1.) G.R. No.
L-38429 June 30, 1988
CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU CARCEL, petitioners-
appellants,
vs.
COURT OF FIRST INSTANCE OF AGUSAN DEL NORTE AND BUTUAN CITY, Branch
11, and the CITY OF BUTUAN, respondents-appellees.
Romeo B. Sanchez, Eduardo Deza Mercado and Wilfred D. Asis for petitioners.
The City Legal Officer for respondents-appeliees.
GANCAYCO, J.:
At issue in the petition for review before Us is the validity and constitutionality
of Ordinance No. 640 passed by the Municipal Board of the City of Butuan on
April 21, 1969, the title and text of which are reproduced below:
ORDINANCE--640
ORDINANCE PENALIZING ANY PERSON, GROUP OF PERSONS,
ENTITY OR CORPORATION ENGAGED IN THE BUSINESS OF
SELLING ADMISSION TICKETS TO ANY MOVIE OR OTHER
PUBLIC EXHIBITIONS, GAMES, CONTESTS OR OTHER
PERFORMANCES TO REQUIRE CHILDREN BETWEEN SEVEN (7)
AND TWELVE (12) YEARS OF AGE TO PAY FULL PAYMENT FOR
TICKETS INTENDED FOR ADULTS BUT SHOULD CHARGE ONLY
ONE-HALF OF THE SAID TICKET
xxx xxx xxx
1
Be it ordained by the Municipal Board of the City of Butuan in
session assembled, that:
SECTION 1—It shall be unlawful for any person, group of
persons, entity, or corporation engaged in the business of
selling admission tickets to any movie or other public
exhibitions, games, contests, or other performances to
require children between seven (7) and twelve (12) years of
age to pay full payment for admission tickets intended for
adults but should charge only one-half of the value of the said
tickets.
SECTION 2—Any person violating the provisions of this
Ordinance shall upon conviction be punished by a fine of not
less than TWO HUNDRED PESOS (P200.00) but not more than
SIX HUNDRED PESOS (P600.00) or an imprisonment of not less
than TWO (2) MONTHS or not more than SIX (6) MONTHS or
both such firm and imprisonment in the discretion of the
Court.
If the violator be a firm or corporation the penalty shall be
imposed upon the Manager, Agent or Representative of such
firm or corporation.
SECTION 3—This ordinance shall take effect upon its approval.
Petitioners are Carlos Balacuit Lamberto Tan, and Sergio Yu Carcel managers of
the Maya and Dalisay Theaters, the Crown Theater, and the Diamond Theater,
respectively. Aggrieved by the effect of Ordinance No. 640, they filed a
complaint before the Court of First Instance of Agusan del Norte and Butuan
City docketed as Special Civil Case No. 237 on June 30, 1969 praying, inter alia,
that the subject ordinance be declared unconstitutional and, therefore, void
and unenforceable. 1
Upon motion of the petitioners, 2 a temporary restraining order was issued on
July 14, 1969 by the court a quo enjoining the respondent City of Butuan and
its officials from enforcing Ordinance No. 640. 3 On July 29, 1969, respondents
filed their answer sustaining the validity of the ordinance.4
On January 30, 1973, the litigants filed their stipulation of facts. 5 On June 4,
1973, the respondent court rendered its decision, 6 the dispositive part of which
reads:
IN THE LIGHT OF ALL THE FOREGOING, the Court hereby
adjudges in favor of the respondents and against the
petitioners, as follows:
1. Declaring Ordinance No. 640 of the City of Butuan
constitutional and valid: Provided, however, that the fine for a
single offense shall not exceed TWO HUNDRED PESOS, as
prescribed in the aforequoted Section 15 (nn) of Rep. Act No.
523;
2. Dissolving the restraining order issued by this Court; and;
3. Dismissing the complaint, with costs against the petitioners.
4. SO ORDERED. 7
Petitioners filed their motion for reconsideration 8 of the decision of the court
a quo which was denied in a resolution of the said court dated November 10,
1973.9
Hence, this petition.
Petitioners attack the validity and constitutionality of Ordinance No. 640 on the
grounds that it is ultra vires and an invalid exercise of police power.
2
Petitioners contend that Ordinance No. 640 is not within the power of' the
Municipal Board to enact as provided for in Section 15(n) of Republic Act No.
523, the Charter of the City of Butuan, which states:
Sec. 15. General powers and duties of the Board — Except as
otherwise provided by law, and subject to the conditions and
limitations thereof, the Municipal Board shall have the
following legislative powers:
xxx xxx xxx
(n) To regulate and fix the amount of the license fees for the
following; . . . theaters, theatrical performances,
cinematographs, public exhibitions and all other
performances and places of amusements ...
xxx xxx xxx
Respondent City of Butuan, on the other hand, attempts to justify the
enactment of the ordinance by invoking the general welfare clause embodied
in Section 15 (nn) of the cited law, which provides:
(nn) To enact all ordinances it may deem necessary and proper
for the sanitation and safety, the furtherance of the
prosperity, and the promotion of the morality, peace, good
order, comfort, convenience, and general welfare of the city
and its inhabitants, and such others as may be necessary to
carry into effect and discharge the powers and duties
conferred by this Act, and to fix the penalties for the violation
of the ordinances, which shall not exceed a two hundred peso
fine or six months imprisonment, or both such fine and
imprisonment, for a single offense.
We can see from the aforecited Section 15(n) that the power to regulate and
fix the amount of license fees for theaters, theatrical performances,
cinematographs, public exhibitions and other places of amusement has been
expressly granted to the City of Butuan under its charter. But the question
which needs to be resolved is this: does this power to regulate include the
authority to interfere in the fixing of prices of admission to these places of
exhibition and amusement whether under its general grant of power or under
the general welfare clause as invoked by the City?
This is the first time this Court is confronted with the question of direct
interference by the local government with the operation of theaters,
cinematographs and the like to the extent of fixing the prices of admission to
these places. Previous decisions of this Court involved the power to impose
license fees upon businesses of this nature as a corollary to the power of the
local government to regulate them. Ordinances which required moviehouses
or theaters to increase the price of their admission tickets supposedly to cover
the license fees have been held to be invalid for these impositions were
considered as not merely license fees but taxes for purposes of revenue and
not regulation which the cities have no power to exact, 10 unless expressly
granted by its charter. 11
Applying the ruling in Kwong Sing v. City of Manila, 12 where the word "regulate"
was interpreted to include the power to control, to govern and to restrain, it
would seem that under its power to regulate places of exhibitions and
amusement, the Municipal Board of the City of Butuan could make proper
police regulations as to the mode in which the business shall be exercised.
While in a New York case, 13 an ordinance which regulates the business of selling
admission tickets to public exhibitions or performances by virtue of the power
of cities under the General City Law "to maintain order, enforce the laws,
protect property and preserve and care for the safety, health, comfort and
general welfare of the inhabitants of the city and visitors thereto; and for any
of said purposes, to regulate and license occupations" was considered not to
be within the scope of any duty or power implied in the charter. It was held
3
therein that the power of regulation of public exhibitions and places of
amusement within the city granted by the charter does not carry with it any
authority to interfere with the price of admission to such places or the resale of
tickets or tokens of admission.
In this jurisdiction, it is already settled that the operation of theaters,
cinematographs and other places of public exhibition are subject to regulation
by the municipal council in the exercise of delegated police power by the local
government. 14 Thus, in People v. Chan, 15 an ordinance of the City of Manila
prohibiting first run cinematographs from selling tickets beyond their seating
capacity was upheld as constitutional for being a valid exercise of police power.
Still in another case, 16 the validity of an ordinance of the City of Bacolod
prohibiting admission of two or more persons in moviehouses and other
amusement places with the use of only one ticket was sustained as a valid
regulatory police measure not only in the interest of preventing fraud in so far
as municipal taxes are concerned but also in accordance with public health,
public safety, and the general welfare.
The City of Butuan, apparently realizing that it has no authority to enact the
ordinance in question under its power to regulate embodied in Section 15(n),
now invokes the police power as delegated to it under the general welfare
clause to justify the enactment of said ordinance.
To invoke the exercise of police power, not only must it appear that the interest
of the public generally requires an interference with private rights, but the
means adopted must be reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals. 17 The legislature may not,
under the guise of protecting the public interest, arbitrarily interfere with
private business, or impose unusual and unnecessary restrictions upon lawful
occupations. In other words, the determination as to what is a proper exercise
of its police power is not final or conclusive, but is subject to the supervision of
the courts. 18
Petitioners maintain that Ordinance No. 640 violates the due process clause of
the Constitution for being oppressive, unfair, unjust, confiscatory, and an undue
restraint of trade, and violative of the right of persons to enter into contracts,
considering that the theater owners are bound under a contract with the film
owners for just admission prices for general admission, balcony and lodge.
In Homeowners' Association of the Philippines, Inc. v. Municipal Board of the
City of Manila, 19 this Court held:
The authority of municipal corporations to regulate is
essentially police power, Inasmuch as the same generally
entails a curtailment of the liberty, the rights and/or the
property of persons, which are protected and even
guaranteed by the Constitution, the exercise of police power
is necessarily subject to a qualification, limitation or restriction
demanded by the regard, the respect and the obedience due
to the prescriptions of the fundamental law, particularly those
forming part of the Constitution of Liberty, otherwise known
as the Bill of Rights — the police power measure must be
reasonable. In other words, individual rights may be adversely
affected by the exercise of police power to the extent only —
and only to the extent--that may be fairly required by the
legitimate demands of public interest or public welfare.
What is the reason behind the enactment of Ordinance No. 640?
A reading of the minutes of the regular session of the Municipal Board when
the ordinance in question was passed shows that a certain Councilor Calo, the
proponent of the measure, had taken into account the complaints of parents
that for them to pay the full price of admission for their children is too
financially burdensome.
The trial court advances the view that "even if the subject ordinance does not
spell out its raison d'etre in all probability the respondents were impelled by the
4
awareness that children are entitled to share in the joys of their elders, but that
considering that, apart from size, children between the ages of seven and
twelve cannot fully grasp the nuance of movies or other public exhibitions,
games, contests or other performances, the admission prices with respect to
them ought to be reduced. 19a
We must bear in mind that there must be public necessity which demands the
adoption of proper measures to secure the ends sought to be attained by the
enactment of the ordinance, and the large discretion is necessarily vested in
the legislative authority to determine not only what the interests of the public
require, but what measures are necessary for the protection of such
interests. 20 The methods or means used to protect the public health, morals,
safety or welfare, must have some relation to the end in view, for under the
guise of the police power, personal rights and those pertaining to private
property will not be permitted to be arbitralily invaded by the legislative
department. 21
We agree with petitioners that the ordinance is not justified by any necessity
for the public interest. The police power legislation must be firmly grounded on
public interest and welfare, and a reasonable relation must exist between
purposes and means.22 The evident purpose of the ordinance is to help ease
the burden of cost on the part of parents who have to shell out the same
amount of money for the admission of their children, as they would for
themselves, A reduction in the price of admission would mean corresponding
savings for the parents; however, the petitioners are the ones made to bear the
cost of these savings. The ordinance does not only make the petitioners suffer
the loss of earnings but it likewise penalizes them for failure to comply with it.
Furthermore, as petitioners point out, there will be difficulty in its
implementation because as already experienced by petitioners since the
effectivity of the ordinance, children over 12 years of age tried to pass off their
age as below 12 years in order to avail of the benefit of the ordinance. The
ordinance does not provide a safeguard against this undesirable practice and
as such, the respondent City of Butuan now suggests that birth certificates be
exhibited by movie house patrons to prove the age of children. This is, however,
not at all practicable. We can see that the ordinance is clearly unreasonable if
not unduly oppressive upon the business of petitioners. Moreover, there is no
discernible relation between the ordinance and the promotion of public health,
safety, morals and the general welfare.
Respondent City of Butuan claims that it was impelled to protect the youth from
the pernicious practice of movie operators and other public exhibitions
promoters or the like of demanding equal price for their admission tickets along
with the adults. This practice is allegedly repugnant and unconscionable to the
interest of the City in the furtherance of the prosperity, peace, good order,
comfort, convenience and the general well-being of its inhabitants.
There is nothing pernicious in demanding equal price for both children and
adults. The petitioners are merely conducting their legitimate businesses. The
object of every business entrepreneur is to make a profit out of his venture.
There is nothing immoral or injurious in charging the same price for both
children and adults. In fact, no person is under compulsion to purchase a ticket.
It is a totally voluntary act on the part of the purchaser if he buys a ticket to
such performances.
Respondent City of Butuan claims that Ordinance No. 640 is reasonable and
necessary to lessen the economic burden of parents whose minor children are
lured by the attractive nuisance being maintained by the petitioners.
Respondent further alleges that by charging the full price, the children are being
exploited by movie house operators. We fail to see how the children are
exploited if they pay the full price of admission. They are treated with the same
quality of entertainment as the adults. The supposition of the trial court that
because of their age children cannot fully grasp the nuances of such
entertainment as adults do fails to convince Us that the reduction in admission
ticket price is justifiable. In fact, by the very claim of respondent that movies
and the like are attractive nuisances, it is difficult to comprehend why the
municipal board passed the subject ordinance. How can the municipal
authorities consider the movies an attractive nuisance and yet encourage
parents and children to patronize them by lowering the price of admission for
children? Perhaps, there is some ,truth to the argument of petitioners that
5
Ordinance No. 640 is detrimental to the public good and the general welfare of
society for it encourages children of tender age to frequent the movies, rather
than attend to their studies in school or be in their homes.
Moreover, as a logical consequence of the ordinance, movie house and theater
operators will be discouraged from exhibiting wholesome movies for general
patronage, much less children's pictures if only to avoid compliance with the
ordinance and still earn profits for themselves. For after all, these movie house
and theater operators cannot be compelled to exhibit any particular kind of film
except those films which may be dictated by public demand and those which
are restricted by censorship laws. So instead of children being able to share in
the joys of their elders as envisioned by the trial court, there will be a dearth of
wholesome and educational movies for them to enjoy.
There are a number of cases decided by the Supreme Court and the various
state courts of the United States which upheld the right of the proprietor of a
theater to fix the price of an admission ticket as against the right of the state to
interfere in this regard and which We consider applicable to the case at bar.
A theater ticket has been described to be either a mere license, revocable at
the will of the proprietor of the theater or it may be evidence of a contract
whereby, for a valuable consideration, the purchaser has acquired the right to
enter the theater and observe the performance on condition that he behaves
properly. 23 Such ticket, therefore, represents a right, Positive or conditional, as
the case may be, according to the terms of the original contract of sale. This
right is clearly a right of property. The ticket which represents that right is also,
necessarily, a species of property. As such, the owner thereof, in the absence
of any condition to the contrary in the contract by which he obtained it, has the
clear right to dispose of it, to sell it to whom he pleases and at such price as he
can obtain. 24 So that an act prohibiting the sale of tickets to theaters or other
places of amusement at more than the regular price was held invalid as
conflicting with the state constitution securing the right of property. 25
In Collister vs. Hayman, 26 it was held:
 The defendants were conducting a private business, which,
even if clothed with a public interest, was without a franchise
to accommodate the public, and they had the right to control
it, the same as the proprietors of any other business, subject
to such obligations as were placed upon them by statute.
Unlike a carrier of passengers, for instance, with a franchise
from the state, and hence under obligation to transport
anyone who applies and to continue the business year in and
year out, the proprietors of a theater can open and close their
place at will, and no one can make a lawful complaint. They
can charge what they choose for admission to their theater.
They can limit the number admitted. They can refuse to sell
tickets and collect the price of admission at the door. They can
preserve order and enforce quiet while the performance is
going on. They can make it a part of the contract and condition
of admission, by giving due notice and printing the condition
in the ticket that no one shall be admitted under 21 years of
age, or that men only or women only shall be admitted, or that
a woman cannot enter unless she is accompanied by a male
escort, and the like. The proprietors, in the control of their
business, may regulate the terms of admission in any
reasonable way. If those terms are not satisfactory, no one is
obliged to buy a ticket or make the contract. If the terms are
satisfactory, and the contract is made, the minds of the parties
meet upon the condition, and the purchaser impliedly
promises to perform it.
In Tyson and Bro. — United Theater Ticket Officers, Inc. vs. Banton, 27 the United
States Supreme Court held:
... And certainly a place of entertainment is in no legal sense a
public utility; and quite as certainly, its activities are not such
that their enjoyment can be regarded under any conditions
from the point of view of an emergency.
6
The interest of the public in theaters and other places of
entertainment may be more nearly, and with better reason,
assimilated to the like interest in provision stores and markets
and in the rental of houses and apartments for residence
purposes; although in importance it fails below such an
interest in the proportion that food and shelter are of more
moment than amusement or instruction. As we have shown
there is no legislative power to fix the prices of provisions or
clothing, or the rental charges for houses and apartments, in
the absence of some controlling emergency; and we are
unable to perceive any dissimilarities of such quality or degree
as to justify a different rule in respect of amusements and
entertainment ...
We are in consonance with the foregoing observations and conclusions of
American courts. In this jurisdiction, legislation had been passed controlling the
prices of goods commodities and drugs during periods of emergency, 28limiting
the net profits of public utility 29 as well as regulating rentals of residential
apartments for a limited period, 30as a matter of national policy in the interest
of public health and safety, economic security and the general welfare of the
people. And these laws cannot be impugned as unconstitutional for being
violative of the due process clause.
However, the same could not be said of theaters, cinematographs and other
exhibitions. In no sense could these businesses be considered public utilities.
The State has not found it appropriate as a national policy to interfere with the
admission prices to these performances. This does not mean however, that
theaters and exhibitions are not affected with public interest even to a certain
degree. Motion pictures have been considered important both as a medium for
the communication of Ideas and expression of the artistic impulse. Their effects
on the perceptions by our people of issues and public officials or public figures
as well as the prevailing cultural traits are considerable. 31People of all ages flock
to movie houses, games and other public exhibitions for recreation and
relaxation. The government realizing their importance has seen it fit to enact
censorship laws to regulate the movie industry. 32 Their aesthetic
entertainment and even educational values cannot be underestimated. Even reasonable, from the foregoing considerations, it has been fully shown that it is
police measures regulating the operation of these businesses have been upheld an unwarranted and unlawful curtailment of the property and personal rights
in order to safeguard public health and safety. of citizens. For being unreasonable and an undue restraint of trade, it cannot,
under the guise of exercising police power, be upheld as valid.
Nonetheless, as to the question of the subject ordinance being a valid exercise
of police power, the same must be resolved in the negative. While it is true that WHEREFORE, the decision of the trial court in Special Civil Case No. 237 is
a business may be regulated, it is equally true that such regulation must be hereby REVERSED and SET ASIDE and a new judgment is hereby rendered
within the bounds of reason, that is, the regulatory ordinance must be declaring Ordinance No. 640 unconstitutional and, therefore, null and void. This
reasonable, and its provisions cannot be oppressive amounting to an arbitrary decision is immediately executory.
interference with the business or calling subject of regulation. A lawful business
or calling may not, under the guise of regulation, be unreasonably interfered SO ORDERED.
with even by the exercise of police power.33 A police measure for the regulation
of the conduct, control and operation of a business should not encroach upon Yap, C.J., Narvasa, Cruz, Paras, Padilla, Bidin, Sarmiento and Griño-Aquino, JJ.,
the legitimate and lawful exercise by the citizens of their property rights.34 The concur.
right of the owner to fix a price at which his property shall be sold or used is an
inherent attribute of the property itself and, as such, within the protection of Separate Opinions
the due process clause."" Hence, the proprietors of a theater have a right to
manage their property in their own way, to fix what prices of admission they GUTIERREZ, JR., J., Separate opinion
think most for their own advantage, and that any person who did not approve
could stay away. 36
The issue before the Court is a simple one. Does Butuan City have the power to
compel theatre owners to charge only half fares for children below twelve even
Respondent City of Butuan argues that the presumption is always in favor of as they charge all other moviegoers full prices for admission into moviehouses?
the validity of the ordinance. This maybe the rule but it has already been held
that although the presumption is always in favor of the validity or
Instead of nullifying the municipal ordinance through a broad and sweeping
reasonableness of the ordinance, such presumption must nevertheless be set
justification of property rights, I believe, however, that we should do so on
aside when the invalidity or unreasonableness appears on the face of the
a more limited ground directly bearing on the issue.
ordinance itself or is established by proper evidence.37 The exercise of police
power by the local government is valid unless it contravenes the fundamental
I find no rational basis for classifying children as a distinct group insofar as
law of the land, or an act of the legislature, or unless it is against public policy
paying for admission into a moviehouse is concerned. There is absolutely no
or is unreasonable, oppressive, partial, discriminating or in derogation of a
pretense that the municipal ordinance is intended to protect children, enhance
common right.38
their morals, promote their health, safeguard their safety, improve their
education, or otherwise promote the general welfare. In fact, the effect of the
Ordinance No. 640 clearly invades the personal and property rights of
ordinance may be the opposite.
petitioners for even if We could assume that, on its face, the interference was

7
With the price of movie tickets suddenly within the reach of many children, they
may neglect their studies or use money intended for food or school supplies to
enter moviehouses. Movie owners who are compelled to accept half prices for
a newly increased group of young patrons will be tempted to allow them to
enter moviehouses indiscriminately, including those where scenes of violence,
crime, or even sex are portrayed. Addiction of the young to movie going is
definitely injurious to their health.
The avowed purpose of the ordinance--to ease the burden of costs for parents
who have to shell out the same amount of money for the admission of their
children as they would for themselves — is not covered by police power. If the
city cannot compel refreshment parlors to charge half-prices for hamburgers,
soft drinks, pizzas, or cakes consumed by children by what authority can it
impose the obligation of similarly easing parents' burdens upon the owners of
moviehouses?
As discussed by the minority opinion, the legislature may not., under the guise
of protecting the public interest, arbitrarily interfere with private business, or
impose unusual and unnecessary restrictions upon lawful occupations. The
imposition enacted by the municipal board of Butuan City has not been justified
by its proponents as a restriction necessary for public health or public welfare.
No reasonable relationship has been shown between a valid purpose and the
proper means to accomplish it.
I hesitate, however, to make a brief for owners of theatres and expound
a laissez faire approach insofar as their businesses are concerned. Movie
houses may not be public utilities but as places of entertainment affected with
a certain degree of public interest, they are subject to reasonable regulation.
That regulation is stronger and more restrictive than that of regular or ordinary
businesses.
The following citation for instance, is pure obiter insofar as half-prices for
minors are concerned:
8
... [T]he proprietors of a theater can open and close their place
at will, and no one can make lawful complaint. They can
charge what they choose for admission to their theater. They
can limit the number admitted. They can refuse to sell tickets
and collect the price of admission at the door. They can
preserve order and enforce quiet while the performance is
going on. They can make it a part of the contract and a
condition of admission, by giving due notice and printing the
condition in the ticket that no one shall be admitted under 21
years of age, or that men only or women only shall be
admitted, or that a woman cannot enter unless she is
accompanied by a male escort, and the like. The proprietors,
in the control of their business, may regulate the terms of
admission in any reasonable way. If those terms are not
satisfactory, no one is obliged to buy a ticket or make the
contract. If the terms are satisfactory, and the contract is
made, the minds of the parties meet upon the condition, and
the purchaser impliedly promises to perform it. (Collister v.
Hayman, 76 N.E. 20,183 N.Y. 250, 253, 1 L.R.A. [N.S.] 1188, 11
Am. St. Rep. 740, An Cas. 344).
I see no reason at this time why we should pass upon situations that are not
before us or warn municipal governments beforehand to avoid enacting certain
regulations when nobody knows exactly what circumstances may call for those
regulations.
For instance,
A theater ticket has been described to be either a mere
license, revocable at the will of the proprietor of the theater
or it may be evidence of a contract whereby, for a valuable
consideration, the purchaser has acquired the right to enter
the theater and observe the performance on condition that he
behaves properly (Law of the State.
Screen and Radio by Marchetti, 1939, ec., page 268). Such
ticket, therefore, represents a right, positive or conditional, as
the case may be, according to the terms of the original
contract of sale. This right is clearly a right of property. The
ticket which represents that right is also, necessarily, a species
of property. As such, the owner thereof, in the absence of any
condition to the contrary y in the contract by which he
obtained it, has the clear right to dispose of it, to sell it to
whom he pleases and at such price as he can obtain Ibids,
citing Ex-parte Quarg, 84 Pac., 766,149 Cal. 79, 80, 5 L.R.A.
[N.S], 183, 117 Am. St. Rep. 11 5, 9 Ann. Ca. 747; Also People
v. Steele, 231, III. 340, 344, 14 R.A. [N.S.] 361, 121 Am. St. Rep.
321, 83 N.E. 236). ....
xxx xxx xxx
.... A lawful business or calling may not, under the guise of
regulation, be unreasonably interfered with even by the
exercise of police power. (Ogden City v. Leo, 54 Utah 556, 182
P. 530) A police measure for the regulation of the conduct,
control and operation of a business should not encroach upon
the legitimate and lawful exercise by the citizens of their
property rights (Pampanga Bus Co., Inc. v. Municipality of
Tarlac, 3 SCRA 816). The right of the owner to fix a price at
which his property shall be sold or used is an inherent
attribute of the property itself and, as such, within the
protection of the due process clause (Tyson and Bro.--United
Theater Ticket Officers, Inc. v. Banton, supra). Hence the
proprietors of a theater have a right to manage their property
in their own way, to fix what prices of admission they think
most for their own advantage, and that ally person who did
not approve could stay away (Ibid, citing v. Clifford v. Brandon,
2 Campb. 358, 368.).
9
may be interpreted as carte blanche for movie owners to practically ignore
municipal regulation and do as they please.
More appropriate to my maid is to state that while tile Butuan City ordinance is
invalid, it does not necessarily follow that all forms of regulation are proscribed.
We have ruled in People v. Chan (65 Phil. 612):
In the first place, it must be noted that there can be no doubt
that the City of Manila exercises police power, by delegation
and that in the exercise of that power it is authorized to enact
ordinances for, the regulation of the operation of theatres and
cinematographs (sec. 2444(m) and (ee) of the Revised
Administrative Code: U.S. v. Gomez Jesus, 31 Phil. 218; U.S. v.
Pompeya, 31 Phil. 245).
On April 17, 1935, Ordinance No. 2347 was approved. In
section 1 it provides that all first run theatres or
cinematographs should register their seating capacity with the
City Treasurer, and in section 1 it prohibits the sale of tickets
in said theatres or cinematographs in excess of their
registered seating capacity.
Before the approval of Ordinance No. 2347, Ordinance No.
2188, approved on July 22, 1933, was in force, section 1 of
which divides cinematographs into three different classes:
first, second and third. The first class includes those located
on certain and specified streets like Rosario, Escolta, etc.,
which exhibit films for the first time; those belonging to the
second class are those which, not being located on said
streets, also exhibit films for the first time, and those which,
being located on said streets, regularly show films for the
second time or which have the exclusive right to show
 secondhand films; and the third class comprehends all those
which are not included in the first and second classes.
xxx xxx xxx
To the foregoing must be added, and this is of common
knowledge, that the films which are shown for the first time
attract a large attendance, and the theatre or cinematograph,
whether it is first or second class, presenting shows for the
first time, would be suffocatingly overcrowded if the number
of tickets were not limited. This is the reason for the
prohibition of the sale of tickets in excess of the seating
capacity. The prohibition applies with equal force wherever
the same reason exists, that is, to first and second class
theatres which show films for the first time. (at pp. 612- 613)
There being a rational basis for the restriction of sales of tickets beyond seating
capacity, the ordinance is perfectly valid.
The same is true for the situation found in Samson v. Mayor of Bacolod City (60
SCRA 274):
When it is further remembered that insofar as movie houses
and other places of amusement are concerned. (According to
Section 17[1] of the City Charter of Bacolod, Commonwealth
Act No. 326 119381: 'To regulate and fix the amount of the
fees for the following: ... theatres, theatrical performances,
cinematographs, public exhibitions, circuses and all other
performances and places of amusements ....") the least doubt
cannot be entertained as to the validity of a measure
prohibiting a proprietor, lessee or operator of an amusement
place to admit two or more persons with only one admission
ticket, not only in the interest of preventing fraud insofar as
municipal taxes are concerned but also in accordance with
10
public health, public safety and the general welfare. (Cf.
People v. Chan, 65 Phil. 611 [1938]). An American Supreme
Court decision, Western Turf Association v. Greenberg, (204
US 359 [1907] the opinion being penned by Justice Harlan is
equally illuminating: 'The statute is only a regulation of places
of public entertainment and amusement upon terms of equal
and exact justice to everyone holding a ticket of admission,
and who is not, at the time, under the influence of liquor, or
boisterous in conduct, or of lewd and immoral character. ....
Such a regulation, in itself just, is likewise promotive of peace
and good order among those who attend places of public
entertainment and amusement. It is neither an arbitrary
exertion of the state's inherent or governmental power, nor a
violation of any right secured by the constitution of the United
States. (at pp. 363-364).
The City of Butuan tries to justify the challenged ordinance by invoking police
power. The invocation is improper. The definitions of police power, including
its exercise based on the general welfare clause, are emphasized to show that
the respondents' arguments have no merit —
Police power is inherent in the State but not in municipal
corporations. For a municipal corporation to exercise police
power, there must be a legislative grant which necessarily also
sets the limits for the exercise of the power.
In the Philippines, the grant of authority to the municipality to
exercise police power is embodied in Section 2238 of the
Revised Administrative Code, otherwise known as the General
Welfare Clause. Chartered cities are granted similar authority
in their respective charters
The general welfare clause has two branches. The first
authorizes the municipal council to enact such ordinances and
 make such regulations not repugnant to law, as may be
necessary to carry into effect and discharge the powers and
duties conferred upon the municipal council by law. The
second branch authorizes the municipality to enact such
ordinances as may be necessary and proper for the health and
safety, promote the prosperity, improve the morals, peace,
good order, comfort, and convenience of the municipality and
inhabitants thereof, and for the protection of property
therein. (U.S. v. Salaveria 39 Phil. 103).
This Court has generally been liberal in sustaining municipal action based on the
general welfare clause. In the case before us, however, there appears to be no
basis for sustaining the ordinance even on a generous interpretation of the
general welfare clause.
Separate Opinions
GUTIERREZ, JR., J., Separate opinion
The issue before the Court is a simple one. Does Butuan City have the power to
compel theatre owners to charge only half fares for children below twelve even
as they charge all other moviegoers full prices for admission into moviehouses?
Instead of nullifying the municipal ordinance through a broad and sweeping
justification of property rights, I believe, however, that we should do so on
a more limited ground directly bearing on the issue.
I find no rational basis for classifying children as a distinct group insofar as
paying for admission into a moviehouse is concerned. There is absolutely no
pretense that the municipal ordinance is intended to protect children, enhance
their morals, promote their health, safeguard their safety, improve their
11
education, or otherwise promote the general welfare. In fact, the effect of the
ordinance may be the opposite.
With the price of movie tickets suddenly within the reach of many children, they
may neglect their studies or use money intended for food or school supplies to
enter moviehouses. Movie owners who are compelled to accept half prices for
a newly increased group of young patrons will be tempted to allow them to
enter moviehouses indiscriminately, including those where scenes of violence,
crime, or even sex are portrayed. Addiction of the young to movie going is
definitely injurious to their health.
The avowed purpose of the ordinance--to ease the burden of costs for parents
who have to shell out the same amount of money for the admission of their
children as they would for themselves — is not covered by police power. If the
city cannot compel refreshment parlors to charge half-prices for hamburgers,
soft drinks, pizzas, or cakes consumed by children by what authority can it
impose the obligation of similarly easing parents' burdens upon the owners of
moviehouses?
As discussed by the minority opinion, the legislature may not., under the guise
of protecting the public interest, arbitrarily interfere with private business, or
impose unusual and unnecessary restrictions upon lawful occupations. The
imposition enacted by the municipal board of Butuan City has not been justified
by its proponents as a restriction necessary for public health or public welfare.
No reasonable relationship has been shown between a valid purpose and the
proper means to accomplish it.
I hesitate, however, to make a brief for owners of theatres and expound
a laissez faire approach insofar as their businesses are concerned. Movie
houses may not be public utilities but as places of entertainment affected with
a certain degree of public interest, they are subject to reasonable regulation.
That regulation is stronger and more restrictive than that of regular or ordinary
businesses.
The following citation for instance, is pure obiter insofar as half-prices for
minors are concerned:
... [T]he proprietors of a theater can open and close their place
at will, and no one can make lawful complaint. They can
charge what they choose for admission to their theater. They
can limit the number admitted. They can refuse to sell tickets
and collect the price of admission at the door. They can
preserve order and enforce quiet while the performance is
going on. They can make it a part of the contract and a
condition of admission, by giving due notice and printing the
condition in the ticket that no one shall be admitted under 21
years of age, or that men only or women only shall be
admitted, or that a woman cannot enter unless she is
accompanied by a male escort, and the like. The proprietors,
in the control of their business, may regulate the terms of
admission in any reasonable way. If those terms are not
satisfactory, no one is obliged to buy a ticket or make the
contract. If the terms are satisfactory, and the contract is
made, the minds of the parties meet upon the condition, and
the purchaser impliedly promises to perform it. (Collister v.
Hayman, 76 N.E. 20,183 N.Y. 250, 253, 1 L.R.A. [N.S.] 1188, 11
Am. St. Rep. 740, An Cas. 344).
I see no reason at this time why we should pass upon situations that are not
before us or warn municipal governments beforehand to avoid enacting certain
regulations when nobody knows exactly what circumstances may call for those
regulations.
For instance,
A theater ticket has been described to be either a mere
license, revocable at the will of the proprietor of the theater
or it may be evidence of a contract whereby, for a valuable
12
consideration, the purchaser has acquired the right to enter
the theater and observe the performance on condition that he
behaves properly (Law of the State.
Screen and Radio by Marchetti, 1939, ec., page 268). Such
ticket, therefore, represents a right, positive or conditional, as
the case may be, according to the terms of the original
contract of sale. This right is clearly a right of property. The
ticket which represents that right is also, necessarily, a species
of property. As such, the owner thereof, in the absence of any
condition to the contrary y in the contract by which he
obtained it, has the clear right to dispose of it, to sell it to
whom he pleases and at such price as he can obtain Ibids,
citing Ex-parte Quarg, 84 Pac., 766,149 Cal. 79, 80, 5 L.R.A.
[N.S], 183, 117 Am. St. Rep. 11 5, 9 Ann. Ca. 747; Also People
v. Steele, 231, III. 340, 344, 14 R.A. [N.S.] 361, 121 Am. St. Rep.
321, 83 N.E. 236). ....
xxx xxx xxx
.... A lawful business or calling may not, under the guise of
regulation, be unreasonably interfered with even by the
exercise of police power. (Ogden City v. Leo, 54 Utah 556, 182
P. 530) A police measure for the regulation of the conduct,
control and operation of a business should not encroach upon
the legitimate and lawful exercise by the citizens of their
property rights (Pampanga Bus Co., Inc. v. Municipality of
Tarlac, 3 SCRA 816). The right of the owner to fix a price at
which his property shall be sold or used is an inherent
attribute of the property itself and, as such, within the
protection of the due process clause (Tyson and Bro.--United
Theater Ticket Officers, Inc. v. Banton, supra). Hence the
proprietors of a theater have a right to manage their property
in their own way, to fix what prices of admission they think
 most for their own advantage, and that ally person who did
not approve could stay away (Ibid, citing v. Clifford v. Brandon,
2 Campb. 358, 368.).
may be interpreted as carte blanche for movie owners to practically ignore
municipal regulation and do as they please.
More appropriate to my maid is to state that while tile Butuan City ordinance is
invalid, it does not necessarily follow that all forms of regulation are proscribed.
We have ruled in People v. Chan (65 Phil. 612):
In the first place, it must be noted that there can be no doubt
that the City of Manila exercises police power, by delegation
and that in the exercise of that power it is authorized to enact
ordinances for, the regulation of the operation of theatres and
cinematographs (sec. 2444(m) and (ee) of the Revised
Administrative Code: U.S. v. Gomez Jesus, 31 Phil. 218; U.S. v.
Pompeya, 31 Phil. 245).
On April 17, 1935, Ordinance No. 2347 was approved. In
section 1 it provides that all first run theatres or
cinematographs should register their seating capacity with the
City Treasurer, and in section 1 it prohibits the sale of tickets
in said theatres or cinematographs in excess of their
registered seating capacity.
Before the approval of Ordinance No. 2347, Ordinance No.
2188, approved on July 22, 1933, was in force, section 1 of
which divides cinematographs into three different classes:
first, second and third. The first class includes those located
on certain and specified streets like Rosario, Escolta, etc.,
which exhibit films for the first time; those belonging to the
second class are those which, not being located on said
13
streets, also exhibit films for the first time, and those which,
being located on said streets, regularly show films for the
second time or which have the exclusive right to show
secondhand films; and the third class comprehends all those
which are not included in the first and second classes.
xxx xxx xxx
To the foregoing must be added, and this is of common
knowledge, that the films which are shown for the first time
attract a large attendance, and the theatre or cinematograph,
whether it is first or second class, presenting shows for the
first time, would be suffocatingly overcrowded if the number
of tickets were not limited. This is the reason for the
prohibition of the sale of tickets in excess of the seating
capacity. The prohibition applies with equal force wherever
the same reason exists, that is, to first and second class
theatres which show films for the first time. (at pp. 612- 613)
There being a rational basis for the restriction of sales of tickets beyond seating
capacity, the ordinance is perfectly valid.
The same is true for the situation found in Samson v. Mayor of Bacolod City (60
SCRA 274):
When it is further remembered that insofar as movie houses
and other places of amusement are concerned. (According to
Section 17[1] of the City Charter of Bacolod, Commonwealth
Act No. 326 119381: 'To regulate and fix the amount of the
fees for the following: ... theatres, theatrical performances,
cinematographs, public exhibitions, circuses and all other
performances and places of amusements ....") the least doubt
cannot be entertained as to the validity of a measure
prohibiting a proprietor, lessee or operator of an amusement
 place to admit two or more persons with only one admission
ticket, not only in the interest of preventing fraud insofar as
municipal taxes are concerned but also in accordance with
public health, public safety and the general welfare. (Cf.
People v. Chan, 65 Phil. 611 [1938]). An American Supreme
Court decision, Western Turf Association v. Greenberg, (204
US 359 [1907] the opinion being penned by Justice Harlan is
equally illuminating: 'The statute is only a regulation of places
of public entertainment and amusement upon terms of equal
and exact justice to everyone holding a ticket of admission,
and who is not, at the time, under the influence of liquor, or
boisterous in conduct, or of lewd and immoral character. ....
Such a regulation, in itself just, is likewise promotive of peace
and good order among those who attend places of public
entertainment and amusement. It is neither an arbitrary
exertion of the state's inherent or governmental power, nor a
violation of any right secured by the constitution of the United
States. (at pp. 363-364).
The general welfare clause has two branches. The first
authorizes the municipal council to enact such ordinances and
make such regulations not repugnant to law, as may be
necessary to carry into effect and discharge the powers and
duties conferred upon the municipal council by law. The
second branch authorizes the municipality to enact such
ordinances as may be necessary and proper for the health and
safety, promote the prosperity, improve the morals, peace,
good order, comfort, and convenience of the municipality and
inhabitants thereof, and for the protection of property
therein. (U.S. v. Salaveria 39 Phil. 103).
This Court has generally been liberal in sustaining municipal action based on the
general welfare clause. In the case before us, however, there appears to be no
basis for sustaining the ordinance even on a generous interpretation of the
general welfare clause.

The City of Butuan tries to justify the challenged ordinance by invoking police
power. The invocation is improper. The definitions of police power, including
its exercise based on the general welfare clause, are emphasized to show that
the respondents' arguments have no merit —

Police power is inherent in the State but not in municipal

corporations. For a municipal corporation to exercise police
power, there must be a legislative grant which necessarily also
sets the limits for the exercise of the power.

In the Philippines, the grant of authority to the municipality to

exercise police power is embodied in Section 2238 of the
Revised Administrative Code, otherwise known as the General
Welfare Clause. Chartered cities are granted similar authority
in their respective charters

14
2.) G.R. No. L-63419 December 18, 1986 LUIS M. HOJAS, petitioner, vs. HON. JUDGE SENEN PENARANDA, Presiding Judge, Regional Trial Court of Cagayan de
Oro City, Branch XX, HONORABLE JUDGE ALFREDO LAGAMON, Presiding Judge, Regional Trial Court of Cagayan de Oro
City, Branch XXII, HONORABLE CITY FISCAL NOLI T. CATHI, City Fiscal of Cagayan de Oro City, respondents.
FLORENTINA A. LOZANO, petitioner,
vs. G.R. No. 75789 December 18, 1986

THE HONORABLE ANTONIO M. MARTINEZ, in his capacity as Presiding Judge,

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial Court,
Regional Trial Court, National Capital Judicial Region, Branch XX, Manila, and the National Capital Judicial Region, Branch 52, Manila and THELMA SARMIENTO, respondents.
HONORABLE JOSE B. FLAMINIANO, in his capacity as City Fiscal of
Manila, respondents. R.R. Nogales Law Office for petitioner in G.R. No. 63419, G.R. Nos. 74524-25, G.R. Nos. 75812-13, G.R. Nos. 75765-67
and counsel for respondent in G.R. No. 75789.
G.R. No. L-66839-42 December 18, 1986
Pio S. Canta for petitioner in G.R. Nos. 66839-42.
LUZVIMINDA F. LOBATON petitioner,
vs. Hermogenes Datuin, Jr. for petitioner in G.R. No. 71654.
HONORABLE GLICERIO L. CRUZ, in his capacity as Presiding Executive Judge, Branch V, Region IV, Regional Trial Court,
sitting at Lemery, Batangas, THE PROVINCIAL FISCAL OF BATANGAS, and MARIA LUISA TORDECILLA, respondents.
Abinoja, Tabalingcos, Villalon & Associates for petitioner in G.R. Nos. 75122-49.

G.R No. 71654 December 18, 1986

The Solicitor General for respondent in G.R. No. 63419, G.R. Nos. 66839-42, G.R. No. 71654, G.R. Nos. 74524-25, G.R.
Nos. 75122-49, G.R. Nos. 75812-13, G.R. Nos. 75765-67 and counsel for petitioner in G.R. No. 75789.
ANTONIO DATUIN and SUSAN DATUIN, petitioners, vs.HONORABLE JUDGE ERNANI C. PANO, Regional Trial Court,
Quezon City, Branch LXXXVIII, HONORABLE ClTY FISCAL OF QUEZON CITY, respondents.
YAP, J.:
G.R. No. 74524-25 December 18, 1986

The constitutionality of Batas Pambansa Bilang 22 (BP 22 for short), popularly

OSCAR VIOLAGO, petitioner, vs.HONORABLE JUDGE ERNANI C. PAÑ;O Regional Trial Court, Quezon City, Branch
LXXXVIII, HONORABLE CITY FISCAL OF QUEZON CITY, respondents.
known as the Bouncing Check Law, which was approved on April 3, 1979, is the
sole issue presented by these petitions for decision. The question is definitely
G.R. No. 75122-49 December 18, 1986 one of first impression in our jurisdiction.

ELINOR ABAD, petitioner, vs.THE HONORABLE NICOLAS A. GEROCHI, JR., in his capacity as Presiding Judge, Regional
Trial Court, National Capital Judicial Region, Branch 139, Makati and FEDERICO L. MELOCOTTON JR., in his capacity as
Trial Fiscal Regional Trial Court, Branch 139, Makati, respondents.
G.R No. 75812-13 December 18, 1986
AMABLE R. AGUILUZ VII and SYLVIA V. AGUILUZ, spouses, petitioners, vs. HONORABLE PRESIDING JUDGE OF BRANCH
154, now vacant but temporarily presided by HONORABLE ASAALI S. ISNANI Branch 153, Court of First Instance of Pasig,
Metro Manila, respondent.
G.R No. 75765-67 December 18, 1986
These petitions arose from cases involving prosecution of offenses under the
statute. The defendants in those cases moved seasonably to quash the
informations on the ground that the acts charged did not constitute an offense,
the statute being unconstitutional. The motions were denied by the respondent
trial courts, except in one case, which is the subject of G. R. No. 75789, wherein
the trial court declared the law unconstitutional and dismissed the case. The
parties adversely affected have come to us for relief.
As a threshold issue the former Solicitor General in his comment on the
petitions, maintained the posture that it was premature for the accused to

15
elevate to this Court the orders denying their motions to quash, these orders
being interlocutory. While this is correct as a general rule, we have in justifiable
cases intervened to review the lower court's denial of a motion to quash. 1 In
view of the importance of the issue involved here, there is no doubt in our mind
that the instant petitions should be entertained and the constitutional
challenge to BP 22 resolved promptly, one way or the other, in order to put to
rest the doubts and uncertainty that exist in legal and judicial circles and the
general public which have unnecessarily caused a delay in the disposition of
cases involving the enforcement of the statute.
For the purpose of resolving the constitutional issue presented here, we do not
find it necessary to delve into the specifics of the informations involved in the
cases which are the subject of the petitions before us. 2 The language of BP 22
is broad enough to cover all kinds of checks, whether present dated or
postdated, or whether issued in payment of pre-existing obligations or given in
mutual or simultaneous exchange for something of value.
I provides that the introduction in evidence of the unpaid and dishonored check
BP 22 punishes a person "who makes or draws and issues any check on account
or for value, knowing at the time of issue that he does not have sufficient funds
in or credit with the drawee bank for the payment of said check in full upon
presentment, which check is subsequently dishonored by the drawee bank for
insufficiency of funds or credit or would have been dishonored for the same
reason had not the drawer, without any valid reason, ordered the bank to stop
payment." The penalty prescribed for the offense is imprisonment of not less
than 30 days nor more than one year or a fine or not less than the amount of
the check nor more than double said amount, but in no case to exceed
P200,000.00, or both such fine and imprisonment at the discretion of the
court. 3
The statute likewise imposes the same penalty on "any person who, having
sufficient funds in or credit with the drawee bank when he makes or draws and
issues a check, shall fail to keep sufficient funds or to maintain a credit to cover
16
the full amount of the check if presented within a period of ninety (90) days
from the date appearing thereon, for which reason it is dishonored by the
drawee bank. 4
An essential element of the offense is "knowledge" on the part of the maker or
drawer of the check of the insufficiency of his funds in or credit with the bank
to cover the check upon its presentment. Since this involves a state of mind
difficult to establish, the statute itself creates a prima facie presumption of such
knowledge where payment of the check "is refused by the drawee because of
insufficient funds in or credit with such bank when presented within ninety (90)
days from the date of the check. 5 To mitigate the harshness of the law in its
application, the statute provides that such presumption shall not arise if within
five (5) banking days from receipt of the notice of dishonor, the maker or
drawer makes arrangements for payment of the check by the bank or pays the
holder the amount of the check.
Another provision of the statute, also in the nature of a rule of evidence,
with the drawee bank's refusal to pay "stamped or written thereon or attached
thereto, giving the reason therefor, "shall constitute prima facie proof of "the
making or issuance of said check, and the due presentment to the drawee for
payment and the dishonor thereof ... for the reason written, stamped or
attached by the drawee on such dishonored check." 6
The presumptions being merely prima facie, it is open to the accused of course
to present proof to the contrary to overcome the said presumptions.
II
BP 22 is aimed at putting a stop to or curbing the practice of issuing checks that
are worthless, i.e. checks that end up being rejected or dishonored for
payment. The practice, as discussed later, is proscribed by the state because of
the injury it causes to t public interests.
Before the enactment of BP 22, provisions already existed in our statute books
which penalize the issuance of bouncing or rubber checks. Criminal law has
dealth with the problem within the context of crimes against property punished
as "estafa" or crimes involving fraud and deceit. The focus of these penal
provisions is on the damage caused to the property rights of the victim.
The Penal Code of Spain, which was in force in the Philippines from 1887 until
it was replaced by the Revised Penal Code in 1932, contained provisions
penalizing, among others, the act of defrauding another through false
pretenses. Art. 335 punished a person who defrauded another "by falsely
pretending to possess any power, influence, qualification, property, credit,
agency or business, or by means of similar deceit." Although no explicit mention
was made therein regarding checks, this provision was deemed to cover within
its ambit the issuance of worthless or bogus checks in exchange for money. 7
In 1926, an amendment was introduced by the Philippine Legislature, which
added a new clause (paragraph 10) to Article 335 of the old Penal Code, this
time referring in explicit terms to the issuance of worthless checks. The
amendment penalized any person who 1) issues a check in payment of a debt
or for other valuable consideration, knowing at the time of its issuance that he
does not have sufficient funds in the bank to cover its amount, or 2) maliciously
signs the check differently from his authentic signature as registered at the
bank in order that the latter would refuse to honor it; or 3) issues a postdated
check and, at the date set for its payment, does not have sufficient deposit to
cover the same.8
In 1932, as already adverted to, the old Penal Code was superseded by the
Revised Penal Code. 9 The above provisions, in amended form, were
incorporated in Article 315 of the Revised Penal Code defining the crime of
estafa. The revised text of the provision read as follows:
Art. 315. Swindling (estafa).—Any person who shall defraud another by
any of the means mentioned hereinbelow shall be punished by:
17
xxx xxx xxx
2. By means of any of the following false pretenses or fraudulent acts
executed prior to or simultaneously with the commis sion of the fraud:
(a) By using fictitious name, or falsely pretending to possess
power, influence, qualifications, property, credit, agency,
business or imaginary transactions, or by means of other
similar deceits;
xxx xxx xxx
(d) By postdating a check, or issuing a check in payment of an
obligation the offender knowing that at the time he had no
funds in the bank, or the funds deposited by him were not
sufficient to cover the amount of the cheek without informing
the payee of such circumstances.
The scope of paragraph 2 (d), however, was deemed to exclude checks issued
in payment of pre-existing obligations. 10 The rationale of this interpretation is
that in estafa, the deceit causing the defraudation must be prior to or
simultaneous with the commission of the fraud. In issuing a check as payment
for a pre-existing debt, the drawer does not derive any material benefit in
return or as consideration for its issuance. On the part of the payee, he had
already parted with his money or property before the check is issued to him
hence, he is not defrauded by means of any "prior" or "simultaneous" deceit
perpetrated on him by the drawer of the check.
With the intention of remedying the situation and solving the problem of how
to bring checks issued in payment of pre-existing debts within the ambit of Art.
315, an amendment was introduced by the Congress of the Philippines in
1967, 11 which was enacted into law as Republic Act No. 4885, revising the
aforesaid proviso to read as follows:
 (d) By postdating a check, or issuing a check in payment of an obligation
when the offender had no funds in the bank, or his funds deposited
therein were not sufficient to cover the amount of the check. The
failure of the drawer of the check to deposit the amount necessary to
cover his check within three (3) days from receipt of notice from the
bank and/or the payee or holder that said check has been dishonored
for lack or insufficiency of funds shall be puma facie evidence of deceit
constituting false pretense or fraudulent act.
However, the adoption of the amendment did not alter the situation materially.
A divided Court held in People vs. Sabio, Jr. 12 that Article 315, as amended by
Republic Act 4885, does not cover checks issued in payment of pre-existing
obligations, again relying on the concept underlying the crime of estafa through
false pretenses or deceit—which is, that the deceit or false pretense must be
prior to or simultaneous with the commission of the fraud.
Since statistically it had been shown that the greater bulk of dishonored checks
consisted of those issued in payment of pre-existing debts, 13 the amended
provision evidently failed to cope with the real problem and to deal effectively
with the evil that it was intended to eliminate or minimize.
With the foregoing factual and legal antecedents as a backdrop, the then
Interim Batasan confronted the problem squarely. It opted to take a bold step
and decided to enact a law dealing with the problem of bouncing or worthless
checks, without attaching the law's umbilical cord to the existing penal
provisions on estafa. BP 22 addresses the problem directly and frontally and
makes the act of issuing a worthless check malum prohibitum. 14
The question now arises: Is B P 22 a valid law?
Previous efforts to deal with the problem of bouncing checks within the ambit
of the law on estafa did not evoke any constitutional challenge. In contrast, BP
22 was challenged promptly.
18
Those who question the constitutionality of BP 22 insist that: (1) it offends the
constitutional provision forbidding imprisonment for debt; (2) it impairs
freedom of contract; (3) it contravenes the equal protection clause; (4) it unduly
delegates legislative and executive powers; and (5) its enactment is flawed in
that during its passage the Interim Batasan violated the constitutional provision
prohibiting amendments to a bill on Third Reading.
The constitutional challenge to BP 22 posed by petitioners deserves a searching
and thorough scrutiny and the most deliberate consideration by the Court,
involving as it does the exercise of what has been described as "the highest and
most delicate function which belongs to the judicial department of the
government." 15
As we enter upon the task of passing on the validity of an act of a co-equal and
coordinate branch of the government, we need not be reminded of the time-
honored principle, deeply ingrained in our jurisprudence, that a statute is
presumed to be valid. Every presumption must be indulged in favor of its
constitutionality. This is not to say that we approach our task with diffidence or
timidity. Where it is clear that the legislature has overstepped the limits of its
authority under the constitution we should not hesitate to wield the axe and let
it fall heavily, as fall it must, on the offending statute.
III
Among the constitutional objections raised against BP 22, the most serious is
the alleged conflict between the statute and the constitutional provision
forbidding imprisonment for debt. It is contended that the statute runs counter
to the inhibition in the Bill of Rights which states, "No person shall be
imprisoned for debt or non-payment of a poll tax." 16 Petitioners insist that,
since the offense under BP 22 is consummated only upon the dishonor or non-
payment of the check when it is presented to the drawee bank, the statute is
really a "bad debt law" rather than a "bad check law." What it punishes is the
non-payment of the check, not the act of issuing it. The statute, it is claimed, is
nothing more than a veiled device to coerce payment of a debt under the threat
of penal sanction.
First of all it is essential to grasp the essence and scope of the constitutional
inhibition invoked by petitioners. Viewed in its historical context, the
constitutional prohibition against imprisonment for debt is a safeguard that
evolved gradually during the early part of the nineteenth century in the various
states of the American Union as a result of the people's revulsion at the cruel
and inhumane practice, sanctioned by common law, which permitted creditors
to cause the incarceration of debtors who could not pay their debts. At common
law, money judgments arising from actions for the recovery of a debt or for
damages from breach of a contract could be enforced against the person or
body of the debtor by writ of capias ad satisfaciendum. By means of this writ, a
debtor could be seized and imprisoned at the instance of the creditor until he
makes the satisfaction awarded. As a consequence of the popular ground swell
against such a barbarous practice, provisions forbidding imprisonment for debt
came to be generally enshrined in the constitutions of various states of the
Union. 17
This humanitarian provision was transported to our shores by the Americans at
the turn of t0he century and embodied in our organic laws. 18 Later, our
fundamental law outlawed not only imprisonment for debt, but also the
infamous practice, native to our shore, of throwing people in jail for non-
payment of the cedula or poll tax. 19
The reach and scope of this constitutional safeguard have been the subject of
judicial definition, both by our Supreme Court 20 and by American State
courts.21 Mr. Justice Malcolm speaking for the Supreme Court in Ganaway vs.
Queen, 22 stated: "The 'debt' intended to be covered by the constitutional
guaranty has a well-defined meaning. Organic provisions relieving from
imprisonment for debt, were intended to prevent commitment of debtors to
prison for liabilities arising from actions ex contractu The inhibition was never
meant to include damages arising in actions ex delicto, for the reason that
damages recoverable therein do not arise from any contract entered into
19
between the parties but are imposed upon the defendant for the wrong he has
done and are considered as punishment, nor to fines and penalties imposed by
the courts in criminal proceedings as punishments for crime."
The law involved in Ganaway was not a criminal statute but the Code of
Procedure in Civil Actions (1909) which authorized the arrest of the defendant
in a civil case on grounds akin to those which justify the issuance of a writ of
attachment under our present Rules of Court, such as imminent departure of
the defendant from the Philippines with intent to defraud his creditors, or
concealment, removal or disposition of properties in fraud of creditors, etc. The
Court, in that case, declared the detention of the defendant unlawful, being
violative of the constitutional inhibition against imprisonment for debt, and
ordered his release. The Court, however, refrained from declaring the statutory
provision in question unconstitutional.
Closer to the case at bar is People v. Vera Reyes,23 wherein a statutory provision
which made illegal and punishable the refusal of an employer to pay, when he
can do so, the salaries of his employees or laborers on the fifteenth or last day
of every month or on Saturday every week, was challenged for being violative
of the constitutional prohibition against imprisonment for debt. The
constitutionality of the law in question was upheld by the Court, it being within
the authority of the legislature to enact such a law in the exercise of the police
power. It was held that "one of the purposes of the law is to suppress possible
abuses on the part of the employers who hire laborers or employees without
paying them the salaries agreed upon for their services, thus causing them
financial difficulties. "The law was viewed not as a measure to coerce payment
of an obligation, although obviously such could be its effect, but to banish a
practice considered harmful to public welfare.
IV
Has BP 22 transgressed the constitutional inhibition against imprisonment for
debt? To answer the question, it is necessary to examine what the statute
prohibits and punishes as an offense. Is it the failure of the maker of the check
to pay a debt? Or is it the making and issuance of a worthless check in payment
of a debt? What is the gravamen of the offense? This question lies at the heart
of the issue before us.
The gravamen of the offense punished by BP 22 is the act of making and issuing
a worthless check or a check that is dishonored upon its presentation for
payment. It is not the non-payment of an obligation which the law punishes.
The law is not intended or designed to coerce a debtor to pay his debt. The
thrust of the law is to prohibit, under pain of penal sanctions, the making of
worthless checks and putting them in circulation. Because of its deleterious
effects on the public interest, the practice is proscribed by the law. The law
punishes the act not as an offense against property, but an offense against
public order.
Admittedly, the distinction may seem at first blush to appear elusive and
difficult to conceptualize. But precisely in the failure to perceive the vital
distinction lies the error of those who challenge the validity of BP 22.
It may be constitutionally impermissible for the legislature to penalize a person
for non-payment of a debt ex contractu But certainly it is within the prerogative
of the lawmaking body to proscribe certain acts deemed pernicious and inimical
to public welfare. Acts mala in se are not the only acts which the law can punish.
An act may not be considered by society as inherently wrong, hence,
not malum in se but because of the harm that it inflicts on the community, it
can be outlawed and criminally punished as malum prohibitum. The state can
do this in the exercise of its police power.
The police power of the state has been described as "the most essential,
insistent and illimitable of powers" which enables it to prohibit all things hurtful
to the comfort, safety and welfare of society. 24 It is a power not emanating
from or conferred by the constitution, but inherent in the state, plenary,
"suitably vague and far from precisely defined, rooted in the conception that
man in organizing the state and imposing upon the government limitations to
safeguard constitutional rights did not intend thereby to enable individual
20
citizens or group of citizens to obstruct unreasonably the enactment of such
salutary measures to ensure communal peace, safety, good order and
welfare." 25
The enactment of BP 22 is a declaration by the legislature that, as a matter of
public policy, the making and issuance of a worthless check is deemed public
nuisance to be abated by the imposition of penal sanctions.
It is not for us to question the wisdom or impolicy of the statute. It is sufficient
that a reasonable nexus exists between means and end. Considering the factual
and legal antecedents that led to the adoption of the statute, it is not difficult
to understand the public concern which prompted its enactment. It had been
reported that the approximate value of bouncing checks per day was close to
200 million pesos, and thereafter when overdrafts were banned by the Central
Bank, it averaged between 50 minion to 80 million pesos a day. 26
By definition, a check is a bill of exchange drawn on a bank and payable on
demand. 27 It is a written order on a bank, purporting to be drawn against a
deposit of funds for the payment of all events, of a sum of money to a certain
person therein named or to his order or to cash and payable on
demand. 28 Unlike a promissory note, a check is not a mere undertaking to pay
an amount of money. It is an order addressed to a bank and partakes of a
representation that the drawer has funds on deposit against which the check is
drawn, sufficient to ensure payment upon its presentation to the bank. There
is therefore an element of certainty or assurance that the instrument wig be
paid upon presentation. For this reason, checks have become widely accepted
as a medium of payment in trade and commerce. Although not legal tender,
checks have come to be perceived as convenient substitutes for currency in
commercial and financial transactions. The basis or foundation of such
perception is confidence. If such confidence is shakes the usefulness of checks
as currency substitutes would be greatly diminished or may become nit Any
practice therefore tending to destroy that confidence should be deterred for
the proliferation of worthless checks can only create havoc in trade circles and
the banking community.
Recent statistics of the Central Bank show that one-third of the entire money
supply of the country, roughly totalling P32.3 billion, consists of peso demand
deposits; the remaining two. 29 These de deposit thirds consists of currency in
circulation. ma deposits in the banks constitute the funds against which among
others, commercial papers like checks, are drawn. The magnitude of the
amount involved amply justifies the legitimate concern of the state in
preserving the integrity of the banking system. Flooding the system with
worthless checks is like pouring garbage into the bloodstream of the nation's
economy.
The effects of the issuance of a worthless check transcends the private interests
of the parties directly involved in the transaction and touches the interests of
the community at large. The mischief it creates is not only a wrong to the payee
or holder, but also an injury to the public. The harmful practice of putting
valueless commercial papers in circulation, multiplied a thousand fold, can very
wen pollute the channels of trade and commerce, injure the banking system
and eventually hurt the welfare of society and the public interest. As aptly
stated — 30
The 'check flasher' does a great deal more than contract a debt; he
shakes the pillars of business; and to my mind, it is a mistaken charity
of judgment to place him in the same category with the honest man
who is unable to pay his debts, and for whom the constitutional
inhibition against' imprisonment for debt, except in cases of fraud was
intended as a shield and not a sword.
In sum, we find the enactment of BP 22 a valid exercise of the police power and
is not repugnant to the constitutional inhibition against imprisonment for debt.
This Court is not unaware of the conflicting jurisprudence obtaining in the
various states of the United States on the constitutionality of the "worthless
check" acts. 31 It is needless to warn that foreign jurisprudence must be taken
with abundant caution. A caveat to be observed is that substantial differences
exist between our statute and the worthless check acts of those states where
21
the jurisprudence have evolved. One thing to remember is that BP 22 was not
lifted bodily from any existing statute. Furthermore, we have to consider that
judicial decisions must be read in the context of the facts and the law involved
and, in a broader sense, of the social economic and political environment—in
short, the milieu—under which they were made. We recognize the wisdom of
the old saying that what is sauce for the goose may not be sauce for the gander.
As stated elsewhere, police power is a dynamic force that enables the state to
meet the exigencies of changing times. There are occasions when the police
power of the state may even override a constitutional guaranty. For example,
there have been cases wherein we held that the constitutional provision on
non-impairment of contracts must yield to the police power of the
state. 32 Whether the police power may override the constitutional inhibition
against imprisonment for debt is an issue we do not have to address. This bridge
has not been reached, so there is no occasion to cross it.
We hold that BP 22 does not conflict with the constitutional inhibition against
imprisonment for debt.
We need not detain ourselves lengthily in the examination of the other
constitutional objections raised by petitioners, some of which are rather flimsy.
We find no valid ground to sustain the contention that BP 22 impairs freedom
of contract. The freedom of contract which is constitutionally protected is
freedom to enter into "lawful" contracts. Contracts which contravene public
policy are not lawful. 33 Besides, we must bear in mind that checks can not be
categorized as mere contracts. It is a commercial instrument which, in this
modem day and age, has become a convenient substitute for money; it forms
part of the banking system and therefore not entirely free from the regulatory
power of the state.
Neither do we find substance in the claim that the statute in question denies
equal protection of the laws or is discriminatory, since it penalizes the drawer
of the check, but not the payee. It is contended that the payee is just as
responsible for the crime as the drawer of the check, since without the
indispensable participation of the payee by his acceptance of the check there
would be no crime. This argument is tantamount to saying that, to give equal
protection, the law should punish both the swindler and the swindled. The
petitioners' posture ignores the well-accepted meaning of the clause "equal
protection of the laws." The clause does not preclude classification of
individuals, who may be accorded different treatment under the law as long as
the classification is no unreasonable or arbitrary. 34
It is also suggested that BP 22 constitutes undue or improper delegation of
legislative powers, on the theory that the offense is not completed by the sole
act of the maker or drawer but is made to depend on the will of the payee. If
the payee does not present the check to the bank for payment but instead
keeps it, there would be no crime. The logic of the argument stretches to
absurdity the meaning of "delegation of legislative power." What cannot be
delegated is the power to legislate, or the power to make laws. 35 which means,
as applied to the present case, the power to define the offense sought to be
punished and to prescribe the penalty. By no stretch of logic or imagination can
it be said that the power to define the crime and prescribe the penalty therefor
has been in any manner delegated to the payee. Neither is there any provision
in the statute that can be construed, no matter how remotely, as undue
delegation of executive power. The suggestion that the statute unlawfully
delegates its enforcement to the offended party is farfetched.
Lastly, the objection has been raised that Section 9 (2) of Article VII of the 1973
Constitution was violated by the legislative body when it enacted BP 22 into
law. This constitutional provision prohibits the introduction of amendments to
a bill during the Third Reading. It is claimed that during its Third Reading, the
bill which eventually became BP 22 was amended in that the text of the second
paragraph of Section 1 of the bill as adopted on Second Reading was altered or
changed in the printed text of the bill submitted for approval on Third Reading.
A careful review of the record of the proceedings of the Interim Batasan on this
matter shows that, indeed, there was some confusion among Batasan
22
Members on what was the exact text of the paragraph in question which the
body approved on Second Reading. 36 Part of the confusion was due apparently
to the fact that during the deliberations on Second Reading (the amendment
period), amendments were proposed orally and approved by the body or
accepted by the sponsor, hence, some members might not have gotten the
complete text of the provisions of the bill as amended and approved on Second
Reading. However, it is clear from the records that the text of the second
paragraph of Section 1 of BP 22 is the text which was actually approved by the
body on Second Reading on February 7, 1979, as reflected in the approved
Minutes for that day. In any event, before the bin was submitted for final
approval on Third Reading, the Interim Batasan created a Special Committee to
investigate the matter, and the Committee in its report, which was approved
by the entire body on March 22, 1979, stated that "the clause in question was
... an authorized amendment of the bill and the printed copy thereof reflects
accurately the provision in question as approved on Second Reading. 37 We
therefore, find no merit in the petitioners' claim that in the enactment of BP 22
the provisions of Section 9 (2) of Article VIII of the 1973 Constitution were
violated.
WHEREFORE, judgment is rendered granting the petition in G.R. No. 75789 and
setting aside the order of the respondent Judge dated August 19, 1986. The
petitions in G.R. Nos. 63419, 66839-42, 71654, 74524-25, 75122-49, 75812-13
and 75765-67 are hereby dismissed and the temporary restraining order issued
in G.R. Nos. 74524-25 is lifted. With costs against private petitioners.
SO ORDERED.in
3) G.R. No. 88265 December 21, 1989 generic name. The brand name may be included if so desired.
(p. 6, Rollo.)
SANTIAGO A. DEL ROSARIO, GEORGE G. GACULA, EDGARDO G. SANTOS, ALBANO
S. SIBAL, ALBERTO C. REYES, NONITO P. ARROYO, EMMANUEL F. TERENCIO, (b) Section 12, Pars. (b), (c) and (d) of the same law which provide:
DOMINGO S. DE LEON, MODESTO O. LLAMAS, FARIDA U. ALONTO, ZENAIDA A.
FLOIRENDO, ISABEL A. MEJIA, LUZ P. MABANAG, RAMON H. RABAGO, JR., b) For the second conviction, the penalty of file in the amount
SAMUEL D. TROCIO and OSCAR M. BRION, petitioners, of not less than two thousand pesos (P2,000.00) but not
vs. exceeding five thousand pesos (P5,000.00) at the discretion of
HON. ALFREDO R. BENGZON, in his capacity as Secretary of the Department of the court.
Health, respondent.
c) For the third conviction, the penalty of fine in the amount
Facundo T. Bautista for petitioners. of not less than five thousand pesos (P5,000.00) but not
exceeding ten thousand pesos (P10,000.00) and suspension of
his license to practice his profession for thirty (30) days at the
discretion of the court.
GRIÑO-AQUINO, J.:
d) For the fourth and subsequent convictions, the penalty of
This is a class suit filed by officers of the Philippine Medical Association, the fine of not less than ten thousand pesos (P10,000.00) and
national organization of medical doctors in the Philippines, on behalf of their suspension of his license to practice his profession for one
professional brethren who are of kindred persuasion, wherein this Court is year or longer at the discretion of the court. (pp. 6-7, Rollo.)
asked to declare as unconstitutional, hence, null and void, some provisions of and
the Generics Act of 1988 (Rep. Act No. 6675), and of the implementing
Administrative Order No. 62 issued pursuant thereto, specifically: (c) Sections 4 and 7, Phase 3 of Administrative Order No. 62, Series of 1989
dated March 9, 1989, of the respondent Secretary of Health, which read as
(a) Section 6, Pars. (a) and (b) of the Generics Act which provide: follows:

a) All government health agencies and their personnel as well Section 4. Violative Erroneous, and Impossible Prescriptions.
as other government agencies shall use generic terminology
or generic names in all transactions related to purchasing, 4.1. Violative Prescriptions:
prescribing, dispensing and administering of drugs and
medicines. 4.1.1 Where the generic name is not written;

b) All medical, dental and veterinary practitioners, including 4.1.2 Where the generic name is not legible and a brand name
private practitioners, shall write prescriptions using the which is legible is written;

23
4.1.3 Where the brand name is indicated and instructions
added, such as the phase 'No Substitution' which tend to
obstruct, hinder or prevent proper generic dispensing.
4.2 What to do with Violative Prescriptions.
Violative prescriptions shall not be filled. They shall be kept
and reported by the pharmacist of the drug outlet or any other
interested party to the nearest DOH Officer for appropriate
action. The pharmacist shall advise the prescriber of the
problem and/or instruct the customer to get the proper
prescription.
4.3 Erroneous Prescriptions:
4.3.1 When the brand name precedes the generic name.
4.3.2 Where the generic name is the one in parenthesis.
4.3.3 Where the brand name in (sic) not in parenthesis.
4.3.4 Where more than one drug product is prescribed in one
prescription form.
4.4 What to do with erroneous prescriptions.
Erroneous prescriptions shall be filled. Such prescriptions shall
also be kept and reported by the pharmacist of the drug outlet
or any other interested party to the nearest DOH Office for
appropriate action.
xxx xxx xxx
Section 7. Timetable of Implementation.
24
In order to give all affected parties adequate time for learning
and adjustment, the implementation of these Rules and
Regulations shall be in three phases, as follows:
Phase 1 Education Drive ...
Phase 2 Monitoring of Compliance
xxx xxx xxx
Phase 3 Implementation.
Beginning September 1, 1989 the DOH and the other relevant
agencies of government shall monitor compliance with these
Rules and Regulations and all violations shall be subject to the
appropriate sanctions and penalties provided for under these
Rules and Regulations and the Generics Act of 1988. (pp. 7-9,
Rollo.)
On March 15, 1989, the full text of Republic Act No. 6675 was published in two
newspapers of general circulation in the Philippines. The law took effect on
March 30, 1989, fifteen (15) days after its publication, as provided in Section 15
thereof.
Section 7, Phase 3 of Administrative Order No. 62 was amended by
Administrative Order No. 76 dated August 28, 1989 by postponing to January
1, 1990 the effectivity of the sanctions and penalties for violations of the law,
provided in Sections 6 and 12 of the Generics Act and Sections 4 and 7 of the
Administrative Order.
The petitioners allege that "as of this date, there is no breach or violation yet"
of the law (p. 9, Rollo), which took effect on March 30, 1989. However, as the
penal provisions will only take effect on January 1, 1990, it would have been
more accurate to state that "as of this date, no breaches or violations of the law
have been punished yet" (p. 9, Rollo).
The petition is captioned as an action for declaratory relief, over which this
Court does not exercise jurisdiction. Nevertheless, in view of the public interest
involved, we decided to treat it as a petition for prohibition instead.
The petitioner's main argument against paragraphs (a) and (b), Section 6 of the
law, is the alleged unequal treatment of government physicians, dentists, and
veterinarians, on one hand, and those in private practice on the other hand, in
the manner of prescribing generic drugs, for, while the former are allegedly
required to use only generic terminology in their prescriptions, the latter may
write the brand name of the drug in parenthesis below the generic name. The
favored treatment of private doctors, dentists and veterinarians under the law
is allegedly a specie of invalid class legislation.
There is no merit in that argument for it proceeds from a misreading and
misinterpretation of the letter and intent of paragraphs (a) and (b), Section 6 of
the Generics Act. Indeed, as explained by the public respondent:
... while paragraph (a) enumerates the government
transactions ('Purchasing, prescribing, dispensing and
administering of drugs and medicines') where the sole use of
generic terminology has been required, the 'prescription' of
drugs is further governed by paragraph (b). And the use of the
word 'all' in the latter provision emphasizes the absence of any
distinction between government and private physicians. In
other words, in prescribing drugs, physicians, whether in
government service or in private practice, are both governed
by exactly the same rules, and thus, are both authorized to
include the brand name in their respective prescriptions. (p.
44, Rollo.)
25
Furthermore, it may be observed that while paragraph (a) refers to "all
government health agencies, and their personnel as well as other government
agencies" (not necessarily physicians, dentists and veterinarians), paragraph (b)
refers to "all medical, dental and veterinary practitioners, including private
practitioners."
Petitioners concede that the requirement for doctors, dentists, and
veterinarians to use the generic terminology in writing their prescriptions,
followed by the brand name in parenthesis, is "well and good" (p. 12, Rollo).
However, they complain that under paragraph (d) of the law which reads:
(d) Drug outlets, including drugstores, hospital and non-hospital
pharmacies and non-traditional outlets such as supermarkets and
stores, shall inform any buyer about any and all other drug products
having the same generic name, together with their corresponding
prices so that the buyer may adequately exercise his option. Within
one (1) year after approval of this Act, the drug outlets referred to
herein, shall post in conspicuous places in their establishments, a list
of drug products with the same generic name and their corresponding
prices. (Annex A, p. 23, Rollo.)
the salesgirl at the drugstore counter is authorized to "substitute the prescribed
medicine with another medicine belonging to the same generic group." Since
doctors are not allowed to instruct the druggist not to substitute the
prescription, or to "Dispense only as Prescribed" (per Sec. 4, Adm. Order No.
62), the petitioners argue that "the act of prescribing the correct medicine for
the patient becomes the act of the salesgirl at the drugstore counter, no longer
the act of the physician, dentist, or veterinarian" (p. 12, Rollo).
Here again, the petitioners have distorted the clear provisions of the law and
the implementing administrative order. For it is plain to see that neither
paragraph (d) of Section 6 of the Generics Act, nor Section 4 of Administrative
Order No. 62, gives the salesgirl and/or druggist the discretion to substitute the
doctor's prescription.
On the contrary, Section 4, par. 4.1, of Administrative Order No. 62 directs the
pharmacist not to fill "violative prescriptions" (where the generic name is not
written, or illegibly written, and the prescription of a brand name is
accompanied by the doctor's instruction not to substitute it), as well
as "impossible prescriptions" (par. 4.5). Even a doctor's "erroneous"
prescriptions "shall be filled," not substituted (par. 4.3, Adm. Order No. 62).
And, Sections 3 and 5 of Adm. Order No. 63 enjoin the drug outlets not (to)
favor or suggest" or "impose" a particular brand or product on the customer.
The administrative older provides:
In order to ensure the informed choice and use of drugs by the
patient/ buyer, the drug outlet is required to:
3.1.1 Inform the patient/buyer of all available drug products
generically equivalent to the one prescribed with their
corresponding prices. In so doing, the drug outlet shall
not favor or suggest any particular product so that the
patient/buyer may fully and adequately exercise his
option to choose (Sec. 3, Adm. Order No. 63 s. 1989).
xxx xxx xxx
The following acts or omissions are considered violations of
these rules and regulations:
5.1 Imposing a particular brand or product on the buyer. ... (pp.
46-47, Rollo.)
The salesgirl at the drugstore counter, merely informs the customer, but does
not determine (for she is incompetent to do so) all the other drug products or
brands that have the same generic name, and their corresponding prices. That
information she may obtain from the list of drug products determined by the
Bureau of Food and Drugs to have the same generic name, or which are the
chemical, biological, and therapeutic equivalent of the generic drug. All
26
drugstores or drug outlets are required by the law to post such list in a
conspicuous place in their premises for the information of the customers, for
the choice of whether to buy the expensive brand name drug, or the less
expensive generic, should be exercised by the customer alone.
The purpose of the Generics Act is to carry out the policy of the State:
To promote, encourage and require the use of generic
terminology in the importation, manufacture, distribution,
marketing, advertising and promotion, prescription and
dispensing of drugs;
To ensure the adequate supply of drugs with generic names at
the lowest possible cost and endeavor to make them available
for free to indigent patients;
To encourage the extensive use of drugs with generic names
through a rational system of procurement and distribution;
To emphasize the scientific basis for the use of drugs, in order
that health professionals may become more aware and
cognizant of their therapeutic effectiveness; and
To promote drug safety by minimizing duplication in
medications and/or use of drugs with potentially adverse drug
interactions. (pp. 3839, Rollo.)
or, as stated by the public respondent, "to promote and require the use of
generic drug products that are therapeutically equivalent to their brand-name
counter-parts" (p. 39, Rollo) for "the therapeutic effect of a drug does not
depend on its 'brand' but on the 'active ingredients' which it contains." The
medicine that cures is the "active ingredient" of the drug, and not the brand
name by which it has been baptized by the manufacturer.
The public respondent points out that the institution of generics in the
Philippines will compel physicians to prescribe drugs based on their therapeutic
or "active ingredient," instead of their well-known brand names. Multiple
medications which may produce potentially adverse, even lethal, chemical
reactions in the patient will thereby be avoided. Patients with limited means
will be able to buy generic drugs that cost less but possess the same active
ingredients, dosage form, and strength as brand names, many of which are
priced beyond the reach of the common tao because the high costs of
advertising, packaging, royalties, and other inputs of production determine
their pricing for the market.
The Court has been unable to find any constitutional infirmity in the Generics
Act. It, on the contrary, implements the constitutional mandate for the State
"to protect and promote the right to health of the people" and "to make
essential goods, health and other social services available to all the people at
affordable cost" (Section 15, Art. II and Section 11, Art. XIII, 1987 Constitution).
The prohibition against the use by doctors of "no substitution" and/or words of
similar import in their prescription, is a valid regulation to prevent the
circumvention of the law. It secures to the patient the right to choose between
the brand name and its generic equivalent since his doctor is allowed to write
both the generic and the brand name in his prescription form. If a doctor is
allowed to prescribe a brand-name drug with "no substitution," the patient's
option to buy a lower-priced, but equally effective, generic equivalent would
thereby be curtailed. The law aims to benefit the impoverished (and often
sickly) majority of the population in a still developing country like ours, not the
affluent and generally healthy minority.
There is no merit in the petitioners' theory that the Generics Act impairs the
obligation of contract between a physician and his patient, for no contract ever
results from a consultation between patient and physician. A doctor may take
in or refuse a patient, just as the patient may take or refuse the doctor's advice
or prescription. As aptly observed by the public respondent, no doctor has ever
filed an action for breach of contract against a patient who refused to take
27
prescribed medication, undergo surgery, or follow a recommended course
treatment by his doctor ( p. 53, Rollo). In any event, no private contract
between doctor and patient may be allowed to override the power of the State
to enact laws that are reasonably necessary to secure the health, safety, good
order, comfort, or general welfare of the community. This power can neither
be abdicated nor bargained away. All contractual and property rights are held
subject to its fair exercise (Anglo-Fil Trading Corporation vs. Lazaro, 124 SCRA
495.)
Petitioners have also assailed Section 12, paragraphs b, c and d, of the Generics
Act prescribing graduated penalties (ranging from a reprimand to a fine of not
less that P10,000 and the suspension of the physician's license to practice his
profession for one [1]) year or longer, at the discretion of the court) for
violations of its provisions. Petitioners' allegation that these penalties violate
the constitutional guarantee against excessive fines and cruel and degrading
punishment, has no merit. Penal sanctions are indispensable if the law is to be
obeyed. They are the "teeth" of the law. Without them, the law would be
toothless, not worth the paper it is printed on, for physicians, dentists and
veterinarians may freely ignore its prescriptions and prohibitions. The penalty
of suspension or cancellation of the physician's license is neither cruel,
inhuman, or degrading. It is no different from the penalty of suspension or
disbarment that this Court inflicts on lawyers and judges who misbehave or
violate the laws and the Codes of Professional and Judicial Conduct.
We hold that the Generics Act and the implementing administrative orders of
the Secretary of Health are constitutional. In light of its beneficial provisions,
we cannot heed the petitioners' plea to kill it aborning, i.e., before it has had a
chance to prove its value to our people as envisioned by its makers.
WHEREFORE, the petition is dismissed for lack of merit. Costs against the
petitioners.
SO ORDERED.
4) G.R. No. 78164 July 31, 1987
TERESITA TABLARIN, MA, LUZ CIRIACO, MA NIMFA B. ROVIRA, EVANGELINA S.
LABAO, in their behalf and in behalf of applicants for admission into the Medical
Colleges during the school year 1987-88 and future years who have not taken or
successfully hurdled tile National Medical Admission Test (NMAT).petitioners,
vs.
THE HONORABLE JUDGE ANGELINA S. GUTIERREZ, Presiding Judge of Branch
XXXVII of the Regional Trial Court of the National Capital Judicial Region with seat
at Manila, THE HONORABLE SECRETARY LOURDES QUISUMBING, in her capacity
as Chairman of the BOARD OF MEDICAL EDUCATION, and THE CENTER FOR
EDUCATIONAL MEASUREMENT (CEM), respondents.
FELICIANO, J.:
The petitioners sought admission into colleges or schools of medicine for the
school year 1987-1988. However, the petitioners either did not take or did not
successfully take the National Medical Admission Test (NMAT) required by the
Board of Medical Education, one of the public respondents, and administered
by the private respondent, the Center for Educational Measurement (CEM).
On 5 March 1987, the petitioners filed with the Regional Trial Court, National
Capital Judicial Region, a Petition for Declaratory Judgment and Prohibition with
a prayer for Temporary Restraining Order and Preliminary Injunction. The
petitioners sought to enjoin the Secretary of Education, Culture and Sports, the
Board of Medical Education and the Center for Educational Measurement from
enforcing Section 5 (a) and (f) of Republic Act No. 2382, as amended, and MECS
Order No. 52, series of 1985, dated 23 August 1985 and from requiring the
taking and passing of the NMAT as a condition for securing certificates of
eligibility for admission, from proceeding with accepting applications for taking
the NMAT and from administering the NMAT as scheduled on 26 April 1987 and
in the future. After hearing on the petition for issuance of preliminary
injunction, the trial court denied said petition on 20 April 1987. The NMAT was
conducted and administered as previously scheduled.
28
Petitioners accordingly filed this Special Civil Action for certiorari with this Court
to set aside the Order of the respondent judge denying the petition for issuance
of a writ of preliminary injunction.
Republic Act 2382, as amended by Republic Acts Nos. 4224 and 5946, known as
the "Medical Act of 1959" defines its basic objectives in the following manner:
Section 1. Objectives. — This Act provides for and shall govern
(a) the standardization and regulation of medical education (b) the
examination for registration of physicians; and (c) the supervision,
control and regulation of the practice of medicine in the Philippines.
(Underscoring supplied)
The statute, among other things, created a Board of Medical Education which
is composed of (a) the Secretary of Education, Culture and Sports or his duly
authorized representative, as Chairman; (b) the Secretary of Health or his duly
authorized representative; (c) the Director of Higher Education or his duly
authorized representative; (d) the Chairman of the Medical Board or his duly
authorized representative; (e) a representative of the Philippine Medical
Association; (f) the Dean of the College of Medicine, University of the
Philippines; (g) a representative of the Council of Deans of Philippine Medical
Schools; and (h) a representative of the Association of Philippine Medical
Colleges, as members. The functions of the Board of Medical Education
specified in Section 5 of the statute include the following:
(a) To determine and prescribe equirements for admission into a
recognized college of medicine;
(b) To determine and prescribe requirements for minimum physical
facilities of colleges of medicine, to wit: buildings, including hospitals,
equipment and supplies, apparatus, instruments, appliances,
laboratories, bed capacity for instruction purposes, operating and
delivery rooms, facilities for outpatient services, and others, used for
didactic and practical instruction in accordance with modern trends;
 (c) To determine and prescribe the minimum number and minimum
qualifications of teaching personnel, including student-teachers ratio;
(d) To determine and prescribe the minimum required curriculum
leading to the degree of Doctor of Medicine;
(e) To authorize the implementation of experimental medical
curriculum in a medical school that has exceptional faculty and
instrumental facilities. Such an experimental curriculum may prescribe
admission and graduation requirements other than those prescribed
in this Act; Provided, That only exceptional students shall be enrolled
in the experimental curriculum;
(f) To accept applications for certification for admission to a medical
school and keep a register of those issued said certificate; and to collect
from said applicants the amount of twenty-five pesos each which shall
accrue to the operating fund of the Board of Medical Education;
(g) To select, determine and approve hospitals or some departments
of the hospitals for training which comply with the minimum specific
physical facilities as provided in subparagraph (b) hereof; and
(h) To promulgate and prescribe and enforce the necessary rules and
regulations for the proper implementation of the foregoing functions.
(Emphasis supplied)
Section 7 prescribes certain minimum requirements for applicants to medical
schools:
Admission requirements. — The medical college may admit any
student who has not been convicted by any court of competent
jurisdiction of any offense involving moral turpitude and who
presents (a) a record of completion of a bachelor's degree in science or
arts; (b) a certificate of eligibility for entrance to a medical school from
29
the Board of Medical Education; (c) a certificate of good moral
character issued by two former professors in the college of liberal arts;
and (d) birth certificate. Nothing in this act shall be construed to inhibit
any college of medicine from establishing, in addition to the preceding,
other entrance requirements that may be deemed admissible.
xxx xxx x x x (Emphasis supplied)
MECS Order No. 52, s. 1985, issued by the then Minister of Education, Culture
and Sports and dated 23 August 1985, established a uniform admission test
called the National Medical Admission Test (NMAT) as an additional
requirement for issuance of a certificate of eligibility for admission into medical
schools of the Philippines, beginning with the school year 1986-1987. This
Order goes on to state that:
2. The NMAT, an aptitude test, is considered as an instrument toward
upgrading the selection of applicants for admission into the medical
schools and its calculated to improve the quality of medical education
in the country. The cutoff score for the successful applicants, based on
the scores on the NMAT, shall be determined every year by the Board
of Medical Education after consultation with the Association of
Philippine Medical Colleges. The NMAT rating of each applicant,
together with the other admission requirements as presently called for
under existing rules, shall serve as a basis for the issuance of the
prescribed certificate of elegibility for admission into the medical
colleges.
3. Subject to the prior approval of the Board of Medical
Education, each medical college may give other tests for applicants
who have been issued a corresponding certificate of eligibility for
admission that will yield information on other aspects of the applicant's
personality to complement the information derived from the NMAT.
xxx xxx xxx
 8. No applicant shall be issued the requisite Certificate of Eligibility for
Admission (CEA), or admitted for enrollment as first year student in any
medical college, beginning the school year, 1986-87, without the
required NMAT qualification as called for under this
Order. (Underscoring supplied)
Pursuant to MECS Order No. 52, s. 1985, the private respondent Center
conducted NMATs for entrance to medical colleges during the school year
1986-1987. In December 1986 and in April 1987, respondent Center conducted
the NMATs for admission to medical colleges during the school year
1987.1988. 1avvphi1
Petitioners raise the question of whether or not a writ of preliminary injunction
may be issued to enjoin the enforcement of Section 5 (a) and (f) of Republic Act
No. 2382, as amended, and MECS Order No. 52, s. 1985, pending resolution of
the issue of constitutionality of the assailed statute and administrative order.
We regard this issue as entirely peripheral in nature. It scarcely needs
documentation that a court would issue a writ of preliminary injunction only
when the petitioner assailing a statute or administrative order has made out a
case of unconstitutionality strong enough to overcome, in the mind of the
judge, the presumption of constitutionality, aside from showing a clear legal
right to the remedy sought. The fundamental issue is of course the
constitutionality of the statute or order assailed.
1. The petitioners invoke a number of provisions of the 1987 Constitution which
are, in their assertion, violated by the continued implementation of Section 5
(a) and (f) of Republic Act 2381, as amended, and MECS Order No. 52, s. 1985.
The provisions invoked read as follows:
(a) Article 11, Section 11: "The state values the dignity of every human
person and guarantees full respect of human rights. "
(b) ArticleII, Section l3: "The State recognizes the vital role of the youth
in nation building and shall promote and protect their physical, moral,
30
spiritual, intellectual and social well being. It shall inculcate in the youth
patriotism and nationalism, and encourage their involvement in public
and civic affairs."
(c) Article II, Section 17: "The State shall give priority to education,
science and technology, arts, culture and sports to foster patriotism
and nationalism, accelerate social progress and to promote total
human liberation and development. "
(d) Article XIV, Section l: "The State shall protect and promote the right
of all citizens to quality education at all levels and take appropriate
steps to make such education accessible to all. "
(e) Article XIV, Section 5 (3): "Every citizen has a right to select a
profession or course of study, subject to fair, reasonable and equitable
admission and academic requirements."
Article II of the 1987 Constitution sets forth in its second half certain "State
policies" which the government is enjoined to pursue and promote. The
petitioners here have not seriously undertaken to demonstrate to what extent
or in what manner the statute and the administrative order they assail collide
with the State policies embodied in Sections 11, 13 and 17. They have not, in
other words, discharged the burden of proof which lies upon them. This burden
is heavy enough where the constitutional provision invoked is relatively specific,
rather than abstract, in character and cast in behavioral or operational terms.
That burden of proof becomes of necessity heavier where the constitutional
provision invoked is cast, as the second portion of Article II is cast, in language
descriptive of basic policies, or more precisely, of basic objectives of State policy
and therefore highly generalized in tenor. The petitioners have not made their
case, even a prima facie case, and we are not compelled to speculate and to
imagine how the legislation and regulation impugned as unconstitutional could
possibly offend the constitutional provisions pointed to by the petitioners.
Turning to Article XIV, Section 1, of the 1987 Constitution, we note that once
more petitioners have failed to demonstrate that the statute and regulation
they assail in fact clash with that provision. On the contrary we may note-in
anticipation of discussion infra — that the statute and the regulation which
petitioners attack are in fact designed to promote "quality education" at the
level of professional schools. When one reads Section 1 in relation to Section 5
(3) of Article XIV as one must one cannot but note that the latter phrase of
Section 1 is not to be read with absolute literalness. The State is not really
enjoined to take appropriate steps to make quality education " accessible
to all who might for any number of reasons wish to enroll in a professional
school but rather merely to make such education accessible to all who qualify
under "fair, reasonable and equitable admission and academic requirements. "
2. In the trial court, petitioners had made the argument that Section 5 (a) and
(f) of Republic Act No. 2382, as amended, offend against the constitutional
principle which forbids the undue delegation of legislative power, by failing to
establish the necessary standard to be followed by the delegate, the Board of
Medical Education. The general principle of non-delegation of legislative power,
which both flows from the reinforces the more fundamental rule of the
separation and allocation of powers among the three great departments of
government,1 must be applied with circumspection in respect of statutes which
like the Medical Act of 1959, deal with subjects as obviously complex and
technical as medical education and the practice of medicine in our present day
world. Mr. Justice Laurel stressed this point 47 years ago in Pangasinan
Transportation Co., Inc. vs. The Public Service Commission:2
One thing, however, is apparent in the development of the principle of
separation of powers and that is that the maxim of delegatus non
potest delegare or delegate potestas non potest delegare, adopted this
practice (Delegibus et Consuetudiniis Anglia edited by G.E. Woodbine,
Yale University Press, 1922, Vol. 2, p. 167) but which is also recognized
in principle in the Roman Law (d. 17.18.3) has been made to adapt itself
to the complexities of modern government, giving rise to the adoption,
within certain limits of the principle of "subordinate legislation," not
only in the United States and England but in practically all modern
31
governments. (People vs. Rosenthal and Osmena [68 Phil. 318, 1939].
Accordingly, with the growing complexity of modern life, the
multiplication of the subjects of governmental regulation and
the increased difficulty of administering the laws, there is a constantly
growing tendency toward the delegation of greater power by the
legislature, and toward the approval of the practice by the courts." 3
The standards set for subordinate legislation in the exercise of rule making
authority by an administrative agency like the Board of Medical Education are
necessarily broad and highly abstract. As explained by then Mr. Justice
Fernando in Edu v. Ericta4 —
The standard may be either expressed or implied. If the former, the
non-delegation objection is easily met. The standard though does not
have to be spelled out specifically. It could be implied from the policy
and purpose of the act considered as a whole. In the Reflector Law,
clearly the legislative objective is public safety. What is sought to be
attained as in Calalang v. Williams is "safe transit upon the roads. 5
We believe and so hold that the necessary standards are set forth in Section 1
of the 1959 Medical Act: "the standardization and regulation of medical
education" and in Section 5 (a) and 7 of the same Act, the body of the statute
itself, and that these considered together are sufficient compliance with the
requirements of the non-delegation principle.
3. The petitioners also urge that the NMAT prescribed in MECS Order No. 52, s.
1985, is an "unfair, unreasonable and inequitable requirement," which results
in a denial of due process. Again, petitioners have failed to specify just what
factors or features of the NMAT render it "unfair" and "unreasonable" or
"inequitable." They appear to suggest that passing the NMAT is an unnecessary
requirement when added on top of the admission requirements set out in
Section 7 of the Medical Act of 1959, and other admission requirements
established by internal regulations of the various medical schools, public or
private. Petitioners arguments thus appear to relate to utility and wisdom or
desirability of the NMAT requirement. But constitutionality is essentially a
question of power or authority: this Court has neither commission or
competence to pass upon questions of the desirability or wisdom or utility of
legislation or administrative regulation. Those questions must be address to the
political departments of the government not to the courts.
There is another reason why the petitioners' arguments must fail: the legislative
and administrative provisions impugned by them constitute, to the mind of the
Court, a valid exercise of the police power of the state. The police power, it is
commonplace learning, is the pervasive and non-waivable power and authority
of the sovereign to secure and promote an the important interests and needs
— in a word, the public order — of the general community.6 An important
component of that public order is the health and physical safety and well being
of the population, the securing of which no one can deny is a legitimate
objective of governmental effort and regulation.7
Perhaps the only issue that needs some consideration is whether there is some
reasonable relation between the prescribing of passing the NMAT as a
condition for admission to medical school on the one hand, and the securing of
the health and safety of the general community, on the other hand. This
question is perhaps most usefully approached by recalling that the regulation
of the practice of medicine in all its branches has long been recognized as a
reasonable method of protecting the health and safety of the public. 8 That the
power to regulate and control the practice of medicine includes the power to
regulate admission to the ranks of those authorized to practice medicine, is also
well recognized. thus, legislation and administrative regulations requiring those
who wish to practice medicine first to take and pass medical board
examinations have long ago been recognized as valid exercises of governmental
power.9 Similarly, the establishment of minimum medical educational
requirements — i.e., the completion of prescribed courses in a recognized
medical school — for admission to the medical profession, has also been
sustained as a legitimate exercise of the regulatory authority of the state.10 What
we have before us in the instant case is closely related: the regulation of access
to medical schools. MECS Order No. 52, s. 1985, as noted earlier, articulates the
rationale of regulation of this type: the improvement of the professional and
32
technical quality of the graduates of medical schools, by upgrading the quality
of those admitted to the student body of the medical schools. That upgrading
is sought by selectivity in the process of admission, selectivity consisting, among
other things, of limiting admission to those who exhibit in the required degree
the aptitude for medical studies and eventually for medical practice. The need
to maintain, and the difficulties of maintaining, high standards in our
professional schools in general, and medical schools in particular, in the current
stage of our social and economic development, are widely known.
We believe that the government is entitled to prescribe an admission test like
the NMAT as a means for achieving its stated objective of "upgrading the
selection of applicants into [our] medical schools" and of "improv[ing] the
quality of medical education in the country." Given the widespread use today
of such admission tests in, for instance, medical schools in the United States of
America (the Medical College Admission Test [MCAT]11 and quite probably in
other countries with far more developed educational resources than our own,
and taking into account the failure or inability of the petitioners to even attempt
to prove otherwise, we are entitled to hold that the NMAT is reasonably related
to the securing of the ultimate end of legislation and regulation in this area.
That end, it is useful to recall, is the protection of the public from the potentially
deadly effects of incompetence and ignorance in those who would undertake
to treat our bodies and minds for disease or trauma.
4. Petitioners have contended, finally, that MECS Order No. 52, s. 1985, is in
conflict with the equal protection clause of the Constitution. More specifically,
petitioners assert that that portion of the MECS Order which provides that
the cutoff score for the successful applicants, based on the scores on
the NMAT, shall be determined every-year by the Board of Medical 11
Education after consultation with the Association of Philippine Medical
Colleges. (Emphasis supplied)
infringes the requirements of equal protection. They assert, in other words,
that students seeking admission during a given school year, e.g., 1987-1988,
when subjected to a different cutoff score than that established for an, e.g.,
earlier school year, are discriminated against and that this renders the MECS
Order "arbitrary and capricious." The force of this argument is more apparent
than real. Different cutoff scores for different school years may be dictated by
differing conditions obtaining during those years. Thus, the appropriate cutoff
score for a given year may be a function of such factors as the number of
students who have reached the cutoff score established the preceding year; the
number of places available in medical schools during the current year; the
average score attained during the current year; the level of difficulty of the test
given during the current year, and so forth. To establish a permanent and
immutable cutoff score regardless of changes in circumstances from year to
year, may wen result in an unreasonable rigidity. The above language in MECS
Order No. 52, far from being arbitrary or capricious, leaves the Board of Medical
Education with the measure of flexibility needed to meet circumstances as they
change.
We conclude that prescribing the NMAT and requiring certain minimum scores
therein as a condition for admission to medical schools in the Philippines, do
not constitute an unconstitutional imposition.
WHEREFORE, the Petition for certiorari is DISMISSED and the Order of the
respondent trial court denying the petition for a writ of preliminary injunction
is AFFIRMED. Costs against petitioners.
SO ORDERED.
5) G.R. No. L-24693 July 31, 1967
ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL
DEL MAR INC. and GO CHIU, petitioners-appellees,
33
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.
Panganiban, Abad and Associates Law Office for respondent-appellant.
J. M. Aruego, Tenchavez and Associates for intervenor-appellee.
FERNANDO, J.:
The principal question in this appeal from a judgment of the lower court in an
action for prohibition is whether Ordinance No. 4760 of the City of Manila is
violative of the due process clause. The lower court held that it is and adjudged
it "unconstitutional, and, therefore, null and void." For reasons to be more
specifically set forth, such judgment must be reversed, there being a failure of
the requisite showing to sustain an attack against its validity.
The petition for prohibition against Ordinance No. 4760 was filed on July 5,
1963 by the petitioners, Ermita-Malate Hotel and Motel Operators Association,
one of its members, Hotel del Mar Inc., and a certain Go Chiu, who is "the
president and general manager of the second petitioner" against the
respondent Mayor of the City of Manila who was sued in his capacity as such
"charged with the general power and duty to enforce ordinances of the City of
Manila and to give the necessary orders for the faithful execution and
enforcement of such ordinances." (par. 1). It was alleged that the petitioner
non-stock corporation is dedicated to the promotion and protection of the
interest of its eighteen (18) members "operating hotels and motels,
characterized as legitimate businesses duly licensed by both national and city
authorities, regularly paying taxes, employing and giving livelihood to not less
than 2,500 person and representing an investment of more than P3
million."1 (par. 2). It was then alleged that on June 13, 1963, the Municipal
Board of the City of Manila enacted Ordinance No. 4760, approved on June 14,
1963 by the then Vice-Mayor Herminio Astorga, who was at the time acting as
Mayor of the City of Manila. (par. 3).
After which the alleged grievances against the ordinance were set forth in
detail. There was the assertion of its being beyond the powers of the Municipal
Board of the City of Manila to enact insofar as it would regulate motels, on the
ground that in the revised charter of the City of Manila or in any other law, no
reference is made to motels; that Section 1 of the challenged ordinance is
unconstitutional and void for being unreasonable and violative of due process
insofar as it would impose P6,000.00 fee per annum for first class motels and
P4,500.00 for second class motels; that the provision in the same section which
would require the owner, manager, keeper or duly authorized representative
of a hotel, motel, or lodging house to refrain from entertaining or accepting any
guest or customer or letting any room or other quarter to any person or persons
without his filling up the prescribed form in a lobby open to public view at all
times and in his presence, wherein the surname, given name and middle name,
the date of birth, the address, the occupation, the sex, the nationality, the
length of stay and the number of companions in the room, if any, with the
name, relationship, age and sex would be specified, with data furnished as to
his residence certificate as well as his passport number, if any, coupled with a
certification that a person signing such form has personally filled it up and
affixed his signature in the presence of such owner, manager, keeper or duly
authorized representative, with such registration forms and records kept and
bound together, it also being provided that the premises and facilities of such
hotels, motels and lodging houses would be open for inspection either by the
City Mayor, or the Chief of Police, or their duly authorized representatives is
unconstitutional and void again on due process grounds, not only for being
arbitrary, unreasonable or oppressive but also for being vague, indefinite and
uncertain, and likewise for the alleged invasion of the right to privacy and the
guaranty against self-incrimination; that Section 2 of the challenged ordinance
classifying motels into two classes and requiring the maintenance of certain
minimum facilities in first class motels such as a telephone in each room, a
dining room or, restaurant and laundry similarly offends against the due
process clause for being arbitrary, unreasonable and oppressive, a conclusion
which applies to the portion of the ordinance requiring second class motels to
have a dining room; that the provision of Section 2 of the challenged ordinance
prohibiting a person less than 18 years old from being accepted in such hotels,
motels, lodging houses, tavern or common inn unless accompanied by parents
34
or a lawful guardian and making it unlawful for the owner, manager, keeper or
duly authorized representative of such establishments to lease any room or
portion thereof more than twice every 24 hours, runs counter to the due
process guaranty for lack of certainty and for its unreasonable, arbitrary and
oppressive character; and that insofar as the penalty provided for in Section 4
of the challenged ordinance for a subsequent conviction would, cause the
automatic cancellation of the license of the offended party, in effect causing
the destruction of the business and loss of its investments, there is once again
a transgression of the due process clause.
There was a plea for the issuance of preliminary injunction and for a final
judgment declaring the above ordinance null and void and unenforceable. The
lower court on July 6, 1963 issued a writ of preliminary injunction ordering
respondent Mayor to refrain from enforcing said Ordinance No. 4760 from and
after July 8, 1963.
In the a answer filed on August 3, 1963, there was an admission of the personal
circumstances regarding the respondent Mayor and of the fact that petitioners
are licensed to engage in the hotel or motel business in the City of Manila, of
the provisions of the cited Ordinance but a denial of its alleged nullity, whether
on statutory or constitutional grounds. After setting forth that the petition did
fail to state a cause of action and that the challenged ordinance bears a
reasonable relation, to a proper purpose, which is to curb immorality, a valid
and proper exercise of the police power and that only the guests or customers
not before the court could complain of the alleged invasion of the right to
privacy and the guaranty against self incrimination, with the assertion that the
issuance of the preliminary injunction ex parte was contrary to law, respondent
Mayor prayed for, its dissolution and the dismissal of the petition.
Instead of evidence being offered by both parties, there was submitted a
stipulation of facts dated September 28, 1964, which reads:
1. That the petitioners Ermita-Malate Hotel and Motel Operators
Association, Inc. and Hotel del Mar Inc. are duly organized and existing
under the laws of the Philippines, both with offices in the City of
Manila, while the petitioner Go Chin is the president and general
manager of Hotel del Mar Inc., and the intervenor Victor Alabanza is a
resident of Baguio City, all having the capacity to sue and be sued;
2. That the respondent Mayor is the duly elected and incumbent City
Mayor and chief executive of the City of Manila charged with the
general power and duty to enforce ordinances of the City of Manila
and to give the necessary orders for the faithful execution and
enforcement of such ordinances;
3. That the petitioners are duly licensed to engage in the business of
operating hotels and motels in Malate and Ermita districts in Manila;
4. That on June 13, 1963, the Municipal Board of the City of Manila
enacted Ordinance No. 4760, which was approved on June 14, 1963,
by Vice-Mayor Herminio Astorga, then the acting City Mayor of Manila,
in the absence of the respondent regular City Mayor, amending
sections 661, 662, 668-a, 668-b and 669 of the compilation of the
ordinances of the City of Manila besides inserting therein three new
sections. This ordinance is similar to the one vetoed by the respondent
Mayor (Annex A) for the reasons stated in its 4th Indorsement dated
February 15, 1963 (Annex B);
5. That the explanatory note signed by then Councilor Herminio
Astorga was submitted with the proposed ordinance (now Ordinance
4760) to the Municipal Board, copy of which is attached hereto as
Annex C;
6. That the City of Manila derived in 1963 an annual income of
P101,904.05 from license fees paid by the 105 hotels and motels
(including herein petitioners) operating in the City of Manila.
1äwphï1.ñët
35
Thereafter came a memorandum for respondent on January 22, 1965, wherein
stress was laid on the presumption of the validity of the challenged ordinance,
the burden of showing its lack of conformity to the Constitution resting on the
party who assails it, citing not only U.S. v. Salaveria, but likewise applicable
American authorities. Such a memorandum likewise refuted point by point the
arguments advanced by petitioners against its validity. Then barely two weeks
later, on February 4, 1965, the memorandum for petitioners was filed
reiterating in detail what was set forth in the petition, with citations of what
they considered to be applicable American authorities and praying for a
judgment declaring the challenged ordinance "null and void and
unenforceable" and making permanent the writ of preliminary injunction
issued.
After referring to the motels and hotels, which are members of the petitioners
association, and referring to the alleged constitutional questions raised by the
party, the lower court observed: "The only remaining issue here being purely a
question of law, the parties, with the nod of the Court, agreed to file
memoranda and thereafter, to submit the case for decision of the Court." It
does appear obvious then that without any evidence submitted by the parties,
the decision passed upon the alleged infirmity on constitutional grounds of the
challenged ordinance, dismissing as is undoubtedly right and proper the
untenable objection on the alleged lack of authority of the City of Manila to
regulate motels, and came to the conclusion that "the challenged Ordinance
No. 4760 of the City of Manila, would be unconstitutional and, therefore, null
and void." It made permanent the preliminary injunction issued against
respondent Mayor and his agents "to restrain him from enforcing the ordinance
in question." Hence this appeal.
As noted at the outset, the judgment must be reversed. A decent regard for
constitutional doctrines of a fundamental character ought to have admonished
the lower court against such a sweeping condemnation of the challenged
ordinance. Its decision cannot be allowed to stand, consistently with what has
hitherto been the accepted standards of constitutional adjudication, in both
procedural and substantive aspects.
Primarily what calls for a reversal of such a decision is the absence of any
evidence to offset the presumption of validity that attaches to a challenged
statute or ordinance. As was expressed categorically by Justice Malcolm: "The
presumption is all in favor of validity x x x . The action of the elected
representatives of the people cannot be lightly set aside. The councilors must,
in the very nature of things, be familiar with the necessities of their particular
municipality and with all the facts and circumstances which surround the
subject and necessitate action. The local legislative body, by enacting the
ordinance, has in effect given notice that the regulations are essential to the
well being of the people x x x . The Judiciary should not lightly set aside
legislative action when there is not a clear invasion of personal or property
rights under the guise of police regulation.2
It admits of no doubt therefore that there being a presumption of validity, the
necessity for evidence to rebut it is unavoidable, unless the statute or ordinance
is void on its face which is not the case here. The principle has been nowhere
better expressed than in the leading case of O'Gorman & Young v. Hartford Fire
Insurance Co.,3 where the American Supreme Court through Justice Brandeis
tersely and succinctly summed up the matter thus: The statute here questioned
deals with a subject clearly within the scope of the police power. We are asked
to declare it void on the ground that the specific method of regulation
prescribed is unreasonable and hence deprives the plaintiff of due process of
law. As underlying questions of fact may condition the constitutionality of
legislation of this character, the resumption of constitutionality must prevail in
the absence of some factual foundation of record for overthrowing the
statute." No such factual foundation being laid in the present case, the lower
court deciding the matter on the pleadings and the stipulation of facts, the
presumption of validity must prevail and the judgment against the ordinance
set aside.
Nor may petitioners assert with plausibility that on its face the ordinance is
fatally defective as being repugnant to the due process clause of the
Constitution. The mantle of protection associated with the due process
guaranty does not cover petitioners. This particular manifestation of a police
power measure being specifically aimed to safeguard public morals is immune
36
from such imputation of nullity resting purely on conjecture and unsupported
by anything of substance. To hold otherwise would be to unduly restrict and
narrow the scope of police power which has been properly characterized as the
most essential, insistent and the least limitable of powers,4 extending as it does
"to all the great public needs."5 It would be, to paraphrase another leading
decision, to destroy the very purpose of the state if it could be deprived or
allowed itself to be deprived of its competence to promote public health, public
morals, public safety and the genera welfare.6 Negatively put, police power is
"that inherent and plenary power in the State which enables it to prohibit all
that is hurt full to the comfort, safety, and welfare of society.7
There is no question but that the challenged ordinance was precisely enacted
to minimize certain practices hurtful to public morals. The explanatory note of
the Councilor Herminio Astorga included as annex to the stipulation of facts,
speaks of the alarming increase in the rate of prostitution, adultery and
fornication in Manila traceable in great part to the existence of motels, which
"provide a necessary atmosphere for clandestine entry, presence and exit" and
thus become the "ideal haven for prostitutes and thrill-seekers." The challenged
ordinance then proposes to check the clandestine harboring of transients and
guests of these establishments by requiring these transients and guests to fill
up a registration form, prepared for the purpose, in a lobby open to public view
at all times, and by introducing several other amendatory provisions calculated
to shatter the privacy that characterizes the registration of transients and
guests." Moreover, the increase in the licensed fees was intended to discourage
"establishments of the kind from operating for purpose other than legal" and
at the same time, to increase "the income of the city government." It would
appear therefore that the stipulation of facts, far from sustaining any attack
against the validity of the ordinance, argues eloquently for it.
It is a fact worth noting that this Court has invariably stamped with the seal of
its approval, ordinances punishing vagrancy and classifying a pimp or procurer
as a vagrant;8 provide a license tax for and regulating the maintenance or
operation of public dance halls;9 prohibiting gambling;10 prohibiting
jueteng;11 and monte;12 prohibiting playing of panguingui on days other than
Sundays or legal holidays;13 prohibiting the operation of pinball machines;14 and
prohibiting any person from keeping, conducting or maintaining an opium joint
or visiting a place where opium is smoked or otherwise used,15 all of which are
intended to protect public morals.
On the legislative organs of the government, whether national or local,
primarily rest the exercise of the police power, which, it cannot be too often
emphasized, is the power to prescribe regulations to promote the health,
morals, peace, good order, safety and general welfare of the people. In view of
the requirements of due process, equal protection and other applicable
constitutional guaranties however, the exercise of such police power insofar as
it may affect the life, liberty or property of any person is subject to judicial
inquiry. Where such exercise of police power may be considered as either
capricious, whimsical, unjust or unreasonable, a denial of due process or a
violation of any other applicable constitutional guaranty may call for correction
by the courts.
We are thus led to considering the insistent, almost shrill tone, in which the
objection is raised to the question of due process.16 There is no controlling and
precise definition of due process. It furnishes though a standard to which the
governmental action should conform in order that deprivation of life, liberty or
property, in each appropriate case, be valid. What then is the standard of due
process which must exist both as a procedural and a substantive requisite to
free the challenged ordinance, or any governmental action for that matter,
from the imputation of legal infirmity sufficient to spell its doom? It is
responsiveness to the supremacy of reason, obedience to the dictates of
justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To
satisfy the due process requirement, official action, to paraphrase Cardozo,
must not outrun the bounds of reason and result in sheer oppression. Due
process is thus hostile to any official action marred by lack of reasonableness.
Correctly it has been identified as freedom from arbitrariness. It is the
embodiment of the sporting idea of fair play.17 It exacts fealty "to those strivings
for justice" and judges the act of officialdom of whatever branch "in the light of
reason drawn from considerations of fairness that reflect [democratic]
traditions of legal and political thought."18 It is not a narrow or "technical
conception with fixed content unrelated to time, place and
37
circumstances,"19 decisions based on such a clause requiring a "close and
perceptive inquiry into fundamental principles of our society."20 Questions of
due process are not to be treated narrowly or pedantically in slavery to form or
phrases.21
It would thus be an affront to reason to stigmatize an ordinance enacted
precisely to meet what a municipal lawmaking body considers an evil of rather
serious proportion an arbitrary and capricious exercise of authority. It would
seem that what should be deemed unreasonable and what would amount to
an abdication of the power to govern is inaction in the face of an admitted
deterioration of the state of public morals. To be more specific, the Municipal
Board of the City of Manila felt the need for a remedial measure. It provided it
with the enactment of the challenged ordinance. A strong case must be found
in the records, and, as has been set forth, none is even attempted here to attach
to an ordinance of such character the taint of nullity for an alleged failure to
meet the due process requirement. Nor does it lend any semblance even of
deceptive plausibility to petitioners' indictment of Ordinance No. 4760 on due
process grounds to single out such features as the increased fees for motels
and hotels, the curtailment of the area of freedom to contract, and, in certain
particulars, its alleged vagueness.
Admittedly there was a decided increase of the annual license fees provided for
by the challenged ordinance for hotels and motels, 150% for the former and
over 200% for the latter, first-class motels being required to pay a P6,000
annual fee and second-class motels, P4,500 yearly. It has been the settled law
however, as far back as 1922 that municipal license fees could be classified into
those imposed for regulating occupations or regular enterprises, for the
regulation or restriction of non-useful occupations or enterprises and for
revenue purposes only.22 As was explained more in detail in the above Cu
Unjieng case: (2) Licenses for non-useful occupations are also incidental to the
police power and the right to exact a fee may be implied from the power to
license and regulate, but in fixing amount of the license fees the municipal
corporations are allowed a much wider discretion in this class of cases than in
the former, and aside from applying the well-known legal principle that
municipal ordinances must not be unreasonable, oppressive, or tyrannical,
courts have, as a general rule, declined to interfere with such discretion. The
desirability of imposing restraint upon the number of persons who might
otherwise engage in non-useful enterprises is, of course, generally an important
factor in the determination of the amount of this kind of license fee. Hence
license fees clearly in the nature of privilege taxes for revenue have frequently
been upheld, especially in of licenses for the sale of liquors. In fact, in the latter
cases the fees have rarely been declared unreasonable.23
Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the
doctrine earlier announced by the American Supreme Court that taxation may
be made to implement the state's police power. Only the other day, this Court
had occasion to affirm that the broad taxing authority conferred by the Local
Autonomy Act of 1959 to cities and municipalities is sufficiently plenary to cover
a wide range of subjects with the only limitation that the tax so levied is for
public purposes, just and uniform.25
As a matter of fact, even without reference to the wide latitude enjoyed by the
City of Manila in imposing licenses for revenue, it has been explicitly held in one
case that "much discretion is given to municipal corporations in determining
the amount," here the license fee of the operator of a massage clinic, even if it
were viewed purely as a police power measure.26 The discussion of this
particular matter may fitly close with this pertinent citation from another
decision of significance: "It is urged on behalf of the plaintiffs-appellees that the
enforcement of the ordinance could deprive them of their lawful occupation
and means of livelihood because they can not rent stalls in the public markets.
But it appears that plaintiffs are also dealers in refrigerated or cold storage
meat, the sale of which outside the city markets under certain conditions is
permitted x x x . And surely, the mere fact, that some individuals in the
community may be deprived of their present business or a particular mode of
earning a living cannot prevent the exercise of the police power. As was said in
a case, persons licensed to pursue occupations which may in the public need
and interest be affected by the exercise of the police power embark in these
occupations subject to the disadvantages which may result from the legal
exercise of that power."27
38
Nor does the restriction on the freedom to contract, insofar as the challenged
ordinance makes it unlawful for the owner, manager, keeper or duly authorized
representative of any hotel, motel, lodging house, tavern, common inn or the
like, to lease or rent room or portion thereof more than twice every 24 hours,
with a proviso that in all cases full payment shall be charged, call for a different
conclusion. Again, such a limitation cannot be viewed as a transgression against
the command of due process. It is neither unreasonable nor arbitrary. Precisely
it was intended to curb the opportunity for the immoral or illegitimate use to
which such premises could be, and, according to the explanatory note, are
being devoted. How could it then be arbitrary or oppressive when there
appears a correspondence between the undeniable existence of an undesirable
situation and the legislative attempt at correction. Moreover, petitioners
cannot be unaware that every regulation of conduct amounts to curtailment of
liberty which as pointed out by Justice Malcolm cannot be absolute. Thus: "One
thought which runs through all these different conceptions of liberty is plainly
apparent. It is this: 'Liberty' as understood in democracies, is not license; it is
'liberty regulated by law.' Implied in the term is restraint by law for the good of
the individual and for the greater good of the peace and order of society and
the general well-being. No man can do exactly as he pleases. Every man must
renounce unbridled license. The right of the individual is necessarily subject to
reasonable restraint by general law for the common good x x x The liberty of
the citizen may be restrained in the interest of the public health, or of the public
order and safety, or otherwise within the proper scope of the police power."28
A similar observation was made by Justice Laurel: "Public welfare, then, lies at
the bottom of the enactment of said law, and the state in order to promote the
general welfare may interfere with personal liberty, with property, and with
business and occupations. Persons and property may be subjected to all kinds
of restraints and burdens, in order to secure the general comfort, health, and
prosperity of the state x x x To this fundamental aim of our Government the
rights of the individual are subordinated. Liberty is a blessing without which life
is a misery, but liberty should not be made to prevail over authority because
then society will fall into anarchy. Neither should authority be made to prevail
over liberty because then the individual will fall into slavery. The citizen should
achieve the required balance of liberty and authority in his mind through
education and personal discipline, so that there may be established the
resultant equilibrium, which means peace and order and happiness for all.29
It is noteworthy that the only decision of this Court nullifying legislation because
of undue deprivation of freedom to contract, People v. Pomar,30 no longer
"retains its virtuality as a living principle. The policy of laissez faire has to some
extent given way to the assumption by the government of the right of
intervention even in contractual relations affected with public interest. 31 What
may be stressed sufficiently is that if the liberty involved were freedom of the
mind or the person, the standard for the validity of governmental acts is much
more rigorous and exacting, but where the liberty curtailed affects at the most
rights of property, the permissible scope of regulatory measure is wider.32 How
justify then the allegation of a denial of due process?
Lastly, there is the attempt to impugn the ordinance on another due process
ground by invoking the principles of vagueness or uncertainty. It would appear
from a recital in the petition itself that what seems to be the gravamen of the
alleged grievance is that the provisions are too detailed and specific rather than
vague or uncertain. Petitioners, however, point to the requirement that a guest
should give the name, relationship, age and sex of the companion or
companions as indefinite and uncertain in view of the necessity for determining
whether the companion or companions referred to are those arriving with the
customer or guest at the time of the registry or entering the room With him at
about the same time or coming at any indefinite time later to join him; a proviso
in one of its sections which cast doubt as to whether the maintenance of a
restaurant in a motel is dependent upon the discretion of its owners or
operators; another proviso which from their standpoint would require a guess
as to whether the "full rate of payment" to be charged for every such lease
thereof means a full day's or merely a half-day's rate. It may be asked, do these
allegations suffice to render the ordinance void on its face for alleged
vagueness or uncertainty? To ask the question is to answer it. From Connally v.
General Construction Co.33 to Adderley v. Florida,34 the principle has been
consistently upheld that what makes a statute susceptible to such a charge is
an enactment either forbidding or requiring the doing of an act that men of
common intelligence must necessarily guess at its meaning and differ as to its
39
application. Is this the situation before us? A citation from Justice Holmes would
prove illuminating: "We agree to all the generalities about not supplying
criminal laws with what they omit but there is no canon against using common
sense in construing laws as saying what they obviously mean."35
That is all then that this case presents. As it stands, with all due allowance for
the arguments pressed with such vigor and determination, the attack against
the validity of the challenged ordinance cannot be considered a success. Far
from it. Respect for constitutional law principles so uniformly held and so
uninterruptedly adhered to by this Court compels a reversal of the appealed
decision.
Wherefore, the judgment of the lower court is reversed and the injunction
issued lifted forthwith. With costs.
6) G.R. No. L-42571-72 July 25, 1983
VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO CORPUZ, TERESITA CALOT,
ROSALIA FERNANDEZ, ELIZABETH VELASCO, NANETTE VILLANUEVA, HONORATO BUENAVENTURA,
RUBEN DE CASTRO, VICENTE ROXAS, RICARDO DAMIAN, DOMDINO ROMDINA, ANGELINA
OBLIGACION, CONRADO GREGORIO, TEODORO REYES, LYDIA ATRACTIVO, NAPOLEON MENDOZA,
PERFECTO GUMATAY, ANDRES SABANGAN, ROSITA DURAN, SOCORRO BERNARDEZ, and PEDRO
GABRIEL, petitioners,
vs.
THE HONORABLE EDGARDO L. PARAS, MATIAS RAMIREZ as the Municipal Mayor, MARIO
MENDOZA as the Municipal Vice-Mayor, and THE MUNICIPAL COUNCIL OF BOCAUE,
BULACAN, respondents.
Federico N. Alday for petitioners.
Dakila F. Castro for respondents.
FERNANDO, C.J.:
The crucial question posed by this certiorari proceeding is whether or not a
municipal corporation, Bocaue, Bulacan, represented by respondents, 1 can,
prohibit the exercise of a lawful trade, the operation of night clubs, and the
pursuit of a lawful occupation, such clubs employing hostesses. It is contended
that the ordinance assailed as invalid is tainted with nullity, the municipality
being devoid of power to prohibit a lawful business, occupation or calling,
petitioners at the same time alleging that their rights to due process and equal
protection of the laws were violated as the licenses previously given to them
was in effect withdrawn without judicial hearing. 2
The assailed ordinance 3 is worded as follows: "Section 1.— Title of Ordinance.—
This Ordinance shall be known and may be cited as the [Prohibition and Closure
Ordinance] of Bocaue, Bulacan. Section 2. — Definitions of Terms — (a) 'Night
Club' shall include any place or establishment selling to the public food or drinks
where customers are allowed to dance. (b) 'Cabaret' or 'Dance Hall' shall
include any place or establishment where dancing is permitted to the public
and where professional hostesses or hospitality girls and professional dancers
are employed. (c) 'Professional hostesses' or 'hospitality girls' shall include any
woman employed by any of the establishments herein defined to entertain
guests and customers at their table or to dance with them. (d) 'Professional
dancer' shall include any woman who dances at any of the establishments
herein defined for a fee or remuneration paid directly or indirectly by the
operator or by the persons she dances with. (e) 'Operator' shall include the
owner, manager, administrator or any person who operates and is responsible
for the operation of any night club, cabaret or dance hall. Section 3.
— Prohibition in the Issuance and Renewal of Licenses, Permits. — Being the
principal cause in the decadence of morality and because of their other adverse
effects on this community as explained above, no operator of night clubs,
cabarets or dance halls shall henceforth be issued permits/licenses to operate
within the jurisdiction of the municipality and no license/permit shall be issued
to any professional hostess, hospitality girls and professional dancer for
employment in any of the aforementioned establishments. The prohibition in
the issuance of licenses/permits to said persons and operators of said
establishments shall include prohibition in the renewal thereof. Section
4.— Revocation of Permits and Licenses.— The licenses and permits issued to
40
operators of night clubs, cabarets or dance halls which are now in operation
including permits issued to professional hostesses, hospitality girls and
professional dancers are hereby revoked upon the expiration of the thirty-day
period given them as provided in Section 8 hereof and thenceforth, the
operation of these establishments within the jurisdiction of the municipality
shall be illegal. Section 5.— Penalty in case of violation. — Violation of any of
the provisions of this Ordinance shall be punishable by imprisonment not
exceeding three (3) months or a fine not exceeding P200.00 or both at the
discretion of the Court. If the offense is committed by a juridical entity, the
person charged with the management and/or operation thereof shall be liable
for the penalty provided herein. Section 6. — Separability Clause.— If, for any
reason, any section or provision of this Ordinance is held unconstitutional or
invalid, no other section or provision hereof shall be affected thereby. Section
7.— Repealing Clause.— All ordinance, resolutions, circulars, memoranda or
parts thereof that are inconsistent with the provisions of this Ordinance are
hereby repealed. Section 8.— Effectivity.— This Ordinance shall take effect
immediately upon its approval; provided, however, that operators of night
clubs, cabarets and dance halls now in operation including professional
hostesses, hospitality girls and professional dancers are given a period of thirty
days from the approval hereof within which to wind up their businesses and
comply with the provisions of this Ordinance." 4
On November 5, 1975, two cases for prohibition with preliminary injunction
were filed with the Court of First Instance of Bulacan. 5 The grounds alleged
follow:
1. Ordinance No. 84 is null and void as a municipality has no authority to
prohibit a lawful business, occupation or calling.
2. Ordinance No. 84 is violative of the petitioners' right to due process and the
equal protection of the law, as the license previously given to petitioners was
in effect withdrawn without judicial hearing. 3. That under Presidential Decree
No. 189, as amended, by Presidential Decree No. 259, the power to license and
regulate tourist-oriented businesses including night clubs, has been transferred
to the Department of Tourism." 6 The cases were assigned to respondent Judge,
now Associate Justice Paras of the Intermediate Appellate Court, who issued a
restraining order on November 7, 1975. The answers were thereafter filed. It
was therein alleged: " 1. That the Municipal Council is authorized by law not
only to regulate but to prohibit the establishment, maintenance and operation
of night clubs invoking Section 2243 of the RAC, CA 601, Republic Acts Nos. 938,
978 and 1224. 2. The Ordinance No. 84 is not violative of petitioners' right to
due process and the equal protection of the law, since property rights are
subordinate to public interests. 3. That Presidential Decree No. 189, as
amended, did not deprive Municipal Councils of their jurisdiction to regulate or
prohibit night clubs." 7 There was the admission of the following facts as having
been established: "l. That petitioners Vicente de la Cruz, et al. in Civil Case No.
4755-M had been previously issued licenses by the Municipal Mayor of Bocaue-
petitioner Jose Torres III, since 1958; petitioner Vicente de la Cruz, since 1960;
petitioner Renato Alipio, since 1961 and petitioner Leoncio Corpuz, since 1972;
2. That petitioners had invested large sums of money in their businesses; 3. That
the night clubs are well-lighted and have no partitions, the tables being near
each other; 4. That the petitioners owners/operators of these clubs do not
allow the hospitality girls therein to engage in immoral acts and to go out with
customers; 5. That these hospitality girls are made to go through periodic
medical check-ups and not one of them is suffering from any venereal disease
and that those who fail to submit to a medical check-up or those who are found
to be infected with venereal disease are not allowed to work; 6. That the crime
rate there is better than in other parts of Bocaue or in other towns of
Bulacan." 8 Then came on January 15, 1976 the decision upholding the
constitutionality and validity of Ordinance No. 84 and dismissing the cases.
Hence this petition for certiorari by way of appeal.
In an exhaustive as well as scholarly opinion, the lower court dismissed the
petitions. Its rationale is set forth in the opening paragraph thus: "Those who
lust cannot last. This in essence is why the Municipality of Bocaue, Province of
Bulacan, stigmatized as it has been by innuendos of sexual titillation and fearful
of what the awesome future holds for it, had no alternative except to order thru
its legislative machinery, and even at the risk of partial economic dislocation,
the closure of its night clubs and/or cabarets. This in essence is also why this
41
Court, obedient to the mandates of good government, and cognizant of the
categorical imperatives of the current legal and social revolution, hereby
[upholds] in the name of police power the validity and constitutionality of
Ordinance No. 84, Series of 1975, of the Municipal Council of Bocaue, Bulacan.
The restraining orders heretofore issued in these two cases are therefore
hereby rifted, effective the first day of February, 1976, the purpose of the grace
period being to enable the petitioners herein to apply to the proper appellate
tribunals for any contemplated redress."9 This Court is, however, unable to
agree with such a conclusion and for reasons herein set forth, holds that
reliance on the police power is insufficient to justify the enactment of the
assailed ordinance. It must be declared null and void.
1. Police power is granted to municipal corporations in general terms as
follows: "General power of council to enact ordinances and make regulations. -
The municipal council shall enact such ordinances and make such regulations,
not repugnant to law, as may be necessary to carry into effect and discharge
the powers and duties conferred upon it by law and such as shall seem
necessary and proper to provide for the health and safety, promote the
prosperity, improve the morals, peace, good order, comfort, and convenience
of the municipality and the inhabitants thereof, and for the protection of
property therein." 10 It is practically a reproduction of the former Section 39 of
Municipal Code.11 An ordinance enacted by virtue thereof, according to Justice
Moreland, speaking for the Court in the leading case of United States v.
Abendan 12 "is valid, unless it contravenes the fundamental law of the Philippine
Islands, or an Act of the Philippine Legislature, or unless it is against public
policy, or is unreasonable, oppressive, partial, discriminating, or in derogation
of common right. Where the power to legislate upon a given subject, and the
mode of its exercise and the details of such legislation are not prescribed, the
ordinance passed pursuant thereto must be a reasonable exercise of the power,
or it will be pronounced invalid." 13 In another leading case, United States v.
Salaveria, 14 the ponente this time being Justice Malcolm, where the present
Administrative Code provision was applied, it was stated by this Court: "The
general welfare clause has two branches: One branch attaches itself to the main
trunk of municipal authority, and relates to such ordinances and regulations as
may be necessary to carry into effect and discharge the powers and duties
conferred upon the municipal council by law. With this class we are not here
directly concerned. The second branch of the clause is much more independent
of the specific functions of the council which are enumerated by law. It
authorizes such ordinances as shall seem necessary and proper to provide for
the health and safety, promote the prosperity, improve the morals, peace, good
order, comfort, and convenience of the municipality and the inhabitants
thereof, and for the protection of property therein.' It is a general rule that
ordinances passed by virtue of the implied power found in the general welfare
clause must be reasonable, consonant with the general powersand purposes of
the corporation, and not inconsistent with the laws or policy of the State." 15 If
night clubs were merely then regulated and not prohibited, certainly the
assailed ordinance would pass the test of validity. In the two leading cases
above set forth, this Court had stressed reasonableness, consonant with the
general powers and purposes of municipal corporations, as well as consistency
with the laws or policy of the State. It cannot be said that such a sweeping
exercise of a lawmaking power by Bocaue could qualify under the term
reasonable. The objective of fostering public morals, a worthy and desirable
end can be attained by a measure that does not encompass too wide a field.
Certainly the ordinance on its face is characterized by overbreadth. The
purpose sought to be achieved could have been attained by reasonable
restrictions rather than by an absolute prohibition. The admonition in Salaveria
should be heeded: "The Judiciary should not lightly set aside legislative action
when there is not a clear invasion of personal or property rights under the guise
of police regulation." 16 It is clear that in the guise of a police regulation, there
was in this instance a clear invasion of personal or property rights, personal in
the case of those individuals desirous of patronizing those night clubs and
property in terms of the investments made and salaries to be earned by those
therein employed.
2. The decision now under review refers to Republic Act No. 938 as
amended. 17 It was originally enacted on June 20, 1953. It is entitled: "AN ACT
GRANTING MUNICIPAL OR CITY BOARDS AND COUNCILS THE POWER TO
REGULATE THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF CERTAIN
PLACES OF AMUSEMENT WITHIN THEIR RESPECTIVE TERRITORIAL
JURISDICTIONS.' 18 Its first section insofar as pertinent reads: "The municipal or
42
city board or council of each chartered city shall have the power to regulate by
ordinance the establishment, maintenance and operation of night clubs,
cabarets, dancing schools, pavilions, cockpits, bars, saloons, bowling alleys,
billiard pools, and other similar places of amusement within its territorial
jurisdiction: ... " 19Then on May 21, 1954, the first section was amended to
include not merely "the power to regulate, but likewise "Prohibit ... " 20 The title,
however, remained the same. It is worded exactly as Republic Act No. 938. It is
to be admitted that as thus amended, if only the above portion of the Act were
considered, a municipal council may go as far as to prohibit the operation of
night clubs. If that were all, then the appealed decision is not devoid of support
in law. That is not all, however. The title was not in any way altered. It was not
changed one whit. The exact wording was followed. The power granted remains
that of regulation, not prohibition. There is thus support for the view advanced
by petitioners that to construe Republic Act No. 938 as allowing the prohibition
of the operation of night clubs would give rise to a constitutional question. The
Constitution mandates: "Every bill shall embrace only one subject which shall
be expressed in the title thereof. " 21 Since there is no dispute as the title limits
the power to regulating, not prohibiting, it would result in the statute being
invalid if, as was done by the Municipality of Bocaue, the operation of a night
club was prohibited. There is a wide gap between the exercise of a regulatory
power "to provide for the health and safety, promote the prosperity, improve
the morals, 22 in the language of the Administrative Code, such competence
extending to all "the great public needs, 23 to quote from Holmes, and to
interdict any calling, occupation, or enterprise. In accordance with the well-
settled principle of constitutional construction that between two possible
interpretations by one of which it will be free from constitutional infirmity and
by the other tainted by such grave defect, the former is to be preferred. A
construction that would save rather than one that would affix the seal of doom
certainly commends itself. We have done so before We do so again. 24
3. There is reinforcement to the conclusion reached by virtue of a specific
provision of the recently-enacted Local Government Code. 25 The general
welfare clause, a reiteration of the Administrative Code provision, is set forth in
the first paragraph of Section 149 defining the powers and duties of
the sangguniang bayan. It read as follows: "(a) Enact such ordinances and issue
such regulations as may be necessary to carry out and discharge the
responsibilities conferred upon it by law, and such as shall be necessary and
proper to provide for the health, safety, comfort and convenience, maintain
peace and order, improve public morals, promote the prosperity and general
welfare of the municipality and the inhabitants thereof, and insure the
protection of property therein; ..." 26 There are in addition provisions that may
have a bearing on the question now before this Court. Thus the sangguniang
bayanshall "(rr) Regulate cafes, restaurants, beer-houses, hotels, motels, inns,
pension houses and lodging houses, except travel agencies, tourist guides,
tourist transports, hotels, resorts, de luxe restaurants, and tourist inns of
international standards which shall remain under the licensing and regulatory
power of the Ministry of Tourism which shall exercise such authority without
infringing on the taxing or regulatory powers of the municipality; (ss) Regulate
public dancing schools, public dance halls, and sauna baths or massage parlors;
(tt) Regulate the establishment and operation of billiard pools, theatrical
performances, circuses and other forms of entertainment; ..." 27 It is clear that
municipal corporations cannot prohibit the operation of night clubs. They may
be regulated, but not prevented from carrying on their business. It would be,
therefore, an exercise in futility if the decision under review were sustained. All
that petitioners would have to do is to apply once more for licenses to operate
night clubs. A refusal to grant licenses, because no such businesses could legally
open, would be subject to judicial correction. That is to comply with the
legislative will to allow the operation and continued existence of night clubs
subject to appropriate regulations. In the meanwhile, to compel petitioners to
close their establishments, the necessary result of an affirmance, would
amount to no more than a temporary termination of their business. During such
time, their employees would undergo a period of deprivation. Certainly, if such
an undesirable outcome can be avoided, it should be. The law should not be
susceptible to the reproach that it displays less than sympathetic concern for
the plight of those who, under a mistaken appreciation of a municipal power,
were thus left without employment. Such a deplorable consequence is to be
avoided. If it were not thus, then the element of arbitrariness enters the
picture. That is to pay less, very much less, than full deference to the due
process clause with its mandate of fairness and reasonableness.
43
4. The conclusion reached by this Court is not to be interpreted as a retreat
from its resolute stand sustaining police power legislation to promote public
morals. The commitment to such an Ideal forbids such a backward step.
Legislation of that character is deserving of the fullest sympathy from the
judiciary. Accordingly, the judiciary has not been hesitant to lend the weight of
its support to measures that can be characterized as falling within that aspect
of the police power. Reference is made by respondents to Ermita-Malate Hotel
and Motel Operators Association, Inc. v. City Mayor of Manila. 28 There is a
misapprehension as to what was decided by this Court. That was a regulatory
measure. Necessarily, there was no valid objection on due process or equal
protection grounds. It did not prohibit motels. It merely regulated the mode in
which it may conduct business in order precisely to put an end to practices
which could encourage vice and immorality. This is an entirely different case.
What was involved is a measure not embraced within the regulatory power but
an exercise of an assumed power to prohibit. Moreover, while it was pointed
out in the aforesaid Ermita-Malate Hotel and Motel Operators Association, Inc.
decision that there must be a factual foundation of invalidity, it was likewise
made clear that there is no need to satisfy such a requirement if a statute were
void on its face. That it certainly is if the power to enact such ordinance is at the
most dubious and under the present Local Government Code non-existent.
WHEREFORE, the writ of certiorari is granted and the decision of the lower
court dated January 15, 1976 reversed, set aside, and nullied. Ordinance No.
84, Series of 1975 of the Municipality of Bocaue is declared void and
unconstitutional. The temporary restraining order issued by this Court is hereby
made permanent. No costs.
7) G.R. No. L-24153 February 14, 1983
TOMAS VELASCO, LOURDES RAMIREZ, SY PIN, EDMUNDO UNSON, APOLONIA
RAMIREZ and LOURDES LOMIBAO, as component members of the STA. CRUZ
BARBERSHOP ASSOCIATION, in their own behalf and in representation of the
other owners of barbershops in the City of Manila, petitioners-appellants,
vs.HON. ANTONIO J. VILLEGAS, City Mayor of Manila, HON. HERMINIO A.
ASTORGA, Vice-Mayor and Presiding Officer of the Municipal Board in relation to
Republic Act 4065, THE MUNICIPAL BOARD OF THE CITY OF MANILA and
EDUARDO QUINTOS SR., Chief of Police of the City of Manila, respondents-
appellees.
Leonardo L. Arguelles for respondent-appellant.
FERNANDO, C.J.:
This is an appeal from an order of the lower court dismissing a suit for
declaratory relief challenging the constitutionality based on Ordinance No.
4964 of the City of Manila, the contention being that it amounts to a deprivation
of property of petitioners-appellants of their means of livelihood without due
process of law. The assailed ordinance is worded thus: "It shall be prohibited
for any operator of any barber shop to conduct the business of massaging
customers or other persons in any adjacent room or rooms of said barber shop,
or in any room or rooms within the same building where the barber shop is
located as long as the operator of the barber shop and the room where
massaging is conducted is the same person." 1 As noted in the appealed order,
petitioners-appellants admitted that criminal cases for the violation of this
ordinance had been previously filed and decided. The lower court, therefore,
held that a petition for declaratory relief did not lie, its availability being
dependent on there being as yet no case involving such issue having been filed. 2
Even if such were not the case, the attack against the validity cannot succeed.
As pointed out in the brief of respondents-appellees, it is a police power
measure. The objectives behind its enactment are: "(1) To be able to impose
payment of the license fee for engaging in the business of massage clinic under
Ordinance No. 3659 as amended by Ordinance 4767, an entirely different
measure than the ordinance regulating the business of barbershops and, (2) in
order to forestall possible immorality which might grow out of the construction
of separate rooms for massage of customers." 3 This Court has been most liberal
44
in sustaining ordinances based on the general welfare clause. As far back as U.S.
v. Salaveria, 4 a 1918 decision, this Court through Justice Malcolm made clear
the significance and scope of such a clause, which "delegates in statutory form
the police power to a municipality. As above stated, this clause has been given
wide application by municipal authorities and has in its relation to the particular
circumstances of the case been liberally construed by the courts. Such, it is well
to really is the progressive view of Philippine jurisprudence." 5 As it was then, so
it has continued to be. 6 There is no showing, therefore, of the
unconstitutionality of such ordinance.
WHEREFORE, the appealed order of the lower court is affirmed. No costs.
G.R. No. 111097 July 20, 1994
MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners,
vs. PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND
GAMING CORPORATION, respondents.
Aquilino G. Pimentel, Jr. and Associates for petitioners.
R.R. Torralba & Associates for private respondent.
CRUZ, J.:
There was instant opposition when PAGCOR announced the opening of a casino
in Cagayan de Oro City. Civic organizations angrily denounced the project. The
religious elements echoed the objection and so did the women's groups and
the youth. Demonstrations were led by the mayor and the city legislators. The
media trumpeted the protest, describing the casino as an affront to the welfare
of the city.
The trouble arose when in 1992, flush with its tremendous success in several
cities, PAGCOR decided to expand its operations to Cagayan de Oro City. To this
end, it leased a portion of a building belonging to Pryce Properties Corporation,
Inc., one of the herein private respondents, renovated and equipped the same,
and prepared to inaugurate its casino there during the Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift
and hostile. On December 7, 1992, it enacted Ordinance No. 3353 reading as
follows:
ORDINANCE NO. 3353
AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS
PERMIT AND CANCELLING EXISTING BUSINESS PERMIT TO
ANY ESTABLISHMENT FOR THE USING AND ALLOWING TO BE
USED ITS PREMISES OR PORTION THEREOF FOR THE
OPERATION OF CASINO.
BE IT ORDAINED by the Sangguniang Panlungsod of the City of
Cagayan de Oro, in session assembled that:
Sec. 1. — That pursuant to the policy of the city banning the
operation of casino within its territorial jurisdiction, no
business permit shall be issued to any person, partnership or
corporation for the operation of casino within the city limits.
Sec. 2. — That it shall be a violation of existing business permit
by any persons, partnership or corporation to use its business
establishment or portion thereof, or allow the use thereof by
others for casino operation and other gambling activities.
Sec. 3. — PENALTIES. — Any violation of such existing business
permit as defined in the preceding section shall suffer the
following penalties, to wit:
45
a) Suspension of the business permit for sixty (60)
days for the first offense and a fine of
P1,000.00/day
b) Suspension of the business permit for Six (6)
months for the second offense, and a fine of
P3,000.00/day
c) Permanent revocation of the business permit
and imprisonment of One (1) year, for the third
and subsequent offenses.
Sec. 4. — This Ordinance shall take effect ten (10) days from
publication thereof.
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-
93 reading as follows:
ORDINANCE NO. 3375-93
AN ORDINANCE PROHIBITING THE OPERATION OF CASINO
AND PROVIDING PENALTY FOR VIOLATION THEREFOR.
WHEREAS, the City Council established a policy as early as
1990 against CASINO under its Resolution No. 2295;
WHEREAS, on October 14, 1992, the City Council passed
another Resolution No. 2673, reiterating its policy against the
establishment of CASINO;
WHEREAS, subsequently, thereafter, it likewise passed
Ordinance No. 3353, prohibiting the issuance of Business
Permit and to cancel existing Business Permit to any
establishment for the using and allowing to be used its
premises or portion thereof for the operation of CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI
of the Local Government Code of 1991 (Rep. Act 7160) and
under Art. 99, No. (4), Paragraph VI of the implementing rules
of the Local Government Code, the City Council as the
Legislative Body shall enact measure to suppress any activity
inimical to public morals and general welfare of the people
and/or regulate or prohibit such activity pertaining to
amusement or entertainment in order to protect social and
moral welfare of the community;
NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly assembled
that:
Sec. 1. — The operation of gambling CASINO in the City of
Cagayan de Oro is hereby prohibited.
Sec. 2. — Any violation of this Ordinance shall be subject to
the following penalties:
a) Administrative fine of P5,000.00 shall be imposed against
the proprietor, partnership or corporation undertaking the
operation, conduct, maintenance of gambling CASINO in the
City and closure thereof;
b) Imprisonment of not less than six (6) months nor more than
one (1) year or a fine in the amount of P5,000.00 or both at
the discretion of the court against the manager, supervisor,
and/or any person responsible in the establishment, conduct
and maintenance of gambling CASINO.
46
Sec. 3. — This Ordinance shall take effect ten (10) days after
its publication in a local newspaper of general circulation.
Pryce assailed the ordinances before the Court of Appeals, where it was joined
by PAGCOR as intervenor and supplemental petitioner. Their challenge
succeeded. On March 31, 1993, the Court of Appeals declared the ordinances
invalid and issued the writ prayed for to prohibit their
enforcement. 1 Reconsideration of this decision was denied on July 13, 1993. 2
Cagayan de Oro City and its mayor are now before us in this petition for review
under Rule 45 of the Rules of Court. 3 They aver that the respondent Court of
Appeals erred in holding that:
1. Under existing laws, the Sangguniang Panlungsod of the City
of Cagayan de Oro does not have the power and authority to
prohibit the establishment and operation of a PAGCOR
gambling casino within the City's territorial limits.
2. The phrase "gambling and other prohibited games of
chance" found in Sec. 458, par. (a), sub-par. (1) — (v) of R.A.
7160 could only mean "illegal gambling."
3. The questioned Ordinances in effect annul P.D. 1869 and
are therefore invalid on that point.
4. The questioned Ordinances are discriminatory to casino and
partial to cockfighting and are therefore invalid on that point.
5. The questioned Ordinances are not reasonable, not
consonant with the general powers and purposes of the
instrumentality concerned and inconsistent with the laws or
policy of the State.
 6. It had no option but to follow the ruling in the case of Basco,
et al. v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 53
in disposing of the issues presented in this present case.
PAGCOR is a corporation created directly by P.D. 1869 to help centralize and
regulate all games of chance, including casinos on land and sea within the
territorial jurisdiction of the Philippines. In Basco v. Philippine Amusements and
Gaming Corporation, 4 this Court sustained the constitutionality of the decree
and even cited the benefits of the entity to the national economy as the third
highest revenue-earner in the government, next only to the BIR and the Bureau
of Customs.
Cagayan de Oro City, like other local political subdivisions, is empowered to
enact ordinances for the purposes indicated in the Local Government Code. It
is expressly vested with the police power under what is known as the General
Welfare Clause now embodied in Section 16 as follows:
Sec. 16. — General Welfare. — Every local government unit
shall exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate,
or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other
things, the preservation and enrichment of culture, promote
health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among
their residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants.
In addition, Section 458 of the said Code specifically declares that:
47
Sec. 458. — Powers, Duties, Functions and Compensation. —
(a) The Sangguniang Panlungsod, as the legislative body of the
city, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as
provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an
efficient and effective city government, and in this connection,
shall:
xxx xxx xxx
(v) Enact ordinances intended to prevent, suppress and
impose appropriate penalties for habitual drunkenness
in public places, vagrancy, mendicancy, prostitution,
establishment and maintenance of houses of ill
repute, gamblingand other prohibited games of
chance, fraudulent devices and ways to obtain money
or property, drug addiction, maintenance of drug dens,
drug pushing, juvenile delinquency, the printing,
distribution or exhibition of obscene or pornographic
materials or publications, and such other activities
inimical to the welfare and morals of the inhabitants of
the city;
This section also authorizes the local government units to regulate properties
and businesses within their territorial limits in the interest of the general
welfare. 5
The petitioners argue that by virtue of these provisions, the Sangguniang
Panlungsod may prohibit the operation of casinos because they involve games
of chance, which are detrimental to the people. Gambling is not allowed by
general law and even by the Constitution itself. The legislative power conferred
upon local government units may be exercised over all kinds of gambling and
not only over "illegal gambling" as the respondents erroneously argue. Even if
the operation of casinos may have been permitted under P.D. 1869, the
government of Cagayan de Oro City has the authority to prohibit them within
its territory pursuant to the authority entrusted to it by the Local Government
Code.
It is submitted that this interpretation is consonant with the policy of local
autonomy as mandated in Article II, Section 25, and Article X of the Constitution,
as well as various other provisions therein seeking to strengthen the character
of the nation. In giving the local government units the power to prevent or
suppress gambling and other social problems, the Local Government Code has
recognized the competence of such communities to determine and adopt the
measures best expected to promote the general welfare of their inhabitants in
line with the policies of the State.
The petitioners also stress that when the Code expressly authorized the local
government units to prevent and suppress gambling and other prohibited
games of chance, like craps, baccarat, blackjack and roulette, it meant allforms
of gambling without distinction. Ubi lex non distinguit, nec nos distinguere
debemos. 6 Otherwise, it would have expressly excluded from the scope of their
power casinos and other forms of gambling authorized by special law, as it
could have easily done. The fact that it did not do so simply means that the local
government units are permitted to prohibit all kinds of gambling within their
territories, including the operation of casinos.
The adoption of the Local Government Code, it is pointed out, had the effect of
modifying the charter of the PAGCOR. The Code is not only a later enactment
than P.D. 1869 and so is deemed to prevail in case of inconsistencies between
them. More than this, the powers of the PAGCOR under the decree are
expressly discontinued by the Code insofar as they do not conform to its
philosophy and provisions, pursuant to Par. (f) of its repealing clause reading as
follows:
48
(f) All general and special laws, acts, city charters, decrees,
executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent
with any of the provisions of this Code are hereby repealed or
modified accordingly.
It is also maintained that assuming there is doubt regarding the effect of the
Local Government Code on P.D. 1869, the doubt must be resolved in favor of
the petitioners, in accordance with the direction in the Code calling for its liberal
interpretation in favor of the local government units. Section 5 of the Code
specifically provides:
Sec. 5. Rules of Interpretation. — In the interpretation of the
provisions of this Code, the following rules shall apply:
(a) Any provision on a power of a local government unit shall
be liberally interpreted in its favor, and in case of doubt, any
question thereon shall be resolved in favor of devolution of
powers and of the lower local government unit. Any fair and
reasonable doubt as to the existence of the power shall be
interpreted in favor of the local government unit concerned;
xxx xxx xxx
(c) The general welfare provisions in this Code shall be liberally
interpreted to give more powers to local government units in
accelerating economic development and upgrading the
quality of life for the people in the community; . . . (Emphasis
supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful and cite
various provisions of the Constitution and several decisions of this Court
expressive of the general and official disapprobation of the vice. They invoke
the State policies on the family and the proper upbringing of the youth and, as
might be expected, call attention to the old case of U.S. v. Salaveria,7 which The tests of a valid ordinance are well established. A long line of decisions 9 has
sustained a municipal ordinance prohibiting the playing of panguingue. The held that to be valid, an ordinance must conform to the following substantive
petitioners decry the immorality of gambling. They also impugn the wisdom of requirements:
P.D. 1869 (which they describe as "a martial law instrument") in creating
PAGCOR and authorizing it to operate casinos "on land and sea within the 1) It must not contravene the constitution or any statute.
territorial jurisdiction of the Philippines."
2) It must not be unfair or oppressive.
This is the opportune time to stress an important point.
3) It must not be partial or discriminatory.
The morality of gambling is not a justiciable issue. Gambling is not illegal per se.
While it is generally considered inimical to the interests of the people, there is 4) It must not prohibit but may regulate trade.
nothing in the Constitution categorically proscribing or penalizing gambling or,
for that matter, even mentioning it at all. It is left to Congress to deal with the 5) It must be general and consistent with public policy.
activity as it sees fit. In the exercise of its own discretion, the legislature may
prohibit gambling altogether or allow it without limitation or it may prohibit 6) It must not be unreasonable.
some forms of gambling and allow others for whatever reasons it may consider
sufficient. Thus, it has prohibited jueteng and monte but permits lotteries,
We begin by observing that under Sec. 458 of the Local Government Code, local
cockfighting and horse-racing. In making such choices, Congress has consulted
government units are authorized to prevent or suppress, among others,
its own wisdom, which this Court has no authority to review, much less reverse.
"gambling and other prohibited games of chance." Obviously, this provision
Well has it been said that courts do not sit to resolve the merits of conflicting
excludes games of chance which are not prohibited but are in fact permitted by
theories. 8 That is the prerogative of the political departments. It is settled that
law. The petitioners are less than accurate in claiming that the Code could have
questions regarding the wisdom, morality, or practicibility of statutes are not
excluded such games of chance but did not. In fact it does. The language of the
addressed to the judiciary but may be resolved only by the legislative and
section is clear and unmistakable. Under the rule of noscitur a sociis, a word or
executive departments, to which the function belongs in our scheme of
phrase should be interpreted in relation to, or given the same meaning of,
government. That function is exclusive. Whichever way these branches decide,
words with which it is associated. Accordingly, we conclude that since the word
they are answerable only to their own conscience and the constituents who will
"gambling" is associated with "and other prohibited games of chance," the word
ultimately judge their acts, and not to the courts of justice.
should be read as referring to only illegal gambling which, like
the other prohibited games of chance, must be prevented or suppressed.
The only question we can and shall resolve in this petition is the validity of
Ordinance No. 3355 and Ordinance No. 3375-93 as enacted by the Sangguniang
We could stop here as this interpretation should settle the problem quite
Panlungsod of Cagayan de Oro City. And we shall do so only by the criteria laid
conclusively. But we will not. The vigorous efforts of the petitioners on behalf
down by law and not by our own convictions on the propriety of gambling.
of the inhabitants of Cagayan de Oro City, and the earnestness of their
advocacy, deserve more than short shrift from this Court.

49
The apparent flaw in the ordinances in question is that they contravene P.D.
1869 and the public policy embodied therein insofar as they prevent PAGCOR
from exercising the power conferred on it to operate a casino in Cagayan de
Oro City. The petitioners have an ingenious answer to this misgiving. They deny
that it is the ordinances that have changed P.D. 1869 for an ordinance
admittedly cannot prevail against a statute. Their theory is that the change has
been made by the Local Government Code itself, which was also enacted by the
national lawmaking authority. In their view, the decree has been, not really
repealed by the Code, but merely "modified pro tanto" in the sense that
PAGCOR cannot now operate a casino over the objection of the local
government unit concerned. This modification of P.D. 1869 by the Local
Government Code is permissible because one law can change or repeal another
law.
It seems to us that the petitioners are playing with words. While insisting that
the decree has only been "modifiedpro tanto," they are actually arguing that it
is already dead, repealed and useless for all intents and purposes because the
Code has shorn PAGCOR of all power to centralize and regulate casinos. Strictly
speaking, its operations may now be not only prohibited by the local
government unit; in fact, the prohibition is not only discretionary
but mandated by Section 458 of the Code if the word "shall" as used therein is
to be given its accepted meaning. Local government units have now no choice
but to prevent and suppress gambling, which in the petitioners' view includes
both legal and illegal gambling. Under this construction, PAGCOR will have no
more games of chance to regulate or centralize as they must all be prohibited
by the local government units pursuant to the mandatory duty imposed upon
them by the Code. In this situation, PAGCOR cannot continue to exist except
only as a toothless tiger or a white elephant and will no longer be able to
exercise its powers as a prime source of government revenue through the
operation of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the repealing
clause, conveniently discarding the rest of the provision which painstakingly
mentions the specific laws or the parts thereof which are repealed (or modified)
50
by the Code. Significantly, P.D. 1869 is not one of them. A reading of the entire
repealing clause, which is reproduced below, will disclose the omission:
Sec. 534. Repealing Clause. — (a) Batas Pambansa Blg. 337,
otherwise known as the "Local Government Code," Executive
Order No. 112 (1987), and Executive Order No. 319 (1988) are
hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other
decrees, orders, instructions, memoranda and issuances
related to or concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No.
1939 regarding hospital fund; Section 3, a (3) and b (2) of
Republic Act. No. 5447 regarding the Special Education Fund;
Presidential Decree No. 144 as amended by Presidential
Decree Nos. 559 and 1741; Presidential Decree No. 231 as
amended; Presidential Decree No. 436 as amended by
Presidential Decree No. 558; and Presidential Decree Nos.
381, 436, 464, 477, 526, 632, 752, and 1136 are hereby
repealed and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as
it governs locally-funded projects.
(e) The following provisions are hereby repealed or amended
insofar as they are inconsistent with the provisions of this
Code: Sections 2, 16, and 29 of Presidential Decree No. 704;
Sections 12 of Presidential Decree No. 87, as amended;
Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of
Presidential Decree No. 463, as amended; and Section 16 of
Presidential Decree No. 972, as amended, and
 (f) All general and special laws, acts, city charters, decrees,
executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent
with any of the provisions of this Code are hereby repealed or
modified accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly presumed
in the absence of a clear and unmistakable showing of such intention.
In Lichauco & Co. v. Apostol, 10 this Court explained:
The cases relating to the subject of repeal by implication all
proceed on the assumption that if the act of later date clearly
reveals an intention on the part of the lawmaking power to
abrogate the prior law, this intention must be given effect; but
there must always be a sufficient revelation of this intention,
and it has become an unbending rule of statutory construction
that the intention to repeal a former law will not be imputed
to the Legislature when it appears that the two statutes, or
provisions, with reference to which the question arises bear
to each other the relation of general to special.
There is no sufficient indication of an implied repeal of P.D. 1869. On the
contrary, as the private respondent points out, PAGCOR is mentioned as the
source of funding in two later enactments of Congress, to wit, R.A. 7309,
creating a Board of Claims under the Department of Justice for the benefit of
victims of unjust punishment or detention or of violent crimes, and R.A. 7648,
providing for measures for the solution of the power crisis. PAGCOR revenues
are tapped by these two statutes. This would show that the PAGCOR charter
has not been repealed by the Local Government Code but has in fact been
improved as it were to make the entity more responsive to the fiscal problems
of the government.
It is a canon of legal hermeneutics that instead of pitting one statute against
another in an inevitably destructive confrontation, courts must exert every
51
effort to reconcile them, remembering that both laws deserve a becoming
respect as the handiwork of a coordinate branch of the government. On the
assumption of a conflict between P.D. 1869 and the Code, the proper action is
not to uphold one and annul the other but to give effect to both by harmonizing
them if possible. This is possible in the case before us. The proper resolution of
the problem at hand is to hold that under the Local Government Code, local
government units may (and indeed must) prevent and suppress all kinds of
gambling within their territories except only those allowed by statutes like P.D.
1869. The exception reserved in such laws must be read into the Code, to make
both the Code and such laws equally effective and mutually complementary.
This approach would also affirm that there are indeed two kinds of gambling,
to wit, the illegal and those authorized by law. Legalized gambling is not a
modern concept; it is probably as old as illegal gambling, if not indeed more so.
The petitioners' suggestion that the Code authorizes them to prohibit all kinds
of gambling would erase the distinction between these two forms of gambling
without a clear indication that this is the will of the legislature. Plausibly,
following this theory, the City of Manila could, by mere ordinance, prohibit the
Philippine Charity Sweepstakes Office from conducting a lottery as authorized
by R.A. 1169 and B.P. 42 or stop the races at the San Lazaro Hippodrome as
authorized by R.A. 309 and R.A. 983.
In light of all the above considerations, we see no way of arriving at the
conclusion urged on us by the petitioners that the ordinances in question are
valid. On the contrary, we find that the ordinances violate P.D. 1869, which has
the character and force of a statute, as well as the public policy expressed in
the decree allowing the playing of certain games of chance despite the
prohibition of gambling in general.
The rationale of the requirement that the ordinances should not contravene a
statute is obvious. Municipal governments are only agents of the national
government. Local councils exercise only delegated legislative powers
conferred on them by Congress as the national lawmaking body. The delegate
cannot be superior to the principal or exercise powers higher than those of the
latter. It is a heresy to suggest that the local government units can undo the
acts of Congress, from which they have derived their power in the first place,
and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their
powers and rights wholly from the legislature. It breathes into
them the breath of life, without which they cannot exist. As it
creates, so it may destroy. As it may destroy, it may abridge
and control. Unless there is some constitutional limitation on
the right, the legislature might, by a single act, and if we can
suppose it capable of so great a folly and so great a wrong,
sweep from existence all of the municipal corporations in the
State, and the corporation could not prevent it. We know of
no limitation on the right so far as to the corporation
themselves are concerned. They are, so to phrase it, the mere
tenants at will of the legislature. 11
This basic relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in the
Constitution strengthening the policy of local autonomy. Without meaning to
detract from that policy, we here confirm that Congress retains control of the
local government units although in significantly reduced degree now than
under our previous Constitutions. The power to create still includes the power
to destroy. The power to grant still includes the power to withhold or recall.
True, there are certain notable innovations in the Constitution, like the direct
conferment on the local government units of the power to tax, 12 which cannot
now be withdrawn by mere statute. By and large, however, the national
legislature is still the principal of the local government units, which cannot defy
its will or modify or violate it.
The Court understands and admires the concern of the petitioners for the
welfare of their constituents and their apprehensions that the welfare of
Cagayan de Oro City will be endangered by the opening of the casino. We share
the view that "the hope of large or easy gain, obtained without special effort,
52
turns the head of the workman" 13 and that "habitual gambling is a cause of
laziness and ruin." 14 In People v. Gorostiza, 15 we declared: "The social scourge
of gambling must be stamped out. The laws against gambling must be enforced
to the limit." George Washington called gambling "the child of avarice, the
brother of iniquity and the father of mischief." Nevertheless, we must recognize
the power of the legislature to decide, in its own wisdom, to legalize certain
forms of gambling, as was done in P.D. 1869 and impliedly affirmed in the Local
Government Code. That decision can be revoked by this Court only if it
contravenes the Constitution as the touchstone of all official acts. We do not
find such contravention here.
We hold that the power of PAGCOR to centralize and regulate all games of
chance, including casinos on land and sea within the territorial jurisdiction of
the Philippines, remains unimpaired. P.D. 1869 has not been modified by the
Local Government Code, which empowers the local government units to
prevent or suppress only those forms of gambling prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the status of a
statute that cannot be amended or nullified by a mere ordinance. Hence, it was
not competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact
Ordinance No. 3353 prohibiting the use of buildings for the operation of a
casino and Ordinance No. 3375-93 prohibiting the operation of casinos. For all
their praiseworthy motives, these ordinances are contrary to P.D. 1869 and the
public policy announced therein and are therefore ultra vires and void.
WHEREFORE, the petition is DENIED and the challenged decision of the
respondent Court of Appeals is AFFIRMED, with costs against the petitioners. It
is so ordered.
Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo, Melo,
Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.
Separate Opinions
PADILLA, J., concurring:
I concur with the majority holding that the city ordinances in question cannot
modify much less repeal PAGCOR's general authority to establish and maintain
gambling casinos anywhere in the Philippines under Presidential Decree No.
1869.
In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA
52, I stated in a separate opinion that:
. . . I agree with the decision insofar as it holds that the
prohibition, control, and regulation of the entire activity
known as gambling properly pertain to "state policy". It is,
therefore, the political departments of government, namely,
the legislative and the executive that should decide on what
government should do in the entire area of gambling, and
assume full responsibility to the people for such policy."
(Emphasis supplied)
However, despite the legality of the opening and operation of a casino in
Cagayan de Oro City by respondent PAGCOR, I wish to reiterate my view that
gambling in any form runs counter to the government's own efforts to re-
establish and resurrect the Filipino moral character which is generally perceived
to be in a state of continuing erosion.
It is in the light of this alarming perspective that I call upon government to
carefully weigh the advantages and disadvantages of setting up more gambling
facilities in the country.
That the PAGCOR contributes greatly to the coffers of the government is not
enough reason for setting up more gambling casinos because, undoubtedly,
53
this will not help improve, but will cause a further deterioration in the Filipino
moral character.
It is worth remembering in this regard that, 1) what is legal is not always moral
and 2) the ends do not always justify the means.
As in Basco, I can easily visualize prostitution at par with gambling. And yet,
legalization of the former will not render it any less reprehensible even if
substantial revenue for the government can be realized from it. The same is
true of gambling.
In the present case, it is my considered view that the national government
(through PAGCOR) should re-examine and re-evaluate its decision
of imposing the gambling casino on the residents of Cagayan de Oro City; for it
is abundantly clear that public opinion in the city is very much against it, and
again the question must be seriously deliberated: will the prospects of revenue
to be realized from the casino outweigh the further destruction of the Filipino
sense of values?
DAVIDE, JR., J., concurring:
While I concur in part with the majority, I wish, however, to express my views
on certain aspects of this case.
I.
It must at once be noted that private respondent Pryce Properties Corporation
(PRYCE) directly filed with the Court of Appeals its so-called petition
for prohibition, thereby invoking the said court's original jurisdiction to issue
writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it, however, the
principal cause of action therein is one for declaratory relief: to declare null and
unconstitutional — for, inter alia, having been enacted without or in excess of
jurisdiction, for impairing the obligation of contracts, and for being inconsistent
with public policy — the challenged ordinances enacted by the Sangguniang
Panglungsod of the City of Cagayan de Oro. The intervention therein of public
respondent Philippine Amusement and Gaming Corporation (PAGCOR) further
underscores the "declaratory relief" nature of the action. PAGCOR assails the
ordinances for being contrary to the non-impairment and equal protection
clauses of the Constitution, violative of the Local Government Code, and against
the State's national policy declared in P.D. No. 1869. Accordingly, the Court of
Appeals does not have jurisdiction over the nature of the action. Even
assuming arguendo that the case is one for prohibition, then, under this Court's
established policy relative to the hierarchy of courts, the petition should have
been filed with the Regional Trial Court of Cagayan de Oro City. I find no special
or compelling reason why it was not filed with the said court. I do not wish to
entertain the thought that PRYCE doubted a favorable verdict therefrom, in
which case the filing of the petition with the Court of Appeals may have been
impelled by tactical considerations. A dismissal of the petition by the Court of
Appeals would have been in order pursuant to our decisions in People vs.
Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago vs. Vasquez (217 SCRA
633 [1993]). In Cuaresma, this Court stated:
A last word. This court's original jurisdiction to issue writs
of certiorari (as well as prohibition, mandamus, quo
warranto, habeas corpus and injunction) is not exclusive. It is
shared by this Court with Regional Trial Courts (formerly
Courts of First Instance), which may issue the writ,
enforceable in any part of their respective regions. It is also
shared by this court, and by the Regional Trial Court, with the
Court of Appeals (formerly, Intermediate Appellate Court),
although prior to the effectivity of Batas Pambansa Bilang
129 on August 14, 1981, the latter's competence to issue the
extraordinary writs was restricted by those "in aid of its
appellate jurisdiction." This concurrence of jurisdiction is not,
however, to be taken as according to parties seeking any of
the writs an absolute, unrestrained freedom of choice of the
court to which application therefor will be directed. There is
after all a hierarchy of courts. That hierarchy is determinative
of the revenue of appeals, and should also serve as a general
54
determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial
hierarchy most certainly indicates that petitions for the
issuance of extraordinary writs against first level ("inferior")
courts should be filed with the Regional Trial Court, and those
against the latter, with the Court of Appeals. A direct
invocation of the Supreme Court's original jurisdiction to issue
these writs should be allowed only when there are special and
important reasons therefor, clearly and specifically set out in
the petition. This is established policy. It is a policy that is
necessary to prevent inordinate demands upon the Court's
time and attention which are better devoted to those matters
within its exclusive jurisdiction, and to prevent further over-
crowding of the Court's docket. Indeed, the removal of the
restriction of the jurisdiction of the Court of Appeals in this
regard, supra — resulting from the deletion of the qualifying
phrase, "in aid of its appellate jurisdiction" — was evidently
intended precisely to relieve this Court pro tanto of the
burden of dealing with applications for extraordinary writs
which, but for the expansion of the Appellate Court's
corresponding jurisdiction, would have had to be filed with it.
(citations omitted)
And in Vasquez, this Court said:
One final observation. We discern in the proceedings in this
case a propensity on the part of petitioner, and, for that
matter, the same may be said of a number of litigants who
initiate recourses before us, to disregard the hierarchy of
courts in our judicial system by seeking relief directly from this
Court despite the fact that the same is available in the lower
courts in the exercise of their original or concurrent
jurisdiction, or is even mandated by law to be sought therein.
This practice must be stopped, not only because of the
imposition upon the previous time of this Court but also
 because of the inevitable and resultant delay, intended or
otherwise, in the adjudication of the case which often has to
be remanded or referred to the lower court as the proper
forum under the rules of procedure, or as better equipped to
resolve the issues since this Court is not a trier of facts. We,
therefore, reiterate the judicial policy that this Court will not
entertain direct resort to it unless the redress desired cannot
be obtained in the appropriate courts or where exceptional
and compelling circumstances justify availment of a remedy
within and calling for the exercise of our primary jurisdiction.
II.
The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance
Prohibiting the Issuance of Business Permit and Canceling Existing Business
Permit To Any Establishment for the Using and Allowing to be Used Its Premises
or Portion Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93
entitled, "An Ordinance Prohibiting the Operation of Casino and Providing
Penalty for Violation Therefor." They were enacted to implement Resolution No.
2295 entitled, "Resolution Declaring As a Matter of Policy to Prohibit and/or Not
to Allow the Establishment of the Gambling Casino in the City of Cagayan de
Oro," which was promulgated on 19 November 1990 — nearly two years before
PRYCE and PAGCOR entered into a contract of lease under which the latter
leased a portion of the former's Pryce Plaza Hotel for the operation of a
gambling casino — which resolution was vigorously reiterated in Resolution No.
2673 of 19 October 1992.
The challenged ordinances were enacted pursuant to the Sangguniang
Panglungsod's express powers conferred by Section 458, paragraph (a),
subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government Code,
and pursuant to its implied power under Section 16 thereof (the general
welfare clause) which reads:
55
Sec. 16. General Welfare. — Every local government unit shall
exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate,
or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other
things, the preservation and enrichment of culture, promote
health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among
their residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants.
The issue that necessarily arises is whether in granting local governments (such
as the City of Cagayan de Oro) the above powers and functions, the Local
Government Code has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's
general authority to establish and maintain gambling casinos anywhere in the
Philippines is concerned.
I join the majority in holding that the ordinances cannot repeal P.D. No. 1869.
III.
The nullification by the Court of Appeals of the challenged ordinances
as unconstitutional primarily because it is in contravention to P.D. No. 1869 is
unwarranted. A contravention of a law is not necessarily a contravention of the
constitution. In any case, the ordinances can still stand even if they be conceded
as offending P.D. No. 1869. They can be reconciled, which is not impossible to
do. So reconciled, the ordinances should be construed as not applying to
PAGCOR.
 IV.
From the pleadings, it is obvious that the government and the people of
Cagayan de Oro City are, for obvious reasons, strongly against the opening of
the gambling casino in their city. Gambling, even if legalized, would be inimical
to the general welfare of the inhabitants of the City, or of any place for that
matter. The PAGCOR, as a government-owned corporation, must consider the
valid concerns of the people of the City of Cagayan de Oro and should not
impose its will upon them in an arbitrary, if not despotic, manner.
# Separate Opinions
PADILLA, J., concurring:
I concur with the majority holding that the city ordinances in question cannot
modify much less repeal PAGCOR's general authority to establish and maintain
gambling casinos anywhere in the Philippines under Presidential Decree No.
1869.
In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA
52, I stated in a separate opinion that:
. . . I agree with the decision insofar as it holds that the
prohibition, control, and regulation of the entire activity known
as gambling properly pertain to "state policy". It is, therefore,
the political departments of government, namely, the
legislative and the executive that should decide on what
government should do in the entire area of gambling, and
assume full responsibility to the people for such policy.
(emphasis supplied)
However, despite the legality of the opening and operation of a casino in
Cagayan de Oro City by respondent PAGCOR, I wish to reiterate my view that
gambling in any form runs counter to the government's own efforts to re-
56
establish and resurrect the Filipino moral character which is generally perceived
to be in a state of continuing erosion.
It is in the light of this alarming perspective that I call upon government to
carefully weigh the advantages and disadvantages of setting up more gambling
facilities in the country.
That the PAGCOR contributes greatly to the coffers of the government is not
enough reason for setting up more gambling casinos because, undoubtedly,
this will not help improve, but will cause a further deterioration in the Filipino
moral character.
It is worth remembering in this regard that, 1) what is legal is not always moral
and 2) the ends do not always justify the means.
As in Basco, I can easily visualize prostitution at par with gambling. And yet,
legalization of the former will not render it any less reprehensible even if
substantial revenue for the government can be realized from it. The same is
true of gambling.
In the present case, it is my considered view that the national government
(through PAGCOR) should re-examine and re-evaluate its decision
of imposing the gambling casino on the residents of Cagayan de Oro City; for it
is abundantly clear that public opinion in the city is very much against it, and
again the question must be seriously deliberated: will the prospects of revenue
to be realized from the casino outweigh the further destruction of the Filipino
sense of values?
DAVIDE, JR., J., concurring:
While I concur in part with the majority, I wish, however, to express my views
on certain aspects of this case.
I.
It must at once be noted that private respondent Pryce Properties Corporation
(PRYCE) directly filed with the Court of Appeals its so-called petition
for prohibition, thereby invoking the said court's original jurisdiction to issue
writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it, however, the
principal cause of action therein is one for declaratory relief: to declare null and
unconstitutional — for, inter alia, having been enacted without or in excess of
jurisdiction, for impairing the obligation of contracts, and for being inconsistent
with public policy — the challenged ordinances enacted by the Sangguniang
Panglungsod of the City of Cagayan de Oro. The intervention therein of public
respondent Philippine Amusement and Gaming Corporation (PAGCOR) further
underscores the "declaratory relief" nature of the action. PAGCOR assails the
ordinances for being contrary to the non-impairment and equal protection
clauses of the Constitution, violative of the Local Government Code, and against
the State's national policy declared in P.D. No. 1869. Accordingly, the Court of
Appeals does not have jurisdiction over the nature of the action. Even
assuming arguendo that the case is one for prohibition, then, under this Court's
established policy relative to the hierarchy of courts, the petition should have
been filed with the Regional Trial Court of Cagayan de Oro City. I find no special
or compelling reason why it was not filed with the said court. I do not wish to
entertain the thought that PRYCE doubted a favorable verdict therefrom, in
which case the filing of the petition with the Court of Appeals may have been
impelled by tactical considerations. A dismissal of the petition by the Court of
Appeals would have been in order pursuant to our decisions in People vs.
Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago vs. Vasquez (217 SCRA
633 [1993]). In Cuaresma, this Court stated:
A last word. This court's original jurisdiction to issue writs
of certiorari (as well as prohibition, mandamus, quo
warranto, habeas corpus and injunction) is not exclusive. It is
shared by this Court with Regional Trial Courts (formerly
Courts of First Instance), which may issue the writ,
enforceable in any part of their respective regions. It is also
shared by this court, and by the Regional Trial Court, with the
Court of Appeals (formerly, Intermediate Appellate Court),
although prior to the effectivity of Batas Pambansa Bilang
57
129 on August 14, 1981, the latter's competence to issue the
extraordinary writs was restricted by those "in aid of its
appellate jurisdiction." This concurrence of jurisdiction is not,
however, to be taken as according to parties seeking any of
the writs an absolute, unrestrained freedom of choice of the
court to which application therefor will be directed. There is
after all a hierarchy of courts. That hierarchy is determinative
of the revenue of appeals, and should also serve as a general
determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial
hierarchy most certainly indicates that petitions for the
issuance of extraordinary writs against first level ("inferior")
courts should be filed with the Regional Trial Court, and those
against the latter, with the Court of Appeals. A direct
invocation of the Supreme Court's original jurisdiction to issue
these writs should be allowed only when there are special and
important reasons therefor, clearly and specifically set out in
the petition. This is established policy. It is a policy that is
necessary to prevent inordinate demands upon the Court's
time and attention which are better devoted to those matters
within its exclusive jurisdiction, and to prevent further over-
crowding of the Court's docket. Indeed, the removal of the
restriction of the jurisdiction of the Court of Appeals in this
regard, supra — resulting from the deletion of the qualifying
phrase, "in aid of its appellate jurisdiction" — was evidently
intended precisely to relieve this Court pro tanto of the
burden of dealing with applications for extraordinary writs
which, but for the expansion of the Appellate Court's
corresponding jurisdiction, would have had to be filed with it.
(citations omitted)
And in Vasquez, this Court said:
One final observation. We discern in the proceedings in this
case a propensity on the part of petitioner, and, for that
 matter, the same may be said of a number of litigants who
initiate recourses before us, to disregard the hierarchy of
courts in our judicial system by seeking relief directly from this
Court despite the fact that the same is available in the lower
courts in the exercise of their original or concurrent
jurisdiction, or is even mandated by law to be sought therein.
This practice must be stopped, not only because of the
imposition upon the previous time of this Court but also
because of the inevitable and resultant delay, intended or
otherwise, in the adjudication of the case which often has to
be remanded or referred to the lower court as the proper
forum under the rules of procedure, or as better equipped to
resolve the issues since this Court is not a trier of facts. We,
therefore, reiterate the judicial policy that this Court will not
entertain direct resort to it unless the redress desired cannot
be obtained in the appropriate courts or where exceptional
and compelling circumstances justify availment of a remedy
within and calling for the exercise of our primary jurisdiction.
II.
The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance
Prohibiting the Issuance of Business Permit and Canceling Existing Business
Permit To Any Establishment for the Using and Allowing to be Used Its Premises
or Portion Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93
entitled, "An Ordinance Prohibiting the Operation of Casino and Providing
Penalty for Violation Therefor." They were enacted to implement Resolution No.
2295 entitled, "Resolution Declaring As a Matter of Policy to Prohibit and/or Not
to Allow the Establishment of the Gambling Casino in the City of Cagayan de
Oro," which was promulgated on 19 November 1990 — nearly two years before
PRYCE and PAGCOR entered into a contract of lease under which the latter
leased a portion of the former's Pryce Plaza Hotel for the operation of a
gambling casino — which resolution was vigorously reiterated in Resolution No.
2673 of 19 October 1992.
58
The challenged ordinances were enacted pursuant to the Sangguniang
Panglungsod's express powers conferred by Section 458, paragraph (a),
subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government Code,
and pursuant to its implied power under Section 16 thereof (the general
welfare clause) which reads:
Sec. 16. General Welfare. — Every local government unit shall
exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate,
or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other
things, the preservation and enrichment of culture, promote
health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among
their residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants.
The issue that necessarily arises is whether in granting local governments (such
as the City of Cagayan de Oro) the above powers and functions, the Local
Government Code has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's
general authority to establish and maintain gambling casinos anywhere in the
Philippines is concerned.
I join the majority in holding that the ordinances cannot repeal P.D. No. 1869.
III.
The nullification by the Court of Appeals of the challenged ordinances
as unconstitutional primarily because it is in contravention to P.D. No. 1869 is
unwarranted. A contravention of a law is not necessarily a contravention of the
constitution. In any case, the ordinances can still stand even if they be conceded
as offending P.D. No. 1869. They can be reconciled, which is not impossible to
do. So reconciled, the ordinances should be construed as not applying to
PAGCOR.
IV.
From the pleadings, it is obvious that the government and the people of
Cagayan de Oro City are, for obvious reasons, strongly against the opening of
the gambling casino in their city. Gambling, even if legalized, would be inimical
to the general welfare of the inhabitants of the City, or of any place for that
matter. The PAGCOR, as a government-owned corporation, must consider the
valid concerns of the people of the City of Cagayan de Oro and should not
impose its will upon them in an arbitrary, if not despotic, manner.
9) G.R. No. 110249 August 21, 1997
ALFREDO TANO, BALDOMERO TANO, DANILO TANO, ROMUALDO TANO,
TEOCENES MIDELLO, ANGEL DE MESA, EULOGIO TREMOCHA, FELIPE ONGONION, JR.,
ANDRES LINIJAN, ROBERT LIM, VIRGINIA LIM, FELIMON DE MESA, GENEROSO ARAGON,
TEODORICO ANDRE, ROMULO DEL ROSARIO, CHOLITO ANDRE, ERICK MONTANO,
ANDRES OLIVA, VITTORIO SALVADOR, LEOPOLDO ARAGON, RAFAEL RIBA, ALEJANDRO
LEONILA, JOSE DAMACINTO, RAMIRO MANAEG, RUBEN MARGATE, ROBERTO REYES,
DANILO PANGARUTAN, NOE GOLPAN, ESTANISLAO ROMERO, NICANOR DOMINGO,
ROLDAN TABANG, ADRIANO TABANG, FREDDIE SACAMAY, MIGUEL TRIMOCHA,
PACENCIO LABABIT, PABLO H. OMPAD, CELESTINO A. ABANO, ALLAN ALMODAI, BILLY
D. BARTOLAY, ALBINO D. LIQUE, MECHOR J. LAYSON, MELANIE AMANTE, CLARO E.
YATOC, MERGELDO B. BALDEO, EDGAR M. ALMASETA, JOSELITO MANAEG, LIBERATO
ANDRADA, JR., ROBERTO BERRY, RONALD VILLANUEVA, EDUARDO VALMORIA,
WILFREDO MENDOZA, NAPOLEON BABANGGA, ROBERTO TADEPA, RUBEN ASINGUA,
SILVERIO GABO, JERRY ROMERO, DAVID PANGGARUTAN, DANIEL PANGGARUTAN,
ROMEO AGAWIN, FERNANDO EQUIZ, DITO LEQUIZ, RONILO MODERABLE, BENEDICTO
TORRES, ROSITO A. VALDEZ, CRESENCIO A. SAYANG, NICOMEDES S. ACOSTA, ERENEO
A. SEGARINO, JR., WILFREDO A. RAUTO, DIOSDADO A. ACOSTA, BONIFACIO G. SISMO,
TACIO ALUBA, DANIEL B. BATERZAL, ELISEO YBAÑEZ, DIOSDADO E. HANCHIC, EDDIE
ESCALICAS, ELEAZAR B. BATERZAL, DOMINADOR HALICHIC, ROOSEVELT RISMO-AN,
ROBERT C. MERCADER, TIRSO ARESGADO, DANIEL CHAVEZ, DANILO CHAVEZ, VICTOR
VILLAROEL, ERNESTO C. YBAÑEZ, ARMANDO T. SANTILLAN, RUDY S. SANTILLAN,
JODJEN ILUSTRISIMO, NESTOR SALANGRON, ALBERTO SALANGRON, ROGER L. ROXAS,
FRANCISCO T. ANTICANO, PASTOR SALANGRON, BIENVENIDO SANTILLAN, GILBUENA
LADDY, FIDEL BENJAMIN, JOVELITO BELGANO, HONEY PARIOL, ANTONIO SALANGRON,
59
petitioners,
NICASIO SALANGRON, & AIRLINE SHIPPERS ASSOCIATION OF PALAWAN,
vs.
HON. GOV. SALVADOR P. SOCRATES, MEMBERS OF SANGGUNIANG
PANLALAWIGAN OF PALAWAN, namely, VICE-GOVERNOR JOEL T. REYES,
JOSE D. ZABALA, ROSALINO R. ACOSTA, JOSELITO A. CADLAON, ANDRES R.
BAACO, NELSON P. PENEYRA, CIPRIANO C. BARROMA, CLARO E. ORDINARIO,
ERNESTO A. LLACUNA, RODOLFO C. FLORDELIZA, GILBERT S. BAACO,
WINSTON G. ARZAGA, NAPOLEON F. ORDONEZ and GIL P. ACOSTA, CITY
MAYOR EDWARD HAGEDORN, MEMBERS OF SANGGUNIANG PANLUNGSOD
NG PUERTO PRINCESA, ALL MEMBERS OF BANTAY DAGAT, MEMBERS OF
PHILIPPINE NATIONAL POLICE OF PALAWAN, PROVINCIAL AND CITY
PROSECUTORS OF PALAWAN and PUERTO PRINCESA CITY, and ALL JUDGES
OF PALAWAN, REGIONAL, MUNICIPAL AND METROPOLITAN, respondents.
DAVIDE, JR., J.:
Petitioners caption their petition as one for "Certiorari, Injunction With
Preliminary and Mandatory Injunction, with Prayer for Temporary Restraining
Order" and pray that this Court: (1) declare as unconstitutional: (a) Ordinance
No. 15-92, dated 15 December 1992, of the Sangguniang Panglungsod of
Puerto Princesa; (b) Office Order No. 23, Series of 1993, dated 22 January 1993,
issued by Acting City Mayor Amado L. Lucero of Puerto Princesa City; and (c)
Resolution No. 33, Ordinance No. 2, Series of 1993, dated 19 February 1993, of
the Sangguniang Panlalawigan of Palawan; (2) enjoin the enforcement thereof;
and (3) restrain respondents Provincial and City Prosecutors of Palawan and
Puerto Princesa City and Judges of the Regional Trial Courts, Metropolitan Trial
Courts 1 and Municipal Circuit Trial Courts in Palawan from assuming jurisdiction over and hearing cases
concerning the violation of the Ordinances and of the Office Order.
More appropriately, the petition is, and shall be treated as, a special civil action
for certiorari and prohibition.
The following is petitioners' summary of the factual antecedents giving rise to
the petition:
1. On December 15, 1992, the Sangguniang Panlungsod ng Puerto
Princesa City enacted Ordinance No. 15-92 which took effect on
January 1, 1993 entitled: "AN ORDINANCE BANNING THE SHIPMENT
OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY
FROM JANUARY 1, 1993 TO JANUARY 1, 1998 AND PROVIDING
EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES THEREOF", the
full text of which reads as follows:
Sec. 1. Title of the Ordinance. — This Ordinance is
entitled: AN ORDINANCE BANNING THE SHIPMENT
OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO
PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY
1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES
AND FOR OTHER PURPOSES THEREOF.
Sec. 2. Purpose, Scope and Coverage. — To effectively
free our City Sea Waters from Cyanide and other
Obnoxious substance[s], and shall cover all persons
and/or entities operating within and outside the City
of Puerto Princesa who is are (sic) directly or
indirectly in the business or shipment of live fish and
lobster outside the City.
Sec. 3. Definition of terms. — For purpose of this
Ordinance the following are hereby defined:
A. SEA BASS — A kind of fish under the family
of Centropomidae, better known as
APAHAP;
B. CATFISH — A kind of fish under the family of
Plotosidae, better known as HITO-HITO;
60
C. MUDFISH — A kind of fish under the family
of Orphicaphalisae better known as
DALAG;
D. ALL LIVE FISH — All alive, breathing not
necessarily moving of all specie[s] use[d]
for food and for aquarium purposes.
E. LIVE LOBSTER — Several relatively, large
marine crusteceans [sic] of the genus
Homarus that are alive and breathing not
necessarily moving.
Sec. 4. It shall be unlawful [for] any person or any
business enterprise or company to ship out from
Puerto Princesa City to any point of destination either
via aircraft or seacraft of any live fish and lobster
except SEA BASS, CATFISH, MUDFISH, AND MILKFISH
FRIES.
Sec. 5. Penalty Clause. — Any person/s and or
business entity violating this Ordinance shall be
penalized with a fine of not more than P5,000.00 or
imprisonment of not more than twelve (12) months,
cancellation of their permit to do business in the City
of Puerto Princesa or all of the herein stated
penalties, upon the discretion of the court.
Sec. 6. If the owner and/or operator of the
establishment found violating the provisions of this
ordinance is a corporation or a partnership, the
penalty prescribed in Section 5 hereof shall be
imposed upon its president and/or General Manager
 or Managing Partner and/or Manager, as the case
maybe [sic].
Sec. 7. Any existing ordinance or any provision of any
ordinance inconsistent to [sic] this ordinance is
deemed repealed.
Sec. 8. This Ordinance shall take effect on January 1,
1993.
SO ORDAINED.
xxx xxx xxx
2. To implement said city ordinance, then Acting City Mayor Amado L.
Lucero issued Office Order No. 23, Series of 1993 dated January 22,
1993 which reads as follows:
In the interest of public service and for purposes of City Ordinance No.
PD 426-14-74, otherwise known as "AN ORDINANCE REQUIRING ANY
PERSON ENGAGED OR INTENDING TO ENGAGE IN ANY BUSINESS,
TRADE, OCCUPATION, CALLING OR PROFESSION OR HAVING IN HIS
POSSESSION ANY OF THE ARTICLES FOR WHICH A PERMIT IS REQUIRED
TO BE HAD, TO OBTAIN FIRST A MAYOR'S PERMIT" and "City Ordinance
No. 15-92, AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH
AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1,
1993 TO JANUARY 1, 1998, you are hereby authorized and directed to
check or conduct necessary inspections on cargoes containing live fish
and lobster being shipped out from the Puerto Princesa Airport, Puerto
Princesa Wharf or at any port within the jurisdiction of the City to any
point of destinations [sic] either via aircraft or seacraft.
The purpose of the inspection is to ascertain whether the shipper
possessed the required Mayor's Permit issued by this Office and the
61
shipment is covered by invoice or clearance issued by the local office
of the Bureau of Fisheries and Aquatic Resources and as to compliance
with all other existing rules and regulations on the matter.
Any cargo containing live fish and lobster without the required
documents as stated herein must be held for proper disposition.
In the pursuit of this Order, you are hereby authorized to coordinate
with the PAL Manager, the PPA Manager, the local PNP Station and
other offices concerned for the needed support and cooperation.
Further, that the usual courtesy and diplomacy must be observed at all
times in the conduct of the inspection.
Please be guided accordingly.
xxx xxx xxx
3. On February 19, 1993, the Sangguniang Panlalawigan, Provincial
Government of Palawan enacted Resolution No. 33 entitled: "A
RESOLUTION PROHIBITING THE CATCHING, GATHERING, POSSESSING,
BUYING, SELLING AND SHIPMENT OF LIVE MARINE CORAL DWELLING
AQUATIC ORGANISMS, TO WIT: FAMILY: SCARIDAE (MAMENG), EPINE
PHELUS FASCIATUS (SUNO). CROMILEPTES ALTIVELIS(PANTHER OR
SENORITA), LOBSTER BELOW 200 GRAMS AND SPAWNING, TRIDACNA
GIGAS(TAKLOBO), PINCTADA MARGARITEFERA (MOTHER PEARL,
OYSTERS, GIANT CLAMS AND OTHER SPECIES), PENAEUS
MONODON (TIGER PRAWN-BREEDER SIZE OR MOTHER), EPINEPHELUS
SUILLUS (LOBA OR GREEN GROUPER) AND
FAMILY: BALISTIDAE (TROPICAL AQUARIUM FISHES) FOR A PERIOD
FIVE (5) YEARS IN AND COMING FROM PALAWAN WATERS", the full
text of which reads as follows:
WHEREAS, scientific and factual researches [sic] and
studies disclose that only five (5) percent of the corals
of our province remain to be in excellent condition as
[a] habitat of marine coral dwelling aquatic
organisms;
WHEREAS, it cannot be gainsaid that the destruction
and devastation of the corals of our province were
principally due to illegal fishing activities like
dynamite fishing, sodium cyanide fishing, use of other
obnoxious substances and other related activities;
WHEREAS, there is an imperative and urgent need to
protect and preserve the existence of the remaining
excellent corals and allow the devastated ones to
reinvigorate and regenerate themselves into vitality
within the span of five (5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of the [sic] R.A.
7160 otherwise known as the Local Government
Code of 1991 empowers the Sangguniang
Panlalawigan to protect the environment and impose
appropriate penalties [upon] acts which endanger
the environment such as dynamite fishing and other
forms of destructive fishing, among others.
NOW, THEREFORE, on motion by Kagawad Nelson P.
Peneyra and upon unanimous decision of all the
members present;
Be it resolved as it is hereby resolved, to approve
Resolution No. 33, Series of 1993 of the Sangguniang
Panlalawigan and to enact Ordinance No. 2 for the
purpose, to wit:
62
ORDINANCE NO. 2
Series of 1993
BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN IN SESSION
ASSEMBLED:
Sec. 1. TITLE — This Ordinance shall be known as an
"Ordinance Prohibiting the catching, gathering,
possessing, buying, selling and shipment of live
marine coral dwelling aquatic organisms, to wit: 1.
Family: Scaridae (Mameng), 2. Epinephelus Fasciatus
(Suno) 3. Cromileptes altivelis (Panther or Senorita),
lobster below 200 grams and spawning), 4. Tridacna
Gigas (Taklobo), 5. Pinctada Margaretefera (Mother
Pearl, Oysters, Giant Clams and other species), 6.
Penaeus Monodon (Tiger Prawn-breeder size or
mother), 7. Epinephelus Suillus (Loba or Green
Grouper) and 8. Family: Balistidae (T[r]opical
Aquarium Fishes) for a period of five (5) years in and
coming from Palawan Waters.
Sec. II. PRELIMINARY CONSIDERATIONS
1. Sec. 2-A (Rep. Act 7160). It is hereby declared, the
policy of the state that the territorial and political
subdivisions of the State shall enjoy genuine and
meaningful local autonomy to enable them to attain
their fullest development as self-reliant communities
and make them more effective partners in the
attainment of national goals. Toward this end, the
State shall provide for [a] more responsive and
accountable local government structure instituted
through a system of decentralization whereby local
government units shall be given more powers,
authority, responsibilities and resources.
2. Sec. 5-A (R.A. 7160). Any provision on a power of
[a] local Government Unit shall be liberally
interpreted in its favor, and in case of doubt, any
question thereon shall be resolved in favor of
devolution of powers and of the lower government
units. "Any fair and reasonable doubts as to the
existence of the power shall be interpreted in favor of
the Local Government Unit concerned."
3. Sec. 5-C (R.A. 7160). The general welfare provisions
in this Code shall be liberally interpreted to give more
powers to local government units in accelerating
economic development and upgrading the quality of
life for the people in the community.
4. Sec. 16 (R.A. 7160). General Welfare. — Every local
government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well
as powers necessary, appropriate, or incidental for its
efficient and effective governance; and those which
are essential to the promotion of the general welfare.
Sec. III. DECLARATION OF POLICY. — It is hereby
declared to be the policy of the Province of Palawan
to protect and conserve the marine resources of
Palawan not only for the greatest good of the
majority of the present generation but with [the]
proper perspective and consideration of [sic] their
prosperity, and to attain this end, the Sangguniang
Panlalawigan henceforth declares that is (sic) shall be
unlawful for any person or any business entity to
63
engage in catching, gathering, possessing, buying,
selling and shipment of live marine coral dwelling
aquatic organisms as enumerated in Section 1 hereof
in and coming out of Palawan Waters for a period of
five (5) years;
Sec. IV. PENALTY CLAUSE. — Any person and/or
business entity violating this Ordinance shall be
penalized with a fine of not more than Five Thousand
Pesos (P5,000.00), Philippine Currency, and/or
imprisonment of six (6) months to twelve (12) months
and confiscation and forfeiture of paraphernalias [sic]
and equipment in favor of the government at the
discretion of the Court;
Sec. V. SEPARABILITY CLAUSE. — If for any reason, a
Section or provision of this Ordinance shall be held as
unconditional [sic] or invalid, it shall not affect the
other provisions hereof.
Sec. VI. REPEALING CLAUSE. — Any existing
Ordinance or a provision of any ordinance
inconsistent herewith is deemed modified, amended
or repealed.
Sec. VII. EFFECTIVITY — This Ordinance shall take
effect ten (10) days after its publication.
SO ORDAINED.
xxx xxx xxx
4. The respondents implemented the said ordinances, Annexes "A" and
"C" hereof thereby depriving all the fishermen of the whole province
 of Palawan and the City of Puerto Princesa of their only means of
livelihood and the petitioners Airline Shippers Association of Palawan
and other marine merchants from performing their lawful occupation
and trade;
5. Petitioners Alfredo Tano, Baldomero Tano, Teocenes Midello, Angel
de Mesa, Eulogio Tremocha, and Felipe Ongonion, Jr. were even
charged criminally under criminal case no. 93-05-C in the 1st Municipal
Circuit Trial Court of Cuyo-Agutaya-Magsaysay, an original carbon copy
of the criminal complaint dated April 12, 1993 is hereto attached as
Annex "D"; while xerox copies are attached as Annex "D" to the copies
of the petition;
6. Petitioners Robert Lim and Virginia Lim, on the other hand, were
charged by the respondent PNP with the respondent City Prosecutor
of Puerto Princess City, a xerox copy of the complaint is hereto
attached as Annex "E";
Without seeking redress from the concerned local government units,
prosecutor's office and courts, petitioners directly invoked our original
jurisdiction by filing this petition on 4 June 1993. In sum, petitioners contend
that:
First, the Ordinances deprived them of due process of law, their livelihood, and
unduly restricted them from the practice of their trade, in violation of Section
2, Article XII and Sections 2 and 7 of Article XIII of the 1987 Constitution.
Second, Office Order No. 23 contained no regulation nor condition under which
the Mayor's permit could be granted or denied; in other words, the Mayor had
the absolute authority to determine whether or not to issue the permit.
Third, as Ordinance No. 2 of the Province of Palawan "altogether prohibited the
catching, gathering, possession, buying, selling and shipping of live marine coral
dwelling organisms, without any distinction whether it was caught or gathered
64
through lawful fishing method," the Ordinance took away the right of
petitioners-fishermen to earn their livelihood in lawful ways; and insofar as
petitioners-members of Airline Shippers Association are concerned, they were
unduly prevented from pursuing their vocation and entering "into contracts
which are proper, necessary, and essential to carry out their business
endeavors to a successful conclusion."
Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan is null and void, the
criminal cases based thereon against petitioners Tano and the others have to
be dismissed.
In the Resolution of 15 June 1993 we required respondents to comment on the
petition, and furnished the Office of the Solicitor General with a copy thereof.
In their comment filed on 13 August 1993, public respondents Governor
Socrates and Members of the Sangguniang Panlalawigan of Palawan defended
the validity of Ordinance No. 2, Series of 1993, as a valid exercise of the
Provincial Government's power under the general welfare clause (Section 16 of
the Local Government Code of 1991 [hereafter, LGC]), and its specific power to
protect the environment and impose appropriate penalties for acts which
endanger the environment, such as dynamite fishing and other forms of
destructive fishing under Section 447 (a) (1) (vi), Section 458 (a) (1) (vi), and
Section 468 (a) (1) (vi), of the LGC. They claimed that in the exercise of such
powers, the Province of Palawan had "the right and responsibility . . . to insure
that the remaining coral reefs, where fish dwells [sic], within its territory remain
healthy for the future generation." The Ordinance, they further asserted,
covered only live marine coral dwelling aquatic organisms which were
enumerated in the ordinance and excluded other kinds of live marine aquatic
organisms not dwelling in coral reefs; besides the prohibition was for only five
(5) years to protect and preserve the pristine coral and allow those damaged to
regenerate.
Aforementioned respondents likewise maintained that there was no violation
of the due process and equal protection clauses of the Constitution. As to the
former, public hearings were conducted before the enactment of the
Ordinance which, undoubtedly, had a lawful purpose and employed reasonable
means; while as to the latter, a substantial distinction existed "between a
fisherman who catches live fish with the intention of selling it live, and a
fisherman who catches live fish with no intention at all of selling it live," i.e.,
"the former uses sodium cyanide while the latter does not." Further, the
Ordinance applied equally to all those belonging to one class.
On 25 October 1993 petitioners filed an Urgent Plea for the Immediate Issuance
of a Temporary Restraining Order, claiming that despite the pendency of this
case, Branch 50 of the Regional Trial Court of Palawan was bent on proceeding
with Criminal Case No. 11223 against petitioners Danilo Tano, Alfredo Tano,
Eulogio Tremocha, Romualdo Tano, Baldomero Tano, Andres Linijan and Angel
de Mesa for violation of Ordinance No. 2 of the Sangguniang Panlalawigan of
Palawan. Acting on said plea, we issued on 11 November 1993 a temporary
restraining order directing Judge Angel Miclat of said court to cease and desist
from proceeding with the arraignment and pre-trial of Criminal Case No. 11223.
On 12 July 1994, we excused the Office of the Solicitor General from filing a
comment, considering that as claimed by said office in its Manifestation of 28
June 1994, respondents were already represented by counsel.
The rest of the respondents did not file any comment on the petition.
In the resolution of 15 September 1994, we resolved to consider the comment
on the petition as the Answer, gave due course to the petition and required the
parties to submit their respective memoranda. 2
On 22 April 1997 we ordered impleaded as party respondents the Department of Agriculture and the Bureau
of Fisheries and Aquatic Resources and required the Office of the Solicitor General to comment on their behalf.
But in light of the latter's motion of 9 July 1997 for an extension of time to file the comment which would only
result in further delay, we dispensed with said comment.
65
After due deliberation on the pleadings filed, we resolved to dismiss this
petition for want of merit, and on 22 July 1997, assigned it to the ponente to
write the opinion of the Court.
I
There are actually two sets of petitioners in this case. The first is composed of
Alfredo Tano, Baldomero Tano, Danilo Tano, Romualdo Tano, Teocenes
Midello, Angel de Mesa, Eulogio Tremocha, Felipe Ongonion, Jr., Andres Linijan,
and Felimon de Mesa, who were criminally charged with violating Sangguniang
Panlalawigan Resolution No. 33 and Ordinance No. 2, Series of 1993, of the
Province of Palawan, in Criminal Case No. 93-05-C of the 1st Municipal Circuit
Trial Court (MCTC) of Palawan; 3 and Robert Lim and Virginia Lim who were charged with violating
City Ordinance No. 15-92 of Puerto Princesa City and Ordinance No. 2, Series of 1993, of the Province of
Palawan before the Office of the City Prosecutor of Puerto Princesa. 4 All of them, with the exception of
Teocenes Midello, Felipe Ongonion, Jr., Felimon de Mesa, Robert Lim and Virginia Lim, are likewise the accused
in Criminal Case No. 11223 for the violation of Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan,
pending before Branch 50 of the Regional Trial Court of Palawan. 5
The second set of petitioners is composed of the rest of the petitioners numbering seventy-seven (77), all of
whom, except the Airline Shippers Association of Palawan — an alleged private association of several marine
merchants — are natural persons who claim to be fishermen.
The primary interest of the first set of petitioners is, of course, to prevent the
prosecution, trial and determination of the criminal cases until the
constitutionality or legality of the Ordinances they allegedly violated shall have
been resolved. The second set of petitioners merely claim that being fishermen
or marine merchants, they would be adversely affected by the ordinance's.
As to the first set of petitioners, this special civil for certiorari must fail on the
ground of prematurity amounting to a lack of cause of action. There is no
showing that said petitioners, as the accused in the criminal cases, have filed
motions to quash the informations therein and that the same were denied. The
ground available for such motions is that the facts charged therein do not
constitute an offense because the ordinances in question are
unconstitutional. 6It cannot then be said that the lower courts acted without or in excess of jurisdiction
or with grave abuse of discretion to justify recourse to the extraordinary remedy of certiorari or prohibition. It
must further be stressed that even if petitioners did file motions to quash, the denial thereof would not
forthwith give rise to a cause of action under Rule 65 of the Rules of Court. The general rule is that where a
motion to quash is denied, the remedy therefrom is not certiorari, but for the party aggrieved thereby to go to
trial without prejudice to reiterating special defenses involved in said motion, and if, after trial on the merits an
adverse decision is rendered, to appeal therefrom in the manner authorized by law. 7 And, even where in an
exceptional circumstance such denial may be the subject of a special civil action for certiorari, a motion for
reconsideration must have to be filed to allow the court concerned an opportunity to correct its errors, unless
such motion may be dispensed with because of existing exceptional circumstances. 8 Finally, even if a motion
for reconsideration has been filed and denied, the remedy under Rule 65 is still unavailable absent any showing
of the grounds provided for in Section 1 thereof. 9 For obvious reasons, the petition at bar does not, and could
not have, alleged any of such grounds.
As to the second set of petitioners, the instant petition is obviously one for
DECLARATORY RELIEF, i.e., for a declaration that the Ordinances in question are
a "nullity . . . for being unconstitutional."10 As such, their petition must likewise
fail, as this Court is not possessed of original jurisdiction over petitions for
declaratory relief even if only questions of law are involved,11 it being settled
that the Court merely exercises appellate jurisdiction over such petitions.12
II
Even granting arguendo that the first set of petitioners have a cause of action
ripe for the extraordinary writ of certiorari, there is here a clear disregard of the
hierarchy of courts, and no special and important reason or exceptional and
compelling circumstance has been adduced why direct recourse to us should
be allowed. While we have concurrent jurisdiction with Regional Trial courts
and with the Court of Appeals to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and injunction, such
concurrence gives petitioners no unrestricted freedom of choice of court
forum, so we held in People v. Cuaresma.13
This concurrence of jurisdiction is not . . . to be taken as according to
parties seeking any of the writs an absolute unrestrained freedom of
choice of the court to which application therefor will be directed. There
is after all hierarchy of courts. That hierarchy is determinative of the
venue of appeals, and should also serve as a general determinant of
the appropriate forum for petitions for the extraordinary writs. A
66
becoming regard for that judicial hierarchy most certainly indicates
that petitions for the issuance of extraordinary writs against first level
("inferior") courts should be filed with the Regional Trial Court, and
those against the latter, with the Court of Appeals. A direct invocation
of the Supreme Court's original jurisdiction to issue these writs should
be allowed only when there are special and important reasons
therefor, clearly and specifically set out in the petition. This is
established policy. It is a policy necessary to prevent inordinate
demands upon the Court's time and attention which are better
devoted to those matters within its exclusive jurisdiction, and to
prevent further over-crowding of the Court's docket. . . .
The Court feels the need to reaffirm that policy at this time, and to
enjoin strict adherence thereto in the light of what it perceives to be a
growing tendency on the part of litigants and lawyers to have their
applications for the so-called extraordinary writs, and sometimes even
their appeals, passed upon and adjudicated directly and immediately
by the highest tribunal of the land. . . .
In Santiago v. Vasquez,14 this Court forcefully expressed that the propensity of
litigants and lawyers to disregard the hierarchy of courts must be put to a halt,
not only because of the imposition upon the precious time of this Court, but
also because of the inevitable and resultant delay, intended or otherwise, in the
adjudication of the case which often has to be remanded or referred to the
lower court, the proper forum under the rules of procedure, or as better
equipped to resolve the issues since this Court is not a trier of facts. We
reiterated "the judicial policy that this Court will not entertain direct resort to
it unless the redress desired cannot be obtained in the appropriate courts or
where exceptional and compelling circumstances justify availment of a remedy
within and calling for the exercise of [its] primary jurisdiction."
III
Notwithstanding the foregoing procedural obstacles against the first set of
petitioners, we opt to resolve this case on its merits considering that the
lifetime of the challenged Ordinances is about to end. Ordinance No. 15-92 of
the City of Puerto Princesa is effective only up to 1 January 1998, while
Ordinance No. 2 of the Province of Palawan, enacted on 19 February 1993, is
effective for only five (5) years. Besides, these Ordinances were undoubtedly
enacted in the exercise of powers under the new LGC relative to the protection
and preservation of the environment and are thus novel and of paramount
importance. No further delay then may be allowed in the resolution of the
issues raised.
It is of course settled that laws (including ordinances enacted by local
government units) enjoy the presumption of constitutionality. 15 To overthrow
this presumption, there must be a clear and unequivocal breach of the
Constitution, not merely a doubtful or argumentative contradiction. In short,
the conflict with the Constitution must be shown beyond reasonable
doubt.16 Where doubt exists, even if well-founded, there can be no finding of
unconstitutionality. To doubt is to sustain.17
After a scrutiny of the challenged Ordinances and the provisions of the
Constitution petitioners claim to have been violated, we find petitioners'
contentions baseless and so hold that the former do not suffer from any
infirmity, both under the Constitution and applicable laws.
Petitioners specifically point to Section 2, Article XII and Sections 2 and 7, Article
XIII of the Constitution as having been transgressed by the Ordinances.
The pertinent portion of Section 2 of Article XII reads:
Sec. 2. . . .
The State shall protect the nation's marine wealth in its archipelagic
waters, territorial sea, and exclusive economic zone, and reserve its
use and enjoyment exclusively to Filipino citizens.
67
The Congress may, by law, allow small-scale utilization of natural
resources by Filipino citizens, as well as cooperative fish farming, with
priority to subsistence fishermen and fishworkers in rivers, lakes, bays,
and lagoons.
Sections 2 and 7 of Article XIII provide:
Sec. 2. The promotion of social justice shall include the
commitment to create economic opportunities based on
freedom of initiative and self-reliance.
xxx xxx xxx
Sec. 7. The State shall protect the rights of subsistence
fishermen, especially of local communities, to the preferential
use of the communal marine and fishing resources, both
inland and offshore. It shall provide support to such fishermen
through appropriate technology and research, adequate
financial, production, and marketing assistance, and other
services. The State shall also protect, develop, and conserve
such resources. The protection shall extend to offshore fishing
grounds of subsistence fishermen against foreign intrusion.
Fishworkers shall receive a just share from their labor in the
utilization of marine and fishing resources.
There is absolutely no showing that any of the petitioners qualifies as
a subsistence or marginal fisherman. In their petition, petitioner Airline
Shippers Association of Palawan is self-described as "a private
association composed of Marine Merchants;" petitioners Robert Lim
and Virginia Lim, as "merchants;" while the rest of the petitioners claim
to be "fishermen," without any qualification, however, as to their
status.
Since the Constitution does not specifically provide a definition of the
terms "subsistence" or "marginal" fishermen,18 they should be
construed in their general and ordinary sense. A marginal fisherman is
an individual engaged in fishing whose margin of return or reward in
his harvest of fish as measured by existing price levels is barely
sufficient to yield a profit or cover the cost of gathering the fish,19 while
a subsistence fisherman is one whose catch yields but the irreducible
minimum for his livelihood.20 Section 131(p) of the LGC (R.A. No. 7160)
defines a marginal farmer or fisherman as "an individual engaged in
subsistence farming or fishing which shall be limited to the sale, barter
or exchange of agricultural or marine products produced by himself
and his immediate family." It bears repeating that nothing in the record
supports a finding that any petitioner falls within these definitions.
Besides, Section 2 of Article XII aims primarily not to bestow any right
to subsistence fishermen, but to lay stress on the duty of the State to
protect the nation's marine wealth. What the provision merely
recognizes is that the State may allow, by law, cooperative fish farming,
with priority to subsistence fishermen and fishworkers in rivers, lakes,
bays and lagoons. Our survey of the statute books reveals that the only
provision of law which speaks of a preferential right of marginal
fishermen is Section 149 of the LGC, which pertinently provides:
Sec. 149. Fishery Rentals, Fees and Charges. — . . .
(b) The sangguniang bayan may:
(1) Grant fishery privileges to erect fish corrals, oyster,
mussels or other aquatic beds or bangus fry areas, within a
definite zone of the municipal waters, as determined by
it: Provided, however, That duly registered organizations and
cooperatives of marginal fishermen shall have the preferential
right to such fishery privileges . . . .
68
In a Joint Administrative Order No. 3 dated 25 April 1996, the Secretary
of the Department of Agriculture and the Secretary of the Department
of Interior and Local Government prescribed guidelines concerning the
preferential treatment of small fisherfolk relative to the fishery right
mentioned in Section 149. This case, however, does not involve such
fishery right.
Anent Section 7 of Article XIII, it speaks not only of the use of
communal marine and fishing resources, but of their protection,
development and conservation. As hereafter shown, the ordinances in
question are meant precisely to protect and conserve our marine
resources to the end that their enjoyment may be guaranteed not only
for the present generation, but also for the generations to come.
The so-called "preferential right" of subsistence or marginal fishermen
to the use of marine resources is not at all absolute. In accordance with
the Regalian Doctrine, marine resources belong to the State, and,
pursuant to the first paragraph of Section 2, Article XII of the
Constitution, their "exploration, development and utilization . . . shall
be under the full control and supervision of the State." Moreover, their
mandated protection, development and conservation as necessarily
recognized by the framers of the Constitution, imply certain
restrictions on whatever right of enjoyment there may be in favor of
anyone. Thus, as to the curtailment of the preferential treatment of
marginal fishermen, the following exchange between Commissioner
Francisco Rodrigo and Commissioner Jose F.S. Bengzon, Jr., took place
at the plenary session of the Constitutional Commission:
MR. RODRIGO:
Let us discuss the implementation of this
because I would not raise the hopes of our
people, and afterwards fail in the
implementation. How will this be
 implemented? Will there be a licensing or
giving of permits so that government officials
will know that one is really a marginal
fisherman? Or if policeman say that a person
is not a marginal fisherman, he can show his
permit, to prove that indeed he is one.
MR. BENGZON:
Certainly, there will be some mode of
licensing insofar as this is concerned and this
particular question could be tackled when
we discuss the Article on Local Governments
— whether we will leave to the local
governments or to Congress on how these
things will be implemented. But certainly, I
think our congressmen and our local officials
will not be bereft of ideas on how to
implement this mandate.
xxx xxx xxx
MR. RODRIGO:
So, once one is licensed as a marginal
fisherman, he can go anywhere in the
Philippines and fish in any fishing grounds.
MR. BENGZON:
Subject to whatever rules and regulations
and local laws that may be passed, may be
existing or will be passed.21 (emphasis
supplied)
69
What must likewise be borne in mind is the state policy enshrined in
the Constitution regarding the duty of the State to protect and advance
the right of the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature. 22 On this score, in Oposa
v. Factoran, 23 this Court declared:
While the right to a balanced and healthful ecology is to be
found under the Declaration of Principles the State Policies
and not under the Bill of Rights, it does not follow that it is less
important than any of the civil and political rights enumerated
in the latter. Such a right belongs to a different category of
rights altogether for it concerns nothing less than self-
preservation and self-perpetuation — aptly and fittingly
stressed by the petitioners — the advancement of which may
even be said to predate all governments and constitutions. As
a matter of fact, these basic rights need not even be written
in the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly mentioned
in the fundamental charter, it is because of the well-founded
fear of its framers that unless the rights to a balanced and
healthful ecology and to health are mandated as state policies
by the Constitution itself, thereby highlighting their continuing
importance and imposing upon the state a solemn obligation
to preserve the first and protect and advance the second, the
day would not be too far when all else would be lost not only
for the present generation, but also for those to come —
generations which stand to inherit nothing but parched earth
incapable of sustaining life.
The right to a balanced and healthful ecology carries with it a
correlative duty to refrain from impairing the environment. . .
.
The LGC provisions invoked by private respondents merely seek to give
flesh and blood to the right of the people to a balanced and healthful
ecology. In fact, the General Welfare Clause, expressly mentions this
right:
Sec. 16. General Welfare. — Every local government unit shall
exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate,
or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other
things, the preservation and enrichment of culture, promote
health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among
their residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants. (emphasis
supplied).
Moreover, Section 5(c) of the LGC explicitly mandates that the general
welfare provisions of the LGC "shall be liberally interpreted to give
more powers to the local government units in accelerating economic
development and upgrading the quality of life for the people of the
community."
The LGC vests municipalities with the power to grant fishery privileges
in municipal waters and impose rentals, fees or charges therefor; to
penalize, by appropriate ordinances, the use of explosives, noxious or
poisonous substances, electricity, muro-ami, and other deleterious
methods of fishing; and to prosecute any violation of the provisions of
applicable fishery laws.24 Further, the sangguniang bayan, the
70
sangguniang panlungsod and the sangguniang panlalawigan are
directed to enact ordinances for the general welfare of the
municipality and its inhabitants, which shall include, inter alia,
ordinances that "[p]rotect the environment and impose appropriate
penalties for acts which endanger the environment such as dynamite
fishing and other forms of destructive fishing . . . and such other
activities which result in pollution, acceleration of eutrophication of
rivers and lakes, or of ecological
imbalance." 25
Finally, the centerpiece of LGC is the system of decentralization26 as
expressly mandated by the Constitution.27 Indispensable to
decentralization is devolution and the LGC expressly provides that
"[a]ny provision on a power of a local government unit shall be liberally
interpreted in its favor, and in case of doubt, any question thereon
shall be resolved in favor of devolution of powers and of the lower local
government unit. Any fair and reasonable doubt as to the existence of
the power shall be interpreted in favor of the local government unit
concerned."28 Devolution refers to the act by which the National
Government confers power and authority upon the various local
government units to perform specific functions and responsibilities.29
One of the devolved powers enumerated in the section of the LGC on
devolution is the enforcement of fishery laws in municipal waters
including the conservation of mangroves.30 This necessarily includes
the enactment of ordinances to effectively carry out such fishery laws
within the municipal waters.
The term "municipal waters," in turn, includes not only streams, lakes,
and tidal waters within the municipality, not being the subject of
private ownership and not comprised within the national parks, public
forest, timber lands, forest reserves, or fishery reserves, but also
marine waters included between two lines drawn perpendicularly to
the general coastline from points where the boundary lines of the
municipality or city touch the sea at low tide and a third line parallel
with the general coastline and fifteen kilometers from
it.31 Under P.D. No. 704, the marine waters included in municipal waters
is limited to three nautical miles from the general coastline using the
above perpendicular lines and a third parallel line.
These "fishery laws" which local government units may enforce under
Section 17(b)(2)(i) in municipal waters include: (1) P.D. No. 704; (2) P.D.
No. 1015 which, inter alia, authorizes the establishment of a "closed
season" in any Philippine water if necessary for conservation or
ecological purposes; (3) P.D. No. 1219 which provides for the
exploration, exploitation, utilization and conservation of coral
resources; (4) R.A. No. 5474, as amended by B.P. Blg. 58, which makes
it unlawful for any person, association or corporation to catch or cause
to be caught, sell, offer to sell, purchase, or have in possession any of
the fish specie called gobiidae or "ipon" during closed season; and (5)
R.A. No. 6451 which prohibits and punishes electrofishing, as well as
various issuances of the BFAR.
To those specifically devolved insofar as the control and regulation of
fishing in municipal waters and the protection of its marine
environment are concerned, must be added the following:
1. Issuance of permits to construct fish cages
within municipal waters;
2. Issuance of permits to gather aquarium
fishes within municipal waters;
3. Issuance of permits to gather kapis shells
within municipal waters;
4. Issuance of permits to gather/culture
shelled mollusks within municipal waters;
71
5. Issuance of licenses to establish seaweed
farms within municipal waters;
6. Issuance of licenses to establish culture
pearls within municipal waters;
7. Issuance of auxiliary invoice to transport
fish and fishery products; and
8. Establishment of "closed season" in
municipal waters.
These functions are covered in the Memorandum of Agreement of 5
April 1994 between the Department of Agriculture and the
Department of Interior and Local Government.
In light then of the principles of decentralization and devolution
enshrined in the LGC and the powers granted therein to local
government units under Section 16 (the General Welfare Clause), and
under Sections 149, 447(a) (1) (vi), 458 (a) (1) (vi) and 468 (a) (1) (vi),
which unquestionably involve the exercise of police power, the validity
of the questioned Ordinances cannot be doubted.
Parenthetically, we wish to add that these Ordinances find full support
under R.A. No. 7611, otherwise known as the Strategic Environmental
Plan (SEP) for Palawan Act, approved on 19 June 1992. This statute
adopts a "comprehensive framework for the sustainable development
of Palawan compatible with protecting and enhancing the natural
resources and endangered environment of the province," which "shall
serve to guide the local government of Palawan and the government
agencies concerned in the formulation and implementation of plans,
programs and projects affecting said province."32
At this time then, it would be appropriate to determine the relation
between the assailed Ordinances and the aforesaid powers of the
Sangguniang Panlungsod of the City of Puerto Princesa and the
Sangguniang Panlalawigan of the Province of Palawan to protect the
environment. To begin, we ascertain the purpose of the Ordinances as
set forth in the statement of purposes or declaration of policies quoted
earlier.
It is clear to the Court that both Ordinances have two principal
objectives or purposes: (1) to establish a "closed season" for the
species of fish or aquatic animals covered therein for a period of five
years; and (2) to protect the coral in the marine waters of the City of
Puerto Princesa and the Province of Palawan from further destruction
due to illegal fishing activities.
The accomplishment of the first objective is well within the devolved
power to enforce fishery laws in municipal waters, such as P.D. No.
1015, which allows the establishment of "closed seasons." The
devolution of such power has been expressly confirmed in the
Memorandum of Agreement of 5 April 1994 between the Department
of Agriculture and the Department of Interior and Local Government.
The realization of the second objective clearly falls within both the
general welfare clause of the LGC and the express mandate thereunder
to cities and provinces to protect the environment and impose
appropriate penalties for acts which endanger the environment.33
The destruction of coral reefs results in serious, if not irreparable,
ecological imbalance, for coral reefs are among nature's life-support
systems.34 They collect, retain and recycle nutrients for adjacent
nearshore areas such as mangroves, seagrass beds, and reef flats;
provide food for marine plants and animals; and serve as a protective
shelter for aquatic organisms.35 It is said that "[e]cologically, the reefs
are to the oceans what forests are to continents: they are shelter and
72
breeding grounds for fish and plant species that will disappear without
them."36
The prohibition against catching live fish stems, in part, from the
modern phenomenon of live-fish trade which entails the catching of
so-called exotic species of tropical fish, not only for aquarium use in
the West, but also for "the market for live banquet fish [which] is
virtually insatiable in ever more affluent Asia.37 These exotic species are
coral-dwellers, and fishermen catch them by "diving in shallow water
with corraline habitats and squirting sodium cyanide poison at passing
fish directly or onto coral crevices; once affected the fish are
immobilized [merely stunned] and then scooped by hand."38 The diver
then surfaces and dumps his catch into a submerged net attached to
the skiff. Twenty minutes later, the fish can swim normally. Back on
shore, they are placed in holding pens, and within a few weeks, they
expel the cyanide from their system and are ready to be hauled. They
are then placed in saltwater tanks or packaged in plastic bags filled with
seawater for shipment by air freight to major markets for live food
fish.39 While the fish are meant to survive, the opposite holds true for
their former home as "[a]fter the fisherman squirts the cyanide, the
first thing to perish is the reef algae, on which fish feed. Days later, the
living coral starts to expire. Soon the reef loses its function as habitat
for the fish, which eat both the algae and invertebrates that cling to
the coral. The reef becomes an underwater graveyard, its skeletal
remains brittle, bleached of all color and vulnerable to erosion from
the pounding of the waves."40 It has been found that cyanide fishing
kills most hard and soft corals within three months of repeated
application.41
The nexus then between the activities barred by Ordinance No. 15-92
of the City of Puerto Princesa and the prohibited acts provided in
Ordinance No. 2, Series of 1993 of the Province of Palawan, on one
hand, and the use of sodium cyanide, on the other, is painfully obvious.
In sum, the public purpose and reasonableness of the Ordinances may
not then be controverted.
As to Office Order No. 23, Series of 1993, issued by Acting City Mayor
Amado L. Lucero of the City of Puerto Princesa, we find nothing therein
violative of any constitutional or statutory provision. The Order refers
to the implementation of the challenged ordinance and is not the
Mayor's Permit.
The dissenting opinion of Mr. Justice Josue N. Bellosillo relies upon the
lack of authority on the part of the Sangguniang Panglungsod of Puerto
Princesa to enact Ordinance No. 15, Series of 1992, on the theory that
the subject thereof is within the jurisdiction and responsibility of the
Bureau of Fisheries and Aquatic Resources (BFAR) under P.D. No. 704,
otherwise known as the Fisheries Decree of 1975; and that, in any
event, the Ordinance is unenforceable for lack of approval by the
Secretary of the Department of Natural Resources (DNR), likewise in
accordance with P.D. No. 704.
The majority is unable to accommodate this view. The jurisdiction and
responsibility of the BFAR under P.D. No. 704, over the management,
conservation, development, protection, utilization and disposition of
all fishery and aquatic resources of the country is not all-
encompassing. First, Section 4 thereof excludes from such jurisdiction
and responsibility municipal waters, which shall be under the
municipal or city government concerned, except insofar as fishpens
and seaweed culture in municipal centers are concerned. This section
provides, however, that all municipal or city ordinances and
resolutions affecting fishing and fisheries and any disposition
thereunder shall be submitted to the Secretary of the Department of
Natural Resources for appropriate action and shall have full force and
effect only upon his approval.42
Second, it must at once be pointed out that the BFAR is no longer under
the Department of Natural Resources (now Department of
Environment and Natural Resources). Executive Order No. 967 of 30
June 1984 transferred the BFAR from the control and supervision of
73
the Minister (formerly Secretary) Of Natural Resources to the Ministry
of Agriculture and Food (MAF) and converted it into a mere staff
agency thereof, integrating its functions with the regional offices of the
MAF.
In Executive Order No. 116 of 30 January 1987, which reorganized the
MAF, the BFAR was retained as an attached agency of the MAF. And
under the Administrative Code of 1987,43 the BFAR is placed under the
Title concerning the Department of Agriculture.44
Therefore, it is incorrect to say that the challenged Ordinance of the
City of Puerto Princesa is invalid or unenforceable because it was not
approved by the Secretary of the DENR. If at all, the approval that
should be sought would be that of the Secretary of the Department of
Agriculture. However, the requirement of approval by the Secretary of
the Department of Agriculture (not DENR) of municipal ordinances
affecting fishing and fisheries in municipal waters has been dispensed
with in view of the following reasons:
(1) Section 534 (Repealing Clause) of the LGC expressly repeals or
amends Sections 16 and 29 of P.D. No. 70445 insofar as they are
inconsistent with the provisions of the LGC.
(2) As discussed earlier, under the general welfare clause of the LGC,
local government units have the power, inter alia, to enact ordinances
to enhance the right of the people to a balanced ecology. It likewise
specifically vests municipalities with the power to grant fishery
privileges in municipal waters, and impose rentals, fees or charges
therefor; to penalize, by appropriate ordinances, the use of explosives,
noxious or poisonous substances, electricity, muro-ami, and other
deleterious methods of fishing; and to prosecute any violation of the
provisions of applicable fishery laws.46 Finally, it imposes upon the
sangguniang bayan, the sangguniang panlungsod, and the sangguniang
panlalawigan the duty to enact ordinances to "[p]rotect the
 environment and impose appropriate penalties for acts which
endanger the environment such as dynamite fishing and other forms
of destructive fishing . . . and such other activities which result in
pollution, acceleration of eutrophication of rivers and lakes or of
ecological imbalance."47
In closing, we commend the Sangguniang Panlungsod of the City of
Puerto Princesa and Sangguniang Panlalawigan of the Province of
Palawan for exercising the requisite political will to enact urgently
needed legislation to protect and enhance the marine environment,
thereby sharing in the herculean task of arresting the tide of ecological
destruction. We hope that other local government units shall now be
roused from their lethargy and adopt a more vigilant stand in the battle
against the decimation of our legacy to future generations. At this time,
the repercussions of any further delay in their response may prove
disastrous, if not, irreversible.
WHEREFORE, the instant petition is DISMISSED for lack of merit and
the temporary restraining order issued on 11 November 1993 is
LIFTED.
No pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Padilla, Romero, Melo, Vitug, Francisco Panganiban and Torres,
Jr., JJ., concur.
Regalado, J., is on leave.
74
Separate Opinions
MENDOZA, J., concurring:
I fully concur in the opinion of the Court written by Justice Davide. I
write separately to emphasize two points which I believe are
important. The first is the need to uphold the presumption of validity
of the ordinances in this case in view of the total absence of evidence
to undermine their factual basis. The second is the need not to allow a
shortcircuiting of the normal process of adjudication on the mere plea
that unless we take cognizance of petitions like this, by-passing the trial
courts, alleged violations of constitutional rights will be left
unprotected, when the matter can very well be looked into by trial
courts and in fact should be brought there.
The ordinances in question in this case are conservation measures
which the local governments of Palawan have adopted in view of the
widespread destruction caused by cyanide fishing of corals within their
territorial waters. At the very least, these ordinances must be
presumed valid in the absence of evidence to show that the necessary
factual foundation for their enactment does not exist. Their
invalidation at this point can result in the untimely exoneration of
otherwise guilty parties on the basis of doubtful constitutional claims.
Ordinance No. 2-93, which the Sangguniang Panlalawigan of Palawan
adopted in 1993, prohibits, for a period of five years, the "catching,
gathering, possessing, buying, selling and shipment" of five fish and
lobsters. As originally enacted, the prohibition applied to eight species
of fish and lobsters caught in the waters of Palawan, namely, "1.
Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno), 3.
Cromileptes altivelis (Panther or Señorita), lobster (below 200 grams
and spawning), 4. Tridacna Gigas (Giant Clams or Taklobo and other
species), 5. Pinctada Margaritifera (Mother Pearl Oysters), 6. Penaeus
Monodon (Tiger Prawn — breeder size or mother), 7. Epinephelus
Suillus (Loba or Green Grouper) and 8. Family: Balistidae (Tropical
Aquarium Fishes)." 1 Later, however, the ordinance was amended to limit the ban to three
species only, namely: mameng (scaridae), panther or señorita (cromileptes altivelis) and
ornamental or aquarium fishes (balistidae). Violation of the ordinance is punishable by a fine of
P5,000.00 and/or imprisonment of not less than 6 nor more than 12 months and confiscation of
the paraphernalia and equipment used in the commission of the offense. 2
Ordinance No. 2-93 was adopted by the Sangguniang Panlalawigan on the basis of a 1992 study
submitted by the Department of Agriculture, 3 showing that, as a result of the use of cyanide and
other noxious substances for fishing, only 5% of the coral reefs in the Province of Palawan remained
in excellent condition as fish sanctuaries and habitats, while 75% was heavily damaged.
The rampant use of cyanide has been encouraged by the lucrative
trade in live fishes which are shipped not only to Manila but also
abroad, principally to Hongkong, Taiwan and Malaysia. The fishes are
sold to gourmet restaurants because of the great demand for exotic
food, to aquariums and to pet shops. In its issue of July 19, 1993. Time
Magazine 4 reported that the illicit trade in live animals is the third biggest contraband business
in the world, after drugs and arms, and identified the Philippines as a major source of tropical fishes
for the global traffic in live fishes.
The use of cyanide enables fishermen to catch fish alive and in
commercial quantity in a way not possible with the use of such
traditional methods as hook and line, fish traps, baklad and the like,
which allows only limited catch and often results in injuries to fishes
and the loss of their scales, thereby reducing their survival for
transportation abroad. 5 Cyanide does not kill fish but only stuns them. The stunned
creatures are then scooped up and placed in containers ready for shipment across borders, national
and transnational. What cyanide does, however, is poison the fragile reefs and cause them to die
and cease as fish habitats. 6
Concern over the use of cyanide in fishing and its ill effect on the marine environment also
prompted the Sangguniang Panlungsod of Puerto Princesa to pass Ordinance No. 15-92, which
makes it unlawful for any person or business enterprise or company "to ship out from Puerto
Princesa City to any point of destinations either via aircraft or seacraft of any live fish and lobster
except SEA BASS, CATFISH, MUDFISH and MILKFISH FRIES." 7 The ban is for five years, from January
1, 1993 to January 1, 1998. The penalty for violation of the ordinance is a fine of not more than
P5,000.00 or imprisonment of not more than 12 months. 8
To enforce the ordinance, the mayor of Puerto Princesa ordered the inspection of cargoes of live
fish and lobsters leaving the city by air or sea. Inspectors are to ascertain if the shipper has a permit
75
issued by the office of the city mayor. Any cargo of live fish and lobster without a permit from the
mayor's office will be "held for proper disposition." 9
The ordinances in question are police power measures, enacted by the Province of Palawan and
the City of Puerto Princesa, pursuant to the Local Government Code of 1991 which makes it in fact
their duty to enact measures to "protect the environment and impose appropriate penalties for
acts which endanger the environment, such as dynamite fishing and other forms of destructive
fishing. . . ."10 There is no basis for the claim in the dissenting opinion that the subject of these
ordinances lies within the competence of the national government. For the matter concerns a local
problem, namely, the destruction of aquatic resources in the Province of Palawan. For this reason
the Solicitor General asked for leave to withdraw from this case. On the other hand, the
Department of Agriculture submitted its report on the extent of the devastation of coral reefs
caused by illegal fishing to the Sangguniang Panlalawigan of Palawan and thereby left the solution
of the problem to be worked out by the local authorities. It would therefore set back the policy of
decentralization were this Court to sustain such a claim.
Indeed, petitioners' challenge to the validity of the ordinances does not
rest on the claim that the ordinances are beyond the power of local
governments to enact but on the ground that they deprive petitioners
of their means of livelihood and occupation and for that reason violate
the Constitution of the Philippines. For support, petitioners invoke the
following constitutional provisions:
Art. XII, §2 . . . . .
The State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea and exclusive economic
zone, and reserve its use and enjoyment exclusively to Filipino
citizens.
The Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens, as well as cooperative
fish farming, with priority to subsistence fishermen and
fishworkers in rivers, lakes, bays and lagoons.
Art. XIII, §1: The Congress shall give highest priority to the
enactment of measures that protect and enhance the right of
all the people to human dignity, reduce social, economic, and
 political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the common
good.
Id., §7: The State shall protect the rights of subsistence
fishermen, especially of local communities, to the preferential
use of the communal marine and fishing resources, both
inland and offshore. It shall provide support to such fishermen
through appropriate technology and research, adequate
financial, production, and marketing assistance, and other
services. The State shall also protect, develop, and conserve
such resources. The protection shall extend to offshore fishing
grounds of subsistence fishermen against foreign intrusion.
Fishworkers shall receive a just share from their labor in the
utilization of marine and fishing resources.
I cannot see how these provisions can, in any way, lend support to
petitioners' contention that the ordinances violate the Constitution.
These provisions refer to the duty of the State to protect the nation's
marine resources for the exclusive use and enjoyment of Filipino
citizens, to the preferential right of subsistence fishermen in the use of
such communal marine resources, and to their right to be protected,
even in offshore fishing grounds, against foreign intrusion. There is no
question here of Filipino preference over aliens in the use of marine
resources. What is in issue is the protection of marine resources in the
Province of Palawan. It was precisely to implement Art. XII, §2 that the
ordinances in question were enacted. For, without these marine
resources, it would be idle to talk of the rights of subsistence fishermen
to be preferred in the use of these resources.
It has been held that "as underlying questions of fact may condition
the constitutionality of legislation of this character, the presumption of
constitutionality must prevail in the absence of some factual
foundation of record for overthrowing the statute."11 No evidence has
76
been presented by petitioners to overthrow the factual basis of the
ordinances — that, as a result of the use of cyanide and other noxious
substances for fishing, only 5% of the coral reefs in Palawan was in
excellent condition, that 75% had been heavily destroyed, and that
because of the thriving market for live fish and lobster here and abroad
there was rampant illicit trade in live fish.
Nor has it been shown by petitioners that the local legislation here
involved is arbitrary or unreasonable. It has been held: "If the laws
passed are seen to have a reasonable relation to a proper legislative
purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied, and judicial determination
to that effect renders a court functus officio. . . . With the wisdom of
the policy adopted, with the adequacy or practicability of the law
enacted to forward it, the courts are both incompetent and
unauthorized to deal. . . ."12
It is contended that neither Provincial Ordinance No. 2-93 nor City
Ordinance No. 15-92 prohibits cyanide fishing and therefore the
prohibition against catching certain species of fish and their
transportation is "excessive and irrational." It is further argued that the
ban is unreasonable because it is not limited to cyanide fishing but
includes even legitimate fishing.
The ban on the use of cyanide and other noxious substances is already
provided for in other legislation. P.D. No. 534, §2 punishes fishing by
means of "explosives, obnoxious or poisonous substances or by the use
of electricity." Consequently, the ordinances in question can be seen
as a necessary corollary of the prohibition against illegal fishing
contained in this Decree. By prohibiting the catching of certain fishes
and lobsters, Ordinance No. 2-93 in effect discourages cyanide fishing
because, as already stated, cyanide is preferred in catching fishes
because it does not kill but only stuns them and thus preserves them
for export to the world market.
On the other hand, the claim that the ordinance sweeps overbroadly
by "absolutely prohibit[ing] the catching, gathering, buying and
shipment of live fishes and marine coral resources by any and all means
including those lawfully executed or done in the pursuit of legitimate
occupation" misconceives the principal purpose of the ordinance,
which is not so much to prohibit the use of cyanide for fishing as to
rebuild corals because of their destruction by cyanide fishing. This is
clear from the "whereas" clauses of Resolution No. 33, accompanying
Ordinance No. 2-93:
WHEREAS, scientific and factual researches and studies
disclose that only five (5) percent of the corals of our province
remain to be in excellent condition as habitat of marine coral
dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the destruction and
devastation of the corals of our province were principally due
to illegal fishing activities like dynamite fishing, sodium
cyanide fishing, use of other obnoxious substances and other
related activities;
WHEREAS, there is an imperative and urgent need to protect
and preserve the existence of the remaining excellent corals
and allow the devastated ones to reinvigorate and regenerate
themselves into vitality within the span of five (5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of R.A. 7160 otherwise
known as the Local Government Code of 1991 empowers the
Sangguniang Panlalawigan to protect the environment and
impose appropriate penalties [for] acts which endanger the
environment such as dynamite fishing and other forms of
destructive fishing, among others;
77
The principal aim of the ordinance is thus the preservation and
rehabilitation of the corals. Only indirectly is it also concerned with
prohibiting the use of cyanide. That this is the aim of the ordinance can
also be inferred from the fact that the ban imposed by it on the
catching and gathering of fishes is for a limited period (5 years)
calculated to be the time needed for the growth and regeneration of
the corals. Were the purpose of the ordinance the prohibition of the
use of cyanide for fishing, the ban would not be for a limited period
only but for all time.
I am not much moved by the plea that the ordinances deprive small
fishermen of their means of livelihood and occupation. The ban
imposed by Ordinance No. 2-93, as amended, covers only three
species, i.e., mameng (scaridae), panther or señorita (cromilepres
altivelis) and ornamental aquarium fishes (balistiedae), which are
prized in the black market. With respect to other species, it is open
season for legitimate fishermen. On the other hand, the ban imposed
by Ordinance No. 15-92 allows the transportation and shipment of sea
bass, catfish, mudfish and milkfish fries. The ban imposed by the two
ordinances is limited to five years. It is thus limited both as to scope
and as to period of effectivity. There is, on the other hand, the
imperative necessity for measures to prevent the extinction of certain
species of fish.
Indeed, the burden of showing that there is no reasonable relation
between the end and the means adopted in this case is not on the local
governments but on petitioners because of the presumption that a
regulatory statute is valid in the absence of factual evidence to the
contrary. As held in United States v. Salaveria.13 "The presumption is all
in favor of validity. . . The councilors must, in the very nature of things,
be familiar with the necessities of their particular municipality and with
all the facts and circumstances which surround the subject, and
necessitate action. The local legislative body, by enacting the
ordinance, has in effect given notice that the regulations are essential
to the well being of the people. . . . The Judiciary should not lightly set
aside legislative action when there is not a clear invasion of personal
or property rights under the guise of police regulation."
Finally, petitioners question Office Order No. 23, s. of 1993, of the city
mayor of Puerto Princesa, for being allegedly vague. This order
prohibits the transportation of fish outside the city without permit
from the mayor's office. Petitioners contend that the order does not
state under what condition a permit may be granted and,
consequently, leaves it to the absolute discretion of the mayor when
to grant and when to deny a permit. The questioned paragraph of the
order states:
The purpose of the inspection is to ascertain whether the
shipper possessed the required Mayor's Permit issued by this
Office and the shipment is covered by invoice or clearance
issued by the local office of the Bureau of Fisheries and
Aquatic Resources and as to compliance with all other existing
rules and regulations on the matter.
This contention is untenable. As the office order is intended to
implement City Ordinance No. 15-92, resort must be made to the
ordinance in order to determine the scope of such office order. As
already noted, the ordinance prohibits the shipment out of Puerto
Princesa of live fish and lobsters, with the exception of catfish, mudfish
and milkfish fries. Consequently, a permit may be denied if it is for the
transportation of fishes which are covered by the ban, but not for
those not covered by it. This is the common sense meaning of the
office order in question. Criminal laws must be precisely drawn, but, as
Justice Holmes once said, "We agree to all the generalities about not
supplying criminal laws with what they omit, but there is no canon
against using common sense in construing laws as saying what they
obviously mean."14
78
One final point. This case was brought to this Court on the bare bones
of the ordinances, on the mere claim of petitioner Alfredo Tano and his
83 copetitioners that they are subsistence fishermen. The
constitutional protection refers to small fishermen who depend on the
sea for their existence. Ten of the petitioners, led by Alfredo Tano, are
accused in the Municipal Circuit Trial Court of possession of the species
covered by Provincial Ordinance No. 2-93, while two, Roberto Lim and
Virginia Lim, are charged with violation of the two ordinances in the
City Prosecutor's Office. There is no telling from the records of this case
whether petitioners are subsistence fishermen or simply impecunious
individuals selling their catch to the big businessmen. The other
petitioners are admittedly fish traders, members of an association of
airline shippers, to whom the constitutional provisions obviously do
not apply.
The judicial invalidation of the ordinances in this case could undermine
the on-going trial of some of petitioners. Instead of leaving the
determination of the validity of the ordinances to the trial court, where
some of petitioners are facing charges, this Court will be shortcircuiting
the criminal process by prematurely passing upon the constitutional
questions and indirectly on the criminal liability of some of the
petitioners. This is a task which should await the development of
evidence of record.
Indeed because of the unsatisfactory abstractness of the record, this
case should not have been brought here. The mere fact that some of
petitioners are facing prosecution for violation of the ordinances is no
reason for entertaining their suit. Our jurisdiction is limited to cases
and controversies. Who are petitioners? What is the impact of the
ordinance on their economic situation? Are the factual bases of the
two ordinances supported by evidence? These questions must be
raised in the criminal trial or in a suit brought in the trial court so that
facts necessary to adjudicate the constitutional questions can be
presented. Nothing can take the place of the flesh and blood of
 litigation to assess the actual operation of a statute and thus ground
the judicial power more firmly.
Petitioners justify the filing of the present action in this Court on the
ground that constitutional questions must be raised at the earliest
time. That is true, but it does not mean that the questions should be
presented to the Supreme Court first hand. Moreover, the rule is not
absolute. Constitutional questions like those invoked by petitioners
can be raised anytime, even in a motion for reconsideration, if their
resolution is necessary to the decision of an actual case or controversy,
as our recent resolution15 of the constitutionality of R.A. No. 7659,
reimposing the death penalty, amply demonstrates.
Romero, Melo, Puno and Francisco, JJ., concur.
BELLOSILLO, J., dissenting:
It is settled rule that where the provisions of the law are clear and
unambiguous there is no room for interpretation. The duty of the court
is only to apply the law. The exception to such rule cannot be justified
on the sole basis of good motives or noble objectives. For it is also basic
that the end does not justify the means.
The petition raises significant constitutional questions. While
petitioners apparently instituted the action to enjoin their criminal
prosecution, the issue boils down to whether the subject ordinances
of Palawan and Puerto Princesa are valid and enforceable as to
authorize the criminal prosecution of those charged with violation
thereof.
Notwithstanding the procedural limitations strictly applied in the
majority opinion to render the petition dismissible on grounds of
79
prematurity and lack of real interest in the controversy, the case clearly
falls under the exceptions allowed by law. The petition, I submit, can
be properly treated as a special civil action for certiorari and
prohibition under Rule 65 of the Rules of Court to correct errors of
jurisdiction committed by the lower court arising from the
implementation of a void ordinance. Even if the purpose of the petition
is for declaratory relief, if the petition has far-reaching implications and
raises questions that should be resolved as they involve national
interest, it may be treated as a special civil action under Rule 65. 1 The
mere absence of a prior motion to quash the Information in the trial court should not prevent the
accused, petitioners herein, from seeking to render null and void the criminal proceedings below.
In criminal cases, when the constitutionality or validity of a law or
ordinance is essentially involved, the same may be raised at any stage
of the proceedings. It can also be considered by the appellate court at
any time if it involves the jurisdiction of the lower Court. 2 Further, under
Sec. 8, Rule 117, of the Rules on Criminal Procedure, the failure of the accused to assert any ground
of a motion to quash before he pleads to the Complaint or Information either because he did not
file a motion to quash or failed to allege the same in the motion shall be deemed a waiver of the
grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over
the offense charged, extinction of the offense or penalty, and jeopardy.
Petitioners are proper parties to set aside the proceedings in the trial
court. A proper party is one who has sustained or is in immediate
danger of sustaining an injury as a result of the act complained of.
Petitioners have been criminally charged and arrested for alleged
violation of the ordinances in question. Consequently, unless the trial
court is enjoined from continuing with the proceedings, petitioners are
in danger of being convicted and punished under ordinances which
they allege to be invalid and ineffective. In fact this Court initially
recognized the real interest of petitioners in instituting the action
when it issued a restraining order directing Judge Angel R. Miclat to
cease and desist until further orders from proceeding with the
arraignment and pre-trial of People v. Alfredo Tano, et al., Crim. Case
No. 11223, for violation of Resolution No. 2-93 of the Sangguniang
Panlalawigan of Palawan, and Ordinance No. 15-92 of the Sangguniang
Panlungsod of Puerto Princesa City.
The question to be resolved is whether Resolution No. 2-93, Office
Order No. 23 and Ordinance No. 15-92 are constitutional, valid and
enforceable. By considering the purpose and objective of the
ordinances as laudable, the majority adopts the affirmative view in
consonance with the general welfare clause and principle of devolution
well-rooted in the Local Government Code of 1991.
While I agree with the majority that the local leaders of Palawan and
Puerto Princesa City be commended for their efforts to uplift and
protect the environment and natural resources within their areas, the
general welfare clause is not the sole criterion to determine the validity
or constitutionality of the ordinances. In Magtajas v. Pryce Properties
Corporation, 3 we reiterated that the well-established tests of a valid ordinance are: (a) It must
not contravene the Constitution or any statute; (b) It must not be unfair or oppressive; (c) It must
not be partial or discriminatory; (d) It must not prohibit but may regulatetrade; (e) It must be
general and consistent with public policy; and, (f) It must not be unreasonable.
As admitted by the majority, among our existing statutes on fishing and
fishery or aquatic resources are P.D. Nos. 704, 1015 and 1219. P.D. No.
704 is titled "Revising and Consolidating All Laws and Decrees Affecting
Fishing and Fisheries." With the enactment of the Local Government
Code of 1991, only Secs. 16 and 29 of P.D. No. 704 were expressly
repealed. All the rest of the provisions of P.D. No. 704 remain valid and
effective, Sec. 4 of which is enlightening —
Sec. 4. Jurisdiction of the Bureau (of Fisheries and Aquatic
Resources). — The Bureau shall have jurisdiction and
responsibility in the management, conservation,
development, protection, utilization and disposition of all
fishery and aquatic resources of the country except municipal
waters which shall be under the municipal or city government
concerned: Provided, That fishpens and seaweed culture in
municipal centers shall be under the jurisdiction of the
Bureau: Provided, further, That all municipal or city ordinances
and resolutions affecting fishing and fisheries and any
80
disposition thereunder shall be submitted to the Secretary for
appropriate action and shall have full force and effect only
upon his approval. The Bureau shall also have authority to
regulate and supervise the production, capture and gathering
of fish and fishery/aquatic products.
There is no doubt that under P.D. No. 704 fishing, fishery and aquatic
resources in municipal waters are under the jurisdiction of the
municipal or city government concerned. However, the same decree
imposes a mandatory requirement directing municipal or city
governments to submit ordinances enacted pertinent to fishing and
fishery resources to the Secretary of Agriculture who now has control
and supervision over the Bureau of Fisheries and Aquatic Resources
(BFAR). The ordinances will attain full force and effect only upon the
approval of the Secretary of Agriculture.
Ordinance 15-92 of Puerto Princesa City, admittedly, was not
submitted to the Secretary of Agriculture through the BFAR for
approval. Such failure of compliance with the law prevented it from
becoming valid and effective. Consequently, Office Order No. 23 of the
Mayor of Puerto Princesa City which seeks to implement and enforce
Ordinance No. 15-92 is also ineffective as there is nothing to
implement.
To say that Sec. 4 of P.D. No. 704 was impliedly repealed by the Local
Government Code is gratuitous. For, if it was the intention of the
legislature to dispense with the requirement of prior approval by the
Secretary of Agriculture of ordinances pertinent to fishery resources, it
would. have expressly repealed Sec. 4 when, in fact, it did so with Secs.
16 and 29 of P.D. No. 704. Cases abound holding that a repeal by
implication is not presumed or favored considering that the legislature
is presumed to be aware of existing laws; ordinarily, if it intends to
revoke a statute it would manifest such intention in express
terms. 4 Before such a repeal is deemed to exist it should be shown that the statutes or statutory
provisions deal with the same subject matter and that the latter be inconsistent with the former.
There must be a showing of repugnancy clear and convincing in character. The language used in
the latter statute must be such as to render it irreconcilable with what has been formerly enacted.
An inconsistency that falls short of that standard does not suffice. In fact, there is no inconsistency
between the Local Government Code and P.D. No. 704 as amended. While the Local Government
Code vests power upon the local government to enact ordinances for the general welfare of its
inhabitants, such power is subject to certain limitations imposed by the Code itself and by other
statutes. When the legislature failed to repeal Sec. 4 of P.D. No. 704 it accepted and recognized a
limitation on the power of the local government to enact ordinances relative to matters affecting
fishery and aquatic resources. A reading of particular provisions of the Local Government Code
itself will reveal that devolution on the powers of the local government pertaining to the protection
of environment is limited and not all-encompassing, as will be discussed in the succeeding
paragraphs.
Further, while the Local Government Code is a general law on the
powers, responsibilities and composition of different local government
units, P.D. No. 704 is a special law dealing with the protection and
conservation of fishing and aquatic resources including those in the
municipal waters. Hence, the special law should prevail over the
general law.
There is also P.D. No. 1015 which vests upon the Secretary of
Agriculture the authority to establish closed seasons. Another existing
law on fisheries which has not been repealed by the Local Government
Code is P.D. No. 1219, which provides for the exploration, exploitation,
utilization and conservation of coral resources. Section 4 thereof
provides that the decree shall be implemented by the Secretary of
Environment and Natural Resources who shall have jurisdiction and
responsibility in the exploration, exploitation, utilization and
conservation of coral resources. Section 6 authorizes the Secretary to
issue special permit to any person or institution to gather in limited
quantities any coral for scientific or educational purposes. Section 10
empowers the Secretary to promulgate rules and regulations for the
implementation of this law.
It is true that police power can be exercised through the general
welfare clause. But, while police power is inherent in a state, it is not
so in municipal corporations or local governments. In order that a local
government may exercise police power, there must be a legislative
81
grant which necessarily sets the limits for the exercise of the power. 5 In
this case, Congress has enacted the Local Government Code which provides the standards as well
as the limitations in the exercise of the police power by the local government unit.
Section 2 of the Local Government Code provides for a system of
decentralization whereby local government units are given more
powers, authority, responsibilities and resources, and the process shall
proceed from the national government to the local government units.
However, under Sec 3, par. (i), of the Local Government Code, the
operative principles of decentralization upon the environment and
natural resources are not absolute when it is provided therein that
"local government units shall share with the national government the
responsibility in the management and maintenance of ecological
balance within their territorial jurisdiction, subject to the provisions of
this Code and national policies." The national policies mentioned here
refer to existing policies which the DENR and other government
agencies concerned with the environment may implement at any given
moment. The national policies are embodied in existing laws, rules and
regulations pertaining to environment and natural resources, such as
P.D. Nos. 704 and 1219 relating to fishery resources. The above
provision was crafted to make sure that local government enactments
do not supplant or negate national government policies on
environment. 6 This is precisely the reason why the Local Government Code did not repeal
Sec. 4 of P.D. NO. 704 requiring prior submission to and approval by the Secretary of Agriculture of
ordinances relative to fishery and aquatic resources. Needless to stress, the approval of the
Secretary is necessary in order to ensure that these ordinances are in accordance with the laws on
fisheries and national policies. Likewise, the jurisdiction of the Secretary of Environment and
Natural Resources over coral resources under P.D. No. 1219 remains.
The core of the devolution adopted by the Local Government Code is
found in Sec. 17 thereof which reiterates the basic services and
facilities to be rendered by the local governments. With respect to the
protection and conservation of fisheries, Sec. 17, par. 2 (i), specifically
provides that the municipality shall conduct "extension and on-site
research services and facilities related to agriculture and fishery
activities which include dispersal of livestock and poultry, fingerlings
and other seeding materials for aquaculture
. . . . and enforcement of fishery laws in municipal waters including the
conservation of mangroves . . . ." The power devolved upon the
municipality under the Local Government Code is the enforcement of
existing fishery laws of the State and not the enactment thereof. While
a local government unit may adopt ordinances upon subjects covered
by law or statute, such ordinances should be in accordance with and
not repugnant to the law. 7 In view thereof, ordinances which may be enacted by the
municipality or city should be pursuant to the provisions of P.D. Nos. 704, 1015 and 1219. Thus,
under the provisions of Secs. 447, par. 1 (vi), 458, par. 1 (vi) and 468, par. 1 (vi), the municipality,
city and province respectively may approve ordinances protecting the environment by specifically
penalizing only those acts which endanger the environment such as dynamite fishing and other
forms of destructive fishing which are already prohibited under P.D. Nos. 704 and 1219, and other
laws on illegal fishing. 8
The questioned ordinances may also be struck down for being not only a prohibitory legislation but
also an unauthorized exercise of delegation of powers. An objective, however worthy or desirable
it may be, such as the protection and conservation of our fisheries in this case, can be attained by
a measure that does not encompass too wide a field. The purpose can be achieved by reasonable
restrictions rather than by absolute prohibition. Local governments are not possessed with
prohibitory powers but only regulatory powers under the general welfare clause. 9 They cannot
therefore exceed the powers granted to them by the Code by altogether prohibiting fishing and
selling for five (5) years all live fishes through Ordinance No. 15-92 and coral organisms through
Ordinance No. 2-93 involving even lawful methods of fishing.
These prohibitions are tantamount to the establishment of a closed
season for fish and aquatic resources which authority is not among
those powers vested by the Local Government Code to the local
government units. For the authority to establish a closed season for
fisheries is vested upon the Secretary of Agriculture by virtue of P.D.
Nos. 704 and 1015 and in the Secretary of Environment and Natural
resources pursuant to P.D. No. 1219 in relation to coral resources. The
power of the local governments is confined and limited to ensuring
that these national fishery laws are implemented and enforced within
their territorial jurisdictions. Hence, any memorandum of agreement
which might have been executed by the Department of Agriculture or
Department of Environment and Natural Resources granting additional
powers and functions to the local governments which are not vested
upon the latter by the Local Government Code because such powers
82
are covered by existing statutes, is an undue delegation of power and,
consequently, null and void.
The majority also cites R.A. No. 7611, otherwise known as the Strategic
Environmental Plan (SEP) for Palawan Act, as proof of the power of the
local governments of Palawan and Puerto Princesa City to issue the
assailed ordinances. Although the objectives of R.A. No. 7611 and of
the ordinances are one and the same, i.e., the protection, conservation
and development of natural resources, the former does not grant
additional powers to the local governments pertaining to the
environment. In fact, the law adopts a comprehensive framework
which shall serve to direct and guide local governments and national
government agencies in the implementation of programs and projects
affecting Palawan. With the enactment of this Act, the local
governments are mandated to coordinate and align their
developmental plans, projects and budgets in accord with the
framework of the SEP. It can be said that this is another limitation on
the exercise of police power by the local governments of Palawan and
Puerto Princesa City because the governance, implementation and
policy direction of the SEP shall be exercised by the Palawan Council
for Sustainable Development (PCSD) which is under the Office of the
President.
Finally, I find unreasonable Resolution No. 2-93 of Palawan and
Ordinance No. 15-92 of Puerto Princesa City. The prohibitions set forth
are not germane to the accomplishment of their goals. Ordinance No.
15-92 is aimed to free effectively the marine resources of Puerto
Princesa from cyanide and other obnoxious substances. But the means
to achieve this objective borders on the excessive and irrational, for
the edict would absolutely ban the shipment of live fishes and lobsters
out of the city for a period of five (5) years without prohibiting cyanide
fishing itself which is the professed goal of the ordinance. The purpose
of Resolution No. 2-93, on the other hand, is to protect and preserve
all marine coral-dwelling organisms from devastation and destruction
by illegal fishing activities, e.g., dynamite fishing, sodium cyanide
 fishing, and the use of other obnoxious substances. But in absolutely
prohibiting the catching, gathering, buying and shipment of live fishes
and marine coral resources by any means including those lawfully
executed or done in the pursuit of legitimate occupation, the
ordinance overstepped the reasonable limits and boundaries of
its raison d'etre. This I cannot help viewing as plain arbitrariness
masquerading as police power. For the consequent deprivation of the
main source of livelihood of the people of Palawan can only be
regarded as utter depravation of this awesome power of the State.
For all the foregoing, I vote to grant the petition.
Kapunan and Hermosisima, Jr., JJ., concur.
Separate Opinions
MENDOZA, J., concurring:
I fully concur in the opinion of the Court written by Justice Davide. I
write separately to emphasize two points which I believe are
important. The first is the need to uphold the presumption of validity
of the ordinances in this case in view of the total absence of evidence
to undermine their factual basis. The second is the need not to allow a
shortcircuiting of the normal process of adjudication on the mere plea
that unless we take cognizance of petitions like this, by-passing the trial
courts, alleged violations of constitutional rights will be left
unprotected, when the matter can very well be looked into by trial
courts and in fact should be brought there.
The ordinances in question in this case are conservation measures
which the local governments of Palawan have adopted in view of the
widespread destruction caused by cyanide fishing of corals within their
83
territorial waters. At the very least, these ordinances must be
presumed valid in the absence of evidence to show that the necessary
factual foundation for their enactment does not exist. Their
invalidation at this point can result in the untimely exoneration of
otherwise guilty parties on the basis of doubtful constitutional claims.
Ordinance No. 2-93, which the Sangguniang Panlalawigan of Palawan
adopted in 1993, prohibits, for a period of five years, the "catching,
gathering, possessing, buying, selling and shipment" of five fish and
lobsters. As originally enacted, the prohibition applied to eight species
of fish and lobsters caught in the waters of Palawan, namely, "1.
Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno), 3.
Cromileptes altivelis (Panther or Señorita), lobster (below 200 grams
and spawning), 4. Tridacna Gigas (Giant Clams or Taklobo and other
species), 5. Pinctada Margaritifera (Mother Pearl Oysters), 6. Penaeus
Monodon (Tiger Prawn — breeder size or mother), 7. Epinephelus
Suillus (Loba or Green Grouper) and 8. Family: Balistidae (Tropical
Aquarium Fishes)." 1 Later, however, the ordinance was amended to limit the ban to three
species only, namely: mameng (scaridae), panther or señorita (cromileptes altivelis) and
ornamental or aquarium fishes (balistidae). Violation of the ordinance is punishable by a fine of
P5,000.00 and/or imprisonment of not less than 6 nor more than 12 months and confiscation of
the paraphernalia and equipment used in the commission of the offense. 2
Ordinance No. 2-93 was adopted by the Sangguniang Panlalawigan on the basis of a 1992 study
submitted by the Department of Agriculture, 3 showing that, as a result of the use of cyanide and
other noxious substances for fishing, only 5% of the coral reefs in the Province of Palawan remained
in excellent condition as fish sanctuaries and habitats, while 75% was heavily damaged.
The rampant use of cyanide has been encouraged by the lucrative
trade in live fishes which are shipped not only to Manila but also
abroad, principally to Hongkong, Taiwan and Malaysia. The fishes are
sold to gourmet restaurants because of the great demand for exotic
food, to aquariums and to pet shops. In its issue of July 19, 1993. Time
Magazine 4 reported that the illicit trade in live animals is the third biggest contraband business
in the world, after drugs and arms, and identified the Philippines as a major source of tropical fishes
for the global traffic in live fishes.
The use of cyanide enables fishermen to catch fish alive and in Art. XII, §2 . . . . .
commercial quantity in a way not possible with the use of such
traditional methods as hook and line, fish traps, baklad and the like, The State shall protect the nation's marine wealth in its
which allows only limited catch and often results in injuries to fishes archipelagic waters, territorial sea and exclusive economic
and the loss of their scales, thereby reducing their survival for zone, and reserve its use and enjoyment exclusively to Filipino
transportation abroad. 5 Cyanide does not kill fish but only stuns them. The stunned citizens.
creatures are then scooped up and placed in containers ready for shipment across borders, national
and transnational. What cyanide does, however, is poison the fragile reefs and cause them to die
and cease as fish habitats. 6 The Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens, as well as cooperative
Concern over the use of cyanide in fishing and its ill effect on the marine environment also fish farming, with priority to subsistence fishermen and
prompted the Sangguniang Panlungsod of Puerto Princesa to pass Ordinance No. 15-92, which
makes it unlawful for any person or business enterprise or company "to ship out from Puerto fishworkers in rivers, lakes, bays and lagoons.
Princesa City to any point of destinations either via aircraft or seacraft of any live fish and lobster
except SEA BASS, CATFISH, MUDFISH and MILKFISH FRIES." 7 The ban is for five years, from January
1, 1993 to January 1, 1998. The penalty for violation of the ordinance is a fine of not more than
Art. XIII, §1: The Congress shall give highest priority to the
P5,000.00 or imprisonment of not more than 12 months. 8 enactment of measures that protect and enhance the right of
all the people to human dignity, reduce social, economic, and
To enforce the ordinance, the mayor of Puerto Princesa ordered the inspection of cargoes of live political inequalities, and remove cultural inequities by
fish and lobsters leaving the city by air or sea. Inspectors are to ascertain if the shipper has a permit
issued by the office of the city mayor. Any cargo of live fish and lobster without a permit from the equitably diffusing wealth and political power for the common
mayor's office will be "held for proper disposition." 9 good.

The ordinances in question are police power measures, enacted by the Province of Palawan and
the City of Puerto Princesa, pursuant to the Local Government Code of 1991 which makes it in fact
Id., §7: The State shall protect the rights of subsistence
their duty to enact measures to "protect the environment and impose appropriate penalties for fishermen, especially of local communities, to the preferential
acts which endanger the environment, such as dynamite fishing and other forms of destructive use of the communal marine and fishing resources, both
fishing. . . ."10 There is no basis for the claim in the dissenting opinion that the subject of these
ordinances lies within the competence of the national government. For the matter concerns a local inland and offshore. It shall provide support to such fishermen
problem, namely, the destruction of aquatic resources in the Province of Palawan. For this reason through appropriate technology and research, adequate
the Solicitor General asked for leave to withdraw from this case. On the other hand, the
Department of Agriculture submitted its report on the extent of the devastation of coral reefs
financial, production, and marketing assistance, and other
caused by illegal fishing to the Sangguniang Panlalawigan of Palawan and thereby left the solution services. The State shall also protect, develop, and conserve
of the problem to be worked out by the local authorities. It would therefore set back the policy of such resources. The protection shall extend to offshore fishing
decentralization were this Court to sustain such a claim.
grounds of subsistence fishermen against foreign intrusion.
Fishworkers shall receive a just share from their labor in the
Indeed, petitioners' challenge to the validity of the ordinances does not
utilization of marine and fishing resources.
rest on the claim that the ordinances are beyond the power of local
governments to enact but on the ground that they deprive petitioners
I cannot see how these provisions can, in any way, lend support to
of their means of livelihood and occupation and for that reason violate
petitioners' contention that the ordinances violate the Constitution.
the Constitution of the Philippines. For support, petitioners invoke the
These provisions refer to the duty of the State to protect the nation's
following constitutional provisions:

84
marine resources for the exclusive use and enjoyment of Filipino
citizens, to the preferential right of subsistence fishermen in the use of
such communal marine resources, and to their right to be protected,
even in offshore fishing grounds, against foreign intrusion. There is no
question here of Filipino preference over aliens in the use of marine
resources. What is in issue is the protection of marine resources in the
Province of Palawan. It was precisely to implement Art. XII, §2 that the
ordinances in question were enacted. For, without these marine
resources, it would be idle to talk of the rights of subsistence fishermen
to be preferred in the use of these resources.
It has been held that "as underlying questions of fact may condition
the constitutionality of legislation of this character, the presumption of
constitutionality must prevail in the absence of some factual
foundation of record for overthrowing the statute."11 No evidence has
been presented by petitioners to overthrow the factual basis of the
ordinances — that, as a result of the use of cyanide and other noxious
substances for fishing, only 5% of the coral reefs in Palawan was in
excellent condition, that 75% had been heavily destroyed, and that
because of the thriving market for live fish and lobster here and abroad
there was rampant illicit trade in live fish.
Nor has it been shown by petitioners that the local legislation here
involved is arbitrary or unreasonable. It has been held: "If the laws
passed are seen to have a reasonable relation to a proper legislative
purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied, and judicial determination
to that effect renders a court functus officio. . . . With the wisdom of
the policy adopted, with the adequacy or practicability of the law
enacted to forward it, the courts are both incompetent and
unauthorized to deal. . . ."12
It is contended that neither Provincial Ordinance No. 2-93 nor City
Ordinance No. 15-92 prohibits cyanide fishing and therefore the
85
prohibition against catching certain species of fish and their
transportation is "excessive and irrational." It is further argued that the
ban is unreasonable because it is not limited to cyanide fishing but
includes even legitimate fishing.
The ban on the use of cyanide and other noxious substances is already
provided for in other legislation. P.D. No. 534, §2 punishes fishing by
means of "explosives, obnoxious or poisonous substances or by the use
of electricity." Consequently, the ordinances in question can be seen
as a necessary corollary of the prohibition against illegal fishing
contained in this Decree. By prohibiting the catching of certain fishes
and lobsters, Ordinance No. 2-93 in effect discourages cyanide fishing
because, as already stated, cyanide is preferred in catching fishes
because it does not kill but only stuns them and thus preserves them
for export to the world market.
On the other hand, the claim that the ordinance sweeps overbroadly
by "absolutely prohibit[ing] the catching, gathering, buying and
shipment of live fishes and marine coral resources by any and all means
including those lawfully executed or done in the pursuit of legitimate
occupation" misconceives the principal purpose of the ordinance,
which is not so much to prohibit the use of cyanide for fishing as to
rebuild corals because of their destruction by cyanide fishing. This is
clear from the "whereas" clauses of Resolution No. 33, accompanying
Ordinance No. 2-93:
WHEREAS, scientific and factual researches and studies
disclose that only five (5) percent of the corals of our province
remain to be in excellent condition as habitat of marine coral
dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the destruction and
devastation of the corals of our province were principally due
to illegal fishing activities like dynamite fishing, sodium
 cyanide fishing, use of other obnoxious substances and other
related activities;
WHEREAS, there is an imperative and urgent need to protect
and preserve the existence of the remaining excellent corals
and allow the devastated ones to reinvigorate and regenerate
themselves into vitality within the span of five (5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of R.A. 7160 otherwise
known as the Local Government Code of 1991 empowers the
Sangguniang Panlalawigan to protect the environment and
impose appropriate penalties [for] acts which endanger the
environment such as dynamite fishing and other forms of
destructive fishing, among others;
The principal aim of the ordinance is thus the preservation and
rehabilitation of the corals. Only indirectly is it also concerned with
prohibiting the use of cyanide. That this is the aim of the ordinance can
also be inferred from the fact that the ban imposed by it on the
catching and gathering of fishes is for a limited period (5 years)
calculated to be the time needed for the growth and regeneration of
the corals. Were the purpose of the ordinance the prohibition of the
use of cyanide for fishing, the ban would not be for a limited period
only but for all time.
I am not much moved by the plea that the ordinances deprive small
fishermen of their means of livelihood and occupation. The ban
imposed by Ordinance No. 2-93, as amended, covers only three
species, i.e., mameng (scaridae), panther or señorita (cromilepres
altivelis) and ornamental aquarium fishes (balistiedae), which are
prized in the black market. With respect to other species, it is open
season for legitimate fishermen. On the other hand, the ban imposed
by Ordinance No. 15-92 allows the transportation and shipment of sea
bass, catfish, mudfish and milkfish fries. The ban imposed by the two
86
ordinances is limited to five years. It is thus limited both as to scope
and as to period of effectivity. There is, on the other hand, the
imperative necessity for measures to prevent the extinction of certain
species of fish.
Indeed, the burden of showing that there is no reasonable relation
between the end and the means adopted in this case is not on the local
governments but on petitioners because of the presumption that a
regulatory statute is valid in the absence of factual evidence to the
contrary. As held in United States v. Salaveria.13 "The presumption is all
in favor of validity. . . The councilors must, in the very nature of things,
be familiar with the necessities of their particular municipality and with
all the facts and circumstances which surround the subject, and
necessitate action. The local legislative body, by enacting the
ordinance, has in effect given notice that the regulations are essential
to the well being of the people. . . . The Judiciary should not lightly set
aside legislative action when there is not a clear invasion of personal
or property rights under the guise of police regulation."
Finally, petitioners question Office Order No. 23, s. of 1993, of the city
mayor of Puerto Princesa, for being allegedly vague. This order
prohibits the transportation of fish outside the city without permit
from the mayor's office. Petitioners contend that the order does not
state under what condition a permit may be granted and,
consequently, leaves it to the absolute discretion of the mayor when
to grant and when to deny a permit. The questioned paragraph of the
order states:
The purpose of the inspection is to ascertain whether the
shipper possessed the required Mayor's Permit issued by this
Office and the shipment is covered by invoice or clearance
issued by the local office of the Bureau of Fisheries and
Aquatic Resources and as to compliance with all other existing
rules and regulations on the matter.
This contention is untenable. As the office order is intended to
implement City Ordinance No. 15-92, resort must be made to the
ordinance in order to determine the scope of such office order. As
already noted, the ordinance prohibits the shipment out of Puerto
Princesa of live fish and lobsters, with the exception of catfish, mudfish
and milkfish fries. Consequently, a permit may be denied if it is for the
transportation of fishes which are covered by the ban, but not for
those not covered by it. This is the common sense meaning of the
office order in question. Criminal laws must be precisely drawn, but, as
Justice Holmes once said, "We agree to all the generalities about not
supplying criminal laws with what they omit, but there is no canon
against using common sense in construing laws as saying what they
obviously mean."14
One final point. This case was brought to this Court on the bare bones
of the ordinances, on the mere claim of petitioner Alfredo Tano and his
83 copetitioners that they are subsistence fishermen. The
constitutional protection refers to small fishermen who depend on the
sea for their existence. Ten of the petitioners, led by Alfredo Tano, are
accused in the Municipal Circuit Trial Court of possession of the species
covered by Provincial Ordinance No. 2-93, while two, Roberto Lim and
Virginia Lim, are charged with violation of the two ordinances in the
City Prosecutor's Office. There is no telling from the records of this case
whether petitioners are subsistence fishermen or simply impecunious
individuals selling their catch to the big businessmen. The other
petitioners are admittedly fish traders, members of an association of
airline shippers, to whom the constitutional provisions obviously do
not apply.
The judicial invalidation of the ordinances in this case could undermine
the on-going trial of some of petitioners. Instead of leaving the
determination of the validity of the ordinances to the trial court, where
some of petitioners are facing charges, this Court will be shortcircuiting
the criminal process by prematurely passing upon the constitutional
questions and indirectly on the criminal liability of some of the
87
petitioners. This is a task which should await the development of
evidence of record.
Indeed because of the unsatisfactory abstractness of the record, this
case should not have been brought here. The mere fact that some of
petitioners are facing prosecution for violation of the ordinances is no
reason for entertaining their suit. Our jurisdiction is limited to cases
and controversies. Who are petitioners? What is the impact of the
ordinance on their economic situation? Are the factual bases of the
two ordinances supported by evidence? These questions must be
raised in the criminal trial or in a suit brought in the trial court so that
facts necessary to adjudicate the constitutional questions can be
presented. Nothing can take the place of the flesh and blood of
litigation to assess the actual operation of a statute and thus ground
the judicial power more firmly.
Petitioners justify the filing of the present action in this Court on the
ground that constitutional questions must be raised at the earliest
time. That is true, but it does not mean that the questions should be
presented to the Supreme Court first hand. Moreover, the rule is not
absolute. Constitutional questions like those invoked by petitioners
can be raised anytime, even in a motion for reconsideration, if their
resolution is necessary to the decision of an actual case or controversy,
as our recent resolution15 of the constitutionality of R.A. No. 7659,
reimposing the death penalty, amply demonstrates.
Romero, Melo, Puno and Francisco, JJ., concur.
BELLOSILLO, J., dissenting:
It is settled rule that where the provisions of the law are clear and
unambiguous there is no room for interpretation. The duty of the court
is only to apply the law. The exception to such rule cannot be justified
on the sole basis of good motives or noble objectives. For it is also basic
that the end does not justify the means.
The petition raises significant constitutional questions. While
petitioners apparently instituted the action to enjoin their criminal
prosecution, the issue boils down to whether the subject ordinances
of Palawan and Puerto Princesa are valid and enforceable as to
authorize the criminal prosecution of those charged with violation
thereof.
Notwithstanding the procedural limitations strictly applied in the
majority opinion to render the petition dismissible on grounds of
prematurity and lack of real interest in the controversy, the case clearly
falls under the exceptions allowed by law. The petition, I submit, can
be properly treated as a special civil action for certiorari and
prohibition under Rule 65 of the Rules of Court to correct errors of
jurisdiction committed by the lower court arising from the
implementation of a void ordinance. Even if the purpose of the petition
is for declaratory relief, if the petition has far-reaching implications and
raises questions that should be resolved as they involve national
interest, it may be treated as a special civil action under Rule 65. 1 The
mere absence of a prior motion to quash the Information in the trial court should not prevent the
accused, petitioners herein, from seeking to render null and void the criminal proceedings below.
In criminal cases, when the constitutionality or validity of a law or
ordinance is essentially involved, the same may be raised at any stage
of the proceedings. It can also be considered by the appellate court at
any time if it involves the jurisdiction of the lower Court. 2 Further, under
Sec. 8, Rule 117, of the Rules on Criminal Procedure, the failure of the accused to assert any ground
of a motion to quash before he pleads to the Complaint or Information either because he did not
file a motion to quash or failed to allege the same in the motion shall be deemed a waiver of the
grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over
the offense charged, extinction of the offense or penalty, and jeopardy.
88
Petitioners are proper parties to set aside the proceedings in the trial
court. A proper party is one who has sustained or is in immediate
danger of sustaining an injury as a result of the act complained of.
Petitioners have been criminally charged and arrested for alleged
violation of the ordinances in question. Consequently, unless the trial
court is enjoined from continuing with the proceedings, petitioners are
in danger of being convicted and punished under ordinances which
they allege to be invalid and ineffective. In fact this Court initially
recognized the real interest of petitioners in instituting the action
when it issued a restraining order directing Judge Angel R. Miclat to
cease and desist until further orders from proceeding with the
arraignment and pre-trial of People v. Alfredo Tano, et al., Crim. Case
No. 11223, for violation of Resolution No. 2-93 of the Sangguniang
Panlalawigan of Palawan, and Ordinance No. 15-92 of the Sangguniang
Panlungsod of Puerto Princesa City.
The question to be resolved is whether Resolution No. 2-93, Office
Order No. 23 and Ordinance No. 15-92 are constitutional, valid and
enforceable. By considering the purpose and objective of the
ordinances as laudable, the majority adopts the affirmative view in
consonance with the general welfare clause and principle of devolution
well-rooted in the Local Government Code of 1991.
While I agree with the majority that the local leaders of Palawan and
Puerto Princesa City be commended for their efforts to uplift and
protect the environment and natural resources within their areas, the
general welfare clause is not the sole criterion to determine the validity
or constitutionality of the ordinances. In Magtajas v. Pryce Properties
Corporation, 3 we reiterated that the well-established tests of a valid ordinance are: (a) It must
not contravene the Constitution or any statute; (b) It must not be unfair or oppressive; (c) It must
not be partial or discriminatory; (d) It must not prohibit but may regulatetrade; (e) It must be
general and consistent with public policy; and, (f) It must not be unreasonable.
As admitted by the majority, among our existing statutes on fishing and
fishery or aquatic resources are P.D. Nos. 704, 1015 and 1219. P.D. No.
704 is titled "Revising and Consolidating All Laws and Decrees Affecting
Fishing and Fisheries." With the enactment of the Local Government
Code of 1991, only Secs. 16 and 29 of P.D. No. 704 were expressly
repealed. All the rest of the provisions of P.D. No. 704 remain valid and
effective, Sec. 4 of which is enlightening —
Sec. 4. Jurisdiction of the Bureau (of Fisheries and Aquatic
Resources). — The Bureau shall have jurisdiction and
responsibility in the management, conservation,
development, protection, utilization and disposition of all
fishery and aquatic resources of the country except municipal
waters which shall be under the municipal or city government
concerned: Provided, That fishpens and seaweed culture in
municipal centers shall be under the jurisdiction of the
Bureau: Provided, further, That all municipal or city ordinances
and resolutions affecting fishing and fisheries and any
disposition thereunder shall be submitted to the Secretary for
appropriate action and shall have full force and effect only
upon his approval. The Bureau shall also have authority to
regulate and supervise the production, capture and gathering
of fish and fishery/aquatic products.
There is no doubt that under P.D. No. 704 fishing, fishery and aquatic
resources in municipal waters are under the jurisdiction of the
municipal or city government concerned. However, the same decree
imposes a mandatory requirement directing municipal or city
governments to submit ordinances enacted pertinent to fishing and
fishery resources to the Secretary of Agriculture who now has control
and supervision over the Bureau of Fisheries and Aquatic Resources
(BFAR). The ordinances will attain full force and effect only upon the
approval of the Secretary of Agriculture.
Ordinance 15-92 of Puerto Princesa City, admittedly, was not
submitted to the Secretary of Agriculture through the BFAR for
89
approval. Such failure of compliance with the law prevented it from
becoming valid and effective. Consequently, Office Order No. 23 of the
Mayor of Puerto Princesa City which seeks to implement and enforce
Ordinance No. 15-92 is also ineffective as there is nothing to
implement.
To say that Sec. 4 of P.D. No. 704 was impliedly repealed by the Local
Government Code is gratuitous. For, if it was the intention of the
legislature to dispense with the requirement of prior approval by the
Secretary of Agriculture of ordinances pertinent to fishery resources, it
would. have expressly repealed Sec. 4 when, in fact, it did so with Secs.
16 and 29 of P.D. No. 704. Cases abound holding that a repeal by
implication is not presumed or favored considering that the legislature
is presumed to be aware of existing laws; ordinarily, if it intends to
revoke a statute it would manifest such intention in express
terms. 4 Before such a repeal is deemed to exist it should be shown that the statutes or statutory
provisions deal with the same subject matter and that the latter be inconsistent with the former.
There must be a showing of repugnancy clear and convincing in character. The language used in
the latter statute must be such as to render it irreconcilable with what has been formerly enacted.
An inconsistency that falls short of that standard does not suffice. In fact, there is no inconsistency
between the Local Government Code and P.D. No. 704 as amended. While the Local Government
Code vests power upon the local government to enact ordinances for the general welfare of its
inhabitants, such power is subject to certain limitations imposed by the Code itself and by other
statutes. When the legislature failed to repeal Sec. 4 of P.D. No. 704 it accepted and recognized a
limitation on the power of the local government to enact ordinances relative to matters affecting
fishery and aquatic resources. A reading of particular provisions of the Local Government Code
itself will reveal that devolution on the powers of the local government pertaining to the protection
of environment is limited and not all-encompassing, as will be discussed in the succeeding
paragraphs.
Further, while the Local Government Code is a general law on the
powers, responsibilities and composition of different local government
units, P.D. No. 704 is a special law dealing with the protection and
conservation of fishing and aquatic resources including those in the
municipal waters. Hence, the special law should prevail over the
general law.
There is also P.D. No. 1015 which vests upon the Secretary of
Agriculture the authority to establish closed seasons. Another existing
law on fisheries which has not been repealed by the Local Government
Code is P.D. No. 1219, which provides for the exploration, exploitation,
utilization and conservation of coral resources. Section 4 thereof
provides that the decree shall be implemented by the Secretary of
Environment and Natural Resources who shall have jurisdiction and
responsibility in the exploration, exploitation, utilization and
conservation of coral resources. Section 6 authorizes the Secretary to
issue special permit to any person or institution to gather in limited
quantities any coral for scientific or educational purposes. Section 10
empowers the Secretary to promulgate rules and regulations for the
implementation of this law.
It is true that police power can be exercised through the general
welfare clause. But, while police power is inherent in a state, it is not
so in municipal corporations or local governments. In order that a local
government may exercise police power, there must be a legislative
grant which necessarily sets the limits for the exercise of the power. 5 In
this case, Congress has enacted the Local Government Code which provides the standards as well
as the limitations in the exercise of the police power by the local government unit.
Section 2 of the Local Government Code provides for a system of
decentralization whereby local government units are given more
powers, authority, responsibilities and resources, and the process shall
proceed from the national government to the local government units.
However, under Sec 3, par. (i), of the Local Government Code, the
operative principles of decentralization upon the environment and
natural resources are not absolute when it is provided therein that
"local government units shall share with the national government the
responsibility in the management and maintenance of ecological
balance within their territorial jurisdiction, subject to the provisions of
this Code and national policies." The national policies mentioned here
refer to existing policies which the DENR and other government
agencies concerned with the environment may implement at any given
90
moment. The national policies are embodied in existing laws, rules and
regulations pertaining to environment and natural resources, such as
P.D. Nos. 704 and 1219 relating to fishery resources. The above
provision was crafted to make sure that local government enactments
do not supplant or negate national government policies on
environment. 6 This is precisely the reason why the Local Government Code did not repeal
Sec. 4 of P.D. NO. 704 requiring prior submission to and approval by the Secretary of Agriculture of
ordinances relative to fishery and aquatic resources. Needless to stress, the approval of the
Secretary is necessary in order to ensure that these ordinances are in accordance with the laws on
fisheries and national policies. Likewise, the jurisdiction of the Secretary of Environment and
Natural Resources over coral resources under P.D. No. 1219 remains.
The core of the devolution adopted by the Local Government Code is
found in Sec. 17 thereof which reiterates the basic services and
facilities to be rendered by the local governments. With respect to the
protection and conservation of fisheries, Sec. 17, par. 2 (i), specifically
provides that the municipality shall conduct "extension and on-site
research services and facilities related to agriculture and fishery
activities which include dispersal of livestock and poultry, fingerlings
and other seeding materials for aquaculture
. . . . and enforcement of fishery laws in municipal waters including the
conservation of mangroves . . . ." The power devolved upon the
municipality under the Local Government Code is the enforcement of
existing fishery laws of the State and not the enactment thereof. While
a local government unit may adopt ordinances upon subjects covered
by law or statute, such ordinances should be in accordance with and
not repugnant to the law. 7 In view thereof, ordinances which may be enacted by the
municipality or city should be pursuant to the provisions of P.D. Nos. 704, 1015 and 1219. Thus,
under the provisions of Secs. 447, par. 1 (vi), 458, par. 1 (vi) and 468, par. 1 (vi), the municipality,
city and province respectively may approve ordinances protecting the environment by specifically
penalizing only those acts which endanger the environment such as dynamite fishing and other
forms of destructive fishing which are already prohibited under P.D. Nos. 704 and 1219, and other
laws on illegal fishing. 8
The questioned ordinances may also be struck down for being not only a prohibitory legislation but
also an unauthorized exercise of delegation of powers. An objective, however worthy or desirable
it may be, such as the protection and conservation of our fisheries in this case, can be attained by
a measure that does not encompass too wide a field. The purpose can be achieved by reasonable
restrictions rather than by absolute prohibition. Local governments are not possessed with
prohibitory powers but only regulatory powers under the general welfare clause. 9 They cannot
therefore exceed the powers granted to them by the Code by altogether prohibiting fishing and
selling for five (5) years all live fishes through Ordinance No. 15-92 and coral organisms through
Ordinance No. 2-93 involving even lawful methods of fishing.
These prohibitions are tantamount to the establishment of a closed
season for fish and aquatic resources which authority is not among
those powers vested by the Local Government Code to the local
government units. For the authority to establish a closed season for
fisheries is vested upon the Secretary of Agriculture by virtue of P.D.
Nos. 704 and 1015 and in the Secretary of Environment and Natural
resources pursuant to P.D. No. 1219 in relation to coral resources. The
power of the local governments is confined and limited to ensuring
that these national fishery laws are implemented and enforced within
their territorial jurisdictions. Hence, any memorandum of agreement
which might have been executed by the Department of Agriculture or
Department of Environment and Natural Resources granting additional
powers and functions to the local governments which are not vested
upon the latter by the Local Government Code because such powers
are covered by existing statutes, is an undue delegation of power and,
consequently, null and void.
The majority also cites R.A. No. 7611, otherwise known as the Strategic
Environmental Plan (SEP) for Palawan Act, as proof of the power of the
local governments of Palawan and Puerto Princesa City to issue the
assailed ordinances. Although the objectives of R.A. No. 7611 and of
the ordinances are one and the same, i.e., the protection, conservation
and development of natural resources, the former does not grant
additional powers to the local governments pertaining to the
environment. In fact, the law adopts a comprehensive framework
which shall serve to direct and guide local governments and national
government agencies in the implementation of programs and projects
affecting Palawan. With the enactment of this Act, the local
governments are mandated to coordinate and align their
developmental plans, projects and budgets in accord with the
framework of the SEP. It can be said that this is another limitation on
91
the exercise of police power by the local governments of Palawan and
Puerto Princesa City because the governance, implementation and
policy direction of the SEP shall be exercised by the Palawan Council
for Sustainable Development (PCSD) which is under the Office of the
President.
Finally, I find unreasonable Resolution No. 2-93 of Palawan and
Ordinance No. 15-92 of Puerto Princesa City. The prohibitions set forth
are not germane to the accomplishment of their goals. Ordinance No.
15-92 is aimed to free effectively the marine resources of Puerto
Princesa from cyanide and other obnoxious substances. But the means
to achieve this objective borders on the excessive and irrational, for
the edict would absolutely ban the shipment of live fishes and lobsters
out of the city for a period of five (5) years without prohibiting cyanide
fishing itself which is the professed goal of the ordinance. The purpose
of Resolution No. 2-93, on the other hand, is to protect and preserve
all marine coral-dwelling organisms from devastation and destruction
by illegal fishing activities, e.g., dynamite fishing, sodium cyanide
fishing, and the use of other obnoxious substances. But in absolutely
prohibiting the catching, gathering, buying and shipment of live fishes
and marine coral resources by any means including those lawfully
executed or done in the pursuit of legitimate occupation, the
ordinance overstepped the reasonable limits and boundaries of
its raison d'etre. This I cannot help viewing as plain arbitrariness
masquerading as police power. For the consequent deprivation of the
main source of livelihood of the people of Palawan can only be
regarded as utter depravation of this awesome power of the State.
For all the foregoing, I vote to grant the petition.
 [G.R. No. 118127. April 12, 2005]
10) CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON.
JOSELITO L. ATIENZA, in his capacity as Vice-Mayor of the City of Manila and Presiding
Officer of the City Council of Manila, HON. ERNESTO A. NIEVA, HON. GONZALO P.
GONZALES, HON. AVELINO S. CAILIAN, HON. ROBERTO C. OCAMPO, HON. ALBERTO
DOMINGO, HON. HONORIO U. LOPEZ, HON. FRANCISCO G. VARONA, JR., HON.
ROMUALDO S. MARANAN, HON. NESTOR C. PONCE, JR., HON. HUMBERTO B. BASCO,
HON. FLAVIANO F. CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL M. ZARCAL,
HON. PEDRO S. DE JESUS, HON. BERNARDITO C. ANG, HON. MANUEL L. QUIN, HON.
JHOSEP Y. LOPEZ, HON. CHIKA G. GO, HON. VICTORIANO A. MELENDEZ, HON. ERNESTO
V.P. MACEDA, JR., HON. ROLANDO P. NIETO, HON. DANILO V. ROLEDA, HON. GERINO A.
TOLENTINO, JR., HON. MA. PAZ E. HERRERA, HON. JOEY D. HIZON, HON. FELIXBERTO D.
ESPIRITU, HON. KARLO Q. BUTIONG, HON. ROGELIO P. DELA PAZ, HON. BERNARDO D.
RAGAZA, HON. MA. CORAZON R. CABALLES, HON. CASIMIRO C. SISON, HON. BIENVINIDO
M. ABANTE, JR., HON. MA. LOURDES M. ISIP, HON. ALEXANDER S. RICAFORT, HON.
ERNESTO F. RIVERA, HON. LEONARDO L. ANGAT, and HON. JOCELYN B. DAWIS, in their
capacity as councilors of the City of Manila, petitioners, vs. HON. PERFECTO A.S.
LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE TOURIST
DEVELOPMENT CORPORATION, respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel good after and what is immoral
is what you feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if performed by
oneself, is less immoral than if performed by someone else, who would be
well-intentioned in his dishonesty.
92
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Courts commitment to the protection of morals is secondary to its
fealty to the fundamental law of the land. It is foremost a guardian of the
Constitution but not the conscience of individuals. And if it need be, the Court
will not hesitate to make the hammer fall, and heavily in the words of Justice
Laurel, and uphold the constitutional guarantees when faced with laws that,
though not lacking in zeal to promote morality, nevertheless fail to pass the test
of constitutionality.
The pivotal issue in this Petition[1] under Rule 45 (then Rule 42) of the
Revised Rules on Civil Procedure seeking the reversal of the Decision[2] in Civil
Case No. 93-66511 of the Regional Trial Court (RTC) of Manila, Branch 18 (lower
court),[3] is the validity of Ordinance No. 7783 (the Ordinance) of the City of
Manila.[4]
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation (MTDC) is a
corporation engaged in the business of operating hotels, motels, hostels and
lodging houses.[5] It built and opened Victoria Court in Malate which was
licensed as a motel although duly accredited with the Department of Tourism
as a hotel.[6] On 28 June 1993, MTDC filed a Petition for Declaratory Relief with
Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining
Order[7] (RTC Petition) with the lower court impleading as defendants, herein
petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza,
and the members of the City Council of Manila (City Council). MTDC prayed that
the Ordinance, insofar as it includes motels and inns as among its prohibited
establishments, be declared invalid and unconstitutional.[8]
Enacted by the City Council[9] on 9 March 1993 and approved by petitioner
City Mayor on 30 March 1993, the said Ordinance is entitled
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF
BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT,
SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING
PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES.[10]
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the contrary
notwithstanding, no person, partnership, corporation or entity shall, in the
Ermita-Malate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft
Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in the
West, pursuant to P.D. 499 be allowed or authorized to contract and engage in,
any business providing certain forms of amusement, entertainment, services
and facilities where women are used as tools in entertainment and which tend
to disturb the community, annoy the inhabitants, and adversely affect the social
and moral welfare of the community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the
said officials are prohibited from issuing permits, temporary or otherwise, or
from granting licenses and accepting payments for the operation of business
enumerated in the preceding section.
93
SEC. 3. Owners and/or operator of establishments engaged in, or devoted to,
the businesses enumerated in Section 1 hereof are hereby given three (3)
months from the date of approval of this ordinance within which to wind up
business operations or to transfer to any place outside of the Ermita-Malate
area or convert said businesses to other kinds of business allowable within the
area,such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-
defined activities for wholesome family entertainment that cater
to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of
motion pictures but also of cultural shows, stage and theatrical
plays, art exhibitions, concerts and the like.
11. Businesses allowable within the law and medium
intensity districts as provided for in the zoning ordinances for
Metropolitan Manila, except new warehouse or open-storage
depot, dock or yard, motor repair shop, gasoline service station,
light industry with any machinery, or funeral establishments.
SEC. 4. Any person violating any provisions of this ordinance, shall upon
conviction, be punished by imprisonment of one (1) year or fine of FIVE
THOUSAND (P5,000.00) PESOS, or both, at the discretion of the Court,
PROVIDED, that in case of juridical person, the President, the General
Manager, or person-in-charge of operation shall be liable thereof; PROVIDED
FURTHER, that in case of subsequent violation and conviction, the premises of
the erring establishment shall be closed and padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today, March 9,
1993.
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously and
improperly included in its enumeration of prohibited establishments, motels
and inns such as MTDCs Victoria Court considering that these were not
establishments for amusement or entertainment and they were not services or
facilities for entertainment, nor did they use women as tools for entertainment,
and neither did they disturb the community, annoy the inhabitants or adversely
affect the social and moral welfare of the community.[11]
MTDC further advanced that the Ordinance was invalid and
unconstitutional for the following reasons: (1) The City Council has no power to
prohibit the operation of motels as Section 458 (a) 4 (iv)[12] of the Local
Government Code of 1991 (the Code) grants to the City Council only the power
to regulate the establishment, operation and maintenance of hotels, motels,
inns, pension houses, lodging houses and other similar establishments; (2) The
Ordinance is void as it is violative of Presidential Decree (P.D.) No. 499[13] which
specifically declared portions of the Ermita-Malate area as a commercial zone
with certain restrictions; (3) The Ordinance does not constitute a proper
exercise of police power as the compulsory closure of the motel business has
no reasonable relation to the legitimate municipal interests sought to be
protected; (4) The Ordinance constitutes an ex post facto law by punishing the
operation of Victoria Court which was a legitimate business prior to its
enactment; (5) The Ordinance violates MTDCs constitutional rights in that: (a)
it is confiscatory and constitutes an invasion of plaintiffs property rights; (b) the
City Council has no power to find as a fact that a particular thing is a
nuisance per se nor does it have the power to extrajudicially destroy it; and (6)
The Ordinance constitutes a denial of equal protection under the law as no
reasonable basis exists for prohibiting the operation of motels and inns, but not
pension houses, hotels, lodging houses or other similar establishments, and for
94
prohibiting said business in the Ermita-Malate area but not outside of this
area.[14]
In their Answer[15] dated 23 July 1993, petitioners City of Manila and Lim
maintained that the City Council had the power to prohibit certain forms of
entertainment in order to protect the social and moral welfare of the
community as provided for in Section 458 (a) 4 (vii) of the Local Government
Code,[16] which reads, thus:
Section 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as provided for under
Section 22 of this Code, and shall:
....
(4) Regulate activities relative to the use of land, buildings and structures
within the city in order to promote the general welfare and for said purpose
shall:
....
(vii) Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical
performances, circuses, billiard pools, public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for
entertainment or amusement; regulate such other events or
activities for amusement or entertainment, particularly those which
tend to disturb the community or annoy the inhabitants, or require
the suspension or suppression of the same; or, prohibit certain
forms of amusement or entertainment in order to protect the social
and moral welfare of the community.
 Citing Kwong Sing v. City of Manila,[17] petitioners insisted that the power
of regulation spoken of in the above-quoted provision included the power to
control, to govern and to restrain places of exhibition and amusement.[18]
Petitioners likewise asserted that the Ordinance was enacted by the City
Council of Manila to protect the social and moral welfare of the community in
conjunction with its police power as found in Article III, Section 18(kk) of
Republic Act No. 409,[19] otherwise known as the Revised Charter of the City of
Manila (Revised Charter of Manila)[20] which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
...
Section 18. Legislative powers. The Municipal Board shall have the
following legislative powers:
...
(kk) To enact all ordinances it may deem necessary and proper for
the sanitation and safety, the furtherance of the prosperity, and the
promotion of the morality, peace, good order, comfort,
convenience, and general welfare of the city and its inhabitants, and
such others as may be necessary to carry into effect and discharge
the powers and duties conferred by this chapter; and to fix
penalties for the violation of ordinances which shall not exceed two
hundred pesos fine or six months imprisonment, or both such fine
and imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption of
validity; hence, private respondent had the burden to prove its illegality or
unconstitutionality.[21]
95
Petitioners also maintained that there was no inconsistency between P.D.
499 and the Ordinance as the latter simply disauthorized certain forms of
businesses and allowed the Ermita-Malate area to remain a commercial
zone.[22] The Ordinance, the petitioners likewise claimed, cannot be assailed
as ex post facto as it was prospective in operation.[23] The Ordinance also did
not infringe the equal protection clause and cannot be denounced as class
legislation as there existed substantial and real differences between the Ermita-
Malate area and other places in the City of Manila.[24]
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio)
issued an ex-parte temporary restraining order against the enforcement of
the Ordinance.[25] And on 16 July 1993, again in an intrepid gesture, he granted
the writ of preliminary injunction prayed for by MTDC.[26]
After trial, on 25 November 1994, Judge Laguio rendered the
assailed Decision, enjoining the petitioners from implementing the Ordinance.
The dispositive portion of said Decisionreads:[27]
WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3],
Series of 1993, of the City of Manila null and void, and making permanent the
writ of preliminary injunction that had been issued by this Court against the
defendant. No costs.
SO ORDERED.[28]
Petitioners filed with the lower court a Notice of Appeal[29] on 12
December 1994, manifesting that they are elevating the case to this Court
under then Rule 42 on pure questions of law.[30]
On 11 January 1995, petitioners filed the present Petition, alleging that the
following errors were committed by the lower court in its ruling: (1) It erred in
concluding that the subject ordinance is ultra vires, or otherwise, unfair,
unreasonable and oppressive exercise of police power; (2) It erred in holding
that the questioned Ordinance contravenes P.D. 499[31] which allows operators
of all kinds of commercial establishments, except those specified therein; and
(3) It erred in declaring the Ordinance void and unconstitutional.[32]
 In the Petition and in its Memorandum,[33] petitioners in essence repeat
the assertions they made before the lower court. They contend that the
assailed Ordinance was enacted in the exercise of the inherent and plenary
power of the State and the general welfare clause exercised by local
government units provided for in Art. 3, Sec. 18 (kk) of the Revised Charter of
Manila and conjunctively, Section 458 (a) 4 (vii) of the Code.[34] They allege that
the Ordinance is a valid exercise of police power; it does not contravene P.D.
499; and that it enjoys the presumption of validity.[35]
In its Memorandum[36] dated 27 May 1996, private respondent maintains
that the Ordinance is ultra vires and that it is void for being repugnant to the
general law. It reiterates that the questioned Ordinance is not a valid exercise
of police power; that it is violative of due process, confiscatory and amounts to
an arbitrary interference with its lawful business; that it is violative of the equal
protection clause; and that it confers on petitioner City Mayor or any officer
unregulated discretion in the execution of the Ordinance absent rules to guide
and control his actions.
This is an opportune time to express the Courts deep sentiment and
tenderness for the Ermita-Malate area being its home for several decades. A
long-time resident, the Court witnessed the areas many turn of events. It
relished its glory days and endured its days of infamy. Much as the Court harks
back to the resplendent era of the Old Manila and yearns to restore its lost
grandeur, it believes that the Ordinance is not the fitting means to that end.
The Court is of the opinion, and so holds, that the lower court did not err in
declaring the Ordinance, as it did, ultra vires and therefore null and void.
The Ordinance is so replete with constitutional infirmities that almost
every sentence thereof violates a constitutional provision. The prohibitions and
sanctions therein transgress the cardinal rights of persons enshrined by the
Constitution. The Court is called upon to shelter these rights from attempts at
rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions
has held that for an ordinance to be valid, it must not only be within the
corporate powers of the local government unit to enact and must be passed
96
according to the procedure prescribed by law, it must also conform to the
following substantive requirements: (1) must not contravene the Constitution
or any statute; (2) must not be unfair or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate trade; (5) must be
general and consistent with public policy; and (6) must not be unreasonable.[37]
Anent the first criterion, ordinances shall only be valid when they are not
contrary to the Constitution and to the laws.[38] The Ordinance must satisfy two
requirements: it must pass muster under the test of constitutionality and the
test of consistency with the prevailing laws. That ordinances should be
constitutional uphold the principle of the supremacy of the Constitution. The
requirement that the enactment must not violate existing law gives stress to
the precept that local government units are able to legislate only by virtue of
their derivative legislative power, a delegation of legislative power from the
national legislature. The delegate cannot be superior to the principal or exercise
powers higher than those of the latter.[39]
This relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in the
Constitution strengthening the policy of local autonomy. The national
legislature is still the principal of the local government units, which cannot defy
its will or modify or violate it.[40]
The Ordinance was passed by the City Council in the exercise of its police
power, an enactment of the City Council acting as agent of Congress. Local
government units, as agencies of the State, are endowed with police power in
order to effectively accomplish and carry out the declared objects of their
creation.[41] This delegated police power is found in Section 16 of the Code,
known as the general welfare clause, viz:
SECTION 16. General Welfare.Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as
powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local government units
shall ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve
public morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants.
Local government units exercise police power through their respective
legislative bodies; in this case, the sangguniang panlungsod or the city council.
The Code empowers the legislative bodies to enact ordinances, approve
resolutions and appropriate funds for the general welfare of the
province/city/municipality and its inhabitants pursuant to Section 16 of the
Code and in the proper exercise of the corporate powers of the province/city/
municipality provided under the Code.[42] The inquiry in this Petition is
concerned with the validity of the exercise of such delegated power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-reaching, is
subordinate to the constitutional limitations thereon; and is subject to the
limitation that its exercise must be reasonable and for the public good.[43] In the
case at bar, the enactment of the Ordinance was an invalid exercise of
delegated power as it is unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty,
and property, and the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy.[44]
SEC. 14. The State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and men.[45]
97
SEC. 1. No person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of laws.[46]
Sec. 9. Private property shall not be taken for public use without just
compensation.[47]
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat (N)o
person shall be deprived of life, liberty or property without due process of law.
. . .[48]
There is no controlling and precise definition of due process. It furnishes
though a standard to which governmental action should conform in order that
deprivation of life, liberty or property, in each appropriate case, be valid. This
standard is aptly described as a responsiveness to the supremacy of reason,
obedience to the dictates of justice,[49] and as such it is a limitation upon the
exercise of the police power.[50]
The purpose of the guaranty is to prevent governmental encroachment
against the life, liberty and property of individuals; to secure the individual from
the arbitrary exercise of the powers of the government, unrestrained by the
established principles of private rights and distributive justice; to protect
property from confiscation by legislative enactments, from seizure, forfeiture,
and destruction without a trial and conviction by the ordinary mode of judicial
procedure; and to secure to all persons equal and impartial justice and the
benefit of the general law.[51]
The guaranty serves as a protection against arbitrary regulation, and
private corporations and partnerships are persons within the scope of the
guaranty insofar as their property is concerned.[52]
This clause has been interpreted as imposing two separate limits on
government, usually called procedural due process and substantive due
process.
 Procedural due process, as the phrase implies, refers to the procedures
that the government must follow before it deprives a person of life, liberty, or
property. Classic procedural due process issues are concerned with what kind
of notice and what form of hearing the government must provide when it takes
a particular action.[53]
Substantive due process, as that phrase connotes, asks whether the
government has an adequate reason for taking away a persons life, liberty, or
property. In other words, substantive due process looks to whether there is a
sufficient justification for the governments action.[54] Case law in the United
States (U.S.) tells us that whether there is such a justification depends very
much on the level of scrutiny used.[55] For example, if a law is in an area where
only rational basis review is applied, substantive due process is met so long as
the law is rationally related to a legitimate government purpose. But if it is an
area where strict scrutiny is used, such as for protecting fundamental rights,
then the government will meet substantive due process only if it can prove that
the law is necessary to achieve a compelling government purpose.[56]
The police power granted to local government units must always be
exercised with utmost observance of the rights of the people to due process
and equal protection of the law. Such power cannot be exercised whimsically,
arbitrarily or despotically[57] as its exercise is subject to a qualification, limitation
or restriction demanded by the respect and regard due to the prescription of
the fundamental law, particularly those forming part of the Bill of Rights.
Individual rights, it bears emphasis, may be adversely affected only to the
extent that may fairly be required by the legitimate demands of public interest
or public welfare.[58] Due process requires the intrinsic validity of the law in
interfering with the rights of the person to his life, liberty and property.[59]
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the
enactment of the Ordinance, and to free it from the imputation of
constitutional infirmity, not only must it appear that the interests of the public
98
generally, as distinguished from those of a particular class, require an
interference with private rights, but the means adopted must be reasonably
necessary for the accomplishment of the purpose and not unduly oppressive
upon individuals.[60] It must be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights can work. A
reasonable relation must exist between the purposes of the police measure and
the means employed for its accomplishment, for even under the guise of
protecting the public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded.[61]
Lacking a concurrence of these two requisites, the police measure shall be
struck down as an arbitrary intrusion into private rights[62] a violation of the due
process clause.
The Ordinance was enacted to address and arrest the social ills
purportedly spawned by the establishments in the Ermita-Malate area which
are allegedly operated under the deceptive veneer of legitimate, licensed and
tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels
and motels. Petitioners insist that even the Court in the case of Ermita-Malate
Hotel and Motel Operators Association, Inc. v. City Mayor of Manila[63] had
already taken judicial notice of the alarming increase in the rate of prostitution,
adultery and fornication in Manila traceable in great part to existence of motels,
which provide a necessary atmosphere for clandestine entry, presence and exit
and thus become the ideal haven for prostitutes and thrill-seekers.[64]
The object of the Ordinance was, accordingly, the promotion and
protection of the social and moral values of the community. Granting for the
sake of argument that the objectives of the Ordinance are within the scope of
the City Councils police powers, the means employed for the accomplishment
thereof were unreasonable and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to
make all reasonable regulations looking to the promotion of the moral and
social values of the community. However, the worthy aim of fostering public
morals and the eradication of the communitys social ills can be achieved
through means less restrictive of private rights; it can be attained by reasonable
restrictions rather than by an absolute prohibition. The closing down and
transfer of businesses or their conversion into businesses allowed under
the Ordinance have no reasonable relation to the accomplishment of its
purposes. Otherwise stated, the prohibition of the enumerated establishments
will not per se protect and promote the social and moral welfare of the
community; it will not in itself eradicate the alluded social ills of prostitution,
adultery, fornication nor will it arrest the spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses
of ill-repute and establishments of the like which the City Council may lawfully
prohibit,[65] it is baseless and insupportable to bring within that classification
sauna parlors, massage parlors, karaoke bars, night clubs, day clubs, super
clubs, discotheques, cabarets, dance halls, motels and inns. This is not
warranted under the accepted definitions of these terms. The enumerated
establishments are lawful pursuits which are not per se offensive to the moral
welfare of the community.
That these are used as arenas to consummate illicit sexual affairs and as
venues to further the illegal prostitution is of no moment. We lay stress on the
acrid truth that sexual immorality, being a human frailty, may take place in the
most innocent of places that it may even take place in the substitute
establishments enumerated under Section 3 of the Ordinance. If the flawed
logic of the Ordinance were to be followed, in the remote instance that an
immoral sexual act transpires in a church cloister or a court chamber, we would
behold the spectacle of the City of Manila ordering the closure of the church or
court concerned. Every house, building, park, curb, street or even vehicles for
that matter will not be exempt from the prohibition. Simply because there are
no pure places where there are impure men. Indeed, even the Scripture and
the Tradition of Christians churches continually recall the presence
and universality of sin in mans history.[66]
The problem, it needs to be pointed out, is not the establishment, which
by its nature cannot be said to be injurious to the health or comfort of the
community and which in itself is amoral, but the deplorable human activity that
may occur within its premises. While a motel may be used as a venue for
immoral sexual activity, it cannot for that reason alone be punished. It cannot
99
be classified as a house of ill-repute or as a nuisance per se on a mere likelihood
or a naked assumption. If that were so and if that were allowed, then the
Ermita-Malate area would not only be purged of its supposed social ills, it would
be extinguished of its soul as well as every human activity, reprehensible or not,
in its every nook and cranny would be laid bare to the estimation of the
authorities.
The Ordinance seeks to legislate morality but fails to address the core
issues of morality. Try as the Ordinance may to shape morality, it should not
foster the illusion that it can make a moral man out of it because immorality is
not a thing, a building or establishment; it is in the hearts of men. The City
Council instead should regulate human conduct that occurs inside the
establishments, but not to the detriment of liberty and privacy which are
covenants, premiums and blessings of democracy.
While petitioners earnestness at curbing clearly objectionable social ills is
commendable, they unwittingly punish even the proprietors and operators of
wholesome, innocent establishments. In the instant case, there is a clear
invasion of personal or property rights, personal in the case of those individuals
desirous of owning, operating and patronizing those motels and property in
terms of the investments made and the salaries to be paid to those therein
employed. If the City of Manila so desires to put an end to prostitution,
fornication and other social ills, it can instead impose reasonable regulations
such as daily inspections of the establishments for any violation of the
conditions of their licenses or permits; it may exercise its authority to suspend
or revoke their licenses for these violations;[67] and it may even impose
increased license fees. In other words, there are other means to reasonably
accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors,
karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques,
cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3
thereof, owners and/or operators of the enumerated establishments are given
three (3) months from the date of approval of the Ordinancewithin which to
wind up business operations or to transfer to any place outside the Ermita-
Malate area or convert said businesses to other kinds of business allowable
within the area. Further, it states in Section 4 that in cases of subsequent
violations of the provisions of the Ordinance, the premises of the erring
establishment shall be closed and padlocked permanently.
It is readily apparent that the means employed by the Ordinance for the
achievement of its purposes, the governmental interference itself, infringes on
the constitutional guarantees of a persons fundamental right to liberty and
property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm
to include the right to exist and the right to be free from arbitrary restraint or
servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of
man to enjoy the facilities with which he has been endowed by his Creator,
subject only to such restraint as are necessary for the common welfare.[68] In
accordance with this case, the rights of the citizen to be free to use his faculties
in all lawful ways; to live and work where he will; to earn his livelihood by any
lawful calling; and to pursue any avocation are all deemed embraced in the
concept of liberty.[69]
The U.S. Supreme Court in the case of Roth v. Board of Regents,[70] sought
to clarify the meaning of liberty. It said:
While the Court has not attempted to define with exactness the liberty. . .
guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not
merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and bring up children, to
worship God according to the dictates of his own conscience, and generally to
enjoy those privileges long recognizedas essential to the orderly pursuit of
happiness by free men. In a Constitution for a free people, there can be no
doubt that the meaning of liberty must be broad indeed.
100
In another case, it also confirmed that liberty protected by the due process
clause includes personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education. In explaining
the respect the Constitution demands for the autonomy of the person in
making these choices, the U.S. Supreme Court explained:
These matters, involving the most intimate and personal choices a person may
make in a lifetime, choices central to personal dignity and autonomy, are
central to the liberty protected by the Fourteenth Amendment. At the heart
of liberty is the right to define ones own concept of existence, of meaning, of
universe, and of the mystery of human life. Beliefs about these matters could
not define the attributes of personhood where they formed under compulsion
of the State.[71]
Persons desirous to own, operate and patronize the enumerated
establishments under Section 1 of the Ordinance may seek autonomy for these
purposes.
Motel patrons who are single and unmarried may invoke this right to
autonomy to consummate their bonds in intimate sexual conduct within the
motels premisesbe it stressed that their consensual sexual behavior does not
contravene any fundamental state policy as contained in the
Constitution.[72] Adults have a right to choose to forge such relationships with
others in the confines of their own private lives and still retain their dignity as
free persons. The liberty protected by the Constitution allows persons the right
to make this choice.[73] Their right to liberty under the due process clause gives
them the full right to engage in their conduct without intervention of the
government, as long as they do not run afoul of the law. Liberty should be the
rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful
government restraint; it must include privacy as well, if it is to be a repository
of freedom. The right to be let alone is the beginning of all freedomit is the most
comprehensive of rights and the right most valued by civilized men.[74]
 The concept of liberty compels respect for the individual whose claim to
privacy and interference demands respect. As the case of Morfe v.
Mutuc,[75] borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His
separateness, his isolation, are indefeasible; indeed, they are so fundamental
that they are the basis on which his civic obligations are built. He cannot
abandon the consequences of his isolation, which are, broadly speaking, that
his experience is private, and the will built out of that experience personal to
himself. If he surrenders his will to others, he surrenders himself. If his will is
set by the will of others, he ceases to be a master of himself. I cannot believe
that a man no longer a master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized
in Morfe, the invasion of which should be justified by a compelling state
interest. Morfe accorded recognition to the right to privacy independently of
its identification with liberty; in itself it is fully deserving of constitutional
protection. Governmental powers should stop short of certain intrusions into
the personal life of the citizen.[76]
There is a great temptation to have an extended discussion on these civil
liberties but the Court chooses to exercise restraint and restrict itself to the
issues presented when it should. The previous pronouncements of the Court
are not to be interpreted as a license for adults to engage in criminal conduct.
The reprehensibility of such conduct is not diminished. The Court only reaffirms
and guarantees their right to make this choice. Should they be prosecuted for
their illegal conduct, they should suffer the consequences of the choice they
have made. That, ultimately, is their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it
substantially divests the respondent of the beneficial use of its
property.[77] The Ordinance in Section 1 thereof forbids the running of the
101
enumerated businesses in the Ermita-Malate area and in Section 3 instructs its
owners/operators to wind up business operations or to transfer outside the
area or convert said businesses into allowed businesses. An ordinance which
permanently restricts the use of property that it can not be used for any
reasonable purpose goes beyond regulation and must be recognized as a taking
of the property without just compensation.[78] It is intrusive and violative of the
private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that private
property shall not be taken for public use without just compensation. The
provision is the most important protection of property rights in the
Constitution. This is a restriction on the general power of the government to
take property. The constitutional provision is about ensuring that the
government does not confiscate the property of some to give it to others. In
part too, it is about loss spreading. If the government takes away a persons
property to benefit society, then society should pay. The principal purpose of
the guarantee is to bar the Government from forcing some people alone to bear
public burdens which, in all fairness and justice, should be borne by the public
as a whole.[79]
There are two different types of taking that can be identified. A possessory
taking occurs when the government confiscates or physically occupies
property. A regulatory taking occurs when the governments regulation leaves
no reasonable economically viable use of the property.[80]
In the landmark case of Pennsylvania Coal v. Mahon,[81] it was held that a
taking also could be found if government regulation of the use of property went
too far. When regulation reaches a certain magnitude, in most if not in all cases
there must be an exercise of eminent domain and compensation to support the
act. While property may be regulated to a certain extent, if regulation goes too
far it will be recognized as a taking.[82]
No formula or rule can be devised to answer the questions of what is too
far and when regulation becomes a taking. In Mahon, Justice Holmes
recognized that it was a question of degree and therefore cannot be disposed
of by general propositions. On many other occasions as well, the U.S. Supreme
Court has said that the issue of when regulation constitutes a taking is a matter
of considering the facts in each case. The Court asks whether justice and
fairness require that the economic loss caused by public action must be
compensated by the government and thus borne by the public as a whole, or
whether the loss should remain concentrated on those few persons subject to
the public action.[83]
What is crucial in judicial consideration of regulatory takings is that
government regulation is a taking if it leaves no reasonable economically viable
use of property in a manner that interferes with reasonable expectations for
use.[84] A regulation that permanently denies all economically beneficial or
productive use of land is, from the owners point of view, equivalent to a taking
unless principles of nuisance or property law that existed when the owner
acquired the land make the use prohibitable.[85] When the owner of real
property has been called upon to sacrifice all economically beneficial uses in
the name of the common good, that is, to leave his property economically idle,
he has suffered a taking.[86]
A regulation which denies all economically beneficial or productive use of
land will require compensation under the takings clause. Where a regulation
places limitations on land that fall short of eliminating all economically
beneficial use, a taking nonetheless may have occurred, depending on a
complex of factors including the regulations economic effect on the landowner,
the extent to which the regulation interferes with reasonable investment-
backed expectations and the character of government action. These inquiries
are informed by the purpose of the takings clause which is to prevent the
government from forcing some people alone to bear public burdens which, in
all fairness and justice, should be borne by the public as a whole.[87]
A restriction on use of property may also constitute a taking if not
reasonably necessary to the effectuation of a substantial public purpose or if it
has an unduly harsh impact on the distinct investment-backed expectations of
the owner.[88]
The Ordinance gives the owners and operators of the prohibited
establishments three (3) months from its approval within which to wind up
102
business operations or to transfer to any place outside of the Ermita-Malate
area or convert said businesses to other kinds of business allowable within the
area. The directive to wind up business operations amounts to a closure of the
establishment, a permanent deprivation of property, and is practically
confiscatory. Unless the owner converts his establishment to accommodate an
allowed business, the structure which housed the previous business will be left
empty and gathering dust. Suppose he transfers it to another area, he will
likewise leave the entire establishment idle. Consideration must be given to the
substantial amount of money invested to build the edifices which the owner
reasonably expects to be returned within a period of time. It is apparent that
the Ordinance leaves no reasonable economically viable use of property in a
manner that interferes with reasonable expectations for use.
The second and third options to transfer to any place outside of the
Ermita-Malate area or to convert into allowed businessesare confiscatory as
well. The penalty of permanent closure in cases of subsequent violations found
in Section 4 of the Ordinance is also equivalent to a taking of private property.
The second option instructs the owners to abandon their property and
build another one outside the Ermita-Malate area. In every sense, it qualifies as
a taking without just compensation with an additional burden imposed on the
owner to build another establishment solely from his coffers. The proffered
solution does not put an end to the problem, it merely relocates it. Not only is
this impractical, it is unreasonable, onerous and oppressive. The conversion
into allowed enterprises is just as ridiculous. How may the respondent convert
a motel into a restaurant or a coffee shop, art gallery or music lounge without
essentially destroying its property? This is a taking of private property without
due process of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be
compensated by the government. The burden on the owner to convert or
transfer his business, otherwise it will be closed permanently after a
subsequent violation should be borne by the public as this end benefits them
as a whole.
 Petitioners cannot take refuge in classifying the measure as a zoning
ordinance. A zoning ordinance, although a valid exercise of police power, which
limits a wholesome property to a use which can not reasonably be made of it
constitutes the taking of such property without just compensation. Private
property which is not noxious nor intended for noxious purposes may not, by
zoning, be destroyed without compensation. Such principle finds no support in
the principles of justice as we know them. The police powers of local
government units which have always received broad and liberal interpretation
cannot be stretched to cover this particular taking.
Distinction should be made between destruction from necessity and
eminent domain. It needs restating that the property taken in the exercise of
police power is destroyed because it is noxious or intended for a noxious
purpose while the property taken under the power of eminent domain is
intended for a public use or purpose and is therefore wholesome.[89] If it be of
public benefit that a wholesome property remain unused or relegated to a
particular purpose, then certainly the public should bear the cost of reasonable
compensation for the condemnation of private property for public use.[90]
Further, the Ordinance fails to set up any standard to guide or limit the
petitioners actions. It in no way controls or guides the discretion vested in them.
It provides no definition of the establishments covered by it and it fails to set
forth the conditions when the establishments come within its ambit of
prohibition. The Ordinance confers upon the mayor arbitrary and unrestricted
power to close down establishments. Ordinances such as this, which make
possible abuses in its execution, depending upon no conditions or qualifications
whatsoever other than the unregulated arbitrary will of the city authorities as
the touchstone by which its validity is to be tested, are unreasonable and
invalid. The Ordinance should have established a rule by which its impartial
enforcement could be secured.[91]
Ordinances placing restrictions upon the lawful use of property must, in
order to be valid and constitutional, specify the rules and conditions to be
observed and conduct to avoid; and must not admit of the exercise, or of an
opportunity for the exercise, of unbridled discretion by the law enforcers in
carrying out its provisions.[92]
103
Thus, in Coates v. City of Cincinnati,[93] as cited in People v. Nazario,[94] the
U.S. Supreme Court struck down an ordinance that had made it illegal for three
or more persons to assemble on any sidewalk and there conduct themselves in
a manner annoying to persons passing by. The ordinance was nullified as it
imposed no standard at all because one may never know in advance what
annoys some people but does not annoy others.
Similarly, the Ordinance does not specify the standards to ascertain which
establishments tend to disturb the community, annoy the inhabitants, and
adversely affect the social and moral welfare of the community. The cited case
supports the nullification of the Ordinance for lack of comprehensible standards
to guide the law enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated
establishments without infringing the due process clause. These lawful
establishments may be regulated, but not prevented from carrying on their
business. This is a sweeping exercise of police power that is a result of a lack of
imagination on the part of the City Council and which amounts to an
interference into personal and private rights which the Court will not
countenance. In this regard, we take a resolute stand to uphold the
constitutional guarantee of the right to liberty and property.
Worthy of note is an example derived from the U.S. of a reasonable
regulation which is a far cry from the ill-considered Ordinance enacted by the
City Council.
In FW/PBS, INC. v. Dallas,[95] the city of Dallas adopted a comprehensive
ordinance regulating sexually oriented businesses, which are defined to include
adult arcades, bookstores, video stores, cabarets, motels, and theaters as well
as escort agencies, nude model studio and sexual encounter centers. Among
other things, the ordinance required that such businesses be licensed. A group
of motel owners were among the three groups of businesses that filed separate
suits challenging the ordinance. The motel owners asserted that the city
violated the due process clause by failing to produce adequate support for its
supposition that renting room for fewer than ten (10) hours resulted in
increased crime and other secondary effects. They likewise argued than the ten
(10)-hour limitation on the rental of motel rooms placed an unconstitutional
burden on the right to freedom of association. Anent the first contention, the
U.S. Supreme Court held that the reasonableness of the legislative judgment
combined with a study which the city considered, was adequate to support the
citys determination that motels permitting room rentals for fewer than ten (10
) hours should be included within the licensing scheme. As regards the second
point, the Court held that limiting motel room rentals to ten (10) hours will have
no discernible effect on personal bonds as those bonds that are formed from
the use of a motel room for fewer than ten (10) hours are not those that have
played a critical role in the culture and traditions of the nation by cultivating
and transmitting shared ideals and beliefs.
The ordinance challenged in the above-cited case merely regulated the
targeted businesses. It imposed reasonable restrictions; hence, its validity was
upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v.
City Mayor of Manila,[96] it needs pointing out, is also different from this case in
that what was involved therein was a measure which regulated the mode in
which motels may conduct business in order to put an end to practices which
could encourage vice and immorality. Necessarily, there was no valid objection
on due process or equal protection grounds as the ordinance did not prohibit
motels. The Ordinance in this case however is not a regulatory measure but is
an exercise of an assumed power to prohibit.[97]
The foregoing premises show that the Ordinance is an unwarranted and
unlawful curtailment of property and personal rights of citizens. For being
unreasonable and an undue restraint of trade, it cannot, even under the guise
of exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities
imposed. Similar subjects, in other words, should not be treated differently, so
as to give undue favor to some and unjustly discriminate against others.[98] The
104
guarantee means that no person or class of persons shall be denied the same
protection of laws which is enjoyed by other persons or other classes in like
circumstances.[99] The equal protection of the laws is a pledge of the protection
of equal laws.[100] It limits governmental discrimination. The equal protection
clause extends to artificial persons but only insofar as their property is
concerned.[101]
The Court has explained the scope of the equal protection clause in this
wise:
What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure
Administration: The ideal situation is for the laws benefits to be available to
all, that none be placed outside the sphere of its coverage. Only thus could
chance and favor be excluded and the affairs of men governed by that serene
and impartial uniformity, which is of the very essence of the idea of law. There
is recognition, however, in the opinion that what in fact exists cannot
approximate the ideal. Nor is the law susceptible to the reproach that it does
not take into account the realities of the situation. The constitutional
guarantee then is not to be given a meaning that disregards what is, what
does in fact exist. To assure that the general welfare be promoted, which is
the end of law, a regulatory measure may cut into the rights to liberty and
property. Those adversely affected may under such circumstances invoke the
equal protection clause only if they can show that the governmental act
assailed, far from being inspired by the attainment of the common weal was
prompted by the spirit of hostility, or at the very least, discrimination that
finds no support in reason. Classification is thus not ruled out, it being
sufficient to quote from the Tuason decision anew that the laws operate
equally and uniformly on all persons under similar circumstances or that all
persons must be treated in the same manner, the conditions not being
different, both in the privileges conferred and the liabilities imposed.
Favoritism and undue preference cannot be allowed. For the principle is that
equal protection and security shall be given to every person under
circumstances which, if not identical, are analogous. If law be looked upon in
terms of burden or charges, those that fall within a class should be treated in
the same fashion, whatever restrictions cast on some in the group equally
binding on the rest.[102]
Legislative bodies are allowed to classify the subjects of legislation. If the
classification is reasonable, the law may operate only on some and not all of the
people without violating the equal protection clause.[103] The classification
must, as an indispensable requisite, not be arbitrary. To be valid, it must
conform to the following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.[104]
In the Courts view, there are no substantial distinctions between motels,
inns, pension houses, hotels, lodging houses or other similar establishments. By
definition, all are commercial establishments providing lodging and usually
meals and other services for the public. No reason exists for prohibiting motels
and inns but not pension houses, hotels, lodging houses or other similar
establishments. The classification in the instant case is invalid as similar subjects
are not similarly treated, both as to rights conferred and obligations imposed.
It is arbitrary as it does not rest on substantial distinctions bearing a just and
fair relation to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and
operation of motels in the Ermita-Malate area but not outside of this area. A
noxious establishment does not become any less noxious if located outside the
area.
The standard where women are used as tools for entertainment is also
discriminatory as prostitutionone of the hinted ills the Ordinance aims to
banishis not a profession exclusive to women. Both men and women have an
equal propensity to engage in prostitution. It is not any less grave a sin when
men engage in it. And why would the assumption that there is an ongoing
immoral activity apply only when women are employed and be inapposite when
men are in harness? This discrimination based on gender violates equal
protection as it is not substantially related to important government
objectives.[105] Thus, the discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass
the test of consistency with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely
empowers local government units to regulate, and not prohibit, the
establishments enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment,
operation, and maintenance of motels, hotels and other similar establishments
is found in Section 458 (a) 4 (iv), which provides that:
Section 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as provided for under
Section 22 of this Code, and shall:
...
(4) Regulate activities relative to the use of land, buildings and structures
within the city in order to promote the general welfare and for said purpose
shall:
...

105
(iv) Regulate the establishment, operation and maintenance of cafes,
restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses,
and other similar establishments, including tourist guides and transports . . . .
While its power to regulate the establishment, operation and
maintenance of any entertainment or amusement facilities, and to prohibit
certain forms of amusement or entertainment is provided under Section 458
(a) 4 (vii) of the Code, which reads as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as provided for under
Section 22 of this Code, and shall:
...
(4) Regulate activities relative to the use of land, buildings and structures
within the city in order to promote the general welfare and for said purpose
shall:
...
(vii) Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical performances,
circuses, billiard pools, public dancing schools, public dance halls, sauna baths,
massage parlors, and other places for entertainment or amusement; regulate
such other events or activities for amusement or entertainment, particularly
those which tend to disturb the community or annoy the inhabitants, or
require the suspension or suppression of the same; or, prohibit certain forms
of amusement or entertainment in order to protect the social and moral
welfare of the community.
106
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels,
inns, pension houses, lodging houses, and other similar establishments, the
only power of the City Council to legislate relative thereto is to regulate them
to promote the general welfare. The Code still withholds from cities the power
to suppress and prohibit altogether the establishment, operation and
maintenance of such establishments. It is well to recall the rulings of the Court
in Kwong Sing v. City of Manila[106] that:
The word regulate, as used in subsection (l), section 2444 of the
Administrative Code, means and includes the power to control, to govern, and
to restrain; but regulate should not be construed as synonymous with
suppress or prohibit. Consequently, under the power to regulate laundries,
the municipal authorities could make proper police regulations as to the mode
in which the employment or business shall be exercised.[107]
And in People v. Esguerra,[108] wherein the Court nullified an ordinance of
the Municipality of Tacloban which prohibited the selling, giving and dispensing
of liquor ratiocinating that the municipality is empowered only to regulate the
same and not prohibit. The Court therein declared that:
(A)s a general rule when a municipal corporation is specifically given authority
or power to regulate or to license and regulate the liquor traffic, power to
prohibit is impliedly withheld.[109]
These doctrines still hold contrary to petitioners assertion[110] that they
were modified by the Code vesting upon City Councils prohibitory powers.
Similarly, the City Council exercises regulatory powers over public dancing
schools, public dance halls, sauna baths, massage parlors, and other places for
entertainment or amusement as found in the first clause of Section 458 (a) 4
(vii). Its powers to regulate, suppress and suspend such other events or
activities for amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants and to prohibit certain forms
of amusement or entertainment in order to protect the social and moral
welfare of the community are stated in the second and third clauses,
respectively of the same Section. The several powers of the City Council as
provided in Section 458 (a) 4 (vii) of the Code, it is pertinent to emphasize, are
separated by semi-colons (;), the use of which indicates that the clauses in
which these powers are set forth are independent of each other albeit closely
related to justify being put together in a single enumeration or
paragraph.[111] These powers, therefore, should not be confused, commingled
or consolidated as to create a conglomerated and unified power of regulation,
suppression and prohibition.[112]
The Congress unequivocably specified the establishments and forms of
amusement or entertainment subject to regulation among which are
beerhouses, hotels, motels, inns, pension houses, lodging houses, and other
similar establishments (Section 458 (a) 4 (iv)), public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for entertainment
or amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot be
included as among other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the
inhabitants or certain forms of amusement or entertainment which the City
Council may suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are expressly
granted to it and those which are necessarily implied or incidental to the
exercise thereof. By reason of its limited powers and the nature thereof, said
powers are to be construed strictissimi juris and any doubt or ambiguity arising
out of the terms used in granting said powers must be construed against the
City Council.[113] Moreover, it is a general rule in statutory construction that the
express mention of one person, thing, or consequence is tantamount to an
express exclusion of all others. Expressio unius est exclusio alterium. This maxim
is based upon the rules of logic and the natural workings of human mind. It is
particularly applicable in the construction of such statutes as create new rights
or remedies, impose penalties or punishments, or otherwise come under the
rule of strict construction.[114]
The argument that the City Council is empowered to enact
the Ordinance by virtue of the general welfare clause of the Code and of Art. 3,
Sec. 18 (kk) of the Revised Charter of Manila is likewise without merit. On the
107
first point, the ruling of the Court in People v. Esguerra,[115] is instructive. It held
that:
The powers conferred upon a municipal council in the general welfare clause,
or section 2238 of the Revised Administrative Code, refers to matters not
covered by the other provisions of the same Code, and therefore it can not be
applied to intoxicating liquors, for the power to regulate the selling, giving
away and dispensing thereof is granted specifically by section 2242 (g) to
municipal councils. To hold that, under the general power granted by section
2238, a municipal council may enact the ordinance in question,
notwithstanding the provision of section 2242 (g), would be to make the latter
superfluous and nugatory, because the power to prohibit, includes the power
to regulate, the selling, giving away and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later
expression of the legislative will must necessarily prevail and override the
earlier law, the Revised Charter of Manila. Legis posteriores priores contrarias
abrogant, or later statute repeals prior ones which are repugnant thereto. As
between two laws on the same subject matter, which are irreconcilably
inconsistent, that which is passed later prevails, since it is the latest expression
of legislative will.[116] If there is an inconsistency or repugnance between two
statutes, both relating to the same subject matter, which cannot be removed
by any fair and reasonable method of interpretation, it is the latest expression
of the legislative will which must prevail and override the earlier.[117]
Implied repeals are those which take place when a subsequently enacted
law contains provisions contrary to those of an existing law but no provisions
expressly repealing them. Such repeals have been divided into two general
classes: those which occur where an act is so inconsistent or irreconcilable with
an existing prior act that only one of the two can remain in force and those
which occur when an act covers the whole subject of an earlier act and is
intended to be a substitute therefor. The validity of such a repeal is sustained
on the ground that the latest expression of the legislative will should prevail.[118]
 In addition, Section 534(f) of the Code states that All general and special
laws, acts, city charters, decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which are inconsistent with
any of the provisions of this Code are hereby repealed or modified accordingly.
Thus, submitting to petitioners interpretation that the Revised Charter of
Manila empowers the City Council to prohibit motels, that portion of the
Charter stating such must be considered repealed by the Code as it is at
variance with the latters provisions granting the City Council mere regulatory
powers.
It is well to point out that petitioners also cannot seek cover under the
general welfare clause authorizing the abatement of nuisances without judicial
proceedings. That tenet applies to a nuisance per se, or one which affects the
immediate safety of persons and property and may be summarily abated under
the undefined law of necessity. It can not be said that motels are injurious to
the rights of property, health or comfort of the community. It is a legitimate
business. If it be a nuisance per accidens it may be so proven in a hearing
conducted for that purpose. A motel is not per se a nuisance warranting its
summary abatement without judicial intervention.[119]
Notably, the City Council was conferred powers to prevent and prohibit
certain activities and establishments in another section of the Code which is
reproduced as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as provided for under
Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and
effective city government, and in this connection, shall:
...
108
(v) Enact ordinances intended to prevent, suppress and impose appropriate
penalties for habitual drunkenness in public places, vagrancy, mendicancy,
prostitution, establishment and maintenance of houses of ill repute, gambling
and other prohibited games of chance, fraudulent devices and ways to obtain
money or property, drug addiction, maintenance of drug dens, drug pushing,
juvenile delinquency, the printing, distribution or exhibition of obscene or
pornographic materials or publications, and such other activities inimical to
the welfare and morals of the inhabitants of the city;
...
If it were the intention of Congress to confer upon the City Council the
power to prohibit the establishments enumerated in Section 1 of
the Ordinance, it would have so declared in uncertain terms by adding them to
the list of the matters it may prohibit under the above-quoted Section.
The Ordinance now vainly attempts to lump these establishments with houses
of ill-repute and expand the City Councils powers in the second and third
clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its
prohibitory powers. It is evident that these establishments may only be
regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the
establishments themselves. That these establishments are recognized
legitimate enterprises can be gleaned from another Section of the Code.
Section 131 under the Title on Local Government Taxation expressly mentioned
proprietors or operators of massage clinics, sauna, Turkish and Swedish baths,
hotels, motels and lodging houses as among the contractors defined in
paragraph (h) thereof. The same Section also defined amusement as a
pleasurable diversion and entertainment, synonymous to relaxation, avocation,
pastime or fun; and amusement places to include theaters, cinemas, concert
halls, circuses and other places of amusement where one seeks admission to
entertain oneself by seeing or viewing the show or performances. Thus, it can
be inferred that the Code considers these establishments as legitimate
enterprises and activities. It is well to recall the maxim reddendo singula
singulis which means that words in different parts of a statute must be referred
to their appropriate connection, giving to each in its place, its proper force and
effect, and, if possible, rendering none of them useless or superfluous, even if
strict grammatical construction demands otherwise. Likewise, where words
under consideration appear in different sections or are widely dispersed
throughout an act the same principle applies.[120]
Not only does the Ordinance contravene the Code, it likewise runs counter
to the provisions of P.D. 499. As correctly argued by MTDC, the statute had
already converted the residential Ermita-Malate area into a commercial area.
The decree allowed the establishment and operation of all kinds of commercial
establishments except warehouse or open storage depot, dump or yard, motor
repair shop, gasoline service station, light industry with any machinery or
funeral establishment. The rule is that for an ordinance to be valid and to have
force and effect, it must not only be within the powers of the council to enact
but the same must not be in conflict with or repugnant to the general law.[121] As
succinctly illustrated in Solicitor General v. Metropolitan Manila Authority:[122]
The requirement that the enactment must not violate existing law explains
itself. Local political subdivisions are able to legislate only by virtue of a valid
delegation of legislative power from the national legislature (except only that
the power to create their own sources of revenue and to levy taxes is
conferred by the Constitution itself). They are mere agents vested with what is
called the power of subordinate legislation. As delegates of the Congress, the
local government units cannot contravene but must obey at all times the will
of their principal. In the case before us, the enactment in question, which are
merely local in origin cannot prevail against the decree, which has the force
and effect of a statute.[123]
Petitioners contend that the Ordinance enjoys the presumption of validity.
While this may be the rule, it has already been held that although the
presumption is always in favor of the validity or reasonableness of the
ordinance, such presumption must nevertheless be set aside when the
invalidity or unreasonableness appears on the face of the ordinance itself or is
established by proper evidence. The exercise of police power by the local
government is valid unless it contravenes the fundamental law of the land, or
109
an act of the legislature, or unless it is against public policy or is unreasonable,
oppressive, partial, discriminating or in derogation of a common right.[124]
Conclusion
All considered, the Ordinance invades fundamental personal and property
rights and impairs personal privileges. It is constitutionally infirm.
The Ordinance contravenes statutes; it is discriminatory and unreasonable in its
operation; it is not sufficiently detailed and explicit that abuses may attend the
enforcement of its sanctions. And not to be forgotten, the City Council under
the Code had no power to enact the Ordinance and is therefore ultra vires, null
and void.
Concededly, the challenged Ordinance was enacted with the best of
motives and shares the concern of the public for the cleansing of the Ermita-
Malate area of its social sins. Police power legislation of such character deserves
the full endorsement of the judiciary we reiterate our support for it. But inspite
of its virtuous aims, the enactment of the Ordinance has no statutory or
constitutional authority to stand on. Local legislative bodies, in this case, the
City Council, cannot prohibit the operation of the enumerated establishments
under Section 1 thereof or order their transfer or conversion without infringing
the constitutional guarantees of due process and equal protection of laws not
even under the guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the
Regional Trial Court declaring the Ordinance void is AFFIRMED. Costs against
petitioners.
SO ORDERED.
11) G.R. No. L-50908 January 31, 1984
MARY CONCEPCION BAUTISTA and ENRIQUE D. BAUTISTA,
petitioners, vs. ALFREDO L. JUINIO, ROMEO F. EDU and FIDEL V.
RAMOS, respondents.
Mary Concepcion Bautista for and in his own behalf.
The Solicitor General for respondents.
FERNANDO, C.J.:
The validity of an energy conservation measure, Letter of Instruction No.
869, issued on May 31, 1979 — the response to the protracted oil crisis
that dates back to 1974 — is put in issue in this prohibition proceeding
filed by petitioners, spouses Mary Concepcion Bautista and Enrique D.
Bautista, for being allegedly violative of the due process and equal
protection guarantees 1 of the Constitution. The use of private motor vehicles with H and
EH plates on week-ends and holidays was banned from "[12:00] a.m. Saturday morning to 5:00 a.m.
Monday morning, or 1:00 a.m. of the holiday to 5:00 a.m. of the day after the holiday." 2 Motor vehicles
of the following classifications are exempted: (a) S (Service); (b) T (Truck); (e) DPL (Diplomatic); (d)
CC (Consular Corps); (e) TC (Tourist Cars). 3Pursuant thereto, respondent Alfredo L. Juinio, then
Minister of Public Works, Transportation and Communications and respondent Romeo P. Edu, then
Commissioner of Land Transportation Commission issued on June 11, 1979, Memorandum Circular
No. 39, which imposed "the penalties of fine, confiscation of vehicle and cancellation of registration
on owners of the above-specified vehicles" found violating such Letter of Instruction. 4 It was then
alleged by petitioners that "while the purpose for the issuance of the LOI 869 is laudable, to wit,
energy conservation, the provision banning the use of H and EH [vehicles] is unfair, discriminatory,
[amounting to an] arbitrary classification" and thus in contravention of the equal protection
clause. 5 Moreover, for them, such Letter of Instruction is a denial of due process, more specifically,
"of their right to use and enjoy their private property and of their freedom to travel and hold family
gatherings, reunions and outings on week-ends and holidays," inviting attention to the fact that others
not included in the ban enjoying "unrestricted freedom." 6 It would follow, so they contend that
Memorandum Circular No. 39 imposing penalties of fine, confiscation of the vehicle and cancellation
of license is likewise unconstitutional, for being violative of the doctrine of "undue delegation of
legislative power." 7 It is to be noted that such Memorandum Circular does not impose the penalty of
confiscation but merely that of impounding, fine, and for the third offense that of cancellation of
certificate of registration and for the rest of the year or for ninety days whichever is longer.
This Court gave due course to the petition requiring respondent to
answer. There was admission of the facts as substantially alleged
except, as previously noted, that the ban starts at 12:00 a.m. rather than
110
1:00 a.m. of a Saturday or of a holiday and as to the mention of a Willy's
Kaiser jeep being registered in the name of a certain Teresita Urbina,
about which respondents had no knowledge. There was a denial of the
allegations that the classification of vehicles into heavy H and extra
heavy (EH) on the other hand and light and bantam on the other hand
was violative of equal protection and the regulation as to the use of the
former cars on the dates specified a transgression of due process. The
answer likewise denied that there was an undue delegation of legislative
power, reference being made to the Land Transportation and Traffic
Code. 8 There was also a procedural objection raised, namely, that what
is sought amounts at most to an advisory opinion rather than an
ajudication of a case or controversy.
Petitioners filed a motion to be allowed to reply to the answer. It was
granted. The reply, considering its exhaustive character serving as its
memorandum, stressed anew what it emphasized as the arbitrary,
unreasonable, and oppressive aspects of the challenged Letter of
Instruction and Memorandum Circular No. 39. It disputed what it
characterized as an "erroneous and arbitrary presumption that heavy car
owners unnecessarily use and therefore waste gasoline whenever they
drive their cars on week-ends and holidays;" 9 it stigmatized the ban as
defeating its "avowed purpose in the case of the affluent who own not
only heavy limousines but also many small cars [as] they may be
compelled to use at least two small cars;" 10 referred to the high cost of taxis or
other public transports for those "not able to afford expensive small cars [possibly] only one heavy
and possible old model;" 11 cited the case of "many eight cylinder vehicles which because of their
weight have been registered as light but in fact consume more or as much gasoline as the banned
vehicles." 12 Their conclusion is that "the ban imposed, in result and effect is class legislation." 13
The parties were required to submit memoranda. Respondents did so but not petitioners. They relied
on their reply to the answer — as noted, a rather comprehensive pleading. For reasons to be set
forth, this Court holds that the petition cannot prosper.
1. First as to the procedural objection. In the memorandum for
respondents, one of the issues raised was whether "the power of judicial
review may be invoked considering the inadequacy of the record and the
highly abstract and academic questions raised by the petitioners." 14 It is
inaccurate to say that the record is inadequate. It does not admit of doubt that the ban applies to
petitioners who are "the registered owners of an eight cylinder 1969 Buick, and the vendees of a six
cylinder Willy's kaiser jeep, which are both classified as heavy or H." 15 To that extent, therefore, the
enforcement of the assailed Letter of Instruction will amount to a deprivation of what otherwise would
be a valid exercise of a property right. Thus they fall squarely within "the unchallenged rule" as to
who may raise a constitutional question, namely, to quote the language of Justice Laurel in the leading
case of People v. Vera, 16 "that the person who impugns the validity of a statute must have a personal
and substantial interest in the case such that he has sustained, or will sustain direct injury as a result
of its enforcement. 17 Moreover, that rule has been considerably relaxed. 18 The question then is
neither abstract nor academic as contended by respondents.
2. There is, however, this formidable obstacle that confronts petitioners.
What they seek is for this Court to hold that a Letter of Instruction, a
regulatory measure precisely enacted to cope with the serious and grave
problem of energy conservation, is void on its face. Such a task is
rendered unusually difficult by what has been referred to by Justice
Laurel in the leading case of Angara v. Electoral Commission 19 as the
"presumption of constitutionality" and by the same jurist in the case of People v. Vera 20 in slightly
different words "a presumption that such an act falls within constitutional limitations." There is need
then for a factual foundation of invalidity. In the language of Ermita-Malate Hotel & Motel Operations
Association, Inc. v. City Mayor or Manila: "It admits of no doubt therefore that there being a
presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or
ordinance is void on its face, which is not the case here. The principle has been nowhere better
expressed than in the leading case of O'Gorman & Young v. Hartford Fire Insurance Co., where the
American Supreme Court through Justice Brandeis tersely and succinctly summed up the matter
thus: 'The statute here questioned deals with a subject clearly within the scope of the police power.
We are asked to declare it void on the ground that the specific method of regulation prescribed is
unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact
may condition the constitutionality of legislation of this character, the presumption of constitutionality
must prevail in the absence of some factual foundation of record for overthrowing the statute.' " 21
3. It is true, of course, that there may be instances where a police power
measure may, because of its arbitrary, oppressive or unjust character,
be held offensive to the due process clause and, therefore, may, when
challenged in an appropriate legal proceeding, be declared void on its
face. This is not one of them. A recital of the whereas clauses of the
Letter of Instruction makes it clear. Thus: "[Whereas], developments in
the international petroleum supply situation continue to follow a trend of
limited production and spiralling prices thereby precluding the possibility
of immediate relief in supplies within the foreseeable future; [Whereas],
the uncertainty of fuel supply availability underscores a compelling need
for the adoption of positive measures designed to insure the viability of
the country's economy and sustain its developmental growth; [Whereas],
to cushion the effect of increasing oil prices and avoid fuel supply
disruptions, it is imperative to adopt a program directed towards the
111
judicious use of our energy resources complemented with intensified
conservation efforts and efficient utilization thereof; * * *." 22 That is
undeniable is that the action taken is an appropriate response to a
problem that presses urgently for solution. It may not be the only
alternative, but its reasonableness is immediately apparent. Thus, to
repeat, substantive due process, which is the epitome of
reasonableness and fair play, is not ignored, much less infringed.
4. In the interplay between such a fundamental right and police power,
especially so where the assailed governmental action deals with the use
of one's property, the latter is accorded much leeway. That is settled law.
What is more, it is good law. Due process, therefore, cannot be validly
invoked. As stressed in the cited Ermita-Malate Hotel decision: "To hold
otherwise would be to unduly restrict and narrow the scope of police
power which has been properly characterized as the most essential,
insistent and the least limitable of powers, extending as it does 'to all the
great public needs.' It would be, to paraphrase another leading decision,
to destroy the very purpose of the state if it could be deprived or allowed
itself to be deprived of its competence to promote public health, public
morals, public safety and the general welfare. Negatively put, police
power is 'that inherent and plenary power in the State which enables it
to prohibit all that is hurtful to the comfort, safety, and welfare of society.'
" 23
5. The due process question having been disposed of, there is still the
objection based on the equal protection clause to be considered. A
governmental act may not be offensive to the due process clause, but
may run counter to such a guarantee. Such is the case when there is no
rational basis for the classification followed. That is the point raised by
petitioners. For them, there is no rational justification for the ban being
imposed on vehicles classified as heavy (H) and extra-heavy (EH), for
precisely those owned by them fall within such category. Tested by the
applicable standard that must be satisfied to avoid the charge of a denial
of equal protection, the objection of petitioners is shown to be lacking in
merit. Such a classification on its face cannot be characterized as an
affront to reason. A legal norm according to J.M. Tuason & Co., Inc. vs.
Land Tenure Administration, 24 "whether embodied in a rule, principle, or
standard, constitutes a defense against anarchy at one extreme and
tyranny at the other. Thereby, people living together in a community with
its myriad and complex problems can minimize the friction and reduce
the conflicts, to assure, at the very least, a peaceful ordering of
existence. The Ideal situation is for the law's benefits to be available to
all, that none be placed outside the sphere of its coverage. Only thus
could chance and favor be excluded and the affairs of men governed by
that serene and impartial uniformity, which is of the very essence of the
Idea of law. The actual, given things as they are and likely to continue to
be, cannot approximate the Ideal. Nor is the law susceptible to the
reproach that it does not take into account the realties of the situation. *
* * To assure that the general welfare be promoted, which is the end of
law, a regulatory measure may cut into the rights to liberty and property.
Those adversely affected may under such circumstances invoke the
equal protection clause only if they can show that the governmental act
assailed, far from being inspired by the attainment of the common weal
was prompted by the spirit of hostility, or at the very least, discrimination
that finds no support in reason. It suffices then that the laws operate
equally and uniformly on all persons under similar circumstances or that
all persons must be treated in the same manner, the conditions not being
different, both in the privileges conferred and the liabilities imposed.
Favoritism and undue preference cannot be allowed. For the principle is
that equal protection and security shall be given to every person under
circumstances, which if not Identical are analogous. If law be looked
upon in terms of burden or charges, those that fall within a class should
be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest." 25
6. Nor does it militate against the validity of the Letter of Instruction just
because the ban imposed does not go as far as it could have and
therefore could be less efficacious in character. That was the solution
which for the President expressing a power validly lodged in him,
recommended itself. There was a situation that called for a corrective
measure. He decided that what was issued by him would do just that or,
at the very least, help in easing the situation. That it did not cover other
matters which could very well have been regulated does not call for a
declaration of nullity. The President, to paraphrase Lutz v. Araneta, 26 "is
112
not required by the Constitution to adhere to the policy of all or none." 27 It
is quite obvious then that no equal protection question arises.
7. It may not be amiss to refer to a 1981 American Supreme Court
decision, Minnesota v. Clover Leaf Creamery Company. 28 Respondent
along with several other business corporations adversely affected
involved in the manufacture and utilization of plastic milk containers filed
suit in a Minnesota district court seeking to enjoin enforcement of a
Minnesota statute banning the retail sale of milk in plastic nonreturnable,
nonrefillable containers, but permitting such sale in other nonreturnable,
nonrefillable containers, such as paperboard, milk cartons. After
conducting extensive evidentiary hearings, the Minnesota court enjoined
enforcement of the statute, finding that it violated among others the
equal protection clause of the Fourteenth Amendment to the Federal
Constitution. The Minnesota Supreme Court affirmed. On certiorari, the
United States Supreme Court reversed, with only Justice Stevens
dissenting. The opinion by Justice Brennan noted that "proponents of
the legislation argued that it would promote resource conservation, ease
solid waste disposal problems, and conserve energy." 29 That sufficed for
the Court to conclude "that the ban on plastic nonreturnable milk
containers bears a rational relation to the State's objectives, and must
be sustained under the Equal Protection Clause." 30 It does show that
notwithstanding the "new equal protection approach" with its emphasis
on "suspect classification" and "fundamental rights and interests
standard," a concept so ably expounded by professor Gunther, the
"rational relation test" 31 still retains its validity. Not that there could be
any objection to the classification here followed as being in any way
susceptible to such a pejorative expression as "suspect" or that the
assailed Letter of Instruction does not qualify under "the fundamental
rights and interests" standard
8. There was set forth in the petition what were referred to as "other
reasonable measures which the authorities concerned with energy
conservation can take immediately, which are in fact acceptable and
obviously called for and should have been done long ago, to wit: 1.
require and establish taxi stands equipped with efficient telephone and
communication systems; 2. strict implementation and observance of
cargo truck hours on main arteries; 3. strict observance of traffic rules;
4. effective solution of traffic problems and decongestion of traffic
through rerouting and quick repair of roads and efficient operation of
double decker buses; 5. rationing of gasoline to avoid panic buying and
give the private car owner the option and responsibility of deciding on
the use of his allocation; 6. allow neon and electrically devised
advertising signs only from five o'clock p.m. to nine o'clock p.m. 7.
prohibit immediately the importation of heavy and luxury cars and
seriously re-examine the car manufacturing program." 32 Admittedly,
such measures are conducive to energy conservation. The question
before us however is limited to whether or not Letter of Instruction 869
as implemented by Memorandum Circular No. 39 is violative of certain
constitutional rights. It goes no further than that. The determination of
the mode and manner through which the objective of minimizing the
consumption of oil products may be attained is left to the discretion of
the political branches. 33 Absent therefore the alleged infringement of
constitutional rights, more precisely the due process and equal
protection guarantees, this Court cannot adjudge Letter of Instruction
No. 869 as tainted by unconstitutionality.
9. It was likewise contended that Memorandum Circular No. 39, issued
by the then respondent Minister of Public Works, Transportation and
Communications, and then respondent Land Transportation
Commissioner, imposing the penalties "of fine, confiscation of vehicle
and cancellation of license is likewise unconstitutional," petitioners
invoking the principle of non-delegation of legislative power. 34 To that
extent that a Letter of Instruction may be viewed as an exercise of the
decree-making power of the President, then such an argument is futile.
If, however, viewed as a compliance with the duty to take care that the
laws be faithfully executed, as a consequence of which subordinate
executive officials may in turn issue implementing rules and regulations,
then the objection would properly be considered as an ultra
vires allegation. There is this relevant excerpt from Teoxon v. Member
of the Board of Administrators: 35 "1. The recognition of the power of
administrative officials to promulgate rules in the implementation of the
statute, necessarily limited to what is provided for in the legislative
enactment, may be found in the early case of United States v.
113
Barrias decided in 1908. Then came, in a 1914 decision, United States
v. Tupasi Molina, a delineation of the scope of such competence. Thus:
'Of course the regulations adopted under legislative authority by a
particular department must be in harmony with the provisions of the law,
and for the sole purpose of carrying into effect its general provisions. By
such regulations, of course, the law itself can not be extended. So long,
however, as the regulations relate solely to carrying into effect the
provisions of the law, they are valid.' In 1936, in People v. Santos, this
Court expressed its disapproval of an administrative order that would
amount to an excess of the regulatory power vested in an administrative
official. We reaffirmed such a doctrine in a 1951 decision, where we
again made clear that where an administrative order betrays
inconsistency or repugnancy to the provisions of the Act, 'the mandate
of the Act must prevail and must be followed.' Justice Barrera, speaking
for the Court in Victorias Milling Company, Inc. v. Social Security
Commission, citing Parker as well as Davis did tersely sum up the matter
thus: 'A rule is binding on tile courts so long as the procedure fixed for
its promulgation is followed and its scope is within the statutory granted
by the legislature, even if the courts are not in agreement with the policy
stated therein or its innate wisdom * * *. On the other hand,
administrative interpretation of the law is at best merely advisory, for it
is the courts that finally determine what the law means.' It cannot be
otherwise as the Constitution limits the authority of the President, in
whom all executive power resides, to take care that the laws be faithfully
executed. No lesser administrative executive office or agency then can,
contrary to the express language of the Constitution, assert for itself a
more extensive prerogative." 36 It was alleged in the Answer of Solicitor
General Estelito P. Mendoza that Letter of Instruction 869 and
Memorandum Circular No. 39 were adopted pursuant to the Land
Transportation and Traffic Code. 37 It contains a specific provision as to
penalties. 38 Thus: "For violation of any provisions of this Act or
regulations promulgated pursuant hereto, not hereinbefore specifically
punished, a fine of not less than ten nor more than fifty pesos shall be
imposed." 39 Memorandum Circular No. 39 cannot be held to be ultra
vires as long as the fine imposed is not less than ten nor more than fifty
pesos. As to suspension of registration, 40 the Code, insofar as
applicable, provides: "Whenever it shall appear from the records of the
Commission that during any twelve-month period more than three
warnings for violations of this Act have been given to the owner of a
motor vehicle, or that the said owner has been convicted by a competent
court more than once for violation of such laws, the Commissioner may,
in his discretion, suspend the certificate of registration for a period not
exceeding ninety days and, thereupon, shall require the immediate
surrender of the number plates * * *." 41 It follows that while the imposition
of a fine or the suspension of registration under the conditions therein
set forth is valid under the Land Transportation and Traffic Code, the
impounding of a vehicle finds no statutory justification. To apply that
portion of Memorandum Circular No. 39 would be ultra vires. It must
likewise be made clear that a penalty even if warranted can only be
imposed in accordance with the procedure required by law. 42
WHEREFORE, the petition is dismissed.
12) G.R. No. L-59234 September 30, 1982
TAXICAB OPERATORS OF METRO MANILA, INC., FELICISIMO CABIGAO and ACE
TRANSPORTATION CORPORATION, petitioners,
vs.
THE BOARD OF TRANSPORTATION and THE DIRECTOR OF THE BUREAU OF LAND
TRANSPORTATION, respondents.
MELENCIO-HERRERA, J.:
This Petition for "Certiorari, Prohibition and mandamus with Preliminary
Injunction and Temporary Restraining Order" filed by the Taxicab Operators of
Metro Manila, Inc., Felicisimo Cabigao and Ace Transportation, seeks to declare
the nullity of Memorandum Circular No. 77-42, dated October 10, 1977, of the
Board of Transportation, and Memorandum Circular No. 52, dated August 15,
1980, of the Bureau of Land Transportation.
114
Petitioner Taxicab Operators of Metro Manila, Inc. (TOMMI) is a domestic
corporation composed of taxicab operators, who are grantees of Certificates of
Public Convenience to operate taxicabs within the City of Manila and to any
other place in Luzon accessible to vehicular traffic. Petitioners Ace
Transportation Corporation and Felicisimo Cabigao are two of the members of
TOMMI, each being an operator and grantee of such certificate of public
convenience.
On October 10, 1977, respondent Board of Transportation (BOT) issued
Memorandum Circular No. 77-42 which reads:
SUBJECT: Phasing out and Replacement of
Old and Dilapidated Taxis
WHEREAS, it is the policy of the government to insure that
only safe and comfortable units are used as public
conveyances;
WHEREAS, the riding public, particularly in Metro-Manila, has,
time and again, complained against, and condemned, the
continued operation of old and dilapidated taxis;
WHEREAS, in order that the commuting public may be assured
of comfort, convenience, and safety, a program of phasing out
of old and dilapidated taxis should be adopted;
WHEREAS, after studies and inquiries made by the Board of
Transportation, the latter believes that in six years of
operation, a taxi operator has not only covered the cost of his
taxis, but has made reasonable profit for his investments;
NOW, THEREFORE, pursuant to this policy, the Board hereby
declares that no car beyond six years shall be operated as taxi,
 and in implementation of the same hereby promulgates the
following rules and regulations:
1. As of December 31, 1977, all taxis of Model 1971 and earlier
are ordered withdrawn from public service and thereafter
may no longer be registered and operated as taxis. In the
registration of cards for 1978, only taxis of Model 1972 and
later shall be accepted for registration and allowed for
operation;
2. As of December 31, 1978, all taxis of Model 1972 are
ordered withdrawn from public service and thereafter may no
longer be registered and operated as taxis. In the registration
of cars for 1979, only taxis of Model 1973 and later shall be
accepted for registration and allowed for operation; and every
year thereafter, there shall be a six-year lifetime of taxi, to wit:
1980 — Model 1974
Pursuant to the above BOT circular, respondent Director of the Bureau of Land
Transportation (BLT) issued Implementing Circular No. 52, dated August 15, 1980,
instructing the Regional Director, the MV Registrars and other personnel of BLT, all
within the National Capitol Region, to implement said Circular, and formulating a
schedule of phase-out of vehicles to be allowed and accepted for registration as
public conveyances. To quote said Circular:
Pursuant to BOT Memo-Circular No. 77-42, taxi units with year
models over six (6) years old are now banned from operating
as public utilities in Metro Manila. As such the units involved
should be considered as automatically dropped as public
utilities and, therefore, do not require any further dropping
order from the BOT.
Henceforth, taxi units within the National Capitol Region
having year models over 6 years old shall be refused
registration. The following schedule of phase-out is herewith
prescribed for the guidance of all concerned:

1981 — Model 1975, etc. Year Model Automatic

Phase-Out
All taxis of earlier models than those provided above are Year
hereby ordered withdrawn from public service as of the last
day of registration of each particular year and their respective 1980
plates shall be surrendered directly to the Board of
1974 1981
Transportation for subsequent turnover to the Land
Transportation Commission. 1975 1982

For an orderly implementation of this Memorandum Circular, 1976 1983

the rules herein shall immediately be effective in Metro-
Manila. Its implementation outside Metro- Manila shall be 1977
carried out only after the project has been implemented in
Metro-Manila and only after the date has been determined by etc. etc.
the Board. 1

115
 Strict compliance here is desired. 2
In accordance therewith, cabs of model 1971 were phase-out in registration year
1978; those of model 1972, in 1979; those of model 1973, in 1980; and those of
model 1974, in 1981.
On January 27, 1981, petitioners filed a Petition with the BOT, docketed as Case
No. 80-7553, seeking to nullify MC No. 77-42 or to stop its implementation; to
allow the registration and operation in 1981 and subsequent years of taxicabs
of model 1974, as well as those of earlier models which were phased-out,
provided that, at the time of registration, they are roadworthy and fit for
operation.
On February 16, 1981, petitioners filed before the BOT a "Manifestation and
Urgent Motion", praying for an early hearing of their petition. The case was
heard on February 20, 1981. Petitioners presented testimonial and
documentary evidence, offered the same, and manifested that they would
submit additional documentary proofs. Said proofs were submitted on March
27, 1981 attached to petitioners' pleading entitled, "Manifestation,
Presentation of Additional Evidence and Submission of the Case for
Resolution." 3
On November 28, 1981, petitioners filed before the same Board a "Manifestation
and Urgent Motion to Resolve or Decide Main Petition" praying that the case be
resolved or decided not later than December 10, 1981 to enable them, in case of
denial, to avail of whatever remedy they may have under the law for the protection
of their interests before their 1975 model cabs are phased-out on January 1, 1982.
Petitioners, through its President, allegedly made personal follow-ups of the
case, but was later informed that the records of the case could not be located.
On December 29, 1981, the present Petition was instituted wherein the
following queries were posed for consideration by this Court:
116
A. Did BOT and BLT promulgate the questioned memorandum
circulars in accord with the manner required by Presidential
Decree No. 101, thereby safeguarding the petitioners'
constitutional right to procedural due process?
B. Granting, arguendo, that respondents did comply with the
procedural requirements imposed by Presidential Decree No.
101, would the implementation and enforcement of the
assailed memorandum circulars violate the petitioners'
constitutional rights to.
(1) Equal protection of the law;
(2) Substantive due process; and
(3) Protection against arbitrary and unreasonable
classification and standard?
On Procedural and Substantive Due Process:
Presidential Decree No. 101 grants to the Board of Transportation the power
4. To fix just and reasonable standards, classification,
regulations, practices, measurements, or service to be
furnished, imposed, observed, and followed by operators of
public utility motor vehicles.
Section 2 of said Decree provides procedural guidelines for said agency to
follow in the exercise of its powers:
Sec. 2. Exercise of powers. — In the exercise of the powers
granted in the preceding section, the Board shag proceed
promptly along the method of legislative inquiry.
 Apart from its own investigation and studies, the Board, in its
discretion, may require the cooperation and assistance of the
Bureau of Transportation, the Philippine Constabulary,
particularly the Highway Patrol Group, the support agencies
within the Department of Public Works, Transportation and
Communications, or any other government office or agency
that may be able to furnish useful information or data in the
formulation of the Board of any policy, plan or program in the
implementation of this Decree.
The Board may also can conferences, require the submission
of position papers or other documents, information, or data
by operators or other persons that may be affected by the
implementation of this Decree, or employ any other suitable
means of inquiry.
In support of their submission that they were denied procedural due process,
petitioners contend that they were not caged upon to submit their position
papers, nor were they ever summoned to attend any conference prior to the
issuance of the questioned BOT Circular.
It is clear from the provision aforequoted, however, that the leeway accorded
the Board gives it a wide range of choice in gathering necessary information or
data in the formulation of any policy, plan or program. It is not mandatory that
it should first call a conference or require the submission of position papers or
other documents from operators or persons who may be affected, this being
only one of the options open to the Board, which is given wide discretionary
authority. Petitioners cannot justifiably claim, therefore, that they were
deprived of procedural due process. Neither can they state with certainty that
public respondents had not availed of other sources of inquiry prior to issuing
the challenged Circulars. operators of public conveyances are not the only
primary sources of the data and information that may be desired by the BOT.
117
Dispensing with a public hearing prior to the issuance of the Circulars is neither
violative of procedural due process. As held in Central Bank vs. Hon. Cloribel
and Banco Filipino, 44 SCRA 307 (1972):
Pevious notice and hearing as elements of due process, are
constitutionally required for the protection of life or vested
property rights, as well as of liberty, when its limitation or loss
takes place in consequence of a judicial or quasi-judicial
proceeding, generally dependent upon a past act or event
which has to be established or ascertained. It is not essential
to the validity of general rules or regulations promulgated to
govern future conduct of a class or persons or enterprises,
unless the law provides otherwise. (Emphasis supplied)
Petitioners further take the position that fixing the ceiling at six (6) years is
arbitrary and oppressive because the roadworthiness of taxicabs depends upon
their kind of maintenance and the use to which they are subjected, and,
therefore, their actual physical condition should be taken into consideration at
the time of registration. As public contend, however, it is impractical to subject
every taxicab to constant and recurring evaluation, not to speak of the fact that
it can open the door to the adoption of multiple standards, possible collusion,
and even graft and corruption. A reasonable standard must be adopted to apply
to an vehicles affected uniformly, fairly, and justly. The span of six years supplies
that reasonable standard. The product of experience shows that by that time
taxis have fully depreciated, their cost recovered, and a fair return on
investment obtained. They are also generally dilapidated and no longer fit for
safe and comfortable service to the public specially considering that they are in
continuous operation practically 24 hours everyday in three shifts of eight hours
per shift. With that standard of reasonableness and absence of arbitrariness,
the requirement of due process has been met.
On Equal Protection of the Law:
Petitioners alleged that the Circular in question violates their right to equal In so far as the non-application of the assailed Circulars to other transportation
protection of the law because the same is being enforced in Metro Manila only services is concerned, it need only be recalled that the equal protection clause does
and is directed solely towards the taxi industry. At the outset it should be not imply that the same treatment be accorded all and sundry. It applies to things
pointed out that implementation outside Metro Manila is also envisioned in or persons Identically or similarly situated. It permits of classification of the object
Memorandum Circular No. 77-42. To repeat the pertinent portion: or subject of the law provided classification is reasonable or based on substantial
distinction, which make for real differences, and that it must apply equally to each
member of the class. 8 What is required under the equal protection clause is the
For an orderly implementation of this Memorandum Circular,
uniform operation by legal means so that all persons under Identical or similar
the rules herein shall immediately be effective in Metro
circumstance would be accorded the same treatment both in privilege conferred
Manila. Its implementation outside Metro Manila shall be
and the liabilities imposed. 9 The challenged Circulars satisfy the foregoing criteria.
carried out only after the project has been implemented in
Metro Manila and only after the date has been determined by
Evident then is the conclusion that the questioned Circulars do not suffer from
the Board. 4
any constitutional infirmity. To declare a law unconstitutional, the infringement
of constitutional right must be clear, categorical and undeniable. 10
In fact, it is the understanding of the Court that implementation of the Circulars in
Cebu City is already being effected, with the BOT in the process of conducting
studies regarding the operation of taxicabs in other cities. WHEREFORE, the Writs prayed for are denied and this Petition is hereby dismissed.
No costs.
The Board's reason for enforcing the Circular initially in Metro Manila is that
SO ORDERED.
taxicabs in this city, compared to those of other places, are subjected to heavier
traffic pressure and more constant use. This is of common knowledge.
Considering that traffic conditions are not the same in every city, a substantial
distinction exists so that infringement of the equal protection clause can hardly
be successfully claimed.

As enunciated in the preambular clauses of the challenged BOT Circular, the

overriding consideration is the safety and comfort of the riding public from the
dangers posed by old and dilapidated taxis. The State, in the exercise, of its 13) G.R. No. 158793 June 8, 2006
police power, can prescribe regulations to promote the health, morals, peace,
good order, safety and general welfare of the people. It can prohibit all things JAMES MIRASOL, RICHARD SANTIAGO, and LUZON MOTORCYCLISTS
hurtful to comfort, safety and welfare of society. 5 It may also regulate property FEDERATION, INC., Petitioners,
rights. 6 In the language of Chief Justice Enrique M. Fernando "the necessities vs.
imposed by public welfare may justify the exercise of governmental authority to DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS and TOLL REGULATORY
regulate even if thereby certain groups may plausibly assert that their interests are BOARD, Respondents.
disregarded". 7

118
 DECISION
CARPIO, J.:
This petition for review on certiorari1 seeks to reverse the Decision dated 10
March 2003 of the Regional Trial Court, Branch 147, Makati City (RTC) in Civil
Case No. 01-034, as well as the RTC’s Order dated 16 June 2003 which denied
petitioners’ Motion for Reconsideration. Petitioners assert that Department of
Public Works and Highways’ (DPWH) Department Order No. 74 (DO 74),
Department Order No. 215 (DO 215), and the Revised Rules and Regulations on
Limited Access Facilities of the Toll Regulatory Board (TRB) violate Republic Act
No. 2000 (RA 2000) or the Limited Access Highway Act. Petitioners also seek to
declare Department Order No. 123 (DO 123) and Administrative Order No. 1
(AO 1)2 unconstitutional.
Antecedent Facts
The facts are not in dispute. As summarized by the Solicitor General, the facts
are as follows:
1. On January 10, 2001, petitioners filed before the trial court a Petition
for Declaratory Judgment with Application for Temporary Restraining
Order and Injunction docketed as Civil Case No. 01-034. The petition
sought the declaration of nullity of the following administrative
issuances for being inconsistent with the provisions of Republic Act
2000, entitled "Limited Access Highway Act" enacted in 1957:
a. DPWH Administrative Order No. 1, Series of 1968;
b. DPWH Department Order No. 74, Series of 1993;
c. Art. II, Sec. 3(a) of the Revised Rules on Limited Access
Facilities promulgated in 199[8] by the DPWH thru the Toll
Regulatory Board (TRB).
119
2. Previously, pursuant to its mandate under R.A. 2000, DPWH issued
on June 25, 1998 Department Order (DO) No. 215 declaring the
Manila-Cavite (Coastal Road) Toll Expressway as limited access
facilities.
3. Accordingly, petitioners filed an Amended Petition on February 8,
2001 wherein petitioners sought the declaration of nullity of the
aforesaid administrative issuances. Moreover, petitioners prayed for
the issuance of a temporary restraining order and/or preliminary
injunction to prevent the enforcement of the total ban on motorcycles
along the entire breadth of North and South Luzon Expressways and
the Manila-Cavite (Coastal Road) Toll Expressway under DO 215.
4. On June 28, 2001, the trial court, thru then Presiding Judge Teofilo
Guadiz, after due hearing, issued an order granting petitioners’
application for preliminary injunction. On July 16, 2001, a writ of
preliminary injunction was issued by the trial court, conditioned upon
petitioners’ filing of cash bond in the amount of P100,000.00, which
petitioners subsequently complied with.
5. On July 18, 2001, the DPWH acting thru the TRB, issued Department
Order No. 123 allowing motorcycles with engine displacement of 400
cubic centimeters inside limited access facilities (toll ways).
6. Upon the assumption of Honorable Presiding Judge Ma. Cristina
Cornejo, both the petitioners and respondents were required to file
their respective Memoranda. Petitioners likewise filed [their]
Supplemental Memorandum. Thereafter, the case was deemed
submitted for decision.
7. Consequently, on March 10, 2003, the trial court issued the assailed
decision dismissing the petition but declaring invalid DO 123.
Petitioners moved for a reconsideration of the dismissal of their
 petition; but it was denied by the trial court in its Order dated June 16,
2003.3
Hence, this petition.
The RTC’s Ruling
The dispositive portion of the RTC’s Decision dated 10 March 2003 reads:
WHEREFORE, [t]he Petition is denied/dismissed insofar as petitioners seek to
declare null and void ab initio DPWH Department Order No. 74, Series of 1993,
Administrative Order No. 1, and Art. II, Sec. 3(a) of the Revised Rules on Limited
Access Facilities promulgated by the DPWH thru the TRB, the presumed validity
thereof not having been overcome; but the petition is granted insofar as DPWH
Department Order No. 123 is concerned, declaring the same to be invalid for
being violative of the equal protection clause of the Constitution.
SO ORDERED.4
The Issues
Petitioners seek a reversal and raise the following issues for resolution:
1. WHETHER THE RTC’S DECISION IS ALREADY BARRED BY RES
JUDICATA;
2. WHETHER DO 74, DO 215 AND THE TRB REGULATIONS
CONTRAVENE RA 2000; AND
3. WHETHER AO 1 AND DO 123 ARE UNCONSTITUTIONAL.5
The Ruling of the Court
The petition is partly meritorious.
120
Whether the RTC’s Decision Dismissing Petitioners’ Case is Barred by Res
Judicata
Petitioners rely on the RTC’s Order dated 28 June 2001, which granted their
prayer for a writ of preliminary injunction. Since respondents did not appeal
from that Order, petitioners argue that the Order became "a final judgment"
on the issues. Petitioners conclude that the RTC erred when it subsequently
dismissed their petition in its Decision dated 10 March 2003.
Petitioners are mistaken. As the RTC correctly stated, the Order dated 28 June
2001 was not an adjudication on the merits of the case that would
trigger res judicata. A preliminary injunction does not serve as a final
determination of the issues. It is a provisional remedy, which merely serves to
preserve the status quo until the court could hear the merits of the case.6 Thus,
Section 9 of Rule 58 of the 1997 Rules of Civil Procedure requires the issuance
of a final injunction to confirm the preliminary injunction should the court
during trial determine that the acts complained of deserve to be permanently
enjoined. A preliminary injunction is a mere adjunct, an ancillary remedy which
exists only as an incident of the main proceeding.7
Validity of DO 74, DO 215 and the TRB Regulations
Petitioners claim that DO 74,8 DO 215,9 and the TRB’s Rules and Regulations
issued under them violate the provisions of RA 2000. They contend that the two
issuances unduly expanded the power of the DPWH in Section 4 of RA 2000 to
regulate toll ways. Petitioners assert that the DPWH’s regulatory authority is
limited to acts like redesigning curbings or central dividing sections. They claim
that the DPWH is only allowed to re-design the physical structure of toll ways,
and not to determine "who or what can be qualified as toll way users."10
Section 4 of RA 200011 reads:
SEC. 4. Design of limited access facility. — The Department of Public Works and
Communications is authorized to so design any limited access facility and to so
regulate, restrict, or prohibit access as to best serve the traffic for which such
facility is intended; and its determination of such design shall be final. In this
connection, it is authorized to divide and separate any limited access facility
into separate roadways by the construction of raised curbings, central dividing
sections, or other physical separations, or by designating such separate
roadways by signs, markers, stripes, and the proper lane for such traffic by
appropriate signs, markers, stripes and other devices. No person, shall have any
right of ingress or egress to, from or across limited access facilities to or from
abutting lands, except at such designated points at which access may be
permitted, upon such terms and conditions as may be specified from time to
time. (Emphasis supplied)
On 19 February 1968, Secretary Antonio V. Raquiza of the Department of Public
Works and Communicationsissued AO 1, which, among others, prohibited
motorcycles on limited access highways. The pertinent provisions of AO 1 read:
SUBJECT: Revised Rules and Regulations Governing Limited Access Highways
By virtue of the authority granted the Secretary [of] Public Works and
Communications under Section 3 of R.A. 2000, otherwise known as the Limited
Access Highway Act, the following rules and regulations governing limited
access highways are hereby promulgated for the guidance of all concerned:
xxxx
Section 3 – On limited access highways, it is unlawful for any person or group of
persons to:
xxxx
(h) Drive any bicycle, tricycle, pedicab, motorcycle or any vehicle (not
motorized);
x x x x12 (Emphasis supplied)
121
On 5 April 1993, Acting Secretary Edmundo V. Mir of the Department of Public
Works and Highways issued DO 74:
SUBJECT: Declaration of the North Luzon Expressway from Balintawak to
Tabang and the South Luzon Expressway from Nichols to Alabang as Limited
Access Facilities
Pursuant to Section 2 of Republic Act No. 2000, a limited access facility is
defined as "a highway or street especially designed for through traffic, and over,
from, or to which owners or occupants of abutting land or other persons have
no right or easement or only a limited right or easement of access, light, air or
view by reason of the fact that their proper[t]y abuts upon such limited access
facility or for any other reason. Such highways or streets may be parkways, from
which trucks, buses, and other commerical [sic] vehicles shall be excluded; or
they may be free ways open to use by all customary forms of street and highway
traffic."
Section 3 of the same Act authorizes the Department of Public Works and
Communications (now Department of Public Works and Highways) "to plan,
designate, establish, regulate, vacate, alter, improve, maintain, and provide
limited access facilities for public use wherever it is of the opinion that traffic
conditions, present or future, will justify such special facilities."
Therefore, by virtue of the authority granted above, the Department of Public
Works and Highways hereby designates and declares the Balintawak to Tabang
Sections of the North Luzon Expressway, and the Nichols to Alabang Sections of
the South Luzon Expressways, to be LIMITED ACCESS HIGHWAYS/FACILITIES
subject to such rules and regulations that may be imposed by the DPWH thru
the Toll Regulatory Board (TRB).
In view thereof, the National Capital Region (NCR) of this Department is hereby
ordered, after consultation with the TRB and in coordination with the Philippine
National Police (PNP), to close all illegal openings along the said Limited Access
Highways/Facilities. In this connection, the NCR is instructed to organize its own
enforcement and security group for the purpose of assuring the continued
closure of the right-of-way fences and the implementation of the rules and
regulations that may be imposed by the DPWH thru the TRB.
This Order shall take effect immediately.13
On 25 June 1998, then DPWH Secretary Gregorio R. Vigilar issued DO 215:
SUBJECT: Declaration of the R-1 Expressway, from Seaside drive to Zapote, C-5
Link Expressway, from Zapote to Noveleta, of the Manila Cavite Toll Expressway
as Limited Access Facility.
Pursuant to Section 2 of Republic Act No. 2000, a limited access facility is
defined as "a highway or street especially designed for through traffic, and over,
from, or to which owners or occupants of abutting land or other persons have
no right or easement or only a limited right or easement of access, light, air or
view by reason of the fact that their property abuts upon such limited access
facility or for any other reason. Such highways or streets may be parkways, from
which trucks, buses, and other commercial vehicles shall be excluded; or they
may be free ways open to use by all customary forms of street and highway
traffic."
Section 3 of the same Act authorizes the Department of Public Works and
Communications (now Department of Public Works and Highways) "to plan,
designate, establish, regulate, vacate, alter, improve, maintain, and provide
limited access facilities for public use wherever it is of the opinion that traffic
conditions, present or future, will justify such special facilities."
Therefore, by virtue of the authority granted above, the Department of Public
Works and Highways hereby designates and declares the R-1 Expressway, C-5
Link Expressway and the R-1 Extension Expressway Sections of the Manila
Cavite Toll Expressway to be LIMITED ACCESS HIGHWAYS/FACILITIES subject to
such rules and regulations that may be imposed by the DPWH thru the Toll
Regulatory Board (TRB).
122
In view thereof, the National Capital Region (NCR) of this Department is hereby
ordered, after consultation with the TRB and in coordination with the Philippine
National Police (PNP), to close all illegal openings along the said Limited Access
Highways/Facilities. In this connection, the NCR is instructed to organize its own
enforcement and security group for the purpose of assuring the continued
closure of the right-of-way fences and the implementation of the rules and
regulations that may be imposed by the DPWH thru the TRB.
This Order shall take effect immediately.14
The RTC held that Section 4 of RA 2000 expressly authorized the DPWH to
design limited access facilities and to regulate, restrict, or prohibit access as to
serve the traffic for which such facilities are intended. According to the RTC,
such authority to regulate, restrict, or prohibit logically includes the
determination of who and what can and cannot be permitted entry or access
into the limited access facilities. Thus, the RTC concluded that AO 1, DO 74, and
the Revised Rules and Regulations on Limited Access Facilities, which ban
motorcycles’ entry or access to the limited access facilities, are not inconsistent
with RA 2000.
RA 2000, otherwise known as the Limited Access Highway Act, was approved
on 22 June 1957. Section 4 of RA 2000 provides that "[t]he Department of Public
Works and Communications is authorized to so design any limited access facility
and to so regulate, restrict, or prohibit access as to best serve the traffic for
which such facility is intended." The RTC construed this authorization to
regulate, restrict, or prohibit access to limited access facilities to apply to
the Department of Public Works and Highways (DPWH).
The RTC’s ruling is based on a wrong premise. The RTC assumed that the DPWH
derived its authority from its predecessor, the Department of Public Works and
Communications, which is expressly authorized to regulate, restrict, or prohibit
access to limited access facilities under Section 4 of RA 2000. However, such
assumption fails to consider the evolution of the Department of Public Works
and Communications.
Under Act No. 2711, otherwise known as the Revised Administrative Code,
approved on 10 March 1917, there were only seven executive departments,
namely: the Department of the Interior, the Department of Finance, the
Department of Justice, the Department of Agriculture and Commerce,
the Department of Public Works and Communications, the Department of Public
Instruction, and the Department of Labor.15 On 20 June 1964, Republic Act No.
413616 created the Land Transportation Commission under the Department of
Public Works and Communications. Later, the Department of Public Works and
Communications was restructured into the Department of Public Works,
Transportation and Communications.
On 16 May 1974, Presidential Decree No. 458 (PD 458) separated the Bureau
of Public Highways from the Department of Public Works, Transportation and
Communications and created it as a department to be known as Department of
Public Highways. Under Section 3 of PD 458, the Department of Public Highways
is "responsible for developing and implementing programs on the construction
and maintenance of roads, bridges and airport runways."
With the amendment of the 1973 Philippine Constitution in 1976, resulting in
the shift in the form of government, national agencies were renamed from
Departments to Ministries. Thus, the Department of Public Works,
Transportation and Communications became the Ministry of Public Works,
Transportation and Communications.
On 23 July 1979, then President Ferdinand E. Marcos issued Executive Order
No. 546 (EO 546), creating a Ministry of Public Works and a Ministry of
Transportation and Communications.17 Under Section 1 of EO 546, the Ministry
of Public Works assumed the public works functions of the Ministry of Public
Works, Transportation and Communications. The functions of the Ministry of
Public Works were the "construction, maintenance and repair of port works,
harbor facilities, lighthouses, navigational aids, shore protection works, airport
buildings and associated facilities, public buildings and school buildings,
monuments and other related structures, as well as undertaking harbor and
123
river dredging works, reclamation of foreshore and swampland areas, water
supply, and flood control and drainage works."18
On the other hand, the Ministry of Transportation and Communications became
the "primary policy, planning, programming, coordinating, implementing,
regulating and administrative entity of the executive branch of the government
in the promotion, development, and regulation of a dependable and
coordinated network of transportation and communication systems."19 The
functions of the Ministry of Transportation and Communications were:
a. Coordinate and supervise all activities of the Ministry relative to
transportation and communications;
b. Formulate and recommend national policies and guidelines for the
preparation and implementation of an integrated and comprehensive
transportation and communications system at the national, regional and
local levels;
c. Establish and administer comprehensive and integrated programs
for transportation and communication, and for this purpose, may call
on any agency, corporation, or organization, whether government or
private, whose development programs include transportation and
communications as an integral part to participate and assist in the
preparation and implementation of such programs;
d. Regulate, whenever necessary, activities relative to transportation
and communications and prescribe and collect fees in the exercise of
such power;
e. Assess, review and provide direction to transportation and
communications research and development programs of the
government in coordination with other institutions concerned; and
 f. Perform such other functions as may be necessary to carry into effect
the provisions of this Executive Order.20 (Emphasis supplied)
On 27 July 1981, then President Marcos issued Executive Order No. 710 (EO
710), which merged the Ministry of Public Works and the Ministry of Public
Highways for "greater simplicity and economy in operations."21 The
restructured agency became known as the Ministry of Public Works and
Highways. Under Section 1 of EO 710 the functions of the Ministry of Public
Works and the Ministry of Public Highways22 were transferred to the Ministry
of Public Works and Highways.
Upon the ratification of the 1987 Constitution in February 1987, the former
Ministry of Public Works and Highways became the Department of Public Works
and Highways (DPWH) and the former Ministry of Transportation and
Communications became the Department of Transportation and
Communications (DOTC).
DPWH issued DO 74 and DO 215 declaring certain expressways as limited access
facilities on 5 April 1993 and 25 June 1998, respectively. Later, the TRB, under
the DPWH, issued the Revised Rules and Regulations on Limited Access
Facilities. However, on 23 July 1979, long before these department orders and
regulations were issued, the Ministry of Public Works, Transportation and
Communications was divided into two agencies – the Ministry of Public
Works and the Ministry of Transportation and Communications – by virtue of EO
546. The question is, which of these two agencies is now authorized to regulate,
restrict, or prohibit access to limited access facilities?23
Under Section 1 of EO 546, the Ministry of Public Works (now DPWH) assumed
the public works functions of the Ministry of Public Works, Transportation and
Communications. On the other hand, among the functions of the Ministry of
Transportation and Communications (now Department of Transportation and
Communications [DOTC]) were to (1) formulate and recommend national
policies and guidelines for the preparation and implementation of an integrated
and comprehensive transportation and communications systems at the
124
national, regional, and local levels; and (2) regulate, whenever necessary,
activities relative to transportation and communications and prescribe and
collect fees in the exercise of such power. Clearly, under EO 546, it is the DOTC,
not the DPWH, which has authority to regulate, restrict, or prohibit access to
limited access facilities.
Even under Executive Order No. 125 (EO 125)24 and Executive Order No. 125-A
(EO 125-A),25 which further reorganized the DOTC, the authority to administer
and enforce all laws, rules and regulations relative to transportation is clearly
with the DOTC.26
Thus, DO 74 and DO 215 are void because the DPWH has no authority to declare
certain expressways as limited access facilities. Under the law, it is the DOTC
which is authorized to administer and enforce all laws, rules and regulations in
the field of transportation and to regulate related activities.
Since the DPWH has no authority to regulate activities relative to
transportation, the TRB27 cannot derive its power from the DPWH to issue
regulations governing limited access facilities. The DPWH cannot delegate a
power or function which it does not possess in the first place. Since DO 74 and
DO 215 are void, it follows that the rules implementing them are likewise void.
Whether AO 1 and DO 123 are Unconstitutional
DPWH Secretary Simeon A. Datumanong issued DO 123 on 18 July 2001. DO
123 reads in part:
SUBJECT: Revised Rules and Regulations Governing Limited Access Highways
By virtue of the authority granted the Secretary of Public Works and Highways
under Section 3 of R.A. 2000, otherwise known as the Limited Access Highway
Act, the following revised rules and regulations governing limited access
highways are hereby promulgated for the guidance of all concerned:
1. Administrative Order No. 1 dated February 19, 1968, issued by the Secretary
of the then Department of Public Works and Communications, is hereby
amended by deleting the word "motorcycles" mentioned in Section 3(h)
thereof. Therefore, motorcycles are hereby allowed to operate inside the toll
roads and limited access highways, subject to the following:
a. Motorcycles shall have an engine displacement of at least 400 cubic
centimeters (cc) provided that:
x x x x28 (Emphasis supplied)
The RTC’s Decision dated 10 March 2003 declared DO 123 unconstitutional on
the ground that it violates the equal protection clause by allowing only
motorcycles with at least 400 cubic centimeters engine displacement to use the
toll ways. The RTC reasoned that the creation of a distinction within the class of
motorcycles was not based on real differences.
We need not pass upon the constitutionality of the classification of motorcycles
under DO 123. As previously discussed, the DPWH has no authority to regulate
limited access highways since EO 546 has devolved this function to the DOTC.
Thus, DO 123 is void for want of authority of the DPWH to promulgate it.
On the other hand, the assailed portion of AO 1 states:
Section 3. On limited access highways, it is unlawful for any person or group of
persons to:
xxxx
(h) Drive any bicycle, tricycle, pedicab, motorcycle or any vehicle (not
motorized);
xxxx
125
Petitioners assail the DPWH’s failure to provide "scientific" and "objective" data
on the danger of having motorcycles plying our highways. They attack this
exercise of police power as baseless and unwarranted. Petitioners belabor the
fact that there are studies that provide proof that motorcycles are safe modes
of transport. They also claim that AO 1 introduces an unreasonable
classification by singling-out motorcycles from other motorized modes of
transport. Finally, petitioners argue that AO 1 violates their right to travel.
Petitioners’ arguments do not convince us.
We emphasize that the Secretary of the Department of Public Works and
Communications issued AO 1 on 19 February 1968.
Section 3 of RA 200029 authorized the issuance of the guidelines. In
contrast, DPWH issued DO 74, DO 215 and DO 123 after EO 546 devolved to
the DOTC the authority to regulate limited access highways.
We now discuss the constitutionality of AO 1. Administrative issuances have the
force and effect of law.30 They benefit from the same presumption of validity
and constitutionality enjoyed by statutes.31 These two precepts place a heavy
burden upon any party assailing governmental regulations. The burden of
proving unconstitutionality rests on such party.32 The burden becomes heavier
when the police power is at issue.
The use of public highways by motor vehicles is subject to regulation as an
exercise of the police power of the state.33 The police power is far-reaching in
scope and is the "most essential, insistent and illimitable" of all government
powers.34 The tendency is to extend rather than to restrict the use of police
power. The sole standard in measuring its exercise is reasonableness.35 What is
"reasonable" is not subject to exact definition or scientific formulation. No all-
embracing test of reasonableness exists,36 for its determination rests upon
human judgment applied to the facts and circumstances of each particular
case.37
We find that AO 1 does not impose unreasonable restrictions. It merely outlines
several precautionary measures, to which toll way users must adhere. These
rules were designed to ensure public safety and the uninhibited flow of traffic
within limited access facilities. They cover several subjects, from what lanes
should be used by a certain vehicle, to maximum vehicle height. The prohibition
of certain types of vehicles is but one of these. None of these rules violates
reason. The purpose of these rules and the logic behind them are quite evident.
A toll way is not an ordinary road. The special purpose for which a toll way is
constructed necessitates the imposition of guidelines in the manner of its use
and operation. Inevitably, such rules will restrict certain rights. But the mere
fact that certain rights are restricted does not invalidate the rules.
Consider Section 3(g) of AO 1, which prohibits the conduct of rallies inside toll
ways.38 The regulation affects the right to peaceably assemble. The exercise of
police power involves restriction, restriction being implicit in the power itself.
Thus, the test of constitutionality of a police power measure is limited to an
inquiry on whether the restriction imposed on constitutional rights is
reasonable, and not whether it imposes a restriction on those rights.
None of the rules outlined in AO 1 strikes us as arbitrary and capricious. The
DPWH, through the Solicitor General, maintains that the toll ways were not
designed to accommodate motorcycles and that their presence in the toll ways
will compromise safety and traffic considerations. The DPWH points out that
the same study the petitioners rely on cites that the inability of other drivers to
detect motorcycles is the predominant cause of accidents.39 Arguably,
prohibiting the use of motorcycles in toll ways may not be the "best" measure
to ensure the safety and comfort of those who ply the toll ways.
However, the means by which the government chooses to act is not judged in
terms of what is "best," rather, on simply whether the act is reasonable. The
validity of a police power measure does not depend upon the absolute
assurance that the purpose desired can in fact be probably fully accomplished,
or upon the certainty that it will best serve the purpose intended.40 Reason, not
scientific exactitude, is the measure of the validity of the governmental
126
regulation. Arguments based on what is "best" are arguments reserved for the
Legislature’s discussion. Judicial intervention in such matters will only be
warranted if the assailed regulation is patently whimsical. We do not find the
situation in this case to be so.
Neither do we find AO 1 oppressive. Petitioners are not being deprived of their
right to use the limited access facility. They are merely being required, just like
the rest of the public, to adhere to the rules on how to use the facility. AO 1
does not infringe upon petitioners’ right to travel but merely bars motorcycles,
bicycles, tricycles, pedicabs, and any non-
motorized vehicles as the mode of traveling along limited access
highways.41 Several cheap, accessible and practical alternative modes of
transport are open to petitioners. There is nothing oppressive in being required
to take a bus or drive a car instead of one’s scooter, bicycle, calesa, or
motorcycle upon using a toll way.
Petitioners’ reliance on the studies they gathered is misplaced. Police power
does not rely upon the existence of definitive studies to support its use. Indeed,
no requirement exists that the exercise of police power must first be
conclusively justified by research. The yardstick has always been simply
whether the government’s act is reasonable and not oppressive.42 The use of
"reason" in this sense is simply meant to guard against arbitrary and capricious
government action. Scientific certainty and conclusiveness, though desirable,
may not be demanded in every situation. Otherwise, no government will be
able to act in situations demanding the exercise of its residual powers because
it will be tied up conducting studies.
A police power measure may be assailed upon proof that it unduly violates
constitutional limitations like due process and equal protection of the
law.43 Petitioners’ attempt to seek redress from the motorcycle ban under the
aegis of equal protection must fail. Petitioners’ contention that AO 1
unreasonably singles out motorcycles is specious. To begin with, classification
by itself is not prohibited.44
A classification can only be assailed if it is deemed invidious, that is, it is not
based on real or substantial differences. As explained by Chief Justice Fernando
in Bautista v. Juinio:45
x x x To assure that the general welfare be promoted, which is the end of law,
a regulatory measure may cut into the rights to liberty and property. Those
adversely affected may under such circumstances invoked the equal protection
clause only if they can show that the governmental act assailed, far from being
inspired by the attainment of the common weal was prompted by the spirit of
hostility, or at the very least, discrimination that finds no support in reason. It
suffices then that the laws operate equally and uniformly on all persons under
similar circumstances or that all persons must be treated in the same manner,
the conditions not being different, both in the privileges conferred and the
liabilities imposed. Favoritism and undue preference cannot be allowed. For the
principle is that equal protection and security shall be given to every person
under circumstances, which if not identical is analogous. If law be looked upon
in terms of burden or charges, those that fall within a class should be treated in
the same fashion, whatever restrictions cast on some in the group equally
binding the rest.
We find that it is neither warranted nor reasonable for petitioners to say that
the only justifiable classification among modes of transport is the motorized
against the non-motorized. Not all motorized vehicles are created equal. A 16-
wheeler truck is substantially different from other light vehicles. The first may
be denied access to some roads where the latter are free to drive. Old vehicles
may be reasonably differentiated from newer models.46 We find that real and
substantial differences exist between a motorcycle and other forms of
transport sufficient to justify its classification among those prohibited from
plying the toll ways. Amongst all types of motorized transport, it is obvious,
even to a child, that a motorcycle is quite different from a car, a bus or a truck.
The most obvious and troubling difference would be that a two-wheeled vehicle
is less stable and more easily overturned than a four-wheeled vehicle.
127
A classification based on practical convenience and common knowledge is not
unconstitutional simply because it may lack purely theoretical or scientific
uniformity. Moreover, we take note that the Philippines is home to a host of
unique motorized modes of transport ranging from modified hand-carts
(kuliglig) to bicycle "sidecars" outfitted with a motor. To follow petitioners’
argument to its logical conclusion would open up toll ways to all these
contraptions. Both safety and traffic considerations militate against any ruling
that would bring about such a nightmare.
Petitioners complain that the prohibition on the use of motorcycles in toll ways
unduly deprive them of their right to travel.
We are not persuaded.
A toll way is not an ordinary road. As a facility designed to promote the fastest
access to certain destinations, its use, operation, and maintenance require
close regulation. Public interest and safety require the imposition of certain
restrictions on toll ways that do not apply to ordinary roads. As a special kind of
road, it is but reasonable that not all forms of transport could use it.
The right to travel does not mean the right to choose any vehicle in traversing
a toll way. The right to travel refers to the right to move from one place to
another. Petitioners can traverse the toll way any time they choose using
private or public four-wheeled vehicles. Petitioners are not denied the right to
move from Point A to Point B along the toll way. Petitioners are free to access
the toll way, much as the rest of the public can. The mode by which petitioners
wish to travel pertains to the manner of using the toll way, a subject that can
be validly limited by regulation.
Petitioners themselves admit that alternative routes are available to them.
Their complaint is that these routes are not the safest and most convenient.
Even if their claim is true, it hardly qualifies as an undue curtailment of their
freedom of movement and travel. The right to travel does not entitle a person
to the best form of transport or to the most convenient route to his destination.
The obstructions found in normal streets, which petitioners complain of (i.e.,
potholes, manholes, construction barriers, etc.), are not suffered by them
alone.
Finally, petitioners assert that their possession of a driver’s license from the
Land Transportation Office (LTO) and the fact that their vehicles are registered
with that office entitle them to use all kinds of roads in the country. Again,
petitioners are mistaken. There exists no absolute right to drive. On the
contrary, this privilege, is heavily regulated. Only a qualified group is allowed to
drive motor vehicles: those who pass the tests administered by the LTO. A
driver’s license issued by the LTO merely allows one to drive a particular mode
of transport. It is not a license to drive or operate any form of transportation on
any type of road. Vehicle registration in the LTO on the other hand merely
signifies the roadworthiness of a vehicle. This does not preclude the
government from prescribing which roads are accessible to certain vehicles.
WHEREFORE, we PARTLY GRANT the petition. We MODIFY the Decision dated
10 March 2003 of the Regional Trial Court, Branch 147, Makati City and its
Order dated 16 June 2003 in Civil Case No. 01-034. We
declare VOID Department Order Nos. 74, 215, and 123 of the Department of
Public Works and Highways, and the Revised Rules and Regulations on Limited
Access Facilities of the Toll Regulatory Board. We declare VALID Administrative
Order No. 1 of the Department of Public Works and Communications.
SO ORDERED.
14) G.R. No. L-54958 September 2, 1983
ANGLO-FIL TRADING CORPORATION, ADUANA STEVEDORING CORPORATION,
ANDA STEVEDORING CORPORATION, BEN PAZ PORT SERVICE, INC., MANILA
STEVEDORING CORPORATION, WATERFRONT STEVEDORING AND ARRASTRE
SERVICES, INC., VANGUARD STEVEDORING AND ARRASTRE SERVICES, INC., and
LUVIMIN STEVEDORING/ARRASTRE & DEVELOPMENT
CORPORATION, petitioners, vs. HON. ALFREDO LAZARO, in his capacity as
128
Presiding Judge of Branch XXV, of the Court of First Instance of Manila,
PHILIPPINE PORTS AUTHORITY, COL. EUSTAQUIO S. BACLIG, JR., CDR. PRIMITIVO
SOLIS, JR., and OCEAN TERMINAL SERVICES, INC., respondents.
x-----------------------x
G.R. No. L-54966
PHILIPPINE INTEGRATED PORT SERVICES, INC., petitioner,
vs. THE HONORABLE ALFREDO M. LAZARO, Judge of the Court of First Instance
of Manila, Branch XXV, PHILIPPINE PORTS AUTHORITY, COL. EUSTAQUIO S.
BACLIG, JR., CDR. PRIMITIVO S. SOLIS, JR., and OCEAN TERMINAL SERVICES,
INC., respondents.
GUTIERREZ, JR., J.:
These two petitioners foe certiorari seek to annul the order of the Court of First
Instance of Manila issued ex-parte, lifting the restraining orders it had
previously issued. The setting aside of the restraining orders enabled the
implementation of the Management Contract executed by and between
respondents, providing for respondent Ocean Terminal Services, Inc. as the
exclusive stevedoring contractor at the South Harbor, Port of Manila.
Involved in these two petitions is the operation of stevedoring work in the South
Harbor of the Port of Manila. Stevedoring, as the term is understood in the port
business, consists of the handling of cargo from the hold of the ship to the dock,
in case of pier-side unloading, or to a barge, in case of unloading at sea. The
loading on the ship of outgoing cargo is also part of stevedoring work.
Stevedoring charges at rates approved by the Government are assessed and
collected for the services.
The Philippines Ports Authority (PPA), the government agency charged with the
management and control of all ports, was created by Presidential Decree No.
505, promulgated on July 11, 1974, later superseded by Presidential Decree No.
857 dated December 23, 1975. The PPA’s function is to carry out an integrated
program for the planning, development, financing, and operation of ports and
port districts throughout the country. Among other things, the powers, duties,
and jurisdiction of the Bureau of Customs concerning arrastre operations were
transferred to and vested in the PPA.
The Philippine Integrated Port Services, Inc., (PIPSI), petitioner in G.R. No.
54966, is a stevedoring operator at the Manila South Harbor. Anglo-Fil Trading
Corporation, Aduana Stevedoring Corporation, Anda Stevedoring Corporation,
Ben Paz Port Service, Inc., Manila Stevedoring and Arrastre Services, Inc.,
(Anglo-Fil, et al.,) petitioners in G.R. No. 54958, are stevedoring and arrastre
operators and contractors, likewise at Manila South Harbor, Port of Manila.
Anglo-Fil, et al., are members of the Philippine Association of Stevedoring
Operators and Contractors, Inc. (PASOC).
Prior to the present controversy which arose as a result of the actions of the
PPA, twenty-three (23) contractors competed at the South Harbor for the
performance of stevedoring work. The licenses of these contractors had long
expired when the PPA took over the control and management of ports but they
continued to operate afterwards on the strength of temporary permits and
hold-over authorities issued by PPA.
On May 4, 1976, the Board of Directors of PPA passed Resolution No. 10,
approving and adopting and adopting a set of policies on Port Administration,
Management and Operation. The PPA adopted as its own the own the Bureau
of Customs’ policy of placing on only one organization the responsibility for the
operation of arrastre and stevedoring services in one port.
On April 11, 1980, Presidential Ferdinand E. Marcos issued Letter of Instruction
No. 1005-A which among other things, directed PPA;
129
To expeditiously evaluate all recognized cargo-handling contractors
and port-related service operators doing business in all Port Districts in
the country under such criteria as PPA may set and to determine the
qualified contractor or operator under said criteria in order to ensure
effective utilization of port facilities, prevent pilferage and/or pinpoint
responsibility for its and provide optimum services to major ports vital
to the country’s trade and economy.
This was followed by the President’s memorandum to respondent Bacling
dated April 18, 1980, directing submission of a report on the integrated of the
stevedoring operations in Manila South Harbor and emphasizing the need for
such integration as well as the strengthening of the PPA in order to remedy the
problems therein. In compliance therewith, PPA made a study evaluation of the
arrastre and stevedoring industry in the ports where integration had not yet
been achieved. A special committee was created on April 25, 1980 to make a
final evaluation of existing operators in the South Harbor and to select the most
qualified among them.
On April 28, 1980, the committee submitted its report recommending the
award of an exclusive contract for stevedoring services in the South Harbor to
respondent Ocean Terminal Services, Inc. (OTSI) after finding it the best
qualified among the existing contractors. The committee report and
recommendation were indorsed by respondent Primitivo Solis, Jr., Port
Manager of Manila, to respondent Baclig on April 30, 1980. On May 14, 1980,
the latter approved the recommendation.
In accordance with the President’s memorandum dated April 18, 1980, PPA
submitted the committee report to him. On May 24, 1980, the President
approved the recommendation to award an exclusive management contract to
OTSI.
On June 27, 1980, PPA and OTSI entered into a management contract which
provided, among others, for a five-year exclusive operation by OTSI of
stevedoring services in the South Harbor, renewable for another five (5) years.
The contract set the commencement of the exclusive operation by OTSI upon
proper determination by PPA which shall not be earlier that two (2) months
from the approval of the contract by the Board of Directors of the PPA. The
latter gave its approval on June 27, 1980.
On July 23, 1980, petitioner PIPSI instituted an action against PPA and OTSI for
the nullification of the contract between the two, the annulment of the 10% of
gross stevedoring revenue being collected by PPA, and injunction with
preliminary injunction. The case was docketed as Civil Case No. 133477 in the
Court of First Instance of Manila, provided over by respondent Judge Alfredo
Lazaro. On July 29, 1980, the respondent court issued a restraining order ex-
parte, enjoining respondents PPA and OTSI from implementing the exclusive
contract of stevedoring between them.
On August 21, 1980, with leave of court, petitioners, Anglo-Fil, et al., filed their
complaint in intervention. The motion was granted and on August 22, 1980,
respondent court issued another ex-parte restraining order in the case to
include the petitioners Anglo-Fil et al., under the benefits of such order.
On August 30, 1980, PPA filed an urgent motion to lift the restraining orders "in
view of their long delay in the resolution of the injunction incident and the
countervailing public interest involved." On September 1, 1980, respondent
Judge issued an order, which reads:
"AS PRAYED FOR, the restraining orders issued by the this Court on July 29, 1980
and August 20, 1980, are hereby dissolved, lifted, and set aside without
prejudice to the Court’s resolution on the propriety of issuing the writ of
preliminary injunction prayed for by the petitioners."
On September 5, 1980, PPA sent a letter to the General Manager of PIPSI
informing him that due to the lifting of the temporary restraining order, it was
withdrawing PIPSI’s hold-over authority to operate or provide stevedoring
services at South Harbor effective September 7, 1980.
130
Petitioners Anglo-Fil, et al., and PIPSI, therefore, filed the present petitions for
certiorari with preliminary injunction alleging that the lifting of the retraining
orders ex-parte by respondent Judge was clearly affected with grave abuse of
discretion amounting to lack of jurisdiction. They also applied for the issuance
in the meantime of a restraining order.
On September 9, 1980, we ordered the consolidation of the two cases and on
August 12, 1980, heard the petitioners’ motions for a restraining order.
On September 15, 1980, the respondent court issued an order in Civil Case No.
133477 denying the application of petitioners for a writ of preliminary
injunction and affirming its order of September 1, 1980 lifting the temporary
restraining orders issued in the case.
On the same day, the Katipunan ng mga Manggagawa sa Daungan (KAMADA),
a labor federation and its thirteen (13) member labor organizations filed a
petition to intervene in the consolidated cases. According to KAMADA, its
members would lose their jobs if the contract was implemented. It also alleged
that the collective bargaining contract between OTSI and PWUP would be
prejudicial to workers because KAMADA members received greater benefits
from the ousted contractors;
On September 29, 1980, PIPSI filed a supplemental petition to annul the order
of the respondent judge denying the application for preliminary injunction and
affirming the orders issued on July 29 and August 22, 1980. 1âwphi1
On October 14, 1980, PPA filed its comment with opposition to preliminary
injunction stating that the lifting of the restraining orders by respondent judge
was intended to preserve the status quo pending resolution of the preliminary
injunction; that said orders were issued without hearing or bond, therefore, the
dissolution was proper considering that it had been in force for one month and
an early resolution of the motion for injunction was not in sight, and that in
dissolving an injunction already issued, the court cannot be considered as
having acted without jurisdiction or in excess thereof even if dissolution had
been made without previous notice to the adverse party and without a hearing.
Furthermore, it argued that when the purpose of an administrative
determination is to decide whether a right or privilege which an applicant does
not possess shall be granted to him or withheld in the exercise of a discretion
vested by statute, notice and hearing are not necessary. It also added that the
policy of integration in the award by PPA to OTSI is impressed with public
interest while what is involved as far as petitioners were concerned was merely
their alleged right to operate stevedoring services, a property right the denial
of which could easily be restored in the event the respondent court decided
that petitioners are entitled to it.
In their consolidated reply, Anglo-Fil, et al., argued that the temporary order in
their favor was not issued ex-parte for the following reasons: a) it was issued
when PIPSI and PPA were already conducting hearings on the petition for
preliminary injunction; b) it was announced in open court; and c) PPA did not
object to such issuance. Likewise, they argued that although a permit to
operate is a privilege, its withdrawal must comply with due process of law just
like the practice of law, medicine, or accountancy, and that not only property
rights are involved but their very livelihood, their right to live.
On October 21, 1980, we issued a resolution granting the temporary mandatory
restraining order "effective immediately ordering respondents to allow the
workers represented by said petitioner-intervenors to render the stevedoring
services performed by them on foreign vessels in the Manila South Harbor
before the execution of the exclusive stevedoring contract of June 27, 1980
until further orders of the Court, the order of respondent Judge, dated
September 1 and 15, 1980 as well as the implementing letter of Philippine Ports
Authority of September 5, 1980 to the contrary notwithstanding."
On October 24, 1980, PPA issued Memorandum Order No. 23 providing for
guidelines in implementing the temporary mandatory restraining order of the
Supreme Court dated October 21, 1980, to wit:
xxx xxx xxx
131
(1.) The Office of the Harbor Master shall determine which union has
serviced a particular vessel for the period from January 1, 1980 to June
26, 1980. The number of services performed by a particular union for
a given vessel shall be quantified for the said period after which each
union shall be identified whether they are affiliated with PWUP or
KAMADA.
(2.) The most number of times that a union has serviced a particular
vessel with its affiliation properly considered shall continue to service
said vessel for its incoming calls or arrivals.
(3.) If there is a tie in the number of services performed by both PWUP
and KAMADA affiliated unions, the last union that serviced said vessel
shall be allowed to continue servicing the same on all its incoming calls
or arrivals.
(4.) Once the union has been properly identified during the berthing
meeting, the Harbor Master shall inform Ocean Terminal Services, Inc.
accordingly and shall be authorized to negotiate with the union or the
gang leader concerned on the number of gangs as may be required by
the vessel or its agent.
(5.) All unions in this order shall refer only to South Harbor stevedoring
union.
(6.) KAMADA shall have the duty and responsibility to certify that the
stevedores deployed in any given vessel allowed for their work are
bona fide members of their group and that they were the same
stevedores who serviced assigned vessel prior to the stevedoring
services integration.
On November 7 and 10, 1980 OTSI and PPA filed their separate answers to
KAMADA’s petition in intervention. They assured this Court that none of the
legitimate stevedores who had joined the KAMADA would be displaced from
work provided he joined PWUP. Written guarantees of this assurance were
separately submitted to this Court by both OTSI and PWUP. OTSI further alleged
in its answer that, contrary to the claim of KAMADA, the CBA signed by OTSI
with PWUP represented the best of employment ever offered to the stevedores
in the South Harbor.
On November 13, 1980, Anglo-Fil, et al., filed an urgent motion to cite PPA and
OTSI in contempt on the following grounds: 1) issuance of PPA-POM
Memorandum No. 23, series of 1980; 2) letter of October 29, 1980 of PPA to
Anglo-Fil, et al., denying a "non-existing" request for permission to operate by
the latter; and 3) refusal of PPA authorities to issue gate passes to KAMADA-
affiliated stevedores to be used and employed by Anglo-Fil, et al., in their
resumption of work, pursuant to the Supreme Court order of October 21, 1980.
On November 20, 1980, PPA filed a motion to lift the temporary mandatory
restraining order but the same was denied by this Court.
On November 26, 1980, an urgent motion for clarification of the resolution of
October 21, 1980 was filed by KAMADA seeking clarification as to which
company its workers should work for, alleging that after Antranco Stevedores
Union (Antranco) a KAMADA member, had received a letter from OTSI to supply
the necessary stevedores gang to service the S/S "Success", Anglo-Fil Trading
Corporation prohibited its employees who are members of Antranco from
working for OTSI in the light of the resolution of this Court and the existing
collective bargaining agreement between said union and Anglo-FilTrading
Corporation. As a consequence, the union was allegedly unable to service S/S
"Success" and from October 21, 1980 up to the present, OTSI failed to allow
members of KAMADA to service several vessels.
A joint manifestation was filed by respondents PPA and OTSI alleging
compliance with the above resolution to the effect that KAMADA workers have
been and are being employed on the vessels they used to serve prior to June
27, 1980, and justifying issuance of PPA-POM Memorandum No. 23, as a means
to avert possible conflict among the competing union groups (PWUP and
132
KAMADA) involved, to provide a reasonable and fair system for determining
which group had previously worked on a vessel and should work on its
subsequent calls, and to insure that only the bonafide stevedores contemplated
by the order of this Court are allowed to work.
On December 2, 1980, another motion for clarification was filed by KAMADA
regarding the phrase "foreign vessels" which it stated to be inaccurate as
KAMADA members also work on vessels of Philippine registry like those
operated by Sweet Lines and Lorenzo Shipping Lines whose vessels also dock at
the Manila South Harbor. It suggested that the basis should not be the foreign
vessels but the shipping agents or charterers and consignees and that the basis
for determining and quantifying the vessels given to PWUP or KAMADA should
be from January 1, 1978 to September 7, 1980.
This Court in a resolution dated December 9, 1980, granted the motion of
KAMADA to wit:
xxx xxx xxx
x x x (3) GRANT the motion for clarification by petitioners-intervenors issuing a
resolution previously released, the pertinent portion of which reads, ‘for while
the order of October 21, 1980 is on its face quite definite as to what it purports
to require, this resolution may remove any doubt as to its purpose and intent,
thus assuring the utmost fidelity in its compliance. The order requires and
mandates that all workers represented by said petitioners-invtervenors can
continue rendering stevedoring services performed by them on foreign vessels,
in Manila South Harbor before the execution of the exclusive stevedoring
contract of June 27, 1980, until further orders of the Court, without any
reference to any particular vessel, the decisive factor being shipping lines
involved and the fact that they were at that time rendering stevedoring
services, irrespective of the labor unions to which they are affiliated. xxx."
Inspite of our clarificatory order, various problems in its implementation appear
to have beset the parties. Repeated motions and manifestations and
countermotions and countermanifestations were filed with unbroken
regularity, swelling the records of these petitions to unusual proportions. After
requiring the parties to submit their respective positions, we issued on January
6, 1983, a resolution which modified our earlier orders as follows:
"G.R. No. 54958 (Anglo-Fil Trading Corporation, et al. vs. Hon.Alfredo Lazaro, et
al.); and G.R. No. 54966 (Philippine Integrated Port Services, Inc. vs. Hon.
Alfredo Lazaro, et al.). – Considering the urgent motion and manifestation of
petitioners-intervenors filed on March 20, 1982, the comment of respondent
Ocean Terminal Services, Inc., filed on June 7, 1982, the comment of
respondent Philippine Ports Authority filed on June 8, 1982, the reply of
petitioners-intervenors filed on June 28, 1982, the rejoinder of respondent
Ocean Terminal Services, Inc., filed on July 27, 1982, the rejoinder of
respondent Philippine Ports Authority filed on August 6, 1982 and the
supplemental motion and manifestation filed by petitioners-intervenors on
September 15, 1982, the Court Resolved to direct the parties concerned to
observe the following guidelines in the allocation of stevedoring assignments:
1. Any vessel belonging to a shipping line shall be assigned for stevedoring work
to the union that had served that shipping line the greatest number of times as
appearing in the PPA records for the six-month period immediately preceding
the execution of the stevedoring contract of OTSI. 2. The above
notwithstanding, whenever a vessel destined to or proceeding from the Port of
Manila has been chartered for a particular voyage by a consignee or any person
having interest in the goods carried therein, such vessel shall be assigned for
stevedoring work to the union that served the charterer the greater number of
times as appearing in the PPA records for six-month period immediately
preceding the execution of the stevedoring contract of OTSI. In case there are
two or more charterer who pays the highest freight charges shall be the
determining fact in the assignment. 3. Vessels of new shipping lines calling at
the Port of Manila for the first time as well as vessels contracted by new
charterers shall be assigned to the union of choice of the new shipping line or
charterer as the case may be."
133
The main issue in these petitions is whether or not the respondent judge acted
with grave abuse of discretion when he lifted ex-parte the temporary
restraining order he had earlier issued also ex-parte.
From the viewpoint of procedure, we see no grave abuse of discretion or want
of jurisdiction. Subsequent to the issuance to the questioned order, the
respondent court heard the parties on the petitioners’ application for a writ of
preliminary injunction and, after hearing the parties’ evidence and arguments,
denied the application for the writ. We also agree the with the respondents
that it is not grave abuse of discretion when a court dissolves ex-parte abuse of
discretion when a court dissolves ex-parte a restraining order also issued ex-
parte. (Calaya v. Ramos, 79 Phil, 640; Clarke v. Philippine Ready Mix Concrete
Co., 88 Phil. 460; Larap Labor Union v. Victoriano, 97 Phil. 435.)
The restraining orders dated July 29, 1980 and August 22, 1980 respectively
provide:
xxx xxx xxx
"Finding the allegations in the complaint to be sufficient in form and in
substance, a temporary restraining order is hereby issued x x x.
xxx xxx xxx
"and to maintain the status quo until further orders from this court.
x x x.
xxx xxx xxx
"It appearing that on July 29, 1980, this Court issued an order granting the
prayer of the original plaintiff for a temporary restraining order, the same order
is hereby reiterated and to include Anglo-Fil Trading Corporation. x x x.
xxx xxx xxx
"plaintiffs-intervenors herein and for the parties to serve the status quo until
further orders from this Court." (Italics supplied)
A restraining order is an order to maintain the subject of controversy in status
quo until the hearing of an application for a temporary injunction. Unless
extended by the court, a restraining order ceases to be operative at the
expiration of the time fixed by its terms. In cases where it has been granted ex-
parte, it may be dissolved upon motion before answer. (See the Revised Rules
of Court, Francisco, pp. 184-186, citing 43 CJS, 28 Am. Jur)
From the aforequoted dispositive portions, it is beyond doubt that the duration
of the restraining orders was "until further orders from the court." In lifting said
restraining orders on September 1, 1980, respondent judge merely exercised
the prerogative he earlier reposed upon himself to terminate such orders when
circumstances so warranted. Considering again that the previous grants of the
restraining orders in favor of petitioners were made ex-parte and without bond,
the need for a notice and hearing in regard to such lifting was not necessary,
much less mandatory.
The petitioners’ contention that the lifting of the restraining order had
rendered moot and academic the injunction case in the trial court is likewise
untenable. A restraining order is distinguished from an injunction in that it is
intended as a restraint on the defendant until the propriety of granting an
injunction pendente lite can be determined, and it goes no further than to
preserve the status quo until such determination. Therefore, the grant, denial,
or lifting of a restraining order does not in anyway pre-empt the court’s power
to decide the issue in the main action which in the case at bar, is the injunction
suit. In fact, the records will show that the trial court proceeded with the main
suit for injunction after the lifting of the restraining orders.
Petitioner PIPSI also maintains that there were no considerations of public
interest which supported the lifting. On the contrary, the lifting allegedly
134
permitted a situation palpably against public interest, that is, confiscation of
petitioners’ business and those similarly situated. This, again, is untenable.
The streamlining of the stevedoring activities in the various ports of the
Philippines was undertaken by PPA to implement LOI No. 1005-A. The public
interest, public welfare, and public policy sought to be subserved by said LOI
are clearly set forth in its whereas clauses. They areas follows:
xxx xxx xxx
"WHEREAS, it is a declared national policy to support and accelerate the
development of government port facilities as well as vital port development
projects and services;
xxx xxx xxx
"WHEREAS, it is a prime concern of government to protect the interests of
legitimate port workers and port users in the country;
xxx xxx xxx
"WHEREAS, there is need to rationalize and integrate cargo-handling and other
port-related services as may have been contracted out or authorized by the PPA
in the various ports of the country;
"WHEREAS, the procedures of voluntary merger, consolidation and/or bidding
for the awarding or contracting of cargo-handling and other port-related
services have heretofore proven ineffective and resulted in prolonged and
unproductive wrangling, all to the detriment of efficient port operations and
development; and
"WHEREAS, it now become necessary to revitalize and streamline the PPA to
carry out its functions and duties as a vital link in the governmental machinery
and the thrust for national economic development;"
xxx xxx xxx
Clearly, there is a reasonable relation between the undeniable existence of an
undesirable situation and the statutory attempt to avoid it. "Public welfare,
then, lies at the bottom of the enactment of said law, and the state in order to
promote the general welfare may interfere with personal liberty, with property,
and with business and occupations." (See Alalayan v. National Power
Corporation, 24 SCRA 172; Ermita-Malate Hotel and Motel Owners Association
v. City Mayor, 20 SCRA 849) These considerations were considered by the
respondent judge when he issued his questioned order dated September 1,
1980. He stated:
xxx xxx xxx
"While in the main this Court is not insensitive to the plight of the petitioners,
the overriding considerations of public interest, as impressed by the Office of
the Solicitor General, must be given greater weight and important. This is
compounded by the way and manner by which the parties are now fashioning
and shaping their respective positions. The proceedings, to say the least, have
become accented with a myriad of contentious facts and intercalated with
complex legal issues. For the matter is not a simple determination of right and
wrong but a collision of ideas and viewpoints. All these, indeed, militate against
an early resolution of the application for a writ of preliminary injunction.
xxx xxx xxx
The above statement are sufficient bases for the lifting of the order. It is clear
that not only did the respondent judge base the lifting on consideration of
public interest but also on the fact that the restraining orders were issued ex-
parte without bond and that the resolution of the motion for preliminary
injunction was still far from being decided.
The statement of the respondent judge that "it cannot sit in judgment, without
prejudice to public interest, on the truth and wisdom of the allegation in
135
support of the Urgent Motion" should not be interpreted to mean that courts
cannot pass upon the greater issue of whether or not public interest is served
or is prejudiced. The determination by PPA that the measure sought to be
enforced is justified by public interest and the PPA manner of implementing a
Presidential Decree and Letters of Instruction are subject to judicial review.
The Constitution defines the powers of government. Who is to determine the
nature, scope, and extent of such powers? The Constitution has provided for
the instrumentality of the judiciary as the rational way. In determining whether
or not the exercise of powers vested by the Constitution truly serves the general
welfare or is affected by public interest, the judiciary does not assert any
superiority over the other departments but only fulfills the solemn and sacred
obligation assigned to it by the Constitutions to determine conflicting claims of
authority and to establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them. This is in truth all that
is involved in what is termed "judicial supremacy" which properly is the power
of judicial review under the Constitutions. (See Angara vs. Electoral
Commission, 63 Phil. 139) This is why questions of expropriation of private
lands, we have upheld the court’s authority to make inquiry on whether or not
lands were private and whether the purpose was in fact, public. (City of Manila
v. Chinese Community of Manila, 40 Phil. 340). Similarly, in the present cases,
the question of whether or not the lifting of the restraining orders will prejudice
public interest and will run counter to the protection to labor provision of the
Constitution is determinable by the judiciary under the power of judicial review.
From the records of these petitions, it is evident that the writ of certiorari
cannot be granted. The respondent judge’s action was not tainted by any
capricious or whimsical exercise of judgment amounting to lack of jurisdiction.
It is settled to the point of being elementary that the only question involved in
certiorari is jurisdiction, either want of jurisdiction or excess thereof, and abuse
of discretion shall warrant the issuance of the extra-ordinary remedy of
certiorari only when the same is grave as when the power is exercised in an
arbitrary or despotic manner. . . . (FS. Divinagracia Agro Commercial, Inc. v.
Court of Appeals, 104 SCRA 180; Abig v. Constantino, 3 SCRA 299; Abad Santos
v. Province of Tarlac, 67 Phil. 480; Alafriz v. Nable, 72 Phil. 278; Travers Luna,
Inc. v. Nable, 72 Phil. 278; and Villa Rey Transit, Inc. v. Bello, 75 SCRA 735).
It is not sufficient, however, to resolve these petitions on whether or not there
was grave abuse of discretion tantamount to lack or exercise of jurisdiction.
The larger issue remains. Behind the maneuvering and skirmishing of the
parties lies a question of power. Does the PPA have the power and authority to
award an exclusive stevedoring contract in favor of respondent OTSI? Is the
PPA-OTSI Management Contract executed pursuant to P.D. No. 857 and LOI No.
1005-A, valid?
The facts bearing on this issue are not in dispute and are worth reiterating. They
are summarized by the respondent court as follows:
xxx xxx xxx
"Before the advent of Presidential Decree No. 505, as amended by Presidential
Decree No. 857, the administration and management of the South Harbor, Port
of Manila, was under the Bureau of Customs. It appears that the plaintiffs,
among others, were engaged in and allowed to operate stevedoring services on
the basis of special permits granted by the Bureau of Customs (Exhibit ‘A’).
"It further developed that the number of stevedoring operators or contractors
made it difficult for the Bureau of Customs to maintain order and discipline
among them to the detriment of efficiency and the desired performance at the
South Harbor. This appears to be true with other ports. Thus, an in-depth study
and analysis of the problems attendant to arrastre and stevedoring operations
was initiated. The only solution appeared to be the integration of contractors
engaged in stevedoring services with the ultimate objective of having only one
stevedoring contractor to engage in cargo-handling service in a given port.
Accordingly, on May 8, 1975, the Bureau of Customs issued Customs
136
Memorandum Order No. 28-75 providing guidelines for the merger of the multi-
operators in the same ports (Exhibit ‘1’).
"On December 23, 1975, Presidential Decree No. 857 was promulgated
superseding Presidential Decree No. 505 whereby the jurisdiction of the Bureau
of Customs concerning arrastre operations, among others, were transferred
and vested in the PPA.
"On May 4, 1976, the PPA, pursuant to its avowed objectives, approved the PPA
policies on port administration, management and operation, adopting as a
policy the horizontal and vertical integration of existing operators at each port
(Exhibit ‘2’ and ‘3’).
"On January 19, 1977, a memorandum order was issued whereby the different
port operators or contractors who have existing permits, licenses, contracts,
and other kinds of memorandum agreement issued by the Bureau of Customs
were Temporarily allowed the continuance of their services on a hold-over
capacity until such time when the PPA implements its own pertinent policy
guidelines on the matter (Exhibits ‘5’ and ‘6’).
On May 27, 1977, PPA Memorandum Order No. 21, series of 1977, was passed
reiterating the implementation of the policy on integration to ‘insure efficiency
and economic in cargo-handling operation and provide better service to port
users and to amply protect the interest of labor and the government as well.’ It
is the declared policy that there should only be one stevedoring contractor to
engage in cargo-handling services in a given port.
"On April 11, 1980, the Presidential issued Letter of Instruction No. 1005-A
(Exhibit ‘7’) which directed the PPA to accelerate the rationalization of all cargo-
handling services and to expeditiously evaluate all recognized cargo-handling
contractors and port related service operators under such criteria as the PPA
may set and to determine the qualified contractor or operator in order to insure
effective utilization of port facilities, prevent pilferage and/or pinpoint
responsibility for it and provide services major ports vital to the country’s trade
and economy. This Letter of Instruction was dictated by experience where the
‘procedures of voluntary mergers, consolidation and/or bidding for the
awarding or contracting of cargo-handling and other port related services have
heretofore proven ineffective and resulted in prolonged and unproductive
wrangling, all to the detriment of efficient port operations and development.’
"On April 18, 1980, the President issued a memorandum to the PPA (Annex ‘B’
of the Answer and Opposition of OCEAN) to submit its report on the integration
and rationalization of the stevedoring operation in Manila South Harbor and
the submission for his approval of the resolution of the board regarding
contracts entered into in connection therewith. This memorandum was
dictated by ‘heavy losses suffered by shippers as well as the smuggling of
textiles in the South Harbor.’
"Pursuant to and in compliance with the Letter of Instruction of April 11, 1980
and the Memorandum of the President dated April 18, 1980, the PPA created a
Special Evaluation Committee composed of Atty. David R. Simon, member of
the Legal Department of PPA and concurrently Assistant to the Port of Manila,
as Chairman; Mr. Leonardo Mejia, Chief of the Commercial Development
Division, Port of Manila; and, Capt. Jovito G. Tamayo, Harbor Master and Chief
of the Harbor Operations Division of the Port of Manila, as members. The
respective and individual duties of the members of the Committee taken in
their integral entirely could easily sum up to an almost complete overview of
the functions of stevedoring contractors and place them in a vantage position
as to provide proper evaluation and determination of the individual
performance, qualification, and compliance of PPA requirements by each
stevedoring operator.
"The Committee took into account certain factors with their corresponding
percentage weights in its determination, who among the existing operators, is
most qualified for an award of an exclusive contract. In connection therewith,
OCEAN was rated 95% topping all the rest by a wide margin.
137
"On April 28, 1980, the Evaluation Committee submitted its report
recommending the conclusion of a management contract with OCEAN being
the most qualified (Exhibit ‘8’) which recommendation was adopted by the PPA.
"On June 27, 1980, a management contract was executed by and between PPA
and OCEAN (Exhibit ‘11’).
"On August 19, 1980, the President approved the exclusive management
contract between PPA and OCEAN (Exhibit ‘10’).
"In the meantime, in letters dated July 13, 1980 (Exhibit ‘N’) and July 14, 1980
(Exhibit ‘F’), PIPSI and INTERVENORS were informed of the management
contract with OCEAN as exclusive operator at the South harbor, Port of Manila,
beginning August 27, 1980."
xxx xxx xxx
The petitioners are on extremely shaky grounds when they invoke the non-
impairment clause to sustain their charge of invalidity. According to the
petitioners, contracts entered into with local and foreign clients or customers
would be impaired.
Even in the United States during the heyday of the laissez faire philosophy, we
are informed that the American Supreme Court’s interpretations have never
allowed the contract clause to be an inflexible barrier to public regulation.
According to Gerald Gunther, Professor of Constitutional Law at Stanford
University, historians have probably exaggerated the impact of the early
contract clause decisions on American economic and legal developments, that
the protected position of corporations in the 19th century was due less to any
shield supplied by the U.S. Supreme Court than to legislative unwillingness to
impose restraints-an unwillingness reflecting the laissez faire philosophy of the
day. After analyzing the leading cases on the contract clause from 1810
(Fletcher v. Peck, 6 Cranch 87) to 1880 (Stone v. Mississippi, 101 U.S. 814) he
cites the 1914 decision in Atlantic Coast Line R. Co. v. Goldsboro (232 U.S. 548)
where the U.S. Court ruled "It is settled that neither the contract clause nor the
due process clause has the effect of overriding the power of the State to
establish all regulations that are reasonably necessary to secure the health,
safety, good order, comfort, or general welfare of the community; that this
power can neither be abdicated nor bargained away, and is inalienable even by
express grant; and that all contract and property rights are held subject to its
fair exercise" and Manigault v. Springs (199 U.S. 473) where the same Court
stated that "parties by entering itno contract may not stop the legislature from
enacting laws intended for the public good." (See Gunther, Cases and Materials
On Constitutional Law, 1980 Edition, pp. 554-570).
In the Philippines, the subservience of the contract clause to the police power
enacting public regulations intended for the general welfare of the community
is even more clearcut.
As pointed out by then Senior Associate, now Chief Justice Enrique M.
Fernando, the laissez faire or let alone philosophy has no place in our scheme
of things, not even under the 1935 Constitution. (See Fernando, The
Constitution of the Philippines, Second Edition, pp. 111-114) In his concurring
opinion in Agricultural Credit and Cooperative Financing Administration v.
Confederation of Unions (30 SCRA 649, 682-683) Chief Justice Fernando stated:
"xxx With the decision reached by us today, the Government is freed from the
compulsion exerted by the Bacani doctrine of the ‘constituent-ministrant’ test
as a criterion for the type of activity in which it may engage. Its constricting
effect is consigned to oblivion. No doubts or misgivings need assail us that
governmental efforts to promote the public weal, whether through regulatory
legislation of vast scope and amplitude or through the undertaking of business
activities, would have to face a searching and rigorous scrutiny. It is clear that
their legitimacy cannot be challenged on the ground alone of their being
offensive to the implications of the laissez-faire concept. Unless there be a
repugnancy then to the limitations expressly set forth in the Constitution to
protect individual rights, the government enjoys a much wider latitude of action
138
as to the means it chooses to cope with grave social and economic problems
that urgently press for solution. xxx"
The Manila South Harbor is public property owned by the State. The operations
of this premiere port of the country, including stevedoring work, are affected
with public interest. Stevedoring services are subject to regulation and control
for the public good and in the interest of general welfare.
Not only does the PPA, as an agency of the State enjoy the presumption of
validity in favor of its official acts implementing its statutory charter, it has more
than adequately proved that the integration of port services-is far from
arbitrary and is related to the stated governmental objective.
A single contractor furnishing the stevedoring requirements of a port has in its
favor the economy of scale and the maximum utilization of equipment and
manpower. In turn, effective supervision and control as well as collection and
accounting of the government share of revenues are rendered easier for PPA
than where there are 23 contractors for it to oversee. As respondent court
found from the evidence, the multiple-contractor system has bred cut-throat
competitions in the port. Understandably, most contractors had been unable
to acquire sufficient modern facilities, observe labor standards for their
workers, maintain efficiency in services, and pay PPA dues. The questioned
program would accelerate the rationalization and integration of all cargo-
handling activities and port-related services in major ports and the
development of vital port facilities, projects, and services.
The contention of petitioners Anglo-Fil, et al., that due process was violated
resulting to a confiscatory effect on private property is likewise without merit.
In the first place, the petitioners were operating merely on "hold-over" permits.
These permits which were based on PPA memorandum Order No. 1, dated
January 19, 1977 provided:
xxx xxx xxx
"In view thereof and pending proper evaluation by this Office of all existing
permits, licenses, contracts, and other kinds of memorandum agreements
issued by the Bureau of Customs to the different port operators or contractors,
you may temporarily allow the continuance of their services on a hold-over
capacity until such time when the PPA implements its own pertinent policy
guidelines on the matter.
xxx xxx xxx
Clearly, all hold-over permits were by nature temporary and subject to
subsequent policy guidelines as may be implemented by PPA. Such should have
served as sufficient notice to petitioners that, at any time, their authorities may
be terminated.
Petitioners PIPISI would also impress upon this Court that the certification
issued to it and its fellow contractors by PPA, dated August 30, 1979, showed
that they were not only kept in the dark as to PPA’s subsequent move to award
OTSI an exclusive contract, but that they were actually lulled into believing that
their temporary permits were being given pending issuance of their PTO or
Permit to Operate.
We do not believe so. The second paragraph of the certification states that the
hold-over permit was still subject to the memorandum quoted above. The
certification provided that: "In accordance with PPA Memo Circular No. I, dated
January 9, 1977…, the said firm is allowed to continue operating at the South
Harbor, Port manila." (italics supplied.)
Whether or not the petitioners would be issued a PTO depended on the sound
discretion of PPA and on the policies, rules and regulations that the latter may
implement in accordance with the statutory grant of power. Petitioners,
therefore, cannot be said to have been deprived of property without due
process because, in this respect, what was given them was not a property right
but a mere privilege and they should have taken cognizance in the South
139
Harbor, their permits can be withdrawn anytime the public welfare deems it
best to do so.
The absence of arbitrariness or bad faith is manifest in the selection procedure
adopted. The award in fabvor of OTSI was the result of an evaluation of
performance of existing contractors made by a special committee created by
the PPA. The respondent court found from the evidence that the members of
that committee were "in a vantage position as to provide proper evaluation and
determination of the individual performance, qualification, and compliance of
the PPA requirements by each stevedoring operator." The committee rated
OTSI with the highest grade of 95% in its evaluation.
And significantly, since no less than the President of the Philippines approved
the award of the management contract to OTSI presumptively after through
consideration of all factors relevant to efficient stevedoring services, it is
difficult for this Court to find a violation of due process in the selection
procedure. In the language of the Chief Justice in Lim v. Secretary (34 SCRA 751)
if the task of overturning a decision of a department head is attended with
difficulty, the burden of persuasion becomes much heavier when the
challenged action is encased in the armor of an explicit presidential approval.
In the case at bar, there is nothing in the record remotely assailing the motives
of the President in giving his imprimatur to the award.
In seeking the nullification of the management contract, the petitioners also
invoke the constitutional provision on monopolies and combination. Section 2,
Article XIV of the Constitution provides:
The state shall regulate or prohibit private monopolies when the public interest
so requires. No combinations in restraint of trade or unfair competition shall
1âwphi1
be allowed.
Private monopolies are not necessarily prohibited by the Constitution. They
may be allowed to exist but under State regulation. A determination must first
be made whether public interest requires that the State should regulate or
prohibit private monopolies. A distinction prevails as regards combinations in
restraint of trade and unfair competition which are prohibited outright by the
Constitution.
By their very nature, certain public services or public utilities such those which
supply water, electricity, transportation, telephone, telegraph, etc. must me
given exclusive franchises if public interest is to be served. Such exclusive
franchises are not violative of the law against monopolies. (58 Corpus Juris
Segundum 958-964).
Neither is the management contract violative of the Anti-Graft Law. It is a
contract executed in pursuance to law and the instructions of the President to
carry out government objectives to promote public interest. The act did not
cause "undue injury" to the petitioners who as explained earlier had no vested
property rights entitled to protection. There is no undue injury to the
government nor any unwarranted benefit to OTSI consideration for PPA which
is the payment by OTSI of ten percent (10%) of its gross income, something
which petitioner PIPSI is loathe to pay. The rationalization and effective
utilization of port facilities is to the advantage of the Government. Furthermore,
the discretion in choosing the stevedoring contractor for the south Harbor, Port
Manila, belongs by law to PPA. As long as standards are set in determining the
contractor and such standards are reasonable and related to the purpose for
which they are used, the courts should not inquire into the wisdom of PPA’s
choice. The criterion used by PPA namely, the identification of a contractor with
the highest potential for operating an exclusive service, appears reasonable.
The factors which were taken into account in determining the exclusive
contractor are indicia of reasonableness. They are:
Productivity…………………. 25%
Equipment Requirement
Capability…………………… 25%
Financial Capability………… 15%
140
Promptness in Paying
Government share…………… 25%
Compliance with other
PPA Requirements…………... 20%
100%
It is settled rule that unless the case justifies it, the judiciary will not interfere in
purely administrative matters. (Monark International, Inc. v. Noriel, 83 SCRA
114) Such discretionary power vested in the proper administrative body, in the
absence of arbitrariness and grave abuse so as to go beyond the statutory
authority, is not subject to the contrary judgment or control of others. (See
Meralco Securities Corporation v. Savellano, 117 SCRA 804). In general, courts
have no supervisory power over the proceedings and actions of the
administrative departments of the government. This is particularly true with
respect to acts involving the exercise of judgment or discretion, and to findings
of fact. (Pajo v. Ago and Ortiz, 108 Phil.905)
In view of the foregoing, we find the PPA-OTSI Management Contract executed
on June 27, 1980, valid and devoid of any constitutional or legal infirmity. The
respondents, however, should maintain the policy of absorption of bona-fide
displaced port workers in the integration scheme as mandated not only by LOI
No. 1005-A but by the policy of the State to assure the rights of workers to
security of tenure. (sec. 9, Art. II, Constitution) We note that both PPA and OTSI
have given assurance in their answers that none of the legitimate stevedores
would be displaced from work although they added that their bonafide
stevedores should join PWUP. Which union a worker or various workers should
join cannot be ordained by this Court in these petitions where the basic issue is
the validity of the exclusive stevedoring contract given to one operator for one
port. This matter will have to be eventually threshed out by the workers
themselves and the Ministry of Labor and Employment before it may be
elevated to us, if ever. However, we reiterate the guidelines earlier issued that
no bona fide stevedore or worker should be deprived of employment he used
to enjoy simply because of the execution and implementation of the disputed Concepcion, Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana,
Management Contract. This absorption of bona fide workers is an act of social Escolin and Relova, JJ., concur.
justice. When a person has no property, his job may possibly be his only Fernando, C.J., concurs and adds a brief statement on the rights of labor entitled
possession or means of livelihood. Therefore, he should be protected against to full respect.
any arbitrary and unjust deprivation of his job. (See Bondoc v. People’s Bank Teehankee, J., files a brief dissent.
and Trust Company, 103 SCRA 599) Makasiar and Aquino, JJ., in the result.
De Castro, J., on leave.
As to the contempt charges, we note that the Order of this Court dated October Vasquez, J., took no part.
21, 1980 allowed "petitioners-intervenors" meaning KAMADA workers to work
at the South Harbor pending resolution of this case, "the order of respondent
judge xxx as well as the implementing letter of Philippine Ports Authority xxx to The Lawphil Project - Arellano Law Foundation
the contrary notwithstanding." It is not clear from said orders that the
petitioners who are stevedoring operators and contactors were also specifically
included. There was no mention of them being included and allowed with
KAMADA workers to resume operations at the South Harbor. The petitioners
read into the order something which was not there. The only clear import of
FERNANDO, C.J.,concurring:
the Order was that KAMADA workers must be allowed to work notwithstanding
any contrary provisions in the Management Contract, a situation brought about
by the lifting of the restraining orders, the denial of the petition for preliminary I concur in full with the learned and exhaustive opinion of Justice Gutierrez, Jr.
injunction, and the implementing letter of PPA. It is a settled rule that a party it is precisely because of its thoroughness embodied to the full respect that
cannot be punished for contempt unless the act which is forbidden or required must be accorded the constitutional rights of laborers belonging to other labor
to be done is clearly and exactly defined, so that there can be no reasonable organizations, as they could be affected by the contract between the Philippine
doubt or uncertainty as to what specific act or thing is forbidden or required. Ports Authority and the Ocean Terminal Services, Inc. the Court finds "PPA-OTSI
(Lee Yick Hon v. Collector of Customs, 41 Phil. 548, citing U.S. v. Achi-son, etc. Management Contract executed on June 27, 1980, valid and devoid of any
R. Co., 146 Fed. 176, 183; 13 CJ 15) constitutional or legal infirmity." 1

WHEREFORE, the petitions in G.R. No. 54958 and G.R. No. 54966 are hereby
DISMISSED for lack of merit. The respondents are, however, directed to comply
with the guidelines in the above decision on the absorption of bonafide
stevedores and as thus modifies, the temporary restraining order dated
October 21, 1980 is made PERMANENT. No costs.
SO ORDERED.
There is in addition, and this I commend, a reiteration of the Court that "the
guidelines earlier issued that no bona fide stevedore or worker should be
deprived of employment he used to enjoy simply because of the execution and
implementation of the disputed Management Contract. This absorption of
bona fide workers is an act of social justice. When a person had no property,
his job may possibly be his only possession or means of livelihood. Therefore,
he should be protected against any arbitrary and unjust deprivation of his
job." 2 That is as it should be. Anything less would be to fail to live up to what
the Constitution ordains.

141
Let me add that in so ruling, we reaffirm our resolution of December 9, 1980,
which granted a motion for clarification filed by petitioners-intervenors and
which insofar as pertinent reads as follows: "[Grant] the motion for clarification
by petitioners-intervenors issuing a resolution previously released, the
pertinent portion of which reads, for while the order of October 21, 1980 is on
its face quite definite as to what it purports to require, this resolution may
remove any doubt as to its purpose and intent, thus assuring the utmost fidelity
in its compliance. The order requires and mandates that all workers
represented by said petitioners-intervenors can continue rendering
stevedoring services performed by them on foreign vessel, in Manila South
Harbor before the execution of the exclusive stevedoring contract of June 27,
1980, until further orders of the Court, without any reference to any particular
vessel, the decisive factor being the shipping lines involved and the fact that
they were at that time rendering stevedoring services, irrespective of the labor
unions to which they are affiliated.’" 3
I dissent on the ground that the Court’s majority judgment has prematurely pre-
judged in this special civil action of certiorari, the serious and substantive
questions raised by petitioners in their nullification of the exclusive stevedoring
contract granted by PPA to OTSI which they assert to have been executed not
in the public interest and in confiscation of the established businesses of
petitioners and their right to equal protection of the law. These serious
questions involve factual questions which involve presentation and evaluation
of evidence and determination of the facts and figures, which seem to have
been preempted and foreclosed by the Court’s majority judgment-when all that
is before us in this special action is whether or not respondent judge acted with
grave abuse of discretion in lifting the temporary restraining order he had
previously issued against the implementation of the questioned exclusive
stevedoring contract. I reserve the right to file an extended dissenting opinion.

It bears repeating that such resolution requires and mandates that the rights of
the workers represented by petitioners-intervenors, the Katipunan ng mga
Manggagawa sa Daungan (KAMADA), a labor federation and its thirteen
member labor organizations, would not in any way be affected by such
contract. They can continue rendering stevedoring contract on June 27, 1980,
"until further orders of the Court, without any reference to any particular
vessel, the decisive factor being the shipping lines involved and the fact that 15) [G.R. No. 145742. July 14, 2005]
they were at that time rendering stevedoring services, irrespective of the labor
unions to which they are affiliated." 4
THE PHILIPPINE PORTS AUTHORITY, represented by its GENERAL MANAGER JUAN
So it must be. Only thus may the constitutional rights of labor to state
O. PENA, petitioner, vs. CIPRES STEVEDORING & ARRASTRE,
protection and social justice be accorded full respect.
INC., respondent.
Let me express anew my full concurrence with the scholarly opinion of Justice
DECISION
Gutierrez, Jr.
CHICO-NAZARIO, J.:

TEEHANKEE, J., dissenting:

142
 This is a petition for review on certiorari of the Decision[1] of the Court of
Appeals in CA-G.R. SP No. 59553 entitled, Cipres Stevedoring and Arrastre, Inc.
(CISAI) v. The Honorable Alvin L. Tan in his capacity as Presiding Judge, Regional
Trial Court (RTC), Br. 44, Dumaguete City, Philippine Ports Authority (PPA), Juan
Pea[2] & Benjamin Cecilio. Said decision declared as null and void the Order
dated 31 May 2000[3] of Judge Tan and directed the court a quo to issue a writ
of preliminary injunction enjoining petitioner from conducting the scheduled
public bidding of cargo handling operations in the port of Dumaguete City until
the termination of the main case.
The facts follow.
Petitioner PPA is a government entity created by virtue of Presidential
Decree (P.D.) No. 857 and is tasked to implement an integrated program for the
planning, development, financing, and operation of ports and port districts in
the country.[4]
Respondent CISAI is a domestic corporation primarily engaged in
stevedoring, arrastre, and porterage business, including cargo handling and
hauling services, in the province of Negros Oriental and in the cities of
Dumaguete and Bais. Since the commencement of its corporate existence in
1976, respondent had been granted permits of varied durations to operate the
cargo handling operations in Dumaguete City. In 1991, petitioner awarded an
eight-year contract[5] to respondent allowing the latter to pursue its business
endeavor in the port of Dumaguete City. This contract expired on 31 December
1998.
At about the time respondent was awarded an eight-year contract in 1991
or, on 12 June 1990, PPA Administrative Order No. 03-90 (PPA AO No. 03-90)
dated 14 May 1990 took effect.[6] This administrative order contained the
guidelines and procedures in the selection and award of cargo handling
contracts in all government ports as well as cargo handling services that would
be turned over by petitioner to the private sector. Section 2 of said
administrative order states:
Section 2. Statement of Policies
143
As a general rule, cargo handling services in all government ports shall be
awarded through the system of public bidding, except in the following cases:
2.1 Cargo handling contractors in ports with existing or expired
contracts whose performance is satisfactory shall be granted
renewal of their contracts.
2.2 Cargo handling operators issued one-year permits and have
already been in operation for at least six (6) months prior to
the effectivity of this Order shall be audited, and if found
satisfactory, awarded contracts.
2.3 Cargo handling services in ports with low cargo volume and
where handling operations are primarily manual.[7]
On 29 May 1996, a Memorandum of Understanding (MOU)[8] was entered
into among the National Union of Portworkers of the Philippines/Trade Union
Congress of the Philippines,[9]the Department of Transportation and
Communications,[10] the PPA,[11] the Department of Labor and Employment
(DOLE),[12] and the Philippine Chamber of Arrastre and Stevedoring Operators
(PCASO)[13] relative to the nationwide protests then being conducted by port
workers. Among the items agreed upon by the parties to the MOU were:
3. The DOTC Secretary shall immediately create a tripartite oversight
committee to review, assess and evaluate current and future
issuances pertaining to Cargo Handling contracts, portworkers
contracts with employers, and the like. The oversight committee
shall be composed of equal representatives from the
portworkers, the cargo handling operators and the government
including the PPA and the DOTC Undersecretary who shall act as
Chairman.
4. Henceforth, all expiring Cargo Handling contracts shall be reviewed
by the oversight committee referred to in paragraph 3 above for
recommendation to the PPA Board of Directors as to whether the
 same shall be terminated and subjected to public bidding, or as
may be authorized upon consideration of paragraph 2 hereof.[14]
Following the expiration of its contract for cargo handling, respondent was
able to continue with its business by virtue of hold-over permits given by
petitioner. The first of these permits expired on 17 January 2000[15] and the last
was valid only until 18 April 2000.[16] While respondents second hold-over
permit was still in effect, petitioner, through its General Manager Juan O. Pea,
issued PPA AO No. 03-2000[17] dated 15 February 2000 which amended by
substitution PPA AO No. 03-90. PPA AO No. 03-2000 expressly provides that all
contract for cargo handling services of more than three (3) years shall be
awarded through public bidding. With respect to cargo handling permits for a
period of three (3) years and less in ports where the average yearly cargo
throughout for the last five (5) years did not surpass 30,000 metric tons and
where the operations are mainly manual, the same shall be awarded through
comparative evaluation.
Pursuant to PPA AO No. 03-2000, petitioner set the deadline for the
submission of the technical and financial bids for the port of Dumaguete City at
12:00 noon of 05 July 2000; the opening of the technical bids on 05 July 2000
at 1:00 p.m.; and the dropping of the financial bids on 28 July 2000 at 1:00 p.m.
Contending that this action on the part of petitioner was in derogation of its
vested right over the operation of cargo handling enterprise in Dumaguete City,
respondent initiated an action for specific performance, injunction with
application for preliminary mandatory injunction and temporary restraining
order before the RTC of Dumaguete City.[18] This civil action was filed on 31
March 2000 and was raffled off to Branch 44 of said court wherein it was
docketed as Civil Case No. 12688.
Respondent alleged in its complaint that PPA AO No. 03-90 explicitly
provides that cargo handling contractors with existing or expired contracts but
were able to obtain a satisfactory performance rating were entitled to a
renewal of their respective cargo handling contracts with petitioner; thus, as
respondent was given a rating of very satisfactory[19] in 1998, it follows that its
cargo handling agreement should have been renewed after its expiration.
144
Respondent likewise claimed that the approval and implementation of PPA AO
No. 03-2000 was plainly arbitrary as said administrative order was:
19.1 Obviously unfair to plaintiff and port operators affected
because it is an afterthought. It came about after
PCASO[20] wrote a letter dated 04 February 2000
demanding for the renewal of the contract of the members
with a rating of Satisfactory
19.2 Obviously prejudicial to the right to renew the contract vested
upon plaintiff (respondent herein) by virtue of
Administrative Order No. 03-90 which was in force and
effect during the period of contractual relations between
defendant PPA and plaintiff.
19.3 Obviously repugnant to the Memorandum of Understanding
dated May 29, 1996, which has the force of law between
the contracting parties.
19.4 Obviously designed to justify non-compliance of a legal
obligation created under Administrative Order No. 03-90.
19.5 A scheme to accommodate political pressures.
19.6 Arbitrary because it did not treat all port operators alike. For
instance the Asian Terminals, Inc., the operator of South
Harbor, had a negotiated Contract.[21]
In addition, respondent stated in its complaint that in the event the
bidding would take place as scheduled, a substantial number of workers in the
port of Dumaguete City faced the risk of displacement. Moreover, the
possibility existed that the contract for cargo handling in Dumaguete City would
be awarded to an incompetent and inexperienced participant in the bidding
process unlike respondent which had already invested substantial capital in its
operations in the port of said city. To further support its claim for a preliminary
mandatory injunction, respondent alleged that a fellow PCASO member, Vitas
Port Arrastre Service Corporation, operating at Pier 18, Vitas, Tondo, Manila,
successfully obtained a writ of preliminary injunction from the RTC, Branch 46,
Manila.[22]
Immediately after the filing of respondents complaint, the RTC, Branch 44
of Dumaguete City, issued an order[23] granting respondents prayer for a
temporary restraining order. The dispositive portion of the order reads:
WHEREFORE, premises considered, and considering the urgent nature of the
plaintiffs complaint, that serious and irreparable damage or injury would be
suffered by the plaintiff unless said acts of the defendants complained of, is
restrained; said defendants Philippine Ports Authority, Manila, Juan O. Pea,
Benjamin Cecilio, their agents, representatives or persons acting in their
behalves, are hereby ordered to cease and desist from further conducting the
scheduled public bidding and awards on April 7, 2000, and April 10, 2000,
respectively within twenty (20) days from receipt hereof[24]
Petitioner thereafter filed a manifestation with urgent motion for
reconsideration[25] to the aforesaid order of the trial court. Petitioner argued
that the court a quo did not have the requisite jurisdiction to issue the assailed
temporary restraining order; that respondent was estopped from seeking
refuge from the court as it had already expressed its intention to join the
bidding process involving the operation of the cargo handling operations in the
port of Dumaguete City; that respondent failed to exhaust administrative
remedies by not seeking relief from petitioner prior to initiating this action
before the court; and that it was in the best interest of the public if the bidding
process proceeds as scheduled because of the internal squabbling taking place
within respondent corporation which could affect the quality of its service. This
motion was denied in the order of the court a quo dated 24 April 2000.[26]
Petitioner seasonably sought the reconsideration[27] of the trial courts
order of 24 April 2000 this time arguing that:
1. PRESIDENTIAL DECREE NO. 1818 PROHIBITS COURTS FROM
ISSUING THE INJUNCTIVE WRIT IN ANY CASE, DISPUTE OR
CONTROVERSY INVOLVING STEVEDORING AND ARRASTRE
CONTRACTS.
145
2. THE ORDER DATED APRIL 24, 2000 ADJUDICATES THE MERITS OF
THE COMPLAINT EVEN BEFORE THE PARTIES ARE HEARD.
3. THE ISSUANCE OF THE ORDER DATED APRIL 24, 2000 VIOLATES
THE LAW IN CONTRACT MAKING.
4. THE ISSUANCE OF THE ORDER DATED APRIL 24, 2000 IS BEYOND
THE JURISDICTION OF THE HONORABLE COURT.
5. THE ISSUANCE OF THE ORDER DATED APRIL 24, 2000 IS AGAINST
PUBLIC INTEREST.
6. THE ISSUANCE OF THE ORDER DATED APRIL 24, 2000 IS VIOLATION
OF THE 1997 RULES ON CIVIL PROCEDURE.
7. THE ISSUANCE OF THE ORDER DATED APRIL 24, 2000 IS VIOLATIVE
OF DUE PROCESS.
8. THE ISSUANCE OF THE ORDER DATED APRIL 24, 2000 IS
UNSUPPORTED BY THE FACTS OF THIS CASE.[28]
In its 31 May 2000 Order, the trial court set aside the injunctive writ it
previously issued to give way to the pronouncements of P.D. No. 1818 as the
function of the PPA is vested with public interest.[29]
It was thereafter the turn of respondent to file its motion for
reconsideration[30] of the Order of the trial court but the court a quo stood firm
on its Order setting aside the injunctive writ it issued.[31] From this adverse
ruling, respondent filed a petition for certiorari under Rule 65 before the Court
of Appeals. In said petition, respondent maintained that P.D. No. 1818 did not
cover the restraining order and preliminary injunction formerly issued by the
RTC, Branch 44, Dumaguete City. According to respondent, as there was no
assurance that the would-be winner of the bidding process possessed the
capacity to operate the cargo handling services in Dumaguete City, there would
have been a cessation of the cargo handling operations in the port of said city
following the expiration of respondents second hold-over permit. This,
respondent insisted, was not the situation contemplated by P.D. No. 1818
which was precisely issued to ensure that essential government projects such
as stevedoring and arrastre services would not be disrupted by the issuance of
a temporary restraining order. In this case, the restraining order and injunction
issued by the trial court ensured the continuity of the cargo handling operations
in Dumaguete City. Respondent further argued that as what is involved in this
case is petitioners failure to comply with its obligation under PPA AO No. 03-90
and the validity of PPA AO No. 03-2000, petitioner could not invoke P.D. No.
1818 which should only apply to matters involving the exercise of discretion by
administrative agencies.[32]
Respondent likewise claimed that the pre-qualification phase of the
bidding procedure was attended by the following irregularities:
1. Respondents (petitioner herein), then defendants (in Civil Case No. 12688),
set October 15, 1999 as the deadline for the submission of the pre-
qualification documents of prospective bidders. However, they pre-qualified
DUMAGUETE KING PORTS & ILOILO QUEEN PORTS INC. (DUKIQ), which
incidentally tried to intervene in this case, on April 3, 1999, which was not a
juridical entity as of said date. It should be pointed out that it was only
registered with the Securities and Exchange Commission (SEC) on April 4,
(2000) This means that DUKIQ became only (sic) a juridical entity only three
days before the scheduled dropping of the bids on April 7, 2000 and seven (7)
days before the supposed opening of the bids on April 10, 2000. This is
certainly irregular and only bolsters petitioners (respondent herein)
apprehensions that there exists a preferred bidder. Moreover, DUKIQ was
only issued a Mayors Permit on April 18, 2000 This is not also in accordance
with the rules of the bidding.
2. The composition of the Pre-qualification, Bids, Awards Committee (PBAC) as
composed by the respondents is not in conformity with AO 03-90.
3. PPA Administrative Orders 03-90 and 03-2000 emanated from the same
PPA Board Resolution No. 912. It should be pointed out that AO 03-2000 was
issued arbitrarily for the purpose of evading the contractual obligation of
respondents to renew the contracts of those cargo handling operators which
obtained a satisfactory performance rating from the PPA. In other words, the
146
most glaring irregularity committed by respondents here is the issuance of AO
03-2000, which is diametrically opposed to and inconsistent with AO 03-90
and PPA Board Resolution 912. This is not to mention that said AO 03-2000
will also deprive cargo handling operators in general, and CISAI, in particular,
of their proprietary rights.[33]
Further, respondent insisted that on the basis of the clear language of PPA
AO No. 03-90, it was entitled to the renewal of its cargo handling agreement as
it was able to earn a very satisfactory performance rating. The implementation,
therefore, of PPA AO No. 03-2000 transgressed the constitutional guarantee
against non-impairment of contract and ignored respondents vested right to
the renewal of its cargo handling pact.
Relying on respondents allegation as regards the purported irregularities
which occurred during the pre-qualification part of the bidding process, the
Court of Appeals nullified the 31 May 2000 Order of the trial court. The decretal
portion of the appellate courts decision, now assailed before us, states:
WHEREFORE, premises considered the petition is GRANTED; and the assailed
31 May 2000 Order of the respondent Judge is hereby declared NULL and
VOID. In lieu of the same, the Court orders:
1. Subject to the posting of an injunction bond by herein petitioner
in the amount to be determined by the court a quo, respondent
Court is directed to ISSUE a Writ of Preliminary Injunction;
2. Respondent Philippine Ports Authority to (DESIST) from conducting
the scheduled public bidding of cargo handling operations in the
port of Dumaguete City, effective until and after the case a
quo shall have been finally decided.[34]
Petitioner is now before us seeking the reversal of the aforementioned
decision of the appellate court on the following grounds:
IT WAS GRAVE ERROR FOR RESPONDENT COURT OF APPEALS [SECOND
DIVISION] TO ISSUE ITS QUESTIONED DECISION CONSIDERING THAT:
(i) P.D. NO. 1818, LATER AMENDED BY R.A. 8975 AND REITERATED IN
ADMINISTRATIVE CIRCULAR NO. 11.2000 OF THIS HONORABLE COURT, BANS
THE ISSUANCE OF WRITS OF PRELIMINARY PROHIBITORY INJUNCTIONS IN
CASES INVOLVING GOVERNMENT INFRASTRUCTURE PROJECTS AND SERVICE
CONTRACTS, WHICH INCLUDES (SIC) ARRASTRE AND STEVEDORING
CONTRACTS.
(ii) CISAI HAS NO CLEAR LEGAL RIGHT TO AN INJUNCTIVE WRIT. IT ACQUIRED
NO VESTED RIGHTS TO ARRASTRE AND STEVEDORING OPERATIONS AT THE
PORT OF DUMAGUETE CITY AS ITS HOLD-OVER CAPACITY COULD BE REVOKED
AT ANY GIVEN TIME.
(iii) CISAI CANNOT COMPEL PPA TO RENEW ITS CONTRACT FOR CARGO
HANDLING SERVICES.[35]
In our resolution of 12 November 2003, we granted petitioners prayer for
a temporary restraining order.[36]
Petitioner insists that the decision of the Court of Appeals failed to take
into consideration the unequivocal language of Republic Act No. 8975 which
amended P.D. No. 1818.
The main provision of P.D. No. 1818 provides:
SECTION 1. No court in the Philippines shall have jurisdiction to issue any
restraining order, preliminary injunction, or preliminary mandatory injunction
in any case, dispute, or controversy involving an infrastructure project, or a
mining, fishery, forest or other natural resource development project of the
government, or any public utility operated by the government, including
among others public utilities for the transport of the goods or commodities,
stevedoring and arrastre contracts, to prohibit any person or persons, entity
or government official from proceeding with, or continuing the execution or
implementation of any such project, or the operation of such public utility, or
pursuing any lawful activity necessary for such execution, implementation or
operation.
147
On the other hand, the pertinent portion of Rep. Act No. 8975 states:
SEC. 3. Prohibition on the Issuance of Temporary Restraining Orders,
Preliminary Injunctions and Preliminary Mandatory Injunctions. No court,
except the Supreme Court, shall issue any temporary restraining order,
preliminary injunction or preliminary mandatory injunction against the
government, or any of its subdivision, officials or any person or entity,
whether public or private, acting under the governments direction, to restrain,
prohibit or compel the following acts:
(b) Bidding or awarding of contract/project of the national
government as defined under Section 2 hereof; . . .[37]
Concededly, P.D. No. 1818 which was the law in force at the time of the
institution of this case, applies to the operation of arrastre and stevedoring
contracts such as the one subject of the present case. Notably, the Court of
Appeals ruling was based solely on the perceived irregularities which occurred
during the pre-qualification phase of the bidding process. The veracity of these
claimed irregularities, however, are best left for the consideration of the trial
court which has yet to rule on the merits, if there be any, of the main case.
More than this, as the issue presented before us is whether the appellate
court erred in issuing the writ of preliminary injunction, we hew to the general
principles on this subject.
A preliminary injunction is an order granted at any stage of an action prior
to judgment of final order, requiring a party, court, agency, or person to refrain
from a particular act or acts.[38]It is a preservative remedy to ensure the
protection of a partys substantive rights or interests pending the final judgment
in the principal action. A plea for an injunctive writ lies upon the existence of a
claimed emergency or extraordinary situation which should be avoided for
otherwise, the outcome of a litigation would be useless as far as the party
applying for the writ is concerned.
At times referred to as the Strong Arm of Equity,[39] we have consistently
ruled that there is no power the exercise of which is more delicate and which
calls for greater circumspection than the issuance of an injunction.[40] It should
only be extended in cases of great injury where courts of law cannot afford an
adequate or commensurate remedy in damages;[41] in cases of extreme
urgency; where the right is very clear; where considerations of relative
inconvenience bear strongly in complainants favor; where there is a willful and
unlawful invasion of plaintiffs right against his protest and remonstrance, the
injury being a continuing one, and where the effect of the mandatory injunction
is rather to reestablish and maintain a preexisting continuing relation between
the parties, recently and arbitrarily interrupted by the defendant, than to
establish a new relation.[42]
For the writ to issue, two requisites must be present, namely, the
existence of the right to be protected, and that the facts against which the
injunction is to be directed are violative of said right.[43] It is necessary that one
must show an unquestionable right over the premises.[44]
Petitioner maintains that respondents claim of vested rights or proprietary
rights over the cargo handling services at the port of Dumaguete City is
baseless. It insists that the contract for cargo handling operations it formerly
had with respondent did not amount to a property right; instead, it should be
considered as a mere privilege which can be recalled by the granting authority
at anytime when public welfare so requires.
On the other hand, respondent anchors its application for preliminary
injunction on its alleged vested right over the cargo handling services in the port
of Dumaguete City pursuant to PPA AO No. 03-90. It insists that under this
administrative order, petitioner was bound to renew their cargo handling
services agreement as it was able to meet and, in fact, was able to surpass the
satisfactory performance rating requirement contained therein. Further,
respondent posits the argument that PPA AO No. 03-2000 was formulated by
petitioner as a device by which it could avoid its obligation under the
superseded administrative order. Respondent, therefore, concludes that PPA
AO No. 03-2000 contravenes the constitutional precept that no law impairing
obligations of contracts shall be passed.[45]
148
We agree with petitioner and hold that respondent was not able to
establish its claimed right over the renewal of its cargo handling agreement with
the former.
To begin with, stevedoring services are imbued with public interest and
subject to the states police power as we have declared in Anglo-Fil Trading
Corporation v. Lazaro,[46] to wit:
The Manila South Harbor is public property owned by the State. The
operations of this premiere port of the country, including stevedoring work,
are affected with public interest. Stevedoring services are subject to
regulation and control for the public good and in the interest of general
welfare.[47]
As police power is so far-reaching in scope, that it has become almost
impossible to limit its sweep,[48] whatever proprietary right that respondent
may have acquired must necessarily give way to a valid exercise of police power,
thus:[49]
4. In the interplay between such a fundamental right and police power,
especially so where the assailed governmental action deals with the use of
ones property, the latter is accorded much leeway. That is settled law[50]
In connection with the foregoing, we likewise find no arbitrariness nor
irregularity on the part of petitioner as far as PPA AO No. 03-2000 is concerned.
It is worthwhile to remind respondent that petitioner was created for the
purpose of, among other things, promoting the growth of regional port bodies.
In furtherance of this objective, petitioner is empowered, after consultation
with relevant government agencies, to make port regulations particularly to
make rules or regulation for the planning, development, construction,
maintenance, control, supervision and management of any port or port district
in the country.[51] With this mandate, the decision to bid out the cargo holding
services in the ports around the country is properly within the province and
discretion of petitioner which we cannot simply set aside absent grave abuse of
discretion on its part. The discretion to carry out this policy necessarily required
prior study and evaluation and this task is best left to the judgment of
petitioner. While there have been occasions when we have brushed aside
actions on the part of administrative agencies for being beyond the scope of
their authority, the situation at the case at bar does not fall within this
exception.
As for respondents claim that PPA AO No. 03-2000 violated the
constitutional provision of non-impairment of contract, suffice it to state here
that all contracts are subject to the overriding demands, needs, and interests
of the greater number as the State may determine in the legitimate exercise of
its police power.[52]
Finally, it is settled that the sole object of a preliminary injunction, may it
be prohibitory or mandatory, is to preserve the status quo until the merits of
the case can be heard and the final judgment rendered.[53] The status quo is the
last actual peaceable uncontested status which preceded the controversy.
In the case at bar, respondent sought the issuance of a writ for preliminary
injunction in order to prevent the cessation of cargo handling services in the
port of Dumaguete City to the detriment and prejudice of the public, shipper,
consignees and port workers.[54] However, the factual backdrop of this case
establishes that respondents eight-year contract for cargo handling was already
terminated and its continued operation in the port of Dumaguete City was
merely by virtue of a second hold-over permit granted by petitioner through a
letter dated 27 December 1999,[55] the pertinent portion of which reads:
This HOP[56] extension shall be valid from January 18, 2000 up to April 18,
2000, unless sooner withdrawn or cancelled or upon the award of the cargo
handling contract thru public bidding.[57]
premises of the port of Dumaguete City may be terminated. Unlike the contract
for cargo handling services previously entered into by petitioner and
respondent, whose terms and conditions were agreed upon by the parties
herein and which clearly provided for a specific period of effectivity as well as a
stipulation regarding the notice of violation, the hold-over permit was
unilaterally granted by petitioner pursuant to its authority under the law.
Based on the foregoing, it is clear that at the time of the institution of this
suit, respondent no longer possessed any contract for its continued operation
in Dumaguete City and its stay in the port of said city was by virtue of a mere
permit extended by petitioner revocable at anytime by the latter. Obviously,
the writ of preliminary injunction issued by the Court of Appeals granted
respondent the authority to maintain its cargo handling services despite the
absence of a valid cargo handling agreement between respondent and
petitioner. For this reason, we hold that the Court of Appeals erred in ordering
the court a quo to issue the writ of preliminary injunction in favor of
respondent.
WHEREFORE, premises considered, the present petition is
GRANTED and the Decision of the Court of Appeals dated 24 October 2000 is
hereby REVERSED and SET ASIDE. The 31 May 2000 Order of the Regional Trial
Court, Branch 44, Dumaguete City, setting aside the injuctive relief it previously
issued is hereby REINSTATED and the temporary restraining order We issued in
our Resolution dated 12 November 2003, enjoining, ordering, commanding and
directing respondent from implementing the aforesaid decision of the Court of
Appeals, is hereby made PERMANENT. No costs.
SO ORDERED.

By its nature, the hold-over permit was merely temporary in nature and 16 )[G.R. No. 157036. June 9, 2004]
may be revoked by petitioner at anytime. As we declared in the case of Anglo-
Fil Trading Corporation,[58] hold-over permits are merely temporary and subject
to the policy and guidelines as may be implemented by petitioner. The
temporary nature of the hold-over permit should have served as adequate
notice to respondent that, at any time, its authority to remain within the

149
 FRANCISCO I. CHAVEZ, petitioner, vs. HON. ALBERTO G. ROMULO, IN HIS
CAPACITY AS EXECUTIVE SECRETARY; DIRECTOR GENERAL HERMOGENES E.
EBDANE, JR., IN HIS CAPACITY AS THE CHIEF OF THE PNP, et al., respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
The right of individuals to bear arms is not absolute, but is subject to
regulation. The maintenance of peace and order[1] and the protection of the
people against violence are constitutional duties of the State, and the right to
bear arms is to be construed in connection and in harmony with these
constitutional duties.
Before us is a petition for prohibition and injunction seeking to enjoin the
implementation of the Guidelines in the Implementation of the Ban on the
Carrying of Firearms Outside of Residence[2] (Guidelines) issued on January 31,
2003, by respondent Hermogenes E. Ebdane, Jr., Chief of the Philippine
National Police (PNP).
The facts are undisputed:
In January 2003, President Gloria Macapagal-Arroyo delivered a speech
before the members of the PNP stressing the need for a nationwide gun ban in
all public places to avert the rising crime incidents. She directed the then PNP
Chief, respondent Ebdane, to suspend the issuance of Permits to Carry Firearms
Outside of Residence (PTCFOR), thus:
THERE IS ALSO NEED TO FOCUS ON THE HIGH PROFILE CRIMES THAT TEND TO
DISTURB THE PSYCHOLOGICAL PERIMETERS OF THE COMMUNITY THE LATEST
BEING THE KILLING OF FORMER NPA LEADER ROLLY KINTANAR. I UNDERSTAND
WE ALREADY HAVE THE IDENTITY OF THE CULPRIT. LET US BRING THEM TO THE
BAR OF JUSTICE.
150
THE NPA WILL FIND IT MORE DIFFICULT TO CARRY OUT THEIR PLOTS IF OUR
LAW ENFORCEMENT AGENCIES CAN RID THEMSELVES OF RASCALS IN
UNIFORM, AND ALSO IF WE ENFORCE A GUN BAN IN PUBLIC PLACES.
THUS, I AM DIRECTING THE PNP CHIEF TO SUSPEND INDEFINITELY THE ISSUANCE
OF PERMIT TO CARRY FIREARMS IN PUBLIC PLACES. THE ISSUANCE OF PERMITS
WILL NOW BE LIMITED ONLY TO OWNERSHIP AND POSSESSION OF GUNS AND
NOT TO CARRYING THEM IN PUBLIC PLACES. FROM NOW ON, ONLY THE
UNIFORMED MEN IN THE MILITARY AND AUTHORIZED LAW ENFORCEMENT
OFFICERS CAN CARRY FIREARMS IN PUBLIC PLACES, AND ONLY PURSUANT TO
EXISTING LAW.CIVILIAN OWNERS MAY NO LONGER BRING THEIR FIREARMS
OUTSIDE THEIR RESIDENCES. THOSE WHO WANT TO USE THEIR GUNS FOR
TARGET PRACTICE WILL BE GIVEN SPECIAL AND TEMPORARY PERMITS FROM
TIME TO TIME ONLY FOR THAT PURPOSE. AND THEY MAY NOT LOAD THEIR GUNS
WITH BULLETS UNTIL THEY ARE IN THE PREMISES OF THE FIRING RANGE.
WE CANNOT DISREGARD THE PARAMOUNT NEED FOR LAW AND ORDER. JUST
AS WE CANNOT BE HEEDLESS OF OUR PEOPLES ASPIRATIONS FOR PEACE.
Acting on President Arroyos directive, respondent Ebdane issued the
assailed Guidelines quoted as follows:
TO : All Concerned
FROM : Chief, PNP
SUBJECT : Guidelines in the Implementation of the Ban on the Carrying
of Firearms Outside of Residence.
DATE : January 31, 2003
1. Reference: PD 1866 dated June 29, 1983 and its Implementing
Rules and Regulations.
2. General:
The possession and carrying of firearms outside of residence
is a privilege granted by the State to its citizens for their
individual protection against all threats of lawlessness and
security.
5. The following persons may be authorized to carry firearms outside
As a rule, persons who are lawful holders of firearms (regular
license, special permit, certificate of registration or MR) are
prohibited from carrying their firearms outside of residence.
However, the Chief, Philippine National Police may, in
meritorious cases as determined by him and under conditions
as he may impose, authorize such person or persons to carry
firearms outside of residence.
3. Purposes:
This Memorandum prescribes the guidelines in the
implementation of the ban on the carrying of firearms outside
of residence as provided for in the Implementing Rules and
Regulations, Presidential Decree No. 1866, dated June 29, 1983
and as directed by PGMA. It also prescribes the conditions,
requirements and procedures under which exemption from
the ban may be granted.
4. Specific Instructions on the Ban on the Carrying of Firearms:
a. All PTCFOR are hereby revoked. Authorized holders of
licensed firearms covered with valid PTCFOR may re-apply
for a new PTCFOR in accordance with the conditions
hereinafter prescribed.
b. All holders of licensed or government firearms are hereby
prohibited from carrying their firearms outside their
151
residence except those covered with mission/letter orders
and duty detail orders issued by competent authority
pursuant to Section 5, IRR, PD 1866, provided, that the said
exception shall pertain only to organic and regular
employees.
of residence.
a. All persons whose application for a new PTCFOR has been
approved, provided, that the persons and security of
those so authorized are under actual threat, or by the
nature of their position, occupation and profession are
under imminent danger.
b. All organic and regular employees with Mission/Letter
Orders granted by their respective agencies so authorized
pursuant to Section 5, IRR, PD 1866, provided, that such
Mission/Letter Orders is valid only for the duration of the
official mission which in no case shall be more than ten
(10) days.
c. All guards covered with Duty Detail Orders granted by their
respective security agencies so authorized pursuant to
Section 4, IRR, PD 1866, provided, that such DDO shall in
no case exceed 24-hour duration.
d. Members of duly recognized Gun Clubs issued Permit to
Transport (PTT) by the PNP for purposes of practice and
competition, provided, that such firearms while in transit
must not be loaded with ammunition and secured in an
appropriate box or case detached from the person.
e. Authorized members of the Diplomatic Corps.
6. Requirements for issuance of new PTCFOR:
a. Written request by the applicant addressed to Chief, PNP
stating his qualification to possess firearm and the
reasons why he needs to carry firearm outside of
residence.
b. Xerox copy of current firearm license duly authenticated by
Records Branch, FED;
c. Proof of actual threat, the details of which should be issued
by the Chief of Police/Provincial or City Directors and duly
validated by C, RIID;
d. Copy of Drug Test Clearance, duly authenticated by the
Drug Testing Center, if photocopied;
e. Copy of DI/ RIID clearance, duly authenticated by ODI/RIID,
if photocopied;
f. Copy of Neuro-Psychiatric Clearance duly authenticated by
NP Testing Center, if photocopied;
g. Copy of Certificate of Attendance to a Gun Safety Seminar,
duly validated by Chief, Operations Branch, FED;
h. NBI Clearance;
8. Restrictions in the Carrying of Firearms:
i. Two (2) ID pictures (2 x 2) taken not earlier than one (1) year
from date of filing of application; and
j. Proof of Payment
a. Applications may be filed directly to the Office of the
PTCFOR Secretariat in Camp Crame. In the provinces, the
applications may also be submitted to the Police Regional
Offices (PROs) and Provincial/City Police Offices (P/CPOs)
for initial processing before they are forwarded to the
office of the PTCFOR Secretariat. The processors, after
ascertaining that the documentary requirements are in
order, shall issue the Order of Payment (OP) indicating the
amount of fees payable by the applicant, who in turn shall
pay the fees to the Land Bank.
b. Applications, which are duly processed and prepared in
accordance with existing rules and regulations, shall be
forwarded to the OCPNP for approval.
c. Upon approval of the application, OCPNP will issue PTCFOR
valid for one (1) year from date of issue.
d. Applications for renewal of PTCFOR shall be processed in
accordance with the provisions of par. 6 above.
e. Application for possession and carrying of firearms by
diplomats in the Philippines shall be processed in
accordance with NHQ PNP Memo dated September 25,
2000, with Subj: Possession and Carrying of Firearms by
Diplomats in the Philippines.
a. The firearm must not be displayed or exposed to public
view, except those authorized in uniform and in the
performance of their official duties.

7. Procedures:

152
 b. The firearm shall not be brought inside public drinking and
amusement places, and all other commercial or public
establishments.
Petitioner Francisco I. Chavez, a licensed gun owner to whom a PTCFOR
has been issued, requested the Department of Interior and Local Government
(DILG) to reconsider the implementation of the assailed Guidelines. However,
his request was denied. Thus, he filed the present petition impleading public
respondents Ebdane, as Chief of PNP; Alberto G. Romulo, as Executive
Secretary; and Gerry L. Barias, as Chief of the PNP-Firearms and Explosives
Division. He anchored his petition on the following grounds:
I THE AMENDMENTS THERETO, THE PNP CHIEF STILL HAS NO POWER OR
THE PRESIDENT HAS NO POWER OR AUTHORITY MUCH LESS BY A MERE SPEECH
TO ALTER, MODIFY OR AMEND THE LAW ON FIREARMS BY IMPOSING A GUN
BAN AND CANCELING EXISTING PERMITS FOR GUNS TO BE CARRIED OUTSIDE
RESIDENCES.
II
OFFICIALLY, THERE IS NO PRESIDENTIAL ISSUANCE ON THE GUN BAN; THE
PRESIDENTIAL SPEECH NEVER INVOKED POLICE POWER TO JUSTIFY THE GUN
BAN; THE PRESIDENTS VERBAL DECLARATION ON GUN BAN VIOLATED THE
PEOPLES RIGHT TO PROTECT LIFE AND THEIR PROPERTY RIGHT TO CARRY
FIREARMS.
III
THE PNP CHIEF HAS NO POWER OR AUTHORITY TO ISSUE THE QUESTIONED
GUIDELINES BECAUSE:
1) THERE IS NO LAW, STATUTE OR EXECUTIVE ORDER WHICH GRANTS THE PNP
CHIEF THE AUTHORITY TO PROMULGATE THE PNP GUIDELINES.
153
2) THE IMPLEMENTING RULES AND REGULATIONS OF PD 1866 CANNOT BE THE
SUBJECT OF ANOTHER SET OF IMPLEMENTING GUIDELINES.
3) THE PRESIDENTS SPEECH CANNOT BE A BASIS FOR THE PROMULGATION OF
IMPLEMENTNG GUIDELINES ON THE GUN BAN.
IV
ASSUMING ARGUENDO, THAT THE PNP GUIDELINES IMPLEMENT PD 1866, AND
AUTHORITY TO ISSUE THE SAME BECAUSE
1) PER SEC 6, RA 8294, WHICH AMENDS PD 1866, THE IRR SHALL BE
PROMULGATED JOINTLY BY THE DOJ AND THE DILG.
2) SEC. 8, PD 1866 STATES THAT THE IRR SHALL BE PROMULGATED BY THE
CHIEF OF THE PHILIPPINE CONSTABULARY.
V
THE PNP GUIDELINES VIOLATE THE DUE PROCESS CLAUSE OF THE
CONSTITUTION BECAUSE:
1) THE RIGHT TO OWN AND CARRY A FIREARM IS NECESSARILY INTERTWINED
WITH THE PEOPLES INHERENT RIGHT TO LIFE AND TO PROTECT LIFE. THUS, THE
PNP GUIDELINES DEPRIVE PETITIONER OF THIS RIGHT WITHOUT DUE PROCESS
OF LAW FOR:
A) THE PNP GUIDELINES DEPRIVE PETITIONER OF HIS MOST POTENT, IF NOT HIS
ONLY, MEANS TO DEFEND HIMSELF.
B) THE QUESTIONED GUIDELINES STRIPPED PETITIONER OF HIS MEANS OF
PROTECTION AGAINST CRIME DESPITE THE FACT THAT THE STATE COULD NOT
POSSIBLY PROTECT ITS CITIZENS DUE TO THE INADEQUACY AND INEFFICIENCY
OF THE POLICE FORCE.
2) THE OWNESHIP AND CARRYING OF FIREARMS ARE CONSTITUTIONALLY
PROTECTED PROPERTY RIGHTS WHICH CANNOT BE TAKEN AWAY WITHOUT
DUE PROCESS OF LAW AND WITHOUT JUST CAUSE.
VI
ASSUMING ARGUENDO, THAT THE PNP GUIDELINES WERE ISSUED IN THE
EXERCISE OF POLICE POWER, THE SAME IS AN INVALID EXERCISE THEREOF SINCE
THE MEANS USED THEREFOR ARE UNREASONABLE AND UNNCESSARY FOR THE
ACCOMPLISHMENT OF ITS PURPOSE TO DETER AND PREVENT CRIME THEREBY
BECOMING UNDULY OPPRESSIVE TO LAW-ABIDING GUN-OWNERS.
VII
THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND CONFISCATORY SINCE IT
REVOKED ALL EXISTING PERMITS TO CARRY WITHOUT, HOWEVER, REFUNDING
THE PAYMENT THE PNP RECEIVED FROM THOSE WHO ALREADY PAID
THEREFOR.
VIII
THE PNP GUIDELINES VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION BECAUSE THEY ARE DIRECTED AT AND OPPRESSIVE ONLY TO
LAW-ABIDING GUN OWNERS WHILE LEAVING OTHER GUN-OWNERS THE
LAWBREAKERS (KIDNAPPERS, ROBBERS, HOLD-UPPERS, MNLF, MILF, ABU
SAYYAF COLLECTIVELY, AND NPA) UNTOUCHED.
IX
154
THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND UNFAIR BECAUSE THEY
WERE IMPLEMENTED LONG BEFORE THEY WERE PUBLISHED.
X
THE PNP GUIDELINES ARE EFFECTIVELY AN EX POST FACTO LAW SINCE THEY
APPLY RETROACTIVELY AND PUNISH ALL THOSE WHO WERE ALREADY
GRANTED PERMITS TO CARRY OUTSIDE OF RESIDENCE LONG BEFORE THEIR
PROMULGATION.
Petitioners submissions may be synthesized into five (5) major issues:
First, whether respondent Ebdane is authorized to issue the assailed Guidelines;
Second, whether the citizens right to bear arms is a constitutional right?;
Third, whether the revocation of petitioners PTCFOR pursuant to the assailed
Guidelines is a violation of his right to property?;
Fourth, whether the issuance of the assailed Guidelines is a valid exercise of
police power?; and
Fifth, whether the assailed Guidelines constitute an ex post facto law?
The Solicitor General seeks the dismissal of the petition pursuant to the
doctrine of hierarchy of courts. Nonetheless, in refutation of petitioners
arguments, he contends that: (1) the PNP Chief is authorized to issue the
assailed Guidelines; (2) petitioner does not have a constitutional right to own
and carry firearms; (3) the assailed Guidelines do not violate the due process
clause of the Constitution; and (4) the assailed Guidelines do not constitute
an ex post facto law.
Initially, we must resolve the procedural barrier.
 On the alleged breach of the doctrine of hierarchy of courts, suffice it to
say that the doctrine is not an iron-clad dictum. In several instances where this
Court was confronted with cases of national interest and of serious
implications, it never hesitated to set aside the rule and proceed with the
judicial determination of the cases.[3] The case at bar is of similar import as it
involves the citizens right to bear arms.
I for a license to deal in firearms or to possess the same for personal protection,
Authority of the PNP Chief
Relying on the principle of separation of powers, petitioner argues that
only Congress can withhold his right to bear arms. In revoking all existing
PTCFOR, President Arroyo and respondent Ebdane transgressed the settled
principle and arrogated upon themselves a power they do not possess the
legislative power.
We are not persuaded.
It is true that under our constitutional system, the powers of government
are distributed among three coordinate and substantially independent
departments: the legislative, the executive and the judiciary. Each has exclusive
cognizance of the matters within its jurisdiction and is supreme within its own
sphere.[4]
Pertinently, the power to make laws the legislative power is vested in
Congress.[5] Congress may not escape its duties and responsibilities by
delegating that power to any other body or authority. Any attempt to abdicate
the power is unconstitutional and void, on the principle that delegata potestas
non potest delegari delegated power may not be delegated.[6]
The rule which forbids the delegation of legislative power, however, is not
absolute and inflexible. It admits of exceptions. An exception sanctioned by
immemorial practice permits the legislative body to delegate its licensing power
to certain persons, municipal corporations, towns, boards, councils,
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commissions, commissioners, auditors, bureaus and directors.[7] Such licensing
power includes the power to promulgate necessary rules and regulations.[8]
The evolution of our laws on firearms shows that since the early days of
our Republic, the legislatures tendency was always towards the delegation of
power. Act No. 1780,[9] delegated upon the Governor-General (now the
President) the authority (1) to approve or disapprove applications of any person
hunting and other lawful purposes; and (2) to revoke such license any
time.[10] Further, it authorized him to issue regulations which he may deem
necessary for the proper enforcement of the Act. [11] With the enactment of Act
No. 2711, the Revised Administrative Code of 1917, the laws on firearms were
integrated.[12] The Act retained the authority of the Governor General provided
in Act No. 1780. Subsequently, the growing complexity in the Office of the
Governor-General resulted in the delegation of his authority to the Chief of the
Constabulary. On January 21, 1919, Acting Governor-General Charles E. Yeater
issued Executive Order No. 8[13] authorizing and directing the Chief of
Constabulary to act on his behalf in approving and disapproving applications for
personal, special and hunting licenses. This was followed by Executive Order No.
61[14] designating the Philippine Constabulary (PC) as the government custodian
of all firearms, ammunitions and explosives. Executive Order No. 215,[15] issued
by President Diosdado Macapagal on December 3, 1965, granted the Chief of
the Constabulary, not only the authority to approve or disapprove applications
for personal, special and hunting license, but also the authority to revoke the
same. With the foregoing developments, it is accurate to say that the Chief of
the Constabulary had exercised the authority for a long time. In fact,
subsequent issuances such as Sections 2 and 3 of the Implementing Rules and
Regulations of Presidential Decree No. 1866[16] perpetuate such authority of the
Chief of the Constabulary. Section 2 specifically provides that any person or
entity desiring to possess any firearm shall first secure the necessary
permit/license/authority from the Chief of the Constabulary. With regard to the
issuance of PTCFOR, Section 3 imparts: The Chief of Constabulary may, in
meritorious cases as determined by him and under such conditions as he may
impose, authorize lawful holders of firearms to carry them outside of residence.
These provisions are issued pursuant to the general power granted by P.D. No.
1866 empowering him to promulgate rules and regulations for the effective for violations of P.D. No. 1866. The Rules seek to give effect to the beneficent
implementation of the decree.[17] At this juncture, it bears emphasis that P.D. provisions of R.A. No. 8294, thereby ensuring the early release and
No. 1866 is the chief law governing possession of firearms in the Philippines and reintegration of the convicts into the community.
that it was issued by President Ferdinand E. Marcos in the exercise of his
Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize the PNP Chief to
legislative power.[18]
issue the assailed guidelines.
In an attempt to evade the application of the above-mentioned laws and
Corollarily, petitioner disputes President Arroyos declaration of a
regulations, petitioner argues that the Chief of the PNP is not the same as the
nationwide gun ban, arguing that she has no authority to alter, modify, or
Chief of the Constabulary, the PC being a mere unit or component of the newly
amend the law on firearms through a mere speech.
established PNP. He contends further that Republic Act No. 8294[19] amended
P.D. No. 1866 such that the authority to issue rules and regulations regarding First, it must be emphasized that President Arroyos speech was just an
firearms is now jointly vested in the Department of Justice and the DILG, not expression of her policy and a directive to her subordinate. It cannot, therefore,
the Chief of the Constabulary.[20] be argued that President Arroyo enacted a law through a mere speech.
Petitioners submission is bereft of merit. Second, at the apex of the entire executive officialdom is the
President. Section 17, Article VII of the Constitution specifies his power as Chief
By virtue of Republic Act No. 6975,[21] the Philippine National Police (PNP)
Executive, thus: The President shall have control of all the executive
absorbed the Philippine Constabulary (PC). Consequently, the PNP Chief
departments, bureaus and offices. He shall ensure that the laws be faithfully
succeeded the Chief of the Constabulary and, therefore, assumed the latters
executed. As Chief Executive, President Arroyo holds the steering wheel that
licensing authority. Section 24 thereof specifies, as one of PNPs powers, the
controls the course of her government. She lays down policies in the execution
issuance of licenses for the possession of firearms and explosives in accordance
of her plans and programs. Whatever policy she chooses, she has her
with law.[22] This is in conjunction with the PNP Chiefs power to issue detailed
subordinates to implement them. In short, she has the power of
implementing policies and instructions on such matters as may be necessary to
control. Whenever a specific function is entrusted by law or regulation to her
effectively carry out the functions, powers and duties of the PNP.[23]
subordinate, she may act directly or merely direct the performance of a
Contrary to petitioners contention, R.A. No. 8294 does not divest the Chief duty.[24] Thus, when President Arroyo directed respondent Ebdane to suspend
of the Constabulary (now the PNP Chief) of his authority to promulgate rules the issuance of PTCFOR, she was just directing a subordinate to perform an
and regulations for the effective implementation of P.D. No. 1866. For one, R.A. assigned duty. Such act is well within the prerogative of her office.
No. 8294 did not repeal entirely P.D. No. 1866. It merely provides for the
II
reduction of penalties for illegal possession of firearms. Thus, the provision of
P.D. No. 1866 granting to the Chief of the Constabulary the authority to issue
rules and regulations regarding firearms remains effective. Correspondingly,
the Implementing Rules and Regulations dated September 15, 1997 jointly Right to bear arms: Constitutional or Statutory?
issued by the Department of Justice and the DILG pursuant to Section 6 of R.A.
No. 8294 deal only with the automatic review, by the Director of the Bureau of
Petitioner earnestly contends that his right to bear arms is a
Corrections or the Warden of a provincial or city jail, of the records of convicts
constitutionally-protected right. This, he mainly anchors on various American

156
authorities. We therefore find it imperative to determine the nature of the right
in light of American jurisprudence.
The bearing of arms is a tradition deeply rooted in the English and
American society. It antedates not only the American Constitution but also the
discovery of firearms.[25]
A provision commonly invoked by the American people to justify their
possession of firearms is the Second Amendment of the Constitution of the
United States of America, which reads:
A well regulated militia, being necessary for the security of free state, the right
of the people to keep and bear Arms, shall not be infringed.
An examination of the historical background of the foregoing provision
shows that it pertains to the citizens collective right to take arms in defense of
the State, not to the citizens individual right to own and possess arms. The
setting under which the right was contemplated has a profound connection
with the keeping and maintenance of a militia or an armed citizenry. That this
is how the right was construed is evident in early American cases.
The first case involving the interpretation of the Second Amendment that
reached the United States Supreme Court is United States vs. Miller.[26] Here,
the indictment charged the defendants with transporting an unregistered
Stevens shotgun without the required stamped written order, contrary to
the National Firearms Act. The defendants filed a demurrer challenging the
facial validity of the indictment on the ground that the National Firearms
Act offends the inhibition of the Second Amendment. The District Court
sustained the demurrer and quashed the indictment. On appeal, the Supreme
Court interpreted the right to bear arms under the Second Amendment as
referring to the collective right of those comprising the Militia a body of citizens
enrolled for military discipline. It does not pertain to the individual right of citizen
to bear arm. Miller expresses its holding as follows:
In the absence of any evidence tending to show that possession or use of a
shotgun having a barrel of less than eighteen inches in length at this time has
157
some reasonable relationship to the preservation or efficiency of a well regulated
militia, we cannot say that the Second Amendment guarantees the right to keep
and bear such an instrument. Certainly it is not within judicial notice that this
weapon is any part of the ordinary military equipment or that its use could
contribute to the common defense.
The same doctrine was re-echoed in Cases vs. United States.[27] Here, the
Circuit Court of Appeals held that the Federal Firearms Act, as applied to
appellant, does not conflict with the Second Amendment. It ruled that:
While [appellants] weapon may be capable of military use, or while at least
familiarity with it might be regarded as of value in training a person to use a
comparable weapon of military type and caliber, still there is no evidence that
the appellant was or ever had been a member of any military organization or that
his use of the weapon under the circumstances disclosed was in preparation for
a military career. In fact, the only inference possible is that the appellant at the
time charged in the indictment was in possession of, transporting, and using the
firearm and ammunition purely and simply on a frolic of his own and without any
thought or intention of contributing to the efficiency of the well regulated militia
which the Second amendment was designed to foster as necessary to the
security of a free state.
With the foregoing jurisprudence, it is erroneous to assume that the US
Constitution grants upon the American people the right to bear arms. In a more
explicit language, the United States vs. Cruikshank[28] decreed: The right of the
people to keep and bear arms is not a right granted by the Constitution. Neither
is it in any way dependent upon that instrument. Likewise, in People vs.
Persce,[29] the Court of Appeals said: Neither is there any constitutional
provision securing the right to bear arms which prohibits legislation with
reference to such weapons as are specifically before us for consideration. The
provision in the Constitution of the United States that the right of the people to
keep and bear arms shall not be infringed is not designed to control legislation
by the state.
 With more reason, the right to bear arms cannot be classified as
fundamental under the 1987 Philippine Constitution. Our Constitution contains
no provision similar to the Second Amendment, as we aptly observed in the
early case of United States vs. Villareal:[30]
The only contention of counsel which would appear to necessitate comment is
the claim that the statute penalizing the carrying of concealed weapons and
prohibiting the keeping and the use of firearms without a license, is in violation
of the provisions of section 5 of the Philippine Bill of Rights.
Counsel does not expressly rely upon the prohibition in the United States
Constitution against the infringement of the right of the people of the United
States to keep and bear arms (U. S. Constitution, amendment 2), which is not
included in the Philippine Bill. But it may be well, in passing, to point out that in
no event could this constitutional guaranty have any bearing on the case at bar,
not only because it has not been expressly extended to the Philippine Islands, but
also because it has been uniformly held that both this and similar provisions in
State constitutions apply only to arms used in civilized warfare (see cases cited in
40 Cyc., 853, note 18); x x x.
Evidently, possession of firearms by the citizens in the Philippines is the
exception, not the rule. The right to bear arms is a mere statutory privilege, not
a constitutional right. It is a mere statutory creation. What then are the laws
that grant such right to the Filipinos? The first real firearm law is Act No. 1780
enacted by the Philippine Commission on October 12, 1907. It was passed to
regulate the importation, acquisition, possession, use and transfer of
firearms. Section 9 thereof provides:
SECTION 9. Any person desiring to possess one or more firearms for personal
protection, or for use in hunting or other lawful purposes only, and ammunition
therefor, shall make application for a license to possess such firearm or firearms
or ammunition as hereinafter provided. Upon making such application, and
before receiving the license, the applicant shall make a cash deposit in the
postal savings bank in the sum of one hundred pesos for each firearm for which
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the license is to be issued, or in lieu thereof he may give a bond in such form as
the Governor-General may prescribe, payable to the Government of the
Philippine Islands, in the sum of two hundred pesos for each such
firearm: PROVIDED, HOWEVER, That persons who are actually members of gun
clubs, duly formed and organized at the time of the passage of this Act, who at
such time have a license to possess firearms, shall not be required to make the
deposit or give the bond prescribed by this section, and the bond duly executed
by such person in accordance with existing law shall continue to be security for
the safekeeping of such arms.
The foregoing provision was restated in Section 887[31] of Act No. 2711
that integrated the firearm laws. Thereafter, President Ferdinand E. Marcos
issued P.D. No. 1866. It codified the laws on illegal possession, manufacture,
dealing in, acquisition of firearms, ammunitions or explosives and imposed
stiffer penalties for their violation. R.A. No. 8294 amended some of the
provisions of P.D. No. 1866 by reducing the imposable penalties. Being a mere
statutory creation, the right to bear arms cannot be considered an inalienable
or absolute right.
III
Vested Property Right
Section 1, Article III of the Constitution provides that no person shall be
deprived of life, liberty or property without due process of law. Petitioner
invokes this provision, asserting that the revocation of his PTCFOR pursuant to
the assailed Guidelines deprived him of his vested property right without due
process of law and in violation of the equal protection of law.
Petitioner cannot find solace to the above-quoted Constitutional
provision.
In evaluating a due process claim, the first and foremost consideration
must be whether life, liberty or property interest exists.[32] The bulk of
jurisprudence is that a license authorizing a person to enjoy a certain privilege
is neither a property nor property right. In Tan vs. The Director of Forestry,[33] we
ruled that a license is merely a permit or privilege to do what otherwise would
be unlawful, and is not a contract between the authority 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. In a more emphatic pronouncement, we held in Oposa
vs. Factoran, Jr.[34] that:
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.
Petitioner, in arguing that his PTCFOR is a constitutionally protected
property right, relied heavily on Bell vs. Burson[35] wherein the U.S. Supreme
Court ruled that once a license is issued, continued possession may become
essential in the pursuit of livelihood. Suspension of issued licenses thus involves
state action that adjudicates important interest of the licensees.
Petitioners reliance on Bell is misplaced. This case involves a drivers
license, not a license to bear arms. The catena of American jurisprudence
involving license to bear arms is perfectly in accord with our ruling that a
PTCFOR is neither a property nor a property right. In Erdelyi vs. OBrien,[36] the
plaintiff who was denied a license to carry a firearm brought suit against the
defendant who was the Chief of Police of the City of Manhattan Beach, on the
ground that the denial violated her constitutional rights to due process and
equal protection of the laws. The United States Court of Appeals Ninth Circuit
ruled that Erdelyi did not have a property interest in obtaining a license to carry
a firearm, ratiocinating as follows:
Property interests protected by the Due Process Clause of the Fourteenth
Amendment do not arise whenever a person has only an abstract need or desire
for, or unilateral expectation of a benefit.x x x Rather, they arise from legitimate
claims of entitlement defined by existing rules or understanding that stem from
an independent source, such as state law. x x x
159
Concealed weapons are closely regulated by the State of California. x x
x Whether the statute creates a property interest in concealed weapons licenses
depends largely upon the extent to which the statute contains mandatory
language that restricts the discretion of the [issuing authority] to deny licenses
to applicants who claim to meet the minimum eligibility requirements. x x
x Where state law gives the issuing authority broad discretion to grant or deny
license application in a closely regulated field, initial applicants do not have a
property right in such licenses protected by the Fourteenth Amendment. See
Jacobson, supra, 627 F.2d at 180 (gaming license under Nevada law);
Similar doctrine was announced in Potts vs. City of Philadelphia,[37] Conway
vs. King,[38] Nichols vs. County of Sta. Clara,[39] and Gross vs. Norton.[40] These
cases enunciated that the test whether the statute creates a property right or
interest depends largely on the extent of discretion granted to the issuing
authority.
In our jurisdiction, the PNP Chief is granted broad discretion in the
issuance of PTCFOR. This is evident from the tenor of the Implementing Rules
and Regulations of P.D. No. 1866 which state that the Chief of Constabulary
may, in meritorious cases as determined by him and under such conditions as he
may impose, authorize lawful holders of firearms to carry them outside of
residence. Following the American doctrine, it is indeed logical to say that a
PTCFOR does not constitute a property right protected under our Constitution.
Consequently, a PTCFOR, just like ordinary licenses in other regulated
fields, may be revoked any time. It does not confer an absolute right, but only
a personal privilege to be exercised under existing restrictions, and such as may
thereafter be reasonably imposed.[41] A licensee takes his license subject to
such conditions as the Legislature sees fit to impose, and one of the statutory
conditions of this license is that it might be revoked by the selectmen at their
pleasure. Such a license is not a contract, and a revocation of it does not deprive
the defendant of any property, immunity, or privilege within the meaning of
these words in the Declaration of Rights.[42] The US Supreme Court, in Doyle vs.
Continental Ins. Co,[43]held: The correlative power to revoke or recall a
permission is a necessary consequence of the main power. A mere license by the
State is always revocable.
The foregoing jurisprudence has been resonating in the Philippines as
early as 1908. Thus, in The Government of the Philippine Islands vs.
Amechazurra[44] we ruled:
x x x no private person is bound to keep arms. Whether he does or not is entirely
optional with himself, but if, for his own convenience or pleasure, he desires to
possess arms, he must do so upon such terms as the Government sees fit to
impose, for the right to keep and bear arms is not secured to him by law. The
Government can impose upon him such terms as it pleases. If he is not satisfied
with the terms imposed, he should decline to accept them, but, if for the
purpose of securing possession of the arms he does agree to such conditions,
he must fulfill them.
IV
Police Power
At any rate, assuming that petitioners PTCFOR constitutes a property right
protected by the Constitution, the same cannot be considered as absolute as
to be placed beyond the reach of the States police power. All property in the
state is held subject to its general regulations, necessary to the common good
and general welfare.
In a number of cases, we laid down the test to determine the validity of a
police measure, thus:
(1) The interests of the public generally, as distinguished from those of a
particular class, require the exercise of the police power; and
160
(2) The means employed are reasonably necessary for the accomplishment of
the purpose and not unduly oppressive upon individuals.
Deeper reflection will reveal that the test merely reiterates the essence of
the constitutional guarantees of substantive due process, equal protection, and
non-impairment of property rights.
It is apparent from the assailed Guidelines that the basis for its issuance
was the need for peace and order in the society. Owing to the proliferation of
crimes, particularly those committed by the New Peoples Army (NPA), which
tends to disturb the peace of the community, President Arroyo deemed it best
to impose a nationwide gun ban. Undeniably, the motivating factor in the
issuance of the assailed Guidelines is the interest of the public in general.
The only question that can then arise is whether the means employed are
appropriate and reasonably necessary for the accomplishment of the purpose
and are not unduly oppressive.In the instant case, the assailed Guidelines do
not entirely prohibit possession of firearms. What they proscribe is merely the
carrying of firearms outside of residence. However, those who wish to carry
their firearms outside of their residences may re-apply for a new PTCFOR. This
we believe is a reasonable regulation. If the carrying of firearms is regulated,
necessarily, crime incidents will be curtailed. Criminals carry their weapon to
hunt for their victims; they do not wait in the comfort of their homes. With the
revocation of all PTCFOR, it would be difficult for criminals to roam around with
their guns. On the other hand, it would be easier for the PNP to apprehend
them.
Notably, laws regulating the acquisition or possession of guns have
frequently been upheld as reasonable exercise of the police power.[45] In State
vs. Reams,[46] it was held that the legislature may regulate the right to bear arms
in a manner conducive to the public peace. With the promotion of public peace
as its objective and the revocation of all PTCFOR as the means, we are
convinced that the issuance of the assailed Guidelines constitutes a reasonable
exercise of police power. The ruling in United States vs. Villareal,[47] is relevant,
thus:
We think there can be no question as to the reasonableness of a statutory
regulation prohibiting the carrying of concealed weapons as a police measure
well calculated to restrict the too frequent resort to such weapons in moments
of anger and excitement. We do not doubt that the strict enforcement of such
a regulation would tend to increase the security of life and limb, and to suppress
crime and lawlessness, in any community wherein the practice of carrying
concealed weapons prevails, and this without being unduly oppressive upon
the individual owners of these weapons. It follows that its enactment by the
legislature is a proper and legitimate exercise of the police power of the state.

Ex post facto law

In Mekin vs. Wolfe,[48] an ex post facto law has been defined as

one (a) which makes an action done before the passing of the law and which
was innocent when done criminal, and punishes such action; or (b) which
aggravates a crime or makes it greater than it was when committed; or (c) which
changes the punishment and inflicts a greater punishment than the law
annexed to the crime when it was committed; or (d) which alters the legal rules
of evidence and receives less or different testimony than the law required at
the time of the commission of the offense in order to convict the defendant.
We see no reason to devote much discussion on the matter. Ex post
facto law prohibits retrospectivity of penal laws.[49] The assailed Guidelines
cannot be considered as an ex post facto law because it is prospective in its
application. Contrary to petitioners argument, it would not result in the
punishment of acts previously committed.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.

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