1
G.R. No. 187298 July 03, 2012
JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH. YUSOP ISMI,
JULHAJAN AWADI, and SPO1 SATTAL H. JADJULI, Petitioners,
vs.
GOV. ABDUSAKUR M. TAN, in his capacity as Governor of Sulu; GEN.
JUANCHO SABAN, COL. EUGENIO CLEMEN PN, P/SUPT. JULASIRIM KASIM
and P/SUPT. BIENVENIDO G. LATAG, in their capacity as officers of the Phil.
Marines and Phil. National Police, respectively, Respondents.
On 15 January 2009, three members from the International Committee of the Red
Cross (ICRC) were kidnapped in the vicinity of the Provincial Capitol in Patikul,
Sulu.1 Andres Notter, a Swiss national and head of the ICRC in Zamboanga City,
Eugenio Vagni, an Italian national and ICRC delegate, and Marie Jean Lacaba, a
Filipino engineer, were purportedly inspecting a water and sanitation project for the
Sulu Provincial Jail when inspecting a water and sanitation project for the Sulu
Provincial Jail when they were seized by three armed men who were later confirmed to
be members of the Abu Sayyaf Group (ASG).2 The leader of the alleged kidnappers
was identified as Raden Abu, a former guard at the Sulu Provincial Jail. News reports
linked Abu to Albader Parad, one of the known leaders of the Abu Sayyaf.
On 21 January 2009, a task force was created by the ICRC and the Philippine National
Police (PNP), which then organized a parallel local group known as the Local Crisis
Committee.3 The local group, later renamed Sulu Crisis Management Committee,
convened under the leadership of respondent Abdusakur Mahail Tan, the Provincial
Governor of Sulu. Its armed forces component was headed by respondents General
Juancho Saban, and his deputy, Colonel Eugenio Clemen. The PNP component was
headed by respondent Police Superintendent Bienvenido G. Latag, the Police Deputy
Director for Operations of the Autonomous Region of Muslim Mindanao (ARMM). 4
Governor Tan organized the Civilian Emergency Force (CEF), a group of armed male
civilians coming from different municipalities, who were redeployed to surrounding
areas of Patikul.5 The organization of the CEF was embodied in a "Memorandum of
Understanding"6 entered into
between three parties: the provincial government of Sulu, represented by Governor
Tan; the Armed Forces of the Philippines, represented by Gen. Saban; and the
Philippine National Police, represented by P/SUPT. Latag. The Whereas clauses of the
Memorandum alluded to the extraordinary situation in Sulu, and the willingness of
civilian supporters of the municipal mayors to offer their services in order that "the early
and safe rescue of the hostages may be achieved."7
This Memorandum, which was labeled ‘secret’ on its all pages, also outlined the
responsibilities of each of the party signatories, as follows:
Responsibilities of the Provincial Government:
1) The Provincial Government shall source the funds and logistics needed for the
activation of the CEF;
2) The Provincial Government shall identify the Local Government Units which shall
participate in the operations and to propose them for the approval of the parties to this
agreement;
3) The Provincial Government shall ensure that there will be no unilateral action(s) by
the CEF without the knowledge and approval by both parties.
Responsibilities of AFP/PNP/ TF ICRC (Task Force ICRC):
1) The AFP/PNP shall remain the authority as prescribed by law in military operations
and law enforcement;
2) The AFP/PNP shall ensure the orderly deployment of the CEF in the performance of
their assigned task(s);
3) The AFP/PNP shall ensure the safe movements of the CEF in identified areas of
operation(s);
4) The AFP/PNP shall provide the necessary support and/or assistance as called for in
the course of operation(s)/movements of the CEF.8
Meanwhile, Ronaldo Puno, then Secretary of the Department of Interior and Local
Government, announced to the media that government troops had cornered some one
hundred and twenty (120) Abu Sayyaf members along with the three (3)
hostages.9 However, the ASG made
contact with the authorities and demanded that the military pull its troops back from the
jungle area.10 The government troops yielded and went back to their barracks; the
Philippine Marines withdrew to their camp, while police and civilian forces pulled back
from the terrorists’ stronghold by ten (10) to fifteen (15) kilometers. Threatening that
one of the hostages will be beheaded, the ASG further demanded the evacuation of
the military camps and bases in the different barangays in Jolo.11 The authorities were
given no later than 2:00 o’clock in the afternoon of 31 March 2009 to comply.12
On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009
(Proclamation 1-09), declaring a state of emergency in the province of Sulu. 13 It cited
the kidnapping incident as a ground for the said declaration, describing it as a terrorist
act pursuant to the Human Security
Act (R.A. 9372). It also invoked Section 465 of the Local Government Code of 1991
(R.A. 7160), which bestows on the Provincial Governor the power to carry out
emergency measures during man-made and natural disasters and calamities, and to
call upon the appropriate national law enforcement agencies to suppress disorder and
lawless violence.
In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up
checkpoints and chokepoints, conduct general search and seizures including arrests,
and other actions necessary to ensure public safety. The pertinent portion of the
proclamation states:

NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY LAW, I,
ABDUSAKUR MAHAIL TAN, GOVERNOR OF THE PROVINCE OF SULU, DO
HEREBY DECLARE A STATE OF EMERGENCY IN THE PROVINCE OF SULU, AND
CALL ON THE PHILIPPINE NATIONAL POLICE WITH THE ASSISTANCE OF THE
ARMED FORCES OF THE PHILIPPINES AND THE CIVILIAN EMERGENCY FORCE
TO IMPLEMENT THE FOLLOWING:
1. The setting-up of checkpoints and chokepoints in the province;
2. The imposition of curfew for the entire province subject to such Guidelines as may
be issued by proper authorities;
3. The conduct of General Search and Seizure including arrests in the pursuit of the
kidnappers and their supporters; and
4. To conduct such other actions or police operations as may be necessary to ensure
public safety.
DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS
31STDAY OF MARCH 2009. Sgd. Abdusakur M. Tan Governor.14
On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to
respondent P/SUPT. Julasirim Kasim.15 Upon arriving at the police station, he was
booked, and interviewed about his relationship to Musin, Jaiton, and Julamin, who were
all his deceased relatives. Upon admitting that he was indeed related to the three, he
was detained. After a few hours, former Punong Barangay Juljahan Awadi, Hadji
Hadjirul Bambra, Abdugajir Hadjirul, as well as PO2 Marcial Hajan, SPO3 Muhilmi
Ismula, Punong Barangay Alano Mohammad and jeepney driver Abduhadi Sabdani,
were also arrested.16 The affidavit17 of the apprehending officer alleged that they were
suspected ASG supporters and were being arrested under Proclamation 1-09. The
following day, 2 April 2009, the hostage Mary Jane Lacaba was released by the ASG.
On 4 April 2009, the office of Governor Tan distributed to civic organizations, copies of
the "Guidelines for the Implementation of Proclamation No. 1, Series of 2009 Declaring
a State of Emergency in the Province of Sulu." 18 These Guidelines suspended all
Permits to Carry
Firearms Outside of Residence (PTCFORs) issued by the Chief of the PNP, and
allowed civilians to seek exemption from the gun ban only by applying to the Office of
the Governor and obtaining the appropriate identification cards. The said guidelines
also allowed general searches and seizures in designated checkpoints and
chokepoints.
On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji Mohammad Yusop
Ismi, Ahajan Awadi, and SPO1 Sattal H. Jadjuli, residents of Patikul, Sulu, filed the
present Petition for Certiorari and Prohibition,19 claiming that Proclamation 1-09 was
issued with grave abuse of discretion amounting to lack or excess of jurisdiction, as it
threatened fundamental freedoms guaranteed under Article III of the 1987 Constitution.
2
Petitioners contend that Proclamation No. 1 and its Implementing Guidelines were
issued ultra vires, and thus null and void, for violating Sections 1 and 18, Article VII of
the Constitution, which grants the President sole authority to exercise emergency
powers and calling-out powers as the chief executive of the Republic and commander-
in-chief of the armed forces.20 Additionally, petitioners claim that the Provincial
Governor is not authorized by any law to create civilian armed forces under his
command, nor regulate and limit the issuances of PTCFORs to his own private army.
In his Comment, Governor Tan contended that petitioners violated the doctrine on
hierarchy of courts when they filed the instant petition directly in the court of last resort,
even if both the Court of Appeals (CA) and the Regional Trial Courts (RTC) possessed
concurrent jurisdiction with the
Supreme Court under Rule 65.21 This is the only procedural defense raised by
respondent Tan. Respondents Gen. Juancho Saban, Col. Eugenio Clemen, P/SUPT.
Julasirim Kasim, and P/SUPT. Bienvenido Latag did not file their respective
Comments.1âwphi1
On the substantive issues, respondents deny that Proclamation 1-09 was issued ultra
vires, as Governor Tan allegedly acted pursuant to Sections 16 and 465 of the Local
Government Code, which empowers the Provincial Governor to carry out emergency
measures during calamities and disasters, and to call upon the appropriate national law
enforcement agencies to suppress disorder, riot, lawless violence, rebellion or
sedition.22 Furthermore, the Sangguniang Panlalawigan of Sulu authorized the
declaration of a state of emergency as evidenced by Resolution No. 4, Series of 2009
issued on 31 March 2009 during its regular session.23
The threshold issue in the present case is whether or not Section 465, in relation to
Section 16, of the Local Government Code authorizes the respondent governor to
declare a state of emergency, and exercise the powers enumerated under
Proclamation 1-09, specifically the conduct of general searches and seizures.
Subsumed herein is the secondary question of whether or not the provincial governor
is similarly clothed with authority to convene the CEF under the said provisions.
We grant the petition.
I. Transcendental public Importance warrants a relaxation of the Doctrine of Hierarchy
of Courts
We first dispose of respondents’ invocation of the doctrine of hierarchy of courts which
allegedly prevents judicial review by this Court in the present case, citing for this specific
purpose, Montes v. Court of Appeals and Purok Bagong Silang Association, Inc. v.
Yuipco.24 Simply put, the
doctrine provides that where the issuance of an extraordinary writ is also within the
competence of the CA or the RTC, it is in either of these courts and not in the Supreme
Court, that the specific action for the issuance of such writ must be sought unless
special and important laws are clearly and specifically set forth in the petition. The
reason for this is that this Court is a court of last resort and must so remain if it is to

perform the functions assigned to it by the Constitution and immemorial tradition. It
cannot be burdened with deciding cases in the first instance. 25
The said rule, however, is not without exception. In Chavez v. PEA-Amari,26 the Court
stated:
PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly
from the Court. The principle of hierarchy of courts applies generally to cases involving
factual questions. As it is not a trier of facts, the Court cannot entertain cases involving
factual issues. The instant case, however, raises constitutional questions of
transcendental importance to the public. The Court can resolve this case without
determining any factual issue related to the case. Also, the instant case is a petition for
mandamus which falls under the original jurisdiction of the Court under Section 5,
Article VIII of the Constitution. We resolve to exercise primary jurisdiction over the
instant case.27
The instant case stems from a petition for certiorari and prohibition, over which the
Supreme Court possesses original jurisdiction.28 More crucially, this case involves acts
of a public official which pertain to restrictive custody, and is thus impressed with
transcendental public importance that would warrant the relaxation of the general rule.
The Court would be remiss in its constitutional duties were it to dismiss the present
petition solely due to claims of judicial hierarchy.
In David v. Macapagal-Arroyo,29 the Court highlighted the transcendental public
importance involved in cases that concern restrictive custody, because judicial review
in these cases serves as "a manifestation of the crucial defense of civilians ‘in police
power’ cases due to the diminution of their basic liberties under the guise of a state of
emergency."30 Otherwise, the importance of the high tribunal as the court of last resort
would be put to naught, considering the nature of "emergency" cases, wherein the
proclamations and issuances are inherently short-lived. In finally disposing of the claim
that the issue had become moot and academic, the Court also cited transcendental
public importance as an exception, stating:
Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa mahigpit na
pangangalaga (restrictive custody) at pagmonitor ng galaw (monitoring of movements)
ng nagpepetisyon, dedesisyunan namin ito (a) dahil sa nangingibabaw na interes ng
madla na nakapaloob dito,
(b) dahil sa posibilidad na maaaring maulit ang pangyayari at (c) dahil kailangang
maturuan ang kapulisan tungkol dito.
The moot and academic principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution; second, the exceptional
character of the situation and the paramount public interest is involved; third, when [the]
constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review.
3
…There is no question that the issues being raised affect the public interest, involving
as they do the people’s basic rights to freedom of expression, of assembly and of the
press. Moreover, the
Court has the duty to formulate guiding and controlling constitutional precepts,
doctrines or rules. It has the symbolic function of educating the bench and the bar, and
in the present petitions, the military and the police, on the extent of the protection given
by constitutional guarantees. And lastly, respondents contested actions are capable of
repetition. Certainly, the petitions are subject to judicial review.
Evidently, the triple reasons We advanced at the start of Our ruling are justified under
the foregoing exceptions. Every bad, unusual incident where police officers figure in
generates public interest and people watch what will be done or not done to them. Lack
of disciplinary steps taken against them erode public confidence in the police institution.
As petitioners themselves assert, the restrictive custody of policemen under
investigation is an existing practice, hence, the issue is bound to crop up every now
and then. The matter is capable of repetition or susceptible of recurrence. It better be
resolved now for the education and guidance of all concerned. 31 (Emphasis supplied)
Hence, the instant petition is given due course, impressed as it is with transcendental
public importance.
II. Only the President is vested with calling-out powers, as the commander-in-chief of
the Republic
i. One executive, one commander-in-chief
As early as Villena v. Secretary of Interior, 32 it has already been established that there
is one repository of executive powers, and that is the President of the Republic. This
means that when Section 1, Article VII of the Constitution speaks of executive power,
it is granted to the President and no one else. 33 As emphasized by Justice Jose P.
Laurel, in his ponencia in Villena:
With reference to the Executive Department of the government, there is one purpose
which is crystal-clear and is readily visible without the projection of judicial searchlight,
and that is the establishment of a single, not plural, Executive. The first section of Article
VII of the Constitution, dealing with the Executive Department, begins with the
enunciation of the principle that "The executive power shall be vested in a President of
the Philippines." This means that the President of the Philippines is the Executive of
the Government of the Philippines, and no other.34
Corollarily, it is only the President, as Executive, who is authorized to exercise
emergency powers as provided under Section 23, Article VI, of the Constitution, as well
as what became known as the calling-out powers under Section 7, Article VII thereof.
ii. The exceptional character of Commander-in-Chief powers dictate that they are
exercised by one president

Springing from the well-entrenched constitutional precept of One President is the notion
that there are certain acts which, by their very nature, may only be performed by the
president as the Head of the State. One of these acts or prerogatives is the bundle of
Commander-in-Chief powers to which the "calling-out" powers constitutes a portion.
The President’s Emergency Powers, on the other hand, is balanced only by the
legislative act of Congress, as embodied in the second paragraph of Section 23, Article
6 of the Constitution:
Article 6, Sec 23(2). In times of war or other national emergency, the Congress may,
by law, authorize the President, for a limited period and subject to such restrictions as
it may prescribe, to exercise powers necessary and proper to carry out a declared
national policy. Unless sooner withdrawn by resolution of the Congress, such powers
shall cease upon the next adjournment thereof.35
Article 7, Sec 18. The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion
or rebellion, when the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress. The Congress, voting jointly, by
a vote of at least a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be determined by the Congress,
if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a
call.36
The power to declare a state of martial law is subject to the Supreme Court’s authority
to review the factual basis thereof. 37 By constitutional fiat, the calling-out powers, which
is of lesser gravity than the power to declare martial law, is bestowed upon the
President alone. As noted in Villena, "(t)here are certain constitutional powers and
prerogatives of the Chief Executive of the Nation which must be exercised by him in
person and no amount of approval or ratification will validate the exercise of any of
those powers by any other person. Such, for instance, is his power to suspend the writ
of habeas corpus and proclaim martial law x x x.38
Indeed, while the President is still a civilian, Article II, Section 3 39 of the Constitution
mandates that civilian authority is, at all times, supreme over the military, making the
civilian president the nation’s supreme military leader. The net effect of Article II,
Section 3, when read with Article VII,
Section 18, is that a civilian President is the ceremonial, legal and administrative head
of the armed forces. The Constitution does not require that the President must be
4
possessed of military training and talents, but as Commander-in-Chief, he has the
power to direct military operations and to determine military strategy. Normally, he
would be expected to delegate the actual command of the armed forces to military
experts; but the ultimate power is his.40 As Commander-in-Chief, he is authorized to
direct the movements of the naval and military forces placed by law at his command,
and to employ them in the manner he may deem most effectual. 41
In the case of Integrated Bar of the Philippines v. Zamora, 42 the Court had occasion to
rule that the calling-out powers belong solely to the President as commander-in-chief:
When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in
his wisdom. This is clear from the intent of the framers and from the text of the
Constitution itself. The Court, thus, cannot be called upon to overrule the President’s
wisdom or substitute its own. However, this does not prevent an examination of whether
such power was exercised within permissible constitutional limits or whether it was
exercised in a manner constituting grave abuse of discretion. In view of the
constitutional intent to give the President full discretionary power to determine the
necessity of calling out the armed forces, it is incumbent upon the petitioner to show
that the President’s decision is totally bereft of factual basis.
There is a clear textual commitment under the Constitution to bestow on the President
full discretionary power to call out the armed forces and to determine the necessity for
the exercise of such power.43 (Emphasis supplied)
Under the foregoing provisions, Congress may revoke such proclamation or
suspension and the Court may review the sufficiency of the factual basis thereof.
However, there is no such equivalent provision dealing with the revocation or review of
the President’s action to call out the armed forces. The distinction places the calling out
power in a different category from the power to declare martial law and the power to
suspend the privilege of the writ of habeas corpus, otherwise, the framers of the
Constitution would have simply lumped together the three powers and provided for their
revocation and review without any qualification.44
That the power to call upon the armed forces is discretionary on the president is clear
from the deliberation of the Constitutional Commission:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power
of the President as Commander-in-Chief. First, he can call out such Armed Forces as
may be necessary to suppress lawless violence; then he can suspend the privilege of
the writ of habeas corpus, then he can impose martial law. This is a graduated
sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of
the writ of habeas corpus, his judgment is subject to review. We are making it subject
to review by the Supreme Court and subject to concurrence by the National Assembly.
But when he exercises this lesser power of calling on the Armed Forces, when he says
it is necessary, it is my opinion that his judgment cannot be reviewed by anybody.

xxx xxx xxx
MR. REGALADO. That does not require any concurrence by the legislature nor is it
subject to judicial review.
The reason for the difference in the treatment of the aforementioned powers highlights
the intent to grant the President the widest leeway and broadest discretion in using the
power to call out because it is considered as the lesser and more benign power
compared to the power to suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the curtailment and suppression of
certain basic civil rights and individual freedoms, and thus necessitating safeguards by
Congress and review by this Court.
x x x Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when
in his judgment it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion.45 (Emphasis Supplied)
In the more recent case of Constantino, Jr. v. Cuisia, 46 the Court characterized these
powers as exclusive to the President, precisely because they are of exceptional import:
These distinctions hold true to this day as they remain embodied in our fundamental
law. There are certain presidential powers which arise out of exceptional
circumstances, and if exercised, would involve the suspension of fundamental
freedoms, or at least call for the supersedence of executive prerogatives over those
exercised by co-equal branches of government. The declaration of martial law, the
suspension of the writ of habeas corpus, and the exercise of the pardoning power,
notwithstanding the judicial determination of guilt of the accused, all fall within this
special class that demands the exclusive exercise by the President of the
constitutionally vested power. The list is by no means exclusive, but there must be a
showing that the executive power in question is of similar gravitas and exceptional
import.47
In addition to being the commander-in-chief of the armed forces, the President also
acts as the leader of the country’s police forces, under the mandate of Section 17,
Article VII of the Constitution, which provides that, "The President shall have control of
all the executive departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed." During the deliberations of the Constitutional Commission on the
framing of this provision, Fr. Bernas defended the retention of the word "control,"
employing the same rationale of singularity of the office of the president, as the only
Executive under the presidential form of government. 48
Regarding the country’s police force, Section 6, Article XVI of the Constitution states
that: "The State shall establish and maintain one police force, which shall be national
in scope and civilian in character, to be administered and controlled by a national police
commission. The authority of local executives over the police units in their jurisdiction
shall be provided by law."49
5
A local chief executive, such as the provincial governor, exercises operational
supervision over the police,50 and may exercise control only in day-to-day
operations, viz:
Mr. Natividad: By experience, it is not advisable to provide either in our Constitution or
by law full control of the police by the local chief executive and local executives, the
mayors. By our experience, this has spawned warlordism, bossism and sanctuaries for
vices and abuses. If the national government does not have a mechanism to supervise
these 1,500 legally, technically separate police forces, plus 61 city police forces,
fragmented police system, we will have a lot of difficulty in presenting a modern
professional police force. So that a certain amount of supervision and control will have
to be exercised by the national government.
For example, if a local government, a town cannot handle its peace and order problems
or police problems, such as riots, conflagrations or organized crime, the national
government may come in, especially if requested by the local executives. Under that
situation, if they come in under such an extraordinary situation, they will be in control.
But if the day-to-day business of police investigation of crime, crime prevention,
activities, traffic control, is all lodged in the mayors, and if they are in complete
operational control of the day-to-day business of police service, what the national
government would control would be the administrative aspect.
xxx xxx xxx
Mr. de los Reyes: so the operational control on a day-to-day basis, meaning, the usual
duties being performed by the ordinary policemen, will be under the supervision of the
local executives?
Mr. Natividad: Yes, Madam President.
xxx xxx xxx
Mr. de los Reyes: But in exceptional cases, even the operational control can be taken
over by the National Police Commission?
Mr. Natividad: If the situation is beyond the capacity of the local
governments.51 (Emphases supplied)
Furthermore according to the framers, it is still the President who is authorized to
exercise supervision and control over the police, through the National Police
Commission:
Mr. Rodrigo: Just a few questions. The President of the Philippines is the Commander-
in-Chief of all the armed forces.
Mr. Natividad: Yes, Madam President.
Mr. Rodrigo: Since the national police is not integrated with the armed forces, I do not
suppose they come under the Commander-in-Chief powers of the President of the
Philippines.

Mr. Natividad: They do, Madam President. By law, they are under the supervision and
control of the President of the Philippines.
Mr. Rodrigo: Yes, but the President is not the Commander-in-Chief of the national
police.
Mr. Natividad: He is the President.
Mr. Rodrigo: Yes, the Executive. But they do not come under that specific provision that
the President is the Commander-in-Chief of all the armed forces.
Mr. Natividad: No, not under the Commander-in-Chief provision.
Mr. Rodrigo: There are two other powers of the President. The
President has control over ministries, bureaus and offices, and supervision over local
governments. Under which does the police fall, under control or under supervision?
Mr. Natividad: Both, Madam President.
Mr. Rodrigo: Control and supervision.
Mr. Natividad: Yes, in fact, the National Police Commission is under the Office of the
President.52
In the discussions of the Constitutional Commission regarding the above provision it is
clear that the framers never intended for local chief executives to exercise unbridled
control over the police in emergency situations. This is without prejudice to their
authority over police units in their jurisdiction as provided by law, and their prerogative
to seek assistance from the police in day to day situations, as contemplated by the
Constitutional Commission. But as a civilian agency of the government, the police,
through the NAPOLCOM, properly comes within, and is subject to, the exercise by the
President of the power of executive control.53
iii. The provincial governor does not possess the same calling-out powers as the
President
Given the foregoing, respondent provincial governor is not endowed with the power to
call upon the armed forces at his own bidding. In issuing the assailed proclamation,
Governor Tan exceeded his authority when he declared a state of emergency and
called upon the Armed Forces, the police, and his own Civilian Emergency Force. The
calling-out powers contemplated under the Constitution is exclusive to the President.
An exercise by another official, even if he is the local chief executive, is ultra vires, and
may not be justified by the invocation of Section 465 of the Local Government Code,
as will be discussed subsequently.
Respondents, however, justify this stance by stating that nowhere in the seminal case
of David v. Arroyo, which dealt squarely with the issue of the declaration of a state of
emergency, does it limit the said authority to the President alone. Respondents contend
that the ruling in David expressly limits the authority to declare a national emergency,
6
a condition which covers the entire country, and does not include emergency situations
in local government units.54 This claim is belied by the clear intent of the framers that in
all situations involving threats to security, such as lawless violence, invasion or
rebellion, even in localized areas, it is still the President who possesses the sole
authority to exercise calling-out powers. As reflected in the Journal of the Constitutional
Commission:
Thereafter, Mr. Padilla proposed on line 29 to insert the phrase OR PUBLIC
DISORDER in lieu of "invasion or rebellion." Mr. Sumulong stated that the committee
could not accept the amendment because under the first section of Section 15, the
President may call out and make use of the armed forces to prevent or suppress not
only lawless violence but even invasion or rebellion without declaring martial law. He
observed that by deleting "invasion or rebellion" and substituting PUBLIC DISORDER,
the President would have to declare martial law before he can make use of the armed
forces to prevent or suppress lawless invasion or rebellion.
Mr. Padilla, in reply thereto, stated that the first sentence contemplates a lighter
situation where there is some lawless violence in a small portion of the country or public
disorder in another at which times, the armed forces can be called to prevent or
suppress these incidents. He noted that the Commander-in-Chief can do so in a minor
degree but he can also exercise such powers should the situation worsen. The words
"invasion or rebellion" to be eliminated on line 14 are covered by the following sentence
which provides for "invasion or rebellion." He maintained that the proposed amendment
does not mean that under such circumstances, the President cannot call on the armed
forces to prevent or suppress the same.55 (Emphasis supplied)
III. Section 465 of the Local
Government Code cannot be invoked to justify the powers enumerated under
Proclamation 1-09
Respondent governor characterized the kidnapping of the three ICRC workers as a
terroristic act, and used this incident to justify the exercise of the powers enumerated
under Proclamation 1-09.56 He invokes Section 465, in relation to Section 16, of the
Local Government Code, which purportedly allows the governor to carry out emergency
measures and call upon the appropriate national law enforcement agencies for
assistance. But a closer look at the said proclamation shows that there is no provision
in the Local Government Code nor in any law on which the broad and unwarranted
powers granted to the Governor may be based.
Petitioners cite the implementation of "General Search and Seizure including arrests in
the pursuit of the kidnappers and their supporters," 57 as being violative of the
constitutional proscription on general search warrants and general seizures. Petitioners
rightly assert that this alone would be sufficient to render the proclamation void, as
general searches and seizures are proscribed, for being violative of the rights enshrined
in the Bill of Rights, particularly:

The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized. 58
In fact, respondent governor has arrogated unto himself powers exceeding even the
martial law powers of the President, because as the Constitution itself declares, "A state
of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
the jurisdiction on military courts and agencies over civilians where civil courts are able
to function, nor automatically suspend the privilege of the writ." 59
We find, and so hold, that there is nothing in the Local Government Code which justifies
the acts sanctioned under the said Proclamation. Not even Section 465 of the said
Code, in relation to Section 16, which states:
Section 465. The Chief Executive: Powers, Duties, Functions, and Compensation.
xxx xxx xxx
(b) For efficient, effective and economical governance the purpose of which is the
general welfare of the province and its inhabitants pursuant to Section 16 of this Code,
the provincial governor shall:
(1) Exercise general supervision and control over all programs, projects, services, and
activities of the provincial government, and in this connection, shall:
xxx xxx xxx
(vii) Carry out such emergency measures as may be necessary during and in the
aftermath of man-made and natural disasters and calamities;
(2) Enforce all laws and ordinances relative to the governance of the province and the
exercise of the appropriate corporate powers provided for under Section 22 of this
Code, implement all approved policies, programs, projects, services and activities of
the province and, in addition to the foregoing, shall:
xxx xxx xxx
(vi) Call upon the appropriate national law enforcement agencies to suppress disorder,
riot, lawless violence, rebellion or sedition or to apprehend violators of the law when
public interest so requires and the police forces of the component city or municipality
where the disorder or violation is happening are inadequate to cope with the situation
or the violators.
Section 16. General Welfare. - Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
7
essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right
of the people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants. (Emphases supplied)
Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465 above, as
the said provision expressly refers to calamities and disasters, whether man-made or
natural. The governor, as local chief executive of the province, is certainly empowered
to enact and implement emergency measures during these occurrences. But the
kidnapping incident in the case at bar cannot be considered as a calamity or a disaster.
Respondents cannot find any legal mooring under this provision to justify their actions.
Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for two
reasons. First, the Armed Forces of the Philippines does not fall under the category of
a "national law enforcement agency," to which the National Police Commission
(NAPOLCOM) and its departments belong.
Its mandate is to uphold the sovereignty of the Philippines, support the Constitution,
and defend the Republic against all enemies, foreign and domestic. Its aim is also to
secure the integrity of the national territory.60
Second, there was no evidence or even an allegation on record that the local police
forces were inadequate to cope with the situation or apprehend the violators. If they
were inadequate, the recourse of the provincial governor was to ask the assistance of
the Secretary of Interior and Local Government, or such other authorized officials, for
the assistance of national law enforcement agencies.
The Local Government Code does not involve the diminution of central powers
inherently vested in the National Government, especially not the prerogatives solely
granted by the Constitution to the President in matters of security and defense.
The intent behind the powers granted to local government units is fiscal, economic, and
administrative in nature.1âwphi1 The Code is concerned only with powers that would
make the delivery of basic services more effective to the constituents, 61 and should not
be unduly stretched to confer calling-out powers on local executives.
In the sponsorship remarks for Republic Act 7160, it was stated that the devolution of
powers is a step towards the autonomy of local government units (LGUs), and is
actually an experiment whose success heavily relies on the power of taxation of the
LGUs. The underpinnings of the Code can be found in Section 5, Article II of the 1973
Constitution, which allowed LGUs to create their own sources of revenue. 62 During the
interpellation made by Mr. Tirol addressed to Mr. de Pedro, the latter emphasized that
"Decentralization is an administrative concept and the process of shifting and
delegating power from a central point to subordinate levels to promote independence,
 8

responsibility, and quicker decision-making. … (I)t does not involve any transfer of final
authority from the national to field levels, nor diminution of central office powers and
responsibilities. Certain government agencies, including the police force, are exempted
from the decentralization process because their functions are not inherent in local
government units."63
WHEREFORE, the instant petition is GRANTED. Judgment is rendered commanding
respondents to desist from further proceedings m implementing Proclamation No. 1,
Series of 2009, and its Implementing Guidelines. The said proclamation and guidelines
are hereby declared NULL and VOID for having been issued in grave abuse of
discretion, amounting to lack or excess of jurisdiction.

IV. Provincial governor is not authorized to convene CEF SO ORDERED.

Pursuant to the national policy to establish one police force, the organization of private
citizen armies is proscribed. Section 24 of Article XVIII of the Constitution mandates
that:

Private armies and other armed groups not recognized by duly constituted authority
shall be dismantled. All paramilitary forces including Civilian Home Defense Forces
(CHDF) not consistent with the citizen armed force established in this Constitution, shall
be dissolved or, where appropriate, converted into the regular force.

Additionally, Section 21of Article XI states that, "The preservation of peace and order
within the regions shall be the responsibility of the local police agencies which shall be
organized, maintained, supervised, and utilized in accordance with applicable laws.
The defense and security of the regions shall be the responsibility of the National
Government."

Taken in conjunction with each other, it becomes clear that the Constitution does not
authorize the organization of private armed groups similar to the CEF convened by the
respondent Governor. The framers of the Constitution were themselves wary of armed
citizens’ groups, as shown in the following proceedings:

MR. GARCIA: I think it is very clear that the problem we have here is a paramilitary
force operating under the cloak, under the mantle of legality is creating a lot of problems
precisely by being able to operate as an independent private army for many regional
warlords. And at the same time, this I think has been the thrust, the intent of many of
the discussions and objections to the paramilitary units and the armed groups.

MR. PADILLA: My proposal covers two parts: the private armies of political warlords
and other armed torces not recognized by constituted authority which shall be
dismantled and dissolved. In my trips to the provinces, I heard of many abuses
committed by the CHDF (Civilian Home Defense Forces), specially in Escalante,
Negros Occidental. But I do not know whether a particular CHDF is approved or
authorized by competent authority. If it is not authorized, then the CHDF will have to be
dismantled. If some CHDFs, say in other provinces, are authorized by constituted
authority, by the Armed Forces of the Philippines, through the Chief of Staff or the
Minister of National Defense, if they are recognized and authorized, then they will not
be dismantled. But I cannot give a categorical answer to any specific CHDF unit, only
the principle that if they are armed forces which are not authorized, then they should
be dismantled. 64 (Emphasis supplied)

Thus, with the discussions in the Constitutional Commission as guide, the creation of
the Civilian Emergency Force (CEF) in the present case, is also invalid.

G.R. No. 195594 September 29, 2014
REPUBLIC OF THE PHILIPPINES, represented by the NATIONAL IRRIGATION
ADMINISTRATION, Petitioner,
vs.
SPOUSES ROGELIO LAZO and DOLORES LAZO, Respondents.
This petition for review on certiorari under Rule 45 of the 1997 Revised Rules on Civil
Procedure (Rules) seeks to annul and set aside the October 22, 2010 Decision 1 and
January 31, 2011 Resolution 2 of the Court of Appeals (CA) in CA-G.R. SP No. 107962,
which affirmed the Order3 dated September 17, 2008 and Supplement to the Order4 of
September 17, 2008 dated September 19, 2008 of Regional Trial Court, Branch 21,
Vigan City, Ilocos Sur, granting respondents' prayer for preliminary prohibitory and
mandatory injunction in Civil Case No. 6798-V for Just Compensation with Damages
against petitioner.
The facts appear as follows:
Respondents spouses Rogelio Lazo and Dolores Lazo are the owners and developers
of Monte Vista Homes (Monte Vista), a residential subdivision located in Barangay
Paing, Municipality of Bantay, Ilocos Sur. Sometime in 2006, they voluntarily sold to the
National Irrigation Administration (NIA) a portion of Monte Vista for the construction of
an open irrigation canal that is part ofthe Banaoang Pump Irrigation Project (BPIP). The
consideration of the negotiated sale was in a total amount of ₱27,180,000.00 at the
rate of ₱2,500.00 per square meter.5 Subsequently, respondents engaged the services
of Engr. Donno G. Custodio, retired Chief Geologist ofthe Mines and Geosciences
Bureau Department of Environment and Natural Resources, 6 to conduct a geohazard
study on the possible effects of the BPIP on Monte Vista. Engr. Custodio later came up
with a Geohazard Assessment Report (GAR),7 finding that ground shaking and channel
bank erosion are the possible hazards that could affect the NIA irrigation canal
traversing Monte Vista. He then recommended the following:
● Construction of a two (2) or double slope retaining wallsanchored to a reinforced
foundation on both sides ofthe irrigation channel within the Monte Vista Homes
Subdivision Project (Phase I & II). A buffer zone of at least 20 meters from the
embankment to the nearest structure should be strictly enforced.
● Construction of a one (1) meter highconcrete dike above the retaining wall to prevent
surface run-off during heavy rainfall from flowing to the irrigation canal. Likewise, to
prevent future residents of the subdivision from accidentally falling into the irrigation
canal.
● Construction of adequate draining system along the buffer zone to prevent surface
run-off during rainy season to percolate into the irrigation canal embankment
and/orscour the concrete dike and retaining wall.
● Planting of ornamental trees/plants and shrubs along the buffer zone to prevent
destabilization of the irrigation canal embankment and for aesthetic reasons in the
area.8
9
On December 22, 2006, the Sangguniang Bayanof Bantay, Ilocos Sur approved
Resolution No. 34, which adopted the recommendations contained in the GAR. 9 Among
others, it resolved that the GAR recommendations should be observed and
implemented by the concerned implementing agency of the NIA BPIP.
Respondent Rogelio Lazo brought toNIA’s attention Resolution No. 34 through his
letters dated January 15, 2007, September 5, 2007, and November 1, 2007.10 He
specifically asked for the implementation of the GAR recommendations and the
payment ofjust compensation for the entire buffer zone involving an aggregate area of
14,381 sq. m., more or less.
When respondents’ demands were not acted upon, they decided to file a complaint for
just compensation withdamages against NIA on January 31, 2008.11 Prior to the filing
of an Answer, respondents filed an Amended Complaint with application for a
temporary restraining order (TRO) and preliminary injunction. 12 They further alleged
thatthe BPIP contractor is undertaking substandard works that increase the risk of a
fatal accident.
Per Order13 dated July 8, 2008, the trial court issued an ex parte 72-hour TRO and
directed the NIA to appear in a summary hearing on July 9, 2008 to show cause why
the injunction should not be granted. Instead of a personal appearance, the NIA,
through the Office of the Solicitor General (OSG), filed a Manifestation and
Motion14 praying that the TRO be lifted and the application for preliminary injunction be
denied for being prohibited by Republic Act. No. 8975.15 In the July 9, 2008 hearing,
the trial court ordered respondents to comment on the Manifestation and Motion (which
was later on complied with)16 and extended the TRO for 20 days from its issuance.17
During the July 23, 2008 hearing on respondents’ prayer for provisional relief, the
parties presented their respective witnesses. Engr. Jerry Zapanta, the Technical
Operations Manager of the NIA-BPIP, was petitioner’s sole witness, while Rogelio Lazo
and Engr. Custodio testified for respondents.
Petitioner filed its Answer18 to the Amended Complaint on August 22, 2008. After which,
respondents filed a Reply.19
On September 17, 2008, the trial court granted respondents’ application for preliminary
injunction.The dispositive portion of the Order reads:
WHEREFORE, in view of all the foregoing, the application for preliminary prohibitory
and mandatory injunction by plaintiffs is hereby GRANTED.
Defendant is hereby enjoined fromcontinuing further construction works on the
irrigation canalparticularly those located inside the Monte Vista Homes until the issue
in the main case is resolved.
Further, defendant is ordered tocomply with Resolution No. 34, Series of 2006 of the
Sangguniang Bayan of the Municipality of Bantay Ilocos Sur, adopting the
recommendations of the Geohazard Assessment Report undertaken by Engr. Donno

Custodio, unless said Resolution has been revoked, superseded or modified in such a
manner that would negate compliance therewith by defendant.
SO ORDERED.20
Two days later, the trial court issued a Supplement to the Order of September 17, 2008,
stating: The dispositive portion of the Order of September 17, 2008 is supplemented
with a last paragraph to read as follows:
"The Court hereby fixes the injunction bond in the amount of THREE MILLION PESOS
(Php3,000,000.00). Upon approval of the requisite bond, let the Writ of preliminary
prohibitory and mandatory injunctions issue."
SO ORDERED.21
The trial court ruled that the instant case falls under the exception of Section 3 of R.A.
No. 8975, because respondents’ demand for just compensation is by reason of the
property being burdened by the construction of the open irrigation canal in Monte Vista
which altered its use and integrity. In declaring that the right of private individuals whose
property were expropriated by the State is a matter of constitutional urgency, it opined:
While [petitioner] insists that [respondents] were fully paid for the actual area where the
irrigation canal is being constructed, it refuses to compensate [respondents] for their
property burdened by the construction of the irrigation canal. "Taking" in the
constitutional sense may include trespass without actual eviction of the owner, material
impairment of the property or the prevention of the ordinary use for which the property
was intended. Thus, in National Power Corporation vs. Gutierrez (193 SCRA 1, as cited
by J. Antonio B. Nachurain his Outline Reviewer in Political Law, 2002 Edition, p. 37),
the Supreme Court held that the exercise of the power of eminent domain does not
always result in the taking of property; it may also result in the imposition of burden
upon the owner of the condemned property without loss of titleor possession.
It would indubitably appear in this case that there is really a necessity of appropriating
more of the [respondents’] property by [petitioner] to ensure the safety and security of
operating the open irrigation canal. This could never bemore true in the light of the
Sangguniang Bayan’s Resolution [34], Series of 2006[,] which adopted the
recommendations contained in the Geohazard Assessment Report. Significantly,
[petitioner] never refuted that there was such a Resolution, and worse, [petitioner] never
explained why it never incorporated the recommendations in the Resolution or even
made an attempt to consult with the concerned Sanggunian concerning the same. 22
Also, the trial court found that petitioner violated R.A. No. 7160, or the Local
Government Code of 1991. It said:
The Local Government Code embodies the policy of the State to devolve the powers
and authority of a former centralized government. [Petitioner] seemed to have
disregarded all deference due to the local government of the Municipality of Bantay
when[,] despite the issuance of Resolution, it insisted that its design of the open
irrigation canal is adequately safe without consultation or asking a formal audience with
10
the Sangguniang Bayan and spell-out the design of the open irrigation canal which
could persuade the latter to reconsider its Resolution.
Section 3 (g) of the Local Government Code provides that:
"The capabilities of local government units, especially the municipalities and
barangays, shall be enhanced by providing them with opportunities to participate
actively in the implementation of national programs and projects;"
Section 5 of the same Codeleaves no doubt as to the empowerment of local
government units that it provides.
Section 5. Rules of Interpretation. – In the interpretation of the provision of this Code,
the following rules shall apply:
"(a) Any provision on a power of a local government unit shall be liberally interpreted in
its favor, and in case of doubt any question thereon shall be resolved in favor of
devolution of powers and of the lower local government unit. Any fair and reasonable
doubt as to the existence of the power shall be interpreted in favor of the local
government unit concerned;" x x x
[Petitioner][,] by reason of its failure to abide by the required consultation, had
effectively deprecated the function, authority and power of the Sangguniang Bayan of
the Municipality of Bantay. Consequently, without the prior approbation of the
Sanggunian[,] [petitioner’s] irrigation project cannot be absolutely declared as
representative of the consent of the local government. Hence, it must be enjoined until
compliance by [petitioner] on consultative requirement or clear and convincing proof of
incorporation of the Sanggunian Resolution in the project design of the irrigation project
has been adduced.23
Without moving for a reconsideration of the two Orders, petitioner directly filed a petition
for certiorari24 before the CA.
On May 14, 2009, petitioner filed a Very Urgent Motion for the Issuance of a TRO and/or
Writ of Preliminary Injunction.25 In its May 27, 2009 Resolution, the CA denied the
motion and directed the parties to submit their respective memoranda.26 Accordingly,
both parties filed their Memorandum.27
Eventually, the CA dismissed the petition and affirmed the challenged Orders of the
trial court on October 22, 2010.
On procedural matters, the appellate court resolved the issues of whether petitioner
failed to exhaust administrative remedies and whether the petition should be dismissed
for lack of motion for reconsideration filed before the trial court. The CA opined that the
controversy falls squarely within the jurisdiction of the regular courts and not of the
Sangguniang Bayanconcerned, because what petitioner seeks to nullify are the Orders
of the trial court allegedly rendered in violation of R.A. No. 8975 and not the act or
propriety of the issuance of Resolution No. 34. It agreed, however, with respondents
that the petition for certiorari suffers from fatal defect since it was filed without seeking

first the reconsideration of the trial court. It was said that petitioner omitted to show
sufficient justification that there was no appeal or any plain, speedy, and adequate
remedy in the ordinary course of law.
As to the substantive merits of the case, the CA affirmed that the payment of just
compensation and the alleged need to rectify the inferior construction work on the
irrigation canal are constitutional issues which are of extreme urgency justifying the trial
court’s issuance of an injunctive writ. It held:
In the controversy below,what is put in issue is the consequent just compensation as a
result of the acquisition of a right-of-way for a national infrastructure project. Hence, the
application of Republic Act No. 8974 which pertinently provides:
"Sec. 4. Guidelines for Expropriation Proceedings. – Whenever it is necessary to
acquire real property for the right-ofway or location for any national government
infrastructure project through expropriation, the appropriate implementing agency shall
initiate the expropriation proceedings before the proper court under the following
guidelines:
(a) Upon the filing of the complaint, and after due notice to the defendant, the
implementing agency shall immediately pay the owner of the property the amount
equivalent to the sum of (1) one hundred percent (100%) of the value of the property
based on the current relevant zonal valuation of the Bureau of Internal Revenue (BIR);
and (2) the value of the improvements and/or structures as determined under Section
7 hereof.
xxx xxx xxx
Applying the provision in the attendant circumstances surrounding the issues in this
petition, it is immediately apparent that in acquiring right-of-way for purposes of
implementing a government infrastructure project and before any taking of the
expropriated property may be effected, it is indispensable for the government to pay
the owner of the property the amount equivalent to the sum of (1) one hundred percent
(100%) of the value of the property based on the current relevant zonal valuation of the
Bureau of Internal Revenue (BIR); and (2) the value of the improvements and/or
structures as determined through the guidelines provided by law.
And not merely by implication, petitioner cannot take over the property to be
expropriated and perform act of dominion over the landowner’s property without the
prerequisite full payment of just compensation. The positioning of this Court takes
precedence from the ruling of the Supreme Court in the landmark case of Republic of
the Philippines vs. Hon. Henrick F. Gingoyon.
xxxx
Petitioner cannot seek solace to its claim that it did not expropriate respondents’
property but rather purchased it through a negotiated sale. This claim can only be true
to the original plan of the irrigation canal. With the issuance of Resolution No. 34,
petitioner is bound to expropriate more of respondents’ property for sound and safety
11
reasons, which, unless they pay the full amount of just compensation, petitioner must
be enjoined from acting as de jureowner thereof.
Presently, the legal assumption would be that juridical possession of the property
expropriated remains with respondents. Hence, injunction would be proper in this case.
[Respondents] have proven an unmistakeable right over the property taken by NIA.
They have shown, in conformity with Rule 58 of the Rules of Court which provides for
the requisites before a preliminary injunction may be issued; that they are entitled to
the relief absent the full payment of just compensation, and thatthe relief asked for
petitioners to refrain from doing act of ownership over their property, and to improve
the quality of the construction workon the irrigation canal. NIA, as a government
expropriating agent, should refrain from continuing the acts complained of; otherwise,
grave and irreparable injury would result to the prejudice of respondents.
Be it noted that for a writ of preliminary injunction to be issued, the Rules of Court do
not require that the act complained of be in clear violation of the rights of the applicant.
Indeed, what the Rules require is that the act complained of be probablyin violation of
the rights of the applicant.28
Anent petitioner’s non-compliance withthe requirements of the Local Government
Code, the CA sustained the trial court’s finding:
Under the Local Government Code, therefore, two requisites must be met before a
national project that affects the environmental and ecological balance of local
communities can be implemented: prior consultation with the affected local
communities, and prior approval of the project by the appropriate sanggunian. Absent
either of these mandatory requirements, the project’s implementation is illegal.
We can take judicial notice thatthe construction and operation of an irrigation canal
scheme has seriousand intricate environmental impact on natural, ecological and
socio-economic conditions, which obviously includes lost of land use that would most
certainly affect the community where it is implemented. NIA should have conducted
prior consultations with the local government in consonance with the foregoing
provision of R.A. 7160. Strangely, it failed tomake such consultation.
Petitioner suggests that the local government should have conducted a separate
investigation on the aptness of the matter subject of the GAR or at least endorsed it to
other appropriate government agencies for confirmation in light of the fact that the local
government is dealing with NIA which is supposed to be anexpert on its field. However,
this Court cannot sustain a stand clearly borne out of neglect with its obligation to
consult the concerned local government prior to the implementation of the irrigation
project.
Petitioner never even cited any statute or law which mandates the local government to
conduct a separate investigation pertaining to the feasibility, viability or ecological
repercussion of any government infrastructure project to be implemented within its
territorial jurisdiction. The Constitution and Republic Act 7160 [are] adequate [sources]
of the autonomous authority of local governments to determine, based on resources or

references at its disposal, the soundness of a particular measure for a particular
infrastructure project. It has the sole discretion to promulgate enacting ordinances to
execute such measure.
[Respondent] could not be persuaded to rely on the accuracy and integrity of the Back
to Office Report of NIA much more than it could rely on the alleged credibility or
expertise of the persons who prepared the report. Records do not show that petitioner
exerted effort to present these people to establish their expertise; nor did they [make]
affirmation on the contents of the Back to Office Report. Resultantly, the testimony of
petitioner’s witness and his allegations to support the veracity of the contents of NIA’s
[Back] to Office Report are mere self-serving statements and inadmissible for being
hearsay.29
On January 31, 2011, the CA denied petitioner’s motion for reconsideration; hence, this
petition that raises the following issues for resolution:
I. WHETHER THE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE WHICH IS NOT IN
ACCORD WITH APPLICABLE LAWS AND PREVAILING JURISPRUDENCE
II. WHETHER THE FACTS OF THIS CASE JUSTIFIED PETITIONER’S IMMEDIATE RESORT TO THE COURT
OF APPEALS WITHOUT FILING A MOTION FOR RECONSIDERATION OF THE ASSAILED ORDERS OF
THE TRIAL COURT.
III. WHETHER REPUBLIC ACT (R.A.) NO. 7160 IS APPLICABLE TO THIS CASE.30
First off, the Court shall settle respondents’ procedural objections, to wit: (1) petitioners
did not follow the Rules when it filed a petition for certioraridirectly with the CA without
seeking for a reconsideration from the trial court; (2) the petition was filed out of time
due to belated payment of docket and other lawful fees; and (3) petitioner is guilty of
forum shopping.
The contentions are untenable.
A petition for certiorari may be given due course notwithstanding that no motion for
reconsideration was filed in the trial court. Although the direct filing of petitions for
certiorari with the CA is discouraged when litigants may still resort to remedies with the
trial court, the acceptance of and the grant of due course to a petition for certiorariis
generally addressed to the sound discretion of the court because the technical
provisions of the Rules may be relaxed or suspended if it will result in a manifest failure
or miscarriage of justice.31
The general rule is that a motion for reconsideration is a condition sine qua nonbefore
a petition for certiorarimay lie, its purpose being to grant an opportunity for the court a
quoto correct any error attributed to it by a re-examination of the legal and factual
circumstances of the case. However, the rule is not absoluteand jurisprudence has laid
down the following exceptions when the filing of a petition for certiorariis proper
notwithstanding the failure to file a motion for reconsideration:
(a) where the order is a patent nullity, as where the court a quohas no jurisdiction;
(b) where the questions raised in the certiorariproceedings have been duly raised and passed upon by the lower court, or are the same as those raised and
passed upon in the lower court;
(c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the
petitioner or the subject matter of the petition is perishable;
12
(d) where, under the circumstances, a motion for reconsideration would be useless;
(e) where petitioner was deprivedof due process and there is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of due process;
(h) where the proceeding was ex parteor in which the petitioner had no opportunity to object; and,
(i) where the issue raised is one purely of law or public interest is involved.32
We cannot but agree with petitioner that this case falls within instances (a), (b), (c), (d),
and (i) above-mentioned. As will be elucidated in the discussion below, the assailed
Orders of the trial court are patent nullity for having been issued in excess of its
jurisdiction. Also, the questions raised in the certiorari proceedings are the same as
those already raised and passed upon in the lower court; hence, filing a motion for
reconsideration would be useless and serve no practical purpose. There is likewise an
urgent necessity for the resolution of the question and any further delay would prejudice
the interests of the Government. In its petition and memorandum filed before the CA,
petitioner in fact noted that the BPIP is intended to cater the year-round irrigation needs
of 6,312 hectares of agricultural land in Bantay, Caoayan, Magsingal, San Ildefonso,
San Vicente, Sto. Domingo, Sta. Catalina, and Vigan in Ilocos Sur. 33 Even Resolution
No. 34 recognizes this. Public interest is actually involved as the targeted increase in
agricultural production is expected to uplift the farmers’ standard of living. Lastly, the
issue raised – that is, under the antecedent facts, whether the trial court committed
grave abuse of discretion ingranting respondents’ prayer for preliminary prohibitory and
mandatoryinjunction despite the mandate of R.A. No. 8975 – is one purely of law.
The CA and this Court unquestionably have full discretionary power to take cognizance
and assume jurisdiction of special civil actions for certiorarifiled directly with it for
exceptionally compelling reasons or if warranted by the nature of the issues clearly and
specifically raised in the petition. We deem it proper to adopt an open-minded approach
in the present case.
Also, while it has been stressed that payment of docket and other fees within the
prescribed period is mandatory for the perfection of the appeal and that such payment
is not a meretechnicality of law or procedure,34 the Court, in exceptional
circumstances,35 has allowed a liberal application of the Rules when the payments of
the required docket fees were delayed only for a few days. Indeed, late payment of
docket fees may be admitted when the party showed willingness to abide by the rules
through immediate payment of the required fees.36
In this case, records show that petitioner timely filed its motion for extension of time to
filea petition on March 2, 2011.37 The petition, however, was not docketed because the
required fees were not paid based on petitioner’s belief that it is exempt therefrom.
Nonetheless, payment was immediately made the following day, March 3, 2011.38 The
tardiness of petitioner is excusable since no significant period of time elapsed.
Finally, respondents argue that the filing of a Manifestation and Motion dated March
25, 2011 by petitionerwith the trial court should be considered as an act of forum
shopping. They assert that the prayer to admonish them from closing or blocking the

irrigation canal that traverses their property is tantamount to asking the trial court to lift
the injunction order. Respondents contend that instead of pleading for a restraining
order from this Court, petitioner, in effect, belatedly sought a reconsideration of the
Orders dated September 17, 2008 and September 19, 2008 before the trial court.
We do not agree.
Forum shopping is committed by a party who, having received an adverse judgment in
one forum, seeks another opinion in another court, other than by appeal or special civil
action of certiorari.39 It is the institution of two or more suits in different courts, either
simultaneously or successively, in order to ask the courts to rule on the same or related
causes and/or to grant the same or substantially the same reliefs. 40 In a fairly recent
case,41 the Court reiterated:
There is forum shopping "when a party repetitively avails of several judicial remedies
in different courts, simultaneously or successively, all substantially founded on the
same transactions and the same essential facts and circumstances, and all raising
substantially the same issues either pending in or already resolved adversely by some
other court." Forum shopping is an act of malpractice that is prohibited and condemned
because it trifles with the courts and abuses their processes. It degrades the
administration of justice and adds to the already congested court dockets. An important
factor in determining its existence is the vexation caused to the courts and the parties-
litigants by the filing of similar cases to claim substantially the same reliefs.
The test to determine the existence of forum shopping is whether the elements of litis
pendentia are present, or whether a final judgment in one case amounts to res
judicatain the other. Thus, there is forum shopping when the following elements are
present, namely: (a) identity of parties, or at least such parties as represent the same
interests in both actions; (b) identity of rights assertedand reliefs prayed for, the relief
being founded on the same facts; and (c) the identity of the two preceding particulars,
such that any judgment rendered in the other action will, regardless of which party is
successful, amounts to res judicata in the action under consideration.
Taking into account the surrounding circumstances, it cannot be said that petitioner’s
Manifestation and Motion dated March 25,2011 constitutes forum shopping. The full
text of which is quoted as follows:
MANIFESTATION AND MOTION
DEFENDANT, by counsel, to the Honorable Court, respectfully states:
1. On March 20, 2011, the Office of the Solicitor General (OSG) received a facsimile
letter dated March 10, 2011 from the Administrator of the National Irrigation
Administration (NIA) seeking legal assistance to prevent the plaintiffs from blocking the
irrigation canal traversing their property which would unduly disrupt the operations of
the Banaoang Pump Irrigation Project (BPIP).
xxxx
13
2. The above letter was precipitated by plaintiff Rogelio Lazo’s threat to bar the
operation of the section of the Banaoang Irrigation Canal constructed within the Monte
Vista Homes as can be gleaned from the letter dated February 28, 2011 of Engr.
Santiago P. Gorospe, Jr., Project Manager of the BPIP to the NIA Administrator x x x.
3. It may be recalled that the Honorable Court issued an Order dated September 17,
2008, the dispositive portion of which reads:
xxxx
4. It must be stressed that plaintiffs had been fully compensated for that portion of their
property at Monte Vista Homes acquired by the NIA for its project; hence, the Republic
of the Philippines is already the owner thereof. Accordingly, plaintiffs have no right
whatsoever to restrain the Republic through the National Irrigation Administration, to
exercise any of the attributes of its ownership. Moreover, the injunction order does not
authorize plaintiffs to close or block the irrigation canal.
5. It is respectfully informed that the BPIP is now irrigating 3,300 hectares out of the
5,200 hectares irrigable service area and it is possible to irrigate the remaining area of
about1,900 hectares this next cropping season. Thus, it is very critical that the canal
traversing plaintiff’s property be allowed unimpeded operation to [ensure] the continued
irrigation services to the farmers now depending on the BPIP.
PRAYER
WHEREFORE, it is respectfullyprayed that plaintiffs be admonished from closing or
blockingthe irrigation canal traversing their property for lack of authority to do soand to
await the final resolution of this case.
It is likewise prayed that defendant be granted suchother reliefs as are just and
equitable under the premises.
Makati City, Metro Manila for Vigan City, Ilocos Sur, March 25, 2011. 42
To note, the above pleading was followed by another Manifestation and Motion dated
September 5, 2011, wherein petitioner further alleged:
5. In lieu of the hearing, defendantrespectfully seeks clarification on whether the Order
dated September 17, 2008 granting plaintiff’s application for preliminary prohibitory and
mandatory injunction grant them the power to close or block the irrigation canal
constructed by the defendant. Again, it should be stressed that the construction of the
irrigation canal was already completed prior to the issuance of the Order dated
September 17, 2008. More importantly, the portion of plaintiff’s land where the irrigation
canal was constructed is already owned by the defendant prior to the institution ofthis
case because plaintiff’s had already been fully paid for it.
6. Although the import and coverageof the injunction order dated September 17, 2008
is very clear, the said clarification is imperative to put a stop to the on-and-off threat of
the plaintiffs to close or block the irrigation canal, a government property, on the basis

of said injunction order, to the prejudice of the farmers dependent on it for irrigation
services.43
After cautiously reading both pleadings, it appears that petitioner honestly sought
clarification from the trial court the meaning of the writ it issued. To refresh, when the
trial court granted respondents’ application for preliminary prohibitory and
mandatoryinjunction on September 17, 2008 it enjoined petitioner from continuing
further construction works on the irrigation canal located inside Monte Vista and
ordered it to comply with Resolution No. 34, which adopted the GAR recommendations.
As petitioner pointed out, the injunction order does not authorize respondents to close
or block the irrigation canal, the construction of which was, asalleged, already
completed prior to the issuance of the Order. In filing the Manifestation and Motion,
petitioner was just protecting its property rights, claiming that it is already the owner of
the land where the irrigation canal was constructed by virtue of the negotiated sale that
transpired prior to the institution of this case. According to petitioner, respondents
previously blocked the irrigation canal and it was only through the initiative and efforts
of the affected farmers that the same was removed. Faced with another threat of
closure, it only exercised its legal right to seek affirmative relief from the trial court.
Now, on the substantive merits of the case.
R.A. No. 8975, which took effect on November 26, 2000, 44 is the present law that
proscribes lower courts from issuing restraining orders and preliminary injunctions
against government infrastructure projects. In ensuring the expeditious and efficient
implementation and completion of government infrastructure projects, its twin
objectives are: (1) to avoid unnecessary increase in construction, maintenance and/or
repair costs; and (2) to allow the immediate enjoyment ofthe social and economic
benefits of the project.45 Towards these end, Sections3 and 4 of the law provide:
SEC. 3. Prohibition on the Issuance of Temporary Restraining Orders, Preliminary
Injunctions and Preliminary Mandatory Injunctions. – No court, except the Supreme
Court, shall issue any temporary restraining order, preliminary injunction or preliminary
mandatory injunction against the government, or any of its subdivisions, officials or any
person or entity, whether public or private, acting under the government’s direction, to
restrain, prohibit or compel the following acts:
(a) Acquisition, clearance and development of the right-of-way and/or site or location of
any national government project;
(b) Bidding or awarding of contract/project of the national government as defined under
Section 2 hereof;
(c) Commencement, prosecution, execution, implementation, operation of any such
contract or project;
(d) Termination or rescission of any such contract/project; and
(e) The undertaking or authorization of any other lawful activity necessary for such
contract/project.
14
This prohibition shall apply in all cases, disputes or controversies instituted by a private
party, including but not limited to cases filed by bidders or those claiming to have rights
through such bidders involving such contract/project. This prohibition shall not apply
when the matter is of extreme urgency involving a constitutional issue, such that unless
a temporary restraining order is issued, grave injustice and irreparable injury will arise.
The applicant shall file a bond, in an amount to be fixed by the court, which bond shall
accrue in favor of the government if the court should finally decide that the applicant
was not entitled to the relief sought.
If after due hearing the court finds that the award of the contract is null and void, the
court may, if appropriate under the circumstances, award the contract to the qualified
and winning bidder or order a rebidding of the same, without prejudice to any liability
that the guilty party may incur under existing laws.
SEC. 4. Nullity of Writs and Orders. – Any temporary restraining order, preliminary
injunction or preliminary mandatory injunction issued in violation of Section 3 hereof is
void and of no force and effect. (Emphasis supplied)
R.A. No. 8975 exclusively reserves to this Court the power to issue injunctive writs on
government infrastructure projects. A judge who violates the prohibition shall suffer the
penalty of suspension of at least sixty (60) days without pay, in addition to any civil and
criminal liabilities that he or she may incur under existing laws. 46 Through
Administrative Circular No. 11-2000, We instructed all judges and justices of the lower
courts to comply with and respect the prohibition.47
In the case at bar, the parties do not dispute that the Banaoang Pump Irrigation Project
is a government infrastructure project within the contemplation of R.A. No. 8975.
Instead, the focal issue to be resolved is: Does this case for just compensation with
damages one of extreme urgency involving a constitutional issue such that unless a
preliminary prohibitory and mandatory injunction is issued grave injustice and
irreparable injury on the part of respondents will arise? We hold not.
Here, respondents failed to demonstrate that there is a constitutional issue involved,
much less a constitutional issue that is of extreme urgency. The case aims to compel
the Government to acquire more portion of Monte Vista on the bases of the GAR
recommendations, which was espoused by the Sangguniang Bayanof Bantay, Ilocos
Sur, and of the alleged substandard works on the BPIP. The findings in the GAR,
however, are vehemently opposed by petitioner. It asserted that the 20-meter buffer
zone is unnecessary because similar precautionary measures are already sufficiently
installed and that further acquisition of respondents’ property would be grossly
disadvantageous tothe Government as it would cost additional ₱68,370,000.00, more
or less.Petitioner also counters that the claim of substandard works on the BPIP is
speculative, since the contractor has not yet handed over the BPIP as completed and
petitioner is yet to inspect and approve the BPIP according to its design and
specifications. Considering that these issues are very much disputed by the parties, it
cannot be said that respondents’ constitutional right to just compensation was or has
already been breached at the time the complaint was filed or even during the hearing
on their application for preliminary injunction.

As petitioner consistently argues, it has not taken any property of respondents that is
more than what was the subject matter of the negotiated sale executed in 2006. Quite
the contrary, it is respondents who are obliging it to purchase more than what it deems
as necessary for the implementation of the BPIP. In general, however, a property-owner
like respondents has no right to unilaterally determine the extent of his or her property
that should be acquired by the State or to compel it to acquire beyond what is needed,
the conformity of a higher authority like the Sanggunian Bayan notwithstanding. Similar
to cases of voluntary offer to sell (VOS) a property to the Department of Agrarian
Reform (DAR) for coverage under R.A. No. 6657 or the Comprehensive Agrarian
Reform Law,48 the Government cannot be forced to buy land which it finds no necessity
for considering that, in the ultimate analysis, an appropriation of limited government
funds is involved. Like the DAR, the NIA has the power todetermine whether a parcel
of land is needed for the BPIP. Truly, due recognition must be madethat the NIA is an
administrative body with expertise on matters within its specific and specialized
jurisdiction. Presumption of regularity in the performance of its official duty should be
accorded. As this Court held in Republic v. Nolasco:49
More importantly, the Court, the parties, and the public at large are bound to respect
the fact that official acts of the Government, including those performed by governmental
agencies such as the DPWH, are clothed with the presumption of regularity in the
performance of official duty, and cannot be summarily, prematurely and capriciously
set aside. Such presumption is operative not only upon the courts, but on all persons,
especially on those who deal with the government on a frequent basis. There is perhaps
a more cynical attitude fostered within the popular culture, or even through anecdotal
traditions. Yet, such default pessimism is not embodied in our system of laws, which
presumes that the State and its elements act correctly unless otherwise proven. To
infuse within our legal philosophy a contrary, gloomy pessimism would assure that the
State would bog down, wither and die.
Instead, our legal framework allowsthe pursuit of remedies against errors of the State
or its components available to those entitled by reason of damage or injury sustained.
Such litigation involves demonstration of legal capacity to sue or be sued, an exhaustive
trial on the merits, and adjudication that has basis in duly proven facts and law. x x x 50
While the Court concurs with the trial court’s pronouncement that the exercise of the
power of eminent domain does not always result in the taking of property as it may only
result in the imposition of burden upon the owner of the condemned property without
lossof title or possession, We do not agree with its finding, after the conduct of a one-
day hearing relative to the prayer for provisional relief, that there is real necessity of
appropriating more of the respondents’ property by petitioner to ensurethe safety and
security of operating the open irrigation canal. The allegation that respondents will
stand to suffer damages by NIA’s non-acquisition of additional land in Monte Vista is
evidentiary in nature requiring full blown trial on the merits. In the same vein, the CA
likewise erred when it improperly took judicial notice that "the construction and
operation of an irrigation canal scheme has serious and intricate environmental impact
on natural, ecological and socio-economicconditions, which obviously includes lost of
15
land use that would most certainly affect the community where it is implemented" so as
to sustain the trial court’s ruling.
Respondents cannot conveniently invoke the NAPOCOR cases 51 in order to support
their prayer for preliminary injunction. Therein, the Court consistently ruled that
expropriation isnot limited to the acquisition of real property with a corresponding
transferof title or possession and that the right-of-way easement resulting in a restriction
or limitation on property rights over the land traversed by transmission lines also falls
within the ambit of the term "expropriation." Incontrast, this case obviously does not
deal with the installation power lines, which has different nature and effects on private
ownership. The perpetual deprivation of the normal and ordinary use of the
complainants’ proprietary rights, the danger to life and limbs, and the tax implications
which were uniformly considered in the NAPOCOR cases are relatively not palpable in
this case. As regards petitioner’s alleged violation of the Local Government Code, the
same does not suffice to grant the prayer for injunctive relief.
Section 2(c) of the Local GovernmentCode declares the policy of the State "to require
all national agencies and offices to conduct periodic consultations with appropriate local
government units, non-governmental and people's organizations, and other concerned
sectors of the community before any project or program is implemented in their
respective jurisdictions." This provision applies to national government projects
affecting the environmental or ecological balance of the particular community
implementing the project.52 Exactly, Sections 26 and 27 of the Local Government Code
requires prior consultations with the concerned sectors and the prior approval of the
Sanggunian. It was said that the Congress introduced these provisions to emphasize
the legislative concern "for the maintenance of a sound ecology and clean
environment."53
Sections 26 and 27 provide:
Section 26. Duty of National Government Agencies in the Maintenance of Ecological
Balance. - It shall be the duty of every national agency or government-owned or
controlled corporation authorizing or involved in the planning and implementation of any
project or program that may cause pollution, climatic change, depletion of non-
renewable resources, loss of crop land, rangeland, or forest cover, and extinction of
animal or plant species, to consult with the local government units, nongovernmental
organizations, and other sectors concerned and explain the goals and objectives of the
project or program, its impact upon the people and the community in terms of
environmental or ecological balance, and the measures that will be undertaken to
prevent or minimize the adverse effects thereof.
Section 27. Prior Consultations Required. - No project or program shall be implemented
by government authorities unless the consultations mentioned in Sections 2 (c) and 26
hereof are complied with, and prior approval of the sanggunian concerned is obtained:
Provided, That occupants in areas where such projects are to be implemented shall not
be evicted unless appropriate relocation sites have been provided, in accordance with
the provisions of the Constitution.

The projects and programs mentioned in Section 27 should be interpreted to mean
projects and programs whose effects are among those enumerated in Section 26 and
27, to wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3)
may cause the depletion of non renewable resources; (4) may result in loss of crop
land, range-land, or forest cover; (5) may eradicate certain animal or plant species from
the face of the planet; and (6) other projects or programs that may call for the eviction
of a particular group of people residing in the locality where these will be
implemented.54 Preliminarily, it appears that the present case does not fall under any
of these instances; ergo, there is neither a need for prior consultations of concerned
sectors nor prior approval of the Sanggunian.
In support of their entitlement to a preliminary injunction, respondents insist that the
non-observance ofthe buffer zones and other GAR recommendations will spell
calamitous consequences to the future occupants of Monte Vista and tragic disaster
tothe community of the Municipality of Bantay. Allegedly, the worst scenario of such
malfeasance, if not immediately enjoined, is the "devastating irreversible ecological and
environmental effects to the community."55 According to them, petitioner "opted to
pursue a treacherous task which could well endanger the community and its people
with threats of perishing through inundation or deluge of mythical proportion, or through
avalanche of mud and soil."56 Yet in spite of advancing these gruesome depictions, it
is surprising to note that respondents apprised the Court that they "never really
prevented petitioner from finishing the construction of the BPIP canal and even allowed
its operation in deference to the broader interests of the farmer-beneficiaries of the
irrigation project until the issues are finally adjudicated." 57 This admission only proves
that respondents’ arguments are mere suppositions which, as of the time the
provisional remedy was heard and granted, are bereft of undisputed factual moorings.
Certainly, there is no clear and material right of respondents to be protected. There are
no rights in esse since the allegations are merely contingent and may never arise at all.
These are not rights clearly founded on or granted by law or is enforceable as a matter
of law. There is no ostensible right to the final relief prayed for in their complaint.
Respondents failed to satisfy even the basic requirements of the Rules for the issuance
of a preliminary injunction.58 Therefore, the trial court gravely abused its discretion
whenit granted their application for preliminary prohibitory and mandatory injunction. In
so doing, it prematurely decided disputed facts and effectively disposed of the merits
of the case without the benefit of a fullblown trial wherein testimonial and documentary
evidence could be fully and exhaustively presented, heard, and refuted by the parties.
The prevailing rule is that the courts should avoid issuing a writ of preliminary injunction
that would in effect dispose of the main case without trial. Otherwise, there would be a
prejudgment of the main case and a reversal of the rule on the burden of proof since it
would assume the proposition which petitioners are inceptively bound to prove.Indeed,
a complaint for injunctive relief must be construed strictly against the pleader. 59
The Court is more inclined to believe that respondents filed the instant complaint merely
to protect their own private interests.1âwphi1 The claim of alleged effects on the
environmental or ecological balance of Monte Vista and the Municipality of Bantay is
16
but a legal tactic to give an impression that the case has urgent constitutional
repercussions. As a matter of fact, their pleadings unfailingly manifest their true intent.
Respondents vigorously contend that the BPIP would jeopardize the entire
development of Monte Vista, which was earmarked for the development of a residential
subdivision; that when the BPIP commenced construction, the suitability and
marketability of Monte Vista already seriously suffered; and that, in building the BPIP
that has substandard specifications, petitioner and its contractor are likely converting
the remaining areas of Monte Vista not suitable and viable for subdivision project.
Respondents admitted that they are having difficulty selling all the other lots in Monte
Vista allegedly because of the people’s awareness that the irrigation canal is unstable
and does not comply with the GAR recommendations as adopted by the Sangguniang
Bayan. They claim that prospective clients either withdrew from the sale or veered away
from Monte Vista for fear of being considered as part of the statistics if the subdivision
is deluged by the overflow of a substandard irrigation canal. As for those who already
purchased a lot, it is claimed that they now remonstrate to be relocated as far as
possible from the irrigation canal.
Respondents suppose that they deserve additional compensation not only for the buffer
zone to be allocatedfor the stability and safety operation of the irrigation canal but for
the damage it has caused by rendering Monte Vista perceived as less ideal for
residential location.60 The just compensation they are asking is for the actual area taken
by petitioner for the BPIP and those allegedly burdened and rendered of no use to
respondents as a consequence of the required buffer zones and affected by the
purported substandard work of the irrigation canal. Respondents believe that there is
"taking" in the constitutional sense of portions of Monte Vista which is more than that
which petitioner originally declared as required by BPIP. Again, We do not think so.
Nevertheless, this Court emphasizes that this Decision is limited to the issue of
propriety of the issuance of a writ of preliminary prohibitory and mandatory injunction
as an interim relief under the peculiar factual milieu of this case. As the substantive
issues presented and disputed by the parties are not finally resolved, We leave them
to the trial court for resolution after trial on the merits.
WHEREFORE, premises considered, the Petition is GRANTED. The October 22, 2010
Decision and January 31, 2011 Resolution of the Court of Appeals in CA-G.R. SP No.
107962 are REVERSED AND SET ASIDE. The Order dated September 1 7, 2008 and
Supplement to the Order of September 17, 2008 dated September 19, 2008 of Regional
Trial Court, Branch 21, Vigan City, Ilocos Sur, which granted respondents' application
for preliminary prohibitory and mandatory injunction in Civil Case No. 6798-V for Just
Compensation with Damages, are DECLARED VOID AND OF NO FORCE AND
EFFECT.
SO ORDERED.

G.R. No. 92389 September 11, 1991
HON. JEJOMAR C. BINAY and the MUNICIPALITY OF MAKATI, petitioners,
vs.
HON. EUFEMIO DOMINGO and the COMMISSION ON AUDIT, respondents.
The only pivotal issue before Us is whether or not Resolution No. 60, re-enacted under
Resolution No. 243, of the Municipality of Makati is a valid exercise of police power
under the general welfare clause.
The pertinent facts are:
On September 27, 1988, petitioner Municipality, through its Council, approved
Resolution No. 60 which reads:
A RESOLUTION TO CONFIRM AND/OR RATIFY THE ONGOING BURIAL ASSISTANCE PROGRAM
INITIATED BY THE OFFICE OF THE MAYOR, OF EXTENDING FINANCIAL ASSISTANCE OF FIVE
HUNDRED PESOS (P500.00) TO A BEREAVED FAMILY, FUNDS TO BE TAKEN OUT OF
UNAPPROPRIATED AVAILABLE FUNDS EXISTING IN THE MUNICIPAL TREASURY. (Rollo, Annnex "A" p.
39)
Qualified beneficiaries, under the Burial Assistance Program, are bereaved families of
Makati whose gross family income does not exceed two thousand pesos (P2,000.00)
a month. The beneficiaries, upon fulfillment of other requirements, would receive the
amount of five hundred pesos (P500.00) cash relief from the Municipality of Makati.
(Reno, Annex "13", p. 41)
Metro Manila Commission approved Resolution No. 60. Thereafter, the municipal
secretary certified a disbursement fired of four hundred thousand pesos (P400,000.00)
for the implementation of the Burial Assistance Program. (Rollo, Annex "C", p. 43).
Resolution No. 60 was referred to respondent Commission on Audit (COA) for its
expected allowance in audit. Based on its preliminary findings, respondent COA
disapproved Resolution No. 60 and disallowed in audit the disbursement of finds for
the implementation thereof. (Rollo, Annex "D", P. 44)
Two letters for reconsideration (Annexes "E" and "F", Rollo, pp. 45 and 48, respectively)
filed by petitioners Mayor Jejomar Binay, were denied by respondent in its Decision No.
1159, in the following manner:
Your request for reconsideration is predicated on the following grounds, to wit:
1. Subject Resolution No. 60, s. 1988, of the Municipal Council of Makati and the intended disbursements fall within the twin
principles of 'police power and parens patriae and
2. The Metropolitan Manila Commission (MMC), under a Certification, dated June 5, 1989, has already appropriated the amount
of P400,000.00 to implement the Id resolution, and the only function of COA on the matter is to allow the financial assistance in
question.
The first contention is believed untenable. Suffice it to state that:
a statute or ordinance must have a real substantial, or rational relation to the public
safety, health, morals, or general welfare to be sustained as a legitimate exercise of
17
the police power. The mere assertion by the legislature that a statute relates to the
public health, safety, or welfare does not in itself bring the statute within the police
power of a state for there must always be an obvious and real connection between the
actual provisions of a police regulations and its avowed purpose, and the regulation
adopted must be reasonably adapted to accomplish the end sought to be attained. 16
Am. Jur 2d, pp. 542-543; emphasis supplied).
Here, we see no perceptible connection or relation between the objective sought to be
attained under Resolution No. 60, s. 1988, supra, and the alleged public safety, general
welfare, etc. of the inhabitants of Makati.
Anent the second contention, let it be stressed that Resolution No. 60 is still subject to
the limitation that the expenditure covered thereby should be for a public purpose, i.e.,
that the disbursement of the amount of P500.00 as burial assistance to a bereaved
family of the Municipality of Makati, or a total of P400,000.00 appropriated under the
Resolution, should be for the benefit of the whole, if not the majority, of the inhabitants
of the Municipality and not for the benefit of only a few individuals as in the present
case. On this point government funds or property shall be spent or used solely for public
purposes. (Cf. Section 4[2], P.D. 1445). (pp. 50-51, Rollo)
Bent on pursuing the Burial Assistance Program the Municipality of Makati, through its
Council, passed Resolution No. 243, re-affirming Resolution No. 60 (Rollo, Annex "H",
p. 52).
However, the Burial Assistance Program has been stayed by COA Decision No. 1159.
Petitioner, through its Mayor, was constrained to file this special civil action of certiorari
praying that COA Decision No. 1159 be set aside as null and void.
The police power is a governmental function, an inherent attribute of sovereignty, which
was born with civilized government. It is founded largely on the maxims, "Sic utere tuo
et ahenum non laedas and "Salus populi est suprema lex Its fundamental purpose is
securing the general welfare, comfort and convenience of the people.
Police power is inherent in the state but not in municipal corporations (Balacuit v. CFI
of Agusan del Norte, 163 SCRA 182). Before a municipal corporation may exercise
such power, there must be a valid delegation of such power by the legislature which is
the repository of the inherent powers of the State. A valid delegation of police power
may arise from express delegation, or be inferred from the mere fact of the creation of
the municipal corporation; and as a general rule, municipal corporations may exercise
police powers within the fair intent and purpose of their creation which are reasonably
proper to give effect to the powers expressly granted, and statutes conferring powers
on public corporations have been construed as empowering them to do the things
essential to the enjoyment of life and desirable for the safety of the people. (62 C.J.S.,
p. 277). The so-called inferred police powers of such corporations are as much
delegated powers as are those conferred in express terms, the inference of their
delegation growing out of the fact of the creation of the municipal corporation and the
additional fact that the corporation can only fully accomplish the objects of its creation
by exercising such powers. (Crawfordsville vs. Braden, 28 N.E. 849). Furthermore,

municipal corporations, as governmental agencies, must have such measures of the
power as are necessary to enable them to perform their governmental functions. The
power is a continuing one, founded on public necessity. (62 C.J.S. p. 273) Thus, not
only does the State effectuate its purposes through the exercise of the police power but
the municipality does also. (U.S. v. Salaveria, 39 Phil. 102).
Municipal governments exercise this power under the general welfare clause: pursuant
thereto they are clothed with authority to "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." (Sections 91, 149,
177 and 208, BP 337). And under Section 7 of BP 337, "every local government unit
shall exercise the powers expressly granted, those necessarily implied therefrom, as
well as powers necessary and proper for governance such as to promote health and
safety, enhance prosperity, improve morals, and maintain peace and order in the local
government unit, and preserve the comfort and convenience of the inhabitants therein."
Police power is the power to prescribe regulations to promote the health, morals, peace,
education, good order or safety and general welfare of the people. It is the most
essential, insistent, and illimitable of powers. In a sense it is the greatest and most
powerful attribute of the government. It is elastic and must be responsive to various
social conditions. (Sangalang, et al. vs. IAC, 176 SCRA 719). On it depends the security
of social order, the life and health of the citizen, the comfort of an existence in a thickly
populated community, the enjoyment of private and social life, and the beneficial use
of property, and it has been said to be the very foundation on which our social system
rests. (16 C.J.S., P. 896) However, it is not confined within narrow circumstances of
precedents resting on past conditions; it must follow the legal progress of a democratic
way of life. (Sangalang, et al. vs. IAC, supra).
In the case at bar, COA is of the position that there is "no perceptible connection or
relation between the objective sought to be attained under Resolution No. 60, s. 1988,
supra, and the alleged public safety, general welfare. etc. of the inhabitants of Makati."
(Rollo, Annex "G", p. 51).
Apparently, COA tries to re-define the scope of police power by circumscribing its
exercise to "public safety, general welfare, etc. of the inhabitants of Makati."
In the case of Sangalang vs. IAC, supra, We ruled that police power is not capable of
an exact definition but has been, purposely, veiled in general terms to underscore its
all comprehensiveness. Its scope, over-expanding to meet the exigencies of the times,
even to anticipate the future where it could be done, provides enough room for an
efficient and flexible response to conditions and circumstances thus assuring the
greatest benefits.
The police power of a municipal corporation is broad, and has been said to be
commensurate with, but not to exceed, the duty to provide for the real needs of the
18
people in their health, safety, comfort, and convenience as consistently as may be with
private rights. It extends to all the great public needs, and, in a broad sense includes
all legislation and almost every function of the municipal government. It covers a wide
scope of subjects, and, while it is especially occupied with whatever affects the peace,
security, health, morals, and general welfare of the community, it is not limited thereto,
but is broadened to deal with conditions which exists so as to bring out of them the
greatest welfare of the people by promoting public convenience or general prosperity,
and to everything worthwhile for the preservation of comfort of the inhabitants of the
corporation (62 C.J.S. Sec. 128). Thus, it is deemed inadvisable to attempt to frame
any definition which shall absolutely indicate the limits of police power.
COA's additional objection is based on its contention that "Resolution No. 60 is still
subject to the limitation that the expenditure covered thereby should be for a public
purpose, ... should be for the benefit of the whole, if not the majority, of the inhabitants
of the Municipality and not for the benefit of only a few individuals as in the present
case." (Rollo, Annex "G", p. 51).
COA is not attuned to the changing of the times. Public purpose is not unconstitutional
merely because it incidentally benefits a limited number of persons. As correctly pointed
out by the Office of the Solicitor General, "the drift is towards social welfare legislation
geared towards state policies to provide adequate social services (Section 9, Art. II,
Constitution), the promotion of the general welfare (Section 5, Ibid) social justice
(Section 10, Ibid) as well as human dignity and respect for human rights. (Section
11, Ibid." (Comment, p. 12)
The care for the poor is generally recognized as a public duty. The support for the poor
has long been an accepted exercise of police power in the promotion of the common
good.
There is no violation of the equal protection clause in classifying paupers as subject of
legislation. Paupers may be reasonably classified. Different groups may receive varying
treatment. Precious to the hearts of our legislators, down to our local councilors, is the
welfare of the paupers. Thus, statutes have been passed giving rights and benefits to
the disabled, emancipating the tenant-farmer from the bondage of the soil, housing the
urban poor, etc.
Resolution No. 60, re-enacted under Resolution No. 243, of the Municipality of Makati
is a paragon of the continuing program of our government towards social justice. The
Burial Assistance Program is a relief of pauperism, though not complete. The loss of a
member of a family is a painful experience, and it is more painful for the poor to be
financially burdened by such death. Resolution No. 60 vivifies the very words of the late
President Ramon Magsaysay 'those who have less in life, should have more in law."
This decision, however must not be taken as a precedent, or as an official go-signal for
municipal governments to embark on a philanthropic orgy of inordinate dole-outs for
motives political or otherwise. PREMISES CONSIDERED, and with the afore-mentioned caveat, this
petition is hereby GRANTED and the Commission on Audit's Decision No. 1159 is hereby SET ASIDE. SO
ORDERED.

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.
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
19
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
20
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
 21

is no dispute as the title limits the power to regulating, not prohibiting, it would result in 4. The conclusion reached by this Court is not to be interpreted as a retreat from its
the statute being invalid if, as was done by the Municipality of Bocaue, the operation of resolute stand sustaining police power legislation to promote public morals. The
a night club was prohibited. There is a wide gap between the exercise of a regulatory commitment to such an Ideal forbids such a backward step. Legislation of that character
power "to provide for the health and safety, promote the prosperity, improve the is deserving of the fullest sympathy from the judiciary. Accordingly, the judiciary has
morals, 22 in the language of the Administrative Code, such competence extending to not been hesitant to lend the weight of its support to measures that can be
all "the great public needs, 23 to quote from Holmes, and to interdict any calling, characterized as falling within that aspect of the police power. Reference is made by
occupation, or enterprise. In accordance with the well-settled principle of constitutional respondents to Ermita-Malate Hotel and Motel Operators Association, Inc. v. City
construction that between two possible interpretations by one of which it will be free Mayor of Manila. 28 There is a misapprehension as to what was decided by this Court.
from constitutional infirmity and by the other tainted by such grave defect, the former is That was a regulatory measure. Necessarily, there was no valid objection on due
to be preferred. A construction that would save rather than one that would affix the seal process or equal protection grounds. It did not prohibit motels. It merely regulated the
of doom certainly commends itself. We have done so before We do so again. 24 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
3. There is reinforcement to the conclusion reached by virtue of a specific provision of involved is a measure not embraced within the regulatory power but an exercise of an
the recently-enacted Local Government Code. 25 The general welfare clause, a assumed power to prohibit. Moreover, while it was pointed out in the aforesaid Ermita-
reiteration of the Administrative Code provision, is set forth in the first paragraph of Malate Hotel and Motel Operators Association, Inc. decision that there must be a factual
Section 149 defining the powers and duties of the sangguniang bayan. It read as foundation of invalidity, it was likewise made clear that there is no need to satisfy such
follows: "(a) Enact such ordinances and issue such regulations as may be necessary a requirement if a statute were void on its face. That it certainly is if the power to enact
to carry out and discharge the responsibilities conferred upon it by law, and such as such ordinance is at the most dubious and under the present Local Government Code
shall be necessary and proper to provide for the health, safety, comfort and non-existent.
convenience, maintain peace and order, improve public morals, promote the prosperity
and general welfare of the municipality and the inhabitants thereof, and insure the WHEREFORE, the writ of certiorari is granted and the decision of the lower court dated
protection of property therein; ..." 26 There are in addition provisions that may have a January 15, 1976 reversed, set aside, and nullied. Ordinance No. 84, Series of 1975 of
bearing on the question now before this Court. Thus the sangguniang bayan shall "(rr) the Municipality of Bocaue is declared void and unconstitutional. The temporary
Regulate cafes, restaurants, beer-houses, hotels, motels, inns, pension houses and restraining order issued by this Court is hereby made permanent. No costs.
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.
 22

G.R. No. 118127 April 12, 2005 ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA,
PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER
CITY OF MANILA vs. HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, PURPOSES.10
RTC, Manila and MALATE TOURIST DEVELOPMENT
CORPORATION, Respondents. The Ordinance is reproduced in full, hereunder:

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
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

hammer fall, and heavily" in the words of Justice Laurel, and uphold the constitutional 5. Night Clubs
guarantees when faced with laws that, though not lacking in zeal to promote morality,
6. Day Clubs
nevertheless fail to pass the test of constitutionality.
7. Super Clubs
The pivotal issue in this Petition1 under Rule 45 (then Rule 42) of the Revised Rules on
8. Discotheques
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 9. Cabarets
Ordinance No. 7783 (the Ordinance) of the City of Manila.4 10. Dance Halls

The antecedents are as follows: 11. Motels

Private respondent Malate Tourist Development Corporation (MTDC) is a corporation
engaged in the business of operating hotels, motels, hostels and lodging houses.5 It
built and opened Victoria Court in Malate which was licensed as a motel although duly
accredited with the Department of Tourism as a hotel. 6 On 28 June 1993, MTDC filed
a Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or
Temporary Restraining Order7 (RTC Petition) with the lower court impleading as
defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito
L. Atienza, and the members of the City Council of Manila (City Council). MTDC prayed
that the Ordinance, insofar as it includes motels and inns as among its prohibited
establishments, be declared invalid and unconstitutional. 8
Enacted by the City Council9 on 9 March 1993 and approved by petitioner City Mayor
on 30 March 1993, the said Ordinance is entitled–
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF
BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT,
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. 49913 which specifically declared portions of the Ermita-Malate area as a
commercial zone with certain restrictions; (3) The Ordinance does not constitute a
proper exercise of police power as the compulsory closure of the motel business has
no reasonable relation to the legitimate municipal interests sought to be protected; (4)
The Ordinance constitutes an ex post facto law by punishing the operation of Victoria
Court which was a legitimate business prior to its enactment; (5)
23
The Ordinance violates MTDC's constitutional rights in that: (a) it is confiscatory and
constitutes an invasion of plaintiff's property rights; (b) the City Council has no power
to find as a fact that a particular thing is a nuisance per se nor does it have the power
to extrajudicially destroy it; and (6) The Ordinance constitutes a denial of equal
protection under the law as no reasonable basis exists for prohibiting the operation of
motels and inns, but not pension houses, hotels, lodging houses or other similar
establishments, and for prohibiting said business in the Ermita-Malate area but not
outside of this area.14
In their Answer15 dated 23 July 1993, petitioners City of Manila and Lim maintained that
the City Council had the power to "prohibit certain forms of entertainment in order to
protect the social and moral welfare of the community" as provided for in Section 458
(a) 4 (vii) of the Local Government Code,16 which reads, thus:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its inhabitants
pursuant to Section 16 of this Code and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this Code, and shall:
....
(4) Regulate activities relative to the use of land, buildings and structures within the city
in order to promote the general welfare and for said purpose shall:
....
(vii) Regulate the establishment, operation, and maintenance of any entertainment or
amusement facilities, including theatrical performances, circuses, billiard pools, public
dancing schools, public dance halls, sauna baths, massage parlors, and other places
for entertainment or amusement; regulate such other events or activities for amusement
or entertainment, particularly those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the same; or, prohibit certain
forms of amusement or entertainment in order to protect the social and moral welfare
of the community.
Citing Kwong Sing v. City of Manila,17 petitioners insisted that the power of regulation
spoken of in the above-quoted provision included the power to control, to govern and
to restrain places of exhibition and amusement.18
Petitioners likewise asserted that the Ordinance was enacted by the City Council of
Manila to protect the social and moral welfare of the community in conjunction with its
police power as found in Article III, Section 18(kk) of Republic Act No. 409,19 otherwise
known as the Revised Charter of the City of Manila (Revised Charter of Manila) 20 which
reads, thus:
ARTICLE III
THE MUNICIPAL BOARD

. . .
Section 18. Legislative powers. – The Municipal Board shall have the following
legislative powers:
. . .
(kk) To enact all ordinances it may deem necessary and proper for the sanitation and
safety, the furtherance of the prosperity, and the promotion of the morality, peace, good
order, comfort, convenience, and general welfare of the city and its inhabitants, and
such others as may be necessary to carry into effect and discharge the powers and
duties conferred by this chapter; and to fix penalties for the violation of ordinances
which shall not exceed two hundred pesos fine or six months' imprisonment, or both
such fine and imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption of validity; hence,
private respondent had the burden to prove its illegality or unconstitutionality.21
Petitioners also maintained that there was no inconsistency between P.D. 499 and
the Ordinance as the latter simply disauthorized certain forms of businesses and
allowed the Ermita-Malate area to remain a commercial zone. 22 The Ordinance, the
petitioners likewise claimed, cannot be assailed as ex post facto as it was prospective
in operation.23 The Ordinance also did not infringe the equal protection clause and
cannot be denounced as class legislation as there existed substantial and real
differences between the Ermita-Malate area and other places in the City of Manila. 24
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued
an ex-parte temporary restraining order against the enforcement of
the Ordinance.25 And on 16 July 1993, again in an intrepid gesture, he granted the writ
of preliminary injunction prayed for by MTDC.26
After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision,
enjoining the petitioners from implementing the Ordinance. The dispositive portion of
said Decision reads:27
WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series of
1993, of the City of Manila null and void, and making permanent the writ of preliminary
injunction that had been issued by this Court against the defendant. No costs.
SO ORDERED.28
Petitioners filed with the lower court a Notice of Appeal29 on 12 December 1994,
manifesting that they are elevating the case to this Court under then Rule 42 on pure
questions of law.30
On 11 January 1995, petitioners filed the present Petition, alleging that the following
errors were committed by the lower court in its ruling: (1) It erred in concluding that the
subject ordinance is ultra vires, or otherwise, unfair, unreasonable and oppressive
exercise of police power; (2) It erred in holding that
24
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
the
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:
25
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 Manila63 had already taken judicial notice of the "alarming increase in the rate
of prostitution, adultery and fornication in Manila traceable in great part to existence of
motels, which provide a necessary atmosphere for clandestine entry, presence and exit
and thus become the ideal haven for prostitutes and thrill-seekers."64
The object of the Ordinance was, accordingly, the promotion and protection of the
social and moral values of the community. Granting for the sake of argument that the
objectives of the Ordinance are within the scope of the City Council's police powers,
26
the means employed for the accomplishment thereof were unreasonable and unduly
oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make all
reasonable regulations looking to the promotion of the moral and social values of the
community. However, the worthy aim of fostering public morals and the eradication of
the community's social ills can be achieved through means less restrictive of private
rights; it can be attained by reasonable restrictions rather than by an absolute
prohibition. The closing down and transfer of businesses or their conversion into
businesses "allowed" under the Ordinance have no reasonable relation to the
accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated
establishments will not per se protect and promote the social and moral welfare of the
community; it will not in itself eradicate the alluded social ills of prostitution, adultery,
fornication nor will it arrest the spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute
and establishments of the like which the City Council may lawfully prohibit, 65 it is
baseless and insupportable to bring within that classification sauna parlors, massage
parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques, cabarets,
dance halls, motels and inns. This is not warranted under the accepted definitions of
these terms. The enumerated establishments are lawful pursuits which are not per
se offensive to the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs and as venues to
further the illegal prostitution is of no moment. We lay stress on the acrid truth that
sexual immorality, being a human frailty, may take place in the most innocent of places
that it may even take place in the substitute establishments enumerated under Section
3 of the Ordinance. If the flawed logic of the Ordinance were to be followed, in the
remote instance that an immoral sexual act transpires in a church cloister or a court
chamber, we would behold the spectacle of the City of Manila ordering the closure of
the church or court concerned. Every house, building, park, curb, street or even
vehicles for that matter will not be exempt from the prohibition. Simply because there
are no "pure" places where there are impure men. Indeed, even the Scripture and the
Tradition of Christians churches continually recall the presence and universality of sin
in man's history.66
The problem, it needs to be pointed out, is not the establishment, which by its nature
cannot be said to be injurious to the health or comfort of the community and which in
itself is amoral, but the deplorable human activity that may occur within its premises.
While a motel may be used as a venue for immoral sexual activity, it cannot for that
reason alone be punished. It cannot be classified as a house of ill-repute or as a
nuisance per se on a mere likelihood or a naked assumption. If that were so and if that
were allowed, then the Ermita-Malate area would not only be purged of its supposed
social ills, it would be extinguished of its soul as well as every human activity,
reprehensible or not, in its every nook and cranny would be laid bare to the estimation
of the authorities.

The Ordinance seeks to legislate morality but fails to address the core issues of
morality. Try as the Ordinance may to shape morality, it should not foster the illusion
that it can make a moral man out of it because immorality is not a thing, a building or
establishment; it is in the hearts of men. The City Council instead should regulate
human conduct that occurs inside the establishments, but not to the detriment of liberty
and privacy which are covenants, premiums and blessings of democracy.
While petitioners' earnestness at curbing clearly objectionable social ills is
commendable, they unwittingly punish even the proprietors and operators of
"wholesome," "innocent" establishments. In the instant case, there is a clear invasion
of personal or property rights, personal in the case of those individuals desirous of
owning, operating and patronizing those motels and property in terms of the
investments made and the salaries to be paid to those therein employed. If the City of
Manila so desires to put an end to prostitution, fornication and other social ills, it can
instead impose reasonable regulations such as daily inspections of the establishments
for any violation of the conditions of their licenses or permits; it may exercise its
authority to suspend or revoke their licenses for these violations; 67 and it may even
impose increased license fees. In other words, there are other means to reasonably
accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke
bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance
halls, motels and inns in the Ermita-Malate area. In Section 3 thereof, owners and/or
operators of the enumerated establishments are given three (3) months from the date
of approval of the Ordinance within which "to wind up business operations or to transfer
to any place outside the Ermita-Malate area or convert said businesses to other kinds
of business allowable within the area." Further, it states in Section 4 that in cases of
subsequent violations of the provisions of the Ordinance, the "premises of the erring
establishment shall be closed and padlocked permanently."
It is readily apparent that the means employed by the Ordinance for the achievement
of its purposes, the governmental interference itself, infringes on the constitutional
guarantees of a person's fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include
"the right to exist and the right to be free from arbitrary restraint or servitude. The term
cannot be dwarfed into mere freedom from physical restraint of the person of the citizen,
but is deemed to embrace the right of man to enjoy the facilities with which he has been
endowed by his Creator, subject only to such restraint as are necessary for the common
welfare."68 In accordance with this case, the rights of the citizen to be free to use his
faculties in all lawful ways; to live and work where he will; to earn his livelihood by any
lawful calling; and to pursue any avocation are all deemed embraced in the concept of
liberty.69
27
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
28
"regulatory" taking occurs when the government's regulation leaves no reasonable
economically viable use of the property.80
In the landmark case of Pennsylvania Coal v. Mahon,81 it was held that a taking also
could be found if government regulation of the use of property went "too far." When
regulation reaches a certain magnitude, in most if not in all cases there must be an
exercise of eminent domain and compensation to support the act. While property may
be regulated to a certain extent, if regulation goes too far it will be recognized as a
taking.82
No formula or rule can be devised to answer the questions of what is too far and when
regulation becomes a taking. In Mahon, Justice Holmes recognized that it was "a
question of degree and therefore cannot be disposed of by general propositions." On
many other occasions as well, the U.S. Supreme Court has said that the issue of when
regulation constitutes a taking is a matter of considering the facts in each case. The
Court asks whether justice and fairness require that the economic loss caused by public
action must be compensated by the government and thus borne by the public as a
whole, or whether the loss should remain concentrated on those few persons subject
to the public action.83
What is crucial in judicial consideration of regulatory takings is that government
regulation is a taking if it leaves no reasonable economically viable use of property in a
manner that interferes with reasonable expectations for use. 84 A regulation that
permanently denies all economically beneficial or productive use of land is, from the
owner's point of view, equivalent to a "taking" unless principles of nuisance or property
law that existed when the owner acquired the land make the use prohibitable. 85 When
the owner of real property has been called upon to sacrifice all economically beneficial
uses in the name of the common good, that is, to leave his property economically idle,
he has suffered a taking.86
A regulation which denies all economically beneficial or productive use of land will
require compensation under the takings clause. Where a regulation places limitations
on land that fall short of eliminating all economically beneficial use, a taking nonetheless
may have occurred, depending on a complex of factors including the regulation's
economic effect on the landowner, the extent to which the regulation interferes with
reasonable investment-backed expectations and the character of government action.
These inquiries are informed by the purpose of the takings clause which is to prevent
the government from forcing some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole. 87
A restriction on use of property may also constitute a "taking" if not reasonably
necessary to the effectuation of a substantial public purpose or if it has an unduly harsh
impact on the distinct investment-backed expectations of the owner.88
The Ordinance gives the owners and operators of the "prohibited" establishments three
(3) months from its approval within which to "wind up business operations or to transfer
to any place outside of the Ermita-Malate area or convert said businesses to other kinds
of business allowable within the area." The directive to "wind up business operations"

amounts to a closure of the establishment, a permanent deprivation of property, and is
practically confiscatory. Unless the owner converts his establishment to accommodate
an "allowed" business, the structure which housed the previous business will be left
empty and gathering dust. Suppose he transfers it to another area, he will likewise leave
the entire establishment idle. Consideration must be given to the substantial amount of
money invested to build the edifices which the owner reasonably expects to be returned
within a period of time. It is apparent that the Ordinance leaves no reasonable
economically viable use of property in a manner that interferes with reasonable
expectations for use.
The second and third options⎯ to transfer to any place outside of the Ermita-Malate
area or to convert into allowed businesses⎯are confiscatory as well. The penalty of
permanent closure in cases of subsequent violations found in Section 4 of
the Ordinance is also equivalent to a "taking" of private property.
The second option instructs the owners to abandon their property and build another
one outside the Ermita-Malate area. In every sense, it qualifies as a taking without just
compensation with an additional burden imposed on the owner to build another
establishment solely from his coffers. The proffered solution does not put an end to the
"problem," it merely relocates it. Not only is this impractical, it is unreasonable, onerous
and oppressive. The conversion into allowed enterprises is just as ridiculous. How may
the respondent convert a motel into a restaurant or a coffee shop, art gallery or music
lounge without essentially destroying its property? This is a taking of private property
without due process of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be compensated
by the government. The burden on the owner to convert or transfer his business,
otherwise it will be closed permanently after a subsequent violation should be borne by
the public as this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A
zoning ordinance, although a valid exercise of police power, which limits a "wholesome"
property to a use which can not reasonably be made of it constitutes the taking of such
property without just compensation. Private property which is not noxious nor intended
for noxious purposes may not, by zoning, be destroyed without compensation. Such
principle finds no support in the principles of justice as we know them. The police
powers of local government units which have always received broad and liberal
interpretation cannot be stretched to cover this particular taking.
Distinction should be made between destruction from necessity and eminent domain. It
needs restating that the property taken in the exercise of police power is destroyed
because it is noxious or intended for a noxious purpose while the property taken under
the power of eminent domain is intended for a public use or purpose and is therefore
"wholesome."89 If it be of public benefit that a "wholesome" property remain unused or
relegated to a particular purpose, then certainly the public should bear the cost of
reasonable compensation for the condemnation of private property for public use. 90
29
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
30
to the reproach that it does not take into account the realities of the situation. The
constitutional guarantee then is not to be given a meaning that disregards what is, what
does in fact exist. To assure that the general welfare be promoted, which is the end of
law, a regulatory measure may cut into the rights to liberty and property. Those
adversely affected may under such circumstances invoke the equal protection clause
only if they can show that the governmental act assailed, far from being inspired by the
attainment of the common weal was prompted by the spirit of hostility, or at the very
least, discrimination that finds no support in reason." Classification is thus not ruled out,
it being sufficient to quote from the Tuason decision anew "that the laws operate equally
and uniformly on all persons under similar circumstances or that all persons must be
treated in the same manner, the conditions not being different, both in the privileges
conferred and the liabilities imposed. Favoritism and undue preference cannot be
allowed. For the principle is that equal protection and security shall be given to every
person under circumstances which, if not identical, are analogous. If law be looked
upon in terms of burden or charges, those that fall within a class should be treated in
the same fashion, whatever restrictions cast on some in the group equally binding on
the rest.102
Legislative bodies are allowed to classify the subjects of legislation. If the classification
is reasonable, the law may operate only on some and not all of the people without
violating the equal protection clause.103 The classification must, as an indispensable
requisite, not be arbitrary. To be valid, it must conform to the following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.104
In the Court's view, there are no substantial distinctions between motels, inns, pension
houses, hotels, lodging houses or other similar establishments. By definition, all are
commercial establishments providing lodging and usually meals and other services for
the public. No reason exists for prohibiting motels and inns but not pension houses,
hotels, lodging houses or other similar establishments. The classification in the instant
case is invalid as similar subjects are not similarly treated, both as to rights conferred
and obligations imposed. It is arbitrary as it does not rest on substantial distinctions
bearing a just and fair relation to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation of
motels in the Ermita-Malate area but not outside of this area. A noxious establishment
does not become any less noxious if located outside the area.
The standard "where women are used as tools for entertainment" is also discriminatory
as prostitution⎯one of the hinted ills the Ordinance aims to banish⎯is not a profession
exclusive to women. Both men and women have an equal propensity to engage in
prostitution. It is not any less grave a sin when men engage in it. And why would the

assumption that there is an ongoing immoral activity apply only when women are
employed and be inapposite when men are in harness? This discrimination based on
gender violates equal protection as it is not substantially related to important
government objectives.105 Thus, the discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass the test of
consistency with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely empowers local
government units to regulate, and not prohibit, the establishments enumerated in
Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment, operation,
and maintenance of motels, hotels and other similar establishments is found in Section
458 (a) 4 (iv), which provides that:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its inhabitants
pursuant to Section 16 of this Code and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the city
in order to promote the general welfare and for said purpose shall:
. . .
(iv) Regulate the establishment, operation and maintenance of cafes, restaurants,
beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar
establishments, including tourist guides and transports . . . .
While its power to regulate the establishment, operation and maintenance of any
entertainment or amusement facilities, and to prohibit certain forms of amusement or
entertainment is provided under Section 458 (a) 4 (vii) of the Code, which reads as
follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its inhabitants
pursuant to Section 16 of this Code and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this Code, and shall:
. . .
31
(4) Regulate activities relative to the use of land, buildings and structures within the city
in order to promote the general welfare and for said purpose shall:
. . .
(vii) Regulate the establishment, operation, and maintenance of any entertainment or
amusement facilities, including theatrical performances, circuses, billiard pools, public
dancing schools, public dance halls, sauna baths, massage parlors, and other places
for entertainment or amusement; regulate such other events or activities for amusement
or entertainment, particularly those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the same; or, prohibit certain
forms of amusement or entertainment in order to protect the social and moral welfare
of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments, the only power of the City
Council to legislate relative thereto is to regulate them to promote the general welfare.
The Code still withholds from cities the power to suppress and prohibit altogether the
establishment, operation and maintenance of such establishments. It is well to recall
the rulings of the Court in Kwong Sing v. City of Manila106 that:
The word "regulate," as used in subsection (l), section 2444 of the Administrative Code,
means and includes the power to control, to govern, and to restrain; but "regulate"
should not be construed as synonymous with "suppress" or "prohibit." Consequently,
under the power to regulate laundries, the municipal authorities could make proper
police regulations as to the mode in which the employment or business shall be
exercised.107
And in People v. Esguerra,108 wherein the Court nullified an ordinance of the
Municipality of Tacloban which prohibited the selling, giving and dispensing of liquor
ratiocinating that the municipality is empowered only to regulate the same and not
prohibit. The Court therein declared that:
(A)s a general rule when a municipal corporation is specifically given authority or power
to regulate or to license and regulate the liquor traffic, power to prohibit is impliedly
withheld.109
These doctrines still hold contrary to petitioners' assertion110 that they were modified by
the Code vesting upon City Councils prohibitory powers.
Similarly, the City Council exercises regulatory powers over public dancing schools,
public dance halls, sauna baths, massage parlors, and other places for entertainment
or amusement as found in the first clause of Section 458 (a) 4 (vii). Its powers to
regulate, suppress and suspend "such other events or activities for amusement or
entertainment, particularly those which tend to disturb the community or annoy the
inhabitants" and to "prohibit certain forms of amusement or entertainment in order to
protect the social and moral welfare of the community" are stated in the second and
third clauses, respectively of the same Section. The several powers of the City Council
as provided in Section 458 (a) 4 (vii) of the Code, it is pertinent to emphasize, are

separated by semi-colons (;), the use of which indicates that the clauses in which these
powers are set forth are independent of each other albeit closely related to justify being
put together in a single enumeration or paragraph. 111 These powers, therefore, should
not be confused, commingled or consolidated as to create a conglomerated and unified
power of regulation, suppression and prohibition.112
The Congress unequivocably specified the establishments and forms of amusement or
entertainment subject to regulation among which are beerhouses, hotels, motels, inns,
pension houses, lodging houses, and other similar establishments (Section 458 (a) 4
(iv)), public dancing schools, public dance halls, sauna baths, massage parlors, and
other places for entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration
therefore cannot be included as among "other events or activities for amusement or
entertainment, particularly those which tend to disturb the community or annoy the
inhabitants" or "certain forms of amusement or entertainment" which the City Council
may suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are expressly granted to it
and those which are necessarily implied or incidental to the exercise thereof. By reason
of its limited powers and the nature thereof, said powers are to be construed strictissimi
juris and any doubt or ambiguity arising out of the terms used in granting said powers
must be construed against the City Council.113 Moreover, it is a general rule in statutory
construction that the express mention of one person, thing, or consequence is
tantamount to an express exclusion of all others. Expressio unius est exclusio alterium.
This maxim is based upon the rules of logic and the natural workings of human mind.
It is particularly applicable in the construction of such statutes as create new rights or
remedies, impose penalties or punishments, or otherwise come under the rule of strict
construction.114
The argument that the City Council is empowered to enact the Ordinance by virtue of
the general welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter
of Manila is likewise without merit. On the first point, the ruling of the Court in People v.
Esguerra,115 is instructive. It held that:
The powers conferred upon a municipal council in the general welfare clause, or section
2238 of the Revised Administrative Code, refers to matters not covered by the other
provisions of the same Code, and therefore it can not be applied to intoxicating liquors,
for the power to regulate the selling, giving away and dispensing thereof is granted
specifically by section 2242 (g) to municipal councils. To hold that, under the general
power granted by section 2238, a municipal council may enact the ordinance in
question, notwithstanding the provision of section 2242 (g), would be to make the latter
superfluous and nugatory, because the power to prohibit, includes the power to
regulate, the selling, giving away and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later expression of the
legislative will must necessarily prevail and override the earlier law, the Revised Charter
of Manila. Legis posteriores priores contrarias abrogant, or later statute repeals prior
ones which are repugnant thereto. As between two laws on the same subject matter,
which are irreconcilably inconsistent, that which is passed later prevails, since it is the
32
latest expression of legislative will.116 If there is an inconsistency or repugnance
between two statutes, both relating to the same subject matter, which cannot be
removed by any fair and reasonable method of interpretation, it is the latest expression
of the legislative will which must prevail and override the earlier. 117
Implied repeals are those which take place when a subsequently enacted law contains
provisions contrary to those of an existing law but no provisions expressly repealing
them. Such repeals have been divided into two general classes: those which occur
where an act is so inconsistent or irreconcilable with an existing prior act that only one
of the two can remain in force and those which occur when an act covers the whole
subject of an earlier act and is intended to be a substitute therefor. The validity of such
a repeal is sustained on the ground that the latest expression of the legislative will
should prevail.118
In addition, Section 534(f) of the Code states that "All general and special laws, acts,
city charters, decrees, executive orders, proclamations and administrative regulations,
or part or parts thereof which are inconsistent with any of the provisions of this Code
are hereby repealed or modified accordingly." Thus, submitting to petitioners'
interpretation that the Revised Charter of Manila empowers the City Council to prohibit
motels, that portion of the Charter stating such must be considered repealed by the
Code as it is at variance with the latter's provisions granting the City Council mere
regulatory powers.
It is well to point out that petitioners also cannot seek cover under the general welfare
clause authorizing the abatement of nuisances without judicial proceedings. That tenet
applies to a nuisance per se, or one which affects the immediate safety of persons and
property and may be summarily abated under the undefined law of necessity. It can not
be said that motels are injurious to the rights of property, health or comfort of the
community. It is a legitimate business. If it be a nuisance per accidens it may be so
proven in a hearing conducted for that purpose. A motel is not per se a nuisance
warranting its summary abatement without judicial intervention. 119
Notably, the City Council was conferred powers to prevent and prohibit certain activities
and establishments in another section of the Code which is reproduced as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its inhabitants
pursuant to Section 16 of this Code and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective
city government, and in this connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress and impose appropriate penalties
for habitual drunkenness in public places, vagrancy, mendicancy, prostitution,
establishment and maintenance of houses of ill repute, gambling and other

prohibited games of chance, fraudulent devices and ways to obtain money or property,
drug addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the
printing, distribution or exhibition of obscene or pornographic materials or publications,
and such other activities inimical to the welfare and morals of the inhabitants of the
city;
. . .
If it were the intention of Congress to confer upon the City Council the power to prohibit
the establishments enumerated in Section 1 of the Ordinance, it would have so
declared in uncertain terms by adding them to the list of the matters it may prohibit
under the above-quoted Section. The Ordinance now vainly attempts to lump these
establishments with houses of ill-repute and expand the City Council's powers in the
second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach
its prohibitory powers. It is evident that these establishments may only be regulated in
their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the establishments
themselves. That these establishments are recognized legitimate enterprises can be
gleaned from another Section of the Code. Section 131 under the Title on Local
Government Taxation expressly mentioned proprietors or operators of massage clinics,
sauna, Turkish and Swedish baths, hotels, motels and lodging houses as among the
"contractors" defined in paragraph (h) thereof. The same Section also defined
"amusement" as a "pleasurable diversion and entertainment," "synonymous to
relaxation, avocation, pastime or fun;" and "amusement places" to include "theaters,
cinemas, concert halls, circuses and other places of amusement where one seeks
admission to entertain oneself by seeing or viewing the show or performances." Thus,
it can be inferred that the Code considers these establishments as legitimate
enterprises and activities. It is well to recall the maxim reddendo singula singulis which
means that words in different parts of a statute must be referred to their appropriate
connection, giving to each in its place, its proper force and effect, and, if possible,
rendering none of them useless or superfluous, even if strict grammatical construction
demands otherwise. Likewise, where words under consideration appear in different
sections or are widely dispersed throughout an act the same principle applies.120
Not only does the Ordinance contravene the Code, it likewise runs counter to the
provisions of P.D. 499. As correctly argued by MTDC, the statute had already converted
the residential Ermita-Malate area into a commercial area. The decree allowed the
establishment and operation of all kinds of commercial establishments except
warehouse or open storage depot, dump or yard, motor repair shop, gasoline service
station, light industry with any machinery or funeral establishment. The rule is that for
an ordinance to be valid and to have force and effect, it must not only be within the
powers of the council to enact but the same must not be in conflict with or repugnant to
the general law.121 As succinctly illustrated in Solicitor General v. Metropolitan Manila
Authority:122
The requirement that the enactment must not violate existing law explains itself. Local
political subdivisions are able to legislate only by virtue of a valid delegation of
33
legislative power from the national legislature (except only that the power to create their
own sources of revenue and to levy taxes is conferred by the Constitution itself). They
are mere agents vested with what is called the power of subordinate legislation. As
delegates of the Congress, the local government units cannot contravene but must
obey at all times the will of their principal. In the case before us, the enactment in
question, which are merely local in origin cannot prevail against the decree, which has
the force and effect of a statute.123
Petitioners contend that the Ordinance enjoys the presumption of validity. While this
may be the rule, it has already been held that although the presumption is always in
favor of the validity or reasonableness of the ordinance, such presumption must
nevertheless be set aside when the invalidity or unreasonableness appears on the face
of the ordinance itself or is established by proper evidence. The exercise of police
power by the local government is valid unless it contravenes the fundamental law of
the land, or an act of the legislature, or unless it is against public policy or is
unreasonable, oppressive, partial, discriminating or in derogation of a common right. 124
Conclusion
All considered, the Ordinance invades fundamental personal and property rights and
impairs personal privileges. It is constitutionally infirm. The Ordinance contravenes
statutes; it is discriminatory and unreasonable in its operation; it is not sufficiently
detailed and explicit that abuses may attend the enforcement of its sanctions. And not
to be forgotten, the City Council under the Code had no power to enact
the Ordinance and is therefore ultra vires, null and void.
Concededly, the challenged Ordinance was enacted with the best of motives and
shares the concern of the public for the cleansing of the Ermita-Malate area of its social
sins. Police power legislation of such character deserves the full endorsement of the
judiciary ⎯we reiterate our support for it. But inspite of its virtuous aims, the enactment
of the Ordinance has no statutory or constitutional authority to stand on. Local
legislative bodies, in this case, the City Council, cannot prohibit the operation of the
enumerated establishments under Section 1 thereof or order their transfer or
conversion without infringing the constitutional guarantees of due process and equal
protection of laws ⎯not even under the guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial
Court declaring the Ordinance void is AFFIRMED. Costs against petitioners.
SO ORDERED.

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.
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 of the Decision3 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
34
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
35
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:
"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.
36
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
37
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
38
"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 protected69 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
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
39
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.

G.R. No. 148408 July 14, 2006
CONCEPCION PARAYNO, petitioner, vs. JOSE JOVELLANOS and the
MUNICIPALITY OF CALASIAO, PANGASINAN,* respondents.
This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Court
questioning the resolution of the Court of Appeals (CA) which dismissed the petition for
certiorari, mandamus and prohibition, with prayer for issuance of a preliminary and
mandatory injunction, filed by petitioner Concepcion Parayno against respondents Jose
Jovellanos and the Municipality of Calasiao, Pangasinan.
Petitioner was the owner of a gasoline filling station in Calasiao, Pangasinan. In 1989,
some residents of Calasiao petitioned the Sangguniang Bayan (SB) of said municipality
for the closure or transfer of the station to another location. The matter was referred to
the Municipal Engineer, Chief of Police, Municipal Health Officer and the Bureau of Fire
Protection for investigation. Upon their advise, the Sangguniang Bayan recommended
to the Mayor the closure or transfer of location of petitioner's gasoline station. In
Resolution No. 50, it declared:
a) xxx the existing gasoline station is a blatant violation and disregard of existing law to
wit:
The Official Zoning Code of Calasiao, Art. 6, Section 44,1 the nearest school building
which is San Miguel Elementary School and church, the distances are less than 100
meters. No neighbors were called as witnesses when actual measurements were done
by HLURB Staff, Baguio City dated 22 June 1989.
b) The gasoline station remains in thickly populated area with commercial/residential
buildings, houses closed (sic) to each other which still endangers the lives and safety
of the people in case of fire. Moreover, additional selling and storing of several LPG
tanks in the station (sic).
c) The residents of our barangay always complain of the irritating smell of gasoline most
of the time especially during gas filling which tend to expose residents especially
children to frequent colds, asthma, cough and the like nowadays.
d) xxx the gasoline station violated Building and Fire Safety Codes because the station
has 2nd floor storey building used for business rental offices, with iron grilled windows,
no firewalls. It also endangers the lives of people upstairs.
e) It hampers the flow of traffic, the gasoline station is too small and narrow, the
entrance and exit are closed to the street property lines. It couldn't cope situation (sic)
on traffic because the place is a congested area.2
Petitioner moved for the reconsideration of the SB resolution but it was denied. Hence,
she filed a special civil action for prohibition and mandamus with the Regional Trial
Court (RTC) of Dagupan City, Branch 44 against respondents. The case, docketed as
SP Civil Case No. 99-03010-D, was raffled to the sala of Judge Crispin Laron.
40
Petitioner claimed that her gasoline station was not covered by Section 44 of the Official
Zoning Code since it was not a "gasoline service station" but a "gasoline filling station"
governed by Section 21 thereof. She added that the decision of the Housing and Land
Use Regulatory Board (HLURB),3 in a previous case filed by the same respondent
Jovellanos against her predecessor (Dennis Parayno), barred the grounds invoked by
respondent municipality in Resolution No. 50. In the HLURB case, respondent
Jovellanos opposed the establishment of the gas station on the grounds that: (1) it was
within the 100-meter prohibited radius under Section 44 and (2) it posed a pernicious
effect on the health and safety of the people in Calasiao.
After the hearing on the propriety of issuing a writ of preliminary prohibitory and
mandatory injunction, the trial court ruled:
There is no basis for the court to issue a writ of preliminary prohibitory and mandatory
injunction. Albeit, Section 44 of the Official Zoning Code of respondent
municipality does not mention a gasoline filling station, [but] following the
principle of ejusdem generis, a gasoline filling station falls within the ambit of
Section 44.
The gasoline filling station of the petitioner is located under the establishment belonging
to the petitioner and is very near several buildings occupied by several
persons. Justice dictates that the same should not be allowed to continue
operating its business on that particular place. Further, the gasoline filling
station endangers the lives and safety of people because once there is fire, the
establishment and houses nearby will be razed to the ground.4(emphasis supplied)
Petitioner moved for reconsideration of the decision but it was denied by the trial court.
Petitioner elevated the case to the CA via a petition for certiorari, prohibition and
mandamus,5 with a prayer for injunctive relief. She ascribed grave abuse of discretion,
amounting to lack or excess of jurisdiction, on the part of Judge Laron who dismissed
her case.
After the CA dismissed the petition, petitioner filed a motion for reconsideration but the
same was denied. Hence, this appeal.
Before us, petitioner insists that (1) the legal maxim of ejusdem generis did not apply
to her case; (2) the closure/transfer of her gasoline filling station by respondent
municipality was an invalid exercise of the latter's police powers and (3) it was the
principle of res judicata that applied in this case.6
We find merit in the petition.
The Principle of Ejusdem Generis
We hold that the zoning ordinance of respondent municipality made a clear distinction
between "gasoline service station" and "gasoline filling station." The pertinent
provisions read:
 41

xxx xxx xxx
Section 21. Filling Station. A retail station servicing automobiles and other motor
vehicles with gasoline and oil only.7
xxx xxx xxx
Section 42. Service Station. A building and its premises where gasoline oil, grease,
batteries, tires and car accessories may be supplied and dispensed at retail and where,
in addition, the following services may be rendered and sales and no other.
a. Sale and servicing of spark plugs, batteries, and distributor parts;
b. Tire servicing and repair, but not recapping or regrooving;
c. Replacement of mufflers and tail pipes, water hose, fan belts, brake fluids, light bulbs,
fuses, floor mats, seat covers, windshield wipers and wiper blades, grease retainers,
wheel, bearing, mirrors and the like;
d. Radiator cleaning and flushing;
e. Washing and polishing, and sale of automobile washing and polishing materials;
3. That the business of the petitioner [was] one of a gasoline filling station as
defined in Article III, Section 21 of the zoning code and not as a service station
as differently defined under Article 42 of the said official zoning code;
4. That under Section 44 of the official zoning code of Calasiao, the term filling
station as clearly defined under Article III, Section 21, [did] not appear in the
wordings thereof;9(emphasis supplied)
The foregoing were judicial admissions which were conclusive on the municipality, the
party making them.10 Respondent municipality thus could not find solace in the legal
maxim of ejusdem generis11 which means "of the same kind, class or nature." Under
this maxim, where general words follow the enumeration of particular classes of
persons or things, the general words will apply only to persons or things of the same
general nature or class as those enumerated. 12 Instead, what applied in this case was
the legal maxim expressio unius est exclusio alterius which means that the express
mention of one thing implies the exclusion of others. 13 Hence, because of the distinct
and definite meanings alluded to the two terms by the zoning ordinance, respondents
could not insist that "gasoline service station" under Section 44 necessarily included
"gasoline filling station" under Section 21. Indeed, the activities undertaken in a "gas
service station" did not automatically embrace those in a "gas filling station."

f. Grease and lubricating; The Exercise of Police Powers

g. Emergency wiring repairs;
h. Minor servicing of carburators;
i. Adjusting and repairing brakes;
j. Minor motor adjustments not involving removal of the head or crankcase, or raising
the motor.8
xxx xxx xxx
It is evident from the foregoing that the ordinance intended these two terms to be
separate and distinct from each other. Even respondent municipality's counsel admitted
this dissimilarity during the hearing on the application for the issuance of a writ of
preliminary prohibitory and mandatory injunction. Counsel in fact admitted:
1. That there exist[ed] an official zoning code of Calasiao, Pangasinan which [was] not
yet amended;
2. That under Article III of said official zoning code there [were] certain
distinctions made by said municipality about the designation of the gasoline
filling station and that of the gasoline service station as appearing in Article III,
Nos. 21 and 42, [respectively];
Respondent municipality invalidly used its police powers in ordering the closure/transfer
of petitioner's gasoline station. While it had, under RA 7160,14 the power to take actions
and enact measures to promote the health and general welfare of its constituents, it
should have given due deference to the law and the rights of petitioner.
A local government is considered to have properly exercised its police powers only
when the following requisites are met: (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. 15 The first requirement refers to
the equal protection clause and the second, to the due process clause of the
Constitution.16
Respondent municipality failed to comply with the due process clause when it passed
Resolution No. 50. While it maintained that the gasoline filling station of petitioner was
less than 100 meters from the nearest public school and church, the records do not
show that it even attempted to measure the distance, notwithstanding that such
distance was crucial in determining whether there was an actual violation of Section
44. The different local offices that respondent municipality tapped to conduct an
investigation never conducted such measurement either.
Moreover, petitioner's business could not be considered a nuisance which respondent
municipality could summarily abate in the guise of exercising its police powers. The
abatement of a nuisance without judicial proceedings is possible only if it is a
nuisance per se. A gas station is not a nuisance per se or one affecting the immediate

safety of persons and property,17 hence, it cannot be closed down or transferred
summarily to another location.
As a rule, this Court does not pass upon evidence submitted by the parties in the lower
courts.18 We deem it necessary, however, to recall the findings of the HLURB which
petitioner submitted as evidence during the proceedings before the trial court, if only to
underscore petitioner's compliance with the requirements of law before she put up her
gasoline station.
Another factor that should not be left unnoticed is the diligence exercised by [petitioner]
in complying with the requirements of the several laws prior to the actual
implementation of the project as can be attested by the fact that [petitioner] has secured
the necessary building permit and approval of [her] application for authority to relocate
as per the letter of the Energy Regulatory Board xxx.19
On the alleged hazardous effects of the gasoline station to the lives and properties of
the people of Calasiao, we again note:
Relative to the allegations that the project (gasoline station) is hazardous to life and
property, the Board takes cognizance of the respondent's contention that the project "is
not a fire hazard since petroleum products shall be safely stored in underground tanks
and that the installation and construction of the underground tanks shall be in
accordance with the Caltex Engineering Procedures which is true to all gasoline
stations in the country. xxx
Hence, the Board is inclined to believe that the project being hazardous to life
and property is more perceived than factual. For, after all, even the Fire Station
Commander, after studying the plans and specifications of the subject proposed
construction, recommended on 20 January 1989, "to build such buildings after conform
(sic) all the requirements of PP 1185." It is further alleged by the complainants that
the proposed location is "in the heart of the thickly populated residential area of
Calasiao." Again, findings of the [HLURB] staff negate the allegations as the
same is within a designated Business/Commercial Zone per the Zoning
Ordinance. xxx20 (emphasis supplied)
The findings of fact of the HLURB are binding as they are already final and
conclusive vis-à-vis the evidence submitted by respondents.
The Principle of Res Judicata
Petitioner points out that the HLURB decision in the previous case filed against her
predecessor (Dennis Parayno) by respondent Jovellanos had effectively barred the
issues in Resolution No. 50 based on the principle of res judicata. We agree.
Res judicata refers to the rule that a final judgment or decree on the merits by a court
of competent jurisdiction is conclusive of the rights of the parties or their privies in all
later suits on all points and matters determined in the former suit.21 For res judicata to
apply, the following elements must be present: (1) the judgment or order must be final;
(2) the judgment must be on the merits; (3) it must have been rendered by a court
42
having jurisdiction over the subject matter and the parties and (4) there must be,
between the first and second actions, identity of parties, of subject matter and of cause
of action.22
Respondent municipality does not contest the first, second and third requisites.
However, it claims that it was not a party to the HLURB case but only its co-respondent
Jovellanos, hence, the fourth requisite was not met. The argument is untenable.
The absolute identity of parties is not required for the principle of res judicata to
apply.23 A shared identity of interests is sufficient to invoke the application of this
principle.24 The proscription may not be evaded by the mere expedient of including an
additional party.25 Res judicata may lie as long as there is a community of interests
between a party in the first case and a party in the second case although the latter may
not have been impleaded in the first.26
In the assailed resolution of respondent municipality, it raised the same grounds
invoked by its co-respondent in the HLURB: (1) that the resolution aimed to close down
or transfer the gasoline station to another location due to the alleged violation of Section
44 of the zoning ordinance and (2) that the hazards of said gasoline station threatened
the health and safety of the public. The HLURB had already settled these concerns and
its adjudication had long attained finality. It is to the interest of the public that there
should be an end to litigation by the parties over a subject matter already fully and fairly
adjudged. Furthermore, an individual should not be vexed twice for the same cause.27
WHEREFORE, the petition is hereby GRANTED. The assailed resolution of the Court
of the Appeals is REVERSED and SET ASIDE. Respondent Municipality of Calasiao
is hereby directed to cease and desist from enforcing Resolution No. 50 against
petitioner insofar as it seeks to close down or transfer her gasoline station to another
location.
No costs.
SO ORDERED.
 43

G.R. No. 189185, August 16, 2016

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;
WILFREDO MOSQUEDA, MARCELO VILLAGANES, JULIETA LAWAGON,
SECTION 3. DEFINITION OF TERMS:
CRISPIN ALCOMENDRAS, CORAZON SABINADA, VIRGINIA CATA-AG,
FLORENCIA SABANDON, AND LEDEVINA ADLAWAN, Petitioners, v. PILIPINO chanRoblesvirtualLawlibrarya. Aerial Spraying - refers to application of substances through the use of aircraft of any form which
dispenses the substances in the air.
BANANA GROWERS & EXPORTERS ASSOCIATION, INC., DAVAO FRUITS
CORPORATION, AND LAPANDAY AGRICULTURAL AND DEVELOPMENT b. Agricultural Practices - refer to the practices conducted by agricultural entities in relation to their agricultural activities;
CORPORATION, Respondents. c. Agricultural Activities - refer to activities that include, but not limited to, land preparation, seeding, planting, cultivation,
harvesting and bagging;
G.R. No. 189305 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
CITY GOVERNMENT OF DAVAO, Petitioner, v. COURT OF APPEALS, PILIPINO special monitoring to avoid or minimize harm to the environment and inhabitants pursuant to policies and guidelines set forth in
BANANA GROWERS & EXPORTERS ASSOCIATION (PBGEA), DAVAO FRUITS 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
CORPORATION, AND LAPANDAY AGRICULTURAL AND DEVELOPMENT what are usually planted and grown in the plantation to protect those within the adjacent fields, neighboring farms, residential
CORPORATION, Respondent. area, schools and workplaces.

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
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;
ASIDE. SECTION 7. PENAL PROVISION - Violation of any provision of this Ordinance shall be punished as follows:

FURTHER, the Writ of Preliminary Injunction dated 28 January 2008 enjoining the City Government of Davao, and any other chanRoblesvirtualLawlibrarya. First Offense: Fine of P5,000.00 and imprisonment of not less than one (1) month but not more
person or entity acting in its behalf, from enforcing and implementing City Ordinance No. 0309-07, is hereby made permanent. than three (3) months;

SO ORDERED. 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;
Antecedents
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;

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.:ChanRoblesVirtualawlibrary
ORDINANCE NO. 0309-07
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;

Series of 2007 ENACTED, January 23, 2007 by a majority vote of all the Members of the Sangguniang Panlungsod. 2

AN ORDINANCE BANNING AERIAL SPRAYING AS AN AGRICULTURAL City Mayor Rodrigo Duterte approved the ordinance on February 9, 2007. 3 The
PRACTICE IN ALL AGRICULTURAL ACTIVITIES BY ALL AGRICULTURAL ordinance took effect on March 23, 2007 after its publication in the
ENTITIES IN DAVAO CITY newspaper Mindanao Pioneer.4 Pursuant to Section 5 of the ordinance, the ban against
aerial spraying would be strictly enforced three months thereafter.

Be it enacted by the Sangguniang Panlungsod of Davao City in session assembled
that:
SECTION 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";
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:ChanRoblesVirtualawlibrary
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.12
The RTC opined that the City of Davao had validly exercised police power 13 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
44
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 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, 2009.23chanrobleslaw
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:ChanRoblesVirtualawlibrary
I. 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. 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.34chanrobleslaw
In G.R. No. 189305, petitioner City of Davao submits the following as the issues to be
considered and resolved, to wit:
I. 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
45
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 not only
seek to protect and promote human health but also serves as a measure 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-related complaints of the residents need not be proven by medical records
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.
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
humans may result.
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
46
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 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.
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.84
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.
47
I. 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.89
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.
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.95
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).100
The formalities in enacting an ordinance are laid down in Section 53 101 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
48
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:ChanRoblesVirtualawlibrary
Sec. 16. General Welfare. — Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right
of the people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants.
Section 16 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.:ChanRoblesVirtualawlibrary
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. 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.
 49

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 A valid ordinance must not only be enacted within the corporate powers of the local
workers, contending that by imposing the ban against aerial spraying the ordinance government and passed according to the procedure prescribed by law.108 In order to
would place the plantation workers at a higher health risk because the alternatives of declare it as a valid piece of local legislation, it must also comply with the following
either manual or truck-boom spraying method would be adopted; and that exposing the substantive requirements, namely: (1) it must not contravene the Constitution or any
workers to the same risk sought to be prevented by the ordinance would defeat its statute; (2) it must be fair, not oppressive; (3) it must not be partial or discriminatory;
purported purpose. (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
We disagree with the respondents.
In the State's exercise of police power, the property rights of individuals may be
With or without the ban against aerial spraying, the health and safety of plantation
subjected to restraints and burdens in order to fulfill the objectives of the
workers are secured by existing state policies, rules and regulations implemented by
Government.110 A local government unit is considered to have properly exercised its
the FPA, among others, which the respondents are lawfully bound to comply with. The
police powers only if it satisfies the following requisites, to wit: (1) the interests of the
respondents even manifested their strict compliance with these rules, including those
public generally, as distinguished from those of a particular class, require the
in the UN-FAO Guidelines on Good Practice for Aerial Application of Pesticides (Rome
interference of the State; and (2) the means employed are reasonably necessary for
2001). We should note that the Rome 2001 guidelines require the pesticide applicators
the attainment of the object sought to be accomplished and not unduly
to observe the standards provided therein to ensure the health and safety of plantation
oppressive.111 The first requirement refers to the Equal Protection Clause of the
workers. As such, there cannot be any imbalance between the right to health of the
Constitution; the second, to the Due Process Clause of the
residents vis-a-vis the workers even if a ban will be imposed against aerial spraying
Constitution.112chanrobleslaw
and the consequent adoption of other modes of pesticide treatment.
Substantive due process requires that a valid ordinance must have a sufficient
Furthermore, the constitutional right to health and maintaining environmental integrity
justification for the Government's action.113 This means that in exercising police power
are privileges that do not only advance the interests of a group of individuals. The
the local government unit must not arbitrarily, whimsically or despotically enact the
benefits of protecting human health and the environment transcend geographical
ordinance regardless of its salutary purpose. So long as the ordinance realistically
locations and even generations. This is the essence of Sections 15 and 16, Article II of
serves a legitimate public purpose, and it employs means that are reasonably
the Constitution. In Oposa v. Factoran, Jr.107 we declared that the right to a balanced
necessary to achieve that purpose without unduly oppressing the individuals regulated,
and healthful ecology under Section 16 is an issue of transcendental importance with
the ordinance must survive a due process challenge. 114chanrobleslaw
intergenerational implications. It is under this milieu that the questioned ordinance
should be appreciated.
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
Advancing the interests of the residents who are vulnerable to the alleged health risks
after publication of the ordinance. They allege that three months will be inadequate time
due to their exposure to pesticide drift justifies the motivation behind the enactment of
to shift from aerial to truck-mounted boom spraying, and effectively deprives them of
the ordinance. The City of Davao has the authority to enact pieces of legislation that
efficient means to combat the Black Sigatoka disease.
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
The petitioners counter that the period is justified considering the urgency of protecting
enact any ordinance it deems fit to discharge its mandate. A thin but well-defined line
the health of the residents.
separates authority to enact legislations from the method of accomplishing the same.
We find for the respondents.
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 The impossibility of carrying out a shift to another mode of pesticide application within
City may adopt to prevent the purported effects of aerial drift? To resolve this question, three months can readily be appreciated given the vast area of the affected plantations
the Court must dig deeper into the intricate issues arising from these petitions. 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
II in view of the costly financial and civil works required for the conversion. 115 In the
Ordinance No. 0309-07 violates the Due Process Clause assailed decision, the CA appropriately observed:ChanRoblesVirtualawlibrary

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:ChanRoblesVirtualawlibrary
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.
x x x x
Both appellees failed to rebut the foregoing testimonies with empirical findings to the
contrary.
50
x x x x
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.
x x x x
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."116chanroblesvirtuallawlibrary
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.:ChanRoblesVirtualawlibrary
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.
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
51
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
52
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.:ChanRoblesVirtualawlibrary
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,
 53

irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent
environmental degradation;
Secondary drift is associated with pesticide vapor. Pesticide vapor drift is the movement
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 of the gas that forms when an active ingredient evaporates from plants, soil, or other
hazards come from development activities that are supposed to be beneficial to everybody;
surfaces. And while vapor drift is an important issue, it only pertains to certain volatile
WHEREAS, pesticides are by its nature poisonous, it is all the more dangerous when dispensed aerially through aircraft because products. Vapor drift and other forms of secondary drift are product specific. Water-
of unstable wind conditions which in turn makes aerial spray drifting to unintended targets a commonplace.
based sprays will volatize more quickly than oil-based sprays. However, oil-based
WHEREAS, aerial spraying of pesticides is undeniably a nuisance. sprays can drift farther, especially above 95°F, because they are lighter.
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 Understandably, aerial drift occurs using any method of application, be it through
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
airplanes, ground sprayers, airblast sprayers or irrigation systems. 139 Several factors
individuals may be unequal. contribute to the occurrence of drift depending on the method of
WHEREAS, the General Welfare Clause of the Local Government Code empowers Local Government Units to enact ordinances
application, viz.:ChanRoblesVirtualawlibrary
that provide for the health and safety, promote the comfort and convenience of the City and the inhabitants thereof.
AERIAL AIRBLAST GROUND CHEMIGATION
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. Droplet size Crop canopy Droplet size Application height

xxxx Application height Droplet size Boom height Wind speed

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 Wind speed Wind speed Wind speed

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 Swath adjustment

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 Canopy

application; hence, the classification based on the intent of the proposed ordinance
covered all agricultural entities conducting aerial spraying of fungicides that caused Boom length

drift.
Tank mix physical properties
The assailed ordinance thus becomes riddled with several distinction issues.
Source: F.M. Fishel and J.A. Ferrell, "Managing Pesticide Drift," available
A brief discussion on the occurrence of the drift that the ordinance seeks to address is at http://edis.ifas.edu/pi232. citing Pesticide Notes, MSU Extension.
necessary.
The four most common pesticide treatment methods adopted in Davao City are aerial,
Pesticide treatment is based on the use of different methods of application and truck-mounted boom, truck-mounted mechanical, and manual spraying.140 However,
equipment,135 the choice of which methods depend largely on the objective of Ordinance No. 0309-07 imposes the prohibition only against aerial spraying.
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 Davao City justifies the prohibition against aerial spraying by insisting that the
dust particles away from the target area during pesticide application.137 Inevitably, any occurrence of drift causes inconvenience and harm to the residents and degrades the
method of application causes drift, which may either be primary or secondary. As environment. Given this justification, does the ordinance satisfy the requirement that
fittingly described by scholars:138 the classification must rest on substantial distinction?

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.
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
 54

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 We are, therefore, convinced that the total ban on aerial spraying runs afoul with the
the process, the ordinance suffers from being "underinclusive" because the equal protection clause because it does not classify which substances are prohibited
classification does not include all individuals tainted with the same mischief that the law from being applied aerially even as reasonable distinctions should be made in terms of
seeks to eliminate.143 A classification that is drastically underinclusive with respect to the hazards, safety or beneficial effects of liquid substances to the public health,
the purpose or end appears as an irrational means to the legislative end because it livelihood and the environment.147chanroblesvirtuallawlibrary
poorly serves the intended purpose of the law. 144chanrobleslaw
We clarify that the CA did not thereby apply the strict scrutiny approach but only
The claim that aerial spraying produces more aerial drift cannot likewise be sustained evaluated the classification established by the ordinance in relation to the purpose. This
in view of the petitioners' failure to substantiate the same. The respondents have is the essence of the rational basis approach.
refuted this claim, and have maintained that on the contrary, manual spraying produces
The petitioners should be made aware that the rational basis scrutiny is not based on
more drift than aerial treatment145 As such, the decision of prohibiting only aerial
a simple means-purpose correlation; nor does the rational basis scrutiny automatically
spraying is tainted with arbitrariness.
result in a presumption of validity of the ordinance or deference to the wisdom of the
Aside from its being underinclusive, the assailed ordinance also tends to be local legislature.148 To reiterate, aside from ascertaining that the means and purpose of
"overinclusive" because its .impending implementation will affect groups that have no the ordinance are reasonably related, the classification should be based on a
relation to the accomplishment of the legislative purpose. Its implementation will substantial distinction.
unnecessarily impose a burden on a wider range of individuals than those included in
However, we do not subscribe to the respondents' position that there must be a
the intended class based on the purpose of the law. 146chanrobleslaw
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
It can be noted that the imposition of the ban is too broad because the ordinance applies
unit that should only be concerned with general policies in local administration and
irrespective of the substance to be aerially applied and irrespective of the agricultural
should not be restricted by technical concerns that are best left to agencies vested with
activity to be conducted. The respondents admit that they aerially treat their plantations
the appropriate special competencies. The disregard of the pesticide classification is
not only with pesticides but also vitamins and other substances. The imposition of the
not an equal protection issue but is more relevant in another aspect of delegated police
ban against aerial spraying of substances other than fungicides and regardless of the
power that we consider to be more appropriate in a later discussion.
agricultural activity being performed becomes unreasonable inasmuch as it patently
bears no relation to the purported inconvenience, discomfort, health risk and
The overinclusiveness of Ordinance No. 0309-07 may also be traced to its Section 6
environmental danger which the ordinance, seeks to address. The burden now will
by virtue of its requirement for the maintenance of the 30- meter buffer zone. This
become more onerous to various entities including the respondents and even others
requirement applies regardless of the area of the agricultural landholding, geographical
with no connection whatsoever to the intended purpose of the ordinance.
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,
In this respect, the CA correctly observed:ChanRoblesVirtualawlibrary
only large banana plantations could rely on aerial technology because of the financial
Ordinance No. 0309-07 defines "aerial spraying" as the "application of substances capital required therefor.
through the use of aircraft of any form which dispenses the substances in the air."
The establishment and maintenance of the buffer zone will become more burdensome
Inevitably, the ban imposed therein encompasses aerial application of practically all
to the small agricultural landholders because: (1) they have to reserve the 30-meter
substances, not only pesticides or fungicides but including water and all forms of
belt surrounding their property; (2) that will have to be identified through GPS; (3) the
chemicals, regardless of its elements, composition, or degree of safety.
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
Going along with respondent-appellee's ratiocination that the prohibition in the
be cultivated therein based on the mandate that the zone shall be devoted to
Ordinance refers to aerial spraying as a method of spraying pesticides or fungicides,
"diversified trees" taller than what are being grown therein. 149 The arbitrariness of
there appears to be a need to single out pesticides or fungicides in imposing such a
Section 6 all the more becomes evident when the land is presently devoted to the
ban because there is a striking distinction between such chemicals and other
cultivation of root crops and vegetables, and trees or plants slightly taller than the root
substances (including water), particularly with respect to its safety implications to the
crops and vegetables are then to be planted. It is seriously to be doubted whether such
public welfare and ecology.
circumstance will prevent the occurrence of the drift to the nearby residential areas.
x x x x

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:ChanRoblesVirtualawlibrary
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:ChanRoblesVirtualawlibrary
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 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.
55
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.152chanroblesvirtuallawlibrary
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:ChanRoblesVirtualawlibrary
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
56
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:ChanRoblesVirtualawlibrary
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.166chanroblesvirtuallawlibrary
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
 57

common good. For instance, in Social Justice Society (SJS) v. Atienza, Jr.,167 the Court functions with respect to pesticides and other agricultural
validated a zoning ordinance that reclassified areas covered by a large oil depot from chemicals, viz.:ChanRoblesVirtualawlibrary
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 Section 6. Powers and functions. The FPA shall have jurisdiction, on over all existing
Government of Quezon City,168 where the Court declared as valid a city ordinance handlers of pesticides, fertilizers and other agricultural chemical inputs. The FPA shall
ordering the construction of arcades that would ensure the health and safety of the city have the following powers and functions:
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 chanRoblesvirtualLawlibraryx x x x
Court already extended liberality towards the exercise by the local government units;
III. Pesticides and Other Agricultural Chemicals
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 1. To determine specific uses or manners of use for each pesticide or pesticide formulation;

characterized as "an act beyond the pale of good morals" that the local legislative 2. To establish and enforce levels and good agricultural practices for use of pesticides in raw agricultural commodities;
council could validly suppress to protect the well-being of its constituents; and in United
3. To restrict or ban the use of any pesticide or the formulation of certain pesticides in specific areas or during certain periods
States v. Abendan,170 whereby the right of the then Municipality of Cebu to enact an upon evidence that the pesticide is an imminent hazard, has caused, or is causing widespread serious damage to crops, fish or
ordinance relating to sanitation and public health was upheld. livestock, or to public health and environment;

xxxx
The power to legislate under the General Welfare Clause is not meant to be an
5. To inspect the establishment and premises of pesticide handlers to insure that industrial health and safety rules and anti-
invincible authority. In fact, Salaveria and Abendan emphasized the reasonableness pollution regulations are followed;
and consistency of the exercise by the local government units with the laws or policies
6. To enter and inspect farmers' fields to ensure that only the recommended pesticides are used in specific crops in accordance
of the State.171 More importantly, because the police power of the local government with good agricultural practice;
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 x x x x (Emphasis supplied).
granting the power should be construed against the local legislative units. 172 Judicial
Evidently, the FPA was responsible for ensuring the compatibility between the usage
scrutiny comes into play whenever the exercise of police power affects life, liberty or
and the application of pesticides in agricultural activities and the demands for human
property.173 The presumption of validity and the policy of liberality are not restraints on
health and environmental safety. This responsibility includes not only the identification
the power of judicial review in the face of questions about whether an ordinance
of safe and unsafe pesticides, but also the prescription of the safe modes of application
conforms with the Constitution, the laws or public policy, or if it is unreasonable,
in keeping with the standard of good agricultural practices.
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
On the other hand, the enumerated devolved functions to the local government units
laws.174chanrobleslaw
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
Although the Local Government Code vests the municipal corporations with sufficient
from enacting Ordinance No. 0309-07, for otherwise it would be arrogating unto itself
power to govern themselves and manage their affairs and activities, they definitely have
the authority to prohibit the aerial application of pesticides in derogation of the authority
no right to enact ordinances dissonant with the State's laws and policy. The Local
expressly vested in the FPA by Presidential Decree No. 1144.
Government Code has been fashioned to delineate the specific parameters and
limitations to guide each local government unit in exercising its delegated powers with
In enacting Ordinance No. 0309-07 without the inherent and explicit authority to do so,
the view of making the local government unit a fully functioning subdivision of the State
the City of Davao performed an ultra vires act. As a local government unit, the City of
within the constitutional and statutory restraints.175 The Local Government Code is not
Davao could act only as an agent of Congress, and its every act should always conform
intended to vest in the local government unit the blanket authority to legislate upon any
to and reflect the will of its principal.180 As clarified in Batangas CATV, Inc. v. Court of
subject that it finds proper to legislate upon in the guise of serving the common good.
Appeals:181
The function of pesticides control, regulation and development is within the jurisdiction [W]here the state legislature has made provision for the regulation of conduct, it has
of the FPA under Presidential Decree No. 1144.176 The FPA was established in manifested its intention that the subject matter shall be fully covered by the statute, and
recognition of the need for a technically oriented government entity 177 that will protect that a municipality, under its general powers, cannot regulate the same conduct.
the public from the risks inherent in the use of pesticides.178 To perform its mandate, it In Keller vs. State, it was held that: "Where there is no express power in the charter of
was given under Section 6 of Presidential Decree No. 1144 the following powers and 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.184chanroblesvirtuallawlibrary
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 plantations 186 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
58
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.
WHEREFORE, the Court DENIES the consolidated petitions for review on certiorari 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 persons or entities acting in its behalf or under its authority, from enforcing and
implementing Ordinance No. 0309-07; and ORDERS the petitioners to pay the costs of
suit.
SO ORDERED.

G.R. No. 161107 March 12, 2013
HON. MA. LOURDES C. FERNANDO vs. ST. SCHOLASTICA'S COLLEGE and ST.
SCHOLASTICA'S ACADEMY-MARIKINA, INC.
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;
59
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
60
of public safety, health, morals, or the promotion of public convenience and general
prosperity.13
On June 30, 2000, the RTC issued a writ of preliminary injunction, enjoining the
petitioners from implementing the demolition of the fence at SSC’s Marikina property. 14
Ruling of the RTC
On the merits, the RTC rendered a Decision, 15 dated October 2, 2002, granting the
petition and ordering the issuance of a writ of prohibition commanding the petitioners
to permanently desist from enforcing or implementing Ordinance No. 192 on the
respondents’ property.
The RTC agreed with the respondents that the order of the petitioners to demolish the
fence at the SSC property in Marikina and to move it back six (6) meters would amount
to an appropriation of property which could only be done through the exercise of
eminent domain. It held that the petitioners could not take the respondents’ property
under the guise of police power to evade the payment of just compensation.
It did not give weight to the petitioners’ contention that the parking space was for the
benefit of the students and patrons of SSA-Marikina, considering that the respondents
were already providing for sufficient parking in compliance with the standards under
Rule XIX of the National Building Code.
It further found that the 80% see-thru fence requirement could run counter to the
respondents’ right to privacy, considering that the property also served as a residence
of the Benedictine sisters, who were entitled to some sense of privacy in their affairs. It
also found that the respondents were able to prove that the danger to security had no
basis in their case. Moreover, it held that the purpose of beautification could not be
used to justify the exercise of police power.
It also observed that Section 7 of Ordinance No. 192, as amended, provided for
retroactive application. It held, however, that such retroactive effect should not impair
the respondents’ vested substantive rights over the perimeter walls, the six-meter strips
of land along the walls, and the building, structures, facilities, and improvements, which
would be destroyed by the demolition of the walls and the seizure of the strips of land.
The RTC also found untenable the petitioners’ argument that Ordinance No. 192 was
a remedial or curative statute intended to correct the defects of buildings and structures,
which were brought about by the absence or insufficiency of laws. It ruled that the
assailed ordinance was neither remedial nor curative in nature, considering that at the
time the respondents’ perimeter wall was built, the same was valid and legal, and the
ordinance did not refer to any previous legislation that it sought to correct.
The RTC noted that the petitioners could still take action to expropriate the subject
property through eminent domain.
The RTC, thus, disposed:

WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby issued
commanding the respondents to permanently desist from enforcing or implementing
Ordinance No. 192, Series of 1994, as amended, on petitioners’ property in question
located at Marikina Heights, Marikina, Metro Manila.
No pronouncement as to costs.
SO ORDERED.16
Ruling of the CA
In its December 1, 2003 Decision, the CA dismissed the petitioners’ appeal and
affirmed the RTC decision.
The CA reasoned out that the objectives stated in Ordinance No. 192 did not justify the
exercise of police power, as it did not only seek to regulate, but also involved the taking
of the respondents’ property without due process of law. The respondents were bound
to lose an unquantifiable sense of security, the beneficial use of their structures, and a
total of 3,762.36 square meters of property. It, thus, ruled that the assailed ordinance
could not be upheld as valid as it clearly invaded the personal and property rights of
the respondents and "[f]or being unreasonable, and undue restraint of trade." 17
It noted that although the petitioners complied with procedural due process in enacting
Ordinance No. 192, they failed to comply with substantive due process. Hence, the
failure of the respondents to attend the public hearings in order to raise objections did
not amount to a waiver of their right to question the validity of the ordinance.
The CA also shot down the argument that the five-meter setback provision for parking
was a legal easement, the use and ownership of which would remain with, and inure
to, the benefit of the respondents for whom the easement was primarily intended. It
found that the real intent of the setback provision was to make the parking space free
for use by the public, considering that such would cease to be for the exclusive use of
the school and its students as it would be situated outside school premises and beyond
the school administration’s control.
In affirming the RTC ruling that the ordinance was not a curative statute, the CA found
that the petitioner failed to point out any irregularity or invalidity in the provisions of the
National Building Code that required correction or cure. It noted that any correction in
the Code should be properly undertaken by the Congress and not by the City Council
of Marikina through an ordinance.
The CA, thus, disposed:
WHEREFORE, all foregoing premises considered, the instant appeal is
DENIED.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
61
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 16 22 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:
62
(1) Fences on the front yard – shall be no more than one (1) meter in height. Fences in
excess of one (1) meter shall be an open fence type, at least eighty percent (80%) see-
thru;
xxx xxx xxx
Section 5. In no case shall walls and fences be built within the five (5) meter parking
area allowance located between the front monument line and the building line of
commercial and industrial establishments and educational and religious institutions.
The respondents, thus, sought to prohibit the petitioners from requiring them to (1)
demolish their existing concrete wall, (2) build a fence (in excess of one meter) which
must be 80% see-thru, and (3) build the said fence six meters back in order to provide
a parking area.
Setback Requirement
The Court first turns its attention to Section 5 which requires the five-meter setback of
the fence to provide for a parking area. The petitioners initially argued that the
ownership of the parking area to be created would remain with the respondents as it
would primarily be for the use of its students and faculty, and that its use by the public
on non-school days would only be incidental. In their Reply, however, the petitioners
admitted that Section 5 was, in fact, invalid for being repugnant to the Constitution. 31
The Court agrees with the latter position.
The Court joins the CA in finding that the real intent of the setback requirement was to
make the parking space free for use by the public, considering that it would no longer
be for the exclusive use of the respondents as it would also be available for use by the
general public. Section 9 of Article III of the 1987 Constitution, a provision on eminent
domain, provides that private property shall not be taken for public use without just
compensation.
The petitioners cannot justify the setback by arguing that the ownership of the property
will continue to remain with the respondents. It is a settled rule that neither the
acquisition of title nor the total destruction of value is essential to taking. In fact, it is
usually in cases where the title remains with the private owner that inquiry should be
made to determine whether the impairment of a property is merely regulated or
amounts to a compensable taking.32 The Court is of the view that the implementation
of the setback requirement would be tantamount to a taking of a total of 3,762.36 square
meters of the respondents’ private property for public use without just compensation,
in contravention to the Constitution.
Anent the objectives of prevention of concealment of unlawful acts and "un-
neighborliness," it is obvious that providing for a parking area has no logical connection
to, and is not reasonably necessary for, the accomplishment of these goals.
Regarding the beautification purpose of the setback requirement, it has long been
settled that the State may not, under the guise of police power, permanently divest

owners of the beneficial use of their property solely to preserve or enhance the
aesthetic appearance of the community.33 The Court, thus, finds Section 5 to be
unreasonable and oppressive as it will substantially divest the respondents of the
beneficial use of their property solely for aesthetic purposes. Accordingly, Section 5 of
Ordinance No. 192 is invalid.
The petitioners, however, argue that the invalidity of Section 5 was properly cured by
Zoning Ordinance No. 303,34 Series of 2000, which classified the respondents’ property
to be within an institutional zone, under which a five-meter setback has been required.
The petitioners are mistaken. Ordinance No. 303, Series of 2000, has no bearing to the
case at hand.
The Court notes with displeasure that this argument was only raised for the first time
on appeal in this Court in the petitioners’ Reply. Considering that Ordinance No. 303
was enacted on December 20, 2000, the petitioners could very well have raised it in
their defense before the RTC in 2002. The settled rule in this jurisdiction is that a party
cannot change the legal theory of this case under which the controversy was heard and
decided in the trial court. It should be the same theory under which the review on appeal
is conducted. Points of law, theories, issues, and arguments not adequately brought to
the attention of the lower court will not be ordinarily considered by a reviewing court,
inasmuch as they cannot be raised for the first time on appeal. This will be offensive to
the basic rules of fair play, justice, and due process.35
Furthermore, the two ordinances have completely different purposes and subjects.
Ordinance No. 192 aims to regulate the construction of fences, while Ordinance No.
303 is a zoning ordinance which classifies the city into specific land uses. In fact, the
five-meter setback required by Ordinance No. 303 does not even appear to be for the
purpose of providing a parking area.
By no stretch of the imagination, therefore, can Ordinance No. 303, "cure" Section 5 of
Ordinance No. 192.
In any case, the clear subject of the petition for prohibition filed by the respondents is
Ordinance No. 192 and, as such, the precise issue to be determined is whether the
petitioners can be prohibited from enforcing the said ordinance, and no other, against
the respondents.
80% See-Thru Fence Requirement
The petitioners argue that while Section 5 of Ordinance No. 192 may be invalid, Section
3.1 limiting the height of fences to one meter and requiring fences in excess of one
meter to be at least 80% see-thru, should remain valid and enforceable against the
respondents.
The Court cannot accommodate the petitioner.
For Section 3.1 to pass the rational relationship test, the petitioners must show the
reasonable relation between the purpose of the police power measure and the means
63
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.
 64

Considering that Sections 3.1 and 5 of Ordinance No. 192 cannot be enforced against WHEREFORE, the petition is DENIED. The October 2, 2002 Decision of the Regional
the respondents, it is no longer necessary to rule on the issue of retroactivity. The Court Trial Court in SCA Case No. 2000-381-MK is AFFIRMED but MODIFIED to read as
shall, nevertheless, pass upon the issue for the sake of clarity. follows:

"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
WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby issued
commanding the respondents to permanently desist from enforcing or implementing
Sections 3.1 and 5 of Ordinance No. 192, Series of 1994, as amended, on the
petitioners' property in question located in Marikina Heights, Marikina, Metro Manila.
No pronouncement as to costs.
SO ORDERED.

The petitioners argue that Ordinance No. 192 is a curative statute as it aims to correct
or cure a defect in the National Building Code, namely, its failure to provide for adequate
guidelines for the construction of fences. They ultimately seek to remedy an
insufficiency in the law. In aiming to cure this insufficiency, the petitioners attempt to
add lacking provisions to the National Building Code. This is not what is contemplated
by curative statutes, which intend to correct irregularities or invalidity in the law. The
petitioners fail to point out any irregular or invalid provision. As such, the assailed
ordinance cannot qualify as curative and retroactive in nature.

At any rate, there appears to be no insufficiency in the National Building Code with
respect to parking provisions in relation to the issue of the respondents. Paragraph
1.16.1, Rule XIX of the Rules and Regulations of the said code requires an educational
institution to provide one parking slot for every ten classrooms. As found by the lower
courts, the respondents provide a total of 76 parking slots for their 80 classrooms and,
thus, had more than sufficiently complied with the law.

Ordinance No. 192, as amended, is, therefore, not a curative statute which may be
applied retroactively.

Separability

Sections 3.1 and 5 of Ordinance No. 192, as amended, are, thus, invalid and cannot
be enforced against the respondents. Nonetheless, "the general rule is that where part
of a statute is void as repugnant to the Constitution, while another part is valid, the valid
portion, if susceptible to being separated from the invalid, may stand and be
enforced."42 Thus, the other sections of the assailed ordinance remain valid and
enforceable.

Conclusion

Considering the invalidity of Sections 3.1 and 5, it is clear that the petitioners were
acting in excess of their jurisdiction in enforcing Ordinance No. 192 against the
respondents. The CA was correct in affirming the decision of the RTC in issuing the
writ of prohibition. The petitioners must permanently desist from enforcing Sections 3.1
and 5 of the assailed ordinance on the respondents' property in Marikina City.

G.R. No. 94759 January 21, 1991
TECHNOLOGY DEVELOPERS, INC., petitioner, vs. COURT OF APPEALS, HON.
NARCISO T. ATIENZA as Presiding Judge, Bulacan, RTC, and HON. VICENTE
CRUZ, Acting Mayor and the MUNICIPALITY OF STA. MARIA,
BULACAN, respondents.
The authority of the local executive to protect the community from pollution is the center
of this controversy.
The antecedent facts are related in the appealed decision of the Court of Appeals as
follows:
Petitioner, a domestic private corporation engaged in the manufacture and export of
charcoal briquette, received a letter dated February 16, 1989 from private respondent
acting mayor Pablo N. Cruz, ordering the full cessation of the operation of the
petitioner's plant located at Guyong, Sta. Maria, Bulacan, until further order. The letter
likewise requested Plant Manager Mr. Armando Manese to bring with him to the office
of the mayor on February 20, 1989 the following: a) Building permit; b) Mayor's permit;
c) Region III-Pollution of Environment and Natural Resources Anti-Pollution Permit; and
of other document.
At the requested conference on February 20, 1989, petitioner, through its
representative, undertook to comply with respondent's request for the production of the
required documents. In compliance with said undertaking, petitioner commenced to
secure "Region III-Department of Environmental and Natural Resources Anti-Pollution
Permit," although among the permits previously secured prior to the operation of
petitioner's plant was a "Temporary Permit to Operate Air Pollution Installation" issued
by the then National Pollution Control Commission (now Environmental Management
Bureau) and is now at a stage where the Environmental Management Bureau is trying
to determine the correct kind of anti-pollution devise to be installed as part of petitioner's
request for the renewal of its permit.
Petitioner's attention having been called to its lack of mayor's permit, it sent its
representatives to the office of the mayor to secure the same but were not entertained.
On April 6, 1989, without previous and reasonable notice upon petitioner, respondent
acting mayor ordered the Municipality's station commander to padlock the premises of
petitioner's plant, thus effectively causing the stoppage of its operation.
Left with no recourse, petitioner instituted an action for certiorari,
prohibition, mandamus with preliminary injunction against private respondent with the
court a quo which is presided by the respondent judge. In its prayer for the issuance of
a writ of preliminary mandatory injunction, it alleged therein that the closure order was
issued in grave abuse of discretion.
During the hearing of the application for the issuance of a writ of preliminary injunction
on April 14, 1989, herein parties adduced their respective evidences. The respondent
65
judge, April 19, 1989, found that petitioner is entitled to the issuance of the writ of
preliminary mandatory injunction, hence, it ordered as follows:
In view of the foregoing, upon petitioner's posting of a bond in the amount of P50,000.00
to answer for such damages that respondents may sustain should petitioner eventually
be found not entitled to the injunctive relief hereby issued, let a PRELIMINARY
MANDATORY INJUNCTION issue ordering the respondent Hon. Pablo N. Cruz, and
other person acting in his behalf and stead to immediately revoke his closure order
dated April 6, 1989, and allow petitioner to resume its normal business operations until
after the instant case shall have been adjudicated on the merits without prejudice to the
inherent power of the court to alter, modify or even revoke this order at any given time.
SO ORDERED.
The writ of preliminary mandatory injunction was issued on April 28, 1989, upon
petitioner's posting a bond in the amount of P50,000.00.
Private respondent filed his motion for reconsideration dated May 3, 1989. Said motion
for reconsideration was heard on May 30, 1989. Petitioner's counsel failed to appear
and the hearing proceeded with the Provincial Prosecutor presenting his evidence. The
following documents were submitted:
a) Exhibit "A", Investigation report on the Technology Developers Inc., prepared by one
Marivic Guina, and her conclusion and recommendation read:
Due to the manufacturing process and nature of raw materials used, the fumes coming
from the factory may contain particulate matters which are hazardous to the health of
the people. As such, the company should cease operating until such a time that the
proper air pollution device is installed and operational.
b) Exhibits "B", "B-1", "B-2", three (3) sheets of coupon bond containing signatures of
residents of Barangay Guyong, Sta. Maria, Bulacan;
c) Exhibit "B-3", a letter addressed to Hon. Roberto Pagdanganan Governor of the
Province of Bulacan, dated November 22, 1988, complaining about the smoke coming
out of the chimney of the company while in operation.
Reassessing all the evidence adduced, the lower court, on June 14, 1989, issued an
order (a) setting aside the order dated April 28, 1989, which granted a Writ of
Preliminary Mandatory Injunction, and (b) dissolving the writ consequently issued.
A motion for reconsideration dated July 6, 1989 was filed by petitioner. Said motion
drew an opposition dated July 19, 1989 from private respondent.
Resolving the petitioner's motion for reconsideration, the respondent judge issued an
order dated August 9, 1989, denying said motion for reconsideration. 1
Hence a petition for certiorari and prohibition with preliminary injunction was filed by
petitioner in the Court of Appeals seeking to annul and set aside (a) the order issued
by the trial court on June 14, 1989, setting aside the order dated April 28, 1989, and (b)
 66

the order of August 9, 1989, denying petitioner's motion for reconsideration of the order
of June 14, 1989. In due course the petition was denied for lack of merit by the appellate
court in a decision dated January 26, 1990.2 A motion for reconsideration thereof filed
by petitioner was denied on August 10, 1990.
Thus, the herein petition for review on certiorari filed with this Court. Six errors are
alleged to have been committed by the appellate court which may be synthesized into
the singular issue of whether or not the appellate court committed a grave abuse of
discretion in rendering its question decision and resolution.
The petition is devoid of merit.
The well-known rule is that the matter of issuance of a writ of preliminary injunction is
addressed to the sound judicial discretion of the trial court and its action shall not be
disturbed on appeal unless it is demonstrated that it acted without jurisdiction or in
excess of jurisdiction or otherwise, in grave abuse of its discretion. By the same token
the court that issued such a preliminary relief may recall or dissolve the writ as the
circumstances may warrant.
To the mind of the Court the following circumstances militate against the maintenance
of the writ of preliminary injunction sought by petitioner:
1. No mayor's permit had been secured. While it is true that the matter of determining
whether there is a pollution of the environment that requires control if not prohibition of
the operation of a business is essentially addressed to the then National Pollution
Control Commission of the Ministry of Human Settlements, now the Environmental
Management Bureau of the Department of Environment and Natural Resources, it must
be recognized that the mayor of a town has as much responsibility to protect its
inhabitants from pollution, and by virture of his police power, he may deny the
application for a permit to operate a business or otherwise close the same unless
appropriate measures are taken to control and/or avoid injury to the health of the
residents of the community from the emissions in the operation of the business.
were written by one person,5 appears to be true in some instances, (particularly as
among members of the same family), but on the whole the many signatures appear to
be written by different persons. The certification of the barrio captain of said barrio that
he has not received any complaint on the matter 6 must be because the complaint was
sent directly to the Governor through the Acting Mayor.
4. The closure order of the Acting Mayor was issued only after an investigation was
made by Marivic Guina who in her report of December 8, 1988 observed that the fumes
emitted by the plant of petitioner goes directly to the surrounding houses and that no
proper air pollution device has been installed.7
5. Petitioner failed to produce a building permit from the municipality of Sta. Maria, but
instead presented a building permit issued by an official of Makati on March 6,1987. 8
6. While petitioner was able to present a temporary permit to operate by the then
National Pollution Control Commission on December 15, 1987, the permit was good
only up to May 25, 1988.9 Petitioner had not exerted any effort to extend or validate its
permit much less to install any device to control the pollution and prevent any hazard
to the health of the residents of the community.
All these factors justify the dissolution of the writ of preliminary injunction by the trial
court and the appellate court correctly upheld the action of the lower court.
Petitioner takes note of the plea of petitioner focusing on its huge investment in this
dollar-earning industry.1âwphi1 It must be stressed however, that concomitant with the
need to promote investment and contribute to the growth of the economy is the equally
essential imperative of protecting the health, nay the very lives of the people, from the
deleterious effect of the pollution of the environment.
WHEREFORE, the petition is DENIED, with costs against petitioner.
SO ORDERED.

2. The Acting Mayor, in a letter of February 16, 1989, called the attention of petitioner
to the pollution emitted by the fumes of its plant whose offensive odor "not only pollute
the air in the locality but also affect the health of the residents in the area," so that
petitioner was ordered to stop its operation until further orders and it was required to
bring the following:

(1) Building permit;

(2) Mayor's permit; and

(3) Region III-Department of Environment and Natural Resources Anti-Pollution

permit.3

3. This action of the Acting Mayor was in response to the complaint of the residents of
Barangay Guyong, Sta. Maria, Bulacan, directed to the Provincial Governor through
channels.4 The alleged NBI finding that some of the signatures in the four-page petition

G.R. No. 95279 July 25, 1991
ESTATE OF GREGORIA FRANCISCO, herein represented by SILVESTRE F.
TAN, Administrator, petitioner,
vs.
HON. COURT OF APPEALS, HON. SALVADOR A. MEMORACION, in his capacity
as Presiding Judge of the Regional Trial Court of Isabela, Basilan Province,
Branch 2, MUNICIPALITY OF ISABELA, Basilan Province, herein represented by
BENJAMIN VALENCIA, in his capacity as Municipal Mayor, Isabela, Basilan
Province, ROGELIO L. IGOT, FELICISIMO PIOQUINTO, DANIEL PADINAS,
ANTONIO CABANGON, FELIX ROXAS, BENJAMIN FERRER, GREGORIO
TABADA, EFREN DELOS REYES, FLORENCIO HUGO, JESUS FRANCISCO,
ALFREDO TUBILAG, PABLO ANDRES, respondents.
Litigated herein is a quonset building situated in Port Area, Strong Boulevard, Isabela,
Basilan, which was ordered demolished by respondent Municipal Mayor, Benjamin
Valencia. Respondent municipal employees implemented the demolition, for which
reason they are also impleaded.
The quonset was constructed by the American Liberation Forces in 1944. It was
purchased in 1946 by Gregoria Francisco, who died in 1976. It stands on a lot owned
by the Philippine Ports Authority and faces the municipal wharf. By virtue of
Proclamation No. 83 issued by President Elpidio Quirino, said land was declared for
the exclusive use of port facilities.
On 10 January 1989, the Philippine Ports Authority (Port of Zamboanga) issued to Tan
Gin San, surviving spouse of Gregoria Francisco, a permit to occupy the lot where the
building stands for a period of one (1) year, to expire on 31 December 1989. The
permittee was using the quonset for the storage of copra.
On 8 May 1989, Respondent Mayor, through respondent Municipal Action Officer,
notified Tan Gin San by mail to remove or relocate its quonset building, citing Zoning
Ordinance No. 147 of the municipality; noting its antiquated and dilapidated structure;
and. stressing the "clean-up campaign on illegal squatters and unsanitary surroundings
along Strong Boulevard." This was followed by another letter of 19 May 1989 of the
same tenor.
Since the notifications remained unheeded by petitioner, Respondent Mayor ordered
the demolition on 24 May 1989.
Aggrieved, petitioner sought a Writ of Prohibition with Injunction and Damages before
the Regional Trial Court of Basilan, Branch 2 (docketed as S.P. No. 4).
On 7 August 1989, the Trial Court1 denied the Writ of Prohibition and upheld the power
of respondent Mayor to order the demolition without judicial authority, adverting to
Zoning Ordinance No. 147 of the Municipality of Isabela, Basilan. Petitioner duly
interposed an appeal.
67
On 6 September 1989, petitioner's quonset building was completely demolished (Rollo,
p. 49). In its place sprang shanties and nipa huts, photographs of which have been
attached to petitioner's Memorandum.
On 25 January 1990, the Court of Appeals (in CA-G.R. SP No. 18822)2 initially reversed
the Trial Court and issued a Writ of Prohibition. It ruled that Respondent Mayor was not
vested with power to order summarily, and without any judicial proceeding, the
demolition of the quonset building, which was not a nuisance per se and that petitioner
is in legal possession of the land on which the building stands by virtue of the permit
issued by the Philippine Ports Authority (Zamboanga Province). The restoration to
petitioner of the building materials removed upon demolition, and the payment to it of
attorney's fees of P10,000.00, were also ordered.
However, upon reconsideration sought by reswever, upon reconsideration sought by
respondent officials, Respondent Court3 reversed itself on 13 June 1990 stating that
"although Municipal Mayor Valencia initially issued an order demolition without judicial
process, the deficiency was remedied when appellant (petitioners herein) filed a petition
for prohibition and injunction and was heard on oral argument after appellees
(respondent officials) filed their answer." Respondent Court then quashed the Writ of
Prohibition and set aside the order of restitution and payment of attorney's fees.
Petitioner's plea for reconsideration having been denied, it is now before us seeking a
reversal.
The focal issue for determination is whether or not Respondent Mayor could summarily,
without judicial process, order the demolition of petitioner's quonset building.
Respondent justify the demolition in the exercise of police power and for reasons of
health, safety and general welfare. It also relies on Ordinance No. 147 (CA Records,
pp. 85-104) of the Municipality of Isabela. For its part petitioner consistently denies to
the Mayor, such power, invoking provisions of the Local Government Code.
Ordinance No. 147, enacted on 27 December 1977, and relied upon by respondents,
is entitled "An Ordinance Establishing Comprehensive Zoning Regulations for the
Municipality of Isabela . . ." It is not disputed that the quonset building, which is being
used for the storage of copra, is located outside the zone for warehouses. It is referred
to in Ordinance as a non-conforming structure, which should be relocated. And in the
event that an immediate relocation of the building can not be accomplished, Section 16
of the Ordinance provides:
A certificate of non-conformance for all non-conforming uses shall be applied for by the
owner or agent of the property involved within twelve (12) months from the approval of
this Ordinance, otherwise the non-conforming use may be condemned or removed at
the owner's expense.
Even granting that petitioner failed to apply for a Certificate of Non-conformance, the
foregoing provision should not be interpreted as authorizing the summary removal of a
non-conforming building by the municipal government. For if it does, it must be struck
 68

down for being in contravention of the requirements of due process, as originally held
by the respondent Court.
Moreover, the enforcement and administration of the provisions of the Ordinance
resides with the Zoning Administrator (Article VII, Secs. 1 and 2, Ordinance No. 147).
It is said official who may call upon the City Fiscal to institute the necessary legal
proceedings to enforce the provisions of the Ordinance (id., Sec. 2, Ibid.). And any
person aggrieved by the decision of the Zoning Administrator regarding the
enforcement of the Ordinance may appeal to the Board of Zoning Appeals (id., Sec.
7, Ibid.).
That a summary remedy can not be resorted to is further evident from the penal
provisions of said Ordinance, reading:
Any person who violates any of the provisions of this ordinance shall, upon conviction,
be punished by a fine of not less than fifty pesos (P50.00) but not more than two
hundred pesos (P200.00) or by imprisonment of not less than one (1) month but not
exceeding six (6) months, or both, at the discretion of the Court . . . (ibid., Sec. 11).
[Emphasis ours].
Violation of a municipal ordinance neither empowers the Municipal Mayor to avail of
extra-judicial remedies.1avvphi1 On the contrary, the Local Government Code imposes
upon him the duty "to cause to be instituted judicial proceedings in connection with the
violation of ordinances" (Local Government Code, Sec. 141 [2] [t]).
Respondents can not 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 (Monteverde v.
Generoso, 52 Phil. 123 [1982]). The storage of copra in the quonset building is a
legitimate business. By its nature, it can not be said to be injurious to rights of property,
of health or of comfort of the community.1âwphi1 If it be a nuisance per accidens it may
be so proven in a hearing conducted for that purpose. It is not per se a nuisance
warranting its summary abatement without judicial intervention.
The provincial governor, district engineer or district health officer is not authorized to
destroy private property consisting of dams and fishponds summarily and without any
judicial proceedings whatever under the pretense that such private property constitutes
a nuisance. A dam or a fishery constructed in navigable rivers is not a nuisance per se.
A dam or fishpond may be a nuisance per accidens where it endangers or impairs the
health or depreciates property by causing water to become stagnant. (Monteverde v.
Generoso, supra).
[Municipal councils] do not have the power to find as a fact that a particular thing is a
nuisance when such thing is not a nuisance per se nor can they authorize the extra
judicial condemnation and destruction of that as a nuisance which, in its nature,
situation or use is not such. These things must be determined in the ordinary courts of
law. In the present case, . . . the ice factory of the plaintiff is not a nuisance per se. It is
a legitimate industry . . . . If it be in fact a nuisance due to the manner of its operation,
that question cannot be determined by a mere resolution of the board. The petitioner is
entitled to a fair and impartial heating before a judicial tribunal. (Iloilo Cold Storage v.
Municipal Council, 24 Phil. 47 [1913]).
Petitioner was in lawful possession of the lot and quonset building by virtue of a permit
from the Philippine Ports Authority (Port of Zamboanga) when demolition was effected.
It was not squatting on public land. Its property was not of trifling value. It was entitled
to an impartial hearing before a tribunal authorized to decide whether the quonset
building did constitute a nuisance in law. There was no compelling necessity for
precipitate action. It follows then that respondent public officials of the Municipality of
Isabela, Basilan, transcended their authority in abating summarily petitioner's quonset
building. They had deprived petitioner of its property without due process of law. The
fact that petitioner filed a suit for prohibition and was subsequently heard thereon will
not cure the defect, as opined by the Court of Appeals, the demolition having been a fait
accompli prior to hearing and the authority to demolish without a judicial order being a
prejudicial issue.
For the precipitate demolition, therefore, petitioner should be entitled to just
compensation, the amount of which is for the Trial Court to determine. We are not
inclined to grant petitioner damages, however, as it simply ignored the demand to
remove or relocate its quonset building.
WHEREFORE, the judgment under review of respondent Court of Appeals, dated 13
June 1990, is SET ASIDE; its original Decision, promulgated on 25 January 1990, is
REINSTATED; and this case is ordered REMANDED to the Regional Trial Court of
Basilan, Branch 2, for the determination of the just compensation due petitioner for the
demolition of its quonset building.
SO ORDERED.

While the Sangguniang Bayan may provide for the abatement of a nuisance (Local
Government Code, Sec. 149 [ee]), it can not declare a particular thing as a nuisance per
se and order its condemnation. The nuisance can only be so adjudged by judicial
determination.

G.R. No. 177807 October 11, 2011
EMILIO GANCAYCO, Petitioner,
vs.
CITY GOVERNMENT OF QUEZON CITY AND METRO MANILA DEVELOPMENT
AUTHORITY, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 177933
METRO MANILA DEVELOPMENT AUTHORITY, Petitioner,
vs.
JUSTICE EMILIO A. GANCAYCO (Retired), Respondent,
Before us are consolidated Petitions for Review under Rule 45 of the Rules of Court
assailing the Decision1 promulgated on 18 July 2006 and the Resolution2 dated 10 May
2007 of the Court of Appeals in CA-G.R. SP No. 84648.
The Facts
In the early 1950s, retired Justice Emilio A. Gancayco bought a parcel of land located
at 746 Epifanio delos Santos Avenue (EDSA),3 Quezon City with an area of 375 square
meters and covered by Transfer Certificate of Title (TCT) No. RT114558.
On 27 March 1956, the Quezon City Council issued Ordinance No. 2904, entitled "An
Ordinance Requiring the Construction of Arcades, for Commercial Buildings to be
Constructed in Zones Designated as Business Zones in the Zoning Plan of Quezon
City, and Providing Penalties in Violation Thereof." 4
An arcade is defined as any portion of a building above the first floor projecting over
the sidewalk beyond the first storey wall used as protection for pedestrians against rain
or sun.5
Ordinance No. 2904 required the relevant property owner to construct an arcade with
a width of 4.50 meters and height of 5.00 meters along EDSA, from the north side of
Santolan Road to one lot after Liberty Avenue, and from one lot before Central
Boulevard to the Botocan transmission line.
At the outset, it bears emphasis that at the time Ordinance No. 2904 was passed by
the city council, there was yet no building code passed by the national legislature. Thus,
the regulation of the construction of buildings was left to the discretion of local
government units. Under this particular ordinance, the city council required that the
arcade is to be created by constructing the wall of the ground floor facing the sidewalk
a few meters away from the property line. Thus, the building owner is not allowed to
construct his wall up to the edge of the property line, thereby creating a space or shelter
under the first floor. In effect, property owners relinquish the use of the space for use
as an arcade for pedestrians, instead of using it for their own purposes.
69
The ordinance was amended several times. On 8 August 1960, properties located at
the Quezon City-San Juan boundary were exempted by Ordinance No. 60-4477 from
the construction of arcades. This ordinance was further amended by Ordinance No. 60-
4513, extending the exemption to commercial buildings from Balete Street to Seattle
Street. Ordinance No. 6603 dated 1 March 1966 meanwhile reduced the width of the
arcades to three meters for buildings along V. Luna Road, Central District, Quezon City.
The ordinance covered the property of Justice Gancayco. Subsequently, sometime in
1965, Justice Gancayco sought the exemption of a two-storey building being
constructed on his property from the application of Ordinance No. 2904 that he be
exempted from constructing an arcade on his property.
On 2 February 1966, the City Council acted favorably on Justice Gancayco’s request
and issued Resolution No. 7161, S-66, "subject to the condition that upon notice by the
City Engineer, the owner shall, within reasonable time, demolish the enclosure of said
arcade at his own expense when public interest so demands." 6
Decades after, in March 2003, the Metropolitan Manila Development Authority (MMDA)
conducted operations to clear obstructions along the sidewalk of EDSA in Quezon City
pursuant to Metro Manila Council’s (MMC) Resolution No. 02-28, Series of 2002.7 The
resolution authorized the MMDA and local government units to "clear the sidewalks,
streets, avenues, alleys, bridges, parks and other public places in Metro Manila of all
illegal structures and obstructions."8
On 28 April 2003, the MMDA sent a notice of demolition to Justice Gancayco alleging
that a portion of his building violated the National Building Code of the Philippines
(Building Code)9 in relation to Ordinance No. 2904. The MMDA gave Justice Gancayco
fifteen (15) days to clear the portion of the building that was supposed to be an arcade
along EDSA.10
Justice Gancayco did not comply with the notice. Soon after the lapse of the fifteen (15)
days, the MMDA proceeded to demolish the party wall, or what was referred to as the
"wing walls," of the ground floor structure. The records of the present case are not
entirely clear on the extent of the demolition; nevertheless, the fact of demolition was
not disputed. At the time of the demolition, the affected portion of the building was being
used as a restaurant.
On 29 May 2003, Justice Gancayco filed a Petition 11 with prayer for a temporary
restraining order and/or writ of preliminary injunction before the Regional Trial Court
(RTC) of Quezon City, docketed as Civil Case No. Q03-49693, seeking to prohibit the
MMDA and the City Government of Quezon City from demolishing his property. In his
Petition,12 he alleged that the ordinance authorized the taking of private property
without due process of law and just compensation, because the construction of an
arcade will require 67.5 square meters from the 375 square meter property. In addition,
he claimed that the ordinance was selective and discriminatory in its scope and
application when it allowed the owners of the buildings located in the Quezon City-San
Juan boundary to Cubao Rotonda, and Balete to Seattle Streets to construct arcades
at their option. He thus sought the declaration of nullity of Ordinance No. 2904 and the

payment of damages. Alternately, he prayed for the payment of just compensation
should the court hold the ordinance valid.
The City Government of Quezon City claimed that the ordinance was a valid exercise
of police power, regulating the use of property in a business zone. In addition, it pointed
out that Justice Gancayco was already barred by estoppel, laches and prescription.
Similarly, the MMDA alleged that Justice Gancayco could not seek the nullification of
an ordinance that he had already violated, and that the ordinance enjoyed the
presumption of constitutionality. It further stated that the questioned property was a
public nuisance impeding the safe passage of pedestrians. Finally, the MMDA claimed
that it was merely implementing the legal easement established by Ordinance No.
2904.13
The RTC rendered its Decision on 30 September 2003 in favor of Justice Gancayco.14 It
held that the questioned ordinance was unconstitutional, ruling that it allowed the taking
of private property for public use without just compensation. The RTC said that because
67.5 square meters out of Justice Gancayco’s 375 square meters of property were
being taken without compensation for the public’s benefit, the ordinance was
confiscatory and oppressive. It likewise held that the ordinance violated owners’ right
to equal protection of laws. The dispositive portion thus states:
WHEREFORE, the petition is hereby granted and the Court hereby declares Quezon
City Ordinance No. 2094,15 Series of 1956 to be unconstitutional, invalid and void ab
initio. The respondents are hereby permanently enjoined from enforcing and
implementing the said ordinance, and the respondent MMDA is hereby directed to
immediately restore the portion of the party wall or wing wall of the building of the
petitioner it destroyed to its original condition.
IT IS SO ORDERED.
The MMDA thereafter appealed from the Decision of the trial court. On 18 July 2006,
the Court of Appeals (CA) partly granted the appeal. 16 The CA upheld the validity of
Ordinance No. 2904 and lifted the injunction against the enforcement and
implementation of the ordinance. In so doing, it held that the ordinance was a valid
exercise of the right of the local government unit to promote the general welfare of its
constituents pursuant to its police powers. The CA also ruled that the ordinance
established a valid classification of property owners with regard to the construction of
arcades in their respective properties depending on the location. The CA further stated
that there was no taking of private property, since the owner still enjoyed the beneficial
ownership of the property, to wit:
Even with the requirement of the construction of arcaded sidewalks within his
commercial lot, appellee still retains the beneficial ownership of the said property. Thus,
there is no "taking" for public use which must be subject to just compensation. While
the arcaded sidewalks contribute to the public good, for providing safety and comfort to
passersby, the ultimate benefit from the same still redounds to appellee, his commercial
establishment being at the forefront of a busy thoroughfare like EDSA. The arcaded
70
sidewalks, by their nature, assure clients of the commercial establishments thereat
some kind of protection from accidents and other hazards. Without doubt, this sense of
protection can be a boon to the business activity therein engaged. 17
Nevertheless, the CA held that the MMDA went beyond its powers when it demolished
the subject property. It further found that Resolution No. 02-28 only refers to sidewalks,
streets, avenues, alleys, bridges, parks and other public places in Metro Manila, thus
excluding Justice Gancayco’s private property. Lastly, the CA stated that the MMDA is
not clothed with the authority to declare, prevent or abate nuisances. Thus, the
dispositive portion stated:
WHEREFORE, the appeals are PARTLY GRANTED. The Decision dated September
30, 2003 of the Regional Trial Court, Branch 224, Quezon City, is MODIFIED, as
follows:
1) The validity and constitutionality of Ordinance No. 2094, 18 Series of 1956, issued by
the City Council of Quezon City, is UPHELD; and
2) The injunction against the enforcement and implementation of the said Ordinance is
LIFTED.
SO ORDERED.
This ruling prompted the MMDA and Justice Gancayco to file their respective Motions
for Partial Reconsideration.19
On 10 May 2007, the CA denied the motions stating that the parties did not present
new issues nor offer grounds that would merit the reconsideration of the Court. 20
Dissatisfied with the ruling of the CA, Justice Gancayco and the MMDA filed their
respective Petitions for Review before this Court. The issues raised by the parties are
summarized as follows:
I. WHETHER OR NOT JUSTICE GANCAYCO WAS ESTOPPED FROM ASSAILING
THE VALIDITY OF ORDINANCE NO. 2904.
II. WHETHER OR NOT ORDINANCE NO. 2904 IS CONSTITUTIONAL.
III. WHETHER OR NOT THE WING WALL OF JUSTICE GANCAYCO’S BUILDING IS
A PUBLIC NUISANCE.
IV. WHETHER OR NOT THE MMDA LEGALLY DEMOLISHED THE PROPERTY OF
JUSTICE GANCAYCO.
The Court’s Ruling
Estoppel
The MMDA and the City Government of Quezon City both claim that Justice Gancayco
was estopped from challenging the ordinance, because, in 1965, he asked for an
exemption from the application of the ordinance. According to them, Justice Gancayco

thereby recognized the power of the city government to regulate the construction of
buildings.
To recall, Justice Gancayco questioned the constitutionality of the ordinance on two
grounds: (1) whether the ordinance "takes" private property without due process of law
and just compensation; and (2) whether the ordinance violates the equal protection of
rights because it allowed exemptions from its application.
On the first ground, we find that Justice Gancayco may still question the constitutionality
of the ordinance to determine whether or not the ordinance constitutes a "taking" of
private property without due process of law and just compensation. It was only in 2003
when he was allegedly deprived of his property when the MMDA demolished a portion
of the building. Because he was granted an exemption in 1966, there was no "taking"
yet to speak of.
Moreover, in Acebedo Optical Company, Inc. v. Court of Appeals, 21 we held:
It is therefore decisively clear that estoppel cannot apply in this case. The fact that
petitioner acquiesced in the special conditions imposed by the City Mayor in subject
business permit does not preclude it from challenging the said imposition, which is ultra
vires or beyond the ambit of authority of respondent City Mayor. Ultra vires acts or acts
which are clearly beyond the scope of one's authority are null and void and cannot be
given any effect. The doctrine of estoppel cannot operate to give effect to an act which
is otherwise null and void or ultra vires. (Emphasis supplied.)
Recently, in British American Tobacco v. Camacho,22 we likewise held:
We find that petitioner was not guilty of estoppel. When it made the undertaking to
comply with all issuances of the BIR, which at that time it considered as valid, petitioner
did not commit any false misrepresentation or misleading act. Indeed, petitioner cannot
be faulted for initially undertaking to comply with, and subjecting itself to the operation
of Section 145(C), and only later on filing the subject case praying for the declaration
of its unconstitutionality when the circumstances change and the law results in what it
perceives to be unlawful discrimination. The mere fact that a law has been relied upon
in the past and all that time has not been attacked as unconstitutional is not a ground
for considering petitioner estopped from assailing its validity. For courts will pass upon
a constitutional question only when presented before it in bona fide cases for
determination, and the fact that the question has not been raised before is not a valid
reason for refusing to allow it to be raised later. (Emphasis supplied.)
Anent the second ground, we find that Justice Gancayco may not question the
ordinance on the ground of equal protection when he also benefited from the
exemption. It bears emphasis that Justice Gancayco himself requested for an
exemption from the application of the ordinance in 1965 and was eventually granted
one. Moreover, he was still enjoying the exemption at the time of the demolition as there
was yet no valid notice from the city engineer. Thus, while the ordinance may be
attacked with regard to its different treatment of properties that appears to be similarly
situated, Justice Gancayco is not the proper person to do so.
71
Zoning and the regulation of the
construction of buildings are valid
exercises of police power .
In MMDA v. Bel-Air Village Association,23 we discussed the nature of police powers
exercised by local government units, to wit:
Police power is an inherent attribute of sovereignty. It has been defined as the power
vested by the Constitution in the legislature to make, ordain, and establish all manner
of wholesome and reasonable laws, statutes and ordinances, either with penalties or
without, not repugnant to the Constitution, as they shall judge to be for the good and
welfare of the commonwealth, and for the subjects of the same. The power is plenary
and its scope is vast and pervasive, reaching and justifying measures for public health,
public safety, public morals, and the general welfare.
It bears stressing that police power is lodged primarily in the National Legislature. It
cannot be exercised by any group or body of individuals not possessing legislative
power. The National Legislature, however, may delegate this power to the President
and administrative boards as well as the lawmaking bodies of municipal corporations
or local government units. Once delegated, the agents can exercise only such
legislative powers as are conferred on them by the national lawmaking body.
To resolve the issue on the constitutionality of the ordinance, we must first determine
whether there was a valid delegation of police power. Then we can determine whether
the City Government of Quezon City acted within the limits of the delegation.
It is clear that Congress expressly granted the city government, through the city council,
police power by virtue of Section 12(oo) of Republic Act No. 537, or the Revised Charter
of Quezon City,24 which states:
To make such further ordinances and regulations not repugnant to law as may be
necessary to carry into effect and discharge the powers and duties conferred by this
Act and such as it shall deem necessary and proper to provide for the health and safety,
promote the prosperity, improve the morals, peace, good order, comfort, and
convenience of the city and the inhabitants thereof, and for the protection of property
therein; and enforce obedience thereto with such lawful fines or penalties as the City
Council may prescribe under the provisions of subsection (jj) of this section.
Specifically, on the powers of the city government to regulate the construction of
buildings, the Charter also expressly provided that the city government had the power
to regulate the kinds of buildings and structures that may be erected within fire limits
and the manner of constructing and repairing them.25
With regard meanwhile to the power of the local government units to issue zoning
ordinances, we apply Social Justice Society v. Atienza.26 In that case, the Sangguniang
Panlungsod of Manila City enacted an ordinance on 28 November 2001 reclassifying
certain areas of the city from industrial to commercial. As a result of the zoning

ordinance, the oil terminals located in those areas were no longer allowed. Though the
oil companies contended that they stood to lose billions of pesos, this Court upheld the
power of the city government to pass the assailed ordinance, stating:
In the exercise of police power, property rights of individuals may be subjected to
restraints and burdens in order to fulfil the objectives of the government. Otherwise
stated, the government may enact legislation that may interfere with personal liberty,
property, lawful businesses and occupations to promote the general welfare. However,
the interference must be reasonable and not arbitrary. And to forestall arbitrariness, the
methods or means used to protect public health, morals, safety or welfare must have a
reasonable relation to the end in view.
The means adopted by the Sanggunian was the enactment of a zoning ordinance
which reclassified the area where the depot is situated from industrial to commercial. A
zoning ordinance is defined as a local city or municipal legislation which logically
arranges, prescribes, defines and apportions a given political subdivision into specific
land uses as present and future projection of needs. As a result of the zoning, the
continued operation of the businesses of the oil companies in their present location will
no longer be permitted. The power to establish zones for industrial, commercial and
residential uses is derived from the police power itself and is exercised for the protection
and benefit of the residents of a locality. Consequently, the enactment of Ordinance
No. 8027 is within the power of the Sangguniang Panlungsod of the City of Manila and
any resulting burden on those affected cannot be said to be unjust... (Emphasis
supplied)
In Carlos Superdrug v. Department of Social Welfare and Development, 27 we also held:
For this reason, when the conditions so demand as determined by the legislature,
property rights must bow to the primacy of police power because property rights, though
sheltered by due process, must yield to general welfare.
Police power as an attribute to promote the common good would be diluted
considerably if on the mere plea of petitioners that they will suffer loss of earnings and
capital, the questioned provision is invalidated. Moreover, in the absence of evidence
demonstrating the alleged confiscatory effect of the provision in question, there is no
basis for its nullification in view of the presumption of validity which every law has in its
favor. (Emphasis supplied.)
In the case at bar, it is clear that the primary objectives of the city council of Quezon
City when it issued the questioned ordinance ordering the construction of arcades were
the health and safety of the city and its inhabitants; the promotion of their prosperity;
and the improvement of their morals, peace, good order, comfort, and the convenience.
These arcades provide safe and convenient passage along the sidewalk for commuters
and pedestrians, not just the residents of Quezon City. More especially so because the
contested portion of the building is located on a busy segment of the city, in a business
zone along EDSA.
72
Corollarily, the policy of the Building Code,28 which was passed after the Quezon City
Ordinance, supports the purpose for the enactment of Ordinance No. 2904. The
Building Code states:
Section 102. Declaration of Policy. – It is hereby declared to be the policy of the State
to safeguard life, health, property, and public welfare, consistent with the principles of
sound environmental management and control; and to this end, make it the purpose of
this Code to provide for all buildings and structures, a framework of minimum standards
and requirements to regulate and control their location, site, design quality of materials,
construction, occupancy, and maintenance.
Section 1004 likewise requires the construction of arcades whenever existing or zoning
ordinances require it. Apparently, the law allows the local government units to
determine whether arcades are necessary within their respective jurisdictions.
Justice Gancayco argues that there is a three-meter sidewalk in front of his property
line, and the arcade should be constructed above that sidewalk rather than within his
property line. We do not need to address this argument inasmuch as it raises the issue
of the wisdom of the city ordinance, a matter we will not and need not delve into.
To reiterate, at the time that the ordinance was passed, there was no national building
code enforced to guide the city council; thus, there was no law of national application
that prohibited the city council from regulating the construction of buildings, arcades
and sidewalks in their jurisdiction.
The "wing walls" of the building are not
nuisances per se.
The MMDA claims that the portion of the building in question is a nuisance per se.
We disagree.
The fact that in 1966 the City Council gave Justice Gancayco an exemption from
constructing an arcade is an indication that the wing walls of the building are not
nuisances per se. The wing walls do not per se immediately and adversely affect the
safety of persons and property. The fact that an ordinance may declare a structure
illegal does not necessarily make that structure a nuisance.
Article 694 of the Civil Code defines nuisance as any act, omission, establishment,
business, condition or property, or anything else that (1) injures or endangers the health
or safety of others; (2) annoys or offends the senses; (3) shocks, defies or disregards
decency or morality; (4) obstructs or interferes with the free passage of any public
highway or street, or any body of water; or, (5) hinders or impairs the use of property.
A nuisance may be per se or per accidens. A nuisance per se is that which affects the
immediate safety of persons and property and may summarily be abated under the
undefined law of necessity.29

Clearly, when Justice Gancayco was given a permit to construct the building, the city
council or the city engineer did not consider the building, or its demolished portion, to
be a threat to the safety of persons and property. This fact alone should have warned
the MMDA against summarily demolishing the structure.
Neither does the MMDA have the power to declare a thing a nuisance. Only courts of
law have the power to determine whether a thing is a nuisance. In AC Enterprises v.
Frabelle Properties Corp.,30 we held:
We agree with petitioner's contention that, under Section 447(a)(3)(i) of R.A. No. 7160,
otherwise known as the Local Government Code, the Sangguniang Panglungsod is
empowered to enact ordinances declaring, preventing or abating noise and other forms
of nuisance. It bears stressing, however, that the Sangguniang Bayan cannot declare
a particular thing as a nuisance per se and order its condemnation. It does not have
the power to find, as a fact, that a particular thing is a nuisance when such thing is not
a nuisance per se; nor can it authorize the extrajudicial condemnation and destruction
of that as a nuisance which in its nature, situation or use is not such. Those things must
be determined and resolved in the ordinary courts of law. If a thing be in fact, a nuisance
due to the manner of its operation, that question cannot be determined by a mere
resolution of the Sangguniang Bayan. (Emphasis supplied.)
MMDA illegally demolished
the property of Justice Gancayco.
MMDA alleges that by virtue of MMDA Resolution No. 02-28, Series of 2002, it is
empowered to demolish Justice Gancayco’s property. It insists that the Metro Manila
Council authorized the MMDA and the local government units to clear the sidewalks,
streets, avenues, alleys, bridges, parks and other public places in Metro Manila of all
illegal structures and obstructions. It further alleges that it demolished the property
pursuant to the Building Code in relation to Ordinance No. 2904 as amended.
However, the Building Code clearly provides the process by which a building may be
demolished. The authority to order the demolition of any structure lies with the Building
Official. The pertinent provisions of the Building Code provide:
SECTION 205. Building Officials. — Except as otherwise provided herein, the Building
Official shall be responsible for carrying out the provisions of this Code in the field as
well as the enforcement of orders and decisions made pursuant thereto.
Due to the exigencies of the service, the Secretary may designate incumbent Public
Works District Engineers, City Engineers and Municipal Engineers act as Building
Officials in their respective areas of jurisdiction.
The designation made by the Secretary under this Section shall continue until regular
positions of Building Official are provided or unless sooner terminated for causes
provided by law or decree.
xxx xxx xxx
73
SECTION 207. Duties of a Building Official. — In his respective territorial jurisdiction,
the Building Official shall be primarily responsible for the enforcement of the provisions
of this Code as well as of the implementing rules and regulations issued therefor. He is
the official charged with the duties of issuing building permits.
In the performance of his duties, a Building Official may enter any building or its
premises at all reasonable times to inspect and determine compliance with the
requirements of this Code, and the terms and conditions provided for in the building
permit as issued.
When any building work is found to be contrary to the provisions of this Code, the
Building Official may order the work stopped and prescribe the terms and/or conditions
when the work will be allowed to resume. Likewise, the Building Official is authorized
to order the discontinuance of the occupancy or use of any building or structure or
portion thereof found to be occupied or used contrary to the provisions of this Code.
xxx xxx xxx
SECTION 215. Abatement of Dangerous Buildings. — When any building or structure
is found or declared to be dangerous or ruinous, the Building Official shall order its
repair, vacation or demolition depending upon the degree of danger to life, health, or
safety. This is without prejudice to further action that may be taken under the provisions
of Articles 482 and 694 to 707 of the Civil Code of the Philippines. (Emphasis supplied.)
MMDA v. Trackworks Rail Transit Advertising, Vending and Promotions, Inc. 31 is
applicable to the case at bar. In that case, MMDA, invoking its charter and the Building
Code, summarily dismantled the advertising media installed on the Metro Rail Transit
(MRT) 3. This Court held:
It is futile for MMDA to simply invoke its legal mandate to justify the dismantling of
Trackworks' billboards, signages and other advertising media. MMDA simply had no
power on its own to dismantle, remove, or destroy the billboards, signages and other
advertising media installed on the MRT3 structure by Trackworks. In Metropolitan
Manila Development Authority v. Bel-Air Village Association, Inc., Metropolitan Manila
Development Authority v. Viron Transportation Co., Inc., and Metropolitan Manila
Development Authority v. Garin, the Court had the occasion to rule that MMDA's powers
were limited to the formulation, coordination, regulation, implementation, preparation,
management, monitoring, setting of policies, installing a system, and administration.
Nothing in Republic Act No. 7924 granted MMDA police power, let alone legislative
power.
Clarifying the real nature of MMDA, the Court held:
...The MMDA is, as termed in the charter itself, a "development authority". It is an
agency created for the purpose of laying down policies and coordinating with the
various national government agencies, people's organizations, non-governmental
organizations and the private sector for the efficient and expeditious delivery of basic
services in the vast metropolitan area. All its functions are administrative in nature and
these are actually summed up in the charter itself, viz:
 74

Sec.2. Creation of the Metropolitan Manila Development Authority.- xxx.
The MMDA shall perform planning, monitoring and coordinative functions, and in the
process exercise regulatory and supervisory authority over the delivery of metro-wide
services within Metro Manila, without diminution of the autonomy of local government
units concerning purely local matters.
The Court also agrees with the CA's ruling that MMDA Regulation No. 96-009 and MMC
Memorandum Circular No. 88-09 did not apply to Trackworks' billboards, signages and
other advertising media. The prohibition against posting, installation and display of
billboards, signages and other advertising media applied only to public areas, but
MRT3, being private property pursuant to the BLT agreement between the Government
and MRTC, was not one of the areas as to which the prohibition applied. Moreover,
MMC Memorandum Circular No. 88-09 did not apply to Trackworks' billboards,
signages and other advertising media in MRT3, because it did not specifically cover
MRT3, and because it was issued a year prior to the construction of MRT3 on the center
island of EDSA. Clearly, MMC Memorandum Circular No. 88-09 could not have
included MRT3 in its prohibition.
Lastly, the MMDA claims that the City Government of Quezon City may be considered
to have approved the demolition of the structure, simply because then Quezon City
Mayor Feliciano R. Belmonte signed MMDA Resolution No. 02-28. In effect, the city
government delegated these powers to the MMDA. The powers referred to are those
that include the power to declare, prevent and abate a nuisance 32 and to further impose
the penalty of removal or demolition of the building or structure by the owner or by the
city at the expense of the owner.33
MMDA’s argument does not hold water. There was no valid delegation of powers to the
MMDA. Contrary to the claim of the MMDA, the City Government of Quezon City
washed its hands off the acts of the former. In its Answer,34 the city government stated
that "the demolition was undertaken by the MMDA only, without the participation and/or
consent of Quezon City." Therefore, the MMDA acted on its own and should be held
solely liable for the destruction of the portion of Justice Gancayco’s building.
WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals in CA-
G.R. SP No. 84648 is AFFIRMED.
SO ORDERED.

MMDA's insistence that it was only implementing Presidential Decree No. 1096
(Building Code) and its implementing rules and regulations is not persuasive. The
power to enforce the provisions of the Building Code was lodged in the Department of
Public Works and Highways (DPWH), not in MMDA, considering the law's following
provision, thus:

Sec. 201. Responsibility for Administration and Enforcement. -

The administration and enforcement of the provisions of this Code including the
imposition of penalties for administrative violations thereof is hereby vested in the
Secretary of Public Works, Transportation and Communications, hereinafter referred to
as the "Secretary."

There is also no evidence showing that MMDA had been delegated by DPWH to
implement the Building Code. (Emphasis supplied.)

Additionally, the penalty prescribed by Ordinance No. 2904 itself does not include the
demolition of illegally constructed buildings in case of violations. Instead, it merely
prescribes a punishment of "a fine of not more than two hundred pesos (₱200.00) or
by imprisonment of not more than thirty (30) days, or by both such fine and
imprisonment at the discretion of the Court, Provided, that if the violation is committed
by a corporation, partnership, or any juridical entity, the Manager, managing partner, or
any person charged with the management thereof shall be held responsible therefor."
The ordinance itself also clearly states that it is the regular courts that will determine
whether there was a violation of the ordinance.

As pointed out in Trackworks, the MMDA does not have the power to enact ordinances.
Thus, it cannot supplement the provisions of Quezon City Ordinance No. 2904 merely
through its Resolution No. 02-28.

G.R. No. 159110 December 10, 2013
VALENTINO L. LEGASPI, Petitioner,
vs.
CITY OF CEBU, T.C. (TITO) SAYSON AND RICARDO HAPITAN, Respondents.
The goal of the decentralization of powers to the local government units (LGUs) is to
ensure the enjoyment by each of the territorial and political subdivisions of the State of
a genuine and meaningful local autonomy. To attain the goal, the National Legislature
has devolved the three great inherent powers of the State to the LGUs. Each political
subdivision is there by vested with such powers subject to constitutional and statutory
limitations.
In particular, the Local Government Code (LGC) has expressly empowered the LGUs
to enact and adopt ordinances to regulate vehicular traffic and to prohibit illegal parking
within their jurisdictions. Now challenged before the Court are the constitutionality and
validity of one such ordinance on the ground that the ordinance constituted a
contravention of the guaranty of due process under the Constitution by authorizing the
immobilization of offending vehicles through the clamping of tires. The challenge
originated in the Regional Trial Court (RTC) at the instance of the petitioners – vehicle
owners who had borne the brunt of the implementation of the ordinance –with the RTC
declaring the ordinance unconstitutional, but it has now reached the Court as a
consolidated appeal taken in due course by the petitioners after the Court of Appeals
(CA) reversed the judgment of the RTC.
Antecedents
On January 27, 1997 the Sangguniang Panlungsod of the City of Cebu enacted
Ordinance No. 1664toauthorizethetraffic enforcers of Cebu City to immobilize any
motor vehicle violating the parking restrictions and prohibitions defined in Ordinance
No. 801 (Traffic Code of Cebu City).1 The pertinent provisions of Ordinance No. 1664
read:
Section 1. POLICY–It is the policy of the government of the City of Cebu to immobilize
any motor vehicle violating any provision of any City Ordinance on Parking Prohibitions
or Restrictions, more particularly Ordinance No. 801, otherwise known as the Traffic
Code of Cebu City, as amended, in order to have a smooth flow of vehicular traffic in
all the streets in the City of Cebu at all times.
Section 2. IMMOBILIZATION OF VEHICLES–Any vehicle found violating any provision
of any existing ordinance of the City of Cebu which prohibits, regulates or restricts the
parking of vehicles shall be immobilized by clamping any tire of the said violating vehicle
with the use of a denver boot vehicle immobilizer or any other special gadget designed
to immobilize motor vehicles. For this particular purpose, any traffic enforcer of the City
(regular PNP Personnel or Cebu City Traffic Law Enforcement Personnel) is hereby
authorized to immobilize any violating vehicleas hereinabove provided.
Section 3. PENALTIES–Any motor vehicle, owner or driver violating any ordinance on
parking prohibitions, regulations and/or restrictions, as may be providedunder
75
Ordinance No. 801, as amended, or any other existing ordinance, shall be penalized in
accordance with the penalties imposed in the ordinance so violated, provided that the
vehicle immobilizer may not be removed or released without its owner or driver paying
first to the City Treasurer of Cebu City through the Traffic Violations Bureau (TVB) all
the accumulated penalties for all prior traffic law violations that remain unpaid or
unsettled, plus the administrative penalty of Five Hundred Pesos (₱500.00) for the
immobilization of the said vehicle, and receipts of such payments presented to the
concerned personnel of the bureau responsible for the release of the immobilized
vehicle, unless otherwise ordered released by any of the following officers:
a) Chairman, CITOM
b) Chairman, Committee on Police, Fire and Penology
c) Asst. City Fiscal Felipe Belciña
3.1 Any person who tampers or tries to release an immobilized or clamped motor
vehicle by destroying the denver boot vehicle immobilizer or other such special
gadgets, shall be liable for its loss or destruction and shall be prosecuted for such loss
or destruction under pain or penalty under the Revised Penal Code and any other
existing ordinance of the City of Cebu for the criminal act, in addition to his/her civil
liabilities under the Civil Code of the Philippines; Provided that any such act may not
be compromised nor settled amicably extrajudicially.
3.2 Any immobilized vehicle which is unattended and constitute an obstruction to the
free flow of traffic or a hazard thereof shall be towed to the city government impounding
area for safekeeping and may be released only after the provision of Section 3 hereof
shall have been fully complied with.
3.3 Any person who violates any provision of this ordinance shall, upon conviction, be
penalized with imprisonment of not less than one (1)month nor more than six (6) months
or of a fine of not less than Two Thousand Pesos(₱2,000.00)nor more than Five
Thousand Pesos(₱5,000.00), or both such imprisonment and fine at the discretion of
the court.2
On July 29, 1997, Atty. Bienvenido Jaban (Jaban,Sr.) and his son Atty. Bienvenido
Douglas Luke Bradbury Jaban (Jaban,Jr.) brought suit in the RTC in Cebu City against
the City of Cebu, then represented by Hon. Alvin Garcia, its City Mayor, the
Sangguniang Panlungsod of Cebu City and its Presiding Officer, Hon. Renato V.
Osmeña, and the chairman and operatives or officers of the City Traffic Operations
Management (CITOM),seeking the declaration of Ordinance No. 1644 as
unconstitutional for being in violation of due process and for being contrary to law, and
damages.3 Their complaint alleged that on June 23, 1997, Jaban Sr. had properly
parked his car in a paying parking area on Manalili Street, Cebu City to get certain
records and documents fromhis office;4that upon his return after less than 10 minutes,
he had found his car being immobilized by a steel clamp, and a notice being posted on
the car to the effect that it would be a criminal offense to break the clamp;5 that he had
been infuriated by the immobilization of his car because he had been thereby rendered

unable to meet an important client on that day; that his car was impounded for three
days, and was informed at the office of the CITOM that he had first to pay₱4,200.00as
a fine to the City Treasurer of Cebu City for the release of his car;6that the fine was
imposed without any court hearing and without due process of law, for he was not even
told why his car had been immobilized; that he had undergone a similar incident of
clamping of his car on the early morning of November 20, 1997 while his car was parked
properly in a parking lot in front of the San Nicolas Pasil Market in Cebu City without
violating any traffic regulation or causing any obstruction; that he was compelled to pay
₱1,500.00(itemized as ₱500.00 for the clamping and₱1,000.00for the violation) without
any court hearing and final judgment; that on May 19, 1997, Jaban, Jr. parked his car
in a very secluded place where there was no sign prohibiting parking; that his car was
immobilized by CITOM operative Lito Gilbuena; and that he was compelled to pay the
total sum of ₱1,400.00for the release of his car without a court hearing and a final
judgment rendered by a court of justice.7
On August 11, 1997, Valentino Legaspi (Legaspi) likewise sued in the RTC the City of
Cebu,T.C. Sayson, Ricardo Hapitan and John Does to demand the delivery of personal
property, declaration of nullity of the Traffic Code of Cebu City, and damages.8 He
averred that on the morning of July 29, 1997, he had left his car occupying a portion of
the sidewalk and the street outside the gate of his house to make way for the vehicle
of the anay exterminator who had asked to be allowed to unload his materials and
equipment from the front of the residence inasmuch as his daughter’s car had been
parked in the carport, with the assurance that the unloading would not take too
long;9 that while waiting for the anay exterminator to finish unloading, the phone in his
office inside the house had rung, impelling him to go into the house to answer the call;
that after a short while, his son-in-law informed him that unknown persons had clamped
the front wheel of his car;10 that he rushed outside and found a traffic citation stating
that his car had been clamped by CITOM representatives with a warning that the
unauthorized removal of the clamp would subject the remover to criminal
charges;11 and that in the late afternoon a group headed by Ricardo Hapitan towed the
car even if it was not obstructing the flow of traffic.12
In separate answers for the City of Cebu and its co-defendants,13 the City Attorney of
Cebu presented similar defenses, essentially stating that the traffic enforcers had only
upheld the law by clamping the vehicles of the plaintiffs;14 and that Ordinance No. 1664
enjoyed the presumption of constitutionality and validity.15
The cases were consolidated before Branch 58 of the RTC, which, after trial, rendered
on January 22, 1999 its decision declaring Ordinance No. 1664 as null and void upon
the following ratiocination:
In clear and simple phrase, the essence of due process was expressed by Daniel
Webster as a "law which hears before it condemns". In another case[s], "procedural
due process is that which hears before it condemns, which proceeds upon inquiry and
renders judgment only after trial." It contemplate(s)notice and opportunity to be heard
before judgment is rendered affecting ones (sic) person or property." In both procedural
and substantive due process, a hearing is always a pre-requisite, hence, the taking or
76
deprivation of one’s life, liberty or property must be done upon and with observance of
the "due process" clause of the Constitution and the non-observance or violation
thereof is, perforce, unconstitutional.
Under Ordinance No. 1664, when a vehicle is parked in a prohibited, restrycted (sic) or
regulated area in the street or along the street, the vehicle is immobilized by clamping
any tire of said vehicle with the use of a denver boot vehicle immobilizer or any other
special gadget which immobilized the motor vehicle. The violating vehicle is
immobilized, thus, depriving its owner of the use thereof at the sole determination of
any traffic enforcer or regular PNP personnel or Cebu City Traffic Law Enforcement
Personnel. The vehicle immobilizer cannot be removed or released without the owner
or driver paying first to the City Treasurer of Cebu through the Traffic Violations Bureau
all the accumulated penalties of all unpaid or unsettled traffic law violations, plus the
administrative penalty of ₱500.00 and, further, the immobilized vehicle shall be
released only upon presentation of the receipt of said payments and upon release order
by the Chairman, CITOM, or Chairman, Committee on Police, Fire and Penology, or
Asst. City Fiscal Felipe Belcina. It should be stressed that the owner of the immobilized
vehicle shall have to undergo all these ordeals at the mercy of the Traffic Law Enforcer
who, as the Ordinance in question mandates, is the arresting officer, prosecutor, Judge
and collector. Otherwise stated, the owner of the immobilized motor vehicle is deprived
of his right to the use of his/her vehicle and penalized without a hearing by a person
who is not legally or duly vested with such rights, power or authority. The Ordinance in
question is penal in nature, and it has been held;
xxxx
WHEREFORE, premised (sic) considered, judgment is hereby rendered declaring
Ordinance No.1664unconstitutional and directing the defendant City of Cebu to pay the
plaintiff Valentino Legaspi the sum of ₱110,000.00 representing the value of his car,
and to all the plaintiffs, Valentino L. Legaspi, Bienvenido P. Jaban and Bienvenido
Douglas Luke Bradbury Jaban, the sum of ₱100,000.00 each or ₱300,000.00 all as
nominal damages and another ₱100,000.00 each or₱300,000.00 all as temperate or
moderate damages. With costs against defendant City of Cebu.
SO ORDERED.16 (citations omitted)
The City of Cebu and its co-defendants appealed to the CA, assigning the following
errors to the RTC, namely: (a) the RTC erred in declaring that Ordinance No. 1664 was
unconstitutional; (b) granting, arguendo, that Ordinance No. 1664 was unconstitutional,
the RTC gravely erred in holding that any violation prior to its declaration as being
unconstitutional was irrelevant; (c) granting, arguendo, that Ordinance No. 1664 was
unconstitutional, the RTC gravely erred in awarding damages to the plaintiffs; (d)
granting, arguendo, that the plaintiffs were entitled to damages, the damages awarded
were excessive and contrary to law; and (e) the decision of the RTC was void, because
the Office of the Solicitor General (OSG) had not been notified of the proceedings.
On June 16, 2003, the CA promulgated its assailed decision,17overturning the RTCand
declaring Ordinance No. 1664 valid, to wit:

The principal thrust of this appeal is the constitutionality of Ordinance 1664.
Defendants-appellants contend that the passage of Ordinance 1664is in accordance
with the police powers exercised by the City of Cebu through the Sangguniang
Panlungsod and granted by RA 7160, otherwise known as the Local Government Code.
A thematic analysis of the law on municipal corporations confirms this view. As in
previous legislation, the Local Government Code delegates police powers to the local
governments in two ways. Firstly, it enumerates the subjects on which the Sangguniang
Panlungsod may exercise these powers. Thus, with respect to the use of public streets,
Section 458 of the Code states:
Section 458 (a) The sangguniang panlungsod, as the legislative branch of the city, x x
x shall x x x
(5) (v) Regulate the use of streets, avenues, alleys, sidewalks, bridges, park and other
public places and approve the construction, improvement, repair and maintenance of
the same; establish bus and vehicle stops and terminals or regulate the use of the same
by privately owned vehicles which serve the public; regulate garages and the operation
of conveyances for hire; designate stands to be occupied by public vehicles when not
in use; regulate the putting up of signs, signposts, awnings and awning posts on the
streets; and provide for the lighting, cleaning and sprinkling of streets and public places;
(vi) Regulate traffic on all streets and bridges; prohibit encroachments or obstacles
thereon and, when necessary in the interest of public welfare, authorize the removal of
encroachments and illegal constructions in public places.It then makes a general grant
of the police power. The scope of the legislative authority of the local government is set
out in Section 16, to wit:
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.
This provision contains what is traditionally known as the general welfare clause. As
expounded in United States vs. Salaveria, 39 Phil 102, 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. The
second branch of the clause is much more independent of the specific functions of the
council, and authorizes such ordinances as shall seem necessary and proper to provide
for health, safety, prosperity and convenience of the municipality and its inhabitants.
In a vital and critical way, the general welfare clause complements the more specific
powers granted a local government. It serves as a catch-all provision that ensures that
the local government will be equipped to meet any local contingency that bears upon
the welfare of its constituents but has not been actually anticipated. So varied and
protean are the activities that affect the legitimate interests of the local inhabitants that
it is well-nigh impossible to say beforehand what may or may not be done specifically
through law. To ensure that a local government can react positively to the people’s
77
needs and expectations, the general welfare clause has been devised and interpreted
to allow the local legislative council to enact such measures as the occasion requires.
Founded on clear authority and tradition, Ordinance 1664 may be deemed a legitimate
exercise of the police powers of the Sangguniang Panlungsod of the City of Cebu. This
local law authorizes traffic enforcers to immobilize and tow for safekeeping vehicles on
the streets that are illegally parked and to release them upon payment of the announced
penalties. As explained in the preamble, it has become necessary to resort to these
measures because of the traffic congestion caused by illegal parking and the inability
of existing penalties to curb it. The ordinance is designed to improve traffic conditions
in the City of Cebu and thus shows a real and substantial relation to the welfare, comfort
and convenience of the people of Cebu. The only restrictions to an ordinance passed
under the general welfare clause, as declared in Salaveria, is that the regulation must
be reasonable, consonant with the general powers and purposes of the corporation,
consistent with national laws and policies, and not unreasonable or discriminatory. The
measure in question undoubtedly comes within these parameters.
Upon the denial of their respective motions for reconsideration on August 4, 2003, the
Jabans and Legaspi came to the Court via separate petitions for review on certiorari.
The appeals were consolidated.
Issues
Based on the submissions of the parties, the following issues are decisive of the
challenge, to wit:
1. Whether Ordinance No. 1664was enacted within the ambit of the legislative powers
of the City of Cebu; and
2. Whether Ordinance No. 1664complied with the requirements for validity and
constitutionality, particularly the limitations set by the Constitution and the relevant
statutes.
Ruling
The petitions for review have nomerit.
A.
Tests for a valid ordinance
In City of Manila v. Laguio, Jr.,18 the Court restatesthe tests of a valid ordinance thusly:
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.19
As jurisprudence indicates, the tests are divided into the formal (i.e., whether the
ordinance was enacted within the corporate powers of the LGU, and whether it was
passed in accordance with the procedure prescribed by law), and the substantive
(i.e.,involving inherent merit, like the conformity of the ordinance with the limitations
under the Constitution and the statutes, as well as with the requirements of fairness
and reason, and its consistency with public policy).
B.
Compliance of Ordinance No. 1664
with the formal requirements
Was the enactment of Ordinance No. 1664 within the corporate powers of the LGU of
the City of Cebu?
The answer is in the affirmative. Indeed, with no issues being hereby raised against the
formalities attendant to the enactment of Ordinance No. 1664, we presume its full
compliance with the test in that regard. Congress enacted the LGC as the implementing
law for the delegation to the various LGUs of the State’s great powers, namely: the
police power, the power of eminent domain, and the power of taxation. The LGC was
fashioned to delineate the specific parameters and limitations to be complied with by
each LGU in the exercise of these delegated powers with the view of making each LGU
a fully functioning subdivision of the State subject to the constitutional and statutory
limitations.
In particular, police power is regarded as "the most essential, insistent and the least
limitable of powers, extending as it does ‘to all the great public needs.’" 20 It is
unquestionably "the power vested in the legislature by the constitution, to make, ordain
and establish all manner of wholesome and reasonable laws, statutes and ordinances,
either with penalties or without, not repugnant to the constitution, as they shall judge to
be for the good and welfare of the commonwealth, and of the subject of the
same."21 According to Cooley: "[The police power] embraces the whole system of
internal regulation by which the state seeks not only to preserve the public order and to
prevent offences against itself, but also to establish for the intercourse of citizens with
citizens, those rules of good manners and good neighborhood which are calculated to
prevent the conflict of rights and to insure to each the uninterrupted enjoyment of his
own, so far as it is reasonably consistent with the right enjoyment of rights by others."22
In point is the exercise by the LGU of the City of Cebu of delegated police power.
In Metropolitan Manila Development Authorityv. Bel-Air Village Association,Inc.,23 the
Court cogently observed:
It bears stressing that police power is lodged primarily in the National Legislature. It
cannot be exercised by any group or body of individuals not possessing legislative
power. The National Legislature, however, may delegate this power to the President
and administrative boards as well as the lawmaking bodies of municipal corporations
78
or local government units. Once delegated, the agents can exercise only such
legislative powers as are conferred on them by the national lawmaking body. (emphasis
supplied)
The CA opined, and correctly so, that vesting cities like the City of Cebu with the
legislative power to enact traffic rules and regulations was expressly done through
Section 458 of the LGC, and also generally by virtue of the General Welfare Clause
embodied in Section 16 of the LGC.24Section 458of the LGC relevantly states: Section
458. Powers, Duties, Functions and Composition. –(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:
xxxx
(5) Approve ordinances which shall ensure the efficient and effective delivery of the basic services
and facilities as provided for under Section 17 of this Code, and in addition to said services and
facilities, shall:
xxxx
(v) Regulate the use of streets, avenues, alleys, sidewalks, bridges, parks and other public places
and approve the construction, improvement repair and maintenance of the same; establish bus
and vehicle stops and terminals or regulate the use of the same by privately-owned vehicles which
serve the public; regulate garages and operation of conveyances for hire;designate stands to be
occupied by public vehicles when not in use; regulate the putting up of signs, signposts, awnings
and awning posts on the streets; and provide for the lighting, cleaning and sprinkling of streets
and public places;(vi) Regulate traffic on all streets and bridges; prohibit encroachments or
obstacles thereon and, when necessary in the interest of public welfare, authorize the removal of
encroachments and illegal constructions in public places;(emphasis supplied)The foregoing
delegation reflected the desire of Congress to leave to the cities themselves the task of confronting
the problem of traffic congestions associated with development and progress because they were
directly familiar with the situations in their respective jurisdictions. Indeed, the LGUs would be in
the best position to craft their traffic codes because of their familiarity with the conditions peculiar
to their communities. With the broad latitude in this regard allowed to the LGUs of the cities ,their
traffic regulations must be held valid and effective unless they infringed the constitutional
limitations and statutory safeguards.
C.
Compliance of Ordinance No. 1664
with the substantive requirements
The first substantive requirement for a valid ordinance is the adherence to the
constitutional guaranty of due process of law. The guaranty is embedded in Article III,
Section 1 of the Constitution, which ordains:
Section 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 the laws.4

The guaranty of due process of law is a constitutional safeguard against any
arbitrariness on the part of the Government, whether committed by the Legislature, the
Executive, or the Judiciary. It is a protection essential to every inhabitant of the country,
for, as a commentator on Constitutional Law has vividly written:25
x x x. If the law itself unreasonably deprives a person of his life, liberty, or property, he
is denied the protection of due process. If the enjoyment of his rights is conditioned on
an unreasonable requirement, due process is likewise violated. Whatsoever be the
source of such rights, be it the Constitution itself or merely a statute, its unjustified
withholding would also be a violation of due process. Any government act that militates
against the ordinary norms of justice or fair play is considered an infraction of the great
guaranty of due process; and this is true whether the denial involves violation merely
of the procedure prescribed by the law or affects the very validity of the law itself.
In City of Manila v. Laguio, Jr.,26 the Court expounded on the aspects of the guaranty
of due process of law as a limitation on the acts of government, viz:
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 that kind of notice and what form of
hearing the government must provide when it takes a particular action.
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 sufficient justification for the
government’s action. 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. 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.
The police power granted to local government units must always be exercised with
utmost observance of the rights of the people to due process and equal protection of
the law. Such power cannot be exercised whimsically, arbitrarily or despotically as its
exercise is subject to a qualification, limitation or restriction demanded by the respect
and regard due to the prescription of the fundamental law, particularly those forming
part of the Bill of Rights. Individual rights, it bears emphasis, may be adversely affected
only to the extent that may fairly be required by the legitimate demands of public interest
or public welfare. Due process requires the intrinsic validity of the law in interfering with
the rights of the person to his life, liberty and property. 27
The Jabans contend that Ordinance No. 1664, by leaving the confiscation and
immobilization of the motor vehicles to the traffic enforcers or the regular personnel of
79
the Philippine National Police (PNP) instead of to officials exercising judicial authority,
was violative of the constitutional guaranty of due process; that such confiscation and
immobilization should only be after a hearing on the merits by courts of law; and that
the immobilization and the clamping of the cars and motor vehicles by the police or
traffic enforcers could be subject to abuse.
On his part, Legaspi likewise contends that Ordinance No. 1664 violated the
constitutional guaranty of due process for being arbitrary and oppressive; and that its
provisions conferring upon the traffic enforcers the absolute discretion to be the
enforcers, prosecutors, judges and collectors all at the same time were vague and
ambiguous.28 He reminds that the grant of police powers for the general welfare under
the LGC was not unlimited but subject to constitutional limitations; 29and that these
consolidated cases should not be resolved differently from the resolution of a third case
assailing the validity of Ordinance No.1664 (Astillero case), in which the decision of the
same RTC declaring Ordinance No.1664 as unconstitutional had attained finality
following the denial of due course to the appeal of the City of Cebu and its co-
defendants.
Judged according to the foregoing enunciation of the guaranty of due process of law,
the contentions of the petitioners cannot be sustained.1âwphi1 Even under strict
scrutiny review, Ordinance No. 1664 met the substantive tests of validity and
constitutionality by its conformity 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.
To us, the terms encroachment and obstacles used in Section 458 of the LGC, supra,
were broad enough to include illegally parked vehicles or whatever else obstructed the
streets, alleys and sidewalks, which were precisely the subject of Ordinance No. 1664
in a vowedly aiming to ensure "a smooth flow of vehicular traffic in all the streets in the
City of Cebu at all times" (Section 1). This aim was borne out by its Whereas Clauses,
viz:
WHEREAS, the City of Cebu enacted the Traffic Code (Ordinance No. 801) as
amended, provided for Parking Restrictions and Parking Prohibitions in the streets of
Cebu City;
WHEREAS, despite the restrictions and prohibitions of parking on certain streets of
Cebu City, violations continued unabated due, among others, to the very low penalties
imposed under the Traffic Code of Cebu City;
WHEREAS, City Ordinance 1642 was enacted in order to address the traffic
congestions caused by illegal parkings in the streets of Cebu City;
WHEREAS, there is a need to amend City Ordinance No.1642 in order to fully address
and solve the problem of illegal parking and other violations of the Traffic Code of Cebu
City;30 (emphasis supplied)
Considering that traffic congestions were already retarding the growth and progress in
the population and economic centers of the country, the plain objective of Ordinance

No. 1664 was to serve the public interest and advance the general welfare in the City
of Cebu. Its adoption was, therefore, in order to fulfill the compelling government
purpose of immediately addressing the burgeoning traffic congestions caused by
illegally parked vehicles obstructing the streets of the City of Cebu.
Legaspi’s attack against the provisions of Ordinance No. 1664 for being vague and
ambiguous cannot stand scrutiny.1âwphi1 As can be readily seen, its text was for
thright and unambiguous in all respects. There could be no confusion on the meaning
and coverage of the ordinance. But should there be any vagueness and ambiguity in
the provisions, which the OSG does not concede, 31 there was nothing that a proper
application of the basic rules of statutory construction could not justly rectify.
The petitioners further assert that drivers or vehicle owners affected by Ordinance No.
1664 like themselves were not accorded the opportunity to protest the clamping, towing,
and impounding of the vehicles, or even to be heard and to explain their side prior to
the immobilization of their vehicles; and that the ordinance was oppressive and arbitrary
for that reason.
The adverse assertions against Ordinance No. 1664 are unwarranted.
Firstly, Ordinance No. 1664 was far from oppressive and arbitrary. Any driver or vehicle
owner whose vehicle was immobilized by clamping could protest such action of a traffic
enforcer or PNP personnel enforcing the ordinance. Section 3 of Ordinance No.
1664, supra, textually afforded an administrative escape in the form of permitting the
release of the immobilized vehicle upon a protest directly made to the Chairman of
CITOM; or to the Chairman of the Committee on Police, Fire and Penology of the City
of Cebu; or to Asst. City Prosecutor Felipe Belciña–officials named in the ordinance
itself. The release could be ordered by any of such officials even without the payment
of the stipulated fine. That none of the petitioners, albeit lawyers all, resorted to such
recourse did not diminish the fairness and reasonableness of the escape clause written
in the ordinance. Secondly, the immobilization of a vehicle by clamping pursuant to the
ordinance was not necessary if the driver or vehicle owner was around at the time of
the apprehension for illegal parking or obstruction. In that situation, the enforcer would
simply either require the driver to move the vehicle or issue a traffic citation should the
latter persist in his violation. The clamping would happen only to prevent the transgress
or from using the vehicle itself to escape the due sanctions. And, lastly, the towing away
of the immobilized vehicle was not equivalent to a summary impounding, but designed
to prevent the immobilized vehicle from obstructing traffic in the vicinity of the
apprehension and thereby ensure the smooth flow of traffic. The owner of the towed
vehicle would not be deprived of his property.
In fine, the circumstances set forth herein indicate that Ordinance No. 1664 complied
with the elements of fairness and reasonableness.
Did Ordinance No. 1664 meet the requirements of procedural due process?
Notice and hearing are the essential requirements of procedural due process. Yet, there
are many instances under our laws in which the absence of one or both of such
80
requirements is not necessarily a denial or deprivation of due process. Among the
instances are the cancellation of the passport of a person being sought for the
commission of a crime, the preventive suspension of a civil servant facing
administrative charges, the distraint of properties to answer for tax delinquencies, the
padlocking of restaurants found to be unsanitary or of theaters showing obscene
movies, and the abatement of nuisance per se.32 Add to them the arrest of a person
in flagrante delicto.33
The clamping of the petitioners’ vehicles pursuant to Ordinance No. 1664 (and of the
vehicles of others similarly situated) was of the same character as the aforecited
established exceptions dispensing with notice and hearing. As already said, the
immobilization of illegally parked vehicles by clamping the tires was necessary because
the transgressors were not around at the time of apprehension. Under such
circumstance, notice and hearing would be superfluous. Nor should the lack of a trial-
type hearing prior to the clamping constitute a breach of procedural due process,
forgiving the transgressors the chance to reverse the apprehensions through a timely
protest could equally satisfy the need for a hearing. In other words, the prior intervention
of a court of law was not indispensable to ensure a compliance with the guaranty of
due process.
To reiterate, the clamping of the illegally parked vehicles was a fair and reasonable way
to enforce the ordinance against its transgressors; otherwise, the transgressors would
evade liability by simply driving away.
Finally, Legaspi’s position, that the final decision of the RTC rendered in the Astillero
case declaring Ordinance No. 1664 unconstitutional bound the City of Cebu, thereby
precluding these consolidated appeals from being decided differently, is utterly
untenable. For one, Legaspi undeservedly extends too much importance to an
irrelevant decision of the RTC–irrelevant, because the connection between that case
to these cases was not at all shown. For another, he ignores that it should be the RTC
that had improperly acted for so deciding the Astillero case despite the appeals in these
cases being already pending in the CA. Being the same court in the three cases, the
RTC should have anticipated that in the regular course of proceedings the outcome of
the appeal in these cases then pending before the CA would ultimately be elevated to
and determined by no less than the Court itself. Such anticipation should have made it
refrain from declaring Ordinance No. 1664 unconstitutional, for a lower court like itself,
appreciating its position in the "interrelation and operation of the integrated judicial
system of the nation," should have exercised a "becoming modesty" on the issue of the
constitutionality of the same ordinance that the Constitution required the majority vote
of the Members of the Court sitting en bane to determine.34 Such "becoming modesty"
also forewarned that any declaration of unconstitutionality by an inferior court was
binding only on the parties, but that a declaration of unconstitutionality by the Court
would be a precedent binding on all. 35
WHEREFORE, the Court DENIES the pet1t10ns for review on certiorari for their lack
of merit; AFFIRMS the decision promulgated on June 16, 2003 by the Court of Appeals;
and ORDERS the petitioners to pay the costs of suit. SO ORDERED.