GARCIA V DRILON
PERLAS-BERNABE, J p:
Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million
Filipinos or 93 percent of a total population of 93.3 million adhering to the
teachings of Jesus Christ. 1 Yet, the admonition for husbands to love their wives as
their own bodies just as Christ loved the church and gave himself up for her 2 failed to
prevent, or even to curb, the pervasiveness of violence against Filipino women. The
National Commission on the Role of Filipino Women (NCRFW) reported that, for the
years 2000-2003, "female violence comprised more than 90% of all forms of abuse
and violence and more than 90% of these reported cases were committed by the
women's intimate partners such as their husbands and live-in partners." 3
Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups,
Congress enacted Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence
Against Women and Their Children, Providing for Protective Measures for Victims,
Prescribing Penalties Therefor, and for Other Purposes." It took effect on March 27,
2004. 4
R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence
against women and their children (VAWC) perpetrated by women's intimate partners,
i.e., husband; former husband; or any person who has or had a sexual or dating
relationship, or with whom the woman has a common child. 5 The law provides for
protection orders from the barangay and the courts to prevent the commission of
further acts of VAWC; and outlines the duties and responsibilities of barangay
officials, law enforcers, prosecutors and court personnel, social workers, health care
providers, and other local government officials in responding to complaints of VAWC
or requests for assistance.
A husband is now before the Court assailing the constitutionality of R.A. 9262 as
being violative of the equal protection and due process clauses, and an undue
delegation of judicial power to barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and
in behalf of her minor children, a verified petition 6 (Civil Case No. 06-797) before the
Regional Trial Court (RTC) of Bacolod City for the issuance of a Temporary Protection
Order (TPO) against her husband, Jesus C. Garcia (petitioner), pursuant to R.A.
9262. She claimed to be a victim of physical abuse; emotional, psychological, and
economic violence as a result of marital infidelity on the part of petitioner, with threats
of deprivation of custody of her children and of financial support. 7
Private respondent's claims
Private respondent married petitioner in 2002 when she was 34 years old and the
former was eleven years her senior. They have three (3) children, namely: Jo-Ann J.
Garcia, 17 years old, who is the natural child of petitioner but whom private
respondent adopted; Jessie Anthone J. Garcia, 6 years old; and Joseph Eduard J.
Garcia, 3 years old. 8
Private respondent described herself as a dutiful and faithful wife, whose life revolved
around her husband. On the other hand, petitioner, who is of Filipino-Chinese
descent, is dominant, controlling, and demands absolute obedience from his wife and
children. He forbade private respondent to pray, and deliberately isolated her from her
friends. When she took up law, and even when she was already working part time at
a law office, petitioner trivialized her ambitions and prevailed upon her to just stay at
home. He was often jealous of the fact that his attractive wife still catches the eye of
some men, at one point threatening that he would have any man eyeing her killed. 9
Things turned for the worse when petitioner took up an affair with a bank manager of
Robinson's Bank, Bacolod City, who is the godmother of one of their sons. Petitioner
admitted to the affair when private respondent confronted him about it in 2004. He
even boasted to the household help about his sexual relations with said bank
manager. Petitioner told private respondent, though, that he was just using the
woman because of their accounts with the bank. 10 EHTIcD
Petitioner's infidelity spawned a series of fights that left private respondent physically
and emotionally wounded. In one of their quarrels, petitioner grabbed private
respondent on both arms and shook her with such force that caused bruises and
hematoma. At another time, petitioner hit private respondent forcefully on the lips that
caused some bleeding. Petitioner sometimes turned his ire on their daughter, Jo-Ann,
who had seen the text messages he sent to his paramour and whom he blamed for
squealing on him. He beat Jo-Ann on the chest and slapped her many times. When
private respondent decided to leave petitioner, Jo-Ann begged her mother to stay for
fear that if the latter leaves, petitioner would beat her up. Even the small boys are
aware of private respondent's sufferings. Their 6-year-old son said that when he
grows up, he would beat up his father because of his cruelty to private respondent. 11
All the emotional and psychological turmoil drove private respondent to the brink of
despair. On December 17, 2005, while at home, she attempted suicide by cutting her
wrist. She was found by her son bleeding on the floor. Petitioner simply fled the house
instead of taking her to the hospital. Private respondent was hospitalized for about
seven (7) days in which time petitioner never bothered to visit, nor apologized or
showed pity on her. Since then, private respondent has been undergoing therapy
almost every week and is taking anti-depressant medications. 12
When private respondent informed the management of Robinson's Bank that she
intends to file charges against the bank manager, petitioner got angry with her for
jeopardizing the manager's job. He then packed his things and told private
respondent that he was leaving her for good. He even told private respondent's
mother, who lives with them in the family home, that private respondent should just
accept his extramarital affair since he is not cohabiting with his paramour and has not
sired a child with her. 13
Private respondent is determined to separate from petitioner but she is afraid that he
would take her children from her and deprive her of financial support. Petitioner had
previously warned her that if she goes on a legal battle with him, she would not get a
single centavo. 14
Petitioner controls the family businesses involving mostly the construction of deep
wells. He is the President of three corporations 326 Realty Holdings, Inc., Negros
Rotadrill Corporation, and J-Bros Trading Corporation of which he and private
respondent are both stockholders. In contrast to the absolute control of petitioner over
said corporations, private respondent merely draws a monthly salary of P20,000.00
from one corporation only, the Negros Rotadrill Corporation. Household expenses
amounting to not less than P200,000.00 a month are paid for by private respondent
through the use of credit cards, which, in turn, are paid by the same corporation
together with the bills for utilities. 15 cDCIHT
On the other hand, petitioner receives a monthly salary of P60,000.00 from Negros
Rotadrill Corporation, and enjoys unlimited cash advances and other benefits in
hundreds of thousands of pesos from the corporations. 16 After private respondent
confronted him about the affair, petitioner forbade her to hold office at JBTC Building,
Mandalagan, where all the businesses of the corporations are conducted, thereby
depriving her of access to full information about said businesses. Until the filing of the
petition a quo, petitioner has not given private respondent an accounting of the
businesses the value of which she had helped raise to millions of pesos. 17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger of violence against the
private respondent and her children exists or is about to recur, the RTC issued a TPO
18 on March 24, 2006 effective for thirty (30) days, which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the conjugal dwelling or family
home within 24 hours from receipt of the Temporary Restraining Order and if he
refuses, ordering that he be removed by police officers from the conjugal dwelling;
this order is enforceable notwithstanding that the house is under the name of 236
Realty Holdings, Inc. (Republic Act No. 9262 states "regardless of ownership"), this is
to allow the Petitioner (private respondent herein) to enter the conjugal dwelling
without any danger from the Respondent. IcADSE
After the Respondent leaves or is removed from the conjugal dwelling, or anytime the
Petitioner decides to return to the conjugal dwelling to remove things, the Petitioner
shall be assisted by police officers when re-entering the family home.
The Chief of Police shall also give the Petitioner police assistance on Sunday, 26
March 2006 because of the danger that the Respondent will attempt to take her
children from her when he arrives from Manila and finds out about this suit.
b) To stay away from the petitioner and her children, mother and all her household
help and driver from a distance of 1,000 meters, and shall not enter the gate of the
subdivision where the Petitioner may be temporarily residing.
c) Not to harass, annoy, telephone, contact or otherwise communicate with the
Petitioner, directly or indirectly, or through other persons, or contact directly or
indirectly her children, mother and household help, nor send gifts, cards, flowers,
letters and the like. Visitation rights to the children may be subject of a modified TPO
in the future.
d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK
and ordering the Philippine National Police Firearms and Explosives Unit and the
Provincial Director of the PNP to cancel all the Respondent's firearm licenses. He
should also be ordered to surrender any unlicensed firearms in his possession or
control.
e) To pay full financial support for the Petitioner and the children, including rental of a
house for them, and educational and medical expenses.
f) Not to dissipate the conjugal business. aCTHEA
g) To render an accounting of all advances, benefits, bonuses and other cash he
received from all the corporations from 1 January 2006 up to 31 March 2006, which
himself and as President of the corporations and his Comptroller, must submit to the
Court not later than 2 April 2006. Thereafter, an accounting of all these funds shall be
reported to the court by the Comptroller, copy furnished to the Petitioner, every 15
days of the month, under pain of Indirect Contempt of Court.
h) To ensure compliance especially with the order granting support pendente lite, and
considering the financial resources of the Respondent and his threat that if the
Petitioner sues she will not get a single centavo, the Respondent is ordered to put up
a BOND TO KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two
sufficient sureties.
On April 24, 2006, upon motion 19 of private respondent, the trial court issued an
amended TPO, 20 effective for thirty (30) days, which included the following additional
provisions:
i) The petitioners (private respondents herein) are given the continued use of the
Nissan Patrol and the Starex Van which they are using in Negros Occidental.
j) The petitioners are given the continued use and occupation of the house in
Paraaque, the continued use of the Starex van in Metro Manila, whenever they go to
Manila.
k) Respondent is ordered to immediately post a bond to keep the peace, in two
sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed in the sum of One
Hundred Fifty Thousand Pesos (Php150,000.00) per month plus rental expenses of
Fifty Thousand Pesos (Php50,000.00) per month until the matter of support could be
finally resolved. cAaDCE
Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-
Parte Motion for Renewal of the TPO 21 seeking the denial of the renewal of the TPO
on the grounds that it did not (1) comply with the three-day notice rule, and (2) contain
a notice of hearing. He further asked that the TPO be modified by (1) removing one
vehicle used by private respondent and returning the same to its rightful owner, the J-
Bros Trading Corporation, and (2) cancelling or reducing the amount of the bond from
P5,000,000.00 to a more manageable level at P100,000.00.
Subsequently, on May 23, 2006, petitioner moved 22 for the modification of the TPO
to allow him visitation rights to his children.
On May 24, 2006, the TPO was renewed and extended yet again, but subject only to
the following modifications prayed for by private respondent:
a) That respondent (petitioner herein) return the clothes and other personal
belongings of Rosalie and her children to Judge Jesus Ramos, co-counsel for
Petitioner, within 24 hours from receipt of the Temporary Protection Order by his
counsel, otherwise be declared in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture and equipment in the
conjugal house in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours
from receipt of the Temporary Protection Order by his counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters
to remove Respondent from the conjugal dwelling within eight (8) hours from receipt
of the Temporary Protection Order by his counsel, and that he cannot return until 48
hours after the petitioners have left, so that the petitioner Rosalie and her
representatives can remove things from the conjugal home and make an inventory of
the household furniture, equipment and other things in the conjugal home, which shall
be submitted to the Court.
d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and
Php25,000.00 for clothes of the three petitioners (sic) children within 24 hours from
receipt of the Temporary Protection Order by his counsel, otherwise be declared in
indirect contempt of Court; DaHSIT
e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk
of Court within 24 hours from receipt of the Temporary Protection Order by his
counsel;
f) That respondent shall pay petitioner educational expenses of the children upon
presentation of proof of payment of such expenses. 23
Claiming that petitioner continued to deprive them of financial support; failed to
faithfully comply with the TPO; and committed new acts of harassment against her
and their children, private respondent filed another application 24 for the issuance of
a TPO ex parte. She alleged inter alia that petitioner contrived a replevin suit against
himself by J-Bros Trading, Inc., of which the latter was purportedly no longer
president, with the end in view of recovering the Nissan Patrol and Starex Van used
by private respondent and the children. A writ of replevin was served upon private
respondent by a group of six or seven policemen with long firearms that scared the
two small boys, Jessie Anthone and Joseph Eduard. 25
While Joseph Eduard, then three years old, was driven to school, two men allegedly
attempted to kidnap him, which incident traumatized the boy resulting in his refusal to
go back to school. On another occasion, petitioner allegedly grabbed their daughter,
Jo-Ann, by the arm and threatened her. 26 The incident was reported to the police,
and Jo-Ann subsequently filed a criminal complaint against her father for violation of
R.A. 7610, also known as the "Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids
working at the conjugal home of a complaint for kidnapping and illegal detention
against private respondent. This came about after private respondent, armed with a
TPO, went to said home to get her and her children's belongings. Finding some of her
things inside a housemaid's (Sheryl Jamola) bag in the maids' room, private
respondent filed a case for qualified theft against Jamola. 27 CDTHSI
On August 23, 2006, the RTC issued a TPO, 28 effective for thirty (30) days, which
reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing, personally or through another,
acts of violence against the offended party;
2) Prohibited from harassing, annoying, telephoning, contacting or otherwise
communicating in any form with the offended party, either directly or indirectly;
3) Required to stay away, personally or through his friends, relatives, employees or
agents, from all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's
three brothers, her mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo
Hontiveros, laundrywoman Mercedita Bornales, security guard Darwin Gayona and
the petitioner's other household helpers from a distance of 1,000 meters, and shall
not enter the gate of the subdivision where the Petitioners are temporarily residing, as
well as from the schools of the three children; Furthermore, that respondent shall not
contact the schools of the children directly or indirectly in any manner including,
ostensibly to pay for their tuition or other fees directly, otherwise he will have access
to the children through the schools and the TPO will be rendered nugatory;
4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther
PPK to the Court;
5) Directed to deliver in full financial support of Php200,000.00 a month and
Php50,000.00 for rental for the period from August 6 to September 6, 2006; and
support in arrears from March 2006 to August 2006 the total amount of
Php1,312,000.00; CIaDTE
6) Directed to deliver educational expenses for 2006-2007 the amount of
Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and
a Starex van with Plate No. FFD 991 and should the respondent fail to deliver said
vehicles, respondent is ordered to provide the petitioner another vehicle which is the
one taken by J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of
the conjugal assets, or those real properties in the name of Jesus Chua Garcia only
and those in which the conjugal partnership of gains of the Petitioner Rosalie J.
Garcia and respondent have an interest in, especially the conjugal home located in
No. 14, Pitimini St., Capitolville Subdivision, Bacolod City, and other properties which
are conjugal assets or those in which the conjugal partnership of gains of Petitioner
Rosalie J. Garcia and the respondent have an interest in and listed in Annexes "I,"
"I-1," and "I-2," including properties covered by TCT Nos. T-186325 and T-168814;
9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be
served a copy of this TEMPORARY PROTECTION ORDER and are ordered not to
allow the transfer, sale, encumbrance or disposition of these above-cited properties to
any person, entity or corporation without the personal presence of petitioner Rosalie
J. Garcia, who shall affix her signature in the presence of the Register of Deeds, due
to the fear of petitioner Rosalie that her signature will be forged in order to effect the
encumbrance or sale of these properties to defraud her or the conjugal partnership of
gains.
In its Order 29 dated September 26, 2006, the trial court extended the aforequoted
TPO for another ten (10) days, and gave petitioner a period of five (5) days within
which to show cause why the TPO should not be renewed, extended, or modified.
Upon petitioner's manifestation, 30 however, that he has not received a copy of
private respondent's motion to modify/renew the TPO, the trial court directed in its
Order 31 dated October 6, 2006 that petitioner be furnished a copy of said motion.
Nonetheless, an Order 32 dated a day earlier, October 5, had already been issued
renewing the TPO dated August 23, 2006. The pertinent portion is quoted hereunder:
xxx xxx xxx
. . . it appearing further that the hearing could not yet be finally terminated, the
Temporary Protection Order issued on August 23, 2006 is hereby renewed and
extended for thirty (30) days and continuously extended and renewed for thirty (30)
days, after each expiration, until further orders, and subject to such modifications as
may be ordered by the court. STHAaD
After having received a copy of the foregoing Order, petitioner no longer submitted
the required comment to private respondent's motion for renewal of the TPO arguing
that it would only be an "exercise in futility."
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed before the Court of
Appeals (CA) a petition 34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer
for injunction and temporary restraining order, challenging (1) the constitutionality of
R.A. 9262 for being violative of the due process and the equal protection clauses, and
(2) the validity of the modified TPO issued in the civil case for being "an unwanted
product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order
35 (TRO) against the enforcement of the TPO, the amended TPOs and other orders
pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court dismissed 36 the
petition for failure of petitioner to raise the constitutional issue in his pleadings before
the trial court in the civil case, which is clothed with jurisdiction to resolve the same.
Secondly, the challenge to the validity of R.A. 9262 through a petition for prohibition
seeking to annul the protection orders issued by the trial court constituted a collateral
attack on said law.
His motion for reconsideration of the foregoing Decision having been denied in the
Resolution 37 dated August 14, 2007, petitioner is now before us alleging that
The Issues
I. THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE
THEORY THAT THE ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE
EARLIEST OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A
COLLATERAL ATTACK ON THE VALIDITY OF THE LAW. EcHIAC
II. THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO
CONCLUDE THAT R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF
THE EQUAL PROTECTION CLAUSE.
III. THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING
THAT R.A. 9262 RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE
CONSTITUTION.
IV. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES
VIOLENCE TO THE POLICY OF THE STATE TO PROTECT THE FAMILY AS A
BASIC SOCIAL INSTITUTION.
V. THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No.
9262 AS INVALID AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE
DELEGATION OF JUDICIAL POWER TO THE BARANGAY OFFICIALS. 38
The Ruling of the Court
Before delving into the arguments propounded by petitioner against the
constitutionality of R.A. 9262, we shall first tackle the propriety of the dismissal by the
appellate court of the petition for prohibition (CA-G.R. CEB-SP. No. 01698) filed by
petitioner.
As a general rule, the question of constitutionality must be raised at the earliest
opportunity so that if not raised in the pleadings, ordinarily it may not be raised in the
trial, and if not raised in the trial court, it will not be considered on appeal. 39 Courts
will not anticipate a question of constitutional law in advance of the necessity of
deciding it. 40
In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of
Bacolod City, petitioner argues that the Family Court has limited authority and
jurisdiction that is "inadequate to tackle the complex issue of constitutionality." 41
We disagree.
Family Courts have authority
and jurisdiction to consider the
constitutionality of a statute.
At the outset, it must be stressed that Family Courts are special courts, of the same
level as Regional Trial Courts. Under R.A. 8369, otherwise known as the "Family
Courts Act of 1997," family courts have exclusive original jurisdiction to hear and
decide cases of domestic violence against women and children. 42 In accordance
with said law, the Supreme Court designated from among the branches of the
Regional Trial Courts at least one Family Court in each of several key cities identified.
43 To achieve harmony with the first mentioned law, Section 7 of R.A. 9262 now
provides that Regional Trial Courts designated as Family Courts shall have original
and exclusive jurisdiction over cases of VAWC defined under the latter law, viz.:
SEC. 7. Venue. The Regional Trial Court designated as a Family Court shall have
original and exclusive jurisdiction over cases of violence against women and their
children under this law. In the absence of such court in the place where the offense
was committed, the case shall be filed in the Regional Trial Court where the crime or
any of its elements was committed at the option of the complainant. (Emphasis
supplied) HIAESC
Inspite of its designation as a family court, the RTC of Bacolod City remains
possessed of authority as a court of general original jurisdiction to pass upon all kinds
of cases whether civil, criminal, special proceedings, land registration, guardianship,
naturalization, admiralty or insolvency. 44 It is settled that RTCs have jurisdiction to
resolve the constitutionality of a statute, 45 "this authority being embraced in the
general definition of the judicial power to determine what are the valid and binding
laws by the criterion of their conformity to the fundamental law." 46 The Constitution
vests the power of judicial review or the power to declare the constitutionality or
validity of a law, treaty, international or executive agreement, presidential decree,
order, instruction, ordinance, or regulation not only in this Court, but in all RTCs. 47
We said in J.M. Tuason and Co., Inc. v. CA 48 that, "[p]lainly the Constitution
contemplates that the inferior courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of appellate review of final
judgments of inferior courts in cases where such constitutionality happens to be in
issue." Section 5, Article VIII of the 1987 Constitution reads in part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question. aADSIc
xxx xxx xxx
Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262
could have been raised at the earliest opportunity in his Opposition to the petition for
protection order before the RTC of Bacolod City, which had jurisdiction to determine
the same, subject to the review of this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their
Children, lays down a new kind of procedure requiring the respondent to file an
opposition to the petition and not an answer. 49 Thus:
SEC. 20. Opposition to petition. (a) The respondent may file an opposition to the
petition which he himself shall verify. It must be accompanied by the affidavits of
witnesses and shall show cause why a temporary or permanent protection order
should not be issued.
(b) Respondent shall not include in the opposition any counterclaim, cross-claim or
third-party complaint, but any cause of action which could be the subject thereof may
be litigated in a separate civil action. (Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner that, since a counterclaim,
cross-claim and third-party complaint are to be excluded from the opposition, the
issue of constitutionality cannot likewise be raised therein. A counterclaim is defined
as any claim for money or other relief which a defending party may have against an
opposing party. 50 A cross-claim, on the other hand, is any claim by one party against
a co-party arising out of the transaction or occurrence that is the subject matter either
of the original action or of a counterclaim therein. 51 Finally, a third-party complaint is
a claim that a defending party may, with leave of court, file against a person not a
party to the action for contribution, indemnity, subrogation or any other relief, in
respect of his opponent's claim. 52 As pointed out by Justice Teresita J. Leonardo-de
Castro, the unconstitutionality of a statute is not a cause of action that could be the
subject of a counterclaim, cross-claim or a third-party complaint. Therefore, it is not
prohibited from being raised in the opposition in view of the familiar maxim expressio
unius est exclusio alterius. IHcSCA
Moreover, it cannot be denied that this issue affects the resolution of the case a quo
because the right of private respondent to a protection order is founded solely on the
very statute the validity of which is being attacked 53 by petitioner who has sustained,
or will sustain, direct injury as a result of its enforcement. The alleged
unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid cause for the
non-issuance of a protection order.
That the proceedings in Civil Case No. 06-797 are summary in nature should not
have deterred petitioner from raising the same in his Opposition. The question relative
to the constitutionality of a statute is one of law which does not need to be supported
by evidence. 54 Be that as it may, Section 25 of A.M. No. 04-10-11-SC nonetheless
allows the conduct of a hearing to determine legal issues, among others, viz.:
SEC. 25. Order for further hearing. In case the court determines the need for
further hearing, it may issue an order containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been marked and will be
presented;
(d) Names of witnesses who will be ordered to present their direct testimonies in the
form of affidavits; and
(e) Schedule of the presentation of evidence by both parties which shall be done in
one day, to the extent possible, within the 30-day period of the effectivity of the
temporary protection order issued. (Emphasis supplied)
To obviate potential dangers that may arise concomitant to the conduct of a hearing
when necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary
protection order issued is due to expire, the trial court may extend or renew the said
order for a period of thirty (30) days each time until final judgment is rendered. It may
likewise modify the extended or renewed temporary protection order as may be
necessary to meet the needs of the parties. With the private respondent given ample
protection, petitioner could proceed to litigate the constitutional issues, without
necessarily running afoul of the very purpose for the adoption of the rules on
summary procedure.
In view of all the foregoing, the appellate court correctly dismissed the petition for
prohibition with prayer for injunction and temporary restraining order (CA-G.R. CEB-
SP. No. 01698). Petitioner may have proceeded upon an honest belief that if he finds
succor in a superior court, he could be granted an injunctive relief. However, Section
22 (j) of A.M. No. 04-10-11-SC expressly disallows the filing of a petition for certiorari,
mandamus or prohibition against any interlocutory order issued by the trial court.
Hence, the 60-day TRO issued by the appellate court in this case against the
enforcement of the TPO, the amended TPOs and other orders pursuant thereto was
improper, and it effectively hindered the case from taking its normal course in an
expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari before judgment is
prohibited. Moreover, if the appeal of a judgment granting permanent protection shall
not stay its enforcement, 55 with more reason that a TPO, which is valid only for thirty
(30) days at a time, 56 should not be enjoined.
The mere fact that a statute is alleged to be unconstitutional or invalid, does not of
itself entitle a litigant to have the same enjoined. 57 In Younger v. Harris, Jr., 58 the
Supreme Court of the United States declared, thus:
Federal injunctions against state criminal statutes, either in their entirety or with
respect to their separate and distinct prohibitions, are not to be granted as a matter of
course, even if such statutes are unconstitutional. No citizen or member of the
community is immune from prosecution, in good faith, for his alleged criminal acts.
The imminence of such a prosecution even though alleged to be unauthorized and,
hence, unlawful is not alone ground for relief in equity which exerts its extraordinary
powers only to prevent irreparable injury to the plaintiff who seeks its aid. (Citations
omitted)
The sole objective of injunctions is to preserve the status quo until the trial court hears
fully the merits of the case. It bears stressing, however, that protection orders are
granted ex parte so as to protect women and their children from acts of violence. To
issue an injunction against such orders will defeat the very purpose of the law against
VAWC.
Notwithstanding all these procedural flaws, we shall not shirk from our obligation to
determine novel issues, or issues of first impression, with far-reaching implications.
We have, time and again, discharged our solemn duty as final arbiter of constitutional
issues, and with more reason now, in view of private respondent's plea in her
Comment 59 to the instant Petition that we should put the challenge to the
constitutionality of R.A. 9262 to rest. And so we shall.
Intent of Congress in
enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal
and child abuse, which could very well be committed by either the husband or the
wife, gender alone is not enough basis to deprive the husband/father of the remedies
under the law. 60
A perusal of the deliberations of Congress on Senate Bill No. 2723, 61 which became
R.A. 9262, reveals that while the sponsor, Senator Luisa Pimentel-Ejercito (better
known as Senator Loi Estrada), had originally proposed what she called a
"synthesized measure" 62 an amalgamation of two measures, namely, the "Anti-
Domestic Violence Act" and the "Anti-Abuse of Women in Intimate Relationships Act"
63 providing protection to "all family members, leaving no one in isolation" but at
the same time giving special attention to women as the "usual victims" of violence
and abuse, 64 nonetheless, it was eventually agreed that men be denied protection
under the same measure. We quote pertinent portions of the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr. President. Some
women's groups have expressed concerns and relayed these concerns to me that if
we are to include domestic violence apart from against women as well as other
members of the household, including children or the husband, they fear that this
would weaken the efforts to address domestic violence of which the main victims or
the bulk of the victims really are the wives, the spouses or the female partners in a
relationship. We would like to place that on record. How does the good Senator
respond to this kind of observation?
Senator Estrada. Yes, Mr. President, there is this group of women who call
themselves "WIIR" Women in Intimate Relationship. They do not want to include men
in this domestic violence. But plenty of men are also being abused by women. I am
playing safe so I placed here members of the family, prescribing penalties therefor
and providing protective measures for victims. This includes the men, children, live-in,
common-law wives, and those related with the family. 65
xxx xxx xxx
Wednesday, January 14, 2004
xxx xxx xxx
The President Pro Tempore. . . .
Also, may the Chair remind the group that there was the discussion whether to limit
this to women and not to families which was the issue of the AWIR group. The
understanding that I have is that we would be having a broader scope rather than just
women, if I remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan during the
interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of the measure. Do not
get me wrong. However, I believe that there is a need to protect women's rights
especially in the domestic environment.
As I said earlier, there are nameless, countless, voiceless women who have not had
the opportunity to file a case against their spouses, their live-in partners after years, if
not decade, of battery and abuse. If we broaden the scope to include even the men,
assuming they can at all be abused by the women or their spouses, then it would not
equalize the already difficult situation for women, Mr. President. aIcDCA
I think that the sponsor, based on our earlier conversations, concurs with this position.
I am sure that the men in this Chamber who love their women in their lives so dearly
will agree with this representation. Whether we like it or not, it is an unequal world.
Whether we like it or not, no matter how empowered the women are, we are not given
equal opportunities especially in the domestic environment where the macho Filipino
man would always feel that he is stronger, more superior to the Filipino woman.
xxx xxx xxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the committee came up with
this bill because the family members have been included in this proposed measure
since the other members of the family other than women are also possible victims of
violence. While women are most likely the intended victims, one reason incidentally
why the measure focuses on women, the fact remains that in some relatively few
cases, men also stand to be victimized and that children are almost always the
helpless victims of violence. I am worried that there may not be enough protection
extended to other family members particularly children who are excluded. Although
Republic Act No. 7610, for instance, more or less, addresses the special needs of
abused children. The same law is inadequate. Protection orders for one are not
available in said law.
I am aware that some groups are apprehensive about granting the same protection to
men, fearing that they may use this law to justify their abusive behavior against
women. However, we should also recognize that there are established procedures
and standards in our courts which give credence to evidentiary support and cannot
just arbitrarily and whimsically entertain baseless complaints. cSCADE
Mr. President, this measure is intended to harmonize family relations and to protect
the family as the basic social institution. Though I recognize the unequal power
relations between men and women in our society, I believe we have an obligation to
uphold inherent rights and dignity of both husband and wife and their immediate
family members, particularly children.
While I prefer to focus mainly on women, I was compelled to include other family
members as a critical input arrived at after a series of consultations/meetings with
various NGOs, experts, sports groups and other affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other senators.
Senator Sotto. Yes, with the permission of the two ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.
Senator Sotto. I presume that the effect of the proposed amendment of Senator
Legarda would be removing the "men and children" in this particular bill and focus
specifically on women alone. That will be the net effect of that proposed amendment.
Hearing the rationale mentioned by the distinguished sponsor, Sen. Luisa "Loi"
Ejercito Estrada, I am not sure now whether she is inclined to accept the proposed
amendment of Senator Legarda.
I am willing to wait whether she is accepting this or not because if she is going to
accept this, I will propose an amendment to the amendment rather than object to the
amendment, Mr. President. EcATDH
xxx xxx xxx
Senator Estrada. The amendment is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
xxx xxx xxx
Senator Sotto. . . . May I propose an amendment to the amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the rationale used by the
distinguished proponent of the amendment. As a matter of fact, I tend to agree. Kung
may maaabuso, mas malamang iyong babae kaysa sa lalake. At saka iyong mga
lalake, puwede na talagang magulpi iyan. Okey lang iyan. But I cannot agree that we
remove the children from this particular measure.
So, if I may propose an amendment
The President Pro Tempore. To the amendment.
Senator Sotto. more than the women, the children are very much abused. As a
matter of fact, it is not limited to minors. The abuse is not limited to seven, six, 5-year-
old children. I have seen 14, 15-year-old children being abused by their fathers, even
by their mothers. And it breaks my heart to find out about these things.
Because of the inadequate existing law on abuse of children, this particular measure
will update that. It will enhance and hopefully prevent the abuse of children and not
only women. DEScaT
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove the aspect of the men
in the bill but not the children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
The President Pro Tempore. Effectively then, it will be women AND CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] There being none, the
amendment, as amended, is approved. 66
It is settled that courts are not concerned with the wisdom, justice, policy, or
expediency of a statute. 67 Hence, we dare not venture into the real motivations and
wisdom of the members of Congress in limiting the protection against violence and
abuse under R.A. 9262 to women and children only. No proper challenge on said
grounds may be entertained in this proceeding. Congress has made its choice and it
is not our prerogative to supplant this judgment. The choice may be perceived as
erroneous but even then, the remedy against it is to seek its amendment or repeal by
the legislative. By the principle of separation of powers, it is the legislative that
determines the necessity, adequacy, wisdom and expediency of any law. 68 We only
step in when there is a violation of the Constitution. However, none was sufficiently
shown in this case.
R.A. 9262 does not violate
the guaranty of equal protection
of the laws.
Equal protection simply requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed. The oft-
repeated disquisition in the early case of Victoriano v. Elizalde Rope Workers' Union
69 is instructive:
The guaranty of equal protection of the laws is not a guaranty of equality in the
application of the laws upon all citizens of the state. It is not, therefore, a requirement,
in order to avoid the constitutional prohibition against inequality, that every man,
woman and child should be affected alike by a statute. Equality of operation of
statutes does not mean indiscriminate operation on persons merely as such, but on
persons according to the circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things which are different in
fact be treated in law as though they were the same. The equal protection clause
does not forbid discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is directed or by the territory
within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification.
Classification in law, as in the other departments of knowledge or practice, is the
grouping of things in speculation or practice because they agree with one another in
certain particulars. A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the mere fact of
inequality in no manner determines the matter of constitutionality. All that is required
of a valid classification is that it be reasonable, which means that the classification
should be based on substantial distinctions which make for real differences; that it
must be germane to the purpose of the law; that it must not be limited to existing
conditions only; and that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification or distinction is based
on a reasonable foundation or rational basis and is not palpably arbitrary. (Emphasis
supplied)
Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is
based on a valid classification as shall hereinafter be discussed and, as such, did not
violate the equal protection clause by favoring women over men as victims of violence
and abuse to whom the State extends its protection. IDAaCc
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the fact that women are
more likely than men to be victims of violence; and the widespread gender bias and
prejudice against women all make for real differences justifying the classification
under the law. As Justice McIntyre succinctly states, "the accommodation of
differences . . . is the essence of true equality." 70
A. Unequal power relationship
between men and women
According to the Philippine Commission on Women (the National Machinery for
Gender Equality and Women's Empowerment), violence against women (VAW) is
deemed to be closely linked with the unequal power relationship between women and
men otherwise known as "gender-based violence". Societal norms and traditions
dictate people to think men are the leaders, pursuers, providers, and take on
dominant roles in society while women are nurturers, men's companions and
supporters, and take on subordinate roles in society. This perception leads to men
gaining more power over women. With power comes the need to control to retain that
power. And VAW is a form of men's expression of controlling women to retain power.
The United Nations, which has long recognized VAW as a human rights issue, passed
its Resolution 48/104 on the Declaration on Elimination of Violence Against Women
on December 20, 1993 stating that "violence against women is a manifestation of
historically unequal power relations between men and women, which have led to
domination over and discrimination against women by men and to the prevention of
the full advancement of women, and that violence against women is one of the crucial
social mechanisms by which women are forced into subordinate positions, compared
with men." 72
Then Chief Justice Reynato S. Puno traced the historical and social context of
gender-based violence and developments in advocacies to eradicate VAW, in his
remarks delivered during the Joint Launching of R.A. 9262 and its Implementing
Rules last October 27, 2004, the pertinent portions of which are quoted hereunder:
History reveals that most societies sanctioned the use of violence against women.
The patriarch of a family was accorded the right to use force on members of the
family under his control. I quote the early studies:
Traditions subordinating women have a long history rooted in patriarchy the
institutional rule of men. Women were seen in virtually all societies to be naturally
inferior both physically and intellectually. In ancient Western societies, women
whether slave, concubine or wife, were under the authority of men. In law, they were
treated as property.
The Roman concept of patria potestas allowed the husband to beat, or even kill, his
wife if she endangered his property right over her. Judaism, Christianity and other
religions oriented towards the patriarchal family strengthened the male dominated
structure of society.
English feudal law reinforced the tradition of male control over women. Even the
eminent Blackstone has been quoted in his commentaries as saying husband and
wife were one and that one was the husband. However, in the late 1500s and through
the entire 1600s, English common law began to limit the right of husbands to chastise
their wives. Thus, common law developed the rule of thumb, which allowed husbands
to beat their wives with a rod or stick no thicker than their thumb. TcDAHS
In the later part of the 19th century, legal recognition of these rights to chastise wives
or inflict corporeal punishment ceased. Even then, the preservation of the family was
given more importance than preventing violence to women.
The metamorphosis of the law on violence in the United States followed that of the
English common law. In 1871, the Supreme Court of Alabama became the first
appellate court to strike down the common law right of a husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair,
choke her, spit in her face or kick her about the floor, or to inflict upon her like
indignities, is not now acknowledged by our law. . . In person, the wife is entitled to
the same protection of the law that the husband can invoke for himself.
As time marched on, the women's advocacy movement became more organized. The
temperance leagues initiated it. These leagues had a simple focus. They considered
the evils of alcoholism as the root cause of wife abuse. Hence, they demonstrated
and picketed saloons, bars and their husbands' other watering holes. Soon, however,
their crusade was joined by suffragette movements, expanding the liberation
movement's agenda. They fought for women's right to vote, to own property, and
more. Since then, the feminist movement was on the roll.
The feminist movement exposed the private invisibility of the domestic violence to the
public gaze. They succeeded in transforming the issue into an important public
concern. No less than the United States Supreme Court, in 1992 case Planned
Parenthood v. Casey, noted:
In an average 12-month period in this country, approximately two million women are
the victims of severe assaults by their male partners. In a 1985 survey, women
reported that nearly one of every eight husbands had assaulted their wives during the
past year. The [American Medical Association] views these figures as "marked
underestimates," because the nature of these incidents discourages women from
reporting them, and because surveys typically exclude the very poor, those who do
not speak English well, and women who are homeless or in institutions or hospitals
when the survey is conducted. According to the AMA, "researchers on family violence
agree that the true incidence of partner violence is probably double the above
estimates; or four million severely assaulted women per year." cIDHSC
Studies on prevalence suggest that from one-fifth to one-third of all women will be
physically assaulted by a partner or ex-partner during their lifetime. . . Thus on an
average day in the United States, nearly 11,000 women are severely assaulted by
their male partners. Many of these incidents involve sexual assault. . . In families
where wife beating takes place, moreover, child abuse is often present as well.
Other studies fill in the rest of this troubling picture. Physical violence is only the most
visible form of abuse. Psychological abuse, particularly forced social and economic
isolation of women, is also common.
Many victims of domestic violence remain with their abusers, perhaps because they
perceive no superior alternative . . . Many abused women who find temporary refuge
in shelters return to their husbands, in large part because they have no other source
of income. . . Returning to one's abuser can be dangerous. Recent Federal Bureau of
Investigation statistics disclose that 8.8 percent of all homicide victims in the United
States are killed by their spouses . . . Thirty percent of female homicide victims are
killed by their male partners.
Finally in 1994, the United States Congress enacted the Violence Against Women
Act.
In the International front, the women's struggle for equality was no less successful.
The United States Charter and the Universal Declaration of Human Rights affirmed
the equality of all human beings. In 1979, the UN General Assembly adopted the
landmark Convention on the Elimination of all Forms of Discrimination Against
Women (CEDAW). In 1993, the UN General Assembly also adopted the Declaration
on the Elimination of Violence Against Women. World conferences on the role and
rights of women have been regularly held in Mexico City, Copenhagen, Nairobi and
Beijing. The UN itself established a Commission on the Status of Women.
The Philippines has been in cadence with the half and full steps of all these
women's movements. No less than Section 14, Article II of our 1987 Constitution
mandates the State to recognize the role of women in nation building and to ensure
the fundamental equality before the law of women and men. Our Senate has ratified
the CEDAW as well as the Convention on the Rights of the Child and its two
protocols. To cap it all, Congress, on March 8, 2004, enacted Rep. Act No. 9262,
entitled "An Act Defining Violence Against Women and Their Children, Providing for
Protective Measures for Victims, Prescribing Penalties therefor and for other
Purposes." (Citations omitted)
B. Women are the "usual" and "most likely"
victims of violence.
At the time of the presentation of Senate Bill No. 2723, official statistics on violence
against women and children show that
. . . physical injuries had the highest number of cases at 5,058 in 2002 representing
55.63% of total cases reported (9,903). And for the first semester of 2003, there were
2,381 reported cases out of 4,354 cases which represent 54.31%. . . . (T)he total
number of women in especially difficult circumstances served by the Department of
Social Welfare and Development (DSWD) for the year 2002, there are 1,417
physically abused/maltreated cases out of the total of 5,608 cases. . . . (T)here are
1,091 DSWD cases out of a total number of 3,471 cases for the first semester of
2003. Female violence comprised more than 90% of all forms of abuse and violence
and more than 90% of these reported cases were committed by the women's intimate
partners such as their husbands and live-in partners. 73
Recently, the Philippine Commission on Women presented comparative statistics on
violence against women across an eight-year period from 2004 to August of 2011 with
violations under R.A. 9262 ranking first among the different VAW categories since its
implementation in 2004, 74 thus:
On the other hand, no reliable estimates may be obtained on domestic abuse and
violence against men in the Philippines because incidents thereof are relatively low
and, perhaps, because many men will not even attempt to report the situation. In the
United Kingdom, 32% of women who had ever experienced domestic violence did so
four or five (or more) times, compared with 11% of the smaller number of men who
had ever experienced domestic violence; and women constituted 89% of all those
who had experienced 4 or more incidents of domestic violence. 75 Statistics in
Canada show that spousal violence by a woman against a man is less likely to cause
injury than the other way around (18 percent versus 44 percent). Men, who
experience violence from their spouses are much less likely to live in fear of violence
at the hands of their spouses, and much less likely to experience sexual assault. In
fact, many cases of physical violence by a woman against a spouse are in self-
defense or the result of many years of physical or emotional abuse. 76 CADSHI
While there are, indeed, relatively few cases of violence and abuse perpetrated
against men in the Philippines, the same cannot render R.A. 9262 invalid.
In a 1960 case involving the violation of a city ordinance requiring drivers of animal-
drawn vehicles to pick up, gather and deposit in receptacles the manure emitted or
discharged by their vehicle-drawing animals in any public highways, streets, plazas,
parks or alleys, said ordinance was challenged as violative of the guaranty of equal
protection of laws as its application is limited to owners and drivers of vehicle-drawing
animals and not to those animals, although not utilized, but similarly pass through the
same streets.
The ordinance was upheld as a valid classification for the reason that, while there
may be non-vehicle-drawing animals that also traverse the city roads, "but their
number must be negligible and their appearance therein merely occasional,
compared to the rig-drawing ones, as not to constitute a menace to the health of the
community." 77 The mere fact that the legislative classification may result in actual
inequality is not violative of the right to equal protection, for every classification of
persons or things for regulation by law produces inequality in some degree, but the
law is not thereby rendered invalid. 78 TcSHaD
C. Gender bias and prejudices
From the initial report to the police through prosecution, trial, and sentencing, crimes
against women are often treated differently and less seriously than other crimes. This
was argued by then United States Senator Joseph R. Biden, Jr., now Vice President,
chief sponsor of the Violence Against Women Act (VAWA), in defending the civil rights
remedy as a valid exercise of the U.S. Congress' authority under the Commerce and
Equal Protection Clauses. He stressed that the widespread gender bias in the U.S.
has institutionalized historic prejudices against victims of rape or domestic violence,
subjecting them to "double victimization" first at the hands of the offender and then
of the legal system. 79
Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No.
2723 that "(w)henever violence occurs in the family, the police treat it as a private
matter and advise the parties to settle the conflict themselves. Once the complainant
brings the case to the prosecutor, the latter is hesitant to file the complaint for fear
that it might later be withdrawn. This lack of response or reluctance to be involved by
the police and prosecution reinforces the escalating, recurring and often serious
nature of domestic violence." 80
Sadly, our own courts, as well, have exhibited prejudices and biases against our
women.
In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila
for Conduct Unbecoming of a Judge. He used derogatory and irreverent language in
reference to the complainant in a petition for TPO and PPO under R.A. 9262, calling
her as "only a live-in partner" and presenting her as an "opportunist" and a "mistress"
in an "illegitimate relationship." Judge Amila even called her a "prostitute," and
accused her of being motivated by "insatiable greed" and of absconding with the
contested property. 81 Such remarks betrayed Judge Amila's prejudices and lack of
gender sensitivity.
The enactment of R.A. 9262 aims to address the discrimination brought about by
biases and prejudices against women. As emphasized by the CEDAW Committee on
the Elimination of Discrimination against Women, addressing or correcting
discrimination through specific measures focused on women does not discriminate
against men. 82 Petitioner's contention, 83 therefore, that R.A. 9262 is discriminatory
and that it is an "anti-male," "husband-bashing," and "hate-men" law deserves scant
consideration. As a State Party to the CEDAW, the Philippines bound itself to take all
appropriate measures "to modify the social and cultural patterns of conduct of men
and women, with a view to achieving the elimination of prejudices and customary and
all other practices which are based on the idea of the inferiority or the superiority of
either of the sexes or on stereotyped roles for men and women." 84 Justice Puno
correctly pointed out that "(t)he paradigm shift changing the character of domestic
violence from a private affair to a public offense will require the development of a
distinct mindset on the part of the police, the prosecution and the judges." 85
II. The classification is germane to the purpose of the law.
The distinction between men and women is germane to the purpose of R.A. 9262,
which is to address violence committed against women and children, spelled out in its
Declaration of Policy, as follows:
SEC. 2. Declaration of Policy. It is hereby declared that the State values the dignity
of women and children and guarantees full respect for human rights. The State also
recognizes the need to protect the family and its members particularly women and
children, from violence and threats to their personal safety and security.
Towards this end, the State shall exert efforts to address violence committed against
women and children in keeping with the fundamental freedoms guaranteed under the
Constitution and the provisions of the Universal Declaration of Human Rights, the
Convention on the Elimination of All Forms of Discrimination Against Women,
Convention on the Rights of the Child and other international human rights
instruments of which the Philippines is a party. DHECac
In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines
ratified on August 5, 1981. Subsequently, the Optional Protocol to the CEDAW was
also ratified by the Philippines on October 6, 2003. 86 This Convention mandates that
State parties shall accord to women equality with men before the law 87 and shall
take all appropriate measures to eliminate discrimination against women in all matters
relating to marriage and family relations on the basis of equality of men and women.
88 The Philippines likewise ratified the Convention on the Rights of the Child and its
two protocols. 89 It is, thus, bound by said Conventions and their respective
protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the existing conditions when it
was promulgated, but to future conditions as well, for as long as the safety and
security of women and their children are threatened by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer violence and abuse.
Section 3 thereof defines VAWC as:
. . . any act or a series of acts committed by any person against a woman who is his
wife, former wife, or against a woman with whom the person has or had a sexual or
dating relationship, or with whom he has a common child, or against her child whether
legitimate or illegitimate, within or without the family abode, which result in or is likely
to result in physical, sexual, psychological harm or suffering, or economic abuse
including threats of such acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty. It includes, but is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in nature, committed against a
woman or her child. It includes, but is not limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a
sex object, making demeaning and sexually suggestive remarks, physically attacking
the sexual parts of the victim's body, forcing her/him to watch obscene publications
and indecent shows or forcing the woman or her child to do indecent acts and/or
make films thereof, forcing the wife and mistress/lover to live in the conjugal home or
sleep together in the same room with the abuser;
b) acts causing or attempting to cause the victim to engage in any sexual activity by
force, threat of force, physical or other harm or threat of physical or other harm or
coercion;
c) Prostituting the woman or child.
C."Psychological violence" refers to acts or omissions causing or likely to cause
mental or emotional suffering of the victim such as but not limited to intimidation,
harassment, stalking, damage to property, public ridicule or humiliation, repeated
verbal abuse and mental infidelity. It includes causing or allowing the victim to witness
the physical, sexual or psychological abuse of a member of the family to which the
victim belongs, or to witness pornography in any form or to witness abusive injury to
pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of
common children. CDEaAI
D. "Economic abuse" refers to acts that make or attempt to make a woman financially
dependent which includes, but is not limited to the following:
1. withdrawal of financial support or preventing the victim from engaging in any
legitimate profession, occupation, business or activity, except in cases wherein the
other spouse/partner objects on valid, serious and moral grounds as defined in Article
73 of the Family Code;
2. deprivation or threat of deprivation of financial resources and the right to the use
and enjoyment of the conjugal, community or property owned in common;
3. destroying household property;
4. controlling the victims' own money or properties or solely controlling the conjugal
money or properties.
It should be stressed that the acts enumerated in the aforequoted provision are
attributable to research that has exposed the dimensions and dynamics of battery.
The acts described here are also found in the U.N. Declaration on the Elimination of
Violence Against Women. 90 Hence, the argument advanced by petitioner that the
definition of what constitutes abuse removes the difference between violent action
and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and ambiguous that will
confuse petitioner in his defense. The acts enumerated above are easily understood
and provide adequate contrast between the innocent and the prohibited acts. They
are worded with sufficient definiteness that persons of ordinary intelligence can
understand what conduct is prohibited, and need not guess at its meaning nor differ in
its application. 91 Yet, petitioner insists 92 that phrases like "depriving or threatening
to deprive the woman or her child of a legal right," "solely controlling the conjugal or
common money or properties," "marital infidelity," and "causing mental or emotional
anguish" are so vague that they make every quarrel a case of spousal abuse.
However, we have stressed that the "vagueness" doctrine merely requires a
reasonable degree of certainty for the statute to be upheld not absolute precision
or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than
meticulous specificity, is permissible as long as the metes and bounds of the statute
are clearly delineated. An act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its provisions. 93
There is likewise no merit to the contention that R.A. 9262 singles out the husband or
father as the culprit. As defined above, VAWC may likewise be committed "against a
woman with whom the person has or had a sexual or dating relationship." Clearly, the
use of the gender-neutral word "person" who has or had a sexual or dating
relationship with the woman encompasses even lesbian relationships. Moreover,
while the law provides that the offender be related or connected to the victim by
marriage, former marriage, or a sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the Revised Penal Code (RPC). Thus,
in the case of Go-Tan v. Spouses Tan, 94 the parents-in-law of Sharica Mari L. Go-
Tan, the victim, were held to be proper respondents in the case filed by the latter upon
the allegation that they and their son (Go-Tan's husband) had community of design
and purpose in tormenting her by giving her insufficient financial support; harassing
and pressuring her to be ejected from the family home; and in repeatedly abusing her
verbally, emotionally, mentally and physically. TCIEcH
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of
all protections afforded by the due process clause of the Constitution. Says he: "On
the basis of unsubstantiated allegations, and practically no opportunity to respond,
the husband is stripped of family, property, guns, money, children, job, future
employment and reputation, all in a matter of seconds, without an inkling of what
happened." 95
A protection order is an order issued to prevent further acts of violence against
women and their children, their family or household members, and to grant other
necessary reliefs. Its purpose is to safeguard the offended parties from further harm,
minimize any disruption in their daily life and facilitate the opportunity and ability to
regain control of their life. 96
"The scope of reliefs in protection orders is broadened to ensure that the victim or
offended party is afforded all the remedies necessary to curtail access by a
perpetrator to the victim. This serves to safeguard the victim from greater risk of
violence; to accord the victim and any designated family or household member safety
in the family residence, and to prevent the perpetrator from committing acts that
jeopardize the employment and support of the victim. It also enables the court to
award temporary custody of minor children to protect the children from violence, to
prevent their abduction by the perpetrator and to ensure their financial support." 97
The rules require that petitions for protection order be in writing, signed and verified
by the petitioner 98 thereby undertaking full responsibility, criminal or civil, for every
allegation therein. Since "time is of the essence in cases of VAWC if further violence
is to be prevented," 99 the court is authorized to issue ex parte a TPO after raffle but
before notice and hearing when the life, limb or property of the victim is in jeopardy
and there is reasonable ground to believe that the order is necessary to protect the
victim from the immediate and imminent danger of VAWC or to prevent such violence,
which is about to recur. 100
There need not be any fear that the judge may have no rational basis to issue an ex
parte order. The victim is required not only to verify the allegations in the petition, but
also to attach her witnesses' affidavits to the petition. 101
The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right
to due process. Just like a writ of preliminary attachment which is issued without
notice and hearing because the time in which the hearing will take could be enough to
enable the defendant to abscond or dispose of his property, 102 in the same way, the
victim of VAWC may already have suffered harrowing experiences in the hands of her
tormentor, and possibly even death, if notice and hearing were required before such
acts could be prevented. It is a constitutional commonplace that the ordinary
requirements of procedural due process must yield to the necessities of protecting
vital public interests, 103 among which is protection of women and children from
violence and threats to their personal safety and security.
It should be pointed out that when the TPO is issued ex parte, the court shall likewise
order that notice be immediately given to the respondent directing him to file an
opposition within five (5) days from service. Moreover, the court shall order that
notice, copies of the petition and TPO be served immediately on the respondent by
the court sheriffs. The TPOs are initially effective for thirty (30) days from service on
the respondent. 104
Where no TPO is issued ex parte, the court will nonetheless order the immediate
issuance and service of the notice upon the respondent requiring him to file an
opposition to the petition within five (5) days from service. The date of the preliminary
conference and hearing on the merits shall likewise be indicated on the notice. 105
The opposition to the petition which the respondent himself shall verify, must be
accompanied by the affidavits of witnesses and shall show cause why a temporary or
permanent protection order should not be issued. 106 HSCcTD
It is clear from the foregoing rules that the respondent of a petition for protection order
should be apprised of the charges imputed to him and afforded an opportunity to
present his side. Thus, the fear of petitioner of being "stripped of family, property,
guns, money, children, job, future employment and reputation, all in a matter of
seconds, without an inkling of what happened" is a mere product of an overactive
imagination. The essence of due process is to be found in the reasonable opportunity
to be heard and submit any evidence one may have in support of one's defense. "To
be heard" does not only mean verbal arguments in court; one may be heard also
through pleadings. Where opportunity to be heard, either through oral arguments or
pleadings, is accorded, there is no denial of procedural due process. 107
It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent
Ex-Parte Motion for Renewal of the TPO that was granted only two days earlier on
April 24, 2006. Likewise, on May 23, 2006, petitioner filed a motion for the
modification of the TPO to allow him visitation rights to his children. Still, the trial court
in its Order dated September 26, 2006, gave him five days (5) within which to show
cause why the TPO should not be renewed or extended. Yet, he chose not to file the
required comment arguing that it would just be an "exercise in futility," conveniently
forgetting that the renewal of the questioned TPO was only for a limited period (30
days) each time, and that he could prevent the continued renewal of said order if he
can show sufficient cause therefor. Having failed to do so, petitioner may not now be
heard to complain that he was denied due process of law.
Petitioner next laments that the removal and exclusion of the respondent in the VAWC
case from the residence of the victim, regardless of ownership of the residence, is
virtually a "blank check" issued to the wife to claim any property as her conjugal
home. 108
The wording of the pertinent rule, however, does not by any stretch of the imagination
suggest that this is so. It states: aIETCA
SEC. 11. Reliefs available to the offended party. The protection order shall include
any, some or all of the following reliefs:
xxx xxx xxx
(c) Removing and excluding the respondent from the residence of the offended party,
regardless of ownership of the residence, either temporarily for the purpose of
protecting the offended party, or permanently where no property rights are violated. If
the respondent must remove personal effects from the residence, the court shall
direct a law enforcement agent to accompany the respondent to the residence,
remain there until the respondent has gathered his things and escort him from the
residence;
xxx xxx xxx
Indubitably, petitioner may be removed and excluded from private respondent's
residence, regardless of ownership, only temporarily for the purpose of protecting the
latter. Such removal and exclusion may be permanent only where no property rights
are violated. How then can the private respondent just claim any property and
appropriate it for herself, as petitioner seems to suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of
encouraging mediation and counseling, the law has done violence to the avowed
policy of the State to "protect and strengthen the family as a basic autonomous social
institution." 109
Under Section 23 (c) of A.M. No. 04-10-11-SC, the court shall not refer the case or
any issue thereof to a mediator. The reason behind this provision is well-explained by
the Commentary on Section 311 of the Model Code on Domestic and Family Violence
as follows: 110
This section prohibits a court from ordering or referring parties to mediation in a
proceeding for an order for protection. Mediation is a process by which parties in
equivalent bargaining positions voluntarily reach consensual agreement about the
issue at hand. Violence, however, is not a subject for compromise. A process which
involves parties mediating the issue of violence implies that the victim is somehow at
fault. In addition, mediation of issues in a proceeding for an order of protection is
problematic because the petitioner is frequently unable to participate equally with the
person against whom the protection order has been sought. (Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the exercise of judicial power which,
under the Constitution, is placed upon the "Supreme Court and such other lower
courts as may be established by law" and, thus, protests the delegation of power to
barangay officials to issue protection orders. 111 The pertinent provision reads, as
follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. Barangay
Protection Orders (BPOs) refer to the protection order issued by the Punong
Barangay ordering the perpetrator to desist from committing acts under Section 5 (a)
and (b) of this Act. A Punong Barangay who receives applications for a BPO shall
issue the protection order to the applicant on the date of filing after ex parte
determination of the basis of the application. If the Punong Barangay is unavailable to
act on the application for a BPO, the application shall be acted upon by any available
Barangay Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be
accompanied by an attestation by the Barangay Kagawad that the Punong Barangay
was unavailable at the time of the issuance of the BPO. BPOs shall be effective for
fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong
Barangay or Barangay Kagawad shall personally serve a copy of the same on the
respondent, or direct any barangay official to effect its personal service.
The parties may be accompanied by a non-lawyer advocate in any proceeding before
the Punong Barangay.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
112 On the other hand, executive power "is generally defined as the power to enforce
and administer the laws. It is the power of carrying the laws into practical operation
and enforcing their due observance." 113
As clearly delimited by the aforequoted provision, the BPO issued by the Punong
Barangay or, in his unavailability, by any available Barangay Kagawad, merely orders
the perpetrator to desist from (a) causing physical harm to the woman or her child;
and (2) threatening to cause the woman or her child physical harm. Such function of
the Punong Barangay is, thus, purely executive in nature, in pursuance of his duty
under the Local Government Code to "enforce all laws and ordinances," and to
"maintain public order in the barangay." 114
We have held that "(t)he mere fact that an officer is required by law to inquire into the
existence of certain facts and to apply the law thereto in order to determine what his
official conduct shall be and the fact that these acts may affect private rights do not
constitute an exercise of judicial powers." 115
In the same manner as the public prosecutor ascertains through a preliminary inquiry
or proceeding "whether there is reasonable ground to believe that an offense has
been committed and the accused is probably guilty thereof," the Punong Barangay
must determine reasonable ground to believe that an imminent danger of violence
against the woman and her children exists or is about to recur that would necessitate
the issuance of a BPO. The preliminary investigation conducted by the prosecutor is,
concededly, an executive, not a judicial, function. The same holds true with the
issuance of a BPO. DHEcCT
We need not even belabor the issue raised by petitioner that since barangay officials
and other law enforcement agencies are required to extend assistance to victims of
violence and abuse, it would be very unlikely that they would remain objective and
impartial, and that the chances of acquittal are nil. As already stated, assistance by
barangay officials and other law enforcement agencies is consistent with their duty to
enforce the law and to maintain peace and order.
Conclusion
Before a statute or its provisions duly challenged are voided, an unequivocal breach
of, or a clear conflict with the Constitution, not merely a doubtful or argumentative
one, must be demonstrated in such a manner as to leave no doubt in the mind of the
Court. In other words, the grounds for nullity must be beyond reasonable doubt. 116
In the instant case, however, no concrete evidence and convincing arguments were
presented by petitioner to warrant a declaration of the unconstitutionality of R.A.
9262, which is an act of Congress and signed into law by the highest officer of the co-
equal executive department. As we said in Estrada v. Sandiganbayan, 117 courts
must assume that the legislature is ever conscious of the borders and edges of its
plenary powers, and passed laws with full knowledge of the facts and for the purpose
of promoting what is right and advancing the welfare of the majority.
We reiterate here Justice Puno's observation that "the history of the women's
movement against domestic violence shows that one of its most difficult struggles was
the fight against the violence of law itself. If we keep that in mind, law will not again be
a hindrance to the struggle of women for equality but will be its fulfillment." 118
Accordingly, the constitutionality of R.A. 9262 is, as it should be, sustained.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack
of merit.
SO ORDERED.
OPOSA V FACTORAN
DAVIDE, JR., J p:
In a broader sense, this petition bears upon the right of Filipinos to a balanced and
healthful ecology which the petitioners dramatically associate with the twin concepts
of "inter-generational responsibility" and "inter-generational justice." Specifically, it
touches on the issue of whether the said petitioners have a cause of action to
"prevent the misappropriation or impairment" of Philippine rainforests and "arrest the
unabated hemorrhage of the country's vital life-support systems and continued rape
of Mother Earth."
The controversy has its genesis in Civil Case No. 90-777 which was filed before
Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital
Judicial Region. The principal plaintiffs therein, now the principal petitioners, are all
minors duly represented and joined by their respective parents. Impleaded as an
additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-
stock and non-profit corporation organized for the purpose of, inter alia, engaging in
concerted action geared for the protection of our environment and natural resources.
The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary
of the Department of Environment and Natural Resources (DENR). His substitution in
this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently
ordered upon proper motion by the petitioners. 1 The complaint 2 was instituted as a
taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of
the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the
natural resource treasure that is the country's virgin tropical rainforests." The same
was filed for themselves and others who are equally concerned about the
preservation of said resource but are "so numerous that it is impracticable to bring
them all before the Court." The minors further asseverate that they "represent their
generation as well as generations yet unborn." 4 Consequently, it is prayed for that
judgment be rendered:
". . . ordering defendant, his agents, representatives and other persons acting in his
behalf to
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving
new timber license agreements."
and granting the plaintiffs ". . . such other reliefs just and equitable under the
premises." 5
The complaint starts off with the general averments that the Philippine archipelago of
7,100 islands has a land area of thirty million (30,000,000) hectares and is endowed
with rich, lush and verdant rainforests in which varied, rare and unique species of
flora and fauna may be found; these rainforests contain a genetic, biological and
chemical pool which is irreplaceable; they are also the habitat of indigenous
Philippine cultures which have existed, endured and flourished since time
immemorial; scientific evidence reveals that in order to maintain a balanced and
healthful ecology, the country's land area should be utilized on the basis of a ratio of
fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural,
residential, industrial, commercial and other uses; the distortion and disturbance of
this balance as a consequence of deforestation have resulted in a host of
environmental tragedies, such as (a) water shortages resulting from the drying up of
the water table, otherwise known as the "aquifer," as well as of rivers, brooks and
streams, (b) salinization of the water table as a result of the intrusion therein of salt
water, incontrovertible examples of which may be found in the island of Cebu and the
Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil
fertility and agricultural productivity, with the volume of soil eroded estimated at one
billion (1,000,000,000) cubic meters per annum approximately the size of the entire
island of Catanduanes, (d) the endangering and extinction of the country's unique,
rare and varied flora and fauna, (e) the disturbance and dislocation of cultural
communities, including the disappearance of the Filipino's indigenous cultures, (f) the
siltation of rivers and seabeds and consequential destruction of corals and other
aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent
spells of drought as is presently experienced by the entire country, (h) increasing
velocity of typhoon winds which result from the absence of windbreakers, (i) the
flooding of lowlands and agricultural plains arising from the absence of the absorbent
mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion
peso dams constructed and operated for the purpose of supplying water for domestic
uses, irrigation and the generation of electric power, and (k) the reduction of the
earth's capacity to process carbon dioxide gases which has led to perplexing and
catastrophic climatic changes such as the phenomenon of global warming, otherwise
known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued
deforestation are so capable of unquestionable demonstration that the same may be
submitted as a matter of judicial notice. This notwithstanding, they expressed their
intention to present expert witnesses as well as documentary, photographic and film
evidence in the course of the trial.
As their cause of action, they specifically allege that:
"CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares
of rainforests constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million
hectares of said rainforests or four per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago
and about 3.0 million hectares of immature and uneconomical secondary growth
forests.
11. Public records reveal that defendant's predecessors have granted timber license
agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million
hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached as
Annex 'A'.
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25
hectares per hour nighttime, Saturdays, Sundays and holidays included the
Philippines will be bereft of forest resources after the end of this ensuing decade, if
not earlier.
13. The adverse effects, disastrous consequences, serious injury and irreparable
damage of this continued trend of deforestation to the plaintiff minors' generation and
to generations yet unborn are evident and incontrovertible. As a matter of fact, the
environmental damages enumerated in paragraph 6 hereof are already being felt,
experienced and suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the
remaining forest stands will work great damage and irreparable injury to plaintiffs
especially plaintiff minors and their successors who may never see, use, benefit
from and enjoy this rare and unique natural resource treasure.
This act of defendant constitutes a misappropriation and/or impairment of the natural
resource property he holds in trust for the benefit of plaintiff minors and succeeding
generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology
and are entitled to protection by the State in its capacity as the parens patriae.
16. Plaintiffs have exhausted all administrative remedies with the defendant's office.
On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all
logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex 'B'.
17. Defendant, however, fails and refuses to cancel the existing TLA's, to the
continuing serious damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an act
violative of the rights of plaintiffs, especially plaintiff minors who may be left with a
country that is desertified (sic), bare, barren and devoid of the wonderful flora, fauna
and indigenous cultures which the Philippines has been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to
the public policy enunciated in the Philippine Environmental Policy which, in pertinent
part, states that it is the policy of the State
'(a) to create, develop, maintain and improve conditions under which man and nature
can thrive in productive and enjoyable harmony with each other;
'(b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos and;
'(c) to ensure the attainment of an environmental quality that is conducive to a life of
dignity and well-being'. (P.D. 1151, 6 June 1977).
20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is
contradictory to the Constitutional policy of the State to
a. effect 'a more equitable distribution of opportunities, income and wealth' and 'make
full and efficient use of natural resources (sic).' (Section 1, Article XII of the
Constitution);
b. 'protect the nation's marine wealth.' (Section 2, ibid);
c. 'conserve and promote the nation's cultural heritage and resources (sic).' (Section
14, Article XIV, id.);
d. 'protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.' (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind the natural
law and violative of plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant
action to arrest the unabated hemorrhage of the country's vital life-support systems
and continued rape of Mother Earth." 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to
Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no
cause of action against him and (2) the issue raised by the plaintiffs is a political
question which properly pertains to the legislative or executive branches of
Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain
that (1) the complaint shows a clear and unmistakable cause of action, (2) the motion
is dilatory and (3) the action presents a justiciable question as it involves the
defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned
motion to dismiss. 7 In the said order, not only was the defendant's claim that the
complaint states no cause of action against him and that it raises a political question
 sustained, the respondent Judge further ruled that the granting of the reliefs
prayed for would result in the impairment of contracts which is prohibited by the
fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the
Revised Rules of Court and ask this Court to rescind and set aside the dismissal
order on the ground that the respondent Judge gravely abused his discretion in
dismissing the action. Again, the parents of the plaintiffs-minors not only represent
their children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the
parties to submit their respective Memoranda after the Office of the Solicitor General
(OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply
thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of
action as it contains sufficient allegations concerning their right to a sound
environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations),
Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16,
Article II of the 1987 Constitution recognizing the right of the people to a balanced
and healthful ecology, the concept of generational genocide in Criminal Law and the
concept of man's inalienable right to self-preservation and self-perpetuation embodied
in natural law. Petitioners likewise rely on the respondent's correlative obligation, per
Section 4 of E.O. No. 192, the safeguard the people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse
of discretion in granting Timber License Agreements (TLAs) to cover more areas for
logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment
clause, petitioners maintain that the same does not apply in this case because TLAs
are not contracts. They likewise submit that even if TLAs may be considered
protected by the said clause, it is well settled that they may still be revoked by the
State when public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their
complaint a specific legal right violated by the respondent Secretary for which any
relief is provided by law. They see nothing in the complaint but vague and nebulous
allegations concerning an "environmental right" which supposedly entitles the
petitioners to the "protection by the state in its capacity as parens patriae." Such
allegations, according to them, do not reveal a valid cause of action. They then
reiterate the theory that the question of whether logging should be permitted in the
country is a political question which should be properly addressed to the executive or
legislative branches of Government. They therefore assert that the petitioners'
recourse is not to file an action in court, but to lobby before Congress for the passage
of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same
cannot be done by the State without due process of law. Once issued, a TLA remains
effective for a certain period of time usually for twenty-five (25) years. During its
effectivity, the same can neither be revised nor cancelled unless the holder has been
found, after due notice and hearing, to have violated the terms of the agreement or
other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the
requirements of due process.
Before going any further, We must first focus on some procedural matters. Petitioners
instituted Civil Case No. 90-777 as a class suit. The original defendant and the
present respondents did not take issue with this matter. Nevertheless, We hereby rule
that the said civil case is indeed a class suit. The subject matter of the complaint is of
common and general interest not just to several, but to all citizens of the Philippines.
Consequently, since the parties are so numerous, it becomes impracticable, if not
totally impossible, to bring all of them before the court. We likewise declare that the
plaintiffs therein are numerous and representative enough to ensure the full protection
of all concerned interests. Hence, all the requisites for the filing of a valid class suit
under Section 12, Rule 3 of the Revised Rules of Court are present both in the said
civil case and in the instant petition, the latter being but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that
they represent their generation as well as generations yet unborn. We find no difficulty
in ruling that they can, for themselves, for others of their generation and for the
succeeding generations, file a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers the "rhythm and harmony of
nature." Nature means the created world in its entirety. 9 Such rhythm and harmony
indispensably include, inter alia, the judicious disposition, utilization, management,
renewal and conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources to the end that their exploration,
development and utilization be equitably accessible to the present as well as future
generations. 10 Needless to say, every generation has a responsibility to the next to
preserve that rhythm and harmony for the full enjoyment of a balanced and healthful
ecology. Put a little differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the performance of their obligation to
ensure the protection of that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now
proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration
and evaluation of the issues raised and arguments adduced by the parties, We do not
hesitate to find for the petitioners and rule against the respondent Judge's challenged
order for having been issued with grave abuse of discretion amounting to lack of
jurisdiction. The pertinent portions of the said order read as follows:
"After a careful and circumspect evaluation of the Complaint, the Court cannot help
but agree with the defendant. For although we believe that plaintiffs have but the
noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a
specific legal right they are seeking to enforce and protect, or a specific legal wrong
they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague assumptions and vague
conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action in
its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with
political color and involving a matter of public policy, may not be taken cognizance of
by this Court without doing violence to the sacred principle of 'Separation of Powers'
of the three (3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease and desist from receiving,
accepting, processing renewing or approving new timber license agreements. For to
do otherwise would amount to 'impairment of contracts' abhored (sic) by the
fundamental law." 11
We do not agree with the trial court's conclusion that the plaintiffs failed to allege with
sufficient definiteness a specific legal right involved or a specific legal wrong
committed, and that the complaint is replete with vague assumptions and conclusions
based on unverified data. A reading of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right the right to a
balanced and healthful ecology which, for the first time in our nation's constitutional
history, is solemnly incorporated in the fundamental law. Section 16, Article II of the
1987 Constitution explicitly provides:
"SEC. 16. The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature."
This right unites with the right to health which is provided for in the preceding section
of the same article:
"SEC. 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them."
While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of Rights, it does
not follow that it is less important than any of the civil and political rights enumerated
in the latter. Such a right belongs to a different category of rights altogether for it
concerns nothing less than self-preservation and self-perpetuation aptly and
fittingly stressed by the petitioners the advancement of which may even be said to
predate all governments and constitutions. As a matter of fact, these basic rights need
not even be written in the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly mentioned in the fundamental
charter, it is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies by the
Constitution itself, thereby highlighting their continuing importance and imposing upon
the state a solemn obligation to preserve the first and protect and advance the
second, the day would not be too far when all else would be lost not only for the
present generation, but also for those to come generations which stand to inherit
nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to
refrain from impairing the environment. During the debates on this right in one of the
plenary sessions of the 1986 Constitutional Commission, the following exchange
transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo
Azcuna who sponsored the section in question:
"MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of
pollution air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily carries
with it the correlative duty of not impairing the same and, therefore, sanctions may be
provided for impairment of environmental balance." 12
The said right implies, among many other things, the judicious management and
conservation of the country's forests. Without such forests, the ecological or
environmental balance would be irreversibly disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the
right to health, as well as the other related provisions of the Constitution concerning
the conservation, development and utilization of the country's natural resources, 13
then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14
Section 4 of which expressly mandates that the Department of Environment and
Natural Resources "shall be the primary government agency responsible for the
conservation, management, development and proper use of the country's
environment and natural resources, specifically forest and grazing lands, mineral
resources, including those in reservation and watershed areas, and lands of the
public domain, as well as the licensing and regulation of all natural resources as may
be provided for by law in order to ensure equitable sharing of the benefits derived
therefrom for the welfare of the present and future generations of Filipinos." Section 3
thereof makes the following statement of policy:
"SEC. 3. Declaration of Policy. It is hereby declared the policy of the State to
ensure the sustainable use, development, management, renewal, and conservation of
the country's forest, mineral, land, off-shore areas and other natural resources,
including the protection and enhancement of the quality of the environment, and
equitable access of the different segments of the population to the development and
use of the country's natural resources, not only for the present generation but for
future generations as well. It is also the policy of the state to recognize and apply a
true value system including social and environmental cost implications relative to their
utilization; development and conservation of our natural resources."
This policy declaration is substantially re-stated in Title XIV, Book IV of the
Administrative Code of 1987, 15 specifically in Section 1 thereof which reads:
"SEC. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the
Filipino people, the full exploration and development as well as the judicious
disposition, utilization, management, renewal and conservation of the country's forest,
mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources,
consistent with the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment and the objective of making
the exploration, development and utilization of such natural resources equitably
accessible to the different segments of the present as well as future generations.
(2) The State shall likewise recognize and apply a true value system that takes into
account social and environmental cost implications relative to the utilization,
development and conservation of our natural resources."
The above provision stresses "the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality of the environment." Section 2 of
the same Title, on the other hand, specifically speaks of the mandate of the DENR;
however, it makes particular reference to the fact of the agency's being subject to law
and higher authority. Said section provides:
"SEC. 2. Mandate. (1) The Department of Environment and Natural Resources
shall be primarily responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the State's
constitutional mandate to control and supervise the exploration, development,
utilization, and conservation of the country's natural resources."
Both E.O. No. 192 and the Administrative Code of 1987 have set the objectives which
will serve as the bases for policy formulation, and have defined the powers and
functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution,
specific statutes already paid special attention to the "environmental right" of the
present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine
Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued.
The former "declared a continuing policy of the State (a) to create, develop, maintain
and improve conditions under which man and nature can thrive in productive and
enjoyable harmony with each other, (b) to fulfill the social, economic and other
requirements of present and future generations of Filipinos, and (c) to insure the
attainment of an environmental quality that is conducive to a life of dignity and well-
being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee
and guardian of the environment for succeeding generations." 17 The latter statute,
on the other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and
healthful ecology is as clear as the DENR's duty under its mandate and by virtue of
its powers and functions under E.O. No. 192 and the Administrative Code of 1987
to protect and advance the said right.
A denial or violation of that right by the other who has the correlative duty or obligation
to respect or protect the same gives rise to a cause of action. Petitioners maintain
that the granting of the TLAs, which they claim was done with grave abuse of
discretion, violated their right to a balanced and healthful ecology; hence, the full
protection thereof requires that no further TLAs should be renewed or granted.
A cause of action is defined as:
". . . an act or omission of one party in violation of the legal right or rights of the other;
and its essential elements are legal right of the plaintiff, correlative obligation of the
defendant, and act or omission of the defendant in violation of said legal right." 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the
complaint fails to state a cause of action, 19 the question submitted to the court for
resolution involves the sufficiency of the facts alleged in the complaint itself. No other
matter should be considered; furthermore, the truth or falsity of the said allegations is
beside the point for the truth thereof is deemed hypothetically admitted. The only
issue to be resolved in such a case is: admitting such alleged facts to be true, may
the court render a valid judgment in accordance with the prayer in the complaint? 20
In Militante vs. Edrosolano, 21 this Court laid down the rule that the judiciary should
"exercise the utmost care and circumspection in passing upon a motion to dismiss on
the ground of the absence thereof [cause of action] lest, by its failure to manifest a
correct appreciation of the facts alleged and deemed hypothetically admitted, what
the law grants or recognizes is effectively nullified. If that happens, there is a blot on
the legal order. The law itself stands in disrepute."
After a careful examination of the petitioners' complaint, We find the statements under
the introductory affirmative allegations, as well as the specific averments under the
subheading CAUSE OF ACTION, to be adequate enough to show, prima facie, the
claimed violation of their rights. On the basis thereof, they may thus be granted,
wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as the
cancellation of the TLAs is concerned, there is the need to implead, as party
defendants, the grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 cannot be said to raise a political
question. Policy formulation or determination by the executive or legislative branches
of Government is not squarely put in issue. What is principally involved is the
enforcement of a right vis-a-vis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that the political question doctrine is
no longer the insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from judicial inquiry
or review. The second paragraph of section 1, Article VIII of the Constitution states
that:
"Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government."
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice
Isagani A. Cruz, a distinguished member of this Court, says:
"The first part of the authority represents the traditional concept of judicial power,
involving the settlement of conflicting rights as conferred by law. The second part of
the authority represents a broadening of judicial power to enable the courts of justice
to review what was before forbidden territory, to wit, the discretion of the political
departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme
Court, the power to rule upon even the wisdom of the decisions of the executive and
the legislature and to declare their acts invalid for lack or excess of jurisdiction
because tainted with grave abuse of discretion. The catch, of course, is the meaning
of 'grave abuse of discretion,' which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary."
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
"In the case now before us, the jurisdictional objection becomes even less tenable
and decisive. The reason is that, even if we were to assume that the issue presented
before us was political in nature, we would still not be precluded from resolving it
under the expanded jurisdiction conferred upon us that now covers, in proper cases,
even the political question. Article VII, Section 1, of the Constitution clearly
provides: . . ."
The last ground invoked by the trial court in dismissing the complaint is the non-
impairment of contracts clause found in the Constitution. The court a quo declared
that:
"The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease and desist from receiving,
accepting, processing, renewing or approving new timber license agreements. For to
do otherwise would amount to 'impairment of contracts' abhored (sic) by the
fundamental law." 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such
a sweeping pronouncement. In the first place, the respondent Secretary did not, for
obvious reasons, even invoke in his motion to dismiss the non-impairment clause. If
he had done so, he would have acted with utmost infidelity to the Government by
providing undue and unwarranted benefits and advantages to the timber license
holders because he would have forever bound the Government to strictly respect the
said licenses according to their terms and conditions regardless of changes in policy
and the demands of public interest and welfare. He was aware that as correctly
pointed out by the petitioners, into every timber license must be read Section 20 of
the Forestry Reform Code (P.D. No. 705) which provides:
". . . Provided, That when the national interest so requires, the President may amend,
modify, replace or rescind any contract, concession, permit, licenses or any other
form of privilege granted herein . . ."
Needless to say, all licenses may thus be revoked or rescinded by executive action. It
is not a contract, property or a property right protected by the due process clause of
the Constitution. In Tan vs. Director of Forestry, 25 this Court held:
". . . A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber
license is not a contract within the purview of the due process clause; it is only a
license or privilege, which can be validly withdrawn whenever dictated by public
interest or public welfare as in this case.
'A license is merely a permit or privilege to do what otherwise would be unlawful, and
is not a contract between the authority, federal, state, or municipal, granting it and the
person to whom it is granted; neither is it property or a property right, nor does it
create a vested right; nor is it taxation' (37 C.J. 168). Thus, this Court held that the
granting of license does not create irrevocable rights, neither is it property or property
rights (People vs. Ong Tin, 54 O.G. 7576) . . ."
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy
Executive Secretary: 26
". . . Timber licenses, permits and license agreements are the principal instruments by
which the State regulates the utilization and disposition of forest resources to the end
that public welfare is promoted. And it can hardly be gainsaid that they merely
evidence a privilege granted by the State to qualified entities, and do not vest in the
latter a permanent or irrevocable right to the particular concession area and the forest
products therein. They may be validly amended, modified, replaced or rescinded by
the Chief Executive when national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law clause [See Sections 3(ee) and
20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry,G.R. No.
L-24548, October 27, 1983, 125 SCRA 302]."
Since timber licenses are not contracts, the non-impairment clause, which reads:
"SEC. 10. No law impairing the obligation of contracts shall be passed. cannot be
invoked.
In the second place, even if it is to be assumed that the same are contracts, the
instant case does not involve a law or even an executive issuance declaring the
cancellation or modification of existing timber licenses. Hence, the non-impairment
clause cannot as yet be invoked. Nevertheless, granting further that a law has
actually been passed mandating cancellations or modifications, the same cannot still
be stigmatized as a violation of the non-impairment clause. This is because by its very
nature and purpose, such a law could have only been passed in the exercise of the
police power of the state for the purpose of advancing the right of the people to a
balanced and healthful ecology, promoting their health and enhancing the general
welfare. In Abe vs. Foster Wheeler Corp., 28 this Court stated:
"The freedom of contract, under our system of government, is not meant to be
absolute. The same is understood to be subject to reasonable legislative regulation
aimed at the promotion of public health, moral, safety and welfare. In other words, the
constitutional guaranty of non-impairment of obligations of contract is limited by the
exercise of the police power of the State, in the interest of public health, safety, moral
and general welfare."
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in
Philippine American Life Insurance Co. vs. Auditor General, 30 to wit:
" 'Under our form of government the use of property and the making of contracts are
normally matters of private and not of public concern. The general rule is that both
shall be free of governmental interference. But neither property rights nor contract
rights are absolute; for government cannot exist if the citizen may at will use his
property to the detriment of his fellows, or exercise his freedom of contract to work
them harm. Equally fundamental with the private right is that of the public to regulate
it in the common interest.' "
In court, the non-impairment clause must yield to the police power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause
could apply with respect to the prayer to enjoin the respondent Secretary from
receiving, accepting, processing, renewing or approving new timber licenses for, save
in cases of renewal, no contract would have as of yet existed in the other instances.
Moreover, with respect to renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED,
and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case
No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint
to implead as defendants the holders or grantees of the questioned timber license
agreements.
No pronouncement as to costs.
SO ORDERED.
FELICIANO, J., CONCURRING:
CONSTITUTIONAL LAW; DECLARATION OF PRINCIPLES AND STATE POLICIES;
RIGHT TO "A BALANCE AND HEALTHFUL ECOLOGY"; INTERPRETATION. The
Court has also declared that the complaint has alleged and focused upon "one
specific fundamental legal right the right to a balanced and healthful
ecology" (Decision, p. 14). There is no question that "the right to a balanced and
healthful ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I suggest, with very
great respect, that it cannot be characterized as "specific," without doing excessive
violence to language. It is in fact very difficult to fashion language more
comprehensive in scope and generalized in character than a right to "a balanced and
healthful ecology." The list of particular claims which can be subsumed under this
rubric appears to be entirely open-ended: prevention and control of emission of toxic
fumes and smoke from factories and motor vehicles; of discharge of oil, chemical
effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels,
oil rigs, factories, mines and whole communities; of dumping of organic and inorganic
wastes on open land, streets and thoroughfares; failure to rehabilitate land after strip-
mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries,
coral reefs and other living sea resources through the use of dynamite or cyanide and
other chemicals; contamination of ground water resources; loss of certain species of
fauna and flora; and so on. The other statements pointed out by the Court: Section 3,
Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the
1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 all appear to be
formulations of policy, as general and abstract as the constitutional statements of
basic policy in Article II, Sections 16 ("the right to a balanced and healthful
ecology") and 15 ("the right to health"). As a matter of logic, by finding petitioners'
cause of action as anchored on a legal right comprised in the constitutional
statements above noted, the Court is in effect saying that Section 15 (and Section 16)
of Article II of the Constitution are self-executing and judicially enforceable even in
their present form. The implications of this doctrine will have to be explored in future
cases; those implications are too large and far-reaching in nature even to be hinted at
here.
LLDA VS CA (1994)
ROMERO, J p:
The clash between the responsibility of the City Government of Caloocan to dispose
of the 350 tons of garbage it collects daily and the growing concern and sensitivity to
a pollution-free environment of the residents of Barangay Camarin, Tala Estate,
Caloocan City where these tons of garbage are dumped everyday is the hub of this
controversy elevated by the protagonists to the Laguna Lake Development Authority
(LLDA) for adjudication. cda
The instant case stemmed from an earlier petition filed with this Court by Laguna
Lake Development Authority (LLDA for short) docketed as G.R. No. 107542 against
the City Government of Caloocan, et al. In the Resolution of November 10, 1992, this
Court referred G.R. No. 107542 to the Court of Appeals for appropriate disposition.
Docketed therein as CA-G.R. SP No. 29449, the Court of Appeals, in a decision 1
promulgated on January 29, 1993 ruled that the LLDA has no power and authority to
issue a cease and desist order enjoining the dumping of garbage in Barangay
Camarin, Tala Estate, Caloocan City. The LLDA now seeks, in this petition, a review
of the decision of the Court of Appeals. LibLex
The facts, as disclosed in the records, are undisputed.
On March 8, 1991, the Task Force Camarin Dumpsite of Our Lady of Lourdes Parish,
Barangay Camarin, Caloocan City, filed a letter-complaint 2 with the Laguna Lake
Development Authority seeking to stop the operation of the 8.6-hectare open garbage
dumpsite in Tala Estate, Barangay Camarin, Caloocan City due to its harmful effects
on the health of the residents and the possibility of pollution of the water content of
the surrounding area.
On November 15, 1991, the LLDA conducted an on-site investigation, monitoring and
test sampling of the leachate 3 that seeps from said dumpsite to the nearby creek
which is a tributary of the Marilao River. The LLDA Legal and Technical personnel
found that the City Government of Caloocan was maintaining an open dumpsite at the
Camarin area without first securing an Environmental Compliance Certificate (ECC)
from the Environmental Management Bureau (EMB) of the Department of
Environment and Natural Resources, as required under Presidential Decree No.
1586, 4 and clearance from LLDA as required under Republic Act No. 4850, 5 as
amended by Presidential Decree No. 813 and Executive Order No. 927, series of
1983. 6
After a public hearing conducted on December 4, 1991, the LLDA, acting on the
complaint of Task Force Camarin Dumpsite, found that the water collected from the
leachate and the receiving streams could considerably affect the quality, in turn, of the
receiving waters since it indicates the presence of bacteria, other than coliform, which
may have contaminated the sample during collection or handling. 7 On December 5,
1991, the LLDA issued a Cease and Desist Order 8 ordering the City Government of
Caloocan, Metropolitan Manila Authority, their contractors, and other entities, to
completely halt, stop and desist from dumping any form or kind of garbage and other
waste matter at the Camarin dumpsite.
The dumping operation was forthwith stopped by the City Government of Caloocan.
However, sometime in August 1992 the dumping operation was resumed after a
meeting held in July 1992 among the City Government of Caloocan, the
representatives of Task Force Camarin Dumpsite and LLDA at the Office of
Environmental Management Bureau Director Rodrigo U. Fuentes failed to settle the
problem.
After an investigation by its team of legal and technical personnel on August 14, 1992,
the LLDA issued another order reiterating the December 5, 1991 order and issued an
Alias Cease and Desist Order enjoining the City Government of Caloocan from
continuing its dumping operations at the Camarin area.
On September 25, 1992, the LLDA, with the assistance of the Philippine National
Police, enforced its Alias Cease and Desist Order by prohibiting the entry of all
garbage dump trucks into the Tala Estate, Camarin area being utilized as a dumpsite.
Pending resolution of its motion for reconsideration earlier filed on September 17,
1992 with the LLDA, the City Government of Caloocan filed with the Regional Trial
Court of Caloocan City an action for the declaration of nullity of the cease and desist
order with prayer for the issuance of a writ of injunction, docketed as Civil Case No.
C-15598. In its complaint, the City Government of Caloocan sought to be declared as
the sole authority empowered to promote the health and safety and enhance the right
of the people in Caloocan City to a balanced ecology within its territorial jurisdiction. 9
On September 25, 1992, the Executive Judge of the Regional Trial Court of Caloocan
City issued a temporary restraining order enjoining the LLDA from enforcing its cease
and desist order. Subsequently, the case was raffled to the Regional Trial Court,
Branch 126 of Caloocan which, at the time, was presided over by Judge Manuel Jn.
Serapio of the Regional Trial Court, Branch 127, the pairing judge of the recently-
retired presiding judge.
The LLDA, for its part, filed on October 2, 1992 a motion to dismiss on the ground,
among others, that under Republic Act No. 3931, as amended by Presidential Decree
No. 984, otherwise known as the Pollution Control Law, the cease and desist order
issued by it which is the subject matter of the complaint is reviewable both upon the
law and the facts of the case by the Court of Appeals and not by the Regional Trial
Court. 10
On October 12, 1992 Judge Manuel Jn. Serapio issued an order consolidating Civil
Case No. C-15598 with Civil Case No. C-15580, an earlier case filed by the Task
Force Camarin Dumpsite entitled "Fr. John Moran, et al. vs. Hon. Macario Asistio."
The LLDA, however, maintained during the trial that the foregoing cases, being
independent of each other, should have been treated separately. LexLib
On October 16, 1992, Judge Manuel Jn. Serapio, after hearing the motion to dismiss,
issued in the consolidated cases an order 11 denying LLDA's motion to dismiss and
granting the issuance of a writ of preliminary injunction enjoining the LLDA, its agent
and all persons acting for and on its behalf, from enforcing or implementing its cease
and desist order which prevents plaintiff City of Caloocan from dumping garbage at
the Camarin dumpsite during the pendency of this case and/or until further orders of
the court.
On November 5, 1992, the LLDA filed a petition for certiorari, prohibition and
injunction with prayer for restraining order with the Supreme Court, docketed as G.R.
No. 107542, seeking to nullify the aforesaid order dated October 16, 1992 issued by
the Regional Trial Court, Branch 127 of Caloocan City denying its motion to dismiss.
The Court, acting on the petition, issued a Resolution 12 on November 10, 1992
referring the case to the Court of Appeals for proper disposition and at the same time,
without giving due course to the petition, required the respondents to comment on the
petition and file the same with the Court of Appeals within ten (10) days from notice.
In the meantime, the Court issued a temporary restraining order, effective immediately
and continuing until further orders from it, ordering the respondents: (1) Judge Manuel
Jn. Serapio, Presiding Judge, Regional Trial Court, Branch 127, Caloocan City to
cease and desist from exercising jurisdiction over the case for declaration of nullity of
the cease and desist order issued by the Laguna Lake Development Authority
(LLDA); and (2) City Mayor of Caloocan and/or the City Government of Caloocan to
cease and desist from dumping its garbage at the Tala Estate, Barangay Camarin,
Caloocan City.
Respondents City Government of Caloocan and Mayor Macario A. Asistio, Jr. filed on
November 12, 1992 a motion for reconsideration and/or to quash/recall the temporary
restraining order and an urgent motion for reconsideration alleging that ". . . in view of
the calamitous situation that would arise if the respondent city government fails to
collect 350 tons of garbage daily for lack of a dumpsite (i)t is therefore, imperative that
the issue be resolved with dispatch or with sufficient leeway to allow the respondents
to find alternative solutions to this garbage problem."
On November 17, 1992, the Court issued a Resolution 13 directing the Court of
Appeals to immediately set the case for hearing for the purpose of determining
whether or not the temporary restraining order issued by the Court should be lifted
and what conditions, if any, may be required if it is to be so lifted or whether the
restraining order should be maintained or converted into a preliminary injunction.
The Court of Appeals set the case for hearing on November 27, 1992, at 10:00 in the
morning at the Hearing Room, 3rd Floor, New Building, Court of Appeals. 14 After the
oral argument, a conference was set on December 8, 1992 at 10:00 o'clock in the
morning where the Mayor of Caloocan City, the General Manager of LLDA, the
Secretary of DENR or his duly authorized representative and the Secretary of DILG or
his duly authorized representative were required to appear.
It was agreed at the conference that the LLDA had until December 15, 1992 to finish
its study and review of respondent's technical plan with respect to the dumping of its
garbage and in the event of a rejection of respondent's technical plan or a failure of
settlement, the parties will submit within 10 days from notice their respective
memoranda on the merits of the case, after which the petition shall be deemed
submitted for resolution. 15 Notwithstanding such efforts, the parties failed to settle
the dispute.
On April 30, 1993, the Court of Appeals promulgated its decision holding that: (1) the
Regional Trial Court has no jurisdiction on appeal to try, hear and decide the action
for annulment of LLDA's cease and desist order, including the issuance of a
temporary restraining order and preliminary injunction in relation thereto, since appeal
therefrom is within the exclusive and appellate jurisdiction of the Court of Appeals
under Section 9, par. (3), of Batas Pambansa Blg. 129; and (2) the Laguna Lake
Development Authority has no power and authority to issue a cease and desist order
under its enabling law, Republic Act No. 4850, as amended by P.D. No. 813 and
Executive Order No. 927, series of 1983.
The Court of Appeals thus dismissed Civil Case No. 15598 and the preliminary
injunction issued in the said case was set aside; the cease and desist order of LLDA
was likewise set aside and the temporary restraining order enjoining the City Mayor of
Caloocan and/or the City Government of Caloocan to cease and desist from dumping
its garbage at the Tala Estate, Barangay Camarin, Caloocan City was lifted, subject,
however, to the condition that any future dumping of garbage in said area, shall be in
conformity with the procedure and protective works contained in the proposal
attached to the records of this case and found on pages 152-160 of the Rollo, which
was thereby adopted by reference and made an integral part of the decision, until the
corresponding restraining and/or injunctive relief is granted by the proper Court upon
LLDA's institution of the necessary legal proceedings.
Hence, the Laguna Lake Development Authority filed the instant petition for review on
certiorari, now docketed as G.R. No. 110120, with prayer that the temporary
restraining order lifted by the Court of Appeals be re-issued until after final
determination by this Court of the issue on the proper interpretation of the powers and
authority of the LLDA under its enabling law.
On July 19, 1993, the Court issued a temporary restraining order 16 enjoining the City
Mayor of Caloocan and/or the City Government of Caloocan to cease and desist from
dumping its garbage at the Tala Estate, Barangay Camarin, Caloocan City, effective
as of this date and continuing until otherwise ordered by the Court.
It is significant to note that while both parties in this case agree on the need to protect
the environment and to maintain the ecological balance of the surrounding areas of
the Camarin open dumpsite, the question as to which agency can lawfully exercise
jurisdiction over the matter remains highly open to question.
The City Government of Caloocan claims that it is within its power, as a local
government unit, pursuant to the general welfare provision of the Local Government
Code, 17 to determine the effects of the operation of the dumpsite on the ecological
balance and to see that such balance is maintained. On the basis of said contention,
it questioned, from the inception of the dispute before the Regional Trial Court of
Caloocan City, the power and authority of the LLDA to issue a cease and desist order
enjoining the dumping of garbage in the Barangay Camarin over which the City
Government of Caloocan has territorial jurisdiction.
The Court of Appeals sustained the position of the City of Caloocan on the theory that
Section 7 of Presidential Decree No. 984, otherwise known as the Pollution Control
law, authorizing the defunct National Pollution Control Commission to issue an ex-
parte cease and desist order was not incorporated in Presidential Decree No. 813 nor
in Executive Order No. 927, series of 1983. The Court of Appeals ruled that under
Section 4, par. (d), of Republic Act No. 4850, as amended, the LLDA is instead
required "to institute the necessary legal proceeding against any person who shall
commence to implement or continue implementation of any project, plan or program
within the Laguna de Bay region without previous clearance from the Authority."
The LLDA now assails, in this partition for review, the abovementioned ruling of the
Court of Appeals, contending that, as an administrative agency which was granted
regulatory and adjudicatory powers and functions by Republic Act No. 4850 and its
amendatory laws, Presidential Decree No. 813 and Executive Order No. 927, series
of 1983, it is invested with the power and authority to issue a cease and desist order
pursuant to Section 4 par. (c), (d), (e), (f) and (g) of Executive Order No. 927 series of
1983 which provides, thus:
"SECTION 4. Additional Powers and Functions. The Authority shall have the following
powers and functions:
(c) Issue orders or decisions to compel compliance with the provisions of this
Executive Order and its implementing rules and regulations only after proper notice
and hearing.
(d) Make, alter or modify orders requiring the discontinuance of pollution specifying
the conditions and the time within which such discontinuance must be accomplished.
(e) Issue, renew, or deny permits, under such conditions as it may determine to be
reasonable, for the prevention and abatement of pollution, for the discharge of
sewage, industrial waste, or for the installation or operation of sewage works and
industrial disposal system or parts thereof. . . .
(f) After due notice and hearing, the Authority may also revoke, suspend or modify
any permit issued under this Order whenever the same is necessary to prevent or
abate pollution.
(g) Deputize in writing or request assistance of appropriate government agencies or
instrumentalities for the purpose of enforcing this Executive Order and its
implementing rules and regulations and the orders and decisions of the Authority."
The LLDA claims that the appellate court deliberately suppressed and totally
disregarded the above provisions of Executive Order No. 927, series of 1983, which
granted administrative quasi-judicial functions to LLDA on pollution abatement cases.
In light of the relevant environmental protection laws cited which are applicable in this
case, and the corresponding overlapping jurisdiction of government agencies
implementing these laws, the resolution of the issue of whether or not the LLDA has
the authority and power to issue an order which, in its nature and effect was
injunctive, necessarily requires a determination of the threshold question: Does the
Laguna Lake Development Authority, under its Charter and its amendatory laws, have
the authority to entertain the complaint against the dumping of garbage in the open
dumpsite in Barangay Camarin authorized by the City Government of Caloocan which
is allegedly endangering the health, safety, and welfare of the residents therein and
the sanitation and quality of the water in the area brought about by exposure to
pollution caused by such open garbage dumpsite?
The matter of determining whether there is such pollution of the environment that
requires control, if not prohibition, of the operation of a business establishment is
essentially addressed to the Environmental Management Bureau (EMB) of the DENR
which, by virtue of Section 16 of Executive Order No. 192, series of 1987, 18 has
assumed the powers and functions of the defunct National Pollution Control
Commission created under Republic Act No. 3931. Under said Executive Order, a
Pollution Adjudication Board (PAB) under the Office of the DENR Secretary now
assumes the powers and functions of the National Pollution Control Commission with
respect to adjudication of pollution cases. 19
As a general rule, the adjudication of pollution cases generally pertains to the
Pollution Adjudication Board (PAB), except in cases where the special law provides
for another forum. It must be recognized in this regard that the LLDA, as a specialized
administrative agency, is specifically mandated under Republic Act No. 4850 and its
amendatory laws to carry out and make effective the declared national policy 20 of
promoting and accelerating the development and balanced growth of the Laguna
Lake area and the surrounding provinces of Rizal and Laguna and the cities of San
Pablo, Manila, Pasay, Quezon and Caloocan 21 with due regard and adequate
provisions for environmental management and control, preservation of the quality of
human life and ecological systems, and the prevention of undue ecological
disturbances, deterioration and pollution. Under such a broad grant of power and
authority, the LLDA, by virtue of its special charter, obviously has the responsibility to
protect the inhabitants of the Laguna Lake region from the deleterious effects of
pollutants emanating from the discharge of wastes from the surrounding areas. In
carrying out the aforementioned declared policy, the LLDA is mandated, among
others, to pass upon and approve or disapprove all plans, programs, and projects
proposed by local government offices/agencies within the region, public corporations,
and private persons or enterprises where such plans, programs and/or projects are
related to those of the LLDA for the development of the region. 22
In the instant case, when the complainant Task Force Camarin Dumpsite of Our Lady
of Lourdes Parish, Barangay Camarin, Caloocan City, filed its letter-complaint before
the LLDA, the latter's jurisdiction under its charter was validly invoked by complainant
on the basis of its allegation that the open dumpsite project of the City Government of
Caloocan in Barangay Camarin was undertaken without a clearance from the LLDA,
as required under Section 4, par. (d), of Republic Act. No. 4850, as amended by P.D.
No. 813 and Executive Order No. 927. While there is also an allegation that the said
project was without an Environmental Compliance Certificate from the Environmental
Management Bureau (EMB) of the DENR, the primary jurisdiction of the LLDA over
this case was recognized by the Environmental Management Bureau of the DENR
when the latter acted as intermediary at the meeting among the representatives of the
City Government of Caloocan, Task Force Camarin Dumpsite and LLDA sometime in
July 1992 to discuss the possibility of re-opening the open dumpsite.
Having thus resolved the threshold question, the inquiry then narrows down to the
following issue: Does the LLDA have the power and authority to issue a "cease and
desist" order under Republic Act No. 4850 and its amendatory laws, on the basis of
the facts presented in this case, enjoining the dumping of garbage in Tala Estate,
Barangay Camarin, Caloocan City.
The irresistible answer is in the affirmative.
The cease and desist order issued by the LLDA requiring the City Government of
Caloocan to stop dumping its garbage in the Camarin open dumpsite found by the
LLDA to have been done in violation of Republic Act No. 4850, as amended, and
other relevant environment laws, 23 cannot be stamped as an unauthorized exercise
by the LLDA of injunctive powers. By its express terms, Republic Act No. 4850, as
amended by P.D. No. 813 and Executive Order No. 927, series of 1983, authorizes
the LLDA to "make, alter or modify orders requiring the discontinuance or pollution."
24 (Italics for emphasis) Section 4, par. (d) explicitly authorizes the LLDA to
makewhatever order may be necessary in the exercise of its jurisdiction.
To be sure, the LLDA was not expressly conferred the power "to issue an ex-parte
cease and desist order" in a language, as suggested by the City Government of
Caloocan, similar to the express grant to the defunct National Pollution Control
Commission under Section 7 of P.D. No. 984 which, admittedly was not reproduced in
P.D. No. 813 and E.O. No. 927, series of 1983. However, it would be a mistake to
draw therefrom the conclusion that there is a denial of the power to issue the order in
question when the power "to make, alter or modify orders requiring the
discontinuance of pollution" is expressly and clearly bestowed upon the LLDA by
Executive Order No. 927, series of 1983.
Assuming arguendo that the authority to issue a "cease and desist order" were not
expressly conferred by law, there is jurisprudence enough to the effect that the rule
granting such authority need not necessarily be express. 25 While it is a fundamental
rule that an administrative agency has only such powers as are expressly granted to it
by law, it is likewise a settled rule that an administrative agency has also such powers
as are necessarily implied in the exercise of its express powers. 26 In the exercise,
therefore, of its express powers under its charter as a regulatory and quasi-judicial
body with respect to pollution cases in the Laguna Lake region, the authority of the
LLDA to issue a "cease and desist order" is, perforce, implied. Otherwise, it may well
be reduced to a "toothless" paper agency.
In this connection, it must be noted that in Pollution Adjudication Board v. Court of
Appeals, et al., 27 the Court ruled that the Pollution Adjudication Board (PAB) has the
power to issue an ex-parte cease and desist order when there is prima facie evidence
of an establishment exceeding the allowable standards set by the anti-pollution laws
of the country. The ponente, Associate Justice Florentino P. Feliciano, declared:
"Ex parte cease and desist orders are permitted by law and regulations in situations
like that here presented precisely because stopping the continuous discharge of
pollutive and untreated effluents into the rivers and other inland waters of the
Philippines cannot be made to wait until protracted litigation over the ultimate
correctness or propriety of such orders has run its full course, including multiple and
sequential appeals such as those which Solar has taken, which of course may take
several years. The relevant pollution control statute and implementing regulations
were enacted and promulgated in the exercise of that pervasive, sovereign power to
protect the safety, health, and general welfare and comfort of the public, as well as
the protection of plant and animal life, commonly designated as the police power. It is
a constitutional commonplace that the ordinary requirements of procedural due
process yield to the necessities of protecting vital public interests like those here
involved, through the exercise of police power. . . .
The immediate response to the demands of "the necessities of protecting vital public
interests" gives vitality to the statement on ecology embodied in the Declaration of
Principles and State Policies or the 1987 Constitution. Article II, Section 16 which
provides:
"The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature."
As a constitutionally guaranteed right of every person, it carries the correlative duty of
non-impairment. This is but in consonance with the declared policy of the state "to
protect and promote the right to health of the people and instill health consciousness
among them." 28 It is to be borne in mind that the Philippines is party to the Universal
Declaration of Human Rights and the Alma Conference Declaration of 1978 which
recognize health as a fundamental human right. 29
The issuance, therefore, of the cease and desist order by the LLDA, as a practical
matter of procedure under the circumstances of the case, is a proper exercise of its
power and authority under its charter and its amendatory laws. Had the cease and
desist order issued by the LLDA been complied with by the City Government of
Caloocan as it did in the first instance, no further legal steps would have been
necessary. cdlex
The charter of LLDA, Republic Act No. 4850, as amended, instead of conferring upon
the LLDA the means of directly enforcing such orders, has provided under its Section
4 (d) the power to institute "necessary legal proceeding against any person who shall
commence to implement or continue implementation of any project, plan or program
within the Laguna de Bay region without previous clearance from the LLDA."
Clearly, said provision was designed to invest the LLDA with sufficiently broad powers
in the regulation of all projects initiated in the Laguna Lake region, whether by the
government or the private sector, insofar as the implementation of these projects is
concerned. It was meant to deal with cases which might possibly arise where
decisions or orders issued pursuant to the exercise of such broad powers may not be
obeyed, resulting in the thwarting of its laudable objective. To meet such
contingencies, then the writs of mandamus and injunction which are beyond the
power of the LLDA to issue, may be sought from the proper courts. LibLex
Insofar as the implementation of relevant anti-pollution laws in the Laguna Lake
region and its surrounding provinces, cities and towns are concerned, the Court will
not dwell further on the related issues raised which are more appropriately addressed
to an administrative agency with the special knowledge and expertise of the LLDA.
WHEREFORE, the petition is GRANTED. The temporary restraining order issued by
the Court on July 19, 1993 enjoining the City Mayor of Caloocan and/or the City
Government of Caloocan from dumping their garbage at the Tala Estate, Barangay
Camarin, Caloocan City is hereby made permanent.
SO ORDERED.
LLDA VS CA (1995)
HERMOSISIMA, JR., J p:
It is difficult for a man, scavenging on the garbage dump created by affluence and
profligate consumption and extravagance of the rich or fishing in the murky waters of
the Pasig River and the Laguna Lake or making a clearing in the forest so that he can
produce food for his family, to understand why protecting birds, fish, and trees is more
important than protecting him and keeping his family alive.
How do we strike a balance between environmental protection, on the one hand, and
the individual personal interests of people, on the other?
Towards environmental protection and ecology, navigational safety, and sustainable
development, Republic Act No. 4850 created the "Laguna Lake Development
Authority." This Government Agency is supposed to carry out and effectuate the
aforesaid declared policy, so as to accelerate the development and balanced growth
of the Laguna Lake area and the surrounding provinces, cities and towns, in the act
clearly named, within the context of the national and regional plans and policies for
social and economic development.
Presidential Decree No. 813 of former President Ferdinand E. Marcos amended
certain sections of Republic Act No. 4850 because of the concern for the rapid
expansion of Metropolitan Manila, the suburbs and the lakeshore towns of Laguna de
Bay, combined with current and prospective uses of the lake for municipal-industrial
water supply, irrigation, fisheries, and the like. Concern on the part of the Government
and the general public over: the environment impact of development on the water
quality and ecology of the lake and its related river systems; the inflow of polluted
water from the Pasig River, industrial, domestic and agricultural wastes from
developed areas around the lake; the increasing urbanization which induced the
deterioration of the lake, since water quality studies have shown that the lake will
deteriorate further if steps are not taken to check the same; and the floods in
Metropolitan Manila area and the lakeshore towns which will influence the hydraulic
system of Laguna de Bay, since any scheme of controlling the floods will necessarily
involve the lake and its river systems, likewise gave impetus to the creation of the
Authority.
Section 1 of Republic Act No. 4850 was amended to read as follows:
"SECTION 1. Declaration of Policy. It is hereby declared to be the national policy to
promote, and accelerate the development and balanced growth of the Laguna Lake
area and the surrounding provinces, cities and towns hereinafter referred to as the
region, within the context of the national and regional plans and policies for social and
economic development and to carry out the development of the Laguna Lake region
with due regard and adequate provisions for environmental management and control,
preservation of the quality of human life and ecological systems, and the prevention
of undue ecological disturbances, deterioration and pollution." 1
Special powers of the Authority, pertinent to the issues in this case, include:
"SEC. 3. Section 4 of the same Act is hereby further amended by adding thereto
seven new paragraphs to be known as paragraphs (j), (k), (l), (m), (n), (o), and (p)
which shall read as follows:
'(j) The provisions of existing laws to the contrary notwithstanding, to engage in fish
production and other aqua-culture projects in Laguna de Bay and other bodies of
water within its jurisdiction and in pursuance thereof to conduct studies and make
experiments, whenever necessary, with the collaboration and assistance of the
Bureau of Fisheries and Aquatic Resources, with the end in view of improving present
techniques and practices. Provided, that until modified, altered or amended by the
procedure provided in the following sub-paragraph, the present laws, rules and
permits or authorizations remain in force;
(k) For the purpose of effectively regulating and monitoring activities in Laguna de
Bay, the Authority shall have exclusive jurisdiction to issue new permit for the use of
the lake waters for any projects or activities in or affecting the said lake including
navigation, construction, and operation of fishpens, fish enclosures, fish corrals and
the like, and to impose necessary safeguards for lake quality control and
management and to collect necessary fees for said activities and projects: Provided,
That the fees collected for fisheries may be shared between the Authority and other
government agencies and political sub-divisions in such proportion as may be
determined by the President of the Philippines upon recommendation of the
Authority's Board: Provided, further, That the Authority's Board may determine new
areas of fishery development or activities which it may place under the supervision of
the Bureau of Fisheries and Aquatic Resources taking into account the overall
development plans and programs for Laguna de Bay and related bodies of water:
Provided, finally, That the Authority shall subject to the approval of the President of
the Philippines promulgate such rules and regulations which shall govern fisheries
development activities in Laguna de Bay which shall take into consideration among
others the following: socio-economic amelioration of bonafide resident fishermen
whether individually or collectively in the form of cooperatives, lakeshore town
development, a master plan for fishpen construction and operation, communal fishing
ground for lake shore town residents, and preference to lake shore town residents in
hiring laborers for fishery projects;
(l) To require the cities and municipalities embraced within the region to pass
appropriate zoning ordinances and other regulatory measures necessary to carry out
the objectives of the Authority and enforce the same with the assistance of the
Authority;
(m) The provisions of existing laws to the contrary notwithstanding, to exercise water
rights over public waters within the Laguna de Bay region whenever necessary to
carry out the Authority's projects;
(n) To act in coordination with existing governmental agencies in establishing water
quality standards for industrial, agricultural and municipal waste discharges into the
lake and to cooperate with said existing agencies of the government of the Philippines
in enforcing such standards, or to separately pursue enforcement and penalty actions
as provided for in Section 4 (d) and Section 39-A of this Act: Provided, That in case of
conflict on the appropriate water quality standard to be enforced such conflict shall be
resolved thru the NEDA Board;'" 2
To more effectively perform the role of the Authority under Republic Act No. 4850, as
though Presidential Decree No. 813 were not thought to be completely effective, the
Chief Executive, feeling that the land and waters of the Laguna Lake Region are
limited natural resources requiring judicious management to their optimal utilization to
insure renewability and to preserve the ecological balance, the competing options for
the use of such resources and conflicting jurisdictions over such uses having created
undue constraints on the institutional capabilities of the Authority in the light of the
limited powers vested in it by its charter, Executive Order No. 927 further defined and
enlarged the functions and powers of the Authority and named and enumerated the
towns, cities and provinces encompassed by the term "Laguna de Bay Region".
Also, pertinent to the issues in this case are the following provisions of Executive
Order No. 927 which include in particular the sharing of fees:
"SEC. 2. Water Rights Over Laguna de Bay and Other Bodies of Water within the
Lake Region: To effectively regulate and monitor activities in the Laguna de Bay
region, the Authority shall have exclusive jurisdiction to issue permit for the use of all
surface water for any projects or activities in or affecting the said region including
navigation, construction, and operation of fishpens, fish enclosures, fish corrals and
the like.
For the purpose of this Executive Order, the term 'Laguna de Bay Region' shall refer
to the Provinces of Rizal and Laguna; the Cities of San Pablo, Pasay, Caloocan,
Quezon, Manila and Tagaytay; the towns of Tanauan, Sto. Tomas and Malvar in
Batangas Province; the towns of Silang and Carmona in Cavite Province; the town of
Lucban in Quezon Province; and the towns of Marikina, Pasig, Taguig, Muntinlupa,
and Pateros in Metro Manila.
SEC. 3. Collection of Fees. The Authority is hereby empowered to collect fees for
the use of the lake water and its tributaries for all beneficial purposes including but not
limited to fisheries, recreation, municipal, industrial, agricultural, navigation, irrigation,
and waste disposal purpose; Provided, that the rates of the fees to be collected, and
the sharing with other government agencies and political subdivisions, if necessary,
shall be subject to the approval of the President of the Philippines upon
recommendation of the Authority's Board, except fishpen fee, which will be shared in
the following manner: 20 percent of the fee shall go to the lakeshore local
governments, 5 percent shall go to the Project Development Fund which shall be
administered by a Council and the remaining 75 percent shall constitute the share of
LLDA. However, after the implementation within the three-year period of the Laguna
Lake Fishery Zoning and Management Plan the sharing will be modified as follows:
35 percent of the fishpen fee goes to the lakeshore local governments, 5 percent
goes to the Project Development Fund and the remaining 60 percent shall be retained
by LLDA; Provided, however, that the share of LLDA shall form part of its corporate
funds and shall not be remitted to the National Treasury as an exception to the
provisions of Presidential Decree No. 1234." (Italics for emphasis)
It is important to note that Section 29 of Presidential Decree No. 813 defined the term
"Laguna Lake" in this manner:
"SECTION 41. Definition of Terms.
(11) Laguna Lake or Lake. Whenever Laguna Lake or lake is used in this Act, the
same shall refer to Laguna de Bay which is that area covered by the lake water when
it is at the average level of elevation 12.50 meters, as referred to a datum 10.00
meters below mean lower low water (M.L.L.W.). Lands located at and below such
elevation are public lands which form part of the bed of said lake."
Then came Republic Act No. 7160, the Local Government Code of 1991. The
municipalities in the Laguna Lake Region interpreted the provisions of this law to
mean that the newly passed law gave municipal governments the exclusive
jurisdiction to issue fishing privileges within their municipal waters because R.A. 7160
provides:
"Sec. 149. Fishery Rentals; Fees and Charges. (a) Municipalities shall have the
exclusive authority to grant fishery privileges in the municipal waters and impose
rental fees or charges therefor in accordance with the provisions of this Section. LLjur
(b) The Sangguniang Bayan may:
(1) Grant fishing privileges to erect fish corrals, oyster, mussel or other aquatic beds
or bangus fry areas within a definite zone of the municipal waters, as determined by
it; . . .
(2) Grant privilege to gather, take or catch bangus fry, prawn fry or kawag-kawag or
fry of other species and fish from the municipal waters by nets, traps or other fishing
gears to marginal fishermen free from any rental fee, charges or any other imposition
whatsoever.
xxx xxx xxx
Sec. 447. Power, Duties, Functions and Compensation. . . . .
(2) . . .
(XI) Subject to the provisions of Book II of this Code, grant exclusive privileges of
constructing fish corrals or fishpens, or the taking or catching of bangus fry, prawn fry
or kawag-kawag or fry of any species or fish within the municipal waters.
Municipal governments thereupon assumed the authority to issue fishing privileges
and fishpen permits. Big fishpen operators took advantage of the occasion to
establish fishpens and fishcages to the consternation of the Authority. Unregulated
fishpens and fishcages, as of July, 1995, occupied almost one-third of the entire lake
water surface area, increasing the occupation drastically from 7,000 hectares in 1990
to almost 21,000 hectares in 1995. The Mayor's permit to construct fishpens and
fishcages were all undertaken in violation of the policies adopted by the Authority on
fishpen zoning and the Laguna Lake carrying capacity.
To be sure, the implementation by the lakeshore municipalities of separate
independent policies in the operation of fishpens and fishcages within their claimed
territorial municipal waters in the lake and their indiscriminate grant of fishpens
permits have already saturated the lake area with fishpens, thereby aggravating the
current environmental problems and ecological stress of Laguna Lake.
In view of the foregoing circumstances, the Authority served notice to the general
public that:
"In compliance with the instructions of His Excellency PRESIDENT FIDEL V. RAMOS
given on June 23, 1993 at Pila, Laguna, pursuant to Republic Act 4850 as amended
by Presidential Decree 813 and Executive Order 927 series of 1983 and in line with
the policies and programs of the Presidential Task Force on Illegal Fishpens and
Illegal Fishing, the general public is hereby notified that:
1. All fishpens, fishcages and other aqua-culture structures in the Laguna de Bay
Region, which were not registered or to which no application for registration and/or
permit has been filed with Laguna Lake Development Authority as of March 31, 1993
are hereby declared outrightly as illegal.
2. All fishpens, fishcages and other aqua-culture structures so declared as illegal shall
be subject to demolition which shall be undertaken by the Presidential Task Force for
Illegal Fishpen and Illegal Fishing.
3. Owners of fishpens, fishcages and other aqua-culture structures declared as illegal
shall, without prejudice to demolition of their structures be criminally charged in
accordance with Section 39-A of Republic Act 4850 as amended by P.D. 813 for
violation of the same laws. Violations of these laws carries a penalty of imprisonment
of not exceeding 3 years or a fine not exceeding Five Thousand Pesos or both at the
discretion of the court.
All operators of fishpens, fishcages and other aqua-culture structures declared as
illegal in accordance with the foregoing Notice shall have one (1) month on or before
27 October 1993 to show cause before the LLDA why their said fishpens, fishcages
and other aqua-culture structures should not be demolished/dismantled." cdlex
One month, thereafter, the Authority sent notices to the concerned owners of the
illegally constructed fishpens, fishcages and other aqua-culture structures advising
them to dismantle their respective structures within 10 days from receipt thereof,
otherwise, demolition shall be effected.
Reacting thereto, the affected fishpen owners filed injunction cases against the
Authority before various regional trial courts, to wit: (a) Civil Case No. 759-B, for
Prohibition, Injunction and Damages, Regional Trial Court, Branch 70, Binangonan,
Rizal, filed by Fleet Development, Inc. and Carlito Arroyo; (b) Civil Case No. 64049,
for Injunction, Regional Trial Court, Branch 162, Pasig, filed by IRMA Fishing and
Trading Corp., ARTM Fishing Corp., BDR Corp., MIRT Corp. and TRIM Corp.; (c) Civil
Case No. 566, for Declaratory Relief and Injunction, Regional Trial Court, Branch 163,
Pasig, filed by Manila Marine Life Business Resources, Inc. and Tobias Reynaldo M.
Tianco; (d) Civil Case No. 556-M, for Prohibition, Injunction and Damages, Regional
Trial Court, Branch 78, Morong, Rizal, filed by AGP Fishing Ventures, Inc.; (e) Civil
Case No. 522-M, for Prohibition, Injunction and Damages, Regional Trial Court,
Branch 78, Morong, Rizal, filed by Blue Lagoon and Alcris Chicken Growers, Inc.; (f)
Civil Case No. 554, for Certiorari and Prohibition, Regional Trial Court, Branch 79,
Morong, Rizal, filed by Greenfields Ventures Industrial Corp. and R.J. Orion
Development Corp.; and (g) Civil Case No. 64124, for Injunction, Regional Trial Court,
Branch 15, Pasig, filed by SEA-MAR Trading Co., Inc. and Eastern Lagoon Fishing
Corp. and Minamar Fishing Corporation.
The Authority filed motions to dismiss the cases against it on jurisdictional grounds.
The motions to dismiss were invariably denied. Meanwhile, temporary restraining
order/writs of preliminary mandatory injunction were issued in Civil Cases Nos.
64124, 759 and 566 enjoining the Authority from demolishing the fishpens and similar
structures in question.
Hence, the herein petition for certiorari, prohibition and injunction, G.R Nos.
120865-71, were filed by the Authority with this court. Impleaded as parties-
respondents are concerned regional trial courts and respective private parties, and
the municipalities and/or respective Mayors of Binangonan, Taguig and Jala-jala, who
issued permits for the construction and operation of fishpens in Laguna de Bay. The
Authority sought the following reliefs, viz.:
"(A) Nullification of the temporary restraining order/writs of preliminary injunction
issued in Civil Cases Nos. 64125, 759 and 566;
(B) Permanent prohibition against the regional trial courts from exercising jurisdiction
over cases involving the Authority which is a co-equal body;
(C) Judicial pronouncement that R.A. 7160 (Local Government Code of 1991) did not
repeal, alter or modify the provisions of R.A. 4850, as amended, empowering the
Authority to issue permits for fishpens, fishcages and other aqua-culture structures in
Laguna de Bay and that, the Authority the government agency vested with exclusive
authority to issue said permits."
By this Court's resolution of May 2, 1994, the Authority's consolidated petitions were
referred to the Court of Appeals.
In a Decision, dated June 29, 1995, the Court of Appeals dismissed the Authority's
consolidated petitions, the Court of Appeals holding that: (A) LLDA is not among
those quasi-judicial agencies of government whose decision or order are appealable
only to the Court of Appeals; (B) the LLDA charter does vest LLDA with quasi-judicial
functions insofar as fishpens are concerned; (C) the provisions of the LLDA charter
insofar as fishing privileges in Laguna de Bay are concerned had been repealed by
the Local Government Code of 1991; (D) in view of the aforesaid repeal, the power to
grant permits devolved to respective local government units concerned.
Not satisfied with the Court of Appeals decision, the Authority has returned to this
Court charging the following errors:
"1. THE HONORABLE COURT OF APPEALS PROBABLY COMMITTED AN ERROR
WHEN IT RULED THAT THE LAGUNA LAKE DEVELOPMENT AUTHORITY IS NOT
A QUASI-JUDICIAL AGENCY.
2. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR
WHEN IT RULED THAT R.A. 4850 AS AMENDED BY P.D. 813 AND E.O. 927
SERIES OF 1983 HAS BEEN REPEALED BY REPUBLIC ACT 7160. THE SAID
RULING IS CONTRARY TO ESTABLISHED PRINCIPLES AND JURISPRUDENCE
OF STATUTORY CONSTRUCTION.
3. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR
WHEN IT RULED THAT THE POWER TO ISSUE FISHPEN PERMITS IN LAGUNA
DE BAY HAS BEEN DEVOLVED TO CONCERNED (LAKESHORE) LOCAL
GOVERNMENT UNITS."
We take a simplistic view of the controversy. Actually, the main and only issue posed
is: Which agency of the Government the Laguna Lake Development Authority or
the towns and municipalities comprising the region should exercise jurisdiction
over the Laguna Lake and its environs insofar as the issuance of permits for fishery
privileges is concerned?
Section 4 (k) of the charter of the Laguna Lake Development Authority, Republic Act
No. 4850, the provisions of Presidential Decree No. 813, and Section 2 of Executive
Order No. 927, cited above, specifically provide that the Laguna Lake Development
Authority shall have exclusive jurisdiction to issue permits for the use of all surface
water for any projects or activities in or affecting the said region, including navigation,
construction, and operation of fishpens, fish enclosures, fish corrals and the like. On
the other hand, Republic Act No. 7160, the Local Government Code of 1991, has
granted to the municipalities the exclusive authority to grant fishery privileges in
municipal waters. The Sangguniang Bayan may grant fishery privileges to erect fish
corrals, oyster, mussels or other aquatic beds or bangus fry area within a definite
zone of the municipal waters.
We hold that the provisions of Republic Act No. 7160 do not necessarily repeal the
aforementioned laws creating the Laguna Lake Development Authority and granting
the latter water rights authority over Laguna de Bay and the lake region.
The Local Government Code of 1991 does not contain any express provision which
categorically expressly repeal the charter of the Authority. It has to be conceded that
there was no intent on the part of the legislature to repeal Republic Act No. 4850 and
its amendments. The repeal of laws should be made clear and expressed.
It has to be conceded that the charter of the Laguna Lake Development Authority
constitutes a special law. Republic Act No. 7160, the Local Government Code of
1991, is a general law. It is basic in statutory construction that the enactment of a later
legislation which is a general law cannot be construed to have repealed a special law.
It is a well-settled rule in this jurisdiction that "a special statute, provided for a
particular case or class of cases, is not repealed by a subsequent statute, general in
its terms, provisions and application, unless the intent to repeal or alter is manifest,
although the terms of the general law are broad enough to include the cases
embraced in the special law." 3
Where there is a conflict between a general law and a special statute, the special
statute should prevail since it evinces the legislative intent more clearly than the
general statute. The special law is to be taken as an exception to the general law in
the absence of special circumstances forcing a contrary conclusion. This is because
implied repeals are not favored and as much as possible, effect must be given to all
enactments of the legislature. A special law cannot be repealed, amended or altered
by a subsequent general law by mere implication. 4
Thus, it has to be concluded that the charter of the Authority should prevail over the
Local Government Code of 1991.
Considering the reasons behind the establishment of the Authority, which are
environmental protection, navigational safety, and sustainable development, there is
every indication that the legislative intent is for the Authority to proceed with its
mission.
We are on all fours with the manifestation of petitioner Laguna Lake Development
Authority that "Laguna de Bay, like any other single body of water has its own unique
natural ecosystem. The 900 km2 lake surface water, the eight (8) major river
tributaries and several other smaller rivers that drain into the lake, the 2,920 km2
basin or watershed transcending the boundaries of Laguna and Rizal provinces,
constitute one integrated delicate natural ecosystem that needs to be protected with
uniform set of policies; if we are to be serious in our aims of attaining sustainable
development. This is an exhaustible natural resource a very limited one which
requires judicious management and optimal utilization to ensure renewability and
preserve its ecological integrity and balance."
"Managing the lake resources would mean the implementation of a national policy
geared towards the protection, conservation, balanced growth and sustainable
development of the region with due regard to the inter-generational use of its
resources by the inhabitants in this part of the earth. The authors of Republic Act
4850 have foreseen this need when they passed this LLDA law the special law
designed to govern the management of our Laguna de Bay lake resources."
"Laguna de Bay therefore cannot be subjected to fragmented concepts of
management policies where lakeshore local government units exercise exclusive
dominion over specific portions of the lake water. The garbage thrown or sewage
discharged into the lake, abstraction of water therefrom or construction of fishpens by
enclosing its certain area, affect not only that specific portion but the entire 900 km2
of lake water. The implementation of a cohesive and integrated lake water resource
management policy, therefore, is necessary to conserve, protect and sustainably
develop Laguna de Bay." 5
The power of the local government units to issue fishing privileges was clearly
granted for revenue purposes. This is evident from the fact that Section 149 of the
New Local Government Code empowering local governments to issue fishing permits
is embodied in Chapter 2, Book II, of Republic Act No. 7160 under the heading,
"Specific Provisions On The Taxing And Other Revenue Raising Power of Local
Government Units."
On the other hand, the power of the Authority to grant permits for fishpens, fishcages
and other aqua-culture structures is for the purpose of effectively regulating and
monitoring activities in the Laguna de Bay region (Section 2, Executive Order No.
927) and for lake quality control and management. 6 It does partake of the nature of
police power which is the most pervasive, the least limitable and the most demanding
of all State powers including the power of taxation. Accordingly, the charter of the
Authority which embodies a valid exercise of police power should prevail over the
Local Government Code of 1991 on matters affecting Laguna de Bay.
There should be no quarrel over permit fees for fishpens, fishcages and other aqua-
culture structures in the Laguna de Bay area. Section 3 of Executive Order No. 927
provides for the proper sharing of fees collected.
In respect to the question as to whether the Authority is a quasi-judicial agency or not,
it is our holding that, considering the provisions of Section 4 of Republic Act No. 4850
and Section 4 of Executive Order No. 927, series of 1983, and the ruling of this Court
in Laguna Lake Development Authority vs. Court of Appeals, 231 SCRA 304, 306,
which we quote:
"xxx xxx xxx
As a general rule, the adjudication of pollution cases generally pertains to the
Pollution Adjudication Board (PAB), except in cases where the special law provides
for another forum. It must be recognized in this regard that the LLDA, as a specialized
administrative agency, is specifically mandated under Republic Act No. 4850 and its
amendatory laws to carry out and make effective the declared national policy of
promoting and accelerating the development and balanced growth of the Laguna
Lake area and the surrounding provinces of Rizal and Laguna and the cities of San
Pablo, Manila, Pasay, Quezon and Caloocan with due regard and adequate
provisions for environmental management and control, preservation of the quality of
human life and ecological systems, and the prevention of undue ecological
disturbances, deterioration and pollution. Under such a broad grant of power and
authority, the LLDA, by virtue of its special charter, obviously has the responsibility to
protect the inhabitants of the Laguna Lake region from the deleterious effects of
pollutants emanating from the discharge of wastes from the surrounding areas. In
carrying out the aforementioned declared policy, the LLDA is mandated, among
others, to pass upon and approve or disapprove all plans, programs, and projects
proposed by local government offices/agencies within the region, public corporations,
and private persons or enterprises where such plans, programs and/or projects are
related to those of the LLDA for the development of the region.
xxx xxx xxx
. . . . While it is a fundamental rule that an administrative agency has only such
powers as are expressly granted to it by law, it is likewise a settled rule that an
administrative agency has also such powers as are necessarily implied in the
exercise of its express powers. In the exercise, therefore, of its express powers under
its charter, as a regulatory and quasi-judicial body with respect to pollution cases in
the Laguna Lake region, the authority of the LLDA to issue a 'cease and desist order'
is, perforce, implied. Otherwise, it may well be reduced to a 'toothless' paper agency."
There is no question that the Authority has express powers as a regulatory and quasi-
judicial body in respect to pollution cases with authority to issue a "cease and desist
order" and on matters affecting the construction of illegal fishpens, fishcages and
other aqua-culture structures in Laguna de Bay. The Authority's pretense, however,
that it is co-equal to the Regional Trial Courts such that all actions against it may only
be instituted before the Court of Appeals cannot be sustained. On actions
necessitating the resolution of legal questions affecting the powers of the Authority as
provided for in its charter, the Regional Trial Courts have jurisdiction.
In view of the foregoing, this Court holds that Section 149 of Republic Act No. 7160,
otherwise known as the Local Government Code of 1991, has not repealed the
provisions of the charter of the Laguna Lake Development Authority, Republic Act No.
4850, as amended. Thus, the Authority has the exclusive jurisdiction to issue permits
for the enjoyment of fishery privileges in Laguna de Bay to the exclusion of
municipalities situated therein and the authority to exercise such powers as are by its
charter vested on it.
Removal from the Authority of the aforesaid licensing authority will render nugatory its
avowed purpose of protecting and developing the Laguna Lake Region. Otherwise
stated, the abrogation of this power would render useless its reason for being and will
in effect denigrate, if not abolish, the Laguna Lake Development Authority. This, the
Local Government Code of 1991 had never intended to do.
WHEREFORE, the petitions for prohibition, certiorari and injunction are hereby
granted, insofar as they relate to the authority of the Laguna Lake Development
Authority to grant fishing privileges within the Laguna Lake Region.
The restraining orders and/or writs of injunction issued by Judge Arturo Marave, RTC,
Branch 78, Morong, Rizal; Judge Herculano Tech, RTC, Branch 70, Binangonan,
Rizal; and Judge Aurelio Trampe, RTC, Branch 163, Pasig, Metro Manila, are hereby
declared null and void and ordered set aside for having been issued with grave abuse
of discretion.
The Municipal Mayors of the Laguna Lake Region are hereby prohibited from issuing
permits to construct and operate fishpens, fishcages and other aqua-culture
structures within the Laguna Lake Region, their previous issuances being declared
null and void. Thus, the fishing permits issued by Mayors Isidro B. Pacis, Municipality
of Binangonan; Ricardo D. Papa, Municipality of Taguig; and Walfredo M. de la Vega,
Municipality of Jala-jala, specifically, are likewise declared null and void and ordered
cancelled.
The fishpens, fishcages and other aqua-culture structures put up by operators by
virtue of permits issued by Municipal Mayors within the Laguna Lake Region,
specifically, permits issued to Fleet Development, Inc. and Carlito Arroyo; Manila
Marine Life Business Resources, Inc., represented by, Mr. Tobias Reynald M.
Tiangco; Greenfield Ventures Industrial Development Corporation and R.J. Orion
Development Corporation; IRMA Fishing And Trading Corporation, ARTM Fishing
Corporation, BDR Corporation, Mirt Corporation and Trim Corporation; Blue Lagoon
Fishing Corporation and ALCRIS Chicken Growers, Inc.; AGP Fish Ventures, Inc.,
represented by its President Alfonso Puyat; SEA MAR Trading Co., Inc., Eastern
Lagoon Fishing Corporation, and MINAMAR Fishing Corporation, are hereby
declared illegal structures subject to demolition by the Laguna Lake Development
Authority.
SO ORDERED.
GARCIA VS BOI
GUTIERREZ, JR., J p:
This is a petition to annul and set aside the decision of the Board of Investments
(BOI)/Department of Trade and Industry (DTI) approving the transfer of the site of the
proposed petrochemical plant from Bataan to Batangas and the shift of feedstock for
that plant from naphtha only to naphtha and/or liquefied petroleum gas (LPG).
This petition is a sequel to the petition in G.R. No. 88637 entitled "Congressman
Enrique T. Garcia v. the Board of Investments", September 7, 1989, where this Court
issued a decision, ordering the BOI as follows:
"WHEREFORE, the petition for certiorari is granted. The Board of Investments is
ordered: (1) to publish the amended application for registration of the Bataan
Petrochemical Corporation, (2) to allow the petitioner to have access to its records on
the original and amended applications for registration, as a petrochemical
manufacturer, of the respondent Bataan Petrochemical Corporation, excluding,
however, privileged papers containing its trade secrets and other business and
financial information, and (3) to set for hearing the petitioner's opposition to the
amended application in order that he may present at such hearing all the evidence in
his possession in support of his opposition to the transfer of the site of the BPC
petrochemical plant to Batangas province. The hearing shall not exceed a period of
ten (10) days from the date fixed by the BOI, notice of which should be served by
personal service to the petitioner through counsel, at least three (3) days in advance.
The hearings may be held from day to day for a period of ten (10) days without
postponements. The petition for a writ of prohibition or preliminary injunction is
denied. No costs." (Rollo, pages 450-451) llcd
However, acting on the petitioner's motion for partial reconsideration asking that we
rule on the import of P.D. Nos. 949 and 1803 and on the foreign investor's claim of
right of final choice of plant site, in the light of the provisions of the Constitution and
the Omnibus Investments Code of 1987, this Court on October 24, 1989, made the
observation that P.D. Nos. 949 and 1803 "do not provide that the Limay site should be
the only petrochemical zone in the country, nor prohibit the establishment of a
petrochemical plant elsewhere in the country, that the establishment of a
petrochemical plant in Batangas does not violate P.D. No. 949 and P.D. No. 1803.
Our resolution skirted the issue of whether the investor given the initial inducements
and other circumstances surrounding its first choice of plant site may change it simply
because it has the final choice on the matter. The Court merely ruled that the
petitioner appears to have lost interest in the case by his failure to appear at the
hearing that was set by the BOI after receipt of the decision, so he may be deemed to
have waived the fruit of the judgment. On this ground, the motion for partial
reconsideration was denied.
A motion for reconsideration of said resolution was filed by the petitioner asking that
we resolve the basic issue of whether or not the foreign investor has the right of final
choice of plant site; that the non-attendance of the petitioner at the hearing was
because the decision was not yet final and executory; and that the petitioner had not
therefor waived the right to a hearing before the BOI.
In the Court's resolution dated January 17, 1990, we stated:
"Does the investor have a 'right of final choice' of plant site? Neither under the 1987
Constitution nor in the Omnibus Investments Code is there such a "'right of final
choice.' In the first place, the investor's choice is subject to processing and approval
or disapproval by the BOI (Art. 7, Chapter II, Omnibus Investments Code). By
submitting its application and amended application to the BOI for approval, the
investor recognizes the sovereign prerogative of our Government, through the BOI, to
approve or disapprove the same after determining whether its proposed project will
be feasible, desirable and beneficial to our country. By asking that his opposition to
the LPC's amended application be heard by the BOI, the petitioner likewise
acknowledges that the BOI, not the investor, has the last word or the 'final choice' on
the matter.
Secondly, as this case has shown, even a choice that had been approved by the BOI
may not be 'final', for supervening circumstances and changes in the conditions of a
place may dictate a corresponding change in the choice of plant site in order that the
project will not fail. After all, our country will benefit only when a project succeeds, not
when it fails." (Rollo, pp. 538-539)
Nevertheless, the motion for reconsideration of the petitioner was denied.
A minority composed of Justices Melencio-Herrera, Gancayco, Sarmiento and this
ponente voted to grant the motion for reconsideration stating that the hearing set by
the BOI was premature as the decision of the Court was not yet final and executory;
that as contended by the petitioner the Court must first rule on whether or not the
investor has the right of final choice of plant site for if the ruling is in the affirmative,
the hearing would be a useless exercise; that in the October 19, 1989 resolution, the
Court while upholding validity of the transfer of the plant site did not rule on the issue
of who has the final choice; that they agree with the observation of the majority that
"the investor has no final choice either under the 1987 Constitution or in the Omnibus
Investments Code and that it is the BOI who decides for the government" and that the
plea of the petitioner should be granted to give him the chance to show the justness
of his claim and to enable the BOI to give a second hard look at the matter. llcd
Thus, the herein petition which relies on the ruling of the Court in the resolution of
January 17, 1990 in G.R. No. 88637 that the investor has no right of final choice
under the 1987 Constitution and the Omnibus Investments Code. Cdpr
Under P.D. No. 1803 dated January 16, 1981, 576 hectares of the public domain
located in Lamao, Limay, Bataan were reserved for the Petrochemical Industrial Zone
under the administration, management, and ownership of the Philippine National Oil
Company (PNOC).
The Bataan Refining Corporation (BRC) is a wholly government owned corporation,
located at Bataan. It produces 60% of the national output of naphtha.
Taiwanese investors in a petrochemical project formed the Bataan Petrochemical
Corporation (BPC) and applied with BOI for registration as a new domestic producer
of petrochemicals. Its application specified Bataan as the plant site. One of the terms
and conditions for registration of the project was the use of "naphtha cracker" and
"naphtha" as feedstock or fuel for its petrochemical plant. The petrochemical plant
was to be a joint venture with PNOC. BPC was issued a certificate of registration on
February 24, 1988 by BOI.
BPC was given pioneer status and accorded fiscal and other incentives by BOI, like,
(1) exemption from taxes on raw materials, (2) repatriation of the entire proceeds of
liquidation investments in currency originally made and at the exchange rate obtaining
at the time of repatriation; and (3) remittance of earnings on investments. As
additional incentive, the House of Representatives approved a bill introduced by the
petitioner eliminating the 48% ad valorem tax on naphtha if and when it is used as
raw materials in the petrochemical plant. (G.R. No. 88637, September 7, 1989, pp.
2-3. Rollo, pp. 441-442).
However, in February, 1989, A.T. Chong, chairman of USI Far East Corporation, the
major investor in BPC, personally delivered to Trade Secretary Jose Concepcion a
letter dated January 25, 1989 advising him of BPC's desire to amend the original
registration certification of its project by changing the job site from Limay, Bataan, to
Batangas. The reason adduced for the transfer was the insurgency and unstable
labor situation, and the presence in Batangas of a huge liquefied petroleum gas
(LPG) depot owned by the Philippine Shell Corporation.
The petitioner vigorously opposed the proposal and no less than President Aquino
expressed her preference that the plant be established in Bataan in a conference with
the Taiwanese investors, the Secretary of National Defense and The Chief of Staff of
the Armed Forces.
Despite speeches in the Senate and House opposing the transfer of the project to
Batangas, BPC filed on April 11, 1989 its request for approval of the amendments. Its
application is as follows: "(1) increasing the investment amount from US$220 million
to US$320 million; (2) increasing the production capacity of its naphtha cracker,
polyethylene plant and polypropylene plant; (3) changing the feedstock from naphtha
only to "naphtha and/or liquefied petroleum gas;" and (4) transferring the job site from
Limay, Bataan, to Batangas. (Annex B to Petition; Rollo, p. 25)
Notwithstanding opposition from any quarters and the request of the petitioner
addressed to Secretary Concepcion to be furnished a copy of the proposed
amendment with its attachments which was denied by the BOI on May 25, 1989, BOI
approved the revision of the registration of BPC's petrochemical project. (Petition,
Annex F; Rollo, p. 32; See pp. 4 to 6, Decision in G.R. No. 88637; supra.)
BOI Vice-Chairman Tomas I. Alcantara testifying before the Committee on Ways and
Means of the Senate asserted that:
"The BOI has taken a public position preferring Bataan over Batangas as the site of
the petrochemical complex, as this would provide a better distribution of industries
around the Metro Manila area. . . . In advocating the choice of Bataan as the project
site for the petrochemical complex, the BOI, however, made it clear, and I would like
to repeat this that the BOI made it clear in its view that the BOI or the government for
that matter could only recommend as to where the project should be located. The BOI
recognizes and respects the principle that the final choice is still with the proponent
who would in the final analysis provide the funding or risk capital for the project.
(Petition, p. 13; Annex D to the petition)
This position has not been denied by BOI in its pleadings in G.R. No. 88637 and in
the present petition.
Section 1, Article VIII of the 1987 Constitution provides:
"SECTION 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government."
There is before us an actual controversy whether the petrochemical plant should
remain in Bataan or should be transferred to Batangas, and whether its feedstock
originally of naphtha only should be changed to naphtha and or liquefied petroleum
gas as the approved amended application of the BPC, now Luzon Petrochemical
Corporation (LPC), shows. And in the light of the categorical admission of the BOI
that it is the investor who has the final choice of the site and the decision on the
feedstock, whether or not it constitutes a grave abuse of discretion for the BOI to yield
to the wishes of the investor, national interest notwithstanding.
We rule that the Court has a constitutional duty to step into this controversy and
determine the paramount issue. We grant the petition.
First, Bataan was the original choice as the plant site of the BOI to which the BPC
agreed. That is why it organized itself into a corporation bearing the name Bataan.
There is available 576 hectares of public land precisely reserved as the petrochemical
zone in Limay, Bataan under P.D. No. 1803. There is no need to buy expensive real
estate for the site unlike in the proposed transfer to Batangas. The site is the result of
careful study long before any covetous interests intruded into the choice. The site is
ideal. It is not unduly constricted and allows for expansion. The respondents have not
shown nor reiterated that the alleged peace and order situation in Bataan or unstable
labor situation warrant a transfer of the plant site to Batangas. Certainly, these were
taken into account when the firm named itself Bataan Petrochemical Corporation.
Moreover, the evidence proves the contrary.
Second, the BRC, a government owned Filipino corporation, located in Bataan
produces 60% of the national output of naphtha which can be used as feedstock for
the plant in Bataan. It can provide the feedstock requirement of the plant. On the
other hand, the country is short of LPG and there is need to import the same for use
of the plant in Batangas The local production thereof by Shell can hardly supply the
needs of the consumers for cooking purposes. Scarce dollars will be diverted,
unnecessarily, from vitally essential projects in order to feed the furnaces of the
transferred petrochemical plant.
Third, naphtha as feedstock has been exempted by law from the ad valorem tax by
the approval of Republic Act No. 6767 by President Aquino but excluding LPG from
exemption from ad valorem tax. The law was enacted specifically for the
petrochemical industry. The policy determination by both Congress and the President
is clear. Neither BOI nor a foreign investor should disregard or contravene expressed
policy by shifting the feedstock from naphtha to LPG. llcd
Fourth, under Section 10, Article XII of the 1987 Constitution, it is the duty of the State
to "regulate and exercise authority over foreign investments within its national
jurisdiction and in accordance with its national goals and priorities." The development
of a self-reliant and independent national economy effectively controlled by Filipinos
is mandated in Section 19, Article II of the Constitution.
In Article 2 of the Omnibus Investments Code of 1987 "the sound development of the
national economy in consonance with the principles and objectives of economic
nationalism" is the set goal of government.
Fifth, with the admitted fact that the investor is raising the greater portion of the capital
for the project from local sources by way of loan which led to the so-called "petroscam
scandal", the capital requirements would be greatly minimized if LPC does not have
to buy the land for the project and its feedstock shall be limited to naphtha which is
certainly more economical, more readily available than LPG, and does not have to be
imported.
Sixth, if the plant site is maintained in Bataan, the PNOC shall be a partner in the
venture to the great benefit and advantage of the government which shall have a
participation in the management of the project instead of a firm which is a huge
multinational corporation.
In the light of all the clear advantages manifest in the plant's remaining in Bataan,
practically nothing is shown to justify the transfer to Batangas except a near-absolute
discretion given by BOI to investors not only to freely choose the site but to transfer it
from their own first choice for reasons which remain murky to say the least.
And this brings us to a prime consideration which the Court cannot rightly ignore.
Section 1, Article XII of the Constitution provides that:
xxx xxx xxx
"The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices."
xxx xxx xxx
Every provision of the Constitution on the national economy and patrimony is infused
with the spirit of national interest. The non-alienation of natural resources, the State's
full control over the development and utilization of our scarce resources, agreements
with foreigners being based on real contributions to the economic growth and general
welfare of the country and the regulation of foreign investments in accordance with
national goals and priorities are too explicit not to be noticed and understood.
A petrochemical industry is not an ordinary investment opportunity. It should not be
treated like a garment or embroidery firm, a shoe-making venture, or even an
assembler of cars or manufacturer of computer chips, where the BOI reasoning may
be accorded fuller faith and credit. The petrochemical industry is essential to the
national interest. In other ASEAN countries like Indonesia and Malaysia, the
government superintends the industry by controlling the upstream or cracker facility.
In this particular BPC venture, not only has the Government given unprecedented
favors, among them: LexLib
(1) For an initial authorized capital of only P20 million, the Central Bank gave an
eligible relending credit or relending facility worth US $50 million and a debt to swap
arrangement for US$ 30 million or a total accommodation of US $80 million which at
current exchange rates is around P2080 million.
(2) A major part of the company's capitalization shall not come from foreign sources
but from loans, initially a P1 Billion syndicated loan, to be given by both government
banks and a consortium of Philippine private banks or in common parlance, a case of
"guiniguisa sa sariling manteca."
(3) Tax exemptions and privileges were given as part of its "preferred pioneer status."
(4) Loan applications of other Philippine firms will be crowded out of the Asian
Development Bank portfolio because of the petrochemical firm's massive loan
request. (Taken from the proceedings before the Senate Blue Ribbon Committee)but
through its regulatory agency, the BOI, it surrenders even the power to make a
company abide by its initial choice, a choice free from any suspicion of unscrupulous
machinations and a choice which is undoubtedly in the best interests of the Filipino
people.
The Court, therefore, holds and finds that the BOI committed a grave abuse of
discretion in approving the transfer of the petrochemical plant from Bataan to
Batangas and authorizing the change of feedstock from naphtha only to naphtha and/
or LPG for the main reason that the final say is in the investor all other circumstances
to the contrary notwithstanding. No cogent advantage to the government has been
shown by this transfer. This is a repudiation of the independent policy of the
government expressed in numerous laws and the Constitution to run its own affairs
the way it deems best for the national interest.
One can but remember the words of a great Filipino leader who in part said he would
not mind having a government run like hell by Filipinos than one subservient to
foreign dictation. In this case, it is not even a foreign government but an ordinary
investor whom the BOI allows to dictate what we shall do with our heritage. LexLib
WHEREFORE, the petition is hereby granted. The decision of the respondent Board
of Investments approving the amendment of the certificate of registration of the Luzon
Petrochemical Corporation on May 23, 1989 under its Resolution No. 193, Series of
1989, (Annex F to the Petition) is SET ASIDE as NULL and VOID. The original
certificate of registration of BPC (now LPC) of February 24, 1988 with Bataan as the
plant site and naphtha as the feedstock is, therefore, ordered maintained.
SO ORDERED.
POLLO V CHAIRPERSON KARINA CONSTANTINO-DAVID
VILLARAMA, JR., J p:
This case involves a search of office computer assigned to a government employee
who was charged administratively and eventually dismissed from the service. The
employee's personal files stored in the computer were used by the government
employer as evidence of misconduct.
Before us is a petition for review on certiorari under Rule 45 which seeks to reverse
and set aside the Decision 1 dated October 11, 2007 and Resolution 2 dated
February 29, 2008 of the Court of Appeals (CA). The CA dismissed the petition for
certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio "Ricky" A. Pollo to nullify
the proceedings conducted by the Civil Service Commission (CSC) which found him
guilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the
service, and violation of Republic Act (R.A.) No. 6713 and penalized him with
dismissal.
The factual antecedents:
Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office
No. IV and also the Officer-in-Charge of the Public Assistance and Liaison Division
(PALD) under the "Mamamayan Muna Hindi Mamaya Na" program of the CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to
respondent CSC Chairperson Karina Constantino-David which was marked
"Confidential" and sent through a courier service (LBC) from a certain "Alan San
Pascual" of Bagong Silang, Caloocan City, was received by the Integrated Records
Management Office (IRMO) at the CSC Central Office. Following office practice in
which documents marked "Confidential" are left unopened and instead sent to the
addressee, the aforesaid letter was given directly to Chairperson David. ATDHSC
The letter-complaint reads:
The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City
Dear Madam Chairwoman,
Belated Merry Christmas and Advance Happy New Year!
As a concerned citizen of my beloved country, I would like to ask from you personally
if it is just alright for an employee of your agency to be a lawyer of an accused gov't
employee having a pending case in the csc. I honestly think this is a violation of law
and unfair to others and your office.
I have known that a person have been lawyered by one of your attorny in the region 4
office. He is the chief of the Mamamayan muna hindi mamaya na division. He have
been helping many who have pending cases in the Csc. The justice in our govt
system will not be served if this will continue. Please investigate this anomaly
because our perception of your clean and good office is being tainted.
Concerned Govt employee 3
Chairperson David immediately formed a team of four personnel with background in
information technology (IT), and issued a memo directing them to conduct an
investigation and specifically "to back up all the files in the computers found in the
Mamamayan Muna (PALD) and Legal divisions." 4 After some briefing, the team
proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon their
arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV,
respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert
Unite (Director Unite) of Chairperson David's directive.
The backing-up of all files in the hard disk of computers at the PALD and Legal
Services Division (LSD) was witnessed by several employees, together with Directors
Castillo and Unite who closely monitored said activity. At around 6:00 p.m., Director
Unite sent text messages to petitioner and the head of LSD, who were both out of the
office at the time, informing them of the ongoing copying of computer files in their
divisions upon orders of the CSC Chair. The text messages received by petitioner
read:
"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD
per instruction of the Chairman. If you can make it here now it would be better."
"All PCs of PALD and LSD are being backed up per memo of the chair."
"CO IT people arrived just now for this purpose. We were not also informed about
this.
"We can't do anything about . . . it . . . it's a directive from chair."
"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the
memo via mms" 5
Petitioner replied also thru text message that he was leaving the matter to Director
Unite and that he will just get a lawyer. Another text message received by petitioner
from PALD staff also reported the presence of the team from CSC main office: "Sir
may mga taga C.O. daw sa kuarto natin." 6 At around 10:00 p.m. of the same day, the
investigating team finished their task. The next day, all the computers in the PALD
were sealed and secured for the purpose of preserving all the files stored therein.
Several diskettes containing the back-up files sourced from the hard disk of PALD
and LSD computers were turned over to Chairperson David. The contents of the
diskettes were examined by the CSC's Office for Legal Affairs (OLA). It was found
that most of the files in the 17 diskettes containing files copied from the computer
assigned to and being used by the petitioner, numbering about 40 to 42 documents,
were draft pleadings or letters 7 in connection with administrative cases in the CSC
and other tribunals. On the basis of this finding, Chairperson David issued the Show-
Cause Order 8 dated January 11, 2007, requiring the petitioner, who had gone on
extended leave, to submit his explanation or counter-affidavit within five days from
notice.
Evaluating the subject documents obtained from petitioner's personal files,
Chairperson David made the following observations:
Most of the foregoing files are drafts of legal pleadings or documents that are related
to or connected with administrative cases that may broadly be lumped as pending
either in the CSCRO No. IV, the CSC-NCR, the CSC-Central Office or other tribunals.
It is also of note that most of these draft pleadings are for and on behalves of parties,
who are facing charges as respondents in administrative cases. This gives rise to the
inference that the one who prepared them was knowingly, deliberately and willfully
aiding and advancing interests adverse and inimical to the interest of the CSC as the
central personnel agency of the government tasked to discipline misfeasance and
malfeasance in the government service. The number of pleadings so prepared further
demonstrates that such person is not merely engaged in an isolated practice but
pursues it with seeming regularity. It would also be the height of naivete or credulity,
and certainly against common human experience, to believe that the person
concerned had engaged in this customary practice without any consideration, and in
fact, one of the retrieved files (item 13 above) appears to insinuate the collection of
fees. That these draft pleadings were obtained from the computer assigned to Pollo
invariably raises the presumption that he was the one responsible or had a hand in
their drafting or preparation since the computer of origin was within his direct control
and disposition. 9
Petitioner filed his Comment, denying that he is the person referred to in the
anonymous letter-complaint which had no attachments to it, because he is not a
lawyer and neither is he "lawyering" for people with cases in the CSC. He accused
CSC officials of conducting a "fishing expedition" when they unlawfully copied and
printed personal files in his computer, and subsequently asking him to submit his
comment which violated his right against self-incrimination. He asserted that he had
protested the unlawful taking of his computer done while he was on leave, citing the
letter dated January 8, 2007 in which he informed Director Castillo that the files in his
computer were his personal files and those of his sister, relatives, friends and some
associates and that he is not authorizing their sealing, copying, duplicating and
printing as these would violate his constitutional right to privacy and protection against
self-incrimination and warrantless search and seizure. He pointed out that though
government property, the temporary use and ownership of the computer issued under
a Memorandum of Receipt (MR) is ceded to the employee who may exercise all
attributes of ownership, including its use for personal purposes. As to the anonymous
letter, petitioner argued that it is not actionable as it failed to comply with the
requirements of a formal complaint under the Uniform Rules on Administrative Cases
in the Civil Service (URACC). In view of the illegal search, the files/documents copied
from his computer without his consent is thus inadmissible as evidence, being "fruits
of a poisonous tree." 10
On February 26, 2007, the CSC issued Resolution No. 070382 11 finding prima facie
case against the petitioner and charging him with Dishonesty, Grave Misconduct,
Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713
(Code of Conduct and Ethical Standards for Public Officials and Employees).
Petitioner was directed to submit his answer under oath within five days from notice
and indicate whether he elects a formal investigation. Since the charges fall under
Section 19 of the URACC, petitioner was likewise placed under 90 days preventive
suspension effective immediately upon receipt of the resolution. Petitioner received a
copy of Resolution No. 070382 on March 1, 2007.
Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer)
assailing the formal charge as without basis having proceeded from an illegal search
which is beyond the authority of the CSC Chairman, such power pertaining solely to
the court. Petitioner reiterated that he never aided any people with pending cases at
the CSC and alleged that those files found in his computer were prepared not by him
but by certain persons whom he permitted, at one time or another, to make use of his
computer out of close association or friendship. Attached to the motion were the
affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at
petitioner's CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosa's client who
attested that petitioner had nothing to do with the pleadings or bill for legal fees
because in truth he owed legal fees to Atty. Solosa and not to petitioner. Petitioner
contended that the case should be deferred in view of the prejudicial question raised
in the criminal complaint he filed before the Ombudsman against Director Buensalida,
whom petitioner believes had instigated this administrative case. He also prayed for
the lifting of the preventive suspension imposed on him. In its Resolution No. 070519
12 dated March 19, 2007, the CSC denied the omnibus motion. The CSC resolved to
treat the said motion as petitioner's answer.
On March 14, 2007, petitioner filed an Urgent Petition 13 under Rule 65 of the Rules
of Court, docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007
Show-Cause Order and Resolution No. 070382 dated February 26, 2007 as having
been issued with grave abuse of discretion amounting to excess or total absence of
jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal
complaint against respondents Directors Racquel D.G. Buensalida (Chief of Staff,
Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of
the Ombudsman, and a separate complaint for disbarment against Director
Buensalida. 14
On April 17, 2007, petitioner received a notice of hearing from the CSC setting the
formal investigation of the case on April 30, 2007. On April 25, 2007, he filed in the CA
an Urgent Motion for the issuance of TRO and preliminary injunction. 15 Since he
failed to attend the pre-hearing conference scheduled on April 30, 2007, the CSC
reset the same to May 17, 2007 with warning that the failure of petitioner and/or his
counsel to appear in the said pre-hearing conference shall entitle the prosecution to
proceed with the formal investigation ex-parte. 16 Petitioner moved to defer or to
reset the pre-hearing conference, claiming that the investigation proceedings should
be held in abeyance pending the resolution of his petition by the CA. The CSC denied
his request and again scheduled the pre-hearing conference on May 18, 2007 with
similar warning on the consequences of petitioner and/or his counsel's non-
appearance. 17 This prompted petitioner to file another motion in the CA, to cite the
respondents, including the hearing officer, in indirect contempt. 18
On June 12, 2007, the CSC issued Resolution No. 071134 19 denying petitioner's
motion to set aside the denial of his motion to defer the proceedings and to inhibit the
designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer was directed
to proceed with the investigation proper with dispatch.
In view of the absence of petitioner and his counsel, and upon the motion of the
prosecution, petitioner was deemed to have waived his right to the formal
investigation which then proceeded ex parte.
On July 24, 2007, the CSC issued Resolution No. 071420, 20 the dispositive part of
which reads:
WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio
A. Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct
Prejudicial to the Best Interest of the Service and Violation of Republic Act 6713. He
is meted the penalty of DISMISSAL FROM THE SERVICE with all its accessory
penalties, namely, disqualification to hold public office, forfeiture of retirement
benefits, cancellation of civil service eligibilities and bar from taking future civil service
examinations. 21
On the paramount issue of the legality of the search conducted on petitioner's
computer, the CSC noted the dearth of jurisprudence relevant to the factual milieu of
this case where the government as employer invades the private files of an employee
stored in the computer assigned to him for his official use, in the course of initial
investigation of possible misconduct committed by said employee and without the
latter's consent or participation. The CSC thus turned to relevant rulings of the United
States Supreme Court, and cited the leading case of O'Connor v. Ortega 22 as
authority for the view that government agencies, in their capacity as employers, rather
than law enforcers, could validly conduct search and seizure in the governmental
workplace without meeting the "probable cause" or warrant requirement for search
and seizure. Another ruling cited by the CSC is the more recent case of United States
v. Mark L. Simons 23 which declared that the federal agency's computer use policy
foreclosed any inference of reasonable expectation of privacy on the part of its
employees. Though the Court therein recognized that such policy did not, at the same
time, erode the respondent's legitimate expectation of privacy in the office in which
the computer was installed, still, the warrantless search of the employee's office was
upheld as valid because a government employer is entitled to conduct a warrantless
search pursuant to an investigation of work-related misconduct provided the search is
reasonable in its inception and scope.
With the foregoing American jurisprudence as benchmark, the CSC held that
petitioner has no reasonable expectation of privacy with regard to the computer he
was using in the regional office in view of the CSC computer use policy which
unequivocally declared that a CSC employee cannot assert any privacy right to a
computer assigned to him. Even assuming that there was no such administrative
policy, the CSC was of the view that the search of petitioner's computer successfully
passed the test of reasonableness for warrantless searches in the workplace as
enunciated in the aforecited authorities. The CSC stressed that it pursued the search
in its capacity as government employer and that it was undertaken in connection with
an investigation involving work-related misconduct, which exempts it from the warrant
requirement under the Constitution. With the matter of admissibility of the evidence
having been resolved, the CSC then ruled that the totality of evidence adequately
supports the charges of grave misconduct, dishonesty, conduct prejudicial to the best
interest of the service and violation of R.A. No. 6713 against the petitioner. These
grave infractions justified petitioner's dismissal from the service with all its accessory
penalties.
In his Memorandum 24 filed in the CA, petitioner moved to incorporate the above
resolution dismissing him from the service in his main petition, in lieu of the filing of an
appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed for the
inclusion of Resolution No. 071800 25 which denied his motion for reconsideration.
By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after
finding no grave abuse of discretion committed by respondents CSC officials. The CA
held that: (1) petitioner was not charged on the basis of the anonymous letter but from
the initiative of the CSC after a fact-finding investigation was conducted and the
results thereof yielded a prima facie case against him; (2) it could not be said that in
ordering the back-up of files in petitioner's computer and later confiscating the same,
Chairperson David had encroached on the authority of a judge in view of the CSC
computer policy declaring the computers as government property and that employee-
users thereof have no reasonable expectation of privacy in anything they create,
store, send, or receive on the computer system; and (3) there is nothing
contemptuous in CSC's act of proceeding with the formal investigation as there was
no restraining order or injunction issued by the CA.
His motion for reconsideration having been denied by the CA, petitioner brought this
appeal arguing that
I. THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND
COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW
AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT
ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH
AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2nd
PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS AN
[AMENDMENT] TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;
II. THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE
ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT
RULED THAT PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO
UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY
VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL
MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID
AND NOT BY THE COLLEGIAL COMMISSION CONSIDERING THAT POLICY
MATTERS INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE COVERED BY AN
OFFICE MEMORANDUM WHICH IS LIMITED TO PROCEDURAL AND ROUTINARY
INSTRUCTION;
III. THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE
ABUSE OF DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED
JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE EVENING
THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION
LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE
INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE ERRED IN
HOLDING THAT DATA STORED IN THE GOVERNMENT COMPUTERS ARE
GOVERNMENT PROPERTIES INCLUDING THE PERSONAL FILES WHEN THE
CONTRARY IS PROVIDED UNDER SECTION 14 OF O.M. 10 s. 2002. AND
GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY
VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF
A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE
CONSTITUTION;
IV. THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL
OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED
AS WELL AS ITS FAILURE TO EVALUATE AND TAKE ACTION ON THE 2
MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420
DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10,
2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO
RESOLVE ANCILLARY PRAYER FOR TRO. 26
Squarely raised by the petitioner is the legality of the search conducted on his office
computer and the copying of his personal files without his knowledge and consent,
alleged as a transgression on his constitutional right to privacy.
The right to privacy has been accorded recognition in this jurisdiction as a facet of the
right protected by the guarantee against unreasonable search and seizure under
Section 2, Article III of the 1987 Constitution, 27 which provides:
SEC. 2. 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.
The constitutional guarantee is not a prohibition of all searches and seizures but only
of "unreasonable" searches and seizures. 28 But to fully understand this concept and
application for the purpose of resolving the issue at hand, it is essential that we
examine the doctrine in the light of pronouncements in another jurisdiction. As the
Court declared in People v. Marti: 29
Our present constitutional provision on the guarantee against unreasonable search
and seizure had its origin in the 1935 Charter which, worded as follows:
"The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated, and no warrants
shall issue but upon probable cause, to be determined 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." (Sec. 1[3], Article III)
was in turn derived almost verbatim from the Fourth Amendment to the United States
Constitution. As such, the Court may turn to the pronouncements of the United States
Federal Supreme Court and State Appellate Courts which are considered doctrinal in
this jurisdiction. 30
In the 1967 case of Katz v. United States, 31 the US Supreme Court held that the act
of FBI agents in electronically recording a conversation made by petitioner in an
enclosed public telephone booth violated his right to privacy and constituted a "search
and seizure". Because the petitioner had a reasonable expectation of privacy in using
the enclosed booth to make a personal telephone call, the protection of the Fourth
Amendment extends to such area. In the concurring opinion of Mr. Justice Harlan, it
was further noted that the existence of privacy right under prior decisions involved a
two-fold requirement: first, that a person has exhibited an actual (subjective)
expectation of privacy; and second, that the expectation be one that society is
prepared to recognize as reasonable (objective). 32
In Mancusi v. DeForte 33 which addressed the reasonable expectations of private
employees in the workplace, the US Supreme Court held that a union employee had
Fourth Amendment rights with regard to an office at union headquarters that he
shared with other union officials, even as the latter or their guests could enter the
office. The Court thus "recognized that employees may have a reasonable
expectation of privacy against intrusions by police."
That the Fourth Amendment equally applies to a government workplace was
addressed in the 1987 case of O'Connor v. Ortega 34 where a physician, Dr. Magno
Ortega, who was employed by a state hospital, claimed a violation of his Fourth
Amendment rights when hospital officials investigating charges of mismanagement of
the psychiatric residency program, sexual harassment of female hospital employees
and other irregularities involving his private patients under the state medical aid
program, searched his office and seized personal items from his desk and filing
cabinets. In that case, the Court categorically declared that "[i]ndividuals do not lose
Fourth Amendment rights merely because they work for the government instead of a
private employer." 35 A plurality of four Justices concurred that the correct analysis
has two steps: first, because "some government offices may be so open to fellow
employees or the public that no expectation of privacy is reasonable", a court must
consider "[t]he operational realities of the workplace" in order to determine whether an
employee's Fourth Amendment rights are implicated; and next, where an employee
has a legitimate privacy expectation, an employer's intrusion on that expectation "for
noninvestigatory, work-related purposes, as well as for investigations of work-related
misconduct, should be judged by the standard of reasonableness under all the
circumstances." 36
On the matter of government employees' reasonable expectations of privacy in their
workplace, O'Connor teaches:
. . . Public employees' expectations of privacy in their offices, desks, and file cabinets,
like similar expectations of employees in the private sector, may be reduced by virtue
of actual office practices and procedures, or by legitimate regulation. . . . The
employee's expectation of privacy must be assessed in the context of the
employment relation. An office is seldom a private enclave free from entry by
supervisors, other employees, and business and personal invitees. Instead, in many
cases offices are continually entered by fellow employees and other visitors during
the workday for conferences, consultations, and other work-related visits. Simply put,
it is the nature of government offices that others such as fellow employees,
supervisors, consensual visitors, and the general public may have frequent access
to an individual's office. We agree with JUSTICE SCALIA that "[c]onstitutional
protection against unreasonable searches by the government does not disappear
merely because the government has the right to make reasonable intrusions in its
capacity as employer," . . . but some government offices may be so open to fellow
employees or the public that no expectation of privacy is reasonable. . . . Given the
great variety of work environments in the public sector, the question of whether an
employee has a reasonable expectation of privacy must be addressed on a case-by-
case basis. 37 (Citations omitted; emphasis supplied.)
On the basis of the established rule in previous cases, the US Supreme Court
declared that Dr. Ortega's Fourth Amendment rights are implicated only if the conduct
of the hospital officials infringed "an expectation of privacy that society is prepared to
consider as reasonable." Given the undisputed evidence that respondent Dr. Ortega
did not share his desk or file cabinets with any other employees, kept personal
correspondence and other private items in his own office while those work-related
files (on physicians in residency training) were stored outside his office, and there
being no evidence that the hospital had established any reasonable regulation or
policy discouraging employees from storing personal papers and effects in their desks
or file cabinets (although the absence of such a policy does not create any
expectation of privacy where it would not otherwise exist), the Court concluded that
Dr. Ortega has a reasonable expectation of privacy at least in his desk and file
cabinets. 38
Proceeding to the next inquiry as to whether the search conducted by hospital
officials was reasonable, the O'Connor plurality decision discussed the following
principles:
Having determined that Dr. Ortega had a reasonable expectation of privacy in his
office, the Court of Appeals simply concluded without discussion that the "search . . .
was not a reasonable search under the fourth amendment." . . . "[t]o hold that the
Fourth Amendment applies to searches conducted by [public employers] is only to
begin the inquiry into the standards governing such searches . . . [W]hat is
reasonable depends on the context within which a search takes place. . . . Thus, we
must determine the appropriate standard of reasonableness applicable to the search.
A determination of the standard of reasonableness applicable to a particular class of
searches requires "balanc[ing] the nature and quality of the intrusion on the
individual's Fourth Amendment interests against the importance of the governmental
interests alleged to justify the intrusion." . . . In the case of searches conducted by a
public employer, we must balance the invasion of the employees' legitimate
expectations of privacy against the government's need for supervision, control, and
the efficient operation of the workplace.
In our view, requiring an employer to obtain a warrant whenever the employer wished
to enter an employee's office, desk, or file cabinets for a work-related purpose would
seriously disrupt the routine conduct of business and would be unduly burdensome.
Imposing unwieldy warrant procedures in such cases upon supervisors, who would
otherwise have no reason to be familiar with such procedures, is simply
unreasonable. In contrast to other circumstances in which we have required warrants,
supervisors in offices such as at the Hospital are hardly in the business of
investigating the violation of criminal laws. Rather, work-related searches are merely
incident to the primary business of the agency. Under these circumstances, the
imposition of a warrant requirement would conflict with the "common-sense realization
that government offices could not function if every employment decision became a
constitutional matter." . . .
The governmental interest justifying work-related intrusions by public employers is the
efficient and proper operation of the workplace. Government agencies provide myriad
services to the public, and the work of these agencies would suffer if employers were
required to have probable cause before they entered an employee's desk for the
purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give
the concept of probable cause, rooted as it is in the criminal investigatory context,
much meaning when the purpose of a search is to retrieve a file for work-related
reasons. Similarly, the concept of probable cause has little meaning for a routine
inventory conducted by public employers for the purpose of securing state property. . .
. To ensure the efficient and proper operation of the agency, therefore, public
employers must be given wide latitude to enter employee offices for work-related,
noninvestigatory reasons.
We come to a similar conclusion for searches conducted pursuant to an investigation
of work-related employee misconduct. Even when employers conduct an
investigation, they have an interest substantially different from "the normal need for
law enforcement." . . . Public employers have an interest in ensuring that their
agencies operate in an effective and efficient manner, and the work of these agencies
inevitably suffers from the inefficiency, incompetence, mismanagement, or other work-
related misfeasance of its employees. Indeed, in many cases, public employees are
entrusted with tremendous responsibility, and the consequences of their misconduct
or incompetence to both the agency and the public interest can be severe. In contrast
to law enforcement officials, therefore, public employers are not enforcers of the
criminal law; instead, public employers have a direct and overriding interest in
ensuring that the work of the agency is conducted in a proper and efficient manner. In
our view, therefore, a probable cause requirement for searches of the type at issue
here would impose intolerable burdens on public employers. The delay in correcting
the employee misconduct caused by the need for probable cause rather than
reasonable suspicion will be translated into tangible and often irreparable damage to
the agency's work, and ultimately to the public interest. . . .
In sum, we conclude that the "special needs, beyond the normal need for law
enforcement make the . . . probable-cause requirement impracticable," . . . for
legitimate, work-related noninvestigatory intrusions as well as investigations of work-
related misconduct. A standard of reasonableness will neither unduly burden the
efforts of government employers to ensure the efficient and proper operation of the
workplace, nor authorize arbitrary intrusions upon the privacy of public employees.
We hold, therefore, that public employer intrusions on the constitutionally protected
privacy interests of government employees for noninvestigatory, work-related
purposes, as well as for investigations of work-related misconduct, should be judged
by the standard of reasonableness under all the circumstances. Under this
reasonableness standard, both the inception and the scope of the intrusion must be
reasonable:
"Determining the reasonableness of any search involves a twofold inquiry: first, one
must consider 'whether the . . . action was justified at its inception,' . . .; second, one
must determine whether the search as actually conducted 'was reasonably related in
scope to the circumstances which justified the interference in the first place,'" . . .
Ordinarily, a search of an employee's office by a supervisor will be "justified at its
inception" when there are reasonable grounds for suspecting that the search will turn
up evidence that the employee is guilty of work-related misconduct, or that the search
is necessary for a noninvestigatory work-related purpose such as to retrieve a needed
file. . . . The search will be permissible in its scope when "the measures adopted are
reasonably related to the objectives of the search and not excessively intrusive in light
of . . . the nature of the [misconduct]." . . . 39 (Citations omitted; emphasis supplied.)
Since the District Court granted summary judgment without a hearing on the factual
dispute as to the character of the search and neither was there any finding made as
to the scope of the search that was undertaken, the case was remanded to said court
for the determination of the justification for the search and seizure, and evaluation of
the reasonableness of both the inception of the search and its scope.
In O'Connor the Court recognized that "special needs" authorize warrantless
searches involving public employees for work-related reasons. The Court thus laid
down a balancing test under which government interests are weighed against the
employee's reasonable expectation of privacy. This reasonableness test implicates
neither probable cause nor the warrant requirement, which are related to law
enforcement. 40
O'Connor was applied in subsequent cases raising issues on employees' privacy
rights in the workplace. One of these cases involved a government employer's search
of an office computer, United States v. Mark L. Simons 41 where the defendant
Simons, an employee of a division of the Central Intelligence Agency (CIA), was
convicted of receiving and possessing materials containing child pornography.
Simons was provided with an office which he did not share with anyone, and a
computer with Internet access. The agency had instituted a policy on computer use
stating that employees were to use the Internet for official government business only
and that accessing unlawful material was specifically prohibited. The policy also
stated that users shall understand that the agency will periodically audit, inspect, and/
or monitor the user's Internet access as deemed appropriate. CIA agents instructed
its contractor for the management of the agency's computer network, upon initial
discovery of prohibited internet activity originating from Simons' computer, to conduct
a remote monitoring and examination of Simons' computer. After confirming that
Simons had indeed downloaded pictures that were pornographic in nature, all the files
on the hard drive of Simon's computer were copied from a remote work station. Days
later, the contractor's representative finally entered Simon's office, removed the
original hard drive on Simon's computer, replaced it with a copy, and gave the original
to the agency security officer. Thereafter, the agency secured warrants and searched
Simons' office in the evening when Simons was not around. The search team copied
the contents of Simons' computer; computer diskettes found in Simons' desk drawer;
computer files stored on the zip drive or on zip drive diskettes; videotapes; and
various documents, including personal correspondence. At his trial, Simons moved to
suppress these evidence, arguing that the searches of his office and computer
violated his Fourth Amendment rights. After a hearing, the district court denied the
motion and Simons was found guilty as charged.
Simons appealed his convictions. The US Supreme Court ruled that the searches of
Simons' computer and office did not violate his Fourth Amendment rights and the first
search warrant was valid. It held that the search remains valid under the O'Connor
exception to the warrant requirement because evidence of the crime was discovered
in the course of an otherwise proper administrative inspection. Simons' violation of the
agency's Internet policy happened also to be a violation of criminal law; this does not
mean that said employer lost the capacity and interests of an employer. The
warrantless entry into Simons' office was reasonable under the Fourth Amendment
standard announced in O'Connor because at the inception of the search, the
employer had "reasonable grounds for suspecting" that the hard drive would yield
evidence of misconduct, as the employer was already aware that Simons had
misused his Internet access to download over a thousand pornographic images. The
retrieval of the hard drive was reasonably related to the objective of the search, and
the search was not excessively intrusive. Thus, while Simons had a reasonable
expectation of privacy in his office, he did not have such legitimate expectation of
privacy with regard to the files in his computer.
. . . To establish a violation of his rights under the Fourth Amendment, Simons must
first prove that he had a legitimate expectation of privacy in the place searched or the
item seized. . . . And, in order to prove a legitimate expectation of privacy, Simons
must show that his subjective expectation of privacy is one that society is prepared to
accept as objectively reasonable. . . .
. . . We conclude that the remote searches of Simons' computer did not violate his
Fourth Amendment rights because, in light of the Internet policy, Simons lacked a
legitimate expectation of privacy in the files downloaded from the Internet.
Additionally, we conclude that Simons' Fourth Amendment rights were not violated by
FBIS' retrieval of Simons' hard drive from his office.
Simons did not have a legitimate expectation of privacy with regard to the record or
fruits of his Internet use in light of the FBIS Internet policy. The policy clearly stated
that FBIS would "audit, inspect, and/or monitor" employees' use of the Internet,
including all file transfers, all websites visited, and all e-mail messages, "as deemed
appropriate." . . . This policy placed employees on notice that they could not
reasonably expect that their Internet activity would be private. Therefore, regardless
of whether Simons subjectively believed that the files he transferred from the Internet
were private, such a belief was not objectively reasonable after FBIS notified him that
it would be overseeing his Internet use. . . . Accordingly, FBIS' actions in remotely
searching and seizing the computer files Simons downloaded from the Internet did
not violate the Fourth Amendment.
The burden is on Simons to prove that he had a legitimate expectation of privacy in
his office. . . . Here, Simons has shown that he had an office that he did not share. As
noted above, the operational realities of Simons' workplace may have diminished his
legitimate privacy expectations. However, there is no evidence in the record of any
workplace practices, procedures, or regulations that had such an effect. We therefore
conclude that, on this record, Simons possessed a legitimate expectation of privacy in
his office.
In the final analysis, this case involves an employee's supervisor entering the
employee's government office and retrieving a piece of government equipment in
which the employee had absolutely no expectation of privacy equipment that the
employer knew contained evidence of crimes committed by the employee in the
employee's office. This situation may be contrasted with one in which the criminal
acts of a government employee were unrelated to his employment. Here, there was a
conjunction of the conduct that violated the employer's policy and the conduct that
violated the criminal law. We consider that FBIS' intrusion into Simons' office to
retrieve the hard drive is one in which a reasonable employer might engage. . . . 42
(Citations omitted; emphasis supplied.)
This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board 43 which
involved the constitutionality of a provision in R.A. No. 9165 requiring mandatory drug
testing of candidates for public office, students of secondary and tertiary schools,
officers and employees of public and private offices, and persons charged before the
prosecutor's office with certain offenses, have also recognized the fact that there may
be such legitimate intrusion of privacy in the workplace.
The first factor to consider in the matter of reasonableness is the nature of the privacy
interest upon which the drug testing, which effects a search within the meaning of
Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves
as the backdrop for the analysis of the privacy expectation of the employees and the
reasonableness of drug testing requirement. The employees' privacy interest in an
office is to a large extent circumscribed by the company's work policies, the collective
bargaining agreement, if any, entered into by management and the bargaining unit,
and the inherent right of the employer to maintain discipline and efficiency in the
workplace. Their privacy expectation in a regulated office environment is, in fine,
reduced; and a degree of impingement upon such privacy has been upheld.
(Emphasis supplied.)
Applying the analysis and principles announced in O'Connor and Simons to the case
at bar, we now address the following questions: (1) Did petitioner have a reasonable
expectation of privacy in his office and computer files?; and (2) Was the search
authorized by the CSC Chair, the copying of the contents of the hard drive on
petitioner's computer reasonable in its inception and scope?
In this inquiry, the relevant surrounding circumstances to consider include "(1) the
employee's relationship to the item seized; (2) whether the item was in the immediate
control of the employee when it was seized; and (3) whether the employee took
actions to maintain his privacy in the item." These factors are relevant to both the
subjective and objective prongs of the reasonableness inquiry, and we consider the
two questions together. 44 Thus, where the employee used a password on his
computer, did not share his office with co-workers and kept the same locked, he had
a legitimate expectation of privacy and any search of that space and items located
therein must comply with the Fourth Amendment. 45
We answer the first in the negative. Petitioner failed to prove that he had an actual
(subjective) expectation of privacy either in his office or government-issued computer
which contained his personal files. Petitioner did not allege that he had a separate
enclosed office which he did not share with anyone, or that his office was always
locked and not open to other employees or visitors. Neither did he allege that he used
passwords or adopted any means to prevent other employees from accessing his
computer files. On the contrary, he submits that being in the public assistance office
of the CSC-ROIV, he normally would have visitors in his office like friends, associates
and even unknown people, whom he even allowed to use his computer which to him
seemed a trivial request. He described his office as "full of people, his friends,
unknown people" and that in the past 22 years he had been discharging his functions
at the PALD, he is "personally assisting incoming clients, receiving documents,
drafting cases on appeals, in charge of accomplishment report, Mamamayan Muna
Program, Public Sector Unionism, Correction of name, accreditation of service, and
hardly had anytime for himself alone, that in fact he stays in the office as a paying
customer." 46 Under this scenario, it can hardly be deduced that petitioner had such
expectation of privacy that society would recognize as reasonable. aASDTE
Moreover, even assuming arguendo, in the absence of allegation or proof of the
aforementioned factual circumstances, that petitioner had at least a subjective
expectation of privacy in his computer as he claims, such is negated by the presence
of policy regulating the use of office computers, as in Simons.
Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly
provides:
POLICY
1. The Computer Resources are the property of the Civil Service Commission and
may be used only for legitimate business purposes.
2. Users shall be permitted access to Computer Resources to assist them in the
performance of their respective jobs.
3. Use of the Computer Resources is a privilege that may be revoked at any given
time.
xxx xxx xxx
No Expectation of Privacy
4. No expectation of privacy. Users except the Members of the Commission shall not
have an expectation of privacy in anything they create, store, send, or receive on the
computer system.
The Head of the Office for Recruitment, Examination and Placement shall select and
assign Users to handle the confidential examination data and processes.
5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they
create, store, send, or receive on the computer through the Internet or any other
computer network. Users understand that the CSC may use human or automated
means to monitor the use of its Computer Resources.
6. Non-exclusivity of Computer Resources. A computer resource is not a personal
property or for the exclusive use of a User to whom a memorandum of receipt (MR)
has been issued. It can be shared or operated by other users. However, he is
accountable therefor and must insure its care and maintenance.
xxx xxx xxx
Passwords
12. Responsibility for passwords. Users shall be responsible for safeguarding their
passwords for access to the computer system. Individual passwords shall not be
printed, stored online, or given to others. Users shall be responsible for all
transactions made using their passwords. No User may access the computer system
with another User's password or account.
13. Passwords do not imply privacy. Use of passwords to gain access to the computer
system or to encode particular files or messages does not imply that Users have an
expectation of privacy in the material they create or receive on the computer system.
The Civil Service Commission has global passwords that permit access to all
materials stored on its networked computer system regardless of whether those
materials have been encoded with a particular User's password. Only members of the
Commission shall authorize the application of the said global passwords. TCEaDI
xxx xxx xxx 47 (Emphasis supplied.)
The CSC in this case had implemented a policy that put its employees on notice that
they have no expectation of privacy in anything they create, store, send or receive on
the office computers, and that the CSC may monitor the use of the computer
resources using both automated or human means. This implies that on-the-spot
inspections may be done to ensure that the computer resources were used only for
such legitimate business purposes.
One of the factors stated in O'Connor which are relevant in determining whether an
employee's expectation of privacy in the workplace is reasonable is the existence of a
workplace privacy policy. 48 In one case, the US Court of Appeals Eighth Circuit held
that a state university employee has not shown that he had a reasonable expectation
of privacy in his computer files where the university's computer policy, the computer
user is informed not to expect privacy if the university has a legitimate reason to
conduct a search. The user is specifically told that computer files, including e-mail,
can be searched when the university is responding to a discovery request in the
course of litigation. Petitioner employee thus cannot claim a violation of Fourth
Amendment rights when university officials conducted a warrantless search of his
computer for work-related materials. 49
As to the second point of inquiry on the reasonableness of the search conducted on
petitioner's computer, we answer in the affirmative.
The search of petitioner's computer files was conducted in connection with
investigation of work-related misconduct prompted by an anonymous letter-complaint
addressed to Chairperson David regarding anomalies in the CSC-ROIV where the
head of the Mamamayan Muna Hindi Mamaya Na division is supposedly "lawyering"
for individuals with pending cases in the CSC. Chairperson David stated in her sworn
affidavit:
8. That prior to this, as early as 2006, the undersigned has received several text
messages from unknown sources adverting to certain anomalies in Civil Service
Commission Regional Office IV (CSCRO IV) such as, staff working in another
government agency, "selling" cases and aiding parties with pending cases, all done
during office hours and involved the use of government properties;
9. That said text messages were not investigated for lack of any verifiable leads and
details sufficient to warrant an investigation;
10. That the anonymous letter provided the lead and details as it pinpointed the
persons and divisions involved in the alleged irregularities happening in CSCRO IV;
11. That in view of the seriousness of the allegations of irregularities happening in
CSCRO IV and its effect on the integrity of the Commission, I decided to form a team
of Central Office staff to back up the files in the computers of the Public Assistance
and Liaison Division (PALD) and Legal Division;
A search by a government employer of an employee's office is justified at inception
when there are reasonable grounds for suspecting that it will turn up evidence that the
employee is guilty of work-related misconduct. 51 Thus, in the 2004 case decided by
the US Court of Appeals Eighth Circuit, it was held that where a government agency's
computer use policy prohibited electronic messages with pornographic content and in
addition expressly provided that employees do not have any personal privacy rights
regarding their use of the agency information systems and technology, the
government employee had no legitimate expectation of privacy as to the use and
contents of his office computer, and therefore evidence found during warrantless
search of the computer was admissible in prosecution for child pornography. In that
case, the defendant employee's computer hard drive was first remotely examined by
a computer information technician after his supervisor received complaints that he
was inaccessible and had copied and distributed non-work-related e-mail messages
throughout the office. When the supervisor confirmed that defendant had used his
computer to access the prohibited websites, in contravention of the express policy of
the agency, his computer tower and floppy disks were taken and examined. A formal
administrative investigation ensued and later search warrants were secured by the
police department. The initial remote search of the hard drive of petitioner's computer,
as well as the subsequent warrantless searches was held as valid under the
O'Connor ruling that a public employer can investigate work-related misconduct so
long as any search is justified at inception and is reasonably related in scope to the
circumstances that justified it in the first place. 52 CAHaST
Under the facts obtaining, the search conducted on petitioner's computer was justified
at its inception and scope. We quote with approval the CSC's discussion on the
reasonableness of its actions, consistent as it were with the guidelines established by
O'Connor:
Even conceding for a moment that there is no such administrative policy, there is no
doubt in the mind of the Commission that the search of Pollo's computer has
successfully passed the test of reasonableness for warrantless searches in the
workplace as enunciated in the above-discussed American authorities. It bears
emphasis that the Commission pursued the search in its capacity as a government
employer and that it was undertaken in connection with an investigation involving a
work-related misconduct, one of the circumstances exempted from the warrant
requirement. At the inception of the search, a complaint was received recounting that
a certain division chief in the CSCRO No. IV was "lawyering" for parties having
pending cases with the said regional office or in the Commission. The nature of the
imputation was serious, as it was grievously disturbing. If, indeed, a CSC employee
was found to be furtively engaged in the practice of "lawyering" for parties with
pending cases before the Commission would be a highly repugnant scenario, then
such a case would have shattering repercussions. It would undeniably cast clouds of
doubt upon the institutional integrity of the Commission as a quasi-judicial agency,
and in the process, render it less effective in fulfilling its mandate as an impartial and
objective dispenser of administrative justice. It is settled that a court or an
administrative tribunal must not only be actually impartial but must be seen to be so,
otherwise the general public would not have any trust and confidence in it.
Considering the damaging nature of the accusation, the Commission had to act fast, if
only to arrest or limit any possible adverse consequence or fall-out. Thus, on the
same date that the complaint was received, a search was forthwith conducted
involving the computer resources in the concerned regional office. That it was the
computers that were subjected to the search was justified since these furnished the
easiest means for an employee to encode and store documents. Indeed, the
computers would be a likely starting point in ferreting out incriminating evidence.
Concomitantly, the ephemeral nature of computer files, that is, they could easily be
destroyed at a click of a button, necessitated drastic and immediate action. Pointedly,
to impose the need to comply with the probable cause requirement would invariably
defeat the purpose of the work-related investigation.
Worthy to mention, too, is the fact that the Commission effected the warrantless
search in an open and transparent manner. Officials and some employees of the
regional office, who happened to be in the vicinity, were on hand to observe the
process until its completion. In addition, the respondent himself was duly notified,
through text messaging, of the search and the concomitant retrieval of files from his
computer.
All in all, the Commission is convinced that the warrantless search done on computer
assigned to Pollo was not, in any way, vitiated with unconstitutionality. It was a
reasonable exercise of the managerial prerogative of the Commission as an employer
aimed at ensuring its operational effectiveness and efficiency by going after the work-
related misfeasance of its employees. Consequently, the evidence derived from the
questioned search are deemed admissible. 53
Petitioner's claim of violation of his constitutional right to privacy must necessarily fail.
His other argument invoking the privacy of communication and correspondence under
Section 3 (1), Article III of the 1987 Constitution is also untenable considering the
recognition accorded to certain legitimate intrusions into the privacy of employees in
the government workplace under the aforecited authorities. We likewise find no merit
in his contention that O'Connor and Simons are not relevant because the present
case does not involve a criminal offense like child pornography. As already
mentioned, the search of petitioner's computer was justified there being reasonable
ground for suspecting that the files stored therein would yield incriminating evidence
relevant to the investigation being conducted by CSC as government employer of
such misconduct subject of the anonymous complaint. This situation clearly falls
under the exception to the warrantless requirement in administrative searches defined
in O'Connor.
The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty.
Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila 54 involving a
branch clerk (Atty. Morales) who was investigated on the basis of an anonymous
letter alleging that he was consuming his working hours filing and attending to
personal cases, using office supplies, equipment and utilities. The OCA conducted a
spot investigation aided by NBI agents. The team was able to access Atty. Morales'
personal computer and print two documents stored in its hard drive, which turned out
to be two pleadings, one filed in the CA and another in the RTC of Manila, both in the
name of another lawyer. Atty. Morales' computer was seized and taken in custody of
the OCA but was later ordered released on his motion, but with order to the MISO to
first retrieve the files stored therein. The OCA disagreed with the report of the
Investigating Judge that there was no evidence to support the charge against Atty.
Morales as no one from the OCC personnel who were interviewed would give a
categorical and positive statement affirming the charges against Atty. Morales, along
with other court personnel also charged in the same case. The OCA recommended
that Atty. Morales should be found guilty of gross misconduct. The Court En Banc
held that while Atty. Morales may have fallen short of the exacting standards required
of every court employee, the Court cannot use the evidence obtained from his
personal computer against him for it violated his constitutional right against
unreasonable searches and seizures. The Court found no evidence to support the
claim of OCA that they were able to obtain the subject pleadings with the consent of
Atty. Morales, as in fact the latter immediately filed an administrative case against the
persons who conducted the spot investigation, questioning the validity of the
investigation and specifically invoking his constitutional right against unreasonable
search and seizure. And as there is no other evidence, apart from the pleadings,
retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him
administratively liable, the Court had no choice but to dismiss the charges against him
for insufficiency of evidence.
The above case is to be distinguished from the case at bar because, unlike the former
which involved a personal computer of a court employee, the computer from which
the personal files of herein petitioner were retrieved is a government-issued
computer, hence government property the use of which the CSC has absolute right to
regulate and monitor. Such relationship of the petitioner with the item seized (office
computer) and other relevant factors and circumstances under American Fourth
Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on
Computer Use Policy, failed to establish that petitioner had a reasonable expectation
of privacy in the office computer assigned to him.
Having determined that the personal files copied from the office computer of petitioner
are admissible in the administrative case against him, we now proceed to the issue of
whether the CSC was correct in finding the petitioner guilty of the charges and
dismissing him from the service.
Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the
CSC, are accorded not only respect but even finality if such findings are supported by
substantial evidence. Substantial evidence is such amount of relevant evidence which
a reasonable mind might accept as adequate to support a conclusion, even if other
equally reasonable minds might conceivably opine otherwise. 55
The CSC based its findings on evidence consisting of a substantial number of drafts
of legal pleadings and documents stored in his office computer, as well as the sworn
affidavits and testimonies of the witnesses it presented during the formal
investigation. According to the CSC, these documents were confirmed to be similar or
exactly the same content-wise with those on the case records of some cases pending
either with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also
substantially similar copies of those pleadings filed with the CA and duly furnished the
Commission. Further, the CSC found the explanation given by petitioner, to the effect
that those files retrieved from his computer hard drive actually belonged to his lawyer
friends Estrellado and Solosa whom he allowed the use of his computer for drafting
their pleadings in the cases they handle, as implausible and doubtful under the
circumstances. We hold that the CSC's factual finding regarding the authorship of the
subject pleadings and misuse of the office computer is well-supported by the
evidence on record, thus:
It is also striking to note that some of these documents were in the nature of
pleadings responding to the orders, decisions or resolutions of these offices or
directly in opposition to them such as a petition for certiorari or a motion for
reconsideration of CSC Resolution. This indicates that the author thereof knowingly
and willingly participated in the promotion or advancement of the interests of parties
contrary or antagonistic to the Commission. Worse, the appearance in one of the
retrieved documents the phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo,"
lends plausibility to an inference that the preparation or drafting of the legal pleadings
was pursued with less than a laudable motivation. Whoever was responsible for these
documents was simply doing the same for the money a "legal mercenary" selling
or purveying his expertise to the highest bidder, so to speak.
Inevitably, the fact that these documents were retrieved from the computer of Pollo
raises the presumption that he was the author thereof. This is because he had a
control of the said computer. More significantly, one of the witnesses, Margarita
Reyes, categorically testified seeing a written copy of one of the pleadings found in
the case records lying on the table of the respondent. This was the Petition for
Review in the case of Estrellado addressed to the Court of Appeals. The said
circumstances indubitably demonstrate that Pollo was secretly undermining the
interest of the Commission, his very own employer.
To deflect any culpability, Pollo would, however, want the Commission to believe that
the documents were the personal files of some of his friends, including one Attorney
Ponciano Solosa, who incidentally served as his counsel of record during the formal
investigation of this case. In fact, Atty. Solosa himself executed a sworn affidavit to
this effect. Unfortunately, this contention of the respondent was directly rebutted by
the prosecution witness, Reyes, who testified that during her entire stay in the PALD,
she never saw Atty. Solosa using the computer assigned to the respondent. Reyes
more particularly stated that she worked in close proximity with Pollo and would have
known if Atty. Solosa, whom she personally knows, was using the computer in
question. Further, Atty. Solosa himself was never presented during the formal
investigation to confirm his sworn statement such that the same constitutes self-
serving evidence unworthy of weight and credence. The same is true with the other
supporting affidavits, which Pollo submitted.
At any rate, even admitting for a moment the said contention of the respondent, it
evinces the fact that he was unlawfully authorizing private persons to use the
computer assigned to him for official purpose, not only once but several times
gauging by the number of pleadings, for ends not in conformity with the interests of
the Commission. He was, in effect, acting as a principal by indispensable cooperation
. . . Or at the very least, he should be responsible for serious misconduct for
repeatedly allowing CSC resources, that is, the computer and the electricity, to be
utilized for purposes other than what they were officially intended.
Further, the Commission cannot lend credence to the posturing of the appellant that
the line appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang
bayad mo," was a private joke between the person alluded to therein, Eric N.
Estrellado, and his counsel, Atty. Solosa, and not indicative of anything more sinister.
The same is too preposterous to be believed. Why would such a statement appear in
a legal pleading stored in the computer assigned to the respondent, unless he had
something to do with it? 56
Petitioner assails the CA in not ruling that the CSC should not have entertained an
anonymous complaint since Section 8 of CSC Resolution No. 99-1936 (URACC)
requires a verified complaint:
Rule II Disciplinary Cases
SEC. 8. Complaint. A complaint against a civil service official or employee shall not
be given due course unless it is in writing and subscribed and sworn to by the
complainant. However, in cases initiated by the proper disciplining authority, the
complaint need not be under oath.
No anonymous complaint shall be entertained unless there is obvious truth or merit to
the allegation therein or supported by documentary or direct evidence, in which case
the person complained of may be required to comment.
We need not belabor this point raised by petitioner. The administrative complaint is
deemed to have been initiated by the CSC itself when Chairperson David, after a spot
inspection and search of the files stored in the hard drive of computers in the two
divisions adverted to in the anonymous letter as part of the disciplining authority's
own fact-finding investigation and information-gathering found a prima facie case
against the petitioner who was then directed to file his comment. As this Court held in
Civil Service Commission v. Court of Appeals 57
Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and
Section 8, Rule II of Uniform Rules on Administrative Cases in the Civil Service, a
complaint may be initiated against a civil service officer or employee by the
appropriate disciplining authority, even without being subscribed and sworn to.
Considering that the CSC, as the disciplining authority for Dumlao, filed the complaint,
jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)
As to petitioner's challenge on the validity of CSC OM 10, S. 2002 (CUP), the same
deserves scant consideration. The alleged infirmity due to the said memorandum
order having been issued solely by the CSC Chair and not the Commission as a
collegial body, upon which the dissent of Commissioner Buenaflor is partly anchored,
was already explained by Chairperson David in her Reply to the Addendum to
Commissioner Buenaflor's previous memo expressing his dissent to the actions and
disposition of the Commission in this case. According to Chairperson David, said
memorandum order was in fact exhaustively discussed, provision by provision in the
January 23, 2002 Commission Meeting, attended by her and former Commissioners
Erestain, Jr. and Valmores. Hence, the Commission En Banc at the time saw no need
to issue a Resolution for the purpose and further because the CUP being for internal
use of the Commission, the practice had been to issue a memorandum order. 58
Moreover, being an administrative rule that is merely internal in nature, or which
regulates only the personnel of the CSC and not the public, the CUP need not be
published prior to its effectivity. 59
In fine, no error or grave abuse of discretion was committed by the CA in affirming the
CSC's ruling that petitioner is guilty of grave misconduct, dishonesty, conduct
prejudicial to the best interest of the service, and violation of R.A. No. 6713. The
gravity of these offenses justified the imposition on petitioner of the ultimate penalty of
dismissal with all its accessory penalties, pursuant to existing rules and regulations.
WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated
October 11, 2007 and Resolution dated February 29, 2008 of the Court of Appeals in
CA-G.R. SP No. 98224 are AFFIRMED.
With costs against the petitioner.
SO ORDERED.