G.R. No. 110120 March 16, 1994 Act No.
4850,5 as amended by Presidential Decree No. 813
LAGUNA LAKE DEVELOPMENT
AUTHORITY, petitioner,
vs.
COURT OF APPEALS, HON. MANUEL JN. SERAPIO,
Presiding Judge RTC, Branch 127, Caloocan City, HON.
MACARIO A. ASISTIO, JR., City Mayor of Caloocan
and/or THE CITY GOVERNMENT OF
CALOOCAN, respondents.
ROMERO, J.:
The clash between the responsibility of the City Government
of Caloocan to dispose off the 350 tons of garbage it collects
daily and the growing concern and sensitivity to a pollution-
free environment of the residents of Barangay Camarin, Tala
Estate, Caloocan City where these tons of garbage are dumped
everyday is the hub of this controversy elevated by the
protagonists to the Laguna Lake Development Authority
(LLDA) for adjudication.
The instant case stemmed from an earlier petition filed with
this Court by Laguna Lake Development Authority (LLDA for
short) docketed as G.R.
No. 107542 against the City Government of Caloocan, et al. In
the Resolution of November 10, 1992, this Court referred G.R.
No. 107542 to the Court of Appeals for appropriate
disposition. Docketed therein as CA-G.R. SP
No. 29449, the Court of Appeals, in a decision1 promulgated
on January 29, 1993 ruled that the LLDA has no power and
authority to issue a cease and desist order enjoining the
dumping of garbage in Barangay Camarin, Tala Estate,
Caloocan City. The LLDA now seeks, in this petition, a
review of the decision of the Court of Appeals.
The facts, as disclosed in the records, are undisputed.
On March 8, 1991, the Task Force Camarin Dumpsite of Our
Lady of Lourdes Parish, Barangay Camarin, Caloocan City,
filed a letter-complaint2 with the Laguna Lake Development
Authority seeking to stop the operation of the 8.6-hectare open
garbage dumpsite in Tala Estate, Barangay Camarin, Caloocan
City due to its harmful effects on the health of the residents
and the possibility of pollution of the water content of the
surrounding area.
On November 15, 1991, the LLDA conducted an on-site
investigation, monitoring and test sampling of the
leachate3 that seeps from said dumpsite to the nearby creek
which is a tributary of the Marilao River. The LLDA Legal
and Technical personnel found that the City Government of
Caloocan was maintaining an open dumpsite at the Camarin
area without first securing an Environmental Compliance
Certificate (ECC) from the Environmental Management
Bureau (EMB) of the Department of Environment and Natural
Resources, as required under Presidential Decree No.
1586,4 and clearance from LLDA as required under Republic
and Executive Order No. 927, series of 1983.6
After a public hearing conducted on December 4, 1991, the
LLDA, acting on the complaint of Task Force Camarin
Dumpsite, found that the water collected from the leachate and
the receiving streams could considerably affect the quality, in
turn, of the receiving waters since it indicates the presence of
bacteria, other than coliform, which may have contaminated
the sample during collection or handling. 7 On December 5,
1991, the LLDA issued a Cease and Desist Order 8 ordering the
City Government of Caloocan, Metropolitan Manila
Authority, their contractors, and other entities, to completely
halt, stop and desist from dumping any form or kind of
garbage and other waste matter at the Camarin dumpsite.
The dumping operation was forthwith stopped by the City
Government of Caloocan. However, sometime in August 1992
the dumping operation was resumed after a meeting held in
July 1992 among the City Government of Caloocan, the
representatives of Task Force Camarin Dumpsite and LLDA at
the Office of Environmental Management Bureau Director
Rodrigo U. Fuentes failed to settle the problem.
After an investigation by its team of legal and technical
personnel on August 14, 1992, the LLDA issued another order
reiterating the December 5, 1991, order and issued an Alias
Cease and Desist Order enjoining the City Government of
Caloocan from continuing its dumping operations at the
Camarin area.
On September 25, 1992, the LLDA, with the assistance of the
Philippine National Police, enforced its Alias Cease and Desist
Order by prohibiting the entry of all garbage dump trucks into
the Tala Estate, Camarin area being utilized as a dumpsite.
Pending resolution of its motion for reconsideration earlier
filed on September 17, 1992 with the LLDA, the City
Government of Caloocan filed with the Regional Trial Court
of Caloocan City an action for the declaration of nullity of the
cease and desist order with prayer for the issuance of writ of
injunction, docketed as Civil Case No. C-15598. In its
complaint, the City Government of Caloocan sought to be
declared as the sole authority empowered to promote the
health and safety and enhance the right of the people in
Caloocan City to a balanced ecology within its territorial
jurisdiction.9
On September 25, 1992, the Executive Judge of the Regional
Trial Court of Caloocan City issued a temporary restraining
order enjoining the LLDA from enforcing its cease and desist
order. Subsequently, the case was raffled to the Regional Trial
Court, Branch 126 of Caloocan which, at the time, was
presided over by Judge Manuel Jn. Serapio of the Regional
Trial Court, Branch 127, the pairing judge of the recently-
retired presiding judge.
1
Page
The LLDA, for its part, filed on October 2, 1992 a motion to
dismiss on the ground, among others, that under Republic Act
No. 3931, as amended by Presidential Decree No. 984,
otherwise known as the Pollution Control Law, the cease and
desist order issued by it which is the subject matter of the
complaint is reviewable both upon the law and the facts of the
case by the Court of Appeals and not by the Regional Trial
Court. 10
On October 12, 1992 Judge Manuel Jn. Serapio issued an
order consolidating Civil Case No. C-15598 with Civil Case
No. C-15580, an earlier case filed by the Task Force Camarin
Dumpsite entitled "Fr. John Moran, et al. vs. Hon. Macario
Asistio." The LLDA, however, maintained during the trial that
the foregoing cases, being independent of each other, should
have been treated separately.
On October 16, 1992, Judge Manuel Jn. Serapio, after hearing
the motion to dismiss, issued in the consolidated cases an
order11 denying LLDA's motion to dismiss and granting the
issuance of a writ of preliminary injunction enjoining the
LLDA, its agent and all persons acting for and on its behalf,
from enforcing or implementing its cease and desist order
which prevents plaintiff City of Caloocan from dumping
garbage at the Camarin dumpsite during the pendency of this
case and/or until further orders of the court.
On November 5, 1992, the LLDA filed a petition
for certiorari, prohibition and injunction with prayer for
restraining order with the Supreme Court, docketed as G.R.
No. 107542, seeking to nullify the aforesaid order dated
October 16, 1992 issued by the Regional Trial Court, Branch
127 of Caloocan City denying its motion to dismiss.
The Court, acting on the petition, issued a Resolution 12 on
November 10, 1992 referring the case to the Court of Appeals
for proper disposition and at the same time, without giving due
course to the petition, required the respondents to comment on
the petition and file the same with the Court of Appeals within
ten (10) days from notice. In the meantime, the Court issued a
temporary restraining order, effective immediately and
continuing until further orders from it, ordering the
respondents: (1) Judge Manuel Jn. Serapio, Presiding Judge,
Regional Trial Court, Branch 127, Caloocan City to cease and
desist from exercising jurisdiction over the case for declaration
of nullity of the cease and desist order issued by the Laguna
Lake Development Authority (LLDA); and (2) City Mayor of
Caloocan and/or the City Government of Caloocan to cease
and desist from dumping its garbage at the Tala Estate,
Barangay Camarin, Caloocan City.
Respondents City Government of Caloocan and Mayor
Macario A. Asistio, Jr. filed on November 12, 1992 a motion
for reconsideration and/or to quash/recall the temporary
restraining order and an urgent motion for reconsideration
alleging that ". . . in view of the calamitous situation that
would arise if the respondent city government fails to collect
350 tons of garbage daily for lack of dumpsite (i)t is therefore,
imperative that the issue be resolved with dispatch or with
sufficient leeway to allow the respondents to find alternative
solutions to this garbage problem."
On November 17, 1992, the Court issued a
Resolution13 directing the Court of Appeals to immediately set
the case for hearing for the purpose of determining whether or
not the temporary restraining order issued by the Court should
be lifted and what conditions, if any, may be required if it is to
be so lifted or whether the restraining order should be
maintained or converted into a preliminary injunction.
The Court of Appeals set the case for hearing on November
27, 1992, at 10:00 in the morning at the Hearing Room, 3rd
Floor, New Building, Court of Appeals. 14 After the oral
argument, a conference was set on December 8, 1992 at 10:00
o'clock in the morning where the Mayor of Caloocan City, the
General Manager of LLDA, the Secretary of DENR or his
duly authorized representative and the Secretary of DILG or
his duly authorized representative were required to appear.
It was agreed at the conference that the LLDA had until
December 15, 1992 to finish its study and review of
respondent's technical plan with respect to the dumping of its
garbage and in the event of a rejection of respondent's
technical plan or a failure of settlement, the parties will submit
within 10 days from notice their respective memoranda on the
merits of the case, after which the petition shall be deemed
submitted for resolution.15 Notwithstanding such efforts, the
parties failed to settle the dispute.
On April 30, 1993, the Court of Appeals promulgated its
decision holding that: (1) the Regional Trial Court has no
jurisdiction on appeal to try, hear and decide the action for
annulment of LLDA's cease and desist order, including the
issuance of a temporary restraining order and preliminary
injunction in relation thereto, since appeal therefrom is within
the exclusive and appellate jurisdiction of the Court of
Appeals under Section 9, par. (3), of Batas Pambansa Blg.
129; and (2) the Laguna Lake Development Authority has no
power and authority to issue a cease and desist order under its
enabling law, Republic Act No. 4850, as amended by P.D. No.
813 and Executive Order
No. 927, series of 1983.
The Court of Appeals thus dismissed Civil Case No. 15598
and the preliminary injunction issued in the said case was set
aside; the cease and desist order of LLDA was likewise set
aside and the temporary restraining order enjoining the City
Mayor of Caloocan and/or the City Government of Caloocan
to cease and desist from dumping its garbage at the Tala
Estate, Barangay Camarin, Caloocan City was lifted, subject,
however, to the condition that any future dumping of garbage
in said area, shall be in conformity with the procedure and
protective works contained in the proposal attached to the
records of this case and found on pages 152-160 of the Rollo,
which was thereby adopted by reference and made an integral
part of the decision, until the corresponding restraining and/or
injunctive relief is granted by the proper Court upon LLDA's
institution of the necessary legal proceedings.
2
Hence, the Laguna Lake Development Authority filed the
Page
instant petition for review on certiorari, now docketed as G.R.
No. 110120, with prayer that the temporary restraining order
lifted by the Court of Appeals be re-issued until after final
determination by this Court of the issue on the proper
interpretation of the powers and authority of the LLDA under
its enabling law.
On July, 19, 1993, the Court issued a temporary restraining
order16 enjoining the City Mayor of Caloocan and/or the City
Government of Caloocan to cease and desist from dumping its
garbage at the Tala Estate, Barangay Camarin, Caloocan City,
effective as of this date and containing until otherwise ordered
by the Court.
It is significant to note that while both parties in this case
agree on the need to protect the environment and to maintain
the ecological balance of the surrounding areas of the Camarin
open dumpsite, the question as to which agency can lawfully
exercise jurisdiction over the matter remains highly open to
question.
The City Government of Caloocan claims that it is within its
power, as a local government unit, pursuant to the general
welfare provision of the Local Government Code, 17 to
determine the effects of the operation of the dumpsite on the
ecological balance and to see that such balance is maintained.
On the basis of said contention, it questioned, from the
inception of the dispute before the Regional Trial Court of
Caloocan City, the power and authority of the LLDA to issue a
cease and desist order enjoining the dumping of garbage in the
Barangay Camarin over which the City Government of
Caloocan has territorial jurisdiction.
The Court of Appeals sustained the position of the City of
Caloocan on the theory that Section 7 of Presidential Decree
No. 984, otherwise known as the Pollution Control law,
authorizing the defunct National Pollution Control
Commission to issue an ex-parte cease and desist order was
not incorporated in Presidential Decree No. 813 nor in
Executive Order No. 927, series of
1983. The Court of Appeals ruled that under Section 4, par.
(d), of Republic Act No. 4850, as amended, the LLDA is
instead required "to institute the necessary legal proceeding
against any person who shall commence to implement or
continue implementation of any project, plan or program
within the Laguna de Bay region without previous clearance
from the Authority."
The LLDA now assails, in this partition for review, the
abovementioned ruling of the Court of Appeals, contending
that, as an administrative agency which was granted regulatory
and adjudicatory powers and functions by Republic Act No.
4850 and its amendatory laws, Presidential Decree No. 813
and Executive Order No. 927, series of 1983, it is invested
with the power and authority to issue a cease and desist order
pursuant to Section 4 par. (c), (d), (e), (f) and (g) of Executive
Order No. 927 series of 1983 which provides, thus:
Sec. 4. Additional Powers and Functions. The authority shall
have the following powers and functions:
xxx xxx xxx
(c) Issue orders or decisions to compel compliance with the
provisions of this Executive Order and its implementing rules
and regulations only after proper notice and hearing.
(d) Make, alter or modify orders requiring the discontinuance
of pollution specifying the conditions and the time within
which such discontinuance must be accomplished.
(e) Issue, renew, or deny permits, under such conditions as it
may determine to be reasonable, for the prevention and
abatement of pollution, for the discharge of sewage, industrial
waste, or for the installation or operation of sewage works and
industrial disposal system or parts thereof.
(f) After due notice and hearing, the Authority may also
revoke, suspend or modify any permit issued under this Order
whenever the same is necessary to prevent or abate pollution.
(g) Deputize in writing or request assistance of appropriate
government agencies or instrumentalities for the purpose of
enforcing this Executive Order and its implementing rules and
regulations and the orders and decisions of the Authority.
The LLDA claims that the appellate court deliberately
suppressed and totally disregarded the above provisions of
Executive Order No. 927, series of 1983, which granted
administrative quasi-judicial functions to LLDA on pollution
abatement cases.
In light of the relevant environmental protection laws cited
which are applicable in this case, and the corresponding
overlapping jurisdiction of government agencies implementing
these laws, the resolution of the issue of whether or not the
LLDA has the authority and power to issue an order which, in
its nature and effect was injunctive, necessarily requires a
determination of the threshold question: Does the Laguna
Lake Development Authority, under its Charter and its
amendatory laws, have the authority to entertain the complaint
against the dumping of garbage in the open dumpsite in
Barangay Camarin authorized by the City Government of
Caloocan which is allegedly endangering the health, safety,
and welfare of the residents therein and the sanitation and
quality of the water in the area brought about by exposure to
pollution caused by such open garbage dumpsite?
The matter of determining whether there is such pollution of
the environment that requires control, if not prohibition, of the
operation of a business establishment is essentially addressed
to the Environmental Management Bureau (EMB) of the
DENR which, by virtue of Section 16 of Executive Order No.
192, series of 1987,18 has assumed the powers and functions of
the defunct National Pollution Control Commission created
under Republic Act No. 3931. Under said Executive Order, a
Pollution Adjudication Board (PAB) under the Office of the
3
DENR Secretary now assumes the powers and functions of the
Page
National Pollution Control Commission with respect to
adjudication of pollution cases. 19
As a general rule, the adjudication of pollution cases generally
pertains to the Pollution Adjudication Board (PAB), except in
cases where the special law provides for another forum. It
must be recognized in this regard that the LLDA, as a
specialized administrative agency, is specifically mandated
under Republic Act No. 4850 and its amendatory laws to carry
out and make effective the declared national policy 20 of
promoting and accelerating the development and balanced
growth of the Laguna Lake area and the surrounding provinces
of Rizal and Laguna and the cities of San Pablo, Manila,
Pasay, Quezon and Caloocan21 with due regard and adequate
provisions for environmental management and control,
preservation of the quality of human life and ecological
systems, and the prevention of undue ecological disturbances,
deterioration and pollution. Under such a broad grant and
power and authority, the LLDA, by virtue of its special
charter, obviously has the responsibility to protect the
inhabitants of the Laguna Lake region from the deleterious
effects of pollutants emanating from the discharge of wastes
from the surrounding areas. In carrying out the
aforementioned declared policy, the LLDA is mandated,
among others, to pass upon and approve or disapprove all
plans, programs, and projects proposed by local government
offices/agencies within the region, public corporations, and
private persons or enterprises where such plans, programs
and/or projects are related to those of the LLDA for the
development of the region. 22
In the instant case, when the complainant Task Force Camarin
Dumpsite of Our Lady of Lourdes Parish, Barangay Camarin,
Caloocan City, filed its letter-complaint before the LLDA, the
latter's jurisdiction under its charter was validly invoked by
complainant on the basis of its allegation that the open
dumpsite project of the City Government of Caloocan in
Barangay Camarin was undertaken without a clearance from
the LLDA, as required under Section 4, par. (d), of Republic
Act. No. 4850, as amended by P.D. No. 813 and Executive
Order No. 927. While there is also an allegation that the said
project was without an Environmental Compliance Certificate
from the Environmental Management Bureau (EMB) of the
DENR, the primary jurisdiction of the LLDA over this case
was recognized by the Environmental Management Bureau of
the DENR when the latter acted as intermediary at the meeting
among the representatives of the City Government of
Caloocan, Task Force Camarin Dumpsite and LLDA
sometime in July 1992 to discuss the possibility of
re-opening the open dumpsite.
Having thus resolved the threshold question, the inquiry then
narrows down to the following issue: Does the LLDA have the
power and authority to issue a "cease and desist" order under
Republic Act No. 4850 and its amendatory laws, on the basis
of the facts presented in this case, enjoining the dumping of
garbage in Tala Estate, Barangay Camarin, Caloocan City.
The irresistible answer is in the affirmative.
The cease and desist order issued by the LLDA requiring the
City Government of Caloocan to stop dumping its garbage in
the Camarin open dumpsite found by the LLDA to have been
done in violation of Republic Act No. 4850, as amended, and
other relevant environment laws,23 cannot be stamped as an
unauthorized exercise by the LLDA of injunctive powers. By
its express terms, Republic Act No. 4850, as amended by P.D.
No. 813 and Executive Order No. 927, series of 1983,
authorizes the LLDA to "make, alter or modify order requiring
the discontinuance or pollution."24 (Emphasis supplied)
Section 4, par. (d) explicitly authorizes the LLDA
to make whatever order may be necessary in the exercise of its
jurisdiction.
To be sure, the LLDA was not expressly conferred the power
"to issue and ex-parte cease and desist order" in a language, as
suggested by the City Government of Caloocan, similar to the
express grant to the defunct National Pollution Control
Commission under Section 7 of P.D. No. 984 which,
admittedly was not reproduced in P.D. No. 813 and E.O. No.
927, series of 1983. However, it would be a mistake to draw
therefrom the conclusion that there is a denial of the power to
issue the order in question when the power "to make, alter or
modify orders requiring the discontinuance of pollution" is
expressly and clearly bestowed upon the LLDA by Executive
Order No. 927, series of 1983.
Assuming arguendo that the authority to issue a "cease and
desist order" were not expressly conferred by law, there is
jurisprudence enough to the effect that the rule granting such
authority need not necessarily be express.25 While it is a
fundamental rule that an administrative agency has only such
powers as are expressly granted to it by law, it is likewise a
settled rule that an administrative agency has also such powers
as are necessarily implied in the exercise of its express
powers.26 In the exercise, therefore, of its express powers
under its charter as a regulatory and quasi-judicial body with
respect to pollution cases in the Laguna Lake region, the
authority of the LLDA to issue a "cease and desist order" is,
perforce, implied. Otherwise, it may well be reduced to a
"toothless" paper agency.
In this connection, it must be noted that in Pollution
Adjudication Board v. Court of Appeals, et al.,27 the Court
ruled that the Pollution Adjudication Board (PAB) has the
power to issue an ex-parte cease and desist order when there
is prima facie evidence of an establishment exceeding the
allowable standards set by the anti-pollution laws of the
country. The ponente, Associate Justice Florentino P.
Feliciano, declared:
Ex parte cease and desist orders are permitted by law and
regulations in situations like that here presented precisely
because stopping the continuous discharge of pollutive and
untreated effluents into the rivers and other inland waters of
the Philippines cannot be made to wait until protracted
litigation over the ultimate correctness or propriety of such
orders has run its full course, including multiple and sequential
appeals such as those which Solar has taken, which of course
may take several years. The relevant pollution control statute
4
and implementing regulations were enacted and promulgated
Page
in the exercise of that pervasive, sovereign power to protect
the safety, health, and general welfare and comfort of the
public, as well as the protection of plant and animal life,
commonly designated as the police power. It is a constitutional
commonplace that the ordinary requirements of procedural
due process yield to the necessities of protecting vital public
interests like those here involved, through the exercise of
police power. . . .
The immediate response to the demands of "the necessities of
protecting vital public interests" gives vitality to the statement
on ecology embodied in the Declaration of Principles and
State Policies or the 1987 Constitution. Article II, Section 16
which provides:
appropriately addressed to an administrative agency with the
special knowledge and expertise of the LLDA.
WHEREFORE, the petition is GRANTED. The temporary
restraining order issued by the Court on July 19, 1993
enjoining the City Mayor of Caloocan and/or the City
Government of Caloocan from dumping their garbage at the
Tala Estate, Barangay Camarin, Caloocan City is hereby made
permanent.
SO ORDERED.

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

As a constitutionally guaranteed right of every person, it

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

The issuance, therefore, of the cease and desist order by the

LLDA, as a practical matter of procedure under the
circumstances of the case, is a proper exercise of its power and
authority under its charter and its amendatory laws. Had the
cease and desist order issued by the LLDA been complied
with by the City Government of Caloocan as it did in the first
instance, no further legal steps would have been necessary.

The charter of LLDA, Republic Act No. 4850, as amended,

instead of conferring upon the LLDA the means of directly
enforcing such orders, has provided under its Section 4 (d) the
power to institute "necessary legal proceeding against any
person who shall commence to implement or continue
implementation of any project, plan or program within the
Laguna de Bay region without previous clearance from the
LLDA."

Clearly, said provision was designed to invest the LLDA with

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

Insofar as the implementation of relevant anti-pollution laws

5

in the Laguna Lake region and its surrounding provinces,

Page

cities and towns are concerned, the Court will not dwell
further on the related issues raised which are more
 G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE
ALFONSO
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR.,
in his capacity as the Secretary of the Department of
Environment and Natural Resources, and THE
HONORABLE ERIBERTO U. ROSARIO, Presiding
Judge of the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of
Filipinos to a balanced and healthful ecology which the
petitioners dramatically associate with the twin concepts of
"inter-generational responsibility" and "inter-generational
justice." Specifically, it touches on the issue of whether the
said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests and
"arrest the unabated hemorrhage of the country's vital life
support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which
was filed before Branch 66 (Makati, Metro Manila) of the
Regional Trial Court (RTC), National Capital Judicial Region.
The principal plaintiffs therein, now the principal petitioners,
are all minors duly represented and joined by their respective
parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and
non-profit corporation organized for the purpose of, inter alia,
engaging in concerted action geared for the protection of our
environment and natural resources. The original defendant was
the Honorable Fulgencio S. Factoran, Jr., then Secretary of the
Department of Environment and Natural Resources (DENR).
His substitution in this petition by the new Secretary, the
Honorable Angel C. Alcala, was subsequently ordered upon
proper motion by the petitioners.1 The complaint2 was
instituted as a taxpayers' class suit 3 and alleges that the
plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment
of the natural resource treasure that is the country's virgin
tropical forests." The same was filed for themselves and others
who are equally concerned about the preservation of said
resource but are "so numerous that it is impracticable to bring
them all before the Court." The minors further asseverate that
they "represent their generation as well as generations yet
unborn."4 Consequently, it is prayed for that judgment be
rendered:
. . . ordering defendant, his agents, representatives and other
persons acting in his behalf to —
(1) Cancel all existing timber license agreements in the
country;
(2) Cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and
equitable under the premises."5
The complaint starts off with the general averments that the
Philippine archipelago of 7,100 islands has a land area of
thirty million (30,000,000) hectares and is endowed with rich,
lush and verdant rainforests in which varied, rare and unique
species of flora and fauna may be found; these rainforests
contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous
Philippine cultures which have existed, endured and flourished
since time immemorial; scientific evidence reveals that in
order to maintain a balanced and healthful ecology, the
country's land area should be utilized on the basis of a ratio of
fifty-four per cent (54%) for forest cover and forty-six per cent
(46%) for agricultural, residential, industrial, commercial and
other uses; the distortion and disturbance of this balance as a
consequence of deforestation have resulted in a host of
environmental tragedies, such as (a) water shortages resulting
from drying up of the water table, otherwise known as the
"aquifer," as well as of rivers, brooks and streams, (b)
salinization of the water table as a result of the intrusion
therein of salt water, incontrovertible examples of which may
be found in the island of Cebu and the Municipality of Bacoor,
Cavite, (c) massive erosion and the consequential loss of soil
fertility and agricultural productivity, with the volume of soil
eroded estimated at one billion (1,000,000,000) cubic meters
per annum — approximately the size of the entire island of
Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the
disturbance and dislocation of cultural communities, including
the disappearance of the Filipino's indigenous cultures, (f) the
siltation of rivers and seabeds and consequential destruction of
corals and other aquatic life leading to a critical reduction in
marine resource productivity, (g) recurrent spells of drought as
is presently experienced by the entire country, (h) increasing
velocity of typhoon winds which result from the absence of
windbreakers, (i) the floodings of lowlands and agricultural
plains arising from the absence of the absorbent mechanism of
forests, (j) the siltation and shortening of the lifespan of multi-
billion peso dams constructed and operated for the purpose of
supplying water for domestic uses, irrigation and the
generation of electric power, and (k) the reduction of the
earth's capacity to process carbon dioxide gases which has led
to perplexing and catastrophic climatic changes such as the
phenomenon of global warming, otherwise known as the
"greenhouse effect."
Plaintiffs further assert that the adverse and detrimental
consequences of continued and deforestation are so capable of
6
unquestionable demonstration that the same may be submitted
Page
as a matter of judicial notice. This notwithstanding, they
expressed their intention to present expert witnesses as well as
documentary, photographic and film evidence in the course of
the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some
sixteen (16) million hectares of rainforests constituting
roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no
more than 1.2 million hectares of said rainforests or four per
cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of
virgin old-growth rainforests are left, barely 2.8% of the entire
land mass of the Philippine archipelago and about 3.0 million
hectares of immature and uneconomical secondary growth
forests.
11. Public records reveal that the defendant's, predecessors
have granted timber license agreements ('TLA's') to various
corporations to cut the aggregate area of 3.89 million hectares
for commercial logging purposes.
A copy of the TLA holders and the corresponding areas
covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000
hectares per annum or 25 hectares per hour — nighttime,
Saturdays, Sundays and holidays included — the Philippines
will be bereft of forest resources after the end of this ensuing
decade, if not earlier.
13. The adverse effects, disastrous consequences, serious
injury and irreparable damage of this continued trend of
deforestation to the plaintiff minor's generation and to
generations yet unborn are evident and incontrovertible. As a
matter of fact, the environmental damages enumerated in
paragraph 6 hereof are already being felt, experienced and
suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to
cut and deforest the remaining forest stands will work great
damage and irreparable injury to plaintiffs — especially
plaintiff minors and their successors — who may never see,
use, benefit from and enjoy this rare and unique natural
resource treasure.
This act of defendant constitutes a misappropriation and/or
impairment of the natural resource property he holds in trust
for the benefit of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a
balanced and healthful ecology and are entitled to protection
by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with
the defendant's office. On March 2, 1990, plaintiffs served
upon defendant a final demand to cancel all logging permits in
the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto
attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the
existing TLA's to the continuing serious damage and extreme
prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel
the TLA's is an act violative of the rights of plaintiffs,
especially plaintiff minors who may be left with a country that
is desertified (sic), bare, barren and devoid of the wonderful
flora, fauna and indigenous cultures which the Philippines had
been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is
manifestly contrary to the public policy enunciated in the
Philippine Environmental Policy which, in pertinent part,
states that it is the policy of the State —
(a) to create, develop, maintain and improve conditions under
which man and nature can thrive in productive and enjoyable
harmony with each other;
(b) to fulfill the social, economic and other requirements of
present and future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that is
conductive to a life of dignity and well-being. (P.D. 1151, 6
June 1977)
20. Furthermore, defendant's continued refusal to cancel the
aforementioned TLA's is contradictory to the Constitutional
policy of the State to —
a. effect "a more equitable distribution of opportunities,
income and wealth" and "make full and efficient use of natural
resources (sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and
resources (sic)" (Section 14, Article XIV, id.);
d. "protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony
of nature." (Section 16, Article II, id.)
7
Page
21. Finally, defendant's act is contrary to the highest law of
humankind — the natural law — and violative of plaintiffs'
right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in
law other than the instant action to arrest the unabated
hemorrhage of the country's vital life support systems and
continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran,
Jr., filed a Motion to Dismiss the complaint based on two (2)
grounds, namely: (1) the plaintiffs have no cause of action
against him and (2) the issue raised by the plaintiffs is a
political question which properly pertains to the legislative or
executive branches of Government. In their 12 July 1990
Opposition to the Motion, the petitioners maintain that (1) the
complaint shows a clear and unmistakable cause of action, (2)
the motion is dilatory and (3) the action presents a justiciable
question as it involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting
the aforementioned motion to dismiss. 7 In the said order, not
only was the defendant's claim — that the complaint states no
cause of action against him and that it raises a political
question — sustained, the respondent Judge further ruled that
the granting of the relief prayed for would result in the
impairment of contracts which is prohibited by the
fundamental law of the land.
Plaintiffs thus filed the instant special civil action
for certiorari under Rule 65 of the Revised Rules of Court and
ask this Court to rescind and set aside the dismissal order on
the ground that the respondent Judge gravely abused his
discretion in dismissing the action. Again, the parents of the
plaintiffs-minors not only represent their children, but have
also joined the latter in this case.8
On 14 May 1992, We resolved to give due course to the
petition and required the parties to submit their respective
Memoranda after the Office of the Solicitor General (OSG)
filed a Comment in behalf of the respondents and the
petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and
unmistakably states a cause of action as it contains sufficient
allegations concerning their right to a sound environment
based on Articles 19, 20 and 21 of the Civil Code (Human
Relations), Section 4 of Executive Order (E.O.) No. 192
creating the DENR, Section 3 of Presidential Decree (P.D.)
No. 1151 (Philippine Environmental Policy), Section 16,
Article II of the 1987 Constitution recognizing the right of the
people to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept of
man's inalienable right to self-preservation and self-
perpetuation embodied in natural law. Petitioners likewise rely
on the respondent's correlative obligation per Section 4 of E.O.
No. 192, to safeguard the people's right to a healthful
environment.
It is further claimed that the issue of the respondent Secretary's
alleged grave abuse of discretion in granting Timber License
Agreements (TLAs) to cover more areas for logging than what
is available involves a judicial question.
Anent the invocation by the respondent Judge of the
Constitution's non-impairment clause, petitioners maintain that
the same does not apply in this case because TLAs are not
contracts. They likewise submit that even if TLAs may be
considered protected by the said clause, it is well settled that
they may still be revoked by the State when the public interest
so requires.
On the other hand, the respondents aver that the petitioners
failed to allege in their complaint a specific legal right violated
by the respondent Secretary for which any relief is provided
by law. They see nothing in the complaint but vague and
nebulous allegations concerning an "environmental right"
which supposedly entitles the petitioners to the "protection by
the state in its capacity as parens patriae." Such allegations,
according to them, do not reveal a valid cause of action. They
then reiterate the theory that the question of whether logging
should be permitted in the country is a political question which
should be properly addressed to the executive or legislative
branches of Government. They therefore assert that the
petitioners' resources is not to file an action to court, but to
lobby before Congress for the passage of a bill that would ban
logging totally.
As to the matter of the cancellation of the TLAs, respondents
submit that the same cannot be done by the State without due
process of law. Once issued, a TLA remains effective for a
certain period of time — usually for twenty-five (25) years.
During its effectivity, the same can neither be revised nor
cancelled unless the holder has been found, after due notice
and hearing, to have violated the terms of the agreement or
other forestry laws and regulations. Petitioners' proposition to
have all the TLAs indiscriminately cancelled without the
requisite hearing would be violative of the requirements of due
process.
Before going any further, We must first focus on some
procedural matters. Petitioners instituted Civil Case No. 90-
777 as a class suit. The original defendant and the present
respondents did not take issue with this matter. Nevertheless,
We hereby rule that the said civil case is indeed a class suit.
The subject matter of the complaint is of common and general
interest not just to several, but to all citizens of the Philippines.
Consequently, since the parties are so numerous, it, becomes
impracticable, if not totally impossible, to bring all of them
before the court. We likewise declare that the plaintiffs therein
are numerous and representative enough to ensure the full
protection of all concerned interests. Hence, all the requisites
for the filing of a valid class suit under Section 12, Rule 3 of
the Revised Rules of Court are present both in the said civil
case and in the instant petition, the latter being but an incident
to the former.
8
Page
This case, however, has a special and novel element.
Petitioners minors assert that they represent their generation as
well as generations yet unborn. We find no difficulty in ruling
that they can, for themselves, for others of their generation and
for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can
only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful
ecology is concerned. Such a right, as hereinafter expounded,
considers
the "rhythm and harmony of nature." Nature means the created
world in its entirety. 9 Such rhythm and harmony indispensably
include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest,
mineral, land, waters, fisheries, wildlife, off-shore areas and
other natural resources to the end that their exploration,
development and utilization be equitably accessible to the
present as well as future generations. 10 Needless to say, every
generation has a responsibility to the next to preserve that
rhythm and harmony for the full enjoyment of a balanced and
healthful ecology. Put a little differently, the minors' assertion
of their right to a sound environment constitutes, at the same
time, the performance of their obligation to ensure the
protection of that right for the generations to come.
The locus standi of the petitioners having thus been addressed,
We shall now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a
meticulous consideration and evaluation of the issues raised
and arguments adduced by the parties, We do not hesitate to
find for the petitioners and rule against the respondent Judge's
challenged order for having been issued with grave abuse of
discretion amounting to lack of jurisdiction. The pertinent
portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint,
the Court cannot help but agree with the defendant. For
although we believe that plaintiffs have but the noblest of all
intentions, it (sic) fell short of alleging, with sufficient
definiteness, a specific legal right they are seeking to enforce
and protect, or a specific legal wrong they are seeking to
prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague
assumptions and vague conclusions based on unverified data.
In fine, plaintiffs fail to state a cause of action in its Complaint
against the herein defendant.
Furthermore, the Court firmly believes that the matter before
it, being impressed with political color and involving a matter
of public policy, may not be taken cognizance of by this Court
without doing violence to the sacred principle of "Separation
of Powers" of the three (3) co-equal branches of the
Government.
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs prayed
for by the plaintiffs, i.e., to cancel all existing timber license
agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount
to "impairment of contracts" abhored (sic) by the fundamental
law. 11
We do not agree with the trial court's conclusions that the
plaintiffs failed to allege with sufficient definiteness a specific
legal right involved or a specific legal wrong committed, and
that the complaint is replete with vague assumptions and
conclusions based on unverified data. A reading of the
complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right
— the right to a balanced and healthful ecology which, for the
first time in our nation's constitutional history, is solemnly
incorporated in the fundamental law. Section 16, Article II of
the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature.
This right unites with the right to health which is provided for
in the preceding section of the same article:
Sec. 15. The State shall protect and promote the right to health
of the people and instill health consciousness among them.
While the right to a balanced and healthful ecology is to be
found under the Declaration of Principles and State Policies
and not under the Bill of Rights, it does not follow that it is
less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different
category of rights altogether for it concerns nothing less than
self-preservation and self-perpetuation — aptly and fittingly
stressed by the petitioners — the advancement of which may
even be said to predate all governments and constitutions. As a
matter of fact, these basic rights need not even be written in
the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly mentioned
in the fundamental charter, it is because of the well-founded
fear of its framers that unless the rights to a balanced and
healthful ecology and to health are mandated as state policies
by the Constitution itself, thereby highlighting their continuing
importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day
would not be too far when all else would be lost not only for
the present generation, but also for those to come —
generations which stand to inherit nothing but parched earth
incapable of sustaining life.
The right to a balanced and healthful ecology carries with it
the correlative duty to refrain from impairing the environment.
During the debates on this right in one of the plenary sessions
of the 1986 Constitutional Commission, the following
exchange transpired between Commissioner Wilfrido
9
Villacorta and Commissioner Adolfo Azcuna who sponsored
Page
the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions
against all forms of pollution — air, water and noise
pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic)
environment necessarily carries with it the correlative duty of
not impairing the same and, therefore, sanctions may be
provided for impairment of environmental balance. 12
The said right implies, among many other things, the judicious
management and conservation of the country's forests.
Without such forests, the ecological or environmental balance
would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and
healthful ecology and the right to health, as well as the other
related provisions of the Constitution concerning the
conservation, development and utilization of the country's
natural resources, 13 then President Corazon C. Aquino
promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of
which expressly mandates that the Department of
Environment and Natural Resources "shall be the primary
government agency responsible for the conservation,
management, development and proper use of the country's
environment and natural resources, specifically forest and
grazing lands, mineral, resources, including those in
reservation and watershed areas, and lands of the public
domain, as well as the licensing and regulation of all natural
resources as may be provided for by law in order to ensure
equitable sharing of the benefits derived therefrom for the
welfare of the present and future generations of Filipinos."
Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. — It is hereby declared the
policy of the State to ensure the sustainable use, development,
management, renewal, and conservation of the country's
forest, mineral, land, off-shore areas and other natural
resources, including the protection and enhancement of the
quality of the environment, and equitable access of the
different segments of the population to the development and
the use of the country's natural resources, not only for the
present generation but for future generations as well. It is also
the policy of the state to recognize and apply a true value
system including social and environmental cost implications
relative to their utilization, development and conservation of
our natural resources.
This policy declaration is substantially re-stated it Title XIV,
Book IV of the Administrative Code of 1987, 15 specifically in
Section 1 thereof which reads:
Sec. 1. Declaration of Policy. — (1) The State shall ensure,
for the benefit of the Filipino people, the full exploration and
development as well as the judicious disposition, utilization,
management, renewal and conservation of the country's forest,
mineral, land, waters, fisheries, wildlife, off-shore areas and
other natural resources, consistent with the necessity of
maintaining a sound ecological balance and protecting and
enhancing the quality of the environment and the objective of
making the exploration, development and utilization of such
natural resources equitably accessible to the different
segments of the present as well as future generations.
(2) The State shall likewise recognize and apply a true value
system that takes into account social and environmental cost
implications relative to the utilization, development and
conservation of our natural resources.
The above provision stresses "the necessity of maintaining a
sound ecological balance and protecting and enhancing the
quality of the environment." Section 2 of the same Title, on
the other hand, specifically speaks of the mandate of the
DENR; however, it makes particular reference to the fact of
the agency's being subject to law and higher authority. Said
section provides:
Sec. 2. Mandate. — (1) The Department of Environment and
Natural Resources shall be primarily responsible for the
implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of
carrying out the State's constitutional mandate to control and
supervise the exploration, development, utilization, and
conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have
set the objectives which will serve as the bases for policy
formulation, and have defined the powers and functions of the
DENR.
It may, however, be recalled that even before the ratification
of the 1987 Constitution, specific statutes already paid special
attention to the "environmental right" of the present and future
generations. On 6 June 1977, P.D. No. 1151 (Philippine
Environmental Policy) and P.D. No. 1152 (Philippine
Environment Code) were issued. The former "declared a
continuing policy of the State (a) to create, develop, maintain
and improve conditions under which man and nature can
thrive in productive and enjoyable harmony with each other,
(b) to fulfill the social, economic and other requirements of
present and future generations of Filipinos, and (c) to insure
the attainment of an environmental quality that is conducive to
a life of dignity and well-being." 16 As its goal, it speaks of the
"responsibilities of each generation as trustee and guardian of
the environment for succeeding generations." 17 The latter
statute, on the other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent)
to a balanced and healthful ecology is as clear as the DENR's
10
duty — under its mandate and by virtue of its powers and
functions under E.O. No. 192 and the Administrative Code of
Page
1987 — to protect and advance the said right.
A denial or violation of that right by the other who has the
corelative duty or obligation to respect or protect the same
gives rise to a cause of action. Petitioners maintain that the
granting of the TLAs, which they claim was done with grave
abuse of discretion, violated their right to a balanced and
healthful ecology; hence, the full protection thereof requires
that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal
right or rights of the other; and its essential elements are legal
right of the plaintiff, correlative obligation of the defendant,
and act or omission of the defendant in violation of said legal
right. 18
It is settled in this jurisdiction that in a motion to dismiss
based on the ground that the complaint fails to state a cause of
action, 19 the question submitted to the court for resolution
involves the sufficiency of the facts alleged in the complaint
itself. No other matter should be considered; furthermore, the
truth of falsity of the said allegations is beside the point for the
truth thereof is deemed hypothetically admitted. The only
issue to be resolved in such a case is: admitting such alleged
facts to be true, may the court render a valid judgment in
accordance with the prayer in the complaint? 20 In Militante
vs. Edrosolano, 21 this Court laid down the rule that the
judiciary should "exercise the utmost care and circumspection
in passing upon a motion to dismiss on the ground of the
absence thereof [cause of action] lest, by its failure to manifest
a correct appreciation of the facts alleged and deemed
hypothetically admitted, what the law grants or recognizes is
effectively nullified. If that happens, there is a blot on the legal
order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We
find the statements under the introductory affirmative
allegations, as well as the specific averments under the sub-
heading CAUSE OF ACTION, to be adequate enough to
show, prima facie, the claimed violation of their rights. On the
basis thereof, they may thus be granted, wholly or partly, the
reliefs prayed for. It bears stressing, however, that insofar as
the cancellation of the TLAs is concerned, there is the need to
implead, as party defendants, the grantees thereof for they are
indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to
raise a political question. Policy formulation or determination
by the executive or legislative branches of Government is not
squarely put in issue. What is principally involved is the
enforcement of a right vis-a-vis policies already formulated
and expressed in legislation. It must, nonetheless, be
emphasized that the political question doctrine is no longer,
the insurmountable obstacle to the exercise of judicial power
or the impenetrable shield that protects executive and
legislative actions from judicial inquiry or review. The second
paragraph of section 1, Article VIII of the Constitution states
that:
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
Commenting on this provision in his book, Philippine
Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished
member of this Court, says:
The first part of the authority represents the traditional concept
of judicial power, involving the settlement of conflicting rights
as conferred as law. The second part of the authority
represents a broadening of judicial power to enable the courts
of justice to review what was before forbidden territory, to wit,
the discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon even
the wisdom of the decisions of the executive and the
legislature and to declare their acts invalid for lack or excess
of jurisdiction because tainted with grave abuse of discretion.
The catch, of course, is the meaning of "grave abuse of
discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this
Court, noted:
In the case now before us, the jurisdictional objection becomes
even less tenable and decisive. The reason is that, even if we
were to assume that the issue presented before us was political
in nature, we would still not be precluded from revolving it
under the expanded jurisdiction conferred upon us that now
covers, in proper cases, even the political question. Article
VII, Section 1, of the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the
complaint is the non-impairment of contracts clause found in
the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs prayed
for by the plaintiffs, i.e., to cancel all existing timber license
agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount
to "impairment of contracts" abhored (sic) by the fundamental
law. 24
We are not persuaded at all; on the contrary, We are amazed,
if not shocked, by such a sweeping pronouncement. In the first
place, the respondent Secretary did not, for obvious reasons,
even invoke in his motion to dismiss the non-impairment
11
clause. If he had done so, he would have acted with utmost
infidelity to the Government by providing undue and
Page
unwarranted benefits and advantages to the timber license
holders because he would have forever bound the Government
to strictly respect the said licenses according to their terms and
conditions regardless of changes in policy and the demands of
public interest and welfare. He was aware that as correctly
pointed out by the petitioners, into every timber license must
be read Section 20 of the Forestry Reform Code (P.D. No.
705) which provides:
. . . Provided, That when the national interest so requires, the
President may amend, modify, replace or rescind any contract,
concession, permit, licenses or any other form of privilege
granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded
by executive action. It is not a contract, property or a property
right protested by the due process clause of the Constitution.
In Tan vs. Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State
regulates the utilization and disposition of forest resources to
the end that public welfare is promoted. A timber license is not
a contract within the purview of the due process clause; it is
only a license or privilege, which can be validly withdrawn
whenever dictated by public interest or public welfare as in
this case.
A license is merely a permit or privilege to do what otherwise
would be unlawful, and is not a contract between the authority,
federal, state, or municipal, granting it and the person to whom
it is granted; neither is it property or a property right, nor does
it create a vested right; nor is it taxation (37 C.J. 168). Thus,
this Court held that the granting of license does not create
irrevocable rights, neither is it property or property rights
(People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co.,
Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the
principal instruments by which the State regulates the
utilization and disposition of forest resources to the end that
public welfare is promoted. And it can hardly be gainsaid that
they merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a permanent or
irrevocable right to the particular concession area and the
forest products therein. They may be validly amended,
modified, replaced or rescinded by the Chief Executive when
national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law clause
[See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-
24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment
clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be
passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same
are contracts, the instant case does not involve a law or even
an executive issuance declaring the cancellation or
modification of existing timber licenses. Hence, the non-
impairment clause cannot as yet be invoked. Nevertheless,
granting further that a law has actually been passed mandating
cancellations or modifications, the same cannot still be
stigmatized as a violation of the non-impairment clause. This
is because by its very nature and purpose, such as law could
have only been passed in the exercise of the police power of
the state for the purpose of advancing the right of the people to
a balanced and healthful ecology, promoting their health and
enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is
not meant to be absolute. The same is understood to be subject
to reasonable legislative regulation aimed at the promotion of
public health, moral, safety and welfare. In other words, the
constitutional guaranty of non-impairment of obligations of
contract is limited by the exercise of the police power of the
State, in the interest of public health, safety, moral and general
welfare.
The reason for this is emphatically set forth in Nebia vs. New
York, 29 quoted in Philippine American Life Insurance Co. vs.
Auditor General,30 to wit:
Under our form of government the use of property and the
making of contracts are normally matters of private and not of
public concern. The general rule is that both shall be free of
governmental interference. But neither property rights nor
contract rights are absolute; for government cannot exist if the
citizen may at will use his property to the detriment of his
fellows, or exercise his freedom of contract to work them
harm. Equally fundamental with the private right is that of the
public to regulate it in the common interest.
In short, the non-impairment clause must yield to the police
power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the
non-impairment clause could apply with respect to the prayer
to enjoin the respondent Secretary from receiving, accepting,
processing, renewing or approving new timber licenses for,
save in cases of renewal, no contract would have as of yet
existed in the other instances. Moreover, with respect to
renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant
Petition is hereby GRANTED, and the challenged Order of
respondent Judge of 18 July 1991 dismissing Civil Case No.
90-777 is hereby set aside. The petitioners may therefore
amend their complaint to implead as defendants the holders or
grantees of the questioned timber license agreements.
12
No pronouncement as to costs.
Page
SO ORDERED.
Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero,
Nocon, Bellosillo, Melo and Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.
Separate Opinions
 
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the
Court, Davide, Jr., J., in this case which, to my mind, is one of
the most important cases decided by this Court in the last few
years. The seminal principles laid down in this decision are
likely to influence profoundly the direction and course of the
protection and management of the environment, which of
course embraces the utilization of all the natural resources in
the territorial base of our polity. I have therefore sought to
clarify, basically to myself, what the Court appears to be
saying.
The Court explicitly states that petitioners have the locus
standi necessary to sustain the bringing and, maintenance of
this suit (Decision, pp. 11-12). Locus standi is not a function
of petitioners' claim that their suit is properly regarded as
a class suit. I understand locus standi to refer to the legal
interest which a plaintiff must have in the subject matter of the
suit. Because of the very broadness of the concept of "class"
here involved — membership in this "class" appears to
embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected
to benefit from the course of action petitioners seek to require
public respondents to take, is vested with the necessary locus
standi. The Court may be seen therefore to be recognizing
a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency
directly concerned and the private persons or entities operating
in the field or sector of activity involved. Whether such
beneficiaries' right of action may be found under any and all
circumstances, or whether some failure to act, in the first
instance, on the part of the governmental agency concerned
must be shown ("prior exhaustion of administrative
remedies"), is not discussed in the decision and presumably is
left for future determination in an appropriate case.
The Court has also declared that the complaint has alleged and
focused upon "one specific fundamental legal right — the
right to a balanced and healthful ecology" (Decision, p. 14).
There is no question that "the right to a balanced and healthful
ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in
character, I suggest, with very great respect, that it cannot be
characterized as "specific," without doing excessive violence
to language. It is in fact very difficult to fashion language
more comprehensive in scope and generalized in character
than a right to "a balanced and healthful ecology." The list of
particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of
emission of toxic fumes and smoke from factories and motor
vehicles; of discharge of oil, chemical effluents, garbage and
raw sewage into rivers, inland and coastal waters by vessels,
oil rigs, factories, mines and whole communities; of dumping
of organic and inorganic wastes on open land, streets and
thoroughfares; failure to rehabilitate land after strip-mining or
open-pit mining; kaingin or slash-and-burn farming;
destruction of fisheries, coral reefs and other living sea
resources through the use of dynamite or cyanide and other
chemicals; contamination of ground water resources; loss of
certain species of fauna and flora; and so on. The other
statements pointed out by the Court: Section 3, Executive
Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book
IV of the 1987 Administrative Code; and P.D. No. 1151, dated
6 June 1977 — all appear to be formulations of policy, as
general and abstract as the constitutional statements of basic
policy in Article II, Section 16 ("the right — to a balanced and
healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The
Philippine Environment Code," is, upon the other hand, a
compendious collection of more "specific environment
management policies" and "environment quality standards"
(fourth "Whereas" clause, Preamble) relating to an extremely
wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation
embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly,
neither petitioners nor the Court has identified the particular
provision or provisions (if any) of the Philippine Environment
Code which give rise to a specific legal right which petitioners
are seeking to enforce. Secondly, the Philippine Environment
13
Code identifies with notable care the particular government
agency charged with the formulation and implementation of
Page
guidelines and programs dealing with each of the headings and
sub-headings mentioned above. The Philippine Environment
Code does not, in other words, appear to contemplate action
on the part of private persons who are beneficiaries of
implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as
anchored on a legal right comprised in the constitutional
statements above noted, the Court is in effect saying that
Section 15 (and Section 16) of Article II of the Constitution
are self-executing and judicially enforceable even in their
present form. The implications of this doctrine will have to be
explored in future cases; those implications are too large and
far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial
court, show a more specific legal right — a right cast in
language of a significantly lower order of generality than
Article II (15) of the Constitution — that is or may be violated
by the actions, or failures to act, imputed to the public
respondent by petitioners so that the trial court can validly
render judgment granting all or part of the relief prayed for. To
my mind, the Court should be understood as simply saying
that such a more specific legal right or rights may well exist in
our corpus of law, considering the general policy principles
found in the Constitution and the existence of the Philippine
Environment Code, and that the trial court should have given
petitioners an effective opportunity so to demonstrate, instead
of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an
essential component of a cause of action be a specific,
operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons. One is that unless
the legal right claimed to have been violated or disregarded is
given specification in operational terms, defendants may well
be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a
specific violation of law or applicable regulation is not alleged
or proved, petitioners can be expected to fall back on the
expanded conception of judicial power in the second
paragraph of Section 1 of Article VIII of the Constitution
which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Emphasis supplied)
When substantive standards as general as "the right to a
balanced and healthy ecology" and "the right to health" are
combined with remedial standards as broad ranging as "a
grave abuse of discretion amounting to lack or excess of
jurisdiction," the result will be, it is respectfully submitted, to
propel courts into the uncharted ocean of social and economic
policy making. At least in respect of the vast area of
environmental protection and management, our courts have no
claim to special technical competence and experience and
professional qualification. Where no specific, operable norms
and standards are shown to exist, then the policy making
departments — the legislative and executive departments —
must be given a real and effective opportunity to fashion and
promulgate those norms and standards, and to implement them
before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the
timber companies, whose concession agreements or TLA's
petitioners demand public respondents should cancel, must be
impleaded in the proceedings below. It might be asked that, if
petitioners' entitlement to the relief demanded
is not dependent upon proof of breach by the timber
companies of one or more of the specific terms and conditions
of their concession agreements (and this, petitioners implicitly
assume), what will those companies litigate about? The
answer I suggest is that they may seek to dispute the existence
of the specific legal right petitioners should allege, as well as
the reality of the claimed factual nexus between petitioners'
specific legal rights and the claimed wrongful acts or failures
to act of public respondent administrative agency. They may
also controvert the appropriateness of the remedy or remedies
demanded by petitioners, under all the circumstances which
exist.
I vote to grant the Petition for Certiorari because the
protection of the environment, including the forest cover of
our territory, is of extreme importance for the country. The
doctrines set out in the Court's decision issued today should,
however, be subjected to closer examination.
# Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the
Court, Davide, Jr., J., in this case which, to my mind, is one of
the most important cases decided by this Court in the last few
years. The seminal principles laid down in this decision are
likely to influence profoundly the direction and course of the
protection and management of the environment, which of
course embraces the utilization of all the natural resources in
the territorial base of our polity. I have therefore sought to
clarify, basically to myself, what the Court appears to be
saying.
The Court explicitly states that petitioners have the locus
standi necessary to sustain the bringing and, maintenance of
this suit (Decision, pp. 11-12). Locus standi is not a function
of petitioners' claim that their suit is properly regarded as
a class suit. I understand locus standi to refer to the legal
interest which a plaintiff must have in the subject matter of the
suit. Because of the very broadness of the concept of "class"
14
here involved — membership in this "class" appears to
embrace everyone living in the country whether now or in the
Page
future — it appears to me that everyone who may be expected
to benefit from the course of action petitioners seek to require
public respondents to take, is vested with the necessary locus
standi. The Court may be seen therefore to be recognizing
a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency
directly concerned and the private persons or entities operating
in the field or sector of activity involved. Whether such
beneficiaries' right of action may be found under any and all
circumstances, or whether some failure to act, in the first
instance, on the part of the governmental agency concerned
must be shown ("prior exhaustion of administrative
remedies"), is not discussed in the decision and presumably is
left for future determination in an appropriate case.
The Court has also declared that the complaint has alleged and
focused upon "one specific fundamental legal right — the
right to a balanced and healthful ecology" (Decision, p. 14).
There is no question that "the right to a balanced and healthful
ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in
character, I suggest, with very great respect, that it cannot be
characterized as "specific," without doing excessive violence
to language. It is in fact very difficult to fashion language
more comprehensive in scope and generalized in character
than a right to "a balanced and healthful ecology." The list of
particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of
emission of toxic fumes and smoke from factories and motor
vehicles; of discharge of oil, chemical effluents, garbage and
raw sewage into rivers, inland and coastal waters by vessels,
oil rigs, factories, mines and whole communities; of dumping
of organic and inorganic wastes on open land, streets and
thoroughfares; failure to rehabilitate land after strip-mining or
open-pit mining; kaingin or slash-and-burn farming;
destruction of fisheries, coral reefs and other living sea
resources through the use of dynamite or cyanide and other
chemicals; contamination of ground water resources; loss of
certain species of fauna and flora; and so on. The other
statements pointed out by the Court: Section 3, Executive
Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book
IV of the 1987 Administrative Code; and P.D. No. 1151, dated
6 June 1977 — all appear to be formulations of policy, as
general and abstract as the constitutional statements of basic
policy in Article II, Section 16 ("the right — to a balanced and
healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The
Philippine Environment Code," is, upon the other hand, a
compendious collection of more "specific environment
management policies" and "environment quality standards"
(fourth "Whereas" clause, Preamble) relating to an extremely
wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation
embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly,
neither petitioners nor the Court has identified the particular
provision or provisions (if any) of the Philippine Environment
Code which give rise to a specific legal right which petitioners
are seeking to enforce. Secondly, the Philippine Environment
Code identifies with notable care the particular government
agency charged with the formulation and implementation of
guidelines and programs dealing with each of the headings and
sub-headings mentioned above. The Philippine Environment
Code does not, in other words, appear to contemplate action
on the part of private persons who are beneficiaries of
implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as
anchored on a legal right comprised in the constitutional
statements above noted, the Court is in effect saying that
Section 15 (and Section 16) of Article II of the Constitution
are self-executing and judicially enforceable even in their
present form. The implications of this doctrine will have to be
explored in future cases; those implications are too large and
far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial
court, show a more specific legal right — a right cast in
language of a significantly lower order of generality than
Article II (15) of the Constitution — that is or may be violated
by the actions, or failures to act, imputed to the public
respondent by petitioners so that the trial court can validly
render judgment granting all or part of the relief prayed for. To
my mind, the Court should be understood as simply saying
that such a more specific legal right or rights may well exist in
our corpus of law, considering the general policy principles
found in the Constitution and the existence of the Philippine
Environment Code, and that the trial court should have given
petitioners an effective opportunity so to demonstrate, instead
of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an
15
essential component of a cause of action be a specific,
operable legal right, rather than a constitutional or
Page
statutory policy, for at least two (2) reasons. One is that unless
the legal right claimed to have been violated or disregarded is doctrines set out in the Court's decision issued today should,
given specification in operational terms, defendants may well however, be subjected to closer examination.
be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a

specific violation of law or applicable regulation is not alleged
or proved, petitioners can be expected to fall back on the
expanded conception of judicial power in the second
paragraph of Section 1 of Article VIII of the Constitution
which reads:

Section 1. . . .

Judicial power includes the duty of the courts of justice to

settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Emphasis supplied)

When substantive standards as general as "the right to a

balanced and healthy ecology" and "the right to health" are
combined with remedial standards as broad ranging as "a
grave abuse of discretion amounting to lack or excess of
jurisdiction," the result will be, it is respectfully submitted, to
propel courts into the uncharted ocean of social and economic
policy making. At least in respect of the vast area of
environmental protection and management, our courts have no
claim to special technical competence and experience and
professional qualification. Where no specific, operable norms
and standards are shown to exist, then the policy making
departments — the legislative and executive departments —
must be given a real and effective opportunity to fashion and
promulgate those norms and standards, and to implement them
before the courts should intervene.

My learned brother Davide, Jr., J., rightly insists that the

timber companies, whose concession agreements or TLA's
petitioners demand public respondents should cancel, must be
impleaded in the proceedings below. It might be asked that, if
petitioners' entitlement to the relief demanded
is not dependent upon proof of breach by the timber
companies of one or more of the specific terms and conditions
of their concession agreements (and this, petitioners implicitly
assume), what will those companies litigate about? The
answer I suggest is that they may seek to dispute the existence
of the specific legal right petitioners should allege, as well as
the reality of the claimed factual nexus between petitioners'
specific legal rights and the claimed wrongful acts or failures
to act of public respondent administrative agency. They may
also controvert the appropriateness of the remedy or remedies
demanded by petitioners, under all the circumstances which
exist.

I vote to grant the Petition for Certiorari because the

16

protection of the environment, including the forest cover of

our territory, is of extreme importance for the country. The
Page
G.R. No. 74930 February 13, 1989
RICARDO VALMONTE, OSWALDO CARBONELL,
DOY DEL CASTILLO, ROLANDO BARTOLOME, LEO
OBLIGAR, JUN GUTIERREZ, REYNALDO
BAGATSING, JUN "NINOY" ALBA, PERCY LAPID,
ROMMEL CORRO and ROLANDO FADUL, petitioners,
vs.
FELICIANO BELMONTE, JR., respondent.
Ricardo C. Valmonte for and in his own behalf and his co-
petitioners.
The Solicitor General for respondent.
If we could not secure the above documents could we have
access to them?
We are premising the above request on the following
provision of the Freedom Constitution of the present regime.
The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions
or decisions, shall be afforded the citizen subject to such
limitation as may be provided by law. (Art. IV, Sec. 6).
We trust that within five (5) days from receipt hereof we will
receive your favorable response on the matter.

VeE

CORTES, J.: [Rollo, p. 7.]

Petitioners in this special civil action for mandamus with To the aforesaid letter, the Deputy General Counsel of the
preliminary injunction invoke their right to information and GSIS replied:
pray that respondent be directed:
June 17, 1986
(a) to furnish petitioners the list of the names of the Batasang
Pambansa members belonging to the UNIDO and PDP-Laban Atty. Ricardo C. Valmonte
who were able to secure clean loans immediately before the 108 E. Benin Street
February 7 election thru the intercession/marginal note of the Caloocan City
then First Lady Imelda Marcos; and/or
Dear Compañero:
(b) to furnish petitioners with certified true copies of the
documents evidencing their respective loans; and/or Possibly because he must have thought that it contained
serious legal implications, President & General Manager
(c) to allow petitioners access to the public records for the Feliciano Belmonte, Jr. referred to me for study and reply your
subject information. (Petition, pp. 4-5; paragraphing supplied.] letter to him of June 4, 1986 requesting a list of the opposition
members of Batasang Pambansa who were able to secure a
The controversy arose when petitioner Valmonte wrote clean loan of P2 million each on guaranty of Mrs. Imelda
respondent Belmonte the following letter: Marcos.

June 4, 1986 My opinion in this regard is that a confidential relationship

exists between the GSIS and all those who borrow from it,
Hon. Feliciano Belmonte whoever they may be; that the GSIS has a duty to its
GSIS General Manager customers to preserve this confidentiality; and that it would
Arroceros, Manila not be proper for the GSIS to breach this confidentiality unless
so ordered by the courts.
Sir:
As a violation of this confidentiality may mar the image of the
As a lawyer, member of the media and plain citizen of our GSIS as a reputable financial institution, I regret very much
Republic, I am requesting that I be furnished with the list of that at this time we cannot respond positively to your request.
names of the opposition members of (the) Batasang Pambansa
who were able to secure a clean loan of P2 million each on Very truly yours,
guarranty (sic) of Mrs. Imelda Marcos. We understand that
OIC Mel Lopez of Manila was one of those aforesaid MPs. (Sgd.) MEYNARDO A. TIRO
Likewise, may we be furnished with the certified true copies Deputy General Counsel
17

of the documents evidencing their loan. Expenses in [Rollo, p. 40.]

connection herewith shall be borne by us.
Page
On June 20, 1986, apparently not having yet received the reply
of the Government Service and Insurance System (GSIS)
Deputy General Counsel, petitioner Valmonte wrote
respondent another letter, saying that for failure to receive a
reply, "(W)e are now considering ourselves free to do
whatever action necessary within the premises to pursue our
desired objective in pursuance of public interest." [Rollo, p. 8.]
On June 26, 1986, Valmonte, joined by the other petitioners,
filed the instant suit.
On July 19, 1986, the Daily Express carried a news item
reporting that 137 former members of the defunct interim and
regular Batasang Pambansa, including ten (10) opposition
members, were granted housing loans by the GSIS [Rollo, p.
41.]
Separate comments were filed by respondent Belmonte and
the Solicitor General. After petitioners filed a consolidated
reply, the petition was given due course and the parties were
required to file their memoranda. The parties having complied,
the case was deemed submitted for decision.
In his comment respondent raises procedural objections to the
issuance of a writ of mandamus, among which is that
petitioners have failed to exhaust administrative remedies.
Respondent claims that actions of the GSIS General Manager
are reviewable by the Board of Trustees of the GSIS.
Petitioners, however, did not seek relief from the GSIS Board
of Trustees. It is therefore asserted that since administrative
remedies were not exhausted, then petitioners have no cause of
action.
To this objection, petitioners claim that they have raised a
purely legal issue, viz., whether or not they are entitled to the
documents sought, by virtue of their constitutional right to
information. Hence, it is argued that this case falls under one
of the exceptions to the principle of exhaustion of
administrative remedies.
Among the settled principles in administrative law is that
before a party can be allowed to resort to the courts, he is
expected to have exhausted all means of administrative redress
available under the law. The courts for reasons of law, comity
and convenience will not entertain a case unless the available
administrative remedies have been resorted to and the
appropriate authorities have been given opportunity to act and
correct the errors committed in the administrative forum.
However, the principle of exhaustion of administrative
remedies is subject to settled exceptions, among which is
when only a question of law is involved [Pascual v. Provincial
Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al., G.R.
No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v.
Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA 359.]
The issue raised by petitioners, which requires the
interpretation of the scope of the constitutional right to
information, is one which can be passed upon by the regular
courts more competently than the GSIS or its Board of
Trustees, involving as it does a purely legal question. Thus,
the exception of this case from the application of the general
rule on exhaustion of administrative remedies is warranted.
Having disposed of this procedural issue, We now address
ourselves to the issue of whether or not mandamus hes to
compel respondent to perform the acts sought by petitioners to
be done, in pursuance of their right to information.
We shall deal first with the second and third alternative acts
sought to be done, both of which involve the issue of whether
or not petitioners are entitled to access to the documents
evidencing loans granted by the GSIS.
This is not the first time that the Court is confronted with a
controversy directly involving the constitutional right to
information. In Tañada v. Tuvera, G.R. No. 63915, April
24,1985, 136 SCRA 27 and in the recent case of Legaspi v.
Civil Service Commission, G.R. No. 72119, May 29, 1987,150
SCRA 530, the Court upheld the people's constitutional right
to be informed of matters of public interest and ordered the
government agencies concerned to act as prayed for by the
petitioners.
The pertinent provision under the 1987 Constitution is Art.
111, Sec. 7 which states:
The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions,
or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.
The right of access to information was also recognized in the
1973 Constitution, Art. IV Sec. 6 of which provided:
The right of the people to information on 'matters of public
concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions,
or decisions, shall be afforded the citizen subject to such
limitations as may be provided by law.
An informed citizenry with access to the diverse currents in
political, moral and artistic thought and data relative to them,
and the free exchange of ideas and discussion of issues
thereon, is vital to the democratic government envisioned
under our Constitution. The cornerstone of this republican
system of government is delegation of power by the people to
the State. In this system, governmental agencies and
institutions operate within the limits of the authority conferred
by the people. Denied access to information on the inner
workings of government, the citizenry can become prey to the
whims and caprices of those to whom the power had been
delegated. The postulate of public office as a public trust,
institutionalized in the Constitution (in Art. XI, Sec. 1) to
18
protect the people from abuse of governmental power, would
certainly be were empty words if access to such information of
Page
public concern is denied, except under limitations prescribed
by implementing legislation adopted pursuant to the
Constitution.
Petitioners are practitioners in media. As such, they have both
the right to gather and the obligation to check the accuracy of
information the disseminate. For them, the freedom of the
press and of speech is not only critical, but vital to the exercise
of their professions. The right of access to information ensures
that these freedoms are not rendered nugatory by the
government's monopolizing pertinent information. For an
essential element of these freedoms is to keep open a
continuing dialogue or process of communication between the
government and the people. It is in the interest of the State that
the channels for free political discussion be maintained to the
end that the government may perceive and be responsive to the
people's will. Yet, this open dialogue can be effective only to
the extent that the citizenry is informed and thus able to
formulate its will intelligently. Only when the participants in
the discussion are aware of the issues and have access to
information relating thereto can such bear fruit.
The right to information is an essential premise of a
meaningful right to speech and expression. But this is not to
say that the right to information is merely an adjunct of and
therefore restricted in application by the exercise of the
freedoms of speech and of the press. Far from it. The right to
information goes hand-in-hand with the constitutional policies
of full public disclosure * and honesty in the public
service. ** It is meant to enhance the widening role of the
citizenry in governmental decision-making as well as in
checking abuse in government.
Yet, like all the constitutional guarantees, the right to
information is not absolute. As stated in Legaspi, the people's
right to information is limited to "matters of public concern,"
and is further "subject to such limitations as may be provided
by law." Similarly, the State's policy of full disclosure is
limited to "transactions involving public interest," and is
"subject to reasonable conditions prescribed by law."
Hence, before mandamus may issue, it must be clear that the
information sought is of "public interest" or "public concern,"
and is not exempted by law from the operation of the
constitutional guarantee [Legazpi v. Civil Service
Commission, supra, at p. 542.]
The Court has always grappled with the meanings of the terms
"public interest" and "public concern". As observed
in Legazpi:
In determining whether or not a particular information is of
public concern there is no rigid test which can be applied.
"Public concern" like "public interest" is a term that eludes
exact definition. Both terms embrace a broad spectrum of
subjects which the public may want to know, either because
these directly affect their lives, or simply because such matters
naturally arouse the interest of an ordinary citezen. In the final
analysis, it is for the courts to determine on a case by case
basis whether the matter at issue is of interest or importance,
as it relates to or affects the public. [Ibid. at p. 541]
In the Tañada case the public concern deemed covered by the
constitutional right to information was the need for adequate
notice to the public of the various laws which are to regulate
the actions and conduct of citezens. In Legaspi, it was the
"legitimate concern of citezensof ensure that government
positions requiring civil service eligibility are occupied only
by persons who are eligibles" [Supra at p. 539.]
The information sought by petitioners in this case is the truth
of reports that certain Members of the Batasang Pambansa
belonging to the opposition were able to secure "clean" loans
from the GSIS immediately before the February 7, 1986
election through the intercession of th eformer First Lady,
Mrs. Imelda Marcos.
The GSIS is a trustee of contributions from the government
and its employees and the administrator of various insurance
programs for the benefit of the latter. Undeniably, its funds
assume a public character. More particularly, Secs. 5(b) and
46 of P.D. 1146, as amended (the Revised Government
Service Insurance Act of 1977), provide for annual
appropriations to pay the contributions, premiums, interest and
other amounts payable to GSIS by the government, as
employer, as well as the obligations which the Republic of the
Philippines assumes or guarantees to pay. Considering the
nature of its funds, the GSIS is expected to manage its
resources with utmost prudence and in strict compliance with
the pertinent laws or rules and regulations. Thus, one of the
reasons that prompted the revision of the old GSIS law (C.A.
No. 186, as amended) was the necessity "to preserve at all
times the actuarial solvency of the funds administered by the
System" [Second Whereas Clause, P.D. No. 1146.]
Consequently, as respondent himself admits, the GSIS "is not
supposed to grant 'clean loans.'" [Comment, p. 8.] It is
therefore the legitimate concern of the public to ensure that
these funds are managed properly with the end in view of
maximizing the benefits that accrue to the insured government
employees. Moreover, the supposed borrowers were Members
of the defunct Batasang Pambansa who themselves
appropriated funds for the GSIS and were therefore expected
to be the first to see to it that the GSIS performed its tasks with
the greatest degree of fidelity and that an its transactions were
above board.
In sum, the public nature of the loanable funds of the GSIS
and the public office held by the alleged borrowers make the
information sought clearly a matter of public interest and
concern.
A second requisite must be met before the right to information
may be enforced through mandamus proceedings, viz., that the
information sought must not be among those excluded by law.
19
Respondent maintains that a confidential relationship exists
between the GSIS and its borrowers. It is argued that a policy
Page
of confidentiality restricts the indiscriminate dissemination of
information.
Yet, respondent has failed to cite any law granting the GSIS
the privilege of confidentiality as regards the documents
subject of this petition. His position is apparently based merely
on considerations of policy. The judiciary does not settle
policy issues. The Court can only declare what the law is, and
not what the law should be. Under our system of government,
policy issues are within the domain of the political branches of
the government, and of the people themselves as the repository
of all State power.
Respondent however contends that in view of the right to
privacy which is equally protected by the Constitution and by
existing laws, the documents evidencing loan transactions of
the GSIS must be deemed outside the ambit of the right to
information.
There can be no doubt that right to privacy is constitutionally
protected. In the landmark case of Morfe v. Mutuc [130 Phil.
415 (1968), 22 SCRA 424], this Court, speaking through then
Mr. Justice Fernando, stated:
... The right to privacy as such is accorded recognition
independently of its identification with liberty; in itself, it is
fully deserving of constitutional protection. The language of
Prof. Emerson is particularly apt: "The concept of limited
government has always included the idea that governmental
powers stop short of certain intrusions into the personal life of
the citizen. This is indeed one of the basic distinctions
between absolute and limited government. UItimate and
pervasive control of the individual, in all aspects of his life, is
the hallmark of the absolute. state, In contrast, a system of
limited government safeguards a private sector, which belongs
to the individual, firmly distinguishing it from the public
sector, which the state can control. Protection of this private
sector — protection, in other words, of the dignity and
integrity of the individual — has become increasingly
important as modem society has developed. All the forces of
technological age — industrialization, urbanization, and
organization — operate to narrow the area of privacy and
facilitate intrusion into it. In modern terms, the capacity to
maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian society." [at
pp. 444-445.]
When the information requested from the government intrudes
into the privacy of a citizen, a potential conflict between the
rights to information and to privacy may arise. However, the
competing interests of these rights need not be resolved in this
case. Apparent from the above-quoted statement of the Court
in Morfe is that the right to privacy belongs to the individual
in his private capacity, and not to public and governmental
agencies like the GSIS. Moreover, the right cannot be invoked
by juridical entities like the GSIS. As held in the case
of Vassar College v. Loose Wills Biscuit Co. [197 F. 982
(1912)], a corporation has no right of privacy in its name since
the entire basis of the right to privacy is an injury to the
feelings and sensibilities of the party and a corporation would
have no such ground for relief.
Neither can the GSIS through its General Manager, the
respondent, invoke the right to privacy of its borrowers. The
right is purely personal in nature [Cf. Atkinson v. John
Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219
(1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31
L.R.A. 286 (1895)), and hence may be invoked only by the
person whose privacy is claimed to be violated.
It may be observed, however, that in the instant case, the
concerned borrowers themselves may not succeed if they
choose to invoke their right to privacy, considering the public
offices they were holding at the time the loans were alleged to
have been granted. It cannot be denied that because of the
interest they generate and their newsworthiness, public
figures, most especially those holding responsible positions in
government, enjoy a more limited right to privacy as
compared to ordinary individuals, their actions being subject
to closer public scrutiny [Cf. Ayer Productions Pty. Ltd. v.
Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See
also Cohen v. Marx, 211 P. 2d 321 (1949).]
Respondent next asserts that the documents evidencing the
loan transactions of the GSIS are private in nature and hence,
are not covered by the Constitutional right to information on
matters of public concern which guarantees "(a)ccess
to official records, and to documents, and papers pertaining
to official acts, transactions, or decisions" only.
It is argued that the records of the GSIS, a government
corporation performing proprietary functions, are outside the
coverage of the people's right of access to official records.
It is further contended that since the loan function of the GSIS
is merely incidental to its insurance function, then its loan
transactions are not covered by the constitutional policy of full
public disclosure and the right to information which is
applicable only to "official" transactions.
First of all, the "constituent — ministrant" dichotomy
characterizing government function has long been repudiated.
In ACCFA v. Confederation of Unions and Government
Corporations and Offices (G.R. Nos. L-21484 and L-23605,
November 29, 1969, 30 SCRA 6441, the Court said that the
government, whether carrying out its sovereign attributes or
running some business, discharges the same function of
service to the people.
Consequently, that the GSIS, in granting the loans, was
exercising a proprietary function would not justify the
exclusion of the transactions from the coverage and scope of
the right to information.
20
Moreover, the intent of the members of the Constitutional
Commission of 1986, to include government-owned and
Page
controlled corporations and transactions entered into by them
within the coverage of the State policy of fun public disclosure
is manifest from the records of the proceedings:
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Colayco).
Commissioner Suarez is recognized.
MR. SUAREZ. Thank you. May I ask the Gentleman a few
question?
MR. OPLE. Very gladly.
MR. SUAREZ. Thank you.
When we declare a "policy of full public disclosure of all its
transactions" — referring to the transactions of the State —
and when we say the "State" which I suppose would include
all of the various agencies, departments, ministries and
instrumentalities of the government....
MR. OPLE. Yes, and individual public officers, Mr. Presiding
Officer.
MR. SUAREZ. Including government-owned and controlled
corporations.
MR. OPLE. That is correct, Mr. Presiding Officer.
MR. SUAREZ. And when we say "transactions" which should
be distinguished from contracts, agreements, or treaties or
whatever, does the Gentleman refer to the steps leading to the
consummation of the contract, or does he refer to the contract
itself?
MR. OPLE. The "transactions" used here I suppose is generic
and, therefore, it can cover both steps leading to a contract,
and already a consummated contract, Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations
leading to the consummation of the transaction.
MR. OPLE. Yes, subject only to reasonable safeguards on the
national interest.
MR. SUAREZ. Thank you. [V Record of the Constitutional
Commission 24-25.] (Emphasis supplied.)
Considering the intent of the framers of the Constitution
which, though not binding upon the Court, are nevertheless
persuasive, and considering further that government-owned
and controlled corporations, whether performing proprietary
or governmental functions are accountable to the people, the
Court is convinced that transactions entered into by the GSIS,
a government-controlled corporation created by special
legislation are within the ambit of the people's right to be
informed pursuant to the constitutional policy of transparency
in government dealings.
In fine, petitioners are entitled to access to the documents
evidencing loans granted by the GSIS, subject to reasonable
regulations that the latter may promulgate relating to the
manner and hours of examination, to the end that damage to or
loss of the records may be avoided, that undue interference
with the duties of the custodian of the records may be
prevented and that the right of other persons entitled to inspect
the records may be insured [Legaspi v. Civil Service
Commission, supra at p. 538, quoting Subido v. Ozaeta, 80
Phil. 383, 387.] The petition, as to the second and third
alternative acts sought to be done by petitioners, is
meritorious.
However, the same cannot be said with regard to the first act
sought by petitioners, i.e., "to furnish petitioners the list of the
names of the Batasang Pambansa members belonging to the
UNIDO and PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda
Marcos."
Although citizens are afforded the right to information and,
pursuant thereto, are entitled to "access to official records," the
Constitution does not accord them a right to compel
custodians of official records to prepare lists, abstracts,
summaries and the like in their desire to acquire information
on matters of public concern.
It must be stressed that it is essential for a writ of mandamus
to issue that the applicant has a well-defined, clear and certain
legal right to the thing demanded and that it is the imperative
duty of defendant to perform the act required. The
corresponding duty of the respondent to perform the required
act must be clear and specific [Lemi v. Valencia, G.R. No. L-
20768, November 29,1968,126 SCRA 203; Ocampo v.
Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.]
The request of the petitioners fails to meet this standard, there
being no duty on the part of respondent to prepare the list
requested.
WHEREFORE, the instant petition is hereby granted and
respondent General Manager of the Government Service
Insurance System is ORDERED to allow petitioners access to
documents and records evidencing loans granted to Members
of the former Batasang Pambansa, as petitioners may specify,
subject to reasonable regulations as to the time and manner of
inspection, not incompatible with this decision, as the GSIS
may deem necessary.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr.,
21
Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Griño-Aquino, Medialdea and Regalado, JJ., concur.
Page
Separate Opinions
CRUZ, J., concurring:
Instead of merely affixing my signature to signify my
concurrence, I write this separate opinion simply to say I have
nothing to add to Justice Irene R. Cortes' exceptionally
eloquent celebration of the right to information on matters of
public concern.
G.R. No. L-72119 May 29, 1987
VALENTIN L. LEGASPI, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.
CORTES, J.:
The fundamental right of the people to information on matters
of public concern is invoked in this special civil action for
mandamus instituted by petitioner Valentin L. Legaspi against
the Civil Service Commission. The respondent had earlier
denied Legaspi's request for information on the civil service
eligibilities of certain persons employed as sanitarians in the
Health Department of Cebu City. These government
employees, Julian Sibonghanoy and Mariano Agas, had
allegedly represented themselves as civil service eligibles who
passed the civil service examinations for sanitarians.
Claiming that his right to be informed of the eligibilities of
Julian Sibonghanoy and Mariano Agas, is guaranteed by the
Constitution, and that he has no other plain, speedy and
adequate remedy to acquire the information, petitioner prays
for the issuance of the extraordinary writ of mandamus to
compel the respondent Commission to disclose said
information.
This is not the first tune that the writ of mandamus is sought to
enforce the fundamental right to information. The same
remedy was resorted to in the case of Tanada et. al. vs. Tuvera
et. al., (G.R. No. L-63915, April 24,1985,136 SCRA 27)
wherein the people's right to be informed under the 1973
Constitution (Article IV, Section 6) was invoked in order to
compel the publication in the Official Gazette of various
presidential decrees, letters of instructions and other
presidential issuances. Prior to the recognition of the right in
said Constitution the statutory right to information provided
for in the Land Registration Act (Section 56, Act 496, as
amended) was claimed by a newspaper editor in another
mandamus proceeding, this time to demand access to the
records of the Register of Deeds for the purpose of gathering
data on real estate transactions involving aliens (Subido vs.
Ozaeta, 80 Phil. 383 [1948]).
The constitutional right to information on matters of public
concern first gained recognition in the Bill of Rights, Article
IV, of the 1973 Constitution, which states:
Sec. 6. The right of the people to information on matters of
public concern shall be recognized. Access to official records,
and to documents and papers pertaining to official acts,
transactions, or decisions, shall be afforded the citizen subject
to such limitations as may be provided by law.
The foregoing provision has been retained and the right
therein provided amplified in Article III, Sec. 7 of the 1987
Constitution with the addition of the phrase, "as well as to
government research data used as basis for policy
development." The new provision reads:
The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions,
or decisions, as well as to government research data used as
basis. for policy development, shall be afforded the citizen,
subject to such stations as may be provided by law.
These constitutional provisions are self-executing. They
supply the rules by means of which the right to information
may be enjoyed (Cooley, A Treatise on the Constitutional
Limitations 167 [1927]) by guaranteeing the right and
mandating the duty to afford access to sources of information.
Hence, the fundamental right therein recognized may be
asserted by the people upon the ratification of the constitution
without need for any ancillary act of the Legislature. (Id. at, p.
165) What may be provided for by the Legislature are
reasonable conditions and limitations upon the access to be
afforded which must, of necessity, be consistent with the
declared State policy of full public disclosure of all
transactions involving public interest (Constitution, Art. 11,
Sec. 28). However, it cannot be overemphasized that whatever
limitation may be prescribed by the Legislature, the right and
the duty under Art. III Sec. 7 have become operative and
enforceable by virtue of the adoption of the New Charter.
Therefore, the right may be properly invoked in a mandamus
proceeding such as this one.
The Solicitor General interposes procedural objections to Our
giving due course to this Petition. He challenges the
petitioner's standing to sue upon the ground that the latter does
not possess any clear legal right to be informed of the civil
service eligibilities of the government employees concerned.
He calls attention to the alleged failure of the petitioner to
show his actual interest in securing this particular information.
He further argues that there is no ministerial duty on the part
of the Commission to furnish the petitioner with the
information he seeks.
1. To be given due course, a Petition for mandamus must have
been instituted by a party aggrieved by the alleged inaction of
22
any tribunal, corporation, board or person which unlawfully
excludes said party from the enjoyment of a legal right. (Ant;-
Page
Chinese League of the Philippines vs. Felix, 77 Phil. 1012
[1947]). The petitioner in every case must therefore be an
"aggrieved party" in the sense that he possesses a clear legal
right to be enforced and a direct interest in the duty or act to be
performed.
In the case before Us, the respondent takes issue on the
personality of the petitioner to bring this suit. It is asserted
that, the instant Petition is bereft of any allegation of
Legaspi's actual interest in the civil service eligibilities of
Julian Sibonghanoy and Mariano Agas, At most there is a
vague reference to an unnamed client in whose behalf he had
allegedly acted when he made inquiries on the subject
(Petition, Rollo, p. 3).
But what is clear upon the face of the Petition is that the
petitioner has firmly anchored his case upon the right of the
people to information on matters of public concern, which, by
its very nature, is a public right. It has been held that:
* * * when the question is one of public right and the object of
the mandamus is to procure the enforcement of a public duty,
the people are regarded as the real party in interest and the
relator at whose instigation the proceedings are instituted need
not show that he has any legal or special interest in the result,
it being sufficient to show that he is a citizen and as such
interested in the execution of the laws * * * (Tanada et. al. vs.
Tuvera, et. al., G.R. No. L- 63915, April 24, 1985, 136 SCRA
27, 36).
From the foregoing, it becomes apparent that when a
mandamus proceeding involves the assertion of a public right,
the requirement of personal interest is satisfied by the mere
fact that the petitioner is a citizen, and therefore, part of the
general "public" which possesses the right.
The Court had opportunity to define the word "public" in
the Subido case, supra, when it held that even those who have
no direct or tangible interest in any real estate transaction are
part of the "public" to whom "(a)ll records relating to
registered lands in the Office of the Register of Deeds shall be
open * * *" (Sec. 56, Act No. 496, as amended). In the words
of the Court:
* * * "Public" is a comprehensive, all-inclusive term. Properly
construed, it embraces every person. To say that only those
who have a present and existing interest of a pecuniary
character in the particular information sought are given the
right of inspection is to make an unwarranted distinction. ***
(Subido vs. Ozaeta, supra at p. 387).
The petitioner, being a citizen who, as such is clothed with
personality to seek redress for the alleged obstruction of the
exercise of the public right. We find no cogent reason to deny
his standing to bring the present suit.
2. For every right of the people recognized as fundamental,
there lies a corresponding duty on the part of those who
govern, to respect and protect that right. That is the very
essence of the Bill of Rights in a constitutional regime. Only
governments operating under fundamental rules defining the
limits of their power so as to shield individual rights against its
arbitrary exercise can properly claim to be constitutional
(Cooley, supra, at p. 5). Without a government's acceptance of
the limitations imposed upon it by the Constitution in order to
uphold individual liberties, without an acknowledgment on its
part of those duties exacted by the rights pertaining to the
citizens, the Bill of Rights becomes a sophistry, and liberty,
the ultimate illusion.
In recognizing the people's right to be informed, both the 1973
Constitution and the New Charter expressly mandate the duty
of the State and its agents to afford access to official records,
documents, papers and in addition, government research data
used as basis for policy development, subject to such
limitations as may be provided by law. The guarantee has been
further enhanced in the New Constitution with the adoption of
a policy of full public disclosure, this time "subject to
reasonable conditions prescribed by law," in Article 11,
Section 28 thereof, to wit:
Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all
its transactions involving public interest. (Art. 11, Sec. 28).
In the Tanada case, supra, the constitutional guarantee was
bolstered by what this Court declared as an imperative duty of
the government officials concerned to publish all important
legislative acts and resolutions of a public nature as well as all
executive orders and proclamations of general applicability.
We granted mandamus in said case, and in the process, We
found occasion to expound briefly on the nature of said duty:
* * * That duty must be enforced if the Constitutional right of
the people to be informed on matters of public concern is to be
given substance and reality. The law itself makes a list of what
should be published in the Official Gazette. Such listing, to
our mind, leaves respondents with no discretion whatsoever
as to what must be in included or excluded from such
publication. (Tanada v. Tuvera, supra, at 39). (Emphasis
supplied).
The absence of discretion on the part of government agencia
es in allowing the examination of public records, specifically,
the records in the Office of the Register of Deeds, is
emphasized in Subido vs. Ozaeta, supra:
Except, perhaps when it is clear that the purpose of the
examination is unlawful, or sheer, idle curiosity, we do not
believe it is the duty under the law of registration officers to
concern themselves with the motives, reasons, and objects of
the person seeking access to the records. It is not their
prerogative to see that the information which the records
contain is not flaunted before public gaze, or that scandal is
not made of it. If it be wrong to publish the contents of the
records, it is the legislature and not the officials having
23
custody thereof which is called upon to devise a remedy. ***
(Subido v. Ozaeta, supra at 388). (Emphasis supplied).
Page
It is clear from the foregoing pronouncements of this Court
that government agencies are without discretion in refusing
disclosure of, or access to, information of public concern. This
is not to lose sight of the reasonable regulations which may be
imposed by said agencies in custody of public records on the
manner in which the right to information may be exercised by
the public. In the Subido case, We recognized the authority of
the Register of Deeds to regulate the manner in which persons
desiring to do so, may inspect, examine or copy records
relating to registered lands. However, the regulations which
the Register of Deeds may promulgate are confined to:
* * * prescribing the manner and hours of examination to the
end that damage to or loss of, the records may be avoided, that
undue interference with the duties of the custodian of the
books and documents and other employees may be prevented,
that the right of other persons entitled to make inspection may
be insured * * * (Subido vs. Ozaeta, 80 Phil. 383, 387)
Applying the Subido ruling by analogy, We recognized a
similar authority in a municipal judge, to regulate the manner
of inspection by the public of criminal docket records in the
case of Baldoza vs. Dimaano (Adm. Matter No. 1120-MJ,
May 5, 1976, 71 SCRA 14). Said administrative case was filed
against the respondent judge for his alleged refusal to allow
examination of the criminal docket records in his sala. Upon a
finding by the Investigating Judge that the respondent had
allowed the complainant to open and view the subject records,
We absolved the respondent. In effect, We have also held that
the rules and conditions imposed by him upon the manner of
examining the public records were reasonable.
In both the Subido and the Baldoza cases, We were emphatic
in Our statement that the authority to regulate the manner of
examining public records does not carry with it the power to
prohibit. A distinction has to be made between the discretion
to refuse outright the disclosure of or access to a particular
information and the authority to regulate the manner in which
the access is to be afforded. The first is a limitation upon the
availability of access to the information sought, which only the
Legislature may impose (Art. III, Sec. 6, 1987 Constitution).
The second pertains to the government agency charged with
the custody of public records. Its authority to regulate access is
to be exercised solely to the end that damage to, or loss of,
public records may be avoided, undue interference with the
duties of said agencies may be prevented, and more
importantly, that the exercise of the same constitutional right
by other persons shall be assured (Subido vs. Ozaetal supra).
Thus, while the manner of examining public records may be
subject to reasonable regulation by the government agency in
custody thereof, the duty to disclose the information of public
concern, and to afford access to public records cannot be
discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of
such agencies. Otherwise, the enjoyment of the constitutional
right may be rendered nugatory by any whimsical exercise of
agency discretion. The constitutional duty, not being
discretionary, its performance may be compelled by a writ of
mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case
before Us, the public right to be enforced and the concomitant
duty of the State are unequivocably set forth in the
Constitution. The decisive question on the propriety of the
issuance of the writ of mandamus in this case is, whether the
information sought by the petitioner is within the ambit of the
constitutional guarantee.
3. The incorporation in the Constitution of a guarantee of
access to information of public concern is a recognition of the
essentiality of the free flow of ideas and information in a
democracy (Baldoza v. Dimaano, Adm. Matter No. 1120-MJ,
May 5, 1976, 17 SCRA 14). In the same way that free
discussion enables members of society to cope with the
exigencies of their time (Thornhill vs. Alabama, 310 U.S.
88,102 [1939]), access to information of general interest aids
the people in democratic decision-making (87 Harvard Law
Review 1505 [1974]) by giving them a better perspective of
the vital issues confronting the nation.
But the constitutional guarantee to information on matters of
public concern is not absolute. It does not open every door to
any and all information. Under the Constitution, access to
official records, papers, etc., are "subject to limitations as may
be provided by law" (Art. III, Sec. 7, second sentence). The
law may therefore exempt certain types of information from
public scrutiny, such as those affecting national security
(Journal No. 90, September 23, 1986, p. 10; and Journal No.
91, September 24, 1986, p. 32, 1986 Constitutional
Commission). It follows that, in every case, the availability of
access to a particular public record must be circumscribed by
the nature of the information sought, i.e., (a) being of public
concern or one that involves public interest, and, (b) not being
exempted by law from the operation of the constitutional
guarantee. The threshold question is, therefore, whether or not
the information sought is of public interest or public concern.
a. This question is first addressed to the government agency
having custody of the desired information. However, as
already discussed, this does not give the agency concerned any
discretion to grant or deny access. In case of denial of access,
the government agency has the burden of showing that the
information requested is not of public concern, or, if it is of
public concern, that the same has been exempted by law from
the operation of the guarantee. To hold otherwise will serve to
dilute the constitutional right. As aptly observed, ". . . the
government is in an advantageous position to marshall and
interpret arguments against release . . ." (87 Harvard Law
Review 1511 [1974]). To safeguard the constitutional right,
every denial of access by the government agency concerned is
subject to review by the courts, and in the proper case, access
may be compelled by a writ of Mandamus.
In determining whether or not a particular information is of
public concern there is no rigid test which can be applied.
"Public concern" like "public interest" is a term that eludes
24
exact definition. Both terms embrace a broad spectrum of
subjects which the public may want to know, either because
Page
these directly affect their lives, or simply because such matters
naturally arouse the interest of an ordinary citizen. In the final
analysis, it is for the courts to determine in a case by case basis WHEREFORE, the Civil Service Commission is ordered to
whether the matter at issue is of interest or importance, as it open its register of eligibles for the position of sanitarian, and
relates to or affects the public. to confirm or deny, the civil service eligibility of Julian
Sibonghanoy and Mariano Agas, for said position in the
The public concern invoked in the case of Tanada v. Tuvera, Health Department of Cebu City, as requested by the
supra, was the need for adequate notice to the public of the petitioner Valentin L. Legaspi.
various laws which are to regulate the actions and conduct of
citizens. In Subido vs. Ozaeta, supra, the public concern Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera,
deemed covered by the statutory right was the knowledge of Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin and
those real estate transactions which some believed to have Sarmiento, JJ., concur.
been registered in violation of the Constitution.
Feliciano, J., is on leave.
The information sought by the petitioner in this case is the
truth of the claim of certain government employees that they
are civil service eligibles for the positions to which they were
appointed. The Constitution expressly declares as a State
policy that:

Appointments in the civil service shall be made only

according to merit and fitness to be determined, as far as
practicable, and except as to positions which are policy
determining, primarily confidential or highly technical, by
competitive examination. (Art. IX, B, Sec. 2.[2]).

Public office being a public trust, [Const. Art. XI, Sec. 1] it is

the legitimate concern of citizens to ensure that government
positions requiring civil service eligibility are occupied only
by persons who are eligibles. Public officers are at all times
accountable to the people even as to their eligibilities for their
respective positions.

b. But then, it is not enough that the information sought is of

public interest. For mandamus to lie in a given case, the
information must not be among the species exempted by law
from the operation of the constitutional guarantee.

In the instant, case while refusing to confirm or deny the

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

The civil service eligibility of a sanitarian being of public

concern, and in the absence of express limitations under the
law upon access to the register of civil service eligibles for
said position, the duty of the respondent Commission to
25

confirm or deny the civil service eligibility of any person

occupying the position becomes imperative. Mandamus,
Page

therefore lies.

 G.R. No. 110249 August 21, 1997
ALFREDO TANO, BALDOMERO TANO, ,
vs.
HON. GOV. SALVADOR P. SOCRATES, MEMBERS OF
SANGGUNIANG
DAVIDE, JR., J.:
Petitioners caption their petition as one for "Certiorari,
Injunction With Preliminary and Mandatory Injunction, with
Prayer for Temporary Restraining Order" and pray that this
Court: (1) declare as unconstitutional: (a) Ordinance No. 15-
92, dated 15 December 1992, of the Sangguniang Panglungsod
of Puerto Princesa; (b) Office Order No. 23, Series of 1993,
dated 22 January 1993, issued by Acting City Mayor Amado
L. Lucero of Puerto Princesa City; and (c) Resolution No. 33,
Ordinance No. 2, Series of 1993, dated 19 February 1993, of
the Sangguniang Panlalawigan of Palawan; (2) enjoin the
enforcement thereof; and (3) restrain respondents Provincial
and City Prosecutors of Palawan and Puerto Princesa City and
Judges of the Regional Trial Courts, Metropolitan Trial
Courts 1 and Municipal Circuit Trial Courts in Palawan from
assuming jurisdiction over and hearing cases concerning the
violation of the Ordinances and of the Office Order.
More appropriately, the petition is, and shall be treated as, a
special civil action for certiorari and prohibition.
The following is petitioners' summary of the factual
antecedents giving rise to the petition:
1. On December 15, 1992, the Sangguniang Panlungsod ng
Puerto Princesa City enacted Ordinance No. 15-92 which took
effect on January 1, 1993 entitled: "AN ORDINANCE
BANNING THE SHIPMENT OF ALL LIVE FISH AND
LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM
JANUARY 1, 1993 TO JANUARY 1, 1998 AND
PROVIDING EXEMPTIONS, PENALTIES AND FOR
OTHER PURPOSES THEREOF", the full text of which reads
as follows:
Sec. 1. Title of the Ordinance. — This Ordinance is entitled:
AN ORDINANCE BANNING THE SHIPMENT OF ALL
LIVE FISH AND LOBSTER OUTSIDE PUERTO
PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY
1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES
AND FOR OTHER PURPOSES THEREOF.
Sec. 2. Purpose, Scope and Coverage. — To effectively free
our City Sea Waters from Cyanide and other Obnoxious
substance[s], and shall cover all persons and/or entities
operating within and outside the City of Puerto Princesa who
is are (sic) directly or indirectly in the business or shipment of
live fish and lobster outside the City.
Sec. 3. Definition of terms. — For purpose of this Ordinance
the following are hereby defined:
A. SEA BASS — A kind of fish under the family of
Centropomidae, better known as APAHAP;
B. CATFISH — A kind of fish under the family of Plotosidae,
better known as HITO-HITO;
C. MUDFISH — A kind of fish under the family of
Orphicaphalisae better known as DALAG;
D. ALL LIVE FISH — All alive, breathing not necessarily
moving of all specie[s] use[d] for food and for aquarium
purposes.
E. LIVE LOBSTER — Several relatively, large marine
crusteceans [sic] of the genus Homarus that are alive and
breathing not necessarily moving.
Sec. 4. It shall be unlawful [for] any person or any business
enterprise or company to ship out from Puerto Princesa City to
any point of destination either via aircraft or seacraft of any
live fish and lobster except SEA BASS, CATFISH,
MUDFISH, AND MILKFISH FRIES.
Sec. 5. Penalty Clause. — Any person/s and or business entity
violating this Ordinance shall be penalized with a fine of not
more than P5,000.00 or imprisonment of not more than twelve
(12) months, cancellation of their permit to do business in the
City of Puerto Princesa or all of the herein stated penalties,
upon the discretion of the court.
Sec. 6. If the owner and/or operator of the establishment found
violating the provisions of this ordinance is a corporation or a
partnership, the penalty prescribed in Section 5 hereof shall be
imposed upon its president and/or General Manager or
Managing Partner and/or Manager, as the case maybe [sic].
Sec. 7. Any existing ordinance or any provision of any
ordinance inconsistent to [sic] this ordinance is deemed
repealed.
Sec. 8. This Ordinance shall take effect on January 1, 1993.
26
SO ORDAINED.
Page
xxx xxx xxx
2. To implement said city ordinance, then Acting City Mayor
Amado L. Lucero issued Office Order No. 23, Series of 1993
dated January 22, 1993 which reads as follows:
In the interest of public service and for purposes of City
Ordinance No. PD 426-14-74, otherwise known as "AN
ORDINANCE REQUIRING ANY PERSON ENGAGED OR
INTENDING TO ENGAGE IN ANY BUSINESS, TRADE,
OCCUPATION, CALLING OR PROFESSION OR HAVING
IN HIS POSSESSION ANY OF THE ARTICLES FOR
WHICH A PERMIT IS REQUIRED TO BE HAD, TO
OBTAIN FIRST A MAYOR'S PERMIT" and "City
Ordinance No. 15-92, AN ORDINANCE BANNING THE
SHIPMENT OF ALL LIVE FISH AND LOBSTER
OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1,
1993 TO JANUARY 1, 1998, you are hereby authorized and
directed to check or conduct necessary inspections on cargoes
containing live fish and lobster being shipped out from the
Puerto Princesa Airport, Puerto Princesa Wharf or at any port
within the jurisdiction of the City to any point of destinations
[sic] either via aircraft or seacraft.
The purpose of the inspection is to ascertain whether the
shipper possessed the required Mayor's Permit issued by this
Office and the shipment is covered by invoice or clearance
issued by the local office of the Bureau of Fisheries and
Aquatic Resources and as to compliance with all other existing
rules and regulations on the matter.
Any cargo containing live fish and lobster without the required
documents as stated herein must be held for proper
disposition.
In the pursuit of this Order, you are hereby authorized to
coordinate with the PAL Manager, the PPA Manager, the local
PNP Station and other offices concerned for the needed
support and cooperation. Further, that the usual courtesy and
diplomacy must be observed at all times in the conduct of the
inspection.
Please be guided accordingly.
xxx xxx xxx
3. On February 19, 1993, the Sangguniang Panlalawigan,
Provincial Government of Palawan enacted Resolution No. 33
entitled: "A RESOLUTION PROHIBITING THE
CATCHING, GATHERING, POSSESSING, BUYING,
SELLING AND SHIPMENT OF LIVE MARINE CORAL
DWELLING AQUATIC ORGANISMS, TO WIT:
FAMILY: SCARIDAE (MAMENG), EPINE PHELUS
FASCIATUS (SUNO). CROMILEPTES
ALTIVELIS (PANTHER OR SENORITA), LOBSTER
BELOW 200 GRAMS AND SPAWNING, TRIDACNA
GIGAS (TAKLOBO), PINCTADA
MARGARITEFERA (MOTHER PEARL, OYSTERS, GIANT
CLAMS AND OTHER SPECIES), PENAEUS
MONODON (TIGER PRAWN-BREEDER SIZE OR
MOTHER), EPINEPHELUS SUILLUS (LOBA OR GREEN
GROUPER) AND FAMILY: BALISTIDAE (TROPICAL
AQUARIUM FISHES) FOR A PERIOD FIVE (5) YEARS IN
AND COMING FROM PALAWAN WATERS", the full text
of which reads as follows:
WHEREAS, scientific and factual researches [sic] and studies
disclose that only five (5) percent of the corals of our province
remain to be in excellent condition as [a] habitat of marine
coral dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the destruction and
devastation of the corals of our province were principally due
to illegal fishing activities like dynamite fishing, sodium
cyanide fishing, use of other obnoxious substances and other
related activities;
WHEREAS, there is an imperative and urgent need to protect
and preserve the existence of the remaining excellent corals
and allow the devastated ones to reinvigorate and regenerate
themselves into vitality within the span of five (5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of the [sic] R.A.
7160 otherwise known as the Local Government Code of 1991
empowers the Sangguniang Panlalawigan to protect the
environment and impose appropriate penalties [upon] acts
which endanger the environment such as dynamite fishing and
other forms of destructive fishing, among others.
NOW, THEREFORE, on motion by Kagawad Nelson P.
Peneyra and upon unanimous decision of all the members
present;
Be it resolved as it is hereby resolved, to approve Resolution
No. 33, Series of 1993 of the Sangguniang Panlalawigan and
to enact Ordinance No. 2 for the purpose, to wit:
ORDINANCE NO. 2
Series of 1993
BE IT ORDAINED BY THE SANGGUNIANG
PANLALAWIGAN IN SESSION ASSEMBLED:
Sec. 1. TITLE — This Ordinance shall be known as an
"Ordinance Prohibiting the catching, gathering, possessing,
buying, selling and shipment of live marine coral dwelling
aquatic organisms, to wit: 1. Family: Scaridae (Mameng), 2.
Epinephelus Fasciatus (Suno) 3. Cromileptes altivelis (Panther
or Senorita), lobster below 200 grams and spawning), 4.
Tridacna Gigas (Taklobo), 5. Pinctada Margaretefera (Mother
Pearl, Oysters, Giant Clams and other species), 6. Penaeus
Monodon (Tiger Prawn-breeder size or mother), 7.
Epinephelus Suillus (Loba or Green Grouper) and 8. Family:
Balistidae (T[r]opical Aquarium Fishes) for a period of five
(5) years in and coming from Palawan Waters.
27
Sec. II. PRELIMINARY CONSIDERATIONS
Page
1. Sec. 2-A (Rep. Act 7160). It is hereby declared, the policy
of the state that the territorial and political subdivisions of the
State shall enjoy genuine and meaningful local autonomy to
enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the
attainment of national goals. Toward this end, the State shall
provide for [a] more responsive and accountable local
government structure instituted through a system of
decentralization whereby local government units shall be
given more powers, authority, responsibilities and resources.
2. Sec. 5-A (R.A. 7160). Any provision on a power of [a] local
Government Unit shall be liberally interpreted in its favor, and
in case of doubt, any question thereon shall be resolved in
favor of devolution of powers and of the lower government
units. "Any fair and reasonable doubts as to the existence of
the power shall be interpreted in favor of the Local
Government Unit concerned."
3. Sec. 5-C (R.A. 7160). The general welfare provisions in this
Code shall be liberally interpreted to give more powers to
local government units in accelerating economic development
and upgrading the quality of life for the people in the
community.
4. Sec. 16 (R.A. 7160). General Welfare. — Every local
government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance; and those which are essential to the
promotion of the general welfare.
Sec. III. DECLARATION OF POLICY. — It is hereby
declared to be the policy of the Province of Palawan to protect
and conserve the marine resources of Palawan not only for the
greatest good of the majority of the present generation but
with [the] proper perspective and consideration of [sic] their
prosperity, and to attain this end, the Sangguniang
Panlalawigan henceforth declares that is (sic) shall be
unlawful for any person or any business entity to engage in
catching, gathering, possessing, buying, selling and shipment
of live marine coral dwelling aquatic organisms as enumerated
in Section 1 hereof in and coming out of Palawan Waters for a
period of five (5) years;
Sec. IV. PENALTY CLAUSE. — Any person and/or business
entity violating this Ordinance shall be penalized with a fine of
not more than Five Thousand Pesos (P5,000.00), Philippine
Currency, and/or imprisonment of six (6) months to twelve
(12) months and confiscation and forfeiture of paraphernalias
[sic] and equipment in favor of the government at the
discretion of the Court;
Sec. V. SEPARABILITY CLAUSE. — If for any reason, a
Section or provision of this Ordinance shall be held as
unconditional [sic] or invalid, it shall not affect the other
provisions hereof.
Sec. VI. REPEALING CLAUSE. — Any existing Ordinance
or a provision of any ordinance inconsistent herewith is
deemed modified, amended or repealed.
Sec. VII. EFFECTIVITY — This Ordinance shall take effect
ten (10) days after its publication.
SO ORDAINED.
xxx xxx xxx
4. The respondents implemented the said ordinances, Annexes
"A" and "C" hereof thereby depriving all the fishermen of the
whole province of Palawan and the City of Puerto Princesa of
their only means of livelihood and the petitioners Airline
Shippers Association of Palawan and other marine merchants
from performing their lawful occupation and trade;
5. Petitioners Alfredo Tano, Baldomero Tano, Teocenes
Midello, Angel de Mesa, Eulogio Tremocha, and Felipe
Ongonion, Jr. were even charged criminally under criminal
case no. 93-05-C in the 1st Municipal Circuit Trial Court of
Cuyo-Agutaya-Magsaysay, an original carbon copy of the
criminal complaint dated April 12, 1993 is hereto attached as
Annex "D"; while xerox copies are attached as Annex "D" to
the copies of the petition;
6. Petitioners Robert Lim and Virginia Lim, on the other hand,
were charged by the respondent PNP with the respondent City
Prosecutor of Puerto Princess City, a xerox copy of the
complaint is hereto attached as Annex "E";
Without seeking redress from the concerned local government
units, prosecutor's office and courts, petitioners directly
invoked our original jurisdiction by filing this petition on 4
June 1993. In sum, petitioners contend that:
First, the Ordinances deprived them of due process of law,
their livelihood, and unduly restricted them from the practice
of their trade, in violation of Section 2, Article XII and
Sections 2 and 7 of Article XIII of the 1987 Constitution.
Second, Office Order No. 23 contained no regulation nor
condition under which the Mayor's permit could be granted or
denied; in other words, the Mayor had the absolute authority
to determine whether or not to issue the permit.
Third, as Ordinance No. 2 of the Province of Palawan
"altogether prohibited the catching, gathering, possession,
buying, selling and shipping of live marine coral dwelling
organisms, without any distinction whether it was caught or
gathered through lawful fishing method," the Ordinance took
away the right of petitioners-fishermen to earn their livelihood
in lawful ways; and insofar as petitioners-members of Airline
Shippers Association are concerned, they were unduly
28
prevented from pursuing their vocation and entering "into
contracts which are proper, necessary, and essential to carry
Page
out their business endeavors to a successful conclusion."
Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan
is null and void, the criminal cases based thereon against
petitioners Tano and the others have to be dismissed.
In the Resolution of 15 June 1993 we required respondents to
comment on the petition, and furnished the Office of the
Solicitor General with a copy thereof.
In their comment filed on 13 August 1993, public respondents
Governor Socrates and Members of the Sangguniang
Panlalawigan of Palawan defended the validity of Ordinance
No. 2, Series of 1993, as a valid exercise of the Provincial
Government's power under the general welfare clause (Section
16 of the Local Government Code of 1991 [hereafter, LGC]),
and its specific power to protect the environment and impose
appropriate penalties for acts which endanger the environment,
such as dynamite fishing and other forms of destructive
fishing under Section 447 (a) (1) (vi), Section 458 (a) (1) (vi),
and Section 468 (a) (1) (vi), of the LGC. They claimed that in
the exercise of such powers, the Province of Palawan had "the
right and responsibility . . . to insure that the remaining coral
reefs, where fish dwells [sic], within its territory remain
healthy for the future generation." The Ordinance, they further
asserted, covered only live marine coral dwelling aquatic
organisms which were enumerated in the ordinance and
excluded other kinds of live marine aquatic organisms not
dwelling in coral reefs; besides the prohibition was for only
five (5) years to protect and preserve the pristine coral and
allow those damaged to regenerate.
Aforementioned respondents likewise maintained that there
was no violation of the due process and equal protection
clauses of the Constitution. As to the former, public hearings
were conducted before the enactment of the Ordinance which,
undoubtedly, had a lawful purpose and employed reasonable
means; while as to the latter, a substantial distinction existed
"between a fisherman who catches live fish with the intention
of selling it live, and a fisherman who catches live fish with no
intention at all of selling it live," i.e., "the former uses sodium
cyanide while the latter does not." Further, the Ordinance
applied equally to all those belonging to one class.
On 25 October 1993 petitioners filed an Urgent Plea for the
Immediate Issuance of a Temporary Restraining Order,
claiming that despite the pendency of this case, Branch 50 of
the Regional Trial Court of Palawan was bent on proceeding
with Criminal Case No. 11223 against petitioners Danilo
Tano, Alfredo Tano, Eulogio Tremocha, Romualdo Tano,
Baldomero Tano, Andres Linijan and Angel de Mesa for
violation of Ordinance No. 2 of the Sangguniang Panlalawigan
of Palawan. Acting on said plea, we issued on 11 November
1993 a temporary restraining order directing Judge Angel
Miclat of said court to cease and desist from proceeding with
the arraignment and pre-trial of Criminal Case No. 11223.
On 12 July 1994, we excused the Office of the Solicitor
General from filing a comment, considering that as claimed by
said office in its Manifestation of 28 June 1994, respondents
were already represented by counsel.
The rest of the respondents did not file any comment on the
petition.
In the resolution of 15 September 1994, we resolved to
consider the comment on the petition as the Answer, gave due
course to the petition and required the parties to submit their
respective memoranda. 2
On 22 April 1997 we ordered impleaded as party respondents
the Department of Agriculture and the Bureau of Fisheries and
Aquatic Resources and required the Office of the Solicitor
General to comment on their behalf. But in light of the latter's
motion of 9 July 1997 for an extension of time to file the
comment which would only result in further delay, we
dispensed with said comment.
After due deliberation on the pleadings filed, we resolved to
dismiss this petition for want of merit, and on 22 July 1997,
assigned it to the ponente to write the opinion of the Court.
I
There are actually two sets of petitioners in this case. The first
is composed of Alfredo Tano, Baldomero Tano, Danilo Tano,
Romualdo Tano, Teocenes Midello, Angel de Mesa, Eulogio
Tremocha, Felipe Ongonion, Jr., Andres Linijan, and Felimon
de Mesa, who were criminally charged with violating
Sangguniang Panlalawigan Resolution No. 33 and Ordinance
No. 2, Series of 1993, of the Province of Palawan, in Criminal
Case No. 93-05-C of the 1st Municipal Circuit Trial Court
(MCTC) of Palawan; 3 and Robert Lim and Virginia Lim who
were charged with violating City Ordinance No. 15-92 of
Puerto Princesa City and Ordinance No. 2, Series of 1993, of
the Province of Palawan before the Office of the City
Prosecutor of Puerto Princesa. 4 All of them, with the
exception of Teocenes Midello, Felipe Ongonion, Jr., Felimon
de Mesa, Robert Lim and Virginia Lim, are likewise the
accused in Criminal Case No. 11223 for the violation of
Ordinance No. 2 of the Sangguniang Panlalawigan of
Palawan, pending before Branch 50 of the Regional Trial
Court of Palawan. 5
The second set of petitioners is composed of the rest of the
petitioners numbering seventy-seven (77), all of whom, except
the Airline Shippers Association of Palawan — an alleged
private association of several marine merchants — are natural
persons who claim to be fishermen.
The primary interest of the first set of petitioners is, of course,
to prevent the prosecution, trial and determination of the
criminal cases until the constitutionality or legality of the
Ordinances they allegedly violated shall have been resolved.
The second set of petitioners merely claim that being
fishermen or marine merchants, they would be adversely
affected by the ordinance's.
29
As to the first set of petitioners, this special civil
Page
for certiorari must fail on the ground of prematurity
amounting to a lack of cause of action. There is no showing
that said petitioners, as the accused in the criminal cases, have
filed motions to quash the informations therein and that the
same were denied. The ground available for such motions is
that the facts charged therein do not constitute an offense
because the ordinances in question are unconstitutional. 6 It
cannot then be said that the lower courts acted without or in
excess of jurisdiction or with grave abuse of discretion to
justify recourse to the extraordinary remedy of certiorari or
prohibition. It must further be stressed that even if petitioners
did file motions to quash, the denial thereof would not
forthwith give rise to a cause of action under Rule 65 of the
Rules of Court. The general rule is that where a motion to
quash is denied, the remedy therefrom is not certiorari, but for
the party aggrieved thereby to go to trial without prejudice to
reiterating special defenses involved in said motion, and if,
after trial on the merits an adverse decision is rendered, to
appeal therefrom in the manner authorized by law. 7 And,
even where in an exceptional circumstance such denial may be
the subject of a special civil action for certiorari, a motion for
reconsideration must have to be filed to allow the court
concerned an opportunity to correct its errors, unless such
motion may be dispensed with because of existing exceptional
circumstances. 8 Finally, even if a motion for reconsideration
has been filed and denied, the remedy under Rule 65 is still
unavailable absent any showing of the grounds provided for in
Section 1 thereof. 9 For obvious reasons, the petition at bar
does not, and could not have, alleged any of such grounds.
As to the second set of petitioners, the instant petition is
obviously one for DECLARATORY RELIEF, i.e., for a
declaration that the Ordinances in question are a "nullity . . .
for being unconstitutional."10 As such, their petition must
likewise fail, as this Court is not possessed of original
jurisdiction over petitions for declaratory relief even if only
questions of law are involved, 11 it being settled that the Court
merely exercises appellate jurisdiction over such petitions.12
II
Even granting arguendo that the first set of petitioners have a
cause of action ripe for the extraordinary writ of certiorari,
there is here a clear disregard of the hierarchy of courts, and
no special and important reason or exceptional and compelling
circumstance has been adduced why direct recourse to us
should be allowed. While we have concurrent jurisdiction with
Regional Trial courts and with the Court of Appeals to issue
writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction, such concurrence
gives petitioners no unrestricted freedom of choice of court
forum, so we held in People v. Cuaresma.13
This concurrence of jurisdiction is not . . . to be taken as
according to parties seeking any of the writs an absolute
unrestrained freedom of choice of the court to which
application therefor will be directed. There is after all
hierarchy of courts. That hierarchy is determinative of the
venue of appeals, and should also serve as a general
determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial
hierarchy most certainly indicates that petitions for the
issuance of extraordinary writs against first level ("inferior")
courts should be filed with the Regional Trial Court, and those
against the latter, with the Court of Appeals. A direct
invocation of the Supreme Court's original jurisdiction to issue
these writs should be allowed only when there are special and
important reasons therefor, clearly and specifically set out in
the petition. This is established policy. It is a policy necessary
to prevent inordinate demands upon the Court's time and
attention which are better devoted to those matters within its
exclusive jurisdiction, and to prevent further over-crowding of
the Court's docket. . . .
The Court feels the need to reaffirm that policy at this time,
and to enjoin strict adherence thereto in the light of what it
perceives to be a growing tendency on the part of litigants and
lawyers to have their applications for the so-called
extraordinary writs, and sometimes even their appeals, passed
upon and adjudicated directly and immediately by the highest
tribunal of the land. . . .
In Santiago v. Vasquez,14 this Court forcefully expressed that
the propensity of litigants and lawyers to disregard the
hierarchy of courts must be put to a halt, not only because of
the imposition upon the precious time of this Court, but also
because of the inevitable and resultant delay, intended or
otherwise, in the adjudication of the case which often has to be
remanded or referred to the lower court, the proper forum
under the rules of procedure, or as better equipped to resolve
the issues since this Court is not a trier of facts. We reiterated
"the judicial policy that this Court will not entertain direct
resort to it unless the redress desired cannot be obtained in the
appropriate courts or where exceptional and compelling
circumstances justify availment of a remedy within and calling
for the exercise of [its] primary jurisdiction."
III
Notwithstanding the foregoing procedural obstacles against
the first set of petitioners, we opt to resolve this case on its
merits considering that the lifetime of the challenged
Ordinances is about to end. Ordinance No. 15-92 of the City
of Puerto Princesa is effective only up to 1 January 1998,
while Ordinance No. 2 of the Province of Palawan, enacted on
19 February 1993, is effective for only five (5) years. Besides,
these Ordinances were undoubtedly enacted in the exercise of
powers under the new LGC relative to the protection and
preservation of the environment and are thus novel and of
paramount importance. No further delay then may be allowed
in the resolution of the issues raised.
It is of course settled that laws (including ordinances enacted
by local government units) enjoy the presumption of
constitutionality. 15 To overthrow this presumption, there must
be a clear and unequivocal breach of the Constitution, not
merely a doubtful or argumentative contradiction. In short, the
conflict with the Constitution must be shown beyond
30
reasonable doubt.16 Where doubt exists, even if well-founded,
there can be no finding of unconstitutionality. To doubt is to
Page
sustain.17
After a scrutiny of the challenged Ordinances and the
provisions of the Constitution petitioners claim to have been
violated, we find petitioners' contentions baseless and so hold
that the former do not suffer from any infirmity, both under
the Constitution and applicable laws.
Petitioners specifically point to Section 2, Article XII and
Sections 2 and 7, Article XIII of the Constitution as having
been transgressed by the Ordinances.
The pertinent portion of Section 2 of Article XII reads:
Sec. 2. . . .
The State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea, and exclusive economic
zone, and reserve its use and enjoyment exclusively to Filipino
citizens.
The Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens, as well as cooperative
fish farming, with priority to subsistence fishermen and
fishworkers in rivers, lakes, bays, and lagoons.
Sections 2 and 7 of Article XIII provide:
Sec. 2. The promotion of social justice shall include the
commitment to create economic opportunities based on
freedom of initiative and self-reliance.
xxx xxx xxx
Sec. 7. The State shall protect the rights of subsistence
fishermen, especially of local communities, to the preferential
use of the communal marine and fishing resources, both inland
and offshore. It shall provide support to such fishermen
through appropriate technology and research, adequate
financial, production, and marketing assistance, and other
services. The State shall also protect, develop, and conserve
such resources. The protection shall extend to offshore fishing
grounds of subsistence fishermen against foreign intrusion.
Fishworkers shall receive a just share from their labor in the
utilization of marine and fishing resources.
There is absolutely no showing that any of the petitioners
qualifies as a subsistence or marginal fisherman. In their
petition, petitioner Airline Shippers Association of Palawan is
self-described as "a private association composed of Marine
Merchants;" petitioners Robert Lim and Virginia Lim, as
"merchants;" while the rest of the petitioners claim to be
"fishermen," without any qualification, however, as to their
status.
Since the Constitution does not specifically provide a
definition of the terms "subsistence" or "marginal"
fishermen,18 they should be construed in their general and
ordinary sense. A marginal fisherman is an individual engaged
in fishing whose margin of return or reward in his harvest of
fish as measured by existing price levels is barely sufficient to
yield a profit or cover the cost of gathering the fish, 19 while a
subsistence fisherman is one whose catch yields but the
irreducible minimum for his livelihood.20 Section 131(p) of the
LGC (R.A. No. 7160) defines a marginal farmer or fisherman
as "an individual engaged in subsistence farming or fishing
which shall be limited to the sale, barter or exchange of
agricultural or marine products produced by himself and his
immediate family." It bears repeating that nothing in the
record supports a finding that any petitioner falls within these
definitions.
Besides, Section 2 of Article XII aims primarily not to bestow
any right to subsistence fishermen, but to lay stress on the duty
of the State to protect the nation's marine wealth. What the
provision merely recognizes is that the State may allow, by
law, cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays and lagoons.
Our survey of the statute books reveals that the only provision
of law which speaks of a preferential right of marginal
fishermen is Section 149 of the LGC, which pertinently
provides:
Sec. 149. Fishery Rentals, Fees and Charges. — . . .
(b) The sangguniang bayan may:
(1) Grant fishery privileges to erect fish corrals, oyster,
mussels or other aquatic beds or bangus fry areas, within a
definite zone of the municipal waters, as determined by
it: Provided, however, That duly registered organizations and
cooperatives of marginal fishermen shall have the preferential
right to such fishery privileges . . . .
In a Joint Administrative Order No. 3 dated 25 April 1996, the
Secretary of the Department of Agriculture and the Secretary
of the Department of Interior and Local Government
prescribed guidelines concerning the preferential treatment of
small fisherfolk relative to the fishery right mentioned in
Section 149. This case, however, does not involve such fishery
right.
Anent Section 7 of Article XIII, it speaks not only of the use
of communal marine and fishing resources, but of their
protection, development and conservation. As hereafter
shown, the ordinances in question are meant precisely to
protect and conserve our marine resources to the end that their
enjoyment may be guaranteed not only for the present
generation, but also for the generations to come.
The so-called "preferential right" of subsistence or marginal
fishermen to the use of marine resources is not at all absolute.
In accordance with the Regalian Doctrine, marine resources
belong to the State, and, pursuant to the first paragraph of
Section 2, Article XII of the Constitution, their "exploration,
31
development and utilization . . . shall be under the full control
and supervision of the State." Moreover, their mandated
Page
protection, development and conservation as necessarily
recognized by the framers of the Constitution, imply certain
restrictions on whatever right of enjoyment there may be in
favor of anyone. Thus, as to the curtailment of the preferential
treatment of marginal fishermen, the following exchange
between Commissioner Francisco Rodrigo and Commissioner
Jose F.S. Bengzon, Jr., took place at the plenary session of the
Constitutional Commission:
MR. RODRIGO:
Let us discuss the implementation of this because I would not
raise the hopes of our people, and afterwards fail in the
implementation. How will this be implemented? Will there be
a licensing or giving of permits so that government officials
will know that one is really a marginal fisherman? Or if
policeman say that a person is not a marginal fisherman, he
can show his permit, to prove that indeed he is one.
MR. BENGZON:
Certainly, there will be some mode of licensing insofar as this
is concerned and this particular question could be tackled
when we discuss the Article on Local Governments —
whether we will leave to the local governments or to Congress
on how these things will be implemented. But certainly, I
think our congressmen and our local officials will not be bereft
of ideas on how to implement this mandate.
xxx xxx xxx
MR. RODRIGO:
So, once one is licensed as a marginal fisherman, he can go
anywhere in the Philippines and fish in any fishing grounds.
MR. BENGZON:
Subject to whatever rules and regulations and local laws that
may be passed, may be existing or will be passed.21 (emphasis
supplied)
What must likewise be borne in mind is the state policy
enshrined in the Constitution regarding the duty of the State to
protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of
nature. 22 On this score, in Oposa v. Factoran, 23 this Court
declared:
While the right to a balanced and healthful ecology is to be
found under the Declaration of Principles the State Policies
and not under the Bill of Rights, it does not follow that it is
less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different
category of rights altogether for it concerns nothing less than
self-preservation and self-perpetuation — aptly and fittingly
stressed by the petitioners — the advancement of which may
even be said to predate all governments and constitutions. As a
matter of fact, these basic rights need not even be written in
the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly mentioned
in the fundamental charter, it is because of the well-founded
fear of its framers that unless the rights to a balanced and
healthful ecology and to health are mandated as state policies
by the Constitution itself, thereby highlighting their continuing
importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day
would not be too far when all else would be lost not only for
the present generation, but also for those to come —
generations which stand to inherit nothing but parched earth
incapable of sustaining life.
The right to a balanced and healthful ecology carries with it a
correlative duty to refrain from impairing the environment. . . .
The LGC provisions invoked by private respondents merely
seek to give flesh and blood to the right of the people to a
balanced and healthful ecology. In fact, the General Welfare
Clause, expressly mentions this right:
Sec. 16. General Welfare. — Every local government unit
shall exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate,
or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other
things, the preservation and enrichment of culture, promote
health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among
their residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants. (emphasis
supplied).
Moreover, Section 5(c) of the LGC explicitly mandates that
the general welfare provisions of the LGC "shall be liberally
interpreted to give more powers to the local government units
in accelerating economic development and upgrading the
quality of life for the people of the community."
The LGC vests municipalities with the power to grant fishery
privileges in municipal waters and impose rentals, fees or
charges therefor; to penalize, by appropriate ordinances, the
use of explosives, noxious or poisonous substances,
electricity, muro-ami, and other deleterious methods of
fishing; and to prosecute any violation of the provisions of
applicable fishery laws.24 Further, the sangguniang bayan, the
sangguniang panlungsod and the sangguniang panlalawigan
are directed to enact ordinances for the general welfare of the
municipality and its inhabitants, which shall include, inter
alia, ordinances that "[p]rotect the environment and impose
appropriate penalties for acts which endanger the environment
such as dynamite fishing and other forms of destructive
32
fishing . . . and such other activities which result in pollution,
acceleration of eutrophication of rivers and lakes, or of
Page
ecological
imbalance."25
Finally, the centerpiece of LGC is the system of
decentralization26 as expressly mandated by the
Constitution.27 Indispensable to decentralization
is devolution and the LGC expressly provides that "[a]ny
provision on a power of a local government unit shall be
liberally interpreted in its favor, and in case of doubt, any
question thereon shall be resolved in favor of devolution of
powers and of the lower local government unit. Any fair and
reasonable doubt as to the existence of the power shall be
interpreted in favor of the local government unit
concerned."28 Devolution refers to the act by which the
National Government confers power and authority upon the
various local government units to perform specific functions
and responsibilities.29
One of the devolved powers enumerated in the section of the
LGC on devolution is the enforcement of fishery laws in
municipal waters including the conservation of
mangroves.30 This necessarily includes the enactment of
ordinances to effectively carry out such fishery laws within the
municipal waters.
The term "municipal waters," in turn, includes not only
streams, lakes, and tidal waters within the municipality, not
being the subject of private ownership and not comprised
within the national parks, public forest, timber lands, forest
reserves, or fishery reserves, but also marine waters included
between two lines drawn perpendicularly to the general
coastline from points where the boundary lines of the
municipality or city touch the sea at low tide and a third line
parallel with the general coastline and fifteen kilometers from
it.31 Under P.D. No. 704, the marine waters included in
municipal waters is limited to three nautical miles from the
general coastline using the above perpendicular lines and a
third parallel line.
These "fishery laws" which local government units may
enforce under Section 17(b)(2)(i) in municipal waters include:
(1) P.D. No. 704; (2) P.D. No. 1015 which, inter alia,
authorizes the establishment of a "closed season" in any
Philippine water if necessary for conservation or ecological
purposes; (3) P.D. No. 1219 which provides for the
exploration, exploitation, utilization and conservation of coral
resources; (4) R.A. No. 5474, as amended by B.P. Blg. 58,
which makes it unlawful for any person, association or
corporation to catch or cause to be caught, sell, offer to sell,
purchase, or have in possession any of the fish specie
called gobiidae or "ipon" during closed season; and (5) R.A.
No. 6451 which prohibits and punishes electrofishing, as well
as various issuances of the BFAR.
To those specifically devolved insofar as the control and
regulation of fishing in municipal waters and the protection of
its marine environment are concerned, must be added the
following:
1. Issuance of permits to construct fish cages within municipal
waters;
2. Issuance of permits to gather aquarium fishes within
municipal waters;
3. Issuance of permits to gather kapis shells within municipal
waters;
4. Issuance of permits to gather/culture shelled mollusks
within municipal waters;
5. Issuance of licenses to establish seaweed farms within
municipal waters;
6. Issuance of licenses to establish culture pearls within
municipal waters;
7. Issuance of auxiliary invoice to transport fish and fishery
products; and
8. Establishment of "closed season" in municipal waters.
These functions are covered in the Memorandum of
Agreement of 5 April 1994 between the Department of
Agriculture and the Department of Interior and Local
Government.
In light then of the principles of decentralization and
devolution enshrined in the LGC and the powers granted
therein to local government units under Section 16 (the
General Welfare Clause), and under Sections 149, 447(a) (1)
(vi), 458 (a) (1) (vi) and 468 (a) (1) (vi), which unquestionably
involve the exercise of police power, the validity of the
questioned Ordinances cannot be doubted.
Parenthetically, we wish to add that these Ordinances find full
support under R.A. No. 7611, otherwise known as the
Strategic Environmental Plan (SEP) for Palawan Act,
approved on 19 June 1992. This statute adopts a
"comprehensive framework for the sustainable development of
Palawan compatible with protecting and enhancing the natural
resources and endangered environment of the province,"
which "shall serve to guide the local government of Palawan
and the government agencies concerned in the formulation and
implementation of plans, programs and projects affecting said
province."32
At this time then, it would be appropriate to determine the
relation between the assailed Ordinances and the aforesaid
powers of the Sangguniang Panlungsod of the City of Puerto
Princesa and the Sangguniang Panlalawigan of the Province of
Palawan to protect the environment. To begin, we ascertain
the purpose of the Ordinances as set forth in the statement of
purposes or declaration of policies quoted earlier.
It is clear to the Court that both Ordinances have two principal
objectives or purposes: (1) to establish a "closed season" for
33
the species of fish or aquatic animals covered therein for a
period of five years; and (2) to protect the coral in the marine
Page
waters of the City of Puerto Princesa and the Province of
Palawan from further destruction due to illegal fishing
activities.
The accomplishment of the first objective is well within the
devolved power to enforce fishery laws in municipal waters,
such as P.D. No. 1015, which allows the establishment of
"closed seasons." The devolution of such power has been
expressly confirmed in the Memorandum of Agreement of 5
April 1994 between the Department of Agriculture and the
Department of Interior and Local Government.
The realization of the second objective clearly falls within
both the general welfare clause of the LGC and the express
mandate thereunder to cities and provinces to protect the
environment and impose appropriate penalties for acts which
endanger the environment.33
The destruction of coral reefs results in serious, if not
irreparable, ecological imbalance, for coral reefs are among
nature's life-support systems.34 They collect, retain and recycle
nutrients for adjacent nearshore areas such as mangroves,
seagrass beds, and reef flats; provide food for marine plants
and animals; and serve as a protective shelter for aquatic
organisms.35 It is said that "[e]cologically, the reefs are to the
oceans what forests are to continents: they are shelter and
breeding grounds for fish and plant species that will disappear
without them."36
The prohibition against catching live fish stems, in part, from
the modern phenomenon of live-fish trade which entails the
catching of so-called exotic species of tropical fish, not only
for aquarium use in the West, but also for "the market for live
banquet fish [which] is virtually insatiable in ever more
affluent Asia.37 These exotic species are coral-dwellers, and
fishermen catch them by "diving in shallow water with
corraline habitats and squirting sodium cyanide poison at
passing fish directly or onto coral crevices; once affected the
fish are immobilized [merely stunned] and then scooped by
hand."38 The diver then surfaces and dumps his catch into a
submerged net attached to the skiff. Twenty minutes later, the
fish can swim normally. Back on shore, they are placed in
holding pens, and within a few weeks, they expel the cyanide
from their system and are ready to be hauled. They are then
placed in saltwater tanks or packaged in plastic bags filled
with seawater for shipment by air freight to major markets for
live food fish.39 While the fish are meant to survive, the
opposite holds true for their former home as "[a]fter the
fisherman squirts the cyanide, the first thing to perish is the
reef algae, on which fish feed. Days later, the living coral
starts to expire. Soon the reef loses its function as habitat for
the fish, which eat both the algae and invertebrates that cling
to the coral. The reef becomes an underwater graveyard, its
skeletal remains brittle, bleached of all color and vulnerable to
erosion from the pounding of the waves." 40 It has been found
that cyanide fishing kills most hard and soft corals within three
months of repeated application.41
The nexus then between the activities barred by Ordinance No.
15-92 of the City of Puerto Princesa and the prohibited acts
provided in Ordinance No. 2, Series of 1993 of the Province of
Palawan, on one hand, and the use of sodium cyanide, on the
other, is painfully obvious. In sum, the public purpose and
reasonableness of the Ordinances may not then be
controverted.
As to Office Order No. 23, Series of 1993, issued by Acting
City Mayor Amado L. Lucero of the City of Puerto Princesa,
we find nothing therein violative of any constitutional or
statutory provision. The Order refers to the implementation of
the challenged ordinance and is not the Mayor's Permit.
The dissenting opinion of Mr. Justice Josue N. Bellosillo relies
upon the lack of authority on the part of the Sangguniang
Panglungsod of Puerto Princesa to enact Ordinance No. 15,
Series of 1992, on the theory that the subject thereof is within
the jurisdiction and responsibility of the Bureau of Fisheries
and Aquatic Resources (BFAR) under P.D. No. 704, otherwise
known as the Fisheries Decree of 1975; and that, in any event,
the Ordinance is unenforceable for lack of approval by the
Secretary of the Department of Natural Resources (DNR),
likewise in accordance with P.D. No. 704.
The majority is unable to accommodate this view. The
jurisdiction and responsibility of the BFAR under P.D. No.
704, over the management, conservation, development,
protection, utilization and disposition of all fishery and aquatic
resources of the country is not all-encompassing. First, Section
4 thereof excludes from such jurisdiction and responsibility
municipal waters, which shall be under the municipal or city
government concerned, except insofar as fishpens and
seaweed culture in municipal centers are concerned. This
section provides, however, that all municipal or city
ordinances and resolutions affecting fishing and fisheries and
any disposition thereunder shall be submitted to the Secretary
of the Department of Natural Resources for appropriate action
and shall have full force and effect only upon his approval.42
Second, it must at once be pointed out that the BFAR is no
longer under the Department of Natural Resources (now
Department of Environment and Natural Resources).
Executive Order No. 967 of 30 June 1984 transferred the
BFAR from the control and supervision of the Minister
(formerly Secretary) Of Natural Resources to the Ministry of
Agriculture and Food (MAF) and converted it into a mere staff
agency thereof, integrating its functions with the regional
offices of the MAF.
In Executive Order No. 116 of 30 January 1987, which
reorganized the MAF, the BFAR was retained as an attached
agency of the MAF. And under the Administrative Code of
1987,43 the BFAR is placed under the Title concerning the
Department of Agriculture.44
Therefore, it is incorrect to say that the challenged Ordinance
of the City of Puerto Princesa is invalid or unenforceable
because it was not approved by the Secretary of the DENR. If
34
at all, the approval that should be sought would be that of the
Secretary of the Department of Agriculture. However, the
Page
requirement of approval by the Secretary of the Department of
Agriculture (not DENR) of municipal ordinances affecting
fishing and fisheries in municipal waters has been dispensed
with in view of the following reasons:
(1) Section 534 (Repealing Clause) of the LGC expressly
repeals or amends Sections 16 and 29 of P.D. No.
70445 insofar as they are inconsistent with the provisions of the
LGC.
(2) As discussed earlier, under the general welfare clause of
the LGC, local government units have the power, inter alia, to
enact ordinances to enhance the right of the people to a
balanced ecology. It likewise specifically vests municipalities
with the power to grant fishery privileges in municipal waters,
and impose rentals, fees or charges therefor; to penalize, by
appropriate ordinances, the use of explosives, noxious or
poisonous substances, electricity, muro-ami, and other
deleterious methods of fishing; and to prosecute any violation
of the provisions of applicable fishery laws. 46 Finally, it
imposes upon the sangguniang bayan, the sangguniang
panlungsod, and the sangguniang panlalawigan the duty to
enact ordinances to "[p]rotect the environment and impose
appropriate penalties for acts which endanger the environment
such as dynamite fishing and other forms of destructive
fishing . . . and such other activities which result in pollution,
acceleration of eutrophication of rivers and lakes or of
ecological imbalance."47
In closing, we commend the Sangguniang Panlungsod of the
City of Puerto Princesa and Sangguniang Panlalawigan of the
Province of Palawan for exercising the requisite political will
to enact urgently needed legislation to protect and enhance the
marine environment, thereby sharing in the herculean task of
arresting the tide of ecological destruction. We hope that other
local government units shall now be roused from their lethargy
and adopt a more vigilant stand in the battle against the
decimation of our legacy to future generations. At this time,
the repercussions of any further delay in their response may
prove disastrous, if not, irreversible.
WHEREFORE, the instant petition is DISMISSED for lack of
merit and the temporary restraining order issued on 11
November 1993 is LIFTED.
No pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Padilla, Romero, Melo, Vitug, Francisco
Panganiban and Torres, Jr., JJ., concur.
Regalado, J., is on leave.
Separate Opinions
MENDOZA, J., concurring:
I fully concur in the opinion of the Court written by Justice
Davide. I write separately to emphasize two points which I
believe are important. The first is the need to uphold the
presumption of validity of the ordinances in this case in view
of the total absence of evidence to undermine their factual
basis. The second is the need not to allow a shortcircuiting of
the normal process of adjudication on the mere plea that unless
we take cognizance of petitions like this, by-passing the trial
courts, alleged violations of constitutional rights will be left
unprotected, when the matter can very well be looked into by
trial courts and in fact should be brought there.
The ordinances in question in this case are conservation
measures which the local governments of Palawan have
adopted in view of the widespread destruction caused by
cyanide fishing of corals within their territorial waters. At the
very least, these ordinances must be presumed valid in the
absence of evidence to show that the necessary factual
foundation for their enactment does not exist. Their
invalidation at this point can result in the untimely exoneration
of otherwise guilty parties on the basis of doubtful
constitutional claims.
Ordinance No. 2-93, which the Sangguniang Panlalawigan of
Palawan adopted in 1993, prohibits, for a period of five years,
the "catching, gathering, possessing, buying, selling and
shipment" of five fish and lobsters. As originally enacted, the
prohibition applied to eight species of fish and lobsters caught
in the waters of Palawan, namely, "1. Family: Scaridae
(Mameng), 2. Epinephelus Fasciatus (Suno), 3. Cromileptes
altivelis (Panther or Señorita), lobster (below 200 grams and
spawning), 4. Tridacna Gigas (Giant Clams or Taklobo and
other species), 5. Pinctada Margaritifera (Mother Pearl
Oysters), 6. Penaeus Monodon (Tiger Prawn — breeder size
or mother), 7. Epinephelus Suillus (Loba or Green Grouper)
and 8. Family: Balistidae (Tropical Aquarium
Fishes)." 1 Later, however, the ordinance was amended to
limit the ban to three species only, namely: mameng
(scaridae), panther or señorita (cromileptes altivelis) and
ornamental or aquarium fishes (balistidae). Violation of the
ordinance is punishable by a fine of P5,000.00 and/or
imprisonment of not less than 6 nor more than 12 months and
confiscation of the paraphernalia and equipment used in the
commission of the offense. 2
Ordinance No. 2-93 was adopted by the Sangguniang
Panlalawigan on the basis of a 1992 study submitted by the
Department of Agriculture, 3 showing that, as a result of the
use of cyanide and other noxious substances for fishing, only
5% of the coral reefs in the Province of Palawan remained in
excellent condition as fish sanctuaries and habitats, while 75%
was heavily damaged.
35
The rampant use of cyanide has been encouraged by the
Page
lucrative trade in live fishes which are shipped not only to
Manila but also abroad, principally to Hongkong, Taiwan and
Malaysia. The fishes are sold to gourmet restaurants because
of the great demand for exotic food, to aquariums and to pet
shops. In its issue of July 19, 1993. Time Magazine 4 reported
that the illicit trade in live animals is the third biggest
contraband business in the world, after drugs and arms, and
identified the Philippines as a major source of tropical fishes
for the global traffic in live fishes.
The use of cyanide enables fishermen to catch fish alive and in
commercial quantity in a way not possible with the use of such
traditional methods as hook and line, fish traps, baklad and the
like, which allows only limited catch and often results in
injuries to fishes and the loss of their scales, thereby reducing
their survival for transportation abroad. 5 Cyanide does not
kill fish but only stuns them. The stunned creatures are then
scooped up and placed in containers ready for shipment across
borders, national and transnational. What cyanide does,
however, is poison the fragile reefs and cause them to die and
cease as fish habitats. 6
Concern over the use of cyanide in fishing and its ill effect on
the marine environment also prompted the Sangguniang
Panlungsod of Puerto Princesa to pass Ordinance No. 15-92,
which makes it unlawful for any person or business enterprise
or company "to ship out from Puerto Princesa City to any
point of destinations either via aircraft or seacraft of any live
fish and lobster except SEA BASS, CATFISH, MUDFISH
and MILKFISH FRIES." 7 The ban is for five years, from
January 1, 1993 to January 1, 1998. The penalty for violation
of the ordinance is a fine of not more than P5,000.00 or
imprisonment of not more than 12 months. 8
To enforce the ordinance, the mayor of Puerto Princesa
ordered the inspection of cargoes of live fish and lobsters
leaving the city by air or sea. Inspectors are to ascertain if the
shipper has a permit issued by the office of the city mayor.
Any cargo of live fish and lobster without a permit from the
mayor's office will be "held for proper disposition." 9
The ordinances in question are police power measures,
enacted by the Province of Palawan and the City of Puerto
Princesa, pursuant to the Local Government Code of 1991
which makes it in fact their duty to enact measures to "protect
the environment and impose appropriate penalties for acts
which endanger the environment, such as dynamite fishing
and other forms of destructive fishing. . . ." 10 There is no basis
for the claim in the dissenting opinion that the subject of these
ordinances lies within the competence of the national
government. For the matter concerns a local problem, namely,
the destruction of aquatic resources in the Province of
Palawan. For this reason the Solicitor General asked for leave
to withdraw from this case. On the other hand, the Department
of Agriculture submitted its report on the extent of the
devastation of coral reefs caused by illegal fishing to the
Sangguniang Panlalawigan of Palawan and thereby left the
solution of the problem to be worked out by the local
authorities. It would therefore set back the policy of
decentralization were this Court to sustain such a claim.
Indeed, petitioners' challenge to the validity of the ordinances
does not rest on the claim that the ordinances are beyond the
power of local governments to enact but on the ground that
they deprive petitioners of their means of livelihood and
occupation and for that reason violate the Constitution of the
Philippines. For support, petitioners invoke the following
constitutional provisions:
Art. XII, §2 . . . . .
The State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea and exclusive economic
zone, and reserve its use and enjoyment exclusively to Filipino
citizens.
The Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens, as well as cooperative
fish farming, with priority to subsistence fishermen and
fishworkers in rivers, lakes, bays and lagoons.
Art. XIII, §1: The Congress shall give highest priority to the
enactment of measures that protect and enhance the right of all
the people to human dignity, reduce social, economic, and
political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the common
good.
Id., §7: The State shall protect the rights of subsistence
fishermen, especially of local communities, to the preferential
use of the communal marine and fishing resources, both inland
and offshore. It shall provide support to such fishermen
through appropriate technology and research, adequate
financial, production, and marketing assistance, and other
services. The State shall also protect, develop, and conserve
such resources. The protection shall extend to offshore fishing
grounds of subsistence fishermen against foreign intrusion.
Fishworkers shall receive a just share from their labor in the
utilization of marine and fishing resources.
I cannot see how these provisions can, in any way, lend
support to petitioners' contention that the ordinances violate
the Constitution. These provisions refer to the duty of the State
to protect the nation's marine resources for the exclusive use
and enjoyment of Filipino citizens, to the preferential right of
subsistence fishermen in the use of such communal marine
resources, and to their right to be protected, even in offshore
fishing grounds, against foreign intrusion. There is no question
here of Filipino preference over aliens in the use of marine
resources. What is in issue is the protection of marine
resources in the Province of Palawan. It was precisely to
implement Art. XII, §2 that the ordinances in question were
enacted. For, without these marine resources, it would be idle
to talk of the rights of subsistence fishermen to be preferred in
the use of these resources.
36
It has been held that "as underlying questions of fact may
condition the constitutionality of legislation of this character,
Page
the presumption of constitutionality must prevail in the
absence of some factual foundation of record for overthrowing
the statute."11 No evidence has been presented by petitioners to
overthrow the factual basis of the ordinances — that, as a
result of the use of cyanide and other noxious substances for
fishing, only 5% of the coral reefs in Palawan was in excellent
condition, that 75% had been heavily destroyed, and that
because of the thriving market for live fish and lobster here
and abroad there was rampant illicit trade in live fish.
Nor has it been shown by petitioners that the local legislation
here involved is arbitrary or unreasonable. It has been held: "If
the laws passed are seen to have a reasonable relation to a
proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied,
and judicial determination to that effect renders a
court functus officio. . . . With the wisdom of the policy
adopted, with the adequacy or practicability of the law enacted
to forward it, the courts are both incompetent and
unauthorized to deal. . . ."12
It is contended that neither Provincial Ordinance No. 2-93 nor
City Ordinance No. 15-92 prohibits cyanide fishing and
therefore the prohibition against catching certain species of
fish and their transportation is "excessive and irrational." It is
further argued that the ban is unreasonable because it is not
limited to cyanide fishing but includes even legitimate fishing.
The ban on the use of cyanide and other noxious substances is
already provided for in other legislation. P.D. No. 534, §2
punishes fishing by means of "explosives, obnoxious or
poisonous substances or by the use of electricity."
Consequently, the ordinances in question can be seen as a
necessary corollary of the prohibition against illegal fishing
contained in this Decree. By prohibiting the catching of certain
fishes and lobsters, Ordinance No. 2-93 in effect discourages
cyanide fishing because, as already stated, cyanide is preferred
in catching fishes because it does not kill but only stuns them
and thus preserves them for export to the world market.
On the other hand, the claim that the ordinance sweeps
overbroadly by "absolutely prohibit[ing] the catching,
gathering, buying and shipment of live fishes and marine coral
resources by any and all means including those lawfully
executed or done in the pursuit of legitimate occupation"
misconceives the principal purpose of the ordinance, which is
not so much to prohibit the use of cyanide for fishing as to
rebuild corals because of their destruction by cyanide fishing.
This is clear from the "whereas" clauses of Resolution No. 33,
accompanying Ordinance No. 2-93:
WHEREAS, scientific and factual researches and studies
disclose that only five (5) percent of the corals of our province
remain to be in excellent condition as habitat of marine coral
dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the destruction and
devastation of the corals of our province were principally due
to illegal fishing activities like dynamite fishing, sodium
cyanide fishing, use of other obnoxious substances and other
related activities;
WHEREAS, there is an imperative and urgent need to protect
and preserve the existence of the remaining excellent corals
and allow the devastated ones to reinvigorate and regenerate
themselves into vitality within the span of five (5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of R.A. 7160
otherwise known as the Local Government Code of 1991
empowers the Sangguniang Panlalawigan to protect the
environment and impose appropriate penalties [for] acts which
endanger the environment such as dynamite fishing and other
forms of destructive fishing, among others;
The principal aim of the ordinance is thus the preservation and
rehabilitation of the corals. Only indirectly is it also concerned
with prohibiting the use of cyanide. That this is the aim of the
ordinance can also be inferred from the fact that the ban
imposed by it on the catching and gathering of fishes is for a
limited period (5 years) calculated to be the time needed for
the growth and regeneration of the corals. Were the purpose of
the ordinance the prohibition of the use of cyanide for fishing,
the ban would not be for a limited period only but for all time.
I am not much moved by the plea that the ordinances deprive
small fishermen of their means of livelihood and occupation.
The ban imposed by Ordinance No. 2-93, as amended, covers
only three species, i.e., mameng (scaridae), panther or señorita
(cromilepres altivelis) and ornamental aquarium fishes
(balistiedae), which are prized in the black market. With
respect to other species, it is open season for legitimate
fishermen. On the other hand, the ban imposed by Ordinance
No. 15-92 allows the transportation and shipment of sea bass,
catfish, mudfish and milkfish fries. The ban imposed by the
two ordinances is limited to five years. It is thus limited both
as to scope and as to period of effectivity. There is, on the
other hand, the imperative necessity for measures to prevent
the extinction of certain species of fish.
Indeed, the burden of showing that there is no reasonable
relation between the end and the means adopted in this case is
not on the local governments but on petitioners because of the
presumption that a regulatory statute is valid in the absence of
factual evidence to the contrary. As held in United States
v. Salaveria.13 "The presumption is all in favor of validity. . .
The councilors must, in the very nature of things, be familiar
with the necessities of their particular municipality and with
all the facts and circumstances which surround the subject, and
necessitate action. The local legislative body, by enacting the
ordinance, has in effect given notice that the regulations are
essential to the well being of the people. . . . The Judiciary
should not lightly set aside legislative action when there is not
a clear invasion of personal or property rights under the guise
of police regulation."
Finally, petitioners question Office Order No. 23, s. of 1993,
of the city mayor of Puerto Princesa, for being allegedly
vague. This order prohibits the transportation of fish outside
37
the city without permit from the mayor's office. Petitioners
contend that the order does not state under what condition a
Page
permit may be granted and, consequently, leaves it to the
absolute discretion of the mayor when to grant and when to
deny a permit. The questioned paragraph of the order states:
The purpose of the inspection is to ascertain whether the
shipper possessed the required Mayor's Permit issued by this
Office and the shipment is covered by invoice or clearance
issued by the local office of the Bureau of Fisheries and
Aquatic Resources and as to compliance with all other existing
rules and regulations on the matter.
This contention is untenable. As the office order is intended to
implement City Ordinance No. 15-92, resort must be made to
the ordinance in order to determine the scope of such office
order. As already noted, the ordinance prohibits the shipment
out of Puerto Princesa of live fish and lobsters, with the
exception of catfish, mudfish and milkfish fries. Consequently,
a permit may be denied if it is for the transportation of fishes
which are covered by the ban, but not for those not covered by
it. This is the common sense meaning of the office order in
question. Criminal laws must be precisely drawn, but, as
Justice Holmes once said, "We agree to all the generalities
about not supplying criminal laws with what they omit, but
there is no canon against using common sense in construing
laws as saying what they obviously mean."14
One final point. This case was brought to this Court on the
bare bones of the ordinances, on the mere claim of petitioner
Alfredo Tano and his 83 copetitioners that they are subsistence
fishermen. The constitutional protection refers to small
fishermen who depend on the sea for their existence. Ten of
the petitioners, led by Alfredo Tano, are accused in the
Municipal Circuit Trial Court of possession of the species
covered by Provincial Ordinance No. 2-93, while two, Roberto
Lim and Virginia Lim, are charged with violation of the two
ordinances in the City Prosecutor's Office. There is no telling
from the records of this case whether petitioners are
subsistence fishermen or simply impecunious individuals
selling their catch to the big businessmen. The other
petitioners are admittedly fish traders, members of an
association of airline shippers, to whom the constitutional
provisions obviously do not apply.
The judicial invalidation of the ordinances in this case could
undermine the on-going trial of some of petitioners. Instead of
leaving the determination of the validity of the ordinances to
the trial court, where some of petitioners are facing charges,
this Court will be shortcircuiting the criminal process by
prematurely passing upon the constitutional questions and
indirectly on the criminal liability of some of the petitioners.
This is a task which should await the development of evidence
of record.
Indeed because of the unsatisfactory abstractness of the
record, this case should not have been brought here. The mere
fact that some of petitioners are facing prosecution for
violation of the ordinances is no reason for entertaining their
suit. Our jurisdiction is limited to cases and controversies.
Who are petitioners? What is the impact of the ordinance on
their economic situation? Are the factual bases of the two
ordinances supported by evidence? These questions must be
raised in the criminal trial or in a suit brought in the trial court
so that facts necessary to adjudicate the constitutional
questions can be presented. Nothing can take the place of the
flesh and blood of litigation to assess the actual operation of a
statute and thus ground the judicial power more firmly.
Petitioners justify the filing of the present action in this Court
on the ground that constitutional questions must be raised at
the earliest time. That is true, but it does not mean that the
questions should be presented to the Supreme Court first hand.
Moreover, the rule is not absolute. Constitutional questions
like those invoked by petitioners can be raised anytime, even
in a motion for reconsideration, if their resolution is necessary
to the decision of an actual case or controversy, as our recent
resolution15 of the constitutionality of R.A. No. 7659,
reimposing the death penalty, amply demonstrates.
Romero, Melo, Puno and Francisco, JJ., concur.
BELLOSILLO, J., dissenting:
It is settled rule that where the provisions of the law are clear
and unambiguous there is no room for interpretation. The duty
of the court is only to apply the law. The exception to such
rule cannot be justified on the sole basis of good motives or
noble objectives. For it is also basic that the end does not
justify the means.
The petition raises significant constitutional questions. While
petitioners apparently instituted the action to enjoin their
criminal prosecution, the issue boils down to whether the
subject ordinances of Palawan and Puerto Princesa are valid
and enforceable as to authorize the criminal prosecution of
those charged with violation thereof.
Notwithstanding the procedural limitations strictly applied in
the majority opinion to render the petition dismissible on
grounds of prematurity and lack of real interest in the
controversy, the case clearly falls under the exceptions
allowed by law. The petition, I submit, can be properly treated
as a special civil action for certiorari and prohibition under
Rule 65 of the Rules of Court to correct errors of jurisdiction
committed by the lower court arising from the implementation
of a void ordinance. Even if the purpose of the petition is for
declaratory relief, if the petition has far-reaching implications
and raises questions that should be resolved as they involve
national interest, it may be treated as a special civil action
under Rule 65. 1 The mere absence of a prior motion to quash
the Information in the trial court should not prevent the
accused, petitioners herein, from seeking to render null and
void the criminal proceedings below.
In criminal cases, when the constitutionality or validity of a
law or ordinance is essentially involved, the same may be
raised at any stage of the proceedings. It can also be
38
considered by the appellate court at any time if it involves the
jurisdiction of the lower Court. 2 Further, under Sec. 8, Rule
Page
117, of the Rules on Criminal Procedure, the failure of the
accused to assert any ground of a motion to quash before he
pleads to the Complaint or Information either because he did
not file a motion to quash or failed to allege the same in the
motion shall be deemed a waiver of the grounds of a motion to
quash, except the grounds of no offense charged, lack of
jurisdiction over the offense charged, extinction of the offense
or penalty, and jeopardy.
Petitioners are proper parties to set aside the proceedings in
the trial court. A proper party is one who has sustained or is in
immediate danger of sustaining an injury as a result of the act
complained of. Petitioners have been criminally charged and
arrested for alleged violation of the ordinances in question.
Consequently, unless the trial court is enjoined from
continuing with the proceedings, petitioners are in danger of
being convicted and punished under ordinances which they
allege to be invalid and ineffective. In fact this Court initially
recognized the real interest of petitioners in instituting the
action when it issued a restraining order directing Judge Angel
R. Miclat to cease and desist until further orders from
proceeding with the arraignment and pre-trial of People
v. Alfredo Tano, et al., Crim. Case No. 11223, for violation of
Resolution No. 2-93 of the Sangguniang Panlalawigan of
Palawan, and Ordinance No. 15-92 of the Sangguniang
Panlungsod of Puerto Princesa City.
The question to be resolved is whether Resolution No. 2-93,
Office Order No. 23 and Ordinance No. 15-92 are
constitutional, valid and enforceable. By considering the
purpose and objective of the ordinances as laudable, the
majority adopts the affirmative view in consonance with the
general welfare clause and principle of devolution well-rooted
in the Local Government Code of 1991.
While I agree with the majority that the local leaders of
Palawan and Puerto Princesa City be commended for their
efforts to uplift and protect the environment and natural
resources within their areas, the general welfare clause is not
the sole criterion to determine the validity or constitutionality
of the ordinances. In Magtajas v. Pryce Properties
Corporation, 3 we reiterated that the well-established tests of
a valid ordinance are: (a) It must not contravene the
Constitution or any statute; (b) It must not be unfair or
oppressive; (c) It must not be partial or discriminatory; (d) It
must not prohibit but may regulate trade; (e) It must be
general and consistent with public policy; and, (f) It must not
be unreasonable.
As admitted by the majority, among our existing statutes on
fishing and fishery or aquatic resources are P.D. Nos. 704,
1015 and 1219. P.D. No. 704 is titled "Revising and
Consolidating All Laws and Decrees Affecting Fishing and
Fisheries." With the enactment of the Local Government Code
of 1991, only Secs. 16 and 29 of P.D. No. 704 were expressly
repealed. All the rest of the provisions of P.D. No. 704 remain
valid and effective, Sec. 4 of which is enlightening —
Sec. 4. Jurisdiction of the Bureau (of Fisheries and Aquatic
Resources). — The Bureau shall have jurisdiction and
responsibility in the management, conservation, development,
protection, utilization and disposition of all fishery and aquatic
resources of the country except municipal waters which shall
be under the municipal or city government
concerned: Provided, That fishpens and seaweed culture in
municipal centers shall be under the jurisdiction of the
Bureau: Provided, further, That all municipal or city
ordinances and resolutions affecting fishing and fisheries and
any disposition thereunder shall be submitted to the Secretary
for appropriate action and shall have full force and effect only
upon his approval. The Bureau shall also have authority to
regulate and supervise the production, capture and gathering
of fish and fishery/aquatic products.
There is no doubt that under P.D. No. 704 fishing, fishery and
aquatic resources in municipal waters are under the
jurisdiction of the municipal or city government concerned.
However, the same decree imposes a mandatory requirement
directing municipal or city governments to submit ordinances
enacted pertinent to fishing and fishery resources to the
Secretary of Agriculture who now has control and supervision
over the Bureau of Fisheries and Aquatic Resources (BFAR).
The ordinances will attain full force and effect only upon the
approval of the Secretary of Agriculture.
Ordinance 15-92 of Puerto Princesa City, admittedly, was not
submitted to the Secretary of Agriculture through the BFAR
for approval. Such failure of compliance with the law
prevented it from becoming valid and effective. Consequently,
Office Order No. 23 of the Mayor of Puerto Princesa City
which seeks to implement and enforce Ordinance No. 15-92 is
also ineffective as there is nothing to implement.
To say that Sec. 4 of P.D. No. 704 was impliedly repealed by
the Local Government Code is gratuitous. For, if it was the
intention of the legislature to dispense with the requirement of
prior approval by the Secretary of Agriculture of ordinances
pertinent to fishery resources, it would. have expressly
repealed Sec. 4 when, in fact, it did so with Secs. 16 and 29 of
P.D. No. 704. Cases abound holding that a repeal by
implication is not presumed or favored considering that the
legislature is presumed to be aware of existing laws;
ordinarily, if it intends to revoke a statute it would manifest
such intention in express terms. 4 Before such a repeal is
deemed to exist it should be shown that the statutes or
statutory provisions deal with the same subject matter and that
the latter be inconsistent with the former. There must be a
showing of repugnancy clear and convincing in character. The
language used in the latter statute must be such as to render it
irreconcilable with what has been formerly enacted. An
inconsistency that falls short of that standard does not suffice.
In fact, there is no inconsistency between the Local
Government Code and P.D. No. 704 as amended. While the
Local Government Code vests power upon the local
government to enact ordinances for the general welfare of its
inhabitants, such power is subject to certain limitations
imposed by the Code itself and by other statutes. When the
legislature failed to repeal Sec. 4 of P.D. No. 704 it accepted
39
and recognized a limitation on the power of the local
government to enact ordinances relative to matters affecting
Page
fishery and aquatic resources. A reading of particular
provisions of the Local Government Code itself will reveal
that devolution on the powers of the local government
pertaining to the protection of environment is limited and not
all-encompassing, as will be discussed in the succeeding
paragraphs.
Further, while the Local Government Code is a general law on
the powers, responsibilities and composition of different local
government units, P.D. No. 704 is a special law dealing with
the protection and conservation of fishing and aquatic
resources including those in the municipal waters. Hence, the
special law should prevail over the general law.
There is also P.D. No. 1015 which vests upon the Secretary of
Agriculture the authority to establish closed seasons. Another
existing law on fisheries which has not been repealed by the
Local Government Code is P.D. No. 1219, which provides for
the exploration, exploitation, utilization and conservation of
coral resources. Section 4 thereof provides that the decree
shall be implemented by the Secretary of Environment and
Natural Resources who shall have jurisdiction and
responsibility in the exploration, exploitation, utilization and
conservation of coral resources. Section 6 authorizes the
Secretary to issue special permit to any person or institution to
gather in limited quantities any coral for scientific or
educational purposes. Section 10 empowers the Secretary to
promulgate rules and regulations for the implementation of
this law.
It is true that police power can be exercised through the
general welfare clause. But, while police power is inherent in a
state, it is not so in municipal corporations or local
governments. In order that a local government may exercise
police power, there must be a legislative grant which
necessarily sets the limits for the exercise of the power. 5 In
this case, Congress has enacted the Local Government Code
which provides the standards as well as the limitations in the
exercise of the police power by the local government unit.
Section 2 of the Local Government Code provides for a
system of decentralization whereby local government units are
given more powers, authority, responsibilities and resources,
and the process shall proceed from the national government to
the local government units. However, under Sec 3, par. (i), of
the Local Government Code, the operative principles of
decentralization upon the environment and natural resources
are not absolute when it is provided therein that "local
government units shall share with the national government the
responsibility in the management and maintenance of
ecological balance within their territorial jurisdiction, subject
to the provisions of this Code and national policies." The
national policies mentioned here refer to existing policies
which the DENR and other government agencies concerned
with the environment may implement at any given moment.
The national policies are embodied in existing laws, rules and
regulations pertaining to environment and natural resources,
such as P.D. Nos. 704 and 1219 relating to fishery resources.
The above provision was crafted to make sure that local
government enactments do not supplant or negate national
government policies on environment. 6 This is precisely the
reason why the Local Government Code did not repeal Sec. 4
of P.D. NO. 704 requiring prior submission to and approval by
the Secretary of Agriculture of ordinances relative to fishery
and aquatic resources. Needless to stress, the approval of the
Secretary is necessary in order to ensure that these ordinances
are in accordance with the laws on fisheries and national
policies. Likewise, the jurisdiction of the Secretary of
Environment and Natural Resources over coral resources
under P.D. No. 1219 remains.
The core of the devolution adopted by the Local Government
Code is found in Sec. 17 thereof which reiterates the basic
services and facilities to be rendered by the local governments.
With respect to the protection and conservation of fisheries,
Sec. 17, par. 2 (i), specifically provides that the municipality
shall conduct "extension and on-site research services and
facilities related to agriculture and fishery activities which
include dispersal of livestock and poultry, fingerlings and
other seeding materials for aquaculture
. . . . and enforcement of fishery laws in municipal waters
including the conservation of mangroves . . . ." The power
devolved upon the municipality under the Local Government
Code is the enforcement of existing fishery laws of the State
and not the enactment thereof. While a local government unit
may adopt ordinances upon subjects covered by law or statute,
such ordinances should be in accordance with and not
repugnant to the law. 7 In view thereof, ordinances which may
be enacted by the municipality or city should be pursuant to
the provisions of P.D. Nos. 704, 1015 and 1219. Thus, under
the provisions of Secs. 447, par. 1 (vi), 458, par. 1 (vi) and
468, par. 1 (vi), the municipality, city and province
respectively may approve ordinances protecting the
environment by specifically penalizing only those acts which
endanger the environment such as dynamite fishing and other
forms of destructive fishing which are already prohibited
under P.D. Nos. 704 and 1219, and other laws on illegal
fishing. 8
The questioned ordinances may also be struck down for being
not only a prohibitory legislation but also an unauthorized
exercise of delegation of powers. An objective, however
worthy or desirable it may be, such as the protection and
conservation of our fisheries in this case, can be attained by a
measure that does not encompass too wide a field. The
purpose can be achieved by reasonable restrictions rather than
by absolute prohibition. Local governments are not possessed
with prohibitory powers but only regulatory powers under the
general welfare clause. 9 They cannot therefore exceed the
powers granted to them by the Code by altogether prohibiting
fishing and selling for five (5) years all live fishes through
Ordinance No. 15-92 and coral organisms through Ordinance
No. 2-93 involving even lawful methods of fishing.
These prohibitions are tantamount to the establishment of a
closed season for fish and aquatic resources which authority is
not among those powers vested by the Local Government
Code to the local government units. For the authority to
40
establish a closed season for fisheries is vested upon the
Secretary of Agriculture by virtue of P.D. Nos. 704 and 1015
Page
and in the Secretary of Environment and Natural resources
pursuant to P.D. No. 1219 in relation to coral resources. The
power of the local governments is confined and limited to
ensuring that these national fishery laws are implemented and
enforced within their territorial jurisdictions. Hence, any
memorandum of agreement which might have been executed
by the Department of Agriculture or Department of
Environment and Natural Resources granting additional
powers and functions to the local governments which are not
vested upon the latter by the Local Government Code because
such powers are covered by existing statutes, is an undue
delegation of power and, consequently, null and void.
The majority also cites R.A. No. 7611, otherwise known as the
Strategic Environmental Plan (SEP) for Palawan Act, as proof
of the power of the local governments of Palawan and Puerto
Princesa City to issue the assailed ordinances. Although the
objectives of R.A. No. 7611 and of the ordinances are one and
the same, i.e., the protection, conservation and development of
natural resources, the former does not grant additional powers
to the local governments pertaining to the environment. In
fact, the law adopts a comprehensive framework which shall
serve to direct and guide local governments and national
government agencies in the implementation of programs and
projects affecting Palawan. With the enactment of this Act, the
local governments are mandated to coordinate and align their
developmental plans, projects and budgets in accord with the
framework of the SEP. It can be said that this is another
limitation on the exercise of police power by the local
governments of Palawan and Puerto Princesa City because the
governance, implementation and policy direction of the SEP
shall be exercised by the Palawan Council for Sustainable
Development (PCSD) which is under the Office of the
President.
Finally, I find unreasonable Resolution No. 2-93 of Palawan
and Ordinance No. 15-92 of Puerto Princesa City. The
prohibitions set forth are not germane to the accomplishment
of their goals. Ordinance No. 15-92 is aimed to free effectively
the marine resources of Puerto Princesa from cyanide and
other obnoxious substances. But the means to achieve this
objective borders on the excessive and irrational, for the edict
would absolutely ban the shipment of live fishes and lobsters
out of the city for a period of five (5) years without prohibiting
cyanide fishing itself which is the professed goal of the
ordinance. The purpose of Resolution No. 2-93, on the other
hand, is to protect and preserve all marine coral-dwelling
organisms from devastation and destruction by illegal fishing
activities, e.g., dynamite fishing, sodium cyanide fishing, and
the use of other obnoxious substances. But in absolutely
prohibiting the catching, gathering, buying and shipment of
live fishes and marine coral resources by any means including
those lawfully executed or done in the pursuit of legitimate
occupation, the ordinance overstepped the reasonable limits
and boundaries of its raison d'etre. This I cannot help viewing
as plain arbitrariness masquerading as police power. For the
consequent deprivation of the main source of livelihood of the
people of Palawan can only be regarded as utter depravation of
this awesome power of the State.
For all the foregoing, I vote to grant the petition.
Kapunan and Hermosisima, Jr., JJ., concur.
Separate Opinions
MENDOZA, J., concurring:
I fully concur in the opinion of the Court written by Justice
Davide. I write separately to emphasize two points which I
believe are important. The first is the need to uphold the
presumption of validity of the ordinances in this case in view
of the total absence of evidence to undermine their factual
basis. The second is the need not to allow a shortcircuiting of
the normal process of adjudication on the mere plea that unless
we take cognizance of petitions like this, by-passing the trial
courts, alleged violations of constitutional rights will be left
unprotected, when the matter can very well be looked into by
trial courts and in fact should be brought there.
The ordinances in question in this case are conservation
measures which the local governments of Palawan have
adopted in view of the widespread destruction caused by
cyanide fishing of corals within their territorial waters. At the
very least, these ordinances must be presumed valid in the
absence of evidence to show that the necessary factual
foundation for their enactment does not exist. Their
invalidation at this point can result in the untimely exoneration
of otherwise guilty parties on the basis of doubtful
constitutional claims.
Ordinance No. 2-93, which the Sangguniang Panlalawigan of
Palawan adopted in 1993, prohibits, for a period of five years,
the "catching, gathering, possessing, buying, selling and
shipment" of five fish and lobsters. As originally enacted, the
prohibition applied to eight species of fish and lobsters caught
in the waters of Palawan, namely, "1. Family: Scaridae
(Mameng), 2. Epinephelus Fasciatus (Suno), 3. Cromileptes
altivelis (Panther or Señorita), lobster (below 200 grams and
spawning), 4. Tridacna Gigas (Giant Clams or Taklobo and
other species), 5. Pinctada Margaritifera (Mother Pearl
Oysters), 6. Penaeus Monodon (Tiger Prawn — breeder size
or mother), 7. Epinephelus Suillus (Loba or Green Grouper)
and 8. Family: Balistidae (Tropical Aquarium
Fishes)." 1 Later, however, the ordinance was amended to
limit the ban to three species only, namely: mameng
(scaridae), panther or señorita (cromileptes altivelis) and
ornamental or aquarium fishes (balistidae). Violation of the
ordinance is punishable by a fine of P5,000.00 and/or
imprisonment of not less than 6 nor more than 12 months and
confiscation of the paraphernalia and equipment used in the
commission of the offense. 2
Ordinance No. 2-93 was adopted by the Sangguniang
Panlalawigan on the basis of a 1992 study submitted by the
41
Department of Agriculture, 3 showing that, as a result of the
use of cyanide and other noxious substances for fishing, only
Page
5% of the coral reefs in the Province of Palawan remained in
excellent condition as fish sanctuaries and habitats, while 75%
was heavily damaged.
The rampant use of cyanide has been encouraged by the
lucrative trade in live fishes which are shipped not only to
Manila but also abroad, principally to Hongkong, Taiwan and
Malaysia. The fishes are sold to gourmet restaurants because
of the great demand for exotic food, to aquariums and to pet
shops. In its issue of July 19, 1993. Time Magazine 4 reported
that the illicit trade in live animals is the third biggest
contraband business in the world, after drugs and arms, and
identified the Philippines as a major source of tropical fishes
for the global traffic in live fishes.
The use of cyanide enables fishermen to catch fish alive and in
commercial quantity in a way not possible with the use of such
traditional methods as hook and line, fish traps, baklad and the
like, which allows only limited catch and often results in
injuries to fishes and the loss of their scales, thereby reducing
their survival for transportation abroad. 5 Cyanide does not
kill fish but only stuns them. The stunned creatures are then
scooped up and placed in containers ready for shipment across
borders, national and transnational. What cyanide does,
however, is poison the fragile reefs and cause them to die and
cease as fish habitats. 6
Concern over the use of cyanide in fishing and its ill effect on
the marine environment also prompted the Sangguniang
Panlungsod of Puerto Princesa to pass Ordinance No. 15-92,
which makes it unlawful for any person or business enterprise
or company "to ship out from Puerto Princesa City to any
point of destinations either via aircraft or seacraft of any live
fish and lobster except SEA BASS, CATFISH, MUDFISH
and MILKFISH FRIES." 7 The ban is for five years, from
January 1, 1993 to January 1, 1998. The penalty for violation
of the ordinance is a fine of not more than P5,000.00 or
imprisonment of not more than 12 months. 8
To enforce the ordinance, the mayor of Puerto Princesa
ordered the inspection of cargoes of live fish and lobsters
leaving the city by air or sea. Inspectors are to ascertain if the
shipper has a permit issued by the office of the city mayor.
Any cargo of live fish and lobster without a permit from the
mayor's office will be "held for proper disposition." 9
The ordinances in question are police power measures,
enacted by the Province of Palawan and the City of Puerto
Princesa, pursuant to the Local Government Code of 1991
which makes it in fact their duty to enact measures to "protect
the environment and impose appropriate penalties for acts
which endanger the environment, such as dynamite fishing
and other forms of destructive fishing. . . ." 10 There is no basis
for the claim in the dissenting opinion that the subject of these
ordinances lies within the competence of the national
government. For the matter concerns a local problem, namely,
the destruction of aquatic resources in the Province of
Palawan. For this reason the Solicitor General asked for leave
to withdraw from this case. On the other hand, the Department
of Agriculture submitted its report on the extent of the
devastation of coral reefs caused by illegal fishing to the
Sangguniang Panlalawigan of Palawan and thereby left the
solution of the problem to be worked out by the local
authorities. It would therefore set back the policy of
decentralization were this Court to sustain such a claim.
Indeed, petitioners' challenge to the validity of the ordinances
does not rest on the claim that the ordinances are beyond the
power of local governments to enact but on the ground that
they deprive petitioners of their means of livelihood and
occupation and for that reason violate the Constitution of the
Philippines. For support, petitioners invoke the following
constitutional provisions:
Art. XII, §2 . . . . .
The State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea and exclusive economic
zone, and reserve its use and enjoyment exclusively to Filipino
citizens.
The Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens, as well as cooperative
fish farming, with priority to subsistence fishermen and
fishworkers in rivers, lakes, bays and lagoons.
Art. XIII, §1: The Congress shall give highest priority to the
enactment of measures that protect and enhance the right of all
the people to human dignity, reduce social, economic, and
political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the common
good.
Id., §7: The State shall protect the rights of subsistence
fishermen, especially of local communities, to the preferential
use of the communal marine and fishing resources, both inland
and offshore. It shall provide support to such fishermen
through appropriate technology and research, adequate
financial, production, and marketing assistance, and other
services. The State shall also protect, develop, and conserve
such resources. The protection shall extend to offshore fishing
grounds of subsistence fishermen against foreign intrusion.
Fishworkers shall receive a just share from their labor in the
utilization of marine and fishing resources.
I cannot see how these provisions can, in any way, lend
support to petitioners' contention that the ordinances violate
the Constitution. These provisions refer to the duty of the State
to protect the nation's marine resources for the exclusive use
and enjoyment of Filipino citizens, to the preferential right of
subsistence fishermen in the use of such communal marine
resources, and to their right to be protected, even in offshore
fishing grounds, against foreign intrusion. There is no question
here of Filipino preference over aliens in the use of marine
resources. What is in issue is the protection of marine
resources in the Province of Palawan. It was precisely to
42
implement Art. XII, §2 that the ordinances in question were
enacted. For, without these marine resources, it would be idle
Page
to talk of the rights of subsistence fishermen to be preferred in
the use of these resources.
It has been held that "as underlying questions of fact may
condition the constitutionality of legislation of this character,
the presumption of constitutionality must prevail in the
absence of some factual foundation of record for overthrowing
the statute."11 No evidence has been presented by petitioners to
overthrow the factual basis of the ordinances — that, as a
result of the use of cyanide and other noxious substances for
fishing, only 5% of the coral reefs in Palawan was in excellent
condition, that 75% had been heavily destroyed, and that
because of the thriving market for live fish and lobster here
and abroad there was rampant illicit trade in live fish.
Nor has it been shown by petitioners that the local legislation
here involved is arbitrary or unreasonable. It has been held: "If
the laws passed are seen to have a reasonable relation to a
proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied,
and judicial determination to that effect renders a
court functus officio. . . . With the wisdom of the policy
adopted, with the adequacy or practicability of the law enacted
to forward it, the courts are both incompetent and
unauthorized to deal. . . ."12
It is contended that neither Provincial Ordinance No. 2-93 nor
City Ordinance No. 15-92 prohibits cyanide fishing and
therefore the prohibition against catching certain species of
fish and their transportation is "excessive and irrational." It is
further argued that the ban is unreasonable because it is not
limited to cyanide fishing but includes even legitimate fishing.
The ban on the use of cyanide and other noxious substances is
already provided for in other legislation. P.D. No. 534, §2
punishes fishing by means of "explosives, obnoxious or
poisonous substances or by the use of electricity."
Consequently, the ordinances in question can be seen as a
necessary corollary of the prohibition against illegal fishing
contained in this Decree. By prohibiting the catching of certain
fishes and lobsters, Ordinance No. 2-93 in effect discourages
cyanide fishing because, as already stated, cyanide is preferred
in catching fishes because it does not kill but only stuns them
and thus preserves them for export to the world market.
On the other hand, the claim that the ordinance sweeps
overbroadly by "absolutely prohibit[ing] the catching,
gathering, buying and shipment of live fishes and marine coral
resources by any and all means including those lawfully
executed or done in the pursuit of legitimate occupation"
misconceives the principal purpose of the ordinance, which is
not so much to prohibit the use of cyanide for fishing as to
rebuild corals because of their destruction by cyanide fishing.
This is clear from the "whereas" clauses of Resolution No. 33,
accompanying Ordinance No. 2-93:
WHEREAS, scientific and factual researches and studies
disclose that only five (5) percent of the corals of our province
remain to be in excellent condition as habitat of marine coral
dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the destruction and
devastation of the corals of our province were principally due
to illegal fishing activities like dynamite fishing, sodium
cyanide fishing, use of other obnoxious substances and other
related activities;
WHEREAS, there is an imperative and urgent need to protect
and preserve the existence of the remaining excellent corals
and allow the devastated ones to reinvigorate and regenerate
themselves into vitality within the span of five (5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of R.A. 7160
otherwise known as the Local Government Code of 1991
empowers the Sangguniang Panlalawigan to protect the
environment and impose appropriate penalties [for] acts which
endanger the environment such as dynamite fishing and other
forms of destructive fishing, among others;
The principal aim of the ordinance is thus the preservation and
rehabilitation of the corals. Only indirectly is it also concerned
with prohibiting the use of cyanide. That this is the aim of the
ordinance can also be inferred from the fact that the ban
imposed by it on the catching and gathering of fishes is for a
limited period (5 years) calculated to be the time needed for
the growth and regeneration of the corals. Were the purpose of
the ordinance the prohibition of the use of cyanide for fishing,
the ban would not be for a limited period only but for all time.
I am not much moved by the plea that the ordinances deprive
small fishermen of their means of livelihood and occupation.
The ban imposed by Ordinance No. 2-93, as amended, covers
only three species, i.e., mameng (scaridae), panther or señorita
(cromilepres altivelis) and ornamental aquarium fishes
(balistiedae), which are prized in the black market. With
respect to other species, it is open season for legitimate
fishermen. On the other hand, the ban imposed by Ordinance
No. 15-92 allows the transportation and shipment of sea bass,
catfish, mudfish and milkfish fries. The ban imposed by the
two ordinances is limited to five years. It is thus limited both
as to scope and as to period of effectivity. There is, on the
other hand, the imperative necessity for measures to prevent
the extinction of certain species of fish.
Indeed, the burden of showing that there is no reasonable
relation between the end and the means adopted in this case is
not on the local governments but on petitioners because of the
presumption that a regulatory statute is valid in the absence of
factual evidence to the contrary. As held in United States
v. Salaveria.13 "The presumption is all in favor of validity. . .
The councilors must, in the very nature of things, be familiar
with the necessities of their particular municipality and with
all the facts and circumstances which surround the subject, and
necessitate action. The local legislative body, by enacting the
ordinance, has in effect given notice that the regulations are
essential to the well being of the people. . . . The Judiciary
should not lightly set aside legislative action when there is not
43
a clear invasion of personal or property rights under the guise
of police regulation."
Page
Finally, petitioners question Office Order No. 23, s. of 1993,
of the city mayor of Puerto Princesa, for being allegedly
vague. This order prohibits the transportation of fish outside
the city without permit from the mayor's office. Petitioners
contend that the order does not state under what condition a
permit may be granted and, consequently, leaves it to the
absolute discretion of the mayor when to grant and when to
deny a permit. The questioned paragraph of the order states:
The purpose of the inspection is to ascertain whether the
shipper possessed the required Mayor's Permit issued by this
Office and the shipment is covered by invoice or clearance
issued by the local office of the Bureau of Fisheries and
Aquatic Resources and as to compliance with all other existing
rules and regulations on the matter.
This contention is untenable. As the office order is intended to
implement City Ordinance No. 15-92, resort must be made to
the ordinance in order to determine the scope of such office
order. As already noted, the ordinance prohibits the shipment
out of Puerto Princesa of live fish and lobsters, with the
exception of catfish, mudfish and milkfish fries. Consequently,
a permit may be denied if it is for the transportation of fishes
which are covered by the ban, but not for those not covered by
it. This is the common sense meaning of the office order in
question. Criminal laws must be precisely drawn, but, as
Justice Holmes once said, "We agree to all the generalities
about not supplying criminal laws with what they omit, but
there is no canon against using common sense in construing
laws as saying what they obviously mean."14
One final point. This case was brought to this Court on the
bare bones of the ordinances, on the mere claim of petitioner
Alfredo Tano and his 83 copetitioners that they are subsistence
fishermen. The constitutional protection refers to small
fishermen who depend on the sea for their existence. Ten of
the petitioners, led by Alfredo Tano, are accused in the
Municipal Circuit Trial Court of possession of the species
covered by Provincial Ordinance No. 2-93, while two, Roberto
Lim and Virginia Lim, are charged with violation of the two
ordinances in the City Prosecutor's Office. There is no telling
from the records of this case whether petitioners are
subsistence fishermen or simply impecunious individuals
selling their catch to the big businessmen. The other
petitioners are admittedly fish traders, members of an
association of airline shippers, to whom the constitutional
provisions obviously do not apply.
The judicial invalidation of the ordinances in this case could
undermine the on-going trial of some of petitioners. Instead of
leaving the determination of the validity of the ordinances to
the trial court, where some of petitioners are facing charges,
this Court will be shortcircuiting the criminal process by
prematurely passing upon the constitutional questions and
indirectly on the criminal liability of some of the petitioners.
This is a task which should await the development of evidence
of record.
Indeed because of the unsatisfactory abstractness of the
record, this case should not have been brought here. The mere
fact that some of petitioners are facing prosecution for
violation of the ordinances is no reason for entertaining their
suit. Our jurisdiction is limited to cases and controversies.
Who are petitioners? What is the impact of the ordinance on
their economic situation? Are the factual bases of the two
ordinances supported by evidence? These questions must be
raised in the criminal trial or in a suit brought in the trial court
so that facts necessary to adjudicate the constitutional
questions can be presented. Nothing can take the place of the
flesh and blood of litigation to assess the actual operation of a
statute and thus ground the judicial power more firmly.
Petitioners justify the filing of the present action in this Court
on the ground that constitutional questions must be raised at
the earliest time. That is true, but it does not mean that the
questions should be presented to the Supreme Court first hand.
Moreover, the rule is not absolute. Constitutional questions
like those invoked by petitioners can be raised anytime, even
in a motion for reconsideration, if their resolution is necessary
to the decision of an actual case or controversy, as our recent
resolution15 of the constitutionality of R.A. No. 7659,
reimposing the death penalty, amply demonstrates.
Romero, Melo, Puno and Francisco, JJ., concur.
BELLOSILLO, J., dissenting:
It is settled rule that where the provisions of the law are clear
and unambiguous there is no room for interpretation. The duty
of the court is only to apply the law. The exception to such
rule cannot be justified on the sole basis of good motives or
noble objectives. For it is also basic that the end does not
justify the means.
The petition raises significant constitutional questions. While
petitioners apparently instituted the action to enjoin their
criminal prosecution, the issue boils down to whether the
subject ordinances of Palawan and Puerto Princesa are valid
and enforceable as to authorize the criminal prosecution of
those charged with violation thereof.
Notwithstanding the procedural limitations strictly applied in
the majority opinion to render the petition dismissible on
grounds of prematurity and lack of real interest in the
controversy, the case clearly falls under the exceptions
allowed by law. The petition, I submit, can be properly treated
as a special civil action for certiorari and prohibition under
Rule 65 of the Rules of Court to correct errors of jurisdiction
committed by the lower court arising from the implementation
of a void ordinance. Even if the purpose of the petition is for
declaratory relief, if the petition has far-reaching implications
and raises questions that should be resolved as they involve
national interest, it may be treated as a special civil action
44
under Rule 65. 1 The mere absence of a prior motion to quash
the Information in the trial court should not prevent the
Page
accused, petitioners herein, from seeking to render null and
void the criminal proceedings below.
In criminal cases, when the constitutionality or validity of a
law or ordinance is essentially involved, the same may be
raised at any stage of the proceedings. It can also be
considered by the appellate court at any time if it involves the
jurisdiction of the lower Court. 2 Further, under Sec. 8, Rule
117, of the Rules on Criminal Procedure, the failure of the
accused to assert any ground of a motion to quash before he
pleads to the Complaint or Information either because he did
not file a motion to quash or failed to allege the same in the
motion shall be deemed a waiver of the grounds of a motion to
quash, except the grounds of no offense charged, lack of
jurisdiction over the offense charged, extinction of the offense
or penalty, and jeopardy.
Petitioners are proper parties to set aside the proceedings in
the trial court. A proper party is one who has sustained or is in
immediate danger of sustaining an injury as a result of the act
complained of. Petitioners have been criminally charged and
arrested for alleged violation of the ordinances in question.
Consequently, unless the trial court is enjoined from
continuing with the proceedings, petitioners are in danger of
being convicted and punished under ordinances which they
allege to be invalid and ineffective. In fact this Court initially
recognized the real interest of petitioners in instituting the
action when it issued a restraining order directing Judge Angel
R. Miclat to cease and desist until further orders from
proceeding with the arraignment and pre-trial of People
v. Alfredo Tano, et al., Crim. Case No. 11223, for violation of
Resolution No. 2-93 of the Sangguniang Panlalawigan of
Palawan, and Ordinance No. 15-92 of the Sangguniang
Panlungsod of Puerto Princesa City.
The question to be resolved is whether Resolution No. 2-93,
Office Order No. 23 and Ordinance No. 15-92 are
constitutional, valid and enforceable. By considering the
purpose and objective of the ordinances as laudable, the
majority adopts the affirmative view in consonance with the
general welfare clause and principle of devolution well-rooted
in the Local Government Code of 1991.
While I agree with the majority that the local leaders of
Palawan and Puerto Princesa City be commended for their
efforts to uplift and protect the environment and natural
resources within their areas, the general welfare clause is not
the sole criterion to determine the validity or constitutionality
of the ordinances. In Magtajas v. Pryce Properties
Corporation, 3 we reiterated that the well-established tests of
a valid ordinance are: (a) It must not contravene the
Constitution or any statute; (b) It must not be unfair or
oppressive; (c) It must not be partial or discriminatory; (d) It
must not prohibit but may regulate trade; (e) It must be
general and consistent with public policy; and, (f) It must not
be unreasonable.
As admitted by the majority, among our existing statutes on
fishing and fishery or aquatic resources are P.D. Nos. 704,
1015 and 1219. P.D. No. 704 is titled "Revising and
Consolidating All Laws and Decrees Affecting Fishing and
Fisheries." With the enactment of the Local Government Code
of 1991, only Secs. 16 and 29 of P.D. No. 704 were expressly
repealed. All the rest of the provisions of P.D. No. 704 remain
valid and effective, Sec. 4 of which is enlightening —
Sec. 4. Jurisdiction of the Bureau (of Fisheries and Aquatic
Resources). — The Bureau shall have jurisdiction and
responsibility in the management, conservation, development,
protection, utilization and disposition of all fishery and aquatic
resources of the country except municipal waters which shall
be under the municipal or city government
concerned: Provided, That fishpens and seaweed culture in
municipal centers shall be under the jurisdiction of the
Bureau: Provided, further, That all municipal or city
ordinances and resolutions affecting fishing and fisheries and
any disposition thereunder shall be submitted to the Secretary
for appropriate action and shall have full force and effect only
upon his approval. The Bureau shall also have authority to
regulate and supervise the production, capture and gathering
of fish and fishery/aquatic products.
There is no doubt that under P.D. No. 704 fishing, fishery and
aquatic resources in municipal waters are under the
jurisdiction of the municipal or city government concerned.
However, the same decree imposes a mandatory requirement
directing municipal or city governments to submit ordinances
enacted pertinent to fishing and fishery resources to the
Secretary of Agriculture who now has control and supervision
over the Bureau of Fisheries and Aquatic Resources (BFAR).
The ordinances will attain full force and effect only upon the
approval of the Secretary of Agriculture.
Ordinance 15-92 of Puerto Princesa City, admittedly, was not
submitted to the Secretary of Agriculture through the BFAR
for approval. Such failure of compliance with the law
prevented it from becoming valid and effective. Consequently,
Office Order No. 23 of the Mayor of Puerto Princesa City
which seeks to implement and enforce Ordinance No. 15-92 is
also ineffective as there is nothing to implement.
To say that Sec. 4 of P.D. No. 704 was impliedly repealed by
the Local Government Code is gratuitous. For, if it was the
intention of the legislature to dispense with the requirement of
prior approval by the Secretary of Agriculture of ordinances
pertinent to fishery resources, it would. have expressly
repealed Sec. 4 when, in fact, it did so with Secs. 16 and 29 of
P.D. No. 704. Cases abound holding that a repeal by
implication is not presumed or favored considering that the
legislature is presumed to be aware of existing laws;
ordinarily, if it intends to revoke a statute it would manifest
such intention in express terms. 4 Before such a repeal is
deemed to exist it should be shown that the statutes or
statutory provisions deal with the same subject matter and that
the latter be inconsistent with the former. There must be a
showing of repugnancy clear and convincing in character. The
language used in the latter statute must be such as to render it
irreconcilable with what has been formerly enacted. An
inconsistency that falls short of that standard does not suffice.
45
In fact, there is no inconsistency between the Local
Government Code and P.D. No. 704 as amended. While the
Page
Local Government Code vests power upon the local
government to enact ordinances for the general welfare of its
inhabitants, such power is subject to certain limitations
imposed by the Code itself and by other statutes. When the
legislature failed to repeal Sec. 4 of P.D. No. 704 it accepted
and recognized a limitation on the power of the local
government to enact ordinances relative to matters affecting
fishery and aquatic resources. A reading of particular
provisions of the Local Government Code itself will reveal
that devolution on the powers of the local government
pertaining to the protection of environment is limited and not
all-encompassing, as will be discussed in the succeeding
paragraphs.
Further, while the Local Government Code is a general law on
the powers, responsibilities and composition of different local
government units, P.D. No. 704 is a special law dealing with
the protection and conservation of fishing and aquatic
resources including those in the municipal waters. Hence, the
special law should prevail over the general law.
There is also P.D. No. 1015 which vests upon the Secretary of
Agriculture the authority to establish closed seasons. Another
existing law on fisheries which has not been repealed by the
Local Government Code is P.D. No. 1219, which provides for
the exploration, exploitation, utilization and conservation of
coral resources. Section 4 thereof provides that the decree
shall be implemented by the Secretary of Environment and
Natural Resources who shall have jurisdiction and
responsibility in the exploration, exploitation, utilization and
conservation of coral resources. Section 6 authorizes the
Secretary to issue special permit to any person or institution to
gather in limited quantities any coral for scientific or
educational purposes. Section 10 empowers the Secretary to
promulgate rules and regulations for the implementation of
this law.
It is true that police power can be exercised through the
general welfare clause. But, while police power is inherent in a
state, it is not so in municipal corporations or local
governments. In order that a local government may exercise
police power, there must be a legislative grant which
necessarily sets the limits for the exercise of the power. 5 In
this case, Congress has enacted the Local Government Code
which provides the standards as well as the limitations in the
exercise of the police power by the local government unit.
Section 2 of the Local Government Code provides for a
system of decentralization whereby local government units are
given more powers, authority, responsibilities and resources,
and the process shall proceed from the national government to
the local government units. However, under Sec 3, par. (i), of
the Local Government Code, the operative principles of
decentralization upon the environment and natural resources
are not absolute when it is provided therein that "local
government units shall share with the national government the
responsibility in the management and maintenance of
ecological balance within their territorial jurisdiction, subject
to the provisions of this Code and national policies." The
national policies mentioned here refer to existing policies
which the DENR and other government agencies concerned
with the environment may implement at any given moment.
The national policies are embodied in existing laws, rules and
regulations pertaining to environment and natural resources,
such as P.D. Nos. 704 and 1219 relating to fishery resources.
The above provision was crafted to make sure that local
government enactments do not supplant or negate national
government policies on environment. 6 This is precisely the
reason why the Local Government Code did not repeal Sec. 4
of P.D. NO. 704 requiring prior submission to and approval by
the Secretary of Agriculture of ordinances relative to fishery
and aquatic resources. Needless to stress, the approval of the
Secretary is necessary in order to ensure that these ordinances
are in accordance with the laws on fisheries and national
policies. Likewise, the jurisdiction of the Secretary of
Environment and Natural Resources over coral resources
under P.D. No. 1219 remains.
The core of the devolution adopted by the Local Government
Code is found in Sec. 17 thereof which reiterates the basic
services and facilities to be rendered by the local governments.
With respect to the protection and conservation of fisheries,
Sec. 17, par. 2 (i), specifically provides that the municipality
shall conduct "extension and on-site research services and
facilities related to agriculture and fishery activities which
include dispersal of livestock and poultry, fingerlings and
other seeding materials for aquaculture
. . . . and enforcement of fishery laws in municipal waters
including the conservation of mangroves . . . ." The power
devolved upon the municipality under the Local Government
Code is the enforcement of existing fishery laws of the State
and not the enactment thereof. While a local government unit
may adopt ordinances upon subjects covered by law or statute,
such ordinances should be in accordance with and not
repugnant to the law. 7 In view thereof, ordinances which may
be enacted by the municipality or city should be pursuant to
the provisions of P.D. Nos. 704, 1015 and 1219. Thus, under
the provisions of Secs. 447, par. 1 (vi), 458, par. 1 (vi) and
468, par. 1 (vi), the municipality, city and province
respectively may approve ordinances protecting the
environment by specifically penalizing only those acts which
endanger the environment such as dynamite fishing and other
forms of destructive fishing which are already prohibited
under P.D. Nos. 704 and 1219, and other laws on illegal
fishing. 8
The questioned ordinances may also be struck down for being
not only a prohibitory legislation but also an unauthorized
exercise of delegation of powers. An objective, however
worthy or desirable it may be, such as the protection and
conservation of our fisheries in this case, can be attained by a
measure that does not encompass too wide a field. The
purpose can be achieved by reasonable restrictions rather than
by absolute prohibition. Local governments are not possessed
with prohibitory powers but only regulatory powers under the
general welfare clause. 9 They cannot therefore exceed the
powers granted to them by the Code by altogether prohibiting
fishing and selling for five (5) years all live fishes through
46
Ordinance No. 15-92 and coral organisms through Ordinance
No. 2-93 involving even lawful methods of fishing.
Page
These prohibitions are tantamount to the establishment of a and boundaries of its raison d'etre. This I cannot help viewing
closed season for fish and aquatic resources which authority is as plain arbitrariness masquerading as police power. For the
not among those powers vested by the Local Government consequent deprivation of the main source of livelihood of the
Code to the local government units. For the authority to people of Palawan can only be regarded as utter depravation of
establish a closed season for fisheries is vested upon the this awesome power of the State.
Secretary of Agriculture by virtue of P.D. Nos. 704 and 1015
and in the Secretary of Environment and Natural resources For all the foregoing, I vote to grant the petition.
pursuant to P.D. No. 1219 in relation to coral resources. The
power of the local governments is confined and limited to Kapunan and Hermosisima, Jr., JJ., concur.
ensuring that these national fishery laws are implemented and
enforced within their territorial jurisdictions. Hence, any
memorandum of agreement which might have been executed
by the Department of Agriculture or Department of
Environment and Natural Resources granting additional
powers and functions to the local governments which are not
vested upon the latter by the Local Government Code because
such powers are covered by existing statutes, is an undue
delegation of power and, consequently, null and void.

The majority also cites R.A. No. 7611, otherwise known as the
Strategic Environmental Plan (SEP) for Palawan Act, as proof
of the power of the local governments of Palawan and Puerto
Princesa City to issue the assailed ordinances. Although the
objectives of R.A. No. 7611 and of the ordinances are one and
the same, i.e., the protection, conservation and development of
natural resources, the former does not grant additional powers
to the local governments pertaining to the environment. In
fact, the law adopts a comprehensive framework which shall
serve to direct and guide local governments and national
government agencies in the implementation of programs and
projects affecting Palawan. With the enactment of this Act, the
local governments are mandated to coordinate and align their
developmental plans, projects and budgets in accord with the
framework of the SEP. It can be said that this is another
limitation on the exercise of police power by the local
governments of Palawan and Puerto Princesa City because the
governance, implementation and policy direction of the SEP
shall be exercised by the Palawan Council for Sustainable
Development (PCSD) which is under the Office of the
President.

Finally, I find unreasonable Resolution No. 2-93 of Palawan

and Ordinance No. 15-92 of Puerto Princesa City. The
prohibitions set forth are not germane to the accomplishment
of their goals. Ordinance No. 15-92 is aimed to free effectively
the marine resources of Puerto Princesa from cyanide and
other obnoxious substances. But the means to achieve this
objective borders on the excessive and irrational, for the edict
would absolutely ban the shipment of live fishes and lobsters
out of the city for a period of five (5) years without prohibiting
cyanide fishing itself which is the professed goal of the
ordinance. The purpose of Resolution No. 2-93, on the other
hand, is to protect and preserve all marine coral-dwelling
organisms from devastation and destruction by illegal fishing
activities, e.g., dynamite fishing, sodium cyanide fishing, and
the use of other obnoxious substances. But in absolutely
47

prohibiting the catching, gathering, buying and shipment of

live fishes and marine coral resources by any means including
those lawfully executed or done in the pursuit of legitimate
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occupation, the ordinance overstepped the reasonable limits