G.R. No.
118127 April 12, 2005
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the
City of Manila, HON. JOSELITO L. ATIENZA, in his capacity as
Vice-Mayor of the City of Manila and Presiding Officer of the
City Council of Manila, HON. ERNESTO A. NIEVA, HON.
GONZALO P. GONZALES, HON. AVELINO S. CAILIAN, HON.
ROBERTO C. OCAMPO, HON. ALBERTO DOMINGO, HON.
HONORIO U. LOPEZ, HON. FRANCISCO G. VARONA, JR.,
HON. ROMUALDO S. MARANAN, HON. NESTOR C. PONCE,
JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F.
CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL
M. ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO
C. ANG, HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ,
HON. CHIKA G. GO, HON. VICTORIANO A. MELENDEZ, HON.
ERNESTO V.P. MACEDA, JR., HON. ROLANDO P. NIETO,
HON. DANILO V. ROLEDA, HON. GERINO A. TOLENTINO, JR.,
HON. MA. PAZ E. HERRERA, HON. JOEY D. HIZON, HON.
FELIXBERTO D. ESPIRITU, HON. KARLO Q. BUTIONG, HON.
ROGELIO P. DELA PAZ, HON. BERNARDO D. RAGAZA, HON.
MA. CORAZON R. CABALLES, HON. CASIMIRO C. SISON,
HON. BIENVINIDO M. ABANTE, JR., HON. MA. LOURDES M.
ISIP, HON. ALEXANDER S. RICAFORT, HON. ERNESTO F.
RIVERA, HON. LEONARDO L. ANGAT, and HON. JOCELYN B.
DAWIS, in their capacity as councilors of the City of
Manila, Petitioner,
vs.
HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC,
Manila and MALATE TOURIST DEVELOPMENT
CORPORATION, Respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel good after
and what is immoral is what you feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act,
if performed by oneself, is less immoral than if performed
by someone else, who would be well-intentioned in his
dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Court's commitment to the protection of morals is secondary
to its fealty to the fundamental law of the land. It is foremost a
guardian of the Constitution but not the conscience of individuals.
And if it need be, the Court will not hesitate to "make the hammer
fall, and heavily" in the words of Justice Laurel, and uphold the
constitutional guarantees when faced with laws that, though not
lacking in zeal to promote morality, nevertheless fail to pass the
test of constitutionality.
The pivotal issue in this Petition1 under Rule 45 (then Rule 42) of
the Revised Rules on Civil Procedure seeking the reversal of
the Decision2 in Civil Case No. 93-66511 of the Regional Trial
Court (RTC) of Manila, Branch 18 (lower court),3 is the validity of
Ordinance No. 7783 (the Ordinance) of the City of Manila.4
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation
(MTDC) is a corporation engaged in the business of operating
hotels, motels, hostels and lodging houses.5 It built and opened
Victoria Court in Malate which was licensed as a motel although
duly accredited with the Department of Tourism as a hotel.6 On 28
June 1993, MTDC filed a Petition for Declaratory Relief with
Prayer for a Writ of Preliminary Injunction and/or Temporary
Restraining Order7 (RTC Petition) with the lower court impleading
as defendants, herein petitioners City of Manila, Hon. Alfredo S.
Lim (Lim), Hon. Joselito L. Atienza, and the members of the City
Council of Manila (City Council). MTDC prayed that
the Ordinance, insofar as it includes motels and inns as among its
prohibited establishments, be declared invalid and
unconstitutional.8
Enacted by the City Council9 on 9 March 1993 and approved by 8. Discotheques
petitioner City Mayor on 30 March 1993, the said Ordinance is
entitled– 9. Cabarets

AN ORDINANCE PROHIBITING THE ESTABLISHMENT 10. Dance Halls

OR OPERATION OF BUSINESSES PROVIDING
CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, 11. Motels
SERVICES AND FACILITIES IN THE ERMITA-MALATE
AREA, PRESCRIBING PENALTIES FOR VIOLATION
12. Inns
THEREOF, AND FOR OTHER PURPOSES.10
SEC. 2 The City Mayor, the City Treasurer or any person
The Ordinance is reproduced in full, hereunder:
acting in behalf of the said officials are prohibited from
issuing permits, temporary or otherwise, or from
SECTION 1. Any provision of existing laws and ordinances granting licenses and accepting payments for the
to the contrary notwithstanding, no person, partnership, operation of business enumerated in the preceding
corporation or entity shall, in the Ermita-Malate section.
area bounded by Teodoro M. Kalaw Sr. Street in the
North, Taft Avenue in the East, Vito Cruz Street in the
SEC. 3. Owners and/or operator of
South and Roxas Boulevard in the West, pursuant to P.D.
establishments engaged in, or devoted to, the businesses
499 be allowed or authorized to contract and engage
enumerated in Section 1 hereof are hereby given three (3)
in, any business providing certain forms of
months from the date of approval of this ordinance
amusement, entertainment, services and facilities
within which to wind up business operations or to
where women are used as tools in entertainment and
transfer to any place outside of the Ermita-Malate area
which tend to disturb the community, annoy the
or convert said businesses to other kinds of business
inhabitants, and adversely affect the social and moral
allowable within the area, such as but not limited to:
welfare of the community, such as but not limited to:
1. Curio or antique shop
1. Sauna Parlors
2. Souvenir Shops
2. Massage Parlors
3. Handicrafts display centers
3. Karaoke Bars
4. Art galleries
4. Beerhouses
5. Records and music shops
5. Night Clubs
6. Restaurants
6. Day Clubs
7. Coffee shops
7. Super Clubs
 8. Flower shops
9. Music lounge and sing-along restaurants, with
well-defined activities for wholesome family
entertainment that cater to both local and foreign
clientele.
10. Theaters engaged in the exhibition, not only of
motion pictures but also of cultural shows, stage
and theatrical plays, art exhibitions, concerts and
the like.
11. Businesses allowable within the law and
medium intensity districts as provided for in the
zoning ordinances for Metropolitan Manila, except
new warehouse or open-storage depot, dock or
yard, motor repair shop, gasoline service station,
light industry with any machinery, or funeral
establishments.
SEC. 4. Any person violating any provisions of this
ordinance, shall upon conviction, be punished by
imprisonment of one (1) year or fine of FIVE
THOUSAND (P5,000.00) PESOS, or both, at the
discretion of the Court, PROVIDED, that in case of juridical
person, the President, the General Manager, or person-in-
charge of operation shall be liable thereof; PROVIDED
FURTHER, that in case of subsequent violation and
conviction, the premises of the erring establishment
shall be closed and padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session
today, March 9, 1993.
Approved by His Honor, the Mayor on March 30, 1993.
(Emphasis supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously
and improperly included in its enumeration of prohibited
establishments, motels and inns such as MTDC's Victoria Court
considering that these were not establishments for "amusement"
or "entertainment" and they were not "services or facilities for
entertainment," nor did they use women as "tools for
entertainment," and neither did they "disturb the community,"
"annoy the inhabitants" or "adversely affect the social and moral
welfare of the community."11
MTDC further advanced that the Ordinance was invalid and
unconstitutional for the following reasons: (1) The City Council has
no power to prohibit the operation of motels as Section 458 (a) 4
(iv)12 of the Local Government Code of 1991 (the Code) grants to
the City Council only the power to regulate the establishment,
operation and maintenance of hotels, motels, inns, pension
houses, lodging houses and other similar establishments; (2) The
Ordinance is void as it is violative of Presidential Decree (P.D.) No.
49913 which specifically declared portions of the Ermita-Malate area
as a commercial zone with certain restrictions; (3)
The Ordinance does not constitute a proper exercise of police
power as the compulsory closure of the motel business has no
reasonable relation to the legitimate municipal interests sought to
be protected; (4) The Ordinance constitutes an ex post facto law
by punishing the operation of Victoria Court which was a legitimate
business prior to its enactment; (5) The Ordinance violates
MTDC's constitutional rights in that: (a) it is confiscatory and
constitutes an invasion of plaintiff's property rights; (b) the City
Council has no power to find as a fact that a particular thing is a
nuisance per se nor does it have the power to extrajudicially
destroy it; and (6) The Ordinance constitutes a denial of equal
protection under the law as no reasonable basis exists for
prohibiting the operation of motels and inns, but not pension
houses, hotels, lodging houses or other similar establishments,
and for prohibiting said business in the Ermita-Malate area but not
outside of this area.14
In their Answer15 dated 23 July 1993, petitioners City of Manila and
Lim maintained that the City Council had the power to "prohibit
certain forms of entertainment in order to protect the social and
moral welfare of the community" as provided for in Section 458 (a)
4 (vii) of the Local Government Code,16 which reads, thus:
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this
Code and in the proper exercise of the corporate powers of
the city as provided for under Section 22 of this Code, and
shall:
....
(4) Regulate activities relative to the use of land, buildings
and structures within the city in order to promote the
general welfare and for said purpose shall:
....
(vii) Regulate the establishment, operation, and
maintenance of any entertainment or amusement
facilities, including theatrical performances,
circuses, billiard pools, public dancing schools,
public dance halls, sauna baths, massage parlors,
and other places for entertainment or amusement;
regulate such other events or activities for
amusement or entertainment, particularly those
which tend to disturb the community or annoy the
inhabitants, or require the suspension or
suppression of the same; or, prohibit certain forms
of amusement or entertainment in order to protect
the social and moral welfare of the community.
Citing Kwong Sing v. City of Manila,17 petitioners insisted that the
power of regulation spoken of in the above-quoted provision
included the power to control, to govern and to restrain places of
exhibition and amusement.18
Petitioners likewise asserted that the Ordinance was enacted by
the City Council of Manila to protect the social and moral welfare
of the community in conjunction with its police power as found in
Article III, Section 18(kk) of Republic Act No. 409,19 otherwise
known as the Revised Charter of the City of Manila (Revised
Charter of Manila)20 which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
. . .
Section 18. Legislative powers. – The Municipal Board
shall have the following legislative powers:
. . .
(kk) To enact all ordinances it may deem necessary and
proper for the sanitation and safety, the furtherance of the
prosperity, and the promotion of the morality, peace, good
order, comfort, convenience, and general welfare of the
city and its inhabitants, and such others as may be
necessary to carry into effect and discharge the powers
and duties conferred by this chapter; and to fix penalties
for the violation of ordinances which shall not exceed two
hundred pesos fine or six months' imprisonment, or both
such fine and imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption
of validity; hence, private respondent had the burden to prove its
illegality or unconstitutionality.21
Petitioners also maintained that there was no inconsistency
between P.D. 499 and the Ordinance as the latter simply
disauthorized certain forms of businesses and allowed the Ermita-
Malate area to remain a commercial zone.22 The Ordinance, the
petitioners likewise claimed, cannot be assailed as ex post
facto as it was prospective in operation.23 The Ordinance also did
not infringe the equal protection clause and cannot be denounced
as class legislation as there existed substantial and real
differences between the Ermita-Malate area and other places in
the City of Manila.24
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr.
(Judge Laguio) issued an ex-parte temporary restraining order
against the enforcement of the Ordinance.25 And on 16 July 1993,
again in an intrepid gesture, he granted the writ of preliminary
injunction prayed for by MTDC.26
After trial, on 25 November 1994, Judge Laguio rendered the
assailed Decision, enjoining the petitioners from implementing
the Ordinance. The dispositive portion of said Decision reads:27
WHEREFORE, judgment is hereby rendered declaring
Ordinance No. 778[3], Series of 1993, of the City of Manila
null and void, and making permanent the writ of
preliminary injunction that had been issued by this Court
against the defendant. No costs.
SO ORDERED.28
Petitioners filed with the lower court a Notice of Appeal29 on 12
December 1994, manifesting that they are elevating the case to
this Court under then Rule 42 on pure questions of law.30
On 11 January 1995, petitioners filed the present Petition, alleging
that the following errors were committed by the lower court in its
ruling: (1) It erred in concluding that the subject ordinance is ultra
vires, or otherwise, unfair, unreasonable and oppressive exercise
of police power; (2) It erred in holding that the
questioned Ordinance contravenes P.D. 49931 which allows
operators of all kinds of commercial establishments, except those
specified therein; and (3) It erred in declaring the Ordinance void
and unconstitutional.32
In the Petition and in its Memorandum,33 petitioners in essence
repeat the assertions they made before the lower court. They
contend that the assailed Ordinance was enacted in the exercise
of the inherent and plenary power of the State and the general
welfare clause exercised by local government units provided for in
Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and
conjunctively, Section 458 (a) 4 (vii) of the Code.34 They allege that
the Ordinance is a valid exercise of police power; it does not
contravene P.D. 499; and that it enjoys the presumption of
validity.35
In its Memorandum36 dated 27 May 1996, private respondent
maintains that the Ordinance is ultra vires and that it is void for
being repugnant to the general law. It reiterates that the
questioned Ordinance is not a valid exercise of police power; that
it is violative of due process, confiscatory and amounts to an
arbitrary interference with its lawful business; that it is violative of
the equal protection clause; and that it confers on petitioner City
Mayor or any officer unregulated discretion in the execution of
the Ordinance absent rules to guide and control his actions.
This is an opportune time to express the Court's deep sentiment
and tenderness for the Ermita-Malate area being its home for
several decades. A long-time resident, the Court witnessed the
area's many turn of events. It relished its glory days and endured
its days of infamy. Much as the Court harks back to the
resplendent era of the Old Manila and yearns to restore its lost
grandeur, it believes that the Ordinance is not the fitting means to
that end. The Court is of the opinion, and so holds, that the lower
court did not err in declaring the Ordinance, as it did, ultra
vires and therefore null and void.
The Ordinance is so replete with constitutional infirmities that
almost every sentence thereof violates a constitutional provision.
The prohibitions and sanctions therein transgress the cardinal
rights of persons enshrined by the Constitution. The Court is called
upon to shelter these rights from attempts at rendering them
worthless.
The tests of a valid ordinance are well established. A long line of
decisions has held that for an ordinance to be valid, it must not
only be within the corporate powers of the local government unit to
enact and must be passed according to the procedure prescribed
by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any
statute; (2) must not be unfair or oppressive; (3) must not be
partial or discriminatory; (4) must not prohibit but may regulate
trade; (5) must be general and consistent with public policy; and
(6) must not be unreasonable.37
Anent the first criterion, ordinances shall only be valid when they
are not contrary to the Constitution and to the
laws.38 The Ordinance must satisfy two requirements: it must pass
muster under the test of constitutionality and the test of
consistency with the prevailing laws. That ordinances should be
constitutional uphold the principle of the supremacy of the
Constitution. The requirement that the enactment must not violate
existing law gives stress to the precept that local government units
are able to legislate only by virtue of their derivative legislative
power, a delegation of legislative power from the national
legislature. The delegate cannot be superior to the principal or
exercise powers higher than those of the latter.39
This relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in
the Constitution strengthening the policy of local autonomy. The
national legislature is still the principal of the local government
units, which cannot defy its will or modify or violate it.40
The Ordinance was passed by the City Council in the exercise of
its police power, an enactment of the City Council acting as agent
of Congress. Local government units, as agencies of the State,
are endowed with police power in order to effectively accomplish
and carry out the declared objects of their creation.41 This
delegated police power is found in Section 16 of the Code, known
as the general welfare clause, viz:
SECTION 16. General Welfare.Every local government
unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the
promotion of the general welfare. Within their respective
territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance
the right of the people to a balanced ecology, encourage
and support the development of appropriate and self-
reliant scientific and technological capabilities, improve
public morals, enhance economic prosperity and social
justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and
convenience of their inhabitants.
Local government units exercise police power through their
respective legislative bodies; in this case, the sangguniang
panlungsod or the city council. The Code empowers the legislative
bodies to "enact ordinances, approve resolutions and appropriate
funds for the general welfare of the province/city/municipality and
its inhabitants pursuant to Section 16 of the Code and in the
proper exercise of the corporate powers of the province/city/
municipality provided under the Code.42 The inquiry in this Petition
is concerned with the validity of the exercise of such delegated
power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-
reaching, is subordinate to the constitutional limitations thereon;
and is subject to the limitation that its exercise must be reasonable
and for the public good.43 In the case at bar, the enactment of
the Ordinance was an invalid exercise of delegated power as it is
unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the
protection of life, liberty, and property, and the promotion
of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy.44
SEC. 14. The State recognizes the role of women in
nation-building, and shall ensure the fundamental equality
before the law of women and men.45
 SEC. 1. No person shall be deprived of life, liberty or
property without due process of law, nor shall any person
be denied the equal protection of laws.46
Sec. 9. Private property shall not be taken for public use
without just compensation.47
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat
"(N)o person shall be deprived of life, liberty or property without
due process of law. . . ."48
There is no controlling and precise definition of due process. It
furnishes though a standard to which governmental action should
conform in order that deprivation of life, liberty or property, in each
appropriate case, be valid. This standard is aptly described as a
responsiveness to the supremacy of reason, obedience to the
dictates of justice,49 and as such it is a limitation upon the exercise
of the police power.50
The purpose of the guaranty is to prevent governmental
encroachment against the life, liberty and property of individuals;
to secure the individual from the arbitrary exercise of the powers of
the government, unrestrained by the established principles of
private rights and distributive justice; to protect property from
confiscation by legislative enactments, from seizure, forfeiture, and
destruction without a trial and conviction by the ordinary mode of
judicial procedure; and to secure to all persons equal and impartial
justice and the benefit of the general law.51
The guaranty serves as a protection against arbitrary regulation,
and private corporations and partnerships are "persons" within the
scope of the guaranty insofar as their property is concerned.52
This clause has been interpreted as imposing two separate limits
on government, usually called "procedural due process" and
"substantive due process."
Procedural due process, as the phrase implies, refers to the
procedures that the government must follow before it deprives a
person of life, liberty, or property. Classic procedural due process
issues are concerned with what kind of notice and what form of
hearing the government must provide when it takes a particular
action.53
Substantive due process, as that phrase connotes, asks whether
the government has an adequate reason for taking away a
person's life, liberty, or property. In other words, substantive due
process looks to whether there is a sufficient justification for the
government's action.54 Case law in the United States (U.S.) tells us
that whether there is such a justification depends very much on
the level of scrutiny used.55 For example, if a law is in an area
where only rational basis review is applied, substantive due
process is met so long as the law is rationally related to a
legitimate government purpose. But if it is an area where strict
scrutiny is used, such as for protecting fundamental rights, then
the government will meet substantive due process only if it can
prove that the law is necessary to achieve a compelling
government purpose.56
The police power granted to local government units must always
be exercised with utmost observance of the rights of the people to
due process and equal protection of the law. Such power cannot
be exercised whimsically, arbitrarily or despotically57 as its exercise
is subject to a qualification, limitation or restriction demanded by
the respect and regard due to the prescription of the fundamental
law, particularly those forming part of the Bill of Rights. Individual
rights, it bears emphasis, may be adversely affected only to the
extent that may fairly be required by the legitimate demands of
public interest or public welfare.58 Due process requires the intrinsic
validity of the law in interfering with the rights of the person to his
life, liberty and property.59
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the
rationale for the enactment of the Ordinance, and to free it from
the imputation of constitutional infirmity, not only must it appear
that the interests of the public generally, as distinguished from
those of a particular class, require an interference with private
rights, but the means adopted must be reasonably necessary for
the accomplishment of the purpose and not unduly oppressive
upon individuals.60 It must be evident that no other alternative for
the accomplishment of the purpose less intrusive of private rights
can work. A reasonable relation must exist between the purposes
of the police measure and the means employed for its
accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property
will not be permitted to be arbitrarily invaded.61
Lacking a concurrence of these two requisites, the police measure
shall be struck down as an arbitrary intrusion into private
rights62 a violation of the due process clause.
The Ordinance was enacted to address and arrest the social ills
purportedly spawned by the establishments in the Ermita-Malate
area which are allegedly operated under the deceptive veneer of
legitimate, licensed and tax-paying nightclubs, bars, karaoke bars,
girlie houses, cocktail lounges, hotels and motels. Petitioners
insist that even the Court in the case of Ermita-Malate Hotel and
Motel Operators Association, Inc. v. City Mayor of Manila63 had
already taken judicial notice of the "alarming increase in the rate of
prostitution, adultery and fornication in Manila traceable in great
part to existence of motels, which provide a necessary atmosphere
for clandestine entry, presence and exit and thus become the ideal
haven for prostitutes and thrill-seekers."64
The object of the Ordinance was, accordingly, the promotion and
protection of the social and moral values of the community.
Granting for the sake of argument that the objectives of
the Ordinance are within the scope of the City Council's police
powers, the means employed for the accomplishment thereof were
unreasonable and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of
Manila to make all reasonable regulations looking to the promotion
of the moral and social values of the community. However, the
worthy aim of fostering public morals and the eradication of the
community's social ills can be achieved through means less
restrictive of private rights; it can be attained by reasonable
restrictions rather than by an absolute prohibition. The closing
down and transfer of businesses or their conversion into
businesses "allowed" under the Ordinance have no reasonable
relation to the accomplishment of its purposes. Otherwise stated,
the prohibition of the enumerated establishments will not per
se protect and promote the social and moral welfare of the
community; it will not in itself eradicate the alluded social ills of
prostitution, adultery, fornication nor will it arrest the spread of
sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with
houses of ill-repute and establishments of the like which the City
Council may lawfully prohibit,65 it is baseless and insupportable to
bring within that classification sauna parlors, massage parlors,
karaoke bars, night clubs, day clubs, super clubs, discotheques,
cabarets, dance halls, motels and inns. This is not warranted
under the accepted definitions of these terms. The enumerated
establishments are lawful pursuits which are not per se offensive
to the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs
and as venues to further the illegal prostitution is of no moment.
We lay stress on the acrid truth that sexual immorality, being a
human frailty, may take place in the most innocent of places that it
may even take place in the substitute establishments enumerated
under Section 3 of the Ordinance. If the flawed logic of
the Ordinance were to be followed, in the remote instance that an
immoral sexual act transpires in a church cloister or a court
chamber, we would behold the spectacle of the City of Manila
ordering the closure of the church or court concerned. Every
house, building, park, curb, street or even vehicles for that matter
will not be exempt from the prohibition. Simply because there are
no "pure" places where there are impure men. Indeed, even the
Scripture and the Tradition of Christians churches continually
recall the presence and universality of sin in man's history.66
The problem, it needs to be pointed out, is not the establishment,
which by its nature cannot be said to be injurious to the health or
comfort of the community and which in itself is amoral, but the
deplorable human activity that may occur within its premises.
While a motel may be used as a venue for immoral sexual activity,
it cannot for that reason alone be punished. It cannot be classified
as a house of ill-repute or as a nuisance per se on a mere
likelihood or a naked assumption. If that were so and if that were
allowed, then the Ermita-Malate area would not only be purged of
its supposed social ills, it would be extinguished of its soul as well
as every human activity, reprehensible or not, in its every nook
and cranny would be laid bare to the estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the
core issues of morality. Try as the Ordinance may to shape
morality, it should not foster the illusion that it can make a moral
man out of it because immorality is not a thing, a building or
establishment; it is in the hearts of men. The City Council instead
should regulate human conduct that occurs inside the
establishments, but not to the detriment of liberty and privacy
which are covenants, premiums and blessings of democracy.
While petitioners' earnestness at curbing clearly objectionable
social ills is commendable, they unwittingly punish even the
proprietors and operators of "wholesome," "innocent"
establishments. In the instant case, there is a clear invasion of
personal or property rights, personal in the case of those
individuals desirous of owning, operating and patronizing those
motels and property in terms of the investments made and the
salaries to be paid to those therein employed. If the City of Manila
so desires to put an end to prostitution, fornication and other social
ills, it can instead impose reasonable regulations such as daily
inspections of the establishments for any violation of the
conditions of their licenses or permits; it may exercise its authority
to suspend or revoke their licenses for these violations;67 and it may
even impose increased license fees. In other words, there are
other means to reasonably accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage
parlors, karaoke bars, beerhouses, night clubs, day clubs, super
clubs, discotheques, cabarets, dance halls, motels and inns in the
Ermita-Malate area. In Section 3 thereof, owners and/or operators
of the enumerated establishments are given three (3) months from
the date of approval of the Ordinance within which "to wind up
business operations or to transfer to any place outside the Ermita-
Malate area or convert said businesses to other kinds of business
allowable within the area." Further, it states in Section 4 that in
cases of subsequent violations of the provisions of the Ordinance,
the "premises of the erring establishment shall be closed and
padlocked permanently."
It is readily apparent that the means employed by
the Ordinance for the achievement of its purposes, the
governmental interference itself, infringes on the constitutional
guarantees of a person's fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice
Malcolm to include "the right to exist and the right to be free from
arbitrary restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen,
but is deemed to embrace the right of man to enjoy the facilities
with which he has been endowed by his Creator, subject only to
such restraint as are necessary for the common welfare."68 In
accordance with this case, the rights of the citizen to be free to use
his faculties in all lawful ways; to live and work where he will; to
earn his livelihood by any lawful calling; and to pursue any
avocation are all deemed embraced in the concept of liberty.69
The U.S. Supreme Court in the case of Roth v. Board of
Regents,70 sought to clarify the meaning of "liberty." It said:
While the Court has not attempted to define with exactness
the liberty. . . guaranteed [by the Fifth and Fourteenth
Amendments], the term denotes not merely freedom from
bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, establish a
home and bring up children, to worship God according to
the dictates of his own conscience, and generally to enjoy
those privileges long recognized…as essential to the
orderly pursuit of happiness by free men. In a Constitution
for a free people, there can be no doubt that the meaning
of "liberty" must be broad indeed.
In another case, it also confirmed that liberty protected by the due
process clause includes personal decisions relating to marriage,
procreation, contraception, family relationships, child rearing, and
education. In explaining the respect the Constitution demands for
the autonomy of the person in making these choices, the U.S.
Supreme Court explained:
These matters, involving the most intimate and personal
choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty
protected by the Fourteenth Amendment. At the heart of
liberty is the right to define one's own concept of existence,
of meaning, of universe, and of the mystery of human life.
Beliefs about these matters could not define the attributes
of personhood where they formed under compulsion of the
State.71
Persons desirous to own, operate and patronize the enumerated
establishments under Section 1 of the Ordinance may seek
autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right
to autonomy to consummate their bonds in intimate sexual
conduct within the motel's premisesbe it stressed that their
consensual sexual behavior does not contravene any fundamental
state policy as contained in the Constitution.72 Adults have a right
to choose to forge such relationships with others in the confines of
their own private lives and still retain their dignity as free persons.
The liberty protected by the Constitution allows persons the right to
make this choice.73 Their right to liberty under the due process
clause gives them the full right to engage in their conduct without
intervention of the government, as long as they do not run afoul of
the law. Liberty should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from
unlawful government restraint; it must include privacy as well, if it
is to be a repository of freedom. The right to be let alone is the
beginning of all freedomit is the most comprehensive of rights
and the right most valued by civilized men.74
The concept of liberty compels respect for the individual whose
claim to privacy and interference demands respect. As the case
of Morfe v. Mutuc,75 borrowing the words of Laski, so very aptly
stated:
Man is one among many, obstinately refusing reduction to
unity. His separateness, his isolation, are indefeasible;
indeed, they are so fundamental that they are the basis on
which his civic obligations are built. He cannot abandon
the consequences of his isolation, which are, broadly
speaking, that his experience is private, and the will built
out of that experience personal to himself. If he surrenders
his will to others, he surrenders himself. If his will is set by
the will of others, he ceases to be a master of himself. I
cannot believe that a man no longer a master of himself is
in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized
in Morfe, the invasion of which should be justified by a compelling
state interest. Morfe accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully
deserving of constitutional protection. Governmental powers
should stop short of certain intrusions into the personal life of the
citizen.76
There is a great temptation to have an extended discussion on
these civil liberties but the Court chooses to exercise restraint and
restrict itself to the issues presented when it should. The previous
pronouncements of the Court are not to be interpreted as a license
for adults to engage in criminal conduct. The reprehensibility of
such conduct is not diminished. The Court only reaffirms and
guarantees their right to make this choice. Should they be
prosecuted for their illegal conduct, they should suffer the
consequences of the choice they have made. That, ultimately, is
their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it
substantially divests the respondent of the beneficial use of its
property.77 The Ordinance in Section 1 thereof forbids the running
of the enumerated businesses in the Ermita-Malate area and in
Section 3 instructs its owners/operators to wind up business
operations or to transfer outside the area or convert said
businesses into allowed businesses. An ordinance which
permanently restricts the use of property that it can not be used for
any reasonable purpose goes beyond regulation and must be
recognized as a taking of the property without just
compensation.78 It is intrusive and violative of the private property
rights of individuals.
The Constitution expressly provides in Article III, Section 9, that
"private property shall not be taken for public use without just
compensation." The provision is the most important protection of
property rights in the Constitution. This is a restriction on the
general power of the government to take property. The
constitutional provision is about ensuring that the government
does not confiscate the property of some to give it to others. In
part too, it is about loss spreading. If the government takes away a
person's property to benefit society, then society should pay. The
principal purpose of the guarantee is "to bar the Government from
forcing some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole.79
There are two different types of taking that can be identified. A
"possessory" taking occurs when the government confiscates or
physically occupies property. A "regulatory" taking occurs when
the government's regulation leaves no reasonable economically
viable use of the property.80
In the landmark case of Pennsylvania Coal v. Mahon,81 it was held
that a taking also could be found if government regulation of the
use of property went "too far." When regulation reaches a certain
magnitude, in most if not in all cases there must be an exercise of
eminent domain and compensation to support the act. While
property may be regulated to a certain extent, if regulation goes
too far it will be recognized as a taking.82
No formula or rule can be devised to answer the questions of what
is too far and when regulation becomes a taking. In Mahon,
Justice Holmes recognized that it was "a question of degree and
therefore cannot be disposed of by general propositions." On
many other occasions as well, the U.S. Supreme Court has said
that the issue of when regulation constitutes a taking is a matter of
considering the facts in each case. The Court asks whether justice
and fairness require that the economic loss caused by public
action must be compensated by the government and thus borne
by the public as a whole, or whether the loss should remain
concentrated on those few persons subject to the public action.83
What is crucial in judicial consideration of regulatory takings is that
government regulation is a taking if it leaves no reasonable
economically viable use of property in a manner that interferes
with reasonable expectations for use.84 A regulation that
permanently denies all economically beneficial or productive use
of land is, from the owner's point of view, equivalent to a "taking"
unless principles of nuisance or property law that existed when the
owner acquired the land make the use prohibitable.85 When the
owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good,
that is, to leave his property economically idle, he has suffered a
taking.86
A regulation which denies all economically beneficial or productive
use of land will require compensation under the takings clause.
Where a regulation places limitations on land that fall short of
eliminating all economically beneficial use, a taking nonetheless
may have occurred, depending on a complex of factors including
the regulation's economic effect on the landowner, the extent to
which the regulation interferes with reasonable investment-backed
expectations and the character of government action. These
inquiries are informed by the purpose of the takings clause which
is to prevent the government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be
borne by the public as a whole.87
A restriction on use of property may also constitute a "taking" if not
reasonably necessary to the effectuation of a substantial public
purpose or if it has an unduly harsh impact on the distinct
investment-backed expectations of the owner.88
The Ordinance gives the owners and operators of the "prohibited"
establishments three (3) months from its approval within which to
"wind up business operations or to transfer to any place outside of
the Ermita-Malate area or convert said businesses to other kinds
of business allowable within the area." The directive to "wind up
business operations" amounts to a closure of the establishment, a
permanent deprivation of property, and is practically
confiscatory. Unless the owner converts his establishment to
accommodate an "allowed" business, the structure which housed
the previous business will be left empty and gathering dust.
Suppose he transfers it to another area, he will likewise leave the
entire establishment idle. Consideration must be given to the
substantial amount of money invested to build the edifices which
the owner reasonably expects to be returned within a period of
time. It is apparent that the Ordinance leaves no reasonable
economically viable use of property in a manner that interferes
with reasonable expectations for use.
The second and third options to transfer to any place outside of
the Ermita-Malate area or to convert into allowed businessesare
confiscatory as well. The penalty of permanent closure in cases of
subsequent violations found in Section 4 of the Ordinance is also
equivalent to a "taking" of private property.
The second option instructs the owners to abandon their property
and build another one outside the Ermita-Malate area. In every
sense, it qualifies as a taking without just compensation with an
additional burden imposed on the owner to build another
establishment solely from his coffers. The proffered solution does
not put an end to the "problem," it merely relocates it. Not only is
this impractical, it is unreasonable, onerous and oppressive. The
conversion into allowed enterprises is just as ridiculous. How may
the respondent convert a motel into a restaurant or a coffee shop,
art gallery or music lounge without essentially destroying its
property? This is a taking of private property without due process
of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that
should be compensated by the government. The burden on the
owner to convert or transfer his business, otherwise it will be
closed permanently after a subsequent violation should be borne
by the public as this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a
zoning ordinance. A zoning ordinance, although a valid exercise of
police power, which limits a "wholesome" property to a use which
can not reasonably be made of it constitutes the taking of such
property without just compensation. Private property which is not
noxious nor intended for noxious purposes may not, by zoning, be
destroyed without compensation. Such principle finds no support
in the principles of justice as we know them. The police powers of
local government units which have always received broad and
liberal interpretation cannot be stretched to cover this particular
taking.
Distinction should be made between destruction from necessity
and eminent domain. It needs restating that the property taken in
the exercise of police power is destroyed because it is noxious or
intended for a noxious purpose while the property taken under the
power of eminent domain is intended for a public use or purpose
and is therefore "wholesome."89 If it be of public benefit that a
"wholesome" property remain unused or relegated to a particular
purpose, then certainly the public should bear the cost of
reasonable compensation for the condemnation of private property
for public use.90
Further, the Ordinance fails to set up any standard to guide or limit
the petitioners' actions. It in no way controls or guides the
discretion vested in them. It provides no definition of the
establishments covered by it and it fails to set forth the conditions
when the establishments come within its ambit of prohibition.
The Ordinance confers upon the mayor arbitrary and unrestricted
power to close down establishments. Ordinances such as this,
which make possible abuses in its execution, depending upon no
conditions or qualifications whatsoever other than the unregulated
arbitrary will of the city authorities as the touchstone by which its
validity is to be tested, are unreasonable and invalid.
The Ordinance should have established a rule by which its
impartial enforcement could be secured.91
Ordinances placing restrictions upon the lawful use of property
must, in order to be valid and constitutional, specify the rules and
conditions to be observed and conduct to avoid; and must not
admit of the exercise, or of an opportunity for the exercise, of
unbridled discretion by the law enforcers in carrying out its
provisions.92
Thus, in Coates v. City of Cincinnati,93 as cited in People v.
Nazario,94 the U.S. Supreme Court struck down an ordinance
that had made it illegal for "three or more persons to assemble on
any sidewalk and there conduct themselves in a manner annoying
to persons passing by." The ordinance was nullified as it imposed
no standard at all "because one may never know in advance what
'annoys some people but does not annoy others.' "
Similarly, the Ordinance does not specify the standards to
ascertain which establishments "tend to disturb the community,"
"annoy the inhabitants," and "adversely affect the social and moral
welfare of the community." The cited case supports the nullification
of the Ordinance for lack of comprehensible standards to guide the
law enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated
establishments without infringing the due process clause. These
lawful establishments may be regulated, but not prevented from
carrying on their business. This is a sweeping exercise of police
power that is a result of a lack of imagination on the part of the City
Council and which amounts to an interference into personal and
private rights which the Court will not countenance. In this regard,
we take a resolute stand to uphold the constitutional guarantee of
the right to liberty and property.
Worthy of note is an example derived from the U.S. of a
reasonable regulation which is a far cry from the ill-
considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a
comprehensive ordinance regulating "sexually oriented
businesses," which are defined to include adult arcades,
bookstores, video stores, cabarets, motels, and theaters as well as
escort agencies, nude model studio and sexual encounter centers.
Among other things, the ordinance required that such businesses
be licensed. A group of motel owners were among the three
groups of businesses that filed separate suits challenging the
ordinance. The motel owners asserted that the city violated the
due process clause by failing to produce adequate support for its
supposition that renting room for fewer than ten (10) hours
resulted in increased crime and other secondary effects. They
likewise argued than the ten (10)-hour limitation on the rental of
motel rooms placed an unconstitutional burden on the right to
freedom of association. Anent the first contention, the U.S.
Supreme Court held that the reasonableness of the legislative
judgment combined with a study which the city considered, was
adequate to support the city's determination that motels permitting
room rentals for fewer than ten (10 ) hours should be included
within the licensing scheme. As regards the second point, the
Court held that limiting motel room rentals to ten (10) hours will
have no discernible effect on personal bonds as those bonds that
are formed from the use of a motel room for fewer than ten (10)
hours are not those that have played a critical role in the culture
and traditions of the nation by cultivating and transmitting shared
ideals and beliefs.
The ordinance challenged in the above-cited case merely
regulated the targeted businesses. It imposed reasonable
restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association,
Inc. v. City Mayor of Manila,96 it needs pointing out, is also different
from this case in that what was involved therein was a measure
which regulated the mode in which motels may conduct business
in order to put an end to practices which could encourage vice and
immorality. Necessarily, there was no valid objection on due
process or equal protection grounds as the ordinance did not
prohibit motels. The Ordinance in this case however is not a
regulatory measure but is an exercise of an assumed power to
prohibit.97
The foregoing premises show that the Ordinance is an
unwarranted and unlawful curtailment of property and personal
rights of citizens. For being unreasonable and an undue restraint
of trade, it cannot, even under the guise of exercising police
power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and
responsibilities imposed. Similar subjects, in other words, should
not be treated differently, so as to give undue favor to some and
unjustly discriminate against others.98 The guarantee means that no
person or class of persons shall be denied the same protection of
laws which is enjoyed by other persons or other classes in like
circumstances.99 The "equal protection of the laws is a pledge of
the protection of equal laws."100 It limits governmental
discrimination. The equal protection clause extends to artificial
persons but only insofar as their property is concerned.101
The Court has explained the scope of the equal protection clause
in this wise:
… What does it signify? To quote from J.M. Tuason & Co.
v. Land Tenure Administration: "The ideal situation is for
the law's benefits to be available to all, that none be placed
outside the sphere of its coverage. Only thus could chance
and favor be excluded and the affairs of men governed by
that serene and impartial uniformity, which is of the very
essence of the idea of law." There is recognition, however,
in the opinion that what in fact exists "cannot approximate
the ideal. Nor is the law susceptible to the reproach that it
does not take into account the realities of the situation. The
constitutional guarantee then is not to be given a meaning
that disregards what is, what does in fact exist. To assure
that the general welfare be promoted, which is the end of
law, a regulatory measure may cut into the rights to liberty
and property. Those adversely affected may under such
circumstances invoke the equal protection clause only if
they can show that the governmental act assailed, far from
being inspired by the attainment of the common weal was
prompted by the spirit of hostility, or at the very least,
discrimination that finds no support in reason."
Classification is thus not ruled out, it being sufficient to
quote from the Tuason decision anew "that the laws
operate equally and uniformly on all persons under similar
circumstances or that all persons must be treated in the
same manner, the conditions not being different, both in
the privileges conferred and the liabilities imposed.
Favoritism and undue preference cannot be allowed. For
the principle is that equal protection and security shall be
given to every person under circumstances which, if not
identical, are analogous. If law be looked upon in terms of
burden or charges, those that fall within a class should be
treated in the same fashion, whatever restrictions cast on
some in the group equally binding on the rest.102
Legislative bodies are allowed to classify the subjects of
legislation. If the classification is reasonable, the law may operate
only on some and not all of the people without violating the equal
protection clause.103 The classification must, as an indispensable
requisite, not be arbitrary. To be valid, it must conform to the
following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.104
In the Court's view, there are no substantial distinctions between
motels, inns, pension houses, hotels, lodging houses or other
similar establishments. By definition, all are commercial
establishments providing lodging and usually meals and other
services for the public. No reason exists for prohibiting motels and
inns but not pension houses, hotels, lodging houses or other
similar establishments. The classification in the instant case is
invalid as similar subjects are not similarly treated, both as to
rights conferred and obligations imposed. It is arbitrary as it does
not rest on substantial distinctions bearing a just and fair relation
to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the
business and operation of motels in the Ermita-Malate area but not
outside of this area. A noxious establishment does not become
any less noxious if located outside the area.
The standard "where women are used as tools for entertainment"
is also discriminatory as prostitutionone of the hinted ills
the Ordinance aims to banishis not a profession exclusive to
women. Both men and women have an equal propensity to
engage in prostitution. It is not any less grave a sin when men
engage in it. And why would the assumption that there is an
ongoing immoral activity apply only when women are employed
and be inapposite when men are in harness? This discrimination
based on gender violates equal protection as it is not substantially
related to important government objectives.105 Thus, the
discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to
pass the test of consistency with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely
empowers local government units to regulate, and not prohibit, the
establishments enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the
establishment, operation, and maintenance of motels, hotels and
other similar establishments is found in Section 458 (a) 4 (iv),
which provides that:
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this
Code and in the proper exercise of the corporate powers of
the city as provided for under Section 22 of this Code, and
shall:
. . .
(4) Regulate activities relative to the use of land, buildings
and structures within the city in order to promote the
general welfare and for said purpose shall:
. . .
(iv) Regulate the establishment, operation and
maintenance of cafes, restaurants, beerhouses, hotels,
motels, inns, pension houses, lodging houses, and other
similar establishments, including tourist guides and
transports . . . .
While its power to regulate the establishment, operation and
maintenance of any entertainment or amusement facilities, and to
prohibit certain forms of amusement or entertainment is provided
under Section 458 (a) 4 (vii) of the Code, which reads as follows:
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this
Code and in the proper exercise of the corporate powers of
the city as provided for under Section 22 of this Code, and
shall:
. . .
(4) Regulate activities relative to the use of land, buildings
and structures within the city in order to promote the
general welfare and for said purpose shall:
. . .
 (vii) Regulate the establishment, operation, and
maintenance of any entertainment or amusement
facilities, including theatrical performances,
circuses, billiard pools, public dancing schools,
public dance halls, sauna baths, massage parlors,
and other places for entertainment or amusement;
regulate such other events or activities for
amusement or entertainment, particularly those
which tend to disturb the community or annoy the
inhabitants, or require the suspension or
suppression of the same; or, prohibit certain forms
of amusement or entertainment in order to protect
the social and moral welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels,
motels, inns, pension houses, lodging houses, and other similar
establishments, the only power of the City Council to legislate
relative thereto is to regulate them to promote the general welfare.
The Code still withholds from cities the power to suppress and
prohibit altogether the establishment, operation and maintenance
of such establishments. It is well to recall the rulings of the Court
in Kwong Sing v. City of Manila106 that:
The word "regulate," as used in subsection (l), section
2444 of the Administrative Code, means and includes the
power to control, to govern, and to restrain; but "regulate"
should not be construed as synonymous with "suppress"
or "prohibit." Consequently, under the power to regulate
laundries, the municipal authorities could make proper
police regulations as to the mode in which the employment
or business shall be exercised.107
And in People v. Esguerra,108 wherein the Court nullified an
ordinance of the Municipality of Tacloban which prohibited the
selling, giving and dispensing of liquor ratiocinating that the
municipality is empowered only to regulate the same and not
prohibit. The Court therein declared that:
(A)s a general rule when a municipal corporation is
specifically given authority or power to regulate or to
license and regulate the liquor traffic, power to prohibit is
impliedly withheld.109
These doctrines still hold contrary to petitioners' assertion110 that
they were modified by the Code vesting upon City Councils
prohibitory powers.
Similarly, the City Council exercises regulatory powers over public
dancing schools, public dance halls, sauna baths, massage
parlors, and other places for entertainment or amusement as
found in the first clause of Section 458 (a) 4 (vii). Its powers to
regulate, suppress and suspend "such other events or activities for
amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants" and to "prohibit
certain forms of amusement or entertainment in order to protect
the social and moral welfare of the community" are stated in the
second and third clauses, respectively of the same Section. The
several powers of the City Council as provided in Section 458 (a) 4
(vii) of the Code, it is pertinent to emphasize, are separated by
semi-colons (;), the use of which indicates that the clauses in
which these powers are set forth are independent of each other
albeit closely related to justify being put together in a single
enumeration or paragraph.111 These powers, therefore, should not
be confused, commingled or consolidated as to create a
conglomerated and unified power of regulation, suppression and
prohibition.112
The Congress unequivocably specified the establishments and
forms of amusement or entertainment subject to regulation among
which are beerhouses, hotels, motels, inns, pension houses,
lodging houses, and other similar establishments (Section 458 (a)
4 (iv)), public dancing schools, public dance halls, sauna baths,
massage parlors, and other places for entertainment or
amusement (Section 458 (a) 4 (vii)). This enumeration therefore
cannot be included as among "other events or activities for
amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants" or "certain forms
of amusement or entertainment" which the City Council may
suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are
expressly granted to it and those which are necessarily implied or
incidental to the exercise thereof. By reason of its limited powers
and the nature thereof, said powers are to be construed strictissimi
juris and any doubt or ambiguity arising out of the terms used in
granting said powers must be construed against the City
Council.113 Moreover, it is a general rule in statutory construction
that the express mention of one person, thing, or consequence is
tantamount to an express exclusion of all others. Expressio unius
est exclusio alterium. This maxim is based upon the rules of logic
and the natural workings of human mind. It is particularly
applicable in the construction of such statutes as create new rights
or remedies, impose penalties or punishments, or otherwise come
under the rule of strict construction.114
The argument that the City Council is empowered to enact
the Ordinance by virtue of the general welfare clause of the Code
and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is
likewise without merit. On the first point, the ruling of the Court
in People v. Esguerra,115 is instructive. It held that:
The powers conferred upon a municipal council in the
general welfare clause, or section 2238 of the Revised
Administrative Code, refers to matters not covered by the
other provisions of the same Code, and therefore it can not
be applied to intoxicating liquors, for the power to regulate
the selling, giving away and dispensing thereof is granted
specifically by section 2242 (g) to municipal councils. To
hold that, under the general power granted by section
2238, a municipal council may enact the ordinance in
question, notwithstanding the provision of section 2242 (g),
would be to make the latter superfluous and nugatory,
because the power to prohibit, includes the power to
regulate, the selling, giving away and dispensing of
intoxicating liquors.
On the second point, it suffices to say that the Code being a later
expression of the legislative will must necessarily prevail and
override the earlier law, the Revised Charter of Manila. Legis
posteriores priores contrarias abrogant, or later statute repeals
prior ones which are repugnant thereto. As between two laws on
the same subject matter, which are irreconcilably inconsistent, that
which is passed later prevails, since it is the latest expression of
legislative will.116 If there is an inconsistency or repugnance
between two statutes, both relating to the same subject matter,
which cannot be removed by any fair and reasonable method of
interpretation, it is the latest expression of the legislative will which
must prevail and override the earlier.117
Implied repeals are those which take place when a subsequently
enacted law contains provisions contrary to those of an existing
law but no provisions expressly repealing them. Such repeals
have been divided into two general classes: those which occur
where an act is so inconsistent or irreconcilable with an existing
prior act that only one of the two can remain in force and those
which occur when an act covers the whole subject of an earlier act
and is intended to be a substitute therefor. The validity of such a
repeal is sustained on the ground that the latest expression of the
legislative will should prevail.118
In addition, Section 534(f) of the Code states that "All general and
special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts
thereof which are inconsistent with any of the provisions of this
Code are hereby repealed or modified accordingly." Thus,
submitting to petitioners' interpretation that the Revised Charter of
Manila empowers the City Council to prohibit motels, that portion
of the Charter stating such must be considered repealed by the
Code as it is at variance with the latter's provisions granting the
City Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under
the general welfare clause authorizing the abatement of nuisances
without judicial proceedings. That tenet applies to a nuisance per
se, or one which affects the immediate safety of persons and
property and may be summarily abated under the undefined law of
necessity. It can not be said that motels are injurious to the rights
of property, health or comfort of the community. It is a legitimate
business. If it be a nuisance per accidens it may be so proven in a
hearing conducted for that purpose. A motel is not per se a
nuisance warranting its summary abatement without judicial
intervention.119
Notably, the City Council was conferred powers to prevent and
prohibit certain activities and establishments in another section of
the Code which is reproduced as follows:
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this
Code and in the proper exercise of the corporate powers of
the city as provided for under Section 22 of this Code, and
shall:
(1) Approve ordinances and pass resolutions necessary for
an efficient and effective city government, and in this
connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress and
impose appropriate penalties for habitual drunkenness in
public places, vagrancy, mendicancy, prostitution,
establishment and maintenance of houses of ill repute,
gambling and other prohibited games of
chance, fraudulent devices and ways to obtain money or
property, drug addiction, maintenance of drug dens, drug
pushing, juvenile delinquency, the printing, distribution or
exhibition of obscene or pornographic materials or
publications, and such other activities inimical to the
welfare and morals of the inhabitants of the city;
. . .
If it were the intention of Congress to confer upon the City Council
the power to prohibit the establishments enumerated in Section 1
of the Ordinance, it would have so declared in uncertain terms by
adding them to the list of the matters it may prohibit under the
above-quoted Section. The Ordinance now vainly attempts to lump
these establishments with houses of ill-repute and expand the City
Council's powers in the second and third clauses of Section 458
(a) 4 (vii) of the Code in an effort to overreach its prohibitory
powers. It is evident that these establishments may only be
regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the
establishments themselves. That these establishments are
recognized legitimate enterprises can be gleaned from another
Section of the Code. Section 131 under the Title on Local
Government Taxation expressly mentioned proprietors or
operators of massage clinics, sauna, Turkish and Swedish baths,
hotels, motels and lodging houses as among the "contractors"
defined in paragraph (h) thereof. The same Section also defined
"amusement" as a "pleasurable diversion and entertainment,"
"synonymous to relaxation, avocation, pastime or fun;" and
"amusement places" to include "theaters, cinemas, concert halls,
circuses and other places of amusement where one seeks
admission to entertain oneself by seeing or viewing the show or
performances." Thus, it can be inferred that the Code considers
these establishments as legitimate enterprises and activities. It is
well to recall the maxim reddendo singula singulis which means
that words in different parts of a statute must be referred to their
appropriate connection, giving to each in its place, its proper force
and effect, and, if possible, rendering none of them useless or
superfluous, even if strict grammatical construction demands
otherwise. Likewise, where words under consideration appear in
different sections or are widely dispersed throughout an act the
same principle applies.120
Not only does the Ordinance contravene the Code, it likewise runs
counter to the provisions of P.D. 499. As correctly argued by
MTDC, the statute had already converted the residential Ermita-
Malate area into a commercial area. The decree allowed the
establishment and operation of all kinds of commercial
establishments except warehouse or open storage depot, dump or
yard, motor repair shop, gasoline service station, light industry with
any machinery or funeral establishment. The rule is that for an
ordinance to be valid and to have force and effect, it must not only
be within the powers of the council to enact but the same must not
be in conflict with or repugnant to the general law.121 As succinctly
illustrated in Solicitor General v. Metropolitan Manila Authority:122
 The requirement that the enactment must not violate we reiterate our support for it. But inspite of its virtuous aims, the
existing law explains itself. Local political subdivisions are enactment of the Ordinance has no statutory or constitutional
able to legislate only by virtue of a valid delegation of authority to stand on. Local legislative bodies, in this case, the City
legislative power from the national legislature (except only Council, cannot prohibit the operation of the enumerated
that the power to create their own sources of revenue and establishments under Section 1 thereof or order their transfer or
to levy taxes is conferred by the Constitution itself). They conversion without infringing the constitutional guarantees of due
are mere agents vested with what is called the power of process and equal protection of laws not even under the guise
subordinate legislation. As delegates of the Congress, the of police power.
local government units cannot contravene but must obey
at all times the will of their principal. In the case before us, WHEREFORE, the Petition is hereby DENIED and the decision of
the enactment in question, which are merely local in origin the Regional Trial Court declaring the Ordinance void is
cannot prevail against the decree, which has the force and AFFIRMED. Costs against petitioners.
effect of a statute.123
SO ORDERED.
Petitioners contend that the Ordinance enjoys the presumption of
validity. While this may be the rule, it has already been held that
although the presumption is always in favor of the validity or
reasonableness of the ordinance, such presumption must
nevertheless be set aside when the invalidity or unreasonableness G.R. No. 199669
appears on the face of the ordinance itself or is established by
proper evidence. The exercise of police power by the local SOUTHERN LUZON DRUG CORPORATION, Petitioner,
government is valid unless it contravenes the fundamental law of vs.
the land, or an act of the legislature, or unless it is against public THE DEPARTMENT OF SOCIAL WELFARE AND
policy or is unreasonable, oppressive, partial, discriminating or in DEVELOPMENT, THE NATIONAL COUNCIL FOR THE
derogation of a common right.124 WELFARE OF DISABLED PERSONS, THE DEPARTMENT OF
FINANCE, and THE BUREAU OF INTERNAL
Conclusion REVENUE, Respondents

All considered, the Ordinance invades fundamental personal and DECISION

property rights and impairs personal privileges. It is constitutionally
infirm. The Ordinance contravenes statutes; it is discriminatory and
unreasonable in its operation; it is not sufficiently detailed and
explicit that abuses may attend the enforcement of its sanctions.
And not to be forgotten, the City Council under the Code had no
power to enact the Ordinance and is therefore ultra vires, null and
void.
Concededly, the challenged Ordinance was enacted with the best
of motives and shares the concern of the public for the cleansing
of the Ermita-Malate area of its social sins. Police power legislation
of such character deserves the full endorsement of the judiciary
REYES, J.:
Before the Court is a Petition for Review on Certiorari1under Rule
45 of the Rules of Court, assailing the Decision2 dated June 17,
2011, and Resolution3 dated November 25, 2011 of the Court of
Appeals (CA) in CA-G.R. SP No. 102486, which dismissed the
petition for prohibition filed by Southern Luzon Drug Corporation
(petitioner) against the Department of1 Social Welfare and
Development (DSWD), the National Council for the Welfare of
Disabled Persons (NCWDP) (now National Council on Disability
Affairs or NCDA), the Department of Finance (DOF) and the
Bureau of: Internal Revenue (collectively, the respondents), which
sought to prohibit the implementation of Section 4(a) of Republic
Act (R.A.) No. 9257, otherwise known as the "Expanded Senior
Citizens Act of 2003" and Section 32 of R.A. No. 9442, which
amends the "Magna Carta for Disabled Persons," particularly the
granting of 20% discount on the purchase of medicines by senior
citizens and persons with disability (PWD),: respectively, and
treating them as tax deduction.
The petitioner is a domestic corporation engaged in the business
of: drugstore operation in the Philippines while the respondents
are government' agencies, office and bureau tasked to monitor
compliance with R.A. Nos. 9257 and 9442, promulgate
implementing rules and regulations for their effective
implementation, as well as prosecute and revoke licenses of
erring1 establishments.
Factual Antecedents
On April 23, 1992, R.A. No. 7432, entitled "An Act to Maximize the
Contribution of Senior Citizens to Nation-Building, Grant Benefits
and Special Privileges and For Other Purposes," was enacted.
Under the said law, a senior citizen, who must be at least 60 years
old and has an annual income of not more than P60,000.00,4 may
avail of the privileges provided in Section 4 thereof, one of which is
20% discount on the purchase of medicines. The said provision
states:
Sec. 4. Privileges for the Senior Citizen. - x x x:
a) the grant of twenty percent (20%) discount from all
establishments relative to utilization of transportation services,
hotels and similar lodging establishment, restaurants and
recreation centers and purchase of medicine anywhere in the
country: Provided, That private establishments may claim the
cost as tax credit[.]
x x x x (Emphasis ours)
To recoup the amount given as discount to qualified senior
citizens, covered establishments can claim an equal amount as tax
credit which can be applied against the income tax due from them.
On February 26, 2004, then President Gloria Macapagal-Arroyo
signed R.A. No. 9257, amending some provisions of R.A. No.
7432. The new law retained the 20% discount on the purchase of
medicines but removed the annual income ceiling thereby
qualifying all senior citizens to the privileges under the law.
Further, R.A. No. 9257 modified the tax treatment of the discount
granted to senior citizens, from tax credit to tax deduction from
gross income, computed based on the net cost of goods sold or
services rendered. The pertinent provision, as amended by R.A.
No. 9257, reads as follows:
SEC. 4. Privileges for the Senior Citizens. - The senior citizens
shall be entitled to the following:
(a) the grant of twenty percent (20%) discount from all
establishments relative to the utilization of services in hotels and
similar lodging establishments, restaurants and recreation centers,
and purchase of medicines in all establishments for the exclusive
use or enjoyment of senior citizens, including funeral and burial
services for the death of senior citizens;
xxxx
The establishment may claim the discounts granted under (a),
(f), (g) and (h) as tax deduction based on the net cost of the
goods sold or services rendered: Provided, That the cost of
the discount shall be allowed as deduction from gross
income for the same taxable year that the discount is
granted. Provided, further, That the total amount of the claimed tax
deduction net of value-added tax if applicable, shall be included in
their gross sales receipts for tax purposes and shall be subject to
proper documentation and to the provisions of the National
Internal Revenue Code, as amended. (Emphasis ours)
On May 28, 2004, the DSWD issued the Implementing Rules and
Regulations (IRR) of R.A. No. 9257. Article 8 of Rule VI of the said
IRR provides:
Article 8. Tax Deduction of Establishments. - The establishment
may claim the discounts granted under Rule V, Section 4 -
Discounts for Establishments; Section 9, Medical and Dental
Services in Private Facilities and Sections 10 and 11 -Air, Sea and
Land Transportation as tax deduction based on the net cost of the
goods sold or services rendered. Provided, That the cost of the
discount shall be allowed as deduction from gross income for
the same taxable year that the discount is granted; Provided,
further, That the total amount of the claimed tax deduction net of
value-added tax if applicable, shall be included in their gross sales
receipts for tax purposes and shall be subject to proper
documentation and to the provisions of the National Internal
Revenue Code, as amended; Provided, finally, that the
implementation of the tax deduction shall be subject to the
Revenue Regulations to be issued by the Bureau of Internal
Revenue (BIR) and approved by the Department of Finance
(DOF). (Emphasis ours)
The change in the tax treatment of the discount given to senior
citizens did not sit well with some drug store owners and
corporations, claiming it affected the profitability of their business.
Thus, on January 13, 2005, I Carlos Superdrug Corporation
(Carlos Superdrug), together with other. corporation and
proprietors operating drugstores in the Philippines, filed a Petition
for Prohibition with Prayer for Temporary Restraining Order (TRO)
I and/or Preliminary Injunction before this Court, entitled Carlos
Superdrug I Corporation v. DSWD,5docketed as G.R. No. 166494,
assailing the constitutionality of Section 4(a) of R.A. No. 9257
primarily on the ground that it amounts to taking of private property
without payment of just compensation. In a Decision dated June
29, 2007, the Court upheld the constitutionality of the assailed
provision, holding that the same is a legitimate exercise of police
power. The relevant portions of the decision read, thus:
The law is a legitimate exercise of police power which, similar to
the power of eminent domain, has general welfare for its object.
Police power is not capable of an exact definition, but has been
purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough
room for an efficient and flexible response to conditions and
circumstances, thus assuring the greatest benefits. Accordingly, it
has been described as "the most essential, insistent and the least
limitable of powers, extending as it does to all the great public
needs." It is "[t]he power vested in the legislature by the
constitution to make, ordain, and establish all manner of
wholesome and reasonable laws, statutes, and ordinances, either
with penalties or without, not repugnant to the constitution, as they
shall judge to be for the good and welfare of the commonwealth,
and of the subjects of the same."
For this reason, when the conditions so demand as determined by
the legislature, property rights must bow to the primacy of police
power because property rights, though sheltered by due process,
must yield to general welfare.
xxxx
Moreover, the right to property has a social dimension. While
Article XIII of the Constitution provides the precept for the
protection of property, various laws and jurisprudence, particularly
on agrarian reform and the regulation of contracts and public
utilities, continuously serve as a reminder that the right to property
can be relinquished upon the command of the State for the
promotion of public good. Undeniably, the success of the senior
citizens program rests largely on the support imparted by
petitioners and the other private establishments concerned. This
being the case, the means employed in invoking the active
participation of the private sector, in order to achieve the purpose
or objective of the law, is reasonably and directly related. Without
sufficient proof that Section 4(a) of RA. No. 9257 is arbitrary, and
that the continued implementation of the same would be
unconscionably detrimental to petitioners, the Court will refrain
from quashing a legislative act.
WHEREFORE, the petition is DISMISSED for lack of
merit.6 (Citations omitted)
On August 1, 2007, Carlos Superdrug filed a motion for
reconsideration of the foregoing decision. Subsequently, the Court
issued Resolution dated August 21, 2007, denying the said motion
with finality. 7
Meanwhile, on March 24, 1992, R.A. No. 7277 pertaining to
the "Magna Carta for Disabled Persons" was enacted, codifying
the rights and privileges of PWDs. Thereafter, on April 30, 2007,
R.A. No. 9442 was enacted, amending R.A. No. 7277. One of the
salient amendments in the law is the insertion of Chapter 8 in Title
2 thereof, which enumerates the other privileges and incentives of
PWDs, including the grant of 20% discount on the purchase of
medicines. Similar to R.A. No. 9257, covered establishments shall
claim the discounts given to PWDs as tax deductions from the
gross income, based on the net cost of goods sold or services
rendered. Section 32 ofR.A. No. 9442 reads:
CHAPTER 8. Other Privileges and Incentives
SEC. 32. Persons with disability shall be entitled to the following:
xxxx
(c) At least twenty percent (20%) discount for the purchase of
medicines in all drugstores for the exclusive use or enjoyment of
persons with disability;
xxxx
The establishments may claim the discounts granted in
subsections (a), (b), (c), (e), (t) and (g) as taxdeductions based
on the net cost of the goods sold or services
rendered: Provided, however, That the cost of the discount shall
be allowed as deduction from gross income for the same taxable
year that the discount is granted: Provided, further, That the total
amount of the claimed tax deduction net of value-added tax if
applicable, shall be included in their gross sales receipts for tax
purposes and shall be subject to proper documentation and to the
provisions of the National Internal Revenue Code (NIRC), as
amended. (Emphasis ours)
Pursuant to the foregoing, the IRR of R.A. No. 9442 was
promulgated by the DSWD, Department of Education, DOF,
Department of Tourism and the Department of Transportation and
Communications.8Sections 5 .1 and 6.1.d thereof provide:
Sec. 5. Definition of Terms. For purposes of these Rules and
Regulations, these terms are defined as follows:
5.1. Persons with Disability are those individuals
defined under Section 4 of RA 7277, "An Act
Providing for the Rehabilitation, Self-Development
and Self-Reliance of Persons with Disability as
amended and their integration into the Mainstream
of Society and for Other Purposes." This is defined
as a person suffering from restriction or different
abilities, as a result of a mental, physical or
sensory impairment, to perform an activity in a
manner or within the range considered normal for
human being. Disability shall mean: (1) a physical
or mental impairment that substantially limits one
or more psychological, physiological or anatomical
function of an individual or activities of such
individual; (2) a record of such an impairment; or
(3) being regarded as having such an impairment.
xxxx
6.1.d Purchase of Medicine - At least twenty
percent (20%) discount on the purchase of
medicine for the exclusive use and enjoyment of
persons with disability. All drug stores, hospital,
pharmacies, clinics and other similar
establishments selling medicines are required to
provide at least twenty percent (20%) discount
subject to the guidelines issued by DOH and
PHILHEALTH.
On February 26, 2008, the petitioner filed a Petition for Prohibition
with Application for TRO and/or Writ of Preliminary Injunction9 with
the CA, seeking to declare as unconstitutional (a) Section 4(a) of
R.A. No. 9257, and (b) Section 32 of R.A. No. 9442 and Section
5.1 of its IRR, insofar as these provisions only allow tax deduction
on the gross income based on the net cost of goods sold or
services rendered as compensation to private establishments for
the 20% discount that they are required to grant to senior citizens
and PWDs. Further, the petitioner prayed that the respondents be
permanently enjoined from implementing the assailed provisions.
Ruling of the CA
On June 17, 2011, the CA dismissed the petition, reiterating the
ruling of the Court in Carlos Superdrug10particularly that Section
4(a) of R.A. No. 9257 was a valid exercise of police power.
Moreover, the CA held that considering that the same question
had been raised by parties similarly situated and was resolved
in Carlos Superdrug, the rule of stare decisis stood as a hindrance
to any further attempt to relitigate the same issue. It further noted
that jurisdictional considerations also compel the dismissal of the
action. It particularly emphasized that it has no original or
appellate jurisdiction to pass upon the constitutionality of the
assailed laws, 11 the same pertaining to the Regional Trial Court
(RTC). Even assuming that it had concurrent jurisdiction with the
RTC, the principle of hierarchy of courts mandates that the case
be commenced and heard by the lower court. 12 The CA further
ruled that the petitioner resorted to the wrong remedy as a petition
for prohibition will not lie to restrain the actions of the respondents
for the simple reason that they do not exercise judicial, quasi-
judicial or ministerial duties relative to the issuance or
implementation of the questioned provisions. Also, the petition was
wanting of the allegations of the specific acts committed by the
respondents that demonstrate the exercise of these powers which
may be properly challenged in a petition for prohibition.13
The petitioner filed its Motion for Reconsideration 14 of the Decision
dated June 17, 2011 of the CA, but the same was denied in a
Resolution 15 dated November 25, 2011.
Unyielding, the petitioner filed the instant petition, raising the
following assignment of errors, to wit:
I
THE CA SERIOUSLY ERRED WHEN IT RULED THAT A
PETITION FOR PROHIBITION FILED WITH THE CA IS AN
IMPROPER REMEDY TO ASSAIL THE CONSTITUTIONALITY
OF THE 20%, SALES DISCOUNT FOR SENIOR CITIZENS AND
PWDs;
II
THE CA SERIOUSLY ERRED WHEN IT HELD THAT THE
SUPREME COURT'S RULING IN CARLOS
SUPERDRUG CONSTITUTES STARE DECISIS;
III
THE CA SERIOUSLY ERRED ON A QUESTION OF
SUBSTANCE WHEN IT RULED THAT THE 20%, SALES
DISCOUNT FOR SENIOR CITIZENS AND PWDs IS A VALID
EXERCISE OF POLICE POWER. ON THE CONTRARY, IT IS AN
INVALID EXERCISE OF THE POWER OF EMINENT DOMAIN
BECAUSE IT FAILS TO PROVIDE JUST COMPENSATION TO
THE PETITIONER AND OTHER SIMILARLY SITUATED
DRUGSTORES;
IV
THE CA SERIOUSLY ERRED ON A QUESTION OF
SUBSTANCE WHEN IT RULED THAT THE 20°/o SALES
DISCOUNT FOR SENIOR CITIZENS AND PWDs DOES NOT
VIOLATE THE PETITIONER'S RIGHT TO EQUAL PROTECTION
OF THE LAW; and
V
THE CA SERIOUSLY ERRED ON A QUESTION OF
SUBSTANCE WHEN IT RULED THAT THE DEFINITIONS OF
DISABILITIES AND PWDs ARE NOT VAGUE AND DO NOT
VIOLATE THE PETITIONER'S RIGHT TO DUE PROCESS OF
LAW.16
Ruling of the Court
Prohibition may be filed to question
the constitutionality of a law
In the assailed decision, the CA noted that the action, although
denominated as one for prohibition, seeks the declaration of the
unconstitutionality of Section 4(a) of R.A. No. 9257 and Section 32
of R.A. No.9442. It held that in such a case, the proper remedy is
not a special civil 1 action but a petition for declaratory relief, which
falls under the exclusive original jurisdiction of the RTC, in the first
instance, and of the Supreme Court, on appeal. 17
The Court clarifies.
Generally, the office of prohibition is to prevent the unlawful and
oppressive exercise of authority and is directed against
proceedings that are done without or in excess of jurisdiction, or
with grave abuse of discretion, there being no appeal or other
plain, speedy, and adequate remedy in the ordinary course of law.
It is the remedy to prevent inferior courts, corporations, boards, or
persons from usurping or exercising a jurisdiction or power with
which they have not been vested by law. 18 This is, however, not
the lone office of an action for prohibition. In Diaz, et al. v. The
Secretary of Finance, et al., 19 prohibition was also recognized as a
proper remedy to prohibit or nullify acts of executive officials that
amount to usurpation of legislative authority. 20 And, in a number of
jurisprudence, prohibition was allowed as a proper action to assail
the constitutionality of a law or prohibit its implementation.
In Social Weather Stations, Inc. v. Commission on
Elections,21therein petitioner filed a petition for prohibition to assail
the constitutionality of Section 5.4 of R.A. No. 9006, or the "Fair
Elections Act," which prohibited the publication of surveys within
15 days before an election for national candidates, and seven
days for local candidates. Included in the petition is a prayer to
prohibit the Commission on Elections from enforcing the said
provision. The Court granted the Petition and struck down the
assailed provision for being unconstitutional. 22
In Social Justice Society (SJS) v. Dangerous Drugs Board, et
al.,23 therein petitioner assailed the constitutionality of paragraphs
(c ), (d), (f) and (g) of Section 36 of R.A. No. 9165, otherwise
known as the "Comprehensive Dangerous Drugs Act of 2002," on
the ground that they constitute undue delegation of legislative
power for granting unbridled discretion to schools and private
employers in determining the manner of drug 'testing of their
employees, and that the law constitutes a violation of the right
against unreasonable searches and seizures. It also sought to
enjoin the Dangerous Drugs Board and the Philippine Drug
Enforcement Agency from enforcing the challenged
provision.24 The Court partially granted the petition by declaring
Section 36(f) and (g) of R.A. No. 9165 unconstitutional, and
permanently enjoined the concerned agencies from implementing
them. 25
In another instance, consolidated petitions for
prohibitions26 questioning the constitutionality of the Priority
Development Assistance Fund were deliberated upon by this
Court which ultimately granted the same.
Clearly, prohibition has been found an appropriate remedy to
challenge the constitutionality of various laws, rules, and
regulations.
There is also no question regarding the jurisdiction of the CA to
hear and decide a petition for prohibition. By express provision of
the law, particularly Section 9(1) of Batas Pambansa Bilang
129,27 the CA was granted "original jurisdiction to issue writs
of mandamus, prohibition, certiorari, habeas corpus, and quo
warranto, and auxiliary writs or I processes, whether or not in aid
of its appellate jurisdiction." This authority· the CA enjoys
concurrently with RTCs and this Court.
In the same manner, the supposed violation of the principle of the
·. hierarchy of courts does not pose any hindrance to the full
deliberation of the issues at hand. It is well to remember that "the
judicial hierarchy of courts is not an iron-clad rule. It generally
applies to cases involving warring factual allegations. For this
reason, litigants are required to [refer] to the trial courts at the first
instance to determine the truth or falsity of these contending
allegations on the basis of the evidence of the parties. Cases
which depend on disputed facts for decision cannot be brought
immediately before appellate courts as they are not triers of facts.
Therefore, a strict application of the rule of hierarchy of courts is
not necessary when the cases brought before the appellate courts
do not involve factual but legal questions."28
Moreover, the principle of hierarchy of courts may be set aside for
special and important reasons, such as when dictated by public
welfare and ' the advancement of public policy, or demanded by
the broader interest of justice.29 Thus, when based on the good
judgment of the court, the urgency and significance of the issues
presented calls for its intervention, it should not hesitate to
exercise its duty to resolve.
The instant petition presents an exception to the principle as it
basically raises a legal question on the constitutionality of the
mandatory discount and the breadth of its rightful beneficiaries.
More importantly, the resolution of the issues will redound to the
benefit of the public as it will put to rest the questions on the
propriety of the granting of discounts to senior citizens and PWDs
amid the fervent insistence of affected establishments that the
measure transgresses their property rights. The Court, therefore,
finds it to the best interest of justice that the instant petition be
resolved.
The instant case is not barred by
stare decisis
The petitioner contends that the CA erred in holding that the ruling
in Carlos Superdrug constitutes as stare decisis or law of the case
which bars the relitigation of the issues that had been resolved
therein and had been raised anew in the instant petition. It argues
that there are substantial differences between Carlos
Superdrug and the circumstances in the instant case which take it
out from the operation of the doctrine of stare decisis. It cites that
in Carlos Superdrug, the Court denied the petition because the
petitioner therein failed to prove the confiscatory effect of the tax
deduction scheme as no proof of actual loss was submitted. It
believes that its submission of financial statements for the years
2006 and 2007 to prove the confiscatory effect of the law is a
material fact that distinguishes the instant case from that of Carlos
Superdrug. 30
The Court agrees that the ruling in Carlos Superdrug does not
constitute stare decisis to the instant case, not because of the
petitioner's submission of financial statements which were wanting
in the first case, but because it had the good sense of including
questions that had not been raised or deliberated in the former
case of Carlos Superdrug, i.e., validity of the 20% discount
granted to PWDs, the supposed vagueness of the provisions of
R.A. No. 9442 and violation of the equal protection clause.
Nonetheless, the Court finds nothing in the instant case that merits
a reversal of the earlier ruling of the Court in Carlos
Superdrug. Contrary to the petitioner's claim, there is a very slim
difference between the issues in Carlos Superdrug and the instant
case with respect to the nature of the senior citizen discount. A
perfunctory reading of the circumstances of the two cases easily
discloses marked similarities in the issues and the arguments
raised by the petitioners in both cases that semantics nor careful
play of words can hardly obscure.
In both cases, it is apparent that what the petitioners are ultimately
questioning is not the grant of the senior citizen discount per
se, but the manner by which they were allowed to recoup the said
discount. In particular, they are protesting the change in the tax
treatment of the senior citizen discount from tax credit to being
merely a deduction from gross income which they claimed to have
significantly reduced their profits.
This question had been settled in Carlos Superdrug, where the
Court ruled that the change in the tax treatment of the discount
was a valid exercise of police power, thus:
Theoretically, the treatment of the discount as a deduction reduces
the net income of the private establishments concerned. The
discounts given would have entered the coffers and formed part of
the gross sales of the private establishments, were it not for R.A.
No. 9257.
xxxx
A tax deduction does not offer full reimbursement of the senior
citizen discount. As such, it would not meet the definition of just
compensation.
Having said that, this raises the question of whether the State, in
promoting the health and welfare of a special group of citizens,
can impose upon private establishments the burden of partly
subsidizing a government program.
The Court believes so.
The Senior Citizens Act was enacted primarily to maximize the
contribution of senior citizens to nation-building, and to grant
benefits and privileges to them for their improvement and well-
being as the State considers them an integral part of our society.
The priority given to senior citizens finds its basis in the
Constitution as set forth in the law itself. Thus, the Act provides:
SEC. 2. [R.A.] No. 7432 is hereby amended to read as follows:
SEC. 1. Declaration of Policies and Objectives.- Pursuant to Article
XV, Section 4 of the Constitution, it is the duty of the family to take
care of its elderly members while the State may design programs
of social security for them. In addition to this, Section 10 in the
Declaration of Principles and State Policies provides: "The State
shall provide social justice in all phases of national development."
Further, Article XIII, Section 11, provides: "The State shall adopt
an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other
social services available to all the people at affordable cost. There
shall be priority for the needs of the underprivileged sick, elderly,
disabled, women and children." Consonant with these
constitutional principles the following are the declared policies of
this Act:
xxxx
(f) To recognize the important role of the private sector in the
improvement of the welfare of senior citizens and to actively
seek their partnership.
To implement the above policy, the law grants a twenty percent
discount to senior citizens for medical and dental services, and
diagnostic and laboratory fees; admission fees charged by
theaters, concert halls, circuses, carnivals, and other similar
places of culture, leisure and amusement; fares for domestic land,
air and sea travel; utilization of services in hotels and similar
lodging establishments, restaurants and recreation centers; and
purchases of medicines for the exclusive use or enjoyment of
senior citizens. As a form of reimbursement, the law provides that
business establishments extending the twenty percent discount to
senior citizens may claim the discount as a tax deduction.
The law is a legitimate exercise of police power which, similar to
the power of eminent domain, has general welfare for its object.
Police power is not capable of an exact definition, but has been
purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough
room for an efficient and flexible response to conditions and
circumstances, thus assuring the greatest benefits. Accordingly, it
has been described as "the most essential, insistent and the least
limitable of powers, extending as it does to all the great public
needs." It is "[t]he power vested in the legislature by the
constitution to make, ordain, and establish all manner of
wholesome and reasonable laws, statutes, and ordinances, either
with penalties or without, not repugnant to the constitution, as they
shall judge to be for the good and welfare of the commonwealth,
and of the subjects of the same."
For this reason, when the conditions so demand as determined by
the legislature, property rights must bow to the primacy of police
power because proper rights, though sheltered by due process,
must yield to general welfare. 31 (Citations omitted and emphasis in
the original)
Verily, it is the bounden duty of the State to care for the elderly as
they reach the point in their lives when the vigor of their youth has
diminished and resources have become scarce. Not much
because of choice, they become needing of support from the
society for whom they presumably spent their productive days and
for whose betterment they' exhausted their energy, know-how and
experience to make our days better to live.
In the same way, providing aid for the disabled persons is an
equally important State responsibility. Thus, the State is obliged to
give full support to the improvement of the total well-being of
disabled persons and their integration into the mainstream of
society. 32This entails the creation of opportunities for them and
according them privileges if only to balance the playing field which
had been unduly tilted against them because of their limitations.
The duty to care for the elderly and the disabled lies not only upon
the State, but also on the community and even private entities. As
to the State, the duty emanates from its role as parens
patriae which holds it under obligation to provide protection and
look after the welfare of its people especially those who cannot
tend to themselves. Parens patriae means parent of his or her
country, and refers to the State in its role as "sovereign", or the
State in its capacity as a provider of protection to those unable to
care for themselves. 33 In fulfilling this duty, the State may resort to
the exercise of its inherent powers: police power, eminent domain
and power of taxation.
In Gerochi v. Department of Energy,34the Court passed upon one
of the inherent powers of the state, the police power, where it
emphasized, thus:
[P]olice power is the power of the state to promote public welfare
by restraining and regulating the use of liberty and property. It is
the most pervasive, the least limitable, and the most demanding of
the three fundamental powers of the State. The justification is
found in the Latin maxim salus populi est suprema lex (the welfare
of the people is the supreme law) and sic utere tuo ut alienum non
laedas (so use your property as not to injure the property of
others). As an inherent attribute of sovereignty which virtually
extends to all public needs, police power grants a wide panoply of
instruments through which the State, as parens patriae, gives
effect to a host of its regulatory powers. We have held that the
power to "regulate" means the power to protect, foster, promote,
preserve, and control, with due regard for the interests, first and
foremost, of the public, then of the utility and of its
patrons. 35 (Citations omitted)
It is in the exercise of its police power that the Congress enacted
R.A. Nos. 9257 and 9442, the laws mandating a 20% discount on
purchases of medicines made by senior citizens and PWDs. It is
also in further exercise of this power that the legislature opted that
the said discount be claimed as tax deduction, rather than tax
credit, by covered establishments.
The petitioner, however, claims that the change in the tax
treatment of the discount is illegal as it constitutes taking without
just compensation. It even submitted financial statements for the
years 2006 and 2007 to support its claim of declining profits when
the change in the policy was implemented.
The Court is not swayed.
To begin with, the issue of just compensation finds no relevance in
the instant case as it had already been made clear in Carlos
Superdrug that the power being exercised by the State in the
imposition of senior citizen discount was its police power. Unlike in
the exercise of the power of eminent domain, just compensation is
not required in wielding police power. This is precisely because
there is no taking involved, but only an imposition of burden.
In Manila Memorial Park, Inc., et al. v. Secretary of the DSWD, et
al., 36 the Court ruled that by examining the nature and the effects
of R.A. No. 9257, it becomes apparent that the challenged
governmental act was an exercise of police power. It was held,
thus:
[W]e now look at the nature and effects of the 20% discount to
determine if it constitutes an exercise of police power or eminent
domain.
The 20% discount is intended to improve the welfare of senior
citizens who, at their age, are less likely to be gainfully employed,
more prone to illnesses and other disabilities, and, thus, in need of
subsidy in purchasing basic commodities. It may not be amiss to
mention also that the discount serves to honor senior citizens who
presumably spent the productive years of their lives on
contributing to the development and progress of the nation. This
distinct cultural Filipino practice of honoring the elderly is an
integral part of this law.
As to its nature and effects, the 20% discount is a regulation
affecting the ability of private establishments to price their products
and services relative to a special class of individuals, senior
citizens, for which the Constitution affords preferential concern. In
turn, this affects the amount of profits or income/gross sales that a
private establishment can derive from senior citizens. In other
words, the subject regulation affects the pricing, and, hence, the
profitability of a private establishment. However, it does not purport
to appropriate or burden specific properties, used in the operation
or conduct of the business of private establishments, for the use or
benefit of the public, or senior citizens for that matter, but merely
regulates the pricing of goods and services relative to, and the
amount of profits or income/gross sales that such private
establishments may derive from, senior citizens.
The subject regulation may be said to be similar to, but with
substantial distinctions from, price control or rate of 'return on
investment control laws which are traditionally regarded as police
power measures. x x x.37 (Citations omitted)
In the exercise of police power, "property rights of private
individuals are subjected to restraints and burdens in order to
secure the general comfort, health, and prosperity of the
State."38 Even then, the State's claim of police power cannot be
arbitrary or unreasonable. After all, the overriding purpose of the
exercise of the power is to promote general welfare, public health
and safety, among others. It is a measure, which by sheer
necessity, the State exercises, even to the point of interfering with
personal liberties or property rights in order to advance common
good. To warrant such interference, two requisites must concur:
(a) the interests of the public generally, as distinguished from
those of a particular class, require the interference of the! State;
and (b) the means employed are reasonably necessary to the:
attainment of the object sought to be accomplished and not unduly
oppressive upon individuals. In other words, the proper exercise of
the police power requires the concurrence of a lawful subject and
a lawful method.39
The subjects of R.A. Nos. 9257 and 9442, i.e., senior citizens and
PWDs, are individuals whose well-being is a recognized public
duty. As a public duty, the responsibility for their care devolves
upon the concerted efforts of the State, the family and the
community. In Article XIII, Section 1 of the Constitution, the State
is mandated to 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 power1 for the common good. The more apparent
manifestation of these social inequities is the unequal distribution
or access to healthcare services. To: abet in alleviating this
concern, the State is committed to adopt an integrated! and
comprehensive approach to health development which shall
endeavor to make essential goods, health and other social
services available to all the people at affordable cost, with priority
for the needs of the underprivileged sick, elderly, disabled,
women, and children.40
In the same manner, the family and the community have equally
significant duties to perform in reducing social inequality. The
family as the basic social institution has the foremost duty to care
for its elderly members.41 On the other hand, the community, which
include the private sector, is recognized as an active partner of the
State in pursuing greater causes. The private sector, being
recipients of the privilege to engage business in our land, utilize
our goods as well as the services of our people for proprietary
purposes, it is only fitting to expect their support in measures that
contribute to common good. Moreover, their right to own, establish
and operate economic enterprises is always subject to the duty of
the State to promote distributive justice and to intervene when the
common good so demands.42
The Court also entertains no doubt on the legality of the method
taken by the legislature to implement the declared policies of the
subject laws, that is, to impose discounts on the medical services
and purchases of senior citizens and PWDs and to treat the said
discounts as tax deduction rather than tax credit. The measure is
fair and reasonable and no credible proof was presented to prove
the claim that it was confiscatory. To be considered confiscatory,
there must be taking of property without just compensation.
Illuminating on this point is the discussion of the Court on the
concept of taking in City of Manila v. Hon. Laguio, Jr.,43 viz.:
There are two different types of taking that can be identified. A
"possessory" taking occurs when the government confiscates or
physically occupies property. A "regulatory" taking occurs when
the government's regulation leaves no reasonable economically
viable use of the property.
xxxx
No formula or rule can be devised to answer the questions of what
is too far and when regulation becomes a taking.
In Mahon, Justice Holmes recognized that it was "a question of
degree and therefore cannot be disposed of by general
propositions." On many other occasions as well, the U.S. Supreme
Court has said that the issue of when regulation constitutes a
taking is a matter of considering the facts in each case. x x x.
What is crucial in judicial consideration of regulatory takings is that
government regulation is a taking if it leaves no reasonable
economically viable use of property in a manner that interferes
with reasonable expectations for use. A regulation that
permanently denies all economically beneficial or productive use
of land is, from the owner's point of view, equivalent to a "taking"
unless principles of nuisance or property law that existed when the
owner acquired the land make the use prohibitable. When the
owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good,
that is, to leave his property economically idle, he has suffered a
taking.
xxxx
A restriction on use of property may also constitute a "taking" if not
reasonably necessary to the effectuation of a substantial public
purpose or if it has an unduly harsh impact on the distinct
investment-backed expectations of the owner.44 (Citations omitted)
The petitioner herein attempts to prove its claim that the pertinent
provisions of R.A. Nos. 9257 and 9442 amount to taking by
presenting financial statements purportedly showing financial
losses incurred by them due to the adoption of the tax deduction
scheme.
For the petitioner's clarification, the presentation of the financial
statement is not of compelling significance in justifying its claim for
just compensation. What is imperative is for it to establish that
there was taking in the constitutional sense or that, in the
imposition of the mandatory discount, the power exercised by the
state was eminent domain.
According to Republic of the Philippines v. Vda. de Castellvi,45five
circumstances must be present in order to qualify "taking" as an
exercise of eminent domain. First, the expropriator must enter a
private property. Second, the entrance into private property must
be for more than a momentary period. Third, the entry into the
property should be under warrant or color of legal
authority. Fourth, the property must be devoted to a public use or
otherwise informally appropriated or injuriously affected. Fifth, the
utilization of the property for public use must be in such a way as
to oust the owner and deprive him of all beneficial enjoyment of
the property. 46
The first requirement speaks of entry into a private property which
clearly does not obtain in this case. There is no private property
that is; invaded or appropriated by the State. As it is, the petitioner
precipitately deemed future profits as private property and then
proceeded to argue that the State took it away without full
compensation. This seemed preposterous considering that the
subject of what the petitioner supposed as taking was not even
earned profits but merely an expectation of profits, which may not
even occur. For obvious reasons, there cannot be taking of a
contingency or of a mere possibility because it lacks physical
existence that is necessary before there could be any taking.
Further, it is impossible to quantify the compensation for the loss
of supposed profits before it is earned.
The supposed taking also lacked the characteristics of
permanence 47 and consistency. The
1âwphi1 presence of these
characteristics is significant because they can establish that the
effect of the questioned provisions is the same on all
establishments and those losses are indeed its unavoidable
consequence. But apparently these indications are wanting in this
case. The reason is that the impact on the establishments varies
depending on their response to the changes brought about by the
subject provisions. To be clear, establishments, are not prevented
from adjusting their prices to accommodate the effects of the
granting of the discount and retain their profitability while being
fully compliant to the laws. It follows that losses are not inevitable
because establishments are free to take business measures to
accommodate the contingency. Lacking in permanence and
consistency, there can be no taking in the constitutional sense.
There cannot be taking in one establishment and none in another,
such that the former can claim compensation but the other may
not. Simply told, there is no taking to justify compensation; there is
only poor business decision to blame.
There is also no ousting of the owner or deprivation of ownership.
Establishments are neither divested of ownership of any of their
properties nor is anything forcibly taken from them. They remain
the owner of their goods and their profit or loss still depends on the
performance of their sales.
Apart from the foregoing, covered establishments are also
provided with a mechanism to recoup the amount of discounts
they grant the senior citizens and PWDs. It is provided in Section
4(a) of R.A. No. 9257 and Section 32 of R.A. No. 9442 that
establishments may claim the discounts as "tax deduction based
on the net cost of the goods sold or services rendered." Basically,
whatever amount was given as discount, covered establishments
may claim an equal amount as an expense or tax deduction. The
trouble is that the petitioner, in protesting the change in the tax
treatment of the discounts, apparently seeks tax incentive and not
merely a return of the amount given as discounts. It premised its
interpretation of financial losses in terms of the effect of the
change in the tax treatment of the discount on its tax liability;
hence, the claim that the measure was confiscatory. However, as
mentioned earlier in the discussion, loss of profits is not the
inevitable result of the change in tax treatment of the discounts; it
is more appropriately a consequence of poor business decision.
It bears emphasizing that the law does not place a cap on the
amount of mark up that covered establishments may impose on
their items. This rests on the discretion of the establishment which,
of course, is expected to put in the price of the overhead costs,
expectation of profits and other considerations into the selling
price of an item. In a simple illustration, here is Drug A, with
acquisition cost of ₱8.00, and selling price of ₱10.00. Then comes
a law that imposes 20% on senior citizens and PWDs, which
affected Establishments 1, 2 and 3. Let us suppose that the
approximate number of patrons who purchases Drug A is 100, half
of which are senior citizens and PWDs. Before the passage of the
law, all of the establishments are earning the same amount from
profit from the sale of Drug A, viz.:
Before the passage of the law:
Drug A
Acquisition cost ₱8.00
Selling price ₱10.00
Number of patrons 100
Sales:
100 x ₱10.00 = ₱1,000.00
Profit: ₱200
After the passage of the law, the three establishments reacted
differently. Establishment 1 was passive and maintained the price
of Drug A at ₱8.00 which understandably resulted in diminution of
profits.
Establishment 1
 negligible effect on its profit, but Establishment 3 took it as a social
Drug A
duty: to share in the cause being promoted by the government
Acquisition cost ₱8.00 while still maintaining profitability.
Selling price ;₱10.00
Establishment 3
Number of patrons 100
Senior Citizens/PWD 50
Drug A
Sales
Acquisition cost ₱8.00
100 x ₱10.00 = ₱1,000.00 Selling price ₱11.20
Deduction: ₱100.00 Number of patrons 100
Senior Citizens/PWD 50
Profit: ₱100.00
Sales
On the other hand, Establishment 2, mindful that the new law will 100 x ₱10.00 = ₱1,000.00
affect the profitability of the business, made a calculated decision
by increasing the mark up of Drug A to ₱3.20, instead of only Deduction: ₱110.00
₱2.00. This brought a positive result to the earnings of the
company. Profit: ₱190.00

Establishment 2 The foregoing demonstrates that it is not the law per se which
occasioned the losses in the covered establishments but bad
Drug A business I judgment. One of the main considerations in making
business decisions is the law because its effect is widespread and
Acquisition cost ;₱8.00 inevitable. Literally, anything can be a subject of legislation. It is
Selling price ₱11.20 therefore incumbent upon business managers to cover this
contingency and consider it in making business strategies. As
Number of patron 100 shown in the illustration, the better responses were exemplified by
Senior Citizens/PWDs 50 Establishments 2 and 3 which promptly put in the additional costs
brought about by the law into the price of Drug A. In doing so, they
Sales were able to maintain the profitability of the business, even
100 x ₱10.00 = ₱1,000.00 earning some more, while at the same time being fully compliant
with the law. This is not to mention that the illustration is even too
Deduction: ₱112.00 simplistic and not' the most ideal since it dealt only with a single
drug being purchased by both regular patrons and senior citizens
Profit: ₱208.00 and PWDs. It did not consider the accumulated profits from the
other medical and non-medical products being sold by the
establishments which are expected to further curb the effect of the
For its part, Establishment 3 raised the mark up on Drug A to only
granting of the discounts in the business.
₱3.00 just to even out the effect of the law. This measure left a
It is therefore unthinkable how the petitioner could have suffered
losses due to the mandated discounts in R.A. Nos. 9257 and
9442, when a fractional increase in the prices of items could bring
the business standing at a balance even with the introduction of
the subject laws. A level adjustment in the pricing of items is a
reasonable business measure to take in order to adapt to the
contingency. This could even make establishments earn more, as
shown in the illustration, since every fractional increase in the price
of covered items translates to a wider cushion to taper off the
effect of the granting of discounts and ultimately results to
additional profits gained from the purchases of the same items by
regular patrons who are not entitled to the discount. Clearly, the
effect of the subject laws in the financial standing of covered
companies depends largely on how they respond and forge a
balance between profitability and their sense of social
responsibility. The adaptation is entirely up to them and they are
not powerless to make adjustments to accommodate the subject
legislations.
Still, the petitioner argues that the law is confiscatory in the sense
that the State takes away a portion of its supposed profits which
could have gone into its coffers and utilizes it for public purpose.
The petitioner claims that the action of the State amounts to taking
for which it should be compensated.
To reiterate, the subject provisions only affect the petitioner's right
to profit, and not earned profits. Unfortunately for the petitioner,
the right to profit is not a vested right or an entitlement that has
accrued on the person or entity such that its invasion or
deprivation warrants compensation. Vested rights are "fixed,
unalterable, or irrevocable."48 More extensively, they are depicted
as follows:
Rights which have so completely and definitely accrued to or
settled in a person that they are not subject to be defeated or
cancelled by the act of any other private person, and which it is
right and equitable that the government should recognize and
protect, as being lawful in themselves, and settled according to the
then current rules of law, and of which the individual could not be
deprived arbitrarily without injustice, or of which he could not justly
be deprived otherwise than by the established methods of
procedure and for the public welfare. x x x A right is not 'vested'
unless it is more than a mere expectation based on the anticipated
continuance of present laws; it must be an established interest in
property, not open to doubt. x x x To be vested in its accurate legal
sense, a right must be complete and consummated, and one of
which the person to whom it belongs cannot be divested without
his consent.x x x.49 (Emphasis ours)
Right to profits does not give the petitioner the cause of action to
ask for just compensation, it being only an inchoate right or one
that has not fully developed50 and therefore cannot be claimed as
one's own. An inchoate right is a mere expectation, which may or
may not come into existence. It is contingent as it only comes "into
existence on an event or condition which may not happen or be
performed until some other event may prevent their
vesting."51 Certainly, the petitioner cannot claim confiscation or
taking of something that has yet to exist. It cannot claim
deprivation of profit before the consummation of a sale and the
purchase by a senior citizen or PWD.
Right to profit is not an accrued right; it is not fixed, absolute nor
indefeasible. It does not come into being until the occurrence or
realization of a condition precedent. It is a mere "contingency that
might never eventuate into a right. It stands for a mere possibility
of profit but nothing might ever be payable under it."52
The inchoate nature of the right to profit precludes the possibility of
compensation because it lacks the quality or characteristic which
is necessary before any act of taking or expropriation can be
effected. Moreover, there is no yardstick fitting to quantify a
contingency or to determine compensation for a mere possibility.
Certainly, "taking" presupposes the existence of a subject that has
a quantifiable or determinable value, characteristics which a mere
contingency does not possess.
Anent the question regarding the shift from tax credit to tax
deduction, suffice it is to say that it is within the province of
Congress to do so in the exercise of its legislative power. It has the
authority to choose the subject of legislation, outline the effective
measures to achieve its declared policies and even impose
penalties in case of non-compliance. It has the sole discretion to
decide which policies to pursue and devise means to achieve
them, and courts often do not interfere in this exercise for as long
as it does not transcend constitutional limitations. "In performing
this duty, the legislature has no guide but its judgment and
discretion and the wisdom of experience."53 In Carter v. Carter Coal
Co.,54legislative discretion has been described as follows:
Legislative congressional discretion begins with the choice of
means, and ends with the adoption of methods and details to carry
the delegated powers into effect. x x x [W]hile the powers are
rigidly limited to the enumerations of the Constitution, the means
which may be employed to carry the powers into effect are not
restricted, save that they must be appropriate, plainly adapted to
the end, and not prohibited by, but consistent with, the letter and
spirit of the Constitution. x x x. 55 (Emphasis ours)
Corollary, whether to treat the discount as a tax deduction or tax
credit is a matter addressed to the wisdom of the legislature. After
all, it is within its prerogative to enact laws which it deems
sufficient to address a specific public concern. And, in the process
of legislation, a bill goes through rigorous tests of validity,
necessity and sufficiency in both houses of Congress before
enrolment. It undergoes close scrutiny of the members of
Congress and necessarily had to surpass the arguments hurled
against its passage. Thus, the presumption of validity that goes
with every law as a form of deference to the process it had gone
through and also to the legislature's exercise of discretion. Thus,
in lchong, etc., et al. v. Hernandez) etc., and Sarmiento,56the Court
emphasized, thus:
It must not be overlooked, in the first place, that the legislature,
which is the constitutional repository of police power and exercises
the prerogative of determining the policy of the State, is by force of
circumstances primarily the judge of necessity, adequacy or
reasonableness and wisdom, of any law promulgated in the
exercise of the police power, or of the measures adopted to
implement the public policy or to achieve public interest.x x
x.57 (Emphasis ours)
The legislature may also grant rights and impose additional
burdens: It may also regulate industries, in the exercise of police
power, for the protection of the public. R.A. Nos. 9257 and 9442
are akin to regulatory laws, the issuance of which is within the
ambit of police power. The minimum wage law, zoning ordinances,
price control laws, laws regulating the operation of motels and
hotels, laws limiting the working hours to eight, and the like fall
under this category. 58
Indeed, regulatory laws are within the category of police power
measures from which affected persons or entities cannot claim
exclusion or compensation. For instance, private establishments
cannot protest that the imposition of the minimum wage is
confiscatory since it eats up a considerable chunk of its profits or
that the mandated remuneration is not commensurate for the work
done. The compulsory nature of the provision for minimum wages
underlies the effort of the State; as R.A. No. 672759 expresses it, to
promote productivity-improvement and gain-sharing measures to
ensure a decent standard of living for the workers and their
families; to guarantee the rights of labor to its just share in the
fruits of production; to enhance employment generation in the
countryside through industry dispersal; and to allow business and
industry reasonable returns on investment, expansion and growth,
and as the Constitution expresses it, to affirm labor as a primary
social economic force. 60
Similarly, the imposition of price control on staple goods in R.A.
No. 758161 is likewise a valid exercise of police power and affected
establishments cannot argue that the law was depriving them of
supposed gains. The law seeks to ensure the availability of basic
necessities and prime commodities at reasonable prices at all
times without denying legitimate business a fair return on
investment. It likewise aims to provide effective and sufficient
protection to consumers against hoarding, profiteering and cartels
with respect to the supply, distribution, marketing and pricing of
said goods, especially during periods of calamity, emergency,
widespread illegal price manipulation and other similar situations.62
More relevantly, in Manila Memorial Park, Inc.,63it was ruled that it
is within the bounds of the police power of the state to impose
burden on private entities, even if it may affect their profits, such
as in the imposition of price control measures. There is no
compensable taking but only a recognition of the fact that they are
subject to the regulation of the State and that all personal or
private interests must bow down to the more paramount interest of
the State.
This notwithstanding, the regulatory power of the State does not
authorize the destruction of the business. While a business may
be regulated, such regulation must be within the bounds of
reason, i.e., the regulatory ordinance must be reasonable, and its
provision cannot be oppressive amounting to an arbitrary
interference with the business or calling subject of regulation. A
lawful business or calling may not, under the guise of regulation,
be unreasonably interfered with even by the exercise of police
power. 64 After all, regulation only signifies control or restraint, it
does not mean suppression or absolute prohibition. Thus,
in Philippine Communications Satellite Corporation v. Alcuaz, 65 the
Court emphasized:
The power to regulate is not the power to destroy useful and
harmless enterprises, but is the power to protect, foster, promote,
preserve, and control with due regard for the interest, first and
foremost, of the public, then of the utility and of its patrons. Any
regulation, therefore, which operates as an effective confiscation
of private property or constitutes an arbitrary or unreasonable
infringement of property rights is void, because it is repugnant to
the constitutional guaranties of due process and equal protection
of the laws. 66 (Citation omitted)
Here, the petitioner failed to show that R.A. Nos. 9257 and 9442,
under the guise of regulation, allow undue interference in an
otherwise legitimate business. On the contrary, it was shown that
1avv phi 1
the questioned laws do not meddle in the business or take
anything from it but only regulate its realization of profits.
The subject laws do not violate the
equal protection clause
The petitioner argues that R.A. Nos. 9257 and 9442 are violative
of the equal protection clause in that it failed to distinguish
between those who have the capacity to pay and those who do
not, in granting the 20% discount. R.A. No. 9257, in particular,
removed the income qualification in R.A. No. 7432
of'₱60,000.00 per annum before a senior citizen may be entitled to
the 20o/o discount.
The contention lacks merit.
The petitioner's argument is dismissive of the reasonable
qualification on which the subject laws were based. In City of
Manila v. Hon. Laguio, Jr., 67 the Court emphasized:
Equal protection requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and
responsibilities imposed. Similar subjects, in other words, should
not be treated differently, so as to give undue favor to some and
unjustly discriminate against others. The guarantee means that no
person or class of persons shall be denied the same protection of
laws which is enjoyed by other persons or other classes in like
circumstances.68 (Citations omitted)
"The equal protection clause is not infringed by legislation which
applies only to those persons falling within a specified class. If the
groupings are characterized by substantial distinctions that make
real differences, one class may be treated and regulated
differently from another."69 For a classification to be valid, (1) it
must be based upon substantial distinctions, (2) it must be
germane to the purposes of the law, (3) it must not be limited to
existing conditions only, and (4) it must apply equally to all
members of the same class. 70
To recognize all senior citizens as a group, without distinction as to
income, is a valid classification. The Constitution itself considered
the elderly as a class of their own and deemed it a priority to
address their needs. When the Constitution declared its intention
to prioritize the predicament of the underprivileged sick, elderly,
disabled, women, and children,71 it did not make any reservation as
to income, race, religion or any other personal circumstances. It
was a blanket privilege afforded the group of citizens in the
enumeration in view of the vulnerability of their class.
R.A. No. 9257 is an implementation of the avowed policy of the
Constitution to enact measures that protect and enhance the right
of all the people to human dignity, reduce social, economic, and
political inequalities. 72 Specifically, it caters to the welfare of all
senior citizens. The classification is based on age and therefore
qualifies all who have attained the age of 60. Senior citizens are a
class of their own, who are in need and should be entitled to
government support, and the fact that they may still be earning for
their own sustenance should not disqualify them from the privilege.
It is well to consider that our senior citizens have already reached
the age when work opportunities have dwindled concurrently as
their physical health. They are no longer expected to work, but
1âw phi 1
there are still those who continue to work and contribute what they
can to the country. Thus, to single them out and take them out of
the privileges of the law for continuing to strive and earn income to
fend for themselves is inimical to a welfare state that the
Constitution envisions. It is tantamount to penalizing them for their
persistence. It is commending indolence rather than rewarding
diligence. It encourages them to become wards of the State rather
than productive partners.
Our senior citizens were the laborers, professionals and overseas
contract workers of the past. While some may be well to do or may
have the capacity to support their sustenance, the discretion to
avail of the privileges of the law is up to them. But to instantly tag
them. as undeserving of the privilege would be the height of
ingratitude; it is an outright discrimination.
The same ratiocination may be said of the recognition of PWDs as
a class in R.A. No. 9442 and in granting them discounts. It needs
1âwphi1
no further explanation that PWDs have special needs which, for
most,' last their entire lifetime. They constitute a class of their own,
equally deserving of government support as our elderlies. While
some of them maybe willing to work and earn income for
themselves, their disability deters them from living their full
potential. Thus, the need for assistance from the government to
augment the reduced income or productivity brought about by their
physical or intellectual limitations.
There is also no question that the grant of mandatory discount is
germane to the purpose of R.A. Nos. 9257 and 9442, that is, to
adopt an integrated and comprehensive approach to health
development and make essential goods and other social services
available to all the people at affordable cost, with special priority
given to the elderlies and the disabled, among others. The
privileges granted by the laws ease their concerns and allow them
to live more comfortably.
The subject laws also address a continuing concern of the
government for the welfare of the senior citizens and PWDs. It is
not some random predicament but an actual, continuing and
pressing concern that requires preferential attention. Also, the
laws apply to all senior citizens and PWDs, respectively, without
further distinction or reservation. Without a doubt, all the elements
for a valid classification were met.
The definitions of "disabilities" and
"PWDs" are clear and unequivocal
Undeterred, the petitioner claims that R.A. No. 9442 is ambiguous
particularly in defining the terms "disability" and "PWDs," such that
it lack comprehensible standards that men of common intelligence
must guess at its meaning. It likewise bewails the futility of the
given safeguards to prevent abuse since government officials who
are neither experts nor practitioners of medicine are given the
authority to issue identification cards that authorizes the granting
of the privileges under the law.
The Court disagrees.
Section 4(a) of R.A. No. 7277, the precursor of R.A. No. 94421
defines "disabled persons" as follows:
(a) Disabled persons are those suffering from restriction or
different abilities, as a result of a mental, physical or sensory
impairment, to perform an activity in the manner or within the
range considered normal for a human being[.]
On the other hand, the term "PWDs" is defined in Section 5.1 of
the IRR of R.A. No. 9442 as follows:
5.1. PersonswithDisability are those individuals defined under
Section 4 of [R.A. No.] 7277 [or] An Act Providing for the
Rehabilitation, Self-Development and Self-Reliance of Persons
with Disability as amended and their integration into the
Mainstream of Society and for Other Purposes. This is defined as
a person suffering from restriction or different abilities, as a result
of a mental, physical or sensory impairment, to perform an activity
in a manner or within the range considered normal for human
being. Disability shall mean (1) a physical 1or mental impairment
that substantially limits one or more psychological, physiological or
anatomical function of an individual or activities of such individual;
(2) a record of such an impairment; or (3) being regarded as
having such an impairment.
The foregoing definitions have a striking conformity with the
definition of "PWDs" in Article 1 of the United Nations Convention
on the Rights of Persons with Disabilities which reads:
Persons with disabilities include those who have long-term
physical, mental, intellectual or sensory impairments which in
interaction with various barriers may hinder their full and effective
participation in society on an equal basis with others. (Emphasis
and italics ours)
The seemingly broad definition of the terms was not without good
reasons. It recognizes that "disability is an evolving concept"73 and
appreciates the "diversity of PWDs."74 The terms were given
comprehensive definitions so as to accommodate the various
forms of disabilities, and not confine it to a particular case as this
would effectively exclude other forms of physical, intellectual or
psychological impairments.
Moreover, in Estrada v. Sandiganbayan, 75 it was declared, thus:
A statute is not rendered uncertain and void merely because
general terms are used therein, or because of the employment of
terms without defining them; much less do we have to define every
word we use. Besides, there is no positive constitutional or
statutory command requiring the legislature to define each and
every word in an enactment. Congress is not restricted in the form
of expression of its will, and its inability to so define the words
employed in a statute will not necessarily result in the vagueness
or ambiguity of the law so long as the legislative will is clear, or at
least, can be gathered from the whole act x x x.76 (Citation omitted)
At any rate, the Court gathers no ambiguity in the provisions of
R.A. No. 9442. As regards the petitioner's claim that the law
lacked reasonable standards in determining the persons entitled to
the discount, Section 32 thereof is on point as it identifies who may
avail of the privilege and the manner of its availment. It states:
Sec. 32. x x x
The abovementioned privileges are available only to persons with
disability who are Filipino citizens upon submission of any of the
following as proof of his/her entitlement thereto:
(I) An identification card issued by the city or
municipal mayor or the barangay captain of the
place where the persons with disability resides;
(II) The passport of the persons with disability
concerned; or
(III) Transportation discount fare Identification Card
(ID) issued by the National Council for the Welfare
of Disabled Persons (NCWDP).
It is, however, the petitioner's contention that the foregoing
authorizes government officials who had no medical background
to exercise discretion in issuing identification cards to those
claiming to be PWDs. It argues that the provision lends to the
indiscriminate availment of the privileges even by those who are
not qualified.
The petitioner's apprehension demonstrates a superficial
understanding of the law and its implementing rules. To be clear,
 the issuance of identification cards to PWDs does not depend on
the authority of the city or municipal mayor, the DSWD or officials
of the NCDA (formerly NCWDP). It is well to remember that what
entitles a person to the privileges of the law is his disability, the
fact of which he must prove to qualify. Thus, in NCDA
Administrative Order (A.O.) No. 001, series of 2008, 77 it is required
that the person claiming disability must submit the following
requirements before he shall be issued a PWD Identification Card:
1. Two "1 x l" recent ID pictures with the names, and signatures or
thumb marks at the back of the picture.
2. One (1) Valid ID
3. Document to confirm the medical or disability condition 78
To confirm his disability, the person must obtain a medical
certificate or assessment, as the case maybe, issued by a licensed
private or government physician, licensed teacher or head of a
business establishment attesting to his impairment. The issuing
entity depends on whether the disability is apparent or non-
apparent. NCDAA.O. No. 001 further provides:79
To provide further safeguard, the Department of Health issued
A.O. No. 2009-0011, providing guidelines for the availment of the
20% discount on the purchase of medicines by PWDs. In making a
purchase, the individual must present the documents enumerated
in Section VI(4)(b ), to wit:
i. PWD identification card x x x
ii. Doctor's prescription stating the name of the PWD, age,
sex, address, date, generic name of the medicine, dosage
form, dosage strength, quantity, signature over printed
name of physician, physician's address, contact number of
physician or dentist, professional license number,
professional tax receipt number and narcotic license
number, if applicable. To safeguard the health of PWDs
and to prevent abuse of [R.A. No.] 9257, a doctor's
prescription is required in the purchase of over-the-counter
medicines. x x x.
iii. Purchase booklet issued by the local social/health office
to PWDs for free containing the following basic
information:

DISABILITY DOCUMENT ISSUING ENTITY a) PWD ID number

Apparent Medical Licensed Private or
Disability Certificate Government Physician b) Booklet control number

School Licensed Teacher duly c) Name of PWD

Assessment signed by the School
Principal
d) Sex
Certificate of
Disability
 Head of the Business

e) Address
Establishment

f) Date of Birth
 Head of Non-Government Organization

g) Picture
Non-Apparent Medical Licensed Private or
Disability Certificate Government Physician h) Signature of PWD
 i) Information of medicine purchased:
i.1 Name of medicine
i.2 Quantity
i.3 Attending Physician
i.4 License Number
i.5 Servicing drug store name
i.6 Name of dispensing pharmacist
j) Authorization letter of the PWD x x x in
case the medicine is bought by the
representative or caregiver of the PWD.
The PWD identification card also has a validity period of only three
years which facilitate in the monitoring of those who may need
continued support and who have been relieved of their disability,
and therefore may be taken out of the coverage of the law.
At any rate, the law has penal provisions which give concerned
establishments the option to file a case against those abusing the
privilege Section 46(b) of R.A. No. 9442 provides that "[a]ny
person who abuses the privileges granted herein shall be
punished with imprisonment of not less than six months or a fine of
not less than Five Thousand pesos (₱5,000.00), but not more than
Fifty Thousand pesos (₱50,000.00), or both, at the discretion of
the court." Thus, concerned establishments, together with the
proper government agencies, must actively participate in
monitoring compliance with the law so that only the intended
beneficiaries of the law can avail of the privileges.
Indubitably, the law is clear and unequivocal, and the petitioner
claim of vagueness to cast uncertainty in the validity of the law
does not stand.
WHEREFORE, in view of the foregoing disquisition, Section 4(a)
of Republic Act No. 9257 and Section 32 of Republic Act No. 9442
are hereby declared CONSTITUTIONAL.
<<page>>
SO ORDERED.
G.R. No. 161107 March 12, 2013
HON. MA. LOURDES C. FERNANDO, in her capacity as City
Mayor of Marikina City, JOSEPHINE C. EVANGELIST A, in her
capacity as Chief, Permit Division, Office of the City Engineer,
and ALFONSO ESPIRITU, in his capacity as City Engineer of
Marikina City, Petitioners,
vs.
ST. SCHOLASTICA'S COLLEGE and ST. SCHOLASTICA'S
ACADEMY-MARIKINA, INC., Respondents.
DECISION
MENDOZA, J.:
Before this Court is a petition for review on certiorari under Rule 45
of the Rules of Court, which seeks to set aside the December 1,
2003 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No.
75691.
The Facts
Respondents St. Scholastica’s College (SSC) and St.
Scholastica’s Academy-Marikina, Inc. (SSA-Marikina) are
educational institutions organized under the laws of the Republic
of the Philippines, with principal offices and business addresses at
Leon Guinto Street, Malate, Manila, and at West Drive, Marikina
Heights, Marikina City, respectively.2
Respondent SSC is the owner of four (4) parcels of land
measuring a total of 56,306.80 square meters, located in Marikina
Heights and covered by Transfer Certificate Title (TCT) No. 91537.
Located within the property are SSA-Marikina, the residence of the
sisters of the Benedictine Order, the formation house of the
novices, and the retirement house for the elderly sisters. The
property is enclosed by a tall concrete perimeter fence built some
thirty (30) years ago. Abutting the fence along the West Drive are
buildings, facilities, and other improvements.3
The petitioners are the officials of the City Government of
Marikina. On September 30, 1994, the Sangguniang Panlungsod
of Marikina City enacted Ordinance No. 192,4 entitled "Regulating
the Construction of Fences and Walls in the Municipality of
Marikina." In 1995 and 1998, Ordinance Nos. 2175 and 2006 were
enacted to amend Sections 7 and 5, respectively. Ordinance No.
192, as amended, is reproduced hereunder, as follows:
ORDINANCE No. 192
Series of 1994
ORDINANCE REGULATING THE CONSTRUCTION OF FENCES
AND WALLS IN THE MUNICIPALITY OF MARIKINA
WHEREAS, under Section 447.2 of Republic Act No. 7160
otherwise known as the Local Government Code of 1991
empowers the Sangguniang Bayan as the local legislative body of
the municipality to "x x x Prescribe reasonable limits and restraints
on the use of property within the jurisdiction of the municipality, x x
x";
WHEREAS the effort of the municipality to accelerate its economic
and physical development, coupled with urbanization and
modernization, makes imperative the adoption of an ordinance
which shall embody up-to-date and modern technical design in the
construction of fences of residential, commercial and industrial
buildings;
WHEREAS, Presidential Decree No. 1096, otherwise known as
the National Building Code of the Philippines, does not adequately
provide technical guidelines for the construction of fences, in terms
of design, construction, and criteria;
WHEREAS, the adoption of such technical standards shall provide
more efficient and effective enforcement of laws on public safety
and security;
WHEREAS, it has occurred in not just a few occasions that high
fences or walls did not actually discourage but, in fact, even
protected burglars, robbers, and other lawless elements from the
view of outsiders once they have gained ingress into these walls,
hence, fences not necessarily providing security, but becomes
itself a "security problem";
WHEREAS, to discourage, suppress or prevent the concealment
of prohibited or unlawful acts earlier enumerated, and as guardian
of the people of Marikina, the municipal government seeks to
enact and implement rules and ordinances to protect and promote
the health, safety and morals of its constituents;
WHEREAS, consistent too, with the "Clean and Green Program"
of the government, lowering of fences and walls shall encourage
people to plant more trees and ornamental plants in their yards,
and when visible, such trees and ornamental plants are expected
to create an aura of a clean, green and beautiful environment for
Marikeños;
WHEREAS, high fences are unsightly that, in the past, people
planted on sidewalks to "beautify" the façade of their residences
but, however, become hazards and obstructions to pedestrians;
WHEREAS, high and solid walls as fences are considered "un-
neighborly" preventing community members to easily
communicate and socialize and deemed to create "boxed-in"
mentality among the populace;
WHEREAS, to gather as wide-range of opinions and comments on
this proposal, and as a requirement of the Local Government
Code of 1991 (R.A. 7160), the Sangguniang Bayan of Marikina
invited presidents or officers of homeowners associations, and
commercial and industrial establishments in Marikina to two public
hearings held on July 28, 1994 and August 25, 1994;
WHEREAS, the rationale and mechanics of the proposed
ordinance were fully presented to the attendees and no vehement
objection was presented to the municipal government;
NOW, THEREFORE, BE IT ORDAINED BY THE SANGGUINANG
BAYAN OF MARIKINA IN SESSION DULY ASSEMBLED:
Section 1. Coverage: This Ordinance regulates the construction of
all fences, walls and gates on lots classified or used for residential,
commercial, industrial, or special purposes.
Section 2. Definition of Terms:
a. Front Yard – refers to the area of the lot fronting
a street, alley or public thoroughfare.
b. Back Yard – the part of the lot at the rear of the
structure constructed therein.
c. Open fence – type of fence which allows a view
of "thru-see" of the inner yard and the
improvements therein. (Examples: wrought iron,
wooden lattice, cyclone wire)
d. Front gate – refers to the gate which serves as a
passage of persons or vehicles fronting a street,
alley, or public thoroughfare.
Section 3. The standard height of fences or walls allowed under
this ordinance are as follows:
(1) Fences on the front yard – shall be no more
than one (1) meter in height. Fences in excess of
one (1) meter shall be of an open fence type, at
least eighty percent (80%) see-thru; and
(2) Fences on the side and back yard – shall be in
accordance with the provisions of P.D. 1096
otherwise known as the National Building Code.
Section 4. No fence of any kind shall be allowed in areas
specifically reserved or classified as parks.
Section 5. In no case shall walls and fences be built within the five
(5) meter parking area allowance located between the front
monument line and the building line of commercial and industrial
establishments and educational and religious institutions.7
Section 6. Exemption.
(1) The Ordinance does not cover perimeter walls
of residential subdivisions.
(2) When public safety or public welfare requires,
the Sangguniang Bayan may allow the
construction and/or maintenance of walls higher
than as prescribed herein and shall issue a special
permit or exemption.
Section 7. Transitory Provision. Real property owners whose
existing fences and walls do not conform to the specifications
herein are allowed adequate period of time from the passage of
this Ordinance within which to conform, as follows:
(1) Residential houses – eight (8) years
(2) Commercial establishments – five (5) years
(3) Industrial establishments – three (3) years
(4) Educational institutions – five (5) years8 (public
and privately owned)
Section 8. Penalty. Walls found not conforming to the provisions of
this Ordinance shall be demolished by the municipal government
at the expense of the owner of the lot or structure.
Section 9. The Municipal Engineering Office is tasked to strictly
implement this ordinance, including the issuance of the necessary
implementing guidelines, issuance of building and fencing permits,
and demolition of non-conforming walls at the lapse of the grace
period herein provided.
Section 10. Repealing Clause. All existing Ordinances and
Resolutions, Rules and Regulations inconsistent with the
foregoing provisions are hereby repealed, amended or modified.
Section 11. Separability Clause. If for any reason or reasons, local
executive orders, rules and regulations or parts thereof in conflict
with this Ordinance are hereby repealed and/or modified
accordingly.
Section 12. Effectivity. This ordinance takes effect after
publication.
APPROVED: September 30, 1994
(Emphases supplied)
On April 2, 2000, the City Government of Marikina sent a letter to
the respondents ordering them to demolish and replace the fence
of their Marikina property to make it 80% see-thru, and, at the
same time, to move it back about six (6) meters to provide parking
space for vehicles to park.9 On April 26, 2000, the respondents
requested for an extension of time to comply with the directive.10 In
response, the petitioners, through then City Mayor Bayani F.
Fernando, insisted on the enforcement of the subject ordinance.
Not in conformity, the respondents filed a petition for prohibition
with an application for a writ of preliminary injunction and
temporary restraining order before the Regional Trial Court,
Marikina, Branch 273 (RTC), docketed as SCA Case No. 2000-
381-MK.11
The respondents argued that the petitioners were acting in excess
of jurisdiction in enforcing Ordinance No. 192, asserting that such
contravenes Section 1, Article III of the 1987 Constitution. That
demolishing their fence and constructing it six (6) meters back
would result in the loss of at least 1,808.34 square meters, worth
about ₱9,041,700.00, along West Drive, and at least 1,954.02
square meters, worth roughly ₱9,770,100.00, along East Drive. It
would also result in the destruction of the garbage house, covered
walk, electric house, storage house, comfort rooms, guards’ room,
guards’ post, waiting area for visitors, waiting area for students,
Blessed Virgin Shrine, P.E. area, and the multi-purpose hall,
resulting in the permanent loss of their beneficial use. The
respondents, thus, asserted that the implementation of the
ordinance on their property would be tantamount to an
appropriation of property without due process of law; and that the
petitioners could only appropriate a portion of their property
through eminent domain. They also pointed out that the goal of the
provisions to deter lawless elements and criminality did not exist
as the solid concrete walls of the school had served as sufficient
protection for many years.12
The petitioners, on the other hand, countered that the ordinance
was a valid exercise of police power, by virtue of which, they could
restrain property rights for the protection of public safety, health,
morals, or the promotion of public convenience and general
prosperity.13
On June 30, 2000, the RTC issued a writ of preliminary injunction,
enjoining the petitioners from implementing the demolition of the
fence at SSC’s Marikina property.14
Ruling of the RTC
On the merits, the RTC rendered a Decision,15 dated October 2,
2002, granting the petition and ordering the issuance of a writ of
prohibition commanding the petitioners to permanently desist from
enforcing or implementing Ordinance No. 192 on the respondents’
property.
The RTC agreed with the respondents that the order of the
petitioners to demolish the fence at the SSC property in Marikina
and to move it back six (6) meters would amount to an
appropriation of property which could only be done through the
exercise of eminent domain. It held that the petitioners could not
take the respondents’ property under the guise of police power to
evade the payment of just compensation.
It did not give weight to the petitioners’ contention that the parking
space was for the benefit of the students and patrons of SSA-
Marikina, considering that the respondents were already providing
for sufficient parking in compliance with the standards under Rule
XIX of the National Building Code.
It further found that the 80% see-thru fence requirement could run
counter to the respondents’ right to privacy, considering that the
property also served as a residence of the Benedictine sisters,
who were entitled to some sense of privacy in their affairs. It also
found that the respondents were able to prove that the danger to
security had no basis in their case. Moreover, it held that the
purpose of beautification could not be used to justify the exercise
of police power.
It also observed that Section 7 of Ordinance No. 192, as
amended, provided for retroactive application. It held, however,
that such retroactive effect should not impair the respondents’
vested substantive rights over the perimeter walls, the six-meter
strips of land along the walls, and the building, structures, facilities,
and improvements, which would be destroyed by the demolition of
the walls and the seizure of the strips of land.
The RTC also found untenable the petitioners’ argument that
Ordinance No. 192 was a remedial or curative statute intended to
correct the defects of buildings and structures, which were brought
about by the absence or insufficiency of laws. It ruled that the
assailed ordinance was neither remedial nor curative in nature,
considering that at the time the respondents’ perimeter wall was
built, the same was valid and legal, and the ordinance did not refer
to any previous legislation that it sought to correct.
The RTC noted that the petitioners could still take action to
expropriate the subject property through eminent domain.
The RTC, thus, disposed:
WHEREFORE, the petition is GRANTED. The writ of prohibition is
hereby issued commanding the respondents to permanently desist
from enforcing or implementing Ordinance No. 192, Series of
1994, as amended, on petitioners’ property in question located at
Marikina Heights, Marikina, Metro Manila.
No pronouncement as to costs.
SO ORDERED.16
Ruling of the CA
In its December 1, 2003 Decision, the CA dismissed the
petitioners’ appeal and affirmed the RTC decision.
The CA reasoned out that the objectives stated in Ordinance No.
192 did not justify the exercise of police power, as it did not only
seek to regulate, but also involved the taking of the respondents’
property without due process of law. The respondents were bound
to lose an unquantifiable sense of security, the beneficial use of
their structures, and a total of 3,762.36 square meters of property.
It, thus, ruled that the assailed ordinance could not be upheld as
valid as it clearly invaded the personal and property rights of the
respondents and "[f]or being unreasonable, and undue restraint of
trade."17
It noted that although the petitioners complied with procedural due
process in enacting Ordinance No. 192, they failed to comply with
substantive due process. Hence, the failure of the respondents to
attend the public hearings in order to raise objections did not
amount to a waiver of their right to question the validity of the
ordinance.
The CA also shot down the argument that the five-meter setback
provision for parking was a legal easement, the use and
ownership of which would remain with, and inure to, the benefit of
the respondents for whom the easement was primarily intended. It
found that the real intent of the setback provision was to make the
parking space free for use by the public, considering that such
would cease to be for the exclusive use of the school and its
students as it would be situated outside school premises and
beyond the school administration’s control.
In affirming the RTC ruling that the ordinance was not a curative
statute, the CA found that the petitioner failed to point out any
irregularity or invalidity in the provisions of the National Building
Code that required correction or cure. It noted that any correction
in the Code should be properly undertaken by the Congress and
not by the City Council of Marikina through an ordinance.
The CA, thus, disposed:
WHEREFORE, all foregoing premises considered, the instant
appeal is DENIED. The October 2, 2002 Decision and the
1âwphi 1
January 13, 2003 Order of the Regional Trial Court (RTC) of
Marikina City, Branch 273, granting petitioners-appellees’ petition
for Prohibition in SCA Case No. 2000-381-MK are hereby
AFFIRMED.
SO ORDERED.18
Aggrieved by the decision of the CA, the petitioners are now
before this Court presenting the following
ASSIGNMENT OF ERRORS
1. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN DECLARING THAT CITY
ORDINANCE NO. 192, SERIES OF 1994 IS NOT A VALID
EXERCISE OF POLICE POWER;
2. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN RULING THAT THE
AFOREMENTIONED ORDINANCE IS AN EXERCISE OF
THE CITY OF THE POWER OF EMINENT DOMAIN;
3. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN DECLARING THAT THE CITY
VIOLATED THE DUE PROCESS CLAUSE IN
IMPLEMENTING ORDINANCE NO. 192, SERIES OF
1994; AND
4. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN RULING THAT THE ABOVE-
MENTIONED ORDINANCE CANNOT BE GIVEN
RETROACTIVE APPLICATION.19
In this case, the petitioners admit that Section 5 of the assailed
ordinance, pertaining to the five-meter setback requirement is, as
held by the lower courts, invalid.20 Nonetheless, the petitioners
argue that such invalidity was subsequently cured by Zoning
Ordinance No. 303, series of 2000. They also contend that Section
3, relating to the 80% see-thru fence requirement, must be
complied with, as it remains to be valid.
Ruling of the Court
The ultimate question before the Court is whether Sections 3.1
and 5 of Ordinance No. 192 are valid exercises of police power by
the City Government of Marikina.
"Police power is the plenary power vested in the legislature to
make statutes and ordinances to promote the health, morals,
peace, education, good order or safety and general welfare of the
people."21 The State, through the legislature, has delegated the
exercise of police power to local government units, as agencies of
the State. This delegation of police power is embodied in Section
1622 of the Local Government Code of 1991 (R.A. No. 7160),
known as the General Welfare Clause,23 which has two branches.
"The first, known as the general legislative power, authorizes the
municipal council to enact ordinances and make regulations not
repugnant to law, as may be necessary to carry into effect and
discharge the powers and duties conferred upon the municipal
council by law. The second, known as the police power proper,
authorizes the municipality to enact ordinances as may be
necessary and proper for the health and safety, prosperity, morals,
peace, good order, comfort, and convenience of the municipality
and its inhabitants, and for the protection of their property."24
White Light Corporation v. City of Manila,25 discusses the test of a
valid ordinance:
The test of a valid ordinance is well established. A long line of
decisions including City of Manila has held that for an ordinance to
be valid, it must not only be within the corporate powers of the
local government unit to enact and pass according to the
procedure prescribed by law, it must also conform to the following
substantive requirements: (1) must not contravene the
Constitution or any statute; (2) must not be unfair or oppressive;
(3) must not be partial or discriminatory; (4) must not prohibit but
may regulate trade; (5) must be general and consistent with public
policy; and (6) must not be unreasonable.26
Ordinance No. 192 was passed by the City Council of Marikina in
the apparent exercise of its police power. To successfully invoke
the exercise of police power as the rationale for the enactment of
an ordinance and to free it from the imputation of constitutional
infirmity, two tests have been used by the Court – the rational
relationship test and the strict scrutiny test:
We ourselves have often applied the rational basis test mainly in
analysis of equal protection challenges. Using the rational basis
examination, laws or ordinances are upheld if they rationally
further a legitimate governmental interest. Under intermediate
review, governmental interest is extensively examined and the
availability of less restrictive measures is considered. Applying
strict scrutiny, the focus is on the presence of compelling, rather
than substantial, governmental interest and on the absence of less
restrictive means for achieving that interest.27
Even without going to a discussion of the strict scrutiny test,
Ordinance No. 192, series of 1994 must be struck down for not
being reasonably necessary to accomplish the City’s purpose.
More importantly, it is oppressive of private rights.
Under the rational relationship test, an ordinance must pass the
following requisites as discussed in Social Justice Society (SJS) v.
Atienza, Jr.:28
As with the State, local governments may be considered as having
properly exercised their police power only if the following requisites
are met: (1) the interests of the public generally, as distinguished
from those of a particular class, require its exercise and (2) the
means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon
individuals. In short, there must be a concurrence of a lawful
subject and lawful method.29
Lacking a concurrence of these two requisites, the police power
measure shall be struck down as an arbitrary intrusion into private
rights and a violation of the due process clause.30
Section 3.1 and 5 of the assailed ordinance are pertinent to the
issue at hand, to wit:
Section 3. The standard height of fences of walls allowed under
this ordinance are as follows:
(1) Fences on the front yard – shall be no more than one (1) meter
in height. Fences in excess of one (1) meter shall be an open
fence type, at least eighty percent (80%) see-thru;
xxx xxx xxx
Section 5. In no case shall walls and fences be built within the five
(5) meter parking area allowance located between the front
monument line and the building line of commercial and industrial
establishments and educational and religious institutions.
The respondents, thus, sought to prohibit the petitioners from
requiring them to (1) demolish their existing concrete wall, (2) build
a fence (in excess of one meter) which must be 80% see-thru, and
(3) build the said fence six meters back in order to provide a
parking area.
Setback Requirement
The Court first turns its attention to Section 5 which requires the
five-meter setback of the fence to provide for a parking area. The
petitioners initially argued that the ownership of the parking area to
be created would remain with the respondents as it would primarily
be for the use of its students and faculty, and that its use by the
public on non-school days would only be incidental. In their Reply,
however, the petitioners admitted that Section 5 was, in fact,
invalid for being repugnant to the Constitution.31
The Court agrees with the latter position.
The Court joins the CA in finding that the real intent of the setback
requirement was to make the parking space free for use by the
public, considering that it would no longer be for the exclusive use
of the respondents as it would also be available for use by the
general public. Section 9 of Article III of the 1987 Constitution, a
provision on eminent domain, provides that private property shall
not be taken for public use without just compensation.
The petitioners cannot justify the setback by arguing that the
ownership of the property will continue to remain with the
respondents. It is a settled rule that neither the acquisition of title
nor the total destruction of value is essential to taking. In fact, it is
usually in cases where the title remains with the private owner that
inquiry should be made to determine whether the impairment of a
property is merely regulated or amounts to a compensable
taking.32 The Court is of the view that the implementation of the
setback requirement would be tantamount to a taking of a total of
3,762.36 square meters of the respondents’ private property for
public use without just compensation, in contravention to the
Constitution.
Anent the objectives of prevention of concealment of unlawful acts
and "un-neighborliness," it is obvious that providing for a parking
area has no logical connection to, and is not reasonably necessary
for, the accomplishment of these goals.
Regarding the beautification purpose of the setback requirement, it
has long been settled that the State may not, under the guise of
police power, permanently divest owners of the beneficial use of
their property solely to preserve or enhance the aesthetic
appearance of the community.33 The Court, thus, finds Section 5 to
be unreasonable and oppressive as it will substantially divest the
respondents of the beneficial use of their property solely for
aesthetic purposes. Accordingly, Section 5 of Ordinance No. 192
is invalid.
The petitioners, however, argue that the invalidity of Section 5 was
properly cured by Zoning Ordinance No. 303,34 Series of 2000,
which classified the respondents’ property to be within an
institutional zone, under which a five-meter setback has been
required.
The petitioners are mistaken. Ordinance No. 303, Series of 2000,
has no bearing to the case at hand.
The Court notes with displeasure that this argument was only
raised for the first time on appeal in this Court in the petitioners’
Reply. Considering that Ordinance No. 303 was enacted on
December 20, 2000, the petitioners could very well have raised it
in their defense before the RTC in 2002. The settled rule in this
jurisdiction is that a party cannot change the legal theory of this
case under which the controversy was heard and decided in the
trial court. It should be the same theory under which the review on
appeal is conducted. Points of law, theories, issues, and
arguments not adequately brought to the attention of the lower
court will not be ordinarily considered by a reviewing court,
inasmuch as they cannot be raised for the first time on appeal.
This will be offensive to the basic rules of fair play, justice, and due
process.35
Furthermore, the two ordinances have completely different
purposes and subjects. Ordinance No. 192 aims to regulate the
construction of fences, while Ordinance No. 303 is a zoning
ordinance which classifies the city into specific land uses. In fact,
the five-meter setback required by Ordinance No. 303 does not
even appear to be for the purpose of providing a parking area.
By no stretch of the imagination, therefore, can Ordinance No.
303, "cure" Section 5 of Ordinance No. 192.
In any case, the clear subject of the petition for prohibition filed by
the respondents is Ordinance No. 192 and, as such, the precise
issue to be determined is whether the petitioners can be prohibited
from enforcing the said ordinance, and no other, against the
respondents.
80% See-Thru Fence Requirement
The petitioners argue that while Section 5 of Ordinance No. 192
may be invalid, Section 3.1 limiting the height of fences to one
meter and requiring fences in excess of one meter to be at least
80% see-thru, should remain valid and enforceable against the
respondents.
The Court cannot accommodate the petitioner.
For Section 3.1 to pass the rational relationship test, the
petitioners must show the reasonable relation between the
purpose of the police power measure and the means employed for
its accomplishment, for even under the guise of protecting the
public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded.36
The principal purpose of Section 3.1 is "to discourage, suppress or
prevent the concealment of prohibited or unlawful acts." The
ultimate goal of this objective is clearly the prevention of crime to
ensure public safety and security. The means employed by the
petitioners, however, is not reasonably necessary for the
accomplishment of this purpose and is unduly oppressive to
private rights. The petitioners have not adequately shown, and it
does not appear obvious to this Court, that an 80% see-thru fence
would provide better protection and a higher level of security, or
serve as a more satisfactory criminal deterrent, than a tall solid
concrete wall. It may even be argued that such exposed premises
could entice and tempt would-be criminals to the property, and that
a see-thru fence would be easier to bypass and breach. It also
appears that the respondents’ concrete wall has served as more
than sufficient protection over the last 40 years. `
As to the beautification purpose of the assailed ordinance, as
previously discussed, the State may not, under the guise of police
power, infringe on private rights solely for the sake of the aesthetic
appearance of the community. Similarly, the Court cannot perceive
how a see-thru fence will foster "neighborliness" between
members of a community.
Compelling the respondents to construct their fence in accordance
with the assailed ordinance is, thus, a clear encroachment on their
right to property, which necessarily includes their right to decide
how best to protect their property.
It also appears that requiring the exposure of their property via a
see-thru fence is violative of their right to privacy, considering that
the residence of the Benedictine nuns is also located within the
property. The right to privacy has long been considered a
fundamental right guaranteed by the Constitution that must be
protected from intrusion or constraint. The right to privacy is
essentially the right to be let alone,37 as governmental powers
should stop short of certain intrusions into the personal life of its
citizens.38 It is inherent in the concept of liberty, enshrined in the
Bill of Rights (Article III) in Sections 1, 2, 3(1), 6, 8, and 17, Article
III of the 1987 Constitution.39
The enforcement of Section 3.1 would, therefore, result in an
undue interference with the respondents’ rights to property and
privacy. Section 3.1 of Ordinance No. 192 is, thus, also invalid and
cannot be enforced against the respondents.
No Retroactivity
Ordinance No. 217 amended Section 7 of Ordinance No. 192 by
including the regulation of educational institutions which was
unintentionally omitted, and giving said educational institutions five
(5) years from the passage of Ordinance No. 192 (and not
Ordinance No. 217) to conform to its provisions.40 The petitioners
argued that the amendment could be retroactively applied
because the assailed ordinance is a curative statute which is
retroactive in nature.
Considering that Sections 3.1 and 5 of Ordinance No. 192 cannot
be enforced against the respondents, it is no longer necessary to
rule on the issue of retroactivity. The Court shall, nevertheless,
pass upon the issue for the sake of clarity.
"Curative statutes are enacted to cure defects in a prior law or to
validate legal proceedings which would otherwise be void for want
of conformity with certain legal requirements. They are intended to
supply defects, abridge superfluities and curb certain evils. They
are intended to enable persons to carry into effect that which they
have designed or intended, but has failed of expected legal
consequence by reason of some statutory disability or irregularity
in their own action. They make valid that which, before the
enactment of the statute was invalid. Their purpose is to give
validity to acts done that would have been invalid under existing
laws, as if existing laws have been complied with. Curative
statutes, therefore, by their very essence, are retroactive."41
The petitioners argue that Ordinance No. 192 is a curative statute
as it aims to correct or cure a defect in the National Building Code,
namely, its failure to provide for adequate guidelines for the
construction of fences. They ultimately seek to remedy an
insufficiency in the law. In aiming to cure this insufficiency, the
petitioners attempt to add lacking provisions to the National
Building Code. This is not what is contemplated by curative
statutes, which intend to correct irregularities or invalidity in the
law. The petitioners fail to point out any irregular or invalid
provision. As such, the assailed ordinance cannot qualify as
curative and retroactive in nature.
At any rate, there appears to be no insufficiency in the National
Building Code with respect to parking provisions in relation to the
issue of the respondents. Paragraph 1.16.1, Rule XIX of the Rules
and Regulations of the said code requires an educational
institution to provide one parking slot for every ten classrooms. As
found by the lower courts, the respondents provide a total of 76
parking slots for their 80 classrooms and, thus, had more than
sufficiently complied with the law.
Ordinance No. 192, as amended, is, therefore, not a curative
statute which may be applied retroactively.
Separability
Sections 3.1 and 5 of Ordinance No. 192, as amended, are, thus,
invalid and cannot be enforced against the respondents.
Nonetheless, "the general rule is that where part of a statute is
void as repugnant to the Constitution, while another part is valid,
the valid portion, if susceptible to being separated from the invalid,
may stand and be enforced."42 Thus, the other sections of the
assailed ordinance remain valid and enforceable.
Conclusion
Considering the invalidity of Sections 3.1 and 5, it is clear that the
petitioners were acting in excess of their jurisdiction in enforcing
Ordinance No. 192 against the respondents. The CA was correct
in affirming the decision of the RTC in issuing the writ of
prohibition. The petitioners must permanently desist from enforcing
Sections 3.1 and 5 of the assailed ordinance on the respondents'
property in Marikina City.
WHEREFORE, the petition is DENIED. The October 2, 2002
Decision of the Regional Trial Court in SCA Case No. 2000-381-
MK is AFFIRMED but MODIFIED to read as follows:
WHEREFORE, the petition is GRANTED. The writ of prohibition is
hereby issued commanding the respondents to permanently desist
from enforcing or implementing Sections 3.1 and 5 of Ordinance
No. 192, Series of 1994, as amended, on the petitioners' property
in question located in Marikina Heights, Marikina, Metro Manila.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 197676 February 4, 2014
REMMAN ENTERPRISES, INC. and CHAMBER OF REAL
ESTATE AND BUILDERS'ASSOCIATION, Petitioners,
vs.
PROFESSIONAL REGULATORY BOARD OF REAL ESTATE
SERVICE and PROFESSIONAL REGULATION
COMMISSION, Respondents.
DECISION
VILLARAMA, JR., J.:
Assailed in this petition for review under Rule 45 is the
Decision1 dated July 12, 2011 of the Regional Trial Court (RTC) of
Manila, Branch 42 denying the petition to declare as
unconstitutional Sections 28(a), 29 and 32 of Republic Act (R.A.)
No. 9646.
R.A. No. 9646, otherwise known as the "Real Estate Service Act of
the Philippines" was signed into law on June 29, 2009 by
President Gloria Macapagal-Arroyo. It aims to professionalize the
real estate service sector under a regulatory scheme of licensing,
registration and supervision of real estate service practitioners
(real estate brokers, appraisers, assessors, consultants and
salespersons) in the country. Prior to its enactment, real estate
service practitioners were under the supervision of the Department
of Trade and Industry (DTI) through the Bureau of Trade
Regulation and Consumer Protection (BTRCP), in the exercise of
its consumer regulation functions. Such authority is now
transferred to the Professional Regulation Commission (PRC)
through the Professional Regulatory Board of Real Estate Service
(PRBRES) created under the new law.
The implementing rules and regulations (IRR) of R.A. No. 9646
were promulgated on July 21, 2010 by the PRC and PRBRES
under Resolution No. 02, Series of 2010.
On December 7, 2010, herein petitioners Remman Enterprises,
Inc. (REI) and the Chamber of Real Estate and Builders’
Association (CREBA) instituted Civil Case No. 10-124776 in the
Regional Trial Court of Manila, Branch 42. Petitioners sought to
declare as void and unconstitutional the following provisions of
R.A. No. 9646:
SEC. 28. Exemptions from the Acts Constituting the Practice of
Real Estate Service. – The provisions of this Act and its rules and
regulations shall not apply to the following:
(a) Any person, natural or juridical, who shall directly perform by
himself/herself the acts mentioned in Section 3 hereof with
reference to his/her or its own property, except real estate
developers;
xxxx
SEC. 29. Prohibition Against the Unauthorized Practice of Real
Estate Service. – No person shall practice or offer to practice real
estate service in the Philippines or offer himself/herself as real
estate service practitioner, or use the title, word, letter, figure or
any sign tending to convey the impression that one is a real estate
service practitioner, or advertise or indicate in any manner
whatsoever that one is qualified to practice the profession, or be
appointed as real property appraiser or assessor in any national
government entity or local government unit, unless he/she has
satisfactorily passed the licensure examination given by the Board,
except as otherwise provided in this Act, a holder of a valid
certificate of registration, and professional identification card or a
valid special/temporary permit duly issued to him/her by the Board
and the Commission, and in the case of real estate brokers and
private appraisers, they have paid the required bond as hereto
provided.
xxxx
SEC. 32. Corporate Practice of the Real Estate Service. – (a) No
partnership or corporation shall engage in the business of real
estate service unless it is duly registered with the Securities and
Exchange Commission (SEC), and the persons authorized to act
for the partnership or corporation are all duly registered and
licensed real estate brokers, appraisers or consultants, as the
case may be. The partnership or corporation shall regularly submit
a list of its real estate service practitioners to the Commission and
to the SEC as part of its annual reportorial requirements. There
shall at least be one (1) licensed real estate broker for every
twenty (20) accredited salespersons.
(b) Divisions or departments of partnerships and corporations
engaged in marketing or selling any real estate development
project in the regular course of business must be headed by full-
time registered and licensed real estate brokers.
(c) Branch offices of real estate brokers, appraisers or consultants
must be manned by a duly licensed real estate broker, appraiser
or consultant as the case may be.
In case of resignation or termination from employment of a real
estate service practitioner, the same shall be reported by the
employer to the Board within a period not to exceed fifteen (15)
days from the date of effectivity of the resignation or termination.
Subject to the provisions of the Labor Code, a corporation or
partnership may hire the services of registered and licensed real
estate brokers, appraisers or consultants on commission basis to
perform real estate services and the latter shall be deemed
independent contractors and not employees of such corporations.
(Emphasis and underscoring supplied.)
According to petitioners, the new law is constitutionally infirm
because (1) it violates Article VI, Section 26 (1) of the 1987
Philippine Constitution which mandates that "[e]very bill passed by
Congress shall embrace only one subject which shall be
expressed in the title thereof"; (2) it is in direct conflict with
Executive Order (E.O.) No. 648 which transferred the exclusive
jurisdiction of the National Housing Authority (NHA) to regulate the
real estate trade and business to the Human Settlements
Commission, now the Housing and Land Use Regulatory Board
(HLURB), which authority includes the issuance of license to sell
of subdivision owners and developers pursuant to Presidential
Decree (P.D.) No. 957; (3) it violates the due process clause as it
impinges on the real estate developers’ most basic ownership
rights, the right to use and dispose property, which is enshrined in
Article 428 of the Civil Code; and (4) Section 28(a) of R.A. No.
9646 violates the equal protection clause as no substantial
distinctions exist between real estate developers and the
exempted group mentioned since both are property owners
dealing with their own property.
Additionally, petitioners contended that the lofty goal of nurturing
and developing a "corps of technically competent, reasonable and
respected professional real estate service practitioners" is not
served by curtailing the right of real estate developers to conduct
their business of selling properties. On the contrary, these
restrictions would have disastrous effects on the real estate
industry as the additional cost of commissions would affect the
pricing and affordability of real estate packages. When that
happens, petitioners claimed that the millions of jobs and billions in
revenues that the real estate industry generates for the
government will be a thing of the past.
After a summary hearing, the trial court denied the prayer for
issuance of a writ of preliminary injunction.
On July 12, 2011, the trial court rendered its Decision2 denying the
petition. The trial court held that the assailed provisions are
relevant to the title of the law as they are intended to regulate the
practice of real estate service in the country by ensuring that those
who engage in it shall either be a licensed real estate broker, or
under the latter’s supervision. It likewise found no real discord
between E.O. No. 648 and R.A. No. 9646 as the latter does not
render nugatory the license to sell granted by the HLURB to real
estate developers, which license would still subsist. The only
difference is that by virtue of the new law, real estate developers
will now be compelled to hire the services of one licensed real
estate broker for every twenty salespersons to guide and
supervise the coterie of salespersons under the employ of the real
estate developers.
On the issue of due process, the trial court said that the
questioned provisions do not preclude property owners from using,
enjoying, or disposing of their own property because they can still
develop and sell their properties except that they have to secure
the services of a licensed real estate broker who shall oversee the
actions of the unlicensed real estate practitioners under their
employ. Since the subject provisions merely prescribe the
requirements for the regulation of the practice of real estate
services, these are consistent with a valid exercise of the State’s
police power. The trial court further ruled that Section 28(a) does
not violate the equal protection clause because the exemption of
real estate developers was anchored on reasonable classification
aimed at protecting the buying public from the rampant
misrepresentations often committed by unlicensed real estate
practitioners, and to prevent unscrupulous and unethical real
estate practices from flourishing considering the large number of
consumers in the regular course of business compared to isolated
sale transactions made by private individuals selling their own
property.
Hence, this appeal on the following questions of law:
1. Whether there is a justiciable controversy for this
Honorable Court to adjudicate;
2. Whether [R.A. No. 9646] is unconstitutional for violating
the "one title-one subject" rule under Article VI, Section 26
(1) of the Philippine Constitution;
3. Whether [R.A. No. 9646] is in conflict with PD 957, as
amended by EO 648, with respect to the exclusive
jurisdiction of the HLURB to regulate real estate
developers;
4. Whether Sections 28(a), 29, and 32 of [R.A. No. 9646],
insofar as they affect the rights of real estate developers,
are unconstitutional for violating substantive due process;
and
5. Whether Section 28(a), which treats real estate
developers differently from other natural or juridical
persons who directly perform acts of real estate service
with reference to their own property, is unconstitutional for
violating the equal protection clause.3
The Court’s Ruling
The petition has no merit.
Justiciable Controversy
The Constitution4 requires as a condition precedent for the
exercise of judicial power the existence of an actual controversy
between litigants. An actual case or controversy involves a conflict
of legal rights, an assertion of opposite legal claims susceptible to
judicial resolution.5 The controversy must be justiciable – definite
and concrete – touching on the legal relations of parties having
adverse legal interests, which may be resolved by a court of law
through the application of a law.6 In other words, the pleadings
must show an active antagonistic assertion of a legal right, on the
one hand, and a denial thereof on the other; that is, it must
concern a real and not a merely theoretical question or issue.
There ought to be an actual and substantial controversy admitting
of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be
upon a hypothetical state of facts.7 An actual case is ripe for
adjudication when the act being challenged has a direct adverse
effect on the individual challenging it.8
There is no question here that petitioners who are real estate
developers are entities directly affected by the prohibition on
performing acts constituting practice of real estate service without
first complying with the registration and licensing requirements for
brokers and agents under R.A. No. 9646. The possibility of
criminal sanctions for disobeying the mandate of the new law is
likewise real. Asserting that the prohibition violates their rights as
property owners to dispose of their properties, petitioners
challenged on constitutional grounds the implementation of R.A.
No. 9646 which the respondents defended as a valid legislation
pursuant to the State’s police power. The Court thus finds a
justiciable controversy that calls for immediate resolution.
No Violation of One-Title One-Subject Rule
Section 26(1), Article VI of the Constitution states:
SEC. 26 (1). Every bill passed by the Congress shall embrace only
one subject which shall be expressed in the title thereof.
In Fariñas v. The Executive Secretary,9 the Court explained the
provision as follows:
The proscription is aimed against the evils of the so-called
omnibus bills and log-rolling legislation as well as surreptitious
and/or unconsidered encroaches. The provision merely calls for all
parts of an act relating to its subject finding expression in its title.
To determine whether there has been compliance with the
constitutional requirement that the subject of an act shall be
expressed in its title, the Court laid down the rule that –
Constitutional provisions relating to the subject matter and titles of
statutes should not be so narrowly construed as to cripple or
impede the power of legislation. The requirement that the subject
of an act shall be expressed in its title should receive a reasonable
and not a technical construction. It is sufficient if the title be
comprehensive enough reasonably to include the general object
which a statute seeks to effect, without expressing each and every
end and means necessary or convenient for the accomplishing of
that object. Mere details need not be set forth. The title need not
be an abstract or index of the Act.10 (Emphasis supplied.)
The Court has previously ruled that the one-subject requirement
under the Constitution is satisfied if all the parts of the statute are
related, and are germane to the subject matter expressed in the
title, or as long as they are not inconsistent with or foreign to the
general subject and title.11 An act having a single general subject,
indicated in the title, may contain any number of provisions, no
matter how diverse they may be, so long as they are not
inconsistent with or foreign to the general subject, and may be
considered in furtherance of such subject by providing for the
method and means of carrying out the general object.12
It is also well-settled that the "one title-one subject" rule does not
require the Congress to employ in the title of the enactment
language of such precision as to mirror, fully index or catalogue all
the contents and the minute details therein. The rule is sufficiently
complied with if the title is comprehensive enough as to include
the general object which the statute seeks to effect.13 Indeed, this
Court has invariably adopted a liberal rather than technical
construction of the rule "so as not to cripple or impede
legislation."14
R.A. No. 9646 is entitled "An Act Regulating the Practice of Real
Estate Service in the Philippines, Creating for the Purpose a
Professional Regulatory Board of Real Estate Service,
Appropriating Funds Therefor and For Other Purposes." Aside
from provisions establishing a regulatory system for the
professionalization of the real estate service sector, the new law
extended its coverage to real estate developers with respect to
their own properties. Henceforth, real estate developers are
prohibited from performing acts or transactions constituting real
estate service practice without first complying with registration and
licensing requirements for their business, brokers or agents,
appraisers, consultants and salespersons.
Petitioners point out that since partnerships or corporations
engaged in marketing or selling any real estate development
project in the regular course of business are now required to be
headed by full-time, registered and licensed real estate brokers,
this requirement constitutes limitations on the property rights and
business prerogatives of real estate developers which are not all
reflected in the title of R.A. No. 9646. Neither are real estate
developers, who are already regulated under a different law, P.D.
No. 957, included in the definition of real estate service
practitioners.
We hold that R.A. No. 9646 does not violate the one-title, one-
subject rule.
The primary objective of R.A. No. 9646 is expressed as follows:
SEC. 2. Declaration of Policy. – The State recognizes the vital role
of real estate service practitioners in the social, political, economic
development and progress of the country by promoting the real
estate market, stimulating economic activity and enhancing
government income from real property-based transactions. Hence,
it shall develop and nurture through proper and effective regulation
and supervision a corps of technically competent, responsible and
respected professional real estate service practitioners whose
standards of practice and service shall be globally competitive and
will promote the growth of the real estate industry.
We find that the inclusion of real estate developers is germane to
the law’s primary goal of developing "a corps of technically
competent, responsible and respected professional real estate
service practitioners whose standards of practice and service shall
be globally competitive and will promote the growth of the real
estate industry." Since the marketing aspect of real estate
development projects entails the performance of those acts and
transactions defined as real estate service practices under Section
3(g) of R.A. No. 9646, it is logically covered by the regulatory
scheme to professionalize the entire real estate service sector.
No Conflict Between R.A. No. 9646
and P.D. No. 957, as amended by E.O. No. 648
Petitioners argue that the assailed provisions still cannot be
sustained because they conflict with P.D. No. 957 which decreed
that the NHA shall have "exclusive jurisdiction to regulate the real
estate trade and business." Such jurisdiction includes the authority
to issue a license to sell to real estate developers and to register
real estate dealers, brokers or salesmen upon their fulfillment of
certain requirements under the law. By imposing limitations on real
estate developers’ property rights, petitioners contend that R.A.
No. 9646 undermines the licenses to sell issued by the NHA (now
the HLURB) to real estate developers allowing them to sell
subdivision lots or condominium units directly to the public.
Because the HLURB has been divested of its exclusive jurisdiction
over real estate developers, the result is an implied repeal of P.D.
No. 957 as amended by E.O. No. 648, which is not favored in law.
It is a well-settled rule of statutory construction that repeals by
implication are not favored. In order to effect a repeal by
implication, the later statute must be so irreconcilably inconsistent
and repugnant with the existing law that they cannot be made to
reconcile and stand together. The clearest case possible must be
made before the inference of implied repeal may be drawn, for
inconsistency is never presumed. There must be a showing of
repugnance clear and convincing in character. The language used
in the later statute must be such as to render it irreconcilable with
what had been formerly enacted. An inconsistency that falls short
of that standard does not suffice.15 Moreover, the failure to add a
specific repealing clause indicates that the intent was not to repeal
any existing law, unless an irreconcilable inconsistency and
repugnancy exist in the terms of the new and old laws.16
There is nothing in R.A. No. 9646 that repeals any provision of
P.D. No. 957, as amended by E.O. No. 648. P.D. No. 957,
otherwise known as "The Subdivision and Condominium Buyers’
Protective Decree,"17 vested the NHA with exclusive jurisdiction to
regulate the real estate trade and business in accordance with its
provisions. It empowered the NHA to register, approve and
monitor real estate development projects and issue licenses to sell
to real estate owners and developers. It further granted the NHA
the authority to register and issue/revoke licenses of brokers,
dealers and salesmen engaged in the selling of subdivision lots
and condominium units.
E.O. No. 648, issued on February 7, 1981, reorganized the Human
Settlements Regulatory Commission (HSRC) and transferred the
regulatory functions of the NHA under P.D. 957 to the HSRC.
Among these regulatory functions were the (1) regulation of the
real estate trade and business; (2) registration of subdivision lots
and condominium projects; (3) issuance of license to sell
subdivision lots and condominium units in the registered units; (4)
approval of performance bond and the suspension of license to
sell; (5) registration of dealers, brokers and salesman engaged in
the business of selling subdivision lots or condominium units; and
(6) revocation of registration of dealers, brokers and salesmen.18
E.O. No. 90, issued on December 17, 1986, renamed the HSRC
as the Housing and Land Use Regulatory Board (HLURB) and
was designated as the regulatory body for housing and land
development under the Housing and Urban Development
Coordinating Council (HUDCC). To date, HLURB continues to
carry out its mandate to register real estate brokers and salesmen
dealing in condominium, memorial parks and subdivision projects
pursuant to Section 11 of P.D. No. 957, which reads:
SECTION 11. Registration of Dealers, Brokers and Salesmen. –
No real estate dealer, broker or salesman shall engage in the
business of selling subdivision lots or condominium units unless he
has registered himself with the Authority in accordance with the
provisions of this section.
If the Authority shall find that the applicant is of good repute and
has complied with the applicable rules of the Authority, including
the payment of the prescribed fee, he shall register such applicant
as a dealer, broker or salesman upon filing a bond, or other
security in lieu thereof, in such sum as may be fixed by the
Authority conditioned upon his faithful compliance with the
provisions of this Decree: Provided, that the registration of a
salesman shall cease upon the termination of his employment with
a dealer or broker.
Every registration under this section shall expire on the thirty-first
day of December of each year. Renewal of registration for the
succeeding year shall be granted upon written application
therefore made not less than thirty nor more than sixty days before
the first day of the ensuing year and upon payment of the
prescribed fee, without the necessity of filing further statements or
information, unless specifically required by the Authority. All
applications filed beyond said period shall be treated as original
applications.
The names and addresses of all persons registered as dealers,
brokers, or salesmen shall be recorded in a Register of Brokers,
Dealers and Salesmen kept in the Authority which shall be open to
public inspection.
On the other hand, Section 29 of R.A. No. 9646 requires as a
condition precedent for all persons who will engage in acts
constituting real estate service, including advertising in any
manner one’s qualifications as a real estate service practitioner,
compliance with licensure examination and other registration
requirements including the filing of a bond for real estate brokers
and private appraisers. While Section 11 of P.D. No. 957 imposes
registration requirements for dealers, brokers and salespersons
engaged in the selling of subdivision lots and condominium units,
Section 29 of R.A. No. 9646 regulates all real estate service
practitioners whether private or government. While P.D. No. 957
seeks to supervise brokers and dealers who are engaged in the
sale of subdivision lots and condominium units, R.A. No. 9646
aims to regulate the real estate service sector in general by
professionalizing their ranks and raising the level of ethical
standards for licensed real estate professionals.
There is no conflict of jurisdiction because the HLURB supervises
only those real estate service practitioners engaged in the sale of
subdivision lots and condominium projects, specifically for
violations of the provisions of P.D. No. 957, and not the entire real
estate service sector which is now under the regulatory powers of
the PRBRES. HLURB’s supervision of brokers and dealers to
effectively implement the provisions of P.D. No. 957 does not
foreclose regulation of the real estate service as a profession.
Real estate developers already regulated by the HLURB are now
further required to comply with the professional licensure
requirements under R.A. No. 9646, as provided in Sections 28, 29
and 32. Plainly, there is no inconsistency or contradiction in the
assailed provisions of R.A. No. 9646 and P.D. No. 957, as
amended.
The rule is that every statute must be interpreted and brought into
accord with other laws in a way that will form a uniform system of
jurisprudence. The legislature is presumed to have known existing
laws on the subject and not to have enacted conflicting
laws.19 Congress, therefore, could not be presumed to have
intended Sections 28, 29 and 32 of R.A. No. 9646 to run counter
to P.D. No. 957.
No Violation of Due Process
Petitioners contend that the assailed provisions of R.A. No. 9646
are unduly oppressive and infringe the constitutional rule against
deprivation of property without due process of law. They stress
that real estate developers are now burdened by law to employ
licensed real estate brokers to sell, market and dispose of their
properties. Despite having invested a lot of money, time and
resources in their projects, petitioners aver that real estate
developers will still have less control in managing their business
and will be burdened with additional expenses.
The contention has no basis. There is no deprivation of property
as no restriction on their use and enjoyment of property is caused
by the implementation of R.A. No. 9646. If petitioners as property
owners feel burdened by the new requirement of engaging the
services of only licensed real estate professionals in the sale and
marketing of their properties, such is an unavoidable consequence
of a reasonable regulatory measure.
Indeed, no right is absolute, and the proper regulation of a
profession, calling, business or trade has always been upheld as a
legitimate subject of a valid exercise of the police power of the
State particularly when their conduct affects the execution of
legitimate governmental functions, the preservation of the State,
public health and welfare and public morals.20 In any case, where
the liberty curtailed affects at most the rights of property, the
permissible scope of regulatory measures is certainly much wider.
To pretend that licensing or accreditation requirements violate the
due process clause is to ignore the settled practice, under the
mantle of police power, of regulating entry to the practice of
various trades or professions.21
Here, the legislature recognized the importance of
professionalizing the ranks of real estate practitioners by
increasing their competence and raising ethical standards as real
property transactions are "susceptible to manipulation and
corruption, especially if they are in the hands of unqualified
persons working under an ineffective regulatory system." The new
regulatory regime aimed to fully tap the vast potential of the real
estate sector for greater contribution to our gross domestic
income, and real estate practitioners "serve a vital role in
spearheading the continuous flow of capital, in boosting investor
confidence, and in promoting overall national progress."22
We thus find R.A. No. 9646 a valid exercise of the State’s police
power. As we said in another case challenging the constitutionality
of a law granting discounts to senior citizens:
The law is a legitimate exercise of police power which, similar to
the power of eminent domain, has general welfare for its object.
Police power is not capable of an exact definition, but has been
purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough
room for an efficient and flexible response to conditions and
circumstances, thus assuring the greatest benefits. Accordingly, it
has been described as "the most essential, insistent and the least
limitable of powers, extending as it does to all the great public
needs." It is "[t]he power vested in the legislature by the
constitution to make, ordain, and establish all manner of
wholesome and reasonable laws, statutes, and ordinances, either
with penalties or without, not repugnant to the constitution, as they
shall judge to be for the good and welfare of the commonwealth,
and of the subjects of the same."
For this reason, when the conditions so demand as determined by
the legislature, property rights must bow to the primacy of police
power because property rights, though sheltered by due process,
must yield to general welfare.
Police power as an attribute to promote the common good would
be diluted considerably if on the mere plea of petitioners that they
will suffer loss of earnings and capital, the questioned provision is
invalidated. Moreover, in the absence of evidence demonstrating
the alleged confiscatory effect of the provision in question, there is
no basis for its nullification in view of the presumption of validity
which every law has in its favor.23 (Emphasis supplied.)
No Violation of Equal Protection Clause
Section 28 of R.A. No. 9646 exempts from its coverage natural
and juridical persons dealing with their own property, and other
persons such as receivers, trustees or assignees in insolvency or
bankruptcy proceedings. However, real estate developers are
specifically mentioned as an exception from those enumerated
therein. Petitioners argue that this provision violates the equal
protection clause because it unjustifiably treats real estate
developers differently from those exempted persons who also own
properties and desire to sell them. They insist that no substantial
distinctions exist between ordinary property owners and real estate
developers as the latter, in fact, are more capable of entering into
real estate transactions and do not need the services of licensed
real estate brokers. They assail the RTC decision in citing the
1âw phi 1
reported fraudulent practices as basis for the exclusion of real
estate developers from the exempted group of persons under
Section 28(a).
We sustain the trial court’s ruling that R.A. No. 9646 does not
violate the equal protection clause.
In Ichong v. Hernandez,24 the concept of equal protection was
explained as follows:
The equal protection of the law clause is against undue favor and
individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is directed or by
territory within which it is to operate. It does not demand absolute
equality among residents; it merely requires that all persons shall
be treated alike, under like circumstances and conditions both as
to privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies only
to those persons falling within such class, and reasonable grounds
exists for making a distinction between those who fall within such
class and those who do not. (2 Cooley, Constitutional Limitations,
824-825).25
Although the equal protection clause of the Constitution does not
forbid classification, it is imperative that the classification should be
based on real and substantial differences having a reasonable
relation to the subject of the particular legislation.26 If classification
is germane to the purpose of the law, concerns all members of the
class, and applies equally to present and future conditions, the
classification does not violate the equal protection guarantee.27
R.A. No. 9646 was intended to provide institutionalized
government support for the development of "a corps of highly
respected, technically competent, and disciplined real estate
service practitioners, knowledgeable of internationally accepted
standards and practice of the profession."28 Real estate developers
at present constitute a sector that hires or employs the largest
number of brokers, salespersons, appraisers and consultants due
to the sheer number of products (lots, houses and condominium
units) they advertise and sell nationwide. As early as in the ‘70s,
there has been a proliferation of errant developers, operators or
sellers who have reneged on their representation and obligations
to comply with government regulations such as the provision and
maintenance of subdivision roads, drainage, sewerage, water
system and other basic requirements. To protect the interest of
home and lot buyers from fraudulent acts and manipulations
perpetrated by these unscrupulous subdivision and condominium
sellers and operators, P.D. No. 957 was issued to strictly regulate
housing and real estate development projects. Hence, in
approving R.A. No. 9646, the legislature rightfully recognized the
necessity of imposing the new licensure requirements to all real
estate service practitioners, including and more importantly, those
real estate service practitioners working for real estate developers.
Unlike individuals or entities having isolated transactions over their
own property, real estate developers sell lots, houses and
condominium units in the ordinary course of business, a business
which is highly regulated by the State to ensure the health and
safety of home and lot buyers.
The foregoing shows that substantial distinctions do exist between
ordinary property owners exempted under Section 28(a) and real
estate developers like petitioners, and the classification enshrined
in R.A. No. 9646 is reasonable and relevant to its legitimate
purpose. The Court thus rules that R.A. No. 9646 is valid and
constitutional.
Since every law is presumed valid, the presumption of
constitutionality can be overcome only by the clearest showing
that there was indeed an infraction of the Constitution, and only
when such a conclusion is reached by the required majority may
the Court pronounce, in the discharge of the duty it cannot escape,
that the challenged act must be struck down.29
Indeed, "all presumptions are indulged in favor of constitutionality;
one who attacks a statute, alleging unconstitutionality must prove
its invalidity beyond a reasonable doubt; that a law may work
hardship does not render it unconstitutional; that if any reasonable
basis may be conceived which supports the statute, it will be
upheld, and the challenger must negate all possible bases; that
the courts are not concerned with the wisdom, justice, policy, or
expediency of a statute; and that a liberal interpretation of the
constitution in favor of the constitutionality of legislation should be
adopted."30
WHEREFORE, the petition is DENIED. The Decision dated July
12, 2011 of the Regional Trial Court of Manila, Branch 42 in Civil
Case No. 10-124776 is hereby AFFIRMED and UPHELD.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 208062, April 07, 2015
SOCIAL WEATHER STATIONS, INC. AND PULSE ASIA,
INC., Petitioners, v. COMMISSION ON ELECTIONS, Respondent.
DECISION
LEONEN, J.:
1 10
This resolves the Petition for certiorari and prohibition under Rule 64,
in relation to Rule 65, of the 1997 Rules of Civil Procedure praying
that respondent Commission on Elections' Resolution No.
2
9674 dated April 23, 2013 be nullified and set aside and that the
Commission on Elections be permanently enjoined from enforcing the
same Resolution, as well as prosecuting Social Weather Stations, Inc.
and Pulse Asia, Inc. for violating it or otherwise compelling
3
compliance with it.
Commission on Elections' (COMELEC) Resolution No. 9674 directed
Social Weather Stations, Inc. (SWS) and Pulse Asia, Inc. (Pulse
4
Asia), as well as "other survey firms of similar circumstance" to
submit to COMELEC the names of all commissioners and payors of
all surveys published from February 12, 2013 to April 23, 2013,
including those of their "subscribers."
5
SWS and Pulse Asia are social research and public polling firms.
Among their activities is the conduct of pre-election surveys.
6
As recounted by SWS and Pulse Asia, on February 15 to February
17, 2013, SWS conducted a pre-election survey on voters'
preferences for senatorial candidates. Thereafter, it published its
7
findings. The following question was asked in the survey:
Kung ang eleksyon ay gaganapin ngayon, sino ang pinakamalamang
ninyong iboboto bilang mga SENADOR ng PILIPINAS? Narito ang
listahan ng mga kandidato. Paki-shade o itiman po ang naaangkop na
oval katabi ng pangalan hg mga taong pinakamalamang ninyong
iboboto. Maaari po kayong pumili ng hanggang labindalawang (12)
kandidato.
(LIST OF CANDIDATES OMITTED)
If the elections were held today, whom would you most probably vote
for as SENATORS of the PHILIPPINES? Here is a list of candidates.
Please shade the oval beside the name of the persons you would
most likely vote for. You may choose up to twelve (12) candidates.
8
(LIST OF CANDIDATES OMITTED) (Emphasis in the original)
On March 20, 2013, Representative Tobias M. Tiangco (Tiangco),
Secretary-General of the United Nationalist Alliance (UNA), wrote
9
Atty. Esmeralda Ladra, Director of COMELEC's Law Department. In
his letter, Tiangco asked COMELEC to "compel [SWS] to either
comply with the directive in the Fair Election Act and COMELEC
Resolution No. 9[6]1[5] and give the names or identities of the
subscribers who paid for the [pre-election survey conducted from
February 15 to February 17, 2013], or be liable for the violation
11
thereof, an act constitutive of an election offense."

Tiangco recounted that on February 28, 2013, he wrote to SWS
requesting, among others, that he "be furnished the identity of
persons who paid for the [pre-election survey conducted from
February 15 to February 17, 2013] as well as those who subscribed to
12
it." Sometime in March 2013, SWS supposedly replied to Tiangco,
"furnishing [him] with some particulars about the survey but [without]
disclosing] the identity of the persons who commissioned or
13
subscribed to the survey."
Acting on Tiangco's letter and on the COMELEC Law Department's
14
recommendation, the COMELEC En Bane issued the Order dated
April 10, 2013 setting the matter for hearing on April 16, 2013. The
same Order directed SWS to submit its Comment within three (3)
15
days of receipt. On April 12, 2013, Pulse Asia received a letter from
COMELEC "requesting its representative to attend the COMELEC
16
hearing on 16 April 2013."
SWS and Pulse Asia recounted that during the hearing, COMELEC
Chairman Sixto S. Brillantes, Jr. (COMELEC Chairman Brillantes)
stated that the proceeding was merely a clarificatory hearing and not
17
a formal hearing or an investigation.
On April 23, 2013, COMELEC issued the assailed Resolution No.
9674. The entire dispositive portion of this Resolution reads:
WHEREFORE, premises considered, the Commis[s]ion RESOLVED,
as it hereby RESOLVES, to DIRECT the SWS, Pulse Asia and other
survey firms of similar circumstance to submit within three (3) days
from receipt of this Resolution the names of all commissioners and
payors of surveys published from February 12, 2013 to the date of the
promulgation of this Resolution for copying and verification by the
Commission. The submission shall include the names of all
"subscribers" of those published surveys. Such information/data shall
be for the exclusive and confidential use of the Commission;
RESOLVED FURTHER, that all surveys published subsequent to the
promulgation of this Resolution must be accompanied by all the
information required in Republic Act no. 9006, including the names of
commissioners, payors and subscribers.
This resolution shall take effect immediately after publication.
A violation of these rules shall constitu[t]e an election offense as
provided in Republic Act no. 9006, or the Fair Election
18
Act. (Emphasis in the original)
As basis for Resolution No. 9674, COMELEC cited Article IX-C,
19 20
Section 2(1) of the 1987 Constitution and Sections 5.1 to 5.3 of
Republic Act No. 9006, otherwise known as the Fair Election Act, as
21
implemented by COMELEC Resolution No. 9615.
SWS and Pulse Asia alleged that following the issuance of Resolution
No. 9674 and as of their filing before this court of the present Petition,
22
they had not been furnished copies of Resolution No. 9674. (They
emphasized that while a certified true copy of this Resolution was
attached to their Petition, this was a copy which they themselves
secured "for the purpose of complying.with the requirement that Rule
65 petitions must be accompanied by a certified true copy of the
23
assailed order or resolution[.]" )
24
In the letter dated April 30, 2013, SWS and Pulse Asia informed
COMELEC Chairman Brillantes that they had not received a copy of
Resolution No. 9674. They also articulated their view that Resolution
No. 9674 was tainted with irregularities, having been issued ultra
vires (i.e., in excess of what the Fair Election Act allows) and in
violation of the non-impairment of contracts clause of the Constitution.
They also expressed their intention to bring the matter before this
court on account of these supposed irregularities. Thus, they
requested that COMELEC defer or hold in abeyance Resolution No.
25
9674's enforcement.
26
On May 8, 2013, the COMELEC Law Department issued a Notice to
SWS (and also to Pulse Asia) directing it to furnish COMELEC with a
list of the names of all "commissioners, subscribers, and payors of
surveys published from February 12, 2013 until April 23,
27
2013." SWS was warned that failure to comply with the Notice shall
constitute an election offense punishable under the Omnibus Election
28
Code.
29
On July 1, 2013, COMELEC issued a Subpoena notifying SWS and
Pulse Asia that a Complaint "for violation of Section 264[,] par. 1 and
30 31
2 of the Omnibus Election Code in relation to R.A. 9006" was filed
against them. (This was docketed as E.O. Case No. 13-222). They
were also directed to appear and to submit their counter-affidavits and
32
other supporting documents at the hearing set on August 6, 2013.
 disclosure of the names of "subscribers" of election surveys;
SWS and Pulse Asia maintained that before receiving the Subpoena,
they were never informed that a criminal case had been filed against Second, whether the rights of petitioners to free speech will be
them. They added that they were never furnished copies of the curtailed by the requirement to submit the names of their subscribers;
33
relevant criminal Complaint.
Third, whether Resolution No. 9674, insofar as it compels petitioners
On July 26, 2013, petitioners Social Weather Stations, Inc. and Pulse to submit the names of their subscribers, violates the constitutional
34
Asia, Inc. filed the present Petition. They assail Resolution No. 9674 proscription against the impairment of contracts (Article II, Section
as having been issued ultra vires. They are of the position that 10);
Resolution No. 9674, in requiring the submission of information on
subscribers, is in excess of what the Fair Election Act Fourth, whether at the time petitioners were required by COMELEC to
35
requires. Likewise, they, assert that Resolution No. 9674 reveal the names of the subscribers to their election surveys,
transgresses the Fair Election Act in making itself executory Resolution No. 9674 was already in force and effect; and
36
immediately after publication. Moreover, they claim that it violates
37
the non-impairment of contracts clause of the Constitution, and was Lastly, whether COMELEC deprived petitioners of due process of law
enforced in violation of their right to due process (as they were when it:
charged with its violation despite not having been properly served with
38
copies of the complaint filed against them). Petitioners pray for the a) failed to provide them with a copy of Resolution No. 9674 and the
issuance of a temporary restraining order and/or writ of preliminary criminal complaint for an election offense; and
39
injunction in the interim.
b) refused to specify the election offense under which they were being
40
In this court's July 30, 2013 Resolution, COMELEC was required to prosecuted.
file a Comment on the Petition. In the same Resolution, this court
issued a temporary restraining order "enjoining the enforcement of We sustain the validity of Resolution No. 9674. The names of those
COMELEC Resolution No. 9674 with respect to submission of the who commission or pay for election surveys, including subscribers of
names of regular subscribers but not to the submission of (1) the survey firms, must be disclosed pursuant to Section 5.2(a) of the Fair
names of specific subscribers for the limited period of February 12, Election Act. This requirement is a valid regulation in the exercise of
2013 to April 23, 2013 who have paid a substantial amount of money police power and effects the constitutional policy of "guarantee[ing]
47
for access to survey results and privileged survey data; and (2) the equal access to opportunities for public service[.]" Section 5.2(a)'s
names of all commissioners and payors of surveys published within requirement of disclosing subscribers neither curtails petitioners' free
41
the same period." speech rights nor violates the constitutional proscription against the
impairment of contracts.
42
On October 10, 2013, COMELEC filed its Comment. On February
43
12, 2014, petitioners filed their Joint Reply. However, it is evident that Resolution No. 9674 was promulgated in
violation of the period set by the Fair Election Act. Petitioners were
44
In this court's February 18, 2014 Resolution, the present Petition also not served a copy of Resolution No. 9674 with which they were
was given due course, and the parties were directed to file their asked to comply. They were neither shown nor served copies of the
45
memoranda. Petitioners complied on May 16, 2014 and COMELEC criminal Complaint subject of E.O. Case No. 13-222. Petitioners' right
46
on June 25, 2014. to due process was, thus, violated.

For resolution are the following issues: Petitioners assail Resolution No. 9674's requirement of submission of
names of subscribers, including those who did not commission or pay
First, whether Resolution No. 9674 is invalid in that it requires the for a specific survey or cause its publication, for being ultra vires.
They maintain that the Fair Election Act "as it was written by
Congress covers only those who commission or pay for a particular
election survey, and requires disclosure of their names only when that
48
particular survey is published." From this, they add that COMELEC
exceeded its authority — "creating] an election offense where there
49
was none before" — in considering as an election offense any
violation of Resolution No. 9674.
COMELEC, for its part, insists on the "wide latitude of
50
discretion" granted to it in the performance of its constitutional duty
to "[e]nforce and administer all laws and regulations relative to the
51
conduct of an election[.]" It adds that "as the specialized
constitutional body charged with the enforcement and administration
52
of election laws," its contemporaneous construction of Section 5.2(a)
of the Fair Election Act is "entitled to great weight and
53
respect." Citing the supposed legislative intent of Section 5.2 as
54
"broaden[ing] the subject of disclosure," COMELEC claims that
Section 5.2(a) "draws no distinction between the direct payors and the
55
indirect payors of the survey." It adds that requiring the disclosure of
survey subscribers addresses the requirement of reporting election
expenditures by candidates and political parties, thereby helping
56
COMELEC check compliance with this requirement.
Section 5.2(a) of the Fair Election Act, read in a manner consistent
not only with its text but also with the purpose for which it, along with
the Fair Election Act, was adopted, sustains COMELEC's position.
Republic Act No. 9006 was adopted with the end in mind of
"guarantee[ing] or ensuring] equal opportunity for public
57
service" and to this end, stipulates mechanisms for the "supervision]
or regulation of] the enjoyment or utilization of all franchises or
permits for the operation of media of communication or
58
information[.]" Hence, its short title: Fair Election Act.
Situated within the constitutional order, the Fair Election Act provides
means to realize the policy articulated in Article II, Section 26 of the
1987 Constitution to "guarantee equal access to opportunities for
public service[.]" Article II, Section 26 models an understanding of
Philippine political and electoral reality. It is not merely hortatory or a
statement of value. Among others, it sums up an aversion to the
perpetuation of political power through electoral contests skewed in
favor of those with resources to dominate the deliberative space in
any media.
Apart from making real Article II, Section 26's constitutional policy, the
Fair Election Act represents the legislature's compliance with the
requirement of Article XIII, Section 1: "Congress . . . give[s] highest
priority to the enactment of measures that. . . reduce . . . political
inequalities ... by equitably diffusing wealth and political power for the
59
common good."
Moreover, the constitutional desire to "guarantee equal access to
60
opportunities for public service" is the same intent that animates the
Constitution's investiture in COMELEC of the power to "supervise or
regulate the enjoyment or utilization of all franchises or permits for the
operation of transportation and other public utilities, media of
communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency,
or instrumentality thereof, including any government-owned or
61
controlled corporation or its subsidiary."
Specific provisions in the Fair Election Act regulate the means
through which candidates for elective public office, as well as political
parties and groups participating in the party-list system, are able to
make themselves known to voters, the same means through which
they earn votes.
62
Section 3 permits the use of lawful election propaganda. Section 4
regulates published or printed, and broadcast election
63
propaganda. Section 6 governs access to media time and
64
space. Sections 7 and 8 provide for COMELEC's competencies (i.e.,
affirmative action, and the so-called "COMELEC Space" and
"COMELEC Time") that enable it to equalize candidates' exposure to
65
voters. Section 9 regulates venues for the posting of campaign
66
materials. Section 10 provides for parties' and candidates' right to
67
reply. Section 11 requires media outlets to make available the use of
68
their facilities for election propaganda at discounted rates.
The Fair Election Act also governs published surveys during
elections.
Section 5.1 defines election surveys-as "the measurement of opinions
and perceptions of the voters as regards a candidate's popularity,
qualifications, platforms or a matter of public discussion in relation to
the election, including voters' preference for candidates or publicly
discussed issues during the campaign period[.]" Sections 5.2 and 5.3
provide regulations that facilitate transparency with respect to ' means to guarantee equal access to the deliberative forums essential
69
election surveys. Section 5.4 is no longer in effect, having been to win an elective public office. Any reading of Section 5 and of its
declared unconstitutional in this court's May 5, 2001 Decision individual components, such as Section 5.2(a), cannot be divorced
in Social Weather Stations and Kamahalan Publishing Corp. v. from this purpose.
70 71
COMELEC. Section 5.5 pertains to exit polls.
The inclusion of election surveys in the list of items regulated by the
Section 5.2 enumerates the information that a person publishing an Fair Election Act is a recognition that election surveys are not a mere
election survey must publish along with the survey itself: descriptive aggregation of data. Publishing surveys are a means to
shape the preference of voters, inform the strategy of campaign
5.2 During the election period, any person, natural as well as juridical, machineries, and ultimately, affect the outcome of elections. Election
candidate or organization who publishes a survey must likewise surveys have a similar nature as election propaganda. They are
publish the following information:chanroblesvirtuallawlibrary expensive, normally paid for by those interested in the outcome of
elections, and have tremendous consequences on election results.
a. The name of the person, candidate, party or. organization
who commissioned or paid for the survey; II
b. The name of the person, polling firm or survey organization
who conducted the survey; Views vary on the precise extent to which surveys or "polls" shape
c. The period during which the survey was conducted, the voter preferences, if at all.
methodology used, including the number of individual
respondents and the areas from which they were selected, Election surveys have been critiqued for amplifying the notion of an
72
and the specific questions asked; election as a "horse race" and for reducing elections to the lowest
d. The margin of error of the survey; common denominator of percentage points or a candidate's erstwhile
e. For each question for which the margin of error is greater share in the vote market rather than focusing on issues, principles,
than that reported under paragraph (d), the margin of error for programs, and platforms.
that question; and
f. A mailing address and telephone number, indicating it as an Several possible, albeit conflicting, effects of surveys on voter
address or telephone number at which the sponsor can be behavior have been postulated:
contacted to obtain a written report regarding the survey in
accordance with Subsection 5.3. (Emphasis supplied) First, there is the bandwagon effect where "electors rally to support
73
the candidate leading in the polls." This "assumes that knowledge of
a popular 'tide' will likely change voting intentions in [favor] of the
Section 5.3 facilitates the inspection, copying, and verification not only frontrunner, that many electors feel more comfortable supporting a
of an election survey but also of the raw data used as bases for its popular choice or that people accept the perceived collective wisdom
74
of others as being enough reason for supporting a candidate."
conclusions:
Second, there is the underdog effect where "electors rally to support
5.3 The survey together with raw data gathered to support its 75
the candidate trailing in the polls." This shift can be motivated by
conclusions shall be available for inspection, copying and verification 76
sympathy for the perceived underdog.
by the COMELEC or by a registered political party or a bona fide
candidate, or by any COMELEC-accredited citizen's arm. A
Third, there is the motivating effect where "individuals who had not
reasonable fee sufficient to cover the costs of inspection, copying and 77
intended to vote are persuaded to do so," having been alerted to the
verification may be charged. 78
fact of an election's imminence.
As with all the other provisions of the Fair Election Act, Section 5 is a
Fourth, there is also the demotivating effect where "voters abstain behaviors and attitudes are more popular than they actually are. In
79
from voting out of certainty that their candidate or party will win[.]" the political domain, one mechanism underlying the false consensus
effect is wishful thinking - people gaining utility from thinking their
86
Fifth, there are reports of a behavior known as strategic candidate is ahead or their opinions are popular.
80
voting where "voting is influenced by the chances of winning[.]"
The bandwagon effect induced by election surveys assumes even
Lastly, there is also the theory of a free-will effect where "voters cast greater significance in considering the health of a democracy.
81
their ballots to prove the polls wrong[.]"
Integral to our appreciation of democracy is the recognition that
Election surveys published during election periods create the "politics democracy is fundamentally deliberative. It is rooted in the exchange
82
of expectations." Voters act in accordance with what is perceived to and dialogue of ideas. Accordingly, free expression, not least of all
be an existing or emerging state of affairs with respect to how from the minority and from those who do not conform, i.e., those who
candidates are faring. dissent and criticize, is indispensable:

Of the six (6) effects, the bandwagon effect has a particular
resonance and has been of concern. Surveys, or opinion polls, "by
directly influencing individual-level support . . . , can be self-fulfilling
83
prophecies and produce opinion cascades." "[A] poll's prediction
may come to pass not only because it measures public opinion but
84
also because it may influence public opinion."
The bandwagon effect is of particular concern because of the
observed human tendency to conform. Three (3) mechanisms through
which survey results may induce conformity have been posited:
(1) normative social influence, or people's desire to adopt the majority
position in order to feel liked and accepted or believe they are on the
winning team;
(2) informational social influence, or people learning from the 'wisdom
of crowds' via social proof because they 'believe that others'
interpretation of an ambiguous situation is more accurate . . . and will
help [them] choose an appropriate course of action'; and
(3) people resolving cognitive dissonance by switching to the side
85
they infer is going to win based on the poll. cralawlawlibrary
Likewise, it has been argued that the bandwagon effect is but the
obverse of the so-called false-consensus effect or false-consensus
bias:
The bandwagon effect, a form of conformity, is the mirror image of the
false consensus effect, where people misperceive that their own
Proponents of the political theory on "deliberative democracy" submit
that "substantial, open, [and] ethical dialogue is a critical, and indeed
defining, feature of a good polity." This theory may be considered
broad, but it definitely "includes [a] collective decision making with the
participation of all who will be affected by the decision." It anchors on
the principle that the cornerstone of every democracy is that
sovereignty resides in the people. To ensure order in running the
state's affairs, sovereign powers were delegated and individuals
would be elected or nominated in key government positions to
represent the people. On this note, the theory on deliberative
democracy may evolve to the right of the people to make government
accountable. Necessarily, this includes the right of the people to
criticize acts made pursuant to governmental functions.
Speech that promotes dialogue on public affairs, or airs out
grievances and political discontent, should thus be protected and
encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to
discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss
freely supposed grievances and proposed remedies."
In this jurisdiction, this court held that "[t]he interest of society and the
maintenance of good government demand a full discussion of public
affairs." This court has, thus, adopted the principle that "debate on
public issues should be uninhibited, robust, and wide open . . .
[including even] unpleasantly sharp attacks on government and public
87
officials."cralawlawlibrary
88
However, "conformity pressures can suppress minority opinion." The
bandwagon effect conjures images of an impregnable majority,
thereby tending to push farther toward the peripheries those who are
already marginalized. Worse, the bandwagon effect foments the
illusion of a homogenous monolith denying the very existence of
those in the minority. This undermines the "normative conceptions of
89
democracy" substituting the democratic dialogue with acquiescence
to perceived or projected orthodoxy.
Surveys, far from being a passive "snapshot of many viewpoints held
90
by a segment of the population at a given time," can warp existing
public opinion and can mould public opinion. They are constitutive.
Published election surveys offer valuable insight into public opinion
not just because they represent it but more so because they also tend
to make it.
Appreciating this tendency to both entrench and marginalize is of
acute relevance in the context of Philippine political reality. This is the
same reality that our policymakers, primarily the framers of the
Constitution, have seen fit to address.
III
The constitutional dictum to "guarantee equal access to opportunities
91
for public service" and (even more specifically and explicitly) to
92
"prohibit political dynasties" does not exist in a vacuum.
Politics in the Philippines has been criticized as "a lucrative means of
93
self-aggrandizement." Ours is an exclusive system that perpetuates
power and provides sanctuary to those who have already secured
their place. Traditional Filipino politics connotes elite families that, with
the state, are "engaged in a reciprocal relationship that constantly
94
defines and redefines both." As recounted by Alfred McCoy, this
reciprocal relationship, typified by rent-seeking (i.e., "taking advantage
95
of their access to state privileges to expand proprietary wealth" ), is a
vicious cycle propagated for as long as the Philippines has been a
republic: "The emergence of the Republic as a weak postcolonial
state augmented the power of rent-seeking political families — a
96
development that further weakened the state's own resources."
The Philippines, as it emerged in the wake of Ferdinand Marcos'
presidency and the adoption of the 1987 Constitution, saw the
97
"celebritification" of political office. On the legislature and studying
emerging contrasts in the composition of its two chambers — the
Senate and the House of Representatives — it has been noted:
The old political families, however are not as strong in the Senate as
they are in the House. This could be read, if not as a total repudiation
by voters of family power, then at least as an attempt by them to tap
other sources of national leadership. Celebrities and military and
police officers have emerged as alternatives to traditional politicians. It
could be that these new men and women have captured the popular
imagination or that they are more in tune with the public pulse. But
their emergence could very well be seen as an indication of the
paucity of choices: Political parties, for one, have not succeeded in
98
proffering a wider range of options to an electorate weary of trapos.
This celebritification nurtures misleading notions of an enhanced or
healthier democracy, one that opens avenues to a crop of political
leaders not belonging to oligarchic families. Viewed critically however,
this is nothing more than a pipe dream. New elites now share the
political stage with the old. The tension between two contrary
tendencies actually serves to preserve the status quo of elitism — an
expanded elitism perhaps, but elitism no less. To evoke a truism, "the
more things change, the more they stay the same":
But the "celebritification" of the Senate can also be interpreted as the
democratization of an exclusive body once reserved only for the very
rich, the politically experienced, and the intellectually brilliant. In a
sense, the bar of entry has been lowered, and anyone with national
renown can contest a seat in a chamber once famous for sharp
debates and polysyllabic peroration.
The main criterion for a Senate seat is now name recall. This is where
celebrities have the edge even over older political families with
bankable names. . . .
. . . .
The diminishing clout of old families in the Senate—and their
continued dominance in the House—shows the push and pull of two
contrary tendencies. The first tendency is toward the new: The
importance of name recall in national elections taking place in a
media-inundated environment makes it easier for movie and media
personalities, and harder for old-style politicians, to be elected. The
second tendency is veering toward the old: At the district level, trapo-
style patronage and machine politics remain deeply entrenched,
99
giving political families the edge in elections."
Thus, where once there was elitism solely along lines of kinship —
Alfred McCoy's so-called "anarchy of families" — now there is also
elitism demarcated by name recall, populist projection, and media
exposure, arguably, an "anarchy of celebrities."
Certainly, it is not the business of this court to engage in its own
determination of the wisdom of policy. Nevertheless, having to
grapple with the tasks of adjudication and interpretation, it has
become necessary to bring to light the intent that underlies the
disputed statutory provision, as well as the constitutional regime and
social context, in which this provision is situated.
To reiterate, the inclusion of published election surveys in a statute
that regulates election propaganda and other means through which
candidates may shape voter preferences is itself telling of the
recognition that published election surveys, too, may influence voter
preferences. This inclusion is similarly telling of a recognition that, left
unregulated, election surveys can undermine the purposes of
ensuring "fair" elections. These recognitions are embedded in the Fair
Election Act; they are not judicial constructs. In adjudicating with
these' as bases, this court is merely adhering to the legislative
imperative.
IV
It is necessary that the Fair Election Act be appreciated for what it is:
a mechanism for ensuring equality. The Fair Election Act is a means
to effect the "necessary condition" to a genuine democratic dialogue,
to realizing a deliberative democracy. The concept of this "necessary
condition" was previously considered by this court in Diocese of
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Bacolod v. COMELEC:
In his seminal work, Repressive Tolerance, philosopher and social
theorist Herbert Marcuse recognized how institutionalized inequality
exists as a background limitation, rendering freedoms exercised
within such limitation as merely "protecting] the already established
machinery of discrimination." In his view, any improvement "in the
normal course of events" within an unequal society, without
subversion, only strengthens existing interests of those in power and
control.
In other words, abstract guarantees of fundamental rights like
freedom of expression may become meaningless if not taken in a real
context. This tendency to tackle rights in the abstract compromises
liberties. In his words:
Liberty is selfi-determination, autonomy—this is almost a tautology,
but a tautology which results from a whole series of synthetic
judgments. It stipulates the ability to determine one's own life: to be
able to determine what to do and what not to do, what to suffer and
what not. But the subject of this autonomy is never the contingent,
private individual as that which he actually is or happens to be; it is
rather the individual as a human being who is capable of being free
with the others. And the problem of making possible such a harmony
between every individual liberty and the other is not that of finding a
compromise between competitors, or between freedom and law,
between general and individual interest, common and private welfare
in an established society, but of creating the society in which man is
no longer enslaved by institutions which vitiate self-determination from
the beginning. In other words, freedom is still to be created even for
the freest of the existing societies.
Marcuse suggests that the democratic argument — with all opinions
presented to and deliberated by the people — "implies a necessary
condition, namely, that the people must be capable of deliberating
and choosing on the basis of knowledge, that they must have access
to authentic information, and that, on this basis, their evaluation must
be the result of autonomous thought'." He submits that "[different
opinions and 'philosophies' can no longer compete peacefully for
adherence and persuasion on rational grounds: the 'marketplace of
ideas' is organized and delimited by those who determine the national
and the individual interest."
A slant toward left manifests from his belief that "there is a 'natural
right' of resistance for oppressed and overpowered minorities to use
extralegal means if the legal ones have proved to be inadequate."
Marcuse, thus, stands for an equality that breaks away and
transcends from established hierarchies, power structures, and
indoctrinations. The tolerance of libertarian society he refers to as
101
"repressive tolerance."

What is involved here is petitioners' freedom of speech and of
expression, that is, to publish their findings. More specifically, what is
involved here is their right to political speech, that which "refers to
speech 'both intended and received as a contribution to public
deliberation about some issue,' 'foster[ing] informed and civic-minded
102
deliberation."
The nature of the speech involved, as well as the Fair Election Act's
purpose of ensuring political equality, calls into operation the equality-
based approach to weighing liberty to express vis-a-vis equality of
103
opportunities. As explained in Diocese of Bacolod:
In an equality-based approach, "politically disadvantaged speech
prevails over regulation[,] but regulation promoting political equality
prevails over speech." This view allows the government leeway to
redistribute or equalize 'speaking power,' such as protecting, even
implicitly subsidizing, unpopular or dissenting voices often
systematically subdued within society's ideological ladder. This view
acknowledges that there are dominant political actors who, through
authority, power, resources, identity, or status, have capabilities that
may drown out the messages of others. This is especially true in a
developing or emerging economy that is part of the majoritarian world
like ours.
. . . unconstitutional. Such regulation is inconsistent with the guarantee of
The scope of the guarantee of free expression takes into
consideration the constitutional respect for human potentiality and the
effect of speech. It valorizes the ability of human beings to express
and their necessity to relate. On the other hand, a complete
guarantee must also take into consideration the effects it will have in a
deliberative democracy. Skewed distribution of resources as well as
the cultural hegemony of the majority may have the effect of drowning
out the speech and the messages of those in the minority. In a sense,
social inequality does have its effect on the exercise and effect of the
guarantee of free speech. Those who have more will have better
access to media that reaches a wider audience than those who have
less. Those who espouse the more popular ideas will have better
reception than the subversive and the dissenters of society. To be
really heard and understood, the marginalized view normally
undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker
and the content of his or her expression. This view, thus, restricts
laws or regulation that allows public officials to make judgments of the
value of such viewpoint or message content. This should still be the
principal approach.
However, the requirements of the Constitution regarding equality in
opportunity must provide limits to some expression during electoral
104
campaigns.
The required judicial temperament in appraising speech in the context
of electoral campaigns which is principally designed to endorse a
candidate, both by candidates and / or political parties, on the one
hand, and private citizens, on the other, has thus been articulated:
Thus clearly, regulation of speech in the context of electoral
campaigns made by candidates or the members of their political
parties or their political parties may be regulated as to time, place,
and manner. This is the effect of our rulings in Osmeña v.
COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by
persons who are not candidates or who do not speak as members of
a political party which are, taken as a whole, principally advocacies of
a social issue that the public must consider during elections is
according the fullest possible range of opinions coming from the
electorate including those that can catalyze candid, uninhibited, and
robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a
private citizen which will not amount to an election paraphernalia to be
validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if
it reaches into speech of persons who are not candidates or who do
not speak as members of a political party if they are not candidates,
only if what is regulated is declarative speech that, taken as a whole,
has for its principal object the endorsement of a candidate only. The
regulation (a) should be provided by law, (b) reasonable, (c) narrowly
tailored to meet the objective of enhancing the opportunity of all
candidates to be heard and considering the primacy of the guarantee
of free expression, and (d) demonstrably the least restrictive means to
achieve that object. The regulation must only be with respect to the
time, place, and manner of the rendition of the message. In no
situation may the speech be prohibited or censored on the basis of its
content. For this purpose, it will not matter whether the speech is
105
made with or on private property. [Emphasis in the original]
V "those who have financed, one way or another, the [published]
Concededly, what is involved here is not election propaganda per se.
Election surveys, on their face, do not state or allude to preferred
candidates. As a means, election surveys are ambivalent. To an
academician, they are an aggrupation of data. To a journalist, they
are matters for reportage. To a historian, they form part of a chronicle.
Election surveys thus become unambiguous only when viewed in
relation to the end for which they are employed. To those whose end
is to get a candidate elected, election surveys, when limited to their
own private consumption, are a means to formulate strategy. When
published, however, the tendency to shape voter preferences comes
into play. In this respect, published election surveys partake of the
nature of election propaganda. It is then declarative speech in the
context of an electoral campaign properly subject to regulation.
Hence, Section 5.2 of the Fair Election Act's regulation
of published surveys.
We thus proceed to evaluate Resolution No. 9674's requirement of
disclosing the names of subscribers to election surveys in light of the
requisites for valid regulation of declarative speech by private entities
in the context of an election campaign:
First, the text of Section 5.2(a) of the Fair Election Act supports the
inclusion of subscribers among those persons who "paid for the
106
survey[.]" Thus, Resolution No. 9674 is a regulation finding basis in
statute.
COMELEC correctly points out that in Section 5.2(a) of the Fair
Election Act, those who "commissioned" and those who "paid for" the
107
published survey are separated by the disjunctive term "or." This
disassociates those who "commissioned" from those who "paid for"
108
and identifies them as alternatives to each other. Section 5.2(a)
thus requires the disclosure of two (2) classes of persons: "[first,]
those who commissioned or sponsored the survey; and [second,]
109
those who paid for the survey."
The second class makes no distinction between those who pay for a
specific survey and those who pay for election surveys in general.
Indeed, subscribers do not escape the burden of paying for the
component articles comprising a subscription. They may pay for them
in aggregate, but they pay for them just the same. From the text of
Section 5.2(a), the legislative intent or regulatory concern is clear:
110
survey" must be disclosed.
Second, not only an important or substantial state interest but even a
compelling one reasonably grounds Resolution No. 9674's inclusion
of subscribers to election surveys. Thus, regardless of whether an
intermediate or a strict standard is used, Resolution No. 9674 passes
scrutiny.
It is settled that constitutionally declared principles are a compelling
state interest:
Compelling governmental interest would include constitutionally
declared principles. We have held, for example, that "the welfare of
children and the State's mandate to protect and care for them,
as parens patriae, constitute a substantial and compelling government
111
interest in regulating . . . utterances in TV broadcast."
Here, we have established that the regulation of election surveys
effects the constitutional policy, articulated in Article II, Section 26,
and reiterated and affirmed in Article IX-C, Section 4 and Article XIII,
Section 26 of the 1987 Constitution, of "guarantee[ing] equal access
112
to opportunities for public service[.]"
Resolution No. 9674 addresses the reality that an election survey is
formative as it is descriptive. It can be a means to shape the
preference of voters and, thus, the outcome of elections. In the hands
of those whose end is to get a candidate elected, it is a means for
such end and partakes of the nature of election propaganda.
Accordingly, the imperative of "fair" elections impels their regulation.
Lastly, Resolution No. 9674 is "narrowly tailored to meet the objective
of enhancing the opportunity of all candidates to be heard and
113
considering the primacy of the guarantee of free expression" and is
114
"demonstrably the least restrictive means to achieve that object."
While it does regulate expression (i.e., petitioners' publication of
election surveys), it does not go so far as to suppress desired
expression. There is neither prohibition nor censorship specifically Second, statutory construction cannot lend itself to pedantic rigor that
aimed at election surveys. The freedom to publish election surveys foments absurdity. The dangers of inordinate insistence on literal
remains. All Resolution No. 9674 does is articulate a regulation as interpretation are commonsensical and need not be belabored. These
regards the manner of publication, that is, that the disclosure of those dangers are by no means endemic to legal interpretation. Even in
who commissioned and/or paid for, including those subscribed to, everyday conversations, misplaced literal interpretations are fodder
published election surveys must be made. cralawlawlibrary for humor. A fixation on technical rules of grammar is no less
innocuous. A pompously doctrinaire' approach to text can stifle, rather
VI than facilitate, the legislative wisdom that unbridled textualism
118
purports to bolster.
Petitioners harp on what they claim to be Section 5.2(a)'s "plain
meaning" and assert that there is no room to entertain COMELEC's Third, the assumption that there is, in all cases, a universal plain
115
construction of Section 5.2(a). language is erroneous. In reality, universality and uniformity of
meaning is a rarity. A contrary belief wrongly assumes that language
It has been said that "[a] cardinal rule in statutory construction is that is static.
when the law is clear and free from any doubt or ambiguity, there is
no room for construction or interpretation. There is only room for The more appropriate and more effective approach is, thus, holistic
116
application." rather than parochial: to consider context and the interplay of the
historical, the contemporary, and even the envisioned. Judicial
Clarifications, however, are in order. interpretation entails the convergence of social realities and social
ideals. The latter are meant to be effected by the legal apparatus,
First, verba legis or the so-called plain-meaning rule applies only chief of which is the bedrock of the prevailing legal order: the
when the law is completely clear, such that there is absolutely no Constitution. Indeed, the word in the vernacular that describes the
room for interpretation. Its application is premised on a situation Constitution — saligan — demonstrates this imperative of
where the words of the legislature are clear that its intention, insofar constitutional primacy.
as the facts of a case demand from the point of view of a
contemporary interpretative community, is neither vague nor Thus, we refuse to read Section 5.2(a) of the Fair Election Act in
ambiguous. This is a matter of judicial appreciation. It cannot apply isolation. Here, we consider not an abstruse provision but a stipulation
merely on a party's contention of supposed clarity and lack of room for that is part of the whole, i.e., the statute of which it is a part, that is
interpretation. aimed at realizing the ideal of fair elections. We consider not a
cloistered provision but a norm that should have a present
This is descriptive of the situation here. authoritative effect to achieve the ideals of those who currently read,
depend on, and demand fealty from the Constitution. cralawlawlibrary

Interestingly, both COMELEC and petitioners appeal to what they

(respectively) construe to be plainly evident from Section 5.2(a)'s text: VII
on the part of COMELEC, that the use of the words "paid for" evinces
no distinction between direct purchasers and those who purchase via We note with favor COMELEC's emphasis on the "wide latitude of
119
subscription schemes; and, on the part of petitioners, that Section discretion" granted to it in the performance of its constitutional duty
5.2(a)'s desistance from actually using the word "subscriber" means to "[e]nforce and administer all laws arid regulations relative to the
117 120
that subscribers are beyond its contemplation. The variance in the conduct of an election[.]" But this is with the caution that it does not
121
parties' positions, considering that they are both banking on what they reach "grave abuse of discretion[.]
claim to be the Fair Election Act's plain meaning, is the best evidence
122
of an extant ambiguity. Alliance for Nationalism and Democracy v. COMELEC had the
following to say regarding factual findings made by COMELEC, an
independent constitutional organ:
[T]he rule that factual findings of administrative bodies will not be
disturbed by courts of justice except when there is absolutely no
evidence or no substantial evidence in support of such findings should
be applied with greater force when it concerns the COMELEC, as the
framers of the Constitution intended to place the COMELEC—created
and explicitly made independent by the Constitution itself—on a level
123
higher than statutory administrative organs.
Proceeding from this, we emphasize that this norm of deference
applies not only to factual findings. This applies with equal force to
independent constitutional organs' general exercise of their functions.
The constitutional placing of independent constitutional organs on a
plane higher than those of administrative agencies created only by
statute is not restricted to competence in fact-finding. It extends to all
purposes for which the Constitution created them.
We reiterate, however, that our recognition of this deferential norm is
made with caution. This rule of deference does not give independent
constitutional organs, like COMELEC, license to gravely abuse their
discretion. With respect to rule-making, while the wisdom of
"subordinate legislation" or the rule-making power of agencies tasked
with the administration of government is acknowledged, rule-making
agencies are not given unfettered power to promulgate rules. As
124
explained in Gerochi v. Department of Energy, it is imperative that
subordinate legislation "be germane to the objects and purposes of
the law and that the regulation be not in contradiction to, but in
125
conformity with, the standards prescribed by the law." A regulation
that purports to effect a statute but goes beyond the bounds of that
statute is ultra vires; it is in excess of the rule-making agency's
competence. Thus, it is void and ineffectual.
This is not the case here. There is no grave abuse of discretion.
Resolution No. 9674 serves a constitutional purpose and works well
within the bounds of the Constitution and of statute. cralawlawlibrary
VIII
Petitioners argue that Resolution No. 9674 constitutes a prior restraint
in that:
Resolution No. 9674 makes it an election offense for a survey firm not
to disclose the names of subscribers who have paid substantial
amounts to them, even if ihe survey portions provided to them have
not been published. 1'his requirement is unduly burdensome and
onerous and constitutes a prior restraint on the right of survey firms to
gather information on public opinion and disseminate it to the
citizenry.
. . . If Resolution No. 9674 is allowed to stand, survey firms will no
longer be able to operate because they will not have enough clients
and will not be financially sustainable. COMELEC will finally be able
to do indirectly what it could not do directly, which is to prohibit the
conduct of election surveys and the publication or dissemination of
126
the results to the public.
Petitioners' assertions are erroneous.
127
Chavez v. Gonzales explained the concept of prior restraint as
follows:
Prior restraint refers to official governmental restrictions on the press
or other forms of expression in advance of actual publication or
dissemination. Freedom from prior restraint is largely freedom from
government censorship of publications, whatever the form of
censorship, and regardless of whether it is wielded by the executive,
legislative or judicial branch of the government. Thus, it precludes
governmental acts that required approval of a proposal to publish;
licensing or permits as prerequisites to publication including the
payment of license taxes for the privilege to publish; and even
injunctions against publication. Even the closure of the business and
printing offices of certain newspapers, resulting in the discontinuation
of their printing and publication, are deemed as previous restraint or
censorship. Any law or official that requires some form of permission
to be had before publication can be made, commits an infringement of
the constitutional right, and remedy can be had at the
128
courts. (Emphasis supplied, citations omitted)
The very definition of "prior restraint" negates petitioner's assertions.
Resolution No. 9674 poses no prohibition or censorship specifically
aimed at election surveys. Apart from regulating the manner of
publication, petitioners remain free to publish election surveys.
COMELEC correctly points out that "[t]he disclosure requirement kicks
129
in only upon, not prior to, publication."

In any case, the requirement of disclosing subscribers is neither
unduly burdensome nor onerous. Prior to the promulgation of
Resolution No. 9674, survey firms were already understood to be
bound by the requirement to disclose those who commissioned or
paid for published election surveys. Petitioners have been complying
with this without incident since the Fair Election Act was enacted in
2001. After more than a decade of compliance, it is odd for petitioners
to suddenly assail the disclosure requirement as unduly burdensome
or onerous.
Petitioners' claim that "[i]f Resolution No. 9674 is allowed to stand,
survey firms will no longer be able to operate because they will not
130
have enough clients and will not be financially sustainable" is too
speculative and conjectural to warrant our consideration. The
assumption is that persons who want to avail of election survey
results will automatically be dissuaded from doing so when there is a
requirement of submission of their names during the campaign period.
This is neither self-evident, nor a presumption that is susceptible to
judicial notice. There is no evidence to establish a causal connection.
Petitioners' free speech rights must be weighed in relation to the Fair
Election Act's purpose of ensuring political equality and, therefore, the
speech of others who want to participate unencumbered in our
political spaces. On one hand, there are petitioners' right to publish
and publications which are attended by the interests of those who can
employ published data to their partisan ends. On the other, there is
regulation that may effect equality and, thus, strengthen the capacity
of those on society's margins or those who grope for resources to
engage in the democratic dialogue. The latter fosters the ideals of
deliberative democracy. It does not trump the former; rather, it
provides the environment where the survey group's free speech rights
should reside.cralawlawlibrary
IX
Petitioners argue that Resolution No. 9674 violates Article III, Section
131
10 of the 1987 Constitution. They claim that it "unduly interferes
with [their] existing contracts . . . by forcing [them] to disclose
132
information that, under the contracts, is confidential or privileged."
For its part, COMELEC argues that "[t]he non-impairment clause of
the Constitution must yield to the loftier purposes sought to be
133
achieved by the government." It adds that "[petitioners' existing
contracts with third parties must be understood to have been made in
reference to the possible exercise of the COMELEC's regulatory
134
powers."
It is settled that "the constitutional guaranty of non-impairment... is
limited by the exercise of the police power of the State, in the interest
135
of public health, safety, morals and general welfare." "It is a basic
rule in contracts that the law is deemed written into the contract
136
between the parties." The incorporation of regulations into contracts
137
is "a postulate of the police power of the State."
The relation of the state's police power to the principle of non-
impairment of contracts was thoroughly explained in Ortigas and Co.
138
V. Feati Bank:
[W]hile non-impairment of contracts is constitutionally guaranteed, the
rule is not absolute, since it has to be reconciled with the legitimate
exercise of police power, i.e., "the power to prescribe regulations to
promote the health, morals, peace, education, good order or safety
and general welfare of the people." Invariably described as "the most
essential, insistent, and illimitable of powers" and "in a sense, the
greatest and most powerful attribute of government," the exercise of
the power may be judicially inquired into and corrected only if it is
capricious, whimsical, unjust or unreasonable, there having been a
denial of due process or a violation of any other applicable
constitutional guarantee. As this Court held through Justice Jose P.
Bengzon in Philippine Long Distance Company vs. City of Davao, et
al. police power "is elastic and must be responsive to various social
conditions; it is not confined within narrow circumscriptions of
precedents resting on past conditions; it must follow the legal
progress of a democratic way of life." We were even more emphatic
in Vda. de Genuino vs. The Court of Agrarian Relations, et al, when
We declared: "We do not see why public welfare when clashing with
the individual right to property should not be made to prevail through
139
the state's exercise of its police power." (Citations omitted)
This case does not involve a "capricious, whimsical, unjust or
140
unreasonable" regulation. We have demonstrated that not only an
important or substantial state interest, but even a compelling one
anchors Resolution No. 9674's requirement of disclosing subscribers
to election surveys. It effects the constitutional policy of
"guarantee[ing] equal access to opportunities for public
 141
service" and is impelled by the imperative of "fair" elections.
As a valid exercise of COMELEC's regulatory powers, Resolution No.
9674 is correctly deemed written into petitioners' existing contracts.
Parenthetically, the obligations of agreements manifested in the
concept of contracts are creations of law. This right to demand
performance not only involves its requisites, privileges, and regulation
in the Civil Code or special laws, but is also subject to the
Constitution. The expectations inherent in a contract may be
compelling, but so are the normative frameworks demanded by law
and the provisions of the Constitution.
cralawlawlibrary
X Violation of this Act and the rules and regulations of the COMELEC
Petitioners point out that Section 13 of the Fair Election Act provides
that "[r]ules and regulations promulgated by the COMELEC under and
by authority of this Section shall take effect on the seventh day after
their publication in at least two (2) daily newspapers of general
circulation." In contrast, Resolution No. 9674 provides that it "shall
142
take effect immediately after publication." Thus, they assert that
Resolution No. 9674's effectivity clause is invalid. From this, they
argue that Resolution No. 9674 has not taken effect and cannot be
143
enforced against them or against other persons.
COMELEC counters that Section 13 of the Fair Election Act's
provision that rules shall take effect "on the seventh day after their
publication" applies only to Resolution No. 9615, the Implementing
Rules and Regulations (IRR) of the Fair Election Act, and not to
144
Resolution No. 9674, which "merely enforces Section 26 of
145
Resolution No. 9615."
Noting that Resolution No. 9674 was nevertheless published in the
Philippine Daily Inquirer and the Philippine Star both on April 25,
2013, COMELEC adds that, in any case, "the lapse of the seven-day
period from the date of its publication has rendered the instant issue
146
moot and academic."
It is COMELEC which is in error on this score. Section 13 of the Fair
Election Act reads:
Section 13. Authority of the COMELEC to Promulgate Rules; Election
Offenses. - The COMELEC shall promulgate and furnish all political
parties and candidates and the mass media entities the rules and
regulations for the implementation of this Act, consistent with the
criteria established in Article IX-C, Section 4 of the Constitution and
Section 86 of the Omnibus Election Code (Batas Pambansa Bldg.
881).
Rules and regulations promulgated by the COMELEC under and by
authority of this Section shall take effect on the seventh day after their
publication in at least two (2) daily newspapers of general circulation.
Prior to effectivity of said rules and regulations, no political
advertisement or propaganda for or against any candidate or political
party shall be published or broadcast through mass media.
issued to implement this Act shall be an election offense punishable
under the first and second paragraphs of Section 264 of the Omnibus
Election Code (Batas Pambansa Bldg. 881). (Emphasis supplied)
Resolution No. 9615 is denominated "Rules and Regulations
Implementing Republic Act No. 9006, otherwise known as the 'Fair
Election Act', in connection to [sic] the 13 May 2013 National and
Local Elections, and Subsequent Elections[.]"
The only conceivable reason that would lead COMELEC to the
conclusion that it is only Resolution No. 9615 (and not the assailed
Resolution No. 9674) that needs to comply with the requirement of
Section 13 of the Fair Election Act is Section 13's use of the phrase
"rules and regulations for the implementation of this Act[.]" That is,
since Resolution No. 9615 is the Resolution which, by name, is called
the "Rules and Regulations Implementing Republic Act No. 9006,"
COMELEC seems to think that other rules named differently need not
comply.
It is an error to insist on this literal reasoning.
Section 13 applies to all rules and regulations implementing the Fair
Election Act, regardless of how they are denominated or called.
COMELEC's further reasoning that what Resolution No. 9674 intends
to implement is Resolution No. 9615 and not the Fair Election Act
itself is nothing but a circuitous denial of Resolution No. 9674's true
nature. COMELEC's reasoning is its own admission that the assailed
Resolution supplements what the Implementing Rules and
Regulations of the Fair Election Act provides. Ultimately, Resolution
No. 9674 also implements the Fair Election Act and must, thus,
comply with the requirements of its Section 13.
Accordingly, Resolution No. 9674 could not have become effective as
soon as it was published in the Philippine Daily Inquirer and the
Philippine Star on April 25, 2013. Taking into consideration the seven-
day period required by Section 13, the soonest that it could have
come into effect was on May 2, 2013.
This notwithstanding, petitioners were not bound to comply with the
requirement "to submit within three (3) days from receipt of this
Resolution the names of all commissioners and payors of surveys
published from February 12, 2013 to the date of the promulgation of
147
this Resolution[.]" As shall be discussed, COMELEC's (continuing)
failure to serve copies of Resolution No. 9674 on petitioners
prevented this three-day period from even commencing. cralawlawlibrary
XI
Petitioners point out that they were never served copies of Resolution
No. 9674. Thus, they claim that this Resolution's self-stated three-day
period within which they must comply has not begun to run and that
COMELEC's insistence on their compliance violates their right to due
process. They add that COMELEC has also failed to provide them
with copies of the criminal complaint subject of E.O. Case No. 13-222
for which the Subpoena dated July 1, 2013 was issued against them.
COMELEC, however, insists that "[petitioners were given fair notice of
148
the Resolution" in that:
[t]he-Notice dated 08 May 2013 sent to and received by petitioners
not only makes reference to the Resolution by its number and title but
also indicates its date of promulgation, the two newspapers of general
circulation in which it was published, it date of publication, and, more
149
important [sic], reproduces in full its dispositive portion[.]
COMELEC adds that, in any case, petitioners were "able to secure a
150
certified true copy of the [assailed] Resolution." On the filing of a
criminal complaint, COMELEC asserts that attached to the Subpoena
served on petitioners was a copy of Resolution No. 13-0739 of the
COMELEC En Bane which "provides a verbatim reproduction of the
Memorandum of the Director of the Law Department detailing
petitioners' failure to comply with the assailed Resolution and of the
Memorandum of Commissioner [Christian Robert S.] Lim submitting
151
the matter for the appropriate action of the COMELEC en bane."
COMELEC relies on infirm reasoning and reveals how, in criminally
charging petitioners, it acted arbitrarily, whimsically, and capriciously,
and violated petitioners' right to due process.
By its own reasoning, COMELEC admits that petitioners were never
actually served copies of Resolution No. 9674 after it was
promulgated on April 23, 2013. It insists, however, that this flaw has
been remedied by service to petitioners of the May 8, 2013 Notice
which reproduced Resolution No. 9674's dispositive portion.
Dismembering an official issuance by producing only a portion of it
(even if the reproduced portion is the most significant, i.e., dispositive,
portion) is not the same as serving on the concerned parties a copy of
the official issuance itself. Petitioners may have been informed of
what the dispositive portion stated, but it remains that they were never
notified and served copies of the assailed Resolution itself. In
Resolution No. 9674's own words, compliance was expected "within
152
three (3) days from receipt of this Resolution[,]" not of its partial,
dismembered, reproduction.
Not having been served with copies of Resolution No. 9674 itself,
petitioners are right in construing the three-day period for compliance
as not having begun to run. From this, it follows that no violation of the
requirement "to submit within three (3) days from receipt of this
Resolution the names of all commissioners and payors of surveys
published from February 12, 2013 to the date of the promulgation of
153
this Resolution[.]" could have been committed. Thus, there was no
basis for considering petitioners to have committed an election
offense arising from this alleged violation.
It is of no consequence that the May 8, 2013 Notice warned
petitioners that failure to comply with it "shall constitute an election
offense punishable under the first and second paragraphs of Section
154
264 of the Omnibus Election Code." It is true that the Omnibus
Election Code has been in force and effect long before Resolution No.
9674 was promulgated; nevertheless, the supposed violation of the
Omnibus Election Code rests on petitioners' alleged non-compliance
with Resolution No. 9674. This is a matter which, as we have
demonstrated, is baseless, the three-day period for compliance not
having even commenced.
It is similarly inconsequential that petitioners were subsequently able
to obtain certified true copies of Resolution No. 9674. Petitioners' own
diligence in complying with the formal requirements of Rule 65
petitions filed before this court cannot possibly be the cure for
COMELEC's inaction. These certified true copies were secured
precisely to enable petitioners to assail COMELEC's actions, not to
validate them. It would be misguided to subscribe to COMELEC's
suggestion that petitioners' diligence should be their own undoing. To
accede to this would be to effectively intimidate parties with legitimate
grievances against government actions from taking the necessary
steps to comply with (formal) requisites for judicial remedies and,
ultimately, prevent them from protecting their rights.

COMELEC's error is compounded by its failure to provide petitioners

with copies of the criminal complaint subject of E.O. Case No. 13-222.
COMELEC has neither alleged nor proven that it has done so. Per its
own allegations, all it did was serve petitioners with the May 8, 2013
Notice and the July 1, 2013 Subpoena.

These facts considered, it was not only grave error, but grave abuse
of discretion, for COMELEC to pursue unfounded criminal charges
against petitioners. In so doing, COMELEC violated petitioners' right
to due process.

WHEREFORE, the Petition is PARTIALLY GRANTED in that

COMELEC Resolution No. 9674 is upheld, and respondent
Commission on Elections is ENJOINED from prosecuting petitioners
Social Weather Stations, Inc. and Pulse Asia, Inc. for their supposed
violation of COMELEC Resolution No. 9674 in respect of their non-
submission of the names of all commissioners and payors, including
subscribers, of surveys published during the campaign period for the
2013 elections.

SO ORDERED. chanroblesvirtuallawlibrary