Pub Corp Week 3

1.
MARIANO VS COMELEC, 242 SCRA 211, 1995
G.R. No. 118577 March 7, 1995
JUANITO MARIANO, JR. et al., petitioners,

vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON.
JEJOMAR BINAY, THE MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF
MAKATI, respondents.
G.R. No. 118627 March 7, 1995
JOHN R. OSMEÑA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON.
JEJOMAR BINAY, MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF
MAKATI, respondents.
PUNO, J.: EN BANC
At bench are two (2) petitions assailing certain provisions of Republic Act No. 7854 as
unconstitutional. R.A. No. 7854 as unconstitutional. R.A. No. 7854 is entitled, "An Act
Converting the Municipality of Makati Into a Highly Urbanized City to be known as the
City of Makati."1
G.R. No. 118577 involves a petition for prohibition and declaratory relief. It was filed by
petitioners Juanito Mariano, Jr., Ligaya S. Bautista, Teresita Tibay, Camilo Santos,
Frankie Cruz, Ricardo Pascual, Teresita Abang, Valentina Pitalvero, Rufino Caldoza,
Florante Alba, and Perfecto Alba. Of the petitioners, only Mariano, Jr., is a resident of
Makati. The others are residents of Ibayo Ususan, Taguig, Metro Manila. Suing as
taxpayers, they assail as unconstitutional sections 2, 51, and 52 of R.A. No. 7854 on the
following grounds:
1. Section 2 of R.A. No. 7854 did not properly identify the land area or territorial
jurisdiction of Makati by metes and bounds, with technical descriptions, in violation of
Section 10, Article X of the Constitution, in relation to Sections 7 and 450 of the Local
Government Code;
2. Section 51 of R.A. No. 7854 attempts to alter or restart the "three consecutive term"
limit for local elective officials, in violation of Section 8, Article X and Section 7, Article VI
of the Constitution.
3. Section 52 of R.A. No. 7854 is unconstitutional for:
(a) it increased the legislative district of Makati only by special law (the Charter in
violation of the constitutional provision requiring a general reapportionment law to be
passed by Congress within three (3) years following the return of every census;
(b) the increase in legislative district was not expressed in the title of the bill; and
(c) the addition of another legislative district in Makati is not in accord with Section 5 (3),
Article VI of the Constitution for as of the latest survey (1990 census), the population of
Makati stands at only 450,000.
G.R. No. 118627 was filed by the petitioner John H. Osmeña as senator, taxpayer, and
concerned citizen. Petitioner assails section 52 of R.A. No. 7854 as unconstitutional on
the same grounds as aforestated.
We find no merit in the petitions.
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I
Section 2, Article I of R.A. No. 7854 delineated the land areas of the proposed city of
Makati, thus:
Sec. 2. The City of Makati. — The Municipality of Makati shall be converted into a highly
urbanized city to be known as the City of Makati, hereinafter referred to as the
City, which shall comprise the present territory of the Municipality of Makati in
Metropolitan Manila Area over which it has jurisdiction bounded on the northeast by
Pasig River and beyond by the City of Mandaluyong and the Municipality of Pasig; on
the southeast by the municipalities of Pateros and Taguig; on the southwest by the City
of Pasay and the Municipality of Taguig; and, on the northwest, by the City of Manila.
The foregoing provision shall be without prejudice to the resolution by the appropriate
agency or forum of existing boundary disputes or cases involving questions of territorial
jurisdiction between the City of Makati and the adjoining local government units.
(Emphasis supplied)
In G.R. No. 118577, petitioners claim that this delineation violates sections 7 and 450 of
the Local Government Code which require that the area of a local government unit
should be made by metes and bounds with technical descriptions.2
The importance of drawing with precise strokes the territorial boundaries of a local unit of
government cannot be overemphasized. The boundaries must be clear for they define
the limits of the territorial jurisdiction of a local government unit. It can legitimately
exercise powers of government only within the limits, its acts are ultra vires. Needless to
state, any uncertainty in the boundaries of local government units will sow costly
conflicts in the exercise of governmental powers which ultimately will prejudice the
people's welfare. This is the evil sought to avoided by the Local Government Code in
requiring that the land area of a local government unit must be spelled out in metes and
bounds, with technical descriptions.
Given the facts of the cases at bench, we cannot perceive how this evil can be brought
about by the description made in section 2 of R.A. No. 7854, Petitioners have not
demonstrated that the delineation of the land area of the proposed City of Makati will
cause confusion as to its boundaries. We note that said delineation did not change even
by an inch the land area previously covered by Makati as a municipality. Section 2 did
not add, subtract, divide, or multiply the established land area of Makati. In language that
cannot be any clearer, section 2 stated that, the city's land area "shall comprise
the present territory of the municipality."
The deliberations of Congress will reveal that there is a legitimate reason why the land
area of the proposed City of Makati was not defined by metes and bounds, with technical
descriptions. At the time of the consideration of R.A. No. 7854, the territorial dispute
between the municipalities of Makati and Taguig over Fort Bonifacio was under court
litigation. Out of a becoming sense of respect to co-equal department of government,
legislators felt that the dispute should be left to the courts to decide. They did not want to
foreclose the dispute by making a legislative finding of fact which could decide the issue.
This would have ensued if they defined the land area of the proposed city by its exact
metes and bounds, with technical descriptions.3 We take judicial notice of the fact that
Congress has also refrained from using the metes and bounds description of land areas
of other local government units with unsettled boundary disputes.4
We hold that the existence of a boundary dispute does not per se present an

insurmountable difficulty which will prevent Congress from defining with reasonable
certitude the territorial jurisdiction of a local government unit. In the cases at bench,
Congress maintained the existing boundaries of the proposed City of Makati but as an
act of fairness, made them subject to the ultimate resolution by the courts. Considering
these peculiar circumstances, we are not prepared to hold that section 2 of R.A. No.
7854 is unconstitutional. We sustain the submission of the Solicitor General in this
regard, viz.:
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Going now to Sections 7 and 450 of the Local Government Code, it is beyond cavil that
the requirement stated therein, viz.: "the territorial jurisdiction of newly created or
converted cities should be described by meted and bounds, with technical descriptions"
— was made in order to provide a means by which the area of said cities may be
reasonably ascertained. In other words, the requirement on metes and bounds was
meant merely as tool in the establishment of local government units. It is not an end in
itself. Ergo, so long as the territorial jurisdiction of a city may be reasonably
ascertained, i.e., by referring to common boundaries with neighboring municipalities, as
in this case, then, it may be concluded that the legislative intent behind the law has been
sufficiently served.
Certainly, Congress did not intends that laws creating new cities must contain therein
detailed technical descriptions similar to those appearing in Torrens titles, as petitioners
seem to imply. To require such description in the law as a condition sine qua non for its
validity would be to defeat the very purpose which the Local Government Code to seeks
to serve. The manifest intent of the Code is to empower local government units and to
give them their rightful due. It seeks to make local governments more responsive to the
needs of their constituents while at the same time serving as a vital cog in national
development. To invalidate R.A. No. 7854 on the mere ground that no cadastral type of
description was used in the law would serve the letter but defeat the spirit of the Code. It
then becomes a case of the master serving the slave, instead of the other way around.
This could not be the intendment of the law.
Too well settled is the rule that laws must be enforced when ascertained, although it may
not be consistent with the strict letter of the statute. Courts will not follow the letter of the
statute when to do so would depart from the true intent of the legislature or would
otherwise yield conclusions inconsistent with the general purpose of the act. (Torres v.
Limjap, 56 Phil., 141; Tañada v. Cuenco, 103 Phil. 1051; Hidalgo v. Hidalgo, 33 SCRA
1105). Legislation is an active instrument of government, which, for purposes of
interpretation, means that laws have ends to achieve, and statutes should be so
construed as not to defeat but to carry out such ends and purposes (Bocolbo v.
Estanislao, 72 SCRA 520). The same rule must indubitably apply to the case at bar.
II
Petitioners in G.R. No. 118577 also assail the constitutionality of section 51, Article X of
R.A. No. 7854. Section 51 states:
Sec. 51. Officials of the City of Makati. — The represent elective officials of the
Municipality of Makati shall continue as the officials of the City of Makati and shall
exercise their powers and functions until such time that a new election is held and the
duly elected officials shall have already qualified and assume their offices: Provided, The
new city will acquire a new corporate existence. The appointive officials and employees
of the City shall likewise continues exercising their functions and duties and they shall be
automatically absorbed by the city government of the City of Makati.
They contend that this section collides with section 8, Article X and section 7, Article VI
of the Constitution which provide:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall
be determined by law, shall be three years and no such official shall serve for more than
three consecutive terms. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of his service for the full term for
which he was elected.
xxx xxx xxx
Sec. 7. The Members of the House of Representatives shall be elected for a term of
three years which shall begin, unless otherwise provided by law, at noon on the thirtieth
day of June next following their election.
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No Member of the House of Representatives shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was
elected.
Petitioners stress that under these provisions, elective local officials, including Members
of the House of Representative, have a term of three (3) years and are prohibited from
serving for more than three (3) consecutive terms. They argue that by providing that the
new city shall acquire a new corporate existence, section 51 of R.A. No. 7854 restarts
the term of the present municipal elective officials of Makati and disregards the terms
previously served by them. In particular, petitioners point that section 51 favors the
incumbent Makati Mayor, respondent Jejomar Binay, who has already served for two (2)
consecutive terms. They further argue that should Mayor Binay decide to run and
eventually win as city mayor in the coming elections, he can still run for the same
position in 1998 and seek another three-year consecutive term since his previous three-
year consecutive term as municipal mayor would not be counted. Thus, petitioners
conclude that said section 51 has been conveniently crafted to suit the political ambitions
of respondent Mayor Binay.
We cannot entertain this challenge to the constitutionality of section 51. The

requirements before a litigant can challenge the constitutionality of a law are well
delineated. They are: 1) there must be an actual case or controversy; (2) the question of
constitutionality must be raised by the proper party; (3) the constitutional question must
be raised at the earliest possible opportunity; and (4) the decision on the constitutional
question must be necessary to the determination of the case itself.5
Petitioners have far from complied with these requirements. The petition is premised on
the occurrence of many contingent events, i.e., that Mayor Binay will run again in this
coming mayoralty elections; that he would be re-elected in said elections; and that he
would seek re-election for the same position in the 1998 elections. Considering that
these contingencies may or may not happen, petitioners merely pose a hypothetical
issue which has yet to ripen to an actual case or controversy. Petitioners who are
residents of Taguig (except Mariano) are not also the proper parties to raise this abstract
issue. Worse, they hoist this futuristic issue in a petition for declaratory relief over which
this Court has no jurisdiction.
III
Finally, petitioners in the two (2) cases at bench assail the constitutionality of section 52,
Article X of R.A. No. 7854. Section 52 of the Charter provides:
Sec. 52. Legislative Districts. — Upon its conversion into a highly-urbanized city, Makati
shall thereafter have at least two (2) legislative districts that shall initially correspond to
the two (2) existing districts created under Section 3(a) of Republic Act. No. 7166 as
implemented by the Commission on Elections to commence at the next national
elections to be held after the effectivity of this Act. Henceforth, barangays Magallanes,
Dasmariñas and Forbes shall be with the first district, in lieu of Barangay Guadalupe-
Viejo which shall form part of the second district. (emphasis supplied)
They contend. that the addition of another legislative district in Makati is unconstitutional
for: (1) reapportionment6 cannot made by a special law, (2) the addition of a legislative
district is not expressed in the title of the bill 7 and (3) Makati's population, as per the
1990 census, stands at only four hundred fifty thousand (450,000).
These issues have been laid to rest in the recent case of Tobias v. Abalos.8 In said case,
we ruled that reapportionment of legislative districts may be made through a special law,
such as in the charter of a new city. The Constitution 9 clearly provides that Congress
shall be composed of not more than two hundred fifty (250) members, unless otherwise
fixed by law. As thus worded, the Constitution did not preclude Congress from increasing
its membership by passing a law, other than a general reapportionment of the law. This
is its exactly what was done by Congress in enacting R.A. No. 7854 and providing for an
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increase in Makati's legislative district. Moreover, to hold that reapportionment can only
be made through a general apportionment law, with a review of all the legislative districts
allotted to each local government unit nationwide, would create an inequitable situation
where a new city or province created by Congress will be denied legislative
representation for an indeterminate period of time. 10 The intolerable situations will
deprive the people of a new city or province a particle of their sovereignty. 11 Sovereignty
cannot admit of any kind of subtraction. It is indivisible. It must be forever whole or it is
not sovereignty.
Petitioners cannot insist that the addition of another legislative district in Makati is not in
accord with section 5(3), Article VI 12 of the Constitution for as of the latest survey (1990
census), the population of Makati stands at only four hundred fifty thousand
(450,000). 13 Said section provides, inter alia, that a city with a population of at least two
hundred fifty thousand (250,000) shall have at least one representative. Even granting
that the population of Makati as of the 1990 census stood at four hundred fifty thousand
(450,000), its legislative district may still be increased since it has met the minimum
population requirement of two hundred fifty thousand (250,000). In fact, section 3 of the
Ordinance appended to the Constitution provides that a city whose population
has increased to more than two hundred fifty thousand (250,000) shall be entitled to at
least one congressional representative. 14
Finally, we do not find merit in petitioners' contention that the creation of an additional
legislative district in Makati should have been expressly stated in the title of the bill. In
the same case of Tobias v. Abalos, op cit., we reiterated the policy of the Court favoring
a liberal construction of the "one title-one subject" rule so as not to impede legislation.
To be sure, with Constitution does not command that the title of a law should exactly
mirror, fully index, or completely catalogue all its details. Hence, we ruled that "it should
be sufficient compliance if the title expresses the general subject and all the provisions
are germane to such general subject."
WHEREFORE, the petitions are hereby DISMISSED for lack of merit No costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason,
Vitug, Kapunan, Mendoza and Francisco, JJ., concur.
Separate Opinions
DAVIDE, JR., J., concurring:
I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to
add a few observations.
I.
Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or
barangay may be created, divided, merged, abolished, or its boundary substantially
altered, except in accordance with the criteria established in the local government code
and subject to the approval by a majority of the votes cast in a plebiscite in the political
units directly affected." These criteria are now set forth in Section 7 of the Local
Government Code of 1991 (R.A. No. 7160). One of these is that the territorial jurisdiction
of the local government unit to be created or converted should be properly identified by
metes and bounds with technical descriptions.
The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into a
Highly Urbanized City to be Known as the City of Makati) to describe the territorial
boundaries of the city by metes and bounds does not make R.A. No. 7854
unconstitutional or illegal. The Constitution does not provide for a description by metes
and bounds as a condition sine qua non for the creation of a local government unit or its
conversion from one level to another. The criteria provided for in Section 7 of R.A. No.
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7854 are not absolute, for, as a matter of fact, the section starts with the clause "as a
general rule." The petitioners' reliance on Section 450 of R.A. No. 7160 is unavailing
Said section only applies to the conversion of a municipality or a cluster of barangays
into a COMPONENT CITY, not a highly urbanized city. It pertinently reads as follows:
Sec. 450. Requisite for creation. — (a) A municipality or a cluster of barangays may be

converted into a component city if it has an average annual income, as certified by the
Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last
two (2) consecutive years based on 1991 constant prices, and if it has either of the
following requisites:
xxx xxx xxx
(b) The territorial jurisdiction of a newly created city shall be properly identified by metes
and bounds. . . .
The constitution classifies cities as either highly urbanized or component. Section 12 of

Article X thereof provides:
Sec. 12. Cities that are highly urbanized, as determined by law, and component cities
whose charters prohibit their voters from voting for provincial elective officials, shall be
independent of the province. The voters of component cities within a province, whose
charters contain no such prohibition, shall not be deprived of their right to vote for
elective provincial officials.
And Section 451 of R.A. No. 7160 provides:
Sec. 451. Cities Classified. — A city may either be component or highly

urbanized: Provided, however, That the criteria established in this Code shall not affect
the classification and corporate status of existing cities.
Independent component cities are those component cities whose charters prohibit their
voters from voting for provincial elective officials. Independent component cities shall be
independent of the province.
II.
Strictly speaking, the increase in the number of legislative seats for the City of Makati
provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise
fixed by law in paragraph 1, Section 5, Article VI of the Constitution. That clause
contemplates of the reapportionment mentioned in the succeeding paragraph (4) of the
said Section which reads in full as follows:
Within three years following the return of every census, the Congress shall make a
reapportionment of legislative districts based on the standards provided in this section.
In short, the clause refers to a general reapportionment law.
The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of
the Ordinance appended to the Constitution which reads:
Sec. 1. For purposes of the election of Members of the House of Representatives of the
First Congress of the Philippines under the Constitution proposed by the 1986
Constitutional Commission and subsequent elections, and until otherwise provided by
law, the Members thereof shall be elected from legislative districts apportioned among
the provinces, cities, and the Metropolitan Manila Area as follows:
METROPOLITAN MANILA AREA
xxx xxx xxx
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MAKATI one (1)
xxx xxx xxx
Sec. 3. Any province that may hereafter be created, or any city whose population may
hereafter increase to more than two hundred fifty thousand shall be entitled in the
immediately following election to at least one Member or such number of Members as it
may be entitled to on the basis of the number of its inhabitants and according to the
standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The
number of Members apportioned to the province out of which such new province was
created, or where the city, whose population has so increased, is geographically located
shall be correspondingly adjusted by the Commission on Elections but such adjustment
shall not be made within one hundred and twenty days before the election. (Emphases
supplied)
Footnotes
1 R.A. No. 7854 is a consolidation of House Bill No. 12240 sponsored by Congressman
Joker Arroyo and Senate Bill No. 1244 sponsored by Senator Vicente Sotto III.
2 Sec. 7. Creation and Conversion. — As a general rule, the creation of a local

government unit or its conversion from one level to another level shall be based on
verifiable indicators of viability and projected capacity to provide services, to wit:
(c) Land Area. — It must be contiguous, unless it comprises two (2) or more islands or is
separated by a local government unit independent of the others; properly identified by
metes and bounds with technical descriptions and sufficient to provide for such basic
services and facilities to meet the requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the Department of

Finance the National Statistics Office (NSO), and the Lands Management Bureau (LMB)
of the Department of Environment and Natural Resources (DENR).
xxx xxx xxx
Sec. 450. Requisites for Creation. — . . .
(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes
and bounds. . . .
3 August 18, 1994, Senate Deliberations on H.B. No. 12240, pp. 23-28.
5 Dumlao v. COMELEC, 95 SCRA 392 (19180); Cruz, Constitutional Law
6 Section 5(4), Article VI of the Constitution provides:
(4) Within three years following the return of every census, the Congress shall make a
reapportionment of legislative districts based on the standards provided in this section.
7 Section 26(1), Article VI of the Constitution provides:
Sec. 26 (1) Every bill passed by the Congress shall, embrace only one subject which
shall be expressed in the title thereof.
8 G.R. No. 114783, December 8, 1994.
9 Section 5(1), Article VI.
10 In this connection, we take judicial notice of the fact that since 1986 up to this time,
Congress has yet to pass a general reapportionment law.
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11 Section 1, Article II provides that "the Philippines is a democratic and republican
state. Sovereignty resides in the people and all government authority from them."
12 Sec. 5. . . .
(3) Each legislative district shall comprise, as far as practicable, contiguous, compact,
and adjacent territory. Each city with a population of at least two hundred fifty thousand,
or each province, shall have at least one representative.
13 As per the certificate issued by Administration Tomas Africa of the National Census
and Statistics Office, the population of Makati as of 1994 stood at 508,174; August 4,
1994, Senate Deliberations on House Bill No. 12240 (converting Makati into a highly
urbanized city), p. 15.
14 Sec. 3 provides: "Any province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fifty thousand shall be
entitled in the immediately following election to at least one Member or such number of
Members as it may be entitled to on the basis of the number of its inhabitants and
according to the standards set forth in paragraph (3), Section 5 of Article VI of the
Constitution. The number of Members apportioned to the province out of which such
new province was created or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission on
Elections but such adjustment shall not be made within one hundred, and twenty days
before the election."
2. SULTAN CAMID VS OFFICE OF THE PRESIDENT, GR 161414, JANUARY 17,

2005
G.R. No. 161414 January 17, 2005
SULTAN OSOP B. CAMID, petitioner,

vs.
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THE OFFICE OF THE PRESIDENT, DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, AUTONOMOUS REGION IN MUSLIM MINDANAO, DEPARTMENT
of FINANCE, DEPARTMENT of BUDGET AND MANAGEMENT, COMMISSION ON
AUDIT, and the CONGRESS OF THE PHILIPPINES (HOUSE of REPRESENTATIVES
AND SENATE), respondents.
DECISION
TINGA, J.: EN BANC
This Petition for Certiorari presents this Court with the prospect of our own Brigadoon1 —
the municipality of Andong, Lanao del Sur―which like its counterpart in filmdom, is a
town that is not supposed to exist yet is anyway insisted by some as actually alive and
thriving. Yet unlike in the movies, there is nothing mystical, ghostly or anything even
remotely charming about the purported existence of Andong. The creation of the putative
municipality was declared void ab initio by this Court four decades ago, but the present
petition insists that in spite of this insurmountable obstacle Andong thrives on, and
hence, its legal personality should be given judicial affirmation. We disagree.
The factual antecedents derive from the promulgation of our ruling in Pelaez v. Auditor
General2 in 1965. As discussed therein, then President Diosdado Macapagal issued
several Executive Orders3 creating thirty-three (33) municipalities in Mindanao. Among
them was Andong in Lanao del Sur which was created by virtue of Executive Order No.
107.4
These executive orders were issued after legislative bills for the creation of
municipalities involved in that case had failed to pass Congress. 5 President Diosdado
Macapagal justified the creation of these municipalities citing his powers under Section
68 of the Revised Administrative Code. Then Vice-President Emmanuel Pelaez filed a
special civil action for a writ of prohibition, alleging in main that the Executive Orders
were null and void, Section 68 having been repealed by Republic Act No. 2370, 6 and
said orders constituting an undue delegation of legislative power.7
After due deliberation, the Court unanimously held that the challenged Executive Orders
were null and void. A majority of five justices, led by the ponente, Justice (later Chief
Justice) Roberto Concepcion, ruled that Section 68 of the Revised Administrative Code
did not meet the well-settled requirements for a valid delegation of legislative power to
the executive branch,8 while three justices opined that the nullity of the issuances was
the consequence of the enactment of the 1935 Constitution, which reduced the power of
the Chief Executive over local governments.9 Pelaez was disposed in this wise:
WHEREFORE, the Executive Orders in question are declared null and void ab initio and
the respondent permanently restrained from passing in audit any expenditure of public
funds in implementation of said Executive Orders or any disbursement by the
municipalities above referred to. It is so ordered.10
Among the Executive Orders annulled was Executive Order No. 107 which created the
Municipality of Andong. Nevertheless, the core issue presented in the present petition is
the continued efficacy of the judicial annulment of the Municipality of Andong.
Petitioner Sultan Osop B. Camid (Camid) represents himself as a current resident of

Andong,11 suing as a private citizen and taxpayer whose locus standi "is of public and
paramount interest especially to the people of the Municipality of Andong, Province of
Lanao del Sur."12 He alleges that Andong "has metamorphosed into a full-blown
municipality with a complete set of officials appointed to handle essential services for the
municipality and its constituents,"13 even though he concedes that since 1968, no person
has been appointed, elected or qualified to serve any of the elective local government
positions of Andong.14 Nonetheless, the municipality of Andong has its own high school,
Bureau of Posts, a Department of Education, Culture and Sports office, and at least
seventeen (17) "barangay units" with their own respective chairmen. 15 From 1964 until
1972, according to Camid, the public officials of Andong "have been serving their
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constituents through the minimal means and resources with least (sic) honorarium and
recognition from the Office of the then former President Diosdado Macapagal." Since the
time of Martial Law in 1972, Andong has allegedly been getting by despite the absence
of public funds, with the "Interim Officials" serving their constituents "in their own little
ways and means."16
In support of his claim that Andong remains in existence, Camid presents to this Court
a Certification issued by the Office of the Community Environment and Natural
Resources (CENRO) of the Department of Environment and Natural Resources (DENR)
certifying the total land area of the Municipality of Andong, "created under Executive
Order No. 107 issued [last] October 1, 1964." 17 He also submits a Certification issued by
the Provincial Statistics Office of Marawi City concerning the population of Andong,
which is pegged at fourteen thousand fifty nine (14,059) strong. Camid also enumerates
a list of governmental agencies and private groups that allegedly recognize Andong, and
notes that other municipalities have recommended to the Speaker of the Regional
Legislative Assembly for the immediate implementation of the revival or re-establishment
of Andong.18
The petition assails a Certification dated 21 November 2003, issued by the Bureau of

Local Government Supervision of the Department of Interior and Local Government
(DILG).19 The Certification enumerates eighteen (18) municipalities certified as "existing,"
per DILG records. Notably, these eighteen (18) municipalities are among the thirty-three
(33), along with Andong, whose creations were voided by this Court in Pelaez. These
municipalities are Midaslip, Pitogo, Naga, and Bayog in Zamboanga del Sur; Siayan and
Pres. Manuel A. Roxas in Zamboanga del Norte; Magsaysay, Sta. Maria and New
Corella in Davao; Badiangan and Mina in Iloilo; Maguing in Lanao del Sur; Gloria in
Oriental Mindoro; Maasim in Sarangani; Kalilangan and Lantapan in Bukidnon; and
Maco in Compostela Valley.20
Camid imputes grave abuse of discretion on the part of the DILG "in not classifying
[Andong] as a regular existing municipality and in not including said municipality in its
records and official database as [an] existing regular municipality."21 He characterizes
such non-classification as unequal treatment to the detriment of Andong, especially in
light of the current recognition given to the eighteen (18) municipalities similarly annulled
by reason of Pelaez. As appropriate relief, Camid prays that the Court annul the
DILG Certification dated 21 November 2003; direct the DILG to classify Andong as a
"regular existing municipality;" all public respondents, to extend full recognition and
support to Andong; the Department of Finance and the Department of Budget and
Management, to immediately release the internal revenue allotments of Andong; and the
public respondents, particularly the DILG, to recognize the "Interim Local Officials" of
Andong.22
Moreover, Camid insists on the continuing validity of Executive Order No. 107. He
argues that Pelaez has already been modified by supervening events consisting of
subsequent laws and jurisprudence. Particularly cited is our Decision in Municipality of
San Narciso v. Hon. Mendez,23 wherein the Court affirmed the unique status of the
municipality of San Andres in Quezon as a "de facto municipal corporation."24 Similar to
Andong, the municipality of San Andres was created by way of executive order,
precisely the manner which the Court in Pelaez had declared as unconstitutional.
Moreover, San Narciso cited, as Camid does, Section 442(d) of the Local Government
Code of 1991 as basis for the current recognition of the impugned municipality. The
provision reads:
Section 442. Requisites for Creation. - xxx
(d) Municipalities existing as of the date of the effectivity of this Code shall continue to
exist and operate as such. Existing municipal districts organized pursuant to presidential
issuances or executive orders and which have their respective sets of elective municipal
officials holding office at the time of the effectivity of (the) Code shall henceforth be
considered as regular municipalities.25
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There are several reasons why the petition must be dismissed. These can be better
discerned upon examination of the proper scope and application of Section 442(d),
which does not sanction the recognition of just any municipality. This point shall be
further explained further on.
Notably, as pointed out by the public respondents, through the Office of the Solicitor
General (OSG), the case is not a fit subject for the special civil actions of certiorari and
mandamus, as it pertains to the de novo appreciation of factual questions. There is
indeed no way to confirm several of Camid’s astonishing factual allegations pertaining to
the purported continuing operation of Andong in the decades since it was annulled by
this Court. No trial court has had the opportunity to ascertain the validity of these factual
claims, the appreciation of which is beyond the function of this Court since it is not a trier
of facts.
The importance of proper factual ascertainment cannot be gainsaid, especially in light of

the legal principles governing the recognition of de facto municipal corporations. It has
been opined that municipal corporations may exist by prescription where it is shown that
the community has claimed and exercised corporate functions, with the knowledge and
acquiescence of the legislature, and without interruption or objection for period long
enough to afford title by prescription. 26 These municipal corporations have exercised
their powers for a long period without objection on the part of the government that
although no charter is in existence, it is presumed that they were duly incorporated in the
first place and that their charters had been lost. 27 They are especially common in
England, which, as well-worth noting, has existed as a state for over a thousand years.
The reason for the development of that rule in England is understandable, since that
country was settled long before the Roman conquest by nomadic Celtic tribes, which
could have hardly been expected to obtain a municipal charter in the absence of a
national legal authority.
In the United States, municipal corporations by prescription are less common, but it has
been held that when no charter or act of incorporation of a town can be found, it may be
shown to have claimed and exercised the powers of a town with the knowledge and
assent of the legislature, and without objection or interruption for so long a period as to
furnish evidence of a prescriptive right.28
What is clearly essential is a factual demonstration of the continuous exercise by the

municipal corporation of its corporate powers, as well as the acquiescence thereto by
the other instrumentalities of the state. Camid does not have the opportunity to make an
initial factual demonstration of those circumstances before this Court. Indeed, the factual
deficiencies aside, Camid’s plaint should have undergone the usual administrative
gauntlet and, once that was done, should have been filed first with the Court of Appeals,
which at least would have had the power to make the necessary factual determinations.
Camid’s seeming ignorance of the principles of exhaustion of administrative remedies
and hierarchy of courts, as well as the concomitant prematurity of the present petition,
cannot be countenanced.
It is also difficult to capture the sense and viability of Camid’s present action. The
assailed issuance is the Certification issued by the DILG. But such Certification does not
pretend to bear the authority to create or revalidate a municipality. Certainly, the
annulment of the Certification will really do nothing to serve Camid’s ultimate cause- the
recognition of Andong. Neither does the Certification even expressly refute the claim that
Andong still exists, as there is nothing in the document that comments on the present
status of Andong. Perhaps the Certification is assailed before this Court if only to present
an actual issuance, rather than a long-standing habit or pattern of action that can be
annulled through the special civil action of certiorari. Still, the relation of
the Certification to Camid’s central argument is forlornly strained.
These disquisitions aside, the central issue remains whether a municipality whose
creation by executive fiat was previously voided by this Court may attain recognition in
the absence of any curative or reimplementing statute. Apparently, the question has
never been decided before, San Narciso and its kindred cases pertaining as they did to
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municipalities whose bases of creation were dubious yet were never judicially nullified.
The effect of Section 442(d) of the Local Government Code on municipalities such as
Andong warrants explanation. Besides, the residents of Andong who belabor under the
impression that their town still exists, much less those who may comport themselves as
the municipality’s "Interim Government," would be well served by a rude awakening.
The Court can employ a simplistic approach in resolving the substantive aspect of the
petition, merely by pointing out that the Municipality of Andong never
existed.29 Executive Order No. 107, which established Andong, was declared "null and
void ab initio" in 1965 by this Court in Pelaez, along with thirty-three (33) other executive
orders. The phrase "ab initio" means "from the beginning," 30 "at first,"31 "from the
inception."32 Pelaez was never reversed by this Court but rather it was expressly
affirmed in the cases of Municipality of San Joaquin v. Siva,33 Municipality of Malabang
v. Benito,34 and Municipality of Kapalong v. Moya.35 No subsequent ruling by this Court
declared Pelaez as overturned or inoperative. No subsequent legislation has been
passed since 1965 creating a Municipality of Andong. Given these facts, there is hardly
any reason to elaborate why Andong does not exist as a duly constituted municipality.
This ratiocination does not admit to patent legal errors and has the additional virtue of
blessed austerity. Still, its sweeping adoption may not be advisedly appropriate in light of
Section 442(d) of the Local Government Code and our ruling in Municipality of San
Narciso, both of which admit to the possibility of de facto municipal corporations.
To understand the applicability of Municipality of San Narciso and Section 442(b) of the

Local Government Code to the situation of Andong, it is necessary again to consider the
ramifications of our decision in Pelaez.
The eminent legal doctrine enunciated in Pelaez was that the President was then, and
still is, not empowered to create municipalities through executive issuances. The Court
therein recognized "that the President has, for many years, issued executive orders
creating municipal corporations, and that the same have been organized and in actual
operation . . . ."36 However, the Court ultimately nullified only those thirty-three (33)
municipalities, including Andong, created during the period from 4 September to 29
October 1964 whose existence petitioner Vice-President Pelaez had specifically assailed
before this Court. No pronouncement was made as to the other municipalities which had
been previously created by the President in the exercise of power the Court deemed
unlawful.
Two years after Pelaez was decided, the issue again came to fore in Municipality of San
Joaquin v. Siva.37 The Municipality of Lawigan was created by virtue of Executive Order
No. 436 in 1961. Lawigan was not one of the municipalities ordered annulled in Pelaez.
A petition for prohibition was filed contesting the legality of the executive order, again on
the ground that Section 68 of the Revised Administrative Code was unconstitutional. The
trial court dismissed the petition, but the Supreme Court reversed the ruling and entered
a new decision declaring Executive Order No. 436 void ab initio. The Court reasoned
without elaboration that the issue had already been squarely taken up and settled
in Pelaez which agreed with the argument posed by the challengers to Lawigan’s
validity.38
In the 1969 case of Municipality of Malabang v. Benito,39 what was challenged is the

validity of the constitution of the Municipality of Balabagan in Lanao del Sur, also created
by an executive order,40 and which, similar to Lawigan, was not one of the municipalities
annulled in Pelaez. This time, the officials of Balabagan invoked de facto status as a
municipal corporation in order to dissuade the Court from nullifying action. They alleged
that its status as a de facto corporation cannot be collaterally attacked but should be
inquired into directly in an action for quo warranto at the instance of the State, and not by
a private individual as it was in that case. In response, the Court conceded that an
inquiry into the legal existence of a municipality is reserved to the State in a proceeding
for quo warranto, but only if the municipal corporation is a de facto corporation.41
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Ultimately, the Court refused to acknowledge Balabagan as a de facto corporation, even
though it had been organized prior to the Court’s decision in Pelaez. The Court declared
void the executive order creating Balabagan and restrained its municipal officials from
performing their official duties and functions.42 It cited conflicting American authorities on
whether a de facto corporation can exist where the statute or charter creating it is
unconstitutional.43 But the Court’s final conclusion was unequivocal that Balabagan was
not a de facto corporation.
In the cases where a de facto municipal corporation was recognized as such despite the
fact that the statute creating it was later invalidated, the decisions could fairly be made to
rest on the consideration that there was some other valid law giving corporate vitality to
the organization. Hence, in the case at bar, the mere fact that Balabagan was organized
at a time when the statute had not been invalidated cannot conceivably make it a de
facto corporation, as, independently of the Administrative Code provision in question,
there is no other valid statute to give color of authority to its creation.44
The Court did clarify in Malabang that the previous acts done by the municipality in the
exercise of its corporate powers were not necessarily a nullity. 45 Camid devotes several
pages of his petition in citing this point,46 yet the relevance of the citation is unclear
considering that Camid does not assert the validity of any corporate act of Andong prior
to its judicial dissolution. Notwithstanding, the Court in Malabang retained an emphatic
attitude as to the unconstitutionality of the power of the President to create municipal
corporations by way of presidential promulgations, as authorized under Section 68 of the
Revised Administrative Code.
This principle was most recently affirmed in 1988, in Municipality of Kapalong v.

Moya.47 The municipality of Santo Tomas, created by President Carlos P. Garcia, filed a
complaint against another municipality, who challenged Santo Tomas’s legal personality
to institute suit. Again, Santo Tomas had not been expressly nullified by prior judicial
action, yet the Court refused to recognize its legal existence. The blunt but simple ruling:
"Now then, as ruled in the Pelaez case supra, the President has no power to create a
municipality. Since [Santo Tomas] has no legal personality, it can not be a party to any
civil action…."48
Nevertheless, when the Court decided Municipality of San Narciso49 in 1995, it indicated

a shift in the jurisprudential treatment of municipalities created through presidential
issuances. The questioned municipality of San Andres, Quezon was created on 20
August 1959 by Executive Order No. 353 issued by President Carlos P. Garcia.
Executive Order No. 353 was not one of the thirty-three issuances annulled by Pelaez in
1965. The legal status of the Municipality of San Andres was first challenged only in
1989, through a petition for quo warranto filed with the Regional Trial Court of Gumaca,
Quezon, which did cite Pelaez as authority.50 The RTC dismissed the petition for lack of
cause of action, and the petitioners therein elevated the matter to this Court.
In dismissing the petition, the Court delved in the merits of the petition, if only to resolve
further doubt on the legal status of San Andres. It noted a circumstance which is not
present in the case at bar—that San Andres was in existence for nearly thirty (30) years
before its legality was challenged. The Court did not declare the executive order creating
San Andres null and void. Still, acting on the premise that the said executive order was a
complete nullity, the Court noted "peculiar circumstances" that led to the conclusion that
San Andres had attained the unique status of a "de facto municipal corporation."51 It
noted that Pelaez limited its nullificatory effect only to those executive orders specifically
challenged therein, despite the fact that the Court then could have very well extended
the decision to invalidate San Andres as well. 52 This statement squarely contradicts
Camid’s reading of San Narciso that the creation of San Andres, just like Andong, had
been declared a complete nullity on the same ground of unconstitutional delegation of
legislative power found in Pelaez.53
The Court also considered the applicability of Section 442(d) 54 of the Local Government
Code of 1991. It clarified the implication of the provision as follows:
WEEK 3
Equally significant is Section 442(d) of the Local Government Code to the effect that
municipal districts "organized pursuant to presidential issuances or executive orders and
which have their respective sets of elective municipal officials holding office at the time
of the effectivity of (the) Code shall henceforth be considered as regular municipalities."
No pretension of unconstitutionality per se of Section 442(d) of the Local Government
Code is preferred. It is doubtful whether such a pretext, even if made, would
succeed. The power to create political subdivisions is a function of the legislature.
Congress did just that when it has incorporated Section 442(d) in the Code.
Curative laws, which in essence are retrospective, and aimed at giving "validity to acts
done that would have been invalid under existing laws, as if existing laws have been
complied with," are validly accepted in this jurisdiction, subject to the usual qualification
against impairment of vested rights. (Emphasis supplied)55
The holding in San Narciso was subsequently affirmed in Municipality of Candijay v.

Court of Appeals56 and Municipality of Jimenez v. Baz57 In Candijay, the juridical
personality of the Municipality of Alicia, created in a 1949 executive order, was attacked
only beginning in 1984. Pelaez was again invoked in support of the challenge, but the
Court refused to invalidate the municipality, citing San Narciso at length. The Court
noted that the situation of the Municipality of Alicia was strikingly similar to that in San
Narciso; hence, the town should likewise "benefit from the effects of Section 442(d) of
the Local Government Code, and should [be] considered as a regular, de
jure municipality." 58
The valid existence of Municipality of Sinacaban, created in a 1949 executive order, was
among the issues raised in Jimenez. The Court, through Justice Mendoza, provided an
expert summation of the evolution of the rule.
The principal basis for the view that Sinacaban was not validly created as a municipal
corporation is the ruling in Pelaez v. Auditor General that the creation of municipal
corporations is essentially a legislative matter and therefore the President was without
power to create by executive order the Municipality of Sinacaban. The ruling in this case
has been reiterated in a number of cases later decided. However, we have since held
that where a municipality created as such by executive order is later impliedly
recognized and its acts are accorded legal validity, its creation can no longer be
questioned. In Municipality of San Narciso, Quezon v. Mendez, Sr., this Court
considered the following factors as having validated the creation of a municipal
corporation, which, like the Municipality of Sinacaban, was created by executive order of
the President before the ruling in Pelaez v. Auditor General: (1) the fact that for nearly 30
years the validity of the creation of the municipality had never been challenged; (2) the
fact that following the ruling in Pelaez no quo warranto suit was filed to question the
validity of the executive order creating such municipality; and (3) the fact that the
municipality was later classified as a fifth class municipality, organized as part of a
municipal circuit court and considered part of a legislative district in the Constitution
apportioning the seats in the House of Representatives. Above all, it was held that
whatever doubt there might be as to the de jure character of the municipality must be
deemed to have been put to rest by the Local Government Code of 1991 (R. A. No.
7160), §442(d) of which provides that "municipal districts organized pursuant to
presidential issuances or executive orders and which have their respective sets of
elective officials holding office at the time of the effectivity of this Code shall henceforth
be considered as regular municipalities."
Here, the same factors are present so as to confer on Sinacaban the status of at least a
de facto municipal corporation in the sense that its legal existence has been recognized
and acquiesced publicly and officially. Sinacaban had been in existence for sixteen
years when Pelaez v. Auditor General was decided on December 24, 1965. Yet the
validity of E.O. No. 258 creating it had never been questioned. Created in 1949, it was
only 40 years later that its existence was questioned and only because it had laid claim
to an area that apparently is desired for its revenue. This fact must be underscored
because under Rule 66, §16 of the Rules of Court, a quo warranto suit against a
corporation for forfeiture of its charter must be commenced within five (5) years from the
time the act complained of was done or committed. On the contrary, the State and even
the Municipality of Jimenez itself have recognized Sinacaban's corporate existence.
WEEK 3
Under Administrative Order No. 33 dated June 13, 1978 of this Court, as reiterated by
§31 of the Judiciary Reorganization Act of 1980 (B. P. Blg. 129), Sinacaban is
constituted part of a municipal circuit for purposes of the establishment of Municipal
Circuit Trial Courts in the country. For its part, Jimenez had earlier recognized
Sinacaban in 1950 by entering into an agreement with it regarding their common
boundary. The agreement was embodied in Resolution No. 77 of the Provincial Board of
Misamis Occidental.
Indeed Sinacaban has attained de jure status by virtue of the Ordinance appended to

the 1987 Constitution, apportioning legislative districts throughout the country, which
considered Sinacaban part of the Second District of Misamis Occidental. Moreover,
following the ruling in Municipality of San Narciso, Quezon v. Mendez, Sr., 442(d) of the
Local Government Code of 1991 must be deemed to have cured any defect in the
creation of Sinacaban….591awphi1.nét
From this survey of relevant jurisprudence, we can gather the applicable

rules. Pelaez and its offspring cases ruled that the President has no power to create
municipalities, yet limited its nullificatory effects to the particular municipalities
challenged in actual cases before this Court. However, with the promulgation of the
Local Government Code in 1991, the legal cloud was lifted over the municipalities
similarly created by executive order but not judicially annulled. The de facto status of
such municipalities as San Andres, Alicia and Sinacaban was recognized by this Court,
and Section 442(b) of the Local Government Code deemed curative whatever legal
defects to title these municipalities had labored under.
Is Andong similarly entitled to recognition as a de facto municipal corporation? It is not.

There are eminent differences between Andong and municipalities such as San Andres,
Alicia and Sinacaban. Most prominent is the fact that the executive order creating
Andong was expressly annulled by order of this Court in 1965. If we were to affirm
Andong’s de facto status by reason of its alleged continued existence despite its
nullification, we would in effect be condoning defiance of a valid order of this
Court. Court decisions cannot obviously lose their efficacy due to the sheer defiance by
the parties aggrieved.
It bears noting that based on Camid’s own admissions, Andong does not meet the
requisites set forth by Section 442(d) of the Local Government Code. Section 442(d)
requires that in order that the municipality created by executive order may receive
recognition, they must "have their respective set of elective municipal officials holding
office at the time of the effectivity of [the Local Government] Code." Camid admits that
Andong has never elected its municipal officers at all. 60 This incapacity ties in with the
fact that Andong was judicially annulled in 1965. Out of obeisance to our ruling
in Pelaez, the national government ceased to recognize the existence of Andong,
depriving it of its share of the public funds, and refusing to conduct municipal elections
for the void municipality.
The failure to appropriate funds for Andong and the absence of elections in the
municipality in the last four decades are eloquent indicia of the non-recognition by the
State of the existence of the town. The certifications relied upon by Camid, issued by the
DENR-CENRO and the National Statistics Office, can hardly serve the purpose of
attesting to Andong’s legal efficacy. In fact, both these certifications qualify that they
were issued upon the request of Camid, "to support the restoration or re-operation of the
Municipality of Andong, Lanao del Sur,"61 thus obviously conceding that the municipality
is at present inoperative.
We may likewise pay attention to the Ordinance appended to the 1987 Constitution,
which had also been relied upon in Jimenez and San Narciso. This Ordinance, which
apportioned the seats of the House of Representatives to the different legislative districts
in the Philippines, enumerates the various municipalities that are encompassed by the
various legislative districts. Andong is not listed therein as among the municipalities of
Lanao del Sur, or of any other province for that matter. 62 On the other hand, the
WEEK 3
municipalities of San Andres, Alicia and Sinacaban are mentioned in the Ordinance as
part of Quezon,63 Bohol,64 and Misamis Occidental65 respectively.
How about the eighteen (18) municipalities similarly nullified in Pelaez but certified as
existing in the DILG Certification presented by Camid? The petition fails to mention that
subsequent to the ruling in Pelaez, legislation was enacted to reconstitute these
municipalities.66 It is thus not surprising that the DILG certified the existence of these
eighteen (18) municipalities, or that these towns are among the municipalities
enumerated in the Ordinance appended to the Constitution. Andong has not been
similarly reestablished through statute. Clearly then, the fact that there are valid organic
statutes passed by legislation recreating these eighteen (18) municipalities is sufficient
legal basis to accord a different legal treatment to Andong as against these eighteen
(18) other municipalities.
We thus assert the proper purview to Section 442(d) of the Local Government Code—
that it does not serve to affirm or reconstitute the judicially dissolved municipalities such
as Andong, which had been previously created by presidential issuances or executive
orders. The provision affirms the legal personalities only of those municipalities such as
San Narciso, Alicia, and Sinacaban, which may have been created using the same infirm
legal basis, yet were fortunate enough not to have been judicially annulled. On the other
hand, the municipalities judicially dissolved in cases such as Pelaez, San
Joaquin, and Malabang, remain inexistent, unless recreated through specific legislative
enactments, as done with the eighteen (18) municipalities certified by the DILG. Those
municipalities derive their legal personality not from the presidential issuances or
executive orders which originally created them or from Section 442(d), but from the
respective legislative statutes which were enacted to revive them.
And what now of Andong and its residents? Certainly, neither Pelaez or this decision has
obliterated Andong into a hole on the ground. The legal effect of the nullification of
Andong in Pelaez was to revert the constituent barrios of the voided town back into their
original municipalities, namely the municipalities of Lumbatan, Butig and
Tubaran.67 These three municipalities subsist to this day as part of Lanao del Sur, 68 and
presumably continue to exercise corporate powers over the barrios which once belonged
to Andong.
If there is truly a strong impulse calling for the reconstitution of Andong, the solution is
through the legislature and not judicial confirmation of void title. If indeed the residents of
Andong have, all these years, been governed not by their proper municipal governments
but by a ragtag "Interim Government," then an expedient political and legislative solution
is perhaps necessary. Yet we can hardly sanction the retention of Andong’s legal
personality solely on the basis of collective amnesia that may have allowed Andong to
somehow pretend itself into existence despite its judicial dissolution. Maybe those who
insist Andong still exists prefer to remain unperturbed in their blissful ignorance, like the
inhabitants of the cave in Plato’s famed allegory. But the time has come for the light to
seep in, and for the petitioner and like-minded persons to awaken to legal reality.
WHEREFORE, the Petition is DISMISSED for lack of merit. Costs against

petitioner.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,

Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario
and Garcia, JJ., concur.
Footnotes
1
A 1954 film based on the well-known eponymous Broadway musical by Alan Jay
Lerner and Frederick Loewe. The plot pertains to a magical Scottish town touted to
appear once every hundred years on some otherworldly plain according to legend.
WEEK 3
2
122 Phil. 965 (1965).
3
Executive Orders Nos. 93 to 121, 124 and 126 to 129. Pelaez v. Auditor
General, supra note 1 at 969.
4
Pelaez v. Auditor General, supra note 1 at 970.
6
The Barrio Charter Act.
8
The particular flaws included the failure to enunciate any policy to be carried out or
implemented by the President, the absence of standards sufficiently precise to avoid the
evil effects. Id. at 975. Moreover, the creation of municipalities was declared to be a
function eminently legislative in character, and not administrative. Id. at 977.
23
G.R. No. 103702, 6 December 1994, 239 SCRA 11.
26
R. Martin, Public Corporations (1983 ed.) at 18, citing Cooley’s Mun. Corp. 52.
29
Such an approach was employed by the Court in Municipality of Kapalong v.
Moya, infra.
33
125 Phil. 1004 (1967).
34
137 Phil. 358 (1969).
35
G.R. No. L-41322, 29 September 1988, 166 SCRA 70.
Particularly, Balabagan was created by Executive Order No. 386 by President Carlos
40
P. Garcia. Id. at 360.
Particularly citing the ruling in Brandenstein v. Hoke, 101 Cal. 131, 35 P. 562 (1894)
43
and Atchison T. & S.F.R.R. v. Board of Commissioners, 58 Kan. 19, 48 P. 583 (1897) on
one hand, and Lang v. City of Bayonne, 74 N.J.L. 455, 68 A. 90 (1907); St. Louis v.
Shields, 62 Mo. 247 (1876); School District No. 25 v. State, 29 Kan. 57 (1882) on the
other hand. Id. at 362.
45
Citing primarily the opinion of U.S. Supreme Court Chief Justice Charles Evans
Hughes in Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374
(1940), which noted in part: "The actual existence of a statute, prior to such a
determination [of invalidity], is an operative fact and may have consequences which
cannot justly be ignored. The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects—with respect to particular relations, individual and
corporate, and particular conduct, private and official. Questions of rights claimed to
have become vested, of status, of prior determinations deemed to have finality and
acted upon accordingly, of public policy in the light of the nature of both the statute and
of its previous application, demand examination." Municipality of Malabang v.
Benito, supra note 34, at 364. See also J. Gutierrez, concurring and dissenting, Cruz v.
Ponce Enrile, G.R. No. L-75983, 15 April 1988, 160 SCRA 700, 713-714.
51
"Created in 1959 by virtue of Executive Order No. 353, the Municipality of San Andres
had been in existence for more than six years when, on 24 December 1965, Pelaez v.
Auditor General was promulgated. The ruling could have sounded the call for a similar
declaration of the unconstitutionality of Executive Order No. 353 but it was not to be the
case. On the contrary, certain governmental acts all pointed to the State's recognition of
the continued existence of the Municipality of San Andres. Thus, after more than five
years as a municipal district, Executive Order No. 174 classified the Municipality of San
Andres as a fifth class municipality after having surpassed the income requirement laid
out in Republic Act No. 1515. Section 31 of Batas Pambansa Blg. 129, otherwise known
as the Judiciary Reorganization Act of 1980, constituted as municipal circuits, in the
establishment of Municipal Circuit Trial Courts in the country, certain municipalities that
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comprised the municipal circuits organized under Administrative Order No. 33, dated 13
June 1978, issued by this Court pursuant to Presidential Decree No. 537. Under this
administrative order, the Municipality of San Andres had been covered by the 10th
Municipal Circuit Court of San Francisco-San Andres for the province of Quezon.
At the present time, all doubts on the de jure standing of the municipality must be
dispelled. Under the Ordinance (adopted on 15 October 1986) apportioning the seats of
the House of Representatives, appended to the 1987 Constitution, the Municipality of
San Andres has been considered to be one of the twelve (12) municipalities composing
the Third District of the province of Quezon." Id. at 20.
55
Municipality of San Narciso v. Mendez, supra note 23, at 21.
321 Phil. 922 (1995).

56
57
333 Phil. 1 (1996).
Municipality of Candijay v. Court of Appeals, supra note 56 at 930.

58
62
Vide Appendix A to I. Cruz, Constitutional Law, 1998 ed., at 452, which replicates the
1987 Constitution and the appended Ordinance thereto.
66
The following are the eighteen (18) municipalities referred to in the DILG Certification,
and their respective organic statutes, all of which were enacted after Pelaez was
decided in 1965:
1. Midsalip, Zamboanga del Sur – Republic Act No. 4871 entitled AN ACT CREATING
THE MUNICIPALITY OF MIDSALIP IN THE PROVINCE OF ZAMBOANGA DEL SUR
enacted without Executive approval on May 8, 1967.
2. Pitogo, Zamboanga del Sur – Republic Act No. 6490 entitled AN ACT CREATING
THE MUNICIPALITY OF PITOGO IN THE PROVINCE OF ZAMBOANGA DEL SUR
approved on June 17, 1972.
3. Naga, Zamboanga del Sur Republic Act No. 4875 entitled AN ACT CREATING THE
MUNICIPALITY OF NAGA IN THE PROVINCE OF ZAMBOANGA DEL SUR approved
on May 18, 1967.
4. Magsaysay, Davao – Republic Act No. 4976 entitled AN ACT CREATING THE
MUNICIPALITY OF MAGSAYSAY IN THE PROVINCE OF DAVAO enacted without
Executive approval on June 17, 1967.
5. Sta. Maria, Davao – Republic Act No. 4743 entitled AN ACT CREATING A NEW
MUNICIPALITY IN THE PROVINCE OF DAVAO TO BE KNOWN AS THE
MUNICIPALITY OF SANTA MARIA approved on June 18, 1966.
6. Badiangan, Iloilo - Republic Act No. 5006 entitled AN ACT CREATING THE
MUNICIPALITY OF BADIANGAN IN THE PROVINCE OF ILOILO enacted without
Executive approval on June 17, 1967.
7. Mina, Iloilo – Republic Act No. 5442 entitled AN ACT CREATING THE
MUNICIPALITY OF MINA IN THE PROVINCE OF ILOILO enacted without Executive
approval on September 9, 1968.
8. Maguing, Lanao del Sur – Presidential Decree 1134 entitled CREATING THE
MUNICIPALITY OF MAGUING IN THE PROVINCE OF LANAO DEL SUR by then Pres.
Ferdinand E. Marcos on May 4, 1977.
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9. Bayog, Zamboanga del Sur - Republic Act No. 4872 entitled AN ACT CREATING
THE MUNICIPALITY OF BAYOG IN THE PROVINCE OF ZAMBOANGA DEL SUR
approved on May 8, 1967.
10. Gloria, Oriental Mindoro – Republic Act No. 4651 entitled AN ACT CREATING THE
MUNICIPALITY OF GLORIA IN THE PROVINCE OF ORIENTAL MINDORO approved
on June 9, 1966.
11. Maasim, Sarangani – Republic Act No. 5866 entitled AN ACT CREATING THE
MUNICIPALITY OF MAASIM IN THE PROVINCE OF SOUTH COTABATO enacted
without Executive approval on June 21, 1969. However, said municipality was
transferred to the Province of Sarangani by virtue of Section 1 of Republic Act No. 7228
enacted on March 16, 1992.
12. Siayan, Zamboanga del Norte – Republic Act No. 2553 entitled AN ACT CREATING
THE BARRIO OF SIAYAN IN THE MUNICIPALITY OF SINDANGAN, PROVINCE OF
ZAMBOANGA DEL NORTE enacted without Executive approval on June 21, 1959.
13. Pres. Manuel A Roxas, Zamboanga del Norte – Republic Act No. 5077 entitled AN
ACT CREATING THE MUNICIPALITY OF PRESIDENT MANUEL A. ROXAS IN THE
PROVINCE OF ZAMBOANGA DEL NORTE enacted without executive approval on
June 17, 1967.
14. Kalilangan, Bukidnon – Republic Act No. 4788, as amended entitled, AN ACT
CREATING THE MUNICIPALITY OF KALILANGAN IN THE PROVINCE OF BUKIDNON
approved on June 18, 1966.
15. Lantapan, Bukidnon – Republic Act No. 4787 entitled AN ACT CREATING THE
MUNICIPALITY OF LANTAPAN IN THE PROVINCE OF BUKIDNON approved on June
18, 1966.
16. Tampakan, Cotabato – Republic Act No. 5661 entitled AN ACT CREATING THE
MUNICIPALITY OF TAMPAKAN IN THE PROVINCE OF SOUTH COTABATO approved
on June 21, 1969.
17. Maco, Compostela Valley – Republic Act No. 4975 entitled AN ACT CREATING THE
MUNICIPALITY OF MACO IN THE PROVINCE OF DAVAO which was enacted without
Executive approval on June 17, 1967. Said municipality was transferred to the province
of Compostela Valley by virtue of Section 1, Republic Act No. 8470 which was approved
on January 30, 1998.
18. New Corella, Davao – Republic Act No. 4747 entitled AN ACT CREATING THE
MUNICIPALITY OF NEW CORELLA, PROVINCE OF DAVAO which took effect upon its
approval on June 18, 1966.
67
See Executive Order No. 107 (1964).
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3. MUNICIPALITY OF JIMENEZ VS BAZ JR., 265 SCRA 182, 1996
G.R. No. 105746 December 2, 1996
MUNICIPALITY OF JIMENEZ, through its MAYOR ELEUTERIO A. QUIMBO, VICE-

MAYOR ROBINSON B. LOMO, COUNCILORS TEOFILO GALORIO, CASIANO
ADORABLE, MARIO APAO, ANTONIO BIENES, VEDE SULLANO, MARIETO TAN,
SR., HERMINIO SERINO, BENJAMIN DANO, and CRISPULO MUNAR, and
ELEUTERIO A. QUIMBO, ROBINSON B. LOMO, TEOFILO GALORIO, CASIANO
ADORABLE, MARIO APAO, ANTONIO BIENES, VEDE SULLANO, MARIETO TAN,
SR., HERMINIO SERINO, BENJAMIN DANO, and CRISPULO MUNAR, in their
private capacities as taxpayer in the Province of Misamis Occidental and in the
Municipality of Jimenez, Misamis Occidental, and BENJAMIN C. GALINDO and
BENHUR B. BAUTISTA, in their private capacities as taxpayers in the Province of
Misamis Occidental and the Municipality of Jimenez, Misamis
Occidental, petitioners,
vs.
HON. VICENTE T. BAZ, JR., Presiding Judge, REGIONAL TRIAL COURT, BRANCH
14, 10th JUDICIAL REGION, OROQUIETA CITY, and MUNICIPALITY OF
SINACABAN through its MAYOR EUFRACIO D. LOOD, VICE-MAYOR BASILIO M.
BANAAG, COUNCILORS CONCEPCION E. LAGA-AC, MIGUEL F. ABCEDE,
JUANITO B. TIU, CLAUDIO T. REGIL, ANICETO S. MEJAREZ NAZIANCINO PAYE,
JOSE P. BANQUE, NUMERIANO B. MARIQUIT, and FEDERICO QUINIMON, and
THE PROVINCE OF MISAMIS OCCIDENTAL through the PROVINCIAL BOARD OF
MISAMIS OCCIDENTAL and its members, VICE-GOVERNOR FLORENCIO L.
GARCIA, BOARD MEMBERS MARIVIC S. CHIONG, PACITA M. YAP, ALEGRIA V.
CARINO, JULIO L. TIU, LEONARDO R. REGALADO II, CONSTANCIO C. BALAIS,
and ERNESTO P. IRA, and THE COMMISSION ON AUDIT, through its Chairman,
HON. EUFEMIO DOMINGO, and THE DEPARTMENT OF LOCAL GOVERNMENT
through its Secretary, HON. LUIS SANTOS (now HON. CESAR SARINO), and THE
DEPARTMENT OF BUDGET AND MANAGEMENT, through its Secretary, HON.
GUILLERMO CARAGUE (now HON. SALVADOR ENRIQUEZ), and The Hon.
CATALINO MACARAIG (now HON. FRANKLIN DRILON), EXECUTIVE SECRETARY
OFFICE OF THE PRESIDENT, respondents.
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MENDOZA, J.: EN BANC
This is a petition for review of the decision dated March 4, 1992 of the Regional Trial
Court, Branch 14 of Oroquieta City, 1 affirming the legal existence of the Municipality of
Sinacaban in Misamis Occidental and ordering the relocation of its boundary for the
purpose of determining whether certain areas claimed by it belong to it.
The antecedent facts are as follows:
The Municipality of Sinacaban was created by Executive Order No. 258 of then
President Elpidio Quirino, pursuant to §68 of the Revised Administrative Code of 1917.
The full text of the Order reads:
EXECUTIVE ORDER NO. 258
CREATING THE MUNICIPALITY OF SINACABAN,

IN THE PROVINCE OF MISAMIS OCCIDENTAL
Upon the recommendation of the Secretary of the Interior, and pursuant to the provisions
of Section 68 of the Revised Administrative Code, there is hereby created, in the
Province of Misamis Occidental, a municipality to be known as the municipality of
Sinacaban, which shall consist of the southern portion of the municipality of Jimenez,
Misamis Occidental, more particularly described and bounded as follows:
On the north by a line starting from point 1, the center of the lighthouse on the Tabo-o
point S. 84° 30'W., 7,250 meters to point 2 which is on the bank of Palilan River branch;
thence following Palilan River branch 2,400 meters southwesterly to point 3, thence a
straight line S 87° 00' W, 22,550 meters to point 4, where this intersects the Misamis
Occidental-Zamboanga boundary; on the west, by the present Misamis Occidental-
Zamboanga boundary; and on the south by the present Jimenez-Tudela boundary; and
on the east, by the limits of the municipal waters which the municipality of Sinacaban
shall have pursuant to section 2321 of the Revised Administrative Code, (Description
based on data shown in Enlarged Map of Poblacion of Jimenez, Scale 1:8:000).
The municipality of Sinacaban contains the barrios of Sinacaban, which shall be the seat
of the municipal government, Sinonoc, Libertad, the southern portion of the barrio of
Macabayao, and the sitios of Tipan, Katipunan, Estrella, Flores, Senior, Adorable, San
Isidro, Cagayanon, Kamanse, Kulupan and Libertad Alto.
The municipality of Jimenez shall have its present territory, minus the portion thereof
included in the municipality of Sinacaban.
The municipality of Sinacaban shall begin to exist upon the appointment and
qualification of the mayor, vice-mayor, and a majority of the councilors thereof. The new
municipality shall, however, assume payment of a proportionate share of the loan of the
municipality of Jimenez with the Rehabilitation Finance Corporation as may be
outstanding on the date of its organization, the proportion of such payment to be
determined by the Department of Finance.
Done in the City of Manila, this 30th day of August, in the year of Our Lord, nineteen
hundred and forty-nine, and of the Independence of the Philippines, the fourth.
(SGD.) ELPIDIO QUIRINO

President of the Philippines
By the President:
(SGD.) TEODORO EVANGELISTA

Executive Secretary
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By virtue of Municipal Council Resolution No 171, 2 dated November 22, 1988,
Sinacaban laid claim to a portion of Barrio Tabo-o and to Barrios Macabayao, Adorable,
Sinara Baja, and Sinara Alto,3 based on the technical description in E.O. No. 258. The
claim was filed with the Provincial Board of Misamis Occidental against the Municipality
of Jimenez.
In its answer, the Municipality of Jimenez, while conceding that under E.O. No. 258 the
disputed area is part of Sinacaban, nonetheless asserted jurisdiction on the basis of an
agreement it had with the Municipality of Sinacaban. This agreement was approved by
the Provincial Board of Misamis Occidental, in its Resolution No. 77, dated February 18,
1950, which fixed the common boundary of Sinacaban and Jimenez as follows: 4
From a point at Cagayanon Beach follow Macabayao Road until it intersects Tabangag
Creek at the back of the Macabayao Elementary School. Follow the Tabangag Creek
until it intersect the Macabayao River at upper Adorable. Follow the Macabayao River
such that the barrio of Macabayao, Sitio Adorable and site will be a part of Jimenez
down and the sitios of San Vicente, Donan, Estrella, Mapula will be a part of Sinacaban.
(Emphasis added)
In its decision dated October 11, 1989, 5 the Provincial Board declared the disputed area
to be part of Sinacaban. It held that the previous resolution approving the agreement
between the municipalities was void because the Board had no power to alter the
boundaries of Sinacaban as fixed in E.O. No. 258, that power being vested in Congress
pursuant to the Constitution and the Local Government Code of 1983 (B.P. Blg. 337),
§134. 6 The Provincial Board denied in its Resolution No. 13-90 dated January 30, 1990
the motion of Jimenez seeking reconsideration. 7
On March 20, 1990, Jimenez filed a petition for certiorari, prohibition, and mandamus in

the Regional Trial Court of Oroquieta City, Branch 14. The suit was filed against
Sinacaban, the Province of Misamis Occidental and its Provincial Board, the
Commission on Audit, the Departments of Local Government, Budget and Management,
and the Executive Secretary. Jimenez alleged that, in accordance with the decision
in Pelaez v. Auditor General, 8 the power to create municipalities is essentially legislative
and consequently Sinacaban, which was created by an executive order, had no legal
personality and no right to assert a territorial claim vis-a-vis Jimenez, of which it remains
part. Jimenez prayed that Sinacaban be enjoined from assuming control and supervision
over the disputed barrios; that the Provincial Board be enjoined from assuming
jurisdiction over the claim of Sinacaban; that E.O. No. 258 be declared null and void; that
the decision dated October 11, 1989 and Resolution No. 13-90 of the Provincial Board
be set aside for having been rendered without jurisdiction; that the Commission on Audit
be enjoined from passing in audit any expenditure of public funds by Sinacaban; that the
Department of Budget and Management be enjoined from allotting public funds to
Sinacaban; and that the Executive Secretary be enjoined from exercising control and
supervision over said municipality.
During pre-trial, the parties agreed to limit the issues to the following:
A. Whether the Municipality of Sinacaban is a legal juridical entity, duly created in

accordance with law;
B. If not, whether it is a de facto juridical entity;
C. Whether the validity of the existence of the Municipality can be properly questioned in
this action on certiorari;
D. Whether the Municipality of Jimenez which had recognized the existence of the
municipality for more than 40 years is estopped to question its existence;
E. Whether the existence of the municipality has been recognized by the laws of the
land; and
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F. Whether the decision of the Provincial Board had acquired finality.
On February 10, 1992, the RTC rendered its decision, the dispositive portion of which
reads:
WHEREFORE, premises considered, it is the finding of this Court that the petition must
be denied and judgment is hereby rendered declaring a STATUS QUO, that is, the
municipality of Sinacaban shall continue to exist and operate as a regular municipality;
declaring the decision dated October 11, 1989 rendered by the Sangguniang
Panlalawigan fixing the boundaries between Sinacaban and Jimenez, Misamis Occi. as
null and void, the same not being in accordance with the boundaries provided for in
Executive Order No. 258 creating the municipality of Sinacaban; dismissing the petition
for lack of merit, without pronouncement as to costs and damages. With respect to the
counterclaim, the same is hereby ordered dismissed.
The Commissioners are hereby ordered to conduct the relocation survey of the
boundary of Sinacaban within 60 days from the time the decision shall have become
final and executory and another 60 days within which to submit their report from the
completion of the said relocation survey.
SO ORDERED.
The RTC, inter alia, held that Sinacaban is a de facto corporation since it had completely
organized itself even prior to the Pelaez case and exercised corporate powers for forty
years before its existence was questioned; that Jimenez did not have the legal standing
to question the existence of Sinacaban, the same being reserved to the State as
represented by the Office of the Solicitor General in a quo warranto proceeding; that
Jimenez was estopped from questioning the legal existence of Sinacaban by entering
into an agreement with it concerning their common boundary; and that any question as
to the legal existence of Sinacaban had been rendered moot by §442(d) of the Local
Government Code of 1991 (R.A. No. 7160), which provides:
Municipalities existing as of the date of the effectivity of this Code shall continue to exist
and operate as such. Existing municipal districts organized pursuant to presidential
issuances or executive orders and which have their respective set of elective municipal
officials holding office at the time of the effectivity of this Code shall henceforth be
considered as regular municipalities.
On March 17, 1990, petitioner moved for a reconsideration of the decision but its motion
was denied by the RTC. Hence this petition raising the following issues: (1) whether
Sinacaban has legal personality to file a claim, and (2) if it has, whether it is the
boundary provided for in E.O. No. 258 or in Resolution No. 77 of the Provincial Board of
Misamis Occidental which should be used as the basis for adjudicating Sinacaban's
territorial claim.
First. The preliminary issue concerns the legal existence of Sinacaban. If Sinacaban
legally exists, then it has standing to bring a claim in the Provincial Board. Otherwise, it
cannot.
The principal basis for the view that Sinacaban was not validly created as a municipal
corporation is the ruling in Pelaez v. Auditor General that the creation of municipal
corporations is essentially a legislative matter and therefore the President was without
power to create by executive order the Municipality of Sinacaban. The ruling in this case
has been reiterated in a number of cases 9 later decided. However, we have since held
that where a municipality created as such by executive order is later impliedly
recognized and its acts are accorded legal validity, its creation can no longer be
questioned. In Municipality of San Narciso, Quezon v. Mendez, Sr., 10 this Court
considered the following factors as having validated the creation of a municipal
corporation, which, like the Municipality of Sinacaban, was created by executive order of
the President before the ruling in Pelaez v. Auditor General: (1) the fact that for nearly 30
years the validity of the creation of the municipality had never been challenged; (2) the
WEEK 3
fact that following the ruling in Pelaez no quo warranto suit was filed to question the
validity of the executive order creating such municipality; and (3) the fact that the
municipality was later classified as a fifth class municipality, organized as part of a
municipal circuit court and considered part of a legislative district in the Constitution
apportioning the seats in the House of Representatives. Above all, it was held that
whatever doubt there might be as to the de jure character of the municipality must be
deemed to have been put to rest by the Local Government Code of 1991 (R.A. No.
7160), §442(d) of which provides that "municipal districts organized pursuant to
presidential issuances or executive orders and which have their respective sets of
elective officials holding office at the time of the effectivity of this Code shall henceforth
be considered as regular municipalities."
Here, the same factors are present so as to confer on Sinacaban the status of at least
a de facto municipal corporation in the sense that its legal existence has been
recognized and acquiesced publicly and officially. Sinacaban had been in existence for
sixteen years when Pelaez v. Auditor General was decided on December 24, 1965. Yet
the validity of E.O. No. 258 creating it had never been questioned. Created in 1949, it
was only 40 years later that its existence was questioned and only because it had laid
claim to an area that apparently is desired for its revenue. This fact must be underscored
because under Rule 66, §16 of the Rules of Court, a quo warranto suit against a
corporation for forfeiture of its charter must be commenced within five (5) years from the
time the act complained of was done or committed. On the contrary, the State and even
the Municipality of Jimenez itself have recognized Sinacaban's corporate existence.
Under Administrative Order No. 33 dated June 13, 1978 of this Court, as reiterated by
§31 of the Judiciary Reorganization Act of 1980 (B. P. Blg. 129), Sinacaban is
constituted part of a municipal circuit for purposes of the establishment of Municipal
Circuit Trial Courts in the country. For its part, Jimenez had earlier recognized
Sinacaban in 1950 by entering into an agreement with it regarding their common
boundary. The agreement was embodied in Resolution No. 77 of the Provincial Board of
Misamis Occidental.
Indeed Sinacaban has attained de jure status by virtue of the Ordinance appended to

the 1987 Constitution, apportioning legislative districts throughout the country, which
considered Sinacaban part of the Second District of Misamis Occidental. Moreover,
following the ruling in Municipality of San Narciso, Quezon v. Mendez, Sr., §442(d) of the
Local Government Code of 1991 must be deemed to have cured any defect in the
creation of Sinacaban. This provision states:
Municipalities existing as of the date of the effectivity of this Code shall continue to exist
and operate as such. Existing municipal districts organized pursuant to presidential
issuances or executive orders and which have their respective set of elective municipal
officials holding office at the time of the effectivity of the Code shall henceforth be
considered as regular municipalities.
Second. Jimenez claims, however, that R.A. No. 7160, §442(d) is invalid, since it does
not conform to the constitutional and statutory requirements for the holding of plebiscites
in the creation of new
municipalities. 11
This contention will not bear analysis. Since, as previously explained, Sinacaban had
attained de facto status at the time the 1987 Constitution took effect on February 2,
1987, it is not subject to the plebiscite requirement. This requirement applies only
to new municipalities created for the first time under the Constitution. Actually, the
requirement of plebiscite was originally contained in Art. XI, §3 of the previous
Constitution which took effect on January 17, 1973. It cannot, therefore, be applied to
municipal corporations created before, such as the Municipality of Sinacaban in the case
at bar.
Third. Finally, Jimenez argues that the RTC erred in ordering a relocation survey of the
boundary of Sinacaban because the barangays which Sinacaban are claiming are not
enumerated in E.O. No. 258 and that in any event in 1950 the parties entered into an
WEEK 3
agreement whereby the barangays in question were considered part of the territory of
Jimenez.
E.O. No. 258 does not say that Sinacaban comprises only the barrios (now called
barangays) therein mentioned. What it says is that "Sinacaban contains" those barrios,
without saying they are the only ones comprising it. The reason for this is that the
technical description, containing the metes and bounds of its territory, is controlling. The
trial court correctly ordered a relocation survey as the only means of determining the
boundaries of the municipality and consequently the question to which the municipality
the barangays in question belong.
Now, as already stated, in 1950 the two municipalities agreed that certain barrios
belonged to Jimenez, while certain other ones belonged to Sinacaban. This agreement
was subsequently approved by the Provincial Board of Misamis Occidental. Whether this
agreement conforms to E.O. No. 258 will be determined by the result of the survey.
Jimenez contends, however, that regardless of its conformity to E.O. No. 258, the
agreement as embodied in Resolution No. 77 of the Provincial Board, is binding on
Sinacaban. This raises the question whether the Provincial Board had authority to
approve the agreement or, to put it in another way, whether it had the power to declare
certain barrios part of one or the other municipality. We hold it did not if the effect would
be to amend the area as described in E.O. No. 258 creating the Municipality of
Sinacaban.
At the time the Provincial Board passed Resolution No. 77 on February 18, 1950, the
applicable law was §2167 of the Revised Administrative Code of 1917 which provided:
Sec. 2167. Municipal boundary disputes. — How settled. — Disputes as to jurisdiction of

municipal governments over places or barrios shall be decided by the provincial boards
of the provinces in which such municipalities are situated, after an investigation at which
the municipalities concerned shall be duly heard. From the decision of the provincial
board appeal may be taken by the municipality aggrieved to the Secretary of the Interior
[now the Office of the Executive Secretary], whose decision shall be final. Where the
places or barrios in dispute are claimed by municipalities situated in different provinces,
the provincial boards of the provinces concerned shall come to an agreement if possible,
but, in the event of their failing to agree, an appeal shall be had to the Secretary of
Interior [Executive Secretary], whose decision shall be final.
As held in Pelaez v. Auditor General, 12 the power of provincial boards to settle boundary

disputes is "of an administrative nature — involving, as it does, the adoption of means
and ways to carry into effect the law creating said municipalities." It is a power "to fix
common boundary, in order to avoid or settle conflicts of jurisdiction between adjoining
municipalities." It is thus limited to implementing the law creating a municipality. It is
obvious that any alteration of boundaries that is not in accordance with the law creating
a municipality is not the carrying into effect of that law but its amendment. 13 If, therefore,
Resolution No. 77 of the Provincial Board of Misamis Occidental is contrary to the
technical description of the territory of Sinacaban, it cannot be used by Jimenez as basis
for opposing the claim of Sinacaban.
Jimenez properly brought to the RTC for review the decision of October 11, 1989 and
Resolution No. 13-90 of the Provincial Board. Its action is in accordance with the Local
Government Code of 1983, §79 of which provides that in case no settlement of boundary
disputes is made the dispute should be elevated to the RTC of the province. In 1989,
when the action was brought by Jimenez, this Code was the governing law. The
governing law is now the Local Government Code of 1991 (R.A. No. 7160), §§118-119.
Jimenez's contention that the RTC failed to decide the case "within one year from the
start of proceedings" as required by §79 of the Local Government Code of 1983 and the
90-day period provided for in Article VIII, §15 of the Constitution does not affect the
validity of the decision rendered. For even granting that the court failed to decide within
the period prescribed by law, its failure did not divest it of its jurisdiction to decide the
case but only makes the judge thereof liable for possible administrative sanction.
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WHEREFORE, the petition is DENIED and the decision of the Regional Trial Court
of Oroquieta City, Branch 14 is AFFIRMED.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Vitug, Kapunan, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ.,
concur.
Footnotes
13 These barrios are currently under Jimenez's jurisdiction. Jimenez claims that
Sinacaban filed its territorial claim because it desired the revenues from the oil mill in
Tabo-o.
6 B.P. Blg. 337, §134 provides:
§134. Manner of Creation. — A municipality may be created, named and its boundaries

defined, altered or modified only by an Act of the Batasang Pambansa, subject to the
approval by a majority of the votes cast in a plebiscite to be held in the unit or units
affected. Except as may otherwise be provided in said Act, the plebiscite shall be
conducted by the Commission on Elections within one hundred twenty days from the
date of its effectivity.
8 122 Phil. 965 (1965).
9 Municipality of San Joaquin v. Siva, 19 SCRA 599 (1967); Municipality of Malabang,

Lanao del Sur v. Benito, 27 SCRA 533 (1969); Municipality of Kapalong v. Moya, 166
SCRA 70 (1985).
10 239 SCRA 11 (1994). Accord, Municipality of Candijay v. Court of Appeals, 251

SCRA 530 (1995).
11 Petitioner cites the following:
CONST., Art. X, §10. No province, city, municipality, or barangay may be created,

divided, merged, abolished, or its boundary substantially altered, except in accordance
with the criteria established in the local government code and subject to approval by a
majority of the votes cast in a plebiscite in the political units directly affected.
R.A. No. 7160, §10. Plebiscite Requirement. — No creation, division, merger, abolition,

or substantial alteration of boundaries of local government units shall take effect unless
approved by a majority of the votes cast in a plebiscite called for the purpose in the
political unit or units directly affected. Said plebiscite shall be conducted by the
Commission on Elections (Comelec) within one hundred twenty (120) days from the date
of effectivity of the law or ordinance effecting such action, unless said law or ordinance
fixes another date.
Id., 9441. Manner of Creation. — A municipality may be created, divided, merged,

abolished, or its boundary substantially altered only by an Act of Congress and subject
to the approval by a majority of the votes cast in a plebiscite to be conducted by the
Comelec in the local government unit or units directly affected. Except as may otherwise
be provided in the said Act, the plebiscite shall be held within one hundred twenty (120)
days from the date of its effectivity.
12 122 Phil. at 973.
13 Which only Congress can do. See Municipality of Sogod v. Rosal, 201 SCRA 232
(1991).
WEEK 3
14 Marcelino v. Cruz, Jr., 121 SCRA 51 (1983).
4. ANDAYA VS REGIONAL TRIAL COURT 319 SCRA 696, 1999
G.R. No. 126661 December 3, 1999
JOSE S. ANDAYA and EDGARDO L. INCIONG, petitioners,

vs.
REGIONAL TRIAL COURT, Cebu City, Branch 20, and THE CITY OF
CEBU, respondents.
PARDO, J.: FIRST DIVISION
The case is an appeal via certiorari from a decision 1 of the Regional Trial Court, Cebu
City, Branch 20, commanding petitioner Jose S. Andaya as Regional Police Command
No. 7, to include P/Chief Inspector Andres Sarmiento in the list of five (5)
recommendees to be submitted to the mayor from which list the mayor shall select the
City Director, Cebu City Police Command (chief of police).
On January 3, 1996, the position of City Director, Cebu City Police Command (chief of
police) became vacant after P/Supt. Antonio Enteria was relieved of command.
Sometime in January 1996, petitioner Andaya submitted to the City Mayor, Cebu City a
list of five (5) eligibles for the mayor choose one to be appointed as the chief of police of
Cebu City. The mayor did not choose anyone from the list of five (5) recommendees
because the name of P/Chief Inspector Andres Sarmiento was not included therein.
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However, petitioner Andaya refused to agree to Mayor Alvin B. Garcia's request to
include the name of Major Andres Sarmiento in the list of police officers for appointment
by the mayor to the position of City Director (chief of police), Cebu City Police
Command. Petitioner Andaya's refusal was based on his contention that Major Andres
Sarmiento was not qualified for the position of City Director (chief of police), Cebu City
Police Command, under NAPOLCOM Memorandum Circular No. 95-04 dated January
12, 1995, particularly Item No. 8, paragraph D thereof, which provides that the minimum
qualification standards for Directors of Provincial/City Police Commands, include
completion of the Officers Senior Executive Course (OSEC) and the rank of Police
Superintendent.
Due to the impasse, on March 22, 1996, the City of Cebu filed with the Regional Trial
Court, Branch 20, Cebu City, a complaint for declaratory relief with preliminary
prohibitory and mandatory injunction and temporary restraining order against P/Chief
Supt. Jose S. Andaya and Edgardo L. Inciong, Regional Director, National Police
Commission. 2
On April 10, 1996, petitioners filed with the trial court their respective answer to the
complaint. Petitioners stated that the power to designate the chief of police of Cebu City
(City Director, Cebu City Police Command) is vested with the Regional Director,
Regional Police Command No. 7. However, the mayor is authorized to choose the chief
of police from a list of five (5) eligibles submitted by the Regional Director. In case of
conflict between the Regional Director and the mayor, the issue shall be elevated to the
Regional Director, National Police Commission, who shall resolve the issue within five
(5) working days from receipt and whose decision on the choice of the chief of police
shall be final and executory. Thus, petitioners prayed for dismissal of the complaint for
lack of legal basis and failure to exhaust administrative remedies. 3
On April 18, 1996, the trial court issued a writ of preliminary injunction against petitioner
Jose S. Andaya enjoining him from replacing C/Insp. Andres Sarmiento as OIC Director
or Chief of Police of the Cebu City Police Command by designating another as OIC
Chief of Police or appointing a regular replacement for said officer, and, from submitting
to the mayor a list of five (5) eligibles which did not include the name of Major Andres
Sarmiento. 4
On July 12, 1996, the trial court rendered decision in favor of respondent City of Cebu,
the dispositive portion of which reads as follows:
WHEREFORE, in view of all the foregoing premises, judgment is hereby rendered in

favor of plaintiff as against defendants, declaring that P/CInsp. Andres Sarmiento is
qualified under RA 6975 to be appointed as Chief Director or Chief of Police of the Cebu
City Police Command and whose name must be included in the list of five (5) eligibles
recommended as regular replacement to the position of the Chief of Police of said Cebu
City Police Command.
The writ of preliminary prohibitory injunction issued in this case against defendants and
their agents, or, representatives or any other persons acting for and in their behalf
enjoining and preventing them from replacing P/CInsp. Andres Sarmiento as OIC Chief
of Police of Cebu City Police Command by designating anyone from the eligibles
recommended in the two (2) lists thereof submitted to Mayor Garcia or from any other list
of said eligible recommendees for said position is hereby made permanent.
Let a permanent writ of preliminary mandatory injunction be issued against defendant

Jose S. Andaya or his successor ordering the latter to include Major Andres Sarmiento
in the list of five (5) eligible persons recommended for the replacement to the position of
Chief of Police of Cebu City Police Command.
SO ORDERED.
Cebu City, July 12, 1996.
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(s/t) FERDINAND J. MARCOS
Judge 5
In due time, petitioners filed with the trial court their joint motion for reconsideration 6 on
the ground that the decision is contrary to Section 51 of Republic Act 6975 which only
empowers the mayor to choose one (1) from the five (5) eligibles recommended by the
Regional Police Director to be named chief of police. The mayor cannot superimpose his
will on the recommending authority by insisting that his protégé be included in the list of
five eligibles from which the chief of police is to be chosen.
On September 11, 1996, the trial court denied petitioners' motion for reconsideration
ruling that no new matters had been raised therein. 7
Hence, this petition 8 review on certiorari on pure question of law. 9
On June 11, 1997, we gave due course to the petition. 10
At issue is whether or not the Mayor of Cebu City may require the Regional Director,
Regional Police Command No. 7, to include the mayor's protégé in the list of five (5)
eligibles to be recommended by the Regional Police Director to the mayor from which
the mayor shall choose the City Director, City Police Command (chief of police) City of
Cebu.
We resolve the issue against the position of the city mayor.
Republic Act No. 6975, Section 51, gives authority to the mayor of Cebu City 11 to
choose the chief of police from a list of five (5) eligibles recommended by the Regional
Director, Regional Police Command No. 7.
The National Police Commission has issued Memorandum Circular No. 95-04, dated
January 12, 1995, for the implementation of Republic Act No. 6975. It provides that
among the qualifications for chief of police of highly urbanized cities are (1) completion
of the Officers' Senior Executive Course (OSEC) and (2) holding the rank of Police
Superintendent.
The mayor of Cebu City submits that Memorandum Circular No. 95-04 of the National
Police Commission prescribing such additional qualifications is not valid as it
contravenes the law.
We do not agree. Under Republic Act No. 6975, Section 51, the mayor of Cebu City
shall be deputized as representative of the Commission (National Police Commission) in
his territorial jurisdiction and as such the mayor shall have authority to choose the chief
of police from a list of five (5) eligibles recommended by the Police Regional Director.
The City Police Station of Cebu City is under the direct command and control of the PNP
Regional Director, Regional Police Command No. 7, and is equivalent to a provincial
office. 12 Then, the Regional Director, Regional Police Command No. 7 appoints the
officer selected by the mayor as the City Director, City Police Command (chief of police)
Cebu City. It is the prerogative of the Regional Police Director to name the five (5)
eligibles from a pool of eligible officers screened by the Senior Officers Promotion and
Selection Board, Headquarters, Philippine National Police, Camp Crame, Quezon City,
without interference from local executives. In case of disagreement between the
Regional Police Director and the Mayor, the question shall be elevated to the Regional
Director, National Police Commission, who shall resolve the issue within five (5) working
days from receipt and whose decision on the choice of the Chief of Police shall be final
and executory. 13 As deputy of the Commission, the authority of the mayor is very limited.
In reality, he has no power of appointment; he has only the limited power of selecting
one from among the list of five eligibles to be named the chief of police. Actually, the
power to appoint the chief of police of Cebu City is vested in the Regional Director,
Regional Police Command No. 7. Much less may the mayor require the Regional
Director, Regional Police Command, to include the name of any officer, no matter how
WEEK 3
qualified, in the list of five to be submitted to the mayor. The purpose is to enhance
police professionalism and to isolate the police service from political domination.
Consequently, we find that the trial court erred in granting preliminary injunction that
effectively restrained the Regional Director, Regional Police Command, Region 7, from
performing his statutory function. The writ of preliminary injunction issued on April 18,
1996, is contrary to law and thus void. Similarly, the lower court's decision sustaining the
City Mayor's position suffers from the same legal infirmity.
WHEREFORE, the Court GRANTS the petition and SETS ASIDE the decision of the
Regional Trial Court, Branch 20, Cebu City, dated July 12, 1996, in Civil Case No.
CEB-18545. In lieu thereof, the Court renders judgment upholding the sole
discretion of the Regional Director, Regional Police Command No. 7, to submit to
the mayor of Cebu City a list of five (5) eligibles from which the mayor shall
choose the chief of police. In case of the mayor's refusal to make his choice within
a given period due to disagreement as to the eligible nominees, the issue shall be
submitted to the Regional Director, National Police Commission, whose decision
shall be final.
No costs.SO ORDERED.
Kapunan and Ynares-Santiago, JJ., concur.
Davide, Jr., C.J., like Justice Puno, on the ground of non-exhaustion of administrative
remedies.
Puno, J., I concur but on the ground of non-exhaustion of adm. remedies.
Footnotes
1 In Civil Case No. CEB-18545, dated July 12, 1996, Judge Ferdinand J. Marcos,
presiding, Rollo, pp. 12-20.
9 Under Circular No. 2-90, dated March 9, 1990.
11 Provided the National Police Commission has deputized him as representative of the
Commission.
12 Napolcom Resolution No. 92-36, dated October 15, 1992, cited in Rollo, p. 36.
13 Napolcom Memorandum Circular No. 93-013, Section 6.
WEEK 3
5. GANZON VS COURT OF APPEALS, 200 SCRA 271, 1991
G.R. No. 93252 August 5, 1991
RODOLFO T. GANZON, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, respondents.
G.R. No. 93746 August 5,1991
MARY ANN RIVERA ARTIEDA, petitioner,

vs.
HON. LUIS SANTOS, in his capacity as Secretary of the Department of Local
Government, NICANOR M. PATRICIO, in his capacity as Chief, Legal Service of the
Department of Local Government and SALVADOR CABALUNA JR., respondents.
G.R. No. 95245 August 5,1991
RODOLFO T. GANZON, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, in his capacity as
the Secretary of the Department of Local Government, respondents.
Nicolas P. Sonalan for petitioner in 93252.Romeo A. Gerochi for petitioner in

93746.Eugenio Original for petitioner in 95245.
SARMIENTO, J.: EN BANC
The petitioners take common issue on the power of the President (acting through the
Secretary of Local Government), to suspend and/or remove local officials.
The petitioners are the Mayor of Iloilo City (G.R. Nos. 93252 and 95245) and a member
of the Sangguniang Panglunsod thereof (G.R. No. 93746), respectively.
The petitions of Mayor Ganzon originated from a series of administrative complaints, ten
in number, filed against him by various city officials sometime in 1988, on various
charges, among them, abuse of authority, oppression, grave misconduct, disgraceful
and immoral conduct, intimidation, culpable violation of the Constitution, and arbitrary
detention.1 The personalities involved are Joceleehn Cabaluna, a clerk at the city health
office; Salvador Cabaluna, her husband; Dr. Felicidad Ortigoza, Assistant City Health
Officer; Mansueto Malabor, Vice-Mayor; Rolando Dabao, Dan Dalido, German
Gonzales, Larry Ong, and Eduardo Pefia Redondo members of the Sangguniang
Panglunsod; and Pancho Erbite, a barangay tanod. The complaints against the Mayor
are set forth in the opinion of the respondent Court of Appeals.2 We quote:
x x x x x x x x x
In her verified complaint (Annex A), Mrs. Cabaluna, a clerk assigned to the City Health,
Office of Iloilo City charged that due to political reasons, having supported the rival
candidate, Mrs. Rosa 0. Caram, the petitioner City Mayor, using as an excuse the
exigency of the service and the interest of the public, pulled her out from rightful office
where her qualifications are best suited and assigned her to a work that should be the
function of a non-career service employee. To make matters worse, a utility worker in
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the office of the Public Services, whose duties are alien to the complainant's duties and
functions, has been detailed to take her place. The petitioner's act are pure harassments
aimed at luring her away from her permanent position or force her to resign.
In the case of Dra. Felicidad Ortigoza, she claims that the petitioner handpicked her to
perform task not befitting her position as Assistant City Health Officer of Iloilo City; that
her office was padlocked without any explanation or justification; that her salary was
withheld without cause since April 1, 1988; that when she filed her vacation leave, she
was given the run-around treatment in the approval of her leave in connivance with Dr.
Rodolfo Villegas and that she was the object of a well-engineered trumped-up charge in
an administrative complaint filed by Dr. Rodolfo Villegas (Annex B).
On the other hand, Mansuelo Malabor is the duly elected Vice-Mayor of Iloilo City and
complainants Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong and Eduardo
Pefia Pedondo are members of the Sangguniang Panglunsod of the City of Iloilo. Their
complaint arose out from the case where Councilor Larry Ong, whose key to his office
was unceremoniously and without previous notice, taken by petitioner. Without an office,
Councilor Ong had to hold office at Plaza Libertad, The Vice-Mayor and the other
complainants sympathized with him and decided to do the same. However, the
petitioner, together with its fully-armed security men, forcefully drove them away from
Plaza Libertad. Councilor Ong denounced the petitioner's actuations the following day in
the radio station and decided to hold office at the Freedom Grandstand at Iloilo City and
there were so many people who gathered to witness the incident. However, before the
group could reach the area, the petitioner, together with his security men, led the firemen
using a firetruck in dozing water to the people and the bystanders.
Another administrative case was filed by Pancho Erbite, a barangay tanod, appointed by
former mayor Rosa O. Caram. On March 13, 1988, without the benefit of charges filed
against him and no warrant of arrest was issued, Erbite was arrested and detained at the
City Jail of Iloilo City upon orders of petitioner. In jail, he was allegedly mauled by other
detainees thereby causing injuries He was released only the following day.3
The Mayor thereafter answered4 and the cases were shortly set for hearing. The opinion
of the Court of Appeals also set forth the succeeding events:
x x x x x x x x x
The initial hearing in the Cabaluna and Ortigoza cases were set for hearing on June 20-
21, 1988 at the Regional Office of the Department of Local Government in Iloilo City.
Notices, through telegrams, were sent to the parties (Annex L) and the parties received
them, including the petitioner. The petitioner asked for a postponement before the
scheduled date of hearing and was represented by counsel, Atty. Samuel Castro. The
hearing officers, Atty. Salvador Quebral and Atty. Marino Bermudez had to come all the
way from Manila for the two-day hearings but was actually held only on June 20,1988 in
view of the inability and unpreparedness of petitioner's counsel.
The next hearings were re-set to July 25, 26, 27,1988 in the same venue-Iloilo City.
Again, the petitioner attempted to delay the proceedings and moved for a postponement
under the excuse that he had just hired his counsel. Nonetheless, the hearing officers
denied the motion to postpone, in view of the fact that the parties were notified by
telegrams of the scheduled hearings (Annex M).
In the said hearings, petitioner's counsel cross-examined the complainants and their
witnesses.
Finding probable grounds and reasons, the respondent issued a preventive suspension
order on August 11, 1988 to last until October 11,1988 for a period of sixty (60) days.
Then the next investigation was set on September 21, 1988 and the petitioner again
asked for a postponement to September 26,1988. On September 26, 1988, the
complainants and petitioner were present, together with their respective counsel. The
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petitioner sought for a postponement which was denied. In these hearings which were
held in Mala the petitioner testified in Adm. Case No. C-10298 and 10299.
The investigation was continued regarding the Malabor case and the complainants
testified including their witnesses.
On October 10, 1988, petitioner's counsel, Atty. Original moved for a postponement of
the October 24, 1988 hearing to November 7 to 11, 1988 which was granted. However,
the motion for change of venue as denied due to lack of funds. At the hearing on
November 7, 1988, the parties and counsel were present. Petitioner reiterated his
motion to change venue and moved for postponement anew. The counsel discussed a
proposal to take the deposition of witnesses in Iloilo City so the hearing was indefinitely
postponed. However, the parties failed to come to terms and after the parties were
notified of the hearing, the investigation was set to December 13 to 15, 1988.
The petitioner sought for another postponement on the ground that his witnesses were
sick or cannot attend the investigation due to lack of transportation. The motion was
denied and the petitioner was given up to December 14, 1988 to present his evidence.
On December 14,1988, petitioner's counsel insisted on his motion for postponement and
the hearing officers gave petitioner up to December 15, 1988 to present his evidence.
On December 15, 1988, the petitioner failed to present evidence and the cases were
considered submitted for resolution.
In the meantime, a prima facie evidence was found to exist in the arbitrary detention
case filed by Pancho Erbite so the respondent ordered the petitioner's second preventive
suspension dated October 11, 1988 for another sixty (60) days. The petitioner was able
to obtain a restraining order and a writ of preliminary injunction in the Regional Trial
Court, Branch 33 of Iloilo City. The second preventive suspension was not enforced.5
Amidst the two successive suspensions, Mayor Ganzon instituted an action for
prohibition against the respondent Secretary of Local Government (now, Interior) in the
Regional Trial Court, Iloilo City, where he succeeded in obtaining a writ of preliminary
injunction. Presently, he instituted CA-G.R. SP No. 16417, an action for prohibition, in
the respondent Court of Appeals.
Meanwhile, on May 3, 1990, the respondent Secretary issued another order,

preventively suspending Mayor Ganzon for another sixty days, the third time in twenty
months, and designating meantime Vice-Mayor Mansueto Malabor as acting mayor.
Undaunted, Mayor Ganzon commenced CA-G.R. SP No. 20736 of the Court of Appeals,
a petition for prohibition,6 (Malabor it is to be noted, is one of the complainants, and
hence, he is interested in seeing Mayor Ganzon ousted.)
On September 7, 1989, the Court of Appeals rendered judgment, dismissing CA-G.R.

SP No. 16417. On July 5, 1990, it likewise promulgated a decision, dismissing CA-G.R.
SP No. 20736. In a Resolution dated January 24, 1990, it issued a Resolution certifying
the petition of Mary Ann Artieda, who had been similary charged by the respondent
Secretary, to this Court.
On June 26,1990, we issued a Temporary Restraining Order, barring the respondent

Secretary from implementing the suspension orders, and restraining the enforcement of
the Court of Appeals' two decisions.
In our Resolution of November 29, 1990, we consolidated all three cases. In our
Resolutions of January 15, 1991, we gave due course thereto.
Mayor Ganzon claims as a preliminary (GR No. 93252), that the Department of Local
Government in hearing the ten cases against him, had denied him due process of law
and that the respondent Secretary had been "biased, prejudicial and hostile" towards
him7 arising from his (Mayor Ganzon's) alleged refusal to join the Laban ng
Demokratikong Pilipino party8 and the running political rivalry they maintained in the last
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congressional and local elections;9 and his alleged refusal to operate a lottery in Iloilo
City.10 He also alleges that he requested the Secretary to lift his suspension since it had
come ninety days prior to an election (the barangay elections of November 14,
1988),11 notwithstanding which, the latter proceeded with the hearing and meted out two
more suspension orders of the aforementioned cases.12 He likewise contends that he
sought to bring the cases to Iloilo City (they were held in Manila) in order to reduce the
costs of proceeding, but the Secretary rejected his request. 13 He states that he asked for
postponement on "valid and justifiable"14 grounds, among them, that he was suffering
from a heart ailment which required confinement; that his "vital" 15 witness was also
hospitalized16 but that the latter unduly denied his request.17
Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the Secretary of
Local Government is devoid, in any event, of any authority to suspend and remove local
officials, an argument reiterated by the petitioner Mary Ann Rivera Artieda (G.R. No.
93746).
As to Mayor Ganzon's charges of denial of due process, the records do not show very
clearly in what manner the Mayor might have been deprived of his rights by the
respondent Secretary. His claims that he and Secretary Luis-Santos were (are) political
rivals and that his "persecution" was politically motivated are pure speculation and
although the latter does not appear to have denied these contentions (as he, Mayor
Ganzon, claims), we can not take his word for it the way we would have under less
political circumstances, considering furthermore that "political feud" has often been a
good excuse in contesting complaints.
The Mayor has failed furthermore to substantiate his say-so's that Secretary Santos had
attempted to seduce him to join the administration party and to operate a lottery in Iloilo
City. Again, although the Secretary failed to rebut his allegations, we can not accept
them, at face value, much more, as judicial admissions as he would have us accept
them18 for the same reasons above-stated and furthermore, because his say so's were
never corroborated by independent testimonies. As a responsible public official,
Secretary Santos, in pursuing an official function, is presumed to be performing his
duties regularly and in the absence of contrary evidence, no ill motive can be ascribed to
him.
As to Mayor Ganzon's contention that he had requested the respondent Secretary to

defer the hearing on account of the ninety-day ban prescribed by Section 62 of Batas
Blg. 337, the Court finds the question to be moot and academic since we have in fact
restrained the Secretary from further hearing the complaints against the petitioners.19
As to his request, finally, for postponements, the Court is afraid that he has not given
any compelling reason why we should overturn the Court of Appeals, which found no
convincing reason to overrule Secretary Santos in denying his requests. Besides,
postponements are a matter of discretion on the part of the hearing officer, and based on
Mayor Ganzon's above story, we are not convinced that the Secretary has been guilty of
a grave abuse of discretion.
The Court can not say, under these circumstances, that Secretary Santos' actuations
deprived Mayor Ganzon of due process of law.
We come to the core question: Whether or not the Secretary of Local Government, as
the President's alter ego, can suspend and/or remove local officials.
It is the petitioners' argument that the 1987 Constitution 20 no longer allows the President,
as the 1935 and 1973 Constitutions did, to exercise the power of suspension and/or
removal over local officials. According to both petitioners, the Constitution is meant, first,
to strengthen self-rule by local government units and second, by deleting the phrase21 as
may be provided by law to strip the President of the power of control over local
governments. It is a view, so they contend, that finds support in the debates of the
Constitutional Commission. The provision in question reads as follows:
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Sec. 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and cities
and municipalities with respect to component barangays shall ensure that the acts of
their component units are within the scope of their prescribed powers and functions.22
It modifies a counterpart provision appearing in the 1935 Constitution, which we quote:
Sec. 10. The President shall have control of all the executive departments, bureaus, or
offices, exercise general supervision over all Local governments as may be provided by
law, and take care that the laws be faithfully executed.23
The petitioners submit that the deletion (of "as may be provided by law") is significant, as
their argument goes, since: (1) the power of the President is "provided by law" and (2)
hence, no law may provide for it any longer.
It is to be noted that in meting out the suspensions under question, the Secretary of
Local Government acted in consonance with the specific legal provisions of Batas Blg.
337, the Local Government Code, we quote:
Sec. 62. Notice of Hearing. — Within seven days after the complaint is filed, the Minister
of local Government, or the sanggunian concerned, as the case may be, shall require
the respondent to submit his verified answer within seven days from receipt of said
complaint, and commence the hearing and investigation of the case within ten days after
receipt of such answer of the respondent. No investigation shall be held within ninety
days immediately prior to an election, and no preventive suspension shall be imposed
with the said period. If preventive suspension has been imposed prior to the aforesaid
period, the preventive suspension shall be lifted.24
Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by the

Minister of Local Government if the respondent is a provincial or city official, by the
provincial governor if the respondent is an elective municipal official, or by the city or
municipal mayor if the respondent is an elective barangay official.
(2) Preventive suspension may be imposed at any time after the issues are joined, when
there is reasonable ground to believe that the respondent has committed the act or acts
complained of, when the evidence of culpability is strong, when the gravity of the offense
so warrants, or when the continuance in office of the respondent could influence the
witnesses or pose a threat to the safety and integrity of the records and other evidence.
In all cases, preventive suspension shall not extend beyond sixty days after the start of
said suspension.
(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in
office without prejudice to the continuation of the proceedings against him until its
termination. However ' if the delay in the proceedings of the case is due to his fault,
neglect or request, the time of the delay shall not be counted in computing the time of
suspension.25
The issue, as the Court understands it, consists of three questions: (1) Did the 1987
Constitution, in deleting the phrase "as may be provided by law" intend to divest the
President of the power to investigate, suspend, discipline, and/or remove local officials?
(2) Has the Constitution repealed Sections 62 and 63 of the Local Government Code?
(3) What is the significance of the change in the constitutional language?
It is the considered opinion of the Court that notwithstanding the change in the
constitutional language, the charter did not intend to divest the legislature of its right or
the President of her prerogative as conferred by existing legislation to provide
administrative sanctions against local officials. It is our opinion that the omission (of "as
may be provided by law") signifies nothing more than to underscore local governments'
autonomy from congress and to break Congress' "control" over local government affairs.
The Constitution did not, however, intend, for the sake of local autonomy, to deprive the
WEEK 3
legislature of all authority over municipal corporations, in particular, concerning
discipline.
Autonomy does not, after all, contemplate making mini-states out of local government
units, as in the federal governments of the United States of America (or Brazil or
Germany), although Jefferson is said to have compared municipal corporations
euphemistically to "small republics."26 Autonomy, in the constitutional sense, is subject to
the guiding star, though not control, of the legislature, albeit the legislative responsibility
under the Constitution and as the "supervision clause" itself suggest-is to wean local
government units from over-dependence on the central government.
It is noteworthy that under the Charter, "local autonomy" is not instantly self-executing,
but subject to, among other things, the passage of a local government code, 27 a local tax
law,28 income distribution legislation,29 and a national representation law,30 and
measures31 designed to realize autonomy at the local level. It is also noteworthy that in
spite of autonomy, the Constitution places the local government under the general
supervision of the Executive. It is noteworthy finally, that the Charter allows Congress to
include in the local government code provisions for removal of local officials, which
suggest that Congress may exercise removal powers, and as the existing Local
Government Code has done, delegate its exercise to the President. Thus:
Sec. 3. The Congress shall enact a local government code which shall provide for a
more responsive and accountable local government structure instituted through a
system of decentralization with effective mechanisms of recall, initiative, and
referendum, allocate among the different local government units their powers,
responsibilities and resources, and provide for the qualifications, election, appointment
and removal, term, salaries, powers and functions and duties of local officials, and all
other matters relating to the organization and operation of the local units.32
As hereinabove indicated, the deletion of "as may be provided by law" was meant to
stress, sub silencio, the objective of the framers to strengthen local autonomy by
severing congressional control of its affairs, as observed by the Court of Appeals, like
the power of local legislation.33 The Constitution did nothing more, however, and insofar
as existing legislation authorizes the President (through the Secretary of Local
Government) to proceed against local officials administratively, the Constitution contains
no prohibition.
The petitioners are under the impression that the Constitution has left the President
mere supervisory powers, which supposedly excludes the power of investigation, and
denied her control, which allegedly embraces disciplinary authority. It is a mistaken
impression because legally, "supervision" is not incompatible with disciplinary authority
as this Court has held,34 thus:
x x x x x x x x x
It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p. 2884, this Court
had occasion to discuss the scope and extent of the power of supervision by the
President over local government officials in contrast to the power of control given to him
over executive officials of our government wherein it was emphasized that the two terms,
control and supervision, are two different things which differ one from the other in
meaning and extent. Thus in that case the Court has made the following digression: "In
administration law supervision means overseeing or the power or authority of an officer
to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill
them the former may take such action or step as prescribed by law to make them
perform their duties. Control, on the other hand, means the power of an officer to alter or
modify or nullify of set aside what a subordinate officer had done in the performance of
his duties and to substitute the judgment of the former for that of the latter." But from this
pronouncement it cannot be reasonably inferred that the power of supervision of the
President over local government officials does not include the power of investigation
when in his opinion the good of the public service so requires, as postulated in Section
64(c) of the Revised Administrative Code. ...35
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x x x x x x x x x
"Control" has been defined as "the power of an officer to alter or modify or nullify or set
aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for test of the latter." 36 "Supervision" on the other
hand means "overseeing or the power or authority of an officer to see that subordinate
officers perform their duties.37 As we held,38 however, "investigating" is not inconsistent
with "overseeing", although it is a lesser power than "altering". The impression is
apparently exacerbated by the Court's pronouncements in at least three cases, Lacson
v. Roque,39 Hebron v. Reyes,40 and Mondano v. Silvosa,41 and possibly, a fourth one,
Pelaez v. Auditor General.42 In Lacson, this Court said that the President enjoyed no
control powers but only supervision "as may be provided by law," 43 a rule we reiterated
in Hebron, and Mondano. In Pelaez, we stated that the President "may not . . . suspend
an elective official of a regular municipality or take any disciplinary action against him,
except on appeal from a decision of the corresponding provincial board."44 However,
neither Lacson nor Hebron nor Mondano categorically banned the Chief Executive from
exercising acts of disciplinary authority because she did not exercise control powers, but
because no law allowed her to exercise disciplinary authority. Thus, according
to Lacson:
The contention that the President has inherent power to remove or suspend municipal
officers is without doubt not well taken. Removal and suspension of public officers are
always controlled by the particular law applicable and its proper construction subject to
constitutional limitations.45
In Hebron we stated:
Accordingly, when the procedure for the suspension of an officer is specified by law, the
same must be deemed mandatory and adhered to strictly, in the absence of express or
clear provision to the contrary-which does not et with respect to municipal officers ...46
In Mondano, the Court held:
... The Congress has expressly and specifically lodged the provincial supervision over
municipal officials in the provincial governor who is authorized to "receive and
investigate complaints made under oath against municipal officers for neglect of duty,
oppression, corruption or other form of maladministration of office, and conviction by
final judgment of any crime involving moral turpitude." And if the charges are serious,
"he shall submit written charges touching the matter to the provincial board, furnishing a
copy of such charges to the accused either personally or by registered mail, and he may
in such case suspend the officer (not being the municipal treasurer) pending action by
the board, if in his opinion the charge by one affecting the official integrity of the officer in
question." Section 86 of the Revised Administration Code adds nothing to the power of
supervision to be exercised by the Department Head over the administration of ...
municipalities ... . If it be construed that it does and such additional power is the same
authority as that vested in the Department Head by section 79(c) of the Revised
Administrative Code, then such additional power must be deemed to have been
abrogated by Section 110(l), Article VII of the Constitution.47
x x x x x x x x x
In Pelaez, we stated that the President can not impose disciplinary measures on local
officials except on appeal from the provincial board pursuant to the Administrative
Code.48
Thus, in those case that this Court denied the President the power (to suspend/remove)
it was not because we did not think that the President can not exercise it on account of
his limited power, but because the law lodged the power elsewhere. But in those cases ii
which the law gave him the power, the Court, as in Ganzon v. Kayanan, found little
difficulty in sustaining him.49
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The Court does not believe that the petitioners can rightfully point to the debates of the
Constitutional Commission to defeat the President's powers. The Court believes that the
deliberations are by themselves inconclusive, because although Commissioner Jose
Nolledo would exclude the power of removal from the President, 50 Commissioner Blas
Ople would not.51
The Court is consequently reluctant to say that the new Constitution has repealed the
Local Government Code, Batas Blg. 37. As we said, "supervision" and "removal" are not
incompatible terms and one may stand with the other notwithstanding the stronger
expression of local autonomy under the new Charter. We have indeed held that in spite
of the approval of the Charter, Batas Blg. 337 is still in force and effect.52
As the Constitution itself declares, local autonomy means "a more responsive and
accountable local government structure instituted through a system of
decentralization."53 The Constitution as we observed, does nothing more than to break
up the monopoly of the national government over the affairs of local governments and as
put by political adherents, to "liberate the local governments from the imperialism of
Manila." Autonomy, however, is not meant to end the relation of partnership and inter-
dependence between the central administration and local government units, or
otherwise, to user in a regime of federalism. The Charter has not taken such a radical
step. Local governments, under the Constitution, are subject to regulation, however
limited, and for no other purpose than precisely, albeit paradoxically, to enhance self-
government.
As we observed in one case,54 decentralization means devolution of national

administration but not power to the local levels. Thus:
Now, autonomy is either decentralization of administration or decentralization of power.

There is decentralization of administration when the central government delegates
administrative powers to political subdivisions in order to broaden the base of
government power and in the process to make local governments "more responsive and
accountable," and "ensure their fullest development as self-reliant communities and
make them more effective partners in the pursuit of national development and social
progress." At the same time, it relieves the central government of the burden of
managing local affairs and enables it to concentrate on national concerns. The President
exercises "general supervision" over them, but only to "ensure that local affairs are
administered according to law." He has no control over their acts in the sense that he
can substitute their judgments with his own.
Decentralization of power, on the other hand, involves an abdication of political power in

the favor of local governments units declared to be autonomous, In that case, the
autonomous government is free to chart its own destiny and shape its future with
minimum intervention from central authorities. According to a constitutional author,
decentralization of power amounts to "self-immolation," since in that event, the
autonomous government becomes accountable not to the central authorities but to its
constituency.55
The successive sixty-day suspensions imposed on Mayor Rodolfo Ganzon is albeit

another matter. What bothers the Court, and what indeed looms very large, is the fact
that since the Mayor is facing ten administrative charges, the Mayor is in fact facing the
possibility of 600 days of suspension, in the event that all ten cases yield prima
facie findings. The Court is not of course tolerating misfeasance in public office
(assuming that Mayor Ganzon is guilty of misfeasance) but it is certainly another
question to make him serve 600 days of suspension, which is effectively, to suspend him
out of office. As we held:56
2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of
office does not expire until 1986. Were it not for this information and the suspension
decreed by the Sandiganbayan according to the Anti-Graft and Corrupt Practices Act, he
would have been all this while in the full discharge of his functions as such municipal
mayor. He was elected precisely to do so. As of October 26, 1983, he has been unable
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to. it is a basic assumption of the electoral process implicit in the right of suffrage that the
people are entitled to the services of elective officials of their choice. For misfeasance or
malfeasance, any of them could, of course, be proceeded against administratively or, as
in this instance, criminally. In either case, Ms culpability must be established. Moreover,
if there be a criminal action, he is entitled to the constitutional presumption of innocence.
A preventive suspension may be justified. Its continuance, however, for an unreasonable
length of time raises a due process question. For even if thereafter he were acquitted, in
the meanwhile his right to hold office had been nullified. Clearly, there would be in such
a case an injustice suffered by him. Nor is he the only victim. There is injustice inflicted
likewise on the people of Lianga They were deprived of the services of the man they had
elected to serve as mayor. In that sense, to paraphrase Justice Cardozo, the protracted
continuance of this preventive suspension had outrun the bounds of reason and resulted
in sheer oppression. A denial of due process is thus quite manifest. It is to avoid such an
unconstitutional application that the order of suspension should be lifted.57
The plain truth is that this Court has been ill at ease with suspensions, for the above
reasons,58 and so also, because it is out of the ordinary to have a vacancy in local
government. The sole objective of a suspension, as we have held, 59 is simply "to prevent
the accused from hampering the normal cause of the investigation with his influence and
authority over possible witnesses"60 or to keep him off "the records and other evidence.61
It is a means, and no more, to assist prosecutors in firming up a case, if any, against an

erring local official. Under the Local Government Code, it can not exceed sixty
days,62 which is to say that it need not be exactly sixty days long if a shorter period is
otherwise sufficient, and which is also to say that it ought to be lifted if prosecutors have
achieved their purpose in a shorter span.
Suspension is not a penalty and is not unlike preventive imprisonment in which the
accused is held to insure his presence at the trial. In both cases, the accused (the
respondent) enjoys a presumption of innocence unless and until found guilty.
Suspension finally is temporary and as the Local Government Code provides, it may be
imposed for no more than sixty days. As we held, 63 a longer suspension is unjust and
unreasonable, and we might add, nothing less than tyranny.
As we observed earlier, imposing 600 days of suspension which is not a remote

possibility Mayor Ganzon is to all intents and purposes, to make him spend the rest of
his term in inactivity. It is also to make, to all intents and purposes, his suspension
permanent.
It is also, in fact, to mete out punishment in spite of the fact that the Mayor's guilt has not
been proven. Worse, any absolution will be for naught because needless to say, the
length of his suspension would have, by the time he is reinstated, wiped out his tenure
considerably.
The Court is not to be mistaken for obstructing the efforts of the respondent Secretary to
see that justice is done in Iloilo City, yet it is hardly any argument to inflict on Mayor
Ganzon successive suspensions when apparently, the respondent Secretary has had
sufficient time to gather the necessary evidence to build a case against the Mayor
without suspending him a day longer. What is intriguing is that the respondent Secretary
has been cracking down, so to speak, on the Mayor piecemeal apparently, to pin him
down ten times the pain, when he, the respondent Secretary, could have pursued a
consolidated effort.
We reiterate that we are not precluding the President, through the Secretary of Interior
from exercising a legal power, yet we are of the opinion that the Secretary of Interior is
exercising that power oppressively, and needless to say, with a grave abuse of
discretion.
The Court is aware that only the third suspension is under questions, and that any talk of
future suspensions is in fact premature. The fact remains, however, that Mayor Ganzon
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has been made to serve a total of 120 days of suspension and the possibility of sixty
days more is arguably around the corner (which amounts to a violation of the Local
Government Code which brings to light a pattern of suspensions intended to suspend
the Mayor the rest of his natural tenure. The Court is simply foreclosing what appears to
us as a concerted effort of the State to perpetuate an arbitrary act.
As we said, we can not tolerate such a state of affairs.
We are therefore allowing Mayor Rodolfo Ganzon to suffer the duration of his third
suspension and lifting, for the purpose, the Temporary Restraining Order earlier issued.
Insofar as the seven remaining charges are concerned, we are urging the Department of
Local Government, upon the finality of this Decision, to undertake steps to expedite the
same, subject to Mayor Ganzon's usual remedies of appeal, judicial or administrative, or
certiorari, if warranted, and meanwhile, we are precluding the Secretary from meting out
further suspensions based on those remaining complaints, notwithstanding findings
of prima facie evidence.
In resume the Court is laying down the following rules:
1. Local autonomy, under the Constitution, involves a mere decentralization of

administration, not of power, in which local officials remain accountable to the central
government in the manner the law may provide;
2. The new Constitution does not prescribe federalism;
3. The change in constitutional language (with respect to the supervision clause) was
meant but to deny legislative control over local governments; it did not exempt the latter
from legislative regulations provided regulation is consistent with the fundamental
premise of autonomy;
4. Since local governments remain accountable to the national authority, the latter may,
by law, and in the manner set forth therein, impose disciplinary action against local
officials;
5. "Supervision" and "investigation" are not inconsistent terms; "investigation" does not
signify "control" (which the President does not have);
6. The petitioner, Mayor Rodolfo Ganzon. may serve the suspension so far ordered, but
may no longer be suspended for the offenses he was charged originally; provided:
a) that delays in the investigation of those charges "due to his fault, neglect or request,
(the time of the delay) shall not be counted in computing the time of suspension. [Supra,
sec. 63(3)]
b) that if during, or after the expiration of, his preventive suspension, the petitioner
commits another or other crimes and abuses for which proper charges are filed against
him by the aggrieved party or parties, his previous suspension shall not be a bar to his
being preventively suspended again, if warranted under subpar. (2), Section 63 of the
Local Government Code.
WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary

Restraining Order issued is LIFTED.1âwphi1 The suspensions of the petitioners
are AFFIRMED, provided that the petitioner, Mayor Rodolfo Ganzon, may not be
made to serve future suspensions on account of any of the remaining
administrative charges pending against him for acts committed prior to August
11, 1988. The Secretary of Interior is ORDERED to consolidate all such
administrative cases pending against Mayor Ganzon.
The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is
AFFIRMED. No costs.
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SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,

Gancayco, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ
concur.
Footnotes
1
G.R. No. 93252, 76; 77.
6
Id., 78. The first suspension was on the Cabaluna and Ortigoza complaints. CA-G.R.
No. 16417 was on the Erbite complaint. CA-G.R. No. 20736 was a challenge on the
designation of Vice- Mayor Malabor.
20
CONST., art. X, sec. 4.
CONST. (1935), art, X, sec. 10(l). The 1973 Constitution contained no similar
21
provision, but see art. VII, sec. 18.
24
Batas Blg. 337, sec. 62.
31
See supra, sec. 14, providing for regional development councils to be organized by the
President.
33
G.R. No. 95245, Id., 53; see Mendoza, J., Concurring.
Ganzon v. Kayanan, 104 Phil. 484 (1985). In this concurrence (Id., 48-61), Justice
34
Mendoza cited this case.
36
Mondano v. Silvosa, 97 Phil. 143,148 (1955).
38
Ganzon v. Kayanan, supra.
39
92 Phil. 456 (1953).
40
104 Phil. 175 (1958).
42
No. L-23825, December 24,1965,15 SCRA 569.
43
Lacson v. Roque, supra, 463.
44
Pelaez v. Auditor General, supra, 583.
45
Lacson v. Roque, supra, 462.
46
Hebron v. Reyes, supra, 185.
47
Mondano v. Silvosa, supra, 148.
48
Pelaez v. Auditor General, supra, 583.
49
G.R. No. 95245, Id., 50-51; see Mendoza, J., Concurring.
52
Bagabuyo v. Davide, G.R. No. 87233, September 21,1989.
54
Limbona v. Mangelin G.R. No. 80391, February 28,1989,170 SCRA 786.
56
Layno, Sr. v. Sandiganbayan, No. 65848, May 24, 1985, 136 SCRA 536,
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Lacson v. Roque, supra.
59
60
Supra, 469.
Batas Blg. 337, sec. 63.

61
63
Layno, Sr. v. Sandiganbayan, supra.
6. MANILA INTERNATIONAL AIRPORT AUTORITY, GR 155650, JULY 20, 2006
G.R. No. 155650 July 20, 2006
MANILA INTERNATIONAL AIRPORT AUTHORITY, petitioner,

vs.
COURT OF APPEALS, CITY OF PARAÑAQUE, CITY MAYOR OF PARAÑAQUE,
SANGGUNIANG PANGLUNGSOD NG PARAÑAQUE, CITY ASSESSOR OF
PARAÑAQUE, and CITY TREASURER OF PARAÑAQUE, respondents.
DECISION
CARPIO, J.: EN BANC
The Antecedents
Petitioner Manila International Airport Authority (MIAA) operates the Ninoy Aquino
International Airport (NAIA) Complex in Parañaque City under Executive Order No. 903,
otherwise known as the Revised Charter of the Manila International Airport
Authority ("MIAA Charter"). Executive Order No. 903 was issued on 21 July 1983 by
then President Ferdinand E. Marcos. Subsequently, Executive Order Nos. 9091 and
2982 amended the MIAA Charter.
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As operator of the international airport, MIAA administers the land, improvements and
equipment within the NAIA Complex. The MIAA Charter transferred to MIAA
approximately 600 hectares of land,3 including the runways and buildings ("Airport Lands
and Buildings") then under the Bureau of Air Transportation.4 The MIAA Charter further
provides that no portion of the land transferred to MIAA shall be disposed of through sale
or any other mode unless specifically approved by the President of the Philippines.5
On 21 March 1997, the Office of the Government Corporate Counsel (OGCC) issued
Opinion No. 061. The OGCC opined that the Local Government Code of 1991 withdrew
the exemption from real estate tax granted to MIAA under Section 21 of the MIAA
Charter. Thus, MIAA negotiated with respondent City of Parañaque to pay the real
estate tax imposed by the City. MIAA then paid some of the real estate tax already due.
On 28 June 2001, MIAA received Final Notices of Real Estate Tax Delinquency from the
City of Parañaque for the taxable years 1992 to 2001. MIAA's real estate tax
delinquency is broken down as follows:
TAX TAXABLE
TAX DUE PENALTY TOTAL
DECLARATION YEAR
E-016-01370 1992-2001 19,558,160.00 11,201,083.20 30,789,243.20
E-016-01374 1992-2001 111,689,424.90 68,149,479.59 179,838,904.49
E-016-01375 1992-2001 20,276,058.00 12,371,832.00 32,647,890.00
E-016-01376 1992-2001 58,144,028.00 35,477,712.00 93,621,740.00
E-016-01377 1992-2001 18,134,614.65 11,065,188.59 29,199,803.24
E-016-01378 1992-2001 111,107,950.40 67,794,681.59 178,902,631.99
E-016-01379 1992-2001 4,322,340.00 2,637,360.00 6,959,700.00
E-016-01380 1992-2001 7,776,436.00 4,744,944.00 12,521,380.00
*E-016-013-85 1998-2001 6,444,810.00 2,900,164.50 9,344,974.50
*E-016-01387 1998-2001 34,876,800.00 5,694,560.00 50,571,360.00
*E-016-01396 1998-2001 75,240.00 33,858.00 109,098.00
GRAND TOTAL P392,435,861.95 P232,070,863.47 P 624,506,725.42
1992-1997 RPT was paid on Dec. 24, 1997 as per O.R.#9476102 for P4,207,028.75
#9476101 for P28,676,480.00
#9476103 for P49,115.006
On 17 July 2001, the City of Parañaque, through its City Treasurer, issued notices of
levy and warrants of levy on the Airport Lands and Buildings. The Mayor of the City of
Parañaque threatened to sell at public auction the Airport Lands and Buildings should
MIAA fail to pay the real estate tax delinquency. MIAA thus sought a clarification of
OGCC Opinion No. 061.
On 9 August 2001, the OGCC issued Opinion No. 147 clarifying OGCC Opinion No. 061.
The OGCC pointed out that Section 206 of the Local Government Code requires
persons exempt from real estate tax to show proof of exemption. The OGCC opined that
Section 21 of the MIAA Charter is the proof that MIAA is exempt from real estate tax.
On 1 October 2001, MIAA filed with the Court of Appeals an original petition for
prohibition and injunction, with prayer for preliminary injunction or temporary restraining
order. The petition sought to restrain the City of Parañaque from imposing real estate tax
on, levying against, and auctioning for public sale the Airport Lands and Buildings. The
petition was docketed as CA-G.R. SP No. 66878.
On 5 October 2001, the Court of Appeals dismissed the petition because MIAA filed it
beyond the 60-day reglementary period. The Court of Appeals also denied on 27
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September 2002 MIAA's motion for reconsideration and supplemental motion for
reconsideration. Hence, MIAA filed on 5 December 2002 the present petition for review.7
Meanwhile, in January 2003, the City of Parañaque posted notices of auction sale at the
Barangay Halls of Barangays Vitalez, Sto. Niño, and Tambo, Parañaque City; in the
public market of Barangay La Huerta; and in the main lobby of the Parañaque City Hall.
The City of Parañaque published the notices in the 3 and 10 January 2003 issues of
the Philippine Daily Inquirer, a newspaper of general circulation in the Philippines. The
notices announced the public auction sale of the Airport Lands and Buildings to the
highest bidder on 7 February 2003, 10:00 a.m., at the Legislative Session Hall Building
of Parañaque City.
A day before the public auction, or on 6 February 2003, at 5:10 p.m., MIAA filed before
this Court an Urgent Ex-Parte and Reiteratory Motion for the Issuance of a Temporary
Restraining Order. The motion sought to restrain respondents — the City of Parañaque,
City Mayor of Parañaque, Sangguniang Panglungsod ng Parañaque, City Treasurer of
Parañaque, and the City Assessor of Parañaque ("respondents") — from auctioning the
Airport Lands and Buildings.
On 7 February 2003, this Court issued a temporary restraining order (TRO) effective
immediately. The Court ordered respondents to cease and desist from selling at public
auction the Airport Lands and Buildings. Respondents received the TRO on the same
day that the Court issued it. However, respondents received the TRO only at 1:25 p.m.
or three hours after the conclusion of the public auction.
On 10 February 2003, this Court issued a Resolution confirming nunc pro tunc the TRO.
On 29 March 2005, the Court heard the parties in oral arguments. In compliance with the
directive issued during the hearing, MIAA, respondent City of Parañaque, and the
Solicitor General subsequently submitted their respective Memoranda.
MIAA admits that the MIAA Charter has placed the title to the Airport Lands and
Buildings in the name of MIAA. However, MIAA points out that it cannot claim ownership
over these properties since the real owner of the Airport Lands and Buildings is the
Republic of the Philippines. The MIAA Charter mandates MIAA to devote the Airport
Lands and Buildings for the benefit of the general public. Since the Airport Lands and
Buildings are devoted to public use and public service, the ownership of these properties
remains with the State. The Airport Lands and Buildings are thus inalienable and are not
subject to real estate tax by local governments.
MIAA also points out that Section 21 of the MIAA Charter specifically exempts MIAA
from the payment of real estate tax. MIAA insists that it is also exempt from real estate
tax under Section 234 of the Local Government Code because the Airport Lands and
Buildings are owned by the Republic. To justify the exemption, MIAA invokes the
principle that the government cannot tax itself. MIAA points out that the reason for tax
exemption of public property is that its taxation would not inure to any public advantage,
since in such a case the tax debtor is also the tax creditor.
Respondents invoke Section 193 of the Local Government Code, which expressly

withdrew the tax exemption privileges of "government-owned and-controlled
corporations" upon the effectivity of the Local Government Code. Respondents also
argue that a basic rule of statutory construction is that the express mention of one
person, thing, or act excludes all others. An international airport is not among the
exceptions mentioned in Section 193 of the Local Government Code. Thus, respondents
assert that MIAA cannot claim that the Airport Lands and Buildings are exempt from real
estate tax.
Respondents also cite the ruling of this Court in Mactan International Airport v.
Marcos8 where we held that the Local Government Code has withdrawn the exemption
from real estate tax granted to international airports. Respondents further argue that
since MIAA has already paid some of the real estate tax assessments, it is now
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estopped from claiming that the Airport Lands and Buildings are exempt from real estate
tax.
The Issue
This petition raises the threshold issue of whether the Airport Lands and Buildings of
MIAA are exempt from real estate tax under existing laws. If so exempt, then the real
estate tax assessments issued by the City of Parañaque, and all proceedings taken
pursuant to such assessments, are void. In such event, the other issues raised in this
petition become moot.
The Court's Ruling
We rule that MIAA's Airport Lands and Buildings are exempt from real estate tax
imposed by local governments.
First, MIAA is not a government-owned or controlled corporation but

an instrumentality of the National Government and thus exempt from local
taxation. Second, the real properties of MIAA are owned by the Republic of the
Philippines and thus exempt from real estate tax.
1. MIAA is Not a Government-Owned or Controlled Corporation
Respondents argue that MIAA, being a government-owned or controlled corporation, is

not exempt from real estate tax. Respondents claim that the deletion of the phrase "any
government-owned or controlled so exempt by its charter" in Section 234(e) of the Local
Government Code withdrew the real estate tax exemption of government-owned or
controlled corporations. The deleted phrase appeared in Section 40(a) of the 1974 Real
Property Tax Code enumerating the entities exempt from real estate tax.
There is no dispute that a government-owned or controlled corporation is not exempt

from real estate tax. However, MIAA is not a government-owned or controlled
corporation. Section 2(13) of the Introductory Provisions of the Administrative Code of
1987 defines a government-owned or controlled corporation as follows:
SEC. 2. General Terms Defined. – x x x x
(13) Government-owned or controlled corporation refers to any agency organized as a

stock or non-stock corporation, vested with functions relating to public needs whether
governmental or proprietary in nature, and owned by the Government directly or through
its instrumentalities either wholly, or, where applicable as in the case of stock
corporations, to the extent of at least fifty-one (51) percent of its capital stock: x x x.
(Emphasis supplied)
A government-owned or controlled corporation must be "organized as a stock or non-

stock corporation." MIAA is not organized as a stock or non-stock corporation. MIAA is
not a stock corporation because it has no capital stock divided into shares. MIAA has
no stockholders or voting shares. Section 10 of the MIAA Charter9 provides:
SECTION 10. Capital. — The capital of the Authority to be contributed by the National

Government shall be increased from Two and One-half Billion (P2,500,000,000.00)
Pesos to Ten Billion (P10,000,000,000.00) Pesos to consist of:
(a) The value of fixed assets including airport facilities, runways and equipment and such
other properties, movable and immovable[,] which may be contributed by the National
Government or transferred by it from any of its agencies, the valuation of which shall be
determined jointly with the Department of Budget and Management and the Commission
on Audit on the date of such contribution or transfer after making due allowances for
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depreciation and other deductions taking into account the loans and other liabilities of
the Authority at the time of the takeover of the assets and other properties;
(b) That the amount of P605 million as of December 31, 1986 representing about
seventy percentum (70%) of the unremitted share of the National Government from 1983
to 1986 to be remitted to the National Treasury as provided for in Section 11 of E. O. No.
903 as amended, shall be converted into the equity of the National Government in the
Authority. Thereafter, the Government contribution to the capital of the Authority shall be
provided in the General Appropriations Act.
Clearly, under its Charter, MIAA does not have capital stock that is divided into shares.
Section 3 of the Corporation Code10 defines a stock corporation as one whose "capital

stock is divided into shares and x x x authorized to distribute to the holders of
such shares dividends x x x." MIAA has capital but it is not divided into shares of
stock. MIAA has no stockholders or voting shares. Hence, MIAA is not a stock
corporation.
MIAA is also not a non-stock corporation because it has no members. Section 87 of the
Corporation Code defines a non-stock corporation as "one where no part of its income is
distributable as dividends to its members, trustees or officers." A non-stock corporation
must have members. Even if we assume that the Government is considered as the sole
member of MIAA, this will not make MIAA a non-stock corporation. Non-stock
corporations cannot distribute any part of their income to their members. Section 11 of
the MIAA Charter mandates MIAA to remit 20% of its annual gross operating income to
the National Treasury.11 This prevents MIAA from qualifying as a non-stock corporation.
Section 88 of the Corporation Code provides that non-stock corporations are "organized
for charitable, religious, educational, professional, cultural, recreational, fraternal,
literary, scientific, social, civil service, or similar purposes, like trade, industry, agriculture
and like chambers." MIAA is not organized for any of these purposes. MIAA, a public
utility, is organized to operate an international and domestic airport for public use.
Since MIAA is neither a stock nor a non-stock corporation, MIAA does not qualify as a
government-owned or controlled corporation. What then is the legal status of MIAA
within the National Government?
MIAA is a government instrumentality vested with corporate powers to perform

efficiently its governmental functions. MIAA is like any other government instrumentality,
the only difference is that MIAA is vested with corporate powers. Section 2(10) of the
Introductory Provisions of the Administrative Code defines a government
"instrumentality" as follows:
SEC. 2. General Terms Defined. –– x x x x
(10) Instrumentality refers to any agency of the National Government, not integrated

within the department framework, vested with special functions or jurisdiction by
law, endowed with some if not all corporate powers, administering special funds, and
enjoying operational autonomy, usually through a charter. x x x (Emphasis supplied)
When the law vests in a government instrumentality corporate powers, the

instrumentality does not become a corporation. Unless the government instrumentality is
organized as a stock or non-stock corporation, it remains a government instrumentality
exercising not only governmental but also corporate powers. Thus, MIAA exercises the
governmental powers of eminent domain,12 police authority13 and the levying of fees and
charges.14 At the same time, MIAA exercises "all the powers of a corporation under the
Corporation Law, insofar as these powers are not inconsistent with the provisions of this
Executive Order."15
Likewise, when the law makes a government instrumentality operationally

autonomous, the instrumentality remains part of the National Government machinery
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although not integrated with the department framework. The MIAA Charter expressly
states that transforming MIAA into a "separate and autonomous body" 16 will make its
operation more "financially viable."17
Many government instrumentalities are vested with corporate powers but they do not
become stock or non-stock corporations, which is a necessary condition before an
agency or instrumentality is deemed a government-owned or controlled corporation.
Examples are the Mactan International Airport Authority, the Philippine Ports Authority,
the University of the Philippines and Bangko Sentral ng Pilipinas. All these government
instrumentalities exercise corporate powers but they are not organized as stock or non-
stock corporations as required by Section 2(13) of the Introductory Provisions of the
Administrative Code. These government instrumentalities are sometimes loosely called
government corporate entities. However, they are not government-owned or controlled
corporations in the strict sense as understood under the Administrative Code, which is
the governing law defining the legal relationship and status of government entities.
A government instrumentality like MIAA falls under Section 133(o) of the Local

Government Code, which states:
SEC. 133. Common Limitations on the Taxing Powers of Local Government Units.

– Unless otherwise provided herein, the exercise of the taxing powers of
provinces, cities, municipalities, and barangays shall not extend to the levy of the
following:
xxxx
(o) Taxes, fees or charges of any kind on the National Government, its agencies
and instrumentalities and local government units.(Emphasis and underscoring
supplied)
Section 133(o) recognizes the basic principle that local governments cannot tax the
national government, which historically merely delegated to local governments the power
to tax. While the 1987 Constitution now includes taxation as one of the powers of local
governments, local governments may only exercise such power "subject to such
guidelines and limitations as the Congress may provide."18
When local governments invoke the power to tax on national government

instrumentalities, such power is construed strictly against local governments. The rule is
that a tax is never presumed and there must be clear language in the law imposing the
tax. Any doubt whether a person, article or activity is taxable is resolved against taxation.
This rule applies with greater force when local governments seek to tax national
government instrumentalities.
Another rule is that a tax exemption is strictly construed against the taxpayer claiming
the exemption. However, when Congress grants an exemption to a national government
instrumentality from local taxation, such exemption is construed liberally in favor of the
national government instrumentality. As this Court declared in Maceda v. Macaraig, Jr.:
The reason for the rule does not apply in the case of exemptions running to the benefit
of the government itself or its agencies. In such case the practical effect of an exemption
is merely to reduce the amount of money that has to be handled by government in the
course of its operations. For these reasons, provisions granting exemptions to
government agencies may be construed liberally, in favor of non tax-liability of such
agencies.19
There is, moreover, no point in national and local governments taxing each other, unless
a sound and compelling policy requires such transfer of public funds from one
government pocket to another.
There is also no reason for local governments to tax national government

instrumentalities for rendering essential public services to inhabitants of local
WEEK 3
governments. The only exception is when the legislature clearly intended to tax
government instrumentalities for the delivery of essential public services for
sound and compelling policy considerations. There must be express language in the
law empowering local governments to tax national government instrumentalities. Any
doubt whether such power exists is resolved against local governments.
Thus, Section 133 of the Local Government Code states that "unless otherwise
provided" in the Code, local governments cannot tax national government
instrumentalities. As this Court held in Basco v. Philippine Amusements and Gaming
Corporation:
The states have no power by taxation or otherwise, to retard, impede, burden or in any
manner control the operation of constitutional laws enacted by Congress to carry into
execution the powers vested in the federal government. (MC Culloch v. Maryland, 4
Wheat 316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over local
governments.
"Justice Holmes, speaking for the Supreme Court, made reference to the entire absence
of power on the part of the States to touch, in that way (taxation) at least, the
instrumentalities of the United States (Johnson v. Maryland, 254 US 51) and it can be
agreed that no state or political subdivision can regulate a federal instrumentality in such
a way as to prevent it from consummating its federal responsibilities, or even to seriously
burden it in the accomplishment of them." (Antieau, Modern Constitutional Law, Vol. 2, p.
140, emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru extermination of
what local authorities may perceive to be undesirable activities or enterprise using the
power to tax as "a tool for regulation" (U.S. v. Sanchez, 340 US 42).
The power to tax which was called by Justice Marshall as the "power to destroy" (Mc
Culloch v. Maryland, supra) cannot be allowed to defeat an instrumentality or creation of
the very entity which has the inherent power to wield it. 20
2. Airport Lands and Buildings of MIAA are Owned by the Republic
a. Airport Lands and Buildings are of Public Dominion
The Airport Lands and Buildings of MIAA are property of public dominion and
therefore owned by the State or the Republic of the Philippines. The Civil Code
provides:
ARTICLE 419. Property is either of public dominion or of private ownership.
ARTICLE 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals, rivers,

torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and
others of similar character;
(2) Those which belong to the State, without being for public use, and are intended for
some public service or for the development of the national wealth. (Emphasis supplied)
ARTICLE 421. All other property of the State, which is not of the character stated in the
preceding article, is patrimonial property.
ARTICLE 422. Property of public dominion, when no longer intended for public use or for
public service, shall form part of the patrimonial property of the State.
WEEK 3
No one can dispute that properties of public dominion mentioned in Article 420 of the
Civil Code, like "roads, canals, rivers, torrents, ports and bridges constructed by
the State," are owned by the State. The term "ports" includes seaports and airports.
The MIAA Airport Lands and Buildings constitute a "port" constructed by the State.
Under Article 420 of the Civil Code, the MIAA Airport Lands and Buildings are properties
of public dominion and thus owned by the State or the Republic of the Philippines.
The Airport Lands and Buildings are devoted to public use because they are used by
the public for international and domestic travel and transportation. The fact that the
MIAA collects terminal fees and other charges from the public does not remove the
character of the Airport Lands and Buildings as properties for public use. The operation
by the government of a tollway does not change the character of the road as one for
public use. Someone must pay for the maintenance of the road, either the public
indirectly through the taxes they pay the government, or only those among the public
who actually use the road through the toll fees they pay upon using the road. The tollway
system is even a more efficient and equitable manner of taxing the public for the
maintenance of public roads.
The charging of fees to the public does not determine the character of the property
whether it is of public dominion or not. Article 420 of the Civil Code defines property of
public dominion as one "intended for public use." Even if the government collects toll
fees, the road is still "intended for public use" if anyone can use the road under the same
terms and conditions as the rest of the public. The charging of fees, the limitation on the
kind of vehicles that can use the road, the speed restrictions and other conditions for the
use of the road do not affect the public character of the road.
The terminal fees MIAA charges to passengers, as well as the landing fees MIAA
charges to airlines, constitute the bulk of the income that maintains the operations of
MIAA. The collection of such fees does not change the character of MIAA as an airport
for public use. Such fees are often termed user's tax. This means taxing those among
the public who actually use a public facility instead of taxing all the public including those
who never use the particular public facility. A user's tax is more equitable — a principle
of taxation mandated in the 1987 Constitution.21
The Airport Lands and Buildings of MIAA, which its Charter calls the "principal airport of
the Philippines for both international and domestic air traffic," 22 are properties of public
dominion because they are intended for public use. As properties of public dominion,
they indisputably belong to the State or the Republic of the Philippines.
b. Airport Lands and Buildings are Outside the Commerce of Man
The Airport Lands and Buildings of MIAA are devoted to public use and thus are
properties of public dominion. As properties of public dominion, the Airport Lands
and Buildings are outside the commerce of man. The Court has ruled repeatedly that
properties of public dominion are outside the commerce of man. As early as 1915, this
Court already ruled in Municipality of Cavite v. Rojas that properties devoted to public
use are outside the commerce of man, thus:
According to article 344 of the Civil Code: "Property for public use in provinces and in
towns comprises the provincial and town roads, the squares, streets, fountains, and
public waters, the promenades, and public works of general service supported by said
towns or provinces."
The said Plaza Soledad being a promenade for public use, the municipal council of
Cavite could not in 1907 withdraw or exclude from public use a portion thereof in order to
lease it for the sole benefit of the defendant Hilaria Rojas. In leasing a portion of said
plaza or public place to the defendant for private use the plaintiff municipality exceeded
its authority in the exercise of its powers by executing a contract over a thing of which it
could not dispose, nor is it empowered so to do.
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The Civil Code, article 1271, prescribes that everything which is not outside the
commerce of man may be the object of a contract, and plazas and streets are outside
of this commerce, as was decided by the supreme court of Spain in its decision of
February 12, 1895, which says: "Communal things that cannot be sold because they
are by their very nature outside of commerce are those for public use, such as the
plazas, streets, common lands, rivers, fountains, etc." (Emphasis supplied) 23
Again in Espiritu v. Municipal Council, the Court declared that properties of public
dominion are outside the commerce of man:
xxx Town plazas are properties of public dominion, to be devoted to public use and to
be made available to the public in general. They are outside the commerce of
man and cannot be disposed of or even leased by the municipality to private parties.
While in case of war or during an emergency, town plazas may be occupied temporarily
by private individuals, as was done and as was tolerated by the Municipality of
Pozorrubio, when the emergency has ceased, said temporary occupation or use must
also cease, and the town officials should see to it that the town plazas should ever be
kept open to the public and free from encumbrances or illegal private
constructions.24 (Emphasis supplied)
The Court has also ruled that property of public dominion, being outside the commerce
of man, cannot be the subject of an auction sale.25
Properties of public dominion, being for public use, are not subject to levy, encumbrance
or disposition through public or private sale. Any encumbrance, levy on execution or
auction sale of any property of public dominion is void for being contrary to public policy.
Essential public services will stop if properties of public dominion are subject to
encumbrances, foreclosures and auction sale. This will happen if the City of Parañaque
can foreclose and compel the auction sale of the 600-hectare runway of the MIAA for
non-payment of real estate tax.
Before MIAA can encumber26 the Airport Lands and Buildings, the President must
first withdraw from public use the Airport Lands and Buildings. Sections 83 and 88 of
the Public Land Law or Commonwealth Act No. 141, which "remains to this day the
existing general law governing the classification and disposition of lands of the public
domain other than timber and mineral lands,"27 provide:
SECTION 83. Upon the recommendation of the Secretary of Agriculture and Natural
Resources, the President may designate by proclamation any tract or tracts of land of
the public domain as reservations for the use of the Republic of the Philippines or of any
of its branches, or of the inhabitants thereof, in accordance with regulations prescribed
for this purposes, or for quasi-public uses or purposes when the public interest requires
it, including reservations for highways, rights of way for railroads, hydraulic power sites,
irrigation systems, communal pastures or lequas communales, public parks, public
quarries, public fishponds, working men's village and other improvements for the public
benefit.
SECTION 88. The tract or tracts of land reserved under the provisions of Section
eighty-three shall be non-alienable and shall not be subject to occupation, entry,
sale, lease, or other disposition until again declared alienable under the
provisions of this Act or by proclamation of the President. (Emphasis and
underscoring supplied)
Thus, unless the President issues a proclamation withdrawing the Airport Lands and
Buildings from public use, these properties remain properties of public dominion and
are inalienable. Since the Airport Lands and Buildings are inalienable in their present
status as properties of public dominion, they are not subject to levy on execution or
foreclosure sale. As long as the Airport Lands and Buildings are reserved for public use,
their ownership remains with the State or the Republic of the Philippines.
WEEK 3
The authority of the President to reserve lands of the public domain for public use, and
to withdraw such public use, is reiterated in Section 14, Chapter 4, Title I, Book III of the
Administrative Code of 1987, which states:
SEC. 14. Power to Reserve Lands of the Public and Private Domain of the Government.
— (1) The President shall have the power to reserve for settlement or public use,
and for specific public purposes, any of the lands of the public domain, the use of
which is not otherwise directed by law. The reserved land shall thereafter remain
subject to the specific public purpose indicated until otherwise provided by law or
proclamation;
There is no question, therefore, that unless the Airport Lands and Buildings are
withdrawn by law or presidential proclamation from public use, they are properties of
public dominion, owned by the Republic and outside the commerce of man.
c. MIAA is a Mere Trustee of the Republic
MIAA is merely holding title to the Airport Lands and Buildings in trust for the Republic.
Section 48, Chapter 12, Book I of the Administrative Code allows instrumentalities
like MIAA to hold title to real properties owned by the Republic, thus:
SEC. 48. Official Authorized to Convey Real Property. — Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:
(1) For property belonging to and titled in the name of the Republic of the Philippines, by
the President, unless the authority therefor is expressly vested by law in another officer.
(2) For property belonging to the Republic of the Philippines but titled in the name
of any political subdivision or of any corporate agency or instrumentality, by the
executive head of the agency or instrumentality. (Emphasis supplied)
In MIAA's case, its status as a mere trustee of the Airport Lands and Buildings is clearer
because even its executive head cannot sign the deed of conveyance on behalf of the
Republic. Only the President of the Republic can sign such deed of conveyance.28
d. Transfer to MIAA was Meant to Implement a Reorganization
The MIAA Charter, which is a law, transferred to MIAA the title to the Airport Lands and
Buildings from the Bureau of Air Transportation of the Department of Transportation and
Communications. The MIAA Charter provides:
SECTION 3. Creation of the Manila International Airport Authority. — x x x x
The land where the Airport is presently located as well as the surrounding land
area of approximately six hundred hectares, are hereby transferred, conveyed and
assigned to the ownership and administration of the Authority, subject to existing
rights, if any. The Bureau of Lands and other appropriate government agencies shall
undertake an actual survey of the area transferred within one year from the promulgation
of this Executive Order and the corresponding title to be issued in the name of the
Authority. Any portion thereof shall not be disposed through sale or through any
other mode unless specifically approved by the President of the Philippines.
(Emphasis supplied)
SECTION 22. Transfer of Existing Facilities and Intangible Assets. — All existing public

airport facilities, runways, lands, buildings and other property, movable or
immovable, belonging to the Airport, and all assets, powers, rights, interests and
privileges belonging to the Bureau of Air Transportation relating to airport works or
WEEK 3
air operations, including all equipment which are necessary for the operation of crash fire
and rescue facilities, are hereby transferred to the Authority. (Emphasis supplied)
SECTION 25. Abolition of the Manila International Airport as a Division in the Bureau of

Air Transportation and Transitory Provisions. — The Manila International Airport
including the Manila Domestic Airport as a division under the Bureau of Air
Transportation is hereby abolished.
The MIAA Charter transferred the Airport Lands and Buildings to MIAA without the
Republic receiving cash, promissory notes or even stock since MIAA is not a stock
corporation.
The whereas clauses of the MIAA Charter explain the rationale for the transfer of the
Airport Lands and Buildings to MIAA, thus:
WHEREAS, the Manila International Airport as the principal airport of the Philippines for
both international and domestic air traffic, is required to provide standards of airport
accommodation and service comparable with the best airports in the world;
WHEREAS, domestic and other terminals, general aviation and other facilities, have to
be upgraded to meet the current and future air traffic and other demands of aviation in
Metro Manila;
WHEREAS, a management and organization study has indicated that the objectives of

providing high standards of accommodation and service within the context of a
financially viable operation, will best be achieved by a separate and autonomous
body; and
WHEREAS, under Presidential Decree No. 1416, as amended by Presidential Decree

No. 1772, the President of the Philippines is given continuing authority to reorganize
the National Government, which authority includes the creation of new entities,
agencies and instrumentalities of the Government[.] (Emphasis supplied)
The transfer of the Airport Lands and Buildings from the Bureau of Air Transportation to
MIAA was not meant to transfer beneficial ownership of these assets from the Republic
to MIAA. The purpose was merely to reorganize a division in the Bureau of Air
Transportation into a separate and autonomous body. The Republic remains the
beneficial owner of the Airport Lands and Buildings. MIAA itself is owned solely by the
Republic. No party claims any ownership rights over MIAA's assets adverse to the
Republic.
The MIAA Charter expressly provides that the Airport Lands and Buildings "shall not be
disposed through sale or through any other mode unless specifically approved by
the President of the Philippines." This only means that the Republic retained the
beneficial ownership of the Airport Lands and Buildings because under Article 428 of the
Civil Code, only the "owner has the right to x x x dispose of a thing." Since MIAA cannot
dispose of the Airport Lands and Buildings, MIAA does not own the Airport Lands and
Buildings.
At any time, the President can transfer back to the Republic title to the Airport Lands and
Buildings without the Republic paying MIAA any consideration. Under Section 3 of the
MIAA Charter, the President is the only one who can authorize the sale or disposition of
the Airport Lands and Buildings. This only confirms that the Airport Lands and Buildings
belong to the Republic.
e. Real Property Owned by the Republic is Not Taxable
Section 234(a) of the Local Government Code exempts from real estate tax any "[r]eal
property owned by the Republic of the Philippines." Section 234(a) provides:
WEEK 3
SEC. 234. Exemptions from Real Property Tax. — The following are exempted from
payment of the real property tax:
(a) Real property owned by the Republic of the Philippines or any of its political
subdivisions except when the beneficial use thereof has been granted, for
consideration or otherwise, to a taxable person;
x x x. (Emphasis supplied)
This exemption should be read in relation with Section 133(o) of the same Code, which
prohibits local governments from imposing "[t]axes, fees or charges of any kind on the
National Government, its agencies and instrumentalities x x x." The real properties
owned by the Republic are titled either in the name of the Republic itself or in the name
of agencies or instrumentalities of the National Government. The Administrative Code
allows real property owned by the Republic to be titled in the name of agencies or
instrumentalities of the national government. Such real properties remain owned by the
Republic and continue to be exempt from real estate tax.
The Republic may grant the beneficial use of its real property to an agency or
instrumentality of the national government. This happens when title of the real property
is transferred to an agency or instrumentality even as the Republic remains the owner of
the real property. Such arrangement does not result in the loss of the tax exemption.
Section 234(a) of the Local Government Code states that real property owned by the
Republic loses its tax exemption only if the "beneficial use thereof has been granted, for
consideration or otherwise, to a taxable person." MIAA, as a government
instrumentality, is not a taxable person under Section 133(o) of the Local Government
Code. Thus, even if we assume that the Republic has granted to MIAA the beneficial use
of the Airport Lands and Buildings, such fact does not make these real properties subject
to real estate tax.
However, portions of the Airport Lands and Buildings that MIAA leases to private entities
are not exempt from real estate tax. For example, the land area occupied by hangars
that MIAA leases to private corporations is subject to real estate tax. In such a case,
MIAA has granted the beneficial use of such land area for a consideration to a taxable
person and therefore such land area is subject to real estate tax. In Lung Center of the
Philippines v. Quezon City, the Court ruled:
Accordingly, we hold that the portions of the land leased to private entities as well as
those parts of the hospital leased to private individuals are not exempt from such taxes.
On the other hand, the portions of the land occupied by the hospital and portions of the
hospital used for its patients, whether paying or non-paying, are exempt from real
property taxes.29
3. Refutation of Arguments of Minority
The minority asserts that the MIAA is not exempt from real estate tax because Section
193 of the Local Government Code of 1991 withdrew the tax exemption of "all persons,
whether natural or juridical" upon the effectivity of the Code. Section 193 provides:
SEC. 193. Withdrawal of Tax Exemption Privileges – Unless otherwise provided in

this Code, tax exemptions or incentives granted to, or presently enjoyed by all
persons, whether natural or juridical, including government-owned or controlled
corporations, except local water districts, cooperatives duly registered under R.A. No.
6938, non-stock and non-profit hospitals and educational institutions are hereby
withdrawn upon effectivity of this Code. (Emphasis supplied)
The minority states that MIAA is indisputably a juridical person. The minority argues
that since the Local Government Code withdrew the tax exemption of all juridical
persons, then MIAA is not exempt from real estate tax. Thus, the minority declares:
WEEK 3
It is evident from the quoted provisions of the Local Government Code that the
withdrawn exemptions from realty tax cover not just GOCCs, but all persons. To
repeat, the provisions lay down the explicit proposition that the withdrawal of realty tax
exemption applies to all persons. The reference to or the inclusion of GOCCs is only
clarificatory or illustrative of the explicit provision.
The term "All persons" encompasses the two classes of persons recognized
under our laws, natural and juridical persons. Obviously, MIAA is not a natural
person. Thus, the determinative test is not just whether MIAA is a GOCC, but
whether MIAA is a juridical person at all. (Emphasis and underscoring in the original)
The minority posits that the "determinative test" whether MIAA is exempt from local
taxation is its status — whether MIAA is a juridical person or not. The minority also
insists that "Sections 193 and 234 may be examined in isolation from Section 133(o) to
ascertain MIAA's claim of exemption."
The argument of the minority is fatally flawed. Section 193 of the Local Government
Code expressly withdrew the tax exemption of all juridical persons "[u]nless otherwise
provided in this Code." Now, Section 133(o) of the Local Government Code expressly
provides otherwise, specifically prohibiting local governments from imposing any kind
of tax on national government instrumentalities. Section 133(o) states:
SEC. 133. Common Limitations on the Taxing Powers of Local Government Units. –

Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities,
municipalities, and barangays shall not extend to the levy of the following:
xxxx
(o) Taxes, fees or charges of any kinds on the National Government, its agencies and
instrumentalities, and local government units. (Emphasis and underscoring supplied)
By express mandate of the Local Government Code, local governments cannot impose
any kind of tax on national government instrumentalities like the MIAA. Local
governments are devoid of power to tax the national government, its agencies and
instrumentalities. The taxing powers of local governments do not extend to the national
government, its agencies and instrumentalities, "[u]nless otherwise provided in this
Code" as stated in the saving clause of Section 133. The saving clause refers to Section
234(a) on the exception to the exemption from real estate tax of real property owned by
the Republic.
The minority, however, theorizes that unless exempted in Section 193 itself, all juridical
persons are subject to tax by local governments. The minority insists that the juridical
persons exempt from local taxation are limited to the three classes of entities specifically
enumerated as exempt in Section 193. Thus, the minority states:
x x x Under Section 193, the exemption is limited to (a) local water districts; (b)
cooperatives duly registered under Republic Act No. 6938; and (c) non-stock and non-
profit hospitals and educational institutions. It would be belaboring the obvious why the
MIAA does not fall within any of the exempt entities under Section 193. (Emphasis
supplied)
The minority's theory directly contradicts and completely negates Section 133(o) of the
Local Government Code. This theory will result in gross absurdities. It will make the
national government, which itself is a juridical person, subject to tax by local
governments since the national government is not included in the enumeration of
exempt entities in Section 193. Under this theory, local governments can impose any
kind of local tax, and not only real estate tax, on the national government.
Under the minority's theory, many national government instrumentalities with juridical
personalities will also be subject to any kind of local tax, and not only real estate tax.
Some of the national government instrumentalities vested by law with juridical
WEEK 3
personalities are: Bangko Sentral ng Pilipinas,30 Philippine Rice Research
Institute,31 Laguna Lake
Development Authority,32 Fisheries Development Authority,33 Bases Conversion

Development Authority,34 Philippine Ports Authority,35 Cagayan de Oro Port
Authority,36 San Fernando Port Authority,37 Cebu Port Authority,38 and Philippine National
Railways.39
The minority's theory violates Section 133(o) of the Local Government Code which
expressly prohibits local governments from imposing any kind of tax on national
government instrumentalities. Section 133(o) does not distinguish between national
government instrumentalities with or without juridical personalities. Where the law does
not distinguish, courts should not distinguish. Thus, Section 133(o) applies to all national
government instrumentalities, with or without juridical personalities. The determinative
test whether MIAA is exempt from local taxation is not whether MIAA is a juridical
person, but whether it is a national government instrumentality under Section 133(o) of
the Local Government Code. Section 133(o) is the specific provision of law prohibiting
local governments from imposing any kind of tax on the national government, its
agencies and instrumentalities.
Section 133 of the Local Government Code starts with the saving clause "[u]nless
otherwise provided in this Code." This means that unless the Local Government Code
grants an express authorization, local governments have no power to tax the national
government, its agencies and instrumentalities. Clearly, the rule is local governments
have no power to tax the national government, its agencies and instrumentalities. As an
exception to this rule, local governments may tax the national government, its agencies
and instrumentalities only if the Local Government Code expressly so provides.
The saving clause in Section 133 refers to the exception to the exemption in Section
234(a) of the Code, which makes the national government subject to real estate tax
when it gives the beneficial use of its real properties to a taxable entity. Section 234(a) of
the Local Government Code provides:
SEC. 234. Exemptions from Real Property Tax – The following are exempted from
subdivisions except when the beneficial use thereof has been granted, for consideration
or otherwise, to a taxable person.
Under Section 234(a), real property owned by the Republic is exempt from real estate
tax. The exception to this exemption is when the government gives the beneficial use of
the real property to a taxable entity.
The exception to the exemption in Section 234(a) is the only instance when the national
government, its agencies and instrumentalities are subject to any kind of tax by local
governments. The exception to the exemption applies only to real estate tax and not to
any other tax. The justification for the exception to the exemption is that the real
property, although owned by the Republic, is not devoted to public use or public service
but devoted to the private gain of a taxable person.
The minority also argues that since Section 133 precedes Section 193 and 234 of the
Local Government Code, the later provisions prevail over Section 133. Thus, the
minority asserts:
x x x Moreover, sequentially Section 133 antecedes Section 193 and 234. Following an
accepted rule of construction, in case of conflict the subsequent provisions should
prevail. Therefore, MIAA, as a juridical person, is subject to real property taxes, the
general exemptions attaching to instrumentalities under Section 133(o) of the Local
Government Code being qualified by Sections 193 and 234 of the same law. (Emphasis
supplied)
WEEK 3
The minority assumes that there is an irreconcilable conflict between Section 133 on one
hand, and Sections 193 and 234 on the other. No one has urged that there is such a
conflict, much less has any one presenteda persuasive argument that there is such a
conflict. The minority's assumption of an irreconcilable conflict in the statutory provisions
is an egregious error for two reasons.
First, there is no conflict whatsoever between Sections 133 and 193 because Section
193 expressly admits its subordination to other provisions of the Code when Section 193
states "[u]nless otherwise provided in this Code." By its own words, Section 193 admits
the superiority of other provisions of the Local Government Code that limit the exercise
of the taxing power in Section 193. When a provision of law grants a power but withholds
such power on certain matters, there is no conflict between the grant of power and the
withholding of power. The grantee of the power simply cannot exercise the power on
matters withheld from its power.
Second, Section 133 is entitled "Common Limitations on the Taxing Powers of Local
Government Units." Section 133 limits the grant to local governments of the power to
tax, and not merely the exercise of a delegated power to tax. Section 133 states that the
taxing powers of local governments "shall not extend to the levy" of any kind of tax on
the national government, its agencies and instrumentalities. There is no clearer limitation
on the taxing power than this.
Since Section 133 prescribes the "common limitations" on the taxing powers of local
governments, Section 133 logically prevails over Section 193 which grants local
governments such taxing powers. By their very meaning and purpose, the "common
limitations" on the taxing power prevail over the grant or exercise of the taxing power. If
the taxing power of local governments in Section 193 prevails over the limitations on
such taxing power in Section 133, then local governments can impose any kind of tax on
the national government, its agencies and instrumentalities — a gross absurdity.
Local governments have no power to tax the national government, its agencies and
instrumentalities, except as otherwise provided in the Local Government Code pursuant
to the saving clause in Section 133 stating "[u]nless otherwise provided in this Code."
This exception — which is an exception to the exemption of the Republic from real
estate tax imposed by local governments — refers to Section 234(a) of the Code. The
exception to the exemption in Section 234(a) subjects real property owned by the
Republic, whether titled in the name of the national government, its agencies or
instrumentalities, to real estate tax if the beneficial use of such property is given to a
taxable entity.
The minority also claims that the definition in the Administrative Code of the phrase
"government-owned or controlled corporation" is not controlling. The minority points out
that Section 2 of the Introductory Provisions of the Administrative Code admits that its
definitions are not controlling when it provides:
SEC. 2. General Terms Defined. — Unless the specific words of the text, or the context
as a whole, or a particular statute, shall require a different meaning:
xxxx
The minority then concludes that reliance on the Administrative Code definition is
"flawed."
The minority's argument is a non sequitur. True, Section 2 of the Administrative Code
recognizes that a statute may require a different meaning than that defined in the
Administrative Code. However, this does not automatically mean that the definition in the
Administrative Code does not apply to the Local Government Code. Section 2 of the
Administrative Code clearly states that "unless the specific words x x x of a particular
statute shall require a different meaning," the definition in Section 2 of the Administrative
Code shall apply. Thus, unless there is specific language in the Local Government Code
WEEK 3
defining the phrase "government-owned or controlled corporation" differently from the
definition in the Administrative Code, the definition in the Administrative Code prevails.
The minority does not point to any provision in the Local Government Code defining the
phrase "government-owned or controlled corporation" differently from the definition in the
Administrative Code. Indeed, there is none. The Local Government Code is silent on the
definition of the phrase "government-owned or controlled corporation." The
Administrative Code, however, expressly defines the phrase "government-owned or
controlled corporation." The inescapable conclusion is that the Administrative Code
definition of the phrase "government-owned or controlled corporation" applies to the
Local Government Code.
The third whereas clause of the Administrative Code states that the Code "incorporates
in a unified document the major structural, functional and procedural principles and rules
of governance." Thus, the Administrative Code is the governing law defining the status
and relationship of government departments, bureaus, offices, agencies and
instrumentalities. Unless a statute expressly provides for a different status and
relationship for a specific government unit or entity, the provisions of the Administrative
Code prevail.
The minority also contends that the phrase "government-owned or controlled

corporation" should apply only to corporations organized under the Corporation Code,
the general incorporation law, and not to corporations created by special charters. The
minority sees no reason why government corporations with special charters should have
a capital stock. Thus, the minority declares:
I submit that the definition of "government-owned or controlled corporations" under the

Administrative Code refer to those corporations owned by the government or its
instrumentalities which are created not by legislative enactment, but formed and
organized under the Corporation Code through registration with the Securities and
Exchange Commission. In short, these are GOCCs without original charters.
It might as well be worth pointing out that there is no point in requiring a capital structure
for GOCCs whose full ownership is limited by its charter to the State or Republic. Such
GOCCs are not empowered to declare dividends or alienate their capital shares.
The contention of the minority is seriously flawed. It is not in accord with the Constitution
and existing legislations. It will also result in gross absurdities.
First, the Administrative Code definition of the phrase "government-owned or controlled

corporation" does not distinguish between one incorporated under the Corporation Code
or under a special charter. Where the law does not distinguish, courts should not
distinguish.
Second, Congress has created through special charters several government-owned

corporations organized as stock corporations. Prime examples are the Land Bank of the
Philippines and the Development Bank of the Philippines. The special charter 40 of the
Land Bank of the Philippines provides:
SECTION 81. Capital. — The authorized capital stock of the Bank shall be nine billion
pesos, divided into seven hundred and eighty million common shares with a par value of
ten pesos each, which shall be fully subscribed by the Government, and one hundred
and twenty million preferred shares with a par value of ten pesos each, which shall be
issued in accordance with the provisions of Sections seventy-seven and eighty-three of
this Code. (Emphasis supplied)
Likewise, the special charter41 of the Development Bank of the Philippines provides:
SECTION 7. Authorized Capital Stock – Par value. — The capital stock of the Bank shall
be Five Billion Pesos to be divided into Fifty Million common shares with par value of
P100 per share. These shares are available for subscription by the National
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Government. Upon the effectivity of this Charter, the National Government shall
subscribe to Twenty-Five Million common shares of stock worth Two Billion Five
Hundred Million which shall be deemed paid for by the Government with the net asset
values of the Bank remaining after the transfer of assets and liabilities as provided in
Section 30 hereof. (Emphasis supplied)
Other government-owned corporations organized as stock corporations under their

special charters are the Philippine Crop Insurance Corporation, 42 Philippine International
Trading Corporation,43 and the Philippine National Bank44 before it was reorganized as a
stock corporation under the Corporation Code. All these government-owned
corporations organized under special charters as stock corporations are subject to real
estate tax on real properties owned by them. To rule that they are not government-
owned or controlled corporations because they are not registered with the Securities and
Exchange Commission would remove them from the reach of Section 234 of the Local
Government Code, thus exempting them from real estate tax.
Third, the government-owned or controlled corporations created through special charters

are those that meet the two conditions prescribed in Section 16, Article XII of the
Constitution. The first condition is that the government-owned or controlled corporation
must be established for the common good. The second condition is that the government-
owned or controlled corporation must meet the test of economic viability. Section 16,
Article XII of the 1987 Constitution provides:
SEC. 16. The Congress shall not, except by general law, provide for the formation,
organization, or regulation of private corporations. Government-owned or controlled
corporations may be created or established by special charters in the interest of the
common good and subject to the test of economic viability. (Emphasis and underscoring
supplied)
The Constitution expressly authorizes the legislature to create "government-owned or

controlled corporations" through special charters only if these entities are required to
meet the twin conditions of common good and economic viability. In other words,
Congress has no power to create government-owned or controlled corporations with
special charters unless they are made to comply with the two conditions of common
good and economic viability. The test of economic viability applies only to government-
owned or controlled corporations that perform economic or commercial activities and
need to compete in the market place. Being essentially economic vehicles of the State
for the common good — meaning for economic development purposes — these
government-owned or controlled corporations with special charters are usually organized
as stock corporations just like ordinary private corporations.
In contrast, government instrumentalities vested with corporate powers and performing

governmental or public functions need not meet the test of economic viability. These
instrumentalities perform essential public services for the common good, services that
every modern State must provide its citizens. These instrumentalities need not be
economically viable since the government may even subsidize their entire operations.
These instrumentalities are not the "government-owned or controlled corporations"
referred to in Section 16, Article XII of the 1987 Constitution.
Thus, the Constitution imposes no limitation when the legislature creates government
instrumentalities vested with corporate powers but performing essential governmental or
public functions. Congress has plenary authority to create government instrumentalities
vested with corporate powers provided these instrumentalities perform essential
government functions or public services. However, when the legislature creates through
special charters corporations that perform economic or commercial activities, such
entities — known as "government-owned or controlled corporations" — must meet the
test of economic viability because they compete in the market place.
This is the situation of the Land Bank of the Philippines and the Development Bank of
the Philippines and similar government-owned or controlled corporations, which derive
their income to meet operating expenses solely from commercial transactions in
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competition with the private sector. The intent of the Constitution is to prevent the
creation of government-owned or controlled corporations that cannot survive on their
own in the market place and thus merely drain the public coffers.
Commissioner Blas F. Ople, proponent of the test of economic viability, explained to the
Constitutional Commission the purpose of this test, as follows:
MR. OPLE: Madam President, the reason for this concern is really that when the
government creates a corporation, there is a sense in which this corporation becomes
exempt from the test of economic performance. We know what happened in the past. If
a government corporation loses, then it makes its claim upon the taxpayers' money
through new equity infusions from the government and what is always invoked is the
common good. That is the reason why this year, out of a budget of P115 billion for the
entire government, about P28 billion of this will go into equity infusions to support a few
government financial institutions. And this is all taxpayers' money which could have been
relocated to agrarian reform, to social services like health and education, to augment the
salaries of grossly underpaid public employees. And yet this is all going down the drain.
Therefore, when we insert the phrase "ECONOMIC VIABILITY" together with the
"common good," this becomes a restraint on future enthusiasts for state capitalism to
excuse themselves from the responsibility of meeting the market test so that they
become viable. And so, Madam President, I reiterate, for the committee's consideration
and I am glad that I am joined in this proposal by Commissioner Foz, the insertion of the
standard of "ECONOMIC VIABILITY OR THE ECONOMIC TEST," together with the
common good.45
Father Joaquin G. Bernas, a leading member of the Constitutional Commission, explains

in his textbook The 1987 Constitution of the Republic of the Philippines: A Commentary:
The second sentence was added by the 1986 Constitutional Commission. The
significant addition, however, is the phrase "in the interest of the common good and
subject to the test of economic viability." The addition includes the ideas that they must
show capacity to function efficiently in business and that they should not go into activities
which the private sector can do better. Moreover, economic viability is more than
financial viability but also includes capability to make profit and generate benefits not
quantifiable in financial terms.46 (Emphasis supplied)
Clearly, the test of economic viability does not apply to government entities vested with
corporate powers and performing essential public services. The State is obligated to
render essential public services regardless of the economic viability of providing such
service. The non-economic viability of rendering such essential public service does not
excuse the State from withholding such essential services from the public.
However, government-owned or controlled corporations with special charters, organized

essentially for economic or commercial objectives, must meet the test of economic
viability. These are the government-owned or controlled corporations that are usually
organized under their special charters as stock corporations, like the Land Bank of the
Philippines and the Development Bank of the Philippines. These are the government-
owned or controlled corporations, along with government-owned or controlled
corporations organized under the Corporation Code, that fall under the definition of
"government-owned or controlled corporations" in Section 2(10) of the Administrative
Code.
The MIAA need not meet the test of economic viability because the legislature did not
create MIAA to compete in the market place. MIAA does not compete in the market
place because there is no competing international airport operated by the private sector.
MIAA performs an essential public service as the primary domestic and international
airport of the Philippines. The operation of an international airport requires the presence
of personnel from the following government agencies:
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1. The Bureau of Immigration and Deportation, to document the arrival and departure of
passengers, screening out those without visas or travel documents, or those with hold
departure orders;
2. The Bureau of Customs, to collect import duties or enforce the ban on prohibited
importations;
3. The quarantine office of the Department of Health, to enforce health measures against
the spread of infectious diseases into the country;
4. The Department of Agriculture, to enforce measures against the spread of plant and
animal diseases into the country;
5. The Aviation Security Command of the Philippine National Police, to prevent the entry
of terrorists and the escape of criminals, as well as to secure the airport premises from
terrorist attack or seizure;
6. The Air Traffic Office of the Department of Transportation and Communications, to

authorize aircraft to enter or leave Philippine airspace, as well as to land on, or take off
from, the airport; and
7. The MIAA, to provide the proper premises — such as runway and buildings — for the
government personnel, passengers, and airlines, and to manage the airport operations.
All these agencies of government perform government functions essential to the

operation of an international airport.
MIAA performs an essential public service that every modern State must provide its
citizens. MIAA derives its revenues principally from the mandatory fees and charges
MIAA imposes on passengers and airlines. The terminal fees that MIAA charges every
passenger are regulatory or administrative fees47 and not income from commercial
transactions.
MIAA falls under the definition of a government instrumentality under Section 2(10) of
the Introductory Provisions of the Administrative Code, which provides:
SEC. 2. General Terms Defined. – x x x x
(10) Instrumentality refers to any agency of the National Government, not integrated
within the department framework, vested with special functions or jurisdiction by law,
endowed with some if not all corporate powers, administering special funds, and
enjoying operational autonomy, usually through a charter. x x x (Emphasis supplied)
The fact alone that MIAA is endowed with corporate powers does not make MIAA a
government-owned or controlled corporation. Without a change in its capital structure,
MIAA remains a government instrumentality under Section 2(10) of the Introductory
Provisions of the Administrative Code. More importantly, as long as MIAA renders
essential public services, it need not comply with the test of economic viability. Thus,
MIAA is outside the scope of the phrase "government-owned or controlled corporations"
under Section 16, Article XII of the 1987 Constitution.
The minority belittles the use in the Local Government Code of the phrase "government-
owned or controlled corporation" as merely "clarificatory or illustrative." This is fatal. The
1987 Constitution prescribes explicit conditions for the creation of "government-owned or
controlled corporations." The Administrative Code defines what constitutes a
"government-owned or controlled corporation." To belittle this phrase as "clarificatory or
illustrative" is grave error.
To summarize, MIAA is not a government-owned or controlled corporation under Section

2(13) of the Introductory Provisions of the Administrative Code because it is not
organized as a stock or non-stock corporation. Neither is MIAA a government-owned or
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controlled corporation under Section 16, Article XII of the 1987 Constitution because
MIAA is not required to meet the test of economic viability. MIAA is a government
instrumentality vested with corporate powers and performing essential public services
pursuant to Section 2(10) of the Introductory Provisions of the Administrative Code. As a
government instrumentality, MIAA is not subject to any kind of tax by local governments
under Section 133(o) of the Local Government Code. The exception to the exemption in
Section 234(a) does not apply to MIAA because MIAA is not a taxable entity under the
Local Government Code. Such exception applies only if the beneficial use of real
property owned by the Republic is given to a taxable entity.
Finally, the Airport Lands and Buildings of MIAA are properties devoted to public use
and thus are properties of public dominion. Properties of public dominion are owned by
the State or the Republic. Article 420 of the Civil Code provides:
Art. 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks, shores, roadsteads, and others of similar
character;
(2) Those which belong to the State, without being for public use, and are intended for
some public service or for the development of the national wealth. (Emphasis supplied)
The term "ports x x x constructed by the State" includes airports and seaports. The
Airport Lands and Buildings of MIAA are intended for public use, and at the very least
intended for public service. Whether intended for public use or public service, the Airport
Lands and Buildings are properties of public dominion. As properties of public dominion,
the Airport Lands and Buildings are owned by the Republic and thus exempt from real
estate tax under Section 234(a) of the Local Government Code.
4. Conclusion
Under Section 2(10) and (13) of the Introductory Provisions of the Administrative Code,
which governs the legal relation and status of government units, agencies and offices
within the entire government machinery, MIAA is a government instrumentality and not a
government-owned or controlled corporation. Under Section 133(o) of the Local
Government Code, MIAA as a government instrumentality is not a taxable person
because it is not subject to "[t]axes, fees or charges of any kind" by local governments.
The only exception is when MIAA leases its real property to a "taxable person" as
provided in Section 234(a) of the Local Government Code, in which case the specific
real property leased becomes subject to real estate tax. Thus, only portions of the
Airport Lands and Buildings leased to taxable persons like private parties are subject to
real estate tax by the City of Parañaque.
Under Article 420 of the Civil Code, the Airport Lands and Buildings of MIAA, being
devoted to public use, are properties of public dominion and thus owned by the State or
the Republic of the Philippines. Article 420 specifically mentions "ports x x x constructed
by the State," which includes public airports and seaports, as properties of public
dominion and owned by the Republic. As properties of public dominion owned by the
Republic, there is no doubt whatsoever that the Airport Lands and Buildings are
expressly exempt from real estate tax under Section 234(a) of the Local Government
Code. This Court has also repeatedly ruled that properties of public dominion are not
subject to execution or foreclosure sale.
WHEREFORE, we GRANT the petition. We SET ASIDE the assailed Resolutions of the

Court of Appeals of 5 October 2001 and 27 September 2002 in CA-G.R. SP No. 66878.
We DECLARE the Airport Lands and Buildings of the Manila International Airport
Authority EXEMPT from the real estate tax imposed by the City of Parañaque. We
declare VOID all the real estate tax assessments, including the final notices of real
estate tax delinquencies, issued by the City of Parañaque on the Airport Lands and
Buildings of the Manila International Airport Authority, except for the portions that the
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Manila International Airport Authority has leased to private parties. We also
declare VOID the assailed auction sale, and all its effects, of the Airport Lands and
Buildings of the Manila International Airport Authority.
No costs.
SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-

Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia,
Velasco, Jr., J.J., concur.
DISSENTING OPINION
TINGA, J. :
The legally correct resolution of this petition would have had the added benefit of an
utterly fair and equitable result – a recognition of the constitutional and statutory power
of the City of Parañaque to impose real property taxes on the Manila International Airport
Authority (MIAA), but at the same time, upholding a statutory limitation that prevents the
City of Parañaque from seizing and conducting an execution sale over the real
properties of MIAA. In the end, all that the City of Parañaque would hold over the MIAA
is a limited lien, unenforceable as it is through the sale or disposition of MIAA properties.
Not only is this the legal effect of all the relevant constitutional and statutory provisions
applied to this case, it also leaves the room for negotiation for a mutually acceptable
resolution between the City of Parañaque and MIAA.
Instead, with blind but measured rage, the majority today veers wildly off-course,
shattering statutes and judicial precedents left and right in order to protect the precious
Ming vase that is the Manila International Airport Authority (MIAA). While the MIAA is left
unscathed, it is surrounded by the wreckage that once was the constitutional policy, duly
enacted into law, that was local autonomy. Make no mistake, the majority has virtually
declared war on the seventy nine (79) provinces, one hundred seventeen (117) cities,
and one thousand five hundred (1,500) municipalities of the Philippines.1
The icing on this inedible cake is the strained and purposely vague rationale used to
justify the majority opinion. Decisions of the Supreme Court are expected to provide
clarity to the parties and to students of jurisprudence, as to what the law of the case is,
especially when the doctrines of long standing are modified or clarified. With all due
respect, the decision in this case is plainly so, so wrong on many levels. More egregious,
in the majority's resolve to spare the Manila International Airport Authority (MIAA) from
liability for real estate taxes, no clear-cut rule emerges on the important question of the
power of local government units (LGUs) to tax government corporations,
instrumentalities or agencies.
The majority would overturn sub silencio, among others, at least one dozen precedents
enumerated below:
1) Mactan-Cebu International Airport Authority v. Hon. Marcos, 2 the leading case penned
in 1997 by recently retired Chief Justice Davide, which held that the express withdrawal
by the Local Government Code of previously granted exemptions from realty taxes
applied to instrumentalities and government-owned or controlled corporations (GOCCs)
such as the Mactan-Cebu International Airport Authority (MCIAA). The majority invokes
the ruling in Basco v. Pagcor, 3 a precedent discredited in Mactan, and a vanguard of a
doctrine so noxious to the concept of local government rule that the Local Government
Code was drafted precisely to counter such philosophy. The efficacy of several rulings
that expressly rely on Mactan, such as PHILRECA v. DILG Secretary, 4 City Government
of San Pablo v. Hon. Reyes5 is now put in question.
2) The rulings in National Power Corporation v. City of Cabanatuan, 6 wherein the Court,
through Justice Puno, declared that the National Power Corporation, a GOCC, is liable
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for franchise taxes under the Local Government Code, and succeeding cases that have
relied on it such as Batangas Power Corp. v. Batangas City 7 The majority now states
that deems instrumentalities as defined under the Administrative Code of 1987 as
purportedly beyond the reach of any form of taxation by LGUs, stating "[l]ocal
governments are devoid of power to tax the national government, its agencies and
instrumentalities."8 Unfortunately, using the definition employed by the majority, as
provided by Section 2(d) of the Administrative Code, GOCCs are also considered as
instrumentalities, thus leading to the astounding conclusion that GOCCs may not be
taxed by LGUs under the Local Government Code.
3) Lung Center of the Philippines v. Quezon City, 9 wherein a unanimous en banc Court
held that the Lung Center of the Philippines may be liable for real property taxes. Using
the majority's reasoning, the Lung Center would be properly classified as an
instrumentality which the majority now holds as exempt from all forms of local taxation. 10
4) City of Davao v. RTC, 11 where the Court held that the Government Service Insurance
System (GSIS) was liable for real property taxes for the years 1992 to 1994, its previous
exemption having been withdrawn by the enactment of the Local Government
Code.12 This decision, which expressly relied on Mactan, would be directly though
silently overruled by the majority.
5) The common essence of the Court's rulings in the two Philippine Ports Authority v.
City of Iloilo,13 cases penned by Justices Callejo and Azcuna respectively, which relied in
part on Mactan in holding the Philippine Ports Authority (PPA) liable for realty taxes,
notwithstanding the fact that it is a GOCC. Based on the reasoning of the majority, the
PPA cannot be considered a GOCC. The reliance of these cases on Mactan, and its
rationale for holding governmental entities like the PPA liable for local government
taxation is mooted by the majority.
6) The 1963 precedent of Social Security System Employees Association v.

Soriano,14 which declared the Social Security Commission (SSC) as a GOCC performing
proprietary functions. Based on the rationale employed by the majority, the Social
Security System is not a GOCC. Or perhaps more accurately, "no longer" a GOCC.
7) The decision penned by Justice (now Chief Justice) Panganiban, Light Rail Transit
Authority v. Central Board of Assessment.15 The characterization therein of the Light Rail
Transit Authority (LRTA) as a "service-oriented commercial endeavor" whose patrimonial
property is subject to local taxation is now rendered inconsequential, owing to the
majority's thinking that an entity such as the LRTA is itself exempt from local government
taxation16, irrespective of the functions it performs. Moreover, based on the majority's
criteria, LRTA is not a GOCC.
8) The cases of Teodoro v. National Airports Corporation 17 and Civil Aeronautics

Administration v. Court of Appeals.18 wherein the Court held that the predecessor agency
of the MIAA, which was similarly engaged in the operation, administration and
management of the Manila International Agency, was engaged in the exercise of
proprietary, as opposed to sovereign functions. The majority would hold otherwise that
the property maintained by MIAA is actually patrimonial, thus implying that MIAA is
actually engaged in sovereign functions.
9) My own majority in Phividec Industrial Authority v. Capitol Steel, 19 wherein the Court
held that the Phividec Industrial Authority, a GOCC, was required to secure the services
of the Office of the Government Corporate Counsel for legal representation. 20 Based on
the reasoning of the majority, Phividec would not be a GOCC, and the mandate of the
Office of the Government Corporate Counsel extends only to GOCCs.
10) Two decisions promulgated by the Court just last month (June 2006), National
Power Corporation v. Province of Isabela 21 and GSIS v. City Assessor of Iloilo City. 22 In
the former, the Court pronounced that "[a]lthough as a general rule, LGUs cannot
impose taxes, fees, or charges of any kind on the National Government, its agencies
and instrumentalities, this rule admits of an exception, i.e., when specific provisions of
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the LGC authorize the LGUs to impose taxes, fees or charges on the aforementioned
entities." Yet the majority now rules that the exceptions in the LGC no longer hold, since
"local governments are devoid of power to tax the national government, its agencies and
instrumentalities."23 The ruling in the latter case, which held the GSIS as liable for real
property taxes, is now put in jeopardy by the majority's ruling.
There are certainly many other precedents affected, perhaps all previous jurisprudence
regarding local government taxation vis-a-vis government entities, as well as any
previous definitions of GOCCs, and previous distinctions between the exercise of
governmental and proprietary functions (a distinction laid down by this Court as far back
as 191624). What is the reason offered by the majority for overturning or modifying all
these precedents and doctrines? None is given, for the majority takes comfort instead in
the pretense that these precedents never existed. Only children should be permitted to
subscribe to the theory that something bad will go away if you pretend hard enough that
it does not exist.
I.
Case Should Have Been Decided Following Mactan Precedent
The core issue in this case, whether the MIAA is liable to the City of Parañaque for real
property taxes under the Local Government Code, has already been decided by this
Court in the Mactan case, and should have been resolved by simply applying precedent.
Mactan Explained
A brief recall of the Mactan case is in order. The Mactan-Cebu International Airport
Authority (MCIAA) claimed that it was exempt from payment of real property taxes to the
City of Cebu, invoking the specific exemption granted in Section 14 of its charter,
Republic Act No. 6958, and its status as an instrumentality of the government performing
governmental functions.25 Particularly, MCIAA invoked Section 133 of the Local
Government Code, precisely the same provision utilized by the majority as the basis for
MIAA's exemption. Section 133 reads:
Sec. 133. Common Limitations on the Taxing Powers of Local Government Units.—
Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities,
municipalities, and barangays shall not extend to the levy of the following:
(o) Taxes, fees or charges of any kind on the National Government, its agencies and
instrumentalities and local government units. (emphasis and underscoring supplied).
However, the Court in Mactan noted that Section 133 qualified the exemption of the
National Government, its agencies and instrumentalities from local taxation with the
phrase "unless otherwise provided herein." It then considered the other relevant
provisions of the Local Government Code, particularly the following:
SEC. 193. Withdrawal of Tax Exemption Privileges. – Unless otherwise provided in this
Code, tax exemption or incentives granted to, or enjoyed by all persons, whether natural
or juridical, including government-owned and controlled corporations, except local water
districts, cooperatives duly registered under R.A. No. 6938, non-stock and non-profit
hospitals and educational institutions, are hereby withdrawn upon the effectivity of this
Code.26
SECTION 232. Power to Levy Real Property Tax. – A province or city or a municipality
within the Metropolitan Manila area may levy an annual ad valorem tax on real property
such as land, building, machinery, and other improvements not hereafter specifically
exempted.27
SECTION 234. Exemptions from Real Property Tax. -- The following are exempted from
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or otherwise, to a taxable person:
(b) Charitable institutions, churches, parsonages or convents appurtenant thereto,

mosques, non-profit or religious cemeteries and all lands, buildings, and improvements
actually, directly, and exclusively used for religious charitable or educational purposes;
(c) All machineries and equipment that are actually, directly and exclusively used by
local water districts and government-owned and controlled corporations engaged in the
distribution of water and/or generation and transmission of electric power;
(d) All real property owned by duly registered cooperatives as provided for under R.A.
No. 6938; and
(e) Machinery and equipment used for pollution control and environmental protection.
Except as provided herein, any exemption from payment of real property tax previously
granted to, or presently enjoyed by, all persons, whether natural or juridical, including all
government-owned or controlled corporations are hereby withdrawn upon the effectivity
of this Code.28
Clearly, Section 133 was not intended to be so absolute a prohibition on the power of
LGUs to tax the National Government, its agencies and instrumentalities, as evidenced
by these cited provisions which "otherwise provided." But what was the extent of the
limitation under Section 133? This is how the Court, correctly to my mind, defined the
parameters in Mactan:
The foregoing sections of the LGC speak of: (a) the limitations on the taxing powers of
local government units and the exceptions to such limitations; and (b) the rule on tax
exemptions and the exceptions thereto. The use of exceptions or provisos in these
sections, as shown by the following clauses:
(1) "unless otherwise provided herein" in the opening paragraph of Section 133;
(2) "Unless otherwise provided in this Code" in Section 193;
(3) "not hereafter specifically exempted" in Section 232; and
(4) "Except as provided herein" in the last paragraph of Section 234
initially hampers a ready understanding of the sections. Note, too, that the
aforementioned clause in Section 133 seems to be inaccurately worded. Instead of the
clause "unless otherwise provided herein," with the "herein" to mean, of course, the
section, it should have used the clause "unless otherwise provided in this Code." The
former results in absurdity since the section itself enumerates what are beyond the
taxing powers of local government units and, where exceptions were intended, the
exceptions are explicitly indicated in the next. For instance, in item (a) which excepts
income taxes "when levied on banks and other financial institutions"; item (d) which
excepts "wharfage on wharves constructed and maintained by the local government unit
concerned"; and item (1) which excepts taxes, fees and charges for the registration and
issuance of licenses or permits for the driving of "tricycles." It may also be observed that
within the body itself of the section, there are exceptions which can be found only in
other parts of the LGC, but the section interchangeably uses therein the clause, "except
as otherwise provided herein" as in items (c) and (i), or the clause "except as provided in
this Code" in item (j). These clauses would be obviously unnecessary or mere
surplusages if the opening clause of the section were "Unless otherwise provided in this
Code" instead of "Unless otherwise provided herein." In any event, even if the latter is
used, since under Section 232 local government units have the power to levy real
property tax, except those exempted therefrom under Section 234, then Section 232
must be deemed to qualify Section 133.
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Thus, reading together Sections 133, 232, and 234 of the LGC, we conclude that as a
general rule, as laid down in Section 133, the taxing powers of local government units
cannot extend to the levy of, inter alia, "taxes, fees and charges of any kind on the
National Government, its agencies and instrumentalities, and local government units";
however, pursuant to Section 232, provinces, cities, and municipalities in the
Metropolitan Manila Area may impose the real property tax except on, inter alia, "real
property owned by the Republic of the Philippines or any of its political subdivisions
except when the beneficial use thereof has been granted, for consideration or otherwise,
to a taxable person," as provided in item (a) of the first paragraph of Section 234.
As to tax exemptions or incentives granted to or presently enjoyed by natural or judicial

persons, including government-owned and controlled corporations, Section 193 of the
LGC prescribes the general rule, viz., they are withdrawn upon the effectivity of the LGC,
except those granted to local water districts, cooperatives duly registered under R.A. No.
6938, non-stock and non-profit hospitals and educational institutions, and unless
otherwise provided in the LGC. The latter proviso could refer to Section 234 which
enumerates the properties exempt from real property tax. But the last paragraph of
Section 234 further qualifies the retention of the exemption insofar as real property taxes
are concerned by limiting the retention only to those enumerated therein; all others not
included in the enumeration lost the privilege upon the effectivity of the LGC. Moreover,
even as to real property owned by the Republic of the Philippines or any of its political
subdivisions covered by item (a) of the first paragraph of Section 234, the exemption is
withdrawn if the beneficial use of such property has been granted to a taxable person for
consideration or otherwise.
Since the last paragraph of Section 234 unequivocally withdrew, upon the effectivity of
the LGC, exemptions from payment of real property taxes granted to natural or juridical
persons, including government-owned or controlled corporations, except as provided in
the said section, and the petitioner is, undoubtedly, a government-owned corporation, it
necessarily follows that its exemption from such tax granted it in Section 14 of its
Charter, R.A. No. 6958, has been withdrawn. Any claim to the contrary can only be
justified if the petitioner can seek refuge under any of the exceptions provided in Section
234, but not under Section 133, as it now asserts, since, as shown above, the said
section is qualified by Sections 232 and 234.29
The Court in Mactan acknowledged that under Section 133, instrumentalities were
generally exempt from all forms of local government taxation, unless otherwise provided
in the Code. On the other hand, Section 232 "otherwise provided" insofar as it allowed
LGUs to levy an ad valorem real property tax, irrespective of who owned the property. At
the same time, the imposition of real property taxes under Section 232 is in turn qualified
by the phrase "not hereinafter specifically exempted." The exemptions from real property
taxes are enumerated in Section 234, which specifically states that only real properties
owned "by the Republic of the Philippines or any of its political subdivisions" are
exempted from the payment of the tax. Clearly, instrumentalities or GOCCs do not fall
within the exceptions under Section 234.30
Mactan Overturned the Precedents Now Relied Upon by the Majority
But the petitioners in Mactan also raised the Court's ruling in Basco v.
PAGCOR,31 decided before the enactment of the Local Government Code. The Court in
Basco declared the PAGCOR as exempt from local taxes, justifying the exemption in this
wise:
Local governments have no power to tax instrumentalities of the National Government.

PAGCOR is a government owned or controlled corporation with an original charter, PD
1869. All of its shares of stocks are owned by the National Government. In addition to its
corporate powers (Sec. 3, Title II, PD 1869) it also exercises regulatory powers xxx
PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is
governmental, which places it in the category of an agency or instrumentality of the
Government. Being an instrumentality of the Government, PAGCOR should be and
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actually is exempt from local taxes. Otherwise, its operation might be burdened,
impeded or subjected to control by a mere Local government.
"The states have no power by taxation or otherwise, to retard impede, burden or in any
manner control the operation of constitutional laws enacted by Congress to carry into
execution the powers vested in the federal government." (McCulloch v. Marland, 4
Wheat 316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over local
governments.
"Justice Holmes, speaking for the Supreme Court, made reference to the entire absence
of power on the part of the States to touch, in that way (taxation) at least, the
instrumentalities of the United States (Johnson v. Maryland, 254 US 51) and it can be
agreed that no state or political subdivision can regulate a federal instrumentality in such
a way as to prevent it from consummating its federal responsibilities, or even to seriously
burden it in the accomplishment of them." (Antieau, Modern Constitutional Law, Vol. 2, p.
140, emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru extermination of
what local authorities may perceive to be undesirable activates or enterprise using the
power to tax as "a tool for regulation" (U.S. v. Sanchez, 340 US 42).
The power to tax which was called by Justice Marshall as the "power to destroy"
(McCulloch v. Maryland, supra) cannot be allowed to defeat an instrumentality or
creation of the very entity which has the inherent power to wield it.32
Basco is as strident a reiteration of the old guard view that frowned on the principle of
local autonomy, especially as it interfered with the prerogatives and privileges of the
national government. Also consider the following citation from Maceda v.
Macaraig,33 decided the same year as Basco. Discussing the rule of construction of tax
exemptions on government instrumentalities, the sentiments are of a similar vein.
Moreover, it is a recognized principle that the rule on strict interpretation does not apply
in the case of exemptions in favor of a government political subdivision or
instrumentality.
The basis for applying the rule of strict construction to statutory provisions granting tax
exemptions or deductions, even more obvious than with reference to the affirmative or
levying provisions of tax statutes, is to minimize differential treatment and foster
impartiality, fairness, and equality of treatment among tax payers.
The reason for the rule does not apply in the case of exemptions running to the benefit
of the government itself or its agencies. In such case the practical effect of an exemption
is merely to reduce the amount of money that has to be handled by government in the
course of its operations. For these reasons, provisions granting exemptions to
government agencies may be construed liberally, in favor of non tax-liability of such
agencies.
In the case of property owned by the state or a city or other public corporations, the
express exemption should not be construed with the same degree of strictness that
applies to exemptions contrary to the policy of the state, since as to such property
"exemption is the rule and taxation the exception."34
Strikingly, the majority cites these two very cases and the stodgy rationale provided
therein. This evinces the perspective from which the majority is coming from. It is
admittedly a viewpoint once shared by this Court, and en vogue prior to the enactment of
the Local Government Code of 1991.
However, the Local Government Code of 1991 ushered in a new ethos on how the art of
governance should be practiced in the Philippines, conceding greater powers once held
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in the private reserve of the national government to LGUs. The majority might have
private qualms about the wisdom of the policy of local autonomy, but the members of the
Court are not expected to substitute their personal biases for the legislative will,
especially when the 1987 Constitution itself promotes the principle of local autonomy.
Article II. Declaration of Principles and State Policies
Sec. 25. The State shall ensure the autonomy of local governments.
Article X. Local Government
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Section 3. The Congress shall enact a local government code which shall provide for a
responsibilities, and resources, and provide for the qualifications, election, appointment
other matters relating to the organization and operation of the local units.
Section 5. Each local government unit shall have the power to create its own sources of
revenues and to levy taxes, fees, and charges subject to such guidelines and limitations
as the Congress may provide, consistent with the basic policy of local autonomy. Such
taxes, fees, and charges shall accrue exclusively to the local governments.
The Court in Mactan recognized that a new day had dawned with the enactment of the
1987 Constitution and the Local Government Code of 1991. Thus, it expressly rejected
the contention of the MCIAA that Basco was applicable to them. In doing so, the
language of the Court was dramatic, if only to emphasize how monumental the shift in
philosophy was with the enactment of the Local Government Code:
Accordingly, the position taken by the [MCIAA] is untenable. Reliance on Basco v.

Philippine Amusement and Gaming Corporation is unavailing since it was decided
before the effectivity of the [Local Government Code]. Besides, nothing can prevent
Congress from decreeing that even instrumentalities or agencies of the Government
performing governmental functions may be subject to tax. Where it is done precisely to
fulfill a constitutional mandate and national policy, no one can doubt its
wisdom.35 (emphasis supplied)
The Court Has RepeatedlyReaffirmed Mactan Over thePrecedents Now Relied Upon By
the Majority
Since then and until today, the Court has been emphatic in declaring the Basco doctrine
as dead. The notion that instrumentalities may be subjected to local taxation by LGUs
was again affirmed in National Power Corporation v. City of Cabanatuan, 36 which was
penned by Justice Puno. NPC or Napocor, invoking its continued exemption from
payment of franchise taxes to the City of Cabanatuan, alleged that it was an
instrumentality of the National Government which could not be taxed by a city
government. To that end, Basco was cited by NPC. The Court had this to say about
Basco.
xxx[T]he doctrine in Basco vs. Philippine Amusement and Gaming Corporation relied
upon by the petitioner to support its claim no longer applies. To emphasize, the Basco
case was decided prior to the effectivity of the LGC, when no law empowering the local
government units to tax instrumentalities of the National Government was in effect.
However, as this Court ruled in the case of Mactan Cebu International Airport Authority
(MCIAA) vs. Marcos, nothing prevents Congress from decreeing that even
instrumentalities or agencies of the government performing governmental functions may
be subject to tax. In enacting the LGC, Congress exercised its prerogative to tax
instrumentalities and agencies of government as it sees fit. Thus, after reviewing the
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specific provisions of the LGC, this Court held that MCIAA, although an instrumentality of
the national government, was subject to real property tax.37
In the 2003 case of Philippine Ports Authority v. City of Iloilo, 38 the Court, in the able
ponencia of Justice Azcuna, affirmed the levy of realty taxes on the PPA. Although the
taxes were assessed under the old Real Property Tax Code and not the Local
Government Code, the Court again cited Mactan to refute PPA's invocation of Basco as
the basis of its exemption.
[Basco] did not absolutely prohibit local governments from taxing government
instrumentalities. In fact we stated therein:
The power of local government to "impose taxes and fees" is always subject to
"limitations" which Congress may provide by law. Since P.D. 1869 remains an
"operative" law until "amended, repealed or revoked". . . its "exemption clause" remains
an exemption to the exercise of the power of local governments to impose taxes and
fees.
Furthermore, in the more recent case of Mactan Cebu International Airport Authority v.
Marcos, where the Basco case was similarly invoked for tax exemption, we stated:
"[N]othing can prevent Congress from decreeing that even instrumentalities or agencies
of the Government performing governmental functions may be subject to tax. Where it is
done precisely to fulfill a constitutional mandate and national policy, no one can doubt its
wisdom." The fact that tax exemptions of government-owned or controlled corporations
have been expressly withdrawn by the present Local Government Code clearly attests
against petitioner's claim of absolute exemption of government instrumentalities from
local taxation.39
Just last month, the Court in National Power Corporation v. Province of Isabela 40 again
rejected Basco in emphatic terms. Held the Court, through Justice Callejo, Sr.:
Thus, the doctrine laid down in the Basco case is no longer true. In the Cabanatuan
case, the Court noted primarily that the Basco case was decided prior to the effectivity of
the LGC, when no law empowering the local government units to tax instrumentalities of
the National Government was in effect. It further explained that in enacting the LGC,
Congress empowered the LGUs to impose certain taxes even on instrumentalities of the
National Government.41
The taxability of the PPA recently came to fore in Philippine Ports Authority v. City of
Iloilo42 case, a decision also penned by Justice Callejo, Sr., wherein the Court affirmed
the sale of PPA's properties at public auction for failure to pay realty taxes. The Court
again reiterated that "it was the intention of Congress to withdraw the tax exemptions
granted to or presently enjoyed by all persons, including government-owned or
controlled corporations, upon the effectivity" of the Code. 43 The Court in the second
Public Ports Authority case likewise cited Mactan as providing the "raison d'etre for the
withdrawal of the exemption," namely, "the State policy to ensure autonomy to local
governments and the objective of the [Local Government Code] that they enjoy genuine
and meaningful local autonomy to enable them to attain their fullest development as self-
reliant communities. . . . "44
Last year, the Court, in City of Davao v. RTC, 45 affirmed that the legislated exemption
from real property taxes of the Government Service Insurance System (GSIS) was
removed under the Local Government Code. Again, Mactan was relied upon as the
governing precedent. The removal of the tax exemption stood even though the then
GSIS law46 prohibited the removal of GSIS' tax exemptions unless the exemption was
specifically repealed, "and a provision is enacted to substitute the declared policy of
exemption from any and all taxes as an essential factor for the solvency of the
fund."47 The Court, citing established doctrines in statutory construction and Duarte v.
Dade48 ruled that such proscription on future legislation was itself prohibited, as "the
legislature cannot bind a future legislature to a particular mode of repeal."49
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And most recently, just less than one month ago, the Court, through Justice Corona in
Government Service Insurance System v. City Assessor of Iloilo 50 again affirmed that the
Local Government Code removed the previous exemption from real property taxes of the
GSIS. Again Mactan was cited as having "expressly withdrawn the [tax] exemption of the
[GOCC].51
Clearly then, Mactan is not a stray or unique precedent, but the basis of a jurisprudential
rule employed by the Court since its adoption, the doctrine therein consistent with the
Local Government Code. Corollarily, Basco, the polar opposite of Mactan has been
emphatically rejected and declared inconsistent with the Local Government Code.
II.
Majority, in Effectively Overturning Mactan, Refuses to Say Why Mactan Is Wrong
The majority cites Basco in support. It does not cite Mactan, other than an incidental
reference that it is relied upon by the respondents.52 However, the ineluctable conclusion
is that the majority rejects the rationale and ruling in Mactan. The majority provides for a
wildly different interpretation of Section 133, 193 and 234 of the Local Government Code
than that employed by the Court in Mactan. Moreover, the parties in Mactan and in this
case are similarly situated, as can be obviously deducted from the fact that both
petitioners are airport authorities operating under similarly worded charters. And the fact
that the majority cites doctrines contrapuntal to the Local Government Code as in Basco
and Maceda evinces an intent to go against the Court's jurisprudential trend adopting the
philosophy of expanded local government rule under the Local Government Code.
Before I dwell upon the numerous flaws of the majority, a brief comment is necessitated
on the majority's studied murkiness vis-à-vis the Mactan precedent. The majority is
obviously inconsistent with Mactan and there is no way these two rulings can stand
together. Following basic principles in statutory construction, Mactan will be deemed as
giving way to this new ruling.
However, the majority does not bother to explain why Mactan is wrong. The
interpretation in Mactan of the relevant provisions of the Local Government Code is
elegant and rational, yet the majority refuses to explain why this reasoning of the Court
in Mactan is erroneous. In fact, the majority does not even engage Mactan in any
meaningful way. If the majority believes that Mactan may still stand despite this ruling, it
remains silent as to the viable distinctions between these two cases.
The majority's silence on Mactan is baffling, considering how different this new ruling is
with the ostensible precedent. Perhaps the majority does not simply know how to
dispense with the ruling in Mactan. If Mactan truly deserves to be discarded as
precedent, it deserves a more honorable end than death by amnesia or ignonominous
disregard. The majority could have devoted its discussion in explaining why it thinks
Mactan is wrong, instead of pretending that Mactan never existed at all. Such an
approach might not have won the votes of the minority, but at least it would provide
some degree of intellectual clarity for the parties, LGUs and the national government,
students of jurisprudence and practitioners. A more meaningful debate on the matter
would have been possible, enriching the study of law and the intellectual dynamic of this
Court.
There is no way the majority can be justified unless Mactan is overturned. The MCIAA
and the MIAA are similarly situated. They are both, as will be demonstrated, GOCCs,
commonly engaged in the business of operating an airport. They are the owners of
airport properties they respectively maintain and hold title over these properties in their
name.53 These entities are both owned by the State, and denied by their respective
charters the absolute right to dispose of their properties without prior approval
elsewhere.54 Both of them are not empowered to obtain loans or encumber their
properties without prior approval the prior approval of the President.55
III.
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Instrumentalities, Agencies and GOCCs Generally Liable for Real Property Tax
I shall now proceed to demonstrate the errors in reasoning of the majority. A bulwark of
my position lies with Mactan, which will further demonstrate why the majority has found it
inconvenient to even grapple with the precedent that is Mactan in the first place.
Mactan held that the prohibition on taxing the national government, its agencies and
instrumentalities under Section 133 is qualified by Section 232 and Section 234, and
accordingly, the only relevant exemption now applicable to these bodies is as provided
under Section 234(o), or on "real property owned by the Republic of the Philippines or
any of its political subdivisions except when the beneficial use thereof has been granted,
for consideration or otherwise, to a taxable person."
It should be noted that the express withdrawal of previously granted exemptions by the
Local Government Code do not even make any distinction as to whether the exempt
person is a governmental entity or not. As Sections 193 and 234 both state, the
withdrawal applies to "all persons, including [GOCCs]", thus encompassing the two
classes of persons recognized under our laws, natural persons56 and juridical persons.57
The fact that the Local Government Code mandates the withdrawal of previously granted
exemptions evinces certain key points. If an entity was previously granted an express
exemption from real property taxes in the first place, the obvious conclusion would be
that such entity would ordinarily be liable for such taxes without the exemption. If such
entities were already deemed exempt due to some overarching principle of law, then it
would be a redundancy or surplusage to grant an exemption to an already exempt entity.
This fact militates against the claim that MIAA is preternaturally exempt from realty
taxes, since it required the enactment of an express exemption from such taxes in its
charter.
Amazingly, the majority all but ignores the disquisition in Mactan and asserts that
government instrumentalities are not taxable persons unless they lease their properties
to a taxable person. The general rule laid down in Section 232 is given short shrift. In
arriving at this conclusion, several leaps in reasoning are committed.
Majority's Flawed Definition of GOCCs.
The majority takes pains to assert that the MIAA is not a GOCC, but rather an
instrumentality. However, and quite grievously, the supposed foundation of this assertion
is an adulteration.
The majority gives the impression that a government instrumentality is a distinct concept
from a government corporation. 58 Most tellingly, the majority selectively cites a portion of
Section 2(10) of the Administrative Code of 1987, as follows:
Instrumentality refers to any agency of the National Government not integrated within the
department framework, vested with special functions or jurisdiction by law, endowed with
some if not all corporate powers, administering special funds, and enjoying operational
autonomy, usually through a charter. xxx59 (emphasis omitted)
However, Section 2(10) of the Administrative Code, when read in full, makes an
important clarification which the majority does not show. The portions omitted by the
majority are highlighted below:
(10)Instrumentality refers to any agency of the National Government not integrated

within the department framework, vested with special functions or jurisdiction by law,
endowed with some if not all corporate powers, administering special funds, and
enjoying operational autonomy, usually through a charter. This term includes regulatory
agencies, chartered institutions and government—owned or controlled corporations.60
Since Section 2(10) makes reference to "agency of the National Government," Section
2(4) is also worth citing in full:
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(4) Agency of the Government refers to any of the various units of the Government,
including a department, bureau, office, instrumentality, or government-owned or
controlled corporation, or a local government or a distinct unit therein. (emphasis
supplied)61
Clearly then, based on the Administrative Code, a GOCC may be an instrumentality or

an agency of the National Government. Thus, there actually is no point in the majority's
assertion that MIAA is not a GOCC, since based on the majority's premise of Section
133 as the key provision, the material question is whether MIAA is either an
instrumentality, an agency, or the National Government itself. The very provisions of the
Administrative Code provide that a GOCC can be either an instrumentality or an agency,
so why even bother to extensively discuss whether or not MIAA is a GOCC?
Indeed as far back as the 1927 case of Government of the Philippine Islands v.
Springer,62 the Supreme Court already noted that a corporation of which the government
is the majority stockholder "remains an agency or instrumentality of government."63
Ordinarily, the inconsequential verbiage stewing in judicial opinions deserve little

rebuttal. However, the entire discussion of the majority on the definition of a GOCC,
obiter as it may ultimately be, deserves emphatic refutation. The views of the majority on
this matter are very dangerous, and would lead to absurdities, perhaps unforeseen by
the majority. For in fact, the majority effectively declassifies many entities created and
recognized as GOCCs and would give primacy to the Administrative Code of 1987 rather
than their respective charters as to the definition of these entities.
Majority Ignores the Power Of Congress to Legislate and Define Chartered Corporations
First, the majority declares that, citing Section 2(13) of the Administrative Code, a GOCC
must be "organized as a stock or non-stock corporation," as defined under the
Corporation Code. To insist on this as an absolute rule fails on bare theory. Congress
has the undeniable power to create a corporation by legislative charter, and has been
doing so throughout legislative history. There is no constitutional prohibition on Congress
as to what structure these chartered corporations should take on. Clearly, Congress has
the prerogative to create a corporation in whatever form it chooses, and it is not bound
by any traditional format. Even if there is a definition of what a corporation is under the
Corporation Code or the Administrative Code, these laws are by no means sacrosanct. It
should be remembered that these two statutes fall within the same level of hierarchy as
a congressional charter, since they all are legislative enactments. Certainly, Congress
can choose to disregard either the Corporation Code or the Administrative Code in
defining the corporate structure of a GOCC, utilizing the same extent of legislative
powers similarly vesting it the putative ability to amend or abolish the Corporation Code
or the Administrative Code.
These principles are actually recognized by both the Administrative Code and the
Corporation Code. The definition of GOCCs, agencies and instrumentalities under the
Administrative Code are laid down in the section entitled "General Terms Defined,"
which qualifies:
Sec. 2. General Terms Defined. – Unless the specific words of the text, or the context as
a whole, or a particular statute, shall require a different meaning: (emphasis supplied)
xxx
Similar in vein is Section 6 of the Corporation Code which provides:
SEC. 4. Corporations created by special laws or charters.— Corporations created by

special laws or charters shall be governed primarily by the provisions of the special law
or charter creating them or applicable to them, supplemented by the provisions of this
Code, insofar as they are applicable. (emphasis supplied)
WEEK 3
Thus, the clear doctrine emerges – the law that governs the definition of a corporation or
entity created by Congress is its legislative charter. If the legislative enactment defines
an entity as a corporation, then it is a corporation, no matter if the Corporation Code or
the Administrative Code seemingly provides otherwise. In case of conflict between the
legislative charter of a government corporation, on one hand, and the Corporate Code
and the Administrative Code, on the other, the former always prevails.
Majority, in Ignoring the Legislative Charters, Effectively Classifies Duly Established

GOCCs, With Disastrous and Far Reaching Legal Consequences
Second, the majority claims that MIAA does not qualify either as a stock or non-stock
corporation, as defined under the Corporation Code. It explains that the MIAA is not a
stock corporation because it does not have any capital stock divided into shares. Neither
can it be considered as a non-stock corporation because it has no members, and under
Section 87, a non-stock corporation is one where no part of its income is distributable as
dividends to its members, trustees or officers.
This formulation of course ignores Section 4 of the Corporation Code, which again
provides that corporations created by special laws or charters shall be governed
primarily by the provisions of the special law or charter, and not the Corporation Code.
That the MIAA cannot be considered a stock corporation if only because it does not have
a stock structure is hardly a plausible proposition. Indeed, there is no point in requiring a
capital stock structure for GOCCs whose full ownership is limited by its charter to the
State or Republic. Such GOCCs are not empowered to declare dividends or alienate
their capital shares.
Admittedly, there are GOCCs established in such a manner, such as the National Power
Corporation (NPC), which is provided with authorized capital stock wholly subscribed
and paid for by the Government of the Philippines, divided into shares but at the same
time, is prohibited from transferring, negotiating, pledging, mortgaging or otherwise
giving these shares as security for payment of any obligation. 64 However, based on the
Corporation Code definition relied upon by the majority, even the NPC cannot be
considered as a stock corporation. Under Section 3 of the Corporation Code, stock
corporations are defined as being "authorized to distribute to the holders of its shares
dividends or allotments of the surplus profits on the basis of the shares held." 65 On the
other hand, Section 13 of the NPC's charter states that "the Corporation shall be non-
profit and shall devote all its returns from its capital investment, as well as excess
revenues from its operation, for expansion." 66 Can the holder of the shares of NPC, the
National Government, receive its surplus profits on the basis of its shares held? It
cannot, according to the NPC charter, and hence, following Section 3 of the Corporation
Code, the NPC is not a stock corporation, if the majority is to be believed.
The majority likewise claims that corporations without members cannot be deemed non-
stock corporations. This would seemingly exclude entities such as the NPC, which like
MIAA, has no ostensible members. Moreover, non-stock corporations cannot distribute
any part of its income as dividends to its members, trustees or officers. The majority
faults MIAA for remitting 20% of its gross operating income to the national government.
How about the Philippine Health Insurance Corporation, created with the "status of a tax-
exempt government corporation attached to the Department of Health" under Rep. Act
No. 7875.67 It too cannot be considered as a stock corporation because it has no capital
stock structure. But using the criteria of the majority, it is doubtful if it would pass muster
as a non-stock corporation, since the PHIC or Philhealth, as it is commonly known, is
expressly empowered "to collect, deposit, invest, administer and disburse" the National
Health Insurance Fund.68 Or how about the Social Security System, which under its
revised charter, Republic Act No. 8282, is denominated as a "corporate body." 69 The
SSS has no capital stock structure, but has capital comprised of contributions by its
members, which are eventually remitted back to its members. Does this disqualify the
SSS from classification as a GOCC, notwithstanding this Court's previous
pronouncement in Social Security System Employees Association v. Soriano?70
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In fact, Republic Act No. 7656, enacted in 1993, requires that all GOCCs, whether stock
or non-stock,71 declare and remit at least fifty percent (50%) of their annual net earnings
as cash, stock or property dividends to the National Government. 72 But according to the
majority, non-stock corporations are prohibited from declaring any part of its income as
dividends. But if Republic Act No. 7656 requires even non-stock corporations to declare
dividends from income, should it not follow that the prohibition against declaration of
dividends by non-stock corporations under the Corporation Code does not apply to
government-owned or controlled corporations? For if not, and the majority's illogic is
pursued, Republic Act No. 7656, passed in 1993, would be fatally flawed, as it would
contravene the Administrative Code of 1987 and the Corporation Code.
In fact, the ruinous effects of the majority's hypothesis on the nature of GOCCs can be
illustrated by Republic Act No. 7656. Following the majority's definition of a GOCC and in
accordance with Republic Act No. 7656, here are but a few entities which are not obliged
to remit fifty (50%) of its annual net earnings to the National Government as they are
excluded from the scope of Republic Act No. 7656:
1) Philippine Ports Authority73 – has no capital stock74, no members, and obliged to apply
the balance of its income or revenue at the end of each year in a general reserve.75
2) Bases Conversion Development Authority76 - has no capital stock,77 no members.
3) Philippine Economic Zone Authority78 - no capital stock,79 no members.
4) Light Rail Transit Authority80 - no capital stock,81 no members.
5) Bangko Sentral ng Pilipinas 82 - no capital stock,83 no members, required to remit fifty
percent (50%) of its net profits to the National Treasury.84
6) National Power Corporation85 - has capital stock but is prohibited from "distributing to
the holders of its shares dividends or allotments of the surplus profits on the basis of the
shares held;"86 no members.
7) Manila International Airport Authority – no capital stock 87, no members88, mandated to

remit twenty percent (20%) of its annual gross operating income to the National
Treasury.89
Thus, for the majority, the MIAA, among many others, cannot be considered as within
the coverage of Republic Act No. 7656. Apparently, President Fidel V. Ramos
disagreed. How else then could Executive Order No. 483, signed in 1998 by President
Ramos, be explained? The issuance provides:
WHEREAS, Section 1 of Republic Act No. 7656 provides that:
"Section 1. Declaration of Policy. - It is hereby declared the policy of the State that in
order for the National Government to realize additional revenues, government-owned
and/or controlled corporations, without impairing their viability and the purposes for
which they have been established, shall share a substantial amount of their net earnings
to the National Government."
WHEREAS, to support the viability and mandate of government-owned and/or controlled

corporations [GOCCs], the liquidity, retained earnings position and medium-term plans
and programs of these GOCCs were considered in the determination of the reasonable
dividend rates of such corporations on their 1997 net earnings.
WHEREAS, pursuant to Section 5 of RA 7656, the Secretary of Finance recommended

the adjustment on the percentage of annual net earnings that shall be declared by the
Manila International Airport Authority [MIAA] and Phividec Industrial Authority [PIA] in the
interest of national economy and general welfare.
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NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Philippines, by virtue of the
powers vested in me by law, do hereby order:
SECTION 1. The percentage of net earnings to be declared and remitted by the MIAA
and PIA as dividends to the National Government as provided for under Section 3 of
Republic Act No. 7656 is adjusted from at least fifty percent [50%] to the rates specified
hereunder:
1. Manila International Airport Authority - 35% [cash]
2. Phividec Industrial Authority - 25% [cash]
SECTION 2. The adjusted dividend rates provided for under Section 1 are only
applicable on 1997 net earnings of the concerned government-owned and/or controlled
corporations.
Obviously, it was the opinion of President Ramos and the Secretary of Finance that
MIAA is a GOCC, for how else could it have come under the coverage of Republic Act
No. 7656, a law applicable only to GOCCs? But, the majority apparently disagrees, and
resultantly holds that MIAA is not obliged to remit even the reduced rate of thirty five
percent (35%) of its net earnings to the national government, since it cannot be covered
by Republic Act No. 7656.
All this mischief because the majority would declare the Administrative Code of 1987
and the Corporation Code as the sole sources of law defining what a government
corporation is. As I stated earlier, I find it illogical that chartered corporations are
compelled to comply with the templates of the Corporation Code, especially when the
Corporation Code itself states that these corporations are to be governed by their own
charters. This is especially true considering that the very provision cited by the majority,
Section 87 of the Corporation Code, expressly says that the definition provided therein is
laid down "for the purposes of this [Corporation] Code." Read in conjunction with Section
4 of the Corporation Code which mandates that corporations created by charter be
governed by the law creating them, it is clear that contrary to the majority, MIAA is not
disqualified from classification as a non-stock corporation by reason of Section 87, the
provision not being applicable to corporations created by special laws or charters. In
fact, I see no real impediment why the MIAA and similarly situated corporations such as
the PHIC, the SSS, the Philippine Deposit Insurance Commission, or maybe even the
NPC could at the very least, be deemed as no stock corporations (as differentiated from
non-stock corporations).
The point, stripped to bare simplicity, is that entity created by legislative enactment is a
corporation if the legislature says so. After all, it is the legislature that dictates what a
corporation is in the first place. This is better illustrated by another set of entities created
before martial law. These include the Mindanao Development Authority, 90 the Northern
Samar Development Authority,91 the Ilocos Sur Development Authority,92 the
Southeastern Samar Development Authority93 and the Mountain Province Development
Authority.94 An examination of the first section of the statutes creating these entities
reveal that they were established "to foster accelerated and balanced growth" of their
respective regions, and towards such end, the charters commonly provide that "it is
recognized that a government corporation should be created for the purpose," and
accordingly, these charters "hereby created a body corporate." 95 However, these
corporations do not have capital stock nor members, and are obliged to return the
unexpended balances of their appropriations and earnings to a revolving fund in the
National Treasury. The majority effectively declassifies these entities as GOCCs, never
mind the fact that their very charters declare them to be GOCCs.
I mention these entities not to bring an element of obscurantism into the fray. I cite them
as examples to emphasize my fundamental point—that it is the legislative charters of
these entities, and not the Administrative Code, which define the class of personality of
these entities created by Congress. To adopt the view of the majority would be, in effect,
to sanction an implied repeal of numerous congressional charters for the purpose of
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declassifying GOCCs. Certainly, this could not have been the intent of the crafters of the
Administrative Code when they drafted the "Definition of Terms" incorporated therein.
MIAA Is Without Doubt, A GOCC
Following the charters of government corporations, there are two kinds of GOCCs,
namely: GOCCs which are stock corporations and GOCCs which are no stock
corporations (as distinguished from non-stock corporation). Stock GOCCs are simply
those which have capital stock while no stock GOCCs are those which have no capital
stock. Obviously these definitions are different from the definitions of the terms in the
Corporation Code. Verily, GOCCs which are not incorporated with the Securities and
Exchange Commission are not governed by the Corporation Code but by their
respective charters.
For the MIAA's part, its charter is replete with provisions that indubitably classify it as a
GOCC. Observe the following provisions from MIAA's charter:
SECTION 3. Creation of the Manila International Airport Authority.—There is hereby

established a body corporate to be known as the Manila International Airport Authority
which shall be attached to the Ministry of Transportation and Communications. The
principal office of the Authority shall be located at the New Manila International Airport.
The Authority may establish such offices, branches, agencies or subsidiaries as it may
deem proper and necessary; Provided, That any subsidiary that may be organized shall
have the prior approval of the President.
The land where the Airport is presently located as well as the surrounding land area of
approximately six hundred hectares, are hereby transferred, conveyed and assigned to
the ownership and administration of the Authority, subject to existing rights, if any. The
Bureau of Lands and other appropriate government agencies shall undertake an actual
survey of the area transferred within one year from the promulgation of this Executive
Order and the corresponding title to be issued in the name of the Authority. Any portion
thereof shall not be disposed through sale or through any other mode unless specifically
approved by the President of the Philippines.
SECTION 5. Functions, Powers, and Duties. — The Authority shall have the following
functions, powers and duties:
(d) To sue and be sued in its corporate name;
(e) To adopt and use a corporate seal;
(f) To succeed by its corporate name;
(g) To adopt its by-laws, and to amend or repeal the same from time to time;
(h) To execute or enter into contracts of any kind or nature;
(i) To acquire, purchase, own, administer, lease, mortgage, sell or otherwise dispose of
any land, building, airport facility, or property of whatever kind and nature, whether
movable or immovable, or any interest therein;
(j) To exercise the power of eminent domain in the pursuit of its purposes and objectives
(o) To exercise all the powers of a corporation under the Corporation Law, insofar as
these powers are not inconsistent with the provisions of this Executive Order.
SECTION 16. Borrowing Power. — The Authority may, after consultation with the
Minister of Finance and with the approval of the President of the Philippines, as
recommended by the Minister of Transportation and Communications, raise funds, either
from local or international sources, by way of loans, credits or securities, and other
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borrowing instruments, with the power to create pledges, mortgages and other voluntary
liens or encumbrances on any of its assets or properties.
All loans contracted by the Authority under this Section, together with all interests and
other sums payable in respect thereof, shall constitute a charge upon all the revenues
and assets of the Authority and shall rank equally with one another, but shall have
priority over any other claim or charge on the revenue and assets of the Authority:
Provided, That this provision shall not be construed as a prohibition or restriction on the
power of the Authority to create pledges, mortgages, and other voluntary liens or
encumbrances on any assets or property of the Authority.
Except as expressly authorized by the President of the Philippines the total outstanding
indebtedness of the Authority in the principal amount, in local and foreign currency, shall
not at any time exceed the net worth of the Authority at any given time.
The President or his duly authorized representative after consultation with the Minister of
Finance may guarantee, in the name and on behalf of the Republic of the Philippines,
the payment of the loans or other indebtedness of the Authority up to the amount herein
authorized.
These cited provisions establish the fitness of MIAA to be the subject of legal
relations.96 MIAA under its charter may acquire and possess property, incur obligations,
and bring civil or criminal actions. It has the power to contract in its own name, and to
acquire title to real or personal property. It likewise may exercise a panoply of corporate
powers and possesses all the trappings of corporate personality, such as a corporate
name, a corporate seal and by-laws. All these are contained in MIAA's charter which, as
conceded by the Corporation Code and even the Administrative Code, is the primary law
that governs the definition and organization of the MIAA.
In fact, MIAA itself believes that it is a GOCC represents itself as such. It said so itself in
the very first paragraph of the present petition before this Court. 97 So does, apparently,
the Department of Budget and Management, which classifies MIAA as a "government
owned & controlled corporation" on its internet website. 98 There is also the matter of
Executive Order No. 483, which evinces the belief of the then-president of the
Philippines that MIAA is a GOCC. And the Court before had similarly characterized
MIAA as a government-owned and controlled corporation in the earlier MIAA case,
Manila International Airport Authority v. Commission on Audit.99
Why then the hesitance to declare MIAA a GOCC? As the majority repeatedly asserts, it
is because MIAA is actually an instrumentality. But the very definition relied upon by the
majority of an instrumentality under the Administrative Code clearly states that a GOCC
is likewise an instrumentality or an agency. The question of whether MIAA is a GOCC
might not even be determinative of this Petition, but the effect of the majority's
disquisition on that matter may even be more destructive than the ruling that MIAA is
exempt from realty taxes. Is the majority ready to live up to the momentous
consequences of its flawed reasoning?
Novel Proviso in 1987 Constitution Prescribing Standards in the Creation of GOCCs

Necessarily Applies only to GOCCs Created After 1987.
One last point on this matter on whether MIAA is a GOCC. The majority triumphantly
points to Section 16, Article XII of the 1987 Constitution, which mandates that the
creation of GOCCs through special charters be "in the interest of the common good and
subject to the test of economic viability." For the majority, the test of economic viability
does not apply to government entities vested with corporate powers and performing
essential public services. But this test of "economic viability" is new to the constitutional
framework. No such test was imposed in previous Constitutions, including the 1973
Constitution which was the fundamental law in force when the MIAA was created. How
then could the MIAA, or any GOCC created before 1987 be expected to meet this new
precondition to the creation of a GOCC? Does the dissent seriously suggest that
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GOCCs created before 1987 may be declassified on account of their failure to meet this
"economic viability test"?
Instrumentalities and Agencies Also Generally Liable For Real Property Taxes
Next, the majority, having bludgeoned its way into asserting that MIAA is not a GOCC,
then argues that MIAA is an instrumentality. It cites incompletely, as earlier stated, the
provision of Section 2(10) of the Administrative Code. A more convincing view offered
during deliberations, but which was not adopted by the ponencia, argued that MIAA is
not an instrumentality but an agency, considering the fact that under the Administrative
Code, the MIAA is attached within the department framework of the Department of
Transportation and Communications.100 Interestingly, Executive Order No. 341, enacted
by President Arroyo in 2004, similarly calls MIAA an agency. Since instrumentalities are
expressly defined as "an agency not integrated within the department framework," that
view concluded that MIAA cannot be deemed an instrumentality.
Still, that distinction is ultimately irrelevant. Of course, as stated earlier, the

Administrative Code considers GOCCs as agencies, 101 so the fact that MIAA is an
agency does not exclude it from classification as a GOCC. On the other hand, the
majority justifies MIAA's purported exemption on Section 133 of the Local Government
Code, which similarly situates "agencies and instrumentalities" as generally exempt from
the taxation powers of LGUs. And on this point, the majority again evades Mactan and
somehow concludes that Section 133 is the general rule, notwithstanding Sections 232
and 234(a) of the Local Government Code. And the majority's ultimate conclusion? "By
express mandate of the Local Government Code, local governments cannot impose any
kind of tax on national government instrumentalities like the MIAA. Local governments
are devoid of power to tax the national government, its agencies and
instrumentalities."102
The Court's interpretation of the Local Government Code in Mactan renders the law
integrally harmonious and gives due accord to the respective prerogatives of the national
government and LGUs. Sections 133 and 234(a) ensure that the Republic of the
Philippines or its political subdivisions shall not be subjected to any form of local
government taxation, except realty taxes if the beneficial use of the property owned has
been granted for consideration to a taxable entity or person. On the other hand, Section
133 likewise assures that government instrumentalities such as GOCCs may not be
arbitrarily taxed by LGUs, since they could be subjected to local taxation if there is a
specific proviso thereon in the Code. One such proviso is Section 137, which as the
Court found in National Power Corporation, 103 permits the imposition of a franchise tax
on businesses enjoying a franchise, even if it be a GOCC such as NPC. And, as the
Court acknowledged in Mactan, Section 232 provides another exception on the taxability
of instrumentalities.
The majority abjectly refuses to engage Section 232 of the Local Government Code
although it provides the indubitable general rule that LGUs "may levy an annual ad
valorem tax on real property such as land, building, machinery, and other improvements
not hereafter specifically exempted." The specific exemptions are provided by Section
234. Section 232 comes sequentially after Section 133(o),104 and even if the sequencing
is irrelevant, Section 232 would fall under the qualifying phrase of Section 133, "Unless
otherwise provided herein." It is sad, but not surprising that the majority is not willing to
consider or even discuss the general rule, but only the exemptions under Section 133
and Section 234. After all, if the majority is dead set in ruling for MIAA no matter what
the law says, why bother citing what the law does say.
Constitution, Laws and Jurisprudence Have Long Explained the Rationale Behind the
Local Taxation Of GOCCs.
This blithe disregard of precedents, almost all of them unanimously decided, is nowhere
more evident than in the succeeding discussion of the majority, which asserts that the
power of local governments to tax national government instrumentalities be construed
strictly against local governments. The Maceda case, decided before the Local
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Government Code, is cited, as is Basco. This section of the majority employs deliberate
pretense that the Code never existed, or that the fundamentals of local autonomy are of
limited effect in our country. Why is it that the Local Government Code is barely
mentioned in this section of the majority? Because Section 5 of the Code, purposely
omitted by the majority provides for a different rule of interpretation than that asserted:
Section 5. Rules of Interpretation. – In the interpretation of the provisions of this Code,

the following rules shall apply:
(a) Any provision on a power of a local government unit shall be liberally interpreted in its
favor, and in case of doubt, any question thereon shall be resolved in favor of devolution
of powers and of the lower local government unit. Any fair and reasonable doubt as to
the existence of the power shall be interpreted in favor of the local government unit
concerned;
(b) In case of doubt, any tax ordinance or revenue measure shall be construed strictly
against the local government unit enacting it, and liberally in favor of the taxpayer. Any
tax exemption, incentive or relief granted by any local government unit pursuant to the
provisions of this Code shall be construed strictly against the person claiming it; xxx
Yet the majority insists that "there is no point in national and local governments taxing
each other, unless a sound and compelling policy requires such transfer of public funds
from one government pocket to another."105 I wonder whether the Constitution satisfies
the majority's desire for "a sound and compelling policy." To repeat:
Article II. Declaration of Principles and State Policies
Sec. 25. The State shall ensure the autonomy of local governments.
Article X. Local Government
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Section 5. Each local government unit shall have the power to create its own sources of
revenues and to levy taxes, fees, and charges subject to such guidelines and limitations
as the Congress may provide, consistent with the basic policy of local autonomy. Such
taxes, fees, and charges shall accrue exclusively to the local governments.
Or how about the Local Government Code, presumably an expression of sound and
compelling policy considering that it was enacted by the legislature, that veritable source
of all statutes:
SEC. 129. Power to Create Sources of Revenue. - Each local government unit shall
exercise its power to create its own sources of revenue and to levy taxes, fees, and
charges subject to the provisions herein, consistent with the basic policy of local
autonomy. Such taxes, fees, and charges shall accrue exclusively to the local
government units.
Justice Puno, in National Power Corporation v. City of Cabanatuan, 106 provides a more

"sound and compelling policy considerations" that would warrant sustaining the taxability
of government-owned entities by local government units under the Local Government
Code.
Doubtless, the power to tax is the most effective instrument to raise needed revenues to
finance and support myriad activities of the local government units for the delivery of
basic services essential to the promotion of the general welfare and the enhancement of
peace, progress, and prosperity of the people. As this Court observed in the Mactan
case, "the original reasons for the withdrawal of tax exemption privileges granted to
government-owned or controlled corporations and all other units of government were
that such privilege resulted in serious tax base erosion and distortions in the tax
treatment of similarly situated enterprises." With the added burden of devolution, it is
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even more imperative for government entities to share in the requirements of
development, fiscal or otherwise, by paying taxes or other charges due from them.107
I dare not improve on Justice Puno's exhaustive disquisition on the statutory and
jurisprudential shift brought about the acceptance of the principles of local autonomy:
In recent years, the increasing social challenges of the times expanded the scope of
state activity, and taxation has become a tool to realize social justice and the equitable
distribution of wealth, economic progress and the protection of local industries as well as
public welfare and similar objectives. Taxation assumes even greater significance with
the ratification of the 1987 Constitution. Thenceforth, the power to tax is no longer
vested exclusively on Congress; local legislative bodies are now given direct authority to
levy taxes, fees and other charges pursuant to Article X, section 5 of the 1987
Constitution, viz:
"Section 5. Each Local Government unit shall have the power to create its own sources
of revenue, to levy taxes, fees and charges subject to such guidelines and limitations as
the Congress may provide, consistent with the basic policy of local autonomy. Such
taxes, fees and charges shall accrue exclusively to the Local Governments."
This paradigm shift results from the realization that genuine development can be
achieved only by strengthening local autonomy and promoting decentralization of
governance. For a long time, the country's highly centralized government structure has
bred a culture of dependence among local government leaders upon the national
leadership. It has also "dampened the spirit of initiative, innovation and imaginative
resilience in matters of local development on the part of local government leaders." 35
The only way to shatter this culture of dependence is to give the LGUs a wider role in the
delivery of basic services, and confer them sufficient powers to generate their own
sources for the purpose. To achieve this goal, section 3 of Article X of the 1987
Constitution mandates Congress to enact a local government code that will, consistent
with the basic policy of local autonomy, set the guidelines and limitations to this grant of
taxing powers, viz:
"Section 3. The Congress shall enact a local government code which shall provide for a
responsibilities, and resources, and provide for the qualifications, election, appointment
other matters relating to the organization and operation of the local units."
To recall, prior to the enactment of the Rep. Act No. 7160, also known as the Local
Government Code of 1991 (LGC), various measures have been enacted to promote
local autonomy. These include the Barrio Charter of 1959, the Local Autonomy Act of
1959, the Decentralization Act of 1967 and the Local Government Code of 1983. Despite
these initiatives, however, the shackles of dependence on the national government
remained. Local government units were faced with the same problems that hamper their
capabilities to participate effectively in the national development efforts, among which
are: (a) inadequate tax base, (b) lack of fiscal control over external sources of income,
(c) limited authority to prioritize and approve development projects, (d) heavy
dependence on external sources of income, and (e) limited supervisory control over
personnel of national line agencies.
Considered as the most revolutionary piece of legislation on local autonomy, the LGC
effectively deals with the fiscal constraints faced by LGUs. It widens the tax base of
LGUs to include taxes which were prohibited by previous laws such as the imposition of
taxes on forest products, forest concessionaires, mineral products, mining operations,
and the like. The LGC likewise provides enough flexibility to impose tax rates in
accordance with their needs and capabilities. It does not prescribe graduated fixed rates
but merely specifies the minimum and maximum tax rates and leaves the determination
of the actual rates to the respective sanggunian.108
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And the Court's ruling through Justice Azcuna in Philippine Ports Authority v. City of
Iloilo109, provides especially clear and emphatic rationale:
In closing, we reiterate that in taxing government-owned or controlled corporations, the

State ultimately suffers no loss. In National Power Corp. v. Presiding Judge, RTC, Br.
XXV, 38 we elucidated:
Actually, the State has no reason to decry the taxation of NPC's properties, as and by
way of real property taxes. Real property taxes, after all, form part and parcel of the
financing apparatus of the Government in development and nation-building, particularly
in the local government level.
xxxxxxxxx
To all intents and purposes, real property taxes are funds taken by the State with one
hand and given to the other. In no measure can the government be said to have lost
anything.
Finally, we find it appropriate to restate that the primary reason for the withdrawal of tax
exemption privileges granted to government-owned and controlled corporations and all
other units of government was that such privilege resulted in serious tax base erosion
and distortions in the tax treatment of similarly situated enterprises, hence resulting in
the need for these entities to share in the requirements of development, fiscal or
otherwise, by paying the taxes and other charges due from them.110
How does the majority counter these seemingly valid rationales which establish the
soundness of a policy consideration subjecting national instrumentalities to local
taxation? Again, by simply ignoring that these doctrines exist. It is unfortunate if the
majority deems these cases or the principles of devolution and local autonomy as simply
too inconvenient, and relies instead on discredited precedents. Of course, if the majority
faces the issues squarely, and expressly discusses why Basco was right and Mactan
was wrong, then this entire endeavor of the Court would be more intellectually satisfying.
But, this is not a game the majority wants to play.
Mischaracterization of My Views on the Tax Exemption Enjoyed by the National

Government
Instead, the majority engages in an extended attack pertaining to Section 193,

mischaracterizing my views on that provision as if I had been interpreting the provision
as making "the national government, which itself is a juridical person, subject to tax by
local governments since the national government is not included in the enumeration of
exempt entities in Section 193."111
Nothing is farther from the truth. I have never advanced any theory of the sort imputed in
the majority. My main thesis on the matter merely echoes the explicit provision of
Section 193 that unless otherwise provided in the Local Government Code (LGC) all tax
exemptions enjoyed by all persons, whether natural or juridical, including GOCCs, were
withdrawn upon the effectivity of the Code. Since the provision speaks of withdrawal of
tax exemptions of persons, it follows that the exemptions theretofore enjoyed by MIAA
which is definitely a person are deemed withdrawn upon the advent of the Code.
On the other hand, the provision does not address the question of who are beyond the
reach of the taxing power of LGUs. In fine, the grant of tax exemption or the withdrawal
thereof assumes that the person or entity involved is subject to tax. Thus, Section 193
does not apply to entities which were never given any tax exemption. This would include
the national government and its political subdivisions which, as a general rule, are not
subjected to tax in the first place. 112 Corollarily, the national government and its political
subdivisions do not need tax exemptions. And Section 193 which ordains the withdrawal
of tax exemptions is obviously irrelevant to them.
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Section 193 is in point for the disposition of this case as it forecloses dependence for the
grant of tax exemption to MIAA on Section 21 of its charter. Even the majority should
concede that the charter section is now ineffectual, as Section 193 withdraws the tax
exemptions previously enjoyed by all juridical persons.
With Section 193 mandating the withdrawal of tax exemptions granted to all persons
upon the effectivity of the LGC, for MIAA to continue enjoying exemption from realty tax,
it will have to rely on a basis other than Section 21 of its charter.
Lung Center of the Philippines v. Quezon City113 provides another illustrative example of

the jurisprudential havoc wrought about by the majority. Pursuant to its charter, the Lung
Center was organized as a trust administered by an eponymous GOCC organized with
the SEC.114 There is no doubt it is a GOCC, even by the majority's reckoning. Applying
the Administrative Code, it is also considered as an agency, the term encompassing
even GOCCs. Yet since the Administrative Code definition of "instrumentalities"
encompasses agencies, especially those not attached to a line department such as the
Lung Center, it also follows that the Lung Center is an instrumentality, which for the
majority is exempt from all local government taxes, especially real estate taxes. Yet just
in 2004, the Court unanimously held that the Lung Center was not exempt from real
property taxes. Can the majority and Lung Center be reconciled? I do not see how, and
no attempt is made to demonstrate otherwise.
Another key point. The last paragraph of Section 234 specifically asserts that any
previous exemptions from realty taxes granted to or enjoyed by all persons, including all
GOCCs, are thereby withdrawn. The majority's interpretation of Sections 133 and 234(a)
however necessarily implies that all instrumentalities, including GOCCs, can never be
subjected to real property taxation under the Code. If that is so, what then is the sense of
the last paragraph specifically withdrawing previous tax exemptions to all persons,
including GOCCs when juridical persons such as MIAA are anyway, to his view, already
exempt from such taxes under Section 133? The majority's interpretation would
effectively render the express and emphatic withdrawal of previous exemptions to
GOCCs inutile. Ut magis valeat quam pereat. Hence, where a statute is susceptible of
more than one interpretation, the court should adopt such reasonable and beneficial
construction which will render the provision thereof operative and effective, as well as
harmonious with each other.115
But, the majority seems content rendering as absurd the Local Government Code, since
it does not have much use anyway for the Code's general philosophy of fiscal autonomy,
as evidently seen by the continued reliance on Basco or Maceda. Local government rule
has never been a grant of emancipation from the national government. This is the
favorite bugaboo of the opponents of local autonomy—the fallacy that autonomy equates
to independence.
Thus, the conclusion of the majority is that under Section 133(o), MIAA as a government
instrumentality is beyond the reach of local taxation because it is not subject to taxes,
fees or charges of any kind. Moreover, the taxation of national instrumentalities and
agencies by LGUs should be strictly construed against the LGUs, citing Maceda and
Basco. No mention is made of the subsequent rejection of these cases in jurisprudence
following the Local Government Code, including Mactan. The majority is similarly silent
on the general rule under Section 232 on real property taxation or Section 5 on the rules
of construction of the Local Government Code.
V.
MIAA, and not the National Government Is the Owner of the Subject Taxable Properties
Section 232 of the Local Government Code explicitly provides that there are exceptions
to the general rule on rule property taxation, as "hereafter specifically exempted."
Section 234, certainly "hereafter," provides indubitable basis for exempting entities from
real property taxation. It provides the most viable legal support for any claim that an
governmental entity such as the MIAA is exempt from real property taxes. To repeat:
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SECTION 234. Exemptions from Real Property Tax. -- The following are exempted from
xxx
(f) Real property owned by the Republic of the Philippines or any of its political
or otherwise, to a taxable person:
The majority asserts that the properties owned by MIAA are owned by the Republic of
the Philippines, thus placing them under the exemption under Section 234. To arrive at
this conclusion, the majority employs four main arguments.
MIAA Property Is Patrimonial And Not Part of Public Dominion
The majority claims that the Airport Lands and Buildings are property of public dominion
as defined by the Civil Code, and therefore owned by the State or the Republic of the
Philippines. But as pointed out by Justice Azcuna in the first PPA case, if indeed a
property is considered part of the public dominion, such property is "owned by the
general public and cannot be declared to be owned by a public corporation, such as [the
PPA]."
Relevant on this point are the following provisions of the MIAA charter:
Section 3. Creation of the Manila International Airport Authority. – xxx
the ownership and administration of the Authority, subject to existing rights, if any. xxx
Any portion thereof shall not be disposed through sale or through any other mode unless
specifically approved by the President of the Philippines.
Section 22. Transfer of Existing Facilities and Intangible Assets. – All existing public
airport facilities, runways, lands, buildings and other property, movable or immovable,
belonging to the Airport, and all assets, powers rights, interests and privileges belonging
to the Bureau of Air Transportation relating to airport works or air operations, including
all equipment which are necessary for the operation of crash fire and rescue facilities,
are hereby transferred to the Authority.
Clearly, it is the MIAA, and not either the State, the Republic of the Philippines or the
national government that asserts legal title over the Airport Lands and Buildings. There
was an express transfer of ownership between the MIAA and the national government. If
the distinction is to be blurred, as the majority does, between the
State/Republic/Government and a body corporate such as the MIAA, then the MIAA
charter showcases the remarkable absurdity of an entity transferring property to itself.
Nothing in the Civil Code or the Constitution prohibits the State from transferring
ownership over property of public dominion to an entity that it similarly owns. It is just like
a family transferring ownership over the properties its members own into a family
corporation. The family exercises effective control over the administration and
disposition of these properties. Yet for several purposes under the law, such as taxation,
it is the corporation that is deemed to own those properties. A similar situation obtains
with MIAA, the State, and the Airport Lands and Buildings.
The second Public Ports Authority case, penned by Justice Callejo, likewise lays down
useful doctrines in this regard. The Court refuted the claim that the properties of the PPA
were owned by the Republic of the Philippines, noting that PPA's charter expressly
transferred ownership over these properties to the PPA, a situation which similarly
obtains with MIAA. The Court even went as far as saying that the fact that the PPA "had
not been issued any torrens title over the port and port facilities and appurtenances is of
no legal consequence. A torrens title does not, by itself, vest ownership; it is merely an
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evidence of title over properties. xxx It has never been recognized as a mode of
acquiring ownership over real properties."116
The Court further added:
xxx The bare fact that the port and its facilities and appurtenances are accessible to the
general public does not exempt it from the payment of real property taxes. It must be
stressed that the said port facilities and appurtenances are the petitioner's corporate
patrimonial properties, not for public use, and that the operation of the port and its
facilities and the administration of its buildings are in the nature of ordinary business.
The petitioner is clothed, under P.D. No. 857, with corporate status and corporate
powers in the furtherance of its proprietary interests xxx The petitioner is even
empowered to invest its funds in such government securities approved by the Board of
Directors, and derives its income from rates, charges or fees for the use by vessels of
the port premises, appliances or equipment. xxx Clearly then, the petitioner is a profit-
earning corporation; hence, its patrimonial properties are subject to tax.117
There is no doubt that the properties of the MIAA, as with the PPA, are in a sense, for
public use. A similar argument was propounded by the Light Rail Transit Authority in
Light Rail Transit Authority v. Central Board of Assessment, 118 which was cited in
Philippine Ports Authority and deserves renewed emphasis. The Light Rail Transit
Authority (LRTA), a body corporate, "provides valuable transportation facilities to the
paying public."119 It claimed that its carriage-ways and terminal stations are immovably
attached to government-owned national roads, and to impose real property taxes
thereupon would be to impose taxes on public roads. This view did not persuade the
Court, whose decision was penned by Justice (now Chief Justice) Panganiban. It was
noted:
Though the creation of the LRTA was impelled by public service — to provide mass
transportation to alleviate the traffic and transportation situation in Metro Manila — its
operation undeniably partakes of ordinary business. Petitioner is clothed with corporate
status and corporate powers in the furtherance of its proprietary objectives. Indeed, it
operates much like any private corporation engaged in the mass transport industry.
Given that it is engaged in a service-oriented commercial endeavor, its carriageways
and terminal stations are patrimonial property subject to tax, notwithstanding its claim of
being a government-owned or controlled corporation.
xxx
Petitioner argues that it merely operates and maintains the LRT system, and that the
actual users of the carriageways and terminal stations are the commuting public. It adds
that the public use character of the LRT is not negated by the fact that revenue is
obtained from the latter's operations.
We do not agree. Unlike public roads which are open for use by everyone, the LRT is
accessible only to those who pay the required fare. It is thus apparent that petitioner
does not exist solely for public service, and that the LRT carriageways and terminal
stations are not exclusively for public use. Although petitioner is a public utility, it is
nonetheless profit-earning. It actually uses those carriageways and terminal stations in
its public utility business and earns money therefrom.120
xxx
Even granting that the national government indeed owns the carriageways and terminal
stations, the exemption would not apply because their beneficial use has been granted
to petitioner, a taxable entity.121
There is no substantial distinction between the properties held by the PPA, the LRTA,
and the MIAA. These three entities are in the business of operating facilities that
promote public transportation.
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The majority further asserts that MIAA's properties, being part of the public dominion, are
outside the commerce of man. But if this is so, then why does Section 3 of MIAA's
charter authorize the President of the Philippines to approve the sale of any of these
properties? In fact, why does MIAA's charter in the first place authorize the transfer of
these airport properties, assuming that indeed these are beyond the commerce of man?
No Trust Has Been Created Over MIAA Properties For The Benefit of the Republic
The majority posits that while MIAA might be holding title over the Airport Lands and
Buildings, it is holding it in trust for the Republic. A provision of the Administrative Code
is cited, but said provision does not expressly provide that the property is held in trust.
Trusts are either express or implied, and only those situations enumerated under the
Civil Code would constitute an implied trust. MIAA does not fall within this enumeration,
and neither is there a provision in MIAA's charter expressly stating that these properties
are being held in trust. In fact, under its charter, MIAA is obligated to retain up to eighty
percent (80%) of its gross operating income, not an inconsequential sum assuming that
the beneficial owner of MIAA's properties is actually the Republic, and not the MIAA.
Also, the claim that beneficial ownership over the MIAA remains with the government
and not MIAA is ultimately irrelevant. Section 234(a) of the Local Government Code
provides among those exempted from paying real property taxes are "[r]eal property
owned by the [Republic]… except when the beneficial use thereof has been granted, for
consideration or otherwise, to a taxable person." In the context of Section 234(a), the
identity of the beneficial owner over the properties is not determinative as to whether the
exemption avails. It is the identity of the beneficial user of the property owned by the
Republic or its political subdivisions that is crucial, for if said beneficial user is a taxable
person, then the exemption does not lie.
I fear the majority confuses the notion of what might be construed as "beneficial
ownership" of the Republic over the properties of MIAA as nothing more than what
arises as a consequence of the fact that the capital of MIAA is contributed by the
National Government.122 If so, then there is no difference between the State's ownership
rights over MIAA properties than those of a majority stockholder over the properties of a
corporation. Even if such shareholder effectively owns the corporation and controls the
disposition of its assets, the personality of the stockholder remains separately distinct
from that of the corporation. A brief recall of the entrenched rule in corporate law is in
order:
The first consequence of the doctrine of legal entity regarding the separate identity of the
corporation and its stockholders insofar as their obligations and liabilities are concerned,
is spelled out in this general rule deeply entrenched in American jurisprudence:
Unless the liability is expressly imposed by constitutional or statutory provisions, or by

the charter, or by special agreement of the stockholders, stockholders are not personally
liable for debts of the corporation either at law or equity. The reason is that the
corporation is a legal entity or artificial person, distinct from the members who compose
it, in their individual capacity; and when it contracts a debt, it is the debt of the legal
entity or artificial person – the corporation – and not the debt of the individual members.
(13A Fletcher Cyc. Corp. Sec. 6213)
The entirely separate identity of the rights and remedies of a corporation itself and its
individual stockholders have been given definite recognition for a long time. Applying
said principle, the Supreme Court declared that a corporation may not be made to
answer for acts or liabilities of its stockholders or those of legal entities to which it may
be connected, or vice versa. (Palay Inc. v. Clave et. al. 124 SCRA 638) It was likewise
declared in a similar case that a bonafide corporation should alone be liable for
corporate acts duly authorized by its officers and directors. (Caram Jr. v. Court of
Appeals et.al. 151 SCRA, p. 372)123
It bears repeating that MIAA under its charter, is expressly conferred the right to exercise
all the powers of a corporation under the Corporation Law, including the right to
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corporate succession, and the right to sue and be sued in its corporate name.124 The
national government made a particular choice to divest ownership and operation of the
Manila International Airport and transfer the same to such an empowered entity due to
perceived advantages. Yet such transfer cannot be deemed consequence free merely
because it was the State which contributed the operating capital of this body corporate.
The majority claims that the transfer the assets of MIAA was meant merely to effect a
reorganization. The imputed rationale for such transfer does not serve to militate against
the legal consequences of such assignment. Certainly, if it was intended that the transfer
should be free of consequence, then why was it effected to a body corporate, with a
distinct legal personality from that of the State or Republic? The stated aims of the MIAA
could have very well been accomplished by creating an agency without independent
juridical personality.
VI.
MIAA Performs Proprietary Functions
Nonetheless, Section 234(f) exempts properties owned by the Republic of the

Philippines or its political subdivisions from realty taxation. The obvious question is what
comprises "the Republic of the Philippines." I think the key to understanding the scope of
"the Republic" is the phrase "political subdivisions." Under the Constitution, political
subdivisions are defined as "the provinces, cities, municipalities and barangays."125 In
correlation, the Administrative Code of 1987 defines "local government" as referring to
"the political subdivisions established by or in accordance with the Constitution."
Clearly then, these political subdivisions are engaged in the exercise of sovereign
functions and are accordingly exempt. The same could be said generally of the national
government, which would be similarly exempt. After all, even with the principle of local
autonomy, it is inherently noxious and self-defeatist for local taxation to interfere with the
sovereign exercise of functions. However, the exercise of proprietary functions is a
different matter altogether.
Sovereign and Proprietary Functions Distinguished
Sovereign or constituent functions are those which constitute the very bonds of society
and are compulsory in nature, while ministrant or proprietary functions are those
undertaken by way of advancing the general interests of society and are merely
optional.126 An exhaustive discussion on the matter was provided by the Court in Bacani
v. NACOCO:127
xxx This institution, when referring to the national government, has reference to what our
Constitution has established composed of three great departments, the legislative,
executive, and the judicial, through which the powers and functions of government are
exercised. These functions are twofold: constituent and ministrant. The former are those
which constitute the very bonds of society and are compulsory in nature; the latter are
those that are undertaken only by way of advancing the general interests of society, and
are merely optional. President Wilson enumerates the constituent functions as follows:
"'(1) The keeping of order and providing for the protection of persons and property from
violence and robbery.
'(2) The fixing of the legal relations between man and wife and between parents and
children.
'(3) The regulation of the holding, transmission, and interchange of property, and the
determination of its liabilities for debt or for crime.
'(4) The determination of contract rights between individuals.
'(5) The definition and punishment of crime.
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'(6) The administration of justice in civil cases.
'(7) The determination of the political duties, privileges, and relations of citizens.
'(8) Dealings of the state with foreign powers: the preservation of the state from external
danger or encroachment and the advancement of its international interests.'" (Malcolm,
The Government of the Philippine Islands, p. 19.)
The most important of the ministrant functions are: public works, public education, public
charity, health and safety regulations, and regulations of trade and industry. The
principles determining whether or not a government shall exercise certain of these
optional functions are: (1) that a government should do for the public welfare those
things which private capital would not naturally undertake and (2) that a government
should do these things which by its very nature it is better equipped to administer for the
public welfare than is any private individual or group of individuals. (Malcolm, The
Government of the Philippine Islands, pp. 19-20.)
From the above we may infer that, strictly speaking, there are functions which our
government is required to exercise to promote its objectives as expressed in our
Constitution and which are exercised by it as an attribute of sovereignty, and those
which it may exercise to promote merely the welfare, progress and prosperity of the
people. To this latter class belongs the organization of those corporations owned or
controlled by the government to promote certain aspects of the economic life of our
people such as the National Coconut Corporation. These are what we call government-
owned or controlled corporations which may take on the form of a private enterprise or
one organized with powers and formal characteristics of a private corporations under the
Corporation Law.128
The Court in Bacani rejected the proposition that the National Coconut Corporation
exercised sovereign functions:
Does the fact that these corporations perform certain functions of government make
them a part of the Government of the Philippines?
The answer is simple: they do not acquire that status for the simple reason that they do
not come under the classification of municipal or public corporation. Take for instance
the National Coconut Corporation. While it was organized with the purpose of "adjusting
the coconut industry to a position independent of trade preferences in the United States"
and of providing "Facilities for the better curing of copra products and the proper
utilization of coconut by-products," a function which our government has chosen to
exercise to promote the coconut industry, however, it was given a corporate power
separate and distinct from our government, for it was made subject to the provisions of
our Corporation Law in so far as its corporate existence and the powers that it may
exercise are concerned (sections 2 and 4, Commonwealth Act No. 518). It may sue and
be sued in the same manner as any other private corporations, and in this sense it is an
entity different from our government. As this Court has aptly said, "The mere fact that the
Government happens to be a majority stockholder does not make it a public corporation"
(National Coal Co. vs. Collector of Internal Revenue, 46 Phil., 586-587). "By becoming a
stockholder in the National Coal Company, the Government divested itself of its
sovereign character so far as respects the transactions of the corporation. . . . Unlike the
Government, the corporation may be sued without its consent, and is subject to taxation.
Yet the National Coal Company remains an agency or instrumentality of government."
(Government of the Philippine Islands vs. Springer, 50 Phil., 288.)
The following restatement of the entrenched rule by former SEC Chairperson Rosario
Lopez bears noting:
The fact that government corporations are instrumentalities of the State does not divest
them with immunity from suit. (Malong v. PNR, 138 SCRA p. 63) It is settled that when
the government engages in a particular business through the instrumentality of a
corporation, it divests itself pro hoc vice of its sovereign character so as to subject itself
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to the rules governing private corporations, (PNB v. Pabolan 82 SCRA 595) and is to be
treated like any other corporation. (PNR v. Union de Maquinistas Fogonero y Motormen,
84 SCRA 223)
In the same vein, when the government becomes a stockholder in a corporation, it does
not exercise sovereignty as such. It acts merely as a corporator and exercises no other
power in the management of the affairs of the corporation than are expressly given by
the incorporating act. Nor does the fact that the government may own all or a majority of
the capital stock take from the corporation its character as such, or make the
government the real party in interest. (Amtorg Trading Corp. v. US 71 F2d 524, 528)129
MIAA Performs Proprietary Functions No Matter How Vital to the Public Interest
The simple truth is that, based on these accepted doctrinal tests, MIAA performs
proprietary functions. The operation of an airport facility by the State may be imbued with
public interest, but it is by no means indispensable or obligatory on the national
government. In fact, as demonstrated in other countries, it makes a lot of economic
sense to leave the operation of airports to the private sector.
The majority tries to becloud this issue by pointing out that the MIAA does not compete
in the marketplace as there is no competing international airport operated by the private
sector; and that MIAA performs an essential public service as the primary domestic and
international airport of the Philippines. This premise is false, for one. On a local scale,
MIAA competes with other international airports situated in the Philippines, such as
Davao International Airport and MCIAA. More pertinently, MIAA also competes with
other international airports in Asia, at least. International airlines take into account the
quality and conditions of various international airports in determining the number of
flights it would assign to a particular airport, or even in choosing a hub through which
destinations necessitating connecting flights would pass through.
Even if it could be conceded that MIAA does not compete in the market place, the
example of the Philippine National Railways should be taken into account. The PNR
does not compete in the marketplace, and performs an essential public service as the
operator of the railway system in the Philippines. Is the PNR engaged in sovereign
functions? The Court, in Malong v. Philippine National Railways,130 held that it was not.131
Even more relevant to this particular case is Teodoro v. National Airports

Corporation,132 concerning the proper appreciation of the functions performed by the Civil
Aeronautics Administration (CAA), which had succeeded the defunction National
Airports Corporation. The CAA claimed that as an unincorporated agency of the
Republic of the Philippines, it was incapable of suing and being sued. The Court noted:
Among the general powers of the Civil Aeronautics Administration are, under Section 3,
to execute contracts of any kind, to purchase property, and to grant concession rights,
and under Section 4, to charge landing fees, royalties on sales to aircraft of aviation
gasoline, accessories and supplies, and rentals for the use of any property under its
management.
These provisions confer upon the Civil Aeronautics Administration, in our opinion, the
power to sue and be sued. The power to sue and be sued is implied from the power to
transact private business. And if it has the power to sue and be sued on its behalf, the
Civil Aeronautics Administration with greater reason should have the power to prosecute
and defend suits for and against the National Airports Corporation, having acquired all
the properties, funds and choses in action and assumed all the liabilities of the latter. To
deny the National Airports Corporation's creditors access to the courts of justice against
the Civil Aeronautics Administration is to say that the government could impair the
obligation of its corporations by the simple expedient of converting them into
unincorporated agencies. 133
xxx
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Eventually, the charter of the CAA was revised, and it among its expanded functions was
"[t]o administer, operate, manage, control, maintain and develop the Manila International
Airport."134 Notwithstanding this expansion, in the 1988 case of CAA v. Court of
Appeals135 the Court reaffirmed the ruling that the CAA was engaged in "private or non-
governmental functions."136 Thus, the Court had already ruled that the predecessor
agency of MIAA, the CAA was engaged in private or non-governmental functions. These
are more precedents ignored by the majority. The following observation from the
Teodoro case very well applies to MIAA.
The Civil Aeronautics Administration comes under the category of a private entity.
Although not a body corporate it was created, like the National Airports Corporation, not
to maintain a necessary function of government, but to run what is essentially a
business, even if revenues be not its prime objective but rather the promotion of travel
and the convenience of the traveling public. It is engaged in an enterprise which, far from
being the exclusive prerogative of state, may, more than the construction of public roads,
be undertaken by private concerns.137
If the determinative point in distinguishing between sovereign functions and proprietary

functions is the vitality of the public service being performed, then it should be noted that
there is no more important public service performed than that engaged in by public
utilities. But notably, the Constitution itself authorizes private persons to exercise these
functions as it allows them to operate public utilities in this country 138 If indeed such
functions are actually sovereign and belonging properly to the government, shouldn't it
follow that the exercise of these tasks remain within the exclusive preserve of the State?
There really is no prohibition against the government taxing itself,139 and nothing

obscene with allowing government entities exercising proprietary functions to be taxed
for the purpose of raising the coffers of LGUs. On the other hand, it would be an even
more noxious proposition that the government or the instrumentalities that it owns are
above the law and may refuse to pay a validly imposed tax. MIAA, or any similar entity
engaged in the exercise of proprietary, and not sovereign functions, cannot avoid the
adverse-effects of tax evasion simply on the claim that it is imbued with some of the
attributes of government.
VII.
MIAA Property Not Subject to Execution Sale Without Consent Of the President.
Despite the fact that the City of Parañaque ineluctably has the power to impose real
property taxes over the MIAA, there is an equally relevant statutory limitation on this
power that must be fully upheld. Section 3 of the MIAA charter states that "[a]ny portion
[of the [lands transferred, conveyed and assigned to the ownership and administration of
the MIAA] shall not be disposed through sale or through any other mode unless
specifically approved by the President of the Philippines."140
Nothing in the Local Government Code, even with its wide grant of powers to LGUs, can
be deemed as repealing this prohibition under Section 3, even if it effectively forecloses
one possible remedy of the LGU in the collection of delinquent real property taxes. While
the Local Government Code withdrew all previous local tax exemptions of the MIAA and
other natural and juridical persons, it did not similarly withdraw any previously enacted
prohibitions on properties owned by GOCCs, agencies or instrumentalities. Moreover,
the resulting legal effect, subjecting on one hand the MIAA to local taxes but on the other
hand shielding its properties from any form of sale or disposition, is not contradictory or
paradoxical, onerous as its effect may be on the LGU. It simply means that the LGU has
to find another way to collect the taxes due from MIAA, thus paving the way for a
mutually acceptable negotiated solution.141
There are several other reasons this statutory limitation should be upheld and applied to
this case. It is at this juncture that the importance of the Manila Airport to our national life
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and commerce may be accorded proper consideration. The closure of the airport, even
by reason of MIAA's legal omission to pay its taxes, will have an injurious effect to our
national economy, which is ever reliant on air travel and traffic. The same effect would
obtain if ownership and administration of the airport were to be transferred to an LGU or
some other entity which were not specifically chartered or tasked to perform such vital
function. It is for this reason that the MIAA charter specifically forbids the sale or
disposition of MIAA properties without the consent of the President. The prohibition
prevents the peremptory closure of the MIAA or the hampering of its operations on
account of the demands of its creditors. The airport is important enough to be sheltered
by legislation from ordinary legal processes.
Section 3 of the MIAA charter may also be appreciated as within the proper exercise of
executive control by the President over the MIAA, a GOCC which despite its separate
legal personality, is still subsumed within the executive branch of government. The
power of executive control by the President should be upheld so long as such exercise
does not contravene the Constitution or the law, the President having the corollary duty
to faithfully execute the Constitution and the laws of the land.142 In this case, the exercise
of executive control is precisely recognized and authorized by the legislature, and it
should be upheld even if it comes at the expense of limiting the power of local
government units to collect real property taxes.
Had this petition been denied instead with Mactan as basis, but with the caveat that the
MIAA properties could not be subject of execution sale without the consent of the
President, I suspect that the parties would feel little distress. Through such action, both
the Local Government Code and the MIAA charter would have been upheld. The
prerogatives of LGUs in real property taxation, as guaranteed by the Local Government
Code, would have been preserved, yet the concerns about the ruinous effects of having
to close the Manila International Airport would have been averted. The parties would
then be compelled to try harder at working out a compromise, a task, if I might add, they
are all too willing to engage in.143 Unfortunately, the majority will cause precisely the
opposite result of unremitting hostility, not only to the City of Parañaque, but to the
thousands of LGUs in the country.
VIII.
Summary of Points My points may be summarized as follows:
1) Mactan and a long line of succeeding cases have already settled the rule that under
the Local Government Code, enacted pursuant to the constitutional mandate of local
autonomy, all natural and juridical persons, even those GOCCs, instrumentalities and
agencies, are no longer exempt from local taxes even if previously granted an
exemption. The only exemptions from local taxes are those specifically provided under
the Local Government Code itself, or those enacted through subsequent legislation.
2) Under the Local Government Code, particularly Section 232, instrumentalities,

agencies and GOCCs are generally liable for real property taxes. The only exemptions
therefrom under the same Code are provided in Section 234, which include real property
owned by the Republic of the Philippines or any of its political subdivisions.
3) The subject properties are owned by MIAA, a GOCC, holding title in its own name.
MIAA, a separate legal entity from the Republic of the Philippines, is the legal owner of
the properties, and is thus liable for real property taxes, as it does not fall within the
exemptions under Section 234 of the Local Government Code.
4) The MIAA charter expressly bars the sale or disposition of MIAA properties. As a
result, the City of Parañaque is prohibited from seizing or selling these properties by
public auction in order to satisfy MIAA's tax liability. In the end, MIAA is encumbered only
by a limited lien possessed by the City of Parañaque.
On the other hand, the majority's flaws are summarized as follows:
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1) The majority deliberately ignores all precedents which run counter to its hypothesis,
including Mactan. Instead, it relies and directly cites those doctrines and precedents
which were overturned by Mactan. By imposing a different result than that warranted by
the precedents without explaining why Mactan or the other precedents are wrong, the
majority attempts to overturn all these ruling sub silencio and without legal justification, in
a manner that is not sanctioned by the practices and traditions of this Court.
2) The majority deliberately ignores the policy and philosophy of local fiscal autonomy,
as mandated by the Constitution, enacted under the Local Government Code, and
affirmed by precedents. Instead, the majority asserts that there is no sound rationale for
local governments to tax national government instrumentalities, despite the blunt
existence of such rationales in the Constitution, the Local Government Code, and
precedents.
3) The majority, in a needless effort to justify itself, adopts an extremely strained

exaltation of the Administrative Code above and beyond the Corporation Code and the
various legislative charters, in order to impose a wholly absurd definition of GOCCs that
effectively declassifies innumerable existing GOCCs, to catastrophic legal
consequences.
4) The majority asserts that by virtue of Section 133(o) of the Local Government Code,
all national government agencies and instrumentalities are exempt from any form of local
taxation, in contravention of several precedents to the contrary and the proviso under
Section 133, "unless otherwise provided herein [the Local Government Code]."
5) The majority erroneously argues that MIAA holds its properties in trust for the
Republic of the Philippines, and that such properties are patrimonial in character. No
express or implied trust has been created to benefit the national government. The legal
distinction between sovereign and proprietary functions, as affirmed by jurisprudence,
likewise preclude the classification of MIAA properties as patrimonial.
IX.
Epilogue
If my previous discussion still fails to convince on how wrong the majority is, then the
following points are well-worth considering. The majority cites the Bangko Sentral ng
Pilipinas (Bangko Sentral) as a government instrumentality that exercises corporate
powers but not organized as a stock or non-stock corporation. Correspondingly for the
majority, the Bangko ng Sentral is exempt from all forms of local taxation by LGUs by
virtue of the Local Government Code.
Section 125 of Rep. Act No. 7653, The New Central Bank Act, states:
SECTION 125. Tax Exemptions. — The Bangko Sentral shall be exempt for a period of
five (5) years from the approval of this Act from all national, provincial, municipal and city
taxes, fees, charges and assessments.
The New Central Bank Act was promulgated after the Local Government Code if the
BSP is already preternaturally exempt from local taxation owing to its personality as an
"government instrumentality," why then the need to make a new grant of exemption,
which if the majority is to be believed, is actually a redundancy. But even more tellingly,
does not this provision evince a clear intent that after the lapse of five (5) years, that the
Bangko Sentral will be liable for provincial, municipal and city taxes? This is the clear
congressional intent, and it is Congress, not this Court which dictates which entities are
subject to taxation and which are exempt.
Perhaps this notion will offend the majority, because the Bangko Sentral is not even a
government owned corporation, but a government instrumentality, or perhaps "loosely",
a "government corporate entity." How could such an entity like the Bangko Sentral ,
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which is not even a government owned corporation, be subjected to local taxation like
any mere mortal? But then, see Section 1 of the New Central Bank Act:
SECTION 1. Declaration of Policy. — The State shall maintain a central monetary

authority that shall function and operate as an independent and accountable body
corporate in the discharge of its mandated responsibilities concerning money, banking
and credit. In line with this policy, and considering its unique functions and
responsibilities, the central monetary authority established under this Act, while being a
government-owned corporation, shall enjoy fiscal and administrative autonomy.
Apparently, the clear legislative intent was to create a government corporation known as
the Bangko Sentral ng Pilipinas. But this legislative intent, the sort that is evident from
the text of the provision and not the one that needs to be unearthed from the bowels of
the archival offices of the House and the Senate, is for naught to the majority, as it
contravenes the Administrative Code of 1987, which after all, is "the governing law
defining the status and relationship of government agencies and instrumentalities" and
thus superior to the legislative charter in determining the personality of a chartered
entity. Its like saying that the architect who designed a school building is better equipped
to teach than the professor because at least the architect is familiar with the geometry of
the classroom.
Consider further the example of the Philippine Institute of Traditional and Alternative
Health Care (PITAHC), created by Republic Act No. 8243 in 1997. It has similar
characteristics as MIAA in that it is established as a body corporate, 144 and empowered
with the attributes of a corporation, 145 including the power to purchase or acquire real
properties.146 However the PITAHC has no capital stock and no members, thus following
the majority, it is not a GOCC.
The state policy that guides PITAHC is the development of traditional and alternative
health care,147 and its objectives include the promotion and advocacy of alternative,
preventive and curative health care modalities that have been proven safe, effective and
cost effective.148 "Alternative health care modalities" include "other forms of non-
allophatic, occasionally non-indigenous or imported healing methods" which include,
among others "reflexology, acupuncture, massage, acupressure" and chiropractics.149
Given these premises, there is no impediment for the PITAHC to purchase land and
construct thereupon a massage parlor that would provide a cheaper alternative to the
opulent spas that have proliferated around the metropolis. Such activity is in line with the
purpose of the PITAHC and with state policy. Is such massage parlor exempt from realty
taxes? For the majority, it is, for PITAHC is an instrumentality or agency exempt from
local government taxation, which does not fall under the exceptions under Section 234 of
the Local Government Code. Hence, this massage parlor would not just be a shelter for
frazzled nerves, but for taxes as well.
Ridiculous? One might say, certainly a decision of the Supreme Court cannot be
construed to promote an absurdity. But precisely the majority, and the faulty reasoning it
utilizes, opens itself up to all sorts of mischief, and certainly, a tax-exempt massage
parlor is one of the lesser evils that could arise from the majority ruling. This is indeed a
very strange and very wrong decision.
I dissent.
DANTE O. TINGA
Associate Justice
Footnotes
3
Section 3, MIAA Charter.
4
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5
7
Under Rule 45 of the 1997 Rules of Civil Procedure.
8
330 Phil. 392 (1996).
9
MIAA Charter as amended by Executive Order No. 298. See note 2.
10
Batas Pambansa Blg. 68.
11
Section 11 of the MIAA Charter provides:
Contribution to the General Fund for the Maintenance and Operation of other Airports. –
Within thirty (30) days after the close of each quarter, twenty percentum (20%) of the
gross operating income, excluding payments for utilities of tenants and concessionaires
and terminal fee collections, shall be remitted to the General Fund in the National
Treasury to be used for the maintenance and operation of other international and
domestic airports in the country. Adjustments in the amount paid by the Authority to the
National Treasury under this Section shall be made at the end of each year based on the
audited financial statements of the Authority.
12
Section 5(j), MIAA Charter.
13
14
Section 5(k), MIAA Charter.
15
Section 5(o), MIAA Charter.
16
Third Whereas Clause, MIAA Charter.
18
Constitution, Art. X, Sec. 5.
274 Phil. 1060, 1100 (1991) quoting C. Dallas Sands, 3 Statutes and Statutory
19
Construction 207.
20
274 Phil. 323, 339-340 (1991).
21
Constitution, Art. VI, Sec. 28(1).
22
First Whereas Clause, MIAA Charter.
23
30 Phil. 602, 606-607 (1915).
24
102 Phil. 866, 869-870 (1958).
25
PNB v. Puruganan, 130 Phil. 498 (1968). See also Martinez v. CA, 155 Phil. 591
(1974).
26
MIAA Charter, Sec.16.
27
Chavez v. Public Estates Authority, 433 Phil. 506 (2002).
28
29
G.R. No. 144104, 29 June 2004, 433 SCRA 119, 138.
30
Republic Act No. 7653, 14 June 1993, Sec. 5.
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31
Executive Order No. 1061, 5 November 1985, Sec. 3(p).
32
Republic Act No. 4850, 18 July 1966, Sec. 5.
33
Presidential Decree No. 977, 11 August 1976, Section 4(j).
34
Republic Act No. 7227, 13 March 1992, Sec. 3.
35
Presidential Decree No. 857, 23 December 1975, Sec. 6(b)(xvi).
36
Republic Act No. 4663, 18 June 1966, Sec. 7(m).
37
38
39
Republic Act No. 4156, 20 June 1964. Section 4(b).
40
Republic Act No. 3844, 8 August 1963, as amended by Republic Act No. 7907, 23
February 1995.
41
Executive Order No. 81, 3 December 1986.
42
Republic Act No. 8175, 29 December 1995.
43
Presidential Decree No. 252, 21 July 1973, as amended by Presidential Decree No.
1071, 25 January 1977 and Executive Order No. 1067, 25 November 1985.
44
Executive Order No. 80, 3 December 1986.
45
III Records, Constitutional Commission 63 (22 August 1986).
46
2003 ed., 1181.
Manila International Airport Authority v. Airspan Corporation, G.R. No. 157581, 1

47
December 2004, 445 SCRA 471.
TINGA, J.
2
330 Phil. 392 (1996).
3
G.R. No. 91649, 14 May 1991, 197 SCRA 52.
4
451 Phil. 683, 698 (2003).
5
364 Phil. 843, 855 (1999).
6
449 Phil. 233 (2003).
7
G.R. No. 152675 & 152771, 28 April 2004.
9
G.R. No. 144104, 29 June 2004, 433 SCRA 119.
G.R. No. 127383, 18 August 2005, 467 SCRA 280. Per the author of this Dissenting
11
Opinion.
12
Nonetheless, the Court noted therein GSIS's exemption from real property taxes was
reenacted in 1997, and the GSIS at present is exempt from such taxes under the GSIS
Act of 1997. Id., at 299.
WEEK 3
G.R. No. 109791, 14 July 2003, 406 SCRA 88, and G.R. No. 143214, 11 November
13
2004, 442 SCRA 175, respectively.
118 Phil. 1354 (1963).

14
15
396 Phil. 860 (2000).
91 Phil 203 (1952).

17
18
G.R. No. L-51806, 8 November 1988, 167 SCRA 28.
G.R. No. 155692, 23 October 2003, 414 SCRA 327.

19
20
Id. at 333, citing Section 10, Book IV, Title III, Chapter 3, Administrative Code of 1987.
G.R. No. 165827, 16 June 2006.

21
22
G.R. No. 147192, 27 June 2006.
See Mendoza v. De Leon, 33 Phil. 508 (1916).

24
26
Section 193, 232 and 234 Rep. Act No. 7160.
Section 234, Rep. Act No. 7160. Emphasis supplied.

28
30
See City of Davao v. RTC, supra note 11, at 293.
G.R. No. 88921, 31 May 1991, 197 SCRA 771.

33
35
Mactan, supra note 2, at 419-420.
G.R. No. 109791, 14 July 2003, 406 SCRA 88.

38
42
G.R. No. 143214, 11 November 2004, 442 SCRA 175.
P.D. No. 1981. See City of Davao v. RTC, supra note 40, at 289.
46
48
32 Phil. 36, 49; cited in City of Davao v. RTC, supra note 40 at 296-297.
MIAA's Charter (E.O No. 903, as amended) provides:

53
Section 3. Creation of the Manila International Airport Authority. – xxx
the ownership and administration of the Authority, subject to existing rights, if any. xxx
Any portion thereof shall not be disposed through sale or through any other mode unless
specifically approved by the President of the Philippines.
airport facilities, runways, lands, buildings and other property, movable or immovable,
belonging to the Airport, and all assets, powers rights, interests and privileges belonging
to the Bureau of Air Transportation relating to airport works or air operations, including
all equipment which are necessary for the operation of crash fire and rescue facilities,
are hereby transferred to the Authority.
On the other hand, MCIAA's charter (Rep. Act No. 6958) provides:
airport facilities, runways, lands, buildings and other properties, movable or immovable,
WEEK 3
belonging to or presently administered by the airports, and all assets, powers, rights,
interest and privileges relating to airport works or air operations, including all equipment
which are necessary for the operation of air navigation, aerodrome control towers, crash,
fire, and rescue facilities are hereby transferred to the Authority: Provided, however,
That the operational control of all equipment necessary for the operation of radio aids to
air navigation, airways communication, the approach control office and the area control
center shall be retained by the Air Transportation Office. xxx
54
See Section 3, E.O. 903 (as amended), infra note 140; and Section Section 4(c), Rep.
Act No. 6958, which qualifies the power of the MCIAA to sell its properties, providing that
"any asset located in the Mactan International Airport important to national security shall
not be subject to alienation or mortgage by the Authority nor to transfer to any entity
other than the National Government."
See Section 16, E.O. 903 (as amended) and Section 13, Rep. Act No. 6958.
55
56
See Articles 40 to 43, Civil Code.
See Articles 44 to 47, Civil Code.

57
58
This is apparent from such assertions as "When the law vests in a government
instrumentality corporate powers, the instrumentality does not become a corporation.
Unless the government instrumentality is organized as a stock or non-stock corporation,
it remains a government instrumentality exercising not only governmental but also
corporate powers." See Decision, p. 9-10.
See Section 2(10), E.O. 292.

60
61
See Section 2(4), E.O No. 292.
50 Phil. 259 (1927).

62
64
See Sec. 5, Rep. Act No. 6395.
Section 3, Corporation Code.

65
66
See Section 13, Rep. Act No. 6395.

67
68
See Section 16(i), Rep. Act No. 7875.
See Section 3, Rep. Act 8282.

69
71
See Section 2(b), Rep. Act No. 7656, which defines GOCCs as "corporations
organized as a stock or non-stock corporation xxx"
72
See Rep. Act No. 7656, the pertinent provisions of which read:
c. 3. Dividends.—All government-owned or -controlled corporations shall declare and

remit at least fifty percent (50%) of their annual net earnings as cash, stock or property
dividends to the National Government. This section shall also apply to those
government-owned or -controlled corporations whose profit distribution is provided by
their respective charters or by special law, but shall exclude those enumerated in
Section 4 hereof: Provided, That such dividends accruing to the National Government
shall be received by the National Treasury and recorded as income of the General Fund.
Sec. 4. Exemptions.—The provisions of the preceding section notwithstanding,

government-owned or -controlled corporations created or organized by law to administer
real or personal properties or funds held in trust for the use and the benefit of its
WEEK 3
members, shall not be covered by this Act such as, but not limited to: the Government
Service Insurance System, the Home Development Mutual Fund, the Employees
Compensation Commission, the Overseas Workers Welfare Administration, and the
Philippine Medical Care Commission.
See Pres. Decree No. 857 (as amended).

73
74
See Section 10, Pres. Decree No. 857.
See Section 11, Pres. Decree No. 857.

75
76
See Rep. Act No. 7227.

77
78
See Section 47, Rep. Act No. 7916 in relation to Section 5, Pres. Decree No. 66.
79
80
See Executive Order No. 603, as amended.
See Article 6, Section 15 of Executive Order No. 603, as amended.

81
82
See Rep. Act No. 7653. If there is any doubt whether the BSP was intended to be
covered by Rep. Act No. 7656, see Section 2(b), Rep. Act No. 7656, which states that
"This term [GOCCs shall also include financial institutions, owned or controlled by the
National Government, but shall exclude acquired asset corporations, as defined in the
next paragraphs, state universities, and colleges."
See Section 2, 43 and 44 Rep. Act No. 7653.

83
85

90
91

92
93

94
95
See e.g., Sections 1 & 2, Rep. Act No. 6070.
Section 1. Declaration of Policy. – It is hereby declared to be the policy of the Congress

to foster the accelerated and balanced growth of the Province of Ilocos Sur, within the
context of national plans and policies for social and economic development, through the
leadership, guidance, and support of the government. To achieve this end, it is
recognized that a government corporation should be created for the purpose of drawing
up the necessary plans of provincial development; xxx
Sec. 2. Ilocos Sur Development Authority created. – There is hereby created a body
corporate to be known as the Ilocos Sur Development Authority xxx. The Authority shall
execute the powers and functions herein vested and conferred upon it in such manner
as will in its judgment, aid to the fullest possible extent in carrying out the aims and
purposes set forth below."
96
See Art. 37, Civil Code, which provides in part, "Juridical capacity, which is the fitness
to be the subject of legal relations…"
WEEK 3
97
See rollo, p. 18. "Petitioner [MIAA] is a government-owned and controlled corporation
with original charter as it was created by virtue of Executive Order No. 903 issued by
then President Ferdinand E. Marcos on July 21, 1983, as amended by Executive Order
No. 298 issued by President Corazon C. Aquino on July 26, 1987, and with office
address at the MIAA Administration Bldg Complex, MIAA Road, Pasay City." (emphasis
supplied).
See "Department of Budget and Management – Web Linkages," http://www.dbm.

98
gov.ph/web_linkages.htm (Last visited 25 February 2005).
G.R. No. 104217, 5 December 1994, 238 SCRA 714; per Quiazon, J.. "Petitioner
99
MIAA is a government-owned and controlled corporation for the purpose, among others,
of encouraging and promoting international and domestic air traffic in the Philippines as
a means of making the Philippines a center of international trade and tourism and
accelerating the development of the means of transportation and communications in the
country". Id. at 716.
100
See Section 23, Chapter 6, Title XV, Book IV, Administrative Code of 1987.
104
Assuming that there is conflict between Section 133(o), Section 193, Section 232 and
Section 234 of the Local Government Code, the rule in statutory construction is, "If there
be no such ground for choice between inharmonious provisions or sections, the latter
provision or section, being the last expression of the legislative will, must, in
construction, vacate the former to the extent of the repugnancy. It has been held that in
case of irreconcilable conflict between two provisions of the same statute, the last in
order of position is frequently held to prevail, unless it clearly appears that the intent of
the legislature is otherwise." R. Agpalo, Statutory Construction (3rd ed., 1995), p. 201;
citing Lichauco & Co. v. Apostol, 44 Phil. 138 (1922); Cuyegkeng v. Cruz, 108 Phil. 1147
(1960); Montenegro v. Castañeda, 91 Phil. 882 (1952).
110
Id, at 102; citing National Power Corp. v. Presiding Judge, RTC, Br. XXV, 190 SCRA
477 (1990).
112
"Unless otherwise expressed in the tax law, the government and its political
subdivisions are exempt therefrom." J. Vitug and E. Acosta, Tax Law and Jurisprudence
(2nd ed., 2000), at 36.
114
See P.D. No. 1423.
115
R. Agpalo, Statutory Construction (3rd ed., 1995), at 199; citing Javellana v. Tayo,
G.R. No. 18919, 29 December 1982, 6 SCRA 1042 (1962); Radiola-Toshiba Phil., Inc. v.
IAC, 199 SCRA 373 (1991).
116
PPA v. City of Iloilo, supra note 42.
122
See Section 5 and 10, E.O. No. 903.
See Section 1, Article X of the Constitution, which reads: "The territorial and political
125
subdivisions of the Republic of the Philippines are the provinces, cities, municipalities
and barangays xxx"
126
Romualdez-Yap v. CSC, G.R. No. 104226, 12 August 1993, 225 SCRA 285, 294.
127
100 Phil. 468. (1956)
130
G.R. No. L-49930, 7 August 1985, 138 SCRA 63.
"Did the State act in a sovereign capacity or in a corporate capacity when it organized
131
the PNR for the purpose of engaging in transportation? Did it act differently when it
organized the PNR as successor of the Manila Railroad Company? xxx We hold that in
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the instant case the State divested itself of its sovereign capacity when it organized the
PNR which is no different from its predecessor, the Manila Railroad Company." Id, at 66.
Section 32(24), Rep. Act No. 776. See CAA v. Court of Appeals, supra note 18, at 36.
134
137
Teodoro v. National Airports Commission, supra note 17, at 207.
See Article XII, Section 11, Const.

138
139
Vitug & Acosta, supra note 112, at 35; citing Bisaya Land Transportation Co., Inc. v.
Collector of Internal Revenue, L-11812, 29 May 1959, 105 Phil. 1338.
140
See Section 3, E.O. 903, as amended.
Indeed, last 4 February 2005, the MIAA filed a Manifestation before this Court stating
141
that its new General Manager had been conferring with the newly elected local
government of Parañaque with the end of settling the case at mutually acceptable terms.
See rollo, pp. 315-316. While this Manifestation was withdrawn a few weeks later, see
rollo, pp. 320-322, it still stands as proof that the parties are nevertheless willing to
explore an extrajudicial settlement of this case.
See Section 17, Article VII, Constitution. "The President shall have control of all the
142
executive departments. He shall ensure that the laws be faithfully executed."
See Section 2, 3 (b),5, 6 (s) Rep. Act No. 8423.

144
149
See Section 4(d), Rep. Act No. 8423.
7. ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION VS CITY

OF MANILA, JULY 31, 1967
G.R. No. L-24693 July 31, 1967
ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL

DEL MAR INC. and GO CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.
Panganiban, Abad and Associates Law Office for respondent-appellant.

J. M. Aruego, Tenchavez and Associates for intervenor-appellee.
FERNANDO, J.: EN BANC
The principal question in this appeal from a judgment of the lower court in an action for
prohibition is whether Ordinance No. 4760 of the City of Manila is violative of the due
process clause. The lower court held that it is and adjudged it "unconstitutional, and,
therefore, null and void." For reasons to be more specifically set forth, such judgment
must be reversed, there being a failure of the requisite showing to sustain an attack
against its validity.
The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the
petitioners, Ermita-Malate Hotel and Motel Operators Association, one of its members,
Hotel del Mar Inc., and a certain Go Chiu, who is "the president and general manager of
the second petitioner" against the respondent Mayor of the City of Manila who was sued
in his capacity as such "charged with the general power and duty to enforce ordinances
of the City of Manila and to give the necessary orders for the faithful execution and
WEEK 3
enforcement of such ordinances." (par. 1). It was alleged that the petitioner non-stock
corporation is dedicated to the promotion and protection of the interest of its eighteen
(18) members "operating hotels and motels, characterized as legitimate businesses duly
licensed by both national and city authorities, regularly paying taxes, employing and
giving livelihood to not less than 2,500 person and representing an investment of more
than P3 million."1 (par. 2). It was then alleged that on June 13, 1963, the Municipal Board
of the City of Manila enacted Ordinance No. 4760, approved on June 14, 1963 by the
then Vice-Mayor Herminio Astorga, who was at the time acting as Mayor of the City of
Manila. (par. 3).
After which the alleged grievances against the ordinance were set forth in detail. There
was the assertion of its being beyond the powers of the Municipal Board of the City of
Manila to enact insofar as it would regulate motels, on the ground that in the revised
charter of the City of Manila or in any other law, no reference is made to motels; that
Section 1 of the challenged ordinance is unconstitutional and void for being
unreasonable and violative of due process insofar as it would impose P6,000.00 fee per
annum for first class motels and P4,500.00 for second class motels; that the provision in
the same section which would require the owner, manager, keeper or duly authorized
representative of a hotel, motel, or lodging house to refrain from entertaining or
accepting any guest or customer or letting any room or other quarter to any person or
persons without his filling up the prescribed form in a lobby open to public view at all
times and in his presence, wherein the surname, given name and middle name, the date
of birth, the address, the occupation, the sex, the nationality, the length of stay and the
number of companions in the room, if any, with the name, relationship, age and sex
would be specified, with data furnished as to his residence certificate as well as his
passport number, if any, coupled with a certification that a person signing such form has
personally filled it up and affixed his signature in the presence of such owner, manager,
keeper or duly authorized representative, with such registration forms and records kept
and bound together, it also being provided that the premises and facilities of such hotels,
motels and lodging houses would be open for inspection either by the City Mayor, or the
Chief of Police, or their duly authorized representatives is unconstitutional and void
again on due process grounds, not only for being arbitrary, unreasonable or oppressive
but also for being vague, indefinite and uncertain, and likewise for the alleged invasion of
the right to privacy and the guaranty against self-incrimination; that Section 2 of the
challenged ordinance classifying motels into two classes and requiring the maintenance
of certain minimum facilities in first class motels such as a telephone in each room, a
dining room or, restaurant and laundry similarly offends against the due process clause
for being arbitrary, unreasonable and oppressive, a conclusion which applies to the
portion of the ordinance requiring second class motels to have a dining room; that the
provision of Section 2 of the challenged ordinance prohibiting a person less than 18
years old from being accepted in such hotels, motels, lodging houses, tavern or common
inn unless accompanied by parents or a lawful guardian and making it unlawful for the
owner, manager, keeper or duly authorized representative of such establishments to
lease any room or portion thereof more than twice every 24 hours, runs counter to the
due process guaranty for lack of certainty and for its unreasonable, arbitrary and
oppressive character; and that insofar as the penalty provided for in Section 4 of the
challenged ordinance for a subsequent conviction would, cause the automatic
cancellation of the license of the offended party, in effect causing the destruction of the
business and loss of its investments, there is once again a transgression of the due
process clause.
There was a plea for the issuance of preliminary injunction and for a final judgment
declaring the above ordinance null and void and unenforceable. The lower court on July
6, 1963 issued a writ of preliminary injunction ordering respondent Mayor to refrain from
enforcing said Ordinance No. 4760 from and after July 8, 1963.
In the a answer filed on August 3, 1963, there was an admission of the personal
circumstances regarding the respondent Mayor and of the fact that petitioners are
licensed to engage in the hotel or motel business in the City of Manila, of the provisions
of the cited Ordinance but a denial of its alleged nullity, whether on statutory or
constitutional grounds. After setting forth that the petition did fail to state a cause of
action and that the challenged ordinance bears a reasonable relation, to a proper

WEEK 3
purpose, which is to curb immorality, a valid and proper exercise of the police power and
that only the guests or customers not before the court could complain of the alleged
invasion of the right to privacy and the guaranty against self incrimination, with the
assertion that the issuance of the preliminary injunction ex parte was contrary to law,
respondent Mayor prayed for, its dissolution and the dismissal of the petition.
Instead of evidence being offered by both parties, there was submitted a stipulation of
facts dated September 28, 1964, which reads:
1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and
Hotel del Mar Inc. are duly organized and existing under the laws of the Philippines, both
with offices in the City of Manila, while the petitioner Go Chin is the president and
general manager of Hotel del Mar Inc., and the intervenor Victor Alabanza is a resident
of Baguio City, all having the capacity to sue and be sued;
2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief
executive of the City of Manila charged with the general power and duty to enforce
ordinances of the City of Manila and to give the necessary orders for the faithful
execution and enforcement of such ordinances;
3. That the petitioners are duly licensed to engage in the business of operating hotels
and motels in Malate and Ermita districts in Manila;
4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance
No. 4760, which was approved on June 14, 1963, by Vice-Mayor Herminio Astorga, then
the acting City Mayor of Manila, in the absence of the respondent regular City Mayor,
amending sections 661, 662, 668-a, 668-b and 669 of the compilation of the ordinances
of the City of Manila besides inserting therein three new sections. This ordinance is
similar to the one vetoed by the respondent Mayor (Annex A) for the reasons stated in its
4th Indorsement dated February 15, 1963 (Annex B);
5. That the explanatory note signed by then Councilor Herminio Astorga was submitted
with the proposed ordinance (now Ordinance 4760) to the Municipal Board, copy of
which is attached hereto as Annex C;
6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license
fees paid by the 105 hotels and motels (including herein petitioners) operating in the City
of Manila.
Thereafter came a memorandum for respondent on January 22, 1965, wherein stress
was laid on the presumption of the validity of the challenged ordinance, the burden of
showing its lack of conformity to the Constitution resting on the party who assails it,
citing not only U.S. v. Salaveria, but likewise applicable American authorities. Such a
memorandum likewise refuted point by point the arguments advanced by petitioners
against its validity. Then barely two weeks later, on February 4, 1965, the memorandum
for petitioners was filed reiterating in detail what was set forth in the petition, with
citations of what they considered to be applicable American authorities and praying for a
judgment declaring the challenged ordinance "null and void and unenforceable" and
making permanent the writ of preliminary injunction issued.
After referring to the motels and hotels, which are members of the petitioners
association, and referring to the alleged constitutional questions raised by the party, the
lower court observed: "The only remaining issue here being purely a question of law, the
parties, with the nod of the Court, agreed to file memoranda and thereafter, to submit the
case for decision of the Court." It does appear obvious then that without any evidence
submitted by the parties, the decision passed upon the alleged infirmity on constitutional
grounds of the challenged ordinance, dismissing as is undoubtedly right and proper the
untenable objection on the alleged lack of authority of the City of Manila to regulate
motels, and came to the conclusion that "the challenged Ordinance No. 4760 of the City
of Manila, would be unconstitutional and, therefore, null and void." It made permanent

WEEK 3
the preliminary injunction issued against respondent Mayor and his agents "to restrain
him from enforcing the ordinance in question." Hence this appeal.
As noted at the outset, the judgment must be reversed. A decent regard for
constitutional doctrines of a fundamental character ought to have admonished the lower
court against such a sweeping condemnation of the challenged ordinance. Its decision
cannot be allowed to stand, consistently with what has hitherto been the accepted
standards of constitutional adjudication, in both procedural and substantive aspects.
Primarily what calls for a reversal of such a decision is the absence of any evidence to
offset the presumption of validity that attaches to a challenged statute or ordinance. As
was expressed categorically by Justice Malcolm: "The presumption is all in favor of
validity x x x . The action of the elected representatives of the people cannot be lightly
set aside. 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 x x x . 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.2
It admits of no doubt therefore that there being a presumption of validity, the necessity
for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face
which is not the case here. The principle has been nowhere better expressed than in the
leading case of O'Gorman & Young v. Hartford Fire Insurance Co.,3 where the American
Supreme Court through Justice Brandeis tersely and succinctly summed up the matter
thus: The statute here questioned deals with a subject clearly within the scope of the
police power. We are asked to declare it void on the ground that the specific method of
regulation prescribed is unreasonable and hence deprives the plaintiff of due process of
law. As underlying questions of fact may condition the constitutionality of legislation of
this character, the resumption of constitutionality must prevail in the absence of some
factual foundation of record for overthrowing the statute." No such factual foundation
being laid in the present case, the lower court deciding the matter on the pleadings and
the stipulation of facts, the presumption of validity must prevail and the judgment against
the ordinance set aside.
Nor may petitioners assert with plausibility that on its face the ordinance is fatally
defective as being repugnant to the due process clause of the Constitution. The mantle
of protection associated with the due process guaranty does not cover petitioners. This
particular manifestation of a police power measure being specifically aimed to safeguard
public morals is immune from such imputation of nullity resting purely on conjecture and
unsupported by anything of substance. To hold otherwise would be to unduly restrict and
narrow the scope of police power which has been properly characterized as the most
essential, insistent and the least limitable of powers, 4 extending as it does "to all the
great public needs."5 It would be, to paraphrase another leading decision, to destroy the
very purpose of the state if it could be deprived or allowed itself to be deprived of its
competence to promote public health, public morals, public safety and the genera
welfare.6 Negatively put, police power is "that inherent and plenary power in the State
which enables it to prohibit all that is hurt full to the comfort, safety, and welfare of
society.7
There is no question but that the challenged ordinance was precisely enacted to
minimize certain practices hurtful to public morals. The explanatory note of the Councilor
Herminio Astorga included as annex to the stipulation of facts, speaks of the alarming
increase in the rate of prostitution, adultery and fornication in Manila traceable in great
part to the existence of motels, which "provide a necessary atmosphere for clandestine
entry, presence and exit" and thus become the "ideal haven for prostitutes and thrill-
seekers." The challenged ordinance then proposes to check the clandestine harboring of
transients and guests of these establishments by requiring these transients and guests
to fill up a registration form, prepared for the purpose, in a lobby open to public view at
all times, and by introducing several other amendatory provisions calculated to shatter
the privacy that characterizes the registration of transients and guests." Moreover, the
WEEK 3
increase in the licensed fees was intended to discourage "establishments of the kind
from operating for purpose other than legal" and at the same time, to increase "the
income of the city government." It would appear therefore that the stipulation of facts, far
from sustaining any attack against the validity of the ordinance, argues eloquently for it.
It is a fact worth noting that this Court has invariably stamped with the seal of its
approval, ordinances punishing vagrancy and classifying a pimp or procurer as a
vagrant;8 provide a license tax for and regulating the maintenance or operation of public
dance halls;9 prohibiting gambling;10 prohibiting jueteng;11 and monte;12 prohibiting
playing of panguingui on days other than Sundays or legal holidays;13 prohibiting the
operation of pinball machines;14 and prohibiting any person from keeping, conducting or
maintaining an opium joint or visiting a place where opium is smoked or otherwise
used,15 all of which are intended to protect public morals.
On the legislative organs of the government, whether national or local, primarily rest the
exercise of the police power, which, it cannot be too often emphasized, is the power to
prescribe regulations to promote the health, morals, peace, good order, safety and
general welfare of the people. In view of the requirements of due process, equal
protection and other applicable constitutional guaranties however, the exercise of such
police power insofar as it may affect the life, liberty or property of any person is subject
to judicial inquiry. Where such exercise of police power may be considered as either
capricious, whimsical, unjust or unreasonable, a denial of due process or a violation of
any other applicable constitutional guaranty may call for correction by the courts.
We are thus led to considering the insistent, almost shrill tone, in which the objection is
raised to the question of due process.16 There is no controlling and precise definition of
due process. It furnishes though a standard to which the governmental action should
conform in order that deprivation of life, liberty or property, in each appropriate case, be
valid. What then is the standard of due process which must exist both as a procedural
and a substantive requisite to free the challenged ordinance, or any governmental action
for that matter, from the imputation of legal infirmity sufficient to spell its doom? It is
responsiveness to the supremacy of reason, obedience to the dictates of justice.
Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due
process requirement, official action, to paraphrase Cardozo, must not outrun the bounds
of reason and result in sheer oppression. Due process is thus hostile to any official
action marred by lack of reasonableness. Correctly it has been identified as freedom
from arbitrariness. It is the embodiment of the sporting idea of fair play. 17 It exacts fealty
"to those strivings for justice" and judges the act of officialdom of whatever branch "in the
light of reason drawn from considerations of fairness that reflect [democratic] traditions
of legal and political thought."18 It is not a narrow or "technical conception with fixed
content unrelated to time, place and circumstances,"19 decisions based on such a clause
requiring a "close and perceptive inquiry into fundamental principles of our
society."20 Questions of due process are not to be treated narrowly or pedantically in
slavery to form or phrases.21
It would thus be an affront to reason to stigmatize an ordinance enacted precisely to

meet what a municipal lawmaking body considers an evil of rather serious proportion an
arbitrary and capricious exercise of authority. It would seem that what should be deemed
unreasonable and what would amount to an abdication of the power to govern is inaction
in the face of an admitted deterioration of the state of public morals. To be more specific,
the Municipal Board of the City of Manila felt the need for a remedial measure. It
provided it with the enactment of the challenged ordinance. A strong case must be found
in the records, and, as has been set forth, none is even attempted here to attach to an
ordinance of such character the taint of nullity for an alleged failure to meet the due
process requirement. Nor does it lend any semblance even of deceptive plausibility to
petitioners' indictment of Ordinance No. 4760 on due process grounds to single out such
features as the increased fees for motels and hotels, the curtailment of the area of
freedom to contract, and, in certain particulars, its alleged vagueness.
Admittedly there was a decided increase of the annual license fees provided for by the
challenged ordinance for hotels and motels, 150% for the former and over 200% for the
latter, first-class motels being required to pay a P6,000 annual fee and second-class
WEEK 3
motels, P4,500 yearly. It has been the settled law however, as far back as 1922 that
municipal license fees could be classified into those imposed for regulating occupations
or regular enterprises, for the regulation or restriction of non-useful occupations or
enterprises and for revenue purposes only. 22 As was explained more in detail in the
above Cu Unjieng case: (2) Licenses for non-useful occupations are also incidental to
the police power and the right to exact a fee may be implied from the power to license
and regulate, but in fixing amount of the license fees the municipal corporations are
allowed a much wider discretion in this class of cases than in the former, and aside from
applying the well-known legal principle that municipal ordinances must not be
unreasonable, oppressive, or tyrannical, courts have, as a general rule, declined to
interfere with such discretion. The desirability of imposing restraint upon the number of
persons who might otherwise engage in non-useful enterprises is, of course, generally
an important factor in the determination of the amount of this kind of license fee. Hence
license fees clearly in the nature of privilege taxes for revenue have frequently been
upheld, especially in of licenses for the sale of liquors. In fact, in the latter cases the fees
have rarely been declared unreasonable.23
Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine
earlier announced by the American Supreme Court that taxation may be made to
implement the state's police power. Only the other day, this Court had occasion to affirm
that the broad taxing authority conferred by the Local Autonomy Act of 1959 to cities and
municipalities is sufficiently plenary to cover a wide range of subjects with the only
limitation that the tax so levied is for public purposes, just and uniform.25
As a matter of fact, even without reference to the wide latitude enjoyed by the City of
Manila in imposing licenses for revenue, it has been explicitly held in one case that
"much discretion is given to municipal corporations in determining the amount," here the
license fee of the operator of a massage clinic, even if it were viewed purely as a police
power measure.26 The discussion of this particular matter may fitly close with this
pertinent citation from another decision of significance: "It is urged on behalf of the
plaintiffs-appellees that the enforcement of the ordinance could deprive them of their
lawful occupation and means of livelihood because they can not rent stalls in the public
markets. But it appears that plaintiffs are also dealers in refrigerated or cold storage
meat, the sale of which outside the city markets under certain conditions is permitted x x
x . And surely, the mere fact, that some individuals in the community may be deprived of
their present business or a particular mode of earning a living cannot prevent the
exercise of the police power. As was said in a case, persons licensed to pursue
occupations which may in the public need and interest be affected by the exercise of the
police power embark in these occupations subject to the disadvantages which may
result from the legal exercise of that power."27
Nor does the restriction on the freedom to contract, insofar as the challenged ordinance
makes it unlawful for the owner, manager, keeper or duly authorized representative of
any hotel, motel, lodging house, tavern, common inn or the like, to lease or rent room or
portion thereof more than twice every 24 hours, with a proviso that in all cases full
payment shall be charged, call for a different conclusion. Again, such a limitation cannot
be viewed as a transgression against the command of due process. It is neither
unreasonable nor arbitrary. Precisely it was intended to curb the opportunity for the
immoral or illegitimate use to which such premises could be, and, according to the
explanatory note, are being devoted. How could it then be arbitrary or oppressive when
there appears a correspondence between the undeniable existence of an undesirable
situation and the legislative attempt at correction. Moreover, petitioners cannot be
unaware that every regulation of conduct amounts to curtailment of liberty which as
pointed out by Justice Malcolm cannot be absolute. Thus: "One thought which runs
through all these different conceptions of liberty is plainly apparent. It is this: 'Liberty' as
understood in democracies, is not license; it is 'liberty regulated by law.' Implied in the
term is restraint by law for the good of the individual and for the greater good of the
peace and order of society and the general well-being. No man can do exactly as he
pleases. Every man must renounce unbridled license. The right of the individual is
necessarily subject to reasonable restraint by general law for the common good x x x
The liberty of the citizen may be restrained in the interest of the public health, or of the
public order and safety, or otherwise within the proper scope of the police power."28

WEEK 3
A similar observation was made by Justice Laurel: "Public welfare, then, lies at the
bottom of the enactment of said law, and the state in order to promote the general
welfare may interfere with personal liberty, with property, and with business and
occupations. Persons and property may be subjected to all kinds of restraints and
burdens, in order to secure the general comfort, health, and prosperity of the state x x x
To this fundamental aim of our Government the rights of the individual are subordinated.
Liberty is a blessing without which life is a misery, but liberty should not be made to
prevail over authority because then society will fall into anarchy. Neither should authority
be made to prevail over liberty because then the individual will fall into slavery. The
citizen should achieve the required balance of liberty and authority in his mind through
education and personal discipline, so that there may be established the resultant
equilibrium, which means peace and order and happiness for all.29
It is noteworthy that the only decision of this Court nullifying legislation because of undue
deprivation of freedom to contract, People v. Pomar,30 no longer "retains its virtuality as a
living principle. The policy of laissez faire has to some extent given way to the
assumption by the government of the right of intervention even in contractual relations
affected with public interest.31 What may be stressed sufficiently is that if the liberty
involved were freedom of the mind or the person, the standard for the validity of
governmental acts is much more rigorous and exacting, but where the liberty curtailed
affects at the most rights of property, the permissible scope of regulatory measure is
wider.32 How justify then the allegation of a denial of due process?
Lastly, there is the attempt to impugn the ordinance on another due process ground by
invoking the principles of vagueness or uncertainty. It would appear from a recital in the
petition itself that what seems to be the gravamen of the alleged grievance is that the
provisions are too detailed and specific rather than vague or uncertain. Petitioners,
however, point to the requirement that a guest should give the name, relationship, age
and sex of the companion or companions as indefinite and uncertain in view of the
necessity for determining whether the companion or companions referred to are those
arriving with the customer or guest at the time of the registry or entering the room With
him at about the same time or coming at any indefinite time later to join him; a proviso in
one of its sections which cast doubt as to whether the maintenance of a restaurant in a
motel is dependent upon the discretion of its owners or operators; another proviso which
from their standpoint would require a guess as to whether the "full rate of payment" to be
charged for every such lease thereof means a full day's or merely a half-day's rate. It
may be asked, do these allegations suffice to render the ordinance void on its face for
alleged vagueness or uncertainty? To ask the question is to answer it. From Connally v.
General Construction Co.33 to Adderley v. Florida,34 the principle has been consistently
upheld that what makes a statute susceptible to such a charge is an enactment either
forbidding or requiring the doing of an act that men of common intelligence must
necessarily guess at its meaning and differ as to its application. Is this the situation
before us? A citation from Justice Holmes would prove illuminating: "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."35
That is all then that this case presents. As it stands, with all due allowance for the
arguments pressed with such vigor and determination, the attack against the validity of
the challenged ordinance cannot be considered a success. Far from it. Respect for
constitutional law principles so uniformly held and so uninterruptedly adhered to by this
Court compels a reversal of the appealed decision.
Wherefore, the judgment of the lower court is reversed and the injunction issued lifted
forthwith. With costs.
Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ.,
concur.
Concepcion, C.J. and Dizon, J., are on leave.
Footnotes

WEEK 3
The eighteen members are Waldorf Hotel, Hotel Monte Carlo, Golden Gate Motel,
1
Miami Hotel, Palm Spring Hotel, Flamingo Motel, Holiday Motel, Rainbow Motel, Palo
Alto Hotel, Paradise Hotel, Mayfair Hotel, Siesta Court, Sun Valley Hotel, Springfield
Hotel, New Palace Hotel, Hotel del Mar Longbeach Hotel and Ritz Motel.
2
U.S. V. Salaveria (1918), 39 Phil. 102, at p. 111. There was an affirmation of the
presumption of validity of municipal ordinance as announced in the leading Salaveria
decision in Eboña v. Daet, (1950) 85 Phil. 369.
3
282 US 251, 328, January 5, 1931.
4
Cf. Ichong v. Hernandez, (1957) 101 Phil. 1155, at p. 1163. Also: "To Frankfurter the
police power, true to its etymology is the power to shape policy. It defies legal definition;
as a response to the dynamic aspects of society, it cannot be reduced to a constitutional
formula. The law must be sensitive to life; in resolving cases, it must not fall back upon
sterile claims; its judgments are not derived from an abstract duel between liberty and
the police power. Instead, in a world of trusts and unions and large-scale industry, it
must meet the challenge of drastic social change. For him as for Holmes, 'society is
more than bargain and business' and the jurist's art rises to no higher peak than in
vindicating interests not represented by the items in a balance-sheet. In a progressive
society, new interests emerge, new attitudes appeal, social consciousness quickens. In
the face of the unknown one cannot choose with certainty. Nor as yet, has the whole of
truth been brought up from its bottomless well and how fragile in scientific proof is the
ultimate validity of any particular economic adjustment. Social development is a process
of trial and error; in the making of policy the fullest possible opportunity must be given for
the play of the human mind. If Congress or legislature does not regulate, laissez faire
— not the individual — must be the regulator. (Hamilton, Preview of a Justice (1939) 48
Yale Law Journal, 819).
5
Noble state Bank v. Haskell, 219 U.S. 412.
6
U.S. v. Gomez-Jesus, (1915) 31 Phil. 218.
7
Rubi v. Provincial Board, (1918) 39 Phil. 660.
8
U.S. vs. Giner Cruz, (1918) 38 Phil. 677.
9
U.S. vs. Rodriguez, (1918) 38 Phil. 759. See also Sarmiento v. Belderol, L-15719, May
31, 1961; Lapera v. Vicente, L-18102, June 30, 1962.
10
U.S. v. Pacis, (1915) 31 Phil. 524.
U.S. vs. Espiritu-Santo, (1912) 23 Phil. 610; U.S. vs. Joson, (1913) 26 Phil. 1; People
11
vs. Chan Hong, (1938) 65 Phil. 625.
12
U.S. v. Tamparong, (1915) 31 Phil. 321.
13
U.S. v. Salaveria, (1918) 39 Phil. 102.
Uy Ha v. The City Mayor, L-14149, May 30, 1969; Miranda v. City of Manila, L-17252,
14
May 31, 1961.
15
U.S. v. Ten Yu, (1912) 24 Phil. 1.
16
There is no occasion to consider even cursorily the alleged invasion of the right of
privacy or the prohibition against self-incrimination. Petitioners obviously are not the
proper parties to do so. Nor may such an incurable defect be remedied by an
accommodating intervenor "who has always taken advantage of as he exclusively relies
on, the facilities, services and accommodations offered by petitioner-motels. A general
merchant, doing business not only in Baguio City but in the City of Manila, has no

WEEK 3
legitimate cause for complaint. At least, not according to the case as it has been
developed.
Frankfurter, Mr. Justice Holmes and the Supreme Court, (1938) pp. 32- 33.
17
18
Frankfurter, Hannah v. Larche, (1960) 363 U.S. 420, at 487.
Cafeteria Workers v. McElroy, (1961) 367 U.S. 1230.

19
20
Bartkus v. Illinois, (1959) 359 U.S. 121.
Pearson v. McGraw, (1939) 308 U.S. 313.

21
22
Cu Unjieng v. Postpone, (1922) 42 Phil. 818, 828.
Citing Swarth v. People, 109 Ill. 621; Dennehy v. City of Chicago, 120 Ill. 627; 12 N.E.,
23
227; United States Distilling Co. v. City of Chicago, 112 Ill. 19: Drew County v. Bennet,
43 Ark. 364; Merced County v. Fleming, Ill Cal. 46; 43 Pac. 392; Williams v. City Council
of West Point, 68 Ga. 816; Cheny v. Shellbyville, 19 Ind. 84; Wiley y. Owens, 39 Ind.
429; Sweet v. City of Wabash, 41 Ind. 7; Jones v. Grady, 25 La. Ann. 586; Goldsmith v.
City of New Orleans, 31 La. Ann. 646; People ex rel., Cramer v. Medberry, 39 N.Y.S.
207; 17 Misc. Rep., 8 ; McGuigan v. Town of Belmont, 89 Wis. 637; 62 N.W., 421; Ex
parte Burnett 30 Ala. 461; Craig v. Burnett 32 Ala., 728, and Muhlenbrinck v. Long
Branch Commissioner, 42 N.J.L. 364; 36 Am. Rep., 518. At pp. 829-830.
24
98 Phil. 148 (1955), citing Great Atl & Pac. Tea Co. v Grosjean, 301 U.S. 412, 81 L.
Ed. 1193; U.S. v. Butler, 297 US 1, 80 L. Ed 477; M'Culloch v. Maryland, 4 Wheat 316, 4
L. Ed 579. The Lutz decision was followed in Republic v. Bacolod Murcia Milling, L-
19824, July 9, 1966.
25
Ormoc Sugar Co. v. Municipal Board of Ormoc City, L-24322, July 21, 1967.
Physical Therapy Organization v. Municipal Board, (1957) 101 Phil. 1142.

26
27
Co Kian & Lee Ban v. City of Manila, (1955) 96 Phil. 649, 654, citing City of New
Orleans v. Stafford, 27 L. Ann. 417.
28
Rubi v. Provincial Board, (1919) 39 Phil. 660, at 706, citing Hall v. Geiger-Jones
(1916), 242 U.S. 539; Hardie-Tynes Manufacturing Co. vs. Cruz (1914), 189 Ala. 66.
29
Calalang v. Williams (1940), 70 Phil. 726, at 733-734.
30
46 Phil. 440 (1924). The Philippines was then under American sovereignty, American
Supreme Court decisions having thus an obligatory effect. No alternative was left to this
Court except to follow the then controlling decision in Adkins v. Children's Hospital
(1924), 261 U.S. 525, which subsequently was overruled in West Coast Hotel v. Parrish
(1937), 300 U.S. 379.
31
Antamok Goldfields Mining Co. v. Court (1940), 70 Phil. 340, at 360, quoting a
concurring opinion of Justice Laurel in Ang Tibay v. Court, G.R. No. 46496.
32
Cf. "In weighing arguments of the parties it is important to distinguish between the due
process clause of the Fourteenth Amendment as an instrument for transmitting the
principles of the First Amendment and those cases in which it is applied for its own sake.
The test of legislation which collides with the Fourteenth Amendment because it also
collides with the principles of the First, is much more definite than the test when only the
Fourteen is involved. Much of the vagueness of the due process clause disappears
when the specific prohibition of the First become its standard. The right of a State to
regulate, for example, a public utility may well include, so far as the due process test is
concerned, power to impose all of the restrictions which a legislature may have a

WEEK 3
'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of
worship may well be infringed on such slender grounds. They are susceptible of
restriction only to prevent an immediate danger to interests which the state may lawfully
protect." (West Virginia State Bd. of Edu v. Barnette, (1942), 319 U.S. 624, at 639).
269 U.S. 385 (1926).

33
34
17 L. ed. 2d 149, Nov. 14, 1966.
Roschen v. Ward (1929), 279 U. S. 337,339.

35
8. TANO VS SOCRATES, GR 119249, AUGUST 21, 1997
G.R. No. 110249 August 21, 1997
ALFREDO TANO, BALDOMERO TANO, DANILO TANO, ROMUALDO TANO,

TEOCENES MIDELLO, ANGEL DE MESA, EULOGIO TREMOCHA, FELIPE
ONGONION, JR., ANDRES LINIJAN, ROBERT LIM, VIRGINIA LIM, FELIMON DE
MESA, GENEROSO ARAGON, TEODORICO ANDRE, ROMULO DEL ROSARIO,
CHOLITO ANDRE, ERICK MONTANO, ANDRES OLIVA, VITTORIO SALVADOR,
LEOPOLDO ARAGON, RAFAEL RIBA, ALEJANDRO LEONILA, JOSE DAMACINTO,
RAMIRO MANAEG, RUBEN MARGATE, ROBERTO REYES, DANILO
PANGARUTAN, NOE GOLPAN, ESTANISLAO ROMERO, NICANOR DOMINGO,
ROLDAN TABANG, ADRIANO TABANG, FREDDIE SACAMAY, MIGUEL TRIMOCHA,
PACENCIO LABABIT, PABLO H. OMPAD, CELESTINO A. ABANO, ALLAN
ALMODAI, BILLY D. BARTOLAY, ALBINO D. LIQUE, MECHOR J. LAYSON,
MELANIE AMANTE, CLARO E. YATOC, MERGELDO B. BALDEO, EDGAR M.
ALMASETA, JOSELITO MANAEG, LIBERATO ANDRADA, JR., ROBERTO BERRY,
RONALD VILLANUEVA, EDUARDO VALMORIA, WILFREDO MENDOZA,
NAPOLEON BABANGGA, ROBERTO TADEPA, RUBEN ASINGUA, SILVERIO
GABO, JERRY ROMERO, DAVID PANGGARUTAN, DANIEL PANGGARUTAN,
ROMEO AGAWIN, FERNANDO EQUIZ, DITO LEQUIZ, RONILO MODERABLE,
BENEDICTO TORRES, ROSITO A. VALDEZ, CRESENCIO A. SAYANG, NICOMEDES
S. ACOSTA, ERENEO A. SEGARINO, JR., WILFREDO A. RAUTO, DIOSDADO A.
ACOSTA, BONIFACIO G. SISMO, TACIO ALUBA, DANIEL B. BATERZAL, ELISEO
YBAÑEZ, DIOSDADO E. HANCHIC, EDDIE ESCALICAS, ELEAZAR B. BATERZAL,
DOMINADOR HALICHIC, ROOSEVELT RISMO-AN, ROBERT C. MERCADER, TIRSO
ARESGADO, DANIEL CHAVEZ, DANILO CHAVEZ, VICTOR VILLAROEL, ERNESTO
C. YBAÑEZ, ARMANDO T. SANTILLAN, RUDY S. SANTILLAN, JODJEN
ILUSTRISIMO, NESTOR SALANGRON, ALBERTO SALANGRON, ROGER L.
ROXAS, FRANCISCO T. ANTICANO, PASTOR SALANGRON, BIENVENIDO
SANTILLAN, GILBUENA LADDY, FIDEL BENJAMIN, JOVELITO BELGANO, HONEY
PARIOL, ANTONIO SALANGRON, NICASIO SALANGRON, & AIRLINE SHIPPERS
ASSOCIATION OF PALAWAN, petitioners,
vs.
HON. GOV. SALVADOR P. SOCRATES, MEMBERS OF SANGGUNIANG
PANLALAWIGAN OF PALAWAN, namely, VICE-GOVERNOR JOEL T. REYES,
JOSE D. ZABALA, ROSALINO R. ACOSTA, JOSELITO A. CADLAON, ANDRES R.
BAACO, NELSON P. PENEYRA, CIPRIANO C. BARROMA, CLARO E. ORDINARIO,
ERNESTO A. LLACUNA, RODOLFO C. FLORDELIZA, GILBERT S. BAACO,
WINSTON G. ARZAGA, NAPOLEON F. ORDONEZ and GIL P. ACOSTA, CITY
MAYOR EDWARD HAGEDORN, MEMBERS OF SANGGUNIANG PANLUNGSOD NG
PUERTO PRINCESA, ALL MEMBERS OF BANTAY DAGAT, MEMBERS OF
PHILIPPINE NATIONAL POLICE OF PALAWAN, PROVINCIAL AND CITY
PROSECUTORS OF PALAWAN and PUERTO PRINCESA CITY, and ALL JUDGES
OF PALAWAN, REGIONAL, MUNICIPAL AND METROPOLITAN, respondents.
DAVIDE, JR., J.: EN BANC

WEEK 3
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

WEEK 3
than twelve (12) months, cancellation of their permit to do business in the City of Puerto
Princesa or all of the herein stated penalties, upon the discretion of the court.
Sec. 6. If the owner and/or operator of the establishment found violating the provisions of
this ordinance is a corporation or a partnership, the penalty prescribed in Section 5
hereof shall be imposed upon its president and/or General Manager or Managing
Partner and/or Manager, as the case maybe [sic].
Sec. 7. Any existing ordinance or any provision of any ordinance inconsistent to [sic] this
ordinance is deemed repealed.
Sec. 8. This Ordinance shall take effect on January 1, 1993.
SO ORDAINED.
xxx xxx xxx
2. To implement said city ordinance, then Acting City Mayor Amado L. Lucero issued
Office Order No. 23, Series of 1993 dated January 22, 1993 which reads as follows:
In the interest of public service and for purposes of City Ordinance No. PD 426-14-74,
otherwise known as "AN ORDINANCE REQUIRING ANY PERSON ENGAGED OR
INTENDING TO ENGAGE IN ANY BUSINESS, TRADE, OCCUPATION, CALLING OR
PROFESSION OR HAVING IN HIS POSSESSION ANY OF THE ARTICLES FOR
WHICH A PERMIT IS REQUIRED TO BE HAD, TO OBTAIN FIRST A MAYOR'S
PERMIT" and "City Ordinance No. 15-92, AN ORDINANCE BANNING THE SHIPMENT
OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM
JANUARY 1, 1993 TO JANUARY 1, 1998, you are hereby authorized and directed to
check or conduct necessary inspections on cargoes containing live fish and lobster
being shipped out from the Puerto Princesa Airport, Puerto Princesa Wharf or at any port
within the jurisdiction of the City to any point of destinations [sic] either via aircraft or
seacraft.
The purpose of the inspection is to ascertain whether the shipper possessed the
required Mayor's Permit issued by this Office and the shipment is covered by invoice or
clearance issued by the local office of the Bureau of Fisheries and Aquatic Resources
and as to compliance with all other existing rules and regulations on the matter.
Any cargo containing live fish and lobster without the required documents as stated
herein must be held for proper disposition.
In the pursuit of this Order, you are hereby authorized to coordinate with the PAL
Manager, the PPA Manager, the local PNP Station and other offices concerned for the
needed support and cooperation. Further, that the usual courtesy and diplomacy must
be observed at all times in the conduct of the inspection.
Please be guided accordingly.
xxx xxx xxx
3. On February 19, 1993, the Sangguniang Panlalawigan, Provincial Government of

Palawan enacted Resolution No. 33 entitled: "A RESOLUTION PROHIBITING THE
CATCHING, GATHERING, POSSESSING, BUYING, SELLING AND SHIPMENT OF
LIVE MARINE CORAL DWELLING AQUATIC ORGANISMS, TO WIT:
FAMILY: SCARIDAE (MAMENG), EPINE PHELUS
FASCIATUS (SUNO). CROMILEPTES ALTIVELIS (PANTHER OR SENORITA),
LOBSTER BELOW 200 GRAMS AND SPAWNING, TRIDACNA
GIGAS (TAKLOBO), PINCTADA MARGARITEFERA (MOTHER PEARL, OYSTERS,
GIANT CLAMS AND OTHER SPECIES), PENAEUS MONODON (TIGER PRAWN-
BREEDER SIZE OR MOTHER), EPINEPHELUS SUILLUS (LOBA OR GREEN
GROUPER) AND FAMILY: BALISTIDAE (TROPICAL AQUARIUM FISHES) FOR A

WEEK 3
PERIOD FIVE (5) YEARS IN AND COMING FROM PALAWAN WATERS", the full text
of which reads as follows:
WHEREAS, scientific and factual researches [sic] and studies disclose that only five (5)
percent of the corals of our province remain to be in excellent condition as [a] habitat of
marine coral dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the destruction and devastation of the corals of
our province were principally due to illegal fishing activities like dynamite fishing, sodium
cyanide fishing, use of other obnoxious substances and other related activities;
WHEREAS, there is an imperative and urgent need to protect and preserve the
existence of the remaining excellent corals and allow the devastated ones to reinvigorate
and regenerate themselves into vitality within the span of five (5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of the [sic] R.A. 7160 otherwise known as the
Local Government Code of 1991 empowers the Sangguniang Panlalawigan to protect
the environment and impose appropriate penalties [upon] acts which endanger the
environment such as dynamite fishing and other forms of destructive fishing, among
others.
NOW, THEREFORE, on motion by Kagawad Nelson P. Peneyra and upon unanimous

decision of all the members present;
Be it resolved as it is hereby resolved, to approve Resolution No. 33, Series of 1993 of

the Sangguniang Panlalawigan and to enact Ordinance No. 2 for the purpose, to wit:
ORDINANCE NO. 2
Series of 1993
BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN IN SESSION

ASSEMBLED:
Sec. 1. TITLE — This Ordinance shall be known as an "Ordinance Prohibiting the

catching, gathering, possessing, buying, selling and shipment of live marine coral
dwelling aquatic organisms, to wit: 1. Family: Scaridae (Mameng), 2. Epinephelus
Fasciatus (Suno) 3. Cromileptes altivelis (Panther or Senorita), lobster below 200 grams
and spawning), 4. Tridacna Gigas (Taklobo), 5. Pinctada Margaretefera (Mother Pearl,
Oysters, Giant Clams and other species), 6. Penaeus Monodon (Tiger Prawn-breeder
size or mother), 7. Epinephelus Suillus (Loba or Green Grouper) and 8. Family:
Balistidae (T[r]opical Aquarium Fishes) for a period of five (5) years in and coming from
Palawan Waters.
Sec. II. PRELIMINARY CONSIDERATIONS
1. Sec. 2-A (Rep. Act 7160). It is hereby declared, the policy of the state that the
territorial and political subdivisions of the State shall enjoy genuine and meaningful local
autonomy to enable them to attain their fullest development as self-reliant communities
and make them more effective partners in the attainment of national goals. Toward this
end, the State shall provide for [a] more responsive and accountable local government
structure instituted through a system of decentralization whereby local government units
shall be given more powers, authority, responsibilities and resources.
2. Sec. 5-A (R.A. 7160). Any provision on a power of [a] local Government Unit shall be
liberally interpreted in its favor, and in case of doubt, any question thereon shall be
resolved in favor of devolution of powers and of the lower government units. "Any fair
and reasonable doubts as to the existence of the power shall be interpreted in favor of
the Local Government Unit concerned."

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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:

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First, the Ordinances deprived them of due process of law, their livelihood, and unduly
restricted them from the practice of their trade, in violation of Section 2, Article XII and
Sections 2 and 7 of Article XIII of the 1987 Constitution.
Second, Office Order No. 23 contained no regulation nor condition under which the
Mayor's permit could be granted or denied; in other words, the Mayor had the absolute
authority to determine whether or not to issue the permit.
Third, as Ordinance No. 2 of the Province of Palawan "altogether prohibited the

catching, gathering, possession, buying, selling and shipping of live marine coral
dwelling organisms, without any distinction whether it was caught or gathered through
lawful fishing method," the Ordinance took away the right of petitioners-fishermen to
earn their livelihood in lawful ways; and insofar as petitioners-members of Airline
Shippers Association are concerned, they were unduly prevented from pursuing their
vocation and entering "into contracts which are proper, necessary, and essential to carry
out their business endeavors to a successful conclusion."
Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan is null and void, the
criminal cases based thereon against petitioners Tano and the others have to be
dismissed.
In the Resolution of 15 June 1993 we required respondents to comment on the petition,

and furnished the Office of the Solicitor General with a copy thereof.
In their comment filed on 13 August 1993, public respondents Governor Socrates and
Members of the Sangguniang Panlalawigan of Palawan defended the validity of
Ordinance No. 2, Series of 1993, as a valid exercise of the Provincial Government's
power under the general welfare clause (Section 16 of the Local Government Code of
1991 [hereafter, LGC]), and its specific power to protect the environment and impose
appropriate penalties for acts which endanger the environment, such as dynamite fishing
and other forms of destructive fishing under Section 447 (a) (1) (vi), Section 458 (a) (1)
(vi), and Section 468 (a) (1) (vi), of the LGC. They claimed that in the exercise of such
powers, the Province of Palawan had "the right and responsibility . . . to insure that the
remaining coral reefs, where fish dwells [sic], within its territory remain healthy for the
future generation." The Ordinance, they further asserted, covered only live marine coral
dwelling aquatic organisms which were enumerated in the ordinance and excluded other
kinds of live marine aquatic organisms not dwelling in coral reefs; besides the prohibition
was for only five (5) years to protect and preserve the pristine coral and allow those
damaged to regenerate.
Aforementioned respondents likewise maintained that there was no violation of the due
process and equal protection clauses of the Constitution. As to the former, public
hearings were conducted before the enactment of the Ordinance which, undoubtedly,
had a lawful purpose and employed reasonable means; while as to the latter, a
substantial distinction existed "between a fisherman who catches live fish with the
intention of selling it live, and a fisherman who catches live fish with no intention at all of
selling it live," i.e., "the former uses sodium cyanide while the latter does not." Further,
the Ordinance applied equally to all those belonging to one class.
On 25 October 1993 petitioners filed an Urgent Plea for the Immediate Issuance of a
Temporary Restraining Order, claiming that despite the pendency of this case, Branch
50 of the Regional Trial Court of Palawan was bent on proceeding with Criminal Case
No. 11223 against petitioners Danilo Tano, Alfredo Tano, Eulogio Tremocha, Romualdo
Tano, Baldomero Tano, Andres Linijan and Angel de Mesa for violation of Ordinance No.
2 of the Sangguniang Panlalawigan of Palawan. Acting on said plea, we issued on 11
November 1993 a temporary restraining order directing Judge Angel Miclat of said court
to cease and desist from proceeding with the arraignment and pre-trial of Criminal Case
No. 11223.

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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.
There are actually two sets of petitioners in this case. The first is composed of Alfredo
Tano, Baldomero Tano, Danilo Tano, Romualdo Tano, Teocenes Midello, Angel de
Mesa, Eulogio Tremocha, Felipe Ongonion, Jr., Andres Linijan, and Felimon de Mesa,
who were criminally charged with violating Sangguniang Panlalawigan Resolution No. 33
and Ordinance No. 2, Series of 1993, of the Province of Palawan, in Criminal Case No.
93-05-C of the 1st Municipal Circuit Trial Court (MCTC) of Palawan; 3 and Robert Lim
and Virginia Lim who were charged with violating City Ordinance No. 15-92 of Puerto
Princesa City and Ordinance No. 2, Series of 1993, of the Province of Palawan before
the Office of the City Prosecutor of Puerto Princesa. 4 All of them, with the exception of
Teocenes Midello, Felipe Ongonion, Jr., Felimon de Mesa, Robert Lim and Virginia Lim,
are likewise the accused in Criminal Case No. 11223 for the violation of Ordinance No. 2
of the Sangguniang Panlalawigan of Palawan, pending before Branch 50 of the Regional
Trial Court of Palawan. 5
The second set of petitioners is composed of the rest of the petitioners numbering
seventy-seven (77), all of whom, except the Airline Shippers Association of Palawan —
an alleged private association of several marine merchants — are natural persons who
claim to be fishermen.
The primary interest of the first set of petitioners is, of course, to prevent the prosecution,
trial and determination of the criminal cases until the constitutionality or legality of the
Ordinances they allegedly violated shall have been resolved. The second set of
petitioners merely claim that being fishermen or marine merchants, they would be
adversely affected by the ordinance's.
As to the first set of petitioners, this special civil for certiorari must fail on the ground of
prematurity amounting to a lack of cause of action. There is no showing that said
petitioners, as the accused in the criminal cases, have filed motions to quash the
informations therein and that the same were denied. The ground available for such
motions is that the facts charged therein do not constitute an offense because the
ordinances in question are unconstitutional. 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

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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

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Notwithstanding the foregoing procedural obstacles against the first set of petitioners, we
opt to resolve this case on its merits considering that the lifetime of the challenged
Ordinances is about to end. Ordinance No. 15-92 of the City of Puerto Princesa is
effective only up to 1 January 1998, while Ordinance No. 2 of the Province of Palawan,
enacted on 19 February 1993, is effective for only five (5) years. Besides, these
Ordinances were undoubtedly enacted in the exercise of powers under the new LGC
relative to the protection and preservation of the environment and are thus novel and of
paramount importance. No further delay then may be allowed in the resolution of the
issues raised.
It is of course settled that laws (including ordinances enacted by local government units)
enjoy the presumption of constitutionality. 15 To overthrow this presumption, there must
be a clear and unequivocal breach of the Constitution, not merely a doubtful or
argumentative contradiction. In short, the conflict with the Constitution must be shown
beyond reasonable doubt.16 Where doubt exists, even if well-founded, there can be no
finding of unconstitutionality. To doubt is to sustain.17
After a scrutiny of the challenged Ordinances and the provisions of the Constitution
petitioners claim to have been violated, we find petitioners' contentions baseless and so
hold that the former do not suffer from any infirmity, both under the Constitution and
applicable laws.
Petitioners specifically point to Section 2, Article XII and Sections 2 and 7, Article XIII of
the Constitution as having been transgressed by the Ordinances.
The pertinent portion of Section 2 of Article XII reads:
Sec. 2. . . .
The State shall protect the nation's marine wealth in its archipelagic waters, territorial
sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to
Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino
citizens, as well as cooperative fish farming, with priority to subsistence fishermen and
fishworkers in rivers, lakes, bays, and lagoons.
Sections 2 and 7 of Article XIII provide:
Sec. 2. The promotion of social justice shall include the commitment to create economic
opportunities based on freedom of initiative and self-reliance.
xxx xxx xxx
Sec. 7. The State shall protect the rights of subsistence fishermen, especially of local
communities, to the preferential use of the communal marine and fishing resources, both
inland and offshore. It shall provide support to such fishermen through appropriate
technology and research, adequate financial, production, and marketing assistance, and
other services. The State shall also protect, develop, and conserve such resources. The
protection shall extend to offshore fishing grounds of subsistence fishermen against
foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization
of marine and fishing resources.
There is absolutely no showing that any of the petitioners qualifies as a subsistence or

marginal fisherman. In their petition, petitioner Airline Shippers Association of Palawan is
self-described as "a private association composed of Marine Merchants;" petitioners
Robert Lim and Virginia Lim, as "merchants;" while the rest of the petitioners claim to be
"fishermen," without any qualification, however, as to their status.
Since the Constitution does not specifically provide a definition of the terms
"subsistence" or "marginal" fishermen,18 they should be construed in their general and

WEEK 3
ordinary sense. A marginal fisherman is an individual engaged in fishing whose margin
of return or reward in his harvest of fish as measured by existing price levels is barely
sufficient to yield a profit or cover the cost of gathering the fish, 19 while a subsistence
fisherman is one whose catch yields but the irreducible minimum for his
livelihood.20 Section 131(p) of the LGC (R.A. No. 7160) defines a marginal farmer or
fisherman as "an individual engaged in subsistence farming or fishing which shall be
limited to the sale, barter or exchange of agricultural or marine products produced by
himself and his immediate family." It bears repeating that nothing in the record supports
a finding that any petitioner falls within these definitions.
Besides, Section 2 of Article XII aims primarily not to bestow any right to subsistence
fishermen, but to lay stress on the duty of the State to protect the nation's marine wealth.
What the provision merely recognizes is that the State may allow, by law, cooperative
fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays
and lagoons. Our survey of the statute books reveals that the only provision of law which
speaks of a preferential right of marginal fishermen is Section 149 of the LGC, which
pertinently provides:
Sec. 149. Fishery Rentals, Fees and Charges. — . . .
(b) The sangguniang bayan may:
(1) Grant fishery privileges to erect fish corrals, oyster, mussels or other aquatic beds or
bangus fry areas, within a definite zone of the municipal waters, as determined by
it: Provided, however, That duly registered organizations and cooperatives of marginal
fishermen shall have the preferential right to such fishery privileges . . . .
In a Joint Administrative Order No. 3 dated 25 April 1996, the Secretary of the
Department of Agriculture and the Secretary of the Department of Interior and Local
Government prescribed guidelines concerning the preferential treatment of small
fisherfolk relative to the fishery right mentioned in Section 149. This case, however, does
not involve such fishery right.
Anent Section 7 of Article XIII, it speaks not only of the use of communal marine and
fishing resources, but of their protection, development and conservation. As hereafter
shown, the ordinances in question are meant precisely to protect and conserve our
marine resources to the end that their enjoyment may be guaranteed not only for the
present generation, but also for the generations to come.
The so-called "preferential right" of subsistence or marginal fishermen to the use of

marine resources is not at all absolute. In accordance with the Regalian Doctrine, marine
resources belong to the State, and, pursuant to the first paragraph of Section 2, Article
XII of the Constitution, their "exploration, development and utilization . . . shall be under
the full control and supervision of the State." Moreover, their mandated protection,
development and conservation as necessarily recognized by the framers of the
Constitution, imply certain restrictions on whatever right of enjoyment there may be in
favor of anyone. Thus, as to the curtailment of the preferential treatment of marginal
fishermen, the following exchange between Commissioner Francisco Rodrigo and
Commissioner Jose F.S. Bengzon, Jr., took place at the plenary session of the
Constitutional Commission:
MR. RODRIGO:
Let us discuss the implementation of this because I would not raise the hopes of our
people, and afterwards fail in the implementation. How will this be implemented? Will
there be a licensing or giving of permits so that government officials will know that one is
really a marginal fisherman? Or if policeman say that a person is not a marginal
fisherman, he can show his permit, to prove that indeed he is one.
MR. BENGZON:

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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

WEEK 3
government units in accelerating economic development and upgrading the quality of life
for the people of the community."
The LGC vests municipalities with the power to grant fishery privileges in municipal
waters and impose rentals, fees or charges therefor; to penalize, by appropriate
ordinances, the use of explosives, noxious or poisonous substances, electricity, muro-
ami, and other deleterious methods of fishing; and to prosecute any violation of the
provisions of applicable fishery laws.24 Further, the sangguniang bayan, the sangguniang
panlungsod and the sangguniang panlalawigan are directed to enact ordinances for the
general welfare of the municipality and its inhabitants, which shall include, inter alia,
ordinances that "[p]rotect the environment and impose appropriate penalties for acts
which endanger the environment such as dynamite fishing and other forms of destructive
fishing . . . and such other activities which result in pollution, acceleration of
eutrophication of rivers and lakes, or of ecological
imbalance."25
Finally, the centerpiece of LGC is the system of decentralization 26 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;

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4. Issuance of permits to gather/culture shelled mollusks within municipal waters;
5. Issuance of licenses to establish seaweed farms within municipal waters;
6. Issuance of licenses to establish culture pearls within municipal waters;
7. Issuance of auxiliary invoice to transport fish and fishery products; and
8. Establishment of "closed season" in municipal waters.
These functions are covered in the Memorandum of Agreement of 5 April 1994 between
the Department of Agriculture and the Department of Interior and Local Government.
In light then of the principles of decentralization and devolution enshrined in the LGC
and the powers granted therein to local government units under Section 16 (the General
Welfare Clause), and under Sections 149, 447(a) (1) (vi), 458 (a) (1) (vi) and 468 (a) (1)
(vi), which unquestionably involve the exercise of police power, the validity of the
questioned Ordinances cannot be doubted.
Parenthetically, we wish to add that these Ordinances find full support under R.A. No.
7611, otherwise known as the Strategic Environmental Plan (SEP) for Palawan Act,
approved on 19 June 1992. This statute adopts a "comprehensive framework for the
sustainable development of Palawan compatible with protecting and enhancing the
natural resources and endangered environment of the province," which "shall serve to
guide the local government of Palawan and the government agencies concerned in the
formulation and implementation of plans, programs and projects affecting said
province."32
At this time then, it would be appropriate to determine the relation between the assailed
Ordinances and the aforesaid powers of the Sangguniang Panlungsod of the City of
Puerto Princesa and the Sangguniang Panlalawigan of the Province of Palawan to
protect the environment. To begin, we ascertain the purpose of the Ordinances as set
forth in the statement of purposes or declaration of policies quoted earlier.
It is clear to the Court that both Ordinances have two principal objectives or purposes:
(1) to establish a "closed season" for the species of fish or aquatic animals covered
therein for a period of five years; and (2) to protect the coral in the marine waters of the
City of Puerto Princesa and the Province of Palawan from further destruction due to
illegal fishing activities.
The accomplishment of the first objective is well within the devolved power to enforce
fishery laws in municipal waters, such as P.D. No. 1015, which allows the establishment
of "closed seasons." The devolution of such power has been expressly confirmed in the
Memorandum of Agreement of 5 April 1994 between the Department of Agriculture and
the Department of Interior and Local Government.
The realization of the second objective clearly falls within both the general welfare
clause of the LGC and the express mandate thereunder to cities and provinces to
protect the environment and impose appropriate penalties for acts which endanger the
environment.33
The destruction of coral reefs results in serious, if not irreparable, ecological imbalance,
for coral reefs are among nature's life-support systems. 34 They collect, retain and recycle
nutrients for adjacent nearshore areas such as mangroves, seagrass beds, and reef
flats; provide food for marine plants and animals; and serve as a protective shelter for
aquatic organisms.35 It is said that "[e]cologically, the reefs are to the oceans what
forests are to continents: they are shelter and breeding grounds for fish and plant
species that will disappear without them."36
The prohibition against catching live fish stems, in part, from the modern phenomenon of
live-fish trade which entails the catching of so-called exotic species of tropical fish, not

WEEK 3
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

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Therefore, it is incorrect to say that the challenged Ordinance of the City of Puerto
Princesa is invalid or unenforceable because it was not approved by the Secretary of the
DENR. If at all, the approval that should be sought would be that of the Secretary of the
Department of Agriculture. However, the requirement of approval by the Secretary of the
Department of Agriculture (not DENR) of municipal ordinances affecting fishing and
fisheries in municipal waters has been dispensed with in view of the following reasons:
(1) Section 534 (Repealing Clause) of the LGC expressly repeals or amends Sections
16 and 29 of P.D. No. 70445 insofar as they are inconsistent with the provisions of the
LGC.
(2) As discussed earlier, under the general welfare clause of the LGC, local government
units have the power, inter alia, to enact ordinances to enhance the right of the people to
a balanced ecology. It likewise specifically vests municipalities with the power to grant
fishery privileges in municipal waters, and impose rentals, fees or charges therefor; to
penalize, by appropriate ordinances, the use of explosives, noxious or poisonous
substances, electricity, muro-ami, and other deleterious methods of fishing; and to
prosecute any violation of the provisions of applicable fishery laws.46 Finally, it imposes
upon the sangguniang bayan, the sangguniang panlungsod, and the sangguniang
panlalawigan the duty to enact ordinances to "[p]rotect the environment and impose
appropriate penalties for acts which endanger the environment such as dynamite fishing
and other forms of destructive fishing . . . and such other activities which result in
pollution, acceleration of eutrophication of rivers and lakes or of ecological imbalance."47
In closing, we commend the Sangguniang Panlungsod of the City of Puerto Princesa

and Sangguniang Panlalawigan of the Province of Palawan for exercising the requisite
political will to enact urgently needed legislation to protect and enhance the marine
environment, thereby sharing in the herculean task of arresting the tide of ecological
destruction. We hope that other local government units shall now be roused from their
lethargy and adopt a more vigilant stand in the battle against the decimation of our
legacy to future generations. At this time, the repercussions of any further delay in their
response may prove disastrous, if not, irreversible.
WHEREFORE, the instant petition is DISMISSED for lack of merit and the
temporary restraining order issued on 11 November 1993 is LIFTED.
No pronouncement as to costs.
SO ORDERED.
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

WEEK 3
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.
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

WEEK 3
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 . . . . .
sea and exclusive economic zone, and reserve its use and enjoyment exclusively to
Filipino citizens.
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
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.
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.

WEEK 3
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
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
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

WEEK 3
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
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:
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.

WEEK 3
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
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

WEEK 3
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

WEEK 3
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 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

WEEK 3
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 establish a closed
season for fisheries is vested upon the Secretary of Agriculture by virtue of P.D. Nos.
704 and 1015 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.

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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
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

WEEK 3
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.
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 . . . . .
sea and exclusive economic zone, and reserve its use and enjoyment exclusively to
Filipino citizens.

WEEK 3
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
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.
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.

WEEK 3
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
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
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
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

WEEK 3
the absolute discretion of the mayor when to grant and when to deny a permit. The
questioned paragraph of the order states:
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.
Footnotes

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1 None, however, exists in Puerto Princesa City.
2 Petitioners filed their Memorandum on 24 October 1994, respondents City Mayor

Hagedorn and Members of the Sangguniang Panlungsod of the City of Puerto Princess
filed their Memorandum on 25 January 1995, while respondents Governor Socrates and
Members of the Sangguniang Panlalawigan of Palawan filed their Memorandum on 31
January 1995.
5 Annex "A" to "A-5" of Urgent Plea for the Immediate Issuance of Temporary
Restraining Order, Rollo, 86 et seq.
6 VICENTE J. FRANCISCO, THE REVISED RULES OF COURT IN THE PHILIPPINES,

CRIMINAL PROCEDURE, 582 (2nd ed. 1969), citing U.S. v. Pompeya, 31 Phil. 245
[1915].
7 Acharon v. Purisima, 13 SCRA 309, 311 [1965]; Cruz v. Court of Appeals, 194 SCRA
145, 152-153 [1991]; Yap v. Intermediate Appellate Court, 220 SCRA 245, 253 [1993];
People v. Bans, 239 SCRA 48, 54-55 [1994].
8 Liberty Insurance Corporation v. Court of Appeals, 222 SCRA 37, 47 [1993]; Lasco v.
United Nations Revolving Fund for Natural Resources Exploration, 241 SCRA 681, 684
[1995].
9 See Mendoza v. Court of Appeals, 201 SCRA 343 [1991]; People v. Bans, supra note

7.
11 Macasiano v. National Housing Authority, 224 SCRA 236, 243

[1993], citing Remotigue v. Osmeña, 21 SCRA 837 [1967]; Rural Bank of Olongapo v.
Commissioner of Land Registration, 102 SCRA 794 [1981]; and Allied Broadcasting
Center v. Republic of the Philippines, 190 SCRA 782 [1990].
12 Philnabank Employees Association v. Hon. Estanislao, 227 SCRA 804, 811 [1993].
13 172 SCRA 415, 423-424 [1989], reiterated in Manalo v. Gloria, 236 SCRA 130, 138-
139 [1994].
14 217 SCRA 633, 652 [1993].
15 La Union Electric Cooperative Inc. v. Yaranon, 179 SCRA 828, 836 [1989]; Francisco
v. Permskul, 173 SCRA 324, 333 [1989].
16 See Peralta v. Commission on Elections, 82 SCRA 30, 55 [1978].
17 Paredes v. Executive Secretary, 128 SCRA 6, 11 [1984], citing Yu Gong Eng v.

Trinidad, 47 Phil. 385 [1925]. See also Aris (Phil.) Inc. v. NLRC, 200 SCRA 246, 255-256
[1991].
18 Although the intent of the framers was to have the terms refer to those "who lived a
hand-to-mouth existence.," JOAQUIN G. BERNAS, THE INTENT OF THE 1986
CONSTITUTION WRITERS 964 (1995).
21 III Record of the Constitutional Commission, 50.
22 Section 16, Article II.
23 224 SCRA 792, 804-805 [1993].
24 Section 149.
25 Section 447[a][1][vi]; Section 458[a][1][vi]; Section 468[a][1][vi].

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26 Section 2(a).
27 Section 3, Article X.
28 Section 5(a).
29 Section 17(e).
30 Section 17[b][2][i].
31 Section 13[r], LGC.
32 Sec. 4. R.A. No. 7611.
33 Section 458[a][1][vi]; Section 468[a][1][vi].
34 Section 3[3], R.A. No. 7611.
35 Jay Batongbacal, Note, The Coastal Environment and the Small-Scale Fisherfolk:
Advocacy for Community-Based Coastal Zone Management, 66 PHIL. L. J. 149, 162
(December 1991).
37 Anthony Spaeth, Reef Killers, TIME Magazine, 3 June 1996, 49, 50.
38 Batongbacal, 168.
42 Said section reads:
Sec. 4. Jurisdiction of the Bureau. — 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.
The Bureau shall prepare and implement, upon approval of the Fishery Industry
Development Council, a Fishery Industry Development Program.
43 Executive Order No. 292.
44 Section 20, Chapter 4, Title IV, Book IV.
45 These sections read as follows:
Sec. 16. License, lease, and permit. — No person shall exploit, occupy, produce,
culture, capture or gather fish, or fry or fingerling of any species of fish or fishery/aquatic
products, or engage in any fishery activity in Philippine or municipal waters without a
license, lease or permit: Provided, That when due to destruction wrought upon
fishponds, fishpens or fish nurseries, by typhoons, floods and other fortuitous events, or
due to speculation, monopolistic and other pernicious practices which tend to create an
artificial shortage of fry and/or fingerling, the supply of fish and fishery/aquatic products
can reasonably be expected to fall below the usual demand therefor and the price
thereof, to increase, the Secretary, upon recommendation of the Director, is hereby
authorized to fix a fair and reasonable price for fry and fingerling of any species of fish,
and in so doing and when necessary, fix different price levels for various areas or
regions taking into account such variable factors as availability, accessibility to

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transportation facilities, packing and crating, and to regulate the movement, shipment
and transporting of such fry and fingerling: Provided, Further, That the price so fixed
shall guarantee the gatherers of fry a just and equitable return for their labor: Provided,
Finally, That any administrative order issued by the Secretary to implement the foregoing
shall take effect immediately, the provisions of Section 7 hereof to the contrary
notwithstanding.
C. MUNICIPAL FISHERIES
Sec. 29. Grant of fishery privileges. — A municipal or city council, conformably with an

ordinance duly approved by the Secretary pursuant to Section 4 hereof may:
a. grant to the highest qualified bidder the exclusive privilege of constructing and
operating fish corrals, oyster culture beds, or of gathering "bangus" fry, or the fry of other
species, in municipal waters for a period not exceeding five (5) years: Provided, That in
the zoning and classification of municipal waters for purposes of awarding, through
public bidding, areas for the construction or operation of fish corrals, oyster culture beds,
or the gathering of fry, the municipal or city council shall set aside not more than one-fifth
(1/5) of the area, earmarked for the gathering of fry, as may be designated by the
Bureau, as government "bangus" fry reservation: Provided, Further, That no fish corral
shall be constructed within two hundred (200) meters of another fish corral in marine
fisheries, or one hundred (100) meters in freshwater fisheries, unless they belong to the
same licensee, but in no case shall the distance be less than sixty (60) meters, except in
waters less than two (2) meters deep at low tide, or unless previously approved by the
Secretary;
b. authorize the issuance to qualified persons of license for the operation of fishing boats
three (3) gross tons or less, or for the privilege of fishing in municipal waters with nets,
traps or other fishing gear: Provided, That it shall be beyond the power of the municipal
or city council to impose a license for the privilege of gathering marine mollusca or the
shells thereof, for pearling boats and pearl divers, or for prospecting, collecting, or
gathering sponges or other aquatic products, or for the culture of fishery/aquatic
products: Provided, Further, That a licensee under this paragraph shall not operate
within two hundred (200) meters of any fish corral licensed by the municipality except
when the licensee is the owner or operator of the fish corral but in no case within sixty
(60) meters of said corral. The municipality or city council shall furnish the Bureau, for
statistical purposes, on forms which shall be furnished by the Bureau, such information
and data on fishery matters as are reflected in such forms.
46 Section 149.
47 Section 447[a][1][vi]; Section 458[a][1][vi]; Section 468[a][1][vi].
1 §§I and III.
2 §IV.
3 Quoted in Respondents Comment on the Petition. p. 7.
4 Toufexis. All God's Creatures Priced to Sell. Time, July 19, 1993, p. 32.
9 Office Order No. 33, s. 1993.
10 R.A. No. 7160, §458(a)(1 )(vi) and §468(a)(1)(vi).
11 Ermita-Malate Hotel and Motel Operators Ass'n v. City Mayor, 20 SCRA 849, 857
(1967), citing O'Gozman & Young v. Hartford Fire Ins. Co., 282 U.S. 255, 257, 75 L.Ed.
324, 328 (1931).

WEEK 3
12 Nebbia v. New York, 291 U.S. 502 (1934). See also Lansang v. Garcia, 42 SCRA
448, 481 (1971): People v. Ferrer, 48 SCRA 382 (1972).
13 39 Phil. 102, 111 (1918).
14 Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929), quoted by this Court
in Ermita-Malate Hotel and Motel Operators Ass'n v. City Mayor, 20 SCRA at 867.
15 People v. Echegaray, G.R. No. 117472, Feb. 7, 1997 (death penalty statute valid).
BELLOSILLO, J.: dissenting:
1 Alliance of Government Workers v. Minister of Labor, G.R. No. 60403, 3 August 1983,
124 SCRA 1.
2 San Miguel Brewery, Inc. v. Magno, No. L-2187, 29 September 1967, 21 SCRA 292.
3 G.R. No. 111097, 20 July 1994, 234 SCRA 255.
4 Almeda v. Florentino, No. L-23800, 21 December 1965, 15 SCRA 514.
5 Martin, Ruperto G., Public Corporations, Rev. Ed., p. 46, citing Elliot, Municipal

Corporations, p. 33.
6 Pimentel, Aquilino, The Local Government Code of 1991, Key to National

Development, 1993, p. 19.
7 See Note 5, p. 69, citing U.S. v. Chan Tienco, 25 Phil. 89 (1913).
8 See Note 6, p. 73.
9 Cruz v. Paras, Nos. L-42571-72, 25 July 1983, 123 SCRA 569.
9. MODAY VS COURT OF APPEALS, GR 107916, FEBRUARY 20, 1997
G.R. No. 107916 February 20, 1997
PERCIVAL MODAY, ZOTICO MODAY (deceased) and LEONORA

MODAY, petitioners,
vs.
COURT OF APPEALS, JUDGE EVANGELINE S. YUIPCO OF BRANCH 6,
REGIONAL TRIAL COURT, AGUSAN DEL SUR AND MUNICIPALITY OF
BUNAWAN, respondents.

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ROMERO, J.: SECOND DIVISION
The main issue presented in this case is whether a municipality may expropriate private
property by virtue of a municipal resolution which was disapproved by the Sangguniang
Panlalawigan. Petitioner seeks the reversal of the Court of Appeals decision and
resolution, promulgated on July 15, 1992 and October 22, 1992 respectively, 1 and a
declaration that Municipal Resolution No. 43-89 of the Bunawan Sangguniang Bayan is
null and void.
On July 23, 1989, the Sangguniang Bayan of the Municipality of Bunawan in Agusan del
Sur passed Resolution No. 43-89, "Authorizing the Municipal Mayor to Initiate the
Petition for Expropriation of a One (1) Hectare Portion of Lot No. 6138-Pls-4 Along the
National Highway Owned by Percival Moday for the Site of Bunawan Farmers Center
and Other Government Sports Facilities." 2
In due time, Resolution No. 43-89 was approved by then Municipal Mayor Anuncio C.
Bustillo and transmitted to the Sangguniang Panlalawigan for its approval. On
September 11, 1989, the Sangguniang Panlalawigan disapproved said Resolution and
returned it with the comment that "expropriation is unnecessary considering that there
are still available lots in Bunawan for the establishment of the government center." 3
The Municipality of Bunawan, herein public respondent, subsequently filed a petition for
Eminent Domain against petitioner Percival Moday before the Regional Trial Court at
Prosperidad, Agusan del Sur. 4 The complaint was later amended to include the
registered owners, Percival Moday's parents, Zotico and Leonora Moday, as party
defendants.
On March 6, 1991, public respondent municipality filed a Motion to Take or Enter Upon
the Possession of Subject Matter of This Case stating that it had already deposited with
the municipal treasurer the necessary amount in accordance with Section 2, Rule 67 of
the Revised Rules of Court and that it would be in the government's best interest for
public respondent to be allowed to take possession of the property.
Despite petitioners' opposition and after a hearing on the merits, the Regional Trial Court
granted respondent municipality's motion to take possession of the land. The lower court
held that the Sangguniang Panlalawigan's failure to declare the resolution invalid leaves
it effective. It added that the duty of the Sangguniang Panlalawigan is merely to review
the ordinances and resolutions passed by the Sangguniang Bayan under Section 208
(1) of B.P. Blg. 337, old Local Government Code and that the exercise of eminent
domain is not one of the two acts enumerated in Section 19 thereof requiring the
approval of the Sangguniang Panlalawigan. 5 The dispositive portion of the lower court's
Order dated July 2, 1991 reads:
WHEREFORE, it appearing that the amount of P632.39 had been deposited as per
Official Receipt No. 5379647 on December 12, 1989 which this Court now determines as
the provisional value of the land, the Motion to Take or Enter Upon the Possession of the
Property filed by petitioner through counsel is hereby GRANTED. The Sheriff of this
Court is ordered to forthwith place the plaintiff in possession of the property involved.
Let the hearing be set on August 9, 1991 at 8:30 o'clock in the morning for the purpose
of ascertaining the just compensation or fair market value of the property sought to be
taken, with notice to all the parties concerned.
SO ORDERED. 6
Petitioners' motion for reconsideration was denied by the trial court on October 31, 1991.
Petitioners elevated the case in a petition for certiorari alleging grave abuse of discretion

on the part of the trial court, but the same was dismissed by respondent appellate court
on July 15, 1992. 7 The Court of Appeals held that the public purpose for the
expropriation is clear from Resolution No. 43-89 and that since the Sangguniang

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Panlalawigan of Agusan del Sur did not declare Resolution No. 43-89 invalid,
expropriation of petitioners' property could proceed.
Respondent appellate court also denied petitioners' motion for reconsideration on

October 22, 1992. 8
Meanwhile, the Municipality of Bunawan had erected three buildings on the subject
property: the Association of Barangay Councils (ABC) Hall, the Municipal Motorpool,
both wooden structures, and the Bunawan Municipal Gymnasium, which is made of
concrete.
In the instant petition for review filed on November 23, 1992, petitioner seeks the
reversal of the decision and resolution of the Court of Appeals and a declaration that
Resolution No. 43-89 of the Municipality of Bunawan is null and void.
On December 8, 1993, the Court issued a temporary restraining order enjoining and
restraining public respondent Judge Evangeline Yuipco from enforcing her July 2, 1991
Order and respondent municipality from using and occupying all the buildings
constructed and from further constructing any building on the land subject of this
petition. 9
Acting on petitioners' Omnibus Motion for Enforcement of Restraining Order and for
Contempt, the Court issued a Resolution on March 15, 1995, citing incumbent municipal
mayor Anuncio C. Bustillo for contempt, ordering him to pay the fine and to demolish the
"blocktiendas" which were built in violation of the restraining order. 10
Former Mayor Anuncio C. Bustillo paid the fine and manifested that he lost in the May 8,
1995 election. 11 The incumbent Mayor Leonardo Barrios, filed a Manifestation, Motion to
Resolve "Urgent Motion for Immediate Dissolution of the Temporary Restraining Order"
and Memorandum on June 11, 1996 for the Municipality of Bunawan. 12
Petitioners contend that the Court of Appeals erred in upholding the legality of the
condemnation proceedings initiated by the municipality. According to petitioners, the
expropriation was politically motivated and Resolution No. 43-89 was correctly
disapproved by the Sangguniang Panlalawigan, there being other municipal properties
available for the purpose. Petitioners also pray that the former Mayor Anuncio C. Bustillo
be ordered to pay damages for insisting on the enforcement of a void municipal
resolution.
The Court of Appeals declared that the Sangguniang Panlalawigan's reason for
disapproving the resolution "could be baseless, because it failed to point out which and
where are those available lots.'" Respondent court also concluded that since the
Sangguniang Panlalawigan did not declare the municipal board's resolution as invalid,
expropriation of petitioners' property could
proceed. 13
The Court finds no merit in the petition and affirms the decision of the Court of Appeals.
Eminent domain, the power which the Municipality of Bunawan exercised in the instant
case, is a fundamental State power that is inseparable from sovereignty. 14 It is
government's right to appropriate, in the nature of a compulsory sale to the State, private
property for public use or purpose. 15 Inherently possessed by the national legislature,
the power of eminent domain may be validly delegated to local governments, other
public entities and public utilities. 16 For the taking of private property by the government
to be valid, the taking must be for public use and there must be just compensation. 17
The Municipality of Bunawan's power to exercise the right of eminent domain is not
disputed as it is expressly provided for in Batas Pambansa Blg. 337, the local
Government Code 18 in force at the time expropriation proceedings were initiated.
Section 9 of said law states:

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Sec. 9. Eminent Domain. — A local government unit may, through its head and acting
pursuant to a resolution of its sanggunian, exercise the right of eminent domain and
institute condemnation proceedings for public use or purpose.
What petitioners question is the lack of authority of the municipality to exercise this right
since the Sangguniang Panlalawigan disapproved Resolution No. 43-89.
Section 153 of B.P. Blg. 337 provides:
Sec. 153. Sangguniang Panlalawigan Review. — (1) Within thirty days after receiving
copies of approved ordinances, resolutions and executive orders promulgated by the
municipal mayor, the sangguniang panlalawigan shall examine the documents or
transmit them to the provincial attorney, or if there be none, to the provincial fiscal, who
shall examine them promptly and inform the sangguniang panlalawigan in writing of any
defect or impropriety which he may discover therein and make such comments or
recommendations as shall appear to him proper.
(2) If the sangguniang panlalawigan shall find that any municipal ordinance, resolution or
executive order is beyond the power conferred upon the sangguniang bayan or the
mayor, it shall declare such ordinance, resolution or executive order invalid in whole or in
part, entering its actions upon the minutes and advising the proper municipal authorities
thereof. The effect of such an action shall be to annul the ordinance, resolution or
executive order in question in whole or in part. The action of the sangguniang
panlalawigan shall be final.
The Sangguniang Panlalawigan's disapproval of Municipal Resolution No. 43-89 is an

infirm action which does not render said resolution null and void. The law, as expressed
in Section 153 of B.P. Blg. 337, grants the Sangguniang Panlalawigan the power to
declare a municipal resolution invalid on the sole ground that it is beyond the power of
the Sangguniang Bayan or the Mayor to issue. Although pertaining to a similar provision
of law but different factual milieu then obtaining, the Court's pronouncements in Velazco
v. Blas, 19 where we cited significant early jurisprudence, are applicable to the case at
bar.
The only ground upon which a provincial board may declare any municipal resolution,
ordinance, or order invalid is when such resolution, ordinance, or order is "beyond the
powers conferred upon the council or president making the same." Absolutely no other
ground is recognized by the law. A strictly legal question is before the provincial board in
its consideration of a municipal resolution, ordinance, or order. The provincial (board's)
disapproval of any resolution, ordinance, or order must be premised specifically upon the
fact that such resolution, ordinance, or order is outside the scope of the legal powers
conferred by law. If a provincial board passes these limits, it usurps the legislative
function of the municipal council or president. Such has been the consistent course of
executive authority. 20
Thus, the Sangguniang Panlalawigan was without the authority to disapprove Municipal
Resolution No. 43-89 for the Municipality of Bunawan clearly has the power to exercise
the right of eminent domain and its Sangguniang Bayan the capacity to promulgate said
resolution, pursuant to the earlier-quoted Section 9 of B.P. Blg. 337. Perforce, it follows
that Resolution No. 43-89 is valid and binding and could be used as lawful authority to
petition for the condemnation of petitioners' property.
As regards the accusation of political oppression, it is alleged that Percival Moday

incurred the ire of then Mayor Anuncio C. Bustillo when he refused to support the latter's
candidacy for mayor in previous elections. Petitioners claim that then incumbent Mayor
C. Bustillo used the expropriation to retaliate by expropriating their land even if there
were other properties belonging to the municipality and available for the purpose.
Specifically, they allege that the municipality owns a vacant seven-hectare property
adjacent to petitioners' land, evidenced by a sketch plan. 21

WEEK 3
The limitations on the power of eminent domain are that the use must be public,
compensation must be made and due process of law must be
observed. 22 The Supreme Court, taking cognizance of such issues as the adequacy of
compensation, necessity of the taking and the public use character or the purpose of the
taking, 23 has ruled that the necessity of exercising eminent domain must be genuine and
of a public character. 24 Government may not capriciously choose what private property
should be taken.
After a careful study of the records of the case, however, we find no evidentiary support
for petitioners' allegations. The uncertified photocopy of the sketch plan does not
conclusively prove that the municipality does own vacant land adjacent to petitioners'
property suited to the purpose of the expropriation. In the questioned decision,
respondent appellate court similarly held that the pleadings and documents on record
have not pointed out any of respondent municipality's "other available properties
available for the same purpose." 25 The accusations of political reprisal are likewise
unsupported by competent evidence. Consequently, the Court holds that petitioners'
demand that the former municipal mayor be personally liable for damages is without
basis.
WHEREFORE, the instant petition is hereby DENIED. The questioned Decision and
Resolution of the Court of Appeals in the case of "Percival Moday." et al. v.
Municipality of Bunawan, et al." (CA G.R. SP No. 26712) are AFFIRMED. The
Temporary Restraining Order issued by the Court on December 8, 1993 is LIFTED.
SO ORDERED.
Regalado, Puno, Mendoza and Torres, Jr., JJ., concur.
Footnotes
1 "Percival Moday V. Municipality of Bunawan, et.al." CA G.R. SP No. 26712, penned by

Justice Artemon D. Luna, with Justices Jose A.R. Melo (now a member of this Court)
and Segundino G. Chua, concurring. Rollo, p. 21, 36.
2 The lot is part of 5.6610 hectares covered by Transfer Certificate of Title No. T-3132 in
the name of Zotico Moday, married to Leonora Moday. The assessed value of the entire
lot in 1989 was P3,580.00 while the assessed value of one hectare is about P632.39.
3 Excerpts From the Minutes of the Regular Session of the Sangguniang Panlalawigan
of Agusan del Sur Held at the Session Hall, Training Center, Prosperidad, on September
11, 1989. Rollo, p. 85.
4 "Municipality of Bunawan, Agusan del Sur v. Percival Moday, et al.," Special Civil Case
No. 719, Judge Evangeline S. Yuipco, presiding.
5 "Sec. 19. Certain Acts of the Sangguniang Bayan Requiring Approval of the
Sangguniang Panlalawigan.— The following acts of the sangguniang bayan shall be
subject to the approval of the sangguniang panlalawigan:
(1) Permanent closure of a public road, street, alley, park or square; and
(2) Donation of municipal funds or property."
7 "Percival Moday, et al. v. Municipality of Bunawan, et al.," CA G.R. SP No.

26712, Rollo, pp. 21-25.
14 V. SINCO, PHILIPPINE POLITICAL LAW: PRINCIPLES AND CONCEPTS 592 (10th

ed., 1954) citing Kohl v. US, 91 U.S. 371. A. PIMENTEL, THE LOCAL GOVERNMENT
CODE OF 1991: THE KEY TO NATIONAL DEVELOPMENT 106 (1993). Visayan
Refining Co. v. Camus, 40 Phil. 550.

WEEK 3
15 BLACK's LAW DICTIONARY 616 (4th ed.) cited in I. CRUZ, CONSTITUTIONAL LAW
59 (1991 ed.); J. BERNAS, THE 1987 PHILIPPINE CONSTITUTION, A REVIEWER —
PRIMER 92 (2nd ed., 1992) citing Charles River Bridge V. Warren Bridge, 11 Pet. 420,
641 (US 1837).
16 BERNAS, op. cit. at 93; CRUZ, op. cit. at 59-60; Province of Camarines Sur v. CA,

G.R. No.103125, May 11, 1993, 222 SCRA 173.
17 Article III, Section 9 of the 1987 constitution states that "(p)rivate property shall not be
taken for public use without just compensation."
18 Approved on February 10, 1983, the Code was published in 79 O.G. No. 7. The Local
Government Code of 1991 (Republic Act No. 7160) took effect on January 1, 1992.
Evardone v. Comelec, G.R. No. 94010, December 2, 1991, 204 SCRA 464.
19 G.R. No. L-30456, July 30, 1982, 115 SCRA 540, 544-545. The law then in force,
Section 2233 of the Revised Administrative Code, also provided that "(i)f the board
should in any case find that any resolution, ordinance, or order, as aforesaid, is beyond
the powers conferred upon the council or mayor making the same, it shall declare such
resolution, ordinance, or order invalid, entering its action upon the minutes and advising
the proper municipal authorities thereof. The effect of such action shall be to annul the
resolution, ordinance, or order in question, subject to action by the Secretary of the
Interior as hereinafter provided."
20 At pages 544-545, citing Gabriel v. Provincial Board of Pampanga, 50 Phil. 686, 692-

693; Cariño v. Jamoralne, 56 Phil. 188, Manantan v. Municipality of Luna, 82 Phil. 844,
which cite the Opinions Attorney-General Wilfley (1905), II Op. Atty.-Gen., 557, 642,
Opinion Attorney-General Villa-Real, November 22, 1922; Opinion Attorney-General
Jaranilla, August 9, 1926; Provincial Circular Executive Bureau, September 16, 1918.
22 V. SINCO, op. cit. citing Visayan Refining Company v. Camus, supra. and In re

Fowler, 53 N.Y. 60.
23 Municipality of Meycauayan v. IAC, G.R. No. L-72126, January 29, 1988, 157 SCRA
640; J.M. Tuason v. Land Tenure Administration, 31 SCRA 413; National Power
Corporation v. Jocson, 206 SCRA 520; Republic v. IAC, 185 SCRA 572.
24 City of Manila v. Chinese Community of Manila, 40 Phil. 349 citing Morrison v.

Indianapolis, 166 Ind. 511; Stearns v. Barre, 73 Vt. 281, Wheeling v. Toledo, 72 Ohio St.
368.

WEEK 3
10. FAVIS VS CITY OF BAGUIO, GR L-22910, APRIL 25, 1969
G.R. No. L-29910 April 25, 1969
ANTONIO C. FAVIS, plaintiff-appellant,
vs.
THE CITY OF BAGUIO and THE SHELL COMPANY OF THE PHILIPPINES,
LIMITED, defendants-appellees.
Juan L. Fontanilla for plaintiff-appellant.

Lichauco, Picaso and Agcaoili and Roman Mabanta, Jr. for defendant-appellee Shell
Company.
The City Attorney for defendant-appellee City of Baguio.
SANCHEZ, J.: EN BANC
Key targets in plaintiff's complaint for the restoration of the original measurement — 8
meters wide — of the dead end of Lapu-Lapu Street are: (1) Resolution No. 132, Series
of 1961, authorizing the lease by the City of Baguio (hereinafter referred to as the City)
to Shell Company of the Philippines, Limited (Shell, for short) of Lot 25 of the Baguio
Market Subdivision and a portion of Lapu-Lapu Street abutting said lot; and (2)
Resolution No. 215, Series of 1961, amending the first mentioned resolution by
authorizing the vacation of the leased portion of Lapu-Lapu Street and the conversion of
the remainder by the side thereof into an alley of 5 meters wide (4 meters in actual use).
Plaintiff wants these resolutions stricken down as invalid. The court below ruled in the
negative. This appeal is the offshoot.
The facts are as follows:
On April 30, 1957, Antonio Favis bought a parcel of land of about 1,000 square meters
— Lot 2-E-3-B-3-B-2 of the subdivision plan (LRC) Psd-2179 — from the Assumption
Convent, Inc. Said lot is bounded on the southwest by Lot 2-E-3-B-3-B-1 (proposed
road), owned by Assumption Convent, Inc. and part of subdivision plan Psd-2179.
Simultaneous with the sale, Assumption donated to the City — "for road purposes" —
the lot indicated in its subdivision plan as the proposed road — Lot 2-E-3-B-3-B-1
aforesaid. This donated road is used by Favis as his means of egress and ingress from
his residence to a public street called Lapu-Lapu Street.
Lapu-Lapu Street is actually Lot 27 in the amendatory plan (Bcs-56-Amd 2, Residence

Section "B") And is a portion of a big tract of land registered in the name of the City,
known as Baguio Market Subdivision, for all of which the City holds Transfer Certificate
of Title No. 2209. branches out to various parts of the market subdivision. From its
intersecting point with Dagohoy Street and going northward, Lapu-Lapu Street is eight
(8) meters wide; 1 it abruptly ends as it meets portions of two lots — the donated road
aforementioned and the lot owned by Olmina Fernandez (Lot 2-E-3-B-1-A, Bsd-26963).
Fernandez' lot is fenced, with buildings; and there is a sharp depression of at least 2
meters at the precise point it meets Lapu-Lapu Street. Ocular inspection conducted by
the trial court disclosed that at the exact connecting point of Lapu-Lapu Street and the
donated road (which leads to appellant's land), the road opening is only 2.5 meters wide.

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Lot 25 of the Baguio Market Subdivision is northernmost in said subdivision and contains
an area of approximately 400 square meters. Immediately next to it, to the north, is the
lot of Olmina Fernandez aforesaid. As far back as June, 1947, the City, by virtue of
Resolution No. 115, Series of 1947, of the City Council of Baguio leased this Lot 25 to
Shell for a ten-year period renewable for another ten years. Shell constructed thereon a
service station of about 335 square meters.
On May 10, 1961, the City Council of Baguio passed Resolution No. 132 authorizing the
City thru its Mayor to lease to Shell two parcels of land described as follows:
A parcel of land, known as Lot No. 25 of the Market Subdivision and shown as "Lot A"
on Sketch Plan ... marked "Exhibit A" and made a part hereof, situated in the City of
Baguio, containing an area of 335 sq. m....
and
Also a parcel of land containing an area of 100 sq. m. more or less, marked as "Lot B"
on Sketch Plan...
Lot 25 (Lot A), it is to be noted, is the same lot leased to Shell way back in June, 1947
and the lease of Lot B is merely an addition thereto. This additional area taken from
Lapu-Lapu Street is five (5) meters wide and twenty (20) meters long and abuts Lot 25.
About three weeks later, the City, thru its Mayor entered into a formal contract of lease
with Shell. 2
Shell filed an application with the Office of the City Engineer of Baguio for a building
permit for the construction of a new and bigger gasoline station on the leased premises.
Said office, in a letter to the City Council thru the City Mayor dated June 30, 1961, noted
that the leased "[1] to 'B' which consists of 100 square meters is exactly within the road
right-of-way of Lapu-Lapu Street," is for public use, and may not be leased.
On July 5, 1961, appellant Antonio C. Favis lodged a letter-protest against the additional
lease made in favor of Shell. He claimed that it would diminish the width of Lapu-Lapu
Street to five meters only; that it would destroy the symmetry of the said street thus
making it look very ugly; and that the City was bereft of authority to lease any portion of
its public streets in favor of anyone.
Apparently to obviate any and all objections to the lease of the additional area to Shell,
the City Council of Baguio, on July 19, 1961, passed Resolution No. 215, amending
Resolution No. 132, Series of 1961, by converting that "portion of Lapu-Lapu Street lying
southeast from Lot B of the sketch plan prepared March 10, 1961 by Private Land
Surveyor Perfecto B. Espiritu, beginning at this portion's intersection with Dagohoy
Street, into an alley 5.00 meters wide (4 m. now in actual use); declaring for this
purpose, that said Lot B shall not be a part of this alley."
On November 29, 1961, Favis commenced suit for the annulment of the lease contract
with damages in the Court of First Instance of Baguio. 3 He prayed that (1) defendants be
ordered to stop, remove and/or demolish whatever constructions had been introduced at
the additional leased area on Lapu-Lapu Street; (2) the building permit and contract of
lease entered into by and between the defendants be cancelled and revoked for being
null and void; and (3) defendants be directed to pay, jointly and severally, actual,
compensatory, corrective and consequential damages totalling P50,000, attorneys' fees
in the sum of P2,000, and the costs.
After hearing, the lower court, on May 21, 1962, rendered judgment uphelding the two
questioned resolutions and dismissing the complaint, with costs.
We first address ourselves to the preliminary questions raised in the appeal.lawphi1.nêt

WEEK 3
1. Amongst these is appellant's charge that the resolutions directing the partial closing of
Lapu-Lapu Street and the lease thereof are invalid. Because, so appellant avers, those
resolutions contravene the City Charter. He relies on subsection (L) of Section 2553 of
the Revised Administrative Code. It provides that the powers granted to the City —
including the power to close streets — shall be carried "into effect by ordinance."
This objection is directed at form, not at substance. It has been held that "even where
the statute or municipal charter requires the municipality to act by ordinance, if a
resolution is passed in the manner and with the statutory formality required in the
enactment of an ordinance, it will be binding and effective as an ordinance." 4 Such
resolution may operate regardless of the name by which it is called. 5
Resolutions No. 132 and 215, Series of 1961, were unanimously approved with all the
councilors present and voting, carried the seal of the city council, were signed by the
City Vice-Mayor, the Presiding Officer, approved by the City Mayor, and attested by the
City Secretary. With the presumption of validity of the resolution and the other
presumption that official duty has been regularly performed, the embattled resolutions
are just as good as ordinances and have the same force.
2. Appellant cites lack of advertisement or direct notice to owners of contiguous

properties whose rights might be affected, as another ground to show invalidity of the
resolutions. The pertinent provision of the charter reads, thus: .
... to carry into effect by ordinance the powers hereinbefore granted in this subsection,
but no ordinance shall provide for more than one project of any of the kinds named
herein, nor create more than one district, assessment, and fund necessary and
appropriate therefor, and in each and every such ordinance provision shall be made for
notice to any and all persons interested, giving them and each of them not less than two
weeks from and after the date of depositing a notice in the post-office at Baguio in a
securely sealed postpaid wrapper addressed to each person affected thereby and
assessed thereunder at his last known place of residence, or at Baguio if no place of
residence is known, or to an agent who may be or may have been appointed by such
person in writing, in which to appear and file objection to either the work itself, the
method or manner of assessment, the time or times and method of payment therefor, or
to all thereof and such other and further objection or objections as may seem to any
such person or persons reasonable and proper in the premises: such notice shall set
forth the nature of the proposed improvement, the estimated cost therefor, the
total amount of the assessment to be levied therefor, and the amount to be levied upon
each parcel of the property or possession of the addressee; any and every such
appearance and objection shall be made and heard only before the city council, and
council may, at any such hearing alter, modify, or increase the area of such district, the
total assessment thereof, or any individual area or assessment objected to therein, and
shall decide any and every such objection within ten days after the filing thereof and give
notice of such decision to the person or persons interested in the manner hereinbefore
provided for notice of such assessment within five days thereafter....6
The requirement of notice specified in the aforequoted provision of the city charter is not
applicable to the case at bar. It will be observed that the notice is to be given "to any,
and all persons interested", to be placed in a securely sealed postpaid wrapper
addressed "to each person affected thereby and assessed thereunder." The accent is on
the word and. The person "affected" must also be "assessed". And then, "such notice
shall set forth the nature of the proposed improvement, the estimated cost therefor, the
total amount of the assessment to be levied therefor, and the amount to be levied upon
each parcel of the property or possession of the addressee." In turn, the council, after
hearing objections, may "alter, modify, or increase the area of [the] district, the total
assessment thereof, or any individual area or assessment objected to therein."
Clearly then, this method of giving notice applies only when an ordinance calls for an
assessment. So that where no assessment has been made or is to be made, such
notice need not be given.

WEEK 3
In the case at bar, the resolutions in question do not at all call for any kind of
assessment against appellant or his land. Hence, the notice that appellant would want to
have, need not be given.
Besides, appellant did actually protest Resolution 132 authorizing the lease to Shell.
Such protest was, however, overruled. And the council passed Resolution 215, in effect,
confirming the lease. The purpose of notice — on the assumption that appellant is
entitled thereto — is subserved. Appellant has no cause for complaint.
3. We now direct attention to appellant's plaint that the questioned resolutions narrowed
down, much to his prejudice, the width of Lapu-Lapu Street at its connecting point with
the donated road which, in turn, leads to his land. The reduction of the usable width from
8 meters to 4 meters cannot be done, so he argues, because said resolutions violate
Executive Order No. 113, Series of 1955, issued by President Ramon Magsaysay,
particularly the following:
IV. MUNICIPAL ROADS:
All highways not included in the above classifications, Municipal and city roads shall
have a right-of-way of not less than ten (10) meters; provided that the principal streets of
town sites located on public lands shall have a width of sixty (60) meters and all other
streets a width of not less than fifteen (15) meters.7
We do not go along with appellant. First, because the 2.5 meter opening connecting the
donated road and Lapu-Lapu Street has always been that wide since the donated road
was opened. The fact that this opening is 2.5 meters, is confirmed by the ocular
inspection personally made by the trial judge himself. The occupancy by Shell of a
portion of the road right-of-way did not in any way put appellant to any more
inconvenience than he already had. His outlet to Lapu-Lapu Street of 2.5 meters still
remains the same.
In the second place, the resolutions in question do not have the effect of decreasing the
width of the opening because said opening is far from the leased portion of Lapu-Lapu
Street. The said leased portion is on the left side of Lapu-Lapu Street, whereas the
opening lies on the right uppermost part of Lapu-Lapu Street. That leased strip does not
reach said opening. In fact, while the lease contract authorized Shell to take 5 meters
wide of Lapu-Lapu Street, Shell occupied only 4 meters wide. 8
Thirdly, the executive order could not have been violated because even before its
promulgation, Lapu-Lapu Street was only 8 meters wide, and the said executive order
did not demand widening to 10 meters of existing streets. For it to have so ordered
would have entailed huge expenditure not only on the part of Baguio City but many other
municipal corporations as well which have streets less than 10 meters wide. For,
compensation for the expropriation of private property would have to be given.
4. The main thrust of appellant's arguments is that the city council does not have the
power to close city streets like Lapu-Lapu Street. He asserts that since municipal bodies
have no inherent power to vacate or withdraw a street from public use, there must be a
specific grant by the legislative body to the city or municipality concerned.
Considering that "municipal corporations in the Philippines are mere creatures of

Congress; that, as such, said corporations possessed, and may exercise, only such
power as Congress may deem fit to grant thereto", 9 a reference to the organic act of the
City of Baguio appears to be in order. In subsection (L) of Section 2558 of the Review
Administrative Code (Baguio Charter), the language of the grant of authority runs thus —
(L) To provide for laying out, opening, extending, widening, straightening, closing up,
constructing, or regulating, in whole or in part, any public plaza, square, street, sidewalk,
trail, park, waterworks, or water remains, or any cemetery, sewer, sewer connection or
connections, either on, in, or upon public or private property; .... 10

WEEK 3
Undoubtedly, the City is explicitly empowered to close a city street.
We may drive home the point by presenting here the converse of the rule as set forth
in Unson vs. Lacson, supra. There, as here, the municipal board passed an ordinance
(No. 3470) withdrawing the northern portion of Callejon del Carmen from public use,
declaring it patrimonia property of the City of Manila and authorizing its lease to Genato
Commercial Corporation. Unson had a lot bordering Callejon del Carmen on which
several buildings stood. One of such buildings was known as "Commerce Building".
Prior to the construction of Genato's building on the leased premises, Unson's lot had on
its southern boundary two exits on Callejon del Carmen which had to be closed upon the
construction of said building. Unson went to court alleging that the ordinance and the
contract of lease with Genato were illegal. The trial court upheld the city's authority to
withdraw such alley for public use and to convert it into patrimonial property. But, on
appeal, we held:
In this connection, respondents have been unable to cite any legal provision specifically
vesting in the City of Manila the power to close Callejon del Carmen. Indeed, section
18(x) of Republic Act No. 409 — upon which appellees rely — authorizes the Municipal
Board of Manila "subject to the provisions of existing laws, to provide for the laying
out, construction and improvement ... of streets, avenues, alleys ... and other public
places," but it says nothing about the closing of any such places. The significance of this
silence becomes apparent when contrasted with section 2246 of the Revised
Administrative Code, explicitly vesting in municipal councils of regularly organized
municipalities the power to close any municipal road, street, alley, park or square,
provided that persons prejudiced thereby are duly indemnified, and that the previous
approval of the Department Head shall have been secured. The express grant of such
power to the aforementioned municipalities and the absence of said grant to the City of
Manila lead to no other conclusion than that the power was intended to be withheld from
the latter.11
5. So it is, that appellant may not challenge the city council's act of withdrawing a strip of
Lapu-Lapu Street at its dead end from public use and converting the remainder thereof
into an alley. These are acts well within the ambit of the power to close a city street. The
city council, it would seem to us, is the authority competent to determine whether or not
a certain property is still necessary for public use. 12
Such power to vacate a street or alley is discretionary. And the discretion will not
ordinarily be controlled or interfered with by the courts, absent a plain case of abuse or
fraud or collusion. Faithfulness to the public trust will be presumed. So the fact that some
private interests may be served incidentally will not invalidate the vacation ordinance. 13
Deemed as material factors which a municipality must consider in deliberating upon the
advisability of closing a street are: "the topography of the property surrounding the street
in the light of ingress and egress to other streets; the relationship of the street in the road
system throughout the subdivision; the problem posed by the 'dead end' of the street;
the width of the street; the cost of rebuilding and maintaining the street as contrasted to
its ultimate value to all of the property in the vicinity; the inconvenience of those visiting
the subdivision; and whether the closing of the street would cut off any property owners
from access to a street." 14
We now take a look at the factors Considered by the City Council of Baguio in vacating a
portion of Lapu-Lapu Street. These appear in the resolution (Resolution 215) itself, thus:
WHEREAS, that portion of the road right-of-way of Lapu-Lapu Street, Baguio, beginning
with its intersection, with Dagohoy Street does not have much traffic, being in fact a
dead end street;
AND WHEREAS, the conversion of this portion of Lapu-Lapu Street into a five-meter
alley would neither prejudice nor damage any person or property;

WEEK 3
AND WHEREAS, in the subdivision scheme of the burned area of the City Market
Subdivision, already approved by the City Council, provision was made for another road
behind Lapu-Lapu Street interesting Dagohoy Street.
Besides, there are the specific findings by the trial court that the "2.5 opening is sufficient
for Plaintiff to enter and exit from the lot he purchased from Assumption Convent, Inc.";
that the "present road right of way was rendered narrow by surrounding properties and
is sufficient for the needs of the Plaintiff"; and that the "portion leased to Shell Company
was not necessary for public use." We are bound by these findings of fact.
By the embattled resolutions, no right of the public is overwhelmed, none defeated.

Public interest was not at all disregarded. On the contrary, some benefit did flow from
the withdrawal of a portion of the street and the lease thereof. The City saves from the
cost of maintenance, gets some income yet.
Given the precept that the discretion of a municipal corporation is broad in scope and
should thus be accorded great deference in the spirit of the Local Autonomy Law (R.A.
2264), and absent a clear abuse of discretion, we hold that the withdrawal for lease of
the disputed portion of Lapu-Lapu Street and the conversion of the remainder of the
dead-end part thereof into an alley, does not call for, and is beyond the reach of, judicial
interference.
6. From the fact that the leased strip of 100 square meters was withdrawn from public
use, it necessarily follows that such leased portion becomes patrimonial property. Article
422 of the Civil Code indeed provides that property of public domain, "when no longer
intended for public use or public service, shall form part of the patrimonial property of the
State." Authority is not wanting for the proposition that property for public use of
provinces and towns are governed by the same principles as property of public dominion
of the same character." 15 There is no doubt that the strip withdrawn from public use and
held in private ownership may be given in lease. For amongst the charter powers given
the City of Baguio (Section 2541, Revised Administrative Code [Charter of the City of
Baguio] ) is to "lease ... real ... property, for the benefit of the city...."
7. We now look into appellant's averment that by reducing the original width of Lapu-
Lapu Street, his entrance and exit to and from his property has become very difficult;
that it is now impossible for his big trucks and trailers to turn around; that it made the
area around it very dangerous in case of fire; and that it has caused perpetual danger,
annoyance, irreparable loss and damage not only to the public in general but especially
to heroin plaintiff in particular. For all these, he asks for damages.
First to the governing principle: "The general rule is that one whose property does not
abut on the closed section of a street has no right to compensation for the closing or
vacation of the street, if he still has reasonable access to the general system of streets.
The circumstances in some cases may be such as to give a right to damages to a
property owner, even though his property does not abut on the closed section. But to
warrant recovery in any such case the property owner must show that the situation is
such that he has sustained special damages differing in from those sustained by kind,
and not merely in degree, the public generally." 16
In the case at bar, no private right of appellant has been invaded. No special damage or
damages he will incur by reason of the closing of a portion of Lapu-Lapu Street at its
dead-end. His property does not abut that street. In fact, the court has found that the
remaining portion of Lapu-Lapu Street, which actually is 4 meters in width, is sufficient
for the needs of appellant and that the leased portion — subject of this suit — "was not
necessary for public use." Furthermore, it is physically impossible to connect Lapu-Lapu
Street in its entire width — 8 meters — with the area donated to the City or Assumption
Convent, for the reason that the only outlet between them is 2.5 meters wide. Even
appellant's allegation that by reducing the width of Lapu-Lapu Street it is now impossible
for his big trucks to turn around is of dubious veracity on the face of his testimony that
turning around at the original Lapu-Lapu Street or at the junction of Lapu-Lapu Street
and the donated road has not been tried before and that his trucks actually do their

WEEK 3
maneuvering at the intersection of Dagohoy Street and Lapu-Lapu Street. 17 Further, as
stated in the resolution, provision has been "made for another road behind Lapu-Lapu
Street and intersecting Dagohoy Street." It has been said that —
The Constitution does not undertake to guarantee to a property owner the public
maintenance of the most convenient route to his door. The law will not permit him to be
cut off from the public thoroughfares, but he must content himself route for outlet as the
regularly constituted public with such authority may deem most compatible with the
public welfare. When he acquires city property, he does so in tacit recognition of these
principles. If, subsequent to his appreciation, the city authorities abandon a portion of the
street to which his property is not immediately adjacent, he may suffer loss because of
the inconvenience imposed, but the public treasury cannot be required to recompense
him. Such case is damnum absque injuria.18
For the reasons given, the appealed judgment of the Court of First Instance of Baguio
declaring valid Resolution No. 132, Series of 1961, and Resolution No. 215, Series of
1961, both of the City Council of Baguio, and ordering the dismissal of the complaint as
well as the counterclaim, is hereby affirmed.
Costs against plaintiff-appellant.
Dizon, Makalintal, Zaldivar, Fernando, Teehankee and Barredo, JJ., concur.

Reyes, J.B.L., Actg. C.J., concurs and certifies that the Chief Justice voted in favor of
this opinion before going on official leave.
Castro, J., is on leave.
Capistrano, J., took no part.
Footnotes
1
Leo V. Bernardez, a senior civil engineer in the Office of the City Engineer of Baguio
City, testified that the actual width of Lapu-Lapu Street is "about eight meters plus a
sidewalk on the shoulder of the road of about one and a half meters." Tr. April 2, 1962,
p. 54.
2
The contract was signed by Shell's Vice President and General Manager on June 1,
1961 and by the City Mayor of Baguio on June 9, 1961.
3
Civil Case No. 1081, entitled "Antonio C. Favis, Plaintiff, vs. The City of Baguio and the
Shell Company of the Philippines, Limited, Defendants".
4
37 Am. Jur., p. 667. Dillon comments, thus: "But mere form will not affect the validity of
the action of the council if its adoption be attended by all the solemnities which the law
requires in the case of an act complying with the prescribed form. Thus, when the statute
declares that the action of the council shall be evidenced by a resolution, the fact that it
is embodied in an ordinance does not affect its validity. The ordinance has all the
essential elements of the resolution, and, in addition, is adopted by a more formal and
deliberative procedure than a resolution. And a resolution concerning a subject which is
inherently legislative in its character and for which an ordinance is required, will, if
adopted with all the formalities required in the case of an ordinance, be regarded as an
ordinance and given effect accordingly. The substance, and not the form, of the
corporate act is what governs. But if the charter requires the act to be done by ordinance
a resolution cannot receive effect as an ordinance if it is not affirmatively established that
it was passed with all the formalities and published in the same manner as an
ordinance." Dillon, Municipal Corporations, 5th ed., vol. II, pp. 894-897.
5
62 C.J.S., p. 787.
Subsection (L), Section 2553 of the Revised Administrative Code [City Charter of
6
Baguio], emphasis supplied.
9
Unson vs. Lacson, 100 Phil. 695. 700.

WEEK 3
Unson vs. Lacson, supra, at p. 699, emphasis supplied.
11
12
Cf. Joven vs. Director of Lands, 93 Phil. 134, 136-137; Ignacio vs. Director of Lands, L-
12958, May 30, 1960.
13
11 McQuillin, Municipal Corporations, 3rd ed., p. 128, citing cases.
14
"The aforementioned factors, although not supplying all considerations, nevertheless
furnish a fair standard for the determination by a governing body as to whether a street
is useful for public purpose and should not be closed." Torrance vs. Caddo Parish Police
Jury (1960), 119 So. 2d 617, 620.
II Tolentino, Civil Code of the Philippines, 1963 ed., p. 36, citing 3 Manresa 111; Tan
15
Toco vs. Municipality of Iloilo, 49 Phil. 52, 55; Espiritu vs. Municipal Council (S.C.), 54
Off. Gaz. 5140; City of Manila vs. Guevarra (C.A.) 50 Off. Gaz. 868; Province of Rizal vs.
Santos, (C.A.) 56 Off. Gaz. 7968.
Puyper vs. Pure Oil Co. (1952), 60 So. 2d. 569, 573, citing 18 Am. Jur., p. 856,
16
emphasis supplied. See also: Coy vs. City of Tulsa (1933), 2 F. Supp. 411, 414.
Tr., March 6, 1962, p. 32.

17
18
Richmond vs. City of Hinton (1936), 185 S.E. 411, 412-413. See also; New York, C. &
St. L.R. Co. vs. Bucsi (1934), 190 N.E. 562, 565.
11. RABUCO VS VILLEGAS, 55 SCRA 656, 1974

WEEK 3
G.R. No. L-24661 February 28, 1974
BENJAMIN RABUCO, VENANCIO G. GUIRNALDA, LEODEGARIO ALOBA,

ELEUTERIO IBAÑES, ROGELIO ARAGONES, ASENCIO ABANCO, BENEDICTO
BAUTISTA, MAXIMO AQUINO, PAULINA DALUMIAS, NENITA RAMOS,
GUILLERMO VARIAS, EMELDA ARELLANO, PEDRO BILBAO, ERNESTO
BONBALES, ROSITA OCA BAUTISTA, TERESITA ESTEBAN, JOSE BENJAMIN,
LORENZO BELDEVER, LEODEGARIO TUMLOS, PATRICIO MALATE, ANSELMO
CORTEJOS, ANACLETA ADUCA, SALOME BARCELONA, ENRICO CELSO, IRENE
CAMBA, MARIA COLLADO, RUFINO CANTIL, ANANIAS CANILLO, MAXIMO DE
CASTRO, CEFERINO SALAZAR, PATRIA ANAYA, FELISA VELASCO, IGNACIO
SARASPI, FLAVIO DINAGUIT, REMEDIOS BAROMETRO, PEDRO GEBANIA,
RUBEN GEGABALEN, EMETRIO EDAÑO, LUCIANO ARAGONES, ADRIANO
ESTRELLADO, BONIFACIO EVARISTO, ISIDORO EDORIA, TIMOTEA ECARUAN,
BIENVENIDO COLLADO, CENON DAJUYA, RAFAELA FERNANDEZ, ALFONSO
FAUSTINO, AVELINO GARCIA, RICARDO GUIRNALDA, FRANCISCO HENERAL,
CARMEN KIONESALA, FELICIANO LUMACTOD, DOLORES VILLACAMPA,
NARCISO LIM, EUFEMIO LEGASPI, MATILDE MABAQUIAO, EULOGIO VIÑA,
MACARIO ANTONIO, JEREMIAS DE LA CRUZ, MARTIN MANGABAN, SIMEON
MANGABA T., CARIDAD MER MILLA, FELIX MAHINAY, NAPOLEON MARZAN,
ISAIAS MANALASTAS, JOSEFA CORVERA, JOSE APRUEDO, ARSENIO REYES,
EUGENIA A. ONO, CORNELIO OPOLENCIA, SEDECIAS PASCUA, ABUNDIO
PAGUNTALAN, ESPERANZA DE QUIROS, CRESENCIO SALEM, MOISES
FERNANDEZ, FORTUNATO GONZALES, SOCORRO R. VALEN, RODOLFO
COLLADO, VENERIO CELSO, GREGORIO DE LA CRUZ, CELSO ALCERA,
NICOLAS ARAGONES, JOSEFINA MANANSALA, ADELAIDA CALASIN , JOSE
AGUSTIN, TOMAS JOSEPH, MANUEL DADOR, SERGIO LIPATON, ERNESTO
SUMAYDING, MARCELINO DIOSO, MIGUEL ALCERA, CRISANTA ENAMER, JUAN
VIADO HILARION CHIOCO, EUROPIA CABAHUG, VICTORIA DUERO, CONSORCIO
ENOC, MAMERTO GAMONIDO, BONIFACIO SABADO, MARIA INTROLIZO, HENRY
ENOLBA, REYNALDO LIM, FORTUNATO LIPON, ERNESTO MALLOS,
FLORENTINA PATRICIO, MAMERTO PALAPALA, RAMON DE PERALTA, JOSE
PARRAS, APOLINARIO YAP, JUAN ROQUE, FELIX ROQUE, GLICERIA SALAZAR,
MIGUELA SABIO, AGAPITO SAYAS, PAULINO SARROZA, PACIFICO JUANICO,
LIBERADO TULAWAN, LIGAYA LAUS, ERNESTO VERZOSA, LEOPOLDO
BERNALES, JAIME VISTA, ISAIAS AMURAO, BENITA M. BARENG, and BRIGIDA
SANCHEZ, petitioners,
vs.
HON. ANTONIO J. VILLEGAS substituted by HON. RAMON BAGATSING as CITY
MAYOR OF MANILA, HON. LADISLAO J. TOLENTINO, City Engineer of Manila,
their agents, employees, assistants and all persons acting under them; HON.
BENJAMIN GOZON, Administrator, Land Reform Authority substituted by HON
CONRADO ESTRELLA as Secretary of the Department of Agrarian Reforms and
his agents, employees, assistants and all persons acting under his
orders, respondent.1
G.R. No. L-24915 February 28, 1974
BENJAMIN RABUCO, et al., (the same co-petitioners in L-24661), petitioners,

vs.
MAYOR OF MANILA, et al., (the same co-respondents in L-24661), respondents.
G.R. No. L-24916 February 28, 1974
BENJAMIN RABUCO, et al. (the same co-petitioners in L-24661), petitioners-

appellants,
vs.
MAYOR OF MANILA, et al., (the same co-respondents in L-24661), respondents-
appellees.

WEEK 3
Manuel D. Melotindos and Ricardo M. Guirnalda for petitioners.
Second Assistant City Fiscal Manuel T. Reyes for respondents.
TEEHANKEE, J.: EN BANC
The Court herein upholds the constitutionality of Republic Act 3120 on the strength of
the established doctrine that the subdivision of communal land of the State (although
titled in the name of the municipal corporation) and conveyance of the resulting
subdivision lots by sale on installment basis to bona fide occupants by Congressional
authorization and disposition does not constitute infringements of the due process
clause or the eminent domain provisions of the Constitution but operates simply as a
manifestation of the legislature's right of control and power to deal with State property.
The origin and background of the cases at bar which deal with the decisive issue of
constitutionality of Republic Act 3120 enacted on June 17, 1961, as raised by
respondent mayor of Manila in resisting petitioners' pleas that respondent mayor not only
lacks the authority to demolish their houses or eject them as tenants and bona fide
occupants of a parcel of land in San Andres, Malate2 but is also expressly prohibited
from doing so by section 2 of the Act, may be summarized from the Court of
Appeals'3 certification of resolution of May 31, 1965 as follows:
Case L-24916 involves petitioners' appeal to the Court of Appeals 4 from the decision of

the Manila court of first instance dismissing their petition for injunction and mandamus to
enjoin the demolition of their houses and the ejectment from the public lots in question
and to direct respondent administrator of the Land Authority (now Secretary of Agrarian
Reform) to implement the provisions of Republic Act 3120 for the subdivision and sale
on installment basis of the subdivided lots to them as the tenants and bona fide
occupants thereof, and instead ordering their ejectment.
Case L-24915 involves petitioners' independent petition for injunction filed directly with

the Court of Appeals January 29, 19655 to forestall the demolition overnight of their
houses pursuant to the order of demolition set for January 30, 1965 at 8 a.m. issued by
respondents city officials pending the elevation of their appeal. The appellate court gave
due course thereto and issued the writ of preliminary injunction as prayed for.
The two cases were ordered "consolidated into one" since they were "unavoidably
interlaced." The appellate court, finding that the constitutionality of Republic Act 3120
was "the dominant and inextricable issue in the appeal" over which it had no jurisdiction
and that the trial court incorrectly "sidetracked" the issue, thereafter certified the said
cases to this Court, as follows:
The validity of Republic Act 3120 which was seasonably posed in issue in the court
below was sidetracked by the trial court, thus:
The constitutionality of Republic Act No. 3120 need not be passed upon as the principal
question in issue is whether the houses of the petitioners are public nuisances, which
the court resolved in the affirmative. As a matter of fact even if the petitioners were
already the owners of the land on which their respected houses are erected, the
respondent city officials could cause the removal thereof as they were constructed in
violation of city ordinances and constitute public nuisance.
It is significant to note, however, that what is sought by the respondent City Mayor and
City Engineer of Manila is not only the demolition of the petitioners' houses in the
premises in controversy, but their ejectment as well. Moreover, Republic Act 3120 does
intend not only the dismissal of the ejectment proceedings against the petitioners from
the land in controversy upon their motion, but as well that any demolition order issued
against them shall also have to be dismissed. The law says:
Upon approval of this Act no ejectment proceedings against any tenants or bona fide
occupant shall be instituted and any proceedings against any such tenant or bona

WEEK 3
fide occupant shall be dismissed upon motion of the defendant. Provided, That any
demolition order directed against any tenant or bona fide occupant thereof, shall be
dismissed. (Sec. 2, R. A. 3120).
Indeed, the petitioners-appellants, who contended in the court below that it was not
necessary to decide on the validity or constitutionality of the law, now asseverate that
'Republic Act No. 3120 expressly prohibits ejectment and demolition of petitioners'
home.' The petitioners' argument in their appeal to this Court runs as follows:
1. Petitioners-appellants are entitled to the remedies of injunction and mandamus, being

vested with lawful possession over Lot 21-B, Block 610, granted by law, Republic Act
No. 3120.
2. Civil Case No. 56092 has not been barred by any prior judgment, as wrongly claimed
by respondents-appellees.
3. Ejectment and demolition against petitioners-appellants are unlawful and clearly

prohibited by Republic Act No. 3120.
The defense of the respondents Mayor and City Engineer of Manila to arguments 2 and
3 is the invalidity of the said Republic Act 3120 for being in violation of the Constitutional
prohibition against the deprivation of property without due process of law and without
just compensation. So that even if argument 2 interposed by the petitioners-appellants
should be rejected, still they may claim a right, by virtue of the aforesaid provisions of
Republic Act 3120, to continue possession and occupation of the premises and the lifting
of the order of demolition issued against them. The constitutionality of the said Republic
Act 3120, therefore, becomes the dominant and inextricable issue of the appeal.
Case L-24661 for the continuation and maintenance of the writ of preliminary injunction

previously issued by the Court of Appeals for preservation of the status quo was filed by
petitioners directly with this Court on June 21, 1965, pending transmittal of the records of
Cases L-24915 and L-24916 to this Court as certified by the Court of Appeals which
declared itself without jurisdiction over the principal and decisive issue of constitutionality
of Republic Act 3120.
The Court gave due course thereto and on August 17, 1965 issued upon a P1,000 —
bond the writ of preliminary injunction as prayed for enjoining respondents "from
demolishing and/or continuing to demolish the houses of herein petitioners situated in
Lot No. 21-B, Block No. 610 of the Cadastral Survey of the City of Manila, or from
performing any act constituting an interference in or disturbance of their present
possession."
The records of two cases certified by the appellate court, L-24915 and L-24916, were
eventually forwarded to this Court which per its resolution of August 24, 1965 ordered
that they be docketed and be considered together with case L-24661.
In the early morning of April 19, 1970, a large fire of undetermined origin gutted the
Malate area including the lot on which petitioners had built their homes and dwellings.
Respondents city officials then took over the lot and kept petitioners from reconstructing
or repairing their burned dwellings. At petitioners' instance, the Court issued on June 17,
1970 a temporary restraining order enjoining respondents city officials "from performing
any act constituting an interference in or disturbance of herein petitioners' possession of
Lot No. 21-B, Block No. 610, of the Cadastral Survey of the City of Manila" as
safeguarded them under the Court's subsisting preliminary injunction of August 17,
1965.
The "dominant and inextricable issue" at bar, as correctly perceived by the appellate
court is the constitutionality of Republic Act 3120 whereby Congress converted the lot in
question together with another lot in San Andres, Malate "which are reserved as
communal property" into "disposable or alienable lands of the State to be placed under
the administration and disposal of the Land Tenure Administration" for subdivision into

WEEK 3
small lots not exceeding 120 square meters per lot for sale on installment basis to the
tenants or bona fide occupants thereof 6 and expressly prohibited ejectment and
demolition of petitioners' homes under section 2 of the Act as quoted in the appellate
court's certification resolution, supra.
The incidental issue seized upon by the trial court as a main issue for "sidetracking" the
decisive issue of constitutionality, to wit, that petitioners' houses as they stood at the
time of its judgment in 1965 "were constructed in violation of city ordinances and
constituted public nuisances" whose removal could be ordered "even if petitioners were
already the owners of the land on which their respective houses are erected" has
become moot with the burning down of the petitioners' houses in the fire of April 19,
1970.
If the Act is invalid and unconstitutional for constituting deprivation of property without
due process of law and without just compensation as contended by respondents city
officials, then the trial court's refusal to enjoin ejectment and demolition of petitioners'
houses may be upheld. Otherwise, petitioners' right under the Act to continue
possession and occupation of the premises and to the lifting and dismissal of the order
of demolition issued against them must be enforced and the trial court's judgment must
be set aside.
Respondents city officials' contention that the Act must be stricken down as
unconstitutional for depriving the city of Manila of the lots in question and providing for
their sale in subdivided small lots to bona fide occupants or tenants without payment of
just compensation is untenable and without basis, since the lots in question are
manifestly owned by the city in its public and governmental capacity and are therefore
public property over which Congress had absolute control as distinguished from
patrimonial property owned by it in its private or proprietary capacity of which it could not
be deprived without due process and without just compensation.7
Here, Republic Act 3120 expressly declared that the properties were "reserved as
communal property" and ordered their conversion into "disposable and alienable lands of
the State" for sale in small lots to the bona fide occupants thereof. It is established
doctrine that the act of classifying State property calls for the exercise of wide
discretionary legislative power which will not be interfered with by the courts.
The case of Salas vs. Jarencio8 wherein the Court upheld the constitutionality of
Republic Act 4118 whereby Congress in identical terms as in Republic Act 3120 likewise
converted another city lot (Lot 1-B-2-B of Block 557 of the cadastral survey of Manila
also in Malate) which was reserved as communal property into disposable land of the
State for resale in small lots by the Land Tenure, Administration to the bona fide
occupants is controlling in the case at bar.
The Court therein reaffirmed the established general rule that "regardless of the source
or classification of land in the possession of a municipality, excepting those acquired
with its own funds in its private or corporate capacity, such property is held in trust for
the State for the benefit of its inhabitants, whether it be for governmental or proprietary
purposes. It holds such lands subject to the paramount power of the legislature to
dispose of the same, for after all it owes its creation to it as an agent for the performance
of a part of its public work, the municipality being but a subdivision or instrumentality
thereof for purposes of local administration. Accordingly, the legal situation is the same
as if the State itself holds the property and puts it to a different use" 9 and stressed that
"the property, as has been previously shown, was not acquired by the City of Manila with
its own funds in its private or proprietary capacity. That it has in its name a registered
title is not questioned, but this title should be deemed to be held in trust for the State as
the land covered thereby was part of the territory of the City of Manila granted by the
sovereign upon its creation." 10
There as here, the Court holds that the Acts in question (Republic Acts 4118
in Salas and Republic Act 3120 in the case at bar) were intended to implement the social
justice policy of the Constitution and the government program of land for the landless

WEEK 3
and that they were not "intended to expropriate the property involved but merely
to confirm its character as communal land of the State and to make it available for
disposition by the National Government: ... The subdivision of the land and conveyane of
the resulting subdivision lots to the occupants by Congressional authorization
does not operate as an exercise of the power of eminent domain without just
compensation in violation of Section 1, subsection (2), Article III of the Constitution, 11 but
simply as a manifestation of its right and power to deal with state property." 12
Since the challenge of respondents city officials against the constitutionality of Republic
Act 3120 must fail as the City was not deprived thereby of anything it owns by
acquisition with its private or corporate funds either under the due process clause or
under the eminent domain provisions of the Constitution, the provisions of said Act must
be enforced and petitioners are entitled to the injunction as prayed for implementing the
Act's prohibition against their ejectment and demolition of their houses.
WHEREFORE, the appealed decision of the lower court (in Case No. L-24916) is hereby
set aside, and the preliminary injunction heretofore issued on August 17, 1965 is hereby
made permanent. The respondent Secretary of Agrarian Reform as successor agency of
the Land Tenure Administration may now proceed with the due implementation of
Republic Act 3120 in accordance with its terms and provisions. No costs.
Makalintal, C.J., Zaldivar, Castro, Barredo, Makasiar, Antonio, Esguerra, Muñoz Palma
and Aquino, JJ., concur.
Fernandez, J., took no part.
Separate Opinions
FERNANDO, J., concurring:
It is undoubted that the opinion of the Court penned by Justice Teehankee, with his
customary lucidity and thoroughness, is in accordance with our past decisions on the
matter. Reflection on the innovation introduced by the present Constitution on local
government, did, however, give rise to doubts on my part as to the continuing
authoritativeness of Province of Zamboanga del Norte v. City of Zamboanga 1 and Salas
v. Jarencio,2 the two principal opinions relied upon, both of which decisions were
promulgated before the effectivity of the new fundamental law. Hence this separate
opinion setting forth the reasons why I join the rest of my brethren.
1. In the declaration of principles and state policies 3 it is specifically provided: "The State
shall guarantee and promote the autonomy of local government units, especially the
barrio, to ensure their fullest development as self-reliant communities." 4 What was
succinctly expressed therein was made more definite in the article on local
government.5 Its first section reads: "The territorial and political subdivisions of the
Philippines are the provinces, cities, municipalities, and barrios." 6 Then comes this
provision: "The National Assembly shall enact a local government code which may not
thereafter be amended except by a majority vote of all its Members, defining a more
responsive and accountable local government structure with an effective system of
recall, allocating among the different local government units their powers,
responsibilities, and resources, and providing for the qualifications, election and removal,
term, salaries, powers, functions, and duties of local officials, and all other matters
relating to the organization and operation of the local units. However, any change in the
existing form of local government shall not take effect until ratified by a majority of the
votes cast in a plebiscite called for the purpose."7 After which there is this limitation on
the power of local government: "No province, city, municipality, or barrio may be created,
with the criteria established in the local government code, and subject to the approval by
a majority of the votes cast in a plebiscite in the unit or units affected." 8 The autonomy of
cities and municipalities is guaranteed in these words: "(1) Provinces with respect to
component cities and municipalities, and cities and municipalities with respect to
component barrios, shall ensure that the acts of their component units are with the

WEEK 3
scope of their assigned powers and functions. Highly urbanized cities, as determined by
standards established in the local government code, shall be independent of
province."9 Then comes the last section: "Each local government unit shall have the
power to create its own sources of revenue and to levy taxes, subject to such limitations
as may be provided by law." 10
The objective is thus crystal-clear and well-defined. The goal is the fullest autonomy to
local government units consistent with the basic theory of a unitary, not a federal, polity.
It is the hope that thereby they will attain "their fullest development as self-reliant
communities." 11 It is more than just the expression of an aspiration as attest by one of
the articles of the Constitution devoted to such a subject. 12 It was not so under the 1935
charter. On this point, all that appeared therein was: "The President shall ... exercise
general supervision over all local governments as may be provided by
law ... . 13 According to Justice Laurel in Planas v. Gil, 14 "the deliberation of the
Constitutional Convention show that the grant of the supervisory authority to the Chief
Executive in this regard was in the nature of a compromise resulting from the conflict of
views in that body, mainly between the historical view which recognizes the right of local
self-government ... and the legal theory which sanctions the possession by the state of
absolute control over local governments .. . The result was the recognition of the power
of supervision and all its implications and the rejection of what otherwise would be
an imperium in imperio to the detriment of a strong national government." 15 For the
above provision starts with the vesting of control in the President "of all the executive
departments, bureaus, or offices," as distinguished from "general supervision over all
local governments as may be provided by law." 16 The difference in wording is highly
significant. So it was stressed by the then Justice, later Chief Justice, Concepcion
in Pelaez v. Auditor General: 17 "The power of control under this provision implies the
right of the President to interfere in the exercise of such discretion as may be vested by
law in the officers of the executive departments, bureaus, or offices of the national
government, as well as to act in lieu of such officers. This power is denied by the
Constitution to the Executive, insofar as local governments are concerned. With respect
to the latter, the fundamental law permits him to wield no more authority than that of
checking whether said local governments or the officers thereof perform their duties as
provided by statutory enactments. Hence, the President cannot interfere with local
governments, so long as the same or its officers act within the scope of their authority.
He may not enact an ordinance which the municipal council has failed or refused to
pass, even if it had thereby violated a duty imposed thereto by law, although he may see
to it that the corresponding provincial officials take appropriate disciplinary action
therefor. Neither may he vote, set aside or annul an ordinance passed by said council
within the scope of its jurisdiction, no matter how patently unwise it may be. He may not
even suspend an elective official of a regular municipality or take any disciplinary action
against him, except on appeal from a decision of the corresponding provincial board." 18
2. So it was that under the 1935 Constitution, the national government when acting
through the executive had only such general supervisory authority as was provided by
statute. There was no restriction, however, on the legislative body to create or to abolish
local government units. What was more, the powers vested in them could be expanded
or diminished depending on the will of Congress. It could hardly be assumed therefore
that under the previous charter, they could justifiably lay claim to real autonomy. For so
long as the legislation itself took care of delineating the matters that were appropriately
within the scope of their competence, there could be no objection to its validity. No
constitutional problem arose. Things have changed radically. We start with the declared
principle of the State guaranteeing and promoting the autonomy of local government
units. 19 We have likewise noted the earnestness of the framers as to the attainment of
such declared objective as set forth in the specific article 20 on the matter. It is made
obligatory on the National Assembly to enact a local government code. What is more,
unlike the general run of statutes, it cannot be amended except by a majority vote of all
its members. It is made to include "a more responsive and accountable local government
structure with an effective system of recall," with an expressed reference to
"qualifications, election and removal, term, salaries, powers, functions, and duties of
local officials, [as well as] all other matters relating to the organization and operation of
local units." 21 Mention is likewise made of the "powers, responsibilities, and
resources," 22 items that are identified with local autonomy. As if that were not enough,

WEEK 3
the last sentence of this particular provision reads: "However, any change in the existing
form of local government shall not take effect until ratified by a majority of the votes cast
in a plebiscite called for the purpose." 23 To the extent that the last section requires that
the creation, division, merger, abolition or alteration of a boundary of a province, city,
municipality, or barrio, must be in accordance with the criteria established in the local
government code and subject to the approval by a majority of the votes cast in a
plebiscite in such unit or units, the adherence to the basic principle of local self-
government is quite clear.24 Equally significant is the stress on the competence of a
province, city, municipality or barrio "to create its own sources of revenue and to levy
taxes subject to such limitations as may be provided by law." 25 The care and
circumspection with which the framers saw to the enjoyment of real local self-
government not only in terms of administration but also in terms of resources is thus
manifest. Their intent is unmistakable. Unlike the case under the 1935 Constitution,
there is thus a clear manifestation of the presumption now in favor of a local government
unit. It is a well-nigh complete departure from what was. Nor should it be ignored that a
highly urbanized city "shall be independent" not only of the national government but also
of a province. 26 Would it not follow then that under the present dispensation, the
moment property is transferred to it by the national government, its control over the
same should be as extensive and as broad as possible. Considerations of the above
nature gave rise to doubts on my part as to the decisions in the Zamboanga del Norte
and Salas cases still retaining unimpaired their doctrinal force. Would this be a case of
Republic Act No. 3120 being rendered inoperative by virtue of its repugnancy to the
present Constitution? 27
3. Nonetheless, such doubts were set at rest by two considerations. The opinion of
Justice Teehankee makes reference to the ratio decidendi of Salas v. Jarencio as to the
trust character impressed on communal property of a municipal corporation, even if
already titled. As set forth in the opinion: "The Court [in Salas v. Jarencio] reaffirmed the
established general rule that 'regardless of the source of classification of land in the
possession of a municipality, excepting those acquired with its own funds in its private or
corporate capacity, such property is held in trust for the State for the benefit of its
inhabitants, whether it be governmental or proprietary purposes. It holds such lands
subject to the paramount power of the legislature to dispose of the same, for after all it
owes its creation to it as agent for the performance of a part of its public work,
municipality being but a subdivision or instrumentality thereof for purposes of local
administration. Accordingly, the legal situation is the same as if the State itself holds the
property and puts it to a different use' and stressed that 'the property, as has been
previously shown, was not acquired by the City of Manila with its own funds in its private
or proprietary capacity. That it has in its name registered title is not questioned, but this
title should be deemed to be held in trust for the State as the land covered thereby was
part of the territory of the City of Manila granted by the sovereign upon its creation." 28
This is a doctrine which to my mind is unaffected by grant of extensive local autonomy

under the present Constitution. Its basis is the regalian doctrine. It is my view that under
the Constitution, as was the case under the 1935 charter, the holding of a municipal
corporation as a unit of state does not impair the plenary power of the national
government exercising dominical rights to dispose of it in a manner it sees fit, subject to
applicable constitutional limitations as to the citizenship of the grantee. An excerpt
from Lee Hong Hok v. David 29 is relevant: "As there are overtones indicative of
skepticism, if not of outright rejection, of the well-known distinction in public law between
the government authority possessed by the state which is appropriately embraced in the
concept of sovereignty, and its capacity to own or acquire property, it is not inappropriate
to pursue the matter further. The former comes under the heading of imperium and the
latter of dominium. The use of this term is appropriate with reference to lands held by the
state in its proprietary character. In such capacity, it may provide for the exploitation and
use of lands and other natural resources, including their disposition, except as limited by
the Constitution. Dean Pound did speak of the confusion that existed during the
medieval era between such two concepts, but did note the existence of res publicae as a
corollary to dominium. As far as the Philippines was concerned, there was a recognition
by Justice Holmes in Cariño v. Insular Government, a case of Philippine origin, that
'Spain in its earlier decrees embodied the universal feudal theory that all lands were held
from the Crown ... .' That was a manifestation of the concept of jura regalia, which was

WEEK 3
adopted by the present Constitution, ownership however being vested in the state as
such rather than the head thereof." 30
4. Much more compelling is the reliance on the opinion of Justice Teehankee on the
even more fundamental principle of social justice, which was given further stress and a
wider scope in the present Constitution. According to the opinion of the Court: "There as
here, the Court holds that the Acts in question (Republic Act 4118 in Salas and Republic
Act 3120 in the case at bar) were intended to implement the social justice policy of the
Constitution and the government program of land for the landless and that they were not
'intended to expropriate the property involved but merely to confirm its character as
communal land of the State and to make it available for disposition by the National
Government: ... The subdivision of the land and conveyance of the resulting subdivision
lots to the occupants by Congressional authorization does not operate as an exercise of
the power of eminent domain without just compensation in violation of Section 1,
subsection (2), Article III of the Constitution, but simply as a manifestation of its right and
power to deal with state property." 31 It is true of course, that a local government unit, if
expressly authorized by statute, could make use of its property in the same manner. It
does appear, however, that there was no such grant of authority. Moreover, the national
government is not only in a better position to make a reality of the social justice principle
but also is subject to less pressure on the part of the affluent, at least where the
distribution of state property is concerned. It is thus a more efficient instrument than a
province, city or municipality to attain this highly desirable goal. In an economy
essentially based on capitalism, where the power of concentrated wealth cannot be
underestimated, the countervailing force exerted by a strong national government
sensitive to the needs of our countrymen, deeply mired in the morass of poverty, the
disinherited of fortune, can make itself much more effectively felt. If only for that cogent
reason then, I am prepared to ignore whatever doubts or misgivings I did entertain at the
outset.
Hence this concurrence.
Separate Opinions
FERNANDO, J., concurring:
It is undoubted that the opinion of the Court penned by Justice Teehankee, with his
customary lucidity and thoroughness, is in accordance with our past decisions on the
matter. Reflection on the innovation introduced by the present Constitution on local
government, did, however, give rise to doubts on my part as to the continuing
authoritativeness of Province of Zamboanga del Norte v. City of Zamboanga1 and Salas
v. Jarencio,2 the two principal opinions relied upon, both of which decisions were
promulgated before the effectivity of the new fundamental law. Hence this separate
opinion setting forth the reasons why I join the rest of my brethren.
1. In the declaration of principles and state policies3 it is specifically provided: "The State
shall guarantee and promote the autonomy of local government units, especially the
barrio, to ensure their fullest development as self-reliant communities."4 What was
succinctly expressed therein was made more definite in the article on local
government.5 Its first section reads: "The territorial and political subdivisions of the
Philippines are the provinces, cities, municipalities, and barrios."6 Then comes this
provision: "The National Assembly shall enact a local government code which may not
thereafter be amended except by a majority vote of all its Members, defining a more
responsive and accountable local government structure with an effective system of
recall, allocating among the different local government units their powers,
responsibilities, and resources, and providing for the qualifications, election and removal,
term, salaries, powers, functions, and duties of local officials, and all other matters
relating to the organization and operation of the local units. However, any change in the
existing form of local government shall not take effect until ratified by a majority of the
votes cast in a plebiscite called for the purpose."7 After which there is this limitation on
the power of local government: "No province, city, municipality, or barrio may be created,

WEEK 3
with the criteria established in the local government code, and subject to the approval by
a majority of the votes cast in a plebiscite in the unit or units affected."8 The autonomy of
cities and municipalities is guaranteed in these words: "(1) Provinces with respect to
component cities and municipalities, and cities and municipalities with respect to
component barrios, shall ensure that the acts of their component units are with the
scope of their assigned powers and functions. Highly urbanized cities, as determined by
standards established in the local government code, shall be independent of
province."9 Then comes the last section: "Each local government unit shall have the
power to create its own sources of revenue and to levy taxes, subject to such limitations
as may be provided by law." 10
The objective is thus crystal-clear and well-defined. The goal is the fullest autonomy to
local government units consistent with the basic theory of a unitary, not a federal, polity.
It is the hope that thereby they will attain "their fullest development as self-reliant
communities." 11 It is more than just the expression of an aspiration as attest by one of
the articles of the Constitution devoted to such a subject. 12 It was not so under the 1935
charter. On this point, all that appeared therein was: "The President shall ... exercise
general supervision over all local governments as may be provided by
law ... . 13 According to Justice Laurel in Planas v. Gil, 14 "the deliberation of the
Constitutional Convention show that the grant of the supervisory authority to the Chief
Executive in this regard was in the nature of a compromise resulting from the conflict of
views in that body, mainly between the historical view which recognizes the right of local
self-government ... and the legal theory which sanctions the possession by the state of
absolute control over local governments .. . The result was the recognition of the power
of supervision and all its implications and the rejection of what otherwise would be
an imperium in imperio to the detriment of a strong national government." 15 For the
above provision starts with the vesting of control in the President "of all the executive
departments, bureaus, or offices," as distinguished from "general supervision over all
local governments as may be provided by law." 16 The difference in wording is highly
significant. So it was stressed by the then Justice, later Chief Justice, Concepcion
in Pelaez v. Auditor General: 17 "The power of control under this provision implies the
right of the President to interfere in the exercise of such discretion as may be vested by
law in the officers of the executive departments, bureaus, or offices of the national
government, as well as to act in lieu of such officers. This power is denied by the
Constitution to the Executive, insofar as local governments are concerned. With respect
to the latter, the fundamental law permits him to wield no more authority than that of
checking whether said local governments or the officers thereof perform their duties as
provided by statutory enactments. Hence, the President cannot interfere with local
governments, so long as the same or its officers act within the scope of their authority.
He may not enact an ordinance which the municipal council has failed or refused to
pass, even if it had thereby violated a duty imposed thereto by law, although he may see
to it that the corresponding provincial officials take appropriate disciplinary action
therefor. Neither may he vote, set aside or annul an ordinance passed by said council
within the scope of its jurisdiction, no matter how patently unwise it may be. He may not
even suspend an elective official of a regular municipality or take any disciplinary action
against him, except on appeal from a decision of the corresponding provincial board." 18
2. So it was that under the 1935 Constitution, the national government when acting
through the executive had only such general supervisory authority as was provided by
statute. There was no restriction, however, on the legislative body to create or to abolish
local government units. What was more, the powers vested in them could be expanded
or diminished depending on the will of Congress. It could hardly be assumed therefore
that under the previous charter, they could justifiably lay claim to real autonomy. For so
long as the legislation itself took care of delineating the matters that were appropriately
within the scope of their competence, there could be no objection to its validity. No
constitutional problem arose. Things have changed radically. We start with the declared
principle of the State guaranteeing and promoting the autonomy of local government
units. 19 We have likewise noted the earnestness of the framers as to the attainment of
such declared objective as set forth in the specific article 20 on the matter. It is made
obligatory on the National Assembly to enact a local government code. What is more,
unlike the general run of statutes, it cannot be amended except by a majority vote of all
its members. It is made to include "a more responsive and accountable local government

WEEK 3
structure with an effective system of recall," with an expressed reference to
"qualifications, election and removal, term, salaries, powers, functions, and duties of
local officials, [as well as] all other matters relating to the organization and operation of
local units." 21 Mention is likewise made of the "powers, responsibilities, and
resources," 22 items that are identified with local autonomy. As if that were not enough,
the last sentence of this particular provision reads: "However, any change in the existing
form of local government shall not take effect until ratified by a majority of the votes cast
in a plebiscite called for the purpose." 23 To the extent that the last section requires that
the creation, division, merger, abolition or alteration of a boundary of a province, city,
municipality, or barrio, must be in accordance with the criteria established in the local
government code and subject to the approval by a majority of the votes cast in a
plebiscite in such unit or units, the adherence to the basic principle of local self-
government is quite clear.24 Equally significant is the stress on the competence of a
province, city, municipality or barrio "to create its own sources of revenue and to levy
taxes subject to such limitations as may be provided by law." 25 The care and
circumspection with which the framers saw to the enjoyment of real local self-
government not only in terms of administration but also in terms of resources is thus
manifest. Their intent is unmistakable. Unlike the case under the 1935 Constitution,
there is thus a clear manifestation of the presumption now in favor of a local government
unit. It is a well-nigh complete departure from what was. Nor should it be ignored that a
highly urbanized city "shall be independent" not only of the national government but also
of a province. 26 Would it not follow then that under the present dispensation, the
moment property is transferred to it by the national government, its control over the
same should be as extensive and as broad as possible. Considerations of the above
nature gave rise to doubts on my part as to the decisions in the Zamboanga del Norte
and Salas cases still retaining unimpaired their doctrinal force. Would this be a case of
Republic Act No. 3120 being rendered inoperative by virtue of its repugnancy to the
present Constitution? 27
3. Nonetheless, such doubts were set at rest by two considerations. The opinion of
Justice Teehankee makes reference to the ratio decidendi of Salas v. Jarencio as to the
trust character impressed on communal property of a municipal corporation, even if
already titled. As set forth in the opinion: "The Court [in Salas v. Jarencio] reaffirmed the
established general rule that 'regardless of the source of classification of land in the
possession of a municipality, excepting those acquired with its own funds in its private or
corporate capacity, such property is held in trust for the State for the benefit of its
inhabitants, whether it be governmental or proprietary purposes. It holds such lands
subject to the paramount power of the legislature to dispose of the same, for after all it
owes its creation to it as agent for the performance of a part of its public work,
municipality being but a subdivision or instrumentality thereof for purposes of local
administration. Accordingly, the legal situation is the same as if the State itself holds the
property and puts it to a different use' and stressed that 'the property, as has been
previously shown, was not acquired by the City of Manila with its own funds in its private
or proprietary capacity. That it has in its name registered title is not questioned, but this
title should be deemed to be held in trust for the State as the land covered thereby was
part of the territory of the City of Manila granted by the sovereign upon its creation." 28
This is a doctrine which to my mind is unaffected by grant of extensive local autonomy

under the present Constitution. Its basis is the regalian doctrine. It is my view that under
the Constitution, as was the case under the 1935 charter, the holding of a municipal
corporation as a unit of state does not impair the plenary power of the national
government exercising dominical rights to dispose of it in a manner it sees fit, subject to
applicable constitutional limitations as to the citizenship of the grantee. An excerpt
from Lee Hong Hok v. David 29 is relevant: "As there are overtones indicative of
skepticism, if not of outright rejection, of the well-known distinction in public law between
the government authority possessed by the state which is appropriately embraced in the
concept of sovereignty, and its capacity to own or acquire property, it is not inappropriate
to pursue the matter further. The former comes under the heading of imperium and the
latter of dominium. The use of this term is appropriate with reference to lands held by the
state in its proprietary character. In such capacity, it may provide for the exploitation and
use of lands and other natural resources, including their disposition, except as limited by
the Constitution. Dean Pound did speak of the confusion that existed during the

WEEK 3
medieval era between such two concepts, but did note the existence of res publicae as a
corollary to dominium. As far as the Philippines was concerned, there was a recognition
by Justice Holmes in Cariño v. Insular Government, a case of Philippine origin, that
'Spain in its earlier decrees embodied the universal feudal theory that all lands were held
from the Crown ... .' That was a manifestation of the concept of jura regalia, which was
adopted by the present Constitution, ownership however being vested in the state as
such rather than the head thereof." 30
4. Much more compelling is the reliance on the opinion of Justice Teehankee on the
even more fundamental principle of social justice, which was given further stress and a
wider scope in the present Constitution. According to the opinion of the Court: "There as
here, the Court holds that the Acts in question (Republic Act 4118 in Salas and Republic
Act 3120 in the case at bar) were intended to implement the social justice policy of the
Constitution and the government program of land for the landless and that they were not
'intended to expropriate the property involved but merely to confirm its character as
communal land of the State and to make it available for disposition by the National
Government: ... The subdivision of the land and conveyance of the resulting subdivision
lots to the occupants by Congressional authorization does not operate as an exercise of
the power of eminent domain without just compensation in violation of Section 1,
subsection (2), Article III of the Constitution, but simply as a manifestation of its right and
power to deal with state property." 31 It is true of course, that a local government unit, if
expressly authorized by statute, could make use of its property in the same manner. It
does appear, however, that there was no such grant of authority. Moreover, the national
government is not only in a better position to make a reality of the social justice principle
but also is subject to less pressure on the part of the affluent, at least where the
distribution of state property is concerned. It is thus a more efficient instrument than a
province, city or municipality to attain this highly desirable goal. In an economy
essentially based on capitalism, where the power of concentrated wealth cannot be
underestimated, the countervailing force exerted by a strong national government
sensitive to the needs of our countrymen, deeply mired in the morass of poverty, the
disinherited of fortune, can make itself much more effectively felt. If only for that cogent
reason then, I am prepared to ignore whatever doubts or misgivings I did entertain at the
outset.
Hence this concurrence.
Footnotes
1 Substitution of respondents was made as per the Court's resolution of July 26, 1973
granting petitioners' motion for such substitution.
2 Lot 21-B, Block 610 of the cadastral survey of the City of Manila with an area of 10,198
square meters described as located in the San Andres Playground. The Act also makes
the same disposition of another lot known as Lot 62 of Block 573, with which petitioners
are not involved.
3 Third Division then composed of Castro, Capistrano & Villamor, JJ.
4 Docketed as CA-G.R. No. 35453. 5 Docketed as CA-G.R. No. 35269.
6 Section 1 of the Act thus provides: "Section 1. lot 62 of Block 573 and Lot 21-B of
Block 610 of the cadastral survey of the City of Manila, all situated in the District of
Malate, City of Manila, which are reserved as communal property are hereby converted
into disposable or alienable lands of the State, to be placed under the administration and
disposal of the Land Tenure Administration. The Land Tenure Administration shall
subdivide the property into small lots, none of which shall exceed one hundred and
twenty square meters in area, fix the price of each lot and sell the same on installment
basis to the tenants or bona fide occupants thereof and to individuals, in the order
mentioned: Provided, That no down payment shall be required to tenants or bona fide
occupants who cannot afford to pay such down payment: Provided, further, That no
person can purchase more than one lot: Provided, further, That if the tenant or bona fide

WEEK 3
occupant of any given lot is not able to purchase the same, he shall be given a lease
from month to month until such time that he is able to purchase the lot: Provided, further,
That in the event of lease, the rentals which may be charged shall not exceed eight per
cent per annum of the assessed valuation of the property leased: Provided, finally, That
in fixing the price of each lot, the cost of subdivision and survey shall not be included."
7 Prov. of Zamboanga del Norte vs. City of Zamboanga, 22 SCRA 1334 (1968). Cf.
Nawasa cases where the municipality' waterworks system was held patrimonial property
of the municipality that established it, of which it cannot be deprive except by the
exercise of eminent domain with the payment of full compensation as held in Mun. of
Paete vs. Nawasa, 33 SCRA 122 (May 29, 1970) and cases cited; Mun. of Compostela,
Cebu vs. Nawasa, 18 SCRA 988 (1966); and City of Baguio vs. Nawasa, 18 SCRA 988
(1966); and City of Baguio vs. Nawasa, 106 PHIL. 144 (1959).
8 46 SCRA 734 (1972), per Esguerra, J.
11 Reproduced in Art. IV, section 2 of the 1973 Constitution.
12 46 SCRA at pages 751-752, emphasis added.
1 L-24440, March 28, 1968, 22 SCRA 1334.
2 L-29788, August 30, 1972, 46 SCRA 734.
3 Article II of the Constitution.
4 Section 10 of Article II.
5 Article XI.
6 Section 1 of Article XI.
11 Section 10 of Article II of the Constitution.
12 Article XI.
13 Article VII, Section 10, par. 1 of the 1935 Constitution.
14 67 Phil. 62 (1939).
16 Section 10, par. 1 of Article VII of the 1935 Constitution reads in full: "The President
shall have control of all the executive departments, bureaus, or offices, exercise general
supervision over all local governments as may be provided by law, and take care that all
laws be faithfully executed."
17 L-23825, December 24, 1965, 15 SCRA 569.
19 Cf. Section 10 of Article II.
20 Cf. Article XI.
21 Cf. Section 2 of Article XI.

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27 Cf. People v. Linsangan. 62 Phil. 646 (1935); De los Santos v. Mallare, 87 Phil. 289
(1950) ; Martinez v. Morfe, L-34022, March 24, 1972, 44 SCRA 22.
28 Opinion of Justice Teehankee, 9.
29 L-30389, December 27, 1972, 48 SCRA 372.

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12. GUILATCO VS CITY OF DAGUPAN, 171 SCRA 382, 1989
G.R. No. 61516 March 21, 1989
FLORENTINA A. GUILATCO, petitioner,
vs.
CITY OF DAGUPAN, and the HONORABLE COURT OF APPEALS, respondents.
Nolan R. Evangelista for petitioner.The City Legal Officer for respondents.
SARMIENTO, J.: SECOND DIVISION
In a civil action 1 for recovery of damages filed by the petitioner Florentina A. Guilatco,

the following judgment was rendered against the respondent City of Dagupan:
xxx
(1) Ordering defendant City of Dagupan to pay plaintiff actual damages in the amount of
P 15,924 (namely P8,054.00 as hospital, medical and other expenses [Exhs. H to H-60],
P 7,420.00 as lost income for one (1) year [Exh. F] and P 450.00 as bonus). P
150,000.00 as moral damages, P 50,000.00 as exemplary damages, and P 3,000.00 as
attorney's fees, and litigation expenses, plus costs and to appropriate through its
Sangguniang Panglunsod (City Council) said amounts for said purpose;
(2) Dismissing plaintiffs complaint as against defendant City Engr. Alfredo G. Tangco;
and
(3) Dismissing the counterclaims of defendant City of Dagupan and defendant City Engr.
Alfredo G. Tangco, for lack of merit. 2
The facts found by the trial court are as follows: 3
It would appear from the evidences that on July 25, 1978, herein plaintiff, a Court
Interpreter of Branch III, CFI--Dagupan City, while she was about to board a motorized
tricycle at a sidewalk located at Perez Blvd. (a National Road, under the control and
supervision of the City of Dagupan) accidentally fell into a manhole located on said
sidewalk, thereby causing her right leg to be fractured. As a result thereof, she had to be
hospitalized, operated on, confined, at first at the Pangasinan Provincial Hospital, from
July 25 to August 3, 1978 (or for a period of 16 days). She also incurred hospitalization,
medication and other expenses to the tune of P 8,053.65 (Exh. H to H-60) or a total of P
10,000.00 in all, as other receipts were either lost or misplaced; during the period of her
confinement in said two hospitals, plaintiff suffered severe or excruciating pain not only
on her right leg which was fractured but also on all parts of her body; the pain has
persisted even after her discharge from the Medical City General Hospital on October 9,
1978, to the present. Despite her discharge from the Hospital plaintiff is presently still
wearing crutches and the Court has actually observed that she has difficulty in
locomotion. From the time of the mishap on July 25, 1978 up to the present, plaintiff has
not yet reported for duty as court interpreter, as she has difficulty of locomotion in going
up the stairs of her office, located near the city hall in Dagupan City. She earns at least P
720.00 a month consisting of her monthly salary and other means of income, but since
July 25, 1978 up to the present she has been deprived of said income as she has
already consumed her accrued leaves in the government service. She has lost several
pounds as a result of the accident and she is no longer her former jovial self, she has
been unable to perform her religious, social, and other activities which she used to do
prior to the incident.
Dr. Norberto Felix and Dr. Dominado Manzano of the Provincial Hospital, as well as Dr.
Antonio Sison of the Medical City General Hospital in Mandaluyong Rizal (Exh. I; see
also Exhs. F, G, G-1 to G-19) have confirmed beyond shadow of any doubt the extent of
the fracture and injuries sustained by the plaintiff as a result of the mishap. On the other
hand, Patrolman Claveria, De Asis and Cerezo corroborated the testimony of the plaintiff

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regarding the mishap and they have confirmed the existence of the manhole (Exhs. A, B,
C and sub-exhibits) on the sidewalk along Perez Blvd., at the time of the incident on July
25, 1978 which was partially covered by a concrete flower pot by leaving gaping hole
about 2 ft. long by 1 1/2 feet wide or 42 cms. wide by 75 cms. long by 150 cms. deep
(see Exhs. D and D-1).
Defendant Alfredo Tangco, City Engineer of Dagupan City and admittedly ex-officio
Highway Engineer, City Engineer of the Public Works and Building Official for Dagupan
City, admitted the existence of said manhole along the sidewalk in Perez Blvd.,
admittedly a National Road in front of the Luzon Colleges. He also admitted that said
manhole (there are at least 11 in all in Perez Blvd.) is owned by the National
Government and the sidewalk on which they are found along Perez Blvd. are also
owned by the National Government. But as City Engineer of Dagupan City, he
supervises the maintenance of said manholes or drainage system and sees to it that
they are properly covered, and the job is specifically done by his subordinates, Mr.
Santiago de Vera (Maintenance Foreman) and Engr. Ernesto Solermo also a
maintenance Engineer. In his answer defendant Tangco expressly admitted in par. 7-1
thereof, that in his capacity as ex-officio Highway Engineer for Dagupan City he
exercises supervision and control over National roads, including the Perez Blvd. where
the incident happened.
On appeal by the respondent City of Dagupan, the appellate court 4 reversed the lower
court findings on the ground that no evidence was presented by the plaintiff- appellee to
prove that the City of Dagupan had "control or supervision" over Perez Boulevard. 5
The city contends that Perez Boulevard, where the fatal drainage hole is located, is a
national road that is not under the control or supervision of the City of Dagupan. Hence,
no liability should attach to the city. It submits that it is actually the Ministry of Public
Highways that has control or supervision through the Highway Engineer which, by mere
coincidence, is held concurrently by the same person who is also the City Engineer of
Dagupan.
After examination of the findings and conclusions of the trial court and those of the
appellate court, as well as the arguments presented by the parties, we agree with those
of the trial court and of the petitioner. Hence, we grant the petition.
In this review on certiorari, we have simplified the errors assigned by the petitioner to a
single issue: whether or not control or supervision over a national road by the City of
Dagupan exists, in effect binding the city to answer for damages in accordance with
article 2189 of the Civil Code.
The liability of public corporations for damages arising from injuries suffered by
pedestrians from the defective condition of roads is expressed in the Civil Code as
follows:
Article 2189. Provinces, cities and municipalities shall be liable for damages for the
death of, or injuries suffered by, any person by reason of the defective condition of
roads, streets, bridges, public buildings, and other public works under their control or
supervision.
It is not even necessary for the defective road or street to belong to the province, city or
municipality for liability to attach. The article only requires that either control or
supervision is exercised over the defective road or street. 6
In the case at bar, this control or supervision is provided for in the charter of Dagupan
and is exercised through the City Engineer who has the following duties:
Sec. 22. The City Engineer--His powers, duties and compensation-There shall be a city
engineer, who shall be in charge of the department of Engineering and Public Works. He
shall receive a salary of not exceeding three thousand pesos per annum. He shall have
the following duties:

WEEK 3
xxx
(j) He shall have the care and custody of the public system of waterworks and sewers,
and all sources of water supply, and shall control, maintain and regulate the use of the
same, in accordance with the ordinance relating thereto; shall inspect and regulate the
use of all private systems for supplying water to the city and its inhabitants, and all
private sewers, and their connection with the public sewer system.
xxx
The same charter of Dagupan also provides that the laying out, construction and
improvement of streets, avenues and alleys and sidewalks, and regulation of the use
thereof, may be legislated by the Municipal Board . 7 Thus the charter clearly indicates
that the city indeed has supervision and control over the sidewalk where the open
drainage hole is located.
The express provision in the charter holding the city not liable for damages or injuries
sustained by persons or property due to the failure of any city officer to enforce the
provisions of the charter, can not be used to exempt the city, as in the case at bar.8
The charter only lays down general rules regulating the liability of the city. On the other
hand article 2189 applies in particular to the liability arising from "defective streets, public
buildings and other public works." 9
The City Engineer, Mr. Alfredo G. Tangco, admits that he exercises control or
supervision over the said road. But the city can not be excused from liability by the
argument that the duty of the City Engineer to supervise or control the said provincial
road belongs more to his functions as an ex-officio Highway Engineer of the Ministry of
Public Highway than as a city officer. This is because while he is entitled to an
honorarium from the Ministry of Public Highways, his salary from the city government
substantially exceeds the honorarium.
We do not agree.
Alfredo G. Tangco "(i)n his official capacity as City Engineer of Dagupan, as Ex- Officio
Highway Engineer, as Ex-Officio City Engineer of the Bureau of Public Works, and, last
but not the least, as Building Official for Dagupan City, receives the following monthly
compensation: P 1,810.66 from Dagupan City; P 200.00 from the Ministry of Public
Highways; P 100.00 from the Bureau of Public Works and P 500.00 by virtue of P.D.
1096, respectively." 10 This function of supervision over streets, public buildings, and
other public works pertaining to the City Engineer is coursed through a Maintenance
Foreman and a Maintenance Engineer.11 Although these last two officials are
employees of the National Government, they are detailed with the City of Dagupan and
hence receive instruction and supervision from the city through the City Engineer.
There is, therefore, no doubt that the City Engineer exercises control or supervision over
the public works in question. Hence, the liability of the city to the petitioner under article
2198 of the Civil Code is clear.
Be all that as it may, the actual damages awarded to the petitioner in the amount of P
10,000.00 should be reduced to the proven expenses of P 8,053.65 only. The trial court
should not have rounded off the amount. In determining actual damages, the court can
not rely on "speculation, conjecture or guess work" as to the amount. Without the actual
proof of loss, the award of actual damages becomes erroneous. 12
On the other hand, moral damages may be awarded even without proof of pecuniary
loss, inasmuch as the determination of the amount is discretionary on the
court.13 Though incapable of pecuniary estimation, moral damages are in the nature of
an award to compensate the claimant for actual injury suffered but which for some
reason can not be proven. However, in awarding moral damages, the following should
be taken into consideration:

WEEK 3
(1) First, the proximate cause of the injury must be the claimee's acts.14
(2) Second, there must be compensatory or actual damages as satisfactory proof of the
factual basis for damages.15
(3) Third, the award of moral damages must be predicated on any of the cases
enumerated in the Civil Code. 16
In the case at bar, the physical suffering and mental anguish suffered by the petitioner
were proven. Witnesses from the petitioner's place of work testified to the degeneration
in her disposition-from being jovial to depressed. She refrained from attending social and
civic activities.17
Nevertheless the award of moral damages at P 150,000.00 is excessive. Her handicap

was not permanent and disabled her only during her treatment which lasted for one year.
Though evidence of moral loss and anguish existed to warrant the award of
damages,18 the moderating hand of the law is called for. The Court has time and again
called attention to the reprehensible propensity of trial judges to award damages without
basis,19 resulting in exhorbitant amounts.20
Although the assessment of the amount is better left to the discretion of the trial
court 21 under preceding jurisprudence, the amount of moral damages should be
reduced to P 20,000.00.
As for the award of exemplary damages, the trial court correctly pointed out the basis:
To serve as an example for the public good, it is high time that the Court, through this
case, should serve warning to the city or cities concerned to be more conscious of their
duty and responsibility to their constituents, especially when they are engaged in
construction work or when there are manholes on their sidewalks or streets which are
uncovered, to immediately cover the same, in order to minimize or prevent accidents to
the poor pedestrians.22
Too often in the zeal to put up "public impact" projects such as beautification drives, the
end is more important than the manner in which the work is carried out. Because of this
obsession for showing off, such trivial details as misplaced flower pots betray the
careless execution of the projects, causing public inconvenience and inviting accidents.
Pending appeal by the respondent City of Dagupan from the trial court to the appellate
court, the petitioner was able to secure an order for garnishment of the funds of the City
deposited with the Philippine National Bank, from the then presiding judge, Hon.
Willelmo Fortun. This order for garnishment was revoked subsequently by the
succeeding presiding judge, Hon. Romeo D. Magat, and became the basis for the
petitioner's motion for reconsideration which was also denied. 23
We rule that the execution of the judgment of the trial court pending appeal was
premature. We do not find any good reason to justify the issuance of an order of
execution even before the expiration of the time to appeal .24
WHEREFORE, the petition is GRANTED. The assailed decision and resolution of

the respondent Court of Appeals are hereby REVERSED and SET ASIDE and the
decision of the trial court, dated March 12, 1979 and amended on March 13, 1979,
is hereby REINSTATED with the indicated modifications as regards the amounts
awarded:
(1) Ordering the defendant City of Dagupan to pay the plaintiff actual damages in
the amount of P 15,924 (namely P 8,054.00 as hospital, medical and other
expenses; P 7,420.00 as lost income for one (1) year and P 450.00 as bonus); P
20,000.00 as moral damages and P 10,000.00 as exemplary damages.
The attorney's fees of P 3,000.00 remain the same.

WEEK 3
SO ORDERED.
Melencio-Herrera, (Chaiperson), Paras, Padilla and Regalado, JJ., concur.
Footnotes
1 Florentina A. Guilatco v. City of Dagupan and Alfredo G. Tangco, RTC (Lingayen,

Pangasinan), Civil Case No. 15463, March 12, 1979.
4 Florentina A. Guilatco v. City of Dagupan, CA-G.R. No. 65470-R, May 31, 1982; De la
Fuente, B.S. J., ponente; German, Milagros A. and Cuevas, Serafin R., JJ., concurring.
6 City of Manila v. Teotico, No. L-23052, January 29, 1968, 22 SCRA 267.
7 RA. 170, sec. 15(y). 8 RA. 170, sec. 5.
9 Jimenez v. City of Manila, No. 71049, May 29, 1987, 150 SCRA 510.
12 Medelo v. Gorospe, G.R. 41970, March 25, 1988.
13 Civil Code, Article 2216.
14 Ledesma v. Court of Appeals, No. 54598, April 15, 1988.
15 San Miguel Brewery, Inc. v. Magno, No. L-21879, September 29, 1967, 21 SCRA
300.
16 Bagumbayan Corp. v. Intermediate Appellate Court, No. 66274, September 30, 1984,
132 SCRA 444.
18 Guita v. Court of Appeals, No. 60409, November 11, 1985, 139 SCRA 576.
19 Felisilda v. Villanueva, No. 60372, October 29, 1985, 139 SCRA431.
20 R & B Surety and Insurance Co., Inc. v. Intermediate Appellate Court, No. 64515,
June 22, 1984, 129 SCRA 736.
21 Pleno v. Court of Appeals, G.R. 56505, May 9, 1988.
22 Rollo, 25 (Record on Appeal, pp. 55-56). See also De Leon and Gonzales De Leon v.
Hon. Court of Appeals, G.R. No. L-31931, August 31, 1988.
24 Rules of Court, Rule 39, sec. 2.

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13. COQUILLA VS COMELEC, GR 151914, JULY 31, 2002
G.R. No. 151914 July 31, 2002
TEODULO M. COQUILLA, petitioner,
vs.
THE HON. COMMISSION ON ELECTIONS and MR. NEIL M. ALVAREZ, respondents.
MENDOZA, J.: EN BANC
This is a petition for certiorari to set aside the resolution, 1 dated July 19, 2001, of the
Second Division of the Commission on Elections (COMELEC), ordering the cancellation
of the certificate of candidacy of petitioner Teodulo M. Coquilla for the position of mayor
of Oras, Eastern Samar in the May 14, 2001 elections and the order, dated January 30,
2002, of the COMELEC en banc denying petitioner’s motion for reconsideration.
The facts are as follows:
Petitioner Coquilla was born on February 17, 1938 of Filipino parents in Oras, Eastern
Samar. He grew up and resided there until 1965, when he joined the United States
Navy. He was subsequently naturalized as a U.S. citizen. 2 From 1970 to 1973, petitioner
thrice visited the Philippines while on leave from the U.S. Navy. 3 Otherwise, even after
his retirement from the U.S. Navy in 1985, he remained in the United States.
On October 15, 1998, petitioner came to the Philippines and took out a residence
certificate, although he continued making several trips to the United States, the last of
which took place on July 6, 2000 and lasted until August 5, 2000.4 Subsequently,
petitioner applied for repatriation under R.A. No. 81715 to the Special Committee on
Naturalization. His application was approved on November 7, 2000, and, on November
10, 2000, he took his oath as a citizen of the Philippines. Petitioner was issued
Certificate of Repatriation No. 000737 on November 10, 2000 and Bureau of Immigration
Identification Certificate No. 115123 on November 13, 2000.
On November 21, 2000, petitioner applied for registration as a voter of Butnga, Oras,
Eastern Samar. His application was approved by the Election Registration Board on
January 12, 2001.6 On February 27, 2001, he filed his certificate of candidacy stating
therein that he had been a resident of Oras, Eastern Samar for "two (2) years."7
On March 5, 2001, respondent Neil M. Alvarez, who was the incumbent mayor of Oras
and who was running for reelection, sought the cancellation of petitioner’s certificate of
candidacy on the ground that the latter had made a material misrepresentation in his
certificate of candidacy by stating that he had been a resident of Oras for two years
when in truth he had resided therein for only about six months since November 10,
2000, when he took his oath as a citizen of the Philippines.

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The COMELEC was unable to render judgment on the case before the elections on May
14, 2001. Meanwhile, petitioner was voted for and received the highest number of votes
(6,131) against private respondent’s 5,752 votes, or a margin of 379 votes. On May 17,
2001, petitioner was proclaimed mayor of Oras by the Municipal Board of
Canvassers.8 He subsequently took his oath of office.
On July 19, 2001, the Second Division of the COMELEC granted private respondent’s
petition and ordered the cancellation of petitioner’s certificate of candidacy on the basis
of the following findings:
Respondent’s frequent or regular trips to the Philippines and stay in Oras, Eastern
Samar after his retirement from the U.S. Navy in 1985 cannot be considered as a waiver
of his status as a permanent resident or immigrant . . . of the U.S.A. prior to November
10, 2000 as would qualify him to acquire the status of residency for purposes of
compliance with the one-year residency requirement of Section 39(a) of the Local
Government Code of 1991 in relation to Sections 65 and 68 of the Omnibus Election
Code. The one (1) year residency requirement contemplates of the actual residence of a
Filipino citizen in the constituency where he seeks to be elected.
All things considered, the number of years he claimed to have resided or stayed in Oras,
Eastern Samar since 1985 as an American citizen and permanent resident of the U.S.A.
before November 10, 2000 when he reacquired his Philippine citizenship by [repatriation]
cannot be added to his actual residence thereat after November 10, 2000 until May 14,
2001 to cure his deficiency in days, months, and year to allow or render him eligible to
run for an elective office in the Philippines. Under such circumstances, by whatever
formula of computation used, respondent is short of the one-year residence requirement
before the May 14, 2001 elections.9
Petitioner filed a motion for reconsideration, but his motion was denied by the
COMELEC en banc on January 30, 2002. Hence this petition.
I.
Two questions must first be resolved before considering the merits of this case: (a)
whether the 30-day period for appealing the resolution of the COMELEC was suspended
by the filing of a motion for reconsideration by petitioner and (b) whether the COMELEC
retained jurisdiction to decide this case notwithstanding the proclamation of petitioner.
A. With respect to the first question, private respondent contends that the petition in
this case should be dismissed because it was filed late; that the COMELEC en banc had
denied petitioner’s motion for reconsideration for being pro forma; and that, pursuant to
Rule 19, §4 of the COMELEC Rules of Procedure, the said motion did not suspend the
running of the 30-day period for filing this petition. He points out that petitioner received
a copy of the resolution, dated July 19, 2001, of the COMELEC’s Second Division on
July 28, 2001, so that he had only until August 27, 2001 within which to file this petition.
Since the petition in this case was filed on February 11, 2002, the same should be
considered as having been filed late and should be dismissed.
Private respondent’s contention has no merit.
Rule 19 of the COMELEC Rules of Procedure provides in pertinent parts:
Sec. 2. Period for Filing Motions for Reconsideration. – A motion to reconsider a
decision, resolution, order, or ruling of a Division shall be filed within five days from the
promulgation thereof. Such motion, if not pro-forma, suspends the execution for
implementation of the decision, resolution, order, or ruling.
Sec. 4. Effect of Motion for Reconsideration on Period to Appeal. – A motion to

reconsider a decision, resolution, order, or ruling, when not pro-forma, suspends the
running of the period to elevate the matter to the Supreme Court.

WEEK 3
The five-day period for filing a motion for reconsideration under Rule 19, §2 should be
counted from the receipt of the decision, resolution, order, or ruling of the COMELEC
Division.10 In this case, petitioner received a copy of the resolution of July 19, 2001 of the
COMELEC’s Second Division on July 28, 2001. Five days later, on August 2, 2001, he
filed his motion for reconsideration. On February 6, 2002, he received a copy of the
order, dated January 30, 2002, of the COMELEC en banc denying his motion for
reconsideration. Five days later, on February 11, 2002, he filed this petition for certiorari.
There is no question, therefore, that petitioner’s motion for reconsideration of the
resolution of the COMELEC Second Division, as well as his petition for certiorari to set
aside of the order of the COMELEC en banc, was filed within the period provided for in
Rule 19, §2 of the COMELEC Rules of Procedure and in Art. IX(A), §7 of the
Constitution.
It is contended, however, that petitioner’s motion for reconsideration before the

COMELEC en banc did not suspend the running of the period for filing this petition
because the motion was pro forma and, consequently, this petition should have been
filed on or before August 27, 2001. It was actually filed, however, only on February 11,
2002. Private respondent cites the finding of the COMELEC en banc that —
An incisive examination of the allegations in the Motion for Reconsideration shows that
the same [are] a mere rehash of his averments contained in his Verified
Answer and Memorandum. Neither did respondent raise new matters that would
sufficiently warrant a reversal of the assailed resolution of the Second Division. This
makes the said Motion pro forma.11
We do not think this contention is correct. The motion for reconsideration was not pro
forma and its filing did suspend the period for filing the petition for certiorari in this case.
The mere reiteration in a motion for reconsideration of the issues raised by the parties
and passed upon by the court does not make a motion pro forma; otherwise, the
movant’s remedy would not be a reconsideration of the decision but a new trial or some
other remedy.12 But, as we have held in another case:13
Among the ends to which a motion for reconsideration is addressed, one is precisely to
convince the court that its ruling is erroneous and improper, contrary to the law or the
evidence; and in doing so, the movant has to dwell of necessity upon the issues passed
upon by the court. If a motion for reconsideration may not discuss these issues, the
consequence would be that after a decision is rendered, the losing party would be
confined to filing only motions for reopening and new trial.
Indeed, in the cases where a motion for reconsideration was held to be pro forma, the
motion was so held because (1) it was a second motion for reconsideration, 14 or (2) it did
not comply with the rule that the motion must specify the findings and conclusions
alleged to be contrary to law or not supported by the evidence, 15 or (3) it failed to
substantiate the alleged errors,15 or (4) it merely alleged that the decision in question
was contrary to law, 17 or (5) the adverse party was not given notice thereof. 18 The 16-
page motion for reconsideration filed by petitioner in the COMELEC en banc suffers from
none of the foregoing defects, and it was error for the COMELEC en banc to rule that
petitioner’s motion for reconsideration was pro forma because the allegations raised
therein are a mere "rehash" of his earlier pleadings or did not raise "new matters."
Hence, the filing of the motion suspended the running of the 30-day period to file the
petition in this case, which, as earlier shown, was done within the reglementary period
provided by law.
B. As stated before, the COMELEC failed to resolve private respondent’s petition for
cancellation of petitioner’s certificate of candidacy before the elections on May 14, 2001.
In the meantime, the votes were canvassed and petitioner was proclaimed elected with a
margin of 379 votes over private respondent. Did the COMELEC thereby lose authority
to act on the petition filed by private respondent?
R.A. No. 6646 provides:

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SECTION 6. Effect of Disqualification Case. – Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him shall
not be counted. If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of votes
in such election, the Court or Commission shall continue with the trial and hearing of the
action, inquiry, or protest and, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong. (Emphasis added)
SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. —

The procedure hereinabove provided shall apply to petitions to deny due course to or
cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881.
The rule then is that candidates who are disqualified by final judgment before the
election shall not be voted for and the votes cast for them shall not be counted. But
those against whom no final judgment of disqualification had been rendered may be
voted for and proclaimed, unless, on motion of the complainant, the COMELEC
suspends their proclamation because the grounds for their disqualification or
cancellation of their certificates of candidacy are strong. Meanwhile, the proceedings for
disqualification of candidates or for the cancellation or denial of certificates of candidacy,
which have been begun before the elections, should continue even after such elections
and proclamation of the winners. In Abella v. COMELEC19 and Salcedo II v.
COMELEC,20 the candidates whose certificates of candidacy were the subject of
petitions for cancellation were voted for and, having received the highest number of
votes, were duly proclaimed winners. This Court, in the first case, affirmed and, in the
second, reversed the decisions of the COMELEC rendered after the proclamation of
candidates, not on the ground that the latter had been divested of jurisdiction upon the
candidates’ proclamation but on the merits.
II.
On the merits, the question is whether petitioner had been a resident of Oras, Eastern
Samar at least one (1) year before the elections held on May 14, 2001 as he
represented in his certificate of candidacy. We find that he had not.
First, §39(a) of the Local Government Code (R.A No. 7160) provides:
Qualifications. - (a) An elective local official must be a citizen of the Philippines; a

registered voter in the barangay, municipality, city, or province or, in the case of a
member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang
bayan, the district where he intends to be elected; a resident therein for at least one (1)
year immediately preceding the day of the election; and able to read and write Filipino or
any other local language or dialect. (Emphasis added)
The term "residence" is to be understood not in its common acceptation as referring to

"dwelling" or "habitation,"21 but rather to "domicile" or legal residence,22 that is, "the place
where a party actually or constructively has his permanent home, where he, no matter
where he may be found at any given time, eventually intends to return and remain
(animus manendi)."23 A domicile of origin is acquired by every person at birth. It is
usually the place where the child’s parents reside and continues until the same is
abandoned by acquisition of new domicile (domicile of choice).24
In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen
after enlisting in the U.S. Navy in 1965. From then on and until November 10, 2000,
when he reacquired Philippine citizenship, petitioner was an alien without any right to
reside in the Philippines save as our immigration laws may have allowed him to stay as
a visitor or as a resident alien.
Indeed, residence in the United States is a requirement for naturalization as a U.S.

citizen. Title 8, §1427(a) of the United States Code provides:

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Requirements of naturalization. – Residence
(a) No person, except as otherwise provided in this subchapter, shall be naturalized

unless such applicant, (1) immediately preceding the date of filing his application for
naturalization has resided continuously, after being lawfully admitted for permanent
residence, within the United States for at least five years and during the five years
immediately preceding the date of filing his petition has been physically present therein
for periods totaling at least half of that time, and who has resided within the State or
within the district of the Service in the United States in which the applicant filed the
application for at least three months, (2) has resided continuously within the United
States from the date of the application up to the time of admission to citizenship, and (3)
during all the period referred to in this subsection has been and still is a person of good
moral character, attached to the principles of the Constitution of the United States, and
well disposed to the good order and happiness of the United States. (Emphasis added)
In Caasi v. Court of Appeals,25 this Court ruled that immigration to the United States by
virtue of a "greencard," which entitles one to reside permanently in that country,
constitutes abandonment of domicile in the Philippines. With more reason then does
naturalization in a foreign country result in an abandonment of domicile in the
Philippines.
Nor can petitioner contend that he was "compelled to adopt American citizenship" only
by reason of his service in the U.S. armed forces. 26 It is noteworthy that petitioner was
repatriated not under R.A. No. 2630, which applies to the repatriation of those who lost
their Philippine citizenship by accepting commission in the Armed Forces of the United
States, but under R.A. No. 8171, which, as earlier mentioned, provides for the
repatriation of, among others, natural-born Filipinos who lost their citizenship on account
of political or economic necessity. In any event, the fact is that, by having been
naturalized abroad, he lost his Philippine citizenship and with it his residence in the
Philippines. Until his reacquisition of Philippine citizenship on November 10, 2000,
petitioner did not reacquire his legal residence in this country.
Second, it is not true, as petitioner contends, that he reestablished residence in this

country in 1998 when he came back to prepare for the mayoralty elections of Oras by
securing a Community Tax Certificate in that year and by "constantly declaring" to his
townmates of his intention to seek repatriation and run for mayor in the May 14, 2001
elections.27 The status of being an alien and a non-resident can be waived either
separately, when one acquires the status of a resident alien before acquiring Philippine
citizenship, or at the same time when one acquires Philippine citizenship. As an alien, an
individual may obtain an immigrant visa under §1328 of the Philippine Immigration Act of
1948 and an Immigrant Certificate of Residence (ICR) 29 and thus waive his status as a
non-resident. On the other hand, he may acquire Philippine citizenship by naturalization
under C.A. No. 473, as amended, or, if he is a former Philippine national, he may
reacquire Philippine citizenship by repatriation or by an act of Congress, 30 in which case
he waives not only his status as an alien but also his status as a non-resident alien.
In the case at bar, the only evidence of petitioner’s status when he entered the country
on October 15, 1998, December 20, 1998, October 16, 1999, and June 23, 2000 is the
statement "Philippine Immigration [–] Balikbayan" in his 1998-2008 U.S. passport. As for
his entry on August 5, 2000, the stamp bore the added inscription "good for one year
stay."31 Under §2 of R.A. No. 6768 (An Act Instituting a Balikbayan Program), the
term balikbayan includes a former Filipino citizen who had been naturalized in a foreign
country and comes or returns to the Philippines and, if so, he is entitled, among others,
to a "visa-free entry to the Philippines for a period of one (1) year" (§3(c)). It would
appear then that when petitioner entered the country on the dates in question, he did so
as a visa-free balikbayan visitor whose stay as such was valid for one year only. Hence,
petitioner can only be held to have waived his status as an alien and as a non-resident
only on November 10, 2000 upon taking his oath as a citizen of the Philippines under
R.A. No. 8171.32 He lacked the requisite residency to qualify him for the mayorship of
Oras, Eastern, Samar.

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Petitioner invokes the ruling in Frivaldo v. Commission on Elections33 in support of his
contention that the residency requirement in §39(a) of the Local Government Code
includes the residency of one who is not a citizen of the Philippines. Residency,
however, was not an issue in that case and this Court did not make any ruling on the
issue now at bar. The question in Frivaldo was whether petitioner, who took his oath of
repatriation on the same day that his term as governor of Sorsogon began on June 30,
1995, complied with the citizenship requirement under §39(a). It was held that he had,
because citizenship may be possessed even on the day the candidate assumes office.
But in the case of residency, as already noted, §39(a) of the Local Government Code
requires that the candidate must have been a resident of the municipality "for at least
one (1) year immediately preceding the day of the election."
Nor can petitioner invoke this Court’s ruling in Bengzon III v. House of Representatives
Electoral Tribunal.34 What the Court held in that case was that, upon repatriation, a
former natural-born Filipino is deemed to have recovered his original status as a natural-
born citizen.
Third, petitioner nonetheless says that his registration as a voter of Butnga, Oras,

Eastern Samar in January 2001 is conclusive of his residency as a candidate because
§117 of the Omnibus Election Code requires that a voter must have resided in the
Philippines for at least one year and in the city or municipality wherein he proposes to
vote for at least six months immediately preceding the election. As held in Nuval v.
Guray,35 however, registration as a voter does not bar the filing of a subsequent case
questioning a candidate’s lack of residency.
Petitioner’s invocation of the liberal interpretation of election laws cannot avail him any.
As held in Aquino v. Commission on Elections:36
A democratic government is necessarily a government of laws. In a republican

government those laws are themselves ordained by the people. Through their
representatives, they dictate the qualifications necessary for service in government
positions. And as petitioner clearly lacks one of the essential qualifications for running for
membership in the House of Representatives, not even the will of a majority or plurality
of the voters of the Second District of Makati City would substitute for a requirement
mandated by the fundamental law itself.
Fourth, petitioner was not denied due process because the COMELEC failed to act on
his motion to be allowed to present evidence. Under §5(d), in relation to §7, of R.A. No.
6646 (Electoral Reforms Law of 1987), proceedings for denial or cancellation of a
certificate of candidacy are summary in nature. The holding of a formal hearing is thus
not de rigeur. In any event, petitioner cannot claim denial of the right to be heard since
he filed a Verified Answer, a Memorandum and a Manifestation, all dated March 19,
2001, before the COMELEC in which he submitted documents relied by him in this
petition, which, contrary to petitioner’s claim, are complete and intact in the records.
III.
The statement in petitioner’s certificate of candidacy that he had been a resident of

Oras, Eastern Samar for "two years" at the time he filed such certificate is not true. The
question is whether the COMELEC was justified in ordering the cancellation of his
certificate of candidacy for this reason. We hold that it was. Petitioner made a false
representation of a material fact in his certificate of candidacy, thus rendering such
certificate liable to cancellation. The Omnibus Election Code provides:
SEC. 74. Contents of certificate of candidacy. – The certificate of candidacy shall state

that the person filing it is announcing his candidacy for the office stated therein and that
he is eligible for said office; if for Member of the Batasang Pambansa, the province,
including its component cities, highly urbanized city or district or sector which he seeks
to represent; the political party to which he belongs; civil status; his date of birth;
residence; his post office address for all election purposes; his profession or occupation;
that he will support and defend the Constitution of the Philippines and will maintain true

WEEK 3
faith and allegiance thereto; that he will obey the laws, legal orders, and decrees
promulgated by the duly constituted authorities; that he is not a permanent resident or
immigrant to a foreign country; that the obligation imposed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that the facts stated in
the certificate of candidacy are true to the best of his knowledge.
SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed
by any person exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false. The petition may be filed at any
time not later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later than fifteen days
before the election.
Indeed, it has been held that a candidate’s statement in her certificate of candidacy for
the position of governor of Leyte that she was a resident of Kananga, Leyte when this
was not so37 or that the candidate was a "natural-born" Filipino when in fact he had
become an Australian citizen38 constitutes a ground for the cancellation of a certificate of
candidacy. On the other hand, we held in Salcedo II v. COMELEC39 that a candidate
who used her husband’s family name even though their marriage was void was not guilty
of misrepresentation concerning a material fact. In the case at bar, what is involved is a
false statement concerning a candidate’s qualification for an office for which he filed the
certificate of candidacy. This is a misrepresentation of a material fact justifying the
cancellation of petitioner’s certificate of candidacy. The cancellation of petitioner’s
certificate of candidacy in this case is thus fully justified.
WHEREFORE, the petition is DISMISSED and the resolution of the Second Division of
the Commission on Elections, dated July 19, 2001, and the order, dated January 30,
2002 of the Commission on Elections en banc are AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Ynares-
Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur.
Footnotes
Per Presiding Commissioner Ralph C. Lantion and concurred in by Commissioners

1
Mehol K. Sadain and Florentino A. Tuazon, Jr.
4
Petitioner’s U.S. passport for 1998-2008 shows the following dates of arrival in the
Philippines and dates of departure for the United States: arrival - October 15, 1998,
departure - November 3, 1998; arrival - December 20, 1998 (with no record of
corresponding departure); arrival - October 16, 1999, departure - November 1, 1999;
arrival - June 23, 2000, departure - July 6, 2000; arrival - August 5, 2000 (Records, pp.
227-228).
5
This law, entitled AN ACT PROVIDING FOR THE REPATRIATION OF FILIPINO
WOMEN WHO HAVE LOST THEIR PHILIPPINE CITIZENSHIP BY MARRIAGE TO
ALIENS AND NATURAL-BORN FILIPINOS, applies to former natural-born Filipinos who
have lost their Philippine citizenship on account of economic or political necessity. It
would appear that petitioner was repatriated under this law on the ground that he lost his
Philippine citizenship on account of economic necessity.
10
Bulaong v. COMELEC, 220 SCRA 745 (1993).
12
Siy v. Court of Appeals, 138 SCRA 536 (1985); Continental Cement Corporation v.
Court of Appeals, 184 SCRA 728 (1990).
13
Guerra Enterprises Company, Inc. v. Court of First Instance of Lanao del Sur, 32
SCRA 314, 317 (1970).

WEEK 3
Manila Trading v. Enriquez, 1 SCRA 1056 (1961); City of Cebu v. Mendoza, 62 SCRA
14
440 (1975); Debuque v. Climaco, 99 SCRA 353 (1980); Garcia v. Echiverri, 132 SCRA
631 (1984); Commissioner of Internal Revenue v. Island Garment Manufacturing
Corporation, 153 SCRA 665 (1987); Vda. de Espina v. Abaya, 196 SCRA 312 (1991).
A similar rule is found in Rule 19, §3 of the COMELEC Rules of Procedure.

15
16
Villarica v. Court of Appeals, 57 SCRA 24 (1974).
Jessena v. Hervas, 83 SCRA 799 (1978); Marikina Valley Development Corporation v.

17
Flojo, 251 SCRA 87 (1995); Nieto v. De los Angeles, 109 SCRA 229 (1981).
18
Sembrano v. Ramirez, 166 SCRA 30 (1988); Pojas v. Gozo-Dadole, 192 SCRA 575
(1990); Bank of the Philippine Islands v. Far East Molasses Corporation, 198 SCRA 689
(1991).
19
201 SCRA 253 (1991).
312 SCRA 447 (1999).

20
21
Uytengsu v. Republic, 95 Phil. 890, 894 (1954).
22
Nuval v. Guray, 52 Phil. 645 (1928); Gallego v. Verra, 73 Phil. 453 (1941); Romualdez
v. RTC, Br. 7, Tacloban City, 226 SCRA 408 (1993).
Aquino v. COMELEC, 248 SCRA 400, 420 (1995).

23
24
25 Am. Jur. 2d, §11.
191 SCRA 229 (1990).

25
28
This provision states:
"Under the conditions set forth in this Act, there may be admitted in the Philippines
immigrants, termed "quota immigrants" not in excess of fifty (50) of any one nationality or
without nationality for any one calendar year, except that the following immigrants,
termed "nonquota immigrants," may be admitted without regard to such numerical
limitations.
The corresponding Philippine Consular representative abroad shall investigate and

certify the eligibility of a quota immigrant previous to his admission into the Philippines.
Qualified and desirable aliens who are in the Philippines under temporary stay may be
admitted within the quota, subject to the provisions of the last paragraph of section 9 of
this Act.
(a) The wife or the husband or the unmarried child under twenty-one years of age of a
Philippine citizen, if accompanying or following to join such citizen;
(b) A child of alien parents born during the temporary visit abroad of the mother, the
mother having been previously lawfully admitted into the Philippine for permanent
residence, if the child is accompanying or coming to join a parent and applies for
admission within five years from the date of its birth;
(c) A child born subsequent to the issuance of the immigration visa of the accompanying
parent, the visa not having expired;
(d) A woman who was citizen of the Philippines and who lost her citizenship because of
her marriage to an alien or by reason of the loss of Philippine citizenship by her
husband, and her unmarried child under twenty-one years of age, if accompanying or
following to join her;

WEEK 3
(e) A person previously lawfully admitted into the Philippines for permanent residence,
who is returning from a temporary visit abroad to an unrelinquished residence in the
Philippines, (As amended by Sec. 5, Rep. Act No. 503.)
(f) The wife or the husband or the unmarried child under twenty-one years of age, of an
alien lawfully admitted into the Philippines for permanent residence prior to the date on
which this Act becomes effective and who is resident therein, if such wife, husband, or
child applies for admission within a period of two years following the date on which this
Act becomes effective;
(g) A natural born citizen of the Philippines, who has been naturalized in a foreign
country, and is returning to the Philippines for permanent residence, including the
spouse and minor children, shall be considered a non-quota immigrant for purposes of
entering the Philippines (As amended by Rep. Act No. 4376, approved June 19, 1965)."
29
See R. Ledesma, An Outline of Philippine Immigration and Citizenship Laws 135
(1999).
C.A. No. 63, §2.

30
31
Records, pp. 227-228.
32
The COMELEC considered November 10, 2000 as the date of petitioner’s repatriation.
Section 2 of R.A. No. 8171 provides, however, "Repatriation shall be effected by taking
the necessary oath of allegiance to the Republic of the Philippines and registration in the
proper civil registry and in the Bureau of Immigration. The Bureau of Immigration shall
thereupon cancel the pertinent alien certificate of registration and issue the certificate of
identification as Filipino citizen to the repatriated citizen."
257 SCRA 727 (1996).

33
34
G.R. No. 142840, May 7, 2001.
54 Phil. 645 (1928).

35
36
248 SCRA 400, 429 (1995).
37
Abella v. Larazabal, 180 SCRA 509 (1989); Abella v. COMELEC, 201 SCRA 253
(1991).
Labo, Jr. v. COMELEC, 211 SCRA 297 (1992).

38
39
312 SCRA 447 (1999).
14. GREGO VS COMELEC, GR 125955, JUNE 19, 1997
G.R. No. 125955 June 19, 1997

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WILMER GREGO, petitioner,
vs.
COMMISSION ON ELECTIONS and HUMBERTO BASCO, respondents.
ROMERO, J.:
The instant special civil action for certiorari and prohibition impugns the resolution of the
Commission on Elections (COMELEC) en banc in SPA No. 95-212 dated July 31, 1996,
dismissing petitioner's motion for reconsideration of an earlier resolution rendered by the
COMELEC's First Division on October 6, 1995, which also dismissed the petition for
disqualification 1 filed by petitioner Wilmer Grego against private respondent Humberto
Basco.
The essential and undisputed factual antecedents of the case are as follows:
On October 31, 1981, Basco was removed from his position as Deputy Sheriff by no less
than this Court upon a finding of serious misconduct in an administrative complaint
lodged by a certain Nena Tordesillas. The Court held:
WHEREFORE, FINDING THE RESPONDENT DEPUTY SHERIFF HUMBERTO

BASCO OF THE CITY COURT OF MANILA GUILTY OF SERIOUS MISCONDUCT IN
OFFICE FOR THE SECOND TIME, HE IS HEREBY DISMISSED FROM THE SERVICE
WITH FORFEITURE OF ALL RETIREMENT BENEFITS AND WITH PREJUDICE TO
REINSTATEMENT TO ANY POSITION IN THE NATIONAL OR LOCAL
GOVERNMENT, INCLUDING ITS AGENCIES AND INSTRUMENTALITIES, OR
GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS.
xxx xxx xxx 2
Subsequently, Basco ran as a candidate for Councilor in the Second District of the City
of Manila during the January 18, 1988, local elections. He won and, accordingly,
assumed office.
After his term, Basco sought re-election in the May 11, 1992 synchronized national
elections. Again, he succeeded in his bid and he was elected as one of the six (6) City
Councilors. However, his victory this time did not remain unchallenged. In the midst of
his successful re-election, he found himself besieged by lawsuits of his opponents in the
polls who wanted to dislodge him from his position.
One such case was a petition for quo warranto 3 filed before the COMELEC by Cenon
Ronquillo, another candidate for councilor in the same district, who alleged Basco's
ineligibility to be elected councilor on the basis of the Tordesillas ruling. At about the
same time, two more cases were also commenced by Honorio Lopez II in the Office of
the Ombudsman and in the Department of Interior and Local Government. 4 All these
challenges were, however, dismissed, thus, paving the way for Basco's continued stay in
office.
Despite the odds previously encountered, Basco remained undaunted and ran again for
councilor in the May 8, 1995, local elections seeking a third and final term. Once again,
he beat the odds by emerging sixth in a battle for six councilor seats. As in the past,
however, his right to office was again contested. On May 13, 1995, petitioner Grego,
claiming to be a registered voter of Precinct No. 966, District II, City of Manila, filed with
the COMELEC a petition for disqualification, praying for Basco's disqualification, for the
suspension of his proclamation, and for the declaration of Romualdo S. Maranan as the
sixth duly elected Councilor of Manila's Second District.
On the same day, the Chairman of the Manila City Board of Canvassers (BOC) was duly
furnished with a copy of the petition. The other members of the BOC learned about this
petition only two days later.

WEEK 3
The COMELEC conducted a hearing of the case on May 14, 1995, where it ordered the
parties to submit simultaneously their respective memoranda.
Before the parties could comply with this directive, however, the Manila City BOC
proclaimed Basco on May 17, 1995, as a duly elected councilor for the Second District of
Manila, placing sixth among several candidates who vied for the seats. 5 Basco
immediately took his oath of office before the Honorable Ma. Ruby Bithao-Camarista,
Presiding Judge, Metropolitan Trial Court, Branch I, Manila.
In view of such proclamation, petitioner lost no time in filing an Urgent Motion seeking to
annul what he considered to be an illegal and hasty proclamation made on May 17,
1995, by the Manila City BOC. He reiterated Basco's disqualification and prayed anew
that candidate Romualdo S. Maranan be declared the winner. As expected, Basco
countered said motion by filing his Urgent Opposition to: Urgent Motion (with
Reservation to Submit Answer and/or Motion to Dismiss Against Instant Petition for
Disqualification with Temporary Restraining Order).
On June 5, 1995, Basco filed his Motion to Dismiss Serving As Answer pursuant to the
reservation he made earlier, summarizing his contentions and praying as follows:
Respondent thus now submits that the petitioner is not entitled to relief for the following
reasons:
1. The respondent cannot be disqualified on the ground of Section 40 paragraph b of the

Local Government Code because the Tordesillas decision is barred by laches,
prescription, res judicata, lis pendens, bar by prior judgment, law of the case and stare
decisis;
2. Section 4[0] par. B of the Local Government Code may not be validly applied to
persons who were dismissed prior to its effectivity. To do so would make it ex post facto,
bill of attainder, and retroactive legislation which impairs vested rights. It is also a class
legislation and unconstitutional on the account.
3. Respondent had already been proclaimed. And the petition being a preproclamation
contest under the Marquez v. Comelec Ruling, supra, it should be dismissed by virtue of
said pronouncement.
4. Respondent's three-time election as candidate for councilor constitutes implied pardon

by the people of previous misconduct (Aguinaldo v. Comelec G.R. 105128; Rice v. State
161 SCRA 401; Montgomery v. Newell 40 SW 2d 4181; People v. Bashaw 130 P. 2nd
237, etc.).
5. As petition to nullify certificate of candidacy, the instant case has prescribed; it was
premature as an election protest and it was not brought by a proper party in interest as
such protest.:
PRAYER
WHEREFORE it is respectfully prayed that the instant case be dismissed on instant

motion to dismiss the prayer for restraining order denied (sic). If this Honorable Office is
not minded to dismiss, it is respectfully prayed that instant motion be considered as
respondent's answer. All other reliefs and remedies just and proper in the premises are
likewise hereby prayed for.
After the parties' respective memoranda had been filed, the COMELEC's First Division
resolved to dismiss the petition for disqualification on October 6, 1995, ruling that "the
administrative penalty imposed by the Supreme Court on respondent Basco on October
31, 1981 was wiped away and condoned by the electorate which elected him" and that
on account of Basco's proclamation on May 17, 1995, as the sixth duly elected councilor
of the Second District of Manila, "the petition would no longer be viable." 6

WEEK 3
Petitioner's motion for reconsideration of said resolution was later denied by the
COMELEC en banc in its assailed resolution promulgated on July 31, 1996. 7 Hence,
this petition.
Petitioner argues that Basco should be disqualified from running far any elective position
since he had been "removed from office as a result of an administrative case" pursuant
to Section 40 (b) of Republic Act No. 7160, otherwise known as the Local Government
Code (the Code), which took effect on January 1, 1992. 8
Petitioner wants the Court to likewise resolve the following issues, namely:
1. Whether or not Section 40 (b) of Republic Act No. 7160 applies retroactively to those
removed from office before it took effect on January 1, 1992;
2. Whether or not private respondent's election in 1988, 1992 and in 1995 as City
Councilor of Manila wiped away and condoned the administrative penalty against him;
3. Whether or not private respondent's proclamation as sixth winning candidate on May

17, 1995, while the disqualification case was still pending consideration by COMELEC,
is void ab initio; and
4. Whether or not Romualdo S. Maranan, who placed seventh among the candidates for
City Councilor of Manila, may be declared a winner pursuant to Section 6 of Republic
Act No. 6646.
While we do not necessarily agree with the conclusions and reasons of the COMELEC
in the assailed resolution, nonetheless, we find no grave abuse of discretion on its part in
dismissing the petition for disqualification. The instant petition must, therefore, fail.
We shall discuss the issues raised by petitioner in seriatim.
I. Does Section 40 (b) of Republic Act No. 7160 apply retroactively to those removed
from office before it took effect on January 1, 1992?
Section 40 (b) of the Local Government Code under which petitioner anchors Basco's
alleged disqualification to run as City Councilor states:
Sec. 40. Disqualifications. — The following persons are disqualified from running for any
elective local position:
xxx xxx xxx
(b) Those removed from office as a result of an administrative case;
xxx xxx xxx
In this regard, petitioner submits that although the Code took effect only on January 1,
1992, Section 40 (b) must nonetheless be given retroactive effect and applied to Basco's
dismissal from office which took place in 1981. It is stressed that the provision of the law
as worded does not mention or even qualify the date of removal from office of the
candidate in order for disqualification thereunder to attach. Hence, petitioner impresses
upon the Court that as long as a candidate was once removed from office due to an
administrative case, regardless of whether it took place during or prior to the effectivity of
the Code, the disqualification applies. 9 To him, this interpretation is made more evident
by the manner in which the provisions of Section 40 are couched. Since the past tense is
used in enumerating the grounds for disqualification, petitioner strongly contends that
the provision must have also referred to removal from office occurring prior to the
effectivity of the Code. 10

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We do not, however, subscribe to petitioner's view. Our refusal to give retroactive
application to the provision of Section 40 (b) is already a settled issue and there exist no
compelling reasons for us to depart therefrom. Thus, in Aguinaldo
11
v. COMELEC, reiterated in the more recent cases of Reyes
v. COMELEC 12 and Salalima v. Guingona, Jr., 13 we ruled, thus:
The COMELEC applied Section 40 (b) of the Local Government Code (Republic Act
7160) which provides:
Sec. 40. The following persons are disqualified from running for any elective local
positions:
xxx xxx xxx
(b) Those removed from office as a result of an administrative case.
Republic Act 7160 took effect only on January 1, 1992.
The rule is:
xxx xxx xxx
. . . Well-settled is the principle that while the Legislature has the power to pass
retroactive laws which do not impair the obligation of contracts, or affect injuriously
vested rights, it is equally true that statutes are not to be construed as intended to have
a retroactive effect so as to affect pending proceedings, unless such intent is expressly
declared or clearly and necessarily implied from the language of the enactment. . . .
(Jones v. Summers, 105 Cal. App. 51, 286 Pac. 1093; U.S. v. Whyel 28 (2d) 30; Espiritu
v. Cipriano, 55 SCRA 533 [1974], cited in Nilo v. Court of Appeals, 128 SCRA 519
[1974]. See also Puzon v. Abellera, 169 SCRA 789 [1989]; Al-Amanah Islamic
Investment Bank of the Philippines v. Civil Service Commission, et al., G.R. No. 100599,
April 8, 1992).
There is no provision in the statute which would clearly indicate that the same operates
retroactively.
It, therefore, follows that [Section] 40 (b) of the Local Government Code is not applicable
to the present case. (Emphasis supplied).
That the provision of the Code in question does not qualify the date of a candidate's
removal from office and that it is couched in the past tense should not deter us from
applying the law prospectively. The basic tenet in legal hermeneutics that laws operate
only prospectively and not retroactively provides the qualification sought by petitioner. A
statute, despite the generality in its language, must not be so construed as to overreach
acts, events or matters which transpired before its passage. Lex prospicit, non respicit.
The law looks forward, not backward. 14
II. Did private respondent's election to office as City Councilor of Manila in the 1988,
1992 and 1995 elections wipe away and condone the administrative penalty against him,
thus restoring his eligibility for public office?
Petitioner maintains the negative. He quotes the earlier ruling of the Court in Frivaldo
v. COMELEC 15 to the effect that a candidate's disqualification cannot be erased by the
electorate alone through the instrumentality of the ballot. Thus:
. . . (T)he qualifications prescribed for elective office cannot be erased by the electorate
alone. The will of the people as expressed through the ballot cannot cure the vice of
ineligibility, especially if they mistakenly believed, as in this case, that the candidate was
qualified. . . .

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At first glance, there seems to be a prima facie semblance of merit to petitioner's
argument. However, the issue of whether or not Basco's triple election to office cured his
alleged ineligibility is actually beside the point because the argument proceeds on the
assumption that he was in the first place disqualified when he ran in the three previous
elections. This assumption, of course, is untenable considering that Basco was NOT
subject to any disqualification at all under Section 40 (b) of the Local Government Code
which, as we said earlier, applies only to those removed from office on or after January
1, 1992. In view of the irrelevance of the issue posed by petitioner, there is no more
reason for the Court to still dwell on the matter at length.
Anent Basco's alleged circumvention of the prohibition in Tordesillas against

reinstatement to any position in the national or local government, including its agencies
and instrumentalities, as well as government-owned or controlled corporations, we are of
the view that petitioner's contention is baseless. Neither does petitioner's argument that
the term "any position" is broad enough to cover without distinction both appointive and
local positions merit any consideration.
Contrary to petitioner's assertion, the Tordesillas decision did not bar Basco from

running for any elective position. As can be gleaned from the decretal portion of the said
decision, the Court couched the prohibition in this wise:
. . . AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE

NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND
INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED
CORPORATIONS.
In this regard, particular attention is directed to the use of the term "reinstatement."
Under the former Civil Service Decree, 16 the law applicable at the time Basco, a public
officer, was administratively dismissed from office, the term "reinstatement" had a
technical meaning, referring only to an appointive position. Thus:
Art. VIII. PERSONNEL POLICIES AND STANDARDS.
Sec. 24. Personnel Actions. —
xxx xxx xxx
(d) Reinstatement. — Any person who has been permanently APPOINTED to a position

in the career service and who has, through no delinquency or misconduct, been
separated therefrom, may be reinstated to a position in the same level for which he is
qualified.
xxx xxx xxx
(Emphasis supplied).
The Rules on Personnel Actions and Policies issued by the Civil Service Commission on
November 10, 1975, 17 provides a clearer definition. It reads:
RULE VI. OTHER PERSONNEL ACTIONS
Sec. 7. Reinstatement is the REAPPOINTMENT of a person who was previously

separated from the service through no delinquency or misconduct on his part from a
position in the career service to which he was permanently appointed, to a position for
which he is qualified. (Emphasis supplied).
In light of these definitions, there is, therefore, no basis for holding that Basco is likewise
barred from running for an elective position inasmuch as what is contemplated by the
prohibition in Tordesillas is reinstatement to an appointive position.

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III. Is private respondent's proclamation as sixth winning candidate on May 17, 1995,
while the disqualification case was still pending consideration by COMELEC, void ab
initio?
To support its position, petitioner argues that Basco violated the provisions of Section
20, paragraph (i) of Republic Act No. 7166, Section 6 of Republic Act No. 6646, as well
as our ruling in the cases of Duremdes v. COMELEC, 18 Benito
v. COMELEC and Aguam v. COMELEC.
19 20
We are not convinced. The provisions and cases cited are all misplaced and quoted out
of context. For the sake of clarity, let us tackle each one by one.
Section 20, paragraph (i) of Rep. Act 7166 reads:
Sec. 20. Procedure in Disposition of Contested Election Returns. —
xxx xxx xxx
(i) The board of canvassers shall not proclaim any candidate as winner unless
authorized by the Commission after the latter has ruled on the objections brought to it on
appeal by the losing party. Any proclamation made in violation hereof shall be void ab
initio, unless the contested returns will not adversely affect the results of the election.
xxx xxx xxx
The inapplicability of the abovementioned provision to the present case is very much
patent on its face considering that the same refers only to a void proclamation in relation
to contested returns and NOT to contested qualifications of a candidate.
Next, petitioner cites Section 6 of Rep. Act 6646 which states:
Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason, a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of votes
in such election, the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong. (Emphasis supplied).
This provision, however, does not support petitioner's contention that the COMELEC, or
more properly speaking, the Manila City BOC, should have suspended the proclamation.
The use of the word "may" indicates that the suspension of a proclamation is
merely directory and permissive in nature and operates to confer discretion. 21 What is
merely made mandatory, according to the provision itself, is the continuation of the trial
and hearing of the action, inquiry or protest. Thus, in view of this discretion granted to
the COMELEC, the question of whether or not evidence of guilt is so strong as to
warrant suspension of proclamation must be left for its own determination and the Court
cannot interfere therewith and substitute its own judgment unless such discretion has
been exercised whimsically and capriciously. 22 The COMELEC, as an administrative
agency and a specialized constitutional body charged with the enforcement and
administration of all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall, 23 has more than enough expertise in its field
that its findings or conclusions are generally respected and even given finality. 24 The
COMELEC has not found any ground to suspend the proclamation and the records
likewise fail to show any so as to warrant a different conclusion from this Court. Hence,
there is no ample justification to hold that the COMELEC gravely abused its discretion.
It is to be noted that Section 5, Rule 25 of the COMELEC Rules of Procedure 25 states

that:

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Sec. 5. Effect of petition if unresolved before completion of canvass. — . . . (H)is
proclamation shall be suspended notwithstanding the fact that he received the winning
number of votes in such election.
However, being merely an implementing rule, the same must not override, but instead
remain consistent with and in harmony with the law it seeks to apply and implement.
Administrative rules and regulations are intended to carry out, neither to supplant nor to
modify, the law. 26 Thus, in Miners Association of the Philippines, Inc. v. Factoran,
Jr., 27 the Court ruled that:
We reiterate the principle that the power of administrative officials to promulgate rules
and regulations in the implementation of a statute is necessarily limited only to carrying
into effect what is provided in the legislative enactment. The principle was enunciated as
early as 1908 in the case of United States v. Barrias. The scope of the exercise of such
rule-making power was clearly expressed in the case of United States v. Tupasi Molina,
decided in 1914, thus: "Of course, the regulations adopted under legislative authority by
a particular department must be in harmony with the provisions of the law, and for the
sole purpose of carrying into effect its general provisions. By such regulations, of course,
the law itself can not be extended. So long, however, as the regulations relate solely to
carrying into effect the provision of the law, they are valid.
Recently, the case of People v. Maceren gave a brief delineation of the scope of said
power of administrative officials:
Administrative regulations adopted under legislative authority by a particular department

must be in harmony with the provisions of the law, and should be for the sole purpose of
carrying into effect its general provisions. By such regulations, of course, the law itself
cannot be extended (U.S. v. Tupasi Molina, supra). An administrative agency cannot
amend an act of Congress (Santos v. Estenzo, 109 Phil. 419, 422; Teoxon vs. Members
of the Board of Administrators, L-25619, June 30, 1970, 33 SCRA 585; Manuel vs.
General Auditing Office, L-28952, December 29, 1971, 42 SCRA 660; Deluao v.
Casteel, L-21906, August 29, 1969, 29 SCRA 350).
The rule-making power must be confined to details for regulating the mode or
proceeding to carry into effect the law as it has been enacted. The power cannot be
extended to amending or expanding the statutory requirements or to embrace matters
not covered by the statute. Rules that subvert the statute cannot be sanctioned
(University of Santo Tomas v. Board of Tax Appeals, 93 Phil. 376, 382, citing 12 C.J.
845-46. As to invalid regulations, see Collector of Internal Revenue v. Villaflor, 69 Phil.
319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del Mar v. Phil. Veterans Administration, L-
27299, June 27, 1973, 51 SCRA 340, 349).
xxx xxx xxx
. . . The rule or regulations should be within the scope of the statutory authority granted
by the legislature to the administrative agency (Davis, Administrative Law, p. 194, 197,
cited in Victorias Milling Co., Inc. v. Social Security Commission, 114 Phil. 555, 558).
In case of discrepancy between the basic law and a rule or regulation issued to
implement said law, the basic law prevails because said rule or regulations cannot go
beyond the terms and provisions of the basic law (People v. Lim, 108 Phil. 1091).
Since Section 6 of Rep. Act 6646, the law which Section 5 of Rule 25 of the COMELEC
Rules of Procedure seeks to implement, employed the word "may," it is, therefore,
improper and highly irregular for the COMELEC to have used instead the word "shall" in
its rules.
Moreover, there is no reason why the Manila City BOC should not have proclaimed
Basco as the sixth winning City Councilor. Absent any determination of irregularity in the
election returns, as well as an order enjoining the canvassing and proclamation of the
winner, it is a mandatory and ministerial duty of the Board of Canvassers concerned to

WEEK 3
count the votes based on such returns and declare the result. This has been the rule as
early as in the case of Dizon v. Provincial Board of Canvassers of Laguna 28 where we
clarified the nature of the functions of the Board of Canvassers, viz.:
The simple purpose and duty of the canvassing board is to ascertain and declare the
apparent result of the voting. All other questions are to be tried before the court or other
tribunal for contesting elections or in quo warranto proceedings. (9 R.C.L., p. 1110)
To the same effect is the following quotation:
. . . Where there is no question as to the genuineness of the returns or that all the
returns are before them, the powers and duties of canvassers are limited to the
mechanical or mathematical function of ascertaining and declaring the apparent result of
the election by adding or compiling the votes cast for each candidate as shown on the
face of the returns before them, and then declaring or certifying the result so
ascertained. (20 C.J., 200-201) [Emphasis supplied]
Finally, the cases of Duremdes, Benito and Aguam, supra, cited by petitioner are all
irrelevant and inapplicable to the factual circumstances at bar and serve no other
purpose than to muddle the real issue. These three cases do not in any manner refer to
void proclamations resulting from the mere pendency of a disqualification case.
In Duremdes, the proclamation was deemed void ab initio because the same was made
contrary to the provisions of the Omnibus Election Code regarding the suspension of
proclamation in cases of contested election returns.
In Benito, the proclamation of petitioner Benito was rendered ineffective due to the
Board of Canvassers' violation of its ministerial duty to proclaim the candidate receiving
the highest number of votes and pave the way to succession in office. In said case, the
candidate receiving the highest number of votes for the mayoralty position died but the
Board of Canvassers, instead of proclaiming the deceased candidate winner, declared
Benito, a mere second-placer, the mayor.
Lastly, in Aguam, the nullification of the proclamation proceeded from the fact that it was
based only on advanced copies of election returns which, under the law then prevailing,
could not have been a proper and legal basis for proclamation.
With no precedent clearly in point, petitioner's arguments must, therefore, be rejected.
IV. May Romualdo S. Maranan, a seventh placer, be legally declared a winning

candidate?
Obviously, he may not be declared a winner. In the first place, Basco was a duly
qualified candidate pursuant to our disquisition above. Furthermore, he clearly received
the winning number of votes which put him in sixth place. Thus, petitioner's emphatic
reference to Labo v. COMELEC, 29 where we laid down a possible exception to the rule
that a second placer may not be declared the winning candidate, finds no application in
this case. The exception is predicated on the concurrence of two assumptions, namely:
(1) the one who obtained the highest number of votes is disqualified; and (2) the
electorate is fully aware in fact and in law of a candidate's disqualification so as to bring
such awareness within the realm of notoriety but would nonetheless cast their votes in
favor of the ineligible candidate. Both assumptions, however, are absent in this case.
Petitioner's allegation that Basco was well-known to have been disqualified in the small
community where he ran as a candidate is purely speculative and conjectural,
unsupported as it is by any convincing facts of record to show notoriety of his alleged
disqualification. 30
In sum, we see the dismissal of the petition for disqualification as not having been
attended by grave abuse of discretion. There is then no more legal impediment for
private respondent's continuance in office as City Councilor for the Second District of
Manila.

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WHEREFORE, the instant petition for certiorari and prohibition is hereby
DISMISSED for lack of merit. The assailed resolution of respondent Commission
on Elections (COMELEC) in SPA 95-212 dated July 31, 1996 is hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Melo, Puno, Vitug, Mendoza, Hermosisima,
Jr., Panganiban and Torres, Jr., JJ., concur.
Padilla, Bellosillo, Kapunan and Francisco, JJ., are on leave.
Footnotes
1 "In re: Petition to Disqualify Candidate for Councilor, Humberto Basco, Second District,
City of Manila, in the May 8, 1995 Local Elections," Annex, "A," Rollo, pp. 40-44.
2 Adm. Matter No. P-2363, 108 SCRA 551 (1981).
5 Annex "B," Rollo, p. 46. The names of the winning candidates and their corresponding
votes are as follows:
(1) NESTOR C. PONCE — 48,088

(2) MARLON M. LACSON — 41,611
(3) FLAVIANO F. CONCEPCION, JR. — 39,548
(4) FRANCISCO B. VARONA, JR. — 37,635
(5) ABELARDO C. VICEO — 37,183
(6) HUMBERTO B. BASCO — 34,358
8 Both parties made errors in their respective pleadings as to the date of effectivity of
Rep. Act 7160.
11 G.R. Nos. 105128-30, promulgated on June 9, 1992.
12 254 SCRA 514 (1996).
13 257 SCRA 55 (1996).
14 R.E. AGPALO, STATUTORY CONSTRUCTION 254 (2nd ed., 1990), citing Laceste

v. Santos, 56 Phil. 472. Cf . also Article 4, Civil Code.
15 174 SCRA 245 (1989).
16 Presidential Decree No. 807, issued on October 6, 1975. This law has been
superseded by Subtitle A, Title I, Book V of Executive Order No. 292, otherwise known
as the Administrative Code of 1987, which took effect on November 29, 1989, or two
years after its publication in the Official Gazette.
17 Implementing Rules of P.D. 807.
18 178 SCRA 746 (1989).
19 235 SCRA 436 (1994).
20 23 SCRA 883 (1968).
21 R.E. AGPALO, STATUTORY CONSTRUCTION 239 (2nd ed., 1990).
22 Provident Tree Farms, Inc. v. Batario, Jr., 231 SCRA 463 (1994).

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23 Sec. 2, Sub-title C, Art. IX, 1987 Constitution.
24 Cf . Ting v. Court of Appeals, 237 SCRA 797 (1994); Sesbreno v. Ala, 208 SCRA 359
(1992); San Miguel Corp. v. Javate, Jr., 205 SCRA 469 (1992).
25 Published in the Official Gazette on June 27, 1988, Vol. 84, No. 26.
26 Commissioner of Internal Revenue v. Court of Appeals, 240 SCRA 368 (1995).
27 240 SCRA 100 (1995).
28 52 Phil. 47.
29 211 SCRA 456 (1992).
30 Frivaldo v. COMELEC, 257 SCRA 727 (1996).
15. PAMIL VS TELERO, 86 SCRA 413, 1978
G.R. No. L-34854 November 20, 1978
FORTUNATO R. PAMIL, petitioner-appellant,
vs.
HONORABLE VICTORINO C. TELERON, as Judge of the Court of First Instance of
Bohol, Branch III, and REV. FR. MARGARITO R. GONZAGA, respondents-appellees.

WEEK 3
Urbano H. Lagunay for petitioner.Cristeto O. Cimagala for respondents.
FERNANDO, J.: EN BANC
The novel question raised in this certiorari proceeding concerns the eligibility of an

ecclesiastic to an elective municipal position. Private respondent, Father Margarito R.
Gonzaga, was, in 1971, elected to the position of municipal mayor of Alburquerque,
Bohol. 1 Therefore, he was duly proclaimed. A suit for quo warranto was then filed by
petitioner, himself an aspirant for the office, for his disqualification 2 based on this
Administrative Code provision: "In no case shall there be elected or appointed to a
municipal office ecclesiastics, soldiers in active service, persons receiving salaries or
compensation from provincial or national funds, or contractors for public works of the
municipality." 3 The suit did not prosper, respondent Judge sustaining the right of Father
Gonzaga to the office of municipal mayor. He ruled that such statutory ineligibility was
impliedly repealed by the Election Code of 1971. The matter was then elevated to this
Tribunal by petitioner. It is his contention that there was no such implied repeal, that it is
still in full force and effect. Thus was the specific question raised.
There is no clear-cut answer from this Tribunal. After a lengthy and protracted
deliberation, the Court is divided on the issue. Seven members of the Court are of the
view that the judgment should be affirmed as the challenged provision is no longer
operative either because it was superseded by the 1935 Constitution or repealed.
Outside of the writer of this opinion, six other Justices are of this mind They are Justices
Teehankee, Muñoz Palma Concepcion Jr., Santos, Fernandez, and Guerrero. For them,
the overriding principle of the supremacy of the Constitution or, at the very least, the
repeal of such provision bars a reversal. 4 The remaining five members of this Court,
Chief Justice Castro, Justices Barredo, Makasiar, Antonio, and Aquino, on the other
hand, hold the position that such a prohibition against an ecclesiastic running for elective
office is not tainted with any constitutional infirmity.
The vote is thus indecisive. While five members of the Court constitute a minority, the
vote of the remaining seven does not suffice to render the challenged provision
ineffective. Section 2175 of the Revised Administrative Code, as far as ecclesiastics are
concerned, must be accorded respect. The presumption of validity calls for its
application. Under the circumstances, certiorari lies. That is the conclusion arrived at by
the writer of this opinion, joined by Justice Concepcion Jr., Santos, Fernandez, and
Guerrero. They have no choice then but to vote for the reversal of the lower court
decision and declare ineligible respondent Father Margarito R. Gonzaga for the office of
municipal mayor. With the aforesaid five other members, led by the Chief Justice,
entertaining no doubt as to his lack of eligibility, this petition for certiorari must be
granted.
Except for the dispositive part announcing the judgment of the Court, the remainder of
this opinion sets forth the reasons why there are constitutional objections to the
continuing force and effectivity of Section 2175 as far as ecclesiastics are concerned.
1. The Revised Administrative Code was enacted in 1917. In the 1935 Constitution, as it
is now under the present Charter, it is explicitly declared: "No religious test shall be
required for the exercise of civil or political rights." 5 The principle of the paramount
character of the fundamental law 6 thus comes into play. There are previous rulings to
that effect. 6 The ban imposed by the Administrative Code cannot survive. So the writer
of this opinion would hold.
2. This is to conform to this provision of the 1935 Charter: "All laws of the Philippine
Islands shall continue in force until the inauguration of the Commonwealth of the
Philippines; thereafter, such laws shall remain operative, unless inconsistent with this
Constitution, until amended, altered, modified, or repealed by the Congress of the
Philippines, and all references in such laws to the government or officials of the
Philippines shall be construed, in so far as applicable, to refer to the Government and
corresponding officials under this Constitution." 7 It was first applied in People v.
Linsangan, 8 decided in December, 1935, barely a month after that Constitution took

WEEK 3
effect. This Court held that Section 2718 of the Revised Administrative Code that would
allow the prosecution of a person who remains delinquent in the payment of cedula
tax, 9 was no longer in force. As stated by the then Justice, later Chief Justice, Abad
Santos, after setting forth that the Constitution prohibits the imprisonment for debt or
non-payment of poll tax: 10 "It seems too clear to require demonstration that section 2718
of the Revised Administrative Code is inconsistent with section 1, clause 12, of Article Ill
of the Constitution in that, while the former authorizes imprisonment for non-payment of
the poll or cedula tax, the latter forbids it. It follows that upon the inauguration of the
Government of the Commonwealth, said section 2718 of the Revised Administrative
Code became inoperative, and no judgment of conviction can be based thereon." 11
De los Santos v. Mallare 12 came next. The President, under the Revised Administrative
Code, could remove at pleasure any of the appointive officials under the Charter of the
City of Baguio. 13 Relying on such a provision, the then President Quirino removed
petitioner De los Santos, who was appointed City Engineer of Baguio on July 16, 1946,
and chose in his place respondent Gil R. Mallare. Why such a power could not pass the
test of validity under the 1935 Constitution was pointed out by Justice Tuason thus: "So,
unlike legislation that is passed in defiance of the Constitution, assertive and menacing,
the questioned part of section 2545 of the Revised Administrative Code does not need a
positive declaration of nullity by the court to put it out of the way. To all intents and
purposes, it is non-existent, outlawed and eliminated from the statute book by the
Constitution itself by express mandate before the petitioner was appointed." 14
Martinez v. Morfe, 15 a 1972 decision, is likewise in point. In the light of the cited
provision of the 1935 Constitution, as authoritatively construed, Article 145 of the
Revised Penal Code was found to be inoperative. As therein provided, the penalty
of prision correccional is imposed on any public officer or employee who, while the
Congress was in regular or special session, would arrest or search a member thereof,
except in case he had committed a crime punishable by a penalty higher than prision
mayor. This Court ruled that the Revised Penal Code extended unduly the legislative
privilege of freedom from arrest as ordained in the Constitution. 16 Such a provision then
was contrary to and in defiance of the clear expression of the will of the Constitutional
Convention of 1934 that such immunity was never intended to exempt members of a
legislative body from an arrest for a criminal offense, the phrase treason, felony and
breach of the peace being all-inclusive. Reference was likewise made to the prevailing
American doctrine to that effect as enunciated by Williamson v. United States. 17
3. It would be an unjustified departure from a settled principle of the applicable

construction of the provision on what laws remain operative after 1935 if the plea of
petitioner in this case were to be heeded. The challenged Administrative Code provision,
certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office,
is, on its face, inconsistent with the religious freedom guaranteed by the Constitution. To
so exclude them is to impose a religious test. Torcaso v. Watkins 18 an American
Supreme Court decision, has persuasive weight. What was there involved was the
validity of a provision in the Maryland Constitution prescribing that "no religious test
ought ever to be required as a disqualification for any office or profit or trust in this State,
other than a declaration of belief in the existence of God ..." Such a constitutional
requirement was assailed as contrary to the First Amendment of the United States
Constitution by an appointee to the office of notary public in Maryland, who was refused
a commission as he would not declare a belief in God. He failed in the Maryland Court of
Appeals but prevailed in the United States Supreme Court, which reversed the state
court decision. It could not have been otherwise. As emphatically declared by Justice
Black: "this Maryland religious test for public office unconstitutionally invades the
appellant's freedom of belief and religion and therefore cannot be enforced against
him." 19
The analogy appears to be obvious. In that case, it was lack of belief in God that was a
disqualification. Here being an ecclesiastic and therefore professing a religious faith
suffices to disqualify for a public office. There is thus an incompatibility between the
Administrative Code provision relied upon by petitioner and an express constitutional
mandate. It is not a valid argument against this conclusion to assert that under the
Philippine Autonomy Act of 1916, there was such a prohibition against a religious test,

WEEK 3
and yet such a ban on holding a municipal position had not been nullified. It suffices to
answer that no question was raised as to its validity. In Vilar v. Paraiso, 20 decided under
the 1935 Constitution, it was assumed that there was no conflict with the fundamental
law.
4. This is the first case then where this Court has to face squarely such an issue. This
excerpt from the opinion of Justice Moreland in the leading case of McGirr v.
Hamilton, 21 a 1915 decision, has a force unimpaired by the passage of time: "Relative to
the theory that Act No. 1627 has stood so long and been silently acquiesced in for so
great a length of time that it should not be disturbed, it may be said that the fact that
certain individuals have, by ignorance or neglect, failed to claim their fundamental rights,
furnishes no reason why another individual, alert to his rights and their proper
enforcement, should be prevented from asserting and sustaining those rights. The fact
that Smith and Jones have failed to demand their constitutional rights furnishes no basis
for the refusal to consider and uphold the constitutional rights of Richard Roe In the case
of Sadler v. Langham (34 Ala. 311), this same question was under consideration and the
court in resolving it said: 'It may be urged, that these statutes have stood, and been
silently acquiesced in for so great a length of time, they should not now be disturbed. We
are sensible of the force of this argument. It will be observed, however, that in
Tennessee, the decision which declared the private road law unconstitutional was
pronounced forty years after the enact. judgment of the statute; and in New York, after
seventy years had elapsed. It is, perhaps, never too late to re- establish constitutional
rights, the observance of which had been silently neglected." 22 To support such a
conclusion, no less than the great Chief Justice Marshall, speaking for this Court
in United States v. More, in disposing of a contention by one of the parties as to
appellate jurisdiction having been previously exercised and therefore beyond dispute
was likewise relied upon. Thus: "No question was made in that case as to the jurisdiction
petition. It passed sub silentio, and the court does not consider itself bound by that
case. 23 So it should be in this litigation. As set forth at the outset, it is not even
necessary to annul the challenged Administrative Code provision. It is merely declared
inoperative by virtue of the mandate of the 1935 Constitution, similarly found in the
present Charter.
5. Nonetheless, tie above view failed to obtain the necessary eight votes needed to give
it binding force. The attack on the continuing effectivity of Section 2175 having failed, it
must be, as noted at the outset, given full force and application.
WHEREFORE, the petition for certiorari is granted. The judgment a quo is

reversed and set aside. Respondent Gonzaga is hereby ordered immediately to
vacate the mayoralty of the municipality of Albuquerque, Bohol, there being a
failure to elect. No pronouncement as to costs.
Concepcion, Jr., Santos, Fernandez and Guerrero, JJ., concur.
Separate Opinions
CASTRO, C.J., concurring:
While I concur in the result, certain overriding considerations, set forth below, constrain
me to dissent from the opinion penned by Justice Fernando as well as the written
concurrence of Justice Teehankee and Muñoz Palma.
1.
I reject Justice Teehankee's argument that section 2175 of the Administrative Code 1 has
been repealed by section 23 of the Election Code of 1971. 2 Nor can I accept the
conclusion reached by Justice Fernando that the said provision of the Administrative
Code has been superseded or rendered inoperative by the specific provisions of the
1935 and 1973 Constitutions that forbid the requirement of a religious test for the
exercise of civil or political rights.

WEEK 3
The thrust of section 23 of the Election Code of 1971 is simple: what is the effect of the
filing of certificates of candidacy by appointive, elective and other officials of the
government? The said section is therefore of no relevance (except to the extent that it
allows members of the Armed Forces to run for elective positions). Upon the other hand,
section 2175 of the Administrative Code treats of a disparate matter, which is the
absolute disqualification of the classes of persons enumerated therein.
Nor does the proscription contained in the said section 2175 prescribe a religious test for
tile exercise of civil or political rights. I have searchingly analyzed this provision, and I
am unable to infer from it any requirement of a religious test.
On the complementary question of implied repeal, it is a time-honored cardinal rule of

legal hermeneutics that for a later provision of law to be considered as having repealed a
prior provision, there must be such absolute repugnance between the two that the prior
provision must give way. I do not discern any such repugnance.
2.
Since section 2175 of the Administrative Code has not been superseded, and has been
neither expressly nor impliedly repealed in so far as the absolute disqualification of
ecclesiastics is concerned, it is perforce the controlling law in the case at bar. Careful
note must be taken that the absolute disqualification is couched in the most compelling
of negative terms. The law reads: "In no case shall there be elected or appointed to a
municipal office ecclesiastics
Should an ecclesiastic be erroneously allowed by this Court to hold a municipal office,

through the happenstance of a procedural technicality or by the mischief of
circumlocution or otherwise, then the Court would be particeps criminis in the negation of
the unequivocal and imperious mandate of the law. The law admits of no exception;
there can therefore be none. And the Court has no constitutional warrant to legislate thru
any manner of exercise in semantics.
3.
I wish to make of record some grave misgiving about allowing ecclesiastics to be elected
to governmental offices.
Our Lord Jesus Christ preached love, charity, compassion and mercy throughout His
earthly existence — and these four virtues, to my mind, make up His timeless gospel.
Unhappily, however, history has not infrequently been an anguished witness to religious
intolerance and persecution by ecclesiastics, whether they were Catholics or
Protestants.
Adverting to my own personal experience as a practicing Catholic, I still hear, once in a

great while, sermons or homilies by Catholic priests, delivered from the pulpit or from the
altar, declaring that the Catholic way of life is "the way to salvation," thereby inescapably
implying (without explicitly stating) that the adherents of other Christian sects and other
religious faiths may be damned from birth.
It is thus entirely possible that the election of ecclesiastics to municipal offices may
spawn small religious wars instead of promote the general community welfare and
peace - and these religious wars could conceivably burgeon into internecine dimensions.
Where then would we consign Pope John XXIII's ecumenism?
Should the majority of the mayoralties of the Philippines be someday occupied by

militant Catholic ecclesiastics, is it improbable that the next development will be a
determined nationwide campaign by the Catholic Church for the election of ecclesiastics
to our national legislative body? And if this eventuality should come, what then of our
cherished tradition of separation of Church and State? For my part, with history in

WEEK 3
perspective, the obvious logical and inevitable consequence is too frightful to
contemplate.
In my view, all ecclesiastics — whoever they are, whatever their faiths, wherever they
may be — should essentially be pastors, immersing themselves around the clock in the
problems of the disadvantaged and the poor. But they cannot be effective pastors if they
do not dissociate themselves completely from every and all bane of politics.
TEEHANKEE, J., dissenting:
I dissent from the judgment reversing and setting aside respondent judge's appealed
resolution of March 4, 1972 which dismissed herein petitioner's petition below of quo
warranto for disqualification of respondent as the duly elected and qualified mayor of
Alburquerque, Bohol in the 1971 elections due to his being allegedly ineligible therefor
as an ecclesiastic and instead entering a new judgment ordering him to vacate the said
office on the ground of "there being a failure to elect."
I. I hold on the sole issue joined by the parties in the court below and in this Court on
appeal that the archaic Revised Administrative Code provision barring ecclesiastic inter
alia from election or reappointment to a municipal office has n repealed by the provisions
of the Election Code of 1971, as correctly ruled earlier by the Commission on Elections
(in denying a separate petition filed by the same petitioner for annulment of respondent's
certificate of candidacy) and by respondent judge in the case at bar.
The sole issue joined in the case at bar by the parties is on the purely legal question of
whether section 2175 of the Revised Administrative Code which bars from election or
appointment to a municipal office "ecclesiastics, soldiers im active service, persons
receiving salaries or compensation from provincial or national funds or contractors for
public work of the municipality" is still im force or has beam repealed by the provisions of
the Election Code of 1971, Particularly section 23 1 thereof which allows "every person
holdimg a public appointive office or position, including active members of the Armed
Forces" to run for any public elective office but provides for their cessation in office ipso
facto excludes eccessiastics and municipal public works contractors from those declared
ineligible or disqualified form funning for an elective office.
This is incontrovertible from the record.
Respondent judge's pre-trial order of January 25, 1972 defining the sole issue of law as
joined and submitted by the parties expressly records that
The parties agreed during this pre-trial conference that the question of whether or not
respondent resigned from the Catholic hierarchy as a priest is immaterial to the issues
raise in the instant resolution by the Court purely on question of law, that is whether or
not the provisions of the Revised Administrative Code which prohibits ecclesiatics for m
running for municipal elective position. 2
and gave the parties ten days to file their respective memoranda, and declared the case
submitted for resolution upon expiration of the period.
Petitioner sole assingment of error in his applelants brief at bat is "(T)hat the court a
quo erred in ruling that section superseded by the provisions of Republic Act No. 6388,
otherwise known as the Election Code of 1971." 3 And his only argument in support
thereof-insofar as is relevant to this Court's judgement-was as follows:
The repealing clause of the Election Code of 1971 does not mention the Revised
Administrative Code or Section 2175 thereof as among those expressly repealed. In the
absence of inconsistency with any of the provisions of the Election Code, Sec. 2175 is

WEEK 3
neither repeal. ed, expressly or impliedly, nor revoked or superseded by any existing
law, and therefore must continue to stand in full force and effect.
It is the intent of Congress to retain prohibitions of ecclesiastics from holding municipal

office in order to maintain in. violate the great principle underlying the Philippine
Constitution, that is — THE COMPLETE SEPARATION OF THE CHURCH AND
STATE. The preservation of this principle is precisely the moving spirit of the legislature
in passing Sec. 2175 of the Revised Administrative Code and in EXCLUDING
ecclesiastics from the enumeration of persons in Sec. 23 Of the Election Code of 1971.
To allow ecclesiastics to run for a municipal office means an absolute abandonment of
this principle.
For a number of cases, the Supreme Court has disqualified ecclesiastics from assuming
a municipal office. In an Identical case of Pedro Villar vs. Gaudencio Paraiso, No. L-
8014, March 14, 1955; 96 Phil. 659, the Supreme Court disqualified respondent
Gaudencio Paraiso, then a minister of the United Church of Christ, from the office of
Mayor of Rizal, Nueva Ecija for being an ecclesiastic and therefore ineligible to hold a
municipal office. 4
Now, prior to the filing of the case below, petitioner (who was the incumbent mayor of
Alburquerque, Bohol) had before the 1971 — elections filed a petition with the
Commission on Elections 5 for the annulment of the certificate of candidacy as an
independent candidate (Liberal Party guest candidate) for the elective position of mayor
of the municipality of Alburquerque, Bohol of his lone opponent, herein respondent
Reverend Margarito R. Gonzaga, Catholic parish priest of the municipality of Jagna
Bohol on the ground of the latter's being barred from election to said office as an
ecclesiastic.
The Comelec unanimously denied the petition, ruling that respondent was eligible for the
office since section 2175 of the Revised Administrative Code had been repealed by
force of the M. Mendoza, members.
Election Code of 1971 which in "Section 249 (thereof) expressly repeals R.A. No. 180,
R.A. No. 3588 and all other laws, executive orders, rules and regulations, or parts
thereof, inconsistent with the Code." 6
The Comelec ruled that soldiers in active service and persons receiving salaries or
compensation from provincial or national funds "are obviously now allowed to run for a
public elective office because under Sec. 23 of the Election Code of 1971 6 every
person holding a public appointive office or position, including active members of the
Armed Forces' shall ipso facto cease in their office or position on the date they file their
'certificates of candidacy. 'This implies that they are no longer disqualified from running
for an elective office."
The Comelec further ruled that as to the two remaining categories formerly banned
under the Revised Administrative Code, "ecclesiastics and contractors for public works
of the municipality are allowed to run for municipal elective offices under the
maxim, 'Inclusio unius est exclusio alterius', they being not included in the enumeration
of persons ineligible under the New Election Code. The rule is that all persons
possessing the necessary qualifications,"except those expressly disqualified by the
election code, are eligible to run for public office."
Respondent judge, expressing agreement with the Comelec ruling in that case, held that
respondent is not disqualified nor ineligible to hold the position of mayor of Alburquerque
to which he had been duly elected and proclaimed. Respondent judge prescinded from
the fact that respondent had resigned his position as parish priest of another town,
Jagna and his resignation accepted on September 7, 1971 by the Bishop of Tagbilaran
and that his authority to solemnize marriages had at his request of September 7, 1971
been cancelled on October 22, 1971 by Director of the National Library Serafin D.
Quiason 7 all before the November, 1971 elections (unlike in Vilar vs. Paraiso 8 wherein
this Court upheld the trial court's refusal to give credence to the "supposed resignation"

WEEK 3
of therein respondent as a minister of his church). He bypassed also the well-taken
procedural question that petitioner not having appealed the adverse Comelec ruling in
the earlier case to this Court was bound thereby as the law of the case and could no
longer bring this second action on the same question after his defeat in the elections.
In my view, the Comelec ruling and respondent court's resolution agreeing therewith
stand on solid ground. As the Comelec stressed in its ruling, the Election Code of 1971
as the applicable law in this case expressly enumerates all those
declared ineligible or disqualified from candidacy or if elected, from holding office, viz,
nuisance candidates under section 31, those disqualified on account of having been
declared by final decision of a component court or tribunal guilty of terrorism, election
overspending, solicitation or receipt of prohibited contributions or violation of certain
specified provisions of the Code under section 25, or having been likewise declared
disloyal to the constituted government under section 27 or those presidential appointees
who prematurely seek to run for elective office without complying with the compulsory
waiting periods of 150 days (for national office) and 120 days (for any other elective
office) after the termination of their tenure of office under section 78. All other persons
possessing the necessary qualifications and not similarly expressly declared ineligible or
disqualified by the said Election Code, such as ecclesiastics the respondent or
contractors for municipal public works cannot but be deemed eligible for public office.
Thus, ecclesiastics' eligibility for national office has universally been conceded and has
never been questioned.
As already stated above, appointive public office holders and active members of the
Armed Forces are no longer disqualified from running for an elective office, because
section 23 of the 1971 Election Code manifestly allows them to do so and provides that
they" shall ipso facto cease in (their) office or position on the date (they) file (their)
certificate of candidacy." Ecclesiastics and municipal public works contractors are no
longer included in the extensive enumeration of persons ineligible under the said
Election Code. Under the maxim of "Inclusio unius exclusio alterius" and the general rule
that all persons possessed of the necessary qualifications except those expressly
disqualified by the Election Code are eligible to run for public office, the ban against
them in section 2175 of the Revised Administrative Code must be deemed set aside
under the 1971 Election Code's repealing clause.
The wisdom or desirability of the elimination of such prohibitions are of course beyond
the province and jurisdiction of the courts. Aside from such prohibition being at war with
the Constitutional injunction that "no religious test shall be required for the exercise-of
civil or political rights," the Legislators must have considered that there was no longer
any rhyme or reason for the archaic ban against ecclesiastics' election to
a municipal office when there is no such ban against their running for national office and
after all, vox populi est vox Dei. As to the lifting of the ban against municipal public works
contractors, suffice it to state that there are other laws, e.g. the Anti-Graft and Corrupt
Practices Act which if properly enforced should provide more than adequate safeguards
for the public interests.
There is no gainsaying that the Election Code of 1971 is a subsequent comprehensive

legislation governing elections and candidates for public office and its enactment, under
the established rules of statutory construction, "(as) a code upon a given subject matter
contemplates a systematic and complete body of law designed to function within the
bounds of its expressed limitations as the sole regulatory law upon the subject to which it
relates, ... The enactment of a code operates to repeal all prior laws upon the same
subject matter where, because of its comprehensiveness, it inferentially purports to be a
complete treatment of the subject matter. ..." 9
The repeal of the ban is further made manifest in the light of the 250 sections of the
1971 Election Code since "(T)he intent to repeal all former laws upon the subject is
made apparent by the enactment of subsequent comprehensive legislation establishing
elaborate inclusions and exclusions of the persons, things and relationships ordinarily
associated with the subject. Legislation of this sort which operates to revise the entire
subject to which it relates, by its very comprehensiveness gives strong implication of a

WEEK 3
legislative intent not only to repeal former statutory law upon the subject, but also to
supersede the common law relating to the same subject." 10
As a pure question of law, on the sole issue joined by the parties, therefore, I hold that
the ban in section 217 of the Administrative Code against the election of ecclesiastics
(and the three other categories therein mentioned) to a municipal office has been
repealed by the provisions of the Election Code of 1971, which nowhere in its all-
embracing and comprehensive text mentions-ecclesiastics (as well as the three other
categories in the aforesaid Administrative Code provision) as among those ineligible or
disqualified to run for public office (national or local).
II. On the constitutional dimension given motu proprio to the case in the main opinion of
Mr. Justice Fernando, by way of "Constitutional objections to the continuing force and
effectivity of Section 2175 as far as ecclesiastics are concerned" 11 , I concur with the
main opinion, concurred in by five other members of the Court, viz, Justices Munoz
Palma, Concepcion Jr., Santos, Fernandez and Guerrero that the archaic Administrative
Code provision declaring ecclesiastics ineligible for election or appointment to a
municipal office is inconsistent with and violative of the religious freedom guaranteed b
the 1935 Constitution 12 and that to so bar them from office is to impose a religious test
in violation of the Constitutional mandate that "No religious test shall be required for the
exercise of civil or political rights."
Both the 1935 Constitution (which is applicable to the case at bar) and the 1973
Constitution guarantee in practically Identical terms the fullest religious freedom. To
assure that there is no impediment to the fullest exercise of one's religious freedom, the
Constitution prohibits that there be a state established union and thereby decrees that
there must be separation of church and state. (The 1973 Constitution redundantly
stresses in its General Provisions, Article XV, section 15 that "(T)he separation of church
and state shall be inviolable."). The free exercise of one's religion and freedom of
expression of religious doctrines and beliefs (positive as well as negative) and the
freedom to perform religious rites and practices are guaranteed by the Constitution's
mandate that "no law shall be made ... prohibiting the free exercise (of religion)" and that
"the free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed." In order to assure the fullest
freedom of the individual in this regard and to prevent that the State negate or dilute
religious freedom by according preference to one religious organization as against
others, the Constitution finally commands that "no religious test shall be required for the
exercise of civil or political rights."
It is conceded that the non-religious test clause constitutionally bars the state from
disqualifying a non-believer, an atheist or an agnostic from voting or being voted for a
public office for it is tantamount to a religious test and compelling them to profess a
belief in God and a religion. By the same token, the same clause is equally applicable to
those at the opposite end, let us call them the full believers who in their love of
God and their fellowmen have taken up the ministry of their church or the robe of the
priest: to disqualify them from being voted for and elected to a municipal office (under
the questioned Administrative Code provision) is to exact a religious test for the exercise
of their political rights for it amounts to compelling them to shed off their religious
ministry or robe for the exercise of their political right to run for public office.
Stated in modern context, the Satanist is concededly not disqualified under the
questioned Administrative Code provision from election to municipal office. To enforce
the same statute's disqualification against ecclesiastics is to wrongfully invade the
ecclesiastic's freedom of belief and religion and to impose upon him a religious test in
flagrant violation of the Constitution. In contrast to the Satanist who is not subjected to a
religious test and disqualified for his picking up Satan's robe against God, the
ecclesiastic is disqualified for professing the profoundent religious belief in God and
wearing His cross on his lapel — he is to be barred simply because he is an ecclesiastic.
I hold, therefore, that aside from the strictly legal question presented by the parties and
correctly resolved by the Comelec in the earlier case and by the lower court in the case

WEEK 3
at bar, to wit, that the ban in section 2175 of the Revised Administrative Code against
the election of ecclesiastics (among others) to a municipal office has been repealed by
the 1971 Election Code, it is also correct to declare by way of obiter dictum (since it has
not been raised or placed in issue in the case at bar) as the main opinion principally
holds, that this archaic provision of the Administrative Code of 1917 must also be
deemed as no longer operative by force of the constitutional mandate that all laws
inconsistent with and violative of the Constitution shall cease to be in force. 13
The main thrust of the five separate concurrences for upholding the questioned ban of
ecclesiastics from public (municipal office) is the fear of "religious intolerance and
persecution by ecclesiastics" and the "oppression, abuses, misery, immorality and
stagnation" wreaked by the friars during the Spanish regime. But it is not appreciated
therein that this was due to the union of the State and the Church then — a situation that
has long ceased since before the turn of the century and is now categorically proscribed
by the Constitution. As His Eminence, Jaime L. Cardinal Sin, recently observed:
Union of the Church and the State invariably ends in the Church being absorbed,
manipulated or dominated by the State, or in the State being dominated by the Church.
Usually, it is the former eventuality that takes place, for the Church possess no armed or
coercive power comparable to what the State has.
At the beginning of her history, the Church invested the kings of recently converted
countries with the office and title of Protectors of the Church. This was all-right so long
as the kings were good and holy men, like St. Stephen of Hungary, or at least
reasonable decent men, like Charlemagne of France. but saintly and decent men are
often succeeded by scoundrels and the protectors - in the wry observation of the King of
Slam wound up 'protecting the Church out of everything that she possessed.
When, in some rare instances, it is the Church that dominates the State, the result is
what we know as clericalism.
Both alternatives, it is obvious, are undesirable. When the Church is dominated by the
State, she becomes a tool for the furtherance of wordly aims. And when the State is
dominated by the Church, then the Church tends to get confused as to her nature,
Identity, role and sion The Church, after an, is a supernatural society. Consequently, she
is weakened when she places her reliance on temporal power and resources rather than
on the grace of Almighty God. Clericalism provokes the natural reaction of separation, by
which is meant the isolation and strict confinement of the Church to the sacristy. It is the
placing the Church under house arrest. 14
Historians have noted that with the imposition of the separation of state and church by
the American regime, "(T)he Catholic Church, however, derived under the principle of
separation of Church and State positive benefits and advantages. Her freedom was
greatly enhanced. She was no longer subject to the various forms of supervision and
control imposed upon her during the Spanish regime. She was freed from government
intervention in the making of appointments to positions in the ecclesiastical system, in
the creation of parishes and in the establishment of institutions of religious character." 15
The Spanish era of "religious intolerance and oppression" and the new era of separation
of state and church easily led to the passage of the ban against ecclesiastics. There was
deep prejudice and resentment against the Spanish friars which rubbed off on the
Filipino Catholic parish priests. Catholics and the new religious groups of Aglipayans and
Protestants were reported to have harbored great mistrust of each other and fear that
one group would very likely use political power as an instrument for religious domination
over the others.
But it cannot be denied that the situation has radically changed since then. Specially
after Vatican 11 in 1965, the spirit of ecumenism, mutual respect, and cooperation have
marked the relations between Catholics, Protestants, Aglipayans, Iglesia ni Kristo and
other religious denominations.

WEEK 3
For Catholics, the Vatican synod declared: "that the human person has a right to
religious freedom. This freedom means that all men are to be immune from coercion on
the part of the individuals or of social groups and of any human power, in such wise that
in matters religious no one is to be forced to act in a manner contrary to his own beliefs.
Nor is anyone to be restrained from acting in accordance with his own beliefs, whether
privately or publicly, whether alone or in association with others, within limits. 16
Vatican II also declared that "Cooperation among all Christians vividly expresses that
bond which already unites them ... It should contribute to a just appreciation of the
dignity of the human person, the promotion of the blessings of peace, the application of
Gospel principles to social life, the advancement of the arts and sciences in a Christian
spirit. Christians should also work together in the use of every possible means to relieve
the afflictions of our times, such as famine and natural disasters, illiteracy and poverty,
lack of housing and the unequal distribution of wealth. Through such cooperation, all
believers in Christ are able to learn easily how they can understand each other better
and esteem each other more, and how the road to the unity of Christians may be made
smooth.17
If the friars then grabbed the so-called friar lands through oppressive exploitation of the
masses, the priests of today have taken up the cudgels for the masses and are at the
forefront of their struggle for social justice and a just society.
The days are long gone when the Priest is supposed to confine himself to the sacristy
and devote himself solely to spiritual, not temporal, matters. Where the State fails of
falters, the priest must needs help minister to this temporal power has resulted from their
adjusting themselves to tile realities and imperatives of the present day world.
As already indicated above, it is to be noted that the only statutory prohibition was to ban
ecclesiastics from appointment or election to municipal office. There is no ban
whatsoever against their election to or holding of national office, which by its nature and
scope is politically more significant and powerful compared to a local office.
The national experience with ecclesiastics who have been elected to national offices has
shown that contrary to the unfounded fears of religious prejudice and narrow-
mindedness expressed in some of the concurring opinions, they have discharged their
task with great competence and honor, since there is basically no incompatibility
between their religious and lay offices, as witness the elections and participation of
Msgr. Gregorio Aglipay as delegate to the Malolos Congress of 1898, Minister Enrique
Sobrepena and Philippine Independent Church Bishop Servando Castro as delegates to
the 1934-1935 Constitutional Convention, Frs. Pacifico Ortiz and Jorge Kintanar and
three other priests as delegates to the 1971 Constitutional Convention. and again Fr.
Jorge Kintanar as member of the current Interim Batasang Pambansa.
As far as local offices are concerned, the best proof of the Filipino ecclesiastic's capacity
to discharge his political office competently and with detachment from his religious
ministry or priesthood is the very case of respondent Fr. Gonzaga, who as far as the
record shows has efficiently discharged the role of mayor of Alburquerque since his
assumption of office on January 1, 1972 up to the present to the satisfaction of his
constituents and without any complaints. The question of whether a priest or cleric
should exercise his political right of seeking public office, national or local, is after all
best left to the decision of his church and his own judgment. After all, it is to be
presumed that no responsible person would seek public office knowing that his
ecclesiastical duties would be a hindrance to his rendering just and efficient public
service. Here, respondent after his decision to run for election in his hometown of
Alburquerque, duly resigned his position of parish priest in another town, that of Jagna
Bohol long before the holding of the election. The main thing is that the Constitutional
mandate of no religious test for the exercise of one's civil or political rights must be
respected. The ecclesiastic is free to seek public office and place his personal merits
and qualifications for public service before the electorate who in the ultimate analysis will
pass judgment upon him.

WEEK 3
Father Jose Burgos of the famed Gomburza martyrs took up in his manifesto of 1864 the
battle of the native clergy against the Spanish friars who had found their parishes to be
lucrative positions and refused to give them up to the Filipino seculars who were
increasing in number and improving in caliber. He boldly accused the friars of
"enrichment, greed and immorality" and they marked him as their greatest enemy.
As the historians now assess it, "Indeed, whether or not Father Burgos meant it, his
manifesto of 1864 galvanized and fused the scattered and isolated areas of discontent in
the land, so that Filipino nationalism which had its birth pangs in Mactan finally emerged
full-grown. The travail of the Filipino clergy served to galvanize Filipino nationalism,
existing since Lapulapu in unintegrated and undeveloped form from Tuguegarao to
Taglibi from Sulu to Sarrat and Sagada. As in Spain itself, nationalism in the Philippines
needed an infusion of liberalism before it could acquire content and direction. And,
perhaps without meaning to do so, it was the peculiar contribution of the Filipino
clergy, much respected and most influential among the people, to give substance and
meaning to their fellow Filipinos' love of freedom and country. 18
Thus, "the dispute between secular and regular clergy over the parishes......... became a
nationalist movement, which joined forces with the lay reformists who had come into the
open ..." and "(T)he new movement blew like a wind of change through every level and
layer of society except the impregnable ranks of the friars. Then, suddenly, it became a
whirlwind that sucked three pious secular priests into its vortex For the Cavite Mutiny of
1872 exploded and they were accused of complicity, court-martialed and garroted. 19
It was our national hero, Dr. Jose Rizal, who "captured the historic galvanizing mission
which the martyr priests accomplished for their people and country, as well as the cruelty
and inhumanity of the revenge in the guise of justice inflicted upon them, when in 1891
he dedicated his second novel El Filibusterismo [Subversion] 20 to the three martyr
priests in the following words: ['The Church, by refusing to unfrock you, has put in doubt
the crime charged against you; the Government by enshrouding your trial in mystery and
pardoning your coaccused has implied that some mistake was committed when your fate
was decided; and the whole of the Philippines in paying homage to your memory and
calling you martyrs totally rejects your guilt.']" 21
It would indeed be an ironic twist of history if the martyrdom of Frs. Burgos, Gomez and
Zamora in the defense of freedom and the dignity and rights of the Filipino clergy which
galvanized Filipino nationalism and eventually overthrew the Spanish regime were to be
set at naught and the Filipino ecclesiastics were to remain banned from seeking public
office to serve their fellowmen, because the spectre of the friars who abused and
maltreated the people continues to haunt us and we would now visit their sins upon our
own clergy.
III. The disposition of the case and judgment granting quo warranto - notwithstanding
that there stand seven votes for affirming respondent judge's dismissal of
the quo warranto, namely, Justices Fernando, Teehankee, Muñoz Palma, Concepcion
Jr., Santos, Fernandez and Guerrero, on the ground that the questioned provision
barring ecclesiastics from municipal office has been superseded and rendered
inoperative by the no-religious test clause of the Constitution and by the Election Code
of 1971 and only five votes for upholding as in full force and effect the questioned ban on
ecclesiastics, namely, the Chief Justice and Justices Barredo, Makasiar, Antonio and
Aquino is contrary to the Rule of Court providing that where the Court in banc is equally
divided in opinion and no decision by eight Justices is reached (as required by Article X,
section 2 [2] of the 1973 Constitution for the pronouncement of a judgment) the
appealed judgment or order shall stand affirmed. Since the lower court dismissed
the quo warranto petition and allowed respondent to remain in office, such dismissal
should stand affirmed, rather than the judgment now rendered granting the quo
warranto petition and ordering respondent to vacate the office.
As stated in the main opinion, seven Justices are for affirmance of the appealed
judgment "as the challenged provision is no longer operative either because it was
superseded by the 1935 Constitution or repealed" while five Justices hold that "such a

WEEK 3
prohibition against an ecclesiastic running for elective office is not tainted with any
constitutional infirmity." 22 The writer of the main opinion, however, joined by four others
[namely, Justices Concepcion Jr., Santos, Fernandez and Guerrero] invoke the legal
principle that "the presumption of validity [of a law] calls for its application" and therefore
have voted with the minority of five [namely, the Chief Justice and Justices Barredo,
Makasiar, Antonio and Aquino] to reverse and set aside the judgment a quo and to order
that "respondent Gonzaga ... immediately ... vacate the mayoralty of the municipality of
Alburquerque, Bohol, there being a failure to elect. 23
As a preliminary observation, it should be noted that the judgment or dispositive portion

of the main opinion ordering respondent Gonzaga to vacate his office "there being a
failure to elect", is not correct, since said respondent was duly elected and
proclaimed after his candidacy and qualification for the office had been precisely upheld
before the holding of the 1971 elections by the Commission on Elections which
dismissed the same herein petitioner's petition with it to annul respondent's certificate of
candidacy, on exactly the same ground as here, based on section 2175 of the
Administrative Code, which dismissal was not appealed by petitioner and is therefore the
law of the case.
Be that as it may, the question confronting the Court is what is the applicable law in a
case like this where there is an inconclusive or indecisive vote of seven to five for
affirming the appealed judgment?
To begin with, the applicable law is not the Constitutional provision which requires a
qualified vote of at least ten members of this Court to declare unconstitutional a law,
treaty or executive agreement. 24 In Such constitutional cases, failure to reach the
qualified vote of ten members results in a declaration that the constitutionality of the
questioned law is deemed upheld. Concededly, the present action is not one to declare
unconstitutional the questioned provision banning ecclesiastics from municipal office.
The action was filed by petitioner precisely invoking the law's ban in order to disqualify
respondent. The lower court merely sided with the Comelec's ruling in an earlier case
filed by petitioner for the same purpose of disqualifying respondent, and dismissed the
case below upholding respondent's defense that the law had been repealed by the 1971
Election Code. This was the sole issue both before the lower court and this Court.
As shown hereinabove, the sole issue joined by the parties in the court below and in this
Court on appeal was whether or not the questioned provision banning ecclesiastics from
municipal office has been repealed or not by the 1971 Election Code. Concededly, a
minimum of eight votes as required by the Constitution for the pronouncement of a
judgment is needed to declare that the same has been repealed under this sole issue, or
superseded or rendered inoperative by virtue of the 1935 Constitutional provisions
guaranteeing freedom of religion and prohibiting religious tests for the exercise of civil
and political rights under the supplementary issue of repeal by force of the Constitution
raised motu proprio in the main opinion. 25
The applicable law, then, in non-constitutional cases such as that at bar is found in Rule
56, section 11 of the Rules of Court, which was designed specifically to cover such
cases where the necessary majority of a minimum eight votes "for the pronouncement of
a judgment, 26 cannot be had and provides that the appealed judgment shall stand
affirmed.
The appealed judgment in the case at bar dismissing the quo warranto action

must stand affirmed under the cited Rule which provides that:
SEC. 11. Procedure if opinion is equally divided. — Where the court in banc is equally
divided in opinion, or the necessary majority cannot be had, the case shall be reheard,
and if on re- hearing no decision is reached, the action shall be dismissed if originally
commenced in the court; in appealed cases, the judgment or order appealed from shall
stand affirmed and on all incidental matters, the petition or motion shall be denied. (Rule
56)

WEEK 3
As restated in Moran's Comments, "(I)n appealed cases, the above provision states that
the judgment or order appealed from shall stand affirmed. This refers to civil cases, the
rule in criminal cases being that provided by section 3 of Rule 125, which states that in
such cases the judgment of conviction of the lower court shall be reversed and the
defendant acquitted. If the judgment appealed from declares a law or a treaty
unconstitutional, or imposes death penalty and the concurrence of at least eight [now ten
Justices cannot be had, the Supreme Court shall so declare, and in such case the
validity or constitutionality of the act or treaty involved shall be deemed upheld, or the
penalty next lower to death shall be imposed." 27
Apparently, the five members of the Court headed by the writer of the main opinion
found themselves in a conflict between the principle of presumption of validity of a law
which normally calls for its implementation by the executive department - until declared
invalid by the courts and their view that the challenged legal provision barring
ecclesiastics from municipal office is no longer operative either because it has been
superseded by the Constitution or repealed by the 1971 Election Code. In such case, it
is submitted with all due respect that they erred in joining votes with the minority of five
opining to the contrary, for the cited Rule expressly provides that in such a case of a split
Court with neither side obtaining the necessary number of votes for the pronouncement
of a judgment upholding their conflicting views, the appealed judgment shall stand
affirmed.
For the appealed judgment to stand affirmed does not mean that "the Court would
be particeps criminis in the negation of the unequivocal and imperious mandate of the
law." 28 It would simply be the law of the case, because of the inconclusive vote. It is just
the same as if petitioner had not appealed or if his appeal had been dismissed for failure
to prosecute the same.
If the lower court had ruled in favor of petitioner and respondent were the appellant, the
appealed judgment (against respondent in this example) would stand affirmed, despite
the seven votes in his favor. But the vote would be inconclusive just the same. The issue
of whether or not the challenged law is deemed superseded by the Constitution or
repealed by the 1971 Election Code would have to be left for another case and another
time.
Put in another way, even assuming that the lower court erred in adjudging that the
questioned law has been repealed, under the cited and applicable Rule, this Court would
need 8 votes to overturn such judgment, just as it would need the same number of votes
for this Court to overturn the judgment if it had been the other way around. This is the
necessary consequence in cases where this Court cannot arrive at a majority one way or
the other.
The same situation has happened more frequently in appeals from criminal convictions
by the lower courts wherein the applicable rule is the reverse, with Rule 125, section 3
providing that where the necessary majority of eight votes for affirming the judgment of
conviction or acquitting the accused cannot be had, "the judgment of conviction of the
lower court shall be reversed and the defendant acquitted. 29
The provisions of the Penal Code and Statutes are generally absolute provisions against
the commission of the criminal acts therein defined. But the failure of the Court to obtain
the necessary majority of eight votes (in non-capital cases) for the pronouncement of
a judgment affirming the conviction (and resulting in the acquittal of the accused) does
not connote in any manner that this Court has thereby become a particeps criminis in the
violation of the criminal law. Neither does it mean that the Court has thereby rendered
the penal statute void or ineffectual with the accused's acquittal in the specific criminal
case. To cite an example, in the case of Ramirez vs. Court of Appeals, 71 SCRA 231
(June 10, 1976), the accused was therein acquitted of the crime of falsification on a 4 to
5 vote (out of 11 Justices with 2 abstentions), but it cannot be said that the prevailing
opinion thereby obliterated the crime of falsification under Art. 172 of the Revised Penal
Code simply because of the alleged repeal of CB Circular 20 by CB Circular 133 which
served as the main reason for dividing the Court in the case.

WEEK 3
If the majority were to follow the same approach in these criminal cases where there is a
similar division of the Court as to whether a particular penal statute or provision has
been repealed or rendered inoperative and the necessary majority cannot be had, as in
the cited case of Ramirez, supra - then even those who vote for acquittal (as those who
voted for declaring the questioned law inoperative) must cross over and join those
voting contrarily for affirmance of conviction in order to uphold the principle applied
herein by the majority that "the presumption of validity [of a law] calls for its application"
— in violation of the cited Rules governing a divided Court's failure to reach the
necessary majority.
In closing, it should be borne in mind that petitioner's action to disqualify respondent and
to be proclaimed as Alburquerque Bohol mayor in his stead is an exercise in futility
because (a) the office's term has long expired and (b) more importantly, even if the term
may be deemed as not having expired, this Court has consistently held that a petitioner
in such disqualification proceedings cannot be proclaimed as elected to the office (in lieu
of a disqualified respondent) which is the only thing that petitioner has vainly sought
herein — to be proclaimed and seated as mayor vice the respondent who defeated him
in the election. As held in Vilar vs. Paraiso, supra: 30 "(A)s to the question whether,
respondent being ineligible, petitioner can be declared elected, having obtained second
place in the elections, our answer is simple: this Court has already declared that this
cannot be done in the absence of an express provision authorizing such declaration. Our
law not only does not contain any such provision but apparently seems to prohibit it,"
BARREDO, J., concurring:
My vote is to grant the petition and to declare respondent Rev. Fr. Margarito R. Gonzaga
disqualified under Section 2175 of the Revised Administrative Code from being mayor of
Alburquerque Bohol, which position he has assumed by virtue of his winning in the local
elections held in 1971, for which reason he should be ordered to vacate the same. I
would, however, limit the grounds for my vote to the considerations hereinunder stated,
for it is not the danger of any form or degree of church control of state affairs that I
perceive in allowing an ecclesiastic to be elected as mayor, the occurrence of such a
contingency being probably quite remote now with the character of the Filipino clergy
who are a far cry from the friars during the Spanish times. I just cannot imagine how a
duly ordained minister of God whose sacred life mission is supposed to be to serve God
and to advance and defend the interests of His church above all other interests can
properly act as a government official committed to enforce state policies which may
conflict with the fundamental tenets of that church.
I agree with the Chief Justice and Justice Makasiar that the trial court's ruling, following
that of the Commission on Elections, to the effect that Section 2175 of the Revised
Administrative Code has been repealed by Section 23 of the Election Code of 1971 is
not legally correct. More than merely declaring ecclesiastics ineligible to a municipal
office, the Administrative Code provisions enjoins in the most unequivocal terms their
incapacity to hold such office whether by election or appointment. Indeed, the word
"ineligible" in the title of the section is inappropriate. If said Election Code provision has
any incompatibility with the above-mentioned Administrative Code provision, it is only by
implication and only insofar as members of the Armed Forces of the Philippines are
concerned, in the sense that said army men are now allowed to run for election to
municipal offices provided that they shall be deemed to automatically cease in their army
positions upon the filing of their respective certificates of candidacy. Section 23 does not
define who are qualified to be candidates for public elective positions, nor who are
disqualified. It merely states what is the effect of the filing of certificates of candidacy by
those referred to therein, which do not include ecclesiastics Thus, the inconsistency
contemplated in Section 249 of the Code as productive of repealing effect does not exist
in the case of Section 23 thereof vis-a-vis Section 2175 of the Revised Administrative
Code.
Accordingly, the only way respondent Fr. Gonzaga can legally hold to the mayorship he
is occupying, is for Section 2175 to be declared as violative of the constitutional
injunction in Section 1 (7) of the 1935 Constitution of the Philippines which was in force
in 1971 that "No religious test shall be required for the exercise of civil or political rights"
WEEK 3
as contended by him. On this score, it is my considered view that there is no repugnancy
at all between Section 2175, on the one hand, and the freedom of religion provision of
the Old Constitution, which, incidentally, is reproduced textually in the New Charter, and
the principle of separation of church and state, on the other.
The "no religious test" provision is founded on the long cherished principle of separation
of church and state which the framers of our 1973 Constitution opted to include as an
express provision in the fundamental law by ordaining that such separation "shall be
inviolable" (Art. XV, Sec. 15), not as a redundancy but in order to comprehend situations
which may not be covered by the provisions on religious freedom in the Bill of Rights.
(Art. IV, Sec. 8.) It simply means that no public office may be denied to any person, by
reason of his religious belief, including his non-belief. Whether he believes in God or not,
or, believing in God, he expresses and manifests his belief in one way or another, does
not disqualify him. But when he becomes a religious or an ecclesiastic he becomes one
who does not merely belong to his church, congregation or denomination or one who
entertains his own religious belief; he becomes the official minister of his church with
distinct duties and responsibilities which may not always be compatible with the posture
of absolute indifference and impartiality to all religious beliefs which the government and
all its officials must maintain at all times, on all occasions and in every aspect of human
life and individual endeavor precisely because of the separation of church and state and
the full enjoyment of religious freedom by everyone. There is no known safeguard
against witting or unwitting, patent or latent discrimination that a religious may lapse into
when confronted with a situation where opposing religious interests maybe involved. And
yet, it is in such a predicament that paramount public interest would demand that he
should neither hesitate nor equivocate. Having in mind the imperfection of all human
beings, I cannot believe that any religious, found in such unenviable situation would be
able to successfully acquit himself from all suspicion of concealed interest in favor of his
own church. What is worse, any attempt on his part to look the other way just to avoid
such suspicion of partiality might only result in more impropriety or injustice. Indeed, as I
see it, even the day of perfect and sincere ecumenism is not yet here.
It is already a matter of deep anxiety for everyone in any political unit concerned that a
devout Catholic or Protestant or Muslim layman holding a public office therein may find it
extremely difficult, if not impossible, to dissociate his religious thinking from his judgment
or motivations as he acts in the performance of his duties. Certainly, it would be a graver
problem if the official should happen to be a religious minister, since his graver
responsibility to his church in the premises could imaginably outweigh in his decision
process the demands of the general public interest. As a simple matter of good
government principle, the possibility of such an undesirable contingency must be
avoided. To my mind, it is just as objectionable for an official of the civil government to
try to take part in running any religious denomination or order, as it is for a religious to
involve himself in the running of the affairs of government as an official thereof. The
observations of Justice Teehankee anent some religious leaders named by him who
have occupied positions in the national government either as delegates to the
Constitutional Conventions of 1934 and 1971 or as members of the national legislature
are, I regret to say, misplaced. Apart from the fact that they were too few to decisively
impress the inalienable religious principles of their respective churches on the ultimate
decisions of the conventions or the legislative bodies where they sat regarding matters in
which said churches were interested, one has to be utterly naive to expect that Father
Kintanar for instance, will not be guided exclusively by the doctrines and declared official
position of the Roman Catholic Church related to such controversial subjects as divorce,
annulment of marriages and birth control, to cite only a few. Withal, Section 2175 covers
only municipal offices, for the simple reason that it is in the lowest levels of the
government structure where the officials constantly deal directly and personally with the
people that the risks of religious influences in the daily affairs of public administration
can easily be exerted to the detriment of the principle of separation of church and state.
My impression is that if any religious is now being allowed to hold any particular office
that requires religious background and approach, it is mostly in conjunction with other
officials with whom he can only act in common, such as, in the Board of Pardons and
Parole, where he can exert at most only a degree of recommendatory influence and he
decides nothing conclusively for the state. In any event, the spectacle of a priest and a

WEEK 3
politician being one and the same person may vet be an attempt to mix oil with water, if it
would not be doing what the Scriptures do not permit: honor both God and Mammon
Of course, a Filipino priest or a nun does not cease to be a citizen endowed with all
political rights as such. I maintain, however, that the choice by any religious of the high
and noble vocation of dedicating his or her life to God and His Church should, in the very
nature of things and for the best interests of tile community as a whole, be deemed as a
virtual waiver or renunciation of the prerogative to hold a public office, for the reasons of
inevitable incompatibility I have discussed earlier, and it is but logical that the law give
effect to such renunciation, for the sake of both, the church and the state. As Mr. Justice
Ramon C. Aquino aptly puts it, it is not his or her religious belief but the exclusivistic
character of the vocation he or she has embraced that constitutes the bar to any political
ambition he or she may entertain. Just as the very Ideal itself. of religious freedom has
been held to yield to the demands of the public interest, it is not illogical, much less
legally untenable, to construe the "no religious test" provision in th e Constitution as not
constituting a prohibition against banning an ecclesiastic from holding a municipal office
due to the incompatibility between his commitment to his vocations, on one hand, and
his loyalty and dedication to his public office both of which require his full and entire
devotion.
MAKASIAR, J., concurring:
It grieves me to dissent on constitutional and legal grounds from my brilliant and learned
colleagues, Justice Enrique M. Fernando, Justice Claudio Teehankee and Justice
Cecilia Munoz Palma, whose scholarly dissertations always command respect; because
my discusssion will be a catalogue of the dangers po by the Church in which I was born
and nurtured like my two sons and two daughters - the Roman Catholic Church, in
whose service my late lamented father wanted to be, studying as he did for the
priesthood in a Catholic seminary
I fully concur with the no less incisive opinions of Chief Justice Fred Ruiz Castro, and
Justices Antonio P. Barredo, Felix Q. Antonio and Ramon C. Aquino. I only wish to add
some thoughts avoiding as far as possible restating the citations in their opinions.
But first, we shall apply the legal scalpel to dissect Section 23 of the Election Code of
1971, which, in the opinion of the trial judge, impliedly repealed Section 2175 of the
Revised Administrative Code. This issue which was not discussed extensively by Mr.
Justice Fernando in his opinion, is the centerpiece of the opinion of Mr. Justice
Teehankee who concurs with him.
The two alleged conflicting legal provisions are hereunder quoted:
Sec. 23. Candidate holding appointive office or position. Every person holding a public
appointive office or position, including active members of the Armed Forces of the
Philippines and every officer or employee in government-owned or controlled
corporations, shall ipso facto cease in his office or position on the date he files his
certificate of candidacy: Provided, That the filing of a certificate of candidacy shall not
affect whatever civil, criminal or administrative liabilities which he may have incurred
(Election Code of 1971, emphasis supplied).
Section. 2175. Persons ineligible to municipal office. — In no case shall there be elected
or appointed to a municipal office ecclesiastics, soldiers in active service, persons
receiving salaries or compensation from provincial or national funds, or contractors for
public works of the municipality (Revised Administrative Code, emphasis supplied).
Basic is the rule that implied repeals are not favored unless there is such an
irreconcilable repugnancy between the two laws that both statutes cannot stand
together.

WEEK 3
It is patent that the two legal provisions are compatible with each other. Section 23 of the
Election Code does not enumerate the persons disqualified for a public elective or
appointive office; but merely prescribes the effect of filing a certificate of candidacy by an
appointive public officer or employee or by active members of the Armed Forces of the
Philippines or by an officer or employee in a government-owned or controlled
corporation.' Section 23 states that upon the filing of his certificate of candidacy, such
appointive officer or employee or member of the Armed Forces shall "ipso facto cease in
his office or position ..." The obvious purpose is to prevent such candidate from taking
advantage of his position to the prejudice of the opposing candidates not similarly
situated.
On the other hand, Section 2175 of the Revised Administrative Code provides for an
absolute disqualification and enumerates the persons who are so absolutely disqualified
to run for or be appointed to a municipal office which enumeration includes not only
public officers but also private individuals like contractors and ecclesiastics Section 23 of
the Election Code of 1971 applies only to public officers and employees, including those
in government-owned or controlled corporations and members of the Armed Forces, but
not to private citizens, like contractors or ecclesiastics Hence, a contractor who is not
employed in any government office or government-owned or controlled corporation or in
the Armed Forces, need not vacate his private employment., if any, upon his filing a
certificate of candidacy. likewise, if he were qualified in the absence of the absolute e
disqualifications in Section 2175 of the Revised Administrative Code, a priest or minister
is not ipso facto divested of his position in his church tile moment he files his certificate
of candidacy.
The fact that the Commission on Elections prior to the elections in 1971 denied
petitioner's petition for th annulment of the certificate of candidacy of private respondent,
is not conclusive on the Supreme Court, the final arbiter on legal questions and does not
constitute res judicata. The COMELEC's opinion may be persuasive, but never binding
on the Supreme Court. Moreover, the petition should have been dismissed as premature
then, because the issue might have been rendered moot and academic should the
candidate sought to be disqualified before the election loses the election. At any rate,
Section 219 of the Election Code of 1971 authorizes any voter to file quo
warranto proceedings against any local officer-elect on the ground of ineligibility within
fifteen (15) days after the proclamation of his election. The adverse opinion on the part
of the COMELEC prior to the election, did not bar the petition for quo warranto under
Section 219 of the Election Code of 1971.
Moreover, unlike the 1973 Constitution, the 1973 Constitution did not est n the
COMELEC any power to decide contests relating to the election, returns and
qualifications of elective officials, whether national or local. Under the 1973 Constitution
the COMELEC is not conferred the power to decide contests relating to the election,
returns and qualifications of municipal elective officials. However, the 1973 Constitution
constitutes the COMELEC the sole judge of all contests relating to the elections, returns
and qualifications of the members of the National Assembly and the elective provincial
and city officials (Section 2[21, Art. XII, 1973 Constitution); but su h determination by the
COMELEC is still subject to review by the Supreme Court (Section I [1], Art. XI 1, 1973
Constitution), which therefore is the ultimate arbiter of such election issues.
If the implied repeal theory were sustained, then Section 23 of t tie Election Code of
1971, if construed to allow ecclesiastics and other ministers of religion to run for or be
appointed to a municipal office collides with tile Constitution as the same violates the
separation of church and state expressly enjoined b Section 15 of Article XV, Section
18(2) of Article VIII, and Section 8 of Article IV of the 1973 Constitution for the reasons
hereinafter stated.
II
WE shall proceed to marshal the forces with which to lay siege on the citadel erected by
Mr. Just ice Fernando to sustain his theory that Section 2175 of the Revised
Administrative Code was abrogatd by the no-religious test clause of Section 1(7) of the

WEEK 3
Bill of Rights [Art. III of the 1935 Constitution, which is re-stated as Section 8 of the Bill of
Rights (Article IV) of the 1973 Constitution.
As above stated, repeals by implication are abhorred unless there is a clear showing of
complete and total incompatibility between the two laws. And WE believe that there is no
such irreconcilable repugnancy between Section 2175 of the Revised Administrative
Code and the no-religious test clause of the Bill of Rights.
On the other hand, the proposition advanced by my brethren, Justices Fernando and
Teehankee, clashes inevitably with the doctrine of separation of Church and State
expressly prohibited by Section 15 of Article XV of the 1973 Constitution, condemned by
Section 8 of the Bill of Rights (Article IV), and proscribed by Section 8 of Article XII and
Section i 8(2) of Article VI I I of the 197 3 Constitution.
Section 15 of Article XV categorically declares that:
The separation of Church and State shall be inviolable.
Section 8 of the Bill of Rights (Article IV) reads:
No law shall be made respecting an establishment of religion, or prohibiting the free

exercise thereof. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.
Section 18(2) of Article VI I I states:
No public money or property shall ever be appropriated, applied, paid, or used, directly
or indirectly, for the use, benefit, or support of any sect church denomination, sectarian
institution, or system of religion, or for the use, benefit, or support of any priest,
preacher, minister, or other religious teacher or dignitary as such, except when such
priest, preacher, minister, or dignitary, is assigned to the armed forces, or to any penal
institution on government orphanage or leprosarium.
Section 8 of Article XII commands that:
No religious sect shall be registered as a political party, ...
To stress, Section 2175 of the Revised Administrative Code, does not provide for a
religious test for the exercise of civil and political rights. The said section merely defines
a disqualification for a public office. It prohibits priests or ministers of any religion, and
the other persons specified in said Section 2175, from running for or being ap silted to a
municipal public office. It does not deprive such specified individuals of their political
right of suffrage — to elect a public official.
A citizen, who Is a Catholic, Protestant, Muslim, Aglipayan or a member of the Iglesia ni

Kristo, but who is not a priest or a minister of any religion, sect or denomination, can run
for a municipal elective office. Section 2175 does not inquire into the religion or lack of it
on the part of an ordinary citizen. If it does, all citizens would be disqualified for election
or appointment to a local public office; and there would be no need to single out soldiers
in active service, persons receiving salaries or compensation from provincial or national
funds, or contractors for public works of the municipality, along with ecclesiastics All
these persons. whether priests or ministers or soldiers or contractors or employees of
the national or provincial government, profess some religion or religious belief. To
repeat, one is disqualified under Section 2175, not by reason of his religion or lack of it,
but because of his religious profession or vocation.
The separation of Church and State implicit in the Bill of Rights (Sec. 1, par. 'i of Art. III
of the 1935 Constitutions and Sec. 8, Article IV, 1973 Constitution), has been expressly
stated and therefore stressed in Section 15 of Article XV of the 1973 Constitution, which
categorically enjoins that "the separation of Church and State shall be inviolable." This

WEEK 3
basic principle which underlies the structure of our government was the sharp reaction to
the historical lesson learned by mankind in general that the fusion of government and
religion tends to destroy government and degrade religion Engel vs.Vitale 370 US 421
because it invariably degenerates into tyranny. The terror that was the Inquisition
claimed for its victims physicist and astronomer Galileo Galilei and philosopher Giordano
Bruno among thousands of other victims.
The view herein enunciated by Justice Fernando and Teehankee will again usher in the
era of religious intolerance and oppression which characterized the Spanish regime of
about 400 years in the Philippines. It will resurrect in our political life that diabolic
arrangement which permits tile "encroachment of Church upon the jurisdiction of the
government, and the exercise of political power by tile religious, in short, the union of the
State and the Church — which historically spawned abuses on the part of the friars that
contributed to the regressiveness, the social and political backwardness of the Filipinos
during tile Spanish Era and bring about a truly theocratic state — the most dangerous
form of absolutism, according to Lord Acton that great liberal Catholic and illustrious
scholar (Senator Claro M. Recto "The Evil of Religious Test in our Democracy , speech
delivered before the Central Philippine University on February 19, 1960).
When a priest is allowed to run for an elective position, in the stirring language of the
erudite Claro M. Recto, he same will re-establish "a tyrannical regime that engaged in
the most vicious political and religious persecution against dissenters. The Church in the
Philippines was responsible for the execution of Fathers Gomez, Burgos and Zamora, of
Rizal and other Filipino patriots" (speech delivered on February 15, 1958 before the
Supreme Council of the Ancient and Accepted Scottish Rite of Free Masonry).
No doubt Section 2175 was designed to preserve the indestructible wall of separation
between Church and State the basic pillar of our democratic regime. The no-religious
test clause of the Constitution only implements and supplements one's freedom to
entertain views of his relations to his Creator and to preach, propagate and evangelize
his religious belief. But such no-religious test does not guarantee him the right to run for
or be appointed to a public office and thereafter to use such public office to compel the
citizenry to conform to his religious belief, thereby to gain for his Church dominance over
the State.
A priest or minister, once elected or appointed to a municipal office, necessarily enjoys

the salary pertaining to the office. This would be a direct violation of the prohibition under
Section 18(2) of Article VIII of the 1973 Constitution which was contained in paragraph 3
of Section 23 of Article VI of the 1935 Constitution. Not only public funds will be
appropriated for his salary but the priest or minister thus elected or appointed as a
municipal officer employee will also directly or indirectly enjoy the use or benefit of any
property of the municipality. The only exception where such appropriation of public
money or property can be validly made in favor of such priest or minister is when he is
assigned to the Armed Forces or to any penal institution or government orphanage or
leprosarium.
What will necessarily follow would be the Church fielding its own candidates for
municipal offices all over the country even without registering as a political party. Such
support by the Church, although not registered as a political party, remains a
circumvention of the absolute prohibition specified in Section 8 of Article XII of the 1973
Constitution. And when the majority of the winning candidates for elective offices in tile
towns all over the country are supported by the Church, these officials will naturally be
beholden to the Church and will utilize — covertly or overtly — their office to further the
interests of the Church. When the Church achieves such political dominance, then the
Church will have the power to persuade the electorate or citizenry to amend the
Constitution to eliminate all the provisions on separation of Church and State, the
establishment of state religion and the utilization of public funds or property by the
Church or by any of its priests or ministers and the prohibition against the registration of
a religious sect as a political party.

WEEK 3
The history of mankind, including our own history, to which Mr. Justice Jose P. Laurel
appealed in Aglipay vs. Ruiz (64 Phil. 201, 205), and our jurisprudence furnish the
formidable evidence of the dangers that religious supremacy poses to our country and
people.
Once a particular church or religion controls or is merged with the State, we shall bid
goodbye to all our liberties; because all other churches, religions, sects or
denominations and all other dissenters of whatever hue or persuasion, will not be
tolerated.
Just recently, columnist Teodoro F. Valencia recounted in his column of August 5, 1978
that a certain "Jose B. Marabe of Davao City reports that in the town fiesta of Talalora
West Samar, barrio officials were compelled to become Aglipayans because the mayor
turned Aglipayan. Those who did not obey were denied barangay aid" (Over a Cup of
Coffee, Daily Express, August 511978, p. 5).
Former Senator Claro M. Recto, the father of the 1935 Constitution, painfully narrates:
And yet we have been witnesses to the fact in the last two elections that religious
organizations, priests and nuns, bishops and archbishops descended upon the political
arena, not only to urge the faithful to support their own favorite candidates for national
positions, but to enjoin them from voting for certain candidates whom the hierarchy
considered enemies of the church, under threat of ex-communication and eternal
damnation The confessional and the pulpit have been utilized for these purposes.
xxx xxx xxx
In the elections of 1955 the hierarchy made the first try. The hierarchy gave several
candidates for the Senate their imprimatur and their blessing and not only enjoined the
faithful to work and vote for them but also enjoined them not to vote for candidates
whom they had declared anathema. Their agents conducted the campaign first in
whispers and through handbills and newspaper articles and caricatures in the hierarchy's
own press organ, but later the confessional and, in certain areas, the pulpits became
campaign platforms. Religious lay organizations, priests and nuns, schools of both
sexes, took active part in the campaign. This was the church militant and the hierarchy
were successful to a certain extent. They were able to elect at least two senators,
although they failed to prevent the election of one they most hated, abused and
maligned. Pleased and encouraged by their initial victory the hierarchy made a second
try in the general elections. They put up candidates for all national offices, President,
Vice-President, Senators and Representatives. They failed to elect the President,
however, because the hierarchy were hopelessly divided on the Presidency, as seen in
the advertisements which appeared in a section of the local press. Bishops in league
with a Filipino Archbishop, were backing one candidate. Those owing fealty to a foreign
diplomatic representative of the Church went all-out for another candidate. They were all
one, however, in enjoining the faithful from voting for a third candidate, the same one
they had fought bitterly but unsuccessfully in the preceding senatorial elections.
Happily for the winning candidate for Vice-President, they were all united for him. Not
that the other three candidates for the office were reputed enemies of the church. But
one of them, orthodox in his faith and a regular observant, they disliked for having
sponsored and voted for the Rizal Bill. They discarded another supposedly because of
his allegedly non-too-exemplary private life. And as to a third one, an acknowledged
Catholic leader, it was their belief that it would be wasting votes on him as he was never
given a chance to win. The victor, being the sole candidate of the church for Vice-
President, could not but win, thus justifying the name with which he was christened, the
Spanish word for God-given: Diosdado. The church was also successful in electing two
senators. Not that the remaining six were not Catholics, but that they were not
particularly favorites.

WEEK 3
It is thus undeniable that while the Constitution enjoins the state from requiring any
religious test for the exercise of political rights, it is the church that in practice has of late
required such a test according to its own standards.
What was the cause of this sudden political belligerence on the part of the hierarchy?
Why this recent unabashed attempt to dominate the state through the ballot box? No
better answer can be given except that the hierarchy must have reached a decision to
implement the policy announced in Rome in 1948, not exactly by the Vatican, but by the
official organ of a powerful religious organization reputed to be adviser to Popes, in a
leading article which proclaimed the following:
The Roman Catholic Church, convinced through its devisee prerogatives, of being the
only true church, must demand the right of freedom for herself alone, because such a
right can only be possessed by truth, never by error. As to other religions, the Church
will certainly never draw the sword, but she will require that by legitimate means they
shall not be allowed to propagate false doctrine. Consequently, in a state where the
majority of the people are Catholic, the Church will require that legal existence be denied
to error, and that if religious minorities actually exist, they shall have only a de facto
existence without opportunity to spread their beliefs ... In some countries, Catholics will
be obliged to ask full religious freedom for all, resigned at being forced to co-habitate
where they alone should rightfully be allowed to live. But in doing this the Church does
not renounce her thesis, which remains the most imperative of her laws, but merely
adapts herself to de facto conditions, which must be taken into account in practical
affairs ...
This is the essence, not of religious freedom, but of sectarian intolerance: the church,
when a minority in a given country, urges freedom of worship and co-existence along
with others; but when in the majority, it denies that freedom to other faith denominations,
and claims a monopoly on truth. '4 Certainly this was not the view of the founders of the
American Republic when they instituted the principle of religious freedom.
xxx xxx xxx
The policy announced in Rome in 1948, to which I already referred, can find no more
adequate and conclusive refutation than in the following statement by Dr. John B. Bury,
Regius Professor of Modern History, University of Cambridge, in his A History of
Freedom of Thought:
A state with an official religious but perfectly tolerant of all creeds and cults, finds that a
society had arisen in its midst which is uncompromisingly hostile to all creeds but is own
and which, if it had the power, would suppress all but its own. The government in self-
defense decides to check the dissemination of these subversive Ideas and makes the
profession of that creed a crime, not on account of its particular tenets but on account of
the social consequences of those tenets The members of the society cannot without
violating their consciences and incurring damnation abandon their exclusive doctrine.
The principle of freedom of conscience is asserted as superior to all obligations to the
State, and the State, confronted by this new claim, is unable to admit it. Persecution is
the result. (pp. 4748).
What is to happen when obedience to the law is inconsistent with obedience to an

invisible master? Is it incumbent on the State to respect the conscience of the individual
at all costs, or within what limits? The christians did not attempt a solution, the general
problem did not interest them. They claimed the right of freedom exclusively for
themselves from a non-Christian government; and it is hardly going too far to suspect
that they would have applauded the government if it had suppressed the Gnostic sects
whom they hated and calumniated
In any case, when a Christian State was established, they would completely forget the
principles which they had invoked. The martyrs died for conscience, but not for liberty.
Today the greatest of the Churches demands freedom of conscience in the modern

WEEK 3
States which she does not control, but refuses to admit that, where she had the power, it
would be incumbent on her to concede it. (pp. 49-50)
During the two centuries in which they had been a forbid. den t the Christians had
claimed toleration on the ground that religious belief is voluntary and not a thing which
can be enforced. When their faith became the predominant creed and had the power of
'he State behind it, they abandoned this view. They embarked or 'he hopeful enterprise
of bringing about a complete uniformity in men's opinions on the mysteries of the
universe, and began a more or less definite policy of coercing thought. This policy was
adopted by Emperors and Governments partly on political grounds; religious divisions,
bitter as they were, seemed dangerous to the unity of the State. But the fundamental
principle lay in the doctrine that salvation is to be found exclusively in the Christian
Church. The profound conviction that those who did not believe in its doctrines would be
damned eternally, and that God punishes theological error as if it were the most heinous
of crimes, has naturally led to persecution. It was a duty to impose on men the only true
doctrine, seeing that their own eternal interests were at stake, and to hinder errors from
spreading, heretics were more than ordinary criminals and the pain that man could inflict
on them were nothing to the tortures awaiting them in hell. To rid the earth of men who,
however virtuous, were through their religious errors, enemies of the Almighty, was a
plain duty. Their virtues were no excuse. We must remember that according to the
humane doctrine of the Christians, pagan that is, merely human virtues were vices, and
infants who died unbaptized passed the rest of time in creeping on the floor of hell. The
intolerance arising from such views could not but differ in kind and intensity from
anything that the world had yet witnessed.' (pp. 52-53)" [The Church and State Under
the Constitution, Lawyers Journal March 31, 1958, pp. 83-84]
Section 2175 of the Revised Administrative Code does not therefore clash with the no-
religious test guarantee; because the same is indispensable to the very survival of this
republic against religious intolerance and hegemony If the 1971 Coninstitutional
Convention was not profoundly apprehensive of the evil effects of the fusion of the
Church and State, it would not have expressly reaffirmed the inviolability of such
separation, as heretofore stated, in Section 15 of Article XV of the 1973 Constitution.
Such deep conviction of the Filipino people was first given expression in 1899, even
before the beginning of the American regime, by our ancestors who, by reason of their
having been subject to the indignities generated by the union of Church and State, to
insure that such oppression will no longer abide, incorporated expressly in the Malolos
Constitution of the First Philippine Republic that the state recognizes the equality of all
religous worships and the separation of the Church and State" (Art. V, Title 111, Malolos
Constitution).
As a living witness to the religious tyranny during the Spanish regime, Justice Florentino
'Torres of this Supreme Tribunal affirmed before the Philippine Commission in 1900 the
abuses of the friars (see Agoncillo and Alfonso, A History of the Filipino People. 1960
ed. p. 11; 5 quoted in the dissenting opinion of Justice Antonio).
Professor Renato Constantino recounts:
But the fundamental cause for the warning zeal and ensuing corruption of the friars was
their accquisition of property.
A letter to Governor Dasmarinas from Bishop Domingo Salazar dated March 21, 1591.
recounts in passing how the religious in Mexico obtained the revocation of a loyal
prohibition against their owning property. the religious contended that there were too
many disadvantages in having the friars live alone. They proposed the establishment of
houses to be manned by at least four ecclesiastics But this raised the problem of their
support. Declaring that they did not want their missionaries to be a burden to their flock,
the Dominicans and the Augustinians suggested that the best solution ,one estates in
the native would be for the king grant them some estates in the native proposal ran
counter to a royal order that the clergy should not own lands in the Indian villages: but
the religious, through Bishop Salazar himself. succeeded in persuading the king to
revoke his decree.

WEEK 3
xxx xxx xxx
The friars also bought land from tile natives with the money they obtained from church
fees, from trade, or from the profits gained from the produce of lands which utilized
forced labor. With their prestige and power, it was easy for them to pressure villagers
into selling them their lands at very low prices.
Other landholdings were acquired through the foreclosure of mortgages. The story of
how friars became mortgagees often began innocuously enough. Living as they did
among the people, the religious were in the best position to appreciate the possibilities of
agricultural development. Seeing that the obstacle to more extensive cultivation was lack
of capital, many priests entered into partnership with farmers, advancing them money for
seeds, work animals and tools. The priests received half of the harvest.
Although this arrangement favored the money lender who received a fat share without
working, at least he ran the same risk as the farmer of getting little if the harvest was
poor. But when the dependence on priestly capital had become more or less
established, the friars began to demand that their advances be regarded as loans
payable at a fixed rate of interest whether the harvests were good or bad. The risks were
now borne by the tillers alone, and in bad seasons they ran into debt.
When such debts accumulated, the friars forced the farmers to mortgage their land to
them and eventually foreclosed the mortgage. The friars then obtained title to such lands
and the farmer-owners were either driven away or became tenants.
xxx xxx xxx
Some friar lands were obtained through outright usurpation. With the help of corrupt
surveyors and other government official, religious corporations were able to expand their
landholdings. Additional hectares of land outside original boundaries of friar property
were simply gobbled up each time a new survey was undertaken. Many times, the
priests just claimed pieces of land, drew maps of them, had them titled, and set
themselves up as owners.
The original native settlers who had tired the land for years were summarily declared to
be squatters. When the natives protested, they were asked for legal proofs of ownership
of the land in question. More often than not, they could not show any legal document
attesting to their ownership of the land. The natives did not have 'titulos reales since their
claim to the land was based on de facto possession.
xxx xxx xxx
Taxes, tributes, exorbitant rents and arbitrary increases of the same, forced labor and
personal services — all these intensified the hardships of natives who now had to give
up a good part of their produce to their landlords. In addition, some administrators
practiced other petty cruelties which caused much suffering among the people.
In 1745, in the Jesuit ranches of Lian and Nasugbu, Batangas, for example, the people
accused the religious not only of usurping the cultivated lands and the hills that belonged
to them but also of refusing to allow the tenants to get wood, rattan and bamboo for their
personal use unless they paid the sums charge by the friars.
In Bulacan, villagers complained that the religious cheated them out of their lands and
then cruelly proceeded to deny them the right to fish in the rivers, to cut firewood, and to
gather wild fruits from the forests. The friars would not even allow their carabaos to
graze on the hills since the religious now claimed all these areas as their own. "In Cavite,
Manila and Bulacan, small landholders complained that since the friars, owned the land
through which the rivers passed, they had to agree to the friars' terms if they wanted
water for irrigation purposes.

WEEK 3
Lessees of friar lands protested bitterly that their landlords raised their rents almost
every year and particularly whenever they saw that through the farmers' labor the land
had become more productive. In some cases, they even imposed a surtax on trees
planted by the tenants. When they accepted rental payments in kind, the administrators
of the friar estates arbitrarily fixed the prices of these products, naturally at lower than
prevailing prices.
Aside from institutional exploitation, exactions of a personal nature were rampant.

Curates charged a bewildering number of fees for all sorts of rites, from baptism to
burial. The natives paid even if it meant selling their last possessions because they had
been taught that such rites were indispensable to the salvation of their souls.
Friars made money selling rosaries, scapulars and other religious objects. They required
from their flock all kinds of personal services and gifts of food for the convent table.
Priests often administered corporal punishment, usually whippings on natives who dared
disobey their orders or disregard their caprices. Unmarried girls were compelled to report
to the convent to pound rice and sweep the church floors. The large number of Filipinos
today who have a priest somewhere in their family trees attests to the frequency with
which the vows of celibacy were transgressed.
Of course, the cruelty capriciousness and frequency of abuses depended on the

character of the individual priest - and there were good and bad. However, it cannot be
denied that the virtually unchallenged power of the friar in most communities had a
corrupting influence on most.
The people's mounting resentment led them to commit various acts of defiance, to
refuse to pay the unjust taxes imposed by friar estate administrators, and finally to resort
to armed rebellion. So serious were the clerics abuses that by 1751, the king was moved
to issue a royal decree ordering local government authorities
to exercise hereafter the utmost vigilance in order that the Indians of the said villages
may not be molested by the religious, and that the latter should be kept in check in the
unjust acts which they may in future attempt ...
But by that time such a directive could hardly be enforced. The friars had become too
powerful not only because of their spiritual hold over both the Spanish officials and the
natives, but also by virtue of their established economic power. In addition, they had
become a ubiquitous presence in the local machinery of administration.
Against the power of his friar landlord, a tenant found it impossible to prosecute his
interests or have his complaints heard. A poor tenant could not afford the costs of a
lawsuit, granting that he knew the first thing about litigation procedures. Besides, what
chance had he against such a powerful figure as a friar? If a friar wanted a tenant
evicted, the cleric could easily prevail upon a judge to issue the order. and he could as
easily avail himself of government forces to execute the decision. Recalcitrant tenants
were often evicted en masse there were so many landless peasants to take their places,
anyway.
Exploitation, with its concomitant personal cruelties and abuses, was part and parcel of
the imperative of property expansion once the friars' right to property had been
recognized. Economic power enhanced political power, and political power was used
time and again to expand economic power and to oppose any attempts by government
to frustrate economic expansion.
By the end of the Spanish occupation, the friar were in possession of more than 185,000
hectares or about one-fifteenth of the land under cultivation. Of this total, around
110,000 hectares were in the vicinity of Manila.
xxx xxx xxx

WEEK 3
The early ascendancy of the Church over the State was made possible by the success
with which the friars undertook, almost single-handedly, the pacification of t lie country.
Since this success was due in large measure to the native's acceptance of the new
religion, Spanish power in most communities rested on the influence of the religious. The
prevalent opinion at that time that 'in each friar ill the Philippines the king had a captain
general and a whole army is a recognition of this fact.
Moreover, in more than half of the villages in tile islands there was no other Spaniard,
and therefore no other colonial authority the friar. This state of affairs obtained almost to
tile end of Spanish rule.
Other factors contributed to friar ascendancy. The friars knowledge of the land and of the
people was invariably superior to that of the government functionary. The Spanish
alcaldes mayores were dependent on the religious not only because t he latter spoke I
lie native dialects but also because the tenure of these government officials was
temporary while that of the parish priest was more or less permanent.
A more fundamental basis of the great political power of the religious was the Spanish
concept of the union of Church and State. The friar was entrusted with an ever-growing
number of civil duties within the community until there was no aspect of community life in
which he did not have a hand.
He was inspector of primary schools, and of taxation; president of the board of health,
charities, of urban taxation, of statistics, of prisons; formerly, president of the board of
public works. He was a member of the provincial board and the board for partitioning
crown lands. He was censor of the municipal budget, of plays comedies and dramas in
the native language given at the counselor of matters in regard to the correctness of
cedulas, municipal council, the police force, the schools, and the drawing of lots for army
service.
Economic power through landholding and through investments in foreign and internal
trade, political power through extensive participation in government, and spiritual control
over both the native population and fellow Spaniards — all these combined to make the
friar the principal figure in each community, and the Church the dominant power in the
country.
xxx xxx xxx
Time and again, governors complained of the abuses of the clergy and appealed to the
Spanish monarch to curtail their powers. As early as 1592, Governor Dasmarinas was
already railing against friar power. He wrote:
And the friars say the same thing — namely, that they will abandon their doctrinas (i.e.,
Christian villages) if their power over the Indians is taken away. This power is such that
the Indians recognize no other king or superior than tile father of the doctrine and are
more attentive to his commands than to those of the governor, Therefore the friars make
use of them by the hundreds, as slaves, in their rowing, works, services, and in other
ways, without paying them, and whipping them as if they were highway men. In
whatever pertains to the fathers there is no grief or pity felt for the Indians; but as for
some service of your Majesty, or a public work, in which an Indian may be needed, or as
for anything ordered from them, the religious are bound to gainsay it, place it on one's
conscience, hinder it, or disturb everything.
In 1636, Governor Sebastian Hurtado de Corcuera wrote the king objecting to the
increase in the number of religious in the islands. According to him, the friars had
reduced the natives to virtual slavery by forcing them to sell to the religious at their rice
and cloth at prices set by the latter who then monopolized the business in these items.
And yet, the governor complained, when assessments of rice, cloth d wine were levied
on the people by the government, these same friars objected on the ground that the
natives were too poor to pay what was demanded.

WEEK 3
xxx xxx xxx
Abuses such as the friar's excessive interference in the natives' daily life, personal insult,
corporal punishment such as whipping and lashing of both men and women for the
slightest offense, onerous fees for confessions and other religious rites, sexual offenses
against native women, and the native virtual reduction to a slave and servant of the friar
— all these were being committed as early as the second or third decade of occupation.
But these wrongs were still inflicted and also accepted on an individual basis and they
varied in intensity and frequency depending on the personality of each priest.
Furthermore, since punishments were meted out on a variety of individual offenses,
there was no common grievance strong enough to call forth united action, although there
is no doubt that resentment were building up.
But when the religious orders began to acquire property, their abuses took on a different
complexion. As landlords, they became economic exploiters whose abuses threatened
the economic survival of the natives. Such abuses were no longer inflicted by an
individual on separate individuals. Neither were they occasional or dependent on a
particular friar.
Exploitation was basic and permanent, and enforced by an institution on groups of men
constituting practically the entire community. Moreover, this kind of exploitation could not
be justified in any way as part of the friar's religious mission. All these factors
transformed isolated resentments into common and bitter grievances that erupted in
revolts against the friars.
That native disaffection with the religious orders had a profoundly material basis is
proved by the fact that discontent exploded in revolts precisely in areas where friars
were known to hold large tracts of agricultural land. In the provinces of Cavite, Laguna,
Manila, Bulacan and Morong (now Rizal), the religious owned more than one-half of the
total agricultural land. It is not mere coincidence that these provinces experienced many
agrarian uprisings and became the strongholds of the Philippine Revolution.
To summarize: the attitude of the natives to the Church in the course of its economic and
political ascendancy changed from initial obedience due to awe and fear; to loyalty and
subservience arising from acceptance of the Catholic religion and experience with the
power of priests within the colonial hierarchy, but accompanied by personal
resentments; to generalized or group hostility because of common experience with
economic exploitation by the friars; and finally, to the violently anti-friar sentiments of the
masses during the Revolution (see Chapters 9 and 10) which resulted in demands for
their expulsion and in the rise of an indigenous Church.
It is very clear that this transformation in the realm of consciousness was a response to
a material stimulus — the transformation of the Church from a colonial accessory to the
principal apparatus of colonial appropriation and exploitation" (The Philippines — A Past
Revisited, 1975, pp. 66 to 80).
Again, we have to summon the prodigious intellect of that great nationalist, Claro M.
Recto, himself a victim of the most vicious campaign against his candidacy in 1957
waged by the dominant Catholic church, which refused to heed the injunction of Christ,
explicit from His answer to the Pharisees when they attempted to entrap Him into
opposing the power of Rome, to "render unto Caesar the things that are Caesar's and
unto God the things that are God's". Recto, with his keen and prophetic mind, easily
discerned the dangers posed by church interference in our democratic system. In his
speedch delivered on February 19, 1960 on the occasion of the conferment upon him of
the degree of Doctor of Humanities, honoris causa by the Central Philippine University
Iloilo City, Recto concluded his argument against the unholy alliance of Church and
State, thus:
It is to be deplored that in recent years the most numerious Church in this country, not
satisfied with the hold it has on the fealty of four-fifths of the nation as no government
has ever enjoyed or will enjoy here, has made use of its privileged position by

WEEK 3
demanding from candidates to public office, particularly the elective ones, certain
religious tests and pledges of allegiance. The immediate purpose, of course, is to
acquire through policy-making government officials, control of the public affairs and
ultimately to establish here a truly theocratic state, which, according to Lord Acton, a
liberal Catholic and great English scholar, is 'the most dangerous form of absolutism.
We have been witnessing from time to time the organization of sectarian professional
groups. We already have a lawyers sectarian association, and only recently certain local
physicians who, claiming to believe that they should consider religion in the practice of
their profession, have grouped themselves into a sectarian association , and only
recently certain local physicians who, claiming to believe that they should consider
religion in the practice of their profession, have grouped themselves into a sectarian
association of apothecaries organized one of these days, and other similar ones, until
there shall not be a single profession or occupation without its own sectarian
association.
xxx xxx xxx
At the time the most numerious Church in this country moved onto the political stage, a
young Filipino priest, reputedly an intellectual in his own religious order, made in the
course of a public address at the Luneta, with the evident placet of the corresponding
hierarchy — qui tacet consentire videtur — the most daring proposal that there should
be union of Church and State, with the Church assuming naturally the leadership inthe
unholy partnership. such a proposal is most likely to happen should the most numerious
Church obtain the necessary control of the legislature.
In the last three elections the most numerous Church made its influence felt. There was
a small chosen group of ambitious political upstarts — the youth elite, so to speak —
who took to the field with the unmistakable blessings and patronage of their Church's
hierarchy. Although this group did not carry officially its sects banner, it was to all intents
and purposes just that with no pretense at being anything except it was Identified with
the Church in question and it received the latter's unqualified and unstinted support
through pulpit and confessional and through religious schools and associations all over
the country, Priests and nuns in charge of private schools were particularly in their newly
found militancy. The haloed candidates of this group were presented to the electorate as
the honest among the holy and they carried the standard, albeit unofficial of their
Church, the implication was that at least for the voter that belongs to it, they were the
only ones fit, under bulls and encylclicals, for public office.
The irony of all this is that while the government is enjoined by the Constitution from
imposing or requiring religious test to any office, it is a religious establishment, the that
incrusions in the country, that is doing so. Although this religious establishment did not
fare as it had expected iii the last three elections. t here is no doubt that its incursions
into the political field should not be taken lightly. If these inroads are not curbed now, th
day is not far off when we shall see the halls of congress being used to proselytize the
nation and the people legislated into one religion; faith, An established church. which is
another name for union of Church and State, consecrated by approriate constitutional
ammendement, would be the tragic result
xxx xxx xxx
Origin, one of the early Fathers - he lived in the 3rd century - admonished that
'Christians should not take part ill the government of the State, but only of the divine
nation'. 'that is, the Church; and rightly so, because most people regard politics as
'worldly' and unworthy of any really holy man.' This same doctrine, according to Bertrand
Russell 'is implicit in Saint Augustines City of God o much so that it led churchmen, at
the time of the fall of Western Empire, to look on passively at secular disasters while
they exercised their very great talents, in Church discipline, theological controversy, and
the spread of monasticism.

WEEK 3
Writing to a correspondent in Constantinople, Gregory the Great said. 'What pleases the
most pious emperor, whatever, he commands to be done, is in his power ... As he
determines, so let him provides. What he does, if it is canonical we will follow; but if it is
not canonical we will bear it, as far as we can without sin of our own ... Rulers should not
be criticized, but should only be kept alive to the danger of hell fire if they fail to follow
the advise of the church.' Pope Nicholas I of the 8th century replied to an angry letter of
Emperor Michale III: 'the day of King-Priests and Emperor-Pontiffs is past; Christianity
has separated the two functions.'
Gelasius, a pope in the fifth century, laid down the principle of separation of Church and
State in the following words:
... It may be true that before the coming of Christ, certain persons ... existed who were at
the same time priests and kings, as the holy scripture tens us Melchizedech was.
... But, after the coming of Christ (who was Himself both the true king and the true
priest), no emperor thereafter has assumed the title of priest, and no priest has seized a
regal throne ... He separated the kingly duties and powers from the priestly, according to
the different functions and dignity proper to each ... The soldier of the Lord should be as
little as possible entangled in secular business, and that one involved in secular affairs
should not be seen occupying the leadership of the church.' Masters of Political
Thoughts by Michael B. Foster, vol. 1, pp. 231-232.)
Pope Leo XIII, in his Encyclical 'Immortal Dei (November 1885) said:
It is generally agreed that the Founder of the Church, Jesus Christ, wished that the
spiritual power to be distinct from the civil, and each to be free and unhampered in doing
its own work, not forgetting, however, that it is expedient for both, and in the interest of
everybody, that there be a harmonious relationship.
xxx xxx xxx
Reichersberg another famous churchman of the twelfth century, who supported the
Pope in the Investiture controversy, said:
Just as the emperors sometimes arrogated to themselves functions belonging to the

priesthood and the church; so they (the priests) on the other hand imagine that their
priesthood confers on them also an imperial, or more than imperial power
... What then will have become of those two swords of the Gospel, if the apostle of Christ
shall be all, or if the Emperor shall be all? If either the Empire or the priesthood shall be
robbed of its strength and dignity, it will be as though you were to take one of the two
great luminaries from the sky. (Id, p. 235.)
Don Luigi Sturzo a distinguished Catholic Italian scholar, speaking of the separate
functions of Church and State, says: 'Every attempt to overstep such limits, from either
side, has violated the laws of nature and those of revelation. (Church and State, vol. I, p.
28).
Lord Acton in his 'Political Philosophy,' pp. 43-44, remarked:
If a Church is united with the State the essential condition of freedom vanishes. It
becomes officiated. And those who govern the Church are tempted to divert its influence
to their own purposes. Similarly, the support of the Church dangerously increases the
authority of the State, by giving a religious sanction to the behests of the State. This
increases the danger of depositism.
Under the terms of the Lateran Treaty with Italy, which was concluded in 1929, the Holy
See not only agreed that Catholic organizations would abstain from politics, but it
declared that 'it wishes to remain, and it will remain extraneous to all temporal disputes
between nations and to all international congresses convoked for the settlement of such

WEEK 3
disputes unless the contending parties make a concordant appeal to its mission of
peace; nevertheless it reserves the right in every case to exercise its moral and spiritual
power.'
In the 'Report on Church anti State' (Message and Decisions of Oxford [19571 on
Church, Community, and State, pp. 27-30), it was declared that 'The Church as the
trustee of God's redeeming Gospel and the States as the guarantor of order, justice, and
civil liberty, have distinct functions in regard to society. The Church's concern is to
witness to men of the realities which outlast change because they are founded on the
eternal Will of God. The concern of the State is to provide men with justice, order, and
security in a world of sin and change, As it is the aim of the Church to create a
community founded on divine love, it cannot do its work by coercion, nor must it
compromise the standards embodied in God's commandments by surrender to the
necessities of the day. The State, on the other hand, has the duty of maintaining public
order, and therefore, must use coercion and accept the limits of the practicable.
xxx xxx xxx
To allow an ecclesiastic to head the executive department of a municipality is to permit

the erosion of the principle of separation of Church and State and thus open the
floodgates for the violation of the cherished liberty of religion which the constitutional
provision seeks to enforce and protect. For it requires no in-depth analysis to realize the
disastrous consequence of the contrary situation — allowing ecclesiastics to run for a
local position. Can there be an assurance that the decisions of such ecclesiastic in the
exercise of his power and authority vested in him by reason of his local position will be
clothed with impartiality? Or is not the probability that his decision as well as discretion
be tainted with his religious prejudice, very strong? For considering the objectives of his
priestly vocation, is it not incumbent upon him to color all his actuations with the
teachings and doctrines of his sect or denomination? Is there an assurance that in the
appointment to appointive municipal positions the religious affiliation of the competing
applicants will not play the decisive factor? If the ecclesiastic elec to a municipal office of
mayor is a Catholic, would the chances of an heretic an Aglipayan, a Protestant or an
Iglesia ni Kristo adherent be as equal as those of a Catholic?
Pursued further, in the solemnization of marriage, how would he resolve the conflict
between civil laws and his religion? Will he conduct the same under the tenets of his
religion or under the commands of civil laws? Will he be willing to solemnize the
marriage of applicants who both do not belong to his sect Will he be imposing the
requirement, assuming that he is a Catholic, that the non-Catholic party should agree
that the children of the union shag be brought up according to the Catholic dogma
Where the applicants are first cousins, will he be willing to solemnize the marriage,
considering that under civil law, the same is prohibited, but under Catholic rules, the
same is allowed? Where obedience to the law of the State is inconsistent with obedience
to the law of his Church, how will he act? Such questions could be asked also of the
municipal officials who are ministers of other religions or sects
Again, in the exercise of his preliminary investigation authority, how would he decide
cases under investigation where the crimes involved are violations of Article 132
(Interruption of religious worship) and Article 133 (Offending the religious feelings)? Will
not his religious convictions and prejudices color his actuations?
Also, in the matter of permits for the use of public places for religious purposes, how
would he treat applications filed by atheists or by religious sects other than his? Could
there be an assurance of strict impartiality?
What alarms me more, however, is the effect of the majority opinion — allowing
ecclesiastics to run for a public office in the local government — on the present posture
of the Churches in the present political situation. For I entertain very strongly the fear
that with such ban lifted, it will not be too long from today that every municipality in the
country will be headed by a priest or minister. And the result of such a situation need not
be emphasized any further.

WEEK 3
Recto had expressed it in no uncertain terms. Recto ventured to foretell in the same
speech earlier quoted:
... in the light of the events of the recent past, unless the hierarchy of the most numerous
Church withdraws definitely and completely from the field of its newly found activities,
the nation will eventually find itself sucked into the maelstrom of a religion political war
with the said Church on one side and on the other a powerful alliance not only among
those who belong to other religious denominations, but also a sizable portion of its
faithful who, because of nationalism or civil libertarianism would refuse to follow their
spiritual leaders in such a purely mundane crusade. It is irrelevant whether the
numerous church or its allied opponents emerge victorious in such a battle, for the
outcome will be the same as in the ones between Hildebrand and Henry IV and their
respective successors, and between the thirteenth-century popes and the Holienstaufen
'the usual outcome.' in the words of Toynbee 'of all wars that are fought to the bitter end
the nominal victor succeeded in dealing the death-blow to his victim at the cost of
sustaining fatal injuries himself; and the real victors over both belligerents were the
neutral tertii gaudentes. In our case, the tertii gaudentes, the happy onlookers, if I may
be allowed to translate these Latin word freely ' would be the enemies of our nation and
people, the real beneficiaries of such a tremendous national misfortune.
Finally, the majority opinion will precipitate small religious wars in every town. We have
seen in cases decided by this Court how the religious fanatics have persecuted religious
sects in some towns giving rise to bloody episodes or public disturbances.
It would seem that any human activity touching on the religious beliefs and sentiments of
the people easily agitate their emotions, prejudices and passions, causing even the
ordinarily reasonable and educated among them to act intolerantly.
Indeed, in one case that reached this Court, Mr. Justice Jose P. Laurel, alarmed by the
bigotry of a Roman Catholic priest so obvious from his actuations, articulated in his
dissenting opinion the following thoughts:
Why, may I ask, should the mere act of passing of the corpse or funeral cortege in or
through a private property be characterized asnotoriously offensive to the feelings of any
religion or its adherents or followers?
The Lord gave, and the Lord hath taken away; blessed be the name of the Lord (Job,
1.21).
In this case, the Lord has recalled the life of one of His creatures; and it must be His
wish that the remains shall have the right of way that they may be buried 'somewhere, in
desolate wind swept space, in twilight land, in no man's land but in everybody's land.'
Rather than too many religions that will make us hate one another because of religious
prejudices and intolerance, may I express the hope that we may grasp and imbibe the
one fundamental of all religions that should make us love one another. (People vs. Baes,
68 Phil. 203 [l939]).
In the aforesaid case of Baes, a Roman Catholic priest attempted to prevent a funeral
held in accordance with rites of the sect "Church of Christ" from passing through the
Catholic churchyard fronting the Roman Catholic Church of Lumban, Laguna. Having
failed allegedly because the accused used force and violence, the priest filed a
complaint against the former for violation of Article 133 of the Revised Penal Code,
which, however, was dismissed by the lower court upon motion of the fiscal on the
ground that the acts alleged in the complaint did not constitute the offense against
religious feelings. The intolerant priest however had his day before this Court which, on
appeal, ruled otherwise, declaring that the offense to religious feelings, under the factual
circumstances of the case, must be judged according to the feelings of the Catholics and
not those of other faiths. Justice Jose P. Laurel, joined by Justice Imperial, strongly
dissented from the aforesaid conclusion of the majority of the Court, stating that:

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... As I see it, the only act which is alleged to have offended the religious 'feelings of the
faithful' here is that of passing by the defendants through the atrio of the church under
the circumstances mentioned. I make no reference to the alleged trespass committed by
the defendants or the threats imputed to them because these acts constitute different
offenses (Arts. 280, 281 and 282-285) and do not fall within the purview of Article 133 of
the Revised Penal Code. I believe that an act, in order to be considered as notoriously
offensive to the religious feelings, must be one directed against religious practice or
dogma or ritual for the purpose of ridicule; the offender, for instance, mocks, scoffs at or
attempts to damage an object of religious veneration it must be abusive, insulting and
obnoxious Viada Commentaries al Codigo Penal, 707, 708, vide also Pacheco, Codigo
Penal, P. 259).
Why, may I ask, should the mere act of passing of the corpse or funeral cortege in or
through a private property be characterized as notoriously offensive to the feelings of
any religion or of its adherents or followers?
The Lord gave, and the Lord hath taken away; blessed be the name of the Lord (Job.
121). "In this case, the Lord has recalled the life of one of His creatures; and it must be
His wish that the remains shall have the right of way that they may be buried
'somewhere, in desolate, wind swept space, in twilight land, in no man's land but in
everybody's land." Rather than too many religions that will make us hate one another
because of religious prejudices and intolerance, may I ex press the hope that we may
grasp and imbibe the one fundamental of all religions that should make us love one
another.
It must decline to accept the statement made in the majority opinion that 'whether or not
the act complained of is offensive to the religious feelings of the Catholics, is a question
of fact which must be judged on tv according to the feelings of the Catholics and not
those of other faithful ones, for it is possible that certain acts may offend the feelings of
those who profess a certain religion, while not otherwise offensive to the feelings of
those professing another faith.' (emphasis is mine). I express the opinion that the offense
to religious feelings should not be made to depend upon the more or less broad or
narrow conception of any given particular religion, but should be gauged having in view
the nature of the acts committed and after scrutiny of all the facts and circumstances
which should be viewed through the mirror of an unbiased judicial criterion. Otherwise,
the gravity or leniency of the offense would hinge on the subjective characterization of
the act from the point of view of a given religious denomination or sect and in such a
case, the application of the law would be partial and arbitrary, withal, dangerous,
especially in a country said to be 'once the scene of religious intolerance and
persecution' (Aglipay vs. Ruiz, 35 Off. Gaz. 2164) [pp 208-210].
In United States vs. Dacquel (36 Phil. 781 119171), accused barrio lieutenant halted and
attacked, with the help of three men, some of the Roman Catholic inhabitants of the
barrio of Sococ in the Province of Ilocos Sur who were then having a religious
procession without the barrio lieutenant's consent or authorization which seemed to have
angered him. He was convicted of grave physical injuries inflicted by him during that
incident upon a participant, a nine-year old girl.
The case of Balcorta (25 Phil. 273 [19131) reveals that an Aglipayan, who, uninvited,
entered a private house, where services of the Methodist Episcopal Church were g
conducted by 10 to 20 persons and who then threatened the assemblage with a club,
thereby interrupting the divine service, was found guilty under Article 571 of the old
Penal Code (similar to Art. 133, Revised Penal Code).
Again, in (56 O.G. 2371 [1958]), its factual circumstances reveal that the complaint filed
by the chief of police alleged that while devotees of the Iglesia ni Kristo were holding a
religious ceremony in a certain house in Dinalupihan, the accused stopped in front
thereof, made unnecessary noise, and shouted derogatory words against the Iglesia ni
Kristo and its members, and even stoned the house.

WEEK 3
Ignacio vs. Ela (99 Phil. 347 [1956]) arose because of the act of the mayor of Sta. Cruz,
Zambales, in permitting the members of the Jehovah's Witnesses to hold their meeting
at the northwestern part of the plaza only, instead of at the kiosk in the public plaza. The
actuation of the mayor was pursuant to a policy he adopted even before the request
made by the members of the Jehovah's Witnesses, it appearing that the public plaza,
particularly the kiosk, is located at a short distance from the Roman Catholic Church,
causing some concern, because of the proximity, on the part of the authorities; hence, to
avoid disturbance of peace and order, or the happening of untoward incidents, they
deemed necessary to prohibit of meeting of its members, especially so, that in the
instant case, the tenents of petitioners' congregation are derogatory to those of the
Roman Catholic Church. The respondent mayor was sustained by this Court, with four
members of the Court dissenting.
The case of U.S. vs. Apurado, et al. (7 Phil. 422 [1907]) shows that while the municipal
council of San Carlos, Occidental Negros was in session, some 500 residents of the
town assembled near the municipal building. Upon the opening of the session a large
number of those assembled about the building crowded into the council chamber about
the building crowded into the council chamber and demanded the dismissal from office
of the municipal treasurer, the secretary and the chief of police, and the substitution in
their places of new officials. The council acceded to their wishes and drew up a formal
document setting out the reasons for its action, which was signed by the councilors
present and by several leaders of the crowd. It appears that the movement had its origin
in religious differences between residents of the municipality. The petitioners believed
that the officials above-named should not continue to hold office because of their
outspoken allegiance to one of the factions into which the town was at that time divided.
(This Court reversed the decision, of the trial court convicting them of sedition).
In People vs. Reyes, et al (CA-G.R. No. 13633-R, July 27, 1955), the accused Reyes,
who was the chief of police of the town of San Esteban, Ilocos Sur, ordered his
policemen to stop Minister Sanidad of the Iglesia ni Kristo, which was then holding a
meeting at the public plaza, from continuing with his sermon when the latter attacked in
the course of his sermon the Catholic and Aglipayan churches, as well as the women of
San Esteban, Ilocos Sur. Accused were convicted of violation of Art. 131 of the Revised
Penal Code.
Again, in People vs. Migallos (CA-G. R. No. 13619, August 5, 1955) wherein the
accused was convicted by the Court of First Instance and Court of Appeals of the
offense defined under Art. 133 of the Revised Penal Code, the facts show that Minister
Tagoylo of the Iglesia ni Kristo sect was stoned by the accused while the former was
preaching or spreading his belief on a public road before a crowd of around 500
persons.
People vs. Mandoriao (CA-G.R. No. 12114, February 25, 1955, 51 O.G. 4619) started
with a rally organized by the Iglesia ni Kristo, attended by about 300 people, 50 of whom
belonged to the said sect at a public park in Baguio City. One of the ministers of the sect
expounded on a topic asserting that Christ was not God but an ordinary man, causing
the crowd to become unruly, whereupon, appellant went up the stage and grabbed the
microphone challenging the minister to a debate. (The lower court convicted appellant of
violation of Art. 133 of the Revised Penal Code but the Court of Appeals acquitted him).
In People vs. Gesulga (1 C. A. Rep. 103), appellant, a protestant preacher of the

Seventh Day Adventist, was found guilty by the lower court of offending religious
feelings. The Court of Appeals reversed the conviction. The fact show that some
Catholic elements in Leyte conducted a barangay, similar to the rosary, which continued
with a procession outside. The procession with big attendance had to pass along the
barrio road in the middle of which a Protestant meeting was being held under a permit
issued by the municipal mayor. On account of said meeting, the procession could not
pass through. Those attending the procession requested from, but were denied passage
by, the appellant who was then speaking at the meeting (in the course of which he
uttered words notoriously offensive to the feelings of the Catholic faithful). The
processional participants who were singing Ave Maria in high pitch, took another road,
while others passed under the nearby houses. When the procession was about 10
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meters from the meeting place, appellant temporarily stopped talking and resumed his
talks after the procession had passed.
In the case of People vs. Tengson [(CA) 67 O.G. 1552], the criminal act complained of
was the performance by the appellant of burial rites inside the Roman Catholic Cemetery
in accordance with the rules and practices of the sect called "Christ is the Answer".
There was a permit for the burial in question. Convicted by the lower court, appellant
was acquitted on appeal.
The inevitable consequence of the election or appointment of priests or ministers of

religion to municipal public offices would be the appropriation of public funds for the
payment of their salaries and their utilization of public property, which may likewise be
employed, directly or indirectly, for the benefit or support of any sect church,
denomination, sectarian institution, or system of religion - a palpable violation of the
constitutional prohibition against the appropriation of utilization of public money or
property for such religious purposes (Par. 2, Sec 18, Art. V III, 197 3 Constitution).
In sum, if the disqualification prescribed in Section 2175 of the Revised Administrative

Code were nullified, three basic constitutional guarantees would thus be violated —
Section 8 of Article IV, Section 18(2) of Article VIII, and Section 15 of Article XV of the
1973 Constitution.
The newly elected Head of the Catholic church, Pope John Paul 1, upon his installation
on September 1, 1978, enjoined his Catholic flock to strictly adhere to the Jeffersonian
concept of separation of Church and State.
In its editorial of September 6, 1978, the Times Journal (p. 4) commented on the
aforesaid Papal pronouncement:
Scholars the world over hailed the statement of Pope John Paul I affirming the
separation of church and state as 'of historic importance.' Some even detected in it a hint
of Thomas Jefferson, the American founding father who worked the concept into the
U.S. Co institution.
To Filipinos steeped in this constitutional tradition, the Pope' remarks on this point in his
address before a group of diplomats are very significant. This is especially true in the
face of the over zealousness of some members of the clergy whose activities in th name
of social action tend to endanger nationality
While it could be said that the provision in the Philippine Constitution on the separation
of church and state has traces of strong Jeffersonian influence upon the framers of the
fundamental charter, the sad experience of the Filipinos at the hands of the meddling
friars during three centuries of Spanish occupation made them more sensitive to and
acutely aware of the concept. The rejection of a state supported church during the
Philippine Revolution only served to enhance this theory.
The Pope said the roles of government and church were of 'two orders,sion and
competence' of a 'unique' and 'special character.
The church's responsibilities 'do not interfere with purely temporal technical apolitical
affairs, which are matters for ... governments,' he said.
Significant, too, are the comments on the papal statement by such religious leaders as
Rev. Paul Boyle head of the Passionist Fathers. The Pope,' according to Boyle 'not only
states it as a principle, but as a desirable one.'
What we have here,' according to Rev. Donald Campton, a Jesuit official and one-time
editor of the national Catholic weekly, America, 'is not just a statement but a pledge that
both on the national and international levels, we don't want a state church.'

WEEK 3
With the concept strongly reiterated and the lines once again clearly drawn, it is to be
hoped that we should not forget, rendering unto Caesar what is Caesar's and to God
what is God's. The Pope has made his pledge, let no member of the Church make
mockery of it.
Another Filipino historian, Carlos Quirino, writing about Jesuit- educated Ambassador
Leon Ma. Guerrero, author of the prize- winning "The First Filipino", a biography of Rizal,
characterized the Spanish friar as "the most dangerous of man — one combining great
power with a sense of devotion to his mission — ... He, then, became the great
antagonist of the first Filipino, Jose Rizal."
A significant fact seems to indicate a dangerous attempt on the part of the Catholic
hierarchy in the Philippines to subvert the laws of the Republic, if not the Republic itself.
For several years now, the ecclesiastical tribunal has been annulling marriages, despite
the fact that such marriages can no longer be annulled under our laws. Even marriages
of spouses with children had been nullified. It should be emphasized that the power to
annul marriages in the Philippines is vested only in the courts established by the State,
and not in ecclesiastical tribunals. The grounds for annulment of marriages void ab
initio or merely voidable, are expressly enumerated in the Civil Code.
In a newspaper interview, the executive vice official of the Metropolitan Matrimonial

Tribunal of the Archdiocese of Manila, in re-affirming the position of the Catholic Church
that it is which are considered void ab initio is annulling only marriage he rules of the
Church, would not specify the under t canonical grounds for annulment of marriages
considered void from the very beginning by the Church, stating merely that they are
"varied and diverse ... all of them are qualified terms with specific meanings very
different from the layman's understanding" (Times Journal, Modern Living, p. 1, Oct. 3,
1978). This answer is evasive. Such evasion is compounded by the fact that such
annulments by the Church are not published in any Catholic organ to enable the public
to know the facts of each case and the reasons for annulling the marriage, unlike the
cases decided by the civil courts.
However, Father Mario Nepomuceno, a Jesuit marriage counselor, stated before the
Interim Batasang Pambansa committee conducting hearings on the divorce bills, that the
Philippine Catholic church has in fact annulled many marriages on the grounds of "moral
incompatibility" or emotional immaturity on the part of one or both spouses (Daily
Express, pp. 1-2, Nov. 7, 1978). This ground finds its counterpart in Nevada and Mexico,
where "quickie" divorces are the fashion. The spouses, Mr. and Mrs. Jose M. Meily both
stated in their column "Husband and Wife" that the Catholic Church annuls marriages on
the ground of lack of full or sufficient consent on the part of the spouses, which consent
may be impaired by ignorance, no intention to co-habit, lack of consciousness at the
time of the marriage either caused by drugs or alcohol, error, simulation of consent,
conditional consent, force and/or fear, and lack of due discretion (Philippine Panorama,
p. 56, Nov. 12, 1978). Except for force and fear, all the other qualifications as to the
existence of full consent are not found in our civil laws.
The statement of Cardinal Sin that the State should not interfere with Church rulings on
marriages solemnized in church is a defiance of the law and the authority of the Republic
of the Philippines; because it implies that the rules of the Church on the validity or nullity
of marriages solemnized in church shall prevail over the laws of the State on the subject
(see "Bulletin Today", pp. I & 12, Oct. 5, 1978). This statement of Cardinal Sin belies his
affirmation that the Church does not interfere with or defy civil laws but respects them
(see "Bulletin Today", supra).
There is need of emphasizing that marriage is a social institution — not just a mere
contractual relation — whose sanctity is recognized and protected by the State, and is
not a matter within the exclusive jurisdiction of the Church. The solidarity of the Filipino
family and sanctity of the marital bond are the primary concern of the State, perhaps
even more than they are of the Catholic church, as the family unit constitutes the
strength of the nation. The Church tribunals in annulling marriages, is usurping the
power of the courts established by the State. Even the authority of the priests and

WEEK 3
ministers to solemnize marriages is granted by State law, without which no priest or
minister of any religion or church or sect or denomination can legally solemnize
marriages. If the right of the Catholic church to annul marriages or to declare marital
unions as void ab initio under its rules were conceded, then there is no reason to deny
the same right to the ministers of the Protestant church and other religious sect or
denomination.
The annulment by the Church does not render the spouses exempt from possible
prosecution for bigamy, adultery or concubinage, should they contract a second
marriage or have carnal knowledge of, or co-habit with persons other than their
legitimate spouses of the first marriage which remains lawful in the yes of the laws
validly promulgated by the State.
If the Church tribunal believes that the marital union is a nullity from the very beginning
under the civil laws, then the Church should advise the parties to go to the civil courts.
But the Church should not arrogate unto itself State authority and the jurisdiction of the
courts created by the State.
To stress, in our country, there is only one sovereign, the Republic of the Philippines,
and not the Roman Catholic Church or any other church. Only the sovereign, the
Republic of the Philippines, can validly promulgate laws to govern all the inhabitants of
the Philippines, whether citizens or aliens, including laws concerning marriages, persons
and family relations. And only the courts established by the sovereign, the Republic of
the Philippines, can apply, interpret and enforce such laws. The exercise by the Catholic
church in promulgating rules governing marriages and defining the grounds for
annulment of the same, as well as establishing ecclesiastical tribunals to annul
marriages or to declare marriages void ab initio is a usurpation of the sovereign power of
'the State.
While any Church or religious sect or denomination has the right to exist independent of
the Constitution and the laws of the country, such Church or religious sect or
denomination shall obey the Constitution and the laws of the State where it exists and
operates. The Church or any religious sect or denomination can invoke the protection of
the State whenever its existence and the persons of its heads, priests, ministers and
properties are imperilled or violated. But the Church or religious sect or denomination
has no legal or ecclesiastical power to subvert the State and its laws. No Church or any
religious sect or denomination can repeal or modify the provisions of the laws validly
promulgated by the State. hat the existing laws on annulment
If the Church believes t of marriages need to be amended, it should suggest such

amendments; but it should not enact or promulgate such proposed amendments.
The good Cardinal Jaime L. Sin would do well to heed Christ's reminder (which he
repeated at the Fourth Annual National Prayer Breakfast at the Manila Hotel on
November 30, 1978) to His disciples that His Kingdom is not of this world.
And all authorities of the Roman Catholic Church should likewise harken to the injunction
of the supreme Pontiff Pope John Paul 11, who on Friday, November 24, 1978, told the
monks, friars and other religious that their duty is to lead a poor and obedient life rather
than be engaged in "social and political radicalism" (Times Journal, page 1, November
25, 1978).
I therefore vote to grant the petition and to reverse the decision of the trial court.
ANTONIO, J., concurring:
I concur in the judgment, but dissent from the views expressed by Mr. Justice Fernando.
In resolving the issues in the case at bar, the main opinion failed to consider Section 15
of Article XV of the Constitution. This provision, which ordains the inviolability of the
separation of Church and State, appears more relevant to the case at bar, if we consider
the constitutional guarantee of religious freedom in its historical setting. It must be

WEEK 3
recalled that during the period of Spanish colonial domination, the union of Church and
State in the Philippines was maintained and protected. As observed by one writer:
The Friar at this period was the full embodiment of Spanish colonial donation. He was de
facto a colonial civil administrator and a defender of the sovereignty of the King of Spain
over the subject Indio in most provincial towns. Simultaneously he was de jure by
operation of the Patronato Real, the rightful parish priest of the same towns constituted
as parishes.
Since he was the only Spaniard in residence in most Philippine towns he was not only a
salaried government official he was entrusted with purely civil functions. Thus, for
instance, he drew up the tribute list of his parish, the list, namely, of those Indios subject
to the poll tax and to statute labor. He was the director of the local elementary school.
He supervised the election of local officials whose confirmation in office by the colonial
government depended entirely upon his recommendation. He attended, and often
presided at the meetings of the town council, whose ordinances had to be approved by
him. Roads, bridges and other public works were maintained under his orders and
vigilance. He was the judge and guardian of public morals.
The Friar therefore, was the promoter, defender, and protector of Spanish rule in the
Philippines. ... . 1
It is a historical fact that this arrangement spawned abuses on the part of the friars.
According to two noted historians, "one of the most unwelcome characteristics of
Spanish colonization was the encroachment of the church upon the jurisdiction of the
government, and the exercise of political power by the religious. In the central
government, representatives of the church or of the religious orders sat in the highest
councils. The friars were heavily represented in the powerful Permanent Commission on
Censorship, created in 1856, which had jurisdiction over 'the press and the introduction
of books in the archipelago, according to rules approved by both the civil and
ecclesiastical authorities.' In the towns the masses were subject to the will of the parish
priest, who dominated the local officials. Indeed, in the towns, the friars and priests
became integrated into the machinery of government: they 'had become the
government.' Thus, there was no effective system of checks and balances which could
curb abuses." 2 Said historians further noted that:
Justice Florentino Torres testified, also before the Philippine Commission in 1900, that
the friars were so powerful that they could intervene directly in the election of municipal
officials, and could obtain the transfer, suspension, or even removal from office of civil
officials, from the highest to the lowest, including the governor-general. According to
him, whoever was suspected by the friars to be a filibuster no matter how worthy or
upright, '... became the object of all manner of governmental action, of military
proceedings, and of the cruelest outrages and vexations, because against him who was
accused of being a filibuster all manner of ill treatment, imprisonment, deportation, and
even assassination was permitted.'3
Father Jose Burgos attributed the regressiveness of the Filipinos in his "Manifesto" in the
newspaper La Verdad" to the efforts of the friars to keep the poor Indios in ignorance
and rusticity and this constituted a constant obstacle to the progress and advancement
of the Filipinos. In "El Filibusterismo", Jose Rizal blamed by the tyranny and abuses of
the friars and Spanish officials, and especially their suppression of free Ideas, as the
cause of the social and political backwardness of the Filipinos.
It is in the anguish of their historical experience that the Filipinos sought a ban on the
intervention of the ecclesiastics in the management of government. Thus, the framers of
the Constitution of the First Philippine Republic (Malolos Constitution) of 1899 deemed it
necessary to prevent interference with, and domination of, the government by the
ecclesiastics by providing, in Article 5, Title Ill thereof, for the "separation of the Church
and the State." 4 Even before the establishment of the American colonial rule, there was,
therefore, this prevailing clamor of the Filipinos to erect a wall between the Church and
the State. In the instructions of President McKinley to the Philippine Commission which

WEEK 3
laid out the policies of the United States in establishing a government in the Philippines,
he stated that "the separation of State and Church shall be real, entire and absolute."
The separation of State and Church clause was again incorporated in the 1935 and later
in the 1973 Constitutions. Thus, the 1973 Constitution of the Philippines provides that
"the separation of church and state shall be inviolable." 5 This should, therefore, be taken
into consideration in ascertaining the meaning and import of Section 8 of Article IV of the
Constitution, which states that "no religious test shall be required for the exercise of civil
or political rights." 6 According to Story, the "no religious test" clause contained in the
United States Constitution was "not introduced merely for the purpose of satisfying the
scruples of many respectable persons, who feel an invincible repugnance to any
religious test or affirmation. It had a higher object; to cut off forever every pretence of
alliance between church and state in the national government. The framers of the
Constitution were fully sensible of the dangers from this source, marked out in the
history of other ages and countries, and not wholly unknown to our own. They knew that
bigotry was unceasingly vigilant in its stratagems to secure to itself an exclusive
ascendancy over the human mind; and that tolerance was ever ready to arm itself with
all the terrors of the civil power to exterminate those who doubted its dogmas or resisted
its infallibility." 7
It is clear, therefore, that the two provisions, taken together, ensure the separation of
Church from Government, while at the same time giving assurance that no man shall be
discriminated against because of his religious beliefs. The interrelation of these
complementary clauses was well summarized, thus: "The structure of our government
has, for the preservation of civil liberty, rescued the temporal institutions from religious
interference. On the other hand, it has secured religious liberty from the invasion of the
civil authority." 8 Indeed, it is a matter of history that "the union of government and
religion tends to destroy government and degrade religion." 9
It was partly to ensure that no particular religious sect shall ever again obtain a dominant
hold over civil government that Section 2175 of the Revised Administrative Code was
incorporated in our laws, Thus, it provides that "in no case shall there be elected or
appointed to a municipal office ecclesiastics ...". This Court applied this prohibition in a
case decided on March 14, 1955, or after the adoption of the 1935 Constitution.
Thus, Vilar v. Paraiso, 10 the Court ruled that a minister of the United Church of Christ
was ineligible to assume the office of municipal mayor.
In its American setting, the separation of Church and State clause is justified "by the
necessity for keeping the state out of the affairs of the church, lest the church be
subordinated to the state; in Jeffersonian terms its function is to keep the church out of
the business of government, lest the government be subordinated to the church. Limited
powers of government were not instituted to expand the realm of power of religious
organizations, but rather in favor of freedom of actions and thought by the people." 11
It is, therefore, obvious that on the basis of its history and constitutional purpose, the
aforecited provisions of the Constitution furnish neither warrant nor justification for the
holding in the main opinion that Section 2175 of the Revised Administrative Code,
insofar as it includes ecclesiastics is inconsistent with the "religious freedom guaranteed
in the Constitution."
In Torcaso v. Watkins, 12 which is accorded persuasive weight in the majority opinion,

there was no showing that Torcaso was an ecclesiastic or a minister or officer of any
religious sect As a matter of fact, he was refused a commission to serve as notary public
because he would not declare his belief in God, as required by Article 37 of the Maryland
Constitution. The Supreme Court properly held that the requirement is a religious test
and "unconstitutionally invades the appellant's freedom of belief and religion and
therefore cannot be enforced against him."
On the other hand, the situation of private respondent is materially different. He is

admittedly a member of the Clergy, being a priest of the Roman Catholic Church. It is for
this reason that he is being prevented from assuming the office of municipal mayor, and

WEEK 3
not because of his religious belief. The prohibition does not impinge upon his religious
freedom. He has the full and free right to entertain his religious belief, to practice his
religious principle and to teach his religious doctrine, as long as he does not violate the
laws of morality or the laws of the land. The separation of Church and State clause in the
Constitution appears to be a recognition of the teachings of history "that powerful sects
or groups might bring about a fusion of governmental and religious functions or a concert
or dependency of one upon the other to the end that official support of the ...
Government would be placed behind the tenets of one or of all orthodoxies." 13
The intent of the constitutional provision is the vital part, the essence of the law. The
clear purpose of the framers of the Constitution and the understanding of the people
when they approve it, when ascertained, must be enforced. Indeed, in construing
provisions of the Constitution, the proper course is to start out and follow the true intent
of its framers and to adopt that construction which harmonizes best with the context and
promotes in the fullest manner the realization of the constitutional purpose.
I likewise take exception to the view expressed in the majority opinion that the
supremacy of the Constitution supplies the answer to the issue of the eligibility of a
member of the clergy to an elective municipal position. The application of Article XVI,
Section 2 of the 1935 Constitution, with its counterpart in Article XVII, Section 7 of the
1973 Constitution, concerning laws inconsistent with the Constitution, is inaccurate.
Article 2175 of the Revised Administrative Code, in including ecclesiastics within the
ambit of the prohibition, is not inconsistent with the explicit provision of the 1935
Constitution that "(n)o religious test shall be required for the exercise of civil or political
rights." 14 The absence of inconsistency may be seen from the fact that the prohibition
against "religious tests" was not original to the 1935 constitution. It was expressly
provided in the Jones Law 15 that "no religious test shall be required for the exercise of
civil or political rights" (Section 3). At the time of the passage of the Jones Law, the
Original Administrative Code (Act 2657) was already in force, having been enacted in
February 1916. In order to harmonize the Code with the Jones Law, the Code was
amended in October 1916, with the passage of Act 2711. The revision was made
expressly "for the purpose of adapting it to the Jones Law and the Reorganization
Act. 16 Notwithstanding such stated purpose of the amendment, the prohibition against
the election of ecclesiastics to municipal offices, originally embodied in Section 2121 17 of
the 2657, was retained. This is a clear indication that it is not repugnant to the "no
religious test" doctrine which, as aforestated, was already expressly provided for in the
Jones Law.
Considering that Section 2175 of the Revised Administrative Code, which "cut off forever
every pretence of any alliance between church and state", is in conformity with Section
15 of Article XV of the Constitution, which ordains that "the separation of church and
state shall be inviolable, " it cannot, wherefore, be said that such statute, in including
ecclesiastics among those ineligible to municipal office, is violative of the fundamental
law.
I concur in the view incisively discussed by Chief Justice Castro that Section 2175 of the
Revised Administrative Code has not. been repealed or superseded by any other
legislation and, therefore, is the controlling law in the case before Us.
Since we cannot negate the clear and unequivocal intendment of the law, I therefore
concur in the judgment granting the certiorari.
MUÑOZ PALMA, J., dissenting:
I concur fully with the separate Opinion of Justice Claudio Teehankee on all the points
discussed therein.
As regards the final outcome of this case, with Justices Fernando, Concepcion Jr.,
Santos, Fernandez, and Guerrero who share our views on the legal issue raised in the
Petition, now voting with the Chief Justice and the four other Justices to grant the
petition because, "the vote is indecisive" for "while 5 members of the Court constitute a

WEEK 3
minority, the vote of the remaining seven does not suffice to render the challenged
provision ineffective," and "under the circumstances, certiorari lies," and therefore the
aforementioned Justices "have no choice then but to vote for the reversal of the lower
court decision and declare ineligible respondent Father Margarito R. Gonzaga for the
office of municipal mayor." (See 1st paragraph, p. 3 of Majority Opinion) I can only state
that this reasoning surpasses my comprehension.
I believe that there would have been greater fidelity to the prevailing situation had the
petition for certiorari been denied due to the original lack of necessary votes to grant the
same, a status quo maintained insofar as respondent Father Gonzaga is concerned,
without a conclusive ruling pronounced on the legal issue as the required eight votes for
purposes of rendering judgment is absent. (See Sec. 9, Judiciary Act of 1948 as
amended by Art. X, Sec. 2[2]1973 Constitution)
As explained in detail in the separate Opinion of Justice Teehankee, the denial of the
Petition for Review would be in consonance with Sec. 11, Rules 56, Rules of Court.
I now submit the following observations on the matter of the disqualification of an

ecclesiastic to run for a municipal elective office.
The minority view asserts that Section 2175 of the Administrative Code which declares
ecclesiastics among others ineligible for election or appointment to a municipal office,
does not violate any provision of the Constitution and that in fact it strengthens the
constitutional provision on the separation of Church and State. Justice Ramon Aquino
particularly states: "to allow clergymen to take part in political affairs is to start the
process of reviving the theocracy of primitive societies, and past civilizations where the
priests, with his chants incantations hocus-pocus and abbracadabra played sinister role",
and "Rizal and the reformers would have labored in vain and would be betrayed if the
priest becomes a politician." (pp. 3, 4, 6 of Opinion)
I must voice my objection to the above-quoted sweeping statements which are also
echoed in the other Opinions of my distinguished Colleagues, as they savor of bias,
prejudice, and constitute an unjust indictment and dicrimination against priests, more
particularly, priest of the Roman Catholic Church.
It is not for me to pontificate on what is or should be the true mission of priests,

ministers, and nuns, the latter, according to Justice Aquino, also fall under the term
ecclesiastics for I would leave that matter to the conscience and judgment of the person
concerned and of his superiors in his church, but I will speak out in defense of a person's
constitutional right not to be dicriminated against, nor to be denied of equal opportunities
for work or employment, or withheld of equal protection of the laws in the exercise of his
civil or political rights, simply because he is garbed in a cassock or a religious habit and
has taken vows of service to God and his church.
One's religious vocation does not strip the individual of his rights and obligations as a
citizen of his country and as a member of the community where he serves. He is part of
society, and his having taken vows of poverty, humility, and love, renders him all the
more concerned with humanity, more particularly, with the social and economic
conditions of the people with whom he lives be they within or out of his flock. A minister
of the church is therefore not to be feared of playing a "sinister role" in the handling of
government affairs, rather it is the layman motivated by ambition and greed set out to
enrich himself and perpetuate his person in power while the poor becomes poorer and
the oppressed becomes more burdened with injustice, who is to be abhorred and
shunned.
The fears expressed by the Justice concerned date far back in the dark ages of history
and in truth are the result of the abuses of a few. Now we live in different times.
Concepts in government, politics, religion, and society as a whole, have undergone
drastic changes with the passing of the years. The Filipino people for their part have kept
faith with their goal of political independence and their love for freedom and justice side

WEEK 3
by side with their Christian religion and all other faiths which fourish in the prevailing
spirit of ecumenism
The present role of the Roman Catholic Church was clearly expressed by Pope John
XXIII in his encyclical "Mater et Magistra" thus:
2. Christianity is the meeting point of earth and heaven. It lays claim to the whole man,
body and soul, intellect and will, inducing him to raise his mind above the changing
conditions of this earthly existence and reach upward for the eternal life of heaven,
where one day he w .11 find his unfailing happiness and peace.
3. Hence, though the Church's first care must be for souls, how she can sanctify them
and make them share in the gifts of heaven, she concerns herself too with the
exigencies of man's daily life, with his livelihood and education and his general temporal
welfare and prosperity.
xxx xxx xxx
180. Moreover, in becoming as it were the lifeblood of these people, the Church is not,
nor does she consider herself to be, a foreign body in their midst. Her presence brings
about the rebirth, the resurrection, of each individual in Christ; and the man who S
reborn and rises again in Christ never feels himself constrained from without. He feels
himself free in the very depth of his being, and freely raised up to God. And thus he
affirms and develops that side of his nature which is noblest and best. (The Social
Teaching of Pope John XXIII, p. 5; emphasis supplied)
The above may well be the objective of all religions.
What then have we to fear or guard against a minister of the church if ever the reins of
local government are placed in his hands? As one writer says: "When one gives himself
wholly to God, the noblest and best in his nature emerges; spontaneously he is
generous, noble, kind and compassionate; he will have the courage that comes from
disinterested love, and having these qualities, he will become a powerful influence for
god" And so, rather than a tool of evil, an ecclesiastic or a priest will be an effective
instrument of good in the community.
Of much interest, and I would give it much weight, is an 1894 decision of the Supreme
Court of Pennsylvania, United States of America, a country which jealousy guards the
enforcement of the principle of separation of Church and State. In Hysong et al v. School
District of Gallitzin Borough et al., the action was to restrain the school directors of the
District from permitting sectarian teaching in the common schools and from employing
as teachers sisters of the Order of St. Joseph, a religious society of the Roman Catholic
Church. The court of common pleas dismissed the action and dissolved a preliminary
injunction previously issued. An appeal was made to the State Supreme Court and the
latter dismissed the appeal and affirmed the order or decree. Said the Court through
Justice John Dean:
xxx xxx xxx
Unquestionably, these women are Catholics, strict adherents of Chat faith, believing fully
in its distinctive creed and doctrine. But this does not disqualify them. Our constitution
negatives any assertion of incapacity or ineligibility to office because of religious
belief. Article 1 of the bill of rights declares: "All men have a natural and indefeasible
right to worship Almighty God according to the dictates of their own conscience; ... no
human authority can in any case whatever control or interfere with the rights of
conscience. If, by law, any man or woman can be excluded from public employment
because he or she is a Catholic, that is a palpable violation of the spirit of the
Constitution for there can be, in a democracy, no higher penalty imposed upon one
holding to a particular religious belief than perpetual exclusion from public station
because of it. Men may disqualify themselves by crime, but the state no longer
disqualifies because of religious belief. We cannot now, even if we wanted to, in view of

WEEK 3
our law, both fundamental and statutory, go back a century or two, to a darker age, and
establish a religious test as a qualification for office. (30 Atl Rep. pp. 482-483, emphasis
supplied)
But then it is strongly argued that the election or appointment of priests or even nuns to
municipal office will be violative of the separation of church and state. I strongly believe
that it is not so. As an eminent Constitutionalist puts it: what is sought to be achieved
under the principle of separation of church and state is that political process is insulated
from religion and religion from politics; in other words, government neutrality in religious
matters. 1 Thus, our Constitution provides that no law shall be made respecting an
establishment of religion.
Having an ecclesiastic or priest in a local government office such as that of the municipal
mayor will not necessarily mean the involvement of politics in religion or vice-versa. Of
course the religion of the man cannot be dissociated from his personality; in truth, his
religion influences his conduct, his moral values, the fairness of his judgment, his outlook
on social problems, etc. As stated in the Hysong decision, inevitably in popular
government by the majority, public institutions will be tinged more or less by the religious
proclivities of the majority, but in all cases where a discretion is reposed by the law, it is
to be assumed in the absence of evidence to the contrary, that the public officer will
perform his duty in the manner the law requires. I may add that there are legal remedies
available to the citizenry against official action violative of any existing law or
constitutional mandate.
WHEREFORE, I vote to deny this Petition for review and to affirm the decision of
respondent Judge.
AQUINO, J., concurring:
Reverend Father Margarito R. Gonzaga was elected in 1971 as mayor of Alburquerque

Bohol. Fortunato R. Pamil his opponent, filed a quo warranto proceeding against him.
Pamil invoked section 2175 of the Revised Administrative Code of 1917 which
disqualifies clergymen from holding a municipal office in the following peremptory terms:
SEC. 2175. Persons ineligible to municipal office. — In no case shall there be elected or

appointed to a municipal office ecclesiastics, soldiers in active service, persons receiving
salaries or compensation from provincial or National funds, or contractors for public
works of the municipality.
Father Gonzaga interposed the defense that section 2175 was impliedly repealed by
section 23 of the Election Code of 1971 which provides:
SEC. 23. Candidate holding appointive office or position. — Every person holding a

public appointive office or position petition, including active members of the Armed
Forces of the Philippines and every officer or employee in government-owned or
control]. ed corporations, shall ipso-facto cease in his office or position on the date he
files his certificate of candidacy: Provided, That the filing of a certificate of candidacy
shall not affect whatever civil, criminal or ad. administrative liabilities which he may have
incurred.
It may be noted that section 2175 disqualifies from holding a municipal office soldiers in
active service as well as priests. The fact that tion 32 of the Election Code of 1971
allows active members of the Armed Forces of the Philippines to run for municipal mayor
may give the impression that Section 2175 was impliedly repealed by Section 23. The
lower court was of that opinion. It denied the petition for quo warranto. Pal appealed by
means of certiorari under Republic Act No. 5440.
I am of the opinion that the appeal is meritorious. The lower court erred in dismissing the
petition for quo warranto. A soldier in the active service may run for mayor because
under Section 23 he ipso facto ceases to be an army man from the time he files his
certificate of candidacy.

WEEK 3
In contrast, a priest continues to be a priest notwithstanding his filing of a certificate of
candidacy for municipal mayor.
So, it cannot be concluded that section 23 of the Revised Election Code impliedly
abrogated the ineligibility of priests to run for municipal mayor as provided in section
2175. There is no irreconciliable repugnancy between section 23 and section 2175
insofar as ecclesiastics are concerned.
Section 2175 and section 23 are in pari materia with respect to soldiers in the active
service. There is no incompatibility between the two sections with respect to soldiers.
The disqualification in section 2175, as regards soldiers in the active service, is
compatible with their cessation as members of the armed forces when they file their
certificates of candidacy, as provided for in section 23. Soldiers can hold a municipal
office if they are no longer in active service. That can be implied from section 2175 itself.
For that matter, the automatic resignation from public office, under section 23, of public
officers who file their certificates of candidacy has no connection with the disqualification
in section 2175 of ecclesiastics from holding any municipal office. That disqualification is
not affected by the provision of the ipso facto resignation of public officers who file their
certificates of candidacy because an ecclesiastic is not a public officer.
The view that section 23 impliedly repealed the disqualification of ecclesiastics from
holding a municipal office is strained and far-fetched.
So much for section 23 of the Election Code of 1971. Mr Justice Fernando, the Courts
leading authority on constitutional-law, tackled the question of respondent's eligibility
from the constitutional -,viewpoint although the issue of constitutionality was not raised in
the lower court. I disagree with the opinion that the provision of section 2175
disqualifying ecclesiastics from holding a municipal office is unconstitutional.
The term ecclesiastics refers to priests, clergymen or persons in holy orders or

consecrated to the service of the church. Broadly speaking, it may include nuns.
Conformably with section 2175, an ordained minister of the United Church of Christ was
held to be ineligible to hold the office of municipal mayor. His election to that office was
nullified in a quo warranto proceeding (Vilar vs, Paraiso, 96 Phil. 659).
It is argued that the disqualification of priests was abrogated by section 117), Article I I I
of the 1935 Constitution which provides that "no religious test shall be required for the
exercise of civil or political rights". It is assumed that the dis qualification is "inconsistent
with the religious freedom guaranteed by the Constitution (See sec. 8, Art. IV; sec.
18[21, Art. VIII, and sec. 8, Art. XII, 1973 Constitution).
I disagree with that conclusion. There is no incongruency between the disqualification

provision and the "no religious test" provision. The two provision can stand together. The
disqualification provision does not impair the free exercise and enjoyment or religious
profession and worship. It has nothing to do with religious freedom.
The disqualification of priests from holding a municipal office is an application of the

mandate for the separation of church and state (Sec. 15, Art. XV, 1973 Constitution; Art.
5, Malolos Constitution) which is based on Christ's admonition: "Render, therefore, unto
Caesar the things that are Caesar's and to God the things that are God's".
It should be borne in mind that the disqualification in section 2175 is a reproduction of

section 15 of Act No. 82 of the Philippine Commission which was passed on January 31,
1901, The Commission established that disqualification in spite of the "no religious test
provision found in article VI of the Federal Constitution. The constitutionality of that
disqualification had not been assailed up to 1971 when the instant case arose.
The disqualification of priests from holding municipal offices is a consequence of the

experience of our forefathers during the Spanish regime when the intervention of the

WEEK 3
local curate in municipal affairs resulted in oppression, abuses, misery immorality and
stagnation. The revolution against Spain was partly an uprising against the friars whose
predominance in the country's affairs was characterized by Plaridel as the soberania
monacal.
There is a chapter in Rizal's Noli Me Tangere entitled Los Soberanos (The Rulers),

wherein the author answers the question: Quienes eran los caciques del pueblo?". He
noted that the town of San Diego was not ruled by Don Rafael Ibarra the richest
landowner, nor by Capitan Tiago, the moneylender, nor by the gobernardorcillo, nor by
God. It was ruled by the curate and the alferez. Rizal described the two rulers as follows:
San Diego was a kind of Rome: not the Rome of the time when the cunning Romulus
laid out its walls with a plow, nor of the later time when, bathed in its own and others'
blood, it dictated laws to the world — no, it was a Rome of our own times with the
difference that in place of marble monuments and coloseums it had its monuments of
sawali and its cockpit of nipa The curate was the Pope in the Vatican; the alferez of the
Civil Guard, the King of Italy on the Quirinal all, it must be understood, on a scale of nipa
and bamboo. Here as there, continual quarreling, went on, since each wished to be the
master and considered the other an intruder. ... Estos on los soberanos del pueblo de
San Diego.
The flagitious thralldom which the friars imposed on the Filipinos, was an aspect of the
malignant social cancer that Rizal and the propagandists exposed and combated in their
writings.
The ecclesiastic is disqualified to run for an elective office in order to prevent, his church
from controlling the government. The same reason holds true with respect to soldiers in
active service. They should not meddle in politics so that no segment of the army can
overthrow the government,
Indeed, there is no reason when a priest should hold a civil office. He should hake
enough work in his hands ministering to the spiritual needs of the members of his
church. He can be an activist and he can champion social justice if lie is not a municipal
officeholder
Respondent Father Gonzaga is supposed to devote himself solely to spiritual matters

and not to temporal affairs such as the administration of a municipality. The objective of
the Roman Catholic Church is the salvation or redemption of souls. To attain that
objective, the priest under the Codex Juris Canonici is invested with the three-fold
function of teaching, directing and sanctifying in the tame of Jesus Christ. That means
the governance of the faithful and the ministry of divine worship or exclusive dedication
to the service of God and the sanctification of men in the manner of the priestly and
Levitical orders of the Old Testament (19 Encyclopedia Britanica, 1973 Ed., pp. 465-
466).
To nullify the disqualification provision would be a retrogressive step. To allow

clergymen to take part in political affairs is to start the process of reviving the theoracy or
primitive societies and past civilizations where the priests with his chants incantations
hocus-pocus and abbracadabra played a sinister role.
These observations are based on historical facts. I have n ingrained bias or prejudice
against priests. There are, an there have been good and saintly clergymen like the late
Fattier George J. Wilmann S. J. Philippine Deputy of th Knights of Columbus. Religion
plays an important role in enforcing the moral code and promoting order and morality in
society.
Rizal and the reformers would have labored in vain and would be betrayed if the priest
becomes a politician. He would be debased and his church would be degraded. The
evils arising from his intervention in municipal affairs would outweight the advantages, if
any.

WEEK 3
A priest, who is disqualified from becoming a municipal employee, is not denied any part
of his religious freedom., or his political rights. A priest may have the civil right to
embrace the religious vocation but he does not have the constitutional right to be a
municipal employee. He can choose between being a municipal employee and being a
priest. He cannot be both. 'That arrangement is good for himself and his church and for
Society.
On the other hand, the statutory provision that only laymen can hold municipal offices or
that clergymen are disqualified to become municipal officials is compatible with the "no
religious test" provision of the 1935 Constitution which is also found in .9 tion 8. article IV
of the 1973 Constitution and in section 3 of the Jones law. They are compatible because
they refer to different things
The "no religious test" provision means that a person or citizen may exercise civil right
(like the right to acquire property) or a political right (the right to vote or hold office, for
instance) without being required to belong to a certain church or to hold particular
religious beliefs (See Miller vs. El Paso County 146, S. W. 2nd 1027, 67 C.J.S. 128, note
48; 46 C. J. 939, note 44).
Thus, a constitutional provision prescribing that certain public officers shall be

Protestants requires a religious test Hale vs. Everett 53 NH 9, 67 C.J.S. 129, note 51; 46
C. J. 939, note 47. See State vs. Wilmington City Council, 3 Del 294, 67 C.J.S. 129, note
52).
And, a constitutional provision requiring as a condition for appointment as a notary public

that a person should declare his belief in the existence of God or should not be an
atheist or an agnostic requires a religious test and is, therefore, unconstitutional. That
constitutional provision implements the historically discredited policy of "probing religious
beliefs by test oaths or limiting public offices to persons who have, or perhaps more
properly profess to have, a belief in some particular kind of religious concepts." (Torcaso
vs. Watkins, 367 U. S. 488, 494, 6 L. Ed. 2nd 982, 987).
The historical background of the "no religious test" provision clearly shows that it is
consistent with the disqualification of all clergymen from holding public office and that it
cannot be invoked to invalidate the statutory provision on disqualification.
The "no religious test" provision is a reaction against the Test Acts which once upon a
time were enforced in England, Scotland and Ireland. The Test Acts provided that only
those who professed the established religion were eligible for public office. Those laws
discriminated against recusants or Roman Catholics and non-conformists.
In England the religious test was first embodied in the Corporation Act of 1661. It
provided that all members of town corporations, in addition to taking the oaths of
allegiance and subscribing to a declaration against the Solemn League and Covenant,
should, within one year before election, receive the sacrament of the Lord's Supper
according to the rites of the Church of England. Later, the requirement was extended to
all public offices.
The English Test Act of 1678 provided that all peers and members of the House of
Commons should make a declaration against transubstantiation, invocation of saints,
and the sacrifice of the mass. During the later part of the nineteenth century the Test
Acts were abrogated.
In Scotland, the Test Act made profession of the reformed faith a condition of public
office. In Ireland, the principle of using the sacrament as a test was adopted. Oaths of
allegiance and declarations against Roman Catholic beliefs and practices were exacted.
Later, the tests were abolished in the two countries (21 Encyclopedia Britannica, 1973
Ed., 883-4).
To require that a person should be a Protestant in order to be eligible to public office is

different from disqualifying all clergymen from holding municipal positions. The

WEEK 3
requirement as to religious belief does violence to religious freedom, but the
disqualification, which indiscriminately applies to all persons regardless of religious
persuasion, does not invade an ecclesiastic's religious belief He is disqualified not
because of his religion but because of his religious vocation.
Consequently, section 2175 can coexist, as it has co-existed for several decades, with
the "no religious test" constitutional provision. It is not unconstitutional. It strengthens the
constitutional provision for the separation of church and state.
I concur in the opinions of the Chief Justice and Justices Barredo, Makasiar and Antonio.
I vote for the reversal of the lower court's decision and the nullification of Father
Gonzaga's election as municipal mayor of Alburquerque Bohol.
Separate Opinions
CASTRO, C.J., concurring:
While I concur in the result, certain overriding considerations, set forth below, constrain
me to dissent from the opinion penned by Justice Fernando as well as the written
concurrence of Justice Teehankee and Muñoz Palma.
1.
I reject Justice Teehankee's argument that section 2175 of the Administrative Code 1 has
been repealed by section 23 of the Election Code of 1971. 2 Nor can I accept the
conclusion reached by Justice Fernando that the said provision of the Administrative
Code has been superseded or rendered inoperative by the specific provisions of the
1935 and 1973 Constitutions that forbid the requirement of a religious test for the
exercise of civil or political rights.
The thrust of section 23 of the Election Code of 1971 is simple: what is the effect of the
filing of certificates of candidacy by appointive, elective and other officials of the
government? The said section is therefore of no relevance (except to the extent that it
allows members of the Armed Forces to run for elective positions). Upon the other hand,
section 2175 of the Administrative Code treats of a disparate matter, which is the
absolute disqualification of the classes of persons enumerated therein.
Nor does the proscription contained in the said section 2175 prescribe a religious test for
tile exercise of civil or political rights. I have searchingly analyzed this provision, and I
am unable to infer from it any requirement of a religious test.
On the complementary question of implied repeal, it is a time-honored cardinal rule of

legal hermeneutics that for a later provision of law to be considered as having repealed a
prior provision, there must be such absolute repugnance between the two that the prior
provision must give way. I do not discern any such repugnance.
2.
Since section 2175 of the Administrative Code has not been superseded, and has been
neither expressly nor impliedly repealed in so far as the absolute disqualification of
ecclesiastics is concerned, it is perforce the controlling law in the case at bar. Careful
note must be taken that the absolute disqualification is couched in the most compelling
of negative terms. The law reads: "In no case shall there be elected or appointed to a
municipal office ecclesiastics (emphasis supplied)
Should an ecclesiastic be erroneously allowed by this Court to hold a municipal office,

through the happenstance of a procedural technicality or by the mischief of
circumlocution or otherwise, then the Court would be particeps criminis in the negation of
the unequivocal and imperious mandate of the law. The law admits of no exception;
there can therefore be none. And the Court has no constitutional warrant to legislate thru
any manner of exercise in semantics.

WEEK 3
3.
I wish to make of record some grave misgiving about allowing ecclesiastics to be elected
to governmental offices.
Our Lord Jesus Christ preached love, charity, compassion and mercy throughout His
earthly existence — and these four virtues, to my mind, make up His timeless gospel.
Unhappily, however, history has not infrequently been an anguished witness to religious
intolerance and persecution by ecclesiastics, whether they were Catholics or
Protestants.
Adverting to my own personal experience as a practicing Catholic, I still hear, once in a

great while, sermons or homilies by Catholic priests, delivered from the pulpit or from the
altar, declaring that the Catholic way of life is "the way to salvation," thereby inescapably
implying (without explicitly stating) that the adherents of other Christian sects and other
religious faiths may be damned from birth.
It is thus entirely possible that the election of ecclesiastics to municipal offices may
spawn small religious wars instead of promote the general community welfare and
peace - and these religious wars could conceivably burgeon into internecine dimensions.
Where then would we consign Pope John XXIII's ecumenism?
Should the majority of the mayoralties of the Philippines be someday occupied by

militant Catholic ecclesiastics, is it improbable that the next development will be a
determined nationwide campaign by the Catholic Church for the election of ecclesiastics
to our national legislative body? And if this eventuality should come, what then of our
cherished tradition of separation of Church and State? For my part, with history in
perspective, the obvious logical and inevitable consequence is too frightful to
contemplate.
In my view, all ecclesiastics — whoever they are, whatever their faiths, wherever they
may be — should essentially be pastors, immersing themselves around the clock in the
problems of the disadvantaged and the poor. But they cannot be effective pastors if they
do not dissociate themselves completely from every and all bane of politics.

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16. FELICIDAD UY VS HONORABLE MAXIMO CONTRERAS, GR 111416-17
G.R. No. 111416 September 26, 1994
FELICIDAD UY, petitioner,
vs.
HON. MAXIMO C. CONTRERAS, Presiding Judge, Metropolitan Trial Court, Branch
61, Makati, Metro Manila; HON. MAURO M. CASTRO, Provincial Prosecutor of
Pasig, Metro Manila; SUSANNA ATAYDE and WINNIE JAVIER, respondents.
Albon & Serrano Law Office for petitioner.Ramon M. Velez for private respondents.
DAVIDE, JR., J.:
Assailed in this petition for certiorari under Rule 65 of the Rules of Court is the order
dated 2 July 1993 of public respondent Judge Maximo C. Contreras of Branch 61 of the
Metropolitan Trial Court (MTC) of Makati, Metro Manila, denying the petitioner's motion
to dismiss Criminal Cases Nos. 145233 and 145234 for slight physical injuries. The
motion to dismiss is based on the failure of the private respondents, as the offended
parties therein, to comply with Section 6 of P.D. No. 1508 and Section 18 of the 1991
Revised Rule on Summary Procedure requiring prior referral of disputes to the Lupong
Tagapamayapa of the proper barangay.
At the outset, it must be stated that were it not for the importance of the issue to be
resolved in the light of the revised law on katarungang pambarangay provided for in the
Local Government Code of 1991 (R.A. No. 7160) which took effect on 1 January
1992, 1 this Court would have declined to accept the invocation of its original jurisdiction
to issue the extraordinary writ prayed for. We have already ruled that while it is true that
this Court, the Court of Appeals, and the Regional Trial Courts have concurrent original
jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, and habeas
corpus, such concurrence does not accord litigants unrestrained freedom of choice of
the court to which application therefor may be directed. There is a hierarchy of courts
determinative of the venue of appeals which should also serve as a general determinant
of the proper forum for the application for the extraordinary writs. A becoming regard for
this judicial hierarchy by the petitioner and her lawyers ought to have led them to file the
petition with the proper Regional Trial Court. 2
The antecedent facts as disclosed by the pleadings of the parties are not complicated.
Petitioner subleased from respondent Susanna Atayde (hereinafter Atayde) the other

half of the second floor of a building located at corner Reposo and Oliman Streets,
Makati, Metro Manila. She operated and maintained therein a beauty parlor. 3
The sublease contract expired on 15 April 1993. However, the petitioner was not able to
remove all her movable properties.
On 17 April 1993, an argument arose between the petitioner and Atayde when the
former sought to withdraw from the subleased premises her remaining movable
properties such as cabinets, shelves, frames, a mirror, a shampoo bowl, and an
airconditioning casing. 4 The argument degenerated into a scuffle between the petitioner,
on the one hand, and Atayde and several of Atayde's employees, including private
respondent Winnie Javier (hereinafter Javier), on the other.
On 21 April 1993, the private respondent had themselves medically examined for the
alleged injuries inflicted on them by the petitioner. 5
On 23 April 1993, the private respondents filed a complaint with the barangay captain of
Valenzuela, Makati, which was docketed as Barangay Cases Nos. 1023 6 and 1024. 7

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The confrontation of the parties was scheduled by the barangay captain for 28 April
1993. On the said date, only the petitioner appeared. The barangay captain then reset
the confrontation to 26 May 1993. 8
On 11 May 1993, the Office of the Provincial Prosecutor of Rizal filed two informations
for slight physical injuries against the petitioner with the MTC of Makati, which were
docketed as Criminal Cases Nos. 145233 and 145234 and assigned to Branch 61
thereof.
On 21 May 1993, public respondent Judge Contreras of Branch 61 ordered the petitioner
to submit her counter-affidavit and those of her witnesses.
On 14 June 1993, the petitioner submitted the required counter-

affidavits. 9 In her own counter-affidavit, the petitioner specifically alleged the prematurity
of the filing of the criminal cases for failure to undergo conciliation proceedings as she
and the private respondents are residents of Manila. 10 She also attached to it a
certification by the barangay captain of Valenzuela, Makati, dated 18 May 1993, that
there was an ongoing conciliation between Atayde and the petitioner in Barangay Case
No. 1023. 11
On 18 June 1993, the petitioner filed a motion to dismiss Criminal Cases Nos. 145233
and 145234 for non-compliance with the requirement of P.D. No. 1508 on prior referral
to the Lupong Tagapamayapa and pursuant to Section 18 of the 1991 Revised Rule on
Summary Procedure.
On 2 July 1993, public respondent Judge Contreras handed down an order denying the
motion to dismiss, pertinent portions of which read:
The court finds the motion to be without sufficient merit. In the first place, the offense
subject of these cases accussed in Makati, Metro Manila on April 17, 1993; that
Barangay Valenzuela of the Municipality of Makati had started the conciliation
proceedings between the parties but as of May 18, 1993 nothing has been achieved by
the barangay (Annex "2" of the Counter-Affidavit of the accused); that the above-entitled
cases were filed directly with this court by the public prosecutor on May 11, 1993; and
the accused and her witnesses had already filed their counter-affidavits and documents.
At this stage of the proceedings, the court believes that the accused had already waived
the right to a reconciliation proceedings before the barangay of Valenzuela, Makati
considering that accused and complainant are residents of different barangays; that the
offense charged occurred in the Municipality of Makati; and finally, this offense is about
to prescribe.
Under the foregoing circumstances, the court believes, and so holds, that the
complainants may go directly to the court where their complaint is about to prescribe or
barred by statute of limitations pursuant to Section 6 of PD 1508." 12
A motion to reconsider the above order was denied on 5 August 1993.
Hence this special civil action for certiorari. The petitioner contends that the respondent
judge committed grave abuse of discretion amounting to lack of jurisdiction when he
denied the motion to dismiss considering that the private respondents failed to comply
with the mandatory requirement of P.D. No. 1508, now embodied in Section 412 of the
Local Government Code of 1991 and further required under the 1991 Revised Rule on
Summary Procedure.
In their Comment, the private respondents contend that the denial of the motion to
dismiss is proper because prior referral of the dispute to the lupon is not applicable in the
case of private respondent Javier since she and the petitioner are not residents of
barangays in the same city or municipality or of adjoining barangays in different cities or
municipalities and that referral to the lupon is not likewise required if the case may
otherwise be barred by the statute of limitations. Moreover, even
assuming arguendo that prior referral to the lupon applies to the case of private

WEEK 3
respondent Atayde, the latter had, nevertheless, substantially complied with the
requirement.
In its Comment, the Office of the Solicitor General agrees with the petitioner that
Criminal Cases Nos. 145233 and 145234 should be dismissed for non-compliance with
Sections 408, 409, 410, and 412 of the Local Government Code of 1991 in relation to
Section 7, Rule VI of the Rules Implementing P.D. No. 1508.
The petitioner replied to the comments of the private respondents and of the Office of
the Solicitor General. The private respondents filed a rejoinder to the petitioner's reply to
their comment and a reply to the comment of the Office of the Solicitor General.
In the Resolution of 16 May 1994, this Court gave due course to the petition and
required the parties to submit their respective memoranda, which the petitioner and the
private respondents complied with. The Office of the Solicitor General, in view of its prior
submission, moved that it be excused from filing a memorandum.
The petition is impressed with merit.
The law on the katarungang pambarangay was originally governed by P.D. No. 1508

which was enacted on 11 June 1978. However, the Local Government Code of 1991,
specifically Chapter 7, Title I, Book III thereof, 13 revised the law on the katarungang
pambarangay. As a consequence of this revision, P.D. No. 1508 was expressly repealed
pursuant to Section 534(b) of the Code. Pertinent portions of Chapter 7, Title I, Book III
thereof read as follows:
Sec. 408. Subject Matter for Amicable Settlement; Exception Thereto. — The luppon of

each barangay shall have authority to bring together the parties actually residing in the
same city or municipality for amicable settlement of all disputes except:
(a) Where one party is the government or any subdivision or instrumentality thereof;
(b) Where one party is a public officer or employee, and the dispute relates to the
performance of his official functions;
(c) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding
Five thousand pesos (P5,000.00);
(d) Offenses where there is no private offended party;
(e) Where the dispute involves real properties located in different cities or municipalities
unless the parties thereto agree to submit their differences to amicable settlement by an
appropriate lupon;
(f) Disputes involving parties who actually reside in barangays of different cities or
municipalities, except where such barangay units adjoin each other and the parties
thereto agree to submit their differences to amicable settlement by appropriate lupon;
(g) Such other classes of disputes which the President may determine in the interest of
justice or upon the recommendation of the Secretary of Justice.
The court in which non-criminal cases not falling within the authority of the lupon under
this Code are filed may, at anytime before trial, motu proprio refer the case to
the lupon concerned for amicable settlement.
Sec. 409. Venue. — (a) Disputes between persons actually residing in the same
barangay shall be brought for amicable settlement before the lupon of said barangay.

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(b) Those involving actual residents of different barangays within the same city or
municipality shall be brought in the barangay where the respondent or any of the
respondents actually resides, at the election of the complainant.
(c) All disputes involving real property or any interest therein shall be brought in the
barangay where the real property or the larger portion thereof is situated.
(d) Those arising at the workplace where the contending parties are employed or at the
institution where such parties are enrolled for study shall be brought in the barangay
where such workplace or institution is located.
Objections to venue shall be raised in the mediation proceedings before the punong
barangay; otherwise, the same shall be deemed waived. Any legal question which may
confront the punong barangay in resolving objections to venue herein referred to may be
submitted to the Secretary of Justice or his duly designated representative whose ruling
thereon shall be binding.
Sec. 410. Procedure for Amicable Settlement. — . . .
xxx xxx xxx
(c) Suspension of prescriptive period of offenses. — While the dispute is under

mediation, conciliation, or arbitration, the prescriptive periods for offenses and cause of
action under existing laws shall be interrupted upon filing of the complaint with the
punong barangay. The prescriptive periods shall resume upon receipt by the
complainant of the complaint or the certificate of repudiation or of the certification to file
action issued by the lupon or pangkat secretary: Provided, however, That such
interruption shall not exceed sixty (60) days from the filing of the complaint with the
punong barangay.
xxx xxx xxx
Sec. 412. Conciliation. — (a) Pre-condition to filing of complaint in court. — No

complaint, petition, action, or proceeding involving any matter within the authority of
the lupon shall be filed or instituted directly in court or any other government office for
adjudication, unless there has been a confrontation between the parties before
the lupon chairman or the pangkat, and that no conciliation or settlement has been
reached as certified by the lupon secretary or pangkat secretary as attested to by
the lupon chairman or pangkat chairman or unless the settlement has been repudiated
by the parties thereto.
(b) Where parties may go directly to court. — The parties may go directly to court in the
following instances:
(1) Where the accused is under detention;
(2) Where a person has otherwise been deprived of personal liberty calling for habeas
corpus proceedings;
(3) Where actions are coupled with provisional remedies such as preliminary injunction,
attachment, delivery of personal property, and support pendente lite; and
(4) Where the action may otherwise be barred by the statute of limitations.
xxx xxx xxx
Sec. 415. Appearance of Parties in Person. — In all katarungang pambarangay

proceedings, the parties must appear in person without the assistance of counsel or
representative, except for minors and incompetents who may be assisted by their next-
of-kin who are not lawyers.

WEEK 3
Pursuant to the authority vested in him under Section 421 of the Code, the Secretary of
Justice promulgated the Katarungang Pambarangay Rules to implement the revised law
on katarungang pambarangay. Sections 8 and 11 of Rule VI (Amicable Settlement of
Disputes) thereof provide in part as follows:
SECTION 8. Failure to appear. —
a. Sanctions
The complaint may be dismissed when complainant, after due notice, refuses or willfully
fails to appear without justifiable reason on the date set for mediation, conciliation or
arbitration. Such dismissal ordered by the Punong Barangay/Pangkat Chairman after
giving the complainant an opportunity to explain his non-appearance shall be certified to
by the Lupon or Pangkat Secretary as the case may be, and shall bar the complainant
from seeking judicial recourse for the same cause of action as that dismissed.
xxx xxx xxx
Sec. 11. Suspension of prescriptive period of offenses and cause of action. — The

prescriptive periods for offenses and causes of action under existing laws shall be
interrupted upon filing of the complaint with the Punong Barangay. The running of the
prescriptive periods shall resume upon receipts by the complainant of the certificate of
repudiation or of the certification to file action issued by the Lupon or Pangkat Secretary:
Provided, however, that such interruption shall not exceed sixty (60) days from the filing
of the complaint with the Punong Barangay. After the expiration of the aforesaid period
of sixty days, the filing of the case in court or government office for adjudication shall be
subject to the provision of paragraph (b) (4) of Rule VIII of these Rules.
It may thus be observed that the revised katarungang pambarangay law has at least

three new significant features, to wit:
1. It increased the authority of the lupon in criminal offenses from those punishable by

imprisonment not exceeding thirty days or a fine not exceeding P200.00 in P.D. No.
1508 to those offenses punishable by imprisonment not exceeding one year or a fine not
exceeding P5,000.00.
2. As to venue, it provides that disputes arising at the workplace where the contending
parties are employed or at the institution where such parties are enrolled for study, shall
be brought in the barangay where such workplace or institution is located.
3. It provides for the suspension of the prescriptive periods of offenses during the
pendency of the mediation, conciliation, or arbitration process. Paragraph (c) of Section
410 of the law, however, suffers from some ambiguity when it provides that the
prescriptive periods "shall resume upon receipt by the complainant of the complaint or
the certificate of repudiation or of the certification to file action issued by the lupon or
pangkat secretary." What is referred to as receipt by the complainant of the complaint is
unclear; obviously, it could have been a drafting oversight. Accordingly, in the above
quoted Section 11 of the Rules and Regulations issued by the Secretary of Justice, the
phrase "the complaint or" is not found, such that the resumption of the running of the
prescriptive period shall, properly, be from receipt by the complainant of the certificate of
repudiation or the certification to file action issued by the lupon or the pangkat secretary.
Such suspension, however, shall not exceed sixty days.
The first feature has necessarily broadened the jurisdiction of the lupon and if the
mediation and conciliation process at that level would be effectively pursued, few cases
would reach the regular courts, justice would be achieved at less expense to the
litigants, cordial relationships among protagonists in a small community would be
restored, and peace and order therein enhanced.
The second feature, which is covered by paragraph (d), Section 409 of the Local
Government code, also broadens the authority of the lupon in the sense that appropriate

WEEK 3
civil and criminal cases arising from incidents occurring in workplaces or institutions of
learning shall be brought in the barangay where such workplace or institution is located.
That barangay may not be the appropriate venue in either paragraph (a) or paragraph
(b) of the said section. This rule provides convenience to the parties. Procedural rules
including those relating to venue are designed to insure a fair and convenient hearing to
the parties with complete justice between them as a result. 14 Elsewise stated,
convenience is the raison d'etre of the rule on venue.
The third feature is aimed at maximizing the effectiveness of the mediation, conciliation,
or arbitration process. It discourages any intentional delay of the referral to a date close
to the expiration of the prescriptive period and then invoking the proximity of such
expiration as the reason for immediate recourse to the courts. It also affords the parties
sufficient time to cool off and face each other with less emotionalism and more
objectivity which are essential ingredients in the resolution of their dispute. The sixty-day
suspension of the prescriptive period could spell the difference between peace and a
full-blown, wearisome, and expensive litigation between the parties.
While P.D. No. 1508 has been repealed by the Local Government Code of 1991, the
jurisprudence built thereon regarding prior referral to the lupon as a pre-condition to the
filing of an action in court remains applicable because its provisions on prior referral
were substantially reproduced in the Code.
In Peregrina vs. Panis,15 this Court stated:
Thus, Morata vs. Go, 125 SCRA 444 (1983), and Vda. de Borromeo vs. Pogoy, 126
SCRA 217 (1983) have held that P.D. No. 1508 makes the conciliation process at the
Barangay level a condition precedent for the filing of a complaint in Court. Non-
compliance with that condition precedent could affect the sufficiency of the plaintiff's
cause of action and make his complaint vulnerable to dismissal on the ground of lack of
cause of action or prematurity. The condition is analogous to exhaustion of
administrative remedies, or the lack of earnest efforts to compromise suits between
family members, lacking which the case can be dismissed.
The parties herein fall squarely within the ambit of P.D. No. 1508. They are actual
residents in the same barangay and their disputes does not fall under any of the
excepted cases." (Emphasis omitted)
Such non-compliance is not, however, jurisdictional. This Court said so in Garces vs.
Court of Appeals: 16
In fine, we have held in the past that prior recourse to the conciliation procedure required
under P.D. 1508 is not a jurisdictional requirement, non-compliance with which would
deprive a court of its jurisdiction either over the subject matter or over the person of the
defendant. Where, however, the fact of non-compliance with and non-observance of
such procedure has been seasonably raised as an issue before the court first taking
cognizance of the complaint, dismissal of the action is proper.
xxx xxx xxx
The precise technical effect of failure to comply with the requirement of P.D. 1508 where
applicable is much the same effect produced by non-exhaustion of administrative
remedies; the complaint becomes afflicted with the vice of pre-maturity; the controversy
there alleged is not ripe for judicial determination. The complaint becomes vulnerable to
a motion to dismiss. (emphasis omitted)
There were, of course, cases where this Court ruled that the failure of the defendant to
seasonably invoke non-referral to the appropriate lupon operated as a waiver
thereof. 17 Furthermore, when such defect was initially present when the case was first
filed in the trial court, the subsequent issuance of the certification to file action by the
barangay, which constituted substantial compliance with the said requirement, cured the
defect. 18

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On 15 October 1991, this Court promulgated the Revised Rule on Summary
Procedure.19 Section 18 thereof provides:
Sec. 18. Referral to Lupon. — Cases requiring referral to the Lupon for conciliation

under the provisions of Presidential Decree No. 1508 where there is no showing of
compliance with such requirement, shall be dismissed without prejudice, and may be
revived only after such requirement shall have been complied with. This provision shall
not apply to criminal cases where the accused was arrested without a warrant.
In the proceeding before the court a quo, the petitioner and the respondent had in mind
only P.D. No. 1508. The petitioner further invoked the aforequoted Section 18. None
knew of the repeal of the decree by the Local Government Code of 1991. Even in her
instant petition, the petitioner invokes the decree and Section 18 of the Revised Rule on
Summary Procedure. However, the private respondents, realizing the weakness of their
position under P.D. No. 1508 since they did refer their grievances to what might be a
wrong forum under the decree, changed tack. In their Comment, they assert that on 20
April 1993 Atayde "filed a complaint against petitioner before the barangay council of
Barangay Valenzuela, Makati, in compliance with the requirement of the Katarungang
Pambarangay Law under the Local Government Code." 20 Yet, in a deliberate effort to be
cunning or shrewd, which is condemnable for it disregards the virtue of candor, they
assert that the said law is not applicable to their cases before the court a quo because
(a) the petitioner and respondent Atayde are not residents of barangays in the same city
or municipality; (b) the law does not apply when the action, as in the said cases, may
otherwise be barred by the statute of limitations; and (c) even assuming that the law
applies insofar as Atayde is concerned, she has substantially complied with it.
The Office of the Provincial Prosecutor of Rizal should have exerted enough diligence to
inquire from the private respondents if prior referral to the lupon was necessary before
filing the informations.
Respondent judge did not do any better. His total unawareness of the Local Government
Code of 1991, more specifically on the provisions on the Katarungang pambarangay, is
distressing. He should have taken judicial notice thereof, ever mindful that under Section
1, Rule 129 of the Rules of Court, courts are mandatorily required to take judicial notice
of "the official acts of the legislative, executive and judicial departments of the
Philippines." We have ruled that a judge is called upon to exhibit more than just a
cursory acquaintance with the statutes and procedural rules. 21 He should have applied
the revised katarungang pambarangay law under the Local Government Code of 1991.
Had he done so, this petition would not have reached us and taken valuable attention
and time which could have been devoted to more important cases.
In view of the private respondents' failure to appear at the first scheduled mediation on
28 April 1993 for which the mediation was reset to 26 May 1993, no complaint for slight
physical injuries could be validly filed with the MTC of Makati at any time before such
date. The filing then of Criminal Cases Nos. 145233 and 145234 with the said court on
11 May 1993 was premature and, pursuant to paragraph (a), Section 412 of the Local
Government Code, respondent Judge Contreras should have granted the motion to
dismiss the criminal cases. He cannot justify its denial by taking refuge under Section 6
of P.D. No. 1508 (more properly, Section 412(b)(4) of the Local Government Code of
1991) which states that the parties may go directly to court where the action is about to
prescribe. This is because, as earlier stated, pursuant to paragraph (c), Section 410 of
the Code, the prescriptive period was automatically suspended for a maximum period of
sixty days from 23 April 1993 when the private respondents filed their complaints with
the lupon of Valenzuela Makati.
Moreover, having brought the dispute before the lupon of barangay Valenzuela, Makati,
the private respondents are estopped from disavowing the authority of the body which
they themselves had sought. Their act of trifling with the authority of the lupon by
unjustifiably failing to attend the scheduled mediation hearings and instead filing the
complaint right away with the trial court cannot be countenanced for to do so would
wreak havoc on the barangay conciliation system.

WEEK 3
Granting arguendo that the petitioner did inflict the alleged physical injuries, the offense
for which she may be liable would only be slight physical injuries under paragraph (2),
Article 266 of the Revised Penal Code, considering that per the medical certificates 22 the
injuries sustained by the private respondents would "heal" in nine days "in the absence
of complication" and there is no showing that the said injuries incapacitated them for
labor or would require medical attendance for such period. The penalty therefor would
only be "arresto menor or a fine not exceeding 200 pesos and censure." These penalties
are light under Article 25 of the Revised Penal Code and would prescribe in two
months pursuant to Article 90.
Accordingly, since the slight physical injuries charged in Criminal Cases Nos. 145233
and 145234 were allegedly inflicted on 17 April 1993, the prescriptive period therefor
would have expired two months thereafter. Nevertheless, its running was tolled by the
filing of the private respondents' complaints with the lupon of Valenzuela, Makati, on 23
April 1993 and automatically suspended for a period of sixty days, or until 22 June 1993.
If no mediation or conciliation could be reached within the said period of suspension and,
accordingly, a certification to file action is issued, the private respondents would still
have fifty-six days within which to file their separate criminal complaints for such offense.
Evidently, there was no basis for the invocation by the respondent judge of the exception
provided for in paragraph (b), Section 412 of the Local Government Code.
Neither are we persuaded by the reasoning of the respondent Judge that the petitioner
"had already waived the right to a reconciliation proceedings before the barangay of
Valenzuela, Makati, considering that the accused and the complainant are residents of
different barangays." The petitioner did not waive the reconciliation proceedings before
the lupon of Valenzuela, Makati; she submitted to it and attended the scheduled
conciliation on 28 April 1993 and invoked the pre-condition of referral to the lupon in her
counter-affidavit. 23
Nor would this Court accept the contention of the private respondent that the parties
could not agree on a compromise and that they had to request the barangay captain to
issue a certification to file action. 24 The request is dated 23 June 1993, 25 or nearly one
and a half months after Criminal Cases Nos. 145233 and 145234 were filed with the
court a quo. Evidently, this was done to support their contention in the said court that, in
any event, there was substantial compliance with the requirement of referral to
the lupon. It must be stressed that the private respondents, after failing to appear at the
initial confrontation and long after the criminal cases were filed, had no right to demand
the issuance of a certification to file action.
The respondent judge thus acted with grave abuse of discretion in refusing to dismiss
Criminal Cases Nos. 145233 and 145234.
Before closing these cases, this Court wishes to emphasize the vital role which the
revised katarungang pambarangay law plays in the delivery of justice at the barangay
level, in promoting peace, stability, and progress therein, and in effectively preventing or
reducing expensive and wearisome litigation. Parties to disputes cognizable by
the lupon should, with sincerity, exhaust the remedies provided by that law, government
prosecutors should exercise due diligence in ascertaining compliance with it, and trial
courts should not hesitate to impose the appropriate sanctions for non-compliance
thereof.
WHEREFORE, the instant petition is GRANTED. The Orders of respondent Judge

of 2 July 1993 and 5 August 1993 in Criminal Cases Nos. 145233 and 1452334,
both entitled "People of the Philippines vs. Felicidad Uy" are hereby SET ASIDE
and the respondent Judge is hereby DIRECTED to DISMISS said cases within ten
(10) days from receipt of a copy of this decision.
Costs against the private respondents.SO ORDERED.
Cruz, Bellosillo, Quiason and Kapunan, JJ., concur.

WEEK 3
#Footnotes
1 Section 536, R.A. No. 7160.
2 People vs. Cuaresma, 172 SCRA 415 [1989]; Defensor-Santiago vs. Vasquez, 217
SCRA 633 [1993].
13 Sections 399 to 422.
14 Manila Railroad Co. vs. Attorney General, 20 Phil. 523 [1911].
15 133 SCRA 72, 75 [1984].
16 162 SCRA 504, 511 [1988].
17 Royales vs. Intermediate Appellate Court, 127 SCRA 470 [1984]; Ebol vs. Amin, 135
SCRA 438 [1985]; Gonzales vs. Court of Appeals, 151 SCRA 289 [1987].
18 Millare vs. Hernando, 151 SCRA 484 [1987].
19 Effective 15 November 1991.
21 Aducayen vs. Flores, 51 SCRA 78 [1973]; Libarios vs. Dabalos, 199 SCRA 48 [1991].
17. LANSANGAN VS CAISIP, GR 212987, AUGUST 6, 2018
August 6, 2018
G.R. No. 212987

WEEK 3
ELIZABETH M. LANSANGAN, Petitioner
vs.
ANTONIO S. CAISIP, Respondent
DECISION
PERLAS-BERNABE, J.: SECOND DIVISION
Assailed in this petition for review on certiorari1 are the Decision2 dated January 23,
2014 and the Resolution3 dated May 20, 2014 of the Court of Appeals (CA) in CA-G.R.
SP No. 129824, which affirmed the Decision 4 dated January 31, 2013 and the
Order5 dated April 2, 2013 of the Regional Trial Court of Capas, Tarlac, Branch 66 (RTC)
in Special Civil Action Case No. 58-C-12, upholding the motu proprio dismissal of
petitioner Elizabeth M. Lansangan's (petitioner) complaint for failure to refer the matter
for barangay conciliation proceedings before recourse to the courts.
The Facts
This case stemmed from a Complaint for Sum of Money and Damages 6 dated June 27,
2012 filed before the 2nd Municipal Circuit Trial Court of Capas-Bamban-Concepcion,
Tarlac (MCTC) by petitioner against respondent Antonio Caisip (respondent), docketed
as Civil Case No. 2738- 12.
Petitioner, a resident of Camanse Street, Purok 4, Rose Park, Concepcion, Tarlac,

alleged that respondent, a resident of Barangay Sto. Niño, Concepcion, Tarlac, executed
a promissory note7 in her favor in the amount of €2,522.00 payable in three (3)
installments. As respondent defaulted in his obligation under the promissory note and
refused to heed petitioner's demands to comply therewith, the latter was constrained to
file the said complaint.8
Since respondent failed to file any responsive pleading, petitioner moved to declare him
in default and for the MCTC to render judgment, 9 which was granted in an Order 10 dated
August 28, 2012. Accordingly, the case was submitted for resolution.11
The MCTC Ruling
In an Order12 dated September 3, 2012, the MCTC motu proprio dismissed without

prejudice the complaint for failure to comply with the provisions of Republic Act No. (RA)
7160,13 otherwise known as "The Local Government Code of 1991," which requires the
prior referral of the dispute between residents of the same barangay for conciliation
proceedings before the filing of a case in court.14
Petitioner moved for reconsideration,15 which was, however, denied in an Order 16 dated

September 25, 2012. In the said Order, the MCTC opined that petitioner's failure to refer
the matter for barangay conciliation proceedings rendered it without jurisdiction to rule
on her complaint.17 Aggrieved, she filed a petition for certiorari18 before the RTC.
The RTC Ruling
In a Decision19 dated January 31, 2013, the RTC upheld the motu proprio dismissal of

petitioner's complaint. It ruled that prior barangay conciliation proceedings before the
filing of the instant complaint is jurisdictional; thus, non-compliance therewith warrants its
dismissal.20
Petitioner moved for reconsideration,21 but the same was denied in an Order22 dated

April 2, 2013. Undeterred, she appealed23 to the CA.
The CA Ruling
In a Decision24 dated January 23, 2014, the CA affirmed the RTC Ruling. It held that
since the party-litigants are both residents of Concepcion, Tarlac, petitioner's complaint
WEEK 3
should have undergone the mandatory barangay conciliation proceedings before raising
the matter before the courts.25
Undaunted, Elizabeth moved for reconsideration,26 which was denied in a

Resolution27 dated May 20, 2014; hence, this petition.
The Issue Before the Court
The issue for the Court's resolution is whether or not the CA erred in upholding the motu
proprio dismissal of petitioner's complaint.
The Court's Ruling
The petition is meritorious.
Section 1, Rule 16 of the Rules of Court provides for the grounds that may be raised in a
motion to dismiss a complaint, to wit:
Section 1. Grounds. - Within the time for but before filing the answer to
the complaint or pleading asserting a claim, a motion to dismiss may be
made on any of the following grounds:
(a) That the court has no jurisdiction over the person of the def ending
party;
(b) That the court has no jurisdiction over the subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
(e) That there is another action pending between the same parties for the
same cause;
(f) That the cause of action is barred by a prior judgment or by the statute
of limitations;
(g) That the pleading asserting the claim states no cause of action;
(h) That the claim or demand set forth in the plaintiff's pleading has been
paid, waived, abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable under
the provisions of the statute of frauds; and
(j) That a condition precedent for filing the claim has not been
complied with. (Emphasis and underscoring supplied)
As a general rule, the above-listed grounds must be invoked by the party-litigant at the
earliest opportunity, as in a motion to dismiss or in the answer; otherwise, such grounds
are deemed waived. As an exception, however, the courts may order the motu
proprio dismissal of a case on the grounds of lack of jurisdiction over the subject
matter, litis pendentia, res judicata, and prescription of action, pursuant to Section 1,
Rule 9 of the Rules of Court, which reads:
Section 1. Defenses and objections not pleaded. - Defenses and

objections not pleaded either in a motion to dismiss or in the answer are
deemed waived.1âwphi1 However, when it appears from the pleadings or
the evidence on record that the court has no jurisdiction over the subject
matter, that there is another action pending between the same parties for

WEEK 3
the same cause, or that the action is barred by a prior judgment or by
statute of limitations, the court shall dismiss the claim.
In this case, the motu proprio dismissal of the complaint was anchored on petitioner's

failure to refer the matter for barangay conciliation proceedings which in certain
instances, is a condition precedent before filing a case in court. As Section 412 (a) of RA
7160 provides, the conduct of barangay conciliation proceedings is a pre-condition to the
filing of a complaint involving any matter within the authority of the lupon, to wit:
Section 412. Conciliation. - (a) Pre-condition to Filing of Complaint in

Court. - No complaint, petition, action, or proceeding involving any matter
within the authority of the !upon shall be filed or instituted directly in court
or any other government office for adjudication, unless there has been a
confrontation between the parties before the lupon chairman or
the pangkat, and that no conciliation or settlement has been reached as
certified by the lupon secretary or pangkat secretary as attested to by
the lupon or pangkat chairman or unless the settlement has been
repudiated by the parties thereto.
Under Section 409 (a) of RA 7160, "[d]isputes between persons actually residing in the
same barangay [(as in the parties in this case)] shall be brought for amicable settlement
before the Zupan of said barangay."
Lifted from Presidential Decree No. 1508,28 otherwise known as the "Katarungang

Pambarangay Law," the primordial objective of a prior barangay conciliation is to reduce
the number of court litigations and prevent the deterioration of the quality of justice which
has been brought by the indiscriminate filing of cases in courts. Subject to certain
exemptions,29 a party's failure to comply with this requirement before filing a case in
court would render his complaint dismissible on the ground of failure to comply with a
condition precedent, pursuant to Section 1 (j), Rule 16 of the Rules of Court.30
Notably, in Aquino v. Aure,31 the Court clarified that such conciliation process is not a

jurisdictional requirement, such that noncompliance therewith cannot affect the
jurisdiction which the court has otherwise acquired over the subject matter or
over the person of the defendant,32 viz.:
Ordinarily, non-compliance with the condition precedent [of prior

barangay conciliation] could affect the sufficiency of the plaintiff's cause of
action and make his complaint vulnerable to dismissal on [the] ground of
lack of cause of action or prematurity; but the same would not prevent a
court of competent jurisdiction from exercising its power of adjudication
over the case before it, where the defendants, as in this case, failed to
object to such exercise of jurisdiction in their answer and even during the
entire proceedings a quo.33
Similarly, in Banares II v. Balising,34 it was mentioned that the non-referral of a case for
barangay conciliation when so required under the law is not jurisdictional in
nature, and may therefore be deemed waived if not raised seasonably in a motion to
dismiss or in a responsive pleading.35
Here, the ground of non-compliance with a condition precedent, i.e., undergoing prior

barangay conciliation proceedings, was not invoked at the earliest opportunity, as in fact,
respondent was declared in default for failure to file a responsive pleading despite due
notice. Therefore, it was grave error for the courts a quo to order the dismissal of
petitioner's complaint on said ground. Hence, in order to rectify the situation, the Court
finds it proper that the case be reinstated and remanded to the MCTC, which is the court
of origin, for its resolution on the merits.
WHEREFORE, the petition is GRANTED. The Decision dated January 23, 2014 and the
Resolution dated May 20, 2014 of the Court of Appeals in CA-G.R. SP No. 129824 are
hereby REVERSED and SET ASIDE. Accordingly, Civil Case No. 2738-12 is

WEEK 3
hereby REINSTATED and REMANDED to the 2nd Municipal Circuit Trial Court of
Capas-Bamban- Concepcion, Tarlac for resolution on the merits, with reasonable
dispatch.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
Footnotes
13
Entitled "AN ACT PROVIDING FOR A LOCAL GOVERNMENT CODE OF 1991"
(January 1, 1992).
28
Entitled "ESTABLISHING A SYSTEM OF AMICABLY SETTLING DISPUTES AT THE
BARANGAY LEVEL," approved on June 11, 1978.
29
See Sections 408 and 412 (b) of RA 7160.
See Aquino v. Aure, 569 Phil. 403 (2008).

30
32
Id. at 416, citing Presco v. CA, 270 Phil. 322, 332 (1990).
33
Id. at 417, citing Royales v. Intermediate Appellate Court, 212 Phil. 432, 435-436
(1984).
384 Phil. 567 (2000).

34
35
Id. at 583 (2000); citations omitted.

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1.

MARIANO VS COMELEC, 242 SCRA 211, 1995

G.R. No. 118577 March 7, 1995

JUANITO MARIANO, JR. et al., petitioners,

G.R. No. 118627 March 7, 1995

3. Section 52 of R.A. No. 7854 is unconstitutional for:

We find no merit in the petitions.

We hold that the existence of a boundary dispute does not per se present an

xxx xxx xxx

We cannot entertain this challenge to the constitutionality of section 51. The

Sec. 450. Requisite for creation. — (a) A municipality or a cluster of barangays may be

xxx xxx xxx

The constitution classifies cities as either highly urbanized or component. Section 12 of

And Section 451 of R.A. No. 7160 provides:

Sec. 451. Cities Classified. — A city may either be component or highly

In short, the clause refers to a general reapportionment law.

METROPOLITAN MANILA AREA

xxx xxx xxx

xxx xxx xxx

2 Sec. 7. Creation and Conversion. — As a general rule, the creation of a local

Compliance with the foregoing indicators shall be attested to by the Department of

xxx xxx xxx

Sec. 450. Requisites for Creation. — . . .

5 Dumlao v. COMELEC, 95 SCRA 392 (19180); Cruz, Constitutional Law

6 Section 5(4), Article VI of the Constitution provides:

7 Section 26(1), Article VI of the Constitution provides:

8 G.R. No. 114783, December 8, 1994.

9 Section 5(1), Article VI.

2. SULTAN CAMID VS OFFICE OF THE PRESIDENT, GR 161414, JANUARY 17,

G.R. No. 161414 January 17, 2005

SULTAN OSOP B. CAMID, petitioner,

Petitioner Sultan Osop B. Camid (Camid) represents himself as a current resident of

The petition assails a Certification dated 21 November 2003, issued by the Bureau of

Section 442. Requisites for Creation. - xxx

The importance of proper factual ascertainment cannot be gainsaid, especially in light of

What is clearly essential is a factual demonstration of the continuous exercise by the

To understand the applicability of Municipality of San Narciso and Section 442(b) of the

In the 1969 case of Municipality of Malabang v. Benito,39 what was challenged is the

This principle was most recently affirmed in 1988, in Municipality of Kapalong v.

Nevertheless, when the Court decided Municipality of San Narciso49 in 1995, it indicated

The holding in San Narciso was subsequently affirmed in Municipality of Candijay v.

Indeed Sinacaban has attained de jure status by virtue of the Ordinance appended to

From this survey of relevant jurisprudence, we can gather the applicable

Is Andong similarly entitled to recognition as a de facto municipal corporation? It is not.

WHEREFORE, the Petition is DISMISSED for lack of merit. Costs against

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,

321 Phil. 922 (1995).

Municipality of Candijay v. Court of Appeals, supra note 56 at 930.

G.R. No. 105746 December 2, 1996

MUNICIPALITY OF JIMENEZ, through its MAYOR ELEUTERIO A. QUIMBO, VICE-

The antecedent facts are as follows:

EXECUTIVE ORDER NO. 258

CREATING THE MUNICIPALITY OF SINACABAN,

(SGD.) ELPIDIO QUIRINO

(SGD.) TEODORO EVANGELISTA

On March 20, 1990, Jimenez filed a petition for certiorari, prohibition, and mandamus in

A. Whether the Municipality of Sinacaban is a legal juridical entity, duly created in

B. If not, whether it is a de facto juridical entity;

Indeed Sinacaban has attained de jure status by virtue of the Ordinance appended to

Sec. 2167. Municipal boundary disputes. — How settled. — Disputes as to jurisdiction of

As held in Pelaez v. Auditor General, 12 the power of provincial boards to settle boundary

6 B.P. Blg. 337, §134 provides: