, EVELYN C. must be a cause "strong enough to eliminate the normal variations that one should expect from
CUNDANGAN, RHONEIL R. DEVERATURDA, DERILEEN D. DORADO, the examinees [of Fatima College] in terms of talent, effort, energy, etc." 5
SAIBZUR N. EDDING, VIOLETA C. FELIPE, HERMINIO V.
FERNANDEZ, JR., MARIA VICTORIA M. LACSAMANA, NORMA G. For its part, the NBI found that "the questionable passing rate of Fatima examinees in the [1993]
LAFAVILLA, RUBY B. LANTIN, MA. ELOISA Q. MALLARI, CLARISA Physician Examination leads to the conclusion that the Fatima examinees gained early access to
SJ. NICOLAS, PERCIVAL H. PANGILINAN, ARNULFO A. SALVADOR, the test questions." 6
ROBERT B. SANCHEZ, MERLY D. STA. ANA and YOLANDA P. UNICA, On July 5, 1993, respondents Arlene V. De Guzman, Violeta V. Meneses, Celerina S. Navarro,
respondents. Jose Ramoncito P. Navarro, Arnel V. Herrera, and Geraldine Elizabeth M. Pagilagan (Arlene V.
De Guzman et al., for brevity) filed a special civil action for mandamus, with prayer for preliminary
mandatory injunction docketed as Civil Case No. 93-66530 with the Regional Trial Court (RTC) of
Manila, Branch 52. Their petition was adopted by the other respondents as intervenors.
DECISION
Meanwhile, the Board issued Resolution No. 26, dated July 21, 1993, charging respondents with
"immorality, dishonest conduct, fraud, and deceit" in connection with the Bio-Chem and Ob-Gyne
examinations. It recommended that the test results of the Fatima examinees be nullified. The case
was docketed as Adm. Case No. 1687 by the PRC.
TINGA, J p:
On July 28, 1993, the RTC issued an Order in Civil Case No. 93-66530 granting the preliminary A day before the first hearing, on September 22, 1994, the petitioners filed an Urgent Ex-Parte
mandatory injunction sought by the respondents. It ordered the petitioners to administer the Manifestation and Motion praying for the partial reconsideration of the appellate court's decision
physician's oath to Arlene V. De Guzman et al., and enter their names in the rolls of the PRC. in CA-G.R. SP No. 34506, and for the outright dismissal of Civil Case No. 93-66530. The
petitioners asked for the suspension of the proceedings.
The petitioners then filed a special civil action for certiorari with the Court of Appeals to set aside
the mandatory injunctive writ, docketed as CA-G.R. SP No. 31701. In its Order dated September 23, 1994, the trial court granted the aforesaid motion, cancelled the
scheduled hearing dates, and reset the proceedings to October 21 and 28, 1994.
On October 21, 1993, the appellate court decided CA-G.R. SP No. 31701, with the dispositive
portion of the Decision ordaining as follows: Meanwhile, on October 25, 1994, the Court of Appeals denied the partial motion for
reconsideration in CA-G.R. SP No. 34506. Thus, petitioners filed with the Supreme Court a petition
WHEREFORE, this petition is GRANTED. Accordingly, the writ of for review docketed as G.R. No. 117817, entitled Professional Regulation Commission, et al. v.
preliminary mandatory injunction issued by the lower court against Court of Appeals, et al.
petitioners is hereby nullified and set aside.

SO ORDERED. 7
On November 11, 1994, counsel for the petitioners failed to appear at the trial of Civil Case No.
Arlene V. de Guzman, et al., then elevated the foregoing Decision to this Court in G.R. No. 112315. 93-66530. Upon motion of the respondents herein, the trial court ruled that herein petitioners
In our Resolution dated May 23, 1994, we denied the petition for failure to show reversible error waived their right to cross-examine the herein respondents. Trial was reset to November 28, 1994.
on the part of the appellate court. DcCEHI
On November 25, 1994, petitioners' counsel moved for the inhibition of the trial court judge for
Meanwhile, on November 22, 1993, during the pendency of the instant petition, the pre-trial alleged partiality. On November 28, 1994, the day the Motion to Inhibitwas to be heard, petitioners
conference in Civil Case No. 93-66530 was held. Then, the parties, agreed to reduce the failed to appear. Thus, the trial court denied the Motion to Inhibit and declared Civil Case No. 93-
testimonies of their respective witnesses to sworn questions-and-answers. This was without 66530 deemed submitted for decision.
prejudice to cross-examination by the opposing counsel.
On December 19, 1994, the trial court handed down its judgment in Civil Case No. 93-66530, the
On December 13, 1993, petitioners' counsel failed to appear at the trial in the mistaken belief that fallo of which reads:
the trial was set for December 15. The trial court then ruled that petitioners waived their right to
cross-examine the witnesses. WHEREFORE, judgment is rendered ordering the respondents to allow the
petitioners and intervenors (except those with asterisks and footnotes in
On January 27, 1994, counsel for petitioners filed a Manifestation and Motion stating the reasons pages 1 & 2 of this decision) [sic], 9 to take the physician's oath and to
for her non-appearance and praying that the cross-examination of the witnesses for the opposing register them as physicians.
parties be reset. The trial court denied the motion for lack of notice to adverse counsel. It also
denied the Motion for Reconsideration that followed on the ground that adverse counsel was It should be made clear that this decision is without prejudice to any
notified less than three (3) days prior to the hearing. administrative disciplinary action which may be taken against any of the
petitioners for such causes and in the manner provided by law and
Meanwhile, to prevent the PRC and the Board from proceeding with Adm. Case No. 1687, the consistent with the requirements of the Constitution as any other
respondents herein moved for the issuance of a restraining order, which the lower court granted professionals.
in its Order dated April 4, 1994.
No costs.
The petitioners then filed with this Court a petition for certiorari docketed as G.R. No. 115704, to
annul the Orders of the trial court dated November 13, 1993, February 28, 1994, and April 4, 1994. SO ORDERED. 10
We referred the petition to the Court of Appeals where it was docketed as CA-G.R. SP No. 34506.
As a result of these developments, petitioners filed with this Court a petition for review on certiorari
On August 31, 1994, the appellate court decided CA-G.R. SP No. 34506 as follows: docketed as G.R. No. 118437, entitled Professional Regulation Commission v. Hon. David G.
Nitafan, praying inter alia, that (1) G.R. No. 118437 be consolidated with G.R. No. 117817; (2) the
WHEREFORE, the present petition for certiorari with prayer for temporary decision of the Court of Appeals dated August 31, 1994 in CA-G.R. SP No. 34506 be nullified for
restraining order/preliminary injunction is GRANTED and the Orders of its failure to decree the dismissal of Civil Case No. 93-66530, and in the alternative, to set aside
December 13, 1993, February 7, 1994, February 28, 1994, and April 4, the decision of the trial court in Civil Case No. 93-66530, order the trial court judge to inhibit
1994 of the RTC-Manila, Branch 52, and all further proceedings taken by himself, and Civil Case No. 93-66530 be re-raffled to another branch.
it in Special Civil Action No. 93-66530 are hereby DECLARED NULL and
VOID. The said RTC-Manila is ordered to allow petitioners' counsel to On December 26, 1994, the petitioners herein filed their Notice of Appeal 11 in Civil Case No. 93-
cross-examine the respondents' witnesses, to allow petitioners to present 66530, thereby elevating the case to the Court of Appeals, where it was docketed as CA-G.R. SP
their evidence in due course of trial, and thereafter to decide the case on No. 37283.
the merits on the basis of the evidence of the parties. Costs against
respondents. In our Resolution of June 7, 1995, G.R. No. 118437 was consolidated with G.R. No. 117817.

IT IS SO ORDERED. 8 On July 9, 1998, we disposed of G.R. Nos. 117817 and 118437 in this wise:

The trial was then set and notices were sent to the parties. WHEREFORE, the petition in G.R. No. 117817 is DISMISSED for being
moot. The petition in G.R. No. 118437 is likewise DISMISSED on the
ground that there is a pending appeal before the Court of Appeals.
Assistant Solicitor General Amparo M. Cabotaje-Tang is advised to be To our mind, the only issue is: Did the Court of Appeals commit a reversible error of law in
more circumspect in her dealings with the courts as a repetition of the same sustaining the judgment of the trial court that respondents are entitled to a writ of mandamus?
or similar acts will be dealt with accordingly.
The petitioners submit that a writ of mandamus will not lie in this case. They point out that for a
SO ORDERED. 12 writ of mandamus to issue, the applicant must have a well-defined, clear and certain legal right to
the thing demanded and it is the duty of the respondent to perform the act required. Thus,
While CA-G.R. SP No. 37283 was awaiting disposition by the appellate court, Arnel V. Herrera, mandamus may be availed of only when the duty sought to be performed is a ministerial and not
one of the original petitioners in Civil Case No. 93-66530, joined by twenty-seven intervenors, to a discretionary one. The petitioners argue that the appellate court's decision in CA-G.R. SP No.
wit: Fernando F. Mandapat, Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, 37283 upholding the decision of the trial court in Civil Case No. 93-66530 overlooked its own
Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R. Triguero, pronouncement in CA-G.R. SP No. 31701. The Court of Appeals held in CA-G.R. SP No. 31701
Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos, Maritel M. that the issuance of a license to engage in the practice of medicine becomes discretionary on the
Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno- PRC if there exists some doubt that the successful examinee has not fully met the requirements
Rabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario L. of the law. The petitioners stress that this Court's Resolution dated May 24, 1994 in G.R. No.
Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-Palma, Margarita Belinda L. Vicencio- 112315 held that there was no showing "that the Court of Appeals had committed any reversible
Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose error in rendering the questioned judgment" in CA-G.R. SP No. 31701. The petitioners point out
Ramoncito P. Navarro, manifested that they were no longer interested in proceeding with the case that our Resolution in G.R. No. 112315 has long become final and executory.
and moved for its dismissal. A similar manifestation and motion was later filed by intervenors Mary
Jean I. Yeban-Merlan, Michael L. Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Respondents counter that having passed the 1993 licensure examinations for physicians, the
Rabara, Yolanda P. Unica, Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, petitioners have the obligation to administer to them the oath as physicians and to issue their
Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D. Francisco, Violeta certificates of registration as physicians pursuant to Section 20 16 of Rep. Act No. 2382. The Court
V. Meneses, Melita J. Caedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano, of Appeals in CA-G.R. SP No. 37283, found that respondents complied with all the requirements
Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. The Court of Appeals ruled of Rep. Act No. 2382. Furthermore, respondents were admitted by the Medical Board to the
that its decision in CA-G.R. SP No. 37283 would not apply to them. licensure examinations and had passed the same. Hence, pursuant to Section 20 of Rep. Act No.
2382, the petitioners had the obligation to administer their oaths as physicians and register them.
On May 16, 2000, the Court of Appeals decided CA-G.R. SP No. 37283, with the following fallo,
to wit: Mandamus is a command issuing from a court of competent jurisdiction, in the name of the state
or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or
WHEREFORE, finding no reversible error in the decision appealed from, person requiring the performance of a particular duty therein specified, which duty results from the
We hereby AFFIRM the same and DISMISS the instant appeal. official station of the party to whom the writ is directed, or from operation of law. 17 Section 3 of
Rule 65 18 of the 1997 Rules of Civil Procedure outlines two situations when a writ of mandamus
No pronouncement as to costs. may issue, when any tribunal, corporation, board, officer or person unlawfully (1) neglects the
SO ORDERED. 13 performance of an act which the law specifically enjoins as a duty resulting from an office, trust,
or station; or (2) excludes another from the use and enjoyment of a right or office to which the
In sustaining the trial court's decision, the appellate court ratiocinated that the respondents other is entitled.
complied with all the statutory requirements for admission into the licensure examination for
We shall discuss the issues successively.
physicians in February 1993. They all passed the said examination. Having fulfilled the
requirements of Republic Act No. 2382, 14 they should be allowed to take their oaths as physicians 1. On The Existence of a Duty of the Board of Medicine To Issue Certificates of Registration as
and be registered in the rolls of the PRC. aSDHCT Physicians under Rep. Act No. 2382.
Hence, this petition raising the following issues: For mandamus to prosper, there must be a showing that the officer, board, or official concerned,
has a clear legal duty, not involving discretion. 19 Moreover, there must be statutory authority for
I
the performance of the act, 20 and the performance of the duty has been refused. 21 Thus, it must
WHETHER OR NOT RESPONDENTS HAVE A VALID CAUSE OF be pertinently asked now: Did petitioners have the duty to administer the Hippocratic Oath and
ACTION FOR MANDAMUS AGAINST PETITIONERS IN THE LIGHT OF register respondents as physicians under the Medical Act of 1959?
THE RESOLUTION OF THIS HONORABLE COURT IN G.R. NO. 112315
As found by the Court of Appeals, on which we agree on the basis of the records:
AFFIRMING THE COURT OF APPEALS' DECISION DECLARING THAT
IF EVER THERE IS SOME DOUBT AS TO THE MORAL FITNESS OF It bears emphasizing herein that petitioner-appellees and intervenor-
EXAMINEES, THE ISSUANCE OF LICENSE TO PRACTICE MEDICINE appellees have fully complied with all the statutory requirements for
IS NOT AUTOMATICALLY GRANTED TO THE SUCCESSFUL admission into the licensure examinations for physicians conducted and
EXAMINEES. administered by the respondent-appellants on February 12, 14, 20 and 21,
1993. Stress, too, must be made of the fact that all of them successfully
II
passed the same examinations. 22
WHETHER OR NOT THE PETITION FOR MANDAMUS COULD
The crucial query now is whether the Court of Appeals erred in concluding that petitioners
PROCEED DESPITE THE PENDENCY OF ADMINISTRATIVE CASE NO.
should allow the respondents to take their oaths as physicians and register them, steps which
1687, WHICH WAS PRECISELY LODGED TO DETERMINE THE MORAL
would enable respondents to practice the medical profession 23 pursuant to Section 20 of
FITNESS OF RESPONDENTS TO BECOME DOCTORS. 15
the Medical Act of 1959?
Biochemistry examinations." It likewise sought to cancel the examination results obtained by the
examinees from the Fatima College. cHaADC
The appellate court relied on a single provision, Section 20 of Rep. Act No. 2382, in concluding
that the petitioners had the ministerial obligation to administer the Hippocratic Oath to respondents Section 8 30 of Rep. Act No. 2382 prescribes, among others, that a person who aspires to practice
and register them as physicians. But it is a basic rule in statutory construction that each part of a medicine in the Philippines, must have "satisfactorily passed the corresponding Board
statute should be construed in connection with every other part to produce a harmonious whole, Examination." Section 22, in turn, provides that the oath may only be administered "to physicians
not confining construction to only one section. 24 The intent or meaning of the statute should be who qualified in the examinations." The operative word here is "satisfactorily," defined as
ascertained from the statute taken as a whole, not from an isolated part of the provision. "sufficient to meet a condition or obligation" or "capable of dispelling doubt or ignorance." 31
Accordingly, Section 20, of Rep. Act No. 2382, as amended should be read in conjunction with Gleaned from Board Resolution No. 26, the licensing authority apparently did not find that the
the other provisions of the Act. Thus, to determine whether the petitioners had the ministerial respondents "satisfactorily passed" the licensure examinations. The Board instead sought to
obligation to administer the Hippocratic Oath to respondents and register them as physicians, nullify the examination results obtained by the respondents.
recourse must be had to the entirety of the Medical Act of 1959.
2. On the Right Of The Respondents To Be Registered As Physicians
A careful reading of Section 20 of the Medical Act of 1959 discloses that the law uses the word
"shall" with respect to the issuance of certificates of registration. Thus, the petitioners "shall sign The function of mandamus is not to establish a right but to enforce one that has been established
and issue certificates of registration to those who have satisfactorily complied with the by law. If no legal right has been violated, there can be no application of a legal remedy, and the
requirements of the Board." In statutory construction the term "shall" is a word of command. It is writ of mandamus is a legal remedy for a legal right. 32 There must be a well-defined, clear and
given imperative meaning. Thus, when an examinee satisfies the requirements for the grant of his certain legal right to the thing demanded. 33 It is long established rule that a license to practice
physician's license, the Board is obliged to administer to him his oath and register him as a medicine is a privilege or franchise granted by the government. 34
physician, pursuant to Section 20 and par. (1) of Section 22 25 of the Medical Act of 1959.
It is true that this Court has upheld the constitutional right 35 of every citizen to select a profession
However, the surrounding circumstances in this case call for serious inquiry concerning the or course of study subject to a fair, reasonable, and equitable admission and academic
satisfactory compliance with the Board requirements by the respondents. The unusually high requirements. 36 But like all rights and freedoms guaranteed by the Charter, their exercise may
scores in the two most difficult subjects was phenomenal, according to Fr. Nebres, the consultant be so regulated pursuant to the police power of the State to safeguard health, morals, peace,
of PRC on the matter, and raised grave doubts about the integrity, if not validity, of the tests. These education, order, safety, and general welfare of the people. 37 Thus, persons who desire to
doubts have to be appropriately resolved. engage in the learned professions requiring scientific or technical knowledge may be required to
take an examination as a prerequisite to engaging in their chosen careers. This regulation takes
Under the second paragraph of Section 22, the Board is vested with the power to conduct particular pertinence in the field of medicine, to protect the public from the potentially deadly effects
administrative investigations and "disapprove applications for examination or registration," of incompetence and ignorance among those who would practice medicine. In a previous case, it
pursuant to the objectives of Rep. Act No. 2382 as outlined in Section 1 26 thereof. In this case, may be recalled, this Court has ordered the Board of Medical Examiners to annul both its
after the investigation, the Board filed before the PRC, Adm. Case No. 1687 against the resolution and certificate authorizing a Spanish subject, with the degree of Licentiate in Medicine
respondents to ascertain their moral and mental fitness to practice medicine, as required by and Surgery from the University of Barcelona, Spain, to practice medicine in the Philippines,
Section 9 27 of Rep. Act No. 2382. In its Decisiondated July 1, 1997, the Board ruled: without first passing the examination required by the Philippine Medical Act. 38 In another case
worth noting, we upheld the power of the State to upgrade the selection of applicants into medical
WHEREFORE, the BOARD hereby CANCELS the respondents[']
schools through admission tests. 39
examination papers in the Physician Licensure Examinations given in
February 1993 and further DEBARS them from taking any licensure It must be stressed, nevertheless, that the power to regulate the exercise of a profession or pursuit
examination for a period of ONE (1) YEAR from the date of the of an occupation cannot be exercised by the State or its agents in an arbitrary, despotic, or
promulgation of this DECISION. They may, if they so desire, apply for the oppressive manner. A political body that regulates the exercise of a particular privilege has the
scheduled examinations for physicians after the lapse of the period authority to both forbid and grant such privilege in accordance with certain conditions. Such
imposed by the BOARD. conditions may not, however, require giving up ones constitutional rights as a condition to
acquiring the license. 40 Under the view that the legislature cannot validly bestow an arbitrary
SO ORDERED. 28
power to grant or refuse a license on a public agency or officer, courts will generally strike down
Until the moral and mental fitness of the respondents could be ascertained, according to license legislation that vests in public officials discretion to grant or refuse a license to carry on
petitioners, the Board has discretion to hold in abeyance the administration of the Hippocratic Oath some ordinarily lawful business, profession, or activity without prescribing definite rules and
and the issuance of the certificates to them. The writ of mandamus does not lie to compel conditions for the guidance of said officials in the exercise of their power. 41
performance of an act which is not duly authorized.
In the present case, the aforementioned guidelines are provided for in Rep. Act No. 2382, as
The respondents nevertheless argue that under Section 20, the Board shall not issue a certificate amended, which prescribes the requirements for admission to the practice of medicine, the
of registration only in the following instances: (1) to any candidate who has been convicted by a qualifications of candidates for the board examinations, the scope and conduct of the
court of competent jurisdiction of any criminal offense involving moral turpitude; (2) or has been examinations, the grounds for denying the issuance of a physician's license, or revoking a license
found guilty of immoral or dishonorable conduct after the investigation by the Board; or (3) has that has been issued. Verily, to be granted the privilege to practice medicine, the applicant must
been declared to be of unsound mind. They aver that none of these circumstances are present in show that he possesses all the qualifications and none of the disqualifications. Furthermore, it
their case. must appear that he has fully complied with all the conditions and requirements imposed by the
law and the licensing authority. Should doubt taint or mar the compliance as being less than
Petitioners reject respondents' argument. We are informed that in Board Resolution No. 26, 29 satisfactory, then the privilege will not issue. For said privilege is distinguishable from a matter of
dated July 21, 1993, the Board resolved to file charges against the examinees from Fatima College right, which may be demanded if denied. Thus, without a definite showing that the aforesaid
of Medicine for "immorality, dishonesty, fraud, and deceit in the Obstetrics-Gynecology and requirements and conditions have been satisfactorily met, the courts may not grant the writ of
mandamus to secure said privilege without thwarting the legislative will.
3. On the Ripeness of the Petition for Mandamus Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and
Melvin M. Usita. Following these manifestations and motions, the appellate court in CA-G.R. SP
Lastly, the petitioners herein contend that the Court of Appeals should have dismissed the petition No. 37283 decreed that its ruling would not apply to them. Thus, inasmuch as the instant case is
for mandamus below for being premature. They argue that the administrative remedies had not a petition for review of the appellate court's ruling in CA-G.R. SP No. 37283, a decision which is
been exhausted. The records show that this is not the first time that petitioners have sought the inapplicable to the aforementioned respondents will similarly not apply to them.
dismissal of Civil Case No. 93-66530. This issue was raised in G.R. No. 115704, which petition
we referred to the Court of Appeals, where it was docketed as CA-G.R. SP No. 34506. On motion As to Achilles J. Peralta, Evelyn O. Ramos, Sally B. Bunagan, Rogelio B. Ancheta, Oscar H.
for reconsideration in CA-G.R. SP No. 34506, the appellate court denied the motion to dismiss on Padua, Jr., Evelyn D. Grajo, Valentino P. Arboleda, Carlos M. Bernardo, Jr., Mario D. Cuaresma,
the ground that the prayers for the nullification of the order of the trial court and the dismissal of Violeta C. Felipe, Percival H. Pangilinan, Corazon M. Cruz and Samuel B. Bangoy, herein decision
Civil Case No. 93-66530 were inconsistent reliefs. In G.R. No. 118437, the petitioners sought to shall not apply pursuant to the Orders of the trial court in Civil Case No. 93-66530, dropping their
nullify the decision of the Court of Appeals in CA-G.R. SP No. 34506 insofar as it did not order the names from the suit.
dismissal of Civil Case No. 93-66530. In our consolidated decision, dated July 9, 1998, in G.R.
Nos. 117817 & 118437, this Court speaking through Justice Bellosillo opined that: Consequently, this Decision is binding only on the remaining respondents, namely: Arlene V. de
Guzman, Celerina S. Navarro, Rafael I. Tolentino, Bernardita B. Sy, Gloria T. Jularbal, Hubert S.
Nazareno, Nancy J. Chavez, Ernesto L. Cue, Herminio V. Fernandez, Jr., Maria Victoria M.
Lacsamana and Merly D. Sta. Ana, as well as the petitioners.
Indeed, the issue as to whether the Court of Appeals erred in not ordering
the dismissal of Civil Case No. 93-66530 sought to be resolved in the WHEREFORE, the instant petition is GRANTED. Accordingly, (1) the assailed decision dated May
instant petition has been rendered meaningless by an event taking place 16, 2000, of the Court of Appeals, in CA-G.R. SP No. 37283, which affirmed the judgment dated
prior to the filing of this petition and denial thereof should follow as a logical December 19, 1994, of the Regional Trial Court of Manila, Branch 52, in Civil Case No. 93-66530,
consequence. 42 There is no longer any justiciable controversy so that any ordering petitioners to administer the physician's oath to herein respondents as well as the
declaration thereon would be of no practical use or value. 43 It should be resolution dated August 25, 2000, of the appellate court, denying the petitioners' motion for
recalled that in its decision of 19 December 1994 the trial court granted the reconsideration, are REVERSED and SET ASIDE; and (2) the writ of mandamus, issued in Civil
writ of mandamus prayed for by private respondents, which decision was Case No. 93-66530, and affirmed by the appellate court in CA-G.R. SP No. 37283 is NULLIFIED
received by petitioners on 20 December 1994. Three (3) days after, or on AND SET ASIDE. EcICDT
23 December 1994, petitioners filed the instant petition. By then, the
remedy available to them was to appeal the decision to the Court of SO ORDERED.
Appeals, which they in fact did, by filing a notice of appeal on 26 December
1994. 44 [G.R. No. 120095. August 5, 1996.]

The petitioners have shown no cogent reason for us to reverse the aforecited ruling. Nor will their
reliance upon the doctrine of the exhaustion of administrative remedies in the instant case JMM PROMOTION AND MANAGEMENT, INC., and KARY
advance their cause any. INTERNATIONAL, INC., petitioners, vs. HON. COURT OF APPEALS,
HON. MA. NIEVES CONFESSOR, then Secretary of the Department of
Section 26 45 of the Medical Act of 1959 provides for the administrative and judicial remedies that Labor and Employment, HON. JOSE BRILLANTES, in his capacity as
respondents herein can avail to question Resolution No. 26 of the Board of Medicine, namely: (a) acting Secretary of the Department of Labor and Employment and
appeal the unfavorable judgment to the PRC; (b) should the PRC ruling still be unfavorable, to HON. FELICISIMO JOSON, in his capacity as Administrator of the
elevate the matter on appeal to the Office of the President; and (c) should they still be unsatisfied, Philippine Overseas Employment Administration, respondents.
to ask for a review of the case or to bring the case to court via a special civil action of certiorari.
Thus, as a rule,mandamus will not lie when administrative remedies are still available. 46
However, the doctrine of exhaustion of administrative remedies does not apply where, as in this
Don P. Porciuncula for petitioner.
case, a pure question of law is raised. 47 On this issue, no reversible error may, thus, be laid at
the door of the appellate court in CA-G.R. SP No. 37283, when it refused to dismiss Civil Case Ma. Bezen Ringpis Liban/Solicitor General for respondents.
No. 93-66530.

As we earlier pointed out, herein respondents Arnel V. Herrera, Fernando F. Mandapat, Ophelia
C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, SYLLABUS
Ma. Eloisa Q. Mallari-Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn
S. Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C. Escusa, Carlosito C.
Domingo, Alicia S. Lizano, Elnora R. Raqueno-Rabaino, Saibzur N. Edding, Derileen D. Dorado- 1. POLITICAL LAW; INHERENT POWERS OF THE STATE; POLICE POWER; NATURE AND
Edding, Robert B. Sanchez, Maria Rosario Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan- SCOPE. The latin maxim salus populi est suprema lex embodies the character of the entire
Palma, Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio, spectrum of public laws aimed at promoting the general welfare of the people under the State's
Elcin C. Arriola-Ocampo, and Jose Ramoncito P. Navarro manifested to the Court of Appeals police power. As an inherent attribute of sovereignty which virtually "extends to all public needs,"
during the pendency of CA-G.R. SP No. 37283, that they were no longer interested in proceeding this "least limitable" of governmental powers grants a wide panoply of instruments through which
with the case and moved for its dismissal insofar as they were concerned. A similar manifestation the state, as parens patriaegives effect to a host of its regulatory powers. Describing the nature
and motion were later filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma and scope of the police power, Justice Malcolm, in the early case of Rubi v. Provincial Board of
G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabarra, Yolanda P. Unica, Dayminda G. Bontuyan, Mindoro (89 Phil. 660, 708, [1919]) wrote: "The police power of the State," one court has said . . .
Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C. 'is a power coexistensive with self-protection, and is not inaptly termed 'the law of overruling
Cundangan, Frederick D. Francisco, Violeta V. Meneses, Melita J. Caedo, Clarisa SJ. Nicolas, necessity.' It may be said to be that inherent and plenary power in the state which enables it to
prohibit all things hurtful to the comfort, safety and welfare of society." Carried onward by the government." Equally important, into every contract is read provisions of existing law, and always,
current of legislature. the judiciary rarely attempts to dam the onrushing power of legislative a reservation of the police power for so long as the agreement deals with a subject impressed with
discretion, provided the purposes of the law do not go beyond the great principles that mean the public welfare.
security for the public welfare or do not arbitrarily interfere with the right of the individual."
7. ID.; ID.; EQUAL PROTECTION CLAUSE; MERELY REQUIRES THAT ALL PERSONS BE
2. ID.; ID.; ID.; EXERCISE THEREOF ENJOYS A PRESUMED VALIDITY UNLESS IT IS SHOWN TREATED ALIKE UNDER LIKE CONDITIONS. The equal protection clause is directed
THAT IT DOES NOT ENHANCE THE PUBLIC WELFARE OR WAS EXERCISED ARBITRARILY principally against undue favor and individual or class privilege. It is not intended to prohibit
OR UNREASONABLY. Thus, police power concerns government enactments which precisely legislation which is limited to the object to which it is directed or by the territory in which it is to
interfere with personal liberty or property in order to promote the general welfare or the common operate. It does not require absolute equality, but merely that all persons be treated alike under
good. As the assailed Department Order enjoys a presumed validity, it follows that the burden like conditions both as to privileges conferred and liabilities imposed. We have held, time and
rests upon petitioners to demonstrate that the said order, particularly its ARB requirement, does again, that the equal protection clause of the Constitution does not forbid classification for so long
not enhance the public welfare or was exercised arbitrarily or unreasonably. as such classification is based on real and substantial differences having a reasonable relation to
the subject of the particular legislation. If classification is germane to the purpose of the law,
3. ID.; ID.; ID.; THE PROPER REGULATION OF A PROFESSION, CALLING, BUSINESS OR concerns all members of the class, and applies equally to present and future conditions, the
TRADE IS A VALID EXERCISE THEREOF. Nevertheless, no right is absolute, and the proper classification does not violate the equal protection guarantee.
regulation of a profession, calling business or trade has always been upheld as a legitimate subject
of a valid exercise of the police power by the state particularly when their conduct affects either
the execution of legitimate governmental functions, the preservation of the State, the public health
and welfare and public morals. According to the maxim, sic utere tuo ut alienum non laedas, it
must of course be within the legitimate range of legislative action to define the mode and manner DECISION
in which every one may so use his own property so as not to pose injury to himself or others.

4. ID.; ID.; ID.; WHERE THE LIBERTY CURTAILED AFFECTS AT MOST THE RIGHT TO
PROPERTY, THE PERMISSIBLE SCOPE OF REGULATORY MEASURES IS MUCH WIDER. KAPUNAN, J p:
In any case, where the liberty curtailed affects at most the rights of property, the permissible scope
of regulatory measures is certainly much wider. To pretend that licensing or accreditation
requirements violates the due process clause is to ignore the settled practice, under the mantle of This limits of government regulation under the State's police power are once again at the vortex
the police power, of regulating entry to the practice of various trades or professions. Professionals of the instant controversy. Assailed is the government's power to control deployment of female
leaving for abroad are required to pass rigid written and practical exams before they are deemed entertainers to Japan by requiring an Artist Record Book (ARB) as a precondition to the processing
fit to practice their trade. Seamen are required to take tests determining their seamanship. Locally, by the POEA of any contract for overseas employment. By contending that the right to overseas
the Professional Regulation Commission has began to require previously licensed doctors and employment is a property right within the meaning of the Constitution, petitioners vigorously aver
other professionals to furnish documentary proof that they had either re-trained or had undertaken that deprivation thereof allegedly through the onerous requirement of an ARB violates the due
continuing education courses as a requirement for renewal of their licenses. It is not claimed that process clause and constitutes an invalid exercise of the police power.
these requirements pose an unwarranted deprivation of a property right under the due process
The factual antecedents are undisputed.
clause. So long as professionals and other workers meet reasonable regulatory standards no such
deprivation exists. Following the much-publicized death of Maricris Sioson in 1991, former President Corazon C.
Aquino ordered a total ban against the deployment of performing artists to Japan and other foreign
5. CONSTITUTIONAL LAW; STATE POLICIES; THE STATE SHALL AFFORD FULL
destinations. The ban was, however, rescinded after leaders of the overseas employment industry
PROTECTION TO LABOR; ELUCIDATED. Protection to labor does not indicate promotion of
promised to extend full support for a program aimed at removing kinks in the system of
employment alone. Under the welfare and social justice provisions of the Constitution, the
deployment. In its place, the government, through the Secretary of Labor and Employment,
promotion of full employment, while desirable, cannot take a backseat to the government's
subsequently issued Department Order No. 28 creating the Entertainment Industry Advisory
constitutional duty to provide mechanisms for the protection of our work-force, local or overseas.
Council (EIAC). which was tasked with issuing guidelines on the training, testing certification and
As this Court explained in Philippine Association of Service Exporters (PASEI) v. Drilon, in
deployment of performing artists abroad.
reference to the recurring problems faced by our overseas workers: what concerns the
Constitution more paramountly is that such an employment be above all, decent, just, and Pursuant to the EIAC's recommendations, 1 the Secretary of Labor, on January 6, 1994, issued
humane. It is bad enough that the country has to send its sons and daughters to strange lands Department Order No. 3 establishing various procedures and requirements for screening
because it cannot satisfy their employment needs at home. Under these circumstances, the performing artists under a new system of training, testing, certification and deployment of the
Government is duty-bound to insure that our toiling expatriates have adequate protection, former. Performing artists successfully hurdling the test, training and certification requirement
personally and economically, while away from home. A profession, trade or calling is a property were to be issued an Artist's Record Book (ARB), a necessary prerequisite to processing of any
right within the meaning of our constitutional guarantees. One cannot be deprived of the right to contract of employment by the POEA. Upon request of the industry, implementation of the
work and the right to make a living because these rights are property rights, the arbitrary and process, originally scheduled for April 1, 1994, was moved to October 1, 1994.
unwarranted deprivation of which normally constitutes an actionable wrong.
Thereafter, the Department of Labor, following the EIAC's recommendation, issued a series of
6. ID.; BILL OF RIGHTS; NON-IMPAIRMENT OF OBLIGATIONS OF CONTRACTS; MUST orders fine-tuning and implementing the new system. Prominent among these orders were the
YIELD TO THE STATE'S POLICE POWER. It is a futile gesture on the part of petitioners to following issuances:
invoke the non-impairment clause of the Constitution to support their argument that the
government cannot enact the assailed regulatory measures because they abridge the freedom to 1. Department Order No. 3-A, providing for additional guidelines on the
contract. In Philippine Association of Service Exporters, Inc. vs. Drilon, we held that "(t)he non- training, testing, certification and deployment of performing artists.
impairment clause of the Constitution . . . must yield to the loftier purposes targeted by the
demonstrate that the said order, particularly, its ARB requirement, does not enhance the public
welfare or was exercised arbitrarily or unreasonably.
2. Department Order No. 3-B, pertaining to the Artist Record Book (ARB)
requirement, which could be processed only after the artist could show A through review of the facts and circumstances leading to the issuance of the assailed orders
proof of academic and skills training and has passed the required tests. compels us to rule that the Artist Record Book requirement and the questioned Department Order
related to its issuance were issued by the Secretary of Labor pursuant to a valid exercise of the
3. Department Order No. 3-E, providing the minimum salary a performing police power.
artist ought to receive (not less than US$600.00 for those bound for Japan)
and the authorized deductions therefrom. In 1984, the Philippines emerged as the largest labor sending country in Asia dwarfing the labor
export of countries with mammoth populations such as India and China. According to the National
4. Department Order No. 3-F, providing for the guidelines on the issuance Statistics Office, this diaspora was augmented annually by over 450,000 documented and
and use of the ARB by returning performing artists who, unlike new artists, clandestine or illegal (undocumented) workers who left the country for various destinations abroad,
shall only undergo a Special Orientation Program (shorter than the basic lured by higher salaries, better work opportunities and sometimes better living conditions.
program) although they must pass the academic test.
Of the hundreds of thousands of workers who left the country for greener pastures in the last few
In Civil No. 95-72750, the Federation of Entertainment Talent Managers of the Philippines years, women composed slightly close to half of those deployed, constituting 47% between 1987-
(FETMOP), on January 27, 1995 filed a class suit assailing these department orders, principally 1991, exceeding this proportion (58%) by the end of 1991, 6 the year former President Aquino
contending that said orders 1) violated the constitutional right to travel; 2) abridged existing instituted the ban on deployment of performing artists to Japan and other countries as a result of
contracts for employment; and 3) deprived individual artists of their licenses without due process the gruesome death of Filipino entertainer Maricris Sioson.
of law. FETMOP, likewise, averred that the issuance of the Artist Record Book (ARB) was
discriminatory and illegal and "in gross violation of the constitutional right . . . to life liberty and It was during the same period that this Court took judicial notice not only of the trend, but also of
property." Said Federation consequently prayed for the issuance of a writ of preliminary injunction the fact that most of our women, a large number employed as domestic helpers and entertainers,
against the aforestated orders. worked under exploitative conditions "marked by physical and personal abuse." 7 Even then, we
noted that "[t]he sordid tales of maltreatment suffered by migrant Filipina workers, even rape and
On February 2, 1992, JMM Promotion and Management, Inc. and Kary International, Inc., herein various forms of torture, confirmed by testimonies of returning workers" compelled "urgent
petitioners, filed a Motion for Intervention in said civil case, which was granted by the trial court in government action." 8
an Order dated 15 February, 1995.
Pursuant to the alarming number of reports that a significant number of Filipina performing artists
However, on February 21, 1995, the trial court issued an Order denying petitioners' prayer for a ended up as prostitutes abroad (many of whom were beaten, drugged and forced into prostitution),
writ of preliminary injunction and dismissed the complaint. and following the deaths of a number of these women, the government began instituting measures
aimed at deploying only those individuals who met set standards which would qualify them as
On appeal from the trial court's Order, respondent court, in CA G.R. SP No. 36713 dismissed the legitimate performing artists. In spite of these measures, however, a number of our countrymen
same. Tracing the circumstances which led to the issuance of the ARB requirement and the have nonetheless fallen victim to unscrupulous recruiters, ending up as virtual slaves controlled
assailed Department Order, respondent court concluded that the issuances constituted a valid by foreign crime syndicates and forced into jobs other than those indicated in their employment
exercise by the state of the police power. contracts. Worse, some of our women have been forced into prostitution.
We agree. Thus, after a number of inadequate and failed accreditation schemes, the Secretary of Labor
issued on August 16, 1993, D.O. No. 28, establishing the Entertainment Industry Advisory Council
The latin maxim salus populi est suprema lex embodies the character of the entire spectrum of
(EIAC), the policy advisory body of DOLE on entertainment industry matters. 9 Acting on the
public laws aimed at promoting the general welfare of the people under the State's police power.
As an inherent attribute of sovereignty which virtually "extends to all public needs," 2 this "least recommendations of the said body, the Secretary of Labor, on January 6, 1994, issued the
assailed orders. These orders embodied EIAC's Resolution No. 1, which called for guidelines on
limitable" 3of governmental powers grants a wide panoply of instruments through which the state,
screening, testing and accrediting performing overseas Filipino artists. Significantly, as the
as parens patriae gives effect to a host of its regulatory powers.
respondent court noted, petitioners were duly represented in the EIAC, 10 which gave the
Describing the nature and scope of the police power, Justice Malcolm, in the early case of Rubi v. recommendations on which the ARB and other requirements were based.
Provincial Board of Mindoro 4 wrote:
Clearly, the welfare of Filipino performing artists, particularly the women was paramount in the
"The police power of the State," one court has said . . . 'is a power issuance of Department Order No. 3. Short of a total and absolute ban against the deployment of
coextensive with self-protection, and is not inaptly termed 'the law of performing artists to "high-risk" destinations, a measure which would only drive recruitment further
overruling necessity.' It may be said to be that inherent and plenary power underground, the new scheme at the very least rationalizes the method of screening performing
in the state which enables it to prohibit all things hurtful to the comfort, artists by requiring reasonable educational and artistic skills from them and limits deployment to
safety and welfare of society." Carried onward by the current of legislature, only those individuals adequately prepared for the unpredictable demands of employment as
the judiciary rarely attempts to dam the onrushing power of legislative artists abroad. It cannot be gainsaid that this scheme at least lessens the room for exploitation by
discretion, provided the purposes of the law do not go beyond the great unscrupulous individuals and agencies.
principles that mean security for the public welfare or do not arbitrarily
Moreover, here or abroad, selection of performing artists is usually accomplished by auditions,
interfere with the right of the individual." 5
where those deemed unfit are usually weeded out through a process which is inherently subjective
Thus, police power concerns government enactments which precisely interfere with personal and vulnerable to bias and differences in taste. The ARB requirement goes one step further,
liberty or property in order to promote the general welfare or the common good. As the assailed however, attempting to minimize the subjectivity of the process by defining minimum skills required
Department Order enjoys a presumed validity, it follows that the burden rests upon petitioners to from entertainers and performing artists. As the Solicitor General observed, this should be easily
met by experienced artists possessing merely basic skills. The tests are aimed at segregating real
artists or performers from those passing themselves off as such, eager to accept any available job Nevertheless, no right is absolute, and the proper regulation of a profession, calling, business or
and therefore exposing themselves to possible exploitation. trade has always been upheld as a legitimate subject of a valid exercise of the police power by
the state particularly when their conduct affects either the execution of legitimate governmental
As to the other provisions of Department Order No. 3 questioned by petitioners, we see nothing functions, the preservation of the State, the public health and welfare and public morals. According
wrong with the requirement for document and booking confirmation (D.O. 3-C), a minimum salary to the maxim, sic utere tuo ut alienum non laedas, it must of course be within the legitimate range
scale (D.O. 3-E), or the requirement for registration of returning performers. The requirement for of legislative action to define the mode and manner in which every one may so use his own
a venue certificate or other documents evidencing the place and nature of work allows the property so as not to pose injury to himself or others. 13
government closer monitoring of foreign employers and helps keep our entertainers away from
prostitution fronts and other worksites associated with unsavory, immoral, illegal or exploitative In any case, where the liberty curtailed affects at most the rights of property, the permissible scope
practices. Parenthetically, none of these issuances appear to us, by any stretch of the imagination, of regulatory measures is certainly much wider. 14 To pretend that licensing or accreditation
even remotely unreasonable or arbitrary. They address a felt need of according greater protection requirements violates the due process clause is to ignore the settled practice, under the mantle of
for an oft-exploited segment of our OCW's. They respond to the industry's demand for clearer and the police power, of regulating entry to the practice of various trades or professions. Professionals
more practicable rules and guidelines. Many of these provisions were fleshed out following leaving for abroad are required to pass rigid written and practical exams before they are deemed
recommendations by, and after consultations with, the affected sectors and non-government fit to practice their trade. Seamen are required to take tests determining their seamanship. Locally,
organizations. On the whole, they are aimed at enhancing the safety and security of entertainers the Professional Regulation Commission has began to require previously licensed doctors and
and artists bound for Japan and other destinations, without stifling the industry's concerns for other professionals to furnish documentary proof that they had either re-trained or had undertaken
expansion and growth. continuing education courses as a requirement for renewal of their licenses. It is not claimed that
these requirements pose an unwarranted deprivation of a property right under the due process
In any event, apart from the State's police power, the Constitution itself mandates government to clause. So long as professionals and other workers meet reasonable regulatory standards no such
extend the fullest protection to our overseas workers. The basic constitutional statement on labor, deprivation exists.
embodied in Section 18 of Article II of the Constitution provides:
Finally, it is a futile gesture on the part of petitioners to invoke the non-impairment clause of the
Constitution to support their argument that the government cannot enact the assailed regulatory
measures because they abridge the freedom to contract. In Philippine Association of Service
Sec. 18. The State affirms labor as a primary social economic force. It shall Exporters, Inc. vs. Drilon, we held that "[t]he non-impairment clause of the Constitution . . . must
protect the rights of workers and promote their welfare. yield to the loftier purposes targeted by the government." 15 Equally important, into every contract
is read provisions of existing law, and always, a reservation of the police power for so long as the
More emphatically, the social justice provision on labor of the 1987 Constitution in its first
agreement deals with a subject impressed with the public welfare.
paragraph states:
A last point. Petitioners suggest that the singling out of entertainers and performing artists under
The State shall afford full protection to labor, local and overseas, organized
the assailed department orders constitutes class legislation which violates the equal protection
and unorganized and promote full employment and equality of employment
clause of the Constitution. We do not agree.
opportunities for all.
The equal protection clause is directed principally against undue favor and individual or class
Obviously, protection to labor does not indicate promotion of employment alone. Under the welfare
privilege. It is not intended to prohibit legislation which is limited to the object to which it is directed
and social justice provisions of the Constitution, the promotion of full employment, while desirable,
or by the territory in which it is to operate. It does not require absolute equality, but merely that all
cannot take a backseat to the government's constitutional duty to provide mechanisms for the
persons be treated alike under like conditions both as to privileges conferred and liabilities
protection of our workforce, local or overseas. At this Court explained in Philippine Association of
imposed. 16 We have held, time and again, that the equal protection clause of the Constitution
Service Exporters (PASEI) v. Drilon, 11 in reference to the recurring problems faced by our
does not forbid classification for so long as such classification is based on real and substantial
overseas workers:
differences having a reasonable relation to the subject of the particular legislation. 17 If
What concerns the Constitution more paramountly is that such an classification is germane to the purpose of the law, concerns all members of the class, and applies
employment be above all, decent, just, and humane. It is bad enough that equally to present and future conditions, the classification does not violate the equal protection
the country has to send its sons and daughters to strange lands because guarantee.
it cannot satisfy their employment needs at home. Under these
In the case at bar, the challenged Department Order clearly applies to all performing artists and
circumstances, the Government is duty-bound to insure that our toiling
entertainers destined for jobs abroad. These orders, we stressed hereinbefore, further the
expatriates have adequate protection, personally and economically, while
Constitutional mandate requiring government to protect our workforce, particularly those who may
away from home.
be prone to abuse and exploitation as they are beyond the physical reach of government
We now go to petitioners' assertion that the police power cannot, nevertheless, abridge the right regulatory agencies. The tragic incidents must somehow stop, but short of absolutely curtailing
of our performing workers to return to work abroad after having earlier qualified under the old the right of these performers and entertainers to work abroad, the assailed measures enable our
process, because, having previously been accredited, their accreditation became a "property government to assume a measure of control.
right," protected by the due process clause. We find this contention untenable.
WHEREFORE, finding no reversible error in the decision sought to be reviewed, petition is hereby
A profession, trade or calling is a property right within the meaning of our constitutional DENIED.
guarantees. One cannot be deprived of the right to work and the right to make a living because
SO ORDERED.
these rights are property rights, the arbitrary and unwarranted deprivation of which normally
constitutes an actionable wrong. 12 [G.R. No. 213948. April 25, 2017.]
KNIGHTS OF RIZAL, petitioner, vs. DMCI HOMES, INC., DMCI area. Neither has it been categorically designated by the National Historical Institute as a
PROJECT DEVELOPERS, INC., CITY OF MANILA, NATIONAL heritage zone, a cultural property, a historical landmark or even a national treasure."
COMMISSION FOR CULTURE AND THE ARTS, NATIONAL MUSEUM,
and NATIONAL HISTORICAL COMMISSION OF THE PHILIPPINES, Subsequently, both the City of Manila and DMCI-PDI sought the opinion of the
respondents. National Historical Commission of the Philippines (NHCP) on the matter. In the letter 10 dated
6 November 2012 from NHCP Chairperson Dr. Maria Serena I. Diokno addressed to DMCI-
PDI and the letter 11 dated 7 November 2012 from NHCP Executive Director III Ludovico D.
Badoy addressed to then Manila Mayor Alfredo S. Lim, the NHCP maintained that the Torre
de Manila project site is outside the boundaries of the Rizal Park and well to the rear of the
DECISION Rizal Monument, and thus, cannot possibly obstruct the frontal view of the National
Monument.
On 26 November 2013, following an online petition against the Torre de Manila
project that garnered about 7,800 signatures, the City Council of Manila issued Resolution
CARPIO, J p: No. 146, reiterating its directive in Resolution No. 121 enjoining the City of Manila's building
officials to temporarily suspend DMCI-PDI's Building Permit. 12
Bury me in the ground, place a stone and a cross over it. My name, the date of my birth, and
of my death. Nothing more. If you later wish to surround my grave with a fence, you may do In a letter to Mayor Joseph Ejercito Estrada dated 18 December 2013, DMCI-PDI
so. No anniversaries. I prefer Paang Bundok. President Alfredo R. Austria sought clarification on the controversy surrounding its Zoning
Permit. He stated that since the CPDO granted its Zoning Permit, DMCI-PDI continued with
- Jose Rizal the application for the Building Permit, which was granted, and did not deem it necessary to
go through the process of appealing to the local zoning board. He then expressed DMCI-
The Case PDI's willingness to comply with the process if the City of Manila deemed it necessary. 13
Before this Court is a Petition for Injunction, with Applications for Temporary On 23 December 2013, the Manila Zoning Board of Adjustments and Appeals
Restraining Order, Writ of Preliminary Injunction, and Others 1 filed by the Knights of Rizal (MZBAA) issued Zoning Board Resolution No. 06, Series of 2013, 14 recommending the
(KOR) seeking, among others, for an order to stop the construction of respondent DMCI approval of DMCI-PDI's application for variance. The MZBAA noted that the Torre de Manila
Homes, Inc.'s condominium development project known as the Torre de Manila. In its project "exceeds the prescribed maximum Percentage of Land Occupancy (PLO) and
Resolution dated 25 November 2014, the Court resolved to treat the petition as one for exceeds the prescribed Floor Area Ratio (FAR) as stipulated in Article V, Section 17 of City
mandamus. 2 Ordinance No. 8119[.]" However, the MZBAA still recommended the approval of the variance
The Facts subject to the five conditions set under the same resolution. CAIHTE

On 1 September 2011, DMCI Project Developers, Inc. (DMCI-PDI) 3 acquired a After some clarification sought by DMCI-PDI, the MZBAA issued Zoning Board
7,716.60-square meter lot in the City of Manila, located near Taft Avenue, Ermita, beside the Resolution No. 06-A, Series of 2013, 15 on 8 January 2014, amending condition (c) in the
former Manila Jai-Alai Building and Adamson University. 4 The lot was earmarked for the earlier resolution. 16
construction of DMCI-PDI's Torre de Manila condominium project. HTcADC On 16 January 2014, the City Council of Manila issued Resolution No. 5, Series of
On 2 April 2012, DMCI-PDI secured its Barangay Clearance to start the 2014, 17 adopting Zoning Board Resolution Nos. 06 and 06-A. The City Council resolution
construction of its project. It then obtained a Zoning Permit from the City of Manila's City states that "the City Council of Manila find[s] no cogent reason to deny and/or reverse the
Planning and Development Office (CPDO) on 19 June 2012. 5 aforesaid recommendation of the [MZBAA] and hereby ratif[ies] and confirm[s] all previously
issued permits, licenses and approvals issued by the City [Council] of Manila for Torre de
Then, on 5 July 2012, the City of Manila's Office of the Building Official granted Manila[.]"
DMCI-PDI a Building Permit, allowing it to build a "Forty-Nine (49) Storey w/Basement & 2
penthouse Level Res'l./Condominium" on the property. 6 Arguments of the KOR

On 24 July 2012, the City Council of Manila issued Resolution No. 121 enjoining On 12 September 2014, the KOR, a "civic, patriotic, cultural, non-partisan, non-
the Office of the Building Official to temporarily suspend the Building Permit of DMCI-PDI, sectarian and non-profit organization" 18 created under Republic Act No. 646, 19filed a
citing among others, that "the Torre de Manila Condominium, based on their development Petition for Injunction seeking a temporary restraining order, and later a permanent
plans, upon completion, will rise up high above the back of the national monument, to clearly injunction, against the construction of DMCI-PDI's Torre de Manila condominium project. The
dwarf the statue of our hero, and with such towering heights, would certainly ruin the line of KOR argues that the subject matter of the present suit is one of "transcendental importance,
sight of the Rizal Shrine from the frontal Roxas Boulevard vantage point[.]" 7 paramount public interest, of overarching significance to society, or with far-reaching
implication" involving the desecration of the Rizal Monument.
Building Official Melvin Q. Balagot then sought the opinion of the City of Manila's
City Legal Officer on whether he is bound to comply with Resolution No. 121. 8In his letter The KOR asserts that the completed Torre de Manila structure will "[stick] out like
dated 12 September 2012, City Legal Officer Renato G. Dela Cruz stated that there is "no a sore thumb, [dwarf] all surrounding buildings within a radius of two kilometer/s" and "forever
legal justification for the temporary suspension of the Building Permit issued in favor of ruin the sightline of the Rizal Monument in Luneta Park: Torre de Manila building would loom
[DMCI-PDI]" since the construction "lies outside the Luneta Park" and is "simply too far to be at the back and overshadow the entire monument, whether up close or viewed from a
a repulsive distraction or have an objectionable effect on the artistic and historical distance." 20
significance" of the Rizal Monument. 9 He also pointed out that "there is no showing that the Further, the KOR argues that the Rizal Monument, as a National Treasure, is
[area of] subject property has been officially declared as an anthropological or archeological entitled to "full protection of the law" 21 and the national government must abate the act or
activity that endangers the nation's cultural heritage "even against the wishes of the local Second, DMCI-PDI maintains that the KOR has no standing to institute this
government hosting it." 22 aScITE proceeding because it is not a real party in interest in this case. The purposes of the KOR as
a public corporation do not include the preservation of the Rizal Monument as a cultural or
Next, the KOR contends that the project is a nuisance per se 23 because "[t]he historical heritage site. 35 The KOR has also not shown that it suffered an actual or
despoliation of the sight view of the Rizal Monument is a situation that 'annoys or offends the threatened injury as a result of the alleged illegal conduct of the City of Manila. If there is any
senses' of every Filipino who honors the memory of the National Hero Jose Rizal. It is a injury to the KOR at all, the same was caused by the private conduct of a private entity and
present, continuing, worsening and aggravating status or condition. Hence, the PROJECT is not the City of Manila. 36
a nuisance per se. It deserves to be abated summarily, even without need of judicial
proceeding." 24 Third, DMCI-PDI argues that the Torre de Manila is not a nuisance per se. DMCI-
PDI reiterates that it obtained all the necessary permits, licenses, clearances, and certificates
The KOR also claims that the Torre de Manila project violates the NHCP's for its construction. 37 It also refutes the KOR's claim that the Torre de Manila would dwarf
Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos and Other all other structures around it, considering that there are other tall buildings even closer to the
Personages, which state that historic monuments should assert a visual "dominance" over Rizal Monument itself, namely, the Eton Baypark Tower at the corner of Roxas Boulevard
its surroundings, 25 as well as the country's commitment under theInternational Charter for and T.M. Kalaw Street (29 storeys; 235 meters from the Rizal Monument) and Sunview
the Conservation and Restoration of Monuments and Sites, otherwise known as the Venice Palace at the corner of M.H. Del Pilar and T.M. Kalaw Streets (42 storeys; 250 meters from
Charter. 26 the Rizal Monument). 38
Lastly, the KOR claims that the DMCI-PDI's construction was commenced and Fourth, DMCI-PDI next argues that it did not act in bad faith when it started
continues in bad faith, and is in violation of the City of Manila's zoning ordinance.27 construction of its Torre de Manila project. Bad faith cannot be attributed to it since it was
Arguments of DMCI-PDI within the "lawful exercise of [its] rights." 39 The KOR failed to present any proof that DMCI-
PDI did not follow the proper procedure and zoning restrictions of the City of Manila. Aside
In its Comment, DMCI-PDI argues that the KOR's petition should be dismissed on from obtaining all the necessary permits from the appropriate government agencies, 40
the following grounds: DMCI-PDI also sought clarification on its right to build on its site from the Office of the City
Legal Officer of Manila, the Manila CPDO, and the NHCP. 41 Moreover, even if the KOR
I. proffered such proof, the Court would be in no position to declare DMCI-PDI's acts as illegal
THIS HONORABLE COURT HAS NO JURISDICTION OVER THIS ACTION. since the Court is not a trier of facts. 42 HEITAD

II. Finally, DMCI-PDI opposes the KOR's application for a Temporary Restraining
Order (TRO) and writ of preliminary injunction. DMCI-PDI asserts that the KOR has failed to
KOR HAS NO LEGAL RIGHT OR INTEREST TO FILE OR PROSECUTE THIS ACTION. establish "a clear and unmistakable right to enjoin the construction of Torre de Manila, much
less request its demolition." 43 DMCI-PDI further argues that it "has complied with all the
III. legal requirements for the construction of Torre de Manila x x x [and] has violated no right of
TORRE DE MANILA IS NOT A NUISANCE PER SE. KOR that must be protected. Further, KOR stands to suffer no damage because of its lack
of direct pecuniary interest in this petition. To grant the KOR's application for injunctive relief
IV. would constitute an unjust taking of property without due process of law." 44
DMCI-PDI ACTED IN GOOD FAITH IN CONSTRUCTING TORRE DE MANILA; AND Arguments of the City of Manila
V. In its Comment, the City of Manila argues that the writ of mandamus cannot issue
"considering that no property or substantive rights whatsoever in favor of [the KOR] is being
KOR IS NOT ENTITLED TO A TEMPORARY RESTRAINING ORDER AND/OR A WRIT OF
affected or x x x entitled to judicial protection[.]" 45
PRELIMINARY INJUNCTION. 28
The City of Manila also asserts that the "issuance and revocation of a Building
First, DMCI-PDI asserts that the Court has no original jurisdiction over actions for
Permit undoubtedly fall under the category of a discretionary act or duty performed by the
injunction. 29 Even assuming that the Court has concurrent jurisdiction, DMCI-PDI maintains
proper officer in light of his meticulous appraisal and evaluation of the pertinent supporting
that the petition should still have been filed with the Regional Trial Court under the doctrine
documents of the application in accordance with the rules laid out under the National Building
of hierarchy of courts and because the petition involves questions of fact. 30 DETACa
Code [and] Presidential Decree No. 1096," 46 while the remedy of mandamus is available
DMCI-PDI also contends that the KOR's petition is in actuality an opposition or only to compel the performance of a ministerial duty. 47
appeal from the exemption granted by the City of Manila's MZBAA, a matter which is also
Further, the City of Manila maintains that the construction of the Torre de Manila
not within the jurisdiction of the Court. 31 DMCI-PDI claims that the proper forum should be
did not violate any existing law, since the "edifice [is] well behind (some 789 meters away)
the MZBAA, and should the KOR fail there, it should appeal the same to the Housing and
the line of sight of the Rizal Monument." 48 It adds that the City of Manila's "prevailing Land
Land Use Regulatory Board (HLURB). 32
Use and Zoning Ordinance [Ordinance No. 8119] x x x allows an adjustment in Floor Area
DMCI-PDI further argues that since the Rizal Monument has been declared a Ratios thru the [MZBAA] subject to further final approval of the City Council." 49 The City
National Treasure, the power to issue a cease and desist order is lodged with the Council adopted the MZBAA's favorable recommendation in its Resolution No. 5, ratifying all
"appropriate cultural agency" under Section 25 of Republic Act No. 10066 or the National the licenses and permits issued to DMCI-PDI for its Torre de Manila project. aDSIHc
Cultural Heritage Act of 2009. 33 Moreover, DMCI-PDI asserts that the KOR availed of the
In its Position Paper dated 15 July 2015, the City of Manila admitted that the Zoning
wrong remedy since an action for injunction is not the proper remedy for abatement of a
Permit issued to DMCI-PDI was "in breach of certain provisions of City Ordinance No. 8119."
nuisance. 34
50 It maintained, however, that the deficiency is "procedural in nature and pertains mostly to
the failure of [DMCI-PDI] to comply with the stipulations that allow an excess in the [FAR]
provisions." 51 Further, the City of Manila argued that the MZBAA, when it recommended and Development Office (CPDO) and shall be required to prepare a
the allowance of the project's variance, imposed certain conditions upon the Torre de Manila heritage impact statement that will demonstrate to the satisfaction of CPDO
project in order to mitigate the possible adverse effects of an excess FAR. 52 that the proposal will not adversely impact the heritage significance of the
property and shall submit plans for review by the CPDO in coordination
The Issue with the National Historical Institute (NHI).
The issues raised by the parties can be summed up into one main point: Can the 4. Any proposed alteration and/or re-use of designated heritage properties
Court issue a writ of mandamus against the officials of the City of Manila to stop the shall be evaluated based on criteria established by the heritage
construction of DMCI-PDI's Torre de Manila project? significance of the particular property or site.
The Court's Ruling 5. Where an owner of a heritage property applies for approval to demolish
The petition for mandamus lacks merit and must be dismissed. a designated heritage property or properties, the owner shall be required
to provide evidence to satisfaction that demonstrates that rehabilitation and
There is no law prohibiting the construction of the Torre de Manila. re-use of the property is not viable.
In Manila Electric Company v. Public Service Commission, 53 the Court held that 6. Any designated heritage property which is to be demolished or
"what is not expressly or impliedly prohibited by law may be done, except when the significantly altered shall be thoroughly documented for archival purposes
act is contrary to morals, customs and public order." This principle is fundamental in a with a history, photographic records, and measured drawings, in
democratic society, to protect the weak against the strong, the minority against the majority, accordance with accepted heritage recording guidelines, prior to
and the individual citizen against the government. In essence, this principle, which is the demolition or alteration.
foundation of a civilized society under the rule of law, prescribes that the freedom to act can
be curtailed only through law. Without this principle, the rights, freedoms, and civil liberties 7. Residential and commercial infill in heritage areas will be sensitive to the
of citizens can be arbitrarily and whimsically trampled upon by the shifting passions of those existing scale and pattern of those areas, which maintains the existing
who can shout the loudest, or those who can gather the biggest crowd or the most number landscape and streetscape qualities of those areas, and which does not
of Internet trolls. In other instances, 54 the Court has allowed or upheld actions that were not result in the loss of any heritage resources. ETHIDa
expressly prohibited by statutes when it determined that these acts were not contrary to 8. Development plans shall ensure that parking facilities (surface lots,
morals, customs, and public order, or that upholding the same would lead to a more equitable residential garages, stand-alone parking garages and parking components
solution to the controversy. However, it is the law itself Articles 1306 55 and 1409 (1) 56 as parts of larger developments) are compatibly integrated into heritage
of the Civil Code which prescribes that acts not contrary to morals, good customs, public areas, and/or are compatible with adjacent heritage resources.
order, or public policy are allowed if also not contrary to law. ATICcS
9. Local utility companies (hydro, gas, telephone, cable) shall be required
In this case, there is no allegation or proof that the Torre de Manila project is to place metering equipment, transformer boxes, power lines, conduit,
"contrary to morals, customs, and public order" or that it brings harm, danger, or hazard to equipment boxes, piping, wireless telecommunication towers and other
the community. On the contrary, the City of Manila has determined that DMCI-PDI complied utility equipment and devices in locations which do not detract from the
with the standards set under the pertinent laws and local ordinances to construct its Torre de visual character of heritage resources, and which do not have a negative
Manila project. impact on its architectural integrity.
There is one fact that is crystal clear in this case. There is no law prohibiting the 10. Design review approval shall be secured from the CPDO for any
construction of the Torre de Manila due to its effect on the background "view, vista, sightline, alteration of the heritage property to ensure that design guidelines and
or setting" of the Rizal Monument. standards are met and shall promote preservation and conservation of the
Zoning, as well as land use, in the City of Manila is governed by Ordinance No. heritage property. (Emphasis supplied)
8119. The ordinance provides for standards and guidelines to regulate development projects It is clear that the standards laid down in Section 47 of Ordinance No. 8119 only
of historic sites and facilities within the City of Manila. serve as guides, as it expressly states that "the following shall guide the development of
Specifically, Section 47 reads: historic sites and facilities." A guide simply sets a direction or gives an instruction to be
followed by property owners and developers in order to conserve and enhance a property's
SEC. 47. Historical Preservation and Conservation Standards. Historic heritage values.
sites and facilities shall be conserved and preserved. These shall, to the
extent possible, be made accessible for the educaional and cultural On the other hand, Section 48 states:
enrichment of the general public. SEC. 48. Site Performance Standards. The City considers it in the public
The following shall guide the development of historic sites and interest that all projects are designed and developed in a safe, efficient and
facilities: aesthetically pleasing manner. Site development shall consider the
environmental character and limitations of the site and its adjacent
1. Sites with historic buildings or places shall be developed to conserve properties. All project elements shall be in complete harmony according to
and enhance their heritage values. good design principles and the subsequent development must be visually
pleasing as well as efficiently functioning especially in relation to the
2. Historic sites and facilities shall be adaptively re-used. adjacent properties and bordering streets.
3. Any person who proposes to add, to alter, or partially demolish a The design, construction, operation and maintenance of every facility shall
designated heritage property will require the approval of the City Planning be in harmony with the existing and intended character of its neighborhood.
It shall not change the essential character of the said area but will be a Section 15, Article XIV of the Constitution, which deals with the subject of arts and
substantial improvement to the value of the properties in the neighborhood culture, provides that "[t]he State shall conserve, promote and popularize the nation's
in particular and the community in general. historical and cultural heritage and resources x x x." Since this provision is not self-executory,
Congress passed laws dealing with the preservation and conservation of our cultural
Furthermore, designs should consider the following: heritage. cSEDTC
1. Sites, buildings and facilities shall be designed and developed with One such law is Republic Act No. 10066, 59 or the National Cultural Heritage Act
regard to safety, efficiency and high standards of design. The natural of 2009, which empowers the National Commission for Culture and the Arts and other cultural
environmental character of the site and its adjacent properties shall be agencies to issue a cease and desist order "when the physical integrity of the national
considered in the site development of each building and facility. cultural treasures or important cultural properties [is] found to be in danger of destruction
2. The height and bulk of buildings and structures shall be so designed that or significant alteration from its original state." 60 This law declares that the State should
it does not impair the entry of light and ventilation, cause the loss of privacy protect the "physical integrity" of the heritage property or building if there is "danger of
and/or create nuisances, hazards or inconveniences to adjacent destruction or significant alteration from its original state." Physical integrity refers to the
developments. TIADCc structure itself how strong and sound the structure is. The same law does not mention
that another project, building, or property, not itself a heritage property or building, may be
3. Abutments to adjacent properties shall not be allowed without the the subject of a cease and desist order when it adversely affects the background view, vista,
neighbor's prior written consent which shall be required by the City or sightline of a heritage property or building. Thus, Republic Act No. 10066 cannot apply to
Planning and Development Office (CPDO) prior to the granting of a Zoning the Torre de Manila condominium project.
Permit (Locational Clearance).
Mandamus does not lie against the City of Manila.
4. The capacity of parking areas/lots shall be per the minimum
requirements of the National Building Code. These shall be located, The Constitution states that "[n]o person shall be deprived of life, liberty or
developed and landscaped in order to enhance the aesthetic quality of the property without due process of law x x x." 61 It is a fundamental principle that no property
facility. In no case, shall parking areas/lots encroach into street rights-of- shall be taken away from an individual without due process, whether substantive or
way and shall follow the Traffic Code as set by the City. procedural. The dispossession of property, or in this case the stoppage of the construction
of a building in one's own property, would violate substantive due process.
5. Developments that attract a significant volume of public modes of
transportation, such as tricycles, jeepneys, buses, etc., shall provide on- The Rules on Civil Procedure are clear that mandamus only issues when there is
site parking for the same. These shall also provide vehicular loading and a clear legal duty imposed upon the office or the officer sought to be compelled to perform
unloading bays so as street traffic flow will not be impeded. an act, and when the party seeking mandamus has a clear legal right to the performance of
such act.
6. Buffers, silencers, mufflers, enclosures and other noise-absorbing
materials shall be provided to all noise and vibration-producing machinery. In the present case, nowhere is it found in Ordinance No. 8119 or in any law,
Noise levels shall be maintained according to levels specified in DENR ordinance, or rule for that matter, that the construction of a building outside the Rizal Park
DAO No. 30 Abatement of Noise and Other Forms of Nuisance as is prohibited if the building is within the background sightline or view of the Rizal Monument.
Defined by Law. Thus, there is no legal duty on the part of the City of Manila"to consider," in the words of
the Dissenting Opinion, "the standards set under Ordinance No. 8119" in relation to the
7. Glare and heat from any operation or activity shall not be radiated, seen applications of DMCI-PDI for the Torre de Manila since under the ordinance these standards
or felt from any point beyond the limits of the property. can never be applied outside the boundaries of Rizal Park. While the Rizal Park has
been declared a National Historical Site, the area where Torre de Manila is being built is a
8. No large commercial signage and/or pylon, which will be privately-owned property that is "not part of the Rizal Park that has been declared as a
detrimental to the skyline, shall be allowed. National Heritage Site in 1995," and the Torre de Manila area is in fact "well-beyond" the
9. Design guidelines, deeds of restriction, property management plans and Rizal Park, according to NHCP Chairperson Dr. Maria Serena I. Diokno. 62 Neither has the
other regulatory tools that will ensure high quality developments shall be area of the Torre de Manila been designated as a "heritage zone, a cultural property, a
required from developers of commercial subdivisions and condominiums. historical landmark or even a national treasure." 63
These shall be submitted to the City Planning and Development Office Also, to declare that the City of Manila failed to consider the standards under
(CPDO) for review and approval. (Emphasis supplied) Ordinance No. 8119 would involve making a finding of fact. A finding of fact requires notice,
Section 47 of Ordinance No. 8119 specifically regulates the "development of hearing, and the submission of evidence to ascertain compliance with the law or regulation.
historic sites and facilities." Section 48 regulates "large commercial signage and/or In such a case, it is the Regional Trial Court which has the jurisdiction to hear the case,
pylon." There is nothing in Sections 47 and 48 of Ordinance No. 8119 that disallows the receive evidence, make a proper finding of fact, and determine whether the Torre de Manila
construction of a building outside the boundaries of a historic site or facility, where such project properly complied with the standards set by the ordinance. In Meralco v. Public
building may affect the background of a historic site. In this case, the Torre de Manila stands Service Commission, 64 we held that it is the cardinal right of a party in trials and
870 meters outside and to the rear of the Rizal Monument and "cannot possibly obstruct the administrative proceedings to be heard, which includes the right of the party interested or
front view of the [Rizal] Monument." 57 Likewise, the Torre de Manila is not in an area that affected to present his own case and submit evidence in support thereof and to have such
has been declared as an "anthropological or archeological area" or in an area designated as evidence presented considered by the proper court or tribunal. AIDSTE
a heritage zone, cultural property, historical landmark, or a national treasure by the NHCP. To compel the City of Manila to consider the standards under Ordinance No. 8119
58 to the Torre de Manila project will be an empty exercise since these standards cannot apply
outside of the Rizal Park and the Torre de Manila is outside the Rizal Park. Mandamus
will lie only if the officials of the City of Manila have a ministerial duty to consider these
standards to buildings outside of the Rizal Park. There can be no such ministerial duty kind of a standard has no parameters and can include a sightline or a construction as far as
because these standards are not applicable to buildings outside of the Rizal Park. the human eyes can see when standing in front of the Rizal Monument. Obviously, this Court
cannot apply such a subjective and non-uniform standard that adversely affects property
The KOR also invokes this Court's exercise of its extraordinary certiorari power of rights several kilometers away from a historical sight or facility.
review under Section 1, Article VIII 65 of the Constitution. However, this Court can only
exercise its extraordinary certiorari power if the City of Manila, in issuing the required permits The Dissenting Opinion claims that "the City, by reason of a mistaken or erroneous
and licenses, gravely abused its discretion amounting to lack or excess of jurisdiction. construction of its own Ordinance, had failed to consider its duties under [Ordinance No.
Tellingly, neither the majority nor minority opinion in this case has found that the City of 8119] when it issued permits in DMCI-PDI's favor." However, MZBAA Zoning Board
Manila committed grave abuse of discretion in issuing the permits and licenses to DMCI-PDI. Resolution Nos. 06 and 06-A 67 easily dispel this claim. According to the resolutions, the City
Thus, there is no justification at all for this Court to exercise its extraordinary certiorari power. of Manila, through the MZBAA, acted on DMCI-PDI's application for variance under the
powers and standards set forth in Ordinance No. 8119. AaCTcI
Moreover, the exercise of this Court's extraordinary certiorari power is limited to
actual cases and controversies that necessarily involve a violation of theConstitution or the Without further proof that the MZBAA acted whimsically, capriciously, or arbitrarily
determination of the constitutionality or validity of a governmental act or issuance. Specific in issuing said resolution, the Court should respect MZBAA's exercise of discretion. The
violation of a statute that does not raise the issue of constitutionality or validity of the statute Court cannot "substitute its judgment for that of said officials who are in a better position to
cannot, as a rule, be the subject of the Court's direct exercise of its expanded certiorari power. consider and weigh the same in the light of the authority specifically vested in them by law."
Thus, the KOR's recourse lies with other judicial remedies or proceedings allowed under the 68 Since the Court has "no supervisory power over the proceedings and actions of the
Rules of Court. administrative departments of the government," it "should not generally interfere with purely
administrative and discretionary functions." 69 The power of the Court in mandamus petitions
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved does not extend "to direct the exercise of judgment or discretion in a particular way or
Medical Centers Association, Inc., 66 we held that in cases where the question of the retraction or reversal of an action already taken in the exercise of either." 70
constitutionality of a governmental action is raised, the judicial power that the courts exercise
is likewise identified as the power of judicial review the power to review the constitutionality Still, the Dissenting Opinion insists on directing the re-evaluation by the City of
of the actions of other branches of government. As a rule, as required by the hierarchy of Manila, through the CPDO, of the permits previously issued in favor of the Torre de Manila
courts principle, these cases are filed with the lowest court with jurisdiction over the subject project to determine compliance with the standards under Ordinance No. 8119. It also
matter. The judicial review that the courts undertake requires: SDAaTC declares that the circumstances in this case warrant the pro hacvice conversion of the
proceedings in the issuance of the permits into a "contested case" necessitating notice and
1) there be an actual case or controversy calling for the exercise of judicial hearing with all the parties involved.
power;
Pro hac vice means a specific decision does not constitute a precedent because
2) the person challenging the act must have "standing" to challenge; he the decision is for the specific case only, not to be followed in other cases. Apro hac vice
must have a personal and substantial interest in the case such decision violates statutory law Article 8 of the Civil Code which states that "judicial
that he has sustained, or will sustain, direct injury as a result of decisions applying or interpreting the laws or the Constitutionshall form part of the legal
its enforcement; system of the Philippines." The decision of the Court in this case cannot be pro hac vice
3) the question of constitutionality must be raised at the earliest possible because by mandate of the law every decision of the Court forms part of the legal system
opportunity; and of the Philippines. If another case comes up with the same facts as the present case, that
case must be decided in the same way as this case to comply with the constitutional mandate
4) the issue of constitutionality must be the very lis mota of the case. of equal protection of the law. Thus, a pro hac vice decision also violates the equal protection
clause of the Constitution.
The lower court's decision under the constitutional scheme reaches the Supreme
Court through the appeal process, through a petition for review on certiorariunder Rule 45 of It is the policy of the courts not to interfere with the discretionary executive acts of
the Rules of Court. the executive branch unless there is a clear showing of grave abuse of discretion amounting
to lack or excess of jurisdiction. Mandamus does not lie against the legislative and executive
In the present case, the KOR elevated this case immediately to this Court in an branches or their members acting in the exercise of their official discretionary functions. This
original petition for injunction which we later on treated as one for mandamusunder Rule 65. emanates from the respect accorded by the judiciary to said branches as co-equal entities
There is, however, no clear legal duty on the City of Manila to consider the provisions of under the principle of separation of powers.
Ordinance No. 8119 for applications for permits to buildoutside the protected areas of the
Rizal Park. Even if there were such legal duty, the determination of whether the City of Manila In De Castro v. Salas, 71 we held that no rule of law is better established than the
failed to abide by this legal duty would involve factual matters which have not been admitted one that provides that mandamus will not issue to control the discretion of an officer or a
or established in this case. Establishing factual matters is not within the realm of this Court. court when honestly exercised and when such power and authority is not abused. acEHCD
Findings of fact are the province of the trial courts.
In exceptional cases, the Court has granted a prayer for mandamus to compel
There is no standard in Ordinance No. 8119 for defining or determining the action in matters involving judgment and discretion, only "to act, but not to act one way or the
background sightline that is supposed to be protected or that is part of the "physical integrity" other," 72 and only in cases where there has been a clear showing of grave abuse of
of the Rizal Monument. How far should a building like the Torre de Manila be from the Rizal discretion, manifest injustice, or palpable excess of authority. 73
Monument one, two, three, four, or five kilometers? Even the Solicitor General, during the
Oral Arguments, conceded that the ordinance does not prescribe how sightline is determined, In this case, there can be no determination by this Court that the City of Manila
neither is there any way to measure by metes and bounds whether a construction that is not had been negligent or remiss in its duty under Ordinance No. 8119 considering that this
part of the historic monument itself or is outside the protected area can be said to determination will involve questions of fact. DMCI-PDI had been issued the proper permits
violate the Rizal Monument's physical integrity, except only to say "when you stand in front and had secured all approvals and licenses months before the actual construction began.
of the Rizal Monument, there can be no doubt that your view is marred and impaired." This Even the KOR could not point to any law that respondent City of Manila had violated and
could only point to declarations of policies by the NHCP and the Venice Charter which do not Yes, Your Honor.
constitute clear legal bases for the issuance of a writ of mandamus.
JUSTICE CARPIO:
The Venice Charter is merely a codification of guiding principles for the
preservation and restoration of ancient monuments, sites, and buildings. It brings together The [Floor Area Ratio (FAR)] is uniform for the entire City of Manila, the
principles in the field of historical conservation and restoration that have been developed, FAR 4, correct?
agreed upon, and and laid down by experts over the years. Each country, however, remains ATTY. FLAMINIANO:
"responsible for applying the plan within the framework of its own culture and traditions." 74
I believe so, Your Honor, it's FAR 4.
The Venice Charter is not a treaty and therefore does not become enforceable as
law. The Philippines is not legally bound to follow its directive, as in fact, these are not JUSTICE CARPIO:
directives but mere guidelines a set of the best practices and techniques that have been
proven over the years to be the most effective in preserving and restoring historical So it's FAR 4 for all residential condominium complex or industrial
monuments, sites and buildings. projects.

The City of Manila concedes that DMCI-PDI's Zoning Permit was granted without ATTY. FLAMINIANO:
going through the process under Ordinance No. 8119. However, the same was properly There might be, the FAR might be different when it comes to
rectified when, faced with mounting opposition, DMCI-PDI itself sought clarification from the condominiums in commercial areas, Your Honor.
City of Manila and immediately began complying with the procedure for applying for a
variance. The MZBAA did subsequently recommend the approval of the variance and the JUSTICE CARPIO:
City Council of Manila approved the same, ratifying the licenses and permits already given
to DMCI-PDI. Such ratification was well within the right of the City Council of Manila. The City Yes, I'm talking of stand-alone. . .
Council of Manila could have denied the application had it seen any reason to do so. Again, ATTY. FLAMINIANO:
the ratification is a function of the City Council of Manila, an exercise of its discretion and well
within the authority granted it by law and the City's own Ordinance No. 8119. Yes, Your Honor.

The main purpose of zoning is the protection of public safety, health, convenience, JUSTICE CARPIO:
and welfare. There is no indication that the Torre de Manila project brings any harm, danger,
. . . residential condominiums. . .
or hazard to the people in the surrounding areas except that the building allegedly poses an
unsightly view on the taking of photos or the visual appreciation of the Rizal Monument by ATTY. FLAMINIANO:
locals and tourists. In fact, the Court must take the approval of the MZBAA, and its
subsequent ratification by the City Council of Manila, as the duly authorized exercise of Uniform at FAR 4, Your Honor.
discretion by the city officials. Great care must be taken that the Court does not unduly tread
JUSTICE CARPIO:
upon the local government's performance of its duties. It is not for this Court to dictate upon
the other branches of the government how their discretion must be exercised so long as And the percentage of land occupancy is always 60 percent.
these branches do not commit grave abuse of discretion amounting to lack or excess of
jurisdiction. ATTY. FLAMINIANO:

Likewise, any violation of Ordinance No. 8119 must be determined in the proper 60 percent, correct, Your Honor.
case and before the proper forum. It is not within the power of this Court in this case to make
JUSTICE CARPIO:
such determination. Without such determination, this Court cannot simply declare that the
City of Manila had failed to consider its duties under Ordinance No. 8119 when it issued the Okay. . .how many square meters is this Torre de Manila?
permits in DMCI-PDI's favor without making a finding of fact how the City of Manila failed "to
consider" its duties with respect to areas outside the boundaries of the Rizal Park. In the first xxx xxx xxx
place, this Court has no jurisdiction to make findings of fact in an original action like this ATTY. FLAMINIANO:
before this Court. Moreover, the City of Manila could not legally apply standards to sites
outside the area covered by the ordinance that prescribed the standards. With this, taken in The land area, Your Honor, it's almost 5,000. . .5,556.
light of the lack of finding that there was grave abuse of discretion on the part of the City of
Manila, there is no basis to issue the writ of mandamus against the City of Manila. JUSTICE CARPIO: SDHTEC

During the Oral Arguments, it was established that the granting of a variance is So, it's almost half a hectare.
neither uncommon nor irregular. On the contrary, current practice has made granting of a ATTY. FLAMINIANO:
variance the rule rather than the exception: EcTCAD
Yes, Your Honor.
JUSTICE CARPIO:
JUSTICE CARPIO:
Let's go to Ordinance 8119. For residential condominium that stand
alone, in other words not part of a commercial complex or an And at FAR 4, it can only build up to 18 storeys, I mean at FAR 4, is that
industrial complex . . . correct?
ATTY. FLAMINIANO: ATTY. FLAMINIANO:
If the 60 percent of the lot. . . FAR 4, it appears to be that way, Your Honor.
JUSTICE CARPIO: xxx xxx xxx
Yes, but that is a rule. JUSTICE CARPIO:
ATTY. FLAMINIANO: Every developer will have to get a variance because it doesn't make
sense to follow FAR 4 because the land is so expensive and
That is a rule, that's the rule. Your Honor. if you can build only two storeys on a 1,000-square meter
JUSTICE CARPIO: lot, you will surely lose money, correct?

60 percent of. . . ATTY. FLAMINIANO:

ATTY. FLAMINIANO: Exactly, Your Honor. 75 (Emphasis supplied)

Of the land area. Thus, the MZBAA's grant of the variance cannot be used as a basis to grant
the mandamus petition absent any clear finding that said act amounted to "grave
JUSTICE CARPIO: abuse of discretion, manifest injustice, or palpable excess of authority."
. . .buildable, the rest not buildable. The KOR is Estopped from Questioning the
Torre de Manila Construction.
ATTY. FLAMINIANO:
The KOR is now estopped from questioning the construction of the Torre de Manila
Yes, Your Honor. project. The KOR itself came up with the idea to build a structure right behind the Rizal
JUSTICE CARPIO: Monument that would dwarf the Rizal Monument. AScHCD

Okay, so if you look around here in the City of Manila anywhere you go, In the mid-1950s, the Jose Rizal National Centennial Commission (JRNCC)
you look at stand alone residential condominium buildings. . . formulated a plan to build an Educational Center within the Rizal Park. In July 1955, the KOR
proposed the inclusion of a national theater on the site of the Educational Center. The JRNCC
ATTY. FLAMINIANO: adopted the proposal. The following year, a law Republic Act No. 1427 76 authorized
the establishment of the Jose Rizal National Cultural Shrine consisting of a national theater,
There's a lot of them, Your Honor. HSAcaE a national museum, and a national library on a single site. 77
JUSTICE CARPIO: To be built on the open space right behind the 12.7 meter high Rizal Monument
It's always not FAR 4, it's more than FAR 4. were: the KOR's proposed national theater, standing 29.25 meters high and 286 meters in
distance from the Rizal Monument; the national library, standing 25.6 meters high and 180
ATTY. FLAMINIANO: meters in distance from the Rizal Monument, with its rear along San Luis Street (now T.M.
Kalaw Street); and facing it, the national museum, at 19.5 meters high and 190 meters in
Yes, Your Honor.
distance from the Rizal Monument, with its back along P. Burgos Street. 78
JUSTICE CARPIO:
However, several sectors voiced their objections to the construction for various
And the buildable area is to the edge of the property. . .it's not 60 percent, reasons. Among them, the need to preserve the open space of the park, the high cost of
correct? construction, the desecration of the park's hallowed grounds, and the fact that the proposed
cultural center including the 29.25 meter high national theater proposed by the KOR
ATTY. FLAMINIANO: would dwarf the 12.7 meter high Rizal Monument. 79 The JRNCC revised the plan and
only the National Library which still stands today was built. 80
Yes, Your Honor.
According to the NHCP, the KOR even proposed to build a Rizal Center on the
JUSTICE CARPIO:
park as recently as 2013. 81 The proposal was disapproved by the NHCP and the
So, if you look at all the . . . residential buildings in the last ten years, Department of Tourism.
they [have] all variances. They did not follow the original
Surely, as noble as the KOR's intentions were, its proposed center would have
FAR 4 or the 60 percent (of land occupancy). Every
dwarfed the Rizal Monument with its size and proximity.
residential building that stand alone was a variance.
In contrast, the Torre de Manila is located well outside the Rizal Park, and to the
ATTY. FLAMINIANO:
rear of the Rizal Monument approximately 870 meters from the Rizal Monument and 30
That's correct, Your Honor. meters from the edge of Rizal Park. 82

JUSTICE CARPIO: It is a basic principle that "one who seeks equity and justice must come to court
with clean hands." 83 In Jenosa v. Delariarte, 84 the Court reiterated that he who seeks
So the rule really in the City of Manila is variance, and the exception equity must do equity, and he who comes into equity must come with clean hands. This
which is never followed is FAR 4. "signifies that a litigant may be denied relief by a court of equity on the ground that his conduct
ATTY. FLAMINIANO: has been inequitable, unfair and dishonest, or fraudulent, or deceitful as to the controversy
in issue." 85 Thus, the KOR, having earlier proposed a national theater a mere 286 meters settled after due proceedings brought before the proper Regional Trial Court. The KOR
in distance from the back of the Rizal Monument that would have dwarfed the Rizal cannot circumvent the process in the guise of protecting national culture and heritage.
Monument, comes to this Court with unclean hands. It is now precluded from "seeking any
equitable refuge" 86 from the Court. The KOR's petition should be dismissed on this ground The TRO must be lifted.
alone. HESIcT Injunctive reliefs are meant to preserve substantive rights and prevent further injury
Torre de Manila is Not a Nuisance Per Se. 102 until final adjudication on the merits of the case. In the present case, since the legal
rights of the KOR are not well-defined, clear, and certain, the petition for mandamus must be
In its petition, the KOR claims that the Torre de Manila is a nuisance per se that dismissed and the TRO lifted.
deserves to be summarily abated even without judicial proceedings. 87However, during the
Oral Arguments, counsel for the KOR argued that the KOR now believes that the Torre de The general rule is that courts will not disturb the findings of administrative
Manila is a nuisance per accidens and not a nuisanceper se. 88 agencies when they are supported by substantial evidence. In this case, DMCI-PDI already
acquired vested rights in the various permits, licenses, or even variances it had applied for
Article 694 of the Civil Code defines a nuisance as any act, omission, in order to build a 49-storey building which is, and had been, allowed by the City of Manila's
establishment, business, condition of property, or anything else which: (1) injures or zoning ordinance.
endangers the health or safety of others; (2) annoys or offends the senses; (3) shocks, defies
or disregards decency or morality; (4) obstructs or interferes with the free passage of any As we have time and again held, courts generally hesitate to review discretionary
public highway or street, or any body of water; or (5) hinders or impairs the use of property. decisions or actions of administrative agencies in the absence of proof that such decisions
or actions were arrived at with grave abuse of discretion amounting to lack or excess of
The Court recognizes two kinds of nuisances. The first, nuisance per se, is one jurisdiction.
"recognized as a nuisance under any and all circumstances, because it constitutes a direct
menace to public health or safety, and, for that reason, may be abated summarily under the In JRS Business Corp. v. Montesa, 103 we held that mandamus is the proper
undefined law of necessity." 89 The second, nuisanceper accidens, is that which "depends remedy if it could be shown that there was neglect on the part of a tribunal in the performance
upon certain conditions and circumstances, and its existence being a question of fact, it of an act which the law specifically enjoins as a duty, or there was an unlawful exclusion of
cannot be abated without due hearing thereon in a tribunal authorized to decide whether a party from the use and enjoyment of a right to which he is clearly entitled. Only specific
such a thing in law constitutes a nuisance." 90 legal rights may be enforced by mandamus if they are clear and certain. If the legal rights of
the petitioner are not well-defined, definite, clear, and certain, 104 the petition must be
It can easily be gleaned that the Torre de Manila is not a nuisance per se. The dismissed. Stated otherwise, the writ never issues in doubtful cases. It neither confers
Torre de Manila project cannot be considered as a "direct menace to public health or safety." powers nor imposes duties. It is simply a command to exercise a power already possessed
Not only is a condominium project commonplace in the City of Manila, DMCI-PDI has, and to perform a duty already imposed. 105
according to the proper government agencies, complied with health and safety standards set
by law. DMCI-PDI has been granted the following permits and clearances prior to starting the In sum, bearing in mind the Court does not intervene in discretionary acts of the
project: (1) Height Clearance Permit from the Civil Aviation Authority of the Philippines; 91 executive department in the absence of grave abuse of discretion, 106 and considering that
(2) Development Permit from the HLURB; 92 (3) Zoning Certification from the HLURB; 93 (4) mandamus may only be issued to enforce a clear and certain legal right, 107 the present
Certificate of Environmental Compliance Commitment from the Environment Management special civil action for mandamus must be dismissed and the TRO issued earlier must be
Bureau of the Department of Environment and Natural Resources; 94 (5) Barangay lifted. caITAC
Clearance; 95 (6) Zoning Permit; 96 (7) Building Permit; 97 (8) and Electrical and Mechanical A FINAL WORD
Permit. 98
It had been Rizal's wish to die facing the rising sun. In his Mi Ultimo Adios, the
Later, DMCI-PDI also obtained the right to build under a variance recommended poem he left for his family the night before he was executed, Rizal wrote:
by the MZBAA and granted by the City Council of Manila. Thus, there can be no doubt that
the Torre de Manila project is not a nuisance per se. Yo muero cuando veo que el cielo se colora
Y al fin anuncia el da tras lbrego capuz 108
On the other hand, the KOR now claims that the Torre de Manila is a nuisance per
accidens. AcICHD [Ako'y mamamatay, ngayong namamalas
na sa Silanganan ay namamanaag
By definition, a nuisance per accidens is determined based on its surrounding yaong maligayang araw na sisikat
conditions and circumstances. These conditions and circumstances must be well sa likod ng luksang nagtabing na ulap.] 109
established, not merely alleged. The Court cannot simply accept these conditions and
circumstances as established facts as the KOR would have us do in this case. 99The KOR [I die just when I see the dawn break,
itself concedes that the question of whether the Torre de Manila is a nuisance per accidens Through the gloom of night, to herald the day] 110
is a question of fact. 100
Yet at the point of his execution, he was made to stand facing West towards Manila
The authority to decide when a nuisance exists is an authority to find facts, to Bay, with his back to the firing squad, like the traitor the colonial government wished to portray
estimate their force, and to apply rules of law to the case thus made. 101 This Court is no him. He asked to face his executioners, facing the East where the sun would be rising since
such authority. It is not a trier of facts. It cannot simply take the allegations in the petition and it was early morning, but the Spanish captain did not allow it. As he was shot and a single
accept these as facts, more so in this case where these allegations are contested by the bullet struck his frail body, Rizal forced himself, with his last remaining strength, to turn
respondents. around to face the East and thus he fell on his back with his face to the sky and the rising
sun. Then, the Spanish captain approached Rizal and finished him off with one pistol shot to
The task to receive and evaluate evidence is lodged with the trial courts. The his head.
question, then, of whether the Torre de Manila project is a nuisance per accidensmust be
Before his death, Rizal wrote a letter to his family. He asked for a simple tomb,
marked with a cross and a stone with only his name and the date of his birth and death; no
anniversary celebrations; and interment at Paang Bundok (now, the Manila North Cemetery).
Rizal never wanted his grave to be a burden to future generations.
The letter never made it to his family and his wishes were not carried out. The letter
was discovered many years later, in 1953. By then, his remains had been entombed at the
Rizal Monument, countless anniversaries had been celebrated, with memorials and
monuments built throughout the world.
Rizal's wish was unmistakable: to be buried without pomp or pageantry, to the
point of reaching oblivion or obscurity in the future. 111 For Rizal's life was never about fame
or vainglory, but for the country he loved dearly and for which he gave up his life.
The Rizal Monument is expressly against Rizal's own wishes. That Rizal's statue
now stands facing West towards Manila Bay, with Rizal's back to the East, adds salt to the
wound. If we continue the present orientation of Rizal's statue, with Rizal facing West, we
would be like the Spanish captain who refused Rizal's request to die facing the rising sun in
the East. On the other hand, if Rizal's statue is made to face East, as Rizal had desired when
he was about to be shot, the background the blue sky above Manila Bay would forever
be clear of obstruction, and we would be faithful to Rizal's dying wish. TAIaHE
WHEREFORE, the petition for mandamus is DISMISSED for lack of merit. The
Temporary Restraining Order issued by the Court on 16 June 2015 is LIFTEDeffective
immediately.
SO ORDERED.