[G.R. NO.
166676, September 12, 2008] The OSG contends that the petition below is fatally defective for non-compliance
REPUBLIC OF THE PHILIPPINES, Petitioner, v. JENNIFER B.
CAGANDAHAN, Respondent.
DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the Rules of Court raising purely
questions of law and seeking a reversal of the Decision1 dated January 12, 2005
of the Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna, which granted
the Petition for Correction of Entries in Birth Certificate filed by Jennifer B.
Cagandahan and ordered the following changes of entries in Cagandahan's birth
certificate: (1) the name "Jennifer Cagandahan" changed to "Jeff Cagandahan"
and (2) gender from "female" to "male."
The facts are as follows.
On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for
Correction of Entries in Birth Certificate2 before the RTC, Branch 33 of Siniloan,
Laguna.
In her petition, she alleged that she was born on January 13, 1981 and was
registered as a female in the Certificate of Live Birth but while growing up, she
developed secondary male characteristics and was diagnosed to have Congenital
Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted
possess both male and female characteristics. She further alleged that she was
diagnosed to have clitoral hyperthropy in her early years and at age six,
underwent an ultrasound where it was discovered that she has small ovaries. At
age thirteen, tests revealed that her ovarian structures had minimized, she has
stopped growing and she has no breast or menstrual development. She then
alleged that for all interests and appearances as well as in mind and emotion, she
has become a male person. Thus, she prayed that her birth certificate be corrected
such that her gender be changed from female to male and her first name be
changed from Jennifer to Jeff.
The petition was published in a newspaper of general circulation for three (3)
consecutive weeks and was posted in conspicuous places by the sheriff of the
court. The Solicitor General entered his appearance and authorized the Assistant
Provincial Prosecutor to appear in his behalf.
To prove her claim, respondent testified and presented the testimony of Dr.
Michael Sionzon of the Department of Psychiatry, University of the Philippines-
Philippine General Hospital. Dr. Sionzon issued a medical certificate stating that
respondent's condition is known as CAH. He explained that genetically respondent
is female but because her body secretes male hormones, her female organs did
not develop normally and she has two sex organs - female and male. He testified
that this condition is very rare, that respondent's uterus is not fully developed
because of lack of female hormones, and that she has no monthly period. He
further testified that respondent's condition is permanent and recommended the
change of gender because respondent has made up her mind, adjusted to her
chosen role as male, and the gender change would be advantageous to her.
The RTC granted respondent's petition in a Decision dated January 12, 2005 which
reads:
The Court is convinced that petitioner has satisfactorily shown that he is entitled to
the reliefs prayed [for]. Petitioner has adequately presented to the Court very
clear and convincing proofs for the granting of his petition. It was medically
proven that petitioner's body produces male hormones, and first his body as well
as his action and feelings are that of a male. He has chosen to be male. He is a
normal person and wants to be acknowledged and identified as a male.
WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby
ordered to make the following corrections in the birth [c]ertificate of Jennifer
Cagandahan upon payment of the prescribed fees:
a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN; and
b) By changing the gender from female to MALE.
It is likewise ordered that petitioner's school records, voter's registry, baptismal
certificate, and other pertinent records are hereby amended to conform with the
foregoing corrected data.
SO ORDERED.3
Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal
of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT
BEEN COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF "SEX"
OR "GENDER" IN THE BIRTH CERTIFICATE, WHILE RESPONDENT'S MEDICAL
CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES NOT MAKE HER A
"MALE"4
Simply stated, the issue is whether the trial court erred in ordering the correction
of entries in the birth certificate of respondent to change her sex or gender, from
female to male, on the ground of her medical condition known as CAH, and her
name from "Jennifer" to "Jeff," under Rules 103 and 108 of the Rules of Court.
with Rules 103 and 108 of the Rules of Court because while the local civil registrar
is an indispensable party in a petition for cancellation or correction of entries under
Section 3, Rule 108 of the Rules of Court, respondent's petition before the court a
quo did not implead the local civil registrar.5 The OSG further contends
respondent's petition is fatally defective since it failed to state that respondent is a
bona fide resident of the province where the petition was filed for at least three (3)
years prior to the date of such filing as mandated under Section 2(b), Rule 103 of
the Rules of Court.6 The OSG argues that Rule 108 does not allow change of sex
or gender in the birth certificate and respondent's claimed medical condition
known as CAH does not make her a male.7
On the other hand, respondent counters that although the Local Civil Registrar of
Pakil, Laguna was not formally named a party in the Petition for Correction of Birth
Certificate, nonetheless the Local Civil Registrar was furnished a copy of the
Petition, the Order to publish on December 16, 2003 and all pleadings, orders or
processes in the course of the proceedings,8 respondent is actually a male person
and hence his birth certificate has to be corrected to reflect his true sex/gender,9
change of sex or gender is allowed under Rule 108,10 and respondent
substantially complied with the requirements of Rules 103 and 108 of the Rules of
Court.11
Rules 103 and 108 of the Rules of Court provide:
Rule 103
CHANGE OF NAME
SECTION 1. Venue. - A person desiring to change his name shall present the
petition to the Regional Trial Court of the province in which he resides, [or, in the
City of Manila, to the Juvenile and Domestic Relations Court].
SEC. 2. Contents of petition. - A petition for change of name shall be signed and
verified by the person desiring his name changed, or some other person on his
behalf, and shall set forth:
(a) That the petitioner has been a bona fide resident of the province where the
petition is filed for at least three (3) years prior to the date of such filing;
(b) The cause for which the change of the petitioner's name is sought;
(c) The name asked for.
SEC. 3. Order for hearing. - If the petition filed is sufficient in form and substance,
the court, by an order reciting the purpose of the petition, shall fix a date and
place for the hearing thereof, and shall direct that a copy of the order be published
before the hearing at least once a week for three (3) successive weeks in some
newspaper of general circulation published in the province, as the court shall deem
best. The date set for the hearing shall not be within thirty (30) days prior to an
election nor within four (4) months after the last publication of the notice.
SEC. 4. Hearing. - Any interested person may appear at the hearing and oppose
the petition. The Solicitor General or the proper provincial or city fiscal shall
appear on behalf of the Government of the Republic.
SEC. 5. Judgment. - Upon satisfactory proof in open court on the date fixed in the
order that such order has been published as directed and that the allegations of
the petition are true, the court shall, if proper and reasonable cause appears for
changing the name of the petitioner, adjudge that such name be changed in
accordance with the prayer of the petition.
SEC. 6. Service of judgment. - Judgments or orders rendered in connection with
this rule shall be furnished the civil registrar of the municipality or city where the
court issuing the same is situated, who shall forthwith enter the same in the civil
register.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SECTION 1. Who may file petition. - Any person interested in any act, event, order
or decree concerning the civil status of persons which has been recorded in the
civil register, may file a verified petition for the cancellation or correction of any
entry relating thereto, with the Regional Trial Court of the province where the
corresponding civil registry is located.
SEC. 2. Entries subject to cancellation or correction. - Upon good and valid
grounds, the following entries in the civil register may be cancelled or corrected:
(a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of
annulments of marriage; (f) judgments declaring marriages void from the
beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural
children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil
interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a
minor; and (o) changes of name.
SEC. 3. Parties. - When cancellation or correction of an entry in the civil register is
sought, the civil registrar and all persons who have or claim any interest which
would be affected thereby shall be made parties to the proceeding.
SEC. 4. Notice and publication. - Upon the filing of the petition, the court shall, by
an order, fix the time and place for the hearing of the same, and cause reasonable
notice thereof to be given to the persons named in the petition. The court shall
also cause the order to be published once a week for three (3) consecutive weeks
in a newspaper of general circulation in the province.
SEC. 5. Opposition. - The civil registrar and any person having or claiming any
interest under the entry whose cancellation or correction is sought may, within
fifteen (15) days from notice of the petition, or from the last date of publication of
such notice, file his opposition thereto.
SEC. 6. Expediting proceedings. - The court in which the proceedings is brought
may make orders expediting the proceedings, and may also grant preliminary
1
injunction for the preservation of the rights of the parties pending such be other than female, then a change in the subject's birth certificate entry is in
proceedings. order.

SEC. 7. Order. - After hearing, the court may either dismiss the petition or issue
an order granting the cancellation or correction prayed for. In either case, a
certified copy of the judgment shall be served upon the civil registrar concerned
who shall annotate the same in his record.
The OSG argues that the petition below is fatally defective for non-compliance with
Rules 103 and 108 of the Rules of Court because respondent's petition did not
implead the local civil registrar. Section 3, Rule 108 provides that the civil registrar
and all persons who have or claim any interest which would be affected thereby
shall be made parties to the proceedings. Likewise, the local civil registrar is
required to be made a party in a proceeding for the correction of name in the civil
registry. He is an indispensable party without whom no final determination of the
case can be had.12 Unless all possible indispensable parties were duly notified of
the proceedings, the same shall be considered as falling much too short of the
requirements of the rules.13 The corresponding petition should also implead as
respondents the civil registrar and all other persons who may have or may claim
to have any interest that would be affected thereby.14 Respondent, however,
invokes Section 6,15 Rule 1 of the Rules of Court which states that courts shall
construe the Rules liberally to promote their objectives of securing to the parties a
just, speedy and inexpensive disposition of the matters brought before it. We
agree that there is substantial compliance with Rule 108 when respondent
furnished a copy of the petition to the local civil registrar.
The determination of a person's sex appearing in his birth certificate is a legal
issue and the court must look to the statutes. In this connection, Article 412 of the
Civil Code provides:
ART. 412. No entry in a civil register shall be changed or corrected without a
judicial order.
Together with Article 37616 of the Civil Code, this provision was amended by
Republic Act No. 904817 in so far as clerical or typographical errors are involved.
The correction or change of such matters can now be made through administrative
proceedings and without the need for a judicial order. In effect, Rep. Act No. 9048
removed from the ambit of Rule 108 of the Rules of Court the correction of such
errors. Rule 108 now applies only to substantial changes and corrections in entries
in the civil register.18
Under Rep. Act No. 9048, a correction in the civil registry involving the change of
sex is not a mere clerical or typographical error. It is a substantial change for
which the applicable procedure is Rule 108 of the Rules of Court.19
The entries envisaged in Article 412 of the Civil Code and correctable under Rule
108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil
Code:
ART. 407. Acts, events and judicial decrees concerning the civil status of persons
shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of
marriage; (6) judgments declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction;
(14) judicial determination of filiation; (15) voluntary emancipation of a minor;
and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil Code
include even those that occur after birth.20
Respondent undisputedly has CAH. This condition causes the early or
"inappropriate" appearance of male characteristics. A person, like respondent, with
this condition produces too much androgen, a male hormone. A newborn who has
XX chromosomes coupled with CAH usually has a (1) swollen clitoris with the
urethral opening at the base, an ambiguous genitalia often appearing more male
than female; (2) normal internal structures of the female reproductive tract such
as the ovaries, uterus and fallopian tubes; as the child grows older, some features
start to appear male, such as deepening of the voice, facial hair, and failure to
menstruate at puberty. About 1 in 10,000 to 18,000 children are born with CAH.
Biologically, nature endowed respondent with a mixed (neither consistently and
categorically female nor consistently and categorically male) composition.
Respondent has female (XX) chromosomes. However, respondent's body system
naturally produces high levels of male hormones (androgen). As a result,
respondent has ambiguous genitalia and the phenotypic features of a male.
Ultimately, we are of the view that where the person is biologically or naturally
intersex the determining factor in his gender classification would be what the
individual, like respondent, having reached the age of majority, with good reason
thinks of his/her sex. Respondent here thinks of himself as a male and considering
that his body produces high levels of male hormones (androgen) there is
preponderant biological support for considering him as being male. Sexual
development in cases of intersex persons makes the gender classification at birth
inconclusive. It is at maturity that the gender of such persons, like respondent, is
fixed.
Respondent here has simply let nature take its course and has not taken unnatural
steps to arrest or interfere with what he was born with. And accordingly, he has
already ordered his life to that of a male. Respondent could have undergone
treatment and taken steps, like taking lifelong medication,26 to force his body into
the categorical mold of a female but he did not. He chose not to do so. Nature has
instead taken its due course in respondent's development to reveal more fully his
male characteristics.
In the absence of a law on the matter, the Court will not dictate on respondent
concerning a matter so innately private as one's sexuality and lifestyle
preferences, much less on whether or not to undergo medical treatment to reverse
the male tendency due to CAH. The Court will not consider respondent as having
erred in not choosing to undergo treatment in order to become or remain as a
female. Neither will the Court force respondent to undergo treatment and to take
medication in order to fit the mold of a female, as society commonly currently
knows this gender of the human species. Respondent is the one who has to live
with his intersex anatomy. To him belongs the human right to the pursuit of
happiness and of health. Thus, to him should belong the primordial choice of what
courses of action to take along the path of his sexual development and
maturation. In the absence of evidence that respondent is an "incompetent">27
and in the absence of evidence to show that classifying respondent as a male will
harm other members of society who are equally entitled to protection under the
law, the Court affirms as valid and justified the respondent's position and his
personal judgment of being a male.
In so ruling we do no more than give respect to (1) the diversity of nature; and
(2) how an individual deals with what nature has handed out. In other words, we
respect respondent's congenital condition and his mature decision to be a male.
Life is already difficult for the ordinary person. We cannot but respect how
respondent deals with his unordinary state and thus help make his life easier,
considering the unique circumstances in this case.
As for respondent's change of name under Rule 103, this Court has held that a
change of name is not a matter of right but of judicial discretion, to be exercised in
the light of the reasons adduced and the consequences that will follow.28 The trial
court's grant of respondent's change of name from Jennifer to Jeff implies a
change of a feminine name to a masculine name. Considering the consequence
that respondent's change of name merely recognizes his preferred gender, we find
merit in respondent's change of name. Such a change will conform with the
change of the entry in his birth certificate from female to male.
WHEREFORE, the Republic's petition is DENIED. The Decision dated January 12,
2005 of the Regional Trial Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No
pronouncement as to costs.
SO ORDERED.

CAH is one of many conditions21 that involve intersex anatomy. During the
twentieth century, medicine adopted the term "intersexuality" to apply to human
beings who cannot be classified as either male or female.22 The term is now of
widespread use. According to Wikipedia, intersexuality "is the state of a living
thing of a gonochoristic species whose sex chromosomes, genitalia, and/or
secondary sex characteristics are determined to be neither exclusively male nor
female. An organism with intersex may have biological characteristics of both male
and female sexes."

Intersex individuals are treated in different ways by different cultures. In most

societies, intersex individuals have been expected to conform to either a male or
female gender role.23 Since the rise of modern medical science in Western
societies, some intersex people with ambiguous external genitalia have had their
genitalia surgically modified to resemble either male or female genitals.24 More
commonly, an intersex individual is considered as suffering from a "disorder"
which is almost always recommended to be treated, whether by surgery and/or by
taking lifetime medication in order to mold the individual as neatly as possible into
the category of either male or female.

In deciding this case, we consider the compassionate calls for recognition of the
various degrees of intersex as variations which should not be subject to outright
denial. "It has been suggested that there is some middle ground between the
sexes, a `no-man's land' for those individuals who are neither truly `male' nor
truly `female'"25 The current state of Philippine statutes apparently compels that
a person be classified either as a male or as a female, but this Court is not
controlled by mere appearances when nature itself fundamentally negates such
rigid classification.

In the instant case, if we determine respondent to be a female, then there is no

basis for a change in the birth certificate entry for gender. But if we determine,
based on medical testimony and scientific development showing the respondent to

2
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-31195 June 5, 1973
PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION, NICANOR TOLENTINO,
FLORENCIO, PADRIGANO RUFINO, ROXAS MARIANO DE LEON, ASENCION
PACIENTE, BONIFACIO VACUNA, BENJAMIN PAGCU and RODULFO
MUNSOD, petitioners,
vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL
RELATIONS, respondents.
L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners.
Demetrio B. Salem & Associates for private respondent.
MAKASIAR, J.:
The petitioner Philippine Blooming Mills Employees Organization (hereinafter referred to as
PBMEO) is a legitimate labor union composed of the employees of the respondent Philippine
Blooming Mills Co., Inc., and petitioners Nicanor Tolentino, Florencio Padrigano, Rufino
Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu and Rodulfo
Munsod are officers and members of the petitioner Union.
Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration at
Malacañang on March 4, 1969, in protest against alleged abuses of the Pasig police, to be
participated in by the workers in the first shift (from 6 A.M. to 2 P.M.) as well as those in the
regular second and third shifts (from 7 A.M. to 4 P.M. and from 8 A.M. to 5 P.M., respectively);
and that they informed the respondent Company of their proposed demonstration.
The questioned order dated September 15, 1969, of Associate Judge Joaquin M. Salvador of
the respondent Court reproduced the following stipulation of facts of the parties — parties —
3. That on March 2, 1969 complainant company learned of the projected mass demonstration
at Malacañang in protest against alleged abuses of the Pasig Police Department to be
participated by the first shift (6:00 AM-2:00 PM) workers as well as those working in the regular
shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in the morning of March 4, 1969;
4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M. at the
Company's canteen, and those present were: for the Company: (1) Mr. Arthur L. Ang (2) Atty.
S. de Leon, Jr., (3) and all department and section heads. For the PBMEO (1) Florencio
Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion Paciente, (5) Bonifacio
Vacuna and (6) Benjamin Pagcu.
5. That the Company asked the union panel to confirm or deny said projected mass
demonstration at Malacañang on March 4, 1969. PBMEO thru Benjamin Pagcu who acted as
spokesman of the union panel, confirmed the planned demonstration and stated that the
demonstration or rally cannot be cancelled because it has already been agreed upon in the
meeting. Pagcu explained further that the demonstration has nothing to do with the Company
because the union has no quarrel or dispute with Management;
6. That Management, thru Atty. C.S. de Leon, Company personnel manager, informed PBMEO
that the demonstration is an inalienable right of the union guaranteed by the Constitution but
emphasized, however, that any demonstration for that matter should not unduly prejudice the
normal operation of the Company. For which reason, the Company, thru Atty. C.S. de Leon
warned the PBMEO representatives that workers who belong to the first and regular shifts,
who without previous leave of absence approved by the Company, particularly , the officers
present who are the organizers of the demonstration, who shall fail to report for work the
following morning (March 4, 1969) shall be dismissed, because such failure is a violation of the
existing CBA and, therefore, would be amounting to an illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked Company
represented by Atty. C.S. de Leon, Jr. The Union panel was composed of: Nicanor Tolentino,
Rodolfo Munsod, Benjamin Pagcu and Florencio Padrigano. In this afternoon meeting of
March 3, 1969, Company reiterated and appealed to the PBMEO representatives that while all
workers may join the Malacañang demonstration, the workers for the first and regular shift of
March 4, 1969 should be excused from joining the demonstration and should report for work;
and thus utilize the workers in the 2nd and 3rd shifts in order not to violate the provisions of the
CBA, particularly Article XXIV: NO LOCKOUT — NO STRIKE'. All those who will not follow this
warning of the Company shall be dismiss; De Leon reiterated the Company's warning that the
officers shall be primarily liable being the organizers of the mass demonstration. The union
panel countered that it was rather too late to change their plans inasmuch as the Malacañang
demonstration will be held the following morning; and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the Company
which was received 9:50 A.M., March 4, 1969, the contents of which are as follows:
'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION
MARCH 4, 1969.' (Pars. 3-8, Annex "F", pp. 42-43, rec.)
Because the petitioners and their members numbering about 400 proceeded with the
demonstration despite the pleas of the respondent Company that the first shift workers should
not be required to participate in the demonstration and that the workers in the second and third
shifts should be utilized for the demonstration from 6 A.M. to 2 P.M. on March 4, 1969,
respondent Company prior notice of the mass demonstration on March 4, 1969, with the
respondent Court, a charge against petitioners and other employees who composed the first
shift, charging them with a "violation of Section 4(a)-6 in relation to Sections 13 and 14, as well
as Section 15, all of Republic Act No. 875, and of the CBA providing for 'No Strike and No
Lockout.' " (Annex "A", pp. 19-20, rec.). The charge was accompanied by the joint affidavit of
Arthur L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24, rec.). Thereafter, a
corresponding complaint was filed, dated April 18, 1969, by Acting Chief Prosecutor Antonio T.
Tirona and Acting Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.)
In their answer, dated May 9, 1969, herein petitioners claim that they did not violate the
existing CBA because they gave the respondent Company prior notice of the mass
demonstration on March 4, 1969; that the said mass demonstration was a valid exercise of
their constitutional freedom of speech against the alleged abuses of some Pasig policemen;
and that their mass demonstration was not a declaration of strike because it was not directed
against the respondent firm (Annex "D", pp. 31-34, rec.)
After considering the aforementioned stipulation of facts submitted by the parties, Judge
Joaquin M. Salvador, in an order dated September 15, 1969, found herein petitioner PBMEO
guilty of bargaining in bad faith and herein petitioners Florencio Padrigano, Rufino Roxas,
Mariano de Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino
and Rodulfo Munsod as directly responsible for perpetrating the said unfair labor practice and
were, as a consequence, considered to have lost their status as employees of the respondent
Company (Annex "F", pp. 42-56, rec.)
Herein petitioners claim that they received on September 23, 1969, the aforesaid order (p. 11,
rec.); and that they filed on September 29, 1969, because September 28, 1969 fell on Sunday
(p. 59, rec.), a motion for reconsideration of said order dated September 15, 1969, on the
ground that it is contrary to law and the evidence, as well as asked for ten (10) days within
which to file their arguments pursuant to Sections 15, 16 and 17 of the Rules of the CIR, as
amended (Annex "G", pp. 57-60, rec. )
In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63, rec.), respondent
Company averred that herein petitioners received on September 22, 1969, the order dated
September 17 (should be September 15), 1969; that under Section 15 of the amended Rules
of the Court of Industrial Relations, herein petitioners had five (5) days from September 22,
1969 or until September 27, 1969, within which to file their motion for reconsideration; and that
because their motion for reconsideration was two (2) days late, it should be accordingly
dismissed, invoking Bien vs. Castillo,1 which held among others, that a motion for extension of
the five-day period for the filing of a motion for reconsideration should be filed before the said
five-day period elapses (Annex "M", pp. 61-64, rec.).
Subsequently, herein petitioners filed on October 14, 1969 their written arguments dated
October 11, 1969, in support of their motion for reconsideration (Annex "I", pp. 65-73, rec.).
In a resolution dated October 9, 1969, the respondent en banc dismissed the motion for
reconsideration of herein petitioners for being pro forma as it was filed beyond the
reglementary period prescribed by its Rules (Annex "J", pp. 74-75, rec.), which herein
petitioners received on October 28, 196 (pp. 12 & 76, rec.).
At the bottom of the notice of the order dated October 9, 1969, which was released on October
24, 1969 and addressed to the counsels of the parties (pp. 75-76, rec.), appear the
requirements of Sections 15, 16 and 17, as amended, of the Rules of the Court of Industrial
Relations, that a motion for reconsideration shall be filed within five (5) days from receipt of its
decision or order and that an appeal from the decision, resolution or order of the C.I.R.,
sitting en banc, shall be perfected within ten (10) days from receipt thereof (p. 76, rec.).
On October 31, 1969, herein petitioners filed with the respondent court a petition for relief from
the order dated October 9, 1969, on the ground that their failure to file their motion for
reconsideration on time was due to excusable negligence and honest mistake committed by
the president of the petitioner Union and of the office clerk of their counsel, attaching thereto
the affidavits of the said president and clerk (Annexes "K", "K-1" and "K-2", rec.).
Without waiting for any resolution on their petition for relief from the order dated October 9,
1969, herein petitioners filed on November 3, 1969, with the Supreme Court, a notice of appeal
(Annex "L", pp. 88-89, rec.).
I
There is need of briefly restating basic concepts and principles which underlie the issues
posed by the case at bar.
(1) In a democracy, the preservation and enhancement of the dignity and worth of the human
personality is the central core as well as the cardinal article of faith of our civilization. The
inviolable character of man as an individual must be "protected to the largest possible extent in
his thoughts and in his beliefs as the citadel of his person." 2
(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against
the assaults of opportunism, the expediency of the passing hour, the erosion of small
encroachments, and the scorn and derision of those who have no patience with general
principles."3
In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to
withdraw "certain subjects from the vicissitudes of political controversy, to place them beyond
the reach of majorities and officials, and to establish them as legal principles to be applied by
the courts. One's rights to life, liberty and property, to free speech, or free press, freedom of
worship and assembly, and other fundamental rights may not be submitted to a vote; they
depend on the outcome of no elections." 4 Laski proclaimed that "the happiness of the
individual, not the well-being of the State, was the criterion by which its behaviour was to be
judged. His interests, not its power, set the limits to the authority it was entitled to exercise."5
(3) The freedoms of expression and of assembly as well as the right to petition are included
among the immunities reserved by the sovereign people, in the rhetorical aphorism of Justice
Holmes, to protect the ideas that we abhor or hate more than the ideas we cherish; or as
Socrates insinuated, not only to protect the minority who want to talk, but also to benefit the
majority who refuse to listen.6 And as Justice Douglas cogently stresses it, the liberties of one
are the liberties of all; and the liberties of one are not safe unless the liberties of all are
protected.7
(4) The rights of free expression, free assembly and petition, are not only civil rights but also
political rights essential to man's enjoyment of his life, to his happiness and to his full and
complete fulfillment. Thru these freedoms the citizens can participate not merely in the periodic
establishment of the government through their suffrage but also in the administration of public
affairs as well as in the discipline of abusive public officers. The citizen is accorded these rights
so that he can appeal to the appropriate governmental officers or agencies for redress and
protection as well as for the imposition of the lawful sanctions on erring public officers and
employees.
(5) While the Bill of Rights also protects property rights, the primacy of human rights over
property rights is recognized.8 Because these freedoms are "delicate and vulnerable, as well
as supremely precious in our society" and the "threat of sanctions may deter their exercise
almost as potently as the actual application of sanctions," they "need breathing space to
survive," permitting government regulation only "with narrow specificity." 9
Property and property rights can be lost thru prescription; but human rights are imprescriptible.
If human rights are extinguished by the passage of time, then the Bill of Rights is a useless
attempt to limit the power of government and ceases to be an efficacious shield against the
tyranny of officials, of majorities, of the influential and powerful, and of oligarchs — political,
economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a
preferred position as they are essential to the preservation and vitality of our civil and political
institutions; 10 and such priority "gives these liberties the sanctity and the sanction not
permitting dubious intrusions." 11
The superiority of these freedoms over property rights is underscored by the fact that a mere
reasonable or rational relation between the means employed by the law and its object or
purpose — that the law is neither arbitrary nor discriminatory nor oppressive — would suffice
to validate a law which restricts or impairs property rights. 12 On the other hand, a constitutional
or valid infringement of human rights requires a more stringent criterion, namely existence of a
grave and immediate danger of a substantive evil which the State has the right to prevent. So it
has been stressed in the main opinion of Mr. Justice Fernando in Gonzales vs. Comelec and
reiterated by the writer of the opinion in Imbong vs. Ferrer. 13 It should be added that Mr.
Justice Barredo in Gonzales vs. Comelec, supra, like Justices Douglas, Black and Goldberg
in N.Y. Times Co. vs. Sullivan, 14 believes that the freedoms of speech and of the press as well
as of peaceful assembly and of petition for redress of grievances are absolute when directed
against public officials or "when exercised in relation to our right to choose the men and
women by whom we shall be governed," 15 even as Mr. Justice Castro relies on the balancing-
of-interests test. 16 Chief Justice Vinson is partial to the improbable danger rule formulated by
3
Chief Judge Learned Hand, viz. — whether the gravity of the evil, discounted by its
improbability, justifies such invasion of free expression as is necessary to avoid the danger. 17
II
The respondent Court of Industrial Relations, after opining that the mass demonstration was
not a declaration of strike, concluded that by their "concerted act and the occurrence
temporary stoppage of work," herein petitioners are guilty bargaining in bad faith and hence
violated the collective bargaining agreement with private respondent Philippine Blooming Mills
Co., inc.. Set against and tested by foregoing principles governing a democratic society, such
conclusion cannot be sustained. The demonstration held petitioners on March 4, 1969 before
Malacañang was against alleged abuses of some Pasig policemen, not against their employer,
herein private respondent firm, said demonstrate was purely and completely an exercise of
their freedom expression in general and of their right of assembly and petition for redress of
grievances in particular before appropriate governmental agency, the Chief Executive, again
the police officers of the municipality of Pasig. They exercise their civil and political rights for
their mutual aid protection from what they believe were police excesses. As matter of fact, it
was the duty of herein private respondent firm to protect herein petitioner Union and its
members fro the harassment of local police officers. It was to the interest herein private
respondent firm to rally to the defense of, and take up the cudgels for, its employees, so that
they can report to work free from harassment, vexation or peril and as consequence perform
more efficiently their respective tasks enhance its productivity as well as profits. Herein
respondent employer did not even offer to intercede for its employees with the local police.
Was it securing peace for itself at the expenses of its workers? Was it also intimidated by the
local police or did it encourage the local police to terrorize or vex its workers? Its failure to
defend its own employees all the more weakened the position of its laborers the alleged
oppressive police who might have been all the more emboldened thereby subject its lowly
employees to further indignities.
In seeking sanctuary behind their freedom of expression well as their right of assembly and of
petition against alleged persecution of local officialdom, the employees and laborers of herein
private respondent firm were fighting for their very survival, utilizing only the weapons afforded
them by the Constitution — the untrammelled enjoyment of their basic human rights. The
pretension of their employer that it would suffer loss or damage by reason of the absence of its
employees from 6 o'clock in the morning to 2 o'clock in the afternoon, is a plea for the
preservation merely of their property rights. Such apprehended loss or damage would not spell
the difference between the life and death of the firm or its owners or its management. The
employees' pathetic situation was a stark reality — abused, harassment and persecuted as
they believed they were by the peace officers of the municipality. As above intimated, the
condition in which the employees found themselves vis-a-vis the local police of Pasig, was a
matter that vitally affected their right to individual existence as well as that of their families.
Material loss can be repaired or adequately compensated. The debasement of the human
being broken in morale and brutalized in spirit-can never be fully evaluated in monetary terms.
The wounds fester and the scars remain to humiliate him to his dying day, even as he cries in
anguish for retribution, denial of which is like rubbing salt on bruised tissues.
As heretofore stated, the primacy of human rights — freedom of expression, of peaceful
assembly and of petition for redress of grievances — over property rights has been
sustained. 18 Emphatic reiteration of this basic tenet as a coveted boon — at once the shield
and armor of the dignity and worth of the human personality, the all-consuming ideal of our
enlightened civilization — becomes Our duty, if freedom and social justice have any meaning
at all for him who toils so that capital can produce economic goods that can generate
happiness for all. To regard the demonstration against police officers, not against the
employer, as evidence of bad faith in collective bargaining and hence a violation of the
collective bargaining agreement and a cause for the dismissal from employment of the
demonstrating employees, stretches unduly the compass of the collective bargaining
agreement, is "a potent means of inhibiting speech" and therefore inflicts a moral as well as
mortal wound on the constitutional guarantees of free expression, of peaceful assembly and of
petition. 19
The collective bargaining agreement which fixes the working shifts of the employees,
according to the respondent Court Industrial Relations, in effect imposes on the workers the
"duty ... to observe regular working hours." The strain construction of the Court of Industrial
Relations that a stipulated working shifts deny the workers the right to stage mass
demonstration against police abuses during working hours, constitutes a virtual tyranny over
the mind and life the workers and deserves severe condemnation. Renunciation of the
freedom should not be predicated on such a slender ground.
The mass demonstration staged by the employees on March 4, 1969 could not have been
legally enjoined by any court, such an injunction would be trenching upon the freedom
expression of the workers, even if it legally appears to be illegal picketing or strike. 20 The
respondent Court of Industrial Relations in the case at bar concedes that the mass
demonstration was not a declaration of a strike "as the same not rooted in any industrial
dispute although there is concerted act and the occurrence of a temporary stoppage work."
(Annex "F", p. 45, rec.).
The respondent firm claims that there was no need for all its employees to participate in the
demonstration and that they suggested to the Union that only the first and regular shift from 6
A.M. to 2 P.M. should report for work in order that loss or damage to the firm will be averted.
This stand failed appreciate the sine qua non of an effective demonstration especially by a
labor union, namely the complete unity of the Union members as well as their total presence at
the demonstration site in order to generate the maximum sympathy for the validity of their
cause but also immediately action on the part of the corresponding government agencies with
jurisdiction over the issues they raised against the local police. Circulation is one of the
aspects of freedom of expression. 21 If demonstrators are reduced by one-third, then by that
much the circulation of the issues raised by the demonstration is diminished. The more the
participants, the more persons can be apprised of the purpose of the rally. Moreover, the
absence of one-third of their members will be regarded as a substantial indication of disunity in
their ranks which will enervate their position and abet continued alleged police persecution. At
any rate, the Union notified the company two days in advance of their projected demonstration
and the company could have made arrangements to counteract or prevent whatever losses it
might sustain by reason of the absence of its workers for one day, especially in this case when
the Union requested it to excuse only the day-shift employees who will join the demonstration
on March 4, 1969 which request the Union reiterated in their telegram received by the
company at 9:50 in the morning of March 4, 1969, the day of the mass demonstration (pp. 42-
43, rec.). There was a lack of human understanding or compassion on the part of the firm in
rejecting the request of the Union for excuse from work for the day shifts in order to carry out
its mass demonstration. And to regard as a ground for dismissal the mass demonstration held
against the Pasig police, not against the company, is gross vindictiveness on the part of the
employer, which is as unchristian as it is unconstitutional.
III
The respondent company is the one guilty of unfair labor practice. Because the refusal on the
part of the respondent firm to permit all its employees and workers to join the mass
demonstration against alleged police abuses and the subsequent separation of the eight (8)
petitioners from the service constituted an unconstitutional restraint on the freedom of
expression, freedom of assembly and freedom petition for redress of grievances, the
respondent firm committed an unfair labor practice defined in Section 4(a-1) in relation to
Section 3 of Republic Act No. 875, otherwise known as the Industrial Peace Act. Section 3 of
Republic Act No. 8 guarantees to the employees the right "to engage in concert activities for ...
mutual aid or protection"; while Section 4(a-1) regards as an unfair labor practice for an
employer interfere with, restrain or coerce employees in the exercise their rights guaranteed in
Section Three."
We repeat that the obvious purpose of the mass demonstration staged by the workers of the
respondent firm on March 4, 1969, was for their mutual aid and protection against alleged
police abuses, denial of which was interference with or restraint on the right of the employees
to engage in such common action to better shield themselves against such alleged police
indignities. The insistence on the part of the respondent firm that the workers for the morning
and regular shift should not participate in the mass demonstration, under pain of dismissal,
was as heretofore stated, "a potent means of inhibiting speech." 22
Such a concerted action for their mutual help and protection deserves at least equal protection
as the concerted action of employees in giving publicity to a letter complaint charging bank
president with immorality, nepotism, favoritism an discrimination in the appointment and
promotion of ban employees. 23 We further ruled in the Republic Savings Bank case, supra,
that for the employees to come within the protective mantle of Section 3 in relation to Section
4(a-1) on Republic Act No. 875, "it is not necessary that union activity be involved or that
collective bargaining be contemplated," as long as the concerted activity is for the furtherance
of their interests. 24
As stated clearly in the stipulation of facts embodied in the questioned order of respondent
Court dated September 15, 1969, the company, "while expressly acknowledging, that the
demonstration is an inalienable right of the Union guaranteed by the Constitution," nonetheless
emphasized that "any demonstration for that matter should not unduly prejudice the normal
operation of the company" and "warned the PBMEO representatives that workers who belong
to the first and regular shifts, who without previous leave of absence approved by the
Company, particularly the officers present who are the organizers of the demonstration, who
shall fail to report for work the following morning (March 4, 1969) shall be dismissed, because
such failure is a violation of the existing CBA and, therefore, would be amounting to an illegal
strike (;)" (p. III, petitioner's brief). Such threat of dismissal tended to coerce the employees
from joining the mass demonstration. However, the issues that the employees raised against
the local police, were more important to them because they had the courage to proceed with
the demonstration, despite such threat of dismissal. The most that could happen to them was
to lose a day's wage by reason of their absence from work on the day of the demonstration.
One day's pay means much to a laborer, more especially if he has a family to support. Yet,
they were willing to forego their one-day salary hoping that their demonstration would bring
about the desired relief from police abuses. But management was adamant in refusing to
recognize the superior legitimacy of their right of free speech, free assembly and the right to
petition for redress.
Because the respondent company ostensibly did not find it necessary to demand from the
workers proof of the truth of the alleged abuses inflicted on them by the local police, it thereby
concedes that the evidence of such abuses should properly be submitted to the corresponding
authorities having jurisdiction over their complaint and to whom such complaint may be
referred by the President of the Philippines for proper investigation and action with a view to
disciplining the local police officers involved.
On the other hand, while the respondent Court of Industrial Relations found that the
demonstration "paralyzed to a large extent the operations of the complainant company," the
respondent Court of Industrial Relations did not make any finding as to the fact of loss actually
sustained by the firm. This significant circumstance can only mean that the firm did not sustain
any loss or damage. It did not present evidence as to whether it lost expected profits for failure
to comply with purchase orders on that day; or that penalties were exacted from it by
customers whose orders could not be filled that day of the demonstration; or that purchase
orders were cancelled by the customers by reason of its failure to deliver the materials
ordered; or that its own equipment or materials or products were damaged due to absence of
its workers on March 4, 1969. On the contrary, the company saved a sizable amount in the
form of wages for its hundreds of workers, cost of fuel, water and electric consumption that
day. Such savings could have amply compensated for unrealized profits or damages it might
have sustained by reason of the absence of its workers for only one day.
IV
Apart from violating the constitutional guarantees of free speech and assembly as well as the
right to petition for redress of grievances of the employees, the dismissal of the eight (8)
leaders of the workers for proceeding with the demonstration and consequently being absent
from work, constitutes a denial of social justice likewise assured by the fundamental law to
these lowly employees. Section 5 of Article II of the Constitution imposes upon the State "the
promotion of social justice to insure the well-being and economic security of all of the people,"
which guarantee is emphasized by the other directive in Section 6 of Article XIV of the
Constitution that "the State shall afford protection to labor ...". Respondent Court of Industrial
Relations as an agency of the State is under obligation at all times to give meaning and
substance to these constitutional guarantees in favor of the working man; for otherwise these
constitutional safeguards would be merely a lot of "meaningless constitutional patter." Under
the Industrial Peace Act, the Court of Industrial Relations is enjoined to effect the policy of the
law "to eliminate the causes of industrial unrest by encouraging and protecting the exercise by
employees of their right to self-organization for the purpose of collective bargaining and for the
promotion of their moral, social and economic well-being." It is most unfortunate in the case at
bar that respondent Court of Industrial Relations, the very governmental agency designed
therefor, failed to implement this policy and failed to keep faith with its avowed mission —
its raison d'etre — as ordained and directed by the Constitution.
V
It has been likewise established that a violation of a constitutional right divests the court of
jurisdiction; and as a consequence its judgment is null and void and confers no rights. Relief
from a criminal conviction secured at the sacrifice of constitutional liberties, may be obtained
through habeas corpus proceedings even long after the finality of the judgment. Thus, habeas
corpus is the remedy to obtain the release of an individual, who is convicted by final judgment
through a forced confession, which violated his constitutional right against self-
incrimination; 25 or who is denied the right to present evidence in his defense as a deprivation
of his liberty without due process of law, 26 even after the accused has already served
sentence for twenty-two years. 27
Both the respondents Court of Industrial Relations and private firm trenched upon these
constitutional immunities of petitioners. Both failed to accord preference to such rights and
aggravated the inhumanity to which the aggrieved workers claimed they had been subjected
by the municipal police. Having violated these basic human rights of the laborers, the Court of
Industrial Relations ousted itself of jurisdiction and the questioned orders it issued in the
instant case are a nullity. Recognition and protection of such freedoms are imperative on all
public offices including the courts 28 as well as private citizens and corporations, the exercise
and enjoyment of which must not be nullified by mere procedural rule promulgated by the
Court Industrial Relations exercising a purely delegate legislative power, when even a law
enacted by Congress must yield to the untrammelled enjoyment of these human rights. There
is no time limit to the exercise of the freedoms. The right to enjoy them is not exhausted by the
delivery of one speech, the printing of one article or the staging of one demonstration. It is a
continuing immunity to be invoked and exercised when exigent and expedient whenever there
are errors to be rectified, abuses to be denounced, inhumanities to be condemned. Otherwise
these guarantees in the Bill of Rights would be vitiated by rule on procedure prescribing the
period for appeal. The battle then would be reduced to a race for time. And in such a contest
between an employer and its laborer, the latter eventually loses because he cannot employ the
best an dedicated counsel who can defend his interest with the required diligence and zeal,
bereft as he is of the financial resources with which to pay for competent legal services. 28-a
VI
The Court of Industrial Relations rule prescribes that motion for reconsideration of its order or
writ should filed within five (5) days from notice thereof and that the arguments in support of
said motion shall be filed within ten (10) days from the date of filing of such motion for
reconsideration (Sec. 16). As above intimated, these rules of procedure were promulgated by
the Court of Industrial Relations pursuant to a legislative delegation. 29
The motion for reconsideration was filed on September 29, 1969, or seven (7) days from notice
on September 22, 1969 of the order dated September 15, 1969 or two (2) days late.
Petitioners claim that they could have filed it on September 28, 1969, but it was a Sunday.
4
Does the mere fact that the motion for reconsideration was filed two (2) days late defeat the
rights of the petitioning employees? Or more directly and concretely, does the inadvertent
omission to comply with a mere Court of Industrial Relations procedural rule governing the
period for filing a motion for reconsideration or appeal in labor cases, promulgated pursuant to
a legislative delegation, prevail over constitutional rights? The answer should be obvious in the
light of the aforecited cases. To accord supremacy to the foregoing rules of the Court of
Industrial Relations over basic human rights sheltered by the Constitution, is not only
incompatible with the basic tenet of constitutional government that the Constitution is superior
to any statute or subordinate rules and regulations, but also does violence to natural reason
and logic. The dominance and superiority of the constitutional right over the aforesaid Court of
Industrial Relations procedural rule of necessity should be affirmed. Such a Court of Industrial
Relations rule as applied in this case does not implement or reinforce or strengthen the
constitutional rights affected,' but instead constrict the same to the point of nullifying the
enjoyment thereof by the petitioning employees. Said Court of Industrial Relations rule,
promulgated as it was pursuant to a mere legislative delegation, is unreasonable and therefore
is beyond the authority granted by the Constitution and the law. A period of five (5) days within
which to file a motion for reconsideration is too short, especially for the aggrieved workers, who
usually do not have the ready funds to meet the necessary expenses therefor. In case of the
Court of Appeals and the Supreme Court, a period of fifteen (15) days has been fixed for the
filing of the motion for re hearing or reconsideration (See. 10, Rule 51; Sec. 1, Rule 52; Sec. 1,
Rule 56, Revised Rules of Court). The delay in the filing of the motion for reconsideration could
have been only one day if September 28, 1969 was not a Sunday. This fact accentuates the
unreasonableness of the Court of Industrial are concerned.
It should be stressed here that the motion for reconsideration dated September 27, 1969, is
based on the ground that the order sought to be reconsidered "is not in accordance with law,
evidence and facts adduced during the hearing," and likewise prays for an extension of ten
(10) days within which to file arguments pursuant to Sections 15, 16 and 17 of the Rules of the
Court of Industrial Relations (Annex "G", pp. 57-60, rec.); although the arguments were
actually filed by the herein petitioners on October 14, 1969 (Annex "I", pp. 70-73, rec.), long
after the 10-day period required for the filing of such supporting arguments counted from the
filing of the motion for reconsideration. Herein petitioners received only on October 28, 1969
the resolution dated October 9, 1969 dismissing the motion for reconsideration for being pro
forma since it was filed beyond the reglementary period (Annex "J", pp. 74-75, rec.)
It is true that We ruled in several cases that where a motion to reconsider is filed out of time, or
where the arguments in suppf such motion are filed beyond the 10 day reglementary period
provided for by the Court of Industrial Relations rules, the order or decision subject of 29-
a reconsideration becomes final and unappealable. But in all these cases, the constitutional
rights of free expression, free assembly and petition were not involved.
It is a procedural rule that generally all causes of action and defenses presently available must
be specifically raised in the complaint or answer; so that any cause of action or defense not
raised in such pleadings, is deemed waived. However, a constitutional issue can be raised any
time, even for the first time on appeal, if it appears that the determination of the constitutional
issue is necessary to a decision of the case, the very lis mota of the case without the resolution
of which no final and complete determination of the dispute can be made. 30 It is thus seen that
a procedural rule of Congress or of the Supreme Court gives way to a constitutional right. In
the instant case, the procedural rule of the Court of Industrial Relations, a creature of
Congress, must likewise yield to the constitutional rights invoked by herein petitioners even
before the institution of the unfair labor practice charged against them and in their defense to
the said charge.
In the case at bar, enforcement of the basic human freedoms sheltered no less by the organic
law, is a most compelling reason to deny application of a Court of Industrial Relations rule
which impinges on such human rights. 30-a
It is an accepted principle that the Supreme Court has the inherent power to "suspend its own
rules or to except a particular case from its operation, whenever the purposes of justice
require." 30-b Mr. Justice Barredo in his concurring opinion in Estrada vs. Sto. Domingo. 30-
c reiterated this principle and added that
Under this authority, this Court is enabled to cove with all situations without concerning itself
about procedural niceties that do not square with the need to do justice, in any case, without
further loss of time, provided that the right of the parties to a full day in court is not substantially
impaired. Thus, this Court may treat an appeal as a certiorari and vice-versa. In other words,
when all the material facts are spread in the records before Us, and all the parties have been
duly heard, it matters little that the error of the court a quo is of judgment or of jurisdiction. We
can then and there render the appropriate judgment. Is within the contemplation of this
doctrine that as it is perfectly legal and within the power of this Court to strike down in an
appeal acts without or in excess of jurisdiction or committed with grave abuse of discretion, it
cannot be beyond the admit of its authority, in appropriate cases, to reverse in a certain
proceed in any error of judgment of a court a quo which cannot be exactly categorized as a
flaw of jurisdiction. If there can be any doubt, which I do not entertain, on whether or not the
errors this Court has found in the decision of the Court of Appeals are short of being
jurisdiction nullities or excesses, this Court would still be on firm legal grounds should it choose
to reverse said decision here and now even if such errors can be considered as mere mistakes
of judgment or only as faults in the exercise of jurisdiction, so as to avoid the unnecessary
return of this case to the lower court for the sole purpose of pursuing the ordinary course of an
appeal. (Emphasis supplied). 30-d
Insistence on the application of the questioned Court industrial Relations rule in this particular
case at bar would an unreasoning adherence to "Procedural niceties" which denies justice to
the herein laborers, whose basic human freedoms, including the right to survive, must be
according supremacy over the property rights of their employer firm which has been given a
full hearing on this case, especially when, as in the case at bar, no actual material damage has
be demonstrated as having been inflicted on its property rights.
If We can disregard our own rules when justice requires it, obedience to the Constitution
renders more imperative the suspension of a Court of Industrial Relations rule that clash with
the human rights sanctioned and shielded with resolution concern by the specific guarantees
outlined in the organic law. It should be stressed that the application in the instant case Section
15 of the Court of Industrial Relations rules relied upon by herein respondent firm is
unreasonable and therefore such application becomes unconstitutional as it subverts the
human rights of petitioning labor union and workers in the light of the peculiar facts and
circumstances revealed by the record.
The suspension of the application of Section 15 of the Court of Industrial Relations rules with
reference to the case at is also authorized by Section 20 of Commonwealth Act No. 103, the
C.I.R. charter, which enjoins the Court of Industrial Relations to "act according to justice and
equity and substantial merits of the case, without regard to technicalities or legal forms ..."
On several occasions, We emphasized this doctrine which was re-stated by Mr. Justice
Barredo, speaking for the Court, in the 1970 case of Kapisanan, etc. vs. Hamilton, etc., et.
al., 30-e thus:
As to the point that the evidence being offered by the petitioners in the motion for new trial is
not "newly discovered," as such term is understood in the rules of procedure for the ordinary
courts, We hold that such criterion is not binding upon the Court of Industrial Relations. Under
Section 20 of Commonwealth Act No. 103, 'The Court of Industrial Relations shall adopt its,
rules or procedure and shall have such other powers as generally pertain to a court of justice:
Provided, however, That in the hearing, investigation and determination of any question or
controversy and in exercising any duties and power under this Act, the Court shall act
according to justice and equity and substantial merits of the case, without regard to
technicalities or legal forms and shall not be bound by any technical rules of legal evidence but
may inform its mind in such manner as it may deem just and equitable.' By this provision the
industrial court is disengaged from the rigidity of the technicalities applicable to ordinary courts.
Said court is not even restricted to the specific relief demanded by the parties but may issue
such orders as may be deemed necessary or expedient for the purpose of settling the dispute
or dispelling any doubts that may give rise to future disputes. (Ang Tibay v. C.I.R., G.R. No.
46496, Feb. 17, 1940; Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.) For these
reasons, We believe that this provision is ample enough to have enabled the respondent court
to consider whether or not its previous ruling that petitioners constitute a minority was founded
on fact, without regard to the technical meaning of newly discovered evidence. ... (Alonso v.
Villamor, 16 Phil. 315; Chua Kiong v. Whitaker, 46 Phil. 578). (emphasis supplied.)
To apply Section 15 of the Court of Industrial Relations rules with "pedantic rigor" in the instant
case is to rule in effect that the poor workers, who can ill-afford an alert competent lawyer, can
no longer seek the sanctuary of human freedoms secured to them by the fundamental law,
simply because their counsel — erroneously believing that he received a copy of the decision
on September 23, 1969, instead of September 22, 1969 - filed his motion for reconsideration
September 29, 1969, which practically is only one day late considering that September 28,
1969 was a Sunday.
Many a time, this Court deviated from procedure technicalities when they ceased to be
instruments of justice, for the attainment of which such rules have been devised. Summarizing
the jurisprudence on this score, Mr. Justice Fernando, speaking for a unanimous Court
in Palma vs. Oreta, 30-f Stated:
As was so aptly expressed by Justice Moreland in Alonso v. Villamor (16 Phil. 315 [1910]. The
Villamor decision was cited with approval in Register of Deeds v. Phil. Nat. Bank, 84 Phil. 600
[1949]; Potenciano v. Court of Appeals, 104 Phil. 156 [1958] and Uy v. Uy, 14243, June 30,
1961, 2 SCRA 675.), decided as far back as 1910, "technicality. when it deserts its proper-
office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant
consideration from courts." (Ibid., p, 322.) To that norm, this Court has remained committed.
The late Justice Recto in Blanco v. Bernabe, (63 Phil. 124 [1936]) was of a similar mind. For
him the interpretation of procedural rule should never "sacrifice the ends justice." While
"procedural laws are no other than technicalities" view them in their entirety, 'they were
adopted not as ends themselves for the compliance with which courts have organized and
function, but as means conducive to the realization the administration of the law and of justice
(Ibid., p.,128). We have remained steadfastly opposed, in the highly rhetorical language
Justice Felix, to "a sacrifice of substantial rights of a litigant in altar of sophisticated
technicalities with impairment of the sacred principles of justice." (Potenciano v. Court of
Appeals, 104 Phil. 156, 161 [1958]). As succinctly put by Justice Makalintal, they "should give
way to the realities of the situation." (Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA
1016, 1019). In the latest decision in point promulgated in 1968, (Udan v. Amon, (1968, 23
SCRA citing McEntee v. Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.) Justice Zaldivar was
partial to an earlier formulation of Justice Labrador that rules of procedure "are not to be
applied in a very rigid, technical sense"; but are intended "to help secure substantial justice."
(Ibid., p. 843)
Even if the questioned Court of Industrial Relations orders and rule were to be given effect, the
dismissal or termination of the employment of the petitioning eight (8) leaders of the Union is
harsh for a one-day absence from work. The respondent Court itself recognized the severity of
such a sanction when it did not include the dismissal of the other 393 employees who are
members of the same Union and who participated in the demonstration against the Pasig
police. As a matter of fact, upon the intercession of the Secretary of Labor, the Union members
who are not officers, were not dismissed and only the Union itself and its thirteen (13) officers
were specifically named as respondents in the unfair labor practice charge filed against them
by the firm (pp. 16-20, respondent's Brief; Annexes "A", "B" and "C", pp. 20-30, rec.). Counsel
for respondent firm insinuates that not all the 400 or so employee participated in the
demonstration, for which reason only the Union and its thirteen (13) officers were specifically
named in the unfair labor practice charge (p. 20, respondent's brief). If that were so, then
many, if not all, of the morning and regular shifts reported for work on March 4, 1969 and that,
as a consequence, the firm continued in operation that day and did not sustain any damage.
The appropriate penalty — if it deserves any penalty at all — should have been simply to
charge said one-day absence against their vacation or sick leave. But to dismiss the eight (8)
leaders of the petitioner Union is a most cruel penalty, since as aforestated the Union leaders
depend on their wages for their daily sustenance as well as that of their respective families
aside from the fact that it is a lethal blow to unionism, while at the same time strengthening the
oppressive hand of the petty tyrants in the localities.
Mr. Justice Douglas articulated this pointed reminder:
The challenge to our liberties comes frequently not from those who consciously seek to
destroy our system of Government, but from men of goodwill — good men who allow their
proper concerns to blind them to the fact that what they propose to accomplish involves an
impairment of liberty.
... The Motives of these men are often commendable. What we must remember, however, is
that preservation of liberties does not depend on motives. A suppression of liberty has the
same effect whether the suppress or be a reformer or an outlaw. The only protection against
misguided zeal is a constant alertness of the infractions of the guarantees of liberty contained
in our Constitution. Each surrender of liberty to the demands of the moment makes easier
another, larger surrender. The battle over the Bill of Rights is a never ending one.
... The liberties of any person are the liberties of all of us.
... In short, the Liberties of none are safe unless the liberties of all are protected.
... But even if we should sense no danger to our own liberties, even if we feel secure because
we belong to a group that is important and respected, we must recognize that our Bill of Rights
is a code of fair play for the less fortunate that we in all honor and good conscience must be
observe. 31
The case at bar is worse.
Management has shown not only lack of good-will or good intention, but a complete lack of
sympathetic understanding of the plight of its laborers who claim that they are being subjected
to indignities by the local police, It was more expedient for the firm to conserve its income or
profits than to assist its employees in their fight for their freedoms and security against alleged
petty tyrannies of local police officers. This is sheer opportunism. Such opportunism and
expediency resorted to by the respondent company assaulted the immunities and welfare of its
employees. It was pure and implement selfishness, if not greed.
Of happy relevance is the 1967 case of Republic Savings Bank vs. C.I.R., 32 where the
petitioner Bank dismissed eight (8) employees for having written and published "a patently
libelous letter ... to the Bank president demanding his resignation on the grounds of immorality,
nepotism in the appointment and favoritism as well as discrimination in the promotion of bank
employees." Therein, thru Mr. Justice Castro, We ruled:
It will avail the Bank none to gloat over this admission of the respondents. Assuming that the
latter acted in their individual capacities when they wrote the letter-charge they were
nonetheless protected for they were engaged in concerted activity, in the exercise of their right
of self organization that includes concerted activity for mutual aid and protection, (Section 3 of
the Industrial Peace Act ...) This is the view of some members of this Court. For, as has been
aptly stated, the joining in protests or demands, even by a small group of employees, if in
furtherance of their interests as such, is a concerted activity protected by the Industrial Peace
Act. It is not necessary that union activity be involved or that collective bargaining be
contemplated. (Annot., 6 A.L.R. 2d 416 [1949]).
5
Instead of stifling criticism, the Bank should have allowed the respondents to air their
grievances.

The Bank defends its action by invoking its right to discipline for what it calls the respondents'
libel in giving undue publicity to their letter-charge. To be sure, the right of self-organization of
employees is not unlimited (Republic Aviation Corp. vs. NLRB 324 U.S. 793 [1945]), as the
right of the employer to discharge for cause (Philippine Education Co. v. Union of Phil. Educ.
Employees, L-13773, April 29, 1960) is undenied. The Industrial Peace Act does not touch the
normal exercise of the right of the employer to select his employees or to discharge them. It is
directed solely against the abuse of that right by interfering with the countervailing right of self
organization (Phelps Dodge Corp. v. NLRB 313 U.S. 177 [1941])...

In the final sum and substance, this Court is in unanimity that the Bank's conduct, identified as
an interference with the employees' right of self-organization or as a retaliatory action, and/or
as a refusal to bargain collectively, constituted an unfair labor practice within the meaning and
intendment of section 4(a) of the Industrial Peace Act. (Emphasis supplied.) 33

If free expression was accorded recognition and protection to fortify labor unionism in the
Republic Savings case, supra, where the complaint assailed the morality and integrity of the
bank president no less, such recognition and protection for free speech, free assembly and
right to petition are rendered all the more justifiable and more imperative in the case at bar,
where the mass demonstration was not against the company nor any of its officers.

WHEREFORE, judgement is hereby rendered:

(1) setting aside as null and void the orders of the respondent Court of Industrial Relations
dated September 15 and October 9, 1969; and

(2) directing the re instatement of the herein eight (8) petitioners, with full back pay from the
date of their separation from the service until re instated, minus one day's pay and whatever
earnings they might have realized from other sources during their separation from the service.

6
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24693 July 31, 1967
ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL
MAR INC. and GO CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.
Panganiban, Abad and Associates Law Office for respondent-appellant.
J. M. Aruego, Tenchavez and Associates for intervenor-appellee.
FERNANDO, J.:
The principal question in this appeal from a judgment of the lower court in an action for
prohibition is whether Ordinance No. 4760 of the City of Manila is violative of the due process
clause. The lower court held that it is and adjudged it "unconstitutional, and, therefore, null and
void." For reasons to be more specifically set forth, such judgment must be reversed, there
being a failure of the requisite showing to sustain an attack against its validity.
The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the
petitioners, Ermita-Malate Hotel and Motel Operators Association, one of its members, Hotel
del Mar Inc., and a certain Go Chiu, who is "the president and general manager of the second
petitioner" against the respondent Mayor of the City of Manila who was sued in his capacity as
such "charged with the general power and duty to enforce ordinances of the City of Manila and
to give the necessary orders for the faithful execution and enforcement of such ordinances."
(par. 1). It was alleged that the petitioner non-stock corporation is dedicated to the promotion
and protection of the interest of its eighteen (18) members "operating hotels and motels,
characterized as legitimate businesses duly licensed by both national and city authorities,
regularly paying taxes, employing and giving livelihood to not less than 2,500 person and
representing an investment of more than P3 million." 1 (par. 2). It was then alleged that on June
13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, approved on
June 14, 1963 by the then Vice-Mayor Herminio Astorga, who was at the time acting as Mayor
of the City of Manila. (par. 3).
After which the alleged grievances against the ordinance were set forth in detail. There was
the assertion of its being beyond the powers of the Municipal Board of the City of Manila to
enact insofar as it would regulate motels, on the ground that in the revised charter of the City
of Manila or in any other law, no reference is made to motels; that Section 1 of the challenged
ordinance is unconstitutional and void for being unreasonable and violative of due process
insofar as it would impose P6,000.00 fee per annum for first class motels and P4,500.00 for
second class motels; that the provision in the same section which would require the owner,
manager, keeper or duly authorized representative of a hotel, motel, or lodging house to refrain
from entertaining or accepting any guest or customer or letting any room or other quarter to
any person or persons without his filling up the prescribed form in a lobby open to public view
at all times and in his presence, wherein the surname, given name and middle name, the date
of birth, the address, the occupation, the sex, the nationality, the length of stay and the number
of companions in the room, if any, with the name, relationship, age and sex would be specified,
with data furnished as to his residence certificate as well as his passport number, if any,
coupled with a certification that a person signing such form has personally filled it up and
affixed his signature in the presence of such owner, manager, keeper or duly authorized
representative, with such registration forms and records kept and bound together, it also being
provided that the premises and facilities of such hotels, motels and lodging houses would be
open for inspection either by the City Mayor, or the Chief of Police, or their duly authorized
representatives is unconstitutional and void again on due process grounds, not only for being
arbitrary, unreasonable or oppressive but also for being vague, indefinite and uncertain, and
likewise for the alleged invasion of the right to privacy and the guaranty against self-
incrimination; that Section 2 of the challenged ordinance classifying motels into two classes
and requiring the maintenance of certain minimum facilities in first class motels such as a
telephone in each room, a dining room or, restaurant and laundry similarly offends against the
due process clause for being arbitrary, unreasonable and oppressive, a conclusion which
applies to the portion of the ordinance requiring second class motels to have a dining room;
that the provision of Section 2 of the challenged ordinance prohibiting a person less than 18
years old from being accepted in such hotels, motels, lodging houses, tavern or common inn
unless accompanied by parents or a lawful guardian and making it unlawful for the owner,
manager, keeper or duly authorized representative of such establishments to lease any room
or portion thereof more than twice every 24 hours, runs counter to the due process guaranty
for lack of certainty and for its unreasonable, arbitrary and oppressive character; and that
insofar as the penalty provided for in Section 4 of the challenged ordinance for a subsequent
conviction would, cause the automatic cancellation of the license of the offended party, in
effect causing the destruction of the business and loss of its investments, there is once again a
transgression of the due process clause.
There was a plea for the issuance of preliminary injunction and for a final judgment declaring
the above ordinance null and void and unenforceable. The lower court on July 6, 1963 issued
a writ of preliminary injunction ordering respondent Mayor to refrain from enforcing said
Ordinance No. 4760 from and after July 8, 1963.
In the a answer filed on August 3, 1963, there was an admission of the personal circumstances
regarding the respondent Mayor and of the fact that petitioners are licensed to engage in the
hotel or motel business in the City of Manila, of the provisions of the cited Ordinance but a
denial of its alleged nullity, whether on statutory or constitutional grounds. After setting forth
that the petition did fail to state a cause of action and that the challenged ordinance bears a
reasonable relation, to a proper purpose, which is to curb immorality, a valid and proper
exercise of the police power and that only the guests or customers not before the court could
complain of the alleged invasion of the right to privacy and the guaranty against self
incrimination, with the assertion that the issuance of the preliminary injunction ex parte was
contrary to law, respondent Mayor prayed for, its dissolution and the dismissal of the petition.
Instead of evidence being offered by both parties, there was submitted a stipulation of facts
dated September 28, 1964, which reads:
1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and Hotel del
Mar Inc. are duly organized and existing under the laws of the Philippines, both with offices in
the City of Manila, while the petitioner Go Chin is the president and general manager of Hotel
del Mar Inc., and the intervenor Victor Alabanza is a resident of Baguio City, all having the
capacity to sue and be sued;
2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief
executive of the City of Manila charged with the general power and duty to enforce ordinances
of the City of Manila and to give the necessary orders for the faithful execution and
enforcement of such ordinances;
3. That the petitioners are duly licensed to engage in the business of operating hotels and
motels in Malate and Ermita districts in Manila;
4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No.
4760, which was approved on June 14, 1963, by Vice-Mayor Herminio Astorga, then the acting
City Mayor of Manila, in the absence of the respondent regular City Mayor, amending sections
661, 662, 668-a, 668-b and 669 of the compilation of the ordinances of the City of Manila
besides inserting therein three new sections. This ordinance is similar to the one vetoed by the
respondent Mayor (Annex A) for the reasons stated in its 4th Indorsement dated February 15,
1963 (Annex B);
5. That the explanatory note signed by then Councilor Herminio Astorga was submitted with
the proposed ordinance (now Ordinance 4760) to the Municipal Board, copy of which is
attached hereto as Annex C;
6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license fees
paid by the 105 hotels and motels (including herein petitioners) operating in the City of
Manila.1äwphï1.ñët
Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was laid
on the presumption of the validity of the challenged ordinance, the burden of showing its lack
of conformity to the Constitution resting on the party who assails it, citing not only U.S. v.
Salaveria, but likewise applicable American authorities. Such a memorandum likewise refuted
point by point the arguments advanced by petitioners against its validity. Then barely two
weeks later, on February 4, 1965, the memorandum for petitioners was filed reiterating in detail
what was set forth in the petition, with citations of what they considered to be applicable
American authorities and praying for a judgment declaring the challenged ordinance "null and
void and unenforceable" and making permanent the writ of preliminary injunction issued.
After referring to the motels and hotels, which are members of the petitioners association, and
referring to the alleged constitutional questions raised by the party, the lower court observed:
"The only remaining issue here being purely a question of law, the parties, with the nod of the
Court, agreed to file memoranda and thereafter, to submit the case for decision of the Court." It
does appear obvious then that without any evidence submitted by the parties, the decision
passed upon the alleged infirmity on constitutional grounds of the challenged ordinance,
dismissing as is undoubtedly right and proper the untenable objection on the alleged lack of
authority of the City of Manila to regulate motels, and came to the conclusion that "the
challenged Ordinance No. 4760 of the City of Manila, would be unconstitutional and, therefore,
null and void." It made permanent the preliminary injunction issued against respondent Mayor
and his agents "to restrain him from enforcing the ordinance in question." Hence this appeal.
As noted at the outset, the judgment must be reversed. A decent regard for constitutional
doctrines of a fundamental character ought to have admonished the lower court against such a
sweeping condemnation of the challenged ordinance. Its decision cannot be allowed to stand,
consistently with what has hitherto been the accepted standards of constitutional adjudication,
in both procedural and substantive aspects.
Primarily what calls for a reversal of such a decision is the absence of any evidence to offset
the presumption of validity that attaches to a challenged statute or ordinance. As was
expressed categorically by Justice Malcolm: "The presumption is all in favor of validity x x x .
The action of the elected representatives of the people cannot be lightly set aside. The
councilors must, in the very nature of things, be familiar with the necessities of their particular
municipality and with all the facts and circumstances which surround the subject and
necessitate action. The local legislative body, by enacting the ordinance, has in effect given
notice that the regulations are essential to the well being of the people x x x . The Judiciary
should not lightly set aside legislative action when there is not a clear invasion of personal or
property rights under the guise of police regulation. 2
It admits of no doubt therefore that there being a presumption of validity, the necessity for
evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face which is
not the case here. The principle has been nowhere better expressed than in the leading case
of O'Gorman & Young v. Hartford Fire Insurance Co.,3 where the American Supreme Court
through Justice Brandeis tersely and succinctly summed up the matter thus: The statute here
questioned deals with a subject clearly within the scope of the police power. We are asked to
declare it void on the ground that the specific method of regulation prescribed is unreasonable
and hence deprives the plaintiff of due process of law. As underlying questions of fact may
condition the constitutionality of legislation of this character, the resumption of constitutionality
must prevail in the absence of some factual foundation of record for overthrowing the statute."
No such factual foundation being laid in the present case, the lower court deciding the matter
on the pleadings and the stipulation of facts, the presumption of validity must prevail and the
judgment against the ordinance set aside.
Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as
being repugnant to the due process clause of the Constitution. The mantle of protection
associated with the due process guaranty does not cover petitioners. This particular
manifestation of a police power measure being specifically aimed to safeguard public morals is
immune from such imputation of nullity resting purely on conjecture and unsupported by
anything of substance. To hold otherwise would be to unduly restrict and narrow the scope of
police power which has been properly characterized as the most essential, insistent and the
least limitable of powers,4 extending as it does "to all the great public needs." 5 It would be, to
paraphrase another leading decision, to destroy the very purpose of the state if it could be
deprived or allowed itself to be deprived of its competence to promote public health, public
morals, public safety and the genera welfare.6 Negatively put, police power is "that inherent
and plenary power in the State which enables it to prohibit all that is hurt full to the comfort,
safety, and welfare of society.7
There is no question but that the challenged ordinance was precisely enacted to minimize
certain practices hurtful to public morals. The explanatory note of the Councilor Herminio
Astorga included as annex to the stipulation of facts, speaks of the alarming increase in the
rate of prostitution, adultery and fornication in Manila traceable in great part to the existence of
motels, which "provide a necessary atmosphere for clandestine entry, presence and exit" and
thus become the "ideal haven for prostitutes and thrill-seekers." The challenged ordinance
then proposes to check the clandestine harboring of transients and guests of these
establishments by requiring these transients and guests to fill up a registration form, prepared
for the purpose, in a lobby open to public view at all times, and by introducing several other
amendatory provisions calculated to shatter the privacy that characterizes the registration of
transients and guests." Moreover, the increase in the licensed fees was intended to discourage
"establishments of the kind from operating for purpose other than legal" and at the same time,
to increase "the income of the city government." It would appear therefore that the stipulation
of facts, far from sustaining any attack against the validity of the ordinance, argues eloquently
for it.
It is a fact worth noting that this Court has invariably stamped with the seal of its approval,
ordinances punishing vagrancy and classifying a pimp or procurer as a vagrant; 8 provide a
license tax for and regulating the maintenance or operation of public dance halls;9 prohibiting
gambling;10 prohibiting jueteng;11 and monte;12 prohibiting playing of panguingui on days other
than Sundays or legal holidays;13 prohibiting the operation of pinball machines; 14 and
prohibiting any person from keeping, conducting or maintaining an opium joint or visiting a
place where opium is smoked or otherwise used, 15 all of which are intended to protect public
morals.
On the legislative organs of the government, whether national or local, primarily rest the
exercise of the police power, which, it cannot be too often emphasized, is the power to
prescribe regulations to promote the health, morals, peace, good order, safety and general
welfare of the people. In view of the requirements of due process, equal protection and other
applicable constitutional guaranties however, the exercise of such police power insofar as it
may affect the life, liberty or property of any person is subject to judicial inquiry. Where such
exercise of police power may be considered as either capricious, whimsical, unjust or
unreasonable, a denial of due process or a violation of any other applicable constitutional
guaranty may call for correction by the courts.
We are thus led to considering the insistent, almost shrill tone, in which the objection is raised
16
to the question of due process. There is no controlling and precise definition of due process.
It furnishes though a standard to which the governmental action should conform in order that
deprivation of life, liberty or property, in each appropriate case, be valid. What then is the
standard of due process which must exist both as a procedural and a substantive requisite to
free the challenged ordinance, or any governmental action for that matter, from the imputation
7
of legal infirmity sufficient to spell its doom? It is responsiveness to the supremacy of reason,
obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness
avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must
not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to
any official action marred by lack of reasonableness. Correctly it has been identified as
freedom from arbitrariness. It is the embodiment of the sporting idea of fair play.17 It exacts
fealty "to those strivings for justice" and judges the act of officialdom of whatever branch "in the
light of reason drawn from considerations of fairness that reflect [democratic] traditions of legal
and political thought."18 It is not a narrow or "technical conception with fixed content unrelated
19
to time, place and circumstances," decisions based on such a clause requiring a "close and
perceptive inquiry into fundamental principles of our society." 20 Questions of due process are
not to be treated narrowly or pedantically in slavery to form or phrases. 21
It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet what
a municipal lawmaking body considers an evil of rather serious proportion an arbitrary and
capricious exercise of authority. It would seem that what should be deemed unreasonable and
what would amount to an abdication of the power to govern is inaction in the face of an
admitted deterioration of the state of public morals. To be more specific, the Municipal Board of
the City of Manila felt the need for a remedial measure. It provided it with the enactment of the
challenged ordinance. A strong case must be found in the records, and, as has been set forth,
none is even attempted here to attach to an ordinance of such character the taint of nullity for
an alleged failure to meet the due process requirement. Nor does it lend any semblance even
of deceptive plausibility to petitioners' indictment of Ordinance No. 4760 on due process
grounds to single out such features as the increased fees for motels and hotels, the
curtailment of the area of freedom to contract, and, in certain particulars, its alleged
vagueness.
to whether the "full rate of payment" to be charged for every such lease thereof means a full
day's or merely a half-day's rate. It may be asked, do these allegations suffice to render the
ordinance void on its face for alleged vagueness or uncertainty? To ask the question is to
answer it. From Connally v. General Construction Co.33 to Adderley v. Florida,34 the principle
has been consistently upheld that what makes a statute susceptible to such a charge is an
enactment either forbidding or requiring the doing of an act that men of common intelligence
must necessarily guess at its meaning and differ as to its application. Is this the situation
before us? A citation from Justice Holmes would prove illuminating: "We agree to all the
generalities about not supplying criminal laws with what they omit but there is no canon against
35
using common sense in construing laws as saying what they obviously mean."
That is all then that this case presents. As it stands, with all due allowance for the arguments
pressed with such vigor and determination, the attack against the validity of the challenged
ordinance cannot be considered a success. Far from it. Respect for constitutional law
principles so uniformly held and so uninterruptedly adhered to by this Court compels a reversal
of the appealed decision.
Wherefore, the judgment of the lower court is reversed and the injunction issued lifted
forthwith. With costs.

Admittedly there was a decided increase of the annual license fees provided for by the
challenged ordinance for hotels and motels, 150% for the former and over 200% for the latter,
first-class motels being required to pay a P6,000 annual fee and second-class motels, P4,500
yearly. It has been the settled law however, as far back as 1922 that municipal license fees
could be classified into those imposed for regulating occupations or regular enterprises, for the
regulation or restriction of non-useful occupations or enterprises and for revenue purposes
only.22 As was explained more in detail in the above Cu Unjieng case: (2) Licenses for non-
useful occupations are also incidental to the police power and the right to exact a fee may be
implied from the power to license and regulate, but in fixing amount of the license fees the
municipal corporations are allowed a much wider discretion in this class of cases than in the
former, and aside from applying the well-known legal principle that municipal ordinances must
not be unreasonable, oppressive, or tyrannical, courts have, as a general rule, declined to
interfere with such discretion. The desirability of imposing restraint upon the number of
persons who might otherwise engage in non-useful enterprises is, of course, generally an
important factor in the determination of the amount of this kind of license fee. Hence license
fees clearly in the nature of privilege taxes for revenue have frequently been upheld, especially
in of licenses for the sale of liquors. In fact, in the latter cases the fees have rarely been
declared unreasonable.23

Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine
earlier announced by the American Supreme Court that taxation may be made to implement
the state's police power. Only the other day, this Court had occasion to affirm that the broad
taxing authority conferred by the Local Autonomy Act of 1959 to cities and municipalities is
sufficiently plenary to cover a wide range of subjects with the only limitation that the tax so
levied is for public purposes, just and uniform.25

As a matter of fact, even without reference to the wide latitude enjoyed by the City of Manila in
imposing licenses for revenue, it has been explicitly held in one case that "much discretion is
given to municipal corporations in determining the amount," here the license fee of the
operator of a massage clinic, even if it were viewed purely as a police power measure. 26 The
discussion of this particular matter may fitly close with this pertinent citation from another
decision of significance: "It is urged on behalf of the plaintiffs-appellees that the enforcement of
the ordinance could deprive them of their lawful occupation and means of livelihood because
they can not rent stalls in the public markets. But it appears that plaintiffs are also dealers in
refrigerated or cold storage meat, the sale of which outside the city markets under certain
conditions is permitted x x x . And surely, the mere fact, that some individuals in the community
may be deprived of their present business or a particular mode of earning a living cannot
prevent the exercise of the police power. As was said in a case, persons licensed to pursue
occupations which may in the public need and interest be affected by the exercise of the police
power embark in these occupations subject to the disadvantages which may result from the
legal exercise of that power."27

Nor does the restriction on the freedom to contract, insofar as the challenged ordinance makes
it unlawful for the owner, manager, keeper or duly authorized representative of any hotel,
motel, lodging house, tavern, common inn or the like, to lease or rent room or portion thereof
more than twice every 24 hours, with a proviso that in all cases full payment shall be charged,
call for a different conclusion. Again, such a limitation cannot be viewed as a transgression
against the command of due process. It is neither unreasonable nor arbitrary. Precisely it was
intended to curb the opportunity for the immoral or illegitimate use to which such premises
could be, and, according to the explanatory note, are being devoted. How could it then be
arbitrary or oppressive when there appears a correspondence between the undeniable
existence of an undesirable situation and the legislative attempt at correction. Moreover,
petitioners cannot be unaware that every regulation of conduct amounts to curtailment of
liberty which as pointed out by Justice Malcolm cannot be absolute. Thus: "One thought which
runs through all these different conceptions of liberty is plainly apparent. It is this: 'Liberty' as
understood in democracies, is not license; it is 'liberty regulated by law.' Implied in the term is
restraint by law for the good of the individual and for the greater good of the peace and order
of society and the general well-being. No man can do exactly as he pleases. Every man must
renounce unbridled license. The right of the individual is necessarily subject to reasonable
restraint by general law for the common good x x x The liberty of the citizen may be restrained
in the interest of the public health, or of the public order and safety, or otherwise within the
proper scope of the police power."28

A similar observation was made by Justice Laurel: "Public welfare, then, lies at the bottom of
the enactment of said law, and the state in order to promote the general welfare may interfere
with personal liberty, with property, and with business and occupations. Persons and property
may be subjected to all kinds of restraints and burdens, in order to secure the general comfort,
health, and prosperity of the state x x x To this fundamental aim of our Government the rights
of the individual are subordinated. Liberty is a blessing without which life is a misery, but liberty
should not be made to prevail over authority because then society will fall into anarchy. Neither
should authority be made to prevail over liberty because then the individual will fall into slavery.
The citizen should achieve the required balance of liberty and authority in his mind through
education and personal discipline, so that there may be established the resultant equilibrium,
which means peace and order and happiness for all. 29

It is noteworthy that the only decision of this Court nullifying legislation because of undue
deprivation of freedom to contract, People v. Pomar,30 no longer "retains its virtuality as a living
principle. The policy of laissez faire has to some extent given way to the assumption by the
government of the right of intervention even in contractual relations affected with public
interest.31 What may be stressed sufficiently is that if the liberty involved were freedom of the
mind or the person, the standard for the validity of governmental acts is much more rigorous
and exacting, but where the liberty curtailed affects at the most rights of property, the
permissible scope of regulatory measure is wider.32 How justify then the allegation of a denial
of due process?

Lastly, there is the attempt to impugn the ordinance on another due process ground by
invoking the principles of vagueness or uncertainty. It would appear from a recital in the
petition itself that what seems to be the gravamen of the alleged grievance is that the
provisions are too detailed and specific rather than vague or uncertain. Petitioners, however,
point to the requirement that a guest should give the name, relationship, age and sex of the
companion or companions as indefinite and uncertain in view of the necessity for determining
whether the companion or companions referred to are those arriving with the customer or
guest at the time of the registry or entering the room With him at about the same time or
coming at any indefinite time later to join him; a proviso in one of its sections which cast doubt
as to whether the maintenance of a restaurant in a motel is dependent upon the discretion of
its owners or operators; another proviso which from their standpoint would require a guess as

8
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-42571-72 July 25, 1983
VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO CORPUZ,
TERESITA CALOT, ROSALIA FERNANDEZ, ELIZABETH VELASCO, NANETTE
VILLANUEVA, HONORATO BUENAVENTURA, RUBEN DE CASTRO, VICENTE ROXAS,
RICARDO DAMIAN, DOMDINO ROMDINA, ANGELINA OBLIGACION, CONRADO
GREGORIO, TEODORO REYES, LYDIA ATRACTIVO, NAPOLEON MENDOZA,
PERFECTO GUMATAY, ANDRES SABANGAN, ROSITA DURAN, SOCORRO
BERNARDEZ, and PEDRO GABRIEL, petitioners,
vs.
THE HONORABLE EDGARDO L. PARAS, MATIAS RAMIREZ as the Municipal Mayor,
MARIO MENDOZA as the Municipal Vice-Mayor, and THE MUNICIPAL COUNCIL OF
BOCAUE, BULACAN, respondents.
Federico N. Alday for petitioners.
Dakila F. Castro for respondents.
FERNANDO, C.J.:
The crucial question posed by this certiorari proceeding is whether or not a municipal
corporation, Bocaue, Bulacan, represented by respondents, 1 can, prohibit the exercise of a
lawful trade, the operation of night clubs, and the pursuit of a lawful occupation, such clubs
employing hostesses. It is contended that the ordinance assailed as invalid is tainted with
nullity, the municipality being devoid of power to prohibit a lawful business, occupation or
calling, petitioners at the same time alleging that their rights to due process and equal
protection of the laws were violated as the licenses previously given to them was in effect
withdrawn without judicial hearing. 2
The assailed ordinance 3 is worded as follows: "Section 1.— Title of Ordinance.— This
Ordinance shall be known and may be cited as the [Prohibition and Closure Ordinance] of
Bocaue, Bulacan. Section 2. — Definitions of Terms — (a) 'Night Club' shall include any place
or establishment selling to the public food or drinks where customers are allowed to dance. (b)
'Cabaret' or 'Dance Hall' shall include any place or establishment where dancing is permitted to
the public and where professional hostesses or hospitality girls and professional dancers are
employed. (c) 'Professional hostesses' or 'hospitality girls' shall include any woman employed
by any of the establishments herein defined to entertain guests and customers at their table or
to dance with them. (d) 'Professional dancer' shall include any woman who dances at any of
the establishments herein defined for a fee or remuneration paid directly or indirectly by the
operator or by the persons she dances with. (e) 'Operator' shall include the owner, manager,
administrator or any person who operates and is responsible for the operation of any night
club, cabaret or dance hall. Section 3. — Prohibition in the Issuance and Renewal of Licenses,
Permits. — Being the principal cause in the decadence of morality and because of their other
adverse effects on this community as explained above, no operator of night clubs, cabarets or
dance halls shall henceforth be issued permits/licenses to operate within the jurisdiction of the
municipality and no license/permit shall be issued to any professional hostess, hospitality girls
and professional dancer for employment in any of the aforementioned establishments. The
prohibition in the issuance of licenses/permits to said persons and operators of said
establishments shall include prohibition in the renewal thereof. Section 4.— Revocation of
Permits and Licenses.— The licenses and permits issued to operators of night clubs, cabarets
or dance halls which are now in operation including permits issued to professional hostesses,
hospitality girls and professional dancers are hereby revoked upon the expiration of the thirty-
day period given them as provided in Section 8 hereof and thenceforth, the operation of these
establishments within the jurisdiction of the municipality shall be illegal. Section 5.— Penalty in
case of violation. — Violation of any of the provisions of this Ordinance shall be punishable by
imprisonment not exceeding three (3) months or a fine not exceeding P200.00 or both at the
discretion of the Court. If the offense is committed by a juridical entity, the person charged with
the management and/or operation thereof shall be liable for the penalty provided herein.
Section 6. — Separability Clause.— If, for any reason, any section or provision of this
Ordinance is held unconstitutional or invalid, no other section or provision hereof shall be
affected thereby. Section 7.— Repealing Clause.— All ordinance, resolutions, circulars,
memoranda or parts thereof that are inconsistent with the provisions of this Ordinance are
hereby repealed. Section 8.— Effectivity.— This Ordinance shall take effect immediately upon
its approval; provided, however, that operators of night clubs, cabarets and dance halls now in
operation including professional hostesses, hospitality girls and professional dancers are given
a period of thirty days from the approval hereof within which to wind up their businesses and
comply with the provisions of this Ordinance." 4
On November 5, 1975, two cases for prohibition with preliminary injunction were filed with the
Court of First Instance of Bulacan. 5 The grounds alleged follow:
1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a lawful
business, occupation or calling.
2. Ordinance No. 84 is violative of the petitioners' right to due process and the equal protection
of the law, as the license previously given to petitioners was in effect withdrawn without judicial
hearing. 3. That under Presidential Decree No. 189, as amended, by Presidential Decree No.
259, the power to license and regulate tourist-oriented businesses including night clubs, has
been transferred to the Department of Tourism." 6 The cases were assigned to respondent
Judge, now Associate Justice Paras of the Intermediate Appellate Court, who issued a
restraining order on November 7, 1975. The answers were thereafter filed. It was therein
alleged: " 1. That the Municipal Council is authorized by law not only to regulate but to prohibit
the establishment, maintenance and operation of night clubs invoking Section 2243 of the
RAC, CA 601, Republic Acts Nos. 938, 978 and 1224. 2. The Ordinance No. 84 is not violative
of petitioners' right to due process and the equal protection of the law, since property rights are
subordinate to public interests. 3. That Presidential Decree No. 189, as amended, did not
deprive Municipal Councils of their jurisdiction to regulate or prohibit night clubs." 7 There was
the admission of the following facts as having been established: "l. That petitioners Vicente de
la Cruz, et al. in Civil Case No. 4755-M had been previously issued licenses by the Municipal
Mayor of Bocaue-petitioner Jose Torres III, since 1958; petitioner Vicente de la Cruz, since
1960; petitioner Renato Alipio, since 1961 and petitioner Leoncio Corpuz, since 1972; 2. That
petitioners had invested large sums of money in their businesses; 3. That the night clubs are
well-lighted and have no partitions, the tables being near each other; 4. That the petitioners
owners/operators of these clubs do not allow the hospitality girls therein to engage in immoral
acts and to go out with customers; 5. That these hospitality girls are made to go through
periodic medical check-ups and not one of them is suffering from any venereal disease and
that those who fail to submit to a medical check-up or those who are found to be infected with
venereal disease are not allowed to work; 6. That the crime rate there is better than in other
parts of Bocaue or in other towns of Bulacan." 8 Then came on January 15, 1976 the decision
upholding the constitutionality and validity of Ordinance No. 84 and dismissing the cases.
Hence this petition for certiorari by way of appeal.
In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its
rationale is set forth in the opening paragraph thus: "Those who lust cannot last. This in
essence is why the Municipality of Bocaue, Province of Bulacan, stigmatized as it has been by
innuendos of sexual titillation and fearful of what the awesome future holds for it, had no
alternative except to order thru its legislative machinery, and even at the risk of partial
economic dislocation, the closure of its night clubs and/or cabarets. This in essence is also
why this Court, obedient to the mandates of good government, and cognizant of the
categorical imperatives of the current legal and social revolution, hereby [upholds] in the name
of police power the validity and constitutionality of Ordinance No. 84, Series of 1975, of the
Municipal Council of Bocaue, Bulacan. The restraining orders heretofore issued in these two
cases are therefore hereby rifted, effective the first day of February, 1976, the purpose of the
grace period being to enable the petitioners herein to apply to the proper appellate tribunals for
any contemplated redress."9 This Court is, however, unable to agree with such a conclusion
and for reasons herein set forth, holds that reliance on the police power is insufficient to justify
the enactment of the assailed ordinance. It must be declared null and void.
1. Police power is granted to municipal corporations in general terms as follows: "General
power of council to enact ordinances and make regulations. - The municipal council shall enact
such ordinances and make such regulations, not repugnant to law, as may be necessary to
carry into effect and discharge the powers and duties conferred upon it by law and such as
shall seem necessary and proper to provide for the health and safety, promote the prosperity,
improve the morals, peace, good order, comfort, and convenience of the municipality and the
inhabitants thereof, and for the protection of property therein." 10 It is practically a reproduction
of the former Section 39 of Municipal Code.11 An ordinance enacted by virtue thereof,
according to Justice Moreland, speaking for the Court in the leading case of United States v.
Abendan 12 "is valid, unless it contravenes the fundamental law of the Philippine Islands, or an
Act of the Philippine Legislature, or unless it is against public policy, or is unreasonable,
oppressive, partial, discriminating, or in derogation of common right. Where the power to
legislate upon a given subject, and the mode of its exercise and the details of such legislation
are not prescribed, the ordinance passed pursuant thereto must be a reasonable exercise of
the power, or it will be pronounced invalid." 13 In another leading case, United States v.
Salaveria, 14 the ponente this time being Justice Malcolm, where the present Administrative
Code provision was applied, it was stated by this Court: "The general welfare clause has two
branches: One branch attaches itself to the main trunk of municipal authority, and relates to
such ordinances and regulations as may be necessary to carry into effect and discharge the
powers and duties conferred upon the municipal council by law. With this class we are not here
directly concerned. The second branch of the clause is much more independent of the specific
functions of the council which are enumerated by law. It authorizes such ordinances as shall
seem necessary and proper to provide for the health and safety, promote the prosperity,
improve the morals, peace, good order, comfort, and convenience of the municipality and the
inhabitants thereof, and for the protection of property therein.' It is a general rule that
ordinances passed by virtue of the implied power found in the general welfare clause must be
reasonable, consonant with the general powersand purposes of the corporation, and not
inconsistent with the laws or policy of the State." 15 If night clubs were merely then regulated
and not prohibited, certainly the assailed ordinance would pass the test of validity. In the two
leading cases above set forth, this Court had stressed reasonableness, consonant with the
general powers and purposes of municipal corporations, as well as consistency with the laws
or policy of the State. It cannot be said that such a sweeping exercise of a lawmaking power by
Bocaue could qualify under the term reasonable. The objective of fostering public morals, a
worthy and desirable end can be attained by a measure that does not encompass too wide a
field. Certainly the ordinance on its face is characterized by overbreadth. The purpose sought
to be achieved could have been attained by reasonable restrictions rather than by an absolute
prohibition. The admonition in Salaveria should be heeded: "The Judiciary should not lightly set
aside legislative action when there is not a clear invasion of personal or property rights under
the guise of police regulation." 16 It is clear that in the guise of a police regulation, there was in
this instance a clear invasion of personal or property rights, personal in the case of those
individuals desirous of patronizing those night clubs and property in terms of the investments
made and salaries to be earned by those therein employed.
2. The decision now under review refers to Republic Act No. 938 as amended. 17 It was
originally enacted on June 20, 1953. It is entitled: "AN ACT GRANTING MUNICIPAL OR CITY
BOARDS AND COUNCILS THE POWER TO REGULATE THE ESTABLISHMENT,
MAINTENANCE AND OPERATION OF CERTAIN PLACES OF AMUSEMENT WITHIN THEIR
RESPECTIVE TERRITORIAL JURISDICTIONS.' 18 Its first section insofar as pertinent reads:
"The municipal or city board or council of each chartered city shall have the power to regulate
by ordinance the establishment, maintenance and operation of night clubs, cabarets, dancing
schools, pavilions, cockpits, bars, saloons, bowling alleys, billiard pools, and other similar
places of amusement within its territorial jurisdiction: ... " 19 Then on May 21, 1954, the first
section was amended to include not merely "the power to regulate, but likewise "Prohibit ...
" 20 The title, however, remained the same. It is worded exactly as Republic Act No. 938. It is to
be admitted that as thus amended, if only the above portion of the Act were considered, a
municipal council may go as far as to prohibit the operation of night clubs. If that were all, then
the appealed decision is not devoid of support in law. That is not all, however. The title was not
in any way altered. It was not changed one whit. The exact wording was followed. The power
granted remains that of regulation, not prohibition. There is thus support for the view advanced
by petitioners that to construe Republic Act No. 938 as allowing the prohibition of the operation
of night clubs would give rise to a constitutional question. The Constitution mandates: "Every
bill shall embrace only one subject which shall be expressed in the title thereof. " 21 Since there
is no dispute as the title limits the power to regulating, not prohibiting, it would result in the
statute being invalid if, as was done by the Municipality of Bocaue, the operation of a night club
was prohibited. There is a wide gap between the exercise of a regulatory power "to provide for
the health and safety, promote the prosperity, improve the morals, 22 in the language of the
Administrative Code, such competence extending to all "the great public needs, 23 to quote
from Holmes, and to interdict any calling, occupation, or enterprise. In accordance with the
well-settled principle of constitutional construction that between two possible interpretations by
one of which it will be free from constitutional infirmity and by the other tainted by such grave
defect, the former is to be preferred. A construction that would save rather than one that would
affix the seal of doom certainly commends itself. We have done so before We do so again. 24
3. There is reinforcement to the conclusion reached by virtue of a specific provision of the
recently-enacted Local Government Code. 25 The general welfare clause, a reiteration of the
Administrative Code provision, is set forth in the first paragraph of Section 149 defining the
powers and duties of the sangguniang bayan. It read as follows: "(a) Enact such ordinances
and issue such regulations as may be necessary to carry out and discharge the responsibilities
conferred upon it by law, and such as shall be necessary and proper to provide for the health,
safety, comfort and convenience, maintain peace and order, improve public morals, promote
the prosperity and general welfare of the municipality and the inhabitants thereof, and insure
the protection of property therein; ..." 26 There are in addition provisions that may have a
bearing on the question now before this Court. Thus the sangguniang bayan shall "(rr)
Regulate cafes, restaurants, beer-houses, hotels, motels, inns, pension houses and lodging
houses, except travel agencies, tourist guides, tourist transports, hotels, resorts, de luxe
restaurants, and tourist inns of international standards which shall remain under the licensing
and regulatory power of the Ministry of Tourism which shall exercise such authority without
infringing on the taxing or regulatory powers of the municipality; (ss) Regulate public dancing
schools, public dance halls, and sauna baths or massage parlors; (tt) Regulate the
establishment and operation of billiard pools, theatrical performances, circuses and other
forms of entertainment; ..." 27 It is clear that municipal corporations cannot prohibit the
operation of night clubs. They may be regulated, but not prevented from carrying on their
business. It would be, therefore, an exercise in futility if the decision under review were
sustained. All that petitioners would have to do is to apply once more for licenses to operate
night clubs. A refusal to grant licenses, because no such businesses could legally open, would
be subject to judicial correction. That is to comply with the legislative will to allow the operation
and continued existence of night clubs subject to appropriate regulations. In the meanwhile, to
compel petitioners to close their establishments, the necessary result of an affirmance, would
amount to no more than a temporary termination of their business. During such time, their
employees would undergo a period of deprivation. Certainly, if such an undesirable outcome
can be avoided, it should be. The law should not be susceptible to the reproach that it displays
less than sympathetic concern for the plight of those who, under a mistaken appreciation of a
municipal power, were thus left without employment. Such a deplorable consequence is to be
avoided. If it were not thus, then the element of arbitrariness enters the picture. That is to pay
less, very much less, than full deference to the due process clause with its mandate of fairness
and reasonableness.
4. The conclusion reached by this Court is not to be interpreted as a retreat from its resolute
stand sustaining police power legislation to promote public morals. The commitment to such an
Ideal forbids such a backward step. Legislation of that character is deserving of the fullest
sympathy from the judiciary. Accordingly, the judiciary has not been hesitant to lend the weight
of its support to measures that can be characterized as falling within that aspect of the police
power. Reference is made by respondents to Ermita-Malate Hotel and Motel Operators
Association, Inc. v. City Mayor of Manila. 28 There is a misapprehension as to what was
decided by this Court. That was a regulatory measure. Necessarily, there was no valid
objection on due process or equal protection grounds. It did not prohibit motels. It merely
regulated the mode in which it may conduct business in order precisely to put an end to
practices which could encourage vice and immorality. This is an entirely different case. What
was involved is a measure not embraced within the regulatory power but an exercise of an
assumed power to prohibit. Moreover, while it was pointed out in the aforesaid Ermita-Malate
Hotel and Motel Operators Association, Inc. decision that there must be a factual foundation of
invalidity, it was likewise made clear that there is no need to satisfy such a requirement if a
9
statute were void on its face. That it certainly is if the power to enact such ordinance is at the
most dubious and under the present Local Government Code non-existent.

WHEREFORE, the writ of certiorari is granted and the decision of the lower court dated
January 15, 1976 reversed, set aside, and nullied. Ordinance No. 84, Series of 1975 of the
Municipality of Bocaue is declared void and unconstitutional. The temporary restraining order
issued by this Court is hereby made permanent. No costs.

10
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
7
Order (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 Council 9 on 9 March 1993 and approved by petitioner City Mayor on 30
March 1993, the said Ordinance is entitled–
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES
PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND
FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION
THEREOF, AND FOR OTHER PURPOSES. 10
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the contrary notwithstanding, no
person, partnership, corporation or entity shall, in the Ermita-Malate area bounded by
Teodoro M. Kalaw Sr. Street in the North, Taft Avenue in the East, Vito Cruz Street in the
South and Roxas Boulevard in the West, pursuant to P.D. 499 be allowed or authorized to
contract and engage in, any business providing certain forms of amusement,
entertainment, services and facilities where women are used as tools in entertainment
and which tend to disturb the community, annoy the inhabitants, and adversely affect
the social and moral welfare of the community, such as but not limited to:
1. Sauna Parlors 2. Massage Parlors 3. Karaoke Bars 4. Beerhouses 5. Night Clubs 6. Day
Clubs
7. Super Clubs 8. Discotheques 9. Cabarets 10. Dance Halls 11. Motels 12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said
officials are prohibited from issuing permits, temporary or otherwise, or from granting
licenses and accepting payments for the operation of business enumerated in the
preceding section.
SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the
businesses enumerated in Section 1 hereof are hereby given three (3) months from the date
of approval of this ordinance within which to wind up business operations or to transfer
to any place outside of the Ermita-Malate area or convert said businesses to other kinds
of business allowable within the area, such as but not limited to:
1. Curio or antique shop 2. Souvenir Shops 3. Handicrafts display centers 4. Art galleries 5.
Records and music shops
6. Restaurants 7. Coffee shops 8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined activities for wholesome family
entertainment that cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural shows,
stage and theatrical plays, art exhibitions, concerts and the like.
11. Businesses allowable within the law and medium intensity districts as provided for in the
zoning ordinances for Metropolitan Manila, except new warehouse or open-storage depot,
dock or yard, motor repair shop, gasoline service station, light industry with any machinery, or
funeral establishments.
SEC. 4. Any person violating any provisions of this ordinance, shall upon conviction, be
punished by imprisonment of one (1) year or fine of FIVE THOUSAND (P5,000.00)
PESOS, or both, at the discretion of the Court, PROVIDED, that in case of juridical person,
the President, the General Manager, or person-in-charge of operation shall be liable thereof;
PROVIDED FURTHER, that in case of subsequent violation and conviction, the premises
of the erring establishment shall be closed and padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today, March 9, 1993.
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included in
its enumeration of prohibited establishments, motels and inns such as MTDC's Victoria Court
considering that these were not establishments for "amusement" or "entertainment" and they
were not "services or facilities for entertainment," nor did they use women as "tools for
entertainment," and neither did they "disturb the community," "annoy the inhabitants" or
"adversely affect the social and moral welfare of the community."11
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. 499 13 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
11
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
30
that they are elevating the case to this Court under then Rule 42 on pure questions of law.
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 despotically 57 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 Manila 63 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
12
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
13
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.
104
4) It must apply equally to all members of the class.
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
14
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
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

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
Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of
P.D. 499. As correctly argued by MTDC, the statute had already converted the residential
Ermita-Malate area into a commercial area. The decree allowed the establishment and
operation of all kinds of commercial establishments except warehouse or open storage depot,
dump or yard, motor repair shop, gasoline service station, light industry with any machinery or
funeral establishment. The rule is that for an ordinance to be valid and to have force and effect,
it must not only be within the powers of the council to enact but the same must not be in
conflict with or repugnant to the general law. 121 As succinctly illustrated in Solicitor General v.
Metropolitan Manila Authority:122
The requirement that the enactment must not violate existing law explains itself. Local political
subdivisions are able to legislate only by virtue of a valid delegation of legislative power from
the national legislature (except only that the power to create their own sources of revenue and
to levy taxes is conferred by the Constitution itself). They are mere agents vested with what is
called the power of subordinate legislation. As delegates of the Congress, the local
government units cannot contravene but must obey at all times the will of their principal. In the
case before us, the enactment in question, which are merely local in origin cannot prevail
against the decree, which has the force and effect of a statute. 123

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
Petitioners contend that the Ordinance enjoys the presumption of validity. While this may be
the rule, it has already been held that although the presumption is always in favor of the
validity or reasonableness of the ordinance, such presumption must nevertheless be set aside
when the invalidity or unreasonableness appears on the face of the ordinance itself or is
established by proper evidence. The exercise of police power by the local government is valid
unless it contravenes the fundamental law of the land, or an act of the legislature, or unless it
is against public policy or is unreasonable, oppressive, partial, discriminating or in derogation
of a common right.124
Conclusion
All considered, the Ordinance invades fundamental personal and property rights and impairs
personal privileges. It is constitutionally infirm. The Ordinance contravenes statutes; it is
discriminatory and unreasonable in its operation; it is not sufficiently detailed and explicit that
abuses may attend the enforcement of its sanctions. And not to be forgotten, the City Council
under the Code had no power to enact the Ordinance and is therefore ultra vires, null and void.
Concededly, the challenged Ordinance was enacted with the best of motives and shares the
concern of the public for the cleansing of the Ermita-Malate area of its social sins. Police power
legislation of such character deserves the full endorsement of the judiciary we reiterate our
support for it. But inspite of its virtuous aims, the enactment of the Ordinance has no statutory
or constitutional authority to stand on. Local legislative bodies, in this case, the City Council,
cannot prohibit the operation of the enumerated establishments under Section 1 thereof or
order their transfer or conversion without infringing the constitutional guarantees of due
process and equal protection of laws not even under the guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court
declaring the Ordinance void is AFFIRMED. Costs against petitioners.
SO ORDERED.

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

15
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 122846 January 20, 2009
WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST &
DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM, Respondent.
DECISION
Tinga, J.:
With another city ordinance of Manila also principally involving the tourist district as subject,
the Court is confronted anew with the incessant clash between government power and
individual liberty in tandem with the archetypal tension between law and morality.
In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a city ordinance barring
the operation of motels and inns, among other establishments, within the Ermita-Malate area.
The petition at bar assails a similarly-motivated city ordinance that prohibits those same
establishments from offering short-time admission, as well as pro-rated or "wash up" rates for
such abbreviated stays. Our earlier decision tested the city ordinance against our sacred
constitutional rights to liberty, due process and equal protection of law. The same parameters
apply to the present petition.
This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal
3
of the Decision in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of
Manila City Ordinance No. 7774 entitled, "An Ordinance Prohibiting Short-Time Admission,
Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging
Houses, Pension Houses, and Similar Establishments in the City of Manila" (the Ordinance).
I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the
Ordinance.4 The Ordinance is reproduced in full, hereunder:
SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to
protect the best interest, health and welfare, and the morality of its constituents in general and
the youth in particular.
SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time
admission in hotels, motels, lodging houses, pension houses and similar establishments in the
City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or
other similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses,
pension houses and similar establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of
room rate for less than twelve (12) hours at any given time or the renting out of rooms more
than twice a day or any other term that may be concocted by owners or managers of said
establishments but would mean the same or would bear the same meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this
ordinance shall upon conviction thereof be punished by a fine of Five Thousand (₱5,000.00)
Pesos or imprisonment for a period of not exceeding one (1) year or both such fine and
imprisonment at the discretion of the court; Provided, That in case of [a] juridical person, the
president, the manager, or the persons in charge of the operation thereof shall be liable:
Provided, further, That in case of subsequent conviction for the same offense, the business
license of the guilty party shall automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or
contrary to this measure or any portion hereof are hereby deemed repealed.
SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval.
Enacted by the city Council of Manila at its regular session today, November 10, 1992.
Approved by His Honor, the Mayor on December 3, 1992.
On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a
complaint for declaratory relief with prayer for a writ of preliminary injunction and/or temporary
restraining order ( TRO)5 with the Regional Trial Court (RTC) of Manila, Branch 9 impleading
as defendant, herein respondent City of Manila (the City) represented by Mayor Lim. 6 MTDC
prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited
establishments, be declared invalid and unconstitutional. MTDC claimed that as owner and
operator of the Victoria Court in Malate, Manila it was authorized by Presidential Decree (P.D.)
No. 259 to admit customers on a short time basis as well as to charge customers wash up
rates for stays of only three hours.
On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC)
and Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to
admit attached complaint-in-intervention7 on the ground that the Ordinance directly affects their
business interests as operators of drive-in-hotels and motels in Manila.8 The three companies
are components of the Anito Group of Companies which owns and operates several hotels and
motels in Metro Manila.9
On December 23, 1992, the RTC granted the motion to intervene.10 The RTC also notified the
Solicitor General of the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court.
On the same date, MTDC moved to withdraw as plaintiff.11
On December 28, 1992, the RTC granted MTDC's motion to withdraw. 12 The RTC issued a
TRO on January 14, 1993, directing the City to cease and desist from enforcing the
Ordinance.13 The City filed an Answer dated January 22, 1993 alleging that the Ordinance is a
legitimate exercise of police power.14
On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist
from the enforcement of the Ordinance. 15 A month later, on March 8, 1993, the Solicitor
General filed his Comment arguing that the Ordinance is constitutional.
During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision
without trial as the case involved a purely legal question. 16 On October 20, 1993, the RTC
rendered a decision declaring the Ordinance null and void. The dispositive portion of the
decision reads:
WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is
hereby declared null and void.
Accordingly, the preliminary injunction heretofor issued is hereby made permanent.
SO ORDERED.17
The RTC noted that the ordinance "strikes at the personal liberty of the individual guaranteed
and jealously guarded by the Constitution." 18 Reference was made to the provisions of the
Constitution encouraging private enterprises and the incentive to needed investment, as well
as the right to operate economic enterprises. Finally, from the observation that the illicit
relationships the Ordinance sought to dissuade could nonetheless be consummated by simply
paying for a 12-hour stay, the RTC likened the law to the ordinance annulled in Ynot v.
Intermediate Appellate Court,19 where the legitimate purpose of preventing indiscriminate
slaughter of carabaos was sought to be effected through an inter-province ban on the transport
of carabaos and carabeef.
The City later filed a petition for review on certiorari with the Supreme Court.20 The petition was
docketed as G.R. No. 112471. However in a resolution dated January 26, 1994, the Court
treated the petition as a petition for certiorari and referred the petition to the Court of Appeals.21
Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police
power pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities,
among other local government units, the power:
[To] 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.22
The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III,
Section 18(kk) of the Revised Manila Charter, thus:
"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 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. 23
Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to
privacy and the freedom of movement; it is an invalid exercise of police power; and it is an
unreasonable and oppressive interference in their business.
The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the
Ordinance.24 First, it held that the Ordinance did not violate the right to privacy or the freedom
of movement, as it only penalizes the owners or operators of establishments that admit
individuals for short time stays. Second, the virtually limitless reach of police power is only
constrained by having a lawful object obtained through a lawful method. The lawful objective of
the Ordinance is satisfied since it aims to curb immoral activities. There is a lawful method
since the establishments are still allowed to operate. Third, the adverse effect on the
establishments is justified by the well-being of its constituents in general. Finally, as held
in Ermita-Malate Motel Operators Association v. City Mayor of Manila, liberty is regulated by
law.
TC, WLC and STDC come to this Court via petition for review on certiorari. 25 In their petition
and Memorandum, petitioners in essence repeat the assertions they made before the Court of
Appeals. They contend that the assailed Ordinance is an invalid exercise of police power.
II.
We must address the threshold issue of petitioners’ standing. Petitioners allege that as owners
of establishments offering "wash-up" rates, their business is being unlawfully interfered with by
the Ordinance. However, petitioners also allege that the equal protection rights of their clients
are also being interfered with. Thus, the crux of the matter is whether or not these
establishments have the requisite standing to plead for protection of their patrons' equal
protection rights.
Standing or locus standi is the ability of a party to demonstrate to the court sufficient
connection to and harm from the law or action challenged to support that party's participation in
the case. More importantly, the doctrine of standing is built on the principle of separation of
powers,26 sparing as it does unnecessary interference or invalidation by the judicial branch of
the actions rendered by its co-equal branches of government.
The requirement of standing is a core component of the judicial system derived directly from
the Constitution.27 The constitutional component of standing doctrine incorporates concepts
which concededly are not susceptible of precise definition.28 In this jurisdiction, the extancy of
"a direct and personal interest" presents the most obvious cause, as well as the standard test
for a petitioner's standing.29 In a similar vein, the United States Supreme Court reviewed and
elaborated on the meaning of the three constitutional standing requirements of injury,
causation, and redressability in Allen v. Wright.30
Nonetheless, the general rules on standing admit of several exceptions such as the
overbreadth doctrine, taxpayer suits, third party standing and, especially in the Philippines, the
doctrine of transcendental importance.31
For this particular set of facts, the concept of third party standing as an exception and the
overbreadth doctrine are appropriate. In Powers v. Ohio,32 the United States Supreme Court
wrote that: "We have recognized the right of litigants to bring actions on behalf of third parties,
provided three important criteria are satisfied: the litigant must have suffered an ‘injury-in-fact,’
thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute;
the litigant must have a close relation to the third party; and there must exist some hindrance
to the third party's ability to protect his or her own interests." 33 Herein, it is clear that the
business interests of the petitioners are likewise injured by the Ordinance. They rely on the
patronage of their customers for their continued viability which appears to be threatened by the
enforcement of the Ordinance. The relative silence in constitutional litigation of such special
interest groups in our nation such as the American Civil Liberties Union in the United States
may also be construed as a hindrance for customers to bring suit. 34
American jurisprudence is replete with examples where parties-in-interest were allowed
standing to advocate or invoke the fundamental due process or equal protection claims of
other persons or classes of persons injured by state action. In Griswold v. Connecticut,35 the
United States Supreme Court held that physicians had standing to challenge a reproductive
health statute that would penalize them as accessories as well as to plead the constitutional
protections available to their patients. The Court held that:
16
"The rights of husband and wife, pressed here, are likely to be diluted or adversely affected
unless those rights are considered in a suit involving those who have this kind of confidential
relation to them."36
An even more analogous example may be found in Craig v. Boren,37 wherein the United States
Supreme Court held that a licensed beverage vendor has standing to raise the equal
protection claim of a male customer challenging a statutory scheme prohibiting the sale of beer
to males under the age of 21 and to females under the age of 18. The United States High
Court explained that the vendors had standing "by acting as advocates of the rights of third
parties who seek access to their market or function."38
Assuming arguendo that petitioners do not have a relationship with their patrons for the former
to assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth
analysis, challengers to government action are in effect permitted to raise the rights of third
parties. Generally applied to statutes infringing on the freedom of speech, the overbreadth
doctrine applies when a statute needlessly restrains even constitutionally guaranteed
rights.39 In this case, the petitioners claim that the Ordinance makes a sweeping intrusion into
the right to liberty of their clients. We can see that based on the allegations in the petition, the
Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the constitutional rights of their
clients to patronize their establishments for a "wash-rate" time frame.
III.
To students of jurisprudence, the facts of this case will recall to mind not only the recent City of
Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations Association,
Inc., v. Hon. City Mayor of Manila.40 Ermita-Malate concerned the City ordinance requiring
patrons to fill up a prescribed form stating personal information such as name, gender,
nationality, age, address and occupation before they could be admitted to a motel, hotel or
lodging house. This earlier ordinance was precisely enacted to minimize certain practices
deemed harmful to public morals. A purpose similar to the annulled ordinance in City of
Manila which sought a blanket ban on motels, inns and similar establishments in the Ermita-
Malate area. However, the constitutionality of the ordinance in Ermita-Malate was sustained by
the Court.
The common thread that runs through those decisions and the case at bar goes beyond the
singularity of the localities covered under the respective ordinances. All three ordinances were
enacted with a view of regulating public morals including particular illicit activity in transient
lodging establishments. This could be described as the middle case, wherein there is no
wholesale ban on motels and hotels but the services offered by these establishments have
been severely restricted. At its core, this is another case about the extent to which the State
can intrude into and regulate the lives of its citizens.
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. 41
The Ordinance prohibits two specific and distinct business practices, namely wash rate
admissions and renting out a room more than twice a day. The ban is evidently sought to be
rooted in the police power as conferred on local government units by the Local Government
Code through such implements as the general welfare clause.
A.
Police power, while incapable of an exact definition, 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 as the conditions warrant. 42 Police power is based upon
the concept of necessity of the State and its corresponding right to protect itself and its
people.43 Police power has been used as justification for numerous and varied actions by the
State. These range from the regulation of dance halls, 44 movie theaters,45 gas stations46 and
cockpits.47 The awesome scope of police power is best demonstrated by the fact that in its
hundred or so years of presence in our nation’s legal system, its use has rarely been denied.
The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered
establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are
unimpeachable and certainly fall within the ambit of the police power of the State. Yet the
desirability of these ends do not sanctify any and all means for their achievement. Those
means must align with the Constitution, and our emerging sophisticated analysis of its
guarantees to the people. The Bill of Rights stands as a rebuke to the seductive theory of
Macchiavelli, and, sometimes even, the political majorities animated by his cynicism.
Even as we design the precedents that establish the framework for analysis of due process or
equal protection questions, the courts are naturally inhibited by a due deference to the co-
equal branches of government as they exercise their political functions. But when we are
compelled to nullify executive or legislative actions, yet another form of caution emerges. If the
Court were animated by the same passing fancies or turbulent emotions that motivate many
political decisions, judicial integrity is compromised by any perception that the judiciary is
merely the third political branch of government. We derive our respect and good standing in
the annals of history by acting as judicious and neutral arbiters of the rule of law, and there is
no surer way to that end than through the development of rigorous and sophisticated legal
standards through which the courts analyze the most fundamental and far-reaching
constitutional questions of the day.
B.
The primary constitutional question that confronts us is one of due process, as guaranteed
under Section 1, Article III of the Constitution. Due process evades a precise definition. 48 The
purpose of the guaranty is to prevent arbitrary governmental encroachment against the life,
liberty and property of individuals. The due process guaranty serves as a protection against
arbitrary regulation or seizure. Even corporations and partnerships are protected by the
guaranty insofar as their property is concerned.
The due process guaranty has traditionally been interpreted as imposing two related but
distinct restrictions on government, "procedural due process" and "substantive due process."
Procedural due process refers to the procedures that the government must follow before it
deprives a person of life, liberty, or property. 49 Procedural due process concerns itself with
government action adhering to the established process when it makes an intrusion into the
private sphere. Examples range from the form of notice given to the level of formality of a
hearing.
If due process were confined solely to its procedural aspects, there would arise absurd
situation of arbitrary government action, provided the proper formalities are followed.
Substantive due process completes the protection envisioned by the due process clause. It
inquires whether the government has sufficient justification for depriving a person of life,
liberty, or property.50
The question of substantive due process, moreso than most other fields of law, has reflected
dynamism in progressive legal thought tied with the expanded acceptance of fundamental
freedoms. Police power, traditionally awesome as it may be, is now confronted with a more
rigorous level of analysis before it can be upheld. The vitality though of constitutional due
process has not been predicated on the frequency with which it has been utilized to achieve a
liberal result for, after all, the libertarian ends should sometimes yield to the prerogatives of the
State. Instead, the due process clause has acquired potency because of the sophisticated
methodology that has emerged to determine the proper metes and bounds for its application.
C.
The general test of the validity of an ordinance on substantive due process grounds is best
tested when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in
U.S. v. Carolene Products.51 Footnote 4 of the Carolene Products case acknowledged that the
judiciary would defer to the legislature unless there is a discrimination against a "discrete and
insular" minority or infringement of a "fundamental right." 52 Consequently, two standards of
judicial review were established: strict scrutiny for laws dealing with freedom of the mind or
restricting the political process, and the rational basis standard of review for economic
legislation.
A third standard, denominated as heightened or immediate scrutiny, was later adopted by the
U.S. Supreme Court for evaluating classifications based on gender 53 and
legitimacy.54 Immediate scrutiny was adopted by the U.S. Supreme Court in Craig, 55 after the
Court declined to do so in Reed v. Reed. 56 While the test may have first been articulated in
equal protection analysis, it has in the United States since been applied in all substantive due
process cases as well.
We ourselves have often applied the rational basis test mainly in analysis of equal protection
challenges.57 Using the rational basis examination, laws or ordinances are upheld if they
rationally further a legitimate governmental interest. 58 Under intermediate review,
governmental interest is extensively examined and the availability of less restrictive measures
is considered.59 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.
In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for
determining the quality and the amount of governmental interest brought to justify the
regulation of fundamental freedoms.60 Strict scrutiny is used today to test the validity of laws
dealing with the regulation of speech, gender, or race as well as other fundamental rights as
expansion from its earlier applications to equal protection. 61 The United States Supreme Court
has expanded the scope of strict scrutiny to protect fundamental rights such as
suffrage,62 judicial access63 and interstate travel.64
If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect
only on the petitioners at bar, then it would seem that the only restraint imposed by the law
which we are capacitated to act upon is the injury to property sustained by the petitioners, an
injury that would warrant the application of the most deferential standard – the rational basis
test. Yet as earlier stated, we recognize the capacity of the petitioners to invoke as well the
constitutional rights of their patrons – those persons who would be deprived of availing short
time access or wash-up rates to the lodging establishments in question.
Viewed cynically, one might say that the infringed rights of these customers were are trivial
since they seem shorn of political consequence. Concededly, these are not the sort of
cherished rights that, when proscribed, would impel the people to tear up their cedulas. Still,
the Bill of Rights does not shelter gravitas alone. Indeed, it is those "trivial" yet fundamental
freedoms – which the people reflexively exercise any day without the impairing awareness of
their constitutional consequence – that accurately reflect the degree of liberty enjoyed by the
people. Liberty, as integrally incorporated as a fundamental right in the Constitution, is not a
Ten Commandments-style enumeration of what may or what may not be done; but rather an
atmosphere of freedom where the people do not feel labored under a Big Brother presence as
they interact with each other, their society and nature, in a manner innately understood by
them as inherent, without doing harm or injury to others.
D.
The rights at stake herein fall within the same fundamental rights to liberty which we upheld in
City of Manila v. Hon. Laguio, Jr. We expounded on that most primordial of rights, thus:
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."[ 65] 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.[ 66]
The U.S. Supreme Court in the case of Roth v. Board of Regents, 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.67 [Citations omitted]
It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual
behavior. The City asserts before this Court that the subject establishments "have gained
notoriety as venue of ‘prostitution, adultery and fornications’ in Manila since they ‘provide the
necessary atmosphere for clandestine entry, presence and exit and thus became the ‘ideal
haven for prostitutes and thrill-seekers.’"68 Whether or not this depiction of a mise-en-scene of
vice is accurate, it cannot be denied that legitimate sexual behavior among willing married or
consenting single adults which is constitutionally protected 69 will be curtailed as well, as it was
in the City of Manila case. Our holding therein retains significance for our purposes:
The concept of liberty compels respect for the individual whose claim to privacy and
interference demands respect. As the case of Morfe v. Mutuc, 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.70
17
We cannot discount other legitimate activities which the Ordinance would proscribe or impair.
There are very legitimate uses for a wash rate or renting the room out for more than twice a
day. Entire families are known to choose pass the time in a motel or hotel whilst the power is
momentarily out in their homes. In transit passengers who wish to wash up and rest between
trips have a legitimate purpose for abbreviated stays in motels or hotels. Indeed any person or
groups of persons in need of comfortable private spaces for a span of a few hours with
purposes other than having sex or using illegal drugs can legitimately look to staying in a motel
or hotel as a convenient alternative.

E.

That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and
the petitioners of lucrative business ties in with another constitutional requisite for the
legitimacy of the Ordinance as a police power measure. It must appear that the interests of the
public generally, as distinguished from those of a particular class, require an interference with
private rights and the means must be reasonably necessary for the accomplishment of the
purpose and not unduly oppressive of private rights. 71 It must also be evident that no other
alternative for the accomplishment of the purpose less intrusive of private rights can work.
More importantly, a reasonable relation must exist between the purposes of the 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.72

Lacking a concurrence of these requisites, the police measure shall be struck down as an
arbitrary intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is
subject to judicial review when life, liberty or property is affected. 73 However, this is not in any
way meant to take it away from the vastness of State police power whose exercise enjoys the
presumption of validity.74

Similar to the Comelec resolution requiring newspapers to donate advertising space to

candidates, this Ordinance is a blunt and heavy instrument. 75 The Ordinance makes no
distinction between places frequented by patrons engaged in illicit activities and patrons
engaged in legitimate actions. Thus it prevents legitimate use of places where illicit activities
are rare or even unheard of. A plain reading of section 3 of the Ordinance shows it makes no
classification of places of lodging, thus deems them all susceptible to illicit patronage and
subject them without exception to the unjustified prohibition.

The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its
longtime home,76 and it is skeptical of those who wish to depict our capital city – the Pearl of
the Orient – as a modern-day Sodom or Gomorrah for the Third World set. Those still steeped
in Nick Joaquin-dreams of the grandeur of Old Manila will have to accept that Manila like all
evolving big cities, will have its problems. Urban decay is a fact of mega cities such as Manila,
and vice is a common problem confronted by the modern metropolis wherever in the world.
The solution to such perceived decay is not to prevent legitimate businesses from offering a
legitimate product. Rather, cities revive themselves by offering incentives for new businesses
to sprout up thus attracting the dynamism of individuals that would bring a new grandeur to
Manila.

The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact
be diminished simply by applying existing laws. Less intrusive measures such as curbing the
proliferation of prostitutes and drug dealers through active police work would be more effective
in easing the situation. So would the strict enforcement of existing laws and regulations
penalizing prostitution and drug use. These measures would have minimal intrusion on the
businesses of the petitioners and other legitimate merchants. Further, it is apparent that the
Ordinance can easily be circumvented by merely paying the whole day rate without any
hindrance to those engaged in illicit activities. Moreover, drug dealers and prostitutes can in
fact collect "wash rates" from their clientele by charging their customers a portion of the rent for
motel rooms and even apartments.

IV.

We reiterate that individual rights may be adversely affected only to the extent that may fairly
be required by the legitimate demands of public interest or public welfare. The State is a
leviathan that must be restrained from needlessly intruding into the lives of its citizens.
However well-intentioned the Ordinance may be, it is in effect an arbitrary and whimsical
intrusion into the rights of the establishments as well as their patrons. The Ordinance
needlessly restrains the operation of the businesses of the petitioners as well as restricting the
rights of their patrons without sufficient justification. The Ordinance rashly equates wash rates
and renting out a room more than twice a day with immorality without accommodating
innocuous intentions.

The promotion of public welfare and a sense of morality among citizens deserves the full
endorsement of the judiciary provided that such measures do not trample rights this Court is
sworn to protect.77 The notion that the promotion of public morality is a function of the State is
as old as Aristotle.78 The advancement of moral relativism as a school of philosophy does not
de-legitimize the role of morality in law, even if it may foster wider debate on which particular
behavior to penalize. It is conceivable that a society with relatively little shared morality among
its citizens could be functional so long as the pursuit of sharply variant moral perspectives
yields an adequate accommodation of different interests. 79

To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is
ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase is more
accurately interpreted as meaning that efforts to legislate morality will fail if they are widely at
variance with public attitudes about right and wrong. 80 Our penal laws, for one, are founded on
age-old moral traditions, and as long as there are widely accepted distinctions between right
and wrong, they will remain so oriented.

Yet the continuing progression of the human story has seen not only the acceptance of the
right-wrong distinction, but also the advent of fundamental liberties as the key to the enjoyment
of life to the fullest. Our democracy is distinguished from non-free societies not with any more
extensive elaboration on our part of what is moral and immoral, but from our recognition that
the individual liberty to make the choices in our lives is innate, and protected by the State.
Independent and fair-minded judges themselves are under a moral duty to uphold the
Constitution as the embodiment of the rule of law, by reason of their expression of consent to
do so when they take the oath of office, and because they are entrusted by the people to
uphold the law.81

Even as the implementation of moral norms remains an indispensable complement to

governance, that prerogative is hardly absolute, especially in the face of the norms of due
process of liberty. And while the tension may often be left to the courts to relieve, it is possible
for the government to avoid the constitutional conflict by employing more judicious, less drastic
means to promote morality.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals

is REVERSED, and the Decision of the Regional Trial Court of Manila, Branch 9,
is REINSTATED. Ordinance No. 7774 is hereby declared UNCONSTITUTIONAL. No
pronouncement as to costs.

SO ORDERED.

18
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS
FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office,
and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right recognized in
Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to
be valid and enforceable must be published in the Official Gazette or otherwise effectively
promulgated, petitioners seek a writ of mandamus to compel respondent public officials to
publish, and/or cause the publication in the Official Gazette of various presidential decrees,
letters of instructions, general orders, proclamations, executive orders, letter of implementation
and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265,
286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429,
445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718,
731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143,
1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-
1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161,
173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239,
241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-
303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397,
405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602,
609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-
940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532,
1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-
1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-
1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-
1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847,
1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952,
1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510,
522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593,
594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94,
95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on
the ground that petitioners have no legal personality or standing to bring the instant petition.
The view is submitted that in the absence of any showing that petitioners are personally and
directly affected or prejudiced by the alleged non-publication of the presidential issuances in
question 2 said petitioners are without the requisite legal personality to institute this mandamus
proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of
the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from
an office, trust, or station, or unlawfully excludes another from the use a rd enjoyment of a right
or office to which such other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition
in the proper court alleging the facts with certainty and praying that judgment be rendered
commanding the defendant, immediately or at some other specified time, to do the act required
to be done to Protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a
public right and its object is to compel the performance of a public duty, they need not show
any specific interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs.
Governor General, 3 this Court held that while the general rule is that "a writ of mandamus
would be granted to a private individual only in those cases where he has some private or
particular interest to be subserved, or some particular right to be protected, independent of that
which he holds with the public at large," and "it is for the public officers exclusively to apply for
the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469],"
nevertheless, "when the question is one of public right and the object of the mandamus is to
procure the enforcement of a public duty, the people are regarded as the real party in interest
and the relator at whose instigation the proceedings are instituted need not show that he has
any legal or special interest in the result, it being sufficient to show that he is a citizen and as
such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec.
431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a
proper party to the mandamus proceedings brought to compel the Governor General to call a
special election for the position of municipal president in the town of Silay, Negros Occidental.
Speaking for this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the proposition that the
relator is a proper party to proceedings of this character when a public right is sought to be
enforced. If the general rule in America were otherwise, we think that it would not be applicable
to the case at bar for the reason 'that it is always dangerous to apply a general rule to a
particular case without keeping in mind the reason for the rule, because, if under the particular
circumstances the reason for the rule does not exist, the rule itself is not applicable and
reliance upon the rule may well lead to error'
No reason exists in the case at bar for applying the general rule insisted upon by counsel for
the respondent. The circumstances which surround this case are different from those in the
United States, inasmuch as if the relator is not a proper party to these proceedings no other
person could be, as we have seen that it is not the duty of the law officer of the Government to
appear and represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be
enforced by petitioners herein is a public right recognized by no less than the fundamental law
of the land. If petitioners were not allowed to institute this proceeding, it would indeed be
difficult to conceive of any other person to initiate the same, considering that the Solicitor
General, the government officer generally empowered to represent the people, has entered his
appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own
effectivity dates. It is thus submitted that since the presidential issuances in question contain
special provisions as to the date they are to take effect, publication in the Official Gazette is not
indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their publication in
the Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said article.
In a long line of decisions,4 this Court has ruled that publication in the Official Gazette is
necessary in those cases where the legislation itself does not provide for its effectivity date-for
then the date of publication is material for determining its date of effectivity, which is the
fifteenth day following its publication-but not when the law itself provides for the date when it
goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity of
laws with the fact of publication. Considered in the light of other statutes applicable to the issue
at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement
of publication in the Official Gazette, even if the law itself provides for the date of its effectivity.
Thus, Section 1 of Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and
resolutions of a public nature of the, Congress of the Philippines; [2] all executive and
administrative orders and proclamations, except such as have no general applicability; [3]
decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be
deemed by said courts of sufficient importance to be so published; [4] such documents or
classes of documents as may be required so to be published by law; and [5] such documents
or classes of documents as the President of the Philippines shall determine from time to time
to have general applicability and legal effect, or which he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate notice of
the various laws which are to regulate their actions and conduct as citizens. Without such
notice and publication, there would be no basis for the application of the maxim "ignorantia
legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for
the transgression of a law of which he had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of
laws taken so vital significance that at this time when the people have bestowed upon the
President a power heretofore enjoyed solely by the legislature. While the people are kept
abreast by the mass media of the debates and deliberations in the Batasan Pambansa—and
for the diligent ones, ready access to the legislative records—no such publicity accompanies
the law-making process of the President. Thus, without publication, the people have no means
of knowing what presidential decrees have actually been promulgated, much less a definite
way of informing themselves of the specific contents and texts of such decrees. As the
Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden
tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas
de conformidad con las mismas por el Gobierno en uso de su potestad. 5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in
the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an
imperative duty. That duty must be enforced if the Constitutional right of the people to be
informed on matters of public concern is to be given substance and reality. The law itself
makes a list of what should be published in the Official Gazette. Such listing, to our mind,
leaves respondents with no discretion whatsoever as to what must be included or excluded
from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties
for their violation or otherwise impose a burden or. the people, such as tax and revenue
measures, fall within this category. Other presidential issuances which apply only to particular
persons or class of persons such as administrative and executive orders need not be
published on the assumption that they have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public nature" or "of
general applicability" is a requirement of due process. It is a rule of law that before a person
may be bound by law, he must first be officially and specifically informed of its contents. As
Justice Claudio Teehankee said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions
which all form part of the law of the land, the requirement of due
process and the Rule of Law demand that the Official Gazette as
the official government repository promulgate and publish the texts
of all such decrees, orders and instructions so that the people may
know where to obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application, which have not
been published, shall have no force and effect. Some members of the Court, quite
apprehensive about the possible unsettling effect this decision might have on acts done in
reliance of the validity of those presidential decrees which were published only during the
pendency of this petition, have put the question as to whether the Court's declaration of
invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The
answer is all too familiar. In similar situations in the past this Court had taken the pragmatic
and realistic course set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the Act of Congress, having been found
to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing
no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County,
118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear,
however, that such broad statements as to the effect of a determination of unconstitutionality
must be taken with qualifications. The actual existence of a statute, prior to such a
determination, is an operative fact and may have consequences which cannot justly be
ignored. The past cannot always be erased by a new judicial declaration. The effect of the
subsequent ruling as to invalidity may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed to have become vested, of
status, of prior determinations deemed to have finality and acted upon accordingly, of public
policy in the light of the nature both of the statute and of its previous application, demand
examination. These questions are among the most difficult of those which have engaged the
attention of courts, state and federal and it is manifest from numerous decisions that an all-
inclusive statement of a principle of absolute retroactive invalidity cannot be justified.
19
Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a
party under the Moratorium Law, albeit said right had accrued in his favor before said law was
declared unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in

the Official Gazette is "an operative fact which may have consequences which cannot be justly
ignored. The past cannot always be erased by a new judicial declaration ... that an all-inclusive
statement of a principle of absolute retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees
Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so
published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since
no copies thereof are available. But whatever their subject matter may be, it is undisputed that
none of these unpublished PDs has ever been implemented or enforced by the government.
In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is
necessary to apprise the public of the contents of [penal] regulations and make the said
penalties binding on the persons affected thereby. " The cogency of this holding is apparently
recognized by respondent officials considering the manifestation in their comment that "the
government, as a matter of policy, refrains from prosecuting violations of criminal laws until the
same shall have been published in the Official Gazette or in some other publication, even
though some criminal laws provide that they shall take effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so published,
they shall have no binding force and effect.

SO ORDERED.

20
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 148579 February 5, 2007

GMA NETWORK, INC., Petitioner,

vs.
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, Respondent.

DECISION

CORONA, J.:

Subject of this petition for review under Rule 45 of the Rules of Court is the June 18, 2001
decision1 of the Court of Appeals (CA) affirming the January 7, 2000 order 2 of respondent
Movie and Television Review and Classification Board (MTRCB) which read:

In view thereof, the BOARD, by the undersigned, hereby imposes the administrative penalty of
SUSPENSION FROM AIRING/BROADCASTING any program on EMC Channel 27 for a
period of seven (7) days which period shall commence immediately upon receipt of this Order.
Your failure to comply with this ORDER shall be construed by the BOARD as defiance on your
part of a lawful order of the BOARD.

The facts follow.

Petitioner GMA Network, Inc. operates and manages the UHF television station, EMC Channel
27. On January 7, 2000, respondent MTRCB issued an order of suspension against petitioner
for airing "Muro Ami: The Making" without first securing a permit from it as provided in Section
7 of PD 1986.3

The penalty of suspension was based on Memorandum Circular 98-17 dated December 15,
19984 which provided for the penalties for exhibiting a program without a valid permit from the
MTRCB.

Petitioner moved for reconsideration of the suspension order and, at the same time, informed
MTRCB that Channel 27 had complied with the suspension order by going off the air since
midnight of January 11, 2000. It also filed a letter-protest which was merely "noted" by the
MTRCB thereby, in effect, denying both the motion for reconsideration and letter-protest.

Petitioner then filed with the CA a petition for certiorari which was dismissed in the now
assailed June 18, 2001 decision. The January 7, 2000 suspension order issued by MTRCB
was affirmed in toto.

Hence, this recourse.

The pivotal issues for our resolution are:

(1) whether the MTRCB has the power or authority to review the show "Muro
Ami: The Making" prior to its broadcast by television and

(2) whether Memorandum Circular No. 98-17 was enforceable and binding on
petitioner.

First, Section 3 of PD 19865 empowers the MTRCB to screen, review and examine all motion
pictures, television programs including publicity materials. This power of prior review is
highlighted in its Rules and Regulations, particularly Section 7 thereof, which reads:

SECTION 7. REQUIREMENT OF PRIOR REVIEW. -- No motion picture, television program or

related publicity material shall be imported, exported, produced, copied, distributed, sold,
leased, exhibited or broadcasted by television without prior permit issued by the BOARD after
review of the motion picture, television program or publicity material.

The only exemptions from the MTRCB’s power of review are those expressly mentioned in
Section 7,6 such as (1) television programs imprinted or exhibited by the Philippine
Government and/or departments and agencies, and (2) newsreels.

According to the CA, the subject program was a publicity for the movie, "Muro Ami." In
adopting this finding, we hold that "Muro Ami: The Making," did not fall under any of the
exemptions and was therefore within the power of review of MTRCB.

On the other hand, petitioner claims that "Muro Ami: The Making" was a public
affairs program.7 Even if that were so, our resolution of this issue would not change. This Court
has already ruled that a public affairs program -- described as a variety of news treatment; a
cross between pure television news and news-related commentaries, analysis and/or
exchange of opinions -- is within the MTRCB’s power of review.8 Clearly, "Muro Ami: The
Making" (which petitioner claims to be a public affairs program) was well within the purview of
MTRCB’s power of prior review.1awphi1.net

However, while MTRCB had jurisdiction over the subject program, Memorandum Circular 98-
17, which was the basis of the suspension order, was not binding on petitioner. The
Administrative Code of 1987, particularly Section 3 thereof, expressly requires each agency to
file with the Office of the National Administrative Register (ONAR) of the University of the
Philippines Law Center three certified copies of every rule adopted by it. Administrative
issuances which are not published or filed with the ONAR are ineffective and may not be
enforced.9

Memorandum Circular No. 98-17, which provides for the penalties for the first, second and
third offenses for exhibiting programs without valid permit to exhibit, has not been registered
with the ONAR as of January 27, 2000.10 Hence, the same is yet to be effective.11 It is thus
unenforceable since it has not been filed in the ONAR. 12 Consequently, petitioner was not
bound by said circular and should not have been meted the sanction provided thereunder.

WHEREFORE, the instant petition is PARTIALLY GRANTED. The decision of the Court of
Appeals dated June 18, 2001, insofar as it affirmed the public respondent Movie and
Television Review and Classification Board’s jurisdiction over "Muro Ami: The Making," is
hereby AFFIRMED with the MODIFICATION that the suspension order issued against
petitioner GMA Network, Inc. pursuant to Memorandum Circular No. 98-17 is hereby declared
null and void.

No pronouncement as to costs.

SO ORDERED.
21
G.R. No. 213948
KNIGHTS OF RIZAL, Petitioner.
vs.
DMCI HOMES, INC., DMCI PROJECT DEVELOPERS, INC., CITY OF MANILA, NATIONAL
COMMISSION FOR CULTURE AND THE ARTS, NATIONAL HISTORICAL COMMISSION
OF THE PHILIPPINES, Respondents.
DECISION
CARPIO, J.:
Bury me in the ground, place a stone and a cross over it.
My name, the date of my birth, and of my death. Nothing more.
If you later wish to surround my grave with a fence, you may do so.
No anniversaries. I prefer Paang Bundok.
- Jose Rizal
The Case
Before this Court is a Petition for Injunction, with Applications for Temporary Restraining Order,
Writ of Preliminary Injunction, and Others 1 filed by the Knights of Rizal (KOR) seeking, among
others, for an order to stop the construction of respondent DMCI Homes, Inc. 's condominium
development project known as the Torre de Manila. In its Resolution dated 25 November 2014,
the Court resolved to treat the petition as one for mandamus. 2
The Facts
3
On 1 September 2011, DMCI Project Developers, Inc. (DMCI-PDI) acquired a 7,716.60-
square meter lot in the City of Manila, located near Taft Avenue, Ermita, beside the former
Manila Jai-Alai Building and Adamson University.4 The lot was earmarked for the construction
of DMCI-PDI's Torre de Manila condominium project.
On 2 April 2012, DMCI-PDI secured its Barangay Clearance to start the construction of its
project. It then obtained a Zoning Permit from the City of Manila's City Planning and
Development Office (CPDO) on 19 June 2012.5
Then, on 5 July 2012, the City of Manila's Office of the Building Official granted DMCI-PDI a
Building Permit, allowing it to build a "Forty Nine (49) Storey w/ Basement & 2 penthouse Level
Res'l./Condominium" on the property. 6
On 24 July 2012, the City Council of Manila issued Resolution No. 121 enjoining the Office of
the Building Official to temporarily suspend the Building Permit of DMCI-PDI, citing among
others, that "the Torre de Manila Condominium, based on their development plans, upon
completion, will rise up high above the back of the national monument, to clearly dwarf the
statue of our hero, and with such towering heights, would certainly ruin the line of sight of the
Rizal Shrine from the frontal Roxas Boulevard vantage point[.]" 7
Building Official Melvin Q. Balagot then sought the opinion of the City of Manila's City Legal
Officer on whether he is bound to comply with Resolution No. 121. 8 In his letter dated 12
September 2012, City Legal Officer Renato G. Dela Cruz stated that there is "no legal
justification for the temporary suspension of the Building Permit issued in favor of [DMCI-PDI]"
since the construction "lies outside the Luneta Park" and is "simply too far to I be a repulsive
distraction or have an objectionable effect on the artistic and historical significance" of the Rizal
Monument. 9 He also pointed out that "there is no showing that the [area of subject property
has been officially declared as an anthropological or archeological area. Neither has it ' been
categorically designated by the National Historical Institute as a heritage zone, a cultural
property, a historical landmark or even a national treasure."
Subsequently, both the City of Manila and DMCI-PDI sought the opinion or the National
Historical Commission of the Philippines (NHCP) on the matter. In the letter 10 dated 6
November 2012 from NHCP I Chairperson Dr. Maria Serena I. Diokno addressed to DMCI-PDI
and the letter 11 dated 7 November 2012 from NHCP Executive Director III Ludovico D. Bado)f
addressed to then Manila Mayor Alfredo S. Lim, the NHCP maintained that the Torre de Manila
project site is outside the boundaries of the Rizal f.ark and well to the rear of the Rizal
Monument, and thus, cannot possibly obstruct the frontal view of the National Monument.
On 26 November 2013, following an online petition against the Torre de Manila project that
garnered about 7,800 signatures, the City Council of Manila issued Resolution No. 146,
reiterating its directive in Resolution No. 121 1 enjoining the City of Manila's building officials to
temporarily suspend ~MCI-PDI's Building Permit. 12
In a letter to Mayor Joseph Ejercito Estrada dated 18 December 2013, DMCI-PIDI President
Alfredo R. Austria sought clarification on the controversy surrounding its Zoning Permit. He
stated that since the CPDO granted its Zoning Permit, DMCI-PDI continued with the
application for the Building Permit, which was granted, and did not deem it necessary to go
through the process of appealing to the local zoning board. He then expressed DMCI-PDI's
willingness to comply with the process if the City of Manila deemed it necessary. 13
On 23 December 2013, the Manila Zoning Board of Adjustments and Appeals (MZBAA) issued
Zoning Board Resolution No. 06, Series of 2013, 14 recommending the approval of DMCI-PDI's
application for variance. ;The MZBAA noted that the Torre de Manila project "exceeds the
prescribed maximum Percentage of Land Occupancy (PLO) and exceeds the prescribeµ Floor
Area Ratio (FAR) as stipulated in Article V, Section 17 of City Ordinance No. 8119[.]" However,
the MZBAA still recommended the approval of the variance subject to the five conditions set
under the same resolution.
After some clarification sought by DMCI-PDI, the MZBAA issued Zoning Board Resolution No.
06-A, Series of 2013, 15 on 8 January 2014, amending condition (c) in the earlier resolution. 16
On 16 January 2014, the City Council of Manila issued Resolution No. 5, Series of
2014, 17 adopting Zoning Board Resolution Nos. 06 and 06- A. The City Council resolution
states that "the City Council of Manila find[ s] no cogent reason to deny and/or reverse the
aforesaid recommendation of the [MZBAA] and hereby ratif[ies] and confirm[s] all previously
issued permits, licenses and approvals issued by the City [Council] of Manila for Torre de
Manila[.]"
Arguments of the KOR
On 12 September 2014, the KOR, a "civic, patriotic, cultural, nonpartisan, non-sectarian and
non-profit organization" 18 created under Republic Act No. 646, 19 filed a Petition for Injunction
seeking a temporary restraining I order, and later a permanent injunction, against the
construction of DMCIPDI's Torre de Manila condominium project. The KOR argues that the
subject matter of the present suit is one of "transcendental importance, paramount public
interest, of overarching significance to society, or with far-reaching implication" involving the
desecration of the Rizal Monument.
The KOR asserts that the completed Torre de Manila structure will "[stick] out like a sore
thumb, [dwarf] all surrounding buildings within a radius of two kilometer/s" and "forever ruin the
sightline of the Rizal Monument in Luneta Park: Torre de Manila building would loom at the
back I and overshadow the entire monument, whether up close or viewed from a distance. '' 20
Further, the KOR argues that the Rizal Monument, as a National Treasure, is entitled to "full
protection of the law"21 and the national government must abate the act or activity that
endangers the nation's cultural heritage "even against the wishes of the local government
22
hosting it."
Next, the KOR contends that the project is a nuisance per se23 because "[t]he despoliation of
the sight view of the Rizal Monument is a situation that annoy's or offends the senses' of every
Filipino who honors the memory of the National Hero Jose Rizal. It is a present, continuing,
worsening and aggravating status or condition. Hence, the PROJECT is a nuisance per se. It
deserves I to be abated summarily, even without need of judicial proceeding. "24
The KOR also claims that the Torre de Manila project violates the NHCP's Guidelines on
Monuments Honoring National Heroes, Illustrious Filipinos and Other Personages, which state
that historic monuments should assert a visual "dominance" over its surroundings, 25 as well as
the country's commitment under the International Charter for the Conservation and Restoration
of Monuments and Sites, otherwise known as the Venice Charter. 26
Lastly, the KOR claims that the DMCI-PDI's construction was commenced and continues in
bad faith, and is in violation of the City of Manila's zoning ordinance. 27
Arguments of DMCI-PDI
In its Comment, DMCI-PDI argues that the KOR's petition should be dismissed on the following
grounds:
I.
THXS HONORABLE COURT HAS NO JURISDICTION OVER THIS ACTION.
II.
KOR HAS NO LEGAL RIGHT OR INTEREST TO FILE OR PR0SECUTE THIS ACTION.
III.
TORRE DE MANILA IS NOT A NUISANCE PER SE.
IV.
DMCI-PDI ACTED IN GOOD FAITH IN CONSTRUCTING TORRE DE MANILA; AND
V.
KOR IS NOT ENTITLED TO A TEMPORARY RESTRAINING ORPER AND/OR A WRIT OF
PRELIMINARY INJUNCTION. 28
First, DMCI-PDI asserts that the Court has no original jurisdiction over actions for
injunction.29 Even assuming that the Court has concurrent jurisdiction, DMCI-PDI maintains
that the petition should still have been filed with the Regional Trial Court under the doctrine of
hierarchy of courts and because the petition involves questions of fact. 30
DMCI-PDI also contends that the KOR's petition is in actuality an opposition' or appeal from
the exemption granted by the City of Manila's MZBAA, a matter which is also not within the
jurisdiction of the Court. 31 DMCI-PDI claims that the proper forum should be the MZBAA, and
should the KOR fail there, it should appeal the same to the Housing and Land Use Regulatory
Board (HLURB). 32
DMCI-PDI further argues that since the Rizal Monument has been declared a National
Treasure, the power to issue a cease and desist order is lodged with the "appropriate cultural
agency" under Section 25 of Republic Act No. li0066 or the National Cultural Heritage Act of
2009. 33 Moreover, DMCI-PDI asserts that the KOR availed of the wrong remedy since an
action for injunction is not the proper remedy for abatement of a nuisance. 34
Second, DMCI-PDI maintains that the KOR has no standing to institute this proceeding
because it is not a real party in interest in this case. The purposes of the KOR as a public
corporation do not include the preservation of the Rizal Monument as a cultural or historical
heritage site.35 The KOR has also not shown that it suffered an actual or threatened injury as a
result of the alleged illegal conduct of the City of Manila. If there is any injury to the KOR at all,
the same was caused by the private conduct of a private entity and not the City of Manila. 36
Third, DMCI-PDI argues that the Torre de Manila is not a nuisance per se. DMCI-PDI
reiterates that it obtained all the necessary permits, licenses, clearances, and certificates for its
construction. 37 It also refutes the KOR's claim that the Torre de Manila would dwarf all other
structures around it; considering that there are other tall buildings even closer to the Rizal
Monument itself, namely, the Eton Baypark Tower at the corner of Roxas Boulevard and T.M.
Kalaw Street (29 storeys; 235 meters from the Rizal Monument) and Sunview Palace at the
corner of M.H. Del Pilar and T.M. Kalaw Streets (42 storeys; 250 meters from the Rizal
Monument). 38
Fourth, DMCI-PDI next argues that it did not act in bad faith when it started construction of its
Torre de Manila project. Bad faith cannot be attributed to it since it was within the "lawful
exercise of [its] rights." 39 The KOR failed to present any proof that DMCI-PDI did not follow the
proper procedure and zoning restrictions of the City of Manila. Aside from obtaining all the
necessary permits from the appropriate government agencies,40 DMCI-PDI also sought
clarification on its right to build on its site from the Office of the City Legal Officer of Manila, the
Manila CPDO, and the NHCP.41 Moreover, even if the KOR proffered such proof, the Court
would be 1 in no position to declare DMCI-PDI's acts as illegal since the Court is not a trier of
facts. 42
Finally, DMCI-PDI opposes the KOR's application for a Temporary Restraining Order (TRO)
and writ of preliminary injunction. DMCI-PDI asserts that the KOR has failed to establish "a
clear and unmistakable right to enjoin I the construction of Torre de Manila, much less request
its demolitior."43 DMCI-PDI further argues that it "has complied with all the legal requirements
for the construction of Torre de Manila x x x [and] has violated o right of KOR that must be
protected. Further, KOR stands to suffer o damage because of its lack of direct pecuniary
interest in this petiti1 on. To grant the KOR's application for injunctive relief would constitute an
unjust taking of property without due process of law. " 44
Arguments of the City of Manila
22
In its Comment, the City of Manila argues that the writ of mandamus cannot issue "considering
that no property or substantive rights whatsoever in favor of [the KOR] is being affected or x x
x entitled to judicial protection[.]"45
The City of Manila also asserts that the "issuance and revocation of a Building Permit
undoubtedly fall under the category of a discretionary act or duty performed by the proper
officer in light of his meticulous appraisal and evaluation of the pertinent supporting documents
of the application in accordance with the rules laid out under the National Building Code [and]
46
Presidential Decree No. 1096," while the remedy of mandamus is available only to compel
the performance of a ministerial duty. 47
Further, the City of Manila maintains that the construction of the Torre de Manila did not violate
any existing law, since the "edifice [is] well behind (some 789 meters away) the line of sight of
the Rizal Monument."48 It adds that the City of Manila's "prevailing Land Use and Zoning
Ordinance [Ordinance No. 8119] x xx allows an adjustment in Floor Area Ratios thru the
[MZBAA] subject to further final approval of the City Council."49 The City Council adopted the
MZBAA's favorable: recommendation in its Resolution No. 5, ratifying all the licenses and
permits issued to DMCI-PDI for its Torre de Manila project.
In its Position Paper dated 15 July 2015, the City of Manila admitted that the Zoning Permit
issued to DMCI-PDI was "in breach of certain provisions of City Ordinance No. 8119." 50 It
maintained, however, 1 that the deficiency is "procedural in nature and pertains mostly td the
failure of [DMCI-PDI] to comply with the stipulations that allow an excess in the [FAR]
provisions." 51 Further, the City of Manila argued that the MZBAA, when it recommended the
allowance of the project's variance, imposed certain conditions upon the Torre de Manila
project in order to mitigate the possible adverse effects of an excess FAR. 52
The Issue
The issues raised by the parties can be summed up into one main point: Can the Court issue a
writ of mandamus against the officials of the City of Manila to stop the construction of DMCI-
PDI's Torre de Manila project?
The Court's Ruling
The petition for mandamus lacks merit and must be dismissed.
There is no law prohibiting the construction of the Torre de Manila.
In Manila Electric Company v. Public Service Commission,53 the Court held that "what is not
expressly or impliedly prohibited by law may be done, except when the act is contrary
to morals, customs and I public order." This principle is fundamental in a democratic
society, to protect the weak against the strong, the minority against the majority, and the
individual citizen against the government. In essence, this principle, which is the foundation of
a civilized society under the rule of law, prescribes that the freedom to act can be curtailed only
through law. Without this principle, the rights, freedoms, and civil liberties of citizens can be
arbitrarily and whimsically trampled upon by the shifting passions of those who can spout the
loudest, or those who can gather the biggest crowd or the most number of Internet trolls. In
other instances,54 the Court has allowed or upheld actions that were not expressly prohibited
by statutes when it determined that these acts were not contrary to morals, customs, and
public order, or that upholding the same would lead to a more equitable solution to the
controversy. However, it is the law itself - Articles 130655 and 1409(1)56 of the Civil Code -
which prescribes that acts not contrary to morals, good customs, public order, or public policy
are allowed if also not contrary to law.
In this case, there is no allegation or proof that the Torre de Manila project is "contrary to
morals, customs, and public order" or that it brings harm, danger, or hazard to the community.
On the contrary, the City of Manila has determined that DMCI-PDI complied with the standards
set under the pertinent laws and local ordinances to construct its Torre de Manila project.
There is one fact that is crystal clear in this case. There is no law prohibiting the construction of
the Torre de Manila due to its effect on the background "view, vista, sightline, or setting" of
the Rizal Monument.
Specifically, Section 47 reads:
SEC. 47. Historical Preservation and Conservation Standards. - Historic site and facilities shall
be conserved and preserved. These shall, to the extent possible, be made accessible for the
educational and cultural enrichment of the general public.
The following shall guide the development of historic sites and facilities:
1. Sites with historic buildings or places shall be developed to conserve and enhance their
heritage values.
2. Historic sites and facilities shall be adaptively re-used.
3. Any person who proposes to add, to alter, or partially demolish a designated heritage
property will require the approval of the City Planning and Development Office (CPDO) and
shall be required to prepare a heritage impact statement that will demonstrate to the
satisfaction of CPDO that the proposal will not adversely impact the heritage significance of the
property and shall submit plans for review by the CPDO in coordination with the National
Historical Institute (NHI).
4. Any proposed alteration and/or re-use of designated heritage properties shall be evaluated
based on criteria established by the heritage significance of the particular property or site.
5. Where an owner of a heritage property applies for approval to demolish a designated
heritage property or properties, the owner shall be required to provide evidence to satisfaction
that demonstrates that rehabilitation and re-use of the property is not viable.
6. Any designated heritage property which is to be demolished or significantly altered shall be
thoroughly documented for archival purposes with! a history, photographic records, and
measured drawings, in accordance with accepted heritage recording guidelines, prior to
demolition or alteration.
7. Residential and commercial infill in heritage areas will be sensitive to the existing scale and
pattern of those areas, which maintains the existing landscape and streetscape qualities of
those areas, and which does not result in the loss of any heritage resources.
8. Development plans shall ensure that parking facilities (surface lots residential garages,
stand-alone parking garages and parking components as parts of larger developments) are
compatibly integrated into heritage areas, and/or are compatible with adjacent heritage
resources.
9. Local utility companies (hydro, gas, telephone, cable) shall be required to place metering
equipment, transformer boxes, power lines, conduit, equipment boxes, piping, wireless
telecommunication towers and other utility equipment and devices in locations which do not
detract from the visual character of heritage resources, and which do not have a negative
impact on its architectural integrity.
10. Design review approval shall be secured from the CPDO for any alteration of the heritage
property to ensure that design guidelines and standards are met and shall promote
preservation and conservation of the heritage property. (Emphasis supplied)
It is clear that the standards laid down in Section 47 of Ordinance No. 8119 only serve as
guides, as it expressly states that "the following shall guide the :development of historic sites
and facilities." A guide simply sets a direction 'or gives an instruction to be followed by
prope1iy owners and developers in order to conserve and enhance a property's heritage
values.
On the other hand, Section 48 states:
SEC. 48. Site Performance Standards. - The City considers it in the public interest that all
projects are designed and developed in a safe, efficient and aesthetically pleasing manner.
Site development shall consider the environmental character and limitations of the site and its
adjacent properties. All project elements shall be in complete harmony according to good
design principles and the subsequent development must be visually pleasing as well as
efficiently functioning especially in relation to the adjacent properties and bordering streets.
The design, construction, operation and maintenance of every facility shall be in harmony with
the existing and intended character of its neighborhood. It shall not change the essential
character of the said area but will be a substantial improvement to the value of the properties
in the neighborhood in particular and the community in general.
Furthermore, designs should consider the following:
1. Sites, buildings and facilities shall be designed and developed with1 regard to safety,
efficiency and high standards of design. The natural environmental character of the site and its
adjacent properties shall be considered in the site development of each building and facility.
2. The height and bulk of buildings and structures shall be so designed that it does not impair
the entry of light and ventilation, cause the loss I of privacy and/or create nuisances, hazards
or inconveniences to adjacent developments.
3. Abutments to adjacent properties shall not be allowed without the neighbor's prior written
consent which shall be required by the City Planning and Development Office (CPDO) prior to
the granting of a Zoning Permit (Locational Clearance).
4. The capacity of parking areas/lots shall be per the minimum requirements of the National
Building Code. These shall be located, developed and landscaped in order to enhance the
aesthetic quality of the facility. In no case, shall parking areas/lots encroach into street rights-
of-way and shall follow the Traffic Code as set by the City.
5. Developments that attract a significant volume of public modes of transportation, such as
tricycles, jeepneys, buses, etc., shall provide on-site parking for the same. These shall also
provide vehicular loading and unloading bays so as street traffic flow will not be impeded.
6. Buffers, silencers, mufflers, enclosures and other noise-absorbing I materials shall be
provided to all noise and vibration-producing machinery. Noise levels shall be maintained
according to levels specified in DENR DA9 No. 30 - Abatement of Noise and Other Forms of
Nuisance as Defined by Law.
7. Glare and heat from any operation or activity shall not be radiated, seen or felt from any
point beyond the limits of the property.
8. No large commercial signage and/or pylon, which will be detrimental to the skyline,
shall be allowed.
9. Design guidelines, deeds of restriction, property management plans and other regulatory
tools that will ensure high quality developments shall be required from developers of
commercial subdivisions and condominiums. These shall be submitted to the City Planning
and Development Office (CPDO) for review and approval. (Emphasis supplied)
Se9tion 4 7 of Ordinance No. 8119 specifically regulates the "development of historic sites
and facilities." Section 48 regulates "large commercial signage and/or pylon." There is
nothing in Sections 47 and 48 of Ordinance No. 8119 that disallows the construction of
a building outside the boundaries of a historic site or facility, where such building may
affect the1 background of a historic site. In this case, the Torre de Manila stands 870 meters
outside and to the rear of the Rizal Monument and "cannot possibly obstruct the front view of
the [Rizal] Monument." 57 Likewise, ;the Torre de Manila is not in an area that has been
declared as an "anthropological or archeological area" or in an area designated as a heritage
zone, cultural property, historical landmark, or a national treasure by the NHCP. 58
Section 15, Article XIV of the Constitution, which deals with the subject of arts and culture,
provides that "[t]he State shall conserve, promote and popularize the nation's historical and
cultural heritage and resources x x x." Since this provision is not self-executory, Congress
passed laws dealing with the preservation and conservation of our cultural heritage.
One such law is Republic Act No. 10066,59 or the National Cultural Heritage Act of 2009, which
empowers the National Commission for Culture and the Arts and other cultural agencies to
issue a cease and desist order "when the physical integrity of the national cultural treasures
or important cultural properties [is] found to be in danger of destruction or significant
alteration from its original state." 60 This law declares that the State should protect the
"physical integrity" of the heritage property or building if there is "danger of destruction or
significant alteration from its original state." Physical integrity refers to the structure itself -
how strong and sound the structure is. The same law does not mention
that another project, building, or property, not itself a heritage property or building, may be the
subject of a cease and desist order when it adversely affects the background view, vista, or
sightline of a heritage property or building. Thus, Republic Act No. 10066 cannot apply to the
Torre de Manila condominium project.
Mandamus does not lie against the City of Manila.
The Constitution states that "[n]o person shall be deprived of life, liberty or 1property without
due process of law x x x." 61 It is a fundamental principle that no property shall be taken away
from an individual without due process, whether substantive or procedural. The dispossession
of property, or in this case the stoppage of the construction of a building in one's own property
would violate substantive due process.
The Rules on Civil Procedure are clear that mandamus only issues when there is a clear legal
duty imposed upon the office or the officer sought to be compelled to perform an act, and when
the party seeking mandamus has a clear legal right to the performance of such act.
In the present case, nowhere is it found in Ordinance No. 8119 or in any law, ordinance, or rule
for that matter, that the construction of a building outside the Rizal Park is prohibited if the
building is within the background sightline or view of the Rizal Monument. Thus, there is no
23
legal duty on the part of the City of Manila "to consider," in the words of the Dissenting
Opinion, "the standards set under Ordinance No. 8119" in relation to the applications of
DMCI-PDI for the Torre de Manila since under the ordinance these standards can never be
applied outside the boundaries of Rizal Park. While the Rizal Park has been declared a
National Historical Site, the area where Torre de Manila is being built is a privately-owned
property that is "not pap: of the Rizal Park that has been declared as a National Heritage Site
in 1095," and the Torre de Manila area is in fact "well-beyond" the Rizal Park, according to
NHCP Chairperson Dr. Maria Serena I. Diokno. 62 Neither has the area of the Torre de Manila
been designated as a "heritage zone, a cultural property, a historical landmark or even a
63
national treasure."
Also, to declare that the City of Manila failed to consider the standards under Ordinance No.
8119 would involve making a finding of fact. A finding lot fact requires notice, hearing, and the
submission of evidence to ascertain compliance with the law or regulation. In such a case, it is
the Regional Trial Court which has the jurisdiction to hear the case, receive evidence, make a
proper finding of fact, and determine whether the Torre de Manila project properly complied
with the standards set by the ordinance. In Meralco v. Public Service Commission, 64 we held
that it is the cardinal right of a party in trials and administrative proceedings to be heard, which
includes the right of the party interested or affected to present his own case and submit
evidence in support thereof and to have such evidence presented considered by the proper
court or tribunal.
To compel the City of Manila to consider the standards under Ordinance No. 8119 to the Torre
de Manila project will be an empty exercise since these standards cannot apply outside of the
Rizal Park - and the Torre de Manila is outside the Rizal Park. Mandamus will lie only if the
officials
The KOR also invokes this Court's exercise of its extraordinary certiorari power of review under
Section 1, Article VIII65 of the Constitution. However, this Court can only exercise its
extraordinary certiorari power if the City of Manila, in issuing the required permits and
licenses, gravely abused its discretion amounting to lack or excess of
jurisdiction. Tellingly, neither the majority nor minority opinion in this case has found that the
City of Manila committed grave abuse of discretion in issuing the permits and licenses to
DMCI-PDI. Thus, there is no justification at all for this Court to exercise its
extraordinary certiorari power.
Moreover, the exercise of this Court's extraordinary certiorari power is limited to actual cases
and controversies that necessarily involve a violation of the Constitution or the determination of
the constitutionality or validity of a governmental act or issuance. Specific violation of a statute
that does not raise the issue of constitutionality or validity of the statute cannot, as a rule, be
the subject of the Court's direct exercise of its expanded certiorari power. Thus, the KOR's
recourse lies with other judicial remedies or proceedings allowed under the Rules of Court.
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical
Centers Association, Inc., 66 we held that in cases where the question of constitutionality of a
governmental action is raised, the judicial power that the courts exercise is likewise identified
as the power of judicial review - the power to review the constitutionality of the actions of other
branches of government. As a rule, as required by the hierarchy of courts principle, these
cases are filed with the lowest court with jurisdiction over the 1subject matter. The judicial
review that the courts undertake requires:
1) there be an actual case or controversy calling for the exercise of judicial power;
2) the person challenging the act must have "standing" to challenge; he must have a personal
and substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement;
3) the question of constitutionality must be raised at the earliest possible opportunity; and
4) the issue of constitutionality must be the very lismota of the case.
The lower court's decision under the constitutional scheme reaches the Supreme Court
through the appeal process, through a petition for review on certiorari under Rule 45 of the
Rules of Court.
In the present case, the KOR elevated this case immediately to this Court in an original petition
for injunction which we later on treated as one for mandamus under Rule 65. There is,
however, no clear legal duty on the City of Manila to consider the provisions of Ordinance No.
8119 for applications for permits to build outside the protected areas of the Rizal Park. Even if
there were such legal duty, the determination of whether the City of .Manila failed to abide by
this legal duty would involve factual matters which have not been admitted or established in
this case. Establishing factual matters is not within the realm of this Court. Findings of fact are
the province of the trial courts.
There is no standard in Ordinance No. 8119 for defining or determining the background
sightline that is supposed to be protected or that is part of the "physical integrity" of the Rizal
Monument. How far should a building like the Torre de Manila be from the Rizal Monument -
one, two, three, four, or five kilometers? Even the Solicitor General, during the Oral
Arguments, conceded that the ordinance does not prescribe how sightline is determined,
neither is there any way to measure by metes and bounds whether al construction that is not
part of the historic monument itself or is outside the protected area can be said to violate
the Rizal Monument's physicalintegrity, except only to say "when you stand in front of the
Rizal Monument, there can be no doubt that your view is marred and impaired." This kind of a
standard has no parameters and can include a sightline or a construction as far as the human
eyes can see when standing in front of the Rizal Monument. Obviously, this Court cannot apply
such a subjective and non-uniform standard that adversely affects property rights several
kilometers away from a historical sight or facility.
The Dissenting Opinion claims that "the City, by reason of a mistaken or erroneous
construction of its own Ordinance, had failed to consider its duties under [Ordinance No. 8119]
when it issued permits in DMCI-PDI's favor." However, MZBAA Zoning Board Resolution Nos.
06 and 06-A67 easily dispel this claim. According to the resolutions, the City of Manila, through
the MZBAA, acted on DMCI-PDI's application for variance under the powers and standards set
forth in Ordinance No. 8119.
Without further proof that the MZBAA acted whimsically, capriciously, or arbitrarily in issuing
said resolution, the Court should respect MZBAA's exercise of discretion. The Court cannot
"substitute its I judgment :for that of said officials who are in a better position to consider and
weigh the same in the light of the authority specifically vested in them by law." 68 Since the
Court has "no supervisory power over the proceedings I and actions of the administrative
departments of the government," it "should not generally interfere with purely administrative
and discretionary functions.; 69 The power of the Court in mandamus petitions does not
extend "to direct the exercise of judgment or discretion in a particular way or the
retraction or reversal of an action already taken in the exercise of either." 70
Still, the Dissenting Opinion insists on directing the re-evaluation by the City of Manila, through
the CPDO, of the permits previously issued in favor of the Torre de Manila project to determine
compliance with the standards ]under Ordinance No. 8119. It also declares that the
circumstances in this case warrant the prohacvice conversion of the proceedings in the
issuance of the permits into a "contested case" necessitating notice and hearing with all the
parties involved.
Prohac vice means a specific decision does not constitute a precedent because the decision is
for the specific case only, not to be followed in other cases. A prohac vice decision violates
statutory law - Article 8 of the Civil Code - which states that "judicial decisions applying or
interpreting the laws or the Constitution shall form part of the legal system of the Philippines."
The decision of the Court in this case cannot be prohac vice because by mandate bf the
law everydecision of the Court forms part of the legal system of the Philippines. If another
case comes up with the same facts as the present case, that case must be decided in the
same way as this case to comply with the constitutional mandate of equal protection of the law.
Thus, a prohac vice decision also violates the equal protection clause of the Constitution.
It is the policy of the courts not to interfere with the discretionary executive acts of the
executive branch unless there is a clear showing of grave abuse of discretion amounting to
lack or excess of jurisdiction. Mandamus does not lie against the legislative and executive
branches or their members acting in the exercise of their official discretionary functions. This
emanates from the respect accorded by the judiciary to said branches as co-equal entities
under the principle of separation of powers.
In De Castro v. Salas,71 we held that no rule of law is better established than the one that
provides that mandamus will not issue to control the discretion of an officer or a court when
honestly exercised and when such power and authority is not abused.
In exceptional cases, the Court has granted a prayer for mandamus to compel action in
matters involving judgment and discretion, only "to act, but not to act lone way or the
other," 72 and only in cases where there has been a clear showing of grave abuse of
discretion, manifest injustice, or palpable excess of authority.73
In this case, there can be no determination by this Court that the City of Manila had been
negligent or remiss in its duty under Ordinance No. 8119 considering that this determination
will involve questions of fact. DMCI- PDI had been issued the proper permits and had secured
all approvals and licenses months before the actual construction began. Even the KOR could
not point to any law that respondent City of Manila had violated and could only point to
declarations of policies by the NHCP and the Venice Charter which do not constitute clear
legal bases for the issuance of a writ of mandam1s.
The Venice Charter is merely a codification of guiding principles for the preservation and
restoration of ancient monuments, sites, and buildings. It brings I together principles in the field
of historical conservation and restoration that have been developed, agreed upon, and and laid
down by experts over the years. Each country, however, remains "responsible for applying the
plan within the framework of its own culture and traditions." 74
The Venice Charter is not a treaty and therefore does not become enforceable as law. The
Philippines is not legally bound to follow its directive, as in fact, these are not directives but
mere guidelines - a set of the best practices and techniques that have been proven over the
years to be the most effective in preserving and restoring historical monuments, sites and
buildings.
The City of Manila concedes that DMCI-PDI's Zoning Permit was granted without going
through the process under Ordinance No. 8119. However, the same was properly rectified
when, faced with mounting opposition, DMCI-PDI itself sought clarification from the City of
Manila and immediately began complying with the procedure for applying for a variance. The
MZBAA did subsequently recommend the approval of the variance and the City Council of
Manila approved the same, ratifying the licenses and permits already given to DMCI-PDI. Such
ratification was well within the right of the City Council of Manila. The City Council of Manila
could have denied the application had it seen any reason to do so. Again, the ratification is a
function of the City Council of Manila, an exercise of its discretion1 and well within the authority
granted it by law and the City's own Ordinance No. 8119.
The main purpose of zoning is the protection of public safety, health, convenience, and
welfare. There is no indication that the Torre de Manila project brings any harm, danger, or
hazard to the people in the surrounding areas except that the building allegedly poses an
unsightly view on the taking of photos or the visual appreciation of the Rizal Monument by
locals and tourists. In fact, the Court must take the approval of the MZBAA, and its subsequent
ratification by the City Council of Manila, as the duly authorized exercise of discretion by the
city officials. Great care must be taken that the Court does not unduly tread upon the local
government's performance of its duties. It is not for this Court to dictate upon the other
branches bf the government how their discretion must be exercised so long as these branches
do not commit grave abuse of discretion amounting to lack or excess of jurisdiction.
Likewise, any violation of Ordinance No. 8119 must be determined in the proper case and
before the proper forum. It is not within the power of this Court in this case to make such
determination. Without such determination, this Court cannot simply declare that the City of
Manila had failed to consider its duties under Ordinance No. 8119 when it issued the permits in
DMCI-PDI's favor without making a finding of fact how the City of Manila failed "to consider" its
duties with respect to areas outside the boundaries of the Rizal Park. In the first place, this
Court has no jurisdiction to make findings of fact in an original action like this before this Court.
Moreover the City of Manila could not legally apply standards to sites outside the area covered
by the ordinance that prescribed the standards. With this, I taken in light of the lack of finding
that there was grave abuse of discretion I on the part of the City of Manila, there is no basis to
issue the writ of mandamus against the City of Manila.
During the Oral Arguments, it was established that the granting of a variance neither
uncommon nor irregular. On the contrary, current practice has made granting of a variance the
rule rather than the exception:
JUSTICE CARPIO: Let's go to Ordinance 8119. For residential condominium that stand alone,
in other words not part of a commercial complex or an industrial complex ...
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: The [Floor Area Ratio (FAR)] is uniform for the entire City of Manila, the
FAR 4, correct? ATTY. FLAMINIANO: I believe so, Your Honor, it's FAR 4.
JUSTICE CARPIO: So it's FAR 4 for all residential condominium complex or industrial projects.
ATTY. FLAMINIANO: There might be, the FAR might be different when it comes to
condominiums in commercial areas, Your Honor.
JUSTICE CARPIO: Yes, I'm talking of stand-alone ...
ATTY. FLAMINIANO: Yes, Your Honor.
JUITICE CARPIO: ... residential condominiums...
ATTY. FLAMINIANO: Uniform at FAR 4, Your Honor.
JUSTICE CARPIO: And the percentage of land occupancy is always 60 percent.
ATTY. FLAMINIANO: 60 percent correct, Your Honor.
JUSTICE CARPIO: Okay ... how many square meters is this Torre de Manila?
24
xxx
ATTY. FLAMINIANO: The land area, Your Honor, it's almost 5,000 ... 5,556.
JUSTICE CARPIO: So, it's almost half a hectare.
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: And at FAR 4, it can only build up to 18 storeys, I mean at FAR 4, is that
correct?
ATTY. FLAMINIANO: If the 60 percent of the lot...
JUSTICE CARPIO: Yes, but that is a rule.
ATTY. FLAMINIANO: That is a rule, that's the rule, Your Honor.
JUSTICE CARPIO: 60 percent of...
ATTY. FLAMINIANO: Of the land area.
JUSTICE CARPIO: ... buildable, the rest not buildable.
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: Okay, so if you look around here in the City of Manila anywhere you go,
you look at stand alone residential condominium buildings...
ATTY. FLAMINIANO: There's a lot of them, Your Honor.
JUSTICE CARPIO: It's always not FAR 4, it's more than FAR 4.
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: And the buildable area is to the edge of the property ...it's not 60 percent,
correct?
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: So, if you look at all the ... residential buildings in the last ten years,
they [have] all variances. They did not follow the original FAR 4 or the 60 percent (of
land occupancy). Every residential building that stand alone was a variance. ATTY.
FLAMINIANO: That's correct, Your Honor.
JUSTICE CARPIO: So the rule really in the City of Manila is variance, and the exception
which is never followed is FAR 4.
ATTY. FLAMINIANO: FAR 4, it appears to be that way, Your Honor.
xxxx
JUSTICE CARPIO: Every developer will have to get a variance because it doesn't make
sense to follow FAR 4 because the land is so expensive and if you can build only two
storeys on a 1,000-square meter lot, you will surely lose money, correct? ATTY.
FLAMINIANO: Exactly, Your Honor. 75 (Emphasis supplied)
This, the MZBAA's grant of the variance cannot be used as a basis to grant the
mandamus petition absent any clear finding that said act amo'1nted to "grave abuse of
discretion, manifest injustice, or palpable excess of authority."
The KOR is Estopped from Questioning the
Torre de Manila Construction.
The KOR is now estopped from questioning the construction of the Torre de Manila project.
The KOR itself came up with the idea to build a structure right behind the Rizal Monument that
would dwarf the Rizal Monument.
In the mid-1950s, the Jose Rizal National Centennial Commission (JRNCC) l formulated a plan
to build an Educational Center within the Rizal Park. In July 1955, the KOR proposed the
inclusion of a national theater on the site of the Educational Center. The JRNCC adopted the
76
proposal. The following[ year, a law - Republic Act No. 1427 - authorized the establishment
of the Jose Rizal National Cultural Shrine consisting of a national theater, a national museum,
and a national library on a single site. 77
To be built on the open space right behind the 12.7 meter high Rizal Monument were: the
KOR's proposed nationaltheater, standing 29.25 meters high and 286 meters in distance from
the Rizal Monument; the nationallibrary, standing 25 .6 meters high and 180 meters in distance
from the Rizal ;Monument, with its rear along San Luis Street (now T.M. Kalaw Street); and
facing it, the nationalmuseum, at 19.5 meters high and 190 meters in I distance from the Rizal
Monument, with its back along P. Burgos Street. 78
However, several sectors voiced their objections to the construction for various reasons.
Among them, the need to preserve the open space of the park, the high cost of construction,
the desecration of the park's hallowed grounds, and the fact that the proposed cultural
center including the 129.25 meter high national theater proposed by the KOR would
dwarf the 12.7 meter high Rizal Monument. 79 The JRNCC revised the plan and only the
National Library - which still stands today - was built. 80
According to the NHCP, the KOR even proposed to build a Rizal Center on the park as
recently as 2013.81 The proposal was disapproved by the NHCR and the Department of
Tourism.
Surely, as noble as the KOR's intentions were, its proposed center would have dwarfed the
Rizal Monument with its size and proximity.
In contrast, the Torre de Manila is located well outside the Rizal Park, and to the rear of the
Rizal Monument - approximately 870 meters from the Rizal Monument and 3 0 meters from the
edge of Rizal Park. 82
It is a basic principle that "one who seeks equity and justice must come to court with clean
hands. "83 In Jenosa v. Delariarte, 84 the Court reiterated ,that he who seeks equity must do
equity, and he who comes into equity must come with clean hands. This "signifies that a litigant
may be denied relief by a court of equity on the ground that his conduct has been inequitable,
unfair and dishonest, or fraudulent, or deceitful as to the controversy in issue. " 85 Thus, the
KOR, having earlier proposed a national theater a mere 286meters in distance from the back
of the Rizal Monument that would have dwarfed the Rizal Monument, comes to this I Court
with unclean hands. It is now precluded from "seeking any equitable refuge" 86 from the Court.
The KOR's petition should be dismissed on this ground alone.
Torre de Manila is Not a Nuisance Per Se.
In its petition, the KOR claims that the Torre de Manila is a nuisance perse that deserves to be
summarily abated even without judicial proceedings. 87 However, during the Oral Arguments,
counsel for the KOR argued that the KOR now believes that the Torre de Manila is a nuisance
per accidens and not a nuisance perse. 88
Article 694 of the Civil Code defines a nuisance as any act, omission, establishment,
business, condition of property, or anything else which: (1) injures or endangers the health or
safety of others; (2) annoys or offends the senses; (3) shocks, defies or disregards decency or
morality; (4) obstructs or interferes with the free passage of any public highway or street, or
any body of water; or (5) hinders or impairs the use of property.
Thy Court recognizes two kinds of nuisances. The first, nuisance perse, is on "recognized as a
nuisance under any and all circumstances, because it constitutes a direct menace to public
health or safety, and, for that reason, may be abated summarily under the undefined law of
necessity." 89 The second, nuisance peraccidens, is that which "depends upon certain
conditions and circumstances, and its existence being a question of fact, it cannot be abated
without due hearing thereon in a tribunal authorized to decide whether such a thing in law
constitutes a nuisance. "90
It can easily be gleaned that the Torre de Manila is not a nuisance per se. The Torre de Manila
project cannot be considered as a "direct menace to I public health or safety." Not only is a
condominium project commonplace in the City of Manila, DMCI-PDI has, according to the
proper government agencies, complied with health and safety standards set by law. DMCI-PDI
has been granted the following permits and clearances prior to starting the project: (1) Height
Clearance Permit from the Civil Aviation Authority of the Philippines; 91 (2) Development Permit
from the HLURB;92 (3) Zoning Certification from the HLURB;93 (4) Certificate of Environmental
Compliance Commitment from the Environment Management Bureau of the Department of
Environment and Natural Resources;94 (5) Barangay Clearance95 (6) Zoning Permit;96 (7)
Building Permit;97 (8) and Electrical and Mechanical Permit.98
Later, DMCI-PDI also obtained the right to build under a variance recommended by the
MZBAA and granted by the City Council of Manila. Thus, there can be no doubt that the Torre
de Manila project is not a nuisance perse.
On the other hand, the KOR now claims that the Torre de Manila is a nuisance peraccidens.
By definition, a nuisance peraccidens is determined based on its surrounding conditions and
circumstances. These conditions and circumstances must be well established, not merely
alleged. The Court cannot simply accept these conditions and circumstances as established
facts as the KOR would have us do in this case. 99 The KOR itself concedes that the question
of whether the Torre de Manila is a nuisance peraccidens is a question of fact. 100
The authority to decide when a nuisance exists is an authority to find facts, to estimate their
force, and to apply rules of law to the case thus made. 101 1lhis Court is no such authority. It is
not a trier of facts. It cannot simply take the allegations in the petition and accept these as
facts, more so in this case where these allegations are contested by the respondents.
The task to receive and evaluate evidence is lodged with the trial courts. The question, then, of
whether the Torre de Manila project is a nuisance peraccidens must be settled after due
proceedings brought before the proper Regional Trial Court. The KOR cannot circumvent the
process in the guise be protecting national culture and heritage.
The TRO must be lifted.
Injunctive reliefs are meant to preserve substantive rights and prevent further injury 102 until
final adjudication on the merits of the case. In the present case, since the legal rights of the
KOR are not well-defined, clear, and certain, the petition for mandamus must be dismissed
and the TRO lifted.
The general rule is that courts will not disturb the findings of I administrative agencies when
they are supported by substantial evidence. In this case, DMCI-PDI already acquired vested
rights in the various permits, licenses, or even variances it had applied for in order to build a
49-storey building which is, and had been, allowed by the City of Manila's zoning ordinance.
As we have time and again held, courts generally hesitate to review discretionary decisions or
actions of administrative agencies in the absence of proof that such decisions or actions were
arrived at with grave abuse of discretion amounting to lack or excess of jurisdiction.
In JRS Business Corp. v. Montesa, 103 we held that mandamus is the proper remedy if it could
be shown that there was neglect on the part of a tribunal in the performance of an act which
the law specifically enjoins as a duty, or there was an unlawful exclusion of a party from the
use and enjoyment be a right to which he is clearly entitled. Only specific legal rights may be
enforced by mandamus if they are clear and certain. If the legal rights of th6 petitioner are not
well-defined, definite, clear, and certain, 104 the petition must be dismissed. Stated otherwise,
the writ never issues in doubtful cases. It neither confers powers nor imposes duties. It is
simply a command to exercise a power already possessed and to perform a duty already
imposed. 105
In sum, bearing in mind the Court does not intervene in discretionary acts of the executive
department in the absence of grave abuse of discretion, 106 and considering that mandamus
may only be issued to enforce a clear and certain legal right, 107 the present special civil action
for mandamus must be dismissed and the TRO issued earlier must be lifted.
A FINAL WORD
It had been Rizal’s wish to die facing the rising sun. In his Mi Ultimo Adios, the poem he left for
his family the night before he was executed, Rizal wrote:
Yo muero cuando veo que el cielo se colora Y al fin anuncia el dia tras lobrego capuz 108
[Ako’y mamamatay, ngayong namamalas na sa Silanganan ay namamanaag
yaong maligayang araw na sisikat sa likod ng luksang nagtabing na ulap.] 109
[I die just when I see the dawn break,
Through the gloom of night, to herald the day] 110
25
Yet at the point of his execution, he was made to stand facing West towards Manila Bay, with
his back to the firing squad, like the traitor the colonial government wished to portray him. He
asked to face his executioners, facing the East where the sun would be rising since it was
early morning, but the Spanish captain did not allow it. As he was shot and a single bullet
struck his frail body, Rizal forced himself, with his last remaining strength, to turn around to
face the East and thus he fell on his back with] his face to the sky and the rising sun. Then, the
Spanish captain approached Rizal and finished him off with one pistol shot to his head.

Before his death, Rizal wrote a letter to his family. He asked for a simple tomb, marked with a
cross and a stone with only his name and the date of his birth and death; no anniversary
celebrations; and interment at Paang Bundok (now, the Manila North Cemetery). Rizal never
wanted his grave to be a burden to future generations.

The letter never made it to his family and his wishes were not carried out. The letter was
discovered many years later, in 1953. By then, his remains had been entombed at the Rizal
Monument, countless anniversaries had been . celebrated, with memorials and monuments
built throughout the world.

Rizal's wish was unmistakable: to be buried without pomp or pageantry; to the point of
reaching oblivion or obscurity in the future. 111 For Rizal's life was never about fame or
vainglory, but for the country he loved dearly and for which he gave up his life.

The Rizal Monument is expressly against Rizal' s own wishes. That Rizal's statue now stands
facing West towards Manila Bay, with Rizal's back to the East, adds salt to the wound. If we
continue the present orientation of Rizal's statue, with Rizal facing West, we would be like the
Spanish captain who refused Rizal's request to die facing the rising sun in the East. On the
other hand, if Rizal' s statue is made to face East, as Rizal had desired when he was about to
be shot, the background - the blue sky above Manila Bay - would forever be clear of
obstruction, and we would be faithful to Rizal's dying wish.

WHEREFORE, the petition for mandamus is DISMISSED for lack of merit. The Temporary
Restraining Order issued by the Court on 16 June 2015 is LIFTED effective immediately.

SO ORDERED.

26
G.R. No. 199172
HON. LEONCIO EVASCO, JR., in his capacity as OIC CITY ENGINEER OF DAVAO CITY
and HON. WENDEL A VISADO, in his capacity as THE CITY ADMINISTRATOR OF
DAVAO CITY, Petitioners
vs.
ALEX P. MONTANEZ, doing business under the name and style APM or AD AND
PROMO MANAGEMENT, Respondents
DECISION
LEONARDO-DE CASTRO, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court, as
amended, seeking to reverse and set aside the Decision 1 dated June 14, 2011 and Amended
Decision2 dated October 13, 2011 of the Court of Appeals in CA-G.R. CV No. 02281-MIN,
where it declared null and void Sections 7, 8, 37 and 45 of the Davao City Ordinance No. 092,
Series of 2000 (hereinafter referred to as "Ordinance No. 092- 2000" or "the Ordinance").3
The facts are as follows:
On August 8, 2000, the city government of Davao (City Government), through its Sangguniang
Panlungsod, approved Ordinance No. 092-2000 entitled "An Ordinance Regulating the
Construction, Repair, Renovation, Erection, Installation and Maintenance of Outdoor
Advertising Materials and For Related Purposes." Sections 7, 8, 37, and 45 of the ordinance
provided as follows:
CHAPTERS
SPECIFIC PROVISIONS
Article 1 Advertising Sign
SECTION 7 - BILLBOARD - Outdoor advertising signs shall not be allowed in a residential
zone as designated in the Official Zoning Map. Adjacent billboards shall be erected in such a
way as to maintain 150.00 meters unobstructed line of sight.
Billboards and other self-supporting outdoor signs along highways shall be located within a
minimum of 10.00 meters away from the property lines abutting the road right-of-way.
SECTION 8 - REGULATED AREAS - Bridge approach areas within 200 meters of the
following bridges shall be designated as "regulated areas" in order to preserve, among others,
the natural view and beauty of the Davao River, Mt. Apo, the Davao City Skyline and the view
of Samal Island, to wit:
1. Generoso Bridge I and II; 2. Bolton Bridge I and II; 3. Lasang Bridge
CHAPTER 10
FEES
SECTION 37 - FEES - Fees for the application of Sign Permits to be paid at the Office of the
City Treasurer shall be as follows:
I. DISPLAY SURFACE
a) Sign fee shall be collected per square meter of the display surface of billboards, business
signs, electrical signs, ground signs, projecting signs, roof signs, signboards and wall signs for
such amount as follows:
a.1 outdoor video screen................... ₱150.00 a.2 tri-wind billboard........................ ₱100.00
a.3 neon............................................. ₱75.00 a.4 illuminated .................................. ₱50.00
a.5 painted-on .................................... ₱30.00 a.6 others ............................................ ₱15.00
b) Posters (per piece) ....................................... ₱5.00
c) Temporary signs (per square meter) ........... ₱5.00
d) Other advertising and/or propaganda Materials (per square meter) ........................ ₱10.00
e) Building lines/staking line and Grade (fixed amount) ............................................. ₱200.00
II. STRUCTURE
Erection of support for any signboard, billboard and the like shall be charged a fee as follows:
1) up to 4 square meter of signboard................ ₱100.00 2) in every square meter or fraction
thereof...... ₱50.00
III. RENEWAL FEE
Renewal of sign permit shall include among others the corresponding payment for the display
surface and support structure of the sign as determined in accordance with this Section and
Section 35 of this Ordinance.
IV. OTHER FEES
Sign fees paid under this Ordinance shall be without prejudice to an additional payment of
electrical permit fee for signs with electrical devices as required in accordance with the
provisions of the National Building Code.
CHAPTER 14
REMOVAL OF ILLEGAL MATERIALS
SECTION 45 - REMOVAL. The City Engineer or his duly authorized representative shall
remove, upon recommendation of the Building Official, the following at the expense of the
displaying party:
l. Those displayed without permit from the Local Building Official, provided that the displaying
party shall be given a reasonable period of sixty (60) days from receipt of the notice to comply
with the sign permit requirement provided hereof;
2. Those displayed with a permit but without bearing the necessary permit marking
requirement as provided in Section 39 hereof, provided that the displaying party shall be given
a reasonable period of sixty (60) days from receipt of the notice to comply with the marking
permit requirement provided hereof;
3. Those displayed beyond the expiry date as provided in Section 34 hereof, however, if the
displaying party intends to renew such permit even beyond the period sought to be extended,
the same shall be given a reasonable period of sixty (60) days from receipt of the notice to
comply with the renewal requirement provided hereof without prejudice to the payment of
surcharge of 25% of the total fees for such delay.
4. Those displayed in public places and/or structures as stated in section 41;
5. Those billboards, business signs, electrical signs, ground signs, projecting signs, roof signs
or wall signs which are installed or constructed in violation of this Ordinance or other applicable
statues and ordinances.
As early as 2003, the City Engineer of Davao City (City Engineer) started sending notices of
illegal construction to various outdoor advertising businesses, including Ad & Promo
Management (APM), owned by herein respondent Alex P. Montanez, that constructed the
billboards in different areas within the city. The City Engineer reminded the entities to secure a
sign permit or apply for a renewal for each billboard structure as required by Ordinance No.
092-2000.
In February4 and March 2006, the City Engineer issued orders 5 of demolition directing erring
outdoor advertising businesses, including APM, to "voluntarily dismantle" their billboards that
violate Ordinance No. 092- 2000 within three days from receipt of the order. Otherwise, the city
government shall summarily remove these structures without further notice. In the orders of
demolition dated March 17, 2006, the summary removal was scheduled on March 30, 2006 at
8:30 in the morning.
With the impending demolition of APM's billboard structures, respondent Montanez sought
recourse before the Regional Trial Court (RTC), Branch 14, Davao City on March 28, 2006 and
filed a petition for injunction and declaration of nullity of Ordinance No. 092-2000 and order of
demolition dated March 17, 2006 with application for a writ of preliminary injunction and
temporary restraining order docketed as Sp. Civil Case No. 31,346-06.
In his petition,6 respondent Montanez claimed that Ordinance No. 092-2000 is unconstitutional
for being overbreadth in its application, vague, and inconsistent with Presidential Decree No.
1096 or the National Building Code of the Philippines (National Building Code).
In an Order7 dated April 17, 2006, the RTC granted respondent Montañez's application for the
issuance of a writ of preliminary injunction, to wit:
WHEREFORE, conformably with the foregoing, the instant prayer for the issuance of the writ
of preliminary injunction is hereby GRANTED. The respondents, namely, OIC Leoncio Evasco,
Jr. of the Davao City Engineer's Office and Davao City Administrator Wendel A visado are
hereby restrained from implementing the Order of demolition dated March 17, 2006 and from
actually demolishing the advertising structures of petitioner Alex P. Montanez along Bolton
Bridge and Bankerohan Bridge until the main case is decided and tried on the merits or until
further orders from this Court.
Meanwhile, in response to the damage caused by typhoon Milenyo in September 2006
especially to various billboard structures within Metro Manila, former President Gloria
Macapagal-Arroyo (President Arroyo) issued Administrative Order (AO) No. 160 8 directing the
Department of Public Works and Highways (DPWH) to conduct nationwide field inspections,
evaluations, and assessments of billboards and to abate and dismantle those: (a) posing
imminent danger or threat to the life, health, safety and property of the public; (b) violating
applicable laws, rules and regulations; (c) constructed within the easement of road right-of-
way; and/or, (d) constructed without the necessary permits. President Arroyo also issued AO
No. 160-A9 specifying the legal grounds and procedures in the abatement of billboards and
signboards constituting public nuisance or other violations of law.
Assuming the role given by AO No. 160, Acting DPWH Secretary Hennogenes E. Ebdane, Jr.
issued National Building Code Development Office (NBCDO) Memorandum Circular No.
310 directing all local government Building Officials to cease and desist from processing
application for and issuing and renewing billboard permits.
Pursuant to this directive, the city government suspended all pending applications for billboard
permits.
While petitioner Montañez's case was still pending before the RTC, the city government issued
another order of demolition dated September 25, 2008, this time directed against Prime
Advertisements & Signs (Prime), on the ground that the latter's billboards had no sign permits
and encroached a portion of the road right of way. The city government gave Prime until
October 8, 2008 to voluntarily trim its structures. Otherwise, the same shall be removed by the
city demolition team.
The directive against Prime prompted herein respondent Davao Billboards and Signmakers
Association, Inc. (DABASA) to intervene11 in Sp. Civil Case No. 31,346-06 in behalf of its
members consisting of outdoor advertising and signmaker businesses in Davao City such as
APM and Prime.
The RTC Decision
In its Decision12 dated January 19, 2009, the RTC ruled in favor of herein respondents
Montanez and DABASA, to wit:
WHEREFORE, and in view of all the foregoing, judgment is rendered declaring as void and
unconstitutional the following provisions of City Ordinance No. 092-2000 as follows:
(a) Sections 7, 8 and 41
for being contrary to P.D. 1096 or the National Building Code of the Philippines.
The injunction previously issued base (sic) on the aforesaid provisions of the ordinance is
hereby made permanent.13
Both parties moved for reconsideration. Thus, in its Joint Order dated April 1, 2009, the RTC
modified its original decision, to wit:
27
WHEREFORE, and in view of all the foregoing, the .instant motion for partial reconsideration of
petitioner is GRANTED modifying the court's decision dated JANUARY 19, 2009 as follows:
~ property rights because it merely sets a limitation and, in fact, still allows construction of
(a) declaring as void and unconstitutional the following provisions of City Ordinance No. 092-
2000, as follows:
aa) Sections 7, 8 and 37, for being contrary to P.D. 1096 or the National Building Code of the
Philippines;
[bb] declaring herein Section 41 of City Ordinance No. 092- 2000 as deleted; and
[cc] declaring the injunction previously issued by the Court based on the aforesaid provisions
of the Ordinance, permanent.
Respondents'. (sic) motion for reconsideration is DENIED. 14
Aggrieved, the petitioner City Engineer sought recourse before the Court of Appeals.
The Ruling of the Court of Appeals
In its assailed Decision, the Court of Appeals denied the City Engineer's appeal, to wit:
WHEREFORE, premises foregoing, the appeal is hereby DENIED and the January 19, 2009
Decision and April 1, 2009 Joint Order of Branch 14 of the Regional Trial Court of Davao City
in Civil Case No. 31,346-06 the Regional Trial Court (sic) AFFIRMED with modification.
The appealed Decision and Joint Order are affirmed insofar as it declares Section 7 and 8 of
City Ordinance of Davao No. 092 series of 2002 (sic) null and void. Section 45 of the
challenged Order (sic) is likewise declared null and void. We, however, reinstate Section 41 of
the challenged Ordinance.15
Again, both parties moved for reconsideration. Subsequently, the Court of Appeals
promulgated its Amended Decision, to wit:
WHEREFORE, premises foregoing, respondent-appellant City of Davao's Motion for
Reconsideration is hereby DENIED. Petitioner-appellee's prayer for the categorical declaration
of the nullity of Section 37 of the challenged Ordinance and rectification of the dispositive
portion of our June 14, 2011 Decision are GRANTED. The fallo of said decision should now
read:
"WHEREFORE, premises foregoing, the appeal is hereby DENIED and the January 19, 2009
Decision and April 1, 2009 Joint Order of Branch 14 of the Regional Trial Court of Davao City
in Civil Case No. 31,346-06 are AFFIRMED with modification.
The appealed Decision and Joint Order are affirmed insofar as it declares Section 7, 8 and 37
of City Ordinance of Davao No. 092 series of 2002 (sic) null and void. Section 45 of the
challenged Ordinance is likewise declared null and void. We however, reinstate Section 41 of
the challenged Ordinance."16
Hence, the present petition.
On the basis of City of Manila v. Laguio, Jr.,17 the appellate court held that Ordinance No. 092-
2000 is not consistent with the National Building Code and, thus, invalid. It cited the following
inconsistencies: First, Section 7 of Ordinance No. 092-2000 requires that signs and signboards
must be constructed at least 10 meters away from the property line while the National Building
Code allows projection of not more than 300 millimeters over alleys and roads. The Ordinance
unduly interferes with proprietary rights inasmuch as it requires a larger setback
distance. Second, Section 8 of the Ordinance regulates building and constn1ction of signs and
signboards within certain areas to preserve the natural beauty of the Davao River, Mt. Apo, the
Davao City Skyline, and the view of Samal Island. Upholding People v. Fajardo,18 the local
government cannot rely solely on aesthetics in justifying its exercise of police
power. Third, Section 45 of the Ordinance authorizes the City Engineer, upon the Building
Official's recommendation, to demolish advertising materials that have been found to be
illegally constructed. In effect, the Ordinance expanded the Building Official's authority, which,
under the National Building Code, was limited to determining ruinous and dangerous buildings
or structures and to recommending its repair or demolition. Further, the National Building Code
does not allow the demolition of signs based on a supposed lack of permit. Instead, it allows
these structures to continue to operate so long as a duly accredited engineer certifies the
structures' structural integrity.19
The Issues
The petitioner City Engineer now comes before this Court raising the following issues:
I official in the removal of erring billboard structures.
WHETHER OR NOT SECTION 7 OF SIGNAGE ORDINANCE, WIDCH IS LIFTED/COPIED
FROM UNCHALLENGED PROVISION OF THE IMPLEMENTING RULES AND REGULATION
(SIC) OF NATIONAL BUILDING CODE OF THE PHILIPPINES, RUNS CONTRA[R]Y TO THE
NATIONAL BUILDING CODE ITSELF?
II
WHETHER OR NOT THE COURT OF APPEALS ERRED IN DECLARING SECTION 8 OF
SIGNAGE ORDINANCE NULL AND VOID
III
WHETHER OR NOT THE COURT OF APPEALS ERRED IN DECLARING SECTION 37 OF
SIGNAGE ORDINANCE NULL AND VOID
IV
WHETHER OR NOT THE COURT OF APPEALS ERRED IN DECLARING SECTION 45 OF
SIGNAGE ORDINANCE NULL AND VOID20
The petitioner City Engineer argues that Ordinance No. 092-2000 is not inconsistent with the
National Building Code as follows: as to Section 7, it cannot be held to be inconsistent with
Section 1002,21 which is under Chapter 10, of the National Building Code because said
provision applies to all building projections, in general. Signs and billboards are specifically
governed by Chapter 20 thereof. As to Section 8, Section 458(a)(3)(iv)22 of Republic Act No.
7160 or the Local Government Code of the Philippines (LGC), the city government has the
power to regulate the display of signs for the purpose of preserving the natural view and
beauty of the surroundings. Aesthetic considerations do not constitute undue interference on
property provided it is done beyond the setback. As to Section 37, when it nullified the same,
the Court of Appeals did not state the specific legal findings and bases supporting its nullity.
Thus, the assailed decision violated Section 14, Article VIII 23 of the Constitution. As to Section
45, the Court of Appeals went beyond its authority when it invalidated the said Section
because the parties, both petitioners and respondents, did not raise any issue as to the validity
of said section. Moreover, the city engineer is mandated to act as the local building official. In
turn, under the LGC, the city engineer is empowered to perform duties and functions
prescribed by ordinances, such as Ordinance No. 092-2000. Thus, the city engineer has the
authority to cause the removal of structures found to have violated the ordinance.
On the other hand, herein respondents maintain that Ordinance No. 092-2000 is invalid for the
following reasons: .first, Section 7 thereof contradicts the National Building Code because
while the latter does not impose a minimum setback from the property lines abutting the road
right-of- way, the said provision requires a 10-meter setback. Second, Section 8's
establishment of "regulated areas" in keeping with aesthetic purposes of the surroundings is
not a valid exercise of police power. Third, the fees required by Section 37 of the ordinance are
excessive, confiscatory, and oppressive. Fourth, Section 45, insofar as it empowers the
building official to cause the removal of erring billboards, is an undue delegation of derivative
power. Under the National Building Code, the building official's authority is limited to the
determination of ruinous and dangerous buildings and structures. 24
The Ruling of the Court
The petition is meritorious.
We disagree with the Court of Appeals when it declared Sections 7, 8, 37, and 45 of Ordinance
No. 092-2000 as unconstitutional, thus, null and void for being inconsistent with the National
Building Code. However, the validity of Ordinance No. 092-2000 is being upheld for reasons
different from those espoused by the petitioners.
It is settled that an ordinance's validity shall be upheld if the following requisites are
present: First, the local government unit must possess the power to enact an ordinance
covering a particular subject matter and according to the procedure prescribed by
law. Second, the ordinance must not contravene the fundamental law of the land, or an act of
the legislature, or must not be against public policy or must not be unreasonable, oppressive,
partial, discriminating or in derogation of a common right. 25
The power to regulate billboards was
validly delegated to the local city
council via Davao's charter
Ordinance No. 092-2000, which regulates the construction and installation of building and
other structures such as billboards within Davao City, is an exercise of police power. 26 It has
been stressed in Metropolitan Manila Development Authority v. Bel-Air Village
Association27 that while police power is lodged primarily in the National Legislature, Congress
may delegate this power to local government units. Once delegated, the agents can exercise
only such legislative powers as are conferred on them by the national lawmaking body.
Republic Act No. 4354 otherwise known as the Revised Charter of the City of Davao (Davao
City Charter),28 enacted on June 19, 1965, vested the local Sangguniang Panlungsod with
the legislative power to regulate, prohibit, and fix license fees for the display,
construction, and maintenance of billboards and similar structures.
With the aforementioned law, Congress expressly granted the Davao City government,
through the Sangguniang Panlungsod, police power to regulate billboard structures within its
territorial jurisdiction.29
Petitioners failed to allege the specific
constitutional provision violated
The records reveal that while petitioners claim that Ordinance No. 092-2000 is
unconstitutional, they have not pointed to any specific constitutional provision it allegedly
violated. The settled rule is that an ordinance is presumed constitutional and valid. 30 This
presumption may only be overcome by a showing of the ordinance's clear and unequivocal
breach of the Constitution.31
To invalidate an ordinance based on a bare and unilateral declaration that it is unconstitutional
is an affront to the wisdom not only of the legislature that passed it but also of the executive
which approved it.32
Consistency between Ordinance No.
092-2000 and the National Building
Code is irrelevant
The Court of Appeals ruled that Ordinance No. 092-2000 is invalid because it contradicts the
provisions of the National Building Code, i.e., the. Ordinance imposes additional requirements
not provided in the National Building Code and even expanded the authority of the city building
We disagree.
As stated earlier, the power to regulate billboards within its territorial jurisdiction has been
delegated by Congress to the city government via the Davao City Charter. This direct and
specific grant takes precedence over requirements set forth in another law of general
application,33 in this case the National Building Code. Stated differently, the city government
does not need to refer to the procedures laid down in the National Building Code to exercise
this power.
Thus, the consistency between Ordinance No. 092-2000 with the National Building Code
is irrelevant to the validity of the former.1âшphi1
To be clear, even if the National Building Code imposes minimum requirements as to the
construction and regulation of billboards, the city government may impose stricter
limitations because its police power to do so originates from its charter and not from
the National Building Code. The ordinance specifically governs billboards and other similar
structures situated within Davao City, independent of the provisions of the National Building
Code.
Ordinance No. 092-2000 is a valid
exercise of police power
An ordinance constitutes a valid exercise of police power if: (a) it has a lawful subject such
that the interests of the public generally, as distinguished from those of a particular class,
require its exercise; and (b) it uses a lawful method such that its implementing measures
must be reasonably necessary for the accomplishment of the purpose and not unduly
oppressive upon individuals.34
28
First, Ordinance No. 092-2000 seeks to regulate all signs and sign structures based on
prescribed· standards as to its location, design, size, quality of materials, construction and
maintenance35 to: (a) safeguard the life and property of Davao City's inhabitants; (b) keep the
surroundings clean and orderly; (c) ensure public decency and good taste; and (d) preserve a
harmonious aesthetic relationship of these structures as against the general surroundings. 36

Second, the ordinance employs the following rules in implementing its policy, viz.: (a) Minimum
distances must be observed in installing and constructing outdoor billboards (i.e., 150 meters
unobstructed line of sight, 10 meters away from the property lines abutting the right-of-
way);37 (b) Additional requirements shall be observed (i.e., billboards shall have a maximum
total height of 17 meters, the top and bottom lines of billboards shall follow a common
base)38 in locations designated as "regulated areas" to preserve the natural view and beauty of
the Davao River, Mt. Apo, the Davao City Skyline, and the view of Samal Island; 39 ( c) Sign
permits must be secured from and proper fees paid to the city government; 40 and (d) Billboards
without permits, without the required marking signs, or otherwise violative of any provision
thereof shall be removed, allowing the owner 60 days from receipt of notice to correct and
address its violation.41

The Court will not be quick at invalidating an ordinance as unreasonable unless the rules
imposed are so excessive as to be prohibitive, arbitrary, unreasonable, oppressive, or
confiscatory.42 It must be remembered that the local legislative authority has a wide discretion
to determine not only what the interests of the public require but also what measures are
necessary for the protection of such interests. 43 We accord high respect to the Sanggunian's
issuance because the local council is in the best position to determine the needs of its
constituents.44

In the same vein, Ordinance No. 092-2000 reflects the wisdom of the Sangguniang
Panlungsod as elected representatives of the people of Davao City. In local affairs, acts
of local officials must be upheld when it is clear that these were performed squarely
within the statutory authority granted to them and in the exercise of their sound
discretion.45

For the foregoing reasons, the validity of Ordinance No. 092-2000, including the provisions at
issue in the present petition, viz.: Sections 7, 8, 3 7, and 45 must be upheld.

By way of an observation, We note that petitioner City Engineer issued orders of demolition
that required erring outdoor advertising businesses to correct the defects of their structures
within three days from receipt of notice. Otherwise, the billboard will be summarily removed.
In said orders dated March 17, 200646 and September 25, 2008,47 the summary removal
operations were March 30, 2006 and October 8, 2008, respectively. These orders of
demolition, however, violate Section 45 of the ordinance inasmuch as the orders do not
observe the reglementary periods granted to erring billboard owners. Section 45 clearly gives
the owners at least 60 days to correct any defect suffered by their structures and altogether
comply with the ordinance requirements.

WHEREFORE, in view of all the foregoing, the instant petition is GRANTED. The Decision and
Amended Decision of the Court of Appeals dated June 14, 2011 and October 13, 2011,
respectively, in CA-G.R. CV No. 02281-MIN are hereby REVERSED and SET ASIDE.

SO ORDERED.

29
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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 Decision 1 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.
30
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
17
unreasonable, and undue restraint of trade."
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.1âwphi1 The
October 2, 2002 Decision and the 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.
31
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 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.

The petitioners are mistaken. Ordinance No. 303, Series of 2000, has no bearing to the case Ordinance No. 192, as amended, is, therefore, not a curative statute which may be applied
at hand. retroactively.

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
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.

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
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.

The petitioners argue that while Section 5 of Ordinance No. 192 may be invalid, Section 3.1 No pronouncement as to costs.
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.
SO ORDERED.

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

32
G.R. No. 189185, August 16, 2016
WILFREDO MOSQUEDA, MARCELO VILLAGANES, JULIETA LAWAGON,
CRISPIN ALCOMENDRAS, CORAZON SABINADA, VIRGINIA CATA-AG,
FLORENCIA SABANDON, AND LEDEVINA ADLAWAN, Petitioners, v.
PILIPINO BANANA GROWERS & EXPORTERS ASSOCIATION, INC., DAVAO
FRUITS CORPORATION, AND LAPANDAY AGRICULTURAL AND
DEVELOPMENT CORPORATION, Respondents.
G.R. No. 189305
CITY GOVERNMENT OF DAVAO, Petitioner, v. COURT OF APPEALS,
PILIPINO BANANA GROWERS & EXPORTERS ASSOCIATION (PBGEA),
DAVAO FRUITS CORPORATION, AND LAPANDAY AGRICULTURAL AND
DEVELOPMENT CORPORATION, Respondent.
DECISION
BERSAMIN, J.:
This appeal through the consolidated petitions for review on certiorari assails the
decision promulgated on January 9, 20091 whereby the Court of Appeals (CA)
reversed and set aside the judgment rendered on September 22, 2007 by the
Regional Trial Court (RTC), Branch 17, in Davao City upholding the validity and
constitutionality of Davao City Ordinance No. 0309-07, to wit:
WHEREFORE, premises considered, the appeal is GRANTED. The assailed
September 22, 2007 Decision of the Regional Trial Court (RTC), 11th Judicial
Region, Branch 17, Davao City, upholding the validity and constitutionality of
Davao City Ordinance No. 0309-07, is hereby REVERSED and SET ASIDE.
FURTHER, the Writ of Preliminary Injunction dated 28 January 2008 enjoining the
City Government of Davao, and any other person or entity acting in its behalf,
from enforcing and implementing City Ordinance No. 0309-07, is hereby made
permanent.
SO ORDERED.
Antecedents
After several committee hearings and consultations with various stakeholders, the
Sangguniang Panlungsod of Davao City enacted Ordinance No. 0309, Series of
2007, to impose a ban against aerial spraying as an agricultural practice by all
agricultural entities within Davao City, viz.:
ORDINANCE NO. 0309-07
Series of 2007
AN ORDINANCE BANNING AERIAL SPRAYING AS AN AGRICULTURAL PRACTICE IN
ALL AGRICULTURAL ACTIVITIES BY ALL AGRICULTURAL ENTITIES IN DAVAO CITY
Be it enacted by the Sangguniang Panlungsod of Davao City in session assembled
that:
1. TITLE. This Ordinance shall be known as "An Ordinance Banning Aerial Spraying
as an Agricultural Practice in all Agricultural Activities by all Agricultural Entities in
Davao City";
SECTION 2. POLICY OF THE CITY. It shall be the policy of the City of Davao to
eliminate the method of aerial spraying as an agricultural practice in all
agricultural activities by all entities within Davao City;
SECTION 3. DEFINITION OF TERMS:
Aerial Spraying - refers to application of substances through the use of aircraft of
any form which dispenses the substances in the air.
b. Agricultural Practices - refer to the practices conducted by agricultural entities
in relation to their agricultural activities;
c. Agricultural Activities - refer to activities that include, but not limited to, land
preparation, seeding, planting, cultivation, harvesting and bagging;
d. Agricultural Entities - refer to persons, natural or juridical, involved in
agricultural activities
e. Buffer Zone - is an identified 30-meter zone within and around the boundaries
of agricultural farms/plantations that need special monitoring to avoid or minimize
harm to the environment and inhabitants pursuant to policies and guidelines set
forth in this Ordinance and other government regulations. It is an area of land that
must lie within the property which does not include public lands, public
thoroughfares or adjacent private properties. It must be planted with diversified
trees that grow taller than what are usually planted and grown in the plantation to
protect those within the adjacent fields, neighboring farms, residential area,
schools and workplaces.
SECTION 4. SCOPE AND APPLICABILITY - The provisions of this Ordinance shall
apply to all agricultural entities within the territorial jurisdiction of Davao City;
SECTION 5. BAN OF AERIAL SPRAYING - A ban on aerial spraying shall be strictly
enforced in the territorial jurisdiction of Davao City three (3) months after the
effectivity of this Ordinance.
SECTION 6. BUFFER ZONE - Consistent with national legislation and government
regulations, all agricultural entities must provide for a thirty (30) meter buffer
zone within the boundaries of their agricultural farms/plantations. This buffer zone
must be properly identified through Global Positioning System (GPS) survey. A
survey plan showing the metes and bounds of each agricultural farm/plantation
must be submitted to the City Mayor's Office, with the buffer zone clearly
identified therein;
SECTION 7. PENAL PROVISION - Violation of any provision of this Ordinance shall
be punished as follows:
First Offense: Fine of P5,000.00 and imprisonment of not less than one (1) month
but not more than three (3) months;
b. Second Offense: Fine of P5,000.00 and imprisonment of not less than three (3)
months but not more than six (6) months and suspension of City-issued permits
and licenses for one (1) year;
c. Third Offense: Fine of P5,000.00 and imprisonment of not less than six (6)
months but not more than one (1) year and perpetual cancellation of City issued
permits and licenses;
Provided, that in case the violation has been committed by a juridical person, the
person in charge of the management thereof shall be held liable;
SECTION 8. REPEALING CLAUSE - Any Ordinance that is contrary to or
inconsistent with any of the provisions of this Ordinance shall be deemed amended
or repealed accordingly.
SECTION 9. EFFECTIVITY - This Ordinance shall take effect thirty (30) days from
its publication in a newspaper of general circulation in Davao City;
ENACTED, January 23, 2007 by a majority vote of all the Members of the
Sangguniang Panlungsod.2
City Mayor Rodrigo Duterte approved the ordinance on February 9, 2007.3 The
ordinance took effect on March 23, 2007 after its publication in the newspaper
Mindanao Pioneer.4 Pursuant to Section 5 of the ordinance, the ban against aerial
spraying would be strictly enforced three months thereafter.
The Pilipino Banana Growers and Exporters Association, Inc. (PBGEA) and two of
its members, namely: Davao Fruits Corporation and Lapanday Agricultural and
Development Corporation (PBGEA, et al.), filed their petition in the RTC to
challenge the constitutionality of the ordinance, and to seek the issuance of
provisional reliefs through a temporary restraining order (TRO) and/or writ of
preliminary injunction.5 They alleged that the ordinance exemplified the
unreasonable exercise of police power; violated the equal protection clause;
amounted to the confiscation of property without due process of law; and lacked
publication pursuant] to Section 5116 of Republic Act No. 7160 (Local Government
Code).
On May 8, 2007, the residents living within and adjacent to banana plantations in
Davao City led by Wilfredo Mosqueda,7 joined by other residents of Davao City,8
(Mosqueda, et al.) submitted their Motion for Leave to Intervene and Opposition to
the Issuance of a Preliminary Injunction.9 The RTC granted their motion on June
4, 2007.10chanrobleslaw
On June 20, 2007, the RTC granted the prayer for issuance of the writ of
preliminary injunction, and subsequently issued the writ.11chanrobleslaw
Judgment of the RTC
On September 22, 2007, after trial, the RTC rendered judgment declaring
Ordinance No. 0309-07 valid and constitutional, decreeing thusly:
WHEREFORE, finding the subject [O]rdinance No. 0309-07 valid and constitutional
in all aspect of the grounds assailed by the petitioner, said [C]ity [O]rdinance No.
0309-07, is sustained of its validity and constitutionality.
Accordingly, the order of this court dated June 20, 2007, granting the writ of
preliminary injunction as prayed for by petitioner is ordered cancelled and set
aside as a result of this decision.
SO ORDERED.
The RTC opined that the City of Davao had validly exercised police power13 under
the General Welfare Clause of the Local Government Code;14 that the ordinance,
being based on a valid classification, was consistent with the Equal Protection
Clause; that aerial spraying was distinct from other methods of pesticides
application because it exposed the residents to a higher degree of health risk
caused by aerial drift;15 and that the ordinance enjoyed the presumption of
constitutionality, and could be invalidated only upon a clear showing that it had
violated the Constitution.16chanrobleslaw
However, the RTC, recognizing the impracticability of the 3-month transition
period under Section 5 of Ordinance No. 0309-07, recommended the parties to
agree on an extended transition period.17chanrobleslaw
Decision of the CA
PBGEA, et al. appealed,18 and applied for injunctive relief from the CA,19 which
granted the application20 and consequently issued a TRO to meanwhile enjoin the
effectivity of the ordinance.21chanrobleslaw
On January 9, 2009, the CA promulgated its assailed decision reversing the
judgment of the RTC.22 It declared Section 5 of Ordinance No. 0309-07 as void
and unconstitutional for being unreasonable and oppressive; found the three-
month transition period impractical and oppressive in view of the engineering and
technical requirements of switching from aerial spraying to truck-mounted boom
spraying; and opined that the ban ran afoul with the Equal Protection Clause
inasmuch as Section 3(a) of the ordinance - which defined the term aerial spraying
- did not make reasonable distinction between the hazards, safety and beneficial
effects of liquid substances that were being applied aerially; the different classes
of pesticides or fungicides; and the levels of concentration of these substances
that could be beneficial and could enhance agricultural production.
The CA did not see any established relation between the purpose of protecting the
public and the environment against the harmful effects of aerial spraying, on one
33
hand, and the imposition of the ban against aerial spraying of all forms of
substances, on the other. It ruled that the maintenance of the 30-meter buffer
zone within and around the agricultural plantations under Section 6 of Ordinance
No. 0309-07 constituted taking of property without due process because the
landowners were thereby compelled to cede portions of their property without just
compensation; that the exercise of police power to require the buffer zone was
invalid because there was no finding that the 30-meter surrounding belt was
obnoxious to the public welfare; and that, accordingly, Ordinance No. 0309-07 was
unconstitutional because of the absence of a separability clause.
The City of Davao and the intervenors filed their respective motions for
reconsideration, but the CA denied the motions on August 7, 2009.23
Hence, the separate, but now consolidated, appeals by petition for review on
certiorari.
Issues
In G.R. No. 189185, petitioners Mosqueda, et al. rely on the following grounds,
namely:
I not only seek to protect and promote human health but also serves as a measure
THE COURT OF APPEALS IGNORED FUNDAMENTAL PRECEPTS AND CONCEPTS OF
LAW WHICH, PROPERLY CONSIDERED, NECESSARILY LEAD TO THE CONCLUSION
THAT THE DAVAO ORDINANCE IS CONSTITUTIONAL AND VALID
II
THE DAVAO ORDINANCE IS CONSISTENT WITH THE EQUAL PROTECTION CLAUSE
III
THE MEANS EMPLOYED BY THE DAVAO ORDINANCE IS MORE THAN REASONABLY
RELATED TO THE PURPOSE IT SEEKS TO ACHIEVE
IV
THE DAVAO ORDINANCE IS VALID, BEING DEMONSTRABLY REASONABLE AND
FAIR
V related complaints of the residents need not be proven by medical records
THE REQUIREMENT RELATING TO THE 30-METER BUFFER ZONE ARE [SIC]
CONSISTENT WITH DUE PROCESS OF LAW, BEING A VALID EXERCISE OF POLICE
POWER
Mosqueda, et al. state that the CA ignored well-established precepts like the
primacy of human rights over property rights and the presumption of validity in
favor of the ordinance; that the CA preferred the preservation of the profits of
respondents PBGEA, et al. to the residents' right to life, health and ecology,24
thereby disregarding the benevolent purpose of the ordinance; that the CA
assumed the functions of the lawmaker when it set aside the wisdom behind the
enactment of the ordinance; that the CA failed to apply the precautionary
principle, by which the State was allowed to take positive actions to prevent harm
to the environment and to human health despite the lack of scientific certainty;
that the CA erred in applying the "strict scrutiny method" in holding that the
ordinance violated the Equal Protection Clause because it only thereby applied in
reviewing classifications that affected fundamental rights; that there was nothing
wrong with prohibiting aerial spraying per se considering that even the aerial
spraying of water produced drift that could affect unwilling neighbors whose,
constitutional right to a clean and healthy environment might be
impinged;25cralawred that as far as the three-month period was concerned, the
CA should have considered that manual spraying could be conducted while the
PBGEA, et al. laid down the preparations for the conduct of boom spraying;26 that
"reasonableness" could be more appropriately weighed by balancing the interests
of the parties against the protection of basic rights, like the right to life, to health,
and to a balanced and healthful ecology;27 that PBGEA, et al. did not substantiate
their claim of potential profit losses that would result from the shift; that business
profits should remain inferior and subordinate to their fundamental rights as
residents of Davao City, which were the rights that the assailed ordinance has
sought to protect;28 that PBGEA, et al. did not explore other modes of pesticide
treatment either as a stop-gap or as a temporary measure while shifting to truck
mounted boom spraying;29 that the imposition of the 30-meter buffer zone was a
valid exercise of police power that necessarily flowed from the protection afforded
by the ordinance from the unwanted effects of ground spraying; that the
imposition of the buffer zone did not constitute compensable taking under police
power, pursuant to the pronouncements in Seng Kee & Co. v. Earnshaw and
Piatt30Patalinghug v. Court of Appeals,31 and Social Justice Society (SJS) v.
Atienza, Jr.;32 and that the 30-meter buffer zone conformed with the ISO
1400033 and the DENR Environmental Compliance Certificate (ECC)
requirement.34
In G.R. No. 189305, petitioner City of Davao submits the following as the issues to
be considered and resolved, to wit:
I humans may result.58chanrobleslaw
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING
THAT SECTION 5 OF ORDINANCE NO. 0309-07, SERIES OF 2007 IS OPPRESSIVE
AND AN UNREASONABLE EXERCISE OF DELEGATED POLICE POWER
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING
THAT ORDINANCE NO. 0309-07 IS VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE OF THE CONSTITUTION;
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING
THAT ORDINANCE NO. 0309-07 CONSTITUTES TAKING OF PROPERTY WITHOUT
COMPENSATION, THUS, VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE
CONSTITUTION
IV
WHETHER OR NOT AERIAL SPRAYING OF FUNGICIDES IS SAFE TO THE PEOPLE
AND THE ENVIRONMENT
The City of Davao explains that it had the authority to enact the assailed ordinance
because it would thereby protect the environment and regulate property and
business in the interest of the general welfare pursuant to Section 458 of the Local
Government Code;35 that the ordinance was enacted to carry out its mandate of
promoting the public welfare under the General Welfare Clause (Section 16 of the
Local Government Code); that the ordinance did not violate the Equal Protection
Clause because the distinction lies in aerial spray as a method of application being
more deleterious than other modes; that aerial spraying produces more drift that
causes discomfort, and an extremely offensive and obnoxious experience the part
of the residents; that spray drift cannot be controlled even with use by the
respondents of highly advanced apparatus, such as the Differential Global
Positioning System, Micronair Rotary Drift Control Atomizers, Intellimap, Intelliflow
Spray Valve System, Control and Display Unit and the Target Flow Spray Valve
Switch System;36 that because of the inherent toxicity of Mancozeb (the fungicide
aerially applied by the respondents), there is no need to provide for a substantial
distinction based on the level of concentration;37 that as soon as fungicides are
released in the air, they become air pollutants pursuant to Section 5 of Republic
Act No. 8749 (Philippine Clean Air Act of 1999),38 and the activity thus falls under
the authority of the local government units to ban; and that the ordinance does
against air pollution.
The City of Davao insists that it validly exercised police power because it does not
thereby oblige the shift from aerial to truck-mounted boom spraying; that the
respondents only choose boom spraying to justify the alleged impracticability of
the transition period by erroneously adding the months required for each of the
stages without considering other steps that may be simultaneously undertaken;39
that the Court should apply its ruling in Social Justice Society v. Atienza, Jr.,40 by
which the six-month period for the folding-up of business operations was declared
a legitimate exercise of police power; that the respondents did not present any
documentary evidence on the feasibility of adopting other methods;41 that only
1,800 hectares out of 5,200 hectares of plantations owned and operated by
PBGEA's members use aerial spraying, hence, the perceived ominous consequence
of imposing a ban on aerial spray to the banana industry is entirely misleading;42
that the urgency of prohibiting aerial spray justifies the three-month transition
period; that the complaints of the community residents - ranging from skin
itchiness, contraction and/or tightening in the chest, nausea, appetite loss and
difficulty in breathing after exposure to spray mist - only prove that aerial spraying
brings discomfort and harm to the residents; that considering that the testimony
of Dr. Lynn Crisanta R. Panganiban, a pharmacologist and toxicologist, established
that fungicides could cause debilitating effects on the human body once inhaled or
digested, the CA erred in holding that there was no correlation between aerial
application and the complaints of the residents; that given that aerial spray
produces more drift and is uncontrollable compared to the other methods of
applying fungicides, the ordinance becomes reasonable;43 and that the medical-
considering that these were based on personal knowledge.44chanrobleslaw
The City of Davao contends that the imposition of the 30-meter buffer zone is a
valid exercise of police power, rendering the claim for just compensation
untenable; that the maintenance of the buffer zone does not require the
respondents to cede a portion of their landholdings; that the planting of diversified
trees within the buffer zone will serve to insulate the residents from spray drift;
that such buffer zone does not deprive the landowners of the lawful and beneficial
use of their property;45 and that the buffer zone is consistent with the
Constitution, which reminds property owners that the use of property bears a
social function.46chanrobleslaw
In their comment, the respondents posit that the petition of the City; of Davao
should be dismissed for failure to attach material portions of the records, and for
raising factual errors that are not within the realm of this appeal by petition for
review on certiorari;47 that the CA correctly declared the ordinance as
unreasonable due to the impossibility of complying with the three-month transition
period; that shifting from aerial to truck-mounted boom spraying will take at least
three years and entails careful planning, equipment and machineries, civil works,
and capital funding of at least P400,000,000.00;48 that the Court could rely on its
ruling in City of Manila v. Laguio, Jr.,49 where an ordinance directing an existing
establishment to wind up or to transfer its business was declared as confiscatory in
nature, and, therefore, unconstitutional;50 that the total ban against aerial
sprayig, coupled with the inadequate time to shift to truck-mounted boom
spraying, effectively deprives the respondents with an efficient means to control
the spread of the Black Sigatoka disease that threatens the banana plantations;
that the ordinance will only expose the plantations to the virulent disease that is
capable of infecting 60% of the plantations on a single cycle51 missed;52 that
compared with other modes of application, aerial spraying is more cost-efficient,
safe and accurate; that truck-mounted boom spraying, for instance, requires 80-
200 liters of solution per hectare,53 while manual spraying uses 200-300 liters of
solution per hectare; that aerial spraying oily requires 30 liters per hectare; that in
terms of safety and accuracy, manual spraying is the least safe and accurate,54
and produces more drift than aerial spraying;55 that due to the 300-liter solution
required, the workers will be more exposed to the solution during manual
application and such application will thus be more in conflict with the purpose of
the ordinance to prevent human exposure;56 that the respondents also find the
irrigation sprinklers suggested by the City of Davao as wasteful, unsafe and
impractical because it cannot provide the needed coverage for application of the
solution to effectively control. the Black Sigatoka disease; that in contrast, aerial
application, coupled with the latest state of the art technology and equipment,
ensures accuracy, effectiveness, efficiency and safety compared to the other
methods of application; that the respondents vouch for the safety of the fungicides
they use by virtue of such fungicides having been registered with the Fertilizer and
Pesticide Authority (FPA) and classified as Category IV,57 and found to be mild;
and that oral ingestion in large doses is required before any adverse effects to
The respondents lament that the ban was imposed without any scientific basis;
that the report59 prepared by a fact-finding team (composed of the Vice Mayor,
the City Health Officer, The City Planning and Development Coordinator and the
Assistance City Planning and Development Coordinator) organized by the City of
Davao revealed that there was no scientific evidence to support the clamor for the
ban against aerial spraying; that furthermore, national government agencies like
the Department of Agriculture (DA), Department of Health (DOR) and the
Department of Trade and Industry (DTI) similarly concluded that there was no
scientific evidence to support the ban;60 that for four decades since the adoption
of aerial spraying, there has been no reported outbreak or any predisposition to
ailment connected with the pesticides applied; that the testimonies of the
residents during the trial were mere "emotional anecdotal evidence" that did not
establish any scientific or medical bases of any causal connection between the
alleged health conditions complained of and the fungicides applied during aerial
spraying;61 that the allegations of health and environmental harm brought by the
pesticides used to treat the banana plantations were unfounded; that the 2001
study of the International Agency for Research on Cancer showed that, contrary to
the claim of Dra. Panganiban, the by-product of Mancozeb (Ethylenethiourea or
ETU) was "non-genotoxic" and not expected to produce thyroid cancer;62 that
Carlos Mendoza, a geo-hydrologist and geophysicist, testified that underground
34
water contamination through aerial spraying would be impossible because of the
presence of latex, thick layers of clay and underlying rock formations;63 that even
the study conducted by the Philippine Coconut Authority (PCA) showed that the
rhinoceros beetle infestation in coconut plantations adjacent to the banana
plantations was due to the farmer's failure to observe phyto-sanitary measures,
not to aerial spraying;64 that furthermore, aerial spraying is internationally
accepted as a "Good Agricultural Practice" (GAP)65 under the International Code
of Conduct on the Distribution and Use of Pesticides by the United Nations-Food
and Agricultural Organization (UN-FAO); that as such, they observe the standards
laid down by the UN-FAO, and utilize aerial spraying equipment that will ensure
accuracy, safety and efficiency in applying the substances, and which more than
complies with the requirement under the Guidelines on Good Practice for Aerial
Application of Pesticides (Rome 2001);66 that in addition, they strictly observe
standard operating procedures prior to take-off,67 in-flight68 and post-flight;69
that they substantially invested in state-of-the-art technology and equipment
designed to ensure safety, accuracy, and effectiveness of aerial spraying
operations, to avoid aerial drift;70 that their equipment include: wind meters (to
measure the wind velocity in a specific area), wind cones (to determine the wind
direction, and whether the wind is a headwind, tailwind or a crosswind); central
weather station (to measure wind speed, the temperature and relative humidity),
Differential Global Positioning System (DGPS),71 Intellimap,72 Control and Display
Unit,73 Micronair Rotary Drift Control Atomizers (AU 5000 Low-Drift model),74
Intelliflow Spray Valve System,75 and Target Flow Spray Valve Switch System;76
and that they want to minimize, if not, eliminate the occurrence of spray drift in
order to minimize wastage of resources and reduced efficiency of spraying
programs implemented to control the Black Sigatoka disease.77chanrobleslaw
The respondents maintain that Ordinance No. 0309-07 will regulate aerial spraying
as a method of application, instead of the substances being used therein; that the
prohibition is overbroad in light of other available reasonable measures that may
be resorted to by the local government; that the ordinance is unreasonable,
unfair, oppressive, and tantamount to a restriction or prohibition of trade;78 that
the ordinance will effectively impose a prohibition against all pesticides, including
fungicides that fall under the mildest type of substance; that as such, the
petitioner has disregarded existing valid and substantive classifications established
and recognized by the World Health Organization (WHO) that are adopted by the
FPA; that the FPA is the national agency armed with the professional competence,
technical expertise, and legal mandate to deal with the issue of use and
application of pesticides in our country; that the fungicides they administer are
duly registered with the FPA, and with other more developed countries that have
observed a stricter environmental and public health regulation such as the United
States Environmental Protection Agency (EPA) and the European Union (EU); that
as such, the City of Davao has disregarded valid, substantial and significant
distinctions between levels of concentration of the fungicides in the water solution
aerially sprayed; that it is the FPA that regulates the level of concentration of
agricultural chemicals prior to commercial distribution and use in the country; that
the members of PBGEA only spray a water solution (water cocktail) containing 0.1
liter to 1.5 liters of the active ingredient of fungicide in a 30-liter water solution
per hectare that has undergone rigorous testing and .evaluation prior to
registration by the FPA; that the active ingredients of the fungicide are so diluted
that no harm may be posed to public health or to the environment through aerial
application;79 that the ordinance was so broad that it prohibits aerial application
of any substance, including water;80 and that aside from fungicides, the
respondents also aerially apply vitamins, minerals and organic
fertilizers.81chanrobleslaw
The respondents submit that the maintenance of the 30-meter buffer zone under
Section 5 of the ordinance constitutes an improper exercise of police power; that
the ordinance will require all landholdings to maintain the buffer zone, thereby
diminishing to a mere 1,600 square meters of usable and productive land for every
hectare of the plantation bounding residential areas, with the zone being reserved
for planting "diversified trees;" that this requirement amounts to taking without
just compensation or due process; and that the imposition of the buffer zone
unduly deprives all landowners within the City of Davao the beneficial use of their
property;82 that the precautionary principle cannot be applied blindly, because its
application still requires some scientific basis; that the principle is also based on a
mere declaration that has not even reached the level of customary international
law, not on a treaty binding on the Government.83chanrobleslaw
The respondents argue that the illegality of the transition period results in the
invalidity of the ordinance as it does not carry a separability clause; and that the
absence of such clause signifies the intention of the Sangguniang Panlungsod of
City of Davao to make the ordinance effective as a whole.84chanrobleslaw
The main issue is whether or not Ordinance No. 0309-07 is unconstitutional on due
process and equal protection grounds for being unreasonable and oppressive, and
an invalid exercise of police power: (a) in imposing a ban on aerial spraying as an
agricultural practice in Davao City under Section 5; (b) in decreeing a 3-month
transition-period to shift to other modes of pesticide application under Section 5;
and (c) in requiring the maintenance of the 30-meter buffer zone under Section 6
thereof in all agricultural lands in Davao City.
Ruling of the Court
We deny the petitions for review for their lack of merit.
I necessary, appropriate, or incidental for its efficient and effective governance, and
Preliminary considerations:
The significant role of the banana industry in ensuring economic stability and food
security
There is no question that the implementation of Ordinance No. 0309-07, although
the ordinance concerns the imposition of the ban against aerial spraying in all
agricultural lands within Davao City, will inevitably have a considerable impact on
the country's banana industry, particularly on export trading.
Banana exportation plays a significant role in the maintenance of the country's
economic, stability and food security. Banana is a consistent dollar earner and the
fourth largest produced commodity in the Philippines.85 In 2010, the Philippines
figured among the top three banana producing countries in the world.86 In 2014,
fresh bananas accounted for 17% of the country's top agricultural export
commodities, gaining a close second to coconut oil with 18%.87 The Davao Region
(Region XI)88 was the top banana producing region in 2013, with a production
growth rate of 16.4%, and 33.76% share in the total agricultural output of the
Region.89chanrobleslaw
Despite these optimistic statistics, the banana industry players struggle to keep up
with the demands of the trade by combatting the main threat to production posed
by two major fungal diseases: the Panama Disease Tropical Race 4 (Fusarium
oxysprum f.sp. cubense) and the Black Sigatoka leaf spot disease (Mycosphaerella
ffiensis morelet). Pesticides have proven to be effective only against the Black
Sigatoka disease. There is yet no known cure for the Panama
disease.90chanrobleslaw
The menace of the Black Sigatoka disease cannot be taken lightly. The disease
causes destruction of the plant by significantly reducing the leaf area, leading to
premature ripening of the produce and resulting in yield losses of at least 50%.91
Due to its effects on banana export trading, the disease has emerged as a global
concern that has correspondingly forced banana producers to increase the use of
chemical pesticides.92 Protectant fungicides such as Mancozeb, chlorothalonil and
Propiconazole are applied to combat the disease.93 These agricultural chemicals
are aerially applied by the respondents in the banana plantations within the
jurisdiction of Davao City to arrest the proliferation of the disease.
Considering that banana export plantations exist in vast monocultures, effective
treatment of the Black Sigatoka disease is done by frequent aerial application of
fungicides. This is an expensive practice because it requires permanent landing
strips, facilities for the mixing and loading of fungicides, and high recurring
expense of spray materials.94 The cost of aerial spraying accounts to 15-20% of
the final retail price of the crop, making the technology essentially unavailable to
small landholdings that are more vulnerable to the disease.95chanrobleslaw
Aerial spraying has become an agricultural practice in Davao City since the
establishment of the banana plantations in 1960.96 Out of the 5,205 hectares of
commercial plantations devoted to Cavendish banana being operated by the
respondents in Davao City,97 around 1,800 hectares receive treatment through
aerial application. These plantations are situated in Barangays Sirib, Manuel
Guianga, Tamayong, Subasta Dacudao, Lasang, Mandug, Waan, Tigatto and
Callawa,98 and are affected by the ban imposed by Ordinance No. 0309-07. The
DTI has issued a statement to the effect that the ban against aerial spraying in
banana plantations "is expected to kill the banana industry," affects the socio-
economic development of the barangays hosting the affected plantations, and has
a disastrous impact on export trading. The DTI has forecasted that the ban would
discourage the entry of new players in the locality, which would have a potential
drawback in employment generation.99chanrobleslaw
II
The Sangguniang Bayan of Davao City enacted Ordinance No. 0309-07 under its
corporate powers
The petitioners assert that Ordinance No. 0309-07 is a valid act of the
Sangguniang Bayan of Davao City- pursuant to its delegated authority to exercise
police power in the furtherance of public welfare and in ensuring a sound and
balanced environment for its constituents. The respondents negate this assertion,
describing the ordinance as unreasonable, discriminatory and oppressive.
The petitioners' assertion of its authority to enact Ordinance No. 0309-07 is
upheld.
To be considered as a valid police power measure, an ordinance must pass a two-
pronged test: the formal (i.e., whether the ordinance is enacted within the
corporate powers of the local government unit, and whether it is passed in
accordance with the procedure prescribed by law); and the substantive (i.e.,
involving inherent merit, like the conformity of the ordinance with the limitations
under the Constitution and the statutes, as well as with the requirements of
fairness and reason, and its consistency with public policy).100chanrobleslaw
The formalities in enacting an ordinance are laid down in Section 53101 and
Section 54102 of The Local Government Code. These provisions require the
ordinance to be passed by the majority of the members of the sanggunian
concerned, and to be presented to the mayor for approval. With no issues
regarding quorum during its deliberation having been raised, and with its approval
of by City Mayor Duterte not being disputed, we see no reason to strike down
Ordinance No. 0309-07 for non-compliance with the formal requisites under the
Local Government Code.
We next ascertain whether the City of Davao acted within the limits of its
corporate powers in enacting Ordinance No. 0309-07.
The corporate powers of the local government unit confer the basic authority to
enact legislation that may interfere with personal liberty, property, lawful
businesses and occupations in order to promote the general welfare.103 Such
legislative powers spring from the delegation thereof by Congress through either
the Local Government Code or a special law. The General Welfare Clause in
Section 16 of the Local Government Code embodies the legislative grant that
enables the local government unit to effectively accomplish and carry out the
declared objects of its creation, and to promote and maintain local autonomy.104
Section 16 reads:
Sec. 16. General Welfare. — Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers
those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support
among other things, the preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social
justice, promote full employment among their residents, maintain peace and
order, and preserve the comfort and convenience of their inhabitants.
Section 16 comprehends two branches of delegated powers, namely: the general
legislative power and the police power proper. General legislative power refers to
the power delegated by Congress to the local legislative body, or the Sangguniang
Panlungsod in the case of Dayao City,105 to enable the local legislative body to
enact ordinances and make regulations. This power is limited in that the enacted
ordinances must not be repugnant to law, and the power must be exercised to
effectuate and discharge the powers and duties legally conferred to the local
legislative body. The police power proper, on the other hand, authorizes the local
government unit to enact ordinances necessary and proper for the health and
safety, prosperity, morals, peace, good order, comfort, and convenience of the
local government unit and its constituents, and for the protection of their
property.106chanrobleslaw
Section 458 of the Local Government Code explicitly vests the local government
unit with the authority to enact legislation .aimed at promoting the general
welfare, viz.:
Section 458. Powers, Duties, Functions and Compensation. — (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
35
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. x x x
In terms of the right of the citizens to health and to a balanced and healthful
ecology, the local government unit takes its cue from Section 15 and Section 16,
Article II of the 1987 Constitution. Following the provisions of the Local
Government Code and the Constitution, the acts of the local government unit
designed to ensure the health and lives of its constituents and to promote a
balanced and healthful ecology are well within the corporate powers vested in the
local government unit. Accordingly, the Sangguniang Bayan of Davao City is
vested with the requisite authority to enact an ordinance that seeks to protect the
health and well-being of its constituents.
The respondents pose a challenge against Ordinance No. 0309-07 on the ground
that the Sangguniang Bayan of Davao City has disregarded the health of the
plantation workers, contending that by imposing the ban against aerial spraying
the ordinance would place the plantation workers at a higher health risk because
the alternatives of either manual or truck-boom spraying method would be
adopted; and that exposing the workers to the same risk sought to be prevented
by the ordinance would defeat its purported purpose.
We disagree with the respondents.
With or without the ban against aerial spraying, the health and safety of plantation
workers are secured by existing state policies, rules and regulations implemented
by the FPA, among others, which the respondents are lawfully bound to comply
with. The respondents even manifested their strict compliance with these rules,
including those in the UN-FAO Guidelines on Good Practice for Aerial Application of
Pesticides (Rome 2001). We should note that the Rome 2001 guidelines require
the pesticide applicators to observe the standards provided therein to ensure the
health and safety of plantation workers. As such, there cannot be any imbalance
between the right to health of the residents vis-a-vis the workers even if a ban will
be imposed against aerial spraying and the consequent adoption of other modes of
pesticide treatment.
Furthermore, the constitutional right to health and maintaining environmental
integrity are privileges that do not only advance the interests of a group of
individuals. The benefits of protecting human health and the environment
transcend geographical locations and even generations. This is the essence of
Sections 15 and 16, Article II of the Constitution. In Oposa v. Factoran, Jr.107 we
declared that the right to a balanced and healthful ecology under Section 16 is an
issue of transcendental importance with intergenerational implications. It is under
this milieu that the questioned ordinance should be appreciated.
Advancing the interests of the residents who are vulnerable to the alleged health
risks due to their exposure to pesticide drift justifies the motivation behind the
enactment of the ordinance. The City of Davao has the authority to enact pieces of
legislation that will promote the general welfare, specifically the health of its
constituents. Such authority should not be construed, however, as a valid license
for the City of Davao to enact any ordinance it deems fit to discharge its mandate.
A thin but well-defined line separates authority to enact legislations from the
method of accomplishing the same.
By distinguishing authority from method we face this question: Is a prohibition
against aerial spraying a lawfully permissible method that the local government
unit of Davao City may adopt to prevent the purported effects of aerial drift? To
resolve this question, the Court must dig deeper into the intricate issues arising
from these petitions.
II
Ordinance No. 0309-07 violates the Due Process Clause
A valid ordinance must not only be enacted within the corporate powers of the
local government and passed according to the procedure prescribed by law.108 In
order to declare it as a valid piece of local legislation, it must also comply with the
following substantive requirements, namely: (1) it must not contravene the
Constitution or any statute; (2) it must be fair, not oppressive; (3) it must not be
partial or discriminatory; (4) it must not prohibit but may regulate trade; (5) it
must be general and consistent with public policy; and (6) it must not be
unreasonable.109chanrobleslaw
In the State's exercise of police power, the property rights of individuals may be
subjected to restraints and burdens in order to fulfill the objectives of the
Government.110 A local government unit is considered to have properly exercised
its police powers only if it satisfies the following requisites, to wit: (1) the interests
of the public generally, as distinguished from those of a particular class, require
the interference of the State; and (2) the means employed are reasonably
necessary for the attainment of the object sought to be accomplished and not
unduly oppressive.111 The first requirement refers to the Equal Protection Clause
of the Constitution; the second, to the Due Process Clause of the
Constitution.112chanrobleslaw
Substantive due process requires that a valid ordinance must have a sufficient
justification for the Government's action.113 This means that in exercising police
power the local government unit must not arbitrarily, whimsically or despotically
enact the ordinance regardless of its salutary purpose. So long as the ordinance
realistically serves a legitimate public purpose, and it employs means that are
reasonably necessary to achieve that purpose without unduly oppressing the
individuals regulated, the ordinance must survive a due process
challenge.114chanrobleslaw
The respondents challenge Section 5 of Ordinance No. 0309-07 for being
unreasonable and oppressive in that it sets the effectivity of the ban at three
months after publication of the ordinance. They allege that three months will be
inadequate time to shift from aerial to truck-mounted boom spraying, and
effectively deprives them of efficient means to combat the Black Sigatoka disease.
The petitioners counter that the period is justified considering the urgency of
protecting the health of the residents.
We find for the respondents.
The impossibility of carrying out a shift to another mode of pesticide application
within three months can readily be appreciated given the vast area of the affected
plantations and the corresponding resources required therefor. To recall, even the
RTC recognized the impracticality of attaining a full-shift to other modes of
spraying within three months in view of the costly financial and civil works
required for the conversion.115 In the assailed decision, the CA appropriately
observed:
There appears to be three (3) forms of ground spraying, as distinguished from
aerial spraying, which are: 1. "Truck-mounted boom spraying;" 2. "manual or
backpack spraying." and 3. "sprinkler spraying." Petitioners-appellants claim that it
was physically impossible for them to shift to "truck-mounted boom spraying"
within three (3) months before the aerial spraying ban is actually enforced. They
cited the testimony of Dr. Maria Emilia Rita G. Fabregar, Ph.D, PBGEA Chairperson,
to the effect that since banana plantations in Davao City were configured for aerial
spraying, the same lack the road network to make "truck-mounted boom
spraying" possible. According to Dr. Fabregar, it was impossible to construct such
road networks in a span of three (3) months. Engr. Magno P. Porticos, Jr.,
confirmed that the shift demands the construction of three hundred sixty (360)
linear kilometers of road which cannot be completed in three (3) months.
In their separate testimonies, Dr. Fabregar and Engr. Porticos explained that a
shift to "truck-mounted boom spraying" requires the following steps which may be
completed in three (3) years:
1. six (6) months for planning the reconfiguration of banana plantations to ensure
effective truck-mounted boom spraying for the adequate protections of the
plantations from the Black Sigatoka fungus and other diseases, while maximizing
land use;
2. two (2) months to secure government permits for infrastructure works to be
undertaken thereon;
3. clearing banana plants and dismantling or reconstructing fixed infrastructures,
such as roads, drains, cable ways, and irrigation facilities, which phase may be
completed in eighteen (18) months;
4. importation and purchase of trucks mounted with boom spraying, nurse trucks
and protective gears. The placing of orders and delivery of these equipments,
including the training [of] the personnel who would man the same, would take six
(6) months; and cralawlawlibrary
5. securing the needed capitalization to finance these undertakings would take six
(6) months to a year.
Ms. Maria Victoria E. Sembrano, CPA, Chairperson of the PBGEA Finance
Committee, testified that her committee and the Technical Committee and
Engineering Group of PBGEA conducted a feasibility study to determine the cost in
undertaking the shift to ground spraying. Their findings fixed the estimated cost
for the purpose at Php 400 Million.
Both appellees failed to rebut the foregoing testimonies with empirical findings to
the contrary.
Thus, in view of the infrastructural requirements as methodically explained, We
are convinced that it was physically impossible for petitioners-appellants to carry
out a carefully planned configuration of vast hectares of banana plantations and be
able to actually adopt "truck-mounted boom spraying" within three (3) months. To
compel petitioners-appellants to abandon aerial spraying in favor of "manual or
backpack spraying" or "sprinkler spraying" within 3 months puts petitioners-
appellants in a vicious dilemma between protecting its investments and the health
of its workers, on the one hand, and the threat of prosecution if they refuse to
comply with the imposition. We even find the 3-months transition period
insufficient, not only in acquiring and gearing-up the plantation workers of safety
appurtenances, but more importantly in reviewing safety procedures for "manual
or backpack spraying" and in training such workers for the purpose. Additionally,
the engineering works for a sprinkler system in vast hectares of banana
plantations could not possibly be completed within such period, considering that
safety and efficiency factors need to be considered in its structural re-designing.
Respondent-appellee argues that the Ordinance merely banned an agricultural
practice and did not actually prohibit the operation of banana plantations; hence, it
is not oppressive. While We agree that the measure did not impose a closure of a
lawful enterprise, the proviso in Section 5, however, compels petitioners-
appellants to abandon aerial spraying without affording them enough time to
convert and adopt other spraying practices. This would preclude petitioners-
appellants from being able to fertilize their plantations with essential vitamins and
minerals substances, aside from applying thereon the needed fungicides or
pesticides to control, if not eliminate the threat of, plant diseases. Such an
apparent eventuality would prejudice the operation of the plantations, and the
economic repercussions thereof would just be akin to shutting down the venture.
This Court, therefore, finds Section 5 of Ordinance No. 0309-07 an invalid
provision because the compulsion thereunder to abandon aerial spraying within an
impracticable period of "three (3) months after the effectivity of this Ordinance" is
"unreasonable, oppressive and impossible to comply with."116
The required civil works for the conversion to truck-mounted boom spraying alone
will consume considerable time and financial resources given the topography and
geographical features of the plantations.117 As such, the conversion could not be
completed within the short timeframe of three months. Requiring the respondents
and other affected individuals to comply with the consequences of the ban within
the three-month period under pain of penalty like fine, imprisonment and even
cancellation of business permits would definitely be oppressive as to constitute
abuse of police power.
The respondents posit that the requirement of maintaining a buffer zone under
Section 6 of the ordinance violates due process for being confiscatory; and that
the imposition unduly deprives all agricultural landowners within Davao City of the
beneficial use of their property that amounts to taking without just compensation.
The position of the respondents is untenable.
In City of Manila v. Laguio, Jr.,118 we have thoroughly explained that taking only
becomes confiscatory if it substantially divests the owner of the beneficial use of
its property, viz.:
An ordinance which permanently restricts the use of property that it cannot be
used for any reasonable purpose goes beyond regulation and must be recognized
as a taking of the property without just compensation. It is intrusive and violative
of the private property rights of individuals.
36
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.
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.
In the landmark case of Pennsylvania Coal v. Mahon, 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.
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.
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.
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.
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. (bold
Emphasis supplied)
The establishment of the buffer zone is required for the purpose of minimizing the
effects of aerial spraying within and near the plantations. Although Section 3(e) of
the ordinance requires the planting of diversified trees within the identified buffer
zone, the requirement cannot be construed and deemed as confiscatory requiring
payment of just compensation. A landowner may only be entitled to compensation
if the taking amounts to a permanent denial of all economically beneficial or
productive uses of the land. The respondents cannot be said to be permanently
and completely deprived of their landholdings because they can still cultivate or
make other productive uses of the areas to be identified as the buffer zones.
III
Ordinance No. 0309-07 violates the Equal Protection Clause
A serious challenge being posed against Ordinance No. 0309-07 rests on its
supposed collision with the Equal Protection Clause. The respondents submit that
the ordinance transgresses this constitutional guaranty on two counts, to wit: (1)
by prohibiting aerial spraying per se, regardless of the substance or the level of
concentration of the chemicals to be applied; and (2) by imposing the 30-meter
buffer zone in all agricultural lands in Davao City regardless of the sizes of the
landholding.
The constitutional right to equal protection requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed. It requires public bodies and institutions to treat similarly
situated individuals in a similar manner. The guaranty equal protection secures
every person within the State's jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by its
improper execution through the State's duly constituted authorities. The concept
of equal justice under the law demands that the State governs impartially, and not
to draw distinctions between individuals solely on differences that are irrelevant to
the legitimate governmental objective.119chanrobleslaw
Equal treatment neither requires universal application of laws to all persons or
things without distinction,120 nor intends to prohibit legislation by limiting the
object to which it is directed or by the territory in which it is to operate.121 The
guaranty of equal protection envisions equality among equals determined
according to a valid classification.122 If the groupings are characterized by
substantial distinctions that make real differences, one class may be treated and
regulated differently from another.123 In other word, a valid classification must
be: (1) based on substantial distinctions; (2) germane to the purposes of the law;
(3) not limited to existing conditions only; and (4) equally applicable to all
members of the class.124chanrobleslaw
Based on these parameters, we find for the respondents.
The reasonability of a distinction and sufficiency of the justification given by the
Government for its conduct is gauged by using the means-end test.125 This test
requires analysis of: (1) the interests of the public that generally require its
exercise, as distinguished from those of a particular class; and (2) the means
employed that are reasonably necessary for the accomplishment of the purpose
and are not unduly oppressive upon individuals.126 To determine the propriety of
the classification, courts resort to three levels of scrutiny, viz: the rational
scrutiny, intermediate scrutiny and strict scrutiny.
The rational basis scrutiny (also known as the rational relation test or rational
basis test) demands that the classification reasonably relate to the legislative
purpose.127 The rational basis test often applies in cases involving economics or
social welfare,128 or to any other case not involving a suspect
class.129chanrobleslaw
When the classification puts a quasi-suspect class at a disadvantage, it will be
treated under intermediate or heightened review. Classifications based on gender
or illegitimacy receives intermediate scrutiny.130 To survive intermediate scrutiny,
the law must not only further an important governmental interest and be
substantially related to that interest, but the justification for the classification must
be genuine and must not depend on broad generalizations.131chanrobleslaw
The strict scrutiny review applies when a legislative classification impermissibly
interferes with the exercise of a fundamental right or operates to the peculiar class
disadvantage of a suspect class. The Government carries the burden to prove that
the classification is necessary to achieve a compelling state interest, and that it is
the least restrictive means to protect such interest.132chanrobleslaw
The petitioners advocate the rational basis test. In particular, the petitioning
residents of Davao City argue that the CA erroneously applied the strict scrutiny
approach when it declared that the ordinance violated the Equal Protection Clause
because the ban included all substances including water and vitamins. The
respondents agree with the CA, however, and add that the ordinance does not rest
on a valid distinction because it has lacked scientific basis and has ignored the
classifications of pesticides observed by the FPA.
We partly agree with both parties.
In our view, the petitioners correctly argue that the rational basis approach
appropriately applies herein. Under the rational basis test, we shall: (1) discern
the reasonable relationship between the means and the purpose of the ordinance;
and (2) examine whether the means or the prohibition against aerial spraying is
based on a substantial or reasonable distinction. A reasonable classification
includes all persons or things similarly situated with respect to the purpose of the
law.133chanrobleslaw
Applying the test, the established classification under Ordinance No. 0309-07 is to
be viewed in relation to the group of individuals similarly situated with respect to
the avowed purpose. This gives rise to two classes, namely: (1) the classification
under Ordinance No. 0309-07 (legislative classification); and (2) the classification
based on purpose (elimination of the mischief). The legislative classification found
in Section 4 of the ordinance refers to "all agricultural entities" within Davao City.
Meanwhile, the classification based on the purpose of the ordinance cannot be
easily discerned because the ordinance does not make any express or implied
reference to it. We have to search the voluminous records of this case to divine
the animus behind the action of the Sangguniang Panglungsod in prohibiting aerial
spraying as an agricultural activity. The effort has led uS to the following proposed
resolution of the Sangguniang Panglungsod,134viz.:
RESOLUTION NO. ____
Series of 2007
A RESOLUTION TO ENACT AN ORDINANCE BANNING AERIAL SPRAYING AS AN
AGRICULTURAL PRACTICE IN ALL AGRICULTURAL ENTITIES IN DAVAO CITY
WHEREAS, the City of Davao, with fertile lands and ideal climactic condition, hosts
various large farms planted with different crops;
WHEREAS, these farms, lay adjacent to other agricultural businesses and that
residential areas abuts these farm boundaries;
WHEREAS, aerial spraying as a mode of applying chemical substances such as
fungicides and pesticides is being used by investors/companies over large
agricultural plantations in Davao City;
WHEREAS, the Davao City watersheds and ground water sources, located within
and adjacent to Mount Apo may be affected by the aerial spraying of chemical
substances on the agricultural farms and plantations therein;
WHEREAS, the effects of aerial spraying are found to be detrimental to the health
of the residents of Davao City most especially the inhabitants nearby agricultural
plantations practicing aerials spraying;
WHEREAS, the unstable wind direction during the conduct of aerial spray
application of these chemical substances pose health hazards to people, animals,
other crops and ground water sources;
WHEREAS, in order to achieve sustainable development, politics must be based on
the Precautionary Principle. Environment measures must anticipate, prevent, and
attack the causes of environmental degradation. Where there are threats of
serious, irreversible damage, lack of scientific certainty should not be used as a
reason for postponing measures to prevent environmental degradation;
WHEREAS, it is the policy of the City of Davao to ensure the safety of its
inhabitants from all forms of hazards, especially if such hazards come from
development activities that are supposed to be beneficial to everybody;
WHEREAS, pesticides are by its nature poisonous, it is all the more dangerous
when dispensed aerially through aircraft because of unstable wind conditions
which in turn makes aerial spray drifting to unintended targets a commonplace.
WHEREAS, aerial spraying of pesticides is undeniably a nuisance.
WHEREAS, looking at the plight of the complainants and other stakeholders
opposed to aerial spraying, the issue of aerial spraying of pesticides is in all fours a
nuisance. Given the vastness of the reach of aerial spraying, the said form of
dispensation falls into the category of a public nuisance. Public nuisance is defined
by the New Civil Code as one which affects a community or neighborhood or any
considerable number of persons, although the extent of the annoyance, danger or
damage upon individuals may be unequal.
37
WHEREAS, the General Welfare Clause of the Local Government Code empowers
Local Government Units to enact ordinances that provide for the health and safety,
promote the comfort and convenience of the City and the inhabitants thereof.
NOW THEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, that for the
health, safety and peace of mind of all the inhabitants of Davao City, let an
ordinance be enacted banning aerial spraying as an agricultural practice in all
agricultural entities in Davao City.
The proposed resolution identified aerial spraying of pesticides as a nuisance
because of the unstable wind direction during the aerial application, which (1)
could potentially contaminate the Davao City watersheds and ground water
sources; (2) was detrimental to the health of Davao City residents, most especially
those living in the. nearby plantations; and (3) posed a hazard to animals and
other crops. Plainly, the mischief that the prohibition sought to address was the
fungicide drift resulting from the aerial application; hence, the classification based
on the intent of the proposed ordinance covered all agricultural entities conducting
aerial spraying of fungicides that caused drift.
The assailed ordinance thus becomes riddled with several distinction issues.
A brief discussion on the occurrence of the drift that the ordinance seeks to
address is necessary.
Pesticide treatment is based on the use of different methods of application and
equipment,135 the choice of which methods depend largely on the objective of
distributing the correct dose to a defined target with the minimum of wastage due
to "drift."136 The term "drift" refers to the movement of airborne spray droplets,
vapors, or dust particles away from the target area during pesticide
application.137 Inevitably, any method of application causes drift, which may
either be primary or secondary. As fittingly described by scholars:138
Primary drift is the off-site movement of spray droplets at, or very close to, the
time of application. For example, a field application using a boom in a gusty wind
situation could easily lead to a primary drift. Primary spray drift is not product
specific, and the active ingredients do not differ in their potential to drift. However,
the type of formulation, surfactant, or other adjuvant may affect spray drift
potential.
Secondary drift is associated with pesticide vapor. Pesticide vapor drift is the
movement of the gas that forms when an active ingredient evaporates from
plants, soil, or other surfaces. And while vapor drift is an important issue, it only
pertains to certain volatile products. Vapor drift and other forms of secondary drift
are product specific. Water-based sprays will volatize more quickly than oil-based
sprays. However, oil-based sprays can drift farther, especially above 95°F,
because they are lighter.
Understandably, aerial drift occurs using any method of application, be it through
airplanes, ground sprayers, airblast sprayers or irrigation systems.139 Several
factors contribute to the occurrence of drift depending on the method of
application, viz.:
AERIAL AIRBLAST GROUND CHEMIGATION
Droplet size Crop canopy Droplet size Application height Application height Droplet
size Boom height Wind speed Wind speed Wind speed Wind speed Swath
adjustment Canopy Boom length Tank mix physical properties
Source: F.M. Fishel and J.A. Ferrell, "Managing Pesticide Drift," available at
http://edis.ifas.edu/pi232. citing Pesticide Notes, MSU Extension.
The four most common pesticide treatment methods adopted in Davao City are
aerial, truck-mounted boom, truck-mounted mechanical, and manual spraying.140
However, Ordinance No. 0309-07 imposes the prohibition only against aerial
spraying.
Davao City justifies the prohibition against aerial spraying by insisting that the
occurrence of drift causes inconvenience and harm to the residents and degrades
the environment. Given this justification, does the ordinance satisfy the
requirement that the classification must rest on substantial distinction?
We answer in the negative.
The occurrence of pesticide drift is not limited to aerial spraying but results from
the conduct of any mode of pesticide application. Even manual spraying or truck-
mounted boom spraying produces drift that may bring about the same
inconvenience, discomfort and alleged health risks to the community and to the
environment.141 A ban against aerial spraying does not weed out the harm that
the ordinance seeks to achieve.142 In the process, the ordinance suffers from
being "underinclusive" because the classification does not include all individuals
tainted with the same mischief that the law seeks to eliminate.143 A classification
that is drastically underinclusive with respect to the purpose or end appears as an
irrational means to the legislative end because it poorly serves the intended
purpose of the law.144chanrobleslaw
The claim that aerial spraying produces more aerial drift cannot likewise be
sustained in view of the petitioners' failure to substantiate the same. The
respondents have refuted this claim, and have maintained that on the contrary,
manual spraying produces more drift than aerial treatment145 As such, the
decision of prohibiting only aerial spraying is tainted with arbitrariness.
Aside from its being underinclusive, the assailed ordinance also tends to be
"overinclusive" because its .impending implementation will affect groups that have
no relation to the accomplishment of the legislative purpose. Its implementation
will unnecessarily impose a burden on a wider range of individuals than those
included in the intended class based on the purpose of the law.146chanrobleslaw
It can be noted that the imposition of the ban is too broad because the ordinance
applies irrespective of the substance to be aerially applied and irrespective of the
agricultural activity to be conducted. The respondents admit that they aerially
treat their plantations not only with pesticides but also vitamins and other
substances. The imposition of the ban against aerial spraying of substances other
than fungicides and regardless of the agricultural activity being performed
becomes unreasonable inasmuch as it patently bears no relation to the purported
inconvenience, discomfort, health risk and environmental danger which the
ordinance, seeks to address. The burden now will become more onerous to various
entities including the respondents and even others with no connection whatsoever
to the intended purpose of the ordinance.
In this respect, the CA correctly observed:
Ordinance No. 0309-07 defines "aerial spraying" as the "application of substances
through the use of aircraft of any form which dispenses the substances in the air."
Inevitably, the ban imposed therein encompasses aerial application of practically
all substances, not only pesticides or fungicides but including water and all forms
of chemicals, regardless of its elements, composition, or degree of safety.
Going along with respondent-appellee's ratiocination that the prohibition in the
Ordinance refers to aerial spraying as a method of spraying pesticides or
fungicides, there appears to be a need to single out pesticides or fungicides in
imposing such a ban because there is a striking distinction between such
chemicals and other substances (including water), particularly with respect to its
safety implications to the public welfare and ecology.
We are, therefore, convinced that the total ban on aerial spraying runs afoul with
the equal protection clause because it does not classify which substances are
prohibited from being applied aerially even as reasonable distinctions should be
made in terms of the hazards, safety or beneficial effects of liquid substances to
the public health, livelihood and the environment.147
We clarify that the CA did not thereby apply the strict scrutiny approach but only
evaluated the classification established by the ordinance in relation to the purpose.
This is the essence of the rational basis approach.
The petitioners should be made aware that the rational basis scrutiny is not based
on a simple means-purpose correlation; nor does the rational basis scrutiny
automatically result in a presumption of validity of the ordinance or deference to
the wisdom of the local legislature.148 To reiterate, aside from ascertaining that
the means and purpose of the ordinance are reasonably related, the classification
should be based on a substantial distinction.
However, we do not subscribe to the respondents' position that there must be a
distinction based on the level of concentration or the classification imposed by the
FPA on pesticides. This strenuous requirement cannot be expected from a local
government unit that should only be concerned with general policies in local
administration and should not be restricted by technical concerns that are best left
to agencies vested with the appropriate special competencies. The disregard of the
pesticide classification is not an equal protection issue but is more relevant in
another aspect of delegated police power that we consider to be more appropriate
in a later discussion.
The overinclusiveness of Ordinance No. 0309-07 may also be traced to its Section
6 by virtue of its requirement for the maintenance of the 30- meter buffer zone.
This requirement applies regardless of the area of the agricultural landholding,
geographical location, topography, crops grown and other distinguishing
characteristics that ideally should bear a reasonable relation to the evil sought to
be avoided. As earlier discussed, only large banana plantations could rely on aerial
technology because of the financial capital required therefor.
The establishment and maintenance of the buffer zone will become more
burdensome to the small agricultural landholders because: (1) they have to
reserve the 30-meter belt surrounding their property; (2) that will have to be
identified through GPS; (3) the metes and bounds of the buffer zone will have to
be plotted in a survey plan for submission to the local government unit; and (4)
will be limited as to the crops that may be cultivated therein based on the
mandate that the zone shall be devoted to "diversified trees" taller than what are
being grown therein.149 The arbitrariness of Section 6 all the more becomes
evident when the land is presently devoted to the cultivation of root crops and
vegetables, and trees or plants slightly taller than the root crops and vegetables
are then to be planted. It is seriously to be doubted whether such circumstance
will prevent the occurrence of the drift to the nearby residential areas.
Section 6 also subjects to the 30-meter buffer zone requirement agricultural
entities engaging in organic farming, and' do not contribute to the occurrence of
pesticide drift. The classification indisputably becomes arbitrary and whimsical.
A substantially overinclusive or underinclusive classification tends to undercut the
governmental claim that the classification serves legitimate political ends.150
Where overinclusiveness is the problem, the vice is that the law has a greater
discriminatory or burdensome effect than necessary.151 In this light, we strike
down Section 5 and Section 6 of Ordinance No. 0309-07 for carrying an invidious
classification, and for thereby violating the Equal Protection Clause.
The discriminatory nature of the ordinance can be seen from its policy as stated in
its Section 2, to wit:
Section 2. POLICY OF THE CITY. It shall be the policy of the City of Davao to
eliminate the method of aerial spraying as an agricultural practice in all
agricultural activities by all entities within Davao City.
Evidently, the ordinance discriminates against large farmholdings that are the only
ideal venues for the investment of machineries and equipment capable of aerial
spraying. It effectively denies the affected individuals the technology aimed at
efficient and cost-effective operations and cultivation not only of banana but of
other crops as well. The prohibition against aerial spraying will seriously hamper
the operations of the banana plantations that depend on aerial technology to
arrest the spread of the Black Sigatoka disease and other menaces that threaten
their production and harvest. As earlier shown, the effect of the ban will not be
limited to Davao City in view of the significant contribution of banana export
trading to the country's economy.
The discriminatory character of the ordinance makes it oppressive and
unreasonable in light of the existence and availability of more permissible and
practical alternatives that will not overburden the respondents and those
dependent on their operations as well as those who stand to be affected by the
ordinance. In the view of Regional Director Roger C. Chio of DA Regional Field Unit
XI, the alleged harm caused by aerial spraying may be addressed by following the
GAP that the DA has been promoting among plantation operators. He explained his
view thusly:
The allegation that aerial spraying is hazardous to animal and human being
remains an allegation and assumptions until otherwise scientifically proven by
concerned authorities and agencies. This issue can be addressed by following Good
Agricultural Practices, which DA is promoting among fruit and vegetable
growers/plantations. Any method of agri-chemical application whether aerial or
non-aerial if not properly done in accordance with established procedures and code
of good agricultural practices and if the chemical applicators and or handlers lack
of necessary competency, certainly it could be hazardous. For the assurance that
commercial applicators/aerial applicators possessed the competency and
38
responsibility of handling agri-chemical, such applicators are required under Article
III, Paragraph 2 of FPA Rules and Regulation No. 1 to secure license from FPA.
Furthermore users and applicators of agri-chemicals are also guided by Section 6
Paragraph 2 and 3 under column of Pesticides and Other agricultural Chemicals of
PD 11445 which stated: "FPA shall establish and enforce tolerance levels and good
agricultural practices in raw agricultural commodities; to restrict or ban the use of
any chemical or the formulation of certain pesticides in specific areas or during
certain period upon evidence that the pesticide is eminent [sic] hazards has
caused, or is causing widespread serious damage to crops, fish, livestock or to
public health and environment."
Besides the aforecited policy, rules and regulation enforced by DA, there are other
laws and regulations protecting and preserving the environment. If the
implementation and monitoring of all these laws and regulation are closely
coordinated with concerned LGUs, Gas and NGAs and other private sectors,
perhaps we can maintain a sound and health environment x x x.152
Indeed, based on the Summary Report on the Assessment and Factfinding
Activities on the Issue of Aerial Spraying in Banana Plantations,153 submitted by
the fact-finding team organized by Davao City, only three out of the 13 barangays
consulted by the fact-finding team opposed the conduct of aerial spraying; and of
the three barangays, aerial spraying was conducted only in Barangay Subasta. In
fact, the fact-finding team found that the residents in those barangays were
generally in favor of the operations of the banana plantations, and did not oppose
the conduct of aerial spraying.
IV
The Precautionary Principle still requires scientific basis
The petitioners finally plead that the Court should look at the merits of the
ordinance based on the precautionary principle. They argue that under the
precautionary principle, the City of Davao is justified in enacting Ordinance No.
0309-07 in order to prevent harm to the environment and human health despite
the lack of scientific certainty.
The petitioners' plea and argument cannot be sustained.
The principle of precaution originated as a social planning principle in Germany. In
the 1980s, the Federal Republic of Germany used the Vorsogeprinzip ("foresight
principle") to justify the implementation of vigorous policies to tackle acid rain,
global warming and pollution of the North Sea.154 It has since emerged from a
need to protect humans and the environment from increasingly unpredictable,
uncertain, and unquantifiable but possibly catastrophic risks such as those
associated with Genetically Modified Organisms and climate change,155 among
others. The oft-cited Principle 15 of the 1992 Rio Declaration on Environment and
Development (1992 Rio Agenda), first embodied this principle, as follows:
Principle 15
In order to protect the environment, the precautionary approach shall be widely
applied by States according to their capabilities. Where there are threats of serious
or irreversible damage, lack of full scientific certainty shall not be used as a reason
for postponing cost-effective measures to prevent environmental degradation.
In this jurisdiction, the principle of precaution appearing in the Rules of Procedure
for Environmental Cases (A.M. No. 09-6-8-SC) involves matters of evidence in
cases where there is lack of full scientific certainty in establishing a causal link
between human activity and environmental effect.156 In such an event, the courts
may construe a set of facts as warranting either judicial action or inaction with the
goal of preserving and protecting the environment.157chanrobleslaw
It is notable, therefore, that the precautionary principle shall only be relevant if
there is concurrence of three elements, namely: uncertainty, threat of
environmental damage and serious or irreversible harm. In situations where the
threat is relatively certain, or that the causal link between an action and
environmental damage can be established, or the probability of occurrence can be
calculated, only preventive, not precautionary measures, may be taken. Neither
will the precautionary principle apply if there is no indication of a threat of
environmental harm; or if the threatened harm is trivial or easily
reversible.158chanrobleslaw
We cannot see the presence of all the elements. To begin with, there has been no
scientific study. Although the precautionary principle allows lack of full scientific
certainty in establishing a connection between the serious or irreversible harm and
the human activity, its application is still premised on empirical studies. Scientific
analysis is still a necessary basis for effective policy choices under the
precautionary principle.159chanrobleslaw
Precaution is a risk management principle invoked after scientific inquiry takes
place. This scientific stage is often considered synonympus with risk
assessment.160 As such, resort to the principle shall not be based on anxiety or
emotion, but from a rational decision rule, based in ethics.161 As much as
possible, a complete and objective scientific evaluation of the risk to the
environment or health should be conducted and made available to decision-makers
for them to choose the most appropriate course of action.162 Furthermore, the
positive and negative effects of an activity is also important in the application of
the principle. The potential harm resulting from certain activities should always be
judged in view of the potential benefits they offer, while the positive and negative
effects of potential precautionary measures should be
considered.163chanrobleslaw
The only study conducted to validate the effects of aerial spraying appears to be
the Summary Report on the Assessment and Fact-Finding Activities on the Issue of
Aerial Spraying in Banana Plantations.164 Yet, the fact-finding team that
generated the report was not a scientific study that could justify the resort to the
.precautionary principle. In fact, the Sangguniang Bayan ignored the findings and
conclusions of the fact-finding team that recommended only a regulation, not a
ban, against aerial spraying. The recommendation was in line with the advocacy of
judicious handling and application of chemical pesticides by the DOH-Center for
Health Development in the Davao Region in view of the scarcity of scientific
studies to support the ban against aerial spraying.165chanrobleslaw
We should not apply the precautionary approach in sustaining the ban against
aerial spraying if little or nothing is known of the exact or potential dangers that
aerial spraying may bring to the health of the residents within and near the
plantations and to the integrity and balance of the environment. It is dangerous to
quickly presume that the effects of aerial spraying would be adverse even in the
absence of evidence. Accordingly, for lack of scientific data supporting a ban on
aerial spraying, Ordinance No. 0309-07 should be struck down for being
unreasonable.
V
Ordinance No. 0309-07 is an ultra vires act
The Court further holds that in addition to its unconstitutionality for carrying an
unwarranted classification that contravenes the Equal Protection Clause, Ordinance
No. 0309-07 suffers from another legal infirmity.
The petitioners represent that Ordinance No. 0309-07 is a valid exercise of
legislative and police powers by the Sangguniang Bayan of Davao City pursuant to
Section 458 in relation to Section 16 both of the Local Government Code. The
respondents counter that Davao City thereby disregarded the regulations
implemented by the Fertilizer and Pesticide Authority (FPA), including its
identification and classification of safe pesticides and other agricultural chemicals.
We uphold the respondents.
An ordinance enjoys the presumption of validity on the basis that:
The action of the elected representatives of the people cannot be lightly set aside.
The councilors must, in the very nature of things, be familiar with the necessities
of their particular municipality and with all the facts and circumstances which
surround the subject, and necessities of their particular municipality and with all
the facts and circumstances which surround the subject, and necessitate action.
The local legislative body, by enacting the ordinance, has in effect given notice
that the regulations are essential to the well-being of the people.166
Section 5(c) of the Local Government Code accords a liberal interpretation to its
general welfare provisions. The policy of liberal construction is consistent with the
spirit of local autonomy that endows local government units with sufficient power
and discretion to accelerate their economic development and uplift the quality of
life for their constituents.
Verily, the Court has championed the cause of public welfare on several occasions.
In so doing, it has accorded liberality to the general welfare provisions of the Local
Government Code by upholding the validity of local ordinances enacted for the
common good. For instance, in Social Justice Society (SJS) v. Atienza, Jr.,167 the
Court validated a zoning ordinance that reclassified areas covered by a large oil
depot from industrial to commercial in order to ensure the life, health and property
of the inhabitants residing within the periphery of the oil depot. Another instance
is Gancayco v. City Government of Quezon City,168 where the Court declared as
valid a city ordinance ordering the construction of arcades that would ensure the
health and safety of the city and its inhabitants, improvement of their morals,
peace, good order, comfort and convenience, as well as the promotion of their
prosperity. Even in its early years, the Court already extended liberality towards
the exercise by the local government units; of their legislative powers in order to
promote the general welfare of their communities. This was exemplified in United
States v. Salaveria,169 wherein gambling was characterized as "an act beyond the
pale of good morals" that the local legislative council could validly suppress to
protect the well-being of its constituents; and in United States v. Abendan,170
whereby the right of the then Municipality of Cebu to enact an ordinance relating
to sanitation and public health was upheld.
The power to legislate under the General Welfare Clause is not meant to be an
invincible authority. In fact, Salaveria and Abendan emphasized the
reasonableness and consistency of the exercise by the local government units with
the laws or policies of the State.171 More importantly, because the police power of
the local government units flows from the express delegation of the power by
Congress, its exercise is to be construed in strictissimi juris. Any doubt or
ambiguity arising out of the terms used in granting the power should be construed
against the local legislative units.172 Judicial scrutiny comes into play whenever
the exercise of police power affects life, liberty or property.173 The presumption of
validity and the policy of liberality are not restraints on the power of judicial review
in the face of questions about whether an ordinance conforms with the
Constitution, the laws or public policy, or if it is unreasonable, oppressive, partial,
discriminating or in derogation of a common right. The ordinance must pass the
test of constitutionality and the test of consistency with the prevailing
laws.174chanrobleslaw
Although the Local Government Code vests the municipal corporations with
sufficient power to govern themselves and manage their affairs and activities, they
definitely have no right to enact ordinances dissonant with the State's laws and
policy. The Local Government Code has been fashioned to delineate the specific
parameters and limitations to guide each local government unit in exercising its
delegated powers with the view of making the local government unit a fully
functioning subdivision of the State within the constitutional and statutory
restraints.175 The Local Government Code is not intended to vest in the local
government unit the blanket authority to legislate upon any subject that it finds
proper to legislate upon in the guise of serving the common good.
The function of pesticides control, regulation and development is within the
jurisdiction of the FPA under Presidential Decree No. 1144.176 The FPA was
established in recognition of the need for a technically oriented government
entity177 that will protect the public from the risks inherent in the use of
pesticides.178 To perform its mandate, it was given under Section 6 of Presidential
Decree No. 1144 the following powers and functions with respect to pesticides and
other agricultural chemicals, viz.:
Section 6. Powers and functions. The FPA shall have jurisdiction, on over all
existing handlers of pesticides, fertilizers and other agricultural chemical inputs.
The FPA shall have the following powers and functions:
III. Pesticides and Other Agricultural Chemicals
1. To determine specific uses or manners of use for each pesticide or pesticide
formulation;
2. To establish and enforce levels and good agricultural practices for use of
pesticides in raw agricultural commodities;
3. To restrict or ban the use of any pesticide or the formulation of certain
pesticides in specific areas or during certain periods upon evidence that the
pesticide is an imminent hazard, has caused, or is causing widespread serious
damage to crops, fish or livestock, or to public health and environment;
39
5. To inspect the establishment and premises of pesticide handlers to insure that WHEREFORE, the Court DENIES the consolidated petitions for review on certiorari
industrial health and safety rules and anti-pollution regulations are followed; for their lack of merit; AFFIRMS the decision promulgated on January 9, 2009 in
C.A.-G.R. CV No. 01389-MIN. declaring Ordinance No. 0309-07
UNCONSTITUTIONAL; PERMANENTLY ENJOINS respondent City of Davao, and all
6. To enter and inspect farmers' fields to ensure that only the recommended persons or entities acting in its behalf or under its authority, from enforcing and
pesticides are used in specific crops in accordance with good agricultural practice; implementing Ordinance No. 0309-07; and ORDERS the petitioners to pay the
costs of suit.

Evidently, the FPA was responsible for ensuring the compatibility between the
usage and the application of pesticides in agricultural activities and the demands SO ORDERED.
for human health and environmental safety. This responsibility includes not only
the identification of safe and unsafe pesticides, but also the prescription of the
safe modes of application in keeping with the standard of good agricultural
practices.

On the other hand, the enumerated devolved functions to the local government
units do not include the regulation and control of pesticides and other agricultural
chemicals.179 The non-inclusion should preclude the Sangguniang Bayan of Davao
City from enacting Ordinance No. 0309-07, for otherwise it would be arrogating
unto itself the authority to prohibit the aerial application of pesticides in derogation
of the authority expressly vested in the FPA by Presidential Decree No. 1144.

In enacting Ordinance No. 0309-07 without the inherent and explicit authority to
do so, the City of Davao performed an ultra vires act. As a local government unit,
the City of Davao could act only as an agent of Congress, and its every act should
always conform to and reflect the will of its principal.180 As clarified in Batangas
CATV, Inc. v. Court of Appeals:181

[W]here the state legislature has made provision for the regulation of conduct, it
has manifested its intention that the subject matter shall be fully covered by the
statute, and that a municipality, under its general powers, cannot regulate the
same conduct. In Keller vs. State, it was held that: "Where there is no express
power in the charter of a municipality authorizing it to adopt ordinances regulating
certain matters which are specifically covered by a general statute, a municipal
ordinance, insofar as it attempts to regulate the subject which is completely
covered by a general statute of the legislature, may be rendered invalid. x x x
Where the subject is of statewide concern, and the legislature has appropriated
the field and declared the rule, its declaration is binding throughout the State." A
reason advanced for this view is that such ordinances are in excess of the powers
granted to the municipal corporation.

Since E.O. No. 205, a general law, mandates that the regulation of CATV
operations shall be exercised by the NTC, an LGU cannot enact an ordinance or
approve a resolution in violation of the said law.

It is a fundamental principle that municipal ordinances are inferior in status and

subordinate to the laws of the state. An ordinance in conflict with a state law of
general character and statewide application is universally held to be invalid. The
principle is frequently expressed in the declaration that municipal authorities,
under a general grant of power, cannot adopt ordinances which infringe the spirit
of a state law or repugnant to the general policy of the state. In every power to
pass ordinances given to a municipality, there is an implied restriction that the
ordinances shall be consistent with the general law.182 (Emphasis ours)

For sure, every local government unit only derives its legislative authority from
Congress. In no instance can the local government unit rise above its source of
authority. As such, its ordinance cannot run against or contravene existing laws,
precisely because its authority is only by virtue of the valid delegation from
Congress. As emphasized in City of Manila v. Laguio, Jr.:183

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.

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.184

Moreover, Ordinance No. 0309-07 proposes to prohibit an activity already covered

by the jurisdiction of the FPA, which has issued its own regulations under its
Memorandum Circular No. 02, Series of 2009, entitled Good Agricultural Practices
for Aerial Spraying of Fungicide in Banana Plantations.185 While Ordinance No.
0309-07 prohibits aerial spraying in banana plantations within the City of Davao,
Memorandum Circular No. 02 seeks to regulate the conduct of aerial spraying in
banana plantations186 pursuant to Section 6, Presidential Decree No. 1144, and in
conformity with the standard of Good Agricultural Practices (GAP). Memorandum
Circular No. 02 covers safety procedures,187 handling188 and post-
application,189 including the qualifications of applicators,190 storing of
fungicides,191 safety and equipment of plantation personnel,192 all of which are
incompatible with the prohibition against aerial spraying under Ordinance No.
0309-07.

Although Memorandum Circular No. 02 and Ordinance No. 0309-07 both require
the maintenance of the buffer zone, they differ as to their treatment and
maintenance of the buffer zone. Under Memorandum Circular No. 02, a 50-meter
"no-spray boundary" buffer zone should be observed by the spray pilots,193 and
the observance of the zone should be recorded in the Aerial Spray Final Report
(ASFR) as a post-application safety measure.194 On the other hand, Ordinance
No. 0309-07 requires the maintenance of the 30-meter buffer zone to be planted
with diversified trees.195chanrobleslaw

Devoid of the specific delegation to its local legislative body, the City of Davao
exceeded its delegated authority to enact Ordinance No. 0309-07. Hence,
Ordinance No. 0309-07 must be struck down also for being an ultra vires act on
the part of the Sangguniang Bayan of Davao City.

We must emphasize that our ruling herein does not seek to deprive the LGUs their
right to regulate activities within their jurisdiction. They are empowered under
Section 16 of the Local Government Code to promote the general welfare of the
people through regulatory, not prohibitive, ordinances that conform with the policy
directions of the National Government. Ordinance No. 0309-07 failed to pass this
test as it contravenes the specific regulatory policy on aerial spraying in banana
plantations on a nationwide scale of the National Government, through the FPA.

Finally, the unconstitutionality of the ban renders nugatory Ordinance No. 0309-07
in its entirety. Consequently, any discussion on the lack of the separability clause
becomes entirely irrelevant.

40
G.R. No. 220617
NESTLE PHILIPPINES, INC., Petitioner,
vs.
BENNY A. PUEDAN, JR., JAYFER D. LIMBO, BRODNEY N. AVILA, ARTHUR C. AQUINO,
RYAN A. MIRANDA, RONALD R. ALAVE, JOHNNY A. DIMAYA, MARLON B. DELOS
REYES, ANGELITO R. CORDOVA, EDGAR S. BARRUGA, CAMILO B. CORDOVA, JR.,
JEFFRY B. LANGUISAN, EDISON U. VILLAPANDO, JHEIRNEY S. REMOLIN, MARY LUZ
*
A. MACATALAD, JENALYN M. GAMUROT, DENNIS G. BAWAG, RAQUEL A. ABELLERA,
and RICANDRO G. GUATNO, JR., Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1are the Decision2 dated March 26, 2015 and the
Resolution3 dated September 17, 2015 of the Court of Appeals (CA) in CA-G.R. SP No.
132686, which affirmed the Decision4 dated May 30, 2013 and the Resolution 5 dated August
30, 2013 of the National Labor Relations Commission (NLRC) in LAC No. 02-000699-13/
NCR-03-04761-12, declaring petitioner Nestle Philippines, Inc. (NPI), jointly and severally
liable with Ocho de Septiembre, Inc. (ODSI) to respondents Benny A. Puedan, Jr., Jayfer D.
Limbo, Brodney N. Avila, Arthur C. Aquino, Ryan A. Miranda, Ronald R. Alave, Johnny A.
Dimaya, Marlon B. Delos Reyes, Angelita R. Cordova, Edgar S. Barruga, Camilo B. Cordova,
Jr., Jeffry B. Languisan, Edison U. Villapando, Jheirney S. Remolin, Mary Luz A. Macatalad,
Jenalyn M. Gamurot, Dennis G. Bawag, Raquel A. Abellera, and Ricandro G. Guatno, Jr.
(respondents) for separation pay, nominal damages, and attorney's fees.
The Facts
The instant case arose from an amended 6 complaint7 dated July 6, 2012 for illegal dismissal,
damages, and attorney's fees filed by respondents against, inter alia, ODSI and NPI.
Respondents alleged that on various dates, ODSI and NPI hired them to sell various NPI
products in the assigned covered area. After some time, respondents demanded that they be
considered regular employees of NPI, but they were directed to sign contracts of employment
with ODSI instead. When respondents refused to comply with such directives, NPI and ODSI
terminated them from their position. 8 Thus, they were constrained to file the complaint,
claiming that: (a) ODSI is a labor-only contractor and, thus, they should be deemed regular
employees of NPI; and (b) there was no just or authorized cause for their dismissal.9
For its part, ODSI averred that it is a company engaged in the business of buying, selling,
distributing, and marketing of goods and commodities of every kind and it enters into all kinds
of contracts for the acquisition thereof. ODSI admitted that on various dates, it hired
respondents as its employees and assigned them to execute the Distributorship Agreement 10 it
entered with NPI, 11 the relevant portions of which state:
3.1 DISTRIBUTOR (ODSI) shall assign a sales force in his/her regular employ, dedicated
solely to the handling of NPI Grocery Retail Products under this Agreement, and who shall
exclusively cover assigned areas/channels of distribution.
3.2 DISTRIBUTOR shall service the outlets within the Territory by reselling Products obtained
exclusively from Nestle Philippines, Inc. and not from any other source.
3.3 DISTRIBUTOR shall utilize booking and distribution salesmen to
undertake territory development. Booking done by DISTRIBUTOR shall be delivered by its
personnel. Collection of accounts shall be taken cared (sic) of by DISTRIBUTOR, without
prejudice to the provisions of Clause 13 hereof.
3.4 DISTRIBUTOR's route salesmen shall exclusively cover assigned ex-truck areas/channels
of distribution.
3.5 DISTRIBUTOR shall also provide training to its staff or personnel where necessary, to
improve operations in servicing the requirements of DISTRIBUTOR's customers. From time to
time, NESTLE shall offer to DISTRIBUTOR suggestions and recommendations to improve
sales and to further develop the market.
3.6 DISTRIBUTOR shall meet the sales, reach and distribution targets agreed upon by
NESTLE and DISTRIBUTOR. For purposes of this clause, reach targets refer to the number of
stores, dealers and/or outlets which DISTRIBUTOR should cover or service within a particular
period. Distribution targets refer to the number of stock keeping units and/or product lines
covered by this Agreement.
In the event of DISTRIBUTOR's failure to meet NESTLE's sales targets, NESTLE has the sole
discretion of assigning another distributor of the Products and/or reducing the Territory covered
by DISTRIBUTOR.
3.7 DISTRIBUTOR agrees to provide at its own cost and expense facilities and other
resources necessary for the distribution and sale of the Products.
3.8 NESTLE's sales personnel may get orders for the Products distributed by DISTRIBUTOR
and pass on the said orders to DISTRIBUTOR.
3.9 NESTLE shall provide the necessary promotional and marketing support for the Products
through promotional materials, product information literature, participation in trade fairs, and
other market development activities.
3.10 Should NESTLE manufacture and/or distribute other products not subject of this
Agreement, which, in NESTLE's opinion, should likewise be extended to DISTRIBUTOR's
outlets, such additional products shall be included among those listed in Annex "A" hereof.
NESTLE shall deliver the Products to DISTRIBUTOR's warehouse(s) at its own expenses.
Immediately upon receipt of the Products, DISTRIBUTOR shall carry out a visual inspection
thereof. In the event any quantity of the Products is found to be defective upon such visual
inspection, NESTLE shall replace such quantity of the Products at no cost to DISTRIBUTOR.
3.11 All costs for transportation and/or shipment of the Products from DISTRIBUTOR's
warehouse(s) to its outlets/customers shall be the account of the DISTRIBUTOR. 12
However, the business relationship between NPI and ODSI turned sour when the former' s
sales department badgered the latter regarding the sales targets. Eventually, NPI downsized
its marketing and promotional support from ODSI which resulted to business reverses and in
the latter's filing of a petition for corporate rehabilitation and, subsequently, the closure of its
Nestle unit due to the termination of the Distributorship Agreement and the failure of
rehabilitation. Under the foregoing circumstances, ODSI argued that respondents were not
dismissed but merely put in floating status. 13
On the other hand, NPI did not file any position paper or appear in the scheduled
conferences. 14
The Labor Arbiter Ruling
In a Decision15 dated December 28, 2012, the Labor Arbiter (LA) dismissed the complaint for
lack of merit, but nevertheless, ordered, inter alia, ODSI and NPI to pay respondents nominal
damages in the aggregate amount of ₱235,728.00 plus attorney's fees amounting to ten
percent (10%) of the total monetary awards. 16 The LA found that: (a) respondents were unable
to prove that they were NPI employees; and (b) respondents were not illegally dismissed as
ODSI had indeed closed down its operations due to business losses. 17 As to the issue on the
failure to give respondents a thirty (30)-day notice prior to such closure, the LA concluded that
all the impleaded respondents therein (i.e., including NPI) should be held liable for the
payment of nominal damages plus attorney's fees. 18 Aggrieved, respondents appealed to the
NLRC.19
The NLRC Ruling
In a Decision20 dated May 30, 2013, the NLRC reversed and set aside the LA ruling and,
accordingly, ordered ODSI and NPI to pay each of the respondents: (a) separation pay
amounting to Yi month pay for every year of service reckoned from the time they were
employed until the finality of the Decision; and (b) nominal damages in the amount of
₱30,000.00. The NLRC likewise ordered NPI and ODSI to pay respondents attorney's fees
amounting to ten percent (10%) of the monetary awards. 21
Contrary to the LA's findings, the NLRC found that while ODSI indeed shut down its
operations, it failed to prove that such closure was due to serious business losses as it did not
present evidence, e.g., financial statements, to corroborate its claims. As such, it ruled that
respondents are entitled to separation pay. In this relation, the NLRC also found that since
ODSI failed to notify respondents of such closure, the latter are likewise entitled to nominal
damages.22
Further, the NLRC found ODSI to be a labor-only contractor of NPI, considering that: (a) ODSI
had no substantial capitalization or investment; (b) respondents performed activities directly
related to NPI's principal business; and (c) the fact that respondents' employment depended
on the continuous supply of NPI products shows that ODSI had not been carrying an
23
independent business according to its own manner and method.
Consequently, the NLRC deemed NPI to be respondents' true employer, and thus, ordered it
jointly and severally liable with ODSI to pay the monetary claims of respondents. 24
Respondents moved for a partial reconsideration, 25 arguing that since it was only ODSI that
closed down operations and not NPI and, considering the finding that the latter was deemed to
be their true employer, NPI should reinstate them, or if not practicable, to pay them separation
pay equivalent to one (1) month pay for every year of service. NPI also moved for
reconsideration,26 contending that: (a) it was deprived of its right to participate in the
proceedings before the LA and the NLRC; and (b) it had no employer-employee relationship
with respondents as ODSI was never its contractor, whether independent or labor-
only.27 However, the NLRC denied both motions in a Resolution 28 dated August 30, 2013,
holding that: (a) respondents' termination was due to the closure of ODSI's Nestle unit, an
authorized cause and, thus, the monetary awards in their favor were proper; (b) NPI was not
deprived of its right to participate in the proceedings as it was duly served with copies of the
parties' respective pleadings, as well as the rulings of both the LA and the
NLRC; (c) assuming arguendo that NPI was indeed deprived of due process, its subsequent
filing of a motion for reconsideration before the NLRC cured the defect as it was able to argue
its position in the said motion; and (d) the circumstances surrounding the Distributorship
Agreement between ODSI and NPI showed that the former is indeed a labor-only contractor of
the latter. 29
Dissatisfied, NPI filed a petition for certiorari30before the CA, essentially insisting that: (a) it was
deprived of due process before the tribunals a quo; and (b) there was no employer-employee
31
relationship between NPI and respondents. Records reveal that no other party elevated the
matter before the CA.
The CA Ruling
In a Decision32 dated March 26, 2015, the CA affirmed the NLRC ruling. Anent the issue on
due process, the CA held that NPI was not deprived of its opportunity to be heard as it was
able to receive a copy of the complaint and other pleadings, albeit it failed to respond
thereto. 33 As regards the substantive issue, the CA ruled that despite ODSI and NPI's contract
being denominated as a "Distributorship Agreement," it contained provisions demonstrating a
labor-only contracting arrangement between them, as well as NPI' s exercise of control over
the business of ODSI. Moreover, the CA pointed out that: (a) there was nothing in the records
which showed that ODSI had substantial capital to undertake an independent business;
and (b) respondents performed tasks essential to NPI's business. 34 Undaunted, NPI moved for
reconsideration, 35 which was, however, denied in a Resolution36 dated September 17, 2015;
hence, this petition.
The Issues Before the Court
The essential issues for the Court's resolution are whether or not the CA correctly ruled
that: (a) NPI was accorded due process by the tribunals a quo; and (b) ODSI is a labor-only
contractor of NPI, and consequently, NPI is respondents' true employer and, thus, deemed
jointly and severally liable with ODSI for respondents' monetary claims.
The Court's Ruling
To justify the grant of the extraordinary remedy of certiorari, the petitioner must satisfactorily
show that the court or quasi-judicial authority gravely abused the discretion conferred upon it.
Grave abuse of discretion connotes a capricious and whimsical exercise of judgment, done in
a despotic manner by reason of passion or personal hostility, the character of which being so
patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform
the duty enjoined by or to act at all in contemplation of law. 37
In labor disputes, grave abuse of discretion may be ascribed to the NLRC when, inter alia, its
findings and conclusions are not supported by substantial evidence, or that amount of relevant
evidence which a reasonable mind might accept as adequate to justify a conclusion. 38
Guided by the foregoing considerations, the Court finds that the CA was correct in ruling that
the labor tribunals a quo gave NPI an opportunity to be heard. However, it erred in not
ascribing grave abuse of discretion on the NLRC's finding that ODSI is a labor-only contractor
of NPI and, thus, the latter is the respondents' true employer, and jointly and severally liable
with ODSI for respondents' monetary claims. As will be explained hereunder, such finding by
the NLRC is not supported by substantial evidence.
I.
The observance of fairness in the conduct of any investigation is at the very heart of
procedural due process. The essence of due process is to be heard, and, as applied to
administrative proceedings, this means a fair and reasonable opportunity to explain one's side,
or an opportunity to seek a reconsideration of the action or ruling complained of. Administrative
due process cannot be fully equated with due process in its strict judicial sense, for in the
former a formal or trial-type hearing is not always necessary, and technical rules of procedure
are not strictly applied.39 The Court's disquisition in Ledesma v. CA40is instructive on this
matter, to wit:
41
Due process, as a constitutional precept, does not always and in all situations require a trial-
type proceeding. Due process is satisfied when a person is notified of the charge against him
and given an opportunity to explain or defend himself. In administrative proceedings, the filing
of charges and giving reasonable opportunity for the person so charged to answer the
accusations against him constitute the minimum requirements of due process. The essence of
due process is simply to be heard, or as applied to administrative proceedings, an
opportunity to explain ones side, or an opportunity to seek a reconsideration of the
action or ruling complained of.41(Emphasis and underscoring supplied)

In this case, NPI essentially claims that it was deprived of its right to due process when it was
not notified of the proceedings before the LA and did not receive copies and issuances from
the other parties and the LA, respectively.42 However, as correctly pointed out by the CA, NPI
was furnished via courier of a copy of the amended complaint filed by the respondents against
it as shown by LBC Receipt No. 125158910840.43 It is also apparent that NPI was also
furnished with the respondents' Position Paper, Reply, and Rejoinder. 44 Verily, NPI was indeed
accorded due process, but as the LA mentioned, the former chose not to file any position
paper or appear in the scheduled conferences. 45

Assuming arguendo that NPI was somehow deprived of due process

by either of the labor tribunals, such defect was cured by: (a) NPI' s filing of its motion for
reconsideration before the NLRC; (b) the NLRC's subsequent issuance of its Resolution dated
August 30, 2013 wherein the tribunal considered all of NPI's arguments as contained in its
motion; and (c) NPI's subsequent elevation of the case to the CA. In Gonzales v. Civil Service
Commission, 46 the Court reiterated the rule that "[a]ny seeming defect in [the] observance [of
due process] is cured by the filing of a motion for reconsideration," and that "denial of due
process cannot be successfully invoked by a party who [was] afforded the opportunity to be
heard x x x."47 Similarly, in Autencio v. Mañara,48it was held that defects in procedural due
process may be cured when the party has been afforded the opportunity to appeal or to seek
reconsideration of the action or ruling complained of. 49

Evidently, the foregoing shows that NPI was not denied due process of law as it was afforded
the fair and reasonable opportunity to explain its side.

II.

In holding NPI jointly and severally liable with ODSI for the monetary awards in favor of
respondents, both the NLRC and the CA held that based on the provisions of the
Distributorship Agreement between them, ODSI is merely a labor-only contractor of NPI. 50 In
this regard, the CA opined that the following stipulations of the said Agreement evinces that
NPI had control over the business of ODSI, namely, that: (a) NPI shall offer to ODSI
suggestions and recommendations to improve sales and to further develop the market; (b) NPI
prohibits ODSI from exporting its products (the No-Export provision); (c) NPI provided standard
requirements to ODSI for the warehousing and inventory management of the sold goods;
and (d) prohibition imposed on ODSI to sell any other products that directly compete with those
of NPI.51

However, a closer examination of the Distributorship Agreement reveals that the relationship of
NPI and ODSI is not that of a principal and a contractor (regardless of whether labor-only or
independent), but that of a seller and a buyer/re-seller. As stipulated in the Distributorship
Agreement, NPI agreed to sell its products to ODSI at discounted prices, 52 which in turn will be
re-sold to identified customers, ensuring in the process the integrity and quality of the said
products based on the standards agreed upon by the parties. 53 As aptly explained by NPI, the
goods it manufactures are distributed to the market through various distributors, e.g., ODSI,
that in turn, re-sell the same to designated outlets through its own employees such as the
respondents. Therefore, the reselling activities allegedly performed by the respondents
properly pertain to ODSI, whose principal business consists of the "buying, selling, distributing,
and marketing goods and commodities of every kind" and "[entering] into all kinds of contracts
for the acquisition of such goods [and commodities]." 54

Thus, contrary to the CA's findings, the aforementioned stipulations in the Distributorship
Agreement hardly demonstrate control on the part of NPI over the means and methods by
which ODSI performs its business, nor were they intended to dictate how ODSI shall conduct
its business as a distributor. Otherwise stated, the stipulations in the Distributorship Agreement
do not operate to control or fix the methodology on how ODSI should do its business as a
distributor of NPI products, but merely provide rules of conduct or guidelines towards the
achievement of a mutually desired result 55 - which in this case is the sale of NPI products to
the end consumer. In Steelcase, Inc. v. Design International Selections, Inc., 56 the Court held
that the imposition of minimum standards concerning sales, marketing, finance and operations
are nothing more than an exercise of sound business practice to increase sales and maximize
profits, to wit:

Finally, both the CA and DISI rely heavily on the Dealer Performance Expectation required by
Steelcase of its distributors to prove that DISI was not functioning independently from
Steelcase because the same imposed certain conditions pertaining to business planning,
organizational structure, operational effectiveness and efficiency, and financial stability. It is
actually logical to expect that Steelcase, being one of the major manufacturers of office
systems furniture, would require its dealers to meet several conditions for the grant and
continuation of a distributorship agreement. The imposition of minimum standards
concerning sales, marketing, finance and operations is nothing more than an exercise
of sound business practice to increase sales and maximize profits for the benefit of
both Steelcase and its distributors. For as long as these requirements do not impinge
on a distributor's independence, then there is nothing wrong with placing reasonable
expectations on them. 57 (Emphasis and underscoring supplied)

Verily, it was only reasonable for NPI - it being a local arm of one of the largest manufacturers
of foods and grocery products worldwide - to require its distributors, such as ODSI, to meet
various conditions for the grant and continuation of a distributorship agreement for as long as
these conditions do not control the means and methods on how ODSI does its distributorship
business, as shown in this case.1âwphi1 This is to ensure the integrity and quality of the
products which will ultimately fall into the hands of the end consumer.

Thus, the foregoing circumstances show that ODSI was not a labor-only contractor of NPI;
hence, the latter cannot be deemed the true employer of respondents. As a consequence, NPI
cannot be held jointly and severally liable to ODSI's monetary obligations towards
respondents.

WHEREFORE, the petition is GRANTED. The Decision dated March 26, 2015 and the
Resolution dated September 17, 2015 of the Court of Appeals in CA-G.R. SP No. 132686 are
hereby REVERSED and SET ASIDE. Accordingly, the Decision dated May 30, 2013 and the
Resolution dated August 30, 2013 of the National Labor Relations Commission in LAC No. 02-
000699-13/ NCR-03-04761-12 are MODIFIED, DELETING petitioner Nestle Philippines, Inc.'s
solidary liability with Ocho de Septiembre, Inc. (ODSI) for the latter's monetary obligations to
respondents Benny A. Puedan, Jr., Jayfer D. Limbo, Brodney N. Avila, Arthur C. Aquino, Ryan
A. Miranda, Ronald R. Alave, Johnny A. Dimaya, Marlon B. Delos Reyes, Angelito R. Cordova,
Edgar S. Barruga, Camilo B. Cordova, Jr., Jeffry B. Languisan, Edison U. Villapando, Jheimey
S. Remolin, Mary Luz A. Macatalad, Jenalyn M. Gamurot, Dennis G. Bawag, Raquel A.
Abellera, and Ricandro G. Guatno, Jr.

SO ORDERED.

42
G.R. No. 207156
TURKS SHAWARMA COMPANY/GEM ZEÑAROSA, Petitioners,
vs.
FELICIANO Z. PAJARON and LARRY A. CARBONILLA, Respondents.
DECISION
DEL CASTILLO, J.:
The liberal interpretation of the rules applies only to justifiable causes and meritorious
circumstances.
By this Petition for Review on Certiorari, 1 petitioner Turks Shawarma Company and its owner,
petitioner Gem Zeñarosa (Zeñarosa), assail the May 8, 2013 Decision 2 of the Court of Appeals
(CA) in CA-G.R. SP No. 121956, which affirmed the Orders dated March 18, 20113 and
September 29, 20114 of the National Labor Relations Commission (NLRC) dismissing their
appeal on the ground of non-perfection for failure to post the required bond.
Factual Antecedents
Petitioners hired Feliciano Z. Pajaron (Pajaron) in May 2007 as service crew and Larry A.
Carbonilla (Carbonilla) in April 2007 as head crew. On April 15, 2010, Pajaron and Carbonilla
filed their respective Complaints5 for constructive and actual illegal dismissal, non-payment of
overtime pay, holiday pay, holiday premium, rest day premium, service incentive leave pay and
13th month pay against petitioners. Both Complaints were consolidated.
Pajaron alleged that on April 9, 2010, Zeñarosa asked him to sign a piece of paper 6 stating
that he was receiving the correct amount of wages and that he had no claims whatsoever from
petitioners. Disagreeing to the truthfulness of the statements, Pajaron refused to sign the
paper prompting Zeñarosa to fire him from work. Carbonilla, on the other hand, alleged that
sometime in June 2008, he had an altercation with his supervisor Conchita Marcillana
(Marcillana) while at work. When the incident was brought to the attention of Zeñarosa, he was
immediately dismissed from service. He was also asked by Zeñarosa to sign a piece of paper
acknowledging his debt amounting to ₱7,000.00.
Both Pajaron and Carbonilla claimed that there was no just or authorized cause for their
dismissal and that petitioners also failed to comply with the requirements of due process. As
such, they prayed for separation pay in lieu of reinstatement due to strained relations with
petitioners and backwages as well as nominal, moral and exemplary damages. Petitioners also
claimed for nonpayment of just wages, overtime pay, holiday pay, holiday premium, service
incentive leave pay and 13th month pay.
Petitioners denied having dismissed Pajaron and Carbonilla; they averred that they actually
abandoned their work. They alleged that Pajaron would habitually absent himself from work for
an unreasonable length of time without notice; and while they rehired him several times
whenever he returned, they refused to rehire him this time after he abandoned work in April
2009. As for Carbonilla, he was reprimanded and admonished several times for misbehavior
and disobedience of lawful orders and was advised that he could freely leave his work if he
could not follow instructions. Unfortunately, he left his work without any reason and without
settling his unpaid obligation in the amount of ₱78,900.00, which compelled them to file a
criminal case7 for estafa against him. In addition, criminal complaints 8 for slander were filed
against both Pajaron and Carbonilla for uttering defamatory words that allegedly compromised
Zeñarosa's reputation as a businessman. Petitioners, thus, insisted that their refusal to rehire
Pajaron and Carbonilla was for valid causes and did not amount to dismissal from
employment. Finally, petitioners claimed that Pajaron and Carbonilla failed to substantiate their
claims that they were not paid labor standards benefits.
Proceedings before the Labor Arbiter
In a Decision9 dated December 10, 2010, the Labor Arbiter found credible Pajaron and
Carbonilla's version and held them constructively and illegally dismissed by petitioners. The
Labor Arbiter found it suspicious for petitioners to file criminal cases against Pajaron and
Carbonilla only after the complaints for illegal dismissal had been filed. Pajaron and Carbonilla
were thus awarded the sum of ₱148,753.61 and ₱49,182.66, respectively, representing
backwages, separation pay in lieu of reinstatement, holiday pay, service incentive leave pay
and 13th month pay. The dispositive portion of the Labor Arbiter's Decision reads:
WHEREFORE, in light of the foregoing, judgment is hereby rendered declaring respondent
TURKS SHAWARMA COMPANY, [liable] to pay complainants as follows:
I. FELICIANO Z. P AJARON, JR.
1. Limited backwages computed from April 9, 2010 up to the date of this Decision, in the
amount of SIXTY EIGHT THOUSAND NINE HUNDRED NINETY EIGHT PESOS & 74/100
(Php68,998. 74)
2. Separation pay, in lieu of reinstatement equivalent to one month's salary for every year of
service computed from May 1, 2007 up to the date of this decision, in the amount of THIRTY
ONE THOUS[A]ND FIVE HUNDRED TWELVE PESOS (Php3 l,5l2.00);
3. Holiday pay, in the amount of TWELVE THOUSAND SIX HUNDRED EIGHTY ONE PESOS
(Php12,681.00);
4. Service incentive leave pay, in the amount of FIVE THOUSAND FOUR HUNDRED THREE
PESOS & 46/100 (Php5,403.46);
5. Thirteenth month pay, in the amount of THIRTY THOUSAND ONE HUNDRED FIFTY
EIGHT PESOS & 41/100 (Php30,158.41).
II. LARRY A CARBONILLA
1. Separation pay, in lieu of reinstatement equivalent to one month's salary' for every year of
service computed from April 1, 2007 up to the date of this decision, in the amount of FORTY
TWO THOUSAND AND SIXTEEN PESOS (Php42,016.00);
2. Holiday pay in the amount of TWO THOUSAND PESOS (Php2,000.00);
3. Service incentive leave pay, in the amount of EIGHT HUNDRED THIR1Y THREE PESOS &
33/100 (Php833.33); and
4. Thirteenth month pay, in the amount of FOUR THOUSAND THREE HUNDRED THIRTY
THREE PESOS & 33/100 (Php4,333.33).
Other claims herein sought and prayed for are hereby denied for lack of legal and factual
bases.
SO ORDERED.10
Proceedings before the National Labor Relations Commission
Due to alleged non-availability of counsel, Zeñarosa himself filed a Notice of Appeal with
Memorandum and Motion to Reduce Bond 11 with the NLRC. Along with this, Zeñarosa posted
a partial cash bond in the amount of ₱15,000.00, 12 maintaining that he cannot afford to post
the full amount of the award since he is a mere backyard micro-entrepreneur. He begged the
NLRC to reduce the bond.
The NLRC, in an Order13 dated March 18, 2011, denied the motion to reduce bond. It ruled
that financial difficulties may not be invoked as a valid ground to reduce bond; at any rate, it
was not even substantiated by proof. Moreover, the partial bond in the amount of ₱15,000.00
is not reasonable in relation to the award which totalled to ₱197,936.27. Petitioners' appeal
was thus dismissed by the NLRC for non-perfection.
On April 7, 2011, petitioners, through a new counsel, filed a Motion for Reconsideration (with
plea to give due course to the appeal) 14 averring that the outright dismissal of their appeal was
harsh and oppressive considering that they had substantially complied with the Rules through
the posting of a partial bond and their willingness to post additional bond if necessary.
Moreover, their motion to reduce bond was meritorious since payment of the full amount of the
award will greatly affect the company's operations; besides the appeal was filed by Zeñarosa
without the assistance of a counsel. Petitioners thus implored for a more liberal application of
the Rules and prayed that their appeal be given due course. Along with this motion for
reconsideration, petitioners tendered the sum of ₱207,435.53 representing the deficiency of
the appeal bond.15
In an Order16 dated September 29, 2011, the NLRC denied the Motion for Reconsideration,
reiterating that the grounds for the reduction of the appeal bond are not meritorious and that
the partial bond posted is not reasonable. The NLRC further held that the posting of the
remaining balance on April 7, 2011 or three months and eight days from receipt of the Labor
Arbiter's Decision on December 30, 2010 cannot be allowed, otherwise, it will be tantamount to
extending the period to appeal which is limited only to 10 days from receipt of the assailed
Decision.
Proceedings before the Court of Appeals
Petitioners filed a Petition for Certiorari with application for Writ of Preliminary Injunction and
Temporary Restraining Order17 with the CA. They insisted that the NLRC gravely abused its
discretion in dismissing the appeal for failure to post the required appeal bond.
On May 8, 2013, the CA rendered a Decision18 dismissing the Petition for Certiorari. It held that
the NLRC did not commit any grave abuse of discretion in dismissing petitioners' appeal for
non-perfection because petitioners failed to comply with the requisites in filing a motion to
reduce bond, namely, the presence of a meritorious ground and the posting of a reasonable
amount of bond. The CA stated that financial difficulties is not enough justification to dispense
with the mandatory posting of a bond inasmuch as there is an option of posting a surety bond
from a reputable bonding company duly accredited by the NLRC, which, unfortunately,
petitioners failed to do. The CA noted that the lack of assistance of a counsel is not an excuse
because petitioners ought to know the Rules in filing an appeal; moreover, ignorance of the
law does not excuse them from compliance therewith.
Hence, this present Petition.
Issue
Petitioners insist that the CA erred in affirming the NLRC's dismissal of their appeal for the
following reasons: first, there was substantial compliance with the Rules on perfection of
appeal; second, the surrounding facts and circumstances constitute meritorious grounds to
reduce the appeal bond; third, they exhibited willingness and good faith by posting a partial
bond during the reglementary period; and lastly, a liberal interpretation of the requirement of an
appeal bond would serve the desired objective of resolving controversies on the merits.
Petitioners claim that there is a necessity to resolve the merits of their appeal since the Labor
Arbiter's Decision declaring Pajaron and Carbonilla illegally terminated from employment was
not based on substantial evidence.
Our Ruling
The Petition has no merit.
The Court has time and again held that "[t]he right to appeal is neither a natural right nor is it a
component of due process. It is a mere statutory privilege, and may be exercised only in the
manner and in accordance with the provisions of the law." 19 "The party who seeks to avail of
the same must comply with the requirements of the rules. Failing to do so, the right to appeal is
lost."20
Article 223 of the Labor Code, which sets forth the rules on appeal from the Labor Arbiter's
monetary award, provides:
ART. 223. Appeal. --- Decisions, awards, or orders of the Labor Arbiter are final and executory
unless appealed to the Commission by any or both parties within ten (10) calendar days from
receipt of such decisions, awards, or orders. Such appeal may be entertained only on any off
the following grounds:
(a) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter;
(b) If the decision, order or award was secured through fraud or coercion, including graft and
corruption;
(c) If made purely on questions of law; and
(d) If serious errors in the finding of facts are raised which would cause grave or irreparable
damage or injury to the appellant.1âwphi1
In case of a judgment involving a monetary award, an appeal by the employer may be
perfected only upon the posting of a cash or surety bond issued by a reputable bonding
company duly accredited by the Commission in the amount equivalent to the monetary
award in the judgment appealed from.
x x x x. (Emphasis supplied)
Meanwhile, Sections 4 and 6 of Rule VI of the 2005 Revised Rules of Procedure of the NLRC,
which were in effect when petitioners filed their appeal, provide:
43
Section 4. Requisites for perfection of appeal. - (a) The Appeal shall be: 1) filed within the
reglementary period as provided in Section 1 of this Rule; 2) verified by the appellant himself in
accordance with Section 4, Rule 7 of the Rules of Court, as amended; 3) in the form of a
memorandum of appeal which shall state the grounds relied upon and the arguments in
support thereof: the relief prayed for, and with a statement of the date the appellant received
the appealed decision, resolution or order; 4) in three (3) legibly typewritten or printed copies;
and 5) accompanied by i) proof of payment of the required appeal fee; ii) posting of a cash or
surety bond as provided in Section 6 of this Rule; iii) a certificate of non-forum shopping; and
iv) proof of service upon the other parties.
b) A mere notice of appeal without complying with the other requisites aforestated shall not
stop the running of the period for perfecting an appeal.
Section 6. Bond. - - - In case the decision of the Labor Arbiter or the Regional Director involves
a monetary award, an appeal by the employer may be perfected only upon the posting of a
bond, which shall either be in the form of cash deposit or surety bond equivalent in amount to
the monetary award, exclusive of damages and attorney's fees.
rulings in both cases. In contrast, petitioners in the case at bench have no meritorious appeal
as would convince this Court to liberally apply the rule.
Stated otherwise, petitioners' case will still fail on its merits even if we are to allow their appeal
to be given due course. After scrupulously examining the contrasting positions and arguments
of the parties, we find that the Labor Arbiter's Decision declaring Pajaron and Carbonilla
illegally dismissed was supported by substantial evidence. While petitioners vehemently argue
that Pajaron and Carbonilla abandoned their work, the records are devoid of evidence to show
that there was intent on their part to forego their employment. In fact, petitioners adamantly
admitted that they refused to rehire Pajaron and Carbonilla despite persistent requests to
admit them to work. Hence, petitioners essentially admitted the fact of dismissal. However,
except for their empty and general allegations that the dismissal was for just causes,
petitioners did not proffer any evidence to support their claim of misconduct or misbehavior on
the part of Pajaron and Carbonilla. "In termination cases, the burden of proof rests on the
employer to show that the dismissal is for a just cause." 37 For lack of any clear, valid, and just
cause in terminating Pajaron and Carbonilla's employment, petitioners are indubitably guilty of
illegal dismissal.

No motion to reduce bond shall be entertained except on meritorious grounds, and upon the
posting of a bond in a reasonable amount. The mere filing of a motion to reduce bond without
complying with the requisites in the preceding paragraphs shall not stop the running of the
period to perfect an appeal.
"It is clear from both the Labor Code and the NLRC Rules of Procedure that there is legislative
and administrative intent to strictly apply the appeal bond requirement, and the Court should
give utmost regard to this intention."21 The posting of cash or surety bond is therefore
mandatory and jurisdictional; failure to comply with this requirement renders the decision of the
Labor Arbiter final and executory.22 This indispensable requisite for the perfection of an appeal
''is to assure the workers that if they finally prevail in the case[,] the monetary award will be
given to them upon the dismissal of the employer's appeal [and] is further meant to discourage
employers from using the appeal to delay or evade payment of their obligations to the
employees."23
All told, we find no error on the part of the CA in ruling that the NLRC did not gravely abused
its discretion in dismissing petitioners' appeal for non-perfection due to non-compliance with
the requisites of filing a motion to reduce bond.
[T]he merit of [petitioners'] case does not warrant the liberal application of the x x x rules x x x.
While it is true that litigation is not a game of technicalities and that rules of procedure shall not
be strictly enforced at the cost of substantial justice, it must be emphasized that procedural
rules should not likewise he belittled or dismissed simply because their non-observance might
result in prejudice to a party's substantial rights. Like all rules, they are required to be followed,
except only for the most persuasive of reasons.38
WHEREFORE, the Petition is DENIED. The May 8, 2013 Decision of the Court of Appeals in
CA-G.R. SP No. 121956 is AFFIRMED.

SO ORDERED.
However, the Court, in special and justified circumstances, has relaxed the requirement of
posting a supersedeas bond for the perfection of an appeal on technical considerations to give
way to equity and justice.24 Thus, under Section 6 of Rule VI of the 2005 NLRC Revised Rules
of Procedure, the reduction of the appeal bond is allowed, subject to the following conditions:
(1) the motion to reduce the bond shall be based on meritorious grounds; and (2) a reasonable
amount in relation to the monetary award is posted by the appellant. Compliance with these
two conditions will stop the running of the period to perfect an appeal.

In the case at bar, petitioners filed a Motion to Reduce Bond together with their Notice of
Appeal and posted a cash bond of ₱15,000.00 within the 10-day reglementary period to
appeal. The CA correctly found that the NLRC did not commit grave abuse of discretion in
denying petitioners’ motion to reduce bond as such motion was not predicated on meritorious
and reasonable grounds and the amount tendered is not reasonable in relation to the award.
The NLRC correctly held that the supposed ground cited in the motion is not well-taken for
there was no evidence to prove Zeñarosa's claim that the payment of the full amount of the
award would greatly affect his business due to financial setbacks. Besides, "the law does not
require outright payment of the total monetary award; [the appellant has the option to post
either a cash or surety bond. In the latter case, appellant must pay only a] moderate and
reasonable sum for the premium to ensure that the award will be eventually paid should the
appeal fail."25 Moreover, the absence of counsel is not a valid excuse for non-compliance with
the rules. As aptly observed by the CA, Zeñarosa cannot feign ignorance of the law
considering that he was able to post a partial bond and ask for a reduction of the appeal bond.
At any rate, petitioners did not advance any reason for the alleged absence of counsel except
that they were simply abandoned. Neither did petitioners explain why they failed to procure a
new counsel to properly assist them in filing the appeal. Moreover, the partial bond posted was
not reasonable. In the case of McBurnie v. Ganzon, 26 the Court has set a provisional
percentage of 10% of the monetary award (exclusive of damages and attorney's fees) as
reasonable amount of bond that an appellant should post pending resolution by the NLRC of a
motion for a bond's reduction. Only after the posting of this required percentage shall an
appellant's period to perfect an appeal be suspended. Applying this parameter, the ₱15,000.00
partial bond posted by petitioners is not considered reasonable in relation to the total monetary
award of ₱197,936.27.

Petitioners, nevertheless, rely on a number of cases wherein the Court allowed the relaxation
of the stringent requirement of the rule. In Nicol v. Footjoy Industrial Corporation, 27 the Court
reversed the NLRC's denial of the appellant's motion to reduce bond upon finding adequate
evidence to justify the reduction. In Rada v. National Labor Relations
Commission28and Blancaflor v. National Labor Relations Commission, 29 the NLRC allowed
the late payment of the bond because the appealed Decision of the Labor Arbiter did not state
the exact amount to be awarded, hence there could be no basis for determining the amount of
the bond to be filed. It was only after the amount of superseades bond was specified by the
NLRC that the appellants filed the bond. In YBL (Your Bus Line) v. National Labor Relations
Commission, 30 the Court was propelled to relax the requirements relating to appeal bonds as
there were valid issues raised in the appeal. In Dr. Postigo v. Philippine Tuberculosis Society,
Inc., 31the respondent therein deferred the posting of the bond and instead filed a motion to
reduce bond on the ground that the Labor Arbiter's computation of the award is erroneous
which circumstance justified the relaxation of the appeal bond requirement. In all of these
cases, though, there were meritorious grounds that warranted the reduction of the appeal
bond, which, as discussed, is lacking in the case at bench.

Petitioners, furthermore, claim that the NLRC's outright dismissal of their appeal was harsh
and oppressive since they should still be given opportunity to complete the required bond upon
the filing of their motion for reconsideration. Thus, they insist that their immediate posting of
the deficiency when they filed a motion for reconsideration constituted substantial compliance
with the Rules.

The contention is untenable.

The NLRC exercises full discretion in resolving a motion for the reduction of bond 32 in
accordance with the standards of meritorious grounds and reasonable amount. The "reduction
of the bond is not a matter of right on the part of the movant [but] lies within the sound
discretion of the NLRC x x x."33

In order to give full effect to the provisions on motion to reduce bond, the appellant must be
allowed to wait for the ruling of the NLRC on the motion even beyond the 10-day period to
perfect an appeal. If the NLRC grants the motion and rules that there is indeed meritorious
ground and that the amount of the bond posted is reasonable, then the appeal is perfected. If
the NLRC denies the motion, the appellant may still file a motion for reconsideration as
provided under Section 15, Rule VII of the Rules. If the NLRC grants the motion for
reconsideration and rules that there is indeed meritorious ground and that the amount of the
bond posted is reasonable, then the appeal is perfected. If the NLRC denies the motion, then
the decision of the Labor Arbiter becomes final and executory. 34

The rulings in Garcia v. KJ Commercial35and Mendoza v. HMS Credit Corporation36cannot

dissuade this Court from relaxing the rules. In Garcia, the NLRC initially denied the appeal of
respondent therein due to the absence of meritorious grounds in its motion to reduce bond and
unreasonable amount of partial bond posted. However, upon the posting of the full amount of
bond when respondent filed its motion for reconsideration, the NLRC granted the motion for
reconsideration on the ground of substantial compliance with the rules after considering the
merits of the appeal. Likewise, in Mendoza, the NLRC initially denied respondents' Motion to
Reduce Appeal Bond with a partial bond. Respondents thereafter promptly complied with the
NLRC's directive to post the differential amount between the judgment award and the sum
previously tendered by them. The Court held that the appeal was filed timely on account of
respondents' substantial compliance with the requirements on appeal bond. In
both Garcia and Mendoza, however, the NLRC took into consideration the substantial merits of
the appealed cases in giving due course to the appeals. It, in fact, reversed the Labor Arbiters'

44
G.R. No. 213027
ESTATE OF FERDINAND E. MARCOS, Petitioner
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
x-----------------------x
IMELDA ROMUALDEZ MARCOS and IRENE MARCOS ARANETA, Petitioners,
vs.
REPUBLIC OF THE PHILIPPINES,1 Respondent.
RESOLUTION
SERENO, CJ.:
Before us are Petitions for Review on Certiorari2assailing the Partial Summary
Judgment3 dated 13 January 2014 and the Resolution 4 dated 11 June 2014 rendered by the
Sandiganbayan, Special Division,5 in Civil Case No. 0141. In the assailed Judgment and
Resolution, the pieces of jewelry, known as the Malacañang Collection, were labeled as ill-
gotten and were consequently forfeited in favor of the Republic.
THE ANTECEDENT FACTS
Civil Case No. 0141 is a forfeiture case entitled Republic of the Philippines v. Ferdinand E.
Marcos, (represented by his Estate/Heirs) and Imelda R. Marcos. It emanated from the
Petition6 dated 17 December 1991 (1991 Petition) filed by the Republic through the
Presidential Commission on Good Government (PCGG), represented by the Office of the
Solicitor General (OSG), pursuant to Republic Act No. (R.A.) 1379 7 in relation to Executive
Order Nos. 1,8 2,9 1410 and 14-A. 11 The 1991 Petition sought the recovery of the assets and
properties pertaining to the Marcoses, who acquired them directly or indirectly through, or as a
result of, the improper or illegal use of funds or properties owned by the government. 12 The
properties, subject of other pending forfeiture cases before the Sandiganbayan, were
excluded; and the properties, subject of the 1991 Petition, were specifically listed and
accordingly clustered into 18. 13
Some of the properties listed in the 1991 Petition were already adjudged as ill-gotten wealth
and consequently forfeited in favor of the government. In Republic v. Sandiganbayan 14 (the
Swiss deposits case), the Court en banc in 2003 decreed that the deposits in various Swiss
banks, referred to in the 1991 Petition under paragraph 9 (18), 15 were ill-gotten wealth and
forfeited in favor of the State. 16 Likewise, in Marcos v. Republic17 (the Arelma case), the
Court's Second Division in 2012 declared that the funds, properties, and interests of Arelma
were also ill-gotten wealth and forfeited in favor of the State. 18
The present consolidated petitions emanated from the same Civil Case No. 0141, when the
Republic filed a Motion for Partial Summary Judgment 19 dated 24 June 2009 with respect to
another property listed in the 1991 Petition. By way of that motion, the Republic asked the
Sandiganbayan to render judgment declaring the pieces of jewelry, known as the Malacañang
Collection and specifically mentioned under paragraph 9 (6) of the 1991 Petition, as ill-gotten;
and to subsequently cause this collection of jewelry to be declared forfeited in favor of the
Republic.20 The latter categorized the pieces of jewelry recovered from the Marcoses into three
collections and singled out the Malacañang Collection as the object of the motion. 21 The
estimated values thereof were presented also in the motion as follows:
First, the so-called Hawaii Collection x x x mentioned in paragraph 9 (7) 22 of the x x x
forfeiture petition x x x seized by the United States Customs Service and x x x turned over to
the Philippine Government. Significantly, a ruling was made by the United States (U.S.) Hawaii
District Court on December 18, 1992 that the Republic of the Philippines is entitled to the
possession and control of the said collection. (Annex "A") 23 [The Sandiganbayan] had taken
judicial notice of said ruling in its Resolution24 dated October 25, 1996.
Second, the Roumeliotes Collection x x x referred to as "MIA Jewelry" x x x seized from
Roumeliotes at the Manila International Airport on March 1, 1986. Although not covered by this
forfeiture proceeding, respondents earlier sought their inclusion in then pending negotiations
for settlement.
Third, the Malacañang Collection x x x seized from Malacañang after February 25, 1986 and
transferred to the Central Bank on March 1, 1986. As ruled by this Honorable Court in the said
resolution (Annex "B"), 25 this collection is the object of this forfeiture proceeding.
This collection is itemized in ANNEX "C''26 hereof.
Based on the 1991 valuation of auction house Christie, Manson and Woods International, Inc.,
the Roumeliotes, Malacañang and Hawaii collections were worth between US$5,3 l 3,575 (low
estimate) to US$7,112,879 (high estimate), at the time of the filing of the petition. (ANNEX
"D")27 The value of the Malacañang collection by itself was US$110,055 (low estimate) to
US$153,089 (high estimate ).28 (citations supplied)
In support of the motion, the Republic cited the letter 29 dated 25 May 2009 sent to the PCGG
by Imelda Marcos, through counsel, demanding "the immediate return of all her pieces of
jewelry (i) taken by PCGG from Malacañang Palace and (ii) those turned over to PCGG by the
U.S. Government."30 The Republic argued that the letter proved the claim of the Marcoses that
they owned the Malacañang Collection, including the Hawaii Collection. 31 It further argued that
in the 1991 Petition, they were deemed to have admitted the allegations regarding the pieces
of jewelry.32 The Republic said that the words or stock phrases they used in their
Answer33 dated 18 October 1993 had been declared by this Court in the Swiss deposits case
as a "negative pregnant" and, as such, amounted to an admission if not squarely
denied.34 Finally, it contended that "the lawful income of the Marcoses during their
incumbencies as public officials was grossly disproportionate to the value of the pieces of
jewelry."35 Invoking the declaration of his Court in the Swiss deposits case, 36 the Republic
stated that their lawful income amounting to USD 304,372.43 was grossly disproportionate to
the value of the pieces of jewelry in 1991.37
On 3 July 2009, the Republic also filed a Request for Admission 38 addressed to the Estate of
Ferdinand Marcos, Imelda Marcos, Imelda Marcos-Manotoc, and Irene Marcos Araneta. It
requested the admission under oath of the truth of the following:
1.That the set of jewelry described as the "Malacañang Collection" subject of this petition and
Motion for Partial Summary Judgment dated June 24, 2009 had been acquired during the
incumbency of respondents Ferdinand E. Marcos and Imelda R. Marcos as public officials of
the Republic of the Philippines, particularly between 1966-1986.
2. That the said "Malacañang Collection'' had been acquired from abroad, particularly during
respondents' travels to Asia, Europe and the United States.
3. That the acquisition costs of the "Malacañang Collection'' more or less corresponds to the
values appraised by Christie's in 1998 as summarized in Annex F-2 of the Petition, also Annex
D of the Motion for Summary Judgment dated June 24, 2009.
4. That at the time of the recovery of the Collection in Malacañang, the pieces of jewelry were
in mint condition, and most of which has never been used by respondents. 39
The Republic also submitted a Supplement to Motion for Partial Summary Judgment 40 dated
14 July 2009. It restated that the object of the motion covered only the Malacañang Collection,
as the ownership of the two other collections had been settled by the Sandiganbayan in a
Resolution41 dated 25 October 1996.42 It also attached the Affidavit43 of J. Ermin Ernest Louie
R. Miguel, director of the legal department of the PCGG, which was the custodian of the official
records pertaining to the cases filed for the recovery of the ill-gotten wealth of the
Marcoses.44 The Affidavit sought to prove the value of the Honolulu/PCGG Collection
according to the appraisal45 by Christie's at US Customs in Honolulu, Hawaii, on 28 and 29
September 1992; of the Roumeliotes Collection according to the appraisal 46 by Christie's at the
Central Bank in Manila, Philippines, on 7 March 1988; and of the Malacañang Collection
according to the appraisal 47 by Christie's at the Central Bank in Manila, Philippines, on 7 March
1988 and to the much higher acquisition costs indicated in the Invoices 48 transmitted by
Gemsland to Imelda Marcos through Mrs. Gliceria Tantoco. 49
Imelda Marcos and Irene Marcos Araneta filed their Manifestation and Preliminary
Comments50 dated 21 July 2009. They manifested therein that Imelda Marcos had indeed
demanded the return of the jewelry to her through a letter 51 dated 25 May 2009 and that the
PCGG had been unlawfully possessing the prope1iies in view of its failure to initiate the proper
proceeding or to issue a sequestration or freeze order.52 It was further manifested that Imelda
Marcos also wrote a letter53 dated 28 May 2009 to the Department of Justice (DOJ), which had
administrative supervision and control over the PCGG, through DOJ Secretary Raul M.
Gonzalez. In turn, he sent a letter54 dated 4 June 2009 to the PCGG through Chairperson
Camilo M. Sabio ordering the latter to return the jewelry if there was no legal impediment. The
PCGG, however, referred the matter to the OSG through Solicitor General Agnes VST
Devanadera in a letter55 dated 9 June 2009. The OSG replied to the Marcoses' letter56 dated
25 May 2009 by way also of a letter 57 dated 21 July 2009. It said that according to the OSG in
its letter58 to the PCGG dated 19 June 2009, the former pointed out that the fact the jewelry
collection was the subject of an action for forfeiture before the Sandiganbayan was a legal
impediment to their return. 59
Imelda Marcos and Irene Marcos Araneta then stated that the Republic's Motion for Partial
Summary Judgment was filed to justify the possession by the PCGG of the pieces of jewelry,
60
even if these were not part of the forfeiture case - Civil Case No. 0141. They based their
allegations on the pronouncements of the Sandiganbayan in its Resolution 61 dated 25 October
62
1996 and Order dated 19 November 2001 and on the Republic's omission of the collection in
the prayer63 of the 1991 Petition. 64
The Marcoses further stated that the Request for Admission was inconsistent with the Motion
for Partial Summary Judgment and the Supplement thereto and further reserved their right to
present additional arguments or comments on the Motion and the Supplement. 65
Imelda Marcos and Irene Marcos Araneta subsequently filed a Manifestation and Motion to
Expunge66 dated 25 July 2009. They specifically stated therein that they were adopting the
same arguments raised in their Comment,67 as well as in their Motion for
Reconsideration68 dated 5 May 2009, which was filed after the Sandiganbayan
Decision69 dated 2 April 2009 granting the Motion for Partial Summary Judgment on the
Arelma account. 70
In their Manifestation and Motion to Expunge, Imelda Marcos and Irene Marcos Araneta
claimed that the filing of the Request for Admission was tantamount to an abdication of the
earlier position of the Republic that the case was ripe for summary judgment. 71 They argued
that the Request for Admission entertained a possibly genuine issue as to a material fact,
which was needed for the grant of the motion for summary judgment. 72 They further argued
that the filing of the Request for Admission was rather late, considering that it was done after
the Republic had filed its Motion for Summary Judgment in 2000 and after the case was
concluded in 2004.73 They then requested that all pleadings, motions and requests filed after
the termination of the case in 2004 be expunged. 74 Pending a resolution of the motion to
expunge, they simultaneously asked for additional time to answer the Request for Admission
and for permission to conduct an ocular inspection of the subject jewelry, which had been in
the Republic's possession for the past 22 years. 75
Meanwhile, Ferdinand Marcos Jr. filed a Manifestation 76 that he was adopting the
Manifestation and Motion to Expunge filed by Marcos and Irene Marcos Araneta. 77 The
Republic filed its Opposition78 dated 24 August 2009, in which it said that the Manifestation and
Motion to Expunge of Imelda Marcos and Irene Marcos Araneta argued on trivial matters,
raised puerile arguments, and failed to refute the contention that the collection was ill-gotten
and subject to forfeiture. 79 It further stated that the Request for Admission did not depart from
the legal basis of the Motion for Partial Summary Judgment. Instead, the request merely
sought to elicit details regarding the acquisition of the jewelry in order to expedite the
resolution of the motion.80 The Republic therefore claimed that by operation of law, the failure
of the Marcoses to respond resulted in their admission of the matters contained in the
request. 81
In response to the Marcoses' Manifestation and Preliminary Comments, the Republic likewise
filed its Reply82 dated 24 August 2009. It insisted that while the Decision dated 2 April 2009
focused on the Arelma assets, it had reservations regarding "other reliefs and remedies as
may be just and equitable under the premises." 83 These reliefs and remedies included the
prayer for the forfeiture of the Malacañang Collection as part of the ill-gotten wealth of the
Marcoses.84 Also, the Republic stated that the Request for Admission was not inconsistent with
its Motion for Partial Summary Judgment, and that the filing of the request after the motion was
not prohibited by the Rules of Court.85 It stressed that the Request for Admission was filed and
served on 3 July 2009.86 It said that instead of making an admission or a denial as a timely
response to the request within 15 days or until 18 July 2009, the Marcoses filed - and belatedly
at that - a Manifestation and Motion to Expunge on 25 July 2009. 87 Thus, the Republic insisted
that all the matters that were the subject of the request be deemed admitted by the
Marcoses.88
A Rejoinder89 dated 7 September 2009 was filed by the Marcoses who alleged that the
demand could not have meant that the collection was part of the case, because the jewelry
collection was "trivially mentioned" in the statement of facts of the 1991 petition; 90 was not
specifically prayed for;91 was not subject of the case, according to the Sandiganbayan in its
Resolution92 dated 25 October 1996 and Order 93 dated 19 November 2001.94 They also
reiterated that the Request for Admission was inconsistent with the Republic's Motion for
Partial Summary Judgment.95
In a Resolution96 dated 2 August 2010, the Sandiganbayan denied the Marcoses'
Manifestation and Preliminary Comments and Manifestation and Motion to Expunge. It ruled
that (1) the proceedings in this case had not been terminated; 97 (2) in filing their objection,
respondents were not deemed to have admitted the matters in the Request for
Admission;98 and (3) the Republic's Request for Admission was not inconsistent with the
Motion for Summary Judgment.99 The Sandiganbayan further directed the Marcoses to file and
serve within 15 days their sworn answer to the Request for Admission, 100 but they failed to
comply with the directive. 101
After the submission of the parties of their respective memoranda, 102 the Sandiganbayan
issued a Partial Summary Judgment103 dated 13 January 2014 ruling that (1) the Malacañang
Collection was part and subject of the forfeiture petition; 104 (2) the Motion for Summary
Judgment was proper; 105 and (3) the forfeiture of the Malacañang Collection was justified
pursuant to R.A. 1379. 106
Motions for Reconsideration were filed by the Estate of Marcos on 29 January 2014 107 and by
108
Imelda Marcos and Irene Marcos Araneta on 30 January 2014. The Republic submitted its
Consolidated Opposition109 dated 25 February 2014, while Replies were submitted by the
Estate of Marcos on 12 March 2014110 and by Imelda Marcos and Irene Marcos Araneta on 31
March 2014. 111 The Republic filed its Consolidated Rejoinder 112 on 23 April 2014.
45
In a Resolution113 dated 11 June 2014, the Sandiganbayan denied the Motions for
Reconsideration for being mere rehashes of the arguments of the Marcoses in their Comments
and Opposition to the Republic's Motion for Summary Judgment. 114
Imelda Marcos and Irene Marcos Araneta received the Resolution denying their Motion for
Reconsideration on 24 June 2014. 115 Within the 15-day period to file a petition, they submitted
to this Court a Manifestation with Entry of Appearance and Motion for Extension of Time,
asking that they be given until 09 August 2014 to file their petition. 116 Meanwhile, the Estate of
Marcos filed a Motion for Extension of Time on 09 July 2014 and a Manifestation on 8 August
2014, saying that its other executor in solidum was no longer filing a separate petition for
review, but was adopting that which was filed by Imelda Marcos. 117
This Court issued a Resolution 118 on 17 November 2014 in G.R. No. 213027 granting the
Motion for Extension and noting the Manifestation of the Estate of Marcos that the latter was
adopting the petition for review filed by Imelda Marcos and Irene Marcos Araneta in G.R. No.
213253. This Court also issued a Resolution 119 on 17 November 2014 in G.R. No. 213253
noting the Manifestation of Imelda Marcos and Irene Marcos Araneta's counsels, who were
seeking the grant of their Motion for an Extension. 120 This Court thereafter consolidated the
petitions. 121
THE ISSUES
The issues for this Court's resolution are as follows: (1) whether the Sandiganbayan has
jurisdiction over the properties; (2) whether the Malacañang Collection can be the subject of
the forfeiture case; (3) whether forfeiture is justified under R.A. 1379; (4) whether the
Sandiganbayan correctly ruled that the Motion for Partial Summary Judgment was not
inconsistent with the Request for Admission; and (5) whether the Sandiganbayan correctly
declared that the forfeiture was not a deprivation of petitioners' right to due process of law. 122
OUR RULING
We find no reversible error in the ruling of the Sandiganbayan.
The Sandiganbayan correctly acquired jurisdiction over the case. The properties are included
in the 1991 Petition as found in subparagraph (6) of paragraph (9), which reads:
9. However, the other properties which had been identified so far by both the PCGG and the
Solicitor General (excluding those involved in the aforesaid civil cases) are approximated at
US$5-B and which include-
xxxx
(6) Paintings and silverware sold at public auction in the United States worth $17-M as shown
by Annex "F" hereof, aside from the jewelries, paintings and other valuable decorative
arts found in Malacañang and in the United States estimated to be about $23.9-M as
listed and described in Annexes "F-1", 123 "F-2",124 "F-2-a"125 and "F-3"126 hereto
attached as integral parts hereof; 127 (Emphasis supplied)
The Sandiganbayan correctly noted the Annexes, which were mentioned in subparagraph 6
and made an integral part of the 1991 Petition, itemizing and enumerating the pieces of jewelry
with their estimated values. It ultimately found that the 1991 Petition had categorically alleged
that the Malacañang Collection was included in the assets, monies and properties sought to be
recovered.
With respect to the manner of making allegations in pleadings, the Rules of Court simply
provides as follows:
Section 1. In general. - Every pleading shall contain in a methodical and logical form, a plain,
concise and direct statement of the ultimate facts on which the party pleading relies for his
claim or defense, as the case may be, omitting the statement of mere evidentiary facts.
If a defense relied on is based on law, the pertinent provisions thereof and their applicability to
him shall be
clearly and concisely stated. 128
With respect to the determination of whether an initiatory pleading sufficiently states a cause of
action, this Court has ruled in this wise:
In determining whether an initiatory pleading states a cause of action, the test is as follows:
admitting the truth of the facts alleged, can the court render a valid judgment in accordance
with the prayer? To be taken into account are only the material allegations in the complaint;
extraneous facts and circumstances or other matters aliunde are not considered. The court
may consider -- in addition to the complaint -- the appended annexes or documents, other
pleadings of the plaintiff, or admissions in the records. 129
The 1991 Petition is compliant with the requirements stated in law and jurisprudence. The
sufficiency of its allegations is thus established with respect to the pieces of jewelry. Not only
were these listed in paragraph 9 (6) 130 of that petition as part of the properties subject to
forfeiture but these were also itemized in the documents annexed thereto: Annexes "F-
1," 131 "F-2,"132 "F-2-a," 133 and "F-3." 134 The 1991 Petition is more than enough fulfillment of
the requirement provided under Section 3 135(d) of R.A. 1379.
Meanwhile, the Sandiganbayan correctly held that the forfeiture was justified and that the
Malacañang Collection was subject to forfeiture. The legitimate income of the Marcoses had
been pegged at USD 304,372.43. 136 We reiterate what we have already stated initially
in Republic v. Sandiganbayan, 137 and subsequently in Marcos v. Republic: 138 that "whenever
any public officer or employee has acquired during his incumbency an amount of property
which is manifestly out of proportion to his salary as such public officer or employee and to his
other lawful income and the income from legitimately acquired property, said property shall be
presumed prima facie to have been unlawfully acquired." 139 Petitioners failed to satisfactorily
show that the properties were lawfully acquired; hence, the prima facie presumption that they
were unlawfully acquired prevails.
The Sandiganbayan also properly ruled that there was no inconsistency or incongruity
between Republic's Request for Admission and Motion for Partial Summary Judgment. Indeed,
we have held that a request for admission can be the basis for the grant of summary judgment.
The request can be the basis therefor when its subject is deemed to have been admitted by
the party and is requested as a result of that party's failure to respond to the court's directive to
state what specifically happened in the case. 140 The resort to such a request as a mode of
discovery rendered all the matters contained therein as matters that have been deemed
admitted pursuant to Rule 26, Section 2 of the 1997 Rules of Civil Procedure. 141
On the basis of respondent Imelda Marcos' s letter dated 25 May 2009; respondents' Answer
to the 1991 Petition, which was considered to be a "negative pregnant" in Republic v.
Sandiganbayan; and respondents' failure to timely respond to petitioner's Request for
Admission, the Sandiganbayan thus correctly granted the Motion for Summary Judgment of
the Republic.
A careful scrutiny of the three bases used by the Sandiganbayan in justifying the absence of a
genuine issue and eventually granting the Motion for Partial Summary Judgment leads us to
no other course of action but to affirm the ruling of the Sandiganbayan. The prima
facie presumption on unlawfully acquired property indeed finds application on the first basis.
Section 2 of R.A. 13 79 provides that "[w]henever any public officer or employee has acquired
during his incumbency an amount of property which is manifestly out of proportion to his salary
as such public officer or employee and to his other lawful income and the income from
legitimately acquired property, said property shall be presumed primafacie to have been
unlawfully acquired." And in this regard, the Sandiganbayan had taken judicial notice of the
legitimate income of the Marcoses during their incumbency as public officers for the period
1966-1986 which was pegged at USD 304,372.43. 142
With respect to the second basis - the Answer to the 1991 Petition - the denial of the Marcoses
cannot be considered a specific denial because similar to their denial in the Arelma case, in
which insisted that they were not privy to the transactions, the Marcoses gave "the same stock
answer to the effect that [they] did not engage in any illegal activities, and that all their
properties were lawfully acquired." 143 That they were not privy to the actual data in the
possession of the PCGG and the Solicitor General is simply a line of defense which
necessarily results in their failure to allege the lawfulness of the mode of acquiring the
property. subject of forfeiture, considering the amount of their lawful income. 144 As in the
Arelma case, the Marcoses are deemed to have admitted that the Malacanang Collection
itemized in the annexes were found in the palace and subsequently proven to have been
owned by Mrs. Marcos as she admitted in her letter dated 25 May 2009.
In light of the third basis, the factual antecedents of the case bear restating. The Republic filed
a Motion for Partial Summary Judgment dated 24 June 2009, after which it filed and served a
Request for Admission on 3 July 2009. Afterwards, it submitted a Supplement to Motion for
Partial Summary Judgment dated 14 July 2009. On 28 July 2009, the Marcoses filed their
Manifestation and Preliminary Comments. The Sandiganbayan noted the objection they had
raised in their Manifestation and Preliminary Comments. 145 In that manner, rather than
declaring that the matters raised in the Request for Admission were deemed admitted, the
Sandiganbayan instead ruled on the objection raised by the Marcoses. In short, it ruled that the
Request for Admission was not inconsistent with the motion for summary judgment. 146 The
Sandiganbayan reasoned that there was no inconsistency between the two. It said that a
request for admission may even complement a summary judgment in that the request for
admission may be used as basis for filing a motion for summary judgment. 147 It then denied
the Manifestation and Preliminary Comments and Manifestation and Motion to Expunge filed
by the Marcoses relative to the Republic's Request for Admission. Thereafter, it required the
Marcoses to file and serve their sworn answer to the Request for Admission. 148 The Marcoses
filed numerous pleadings, but none of these was made in response to the Request for
Admission as required by Rule 26, Section 2 149 of the Rules of Court until the Sandiganbayan
eventually issued the Partial Summary Judgment dated 13 January 2014 and the Resolution
dated 11June2014.
The Sandiganbayan ruled that "a request for admission may even complement a summary
judgment in that the request for admission may be used as basis for filing a summary
judgment" 150 citing three cases as follows: Concrete Aggregates Corp. v. CA, 151 Diman v.
Alumbres, 152 and Allied Agri-Business v. CA. 153 The first case instructs that a request for
admission "should set forth relevant evidentiary matters of fact, or documents described in and
exhibited with the request, whose purpose is to establish said party's cause of action or
defense." 154
The second case, on the other hand, teaches the nature of modes of discovery in this wise:
Particularly as regards request for admission under Rule 26 of the Rules of Court, the law
ordains that when a party is served with a written request that he admit : (1) the genuineness
of any material and relevant document described in and exhibited with the request, or (2) the
truth of any material and relevant matter of fact set forth in the request, said party is bound
within the period designated in the request, to file and serve on the party requesting the
admission a sworn statement either (10 denying specifically the matters of which an admission
is requested or (2) setting forth in details the reasons why he cannot truthfully either admit or
deny those matters. If the party served does not respond with such sworn statement, each of
the matters of whichan admission is requested shall be deemed admitted.
In this case, the Dimans' request for admission was duly served by registered mail on Jose
Lacalle on February 6, 1995, and a copy thereof on his lawyers on February 4, 1995. Neither
made any response whatever within the reglementary period. Nor did either of them do so
even after receiving copy of the Dimans' "MANIFESTATION WITH MOTION TO REQUIRE
PLAINTIFFS TO ANSWER REQUEST FOR ADMISSION." dated March 28, 1995. On account
thereof, in legal contemplation, the Heirs impliedly admitted all the facts listed in the request for
admission.
On the other hand, in the case of a summary judgment, issues apparently exist -- i.e., facts are
asse1ied in the complaint regarding which there is as yet no admission, disavowal or
qualification; or specific denials or affirmative defenses are in truth set out in the answer --
but the issues thus arising from the pleadings are sham, fictitious, not genuine, as shown by
admissions, depositions or admissions.155 (Italics supplied)
The third case demonstrates how failure to answer the request for admission within the period
resulted in the admission of the matters stated therein. The Court, in that case, specifically
ruled:
The burden of affirmative action is on the party upon whom notice is served to avoid the
admission rather than upon the party seeking the admission. Hence, when petitioner failed to
reply to a request to admit, it may not argue that the adverse party has the burden of proving
the facts sought to be admitted. Petitioners silence is an admission of the facts stated in the
request.
This Court finds that the motion for summary judgment filed by respondent CHERRY VALLEY
on the ground that there were no questions of fact in issue since the material allegations of the
complaint were not disputed was correctly granted by the trial court. It is a settled rule that
summary judgment may be granted if the facts which stand admitted by reason of a partys
failure to deny statements contained in a request for admission show that no material issue of
fact exists. By its failure to answer the other partys request for admission, petitioner has
admitted all the material facts necessary for judgment against itself. 156
Petitioners claim that there has been a lack of observance of due process; 157 that "there has
been no trial or hearing"; 158 and that "petitioners were shamefully never given an opportunity
to show that the questioned properties may have been lawfully acquired through other
means." 159 We find the invocation of lack of observance of due process at this stage of the
proceedings rather belated, especially when it was never invoked before the Sandiganbayan.
Needless to say, the various pleadings petitioners have filed in this case and in other cases
involving the Marcos properties were countless occasions when they could have proven that
the Malacañang Collection had indeed been lawfully acquired as claimed. They allege that
they were denied due process by not being given any opportunity to prove their lawful
acquisition of the Malacañang Collection. This allegation cannot be given credence for being
utterly baseless.
The complete records of Civil Case No. 0141 - a total of 35 volumes along with 2 envelopes
containing exhibits and 1 envelope containing the transcripts of stenographic notes - have
been forwarded to this Court by the Sandiganbayan. Pertinent parts of these documents
annexed to the 1991 Petition, along with the other pleadings filed before the Sandiganbayan
relative to the present petitions, have also been extensively quoted and reproduced verbatim in
this resolution. The purpose is not only to provide a clearer statement of the factual
antecedents, but also to confirm the veracity of the reference to these documents and to
equally dispel any doubt regarding them.
46
All in all, in the absence of any compelling legal reason, there is no basis to overturn, or carve
an exception to, existing jurisprudence on the matters raised in the present case.

WHEREFORE, premises considered, the assailed Partial Summary Judgment dated 13

January 2014 and Resolution dated 11 June 2014 rendered by the Sandiganbayan in Civil
Case No. 0141 are AFFIRMED.

SO ORDERED.

47
 G.R. No. 208424, February 14, 2018
ARMANDO LAGON, Petitioner, v. HON. DENNIS A. VELASCO, IN HIS
CAPACITY AS PRESIDING JUDGE OF MUNICIPAL TRIAL COURT IN CITIES
OF KORONADAL, SOUTH COTABATO, AND GABRIEL DIZON, Respondents.
DECISION
REYES, JR., J.:
This treats of the Petition for Certiorari1 under Rule 65 of the Revised Rules of
Court seeking the annulment of the Order2 dated June 6, 2013, issued by public
respondent Hon. Dennis A. Velasco (Judge Velasco), directing petitioner Armando
Lagon (Lagon) to file the judicial affidavits of his witnesses within five (5) days
prior to the commencement of the trial dates.
The Antecedent Facts
Sometime in December 2000, Lagon obtained a cash loan from private respondent
Gabriel Dizon (Dizon), in the amount of Three Hundred Thousand Pesos (Php
300,000.00). In payment thereof, Lagon issued PCIBank Check No. 0064914,
postdated January 12, 2001, in an equal amount. However, when Dizon presented
the check for payment, it was dishonored for being Drawn Against Insufficient
Funds.3
Consequently, Dizon sent a Letter dated May 6, 2011 to Lagon, demanding the
payment Php 300,000.00. However, Lagon refused to pay. 4
On June 6, 2011, Dizon field a Complaint for Sum of Money, Damages and
Attorney's Fees against Lagon.5
On October 8, 2011, Lagon filed a Motion to Dismiss on the ground of prescription.
In response, Dizon filed an Opposition with Motion to Amend Complaint. 6 In his
Amended Complaint, Dizon averred that he sent two demand letters, one dated
March 23, 2010 and another dated May 6, 2011. Both letters were sent through
JRS Express.7
On February 29, 2012, Lagon filed his Answer asserting that he has paid the loan. 8
Meanwhile, during the preliminary conference, the parties were directed to file
their respective pre-trial briefs within five (5) days from receipt of the trial court's
order.
Thereafter, on August 9, 2012, Judge Velasco issued a Pre-Trial Conference
Order.9
At the initial trial on June 6, 2013, neither of the parties submitted their judicial
affidavits or those of their witnesses. Hence, Judge Velasco issued the assailed
Order10 requiring the parties to submit their respective judicial affidavits five (5)
days before the trial.11 The essential portion of the Order dated June 6, 2013,
reads:
In the interest of justice and equity, the plaintiff is hereby allowed to submit his
Judicial Affidavits. But for failure of the plaintiff to submit Judicial Affidavits in due
time, the Court imposed a fine of Three Thousand pesos (Php 3,000.00) and to be
reimbursed an amount of Five Thousand pesos (Php 5,000.00) to the defendant's
expenses in coming to Court within five (5) days from today.
The parties are hereby directed to submit Judicial Affidavits of their witnesses
within five (5) days prior to the trial dates. Otherwise, the Court will no longer
admit the same.12
Lagon received a copy of the same Order on June 26, 2013. 13
On June 27, 2013, Lagon filed a Motion for Partial Reconsideration. 14 In his Motion,
Lagon requested that he be allowed to submit the judicial affidavit of his witnesses
after the plaintiff shall have adduced his evidence. Lagon claimed that Section 2 of
the Judicial Affidavit Rule, which mandates the submission by both parties of their
judicial affidavits before the pre-trial conference is violative of his right to due
process, hence unconstitutional.15
On July 10, 2013, Judge Velasco issued the assailed Order 16 denying Lagon's
Motion for Partial Reconsideration.17 Judge Velasco opined that "the requirement of
the submission of judicial affidavits of witnesses, not later than 5 days before the
pre-trial or preliminary conference or the scheduled hearing, under Section 2 of
the Judicial Affidavit Rule is not violative of Lagon's right to due process. 18
Dissatisfied with the ruling, Lagon sought direct recourse to this Court by filing the
instant Petition for Certiorari19 under Rule 65 of the Revised Rules of Court.
The Issue
The lone issue for this Court's resolution is whether or not Section 2 of the Judicial
Affidavit Rule, which requires a defendant to adduce his testimony and that of his
witnesses by judicial affidavits, and submit his documentary evidence before the
pre-trial or preliminary conference, offends his right to due process of law.
In this regard, Lagon asserts that Judge Velasco committed grave abuse of
discretion, amounting to lack or excess of jurisdiction, by compelling him (Lagon)
to submit his evidence by judicial affidavits, even before the plaintiff could have
adduced his own evidence and rested his case. According to Lagon, under the
Judicial Affidavit Rule, the defendant is forced to adduce evidence simultaneously
with the plaintiff. This conflicts with the rule on Demurrer to Evidence, which
grants a defendant the right to opt out of presenting evidence, and instead move
for the dismissal of the complaint upon the failure of the plaintiff to show a right to
relief. The defendant is thus stripped of his "due process right not to be compelled
to adduce evidence."20 Moreover, Lagon contends that the Judicial Affidavit Rule
violates the order of trial provided under the Rules of Civil
Procedure.21 Additionally, it denies litigants of their right to present adverse,
hostile or unwilling witnesses, or to secure the testimonies of witnesses by
deposition upon oral examination or written interrogatories, because the party
cannot secure their judicial affidavits.22
On the other hand, Dizon counters that no grave abuse of discretion may be
ascribed against Judge Velasco for merely enforcing the rules promulgated by this
Court. Dizon maintains that the Judicial Affidavit Rule was promoted precisely to
address the problem of case congestion and delays created by the voluminous
cases filed every year and the slow and cumbersome court proceedings. Likewise,
Dizon avers that contrary to Lagon's claim, the Judicial Affidavit Rule actually
preserves and respects litigants' procedural rights. Due process of law
contemplates notice to the party, and an opportunity to be heard before judgment
is rendered.23 Lagon was accorded notice and an opportunity to be heard when
Judge Velasco ordered the submission of judicial affidavits prior to the pre-trial
conference. It was Lagon, who blatantly refused to comply with the order. 24 Dizon
points out that the Judicial Affidavit Rule does not in any way prevent Lagon from
filing a demurrer to evidence if he feels that the same is truly warranted.25
Ruling of the Court
The instant petition is bereft of merit.
It must be noted at the outset that a petition for certiorari under Rule 65 of the
Revised Rules of Court is a pleading limited to the correction of errors of
jurisdiction or grave abuse of discretion amounting to lack or excess of
jurisdiction.26 "Its principal office is to keep the inferior court within the
parameters of its jurisdiction or to prevent it from committing such a grave abuse
of discretion amounting to lack or excess of jurisdiction." 27
It is well-settled that a petition for certiorari against a court which has jurisdiction
over a case will prosper only if grave abuse of discretion is manifested. The burden
is on the part of the petitioner to prove not merely reversible error, but grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the
public respondent issuing the impugned order. Mere abuse of discretion is not
enough; it must be grave. The term grave abuse of discretion pertains to a
capricious and whimsical exercise of judgment so patent and gross as to amount
to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by
law, as where the power is exercised in an arbitrary and despotic manner because
of passion or hostility.28
In the case at bar, Lagon accuses Judge Velasco of having committed grave abuse
of discretion amounting to lack or excess of jurisdiction in issuing the assailed
order,29 requiring him (Lagon) to submit his Judicial Affidavits before the
commencement of the trial of the case.
The Court is not convinced.
In issuing the assailed order, Judge Velasco was actually enforcing the Judicial
Affidavit Rule, promulgated by the Court. Therefore, by no stretch of the
imagination may Judge Velasco's faithful observance of the rules of procedure, be
regarded as a capricious, whimsical or arbitrary act.
Essentially, Article VIII, Section 5(5) of the 1987 Constitution bestows upon the
Court the power to "promulgate rules concerning the protection and enforcement
of constitutional rights, pleading, practice, and procedure in all courts x x x."
Seeking to eradicate the scourge of long-drawn protracted litigations, and address
case congestion and delays in court,30 on September 4, 2012, the Court en
banc promulgated A.M. No. 12-8-8-SC, or the Judicial Affidavit Rule.
The Judicial Affidavit Rule was particularly created to solve the following ills
brought about by protracted litigations, such as, the dismissal of criminal cases
due to the frustration of complainants in shuttling back and forth to court after
repeated postponements; and the dearth of foreign businessmen making long-
term investments in the Philippines because the courts are unable to provide
ample and speedy protection to their investments, thereby keeping the people
poor.31 At first, the Court approved the piloting by trial courts in Quezon City of
the compulsory use of judicial affidavits in place of the direct testimonies of
witnesses.32 Eventually, the success of the judicial affidavit rule was
unprecedented, and its implementation led to a reduction of about two-thirds of
the time used for presenting the testimonies of witnesses. Indeed, the use of
judicial affidavits greatly hastened the hearing and adjudication of cases. 33
Accordingly, the Court en banc directed the application of the Judicial Affidavit
Rule to all actions, proceedings, and incidents requiring the reception of
evidence34 before the following tribunals, such as,
(i) the Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal
Trial Courts, the Municipal Circuit Trial Courts, and the Shari'a Circuit Courts but
shall not apply to small claims cases under A.M. 08-8-7-SC; (ii) The Regional Trial
Courts and the Shari'a District Courts; (iii) The Sandiganbayan, the Court of Tax
Appeals, the Court of Appeals, and the Shari'a Appellate Courts; (iv) The
investigating officers and bodies authorized by the Supreme Court to receive
evidence, including the Integrated Bar of the Philippine (IBP); and (v) The special
courts and quasi-judicial bodies, whose rules of procedure are subject to
disapproval of the Supreme Court, insofar as their existing rules of procedure
contravene the provisions of this Rule.35
Thus, in all proceedings before the aforementioned tribunals, the parties are
required to file the Judicial Affidavits of their witnesses, in lieu of their direct
testimonies. Specifically, Section 2 of the Judicial Affidavit Rule ordains that:
Section 2. Submission of Judicial Affidavits and Exhibits in lieu of direct
testimonies. - (a) The parties shall file with the court and serve on the adverse
party, personally or by licensed courier service, not later than five days before
pre-trial or preliminary conference or the scheduled hearing with respect to
motions and incidents, the following:
The judicial affidavits of their witnesses, which shall take the place of such
witnesses' direct testimonies; and
The parties' documentary or object evidence, if any, which shall be attached to the
judicial affidavits and marked as Exhibits A, B, C, and so on in the case of the
complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the
respondent or the defendant.
(b) Should a party or a witness desire to keep the original document or object
evidence in his possession, he may, after the same has been identified, marked as
exhibit, and authenticated, warrant in his judicial affidavit that the copy or
reproduction attached to such affidavit is a faithful copy or reproduction of that
original. In addition, the party or witness shall bring the original document or
object evidence for comparison during the preliminary conference with the
48
attached copy, reproduction, or pictures, failing which the latter shall not be
admitted.

This is without prejudice to the introduction of secondary evidence in place of the

original when allowed by existing rules.

Incidentally, the failure to comply with Section 2 of the Judicial Affidavit Rule shall
result to a waiver of the submission of the required judicial affidavits and exhibits.
However, the court may, upon valid cause shown, allow the late submission of the
judicial affidavit, subject to specific penalties, constituting a fine of not less than
One Thousand Pesos (Php 1,000.00), nor more than Five Thousand Pesos (Php
5,000.00), at the discretion of the court.36

Despite the noble purpose of the Judicial Affidavit Rule, Lagon comes to this Court
bewailing the same procedural regulation as violative of his right to due process of
law, in that it "forces" him to present evidence even before the plaintiff has rested
his case, apparently in violation of the rule on demurrer to evidence.

Juxtaposing the Judicial Affidavit Rule with that of the rule on demurrer to
evidence, it becomes all too apparent that there exists no conflict between them.
Similar to the judicial affidavit, a demurrer to evidence likewise abbreviates
judicial proceedings, and serves as an instrument for the expeditious termination
of an action.37 It is as "an objection or exception by one of the parties in an action
at law, to the effect that the evidence which his adversary produced is insufficient
in point of law (whether true or not) to make out his case or sustain the
issue."38 All that it grants is an option to a defendant, to seek the dismissal of the
case, should he believe that the plaintiff failed to establish his right to relief. The
demurrer challenges the sufficiency of the plaintiffs evidence to sustain a
verdict.39 Thus, in passing upon the sufficiency of the evidence raised in a
demurrer, the court is merely required to ascertain whether there is competent or
sufficient proof to sustain the plaintiff's complaint.

Clearly, both the Judicial Affidavit Rule and Demurrer to Evidence can co-exist
harmoniously as tools for a more efficient and speedy administration of trial
procedures. On the one hand, the Judicial Affidavit Rule simply dispenses with the
direct testimony, thereby reducing the time at which a case stands for trial, in the
same way that the Demurrer to Evidence abbreviates proceedings by allowing the
defendant to seek for an early resolution of the case should the plaintiff be unable
to sufficiently prove his complaint. These rules do not conflict, and when used
hand in hand will lead to an efficient administration of the trial.

Moreover, by no stretch of the imagination may it be concluded that Lagon was

deprived of due process of law. There is nothing in the provisions of the Judicial
Affidavit Rule, which prohibits a defendant from filing a demurrer to evidence, if he
truly believes that the evidence adduced by the plaintiff is insufficient. Besides, in
the resolution of the demurrer to evidence, only the evidence presented by the
plaintiff shall be considered and weighed by the Court.

Furthermore, the fact that the defendant is mandated to submit his judicial
affidavit prior to the trial and before the plaintiff has rested his case is not a
cumbersome requirement or a circumvention of due process. On the contrary, this
Is necessary for the orderly administration of the proceeding before the courts. It
must be remembered that in as early as the pre-trial conference, the defendant is
already required to submit a pre-trial brief, where he is then tasked to state the
number and names of his witnesses, as well as the substance of their testimonies;
the issues to be tried and resolved; and the documents or exhibits to be presented
and the purpose thereof.40 Thus, the defendant is already required in this early
stage of the proceedings to formulate his defense and plan his strategy to counter
the plaintiffs complaint. There is nothing too tedious or burdensome in requiring
the submission of the judicial affidavit. In fact, this would even help the defendant
in preparing his opposing arguments against the plaintiff.

All told, the Court has always emphasized that "procedural rules should be treated
with utmost respect and due regard, since they are designed to facilitate the
adjudication of cases to remedy the worsening problem of delay in the resolution
of rival claims and in the administration of justice." 41 It cannot be overemphasized
that when the rules are clear, magistrates are mandated to apply them. Judge
Velasco honored this principle by issuing the assailed order requiring the
submission of judicial affidavits before the commencement of the trial of the case.
Accordingly, he cannot be deemed to have acted with grave abuse of discretion
amounting to lack or excess of jurisdiction by strictly enforcing the Court's rules.
Perforce, the Petition for Certiorari must be dismissed.

WHEREFORE, premises considered, the instant Petition for Certiorari is DENIED

for lack of merit. The Order dated June 6, 2013 in Civil Case No. 2293, issued by
Hon. Dennis A. Velasco, Presiding Judge, Municipal Trial Court in Cities, Koronadal
City, is AFFIRMED.

SO ORDERED.

49
G.R. No. 237428
REPUBLIC of the PHILIPPINES, represented by SOLICITOR GENERAL JOSE C.
CALIDA, Petitioner
vs.
MARIA LOURDES P.A. SERENO, Respondent
RESOLUTION
TIJAM, J.:
This resolution treats of the following motions:
1. Maria Lourdes P. A. Sereno’s (respondent) Ad Cautelam Motion for Reconsideration of this
Court's Decision 1 dated May 11, 2018, the dispositive portion of which states:
WHEREFORE, the Petition for Quo Warranto is GRANTED. Respondent Maria Lourdes P. A.
Sereno is found DISQUALIFIED from and is here y adjudged GUILTY
of UNLAWFULLY HOLDING and EXERCISING the OFFICE OF THE CHIEF JUSTICE.
Accordingly, Respondent Maria Lourdes P.A. Sereno is OUSTED and EXCLUDED therefrom.
The position of the Chief Justice of the Supreme Court is declared vacant and the Judicial and
Bar Council is directed to commence the application and nomination process.
This Decision is immediately executory without need of further action from the Court.
Respondent Maria Lourdes P.A. Sereno is ordered to SHOW CAUSE within ten (10) days from
receipt hereof why she should not be sanctioned for violating the Code of Professional
Responsibility and the Code of Judicial Conduct for transgressing the subjudice rule and for
casting aspersions and ill motives to the Members of the Supreme Court.
SO ORDERED.2
2. Respondent’s Ad Cautelam Motion for Extension of Time to File Reply (to the Show Cause
Order dated 11 May 2018).
We first dispose of respondent's Motion for Reconsideration.
Respondent claims denial of due process because her case was allegedly not heard by an
impartial tribunal. She reiterates that the six (6) Justices ought to have inhibited themselves on
the grounds of actual bias, of having personal knowledge of disputed evidentiary facts, and of
having acted as a material witness in the matter in controversy. Respondent also argues denial
of due process when the Court supposedly took notice of extraneous matters as corroborative
evidence and when the Court based its main Decision on facts without observing the
mandatory procedure for reception of evidence.
She reiterates her arguments that the Court is without jurisdiction to oust an impeachable
officer through quo warranto; that the official acts of the Judicial and Bar Council (JBC) and the
President involves political questions that cannot be annulled absent any allegation of grave
abuse of discretion; that the petition for quo warranto is time-barred; and that respondent was
and is a person of proven integrity.
By way of Comment, the Republic of the Philippines (Republic), through the Office of the
Solicitor General (OSG), seeks a denial of respondent's motion for reconsideration for
being proforma. In any case, the OSG argues that respondent's motion lacks merit as there
was no denial of due process and that quo warranto is the appropriate remedy to oust an
ineligible impeachable officer. The OSG adds that the issue of whether respondent is a person
of proven integrity is justiciable considering that the decision-making powers of the JBC are
limited by judicially discoverable standards. Undeviating from its position, the OSG maintains
that the petition is not time-barred as Section 11, Rule 66 of the Rules of Court does not apply
to the State and that the peculiar circumstances of the instant case preclude the strict
application of the prescriptive period.
Disputing respondent's claims, the OSG reiterates that respondent's repeated failure to file her
Statement of Assets, Liabilities and Net Worth (SALN) and her non-submission thereof to the
JBC which the latter required to prove the integrity of an applicant affect respondent's integrity.
The OSG concludes that respondent, not having possessed of proven integrity, failed to meet
the constitutional requirement for appointment to the Judiciary.
Carefully weighing the arguments advanced by both parties, this Court finds no reason to
reverse its earlier Decision.
I
Respondent is seriously in error for claiming denial of due process. Respondent refuses to
recognize the Court's jurisdiction over the subject matter and over her person on the ground
that respondent, as a purported impeachable official, can only be removed exclusively by
impeachment. Reiterating this argument, respondent filed her Comment to the Petition, moved
that her case be heard on Oral Argument, filed her Memorandum, filed her Reply/Supplement
to the OSG's Memorandum and now, presently moves for reconsideration. All these
representations were made ad cautelam which, stripped of its legal parlance, simply means
that she asks to be heard by the Court which jurisdiction she does not acknowledge. She
asked relief from the Court and was in fact heard by the Court, and yet she claims to have
been denied of due process. She repeatedly discussed the supposed merits of her opposition
to the present quo warranto petition in various social and traditional media, and yet she claims
denial of due process. The preposterousness of her claim deserves scant consideration.
Respondent also harps on the alleged bias on the part of the six (6) Justices and that
supposedly, their failure to inhibit themselves from deciding the instant petition amounts to a
denial of due process.
Respondent's contentions were merely a rehash of the issues already taken into consideration
and properly resolved by the Court. To reiterate, mere imputation of bias or partiality is not
enough ground for inhibition, especially when the charge is without basis. Acts or conduct
clearly indicative of arbitrariness or prejudice has to be shown. 3 Verily, for bias and prejudice to
be considered sufficient justification for the inhibition of a Member of this Court, mere suspicion
is not enough.
Moreover, as discussed in the main Decision, respondent's allegations on the grounds for
inhibition were merely based on speculations, or on distortions of the language, context and
meaning of the answers given by the concerned Justices as resource persons in the
proceedings of the Committee on Justice of the House of Representatives. These matters
were squarely resolved by the Court in its main Decision, as well as in the respective separate
opinions of the Justices involved.
Indeed, the Members of the Court's right to inhibit are weighed against their duty to adjudicate
the case without fear of repression. Respondent's motion to require the inhibition of Justices
Teresita J. Leonardo-De Castro, Lucas P. Bersamin, Diosdado M. Peralta, Francis H.
Jardeleza, Samuel R. Martires, and Noel Gimenez Tijam, who all concurred to the main
Decision, would open the floodgates to the worst kind of forum shopping, and on its face,
would allow respondent to shop for a Member of the Court who she perceives to be more
compassionate and friendly to her cause, and is clearly antithetical to the fair administration of
justice.
Bordering on the absurd, respondent alleges prejudice based on the footnotes of the main
Decision which show that the draft thereof was being prepared as early as March 15, 2018
when respondent has yet to file her Comment. Respondent forgets to mention that the Petition
itself was filed on March 5, 2018 where the propriety of the remedy of quo warranto was
specifically raised. Certainly, there is nothing irregular nor suspicious for the Member-in-
Charge, nor for any of the Justices for that matter, to have made a requisite initial
determination on the matter of jurisdiction. In professing such argument, respondent imputes
fault on the part of the Justices for having been diligent in the performance of their work.
Respondent also considers as irregular the query made by the Member-in-Charge with the
JBC Office of the Executive Officer (OEO) headed by Atty. Annaliza S. Ty-Capacite (Atty.
Capacite ). Respondent points out that the same is not allowed and shows prejudice on the
part of the Court.
For respondent's information, the data were gathered pursuant to the Court En
Bane’s Resolution dated March 20, 2018 wherein the Clerk of Court En Banc and the JBC, as
custodian and repositories of the documents submitted by respondent, were directed to
provide the Court with documents pertinent to respondent's application and appointment as an
Associate Justice in 2010 and as Chief Justice of the Court in 2012 for the purpose of arriving
at a judicious, complete, and efficient resolution of the instant case. In the same manner, the
"corroborative evidence" referred to by respondent simply refers to respondent's acts and
representations ascertainable through an examination of the documentary evidence appended
by both parties to their respective pleadings as well as their representations during the Oral
Argument. Reference to respondent's subsequent acts committed during her incumbency as
Chief Justice, on the other hand, are plainly matters of public record and already determined
by the House of Representatives as constituting probable cause for impeachment.
II
The Court reaffirms its authority to decide the instant quo warranto action. This authority is
expressly conferred on the Supreme Court by the Constitution under Section 5, Article VIII
which states that:
Sec. 5. The Supreme Court shall have the following powers:
1. Exercise original jurisdiction over cases affecting ambassadors, other public ministersand
consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus.
x x x x (Emphasis ours)
Section 5 of Article VIII does not limit the Court's quo warranto jurisdiction only to certain public
officials or that excludes impeachable officials therefrom. In Sarmiento v. Mison, 4 the Court
ruled:
The task of the Court is rendered lighter by the existence of relatively clear provisions in the
Constitution. In cases like this, we follow what the Court, speaking through Mr. Justice (later,
Chief Justice) Jose Abad Santos stated in Gold Creek Mining Corp. v. Rodriguez, that:
The fundamental principle of constitutional construction is to give effect to the intent of the
framers of the organic law and of the people adopting it. The intention to which force is to
be given is that which is embodied and expressed in the constitutional provisions
themselves.5 (Emphasis ours)
The Constitution defines judicial power as a "duty" to be performed by the courts of
justice.6 Thus, for the Court to repudiate its own jurisdiction over this case would be to abdicate
a constitutionally imposed responsibility.
As the Court pointed out in its Decision, this is not the first time the Court took cognizance of
a quo warranto petition against an impeachable officer. In the consolidated cases of Estrada v.
Macapagal-Arroyo7 and Estrada v. Desierto, 8 the Court assumed jurisdiction over a quo
warranto petition that challenged Gloria Macapagal-Arroyo's title to the presidency.
Arguing that the aforesaid cases cannot serve as precedent for the Court to take cognizance of
this case, respondent makes it appear that they involved a totally different issue, one that
concerned Joseph E. Estrada's immunity from suit, specifically: "Whether conviction in the
impeachment proceedings is a condition precedent for the criminal prosecution of petitioner
Estrada. In the negative and on the assumption that petitioner is still President, whether he is
immune from criminal prosecution."9
Respondent's allegation is utterly false and misleading. A cursory reading of the cases will
reveal that Estrada's immunity from suit was just one of the issues raised therein. Estrada in
fact sought a quo warranto inquiry into Macapagal-Arroyo's right to assume the presidency,
claiming he was simply a President on leave.
Respondent also asserts that Estrada cannot serve as precedent for the Court to decide this
case because it was dismissed, and unlike the instant petition, it was filed within the prescribed
one (1)-year period under Section 11, Rule 66 of the Rules of Court. 10
The argument fails to persuade. Estrada was dismissed not because the Court had no
jurisdiction over the quo warranto petition but because Estrada's challenge to Macapagal-
Arroyo's presidency had no merit. In ruling upon the merits of Estrada's quo warranto petition,
the Court has undeniably exercised its jurisdiction under Section 5(1) of Article VIII.
Thus, Estrada clearly demonstrates that the Court's quo warranto jurisdiction extends to
impeachable officers.
Furthermore, as will be discussed elsewhere in this Resolution, the filing of the instant petition
was not time-barred. The issue of prescription must be addressed in light of the public interest
that quo warranto is meant to protect.
Accordingly, the Court could, as it did in Estrada, assume jurisdiction over the instant quo
warranto petition against an impeachable officer.
Quo warranto and impeachment are two distinct proceedings, although both may result in the
ouster of a public officer. Strictly speaking, quo warranto grants the relief of "ouster", while
impeachment affords "removal."
A quo warranto proceeding is the proper legal remedy to determine a person's right or title to a
public office and to oust the holder from its enjoyment. 11 It is the proper action to inquire into a
public officer's eligibility12 or the validity of his appointment. 13 Under Rule 66 of the Rules of
Court, a quo warranto proceeding involves a judicial determination of the right to the use or
exercise of the office.
50
Impeachment, on the other hand, is a political process undertaken by the legislature to
determine whether the public officer committed any of the impeachable offenses, namely,
culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes,
or betrayal of public trust. 14 It does not ascertain the officer's eligibility for appointment or
election, or challenge the legality of his assumption of office. Conviction for any of the
impeachable offenses shall result in the removal of the impeachable official from office. 15
The OSG 's quo warranto petition challenged respondent's right and title to the position of
Chief Justice. He averred that in failing to regularly disclose her assets, liabilities and net worth
as a member of the career service prior to her appointment as an Associate Justice of the
Court, respondent could not be said to possess the requirement of proven integrity demanded
of every aspiring member of the Judiciary. The OSG thus prayed that respondent's
appointment as Chief Justice be declared void.
Clearly, the OSG questioned the respondent's eligibility for appointment as Chief Justice and
sought to invalidate such appointment. The OSG's petition, therefore, is one for quo
warranto over which the Court exercises original jurisdiction.
As the Court previously held, "where the dispute is on the eligibility to perform the duties by the
person sought to be ousted or disqualified a quo warranto is the proper action." 16
Respondent harps on the supposed intent of the framers of the Constitution for impeachable
officers to be removed only through impeachment. 17 However, a circumspect examination of
the deliberations of the 1986 Constitutional Commission will reveal that the framers presumed
that the impeachable officers had duly qualified for the position. Indeed, the deliberations
which respondent herself cited 18 showed that the framers did not contemplate a situation
where the impeachable officer was unqualified for appointment or election.
Accordingly, respondent's continued reliance on the Court's pronouncement in Mayor Lecaroz
v. Sandiganbayan, 19 Cuenca v. Hon. Fernan,20 Jn Re Gonzales,21 Jarque v.
Desierto22 and Marcoleta v. Borra23 (Lecaroz etc.) is misplaced. Not one of these cases
concerned the validity of an impeachable officer's appointment. To repeat, Lecaroz involved a
criminal charge against a mayor before the Sandiganbayan, while the rest were disbarment
cases filed against impeachable officers principally for acts done during their tenure in public
office. The officers' eligibility or the validity of their appointment was not raised before the
Court. The principle laid down in said cases is to the effect that during their incumbency,
impeachable officers cannot be criminally prosecuted for an offense that carries with it the
penalty of removal, and if they are required to be members of the Philippine Bar to qualify for
their positions, they cannot be charged with disbarment. The proscription does not extend to
actions assailing the public officer's title or right to the office he or she occupies. The ruling
therefore cannot serve as authority to hold that a quo warranto action can never be filed
against an impeachable officer.
The Court's quo warranto jurisdiction over impeachable officers also finds basis in paragraph
7, Section 4, Article VII of the Constitution which designates it as the sole judge of the
qualifications of the President and Vice-President, both of whom are impeachable officers.
With this authority, the remedy of quo warranto was provided in the rules of the Court sitting as
the Presidential Electoral Tribunal (PET).
Respondent, however, argues that quo warranto petitions may be filed against the President
and Vice-President under the PET Rules "only because the Constitution specifically permits"
them under Section 4, Article VII. According to respondent, no counterpart provision exists in
the Constitution giving the same authority to the Court over the Chief Justice, the members of
the Constitutional Commissions and the Ombudsman. Respondent, thus, asserts that the
Constitution made a distinction between elected and appointive impeachable officials, and
limited quo warranto to elected impeachable officials. For these reasons, respondent
concludes that by constitutional design, the Court is denied power to remove any of its
members.24
The Court is not convinced. The argument, to begin with, acknowledges that the Constitution in
fact allows quo warranto actions against impeachable officers, albeit respondent limits them to
the President and Vice-President. This admission refutes the very position taken by
respondent that all impeachable officials cannot be sued through quo warranto because they
belong to a "privileged class" of officers who can be removed only through impeachment. 25 To
be sure, Lecaroz, etc. did not distinguish between elected and appointed impeachable officers.
Furthermore, that the Constitution does not show a counterpart provision to paragraph 7 of
Section 4, Article VII for members of this Court or the Constitutional Commissions does not
mean that quo warranto cannot extend to non-elected impeachable officers. The authority to
hear quo warranto petitions against appointive impeachable officers emanates from Section
5(1) of Article VIII which grants quo warranto jurisdiction to this Court without qualification as to
the class of public officers over whom the same may be exercised.
Respondent argues that Section 5(1) of Article VIII is not a blanket authority, otherwise
paragraph 7 of Section 4, Article VII would be "superfluous." Superfluity, however, is not the
same as inconsistency. Section 4, Article VII is not repugnant to, and clearly confirms, the
Court's quo warranto jurisdiction under Section 5(1) of Article VIII. Respondent herself has not
alleged any irreconcilability in these provisions.
Indeed, contrary to respondent's claim, Section 4 of Article VII is not meant to limit the
Court's quo warranto jurisdiction under Article VIII of the Constitution. In fact, We held that
"[t]he power wielded by PET is "a derivative of the plenary judicial power allocated to the
courts of law, expressly provided in the Constitution."26 Thus, the authority under Section 4 of
Article VII to hear quo warranto petitions assailing the qualifications of the President and Vice-
President is simply a component of the Court's quo warranto jurisdiction under Article VIII. This
finds support in the nature of quo warranto as a remedy to determine a person's right or title to
a public office, 27 which is not confined to claims of ineligibility but extends to other instances or
claims of usurpation or unlawful holding of public office as in the cases of Lota v. CA and
Sangalang,28 Moro v. Del Castillo, Jr.,29 Mendoza v. Allas,30 Sen. Defensor Santiago v. Sen.
Guingona, Jr. 31 and Estrada. It will be recalled that in Estrada, the Court took cognizance of,
and ruled upon, a quo warranto challenge to a vice-president's assumption of the presidency;
the challenge was based, not on ineligibility, but on therein petitioner's claim that he had not
resigned and was simply a president on leave. To sustain respondent's argument, therefore, is
to unduly curtail the Court's judicial power and to dilute the efficacy of quo warranto as a
remedy against the "unauthorized arbitrary assumption and exercise of power by one without
color of title or who is not entitled by law thereto." 32 It bears to reiterate that:
While an appointment is an essentially discretionary executive power, it is subject to the
limitation that the appointee should possess none of the disqualifications but all the
qualifications required by law. Where the law prescribes certain qualifications for a given
office or position, courts may determine whether the appointee has the requisite
qualifications, absent which, his right or title thereto may be declared void. 33 (Citations
omitted and emphasis ours)
This Court has the constitutional mandate to exercise jurisdiction over quo warranto petitions.
And as Estrada and the PET Rules show, impeachable officers are not immune to quo
warranto actions. Thus, a refusal by the Court to take cognizance of this case would not only
be a breach of its duty under the Constitution, it would also accord respondent an exemption
not given to other impeachable officers. Such privilege finds no justification either in law, as
impeachable officers are treated without distinction under the impeachment provisions 34 of the
Constitution, or in reason, as the qualifications of the Chief Justice are no less important than
the President's or the Vice-President's.
Respondent's insistence that she could not be removed from office except through
impeachment is predicated on Section 2, Article XI of the Constitution. It reads:
Sec. 2. The President, the Vice-President, the Members of the Supreme Court, the Members
of the Constitutional Commissions, and the Ombudsman may be removed from office on
impeachment for, and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public trust. All other
public officers and employees may be removed from office as provided by law, but not by
impeachment. (Emphasis ours)
By its plain language, however, Section 2 of Article XI does not preclude a quo warranto action
questioning an impeachable officer's qualifications to assume office. These qualifications
include age, citizenship and professional experience - matters which are manifestly outside the
purview of impeachment under the above-cited provision.
Furthermore, Section 2 of Article XI cannot be read in isolation from Section 5(1) of Article VIII
of the Constitution which gives this Court its quo warranto jurisdiction, or from Section 4,
paragraph 7 of Article VII of the Constitution which designates the Court as the sole judge of
the qualifications of the President and Vice-President.
35
In Civil Liberties Union v. The Executive Secretary, the Court held:
It is a well-established rule in constitutional construction that no one provision of the
Constitution is to be separated from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the instrument. Sections bearing on a
particular subject should be considered and interpreted together as to effectuate the whole
purpose of the Constitution and one section is not to be allowed to defeat another, if by any
reasonable construction, the two can be made to stand together.
In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the
words idle and nugatory. 36 (Citations omitted)
Section 2 of Article XI provides that the impeachable officers may be removed from office on
impeachment for and conviction of culpable violation of the Constitution, treason, bribery, graft
and corruption, other high crimes, or betrayal of public trust. Lack of qualifications for
appointment or election is evidently not among the stated grounds for impeachment. It is,
however, a ground for a quo warranto action over which this Court was given original
jurisdiction under Section 5(1) of Article VIII. The grant of jurisdiction was not confined to
unimpeachable officers. In fact, under Section 4, paragraph 7 of Article VII, this Court was
expressly authorized to pass upon the qualifications of the President and Vice-President. Thus,
the proscription against the removal of public officers other than by impeachment does not
apply to quo warranto actions assailing the impeachable officer's eligibility for appointment or
election.
This construction allows all three provisions to stand together and to give effect to the clear
intent of the Constitution to address not only the impeachable offenses but also the issue of
qualifications of public officers, including impeachable officers.
As this Court intoned in its Decision, to take appointments of impeachable officers beyond the
reach of judicial review is to cleanse them of any possible defect pertaining to the
constitutionally prescribed qualifications which cannot otherwise be raised in an impeachment
proceeding.
To illustrate this, the Court cited the requirement that the impeachable officer must be a
natural-born citizen of the Philippines. We explained that if it turns out that the impeachable
officer is in fact of foreign nationality, respondent's argument will prevent this Court from
inquiring into this important qualification that directly affects the officer's ability to protect the
interests of the State. Unless convicted of an impeachable offense, the officer will continue in
office despite being clearly disqualified from holding it. We stressed that this could not have
been the intent of the framers of the Constitution.
Respondent, however, contends that the above-cited defect will actually constitute a ground for
impeachment because the appointee's continued exercise of public functions despite
knowledge of his foreign nationality amounts to a culpable violation of the Constitution.
The argument is untenable. Citizenship is a qualification issue which this Court has the
authority to resolve. Thus, in Kilosbayan Foundation v. Exec. Sec. Ermita,37 where the
appointment of Sandiganbayan Justice Gregory S. Ong (Ong) to this Court was sought to be
annulled for the latter's supposed failure to comply with the citizenship requirement under the
Constitution, We stated that:
Third, as to the proper forum for litigating the issue of respondent Ong's qualification for
membership of this Court. This case is a matter of primordial importance involving
compliance with a Constitutional mandate. As the body tasked with the determination of
the merits of conflicting claims under the Constitution, the Court is the proper forum for
resolving the issue, even as the JBC has the initial competence to do so. 38 (Citation
omitted and emphasis ours)
In the subsequent case of Topacio v. Assoc. Justice Gregory Santos Ong, et al., 39 Ong's
citizenship was raised anew, this time to prevent him from further exercising the office of a
Sandiganbayan Associate Justice. The Court held that the challenge was one against Ong's
title to the office which must be raised in a quo warranto proceeding, thus:
While denominated as a petition for certiorari and prohibition, the petition partakes of
the nature of a quo warranto proceeding with respect to Ong, for it effectively seeks to
declare null and void his appointment as an Associate Justice of the Sandiganbayan for
being unconstitutional. While the petition professes to be one for certiorari and prohibition,
petitioner even adverts to a quo warranto aspect of the petition.
Being a collateral attack on a public officer's title, the present petition for certiorari and
prohibition must be dismissed.
The title to a public office may not be contested except directly, by quo
warranto proceedings; and it cannot be assailed collaterally, even through mandamus or
a motion to annul or set aside order. In Nacionalista Party v. De Vera, the Court ruled that
prohibition does not lie to inquire into the validity of the appointment of a public officer.
x x x [T]he writ of prohibition, even when directed against persons acting as judges or other
judicial officers, cannot be treated as a substitute for quo warranto or be rightfully called
upon to perform any of the functions of the writ. If there is a court, judge or officer de
facto, the title to the office and the right to act cannot be questioned by prohibition. If an
intruder takes possession of a judicial office, the person dispossessed cannot obtain relief
through a writ of prohibition commanding the alleged intruder to cease from performing judicial
acts, since in its very nature prohibition is an improper remedy by which to determine the
title to an office.40 (Citations omitted and emphasis ours)
Determining title to the office on the basis of a public officer's qualifications is the function
of quo warranto. For this reason, impeachment cannot be treated as a substitute for quo
warranto.
Furthermore, impeachment was designed as a mechanism "to check abuse of power." 41 The
grounds for impeachment, including culpable violation of the Constitution, have been described
51
as referring to "serious crimes or misconduct" 42 of the "vicious and malevolent"
kind.43 Citizenship issues are hardly within the ambit of this constitutional standard.
The Constitution must be construed in light of the object sought to be accomplished and the
evils sought to be prevented or remedied.44 An interpretation that would cause absurdity is not
favored.45
It thus bears to reiterate that even the PET Rules expressly provide for the remedy of election
protest. Following respondent's theory that an impeachable officer can be removed only
through impeachment means that a President or Vice-President against whom an election
protest has been filed can demand for the dismissal of the protest on the ground that it can
potentially cause his/her removal from office through a mode other than by impeachment. To
sustain respondent's position is to render election protests under the PET Rules nugatory. The
Constitution could not have intended such absurdity since fraud and irregularities in elections
cannot be countenanced, and the will of the people as reflected in their votes must be
determined and respected.
The preposterousness of allowing unqualified public officials to continue occupying their
positions by making impeachment the sole mode of removing them was likewise aptly
discussed by Our esteemed colleague Justice Estela M. Perlas-Bernabe when she stated that
qualification should precede authority, viz:
Owing to both the "political" and "offense-based" nature of these grounds, I am thus inclined to
believe that impeachment is not the sole mode of "removing" impeachable officials as it be
clearly absurd for any of them to remain in office despite their failure to meet the minimum
eligibility requirements, which failure does not constitute a ground for impeachment. Sensibly,
there should be a remedy to oust all our public officials, no matter how high-ranking they are or
criticial their functions may be, upon a determination that they have not actually qualified for
election or appointment. While I do recognize the wisdom of insulating impeachable officials
from suits that may impede the performance of vital public functions, ultimately, this concern
cannot override the basic qualification requirements of public office. There is no doubt that
qualification should precede authority. Every public office is created and conferred by
law.xx x. 46 (Emphasis in the original)
Underlying all constitutional provisions on government service is the principle that public office
is a public trust.47 The people, therefore, have the right to have only qualified individuals
appointed to public office. To construe Section 2, Article XI of the Constitution as proscribing
a quo warranto petition is to deprive the State of a remedy to correct a public wrong arising
from defective or void appointments. Equity, however, will not suffer a wrong to be without
remedy.48 It stands to reason, therefore, that quo warranto should be available to question the
validity of appointments especially of impeachable officers since they occupy the upper
echelons of government and are capable of wielding vast power and influence on matters of
law and policy.
III
Much noise and hysteria have been made that a sitting Chief Justice can only be removed by
impeachment and that quo warranto is an improper remedy not sanctioned by the Constitution.
The wind of disinformation was further fanned by respondent who claimed that her ouster was
orchestrated by the President. This campaign of misinformation attempted to conceal and
obfuscate the fact that the main issue in the petition which the Court is tasked to resolve is the
qualification of respondent.
In the instant motion, respondent made mention of Senate Resolution No. 738, 49 which urges
this Court to review Our May 11, 2018 Decision as it sets a "dangerous precedent that
transgresses the exclusive powers of the legislative branch to initiate, try and decide all cases
of impeachment." This Resolution was supposedly aimed to express "the sense of the Senate
to uphold the Constitution on the matter of removing a Chief Justice from office." We have to
remind the respondent, however, that while a majority of the Senators - 14 out of the 23
members - signed the said Resolution, the same has not yet been adopted by the Senate to
date. In fact, the Court takes judicial notice that on May 31, 2018, the Senate adjourned its
interpellation without any conclusion as to whether the Resolution is adopted. 50 Without such
approval, the Senate Resolution amounts to nothing but a mere scrap of paper at present.
The Senate Resolution also appears to have been drafted, signed by some Senators, and
interpellated on while respondent's motion for reconsideration is still pending consideration by
the Court. While the concerned Members of the Senate insist on non-encroachment of powers,
the Senate Resolution itself tends to influence, if not exert undue pressure on, the Court on
how it should resolve the pending motion for reconsideration. The importance and high regard
for the institution that is the Senate is undisputed. But the Court, in the discharge of its
Constitutional duty, is also entitled to the same degree of respect and deference.
At any rate, and with due regard to the Members of the Senate, We emphasize that the judicial
determination of actual controversies presented before the courts is within the exclusive
domain of the Judiciary. "The separation of powers doctrine is the backbone of our tripartite
system of government. It is implicit in the manner that our Constitution lays out in separate and
distinct Articles the powers and prerogatives of each co-equal branch of government."51 Thus,
the act of some of the Senators questioning the Court's judicial action is clearly an
unwarranted intrusion to the Court's powers and mandate.
To disabuse wandering minds, there is nothing violative or intrusive of the Senate's power to
remove impeachable officials in the main Decision. In fact, in the said assailed Decision, We
recognized that the Senate has the sole power to try and decide all cases of impeachment. We
have extensively discussed therein that the Court merely exercised its Constitutional duty to
resolve a legal question referring to respondent's qualification as a Chief Justice of the
Supreme Court. We also emphasized that this Court's action never intends to deprive the
Congress of its mandate to make a determination on impeachable officials' culpability for acts
committed while in office. We even explained that impeachment and quo warranto may
proceed independently and simultaneously, albeit a ruling of removal or ouster of the
respondent in one case will preclude the same ruling in the other due to legal impossibility and
mootness.
Quo warranto is not a figment of imagination or invention of this Court. It is a mandate boldly
enshrined in the Constitution52 where the judiciary is conferred original jurisdiction to the
exclusion of the other branches of the government. Quo warranto, not impeachment, is the
constitutional remedy prescribed to adjudicate and resolve questions relating to qualifications,
eligibility and entitlement to public office. Those who chose to ignore this fact are
Constitutionally blind. US Supreme Court Justice Scalia once said: "If it is in the Constitution, it
is there. If it is not in the Constitution, it is not there." 53 There is nothing in Our Constitution
that says that impeachable officers are immuned, exempted, or excluded from quo
warranto proceedings when the very issue to be determined therein is the status of an officer
as such. No amount of public indignation can rewrite or deface the Constitution.
IV
The plain issue in the instant case is whether respondent is eligible to occupy the position of
Chief Justice. To determine whether or not respondent is eligible, the primordial consideration
is whether respondent met the requisite Constitutional requirements for the position. Questions
on eligibility therefore present a justiciable issue, which can be resolved by juxtaposing the
facts with the Constitution, as well as pertinent laws and jurisprudence. In Kilosbayan
Foundation,54 the Court affirmed its jurisdiction to resolve the issue on the qualification for
membership of this Court as the body tasked with the determination of the merits of conflicting
claims under the Constitution, even when the JBC has the initial competence to do so. 55
True enough, constitutionally committed to the JBC is the principal function of recommending
appointees to the Judiciary. The function to recommend appointees carries with it the
concomitant duty to screen applicants therefor. The JBC's exercise of its recommendatory
function must nevertheless conform with the basic premise that the appointee possesses the
non-negotiable qualifications prescribed by the Constitution. While the JBC enjoys a certain
leeway in screening aspiring magistrates, such remains to be tightly circumscribed by the
Constitutional qualifications for aspiring members of the Judiciary. 56 These Constitutional
prerequisites are therefore deemed written into the rules and standards which the JBC may
prescribe in the discharge of its primary function. The JBC cannot go beyond or less than what
the Constitution prescribes.
The surrender to the JBC of the details as to how these qualifications are to be determined is
rendered necessary and in keeping with its recommendatory function which is nevertheless
made expressly subject to the Court's exercise of supervision.
As an incident of its power of supervision over the JBC, the Court has the authority to insure
that the JBC performs its duties under the Constitution and complies with its own rules and
standards. Indeed, supervision is an active power and implies the authority to inquire into facts
and conditions that renders the power of supervision real and effective. 57 Under its power of
supervision, the Court has ample authority to look into the processes leading to respondent's
nomination for the position of Chief Justice on the face of the Republic's contention that
respondent was ineligible to be a candidate to the position to begin with.
Arguments were raised against the Court's assumption over the quo warranto petition on the
premise that the determination of the integrity requirement lies solely on the JBC's discretion
and thus, a prior nullification of the JBC's act on the ground of grave abuse of discretion
through a certiorari petition is the proper legal route.
The question of whether or not a nominee possesses the reqms1te qualifications is determined
based on facts and as such, generates no exercise of discretion on the part of the nominating
body. Thus, whether a nominee is of the requisite age, is a natural-born citizen, has met the
years of law practice, and is of proven competence, integrity, probity, and independence are to
be determined based on facts and cannot be made dependent on inference or discretion,
much less concessions, which the recommending authority may make or extend. To say that
the determination of whether a nominee is of "proven integrity" is a task absolutely contingent
upon the discretion of the JBC is to place the integrity requirement on a plateau different from
the rest of the Constitutional requirements, when no such distinction is assigned by the
Constitution. As well, to treat as discretionary on the part of the JBC the question of whether a
nominee is of "proven integrity" is to render the Court impotent to nullify an otherwise
unconstitutional nomination unless the Court's jurisdiction is invoked on the ground of grave
abuse of discretion. Such severely limiting course of action would effectively diminish the
Court's collegial power of supervision over the JBC.
To re-align the issue in this petition, the Republic charges respondent of unlawfully holding or
exercising the position of Chief Justice of the Supreme Court. The contents of the petition pose
an attack to respondent's authority to hold or exercise the position. Unmoving is the rule that
title to a public office may not be contested except directly, by quo warranto proceedings. 58 As
it cannot be assailed collaterally, certiorari is an infirm remedy for this purpose. It is for this
reason that the Court previously denied a certiorari and prohibition petition which sought to
annul appointment to the Judiciary of an alleged naturalized citizen. 59
Aguinaldo, et al. v. Aquino, et al., 60 settles that when it is the qualification for the position that
is in issue, the proper remedy is quo warranto pursuant to Topacio. 61 But when it is the act of
the appointing power that is placed under scrutiny and not any disqualification on the part of
the appointee, a petition for certiorari challenging the appointment for being unconstitutional or
for having been done in grave abuse of discretion is the apt legal course. In Aguinaldo, the
Court elucidated:
The Court recognized in Jardeleza v. Sereno that a petition for certiorari is a proper remedy to
question the act of any branch or instrumentality of the government on the ground of grave
abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality
of the government, even if the latter does not exercise judicial, quasi-judicial or ministerial
functions.
In opposing the instant Petition for Certiorari and Prohibition, the OSG cites Topacio in which
the Court declares that title to a public office may not be contested except directly, by quo
warranto proceedings; and it cannot be assailed collaterally, such as by certiorari and
prohibition.
However, Topacio is not on all fours with the instant case. In Topacio, the writs of certiorari and
prohibition were sought against Sandiganbayan Associate Justice Gregory S. Ong on the
ground that he lacked the qualification of Filipino citizenship for said position. In contrast, the
present Petition for Certiorari and Prohibition puts under scrutiny, not any disqualification on
the part of respondents Musngi and Econg, but the act of President Aquino in appointing
respondents Musngi and Econg as Sandiganbayan Associate Justices without regard for the
clustering of nominees into six separate shortlists by the JBC, which allegedly violated the
Constitution and constituted grave abuse of discretion amounting to lack or excess of
jurisdiction. This would not be the first time that the Court, in the exercise of its expanded
power of judicial review, takes cognizance of a petition for certiorari that challenges a
presidential appointment for being unconstitutional or for having been done in grave abuse of
discretion.xx x.62 (Italics and citations omitted.)
A certiorari petition also lacks the safeguards installed in a quo warranto action specifically
designed to promote stability in public office and remove perpetual uncertainty in the title of the
person holding the office. For one, a certiorari petition thrives on allegation and proof of grave
abuse of discretion. In a quo warranto action, it is imperative to demonstrate that the
respondent have usurped, intruded into or unlawfully held or exercised a public office, position
or franchise.
For another, certiorari may be filed by any person alleging to have been aggrieved by an act
done with grave abuse of discretion. In a quo warranto action, it is the Solicitor General or a
public prosecutor, when directed by the President or when upon complaint or when he has
good reason to believe that the grounds for quo warranto can be established by proof, who
must commence the action. The only instance when an individual is allowed to commence
such action is when he or she claims to be entitled to a public office or position usurped or
unlawfully held or exercised by another. In such case, it is incumbent upon the private person
to present proof of a clear and indubitable right to the office. If certiorari is accepted as the
proper legal vehicle to assail eligibility to public office then any person, although unable to
demonstrate clear and indubitable right to the office, and merely upon claim of grave abuse of
discretion, can place title to public office in uncertainty.
Tellingly also, the rules on quo warranto do not require that the recommending or appointing
authority be impleaded as a necessary party, much less makes the nullification of the act of the
recommending authority a condition precedent before the remedy of quo warranto can be
availed of. The JBC itself did not bother to intervene in the instant petition.
Under Section 6, Rule 66 of the Rules of Court, when the action is against a person for
usurping a public office, position or franchise, it is only required that, if there be a person who
claims to be entitled thereto, his or her name should be set forth in the petition with an
averment of his or her right to the office, position or franchise and that the respondent is
unlawfully in possession thereof. All persons claiming to be entitled to the public office, position
or franchise may be made parties and their respective rights may be determined in the
same quo warranto action. The appointing authority, or in this case the recommending
authority which is the JBC, is therefore not a necessary party in a quo warranto action.
Peculiar also to the instant petition is the surrounding circumstance that an administrative
matter directly pertaining to the nomination of respondent is pending before the Court. While
the administrative matter aims to determine whether there is culpability or lapses on the part of
the JBC members, the factual narrative offered by the latter are all extant on record which the
52
Court can take judicial notice of. Thus, considerations regarding the lack of due process on the
part of the JBC present only a superficial resistance to the Court's assumption of jurisdiction
over the instant quo warranto petition.
In any case, the rules on quo warranto vests upon the Court ancillary jurisdiction to render
such further judgment as "justice requires." 63 Indeed, the doctrine of ancillary jurisdiction
implies the grant of necessary and usual incidental powers essential to effectuate its
jurisdiction and subject to existing laws and constitutional provisions, every regularly
constituted court has power to do all things that are reasonably necessary for the
administration of justice within the scope of its jurisdiction and for the enforcement of its
judgments and mandates. 64 Accordingly, "demands, matters or questions ancillary or
incidental to, or growing out of, the main action, and coming within the above principles, may
be taken cognizance of by the court and determined, since such jurisdiction is in aid of its
authority over the principal matter, even though the court may thus be called on to consider
and decide matters which, as original causes of action, would not be within its cognizance." 65
V file baseless quo warranto actions in disregard of the constitutionally-protected rights of
This Court had likewise amply laid down the legal and factual bases for its ruling against the
dismissal of the instant petition on the ground of prescription. Our ruling on this matter is
anchored upon the very purpose of such prescriptive period as consistently held by this Court
for decades and also upon consideration of the unique underlying circumstances in this case
which cannot be ignored.
In addition to the catena of cases cited in the assailed Decision, the Court, in Madrigal v. Prov.
Gov. Lecaroz, 66 exhaustively explained the rationale behind the prescriptive period:
The unbending jurisprudence in this jurisdiction is to the effect that a petition for quo
warranto and mandamus affecting titles to public office must be filed within one (1) year from
the date the petitioner is ousted from his position. xx x The reason behind this being was
expounded in the case of Unabia v. City Mayor, etc., x x x where We said:
"x x x[W]e note that in actions of quo warranto involving right to an office, the action must be
instituted within the period of one year. This has been the law in the island since 1901, the
period having been originally fixed in Section 216 of the Code of Civil Procedure (Act No.
190). We find this provision to be an expression of policy on the part of the State
that persons claiming a right to an office of which they are illegally dispossessed
should immediately take steps to recover said office and that if they do not do so within
a period of one year, they shall be considered as having lost their right thereto by
abandonment. There are weighty reasons of public policy and convenience that demand the
adoption of a similar period for persons claiming rights to positions in the civil service. There
must be stability in the service so that public business may [not] be unduly retarded;
delays in the statement of the right to positions in the service must be discouraged. The
following considerations as to public officers, by Mr. Justice Bengzon, may well be applicable
to employees in the civil service:
'Furthermore, constitutional rights may certainly be waived, and the inaction of the officer
for one year could be validly considered as waiver, i.e., a renunciation which no principle of
justice may prevent, he being at liberty to resign his position anytime he pleases.
And there is good justification for the limitation period; it is not proper that the title to public
office should be subjected to continued uncertain[t]y, and the peoples' interest require that
such right should be determined as speedily as practicable.'
"Further, the Government must be immediately informed or advised if any person claims
to be entitled to an office or a position in the civil service as against another actually
holding it, so that the Government may not be faced with the predicament of having to
pay the salaries, one, for the person actually holding the office, although illegally, and
another, for one not actually rendering service although entitled to do so.xx
x."67 (Citations omitted and emphasis ours)
The long line of cases decided by this Court since the l 900's, which specifically explained the
spirit behind the rule providing a prescriptive period for the filing of an action for quo
warranto, reveals that such limitation can be applied only against private individuals claiming
rights to a public office, not against the State.
Indeed, there is no proprietary right over a public office. Hence, a claimed right over a public
office may be waived. In fact, even Constitutionally-protected rights may be waived. Thus, We
have consistently held that the inaction of a person claiming right over a public office to assert
the same within the prescriptive period provided by the rules, may be considered a waiver of
such right. This is where the difference between a quo warranto filed by a private individual as
opposed to one filed by the State through the Solicitor General lies. There is no claim of right
over a public office where it is the State itself, through the Solicitor General, which files a
petition for quo warranto to question the eligibility of the person holding the public office. As
We have emphasized in the assailed Decision, unlike Constitutionally-protected rights,
Constitutionally-required qualifications for a public office can never be waived either
deliberately or by mere passage of time. While a private individual may, in proper instances, be
deemed to have waived his or her right over title to public office and/or to have acquiesced or
consented to the loss of such right, no organized society would allow, much more a prudent
court would consider, the State to have waived by mere lapse of time, its right to uphold and
ensure compliance with the requirements for such office, fixed by no less than the Constitution,
the fundamental law upon which the foundations of a State stand, especially so when the
government cannot be faulted for such lapse.
On another point, the one-year prescriptive period was necessary for the government to be
immediately informed if any person claims title to an office so that the government may not be
faced with the predicament of having to pay two salaries, one for the person actually holding it
albeit illegally, and another to the person not rendering service although entitled to do so. It
would thus be absurd to require the filing of a petition for quo warranto within the one-year
period for such purpose when it is the State itself which files the same not for the purpose of
determining who among two private individuals are entitled to the office. Stated in a different
manner, the purpose of the instant petition is not to inform the government that it is facing a
predicament of having to pay two salaries; rather, the government, having learned of the
predicament that it might be paying an unqualified person, is acting upon it head-on.
Most importantly, urgency to resolve the controversy on the title to a public office to prevent a
hiatus or disruption in the delivery of public service is the ultimate consideration in prescribing
a limitation on when an action for quo warranto may be instituted. However, it is this very same
concern that precludes the application of the prescriptive period when it is the State which
questions the eligibility of the person holding a public office and not merely the personal
interest of a private individual claiming title thereto. Again, as We have stated in the assailed
Decision, when the government is the real party in interest and asserts its rights, there can be
no defense on the ground of laches or limitation, 68 otherwise, it would be injurious to public
interest if this Court will not act upon the case presented before it by the Republic and merely
allow the uncertainty and controversy surrounding the Chief Justice position to continue.
Worthy to mention is the fact that this is not the first time that this Court precluded the
application of the prescriptive period in filing a petition for quo
warranto. In Cristobal v. Melchor,69 the Court considered certain exceptional circumstances
attending the case, which took it out of the rule on the one-year prescriptive period. Also,
in Agcaoili v. Suguitan, 70 the Court considered, among others, therein petitioner's good faith
and the injustice that he suffered due to his forcible ouster from office in ruling that he is not
bound by the provision on the prescriptive period in filing his action for quo warranto to assert
his right to the public office. When the Court in several cases exercised liberality in the
application of the statute of limitations in favor of private individuals so as not to defeat their
personal interests on a public position, is it not but proper, just, reasonable, and more in
accord with the spirit of the rule for this Court to decide against the application of the
prescriptive period considering the public interest involved? Certainly, it is every citizen's
interest to have qualified individuals to hold public office, especially which of the highest
position in the Judiciary.
From the foregoing disquisition, it is clear that this Court's ruling on the issue of prescription is
not grounded upon provisions of the Civil Code, specifically Article 1108(4) 71 thereof. Instead,
the mention thereof was intended merely to convey that if the principle that "prescription does
not lie against the State" can be applied with regard to property disputes, what more if the
underlying consideration is public interest.
To be clear, this Court is not abolishing the limitation set by the rules in instituting a petition
for quo warranto. The one-year prescriptive period under Section 11, Rule 66 of the Rules of
Court still stands. However, for reasons explained above and in the main Decision, this Court
made distinctions as to when such prescriptive period applies, to wit: (1) when filed by the
State at its own instance, through the Solicitor General, 72 prescription shall not apply. This, of
course, does not equate to a blanket authority given to the Solicitor General to indiscriminately
individuals; (2) when filed by the Solicitor General or public prosecutor at the request and upon
relation of another person, with leave of court, 73 prescription shall apply except when
established jurisprudential exceptions 74 are present; and (3) when filed by an individual in his
or her own name, 75 prescription shall apply, except when established jurisprudential
exceptions are present. In fine, Our pronouncement in the assailed Decision as to this matter
explained that certain circumstances preclude the absolute and strict application of the
prescriptive period provided under the rules in filing a petition for quo warranto.
Thus, this Court finds no reason to reverse its ruling that an action for quo warranto is
imprescriptible if brought by the State at its own instance, as in the instant case.
In any case, and as aptly discussed in the main Decision, the peculiarities of the instant case
preclude strict application of the one-year prescriptive period against the State. As observed by
Justice Perlas-Bernabe in her Separate Opinion, "x x x if there is one thing that is glaringly
apparent from these proceedings, it is actually the lack of respondent's candor and
forthrightness in the submission of her SALNs." 76 Respondent's actions prevented the State
from discovering her disqualification within the prescriptive period. Most certainly, thus the
instant case is one of those proper cases where the one-year prescriptive period set under
Section 11, Rule 66 of the Rules of Court should not apply.
VI
Respondent reiterates her argument that her case should be treated similarly as in Concerned
Taxpayer v. Doblada Jr. 77
As extensively discussed in the main Decision, respondent, unlike Doblada, did not present
contrary proof to rebut the Certifications from U.P. HRDO that respondent's SALNs for 1986,
1987, 1988, 1992, 1999, 2000, 2001, 2003, 2004, 2005 and 2006 are not in its possession and
from the Ombudsman that based on its records, there is no SALN filed by respondent except
that for 1998. Being uncontroverted, these documents suffice to support this Court's conclusion
that respondent failed to file her SALNs in accordance with law.
In Doblada, the contrary proof was in the form of the letter of the head of the personnel of
Branch 155 that the SALN for 2000 exists and was duly transmitted and received by the Office
of the Court Administrator as the repository agency. In respondent's case, other than her bare
allegations attacking the credibility of the aforesaid certifications from U.P. HR.DO and the
Ombudsman, no supporting proof was presented. It bears to note that these certifications from
the aforesaid public agencies enjoy a presumption that official duty has been regularly
performed. These certifications suffice as proof of respondent's failure to file her SALN until
contradicted or overcome by sufficient evidence. Consequently, absent a countervailing
evidence, such disputable presumption becomes conclusive. 78
As what this Court has stated in its May 11, 2018 Decision, while government employees
cannot be required to keep their SALNs for more than 10 years based from the provisions of
Section 8, paragraph C(4) of Republic Act No. 6713, 79 the same cannot substitute for
respondent's manifest ineligibility at the time of her application. Verily, even her more recent
SALNs, such as those in the years of 2002 to 2006, which in the ordinary course of things
would have been easier to retrieve, were not presented nor accounted for by respondent.
Respondent attempts to strike a parallelism with Doblada by claiming that she, too, religiously
filed her SALNs. The similarity however, ends there. Unlike in Doblada, respondent failed to
present contrary proof to rebut the evidence of non-filing. If, indeed, she never missed filing her
SALNs and the same were merely lost, or missing in the records of the repository agency, this
Court sees nothing that would prevent respondent from securing a Certification which would
provide a valid or legal reason for the copies' non-production.
VII
Respondent insists that the filing of SALNs bears no relation to the Constitutional qualification
of integrity.1âwphi1 For her, the measure of integrity should be as what the JBC sets it to be
and that in any case, the SALN laws, being malum prohibitum, do not concern adherence to
moral and ethical principles.
Respondent's argument, however, dangerously disregards that the filing of SALN is not only a
requirement under the law, but a positive duty required from every public officer or employee,
first and foremost by the Constitution. 80 The SALN laws were passed in aid of the enforcement
of the Constitutional duty to submit a declaration under oath of one's assets, liabilities, and net
worth. This positive Constitutional duty of filing one's SALN is so sensitive and important that it
even shares the same category as the Constitutional duty imposed upon public officers and
employees to owe allegiance to the State and the Constitution. 81 As such, offenses against
the SALN laws are not ordinary offenses but violations of a duty which every public officer and
employee owes to the State and the Constitution. In other words, the violation of SALN laws,
by itself, defeats any claim of integrity as it is inherently immoral to violate the will of the
legislature and to violate the Constitution.
Integrity, as what this Court has defined in the assailed Decision, in relation to a judge's
qualifications, should not be viewed separately from the institution he or she represents.
Integrity contemplates both adherence to the highest moral standards and obedience to laws
and legislations. Integrity, at its minimum, entails compliance with the law.
In sum, respondent has not presented any convincing ground that would merit a modification
or reversal of Our May 11, 2018 Decision. Respondent, at the time of her application, lacked
proven integrity on account of her failure to file a substantial number of SALNs and also, her
failure to submit the required SALNs to the JBC during her application for the position.
Although deviating from the majority opinion as to the proper remedy, Justice Antonio T.
Carpio shares the same finding:
Since respondent took her oath and assumed her posit10n as Associate Justice of the
Supreme Court on 16 August 2010, she was required to file under oath her SALN within thirty
(30) days after assumption of office, or until 15 September 2010, and the statements must be
reckoned as of her first day of service, pursuant to the relevant provisions on SALN filing.
However, respondent failed to file a SALN containing sworn statements reckoned as of
her first day of service within thirty (30) days after assuming office. While she allegedly
submitted an "entry SALN" on 16 September 2010, it was unsubscribed and the statements of
her assets, liabilities and net worth were reckoned as of 31 December 2009, and not as of her
first day of service, or as of 16 August 2010. x x x
53
The Constitution, law, and rules clearly require that the sworn entry SALN "must be reckoned
as of his/her first day of service" and must be filed "within thirty (30) days after assumption of
office." Evidently, respondent failed to file under oath a SALN reckoned as of her first day of
service, or as of 16 August 2010, within the prescribed period of thirty (30) days after her
assumption of office. In other words, respondent failed to file the required SALN upon her
assumption of office, which is a clear violation of Section 17, Article XI of the Constitution. In
light of her previous failure to file her SALNs for several years while she was a UP College of
Law Professor, her failure to file her SALN upon assuming office in 2010 as Associate Justice
of this Court constitutes culpable violation of the Constitution, a violation committed while she
82
was already serving as an impeachable office. (Citation omitted and emphasis ours)

Having settled respondent's ineligibility and ouster from the position, the Court reiterates its
directive to the JBC to immediately commence the application, nomination and
recommendation process for the position of Chief Justice of the Supreme Court.

WHEREFORE, respondent Maria Lourdes P. A. Sereno's Ad Cautelam Motion for

Reconsideration is DENIED with FINALITY for lack of merit. No further pleadings shall be
entertained. Let entry of judgment be made immediately.

The Court REITERATES its order to the Judicial and Bar Council to commence the application
and nomination process for the position of the Chief Justice without delay. The ninety-day (90)
period83 for filling the vacancy shall be reckoned from the date of the promulgation of this
Resolution.

SO ORDERED.

54
 G.R. No. 217617, April 05, 2017 before the RTC Makati and, citing Spouses Ching v. Court of Appeals,2 the husband
of a judgment debtor is not a stranger to a case who can file a separate and
independent action to determine the validity of the levy and sale of a property.
CARMELITA T. BORLONGAN, Petitioner, v. BANCO DE ORO (FORMERLY
EQUITABLE PCI BANK), Respondent. On a motion for reconsideration filed by Eliseo, the Pasig RTC reinstated the case
with qualification. Relying on Buado v. Court of Appeals,3 the Pasig RTC held that
since majority of Eliseo's causes of action were premised on a claim that the
G.R. No. 218540 obligation contracted by his wife has not redounded to their family, and, thus, the
levy on their property was illegal, his filing of a separate action is not an
ELISEO C. BORLONGAN, JR., Petitioner, v. BDO UNIBANK, INC. (FORMERLY encroachment on the jurisdiction of the Makati RTC, which ordered the attachment
EQUITABLE PCI BANK), Respondent. and execution in the first place.

The Pasig RTC clarified, however, that it cannot annul the surety agreements
RESOLUTION supposedly signed by Carmelita since Eliseo was not a party to those agreements
and the validity and efficacy of these contracts had already been decided by the
Makati RTC.
VELASCO JR., J.:
Both Eliseo and BDO referred the Pasig RTC's Decision to the Court of Appeals
(CA).
Nature of the Case
In its petition, docketed as CA-G.R. SP No. 133994, BDO contended that it was an
Before the Court are two consolidated petitions invariably assailing the foreclosure error for the Pasig RTC to apply Buado as it does not apply squarely to the
sale of a property without properly serving the summons upon its owners. circumstances of the case and has not superseded Ching. BDO maintained that by
reinstating the complaint, Pasig RTC has violated the rule prohibiting non-
Factual Antecedents interference by one court with the orders of a coequal court.

Sometime in 1976, Eliseo Borlongan, Jr. (Eliseo) and his wife Carmelita, acquired a
real property located at No. 111, Sampaguita St., Valle Verde II, Pasig City In its January 20, 2015 Decision,4 the appellate court granted BDO's petition and
covered by Transfer Certificate of Title (TCT) No. 0421 (the subject property). In ordered the Pasig RTC to cease from hearing CC No. 73761 commenced by Eliseo.
2012, they went to the Registry of Deeds of Pasig City to obtain a copy of the TCT In so ruling, the CA held that Eliseo is not a stranger who can initiate an action
in preparation for a prospective sale of the subject property. To their surprise, the independent from the case where the attachment and execution sale were
title contained an annotation that the property covered thereby was the subject of ordered. Thus, the CA concluded that in opting to review the validity of the levy
an execution sale in Civil Case (CC) No. 03-0713 pending before Branch 134 of the and execution sale of the subject property pursuant to the judgment of the Makati
Regional Trial Court of Makati City (Makati RTC). RTC, the Pasig RTC acted without jurisdiction.

Petitioner immediately procured a copy of the records of CC No. 03-0713 and Eliseo moved for, but was denied, reconsideration by the appellate court. Hence,
found out that respondent Banco de Oro (BDO), formerly Equitable PCI Bank, filed he came to this Court via a Petition for Review on Certiorari under Rule 45 of the
a complaint for sum of money against Tancho Corporation, the principal debtor of Rules of Court, docketed as G.R. No. 218540.
loan obligations obtained from the bank. Likewise impleaded were several persons,
including Carmelita, who supposedly signed four (4) security agreements totaling On August 19, 2015, the Court issued a Resolution denying Eliseo's petition. Eliseo
P13,500,000 to guarantee the obligations of Tancho Corporation. begs to differ and takes exception from the said holding in his motion for
reconsideration dated October 5, 2015, which is presently for Resolution by this
It appears from the records of CC No. 03-0713 that on July 2, 2003, the Makati Court.
RTC issued an Order directing the service of summons to all the defendants at the
business address of Tancho Corporation provided by BDO: Fumakilla Compound, Meanwhile, on an ex-parte omnibus motion filed by BDO, the Makati RTC ordered
Amang Rodriguez Avenue, Brgy. Dela Paz, Pasig City (Fumakilla Compound). the issuance of a Writ of Possession and the issuance of a new TCT covering the
subject property in favor of the respondent bank.
Parenthetically, the records of CC No. 03-0713 show that respondent BDO already
foreclosed the Fumakilla Compound as early as August 21, 2000, following Tancho Arguing that the Makati RTC had not acquired jurisdiction over her person as the
Corporation's failure to pay its obligation, and BDO already consolidated its service of the summons and the other processes of the court was defective,
ownership of the property on November 16, 2001. Carmelita filed a Petition for Annulment of Judgment (With Urgent Prayer for
Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction)
Understandably, on July 31, 2003, the process server filed an Officer's Return with the CA, docketed as CA-G.R. SP No. 134664.
stating that summons remained unserved as the "defendants are no longer holding
office at [Fumakilla Compound]." Before the CA can act on the Petition for Annulment, the Borlongans found posted
on the subject property a Writ of Possession dated August 1, 2014 and a Notice to
On October 27, 2003, after the single attempt at personal service on Carmelita Vacate dated August 29, 2014.
and her co-defendants, BDO moved for leave to serve the summons by
publication. On October 28, 2003, the RTC granted the motion. In its Resolution dated November 12, 2014,5 the appellate court denied
Carmelita's prayer for the issuance of a Temporary Restraining Order (TRO) and/or
On August 10, 2004, BDO filed an ex-parte Motion for the Issuance of a Writ of Writ of Preliminary Injunction (WPI).
Attachment against the defendants, including Carmelita. During the hearing on the
motion, BDO submitted a copy of the title of the subject property. The Makati RTC Aggrieved, Carmelita interposed a motion for the reconsideration of the CA's
thereafter granted BDO's motion and a Writ of Attachment was issued against the November 12, 2014 Resolution. On March 23, 2015, however, the appellate court
defendants in CC No. 03-0713, effectively attaching the subject property on behalf denied her motion for reconsideration, holding that "upon the expiration of the
of BDO. redemption period, the right of the purchaser to the possession of the foreclosed
property becomes absolute."
On December 20, 2005, BDO filed an ex-parte motion praying, among others, that
the summons and the complaint be served against Carmelita at the subject Thus, on April 27, 2015, Carmelita filed a Petition for Review, docketed as G.R.
property. The Makati RTC granted the motion. On February 9, 2006, the Sheriff No. 217617, before this Court, ascribing to the appellate court the commission of
filed a return stating that no actual personal service was made as Carmelita "is no serious reversible errors. The Court denied the petition on June 22, 2015. Hence,
longer residing at the given address and the said address is for 'rent,' as per on September 1, 2015, Carmelita interposed a Motion for Reconsideration urging
information gathered from the security guard on duty." the Court to take a second hard look at the facts of the case and reconsider its
stance.
On May 30, 2006, however, BDO filed a manifestation stating that it had complied
with the October 28, 2003 Order of the Makati RTC having caused the publication Considering that both cases originated from the same facts and involved
of the alias summons and the complaint in People's Taliba on May 15, 2006. interrelated issues, on January 25, 2016, the Court resolved to consolidate G.R.
No. 218540 with G.R. No. 217617.
Thereafter, upon BDO's motion, the Makati RTC declared the defendants in CC No.
03-0713, including Carmelita, in default. BDO soon after proceeded to present its Issues
evidence ex-parte.
The question posed in G.R. No. 217617 is whether or not the CA erred in refusing
On November 29, 2007, the Makati RTC rendered a Decision holding the to issue a TRO and/or WPI stopping the consolidation of BDO's ownership over the
defendants in CC No. 03-0713 liable to pay BDO P32,543,856.33 plus 12% subject property. On the other hand, the issue in G.R. No. 218540 revolves around
interest per annum from the time of the filing of the complaint until fully paid and whether the Pasig RTC has jurisdiction to hear and decide a case filed by the non-
attorney's fees. The Makati RTC decision was published on June 9, 2008. debtor husband to annul the levy and execution sale of the subject property
ordered by the Makati RTC against his wife.
On August 20, 2008, the Makati RTC issued a Writ of Execution upon BDO's
motion. The Order states that in the event that the judgment obligors cannot pay
all or part of the obligation, the sheriff shall levy upon the properties of the Our Ruling
defendants to satisfy the award.
A reexamination of the antecedents and arguments in G.R. Nos. 217617 and
On October 28, 2008, the Makati RTC's sheriff filed a Report stating that he tried 218540 compels the reversal of the appellate court's resolutions in both cases.
to serve the Writ of Execution upon the defendants at Fumakilla Compound but he
was not able to do so since the defendants were no longer holding office thereat. G.R. No. 217617
The Sheriff also reported that, on the same day, he went to the subject property
to serve the execution but likewise failed in his attempt since Carmelita was no The Issuance of a TRO/WPI is not a prejudgment of the main case
longer residing at the said address.
On the propriety of CA's refusal to issue a TRO/WPI, it is worthy to note that
On November 11, 2008, BDO filed a Motion to Conduct Auction of the subject Section 3, Rule 58 of the Rules of Court provides the grounds for the issuance of a
property. The motion was granted by the Makati RTC on May 5, 2009 so that the preliminary injunction, viz:
subject property was sold to BDO, as the highest bidder, on October 6, 2009. Section 3. Grounds for issuance of preliminary injunction. — A preliminary
injunction may be granted when it is established:
Following the discovery of the sale of their property, Eliseo executed an affidavit of
adverse claim and, on January 21, 2013, filed a Complaint for Annulment of (a) That the applicant is entitled to the relief demanded, and the whole or part of
Surety Agreements, Notice of Levy on Attachment, Auction Sale and Other such relief consists in restraining the commission or continuance of the act or acts
Documents, docketed as CC No. 73761, with the Regional Trial Court of Pasig City complained of, or in requiring the performance of an act or acts either for a limited
(Pasig RTC).1 period or perpetually;

He alleged in his Complaint that the subject property is a family home that
belongs to the conjugal partnership of gains he established with his wife. He
further averred that the alleged surety agreements upon which the attachment of
the property was anchored were signed by his wife without his consent and did not
redound to benefit their family. Thus, he prayed that the surety agreements and
all other documents and processes, including the ensuing attachment, levy and
execution sale, based thereon be nullified.
BDO filed a Motion to Dismiss the Complaint, asserting that the Pasig RTC has no
jurisdiction to hear Eliseo's Complaint, the case was barred by res judicata given
the Decision and orders of the Makati RTC, and, finally, the Complaint failed to
state a cause of action.
In an Order dated May 31, 2013, the Pasig RTC dismissed the case citing lack of
jurisdiction. The RTC held that it could not pass upon matters already brought
(b) That the commission, continuance or non-performance of the act or acts
complained of during the litigation would probably work injustice to the applicant;
or
(c) That a party, court, agency or a person is doing, threatening, or is attempting
to do, or is procuring or suffering to be done some act or acts probably in violation
of the rights of the applicant respecting the subject of the action or proceeding,
and tending to render the judgment ineffectual.
From the foregoing provision, it is clear that a writ of preliminary injunction is
warranted where there is a showing that there exists a right to be protected and
that the acts against which the writ is to be directed violate an established right.
Otherwise stated, for a court to decide on the propriety of issuing a TRO and/or a
WPI, it must only inquire into the existence of two things: (1) a clear and
unmistakable right that must be protected; and (2) an urgent and paramount
necessity for the writ to prevent serious damage.

55

In Levi Strauss (Phils.) Inc. v. Vogue Traders Clothing Company,6 the Court
already explained that the issuance of a TRO is not conclusive of the outcome of
the case as it requires but a sampling of the evidence, viz:
Indeed, a writ of preliminary injunction is generally based solely on initial and
incomplete evidence adduced by the applicant (herein petitioner). The evidence
submitted during the hearing of the incident is not conclusive, for only a
"sampling" is needed to give the trial court an idea of the justification for
its issuance pending the decision of the case on the merits. As such, the
findings of fact and opinion of a court when issuing the writ of preliminary
injunction are interlocutory in nature. Moreover, the sole object of a
preliminary injunction is to preserve the status quo until the merits of the
case can be heard. Since Section 4 of Rule 58 of the Rules of Civil Procedure
gives the trial courts sufficient discretion to evaluate the conflicting claims in an
application for a provisional writ which often involves a factual determination, the
appellate courts generally will not interfere in the absence of manifest abuse of
such discretion. A writ of preliminary injunction would become a
prejudgment of a case only when it grants the main prayer in the
complaint or responsive pleading, so much so that there is nothing left for the
trial court to try except merely incidental matters, (emphasis supplied)
Notably, the primary prayer of the Petition for Annulment before the appellate
court is the declaration of the nullity of the proceedings in the RTC and its Decision
dated November 29, 2007; it is not merely confined to the prevention of the
issuance of the writ of possession and the consolidation of the ownership of the
subject property in BDO's name—the concerns of the prayer for the TRO and/or
WPI.
Indeed, the petitioner's prayer for the issuance of a TRO and/or WPI was intended
to preserve the status quo ante,7 and not to pre-empt the appellate court's
decision on the merits of her petition for annulment. Thus, it was a grievous error
on the part of the CA to deny her of this provisional remedy.
The appellate court's error is readily apparent given the stark existence of the
grounds for the issuance of a writ of preliminary injunction.
On the first ground, petitioner has a clear and unmistakable right that must be
protected. This right is not just her proprietary rights over the subject property but
her constitutionally protected right to due process before she can be
deprived of her property. No less than Section 1 of the Bill of Rights of the 1987
Constitution mandates that:
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 the laws, (emphasis
supplied)
In its classic formulation, due process means that any person with interest to the
thing in litigation must be notified and given an opportunity to defend that
interest.8 Thus, as the essence of due process lies in the reasonable opportunity to
be heard and to submit any evidence the defendant may have in support of her
defense, she must be properly served the summons of the court. In other
words, the service of summons is a vital and indispensable ingredient of due
process9 and compliance with the rules regarding the service of the summons is as
much an issue of due process as it is of jurisdiction.10 Unfortunately, as will be
discussed, it would seem that the Constitutional right of the petitioner to be
properly served the summons and be notified has been disregarded by the officers
of the trial court.
At this very juncture, the existence of the second ground for the issuance of a TRO
and/or WPI is self-evident. Without a TRO and/or WPI enjoining the respondent
bank from continuing in the possession and consolidating the ownership of the
subject property, petitioner's right to be afforded due process will
unceasingly be violated.
It need not be stressed that a continuous violation of constitutional rights is by
itself a grave and irreparable injury that this or any court cannot plausibly tolerate.
Without a doubt, the appellate court should have acted intrepidly and issued the
TRO and/or WPI posthaste to protect the constitutional rights of petitioner, as it is
duty-bound to do.
The performance of official duty was not regular
Regrettably, the appellate court fell short in the fulfillment of its mandate and
instead relied on the disputable presumption that "official duty has been regularly
performed." The Court cannot subscribe to the position taken by the appellate
court.
As a rule, summons should be personally served on a defendant.
When summons cannot be served personally within a reasonable period of time,
substituted service may be resorted to. Service of summons by publication can be
resorted to only if the defendant's "whereabouts are unknown and cannot be
ascertained by diligent inquiry." The relevant sections of Rule 14 of the Rules of
Court provide, thus:
SEC. 6. Service in person on defendant. - Whenever practicable, the summons
shall be served by handing a copy thereof to the defendant in person, or, if he
refuses to receive and sign for it, by tendering it to him.
SEC. 7. Substituted service. - If, for justifiable causes, the defendant cannot be
served within a reasonable time as provided in the preceding section, service may
be effected (a) by leaving copies of the summons at the defendant's residence
with some person of suitable age and discretion then residing therein, or (b) by
leaving the copies at defendant's office or regular place of business with some
competent person in charge thereof.
x x x x
SEC. 14. Service upon defendant whose identity or whereabouts are unknown. - In
any action where the defendant is designated as an unknown owner, or the like, or
whenever his whereabouts are unknown and cannot be ascertained by diligent
inquiry, service may, by leave of court, be effected upon him by publication in a
newspaper of general circulation and in such places and for such time as the court
may order.
It is, therefore, proper to state that the hierarchy and rules in the service of
summons are as follows:
(1) Personal service;
(2) Substituted service, if for justifiable causes the defendant cannot be served within a reasonable
time; and
(3) Service by publication, whenever the defendant's whereabouts are unknown and cannot be
ascertained by diligent inquiry.
Simply put, personal service of summons is the preferred mode. And, the rules on
the service of summons other than by personal service may be used only as
prescribed and only in the circumstances authorized by statute.
Thus, the impossibility of prompt personal service must be shown by
stating that efforts have been made to find the defendant personally and that such
efforts have failed before substituted service may be availed. 11 Furthermore, their
rules must be followed strictly, faithfully and fully as they are extraordinary in
character and considered in derogation of the usual method of service.
In Manotoc v. Court of Appeals,12 the Court enumerated and explained the
requirements to effect a valid service of summons other than by personal service,
viz:
(1) Impossibility of Prompt Personal Service
x x x x
Sheriffs are asked to discharge their duties on the service of summons with due
care, utmost diligence, and reasonable promptness and speed so as not to
prejudice the expeditious dispensation of justice. Thus, they are enjoined to try
their best efforts to accomplish personal service on defendant. On the other hand,
since the defendant is expected to try to avoid and evade service of summons, the
sheriff must be resourceful, persevering, canny, and diligent in serving the process
on the defendant. For substituted service of summons to be available, there
must be several attempts by the sheriff to personally serve the summons
within a reasonable period [of one month] which eventually resulted in
failure to prove impossibility of prompt service. "Several attempts" means
at least three (3) tries, preferably on at least two different dates. In
addition, the sheriff must cite why such efforts were unsuccessful. It is
only then that impossibility of service can be confirmed or accepted.
(2) Specific Details in the Return
The sheriff must describe in the Return of Summons the facts and
circumstances surrounding the attempted personal service. The efforts
made to find the defendant and the reasons behind the failure must be
clearly narrated in detail in the Return. The date and time of the attempts on
personal service, the inquiries made to locate the defendant, the name/s of the
occupants of the alleged residence or house of defendant and all other acts done,
though futile, to serve the summons on defendant must be specified in the Return
to justify substituted service. The form on Sheriffs Return of Summons on
Substituted Service prescribed in the Handbook for Sheriffs published by the
Philippine Judicial Academy requires a narration of the efforts made to find the
defendant personally and the fact of failure. Supreme Court Administrative Circular
No. 5 dated November 9, 1989 requires that "impossibility of prompt service
should be shown by stating the efforts made to find the defendant
personally and the failure of such efforts," which should be made in the
proof of service.
In the case now before Us, the summons was served on the petitioner
by publication. Yet, the circumstances surrounding the case do not justify the
resort.
Consider: in July 2003, the sheriff attempted to serve the summons on the
defendants, including petitioner Carmelita, at Fumakilla Compound, i.e., at the
property already foreclosed, acquired, and possessed by the respondent bank as
early as August 2001. Immediately after this single attempt at personal service
in July 2003, the respondent bank moved in October 2003 for leave to serve the
summons by publication (and not even substituted service), which motion the RTC
granted.
Clearly, there was no diligent effort made to find the petitioner and properly
serve her the summons before the service by publication was allowed. Neither was
it impossible to locate the residence of petitioner and her whereabouts.
It should be noted that the principal obligor in CC No. 03-0713 was Tancho
Corporation and petitioner Carmelita was impleaded only because she supposedly
signed a surety agreement as a director. As a juridical person, Tancho Corporation
is required to file mandatory corporate papers with the Securities and Exchange
Commission (SEC), such as its General Information Sheet (GIS). In 1997 and
2000, the GIS filed by Tancho Corporation with the SEC provided the names of its
directors and their addresses. One of these directors included petitioner Carmelita
with her address listed at 41 Chicago St., Quezon City. The GIS of Tancho
Corporation was readily available to the public including the RTC's process server
and respondent bank.
Patently, it cannot be plausibly argued that it was impossible to find the petitioner
and personally serve her with summons. In like manner, it can hardly be stated
that the process server regularly performed his duty.
The subject property was not foreclosed by the respondent bank; right of
BDO to the possession of the subject property is questionable
Still unwilling to issue the TRO and/or WPI fervently prayed for by petitioner, the
appellate court held that "upon the expiration of the redemption period, the right
of the purchaser to the possession of the foreclosed property becomes absolute."
This Court cannot affirm the appellate court's ruling.
At the outset, it must be pointed out that the subject property was never
mortgaged to, much less foreclosed by, the respondent bank. Thus, it was error
for the CA to refer to the subject property as "foreclosed property."
Rather, as disclosed by the records, the possession of the subject property was
acquired by BDO through attachment and later by execution sale. However, it is
presumptive to state that the right of BDO over the possession of the subject
property is now absolute considering that there is an action that questions the
validity of the bank's acquisition over the same property.
In Cometa v. Intermediate Appellate Court,13 we explained that the expiration
of the redemption period does not automatically vest in the auction purchaser an
absolutely possessory right over the property, viz:
From the foregoing discussion, it can be seen that the writ of possession may issue
in favor of a purchaser in an execution sale when the deed of conveyance has
been executed and delivered to him after the period of redemption has expired
and no redemption has been made by the judgment debtor.
A writ of possession is complementary to a writ of execution (see Vda. de Bogacki
v. Inserto, 111 SCRA 356, 363), and in an execution sale, it is a consequence of a
writ of execution, a public auction sale, and the fulfillment of several other
conditions for conveyance set by law. The issuance of a writ of possession is
dependent on the valid execution of the procedural stages preceding it. Any flaw
afflicting any of its stages, therefore, could affect the validity of its issuance.
In the case at bar, the validity of the levy and sale of the properties is
directly put in issue in another case by the petitioners. This Court finds it an
issue which requires pre-emptive resolution. For if the respondent acquired no
interest in the property by virtue of the levy and sale, then, he is not
entitled to its possession.
The respondent appellate court's emphasis on the failure of The petitioner to
redeem the properties within the period required by law is misplaced
because redemption, in this case, is inconsistent with the petitioner's claim
of invalidity of levy and sale. Redemption is an implied admission of the
regularity of the sale and would estop the petitioner from later impugning
its validity on that ground. (emphasis supplied)
Thus, even given the expiration of the redemption period, a TRO and/or WPI is still
obtainable and warranted where the validity of the acquisition of the possession is
afflicted by Constitutional and procedural infirmities.
G.R. No. 218540
Eliseo can file an independent action for the annulment of the attachment
56
of their conjugal property properly informed of the collection suit and his spouse had the opportunity to
question the attachment of their conjugal property before the court that issued the
As to the question of the Pasig RTC's jurisdiction to hear Eliseo's complaint, we levy on attachment, but simply refused to do so. Thus, to now deny Eliseo the
cannot subscribe to BDO's contention that Eliseo cannot file a separate and opportunity to question the attachment made by the RTC Makati in a separate and
independent action for the annulment of the levy on their conjugal property. independent action will be to, again, refuse him the due process of law before their
property is taken. As this Court is duty-bound to protect and enforce Constitutional
Section 16, Rule 39 of the Rules of Court allows third-party claimants of properties rights, this we cannot allow.
under execution to vindicate their claims to the property in a separate action with
another court. It states, thus: WHEREFORE, the petitions are GRANTED.
SECTION 16. Proceedings Where Property Claimed by Third Person. — If the
property levied on is claimed by any person other than the judgment obligor or his (1) The January 20, 2015 Decision and May 26, 2015 Resolution of the Court of
agent, and such person makes an affidavit of his title thereto or right to the Appeals in CA-G.R. SP No. 133994 are hereby REVERSED and SET ASIDE. The
possession thereof, stating the grounds of such right or title, and serves the same Regional Trial Court of Pasig, Branch 155 is ordered to continue with the
upon the officer making the levy and a copy thereof upon the judgment obligee, proceedings and decide Civil Case No. 73761 with reasonable dispatch.
the officer shall not be bound to keep the property, unless such judgment obligee,
on demand of the officer, files a bond approved by the court to indemnify the (2) The November 12, 2014 and March 23, 2015 Resolutions of the appellate court
third-party claimant in a sum not less than the value of the property levied on. In in CA-G.R. SP No. 134664 are REVERSED and SET ASIDE.
case of disagreement as to such value, the same shall be determined by the court
issuing the writ of execution. No claim for damages for the taking or keeping of Accordingly, let a Temporary Restraining Order (TRO) be issued enjoining,
the property may be enforced against the bond unless the action therefor is filed prohibiting, and preventing respondent Banco De Oro, its assigns, transferees,
within one hundred twenty (120) days from the date of the filing of the bond. successors, or any and all other persons acting on its behalf from possessing,
selling, transferring, encumbering or otherwise exercising acts of ownership over
The officer shall not be liable for damages for the taking or keeping of the the property subject of the controversy. Said TRO shall remain valid and effective
property, to any third-party claimant if such bond is filed. Nothing herein until such time as the rights and interests of the parties in CA-G.R. SP No. 134664
contained shall prevent such claimant or any third person from shall have been determined and finally resolved.
vindicating his claim to the property in a separate action, or prevent the
judgment obligee from claiming damages in the same or a separate action against SO ORDERED.
a third-party claimant who filed a frivolous or plainly spurious claim, (emphasis
supplied)
Clearly, the availability of the remedy provided under the foregoing provision
requires only that that the claim is a third-party or a "stranger" to the case. The
poser then is this: is the husband, who was not a party to the suit but whose
conjugal property was executed on account of the other spouse's debt, a
"stranger" to the suit? In Buado v. Court of Appeals,14 this Court had the
opportunity to clarify that, to resolve the issue, it must first be determined
whether the debt had redounded to the benefit of the conjugal partnership or not.
In the negative, the spouse is a stranger to the suit who can file an independent
separate action, distinct from the action in which the writ was issued. We held,
thus:
A third-party claim must be filed [by] a person other than the judgment debtor or
his agent. In other words, only a stranger to the case may file a third-party claim.

This leads us to the question: Is the husband, who was not a party to the suit but
whose conjugal property is being executed on account of the other spouse being
the judgment obligor, considered a "stranger?"

x x x x

Pursuant to Mariano however, it must further be settled whether the

obligation of the judgment debtor redounded to the benefit of the
conjugal partnership or not.

Petitioners argue that the obligation of the wife arising from her criminal liability is
chargeable to the conjugal partnership. We do not agree.

There is no dispute that contested property is conjugal in nature. Article 122 of the
Family Code explicitly provides that payment of personal debts contracted by the
husband or the wife before or during the marriage shall not be charged to the
conjugal partnership except insofar as they redounded to the benefit of the family.

x x x x

Parenthetically, by no stretch of imagination can it be concluded that the civil

obligation arising from the crime of slander committed by Erlinda redounded to the
benefit of the conjugal partnership.

To reiterate, conjugal property cannot be held liable for the personal

obligation contracted by one spouse, unless some advantage or benefit is
shown to have accrued to the conjugal partnership.

Hence, the filing of a separate action by respondent is proper and jurisdiction is

thus vested on Branch 21. (emphasis supplied)
In the present case, it is not disputed that the conjugal property was attached on
the basis of a surety agreement allegedly signed by Carmelita for and in behalf
of Tancho Corporation. In our 2004 Decision in Spouses Ching v. Court of
Appeals,15 we elucidated that there is no presumption that the conjugal
partnership is benefited when a spouse enters into a contract of surety,
holding thusly:
In this case, the private respondent failed to prove that the conjugal partnership of
the petitioners was benefited by the petitioner-husband's act of executing a
continuing guaranty and suretyship agreement with the private respondent for and
in behalf of PBMCI. The contract of loan was between the private respondent and
the PBMC1, solely for the benefit of the latter No presumption can be inferred
from the fact that when the petitioner-husband entered into an
accommodation agreement or a contract of surety, the conjugal
partnership would thereby be benefited. The private respondent was
burdened to establish that such benefit redounded to the conjugal
partnership.

It could be argued that the petitioner-husband was a member of the Board of

Directors of PBMCI and was one of its top twenty stockholders, and that the shares
of stocks of the petitioner-husband and his family would appreciate if the PBMCI
could be rehabilitated through the loans obtained; that the petitioner-husband's
career would be enhanced should PBMCI survive because of the infusion of fresh
capital. However, these are not the benefits contemplated by Article 161 of the
New Civil Code. The benefits must be those directly resulting from the loan.
They cannot merely be a by-product or a spin-off of the loan itself.

This is different from the situation where the husband borrows money or receives
services to be used for his own business or profession. In the Ayala case, we ruled
that it is such a contract that is one within the term "obligation for the benefit of
the conjugal partnership." Thus;

The Court held in the same case that the rulings of the Court in Cobb-Perez and G-
Tractors, Inc. are not controlling because the husband, in those cases, contracted
the obligation for his own business. In this case, the petitioner-husband acted
merely as a surety for the loan contracted by the PBMCI from the private
respondent, (emphasis supplied)
Furthermore, it is not apparent from the records of this case that BDO had
established the benefit to the conjugal partnership flowing from the surety
agreement allegedly signed by Carmelita. Thus, Eliseo's claim over the subject
property lodged with the RTC Pasig is proper, with the latter correctly exercising
jurisdiction thereon.

Besides, BDO's reliance on Spouses Ching v. Court of Appeals16 (2003) is

improper. In the present case, Eliseo and his wife discovered the attachment of
their conjugal property only after the finality of the decision by the RTC Makati.
There was, therefore, no opportunity for Eliseo to intervene in the case before the
RTC Makati which attached the conjugal property, as a motion to intervene can
only be filed "at any time before rendition of judgment by the trial court."17 This
spells the whale of difference between the case at bar and the earlier Spouses
Ching. Unlike in the present case, the debtor in the case cited by BDO was

57
G.R. No. 217872
ALLIANCE FOR THE FAMILY FOUNDATION, PHILIPPINES, INC. (ALFI) and ATTY. MARIA
CONCEPCION S. NOCHE, in her own behalf and as President of ALFI, JOSE S.
SANDEJAS, ROSIE B. LUISTRO, ELENITA S.A. SANDEJAS, EMILY R. LAWS, EILEEN Z.
ARANETA, SALV ACION C. MONTEIRO, MARIETTA C. GORREZ, ROLANDO M.
BAUTISTA, RUBEN T. UMALI, and MILDRED C. CASTOR , Petitioners
vs.
HON. JANETTE L. GARIN, Secretary-Designate of the Department of Health; NICOLAS
B.LUTERO III, Assistant Secretary of Health, Officer-in-Charge, Food and Drug
Administration; and MARIA LOURDES C. SANTIAGO, Officer in-Charge, Center for Drug
Regulation and Research, Respondents
x-----------------------x
G.R. No. 221866
MARIA CONCEPCION S. NOCHE, in her own behalf and as counsel of Petitioners, JOSE
S. SANDEJAS, ROSIE B. LUISTRO, ELENITA S.A. SANDEJAS, EMILY R. LAWS EILEEN
Z. ARANETA, SALVACION C. MONTEIRO MARIETTA C. GORREZ, ROLANDO M.
BAUTISTA, RUBEN T. UMALI, and MILDRED C. CASTOR, Petitioners
vs.
HON. JANETTE L. GARIN, Secretary-Designate of the Department of Health; NICOLAS
B. LUTERO III, Assistant Secretary of Health; NICOLAS B. LUTERO III, Assistant
Secretary of Health, Officer-in-Charge, Food and Drug Administration; and MARIA
LOURDES C. SANTIAGO, Officer-in-Charge, Center for Drug Regulation and
Research, Respondents.
RESOLUTION
MENDOZA, J.:
1
Subject of this resolution is the Omnibus Motion filed by the respondents, thru the Office of
the Solicitor General (OSG), seeking partial reconsideration of the August 24, 2016 Decision
(Decision),2 where the Court resolved the: [1] Petition for Certiorari, Prohibition, Mandamus
with Prayer for Issuance of a Temporary Restraining Order and/or Writ of Preliminary
Prohibitory and Mandatory Injunction (G.R. No. 217872); and the [2] Petition for Contempt of
Court (G.R. No. 221866), in the following manner:
WHEREFORE, the case docketed as G.R No. 217872 is hereby REMANDED to the Food and
Drugs Administration which is hereby ordered to observe the basic requirements of due
process by conducting a hearing, and allowing the petitioners to be heard, on the re-certified,
procured and administered contraceptive drugs and devices, including Implanon and lmplanon
NXT, and to determine whether they are abortifacients or non-abortifacients.
Pursuant to the expanded jurisdiction of this Court and its power to issue rules for the
protection and enforcement of constitutional rights, the Court hereby:
1. DIRECTS the Food and Drug Administration to formulate the rules of procedure in the
screening, evaluation and approval of all contraceptive drugs and devices that will be used
under Republic Act No. 10354. The rules of procedure shall contain the following minimum
requirements of due process: (a) publication, notice and hearing, (b) interested parties shall be
allowed to intervene, (c) the standard laid down in the Constitution, as adopted under Republic
Act No. 10354, as to what constitutes allowable contraceptives shall be strictly followed, that is,
those which do not harm or destroy the life of the unborn from conception/fertilization, (d) in
weighing the evidence, all reasonable doubts shall be resolved in favor of the protection and
preservation of the right to life of the unborn from conception/fertilization, and (e) the other
requirements of administrative due process, as summarized in Ang Tibay v. CIR, shall be
complied with.
2. DIRECTS the Department of Health in coordination with other concerned agencies to
formulate the rules and regulations or guidelines which will govern the purchase and
distribution/ dispensation of the products or supplies under Section 9 of Republic Act No.
10354 covered by the certification from the Food and Drug Administration that said product
and supply is made available on the condition that it will not be used as an abortifacient subject
to the following minimum due process requirements: (a) publication, notice and hearing, and
(b) interested parties shall be allowed to intervene. The rules and regulations or guidelines
shall provide sufficient detail as to the manner by which said product and supply shall be
strictly regulated in order that they will not be used as an abortifacient and in order to
sufficiently safeguard the right to life of the unborn.
3. DIRECTS the Department of Health to generate the complete and correct list of the
government's reproductive health programs and services under Republic Act No. 10354 which
will serve as the template for the complete and correct information standard and, hence, the
duty to inform under Section 23(a)(l) of Republic Act No. 10354. The Department of Health is
DIRECTED to distribute copies of this template to all health care service providers covered by
Republic Act No. 10354.
The respondents are hereby also ordered to amend the Implementing Rules and Regulations
to conform to the rulings and guidelines in G.R. No. 204819 and related cases.
The above foregoing directives notwithstanding, within 30 days from receipt of this disposition,
the Food and Drugs Administration should commence to conduct the necessary hearing
guided by the cardinal rights of the parties laid down in CIR v. Ang Tibay.
Pending the resolution of the controversy, the motion to lift the Temporary Restraining Order is
DENIED.
With respect to the contempt petition, docketed as G.R No. 221866, it is hereby DENIED for
lack of concrete basis.
SO ORDERED.3
Arguments of the Respondents
Part 1: Due Process need not be complied with as the questioned acts of the Food and Drug
Administration (FDA) were in the exercise of its Regulatory Powers
In the subject Omnibus Motion, the respondents argued that their actions should be sustained,
even if the petitioners were not afforded notice and hearing, because the contested acts of
registering, re-certifying, procuring, and administering contraceptive drugs and devices were all
done in the exercise of its regulatory power.4 They contended that considering that the
issuance of the certificate of product registration (CPR) by the FDA under Section 7.04,
Rule5 of the Implementing Rules and Regulations of Republic Act (R.A.) No. 10354 (RH-IRR)
did not involve the adjudication of the parties' opposing rights and liabilities through an
adversarial proceeding, the due process requirements of notice and hearing need not be
complied with.6
Stated differently, the respondents assert that as long as the act of the FDA is exercised
pursuant to its regulatory power, it need not comply with the due process requirements of
notice and hearing.
Corollary to this, the respondents wanted the Court to consider that the FDA had delineated its
functions among different persons and bodies in its organization. Thus, they asked the Court to
make a distinction between the "quasi-judicial powers" exercised by the Director-General
of the FDA under Section 2(b)7 of Article 3, Book I of the Implementing Rules and Regulations
8
(IRR) of R.A. No. 9711, and the "regulatory/administrative powers" exercised by the
FDA under Section 2(c )(1) 9 of the same. For the respondents, the distinction given in the
above-cited provisions was all but proof that the issuance of CPR did not require notice and
hearing.
After detailing the process by which the FDA's Center for Drug Regulation and
Research (CDRR) examined and tested the contraceptives for non-abortifacience, 10 the
respondents stressed that the Decision wreaked havoc on the organizational structure of the
FDA, whose myriad of functions had been carefully delineated in the IRR of R.A. No.
9711. 11 The respondents, thus, prayed for the lifting of the Temporary Restraining
Order (TR0). 12
Part 2: The requirements of due process need not be complied with as the elements of
procedural due process laid down in Ang Tibay v.CIR are not applicable
The respondents further claimed in their omnibus motion that the requirements of due process
need not be complied with because the standards of procedural due process laid down in Ang
Tibay v. CIR 13 were inapplicable considering that: a) substantial evidence could not be used
as a measure in determining whether a contraceptive drug or device was abortifacient; 14 b)
the courts had neither jurisdiction nor competence to review the findings of the FDA on the
non-abortifacient character of contraceptive drugs or devices; 15 c) the FDA was not bound by
the rules of admissibility and presentation of evidence under the Rules of Court; 16 and d) the
findings of the FDA could not be subject of the rule on res judicata and stare-decisis. 17
The respondents then insisted that Implanon and Implanon NXT were not abortifacients and
lamented that the continued injunction of the Court had hampered the efforts of the FDA to
provide for the reproductive health needs of Filipino women. For the respondents, to require
them to afford the parties like the petitioners an opportunity to question their findings would
cause inordinate delay in the distribution of the subject contraceptive drugs and devices which
would have a dire impact on the effective implementation of the RH Law.
The Court's Ruling
After an assiduous assessment of the arguments of the parties, the Court denies the Omnibus
Motion, but deems that a clarification on some points is in order.
Judicial Review
The powers of an administrative body are classified into two fundamental powers: quasi-
legislative and quasi-judicial. Quasi-legislative power, otherwise known as the power of
subordinate legislation, has been defined as the authority delegated by the lawmaking body to
the administrative body to adopt rules and regulations intended to carry out the provisions of
law and implement legislative policy. 18 "[A] legislative rule is in the nature of subordinate
legislation, designed to implement a primary legislation by providing the details thereof." 19 The
exercise by the administrative body of its quasi-legislative power through the promulgation of
regulations of general application does not, as a rule, require notice and hearing. The only
exception being where the Legislature itself requires it and mandates that the regulation shall
be based on certain facts as determined at an appropriate investigation. 20
Quasi-judicial power, on the other hand, is known as the power of the administrative agency
to determine questions of fact to which the legislative policy is to apply, in accordance with the
standards laid down by the law itself. 21 As it involves the exercise of discretion in determining
the rights and liabilities of the parties, the proper exercise of quasi-judicial power requires the
concurrence of two elements: one, jurisdiction which must be acquired by the administrative
body and two, the observance of the requirements of due process, that is, the right to
notice and hearing.22
On the argument that the certification proceedings were conducted by the FDA in the exercise
of its "regulatory powers" and, therefore, beyond judicial review, the Court holds that it has the
power to review all acts and decisions where there is a commission of grave abuse of
discretion. No less than the Constitution decrees that the Court must exercise its duty to
ensure that no grave abuse of discretion amounting to lack or excess of jurisdiction is
committed by any branch or instrumentality of the Government. Such is committed when there
is a violation of the constitutional mandate that "no person is deprived of life, liberty, and
property without due process of law." The Court's power cannot be curtailed by the FDA's
invocation of its regulatory power.
In so arguing, the respondents cited Atty. Carlo L. Cruz in his book, Philippine Administrative
Law.
Lest there be any inaccuracy, the relevant portions of the book cited by the respondents are
hereby quoted as follows:
B. The Quasi-Judicial Power
2. Determinative Powers
To better enable the administrative body to exercise its quasi judicial authority, it is also
vested with what is known as determinative powers and functions.
Professor Freund classifies them generally into the enabling powers and the directing powers.
The latter includes the dispensing, the examining, and the summary powers.
The enabling vowers are those that permit the doing of an act which the law undertakes
to regulate and which would be unlawful with government approval. The most common
example is the issuance of licenses to engage in a particular business or occupation, like the
operation of a liquor store or restaurant. x x x. 23 [Emphases and underscoring supplied]
From the above, two things are apparent: one, the "enabling powers" cover "regulatory
powers" as defined by the respondents; and two, they refer to a subcategory of a quasi-judicial
power which, as explained in the Decision, requires the compliance with the twin requirements
of notice and hearing. Nowhere from the above-quoted texts can it be inferred that the exercise
of "regulatory power" places an administrative agency beyond the reach of judicial review.
When there is grave abuse of discretion, such as denying a party of his constitutional right to
due process, the Court can come in and exercise its power of judicial review. It can review the
challenged acts, whether exercised by the FDA in its ministerial, quasi-judicial or regulatory
power. In the past, the Court exercised its power of judicial review over acts and decisions of
agencies exercising their regulatory powers, such as DPWH, 24 TRB, 25 NEA, 26 and the
SEC,27 among others. In Diocese of Bacolod v. Commission on Elections,28 the Court properly
exercised its power of judicial review over a Comelec resolution issued in the exercise of its
regulatory power.
Clearly, the argument of the FDA is flawed.
58
Petitioners were Denied their Right to Due Process
Due process of law has two aspects: substantive and procedural. In order that a particular act
may not be impugned as violative of the due process clause, there must be compliance with
both the substantive and the procedural requirements thereof. 29 Substantive due process
refers to the intrinsic validity of a law that interferes with the rights of a person to his
property.30 Procedural due process, on the other hand, means compliance with the procedures
or steps, even periods, prescribed by the statute, in conformity with the standard of fair play
31
and without arbitrariness on the part of those who are called upon to administer it.
The undisputed fact is that the petitioners were deprived of their constitutional right to due
process of law.
As expounded by the Court, what it found to be primarily deplorable is the failure of the
respondents to act upon, much less address, the various oppositions filed by the petitioners
against the product registration, recertification, procurement, and distribution of the questioned
contraceptive drugs and devices. Instead of addressing the petitioners' assertion that the
questioned contraceptive drugs and devices fell within the definition of an "abortifacient" under
Section 4(a) of the RH Law because of their "secondary mechanism of action which induces
abortion or destruction of the fetus inside the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's womb,"32 the respondents chose to ignore
them and proceeded with the registration, recertification, procurement, and distribution of
several contraceptive drugs and devices.
A cursory reading of the subject Omnibus Motion shows that the respondents proffer no cogent
explanation as to why they did not act on the petitioners' opposition. As stated by the Court in
the Decision, rather than provide concrete action to meet the petitioners' opposition, the
respondents simply relied on their challenge questioning the propriety of the subject petition on
technical and procedural grounds. 33 The Court, thus, finds the subject motion to be simply a
rehash of the earlier arguments presented before, with the respondents still harping on the
peculiarity of the FDA's functions to exempt it from compliance with the constitutional mandate
that "no person shall be deprived oflife, liberty and property without due process of law."
The law and the rules demand compliance with due process requirements
A reading of the various provisions, cited by the respondents in support of their assertion that
due process need not be complied with in the approval of contraceptive drugs or devices, all
the more reinforces the Court's conclusion that the FDA did fail to afford the petitioners a
genuine opportunity to be heard.
As outlined by the respondents themselves, the steps by which the FDA approves
contraceptive drugs or devices, demand compliance with the requirements of due process viz:
Step 1. Identify contraceptive products in the database. Create another database containing
the following details of contraceptive products: generic name, dosage strength and form, brand
name (if any), registration number, manufacturer, MAH, and the period of validity of the CPR.
Step 2. Identify contraceptive products which are classified as essential medicines in the
Philippine Drug Formulary.
Step 3. Retrieve the contraceptive product's file and the CPR duplicate of all registered
contraceptive products. Create a database of the contraceptive product's history, including its
initial, renewal, amendment, and/or variation applications.
Step 4. Conduct a preliminary review of the following:
a. general physiology of female reproductive system, including hormones involved, female
reproductive cycle, and conditions of the female reproductive system during pregnancy.
b. classification of hormonal contraceptives;
c. regulatory status of the products in benchmark countries; and
d. mechanism of action of hormonal contraceptives based on reputable journals, meta-
analyses, systemic reviews, evaluation of regulatory authorities in other countries, textbooks,
among others.
Step 5. Issue a notice to all concerned MAHs, requiring them to submit scientific
evidence that their product is non-abortifacient, as defined in the RH Law and Imbong.
Step 6. Post a list of contraceptive products which were applied for re-certification for
public comments in the FDA website.
Step 7. Evaluate contraceptive products for re-certification.
A. Part I (Review of Chemistry, Manufacture and Controls)
1. Unit Dose and Finished Product Formulation
2. Technical Finished Product Specifications
3. Certificate of Analysis
B. Part II (Evaluation of Whether the Contraceptive Product is Abortifacient)
1. Evaluation of the scientific evidence submitted by the applicant and the public.
2. Review and evaluation of extraneous evidence, e.g., scientific journals, meta-analyses, etc.
Step 8. Assess and review the documentary requirements submitted by the applicant.
Technical reviewers considered scientific evidence such as meta-analyses, systemic reviews,
national and clinical practice guidelines and recommendations of international medical
organizations submitted by the companies, organizations and individuals, to be part of the
review.34 [Emphases and Underlining supplied]
The Court notes that the above-outlined procedure is deficient insofar as it only allows public
comments to cases of re-certification. It fails to allow the public to comment in cases where a
reproductive drug or device is being subject to the certification process for the first time. This
is clearly in contravention of the mandate of the Court in lmbong that the IRR should be
amended to conform to it.
More importantly, the Court notes that Step 5 requires the FDA to issue a notice to all
concerned MAHs and require them to submit scientific evidence that their product is non-
abortifacient; and that Step 6 requires the posting of the list of contraceptive products which
were applied for re-certification for public comments in the FDA website.
If an opposition or adverse comment is filed on the ground that the drug or devise has
abortifacient features or violative of the RH Law, based on the pronouncements of the Court
in Im bong or any other law or rule, the FDA is duty-bound to take into account and consider
the basis of the opposition.
To conclude that product registration, recertification, procurement, and distribution of the
questioned contraceptive drugs and devices by the FDA in the exercise of its regulatory power
need not comply with the requirements of due process would render the issuance of notices to
concerned MAHs and the posting of a list of contraceptives for public comment a meaningless
exercise. Concerned MAHs and the public in general will be deprived of any significant
participation if what they will submit will not be considered.
Section 7.04, Rule 7 of the IRR of the RH Law (RH-IRR),35 relied upon by the respondents in
support of their claims, expressly allows the consideration of conflicting evidence, such
as that supplied by the petitioners in support of their opposition to the approval of certain
contraceptive drugs and devices. In fact, the said provision mandates that the FDA utilize the
"best evidence available" to ensure that no bortifacient is approved as a family planning drug
or device. It bears mentioning that the same provision even allows an independent evidence
review group (ERG) to ensure that evidence for or against the certification of a contraceptive
drug or device is duly considered.
Structure of the FDA
As earlier mentioned, the respondents argue that the Decision "wreaked havoc on the
organizational structure of the FDA, whose myriad of functions have been carefully delineated
under R.A. No. 9711 IRR."36 Citing Section 7.04, Rule 7 of the RH-IRR, the FDA insists that
the function it exercises in certifying family planning supplies is in the exercise of its regulatory
power, which cannot be the subject of judicial review, and that it is the Director-General of
the FDA who exercises quasi-judicial powers, citing Section 2(b) of Article 3, Book I of the
RH-IRR.37
The FDA wants the Court to consider that, as a body, it has a distinct and separate personality
from the Director-General, who exercises quasi-judicial power. The Court cannot
accommodate the position of the respondents. Section 6(a) of R.A. No. 3720, as amended by
Section 7 of R.A. No. 9711,38 provides that "(a) The FDA shall be headed by a director-
general with the rank of undersecretary, xxx." How can the head be separated from the body?
For the record, Section 4 of R.A. No. 3720, as amended by Section 5 of R.A. No. 9711, also
recognizes compliance with the requirements of due process, although the proceedings are
not adversarial. Thus:
Section 5. Section 4 of Republic Act No. 3720, as amended, is hereby further amended to read
as follows:
"SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called
the Food and Drug Administration (FDA) in the Department of Health (DOH). Said
Administration shall be under the Office of the Secretary and shall have the following functions,
powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and regulations
issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health products;
"(c) To analyze and inspect health products in connection with the implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health products
standards, and to recommend standards of identity, purity, safety, efficacy, quality and fill of
container;
"(e) To issue certificates of compliance with technical requirements to serve as basis for the
issuance of appropriate authorization and spot-check for compliance with regulations regarding
operation of manufacturers, importers, exporters, distributors, wholesalers, drug outlets, and
other establishments and facilities of health products, as determined by the FDA;
"xxx
"(h) To conduct appropriate tests on all applicable health products prior to the issuance of
appropriate authorizations to ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers,
retailers, consumers, and non-consumer users of health products to report to the FDA any
incident that reasonably indicates that said product has caused or contributed to the death,
serious illness or serious injury to a consumer, a patient, or any person;
"G) To issue cease and desist orders motu propio or upon verified com plaint for health
products, whether or not registered with the FDA Provided, That for registered health products,
the cease and desist order is valid for thirty (30) days and may be extended for sixty (60) days
only after due process has been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health product found
to have caused the death, serious illness or serious injury to a consumer or patient, or is found
to be imminently injurious, unsafe, dangerous, or grossly deceptive, and to require all
concerned to implement the risk management plan which is a requirement for the issuance of
the appropriate authorization;
"(l) To strengthen the post market surveillance system in monitoring health products as defined
in this Act and incidents of adverse events involving such products;
"(m) To develop and issue standards and appropriate authorizations that would cover
establishments, facilities and health products;
"(n) To conduct, supervise, monitor and audit research studies on health and safety issues of
health products undertaken by entities duly approved by the FDA;
"(o) To prescribe standards, guidelines, and regulations with respect to information,
advertisements and other marketing instruments and promotion, sponsorship, and other
marketing activities about the health products as covered in this Act;
"(p) To maintain bonded warehouses and/or establish the same, whenever necessary or
appropriate, as determined by the director-general for confiscated goods in strategic areas of
the country especially at major ports of entry; and
59
"(q) To exercise such other powers and perform such other functions as may be necessary to
carry out its duties and responsibilities under this Act. [Emphases supplied]
The Cardinal Rights of Parties in Administrative Proceedings as laid down in Ang Tibay v. CIR
In Ang Tibay v. CJR,39 the Court laid down the cardinal rights of parties in administrative
proceedings, as follows:
1) The right to a hearing, which includes the right to present one's case and submit evidence in
support thereof;
2) The tribunal must consider the evidence presented;
3) The decision must have something to support itself;
4) The evidence must be substantial;
5) The decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected;
6) The tribunal or body or any of its judges must act on its or his own independent
consideration of the law and facts of the controversy and not simply accept the views of a
subordinate in arriving at a decision; and
7) The board or body should, in all controversial questions, render its decision in such a
manner that the parties to the proceeding can know the various issues involved, and the
reason for the decision rendered. 40
In the Decision, the Court found that the FDA certified, procured and administered
contraceptive drugs and devices, without the observance of the basic tenets of due process,
that is, without notice and without public hearing. It appeared that, other than the notice inviting
stakeholders to apply for certification/recertification of their reproductive health products, there
was no showing that the respondents considered the opposition of the petitioners. Thus, the
Court wrote:
Rather than provide concrete evidence to meet the petitioners' opposition, the respondents
simply relied on their challenge questioning the propriety of the subject petition on technical
and procedural grounds. The Court notes that even the letters submitted by the petitioners to
the FDA and the DOH seeking information on the actions taken by the agencies regarding their
opposition were left unanswered as if they did not exist at all. The mere fact that the RH Law
was declared as not unconstitutional does not permit the respondents to run roughshod over
the constitutional rights, substantive and procedural, of the petitioners.
Indeed, although the law tasks the FDA as the primary agency to determine whether a
contraceptive drug or certain device has no abortifacient effects, its findings and conclusion
should be allowed to be questioned and those who oppose the same must be given a genuine
opportunity to be heard in their stance. After all, under Section 4(k) of R.A. No. 3720, as
amended by R.A. No. 9711, the FDA is mandated to order the ban, recall and/ or withdrawal of
any health product found to have caused death, serious illness or serious injury to a consumer
or patient, or found to be imminently injurious, unsafe, dangerous, or grossly deceptive, after
due process.
Due to the failure of the respondents to observe and comply with the basic requirements of
due process, the Court is of the view that the certifications/re-certifications and the distribution
of the questioned contraceptive drugs by the respondents should be struck down as violative
of the constitutional right to due process.
Verily, it is a cardinal precept that where there is a violation of basic constitutional rights, the
courts are ousted from their jurisdiction. The violation of a party's right to due process raises a
serious jurisdictional issue which cannot be glossed over or disregarded at will. Where the
denial of the fundamental right to due process is apparent, a decision rendered in disregard of
that right is void for lack of jurisdiction. This rule is equally true in quasi-judicial and
administrative proceedings, for the constitutional guarantee that no man shall be deprived of
life, liberty, or property without due process is unqualified by the type of proceedings (whether
judicial or administrative) where he stands to lose the same. 41
The Court stands by that finding and, accordingly, reiterates its order of remand of the case to
the FDA.
Procedure in the FDA; No Trial-Type Hearing
The Court is of the view that the FDA need not conduct a trial-type hearing. Indeed, due
process does not require the conduct of a trial-type hearing to satisfy its requirements. All that
the Constitution requires is that the FDA afford the people their right to due process of law and
decide on the applications submitted by MAHs after affording the oppositors like the petitioners
a genuine opportunity to present their science-based evidence. As earlier pointed out, this the
FDA failed to do. It simply ignored the opposition of the petitioners. In the case of Perez, et
al. v. Philippine Telegraph and Telephone Company, et al., 42 it was stated that:
A formal trial-type hearing is not even essential to due process. It is enough that the parties are
given a fair and reasonable opportunity to explain their respective sides of the controversy and
to present supporting evidence on which a fair decision can be based.
In the fairly recent case of Vivo v. Pagcor,43 the Court explained:
The observance of fairness in the conduct of any investigation is at the very heart of
procedural due process. The essence of due process is to be heard, and, as applied to
administrative proceedings, this means a fair and reasonable opportunity to explain one's side,
or an opportunity to seek a reconsideration of the action or ruling complained
of. Administrative due process cannot be fully equated with due process in its strict
judicial sense, for in the former a formal or trial-type hearing is not always necessary,
and technical rules of procedure are not strictly applied. Ledesma v. Court of
Appeals elaborates on the well-established meaning of due process in administrative
proceedings in this wise:
x x x Due process, as a constitutional precept, does not always and in all situations require a
trial-type proceeding. Due process is satisfied when a person is notified of the charge against
him and given an opportunity to explain or defend himself. In administrative proceedings, the
filing of charges and giving reasonable opportunity for the person so charged to answer the
accusations against him constitute the minimum requirements of due process. The essence of
due process is simply to be heard, or as applied to administrative proceedings, an opportunity
to explain one's side, or an opportunity to seek a reconsideration of the action or ruling
complained of. [Emphasis supplied; citations omitted]
Best Evidence Available
Section 5, Rule 133 of the Rules of Court provides:
Section 5. In all cases filed before administrative or quasi-judicialbodies, a fact may be
deemed established if it is supported by substantialevidence, or the amount of relevant
evidence which a reasonable mind might accept as adequate to justify a conclusion.
As applied to certification proceedings at the FDA, "substantial evidence" refers to the best
scientific evidence available,44 "including but not limited to: meta analyses, systematic
reviews, national clinical practice guidelines where available, and recommendations of
international medical organizations," needed to support a conclusion whether a contraceptive
drug or device is an abortifacient or not. The FDA need not be bound or limited by the
evidence adduced by the parties, but it can conduct its own search for related scientific data. It
can also consult other technical scientific experts known in their fields. It is also not bound by
the principle of stare decisis or res judicata, but may update itself and cancel
certifications motu proprio when new contrary scientific findings become available or there
arise manifest risks which have not been earlier predicted.
On the Competence of the Court to review the Findings of the FDA
The fact that any appeal to the courts will involve scientific matters will neither place the
actions of the respondents beyond the need to comply with the requirements of Ang Tibay nor
place the actions of the FDA in certification proceedings beyond judicial review.
It should be pointed out that nowhere in Batas Pambansa Blg. 129, as amended, are the
courts ousted of their jurisdiction whenever the issues involve questions of scientific nature. A
court is not considered incompetent either in reviewing the findings of the FDA simply because
it will be weighing the scientific evidence presented by both the FDA and its oppositors in
determining whether the contraceptive drug or device has complied with the requirements of
the law.
Although the FDA is not strictly bound by the technical rules on evidence, as stated in the
Rules of Court, or it cannot be bound by the principle of stare decisis or res judicata, it is not
excused from complying with the requirements of due process. To reiterate for emphasis, due
process does not require that the FDA conduct trial-type hearing to satisfy its requirements. All
that the Constitution requires is that the FDA afford the people their right to due process of law
and decide on the applications submitted by the MAHs after affording the oppositors, like the
petitioners, a genuine opportunity to present their sciencebased evidence.
The Appellate Procedure; Appeal to the Office of the President
Incidentally, Section 32 of R.A. No. 3720 and Section 9 of Executive Order (E.O.) No. 247
provide that any decision by the FDA would then be appealable to the Secretary of Health,
whose decision, in tum, may be appealed to the Office of the President (OP). Thus:
Sec. 32. The orders, rulings or decisions of the FDA shall be appealable to the Secretary
of Health. - An appeal shall be deemed perfected upon filing of the notice of appeal and
posting of the corresponding appeal bond.
An appeal shall not stay the decision appealed from unless an order from the Secretary of
Health is issued to stay the execution thereof.
Sec. 9. Appeals. - Decisions of the Secretary (DENR, DA, DOH or DOST) may be appealed
to the Office of the President. Recourse to the courts shall be allowed after exhaustion of all
administrative remedies.
In view thereof, the Court should modify that part of the Decision which allows direct appeal of
the FDA decision to the Court of Appeals.1âwphi1 As stated in the said decision, the FDA
decision need not be appealed to the Secretary of Health because she herself is a party
herein. Considering that the Executive
Secretary is not a party herein, the appeal should be to the OP as provided in Section 9.
On the Prayer to Lift the TRO
The respondents lament that the assailed decision undermines the functions of the FDA as the
specialized agency tasked to determine whether a contraceptive drug or device is safe,
effective and non-abortifacient. They also claim that the assailed decision requiring notice and
hearing would unduly delay the issuance of CPR thereby affecting public access to State-
funded contraceptives. Finally, in a veritable attempt to sow panic, the respondents claim that
the TRO issued by the Court would result in "a nationwide stockout of family planning supplies
in accredited public health facilities and the commercial market. "45
On this score, it should be clarified that the Decision simply enjoined the respondents from
registering, recertifying, procuring, and administering only those contraceptive drugs and
devices which were the subjects of the petitioners' opposition, specifically Implanon and
Implanon NXT. It never meant to enjoin the processing of the entire gamut of family planning
supplies that have been declared as unquestionably non-abortifacient. Moreover, the injunction
issued by the Court was only subject to the condition that the respondents afford the
petitioners a genuine opportunity to their right to due process.
As the Decision explained, the Court cannot lift the TRO prior to the summary hearing to be
conducted by the FDA. To do so would render the summary hearing an exercise in futility.
Specifically, the respondents would want the Court to consider their argument that Implanon
and Implanon NXT have no abortifacient effects. According to them, "the FDA tested these
devices for safety, efficacy, purity, quality, and non-abortiveness prior to the issuance of
certificates of registration and recertification, and after the promulgation of Imbong." 46 The
Court, however, cannot make such determination or pronouncement at this time. To
grant its prayer to lift the TRO would be premature and presumptuous. Any declaration by
the Court at this time would have no basis because the FDA, which has the mandate and
expertise on the matter, has to first resolve the controversy pending before its office.
This Court also explained in the Decision that the issuance of the TRO did not mean that the
FDA should stop fulfilling its mandate to test, analyze, scrutinize, and inspect other drugs and
devices. Thus:
Nothing in this resolution, however, should be construed as restraining or stopping the FDA
from carrying on its mandate and duty to test, analyze, scrutinize, and inspect drugs and
devices. What are being enjoined are the grant of certifications/re-certifications of
contraceptive drugs without affording the petitioners due process, and the distribution and
administration of the questioned contraceptive drugs and devices including Implanon and
Implanon NXT until they are determined to be safe and non-abortifacient.47
On Delay
The respondents claim that this judicial review of the administrative decision of the FDA in
certifying and recertifying drugs has caused much delay in the distribution of the subject drugs
with a dire impact on the effective implementation of the RH Law.
In this regard, the respondents have only themselves to blame. Instead of complying with the
orders of the Court as stated in the Decision to conduct a summary hearing, the respondents
have returned to this Court, asking the Court to reconsider the said decision claiming that it
has wreaked havoc on the organizational structure of the FDA.
60
Had the FDA immediately conducted a summary hearing, by this time it would have finished it
and resolved the opposition of the petitioners.1âwphi1 Note that there was already a finding by
the FDA, which was its basis in registering, certifying and recertifying the questioned drugs and
devices. The pharmaceutical companies or the MAHs need not present the same evidence it
earlier adduced to convince the FDA unless they want to present additional evidence to fortify
their positions. The only entities that would present evidence would be the petitioners to make
their point by proving with relevant scientific evidence that the contraceptives have
abortifacient effects. Thereafter, the FDA can resolve the controversy.

Indeed, in addition to guaranteeing that no person shall be deprived of life, liberty and property
without due process of law,48 the Constitution commands that "all persons shall have the right
to a speedy disposition of their cases before all judicial, quasi-judicial and administrative
bodies."49

WHEREFORE, the August 24, 2016 Decision is MODIFIED. Accordingly, the Food and Drug
Administration is ordered to consider the oppositions filed by the petitioners with respect to the
listed drugs, including Implanon and Implanon NXT, based on the standards of the
Reproductive Health Law, as construed in lmbong v. Ochoa, and to decide the case within
sixty (60) days from the date it will be deemed submitted for resolution.

After compliance with due process and upon promulgation of the decision of the Food and
Drug Administration, the Temporary Restraining Order would be deemed lifted if the
questioned drugs and devices are found not abortifacients.

After the final resolution by the Food and Drug Administration, any appeal should be to the
Office of the President pursuant to Section 9 of E.O. No. 247.

As ordered in the August 24, 2016 Decision, the Food and Drug Administration is directed to
amend the Implementing Rules and Regulations of R.A. No. 10354 so that it would be strictly
compliant with the mandates of the Court in lmbong v. Ochoa.

SO ORDERED.

61
G.R. No. 153675 April 19, 2007
GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by
the Philippine Department of Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUÑOZ, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC),
Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case
No. 99-95773. These are: (1) the Order dated December 20, 2001 allowing Juan Antonio
Muñoz, private respondent, to post bail; and (2) the Order dated April 10, 2002 denying the
motion to vacate the said Order of December 20, 2001 filed by the Government of Hong Kong
Special Administrative Region, represented by the Philippine Department of Justice (DOJ),
petitioner. The petition alleges that both Orders were issued by respondent judge with grave
abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in the
Constitution granting bail to a potential extraditee.
The facts are:
On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of
Hong Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It
took effect on June 20, 1997.
On July 1, 1997, Hong Kong reverted back to the People’s Republic of China and became the
Hong Kong Special Administrative Region.
Private respondent Muñoz was charged before the Hong Kong Court with three (3) counts of
the offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the
Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of
the offense of conspiracy to defraud, penalized by the common law of Hong Kong. On August
23, 1997 and October 25, 1999, warrants of arrest were issued against him. If convicted, he
faces a jail term of seven (7) to fourteen (14) years for each charge.
On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a
request for the provisional arrest of private respondent. The DOJ then forwarded the request to
the National Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch
19 an application for the provisional arrest of private respondent.
On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private
respondent. That same day, the NBI agents arrested and detained him.
On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari,
prohibition and mandamus with application for preliminary mandatory injunction and/or writ
of habeas corpus questioning the validity of the Order of Arrest.
On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of
Arrest void.
On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari,
docketed as G.R. No. 140520, praying that the Decision of the Court of Appeals be reversed.
On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and
sustaining the validity of the Order of Arrest against private respondent. The Decision became
final and executory on April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative
Region filed with the RTC of Manila a petition for the extradition of private respondent,
docketed as Civil Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo
Bernardo, Jr. For his part, private respondent filed, in the same case,- a petition for
bail which was opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition
for bail, holding that there is no Philippine law granting bail in extradition cases and that private
respondent is a high "flight risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No.
99-95733. It was then raffled off to Branch 8 presided by respondent judge.
On October 30, 2001, private respondent filed a motion for reconsideration of the Order
denying his application for bail. This was granted by respondent judge in an Order dated
December 20, 2001 allowing private respondent to post bail, thus:
In conclusion, this Court will not contribute to accused’s further erosion of civil liberties. The
petition for bail is granted subject to the following conditions:
1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that
he will appear and answer the issues raised in these proceedings and will at all times hold
himself amenable to orders and processes of this Court, will further appear for judgment. If
accused fails in this undertaking, the cash bond will be forfeited in favor of the government;
2. Accused must surrender his valid passport to this Court;
3. The Department of Justice is given immediate notice and discretion of filing its own motion
for hold departure order before this Court even in extradition proceeding; and
4. Accused is required to report to the government prosecutors handling this case or if they so
desire to the nearest office, at any time and day of the week; and if they further desire,
manifest before this Court to require that all the assets of accused, real and personal, be filed
with this Court soonest, with the condition that if the accused flees from his undertaking, said
assets be forfeited in favor of the government and that the corresponding lien/annotation be
noted therein accordingly.
SO ORDERED.
On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was
denied by respondent judge in his Order dated April 10, 2002.
Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of
discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail;
that there is nothing in the Constitution or statutory law providing that a potential extraditee has
a right to bail, the right being limited solely to criminal proceedings.
In his comment on the petition, private respondent maintained that the right to bail guaranteed
under the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh
process resulting in a prolonged deprivation of one’s liberty.
Section 13, Article III of the Constitution provides that the right to bail shall not be impaired,
thus:
Sec. 13. All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to bail shall not
be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail
shall not be required.
Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the
first time that this Court has an occasion to resolve the question of whether a prospective
extraditee may be granted bail.
In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge,
RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court,
speaking through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that
the constitutional provision on bail does not apply to extradition proceedings. It is "available
only in criminal proceedings," thus:
x x x. As suggested by the use of the word "conviction," the constitutional provision on bail
quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only when a
person has been arrested and detained for violation of Philippine criminal laws. It does not
apply to extradition proceedings because extradition courts do not render judgments of
conviction or acquittal.
Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of
every accused who should not be subjected to the loss of freedom as thereafter he would be
entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v.
Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It follows that the
constitutional provision on bail will not apply to a case like extradition, where the presumption
of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be impaired even when
the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the
constitutional right to bail is available only in criminal proceedings. It must be noted that the
suspension of the privilege of the writ of habeas corpus finds application "only to persons
judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec.
18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail
merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It
cannot be taken to mean that the right is available even in extradition proceedings that are not
criminal in nature.
At first glance, the above ruling applies squarely to private respondent’s case. However, this
Court cannot ignore the following trends in international law: (1) the growing importance of the
individual person in public international law who, in the 20th century, has gradually attained
global recognition; (2) the higher value now being given to human rights in the international
sphere; (3) the corresponding duty of countries to observe these universal human rights in
fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the
individual under our fundamental law, on one hand, and the law on extradition, on the other.
The modern trend in public international law is the primacy placed on the worth of the
individual person and the sanctity of human rights. Slowly, the recognition that the
individual person may properly be a subject of international law is now taking root. The
vulnerable doctrine that the subjects of international law are limited only to states was
dramatically eroded towards the second half of the past century. For one, the Nuremberg and
Tokyo trials after World War II resulted in the unprecedented spectacle of individual
defendants for acts characterized as violations of the laws of war, crimes against peace, and
crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have been
persecuted for war crimes and crimes against humanity committed in the former Yugoslavia.
These significant events show that the individual person is now a valid subject of international
law.
On a more positive note, also after World War II, both international organizations and states
gave recognition and importance to human rights. Thus, on December 10, 1948, the United
Nations General Assembly adopted the Universal Declaration of Human Rights in which the
right to life, liberty and all the other fundamental rights of every person were proclaimed. While
not a treaty, the principles contained in the said Declaration are now recognized as
customarily binding upon the members of the international community. Thus, in Mejoff v.
Director of Prisons,2 this Court, in granting bail to a prospective deportee, held that under
the Constitution,3 the principles set forth in that Declaration are part of the law of the land. In
1966, the UN General Assembly also adopted the International Covenant on Civil and Political
Rights which the Philippines signed and ratified. Fundamental among the rights enshrined
therein are the rights of every person to life, liberty, and due process.
The Philippines, along with the other members of the family of nations, committed to uphold
the fundamental human rights as well as value the worth and dignity of every person. This
commitment is enshrined in Section II, Article II of our Constitution which provides: "The State
values the dignity of every human person and guarantees full respect for human rights." The
Philippines, therefore, has the responsibility of protecting and promoting the right of every
person to liberty and due process, ensuring that those detained or arrested can participate in
the proceedings before a court, to enable it to decide without delay on the legality of the
detention and order their release if justified. In other words, the Philippine authorities are under
obligation to make available to every person under detention such remedies which safeguard
their fundamental right to liberty. These remedies include the right to be admitted to bail. While
this Court in Purganan limited the exercise of the right to bail to criminal proceedings, however,
in light of the various international treaties giving recognition and protection to human rights,
particularly the right to life and liberty, a reexamination of this Court’s ruling in Purganan is in
order.
First, we note that the exercise of the State’s power to deprive an individual of his
liberty is not necessarily limited to criminal proceedings. Respondents in
administrative proceedings, such as deportation and quarantine, 4 have likewise
been detained.
Second, to limit bail to criminal proceedings would be to close our eyes to our
jurisprudential history. Philippine jurisprudence has not limited the exercise of the
right to bail to criminal proceedings only. This Court has admitted to bail persons
who are not involved in criminal proceedings. In fact, bail has been allowed in
this jurisdiction to persons in detention during the pendency of administrative
proceedings, taking into cognizance the obligation of the Philippines under
international conventions to uphold human rights.
The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for
failure to secure the necessary certificate of registration was granted bail pending his appeal.
After noting that the prospective deportee had committed no crime, the Court opined that "To
refuse him bail is to treat him as a person who has committed the most serious crime known to
law;" and that while deportation is not a criminal proceeding, some of the machinery used "is
the machinery of criminal law." Thus, the provisions relating to bail was applied to deportation
proceedings.
62
In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled
that foreign nationals against whom no formal criminal charges have been filed may be
released on bail pending the finality of an order of deportation. As previously stated, the Court
in Mejoff relied upon the Universal declaration of Human Rights in sustaining the detainee’s
right to bail.

If bail can be granted in deportation cases, we see no justification why it should not also be
allowed in extradition cases. Likewise, considering that the Universal Declaration of Human
Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition
cases. After all, both are administrative proceedings where the innocence or guilt of the person
detained is not in issue.

Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed
in the light of the various treaty obligations of the Philippines concerning respect for the
promotion and protection of human rights. Under these treaties, the presumption lies in favor of
human liberty. Thus, the Philippines should see to it that the right to liberty of every individual
is not impaired.

Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines
"extradition" as "the removal of an accused from the Philippines with the object of placing him
at the disposal of foreign authorities to enable the requesting state or government to hold him
in connection with any criminal investigation directed against him or the execution of a penalty
imposed on him under the penal or criminal law of the requesting state or government."

Extradition has thus been characterized as the right of a foreign power, created by treaty, to
demand the surrender of one accused or convicted of a crime within its territorial jurisdiction,
and the correlative duty of the other state to surrender him to the demanding state. 8 It is not a
criminal proceeding.9 Even if the potential extraditee is a criminal, an extradition proceeding is
not by its nature criminal, for it is not punishment for a crime, even though such punishment
may follow extradition.10 It is sui generis, tracing its existence wholly to treaty obligations
between different nations.11 It is not a trial to determine the guilt or innocence of the
potential extraditee.12 Nor is it a full-blown civil action, but one that is merely administrative in
character.13 Its object is to prevent the escape of a person accused or convicted of a crime
and to secure his return to the state from which he fled, for the purpose of trial or
14
punishment.

But while extradition is not a criminal proceeding, it is characterized by the following: (a) it
entails a deprivation of liberty on the part of the potential extraditee and (b) the means
employed to attain the purpose of extradition is also "the machinery of criminal
law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which
mandates the "immediate arrest and temporary detention of the accused" if such "will best
serve the interest of justice." We further note that Section 20 allows the requesting state "in
case of urgency" to ask for the "provisional arrest of the accused, pending receipt of the
request for extradition;" and that release from provisional arrest "shall not prejudice re-arrest
and extradition of the accused if a request for extradition is received subsequently."

Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a

criminal process. A potential extraditee may be subjected to arrest, to a prolonged
restraint of liberty, and forced to transfer to the demanding state following the
proceedings. "Temporary detention" may be a necessary step in the process of extradition,
but the length of time of the detention should be reasonable.

Records show that private respondent was arrested on September 23, 1999, and remained
incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In
other words, he had been detained for over two (2) years without having been convicted
of any crime. By any standard, such an extended period of detention is a serious deprivation
of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which
prompted the extradition court to grant him bail.

While our extradition law does not provide for the grant of bail to an extraditee, however, there
is no provision prohibiting him or her from filing a motion for bail, a right to due process under
the Constitution.

The applicable standard of due process, however, should not be the same as that in criminal
proceedings. In the latter, the standard of due process is premised on the presumption of
innocence of the accused. As Purganan correctly points out, it is from this major premise that
the ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of
extradition proceedings, the premise behind the issuance of the arrest warrant and the
"temporary detention" is the possibility of flight of the potential extraditee. This is based on the
assumption that such extraditee is a fugitive from justice. 15 Given the foregoing, the
prospective extraditee thus bears the onus probandi of showing that he or she is not a flight
risk and should be granted bail.

The time-honored principle of pacta sunt servanda demands that the Philippines honor its
obligations under the Extradition Treaty it entered into with the Hong Kong Special
Administrative Region. Failure to comply with these obligations is a setback in our foreign
relations and defeats the purpose of extradition. However, it does not necessarily mean that in
keeping with its treaty obligations, the Philippines should diminish a potential extraditee’s rights
to life, liberty, and due process. More so, where these rights are guaranteed, not only by our
Constitution, but also by international conventions, to which the Philippines is a party. We
should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain
standard for the grant is satisfactorily met.

An extradition proceeding being sui generis, the standard of proof required in granting or
denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the
standard of proof of preponderance of evidence in civil cases. While administrative in
character, the standard of substantial evidence used in administrative cases cannot likewise
apply given the object of extradition law which is to prevent the prospective extraditee from
fleeing our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief
Justice Reynato S. Puno, proposed that a new standard which he termed "clear and
convincing evidence" should be used in granting bail in extradition cases. According to
him, this standard should be lower than proof beyond reasonable doubt but higher than
preponderance of evidence. The potential extraditee must prove by "clear and convincing
evidence" that he is not a flight risk and will abide with all the orders and processes of the
extradition court.

In this case, there is no showing that private respondent presented evidence to show that he is
not a flight risk. Consequently, this case should be remanded to the trial court to determine
whether private respondent may be granted bail on the basis of "clear and convincing
evidence."

WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to
determine whether private respondent is entitled to bail on the basis of "clear and convincing
evidence." If not, the trial court should order the cancellation of his bail bond and his immediate
detention; and thereafter, conduct the extradition proceedings with dispatch.

SO ORDERED.

63
G.R. No. 158693 November 17, 2004
JENNY M. AGABON and VIRGILIO C. AGABON, petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION (NLRC), RIVIERA HOME
IMPROVEMENTS, INC. and VICENTE ANGELES, respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review seeks to reverse the decision 1 of the Court of Appeals dated January
23, 2003, in CA-G.R. SP No. 63017, modifying the decision of National Labor Relations
Commission (NLRC) in NLRC-NCR Case No. 023442-00.
Private respondent Riviera Home Improvements, Inc. is engaged in the business of selling and
installing ornamental and construction materials. It employed petitioners Virgilio Agabon and
Jenny Agabon as gypsum board and cornice installers on January 2, 1992 2 until February 23,
1999 when they were dismissed for abandonment of work.
Petitioners then filed a complaint for illegal dismissal and payment of money claims 3 and on
December 28, 1999, the Labor Arbiter rendered a decision declaring the dismissals illegal and
ordered private respondent to pay the monetary claims. The dispositive portion of the decision
states:
WHEREFORE, premises considered, We find the termination of the complainants illegal.
Accordingly, respondent is hereby ordered to pay them their backwages up to November 29,
1999 in the sum of:
1. Jenny M. Agabon - P56, 231.93
2. Virgilio C. Agabon - 56, 231.93
and, in lieu of reinstatement to pay them their separation pay of one (1) month for every year of
service from date of hiring up to November 29, 1999.
Respondent is further ordered to pay the complainants their holiday pay and service incentive
leave pay for the years 1996, 1997 and 1998 as well as their premium pay for holidays and
rest days and Virgilio Agabon's 13th month pay differential amounting to TWO THOUSAND
ONE HUNDRED FIFTY (P2,150.00) Pesos, or the aggregate amount of ONE HUNDRED
TWENTY ONE THOUSAND SIX HUNDRED SEVENTY EIGHT & 93/100 (P121,678.93) Pesos
for Jenny Agabon, and ONE HUNDRED TWENTY THREE THOUSAND EIGHT HUNDRED
TWENTY EIGHT & 93/100 (P123,828.93) Pesos for Virgilio Agabon, as per attached
computation of Julieta C. Nicolas, OIC, Research and Computation Unit, NCR.
SO ORDERED.4
On appeal, the NLRC reversed the Labor Arbiter because it found that the petitioners had
abandoned their work, and were not entitled to backwages and separation pay. The other
money claims awarded by the Labor Arbiter were also denied for lack of evidence. 5
Upon denial of their motion for reconsideration, petitioners filed a petition for certiorari with the
Court of Appeals.
The Court of Appeals in turn ruled that the dismissal of the petitioners was not illegal because
they had abandoned their employment but ordered the payment of money claims. The
dispositive portion of the decision reads:
WHEREFORE, the decision of the National Labor Relations Commission is REVERSED only
insofar as it dismissed petitioner's money claims. Private respondents are ordered to pay
petitioners holiday pay for four (4) regular holidays in 1996, 1997, and 1998, as well as their
service incentive leave pay for said years, and to pay the balance of petitioner Virgilio
Agabon's 13th month pay for 1998 in the amount of P2,150.00.
SO ORDERED.6
Hence, this petition for review on the sole issue of whether petitioners were illegally
dismissed.7
Petitioners assert that they were dismissed because the private respondent refused to give
them assignments unless they agreed to work on a "pakyaw" basis when they reported for
duty on February 23, 1999. They did not agree on this arrangement because it would mean
losing benefits as Social Security System (SSS) members. Petitioners also claim that private
respondent did not comply with the twin requirements of notice and hearing. 8
Private respondent, on the other hand, maintained that petitioners were not dismissed but had
abandoned their work.9 In fact, private respondent sent two letters to the last known addresses
of the petitioners advising them to report for work. Private respondent's manager even talked
to petitioner Virgilio Agabon by telephone sometime in June 1999 to tell him about the new
assignment at Pacific Plaza Towers involving 40,000 square meters of cornice installation
work. However, petitioners did not report for work because they had subcontracted to perform
installation work for another company. Petitioners also demanded for an increase in their wage
to P280.00 per day. When this was not granted, petitioners stopped reporting for work and filed
the illegal dismissal case.10
It is well-settled that findings of fact of quasi-judicial agencies like the NLRC are accorded not
only respect but even finality if the findings are supported by substantial evidence. This is
especially so when such findings were affirmed by the Court of Appeals.11 However, if the
factual findings of the NLRC and the Labor Arbiter are conflicting, as in this case, the reviewing
court may delve into the records and examine for itself the questioned findings. 12
Accordingly, the Court of Appeals, after a careful review of the facts, ruled that petitioners'
dismissal was for a just cause. They had abandoned their employment and were already
working for another employer.
To dismiss an employee, the law requires not only the existence of a just and valid cause but
also enjoins the employer to give the employee the opportunity to be heard and to defend
himself.13 Article 282 of the Labor Code enumerates the just causes for termination by the
employer: (a) serious misconduct or willful disobedience by the employee of the lawful orders
of his employer or the latter's representative in connection with the employee's work; (b) gross
and habitual neglect by the employee of his duties; (c) fraud or willful breach by the employee
of the trust reposed in him by his employer or his duly authorized representative; (d)
commission of a crime or offense by the employee against the person of his employer or any
immediate member of his family or his duly authorized representative; and (e) other causes
analogous to the foregoing.
Abandonment is the deliberate and unjustified refusal of an employee to resume his
employment.14 It is a form of neglect of duty, hence, a just cause for termination of employment
by the employer.15 For a valid finding of abandonment, these two factors should be present: (1)
the failure to report for work or absence without valid or justifiable reason; and (2) a clear
intention to sever employer-employee relationship, with the second as the more determinative
factor which is manifested by overt acts from which it may be deduced that the employees has
no more intention to work. The intent to discontinue the employment must be shown by clear
proof that it was deliberate and unjustified. 16
In February 1999, petitioners were frequently absent having subcontracted for an installation
work for another company. Subcontracting for another company clearly showed the intention to
sever the employer-employee relationship with private respondent. This was not the first time
they did this. In January 1996, they did not report for work because they were working for
another company. Private respondent at that time warned petitioners that they would be
dismissed if this happened again. Petitioners disregarded the warning and exhibited a clear
intention to sever their employer-employee relationship. The record of an employee is a
relevant consideration in determining the penalty that should be meted out to him. 17
In Sandoval Shipyard v. Clave,18 we held that an employee who deliberately absented from
work without leave or permission from his employer, for the purpose of looking for a job
elsewhere, is considered to have abandoned his job. We should apply that rule with more
reason here where petitioners were absent because they were already working in another
company.
The law imposes many obligations on the employer such as providing just compensation to
workers, observance of the procedural requirements of notice and hearing in the termination of
employment. On the other hand, the law also recognizes the right of the employer to expect
from its workers not only good performance, adequate work and diligence, but also good
conduct19 and loyalty. The employer may not be compelled to continue to employ such persons
whose continuance in the service will patently be inimical to his interests. 20
After establishing that the terminations were for a just and valid cause, we now determine if the
procedures for dismissal were observed.
The procedure for terminating an employee is found in Book VI, Rule I, Section 2(d) of
the Omnibus Rules Implementing the Labor Code:
Standards of due process: requirements of notice. – In all cases of termination of employment,
the following standards of due process shall be substantially observed:
I. For termination of employment based on just causes as defined in Article 282 of the Code:
(a) A written notice served on the employee specifying the ground or grounds for termination,
and giving to said employee reasonable opportunity within which to explain his side;
(b) A hearing or conference during which the employee concerned, with the assistance of
counsel if the employee so desires, is given opportunity to respond to the charge, present his
evidence or rebut the evidence presented against him; and
(c) A written notice of termination served on the employee indicating that upon due
consideration of all the circumstances, grounds have been established to justify his
termination.
In case of termination, the foregoing notices shall be served on the employee's last known
address.
Dismissals based on just causes contemplate acts or omissions attributable to the employee
while dismissals based on authorized causes involve grounds under the Labor Code which
allow the employer to terminate employees. A termination for an authorized cause requires
payment of separation pay. When the termination of employment is declared illegal,
reinstatement and full backwages are mandated under Article 279. If reinstatement is no
longer possible where the dismissal was unjust, separation pay may be granted.
Procedurally, (1) if the dismissal is based on a just cause under Article 282, the employer must
give the employee two written notices and a hearing or opportunity to be heard if requested by
the employee before terminating the employment: a notice specifying the grounds for which
dismissal is sought a hearing or an opportunity to be heard and after hearing or opportunity to
be heard, a notice of the decision to dismiss; and (2) if the dismissal is based on authorized
causes under Articles 283 and 284, the employer must give the employee and the Department
of Labor and Employment written notices 30 days prior to the effectivity of his separation.
From the foregoing rules four possible situations may be derived: (1) the dismissal is for a just
cause under Article 282 of the Labor Code, for an authorized cause under Article 283, or for
health reasons under Article 284, and due process was observed; (2) the dismissal is without
just or authorized cause but due process was observed; (3) the dismissal is without just or
authorized cause and there was no due process; and (4) the dismissal is for just or authorized
cause but due process was not observed.
In the first situation, the dismissal is undoubtedly valid and the employer will not suffer any
liability.
In the second and third situations where the dismissals are illegal, Article 279 mandates that
the employee is entitled to reinstatement without loss of seniority rights and other privileges
and full backwages, inclusive of allowances, and other benefits or their monetary equivalent
computed from the time the compensation was not paid up to the time of actual reinstatement.
In the fourth situation, the dismissal should be upheld. While the procedural infirmity cannot be
cured, it should not invalidate the dismissal. However, the employer should be held liable for
non-compliance with the procedural requirements of due process.
The present case squarely falls under the fourth situation. The dismissal should be upheld
because it was established that the petitioners abandoned their jobs to work for another
company. Private respondent, however, did not follow the notice requirements and instead
argued that sending notices to the last known addresses would have been useless because
they did not reside there anymore. Unfortunately for the private respondent, this is not a valid
excuse because the law mandates the twin notice requirements to the employee's last known
address.21 Thus, it should be held liable for non-compliance with the procedural requirements
of due process.
A review and re-examination of the relevant legal principles is appropriate and timely to clarify
the various rulings on employment termination in the light of Serrano v. National Labor
Relations Commission.22
Prior to 1989, the rule was that a dismissal or termination is illegal if the employee was not
given any notice. In the 1989 case of Wenphil Corp. v. National Labor Relations
Commission,23 we reversed this long-standing rule and held that the dismissed employee,
although not given any notice and hearing, was not entitled to reinstatement and backwages
because the dismissal was for grave misconduct and insubordination, a just ground for
termination under Article 282. The employee had a violent temper and caused trouble during
office hours, defying superiors who tried to pacify him. We concluded that reinstating the
employee and awarding backwages "may encourage him to do even worse and will render a
64
mockery of the rules of discipline that employees are required to observe."24 We further held
that:
Under the circumstances, the dismissal of the private respondent for just cause should be
maintained. He has no right to return to his former employment.
However, the petitioner must nevertheless be held to account for failure to extend to private
respondent his right to an investigation before causing his dismissal. The rule is explicit as
above discussed. The dismissal of an employee must be for just or authorized cause and after
due process. Petitioner committed an infraction of the second requirement. Thus, it must be
imposed a sanction for its failure to give a formal notice and conduct an investigation as
required by law before dismissing petitioner from employment. Considering the circumstances
of this case petitioner must indemnify the private respondent the amount of P1,000.00. The
measure of this award depends on the facts of each case and the gravity of the omission
committed by the employer.25
The rule thus evolved: where the employer had a valid reason to dismiss an employee but did
not follow the due process requirement, the dismissal may be upheld but the employer will be
penalized to pay an indemnity to the employee. This became known as the Wenphil or Belated
Due Process Rule.
On January 27, 2000, in Serrano, the rule on the extent of the sanction was changed. We held
that the violation by the employer of the notice requirement in termination for just or authorized
causes was not a denial of due process that will nullify the termination. However, the dismissal
is ineffectual and the employer must pay full backwages from the time of termination until it is
judicially declared that the dismissal was for a just or authorized cause.
The rationale for the re-examination of the Wenphil doctrine in Serrano was the significant
number of cases involving dismissals without requisite notices. We concluded that the
imposition of penalty by way of damages for violation of the notice requirement was not serving
as a deterrent. Hence, we now required payment of full backwages from the time of dismissal
until the time the Court finds the dismissal was for a just or authorized cause.
Serrano was confronting the practice of employers to "dismiss now and pay later" by imposing
full backwages.
We believe, however, that the ruling in Serrano did not consider the full meaning of Article 279
of the Labor Code which states:
ART. 279. Security of Tenure. – In cases of regular employment, the employer shall not
terminate the services of an employee except for a just cause or when authorized by this Title.
An employee who is unjustly dismissed from work shall be entitled to reinstatement without
loss of seniority rights and other privileges and to his full backwages, inclusive of allowances,
and to his other benefits or their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual reinstatement.
This means that the termination is illegal only if it is not for any of the justified or authorized
causes provided by law. Payment of backwages and other benefits, including reinstatement, is
justified only if the employee was unjustly dismissed.
The fact that the Serrano ruling can cause unfairness and injustice which elicited strong
dissent has prompted us to revisit the doctrine.
To be sure, the Due Process Clause in Article III, Section 1 of the Constitution embodies a
system of rights based on moral principles so deeply imbedded in the traditions and feelings of
our people as to be deemed fundamental to a civilized society as conceived by our entire
history. Due process is that which comports with the deepest notions of what is fair and right
26
and just. It is a constitutional restraint on the legislative as well as on the executive and
judicial powers of the government provided by the Bill of Rights.
Due process under the Labor Code, like Constitutional due process, has two aspects:
substantive, i.e., the valid and authorized causes of employment termination under the Labor
Code; and procedural, i.e., the manner of dismissal. Procedural due process requirements for
dismissal are found in the Implementing Rules of P.D. 442, as amended, otherwise known as
the Labor Code of the Philippines in Book VI, Rule I, Sec. 2, as amended by Department Order
Nos. 9 and 10.27 Breaches of these due process requirements violate the Labor Code.
Therefore statutory due process should be differentiated from failure to comply
with constitutional due process.
Constitutional due process protects the individual from the government and assures him of his
rights in criminal, civil or administrative proceedings; while statutory due process found in the
Labor Code and Implementing Rules protects employees from being unjustly terminated
without just cause after notice and hearing.
In Sebuguero v. National Labor Relations Commission,28 the dismissal was for a just and valid
cause but the employee was not accorded due process. The dismissal was upheld by the
Court but the employer was sanctioned. The sanction should be in the nature of
indemnification or penalty, and depends on the facts of each case and the gravity of the
omission committed by the employer.
In Nath v. National Labor Relations Commission,29 it was ruled that even if the employee was
not given due process, the failure did not operate to eradicate the just causes for dismissal.
The dismissal being for just cause, albeit without due process, did not entitle the employee to
reinstatement, backwages, damages and attorney's fees.
Mr. Justice Jose C. Vitug, in his separate opinion in MGG Marine Services, Inc. v. National
Labor Relations Commission,30 which opinion he reiterated in Serrano, stated:
C. Where there is just cause for dismissal but due process has not been properly observed by
an employer, it would not be right to order either the reinstatement of the dismissed employee
or the payment of backwages to him. In failing, however, to comply with the procedure
prescribed by law in terminating the services of the employee, the employer must be deemed
to have opted or, in any case, should be made liable, for the payment of separation pay. It
might be pointed out that the notice to be given and the hearing to be conducted generally
constitute the two-part due process requirement of law to be accorded to the employee by the
employer. Nevertheless, peculiar circumstances might obtain in certain situations where to
undertake the above steps would be no more than a useless formality and where, accordingly,
it would not be imprudent to apply the res ipsa loquitur rule and award, in lieu of separation
pay, nominal damages to the employee. x x x. 31
After carefully analyzing the consequences of the divergent doctrines in the law on
employment termination, we believe that in cases involving dismissals for cause but without
observance of the twin requirements of notice and hearing, the better rule is to abandon the
Serrano doctrine and to follow Wenphil by holding that the dismissal was for just cause but
imposing sanctions on the employer. Such sanctions, however, must be stiffer than that
imposed in Wenphil. By doing so, this Court would be able to achieve a fair result by
dispensing justice not just to employees, but to employers as well.
The unfairness of declaring illegal or ineffectual dismissals for valid or authorized causes but
not complying with statutory due process may have far-reaching consequences.
This would encourage frivolous suits, where even the most notorious violators of company
policy are rewarded by invoking due process. This also creates absurd situations where there
is a just or authorized cause for dismissal but a procedural infirmity invalidates the termination.
Let us take for example a case where the employee is caught stealing or threatens the lives of
his co-employees or has become a criminal, who has fled and cannot be found, or where
serious business losses demand that operations be ceased in less than a month. Invalidating
the dismissal would not serve public interest. It could also discourage investments that can
generate employment in the local economy.
The constitutional policy to provide full protection to labor is not meant to be a sword to
oppress employers. The commitment of this Court to the cause of labor does not prevent us
from sustaining the employer when it is in the right, as in this case.32 Certainly, an employer
should not be compelled to pay employees for work not actually performed and in fact
abandoned.
The employer should not be compelled to continue employing a person who is admittedly guilty
of misfeasance or malfeasance and whose continued employment is patently inimical to the
employer. The law protecting the rights of the laborer authorizes neither oppression nor self-
destruction of the employer.33
It must be stressed that in the present case, the petitioners committed a grave offense, i.e.,
abandonment, which, if the requirements of due process were complied with, would
undoubtedly result in a valid dismissal.
An employee who is clearly guilty of conduct violative of Article 282 should not be protected by
the Social Justice Clause of the Constitution. Social justice, as the term suggests, should be
used only to correct an injustice. As the eminent Justice Jose P. Laurel observed, social justice
must be founded on the recognition of the necessity of interdependence among diverse units
of a society and of the protection that should be equally and evenly extended to all groups as a
combined force in our social and economic life, consistent with the fundamental and
paramount objective of the state of promoting the health, comfort, and quiet of all persons, and
of bringing about "the greatest good to the greatest number." 34
This is not to say that the Court was wrong when it ruled the way it did in Wenphil, Serrano and
related cases. Social justice is not based on rigid formulas set in stone. It has to allow for
changing times and circumstances.
Justice Isagani Cruz strongly asserts the need to apply a balanced approach to labor-
management relations and dispense justice with an even hand in every case:
We have repeatedly stressed that social justice – or any justice for that matter – is for the
deserving, whether he be a millionaire in his mansion or a pauper in his hovel. It is true that, in
case of reasonable doubt, we are to tilt the balance in favor of the poor to whom the
Constitution fittingly extends its sympathy and compassion. But never is it justified to give
preference to the poor simply because they are poor, or reject the rich simply because they are
rich, for justice must always be served for the poor and the rich alike, according to the mandate
of the law.35
Justice in every case should only be for the deserving party. It should not be presumed that
every case of illegal dismissal would automatically be decided in favor of labor, as
management has rights that should be fully respected and enforced by this Court. As
interdependent and indispensable partners in nation-building, labor and management need
each other to foster productivity and economic growth; hence, the need to weigh and balance
the rights and welfare of both the employee and employer.
Where the dismissal is for a just cause, as in the instant case, the lack of statutory due process
should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer
should indemnify the employee for the violation of his statutory rights, as ruled in Reta v.
National Labor Relations Commission.36 The indemnity to be imposed should be stiffer to
discourage the abhorrent practice of "dismiss now, pay later," which we sought to deter in
the Serrano ruling. The sanction should be in the nature of indemnification or penalty and
should depend on the facts of each case, taking into special consideration the gravity of the
due process violation of the employer.
Under the Civil Code, nominal damages is adjudicated in order that a right of the plaintiff,
which has been violated or invaded by the defendant, may be vindicated or recognized, and
not for the purpose of indemnifying the plaintiff for any loss suffered by him. 37
As enunciated by this Court in Viernes v. National Labor Relations Commissions,38 an
employer is liable to pay indemnity in the form of nominal damages to an employee who has
been dismissed if, in effecting such dismissal, the employer fails to comply with the
requirements of due process. The Court, after considering the circumstances therein, fixed the
indemnity at P2,590.50, which was equivalent to the employee's one month salary. This
indemnity is intended not to penalize the employer but to vindicate or recognize the employee's
right to statutory due process which was violated by the employer. 39
The violation of the petitioners' right to statutory due process by the private respondent
warrants the payment of indemnity in the form of nominal damages. The amount of such
damages is addressed to the sound discretion of the court, taking into account the relevant
circumstances.40 Considering the prevailing circumstances in the case at bar, we deem it
proper to fix it at P30,000.00. We believe this form of damages would serve to deter employers
from future violations of the statutory due process rights of employees. At the very least, it
provides a vindication or recognition of this fundamental right granted to the latter under the
Labor Code and its Implementing Rules.
Private respondent claims that the Court of Appeals erred in holding that it failed to pay
petitioners' holiday pay, service incentive leave pay and 13th month pay.
We are not persuaded.
We affirm the ruling of the appellate court on petitioners' money claims. Private respondent is
liable for petitioners' holiday pay, service incentive leave pay and 13th month pay without
deductions.
As a general rule, one who pleads payment has the burden of proving it. Even where the
employee must allege non-payment, the general rule is that the burden rests on the employer
to prove payment, rather than on the employee to prove non-payment. The reason for the rule
is that the pertinent personnel files, payrolls, records, remittances and other similar documents
– which will show that overtime, differentials, service incentive leave and other claims of
workers have been paid – are not in the possession of the worker but in the custody and
absolute control of the employer.41
In the case at bar, if private respondent indeed paid petitioners' holiday pay and service
incentive leave pay, it could have easily presented documentary proofs of such monetary
benefits to disprove the claims of the petitioners. But it did not, except with respect to the 13th
month pay wherein it presented cash vouchers showing payments of the benefit in the years
disputed.42 Allegations by private respondent that it does not operate during holidays and that it
allows its employees 10 days leave with pay, other than being self-serving, do not constitute
proof of payment. Consequently, it failed to discharge the onus probandi thereby making it
liable for such claims to the petitioners.
Anent the deduction of SSS loan and the value of the shoes from petitioner Virgilio Agabon's
13th month pay, we find the same to be unauthorized. The evident intention of Presidential
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Decree No. 851 is to grant an additional income in the form of the 13th month pay to
employees not already receiving the same 43 so as "to further protect the level of real wages
from the ravages of world-wide inflation."44 Clearly, as additional income, the 13th month pay is
included in the definition of wage under Article 97(f) of the Labor Code, to wit:

(f) "Wage" paid to any employee shall mean the remuneration or earnings, however
designated, capable of being expressed in terms of money whether fixed or ascertained on a
time, task, piece , or commission basis, or other method of calculating the same, which is
payable by an employer to an employee under a written or unwritten contract of employment
for work done or to be done, or for services rendered or to be rendered and includes the fair
and reasonable value, as determined by the Secretary of Labor, of board, lodging, or other
facilities customarily furnished by the employer to the employee…"

from which an employer is prohibited under Article 11345 of the same Code from making any
deductions without the employee's knowledge and consent. In the instant case, private
respondent failed to show that the deduction of the SSS loan and the value of the shoes from
petitioner Virgilio Agabon's 13th month pay was authorized by the latter. The lack of authority
to deduct is further bolstered by the fact that petitioner Virgilio Agabon included the same as
one of his money claims against private respondent.

The Court of Appeals properly reinstated the monetary claims awarded by the Labor Arbiter
ordering the private respondent to pay each of the petitioners holiday pay for four regular
holidays from 1996 to 1998, in the amount of P6,520.00, service incentive leave pay for the
same period in the amount of P3,255.00 and the balance of Virgilio Agabon's thirteenth month
pay for 1998 in the amount of P2,150.00.

WHEREFORE, in view of the foregoing, the petition is DENIED. The decision of the Court of
Appeals dated January 23, 2003, in CA-G.R. SP No. 63017, finding that petitioners' Jenny and
Virgilio Agabon abandoned their work, and ordering private respondent to pay each of the
petitioners holiday pay for four regular holidays from 1996 to 1998, in the amount of P6,520.00,
service incentive leave pay for the same period in the amount of P3,255.00 and the balance of
Virgilio Agabon's thirteenth month pay for 1998 in the amount of P2,150.00 is AFFIRMED with
the MODIFICATION that private respondent Riviera Home Improvements, Inc. is
further ORDERED to pay each of the petitioners the amount of P30,000.00 as nominal
damages for non-compliance with statutory due process.

No costs.

SO ORDERED.

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