G.R. No. 111097 July 20, 1994 Sec. 3. — PENALTIES. — Any violation of such existing business permit Sec.
such existing business permit Sec. 2. — Any violation of this Ordinance shall be subject to the following
MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE
ORO, petitioners,
vs.
PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE
AMUSEMENT AND GAMING CORPORATION, respondents.
Aquilino G. Pimentel, Jr. and Associates for petitioners.
R.R. Torralba & Associates for private respondent.
CRUZ, J.:
There was instant opposition when PAGCOR announced the opening of a
casino in Cagayan de Oro City. Civic organizations angrily denounced the
project. The religious elements echoed the objection and so did the
women's groups and the youth. Demonstrations were led by the mayor and
the city legislators. The media trumpeted the protest, describing the casino
as an affront to the welfare of the city.
The trouble arose when in 1992, flush with its tremendous success in
several cities, PAGCOR decided to expand its operations to Cagayan de
Oro City. To this end, it leased a portion of a building belonging to Pryce
Properties Corporation, Inc., one of the herein private respondents,
renovated and equipped the same, and prepared to inaugurate its casino
there during the Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was
swift and hostile. On December 7, 1992, it enacted Ordinance No. 3353
reading as follows:
ORDINANCE NO. 3353
AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS
PERMIT AND CANCELLING EXISTING BUSINESS PERMIT TO
ANY ESTABLISHMENT FOR THE USING AND ALLOWING TO
BE USED ITS PREMISES OR PORTION THEREOF FOR THE
OPERATION OF CASINO.
BE IT ORDAINED by the Sangguniang Panlungsod of the City of
Cagayan de Oro, in session assembled that:
Sec. 1. — That pursuant to the policy of the city banning the operation of
casino within its territorial jurisdiction, no business permit shall be issued
to any person, partnership or corporation for the operation of casino
within the city limits.
Sec. 2. — That it shall be a violation of existing business permit by any
persons, partnership or corporation to use its business establishment or
portion thereof, or allow the use thereof by others for casino operation and
other gambling activities.
as defined in the preceding section shall suffer the following penalties, to
wit:
a) Suspension of the business permit for sixty (60) days for the first offense
and a fine of P1,000.00/day
b) Suspension of the business permit for Six (6) months for the second
offense, and a fine of P3,000.00/day
c) Permanent revocation of the business permit and imprisonment of One
(1) year, for the third and subsequent offenses.
Sec. 4. — This Ordinance shall take effect ten (10) days from publication
thereof.
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No.
3375-93 reading as follows:
ORDINANCE NO. 3375-93
AN ORDINANCE PROHIBITING THE OPERATION OF CASINO
AND PROVIDING PENALTY FOR VIOLATION THEREFOR.
WHEREAS, the City Council established a policy as early as 1990 against
CASINO under its Resolution No. 2295;
WHEREAS, on October 14, 1992, the City Council passed another
Resolution No. 2673, reiterating its policy against the establishment of
CASINO;
WHEREAS, subsequently, thereafter, it likewise passed Ordinance No.
3353, prohibiting the issuance of Business Permit and to cancel existing
Business Permit to any establishment for the using and allowing to be used
its premises or portion thereof for the operation of CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the
Local Government Code of 1991 (Rep. Act 7160) and under Art. 99, No.
(4), Paragraph VI of the implementing rules of the Local Government
Code, the City Council as the Legislative Body shall enact measure to
suppress any activity inimical to public morals and general welfare of the
people and/or regulate or prohibit such activity pertaining to amusement
or entertainment in order to protect social and moral welfare of the
community;
NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly assembled that:
Sec. 1. — The operation of gambling CASINO in the City of Cagayan de
Oro is hereby prohibited.
penalties:
a) Administrative fine of P5,000.00 shall be imposed against the proprietor,
partnership or corporation undertaking the operation, conduct,
maintenance of gambling CASINO in the City and closure thereof;
b) Imprisonment of not less than six (6) months nor more than one (1)
year or a fine in the amount of P5,000.00 or both at the discretion of the
court against the manager, supervisor, and/or any person responsible in
the establishment, conduct and maintenance of gambling CASINO.
Sec. 3. — This Ordinance shall take effect ten (10) days after its publication
in a local newspaper of general circulation.
Pryce assailed the ordinances before the Court of Appeals, where it was
joined by PAGCOR as intervenor and supplemental petitioner. Their
challenge succeeded. On March 31, 1993, the Court of Appeals declared
the ordinances invalid and issued the writ prayed for to prohibit their
enforcement. 1 Reconsideration of this decision was denied on July 13,
1993. 2
Cagayan de Oro City and its mayor are now before us in this petition for
review under Rule 45 of the Rules of Court. 3 They aver that the
respondent Court of Appeals erred in holding that:
1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan
de Oro does not have the power and authority to prohibit the
establishment and operation of a PAGCOR gambling casino within the
City's territorial limits.
2. The phrase "gambling and other prohibited games of chance" found in
Sec. 458, par. (a), sub-par. (1) — (v) of R.A. 7160 could only mean "illegal
gambling."
3. The questioned Ordinances in effect annul P.D. 1869 and are therefore
invalid on that point.
4. The questioned Ordinances are discriminatory to casino and partial to
cockfighting and are therefore invalid on that point.
5. The questioned Ordinances are not reasonable, not consonant with the
general powers and purposes of the instrumentality concerned and
inconsistent with the laws or policy of the State.
6. It had no option but to follow the ruling in the case of Basco, et al. v.
PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 53 in disposing of
the issues presented in this present case.
1
PAGCOR is a corporation created directly by P.D. 1869 to help centralize
and regulate all games of chance, including casinos on land and sea within
the territorial jurisdiction of the Philippines. In Basco v. Philippine Amusements
and Gaming Corporation, 4 this Court sustained the constitutionality of the
decree and even cited the benefits of the entity to the national economy as
the third highest revenue-earner in the government, next only to the BIR
and the Bureau of Customs.
Cagayan de Oro City, like other local political subdivisions, is empowered
to enact ordinances for the purposes indicated in the Local Government
Code. It is expressly vested with the police power under what is known as
the General Welfare Clause now embodied in Section 16 as follows:
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.
In addition, Section 458 of the said Code specifically declares that:
Sec. 458. — Powers, Duties, Functions and Compensation. — (a) The
Sangguniang Panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers of the city as provided
for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and
effective city government, and in this connection, shall:
xxx xxx xxx
(v) Enact ordinances intended to prevent, suppress and impose appropriate
penalties for habitual drunkenness in public places, vagrancy, mendicancy,
prostitution, establishment and maintenance of houses of ill
repute, gambling and other prohibited games of chance, fraudulent devices
and ways to obtain money or property, drug addiction, maintenance of
drug dens, drug pushing, juvenile delinquency, the printing, distribution or
exhibition of obscene or pornographic materials or publications, and such
other activities inimical to the welfare and morals of the inhabitants of the
city;
This section also authorizes the local government units to regulate
properties and businesses within their territorial limits in the interest of the
general welfare. 5
The petitioners argue that by virtue of these provisions, the Sangguniang
Panlungsod may prohibit the operation of casinos because they involve
games of chance, which are detrimental to the people. Gambling is not
allowed by general law and even by the Constitution itself. The legislative
power conferred upon local government units may be exercised over all
kinds of gambling and not only over "illegal gambling" as the respondents
erroneously argue. Even if the operation of casinos may have been
permitted under P.D. 1869, the government of Cagayan de Oro City has
the authority to prohibit them within its territory pursuant to the authority
entrusted to it by the Local Government Code.
It is submitted that this interpretation is consonant with the policy of local
autonomy as mandated in Article II, Section 25, and Article X of the
Constitution, as well as various other provisions therein seeking to
strengthen the character of the nation. In giving the local government units
the power to prevent or suppress gambling and other social problems, the
Local Government Code has recognized the competence of such
communities to determine and adopt the measures best expected to
promote the general welfare of their inhabitants in line with the policies of
the State.
The petitioners also stress that when the Code expressly authorized the
local government units to prevent and suppress gambling and other
prohibited games of chance, like craps, baccarat, blackjack and roulette, it
meant all forms of gambling without distinction. Ubi lex non distinguit, nec nos
distinguere debemos. 6 Otherwise, it would have expressly excluded from the
scope of their power casinos and other forms of gambling authorized by
special law, as it could have easily done. The fact that it did not do so
simply means that the local government units are permitted to prohibit all
kinds of gambling within their territories, including the operation of
casinos.
The adoption of the Local Government Code, it is pointed out, had the
effect of modifying the charter of the PAGCOR. The Code is not only a
later enactment than P.D. 1869 and so is deemed to prevail in case of
inconsistencies between them. More than this, the powers of the
PAGCOR under the decree are expressly discontinued by the Code insofar
as they do not conform to its philosophy and provisions, pursuant to Par.
(f) of its repealing clause reading as follows:
(f) All general and special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts thereof
which are inconsistent with any of the provisions of this Code are hereby
repealed or modified accordingly.
It is also maintained that assuming there is doubt regarding the effect of
the Local Government Code on P.D. 1869, the doubt must be resolved in
favor of the petitioners, in accordance with the direction in the Code
calling for its liberal interpretation in favor of the local government units.
Section 5 of the Code specifically provides:
Sec. 5. Rules of Interpretation. — In the interpretation of the provisions of
this Code, the following rules shall apply:
(a) 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 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;
xxx xxx xxx
(c) 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; . . .
(Emphasis supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful and cite
various provisions of the Constitution and several decisions of this Court
expressive of the general and official disapprobation of the vice. They
invoke the State policies on the family and the proper upbringing of the
youth and, as might be expected, call attention to the old case of U.S. v.
Salaveria,7 which sustained a municipal ordinance prohibiting the playing
of panguingue. The petitioners decry the immorality of gambling. They also
impugn the wisdom of P.D. 1869 (which they describe as "a martial law
instrument") in creating PAGCOR and authorizing it to operate casinos
"on land and sea within the territorial jurisdiction of the Philippines."
This is the opportune time to stress an important point.
The morality of gambling is not a justiciable issue. Gambling is not
illegal per se. While it is generally considered inimical to the interests of the
people, there is nothing in the Constitution categorically proscribing or
penalizing gambling or, for that matter, even mentioning it at all. It is left
to Congress to deal with the activity as it sees fit. In the exercise of its own
discretion, the legislature may prohibit gambling altogether or allow it
without limitation or it may prohibit some forms of gambling and allow
others for whatever reasons it may consider sufficient. Thus, it has
prohibited jueteng and monte but permits lotteries, cockfighting and horse-
racing. In making such choices, Congress has consulted its own wisdom,
which this Court has no authority to review, much less reverse. Well has it
been said that courts do not sit to resolve the merits of conflicting
theories. 8 That is the prerogative of the political departments. It is settled
that questions regarding the wisdom, morality, or practicibility of statutes
2
are not addressed to the judiciary but may be resolved only by the
legislative and executive departments, to which the function belongs in our
scheme of government. That function is exclusive. Whichever way these
branches decide, they are answerable only to their own conscience and the
constituents who will ultimately judge their acts, and not to the courts of
justice.
The only question we can and shall resolve in this petition is the validity of
Ordinance No. 3355 and Ordinance No. 3375-93 as enacted by the
Sangguniang Panlungsod of Cagayan de Oro City. And we shall do so only
by the criteria laid down by law and not by our own convictions on the
propriety of gambling.
The tests of a valid ordinance are well established. A long line of
decisions 9 has held that to be valid, an ordinance must conform to the
following substantive requirements:
1) It must not contravene the constitution or any statute.
2) It must not be unfair or oppressive.
3) It must not be partial or discriminatory.
4) It must not prohibit but may regulate trade.
5) It must be general and consistent with public policy.
6) It must not be unreasonable.
We begin by observing that under Sec. 458 of the Local Government
Code, local government units are authorized to prevent or suppress, among
others, "gambling and other prohibited games of chance." Obviously, this
provision excludes games of chance which are not prohibited but are in
fact permitted by law. The petitioners are less than accurate in claiming that
the Code could have excluded such games of chance but did not. In fact it
does. The language of the section is clear and unmistakable. Under the rule
of noscitur a sociis, a word or phrase should be interpreted in relation to, or
given the same meaning of, words with which it is associated. Accordingly,
we conclude that since the word "gambling" is associated with
"and other prohibited games of chance," the word should be read as
referring to only illegal gambling which, like the other prohibited games of
chance, must be prevented or suppressed.
We could stop here as this interpretation should settle the problem quite
conclusively. But we will not. The vigorous efforts of the petitioners on
behalf of the inhabitants of Cagayan de Oro City, and the earnestness of
their advocacy, deserve more than short shrift from this Court.
The apparent flaw in the ordinances in question is that they contravene
P.D. 1869 and the public policy embodied therein insofar as they prevent
PAGCOR from exercising the power conferred on it to operate a casino in
Cagayan de Oro City. The petitioners have an ingenious answer to this
misgiving. They deny that it is the ordinances that have changed P.D. 1869
for an ordinance admittedly cannot prevail against a statute. Their theory is
that the change has been made by the Local Government Code itself,
which was also enacted by the national lawmaking authority. In their view,
the decree has been, not really repealed by the Code, but merely
"modified pro tanto" in the sense that PAGCOR cannot now operate a
casino over the objection of the local government unit concerned. This
modification of P.D. 1869 by the Local Government Code is permissible
because one law can change or repeal another law.
It seems to us that the petitioners are playing with words. While insisting
that the decree has only been "modified pro tanto," they are actually arguing
that it is already dead, repealed and useless for all intents and purposes
because the Code has shorn PAGCOR of all power to centralize and
regulate casinos. Strictly speaking, its operations may now be not only
prohibited by the local government unit; in fact, the prohibition is not only
discretionary but mandated by Section 458 of the Code if the word "shall" as
used therein is to be given its accepted meaning. Local government units
have now no choice but to prevent and suppress gambling, which in the
petitioners' view includes both legal and illegal gambling. Under this
construction, PAGCOR will have no more games of chance to regulate or
centralize as they must all be prohibited by the local government units
pursuant to the mandatory duty imposed upon them by the Code. In this
situation, PAGCOR cannot continue to exist except only as a toothless
tiger or a white elephant and will no longer be able to exercise its powers as
a prime source of government revenue through the operation of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the repealing
clause, conveniently discarding the rest of the provision which
painstakingly mentions the specific laws or the parts thereof which are
repealed (or modified) by the Code. Significantly, P.D. 1869 is not one of
them. A reading of the entire repealing clause, which is reproduced below,
will disclose the omission:
Sec. 534. Repealing Clause. — (a) Batas Pambansa Blg. 337, otherwise
known as the "Local Government Code," Executive Order No. 112 (1987),
and Executive Order No. 319 (1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees,
orders, instructions, memoranda and issuances related to or concerning the
barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939
regarding hospital fund; Section 3, a (3) and b (2) of Republic Act. No.
5447 regarding the Special Education Fund; Presidential Decree No. 144 as
amended by Presidential Decree Nos. 559 and 1741; Presidential Decree
No. 231 as amended; Presidential Decree No. 436 as amended by
Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464,
477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force
and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs
locally-funded projects.
(e) The following provisions are hereby repealed or amended insofar as
they are inconsistent with the provisions of this Code: Sections 2, 16, and
29 of Presidential Decree No. 704; Sections 12 of Presidential Decree No.
87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of
Presidential Decree No. 463, as amended; and Section 16 of Presidential
Decree No. 972, as amended, and
(f) All general and special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts thereof
which are inconsistent with any of the provisions of this Code are hereby
repealed or modified accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly
presumed in the absence of a clear and unmistakable showing of such
intention. In Lichauco & Co. v. Apostol, 10 this Court explained:
The cases relating to the subject of repeal by implication all proceed on the
assumption that if the act of later date clearly reveals an intention on the
part of the lawmaking power to abrogate the prior law, this intention must
be given effect; but there must always be a sufficient revelation of this
intention, and it has become an unbending rule of statutory construction
that the intention to repeal a former law will not be imputed to the
Legislature when it appears that the two statutes, or provisions, with
reference to which the question arises bear to each other the relation of
general to special.
There is no sufficient indication of an implied repeal of P.D. 1869. On the
contrary, as the private respondent points out, PAGCOR is mentioned as
the source of funding in two later enactments of Congress, to wit, R.A.
7309, creating a Board of Claims under the Department of Justice for the
benefit of victims of unjust punishment or detention or of violent crimes,
and R.A. 7648, providing for measures for the solution of the power crisis.
PAGCOR revenues are tapped by these two statutes. This would show that
the PAGCOR charter has not been repealed by the Local Government
Code but has in fact been improved as it were to make the entity more
responsive to the fiscal problems of the government.
It is a canon of legal hermeneutics that instead of pitting one statute against
another in an inevitably destructive confrontation, courts must exert every
effort to reconcile them, remembering that both laws deserve a becoming
respect as the handiwork of a coordinate branch of the government. On
the assumption of a conflict between P.D. 1869 and the Code, the proper
action is not to uphold one and annul the other but to give effect to both
by harmonizing them if possible. This is possible in the case before us. The
proper resolution of the problem at hand is to hold that under the Local
Government Code, local government units may (and indeed must) prevent
and suppress all kinds of gambling within their territories except only those
allowed by statutes like P.D. 1869. The exception reserved in such laws
must be read into the Code, to make both the Code and such laws equally
effective and mutually complementary.
3
This approach would also affirm that there are indeed two kinds of
gambling, to wit, the illegal and those authorized by law. Legalized
gambling is not a modern concept; it is probably as old as illegal gambling,
if not indeed more so. The petitioners' suggestion that the Code authorizes
them to prohibit all kinds of gambling would erase the distinction between
these two forms of gambling without a clear indication that this is the will
of the legislature. Plausibly, following this theory, the City of Manila could,
by mere ordinance, prohibit the Philippine Charity Sweepstakes Office
from conducting a lottery as authorized by R.A. 1169 and B.P. 42 or stop
the races at the San Lazaro Hippodrome as authorized by R.A. 309 and
R.A. 983.
In light of all the above considerations, we see no way of arriving at the
conclusion urged on us by the petitioners that the ordinances in question
are valid. On the contrary, we find that the ordinances violate P.D. 1869,
which has the character and force of a statute, as well as the public policy
expressed in the decree allowing the playing of certain games of chance
despite the prohibition of gambling in general.
The rationale of the requirement that the ordinances should not contravene
a statute is obvious. Municipal governments are only agents of the national
government. Local councils exercise only delegated legislative powers
conferred on them by Congress as the national lawmaking body. The
delegate cannot be superior to the principal or exercise powers higher than
those of the latter. It is a heresy to suggest that the local government units
can undo the acts of Congress, from which they have derived their power
in the first place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and
rights wholly from the legislature. It breathes into them the breath of life,
without which they cannot exist. As it creates, so it may destroy. As it may
destroy, it may abridge and control. Unless there is some constitutional
limitation on the right, the legislature might, by a single act, and if we can
suppose it capable of so great a folly and so great a wrong, sweep from
existence all of the municipal corporations in the State, and the corporation
could not prevent it. We know of no limitation on the right so far as to the
corporation themselves are concerned. They are, so to phrase it, the mere
tenants at will of the legislature. 11
This basic relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in the
Constitution strengthening the policy of local autonomy. Without meaning
to detract from that policy, we here confirm that Congress retains control
of the local government units although in significantly reduced degree now
than under our previous Constitutions. The power to create still includes
the power to destroy. The power to grant still includes the power to
withhold or recall. True, there are certain notable innovations in the
Constitution, like the direct conferment on the local government units of
the power to tax, 12 which cannot now be withdrawn by mere statute. By
and large, however, the national legislature is still the principal of the local
government units, which cannot defy its will or modify or violate it.
The Court understands and admires the concern of the petitioners for the
welfare of their constituents and their apprehensions that the welfare of
Cagayan de Oro City will be endangered by the opening of the casino. We
share the view that "the hope of large or easy gain, obtained without special
effort, turns the head of the workman" 13 and that "habitual gambling is a
cause of laziness and ruin." 14 In People v. Gorostiza, 15 we declared: "The
social scourge of gambling must be stamped out. The laws against
gambling must be enforced to the limit." George Washington called
gambling "the child of avarice, the brother of iniquity and the father of
mischief." Nevertheless, we must recognize the power of the legislature to
decide, in its own wisdom, to legalize certain forms of gambling, as was
done in P.D. 1869 and impliedly affirmed in the Local Government Code.
That decision can be revoked by this Court only if it contravenes the
Constitution as the touchstone of all official acts. We do not find such
contravention here.
We hold that the power of PAGCOR to centralize and regulate all games
of chance, including casinos on land and sea within the territorial
jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not been
modified by the Local Government Code, which empowers the local
government units to prevent or suppress only those forms of gambling
prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the status of a
statute that cannot be amended or nullified by a mere ordinance. Hence, it
was not competent for the Sangguniang Panlungsod of Cagayan de Oro
City to enact Ordinance No. 3353 prohibiting the use of buildings for the
operation of a casino and Ordinance No. 3375-93 prohibiting the
operation of casinos. For all their praiseworthy motives, these ordinances
are contrary to P.D. 1869 and the public policy announced therein and are
therefore ultra vires and void.
WHEREFORE, the petition is DENIED and the challenged decision of
the respondent Court of Appeals is AFFIRMED, with costs against the
petitioners. It is so ordered
G.R. No. 132834 November 24, 2006
RUPERTO LUCERO, JR., PABLO LUCERO and ANTONIO
TENORIO, Petitioners,
vs.
CITY GOVERNMENT OF PASIG, as represented by the Market
Administrator, Respondent.
DECISION
CORONA, J.:
In this petition for review on certiorari, petitioners seek the review and
reversal of the Court of Appeals (CA) decision 1 and resolution2 in CA-G.R.
SP. No. 42131.
Petitioners were granted lease contracts to occupy and operate stalls 3 in the
public market of Pasig by virtue of Municipal Ordinance No. 25, series of
1983.
Sometime in 1993, the municipal government of Pasig renovated the
market facilities and constructed annex buildings to the old public market.
The Sangguniang Bayan of Pasig then enacted Municipal Ordinance No. 56,
series of 1993, entitled "An Ordinance Prescribing the Rules and
Regulations in Occupying and Using Market Stalls and Providing Penalties
for Violations Thereof." The ordinance took effect 30 days after its
enactment on October 20, 1993.
Pursuant to the new ordinance, municipal officials urged all stall occupants
to fill up and submit the necessary application forms. The application form
contained the terms and conditions for the occupation and operation of
the stalls. If approved, the application would serve as the lease contract.
Petitioners, however, refused to apply for a new lease on their market stalls.
They were given a deadline to comply with the new ordinance but
petitioners were adamant.
On November 14, 1995, the city government of Pasig4 filed a complaint
for ejectment against petitioners in the Metropolitan Trial Court (MTC),
Branch 68, Pasig City. The case was docketed as Civil Case No. 5043.
In its complaint, the city government alleged that petitioners failed to pay
the required ₱10,000 performance bond and their rental fees since January
1994 as required by the municipal ordinance.
In their answer, petitioners claimed that they had faithfully complied with
their obligations as set forth in their 1983 lease contracts. They alleged that
it was the city government which refused to accept their rental payments
from January 1994 onwards because of petitioners’ failure to submit new
applications to lease their market stalls. They did not pay the performance
bond because, as previous stall occupants, they were not required to do so.
With due notice to the city treasurer, petitioners deposited their payments
in a bank when their offer to pay was not acted upon.
Finding the ejectment suit to be without merit, the MTC ruled in favor of
petitioners and dismissed the complaint.5
Dissatisfied with the lower court’s decision, the city government appealed
to the Regional Trial Court (RTC), Branch 162, Pasig City. 6 The RTC
reversed the MTC decision and decided in favor of the city government.
4
WHEREFORE, PREMISES CONSIDERED, this Court hereby renders
judgment in this case in favor of [the City Government of Pasig] and
against [petitioners] by:
(1) Reversing, amending and/or modifying the decision of the trial court
dated March 29, 1996 subject of this appeal, and entering a new judgment
directing the herein [petitioners] and all persons claiming right under them
to vacate the Market Stalls Nos. 28 and 29, Commercial Section, and Stall
[Nos.] 456 and 457, Grocery Section, and to restore possession thereof to
[the city government];
(2) Ordering the [petitioners] to pay the rent for the use and occupancy of
the subject stalls, as follows:
(a) Ruperto Lucero – the amount of ₱49,980.00 representing arrearages for
the whole year of [January 1994 up to September 1995]; and the further
sum in the same amount representing rents for the inclusive period of
[October 1995 up to and until September 1996];
(b) Pablo Lucero – the amount of ₱20,050.00 representing arrearages from
[February 1995 up to September 1995]; and the further sum in the same
amount representing rents for the duration of October 1995 to September
1996;
(c) Antonio Tenorio – the amount of ₱38,587.50 representing arrearages
from January 1994 to September 1995; and the further sum in the same
amount representing rents for the inclusive period [of] October 1995 to
September 1996.
(3) Ordering [petitioners] to pay jointly and severally the amount of
₱15,000.00 for and as attorney’s fees.
With costs against [petitioners].
SO ORDERED.7
Petitioners appealed the RTC decision to the CA. The appeal was,
however, dismissed for lack of merit.8 Their motion for reconsideration
was similarly denied;9 hence, this petition.
Petitioners mainly assail the non-renewal of their lease contracts on stalls in
the public market when they did not comply with the requirements of
Municipal Ordinance No. 56, series of 1993.10 They claim to have a vested
right to the possession, use and enjoyment of the market stalls based on
their 1983 lease contracts. This, they assert, could not be impaired by the
enactment of Municipal Ordinance No. 56 in 1993.
The only issue for our resolution is: can petitioners claim a vested right to
the market stalls they were occupying by virtue of their lease contracts
under Municipal Ordinance No. 25, series of 1983? They cannot.
"A right is vested when the right to enjoyment has become the property of
some particular person or persons as a present interest." 11 It is unalterable,
absolute, complete and unconditional.12 This right is perfect in itself; it is
not dependent upon a contingency.13 The concept of "vested right"
expresses a "present fixed interest which in right reason and natural justice is
protected against arbitrary state action."14 It includes not only legal and
equitable title to the enforcement of a demand but also exemptions from
new obligations created after the right has become vested.15
Contrary to petitioners’ contention that they were no longer covered by the
1993 ordinance requiring payment of a performance bond and submission
of new application forms, their 1983 lease contracts did not grant them
irrefutable rights to the market stalls. They were mere grantees of a
privilege to occupy and operate such booths.
What petitioners had was a license to occupy and operate particular stalls
over a period of time. Their possession and use of these facilities could not
be characterized as fixed and absolute. Indeed, petitioners did not have any
vested right to the stalls.
It was within the ambit of the Sanggunian’s authority in the exercise of
police power to regulate the enjoyment of the privilege to lease the market
stalls. The enactment of the Municipal Ordinance No. 56, series of 1993
repealing Municipal Ordinance No. 25, series of 1983 (the basis of
petitioners’ lease) was a valid exercise of such governmental authority to
regulate the possession and use of the public market and its facilities. 16
The lease (and occupation) of a stall in a public market is not a right but a
purely statutory privilege governed by laws and ordinances.17 The operation
of a market stall by virtue of a license is always subject to the police power
of the city government.18 An application for this privilege may be granted
or refused for reasons of public policy and sound public
administration.19 The city government, through its market administrator, is
not duty-bound to grant lease privileges to any applicant, least of all those
who refuse to obey the new ordinance prescribing the rules and regulations
for the market stalls.
Moreover, a public market is one dedicated to the service of the general
public and operated under government control and supervision as a public
utility.20 Hence, the operation of a public market and its facilities is imbued
with public interest. Petitioners’ 1983 lease contracts contained an implied
reservation of the police power as a postulate of the existing legal
order.21 This power could be exercised any time to change the provisions
of the contracts or even abrogate them entirely, for the protection of the
general welfare.22 Such an act did not violate the non-impairment clause
which is anyway subject to and limited by the paramount police power.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioners.
SO ORDERED.
G.R. No. 187298 July 03, 2012
JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH.
YUSOP ISMI, JULHAJAN AWADI, and SPO1 SATTAL H.
JADJULI, Petitioners,
vs.
GOV. ABDUSAKUR M. TAN, in his capacity as Governor of Sulu;
GEN. JUANCHO SABAN, COL. EUGENIO CLEMEN PN,
P/SUPT. JULASIRIM KASIM and P/SUPT. BIENVENIDO G.
LATAG, in their capacity as officers of the Phil. Marines and Phil.
National Police, respectively, Respondents.
DECISION
SERENO, J.:
On 15 January 2009, three members from the International Committee of
the Red Cross (ICRC) were kidnapped in the vicinity of the Provincial
Capitol in Patikul, Sulu.1 Andres Notter, a Swiss national and head of the
ICRC in Zamboanga City, Eugenio Vagni, an Italian national and ICRC
delegate, and Marie Jean Lacaba, a Filipino engineer, were purportedly
inspecting a water and sanitation project for the Sulu Provincial Jail when
inspecting a water and sanitation project for the Sulu Provincial Jail when
they were seized by three armed men who were later confirmed to be
members of the Abu Sayyaf Group (ASG).2 The leader of the alleged
kidnappers was identified as Raden Abu, a former guard at the Sulu
Provincial Jail. News reports linked Abu to Albader Parad, one of the
known leaders of the Abu Sayyaf.
On 21 January 2009, a task force was created by the ICRC and the
Philippine National Police (PNP), which then organized a parallel local
group known as the Local Crisis Committee.3 The local group, later
renamed Sulu Crisis Management Committee, convened under the
leadership of respondent Abdusakur Mahail Tan, the Provincial Governor
of Sulu. Its armed forces component was headed by respondents General
Juancho Saban, and his deputy, Colonel Eugenio Clemen. The PNP
component was headed by respondent Police Superintendent Bienvenido
G. Latag, the Police Deputy Director for Operations of the Autonomous
Region of Muslim Mindanao (ARMM).4
Governor Tan organized the Civilian Emergency Force (CEF), a group of
armed male civilians coming from different municipalities, who were
redeployed to surrounding areas of Patikul.5 The organization of the CEF
was embodied in a "Memorandum of Understanding"6 entered into
5
between three parties: the provincial government of Sulu, represented by
Governor Tan; the Armed Forces of the Philippines, represented by Gen.
Saban; and the Philippine National Police, represented by P/SUPT. Latag.
The Whereas clauses of the Memorandum alluded to the extraordinary
situation in Sulu, and the willingness of civilian supporters of the municipal
mayors to offer their services in order that "the early and safe rescue of the
hostages may be achieved."7
This Memorandum, which was labeled ‘secret’ on its all pages, also outlined
the responsibilities of each of the party signatories, as follows:
Responsibilities of the Provincial Government:
1) The Provincial Government shall source the funds and logistics needed
for the activation of the CEF;
2) The Provincial Government shall identify the Local Government Units
which shall participate in the operations and to propose them for the
approval of the parties to this agreement;
3) The Provincial Government shall ensure that there will be no unilateral
action(s) by the CEF without the knowledge and approval by both parties.
Responsibilities of AFP/PNP/ TF ICRC (Task Force ICRC):
1) The AFP/PNP shall remain the authority as prescribed by law in
military operations and law enforcement;
2) The AFP/PNP shall ensure the orderly deployment of the CEF in the
performance of their assigned task(s);
3) The AFP/PNP shall ensure the safe movements of the CEF in
identified areas of operation(s);
4) The AFP/PNP shall provide the necessary support and/or assistance as
called for in the course of operation(s)/movements of the CEF. 8
Meanwhile, Ronaldo Puno, then Secretary of the Department of Interior
and Local Government, announced to the media that government troops
had cornered some one hundred and twenty (120) Abu Sayyaf members
along with the three (3) hostages.9 However, the ASG made contact with
the authorities and demanded that the military pull its troops back from the
jungle area.10 The government troops yielded and went back to their
barracks; the Philippine Marines withdrew to their camp, while police and
civilian forces pulled back from the terrorists’ stronghold by ten (10) to
fifteen (15) kilometers. Threatening that one of the hostages will be
beheaded, the ASG further demanded the evacuation of the military camps
and bases in the different barangays in Jolo.11 The authorities were given no
later than 2:00 o’clock in the afternoon of 31 March 2009 to comply. 12
On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of
2009 (Proclamation 1-09), declaring a state of emergency in the province of
Sulu.13 It cited the kidnapping incident as a ground for the said declaration,
describing it as a terrorist act pursuant to the Human Security
Act (R.A. 9372). It also invoked Section 465 of the Local Government
Code of 1991 (R.A. 7160), which bestows on the Provincial Governor the
power to carry out emergency measures during man-made and natural
disasters and calamities, and to call upon the appropriate national law
enforcement agencies to suppress disorder and lawless violence.
In the same Proclamation, respondent Tan called upon the PNP and the
CEF to set up checkpoints and chokepoints, conduct general search and
seizures including arrests, and other actions necessary to ensure public
safety. The pertinent portion of the proclamation states:
NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN
ME BY LAW, I, ABDUSAKUR MAHAIL TAN, GOVERNOR OF THE
PROVINCE OF SULU, DO HEREBY DECLARE A STATE OF
EMERGENCY IN THE PROVINCE OF SULU, AND CALL ON THE
PHILIPPINE NATIONAL POLICE WITH THE ASSISTANCE OF
THE ARMED FORCES OF THE PHILIPPINES AND THE
CIVILIAN EMERGENCY FORCE TO IMPLEMENT THE
FOLLOWING:
1. The setting-up of checkpoints and chokepoints in the province;
2. The imposition of curfew for the entire province subject to such
Guidelines as may be issued by proper authorities;
3. The conduct of General Search and Seizure including arrests in the
pursuit of the kidnappers and their supporters; and
4. To conduct such other actions or police operations as may be necessary
to ensure public safety.
DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU
THIS
31STDAY OF MARCH 2009. Sgd. Abdusakur M. Tan Governor.14
On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to
report to respondent P/SUPT. Julasirim Kasim. 15 Upon arriving at the
police station, he was booked, and interviewed about his relationship to
Musin, Jaiton, and Julamin, who were all his deceased relatives. Upon
admitting that he was indeed related to the three, he was detained. After a
few hours, former Punong Barangay Juljahan Awadi, Hadji Hadjirul
Bambra, Abdugajir Hadjirul, as well as PO2 Marcial Hajan, SPO3 Muhilmi
Ismula, Punong Barangay Alano Mohammad and jeepney driver Abduhadi
Sabdani, were also arrested.16 The affidavit17 of the apprehending officer
alleged that they were suspected ASG supporters and were being arrested
under Proclamation 1-09. The following day, 2 April 2009, the hostage
Mary Jane Lacaba was released by the ASG.
On 4 April 2009, the office of Governor Tan distributed to civic
organizations, copies of the "Guidelines for the Implementation of
Proclamation No. 1, Series of 2009 Declaring a State of Emergency in the
Province of Sulu."18 These Guidelines suspended all Permits to Carry
Firearms Outside of Residence (PTCFORs) issued by the Chief of the
PNP, and allowed civilians to seek exemption from the gun ban only by
applying to the Office of the Governor and obtaining the appropriate
identification cards. The said guidelines also allowed general searches and
seizures in designated checkpoints and chokepoints.
On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji
Mohammad Yusop Ismi, Ahajan Awadi, and SPO1 Sattal H. Jadjuli,
residents of Patikul, Sulu, filed the present Petition for Certiorari and
Prohibition,19 claiming that Proclamation 1-09 was issued with grave abuse
of discretion amounting to lack or excess of jurisdiction, as it threatened
fundamental freedoms guaranteed under Article III of the 1987
Constitution.
Petitioners contend that Proclamation No. 1 and its Implementing
Guidelines were issued ultra vires, and thus null and void, for violating
Sections 1 and 18, Article VII of the Constitution, which grants the
President sole authority to exercise emergency powers and calling-out
powers as the chief executive of the Republic and commander-in-chief of
the armed forces.20 Additionally, petitioners claim that the Provincial
Governor is not authorized by any law to create civilian armed forces
under his command, nor regulate and limit the issuances of PTCFORs to
his own private army.
In his Comment, Governor Tan contended that petitioners violated the
doctrine on hierarchy of courts when they filed the instant petition directly
in the court of last resort, even if both the Court of Appeals (CA) and the
Regional Trial Courts (RTC) possessed concurrent jurisdiction with the
Supreme Court under Rule 65.21 This is the only procedural defense raised
by respondent Tan. Respondents Gen. Juancho Saban, Col. Eugenio
Clemen, P/SUPT. Julasirim Kasim, and P/SUPT. Bienvenido Latag did
not file their respective Comments.1âwphi1
On the substantive issues, respondents deny that Proclamation 1-09 was
issued ultra vires, as Governor Tan allegedly acted pursuant to Sections 16
and 465 of the Local Government Code, which empowers the Provincial
Governor to carry out emergency measures during calamities and disasters,
and to call upon the appropriate national law enforcement agencies to
suppress disorder, riot, lawless violence, rebellion or
sedition.22 Furthermore, the Sangguniang Panlalawigan of Sulu authorized
the declaration of a state of emergency as evidenced by Resolution No. 4,
Series of 2009 issued on 31 March 2009 during its regular session. 23
The threshold issue in the present case is whether or not Section 465, in
relation to Section 16, of the Local Government Code authorizes the
respondent governor to declare a state of emergency, and exercise the
powers enumerated under Proclamation 1-09, specifically the conduct of
general searches and seizures. Subsumed herein is the secondary question
6
of whether or not the provincial governor is similarly clothed with
authority to convene the CEF under the said provisions.
We grant the petition.
I. Transcendental public Importance warrants a relaxation of the Doctrine of Hierarchy
of Courts
We first dispose of respondents’ invocation of the doctrine of hierarchy of
courts which allegedly prevents judicial review by this Court in the present
case, citing for this specific purpose, Montes v. Court of Appeals and
Purok Bagong Silang Association, Inc. v. Yuipco.24 Simply put, the
doctrine provides that where the issuance of an extraordinary writ is also
within the competence of the CA or the RTC, it is in either of these courts
and not in the Supreme Court, that the specific action for the issuance of
such writ must be sought unless special and important laws are clearly and
specifically set forth in the petition. The reason for this is that this Court is
a court of last resort and must so remain if it is to perform the functions
assigned to it by the Constitution and immemorial tradition. It cannot be
burdened with deciding cases in the first instance.25
The said rule, however, is not without exception. In Chavez v. PEA-
Amari,26 the Court stated:
PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking
relief directly from the Court. The principle of hierarchy of courts applies
generally to cases involving factual questions. As it is not a trier of facts,
the Court cannot entertain cases involving factual issues. The instant case,
however, raises constitutional questions of transcendental importance to
the public. The Court can resolve this case without determining any factual
issue related to the case. Also, the instant case is a petition for mandamus
which falls under the original jurisdiction of the Court under Section 5,
Article VIII of the Constitution. We resolve to exercise primary jurisdiction
over the instant case.27
The instant case stems from a petition for certiorari and prohibition, over
which the Supreme Court possesses original jurisdiction.28 More crucially,
this case involves acts of a public official which pertain to restrictive
custody, and is thus impressed with transcendental public importance that
would warrant the relaxation of the general rule. The Court would be
remiss in its constitutional duties were it to dismiss the present petition
solely due to claims of judicial hierarchy.
In David v. Macapagal-Arroyo,29 the Court highlighted the transcendental
public importance involved in cases that concern restrictive custody,
because judicial review in these cases serves as "a manifestation of the
crucial defense of civilians ‘in police power’ cases due to the diminution of
their basic liberties under the guise of a state of emergency."30 Otherwise,
the importance of the high tribunal as the court of last resort would be put
to naught, considering the nature of "emergency" cases, wherein the
proclamations and issuances are inherently short-lived. In finally disposing
of the claim that the issue had become moot and academic, the Court also
cited transcendental public importance as an exception, stating:
Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa mahigpit na
pangangalaga (restrictive custody) at pagmonitor ng galaw (monitoring of
movements) ng nagpepetisyon, dedesisyunan namin ito (a) dahil sa
nangingibabaw na interes ng madla na nakapaloob dito,
(b) dahil sa posibilidad na maaaring maulit ang pangyayari at (c) dahil kailangang
maturuan ang kapulisan tungkol dito.
The moot and academic principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide
cases, otherwise moot and academic, if: first, there is a grave violation of
the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when [the] constitutional issue
raised requires formulation of controlling principles to guide the bench, the
bar, and the public; and fourth, the case is capable of repetition yet evading
review.
…There is no question that the issues being raised affect the public
interest, involving as they do the people’s basic rights to freedom of
expression, of assembly and of the press. Moreover, the
Court has the duty to formulate guiding and controlling constitutional
precepts, doctrines or rules. It has the symbolic function of educating the
bench and the bar, and in the present petitions, the military and the police,
on the extent of the protection given by constitutional guarantees. And
lastly, respondents contested actions are capable of repetition. Certainly,
the petitions are subject to judicial review.
Evidently, the triple reasons We advanced at the start of Our ruling are
justified under the foregoing exceptions. Every bad, unusual incident where
police officers figure in generates public interest and people watch what
will be done or not done to them. Lack of disciplinary steps taken against
them erode public confidence in the police institution. As petitioners
themselves assert, the restrictive custody of policemen under investigation
is an existing practice, hence, the issue is bound to crop up every now and
then. The matter is capable of repetition or susceptible of recurrence. It
better be resolved now for the education and guidance of all
concerned.31 (Emphasis supplied)
Hence, the instant petition is given due course, impressed as it is with
transcendental public importance.
II. Only the President is vested with calling-out powers, as the commander-in-chief of the
Republic
i. One executive, one commander-in-chief
As early as Villena v. Secretary of Interior, 32 it has already been established
that there is one repository of executive powers, and that is the President
of the Republic. This means that when Section 1, Article VII of the
Constitution speaks of executive power, it is granted to the President and
no one else.33 As emphasized by Justice Jose P. Laurel, in his ponencia in
Villena:
With reference to the Executive Department of the government, there is
one purpose which is crystal-clear and is readily visible without the
projection of judicial searchlight, and that is the establishment of a single,
not plural, Executive. The first section of Article VII of the Constitution,
dealing with the Executive Department, begins with the enunciation of the
principle that "The executive power shall be vested in a President of the
Philippines." This means that the President of the Philippines is the
Executive of the Government of the Philippines, and no other.34
Corollarily, it is only the President, as Executive, who is authorized to
exercise emergency powers as provided under Section 23, Article VI, of the
Constitution, as well as what became known as the calling-out powers
under Section 7, Article VII thereof.
ii. The exceptional character of Commander-in-Chief powers dictate that they are
exercised by one president
Springing from the well-entrenched constitutional precept of One
President is the notion that there are certain acts which, by their very
nature, may only be performed by the president as the Head of the State.
One of these acts or prerogatives is the bundle of Commander-in-Chief
powers to which the "calling-out" powers constitutes a portion. The
President’s Emergency Powers, on the other hand, is balanced only by the
legislative act of Congress, as embodied in the second paragraph of Section
23, Article 6 of the Constitution:
Article 6, Sec 23(2). In times of war or other national emergency, the
Congress may, by law, authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease upon the
next adjournment thereof.35
Article 7, Sec 18. The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the public
7
safety requires it, he may, for a period not exceeding sixty days, suspend
the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ of
habeas corpus, the President shall submit a report in person or in writing to
the Congress. The Congress, voting jointly, by a vote of at least a majority
of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and
public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call.36
The power to declare a state of martial law is subject to the Supreme
Court’s authority to review the factual basis thereof. 37 By constitutional
fiat, the calling-out powers, which is of lesser gravity than the power to
declare martial law, is bestowed upon the President alone. As noted in
Villena, "(t)here are certain constitutional powers and prerogatives of the
Chief Executive of the Nation which must be exercised by him in person
and no amount of approval or ratification will validate the exercise of any
of those powers by any other person. Such, for instance, is his power to
suspend the writ of habeas corpus and proclaim martial law x x x. 38
Indeed, while the President is still a civilian, Article II, Section 3 39 of the
Constitution mandates that civilian authority is, at all times, supreme over
the military, making the civilian president the nation’s supreme military
leader. The net effect of Article II, Section 3, when read with Article VII,
Section 18, is that a civilian President is the ceremonial, legal and
administrative head of the armed forces. The Constitution does not require
that the President must be possessed of military training and talents, but as
Commander-in-Chief, he has the power to direct military operations and to
determine military strategy. Normally, he would be expected to delegate the
actual command of the armed forces to military experts; but the ultimate
power is his.40 As Commander-in-Chief, he is authorized to direct the
movements of the naval and military forces placed by law at his command,
and to employ them in the manner he may deem most effectual. 41
In the case of Integrated Bar of the Philippines v. Zamora,42 the Court had
occasion to rule that the calling-out powers belong solely to the President
as commander-in-chief:
When the President calls the armed forces to prevent or suppress lawless
violence, invasion or rebellion, he necessarily exercises a discretionary
power solely vested in his wisdom. This is clear from the intent of the
framers and from the text of the Constitution itself. The Court, thus,
cannot be called upon to overrule the President’s wisdom or substitute its
own. However, this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it
was exercised in a manner constituting grave abuse of discretion. In view
of the constitutional intent to give the President full discretionary power to
determine the necessity of calling out the armed forces, it is incumbent
upon the petitioner to show that the President’s decision is totally bereft of
factual basis.
There is a clear textual commitment under the Constitution to bestow on
the President full discretionary power to call out the armed forces and to
determine the necessity for the exercise of such power.43 (Emphasis
supplied)
Under the foregoing provisions, Congress may revoke such proclamation
or suspension and the Court may review the sufficiency of the factual basis
thereof. However, there is no such equivalent provision dealing with the
revocation or review of the President’s action to call out the armed forces.
The distinction places the calling out power in a different category from
the power to declare martial law and the power to suspend the privilege of
the writ of habeas corpus, otherwise, the framers of the Constitution would
have simply lumped together the three powers and provided for their
revocation and review without any qualification.44
That the power to call upon the armed forces is discretionary on the
president is clear from the deliberation of the Constitutional Commission:
FR. BERNAS. It will not make any difference. I may add that there is a
graduated power of the President as Commander-in-Chief. First, he can
call out such Armed Forces as may be necessary to suppress lawless
violence; then he can suspend the privilege of the writ of habeas corpus,
then he can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the
privilege of the writ of habeas corpus, his judgment is subject to review.
We are making it subject to review by the Supreme Court and subject to
concurrence by the National Assembly. But when he exercises this lesser
power of calling on the Armed Forces, when he says it is necessary, it is my
opinion that his judgment cannot be reviewed by anybody.
xxx xxx xxx
MR. REGALADO. That does not require any concurrence by the
legislature nor is it subject to judicial review.
The reason for the difference in the treatment of the aforementioned
powers highlights the intent to grant the President the widest leeway and
broadest discretion in using the power to call out because it is considered
as the lesser and more benign power compared to the power to suspend
the privilege of the writ of habeas corpus and the power to impose martial
law, both of which involve the curtailment and suppression of certain basic
civil rights and individual freedoms, and thus necessitating safeguards by
Congress and review by this Court.
x x x Thus, it is the unclouded intent of the Constitution to vest upon the
President, as Commander-in-Chief of the Armed Forces, full discretion to
call forth the military when in his judgment it is necessary to do so in order
to prevent or suppress lawless violence, invasion or rebellion. 45 (Emphasis
Supplied)
In the more recent case of Constantino, Jr. v. Cuisia, 46 the Court
characterized these powers as exclusive to the President, precisely because
they are of exceptional import:
These distinctions hold true to this day as they remain embodied in our
fundamental law. There are certain presidential powers which arise out of
exceptional circumstances, and if exercised, would involve the suspension
of fundamental freedoms, or at least call for the supersedence of executive
prerogatives over those exercised by co-equal branches of government.
The declaration of martial law, the suspension of the writ of habeas corpus,
and the exercise of the pardoning power, notwithstanding the judicial
determination of guilt of the accused, all fall within this special class that
demands the exclusive exercise by the President of the constitutionally
vested power. The list is by no means exclusive, but there must be a
showing that the executive power in question is of similar gravitas and
exceptional import.47
In addition to being the commander-in-chief of the armed forces, the
President also acts as the leader of the country’s police forces, under the
mandate of Section 17, Article VII of the Constitution, which provides
that, "The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed."
During the deliberations of the Constitutional Commission on the framing
of this provision, Fr. Bernas defended the retention of the word "control,"
employing the same rationale of singularity of the office of the president, as
the only Executive under the presidential form of government.48
Regarding the country’s police force, Section 6, Article XVI of the
Constitution states that: "The State shall establish and maintain one police
force, which shall be national in scope and civilian in character, to be
administered and controlled by a national police commission. The authority
of local executives over the police units in their jurisdiction shall be
provided by law."49
A local chief executive, such as the provincial governor, exercises
operational supervision over the police,50 and may exercise control only in
day-to-day operations, viz:
8
Mr. Natividad: By experience, it is not advisable to provide either in our
Constitution or by law full control of the police by the local chief executive
and local executives, the mayors. By our experience, this has spawned
warlordism, bossism and sanctuaries for vices and abuses. If the national
government does not have a mechanism to supervise these 1,500 legally,
technically separate police forces, plus 61 city police forces, fragmented
police system, we will have a lot of difficulty in presenting a modern
professional police force. So that a certain amount of supervision and
control will have to be exercised by the national government.
For example, if a local government, a town cannot handle its peace and
order problems or police problems, such as riots, conflagrations or
organized crime, the national government may come in, especially if
requested by the local executives. Under that situation, if they come in
under such an extraordinary situation, they will be in control. But if the
day-to-day business of police investigation of crime, crime prevention,
activities, traffic control, is all lodged in the mayors, and if they are in
complete operational control of the day-to-day business of police service,
what the national government would control would be the administrative
aspect.
xxx xxx xxx
Mr. de los Reyes: so the operational control on a day-to-day basis, meaning,
the usual duties being performed by the ordinary policemen, will be under
the supervision of the local executives?
Mr. Natividad: Yes, Madam President.
xxx xxx xxx
Mr. de los Reyes: But in exceptional cases, even the operational control can
be taken over by the National Police Commission?
Mr. Natividad: If the situation is beyond the capacity of the local
governments.51 (Emphases supplied)
Furthermore according to the framers, it is still the President who is
authorized to exercise supervision and control over the police, through the
National Police Commission:
Mr. Rodrigo: Just a few questions. The President of the Philippines is the
Commander-in-Chief of all the armed forces.
Mr. Natividad: Yes, Madam President.
Mr. Rodrigo: Since the national police is not integrated with the armed
forces, I do not suppose they come under the Commander-in-Chief
powers of the President of the Philippines.
Mr. Natividad: They do, Madam President. By law, they are under the
supervision and control of the President of the Philippines.
Mr. Rodrigo: Yes, but the President is not the Commander-in-Chief of the
national police.
Mr. Natividad: He is the President.
Mr. Rodrigo: Yes, the Executive. But they do not come under that specific
provision that the President is the Commander-in-Chief of all the armed
forces.
Mr. Natividad: No, not under the Commander-in-Chief provision.
Mr. Rodrigo: There are two other powers of the President. The
President has control over ministries, bureaus and offices, and supervision
over local governments. Under which does the police fall, under control or
under supervision?
Mr. Natividad: Both, Madam President.
Mr. Rodrigo: Control and supervision.
Mr. Natividad: Yes, in fact, the National Police Commission is under the
Office of the President.52
In the discussions of the Constitutional Commission regarding the above provision it is
clear that the framers never intended for local chief executives to exercise unbridled control
over the police in emergency situations. This is without prejudice to their authority
over police units in their jurisdiction as provided by law, and their
prerogative to seek assistance from the police in day to day situations, as
contemplated by the Constitutional Commission. But as a civilian agency
of the government, the police, through the NAPOLCOM, properly comes
within, and is subject to, the exercise by the President of the power of
executive control.53
iii. The provincial governor does not possess the same calling-out powers as the President
Given the foregoing, respondent provincial governor is not endowed with
the power to call upon the armed forces at his own bidding. In issuing the
assailed proclamation, Governor Tan exceeded his authority when he
declared a state of emergency and called upon the Armed Forces, the
police, and his own Civilian Emergency Force. The calling-out powers
contemplated under the Constitution is exclusive to the President. An
exercise by another official, even if he is the local chief executive, is ultra
vires, and may not be justified by the invocation of Section 465 of the
Local Government Code, as will be discussed subsequently.
Respondents, however, justify this stance by stating that nowhere in the
seminal case of David v. Arroyo, which dealt squarely with the issue of the
declaration of a state of emergency, does it limit the said authority to the
President alone. Respondents contend that the ruling in David expressly
limits the authority to declare a national emergency, a condition which
covers the entire country, and does not include emergency situations in
local government units.54 This claim is belied by the clear intent of the
framers that in all situations involving threats to security, such as lawless
violence, invasion or rebellion, even in localized areas, it is still the
President who possesses the sole authority to exercise calling-out powers.
As reflected in the Journal of the Constitutional Commission:
Thereafter, Mr. Padilla proposed on line 29 to insert the phrase OR
PUBLIC DISORDER in lieu of "invasion or rebellion." Mr. Sumulong
stated that the committee could not accept the amendment because under
the first section of Section 15, the President may call out and make use of
the armed forces to prevent or suppress not only lawless violence but even
invasion or rebellion without declaring martial law. He observed that by
deleting "invasion or rebellion" and substituting PUBLIC DISORDER, the
President would have to declare martial law before he can make use of the
armed forces to prevent or suppress lawless invasion or rebellion.
Mr. Padilla, in reply thereto, stated that the first sentence contemplates a
lighter situation where there is some lawless violence in a small portion of
the country or public disorder in another at which times, the armed forces
can be called to prevent or suppress these incidents. He noted that the
Commander-in-Chief can do so in a minor degree but he can also exercise
such powers should the situation worsen. The words "invasion or
rebellion" to be eliminated on line 14 are covered by the following sentence
which provides for "invasion or rebellion." He maintained that the
proposed amendment does not mean that under such circumstances, the
President cannot call on the armed forces to prevent or suppress the
same.55 (Emphasis supplied)
III. Section 465 of the Local
Government Code cannot be invoked to justify the powers enumerated under
Proclamation 1-09
Respondent governor characterized the kidnapping of the three ICRC
workers as a terroristic act, and used this incident to justify the exercise of
the powers enumerated under Proclamation 1-09.56 He invokes Section
465, in relation to Section 16, of the Local Government Code, which
purportedly allows the governor to carry out emergency measures and call
upon the appropriate national law enforcement agencies for assistance. But
a closer look at the said proclamation shows that there is no provision in
the Local Government Code nor in any law on which the broad and
unwarranted powers granted to the Governor may be based.
Petitioners cite the implementation of "General Search and Seizure
including arrests in the pursuit of the kidnappers and their supporters," 57 as
being violative of the constitutional proscription on general search warrants
and general seizures. Petitioners rightly assert that this alone would be
sufficient to render the proclamation void, as general searches and seizures
are proscribed, for being violative of the rights enshrined in the Bill of
Rights, particularly:
The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized. 58
9
In fact, respondent governor has arrogated unto himself powers exceeding
even the martial law powers of the President, because as the Constitution
itself declares, "A state of martial law does not suspend the operation of
the Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of the jurisdiction on
military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ." 59
We find, and so hold, that there is nothing in the Local Government Code
which justifies the acts sanctioned under the said Proclamation. Not even
Section 465 of the said Code, in relation to Section 16, which states:
Section 465. The Chief Executive: Powers, Duties, Functions, and
Compensation.
xxx xxx xxx
(b) For efficient, effective and economical governance the purpose of
which is the general welfare of the province and its inhabitants pursuant to
Section 16 of this Code, the provincial governor shall:
(1) Exercise general supervision and control over all programs, projects,
services, and activities of the provincial government, and in this
connection, shall:
xxx xxx xxx
(vii) Carry out such emergency measures as may be necessary during and in
the aftermath of man-made and natural disasters and calamities;
(2) Enforce all laws and ordinances relative to the governance of the
province and the exercise of the appropriate corporate powers provided
for under Section 22 of this Code, implement all approved policies,
programs, projects, services and activities of the province and, in addition
to the foregoing, shall:
xxx xxx xxx
(vi) Call upon the appropriate national law enforcement agencies to
suppress disorder, riot, lawless violence, rebellion or sedition or to
apprehend violators of the law when public interest so requires and the
police forces of the component city or municipality where the disorder or
violation is happening are inadequate to cope with the situation or the
violators.
Section 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. (Emphases
supplied)
Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465
above, as the said provision expressly refers to calamities and disasters,
whether man-made or natural. The governor, as local chief executive of the
province, is certainly empowered to enact and implement emergency
measures during these occurrences. But the kidnapping incident in the case
at bar cannot be considered as a calamity or a disaster. Respondents cannot
find any legal mooring under this provision to justify their actions.
Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable
for two reasons. First, the Armed Forces of the Philippines does not fall
under the category of a "national law enforcement agency," to which the
National Police Commission (NAPOLCOM) and its departments belong.
Its mandate is to uphold the sovereignty of the Philippines, support the
Constitution, and defend the Republic against all enemies, foreign and
domestic. Its aim is also to secure the integrity of the national territory. 60
Second, there was no evidence or even an allegation on record that the
local police forces were inadequate to cope with the situation or apprehend
the violators. If they were inadequate, the recourse of the provincial
governor was to ask the assistance of the Secretary of Interior and Local
Government, or such other authorized officials, for the assistance of
national law enforcement agencies.
The Local Government Code does not involve the diminution of central
powers inherently vested in the National Government, especially not the
prerogatives solely granted by the Constitution to the President in matters
of security and defense.
The intent behind the powers granted to local government units is fiscal,
economic, and administrative in nature.1âwphi1 The Code is concerned
only with powers that would make the delivery of basic services more
effective to the constituents,61 and should not be unduly stretched to confer
calling-out powers on local executives.
In the sponsorship remarks for Republic Act 7160, it was stated that the
devolution of powers is a step towards the autonomy of local government
units (LGUs), and is actually an experiment whose success heavily relies on
the power of taxation of the LGUs. The underpinnings of the Code can be
found in Section 5, Article II of the 1973 Constitution, which allowed
LGUs to create their own sources of revenue.62 During the interpellation
made by Mr. Tirol addressed to Mr. de Pedro, the latter emphasized that
"Decentralization is an administrative concept and the process of shifting
and delegating power from a central point to subordinate levels to promote
independence, responsibility, and quicker decision-making. … (I)t does not
involve any transfer of final authority from the national to field levels, nor diminution of
central office powers and responsibilities. Certain government agencies, including the police
force, are exempted from the decentralization process because their functions are not
inherent in local government units."63
IV. Provincial governor is not authorized to convene CEF
Pursuant to the national policy to establish one police force, the
organization of private citizen armies is proscribed. Section 24 of Article
XVIII of the Constitution mandates that:
Private armies and other armed groups not recognized by duly constituted
authority shall be dismantled. All paramilitary forces including Civilian
Home Defense Forces (CHDF) not consistent with the citizen armed force
established in this Constitution, shall be dissolved or, where appropriate,
converted into the regular force.
Additionally, Section 21of Article XI states that, "The preservation of
peace and order within the regions shall be the responsibility of the local
police agencies which shall be organized, maintained, supervised, and
utilized in accordance with applicable laws. The defense and security of the
regions shall be the responsibility of the National Government."
Taken in conjunction with each other, it becomes clear that the
Constitution does not authorize the organization of private armed groups
similar to the CEF convened by the respondent Governor. The framers of
the Constitution were themselves wary of armed citizens’ groups, as shown
in the following proceedings:
MR. GARCIA: I think it is very clear that the problem we have here is a
paramilitary force operating under the cloak, under the mantle of legality is
creating a lot of problems precisely by being able to operate as an
independent private army for many regional warlords. And at the same
time, this I think has been the thrust, the intent of many of the discussions
and objections to the paramilitary units and the armed groups.
MR. PADILLA: My proposal covers two parts: the private armies of
political warlords and other armed torces not recognized by constituted
authority which shall be dismantled and dissolved. In my trips to the
provinces, I heard of many abuses committed by the CHDF (Civilian
Home Defense Forces), specially in Escalante, Negros Occidental. But I do
not know whether a particular CHDF is approved or authorized by
competent authority. If it is not authorized, then the CHDF will have to be
10
dismantled. If some CHDFs, say in other provinces, are authorized by
constituted authority, by the Armed Forces of the Philippines, through the
Chief of Staff or the Minister of National Defense, if they are recognized
and authorized, then they will not be dismantled. But I cannot give a
categorical answer to any specific CHDF unit, only the principle that if
they are armed forces which are not authorized, then they should be
dismantled. 64 (Emphasis supplied)
Thus, with the discussions in the Constitutional Commission as guide, the
creation of the Civilian Emergency Force (CEF) in the present case, is also
invalid.
WHEREFORE, the instant petition is GRANTED. Judgment is rendered
commanding respondents to desist from further proceedings m
implementing Proclamation No. 1, Series of 2009, and its Implementing
Guidelines. The said proclamation and guidelines are hereby declared
NULL and VOID for having been issued in grave abuse of discretion,
amounting to lack or excess of jurisdiction.
SO ORDERED.
G.R. No. L-24670 December 14, 1979
ORTIGAS & CO., LIMITED PARTNERSHIP, plaintiff-appellant,
vs.
FEATI BANK AND TRUST CO., defendant-appellee.
Ramirez & Ortigas for appellant.
Tañada, Teehankee & Carreon for appellee.
SANTOS, J.:
An appeal interposed on June 23, 1965 by plaintiff-appellant, Ortigas &
Co., Limited Partnership, from the decision of the Court of First Instance
of Rizal, Branch VI, at Pasig, Hon. Andres Reyes presiding, which
dismissed its complaint in Civil Case No. 7706, entitled, "Ortigas &
Company, Limited Partnership, plaintiff, v. Feati Bank and Trust
Company, defendant," for lack of merit.
The following facts — a reproduction of the lower court's findings, which,
in turn, are based on a stipulation of facts entered into by the parties are
not disputed. Plaintiff (formerly known as "Ortigas, Madrigal y Cia") is a
limited partnership and defendant Feati Bank and Trust Co., is a
corporation duly organized and existing in accordance with the laws of the
Philippines. Plaintiff is engaged in real estate business, developing and
selling lots to the public, particularly the Highway Hills Subdivision along
Epifanio de los Santos Avenue, Mandaluyong, Rizal. 1
On March 4, 1952, plaintiff, as vendor, and Augusto Padilla y Angeles and
Natividad Angeles, as vendees, entered into separate agreements of sale on
installments over two parcels of land, known as Lots Nos. 5 and 6, Block
31, of the Highway Hills Subdivision, situated at Mandaluyong, Rizal. On
July 19, 1962, the said vendees transferred their rights and interests over
the aforesaid lots in favor of one Emma Chavez. Upon completion of
payment of the purchase price, the plaintiff executed the corresponding
deeds of sale in favor of Emma Chavez. Both the agreements (of sale on
installment) and the deeds of sale contained the stipulations or restrictions
that:
1. The parcel of land subject of this deed of sale shall be used the Buyer
exclusively for residential purposes, and she shall not be entitled to take or
remove soil, stones or gravel from it or any other lots belonging to the
Seller.
2. All buildings and other improvements (except the fence) which may be
constructed at any time in said lot must be, (a) of strong materials and
properly painted, (b) provided with modern sanitary installations connected
either to the public sewer or to an approved septic tank, and (c) shall not
be at a distance of less than two (2) meters from its boundary lines. 2
The above restrictions were later annotated in TCT Nos. 101509 and
101511 of the Register of Deeds of Rizal, covering the said lots and issued
in the name of Emma Chavez.3
Eventually, defendant-appellee acquired Lots Nos. 5 and 6, with TCT Nos.
101613 and 106092 issued in its name, respectively and the building
restrictions were also annotated therein. 4 Defendant-appellee bought Lot
No. 5 directly from Emma Chavez, "free from all liens and encumbrances
as stated in Annex 'D', 5 while Lot No. 6 was acquired from Republic Flour
Mills through a "Deed of Exchange," Annex "E". 6 TCT No. 101719 in the
name of Republic Flour Mills likewise contained the same restrictions,
although defendant-appellee claims that Republic Flour Mills purchased the
said Lot No. 6 "in good faith. free from all liens and encumbrances," as
stated in the Deed of Sale, Annex "F" 7 between it and Emma Chavez.
Plaintiff-appellant claims that the restrictions annotated on TCT Nos.
101509, 101511, 101719, 101613, and 106092 were imposed as part of its
general building scheme designed for the beautification and development
of the Highway Hills Subdivision which forms part of the big landed estate
of plaintiff-appellant where commercial and industrial sites are also
designated or established. 8
Defendant-appellee, upon the other hand, maintains that the area along the
western part of Epifanio de los Santos Avenue (EDSA) from Shaw
Boulevard to Pasig River, has been declared a commercial and industrial
zone, per Resolution No. 27, dated February 4, 1960 of the Municipal
Council of Mandaluyong, Rizal. 9 It alleges that plaintiff-appellant
'completely sold and transferred to third persons all lots in said subdivision
facing Epifanio de los Santos Avenue" 10 and the subject lots thereunder
were acquired by it "only on July 23, 1962 or more than two (2) years after
the area ... had been declared a commercial and industrial zone ... 11
On or about May 5, 1963, defendant-appellee began laying the foundation
and commenced the construction of a building on Lots Nos. 5 and 6, to be
devoted to banking purposes, but which defendant-appellee claims could
also be devoted to, and used exclusively for, residential purposes. The
following day, plaintiff-appellant demanded in writing that defendant-
appellee stop the construction of the commerical building on the said lots.
The latter refused to comply with the demand, contending that the building
was being constructed in accordance with the zoning regulations,
defendant-appellee having filed building and planning permit applications
with the Municipality of Mandaluyong, and it had accordingly obtained
building and planning permits to proceed with the construction.12
On the basis of the foregoing facts, Civil Case No. 7706, supra, was
submitted in the lower court for decision. The complaint sought, among
other things, the issuance of "a writ of preliminary injunction ... restraining
and enjoining defendant, its agents, assigns, and those acting on its or their
behalf from continuing or completing the construction of a commercial
bank building in the premises ... involved, with the view to commanding
the defendant to observe and comply with the building restrictions
annotated in the defendant's transfer certificate of title."
In deciding the said case, the trial court considered, as the fundamental
issue, whether or not the resolution of the Municipal Council of
Mandaluyong declaring Lots Nos. 5 and 6, among others, as part of the
commercial and industrial zone of the municipality, prevailed over the
building restrictions imposed by plaintiff-appellant on the lots in
question. 13 The records do not show that a writ of preliminary injunction
was issued.
The trial court upheld the defendant-appellee and dismissed the complaint,
holding that the subject restrictions were subordinate to Municipal
Resolution No. 27, supra. It predicated its conclusion on the exercise of
police power of the said municipality, and stressed that private interest
should "bow down to general interest and welfare. " In short, it upheld the
classification by the Municipal Council of the area along Epifanio de los
Santos Avenue as a commercial and industrial zone, and held that the same
rendered "ineffective and unenforceable" the restrictions in question as
against defendant-appellee.14 The trial court decision further emphasized
that it "assumes said resolution to be valid, considering that there is no
issue raised by either of the parties as to whether the same is null and
void. 15
On March 2, 1965, plaintiff-appellant filed a motion for reconsideration of
the above decision, 16 which motion was opposed by defendant-appellee on
March 17, 1965.17 It averred, among others, in the motion for
reconsideration that defendant- appellee "was duty bound to comply with
the conditions of the contract of sale in its favor, which conditions were
duly annotated in the Transfer Certificates of Title issued in her (Emma
Chavez) favor." It also invited the trial court's attention to its claim that the
11
Municipal Council had (no) power to nullify the contractual obligations
assumed by the defendant corporation." 18
The trial court denied the motion for reconsideration in its order of March
26, 1965. 19
On April 2, 1965 plaintiff-appellant filed its notice of appeal from the
decision dismissing the complaint and from the order of March 26, 1965
denying the motion for reconsideration, its record on appeal, and a cash
appeal bond." 20 On April 14, the appeal was given due course 21 and the
records of the case were elevated directly to this Court, since only
questions of law are raised. 22
Plaintiff-appellant alleges in its brief that the trial court erred —
I. When it sustained the view that Resolution No. 27, series of 1960 of the
Municipal Council of Mandaluyong, Rizal declaring Lots Nos. 5 and 6,
among others, as part of the commercial and industrial zone, is valid
because it did so in the exercise of its police power; and
II. When it failed to consider whether or not the Municipal Council had the
power to nullify the contractual obligations assumed by defendant-appellee
and when it did not make a finding that the building was erected along the
property line, when it should have been erected two meters away from said
property line. 23
The defendant-appellee submitted its counter-assignment of errors. In this
connection, We already had occasion to hold in Relativo v. Castro 24 that "(I)t
is not incumbent on the appellee, who occupies a purely defensive
position, and is seeking no affirmative relief, to make assignments of error,
" municipality should be "liberally construed in its favor" and that "(A)ny fair
The only issues to be resolved, therefore, are: (1) whether Resolution No.
27 s-1960 is a valid exercise of police power; and (2) whether the said
Resolution can nullify or supersede the contractual obligations assumed by
defendant-appellee.
1. The contention that the trial court erred in sustaining the validity of
Resolution No. 27 as an exercise of police power is without merit. In the
first place, the validity of the said resolution was never questioned before it.
The rule is that the question of law or of fact which may be included in the
appellant's assignment of errors must be those which have been raised in
the court below, and are within the issues framed by the parties. 25 The
object of requiring the parties to present all questions and issues to the
lower court before they can be presented to the appellate court is to enable
the lower court to pass thereon, so that the appellate court upon appeal
may determine whether or not such ruling was erroneous. The requirement
is in furtherance of justice in that the other party may not be taken by
surprise. 26 The rule against the practice of blowing "hot and cold" by
assuming one position in the trial court and another on appeal will, in the
words of Elliot, prevent deception. 27 For it is well-settled that issues or
defenses not raised 28 or properly litigated 29 or pleaded 30 in the Court
below cannot be raised or entertained on appeal.
In this particular case, the validity of the resolution was admitted at least
impliedly, in the stipulation of facts below. when plaintiff-appellant did not
dispute the same. The only controversy then as stated by the trial court was
whether or not the resolution of the Municipal Council of Mandaluyong ...
which declared lots Nos. 4 and 5 among others, as a part of the commercial
and industrial zone of the municipality, prevails over the restrictions
constituting as encumbrances on the lots in question. 31 Having admitted
the validity of the subject resolution below, even if impliedly, plaintiff-
appellant cannot now change its position on appeal.
But, assuming arguendo that it is not yet too late in the day for plaintiff-
appellant to raise the issue of the invalidity of the municipal resolution in
question, We are of the opinion that its posture is unsustainable. Section 3
of R.A. No. 2264, otherwise known as the Local Autonomy
Act," 32 empowers a Municipal Council "to adopt zoning and subdivision
ordinances or regulations"; 33 for the municipality. Clearly, the law does not
restrict the exercise of the power through an ordinance. Therefore,
granting that Resolution No. 27 is not an ordinance, it certainly is a
regulatory measure within the intendment or ambit of the word
"regulation" under the provision. As a matter of fact the same section
declares that the power exists "(A)ny provision of law to the contrary
notwithstanding ... "
An examination of Section 12 of the same law 34 which prescribes the rules
for its interpretation likewise reveals that the implied power of a
and reasonable doubt as to the existence of the power should be
interpreted in favor of the local government and it shall be presumed to
exist." The same section further mandates that the general welfare clause
be liberally interpreted in case of doubt, so as to give more power to local
governments in promoting the economic conditions, social welfare and
material progress of the people in the community. The only exceptions
under Section 12 are existing vested rights arising out of a contract between
"a province, city or municipality on one hand and a third party on the
other," in which case the original terms and provisions of the contract
should govern. The exceptions, clearly, do not apply in the case at bar.
2. With regard to the contention that said resolution cannot nullify the
contractual obligations assumed by the defendant-appellee – referring to
the restrictions incorporated in the deeds of sale and later in the
corresponding Transfer Certificates of Title issued to defendant-appellee –
it should be stressed, that while non-impairment of contracts is
constitutionally guaranteed, the rule is not absolute, since it has to be
reconciled with the legitimate exercise of police power, i.e., "the power to
prescribe regulations to promote the health, morals, peace, education, good
order or safety and general welfare of the people. 35 Invariably described as
"the most essential, insistent, and illimitable of powers" 36 and "in a sense,
the greatest and most powerful attribute of government, 37 the exercise of
the power may be judicially inquired into and corrected only if it is
capricious, 'whimsical, unjust or unreasonable, there having been a denial
of due process or a violation of any other applicable constitutional
guarantee. 38 As this Court held through Justice Jose P. Bengzon
in Philippine Long Distance Company vs. City of Davao, et al. 39 police power "is
elastic and must be responsive to various social conditions; it is not,
confined within narrow circumscriptions of precedents resting on past
conditions; it must follow the legal progress of a democratic way of life."
We were even more emphatic in Vda. de Genuino vs. The Court of Agrarian
Relations, et al., 40 when We declared: "We do not see why public welfare
when clashing with the individual right to property should not be made to
prevail through the state's exercise of its police power.
Resolution No. 27, s-1960 declaring the western part of highway 54, now
E. de los Santos Avenue (EDSA, for short) from Shaw Boulevard to the
Pasig River as an industrial and commercial zone, was obviously passed by
the Municipal Council of Mandaluyong, Rizal in the exercise of police
power to safeguard or promote the health, safety, peace, good order and
general welfare of the people in the locality, Judicial notice may be taken of
the conditions prevailing in the area, especially where lots Nos. 5 and 6 are
located. The lots themselves not only front the highway; industrial and
commercial complexes have flourished about the place. EDSA, a main
traffic artery which runs through several cities and municipalities in the
Metro Manila area, supports an endless stream of traffic and the resulting
activity, noise and pollution are hardly conducive to the health, safety or
welfare of the residents in its route. Having been expressly granted the
power to adopt zoning and subdivision ordinances or regulations, the
municipality of Mandaluyong, through its Municipal 'council, was
reasonably, if not perfectly, justified under the circumstances, in passing the
subject resolution.
The scope of police power keeps expanding as civilization advances,
stressed this Court, speaking thru Justice Laurel in the leading case
of Calalang v. Williams et al., 41 Thus-
As was said in the case of Dobbins v. Los Angeles (195 US 223, 238 49 L. ed.
169), 'the right to exercise the police power is a continuing one, and a business lawful
today may in the future, because of changed situation, the growth of population or other
causes, become a menace to the public health and welfare, and be required to yield to the
public good.' And in People v. Pomar (46 Phil. 440), it was observed
that 'advancing civilization is bringing within the scope of police power of the state today
things which were not thought of as being with in such power yesterday. The
development of civilization), the rapidly increasing population, the growth
of public opinion, with an increasing desire on the part of the masses and
of the government to look after and care for the interests of the individuals
of the state, have brought within the police power many questions for
regulation which formerly were not so considered. 42 (Emphasis, supplied.)
12
Thus, the state, in order to promote the general welfare, may interfere with
personal liberty, with property, and with business and occupations. Persons
may be subjected to all kinds of restraints and burdens, in order to secure
the general comfort health and prosperity of the state 43 and to this
fundamental aim of our Government, the rights of the individual are
subordinated. 44
The need for reconciling the non-impairment clause of the Constitution
and the valid exercise of police power may also be gleaned from Helvering v.
Davis 45 wherein Mr. Justice Cardozo, speaking for the Court, resolved the
conflict "between one welfare and another, between particular and general,
thus —
Nor is the concept of the general welfare static. Needs that were narrow or
parochial a century ago may be interwoven in our day with the well-being of the
nation what is critical or urgent changes with the times. 46
The motives behind the passage of the questioned resolution being
reasonable, and it being a “legitimate response to a felt public need," 47 not
whimsical or oppressive, the non-impairment of contracts clause of the
Constitution will not bar the municipality's proper exercise of the power.
Now Chief Justice Fernando puts it aptly when he declared: "Police power
legislation then is not likely to succumb to the challenge that thereby
contractual rights are rendered nugatory."
Furthermore, We restated in Philippine American Life Ins. Co. v. Auditor
General49 that laws and reservation of essential attributes of sovereign
power are read into contracts agreed upon by the parties. Thus —
Not only are existing laws read into contracts in order to fix obligations as
between the parties, but the reservation of essential attributes of sovereign power is
also read into contracts as a postulate of the legal order. The policy of protecting
contracts against impairments presupposes the maintenance of a
government by virtue of which contractual relations are worthwhile – a
government which retains adequate authority to secure the peace and good
order of society.
Again, We held in Liberation Steamship Co., Inc. v. Court of Industrial
Relations, 50 through Justice J.B.L. Reyes, that ... the law forms part of, and
is read into, every contract, unless clearly excluded therefrom in those cases
where such exclusion is allowed." The decision in Maritime Company of the
Philippines v. Reparations Commission, written for the Court by Justice
Fernando, now Chief Justice, restates the rule.
One last observation. Appellant has placed unqualified reliance on
American jurisprudence and authorities 52 to bolster its theory that the
municipal resolution in question cannot nullify or supersede the agreement
of the parties embodied in the sales contract, as that, it claims, would
impair the obligation of contracts in violation of the Constitution. Such
reliance is misplaced.
In the first place, the views set forth in American decisions and authorities
are not per se controlling in the Philippines, the laws of which must
necessarily be construed in accordance with the intention of its own
lawmakers and such intent may be deduced from the language of each law
and the context of other local legislation related thereto. 53 and Burgess, et al
v. Magarian, et al., two of the cases cited by plaintiff-appellant, lend support
to the conclusion reached by the trial court, i.e. that the municipal
resolution supersedes/supervenes over the contractual undertaking
between the parties. Dolan v. Brown, states that "Equity will not, as a rule,
enforce a restriction upon the use of property by injunction where the property
has so changed in character and environment as to make it unfit or unprofitable for use
should the restriction be enforced, but will, in such a case, leave the complainant
to whatever remedy he may have at law. 56 (Emphasis supplied.) Hence, the
remedy of injunction in Dolan vs. Brown was denied on the specific holding
that "A grantor may lawfully insert in his deed conditions or restrictions
which are not against public policy and do not materially impair the
beneficial enjoyment of the estate. 57 Applying the principle just stated to
the present controversy, We can say that since it is now unprofitable, nay a
hazard to the health and comfort, to use Lots Nos. 5 and 6 for strictly
residential purposes, defendants- appellees should be permitted, on the
strength of the resolution promulgated under the police power of the
municipality, to use the same for commercial purposes. In Burgess v.
Magarian et al. it was, held that "restrictive covenants running with the land
are binding on all subsequent purchasers ... " However, Section 23 of the
zoning ordinance involved therein contained a proviso expressly declaring
that the ordinance was not intended "to interfere with or abrogate or annul
any easements, covenants or other agreement between parties." 58 In the
case at bar, no such proviso is found in the subject resolution.
It is, therefore, clear that even if the subject building restrictions were
assumed by the defendant-appellee as vendee of Lots Nos. 5 and 6, in the
corresponding deeds of sale, and later, in Transfer Certificates of Title Nos.
101613 and 106092, the contractual obligations so assumed cannot prevail
over Resolution No. 27, of the Municipality of Mandaluyong, which has
validly exercised its police power through the said resolution. Accordingly,
the building restrictions, which declare Lots Nos. 5 and 6 as residential,
cannot be enforced.
IN VIEW OF THE FOREGOING, the decision appealed from,
dismissing the complaint, is hereby AFFIRMED. "without pronouncement
as to costs.
SO ORDERED.
[G.R. NO. 198860 - July 23, 2012]
ABRAHAM RIMANDO, Petitioner, v. NAGUILIAN EMISSION
TESTING CENTER, INC., represented by its President,
ROSEMARIE LLARENAS and HON. COURT OF
APPEALS, Respondents.
RESOLUTION
REYES, J.:
Before us is a Petition for Review on Certiorari 1 under Rule 45 of the Rules
of Court seeking to annul and set aside Decision2 dated March 30, 2011 of
the Court of Appeals (CA) in CA-G.R. SP NO. 112152.
The Facts
The present controversy stemmed from a petition for mandamus and
damages filed before Branch 67 of the Regional Trial Court (RTC) of
Bauang, La Union, by Naguilian Emission Testing Center, Inc., represented
by its President, Rosemarie Llarenas (respondent) against Abraham P.
Rimando (petitioner), who, at the time material to the case, was the sitting
mayor of the Municipality of Naguilian, La Union.
The petition prayed for the issuance of a writ of mandamus to compel the
petitioner to issue a business permit in favor of the respondent.
In support of its plea, the respondent claimed that its business is being
conducted on a parcel of land which formerly belonged to the national
government but later on certified by the Department of Environment and
Natural Resources (DENR) as an alienable and disposable land of the
public domain. The respondent had operated its business of emission
testing on the land from 2005 to 2007. On January 18, 2008, the
respondent filed an application for the renewal of its business permit and
paid the corresponding fees therefor.
The petitioner, however, refused to issue a business permit unless and until
the respondent executes a contract of lease with the Municipality of
Naguilian. The respondent was amenable to signing such contract subject
to some proposed revisions, which, however, were not acceptable to the
petitioner. The parties did not reach a common ground hence, the petition
for mandamus .
The Ruling of the RTC
On May 26, 2009, the RTC denied the petition3 for lack of merit based on
the ratiocinations that: (a) the Municipality of Naguilian is the declared
owner of the subject parcel of land by virtue of Tax Declaration No. 002-
01197; (b) under Section 6A.01 of the Revenue Code of the Municipality of
Naguilian, the municipality has the right to require the petitioner to sign a
contract of lease because its business operation is being conducted on a
real property owned by the municipality; and (c) a mayor s duty to issue
13
business permits is discretionary in nature which may not be enforced by
a mandamus writ. The decretal portion of the decision reads:ςrαlαω
WHEREFORE, premises considered, the petition is DENIED for lack of
merit.
SO ORDERED.4ςrνll
The Ruling of the CA
Unwaivering, the respondent appealed to the CA. In its Decision5 dated
March 30, 2011, the CA held that the appeal was dismissible on the ground
of mootness considering that the period for which the business period was
being sought had already lapsed. As such, any ruling on the matter would
bring no practical relief. Nonetheless, the CA proceeded to resolve the
issues involved in the appeal for academic purposes.
The CA disagreed with the RTC and found that the factual milieu of the
case justifies the issuance of a writ of mandamus . The CA reasoned that the
tax declaration in the name of the municipality was insufficient basis to
require the execution of a contract of lease as a condition sine qua non for
the renewal of a business permit. The CA further observed that
Sangguniang Bayan Resolution No. 2007-81, upon which the municipality
anchored its imposition of rental fees, was void because it failed to comply
with the requirements of the Local Government Code and its
Implementing Rules and Regulations.
The CA held that the petitioner may not be held liable for damages since
his action or inaction, for that matter, was done in the performance of
official duties that are legally protected by the presumption of good faith.
The CA likewise stressed that the civil action filed against the petitioner
had already become moot and academic upon the expiration of his term as
the mayor of Naguilian, La Union.
Despite its incessant declarations on the mootness of the case, the CA
disposed of the appeal in this wise:ςrαlαω
WHEREFORE, the Decision dated 26 May 2009 of the Regional Trial
Court, First Judicial Region, Bauang, La Union, Branch 67, in Special Civil
Action Case No. 72-BG, is hereby REVERSED and SET ASIDE.
SO ORDERED.6ςrνll
The petitioner moved for reconsideration7 questioning the pronouncement
of the CA that Sangguniang Bayan Resolution No. 2007-81 was void and
arguing that a petition for mandamus is not the proper vehicle to determine
the issue on the ownership of the subject land. The motion was denied in
the CA Resolution8 dated September 30, 2011.
The petitioner is now before this Court reiterating the arguments raised in
his motion for reconsideration.
Our Ruling
We agree with the CA that the petition for mandamus has already become
moot and academic owing to the expiration of the period intended to be
covered by the business permit.
An issue or a case becomes moot and academic when it ceases to present a
justiciable controversy so that a determination thereof would be without
practical use and value9 or in the nature of things, cannot be enforced.10 In
such cases, there is no actual substantial relief to which the applicant would
be entitled to and which would be negated by the dismissal of the
petition.11 As a rule, courts decline jurisdiction over such case, or dismiss it
on ground of mootness.12ςrνll
The objective of the petition for mandamus to compel the petitioner to
grant a business permit in favor of respondent corporation for the period
2008 to 2009 has already been superseded by the passage of time and the
expiration of the petitioner s term as mayor. Verily then, the issue as to
whether or not the petitioner, in his capacity as mayor, may be compelled
by a writ of mandamus to release the respondent s business permit ceased to
present a justiciable controversy such that any ruling thereon would serve
no practical value. Should the writ be issued, the petitioner can no longer
abide thereby; also, the effectivity date of the business permit no longer
subsists.
While the CA is not precluded from proceeding to resolve the otherwise
moot appeal of the respondent, we find that the decretal portion of its
decision was erroneously couched.
The CA s conclusions on the issue of ownership over the subject land and
the invalidity of Sangguniang Bayan Resolution No. 2007-81, aside from
being unsubstantiated by convincing evidence, can no longer be practically
utilized in favor of the petitioner. Thus, the overriding and decisive factor
in the final disposition of the appeal was its mootness and the CA should
have dismissed the same along with the petition for mandamus that spawned
it.
More importantly, a mayor cannot be compelled by mandamus to issue a
business permit since the exercise of the same is a delegated police power
hence, discretionary in nature. This was the pronouncement of this Court
in Roble Arrastre, Inc. v. Hon. Villaflor13 where a determination was made
on the nature of the power of a mayor to grant business permits under the
Local Government Code,14 viz:ςrαlαω
Central to the resolution of the case at bar is a reading of Section
444(b)(3)(iv) of the Local Government Code of 1991, which provides,
thus:
SEC. 444. The Chief Executive: Powers, Duties, Functions and
Compensation.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
(b) For efficient, effective and economical governance the purpose of
which is the general welfare of the municipality and its inhabitants pursuant
to Section 16 of this Code, the municipal mayor shall:ςrαlαω
xxx
3) Initiate and maximize the generation of resources and revenues, and
apply the same to the implementation of development plans, program
objectives and priorities as provided for under Section 18 of this Code,
particularly those resources and revenues programmed for agro-industrial
development and country-wide growth and progress, and relative thereto,
shall:ςrαlαω
xxx
(iv) Issue licenses and permits and suspend or revoke the same for any
violation of the conditions upon which said licenses or permits had been
issued, pursuant to law or ordinance.
chanrobles virtual law library
As Section 444(b)(3)(iv) so states, the power of the municipal mayor to
issue licenses is pursuant to Section 16 of the Local Government Code of
1991, which declares:ςrαlαω
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.
Section 16, known as the general welfare clause, encapsulates the delegated
police power to local governments. Local government units exercise police
power through their respective legislative bodies. Evidently, the Local
Government Code of 1991 is unequivocal that the municipal mayor has the
14
power to issue licenses and permits and suspend or revoke the same for
any violation of the conditions upon which said licenses or permits had
been issued, pursuant to law or ordinance. x x x
xxx
Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the
power of the respondent mayor to issue license and permits is
circumscribed, is a manifestation of the delegated police power of a
municipal corporation. Necessarily, the exercise thereof cannot be deemed
ministerial. As to the question of whether the power is validly exercised,
the matter is within the province of a writ of certiorari, but certainly, not
of mandamus .15 (Citations omitted) chanroblesvirtuallawlibrary
Indeed, as correctly ruled by the RTC, the petition for mandamus filed by
the respondent is incompetent to compel the exercise of a mayor s
discretionary duty to issue business permits.
WHEREFORE, premises considered, the Decision dated March 30, 2011
of the Court of Appeals in CA-G.R. SP No. 112152 is hereby SET ASIDE.
The Decision dated May 26, 2009 of the Regional Trial Court of Bauang,
La Union is REINSTATED.
SO ORDERED.
[ G.R. NO. 166744, November 02, 2006 ]
AC ENTERPRISES, INC., PETITIONER, VS. FRABELLE
PROPERTIES CORPORATION, RESPONDENT.
DECISION
CALLEJO, SR., J.:
Before the Court is a petition for review on certiorari of the Decision[1] of
the Court of Appeals (CA) in CA G.R. SP No. 82166, affirming the
Order[2] of the Regional Trial Court (RTC) of Malabon City in Civil Case
No. 3742-MH, which denied the Motion to Dismiss of petitioner AC
Enterprises, Inc. (ACEI), as well as the Resolution of the CA denying the
motion for reconsideration thereof.
Petitioner, a corporation duly organized under domestic laws doing
business in the Philippines, owns the 10-storey Feliza Building located
along Herrera Street, Legaspi Village, Makati City. The building was
subdivided into commercial/office units which were leased to private
persons and entities. There are 36 blowers from 18 air-cooled type
airconditioning units in the building, four blowers on each floor, from the
2nd to the 10th floors. The blowers are aesthetically covered by vertical
concrete type baffles.
Respondent Frabelle Properties Corporation (FPC), formerly FTL & Sons
Development Corporation,[3] is the developer of Frabella I Condominium unbearable hot air is generated and blown towards Frabella I.
(Frabella I), a 29-storey commercial/residential condominium located at
109 Rada Street, Legaspi Village, Makati City. It owned some units in the
condominium which it leased to its tenants. The building is managed by the 8. Apart from the hot air, the blowers also generate a continuous,
Frabella I Condominium Corporation (FCC). deafening, intolerable and irritating, vibrating noise which makes
normal conversation across the street and at the Frabella I
Rada and Herrera streets lie parallel to each other such that Feliza Building is situated difficult if not impossible.
at the back of Frabella I. Feliza Building is at the back of Frabella I and is separated
by Rodriguez Street, a two-lane road approximately 12 meters wide[4] The street is
bounded by the Thailand Embassy on the side of the street of Frabella I. 9. As a consequence of such hot air, vibrating and intolerable noise,
The exhaust of the blowers from the airconditioning units at the Feliza the occupants of Frabella I have been, and still are, prevented
Building were directed towards the rear of Frabella I. from enjoying peaceful and comfortable use of their property
thereby forcing them to vacate and/or transfer elsewhere.
On April 11, 1995, respondent wrote petitioner demanding that the latter
abate the daily continuous, intense and ''unbearable noise" and the hot air
blast coming from the 36 blowers in the Feliza Building. Petitioner rejected 10. Such intolerable noise, hot air, and vibration constitute noise
the demand in a letter dated May 15, 1995. Respondent reiterated its and/or air pollution violative of P.D. 984, the Clean Air Act and
demand for ACEI to abate the nuisance in a letter dated June 6, 1995. other related environmental laws.
On June 29, 1995, respondent requested that the 36 blowers of Feliza
Building be tested by the NCR Environmental Management Bureau (EMB) 11. In all good faith without any desire to cause any unnecessary
of the Department of Environment and Natural Resources (DENR). On inconvenience or trouble, the complainant, for the last several
August 11, 1995, it received a report from the EMB that the noise years, has written and made numerous contacts with the
generated by the blowers of Feliza Building is beyond the legal allowable respondent complaining about this pollution, even soliciting the
level under Section 78(b) of Presidential Decree (P.D.) No. 984, as help and intercession of the Makati Commercial Estate
amended. FPC had the blowers tested anew by the EMB on December 8, Association, Inc. (MACEA) and the Metro Manila Development
1995 and July 1, 1996 with the same results. Despite repeated demands,
Authority (MMDA) to try to settle the matter amicably.
petitioner refused to act on the matter.
On August 14, 2000, respondent again wrote petitioner, demanding that it 12. On the other hand, the DENR, over a span of several years, has
abate the nuisance. Petitioner ignored the letter anew. Respondent then
conducted several tests. As shown by the results, the noise and
had the blowers tested again by the EMB with same results as evidenced by vibration generated by the Feliza Building blowers exceeds the
its report dated August 29, 2000 and November 4, 2000. DENR and Local Government ambient noise standards hence, it
undoubtedly constitutes pollution.[5]
On March 11, 2001, Frabelle I Condominum Corporation, through
counsel, Ang & Associates, as complainant, filed a complaint against
The complainant prayed that judgment be rendered in its favor, thus:
petitioner with the Pollution Adjudication Board (PAB) for the abatement
of noise and/or air pollution and damages with a plea for injunctive relief.
WHEREFORE, it is respectfully prayed that after notice and hearing, a
The complainant alleged therein that it managed the Frabella 1 and that its
Decision be rendered in favor of complainant and against the respondent:
members own units in the condominium. It alleged, inter alia, that:
1. Declaring the intolerable noise, hot air and vibration generated by
6. Feliza Building's airconditioning system is served by some 36
the Feliza Building blowers as a noise and/or air pollution and
blowers, installed 4 blowers to each floor, all located on the same
ordering the respondent to abate the same and in case of failure
sidedirectly facing Frabella I.
to do so, that the establishment be closed or ordered to cease
operations.
7. Everytime the Feliza Building's airconditioning system is turned
on, all or a good number of the 36 blowers operate at the same
2. After arbitration, ordering the respondent to indemnify the
time. As a direct result of the operation of the blowers,
complaint for actual damages at not less thanP5,000,000.00 and to
15
 reimburse it for attorney's fees and expenses of litigation at not
less than P400,000.00.
3. Condemning the respondent to pay the corresponding fines and
other administrative penalties for each day of continuing
pollution.
Complainant prays for other relief just and equitable in the premises. [6]
While the case was pending, respondent, through its Vice-President, wrote
Dr. Maria Leonor B. Soledad, City Health Officer of Makati City,
requesting her intervention to order petitioner to abate the noise and hot
air coming from the blowers of the Feliza Building. On March 5, 2002, Dr.
Soledad replied that a panel must be formed to settle the matter.
In a letter dated March 7, 2002, respondent requested Makati City Mayor
Jejomar C. Binay not to renew or to cancel the Mayor's License and
Business Permits of Feliza Building and to compel petitioner to comply
with the law.[7] Copies of the letter were forwarded to Engr. Nelson B.
Morales, the City Building Official, and Atty. Enrico Lainez, City Attorney.
Engr. Morales acted on the letter and wrote the EMB on April 30, 2002,
requesting the investigation of the complaint relative to the noise from the
airconditioning units of the Feliza Building.[8] A panel from the EMB
conducted tests on the 36 blowers of Feliza Building from 10:30 a.m. to
12:50 p.m. on May 24, 2002. On June 28, 2002, the Panel submitted its
Investigation Report, stating that the passing of vehicles along the street
and the blowers of nearby building contributed to the ambient noise quality
in the area. The report stated that since DENR Administrative Order No.
30 devolved the functions of the DENR on the abatement of noise
nuisance to the Local Government Unit, the case should be endorsed to
the City Government of Makati for appropriate action.[9]
Regional Director Sixto E. Tolentino, Jr. of the EMB forwarded the report
to Engr. Morales on July 2, 2002.[10] In a letter dated July 19, 2002, Engr.
Morales informed respondent that based on the result of investigation
conducted by the DENR Management Bureau on Sound Pressure Levels
(SPL) measured on the different sampling stations, the excess in the noise
quality standard within the vicinity does not come from the airconditioning
system with 36 blowers of Feliza Building alone; there were other
prevailing factors to consider," which is beyond the control of said
building and since the final result has been rendered and resolved by the
concerned government agency, it is properly advised that further inquiry or
anything involving a sound environment process which is not sanctioned
by this office, be addressed directly to the said agency. "[11]
Copies of the letter were furnished to the City Mayor, the City Attorney
and petitioner. Respondent then wrote Engr. Morales seeking clarification,
wanting to find out why the matter should be referred to the EMB when
the latter had already endorsed the matter to the City of Makati. A
conference was held between the executives of respondent and Engr.
Morales. The latter insisted on the report of the EMB and his July 19, 2002
letter and dared it to go to court if it was not satisfied with the report and
his resolution of the matter.
Respondent then wrote another letter to the EMB relative to the May 24,
2002 Report of the Panel. The EMB conducted SPL measurements anew
on February 4, 2003. Per its Report submitted on November 24, 2003, the
EMB declared that, from the table, it is evident that the SPL measurements
were high when the doors were opened compared to the readings when the
doors were closed. However, the EMB emphasized that the standards in
Section 78 (b) of the Implementing Rules and Regulations of P.D. No. 984
could not be applied since the provisions were for ambient noise. It
pointed out that the SPL measurements were taken inside the building. The
EMB opined that since the nature of complaint is regarding noise nuisance
generated from the firm's blowers, the SPL measurements were not the
critical factor in the resolution of the issue. It stated that the noise needs
not to be high or low to annoy or cause nuisance to the receptor, for as
long as the complainant is disturbed with the level of sound coming from
the firm, it was considered a nuisance.[12]
On July 1, 2003, respondent filed a complaint for the abatement of
nuisance with damages with prayer for the issuance of a writ of preliminary
and permanent injunction before the RTC of Malabon City against
petitioner. The complaint alleged the following:
6. The Feliza Building's airconditioning units are served by some 36
blowers, 4 blowers to each floor located outside the windows of
the building facing directly towards the Frabella I Condominium.
The 36 blowers were installed from the 2nd floor to the 10th
floor of the building and these blowers are aesthetically covered
by a vertical concrete sun baffles.
7. [Every time] the Feliza Building's airconditioning system is turned
on, all or a good number of the 36 blowers are made to operate
simultaneously. The operation of the Feliza's blowers generates a
continuous deafening unbearable vibrating and stressful noise
affecting the tenants of the Frabella I Condominium. Hot air is
also blasted from the [Feliza] Building's blowers to the direction
of the Frabella 1Condominium.
8. The tenants occupying the 5th to the 16th floors of the Frabella I
Condominium facing Feliza Building are directly subjected to a
daily continuous intense noise and hot air blast coming from the
blowers of the[10-storey] Feliza Building. Some are tenants of
plaintiff, who have complained to plaintiff about the matter.
Tenants who could not bear the nuisance any longer have vacated
their units, and as a result, many units of plaintiff have remained
vacant, and unoccupied or uninhabitable, thereby depriving
plaintiff with rental income that it should have otherwise be
receiving.
9. In all good faith, without any desire to cause any unnecessary
inconvenience or trouble, plaintiff has written and made
numerous contacts with defendant to complain about this
nuisance, even soliciting the help and intercession of the Barangay
San Lorenzo, Makati Commercial Estate Association, Inc.
(MACEA), Metro Manila Development Authority (MMDA),
Makati City Government, Makati Pollution Office and
Department of Environment and Natural Resources(DENR), to
try to settle the matter amicably. Several meetings have taken
place, as well as many correspondences made by plaintiff to
defendant. But reasonable and lawful demands by plaintiff to
abate the nuisance have been repeatedly ignored/refused by
defendant. The demand letters, and the response of defendant to
these letters, are herein attached and made integral part of this
Complaint as follows:
Date
Remarks
Annex
11 April 1995
Demand letter to abate nuisance
"A"
15 May 1995
Response to demand letter
"B"
06 June 1995
Follow-up demand letter
"C"
14 August 2000
Follow-up demand letter
"D"
10.
11. There [are] more letters that were exchanged between plaintiff
and defendant and/or their lawyers, but they will not be attached
to this Complaint at this time to simplify the facts.
12. Even the Metro Manila Development Authority (MMDA) and
Makati Commercial Estate Association, Inc. (MACEA) wrote
defendant letters urging it to rectify and abate the nuisance.
Copies of the letters of the MMDA dated 29 April 1996 and the
16
 MACEA dated 10 October 1996 are herein attached and marked may, defendant did not perform any remedial or rectification Petitioner moved for the dismissal of the complaint on the following
as Annexes - "E" and "F"[,] respectively. works to lower the noise being generated by the blowers, hence[,| grounds: (1) lack of jurisdiction of the court over the subject matter of the
it was not responsible for any imagined or actual reduction in the complaint; (2) the complaint does not state a cause of action; and (3) the
decibel readings. action is barred by res judicata, litis pendentia, and forum shopping.[15]
13. On the other hand, the DENR, over a span of 7 years, has
conducted several noise sampling tests. As shown by the results, Petitioner averred that it was the Makati City Government that had
the unbearable noise generated by the Feliza's blowers is beyond 18. As a consequence of such unbearable, hot air and stressful noise, jurisdiction over the complaint pursuant to Republic Act (R.A.) No. 7160.
the legally allowable level under Sec. 78(b) of P.D. 984, as the occupants of the Frabella I, including the tenants of plaintiff, It also pointed out that DENR Administrative Order (A.O.) No. 30 issued
indicated in their reports, hence[,] it undoubtedly constitutes have been and still are, prevented from enjoying peaceful and on June 30, 1992 devolved to the local government units the power to
nuisance. Copies of the test results are herein attached and made comfortable use of their property thereby forcing them to vacate determine matters pertaining to environmental management such as: (a)
an integral part of this Complaint as follows: and or to transfer elsewhere. enforcement of pollution control and environmental protection laws, rules
and regulations; (b) abatement of noise and other forms of nuisance; and
(c) implementation of cease and desist orders issued by the PAB. It
Date Annex 19. Notwithstanding the foregoing results, repeated maintained that respondent had filed a similar action before the Makati
requests/demands from the plaintiff and recommendations of the City Government concerning the same issues presented in the complaint
29 June 1995 "G" DENR, MACEA and MMDA to abate the pollution and and that the City Building Official, Engr. Morales, had ruled in his letter
nuisance, the defendant has ignored and still continues to ignore dated July 19, 2002 that the excess in the noise quality standard within the
11 August 1995 "H" such requests/demands/ recommendation.[13] vicinity was caused not only by the air-conditioning system of Feliza
Building but also by other prevailing factors which were beyond its control.
08 December 1995 "I" Respondent prayed for injunction and the following other reliefs, thus: Respondent had failed to appeal the resolution; hence, the resolution of the
City Building Official barred the complaint.
01 July 1996 "J" WHEREFORE, premises considered, it is respectfully prayed that upon
the filing of this Complaint, after notice and hearing, and after the payment Petitioner further averred that, aside from the action brought before the
of a bond in an amount to be fixed by the Honorable Court, a Writ of City Government, the Frabella Condominium Corporation (FCC) filed a
04 November 1996 "K"
Preliminary Injunction be issued enjoining defendant from operating the case for Abatement of Noise and/or Air Pollution and Damages with
airconditioning system of the Feliza Building and/or turning on the Prayer for Interim Cease and Desist Order, docketed as PAB Case No. 01-
29 August 2000 "L"
blowers subject matter of this suit while the instant case remains pending. 0009-NCR. As gleaned from the material averments of the two complaints,
both involved the same set of facts and issues. Consequently, the petition is
14. barred by litis pendentia, and respondent was guilty of violating Section 5,
After trial and hearing, judgment be rendered against the defendant and for
the plaintiff, ordering the former: Rule 7 of the Rules of Court for failure to include in its certification against
15. Please note that the testing done on 08 December 1995 (Annex - forum-shopping of the pendency of the PAB case or the prior resolution
"I") was even requested by defendant. by the City Government of the complaint before the City Building
1. To abate the noise and air pollution being generated by all the
blowers of the airconditioning system of Feliza Building, and/or Official/City Engineer.
16. On 04 February 2003, another test by the DENR was conducted, to make the Writ of Preliminary Injunction permanent;
Petitioner further claimed that the complaint stated no cause of action
and a copy of the results are herein attached and marked as because it failed to allege any right of respondent which it was obliged to
Annex -"M." Although the latest test would seem to indicate that respect, and any act or omission of defendant in violation of such right. As
there was a reduction in the decibel readings as compared with 2. To pay plaintiff the amount of P1,000,000.00 in temperate or
moderate damages[;] gleaned from the EMB's report to the City Engineer on May 24, 2002, the
the previous tests, this is actually misleading. For one, 28 blowers passing of vehicles along the street and blowers in the nearby building
were operational at the time of the testing, as opposed to the contributed to the ambient noise quality in the area.[16]
previous testing done when all 36 blowers were functioning. This
is rather exceptional because ordinarily, all 36 blowers of the 3. To pay the plaintiff the amount of P1,000,000.00 as and by way of
In compliance with the order of the court, the parties submitted their
Feliza Building are in operation. The fact that only 28 blowers exemplary damages;
respective Position Papers. Respondent averred that the provisions of R.A.
were operational at the time of the testing resulted in the lower No. 7160 cited by petitioner apply not to abatements of nuisance but to
decibel reading. pollution control cases.[17] The local government units (LGUs) are only
4. To pay the plaintiff the amount of P500,000.00 as and by way of
granted administrative and executive powers, not judicial or quasi-judicial
attorney's fees; and
functions to abate a nuisance. While admitting that DENR A.O. No. 30
17. Plaintiff will also demonstrate by expert testimony during the devolved to the LGUs the function of abating noise and other forms of
course of the trial that there were lapses committed during the nuisance as defined by law, plaintiff posited that said A.O. is not a law and
latest testing that materially influenced the results. But be that as it 5. [To pay] the cost of the suit.[14] the DENR cannot deprive the court of its jurisdiction over the abatement
17
of nuisance.
Respondent alleged that in filing a motion to dismiss, petitioner
hypothetically admitted the factual allegations in the complaint and, thus,
only questions of law remained; hence, the doctrine of primary jurisdiction
and the need for exhaustion of administrative remedies do not apply.
Moreover, petitioner itself had even admitted that respondent had tried to
seek administrative relief before the Makati City Government, but the City
Building Official denied the same. It insisted that to require the further
exhaust of administrative remedies beyond what it had tried in the past
years would be an injustice. It claimed that the proper application of P.D.
No. 984 was in issue, specifically Section 78(b) of the Rules and
Regulations of the National Pollution Control Commission (NPCC) which
were adopted and promulgated pursuant to Section 6 of P.D. No. 984 and
Title VIII of the Civil Code. Respondent maintained that Engr. Morales'
letter to it could not be considered as final as to constitute res
judicata between the parties. It was only a reply-letter. Besides, the City
Engineer/Building Official could not exercise quasi-judicial functions. Due
process was not also observed because no proceedings were conducted. It
insisted that it wrote follow-up letters to know the basis of his findings and
to confirm the fact that the Makati City Government did not issue a permit
to operate its airconditioning unit. However, Engr. Morales refused to
acknowledge the same and did not reply thereto.
Respondent asserted that it did not engage in forum shopping as the
complainant in the PAB case was FCC, a corporation of unit owners of
Frabella I. ft is a totally different corporate entity, the stockholders and
officers of which are not similar to FPC. On petitioner's claim that there
was no cause of action for the abatement of nuisance, it declared that the
material allegations of its complaint and the answer thereto show
otherwise. Petitioner had the obligation to abate the nuisance caused by the
blowers of Feliza Building. Although under the DENR Report on May 24,
2002, the DENR conducted noise sampling, and noted that the passing
vehicles along the street and blowers of nearby building contributed to the
noise, the basis of its complaint was the noise generated by the blowers of
Feliza Building.
Before the RTC court could resolve the motion to dismiss of petitioner,
the PAB resolved, on July 29, 2003[18] to dismiss the complaint filed by
Frabelle. The matter was then endorsed to the LGU concerned in
accordance with Section IV, Rule III of PAB Resolution 1-C, Series of
1997, as amended. It noted that based on the pleadings of the parties, and
the testimonial evidence, the case is more of a nuisance, and "[e]xcept where
such would constitute a pollution case, local government units shall have the power to
abate nuisance within their respective areas pursuant to the Republic Act No. 386
(Civil Code of the Philippines), Republic Act 7160 (the Local Government Code),
Presidential Decree 856 (the Code of Sanitation of the Philippines), DENR
Department Administrative Order No. 30, Series of 1992 and other pertinent laws,
rules and regulations" without prejudice to the institution of a pollution case,
upon proof that respondent had failed to comply with DENR standards
and the presentation of other evidence that would warrant the PAB to take
cognizance of and assert jurisdiction over the case.[19]
Thereafter, the RTC denied petitioner's motion to dismiss in an
Order[20] dated September 15, 2003. It ruled that the doctrine of primary
jurisdiction simply calls for the determination of administrative questions,
which are ordinarily questions of facts and not of law. Likewise, the trial
court is not divested of its jurisdiction simply because of plaintiff's failure
to observe the doctrine of exhaustion of administrative remedies.
Moreover, as gleaned from the averments of the complaint, there was an
urgency of abating the noise and air pollution generated by the blowers of
petitioner's airconditioning system such that respondent prayed for
injunctive relief. The RTC took note of the allegations of respondent that it
would suffer great and irreparable injury; hence, to require it to exhaust
further administrative remedies would be, in effect, a nullification of its
claim.
According to the RTC, the doctrine of res judicata applies only to judicial
and quasi-judicial proceedings and not to the exercise of administrative
powers. Thus, no forum shopping was also committed. Since the findings
of the City Building Official appear to be a complete disavowal of the
previous results gathered from the numerous tests conducted by the EMB,
the court could not be deprived of its inherent power to review the factual
findings of the administrative official in order to determine the regularity of
the procedure used.
On the merits of the complaint, the RTC declared that the factual
allegations were sufficient in themselves to constitute a cause of action
against respondent and, if admitting the facts, the court can render valid
judgment on the basis thereof in accordance with the relief prayed for:
Undeniably, the instant complaint is one for abatement of nuisance.
Plaintiff alleges that the operation of defendant's blowers generates a
continuous, deafening, unbearable, vibrating and stressful noise affecting
its tenants. Some have already vacated their units while others refused to
pay rents and threaten plaintiff to be sued because of the unabated
nuisance. Plaintiff has been deprived of rental income. It had written and
made numerous contacts with the defendant to complain about the
nuisance and further solicited intervention from government agencies
including the Government of Makati City. Defendant allegedly failed or
refused to abate the nuisance which is in total disregard of the right of the
plaintiff over its property. Contested findings of the EMB and City
Building Official of Makati City are, likewise, put in issue. These are
sufficient to constitute a cause of action against the defendant and, if
admitting the facts, this Court can render valid judgment upon the same in
accordance with the relief prayed for.[21]
The court denied the motion for reconsideration filed by petitioner [22] and
the latter sought: relief from the CA via a petition for certiorari. Petitioner
averred that:
THE PUBLIC RESPONDENT ACTED WITHOUT JURISDICTION,
OR WITH GRAVE ABUSE OF DISCRETION SO GRAVE AS TO
LOSE JURISDICTION IN ASSUMING AND EXERCISING ITS
JURISDICTION IN CIVIL CASE NO. 03-3745-MN, CONSIDERING
THAT:
A. THE HONORABLE COURT HAS NO JURISDICTION
OVER THE SUBJECT MATTER OF THE COMPLAINT.
JURISDICTION IS VESTED WITH THE MAKATI CITY
GOVERNMENT, THE LOCAL GOVERNMENT UNIT
CONCERNED.
B. THE COMPLAINT IS BARRED BY RES JUDICATA. THE
MAKATI CITY GOVERNMENT HAS ALREADY
DECIDED A COMPLAINT FILED BY FRABELLE.
FRABELLE DID NOT ELEVATE THE SAME ON APPEAL,
OR, IN ANY WAY, QUESTION SUCH DECISION. THUS,
THE DECISION BY THE MAKATI CITY GOVERNMENT
IS NOW FINAL AND EXECUTORY.
C. AT THE TIME THE COMPLAINT WAS FILED, IT WAS
BARRED BY LITIS PENDENTIA. A SIMILAR ACTION
WAS PENDING WITH THE POLLUTION
ADJUDICATION BOARD (PAB) WHICH,
SUBSEQUENTLY, FOUND NO LIABILITY ON THE PART
OF AC. FRABELLE IS CLEARLY AND UNDENIABLY
GUILTY OF FORUM-SHOPPING.
D. PLAINTIFF FRABELLE HAS NO CAUSE OF ACTION
AND THE COMPLAINT FAILS TO STATE A CAUSE OF
ACTION AGAINST AC ENTERPRISES.[23]
Petitioner asserted that, by express provision of law, the City of Makati has
primary jurisdiction over the complaint and is the competent authority to
determine the existence of any incidence of pollution, the special standards
and regulations controlling the same and the resolution whether a party has
complied with the regulations. The complaint does not fall under any of
the exceptions to the rule on exhaustion of administrative remedies.
Respondent is guilty of short-circuiting the whole process without requisite
justification. Contrary to the contention of respondent, the proceedings
before the City Government are quasi-judicial in nature. It pointed out that
the City Government had already made its findings, which respondent did
not contest in the proper tribunal within the reglementary period. It did not
appeal the decision of the City Building Official conformably with DENR
Administrative Order No. 37-45 (General Manual of Operations for
Devolved Functions from the Department of Environment and Natural
Resources to the Local Government Units); hence, the resolution became
final and executory. It insisted that the complaint is but a desperate attempt
to revive what is otherwise a dead issue.
On September 21, 2004, the CA rendered judgment denying the
petition.[24] The fallo of the decision reads:
18
WHEREFORE, premises considered, the petition is DISMISSED for lack
of merit. Accordingly, the dismissal of the petition rendered the application
for a temporary restraining order or writ of preliminary injunction moot
and academic.
SO ORDERED.[25]
The CA ruled that the action of respondent was one for the abatement of a
nuisance within the exclusive jurisdiction of the RTC. It agreed with
respondents' contention that, under R.A. No. 7160, the LGUs are not
divested of its jurisdiction over an action for the abatement of a nuisance.
Section 17, sub-paragraphs (b)(3)(iii) in relation to (b)(4) of the law pertain
to the enforcement of pollution control law and not to the abatement of
nuisance. While DENR A.O. No. 30 devolved to the LGUs the abatement
of noise and other forms of nuisance as defined by law, this does not
necessarily deprive the courts to hear and decide actions pertaining
thereon. It was thus proper for respondent to bring the case before the
court since it had already sought the intercession of Barangay San Lorenzo,
Makati Commercial Estate Corporation (MACEA), DENR, and the Makati
City Government to no avail.
Further, the doctrine of primary jurisdiction and the principle of
exhaustion of administrative remedies need not be adhered to when the
question between the parties is purely legal. In this case, petitioner, in filing
a motion to dismiss, is deemed to have hypothetically admitted all the
factual averments of respondent. Hence, what is left for the court to
adjudicate is only the application of laws dealing with nuisance. The CA
also declared that the filing of the case below was not barred by res
judicata for the reason that the decision adverted to by petitioner was only a
letter of the City Building Official to respondent; no adversarial
proceedings or submission of evidence and position papers took place
before said office. At best, the letter is only an exercise of the City
Government's administrative powers, not judicial or quasi-judicial
functions which the City Building Official does not possess. Respondent's
filing of the complaint before the Malabon RTC is also not barred by litis
pendentia. FCC, as complainant, initiated the action before the PAB, while
the respondent filed the pending case before the court; there is no identity
of parties since FCC has a personality separate and distinct from that of
respondent.
Finally, the CA held that all the requisites for the existence of a cause of
action were present in the case at bar. Due to the unbearable noise and hot
air allegedly produced by the blowers installed at petitioner's building,
tenants of respondent have been complaining, forcing them to vacate their
units while others refused to pay their rent and threatened to take legal
action. Respondent had the right to abate such nuisance in order to avert
future business losses. Since petitioner refused to heed its demands,
respondent was well within its right to file a case protecting its property
and proprietary rights.
On January 18, 2005, the appellate court resolved to deny petitioner's
motion for reconsideration[26] for lack of merit.[27]
Petitioner forthwith filed the instant petition for review on certiorari,
praying for the reversal of the CA decision and resolution on the following
grounds:
I.
THE COURT OF APPEALS ERRONEOUSLY RULED THAT THE
LOWER COURT HAS JURISDICTION OVER THE INSTANT CASE,
CONSIDERING THAT THE EXCLUSIVE AUTHORITY TO
DETERMINE THE ISSUES INVOLVED IN THE CASE A QUO LIES
WITH THE CITY OF MAKATI.
A.
THE COURT OF APPEALS ERRED IN NOT RULING THAT THE
POWER TO ABATE NUISANCES AND CONTROL NOISE
POLLUTION HAS BEEN DEVOLVED TO THE LOCAL
GOVERNMENT UNIT CONCERNED IN ACCORDANCE WITH
REPUBLIC ACT 7160 OTHERWISE KNOWN AS THE LOCAL
GOVERNMENT CODE.
II.
THE COURT OF APPEALS ERRED IN NOT HOLDING THAT
THE ISSUES INVOLVED IN THE INSTANT CASE NECESSARILY
INVOLVE A QUESTION OF FACT, AND, THEREFORE, THE
DOCTRINE OF PRIMARY JURISDICTION AND THE DOCTRINE
OF EXHAUSTION OF ADMINISTRATIVE REMEDIES ARE BOTH
APPLICABLE.
III.
THE COURT OF APPEALS ERRONEOUSLY RULED THAT THE
COMPLAINT IS NOT BARRED BY (1) LITIS PENDENTIA; (2) RES
JUDICATA; AND (3) FORUM-SHOPPING.
IV.
THE COURT OF APPEALS ERRED IN RULING THAT
RESPONDENT'S COMPLAINT STATES A CAUSE OF ACTION.[28]
Petitioner insists that, under Section 17(b)(4) in relation to Section
17(b)(3)(III) of R.A. No. 7160, the City of Makati is obliged to enforce the
Pollution Control Law, and under Section 458(4)(I) of the said law,
the Sanggnniang Panghmgsod is empowered to declare, prevent or abate any
nuisance. Thus, the City of Makati has exclusive jurisdiction over
respondent's complaint for the abatement of the noise from the blowers of
the airconditioning unit of the Feliza Building and of the hot air generated
by the said blowers. Petitioner avers that the issues before the trial court
were factual in nature. By its motion to dismiss the complaint, it did not
hypothetically admit the allegations of respondent in its complaint that the
noise and hot air emitted by the blowers of the Feliza Building constitute a
nuisance or air pollution because the allegations are mere conclusions of
law and not mere statements of facts. Respondent's complaint before the
trial court and its several complaints against petitioner before quasi-judicial
bodies is an implied admission of the availability of administrative remedies
under the law. Since respondent failed to pursue and exhaust all
administrative remedies before filing its complaint below, its action was
premature. While there were exceptions to the requirement of exhaustion
of administrative remedies, nevertheless, respondent failed to establish any
of them. Moreover, respondent's action before the RTC was barred by the
letter of the City Engineer's Office of Makati City on July 19, 2002 which
ruled that there was no factual basis for respondent's complaint; hence,
respondent's complaint was barred by res judicata. The complainant in PAB
Case No. 01-0009-NCR involved the same set of issues and circumstances,
and the complainant therein and respondent represented the same
interests, alleged the same rights and prayed for the same reliefs.
Consequently, the RTC erred in denying its motion to dismiss the
complaint on the ground of res judicata, litis pendentia and forum shopping.
Finally, respondent had no cause of action against petitioner because, as
shown by the tests conducted by the EMB on May 24, 2002, based on
noise sampling tests, the noise and air pollution did not emanate from
Feliza Building but from passing cars.
In its comment on the petition, respondent maintained that the assailed
orders of the RTC and decision of the CA are in accord with law and the
rulings of this Court. Respondent maintains that the only issue before the
trial court was how to apply P.D. No. 984 and Section 78(b) and the Rules
and Regulations of the NPCC and the provisions of the New Civil Code
governing the abatement of nuisance. By filing a motion to dismiss the
complaint on the ground that it stated no cause of action, the petitioner
thereby hypothetically admitted the factual allegations therein. The court
must hear the case to be able to finally resolve the factual issues that may
be raised in the Answer of the petitioner after the denial of its motion to
dismiss.
Respondent avers that it was not obliged to first exhaust all administrative
remedies. It pointed out that the Building Official of Makati City ignored
its right to due process when he dismissed its complaint without
conducting an investigation based solely on the July 2, 2002 Report of the
EMB Panel. The issues between the parties are legal, that is, whether there
is irreparable injury. It likewise points out that to require exhaustion of
administrative remedies would be unreasonable as the rule does not
provide a plain, speedy and adequate remedy. It insists that it could not
have appealed the letters of the City Mayor and the Building Official of
Makati because there are no rules promulgated by the City governing
appeals from said letters. It points out that the City Engineer and City
Mayor did not grant its letter requesting for a clarification of petitioner's
letters denying its letter-complaint.
The petition is denied for lack of merit.
The Order of the RTC dated September 15, 2003 denying the motion to
dismiss of petitioner (as defendant below) is interlocutory in nature. The
general rule is that an order denying a motion to dismiss a complaint
cannot be questioned via a special civil action for certiorari until a final
19
judgment on the merits of the case is rendered. A party must exhaust all
remedies available before resorting to certiorari. A writ for certiorari is not
intended to correct every controversial interlocutory ruling. It is resorted
only to correct a grave abuse of discretion or a whimsical exercise of
judgment equivalent to lack of jurisdiction. It is a remedy narrow in scope,
limited only to keeping an inferior court within its jurisdiction and to
relieve persons from arbitrary acts which courts have no power or
authority to perform.[29] The remedy of petitioner was to go to trial and
appeal from an adverse decision.
Moreover, the CA correctly ruled that the RTC did not commit grave
abuse of its discretion in denying the motion to dismiss filed by
respondent. Indeed, the assailed orders of the RTC are in accord with the
law and rulings of this Court, taking into account the averments of the
complaint and the answer appended thereto and the other pleadings of the
parties.
The RTC Has Jurisdiction
Over the Action of the
Respondent for Abatement
Of Nuisance
It is axiomatic that the nature of an action and whether the tribunal has
exclusive jurisdiction over such action are to be determined from the
material allegations of the complaint, the law in force at the time the
complaint is filed, and the character of the relief sought irrespective of
whether plaintiff is entitled to all or some of the claims averred. Jurisdiction
is not affected by the pleas or the theories set up by defendant in an answer
to the complaint or a motion to dismiss the same. Otherwise, jurisdiction
would be dependent almost entirely upon the whims of defendants. [30]
We agree with the ruling of the RTC, as affirmed by the CA, that as
gleaned from the material averments of the complaint as well as the
character of the relief prayed for by respondent in its complaint before the
RTC, the petition is one for the judicial abatement of a private nuisance,
more specifically the noise generated by the blowers of the airconditioning
system of the Feliza Building owned by petitioner, with a plea for a writ of
preliminary and permanent injunction, plus damages. Such action of
respondent is incapable of pecuniary estimation because the basic issue is
something other than the right to recover a sum of money. Although
respondent prayed for judgment for temperate or moderate damages and
exemplary damages, such claims are merely incidental to or as a
consequence of, the principal relief sought by respondent. An action
incapable of pecuniary estimation is within the exclusive jurisdiction of the
RTC as provided in Batas Pambansa Bilang (B.P. Blg.) 129, as amended by
R.A. No. 7691.[31] In Tatel v. Municipality of Virac,[32] the Court ruled that a
simple suit for abatement of a nuisance is within the exclusive jurisdiction
of the Court of First Instance, now the RTC.
Article 694 of the New Civil Code defines a nuisance as follows:
Art. 694. A nuisance is any act., omission, establishment, business,
condition of property, or anything else which:
\(1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any public highway or
street, or any body of water; or
(5) Hinders or impairs the use of property.
The term "nuisance" is so comprehensive that it has been applied to almost
all ways which have interfered with the rights of the citizens, either in
person, property, the enjoyment of his property, or his
comfort.[33] According to Article 695 of the Civil Code, a nuisance may be
either public or private:
Art. 695. Nuisance is either public or private. A public nuisance affects a
community or neighborhood or any considerable number of persons,
although the extent of the annoyance, danger or damage upon individuals
may be unequal. A private nuisance is one that is not included in the
foregoing definition.
A private nuisance has been defined as one which violates only private
rights and produces damages to but one or a few persons. [34] A nuisance is
public when it interferes with the exercise of public right by directly
encroaching on public property or by causing a common injury. [35] It is an
unreasonable interference with the right common to the general public. [36]
Under Article 705 of the New Civil Code, a party aggrieved by a private
nuisance has two alternative remedies: (1) a civil action; or (2) abatement,
without judicial proceedings. A person injured by a private nuisance may
abate it as provided in Article 706:
Art. 706. Any person injured by a private nuisance may abate it by
removing, or if necessary by destroying the thing which constitutes the
nuisance, without committing a breach of the peace or doing unnecessary
injury. However, it is indispensable that the procedure for extrajudicial
abatement of a public nuisance by a private person be followed.
A private nuisance action is the remedy for an invasion of a property right.
On the other hand, the action for the abatement of a public nuisance
should be commenced by the city or municipality.[37] A private person may
institute an action for the abatement of a public nuisance in cases wherein
he suffered a special injury of a direct and substantial character other than
that-which the general public shares.[38] The district health officer shall
determine whether or not abatement, without judicial proceedings, is the
best remedy against a public nuisance.[39]
In the present case, respondent opted to file an action in the RTC for
abatement of the private nuisance complained of and damages under
Article 697 of the New Civil Code for its past existence.
One has an action to recover personal damages arising from a private
nuisance. The gist of the action is the unreasonable interference by the
defendant with the use and enjoyment of properties. Indeed, petitioner
may be compelled to adopt the necessary measures to reduce or deaden the
nuisance emanating from the blowers of the airconditioning system at the
Feliza Building.
The PAB has no primary jurisdiction over the noise complained of by ihe
respondent. The resolution of the issue before the RTC, which is whether
the noise complained of is actionable nuisance, does not require any special
technical knowledge, expertise and experience of the PAB or even of
Makati City requiring the determination of technical and intricate matters
of fact. Indeed, the PAB dismissed the complaint of the Frabelle I
Condominium Corporation declaring that, based on the pleadings before it
and the evidence of the parties, the case is more of an abatement of a
nuisance under the New Civil Code and DENR Order No. 30, Series of
1992. It declared that it was not a pollution case. The Resolution reads:
After considering the evidence adduced and the arguments of both parties
in their pleadings, the Board, likewise giving due importance to the
technical findings giving rise to the conclusion that the nature of the case is
more of a nuisance, hereby resolves to DISMISS the pending complaint of
pollution in accordance with Rule III, Section IV of PAB Resolution 1-C,
Series of 1997 as amended, which categorically states that "Except where such
would constitute a pollution case, local government units shall have the power to abate a
nuisance within their respective areas pursuant to the Republic Act No. 386 (Civil
Code of the Philippines), Republic Act 7160 (the Local Government Code),
Presidential Decree 856 (the Code on Sanitation of the Philippines), DENR
Department Administrative Order No. 30, Series of 1992 and other pertinent laws,
rules and regulations. " (underscoring supplied)
Accordingly, the issues raised by the complainant are hereby endorsed to
the Local Government Unit concerned for appropriate action consistent
with above cited laws, and without prejudice to the institution of a
pollution case upon definite findings that herein respondent had failed to
comply with the DENR Standards, and presentation of other evidence that
would warrant the Board to take cognizance of the matter as a pollution
case.[40]
The power of the NPCC to resolve pollution cases under Section 6,
paragraphs (e), (f), (g), (j), (k) and (p) of P.D. No. 984 is vested in the
Pollution Adjudication Board (PAB) under Title XIV, Chapter 2, Section
13 of the 1987 Administrative Code, which reads:
SEC. 13. Pollution Adjudication Board. - The Pollution Adjudication Board,
under the Office of the Secretary, shall be composed of the Secretary as
Chairman, two Undersecretaries as may be designated by the Secretary, the
Director of Environmental Management, and three others to be designated
by the Secretary as members. The Board shall assume the powers and functions of
20
the Commission Commissioners of the National Pollution Control Commission with discharge thereto of any liquid, gaseous or solid wastes as will or is likely to
respect to the adjudication of pollution cases under Republic Act 3931 and Presidential create or to render such water, air and land resources harmful, detrimental A 55 " 50 " 45 "
Decree 984, particularly with respect to Section 6 letters (e), (f), (g), (j), (k) and (p) of or injuries to public health, safety or welfare or which will adversely affect
P.D. 984. The Environment Management Bureau shall serve as the Secretariat of the their utilization for domestic, commercial, industrial, agricultural, B 65 " 60 " 55 "
Board. These powers and functions may be delegated to the regional officers of the recreational or other legitimate purposes.
Department in accordance with the rules and regulations to be promulgated by the Board. C 70 " 65 " 60 "
We agree with petitioner's contention that, under Section 447(a)(3)(i) of
The cases referred to in Section 6 of P.D. No. 984 are as follows: R.A. No. 7160, otherwise known as the Local Government Code, D 75 " 70 " 65 "
the Sangguniang Panglungsod is empowered to enact ordinances declaring,
(e) Issue orders or decisions to compel compliance with the provisions of preventing or abating noise and other forms of nuisance. It bears stressing,
this Decree and its implementing rules and regulations only after proper however, that the Sangguniang Bayan cannot declare a particular thing as a Class ''A" area refers to that section or contiguous area which is primarily
notice and hearing. nuisance per se and order its condemnation. It does not have the power to used for residential purposes, while Class "B" refers to that section or
find, as a fact, that a particular thing is a nuisance when such thing is not a contiguous area which is primarily a commercial area. Frabelle I and Feliza
(f) Make, alter or modify orders requiring the discontinuance of pollution nuisance per se; nor can it authorize the extrajudicial condemnation and Buildings are located in Makati City, an area which is classified as a
specifying the conditions and the time within such discontinuance must be destruction of that as a nuisance which in its nature, situation or use is not commercial district.
accomplished. such. Those things must be determined and resolved in the ordinary courts
of law. If a thing be in fact, a nuisance due to the manner of its operation, The division of the 24-hour period shall be as follows:
(g) Issue, renew or deny permits, under such conditions as it may that question cannot be determined by a mere resolution of the Sangguniang
determine to be reasonable, for the prevention and abatement of pollution, Bayan.[41] Morning..............5:00 A.M. to 9:00 A.M.
for the discharge of sewage, industrial waste, or for the installation or Daytime............. 8:00 A.M. to 10:00 P.M.
operation of sewage works and industrial disposal system or parts thereof: Section 17 of R.A. No. 7160 provides that local government units shall Evening.............. 6:00 P.M. to 10:00 P.M.
Provided, however, That the Commission, by rules and regulations, may discharge the functions and responsibilities of national agencies and offices Nighttime......... 10:00 P.M. to 5:00 P.M.
require subdivisions, condominium, hospitals, public buildings and other devolved to them pursuant to the law; and such other powers, functions
similar human settlements to put up appropriate central sewerage system and responsibilities as are necessary, appropriate or incidental to efficient The LGUs may conduct inspections, at all reasonable times, without doing
and sewage treatment works, except that no permits shall be required of and effective provisions of the basic services and facilities in the Code. damage, after due notice to the owners of buildings to ascertain compliance
any new sewage works or changes to or extensions of existing works that Devolution refers to the act by which the national government confers with the noise standards under the law; and to order them to comply
discharge only domestic or sanitary wastes from a single residential building powers and authority upon the various local government units to perform therewith if they fail to do so; or suspend or cancel any building permits or
provided with septic tanks or their equivalent. The Commission may specific functions and responsibilities. clearance certificates issued by it for said units/buildings after due hearing
impose reasonable fees and charges for the issuance or renewal of all as required by P.D. No. 984.
permits herein required. What were devolved by the DENR to the LGUs under DENR
Administrative Order No. 30 dated June 30, 1992, in relation to R.A. No. However, the LGUs have no power to declare a particular thing as a
xxx 7160, were the regulatory functions/duties of the National Pollution nuisance unless such as thing is a nuisance per se; nor can they effect the
Control Commission (NPCC) which were absorbed and integrated by the extrajudicial abatement of that as a nuisance which in its nature or use is
(j) Serve as arbitrator for the determination of reparations, or restitution of EMB, as provided in Title No. XIV, Chapter 2, Section 17 of the 1987 not such. Those things must be resolved by the courts in the ordinary
the damages and losses resulting from pollution. Administrative Code. However, the DENR exercises administrative course of law.
supervision and control over the LGUs. Enumerated in Chapter IV, Article
(k) Deputize in writing or request assistance of appropriate government 1, Sections 74 to 79 of the Rules and Regulations promulgated by the Whether or not noise emanating from a blower of the airconditioning units
agencies or instrumentalities for the purpose of enforcing this Decree and NPCC implementing P.D. 984 are the regulations relative to noise control, of the Feliza Building is nuisance is to be resolved only by the court in due
its implementing rules and regulations and the orders and decision of the specifically, the noise quality standards. course of proceedings. The plaintiff must prove that the noise is a nuisance
Commission. and the consequences thereof. Noise is not a nuisance per se. It may be of
Under Section 78 of said Rules, as amended by NPCC Memorandum such a character as to constitute a nuisance, even though it arises from the
xxx Circular No. 002, dated May 12, 1980, the Environmental Quality operation of a lawful business, only if it affects injuriously the health or
Standards for Noise in General Areas are:melo comfort of ordinary people in the vicinity to an unreasonable extent. Injury
(p) Exercise such powers and perform such other functions as may be to a particular person in a peculiar position or of especially sensitive
necessary to carry out its duties and responsibilities under this Decree. characteristics will not render the noise an actionable nuisance. In the
Category Morning& conditions of present living, noise seems inseparable from the conduct of
Daytime Nighttime
Section 2(a) of P.D. No. 984 defines pollution as: Of Area Evening many necessary occupations. Its presence is a nuisance in the popular sense
in which that word is used, but in the absence of statute, noise becomes
(a) "Pollution" means any alteration of the physical, chemical and biological AA 50 dB 45 dB 40 dB actionable only when it passes the limits of reasonable adjustment to the conditions of
properties of any water, air and/or land resources of the Philippines, or any
21
the locality and of the needs of the maker to the needs of the listener. What those
limits are cannot be fixed by any definite measure of quantity or quality;
they depend upon the circumstances of the particular case. They may be
affected, but are not controlled, by zoning ordinances. The delimitation of
designated areas to use for manufacturing, industry or general business is
not a license to emit every noise profitably attending the conduct of any
one of them.
The test is whether rights of property, of health or of comfort are so
injuriously affected by the noise in question that the sufferer is subjected to
a loss which goes beyond the reasonable limit imposed upon him by the
condition of living, or of holding property, in a particular locality in fact
devoted to uses which involve the emission of noise although ordinary care
is taken to confine it within reasonable bounds; or in the vicinity of
property of another owner who, though creating a noise, is acting with
reasonable regard for the rights of those affected by it.[42]
Commercial and industrial activities which are lawful in themselves may
become nuisances if they are so offensive to the senses that they render the
enjoyment of life and property uncomfortable. The fact that the cause of
the complaint must be substantial has often led to expressions in the
opinions that to be a nuisance the noise must be deafening or loud or
excessive and unreasonable. The determining factor when noise alone is the cause of
complaint is not its intensity or volume. It is that the noise is of such character as to
produce actual physical discomfort and annoyance to a person of ordinary sensibilities,
rendering adjacent property less comfortable and valuable. If the noise does that it can
well be said to be substantial and unreasonable in degree; and reasonableness is a
question of fact dependent upon all the circumstances and conditions. There can be no
fixed standard as to what kind of noise constitutes a nuisance.[43]
The courts have made it clear that in every case the question is one of
reasonableness. What is a reasonable use of one's property and whether a
particular use is an unreasonable invasion of another's use and enjoyment
of his property so as to constitute a nuisance cannot be determined by
exact rules, but must necessarily depend upon the circumstances of each
case, such as locality and the character of the surroundings, the nature,
utility and social value of the use, the extent and nature of the harm
involved, the nature, utility and social value of the use or enjoyment
invaded, and the like.[44]
Persons who live or work in thickly populated business districts must
necessarily endure the usual annoyances and of those trades and businesses
which are properly located and carried on in the neighborhood where they
live or work. But these annoyances and discomforts must not be more than
those ordinarily to be expected in the community or district, and which are
incident to the lawful conduct of such trades and businesses. If they exceed
what might be reasonably expected and cause unnecessary harm, then the
court will grant relief.[45]
A finding by the LGU that the noise quality standards under the law have
not been complied with is not a prerequisite nor constitutes indispensable
evidence to prove that the defendant is or is not liable for a nuisance and
for damages. Such finding is merely corroborative to the testimonial
and/or other evidence to be presented by the parties. The exercise of due
care by the owner of a business in its operation does not constitute a
defense where, notwithstanding the same, the business as conducted,
seriously affects the rights of those in its vicinity.[46]
We reject petitioner's contention that respondent's complaint does not
state a cause of action for abatement of a private nuisance and for
damages. Under Section 1(g), Rule 16 of the Rules of Court, a complaint
may be dismissed upon motion if the complaint states no cause of action,
or that a condition precedent for filing the claim has not been complied
with.[47]
A cause of action is the act or omission by which a party violates a right of
another.[48] A cause of action exists if the following elements are present:
(1) a right in favor of the plaintiff by whatever means and under whatever
law it arises or is created; (2) an obligation on the part of the named
defendant to respect or not to violate such right; and (3) an act or omission
on the part of such defendant violative of the right of plaintiff or
constituting a breach of the obligation of defendant to plaintiff for which
the latter may maintain an action for recovery of damages.[49]
The fundamental test for failure to state a cause of action is whether,
admitting the veracity of what appears on the face and within the four
corners of the complaint, plaintiff is entitled to the relief prayed for. Stated
otherwise, may the court render a valid judgment upon the facts alleged
therein?[50] Indeed, the inquiry is into the sufficiency, not the veracity of the
material allegations.[51] If the allegations in the complaint furnish sufficient
basis on which it can be maintained, it should not be dismissed regardless
of the defenses that may be presented by defendants.[52] As the Court
emphasized:
In determining whether allegations of a complaint are sufficient to support
a cause of action, it must be borne in mind that the complaint does not
have to establish or allege facts proving the existence of a cause of action at
the outset; this will have to be done at the trial on the merits of the case.
To sustain a motion to dismiss for lack of cause of action, the complaint
must show that the claim for relief does not exist, rather than that a claim
has been defectively stated, or is ambiguous, indefinite or uncertain.
Equally important, a defendant moving to dismiss a complaint on the
ground of lack of cause of action is regarded as having hypothetically
admitted all the averments thereof.[53]
The general rule is that the facts asserted in the complaint must be taken
into account without modification although with reasonable inferences
therefrom.[54] However, all the pleadings filed may be considered, including
annexes, motions and the other evidence on record, to wit:
However, in so doing, the .trial court does not rule on the truth or falsity of
such documents. It merely includes such documents in the hypothetical
admission. Any review of a finding of lack of cause of action based on
these documents would not involve a calibration of the probative value of
such pieces of evidence but would only limit itself to the inquiry of whether
the law was properly applied given the facts and these supporting
documents. Therefore, what would inevitably arise from such a review are
pure questions of law, and not questions of fact.[55]
Section 2, Rule 3, of the Revised Rules of Civil Procedure provides that
every action must be prosecuted or defended in the name of the real party-
in-interest.
SEC. 2. Parties in interest. - A real party in interest is the party who stands to
be benefited or injured by the judgment in the suit, or the party entitled to
the avails of the suit. Unless otherwise authorized by law or these Rules,
every action must be prosecuted or defended in the name of the real party
in interest. (2a)
"Interest" within the meaning of the rule means material interest, an
interest in essence to be affected by the judgment as distinguished from
mere interest in the question involved, or a mere incidental interest. By real
interest is meant a present substantial interest, as distinguished from a mere
expectancy or a future, contingent, subordinate or consequential
interest.[56] A real party in interest-plaintiff is one who has a legal right
while a real party defendant is one who has a correlative legal obligation
whose act or omission violate the legal right of the former.[57]
A person injured by a nuisance may bring an action in his own name and in
behalf of others similarly affected to abate the same.[58] One who has an
interest in the property affected such as the owner thereof or fix interest
therein are proper parties as plaintiffs.[59] Possession alone of real estate is
sufficient to sustain an action to recover damages from the maintenance of
a nuisance by the adjoining property in such manner as to injure the
enjoyment of the former.
In the present case, respondent made the following allegations in its
complaint below:
[Every time] the Feliza Building's airconditioning system is turned on, all or
a good number of the 36 blowers are made to operate simultaneously. The
operation of the Feliza's blowers generates a continuous defeaning
unbearable vibrating and stressful noise affecting the tenants of Frabella I
Condominium. Hot air is also blasted from the [Feliza Building's blowers
to the direction of the Frabella 1 Condominium.
xxxx
The tenants occupying the 5th to the 16th floors of the Frabella 1
Condominium facing Feliza Building are directly subjected to a daily
continuous intense noise and hot air blast coming from the blowers of the
22
[10-storey] Feliza Building. Some are tenants of plaintiff, who have
complained to plaintiff about the matter. Tenants who could not bear the
nuisance any longer have vacated their units, and as a result, many units of
plaintiff have remained vacant, and unoccupied or uninhabitable thereby
depriving plaintiff with rental income that it should have otherwise be
receiving.
xxxx
Defendant did not perform any remedial or rectification works to lower the
noise being generated by the blowers;
As a consequence of such unbearable, hot air and stressful noise, the
occupants of the Frabella I, including the tenants of plaintiff, have been
and still are, prevented from enjoying peaceful and comfortable use of their
property thereby forcing them to vacate and or to transfer elsewhere.
Notwithstanding the foregoing results, repeated requests/demands from
the plaintiff and recommendation of the DENR, MACEA and MMDA to
abate nuisance, the defendant has ignored and still continues to ignore such
requests/demands/recommendation.
Appended to respondent's complaint are its letters of demand to the
petitioner for the latter to abate the nuisance complained of, as well as the
results of the tests conducted by the DENR showing that the noise
generated by the blowers of the Feliza Building is beyond the legally
allowable level standards under Section 78 of P.D. No. 984.
By filing a motion to dismiss the complaint on the ground that the
complaint does not state a sufficient cause of action for abatement of
nuisance and damages, petitioner hypothetically admitted the material
allegations of the complaint. A plain reading of the material averments
therein and its appendages will readily show that respondent had a cause of
action for abatement of a private nuisance and for damages.
Respondent is the real party-in-interest as party plaintiff in the complaint
below because it owned several units in Frabelle I and, as a result of the
defeaning and unbearable noise from the blowers of the airconditioning
units of the Feliza Building owned by petitioner, many tenants of the
respondent vacated their units. The units remained unoccupied, thereby
depriving respondent of income. Some of the tenants even threatened to
sue respondent on account of the noise from the Feliza Building. In fine,
respondent is obliged to maintain its tenants in the peaceful and adequate
enjoyment of the units.[60]
Under Article 697 of the New Civil Code, the aggrieved party is entitled to
damages for the present and past existence of a nuisance.[61] He is entitled
to actual or compensatory damages[62] or indemnification for damages
inclusive of the value of the loss suffered and profits which respondent
failed to obtain.
Liability for nuisance may be imposed upon one who sets in motion the
force which entirely caused the tortuous act; upon one who sets in motion
a force or a chain of events resulting in the nuisance. In an action for
damages resulting from a nuisance, responsibility arises not only from the
creator of the nuisance but from its continued maintenance as well [63]. One
is entitled to damages on account of the conduct by another of his business
which unreasonably and substantially interferes with the quiet enjoyment of
his premises by himself or of his tenants.[64] It is sufficient to maintain an action
for abatement of a nuisance if his buildings is rendered valueless for the purpose it
was devoted.
A negligent act may constitute a nuisance. An intentional act may also
constitute a nuisance. A nuisance may be formed from a continuous,
known invasion, where, after complaint, and notice of damage, the
defendant continues to offend and refuses to correct or discontinue the
nuisance. In such a case, the nuisance is deemed intentional.[65] An
unreasonable use, perpetrated and uncorrected even after complaint and
notice of damage is deemed intentional.[66]
In this case, as alleged in the complaint, the subject nuisance had been
existing continuously since 1995 and, despite repeated demands by
respondent, petitioner intransigently refused to abate the same.
We reject petitioner's contention that considering the Report of the EMB
Team dated July 2, 2002 that the noise complained of by the respondent
did not necessarily come from the blowers but also from passing cars, it
follows that respondent has no cause of action against it for abatement of
nuisance. As gleaned from the Report, the panel of investigators found that
the passing of vehicles along the street and blowers of nearby buildings
were merely contributory to the ambient noise quality in the area. To
what extent the passing of vehicles contributed to the noise is not indicated
in the Report, nor is it stated that the noise coming from the blowers of the
airconditioning unit of the Feliza Building were at par with or lower than
the Level Standards under the property Rules and regulations of P.D. No.
984.
The July 2, 2002 Report of the EMB Panel should not be considered in
isolation of other Reports of the EMB since 1995 up to 2000, showing that
the noise level from the blowers of the Feliza Building exceeded the
allowable level under P.D. No. 984. The July 2, 2002 Report is not decisive
on the issue of whether petitioner had abated the nuisance complained of
by respondent or that the nuisance does not exist at all. Indeed, in Velasco v.
Manila Electric Company,[67] this Court cited the ruling in Kentucky & West
Virginia Power Co. v. Anderson,[68] thus:
xxx The determinating factor when noise alone is the cause of
complaint is not its intensity or volume. It is that the noise is of such
character as to produce actual physical discomfort and annoyance to a
person of ordinary sensibilities, rendering adjacent property less
comfortable and valuable. If the noise does that it can well be said to be
substantial and unreasonable in degree; and reasonableness is a question of
fact dependent upon all the circumstances and conditions. 20 R.C.L. 445,
453; Wheat Culvert Company v. Jenkins, supra. There can be no fixed
standard as to what kind of noise constitutes a nuisance. xxx
Besides, even if it is assumed for the nonce that petitioner had abated the
nuisance in 2002, still the complaint of the respondent states a cause of
action for damages based upon the past existence of the nuisance, from
1995. Where the injury from the alleged nuisance is temporary in its nature;
or is of a continuing or recurring character, the damages are ordinarily
regarded as continuing and one recovery against the wrongdoer is not a bar
to sanction an action for damages thereafter accruing from the same
wrong.[69]
The Complaint of the
Respondent Not Premature
Admittedly, respondent did not appeal the July 19, 2002 letter of Engr.
Morales. However, the letter was not appealable. It bears stressing that the
letter-complaint of the respondent to Mayor Jejomar Binay against
petitioner was referred to Engr. Morales for investigation of the complaint;
the latter was required to submit his Report thereon to the City Mayor for
final disposition. Engr. Morales did secure the July 2, 2002 Report of the
EMB but failed to make a Report on his findings. Until after the City
Mayor shall have acted on the findings and recommendation of Engr.
Morales an appeal therefrom would be premature.
Obviously, Engr. Morales gave respondent another chance to have the
EMB reverse or revise its July 2, 2002 Report. However, when the officials
of respondent sought a clarification of his Order, Engr. Morales was
piqued and even dared them to go to court if they were not satisfied with
the EMB Report. Respondent then sought another test by the EMB. In its
November 24, 2003, Report, the EMB confirmed that the SPL was higher
when the doors were open; as it was, the SPL readings were taken from
inside the Frabelle I. The EMB added that the noise quality standards in
Section 78 of the Implementing Rules and Regulations of P.D. No. 984
could not be applied since it is for ambient noise. It even emphasized that
the SPL are not the actual factors in the resolution of the issues.
Conformably with case law, the EMB opined, noise need not be high or
low to annoy or cause nuisance to the receptor; as long as the complainant
is disturbed with the level of sound coming from the firm, the same is a
nuisance. Clearly, the EMB was of the view that the EMB Reports are not
decisive on the issue between petitioner and respondent, and that said issue
is one beyond the competence of the LGUs, by implying that the issue is a
matter to be presented to and resolved by the ordinary courts. By returning
the records to Makati City, the EMB expected the City to dismiss the
complaint and just allow respondent, as complainant, to seek relief from
the courts. Respondent then took its cue from the EMB Report and filed
its complaint in the RTC. There is, thus, no basis for the contention of
23
petitioner that respondent failed to exhaust all administrative remedies
before filing its complaint with the RTC.
Also barren of merit are the petitioner's contention that the action of
respondent was barred by the decision of the PAB AM No. 01-0009-FLC.
While it is true that the Frabella 1 Condominium Corporation filed its
complaint against petitioner before the PAB for and in behalf of the
tenants/owners of units of Frabella I, including those owned by
respondent, however, the PAB dismissed the complaint on the ground of
lack of jurisdiction and without prejudice. The PAB ruled that respondent's
action was for abatement of a nuisance which was already devolved to the
local government.
As gleaned from the Resolution, the dismissal was without prejudice. Since
the PAB had no jurisdiction over the complaint and the dismissal was
without prejudice, respondent's action before the RTC was not barred
by res judicata or litis pendentia[70]. The decision of the PAB was not a decision
on the merits of the case.[71] Consequently, the contention of petitioner that
respondent is guilty of forum shopping has no factual basis.
IN LIGHT OF ALL THE FOREGOING, the petition
is DENIED for lack of merit. Costs against the petitioner.
SO ORDERED.
[G.R. NO. 141010 : February 7, 2007]
UNITED BF HOMEOWNERS' ASSOCIATIONS, INC., ROMEO
T. VILLAMEJOR, RAUL S. LANUEVO, ROBERTO ARNALDO,
FLORENTINO CONCEPCION, BF NORTHWEST
HOMEOWNERS' ASSOCIATION, INC., KK HOMEOWNERS'
ASSOCIATION, INC., and BF (CRAB) HOMEOWNERS'
ASSOCIATION, INC., Petitioners, v. THE (MUNICIPAL) CITY
MAYOR, THE (MUNICIPAL) CITY PLANNING AND
DEVELOPMENT COORDINATING OFFICER OR ZONING
ADMINISTRATOR, THE (MUNICIPAL) CITY ENGINEER
AND/OR BUILDING OFFICIAL, THE CHIEF OF THE
PERMITS AND LICENSES DIVISION, THE SANGGUNIANG
(BAYAN) PANGLUNGSOD, and BARANGAY BF HOMES, ALL
OF PARAÑAQUE CITY, METRO MANILA, Respondents, EL
GRANDE AGUIRRE COMMERCE AND TRADE ASSOCIATION
(EL ACTO), Respondent-Intervenor.
DECISION
CARPIO, J.:
The Case
This is a Petition for Review 1 of the 28 June 1999 Decision2 and the 16
November 1999 Resolution3 of the Court of Appeals in CA-G.R. SP No.
46624. The Court of Appeals held that Municipal Ordinance No. 97-08 is a
valid exercise of police power by the Municipality of Parañaque.4
The Facts
BF Homes Parañaque Subdivision (BF Homes Parañaque), with a land area
straddling the cities of Parañaque, Las Piñas, and Muntinlupa, is the largest
subdivision in the country.
On 11 November 1997, the Municipal Council of Parañaque enacted
Municipal Ordinance No. 97-085 entitled, "An Ordinance Prescribing the
Comprehensive Land Use Plan & Zoning of the Municipality of Parañaque
Pursuant to the Local Government Code of 1991 and Other Pertinent
Laws." Sections 11.5 and 11.6 of Municipal Ordinance No. 97-08,
reclassifying El Grande and Aguirre Avenues in BF Homes Parañaque
from residential to commercial areas, read:
11.5 C-1 LOW INTENSITY COMMERCIAL ZONES
x x x
BARANGAY BF HOMES
Lot deep both side[s] along Aguirre Avenue from Governor A. Santos
Street eastward to Gng. Elsie Gatches Street
Lot deep both side[s] along El Grande Avenue from Lopez Avenue gate
southward to corner Aguirre Avenue
xxx
11.6 C-2 MAJOR COMMERCIAL ZONES
xxx
BARANGAY BF HOMES
Lot deep both side[s] along Aguirre Avenue from Dallas to El Grande
Avenue
Lot deep both side[s] along Aguirre Avenue from El Grande Avenue to
Gov. A. Santos Street
BF Parañaque Commercial Plaza
Area bounded on the
North - Pres. Quezon Street
South - A. Aguirre Avenue
East - President's Avenue
West - MMP, Creek along BF Homeowner's Association clubhouse
Lot deep east side along President's Avenue from Mac Donald southward
to M. Rufino Street
Area bounded on the
North - A. Aguirre Avenue
South - A. Soriano Sr. & M. Rufino Street
East - President's Avenue
West - Gng. Elsie Ga[t]ches Street
x x x x6
On 27 January 1998, the United BF Homeowners' Associations, Inc.
(UBFHAI),7 several homeowners' associations, and residents of BF Homes
Parañaque (collectively petitioners) filed with the Court of Appeals a
petition for prohibition with an application for temporary restraining order
and preliminary injunction. Petitioners questioned the constitutionality of
Sections 11.5, 11.6, 15,8 17,9 and 19.610 of Municipal Ordinance No. 97-08.
Petitioners alleged that the reclassification of certain portions of BF Homes
Parañaque from residential to commercial zone is unconstitutional because
it amounts to impairment of the contracts between the developer of BF
Homes Parañaque and the lot buyers. Petitioners cited the annotation on
the lot buyers' titles which provides that "the property shall be used for
residential purposes only and for no other purpose."
On the other hand, public respondents alleged that the passage of
Municipal Ordinance No. 97-08 is a valid exercise of police power by the
Municipal Council of Parañaque and that such ordinance can nullify or
supersede the contractual obligations entered into by the petitioners and
the developer.
Meanwhile, El Grande Aguirre Commerce and Trade Organization (EL
ACTO), a non-stock, non-profit corporation, intervened as respondent. EL
ACTO claimed that its members are lot owners, residents, and operators of
commercial establishments along El Grande and Aguirre Avenues in BF
Homes Parañaque, who will be affected if Municipal Ordinance No. 97-08
is declared unconstitutional. EL ACTO asserted that Municipal Ordinance
No. 97-08 is a valid exercise of police power and that petitioners are guilty
of estoppel since petitioners endorsed the opening of many of these
commercial establishments in BF Homes Parañaque. EL ACTO further
alleged that the instant petition should have been initially filed with the
Regional Trial Court in accordance with the principle of hierarchy of
courts.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
On 28 June 1999, the Court of Appeals dismissed the petition. Petitioners
moved for reconsideration, which the Court of Appeals denied.
Hence, this petition.
The Ruling of the Court of Appeals
Citing the General Welfare Clause11 of Republic Act No. 7160 (RA 7160),
the Court of Appeals held that the enactment of Municipal Ordinance No.
97-08 which, among others, reclassified El Grande and Aguirre Avenues in
BF Homes Parañaque as commercial zones, was a valid exercise of police
power by the Municipality of Parañaque.
The Court of Appeals took judicial notice of the fact that El Grande and
Aguirre Avenues are main streets of BF Homes Parañaque which have
long been commercialized, thus:
The declaration of El Grande and Aguirre Avenues as commercial zones
through Municipal Ordinance No. 97-08 is an exercise of police power.
Obviously, because of the rapid and tremendous increase in population,
the needs of the homeowners in the BF Parañaque Subdivision grew. The
commercial zones in the area proved inadequate to service the needs of its
24
residents. There was therefore a need to open more commercial districts.
In fact, records show that several homeowners along El Grande and
Aguirre Avenues converted their residences into business establishments.
El Acto's members are among them.
Aside from the increasing number of commercial establishments therein,
judicial notice may be taken of the fact that El Grande and Aguirre
Avenues are main thoroughfares of BF Homes Parañaque which have long
been commercialized. The local government therefore responded to these
changes in the community by enacting Ordinance No. 97-08 x x x.12
The Issues
Petitioners raise the following issues:
1. Whether R.A. 7160, the Local Government Code of 1991 has repealed
PD 957, the Subdivision and Condominium Buyer's Protective Decree;
2. Whether the power of local government units to enact comprehensive
zoning ordinances has legal limitations;
3. Whether Municipal Ordinance No. 97-08 is a legitimate exercise of
police power;
4. Whether Municipal Ordinance No. 97-08 is constitutional considering
that it impairs a contractual obligation annotated in homeowners' titles and
violates the doctrine of separation of powers;
5. Whether Municipal Ordinance No. 97-08 is enforceable pending review
by the MMDA, the Metro Manila Mayor's Council and the HLURB.13
The resolution of these issues turns on the validity of Municipal Ordinance
No. 97-08.
The Ruling of the Court
The petition is without merit.
Power to Enact Zoning Ordinances
The Municipal Council of Parañaque enacted Municipal Ordinance No. 97-
08 pursuant to the provisions of RA 7160 and Executive Order No. 72. 14
Under Section 447 of RA 7160, the Sangguniang Bayan or the Municipal
Council, as the legislative body of the municipality, has the power to enact
ordinances for the general welfare of the municipality and its inhabitants.
Among the functions of the Sangguniang Bayan enumerated under Section
447 of RA 7160 are:
(2) Generate and maximize the use of resources and revenues for the
development plans, program objectives and priorities of the municipality as
provided for under Section 18 of this Code with particular attention to
agro-industrial development and countryside growth and progress, and
relative thereto, shall:
x x x
(vii) Adopt a comprehensive land use plan for the
municipality: Provided, That the formulation, adoption, or modification of
said plan shall be in coordination with the approved provincial
comprehensive land use plan;
(viii) Reclassify land within the jurisdiction of the municipality
subject to the pertinent provision of this Code;
(ix) Enact integrated zoning ordinances in consonance with the
approved comprehensive land use plan, subject to existing laws,
rules and regulations; establish fire limits or zones, particularly in
populous centers; and regulate the construction, repair or modification of
buildings within said fire limits or zones in accordance with the provisions
of the Fire Code; (Emphasis supplied)cralawlibrary
On the other hand, Executive Order No. 72 provides:
SECTION 1. Plan formulation or updating. - (a) Cities and
municipalities shall continue to formulate or update their respective
comprehensive land use plans, in conformity with the land use
planning and zoning standards and guidelines prescribed by the
HLURB pursuant to national policies.
As a policy recommending body of the LGU, the city or municipal
development council (CDC/MDC) shall initiate the formulation or
updating of its land use plan, in consultation with the concerned sectors in
the community. For this purpose, the CDC/MDC may seek the assistance
of any local official or field officer of NGA's operation in the LGU.
The city or municipal planning and development coordinator
(CPDC/MPDC) and/or the city or municipal agriculturist, if there is any,
shall provide the technical support services and such other assistance as
may be required by the CDC/MDC to effectively carry out this function.
The comprehensive land use plan prepared by the CDC/MDC shall
be submitted to the sangguniang panglungsod or sangguniang
bayan, as the case may be, for enactment into a zoning ordinance.
Such ordinance shall be enacted and approved in accordance with Articles
107 and 108 of the Implementing Rules and Regulations (IRR) of the LGC.
(b) The comprehensive land use plans of component cities and
municipalities shall be formulated, adopted, or modified in accordance with
the approved provincial comprehensive land use plans.
(c) Cities and municipalities of metropolitan Manila shall continue to
formulate or update their respective comprehensive land use plans, in
accordance with the land use planning and zoning standards and guidelines
prescribed by the HLURB pursuant to EO 392, S. of 1990, and other
pertinent national policies.
x x x x (Emphasis supplied)cralawlibrary
Under Section 3(m), Rule 131 of the Rules of Court, there is a presumption
that official duty has been regularly performed. Thus, in the absence of
evidence to the contrary, there is a presumption that public officers
performed their official duties regularly and legally and in compliance with
applicable laws, in good faith, and in the exercise of sound judgment. 15
We find no sufficient evidence disputing the regularity of the enactment of
Municipal Ordinance No. 97-08. Before the Municipal Council of
Parañaque passed Municipal Ordinance No. 97-08,16 it has been the subject
of barangay consultations and committee hearings in accordance with
Executive Order No. 72.
Reclassification of El Grande and Aguirre Avenues
Contrary to petitioners' allegations, we find Municipal Ordinance No. 97-
08 reasonable and not discriminating or oppressive with respect to BF
Homes Parañaque. As held by the Court of Appeals, the increasing number
of homeowners in BF Homes Parañaque necessitated the addition of
commercial areas in the subdivision to service the needs of the
homeowners. In fact, several homeowners along El Grande and Aguirre
Avenues already converted their residences into business establishments.
Furthermore, as found by the Court of Appeals, El Grande and Aguirre
Avenues are main thoroughfares in BF Homes Parañaque which have long
been commercialized.
Even petitioner UBFHAI, the recognized umbrella organization of all
homeowners' associations in BF Homes Parañaque, acknowledged the
need for additional commercial area. Records reveal that as early as 30 July
1989, UBFHAI recommended for approval an "Amended Integrated
Zoning Policies and Guidelines for BF Homes Parañaque." 17 UBFHAI
proposed another commercial zone in BF Homes Parañaque to
accommodate the growing needs of the residents, thus:
Subject to the approval of BF Homes, Inc., the Local Zoning
Official/Planning Officer of Parañaque and the Metro Manila Commission
and in recognition of the fact that the subdivision has tremendously
grown in size and population since 1983 when the above-mentioned
guidelines of the MMC [Ordinance 81-01] were promulgated, such
that one commercial zone for the entire subdivision is now
inadequate vis-a-vis the needs of the residents, the UBFHAI is
proposing another commercial zone in Phase III of the Subdivision,
in the vicinity of the Parish of the Presentation of the Child Jesus as
follows:
25
One lot deep along Aguirre Avenue from Gov. Santos St., to the end
of Aguirre Avenue and two lots deep along El Grande from where it
intersects Aguirre Avenue.
Pending approval of the aforesaid proposal, commercial buildings
constructed and existing in the aforesaid area will be given
temporary-use permits good for five (5) years from December 31,
1986 or until December 31, 1991, after which, the same must revert to
residential status, unless, in the meantime the proposal is approved,
provided all such buildings must comply with the set-back and parking
provision of the Metro Manila Commission Ordinance 81-01; I.M. 09-83.
x x x
The term for temporary use permits of the designated commercial
area shall be considered extended for 8 years from December 31, 1991
to December 31, 1998; without prejudice to the official conversion of
the area under existing MMA/LGC guidelines to
commercial.18 (Emphasis supplied)cralawlibrary
Thus, UBFHAI's proposed new commercial area, encompassing El Grande
and Aguirre Avenues, is substantially the same area, which Municipal
Ordinance No. 97-08 later reclassified as a commercial zone.
Furthermore, in the subsequent years, UBFHAI and its member
homeowners' associations endorsed the issuance of municipal and barangay
permits for commercial establishments along El Grande and Aguirre
Avenues. Contrary to petitioners' allegations, the commercial
establishments endorsed by UBFHAI were not mere convenience stores,
which Metro Manila Commission Ordinance No. 81-0119 and Municipal
Ordinance No. 97-08 allow in residential areas. Among the commercial
establishments which UBFHAI endorsed were a trading
business,20 electronics repair shop,21 mini-grocery store,22 beauty
salon,23 school,24 dress shop,25 and consultancy or management services
business.26
Clearly, the reclassification of El Grande and Aguirre Avenues in BF
Homes Parañaque as commercial area was reasonable and justified under
the circumstances.
Non-Impairment of Contract
Petitioners invoke Presidential Decree No. 957 (PD 957),27 otherwise
known as the Subdivision and Condominium Buyers' Protective Decree.
Petitioners maintain that PD 957 is intended primarily to protect the buyers
and to ensure that subdivision developers keep their promises and
representations. Petitioners allege that one of the promises of the
developer of BF Homes Parañaque is that the property shall be used for
residential purposes only. Petitioners assert that the reclassification of
certain portions of BF Homes Parañaque from residential to commercial
zone is unconstitutional because it impairs the contracts between the
developer of BF Homes Parañaque and the lot buyers.
The Court has upheld in several cases the superiority of police power over
the non-impairment clause.28 The constitutional guaranty of non-
impairment of contracts is limited by the exercise of the police power of
the State, in the interest of public health, safety, morals and general
welfare.29
In Ortigas & Co., Limited Partnership v. Feati Bank and Trust Co.,30 the Court
held that contractual restrictions on the use of property could not prevail
over the reasonable exercise of police power through zoning regulations.
The Court held:
With regard to the contention that said resolution cannot nullify the
contractual obligations assumed by the defendant-appellee referring to the
restrictions incorporated in the deeds of sale and later in the corresponding
Transfer Certificates of Title issued to defendant-appellee it should be
stressed, that while non-impairment of contracts is constitutionally
guaranteed, the rule is not absolute, since it has to be reconciled with
the legitimate exercise of police power, i.e., "the power to prescribe
regulations to promote the health, morals, peace, education, good
order or safety and general welfare of the people." Invariably
described as "the most essential, insistent, and illimitable of powers"
and "in a sense, the greatest and most powerful attribute of
government," the exercise of the power may be judicially inquired
into and corrected only if it is capricious, whimsical, unjust or
unreasonable, there having been a denial of due process or a
violation of any other applicable constitutional guarantee. As this
Court held through Justice Jose P. Bengzon in Philippine Long Distance
Company v. City of Davao, et al., police power "is elastic and must be
responsive to various social conditions; it is not confined within narrow
circumscriptions of precedents resting on past conditions; it must follow
the legal progress of a democratic way of life." We were even more
emphatic in Vda. De Genuino v. The Court of Agrarian Relations, et al., when
We declared: "We do not see why the public welfare when clashing
with the individual right to property should not be made to prevail
through the state's exercise of its police power."
Resolution No. 27. s-1960 declaring the western part of Highway 54, now
E. de los Santos Avenue (EDSA, for short) from Shaw Boulevard to the
Pasig River as an industrial and commercial zone, was obviously passed by
the Municipal Council of Mandaluyong, Rizal in the exercise of police
power to safeguard or promote the health, safety, peace, good order and
general welfare of the people in the locality. Judicial notice may be taken of
the conditions prevailing in the area, especially where Lots Nos. 5 and 6 are
located. The lots themselves not only front the highway; industrial and
commercial complexes have flourished about the place. EDSA, a main
traffic artery which runs through several cities and municipalities in the
Metro Manila area, supports an endless stream of traffic and the resulting
activity, noise and pollution are hardly conducive to the health, safety or
welfare of the residents in its route. Having been expressly granted the
power to adopt zoning and subdivision ordinances or regulations, the
municipality of Mandaluyong, through its Municipal Council, was
reasonably, if not perfectly, justified under the circumstances, in passing the
subject resolution.31 (Emphasis supplied)cralawlibrary
Likewise, in Sangalang v. Intermediate Appellate Court,32 the Court upheld
Metro Manila Commission Ordinance No. 81-01, which reclassified Jupiter
Street in Makati into a high-density commercial zone, as a legitimate
exercise of police power. The Court held that the power of the Metro
Manila Commission and the Makati Municipal Council to enact zoning
ordinances for the general welfare prevails over the deed restrictions on the
lot owners in Bel-Air Village which restricted the use of the lots for
residential purposes only. The Court held:
It is not that we are saying that restrictive easements, especially the
easements herein in question, are invalid or ineffective. As far as the Bel-
Air subdivision itself is concerned, certainly, they are valid and enforceable.
But they are, like all contracts, subject to the overriding demands, needs,
and interests of the greater number as the State may determine in the
legitimate exercise of police power. Our jurisdiction guarantees sanctity
of contract and is said to be the "law between the contracting
parties," but while it is so, it cannot contravene "law, morals, good
customs, public order, or public policy." Above all, it cannot be
raised as a deterrent to police power, designed precisely to promote
health, safety, peace, and enhance the common good, at the expense
of contractual rights, whenever necessary. x x x33 (Emphasis
supplied)cralawlibrary
Similarly, in this case, Municipal Ordinance No. 97-08 is a legitimate
exercise of police power and the reclassification of El Grande and Aguirre
Avenues in BF Homes Parañaque is not arbitrary or unreasonable.
WHEREFORE,we AFFIRM the Decision dated 28 June 1999 and the
Resolution dated 16 November 1999 of the Court of Appeals in CA-G.R.
SP No. 46624.
SO ORDERED.
G.R. No. 187836 November 25, 2014
SOCIAL JUSTICE SOCIETY (SJS) OFFICERS, NAMELY,
SAMSON S. ALCANTARA, and VLADIMIR ALARIQUE T.
CABIGAO, Petitioners,
vs.
ALFREDO S. LIM, in his capacity as mayor of the City of Manila,
Respondent.
x-----------------------x
G.R. No. 187916
26
 PROVIDING FOR THE ADMINISTRATION, ENFORCEMENT AND
JOSE L. ATIENZA, JR., BIENVINIDO M. ABANTE, MA. LOURDES M. ISIP- AMENDMENT THERETO." Former Mayor Alfredo S. Lim (Mayor Lim) Incumbent Mayor of Manila at
GARCIA, RAFAEL P. BORROMEO JOCELYN DAWIS-ASUNCION, minors the time of the filing of the
MARIAN REGINA B. TARAN, MACAILA RICCI B. TARAN, RICHARD The Parties present petitions
KENNETH B. TARAN, represented and joined by their parents RICHARD AND
MARITES TARAN, minors CZARINA ALYSANDRA C. RAMOS, CEZARAH Petitioners allege the parties’ respective capacity to sue and be sued, viz: Respondents Sued in their capacity as
ADRIANNA C. RAMOS, and CRISTEN AIDAN C. RAMOS represented and
joined by their mother DONNA C. RAMOS, minors JAZMIN SYLLITA T. VILA Petitioners Residence G.R. No. 187916
AND ANTONIO T. CRUZ IV, represented and joined by their mother in Manila Suing capacity aside from being residents of Manila other personal
MAUREEN C. TOLENTINO, Petitioners, circumstances Vice-Mayor Francisco Domagoso (Vice-Mayor
vs. G.R. No. 187836 Domagoso) Vice-Mayor and Presiding Officer
MAYOR ALFREDO S. LIM, VICE MAYOR FRANCISCO DOMAGOSO, of the City Council of Manila
COUNCILORS ARLENE W. KOA, MOISES T. LIM, JESUS FAJARDO SJS Officer Samson S. Alcantara Arlene Woo Koa Principal author of City
LOUISITO N. CHUA, VICTORIANO A. MELENDEZ, JOHN MARVIN C. (Alcantara) Not mentioned in the petition; holding office in Ermita, Ordinance No. 8187
NIETO, ROLANDO M. VALERIANO, RAYMUNDO R. YUPANGCO, Manila Manila taxpayer; Moises T. Lim, Jesus Fajardo, Louisito N. Chua, Victoriano A. Melendez, John
EDWARD VP MACEDA, RODERICK D. V ALBUENA, JOSEFINA M. One of the petitioners in SJS v. Atienza (G.R. No. 156052);* Marvin Nieto, Rolando M. Valeriano, Raymondo R. Yupangco, Edward VP
SISCAR, SALVADOR PHILLIP H. LACUNA, LUCIANO M. VELOSO, Pesident of ABAKADA GURO Maceda, Roderick D. Valbuena, Josefina M. Siscar, Phillip H. Lacuna, Luciano M.
CARLO V. LOPEZ, ERNESTO F. RIVERA,1 DANILO VICTOR H. LACUNA, PARTY LIST with members who Veloso, Carlo V. Lopez, Ernesto F. Rivera,6 Danilo Victor H. Lacuna, Jr., Ernesto
JR., ERNESTO G. ISIP, HONEY H. LACUNA-PANGAN, ERNESTO M. are residents of the City of Manila G. Isip, Honey H. Lacuna-Pangan, Ernesto M. Dionisio, Jr., Erick Ian O. Nieva
DIONISO, JR. and ERICK IAN O. NIEVA, Respondents. SJS Officer Vladimir Alarique T. Cabigao (Cabigao) Pandacan One of the Personal and official capacities as councilors who voted and approved
petitioners in SJS v. Atienza (G.R. No. 156052) City Ordinance No. 8187
x-----------------------x * The allegation is inaccurate. SJS Officer Alcantara is actually one of the counsels The following intervenors, all of which are corporations organized under Philippine
for petitioner SJS in G.R. No. 156052. The petitioners in that case are the SJS itself, laws, intervened:7
CHEVRON PHILIPPINES INC., PETRON CORPORATION AND Cabigao and Bonifacio S. Tumbokon (Tumbokon).
PILIPINAS SHELL PETROLEUM CORPORATION, Intervenors. Intervenors Nature of Business
DECISION G.R. No. 187916
Chevron Philippines,
PEREZ, J.: Former Mayor Jose L. Atienza, Jr. (Mayor Atienza) San Andres Former Inc. (CHEVRON) importing, distributing and marketing of petroleum products in
Mayor of Manila; the Philippines since 1922
Challenged in these consolidated petitions2 is the validity of Ordinance No. 81873 Secretary of Department of Pilipinas Shell Petroleum Corporation (SHELL) manufacturing, refining,
entitled "AN ORDINANCE AMENDING ORDINANCE NO. 8119, Environment and Natural importing, distributing and marketing of petroleum products in the Philippines
OTHERWISE KNOWN AS ‘THE MANILA COMPREHENSIVE LAND USE Resources (DENR) Petron Corporation (PETRON) manufacturing, refining, importing,
PLAN AND ZONING ORDINANCE OF 2006,’ BY CREATING A MEDIUM Bienvinido M. Abante Sta. Ana Citizen and taxpayer; distributing and marketing of petroleum products in the Philippines
INDUSTRIAL ZONE (1-2) AND HEAVY INDUSTRIAL ZONE (1-3), AND member of the House of They claim that their rights with respect to the oil depots in Pandacan would be
PROVIDING FOR ITS ENFORCEMENT" enacted by the Sangguniang Representatives directly affected by the outcome of these cases.
Panlungsod of Manila (Sangguniang Panlungsod) on 14 May 2009. Ma. Lourdes M. Isip-Garcia San Miguel Incumbent City Councilor of
the The Antecedents
The creation of a medium industrial zone (1-2) and heavy industrial zone (1-3) City of Manila
effectively lifted the prohibition against owners and operators of businesses, Rafael P. Borromeo Paco Incumbent City Councilor of the These petitions are a sequel to the case of Social Justice Society v. Mayor Atienza,
including herein intervenors Chevron Philippines, Inc. (Chevron), Pilipinas Shell City of Manila Jr.8 (hereinafter referred to asG.R. No. 156052), where the Court found: (1) that
Petroleum Corporation (Shell), and Petron Corporation (Petron), collectively Jocelyn Dawis-Asuncion Sta. Mesa Incumbent City Councilor of the the ordinance subject thereof – Ordinance No. 8027 – was enacted "to safeguard
referred to as the oil companies, from operating in the designated commercial zone City of Manila the rights to life, security and safety of the inhabitants of Manila;"9 (2) that it had
– an industrial zone prior to the enactment of Ordinance No. 80274 entitled "AN Minors Marian Regina B. Taran, Macalia Ricci B. Taran, Richard Kenneth B. Taran, passed the tests of a valid ordinance; and (3) that it is not superseded by Ordinance
ORDINANCE RECLASSIFYING THE LAND USE OF THAT PORTION OF represented and joined by their parents Richard and Marites Taran Paco No. 8119.10 Declaring that it is constitutional and valid,11 the Court accordingly
LAND BOUNDED BY THE PASIGRIVER IN THE NORTH, PNR Citizens, real estate owners and ordered its immediate enforcement with a specific directive on the relocation and
RAILROAD TRACK IN THE EAST, BEATA ST. IN THE SOUTH, taxpayers transfer of the Pandacan oil terminals.12
PALUMPONG ST. IN THE SOUTHWEST AND ESTERO DE PANDACAN Minors Czarina Alysandra C. Ramos, Cezarah Adrianna C. Ramos, and Cristen
IN THE WEST, PNR RAILROAD IN THE NORTHWEST AREA, ESTERO Aidan C. Ramos represented and joined by Highlighting that the Court has soruled that the Pandacan oil depots should leave,
DE PANDACAN IN THE NORTHEAST, PASIG RIVER IN THE their mother Donna c. Ramos Tondo Citizens, real estate owners and herein petitioners now seek the nullification of Ordinance No. 8187, which
SOUTHEAST AND DR. M. L. CARREON IN THE SOUTHWEST, THE taxpayers contains provisions contrary to those embodied in Ordinance No. 8027. Allegations
AREA OF PUNTA, STA.ANA BOUNDED BY THE PASIG RIVER, Minors Jasmin Syllita T. Vila and Antonio T. Cruz IV, represented and joined by of violation of the right to health and the right to a healthful and balanced
MARCELINO OBRERO ST., MAYO 28 ST. AND THE F. MANALO STREET their mother Maureen C. Tolentino Sta. Ana Citizens, real estate owners and environment are also included.
FROM INDUSTRIAL II TO COMMERCIAL I," and Ordinance No. 81195 taxpayers
entitled "AN ORDINANCE ADOPTING THE MANILA COMPREHENSIVE For a better perspective of the facts of these cases, we again trace the history of the
LAND USE PLAN AND ZONING REGULATIONS OF 2006 AND Respondents Sued in their capacity as Pandacan oil terminals, aswell as the intervening events prior to the reclassification
G.R. Nos. 187836 and 187916 of the land use from Industrial II to Commercial I under Ordinance No. 8027 until
27
the creation of Medium Industrial Zone and Heavy Industrial Zone pursuant to
Ordinance No. 8187.
History of the Pandacan
Oil Terminals
We quote the following from the Resolution of the Court in G.R. No. 156052:
Pandacan (one of the districts of the City of Manila) is situated along the banks of
the Pasig [R]iver. Atthe turn of the twentieth century, Pandacan was unofficially
designated as the industrial center of Manila. The area, then largely uninhabited, was
ideal for various emerging industries as the nearby river facilitated the
transportation of goods and products. In the 1920s, it was classifiedas an industrial
zone. Among its early industrial settlers werethe oil companies. x x x On December
8, 1941, the Second World War reached the shores of the Philippine Islands. x x x
[I]n their zealous attempt to fend off the Japanese Imperial Army, the United States
Army took control of the Pandacan Terminals and hastily made plans to destroy
the storage facilities to deprive the advancing Japanese Army of a valuable logistics
weapon. The U.S. Army burned unused petroleum, causing a frightening
conflagration. Historian Nick Joaquin recounted the events as follows:
After the USAFFE evacuated the City late in December 1941, all army fuel storage
dumps were set on fire. The flames spread, enveloping the City in smoke, setting
even the rivers ablaze, endangering bridges and all riverside buildings. … For one
week longer, the "open city" blazed—a cloud of smoke by day, a pillar of fire by
night.
The fire consequently destroyed the Pandacan Terminals and rendered its network
of depots and service stations inoperative.
After the war, the oil depots were reconstructed. Pandacan changed as Manila
rebuilt itself. The three major oil companies resumed the operation of their depots.
But the district was no longer a sparsely populated industrial zone; it had evolved
into a bustling, hodgepodge community. Today, Pandacan has become a densely
populated area inhabited by about 84,000 people, majority of whom are urban poor
who call it home. Aside from numerous industrial installations, there are also small
businesses, churches, restaurants, schools, daycare centers and residences situated
there. Malacañang Palace, the official residence of the President of the Philippines
and the seat of governmental power, is just two kilometers away. There is a private
school near the Petron depot. Along the walls of the Shell facility are shanties of
informal settlers. More than 15,000 students are enrolled in elementary and high
schools situated near these facilities. A university with a student population of
about 25,000 is located directly across the depot on the banks of the Pasig [R]iver.
The 36-hectare Pandacan Terminals house the oil companies’ distribution terminals
and depot facilities.1âwphi1 The refineries of Chevron and Shell in Tabangao and
Bauan, both in Batangas, respectively, are connected to the Pandacan Terminals
through a 114-kilometer underground pipeline system. Petron’s refinery in Limay,
Bataan, on the other hand, also services the depot. The terminals store fuel and
other petroleum products and supply 95% of the fuel requirements of Metro
Manila, 50% of Luzon’s consumption and 35% nationwide. Fuel can also be
transported through barges along the Pasig [R]iver ortank trucks via the South
Luzon Expressway.13 (Citations omitted)
Memorandum of Agreement (MOA)
dated 12 October 2001 between the oil companies
and the Department of Energy (DOE)
On 12 October 2001, the oil companies and the DOE entered into a MOA14 "in
light of recent international developments involving acts of terrorism on civilian
and government landmarks,"15 "potential new security risks relating to the
Pandacan oil terminals and the impact on the surrounding community which may
be affected,"16 and "to address the perceived risks posed by the proximity of
communities, businesses and offices to the Pandacan oil terminals, consistent with
the principle of sustainable development."17 The stakeholders acknowledged that
"there is a need for a comprehensive study to address the economic, social,
environmental and security concerns with the end in view of formulating a Master
Plan to address and minimize the potential risks and hazards posed by the
proximity of communities, businesses and offices to the Pandacan oil terminals
without adversely affecting the security and reliability of supply and distribution of
petroleum products to Metro Manila and the rest of Luzon, and the interests of
consumers and users of such petroleum products in those areas."18
The enactment of Ordinance No. 8027
against the continued stay of the oil depots
The MOA, however, was short-lived.
On 20 November 2001, during the incumbency of former Mayor Jose L. Atienza,
Jr. (Mayor Atienza) – nowone of the petitioners in G.R. No. 187916 – the
Sangguniang Panlungsod enacted Ordinance No. 802719 reclassifying the use of
the land in Pandacan, Sta. Ana, and its adjoining areas from Industrial II to
Commercial I.
The owners and operators of the businesses thus affected by the reclassification
were given six months from the date of effectivity of the Ordinance within which
to stop the operation of their businesses.
Nevertheless, the oil companies weregranted an extension of until 30 April 2003
within which to comply with the Ordinance pursuant to the following:
(1) Memorandum of Understanding (MOU)20 dated 26 June 2002 between the City
of Manila and the Department of Energy (DOE), on the one hand, and the oil
companies, on the other, where the parties agreed that "the scaling down of the
Pandacan Terminals [was] the most viable and practicable option"21 and
committed to adopt specific measures22 consistent with the said objective;
(2) Resolution No. 97 dated 25 July 200223 of the Sangguniang Panlungsod, which
ratified the 26 June 2002 MOU but limited the extension of the period within
which to comply to six months from 25 July 2002; and
(3) Resolution No. 13 dated 30 January 200324 of the Sanguniang Panlungsod,
which extended the validity of Resolution No. 97 to 30 April 2003, authorized then
Mayor Atienza to issue special business permits to the oil companies, and called for
a reassessment of the ordinance.
Social Justice Society v. Atienza (G.R. No. 156052):
The filing of an action for mandamus
before the Supreme Court
to enforce Ordinance No. 8027
In the interim, an original action for mandamus entitled Social Justice Society v.
Atienza, Jr. docketed as G.R. No. 15605225 was filed on 4 December 2002 by
Tumbokon and herein petitioners SJS and Cabigao against then Mayor Atienza.
The petitioners sought to compel former Mayor Atienza to enforce Ordinance No.
8027 and cause the immediate removal of the terminals of the oil companies.26
Issuance by the Regional Trial Court (RTC)
of writs of preliminary prohibitory injunction
and preliminary mandatory injunction,
and status quo order in favor of the oil companies
Unknown to the Court, during the pendency of G.R. No. 156052, and before the
expiration of the validity ofResolution No. 13, the oil companies filed the following
actions before the Regional Trial Court of Manila: (1) an action for the annulment
of Ordinance No. 8027 with application for writs of preliminary prohibitory
injunction and preliminary mandatory injunction – by Chevron; (2) a petition for
prohibition and mandamus also for the annulment of the Ordinance with
application for writs of preliminary prohibitory injunction and preliminary
mandatory injunction – by Shell; and (3) a petition assailing the validity of the
Ordinance with prayer for the issuance of a writ of preliminary injunction and/or
temporary restraining order (TRO) – by Petron.27
Writs of preliminary prohibitory injunction and preliminary mandatory injunction
were issued in favor of Chevron and Shell on 19 May 2003. Petron, on the other
hand, obtained a status quo order on 4 August 2004.28
The Enactment of Ordinance No. 8119 defining the Manila land use plan and
zoning regulations
On 16 June 2006, then Mayor Atienza approved Ordinance No. 8119 entitled "An
Ordinance Adopting the Manila Comprehensive Land Use Plan and Zoning
Regulations of 2006 and Providing for the Administration, Enforcement and
Amendment thereto."29
Pertinent provisions relative to these cases are the following:
(a) Article IV, Sec. 730 enumerating the existing zones or districts in the City of
Manila;
(b) Article V, Sec. 2331 designating the Pandacan oil depot area as a "Planned Unit
Development/Overlay Zone" (O-PUD); and
(c) the repealing clause, which reads:
SEC. 84. Repealing Clause. – All ordinances, rules, regulations in conflict with the
provisions of this Ordinance are hereby repealed; PROVIDED, That the rights that
are vested upon the effectivity of this Ordinance shall not be impaired.32
7 March 2007 Decision in G.R. No. 156052;
The mayor has the mandatory legal duty to enforce
Ordinance No. 8027 and order the removal of the Pandacan terminals
On 7 March 2007, the Court granted the petition for mandamus, and directed then
respondent Mayor Atienza to immediately enforce Ordinance No. 8027.33
Confined to the resolution of the following issues raised by the petitioners, to wit:
28

1. whether respondent [Mayor Atienza]has the mandatory legal duty to enforce
Ordinance No. 8027 and order the removal of the Pandacan Terminals, and
2. whether the June 26, 2002 MOU and the resolutions ratifying it can amend or
repeal Ordinance No. 8027.34
the Court declared:
x x x [T]he Local Government Code imposes upon respondent the duty, as city
mayor, to "enforce all laws and ordinances relative to the governance of the city."
One of these is Ordinance No. 8027. As the chief executive of the city, he has the
duty to enforce Ordinance No. 8027 as long as it has not been repealed by the
Sanggunian or annulled by the courts. He has no other choice. It is his ministerial
duty to do so. x x x
xxxx
The question now is whether the MOU entered into by respondent with the oil
companies and the subsequent resolutions passed by the Sanggunianhave made the
respondent’s duty to enforce Ordinance No. 8027 doubtful, unclear or uncertain. x
xx
We need not resolve this issue. Assuming that the terms of the MOU were
inconsistent with Ordinance No. 8027, the resolutions which ratified it and made it
binding on the Cityof Manila expressly gave it full force and effect only until April
30, 2003. Thus, at present, there is nothing that legally hinders respondent from
enforcing Ordinance No. 8027.
Ordinance No. 8027 was enacted right after the Philippines, along with the rest of
the world, witnessed the horror of the September 11, 2001 attack on the Twin
Towers of the World Trade Center in New York City. The objective of the
ordinance is toprotect the residents of Manila from the catastrophic devastation
that will surely occur in case of a terrorist attack on the Pandacan Terminals. No
reason exists why such a protective measure should be delayed.35 (Emphasis
supplied; citations omitted)
13 February 2008 Resolution in G.R. No. 156052;
Ordinance No. 8027 is constitutional
The oil companies and the Republic of the Philippines, represented by the DOE,
filed their motions for leave to intervene and for reconsideration of the 7 March
2007 Decision. During the oral arguments, the parties submitted to the power of
the Court torule on the constitutionality and validity of the assailed Ordinance
despite the pendency of the cases in the RTC.36
On 13 February 2008, the Court granted the motions for leave to intervene of the
oil companies and the Republic of the Philippines but denied their respective
motions for reconsideration. The dispositive portion of the Resolution reads:
WHEREFORE, x x x
We reiterate our order to respondent Mayor of the City of Manila to enforce
Ordinance No. 8027. In coordination with the appropriate agencies and other
parties involved, respondent Mayor is hereby ordered to oversee the relocation and
transfer of the Pandacan Terminals out of its present site.37
13 February 2008 Resolution in G.R. No. 156052;
Ordinance No. 8027 was not impliedly repealed
by Ordinance No. 8119
The Court also ruled that Ordinance No. 8027 was not impliedly repealed by
Ordinance No. 8119. On this score, the Court ratiocinated:
For the first kind of implied repeal, there must be an irreconcilable conflict between
the two ordinances. There is no conflict between the two ordinances. Ordinance
No. 8027 reclassified the Pandacan area from Industrial II to Commercial I.
Ordinance No. 8119, Section 23, designated it as a "Planned Unit
Development/Overlay Zone (O-PUD)." In its Annex "C" which defined the zone
boundaries, the Pandacan area was shown to be within the "High Density
Residential/Mixed Use Zone (R-3/MXD)." x x x [B]oth ordinances actually have a
common objective, i.e., to shift the zoning classification from industrial to
commercial (Ordinance No. 8027) or mixed residential commercial (Ordinance No.
8119)
xxxx
Ordinance No. 8027 is a special law since it deals specifically with a certain area
described therein (the Pandacan oil depot area) whereas Ordinance No. 8119 can
be considered a general law as it covers the entire city of Manila.
xxxx
x x x The repealing clause of Ordinance No. 8119 cannot be taken to indicate the
legislative intent to repeal all prior inconsistent laws on the subject matter, including
Ordinance No. 8027, a special enactment, since the aforequoted minutes (an official
record of the discussions in the Sanggunian) actually indicated the clear intent to
preserve the provisions of Ordinance No. 8027.38
Filing of a draft Resolution amending Ordinance No. 8027 effectively allowing
the oil depots to stay in the Pandacan area; Manifestation and
Motion to forestall the passing of the new Ordinance filed in G.R. No. 156052
On 5 March 2009, respondent then Councilor Arlene W. Koa, filed with the
Sangguniang Panlungsod a draft resolution entitled "An Ordinance Amending
Ordinance No. 8119 Otherwise Known as ‘The Manila Comprehensive Land Use
Plan and Zoning Ordinance of 2006’ by Creating a Medium Industrial Zone (1-2)
and Heavy Industrial Zone (1-3) and Providing for its Enforcement."39 Initially
numbered as Draft Ordinance No. 7177, this was later renumbered as Ordinance
No. 8187, the assailed Ordinance in these instant petitions.
Considering that the provisions thereof run contrary to Ordinance No. 8027, the
petitioners in G.R. No. 156052 filed a "Manifestation and Motion to: a) Stop the
City Council of Manila from further hearing the amending ordinance to Ordinance
No. 8027; [and] b) Transfer the monitoring of the enforcement of the Resolution of
the Honorable Court on this case dated 13 February 2008 from Branch 39, Manila
Regional Trial Court to the Supreme Court."40
28 April 2009 Resolution in G.R. No. 156052;
Second Motion for Reconsideration denied with finality;
succeeding motions likewise denied or otherwise noted without action
On 28 April 2009, pending the resolution of the Manifestation and Motion, the
Court denied with finalitythe second motion for reconsideration dated 27 February
2008 of the oil companies.41
It further ruled that no further pleadings shall be entertained in the case.42
Succeeding motions were thus deniedand/or noted without action. And, after the
"Very Urgent Motion to Stop the Mayor of the City of Manila from Signing Draft
Ordinance No. 7177 and to Cite Him for Contempt if He Would Do So" filed on
19 May 2009 was denied on 2 June 2009 for being moot,43 all pleadings pertaining
to the earlier motion against the drafting of an ordinance to amend Ordinance No.
8027 were noted without action.44
The Enactment of Ordinance No. 8187
allowing the continued stay of the oil depots
On 14 May 2009, during the incumbency of former Mayor Alfredo S. Lim (Mayor
Lim), who succeeded Mayor Atienza, the Sangguniang Panlungsod enacted
Ordinance No. 8187.45
The new Ordinance repealed, amended, rescinded or otherwise modified
Ordinance No. 8027, Section 23 of Ordinance No. 8119, and all other Ordinances
or provisions inconsistent therewith46 thereby allowing, once again, the operation
of "Pollutive/Non-Hazardous and Pollutive/Hazardous manufacturing and
processing establishments" and "Highly Pollutive/Non-Hazardous[,]
Pollutive/Hazardous[,] Highly Pollutive/Extremely Hazardous[,] Non-
Pollutive/Extremely Hazardous; and Pollutive/Extremely Hazardous; and
Pollutive/Extremely Hazardous manufacturing and processing establishments"
within the newly created Medium Industrial Zone (1-2) and Heavy Industrial Zone
(1-3) in the Pandacan area.
Thus, where the Industrial Zoneunder Ordinance No. 8119 was limited to Light
Industrial Zone (I-1), Ordinance No. 8187 appended to the list a Medium Industrial
Zone (I-2) and a Heavy Industrial Zone (I-3), where petroleum refineries and oil
depots are now among those expressly allowed.
Hence these petitions.
The Petitions
G.R. No. 187836
To support their petition for prohibition against the enforcement of Ordinance No.
8187, the petitioner Social Justice Society (SJS) officers allege that:
1. The enactment of the assailed Ordinance is not a valid exercise of police power
because the measures provided therein do not promote the general welfare of the
people within the contemplation of the following provisions of law:
a) Article III, Section 18 (kk)47 of Republic Act No. 409 otherwise known as the
"Revised Charter of the City of Manila," which provides that the Municipal Board
shall have the legislative power to enact all ordinances it may deem necessary and
proper;
b) Section 1648 of Republic Act No. 7160 known as the Local Government Code,
which defines the scope of the general welfare clause;
29

2. The conditions at the time the Court declared Ordinance No. 8027 constitutional
in G.R. No. 156052 exist to this date;
3. Despite the finality of the Decision in G.R. No. 156052, and notwithstanding
that the conditions and circumstances warranting the validity of the Ordinance
remain the same, the Manila City Council passed a contrary Ordinance, thereby
refusing to recognize that "judicial decisions applying or interpreting the laws or the
Constitution form part of the legal system of the Philippines;"49 and
4. Ordinance No. 8187 is violative of Sections 15 and 16, Article II of the
Constitution of the Philippines on the duty of the State "to protect and promote
the right to health of the people"50 and "protect and advance the right of the
people to a balanced and healthful ecology."51 Petitioners pray that Ordinance No.
8187 of the City of Manila be declared null and void, and that respondent, and all
persons acting under him, be prohibited from enforcing the same.
G.R. No. 187916
The petition for Prohibition, Mandamus and Certiorari with Prayer for Temporary
Restraining Order and/or Injunction against the enforcement of Ordinance No.
8187 of former Secretary of Department of Environment and Natural Resources
and then Mayor Atienza, together with other residents and taxpayers of the City of
Manila, also alleges violation of the right to health of the people and the right to a
healthful and balanced environment under Sections 15 and 16 of the Constitution.
Petitioners likewise claim that the Ordinance is in violation of the following health
and environment-related municipal laws, and international conventions and treaties
to which the Philippines is a state party:
1. Municipal Laws –
(a) Sections 4,52 12,53 1954 and 3055 of Republic Act No. 8749 otherwise known
as the Philippine Clean Air Act;
(b) Environment Code (Presidential Decree No. 1152);
(c) Toxic and Hazardous Wastes Law (Republic Act No. 6969); and
(d) Civil Code provisions on nuisance and human relations;
2. International Conventions and Treaties to which the Philippines is a state party –
a. Section 1 of the Universal Declaration of Human Rights, which states that
"[e]veryone has the right to life, liberty and security of person;"
b. Articles 6,56 2457 and 2758 of the Convention on the Rights of the Child,
summarized by the petitioners in the following manner:
1. the human right to safe and healthy environment[;]
2. human right to the highest attainable standard of health[;]
3. the human right to ecologically sustainable development[;]
4. the human right to an adequate standard of living, including access to safe food
and water[;]
5. the human right of the child to live in an environment appropriate for physical
and mental development[; and]
6. the human right to full and equal participation for all persons in environmental
decision-making and development planning, and in shaping decisions and policies
affecting one’s community, at the local, national and international levels.59
Petitioners likewise posit that the title of Ordinance No. 8187 purports to amend or
repeal Ordinance No. 8119 when it actually intends to repeal Ordinance No. 8027.
According to them, Ordinance No. 8027 was never mentioned in the title and the
body of the new ordinance in violation of Section 26, Article VI of the 1987
Constitution, which provides that every bill passed by Congress shall embrace only
one subject which shall be expressed in the title thereof.
Also pointed out by the petitioners is a specific procedure outlined in Ordinance
No. 8119 that should be observed when amending the zoning ordinance. This is
provided for under Section 81 thereof, which reads:
SEC. 81. Amendments to the Zoning Ordinance. The proposed amendments to
the Zoning Ordinance asreviewed and evaluated by the City Planning and
Development Office (CPDO)shall be submitted to the City Council for approval of
the majority of the Sangguniang Panlungsod members. The amendments shall be
acceptable and eventually approved: PROVIDED, That there is sufficient evidence
and justification for such proposal; PROVIDED FURTHER,That such proposal is
consistent with the development goals, planning objectives, and strategies of the
Manila Comprehensive Land Use Plan. Said amendments shall take effect
immediately upon approval or after thirty (30) days from application.
Petitioners thus pray that:
1. upon filing of [the] petition, [the] case be referred to the Court [E]n Banc, and
setting (sic) the case for oral argument;
2. upon the filing of [the] petition, a temporary restraining order be issued enjoining
the respondents from publishing and posting Manila City Ordinance No. 8187
and/or posting of Manila City Ordinance No. 8187; and/or taking any steps to
implementing (sic) and/or enforce the same and after due hearing, the temporary
restraining order be converted to a permanent injunction;
3. x x x Manila City Ordinance 8187 [be declared] as null and void for being
repugnant to the Constitution and existing municipal laws and international
covenants;
4. x x x the respondents [be ordered] to refrain from enforcing and/or
implementing Manila City Ordinance No. 8187;
5. x x x respondent City Mayor Alfredo S. Lim [be enjoined] from issuing any
permits (business or otherwise) to all industries whose allowable uses are anchored
under the provisions of Manila Ordinance No. 8187; and
6. x x x respondent Mayor of Manila Alfredo S. Lim [be ordered] to comply with
the Order of the Honorable Court in G.R. 156052 dated February 13, 2008.60
The Respondents’ Position on the Consolidated Petitions
Respondent former Mayor Lim
In his Memorandum,61 former Mayor Lim, through the City Legal Officer, attacks
the petitioners’ lack of legal standing to sue. He likewise points out that the
petitioners failed to observe the principle of hierarchy of courts.
Maintaining that Ordinance No. 8187 is valid and constitutional, he expounds on
the following arguments:
On the procedural issues, he contends that: (1) it is the function of the Sangguniang
Panlungsod to enact zoning ordinances, for which reason, it may proceed to amend
or repeal Ordinance No. 8119 without prior referral to the Manila Zoning Board of
Adjustment and Appeals (MZBAA) as prescribed under Section 80 (Procedure for
Re-Zoning) and the City Planning and Development Office (CPDO) pursuant to
Section 81 (Amendments to the Zoning Ordinance) of Ordinance No. 8119,
especially when the action actually originated from the Sangguniang Panlungsod
itself; (2) the Sangguniang Panlungsod may, in the later ordinance, expressly repeal
all or part of the zoning ordinance sought to be modified; and (3) the provision
repealing Section 23 of Ordinance No. 8119 is not violative of Section 26, Article
VI of the 1987 Constitution, which requires that every bill must embrace only one
subject and that such shall be expressed in the title.
On the substantive issues, he posits that the petitions are based on unfounded
fears; that the assailed ordinance is a valid exercise of police power; that it is
consistent with the general welfare clause and public policy, and is not
unreasonable; that it does not run contrary to the Constitution, municipal laws, and
international conventions; and that the petitioners failed to overcome the
presumption of validity of the assailed ordinance.
Respondents Vice-Mayor Domagoso and the City Councilors who voted in favor
of the assailed ordinance
On 14 September 2012, after the Court gave the respondents several chances to
submit their Memorandum,62 they, through the Secretary of the Sangguniang
Panlungsod, prayed that the Court dispense with the filing thereof.
In their Comment,63 however, respondents offered a position essentially similar to
those proffered by former Mayor Lim.
The Intervenors’ Position on the Consolidated Petitions
On the other hand, the oil companies sought the outright dismissal of the petitions
based on alleged procedural infirmities, among others, incomplete requisites of
judicial review, violation of the principle of hierarchy of courts, improper remedy,
submission of a defective verification and certification against forum shopping, and
forum shopping.
As to the substantive issues, they maintain, among others, that the assailed
ordinance is constitutional and valid; that the Sangguniang Panlalawigan is in the
best position to determine the needs of its constituents; that it is a valid exercise of
legislative power; that it does not violate health and environment-related provisions
of the Constitution, laws, and international conventions and treaties to which the
Philippines is a party; that the oil depots are not likely targets of terrorists; that the
scaling down of the operations in Pandacan pursuant to the MOU has been
30
followed; and that the people are safe in view of the safety measures installed in the
Pandacan terminals.
Incidentally, in its Manifestation dated 30 November 2010,64 Petron informed the
Court that it will "cease [the] operation of its petroleum product storage
facilities"65 in the Pandacan oil terminal not later than January 2016 on account of
the following:
2.01 Environmental issues, many of which are unfounded, continually crop up and
tarnish the Company’s image.
2.02. The location of its Pandacanterminal is continually threatened, and made
uncertain preventing long-term planning, by the changing local government
composition. Indeed, the relevant zoning ordinances have been amended three (3)
times, and their validity subjected to litigation.66
Intervening Events
On 28 August 2012, while the Court was awaiting the submission of the
Memorandum of respondents Vice-Mayor Domagoso and the councilors who
voted in favor of the assailed Ordinance, the Sangguniang Panlungsod, which
composition had already substantially changed, enacted Ordinance No. 828367
entitled "AN ORDINANCE AMENDING SECTION 2 OF ORDINANCE NO.
8187 BY RECLASSIFYING THE AREA WHERE PETROLEUM REFINERIES
AND OIL DEPOTS ARE LOCATED FROM HEAVY INDUSTRIAL (1-3) TO
HIGH INTENSITY COMMERCIAL/MIXED USE ZONE (C3/MXD).
The new ordinance essentially amended the assailed ordinance to exclude the area
where petroleum refineries and oil depots are located from the Industrial Zone.
Ordinance No. 8283 thus permits the operation of the industries operating within
the Industrial Zone. However, the oil companies, whose oil depots are located in
the High Intensity Commercial/Mixed Use Zone (C3/MXD), are given until the
end of January 2016 within which to relocate their terminals.
Former Mayor Lim, who was then the incumbent mayor, did not support the
amendment. Maintaining that the removal of the oil depots was prejudicial to public
welfare, and, on account of the pending cases in the Supreme Court, he vetoed
Ordinance No. 8283 on 11 September 2012.68
On 28 November 2012, former Mayor Lim filed a Manifestation informing this
Court that the Sangguniang Panlungsod voted to override the veto, and that he, in
turn, returned it again with his veto. He likewise directed the Sangguniang
Panlungsod to append his written reasons for his veto of the Ordinance, so that the
same will be forwarded to the President for his consideration in the event that his
veto is overridden again.69
On 11 December 2012, Shell also filed a similar Manifestation.70
Meanwhile, three days after former Mayor Lim vetoed the new ordinance, Atty.
Luch R. Gempis, Jr. (Atty. Gempis), Secretary of the Sangguniang Panlungsod,
writing on behalf of respondents Vice-Mayor Domagoso and the City Councilors
of Manila who voted in favor of the assailed Ordinance, finally complied with this
Court’s Resolution dated 17 July 2012 reiterating its earlier directives71 to submit
the said respondents’ Memorandum.
In his Compliance/Explanation with Urgent Manifestation72 dated 13 September
2012, Atty. Gempis explained that it was not his intention to show disrespect to this
Court or to delay or prejudice the disposition of the cases.
According to him, he signed the Comment prepared by respondents Vice-Mayor
and the City Councilors only to attest that the pleading was personally signed by the
respondents. He clarified that he was not designated as the legal counsel of the
respondents as, in fact, he was of the impression that, pursuant to Section 481(b)(3)
of the Local Government Code,73 it is the City Legal Officer who isauthorized to
represent the local government unit or any official thereof in a litigation. It was for
the same reason that he thought that the filing of a Memorandum may already be
dispensed with when the City Legal Officer filed its own on 8 February 2010. He
further explained that the Ordinance subject of these cases was passed during the
7th Council (2007-2010); that the composition of the 8th Council (2010-2013) had
already changed after the 2010 elections; and that steps were already taken to
amend the ordinance again. Hence, he was in a dilemma as to the position of the
Sangguniang Panlungsod at the time he received the Court’s Resolution of 31 May
2011.
Atty. Gempis, thus, prayed that the Court dispense with the filing of the required
memorandum in view of the passing of Ordinance No. 8283.
Issue
The petitioners’ arguments are primarily anchored on the ruling of the Court in G.
R. No. 156052 declaring Ordinance No. 8027 constitutional and valid after finding
that the presence of the oil terminals in Pandacan is a threat to the life and security
of the people of Manila. From thence, the petitioners enumerated constitutional
provisions, municipal laws and international treaties and conventions on health and
environment protection allegedly violated by the enactment of the assailed
Ordinance to support their position.
The resolution of the present controversy is, thus, confined to the determination of
whether or not the enactment of the assailed Ordinance allowing the continued stay
of the oil companies in the depots is, indeed, invalid and unconstitutional.
Our Ruling
We see no reason why Ordinance No. 8187 should not be stricken down insofar as
the presence of the oil depots in Pandacan is concerned.
I criminal and special civil actions before the Metropolitan Trial Courts, Municipal
We first rule on the procedural issues raised by the respondents and the oil
companies.
At the outset, let it be emphasized that the Court, in G.R. No. 156052, has already
pronounced that the matter of whether or not the oil depots should remain in the
Pandacan area is of transcendental importance to the residents of Manila.74
We may, thus, brush aside procedural infirmities, if any, as we had in the past, and
take cognizance of the cases75 if only to determine if the acts complained of are no
longer within the bounds of the Constitution and the laws in place.76
Put otherwise, there can be no valid objection to this Court’s discretion to waive
one or some procedural requirements if only to remove any impediment to address
and resolve the serious constitutional question77 raised in these petitions of
transcendental importance, the same having farreaching implications insofar as the
safety and general welfare of the residents of Manila, and even its neighboring
communities, are concerned.
Proper Remedy
Respondents and intervenors argue that the petitions should be outrightly
dismissed for failure on the part of the petitioners to properly apply related
provisions of the Constitution, the Rules of Court, and/or the Rules of Procedure
for Environmental Cases relative to the appropriate remedy available to them.
To begin with, questioned is the applicability of Rule 6578 of the Rules of Court to
assail the validity and constitutionality of the Ordinance.
… there is no appeal, or any plain,
speedy, and adequate remedy
in the ordinary course of law…
Rule 65 specifically requires that the remedy may be availed of only when "there is
no appeal, or any plain, speedy, and adequate remedy in the ordinary course of
law."79
Shell argues that the petitioners should have sought recourse before the first and
second level courts under the Rules of Procedure for Environmental Cases,80
which govern "the enforcement or violations of environmental and other related
laws, rules and regulations."81 Petron additionally submits that the most adequate
remedy available to petitioners is to have the assailed ordinance repealed by the
Sangguniang Panlungsod. In the alternative, a local referendum may be had. And,
assuming that there were laws violated, the petitioners may file an action for each
alleged violation of law against the particular individuals that transgressed the law.
It would appear, however, that the remedies identified by the intervenors prove to
be inadequate toresolve the present controversies in their entirety owing to the
intricacies of the circumstances herein prevailing.
The scope of the Rules of Procedure for Environmental Cases is embodied in Sec.
2, Part I, Rule I thereof. It states that the Rules shall govern the procedure in civil,
Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts,
and the Regional Trial Courts involving enforcement or violations of environmental
and other related laws, rules and regulations such as but not limited to the
following:
(k) R.A. No. 6969, Toxic Substances and Hazardous Waste Act;
xxxx
(r) R.A. No. 8749, Clean Air Act;
xxxx
31
(y) Provisions in C.A. No. 141, x x x; and other existing laws that relate to the
conservation, development, preservation, protection and utilization of the
environment and natural resources.82 (Emphasis supplied)
Notably, the aforesaid Rules are limited in scope. While, indeed, there are
allegations of violations of environmental laws in the petitions, these only serve as
collateral attacks that would support the other position of the petitioners – the
protection of the rightto life, security and safety. Moreover, it bears emphasis that
the promulgation of the said Rules was specifically intended to meet the following
objectives:
SEC. 3. Objectives.—The objectives of these Rules are:
(a) To protect and advance the constitutional right of the people to a balanced and
healthful ecology;
(b) To provide a simplified, speedy and inexpensive procedure for the enforcement
of environmental rights and duties recognized under the Constitution, existing laws,
rules and regulations, and international agreements;
(c) To introduce and adopt innovations and best practices ensuring the effective
enforcement of remedies and redress for violation of environmental laws; and
(d) To enable the courts to monitor and exact compliance with orders and
judgments in environmental cases.83
Surely, the instant petitions are not within the contemplation of these Rules.
Relative to the position of Petron, it failed to consider that these petitions are
already a sequel to G.R. No. 156052, and that there are some issues herein raised
that the remedies available at the level of the Sangguniang Panlungsod could not
address. Neither could the filing of an individual action for each law violated be
harmonized with the essence of a "plain, speedy, and adequate" remedy.
From another perspective, Shell finds fault with the petitioners’ direct recourse to
this Court when, pursuant to Section 5, Article VIII of the Constitution, the
Supreme Court exercises only appellate jurisdiction over cases involving the
constitutionality or validity of an ordinance.84 Thus:
Section 5.The Supreme Court shall have the following powers:
xxxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or
the Rules of Court may provide, final judgments and orders of lower courtsin:
a. All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question. (Emphasis supplied)
To further support its position, it cites the case of Liga ng mga Barangay National
v. City Mayor of Manila,85 where the petitioners sought the nullification of the
mayor’s executive order and the council’s ordinance concerning certain functions of
the petitioners that are vested in them by law. There, the Court held:
Second, although the instant petition is styled as a petition for certiorari, in essence,
it seeks the declaration by this Court of the unconstitutionality or illegality of the
questioned ordinance and executive order. It, thus, partakes of the nature of a
petition for declaratory relief over which this Court has only appellate, not original,
jurisdiction.86 Section 5, Article VIII of the Constitution provides: x x x
As such, this petition must necessary fail, as this Court does not have original
jurisdiction over a petition for declaratory relief even if only questions of law are
involved.87
Assuming that a petition for declaratory relief is the proper remedy, and that the
petitions should have been filed with the Regional Trial Court, we have, time and
again, resolved to treat such a petition as one for prohibition, provided that the case
has far-reaching implications and transcendental issues that need to be resolved,88
as in these present petitions.
On a related issue, we initially found convincing the argument that the petitions
should have been filed with the Regional Trial Court, it having concurrent
jurisdiction with this Court over a special civil action for prohibition, and original
jurisdiction over petitions for declaratory relief. However, as we have repeatedly
said, the petitions at bar are of transcendental importance warranting a relaxation of
the doctrine of hierarchy of courts.89 In the case of Jaworski v. PAGCOR,90 the
Court ratiocinated:
Granting arguendothat the present action cannot be properly treated as a petition
for prohibition, the transcendental importance of the issues involved in this case
warrants that weset aside the technical defects and take primary jurisdiction over
the petition at bar. x x x This is in accordance with the well-entrenched principle
that rules of procedure are not inflexible tools designed to hinder or delay, but to
facilitate and promote the administration of justice.Their strict and rigid application,
which would result in technicalities that tend to frustrate, rather than promote
substantial justice, must always be eschewed. (Emphasis supplied)
…persons aggrieved thereby…
As to who may file a petition for certiorari, prohibition or mandamus, Petron posits
that petitioners are not among the "persons aggrieved" contemplated under
Sections 1 to 3 of Rule 65 of the Rules of Court.
Chevron argues that petitioners, whether as "citizens," taxpayers," or legislators,"
lack the legal standing toassail the validity and constitutionality of Ordinance No.
8187. It further claims that petitioners failed to show that they have suffered any
injury and/or threatened injury as a result of the act complained of.91
Shell also points out that the petitions cannot be considered taxpayers’ suit, for
then, there should be a claim that public funds were illegally disbursed and that
petitioners have sufficient interest concerning the prevention of illegal expenditure
of public money.92 In G.R. No. 187916, Shell maintains that the petitioners failed
to show their personal interest in the case and/or to establish that they may
represent the general sentiments of the constituents of the City of Manila so as to
be treated as a class suit. Even the minors, it argues, are not numerous and
representative enough for the petition to be treated as a class suit. Asto the city
councilors who joined the petitioners in assailing the validity of Ordinance No.
8187, Shell posits that they cannot invoke the ruling in Prof. David v. Pres.
Macapagal-Arroyo,93 where the Court held that legislators may question the
constitutionality of a statute, if and when it infringes upon their prerogatives as
legislators, because of the absence of the allegation that the assailed ordinance
indeed infringes upon their prerogatives.
Former Mayor Lim submitted a similar position supported by a number of cases on
the concept of locus standi,94 the direct injury test,95 an outline of the stringent
requirements of legal standing when suing as a citizen,96 as a taxpayer,97 as a
legislator and in cases where class suits are filed in behalf of all citizens.98
Their arguments are misplaced.
In G.R. No. 156052, we ruled that the petitioners in that case have a legal right to
seek the enforcement of Ordinance No. 8027 because the subject of the petition
concerns a public right, and they, as residents of Manila, have a direct interest in the
implementation of the ordinances of the city. Thus:
To support the assertion that petitioners have a clear legal right to the enforcement
of the ordinance, petitioner SJS states that it is a political party registered with the
Commission on Elections and has its offices in Manila. It claims to have many
members who are residents of Manila. The other petitioners, Cabigao and
Tumbokon, are allegedly residents of Manila.
We need not belabor this point. We have ruled in previous cases that when a
mandamus proceeding concerns a public right and its object is to compel a public
duty, the people who are interested in the execution of the laws are regarded as the
real parties in interest and they need not show any specific interest. Besides, as
residents of Manila, petitioners have a direct interest in the enforcement of the
city’s ordinances.99 x x x (Citations omitted)
No different are herein petitioners who seek to prohibit the enforcement of the
assailed ordinance, and who deal with the same subject matter that concerns a
public right. Necessarily, the people who are interested in the nullification of such
an ordinance are themselves the real parties in interest, for which reason, they are
no longer required to show any specific interest therein. Moreover, it is worth
mentioning that SJS, now represented by SJS Officer Alcantara, has been
recognized by the Court in G.R. No. 156052 to have legal standing to sue in
connection with the same subject matter herein considered. The rest of the
petitioners are residents of Manila. Hence, all of them have a direct interest in the
prohibition proceedings against the enforcement of the assailed ordinance.
In the case of Initiatives for Dialogue and Empowerment through Alternative Legal
Services, Inc. (IDEALS, INC.) v. Power Sector Assets and Liabilities Management
Corporation (PSALM),100 involving a petition for certiorari and prohibition to
permanently enjoin PSALM from selling the Angat Hydro-Electric Power Plant
(AHEPP) to Korea Water Resources Corporation (K-Water), the Court ruled:
"Legal standing" or locus standihas been defined as a personal and substantial
interest in the case such that the party has sustained or will sustain direct injury as a
result of the governmental act that is being challenged, alleging more than a
generalized grievance. x x x This Court, however, has adopted a liberal attitude on
the locus standi of a petitioner where the petitioner is able to craft anissue of
transcendental significance to the people, as when the issues raised are of
paramount importance to the public. Thus, when the proceeding involves the
assertion of a public right, the mere fact that the petitioner is a citizen satisfies the
requirement of personal interest.
32
There can be no doubt that the matter of ensuring adequate water supply for
domestic use is one of paramount importance to the public. That the continued
availability of potable water in Metro Manila might be compromised if PSALM
proceeds with the privatization of the hydroelectric power plant in the Angat Dam
Complex confers upon petitioners such personal stake in the resolution of legal
issues in a petition to stop its implementation.101 (Emphasis supplied; citations
omitted)
In like manner, the preservation of the life, security and safety of the people is
indisputably a right of utmost importance to the public. Certainly, the petitioners, as
residents of Manila, have the required personal interest to seek relief from this
Court to protect such right.
… in excess of its or his jurisdiction,
or with grave abuse of discretion
amounting to lack or excess of jurisdiction…
Petron takes issue with the alleged failure of the petitioners to establish the facts
with certainty that would show that the acts of the respondents fall within the
parameters of the grave abuse of discretion clause settled by jurisprudence, to wit:
x x x "[G]rave abuse of discretion" means such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be
grave as where the power is exercised in an arbitrary or despotic manner by reason
of passion or personal hostility and must be so patent and gross asto amount to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to
act all in contemplation of law.102
It is pointless to discuss the matter at length in these instant cases of transcendental
importance in view of the Court’s pronouncement, in Magallona v. Ermita.103
There it held that the writs of certiorariand prohibition are proper remedies to test
the constitutionality of statutes, notwithstanding the following defects:
In praying for the dismissal of the petition on preliminary grounds, respondents
seek a strict observance of the offices of the writs of certiorari and prohibition,
noting that the writs cannot issue absent any showing of grave abuse of discretion
in the exercise of judicial, quasi-judicial or ministerial powers on the part of
respondents and resulting prejudice on the part of petitioners.
Respondents’ submission holds true in ordinary civil proceedings. When this Court
exercises its constitutional power of judicial review, however, we have, by tradition,
viewed the writs of certiorariand prohibition as proper remedial vehicles to test the
constitutionality of statutes, and indeed, of acts of other branches of government.
Issues of constitutional importx x x carry such relevance in the life of this nation
that the Court inevitably finds itself constrained to take cognizance of the case and
pass upon the issues raised, noncompliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such law.104
(Emphasis supplied; citations omitted)
Requisites of judicial review
For a valid exercise of the power of judicial review, the following requisites shall
concur: (1) the existence of a legal controversy; (2) legal standing to sue of the party
raising the constitutional question; (3) a plea that judicial review be exercised at the
earliest opportunity; and (4) the constitutional question is the lis mota of the
case.105
Only the first two requisites are put in issue in these cases.
On the matter of the existence of a legal controversy, we reject the contention that
the petitions consist of bare allegations based on speculations, surmises, conjectures
and hypothetical grounds.
The Court declared Ordinance No. 8027 valid and constitutional and ordered its
implementation. Withthe passing of the new ordinance containing the contrary
provisions, it cannot be any clearer that here lies an actual case or controversy for
judicial review. The allegation on this, alone, is sufficient for the purpose.
The second requisite has already been exhaustively discussed.
Proof of identification required in the notarization
of the verification and certification against forum
shopping in G.R. No. 187916
At the bottom of the Verification and Certification against Forum Shopping of the
petition in G.R. No. 187916 is the statement of the notary public to the effect that
the affiant, in his presence and after presenting "an integrally competent proof of
identification with signature and photograph,"106 signed the document under oath.
Citing Sec. 163 of the Local Government Code,107 which provides that an
individual acknowledging any document before a notary public shall present his
Community Tax Certificate (CTC), Chevron posits that the petitioner’s failure to
present his CTC rendered the petition fatally defective warranting the outright
dismissal of the petition.
We disagree.
The verification and certification against forum shopping are governed specifically
by Sections 4 and 5,Rule 7 of the Rules of Court.
Section 4 provides that a pleading, when required to be verified, shall be treated as
an unsigned pleading if it lacks a proper verification while Section 5 requires that
the certification to be executed by the plaintiff or principal party be under oath.
These sections, in turn, should be read together with Sections 6 and 12, Rule 2 of
the 2004 Rules on Notarial Practice.
Section 6108 of the latter Rules, specifically, likewise provides that any competent
evidence of identity specified under Section 12 thereof may now be presented
before the notary public, to wit:
SEC. 12. Competent Evidence of Identity. - The phrase "competent evidence of
identity" refers to the identification of an individual based on:
(a) at least one current identification document issued by an official agency bearing
the photograph and signature of the individual, such as but not limited to passport,
driver’s license, Professional Regulations Commission ID, National Bureau of
Investigation clearance, police clearance, postal ID, voter’s ID, Barangay
certification, Government Service and Insurance System (GSIS) e-card, Social
Security System (SSS) card, Philhealth card, senior citizen card, Overseas Workers
Welfare Administration (OWWA) ID, OFW ID, seaman’s book, alien certificate of
registration/immigrant certificate of registration, government office ID,
certification from the National Council for the Welfare of Disable Persons
(NCWDP), Department of Social Welfare and Development (DSWD) certification;
or
(b) x x x.109
Forum shopping
Shell contends that the petitioners in G.R. No. 187836 violated the rule against
forum shopping allegedly because all the elements thereof are present in relation to
G.R. No. 156052, to wit:
1. "identity of parties, or at least such parties who represent the same interests in
both actions" – According to Shell, the interest of petitioner SJS in G.R. No.
156052 and the officers of SJS in G.R. No. 187836 are clearly the same. Moreover,
both actions implead the incumbent mayor of the City of Manila as respondent.
Both then respondent Mayor Atienza in G.R. No. 156052 and respondent former
Mayor Lim in G.R. No. 187836 are sued in their capacity as Manila mayor.
2. "identity of rights asserted and relief prayed for, the relief being founded on the
same fact(s)" – Shell contends that, in both actions, petitioners assert the same
rights to health and to a balanced and healthful ecology relative to the fate of the
Pandacan terminal, and seek essentially the same reliefs, that is, the removal of the
oil depots from the present site.
3. "the identity of the two preceding particulars is such that any judgment rendered
in the pending case, regardless of which party is successful, would amount to res
judicata in the other" – Relative to the filing of the Manifestation and Motion to: a)
Stop the City Council of Manila from further hearing the amending ordinance to
Ordinance No. 8027 x x x (Manifestation and Motion) and Very Urgent Motion to
Stop the Mayor of the City of Manila from Signing Draft Ordinance No. 7177 [now
Ordinance No. 8187] and to Cite Him for Contempt if He Would Do So (Urgent
Motion) both in G.R. No. 156052, Shell points out the possibility that the Court
would have rendered conflicting rulings "on cases involving the same facts, parties,
issues and reliefs prayed for."110
We are not persuaded.
In Spouses Cruz v. Spouses Caraos,111 the Court expounded on the nature of
forum shopping. Thus:
Forum shopping is an act of a party, against whom an adverse judgment or order
has been rendered in one forum, of seeking and possibly getting a favorable
opinion in another forum, other than by appeal or special civil action for certiorari.
It may also be the institution of two or more actions or proceedings grounded on
the same cause on the supposition that one or the other court would make a
favorable disposition. The established rule is that for forum shopping to exist, both
actions must involve the same transactions, same essential facts and circumstances
and must raise identical causes of actions, subject matter, and issues. x x x112
(Citations omitted) It bears to stress that the present petitions were initially filed,
not to secure a judgment adverse to the first decision, but, precisely, to enforce the
earlier ruling to relocate the oil depots from the Pandacan area.
As to the matter of the denial of the petitioners’ Manifestation and Urgent Motion
in G.R. No. 156052, which wereboth incidental to the enforcement of the decision
favorable to them brought about by the intervening events after the judgment had
33
become final and executory, and which involve the same Ordinance assailed in
these petitions, we so hold that the filing of the instant petitions is not barred by res
judicata.
In the same case of Spouses Cruz v. Spouses Caraos involving the refiling of a
complaint, which had been earlier dismissed without qualification that the dismissal
was with prejudice, and which had not been decided on the merits, the Court
declared that such re-filing did not amount to forum shopping. It ratiocinated:
It is not controverted that the allegations of the respective complaints in both Civil
Case No. 95-1387 and Civil Case No. 96-0225 are similarly worded, and are
identical in all relevant details, including typographical errors, except for the
additional allegations in support of respondents’ prayer for the issuance of
preliminary injunction in Civil Case No. 95-1387. It is similarly not disputed that
both actions involve the same transactions; same essential facts and circumstances;
and raise identical causes of actions, subject matter, and issues.
xxxx
x x x The dismissal of Civil Case No. 95-1387 was without prejudice. Indeed, the
Order dated 20 November 1995, dismissing Civil Case No. 95-1387 was an
unqualified dismissal. More significantly, its dismissal was not based on grounds
under paragraphs (f), (h), and (i) of Section 1 of Rule 16 of the Rules of Court,
which dismissal shall bar the refiling of the same action or claim as crystallized in
Section 5 of Rule 16 thereof, thus:
SEC. 5. Effect of dismissal. – Subject to the right of appeal, an order granting a
motion to dismiss based on paragraphs (f), (h), and (i) of section 1 hereof shall bar
the refiling of the same action or claim.
From the foregoing, it is clear that dismissals under paragraphs (f), (h), and (i) of
Section 1 of Rule 16 of the Rules of Court constitute res judicata, to wit:
(f) That the cause of action isbarred by a prior judgment or by the statute of
limitations;
xxxx
(h) That the claim or demand set forth in the plaintiff’s pleading has been paid,
waived, abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable under the
provisions of the statute of frauds.
Res judicata or bar by prior judgmentis a doctrine which holds that a matter that
has been adjudicated by a court of competent jurisdiction must be deemed to have
been finally and conclusively settled if it arises in any subsequent litigation between
the same parties and for the same cause. Res judicata exists when the following
elements are present: (a) the former judgment must be final; (b) the court which
rendered judgment had jurisdiction over the parties and the subject matter; (3)it
must be a judgment on the merits; and (d) and there must be, between the first and
second actions, identity ofparties, subject matter, and cause of action.113
(Emphasis supplied; citations omitted)
Here, it should be noted that this Court denied the said Manifestation and Urgent
Motion, and refused to act on the succeeding pleadings, for being moot.114 Clearly,
the merits of the motion were not considered by the Court. The following
disquisition of the Court in Spouses Cruz v. Spouses Caraosis further enlightening:
The judgment of dismissal in Civil Case No. 95-1387 does not constitute res
judicata to sufficiently bar the refiling thereof in Civil Case No. 96-0225. As earlier
underscored, the dismissal was one without prejudice. Verily, it was not a judgment
on the merits. It bears reiterating that a judgment on the merits is one rendered
after a determination of which party is right, as distinguished from a judgment
rendered upon some preliminary or formal or merely technical point. The dismissal
of the case without prejudice indicates the absence of a decision on the merits and
leaves the parties free to litigate the matter in a subsequent action asthough the
dismissed action had not been commenced.115 (Emphasis supplied; citations
omitted)
Considering that there is definitely no forum shopping in the instant cases, we need
not discuss in detail the elements of forum shopping.
II
The Local Government Code of 1991 expressly provides that the Sangguniang
Panlungsod is vested with the power to "reclassify land within the jurisdiction of
the city"116 subject to the pertinent provisions of the Code. It is also settled that an
ordinance may be modified or repealed by another ordinance.117 These have been
properly applied in G.R. No. 156052, where the Court upheld the position of the
Sangguniang Panlungsod to reclassify the land subject of the Ordinance,118 and
declared that the mayor has the duty to enforce Ordinance No. 8027, provided that
it has not been repealed by the Sangguniang Panlungsod or otherwise annulled by
the courts.119 In the same case, the Court also used the principle that the
Sanguniang Panlungsod is in the best position to determine the needs of its
Constituents120 – that the removal of the oil depots from the Pandacan area is
necessary "to protect the residents of Manila from catastrophic devastation in case
of a terrorist attack on the Pandacan Terminals."121
Do all these principles equally apply to the cases at bar involving the same subject
matter to justify the contrary provisions of the assailed Ordinance?
We answer in the negative.
We summarize the position of the Sangguniang Panlungsodon the matter subject of
these petitions. In 2001, the Sanggunian found the relocation of the Pandacan oil
depots necessary. Hence, the enactment of Ordinance No. 8027.
In 2009, when the composition of the Sanggunian had already changed, Ordinance
No. 8187 was passed in favor of the retention of the oil depots. In 2012, again
when some of the previous members were no longer re-elected, but with the Vice-
Mayor still holding the same seat, and pending the resolution of these petitions,
Ordinance No. 8283 was enacted to give the oil depots until the end of January
2016 within which to transfer to another site. Former Mayor Lim stood his
groundand vetoed the last ordinance.
In its Comment, the 7th Council (2007-2010) alleged that the assailed Ordinance
was enacted to alleviate the economic condition of its constituents.122
Expressing the same position, former Mayor Lim even went to the extent of
detailing the steps123 he took prior to the signing of the Ordinance, if only to show
his honest intention to make the right decision.
The fact remains, however, that notwithstanding that the conditions with respect to
the operations of the oil depots existing prior to the enactment of Ordinance No.
8027 do not substantially differ to this day, as would later be discussed, the position
of the Sangguniang Panlungsod on the matter has thrice changed, largely depending
on the new composition of the council and/or political affiliations. The foregoing,
thus, shows that its determination of the "general welfare" of the city does not after
all gear towards the protection of the people in its true sense and meaning, but is,
one way or another, dependent on the personal preference of the members who sit
in the council as to which particular sector among its constituents it wishes to favor.
Now that the City of Manila, through the mayor and the city councilors, has
changed its view on the matter, favoring the city’s economic related benefits,
through the continued stay of the oil terminals, over the protection of the very lives
and safety of its constituents, it is imperative for this Court to make a final
determination on the basis of the facts on the table as to which specific right of the
inhabitants of Manila should prevail. For, in this present controversy, history
reveals that there is truly no such thing as "the will of Manila" insofar as the general
welfare of the people is concerned.
If in sacrilege, in free translation of Angara124 by Justice Laurel, we say when the
judiciary mediates we do notin reality nullify or invalidate an act of the Manila
Sangguniang Panlungsod, but only asserts the solemn and sacred obligation
assigned to the Court by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them.
III
The measures taken by the intervenors to lend support to their position that Manila
is now safe despite the presence of the oil terminals remain ineffective. These have
not completely removed the threat to the lives of the in habitants of Manila.
In G.R. No. 156052, the validity and constitutionality of Ordinance No. 8027 was
declared as a guarantee for the protection of the constitutional right to life of the
residents of Manila. There, the Court said that the enactment of the said ordinance
was a valid exercise of police power with the concurrence of the two requisites: a
lawful subject – "to safeguard the rights to life, security and safety of all the
inhabitants of Manila;"125 and a lawful method – the enactment of Ordinance No.
8027 reclassifying the land use from industrial to commercial, which effectively
ends the continued stay of the oil depots in Pandacan.126
In the present petitions, the respondents and the oil companies plead that the
Pandacan Terminal has never been one of the targets of terrorist attacks;127 that
the petitions were based on unfounded fears and mere conjectures;128 and that the
possibility that it would be picked by the terrorists is nil given the security measures
installed thereat.129
The intervenors went on to identify the measures taken to ensure the safety of the
people even with the presence of the Pandacan Terminals. Thus:
1. Chevron claims that it, together with Shell and Petron, continues to enhance the
safety and security features of the terminals. They likewise adopt fire and product
spill prevention measures in accordance with the local standards set by the Bureau
of Fire Protection, among others, and with the international standards of the
American Petroleum Industry ("API") and the National Fire Prevention and Safety
34
Association ("NFPSA"); that since 1914, the oil depots had not experienced "any
incident beyond the ordinary risks and expectations"130 of the residents of Manila;
and that it received a passing grade on the safety measures they installed in the
facilities from the representatives of the City of Manila who conducted an ocular
inspection on 22 May 2009; and
2. Referring to the old MOU entered into between the City of Manila and the
DOE, on the one hand, and the oil companies, on the other, where the parties
thereto conceded and acknowledged that the scale-down option for the Pandacan
Terminal operations is the best alternative to the relocation of the terminals, Shell
enumeratesthe steps taken to scale down its operations.
As to the number of main fuel tanks, the entire Pandacan Terminal has already
decommissioned twenty-eight out of sixty-four tanks. Speaking for Shell alone, its
LPG Spheres, which it claims is the only product that may cause explosion, was
part of those decommissioned, thereby allegedly removing the danger of explosion.
Safety buffer zones and linear/green parks were likewise created to separate the
terminal from the nearest residential area. Shell’s portion of the oil depot is likewise
allegedly equipped with the latest technology to ensure air-quality control and
waterquality control, and to prevent and cope with possible oil spills with a crisis
management plan in place in the event that an oil spill occurs. Finally, Shell claims
that the recommendations of EQE International in its Quantitative Risk
Assessment (QRA) study, which it says is one of the leading independent risk
assessment providers in the world and largest risk management consultancy, were
sufficiently complied with; and that, on its own initiative, it adopted additional
measures for the purpose, for which reason, "the individual risk level resulting from
any incident occurring from the Pandacan Terminal, per the QRA study, is twenty
(20) times lower compared to the individual risk level of an average working or
domestic environment."131
We are not persuaded.
The issue of whether or not the Pandacan Terminal is not a likely target of terrorist
attacks has already been passed upon in G. R. No. 156052. Based on the assessment
of the Committee on Housing, Resettlement and Urban Development of the City
of Manila and the then position of the Sangguniang Panlungsod,132 the Court was
convinced that the threat of terrorism is imminent. It remains so convinced.
Even assuming that the respondents and intervenors were correct, the very nature
of the depots where millions of liters of highly flammable and highly volatile
products, regardless of whether ornot the composition may cause explosions, has
no place in a densely populated area. Surely, any untoward incident in the oil
depots, beit related to terrorism of whatever origin or otherwise, would definitely
cause not only destruction to properties within and among the neighboring
communities but certainly mass deaths and injuries.
With regard to the scaling down of the operations in the Pandacan Terminals,
which the oil companies continue to insist to have been validated and recognized
by the MOU, the Court,in G.R. No. 156052, has already put this issue to rest. It
specifically declared that even assuming that the terms of the MOU and Ordinance
No. 8027 were inconsistent, the resolutions ratifying the MOU gave it full force and
effect only until 30 April 2003.133
The steps taken by the oil companies, therefore, remain insufficient to convince the
Court that the dangers posed by the presence of the terminals in a thickly populated
area have already been completely removed.
For, given that the threat sought to be prevented may strike at one point or
another, no matter how remote it is as perceived by one or some, we cannot allow
the right to life to bedependent on the unlikelihood of an event. Statistics and
theories of probability have no place in situations where the very life of not just an
individual but of residents of big neighborhoods is at stake.
IV
It is the removal of the danger to life not the mere subdual of risk of catastrophe,
that we saw in and made us favor Ordinance No. 8027. That reason, unaffected by
Ordinance No. 8187, compels the affirmance of our Decision in G.R. No. 156052.
In striking down the contrary provisions of the assailed Ordinance relative to the
continued stay of the oil depots, we follow the same line of reasoning used in G.R.
No. 156052, to wit: Ordinance No. 8027 was enacted "for the purpose of
promoting sound urban planning, ensuring health, public safety and general
welfare" of the residents of Manila. The Sanggunian was impelled to take measures
to protect the residents of Manila from catastrophic devastation in case of a
terrorist attack on the Pandacan Terminals. Towards this objective, the Sanggunian
reclassified the area defined in the ordinance from industrial to commercial.
The following facts were found by the Committee on Housing, Resettlement and
Urban Development of the City of Manila which recommended the approval of the
ordinance:
(1) the depot facilities contained 313.5 million liters of highly flammable and highly
volatile products which include petroleum gas, liquefied petroleum gas, aviation
fuel, diesel, gasoline, kerosene and fuel oil among others;
(2) the depot is open to attack through land, water or air;
(3) it is situated in a densely populated place and near Malacañang Palace; and
(4) in case of an explosion or conflagration in the depot, the fire could spread to the
neighboring communities.
The ordinance was intended to safeguard the rights to life, security and safety of all
the inhabitants of Manila and not just of a particular class. The depot is perceived,
rightly or wrongly, as a representation of western interests which means that it is a
terrorist target. As long as it (sic) there is such a target in their midst, the residents
of Manila are not safe. It therefore became necessary to remove these terminals to
dissipate the threat. According to respondent:
Such a public need became apparent after the 9/11 incident which showed that
what was perceived to be impossible to happen, to the most powerful country in
the world at that, is actually possible. The destruction of property and the loss of
thousands of lives on that fateful day became the impetus for a public need. Inthe
aftermath of the 9/11 tragedy, the threats of terrorism continued [such] that it
became imperative for governments to take measures to combat their effects.
xxxx
Both law and jurisprudence support the constitutionality and validity of Ordinance
No. 8027. Without a doubt, there are no impediments to its enforcement and
implementation. Any delay is unfair to the inhabitants of the City of Manila and its
leaders who have categorically expressed their desire for the relocation of the
terminals. Their power to chart and control their own destiny and preserve their
lives and safety should not be curtailed by the intervenors’ warnings of doomsday
scenarios and threats of economic disorder if the ordinance is enforced.134
The same best interest of the public guides the present decision. The Pandacan oil
depot remains a terrorist target even if the contents have been lessened. In the
absence of any convincing reason to persuade this Court that the life, security and
safety of the inhabitants of Manila are no longer put at risk by the presence of the
oil depots, we hold that Ordinance No. 8187 in relation to the Pandacan Terminals
is invalid and unconstitutional.
There is, therefore, no need to resolve the rest of the issues.
Neither is it necessary to discuss at length the test of police power against the
assailed ordinance. Suffice it to state that the objective adopted by the Sangguniang
Panlungsod to promote the constituents’ general welfare in terms of economic
benefits cannot override the very basic rights to life, security and safety of the
people.
In. G.R. No. 156052, the Court explained:
Essentially, the oil companies are fighting for their right to property. They allege
that they stand tolose billions of pesos if forced to relocate. However, based on the
hierarchy of constitutionally protected rights, the right to life enjoys precedence
over the right to property. The reason is obvious: life is irreplaceable, property is
not. When the state or LGU’s exercise of police power clashes with a few
individuals’ right to property, the former should prevail.135
We thus conclude with the very final words in G.R. No. 156052:
On Wednesday, January 23, 2008, a defective tanker containing 2,000 liters of
gasoline and 14,000 liters of diesel exploded in the middle of the street a short
distance from the exit gate of the Pandacan Terminals, causing death, extensive
damage and a frightening conflagration in the vicinity of the incident. Need we say
anthing about what will happen if it is the estimated 162 to 211 million liters [or
whatever is left of the 26 tanks] of petroleum products in the terminal complex will
blow up?136
V
As in the prequel case, we note that as early as October 2001, the oil companies
signed a MOA with the DOE obliging themselves to:
... undertake a comprehensive and comparative study ... [which] shall include the
preparation ofa Master Plan, whose aim is to determine the scope and timing of the
feasible location of the Pandacan oil terminals and all associated facilities and
infrastructure including government support essential for the relocation such as the
necessary transportation infrastructure, land and right of way acquisition,
resettlement of displaced residents and environmental and social acceptability
which shall be based on mutual benefit of the Parties and the public.
such that:
35

Now that they are being compelled to discontinue their operations in the Pandacan
Terminals, they cannot feign unreadiness considering that they had years to prepare
for this eventuality.137
On the matter of the details of the relocation, the Court gave the oil companies the
following time frames for compliance:
To ensure the orderly transfer, movement and relocation of assets and personnel,
the intervenors Chevron Philippines Inc., Petron Corporation and Pilipinas Shell
Petroleum Corporation shall, within a nonextendible period of ninety (90) days,
submit to the Regional Trial Court of Manila, Branch 39, the comprehensive plan
and relocation schedule which have allegedly been prepared. The presiding judge of
Manila RTC, Branch 39 will monitor the strict enforcement of this resolution.138
The periods were given in the Decision in G.R. No. 156052 which became final on
23 April 2009. Five years have passed, since then. The years of non-compliance
may be excused by the swing of local legislative leads. We now stay the sway and
begin a final count.
A comprehensive and well-coordinated plan within a specific timeframe shall,
therefore, be observed in the relocation of the Pandacan Terminals. The oil
companies shall begiven a fresh non-extendible period of forty-five (45) days from
notice within which to submit to the Regional Trial Court, Branch 39, Manila an
updated comprehensive plan and relocation schedule. The relocation, inturn, shall
be completed not later than six months from the date of their submission. Finally,
let it be underscored that after the last Manifestation filed by Shell informing this
Court that respondent former Mayor Lim vetoed Ordinance No. 8283 for the
second time, and was anticipating its referral to the President for the latter’s
consideration, nothing was heard from any of the parties until the present petitions
as to the status of the approval or disapproval of the said ordinance. As it is, the
fate of the Pandacan Terminals remains dependent on this final disposition of these
cases.
VI
On the matter of the failure of Atty. Gempis to immediately comply with the
directives of this Court to file the Memorandum for the Vice-Mayor and the city
councilors who voted in favor of the assailed Ordinance, the records do not bear
proof that he received a copy of any of the resolutions pertaining to the filing of the
Memorandum.
A narration of the events from his end would show, however, that he was aware of
the directive issued in 2009 when he stated that "when the City Legal Officer filed
its Memorandum dated 8 February 2010, [he] thought the filing of a Memorandum
for the other respondent city officials could be dispensed with."139 There was also
a categorical admission that he received the later Resolution of 31 May 2011 but
that he could not prepare a Memorandum defending the position of respondents
vice-mayor and the city councilors who voted in favor of Ordinance No. 8187 in
view of the ongoing drafting of Ordinance No. 8283, which would change the
position of the Sanggunian, if subsequently approved.
The reasons he submitted are notimpressed with merit.
That he was not officially designated as the counsel for the vicemayor and the city
councilors is beside the point. As an officer of the court, he cannot feign ignorance
of the fact that"a resolution of this Court is not a mere request but an order which
should be complied with promptly and completely."140 As early as 2009, he should
have immediately responded and filed a Manifestation and therein set forth his
reasons why he cannot represent the vice-mayor and the city councilors. And, even
assuming that the 31 May 2011 Resolution was the first directive he personally
received, he had no valid excuse for disregarding the same. Worse, the Court had to
issue a show cause order before he finally heeded.
Atty. Gempis should "strive harderto live up to his duties of observing and
maintaining the respect dueto the courts, respect for law and for legal processes and
of upholding the integrity and dignity of the legal profession in order to perform his
responsibilities asa lawyer effectively."141
In Sibulo v. Ilagan,142 which involves a lawyer’s repeated failure to comply with
the directives of the Court, the penalty recommended by the Integrated Bar of the
Philippines was reduced from suspension to reprimand and a warning. The Court
ratiocinated:
Considering, however, that respondent was absolved of the administrative charge
against him and is being taken to task for his intransigence and lack of respect, the
Court finds that the penalty of suspension would not be warranted under the
circumstances.
xxxx
To the Court’s mind, a reprimand and a warning are sufficient sanctions for
respondent’s disrespectful actuations directed against the Court and the IBP. The
imposition of these sanctions in the present case would be more consistent with the
avowed purpose of disciplinary case, which is "not so much to punish the
individual attorney as to protect the dispensation of justice by sheltering the
judiciary and the public from the misconduct or inefficiency of officers of the
court."143
We consider the participation of Atty. Gempis in this case and opt to be lenient
even as we reiterate the objective of protecting the dispensation of justice. We
deem it sufficient to remind Atty. Gempis to be more mindful of his duty as a
lawyer towards the Court.
WHEREFORE, in light of all the foregoing, Ordinance No. 8187 is hereby
declared UNCONSTITUTIONAL and INVALID with respect to the continued
stay of the Pandacan Oil Terminals.
The incumbent mayor of the City of Manila is hereby ordered to CEASE and
DESIST from enforcing Ordinance No. 8187.1âwphi1 In coordination with the
appropriate government agencies and the parties herein involved, he is further
ordered to oversee the relocation and transfer of the oil terminals out of the
Pandacan area.
As likewise required in G.R. No. 156052, the intervenors Chevron Philippines, Inc.,
Pilipinas Shell Petroleum Corporation, and Petron Corporation shall, within a non-
extendible period of forty-five (45) days, submit to the Regional Trial Court, Branch
39, Manila an updated comprehensive plan and relocation schedule, which
relocation shall be completed not later than six (6) months from the date the
required documents are submitted. The presiding judge of Branch 39 shall monitor
the strict enforcement of this Decision.
For failure to observe the respect due to the Court, Atty. Luch R. Gempis, Jr.,
Secretary of the Sangguniang Panlungsod, is REMINDED of his duties towards the
Court and WARNED that a repetition of an act similar to that here committed
shall be dealt with more severely.
SO ORDERED.
G.R. No. 210551 June 30, 2015
JOSE J. FERRER, JR., Petitioner,
vs.
CITY MAYOR HERBERT BAUTISTA, CITY COUNCIL OF
QUEZON CITY, CITY TREASURER OF QUEZON CITY, and
CITY ASSESSOR OF QUEZON CITY, Respondents.
DECISION
PERALTA, J.:
Before this Court is a petition for certiorari under Rule 65 of the Rules of
Court with prayer for the issuance of a temporary restraining order (TRO)
seeking to declare unconstitutional and illegal Ordinance Nos. SP-2095, S-
2011 and SP-2235, S-2013 on the Socialized Housing Tax and Garbage
Fee, respectively, which are being imposed by the respondents.
The Case
On October 17, 2011,1 respondent Quezon City Council enacted
Ordinance No. SP-2095, S-2011,2 or the Socialized Housing Tax of
Quezon City, Section 3 of which provides:
SECTION 3. IMPOSITION. A special assessment equivalent to one-half
percent (0.5%) on the assessed value of land in excess of One Hundred
Thousand Pesos (Php100,000.00) shall be collected by the City Treasurer
which shall accrue to the Socialized Housing Programs of the Quezon City
Government. The special assessment shall accrue to the General Fund
under a special account to be established for the purpose.
Effective for five (5) years, the Socialized Housing Tax ( SHT ) shall be
utilized by the Quezon City Government for the following projects: (a)
land purchase/land banking; (b) improvement of current/existing
socialized housing facilities; (c) land development; (d) construction of core
houses, sanitary cores, medium-rise buildings and other similar structures;
and (e) financing of public-private partners hip agreement of the Quezon
City Government and National Housing Authority ( NHA ) with the
private sector.3
Under certain conditions, a tax credit shall be enjoyed by taxpayers
regularly paying the special assessment:
36
SECTION 7. TAX CREDIT. Taxpayers dutifully paying the special Less than 40 sq. m. PHP 25.00 A. Propriety of a Petition for Certiorari
assessment tax as imposed by this ordinance shall enjoy a tax credit. The
tax credit may be availed of only after five (5) years of continue[d] Respondents are of the view that this petition for certiorari is improper
payment. Further, the taxpayer availing this tax credit must be a taxpayer in 41 sq. m. – 60 sq. m. PHP 50.00 since they are not tribunals, boards or officers exercising judicial or quasi-
good standing as certified by the City Treasurer and City Assessor. judicial functions. Petitioner, however, counters that in enacting Ordinance
61 sq. m. – 100 sq. m. PHP 75.00 Nos. SP-2095 and SP-2235, the Quezon City Council exercised quasi-
The tax credit to be granted shall be equivalent to the total amount of the judicial function because the ordinances ruled against the property owners
special assessment paid by the property owner, which shall be given as who must pay the SHT and the garbage fee, exacting from them funds for
101 sq. m. – 150 sq. m. PHP 100.00
follows: basic essential public services that they should not be held liable. Even if a
1. 6th year - 20% Rule 65 petition is improper, petitioner still asserts that this Court, in a
2. 7th year - 20% 151 sq. m. – 200 sq. [m.] or more PHP 200.00 number of cases like in Rosario v. Court of Appeals, 13 has taken
3. 8th year - 20% cognizance of an improper remedy in the interest of justice.
4. 9th year - 20%
5. 10th year - 20% On high-rise Condominium Units We agree that respondents neither acted in any judicial or quasi-judicial
capacity nor arrogated unto themselves any judicial or quasi-judicial
Furthermore, only the registered owners may avail of the tax credit and a) High-rise Condominium – The Homeowners Association of high- rise prerogatives.
may not be continued by the subsequent property owners even if they are condominiums shall pay the annual garbage fee on the total size of the
buyers in good faith, heirs or possessor of a right in whatever legal capacity entire condominium and socialized Housing Unit and an additional garbage A respondent is said to be exercising judicial function where he has the
over the subject property.4 fee shall be collected based on area occupied for every unit already so ld or power to determine what the law is and what the legal rights of the parties
being amortized. are, and then undertakes to determine these questions and adjudicate upon
On the other hand, Ordinance No. SP-2235, S-20135 was enacted on the rights of the parties.
December 16, 2013 and took effect ten days after when it was approved by b) High-rise apartment units – Owners of high-rise apartment units shall
respondent City Mayor.6 The proceeds collected from the garbage fees on pay the annual garbage fee on the total lot size of the entire apartment and Quasi-judicial function, on the other hand, is "a term which applies to the
residential properties shall be deposited solely and exclusively in an an additional garbage fee based on the schedule prescribed herein for every actions, discretion, etc., of public administrative officers or bodies …
earmarked special account under the general fund to be utilized for garbage unit occupied. required to investigate facts or ascertain the existence of facts, hold
collections.7 Section 1 of the Ordinance se t forth the schedule and manner hearings, and draw conclusions from them as a basis for their official
for the collection of garbage fees: The collection of the garbage fee shall accrue on the first day of January action and to exercise discretion of a judicial nature."
and shall be paid simultaneously with the payment of the real property tax,
SECTION 1. The City Government of Quezon City in conformity with but not later than the first quarter installment.8 In case a household owner Before a tribunal, board, or officer may exercise judicial or quasi-judicial
and in relation to Republic Act No. 7160, otherwise known as the Local refuses to pay, a penalty of 25% of the garbage fee due, plus an interest of acts, it is necessary that there be a law that gives rise to some specific rights
Government Code of 1991 HEREBY IMPOSES THE FOLLOWING 2% per month or a fraction thereof, shall be charged.9 of person s or property under which adverse claims to such rights are
SCHEDULE AND MANNER FOR THE ANNUAL COLLECTION made, and the controversy en suing therefrom is brought before a tribunal,
OF GARBAGE FEES, AS FOLLOWS: On all domestic households in Petitioner alleges that he is a registered co-owner of a 371-square-meter board, or officer clothed with power and authority to determine the law
Quezon City; residential property in Quezon City which is covered by Transfer and adjudicate the respective rights of the contending parties. 14
LAND AREA IMPOSABLE FEE Certificate of Title (TCT ) No. 216288, and that, on January 7, 2014, he
paid his realty tax which already included the garbage fee in the sum of For a writ of certiorari to issue, the following requisites must concur: (1) it
Less than 200 sq. m. PHP 100.00 must be directed against a tribunal, board, or officer exercising judicial or
201 sq. m. – 500 sq. m. PHP 200.00 Php100.00.10 quasi-judicial functions; (2) the tribunal, board, or officer must have acted
without or in excess of jurisdiction or with grave abuse of discretion
The instant petition was filed on January 17, 2014. We issued a TRO on amounting to lack or excess of jurisdiction; and (3) there is no appeal or
501 sq. m. – 1,000 sq. m. PHP 300.00 any plain, speedy, and adequate remedy in the ordinary course of law. The
February 5, 2014, which enjoined the enforcement of Ordinance Nos. SP-
1,001 sq. m. – 1,500 sq. m. PHP 400.00 2095 and SP-2235 and required respondents to comment on the petition enactment by the Quezon City Council of the assailed ordinances was done
without necessarily giving due course thereto. 11 in the exercise of its legislative, not judicial or quasi-judicial, function.
1,501 sq. m. – 2,000 sq. m. or more PHP 500.00 Under Republic Act (R.A.) No.7160, or the Local Government Code of
Respondents filed their Comment12 with urgent motion to dissolve the 1991 (LGC), local legislative power shall be exercised by the Sangguniang
On all condominium unit and socialized housing projects/units in Quezon TRO on February 17, 2014. Thereafter, petitioner filed a Reply and a Panlungsod for the city.15Said law likewise is specific in providing that the
City; Memorandum on March 3, 2014 and September 8, 2014, respectively. power to impose a tax, fee, or charge , or to generate revenue shall be
exercised by the sanggunian of the local government unit concerned
FLOOR AREA IMPOSABLE FEE through an appropriate ordinance.16
Procedural Matters
37
Also, although the instant petition is styled as a petition for certiorari, it
essentially seeks to declare the unconstitutionality and illegality of the
questioned ordinances. It, thus, partakes of the nature of a petition for
declaratory relief, over which this Court has only appellate, not original,
jurisdiction.17
Despite these, a petition for declaratory relief may be treated as one for
prohibition or mandamus, over which we exercise original jurisdiction, in
cases with far-reaching implications or one which raises transcendental
issues or questions that need to be resolved for the public good. 18The
judicial policy is that this Court will entertain direct resort to it when the
redress sought cannot be obtained in the proper courts or when
exceptional and compelling circumstances warrant availment of a remedy
within and calling for the exercise of Our primary jurisdiction.19
Section 2, Rule 65 of the Rules of Court lay down under what
circumstances a petition for prohibition may be filed:
SEC. 2. Petition for prohibition. - When the proceedings of any tribunal,
corporation, board, officer or person, whether exercising judicial, quasi-
judicial or ministerial functions, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and there is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the
respondent to desist from further proceeding in the action or matter
specified therein, or otherwise granting such incidental reliefs as law and
justice may require.
In a petition for prohibition against any tribunal, corporation, board, or
person – whether exercising judicial, quasi-judicial, or ministerial functions
– who has acted without or in excess of jurisdiction or with grave abuse of
discretion, the petitioner prays that judgment be rendered, commanding
the respondents to desist from further proceeding in the action or matter
specified in the petition. In this case, petitioner's primary intention is to
prevent respondents from implementing Ordinance Nos. SP-2095 and SP-
2235. Obviously, the writ being sought is in the nature of a prohibition,
commanding desistance.
We consider that respondents City Mayor, City Treasurer, and City
Assessor are performing ministerial functions. A ministerial function is one
that an officer or tribunal performs in the context of a given set of facts, in
a prescribed manner and without regard for the exercise of his or its own
judgment, upon the propriety or impropriety of the act done. 20 Respondent
Mayor, as chief executive of the city government, exercises such powers
and performs such duties and functions as provided for by the LGC and
other laws.21 Particularly, he has the duty to ensure that all taxes and other
revenues of the city are collected, and that city funds are applied to the
payment of expenses and settlement of obligations of the city, in
accordance with law or ordinance.22 On the other hand, under the LGC, all
local taxes, fees, and charges shall be collected by the provincial, city,
municipal, or barangay treasurer, or their duly-authorized deputies, while
the assessor shall take charge, among others, of ensuring that all laws and
policies governing the appraisal and assessment of real properties for
taxation purposes are properly executed.23 Anent the SHT, the Department
of Finance (DOF) Local Finance Circular No. 1-97, dated April 16, 1997, is
more specific:
6.3 The Assessor’s office of the Identified LGU shall:
a. immediately undertake an inventory of lands within its jurisdiction which
shall be subject to the levy of the Social Housing Tax (SHT) by the local
sanggunian concerned;
b. inform the affected registered owners of the effectivity of the SHT; a list
of the lands and registered owners shall also be posted in 3 conspicuous
places in the city/municipality;
c. furnish the Treasurer’s office and the local sanggunian concerned of the
list of lands affected;
6.4 The Treasurer’s office shall:
a. collect the Social Housing Tax on top of the Real Property Tax, SEF Tax
and other special assessments;
b. report to the DOF, thru the Bureau of Local Government Finance, and
the Mayor’s office the monthly collections on Social Housing Tax (SHT).
An annual report should likewise be submitted to the HUDCC on the total
revenues raised during the year pursuant to Sec. 43, R.A. 7279 and the
manner in which the same was disbursed.
Petitioner has adduced special and important reasons as to why direct
recourse to us should be allowed. Aside from presenting a novel question
of law, this case calls for immediate resolution since the challenged
ordinances adversely affect the property interests of all paying constituents
of Quezon City. As well, this petition serves as a test case for the guidance
of other local government units (LGUs).Indeed, the petition at bar is of
transcendental importance warranting a relaxation of the doctrine of
hierarchy of courts. In Social Justice Society (SJS) Officers, et al. v. Lim
,24the Court cited the case of Senator Jaworski v. Phil. Amusement &
Gaming Corp.,25 where We ratiocinated:
Granting arguendo that the present action cannot be properly treated as a
petition for prohibition, the transcendental importance of the issues
involved in this case warrants that we set aside the technical defects and
take primary jurisdiction over the petition at bar . x x x This is in
accordance with the well entrenched principle that rules of procedure are
not inflexible tools designed to hinder or delay, but to facilitate and
promote the administration of justice. Their strict and rigid application,
which would result in technicalities that tend to frustrate, rather than
promote substantial justice, must always be eschewed.26
B. Locus Standi of Petitioner
Respondents challenge petitioner’s legal standing to file this case on the
ground that, in relation to Section 3 of Ordinance No. SP-2095, petitioner
failed to allege his ownership of a property that has an assessed value of
more than Php100,000.00 and, with respect to Ordinance No. SP-2335, by
what standing or personality he filed the case to nullify the same.
According to respondents, the petition is not a class suit, and that, for not
having specifically alleged that petitioner filed the case as a taxpayer, it
could only be surmised whether he is a party-in-interest who stands to be
directly benefited or injured by the judgment in this case.
It is a general rule that every action must be prosecuted or defended in the
name of the real party-in-interest, who stands to be benefited or injured by
the judgment in the suit, or the party entitled to the avails of the suit.
Jurisprudence defines interest as "material interest, an interest in issue and
to be affected by the decree, as distinguished from mere interest in the
question involved, or a mere incidental interest. By real interest is meant a
present substantial interest, as distinguished from a mere expectancy or a
future, contingent, subordinate, or consequential interest." "To qualify a
person to be a real party-in-interest in whose name an action must be
prosecuted, he must appear to be the present real owner of the right sought
to be enforced."27
"Legal standing" or locus standi calls for more than just a generalized
grievance.28 The concept has been define d as a personal and substantial
interest in the case such that the party has sustained or will sustain direct
injury as a result of the government al act that is being challenged.29 The
gist of the question of standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the
court depends for illumination of difficult constitutional questions.30
A party challenging the constitutionality of a law, act, or statute must show
"not only that the law is invalid, but also that he has sustained or is in
immediate, or imminent danger of sustaining some direct injury as a result
of its enforcement, and not merely that he suffers thereby in some
indefinite way." It must be shown that he has been, or is about to be,
denied some right or privilege to which he is lawfully entitled, or that he is
about to be subjected to some burdens or penalties by reason of the statute
complained of.31
38
Tested by the foregoing, petitioner in this case clearly has legal standing to
file the petition. He is a real party-in-interest to assail the constitutionality
and legality of Ordinance Nos. SP-2095 and SP-2235 because respondents
did not dispute that he is a registered co-owner of a residential property in
Quezon City an d that he paid property tax which already included the
SHT and the garbage fee. He has substantial right to seek a refund of the
payments he made and to stop future imposition. While he is a lone
petitioner, his cause of action to declare the validity of the subject
ordinances is substantial and of paramount interest to similarly situated
property owners in Quezon City.
C. Litis Pendentia
Respondents move for the dismissal of this petition on the ground of litis
pendentia. They claim that, as early as February 22, 2012, a case entitled
Alliance of Quezon City Homeowners, Inc., et al., v. Hon. Herbert
Bautista, et al. , docketed as Civil Case No. Q-12- 7-820, has been pending
in the Quezon City Regional Trial Court, Branch 104, which assails the
legality of Ordinance No. SP-2095. Relying on City of Makati, et al. v.
Municipality (now City) of Taguig, et al.,32 respondents assert that there is
substantial identity of parties between the two cases because petitioner
herein and plaintiffs in the civil case filed their respective cases as taxpayers
of Quezon City.
For petitioner, however, respondents’ contention is untenable since he is
not a party in Alliance and does not even have the remotest identity or
association with the plaintiffs in said civil case. Moreover, respondents’
arguments would deprive this Court of its jurisdiction to determine the
constitutionality of laws under Section 5, Article VIII of the 1987
Constitution.33
Litis pendentia is a Latin term which literally means "a pending suit" and is
variously referred to in some decisions as lis pendens and auter action
pendant.34 While it is normally connected with the control which the court
has on a property involved in a suit during the continuance proceedings, it
is more interposed as a ground for the dismissal of a civil action pending in
court.35 In Film Development Council of the Philippines v. SM Prime
Holdings, Inc.,36 We elucidated:
Litis pendentia, as a ground for the dismissal of a civil action, refers to a
situation where two actions are pending between the same parties for the
same cause of action, so that one of them becomes unnecessary and
vexatious. It is based on the policy against multiplicity of suit and
authorizes a court to dismiss a case motu proprio.
xxxx
The requisites in order that an action may be dismissed on the ground of
litis pendentia are: (a) the identity of parties, or at least such as representing
the same interest in both actions; (b) the identity of rights asserted and
relief prayed for, the relief being founded on the same facts, and (c) the
identity of the two cases such that judgment in one, regardless of which
party is successful, would amount to res judicata in the other.
The underlying principle of litis pendentia is the theory that a party is not
allowed to vex another more than once regarding the same subject matter
and for the same cause of action. This theory is founded on the public
policy that the same subject matter should not be the subject of
controversy in courts more than once, in order that possible conflicting
judgments may be avoided for the sake of the stability of the rights and
status of persons, and also to avoid the costs and expenses incident to
numerous suits.
Among the several tests resorted to in ascertaining whether two suits relate
to a single or common cause of action are: (1) whether the same evidence
would support and sustain both the first and second causes of action; and
(2) whether the defenses in one case may be used to substantiate the
complaint in the other.
The determination of whether there is an identity of causes of action for
purposes of litis pendentia is inextricably linked with that of res judicata ,
each constituting an element of the other. In either case, both relate to the
sound practice of including, in a single litigation, the disposition of all
issues relating to a cause of action that is before a court.37
There is substantial identity of the parties when there is a community of
interest between a party in the first case and a party in the second case
albeit the latter was not impleaded in the first case.38 Moreover, the fact
that the positions of the parties are reversed, i.e., the plaintiffs in the first
case are the defendants in the second case or vice-versa, does not negate
the identity of parties for purposes of determining whether the case is
dismissible on the ground of litis pendentia . 39
In this case, it is notable that respondents failed to attach any pleading
connected with the alleged civil case pending before the Quezon City trial
court.1âwphi1 Granting that there is substantial identity of parties between
said case and this petition, dismissal on the ground of litis pendentia still
cannot be had in view of the absence of the second and third requisites.
There is no way for us to determine whether both cases are based on the
same set of facts that require the presentation of the same evidence. Even
if founded on the same set of facts, the rights asserted and reliefs prayed
for could be different. Moreover, there is no basis to rule that the two cases
are intimately related and/or intertwined with one another such that the
judgment that may be rendered in one, regardless of which party would be
successful, would amount to res judicata in the other.
D. Failure to Exhaust Administrative Remedies
Respondents contend that petitioner failed to exhaust administrative
remedies for his non-compliance with Section 187 of the LGC, which
mandates:
Section 187. Procedure for Approval and Effectivity of Tax Ordinances
and Revenue Measures; Mandatory Public Hearings. – The procedure for
approval of local tax ordinances and revenue measures shall be in
accordance with the provisions of this Code: Provided, That public
hearings shall be conducted for the purpose prior to the enactment thereof:
Provided, further, That any question on the constitutionality or legality of
tax ordinances or revenue measures may be raised on appeal within thirty
(30) days from the effectivity thereof to the Secretary of Justice who shall
render a decision within sixty (60) days from the date of receipt of the
appeal: Provided, however, That such appeal shall not have the effect of
suspending the effectivity of the ordinance and the accrual and payment of
the tax, fee, or charge levied therein: Provided, finally, That within thirty
(30) days after receipt of the decision or the lapse of the sixty-day period
without the Secretary of Justice acting upon the appeal, the aggrieved party
may file appropriate proceedings with a court of competent jurisdiction.
The provision, the constitutionality of which was sustained in Drilon v.
Lim ,40 has been construed as mandatory41 considering that –
A municipal tax ordinance empowers a local government unit to impose
taxes. The power to tax is the most effective instrument to raise needed
revenues to finance and support the myriad activities of local government
units for the delivery of basic services essential to the promotion of the
general welfare and enhancement of peace, progress, and prosperity of the
people. Consequently, any delay in implementing tax measures would be to
the detriment of the public. It is for this reason that protests over tax
ordinances are required to be done within certain time frames. x x x.42
The obligatory nature of Section 187 was underscored in Hagonoy Market
Vendor Asso. v. Municipality of Hagonoy:43
x x x [T]he timeframe fixed by law fo r parties to avail of their legal
remedies before competent courts is not a "mere technicality" that can be
easily brushed aside. The periods stated in Section 187 of the Local
Government Code are mandatory. x x x Being its lifeblood, collection of
revenues by the government is of paramount importance. The funds for
the operation of its agencies and provision of basic services to its
inhabitants are largely derived from its revenues and collections. Thus, it is
essential that the validity of revenue measures is not left uncertain for a
considerable length of time. Hence, the law provided a time limit for an
aggrieved party to assail the legality of revenue measures and tax
ordinances."44
Despite these cases, the Court, in Ongsuco, et al. v. Hon. Malones, 45held
that there was no need for petitioners therein to exhaust administrative
remedies before resorting to the courts, considering that there was only a
39
pure question of law, the parties did not dispute any factual matter on
which they had to present evidence. Likewise, in Cagayan Electric Power
and Light Co., Inc. v. City of Cagayan de Oro,46 We relaxed the application
of the rules in view of the more substantive matters. For the same reasons,
this petition is an exception to the general rule.
Substantive Issues
Petitioner asserts that the protection of real properties from informal
settlers and the collection of garbage are basic and essential duties and
functions of the Quezon City Government. By imposing the SHT and the
garbage fee, the latter has shown a penchant and pattern to collect taxes to
pay for public services that could be covered by its revenues from taxes
imposed on property, idle land, business, transfer, amusement, etc., as well
as the Internal Revenue Allotment (IRA ) from the National Government.
For petitioner, it is noteworthy that respondents did not raise the issue that
the Quezon City Government is in dire financial state and desperately
needs money to fund housing for informal settlers and to pay for garbage
collection. In fact, it has not denied that its revenue collection in 2012 is in
the sum of ₱13.69 billion.
Moreover, the imposition of the SHT and the garbage fee cannot be
justified by the Quezon City Government as an exercise of its power to
create sources of income under Section 5, Article X of the 1987
Constitution.47 According to petitioner, the constitutional provision is not a
carte blanche for the LGU to tax everything under its territorial and
political jurisdiction as the provision itself admits of guidelines and
limitations.
Petitioner further claims that the annual property tax is an ad valorem tax, a
percentage of the assessed value of the property, which is subject to
revision every three (3) years in order to reflect an increase in the market
value of the property. The SHT and the garbage fee are actually increases in
the property tax which are not based on the assessed value of the property
or its reassessment every three years; hence, in violation of Sections 232
and 233 of the LGC.48
For their part, respondents relied on the presumption in favor of the
constitutionality of Ordinance Nos. SP-2095 and SP-2235, invoking
Victorias Milling Co., Inc. v. Municipality of Victorias, etc.,49 People v.
Siton, et al.,50 and Hon. Ermita v. Hon. Aldecoa-Delorino .51 They argue
that the burden of establishing the invalidity of an ordinance rests heavily
upon the party challenging its constitutionality. They insist that the
questioned ordinances are proper exercises of police power similar to
Telecom. & Broadcast Attys. of the Phils., Inc. v. COMELEC52 and Social
Justice Society (SJS), et al. v. Hon. Atienza, Jr. 53 and that their enactment
finds basis in the social justice principle enshrined in Section 9,54 Article II
of the 1987 Constitution.
As to the issue of publication, respondents argue that where the law
provides for its own effectivity, publication in the Official Gazette is not
necessary so long as it is not punitive in character, citing Balbuna, et al. v.
Hon. Secretary of Education, et al.55 and Askay v. Cosalan .[56]] Thus,
Ordinance No. SP-2095 took effect after its publication, while Ordinance
No. SP-2235 became effective after its approval on December 26, 2013.
Additionally, the parties articulate the following positions:
On the Socialized Housing Tax
Respondents emphasize that the SHT is pursuant to the social justice
principle found in Sections 1 and 2, Article XIII57 of the 1987 Constitution
and Sections 2 (a)58 and 4359 of R.A. No. 7279, or the "Urban
Development and Housing Act of 1992 ( UDHA ).
Relying on Manila Race Horse Trainers Assn., Inc. v. De La Fuente, 60and
Victorias Milling Co., Inc. v. Municipality of Victorias, etc., 61respondents
assert that Ordinance No. SP-2095 applies equally to all real property
owners without discrimination. There is no way that the ordinance could
violate the equal protection clause because real property owners and
informal settlers do not belong to the same class.
Ordinance No. SP-2095 is also not oppressive since the tax rate being
imposed is consistent with the UDHA. While the law authorizes LGUs to
collect SHT on properties with an assessed value of more than ₱50,000.00,
the questioned ordinance only covers properties with an assessed value
exceeding ₱100,000.00. As well, the ordinance provides for a tax credit
equivalent to the total amount of the special assessment paid by the
property owner beginning in the sixth (6th) year of the effectivity of the
ordinance.
On the contrary, petitioner claims that the collection of the SHT is
tantamount to a penalty imposed on real property owners due to the failure
of respondent Quezon City Mayor and Council to perform their duty to
secure and protect real property owners from informal settlers, thereby
burdening them with the expenses to provide funds for housing. For
petitioner, the SHT cannot be viewed as a "charity" from real property
owners since it is forced, not voluntary.
Also, petitioner argues that the collection of the SHT is a kind of class
legislation that violates the right of property owners to equal protection of
the laws since it favors informal settlers who occupy property not their
own and pay no taxes over law-abiding real property owners w ho pay
income and realty taxes.
Petitioner further contends that respondents’ characterization of the SHT
as "nothing more than an advance payment on the real property tax" has
no statutory basis. Allegedly, property tax cannot be collected before it is
due because, under the LGC, chartered cities are authorized to impose
property tax based on the assessed value and the general revision of
assessment that is made every three (3) years.
As to the rationale of SHT stated in Ordinance No. SP-2095, which, in
turn, was based on Section 43 of the UDHA, petitioner asserts that there is
no specific provision in the 1987 Constitution stating that the ownership
and enjoyment of property bear a social function. And even if there is, it is
seriously doubtful and far-fetched that the principle means that property
owners should provide funds for the housing of informal settlers and for
home site development. Social justice and police power, petitioner believes,
does not mean imposing a tax on one, or that one has to give up
something, for the benefit of another. At best, the principle that property
ownership and enjoyment bear a social function is but a reiteration of the
Civil Law principle that property should not be enjoyed and abused to the
injury of other properties and the community, and that the use of the
property may be restricted by police power, the exercise of which is not
involved in this case.
Finally, petitioner alleges that 6 Bistekvilles will be constructed out of the
SHT collected. Bistek is the monicker of respondent City Mayor. The
Bistekvilles makes it clear, therefore, that politicians will take the credit for
the tax imposed on real property owners.
On the Garbage Fee
Respondents claim that Ordinance No. S-2235, which is an exercise of
police power, collects on the average from every household a garbage fee
in the meager amount of thirty-three (33) centavos per day compared with
the sum of ₱1,659.83 that the Quezon City Government annually spends
for every household for garbage collection and waste management.62
In addition, there is no double taxation because the ordinance involves a
fee. Even assuming that the garbage fee is a tax, the same cannot be a
direct duplicate tax as it is imposed on a different subject matter and is of a
different kind or character. Based on Villanueva, et al. v. City of Iloilo63 and
Victorias Milling Co., Inc. v. Municipality of Victorias, etc.,64 there is no
"taxing twice" because the real property tax is imposed on ownership based
on its assessed value, while the garbage fee is required on the domestic
household. The only reference to the property is the determination of the
applicable rate and the facility of collection.
Petitioner argues, however, that Ordinance No. S-2235 cannot be justified
as an exercise of police power. The cases of Calalang v.
Williams,65 Patalinghug v. Court of Appeals,66 and Social Justice Society
(SJS), et al. v. Hon. Atienza, Jr.,67 which were cited by respondents, are
inapplicable since the assailed ordinance is a revenue measure and does not
regulate the disposal or other aspect of garbage.
40
The subject ordinance, for petitioner, is discriminatory as it collects garbage
fee only from domestic households and not from restaurants, food courts,
fast food chains, and other commercial dining places that spew garbage
much more than residential property owners.
Petitioner likewise contends that the imposition of garbage fee is
tantamount to double taxation because garbage collection is a basic and
essential public service that should be paid out from property tax, business
tax, transfer tax, amusement tax, community tax certificate, other taxes, and
the IRA of the Quezon City Government. To bolster the claim, he states
that the revenue collection of the Quezon City Government reached
Php13.69 billion in 2012. A small portion of said amount could be spent
for garbage collection and other essential services.
It is further noted that the Quezon City Government already collects
garbage fee under Section 4768 of R.A. No. 9003, or the Ecological Solid
Waste Management Act of 2000, which authorizes LGUs to impose fees in
amounts sufficient to pay the costs of preparing, adopting, and
implementing a solid waste management plan, and that LGUs have access
to the Solid Waste Management (SWM) Fund created under Section 46 69 of
the same law. Also, according to petitioner, it is evident that Ordinance
No. S2235 is inconsistent with R.A. No. 9003 for whil e the law encourages
segregation, composting, and recycling of waste, the ordinance only
emphasizes the collection and payment of garbage fee; while the law calls
for an active involvement of the barangay in the collection, segregation,
and recycling of garbage, the ordinance skips such mandate. Lastly, in
challenging the ordinance, petitioner avers that the garbage fee was
collected even if the required publication of its approval had not yet
elapsed. He notes that on January 7, 2014, he paid his realty tax which
already included the garbage fee.
The Court's Ruling
Respondents correctly argued that an ordinance, as in every law, is
presumed valid.
An ordinance carries with it the presumption of validity. The question of
reasonableness though is open to judicial inquiry. Much should be left thus
to the discretion of municipal authorities. Courts will go slow in writing off
an ordinance as unreasonable unless the amount is so excessive as to be
prohibitive, arbitrary, unreasonable, oppressive, or confiscatory. A rule
which has gained acceptance is that factors relevant to such an inquiry are
the municipal conditions as a whole and the nature of the business made
subject to imposition.70
For an ordinance to be valid though, it must not only be within the
corporate powers of the LGU to enact and must be passed according to
the procedure prescribed by law, it should also conform to the following
requirements: (1) not contrary to the Constitution or any statute; (2) not
unfair or oppressive; (3) not partial or discriminatory; (4) not prohibit but
may regulate trade; (5) general and consistent with public policy; and (6)
not unreasonable.71 As jurisprudence indicates, the tests are divided into
the formal (i.e., whether the ordinance was enacted within the corporate
powers of the LGU and whether it was passed in accordance with the
procedure prescribed by law), and the substantive ( i.e., involving inherent
merit, like the conformity of the ordinance with the limitations under the
Constitution and the statutes, as well as with the requirements of fairness
and reason, and its consistency with public policy).72
An ordinance must pass muster under the test of constitutionality and the
test of consistency with the prevailing laws.73 If not, it is void.74
Ordinance should uphold the principle of the supremacy of the
Constitution.75 As to conformity with existing statutes,
Batangas CATV, Inc. v. Court of Appeals76 has this to say:
It is a fundamental principle that municipal ordinances are inferior in status
and subordinate to the laws of the state. An ordinance in conflict with a
state law of general character and statewide application is universally held
to be invalid. The principle is frequently expressed in the declaration that
municipal authorities, under a general grant of power, cannot adopt
ordinances which infringe the spirit of a state law or repugnant to the
general policy of the state. In every power to pass ordinances given to a
municipality, there is an implied restriction that the ordinances shall be
consistent with the general law. In the language of Justice Isagani Cruz
(ret.), this Court, in Magtajas vs. Pryce Properties Corp., Inc., ruled that:
The rationale of the requirement that the ordinances should not contravene
a statute is obvious. Municipal governments are only agents of the national
government. Local councils exercise only delegated legislative powers
conferred on them by Congress as the national lawmaking body. The
delegate cannot be superior to the principal or exercise powers higher than
those of the latter. It is a heresy to suggest that the local government units
can undo the acts of Congress, from which they have derived their power
in the first place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and
rights wholly from the legislature. It breathes into them the breath of life,
without which they cannot exist. As it creates, so it may destroy. As it may
destroy, it may abridge and control. Unless there is some constitutional
limitation on the right, the legislature might, by a single act, and if we can
suppose it capable of so great a folly and so great a wrong, sweep from
existence all of the municipal corporations in the State, and the corporation
could not prevent it. We know of no limitation on the right so far as to the
corporation themselves are concerned. They are so to phrase it, the mere
tenants at will of the legislature.
This basic relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in the
Constitution strengthening the policy of local autonomy. Without meaning
to detract from that policy, we here confirm that Congress retains control
of the local government units although in significantly reduced degree now
than under our previous Constitutions. The power to create still includes
the power to destroy. The power to grant still includes the power to
withhold or recall. True, there are certain notable innovations in the
Constitution, like the direct conferment on the local government units of
the power to tax, which cannot now be withdrawn by mere statute. By and
large, however, the national legislature is still the principal of the local
government units, which cannot defy its will or modify or violate it.77
LGUs must be reminded that they merely form part of the whole; that the
policy of ensuring the autonomy of local governments was never intended
by the drafters of the 1987 Constitution to create an imperium in imperio
and install an intra-sovereign political subdivision independent of a single
sovereign state.78
"[M]unicipal corporations are bodies politic and corporate, created not only
as local units of local self-government, but as governmental agencies of the
state. The legislature, by establishing a municipal corporation, does not
divest the State of any of its sovereignty; absolve itself from its right and
duty to administer the public affairs of the entire state; or divest itself of
any power over the inhabitants of the district which it possesses before the
charter was granted."79
LGUs are able to legislate only by virtue of a valid delegation of legislative
power from the national legislature; they are mere agents vested with what
is called the power of subordinate legislation.80 "Congress enacted the LGC
as the implementing law for the delegation to the various LGUs of the
State’s great powers, namely: the police power, the power of eminent
domain, and the power of taxation. The LGC was fashioned to delineate
the specific parameters and limitations to be complied with by each LGU
in the exercise of these delegated powers with the view of making each
LGU a fully functioning subdivision of the State subject to the
constitutional and statutory limitations." 81
Specifically, with regard to the power of taxation, it is indubitably the most
effective instrument to raise needed revenues in financing and supporting
myriad activities of the LGUs for the delivery of basic services essential to
the promotion of the general welfare and the enhancement of peace,
progress, and prosperity of the people. 82 As this Court opined in National
Power Corp. v. City of Cabanatuan:83
In recent years, the increasing social challenges of the times expanded the
scope of state activity, and taxation has become a tool to realize social
justice and the equitable distribution of wealth, economic progress and the
protection of local industries as well as public welfare and similar
objectives. Taxation assume s even greater significance with the ratification
41
of the 1987 Constitution. Thenceforth, the power to tax is no longer vested
exclusively on Congress; local legislative bodies are now given direct
authority to levy taxes, fees and other charges pursuant to Article X,
Section 5 of the 1987 Constitution, viz: "Section 5. Each Local
Government unit shall have the power to create its own sources of
revenue, to levy taxes, fees and charges subject to such guidelines and
limitations as the Congress may provide, consistent with the basic policy of
local autonomy. Such taxes, fees and charges shall accrue exclusively to the
local governments."
This paradigm shift results from the realization that genuine development
can be achieved only by strengthening local autonomy and promoting
decentralization of governance. For a long time, the country’s highly
centralized government structure has bred a culture of dependence among
local government leaders upon the national leadership. It has also
"dampened the spirit of initiative, innovation and imaginative resilience in
matters of local development on the part of local government leaders." The
only way to shatter this culture of dependence is to give the LGUs a wider
role in the delivery of basic services, and confer them sufficient powers to
generate their own sources for the purpose. To achieve this goal, Section 3
of Article X of the 1987 Constitution mandates Congress to enact a local
government code that will, consistent with the basic policy of local
autonomy , set the guidelines and limitations to this grant of taxing powers
x x x84
Fairly recently, We also stated in Pelizloy Realty Corporation v. Province of
Benguet85 that:
The rule governing the taxing power of provinces, cities, municipalities and
barangays is summarized in Icard v. City Council of Baguio :
It is settled that a municipal corporation unlike a sovereign state is clothed
with no inherent power of taxation. The charter or statute must plainly
show an intent to confer that power or the municipality, cannot assume it.
And the power when granted is to be construed in strictissimi juris . Any
doubt or ambiguity arising out of the term used in granting that power
must be resolved against the municipality. Inferences, implications,
deductions – all these – have no place in the interpretation of the taxing
power of a municipal corporation. [Underscoring supplied]
xxxx
Per Section 5, Article X of the 1987 Constitution, "the power to tax is no
longer vested exclusively on Congress; local legislative bodies are now
given direct authority to levy taxes, fees and other charges." Nevertheless,
such authority is "subject to such guidelines and limitations as the Congress
may provide."
In conformity with Section 3, Article X of the 1987 Constitution, Congress
enacted Republic Act No. 7160, otherwise known as the Local
Government Code of 1991. Book II of the LGC governs local taxation and
fiscal matters.86
Indeed, LGUs have no inherent power to tax except to the extent that such
power might be delegated to them either by the basic law or by the
statute.87 "Under the now prevailing Constitution , where there is neither a
grant nor a prohibition by statute , the tax power must be deemed to exist
although Congress may provide statutory limitations and guidelines. The
basic rationale for the current rule is to safeguard the viability and self-
sufficiency of local government units by directly granting them general and
broad tax powers. Nevertheless, the fundamental law did not intend the
delegation to be absolute and unconditional; the constitutional objective
obviously is to ensure that, while the local government units are being
strengthened and made more autonomous , the legislature must still see to
it that (a) the taxpayer will not be over-burdened or saddled with multiple
and unreasonable impositions; (b) each local government unit will have its
fair share of available resources; (c) the resources of the national
government will not be unduly disturbed; and (d) local taxation will be fair,
uniform, and just."88
Subject to the provisions of the LGC and consistent with the basic policy
of local autonomy, every LGU is now empowered and authorized to create
its own sources of revenue and to levy taxes, fees, and charges which shall
accrue exclusively to the local government unit as well as to apply its
resources and assets for productive, developmental, or welfare purposes, in
the exercise or furtherance of their governmental or proprietary powers
and functions.89 The relevant provisions of the LGC which establish the
parameters of the taxing power of the LGUs are as follows:
SECTION 130. Fundamental Principles. – The following fundamental
principles shall govern th e exercise of the taxing and other revenue-raising
powers of local government units:
(a) Taxation shall be uniform in each local government unit;
(b) Taxes, fees, charges and other impositions shall:
(1) be equitable and based as far as practicable on the taxpayer’s ability to
pay;
(2) be levied and collected only for public purposes;
(3) not be unjust, excessive, oppressive, or confiscatory;
(4) not be contrary to law, public policy, national economic policy, or in
restraint of trade;
(c) The collection of local taxes, fees, charges and other impositions shall in
no case be left to any private person;
(d) The revenue collected pursuant to the provisions of this Code shall
inure solely to the benefit of, and be subject to the disposition by, the local
government unit levying the tax, fee, charge or other imposition unless
otherwise specifically provided herein; and,
(e) Each local government unit shall, as far as practicable, evolve a
progressive system of taxation.
SECTION 133. Common Limitations on the Taxing Powers of Local
Government Units. – Unless otherwise provided herein, the exercise of the
taxing powers of provinces, cities, municipalities, and barangays shall not
extend to the levy of the following:
(a) Income tax, except when levied on banks and other financial
institutions;
(b) Documentary stamp tax;
(c) Taxes on estates, inheritance, gifts, legacies and other acquisitions
mortis causa, except as otherwise provided herein;
(d) Customs duties, registration fees of vessel and wharage on wharves,
tonnage dues, and all other kinds of customs fees, charges and dues except
wharfage on wharves constructed and maintained by the local government
unit concerned;
(e) Taxes, fees, and charges and other impositions upon goods carried into
or out of, or passing through, the territorial jurisdictions of local
government units in the guise of charges for wharfage, tolls for bridges or
otherwise, or other taxes, fees, or charges in any form whatsoever upon
such goods or merchandise;
(f) Taxes, fees or charges on agricultural and aquatic products when sold by
marginal farmers or fishermen;
(g) Taxes on business enterprises certified to by the Board of Investments
as pioneer or non-pioneer for a period of six (6) and four (4) years,
respectively from the date of registration;
(h) Excise taxes on articles enumerated under the National Internal
Revenue Code, as amended, and taxes, fees or charges on petroleum
products;
(i) Percentage or value-added tax (VAT) on sales, barters or exchanges or
similar transactions on goods or services except as otherwise provided
herein;
42
(j) Taxes on the gross receipts of transportation contractors and persons
engaged in the transportation of passengers or freight by hire and common
carriers by air, land or water, except as provided in this Code;
(k) Taxes on premiums paid by way of reinsurance or retrocession;
(l) Taxes, fees or charges for the registration of motor vehicles and for the
issuance of all kinds of licenses or permits for the driving thereof, except
tricycles;
(m) Taxes, fees, or other charges on Philippine products actually exported,
except as otherwise provided herein;
(n) Taxes, fees, or charges, on Countryside and Barangay Business
Enterprises and cooperatives duly registered under R.A. No. 6810 and
Republic Act Numbered Sixty-nine hundred thirty-eight (R.A. No. 6938)
otherwise known as the "Cooperative Code of the Philippines"
respectively; and
(o) Taxes, fees or charges of any kind on the National Government, its
agencies and instrumentalities, and local government units.
SECTION 151. Scope of Taxing Powers. – Except as otherwise provided
in this Code, the city, may levy the taxes, fees, and charges which the
province or municipality may impose: Provided, however, That the taxes,
fees and charges levied and collected by highly urbanized and independent
component cities shall accrue to them and distributed in accordance with
the provisions of this Code.
The rates of taxes that the city may levy may exceed the maximum rates
allowed for the province or municipality by not more than fifty percent
(50%) except the rates of professional and amusement taxes.
SECTION 186. Power to Levy Other Taxes, Fees or Charges. – Local
government units may exercise the power to levy taxes, fees or charges on
any base or subject not otherwise specifically enumerated herein or taxed
under the provisions of the National Internal Revenue Code, as amended,
or other applicable laws: Provided, That the taxes, fees, or charges shall not
be unjust, excessive, oppressive, confiscatory or contrary to declared
national policy: Provided, further, That the ordinance levying such taxes,
fees or charges shall not be enacted without any prior public hearing
conducted for the purpose.
On the Socialized Housing Tax
Contrary to petitioner’s submission, the 1987 Constitution explicitly
espouses the view that the use of property bears a social function and that
all economic agents shall contribute to the common good. 90 The Court
already recognized this in Social Justice Society (SJS), et al. v. Hon. Atienza,
Jr.:91
Property has not only an individual function, insofar as it has to provide
for the needs of the owner, but also a social function insofar as it has to
provide for the needs of the other members of society. The principle is
this:
Police power proceeds from the principle that every holder of property,
however absolute and unqualified may be his title, holds it under the
implied liability that his use of it shall not be injurious to the equal
enjoyment of others having an equal right to the enjoyment of their
property, no r injurious to the right of the community. Rights of property,
like all other social and conventional rights, are subject to reasonable
limitations in their enjoyment as shall prevent them from being injurious,
and to such reasonable restraints and regulations established by law as the
legislature, under the governing an d controlling power vested in them by
the constitution, may think necessary and expedient.92
Police power, which flows from the recognition that salus populi est
suprema lex (the welfare of the people is the supreme law), is the plenary
power vested in the legislature to make statutes and ordinances to promote
the health, morals, peace, education, good order or safety and general
welfare of the people.93 Property rights of individuals may be subjected to
restraints and burdens in order to fulfill the objectives of the government
in the exercise of police power. 94 In this jurisdiction, it is well-entrenched
that taxation may be made the implement of the state’s police power.95
Ordinance No. SP-2095 imposes a Socialized Housing Tax equivalent to
0.5% on the assessed value of land in excess of Php100,000.00. This special
assessment is the same tax referred to in R.A. No. 7279 or the
UDHA.96 The SHT is one of the sources of funds for urban development
and housing program.97 Section 43 of the law provides:
Sec. 43. Socialized Housing Tax . – Consistent with the constitutional
principle that the ownership and enjoyment of property bear a social
function and to raise funds for the Program, all local government units are
hereby authorized to impose an additional one-half percent (0.5%) tax on
the assessed value of all lands in urban areas in excess of Fifty thousand
pesos (₱50,000.00).
The rationale of the SHT is found in the preambular clauses of the subject
ordinance, to wit:
WHEREAS, the imposition of additional tax is intended to provide the
City Government with sufficient funds to initiate, implement and
undertake Socialized Housing Projects and other related preliminary
activities;
WHEREAS, the imposition of 0.5% tax will benefit the Socialized Housing
Programs and Projects of the City Government, specifically the
marginalized sector through the acquisition of properties for human
settlements;
WHEREAS, the removal of the urban blight will definitely increase fair
market value of properties in the city[.]
The above-quoted are consistent with the UDHA, which the LGUs are
charged to implement in their respective localities in coordination with the
Housing and Urban Development Coordinating Council, the national
housing agencies, the Presidential Commission for the Urban Poor, the
private sector, and other non-government organizations.98 It is the declared
policy of the State to undertake a comprehensive and continuing urban
development and housing program that shall, among others, uplift the
conditions of the underprivileged and homeless citizens in urban areas and
in resettlement areas, and provide for the rational use and development of
urban land in order to bring a bout, among others, reduction in urban
dysfunctions, particularly those that adversely affect public health, safety
and ecology, and access to land and housing by the underprivileged and
homeless citizens.99 Urban renewal and resettlement shall include the
rehabilitation and development of blighted and slum areas100 and the
resettlement of program beneficiaries in accordance with the provisions of
the UDHA.101 Under the UDHA, socialized housing102 shall be the primary
strategy in providing shelter for the underprivileged and homeless. 103 The
LGU or the NHA, in cooperation with the private developers and
concerned agencies, shall provide socialized housing or re settlement areas
with basic services and facilities such as potable water, power and
electricity, and an adequate power distribution system, sewerage facilities,
and an efficient and adequate solid waste disposal system; and access to
primary roads and transportation facilities.104 The provisions for health,
education, communications, security, recreation, relief and welfare shall
also be planned and be given priority for implementation by the LGU and
concerned agencies in cooperation with the private sector and the
beneficiaries themselves.105
Moreover, within two years from the effectivity of the UDHA, the LGUs,
in coordination with the NHA, are directed to implement the relocation
and resettlement of persons living in danger areas such as esteros , railroad
tracks, garbage dumps, riverbanks, shorelines, waterways, and other public
places like sidewalks, roads, parks, and playgrounds. 106 In coordination with
the NHA, the LG Us shall provide relocation or resettlement sites with
basic services and facilities and access to employment and livelihood
opportunities sufficient to meet the basic needs of the affected families. 107
Clearly, the SHT charged by the Quezon City Government is a tax which is
within its power to impose. Aside from the specific authority vested by
Section 43 of the UDHA, cities are allowed to exercise such other powers
and discharge such other functions and responsibilities as are necessary,
appropriate, or incidental to efficient and effective provision of the basic
43
services and facilities which include, among others, programs and projects
for low-cost housing and other mass dwellings.108 The collections made
accrue to its socialized housing programs and projects.
The tax is not a pure exercise of taxing power or merely to raise revenue; it
is levied with a regulatory purpose. The levy is primarily in the exercise of
the police power for the general welfare of the entire city. It is greatly
imbued with public interest. Removing slum areas in Quezon City is not
only beneficial to the underprivileged and homeless constituents but
advantageous to the real property owners as well. The situation will
improve the value of the their property investments, fully enjoying the
same in view of an orderly, secure, and safe community, and will enhance
the quality of life of the poor, making them law-abiding constituents and
better consumers of business products.
Though broad and far-reaching, police power is subordinate to
constitutional limitations and is subject to the requirement that its exercise
must be reasonable and for the public good.109 In the words of City of
Manila v. Hon. Laguio, Jr.:110
The police power granted to local government units must always be
exercised with utmost observance of the rights of the people to due
process and equal protection of the law. Such power cannot be exercised
whimsically, arbitrarily or despotically as its exercise is subject to a
qualification, limitation or restriction demanded by the respect and regard
due to the prescription of the fundamental law, particularly those forming
part of the Bill of Rights. Individual rights, it bears emphasis, may be
adversely affected only to the extent that may fairly be required by the
legitimate demands of public interest or public welfare. Due process
requires the intrinsic validity of the law in interfering with the rights of the
person to his life, liberty and property.
xxxx
To successfully invoke the exercise of police power as the rationale for the
enactment of the Ordinance, and to free it from the imputation of
constitutional infirmity, not only must it appear that the interests of the
public generally, as distinguished from those of a particular class, require an
interference with private rights, but the means adopted must be reasonably
necessary for the accomplishment of the purpose and not unduly
oppressive upon individuals. It must be evident that no other alternative
for the accomplishment of the purpose less intrusive of private rights can
work. A reasonable relation must exist between the purposes of the police
measure and the means employed for its accomplishment, for even under
the guise of protecting the public interest, personal rights and those
pertaining to private property will not be permitted to be arbitrarily
invaded.
Lacking a concurrence of these two requisites, the police measure shall be
struck down as an arbitrary intrusion into private rights – a violation of the
due process clause.111
As with the State, LGUs may be considered as having properly exercised
their police power only if there is a lawful subject and a lawful method or,
to be precise, if the following requisites are met: (1) the interests of the
public generally, as distinguished from those of a particular class, require its
exercise and (2) the mean s employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon
individuals.112
In this case, petitioner argues that the SHT is a penalty imposed on real
property owners because it burdens them with expenses to provide funds
for the housing of informal settlers, and that it is a class legislation since it
favors the latter who occupy properties which is not their own and pay no
taxes.
We disagree.
Equal protection requires that all persons or things similarly situated should
be treated alike, both as to rights conferred and responsibilities
imposed.113 The guarantee means that no person or class of persons shall
be denied the same protection of laws which is enjoyed by other persons or
other classes in like circumstances.114 Similar subjects should not be treated
differently so as to give undue favor to some and unjustly discriminate
against others.115 The law may, therefore, treat and regulate one class
differently from another class provided there are real and substantial
differences to distinguish one class from another.116
An ordinance based on reasonable classification does not violate the
constitutional guaranty of the equal protection of the law. The
requirements for a valid and reasonable classification are: (1) it must rest on
substantial distinctions; (2) it must be germane to the purpose of the law;
(3) it must not be limited to existing conditions only; and (4) it must apply
equally to all members of the same class.117For the purpose of undertaking
a comprehensive and continuing urban development and housing program,
the disparities between a real property owner and an informal settler as two
distinct classes are too obvious and need not be discussed at length. The
differentiation conforms to the practical dictates of justice and equity and is
not discriminatory within the meaning of the Constitution. Notably, the
public purpose of a tax may legally exist even if the motive which impelled
the legislature to impose the tax was to favor one over another.118 It is
inherent in the power to tax that a State is free to select the subjects of
taxation.119 Inequities which result from a singling out of one particular
class for taxation or exemption infringe no constitutional limitation.120
Further, the reasonableness of Ordinance No. SP-2095 cannot be disputed.
It is not confiscatory or oppressive since the tax being imposed therein is
below what the UDHA actually allows. As pointed out by respondents,
while the law authorizes LGUs to collect SHT on lands with an assessed
value of more than ₱50,000.00, the questioned ordinance only covers lands
with an assessed value exceeding ₱100,000.00. Even better, on certain
conditions, the ordinance grants a tax credit equivalent to the total amount
of the special assessment paid beginning in the sixth (6th) year of its
effectivity. Far from being obnoxious, the provisions of the subject
ordinance are fair and just.
On the Garbage Fee
In the United States of America, it has been held that the authority of a
municipality to regulate garbage falls within its police power to protect
public health, safety, and welfare.121 As opined, the purposes and policy
underpinnings of the police power to regulate the collection and disposal
of solid waste are: (1) to preserve and protect the public health and welfare
as well as the environment by minimizing or eliminating a source of disease
and preventing and abating nuisances; and (2) to defray costs and ensure
financial stability of the system for the benefit of the entire community,
with the sum of all charges marshalled and designed to pay for the expense
of a systemic refuse disposal scheme.122
Ordinances regulating waste removal carry a strong presumption of
validity.123 Not surprisingly, the overwhelming majority of U.S. cases
addressing a city's authority to impose mandatory garbage service and fees
have upheld the ordinances against constitutional and statutory
challenges.124
A municipality has an affirmative duty to supervise and control the
collection of garbage within its corporate limits. 125 The LGC specifically
assigns the responsibility of regulation and oversight of solid waste to local
governing bodies because the Legislature determined that such bodies were
in the best position to develop efficient waste management programs.126 To
impose on local governments the responsibility to regulate solid waste but
not grant them the authority necessary to fulfill the same would lead to an
absurd result."127 As held in one U.S. case:
x x x When a municipality has general authority to regulate a particular
subject matter, the manner and means of exercising those powers, where
not specifically prescribed by the legislature, are left to the discretion of the
municipal authorities. x x x Leaving the manner of exercising municipal
powers to the discretion of municipal authorities "implies a range of
reasonableness within which a municipality's exercise of discretion will not
be interfered with or upset by the judiciary."128
In this jurisdiction, pursuant to Section 16 of the LGC and in the proper
exercise of its corporate powers under Section 22 of the same, the
Sangguniang Panlungsod of Quezon City, like other local legislative bodies,
is empowered to enact ordinances, approve resolutions, and appropriate
44
funds for the genera l welfare of the city and its inhabitants. 129Section 16 of
the LGC provides:
SECTION 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.
The general welfare clause is the delegation in statutory form of the police
power of the State to LGUs.130 The provisions related thereto are liberally
interpreted to give more powers to LGUs in accelerating economic
development and upgrading the quality of life for the people in the
community.131 Wide discretion is vested on the legislative authority to
determine not only what the interests of the public require but also what
measures are necessary for the protection of such interests since the
Sanggunian is in the best position to determine the needs of its
constituents.132
One of the operative principles of decentralization is that, subject to the
provisions of the LGC and national policies, the LGUs shall share with the
national government the responsibility in the management and
maintenance of ecological balance within their territorial jurisdiction. 133 In
this regard, cities are allowed to exercise such other powers and discharge
such other functions and responsibilities as are necessary, appropriate, or
incidental to efficient and effective provision of the basic services and
facilities which include, among others, solid waste disposal system or
environmental management system and services or facilities related to
general hygiene and sanitation.134 R.A. No. 9003, or the Ecological Solid
Waste Management Act of 2000,135 affirms this authority as it expresses
that the LGUs shall be primarily responsible for the implementation and
enforcement of its provisions within their respective jurisdictions while
establishing a cooperative effort among the national government, other
local government units, non-government organizations, and the private
sector.136
Necessarily, LGUs are statutorily sanctioned to impose and collect such
reasonable fees and charges for services rendered.137 "Charges" refer to
pecuniary liability, as rents or fees against persons or property, while "Fee"
means a charge fixed by law or ordinance for the regulation or inspection
of a business or activity.138
The fee imposed for garbage collections under Ordinance No. SP-2235 is a
charge fixed for the regulation of an activity. The basis for this could be
discerned from the foreword of said Ordinance, to wit:
WHEREAS, Quezon City being the largest and premiere city in the
Philippines in terms of population and urban geographical areas, apart
from being competent and efficient in the delivery of public service,
apparently requires a big budgetary allocation in order to address the
problems relative and connected to the prompt and efficient delivery of
basic services such as the effective system of waste management, public
information programs on proper garb age and proper waste disposal,
including the imposition of waste regulatory measures;
WHEREAS, to help augment the funds to be spent for the city’s waste
management system, the City Government through the Sangguniang
Panlungsod deems it necessary to impose a schedule of reasonable fees or
charges for the garbage collection services for residential (domestic
household) that it renders to the public.
Certainly, as opposed to petitioner’s opinion, the garbage fee is not a tax.
In Smart Communications, Inc. v. Municipality of Malvar, Batangas ,139the
Court had the occasion to distinguish these two concepts:
In Progressive Development Corporation v. Quezon City, the Court
declared that "if the generating of revenue is the primary purpose and
regulation is merely incidental, the imposition is a tax; but if regulation is
the primary purpose, the fact that incidentally revenue is also obtained does
not make the imposition a tax."
In Victorias Milling Co., Inc. v. Municipality of Victorias, the Court
reiterated that the purpose and effect of the imposition determine whether
it is a tax or a fee, and that the lack of any standards for such imposition
gives the presumption that the same is a tax.
We accordingly say that the designation given by the municipal authorities
does not decide whether the imposition is properly a license tax or a license
fee.1awp++i1 The determining factors are the purpose and effect of the
imposition as may be apparent from the provisions of the ordinance. Thus,
"[w]hen no police inspection, supervision, or regulation is provided, nor
any standard set for the applicant to establish, or that he agrees to attain or
maintain, but any and all persons engaged in the business designated,
without qualification or hindrance, may come, and a license on payment of
the stipulated sum will issue, to do business, subject to no prescribed rule
of conduct and under no guardian eye, but according to the unrestrained
judgment or fancy of the applicant and licensee, the presumption is strong
that the power of taxation, and not the police power, is being exercised."
In Georgia, U.S.A., assessments for garbage collection services have been
consistently treated as a fee and not a tax. 140
In another U.S. case,141 the garbage fee was considered as a "service
charge" rather than a tax as it was actually a fee for a service given by the
city which had previously been provided at no cost to its citizens.
Hence, not being a tax, the contention that the garbage fee under
Ordinance No. SP-2235 violates the rule on double taxation142 must
necessarily fail.
Nonetheless, although a special charge, tax, or assessment may be imposed
by a municipal corporation, it must be reasonably commensurate to the
cost of providing the garbage service.143 To pass judicial scrutiny, a
regulatory fee must not produce revenue in excess of the cost of the
regulation because such fee will be construed as an illegal tax when the
revenue generated by the regulation exceeds the cost of the regulation. 144
Petitioner argues that the Quezon City Government already collects
garbage fee under Section 47 of R.A. No. 9003, which authorizes LGUs to
impose fees in amounts sufficient to pay the costs of preparing, adopting,
and implementing a solid waste management plan, and that it has access to
the SWM Fund under Section 46 of the same law. Moreover, Ordinance
No. S-2235 is inconsistent with R.A. No. 9003, because the ordinance
emphasizes the collection and payment of garbage fee with no concern for
segregation, composting and recycling of wastes. It also skips the mandate
of the law calling for the active involvement of the barangay in the
collection, segregation, and recycling of garbage.
We now turn to the pertinent provisions of R.A. No. 9003.
Under R.A. No. 9003, it is the declared policy of the State to adopt a
systematic, comprehensive and ecological solid waste management
program which shall, among others, ensure the proper segregation,
collection, transport, storage, treatment and disposal of solid waste through
the formulation and adoption of the best environmental practices in
ecological waste management.145 The law provides that segregation and
collection of solid waste shall be conducted at the barangay level,
specifically for biodegradable, compostable and reusable wastes, while the
collection of non-recyclable materials and special wastes shall be the
responsibility of the municipality or city.146 Mandatory segregation of solid
wastes shall primarily be conducted at the source, to include household,
institutional, industrial, commercial and agricultural sources.147 Segregation
at source refers to a solid waste management practice of separating, at the
point of origin, different materials found in soli d waste in order to
promote recycling and re-use of resources and to reduce the volume of
waste for collection and disposal.148 Based on Rule XVII of the
Department of Environment and Natural Resources (DENR)
Administrative Order No. 2001-34, Series of 2001,149 which is the
Implementing Rules and Regulations ( IRR ) of R.A. No. 9003, barangays
shall be responsible for the collection, segregation, and recycling of
biodegradable, recyclable , compostable and reusable wastes.150
45
For the purpose, a Materials Recovery Facility (MRF), which shall receive
biodegradable wastes for composting and mixed non-biodegradable wastes
for final segregation, re-use and recycling, is to be established in every
barangay or cluster of barangays.151
According to R.A. 9003, an LGU, through its local solid waste
management board, is mandated by law to prepare a 10-year solid waste
management plan consistent with the National Solid Waste Management
Framework.152 The plan shall be for the re-use, recycling and composting
of wastes generated in its jurisdiction; ensure the efficient management of
solid waste generated within its jurisdiction; and place primary emphasis on
implementation of all feasible re-use, recycling, and composting programs
while identifying the amount of landfill and transformation capacity that
will be needed for solid waste which cannot be re-used, recycled, or
composted.153 One of the components of the so lid waste management
plan is source reduction:
(e) Source reduction – The source reduction component shall include a
program and implementation schedule which shows the methods by which
the LGU will, in combination with the recycling and composting
components, reduce a sufficient amount of solid waste disposed of in
accordance with the diversion requirements of Section 20.
The source reduction component shall describe the following:
(1) strategies in reducing the volume of solid waste generated at source;
(2) measures for implementing such strategies and the resources necessary
to carry out such activities;
(3) other appropriate waste reduction technologies that may also be
considered, provide d that such technologies conform with the standards
set pursuant to this Act;
(4) the types of wastes to be reduced pursuant to Section 15 of this Act;
(5) the methods that the LGU will use to determine the categories of solid
wastes to be diverted from disposal at a disposal facility through re-use ,
recycling and composting; and
(6) new facilities and of expansion of existing facilities which will be needed
to implement re-use, recycling and composting.
The LGU source reduction component shall include the evaluation and
identification of rate structures and fees for the purpose of reducing the
amount of waste generated, and other source reduction strategies, including
but not limited to, program s and economic incentives provided under Sec.
45 of this Act to reduce the use of non-recyclable materials, replace
disposable materials and products with reusable materials and products,
reduce packaging, and increase the efficiency of the use of paper,
cardboard, glass, metal, and other materials. The waste reduction activities
of the community shall al so take into account, among others, local
capability, economic viability, technical requirements, social concerns,
disposition of residual waste and environmental impact: Provided , That,
projection of future facilities needed and estimated cost shall be
incorporated in the plan. x x x154
The solid waste management pl an shall also include an implementation
schedule for solid waste diversion:
SEC. 20. Establishing Mandatory Solid Waste Diversion. – Each LGU plan
shall include an implementation schedule which shows that within five (5)
years after the effectivity of this Act, the LGU shall divert at least 25% of
all solid waste from waste disposal facilities through re-use, recycling, and
composting activities and other resource recovery activities: Provided ,
That the waste diversion goals shall be increased every three (3) years
thereafter: Provided , further, That nothing in this Section prohibits a local
government unit from implementing re-use, recycling, and composting
activities designed to exceed the goal.
The baseline for the twenty-five percent (25%) shall be derived from the
waste characterization result155 that each LGU is mandated to
undertake.156In accordance with Section 46 of R.A. No. 9003, the LGUs
are entitled to avail of the SWM Fund on the basis of their approved solid
waste management plan. Aside from this, they may also impose SWM Fees
under Section 47 of the law, which states:
SEC. 47. Authority to Collect Solid Waste Management Fees – The local
government unit shall impose fees in amounts sufficient to pay the costs of
preparing, adopting, and implementing a solid waste management plan
prepared pursuant to this Act. The fees shall be based on the following
minimum factors:
(a) types of solid waste;
(b) amount/volume of waste; and
(c) distance of the transfer station to the waste management facility.
The fees shall be used to pay the actual costs incurred by the LGU in
collecting the local fees. In determining the amounts of the fees, an LGU
shall include only those costs directly related to the adoption and
implementation of the plan and the setting and collection of the local fees.
Rule XVII of the IRR of R.A. No. 9003 sets forth the details:
Section 1. Power to Collect Solid Waste Management Fees . – The Local
SWM Board/Local SWM Cluster Board shall impose fees on the SWM
services provided for by the LGU and/or any authorized organization or
unit. In determining the amounts of the fees, a Local SWM Board/Local
SWM Cluster Board shall include only those costs directly related to the
adoption and implementation of the SWM Plan and the setting and
collection of the local fees. This power to impose fees may be ceded to the
private sector and civil society groups which have been duly accredited by
the Local SWM Boar d/Local SWM Cluster Board; provided, the SWM
fees shall be covered by a Contract or Memorandum of Agreement
between the respective boa rd and the private sector or civil society group.
The fees shall pay for the costs of preparing, adopting and implementing a
SWM Plan prepared pursuant to the Act. Further, the fees shall also be
used to pay the actual costs incurred in collecting the local fees and for
project sustainability.
Section 2. Basis of SWM Service Fees
Reasonable SWM service fees shall be computed based on but not limited
to the following minimum factors:
a) Types of solid waste to include special waste
b) amount/volume of waste
c) distance of the transfer station to the waste management facility
d) capacity or type of LGU constituency
e) cost of construction
f) cost of management
g) type of technology
Section 3. Collection of Fees. – Fees may be collected corresponding to the
following levels:
a) Barangay – The Barangay may impose fees for collection and segregation
of biodegradable, compostable and reusable wastes from households,
commerce, other sources of domestic wastes, and for the use of Barangay
MRFs. The computation of the fees shall be established by the respective
SWM boards. The manner of collection of the fees shall be dependent on
the style of administration of respective Barangay Councils. However, all
transactions shall follow the Commission on Audit rules on collection of
fees.
b) Municipality – The municipal and city councils may impose fees on the
barangay MRFs for the collection and transport of non-recyclable and
special wastes and for the disposal of these into the sanitary landfill. The
level and procedure for exacting fees shall be defined by the Local SWM
Board/Local SWM Cluster Board and supported by LGU ordinances;
however, payments shall be consistent with the accounting system of
government.
46
c) Private Sector/Civil Society Group – On the basis of the stipulations of
contract or Memorandum of Agreement, the private sector or civil society
group shall impose fees for collection, transport and tipping in their SLFs.
Receipts and invoices shall be issued to the paying public or to the
government.
From the afore-quoted provisions, it is clear that the authority of a
municipality or city to impose fees is limited to the collection and transport
of non-recyclable and special wastes and for the disposal of these into the
sanitary landfill. Barangays, on the other hand, have the authority to
impose fees for the collection and segregation of biodegradable,
compostable and reusable wastes from households, commerce, other
sources of domestic wastes, and for the use of barangay MRFs. This is but
consistent with
Section 10 of R.A. No. 9003 directing that segregation and collection of
biodegradable, compostable and reusable wastes shall be conducted at the
barangay level, while the collection of non-recyclable materials and special
wastes shall be the responsibility of the municipality or city.
In this case, the alleged bases of Ordinance No. S-2235 in imposing the
garbage fee is the volume of waste currently generated by each person in
Quezon City, which purportedly stands at 0.66 kilogram per day, and the
increasing trend of waste generation for the past three
years.157 Respondents
did not elaborate any further. The figure presented does not reflect the
specific types of wastes generated – whether residential, market,
commercial, industrial, construction/demolition, street waste, agricultural,
agro-industrial, institutional, etc. It is reasonable, therefore, for the Court to
presume that such amount pertains to the totality of wastes, without any
distinction, generated by Quezon City constituents. To reiterate, however,
the authority of a municipality or city to impose fees extends only to those
related to the collection and transport of non-recyclable and special wastes.
Granting, for the sake of argument, that the 0.66 kilogram of solid waste
per day refers only to non-recyclable and special wastes, still, We cannot
sustain the validity of Ordinance No. S-2235. It violates the equal
protection clause of the Constitution and the provisions of the LGC that
an ordinance must be equitable and based as far as practicable on the
taxpayer’s ability to pay, and not unjust, excessive, oppressive,
confiscatory.158
In the subject ordinance, the rates of the imposable fee depend on land or
floor area and whether the payee is an occupant of a lot, condominium,
social housing project or apartment. For easy reference, the relevant
provision is again quoted below:
On all domestic households in Quezon City;
LAND AREA IMPOSABLE FEE unlike unit occupants, all occupants of a lot with an area of 200 sq. m. and
less have to pay a fixed rate of Php100.00; and the same amount of garbage
Less than 200 sq. m. PHP 100.00 fee is imposed regardless of whether the resident is from a condominium
201 sq. m. – 500 sq. m. PHP 200.00 or from a socialized housing project.
501 sq. m. – 1,000 sq. m. PHP 300.00 Indeed, the classifications under Ordinance No. S-2235 are not germane to
1,001 sq. m. – 1,500 sq. m. PHP 400.00 its declared purpose of "promoting shared responsibility with the residents
to attack their common mindless attitude in over-consuming the present
1,501 sq. m. – 2,000 sq. m. or more PHP 500.00 resources and in generating waste."160 Instead of simplistically categorizing
the payee into land or floor occupant of a lot or unit of a condominium,
On all condominium unit and socialized housing projects/units in Quezon socialized housing project or apartment, respondent City Council should
City; have considered factors that could truly measure the amount of wastes
generated and the appropriate fee for its collection. Factors include, among
FLOOR AREA IMPOSABLE FEE others, household age and size, accessibility to waste collection, population
density of the barangay or district, capacity to pay, and actual occupancy of
Less than 40 sq. m. PHP 25.00 the property. R.A. No. 9003 may also be looked into for guidance. Under
said law, WM service fees may be computed based on minimum factors
41 sq. m. – 60 sq. m. PHP 50.00 such as type s of solid waste to include special waste, amount/volume of
waste, distance of the transfer station to the waste management facility,
61 sq. m. – 100 sq. m. PHP 75.00 capacity or type of LGU constituency, cost of construction, cost of
management, and type of technology. With respect to utility rates set by
municipalities, a municipality has the right to classify consumers under
101 sq. m. – 150 sq. m. PH₱100.00 reasonable classifications based upon factors such as the cost of service,
the purpose for which the service or the product is received, the quantity
151 sq. m. – 200 sq. [m.] or more PHP 200.00 or the amount received, the different character of the service furnished, the
time of its use or any other matter which presents a substantial difference
as a ground of distinction.161[A] lack of uniformity in the rate charged is
On high-rise Condominium Units not necessarily unlawful discrimination. The establishment of classifications
and the charging of different rates for the several classes is not
a) High-rise Condominium – The Homeowners Association of high rise unreasonable and does not violate the requirements of equality and
condominiums shall pay the annual garbage fee on the total size of the uniformity. Discrimination to be unlawful must draw an unfair line or
entire condominium and socialized Housing Unit and an additional garbage strike an unfair balance between those in like circumstances having equal
fee shall be collected based on area occupied for every unit already so ld or rights and privileges. Discrimination with respect to rates charged does not
being amortized. vitiate unless it is arbitrary and without a reasonable fact basis or
justification.162
b) High-rise apartment units – Owners of high-rise apartment units shall
pay the annual garbage fee on the total lot size of the entire apartment and On top of an unreasonable classification, the penalty clause of Ordinance
an additional garbage fee based on the schedule prescribed herein for every No. SP-2235, which states:
unit occupied.
SECTION 3. Penalty Clause – A penalty of 25% of the garbage fee due
For the purpose of garbage collection, there is, in fact, no substantial plus an interest of 2% per month or a fraction thereof (interest) shall be
distinction between an occupant of a lot, on one hand, and an occupant of charged against a household owner who refuses to pay the garbage fee
a unit in a condominium, socialized housing project or apartment, on the herein imposed. lacks the limitation required by Section 168 of the LGC,
other hand. Most likely, garbage output produced by these types of which provides:
occupants is uniform and does not vary to a large degree; thus, a similar
schedule of fee is both just and equitable.159 SECTION 168. Surcharges and Penalties on Unpaid Taxes, Fees, or
Charges. – The sanggunian may impose a surcharge not exceeding twenty-
The rates being charged by the ordinance are unjust and inequitable: a five (25%) of the amount of taxes, fees or charges not paid on time and an
resident of a 200 sq. m. unit in a condominium or socialized housing interest at the rate not exceeding two percent (2%) per month of the
project has to pay twice the amount than a resident of a lot similar in size; unpaid taxes, fees or charges including surcharges, until such amount is
47
fully paid but in no case shall the total interest on the unpaid amount or
portion thereof exceed thirty-six (36) months. (Emphasis supplied)
Finally, on the issue of publication of the two challenged ordinances.
Petitioner argues that the garbage fee was collected even if the required
publication of its approval had not yet elapsed. He notes that he paid his
realty tax on January 7, 2014 which already included the garbage fee.
Respondents counter that if the law provides for its own effectivity,
publication in the Official Gazette is not necessary so long as it is not penal
in nature. Allegedly, Ordinance No. SP-2095 took effect after its
publication while Ordinance No. SP-2235 became effective after its
approval on December 26, 2013.
The pertinent provisions of the LGC state:
SECTION 59. Effectivity of Ordinances or Resolutions. – (a) Unless
otherwise stated in the ordinance or the resolution approving the local
development plan and public investment program, the same shall take
effect after ten (10) days from the date a copy thereof is posted in a bulletin
board at the entrance of the provincial capital or city, municipal, or
barangay hall, as the case may be, and in at least two (2) other conspicuous
places in the local government unit concerned.
(b) The secretary to the sanggunian concerned shall cause the posting of an
ordinance or resolution in the bulletin board at the entrance of the
provincial capital and the city, municipal, or barangay hall in at least two
(2) conspicuous places in the local government unit concerned not later
than five (5) days after approval thereof.
The text of the ordinance or resolution shall be disseminated and posted in
Filipino or English and in the language or dialect understood by the
majority of the people in the local government unit concerned, and the
secretary to the sanggunian shall record such fact in a book kept for the
purpose, stating the dates of approval and posting.
(c) The gist of all ordinances with penal sanctions shall be published in a
newspaper of general circulation within the province where the local
legislative body concerned belongs. In the absence of any newspaper of
general circulation within the province, posting of such ordinances shall be
made in all municipalities and cities of the province where the sanggunian
of origin is situated.
(d) In the case of highly urbanized and independent component cities, the
main features of the ordinance or resolution duly enacted or adopted shall,
in addition to being posted, be published once in a local newspaper of
general circulation within the city: Provided, That in the absence thereof
the ordinance or resolution shall be published in any newspaper of general
circulation.
SECTION 188. Publication of Tax Ordinances and Revenue Measures. –
Within ten (10) days after their approval, certified true copies of all
provincial, city, and municipal tax ordinances or revenue measures shall be
published in full for three (3) consecutive days in a newspaper of local
circulation: Provided, however, That in provinces, cities and municipalities
where there are no newspapers of local circulation, the same may be posted
in at least two (2) conspicuous and publicly accessible places. (Emphasis
supplied)
On October 17, 2011, respondent Quezon City Council enacted Ordinance
No. SP-2095, which provides that it would take effect after its publication
in a newspaper of general circulation.163 On the other hand, Ordinance No.
SP-2235, which was passed by the City Council on December 16, 2013,
provides that it would be effective upon its approval.164
Ten (10) days after its enactment, or on December 26, 2013, respondent
City Mayor approved the same.165
The case records are bereft of any evidence to prove petitioner’s negative
allegation that respondents did not comply with the posting and
publication requirements of the law. Thus, We are constrained not to give
credit to his unsupported claim.
WHEREFORE, the petition is PARTIALLY GRANTED. The
constitutionality and legality of Ordinance No. SP-2095, S-2011, or the
"Socialized Housing Tax of Quezon City," is· SUSTAINED for being
consistent ·with Section·43 of Republic Act No. ·7279. On the other hand,
Ordinance No. SP-2235, S-2013, which collects an annual garbage fee on
all domestic households in Quezon City, is hereby declared as
UNCONSTITUTIONAL AND ILLEGAL. Respondents are
DIRECTED to REFUND with reasonable dispatch the sums of money
collected relative to its enforcement. The temporary restraining order
issued by the Court on February 5, 2014 is LIFTED with respect to
Ordinance No. SP-2095. In contrast, respondents are PERMANENTLY
ENJOINED from taking any further action to enforce Ordinance No. SP.
2235.
SO ORDERED.
G.R. No. 177807 October 11, 2011
EMILIO GANCAYCO, Petitioner,
vs.
CITY GOVERNMENT OF QUEZON CITY AND METRO
MANILA DEVELOPMENT AUTHORITY, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 177933
METRO MANILA DEVELOPMENT AUTHORITY, Petitioner,
vs.
JUSTICE EMILIO A. GANCAYCO (Retired), Respondent,
DECISION
SERENO, J.:
Before us are consolidated Petitions for Review under Rule 45 of the Rules
of Court assailing the Decision1 promulgated on 18 July 2006 and the
Resolution2 dated 10 May 2007 of the Court of Appeals in CA-G.R. SP
No. 84648.
The Facts
In the early 1950s, retired Justice Emilio A. Gancayco bought a parcel of
land located at 746 Epifanio delos Santos Avenue (EDSA), 3 Quezon City
with an area of 375 square meters and covered by Transfer Certificate of
Title (TCT) No. RT114558.
On 27 March 1956, the Quezon City Council issued Ordinance No. 2904,
entitled "An Ordinance Requiring the Construction of Arcades, for
Commercial Buildings to be Constructed in Zones Designated as Business
Zones in the Zoning Plan of Quezon City, and Providing Penalties in
Violation Thereof."4
An arcade is defined as any portion of a building above the first floor
projecting over the sidewalk beyond the first storey wall used as protection
for pedestrians against rain or sun.5
Ordinance No. 2904 required the relevant property owner to construct an
arcade with a width of 4.50 meters and height of 5.00 meters along EDSA,
from the north side of Santolan Road to one lot after Liberty Avenue, and
from one lot before Central Boulevard to the Botocan transmission line.
At the outset, it bears emphasis that at the time Ordinance No. 2904 was
passed by the city council, there was yet no building code passed by the
national legislature. Thus, the regulation of the construction of buildings
was left to the discretion of local government units. Under this particular
ordinance, the city council required that the arcade is to be created by
constructing the wall of the ground floor facing the sidewalk a few meters
away from the property line. Thus, the building owner is not allowed to
construct his wall up to the edge of the property line, thereby creating a
space or shelter under the first floor. In effect, property owners relinquish
48
the use of the space for use as an arcade for pedestrians, instead of using it
for their own purposes.
The ordinance was amended several times. On 8 August 1960, properties
located at the Quezon City-San Juan boundary were exempted by
Ordinance No. 60-4477 from the construction of arcades. This ordinance
was further amended by Ordinance No. 60-4513, extending the exemption
to commercial buildings from Balete Street to Seattle Street. Ordinance No.
6603 dated 1 March 1966 meanwhile reduced the width of the arcades to
three meters for buildings along V. Luna Road, Central District, Quezon
City.
The ordinance covered the property of Justice Gancayco. Subsequently,
sometime in 1965, Justice Gancayco sought the exemption of a two-storey
building being constructed on his property from the application of
Ordinance No. 2904 that he be exempted from constructing an arcade on
his property.
On 2 February 1966, the City Council acted favorably on Justice
Gancayco’s request and issued Resolution No. 7161, S-66, "subject to the
condition that upon notice by the City Engineer, the owner shall, within
reasonable time, demolish the enclosure of said arcade at his own expense
when public interest so demands."6
Decades after, in March 2003, the Metropolitan Manila Development
Authority (MMDA) conducted operations to clear obstructions along the
sidewalk of EDSA in Quezon City pursuant to Metro Manila Council’s
(MMC) Resolution No. 02-28, Series of 2002.7 The resolution authorized
the MMDA and local government units to "clear the sidewalks, streets,
avenues, alleys, bridges, parks and other public places in Metro Manila of
all illegal structures and obstructions."8
On 28 April 2003, the MMDA sent a notice of demolition to Justice
Gancayco alleging that a portion of his building violated the National
Building Code of the Philippines (Building Code)9 in relation to Ordinance
No. 2904. The MMDA gave Justice Gancayco fifteen (15) days to clear the
portion of the building that was supposed to be an arcade along EDSA. 10
Justice Gancayco did not comply with the notice. Soon after the lapse of
the fifteen (15) days, the MMDA proceeded to demolish the party wall, or
what was referred to as the "wing walls," of the ground floor structure. The
records of the present case are not entirely clear on the extent of the
demolition; nevertheless, the fact of demolition was not disputed. At the
time of the demolition, the affected portion of the building was being used
as a restaurant.
On 29 May 2003, Justice Gancayco filed a Petition11 with prayer for a
temporary restraining order and/or writ of preliminary injunction before
the Regional Trial Court (RTC) of Quezon City, docketed as Civil Case
No. Q03-49693, seeking to prohibit the MMDA and the City Government
of Quezon City from demolishing his property. In his Petition,12 he alleged
that the ordinance authorized the taking of private property without due
process of law and just compensation, because the construction of an
arcade will require 67.5 square meters from the 375 square meter property.
In addition, he claimed that the ordinance was selective and discriminatory
in its scope and application when it allowed the owners of the buildings
located in the Quezon City-San Juan boundary to Cubao Rotonda, and
Balete to Seattle Streets to construct arcades at their option. He thus
sought the declaration of nullity of Ordinance No. 2904 and the payment
of damages. Alternately, he prayed for the payment of just compensation
should the court hold the ordinance valid.
The City Government of Quezon City claimed that the ordinance was a
valid exercise of police power, regulating the use of property in a business
zone. In addition, it pointed out that Justice Gancayco was already barred
by estoppel, laches and prescription.
Similarly, the MMDA alleged that Justice Gancayco could not seek the
nullification of an ordinance that he had already violated, and that the
ordinance enjoyed the presumption of constitutionality. It further stated
that the questioned property was a public nuisance impeding the safe
passage of pedestrians. Finally, the MMDA claimed that it was merely
implementing the legal easement established by Ordinance No. 2904.13
The RTC rendered its Decision on 30 September 2003 in favor of Justice
Gancayco.14 It held that the questioned ordinance was unconstitutional,
ruling that it allowed the taking of private property for public use without
just compensation. The RTC said that because 67.5 square meters out of
Justice Gancayco’s 375 square meters of property were being taken without
compensation for the public’s benefit, the ordinance was confiscatory and
oppressive. It likewise held that the ordinance violated owners’ right to
equal protection of laws. The dispositive portion thus states:
WHEREFORE, the petition is hereby granted and the Court hereby
declares Quezon City Ordinance No. 2094,15 Series of 1956 to be
unconstitutional, invalid and void ab initio. The respondents are hereby
permanently enjoined from enforcing and implementing the said
ordinance, and the respondent MMDA is hereby directed to immediately
restore the portion of the party wall or wing wall of the building of the
petitioner it destroyed to its original condition.
IT IS SO ORDERED.
The MMDA thereafter appealed from the Decision of the trial court. On
18 July 2006, the Court of Appeals (CA) partly granted the appeal.16 The
CA upheld the validity of Ordinance No. 2904 and lifted the injunction
against the enforcement and implementation of the ordinance. In so doing,
it held that the ordinance was a valid exercise of the right of the local
government unit to promote the general welfare of its constituents
pursuant to its police powers. The CA also ruled that the ordinance
established a valid classification of property owners with regard to the
construction of arcades in their respective properties depending on the
location. The CA further stated that there was no taking of private
property, since the owner still enjoyed the beneficial ownership of the
property, to wit:
Even with the requirement of the construction of arcaded sidewalks within
his commercial lot, appellee still retains the beneficial ownership of the said
property. Thus, there is no "taking" for public use which must be subject
to just compensation. While the arcaded sidewalks contribute to the public
good, for providing safety and comfort to passersby, the ultimate benefit
from the same still redounds to appellee, his commercial establishment
being at the forefront of a busy thoroughfare like EDSA. The arcaded
sidewalks, by their nature, assure clients of the commercial establishments
thereat some kind of protection from accidents and other hazards. Without
doubt, this sense of protection can be a boon to the business activity
therein engaged. 17
Nevertheless, the CA held that the MMDA went beyond its powers when
it demolished the subject property. It further found that Resolution No.
02-28 only refers to sidewalks, streets, avenues, alleys, bridges, parks and
other public places in Metro Manila, thus excluding Justice Gancayco’s
private property. Lastly, the CA stated that the MMDA is not clothed with
the authority to declare, prevent or abate nuisances. Thus, the dispositive
portion stated:
WHEREFORE, the appeals are PARTLY GRANTED. The Decision
dated September 30, 2003 of the Regional Trial Court, Branch 224,
Quezon City, is MODIFIED, as follows:
1) The validity and constitutionality of Ordinance No. 2094,18 Series of
1956, issued by the City Council of Quezon City, is UPHELD; and
2) The injunction against the enforcement and implementation of the said
Ordinance is LIFTED.
SO ORDERED.
This ruling prompted the MMDA and Justice Gancayco to file their
respective Motions for Partial Reconsideration.19
On 10 May 2007, the CA denied the motions stating that the parties did
not present new issues nor offer grounds that would merit the
reconsideration of the Court.20
Dissatisfied with the ruling of the CA, Justice Gancayco and the MMDA
filed their respective Petitions for Review before this Court. The issues
raised by the parties are summarized as follows:
49

I. WHETHER OR NOT JUSTICE GANCAYCO WAS ESTOPPED
FROM ASSAILING THE VALIDITY OF ORDINANCE NO. 2904.
II. WHETHER OR NOT ORDINANCE NO. 2904 IS
CONSTITUTIONAL.
III. WHETHER OR NOT THE WING WALL OF JUSTICE
GANCAYCO’S BUILDING IS A PUBLIC NUISANCE.
IV. WHETHER OR NOT THE MMDA LEGALLY DEMOLISHED
THE PROPERTY OF JUSTICE GANCAYCO.
The Court’s Ruling
Estoppel
The MMDA and the City Government of Quezon City both claim that
Justice Gancayco was estopped from challenging the ordinance, because, in
1965, he asked for an exemption from the application of the ordinance.
According to them, Justice Gancayco thereby recognized the power of the
city government to regulate the construction of buildings.
To recall, Justice Gancayco questioned the constitutionality of the
ordinance on two grounds: (1) whether the ordinance "takes" private
property without due process of law and just compensation; and (2)
whether the ordinance violates the equal protection of rights because it
allowed exemptions from its application.
On the first ground, we find that Justice Gancayco may still question the
constitutionality of the ordinance to determine whether or not the
ordinance constitutes a "taking" of private property without due process of
law and just compensation. It was only in 2003 when he was allegedly
deprived of his property when the MMDA demolished a portion of the
building. Because he was granted an exemption in 1966, there was no
"taking" yet to speak of.
Moreover, in Acebedo Optical Company, Inc. v. Court of Appeals,21 we
held:
It is therefore decisively clear that estoppel cannot apply in this case. The
fact that petitioner acquiesced in the special conditions imposed by the City
Mayor in subject business permit does not preclude it from challenging the
said imposition, which is ultra vires or beyond the ambit of authority of
respondent City Mayor. Ultra vires acts or acts which are clearly beyond the
scope of one's authority are null and void and cannot be given any effect.
The doctrine of estoppel cannot operate to give effect to an act which is
otherwise null and void or ultra vires. (Emphasis supplied.)
Recently, in British American Tobacco v. Camacho,22 we likewise held:
We find that petitioner was not guilty of estoppel. When it made the
undertaking to comply with all issuances of the BIR, which at that time it
considered as valid, petitioner did not commit any false misrepresentation
or misleading act. Indeed, petitioner cannot be faulted for initially
undertaking to comply with, and subjecting itself to the operation of
Section 145(C), and only later on filing the subject case praying for the
declaration of its unconstitutionality when the circumstances change and
the law results in what it perceives to be unlawful discrimination. The mere
fact that a law has been relied upon in the past and all that time has not
been attacked as unconstitutional is not a ground for considering petitioner
estopped from assailing its validity. For courts will pass upon a
constitutional question only when presented before it in bona fide cases for
determination, and the fact that the question has not been raised before is
not a valid reason for refusing to allow it to be raised later. (Emphasis
supplied.)
Anent the second ground, we find that Justice Gancayco may not question
the ordinance on the ground of equal protection when he also benefited
from the exemption. It bears emphasis that Justice Gancayco himself
requested for an exemption from the application of the ordinance in 1965
and was eventually granted one. Moreover, he was still enjoying the
exemption at the time of the demolition as there was yet no valid notice
from the city engineer. Thus, while the ordinance may be attacked with
regard to its different treatment of properties that appears to be similarly
situated, Justice Gancayco is not the proper person to do so.
Zoning and the regulation of the construction of buildings are
validexercises of police power .
In MMDA v. Bel-Air Village Association,23 we discussed the nature of
police powers exercised by local government units, to wit:
Police power is an inherent attribute of sovereignty. It has been defined as
the power vested by the Constitution in the legislature to make, ordain, and
establish all manner of wholesome and reasonable laws, statutes and
ordinances, either with penalties or without, not repugnant to the
Constitution, as they shall judge to be for the good and welfare of the
commonwealth, and for the subjects of the same. The power is plenary and
its scope is vast and pervasive, reaching and justifying measures for public
health, public safety, public morals, and the general welfare.
It bears stressing that police power is lodged primarily in the National
Legislature. It cannot be exercised by any group or body of individuals not
possessing legislative power. The National Legislature, however, may
delegate this power to the President and administrative boards as well as
the lawmaking bodies of municipal corporations or local government units.
Once delegated, the agents can exercise only such legislative powers as are
conferred on them by the national lawmaking body.
To resolve the issue on the constitutionality of the ordinance, we must first
determine whether there was a valid delegation of police power. Then we
can determine whether the City Government of Quezon City acted within
the limits of the delegation.
It is clear that Congress expressly granted the city government, through the
city council, police power by virtue of Section 12(oo) of Republic Act No.
537, or the Revised Charter of Quezon City,24 which states:
To make such further ordinances and regulations not repugnant to law as
may be necessary to carry into effect and discharge the powers and duties
conferred by this Act and such as it shall deem necessary and proper to
provide for the health and safety, promote the prosperity, improve the
morals, peace, good order, comfort, and convenience of the city and the
inhabitants thereof, and for the protection of property therein; and enforce
obedience thereto with such lawful fines or penalties as the City Council
may prescribe under the provisions of subsection (jj) of this section.
Specifically, on the powers of the city government to regulate the
construction of buildings, the Charter also expressly provided that the city
government had the power to regulate the kinds of buildings and structures
that may be erected within fire limits and the manner of constructing and
repairing them.25
With regard meanwhile to the power of the local government units to issue
zoning ordinances, we apply Social Justice Society v. Atienza.26 In that case,
the Sangguniang Panlungsod of Manila City enacted an ordinance on 28
November 2001 reclassifying certain areas of the city from industrial to
commercial. As a result of the zoning ordinance, the oil terminals located
in those areas were no longer allowed. Though the oil companies
contended that they stood to lose billions of pesos, this Court upheld the
power of the city government to pass the assailed ordinance, stating:
In the exercise of police power, property rights of individuals may be
subjected to restraints and burdens in order to fulfil the objectives of the
government. Otherwise stated, the government may enact legislation that
may interfere with personal liberty, property, lawful businesses and
occupations to promote the general welfare. However, the interference
must be reasonable and not arbitrary. And to forestall arbitrariness, the
methods or means used to protect public health, morals, safety or welfare
must have a reasonable relation to the end in view.
The means adopted by the Sanggunian was the enactment of a zoning
ordinance which reclassified the area where the depot is situated from
industrial to commercial. A zoning ordinance is defined as a local city or
municipal legislation which logically arranges, prescribes, defines and
apportions a given political subdivision into specific land uses as present
and future projection of needs. As a result of the zoning, the continued
operation of the businesses of the oil companies in their present location
will no longer be permitted. The power to establish zones for industrial,
50
commercial and residential uses is derived from the police power itself and
is exercised for the protection and benefit of the residents of a locality.
Consequently, the enactment of Ordinance No. 8027 is within the power
of the Sangguniang Panlungsod of the City of Manila and any resulting burden
on those affected cannot be said to be unjust... (Emphasis supplied)
In Carlos Superdrug v. Department of Social Welfare and
Development,27 we also held:
For this reason, when the conditions so demand as determined by the
legislature, property rights must bow to the primacy of police power
because property rights, though sheltered by due process, must yield to
general welfare.
Police power as an attribute to promote the common good would be
diluted considerably if on the mere plea of petitioners that they will suffer
loss of earnings and capital, the questioned provision is invalidated.
Moreover, in the absence of evidence demonstrating the alleged
confiscatory effect of the provision in question, there is no basis for its
nullification in view of the presumption of validity which every law has in
its favor. (Emphasis supplied.)
In the case at bar, it is clear that the primary objectives of the city council
of Quezon City when it issued the questioned ordinance ordering the
construction of arcades were the health and safety of the city and its
inhabitants; the promotion of their prosperity; and the improvement of
their morals, peace, good order, comfort, and the convenience. These
arcades provide safe and convenient passage along the sidewalk for
commuters and pedestrians, not just the residents of Quezon City. More
especially so because the contested portion of the building is located on a
busy segment of the city, in a business zone along EDSA.
Corollarily, the policy of the Building Code,28 which was passed after the
Quezon City Ordinance, supports the purpose for the enactment of
Ordinance No. 2904. The Building Code states:
Section 102. Declaration of Policy. – It is hereby declared to be the policy
of the State to safeguard life, health, property, and public welfare,
consistent with the principles of sound environmental management and
control; and to this end, make it the purpose of this Code to provide for all
buildings and structures, a framework of minimum standards and
requirements to regulate and control their location, site, design quality of
materials, construction, occupancy, and maintenance.
Section 1004 likewise requires the construction of arcades whenever
existing or zoning ordinances require it. Apparently, the law allows the
local government units to determine whether arcades are necessary within
their respective jurisdictions.
Justice Gancayco argues that there is a three-meter sidewalk in front of his
property line, and the arcade should be constructed above that sidewalk
rather than within his property line. We do not need to address this
argument inasmuch as it raises the issue of the wisdom of the city
ordinance, a matter we will not and need not delve into.
To reiterate, at the time that the ordinance was passed, there was no
national building code enforced to guide the city council; thus, there was
no law of national application that prohibited the city council from
regulating the construction of buildings, arcades and sidewalks in their
jurisdiction.
The "wing walls" of the building are notnuisances per se.
The MMDA claims that the portion of the building in question is a
nuisance per se.
We disagree.
The fact that in 1966 the City Council gave Justice Gancayco an exemption
from constructing an arcade is an indication that the wing walls of the
building are not nuisances per se. The wing walls do not per se immediately
and adversely affect the safety of persons and property. The fact that an
ordinance may declare a structure illegal does not necessarily make that
structure a nuisance.
Article 694 of the Civil Code defines nuisance as any act, omission,
establishment, business, condition or property, or anything else that (1)
injures or endangers the health or safety of others; (2) annoys or offends
the senses; (3) shocks, defies or disregards decency or morality; (4)
obstructs or interferes with the free passage of any public highway or
street, or any body of water; or, (5) hinders or impairs the use of property.
A nuisance may be per se or per accidens. A nuisance per se is that which
affects the immediate safety of persons and property and may summarily
be abated under the undefined law of necessity. 29
Clearly, when Justice Gancayco was given a permit to construct the
building, the city council or the city engineer did not consider the building,
or its demolished portion, to be a threat to the safety of persons and
property. This fact alone should have warned the MMDA against
summarily demolishing the structure.
Neither does the MMDA have the power to declare a thing a nuisance.
Only courts of law have the power to determine whether a thing is a
nuisance. In AC Enterprises v. Frabelle Properties Corp., 30 we held:
We agree with petitioner's contention that, under Section 447(a)(3)(i) of
R.A. No. 7160, otherwise known as the Local Government Code,
the Sangguniang Panglungsod is empowered to enact ordinances declaring,
preventing or abating noise and other forms of nuisance. It bears stressing,
however, that the Sangguniang Bayan cannot declare a particular thing as a
nuisance per se and order its condemnation. It does not have the power to
find, as a fact, that a particular thing is a nuisance when such thing is not a
nuisance per se; nor can it authorize the extrajudicial condemnation and
destruction of that as a nuisance which in its nature, situation or use is not
such. Those things must be determined and resolved in the ordinary courts
of law. If a thing be in fact, a nuisance due to the manner of its operation,
that question cannot be determined by a mere resolution of the Sangguniang
Bayan. (Emphasis supplied.)
MMDA illegally demolished the property of Justice Gancayco.
MMDA alleges that by virtue of MMDA Resolution No. 02-28, Series of
2002, it is empowered to demolish Justice Gancayco’s property. It insists
that the Metro Manila Council authorized the MMDA and the local
government units to clear the sidewalks, streets, avenues, alleys, bridges,
parks and other public places in Metro Manila of all illegal structures and
obstructions. It further alleges that it demolished the property pursuant to
the Building Code in relation to Ordinance No. 2904 as amended.
However, the Building Code clearly provides the process by which a
building may be demolished. The authority to order the demolition of any
structure lies with the Building Official. The pertinent provisions of the
Building Code provide:
SECTION 205. Building Officials. — Except as otherwise provided
herein, the Building Official shall be responsible for carrying out the
provisions of this Code in the field as well as the enforcement of orders
and decisions made pursuant thereto.
Due to the exigencies of the service, the Secretary may designate
incumbent Public Works District Engineers, City Engineers and Municipal
Engineers act as Building Officials in their respective areas of jurisdiction.
The designation made by the Secretary under this Section shall continue
until regular positions of Building Official are provided or unless sooner
terminated for causes provided by law or decree.
xxx xxx xxx
SECTION 207. Duties of a Building Official. — In his respective
territorial jurisdiction, the Building Official shall be primarily responsible
for the enforcement of the provisions of this Code as well as of the
implementing rules and regulations issued therefor. He is the official
charged with the duties of issuing building permits.
In the performance of his duties, a Building Official may enter any building
or its premises at all reasonable times to inspect and determine compliance
51
with the requirements of this Code, and the terms and conditions provided
for in the building permit as issued.
When any building work is found to be contrary to the provisions of this
Code, the Building Official may order the work stopped and prescribe the
terms and/or conditions when the work will be allowed to resume.
Likewise, the Building Official is authorized to order the discontinuance of
the occupancy or use of any building or structure or portion thereof found
to be occupied or used contrary to the provisions of this Code.
xxx xxx xxx
SECTION 215. Abatement of Dangerous Buildings. — When any building
or structure is found or declared to be dangerous or ruinous, the Building
Official shall order its repair, vacation or demolition depending upon the
degree of danger to life, health, or safety. This is without prejudice to
further action that may be taken under the provisions of Articles 482 and
694 to 707 of the Civil Code of the Philippines. (Emphasis supplied.)
MMDA v. Trackworks Rail Transit Advertising, Vending and Promotions,
Inc.31 is applicable to the case at bar. In that case, MMDA, invoking its
charter and the Building Code, summarily dismantled the advertising media
installed on the Metro Rail Transit (MRT) 3. This Court held:
It is futile for MMDA to simply invoke its legal mandate to justify the
dismantling of Trackworks' billboards, signages and other advertising
media. MMDA simply had no power on its own to dismantle, remove, or
destroy the billboards, signages and other advertising media installed on the
MRT3 structure by Trackworks. In Metropolitan Manila Development Authority
v. Bel-Air Village Association, Inc., Metropolitan Manila Development Authority v.
Viron Transportation Co., Inc., and Metropolitan Manila Development Authority v.
Garin, the Court had the occasion to rule that MMDA's powers were
limited to the formulation, coordination, regulation, implementation,
preparation, management, monitoring, setting of policies, installing a
system, and administration. Nothing in Republic Act No. 7924 granted
MMDA police power, let alone legislative power.
Clarifying the real nature of MMDA, the Court held:
...The MMDA is, as termed in the charter itself, a "development authority".
It is an agency created for the purpose of laying down policies and
coordinating with the various national government agencies, people's
organizations, non-governmental organizations and the private sector for
the efficient and expeditious delivery of basic services in the vast
metropolitan area. All its functions are administrative in nature and these are
actually summed up in the charter itself, viz:
Sec.2. Creation of the Metropolitan Manila Development Authority.- xxx.
The MMDA shall perform planning, monitoring and coordinative
functions, and in the process exercise regulatory and supervisory authority
over the delivery of metro-wide services within Metro Manila, without
diminution of the autonomy of local government units concerning purely
local matters.
The Court also agrees with the CA's ruling that MMDA Regulation No. 96-
009 and MMC Memorandum Circular No. 88-09 did not apply to
Trackworks' billboards, signages and other advertising media. The
prohibition against posting, installation and display of billboards, signages
and other advertising media applied only to public areas, but MRT3, being
private property pursuant to the BLT agreement between the Government
and MRTC, was not one of the areas as to which the prohibition applied.
Moreover, MMC Memorandum Circular No. 88-09 did not apply to
Trackworks' billboards, signages and other advertising media in MRT3,
because it did not specifically cover MRT3, and because it was issued a year
prior to the construction of MRT3 on the center island of EDSA. Clearly,
MMC Memorandum Circular No. 88-09 could not have included MRT3 in
its prohibition.
MMDA's insistence that it was only implementing Presidential Decree No.
1096 (Building Code) and its implementing rules and regulations is not
persuasive. The power to enforce the provisions of the Building Code was
lodged in the Department of Public Works and Highways (DPWH), not in
MMDA, considering the law's following provision, thus:
Sec. 201. Responsibility for Administration and Enforcement. -
The administration and enforcement of the provisions of this Code
including the imposition of penalties for administrative violations thereof is
hereby vested in the Secretary of Public Works, Transportation and
Communications, hereinafter referred to as the "Secretary."
There is also no evidence showing that MMDA had been delegated by
DPWH to implement the Building Code. (Emphasis supplied.)
Additionally, the penalty prescribed by Ordinance No. 2904 itself does not
include the demolition of illegally constructed buildings in case of
violations. Instead, it merely prescribes a punishment of "a fine of not
more than two hundred pesos (₱200.00) or by imprisonment of not more
than thirty (30) days, or by both such fine and imprisonment at the
discretion of the Court, Provided, that if the violation is committed by a
corporation, partnership, or any juridical entity, the Manager, managing
partner, or any person charged with the management thereof shall be held
responsible therefor." The ordinance itself also clearly states that it is the
regular courts that will determine whether there was a violation of the
ordinance.
As pointed out in Trackworks, the MMDA does not have the power to
enact ordinances. Thus, it cannot supplement the provisions of Quezon
City Ordinance No. 2904 merely through its Resolution No. 02-28.
Lastly, the MMDA claims that the City Government of Quezon City may
be considered to have approved the demolition of the structure, simply
because then Quezon City Mayor Feliciano R. Belmonte signed MMDA
Resolution No. 02-28. In effect, the city government delegated these
powers to the MMDA. The powers referred to are those that include the
power to declare, prevent and abate a nuisance 32 and to further impose the
penalty of removal or demolition of the building or structure by the owner
or by the city at the expense of the owner.33
MMDA’s argument does not hold water. There was no valid delegation of
powers to the MMDA. Contrary to the claim of the MMDA, the City
Government of Quezon City washed its hands off the acts of the former.
In its Answer,34 the city government stated that "the demolition was
undertaken by the MMDA only, without the participation and/or consent
of Quezon City." Therefore, the MMDA acted on its own and should be
held solely liable for the destruction of the portion of Justice Gancayco’s
building.
WHEREFORE, in view of the foregoing, the Decision of the Court of
Appeals in CA-G.R. SP No. 84648 is AFFIRMED.
SO ORDERED.
G.R. No. 100152 March 31, 2000
ACEBEDO OPTICAL COMPANY, INC., petitioner,
vs.
THE HONORABLE COURT OF APPEALS, Hon. MAMINDIARA
MANGOTARA, in his capacity as Presiding Judge of the RTC, 12th
Judicial Region, Br. 1, Iligan City; SAMAHANG OPTOMETRIST
Sa PILIPINAS — Iligan City Chapter, LEO T. CAHANAP, City
Legal Officer, and Hon. CAMILO P. CABILI, City Mayor of
Iligan, respondents.
PURISIMA, J.:
At bar is a petition for review under Rule 45 of the Rules of Court seeking
to nullify the dismissal by the Court of Appeals of the original petition
for certiorari, prohibition and mandamus filed by the herein petitioner against
the City Mayor and City Legal Officer of Iligan and the Samahang
Optometrist sa Pilipinas — Iligan Chapter (SOPI, for brevity).
The antecedent facts leading to the filing of the instant petition are as
follows:
Petitioner applied with the Office of the City Mayor of Iligan for a business
permit. After consideration of petitioner's application and the opposition
52
interposed thereto by local optometrists, respondent City Mayor issued
Business Permit No. 5342 subject to the following conditions:
1. Since it is a corporation, Acebedo cannot put up an optical clinic but
only a commercial store;
2. Acebedo cannot examine and/or prescribe reading and similar optical
glasses for patients, because these are functions of optical clinics;
3. Acebedo cannot sell reading and similar eyeglasses without a prescription
having first been made by an independent optometrist (not its employee)
or independent optical clinic. Acebedo can only sell directly to the public,
without need of a prescription, Ray-Ban and similar eyeglasses;
4. Acebedo cannot advertise optical lenses and eyeglasses, but can advertise
Ray-Ban and similar glasses and frames;
5. Acebedo is allowed to grind lenses but only upon the prescription of an
independent optometrist. 1
On December 5, 1988, private respondent Samahan ng Optometrist Sa
Pilipinas (SOPI), Iligan Chapter, through its Acting President, Dr. Frances
B. Apostol, lodged a complaint against the petitioner before the Office of
the City Mayor, alleging that Acebedo had violated the conditions set forth
in its business permit and requesting the cancellation and/or revocation of
such permit.
Acting on such complaint, then City Mayor Camilo P. Cabili designated
City Legal Officer Leo T. Cahanap to conduct an investigation on the
matter. On July 12, 1989, respondent City Legal Officer submitted a report
to the City Mayor finding the herein petitioner guilty of violating all the
conditions of its business permit and recommending the disqualification of
petitioner from operating its business in Iligan City. The report further
advised that no new permit shall be granted to petitioner for the year 1989
and should only be given time to wind up its affairs.
On July 19, 1989, the City Mayor sent petitioner a Notice of Resolution
and Cancellation of Business Permit effective as of said date and giving
petitioner three (3) months to wind up its affairs.
On October 17, 1989, petitioner brought a petition for certiorari, prohibition
and mandamus with prayer for restraining order/preliminary injunction
against the respondents, City Mayor, City Legal Officer and Samahan ng
Optometrists sa Pilipinas-Iligan City Chapter (SOPI), docketed as Civil
Case No. 1497 before the Regional Trial Court of Iligan City, Branch I.
Petitioner alleged that (1) it was denied due process because it was not
given an opportunity to present its evidence during the investigation
conducted by the City Legal Officer; (2) it was denied equal protection of
the laws as the limitations imposed on its business permit were not
imposed on similar businesses in Iligan City; (3) the City Mayor had no
authority to impose the special conditions on its business permit; and (4)
the City Legal Officer had no authority to conduct the investigation as the
matter falls within the exclusive jurisdiction of the Professional Regulation
Commission and the Board of Optometry.
Respondent SOPI interposed a Motion to Dismiss the Petition on the
ground of non-exhaustion of administrative remedies but on November
24, 1989, Presiding Judge Mamindiara P. Mangotara deferred resolution of
such Motion to Dismiss until after trial of the case on the merits. However,
the prayer for a writ of preliminary injunction was granted. Thereafter,
respondent SOPI filed its answer.1âwphi1.nêt
On May 30, 1990, the trial court dismissed the petition for failure to
exhaust administrative remedies, and dissolved the writ of preliminary
injunction it earlier issued. Petitioner's motion for reconsideration met the
same fate. It was denied by an Order dated June 28, 1990.
On October 3, 1990, instead of taking an appeal, petitioner filed a petition
for certiorari, prohibition and mandamus with the Court of Appeals seeking
to set aside the questioned Order of Dismissal, branding the same as
tainted with grave abuse of discretion on the part of the trial court.
On January 24, 1991, the Ninth Division 2 of the Court of Appeals
dismissed the petition for lack of merit. Petitioner's motion reconsideration
was also denied in the Resolution dated May 15, 1991.
Undaunted, petitioner has come before this court via the present petition,
theorizing that:
A.
THE RESPONDENT COURT, WHILE CORRECTLY HOLDING
THAT THE RESPONDENT CITY MAYOR ACTED BEYOND HIS
AUTHORITY IN IMPOSING THE SPECIAL CONDITIONS IN THE
PERMIT AS THEY HAD NO BASIS IN ANY LAW OR
ORDINANCE, ERRED IN HOLDING THAT THE SAID SPECIAL
CONDITIONS NEVERTHELESS BECAME BINDING ON
PETITIONER UPON ITS ACCEPTANCE THEREOF AS A PRIVATE
AGREEMENT OR CONTRACT.
B.
THE RESPONDENT COURT OF APPEALS ERRED IN HOLDING
THAT THE CONTRACT BETWEEN PETITIONER AND THE CITY
OF ILIGAN WAS ENTERED INTO BY THE LATTER IN THE
PERFORMANCE OF ITS PROPRIETARY FUNCTIONS.
The petition is impressed with merit.
Although petitioner agrees with the finding of the Court of Appeals that
respondent City Mayor acted beyond the scope of his authority in imposing
the assailed conditions in subject business permit, it has excepted to the
ruling of the Court of Appeals that the said conditions nonetheless became
binding on petitioner, once accepted, as a private agreement or contract.
Petitioner maintains that the said special conditions are null and void for
being ultra vires and cannot be given effect; and therefore, the principle of
estoppel cannot apply against it.
On the other hand, the public respondents, City Mayor and City Legal
Officer, private respondent SOPI and the Office of the Solicitor General
contend that as a valid exercise of police power, respondent City Mayor has
the authority to impose, as he did, special conditions in the grant of
business permits.
Police power as an inherent attribute of sovereignty is the power to
prescribe regulations to promote the health, morals, peace, education, good
order or safety and general welfare of the people. 9 The State, through the
legislature, has delegated the exercise of police power to local government
units, as agencies of the State, in order to effectively accomplish and carry
out the declared objects of their creation. 4 This delegation of police power
is embodied in the general welfare clause of the Local Government Code
which provides:
Sec. 6. 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.
The scope of police power has been held to be so comprehensive as to
encompass almost all matters affecting the health, safety, peace, order,
morals, comfort and convenience of the community. Police power is
essentially regulatory in nature and the power to issue licenses or grant
business permits, if exercised for a regulatory and not revenue-raising
purpose, is within the ambit of this power. 5
The authority of city mayors to issue or grant licenses and business permits
is beyond cavil. It is provided for by law. Section 171, paragraph 2 (n) of
Batas Pambansa Bilang 337 otherwise known as the Local Government
Code of 1983, reads:
Sec. 171. The City Mayor shall:
xxx xxx xxx
n) Grant or refuse to grant, pursuant to law, city licenses or permits, and
revoke the same for violation of law or ordinance or the conditions upon
which they are granted.
53
However, the power to grant or issue licenses or business permits must
always be exercised in accordance with law, with utmost observance of the
rights of all concerned to due process and equal protection of the law.
Succinct and in point is the ruling of this Court, that:
. . . While a business may be regulated, such regulation must, however, be
within the bounds of reason, i.e., the regulatory ordinance must be
reasonable, and its provision cannot be oppressive amounting to an
arbitrary interference with the business or calling subject of regulation. A
lawful business or calling may not, under the guise of regulation, be
unreasonably interfered with even by the exercise of police power. . . .
xxx xxx xxx
. . . The exercise of police power by the local government is valid unless it
contravenes the fundamental law of the land or an act of the legislature, or
unless it is against public policy or is unreasonable, oppressive, partial,
discriminating or in derogation of a common right. 6
In the case under consideration, the business permit granted by respondent
City Mayor to petitioner was burdened with several conditions. Petitioner
agrees with the holding by the Court of Appeals that respondent City
Mayor acted beyond his authority in imposing such special conditions in its
permit as the same have no basis in the law or ordinance. Public
respondents and private respondent SOPI, on the other hand, are one in
saying that the imposition of said special conditions on petitioner's
business permit is well within the authority of the City Mayor as a valid
exercise of police power.
As aptly discussed by the Solicitor General in his Comment, the power to
issue licenses and permits necessarily includes the corollary power to
revoke, withdraw or cancel the same. And the power to revoke or cancel,
likewise includes the power to restrict through the imposition of certain
conditions. In the case of Austin-Hardware, Inc. vs. Court of Appeals, 7 it was
held that the power to license carries with it the authority to provide
reasonable terms and conditions under which the licensed business shall be
conducted. As the Solicitor General puts it:
If the City Mayor is empowered to grant or refuse to grant a license, which
is a broader power, it stands to reason that he can also exercise a lesser
power that is reasonably incidental to his express power, i.e. to restrict a
license through the imposition of certain conditions, especially so that
there is no positive prohibition to the exercise of such prerogative by the
City Mayor, nor is there any particular official or body vested with such
authority. 8
However, the present inquiry does not stop there, as the Solicitor General
believes. The power or authority of the City Mayor to impose conditions or
restrictions in the business permit is indisputable. What petitioner assails
are the conditions imposed in its particular case which, it complains,
amount to a confiscation of the business in which petitioner is engaged.
Distinction must be made between the grant of a license or permit to do
business and the issuance of a license to engage in the practice of a
particular profession. The first is usually granted by the local authorities
and the second is issued by the Board or Commission tasked to regulate
the particular profession. A business permit authorizes the person, natural
or otherwise, to engage in business or some form of commercial activity. A
professional license, on the other hand, is the grant of authority to a natural
person to engage in the practice or exercise of his or her profession.
In the case at bar, what is sought by petitioner from respondent City Mayor
is a permit to engage in the business of running an optical shop. It does not
purport to seek a license to engage in the practice of optometry as a
corporate body or entity, although it does have in its employ, persons who
are duly licensed to practice optometry by the Board of Examiners in
Optometry.
The case of Samahan ng Optometrists sa Pilipinas vs. Acebedo International
Corporation, G.R. No. 117097, 9 promulgated by this Court on March 21,
1997, is in point. The factual antecedents of that case are similar to those of
the case under consideration and the issue ultimately resolved therein is
exactly the same issue posed for resolution by this Court en banc.
In the said case, the Acebedo International Corporation filed with the
Office of the Municipal Mayor an application for a business permit for the
operation of a branch of Acebedo Optical in Candon, Ilocos Sur. The
application was opposed by the Samahan ng Optometrists sa Pilipinas-
Ilocos Sur Chapter, theorizing that Acebedo is a juridical entity not
qualified to practice optometry. A committee was created by the Office of
the Mayor to study private respondent's application. Upon
recommendation of the said committee, Acebedo's application for a
business permit was denied. Acebedo filed a petition with the Regional
Trial Court but the same was dismissed. On appeal, however, the Court of
Appeals reversed the trial court's disposition, prompting the Samahan ng
Optometrists to elevate the matter to this Court.
The First Division of this Court, then composed of Honorable Justice
Teodoro Padilla, Josue Bellosillo, Jose Vitug and Santiago Kapunan, with
Honorable Justice Regino Hermosisima, Jr. as ponente, denied the petition
and ruled in favor of respondent Acebedo International Corporation,
holding that "the fact that private respondent hires optometrists who
practice their profession in the course of their employment in private
respondent's optical shops, does not translate into a practice of optometry
by private respondent itself," 10 The Court further elucidated that in both
the old and new Optometry Law, R.A. No. 1998, superseded by R.A. No.
8050, it is significant to note that there is no prohibition against the hiring
by corporations of optometrists. The Court concluded thus:
All told, there is no law that prohibits the hiring by corporations
of optometrists or considers the hiring by corporations of
optometrists as a practice by the corporation itself of the
profession of optometry.
In the present case, the objective of the imposition of subject conditions
on petitioner's business permit could be attained by requiring the
optometrists in petitioner's employ to produce a valid certificate of
registration as optometrist, from the Board of Examiners in Optometry. A
business permit is issued primarily to regulate the conduct of business and
the City Mayor cannot, through the issuance of such permit, regulate the
practice of a profession, like that of optometry. Such a function is within
the exclusive domain of the administrative agency specifically empowered
by law to supervise the profession, in this case the Professional Regulations
Commission and the Board of Examiners in Optometry.
It is significant to note that during the deliberations of the bicameral
conference committee of the Senate and the House of Representatives on
R.A. 8050 (Senate Bill No. 1998 and House Bill No. 14100), the committee
failed to reach a consensus as to the prohibition on indirect practice of
optometry by corporations. The proponent of the bill, former Senator
Freddie Webb, admitted thus:
Senator Webb: xxx xxx xxx
The focus of contention remains to be the proposal of prohibiting the
indirect practice of optometry by corporations.1âwphi1 We took a second
look and even a third look at the issue in the bicameral conference, but a
compromise remained elusive. 11
Former Senator Leticia Ramos-Shahani likewise voted her reservation in
casting her vote:
Senator Shahani: Mr. President.
The optometry bills have evoked controversial views from the members of
the panel. While we realize the need to uplift the standards of optometry as
a profession, the consesnsus of both Houses was to avoid touching
sensitive issues which properly belong to judicial determination. Thus, the
bicameral conference committee decided to leave the issue of indirect
practice of optometry and the use of trade names open to the wisdom of
the Courts which are vested with the prerogative of interpreting the laws. 12
From the foregoing, it is thus evident that Congress has not adopted a
unanimous position on the matter of prohibition of indirect practice of
optometry by corporations, specifically on the hiring and employment of
licensed optometrists by optical corporations. It is clear that Congress left
the resolution of such issue for judicial determination, and it is therefore
proper for this Court to resolve the issue.
54
Even in the United States, jurisprudence varies and there is a conflict of
opinions among the federal courts as to the right of a corporation or
individual not himself licensed, to hire and employ licensed optometrists. 13
Courts have distinguished between optometry as a learned profession in
the category of law and medicine, and optometry as a mechanical art. And,
insofar as the courts regard optometry as merely a mechanical art, they
have tended to find nothing objectionable in the making and selling of
eyeglasses, spectacles and lenses by corporations so long as the patient is
actually examined and prescribed for by a qualified practitioner. 14
The primary purpose of the statute regulating the practice of optometry is
to insure that optometrical services are to be rendered by competent and
licensed persons in order to protect the health and physical welfare of the
people from the dangers engendered by unlicensed practice. Such purpose
may be fully accomplished although the person rendering the service is
employed by a corporation. 15
Furthermore, it was ruled that the employment of a qualified optometrist
by a corporation is not against public policy. 16 Unless prohibited by
statutes, a corporation has all the contractual rights that an individual
has 17 and it does not become the practice of medicine or optometry
because of the presence of a physician or optometrist. 18 The
manufacturing, selling, trading and bartering of eyeglasses and spectacles as
articles of merchandise do not constitute the practice of optometry. 19
In the case of Dvorine vs. Castelberg Jewelry Corporation, 20 defendant
corporation conducted as part of its business, a department for the sale of
eyeglasses and the furnishing of optometrical services to its clients. It
employed a registered optometrist who was compensated at a regular salary
and commission and who was furnished instruments and appliances
needed for the work, as well as an office. In holding that corporation was
not engaged in the practice of optometry, the court ruled that there is no
public policy forbidding the commercialization of optometry, as in law and
medicine, and recognized the general practice of making it a commercial
business by advertising and selling eyeglasses.
To accomplish the objective of the regulation, a state may provide by
statute that corporations cannot sell eyeglasses, spectacles, and lenses
unless a duly licensed physician or a duly qualified optometrist is in charge
of, and in personal attendance at the place where such articles are sold. 21 In
such a case, the patient's primary and essential safeguard lies in the
optometrist's control of the "treatment" by means of prescription and
preliminary and final examination. 22
In analogy, it is noteworthy that private hospitals are maintained by
corporations incorporated for the purpose of furnishing medical and
surgical treatment. In the course of providing such treatments, these
corporations employ physicians, surgeons and medical practitioners, in the
same way that in the course of manufacturing and selling eyeglasses, eye
frames and optical lenses, optical shops hire licensed optometrists to
examine, prescribe and dispense ophthalmic lenses. No one has ever
charged that these corporations are engaged in the practice of medicine.
There is indeed no valid basis for treating corporations engaged in the
business of running optical shops differently.
It also bears stressing, as petitioner has pointed out, that the public and
private respondents did not appeal from the ruling of the Court of
Appeals. Consequently, the holding by the Court of Appeals that the act of
respondent City Mayor in imposing the questioned special conditions on
petitioner's business permit is ultra vires cannot be put into issue here by the
respondents. It is well-settled that:
A party who has not appealed from the decision may not obtain any
affirmative relief from the appellate court other than what he had obtain
from the lower court, if any, whose decision is brought up on appeal. 23
. . . an appellee who is not an appellant may assign errors in his brief where
his purpose is to maintain the judgment on other grounds, but he cannot
seek modification or reversal of the judgment or affirmative relief unless he
has also appealed. 24
Thus, respondents' submission that the imposition of subject special
conditions on petitioner's business permit is not ultra vires cannot prevail
over the finding and ruling by the Court of Appeals from which they
(respondents) did not appeal.
Anent the second assigned error, petitioner maintains that its business
permit issued by the City Mayor is not a contract entered into by Iligan City
in the exercise of its proprietary functions, such that although petitioner
agreed to such conditions, it cannot be held in estoppel since ultra vires acts
cannot be given effect.
Respondents, on the other hand, agree with the ruling of the Court of
Appeals that the business permit in question is in the nature of a contract
between Iligan City and the herein petitioner, the terms and conditions of
which are binding upon agreement, and that petitioner is estopped from
questioning the same. Moreover, in the Resolution denying petitioner's
motion for reconsideration, the Court of Appeals held that the contract
between the petitioner and the City of Iligan was entered into by the latter
in the performance of its proprietary functions.
This Court holds otherwise. It had occasion to rule that a license or permit
is not in the nature of a contract but a special privilege.
. . . a license or a permit is not a contract between the sovereignty and the
licensee or permitee, and is not a property in the constitutional sense, as to
which the constitutional proscription against impairment of the obligation
of contracts may extend. A license is rather in the nature of a special
privilege, of a permission or authority to do what is within its terms. It is
not in any way vested, permanent or absolute. 25
It is therefore decisively clear that estoppel cannot apply in this case. The
fact that petitioner acquiesced in the special conditions imposed by the City
Mayor in subject business permit does not preclude it from challenging the
said imposition, which is ultra vires or beyond the ambit of authority of
respondent City Mayor. Ultra vires acts or acts which are clearly beyond the
scope of one's authority are null and void and cannot be given any effect.
The doctrine of estoppel cannot operate to give effect to an act which is
otherwise null and void or ultra vires.
The Court of Appeals erred in adjudging subject business permit as having
been issued by responded City Mayor in the performance of proprietary
functions of Iligan City. As hereinabove elaborated upon, the issuance of
business licenses and permits by a municipality or city is essentially
regulatory in nature. The authority, which devolved upon local government
units to issue or grant such licenses or permits, is essentially in the exercise
of the police power of the State within the contemplation of the general
welfare clause of the Local Government Code.
WHEREFORE, the petition is GRANTED; the Decision of the Court of
Appeals in CA-GR SP No. 22995 REVERSED: and the respondent City
Mayor is hereby ordered to reissue petitioner's business permit in
accordance with law and with this disposition. No pronouncement as to
costs.
SO ORDERED.
G.R. No. 118127 April 12, 2005
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the
City of Manila, HON. JOSELITO L. ATIENZA, in his capacity as
Vice-Mayor of the City of Manila and Presiding Officer of the City
Council of Manila, HON. ERNESTO A. NIEVA, HON.
GONZALO P. GONZALES, HON. AVELINO S. CAILIAN, HON.
ROBERTO C. OCAMPO, HON. ALBERTO DOMINGO, HON.
HONORIO U. LOPEZ, HON. FRANCISCO G. VARONA, JR.,
HON. ROMUALDO S. MARANAN, HON. NESTOR C. PONCE,
JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F.
CONCEPCION, JR., HON. ROMEO G. RIVERA, HON.
MANUEL M. ZARCAL, HON. PEDRO S. DE JESUS, HON.
BERNARDITO C. ANG, HON. MANUEL L. QUIN, HON.
JHOSEP Y. LOPEZ, HON. CHIKA G. GO, HON. VICTORIANO
A. MELENDEZ, HON. ERNESTO V.P. MACEDA, JR., HON.
ROLANDO P. NIETO, HON. DANILO V. ROLEDA, HON.
GERINO A. TOLENTINO, JR., HON. MA. PAZ E. HERRERA,
HON. JOEY D. HIZON, HON. FELIXBERTO D. ESPIRITU,
HON. KARLO Q. BUTIONG, HON. ROGELIO P. DELA PAZ,
HON. BERNARDO D. RAGAZA, HON. MA. CORAZON R.
55
CABALLES, HON. CASIMIRO C. SISON, HON. BIENVINIDO
M. ABANTE, JR., HON. MA. LOURDES M. ISIP, HON.
ALEXANDER S. RICAFORT, HON. ERNESTO F. RIVERA,
HON. LEONARDO L. ANGAT, and HON. JOCELYN B. DAWIS,
in their capacity as councilors of the City of Manila, Petitioner,
vs.
HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC,
Manila and MALATE TOURIST DEVELOPMENT
CORPORATION, Respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel good after and what is
immoral is what you feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if performed by
oneself, is less immoral than if performed by someone else, who would be
well-intentioned in his dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Court's commitment to the protection of morals is secondary to its
fealty to the fundamental law of the land. It is foremost a guardian of the
Constitution but not the conscience of individuals. And if it need be, the
Court will not hesitate to "make the hammer fall, and heavily" in the words
of Justice Laurel, and uphold the constitutional guarantees when faced with
laws that, though not lacking in zeal to promote morality, nevertheless fail
to pass the test of constitutionality.
The pivotal issue in this Petition1 under Rule 45 (then Rule 42) of the
Revised Rules on Civil Procedure seeking the reversal of the Decision2 in
Civil Case No. 93-66511 of the Regional Trial Court (RTC) of Manila,
Branch 18 (lower court),3 is the validity of Ordinance No. 7783
(the Ordinance) of the City of Manila.4
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation (MTDC) is a
corporation engaged in the business of operating hotels, motels, hostels
and lodging houses.5 It built and opened Victoria Court in Malate which
was licensed as a motel although duly accredited with the Department of
Tourism as a hotel.6 On 28 June 1993, MTDC filed a Petition for Declaratory
Relief with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining
Order7 (RTC Petition) with the lower court impleading as defendants, herein
petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L.
Atienza, and the members of the City Council of Manila (City
Council). MTDC prayed that the Ordinance, insofar as it includes motels
and inns as among its prohibited establishments, be declared invalid and
unconstitutional.8
Enacted by the City Council9 on 9 March 1993 and approved by petitioner
City Mayor on 30 March 1993, the said Ordinance is entitled–
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR
OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF
AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES
IN THE ERMITA-MALATE AREA, PRESCRIBING PENALTIES
FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES.10
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the
contrary notwithstanding, no person, partnership, corporation or entity
shall, in the Ermita-Malate area bounded by Teodoro M. Kalaw Sr.
Street in the North, Taft Avenue in the East, Vito Cruz Street in the South
and Roxas Boulevard in the West, pursuant to P.D. 499 be allowed or
authorized to contract and engage in, any business providing certain
forms of amusement, entertainment, services and facilities where
women are used as tools in entertainment and which tend to disturb
the community, annoy the inhabitants, and adversely affect the social
and moral welfare of the community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting in
behalf of the said officials are prohibited from issuing permits,
temporary or otherwise, or from granting licenses and accepting
payments for the operation of business enumerated in the preceding
section.
SEC. 3. Owners and/or operator of establishments engaged in, or
devoted to, the businesses enumerated in Section 1 hereof are
hereby given three (3) months from the date of approval of this
ordinance within which to wind up business operations or to transfer
to any place outside of the Ermita-Malate area or convert said
businesses to other kinds of business allowable within the area, such
as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined activities for
wholesome family entertainment that cater to both local and foreign
clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but also
of cultural shows, stage and theatrical plays, art exhibitions, concerts and
the like.
11. Businesses allowable within the law and medium intensity districts as
provided for in the zoning ordinances for Metropolitan Manila, except new
warehouse or open-storage depot, dock or yard, motor repair shop,
gasoline service station, light industry with any machinery, or funeral
establishments.
SEC. 4. Any person violating any provisions of this ordinance, shall
upon conviction, be punished by imprisonment of one (1) year or fine
of FIVE THOUSAND (P5,000.00) PESOS, or both, at the discretion of
the Court, PROVIDED, that in case of juridical person, the President, the
General Manager, or person-in-charge of operation shall be liable thereof;
PROVIDED FURTHER, that in case of subsequent violation and
conviction, the premises of the erring establishment shall be closed
and padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today, March 9,
1993.
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis
supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously and
improperly included in its enumeration of prohibited establishments,
motels and inns such as MTDC's Victoria Court considering that these
were not establishments for "amusement" or "entertainment" and they
were not "services or facilities for entertainment," nor did they use women
as "tools for entertainment," and neither did they "disturb the community,"
"annoy the inhabitants" or "adversely affect the social and moral welfare of
the community."11
56
MTDC further advanced that the Ordinance was invalid and
unconstitutional for the following reasons: (1) The City Council has no
power to prohibit the operation of motels as Section 458 (a) 4 (iv) 12 of the
Local Government Code of 1991 (the Code) grants to the City Council
only the power to regulate the establishment, operation and maintenance
of hotels, motels, inns, pension houses, lodging houses and other similar
establishments; (2) The Ordinance is void as it is violative of Presidential
Decree (P.D.) No. 49913 which specifically declared portions of the Ermita-
Malate area as a commercial zone with certain restrictions; (3)
The Ordinance does not constitute a proper exercise of police power as the
compulsory closure of the motel business has no reasonable relation to the
legitimate municipal interests sought to be protected; (4)
The Ordinance constitutes an ex post facto law by punishing the operation of
Victoria Court which was a legitimate business prior to its enactment; (5)
The Ordinance violates MTDC's constitutional rights in that: (a) it is
confiscatory and constitutes an invasion of plaintiff's property rights; (b)
the City Council has no power to find as a fact that a particular thing is a
nuisance per se nor does it have the power to extrajudicially destroy it; and
(6) The Ordinance constitutes a denial of equal protection under the law as
no reasonable basis exists for prohibiting the operation of motels and inns,
but not pension houses, hotels, lodging houses or other similar
establishments, and for prohibiting said business in the Ermita-Malate area
but not outside of this area.14
In their Answer15 dated 23 July 1993, petitioners City of Manila and Lim
maintained that the City Council had the power to "prohibit certain forms
of entertainment in order to protect the social and moral welfare of the
community" as provided for in Section 458 (a) 4 (vii) of the Local
Government Code,16 which reads, thus:
Section 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers of the city as provided
for under Section 22 of this Code, and shall:
....
(4) Regulate activities relative to the use of land, buildings and structures
within the city in order to promote the general welfare and for said purpose
shall:
....
(vii) Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical performances,
circuses, billiard pools, public dancing schools, public dance halls, sauna
baths, massage parlors, and other places for entertainment or amusement;
regulate such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in order to protect
the social and moral welfare of the community.
Citing Kwong Sing v. City of Manila,17 petitioners insisted that the power of
regulation spoken of in the above-quoted provision included the power to
control, to govern and to restrain places of exhibition and amusement. 18
Petitioners likewise asserted that the Ordinance was enacted by the City
Council of Manila to protect the social and moral welfare of the
community in conjunction with its police power as found in Article III,
Section 18(kk) of Republic Act No. 409,19 otherwise known as the Revised
Charter of the City of Manila (Revised Charter of Manila)20 which reads,
thus:
ARTICLE III
THE MUNICIPAL BOARD
. . .
Section 18. Legislative powers. – The Municipal Board shall have the
following legislative powers:
. . .
(kk) To enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity, and the promotion
of the morality, peace, good order, comfort, convenience, and general
welfare of the city and its inhabitants, and such others as may be necessary
to carry into effect and discharge the powers and duties conferred by this
chapter; and to fix penalties for the violation of ordinances which shall not
exceed two hundred pesos fine or six months' imprisonment, or both such
fine and imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption of
validity; hence, private respondent had the burden to prove its illegality or
unconstitutionality.21
Petitioners also maintained that there was no inconsistency between P.D.
499 and the Ordinance as the latter simply disauthorized certain forms of
businesses and allowed the Ermita-Malate area to remain a commercial
zone.22 The Ordinance, the petitioners likewise claimed, cannot be assailed
as ex post facto as it was prospective in operation.23 The Ordinance also did
not infringe the equal protection clause and cannot be denounced as class
legislation as there existed substantial and real differences between the
Ermita-Malate area and other places in the City of Manila.24
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge
Laguio) issued an ex-parte temporary restraining order against the
enforcement of the Ordinance.25 And on 16 July 1993, again in an intrepid
gesture, he granted the writ of preliminary injunction prayed for by
MTDC.26
After trial, on 25 November 1994, Judge Laguio rendered the
assailed Decision, enjoining the petitioners from implementing the Ordinance.
The dispositive portion of said Decision reads:27
WHEREFORE, judgment is hereby rendered declaring Ordinance No.
778[3], Series of 1993, of the City of Manila null and void, and making
permanent the writ of preliminary injunction that had been issued by this
Court against the defendant. No costs.
SO ORDERED.28
Petitioners filed with the lower court a Notice of Appeal29 on 12 December
1994, manifesting that they are elevating the case to this Court under then
Rule 42 on pure questions of law.30
On 11 January 1995, petitioners filed the present Petition, alleging that the
following errors were committed by the lower court in its ruling: (1) It
erred in concluding that the subject ordinance is ultra vires, or otherwise,
unfair, unreasonable and oppressive exercise of police power; (2) It erred in
holding that the questioned Ordinance contravenes P.D. 49931 which allows
operators of all kinds of commercial establishments, except those specified
therein; and (3) It erred in declaring the Ordinance void and
unconstitutional.32
In the Petition and in its Memorandum,33 petitioners in essence repeat the
assertions they made before the lower court. They contend that the
assailed Ordinance was enacted in the exercise of the inherent and plenary
power of the State and the general welfare clause exercised by local
government units provided for in Art. 3, Sec. 18 (kk) of the Revised
Charter of Manila and conjunctively, Section 458 (a) 4 (vii) of the
Code.34 They allege that the Ordinance is a valid exercise of police power; it
does not contravene P.D. 499; and that it enjoys the presumption of
validity.35
In its Memorandum36 dated 27 May 1996, private respondent maintains that
the Ordinance is ultra vires and that it is void for being repugnant to the
general law. It reiterates that the questioned Ordinance is not a valid exercise
of police power; that it is violative of due process, confiscatory and
amounts to an arbitrary interference with its lawful business; that it is
violative of the equal protection clause; and that it confers on petitioner
City Mayor or any officer unregulated discretion in the execution of
the Ordinance absent rules to guide and control his actions.
This is an opportune time to express the Court's deep sentiment and
tenderness for the Ermita-Malate area being its home for several decades.
A long-time resident, the Court witnessed the area's many turn of events. It
relished its glory days and endured its days of infamy. Much as the Court
harks back to the resplendent era of the Old Manila and yearns to restore
its lost grandeur, it believes that the Ordinance is not the fitting means to
57
that end. The Court is of the opinion, and so holds, that the lower court
did not err in declaring the Ordinance, as it did, ultra vires and therefore null
and void.
The Ordinance is so replete with constitutional infirmities that almost every
sentence thereof violates a constitutional provision. The prohibitions and
sanctions therein transgress the cardinal rights of persons enshrined by the
Constitution. The Court is called upon to shelter these rights from
attempts at rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions
has held that for an ordinance to be valid, it must not only be within the
corporate powers of the local government unit to enact and must be passed
according to the procedure prescribed by law, it must also conform to the
following substantive requirements: (1) must not contravene the
Constitution or any statute; (2) must not be unfair or oppressive; (3) must
not be partial or discriminatory; (4) must not prohibit but may regulate
trade; (5) must be general and consistent with public policy; and (6) must
not be unreasonable.37
Anent the first criterion, ordinances shall only be valid when they are not
contrary to the Constitution and to the laws.38 The Ordinance must satisfy
two requirements: it must pass muster under the test of constitutionality
and the test of consistency with the prevailing laws. That ordinances should
be constitutional uphold the principle of the supremacy of the
Constitution. The requirement that the enactment must not violate existing
law gives stress to the precept that local government units are able to
legislate only by virtue of their derivative legislative power, a delegation of
legislative power from the national legislature. The delegate cannot be
superior to the principal or exercise powers higher than those of the
latter.39
This relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution
strengthening the policy of local autonomy. The national legislature is still
the principal of the local government units, which cannot defy its will or
modify or violate it.40
The Ordinance was passed by the City Council in the exercise of its police
power, an enactment of the City Council acting as agent of Congress. Local
government units, as agencies of the State, are endowed with police power
in order to effectively accomplish and carry out the declared objects of
their creation.41 This delegated police power is found in Section 16 of the
Code, known as the general welfare clause, viz:
SECTION 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.
Local government units exercise police power through their respective
legislative bodies; in this case, the sangguniang panlungsod or the city council.
The Code empowers the legislative bodies to "enact ordinances, approve
resolutions and appropriate funds for the general welfare of the
province/city/municipality and its inhabitants pursuant to Section 16 of
the Code and in the proper exercise of the corporate powers of the
province/city/ municipality provided under the Code.42 The inquiry in this
Petition is concerned with the validity of the exercise of such delegated
power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-reaching, is
subordinate to the constitutional limitations thereon; and is subject to the
limitation that its exercise must be reasonable and for the public good. 43 In
the case at bar, the enactment of the Ordinance was an invalid exercise of
delegated power as it is unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty,
and property, and the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy.44
SEC. 14. The State recognizes the role of women in nation-building, and
shall ensure the fundamental equality before the law of women and men. 45
SEC. 1. No person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of
laws.46
Sec. 9. Private property shall not be taken for public use without just
compensation.47
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat "(N)o
person shall be deprived of life, liberty or property without due process of
law. . . ."48
There is no controlling and precise definition of due process. It furnishes
though a standard to which governmental action should conform in order
that deprivation of life, liberty or property, in each appropriate case, be
valid. This standard is aptly described as a responsiveness to the
supremacy of reason, obedience to the dictates of justice,49 and as such it is
a limitation upon the exercise of the police power.50
The purpose of the guaranty is to prevent governmental encroachment
against the life, liberty and property of individuals; to secure the individual
from the arbitrary exercise of the powers of the government, unrestrained
by the established principles of private rights and distributive justice; to
protect property from confiscation by legislative enactments, from seizure,
forfeiture, and destruction without a trial and conviction by the ordinary
mode of judicial procedure; and to secure to all persons equal and impartial
justice and the benefit of the general law.51
The guaranty serves as a protection against arbitrary regulation, and private
corporations and partnerships are "persons" within the scope of the
guaranty insofar as their property is concerned.52
This clause has been interpreted as imposing two separate limits on
government, usually called "procedural due process" and "substantive due
process."
Procedural due process, as the phrase implies, refers to the procedures that
the government must follow before it deprives a person of life, liberty, or
property. Classic procedural due process issues are concerned with what
kind of notice and what form of hearing the government must provide
when it takes a particular action.53
Substantive due process, as that phrase connotes, asks whether the
government has an adequate reason for taking away a person's life, liberty,
or property. In other words, substantive due process looks to whether
there is a sufficient justification for the government's action. 54 Case law in
the United States (U.S.) tells us that whether there is such a justification
depends very much on the level of scrutiny used. 55 For example, if a law is
in an area where only rational basis review is applied, substantive due
process is met so long as the law is rationally related to a legitimate
government purpose. But if it is an area where strict scrutiny is used, such
as for protecting fundamental rights, then the government will meet
substantive due process only if it can prove that the law is necessary to
achieve a compelling government purpose.56
The police power granted to local government units must always be
exercised with utmost observance of the rights of the people to due
58
process and equal protection of the law. Such power cannot be exercised
whimsically, arbitrarily or despotically57 as its exercise is subject to a
qualification, limitation or restriction demanded by the respect and regard
due to the prescription of the fundamental law, particularly those forming
part of the Bill of Rights. Individual rights, it bears emphasis, may be
adversely affected only to the extent that may fairly be required by the
legitimate demands of public interest or public welfare.58 Due process
requires the intrinsic validity of the law in interfering with the rights of the
person to his life, liberty and property.59
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the
enactment of the Ordinance, and to free it from the imputation of
constitutional infirmity, not only must it appear that the interests of the
public generally, as distinguished from those of a particular class, require an
interference with private rights, but the means adopted must be reasonably
necessary for the accomplishment of the purpose and not unduly
oppressive upon individuals.60 It must be evident that no other alternative
for the accomplishment of the purpose less intrusive of private rights can
work. A reasonable relation must exist between the purposes of the police
measure and the means employed for its accomplishment, for even under
the guise of protecting the public interest, personal rights and those
pertaining to private property will not be permitted to be arbitrarily
invaded.61
Lacking a concurrence of these two requisites, the police measure shall be
struck down as an arbitrary intrusion into private rights 62 a violation of
the due process clause.
The Ordinance was enacted to address and arrest the social ills purportedly
spawned by the establishments in the Ermita-Malate area which are
allegedly operated under the deceptive veneer of legitimate, licensed and
tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail lounges,
hotels and motels. Petitioners insist that even the Court in the case
of Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila63 had already taken judicial notice of the "alarming increase in the
rate of prostitution, adultery and fornication in Manila traceable in great
part to existence of motels, which provide a necessary atmosphere for
clandestine entry, presence and exit and thus become the ideal haven for
prostitutes and thrill-seekers."64
The object of the Ordinance was, accordingly, the promotion and protection
of the social and moral values of the community. Granting for the sake of
argument that the objectives of the Ordinance are within the scope of the
City Council's police powers, the means employed for the accomplishment
thereof were unreasonable and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to
make all reasonable regulations looking to the promotion of the moral and
social values of the community. However, the worthy aim of fostering
public morals and the eradication of the community's social ills can be
achieved through means less restrictive of private rights; it can be attained
by reasonable restrictions rather than by an absolute prohibition. The
closing down and transfer of businesses or their conversion into businesses
"allowed" under the Ordinance have no reasonable relation to the
accomplishment of its purposes. Otherwise stated, the prohibition of the
enumerated establishments will not per se protect and promote the social
and moral welfare of the community; it will not in itself eradicate the
alluded social ills of prostitution, adultery, fornication nor will it arrest the
spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of
ill-repute and establishments of the like which the City Council may
lawfully prohibit,65 it is baseless and insupportable to bring within that
classification sauna parlors, massage parlors, karaoke bars, night clubs, day
clubs, super clubs, discotheques, cabarets, dance halls, motels and inns.
This is not warranted under the accepted definitions of these terms. The
enumerated establishments are lawful pursuits which are not per se offensive
to the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs and as
venues to further the illegal prostitution is of no moment. We lay stress on
the acrid truth that sexual immorality, being a human frailty, may take place
in the most innocent of places that it may even take place in the substitute
establishments enumerated under Section 3 of the Ordinance. If the flawed
logic of the Ordinance were to be followed, in the remote instance that an
immoral sexual act transpires in a church cloister or a court chamber, we
would behold the spectacle of the City of Manila ordering the closure of
the church or court concerned. Every house, building, park, curb, street or
even vehicles for that matter will not be exempt from the prohibition.
Simply because there are no "pure" places where there are impure men.
Indeed, even the Scripture and the Tradition of Christians churches
continually recall the presence and universality of sin in man's history.66
The problem, it needs to be pointed out, is not the establishment, which by
its nature cannot be said to be injurious to the health or comfort of the
community and which in itself is amoral, but the deplorable human activity
that may occur within its premises. While a motel may be used as a venue
for immoral sexual activity, it cannot for that reason alone be punished. It
cannot be classified as a house of ill-repute or as a nuisance per se on a mere
likelihood or a naked assumption. If that were so and if that were allowed,
then the Ermita-Malate area would not only be purged of its supposed
social ills, it would be extinguished of its soul as well as every human
activity, reprehensible or not, in its every nook and cranny would be laid
bare to the estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the core issues
of morality. Try as the Ordinance may to shape morality, it should not foster
the illusion that it can make a moral man out of it because immorality is
not a thing, a building or establishment; it is in the hearts of men. The City
Council instead should regulate human conduct that occurs inside the
establishments, but not to the detriment of liberty and privacy which are
covenants, premiums and blessings of democracy.
While petitioners' earnestness at curbing clearly objectionable social ills is
commendable, they unwittingly punish even the proprietors and operators
of "wholesome," "innocent" establishments. In the instant case, there is a
clear invasion of personal or property rights, personal in the case of those
individuals desirous of owning, operating and patronizing those motels and
property in terms of the investments made and the salaries to be paid to
those therein employed. If the City of Manila so desires to put an end to
prostitution, fornication and other social ills, it can instead impose
reasonable regulations such as daily inspections of the establishments for
any violation of the conditions of their licenses or permits; it may exercise
its authority to suspend or revoke their licenses for these violations; 67 and it
may even impose increased license fees. In other words, there are other
means to reasonably accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors,
karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques,
cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section
3 thereof, owners and/or operators of the enumerated establishments are
given three (3) months from the date of approval of the Ordinance within
which "to wind up business operations or to transfer to any place outside
the Ermita-Malate area or convert said businesses to other kinds of
business allowable within the area." Further, it states in Section 4 that in
cases of subsequent violations of the provisions of the Ordinance, the
"premises of the erring establishment shall be closed and padlocked
permanently."
It is readily apparent that the means employed by the Ordinance for the
achievement of its purposes, the governmental interference itself, infringes
on the constitutional guarantees of a person's fundamental right to liberty
and property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm
to include "the right to exist and the right to be free from arbitrary restraint
or servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of
man to enjoy the facilities with which he has been endowed by his Creator,
subject only to such restraint as are necessary for the common
welfare."68 In accordance with this case, the rights of the citizen to be free
to use his faculties in all lawful ways; to live and work where he will; to earn
59
his livelihood by any lawful calling; and to pursue any avocation are all
deemed embraced in the concept of liberty.69
The U.S. Supreme Court in the case of Roth v. Board of Regents,70 sought to
clarify the meaning of "liberty." It said:
While the Court has not attempted to define with exactness the liberty. . .
guaranteed [by the Fifth and Fourteenth Amendments], the term denotes
not merely freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common occupations of life,
to acquire useful knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of his own conscience,
and generally to enjoy those privileges long recognized…as essential to the
orderly pursuit of happiness by free men. In a Constitution for a free
people, there can be no doubt that the meaning of "liberty" must be broad
indeed.
In another case, it also confirmed that liberty protected by the due process
clause includes personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education. In
explaining the respect the Constitution demands for the autonomy of the
person in making these choices, the U.S. Supreme Court explained:
These matters, involving the most intimate and personal choices a person
may make in a lifetime, choices central to personal dignity and autonomy,
are central to the liberty protected by the Fourteenth Amendment. At the
heart of liberty is the right to define one's own concept of existence, of
meaning, of universe, and of the mystery of human life. Beliefs about these
matters could not define the attributes of personhood where they formed
under compulsion of the State.71
Persons desirous to own, operate and patronize the enumerated
establishments under Section 1 of the Ordinance may seek autonomy for
these purposes.
Motel patrons who are single and unmarried may invoke this right to
autonomy to consummate their bonds in intimate sexual conduct within
the motel's premisesbe it stressed that their consensual sexual behavior
does not contravene any fundamental state policy as contained in the
Constitution.72 Adults have a right to choose to forge such relationships
with others in the confines of their own private lives and still retain their
dignity as free persons. The liberty protected by the Constitution allows
persons the right to make this choice.73 Their right to liberty under the due
process clause gives them the full right to engage in their conduct without
intervention of the government, as long as they do not run afoul of the law.
Liberty should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful
government restraint; it must include privacy as well, if it is to be a
repository of freedom. The right to be let alone is the beginning of all
freedomit is the most comprehensive of rights and the right most valued
by civilized men.74
The concept of liberty compels respect for the individual whose claim to
privacy and interference demands respect. As the case of Morfe v.
Mutuc,75 borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His
separateness, his isolation, are indefeasible; indeed, they are so fundamental
that they are the basis on which his civic obligations are built. He cannot
abandon the consequences of his isolation, which are, broadly speaking,
that his experience is private, and the will built out of that experience
personal to himself. If he surrenders his will to others, he surrenders
himself. If his will is set by the will of others, he ceases to be a master of
himself. I cannot believe that a man no longer a master of himself is in any
real sense free.
Indeed, the right to privacy as a constitutional right was recognized
in Morfe, the invasion of which should be justified by a compelling state
interest. Morfe accorded recognition to the right to privacy independently of
its identification with liberty; in itself it is fully deserving of constitutional
protection. Governmental powers should stop short of certain intrusions
into the personal life of the citizen.76
There is a great temptation to have an extended discussion on these civil
liberties but the Court chooses to exercise restraint and restrict itself to the
issues presented when it should. The previous pronouncements of the
Court are not to be interpreted as a license for adults to engage in criminal
conduct. The reprehensibility of such conduct is not diminished. The
Court only reaffirms and guarantees their right to make this choice. Should
they be prosecuted for their illegal conduct, they should suffer the
consequences of the choice they have made. That, ultimately, is their
choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially
divests the respondent of the beneficial use of its
property.77 The Ordinance in Section 1 thereof forbids the running of the
enumerated businesses in the Ermita-Malate area and in Section 3 instructs
its owners/operators to wind up business operations or to transfer outside
the area or convert said businesses into allowed businesses. An ordinance
which permanently restricts the use of property that it can not be used for
any reasonable purpose goes beyond regulation and must be recognized as
a taking of the property without just compensation.78 It is intrusive and
violative of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that "private
property shall not be taken for public use without just compensation." The
provision is the most important protection of property rights in the
Constitution. This is a restriction on the general power of the government
to take property. The constitutional provision is about ensuring that the
government does not confiscate the property of some to give it to others.
In part too, it is about loss spreading. If the government takes away a
person's property to benefit society, then society should pay. The principal
purpose of the guarantee is "to bar the Government from forcing some
people alone to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.79
There are two different types of taking that can be identified. A
"possessory" taking occurs when the government confiscates or physically
occupies property. A "regulatory" taking occurs when the government's
regulation leaves no reasonable economically viable use of the property.80
In the landmark case of Pennsylvania Coal v. Mahon,81 it was held that a taking
also could be found if government regulation of the use of property went
"too far." When regulation reaches a certain magnitude, in most if not in
all cases there must be an exercise of eminent domain and compensation to
support the act. While property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking.82
No formula or rule can be devised to answer the questions of what is too
far and when regulation becomes a taking. In Mahon, Justice Holmes
recognized that it was "a question of degree and therefore cannot be
disposed of by general propositions." On many other occasions as well, the
U.S. Supreme Court has said that the issue of when regulation constitutes a
taking is a matter of considering the facts in each case. The Court asks
whether justice and fairness require that the economic loss caused by
public action must be compensated by the government and thus borne by
the public as a whole, or whether the loss should remain concentrated on
those few persons subject to the public action. 83
What is crucial in judicial consideration of regulatory takings is that
government regulation is a taking if it leaves no reasonable economically
viable use of property in a manner that interferes with reasonable
expectations for use.84 A regulation that permanently denies all
economically beneficial or productive use of land is, from the owner's
point of view, equivalent to a "taking" unless principles of nuisance or
property law that existed when the owner acquired the land make the use
prohibitable.85 When the owner of real property has been called upon to
sacrifice all economically beneficial uses in the name of the common good,
that is, to leave his property economically idle, he has suffered a taking.86
A regulation which denies all economically beneficial or productive use of
land will require compensation under the takings clause. Where a regulation
places limitations on land that fall short of eliminating all economically
beneficial use, a taking nonetheless may have occurred, depending on a
60
complex of factors including the regulation's economic effect on the
landowner, the extent to which the regulation interferes with reasonable
investment-backed expectations and the character of government action.
These inquiries are informed by the purpose of the takings clause which is
to prevent the government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as
a whole.87
A restriction on use of property may also constitute a "taking" if not
reasonably necessary to the effectuation of a substantial public purpose or
if it has an unduly harsh impact on the distinct investment-backed
expectations of the owner.88
The Ordinance gives the owners and operators of the "prohibited"
establishments three (3) months from its approval within which to "wind
up business operations or to transfer to any place outside of the Ermita-
Malate area or convert said businesses to other kinds of business allowable
within the area." The directive to "wind up business operations" amounts
to a closure of the establishment, a permanent deprivation of property, and
is practically confiscatory. Unless the owner converts his establishment to
accommodate an "allowed" business, the structure which housed the
previous business will be left empty and gathering dust. Suppose he
transfers it to another area, he will likewise leave the entire establishment
idle. Consideration must be given to the substantial amount of money
invested to build the edifices which the owner reasonably expects to be
returned within a period of time. It is apparent that the Ordinance leaves no
reasonable economically viable use of property in a manner that interferes
with reasonable expectations for use.
The second and third options to transfer to any place outside of the
Ermita-Malate area or to convert into allowed businessesare confiscatory
as well. The penalty of permanent closure in cases of subsequent violations
found in Section 4 of the Ordinance is also equivalent to a "taking" of
private property.
The second option instructs the owners to abandon their property and
build another one outside the Ermita-Malate area. In every sense, it
qualifies as a taking without just compensation with an additional burden
imposed on the owner to build another establishment solely from his
coffers. The proffered solution does not put an end to the "problem," it
merely relocates it. Not only is this impractical, it is unreasonable, onerous
and oppressive. The conversion into allowed enterprises is just as
ridiculous. How may the respondent convert a motel into a restaurant or a
coffee shop, art gallery or music lounge without essentially destroying its
property? This is a taking of private property without due process of law,
nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be
compensated by the government. The burden on the owner to convert or
transfer his business, otherwise it will be closed permanently after a
subsequent violation should be borne by the public as this end benefits
them as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning
ordinance. A zoning ordinance, although a valid exercise of police power,
which limits a "wholesome" property to a use which can not reasonably be
made of it constitutes the taking of such property without just
compensation. Private property which is not noxious nor intended for
noxious purposes may not, by zoning, be destroyed without compensation.
Such principle finds no support in the principles of justice as we know
them. The police powers of local government units which have always
received broad and liberal interpretation cannot be stretched to cover this
particular taking.
Distinction should be made between destruction from necessity and
eminent domain. It needs restating that the property taken in the exercise
of police power is destroyed because it is noxious or intended for a noxious
purpose while the property taken under the power of eminent domain is
intended for a public use or purpose and is therefore "wholesome." 89 If it
be of public benefit that a "wholesome" property remain unused or
relegated to a particular purpose, then certainly the public should bear the
cost of reasonable compensation for the condemnation of private property
for public use.90
Further, the Ordinance fails to set up any standard to guide or limit the
petitioners' actions. It in no way controls or guides the discretion vested in
them. It provides no definition of the establishments covered by it and it
fails to set forth the conditions when the establishments come within its
ambit of prohibition. The Ordinance confers upon the mayor arbitrary and
unrestricted power to close down establishments. Ordinances such as this,
which make possible abuses in its execution, depending upon no
conditions or qualifications whatsoever other than the unregulated arbitrary
will of the city authorities as the touchstone by which its validity is to be
tested, are unreasonable and invalid. The Ordinance should have established
a rule by which its impartial enforcement could be secured.91
Ordinances placing restrictions upon the lawful use of property must, in
order to be valid and constitutional, specify the rules and conditions to be
observed and conduct to avoid; and must not admit of the exercise, or of
an opportunity for the exercise, of unbridled discretion by the law
enforcers in carrying out its provisions.92
Thus, in Coates v. City of Cincinnati,93 as cited in People v. Nazario,94 the U.S.
Supreme Court struck down an ordinance that had made it illegal for "three
or more persons to assemble on any sidewalk and there conduct
themselves in a manner annoying to persons passing by." The ordinance
was nullified as it imposed no standard at all "because one may never know
in advance what 'annoys some people but does not annoy others.' "
Similarly, the Ordinance does not specify the standards to ascertain which
establishments "tend to disturb the community," "annoy the inhabitants,"
and "adversely affect the social and moral welfare of the community." The
cited case supports the nullification of the Ordinance for lack of
comprehensible standards to guide the law enforcers in carrying out its
provisions.
Petitioners cannot therefore order the closure of the enumerated
establishments without infringing the due process clause. These lawful
establishments may be regulated, but not prevented from carrying on their
business. This is a sweeping exercise of police power that is a result of a
lack of imagination on the part of the City Council and which amounts to
an interference into personal and private rights which the Court will not
countenance. In this regard, we take a resolute stand to uphold the
constitutional guarantee of the right to liberty and property.
Worthy of note is an example derived from the U.S. of a reasonable
regulation which is a far cry from the ill-considered Ordinance enacted by
the City Council.
In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a comprehensive
ordinance regulating "sexually oriented businesses," which are defined to
include adult arcades, bookstores, video stores, cabarets, motels, and
theaters as well as escort agencies, nude model studio and sexual encounter
centers. Among other things, the ordinance required that such businesses
be licensed. A group of motel owners were among the three groups of
businesses that filed separate suits challenging the ordinance. The motel
owners asserted that the city violated the due process clause by failing to
produce adequate support for its supposition that renting room for fewer
than ten (10) hours resulted in increased crime and other secondary effects.
They likewise argued than the ten (10)-hour limitation on the rental of
motel rooms placed an unconstitutional burden on the right to freedom of
association. Anent the first contention, the U.S. Supreme Court held that
the reasonableness of the legislative judgment combined with a study
which the city considered, was adequate to support the city's determination
that motels permitting room rentals for fewer than ten (10 ) hours should
be included within the licensing scheme. As regards the second point, the
Court held that limiting motel room rentals to ten (10) hours will have no
discernible effect on personal bonds as those bonds that are formed from
the use of a motel room for fewer than ten (10) hours are not those that
have played a critical role in the culture and traditions of the nation by
cultivating and transmitting shared ideals and beliefs.
The ordinance challenged in the above-cited case merely regulated the
targeted businesses. It imposed reasonable restrictions; hence, its validity
was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila,96 it needs pointing out, is also different from this case in
that what was involved therein was a measure which regulated the mode in
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which motels may conduct business in order to put an end to practices
which could encourage vice and immorality. Necessarily, there was no valid
objection on due process or equal protection grounds as the ordinance did
not prohibit motels. The Ordinance in this case however is not a regulatory
measure but is an exercise of an assumed power to prohibit. 97
The foregoing premises show that the Ordinance is an unwarranted and
unlawful curtailment of property and personal rights of citizens. For being
unreasonable and an undue restraint of trade, it cannot, even under the
guise of exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should
be treated alike, both as to rights conferred and responsibilities imposed.
Similar subjects, in other words, should not be treated differently, so as to
give undue favor to some and unjustly discriminate against others. 98 The
guarantee means that no person or class of persons shall be denied the
same protection of laws which is enjoyed by other persons or other classes
in like circumstances.99 The "equal protection of the laws is a pledge of the
protection of equal laws."100 It limits governmental discrimination. The
equal protection clause extends to artificial persons but only insofar as their
property is concerned.101
The Court has explained the scope of the equal protection clause in this
wise:
… What does it signify? To quote from J.M. Tuason & Co. v.
Land Tenure Administration: "The ideal situation is for the law's
benefits to be available to all, that none be placed outside the
sphere of its coverage. Only thus could chance and favor be
excluded and the affairs of men governed by that serene and
impartial uniformity, which is of the very essence of the idea of
law." There is recognition, however, in the opinion that what in
fact exists "cannot approximate the ideal. Nor is the law
susceptible to the reproach that it does not take into account the
realities of the situation. The constitutional guarantee then is not
to be given a meaning that disregards what is, what does in fact
exist. To assure that the general welfare be promoted, which is the
end of law, a regulatory measure may cut into the rights to liberty
and property. Those adversely affected may under such
circumstances invoke the equal protection clause only if they can
show that the governmental act assailed, far from being inspired
by the attainment of the common weal was prompted by the
spirit of hostility, or at the very least, discrimination that finds no
support in reason." Classification is thus not ruled out, it being
sufficient to quote from the Tuason decision anew "that the laws
operate equally and uniformly on all persons under similar
circumstances or that all persons must be treated in the same
manner, the conditions not being different, both in the privileges
conferred and the liabilities imposed. Favoritism and undue
preference cannot be allowed. For the principle is that equal
protection and security shall be given to every person under
circumstances which, if not identical, are analogous. If law be
looked upon in terms of burden or charges, those that fall within
a class should be treated in the same fashion, whatever
restrictions cast on some in the group equally binding on the
rest.102
Legislative bodies are allowed to classify the subjects of legislation. If the
classification is reasonable, the law may operate only on some and not all
of the people without violating the equal protection clause.103 The
classification must, as an indispensable requisite, not be arbitrary. To be
valid, it must conform to the following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.104
In the Court's view, there are no substantial distinctions between motels,
inns, pension houses, hotels, lodging houses or other similar
establishments. By definition, all are commercial establishments providing
lodging and usually meals and other services for the public. No reason
exists for prohibiting motels and inns but not pension houses, hotels,
lodging houses or other similar establishments. The classification in the
instant case is invalid as similar subjects are not similarly treated, both as to
rights conferred and obligations imposed. It is arbitrary as it does not rest
on substantial distinctions bearing a just and fair relation to the purpose of
the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and
operation of motels in the Ermita-Malate area but not outside of this
area. A noxious establishment does not become any less noxious if located
outside the area.
The standard "where women are used as tools for entertainment" is also
discriminatory as prostitutionone of the hinted ills the Ordinance aims to
banishis not a profession exclusive to women. Both men and women
have an equal propensity to engage in prostitution. It is not any less grave a
sin when men engage in it. And why would the assumption that there is an
ongoing immoral activity apply only when women are employed and be
inapposite when men are in harness? This discrimination based on gender
violates equal protection as it is not substantially related to important
government objectives.105 Thus, the discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass
the test of consistency with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely
empowers local government units to regulate, and not prohibit, the
establishments enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment,
operation, and maintenance of motels, hotels and other similar
establishments is found in Section 458 (a) 4 (iv), which provides that:
Section 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers of the city as provided
for under Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures
within the city in order to promote the general welfare and for said purpose
shall:
. . .
(iv) Regulate the establishment, operation and maintenance of cafes,
restaurants, beerhouses, hotels, motels, inns, pension houses, lodging
houses, and other similar establishments, including tourist guides and
transports
. . .
While its power to regulate the establishment, operation and maintenance
of any entertainment or amusement facilities, and to prohibit certain forms
of amusement or entertainment is provided under Section 458 (a) 4 (vii) of
the Code, which reads as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers of the city as provided
for under Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures
within the city in order to promote the general welfare and for said purpose
shall:
. . .
(vii) Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical performances,
circuses, billiard pools, public dancing schools, public dance halls, sauna
baths, massage parlors, and other places for entertainment or amusement;
regulate such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in order to protect
the social and moral welfare of the community.
62
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns,
pension houses, lodging houses, and other similar establishments, the only
power of the City Council to legislate relative thereto is to regulate them to
promote the general welfare. The Code still withholds from cities the
power to suppress and prohibit altogether the establishment, operation and
maintenance of such establishments. It is well to recall the rulings of the
Court in Kwong Sing v. City of Manila106 that:
The word "regulate," as used in subsection (l), section 2444 of the
Administrative Code, means and includes the power to control, to govern,
and to restrain; but "regulate" should not be construed as synonymous with
"suppress" or "prohibit." Consequently, under the power to regulate
laundries, the municipal authorities could make proper police regulations as
to the mode in which the employment or business shall be exercised. 107
And in People v. Esguerra,108 wherein the Court nullified an ordinance of the
Municipality of Tacloban which prohibited the selling, giving and
dispensing of liquor ratiocinating that the municipality is empowered only
to regulate the same and not prohibit. The Court therein declared that:
(A)s a general rule when a municipal corporation is specifically given
authority or power to regulate or to license and regulate the liquor traffic,
power to prohibit is impliedly withheld.109
These doctrines still hold contrary to petitioners' assertion110 that they were
modified by the Code vesting upon City Councils prohibitory powers.
Similarly, the City Council exercises regulatory powers over public dancing
schools, public dance halls, sauna baths, massage parlors, and other places
for entertainment or amusement as found in the first clause of Section 458
(a) 4 (vii). Its powers to regulate, suppress and suspend "such other events
or activities for amusement or entertainment, particularly those which tend
to disturb the community or annoy the inhabitants" and to "prohibit
certain forms of amusement or entertainment in order to protect the social
and moral welfare of the community" are stated in the second and third
clauses, respectively of the same Section. The several powers of the City
Council as provided in Section 458 (a) 4 (vii) of the Code, it is pertinent to
emphasize, are separated by semi-colons (;), the use of which indicates that
the clauses in which these powers are set forth are independent of each
other albeit closely related to justify being put together in a single
enumeration or paragraph.111 These powers, therefore, should not be
confused, commingled or consolidated as to create a conglomerated and
unified power of regulation, suppression and prohibition.112
The Congress unequivocably specified the establishments and forms of
amusement or entertainment subject to regulation among which are
beerhouses, hotels, motels, inns, pension houses, lodging houses, and other
similar establishments (Section 458 (a) 4 (iv)), public dancing schools,
public dance halls, sauna baths, massage parlors, and other places for
entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration
therefore cannot be included as among "other events or activities for
amusement or entertainment, particularly those which tend to disturb the
community or annoy the inhabitants" or "certain forms of amusement or
entertainment" which the City Council may suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are expressly
granted to it and those which are necessarily implied or incidental to the
exercise thereof. By reason of its limited powers and the nature thereof,
said powers are to be construed strictissimi juris and any doubt or ambiguity
arising out of the terms used in granting said powers must be construed
against the City Council.113 Moreover, it is a general rule in statutory
construction that the express mention of one person, thing, or
consequence is tantamount to an express exclusion of all others. Expressio
unius est exclusio alterium. This maxim is based upon the rules of logic and the
natural workings of human mind. It is particularly applicable in the
construction of such statutes as create new rights or remedies, impose
penalties or punishments, or otherwise come under the rule of strict
construction.114
The argument that the City Council is empowered to enact the Ordinance by
virtue of the general welfare clause of the Code and of Art. 3, Sec. 18 (kk)
of the Revised Charter of Manila is likewise without merit. On the first
point, the ruling of the Court in People v. Esguerra,115 is instructive. It held
that:
The powers conferred upon a municipal council in the general welfare
clause, or section 2238 of the Revised Administrative Code, refers to
matters not covered by the other provisions of the same Code, and
therefore it can not be applied to intoxicating liquors, for the power to
regulate the selling, giving away and dispensing thereof is granted
specifically by section 2242 (g) to municipal councils. To hold that, under
the general power granted by section 2238, a municipal council may enact
the ordinance in question, notwithstanding the provision of section 2242
(g), would be to make the latter superfluous and nugatory, because the
power to prohibit, includes the power to regulate, the selling, giving away
and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later
expression of the legislative will must necessarily prevail and override the
earlier law, the Revised Charter of Manila. Legis posteriores priores contrarias
abrogant, or later statute repeals prior ones which are repugnant thereto. As
between two laws on the same subject matter, which are irreconcilably
inconsistent, that which is passed later prevails, since it is the latest
expression of legislative will.116 If there is an inconsistency or repugnance
between two statutes, both relating to the same subject matter, which
cannot be removed by any fair and reasonable method of interpretation, it
is the latest expression of the legislative will which must prevail and
override the earlier.117
Implied repeals are those which take place when a subsequently enacted
law contains provisions contrary to those of an existing law but no
provisions expressly repealing them. Such repeals have been divided into
two general classes: those which occur where an act is so inconsistent or
irreconcilable with an existing prior act that only one of the two can remain
in force and those which occur when an act covers the whole subject of an
earlier act and is intended to be a substitute therefor. The validity of such a
repeal is sustained on the ground that the latest expression of the legislative
will should prevail.118
In addition, Section 534(f) of the Code states that "All general and special
laws, acts, city charters, decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which are inconsistent
with any of the provisions of this Code are hereby repealed or modified
accordingly." Thus, submitting to petitioners' interpretation that the
Revised Charter of Manila empowers the City Council to prohibit motels,
that portion of the Charter stating such must be considered repealed by the
Code as it is at variance with the latter's provisions granting the City
Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under the
general welfare clause authorizing the abatement of nuisances without
judicial proceedings. That tenet applies to a nuisance per se, or one which
affects the immediate safety of persons and property and may be
summarily abated under the undefined law of necessity. It can not be said
that motels are injurious to the rights of property, health or comfort of the
community. It is a legitimate business. If it be a nuisance per accidens it may
be so proven in a hearing conducted for that purpose. A motel is not per
se a nuisance warranting its summary abatement without judicial
intervention.119
Notably, the City Council was conferred powers to prevent and prohibit
certain activities and establishments in another section of the Code which
is reproduced as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers of the city as provided
for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and
effective city government, and in this connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress and
impose appropriate penalties for habitual drunkenness in public places,
vagrancy, mendicancy, prostitution, establishment and maintenance
of houses of ill repute, gambling and other prohibited games of
chance, fraudulent devices and ways to obtain money or property, drug
63
addiction, maintenance of drug dens, drug pushing, juvenile delinquency,
the printing, distribution or exhibition of obscene or pornographic
materials or publications, and such other activities inimical to the welfare
and morals of the inhabitants of the city;
. . .
If it were the intention of Congress to confer upon the City Council the
power to prohibit the establishments enumerated in Section 1 of
the Ordinance, it would have so declared in uncertain terms by adding them
to the list of the matters it may prohibit under the above-quoted Section.
The Ordinance now vainly attempts to lump these establishments with
houses of ill-repute and expand the City Council's powers in the second
and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to
overreach its prohibitory powers. It is evident that these establishments
may only be regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the
establishments themselves. That these establishments are recognized
legitimate enterprises can be gleaned from another Section of the Code.
Section 131 under the Title on Local Government Taxation expressly
mentioned proprietors or operators of massage clinics, sauna, Turkish and
Swedish baths, hotels, motels and lodging houses as among the
"contractors" defined in paragraph (h) thereof. The same Section also
defined "amusement" as a "pleasurable diversion and entertainment,"
"synonymous to relaxation, avocation, pastime or fun;" and "amusement
places" to include "theaters, cinemas, concert halls, circuses and other
places of amusement where one seeks admission to entertain oneself by
seeing or viewing the show or performances." Thus, it can be inferred that
the Code considers these establishments as legitimate enterprises and
activities. It is well to recall the maxim reddendo singula singulis which means
that words in different parts of a statute must be referred to their
appropriate connection, giving to each in its place, its proper force and
effect, and, if possible, rendering none of them useless or superfluous, even
if strict grammatical construction demands otherwise. Likewise, where
words under consideration appear in different sections or are widely
dispersed throughout an act the same principle applies. 120
Not only does the Ordinance contravene the Code, it likewise runs counter
to the provisions of P.D. 499. As correctly argued by MTDC, the statute
had already converted the residential Ermita-Malate area into a commercial
area. The decree allowed the establishment and operation of all kinds of
commercial establishments except warehouse or open storage depot, dump
or yard, motor repair shop, gasoline service station, light industry with any
machinery or funeral establishment. The rule is that for an ordinance to be
valid and to have force and effect, it must not only be within the powers of
the council to enact but the same must not be in conflict with or repugnant
to the general law.121 As succinctly illustrated in Solicitor General v.
Metropolitan Manila Authority:122
The requirement that the enactment must not violate existing law explains
itself. Local political subdivisions are able to legislate only by virtue of a
valid delegation of legislative power from the national legislature (except
only that the power to create their own sources of revenue and to levy
taxes is conferred by the Constitution itself). They are mere agents vested
with what is called the power of subordinate legislation. As delegates of the
Congress, the local government units cannot contravene but must obey at
all times the will of their principal. In the case before us, the enactment in
question, which are merely local in origin cannot prevail against the decree,
which has the force and effect of a statute.123
Petitioners contend that the Ordinance enjoys the presumption of validity.
While this may be the rule, it has already been held that although the
presumption is always in favor of the validity or reasonableness of the
ordinance, such presumption must nevertheless be set aside when the
invalidity or unreasonableness appears on the face of the ordinance itself or
is established by proper evidence. The exercise of police power by the local
government is valid unless it contravenes the fundamental law of the land,
or an act of the legislature, or unless it is against public policy or is
unreasonable, oppressive, partial, discriminating or in derogation of a
common right.124
Conclusion
All considered, the Ordinance invades fundamental personal and property
rights and impairs personal privileges. It is constitutionally infirm.
The Ordinance contravenes statutes; it is discriminatory and unreasonable in
its operation; it is not sufficiently detailed and explicit that abuses may
attend the enforcement of its sanctions. And not to be forgotten, the City
Council under the Code had no power to enact the Ordinance and is
therefore ultra vires, null and void.
Concededly, the challenged Ordinance was enacted with the best of motives
and shares the concern of the public for the cleansing of the Ermita-Malate
area of its social sins. Police power legislation of such character deserves
the full endorsement of the judiciary we reiterate our support for it. But
inspite of its virtuous aims, the enactment of the Ordinance has no statutory
or constitutional authority to stand on. Local legislative bodies, in this case,
the City Council, cannot prohibit the operation of the enumerated
establishments under Section 1 thereof or order their transfer or
conversion without infringing the constitutional guarantees of due process
and equal protection of laws not even under the guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the
Regional Trial Court declaring the Ordinance void is AFFIRMED. Costs
against petitioners.
SO ORDERED.
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