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G.R. No.

110120 March 16, 1994

LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,


vs.
COURT OF APPEALS, HON. MANUEL JN. SERAPIO, Presiding Judge RTC,
Branch 127, Caloocan City, HON. MACARIO A. ASISTIO, JR., City Mayor of
Caloocan and/or THE CITY GOVERNMENT OF CALOOCAN, respondents.

Alberto N. Hidalgo and Ma. Teresa T. Oledan for petitioner.

The City Legal Officer & Chief, Law Department for Mayor Macario A. Asistio, Jr. and
the City Government of Caloocan.

ROMERO, J.:

The clash between the responsibility of the City Government of Caloocan to dispose off
the 350 tons of garbage it collects daily and the growing concern and sensitivity to a
pollution-free environment of the residents of Barangay Camarin, Tala Estate, Caloocan
City where these tons of garbage are dumped everyday is the hub of this controversy
elevated by the protagonists to the Laguna Lake Development Authority (LLDA) for
adjudication.

The instant case stemmed from an earlier petition filed with this Court by Laguna Lake
Development Authority (LLDA for short) docketed as G.R.
No. 107542 against the City Government of Caloocan, et al. In the Resolution of
November 10, 1992, this Court referred G.R. No. 107542 to the Court of Appeals for
appropriate disposition. Docketed therein as CA-G.R. SP
1
No. 29449, the Court of Appeals, in a decision promulgated on January 29, 1993 ruled
that the LLDA has no power and authority to issue a cease and desist order enjoining
the dumping of garbage in Barangay Camarin, Tala Estate, Caloocan City. The LLDA
now seeks, in this petition, a review of the decision of the Court of Appeals.

The facts, as disclosed in the records, are undisputed.

On March 8, 1991, the Task Force Camarin Dumpsite of Our Lady of Lourdes Parish,
Barangay Camarin, Caloocan City, filed a letter-complaint2 with the Laguna Lake
Development Authority seeking to stop the operation of the 8.6-hectare open garbage
dumpsite in Tala Estate, Barangay Camarin, Caloocan City due to its harmful effects on
the health of the residents and the possibility of pollution of the water content of the
surrounding area.

On November 15, 1991, the LLDA conducted an on-site investigation, monitoring and
test sampling of the leachate3that seeps from said dumpsite to the nearby creek which
is a tributary of the Marilao River. The LLDA Legal and Technical personnel found that
the City Government of Caloocan was maintaining an open dumpsite at the Camarin
area without first securing an Environmental Compliance Certificate (ECC) from the
Environmental Management Bureau (EMB) of the Department of Environment and
Natural Resources, as required under Presidential Decree No. 1586, 4 and clearance
from LLDA as required under Republic Act No. 4850, 5 as amended by Presidential
Decree No. 813 and Executive Order No. 927, series of 1983.6

After a public hearing conducted on December 4, 1991, the LLDA, acting on the
complaint of Task Force Camarin Dumpsite, found that the water collected from the
leachate and the receiving streams could considerably affect the quality, in turn, of the
receiving waters since it indicates the presence of bacteria, other than coliform, which
may have contaminated the sample during collection or handling. 7 On December 5,
1991, the LLDA issued a Cease and Desist Order8 ordering the City Government of
Caloocan, Metropolitan Manila Authority, their contractors, and other entities, to
completely halt, stop and desist from dumping any form or kind of garbage and other
waste matter at the Camarin dumpsite.

The dumping operation was forthwith stopped by the City Government of Caloocan.
However, sometime in August 1992 the dumping operation was resumed after a
meeting held in July 1992 among the City Government of Caloocan, the representatives
of Task Force Camarin Dumpsite and LLDA at the Office of Environmental Management
Bureau Director Rodrigo U. Fuentes failed to settle the problem.

After an investigation by its team of legal and technical personnel on August 14, 1992,
the LLDA issued another order reiterating the December 5, 1991, order and issued an
Alias Cease and Desist Order enjoining the City Government of Caloocan from
continuing its dumping operations at the Camarin area.

On September 25, 1992, the LLDA, with the assistance of the Philippine National
Police, enforced its Alias Cease and Desist Order by prohibiting the entry of all garbage
dump trucks into the Tala Estate, Camarin area being utilized as a dumpsite.

Pending resolution of its motion for reconsideration earlier filed on September 17, 1992
with the LLDA, the City Government of Caloocan filed with the Regional Trial Court of
Caloocan City an action for the declaration of nullity of the cease and desist order with
prayer for the issuance of writ of injunction, docketed as Civil Case No. C-15598. In its
complaint, the City Government of Caloocan sought to be declared as the sole authority
empowered to promote the health and safety and enhance the right of the people in
Caloocan City to a balanced ecology within its territorial jurisdiction.9

On September 25, 1992, the Executive Judge of the Regional Trial Court of Caloocan
City issued a temporary restraining order enjoining the LLDA from enforcing its cease
and desist order. Subsequently, the case was raffled to the Regional Trial Court, Branch
126 of Caloocan which, at the time, was presided over by Judge Manuel Jn. Serapio of
the Regional Trial Court, Branch 127, the pairing judge of the recently-retired presiding
judge.

The LLDA, for its part, filed on October 2, 1992 a motion to dismiss on the ground,
among others, that under Republic Act No. 3931, as amended by Presidential Decree
No. 984, otherwise known as the Pollution Control Law, the cease and desist order
issued by it which is the subject matter of the complaint is reviewable both upon the law
and the facts of the case by the Court of Appeals and not by the Regional Trial Court. 10

On October 12, 1992 Judge Manuel Jn. Serapio issued an order consolidating Civil
Case No. C-15598 with Civil Case No. C-15580, an earlier case filed by the Task Force
Camarin Dumpsite entitled "Fr. John Moran, et al. vs. Hon. Macario Asistio." The LLDA,
however, maintained during the trial that the foregoing cases, being independent of
each other, should have been treated separately.

On October 16, 1992, Judge Manuel Jn. Serapio, after hearing the motion to dismiss,
issued in the consolidated cases an order11 denying LLDA's motion to dismiss and
granting the issuance of a writ of preliminary injunction enjoining the LLDA, its agent
and all persons acting for and on its behalf, from enforcing or implementing its cease
and desist order which prevents plaintiff City of Caloocan from dumping garbage at the
Camarin dumpsite during the pendency of this case and/or until further orders of the
court.
On November 5, 1992, the LLDA filed a petition for certiorari, prohibition and injunction
with prayer for restraining order with the Supreme Court, docketed as G.R. No. 107542,
seeking to nullify the aforesaid order dated October 16, 1992 issued by the Regional
Trial Court, Branch 127 of Caloocan City denying its motion to dismiss.

The Court, acting on the petition, issued a Resolution12 on November 10, 1992 referring
the case to the Court of Appeals for proper disposition and at the same time, without
giving due course to the petition, required the respondents to comment on the petition
and file the same with the Court of Appeals within ten (10) days from notice. In the
meantime, the Court issued a temporary restraining order, effective immediately and
continuing until further orders from it, ordering the respondents: (1) Judge Manuel Jn.
Serapio, Presiding Judge, Regional Trial Court, Branch 127, Caloocan City to cease
and desist from exercising jurisdiction over the case for declaration of nullity of the
cease and desist order issued by the Laguna Lake Development Authority (LLDA); and
(2) City Mayor of Caloocan and/or the City Government of Caloocan to cease and desist
from dumping its garbage at the Tala Estate, Barangay Camarin, Caloocan City.

Respondents City Government of Caloocan and Mayor Macario A. Asistio, Jr. filed on
November 12, 1992 a motion for reconsideration and/or to quash/recall the temporary
restraining order and an urgent motion for reconsideration alleging that ". . . in view of
the calamitous situation that would arise if the respondent city government fails to
collect 350 tons of garbage daily for lack of dumpsite (i)t is therefore, imperative that the
issue be resolved with dispatch or with sufficient leeway to allow the respondents to find
alternative solutions to this garbage problem."

On November 17, 1992, the Court issued a Resolution 13 directing the Court of Appeals
to immediately set the case for hearing for the purpose of determining whether or not
the temporary restraining order issued by the Court should be lifted and what
conditions, if any, may be required if it is to be so lifted or whether the restraining order
should be maintained or converted into a preliminary injunction.

The Court of Appeals set the case for hearing on November 27, 1992, at 10:00 in the
morning at the Hearing Room, 3rd Floor, New Building, Court of Appeals. 14 After the
oral argument, a conference was set on December 8, 1992 at 10:00 o'clock in the
morning where the Mayor of Caloocan City, the General Manager of LLDA, the
Secretary of DENR or his duly authorized representative and the Secretary of DILG or
his duly authorized representative were required to appear.

It was agreed at the conference that the LLDA had until December 15, 1992 to finish its
study and review of respondent's technical plan with respect to the dumping of its
garbage and in the event of a rejection of respondent's technical plan or a failure of
settlement, the parties will submit within 10 days from notice their respective
memoranda on the merits of the case, after which the petition shall be deemed
submitted for resolution.15Notwithstanding such efforts, the parties failed to settle the
dispute.

On April 30, 1993, the Court of Appeals promulgated its decision holding that: (1) the
Regional Trial Court has no jurisdiction on appeal to try, hear and decide the action for
annulment of LLDA's cease and desist order, including the issuance of a temporary
restraining order and preliminary injunction in relation thereto, since appeal therefrom is
within the exclusive and appellate jurisdiction of the Court of Appeals under Section 9,
par. (3), of Batas Pambansa Blg. 129; and (2) the Laguna Lake Development Authority
has no power and authority to issue a cease and desist order under its enabling law,
Republic Act No. 4850, as amended by P.D. No. 813 and Executive Order
No. 927, series of 1983.
The Court of Appeals thus dismissed Civil Case No. 15598 and the preliminary
injunction issued in the said case was set aside; the cease and desist order of LLDA
was likewise set aside and the temporary restraining order enjoining the City Mayor of
Caloocan and/or the City Government of Caloocan to cease and desist from dumping its
garbage at the Tala Estate, Barangay Camarin, Caloocan City was lifted, subject,
however, to the condition that any future dumping of garbage in said area, shall be in
conformity with the procedure and protective works contained in the proposal attached
to the records of this case and found on pages 152-160 of the Rollo, which was thereby
adopted by reference and made an integral part of the decision, until the corresponding
restraining and/or injunctive relief is granted by the proper Court upon LLDA's institution
of the necessary legal proceedings.

Hence, the Laguna Lake Development Authority filed the instant petition for review
on certiorari, now docketed as G.R. No. 110120, with prayer that the temporary
restraining order lifted by the Court of Appeals be re-issued until after final
determination by this Court of the issue on the proper interpretation of the powers and
authority of the LLDA under its enabling law.

On July, 19, 1993, the Court issued a temporary restraining order 16 enjoining the City
Mayor of Caloocan and/or the City Government of Caloocan to cease and desist from
dumping its garbage at the Tala Estate, Barangay Camarin, Caloocan City, effective as
of this date and containing until otherwise ordered by the Court.

It is significant to note that while both parties in this case agree on the need to protect
the environment and to maintain the ecological balance of the surrounding areas of the
Camarin open dumpsite, the question as to which agency can lawfully exercise
jurisdiction over the matter remains highly open to question.

The City Government of Caloocan claims that it is within its power, as a local
government unit, pursuant to the general welfare provision of the Local Government
Code, 17 to determine the effects of the operation of the dumpsite on the ecological
balance and to see that such balance is maintained. On the basis of said contention, it
questioned, from the inception of the dispute before the Regional Trial Court of
Caloocan City, the power and authority of the LLDA to issue a cease and desist order
enjoining the dumping of garbage in the Barangay Camarin over which the City
Government of Caloocan has territorial jurisdiction.

The Court of Appeals sustained the position of the City of Caloocan on the theory that
Section 7 of Presidential Decree No. 984, otherwise known as the Pollution Control law,
authorizing the defunct National Pollution Control Commission to issue an ex-
parte cease and desist order was not incorporated in Presidential Decree No. 813 nor in
Executive Order No. 927, series of
1983. The Court of Appeals ruled that under Section 4, par. (d), of Republic Act No.
4850, as amended, the LLDA is instead required "to institute the necessary legal
proceeding against any person who shall commence to implement or continue
implementation of any project, plan or program within the Laguna de Bay region without
previous clearance from the Authority."

The LLDA now assails, in this partition for review, the abovementioned ruling of the
Court of Appeals, contending that, as an administrative agency which was granted
regulatory and adjudicatory powers and functions by Republic Act No. 4850 and its
amendatory laws, Presidential Decree No. 813 and Executive Order No. 927, series of
1983, it is invested with the power and authority to issue a cease and desist order
pursuant to Section 4 par. (c), (d), (e), (f) and (g) of Executive Order No. 927 series of
1983 which provides, thus:
Sec. 4. Additional Powers and Functions. The authority shall have the
following powers and functions:

xxx xxx xxx

(c) Issue orders or decisions to compel compliance with the provisions of


this Executive Order and its implementing rules and regulations only after
proper notice and hearing.

(d) Make, alter or modify orders requiring the discontinuance of pollution


specifying the conditions and the time within which such discontinuance
must be accomplished.

(e) Issue, renew, or deny permits, under such conditions as it may


determine to be reasonable, for the prevention and abatement of pollution,
for the discharge of sewage, industrial waste, or for the installation or
operation of sewage works and industrial disposal system or parts thereof.

(f) After due notice and hearing, the Authority may also revoke, suspend
or modify any permit issued under this Order whenever the same is
necessary to prevent or abate pollution.

(g) Deputize in writing or request assistance of appropriate government


agencies or instrumentalities for the purpose of enforcing this Executive
Order and its implementing rules and regulations and the orders and
decisions of the Authority.

The LLDA claims that the appellate court deliberately suppressed and totally
disregarded the above provisions of Executive Order No. 927, series of 1983, which
granted administrative quasi-judicial functions to LLDA on pollution abatement cases.

In light of the relevant environmental protection laws cited which are applicable in this
case, and the corresponding overlapping jurisdiction of government agencies
implementing these laws, the resolution of the issue of whether or not the LLDA has the
authority and power to issue an order which, in its nature and effect was injunctive,
necessarily requires a determination of the threshold question: Does the Laguna Lake
Development Authority, under its Charter and its amendatory laws, have the authority to
entertain the complaint against the dumping of garbage in the open dumpsite in
Barangay Camarin authorized by the City Government of Caloocan which is allegedly
endangering the health, safety, and welfare of the residents therein and the sanitation
and quality of the water in the area brought about by exposure to pollution caused by
such open garbage dumpsite?

The matter of determining whether there is such pollution of the environment that
requires control, if not prohibition, of the operation of a business establishment is
essentially addressed to the Environmental Management Bureau (EMB) of the DENR
which, by virtue of Section 16 of Executive Order No. 192, series of 1987, 18 has
assumed the powers and functions of the defunct National Pollution Control
Commission created under Republic Act No. 3931. Under said Executive Order, a
Pollution Adjudication Board (PAB) under the Office of the DENR Secretary now
assumes the powers and functions of the National Pollution Control Commission with
respect to adjudication of pollution cases. 19

As a general rule, the adjudication of pollution cases generally pertains to the Pollution
Adjudication Board (PAB), except in cases where the special law provides for another
forum. It must be recognized in this regard that the LLDA, as a specialized
administrative agency, is specifically mandated under Republic Act No. 4850 and its
amendatory laws to carry out and make effective the declared national policy 20 of
promoting and accelerating the development and balanced growth of the Laguna Lake
area and the surrounding provinces of Rizal and Laguna and the cities of San Pablo,
Manila, Pasay, Quezon and Caloocan21 with due regard and adequate provisions for
environmental management and control, preservation of the quality of human life and
ecological systems, and the prevention of undue ecological disturbances, deterioration
and pollution. Under such a broad grant and power and authority, the LLDA, by virtue of
its special charter, obviously has the responsibility to protect the inhabitants of the
Laguna Lake region from the deleterious effects of pollutants emanating from the
discharge of wastes from the surrounding areas. In carrying out the aforementioned
declared policy, the LLDA is mandated, among others, to pass upon and approve or
disapprove all plans, programs, and projects proposed by local government
offices/agencies within the region, public corporations, and private persons or
enterprises where such plans, programs and/or projects are related to those of the
LLDA for the development of the region. 22

In the instant case, when the complainant Task Force Camarin Dumpsite of Our Lady of
Lourdes Parish, Barangay Camarin, Caloocan City, filed its letter-complaint before the
LLDA, the latter's jurisdiction under its charter was validly invoked by complainant on
the basis of its allegation that the open dumpsite project of the City Government of
Caloocan in Barangay Camarin was undertaken without a clearance from the LLDA, as
required under Section 4, par. (d), of Republic Act. No. 4850, as amended by P.D. No.
813 and Executive Order No. 927. While there is also an allegation that the said project
was without an Environmental Compliance Certificate from the Environmental
Management Bureau (EMB) of the DENR, the primary jurisdiction of the LLDA over this
case was recognized by the Environmental Management Bureau of the DENR when the
latter acted as intermediary at the meeting among the representatives of the City
Government of Caloocan, Task Force Camarin Dumpsite and LLDA sometime in July
1992 to discuss the possibility of
re-opening the open dumpsite.

Having thus resolved the threshold question, the inquiry then narrows down to the
following issue: Does the LLDA have the power and authority to issue a "cease and
desist" order under Republic Act No. 4850 and its amendatory laws, on the basis of the
facts presented in this case, enjoining the dumping of garbage in Tala Estate, Barangay
Camarin, Caloocan City.

The irresistible answer is in the affirmative.

The cease and desist order issued by the LLDA requiring the City Government of
Caloocan to stop dumping its garbage in the Camarin open dumpsite found by the
LLDA to have been done in violation of Republic Act No. 4850, as amended, and other
relevant environment laws,23 cannot be stamped as an unauthorized exercise by the
LLDA of injunctive powers. By its express terms, Republic Act No. 4850, as amended
by P.D. No. 813 and Executive Order No. 927, series of 1983, authorizes the LLDA to
"make, alter or modify order requiring the discontinuance or pollution." 24 (Emphasis
supplied) Section 4, par. (d) explicitly authorizes the LLDA to make whatever order may
be necessary in the exercise of its jurisdiction.

To be sure, the LLDA was not expressly conferred the power "to issue and ex-
parte cease and desist order" in a language, as suggested by the City Government of
Caloocan, similar to the express grant to the defunct National Pollution Control
Commission under Section 7 of P.D. No. 984 which, admittedly was not reproduced in
P.D. No. 813 and E.O. No. 927, series of 1983. However, it would be a mistake to draw
therefrom the conclusion that there is a denial of the power to issue the order in
question when the power "to make, alter or modify orders requiring the discontinuance
of pollution" is expressly and clearly bestowed upon the LLDA by Executive Order No.
927, series of 1983.

Assuming arguendo that the authority to issue a "cease and desist order" were not
expressly conferred by law, there is jurisprudence enough to the effect that the rule
granting such authority need not necessarily be express.25 While it is a fundamental rule
that an administrative agency has only such powers as are expressly granted to it by
law, it is likewise a settled rule that an administrative agency has also such powers as
are necessarily implied in the exercise of its express powers. 26 In the exercise,
therefore, of its express powers under its charter as a regulatory and quasi-judicial body
with respect to pollution cases in the Laguna Lake region, the authority of the LLDA to
issue a "cease and desist order" is, perforce, implied. Otherwise, it may well be reduced
to a "toothless" paper agency.

In this connection, it must be noted that in Pollution Adjudication Board v. Court of


Appeals, et al.,27 the Court ruled that the Pollution Adjudication Board (PAB) has the
power to issue an ex-parte cease and desist order when there isprima facie evidence of
an establishment exceeding the allowable standards set by the anti-pollution laws of the
country. The ponente, Associate Justice Florentino P. Feliciano, declared:

Ex parte cease and desist orders are permitted by law and regulations in
situations like that here presented precisely because stopping the
continuous discharge of pollutive and untreated effluents into the rivers
and other inland waters of the Philippines cannot be made to wait until
protracted litigation over the ultimate correctness or propriety of such
orders has run its full course, 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 pervasive,
sovereign power to protect the safety, health, and general welfare and
comfort of the public, as well as the protection of plant and animal life,
commonly designated as the police power. It is a constitutional
commonplace that the ordinary requirements of procedural due process
yield to the necessities of protecting vital public interests like those here
involved, through the exercise of police power. . . .

The immediate response to the demands of "the necessities of protecting vital public
interests" gives vitality to the statement on ecology embodied in the Declaration of
Principles and State Policies or the 1987 Constitution. Article II, Section 16 which
provides:

The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.

As a constitutionally guaranteed right of every person, it carries the correlative duty of


non-impairment. This is but in consonance with the declared policy of the state "to
protect and promote the right to health of the people and instill health consciousness
among them."28 It is to be borne in mind that the Philippines is party to the Universal
Declaration of Human Rights and the Alma Conference Declaration of 1978 which
recognize health as a fundamental human right. 29

The issuance, therefore, of the cease and desist order by the LLDA, as a practical
matter of procedure under the circumstances of the case, is a proper exercise of its
power and authority under its charter and its amendatory laws. Had the cease and
desist order issued by the LLDA been complied with by the City Government of
Caloocan as it did in the first instance, no further legal steps would have been
necessary.
The charter of LLDA, Republic Act No. 4850, as amended, instead of conferring upon
the LLDA the means of directly enforcing such orders, has provided under its Section 4
(d) the power to institute "necessary legal proceeding against any person who shall
commence to implement or continue implementation of any project, plan or program
within the Laguna de Bay region without previous clearance from the LLDA."

Clearly, said provision was designed to invest the LLDA with sufficiently broad powers
in the regulation of all projects initiated in the Laguna Lake region, whether by the
government or the private sector, insofar as the implementation of these projects is
concerned. It was meant to deal with cases which might possibly arise where decisions
or orders issued pursuant to the exercise of such broad powers may not be obeyed,
resulting in the thwarting of its laudabe objective. To meet such contingencies, then the
writs of mandamus and injunction which are beyond the power of the LLDA to issue,
may be sought from the proper courts.

Insofar as the implementation of relevant anti-pollution laws in the Laguna Lake region
and its surrounding provinces, cities and towns are concerned, the Court will not dwell
further on the related issues raised which are more appropriately addressed to an
administrative agency with the special knowledge and expertise of the LLDA.

WHEREFORE, the petition is GRANTED. The temporary restraining order issued by the
Court on July 19, 1993 enjoining the City Mayor of Caloocan and/or the City
Government of Caloocan from dumping their garbage at the Tala Estate, Barangay
Camarin, Caloocan City is hereby made permanent.

SO ORDERED.

OPOSA VS FACTORAN

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and
healthful ecology which the petitioners dramatically associate with the twin concepts of
"inter-generational responsibility" and "inter-generational justice." Specifically, it touches
on the issue of whether the said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests and "arrest the unabated
hemorrhage of the country's vital life support systems and continued rape of Mother
Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch
66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial
Region. The principal plaintiffs therein, now the principal petitioners, are all minors duly
represented and joined by their respective parents. Impleaded as an additional plaintiff
is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit
corporation organized for the purpose of, inter alia, engaging in concerted action geared
for the protection of our environment and natural resources. The original defendant was
the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of
Environment and Natural Resources (DENR). His substitution in this petition by the new
Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper
motion by the petitioners.1 The complaint2 was instituted as a taxpayers' class suit3 and
alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers,
and entitled to the full benefit, use and enjoyment of the natural resource treasure that is
the country's virgin tropical forests." The same was filed for themselves and others who
are equally concerned about the preservation of said resource but are "so numerous
that it is impracticable to bring them all before the Court." The minors further asseverate
that they "represent their generation as well as generations yet unborn." 4 Consequently,
it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons
acting in his behalf to —

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or


approving new timber license agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the
premises."5

The complaint starts off with the general averments that the Philippine archipelago of
7,100 islands has a land area of thirty million (30,000,000) hectares and is endowed
with rich, lush and verdant rainforests in which varied, rare and unique species of flora
and fauna may be found; these rainforests contain a genetic, biological and chemical
pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures
which have existed, endured and flourished since time immemorial; scientific evidence
reveals that in order to maintain a balanced and healthful ecology, the country's land
area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover
and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other
uses; the distortion and disturbance of this balance as a consequence of deforestation
have resulted in a host of environmental tragedies, such as (a) water shortages
resulting from drying up of the water table, otherwise known as the "aquifer," as well as
of rivers, brooks and streams, (b) salinization of the water table as a result of the
intrusion therein of salt water, incontrovertible examples of which may be found in the
island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the
consequential loss of soil fertility and agricultural productivity, with the volume of soil
eroded estimated at one billion (1,000,000,000) cubic meters per annum —
approximately the size of the entire island of Catanduanes, (d) the endangering and
extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance
and dislocation of cultural communities, including the disappearance of the Filipino's
indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction
of corals and other aquatic life leading to a critical reduction in marine resource
productivity, (g) recurrent spells of drought as is presently experienced by the entire
country, (h) increasing velocity of typhoon winds which result from the absence of
windbreakers, (i) the floodings of lowlands and agricultural plains arising from the
absence of the absorbent mechanism of forests, (j) the siltation and shortening of the
lifespan of multi-billion peso dams constructed and operated for the purpose of
supplying water for domestic uses, irrigation and the generation of electric power, and
(k) the reduction of the earth's capacity to process carbon dioxide gases which has led
to perplexing and catastrophic climatic changes such as the phenomenon of global
warming, otherwise known as the "greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and
deforestation are so capable of unquestionable demonstration that the same may be
submitted as a matter of judicial notice. This notwithstanding, they expressed their
intention to present expert witnesses as well as documentary, photographic and film
evidence in the course of the trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.


8. Twenty-five (25) years ago, the Philippines had some sixteen (16)
million hectares of rainforests constituting roughly 53% of the country's
land mass.

9. Satellite images taken in 1987 reveal that there remained no more than
1.2 million hectares of said rainforests or four per cent (4.0%) of the
country's land area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-
growth rainforests are left, barely 2.8% of the entire land mass of the
Philippine archipelago and about 3.0 million hectares of immature and
uneconomical secondary growth forests.

11. Public records reveal that the defendant's, predecessors have granted
timber license agreements ('TLA's') to various corporations to cut the
aggregate area of 3.89 million hectares for commercial logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto
attached as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per
annum or 25 hectares per hour — nighttime, Saturdays, Sundays and
holidays included — the Philippines will be bereft of forest resources after
the end of this ensuing decade, if not earlier.

13. The adverse effects, disastrous consequences, serious injury and


irreparable damage of this continued trend of deforestation to the plaintiff
minor's generation and to generations yet unborn are evident and
incontrovertible. As a matter of fact, the environmental damages
enumerated in paragraph 6 hereof are already being felt, experienced and
suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and


deforest the remaining forest stands will work great damage and
irreparable injury to plaintiffs — especially plaintiff minors and their
successors — who may never see, use, benefit from and enjoy this rare
and unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of


the natural resource property he holds in trust for the benefit of plaintiff
minors and succeeding generations.

15. Plaintiffs have a clear and constitutional right to a balanced and


healthful ecology and are entitled to protection by the State in its capacity
as the parens patriae.

16. Plaintiff have exhausted all administrative remedies with the


defendant's office. On March 2, 1990, plaintiffs served upon defendant a
final demand to cancel all logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as


Annex "B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to
the continuing serious damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is
an act violative of the rights of plaintiffs, especially plaintiff minors who
may be left with a country that is desertified (sic), bare, barren and devoid
of the wonderful flora, fauna and indigenous cultures which the Philippines
had been abundantly blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly


contrary to the public policy enunciated in the Philippine Environmental
Policy which, in pertinent part, states that it is the policy of the State —

(a) to create, develop, maintain and improve conditions under which man
and nature can thrive in productive and enjoyable harmony with each
other;

(b) to fulfill the social, economic and other requirements of present and
future generations of Filipinos and;

(c) to ensure the attainment of an environmental quality that is conductive


to a life of dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the


aforementioned TLA's is contradictory to the Constitutional policy of the
State to —

a. effect "a more equitable distribution of opportunities, income and


wealth" and "make full and efficient use of natural resources (sic)."
(Section 1, Article XII of the Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources


(sic)" (Section 14, Article XIV, id.);

d. "protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature." (Section 16,
Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind —


the natural law — and violative of plaintiffs' right to self-preservation and
perpetuation.

22. There is no other plain, speedy and adequate remedy in law other
than the instant action to arrest the unabated hemorrhage of the country's
vital life support systems and continued rape of Mother Earth. 6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to
Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no
cause of action against him and (2) the issue raised by the plaintiffs is a political
question which properly pertains to the legislative or executive branches of
Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain
that (1) the complaint shows a clear and unmistakable cause of action, (2) the motion is
dilatory and (3) the action presents a justiciable question as it involves the defendant's
abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned


motion to dismiss.7 In the said order, not only was the defendant's claim — that the
complaint states no cause of action against him and that it raises a political question —
sustained, the respondent Judge further ruled that the granting of the relief prayed for
would result in the impairment of contracts which is prohibited by the fundamental law of
the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the
Revised Rules of Court and ask this Court to rescind and set aside the dismissal order
on the ground that the respondent Judge gravely abused his discretion in dismissing the
action. Again, the parents of the plaintiffs-minors not only represent their children, but
have also joined the latter in this case.8

On 14 May 1992, We resolved to give due course to the petition and required the
parties to submit their respective Memoranda after the Office of the Solicitor General
(OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply
thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action
as it contains sufficient allegations concerning their right to a sound environment based
on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive
Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No.
1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution
recognizing the right of the people to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept of man's inalienable right to self-
preservation and self-perpetuation embodied in natural law. Petitioners likewise rely on
the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the
people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of
discretion in granting Timber License Agreements (TLAs) to cover more areas for
logging than what is available involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment


clause, petitioners maintain that the same does not apply in this case because TLAs are
not contracts. They likewise submit that even if TLAs may be considered protected by
the said clause, it is well settled that they may still be revoked by the State when the
public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their
complaint a specific legal right violated by the respondent Secretary for which any relief
is provided by law. They see nothing in the complaint but vague and nebulous
allegations concerning an "environmental right" which supposedly entitles the
petitioners to the "protection by the state in its capacity as parens patriae." Such
allegations, according to them, do not reveal a valid cause of action. They then reiterate
the theory that the question of whether logging should be permitted in the country is a
political question which should be properly addressed to the executive or legislative
branches of Government. They therefore assert that the petitioners' resources is not to
file an action to court, but to lobby before Congress for the passage of a bill that would
ban logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same
cannot be done by the State without due process of law. Once issued, a TLA remains
effective for a certain period of time — usually for twenty-five (25) years. During its
effectivity, the same can neither be revised nor cancelled unless the holder has been
found, after due notice and hearing, to have violated the terms of the agreement or
other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the
requirements of due process.
Before going any further, We must first focus on some procedural matters. Petitioners
instituted Civil Case No. 90-777 as a class suit. The original defendant and the present
respondents did not take issue with this matter. Nevertheless, We hereby rule that the
said civil case is indeed a class suit. The subject matter of the complaint is of common
and general interest not just to several, but to all citizens of the Philippines.
Consequently, since the parties are so numerous, it, becomes impracticable, if not
totally impossible, to bring all of them before the court. We likewise declare that the
plaintiffs therein are numerous and representative enough to ensure the full protection
of all concerned interests. Hence, all the requisites for the filing of a valid class suit
under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil
case and in the instant petition, the latter being but an incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that
they represent their generation as well as generations yet unborn. We find no difficulty
in ruling that they can, for themselves, for others of their generation and for the
succeeding generations, file a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its
entirety.9 Such rhythm and harmony indispensably include, inter alia, the judicious
disposition, utilization, management, renewal and conservation of the country's forest,
mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to
the end that their exploration, development and utilization be equitably accessible to the
present as well as future generations. 10Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a
balanced and healthful ecology. Put a little differently, the minors' assertion of their right
to a sound environment constitutes, at the same time, the performance of their
obligation to ensure the protection of that right for the generations to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed
to the merits of the petition.

After a careful perusal of the complaint in question and a meticulous consideration and
evaluation of the issues raised and arguments adduced by the parties, We do not
hesitate to find for the petitioners and rule against the respondent Judge's challenged
order for having been issued with grave abuse of discretion amounting to lack of
jurisdiction. The pertinent portions of the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court


cannot help but agree with the defendant. For although we believe that
plaintiffs have but the noblest of all intentions, it (sic) fell short of alleging,
with sufficient definiteness, a specific legal right they are seeking to
enforce and protect, or a specific legal wrong they are seeking to prevent
and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the
Complaint is replete with vague assumptions and vague conclusions
based on unverified data. In fine, plaintiffs fail to state a cause of action in
its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being
impressed with political color and involving a matter of public policy, may
not be taken cognizance of by this Court without doing violence to the
sacred principle of "Separation of Powers" of the three (3) co-equal
branches of the Government.
The Court is likewise of the impression that it cannot, no matter how we
stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to
cancel all existing timber license agreements in the country and to cease
and desist from receiving, accepting, processing, renewing or approving
new timber license agreements. For to do otherwise would amount to
"impairment of contracts" abhored (sic) by the fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with
sufficient definiteness a specific legal right involved or a specific legal wrong committed,
and that the complaint is replete with vague assumptions and conclusions based on
unverified data. A reading of the complaint itself belies these conclusions.

The complaint focuses on one specific fundamental legal right — the right to a balanced
and healthful ecology which, for the first time in our nation's constitutional history, is
solemnly incorporated in the fundamental law. Section 16, Article II of the 1987
Constitution explicitly provides:

Sec. 16. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of
nature.

This right unites with the right to health which is provided for in the
preceding section of the same article:

Sec. 15. The State shall protect and promote the right to health of the
people and instill health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration
of Principles and State Policies and not under the Bill of Rights, it does not follow that it
is less important than any of the civil and political rights enumerated in the latter. Such a
right belongs to a different category of rights altogether for it concerns nothing less than
self-preservation and self-perpetuation — aptly and fittingly stressed by the petitioners
— the advancement of which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need not even be written in the
Constitution for they are assumed to exist from the inception of humankind. If they are
now explicitly mentioned in the fundamental charter, it is because of the well-founded
fear of its framers that unless the rights to a balanced and healthful ecology and to
health are mandated as state policies by the Constitution itself, thereby highlighting their
continuing importance and imposing upon the state a solemn obligation to preserve the
first and protect and advance the second, the day would not be too far when all else
would be lost not only for the present generation, but also for those to come —
generations which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to
refrain from impairing the environment. During the debates on this right in one of the
plenary sessions of the 1986 Constitutional Commission, the following exchange
transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna
who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions


against all forms of pollution — air, water and noise
pollution?

MR. AZCUNA:
Yes, Madam President. The right to healthful (sic)
environment necessarily carries with it the correlative duty of
not impairing the same and, therefore, sanctions may be
provided for impairment of environmental balance. 12

The said right implies, among many other things, the judicious management and
conservation of the country's forests.

Without such forests, the ecological or environmental balance would be


irreversiby disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right
to health, as well as the other related provisions of the Constitution concerning the
conservation, development and utilization of the country's natural resources, 13 then
President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4
of which expressly mandates that the Department of Environment and Natural
Resources "shall be the primary government agency responsible for the conservation,
management, development and proper use of the country's environment and natural
resources, specifically forest and grazing lands, mineral, resources, including those in
reservation and watershed areas, and lands of the public domain, as well as the
licensing and regulation of all natural resources as may be provided for by law in order
to ensure equitable sharing of the benefits derived therefrom for the welfare of the
present and future generations of Filipinos." Section 3 thereof makes the following
statement of policy:

Sec. 3. Declaration of Policy. — It is hereby declared the policy of the


State to ensure the sustainable use, development, management, renewal,
and conservation of the country's forest, mineral, land, off-shore areas and
other natural resources, including the protection and enhancement of the
quality of the environment, and equitable access of the different segments
of the population to the development and the use of the country's natural
resources, not only for the present generation but for future generations as
well. It is also the policy of the state to recognize and apply a true value
system including social and environmental cost implications relative to
their utilization, development and conservation of our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the


Administrative Code of 1987,15 specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit
of the Filipino people, the full exploration and development as well as the
judicious disposition, utilization, management, renewal and conservation
of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources, consistent with the necessity of
maintaining a sound ecological balance and protecting and enhancing the
quality of the environment and the objective of making the exploration,
development and utilization of such natural resources equitably accessible
to the different segments of the present as well as future generations.

(2) The State shall likewise recognize and apply a true value system that
takes into account social and environmental cost implications relative to
the utilization, development and conservation of our natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balance
and protecting and enhancing the quality of the environment." Section 2 of the same
Title, on the other hand, specifically speaks of the mandate of the DENR; however, it
makes particular reference to the fact of the agency's being subject to law and higher
authority. Said section provides:

Sec. 2. Mandate. — (1) The Department of Environment and Natural


Resources shall be primarily responsible for the implementation of the
foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out
the State's constitutional mandate to control and supervise the exploration,
development, utilization, and conservation of the country's natural
resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which
will serve as the bases for policy formulation, and have defined the powers and
functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution,
specific statutes already paid special attention to the "environmental right" of the
present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine
Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued.
The former "declared a continuing policy of the State (a) to create, develop, maintain
and improve conditions under which man and nature can thrive in productive and
enjoyable harmony with each other, (b) to fulfill the social, economic and other
requirements of present and future generations of Filipinos, and (c) to insure the
attainment of an environmental quality that is conducive to a life of dignity and well-
being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and
guardian of the environment for succeeding generations." 17 The latter statute, on the
other hand, gave flesh to the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and
healthful ecology is as clear as the DENR's duty — under its mandate and by virtue of
its powers and functions under E.O. No. 192 and the Administrative Code of 1987 — to
protect and advance the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to
respect or protect the same gives rise to a cause of action. Petitioners maintain that the
granting of the TLAs, which they claim was done with grave abuse of discretion, violated
their right to a balanced and healthful ecology; hence, the full protection thereof requires
that no further TLAs should be renewed or granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of


the other; and its essential elements are legal right of the plaintiff,
correlative obligation of the defendant, and act or omission of the
defendant in violation of said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the
complaint fails to state a cause of action, 19 the question submitted to the court for
resolution involves the sufficiency of the facts alleged in the complaint itself. No other
matter should be considered; furthermore, the truth of falsity of the said allegations is
beside the point for the truth thereof is deemed hypothetically admitted. The only issue
to be resolved in such a case is: admitting such alleged facts to be true, may the court
render a valid judgment in accordance with the prayer in the complaint? 20 In Militante
vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the
utmost care and circumspection in passing upon a motion to dismiss on the ground of
the absence thereof [cause of action] lest, by its failure to manifest a correct
appreciation of the facts alleged and deemed hypothetically admitted, what the law
grants or recognizes is effectively nullified. If that happens, there is a blot on the legal
order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the
introductory affirmative allegations, as well as the specific averments under the sub-
heading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed
violation of their rights. On the basis thereof, they may thus be granted, wholly or partly,
the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the
TLAs is concerned, there is the need to implead, as party defendants, the grantees
thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question.
Policy formulation or determination by the executive or legislative branches of
Government is not squarely put in issue. What is principally involved is the enforcement
of a right vis-a-vis policies already formulated and expressed in legislation. It must,
nonetheless, be emphasized that the political question doctrine is no longer, the
insurmountable obstacle to the exercise of judicial power or the impenetrable shield that
protects executive and legislative actions from judicial inquiry or review. The second
paragraph of section 1, Article VIII of the Constitution states that:

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani
A. Cruz, a distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial
power, involving the settlement of conflicting rights as conferred as law.
The second part of the authority represents a broadening of judicial power
to enable the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of the
government.

As worded, the new provision vests in the judiciary, and particularly the
Supreme Court, the power to rule upon even the wisdom of the decisions
of the executive and the legislature and to declare their acts invalid for
lack or excess of jurisdiction because tainted with grave abuse of
discretion. The catch, of course, is the meaning of "grave abuse of
discretion," which is a very elastic phrase that can expand or contract
according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less
tenable and decisive. The reason is that, even if we were to assume that
the issue presented before us was political in nature, we would still not be
precluded from revolving it under the expanded jurisdiction conferred upon
us that now covers, in proper cases, even the political question. Article VII,
Section 1, of the Constitution clearly provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-
impairment of contracts clause found in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we
stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to
cancel all existing timber license agreements in the country and to cease
and desist from receiving, accepting, processing, renewing or approving
new timber license agreements. For to do otherwise would amount to
"impairment of contracts" abhored (sic) by the fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a
sweeping pronouncement. In the first place, the respondent Secretary did not, for
obvious reasons, even invoke in his motion to dismiss the non-impairment clause. If he
had done so, he would have acted with utmost infidelity to the Government by providing
undue and unwarranted benefits and advantages to the timber license holders because
he would have forever bound the Government to strictly respect the said licenses
according to their terms and conditions regardless of changes in policy and the
demands of public interest and welfare. He was aware that as correctly pointed out by
the petitioners, into every timber license must be read Section 20 of the Forestry
Reform Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the President


may amend, modify, replace or rescind any contract, concession, permit,
licenses or any other form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive


action. It is not a contract, property or a property right protested by the due
process clause of the Constitution. In Tan vs. Director of Forestry, 25 this Court
held:

. . . A timber license is an instrument by which the State regulates the


utilization and disposition of forest resources to the end that public welfare
is promoted. A timber license is not a contract within the purview of the
due process clause; it is only a license or privilege, which can be validly
withdrawn whenever dictated by public interest or public welfare as in this
case.

A license is merely a permit or privilege to do what otherwise would be


unlawful, and is not a contract between the authority, federal, state, or
municipal, granting it and the person to whom it is granted; neither is it
property or a property right, nor does it create a vested right; nor is it
taxation (37 C.J. 168). Thus, this Court held that the granting of license
does not create irrevocable rights, neither is it property or property rights
(People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive
Secretary: 26

. . . Timber licenses, permits and license agreements are the principal


instruments by which the State regulates the utilization and disposition of
forest resources to the end that public welfare is promoted. And it can
hardly be gainsaid that they merely evidence a privilege granted by the
State to qualified entities, and do not vest in the latter a permanent or
irrevocable right to the particular concession area and the forest products
therein. They may be validly amended, modified, replaced or rescinded by
the Chief Executive when national interests so require. Thus, they are not
deemed contracts within the purview of the due process of law clause
[See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also,
Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125
SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed. 27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant
case does not involve a law or even an executive issuance declaring the cancellation or
modification of existing timber licenses. Hence, the non-impairment clause cannot as
yet be invoked. Nevertheless, granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot still be stigmatized as a
violation of the non-impairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the police power of the
state for the purpose of advancing the right of the people to a balanced and healthful
ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster
Wheeler
Corp. 28 this Court stated:

The freedom of contract, under our system of government, is not meant to


be absolute. The same is understood to be subject to reasonable
legislative regulation aimed at the promotion of public health, moral, safety
and welfare. In other words, the constitutional guaranty of non-impairment
of obligations of contract is limited by the exercise of the police power of
the State, in the interest of public health, safety, moral and general
welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted
in Philippine American Life Insurance Co. vs. Auditor General,30 to wit:

Under our form of government the use of property and the making of
contracts are normally matters of private and not of public concern. The
general rule is that both shall be free of governmental interference. But
neither property rights nor contract rights are absolute; for government
cannot exist if the citizen may at will use his property to the detriment of
his fellows, or exercise his freedom of contract to work them harm. Equally
fundamental with the private right is that of the public to regulate it in the
common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause
could apply with respect to the prayer to enjoin the respondent Secretary from receiving,
accepting, processing, renewing or approving new timber licenses for, save in cases
of renewal, no contract would have as of yet existed in the other instances. Moreover,
with respect to renewal, the holder is not entitled to it as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED,
and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case
No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint to
implead as defendants the holders or grantees of the questioned timber license
agreements.

No pronouncement as to costs.

SO ORDERED.

G.R. No. 74930 February 13, 1989


RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO
BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN
"NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO
FADUL, petitioners,
vs.
FELICIANO BELMONTE, JR., respondent.

Ricardo C. Valmonte for and in his own behalf and his co-petitioners.

The Solicitor General for respondent.

CORTES, J.:

Petitioners in this special civil action for mandamus with preliminary injunction invoke
their right to information and pray that respondent be directed:

(a) to furnish petitioners the list of the names of the


Batasang Pambansa members belonging to the UNIDO and
PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda
Marcos; and/or

(b) to furnish petitioners with certified true copies of the


documents evidencing their respective loans; and/or

(c) to allow petitioners access to the public records for the


subject information. (Petition, pp. 4-5; paragraphing
supplied.]

The controversy arose when petitioner Valmonte wrote respondent Belmonte the
following letter:

June 4, 1986

Hon. Feliciano Belmonte


GSIS General Manager
Arroceros, Manila

Sir:

As a lawyer, member of the media and plain citizen of our Republic, I am


requesting that I be furnished with the list of names of the opposition
members of (the) Batasang Pambansa who were able to secure a clean
loan of P2 million each on guarranty (sic) of Mrs. Imelda Marcos. We
understand that OIC Mel Lopez of Manila was one of those aforesaid
MPs. Likewise, may we be furnished with the certified true copies of the
documents evidencing their loan. Expenses in connection herewith shall
be borne by us.

If we could not secure the above documents could we have access to


them?
We are premising the above request on the following provision of the
Freedom Constitution of the present regime.

The right of the people to information on matters of public


concern shall be recognized. Access to official records, and
to documents and papers pertaining to official acts,
transactions or decisions, shall be afforded the citizen
subject to such limitation as may be provided by law. (Art. IV,
Sec. 6).

We trust that within five (5) days from receipt hereof we will receive your
favorable response on the matter.

(
S
g
d
.
)

R
I
C
A
R
D
O

C
.

V
A
L
M
O
N
T
E
[Rollo, p. 7.]

To the aforesaid letter, the Deputy General Counsel of the GSIS replied:

June 17, 1986

Atty. Ricardo C. Valmonte


108 E. Benin Street
Caloocan City

Dear Compañero:

Possibly because he must have thought that it contained serious legal


implications, President & General Manager Feliciano Belmonte, Jr.
referred to me for study and reply your letter to him of June 4, 1986
requesting a list of the opposition members of Batasang Pambansa who
were able to secure a clean loan of P2 million each on guaranty of Mrs.
Imelda Marcos.

My opinion in this regard is that a confidential relationship exists between


the GSIS and all those who borrow from it, whoever they may be; that the
GSIS has a duty to its customers to preserve this confidentiality; and that it
would not be proper for the GSIS to breach this confidentiality unless so
ordered by the courts.

As a violation of this confidentiality may mar the image of the GSIS as a


reputable financial institution, I regret very much that at this time we
cannot respond positively to your request.

Very truly yours,

(Sgd.) MEYNARDO A. TIRO


Deputy General Counsel
[Rollo, p. 40.]

On June 20, 1986, apparently not having yet received the reply of the Government
Service and Insurance System (GSIS) Deputy General Counsel, petitioner Valmonte
wrote respondent another letter, saying that for failure to receive a reply, "(W)e are now
considering ourselves free to do whatever action necessary within the premises to
pursue our desired objective in pursuance of public interest." [Rollo, p. 8.]

On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.

On July 19, 1986, the Daily Express carried a news item reporting that 137 former
members of the defunct interim and regular Batasang Pambansa, including ten (10)
opposition members, were granted housing loans by the GSIS [Rollo, p. 41.]

Separate comments were filed by respondent Belmonte and the Solicitor General. After
petitioners filed a consolidated reply, the petition was given due course and the parties
were required to file their memoranda. The parties having complied, the case was
deemed submitted for decision.

In his comment respondent raises procedural objections to the issuance of a writ of


mandamus, among which is that petitioners have failed to exhaust administrative
remedies.
Respondent claims that actions of the GSIS General Manager are reviewable by the
Board of Trustees of the GSIS. Petitioners, however, did not seek relief from the GSIS
Board of Trustees. It is therefore asserted that since administrative remedies were not
exhausted, then petitioners have no cause of action.

To this objection, petitioners claim that they have raised a purely legal
issue, viz., whether or not they are entitled to the documents sought, by virtue of their
constitutional right to information. Hence, it is argued that this case falls under one of
the exceptions to the principle of exhaustion of administrative remedies.

Among the settled principles in administrative law is that before a party can be allowed
to resort to the courts, he is expected to have exhausted all means of administrative
redress available under the law. The courts for reasons of law, comity and convenience
will not entertain a case unless the available administrative remedies have been
resorted to and the appropriate authorities have been given opportunity to act and
correct the errors committed in the administrative forum. However, the principle of
exhaustion of administrative remedies is subject to settled exceptions, among which is
when only a question of law is involved [Pascual v. Provincial Board, 106 Phil. 466
(1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30, 1971, 40 SCRA 210;
Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA 359.] The issue
raised by petitioners, which requires the interpretation of the scope of the constitutional
right to information, is one which can be passed upon by the regular courts more
competently than the GSIS or its Board of Trustees, involving as it does a purely legal
question. Thus, the exception of this case from the application of the general rule on
exhaustion of administrative remedies is warranted. Having disposed of this procedural
issue, We now address ourselves to the issue of whether or not mandamus hes to
compel respondent to perform the acts sought by petitioners to be done, in pursuance
of their right to information.

We shall deal first with the second and third alternative acts sought to be done, both of
which involve the issue of whether or not petitioners are entitled to access to the
documents evidencing loans granted by the GSIS.

This is not the first time that the Court is confronted with a controversy directly involving
the constitutional right to information. In Tañada v. Tuvera, G.R. No. 63915, April
24,1985, 136 SCRA 27 and in the recent case of Legaspi v. Civil Service
Commission, G.R. No. 72119, May 29, 1987,150 SCRA 530, the Court upheld the
people's constitutional right to be informed of matters of public interest and ordered the
government agencies concerned to act as prayed for by the petitioners.

The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:

The right of the people to information on matters of public concern shall be


recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law.

The right of access to information was also recognized in the 1973 Constitution, Art. IV
Sec. 6 of which provided:

The right of the people to information on 'matters of public concern shall


be recognized. Access to official records, and to documents and papers
pertaining to official acts, transactions, or decisions, shall be afforded the
citizen subject to such limitations as may be provided by law.
An informed citizenry with access to the diverse currents in political, moral and artistic
thought and data relative to them, and the free exchange of ideas and discussion of
issues thereon, is vital to the democratic government envisioned under our Constitution.
The cornerstone of this republican system of government is delegation of power by the
people to the State. In this system, governmental agencies and institutions operate
within the limits of the authority conferred by the people. Denied access to information
on the inner workings of government, the citizenry can become prey to the whims and
caprices of those to whom the power had been delegated. The postulate of public office
as a public trust, institutionalized in the Constitution (in Art. XI, Sec. 1) to protect the
people from abuse of governmental power, would certainly be were empty words if
access to such information of public concern is denied, except under limitations
prescribed by implementing legislation adopted pursuant to the Constitution.

Petitioners are practitioners in media. As such, they have both the right to gather and
the obligation to check the accuracy of information the disseminate. For them, the
freedom of the press and of speech is not only critical, but vital to the exercise of their
professions. The right of access to information ensures that these freedoms are not
rendered nugatory by the government's monopolizing pertinent information. For an
essential element of these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest of the State
that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the people's will. Yet, this open
dialogue can be effective only to the extent that the citizenry is informed and thus able
to formulate its will intelligently. Only when the participants in the discussion are aware
of the issues and have access to information relating thereto can such bear fruit.

The right to information is an essential premise of a meaningful right to speech and


expression. But this is not to say that the right to information is merely an adjunct of and
therefore restricted in application by the exercise of the freedoms of speech and of the
press. Far from it. The right to information goes hand-in-hand with the constitutional
policies of full public disclosure * and honesty in the public service. ** It is meant to
enhance the widening role of the citizenry in governmental decision-making as well as
in checking abuse in government.

Yet, like all the constitutional guarantees, the right to information is not absolute. As
stated in Legaspi, the people's right to information is limited to "matters of public
concern," and is further "subject to such limitations as may be provided by law."
Similarly, the State's policy of full disclosure is limited to "transactions involving public
interest," and is "subject to reasonable conditions prescribed by law."

Hence, before mandamus may issue, it must be clear that the information sought is of
"public interest" or "public concern," and is not exempted by law from the operation of
the constitutional guarantee [Legazpi v. Civil Service Commission, supra, at p. 542.]

The Court has always grappled with the meanings of the terms "public interest" and
"public concern". As observed in Legazpi:

In determining whether or not a particular information is of public concern


there is no rigid test which can be applied. "Public concern" like "public
interest" is a term that eludes exact definition. Both terms embrace a
broad spectrum of subjects which the public may want to know, either
because these directly affect their lives, or simply because such matters
naturally arouse the interest of an ordinary citezen. In the final analysis, it
is for the courts to determine on a case by case basis whether the matter
at issue is of interest or importance, as it relates to or affects the public.
[Ibid. at p. 541]
In the Tañada case the public concern deemed covered by the constitutional right to
information was the need for adequate notice to the public of the various laws which are
to regulate the actions and conduct of citezens. In Legaspi, it was the "legitimate
concern of citezensof ensure that government positions requiring civil service eligibility
are occupied only by persons who are eligibles" [Supra at p. 539.]

The information sought by petitioners in this case is the truth of reports that certain
Members of the Batasang Pambansa belonging to the opposition were able to secure
"clean" loans from the GSIS immediately before the February 7, 1986 election through
the intercession of th eformer First Lady, Mrs. Imelda Marcos.

The GSIS is a trustee of contributions from the government and its employees and the
administrator of various insurance programs for the benefit of the latter. Undeniably, its
funds assume a public character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as
amended (the Revised Government Service Insurance Act of 1977), provide for annual
appropriations to pay the contributions, premiums, interest and other amounts payable
to GSIS by the government, as employer, as well as the obligations which the Republic
of the Philippines assumes or guarantees to pay. Considering the nature of its funds,
the GSIS is expected to manage its resources with utmost prudence and in strict
compliance with the pertinent laws or rules and regulations. Thus, one of the reasons
that prompted the revision of the old GSIS law (C.A. No. 186, as amended) was the
necessity "to preserve at all times the actuarial solvency of the funds administered by
the System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent
himself admits, the GSIS "is not supposed to grant 'clean loans.'" [Comment, p. 8.] It is
therefore the legitimate concern of the public to ensure that these funds are managed
properly with the end in view of maximizing the benefits that accrue to the insured
government employees. Moreover, the supposed borrowers were Members of the
defunct Batasang Pambansa who themselves appropriated funds for the GSIS and
were therefore expected to be the first to see to it that the GSIS performed its tasks with
the greatest degree of fidelity and that an its transactions were above board.

In sum, the public nature of the loanable funds of the GSIS and the public office held by
the alleged borrowers make the information sought clearly a matter of public interest
and concern.

A second requisite must be met before the right to information may be enforced through
mandamus proceedings, viz., that the information sought must not be among those
excluded by law.

Respondent maintains that a confidential relationship exists between the GSIS and its
borrowers. It is argued that a policy of confidentiality restricts the indiscriminate
dissemination of information.

Yet, respondent has failed to cite any law granting the GSIS the privilege of
confidentiality as regards the documents subject of this petition. His position is
apparently based merely on considerations of policy. The judiciary does not settle policy
issues. The Court can only declare what the law is, and not what the law should be.
Under our system of government, policy issues are within the domain of the political
branches of the government, and of the people themselves as the repository of all State
power.

Respondent however contends that in view of the right to privacy which is equally
protected by the Constitution and by existing laws, the documents evidencing loan
transactions of the GSIS must be deemed outside the ambit of the right to information.
There can be no doubt that right to privacy is constitutionally protected. In the landmark
case of Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking
through then Mr. Justice Fernando, stated:

... The right to privacy as such is accorded recognition independently of its


identification with liberty; in itself, it is fully deserving of constitutional
protection. The language of Prof. Emerson is particularly apt: "The
concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life
of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. UItimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of the absolute. state, In
contrast, a system of limited government safeguards a private sector,
which belongs to the individual, firmly distinguishing it from the public
sector, which the state can control. Protection of this private sector —
protection, in other words, of the dignity and integrity of the individual —
has become increasingly important as modem society has developed. All
the forces of technological age — industrialization, urbanization, and
organization — operate to narrow the area of privacy and facilitate
intrusion into it. In modern terms, the capacity to maintain and support this
enclave of private life marks the difference between a democratic and a
totalitarian society." [at pp. 444-445.]

When the information requested from the government intrudes into the privacy of a
citizen, a potential conflict between the rights to information and to privacy may arise.
However, the competing interests of these rights need not be resolved in this case.
Apparent from the above-quoted statement of the Court in Morfe is that the right to
privacy belongs to the individual in his private capacity, and not to public and
governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical
entities like the GSIS. As held in the case of Vassar College v. Loose Wills Biscuit
Co. [197 F. 982 (1912)], a corporation has no right of privacy in its name since the entire
basis of the right to privacy is an injury to the feelings and sensibilities of the party and a
corporation would have no such ground for relief.

Neither can the GSIS through its General Manager, the respondent, invoke the right to
privacy of its borrowers. The right is purely personal in nature [Cf. Atkinson v. John
Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis,
147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence may be invoked only by the
person whose privacy is claimed to be violated.

It may be observed, however, that in the instant case, the concerned borrowers
themselves may not succeed if they choose to invoke their right to privacy, considering
the public offices they were holding at the time the loans were alleged to have been
granted. It cannot be denied that because of the interest they generate and their
newsworthiness, public figures, most especially those holding responsible positions in
government, enjoy a more limited right to privacy as compared to ordinary individuals,
their actions being subject to closer public scrutiny [Cf.Ayer Productions Pty. Ltd. v.
Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen v. Marx, 211 P.
2d 321 (1949).]

Respondent next asserts that the documents evidencing the loan transactions of the
GSIS are private in nature and hence, are not covered by the Constitutional right to
information on matters of public concern which guarantees "(a)ccess to official records,
and to documents, and papers pertaining to official acts, transactions, or decisions"
only.
It is argued that the records of the GSIS, a government corporation performing
proprietary functions, are outside the coverage of the people's right of access
to official records.

It is further contended that since the loan function of the GSIS is merely incidental to its
insurance function, then its loan transactions are not covered by the constitutional policy
of full public disclosure and the right to information which is applicable only to "official"
transactions.

First of all, the "constituent — ministrant" dichotomy characterizing government function


has long been repudiated. In ACCFA v. Confederation of Unions and Government
Corporations and Offices (G.R. Nos. L-21484 and L-23605, November 29, 1969, 30
SCRA 6441, the Court said that the government, whether carrying out its sovereign
attributes or running some business, discharges the same function of service to the
people.

Consequently, that the GSIS, in granting the loans, was exercising a proprietary
function would not justify the exclusion of the transactions from the coverage and scope
of the right to information.

Moreover, the intent of the members of the Constitutional Commission of 1986, to


include government-owned and controlled corporations and transactions entered into by
them within the coverage of the State policy of fun public disclosure is manifest from the
records of the proceedings:

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Colayco).

Commissioner Suarez is recognized.

MR. SUAREZ. Thank you. May I ask the Gentleman a few question?

MR. OPLE. Very gladly.

MR. SUAREZ. Thank you.

When we declare a "policy of full public disclosure of all its


transactions" — referring to the transactions of the State —
and when we say the "State" which I suppose would include
all of the various agencies, departments, ministries and
instrumentalities of the government....

MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer.

MR. SUAREZ. Including government-owned and controlled corporations.

MR. OPLE. That is correct, Mr. Presiding Officer.

MR. SUAREZ. And when we say "transactions"


which should be distinguished from contracts,
agreements, or treaties or whatever, does the
Gentleman refer to the steps leading to the
consummation of the contract, or does he refer
to the contract itself?
MR. OPLE. The "transactions" used here I
suppose is generic and, therefore, it can cover
both steps leading to a contract, and already a
consummated contract, Mr. Presiding Officer.

MR. SUAREZ. This contemplates inclusion of


negotiations leading to the consummation of
the transaction.

MR. OPLE. Yes, subject only to reasonable


safeguards on the national interest.

MR. SUAREZ. Thank you. [V Record of the


Constitutional Commission 24-25.] (Emphasis
supplied.)

Considering the intent of the framers of the Constitution which, though not binding upon
the Court, are nevertheless persuasive, and considering further that government-owned
and controlled corporations, whether performing proprietary or governmental functions
are accountable to the people, the Court is convinced that transactions entered into by
the GSIS, a government-controlled corporation created by special legislation are within
the ambit of the people's right to be informed pursuant to the constitutional policy of
transparency in government dealings.

In fine, petitioners are entitled to access to the documents evidencing loans granted by
the GSIS, subject to reasonable regulations that the latter may promulgate relating to
the manner and hours of examination, to the end that damage to or loss of the records
may be avoided, that undue interference with the duties of the custodian of the records
may be prevented and that the right of other persons entitled to inspect the records may
be insured [Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v.
Ozaeta, 80 Phil. 383, 387.] The petition, as to the second and third alternative acts
sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang Pambansa members
belonging to the UNIDO and PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the intercession/marginal note of the
then First Lady Imelda Marcos."

Although citizens are afforded the right to information and, pursuant thereto, are entitled
to "access to official records," the Constitution does not accord them a right to compel
custodians of official records to prepare lists, abstracts, summaries and the like in their
desire to acquire information on matters of public concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant
has a well-defined, clear and certain legal right to the thing demanded and that it is the
imperative duty of defendant to perform the act required. The corresponding duty of the
respondent to perform the required act must be clear and specific [Lemi v. Valencia,
G.R. No. L-20768, November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-
28344, August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet this
standard, there being no duty on the part of respondent to prepare the list requested.

WHEREFORE, the instant petition is hereby granted and respondent General Manager
of the Government Service Insurance System is ORDERED to allow petitioners access
to documents and records evidencing loans granted to Members of the former Batasang
Pambansa, as petitioners may specify, subject to reasonable regulations as to the time
and manner of inspection, not incompatible with this decision, as the GSIS may deem
necessary.

SO ORDERED.

G.R. No. L-72119 May 29, 1987

VALENTIN L. LEGASPI, petitioner,


vs.
CIVIL SERVICE COMMISSION, respondent.

CORTES, J.:

The fundamental right of the people to information on matters of public concern is


invoked in this special civil action for mandamus instituted by petitioner Valentin L.
Legaspi against the Civil Service Commission. The respondent had earlier denied
Legaspi's request for information on the civil service eligibilities of certain persons
employed as sanitarians in the Health Department of Cebu City. These government
employees, Julian Sibonghanoy and Mariano Agas, had allegedly represented
themselves as civil service eligibles who passed the civil service examinations for
sanitarians.

Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and
Mariano Agas, is guaranteed by the Constitution, and that he has no other plain, speedy
and adequate remedy to acquire the information, petitioner prays for the issuance of the
extraordinary writ of mandamus to compel the respondent Commission to disclose said
information.

This is not the first tune that the writ of mandamus is sought to enforce the fundamental
right to information. The same remedy was resorted to in the case of Tanada et. al. vs.
Tuvera et. al., (G.R. No. L-63915, April 24,1985,136 SCRA 27) wherein the people's
right to be informed under the 1973 Constitution (Article IV, Section 6) was invoked in
order to compel the publication in the Official Gazette of various presidential decrees,
letters of instructions and other presidential issuances. Prior to the recognition of the
right in said Constitution the statutory right to information provided for in the Land
Registration Act (Section 56, Act 496, as amended) was claimed by a newspaper editor
in another mandamus proceeding, this time to demand access to the records of the
Register of Deeds for the purpose of gathering data on real estate transactions involving
aliens (Subido vs. Ozaeta, 80 Phil. 383 [1948]).

The constitutional right to information on matters of public concern first gained


recognition in the Bill of Rights, Article IV, of the 1973 Constitution, which states:

Sec. 6. The right of the people to information on matters of public concern


shall be recognized. Access to official records, and to documents and
papers pertaining to official acts, transactions, or decisions, shall be
afforded the citizen subject to such limitations as may be provided by law.

The foregoing provision has been retained and the right therein provided amplified in
Article III, Sec. 7 of the 1987 Constitution with the addition of the phrase, "as well as to
government research data used as basis for policy development." The new provision
reads:

The right of the people to information on matters of public concern shall be


recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis. for policy development, shall be
afforded the citizen, subject to such stations as may be provided by law.

These constitutional provisions are self-executing. They supply the rules by means of
which the right to information may be enjoyed (Cooley, A Treatise on the Constitutional
Limitations 167 [1927]) by guaranteeing the right and mandating the duty to afford
access to sources of information. Hence, the fundamental right therein recognized may
be asserted by the people upon the ratification of the constitution without need for any
ancillary act of the Legislature. (Id. at, p. 165) What may be provided for by the
Legislature are reasonable conditions and limitations upon the access to be afforded
which must, of necessity, be consistent with the declared State policy of full public
disclosure of all transactions involving public interest (Constitution, Art. 11, Sec. 28).
However, it cannot be overemphasized that whatever limitation may be prescribed by
the Legislature, the right and the duty under Art. III Sec. 7 have become operative and
enforceable by virtue of the adoption of the New Charter. Therefore, the right may be
properly invoked in a mandamus proceeding such as this one.

The Solicitor General interposes procedural objections to Our giving due course to this
Petition. He challenges the petitioner's standing to sue upon the ground that the latter
does not possess any clear legal right to be informed of the civil service eligibilities of
the government employees concerned. He calls attention to the alleged failure of the
petitioner to show his actual interest in securing this particular information. He further
argues that there is no ministerial duty on the part of the Commission to furnish the
petitioner with the information he seeks.

1. To be given due course, a Petition for mandamus must have been instituted by a
party aggrieved by the alleged inaction of any tribunal, corporation, board or person
which unlawfully excludes said party from the enjoyment of a legal right. (Ant;-Chinese
League of the Philippines vs. Felix, 77 Phil. 1012 [1947]). The petitioner in every case
must therefore be an "aggrieved party" in the sense that he possesses a clear legal
right to be enforced and a direct interest in the duty or act to be performed.

In the case before Us, the respondent takes issue on the personality of the petitioner to
bring this suit. It is asserted that, the instant Petition is bereft of any allegation of
Legaspi's actual interest in the civil service eligibilities of Julian Sibonghanoy and
Mariano Agas, At most there is a vague reference to an unnamed client in whose behalf
he had allegedly acted when he made inquiries on the subject (Petition, Rollo, p. 3).

But what is clear upon the face of the Petition is that the petitioner has firmly anchored
his case upon the right of the people to information on matters of public concern, which,
by its very nature, is a public right. It has been held that:

* * * when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people are
regarded as the real party in interest and the relator at whose instigation
the proceedings are instituted need not show that he has any legal or
special interest in the result, it being sufficient to show that he is a citizen
and as such interested in the execution of the laws * * * (Tanada et. al. vs.
Tuvera, et. al., G.R. No. L- 63915, April 24, 1985, 136 SCRA 27, 36).

From the foregoing, it becomes apparent that when a mandamus proceeding involves
the assertion of a public right, the requirement of personal interest is satisfied by the
mere fact that the petitioner is a citizen, and therefore, part of the general "public" which
possesses the right.
The Court had opportunity to define the word "public" in the Subido case, supra, when it
held that even those who have no direct or tangible interest in any real estate
transaction are part of the "public" to whom "(a)ll records relating to registered lands in
the Office of the Register of Deeds shall be open * * *" (Sec. 56, Act No. 496, as
amended). In the words of the Court:

* * * "Public" is a comprehensive, all-inclusive term. Properly construed, it


embraces every person. To say that only those who have a present and
existing interest of a pecuniary character in the particular information
sought are given the right of inspection is to make an unwarranted
distinction. *** (Subido vs. Ozaeta, supra at p. 387).

The petitioner, being a citizen who, as such is clothed with personality to seek redress
for the alleged obstruction of the exercise of the public right. We find no cogent reason
to deny his standing to bring the present suit.

2. For every right of the people recognized as fundamental, there lies a corresponding
duty on the part of those who govern, to respect and protect that right. That is the very
essence of the Bill of Rights in a constitutional regime. Only governments operating
under fundamental rules defining the limits of their power so as to shield individual rights
against its arbitrary exercise can properly claim to be constitutional (Cooley, supra, at p.
5). Without a government's acceptance of the limitations imposed upon it by the
Constitution in order to uphold individual liberties, without an acknowledgment on its
part of those duties exacted by the rights pertaining to the citizens, the Bill of Rights
becomes a sophistry, and liberty, the ultimate illusion.

In recognizing the people's right to be informed, both the 1973 Constitution and the New
Charter expressly mandate the duty of the State and its agents to afford access to
official records, documents, papers and in addition, government research data used as
basis for policy development, subject to such limitations as may be provided by law. The
guarantee has been further enhanced in the New Constitution with the adoption of a
policy of full public disclosure, this time "subject to reasonable conditions prescribed by
law," in Article 11, Section 28 thereof, to wit:

Subject to reasonable conditions prescribed by law, the State adopts and


implements a policy of full public disclosure of all its transactions involving
public interest. (Art. 11, Sec. 28).

In the Tanada case, supra, the constitutional guarantee was bolstered by what this
Court declared as an imperative duty of the government officials concerned to publish
all important legislative acts and resolutions of a public nature as well as all executive
orders and proclamations of general applicability. We granted mandamus in said case,
and in the process, We found occasion to expound briefly on the nature of said duty:

* * * That duty must be enforced if the Constitutional right of the people to


be informed on matters of public concern is to be given substance and
reality. The law itself makes a list of what should be published in the
Official Gazette. Such listing, to our mind, leaves respondents with no
discretion whatsoever as to what must be in included or excluded from
such publication. (Tanada v. Tuvera, supra, at 39). (Emphasis supplied).

The absence of discretion on the part of government agencia es in allowing the


examination of public records, specifically, the records in the Office of the Register of
Deeds, is emphasized in Subido vs. Ozaeta, supra:

Except, perhaps when it is clear that the purpose of the examination is


unlawful, or sheer, idle curiosity, we do not believe it is the duty under the
law of registration officers to concern themselves with the motives,
reasons, and objects of the person seeking access to the records. It is not
their prerogative to see that the information which the records contain is
not flaunted before public gaze, or that scandal is not made of it. If it be
wrong to publish the contents of the records, it is the legislature and not
the officials having custody thereof which is called upon to devise a
remedy. *** (Subido v. Ozaeta, supra at 388). (Emphasis supplied).

It is clear from the foregoing pronouncements of this Court that government agencies
are without discretion in refusing disclosure of, or access to, information of public
concern. This is not to lose sight of the reasonable regulations which may be imposed
by said agencies in custody of public records on the manner in which the right to
information may be exercised by the public. In the Subido case, We recognized the
authority of the Register of Deeds to regulate the manner in which persons desiring to
do so, may inspect, examine or copy records relating to registered lands. However, the
regulations which the Register of Deeds may promulgate are confined to:

* * * prescribing the manner and hours of examination to the end that


damage to or loss of, the records may be avoided, that undue interference
with the duties of the custodian of the books and documents and other
employees may be prevented, that the right of other persons entitled to
make inspection may be insured * * * (Subido vs. Ozaeta, 80 Phil. 383,
387)

Applying the Subido ruling by analogy, We recognized a similar authority in a municipal


judge, to regulate the manner of inspection by the public of criminal docket records in
the case of Baldoza vs. Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA
14). Said administrative case was filed against the respondent judge for his alleged
refusal to allow examination of the criminal docket records in his sala. Upon a finding by
the Investigating Judge that the respondent had allowed the complainant to open and
view the subject records, We absolved the respondent. In effect, We have also held that
the rules and conditions imposed by him upon the manner of examining the public
records were reasonable.

In both the Subido and the Baldoza cases, We were emphatic in Our statement that the
authority to regulate the manner of examining public records does not carry with it the
power to prohibit. A distinction has to be made between the discretion to refuse outright
the disclosure of or access to a particular information and the authority to regulate the
manner in which the access is to be afforded. The first is a limitation upon the
availability of access to the information sought, which only the Legislature may impose
(Art. III, Sec. 6, 1987 Constitution). The second pertains to the government agency
charged with the custody of public records. Its authority to regulate access is to be
exercised solely to the end that damage to, or loss of, public records may be avoided,
undue interference with the duties of said agencies may be prevented, and more
importantly, that the exercise of the same constitutional right by other persons shall be
assured (Subido vs. Ozaetal supra).

Thus, while the manner of examining public records may be subject to reasonable
regulation by the government agency in custody thereof, the duty to disclose the
information of public concern, and to afford access to public records cannot be
discretionary on the part of said agencies. Certainly, its performance cannot be made
contingent upon the discretion of such agencies. Otherwise, the enjoyment of the
constitutional right may be rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its performance may be
compelled by a writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the public
right to be enforced and the concomitant duty of the State are unequivocably set forth in
the Constitution. The decisive question on the propriety of the issuance of the writ of
mandamus in this case is, whether the information sought by the petitioner is within the
ambit of the constitutional guarantee.

3. The incorporation in the Constitution of a guarantee of access to information of public


concern is a recognition of the essentiality of the free flow of ideas and information in a
democracy (Baldoza v. Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA
14). In the same way that free discussion enables members of society to cope with the
exigencies of their time (Thornhill vs. Alabama, 310 U.S. 88,102 [1939]), access to
information of general interest aids the people in democratic decision-making (87
Harvard Law Review 1505 [1974]) by giving them a better perspective of the vital issues
confronting the nation.

But the constitutional guarantee to information on matters of public concern is not


absolute. It does not open every door to any and all information. Under the Constitution,
access to official records, papers, etc., are "subject to limitations as may be provided by
law" (Art. III, Sec. 7, second sentence). The law may therefore exempt certain types of
information from public scrutiny, such as those affecting national security (Journal No.
90, September 23, 1986, p. 10; and Journal No. 91, September 24, 1986, p. 32, 1986
Constitutional Commission). It follows that, in every case, the availability of access to a
particular public record must be circumscribed by the nature of the information sought,
i.e., (a) being of public concern or one that involves public interest, and, (b) not being
exempted by law from the operation of the constitutional guarantee. The threshold
question is, therefore, whether or not the information sought is of public interest or
public concern.

a. This question is first addressed to the government agency having custody of the
desired information. However, as already discussed, this does not give the agency
concerned any discretion to grant or deny access. In case of denial of access, the
government agency has the burden of showing that the information requested is not of
public concern, or, if it is of public concern, that the same has been exempted by law
from the operation of the guarantee. To hold otherwise will serve to dilute the
constitutional right. As aptly observed, ". . . the government is in an advantageous
position to marshall and interpret arguments against release . . ." (87 Harvard Law
Review 1511 [1974]). To safeguard the constitutional right, every denial of access by
the government agency concerned is subject to review by the courts, and in the proper
case, access may be compelled by a writ of Mandamus.

In determining whether or not a particular information is of public concern there is no


rigid test which can be applied. "Public concern" like "public interest" is a term that
eludes exact definition. Both terms embrace a broad spectrum of subjects which the
public may want to know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary citizen. In the final
analysis, it is for the courts to determine in a case by case basis whether the matter at
issue is of interest or importance, as it relates to or affects the public.

The public concern invoked in the case of Tanada v. Tuvera, supra, was the need for
adequate notice to the public of the various laws which are to regulate the actions and
conduct of citizens. In Subido vs. Ozaeta, supra, the public concern deemed covered by
the statutory right was the knowledge of those real estate transactions which some
believed to have been registered in violation of the Constitution.

The information sought by the petitioner in this case is the truth of the claim of certain
government employees that they are civil service eligibles for the positions to which they
were appointed. The Constitution expressly declares as a State policy that:
Appointments in the civil service shall be made only according to merit
and fitness to be determined, as far as practicable, and except as to
positions which are policy determining, primarily confidential or highly
technical, by competitive examination. (Art. IX, B, Sec. 2.[2]).

Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of
citizens to ensure that government positions requiring civil service eligibility are
occupied only by persons who are eligibles. Public officers are at all times accountable
to the people even as to their eligibilities for their respective positions.

b. But then, it is not enough that the information sought is of public interest. For
mandamus to lie in a given case, the information must not be among the species
exempted by law from the operation of the constitutional guarantee.

In the instant, case while refusing to confirm or deny the claims of eligibility, the
respondent has failed to cite any provision in the Civil Service Law which would limit the
petitioner's right to know who are, and who are not, civil service eligibles. We take
judicial notice of the fact that the names of those who pass the civil service
examinations, as in bar examinations and licensure examinations for various
professions, are released to the public. Hence, there is nothing secret about one's civil
service eligibility, if actually possessed. Petitioner's request is, therefore, neither
unusual nor unreasonable. And when, as in this case, the government employees
concerned claim to be civil service eligibles, the public, through any citizen, has a right
to verify their professed eligibilities from the Civil Service Commission.

The civil service eligibility of a sanitarian being of public concern, and in the absence of
express limitations under the law upon access to the register of civil service eligibles for
said position, the duty of the respondent Commission to confirm or deny the civil service
eligibility of any person occupying the position becomes imperative. Mandamus,
therefore lies.

WHEREFORE, the Civil Service Commission is ordered to open its register of eligibles
for the position of sanitarian, and to confirm or deny, the civil service eligibility of Julian
Sibonghanoy and Mariano Agas, for said position in the Health Department of Cebu
City, as requested by the petitioner Valentin L. Legaspi.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.

Feliciano, J., is on leave.

TANO VS SOCRATES

DAVIDE, JR., J.:

Petitioners caption their petition as one for "Certiorari, Injunction With Preliminary and
Mandatory Injunction, with Prayer for Temporary Restraining Order" and pray that this
Court: (1) declare as unconstitutional: (a) Ordinance No. 15-92, dated 15 December
1992, of the Sangguniang Panglungsod of Puerto Princesa; (b) Office Order No. 23,
Series of 1993, dated 22 January 1993, issued by Acting City Mayor Amado L. Lucero
of Puerto Princesa City; and (c) Resolution No. 33, Ordinance No. 2, Series of 1993,
dated 19 February 1993, of the Sangguniang Panlalawigan of Palawan; (2) enjoin the
enforcement thereof; and (3) restrain respondents Provincial and City Prosecutors of
Palawan and Puerto Princesa City and Judges of the Regional Trial Courts,
Metropolitan Trial Courts 1 and Municipal Circuit Trial Courts in Palawan from assuming
jurisdiction over and hearing cases concerning the violation of the Ordinances and of
the Office Order.
More appropriately, the petition is, and shall be treated as, a special civil action
for certiorari and prohibition.

The following is petitioners' summary of the factual antecedents giving rise to the
petition:

1. On December 15, 1992, the Sangguniang Panlungsod ng Puerto Princesa City


enacted Ordinance No. 15-92 which took effect on January 1, 1993 entitled: "AN
ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER
OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY
1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES AND FOR OTHER
PURPOSES THEREOF", the full text of which reads as follows:

Sec. 1. Title of the Ordinance. — This Ordinance is entitled: AN


ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND
LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY
1, 1993 TO JANUARY 1, 1998 AND PROVIDING EXEMPTIONS,
PENALTIES AND FOR OTHER PURPOSES THEREOF.

Sec. 2. Purpose, Scope and Coverage. — To effectively free our


City Sea Waters from Cyanide and other Obnoxious substance[s],
and shall cover all persons and/or entities operating within and
outside the City of Puerto Princesa who is are (sic) directly or
indirectly in the business or shipment of live fish and lobster outside
the City.

Sec. 3. Definition of terms. — For purpose of this Ordinance the


following are hereby defined:

A. SEA BASS — A kind of fish under the


family of Centropomidae, better known
as APAHAP;

B. CATFISH — A kind of fish under the


family of Plotosidae, better known as
HITO-HITO;

C. MUDFISH — A kind of fish under the


family of Orphicaphalisae better known
as DALAG;

D. ALL LIVE FISH — All alive, breathing


not necessarily moving of all specie[s]
use[d] for food and for aquarium
purposes.

E. LIVE LOBSTER — Several relatively,


large marine crusteceans [sic] of the
genus Homarus that are alive and
breathing not necessarily moving.

Sec. 4. It shall be unlawful [for] any person or any business


enterprise or company to ship out from Puerto Princesa City to any
point of destination either via aircraft or seacraft of any live fish and
lobster except SEA BASS, CATFISH, MUDFISH, AND MILKFISH
FRIES.
Sec. 5. Penalty Clause. — Any person/s and or business entity
violating this Ordinance shall be penalized with a fine of not more
than P5,000.00 or imprisonment of not more than twelve (12)
months, cancellation of their permit to do business in the City of
Puerto Princesa or all of the herein stated penalties, upon the
discretion of the court.

Sec. 6. If the owner and/or operator of the establishment found


violating the provisions of this ordinance is a corporation or a
partnership, the penalty prescribed in Section 5 hereof shall be
imposed upon its president and/or General Manager or Managing
Partner and/or Manager, as the case maybe [sic].

Sec. 7. Any existing ordinance or any provision of any ordinance


inconsistent to [sic] this ordinance is deemed repealed.

Sec. 8. This Ordinance shall take effect on January 1, 1993.

SO ORDAINED.

xxx xxx xxx

2. To implement said city ordinance, then Acting City Mayor Amado L. Lucero
issued Office Order No. 23, Series of 1993 dated January 22, 1993 which reads
as follows:

In the interest of public service and for purposes of City Ordinance No. PD 426-
14-74, otherwise known as "AN ORDINANCE REQUIRING ANY PERSON
ENGAGED OR INTENDING TO ENGAGE IN ANY BUSINESS, TRADE,
OCCUPATION, CALLING OR PROFESSION OR HAVING IN HIS
POSSESSION ANY OF THE ARTICLES FOR WHICH A PERMIT IS REQUIRED
TO BE HAD, TO OBTAIN FIRST A MAYOR'S PERMIT" and "City Ordinance No.
15-92, AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND
LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO
JANUARY 1, 1998, you are hereby authorized and directed to check or conduct
necessary inspections on cargoes containing live fish and lobster being shipped
out from the Puerto Princesa Airport, Puerto Princesa Wharf or at any port within
the jurisdiction of the City to any point of destinations [sic] either via aircraft or
seacraft.

The purpose of the inspection is to ascertain whether the shipper possessed the
required Mayor's Permit issued by this Office and the shipment is covered by
invoice or clearance issued by the local office of the Bureau of Fisheries and
Aquatic Resources and as to compliance with all other existing rules and
regulations on the matter.

Any cargo containing live fish and lobster without the required documents as
stated herein must be held for proper disposition.

In the pursuit of this Order, you are hereby authorized to coordinate with the PAL
Manager, the PPA Manager, the local PNP Station and other offices concerned
for the needed support and cooperation. Further, that the usual courtesy and
diplomacy must be observed at all times in the conduct of the inspection.

Please be guided accordingly.

xxx xxx xxx


3. On February 19, 1993, the Sangguniang Panlalawigan, Provincial Government
of Palawan enacted Resolution No. 33 entitled: "A RESOLUTION PROHIBITING
THE CATCHING, GATHERING, POSSESSING, BUYING, SELLING AND
SHIPMENT OF LIVE MARINE CORAL DWELLING AQUATIC ORGANISMS, TO
WIT: FAMILY: SCARIDAE (MAMENG), EPINE PHELUS
FASCIATUS (SUNO). CROMILEPTES ALTIVELIS(PANTHER OR SENORITA),
LOBSTER BELOW 200 GRAMS AND SPAWNING, TRIDACNA
GIGAS(TAKLOBO), PINCTADA MARGARITEFERA (MOTHER PEARL,
OYSTERS, GIANT CLAMS AND OTHER SPECIES), PENAEUS
MONODON (TIGER PRAWN-BREEDER SIZE OR MOTHER), EPINEPHELUS
SUILLUS (LOBA OR GREEN GROUPER) AND
FAMILY: BALISTIDAE (TROPICAL AQUARIUM FISHES) FOR A PERIOD FIVE
(5) YEARS IN AND COMING FROM PALAWAN WATERS", the full text of which
reads as follows:

WHEREAS, scientific and factual researches [sic] and studies


disclose that only five (5) percent of the corals of our province
remain to be in excellent condition as [a] habitat of marine coral
dwelling aquatic organisms;

WHEREAS, it cannot be gainsaid that the destruction and


devastation of the corals of our province were principally due to
illegal fishing activities like dynamite fishing, sodium cyanide
fishing, use of other obnoxious substances and other related
activities;

WHEREAS, there is an imperative and urgent need to protect and


preserve the existence of the remaining excellent corals and allow
the devastated ones to reinvigorate and regenerate themselves into
vitality within the span of five (5) years;

WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of the [sic] R.A. 7160


otherwise known as the Local Government Code of 1991
empowers the Sangguniang Panlalawigan to protect the
environment and impose appropriate penalties [upon] acts which
endanger the environment such as dynamite fishing and other
forms of destructive fishing, among others.

NOW, THEREFORE, on motion by Kagawad Nelson P. Peneyra


and upon unanimous decision of all the members present;

Be it resolved as it is hereby resolved, to approve Resolution No.


33, Series of 1993 of the Sangguniang Panlalawigan and to enact
Ordinance No. 2 for the purpose, to wit:

ORDINANCE NO. 2
Series of 1993

BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN IN SESSION


ASSEMBLED:

Sec. 1. TITLE — This Ordinance shall be known as an "Ordinance


Prohibiting the catching, gathering, possessing, buying, selling and
shipment of live marine coral dwelling aquatic organisms, to wit: 1.
Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno) 3.
Cromileptes altivelis (Panther or Senorita), lobster below 200 grams
and spawning), 4. Tridacna Gigas (Taklobo), 5. Pinctada
Margaretefera (Mother Pearl, Oysters, Giant Clams and other
species), 6. Penaeus Monodon (Tiger Prawn-breeder size or
mother), 7. Epinephelus Suillus (Loba or Green Grouper) and 8.
Family: Balistidae (T[r]opical Aquarium Fishes) for a period of five
(5) years in and coming from Palawan Waters.

Sec. II. PRELIMINARY CONSIDERATIONS

1. Sec. 2-A (Rep. Act 7160). It is hereby declared, the policy of the
state that the territorial and political subdivisions of the State shall
enjoy genuine and meaningful local autonomy to enable them to
attain their fullest development as self-reliant communities and
make them more effective partners in the attainment of national
goals. Toward this end, the State shall provide for [a] more
responsive and accountable local government structure instituted
through a system of decentralization whereby local government
units shall be given more powers, authority, responsibilities and
resources.

2. Sec. 5-A (R.A. 7160). Any provision on a power of [a] local


Government Unit shall be liberally interpreted in its favor, and in
case of doubt, any question thereon shall be resolved in favor of
devolution of powers and of the lower government units. "Any fair
and reasonable doubts as to the existence of the power shall be
interpreted in favor of the Local Government Unit concerned."

3. Sec. 5-C (R.A. 7160). The general welfare provisions in this


Code shall be liberally interpreted to give more powers to local
government units in accelerating economic development and
upgrading the quality of life for the people in the community.

4. Sec. 16 (R.A. 7160). General Welfare. — Every local


government unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance;
and those which are essential to the promotion of the general
welfare.

Sec. III. DECLARATION OF POLICY. — It is hereby declared to be


the policy of the Province of Palawan to protect and conserve the
marine resources of Palawan not only for the greatest good of the
majority of the present generation but with [the] proper perspective
and consideration of [sic] their prosperity, and to attain this end, the
Sangguniang Panlalawigan henceforth declares that is (sic) shall
be unlawful for any person or any business entity to engage in
catching, gathering, possessing, buying, selling and shipment of
live marine coral dwelling aquatic organisms as enumerated in
Section 1 hereof in and coming out of Palawan Waters for a period
of five (5) years;

Sec. IV. PENALTY CLAUSE. — Any person and/or business entity


violating this Ordinance shall be penalized with a fine of not more
than Five Thousand Pesos (P5,000.00), Philippine Currency,
and/or imprisonment of six (6) months to twelve (12) months and
confiscation and forfeiture of paraphernalias [sic] and equipment in
favor of the government at the discretion of the Court;
Sec. V. SEPARABILITY CLAUSE. — If for any reason, a Section or
provision of this Ordinance shall be held as unconditional [sic] or
invalid, it shall not affect the other provisions hereof.

Sec. VI. REPEALING CLAUSE. — Any existing Ordinance or a


provision of any ordinance inconsistent herewith is deemed
modified, amended or repealed.

Sec. VII. EFFECTIVITY — This Ordinance shall take effect ten (10)
days after its publication.

SO ORDAINED.

xxx xxx xxx

4. The respondents implemented the said ordinances, Annexes "A" and "C"
hereof thereby depriving all the fishermen of the whole province of Palawan and
the City of Puerto Princesa of their only means of livelihood and the petitioners
Airline Shippers Association of Palawan and other marine merchants from
performing their lawful occupation and trade;

5. Petitioners Alfredo Tano, Baldomero Tano, Teocenes Midello, Angel de Mesa,


Eulogio Tremocha, and Felipe Ongonion, Jr. were even charged criminally under
criminal case no. 93-05-C in the 1st Municipal Circuit Trial Court of Cuyo-
Agutaya-Magsaysay, an original carbon copy of the criminal complaint dated
April 12, 1993 is hereto attached as Annex "D"; while xerox copies are attached
as Annex "D" to the copies of the petition;

6. Petitioners Robert Lim and Virginia Lim, on the other hand, were charged by
the respondent PNP with the respondent City Prosecutor of Puerto Princess City,
a xerox copy of the complaint is hereto attached as Annex "E";

Without seeking redress from the concerned local government units, prosecutor's office
and courts, petitioners directly invoked our original jurisdiction by filing this petition on 4
June 1993. In sum, petitioners contend that:

First, the Ordinances deprived them of due process of law, their livelihood, and unduly
restricted them from the practice of their trade, in violation of Section 2, Article XII and
Sections 2 and 7 of Article XIII of the 1987 Constitution.

Second, Office Order No. 23 contained no regulation nor condition under which the
Mayor's permit could be granted or denied; in other words, the Mayor had the absolute
authority to determine whether or not to issue the permit.

Third, as Ordinance No. 2 of the Province of Palawan "altogether prohibited the


catching, gathering, possession, buying, selling and shipping of live marine coral
dwelling organisms, without any distinction whether it was caught or gathered through
lawful fishing method," the Ordinance took away the right of petitioners-fishermen to
earn their livelihood in lawful ways; and insofar as petitioners-members of Airline
Shippers Association are concerned, they were unduly prevented from pursuing their
vocation and entering "into contracts which are proper, necessary, and essential to
carry out their business endeavors to a successful conclusion."

Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan is null and void, the
criminal cases based thereon against petitioners Tano and the others have to be
dismissed.
In the Resolution of 15 June 1993 we required respondents to comment on the petition,
and furnished the Office of the Solicitor General with a copy thereof.

In their comment filed on 13 August 1993, public respondents Governor Socrates and
Members of the Sangguniang Panlalawigan of Palawan defended the validity of
Ordinance No. 2, Series of 1993, as a valid exercise of the Provincial Government's
power under the general welfare clause (Section 16 of the Local Government Code of
1991 [hereafter, LGC]), and its specific power to protect the environment and impose
appropriate penalties for acts which endanger the environment, such as dynamite
fishing and other forms of destructive fishing under Section 447 (a) (1) (vi), Section 458
(a) (1) (vi), and Section 468 (a) (1) (vi), of the LGC. They claimed that in the exercise of
such powers, the Province of Palawan had "the right and responsibility . . . to insure that
the remaining coral reefs, where fish dwells [sic], within its territory remain healthy for
the future generation." The Ordinance, they further asserted, covered only live marine
coral dwelling aquatic organisms which were enumerated in the ordinance and excluded
other kinds of live marine aquatic organisms not dwelling in coral reefs; besides the
prohibition was for only five (5) years to protect and preserve the pristine coral and allow
those damaged to regenerate.

Aforementioned respondents likewise maintained that there was no violation of the due
process and equal protection clauses of the Constitution. As to the former, public
hearings were conducted before the enactment of the Ordinance which, undoubtedly,
had a lawful purpose and employed reasonable means; while as to the latter, a
substantial distinction existed "between a fisherman who catches live fish with the
intention of selling it live, and a fisherman who catches live fish with no intention at all of
selling it live," i.e., "the former uses sodium cyanide while the latter does not." Further,
the Ordinance applied equally to all those belonging to one class.

On 25 October 1993 petitioners filed an Urgent Plea for the Immediate Issuance of a
Temporary Restraining Order, claiming that despite the pendency of this case, Branch
50 of the Regional Trial Court of Palawan was bent on proceeding with Criminal Case
No. 11223 against petitioners Danilo Tano, Alfredo Tano, Eulogio Tremocha, Romualdo
Tano, Baldomero Tano, Andres Linijan and Angel de Mesa for violation of Ordinance
No. 2 of the Sangguniang Panlalawigan of Palawan. Acting on said plea, we issued on
11 November 1993 a temporary restraining order directing Judge Angel Miclat of said
court to cease and desist from proceeding with the arraignment and pre-trial of Criminal
Case No. 11223.

On 12 July 1994, we excused the Office of the Solicitor General from filing a comment,
considering that as claimed by said office in its Manifestation of 28 June 1994,
respondents were already represented by counsel.

The rest of the respondents did not file any comment on the petition.

In the resolution of 15 September 1994, we resolved to consider the comment on the


petition as the Answer, gave due course to the petition and required the parties to
submit their respective memoranda. 2

On 22 April 1997 we ordered impleaded as party respondents the Department of


Agriculture and the Bureau of Fisheries and Aquatic Resources and required the Office
of the Solicitor General to comment on their behalf. But in light of the latter's motion of 9
July 1997 for an extension of time to file the comment which would only result in further
delay, we dispensed with said comment.

After due deliberation on the pleadings filed, we resolved to dismiss this petition for
want of merit, and on 22 July 1997, assigned it to the ponente to write the opinion of the
Court.
I

There are actually two sets of petitioners in this case. The first is composed of Alfredo
Tano, Baldomero Tano, Danilo Tano, Romualdo Tano, Teocenes Midello, Angel de
Mesa, Eulogio Tremocha, Felipe Ongonion, Jr., Andres Linijan, and Felimon de Mesa,
who were criminally charged with violating Sangguniang Panlalawigan Resolution No.
33 and Ordinance No. 2, Series of 1993, of the Province of Palawan, in Criminal Case
No. 93-05-C of the 1st Municipal Circuit Trial Court (MCTC) of Palawan; 3 and Robert
Lim and Virginia Lim who were charged with violating City Ordinance No. 15-92 of
Puerto Princesa City and Ordinance No. 2, Series of 1993, of the Province of Palawan
before the Office of the City Prosecutor of Puerto Princesa. 4 All of them, with the
exception of Teocenes Midello, Felipe Ongonion, Jr., Felimon de Mesa, Robert Lim and
Virginia Lim, are likewise the accused in Criminal Case No. 11223 for the violation of
Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan, pending before Branch
50 of the Regional Trial Court of Palawan. 5

The second set of petitioners is composed of the rest of the petitioners numbering
seventy-seven (77), all of whom, except the Airline Shippers Association of Palawan —
an alleged private association of several marine merchants — are natural persons who
claim to be fishermen.

The primary interest of the first set of petitioners is, of course, to prevent the
prosecution, trial and determination of the criminal cases until the constitutionality or
legality of the Ordinances they allegedly violated shall have been resolved. The second
set of petitioners merely claim that being fishermen or marine merchants, they would be
adversely affected by the ordinance's.

As to the first set of petitioners, this special civil for certiorari must fail on the ground of
prematurity amounting to a lack of cause of action. There is no showing that said
petitioners, as the accused in the criminal cases, have filed motions to quash the
informations therein and that the same were denied. The ground available for such
motions is that the facts charged therein do not constitute an offense because the
ordinances in question are unconstitutional. 6It cannot then be said that the lower courts
acted without or in excess of jurisdiction or with grave abuse of discretion to justify
recourse to the extraordinary remedy of certiorari or prohibition. It must further be
stressed that even if petitioners did file motions to quash, the denial thereof would not
forthwith give rise to a cause of action under Rule 65 of the Rules of Court. The general
rule is that where a motion to quash is denied, the remedy therefrom is not certiorari,
but for the party aggrieved thereby to go to trial without prejudice to reiterating special
defenses involved in said motion, and if, after trial on the merits an adverse decision is
rendered, to appeal therefrom in the manner authorized by law. 7 And, even where in
an exceptional circumstance such denial may be the subject of a special civil action
for certiorari, a motion for reconsideration must have to be filed to allow the court
concerned an opportunity to correct its errors, unless such motion may be dispensed
with because of existing exceptional circumstances. 8 Finally, even if a motion for
reconsideration has been filed and denied, the remedy under Rule 65 is still unavailable
absent any showing of the grounds provided for in Section 1 thereof. 9 For obvious
reasons, the petition at bar does not, and could not have, alleged any of such grounds.

As to the second set of petitioners, the instant petition is obviously one for
DECLARATORY RELIEF, i.e., for a declaration that the Ordinances in question are a
"nullity . . . for being unconstitutional."10 As such, their petition must likewise fail, as this
Court is not possessed of original jurisdiction over petitions for declaratory relief even if
only questions of law are involved,11 it being settled that the Court merely exercises
appellate jurisdiction over such petitions.12

II
Even granting arguendo that the first set of petitioners have a cause of action ripe for
the extraordinary writ of certiorari, there is here a clear disregard of the hierarchy of
courts, and no special and important reason or exceptional and compelling
circumstance has been adduced why direct recourse to us should be allowed. While we
have concurrent jurisdiction with Regional Trial courts and with the Court of Appeals to
issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and
injunction, such concurrence gives petitioners no unrestricted freedom of choice of court
forum, so we held in People v. Cuaresma.13

This concurrence of jurisdiction is not . . . to be taken as according to parties


seeking any of the writs an absolute unrestrained freedom of choice of the court
to which application therefor will be directed. There is after all hierarchy of courts.
That hierarchy is determinative of the venue of appeals, and should also serve as
a general determinant of the appropriate forum for petitions for the extraordinary
writs. A becoming regard for that judicial hierarchy most certainly indicates that
petitions for the issuance of extraordinary writs against first level ("inferior")
courts should be filed with the Regional Trial Court, and those against the latter,
with the Court of Appeals. A direct invocation of the Supreme Court's original
jurisdiction to issue these writs should be allowed only when there are special
and important reasons therefor, clearly and specifically set out in the petition.
This is established policy. It is a policy necessary to prevent inordinate demands
upon the Court's time and attention which are better devoted to those matters
within its exclusive jurisdiction, and to prevent further over-crowding of the
Court's docket. . . .

The Court feels the need to reaffirm that policy at this time, and to enjoin strict
adherence thereto in the light of what it perceives to be a growing tendency on
the part of litigants and lawyers to have their applications for the so-called
extraordinary writs, and sometimes even their appeals, passed upon and
adjudicated directly and immediately by the highest tribunal of the land. . . .

In Santiago v. Vasquez,14 this Court forcefully expressed that the propensity of litigants
and lawyers to disregard the hierarchy of courts must be put to a halt, not only because
of the imposition upon the precious time of this Court, but also because of the inevitable
and resultant delay, intended or otherwise, in the adjudication of the case which often
has to be remanded or referred to the lower court, the proper forum under the rules of
procedure, or as better equipped to resolve the issues since this Court is not a trier of
facts. We reiterated "the judicial policy that this Court will not entertain direct resort to it
unless the redress desired cannot be obtained in the appropriate courts or where
exceptional and compelling circumstances justify availment of a remedy within and
calling for the exercise of [its] primary jurisdiction."

III

Notwithstanding the foregoing procedural obstacles against the first set of petitioners,
we opt to resolve this case on its merits considering that the lifetime of the challenged
Ordinances is about to end. Ordinance No. 15-92 of the City of Puerto Princesa is
effective only up to 1 January 1998, while Ordinance No. 2 of the Province of Palawan,
enacted on 19 February 1993, is effective for only five (5) years. Besides, these
Ordinances were undoubtedly enacted in the exercise of powers under the new LGC
relative to the protection and preservation of the environment and are thus novel and of
paramount importance. No further delay then may be allowed in the resolution of the
issues raised.

It is of course settled that laws (including ordinances enacted by local government units)
enjoy the presumption of constitutionality. 15 To overthrow this presumption, there must
be a clear and unequivocal breach of the Constitution, not merely a doubtful or
argumentative contradiction. In short, the conflict with the Constitution must be shown
beyond reasonable doubt.16 Where doubt exists, even if well-founded, there can be no
finding of unconstitutionality. To doubt is to sustain.17

After a scrutiny of the challenged Ordinances and the provisions of the Constitution
petitioners claim to have been violated, we find petitioners' contentions baseless and so
hold that the former do not suffer from any infirmity, both under the Constitution and
applicable laws.

Petitioners specifically point to Section 2, Article XII and Sections 2 and 7, Article XIII of
the Constitution as having been transgressed by the Ordinances.

The pertinent portion of Section 2 of Article XII reads:

Sec. 2. . . .

The State shall protect the nation's marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by


Filipino citizens, as well as cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays, and lagoons.

Sections 2 and 7 of Article XIII provide:

Sec. 2. The promotion of social justice shall include the commitment to


create economic opportunities based on freedom of initiative and self-
reliance.

xxx xxx xxx

Sec. 7. The State shall protect the rights of subsistence fishermen,


especially of local communities, to the preferential use of the communal
marine and fishing resources, both inland and offshore. It shall provide
support to such fishermen through appropriate technology and research,
adequate financial, production, and marketing assistance, and other
services. The State shall also protect, develop, and conserve such
resources. The protection shall extend to offshore fishing grounds of
subsistence fishermen against foreign intrusion. Fishworkers shall receive
a just share from their labor in the utilization of marine and fishing
resources.

There is absolutely no showing that any of the petitioners qualifies as a


subsistence or marginal fisherman. In their petition, petitioner Airline Shippers
Association of Palawan is self-described as "a private association composed of
Marine Merchants;" petitioners Robert Lim and Virginia Lim, as "merchants;"
while the rest of the petitioners claim to be "fishermen," without any qualification,
however, as to their status.

Since the Constitution does not specifically provide a definition of the terms
"subsistence" or "marginal" fishermen,18 they should be construed in their
general and ordinary sense. A marginal fisherman is an individual engaged in
fishing whose margin of return or reward in his harvest of fish as measured by
existing price levels is barely sufficient to yield a profit or cover the cost of
gathering the fish,19 while a subsistence fisherman is one whose catch yields but
the irreducible minimum for his livelihood.20 Section 131(p) of the LGC (R.A. No.
7160) defines a marginal farmer or fisherman as "an individual engaged in
subsistence farming or fishing which shall be limited to the sale, barter or
exchange of agricultural or marine products produced by himself and his
immediate family." It bears repeating that nothing in the record supports a finding
that any petitioner falls within these definitions.

Besides, Section 2 of Article XII aims primarily not to bestow any right to
subsistence fishermen, but to lay stress on the duty of the State to protect the
nation's marine wealth. What the provision merely recognizes is that the State
may allow, by law, cooperative fish farming, with priority to subsistence fishermen
and fishworkers in rivers, lakes, bays and lagoons. Our survey of the statute
books reveals that the only provision of law which speaks of a preferential right of
marginal fishermen is Section 149 of the LGC, which pertinently provides:

Sec. 149. Fishery Rentals, Fees and Charges. — . . .

(b) The sangguniang bayan may:

(1) Grant fishery privileges to erect fish corrals,


oyster, mussels or other aquatic beds or
bangus fry areas, within a definite zone of the
municipal waters, as determined by
it: Provided, however, That duly registered
organizations and cooperatives of marginal
fishermen shall have the preferential right to
such fishery privileges . . . .

In a Joint Administrative Order No. 3 dated 25 April 1996, the Secretary of the
Department of Agriculture and the Secretary of the Department of Interior and
Local Government prescribed guidelines concerning the preferential treatment of
small fisherfolk relative to the fishery right mentioned in Section 149. This case,
however, does not involve such fishery right.

Anent Section 7 of Article XIII, it speaks not only of the use of communal marine
and fishing resources, but of their protection, development and conservation. As
hereafter shown, the ordinances in question are meant precisely to protect and
conserve our marine resources to the end that their enjoyment may be
guaranteed not only for the present generation, but also for the generations to
come.

The so-called "preferential right" of subsistence or marginal fishermen to the use


of marine resources is not at all absolute. In accordance with the Regalian
Doctrine, marine resources belong to the State, and, pursuant to the first
paragraph of Section 2, Article XII of the Constitution, their "exploration,
development and utilization . . . shall be under the full control and supervision of
the State." Moreover, their mandated protection, development and conservation
as necessarily recognized by the framers of the Constitution, imply certain
restrictions on whatever right of enjoyment there may be in favor of anyone.
Thus, as to the curtailment of the preferential treatment of marginal fishermen,
the following exchange between Commissioner Francisco Rodrigo and
Commissioner Jose F.S. Bengzon, Jr., took place at the plenary session of the
Constitutional Commission:

MR. RODRIGO:

Let us discuss the implementation of this because I would


not raise the hopes of our people, and afterwards fail in the
implementation. How will this be implemented? Will there be
a licensing or giving of permits so that government officials
will know that one is really a marginal fisherman? Or if
policeman say that a person is not a marginal fisherman, he
can show his permit, to prove that indeed he is one.

MR. BENGZON:

Certainly, there will be some mode of licensing insofar as


this is concerned and this particular question could be
tackled when we discuss the Article on Local Governments
— whether we will leave to the local governments or to
Congress on how these things will be implemented. But
certainly, I think our congressmen and our local officials will
not be bereft of ideas on how to implement this mandate.

xxx xxx xxx

MR. RODRIGO:

So, once one is licensed as a marginal fisherman, he can go


anywhere in the Philippines and fish in any fishing grounds.

MR. BENGZON:

Subject to whatever rules and regulations and local laws that


may be passed, may be existing or will be
passed.21 (emphasis supplied)

What must likewise be borne in mind is the state policy enshrined in the
Constitution regarding the duty of the State to protect and advance the right of
the people to a balanced and healthful ecology in accord with the rhythm and
harmony of nature. 22 On this score, in Oposa v. Factoran, 23 this Court declared:

While the right to a balanced and healthful ecology is to be found under


the Declaration of Principles the State Policies and not under the Bill of
Rights, it does not follow that it is less important than any of the civil and
political rights enumerated in the latter. Such a right belongs to a different
category of rights altogether for it concerns nothing less than self-
preservation and self-perpetuation — aptly and fittingly stressed by the
petitioners — the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic rights
need not even be written in the Constitution for they are assumed to exist
from the inception of humankind. If they are now explicitly mentioned in
the fundamental charter, it is because of the well-founded fear of its
framers that unless the rights to a balanced and healthful ecology and to
health are mandated as state policies by the Constitution itself, thereby
highlighting their continuing importance and imposing upon the state a
solemn obligation to preserve the first and protect and advance the
second, the day would not be too far when all else would be lost not only
for the present generation, but also for those to come — generations
which stand to inherit nothing but parched earth incapable of sustaining
life.

The right to a balanced and healthful ecology carries with it a correlative


duty to refrain from impairing the environment. . . .
The LGC provisions invoked by private respondents merely seek to give flesh
and blood to the right of the people to a balanced and healthful ecology. In fact,
the General Welfare Clause, expressly mentions this right:

Sec. 16. General Welfare. — Every local government unit shall exercise
the powers expressly granted, those necessarily implied therefrom, as well
as powers necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the promotion of
the general welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage
and support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants. (emphasis supplied).

Moreover, Section 5(c) of the LGC explicitly mandates that the general welfare
provisions of the LGC "shall be liberally interpreted to give more powers to the
local government units in accelerating economic development and upgrading the
quality of life for the people of the community."

The LGC vests municipalities with the power to grant fishery privileges in
municipal waters and impose rentals, fees or charges therefor; to penalize, by
appropriate ordinances, the use of explosives, noxious or poisonous substances,
electricity, muro-ami, and other deleterious methods of fishing; and to prosecute
any violation of the provisions of applicable fishery laws. 24 Further, the
sangguniang bayan, the sangguniang panlungsod and the sangguniang
panlalawigan are directed to enact ordinances for the general welfare of the
municipality and its inhabitants, which shall include, inter alia, ordinances that
"[p]rotect the environment and impose appropriate penalties for acts which
endanger the environment such as dynamite fishing and other forms of
destructive fishing . . . and such other activities which result in pollution,
acceleration of eutrophication of rivers and lakes, or of ecological
imbalance."25

Finally, the centerpiece of LGC is the system of decentralization26 as expressly


mandated by the Constitution.27 Indispensable to decentralization
is devolution and the LGC expressly provides that "[a]ny provision on a power of
a local government unit shall be liberally interpreted in its favor, and in case of
doubt, any question thereon shall be resolved in favor of devolution of powers
and of the lower local government unit. Any fair and reasonable doubt as to the
existence of the power shall be interpreted in favor of the local government unit
concerned."28 Devolution refers to the act by which the National Government
confers power and authority upon the various local government units to perform
specific functions and responsibilities.29

One of the devolved powers enumerated in the section of the LGC on devolution
is the enforcement of fishery laws in municipal waters including the conservation
of mangroves.30 This necessarily includes the enactment of ordinances to
effectively carry out such fishery laws within the municipal waters.

The term "municipal waters," in turn, includes not only streams, lakes, and tidal
waters within the municipality, not being the subject of private ownership and not
comprised within the national parks, public forest, timber lands, forest reserves,
or fishery reserves, but also marine waters included between two lines drawn
perpendicularly to the general coastline from points where the boundary lines of
the municipality or city touch the sea at low tide and a third line parallel with the
general coastline and fifteen kilometers from
31
it. Under P.D. No. 704, the marine waters included in municipal waters is limited
to three nautical miles from the general coastline using the above perpendicular
lines and a third parallel line.

These "fishery laws" which local government units may enforce under Section
17(b)(2)(i) in municipal waters include: (1) P.D. No. 704; (2) P.D. No. 1015
which, inter alia, authorizes the establishment of a "closed season" in any
Philippine water if necessary for conservation or ecological purposes; (3) P.D.
No. 1219 which provides for the exploration, exploitation, utilization and
conservation of coral resources; (4) R.A. No. 5474, as amended by B.P. Blg. 58,
which makes it unlawful for any person, association or corporation to catch or
cause to be caught, sell, offer to sell, purchase, or have in possession any of the
fish specie called gobiidae or "ipon" during closed season; and (5) R.A. No. 6451
which prohibits and punishes electrofishing, as well as various issuances of the
BFAR.

To those specifically devolved insofar as the control and regulation of fishing in


municipal waters and the protection of its marine environment are concerned,
must be added the following:

1. Issuance of permits to construct fish cages within


municipal waters;

2. Issuance of permits to gather aquarium fishes within


municipal waters;

3. Issuance of permits to gather kapis shells within municipal


waters;

4. Issuance of permits to gather/culture shelled mollusks


within municipal waters;

5. Issuance of licenses to establish seaweed farms within


municipal waters;

6. Issuance of licenses to establish culture pearls within


municipal waters;

7. Issuance of auxiliary invoice to transport fish and fishery


products; and

8. Establishment of "closed season" in municipal waters.

These functions are covered in the Memorandum of Agreement of 5 April 1994


between the Department of Agriculture and the Department of Interior and Local
Government.

In light then of the principles of decentralization and devolution enshrined in the


LGC and the powers granted therein to local government units under Section 16
(the General Welfare Clause), and under Sections 149, 447(a) (1) (vi), 458 (a) (1)
(vi) and 468 (a) (1) (vi), which unquestionably involve the exercise of police
power, the validity of the questioned Ordinances cannot be doubted.
Parenthetically, we wish to add that these Ordinances find full support under R.A.
No. 7611, otherwise known as the Strategic Environmental Plan (SEP) for
Palawan Act, approved on 19 June 1992. This statute adopts a "comprehensive
framework for the sustainable development of Palawan compatible with
protecting and enhancing the natural resources and endangered environment of
the province," which "shall serve to guide the local government of Palawan and
the government agencies concerned in the formulation and implementation of
plans, programs and projects affecting said province."32

At this time then, it would be appropriate to determine the relation between the
assailed Ordinances and the aforesaid powers of the Sangguniang Panlungsod
of the City of Puerto Princesa and the Sangguniang Panlalawigan of the Province
of Palawan to protect the environment. To begin, we ascertain the purpose of the
Ordinances as set forth in the statement of purposes or declaration of policies
quoted earlier.

It is clear to the Court that both Ordinances have two principal objectives or
purposes: (1) to establish a "closed season" for the species of fish or aquatic
animals covered therein for a period of five years; and (2) to protect the coral in
the marine waters of the City of Puerto Princesa and the Province of Palawan
from further destruction due to illegal fishing activities.

The accomplishment of the first objective is well within the devolved power to
enforce fishery laws in municipal waters, such as P.D. No. 1015, which allows
the establishment of "closed seasons." The devolution of such power has been
expressly confirmed in the Memorandum of Agreement of 5 April 1994 between
the Department of Agriculture and the Department of Interior and Local
Government.

The realization of the second objective clearly falls within both the general
welfare clause of the LGC and the express mandate thereunder to cities and
provinces to protect the environment and impose appropriate penalties for acts
which endanger the environment.33

The destruction of coral reefs results in serious, if not irreparable, ecological


imbalance, for coral reefs are among nature's life-support systems.34 They
collect, retain and recycle nutrients for adjacent nearshore areas such as
mangroves, seagrass beds, and reef flats; provide food for marine plants and
animals; and serve as a protective shelter for aquatic organisms. 35 It is said that
"[e]cologically, the reefs are to the oceans what forests are to continents: they
are shelter and breeding grounds for fish and plant species that will disappear
without them."36

The prohibition against catching live fish stems, in part, from the modern
phenomenon of live-fish trade which entails the catching of so-called exotic
species of tropical fish, not only for aquarium use in the West, but also for "the
market for live banquet fish [which] is virtually insatiable in ever more affluent
Asia.37 These exotic species are coral-dwellers, and fishermen catch them by
"diving in shallow water with corraline habitats and squirting sodium cyanide
poison at passing fish directly or onto coral crevices; once affected the fish are
immobilized [merely stunned] and then scooped by hand." 38 The diver then
surfaces and dumps his catch into a submerged net attached to the skiff. Twenty
minutes later, the fish can swim normally. Back on shore, they are placed in
holding pens, and within a few weeks, they expel the cyanide from their system
and are ready to be hauled. They are then placed in saltwater tanks or packaged
in plastic bags filled with seawater for shipment by air freight to major markets for
live food fish.39 While the fish are meant to survive, the opposite holds true for
their former home as "[a]fter the fisherman squirts the cyanide, the first thing to
perish is the reef algae, on which fish feed. Days later, the living coral starts to
expire. Soon the reef loses its function as habitat for the fish, which eat both the
algae and invertebrates that cling to the coral. The reef becomes an underwater
graveyard, its skeletal remains brittle, bleached of all color and vulnerable to
erosion from the pounding of the waves." 40 It has been found that cyanide fishing
kills most hard and soft corals within three months of repeated application.41

The nexus then between the activities barred by Ordinance No. 15-92 of the City
of Puerto Princesa and the prohibited acts provided in Ordinance No. 2, Series of
1993 of the Province of Palawan, on one hand, and the use of sodium cyanide,
on the other, is painfully obvious. In sum, the public purpose and reasonableness
of the Ordinances may not then be controverted.

As to Office Order No. 23, Series of 1993, issued by Acting City Mayor Amado L.
Lucero of the City of Puerto Princesa, we find nothing therein violative of any
constitutional or statutory provision. The Order refers to the implementation of the
challenged ordinance and is not the Mayor's Permit.

The dissenting opinion of Mr. Justice Josue N. Bellosillo relies upon the lack of
authority on the part of the Sangguniang Panglungsod of Puerto Princesa to
enact Ordinance No. 15, Series of 1992, on the theory that the subject thereof is
within the jurisdiction and responsibility of the Bureau of Fisheries and Aquatic
Resources (BFAR) under P.D. No. 704, otherwise known as the Fisheries
Decree of 1975; and that, in any event, the Ordinance is unenforceable for lack
of approval by the Secretary of the Department of Natural Resources (DNR),
likewise in accordance with P.D. No. 704.

The majority is unable to accommodate this view. The jurisdiction and


responsibility of the BFAR under P.D. No. 704, over the management,
conservation, development, protection, utilization and disposition of all fishery
and aquatic resources of the country is not all-encompassing. First, Section 4
thereof excludes from such jurisdiction and responsibility municipal waters, which
shall be under the municipal or city government concerned, except insofar as
fishpens and seaweed culture in municipal centers are concerned. This section
provides, however, that all municipal or city ordinances and resolutions affecting
fishing and fisheries and any disposition thereunder shall be submitted to the
Secretary of the Department of Natural Resources for appropriate action and
shall have full force and effect only upon his approval.42

Second, it must at once be pointed out that the BFAR is no longer under the
Department of Natural Resources (now Department of Environment and Natural
Resources). Executive Order No. 967 of 30 June 1984 transferred the BFAR
from the control and supervision of the Minister (formerly Secretary) Of Natural
Resources to the Ministry of Agriculture and Food (MAF) and converted it into a
mere staff agency thereof, integrating its functions with the regional offices of the
MAF.

In Executive Order No. 116 of 30 January 1987, which reorganized the MAF, the
BFAR was retained as an attached agency of the MAF. And under the
Administrative Code of 1987,43 the BFAR is placed under the Title concerning the
Department of Agriculture.44

Therefore, it is incorrect to say that the challenged Ordinance of the City of


Puerto Princesa is invalid or unenforceable because it was not approved by the
Secretary of the DENR. If at all, the approval that should be sought would be that
of the Secretary of the Department of Agriculture. However, the requirement of
approval by the Secretary of the Department of Agriculture (not DENR) of
municipal ordinances affecting fishing and fisheries in municipal waters has been
dispensed with in view of the following reasons:

(1) Section 534 (Repealing Clause) of the LGC expressly repeals or amends
Sections 16 and 29 of P.D. No. 70445 insofar as they are inconsistent with the
provisions of the LGC.

(2) As discussed earlier, under the general welfare clause of the LGC, local
government units have the power, inter alia, to enact ordinances to enhance the
right of the people to a balanced ecology. It likewise specifically vests
municipalities with the power to grant fishery privileges in municipal waters, and
impose rentals, fees or charges therefor; to penalize, by appropriate ordinances,
the use of explosives, noxious or poisonous substances, electricity, muro-ami,
and other deleterious methods of fishing; and to prosecute any violation of the
provisions of applicable fishery laws.46 Finally, it imposes upon the sangguniang
bayan, the sangguniang panlungsod, and the sangguniang panlalawigan the duty
to enact ordinances to "[p]rotect the environment and impose appropriate
penalties for acts which endanger the environment such as dynamite fishing and
other forms of destructive fishing . . . and such other activities which result in
pollution, acceleration of eutrophication of rivers and lakes or of ecological
imbalance."47

In closing, we commend the Sangguniang Panlungsod of the City of Puerto


Princesa and Sangguniang Panlalawigan of the Province of Palawan for
exercising the requisite political will to enact urgently needed legislation to protect
and enhance the marine environment, thereby sharing in the herculean task of
arresting the tide of ecological destruction. We hope that other local government
units shall now be roused from their lethargy and adopt a more vigilant stand in
the battle against the decimation of our legacy to future generations. At this time,
the repercussions of any further delay in their response may prove disastrous, if
not, irreversible.

WHEREFORE, the instant petition is DISMISSED for lack of merit and the
temporary restraining order issued on 11 November 1993 is LIFTED.

No pronouncement as to costs.

SO ORDERED.

G.R. No. 160932 January 14, 2013

SPECIAL PEOPLE, INC. FOUNDATION, REPRESENTED BY ITS CHAIRMAN,


ROBERTO P. CERICOS,Petitioner,
vs.
NESTOR M. CANDA, BIENVENIDO LIPA YON, JULIAN D. AMADOR, BOHOL
PROVINCIAL CHIEF, REGIONAL DIRECTOR, AND NATIONAL DIRECTOR,
RESPECTIVELY, ENVIRONMENTAL MANAGEMENT BUREAU, DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES, AND THE SECRETARY OF THE
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, ALL SUED IN
BOTH THEIR OFFICIAL AND PRIVATE CAPACITIES, Respondents.

DECISION

BERSAMIN, J.:
The peremptory writ of mandamus is an extraordinary remedy that is issued only in
extreme necessity, and the ordinary course of procedure is powerless to afford an
adequate and speedy relief to one who has a clear legal right to the performance of the
act to be compelled.

Antecedents

The petitioner was a proponent of a water-resource development and utilization project


in Barangay Jimilia-an in the Municipality of Loboc, Bohol that would involve the tapping
and purifying of water from the Loboc River, and the distribution of the purified water to
the residents of Loboc and six other municipalities. The petitioner applied for a
Certificate of Non-Coverage (CNC) with the Environmental Management Bureau (EMB)
of the Department of Environment and Natural Resources (DENR), Region 7, seeking to
be exempt from the requirement of the Environmental Compliance Certificate (ECC)
under Section 4 of Presidential Decree No. 1586 on the following justifications, to wit:

1) The whole project simply involves tapping of water from the Loboc River,
filtering and purifying it, and distributing the same to the consumers in the
covered towns;

2) From the source to the filtration plant, then to the purifier stations, then finally
to the consumers’ households, water flows through steel pipes;

3) The filtration and purifying process employs the latest technology—


"electrocatalytic"—internationally accepted for safety and environment
friendliness;

4) No waste is generated, as the electrocatalytic process dissolves all impurities


in the water;

5) The project involves no destruction [n]or harm to the environment. On the


other hand, it is environment friendly.1

Upon evaluating the nature and magnitude of the environmental impact of the project,
respondent Nestor M. Canda, then Chief of EMB in Bohol, rendered his findings in a
letter dated December 4, 2001, as follows:

1) The project is located within a critical area; hence, Initial Environmental


Examination is required.

2) The project is socially and politically sensitive therefore proof of social


acceptability should be established. Proper indorsement from the Protected Area
Management Bureau or PAMB should be secured.2 (Emphasis supplied)

On January 11, 2002, the petitioner appealed Canda’s findings to respondent EMB
Region 7 Director Bienvenido L. Lipayon (RD Lipayon), claiming that it should also be
issued a CNC because the project was no different from the Loboc-Loay waterworks
project of the Department of Public Works and Highways (DPWH) that had recently
been issued a CNC.3

On April 3, 2002, RD Lipayon notified the petitioner that its documents substantially
complied with the procedural aspects of the EMB’s review, and that the application was
assigned EMB-DENR-7 Control No. CNC-02-080 for easy reference in case of follow-up
and submission of additional requirements.4

Later on, RD Lipayon informed the petitioner that an Initial Environmental Examination
document was required for the project due to its significant impact in the area.5
On August 26, 2002, RD Lipayon required the petitioner to submit the following
documents to enable the EMB to determine whether the project was within an
environmentally critical area or not, to wit:

1. Certification from DENR, Provincial Environment and Natural Resources Office


(PENRO) that it is not within areas declared by law as national parks, watershed
reserves, wildlife preservation area, sanctuaries and not within the purview of
Republic Act No. 7586 or the National Integrated Protected Areas System
(NIPAS) Act, and other issuances including international commitments and
declarations;

2. Certification from the DENR Regional Office/ PENRO [that] the areas within
the project do not constitute the habitat for any endangered or threatened
species or indigenous wildlife (Flora and Fauna).

3. Certification from the following:

3.1. Philippine Atmospheric Geophysical and Astronomical Services


Administration (PAGASA) that the area is not frequently visited or hard-hit
by typhoons. This shall refer to all areas where typhoon signal no. 3 not
hoisted for at least twice a year during the last five (5) years prior to the
year of reckoning. Years to be considered shall be from January 1995 to
December 2001.

3.2. Philippine Institute of Volcanology and Seismology (PHIVOLCS) that


the area was not subjected to an earthquake of at least intensity VII in the
Rossi-Forel scale or its equivalent and hit by tsunamis during the period of
1638 until the year 2001.

3.3. PHIVOLCS that the area was not subjected to earthquakes of at least
intensity VII in the Rossi-Forel scale or its equivalent during the period of
1949 until the year 2001.

3.4. PAGASA that the area is not storm surge-prone.

3.5. Mines and Geosciences Bureau Region 7 (MGB 7) that the area is
not located along fault lines or within fault zones and not located in critical
slope.

3.6. City Mayor and/or City Engineers Office that the area is not flood
prone.

3.7. Network of Protected Areas for Agriculture (NPAA) of the Bureau of


Soils and Water Management (BSWM) that the area is not classified as
Prime Agricultural Land.

4. Certification from the Provincial Tourism Office or its equivalent office that
areas in your project are not set-aside as aesthetic potential tourist spot.

5. Certification from the National Water Resources Board (NWRB) that areas
within your project are not recharged areas of aquifer.

6. Certification from DENR regional Office and/or Environmental Management


Bureau 7 (EMB 7) that Loboc River is not characterized by one or any
combination of the following conditions:

a. Tapped for domestic purposes;


b. With controlled and/or protected areas declared by appropriate
authorities; and

c. Which support wildlife and fishery activities.

A Certificate of Non-Coverage will duly be issued to your foundation once all the above
mentioned required certifications are complied with.

Projects that are covered by P.D. 1586 or the Environmental Impact System (EIS) Law
should not start unless the Project Proponent should secure an Environmental
Compliance Certificate (ECC), otherwise penalties shall be imposed. 6 (Emphases
supplied)

On January 28, 2003, the petitioner submitted eight certifications, 7 including the
certification issued by the Philippine Institute of Volcanology and Seismology
(PHIVOLCS), as follows:

That the project area, Loboc, Bohol was subjected to an earthquake of Intensity VII in
the adapted Rossi-Forel scale of I-IX last February 8, 1990. The magnitude of the
earthquake is 6.8 and the highest intensity reported was VIII, based on the Rossi-Forel
Intensity Scale. During the said earthquake, the PMI Academy Building collapsed while
minor cracks were sustained by the municipal hall, public school, town church and some
other houses in the town. There were reports that immediately after the earthquake, the
force of the incoming waves from the sea caused Alijuan River in the town of Duero to
flow inland. The report also states that the waves affected 10-50 meters of the coastal
beach of the towns of Jagna, Duero, Guindulman, Garcia Hernandez and
Valencia.8 (Emphases supplied)

The petitioner failed to secure a certification from the Regional Office of the Mines and
Geosciences Bureau (RO-MGB) to the effect that the project area was not located along
a fault line/fault zone or a critical slope because RO-MGB did not have the data and
expertise to render such finding, and thus had to forward the petitioner’s request to the
MGB Central Office.9

Upon the MGB’s advice, the petitioner sought and obtained the required certification
from PHIVOLCS, but the certification did not state whether the project area was within a
critical slope. Instead, the certification stated that the project site was approximately 18
kilometers west of the East Bohol Fault.10

Given the tenor of the certification from PHIVOLCS, RD Lipayon’s letter dated February
4, 2003 declared that the project was within an environmentally critical area, and that
the petitioner was not entitled to the CNC, viz:

After thorough review of your submitted certifications, it was found out that the area was
subjected to an earthquake of Intensity VII in the adapted Rossi-Forel scale wherein the
magnitude of the earthquake is 6.8 with the highest intensity reported of VIII and you fail
to support certification that the project area is not within critical slope. And based on the
Water Usage and Classification per Department Order (DAO) 34 Series of 1990, subject
river system was officially classified as Class B intended for swimming and bathing
purposes. Moreover, one component of your project involves opening of roadway
connected to the barangay road.

Therefore, we reiterate our previous stand that your project is covered by the EIS
System pursuant to P.D. 1586, the Environmental Impact Statement Law. 11

On March 27, 2003, the petitioner filed a petition for mandamus and damages in the
Regional Trial Court (RTC) in Loay, Bohol,12 alleging that it was now entitled to a CNC
as a matter of right after having complied with the certification requirements; and that
the EMB had earlier issued a CNC to the DPWH for a similar waterworks project in the
same area.

In the decision dated November 18, 2003,13 the RTC dismissed the petition for
mandamus upon the following considerations, namely: (1) PHIVOLCS certified that the
project site had been subjected to an Intensity VII earthquake in 1990; (2) the CNC
issued by the EMB to a similar waterworks project of the DPWH in the same area was
only for the construction of a unit spring box intake and pump house, and the DENR
issued a cease and desist order relative to the DPWH’s additional project to put up a
water filtration plant therein; (3) the determination of whether an area was
environmentally critical was a task that pertained to the EMB; (4) the assignment of a
control number by the EMB to the petitioner’s application did not mean that the
application was as good as approved; (5) the RTC would not interfere with the primary
prerogative of the EMB to review the merits of the petitioner’s application for the CNC;
and (6) there was already a pending appeal lodged with the DENR Secretary.

Hence, this appeal brought directly to the Court via petition for review on certiorari.

Issues

The petitioner submits the following issues:

A. WHETHER OR NOT, AFTER PETITIONER’S DUE COMPLIANCE WITH THE


REQUIREMENTS MANDATED BY RESPONDENTS FOR THE ISSUANCE OF
THE CERTIFICATE OF NON-COVERAGE (CNC) APPLIED FOR BY
PETITIONER, IT IS NOW THE RIPENED DUTY OF RESPONDENTS,
THROUGH RESPONDENT EMB REGIONAL DIRECTOR, TO ISSUE SAID
DOCUMENT IN FAVOR OF PETITIONER;

B. WHETHER OR NOT PETITIONER HAS EXHAUSTED AVAILABLE


ADMINISTRATIVE REMEDIES THROUGH AN APPEAL TO RESPONDENT
DENR SECRETARY WHO HAS SAT ON SAID APPEAL UP TO THE PRESENT;

C. WHETHER OR NOT PETITIONER IS ENTITLED TO RECOVER DAMAGES


FROM RESPONDENTS IN THEIR PERSONAL CAPACITY.14

The petitioner insists that RD Lipayon already exercised his discretion by finding that
the application substantially complied with the procedural aspects for review and by
assigning Control No. CNC-02-080 to its application; that after the petitioner complied
with the requirements enumerated in the August 26, 2002 letter of RD Lipayon, the EMB
became duty-bound to issue the CNC to the petitioner; that the EMB issued a CNC to a
similar project of the DPWH in the same area; that it filed an appeal with the DENR
Secretary, but the appeal remained unresolved; and that it brought the petition for
mandamus precisely as a speedier recourse.

In their comment, RD Lipayon and Canda aver that the act complained of against them
involved an exercise of discretion that could not be compelled by mandamus; that the
petitioner’s proposed project was located within an environmentally critical area, and the
activities to be done were so significant that they would create massive earth movement
and environmental degradation; that the petitioner violated the rule against forum
shopping; and that the petitioner had no cause of action against them for failure to
exhaust administrative remedies.

On his part, the DENR Secretary, through the Solicitor General, contends that the
petition raises questions of fact that are not proper in a petition for review; that the
petitioner should have appealed to the CA under Rule 41 of the Rules of Court; that the
grant or denial of a CNC application is discretionary and cannot be compelled by
mandamus; and that the petitioner failed to exhaust administrative remedies.

Accordingly, the Court is called upon to resolve, firstly, whether the appeal directly to
this Court from the RTC was proper, and, secondly, whether the petition for mandamus
was the correct recourse.

Ruling

The petition for review is denied for its lack of merit.

1.

Petitioner’s appeal is improper under Rule 45, Rules of Court

This appeal by certiorari is being taken under Rule 45, Rules of Court, whose Section 1
expressly requires that the petition shall raise only questions of law which must be
distinctly set forth. Yet, the petitioner hereby raises a question of fact whose resolution
is decisive in this appeal. That issue of fact concerns whether or not the petitioner
established that its project was not located in an environmentally critical area. For this
reason, the Court is constrained to deny due course to the petition for review.

It is a settled rule, indeed, that in the exercise of our power of review, the Court is not a
trier of facts and does not normally undertake the re-examination of the evidence
presented by the contending parties during the trial of the case. The Court relies on the
findings of fact of the Court of Appeals or of the trial court, and accepts such findings as
conclusive and binding unless any of the following exceptions obtains, namely: (a) when
the findings are grounded entirely on speculation, surmises or conjectures; (b) when the
inference made is manifestly mistaken, absurd or impossible; (c) when there is grave
abuse of discretion; (d) when the judgment is based on a misapprehension of facts; (e)
when the findings of facts are conflicting; (f) when in making its findings the Court of
Appeals or the trial court went beyond the issues of the case, or its findings are contrary
to the admissions of both the appellant and the appellee; (g) when the findings are
contrary to the trial court; (h) when the findings are conclusions without citation of
specific evidence on which they are based; (i) when the facts set forth in the petition as
well as in the petitioner’s main and reply briefs are not disputed by the respondent; (j)
when the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; and (k) when the Court of Appeals or the trial
court manifestly overlooked certain relevant facts not disputed by the parties, which, if
properly considered, would justify a different conclusion. 15 However, none of the
aforementioned exceptions applies herein.

2.

Mandamus was an improper remedy for petitioner

We dismiss the present recourse because the petitioner failed to exhaust the available
administrative remedies, and because it failed to show that it was legally entitled to
demand the performance of the act by the respondents.

It is axiomatic, to begin with, that a party who seeks the intervention of a court of law
upon an administrative concern should first avail himself of all the remedies afforded by
administrative processes. The issues that an administrative agency is authorized to
decide should not be summarily taken away from it and submitted to a court of law
without first giving the agency the opportunity to dispose of the issues upon due
deliberation.16 The court of law must allow the administrative agency to carry out its
functions and discharge its responsibilities within the specialized areas of its
competence.17 This rests on the theory that the administrative authority is in a better
position to resolve questions addressed to its particular expertise, and that errors
committed by subordinates in their resolution may be rectified by their superiors if given
a chance to do so.18

The records show that the petitioner failed to exhaust the available administrative
remedies. At the time RD Lipayon denied the petitioner’s application for the CNC,
Administrative Order No. 42 dated November 2, 2002 19 had just vested the authority to
grant or deny applications for the ECC in the Director and Regional Directors of the
EMB. Notwithstanding the lack of a specific implementing guideline to what office the
ruling of the EMB Regional Director was to be appealed, the petitioner could have been
easily guided in that regard by the Administrative Code of 1987, which provides that the
Director of a line bureau, such as the EMB,20 shall have supervision and control over all
division and other units, including regional offices, under the bureau. 21 Verily,
supervision and control include the power to "review, approve, reverse or modify acts
and decisions of subordinate officials or units." 22 Accordingly, the petitioner should have
appealed the EMB Regional Director’s decision to the EMB Director, who exercised
supervision and control over the former.

It is relevant to mention that the DENR later promulgated Administrative Order No.
2003-3023 in order to define where appeals should be taken, providing as follows:

Section 6. Appeal

Any party aggrieved by the final decision on the ECC/CNC applications may, within 15
days from receipt of such decision, file an appeal on the following grounds:

a. Grave abuse of discretion on the part of the deciding authority, or

b. Serious errors in the review findings.

The DENR may adopt alternative conflict/dispute resolution procedures as a means to


settle grievances between proponents and aggrieved parties to avert unnecessary legal
action. Frivolous appeals shall not be countenanced.

The proponent or any stakeholder may file an appeal to the following:

1âwphi1
Deciding Authority Where to file the appeal
EMB Regional Office Director Office of the EMB Director
EMB Central Office Director Office of the DENR Secretary
DENR Secretary Office of the President

Moreover, the petitioner states in its pleadings that it had a pending appeal with the
DENR Secretary.1âwphi1 However, the records reveal that the subject of the appeal of
the petitioner was an undated resolution of the DENR Regional Director, Region VII,
denying its application for the CNC,24 not the decision of RD Lipayon. Nonetheless,
even assuming that the pending appeal with the DENR Secretary had related to RD
Lipayon’s decision, the petitioner should still have waited for the DENR Secretary to
resolve the appeal in line with the principle of exhaustion of administrative remedies. Its
failure to do so rendered its resort to mandamus in the RTC premature. The omission is
fatal, because mandamus is a remedy only when there is no appeal, nor any plain,
speedy and adequate remedy in the ordinary course of law.25
Another reason for denying due course to this review is that the petitioner did not
establish that the grant of its application for the CNC was a purely ministerial in nature
on the part of RD Lipayon. Hence, mandamus was not a proper remedy.

The CNC is a certification issued by the EMB certifying that a project is not covered by
the Environmental Impact Statement System (EIS System) and that the project
proponent is not required to secure an ECC.26 The EIS System was established by
Presidential Decree (P.D.) No. 1586 pursuant to Section 4 of P.D. No. 1151 (Philippine
Environmental Policy) that required all entities to submit an EIS for projects that would
have a significant effect on the environment, thus:

Section 4. Environmental Impact Statements. – Pursuant to the above enunciated


policies and goals, all agencies and instrumentalities of the national government,
including government-owned or controlled corporations, as well as private corporations,
firms and entities shall prepare, file and include in every action, project or undertaking
which significantly affects the quality of the environment a detailed statement on–

(a) the environmental impact of the proposed action, project or undertaking

(b) any adverse environmental effect which cannot be avoided should the
proposal be implemented

(c) alternative to the proposed action

(d) a determination that the short-term uses of the resources of the environment
are consistent with the maintenance and enhancement of the long-term
productivity of the same; and

(e) whenever a proposal involves the use of depletable or non-renewable


resources, a finding must be made that such use and commitment are warranted.

xxxx

P.D. No. 1586 exempted from the requirement of an EIS the projects and areas not
declared by the President of the Philippines as environmentally critical, 27 thus:

Section 5. Environmentally Non-Critical Projects. - All other projects, undertakings and


areas not declared by the Presidents as environmentally critical shall be considered as
non-critical and shall not be required to submit an environmental impact statement. The
National Environmental Protection Council, thru the Ministry of Human Settlements may
however require non-critical projects and undertakings to provide additional
environmental safeguards as it may deem necessary.

On December 14, 1981, the President issued Proclamation No. 2146 declaring areas
and types of projects as environmentally critical and within the scope of the EIS System,
as follows:

A. Environmentally Critical Projects

I. Heavy Industries

a. Non-ferrous metal industries

b. Iron and steel mills

c. Petroleum and petro-chemical industries including oil and gas


d. Smelting plants

II. Resource Extractive Industries

a. Major mining and quarrying projects

b. Forestry projects

1. Logging

2. Major wood processing projects

3. Introduction of fauna (exotic-animals) in public/private forests

4. Forest occupancy

5. Extraction of mangrove products

6. Grazing

c. Fishery Projects

1. Dikes for fishpond development projects

III. Infrastructure Projects

a. Major dams

b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or


geothermal)

c. Major reclamation projects

d. Major roads and bridges.

B. Environmentally Critical Areas

1. All areas declared by law as national parks, watershed reserves, wildlife


preserves and sanctuaries;

2. Areas set aside as aesthetic potential tourist spots;

3. Areas which constitute the habitat for any endangered or threatened


species of indigenous Philippine Wildlife (flora and fauna);

4. Areas of unique historic, archaeological, or scientific interests;

5. Areas which are traditionally occupied by cultural communities or tribes;

6. Areas frequently visited and/or hard-hit by natural calamities (geologic


hazards, floods, typhoons, volcanic activity, etc.);

7. Areas with critical slopes;

8. Areas classified as prime agricultural lands;

9. Recharged areas of aquifers;


10. Water bodies characterized by one or any combination of the following
conditions;

a. tapped for domestic purposes

b. within the controlled and/or protected areas declared by


appropriate authorities

c. which support wildlife and fishery activities

11. Mangrove areas characterized by one or any combination of the


following conditions:

a. with primary pristine and dense young growth;

b. adjoining mouth of major river systems;

c. near or adjacent to traditional productive fry or fishing grounds;

d. which act as natural buffers against shore erosion, strong winds


and storm floods;

e. on which people are dependent for their livelihood.

12. Coral reef, characterized by one or any combination of the following


conditions:

a. with 50% and above live coralline cover;

b. spawning and nursery grounds for fish;

c. which act as natural breakwater of coastlines.

Projects not included in the foregoing enumeration were considered non-critical to the
environment and were entitled to the CNC.

The foregoing considerations indicate that the grant or denial of an application for
ECC/CNC is not an act that is purely ministerial in nature, but one that involves the
exercise of judgment and discretion by the EMB Director or Regional Director, who must
determine whether the project or project area is classified as critical to the environment
based on the documents to be submitted by the applicant.

The petitioner maintains that RD Lipayon already exercised his discretion in its case
when he made his finding that the application substantially complied with the procedural
requirements for review. As such, he was then obliged to issue the CNC once the
petitioner had submitted the required certifications.

The petitioner errs on two grounds.

Firstly, RD Lipayon had not yet fully exercised his discretion with regard to the CNC
application when he made his finding. It is clear that his finding referred to the
"procedural requirements for review" only. He had still to decide on the substantive
aspect of the application, that is, whether the project and the project area were
considered critical to the environment. In fact, this was the reason why RD Lipayon
required the petitioner to submit certifications from the various government agencies
concerned. Surely, the required certifications were not mere formalities, because they
would serve as the bases for his decision on whether to grant or deny the application.
Secondly, there is no sufficient showing that the petitioner satisfactorily complied with
the requirement to submit the needed certifications. For one, it submitted no certification
to the effect that the project site was not within a critical slope. Also, the PHIVOLCS’s
certification showed that the project site had experienced an Intensity VII earthquake in
1990, a fact that sufficed to place the site in the category of "areas frequently visited
and/or hard-hit by natural calamities." Clearly, the petitioner failed to establish that it had
the legal right to be issued the CNC applied for, warranting the denial of its application.

It is not amiss for us to observe, therefore, that the petitioner grossly misunderstood the
nature of the remedy of mandamus. To avoid similar misunderstanding of the remedy
hereafter, a short exposition on the nature and office of the remedy is now appropriate.

The writ of mandamus is of very ancient and obscure origin. It is believed that the writ
was originally part of the class of writs or mandates issued by the English sovereign to
direct his subjects to perform a particular act or duty.28 The earliest writs were in the
form of letters missive, and were mere personal commands. The command was a law in
itself, from which there was no appeal. The writ of mandamus was not only declaratory
of a duty under an existing law, but was a law in itself that imposed the duty, the
performance of which it commanded.29 The King was considered as the fountain and
source of justice, and when the law did not afford a remedy by the regular forms of
proceedings, the prerogative powers of the sovereign were invoked in aid of the
ordinary powers of the courts.30

A judicial writ of mandamus, issued in the King’s name out of the court of King’s Bench
that had a general supervisory power over all inferior jurisdictions and officers, gradually
supplanted the old personal command of the sovereign.31 The court of King’s Bench,
acting as the general guardian of public rights and in the exercise of its authority to
grant the writ, rendered the writ of mandamus the suppletory means of substantial
justice in every case where there was no other specific legal remedy for a legal right,
and ensured that all official duties were fulfilled whenever the subject-matter was
properly within its control.32 Early on, the writ of mandamus was particularly used to
compel public authorities to return the petitioners to public offices from which they had
been unlawfully removed.33

Mandamus was, therefore, originally a purely prerogative writ emanating from the King
himself, superintending the police and preserving the peace within the realm. 34 It was
allowed only in cases affecting the sovereign, or the interest of the public at large. 35 The
writ of mandamus grew out of the necessity to compel the inferior courts to exercise
judicial and ministerial powers invested in them by restraining their excesses,
preventing their negligence and restraining their denial of justice.36

Over time, the writ of mandamus has been stripped of its highly prerogative features
and has been assimilated to the nature of an ordinary remedy. Nonetheless, the writ
has remained to be an extraordinary remedy in the sense that it is only issued in
extraordinary cases and where the usual and ordinary modes of proceeding and forms
of remedy are powerless to afford redress to a party aggrieved, and where without its
aid there would be a failure of justice.37

The writ of mandamus has also retained an important feature that sets it apart from the
other remedial writs, i.e., that it is used merely to compel action and to coerce the
performance of a pre-existing duty.38 In fact, a doctrine well-embedded in our
jurisprudence is that mandamus will issue only when the petitioner has a clear legal
right to the performance of the act sought to be compelled and the respondent has an
imperative duty to perform the same.39 The petitioner bears the burden to show that
there is such a clear legal right to the performance of the act, and a corresponding
compelling duty on the part of the respondent to perform the act.40
A key principle to be observed in dealing with petitions for mandamus is that such
extraordinary remedy lies to compel the performance of duties that are purely ministerial
in nature, not those that are discretionary.41 A purely ministerial act or duty is one that
an officer or tribunal performs in a given state of facts, in a prescribed manner, in
obedience to the mandate of a legal authority, without regard to or the exercise of its
own judgment upon the propriety or impropriety of the act done. The duty is ministerial
only when its discharge requires neither the exercise of official discretion or judgment. 42

The petitioner's disregard of the foregoing fundamental requisites for mandamus


rendered its petition in the RTC untenable and devoid of merit.

WHEREFORE, the Court DENIES the petition for review on certiorari; and ORDERS the
petitioner to pay the costs of suit.

SO ORDERED.

G.R. No. 189290

REPUBLIC OF THE PHILIPPINES represented by the ENVIRONMENTAL


MANAGEMENT BUREAU, REGION VII, and NOEL C. EMPLEO, Regional
Director, Petitioners
vs.
O.G. HOLDINGS CORPORATION, represented by its Chairman, MR. FREDERICK
L. ONG, Respondent

DECISION

MARTIRES, J.:

At the urging of the Republic, for review1 under Rule 45 of the Rules of Court are the
Decision2 and the Resolution3of the Court of Appeals (CA) in CA-G.R. SP No. 02530,
dated 11 June 2009 and 10 August 2009, respectively, whereby the appellate court
nullified and set aside the Orders dated 6 July 2006 4 and 7 February 2007,5 of
petitioner, the Environmental Management Bureau, Region 7 (EMB-Region 7),
Department of Environment and Natural Resources (DENR), in EIA Cases Nos. VII-
2006- 06-019 and VII-2007-02-0 10.6 With the orders, petitioner suspended the
Environmental Compliance Certificate (ECC) it had previously issued to the beach
resort project of respondent O.G. Holdings Corporation (0. G. Holdings).7 The
suspension was triggered by respondent's violation of Presidential Decree (P.D.) No.
1586, or the Philippine Environmental Impact Statement System, having failed to
comply with a condition set forth in the certificate. With the suspension, petitioner
effectively prohibited the operations and further development of the beach resort. The
CA ruled that this was in grave abuse of discretion.

We required a comment8 and a reply.9 The parties complied.10

The Facts

The records narrate:

Respondent's beach resort project, the Panglao Island Nature Resort, comprising
3.0709 hectares,11 is located at Barangay Bingag, Municipality of Dauis, Panglao Island,
Bohol Province.12 In the resort are native-style cottages, a hotel, a clubhouse, a man-
made islet with a lifeguard post, a shed, and benches. It boasts of amenities such as a
business center, function rooms, sports and recreational facilities, swimming pools, a
spa, wildlife sanctuaries, a marina, a full-service dive shop and novelty shops, and a
beachfront bar and restaurant.13
On 26 July 2002, EMB-Region 7 issued an Environmental Compliance
Certificate (ECC) to the Panglao Island Nature Resort Corporation for the beach resort
project owned and operated by O.G. Holdings, with Frederick L. Ong as President
(Ong).14 The ECC reads:

ENVIRONMENTAL COMPLIANCE CERTIFICATE

(07 02 07-26 0226 402)

The ENVIRONMENTAL MANAGEMENT BUREAU (EMB) of the Department of


Environment and Natural Resources (DENR), Region VII hereby grants this
ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC) to PANGLAO ISLAND
NATURE RESORT CORPORATION for its Beach Resort project located in Barangay
Bingag, Dauis, Panglao Island, Bohol after complying with the Environmental Impact
Assessment (EIA) requirements pursuant to P.D. 1586.

This Certificate is being issued subject to the following conditions:

1. That this Certificate is issued as one of the requirements for any permit issuances by
other concerned agencies and is valid only for the beach resort project which covers a
land area of three point zero seven zero nine (3.0709) hectares covered by OCT No.
75531 consisting of the following facilities/amenities;

a. Thirteen (13) units bungalows;

b. Seven (7) units duplex cottage;

c. Three (3) units quadruplex cottages;

d. Swimming pool;

e. Lobby and Restaurant;

f. Library and Function Room;

g. Gazebo and Fitness Gym; and

h. Two-hundred (200) square meter man-made island in the foreshore area.

2. That it shall be the responsibility of the proponent to secure the necessary


permits/clearances and coordinate with concerned agencies to include, but not limited
to the following:

2.1. Department of Health (DOH)-Region 7 and/or Municipal Health Office on provision


of sewage treatment facilities and Sanitary Permits;

2.2. DENR-PENRO/CENRO on Foreshore Lease/Other Lawful Purposes Permit in case


of any development in the foreshore area;

2.3. Municipal Engineer's Office on Drainage Clearance taking into consideration the
provision of catch basins to prevent siltation/turbidity of seawater;

2.4. Municipal Building Official on Structural Stability and Building Permit;

2.5. Fisheries and Aquatic Resources Management Council Clearance, for development
on-shore;
2.6. Municipal Government on Solid Waste Management, which shall effectively
implement on solid waste management scheme, segregation and recycling of solid
waste prior to disposal in a manner that does not create nuisance or land pollution.

That it shall be the responsibility of the respective government agencies to monitor the
herein stated permits/clearances;

3. That the project proponent shall be held responsible [for] damages incurred to life,
property, and environment brought about by the implementation of the project.
Aggrieved parties shall be justly and timely compensated. Likewise, the proponent shall
set aside One Hundred Thousand Pesos (₱100,000.00) representing as Environmental
Guarantee Fund (EGF) for any environmental impacts arising from the project
implementation. This shall be maintained all throughout the duration of the project;

4. That buffer strip of appropriate tree species either in the form of tree parks or
landscaping should be planted on any applicable areas and shall be maintained all
throughout the duration of the project;

5. That overflow septic tanks from cottages should be pumped to the Centralized
Sewage Treatment Facility and effluent should conform with the standards set forth in
the Implementing Rules and Regulations of P.D. 984;

6. That a marine study should be conducted within the primary impact area and a report
should be submitted to this Office thirty (30) days from receipt of this Certificate;

7. That information signs prohibiting coral collection should be posted on strategic


locations of the project area;

8. That any expansion from the existing approved operation shall be subject to [other]
EIA requirements;

9. That the project shall exit the coverage of EIS System once all the conditions have
been complied with, and henceforth all regulatory activities shall be conducted by those
regulatory agencies concerned, to include but not limited to those that are indicated in
condition No. 2 of this Certificate. EMB, DENR-Region 7 shall be furnished a copy of the
Monitoring Inspection Report of the said agencies;

10. That an on-the-spot monitoring may be conducted by DENRPENRO concerned


and/or EMB-Region VII anytime in coordination with concerned groups;

11. That transfer of ownership of this project carries the same conditions as contained in
this Certification for which written notification should be made by herein grantee to this
Office within fifteen (15) days from such transfer; and

THIS ECC SHOULD NOT BE MISCONSTRUED AS A PERMIT, RATHER A SET OF


CONDITIONALITIES WHICH SHOULD BE FOLLOWED BY THE PROJECT
PROPONENT IN ALL STAGES OF THE PROJECT IMPLEMENTATION IN ORDER TO
MITIGATE POTENTIAL ADVERSE IMPACTS [ON] THE ENVIRONMENT.

Non-Compliance [with] any of the above stipulations will be sufficient cause for the
suspension or cancellation of this Certificate and/or imposition of a fine in an amount not
to exceed Fifty Thousand Pesos (₱50,000.00) for every violation thereof, at the
discretion of this Office (Section 9 of P.D. 1586).

Given this 26th day of July 2002.

Approved by:
AUGUSTUS L. MOMONGAN

Regional Executive Director

Recommending Approval:

BIENVENIDO L. LIPAYON

Regional Director

Conforme:

FREDERICK L. ONG

President and General Manager

Thereafter, O.G. Holdings proceeded to develop and operate the project, incurring an
unspecified "millions of pesos" in the process.15

On 3 December 2003, EMB-Region 7 monitored the project for compliance. It found


three violations of the ECC: (a) non-compliance with its Conditions Nos. 2.2, 3, and 6, or
the requirements that the project obtain a foreshore lease, (b) that it establish an
Environmental Guarantee Fund, and (c) that it submit a marine study on the project's
primary impact area.16 Consequently, the bureau issued a Notice of Violation, dated 15
March 2004.17

The following month, on 16 April 2004, EMB-Region 7 again conducted a compliance


monitoring, and found that ECC again failed to comply with Conditions Nos. 2.2 and
6.18 On 13 May 2004, it issued a Notice of Violation19 to respondent Ong, President and
General Manager of Panglao Island Nature Resort Corporation 20 and Chairperson of
O.G. Holdings,21 with an invitation to a technical conference on 16 June 2004 at the
bureau's office in Mandaue City.22 EMB-Region 7 Regional Director Bienvenido L.
Lipayon signed the notice.23

At the conference, O.G. Holdings disclosed the difficulties it was having in securing a
foreshore lease for the beach resort project. Particularly, it stated that the Municipality of
Dauis could not give its favorable endorsement for the lease, as an existing ordinance,
Municipal Ordinance No. 03-1991,24 prohibited any development on the municipal
shorelines. Nonetheless, it made a commitment that it would file "appropriate
documents"25 on the foreshore lease and marine study.

On 1 March 2005, O.G. Holdings submitted a marine study, finally complying with ECC
Condition No. 6.26

The following day, 2 March 2005, EMB-Region 7 held yet another monitoring and noted
the continuing violation of ECC Condition No. 2.2, viz, the securing of a foreshore
lease.27 At this point, it bears mentioning that the bureau had also received a complaint
from a local fisherfolk organization, the Bingag Little Fishermen's Organization, that
O.G. Holdings was cordoning the shoreline at the project site, affecting the right of way
of the fisherfolk.28

On 28 April 2005, EMB-Region 7 again sent O.G. Holdings a Notice of Violation with
respect to ECC Condition No. 2.2.29 O.G. Holdings replied, in a letter sent on 10
November 2005, that compliance with the condition was legally impossible. It blamed
the local government unit for allegedly failing to act 30 on its request that the Panglao
Island Nature Resort Corporation be given a favorable endorsement for a foreshore
lease. It informed EMB-Region 7 that it had filed, instead, an application with the
Philippine Reclamation Authority (PRA) for the special registration of a man-made
island located within the project. O.G. Holdings prayed that the bureau consider the
application with the PRA as substantial compliance with ECC Condition No. 2.2. In
support of this prayer, it submitted a letter,31 dated 25 May 2005, issued by PRA
General Manager and Chief Executive Officer Teodorico C. Taguinod acknowledging
receipt of said application for the registration of O.G. Holdings' man-made island, and
advising that PRA's requirements must be met.32

On 4 July 2006, EMB-Region Ts Environmental Impact Assessment (EIA) Division


recommended the suspension of the ECC issued to the Panglao Island Nature Resort
Corporation. Incidentally, on the following day, the Department of Tourism issued a
Class "AA" accreditation to the beach resort.33

The Orders of the Environmental Management Bureau

Acting on EIA Division's recommendation, EMB-Region 7 suspended the subject ECC


in an order,34 dated 6 July 2006, and signed by petitioner Alan C.
Arranguez (Arranguez), Officer-in-Charge, Office of the Regional Director, EMB-Region
7, which reads:

WHEREFORE, viewed from the light of the foregoing and pursuant to Section 6.0 (b) of
DAO 96-37, the Environmental Compliance Certificate (ECC 07 01 04-03 0054 402)
issued to Panglao Island Nature Resort is SUSPENDED for failure of the proponent to
submit foreshore lease agreement and/or permit from the Philippine Reclamation
Authority for the foreshore area of the project.

The proponent is directed to CEASE AND DESIST from undertaking project expansion
and other developments within the project area.

The Chief of the Environmental Impact Assessment Division or his duly authorized
representative is directed to implement this Order within seventy-two (72) hours and to
submit report within forty-eight (48) hours from its execution stating the proceedings
taken thereon.

SO ORDERED.

(Sgd.) ALAN C. ARRANGUEZ


OIC, Regional Director

In a letter dated 14 July 2006, O.G. Holdings moved for reconsideration. It pleaded that
the suspension of the ECC would hinder its application with the PRA, as it required an
existing ECC for the special registration of the man-made island.35

The plea prompted the Bohol staff of EMB-Region 7 to visit the project site on 30
August 2006. The staff reported that there were no reclamation activities at the site.
O.G. Holdings was nevertheless advised "not to take any activity over the area." 36

However, local fisherfolk reported to the bureau that a guardhouse was being built at
the resort, and that its foundation was already finished. The fisherfolk also reported that
O.G. Holdings was cordoning seawater at the project site. On 18 January 2007, EMB-
Region 7 investigated these reports, during which O.G. Holdings manifested that it
would no longer proceed with the construction of the guardhouse but that its cordoning
activities would continue in order to maintain the security of resort guests, following
instructions from the Department of Tourism.37

On 7 February 2007, again, via Officer-in-Charge Arranguez, EMB-Region 7 issued the


second suspensive order.38This time, the order included as among the beach resort
project's violations the construction of a guardhouse within the foreshore area. The
order reads, in part:

We painstakingly reviewed the records as well as laws, rules and regulations in order to
judiciously resolve the case. As per record, the proponent has not secured yet a tenurial
instrument from the DENR nor has a permit from the Philippine Reclamation Authority
(PRA). To date, proponent has failed to submit necessary permit/clearance relevant to
the foreshore area. From the date of the issuance of the Environmental Compliance
Certificate (ECC) until today, a considerable length of time of more than two (2) years
had lapsed for the proponent to process and secure such permit. The proponent has
made a written commitment several times to comply [with] the same but it was not
rectified and complied [with]. The act of continuous violation can be interpreted as
seeming misrepresentation or deliberate intent to thwart the rules. The same should be
taken against the proponent. The provision of Section 6.0 (b) of DENR Administrative
Order No. 96-37 otherwise known as the implementing rules of EIS System Act
punishes violation of ECC conditions. Considering the infraction of the proponent
through the years, it would be fitting to impose a stiffer penalty. Further, the construction
of the guardhouse and the laying of its foundation within the foreshore area is an
apparent violation of the previous order of this Office and DENR Administrative Order
No. 2003-30. Finally, in view of the suspension of the Environmental Compliance
Certificate (ECC), the project is technically operating without an ECC. Under existing
policy, a project without an ECC is prohibited from further implementing /operating the
same. However, the Office in the spirit of due process, gives respondent proponent the
opportunity to submit the required tenurial instrument over the foreshore area in
compliance [with] the ECC condition, and other pertinent documents which will be made
as the basis for the imposition of appropriate penalty including the cessation of project
operation.

WHEREFORE, viewed from the light of the foregoing, this Office orders respondent
proponent to submit the required tenurial instrument for the foreshore area and other
documents relevant thereto within seventy-two (72) hours from receipt hereof, subject to
the evaluation and review of this Office. If found compliant, the Order suspending the
efficacy of the ECC will be lifted, however, if the documents will be found insufficient,
the CEASE AND DESIST ORDER (CDO) will be implemented immediately by this
Office.

The Chief of the Environmental Impact Assessment Division or his duly authorized
representative is directed to implement this Order within seventy two (72) hours and to
submit report within forty eight (48) hours from its execution stating the proceedings
taken thereon.

SO ORDERED.

(Sgd.) ALAN C. ARRANGUEZ


OIC, Regional Director

In fine, the order stated that unless O.G. Holdings submit a "tenurial instrument for the
foreshore area," e.g., a foreshore lease agreement, within the specified seventy-two
hours, the ECC for the Panglao Island Nature Resort Corporation would be suspended
immediately, with the suspension resulting in the disallowance of the operations and
further development of the resort.

O.G. Holdings no longer moved for the reconsideration of this second order.

The Petition for Certiorari before the CA


Instead, it filed a special civil action under Rule 65 of the Rules of Court before the CA.
The petition for certiorari,39dated 22 February 2007, and docketed as CA-G.R. CEB SP
No. 02530,40 named as respondents petitioners EMB-Region 7 and Officer-in-Charge
Arranguez, with the latter impleaded in his official and personal capacities. The petition
for certiorari prayed for the annulment of the 6 July 2006 and 7 February 2007 orders
and claimed an "extreme urgency" in the issuance of a temporary restraining order and
writ of preliminary injunction41 to restrain the implementation of the orders. The petition
also asked that "a condition"42 in the subject ECC be annulled and/or modified.

At the outset, the petition for certiorari insisted that certiorari was the proper remedy
against the suspension of the project's ECC. Appealing the suspensive orders to the
Secretary of the DENR, it argued, would not stay the subject suspension. The petition
claimed that four exceptions existed to prevent the application of the principle of
exhaustion of administrative remedies, to wit: (1) to require exhaustion of administrative
remedies would be unreasonable; (2) the rule does not provide a plain, speedy and
adequate remedy; (3) there are circumstances indicating the urgency of judicial
intervention, as when public interest is involved; and (4) there is irreparable injury.
Anent the fourth point, the petition claimed that cancellations of local and foreign guest
bookings, as a consequence of the suspension, were harming the economic well-being
of O.G. Holdings, its employees, and the Province of Bohol.

To impute grave abuse of discretion on EMB-Region 7 and Arranguez, the petition


claimed that they had imposed "an impossible condition [to be complied with] within an
impossible seventy two (72) hours."43 It pointed out that Condition No. 2.2 came into
play only when there were construction or development activities within the beach resort
project's foreshore area. Thus, the petition now contended that, first, the resort's man-
made island was the only reason why EMB-Region 7 and Arranguez were insisting on a
foreshore lease; and, second, the man-made island was not a construction or
development activity on the foreshore area, but a reclamation project located "some
ninety (90) meters offshore from the resort."44 Hence, the petition went on to argue,
there was no basis to require a foreshore lease for the man-made island and the entire
beach resort project. And even if it were assumed, arguendo, that a foreshore lease
was required for the man-made island, it was illogical and unjust of EMB-Region 7 and
Arranguez to have ordered the stoppage of the operations of the entire beach resort
project considering that its other components were located outside its foreshore area.

The petition went on to claim that O.G. Holdings attempted in good faith to substantially
comply with Condition No. 2.2, viz, by applying for the special registration, as reclaimed
land, of the man-made island. Unfortunately, EMB-Region 7 and Arranguez made the
application's approval impossible when they suspended the beach resort project's ECC.
The following passage expresses the petition's interesting theory on this score:

In effect, while initially Respondents [EMB-Region 7 and Arranguez] were open to


admitting the PRA permit as substitute compliance for the foreshore lease agreement,
they (respondents) have nevertheless subsequently made it impossible for Petitioner to
secure the same since it has suspended its ECC instead of waiting for the processing
and release of the PRA permit. In short, Respondents demand something from
Petitioner but at the same time have made it impossible for Petitioner to comply with the
same by putting obstacles in every step of the way in Petitioner's effort to comply with
its impossible condition.45

In fine, the petition for certiorari concluded that EMB-Region 7 and Arranguez acted in
grave abuse of discretion amounting to lack of or excess of jurisdiction in suspending
the subject ECC.

The Ruling of the CA


The CA found merit in the prayer for the issuance of the extraordinary writ of certiorari.
The dispositive portion of the CA decision reads:

WHEREFORE, in light of all the foregoing, the petition is hereby GRANTED. The orders
dated July 6, 2006 and February 7, 2007 issued by OIC, Regional Director, Alan
Arranguez, are hereby ANNULLED and SET ASIDE. Petitioner is hereby relieved of
complying with condition No. 2.2, and in lieu thereof, to submit proof of registration of
the reclaimed off-shore area as soon as it has been granted by the PRA in due
course.46

The CA agreed with O.G. Holdings that it would be unreasonable to require exhaustion
of administrative remedies in the case. It characterized Condition No. 2.2 of the ECC as
"presently unattainable"47 and the suspension of the ECC as arbitrary.48 EMB-Region 7
and Arranguez, the appellate court held, had thus erred in suspending the ECC. Such
error was no mere error of judgment, but of jurisdiction, and more so because the
suspension also rendered futile O.G. Holdings' pending application with the PRA. 49 The
CA said: "[P]etitioner [O.G. Holdings] was abruptly robbed of its opportunity to comply
therewith within the legal parameters afforded by applicable laws on the matter."50

Interestingly, the appellate court also opined51 that the required foreshore lease or
permit may be dispensed with. There had been a "gross misappreciation of facts," 52 the
CA said, as the resort's man-made island was located offshore.53 Thus, there was no
need for O.G. Holdings to secure a foreshore lease. 54 We quote the CA's discussion on
this score, if only so that the decision under review may speak for itself: 55

Be that as it may, this Court is of the opinion that condition No. 2.2 of the ECC may be
dispensed with in view of the fact that the islet for which respondents sought the
petitioner to secure a tenurial document, is, as found by Deputy Public Land Inspector
Alfredo Galarido, within an OFFSHORE AREA and not on FORESHORE AREA; hence,
for all legal intents, there is no need to secure the required foreshore lease.

The definition of the term "FORESHORE LAND" as discussed in the case of Republic
vs. CA, et al, is instructive, thus:

The strip of land that lies between the high and low water marks and that is alternately
wet and dry according to the flow of the tide." [Sic] (Words and Phrases, "Foreshore")

"A strip of land margining a body of water (as a lake or stream); the part of a seashore
between the low-water line usually at the seaward margins of a low-tide terrace and the
upper limit of wave wash at high tide usually marked by a beach scarp or
berm"(Webster's Third New International Dictonary.)"

A perusal of the records would clearly show that, indeed, the islet or the man-made
island is found on the offshore area fronting the resort, as can be clearly seen in the
pictures attached to the records. Off-shore as defined in Webster dictionary refers to
seaward or at a distance from the shore. [citations omitted]

The appellate court observed that even if it were to be assumed, for the sake of
argument, that the man-made island was a foreshore development, securing a lease or
permit for the same would still not be possible, given the municipal proscription against
such developments. On O.G. Holding's application with the PRA, the CA then declared
that such application was made in 0.G. Holding's "desire to comply" with Condition No.
2.2; with the PRA application cast in such light, the CA concluded that it was "unjust and
inequitable" to insist on a foreshore lease for the beach resort project even after its ECC
had been suspended. Finally, the CA stressed that millions of pesos had been spent on
the Panglao Island Nature Resort.
In the main, the CA ruled that EMB-Region 7 and Arranguez had acted with grave
abuse of discretion. EMB-Region 7 moved for reconsideration, but it was denied in a
resolution dated 11 August 2009.56

The Petition for Review before this Court

The Court is now faced with the present petition for review, filed under Rule 45 of the
Rules of Court, imputing errors on the subject ruling, viz:57

I. A writ of certiorari will not lie in the absence of grave abuse of discretion.

II. Factual Issues are not proper in a petition for certiorari.

ISSUE

The issue is whether the appellate court reversibly erred in annulling and setting aside
the 6 July 2006 and 7 February 2007 Orders of the Environmental Management
Bureau. Said differently, the issue is whether the CA reversibly erred in ruling that EMB-
Region 7 and Arranguez had acted in grave abuse of discretion amounting to lack of or
excess of jurisdiction in suspending the subject ECC, effectively disallowing the
operations and further development of the Panglao Island Nature Resort. Put succinctly,
the issue is whether the CA reversibly erred in granting O.G. Holdings' Petition
for Certiorari.

THE RULING OF THE COURT

The petition for review is impressed with merit. There are obvious errors in the assailed
ruling.

The CA erred in granting 0. G.


Holdings' petition when there was a
failure to move for reconsideration
before seeking certiorari.

A motion for reconsideration is an indispensable condition before an aggrieved party


can resort to the special civil action for certiorari under Rule 65 of the Rules of
Court.58 This well-established rule is intended to afford the public respondent an
opportunity to correct any actual or fancied error attributed to it by way of re-
examination of the legal and factual aspects of the case.59

O.G. Holdings no longer moved for the reconsideration of the 7 February 2007 order. To
assail the order, it instead filed posthaste a petition for certiorari with the appellate court.
Petitioners EMB-Region 7 and its then Officer-in-Charge Arranguez were thus deprived
of the opportunity to rectify or, at the least, address the errors of jurisdiction that O.G.
Holdings imputed against them before the CA.

While there are well-recognized exceptions to the rule,60 none is said to be present
here. For one thing, O.G. Holdings did not specifically plead any of them in its petition
for certiorari. It pleaded before the appellate court that it would be "futile" to move for the
reconsideration of the 7 February 2007 order as, allegedly, EMB-Region 7 and
Arranguez had "already failed or refused to directly act on [O.G. Holdings'] letter for
reconsideration of [the] previous July 6, 2006 Order, ... "61

We are not persuaded, it being speculative. At this point, the petition for certiorari was
already fatally defective, and the CA erred in granting it.
The CA erred in granting 0. G.
Holdings' petition when they had
failed to exhaust available
administrative remedies be/ ore
seeking certiorari.

The doctrine of exhaustion of administrative remedies requires that resort must first be
made with the appropriate administrative authorities in the resolution of a controversy
falling under their jurisdiction before the same may be elevated to the courts for review.
If a remedy within the administrative machinery is still available, with a procedure
pursuant to law for an administrative officer to decide a controversy, a party should first
exhaust such remedy before going to court.62

This doctrine closely echoes the reason behind the rule providing that before resort to
the special civil action of certiorari is allowed, a motion for reconsideration should first
be filed with the public respondent concerned. Exhaustion of administrative remedies is
obliged pursuant to comity and convenience which in turn impel courts to shy away from
a dispute until the system of administrative redress has been completed and complied
with.63 The issues that an administrative agency is authorized to decide should not be
summarily taken away from it and submitted to a court without first giving the agency
the opportunity to dispose of the issues.64

O.G. Holdings failed to abide by this doctrine. Administrative remedies existed against
the suspension of the subject ECC, made available via DENR Administrative Order No.
30, Series of 2003 (A.O. No. 30), which was prevailing at the time of the suspensive
orders. A.O. No. 30 provides:

Section 6. Appeal

Any party aggrieved by the final decision on the ECC/CNC applications may, within 15
days from receipt of such decision, file an appeal on the following grounds:

a. Grave abuse of discretion on the part of the deciding authority, or

b. Serious errors in the review findings.

The DENR may adopt alternative conflict/dispute resolution procedures as a means to


settle grievances between proponents and aggrieved parties to avert unnecessary legal
action. Frivolous appeals shall not be countenanced.

The proponent or any stakeholder may file an appeal to the following:

DecidingAuthority Where to file the appeal


EMB Regional Office Director Office of the EMB Director
EMB Central Office Director Office of the DENR Secretary
DENR Secretary Office of the President

O.G. Holdings thus had the opportunity to file an administrative appeal on the
suspension of the beach resort project's ECC, beginning with the Office of the EMB
Director. Indeed, the administrative machinery afforded even an appeal to the Office of
the President, but O.G. Holdings did not avail of such.

It might be argued that Section 6, in A.O. No. 30 applied only to final decisions on
applications for the issuance of an ECC or CNC (Certificate of Non-Coverage), and not
to the suspension of an ECC that had already been issued. However, the 2013 case
of Special People, Inc. Foundation v. Canda, et al.65 addresses this argument. The
petitioner therein had applied for a CNC for its water-resource development and
utilization project in the Province of Bohol. In 2003, the EMB Regional Director
concerned declared the location of the project to be within an environmentally critical
area, hence not entitled to the CNC applied for. To assail the EMB Regional Director's
ruling, similar to the present case, the petitioner filed a special civil action before the
Regional Trial Court, a petition for mandamus. The trial court dismissed the petition,
prompting the petitioner's appeal before this Court. We dismissed the appeal for the
reason, among others, that petitioner sought certiorari before exhausting all available
administrative remedies. In our discussion, we highlighted the general rule on where to
appeal the decisions and actions of the EMB Regional Directors:

The records show that the petitioner failed to exhaust the available administrative
remedies. At the time RD Lipayon denied the petitioner's application for the CNC,
Administrative Order No. 42 dated November 2, 2002 had just vested the authority to
grant or deny applications for the ECC in the Director and Regional Directors of the
EMB. Notwithstanding the lack of a specific implementing guideline to what office the
ruling of the EMB Regional Director was to be appealed, the petitioner could have been
easily guided in that regard by the Administrative Code of 1987, which provides that the
Director of a line bureau, such as the EMB, shall have supervision and control over all
division and other units, including regional offices, under the bureau. Verily, supervision
and control include the power to "review, approve, reverse or modify acts and decisions
of subordinate officials or units." Accordingly, the petitioner should have appealed the
EMB Regional Director's decision to the EMB Director, who exercised supervision and
control over the former.66 [citations omitted]

Certainly, the doctrine of exhaustion of administrative remedies may be disregarded in


certain instances;67 as has been noted, O.G. Holdings claimed before the appellate
court that four exceptions existed in its case to prevent the doctrine from being applied
to its petition for certiorari. Yet in the petition for certiorari, we observe that O.G.
Holdings failed to discuss, let alone prove, how public interest had any bearing in its
case. Neither did it sufficiently prove how the suspension of the subject ECC would
have caused irreparable injury. On this score, O.G. Holdings merely alleged that
cancelled guest bookings, allegedly due to the suspension of the project's ECC, would
harm its economic well-being as well as that of its employees and the Province of
Bohol. Indeed, O.G. Holdings did not even present proof that the vaunted cancellations
were in fact done; and it failed to describe in monetary terms the alleged losses from
said cancellations.

The claims that an administrative appeal of the suspensive orders would not be the
plain, speedy, and adequate remedy, and that to require exhaustion of administrative
remedies would be unreasonable are closely intertwined with the petition for certiorari's
principal claim that EMB-Region 7 and Arranguez had committed grave abuse of
discretion.

The CA erred in making factual


findings in a certiorari proceeding.

The failure to exhaust administrative remedies in this case partakes of a particular


prominence when we consider the factual matters that O.G. Holdings brought before the
appellate court on certiorari.

Factual issues are not a proper subject for certiorari, which is limited to the issue of
jurisdiction and grave abuse of discretion.68 Yet to argue grave abuse of discretion, O.G.
Holdings presented the appellate court with factual matters that do not appear, at least
on record, to have been shared or even passed upon by EMB Region-7. The following
passage from the petition for certiorari is worthy of quote as it speaks for itself.

Petitioner's Resort is located atop a cliff facing the Bohol Strait and Maribojoc Bay, at
the foot of such cliff is a very little foreshore area which makes any permanent
development in said area not only unsuitable, but also impractical. Besides, Municipal
Ordinance No. 03-1991 of the Municipality of Dauis, where the Resort is located,
prohibits any foreshore development in the Municipality. For these reasons, Petitioner
has never made any development in the foreshore area within the Resort. Since the
requirement under Condition No. 2.2 of Petitioner's ECC, that is-to secure a foreshore
lease/other lawful purposes permit becomes operative only once Petitioner should make
"any development in the foreshore area," there is obviously no need for Petitioner to
comply with said requirement since as stated earlier, Petitioner has never made any
permanent development in the foreshore area of its Resort. [underlining provided] 69

Elsewhere in the petition, 0.G. Holdings described the man-made island as an


"islet,"70 whereas EMB-Region 7 had identified it in the subject ECC as an
"island."71 O.G. Holdings' claim that it has "never made any development in the
foreshore area" also flies in the face of EMB-Region 7's own finding, stated in its 7
February 2007 order, that O.G. Holdings had constructed a guardhouse and had laid its
foundation within the foreshore area of the resort.72

Yet, following O.G. Holdings' lead, the CA proceeded to declare that the man-made
island was an offshore development and hence ruled that the island was not to be
covered by the foreshore lease requirement set forth in Condition No. 2.2 of the ECC.
Admittedly, the CA arrived at the factual premise based on "pictures" and on the alleged
finding of a deputy public land inspector. But these are insufficient proof. The CA did not
identify the kind of "pictures" these were such that it was persuaded to pronounce, in
a certiorari proceeding, a rather technical finding of fact. From which angle were the
pictures taken or drawn? Were they cartographic, satellite images, or photographic-of
which there are two kinds, digital and non-digital. Perhaps these decisive pictures were
artistic representations, rendered by hand in graphite or ink, but the CA did not say. As
to its reliance on the alleged factual finding of the deputy land inspector, suffice it to say
that even if it were to be assumed, arguendo, that the man-made island had indeed
been built offshore, as allegedly found by the land inspector in the fulfillment of the
unique mandate of his office, such finding should not be taken to mean that the EMB, in
the exercise of its own mandate under the Philippine Environmental Impact Statement
System, should automatically exempt the entire beach resort project from the need for a
foreshore lease, as set forth from the ECC it had issued.

The CA erred in this case in making factual findings in a certiorari proceeding-even if


O.G. Holdings had alleged a misappreciation of facts on the part of EMB-Region 7. As a
rule, misapplication of facts and evidence, and erroneous conclusions based on
evidence do not, by the mere fact that errors were committed, rise to the level of grave
abuse of discretion.73 Parenthetically, O.G. Holdings should have elevated its factual
issues on administrative appeal to the sound discretion of the DENR, the government
body entrusted with the regulation of activities coming under its special and technical
training and knowledge.74 As this Court held in the case of Acoba v. Court of Appeals:75

In a special civil action for certiorari, under Rule 65 of the 1997 Rules of Civil Procedure,
factual issues may not be brought before us. Here petitioner's submission, however,
shows that he is raising issues concerning alleged errors and misapprehensions of facts
committed by the Court of Appeals. These are not correctible by certiorari under Rule
65. The only question that may be raised in a petition for certiorari is whether the
respondent has acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction. It is not the office of a writ
of certiorari to correct errors of fact or law which the lower court may have committed.
An error of judgment committed by a court in the exercise of its legitimate jurisdiction is
not the same as grave abuse of discretion.

The CA erred in finding grave abuse


of discretion amounting to lack or
excess of jurisdiction in the
suspension of the subject ECC.

To recall, the CA found grave abuse of discretion, amounting to lack or excess of


jurisdiction, on the part of the EMB-Region 7 and Arranguez based on the theory that
their suspension of the subject ECC made O.G. Holdings' PRA application problematic.
We recall the theory, as follows:

O.G. Holdings was seeking to comply with Condition No. 2.2, of the beach resort
project's ECC, which was issued in 2002. But the compliance, i.e., obtaining a foreshore
lease or permit, was "legally impossible" due to an ordinance prohibiting foreshore
developments in the municipality. So in 2005, O.G. Holdings filed an application with the
PRA for the special registration, as reclaimed land, of its man-made island, and asked
that EMB-Region 7 consider the application as substantial compliance with Condition
No. 2.2.76 But in 2007, after noting 0.G. Holdings' continued violation of the ECC (for
failure to comply with Condition No.2.2), EMB-Region 7 suspended the ECC, prompting
O.G. Holdings to assert, on certiorari before the CA, that the suspension had rendered
impossible the approval of their PRA registration. O.G. Holdings emphasized that it
needed the registration for its substantial compliance with Condition No. 2.2, which
compliance, in turn, was pivotal in securing or rather, recovering the ECC for its beach
resort project. In fine, O.G. Holdings posited that it needed an ECC in order that it may
obtain an ECC. From the foregoing, O.G. Holdings theorized that EMB-Region 7 and
Arranguez had acted with grave abuse of discretion in suspending the ECC.

That the CA was convinced by this circuitous theory with its obviously flawed premises
is remarkable.

The flaws are two-fold. First. It is wrong to suppose that an application for the
registration of a man-made island, as reclaimed land, may substitute for a foreshore
lease agreement or permit. This same observation holds true even if the substitution
sought involved the approved registration. Incidentally, it bears mentioning that O.G.
Holdings' application for the man-made island was made under PRA Administrative
Order No. 2005-1, or the Rules and Procedures for Special Registration of
Unauthorized/Illegal Reclamation Projects.77

Certainly, the supposition would be acceptable were there a law or regulation


authorizing such a substitution. Unfortunately for O.G. Holdings, it failed to plead such
law or regulation in its petition for certiorari.

Second. Even if it were to be assumed, arguendo, that such law or regulation existed, it
is wrong to suppose that EMB-Region 7 and Arranguez had acted in grave abuse of
discretion simply because they had practically rejected O.G. Holdings' proposed
substitution for Condition No. 2.2. Indeed, the acceptance of the proposed substitution
still lay within the sound discretion of EMB-Region 7 and Arranguez.

For these reasons, the CA erred in ruling that EMB-Region 7 and Arranguez had acted
in grave abuse of discretion. Time and again we have held that a petition
for certiorari will prosper only if grave abuse of discretion is alleged and proved to
exist.78 Abuse of discretion is grave if it is so patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act
at all in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility.79
Here, we find no grave abuse of discretion on the part of EMB-Region 7 and Arranguez
when they suspended the ECC for the Panglao Island Nature Resort Corporation.
Indeed, we cannot even find mere abuse of discretion in the act, as it came on the heels
of a recommendation from the EIA Division and was provoked by O.G. Holdings'
continuous noncompliance with Condition No. 2.2 of the ECC. Such noncompliance is a
violation that the National Environmental Protection Council, now the Environmental
Management Bureau, was authorized to penalize under P.D. No. 1586, viz:

Section 9

Penalty for Violation

Any person, corporation or partnership found violating Section 4 of this Decree, or the
terms and conditions in the issuance of the Environmental Compliance Certificate, or of
the standards, rules and regulations issued by the National Environmental Protection
Council pursuant to this Decree shall be punished by the suspension or cancellation of
his/its certificate and/or a fine in an amount not to exceed Fifty Thousand Pesos
(₱50,000.000) for every violation thereof, at the discretion of the National Environmental
Protection Council.

With this penalizing law in existence, there is no basis to rule that EMB-Region 7 and
Arranguez had acted in excess or lack of jurisdiction.1âwphi1 We consider, also, that
EMB-Region 7 had issued several notices of violations to O.G. Holdings before it came
to the lawful decision to suspend the subject ECC for its noncompliance with a
condition. This indicates a considerable effort to resolve the violation judiciously and
prudently, without automatically resorting to the penalty provided therefor.

We also consider it strange that O.G. Holdings had found it expedient to pray, via its
petition for certiorari with the CA, for the annulment or modification of an unspecified
"condition"80 in the ECC, implicitly Condition No. 2.2. To include such a prayer in the
petition for certiorari was clearly a procedural error on O.G. Holdings' part. A.O. No. 30
provided for an administrative machinery for amending an existing ECC, viz:

8.3 Amending an ECC

Requirements for processing ECC amendments shall depend on the nature of the
request but shall be focused on the information necessary to assess the environmental
impact of such changes.

8.3.1. Requests for minor changes to ECCs such as extension of deadlines for
submission of post-ECC requirements shall be decided upon by the endorsing authority.

8.3.2. Requests for major changes to ECCs shall be decided upon by the deciding
authority.

8.3.3. For ECCs issued pursuant to an IEE or IEE checklist, the processing of the
amendment application shall not exceed thirty (30) working days; and for ECCs issued
pursuant to an EIS, the processing shall not exceed sixty (60) working days. Provisions
on automatic approval related to prescribed timeframes under AO 42 shall also apply for
the processing of applications to amend ECCs.

O.G. Holdings should thus have brought its concerns over Condition No. 2.2 to the
attention of this administrative machinery, and should have brought it at the first
instance, or upon the issuance of the ECC in 2002. That it did not do so again indicates
the prematurity of its petition for certiorari, and reflects badly on the appellate court,
which expressly "opined" in the decision under review that Condition No. 2.2 "may be
dispensed with."81 On this note, we also observe, that about five years had lapsed from
the issuance of the ECC before its suspension. All that time, it appears that the beach
resort project had been tolerated to operate without a foreshore lease agreement or
permit.

In fine, the CA erred in granting the petition for certiorari despite O.G. Holdings'
unjustified failure to exhaust the available administrative remedies for the suspension of
its beach resort project's ECC.

WHEREFORE, the foregoing premises considered, the Petition of the Republic


is GRANTED. There being no grave abuse of discretion amounting to excess or lack of
jurisdiction on the part of the Environmental Management Bureau, Region 7, and of
Alan C. Arranguez, Officer-in-Charge, Office of the Regional Director, EMB-Region 7, in
the issuance of the Orders dated 6 July 2006 82 and 7 February 2007, and in EIA Cases
Nos. VII-2006-06-019 and VII-2007-02-010, the Decision and the Resolution of the
Court of Appeals in CA-G.R. SP No. 02530 are hereby SET ASIDE. The 6 July 2006
and 7 February 2007 Orders of the EMB-Region 7 are ordered REINSTATED.

SO ORDERED.

REPUBLIC OF THE PHILIPPINES, represented by HON. HEHERSON T. ALVAREZ,


in his capacity as Secretary of the DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES (DENR), CLARENCE L. BAGUILAT, in his capacity
as the Regional Executive Director of DENR-Region XI and ENGR.
BIENVENIDO L. LIPAYON, in his capacity as the Regional Director of the
DENR-ENVIRONMENTAL MANAGEMENT BUREAU (DENR-EMB), Region
XI, petitioners, vs. THE CITY OF DAVAO, represented by BENJAMIN C. DE
GUZMAN, City Mayor, respondent.

DECISION
YNARES-SANTIAGO, J.:

Before us is a petition for review[1] on certiorari assailing the decision[2] dated May
28, 2001 of the Regional Trial Court of Davao City, Branch 33, which granted the writ of
mandamus and injunction in favor of respondent, the City of Davao, and against
petitioner, the Republic, represented by the Department of Environment and Natural
Resources (DENR). The trial court also directed petitioner to issue a Certificate of Non-
Coverage in favor of respondent.
The antecedent facts of the case are as follows:
On August 11, 2000, respondent filed an application for a Certificate of Non-
Coverage (CNC) for its proposed project, the Davao City Artica Sports Dome, with the
Environmental Management Bureau (EMB), Region XI. Attached to the application were
the required documents for its issuance, namely, a) detailed location map of the project
site; b) brief project description; and c) a certification from the City Planning and
Development Office that the project is not located in an environmentally critical area
(ECA). The EMB Region XI denied the application after finding that the proposed project
was within an environmentally critical area and ruled that, pursuant to Section 2,
Presidential Decree No. 1586, otherwise known as the Environmental Impact Statement
System, in relation to Section 4 of Presidential Decree No, 1151, also known as the
Philippine Environment Policy, the City of Davao must undergo the environmental
impact assessment (EIA) process to secure an Environmental Compliance Certificate
(ECC), before it can proceed with the construction of its project.
Believing that it was entitled to a Certificate of Non-Coverage, respondent filed a
petition for mandamus and injunction with the Regional Trial Court of Davao, docketed
as Civil Case No. 28,133-2000. It alleged that its proposed project was neither an
environmentally critical project nor within an environmentally critical area; thus it was
outside the scope of the EIS system. Hence, it was the ministerial duty of the DENR,
through the EMB-Region XI, to issue a CNC in favor of respondent upon submission of
the required documents.
The Regional Trial Court rendered judgment in favor of respondent, the dispositive
portion of which reads as follows:

WHEREFORE, finding the petition to be meritorious, judgment granting the writ of


mandamus and injunction is hereby rendered in favor of the petitioner City of Davao and
against respondents Department of Environment and Natural Resources and the other
respondents by:

1) directing the respondents to issue in favor of the petitioner City of Davao a Certificate
of Non-Coverage, pursuant to Presidential Decree No. 1586 and related laws, in
connection with the construction by the City of Davao of the Artica Sports Dome;

2) making the preliminary injunction issued on December 12, 2000 permanent.

Costs de oficio.

SO ORDERED.[3]

The trial court ratiocinated that there is nothing in PD 1586, in relation to PD 1151
and Letter of Instruction No. 1179 (prescribing guidelines for compliance with the EIA
system), which requires local government units (LGUs) to comply with the EIS law. Only
agencies and instrumentalities of the national government, including government owned
or controlled corporations, as well as private corporations, firms and entities are
mandated to go through the EIA process for their proposed projects which have
significant effect on the quality of the environment. A local government unit, not being
an agency or instrumentality of the National Government, is deemed excluded under the
principle of expressio unius est exclusio alterius.
The trial court also declared, based on the certifications of the DENR-Community
Environment and Natural Resources Office (CENRO)-West, and the data gathered from
the Philippine Institute of Volcanology and Seismology (PHIVOLCS), that the site for the
Artica Sports Dome was not within an environmentally critical area. Neither was the
project an environmentally critical one. It therefore becomes mandatory for the DENR,
through the EMB Region XI, to approve respondents application for CNC after it has
satisfied all the requirements for its issuance. Accordingly, petitioner can be compelled
by a writ of mandamus to issue the CNC, if it refuses to do so.
Petitioner filed a motion for reconsideration, however, the same was denied. Hence,
the instant petition for review.
With the supervening change of administration, respondent, in lieu of a comment,
filed a manifestation expressing its agreement with petitioner that, indeed, it needs to
secure an ECC for its proposed project. It thus rendered the instant petition moot and
academic. However, for the guidance of the implementors of the EIS law and pursuant
to our symbolic function to educate the bench and bar,[4] we are inclined to address the
issue raised in this petition.
Section 15 of Republic Act 7160,[5] otherwise known as the Local Government
Code, defines a local government unit as a body politic and corporate endowed with
powers to be exercised by it in conformity with law. As such, it performs dual functions,
governmental and proprietary. Governmental functions are those that concern the
health, safety and the advancement of the public good or welfare as affecting the public
generally.[6] Proprietary functions are those that seek to obtain special corporate
benefits or earn pecuniary profit and intended for private advantage and benefit. [7] When
exercising governmental powers and performing governmental duties, an LGU is an
agency of the national government.[8] When engaged in corporate activities, it acts as an
agent of the community in the administration of local affairs.[9]
Found in Section 16 of the Local Government Code is the duty of the LGUs to
promote the peoples right to a balanced ecology.[10] Pursuant to this, an LGU, like the
City of Davao, can not claim exemption from the coverage of PD 1586. As a body politic
endowed with governmental functions, an LGU has the duty to ensure the quality of the
environment, which is the very same objective of PD 1586.
Further, it is a rule of statutory construction that every part of a statute must be
interpreted with reference to the context, i.e., that every part must be considered with
other parts, and kept subservient to the general intent of the enactment.[11] The trial
court, in declaring local government units as exempt from the coverage of the EIS law,
failed to relate Section 2 of PD 1586[12] to the following provisions of the same law:

WHEREAS, the pursuit of a comprehensive and integrated environmental protection


program necessitates the establishment and institutionalization of a system whereby the
exigencies of socio-economic undertakings can be reconciled with the requirements of
environmental quality; x x x.

Section 1. Policy. It is hereby declared the policy of the State to attain and maintain a
rational and orderly balance between socio-economic growth and environmental
protection.

xxxxxxxxx

Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. The


President of the Philippines may, on his own initiative or upon recommendation of the
National Environmental Protection Council, by proclamation declare certain projects,
undertakings or areas in the country as environmentally critical. No person, partnership
or corporation shall undertake or operate any such declared environmentally critical
project or area without first securing an Environmental Compliance Certificate issued by
the President or his duly authorized representative. For the proper management of said
critical project or area, the President may by his proclamation reorganize such
government offices, agencies, institutions, corporations or instrumentalities including the
realignment of government personnel, and their specific functions and responsibilities.

Section 4 of PD 1586 clearly states that no person, partnership or corporation shall


undertake or operate any such declared environmentally critical project or area without
first securing an Environmental Compliance Certificate issued by the President or his
duly authorized representative.[13] The Civil Code defines a person as either natural or
juridical. The state and its political subdivisions, i.e., the local government units[14] are
juridical persons.[15] Undoubtedly therefore, local government units are not excluded
from the coverage of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the
policy of the state to achieve a balance between socio-economic development and
environmental protection, which are the twin goals of sustainable development. The
above-quoted first paragraph of the Whereas clause stresses that this can only be
possible if we adopt a comprehensive
and integrated environmental protectionprogram where all the sectors of the community
are involved, i.e., the government and the private sectors. The local government units,
as part of the machinery of the government, cannot therefore be deemed as outside the
scope of the EIS system.[16]
The foregoing arguments, however, presuppose that a project, for which an
Environmental Compliance Certificate is necessary, is environmentally critical or within
an environmentally critical area. In the case at bar, respondent has sufficiently shown
that the Artica Sports Dome will not have a significant negative environmental impact
because it is not an environmentally critical project and it is not located in an
environmentally critical area. In support of this contention, respondent submitted the
following:

1. Certification from the City Planning and Development Office that the project is not
located in an environmentally critical area;

2. Certification from the Community Environment and Natural Resources Office


(CENRO-West) that the project area is within the 18-30% slope, is outside the scope of
the NIPAS (R.A. 7586), and not within a declared watershed area; and

3. Certification from PHILVOCS that the project site is thirty-seven (37) kilometers
southeast of the southernmost extension of the Davao River Fault and forty-five (45)
kilometers west of the Eastern Mindanao Fault; and is outside the required minimum
buffer zone of five (5) meters from a fault zone.

The trial court, after a consideration of the evidence, found that the Artica Sports
Dome is not within an environmentally critical area. Neither is it an environmentally
critical project. It is axiomatic that factual findings of the trial court, when fully supported
by the evidence on record, are binding upon this Court and will not be disturbed on
appeal.[17] This Court is not a trier of facts.[18]
There are exceptional instances when this Court may disregard factual findings of
the trial court, namely: a) when the conclusion is a finding grounded entirely on
speculations, surmises, or conjectures; b) when the inference made is manifestly
mistaken, absurd, or impossible; c) where there is a grave abuse of discretion; d) when
the judgment is based on a misapprehension of facts; e) when the findings of fact are
conflicting; f) when the Court of Appeals, in making its findings, went beyond the issues
of the case and the same are contrary to the admissions of both appellant and appellee;
g) when the findings of the Court of Appeals are contrary to those of the trial court; h)
when the findings of fact are conclusions without citation of specific evidence on which
they are based; i) when the finding of fact of the Court of Appeals is premised on the
supposed absence of evidence but is contradicted by the evidence on record; and j)
when the Court of Appeals manifestly overlooked certain relevant facts not disputed by
the parties and which, if properly considered, would justify a different
conclusion.[19] None of these exceptions, however, obtain in this case.
The Environmental Impact Statement System, which ensures environmental
protection and regulates certain government activities affecting the environment, was
established by Presidential Decree No. 1586. Section 2 thereof states:

There is hereby established an Environmental Impact Statement System founded and


based on the environmental impact statement required under Section 4 of Presidential
Decree No. 1151, of all agencies and instrumentalities of the national government,
including government-owned or controlled corporations, as well as private corporations,
firms and entities, for every proposed project and undertaking which significantly affect
the quality of the environment.

Section 4 of PD 1151, on the other hand, provides:

Environmental Impact Statements. Pursuant to the above enunciated policies and


goals, all agencies and instrumentalities of the national government, including
government-owned or controlled corporations, as well as private corporations, firms and
entities shall prepare, file and include in every action, project or undertaking which
significantly affects the quality of the environment a detailed statement on

(a) the environmental impact of the proposed action, project or undertaking


(b) any adverse environmental effect which cannot be avoided should the proposal be
implemented

(c) alternative to the proposed action

(d) a determination that the short-term uses of the resources of the environment are
consistent with the maintenance and enhancement of the long-term productivity of the
same; and

(e) whenever a proposal involves the use of depletable or nonrenewable resources, a


finding must be made that such use and commitment are warranted.

Before an environmental impact statement is issued by a lead agency, all agencies


having jurisdiction over, or special expertise on, the subject matter involved shall
comment on the draft environmental impact statement made by the lead agency within
thirty (30) days from receipt of the same.

Under Article II, Section 1, of the Rules and Regulations Implementing PD 1586, the
declaration of certain projects or areas as environmentally critical, and which shall fall
within the scope of the Environmental Impact Statement System, shall be by
Presidential Proclamation, in accordance with Section 4 of PD 1586 quoted above.
Pursuant thereto, Proclamation No. 2146 was issued on December 14, 1981,
proclaiming the following areas and types of projects as environmentally critical and
within the scope of the Environmental Impact Statement System established under PD
1586:

A. Environmentally Critical Projects

I. Heavy Industries

a. Non-ferrous metal industries


b. Iron and steel mills
c. Petroleum and petro-chemical industries including oil and gas
d. Smelting plants

II. Resource Extractive Industries

a. Major mining and quarrying projects


b. Forestry projects

1. Logging
2. Major wood processing projects
3. Introduction of fauna (exotic-animals) in public/private forests
4. Forest occupancy
5. Extraction of mangrove products
6. Grazing

c. Fishery Projects

1. Dikes for/and fishpond development projects

III. Infrastructure Projects

a. Major dams
b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or
geothermal)
c. Major reclamation projects
d. Major roads and bridges

B. Environmentally Critical Areas

1. All areas declared by law as national parks, watershed reserves, wildlife


preserves and sanctuaries;
2. Areas set aside as aesthetic potential tourist spots;
3. Areas which constitute the habitat for any endangered or threatened
species of indigenous Philippine Wildlife (flora and fauna);
4. Areas of unique historic, archaeological, or scientific interests;
5. Areas which are traditionally occupied by cultural communities or tribes;
6. Areas frequently visited and/or hard-hit by natural calamities (geologic
hazards, floods, typhoons, volcanic activity, etc.);
7. Areas with critical slopes;
8. Areas classified as prime agricultural lands;
9. Recharged areas of aquifers;
10. Water bodies characterized by one or any combination of the following conditions;

a. tapped for domestic purposes


b. within the controlled and/or protected areas declared by
appropriate authorities
c. which support wildlife and fishery activities

11. Mangrove areas characterized by one or any combination of the following


conditions:

a. with primary pristine and dense young growth;


b. adjoining mouth of major river systems;
c. near or adjacent to traditional productive fry or fishing grounds;
d. which act as natural buffers against shore erosion, strong winds
and storm floods;
e. on which people are dependent for their livelihood.

12. Coral reefs, characterized by one or any combinations of the following conditions:

a. with 50% and above live coralline cover;


b. spawning and nursery grounds for fish;
c. which act as natural breakwater of coastlines.

In this connection, Section 5 of PD 1586 expressly states:

Environmentally Non-Critical Projects. All other projects, undertakings and areas not
declared by the President as environmentally critical shall be considered as non-critical
and shall not be required to submit an environmental impact statement. The National
Environmental Protection Council, thru the Ministry of Human Settlements may however
require non-critical projects and undertakings to provide additional environmental
safeguards as it may deem necessary.

The Artica Sports Dome in Langub does not come close to any of the projects or
areas enumerated above. Neither is it analogous to any of them. It is clear, therefore,
that the said project is not classified as environmentally critical, or within an
environmentally critical area. Consequently, the DENR has no choice but to issue the
Certificate of Non-Coverage. It becomes its ministerial duty, the performance of which
can be compelled by writ of mandamus, such as that issued by the trial court in the case
at bar.
WHEREFORE, in view of the foregoing, the instant petition is DENIED. The
decision of the Regional Trial Court of Davao City, Branch 33, in Civil Case No. 28,133-
2000, granting the writ of mandamus and directing the Department of Environment and
Natural Resources to issue in favor of the City of Davao a Certificate of Non-Coverage,
pursuant to Presidential Decree No. 1586 and related laws, in connection with the
construction of the Artica Sports Dome, is AFFIRMED.