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THIRD DIVISION

[G.R. No. 129098. December 6, 2006.]


AMELIA CABRERA, petitioner, vs.
MANUEL LAPID, FERNANDO
BALTAZAR, REYNALDO F. CABRERA
and DIONY VENTURA, respondents.
DECISION
TINGA, J p:
The instant petition for review on certiorari seeks the reversal
of the Resolution 1 dated 13 May 1996 and the Order 2 dated
21 March 1997, both issued by the Office of the Ombudsman.
The Resolution dismissed the complaint-affidavit filed by
petitioner against respondents and the Order denied her
motion for reconsideration.
The instant petition originated from a Complaint-Affidavit 3
filed in November 1995 by petitioner Amelia M. Cabrera with
the Office of the Ombudsman ("Ombudsman"). Named
respondents were Manuel Lapid, Fernando Baltazar, Reynaldo
F. Cabrera and Superintendent Diony Ventura, respectively, in
their capacities as Governor of Pampanga, Mayor of Sasmuan,
Pampanga, Vice-Mayor of Sasmuan, Pampanga and
Superintendent of the Philippine National Police (PNP)-Region
3, Pampanga. In her three(3)-page affidavit, petitioner
accused respondents of violating Section 3(e) of the Anti-Graft
and Corrupt Practices Act and Article 324 of the Revised Penal
Code.
In her Complaint-Affidavit, petitioner stated that she entered
into a lease agreement with the Municipality of Sasmuan over
a tract of land for the purpose of devoting it to fishpond
operations. According to petitioner, she had spent
approximately P5,000,000.00 for its construction before the
fishpond operations commenced in August 1995. A month
later, petitioner learned from newspaper reports of the
impending demolition of her fishpond as it was purportedly
illegal and blocked the flow of the Pasak River. Thus, petitioner
sent the fishpond administrator to dissuade respondents from
destroying her property. 4
Despite pleas from petitioner, respondents ordered the
destruction of petitioner's fishpond. The property was
demolished on 10 October 1995 by dynamite blasting.
Petitioner alleged that the demolition was purposely carried
out in the presence of media representatives and other
government officials to gain media mileage. Petitioner
imputed evident bad faith on respondents Mayor Baltazar and
Vice-Mayor Cabrera in allowing the destruction of the fishpond
despite their prior knowledge of the existence of the lease
agreement. She also charged respondents Governor Lapid and
Senior Superintendent Ventura with gross inexcusable
negligence for ordering the destruction of the fishpond
without first verifying its legality. 5
At the preliminary investigation, respondents, except Senior
Superintendent Ventura, submitted counter-affidavits, denying
the accusations against them. In the counter-affidavit jointly
filed by Mayor Baltazar and Vice-Mayor Cabrera, they insisted
that contrary to petitioner's claim, the fishpond was an illegal
structure because it was erected on the seashore, at the
mouth of the Pasak River, and sat on an inalienable land. They
claimed that the demolition was done by the Task Force Bilis
Daloy upon the directive of then President Fidel V. Ramos. 6
In his Counter-Affidavit, 7 Governor Lapid averred that the
contract of lease between petitioner and the Municipality of
Sasmuan, represented by then Mayor Abelardo Panlaqui, was
executed two weeks before respondent Mayor Baltazar took
his oath of office in 1995. Governor Lapid also argued that
under the law, the Department of Agriculture (DA) is the
government agency authorized to enter into licensing
agreements for fishpond operations, and as per certification
by the DA Regional Director, petitioner's fishpond operation
was not covered by a fishpond lease agreement or
application. Governor Lapid also referred to the certification
by the Municipal Health Officer of Sasmuan issued before the
actual demolition of the fishpond, describing it as a nuisance
per se and recommending its abatement. 8

On 13 May 1996, the Ombudsman issued the assailed


Resolution, dismissing petitioner's complaint. The dismissal
was based on the declaration that the fishpond was a
nuisance per se and, thus, may be abated by respondents in
the exercise of the police power of the State. 9
Petitioner sought reconsideration of the Resolution, arguing
that under Sec. 149 of Republic Act (R.A.) No. 7160, otherwise
known as the Local Government Code of 1991, the exclusive
authority to grant fishery privileges is vested in the
municipalities. Petitioner also questioned the certification by
the Municipal Health Officer, alleging that the same was
issued before the ocular inspection of the property which took
place only on the day of the demolition. Petitioner also
contended that a judicial proceeding was necessary to
determine whether the property indeed had caused the
flooding. 10 Respondents filed separate oppositions to
petitioner's motion for reconsideration. 11 Petitioner filed a
reply to the opposition 12 and respondent Governor Lapid
filed a rejoinder to the reply. 13
In the Order dated 21 March 1997, the Ombudsman affirmed
its 13 May 1996 Resolution. It ruled that the repealing clause
of R.A. No. 7160 expressly repealed only Sec. 2, 6 and 29 of
Presidential Decree (P.D.) No. 704 so that in harmonizing the
remaining provisions of P.D. No. 704 and the provisions of R.A.
No. 7160 applicable to the grant of fishery privileges, the
Bureau of Fisheries and Aquatic Resources (BFAR) is the
government agency authorized to grant fishpond license or
permit in areas not identified as municipal waters or not
declared as alienable or disposable by the Department of
Environment and Natural Resources (DENR). Since it appears
from DENR records that the subject property has not been
declared disposable or included in areas devoted for fishpond
development, the Ombudsman concluded that the lease
agreement entered into by petitioner was void ab initio. In
view of the illegality of the lease agreement, the Ombudsman
ruled that its demolition was justified. The Ombudsman
described the demolition as a valid exercise of police power
and in accordance with the provision of Sec. 28 of P.D. No. 704
directing the removal of any fishpen or fishpond that
obstructed the free navigation of a stream or lake. It also
upheld the authority of the district health officer to determine
the abatement of a nuisance without need of judicial
proceedings. 14
Petitioner elevated the matter to this Court via a petition for
review on certiorari under Rule 45 of the Rules of Court to
assail the 13 May 1996 Resolution and 21 March 1997 Order
of the Ombudsman. Petitioner subsequently filed an amended
petition for review on certiorari to implead the Ombudsman as
respondent, although in a petition for review on certiorari, the
tribunal whose issuance is assailed need not be impleaded as
respondent. acEHSI
The petition imputes the following errors on the Ombudsman:
I.
THE OFFICE OF THE OMBUDSMAN ERRED
AND EXCEEDED ITS AUTHORITY IN RULING
THAT THE LEASE CONTRACT BETWEEN
THE MUNICIPALITY OF SASMUAN AND
PETITIONER IS NULL AND VOID.
II.
THE OFFICE OF THE OMBUDSMAN ERRED
IN RULING THAT THE DEMOLITION OF THE
FISHPOND WAS VALIDLY MADE BY VIRTUE
OF THE DECLARATION BY THE HEALTH
OFFICER THAT IT WAS A NUISANCE PER
SE.
III.
THE OFFICE OF THE OMBUDSMAN ERRED
IN RULING THAT THE DEMOLITION IS PART
OF THE PROPER EXERCISE OF THE POLICE
POWER OF THE STATE.
IV.

THE OFFICE OF THE OMBUDSMAN ERRED


IN RULING THAT PETITIONER WAS GIVEN
DUE NOTICE AND HEARING BEFORE THE
FISHPOND WAS BLASTED.
V.
THE OFFICE OF THE OMBUDSMAN ERRED
IN RULING THAT PROBABLE CAUSE DOES
NOT EXIST TO INDICT RESPONDENTS FOR
VIOLATION OF THE SUBJECT OFFENSES.
15
Clearly, this is an appeal from the questioned issuances of the
Ombudsman. However, such direct resort to this Court from a
resolution or order of the Ombudsman is not sanctioned by
any rule of procedure.
Neither can petitioner avail of Sec. 27 16 of R.A. No. 6770,
otherwise known as The Ombudsman Act of 1989. The
provision allowed direct appeals in administrative disciplinary
cases from the Office of the Ombudsman to the Supreme
Court. The right to appeal is granted only in respect to orders
or decisions of the Ombudsman in administrative cases. 17
The provision does not cover resolutions of the Ombudsman in
criminal cases. More importantly, Sec. 27 of R.A. No. 6770
insofar as it allowed a direct appeal to this Court was declared
unconstitutional in Fabian v. Hon. Desierto. 18
However, an aggrieved party in criminal actions is not without
any recourse. Where grave abuse of discretion amounting to
lack or excess of jurisdiction taints the findings of the
Ombudsman on the existence of probable cause, the
aggrieved party may file a petition for certiorari under Rule
65. 19 The remedy from resolutions of the Ombudsman in
preliminary investigations of criminal cases is a petition for
certiorari under Rule 65, not a petition for review on certiorari
under Rule 45. 20
But in this case, petitioner has taken the position that the
Ombudsman has decided questions of substance contrary to
law and the applicable decisions of the Supreme Court. That is
a ground under a Rule 45 petition. Indeed, from a reading of
the assignment of errors, it is clear that petitioner does not
impute grave abuse of discretion to the Ombudsman in
issuing the assailed Resolution and Order. Rather, she merely
questions his findings and conclusions. As stated earlier,
direct appeal to the Supreme Court via a petition for review on
certiorari is not sanctioned by any rule of procedure. By
availing of a wrong remedy, the petition should be dismissed
outright. TAIDHa
Even if the Court treats the instant appeal as a petition for
certiorari under Rule 65, its dismissal is nevertheless
warranted because petitioner failed to present, much more
substantiate, any grave abuse of discretion on the part of the
Ombudsman.
A careful reading of the questioned Resolution reveals that the
Ombudsman dismissed petitioner's criminal complaint
because respondents had validly resorted to the police power
of the State when they effected the demolition of the illegal
fishpond in question following the declaration thereof as a
nuisance per se. Thus, the Ombudsman was of the opinion
that no violation of Section 3(e) 21 of the Anti-Graft and
Corrupt Practices Act or of Article 324 22 of the Revised Penal
Code was committed by respondents. In the words of the
Ombudsman, "those who participated in the blasting of the
subject fishpond were only impelled by their desire to serve
the best interest of the general public; for the good and the
highest good." 23
By grave abuse of discretion is meant capricious and
whimsical exercise of judgment as is equivalent to lack of
jurisdiction. Mere abuse of discretion is not enough. It must be
grave abuse of discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal
hostility, and must be so patent and so gross as to amount to
an evasion of a positive duty or to a virtual refusal to perform
the duty enjoined or to act at all in contemplation of law. 24
Grave abuse of discretion should be differentiated from an
error in judgment. An error of judgment is one which the court
may commit in the exercise of its jurisdiction, and which error

is reversible only by an appeal. As long as the court acts


within its jurisdiction, any alleged errors committed in the
exercise of its discretion will amount to nothing more than
mere errors of judgment, correctible by an appeal or a petition
for review under Rule 45 of the Rules of Court. An error of
jurisdiction is one where the act complained of was issued by
the court without or in excess of jurisdiction and which error is
correctible only by the extraordinary writ of certiorari. 25
The other errors raised by petitioner pertain to the
Ombudsman's opinion on the lack of probable cause to indict
respondents. These are purported errors in judgment which
can be corrected by an appeal, although not via a direct
appeal to this Court. Direct resort to this Court may be had
only through the extraordinary writ of certiorari and upon
showing that the Ombudsman committed grave abuse of
discretion, which petitioner failed to demonstrate.
Absent any grave abuse of discretion tainting it, the courts will
not interfere with the Ombudsman's supervision and control
over the preliminary investigation conducted by him. 26 It is
beyond the ambit of this Court to review the exercise of
discretion of the Ombudsman in prosecuting or dismissing a
complaint filed before it. 27 The rule is based not only upon
respect for the investigatory and prosecutory powers granted
by the Constitution to the Office of the Ombudsman but upon
practicality as well. Otherwise, the functions of the courts will
be grievously hampered by innumerable petitions assailing
the dismissal of investigatory proceedings conducted by the
Office of the Ombudsman with regard to complaints filed
before it, in much the same way that the courts would be
extremely swamped if they would be compelled to review the
exercise of discretion on the part of the fiscals or prosecuting
attorneys each time they decide to file an information in court
or dismiss a complaint by a private complainant. 28
WHEREFORE, the instant petition for review on certiorari is
DENIED. No costs. ICTaEH
SO ORDERED.
EN BANC
[G.R. No. 166494. June 29, 2007.]
CARLOS SUPERDRUG CORP., xxx", petitioners, vs.
DEPARTMENT OF SOCIAL WELFARE and xxx.
respondents.
DECISION
AZCUNA, J p:
This is a petition 1 for Prohibition with Prayer for Preliminary
Injunction assailing the constitutionality of Section 4 (a) of
Republic Act (R.A.) No. 9257, 2 otherwise known as the
"Expanded Senior Citizens Act of 2003".
Petitioners are domestic corporations and proprietors
operating drugstores in the Philippines. TCcSDE
Public respondents, on the other hand, include the
Department of Social Welfare and Development (DSWD), the
Department of Health (DOH), the Department of Finance
(DOF), the Department of Justice (DOJ), and the Department of
Interior and Local Government (DILG) which have been
specifically tasked to monitor the drugstores' compliance with
the law; promulgate the implementing rules and regulations
for the effective implementation of the law; and prosecute and
revoke the licenses of erring drugstore establishments.
The antecedents are as follows:
On February 26, 2004, R.A. No. 9257, amending R.A. No. 7432,
3 was signed into law by President Gloria Macapagal-Arroyo
and it became effective on March 21, 2004. Section 4 (a) of
the Act states:
SEC. 4.Privileges for the Senior Citizens.
The senior citizens shall be entitled to
the following:

(a)the grant of twenty percent (20%)


discount from all establishments relative
to the utilization of services in hotels and
similar lodging establishments,
restaurants and recreation centers, and
purchase of medicines in all
establishments for the exclusive use or
enjoyment of senior citizens, including
funeral and burial services for the death
of senior citizens;
xxx xxx xxx
The establishment may claim the
discounts granted under (a), (f), (g) and
(h) as tax deduction based on the net
cost of the goods sold or services
rendered: Provided, That the cost of the
discount shall be allowed as deduction
from gross income for the same taxable
year that the discount is granted.
Provided, further, That the total amount of
the claimed tax deduction net of value
added tax if applicable, shall be included
in their gross sales receipts for tax
purposes and shall be subject to proper
documentation and to the provisions of
the National Internal Revenue Code, as
amended. 4
On May 28, 2004, the DSWD approved and adopted the
Implementing Rules and Regulations of R.A. No. 9257, Rule VI,
Article 8 of which states:
Article 8.Tax Deduction of Establishments.
The establishment may claim the
discounts granted under Rule V, Section 4
Discounts for Establishments; 5 Section
9, Medical and Dental Services in Private
Facilities[,] 6 and Sections 10 7 and 11 8
Air, Sea and Land Transportation as tax
deduction based on the net cost of the
goods sold or services rendered. Provided,
That the cost of the discount shall be
allowed as deduction from gross income
for the same taxable year that the
discount is granted; Provided, further,
That the total amount of the claimed tax
deduction net of value added tax if
applicable, shall be included in their gross
sales receipts for tax purposes and shall
be subject to proper documentation and
to the provisions of the National Internal
Revenue Code, as amended; Provided,
finally, that the implementation of the tax
deduction shall be subject to the Revenue
Regulations to be issued by the Bureau of
Internal Revenue (BIR) and approved by
the Department of Finance (DOF). 9
DSITEH
On July 10, 2004, in reference to the query of the Drug Stores
Association of the Philippines (DSAP) concerning the meaning
of a tax deduction under the Expanded Senior Citizens Act,
the DOF, through Director IV Ma. Lourdes B. Recente, clarified
as follows:
1)The difference between the Tax Credit
(under the Old Senior Citizens Act) and
Tax Deduction (under the Expanded
Senior Citizens Act).
1.1.The provision of Section 4 of
R.A. No. 7432 (the old Senior
Citizens Act) grants twenty
percent (20%) discount from all
establishments relative to the
utilization of transportation
services, hotels and similar
lodging establishment,
restaurants and recreation
centers and purchase of
medicines anywhere in the
country, the costs of which may
be claimed by the private

establishments concerned as tax


credit.
Effectively, a tax credit is a
peso-for-peso deduction from a
taxpayer's tax liability due to the
government of the amount of
discounts such establishment
has granted to a senior citizen.
The establishment recovers the
full amount of discount given to a
senior citizen and hence, the
government shoulders 100% of
the discounts granted.
It must be noted, however, that
conceptually, a tax credit
scheme under the Philippine tax
system, necessitates that prior
payments of taxes have been
made and the taxpayer is
attempting to recover this tax
payment from his/her income tax
due. The tax credit scheme
under R.A. No. 7432 is, therefore,
inapplicable since no tax
payments have previously
occurred.
1.2.The provision under R.A. No.
9257, on the other hand,
provides that the establishment
concerned may claim the
discounts under Section 4 (a), (f),
(g) and (h) as tax deduction
from gross income, based on the
net cost of goods sold or services
rendered.
Under this scheme, the
establishment concerned is
allowed to deduct from gross
income, in computing for its tax
liability, the amount of discounts
granted to senior citizens.
Effectively, the government loses
in terms of foregone revenues an
amount equivalent to the
marginal tax rate the said
establishment is liable to pay the
government. This will be an
amount equivalent to 32% of the
twenty percent (20%) discounts
so granted. The establishment
shoulders the remaining portion
of the granted discounts.
It may be necessary to note that
while the burden on [the]
government is slightly
diminished in terms of its
percentage share on the
discounts granted to senior
citizens, the number of potential
establishments that may claim
tax deductions, have however,
been broadened. Aside from the
establishments that may claim
tax credits under the old law,
more establishments were added
under the new law such as:
establishments providing medical
and dental services, diagnostic
and laboratory services,
including professional fees of
attending doctors in all private
hospitals and medical facilities,
operators of domestic air and sea
transport services, public
railways and skyways and bus
transport services. cDaEAS
A simple illustration might help
amplify the points discussed
above, as follows:

Tax DeductionTax Credit


Gross Salesx x x x x xx x x x x x
Less: Cost of goods soldx x x x xx x x x x

Net Salesx x x x x xx x x x x x
Less: Operating Expenses:

Petitioners assert that Section 4 (a) of the law is


unconstitutional because it constitutes deprivation of private
property. Compelling drugstore owners and establishments to
grant the discount will result in a loss of profit and capital
because 1) drugstores impose a mark-up of only 5% to 10%
on branded medicines; and 2) the law failed to provide a
scheme whereby drugstores will be justly compensated for the
discount.
Examining petitioners' arguments, it is apparent that what
petitioners are ultimately questioning is the validity of the tax
deduction scheme as a reimbursement mechanism for the
twenty percent (20%) discount that they extend to senior
citizens.

Tax Deduction on Discountsx x x x-Other deductions:x x x xx x x x

Net Taxable Incomex x x x xx x x x x


Tax Duex x xx x x

Based on the afore-stated DOF Opinion, the tax deduction


scheme does not fully reimburse petitioners for the discount
privilege accorded to senior citizens. This is because the
discount is treated as a deduction, a tax-deductible expense
that is subtracted from the gross income and results in a lower
taxable income. Stated otherwise, it is an amount that is
allowed by law 15 to reduce the income prior to the
application of the tax rate to compute the amount of tax
which is due. 16 Being a tax deduction, the discount does not
reduce taxes owed on a peso for peso basis but merely offers
a fractional reduction in taxes owed.

Less: Tax Credit--x x

Net Tax Due--x x


As shown above, under a tax deduction
scheme, the tax deduction on
discounts was subtracted from Net Sales
together with other deductions which are
considered as operating expenses before
the Tax Due was computed based on the
Net Taxable Income. On the other hand,
under a tax credit scheme, the amount
of discounts which is the tax credit item,
was deducted directly from the tax due
amount. 10
Meanwhile, on October 1, 2004, Administrative Order (A.O.)
No. 171 or the Policies and Guidelines to Implement the
Relevant Provisions of Republic Act 9257, otherwise known as
the "Expanded Senior Citizens Act of 2003" 11 was issued by
the DOH, providing the grant of twenty percent (20%)
discount in the purchase of unbranded generic medicines from
all establishments dispensing medicines for the exclusive use
of the senior citizens.
On November 12, 2004, the DOH issued Administrative Order
No. 177 12 amending A.O. No. 171. Under A.O. No. 177, the
twenty percent discount shall not be limited to the purchase
of unbranded generic medicines only, but shall extend to both
prescription and non-prescription medicines whether branded
or generic. Thus, it stated that "[t]he grant of twenty percent
(20%) discount shall be provided in the purchase of medicines
from all establishments dispensing medicines for the exclusive
use of the senior citizens".
Petitioners assail the constitutionality of Section 4 (a) of the
Expanded Senior Citizens Act based on the following grounds:
13
1)The law is confiscatory because it infringes Art. III,
Sec. 9 of the Constitution which provides that private
property shall not be taken for public use without just
compensation; EAcHCI
2)It violates the equal protection clause (Art. III, Sec.
1) enshrined in our Constitution which states that "no
person shall be deprived of life, liberty or property
without due process of law, nor shall any person be
denied of the equal protection of the laws;" and
3)The 20% discount on medicines violates the
constitutional guarantee in Article XIII, Section 11
that makes "essential goods, health and other social
services available to all people at affordable cost."
14

Theoretically, the treatment of the discount as a deduction


reduces the net income of the private establishments
concerned. The discounts given would have entered the
coffers and formed part of the gross sales of the private
establishments, were it not for R.A. No. 9257.
The permanent reduction in their total revenues is a forced
subsidy corresponding to the taking of private property for
public use or benefit. 17 This constitutes compensable taking
for which petitioners would ordinarily become entitled to a just
compensation. TIcAaH
Just compensation is defined as the full and fair equivalent of
the property taken from its owner by the expropriator. The
measure is not the taker's gain but the owner's loss. The word
just is used to intensify the meaning of the word
compensation, and to convey the idea that the equivalent to
be rendered for the property to be taken shall be real,
substantial, full and ample. 18
A tax deduction does not offer full reimbursement of the
senior citizen discount. As such, it would not meet the
definition of just compensation. 19
Having said that, this raises the question of whether the State,
in promoting the health and welfare of a special group of
citizens, can impose upon private establishments the burden
of partly subsidizing a government program.
The Court believes so.
The Senior Citizens Act was enacted primarily to maximize the
contribution of senior citizens to nation-building, and to grant
benefits and privileges to them for their improvement and
well-being as the State considers them an integral part of our
society. 20
The priority given to senior citizens finds its basis in the
Constitution as set forth in the law itself. Thus, the Act
provides:
SEC. 2.Republic Act No. 7432 is hereby
amended to read as follows:
SECTION 1. Declaration of Policies and
Objectives. Pursuant to Article XV,
Section 4 of the Constitution, it is the duty
of the family to take care of its elderly
members while the State may design
programs of social security for them. In
addition to this, Section 10 in the
Declaration of Principles and State Policies
provides: "The State shall provide social
justice in all phases of national
development." Further, Article XIII, Section
11, provides: "The State shall adopt an

integrated and comprehensive approach


to health development which shall
endeavor to make essential goods, health
and other social services available to all
the people at affordable cost. There shall
be priority for the needs of the
underprivileged sick, elderly, disabled,
women and children." Consonant with
these constitutional principles the
following are the declared policies of this
Act:
xxx xxx xxx
(f)To recognize the important role of
the private sector in the
improvement of the welfare of senior
citizens and to actively seek their
partnership. 21 DAEIHT
To implement the above policy, the law grants a twenty
percent discount to senior citizens for medical and dental
services, and diagnostic and laboratory fees; admission fees
charged by theaters, concert halls, circuses, carnivals, and
other similar places of culture, leisure and amusement; fares
for domestic land, air and sea travel; utilization of services in
hotels and similar lodging establishments, restaurants and
recreation centers; and purchases of medicines for the
exclusive use or enjoyment of senior citizens. As a form of
reimbursement, the law provides that business
establishments extending the twenty percent discount to
senior citizens may claim the discount as a tax deduction.
The law is a legitimate exercise of police power which, similar
to the power of eminent domain, has general welfare for its
object. Police power is not capable of an exact definition, but
has been purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide
enough room for an efficient and flexible response to
conditions and circumstances, thus assuring the greatest
benefits. 22 Accordingly, it has been described as "the most
essential, insistent and the least limitable of powers,
extending as it does to all the great public needs." 23 It is
"[t]he power vested in the legislature by the constitution to
make, ordain, and establish all manner of wholesome and
reasonable laws, statutes, and ordinances, either with
penalties or without, not repugnant to the constitution, as
they shall judge to be for the good and welfare of the
commonwealth, and of the subjects of the same." 24
For this reason, when the conditions so demand as
determined by the legislature, property rights must bow to the
primacy of police power because property rights, though
sheltered by due process, must yield to general welfare. 25
Police power as an attribute to promote the common good
would be diluted considerably if on the mere plea of
petitioners that they will suffer loss of earnings and capital,
the questioned provision is invalidated. Moreover, in the
absence of evidence demonstrating the alleged confiscatory
effect of the provision in question, there is no basis for its
nullification in view of the presumption of validity which every
law has in its favor. 26
Given these, it is incorrect for petitioners to insist that the
grant of the senior citizen discount is unduly oppressive to
their business, because petitioners have not taken time to
calculate correctly and come up with a financial report, so that
they have not been able to show properly whether or not the
tax deduction scheme really works greatly to their
disadvantage. 27
In treating the discount as a tax deduction, petitioners insist
that they will incur losses because, referring to the DOF
Opinion, for every P1.00 senior citizen discount that
petitioners would give, P0.68 will be shouldered by them as
only P0.32 will be refunded by the government by way of a
tax deduction. cIDHSC
To illustrate this point, petitioner Carlos Super Drug cited the
anti-hypertensive maintenance drug Norvasc as an example.
According to the latter, it acquires Norvasc from the
distributors at P37.57 per tablet, and retails it at P39.60 (or at
a margin of 5%). If it grants a 20% discount to senior citizens
or an amount equivalent to P7.92, then it would have to sell

Norvasc at P31.68 which translates to a loss from capital of


P5.89 per tablet. Even if the government will allow a tax
deduction, only P2.53 per tablet will be refunded and not the
full amount of the discount which is P7.92. In short, only 32%
of the 20% discount will be reimbursed to the drugstores. 28
Petitioners' computation is flawed. For purposes of
reimbursement, the law states that the cost of the discount
shall be deducted from gross income, 29 the amount of
income derived from all sources before deducting allowable
expenses, which will result in net income. Here, petitioners
tried to show a loss on a per transaction basis, which should
not be the case. An income statement, showing an accounting
of petitioners' sales, expenses, and net profit (or loss) for a
given period could have accurately reflected the effect of the
discount on their income. Absent any financial statement,
petitioners cannot substantiate their claim that they will be
operating at a loss should they give the discount. In addition,
the computation was erroneously based on the assumption
that their customers consisted wholly of senior citizens. Lastly,
the 32% tax rate is to be imposed on income, not on the
amount of the discount.
Furthermore, it is unfair for petitioners to criticize the law
because they cannot raise the prices of their medicines given
the cutthroat nature of the players in the industry. It is a
business decision on the part of petitioners to peg the markup at 5%. Selling the medicines below acquisition cost, as
alleged by petitioners, is merely a result of this decision.
Inasmuch as pricing is a property right, petitioners cannot
reproach the law for being oppressive, simply because they
cannot afford to raise their prices for fear of losing their
customers to competition.
The Court is not oblivious of the retail side of the
pharmaceutical industry and the competitive pricing
component of the business. While the Constitution protects
property rights, petitioners must accept the realities of
business and the State, in the exercise of police power, can
intervene in the operations of a business which may result in
an impairment of property rights in the process.
Moreover, the right to property has a social dimension. While
Article XIII of the Constitution provides the precept for the
protection of property, various laws and jurisprudence,
particularly on agrarian reform and the regulation of contracts
and public utilities, continuously serve as a reminder that the
right to property can be relinquished upon the command of
the State for the promotion of public good. 30
Undeniably, the success of the senior citizens program rests
largely on the support imparted by petitioners and the other
private establishments concerned. This being the case, the
means employed in invoking the active participation of the
private sector, in order to achieve the purpose or objective of
the law, is reasonably and directly related. Without sufficient
proof that Section 4 (a) of R.A. No. 9257 is arbitrary, and that
the continued implementation of the same would be
unconscionably detrimental to petitioners, the Court will
refrain from quashing a legislative act. 31
WHEREFORE, the petition is DISMISSED for lack of merit.
IDEScC
No costs.
SO ORDERED.
EN BANC
[G.R. No. 118127. April 12, 2005.]
CITY OF MANILA, HON. ALFREDO S. LIM as the
Mayor of the City of Manila et al., petitioners, vs.
HON. PERFECTO A.S. LAGUIO, JR., as Presiding
Judge, RTC, Manila and MALATE TOURIST
DEVELOPMENT CORPORATION, respondents.
DECISION
TINGA, J p:
I know only that what is moral is what you
feel good after and what is immoral is
what you feel bad after.

Ernest Hemingway
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 wellintentioned in his dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Court's commitment to the protection of morals is
secondary to its fealty to the fundamental law of the land. It is
foremost a guardian of the Constitution but not the
conscience of individuals. And if it need be, the Court will not
hesitate to "make the hammer fall, and heavily" in the words
of Justice Laurel, and uphold the constitutional guarantees
when faced with laws that, though not lacking in zeal to
promote morality, nevertheless fail to pass the test of
constitutionality.
The pivotal issue in this 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 ERMITAMALATE 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 ErmitaMalate 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 EDSAac
2.Massage Parlors
3.Karaoke Bars
4.Beerhouses

5.Night Clubs
6.Day Clubs
7.Super Clubs
8.Discotheques
9.Cabarets
10.Dance Halls
11.Motels
12.Inns
SEC. 2.The City Mayor, the City Treasurer
or any person acting in behalf of the said
officials are prohibited from issuing
permits, temporary or otherwise, or from
granting licenses and accepting payments
for the operation of business enumerated
in the preceding section.
SEC. 3.Owners and/or operator of
establishments engaged in, or devoted to,
the businesses enumerated in Section 1
hereof are hereby given three (3) months
from the date of approval of this
ordinance within which to wind up
business operations or to transfer to any
place outside of the Ermita-Malate area or
convert said businesses to other kinds of
business allowable within the area, such
as but not limited to:
1.Curio or antique shop
2.Souvenir Shops
3.Handicrafts display centers
4.Art galleries
5.Records and music shops
6.Restaurants
7.Coffee shops
8.Flower shops
9.Music lounge and sing-along
restaurants, with well-defined activities
for wholesome family entertainment that
cater to both local and foreign clientele.
10.Theaters engaged in the exhibition, not
only of motion pictures but also of cultural
shows, stage and theatrical plays, art
exhibitions, concerts and the like.
11.Businesses allowable within the law
and medium intensity districts as provided
for in the zoning ordinances for
Metropolitan Manila, except new
warehouse or open-storage depot, dock or
yard, motor repair shop, gasoline service
station, light industry with any machinery,
or funeral establishments.
SEC. 4.Any person violating any
provisions of this ordinance, shall upon
conviction, be punished by imprisonment
of one (1) year or fine of FIVE THOUSAND
(P5,000.00) PESOS, or both, at the
discretion of the Court, PROVIDED, that in
case of juridical person, the President, the
General Manager, or person-in-charge of
operation shall be liable thereof;
PROVIDED FURTHER, that in case of
subsequent violation and conviction, the
premises of the erring establishment shall
be closed and padlocked permanently.
SEC. 5.This ordinance shall take effect
upon approval.
Enacted by the City Council of Manila at
its regular session today, March 9, 1993.
Approved by His Honor, the Mayor on
March 30, 1993. (Emphasis supplied)
In the RTC Petition, MTDC argued that the Ordinance
erroneously and improperly included in its enumeration of
prohibited establishments, motels and inns such as MTDC's
Victoria Court considering that these were not establishments
for "amusement" or "entertainment" and they were not
"services or facilities for entertainment," nor did they use
women as "tools for entertainment," and neither did they
"disturb the community," "annoy the inhabitants" or
"adversely affect the social and moral welfare of the
community." 11

MTDC further advanced that the Ordinance was invalid and


unconstitutional for the following reasons: (1) The City Council
has no power to prohibit the operation of motels as Section
458 (a) 4 (iv) 12 of the Local Government Code of 1991 (the
Code) grants to the City Council only the power to regulate
the establishment, operation and maintenance of hotels,
motels, inns, pension houses, lodging houses and other
similar establishments; (2) The Ordinance is void as it is
violative of Presidential Decree (P.D.) No. 499 13 which
specifically declared portions of the Ermita-Malate area as a
commercial zone with certain restrictions; (3) The Ordinance
does not constitute a proper exercise of police power as the
compulsory closure of the motel business has no reasonable
relation to the legitimate municipal interests sought to be
protected; (4) The Ordinance constitutes an ex post facto law
by punishing the operation of Victoria Court which was a
legitimate business prior to its enactment; (5) The Ordinance
violates MTDC's constitutional rights in that: (a) it is
confiscatory and constitutes an invasion of plaintiff's property
rights; (b) the City Council has no power to find as a fact that
a particular thing is a nuisance per se nor does it have the
power to extrajudicially destroy it; and (6) The Ordinance
constitutes a denial of equal protection under the law as no
reasonable basis exists for prohibiting the operation of motels
and inns, but not pension houses, hotels, lodging houses or
other similar establishments, and for prohibiting said business
in the Ermita-Malate area but not outside of this area. 14
In their 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:
xxx xxx xxx
(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:
xxx xxx xxx
(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.
cDIaAS
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
xxx xxx xxx
Section 18.Legislative powers. The
Municipal Board shall have the following
legislative powers:
xxx xxx xxx
(kk)To enact all ordinances it may deem
necessary and proper for the sanitation
and safety, the furtherance of the
prosperity, and the promotion of the
morality, peace, good order, comfort,
convenience, and general welfare of the
city and its inhabitants, and such others
as may be necessary to carry into effect
and discharge the powers and duties
conferred by this chapter; and to fix
penalties for the violation of ordinances
which shall not exceed two hundred pesos
fine or six months' imprisonment, or both
such fine and imprisonment, for a single
offense.
Further, the petitioners noted, the Ordinance had the
presumption of validity; hence, private respondent had the
burden to prove its illegality or unconstitutionality. 21
Petitioners also maintained that there was no inconsistency
between P.D. 499 and the Ordinance as the latter simply
disauthorized certain forms of businesses and allowed the
Ermita-Malate area to remain a commercial zone. 22 The
Ordinance, the petitioners likewise claimed, cannot be
assailed as ex post facto as it was prospective in operation. 23
The Ordinance also did not infringe the equal protection
clause and cannot be denounced as class legislation as there
existed substantial and real differences between the ErmitaMalate area and other places in the City of Manila. 24
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr.
(Judge Laguio) issued an ex-parte temporary restraining order
against the enforcement of the Ordinance. 25 And on 16 July
1993, again in an intrepid gesture, he granted the writ of
preliminary injunction prayed for by MTDC. 26
After trial, on 25 November 1994, Judge Laguio rendered the
assailed Decision, enjoining the petitioners from implementing
the Ordinance. The dispositive portion of said Decision reads:
27
WHEREFORE, judgment is hereby
rendered declaring Ordinance No. 778[3],
Series of 1993, of the City of Manila null
and void, and making permanent the writ
of preliminary injunction that had been
issued by this Court against the
defendant. No costs.
SO ORDERED. 28
Petitioners filed with the lower court a Notice of 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 Court's deep
sentiment and tenderness for the Ermita-Malate area being its
home for several decades. A long-time resident, the Court
witnessed the area's many turn of events. It relished its glory
days and endured its days of infamy. Much as the Court harks
back to the resplendant era of the Old Manila and yearns to
restore its lost grandeur, it believes that the Ordinance is not
the fitting means to that end. The Court is of the opinion, and
so holds, that the lower court did not err in declaring the
Ordinance, as it did, ultra vires and therefore null and void.
The Ordinance is so replete with constitutional infirmities that
almost every sentence thereof violates a constitutional
provision. The prohibitions and sanctions therein transgress
the cardinal rights of persons enshrined by the Constitution.
The Court is called upon to shelter these rights from attempts
at rendering them worthless.
The tests of a valid ordinance are well established. A long line
of decisions has held that for an ordinance to be valid, it must
not only be within the corporate powers of the local
government unit to enact and must be passed according to
the procedure prescribed by law, it must also conform to the
following substantive requirements: (1) must not contravene
the Constitution or any statute; (2) must not be unfair or
oppressive; (3) must not be partial or discriminatory; (4) must
not prohibit but may regulate trade; (5) must be general and
consistent with public policy; and (6) must not be
unreasonable. 37
Anent the first criterion, ordinances shall only be valid when
they are not contrary to the Constitution and to the laws. 38
The Ordinance must satisfy two requirements: it must pass
muster under the test of constitutionality and the test of
consistency with the prevailing laws. That ordinances should
be constitutional uphold the principle of the supremacy of the
Constitution. The requirement that the enactment must not
violate existing law gives stress to the precept that local
government units are able to legislate only by virtue of their
derivative legislative power, a delegation of legislative power
from the national legislature. The delegate cannot be superior
to the principal or exercise powers higher than those of the
latter. 39
This relationship between the national legislature and the
local government units has not been enfeebled by the new
provisions in the Constitution strengthening the policy of local
autonomy. The national legislature is still the principal of the
local government units, which cannot defy its will or modify or
violate it. 40
The Ordinance was passed by the City Council in the exercise
of its police power, an enactment of the City Council acting as
agent of Congress. Local government units, as agencies of the
State, are endowed with police power in order to effectively
accomplish and carry out the declared objects of their
creation. 41 This delegated police power is found in Section
16 of the Code, known as the general welfare clause, viz:
SECTION 16.General Welfare. Every
local government unit shall exercise the
powers expressly granted, those
necessarily implied therefrom, as well as

powers necessary, appropriate, or


incidental for its efficient and effective
governance, and those which are
essential to the promotion of the general
welfare. Within their respective territorial
jurisdictions, local government units shall
ensure and support, among other things,
the preservation and enrichment of
culture, promote health and safety,
enhance the right of the people to a
balanced ecology, encourage and support
the development of appropriate and selfreliant 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. STCDaI
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 farreaching, is subordinate to the constitutional limitations
thereon; and is subject to the limitation that its exercise must
be reasonable and for the public good. 43 In the case at bar,
the enactment of the Ordinance was an invalid exercise of
delegated power as it is unconstitutional and repugnant to
general laws.
The relevant constitutional provisions are the following:
SEC. 5.The maintenance of peace and
order, the protection of life, liberty, and
property, and the promotion of the
general welfare are essential for the
enjoyment by all the people of the
blessings of democracy. 44
SEC. 14.The State recognizes the role of
women in nation-building, and shall
ensure the fundamental equality before
the law of women and men. 45
SEC. 1.No person shall be deprived of life,
liberty or property without due process of
law, nor shall any person be denied the
equal protection of laws. 46
SEC. 9.Private property shall not be taken
for public use without just compensation.
47
A.The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in
the fiat "(N)o person shall be deprived of life, liberty or
property without due process of law. . . ." 48
There is no controlling and precise definition of due process. It
furnishes though a standard to which governmental action
should conform in order that deprivation of life, liberty or
property, in each appropriate case, be valid. This standard is
aptly described as a responsiveness to the supremacy of
reason, obedience to the dictates of justice, 49 and as such it
is a limitation upon the exercise of the police power. 50
The purpose of the guaranty is to prevent governmental
encroachment against the life, liberty and property of
individuals; to secure the individual from the arbitrary exercise

of the powers of the government, unrestrained by the


established principles of private rights and distributive justice;
to protect property from confiscation by legislative
enactments, from seizure, forfeiture, and destruction without
a trial and conviction by the ordinary mode of judicial
procedure; and to secure to all persons equal and impartial
justice and the benefit of the general law. 51
The guaranty serves as a protection against arbitrary
regulation, and private corporations and partnerships are
"persons" within the scope of the guaranty insofar as their
property is concerned. 52
This clause has been interpreted as imposing two separate
limits on government, usually called "procedural due process"
and "substantive due process."
Procedural due process, as the phrase implies, refers to the
procedures that the government must follow before it
deprives a person of life, liberty, or property. Classic
procedural due process issues are concerned with what kind
of notice and what form of hearing the government must
provide when it takes a particular action. 53
Substantive due process, as that phrase connotes, asks
whether the government has an adequate reason for taking
away a person's life, liberty, or property. In other words,
substantive due process looks to whether there is a sufficient
justification for the government's action. 54 Case law in the
United States (U.S.) tells us that whether there is such a
justification depends very much on the level of scrutiny used.
55 For example, if a law is in an area where only rational basis
review is applied, substantive due process is met so long as
the law is rationally related to a legitimate government
purpose. But if it is an area where strict scrutiny is used, such
as for protecting fundamental rights, then the government will
meet substantive due process only if it can prove that the law
is necessary to achieve a compelling government purpose. 56
The police power granted to local government units must
always be exercised with utmost observance of the rights of
the people to due process and equal protection of the law.
Such power cannot be exercised whimsically, arbitrarily or
despotically 57 as its exercise is subject to a qualification,
limitation or restriction demanded by the respect and regard
due to the prescription of the fundamental law, particularly
those forming part of the Bill of Rights. Individual rights, it
bears emphasis, may be adversely affected only to the extent
that may fairly be required by the legitimate demands of
public interest or public welfare. 58 Due process requires the
intrinsic validity of the law in interfering with the rights of the
person to his life, liberty and property. 59
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the
rationale for the enactment of the Ordinance, and to free it
from the imputation of constitutional infirmity, not only must it
appear that the interests of the public generally, as
distinguished from those of a particular class, require an
interference with private rights, but the means adopted must
be reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals. 60 It
must be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights
can work. A reasonable relation must exist between the
purposes of the police measure and the means employed for
its accomplishment, for even under the guise of protecting the
public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded. 61
Lacking a concurrence of these two requisites, the police
measure shall be struck down as an arbitrary intrusion into
private rights 62 a violation of the due process clause.
aSDHCT
The Ordinance was enacted to address and arrest the social
ills purportedly spawned by the establishments in the ErmitaMalate area which are allegedly operated under the deceptive
veneer of legitimate, licensed and tax-paying nightclubs, bars,
karaoke bars, girlie houses, cocktail lounges, hotels and
motels. Petitioners insist that even the Court in the case of
Ermita-Malate Hotel and Motel Operators Association, Inc. v.
City Mayor of Manila 63 had already taken judicial notice of

the "alarming increase in the rate of prostitution, adultery and


fornication in Manila traceable in great part to existence of
motels, which provide a necessary atmosphere for clandestine
entry, presence and exit and thus become the ideal haven for
prostitutes and thrill-seekers." 64
The object of the Ordinance was, accordingly, the promotion
and protection of the social and moral values of the
community. Granting for the sake of argument that the
objectives of the Ordinance are within the scope of the City
Council's police powers, the means employed for the
accomplishment thereof were unreasonable and unduly
oppressive.
It is undoubtedly one of the fundamental duties of the City of
Manila to make all reasonable regulations looking to the
promotion of the moral and social values of the community.
However, the worthy aim of fostering public morals and the
eradication of the community's social ills can be achieved
through means less restrictive of private rights; it can be
attained by reasonable restrictions rather than by an absolute
prohibition. The closing down and transfer of businesses or
their conversion into businesses "allowed" under the
Ordinance have no reasonable relation to the accomplishment
of its purposes. Otherwise stated, the prohibition of the
enumerated establishments will not per se protect and
promote the social and moral welfare of the community; it will
not in itself eradicate the alluded social ills of prostitution,
adultery, fornication nor will it arrest the spread of sexual
disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems
with houses of ill-repute and establishments of the like which
the City Council may lawfully prohibit, 65 it is baseless and
insupportable to bring within that classification sauna parlors,
massage parlors, karaoke bars, night clubs, day clubs, super
clubs, discotheques, cabarets, dance halls, motels and inns.
This is not warranted under the accepted definitions of these
terms. The enumerated establishments are lawful pursuits
which are not per se offensive to the moral welfare of the
community.
That these are used as arenas to consummate
illicit sexual affairs and as venues to further the illegal
prostitution is of no moment. We lay stress on the acrid
truth that sexual immorality, being a human frailty, may
take place in the most innocent of places that it may even
take place in the substitute establishments enumerated
under Section 3 of the Ordinance. If the flawed logic of
the Ordinance were to be followed, in the remote instance
that an immoral sexual act transpires in a church cloister
or a court chamber, we would behold the spectacle of the
City of Manila ordering the closure of the church or court
concerned. Every house, building, park, curb, street or
even vehicles for that matter will not be exempt from the
prohibition. Simply because there are no "pure" places
where there are impure men. Indeed, even the Scripture
and the Tradition of Christians churches continually recall
the presence and universality of sin in man's history.
(Catechism of the Catholic Church, Definitive Edition, p.
101; ECCE and Word & Life Publications, Don Bosco
Compound, Makati)
The problem, it needs to be pointed out, is not the
establishment, which by its nature cannot be said to be
injurious to the health or comfort of the community and which
in itself is amoral, but the deplorable human activity that may
occur within its premises. While a motel may be used as a
venue for immoral sexual activity, it cannot for that reason
alone be punished. It cannot be classified as a house of illrepute 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; 66 and it may even
impose increased license fees. In other words, there are other
means to reasonably accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors,
massage parlors, karaoke bars, beerhouses, night clubs, day
clubs, super clubs, discotheques, cabarets, dance halls,
motels and inns in the Ermita-Malate area. In Section 3
thereof, owners and/or operators of the enumerated
establishments are given three (3) months from the date of
approval of the Ordinance within which "to wind up business
operations or to transfer to any place outside the ErmitaMalate area or convert said businesses to other kinds of
business allowable within the area." Further, it states in
Section 4 that in cases of subsequent violations of the
provisions of the Ordinance, the "premises of the erring
establishment shall be closed and padlocked permanently."
It is readily apparent that the means employed by the
Ordinance for the achievement of its purposes, the
governmental interference itself, infringes on the
constitutional guarantees of a person's fundamental right to
liberty and property. HCEcAa
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 faculties with which he has been endowed
by his Creator, subject only to such restraint as are necessary
for the common welfare." 67 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. 68
The U.S. Supreme Court in the case of Roth v. Board of
Regents, 69 sought to clarify the meaning of "liberty." It said:
While the Court has not attempted to
define with exactness the liberty . . .
guaranteed [by the Fifth and Fourteenth
Amendments], the term denotes not
merely freedom from bodily restraint but
also the right of the individual to contract,
to engage in any of the common
occupations of life, to acquire useful
knowledge, to marry, establish a home
and bring up children, to worship God
according to the dictates of his own
conscience, and generally to enjoy those
privileges long recognized . . . as essential
to the orderly pursuit of happiness by free
men. In a Constitution for a free people,
there can be no doubt that the meaning of
"liberty" must be broad indeed.
In another case, it also confirmed that liberty protected by the
due process clause includes personal decisions relating to
marriage, procreation, contraception, family relationships,
child rearing, and education. In explaining the respect the
Constitution demands for the autonomy of the person in
making these choices, the U.S. Supreme Court explained:
These matters, involving the most
intimate and personal choices a person
may make in a lifetime, choices central to
personal dignity and autonomy, are

central to the liberty protected by the


Fourteenth Amendment. At the heart of
liberty is the right to define one's own
concept of existence, of meaning, of
universe, and of the mystery of human
life. Beliefs about these matters could not
define the attributes of personhood where
they formed under compulsion of the
State. 70
Persons desirous to own, operate and patronize the
enumerated establishments under Section 1 of the Ordinance
may seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this
right to autonomy to consummate their bonds in intimate
sexual conduct within the motel's premises be it stressed
that their consensual sexual behavior does not contravene
any fundamental state policy as contained in the Constitution.
71 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.
72 Their right to liberty under the due process clause gives
them the full right to engage in their conduct without
intervention of the government, as long as they do not run
afoul of the law. Liberty should be the rule and restraint the
exception.
Liberty in the constitutional sense not only means freedom
from unlawful government restraint; it must include privacy as
well, if it is to be a repository of freedom. The right to be let
alone is the beginning of all freedom it is the most
comprehensive of rights and the right most valued by civilized
men. 73
The concept of liberty compels respect for the individual
whose claim to privacy and interference demands respect. As
the case of Morfe v. Mutuc, 74 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. 75
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. 76 The Ordinance in Section 1 thereof forbids the
running of the enumerated businesses in the Ermita-Malate
area and in Section 3 instructs its owners/operators to wind up

10

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. 77 It is intrusive and violative of the private
property rights of individuals. EHTCAa
The Constitution expressly provides in Article III, Section 9,
that "private property shall not be taken for public use without
just compensation." The provision is the most important
protection of property rights in the Constitution. This is a
restriction on the general power of the government to take
property. The constitutional provision is about ensuring that
the government does not confiscate the property of some to
give it to others. In part too, it is about loss spreading. If the
government takes away a person's property to benefit society,
then society should pay. The principal purpose of the
guarantee is "to bar the Government from forcing some
people alone to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole. 78
There are two different types of taking that can be identified.
A "possessory" taking occurs when the government
confiscates or physically occupies property. A "regulatory"
taking occurs when the government's regulation leaves no
reasonable economically viable use of the property. 79
In the landmark case of Pennsylvania Coal v. Mahon, 80 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. 81

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. 82
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. 83 A
regulation that permanently denies all economically beneficial
or productive use of land is, from the owner's point of view,
equivalent to a "taking" unless principles of nuisance or
property law that existed when the owner acquired the land
make the use prohibitable. 84 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.
85
A regulation which denies all economically beneficial or
productive use of land will require compensation under the
takings clause. Where a regulation places limitations on land
that fall short of eliminating all economically beneficial use, a
taking nonetheless may have occurred, depending on a
complex of factors including the regulation's economic effect
on the landowner, the extent to which the regulation
interferes with reasonable investment-backed expectations
and the character of government action. These inquiries are
informed by the purpose of the takings clause which is to
prevent the government from forcing some people alone to
bear public burdens which, in all fairness and justice, should
be borne by the public as a whole. 86
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. 87

The Ordinance gives the owners and operators of the


"prohibited" establishments three (3) months from its
approval within which to "wind up business operations or to
transfer to any place outside of the Ermita-Malate area or
convert said businesses to other kinds of business allowable
within the area." The directive to "wind up business
operations" amounts to a closure of the establishment, a
permanent deprivation of property, and is practically
confiscatory. Unless the owner converts his establishment to
accommodate an "allowed" business, the structure which
housed the previous business will be left empty and gathering
dust. Suppose he transfers it to another area, he will likewise
leave the entire establishment idle. Consideration must be
given to the substantial amount of money invested to build
the edifices which the owner reasonably expects to be
returned within a period of time. It is apparent that the
Ordinance leaves no reasonable economically viable use of
property in a manner that interferes with reasonable
expectations for use.
The second and third options to transfer to any place
outside of the Ermita-Malate area or to convert into allowed
businesses are confiscatory as well. The penalty of
permanent closure in cases of subsequent violations found in
Section 4 of the Ordinance is also equivalent to a "taking" of
private property.
The second option instructs the owners to abandon their
property and build another one outside the Ermita-Malate
area. In every sense, it qualifies as a taking without just
compensation with an additional burden imposed on the
owner to build another establishment solely from his coffers.
The proffered solution does not put an end to the "problem," it
merely relocates it. Not only is this impractical, it is
unreasonable, onerous and oppressive. The conversion into
allowed enterprises is just as ridiculous. How may the
respondent convert a motel into a restaurant or a coffee shop,
art gallery or music lounge without essentially destroying its
property? This is a taking of private property without due
process of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking
that should be compensated by the government. The burden
on the owner to convert or transfer his business, otherwise it
will be closed permanently after a subsequent violation should
be borne by the public as this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a
zoning ordinance. A zoning ordinance, although a valid
exercise of police power, which limits a "wholesome" property
to a use which can not reasonably be made of it constitutes
the taking of such property without just compensation. Private
property which is not noxious nor intended for noxious
purposes may not, by zoning, be destroyed without
compensation. Such principle finds no support in the
principles of justice as we know them. The police powers of
local government units which have always received broad and
liberal interpretation cannot be stretched to cover this
particular taking.
Distinction should be made between destruction from
necessity and eminent domain. It needs restating that the
property taken in the exercise of police power is destroyed
because it is noxious or intended for a noxious purpose while
the property taken under the power of eminent domain is
intended for a public use or purpose and is therefore
"wholesome." 88 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. 89
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. 90

11

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. 91
Thus, in Coates v. City of Cincinnati, 92 as cited in People v.
Nazario, 93 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. EATCcI
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, 94 the city of Dallas adopted a
comprehensive ordinance regulating "sexually oriented
businesses," which are defined to include adult arcades,
bookstores, video stores, cabarets, motels, and theaters as
well as escort agencies, nude model studio and sexual
encounter centers. Among other things, the ordinance
required that such businesses be licensed. A group of motel
owners were among the three groups of businesses that filed
separate suits challenging the ordinance. The motel owners
asserted that the city violated the due process clause by
failing to produce adequate support for its supposition that
renting room for fewer than ten (10) hours resulted in
increased crime and other secondary effects. They likewise
argued than the ten (10)-hour limitation on the rental of motel
rooms placed an unconstitutional burden on the right to
freedom of association. Anent the first contention, the U.S.
Supreme Court held that the reasonableness of the legislative
judgment combined with a study which the city considered,
was adequate to support the city's determination that motels
permitting room rentals for fewer than ten (10) hours should
be included within the licensing scheme. As regards the
second point, the Court held that limiting motel room rentals
to ten (10) hours will have no discernible effect on personal
bonds as those bonds that are formed from the use of a motel
room for fewer than ten (10) hours are not those that have
played a critical role in the culture and traditions of the nation
by cultivating and transmitting shared ideals and beliefs.

The ordinance challenged in the above-cited case merely


regulated the targeted businesses. It imposed reasonable
restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators
Association, Inc. v. City Mayor of Manila, 95 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.
96

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. 97 The
guarantee means that no person or class of persons shall be
denied the same protection of laws which is enjoyed by other
persons or other classes in like circumstances. 98 The "equal
protection of the laws is a pledge of the protection of equal
laws." 99 It limits governmental discrimination. The equal
protection clause extends to artificial persons but only insofar
as their property is concerned. 100
The Court has explained the scope of the equal protection
clause in this wise:
. . . What does it signify? To quote from
J.M. Tuason & Co. v. Land Tenure
Administration: "The ideal situation is for
the law's benefits to be available to all,
that none be placed outside the sphere of
its coverage. Only thus could chance and
favor be excluded and the affairs of men
governed by that serene and impartial
uniformity, which is of the very essence of
the idea of law." There is recognition,
however, in the opinion that what in fact
exists "cannot approximate the ideal. Nor
is the law susceptible to the reproach that
it does not take into account the realities
of the situation. The constitutional
guarantee then is not to be given a
meaning that disregards what is, what
does in fact exist. To assure that the
general welfare be promoted, which is the
end of law, a regulatory measure may cut
into the rights to liberty and property.
Those adversely affected may under such
circumstances invoke the equal protection
clause only if they can show that the
governmental act assailed, far from being
inspired by the attainment of the common
weal was prompted by the spirit of
hostility, or at the very least,
discrimination that finds no support in
reason." Classification is thus not ruled
out, it being sufficient to quote from the
Tuason decision anew "that the laws
operate equally and uniformly on all
persons under similar circumstances or
that all persons must be treated in the
same manner, the conditions not being
different, both in the privileges conferred
and the liabilities imposed. Favoritism and
undue preference cannot be allowed. For
the principle is that equal protection and
security shall be given to every person
under circumstances which, if not
identical, are analogous. If law be looked
upon in terms of burden or charges, those
that fall within a class should be treated in
the same fashion, whatever restrictions
cast on some in the group equally binding
on the rest. 101
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. 102 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. IEAacS
2)It must be germane to the purposes of
the law.

12

3)It must not be limited to existing


conditions only.
4)It must apply equally to all members of
the class. 103
In the Court's view, there are no substantial distinctions
between motels, inns, pension houses, hotels, lodging houses
or other similar establishments. By definition, all are
commercial establishments providing lodging and usually
meals and other services for the public. No reason exists for
prohibiting motels and inns but not pension houses, hotels,
lodging houses or other similar establishments. The
classification in the instant case is invalid as similar subjects
are not similarly treated, both as to rights conferred and
obligations imposed. It is arbitrary as it does not rest on
substantial distinctions bearing a just and fair relation to the
purpose of the Ordinance.

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:
xxx xxx xxx

The Court likewise cannot see the logic for prohibiting the
business and operation of motels in the Ermita-Malate area
but not outside of this area. A noxious establishment does not
become any less noxious if located outside the area.
The standard "where women are used as tools for
entertainment" is also discriminatory as prostitution one of
the hinted ills the Ordinance aims to banish is not a
profession exclusive to women. Both men and women have an
equal propensity to engage in prostitution. It is not any less
grave a sin when men engage in it. And why would the
assumption that there is an ongoing immoral activity apply
only when women are employed and be inapposite when men
are in harness? This discrimination based on gender violates
equal protection as it is not substantially related to important
government objectives. 104 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:
xxx xxx xxx
(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:
xxx xxx xxx
(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. . . .

(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:
xxx xxx xxx
(vii)Regulate the establishment,
operation, and maintenance of
any entertainment or
amusement facilities, including
theatrical performances,
circuses, billiard pools, public
dancing schools, public dance
halls, sauna baths, massage
parlors, and other places for
entertainment or amusement;
regulate such other events or
activities for amusement or
entertainment, particularly those
which tend to disturb the
community or annoy the
inhabitants, or require the
suspension or suppression of the
same; or, prohibit certain forms
of amusement or entertainment
in order to protect the social and
moral welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels,
motels, inns, pension houses, lodging houses, and other
similar establishments, the only power of the City Council to
legislate relative thereto is to regulate them to promote the
general welfare. The Code still withholds from cities the power
to suppress and prohibit altogether the establishment,
operation and maintenance of such establishments. It is well
to recall the rulings of the Court in Kwong Sing v. City of
Manila 105 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. 106
And in People v. Esguerra, 107 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

13

regulate the liquor traffic, power to


prohibit is impliedly withheld. 108
These doctrines still hold contrary to petitioners' assertion 109
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. 110
These powers, therefore, should not be confused, commingled
or consolidated as to create a conglomerated and unified
power of regulation, suppression and prohibition. 111
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. AEDcIH
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. 112 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. 113
The argument that the City Council is empowered to enact the
Ordinance by virtue of the general welfare clause of the Code
and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is
likewise without merit. On the first point, the ruling of the
Court in People v. Esguerra, 114 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. 115 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. 116
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. 117
In addition, Section 534(f) of the Code states that "All general
and special laws, acts, city charters, decrees, executive
orders, proclamations and administrative regulations, or part
or parts thereof which are inconsistent with any of the
provisions of this Code are hereby repealed or modified
accordingly." Thus, submitting to petitioners' interpretation
that the Revised Charter of Manila empowers the City Council
to prohibit motels, that portion of the Charter stating such
must be considered repealed by the Code as it is at variance
with the latter's provisions granting the City Council mere
regulatory powers. ESCacI
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. 118
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:
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,
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

14

pornographic materials or publications,


and such other activities inimical to the
welfare and morals of the inhabitants of
the city;
xxx xxx xxx
If it were the intention of Congress to confer upon the City
Council the power to prohibit the establishments enumerated
in Section 1 of the Ordinance, it would have so declared in
uncertain terms by adding them to the list of the matters it
may prohibit under the above-quoted Section. The Ordinance
now vainly attempts to lump these establishments with
houses of ill-repute and expand the City Council's powers in
the second and third clauses of Section 458 (a) 4 (vii) of the
Code in an effort to overreach its prohibitory powers. It is
evident that these establishments may only be regulated in
their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the
establishments themselves. That these establishments are
recognized legitimate enterprises can be gleaned from
another Section of the Code. Section 131 under the Title on
Local Government Taxation expressly mentioned proprietors
or operators of massage clinics, sauna, Turkish and Swedish
baths, hotels, motels and lodging houses as among the
"contractors" defined in paragraph (h) thereof. The same
Section also defined "amusement" as a "pleasurable diversion
and entertainment," "synonymous to relaxation, avocation,
pastime or fun;" and "amusement places" to include
"theaters, cinemas, concert halls, circuses and other places of
amusement where one seeks admission to entertain oneself
by seeing or viewing the show or performances." Thus, it can
be inferred that the Code considers these establishments as
legitimate enterprises and activities. It is well to recall the
maxim reddendo singula singulis which means that words in
different parts of a statute must be referred to their
appropriate connection, giving to each in its place, its proper
force and effect, and, if possible, rendering none of them
useless or superfluous, even if strict grammatical construction
demands otherwise. Likewise, where words under
consideration appear in different sections or are widely
dispersed throughout an act the same principle applies. 119
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. 120 As
succinctly illustrated in Solicitor General v. Metropolitan
Manila Authority: 121
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. 122
Petitioners contend that the Ordinance enjoys the
presumption of validity. While this may be the rule, it has
already been held that although the presumption is always in
favor of the validity or reasonableness of the ordinance, such
presumption must nevertheless be set aside when the
invalidity or unreasonableness appears on the face of the
ordinance itself or is established by proper evidence. The

exercise of police power by the local government is valid


unless it contravenes the fundamental law of the land, or an
act of the legislature, or unless it is against public policy or is
unreasonable, oppressive, partial, discriminating or in
derogation of a common right. 123
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. cHCSDa
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.
THIRD DIVISION
[G.R. No. 93891. March 11, 1991.]
POLLUTION ADJUDICATION BOARD,
petitioner, vs. COURT OF APPEALS and
SOLAR TEXTILE FINISHING
CORPORATION, respondents.
Oscar A. Pascua and Charemon Clio L. Borre for petitioner.
Leonardo A. Aurelio for respondent Solar Textile
Finishing Corp.
SYLLABUS

1.ADMINISTRATIVE LAW; POLLUTION ADJUDICATION BOARD;


MAY ISSUE CEASE AND DESIST ORDERS EX-PARTE; BASIS.
Section 7(a) of P.D. No. 984 authorized petitioner Board to
issue ex parte cease and desist orders. An ex parte cease and
desist order may be issued by the Board (a) whenever the
wastes discharged by an establishment pose an "immediate
threat to life, public health, safety or welfare, or to animal or
plant life," or (b) whenever such discharges or wastes exceed
"the allowable standards set by the [NPCC]." On the one hand,
it is not essential that the Board prove that an "immediate
threat to life, public health, safety or welfare, or to animal or
plant life" exists before an ex parte cease and desist order
may be issued. It is enough if the Board finds that the wastes
discharged do exceed "the allowable standards set by the
[NPCC]." In respect of discharges of wastes as to which
allowable standards have been set by the Commission, the
Board may issue an ex parte cease and desist order when
there is prima facie evidence of an establishment exceeding
such allowable standards. Where, however, the effluents or
discharges have not yet been the subject matter of allowable
standards set by the Commission, then the Board may act on
an ex parte basis when it finds at least prima facie proof that
the wastewater or material involved presents an "immediate
threat to life, public health, safety or welfare or to animal or
plant life." Since the applicable standards set by the
Commission existing at any given time may well not cover
every possible or imaginable kind of effluent or waste
discharge, the general standard of an "immediate threat to life

15

public health, safety or welfare, or to animal and plant life"


remains necessary.
2.POLITICAL LAW; POLICE POWER; ENACTMENT OF POLLUTION
CONTROL STATUTES AND IMPLEMENTING REGULATIONS, AN
EXERCISE THEREOF. The relevant pollution control statute
and implementing regulations were enacted and promulgated
in the exercise of that persuasive, sovereign power to protect
the safety, health, and general welfare and comfort of the
public, as well as the protection of plant and animal life,
commonly designated as the police power.
3.CONSTITUTIONAL LAW; DUE PROCESS; YIELDS TO THE
EXERCISE OF POLICE POWER. It is a constitutional common
place that the ordinary requirements of procedural due
process yield to the necessities of protecting vital public
interests like those here involved, through the exercise of
police power.
4.ADMINISTRATIVE LAW; POLLUTION ADJUDICATION BOARD;
DUE PROCESS; HOLDING OF PUBLIC HEARING AFTER EX-PARTE
ISSUANCE OF A CEASE AND DESIST ORDER, SUFFICIENT
COMPLIANCE WITH DUE PROCESS CLAUSE. Where the
establishment affected by an ex parte cease and desist order
contests the correctness of the prima facie findings of the
Board, the Board must hold a public hearing where such
establishment would have an opportunity to controvert the
basis of such ex parte order. That such an opportunity is
subsequently available is really all that is required by the due
process clause of the Constitution in situations like that we
have here.
5.REMEDIAL LAW; ACTIONS; APPEAL; PROPER
REMEDY WHERE QUESTIONED ORDER AND WRIT OF
EXECUTION WHERE LAWFUL. Solar claims finally that
the petition for certiorari was the proper remedy as the
questioned Order and Writ of Execution issued by the
Board were patent nullities. Since we have concluded that
Order and Writ of Execution were entirely within the
lawful authority of petitioner Board, the trial court did not
err when it dismissed Solar's petition for certiorari. It
follows that the proper remedy was an appeal from the
trial court to the Court of Appeals, as Solar did in fact
appeal.

RESOLUTION
FELICIANO, J p:
Petitioner Pollution Adjudication Board ("Board") asks us to
review the Decision and Resolution promulgated on 7
February 1990 and 10 May 1990, respectively, by the Court of
Appeals in C.A.-G.R. No. SP 18821 entitled "Solar Textile
Finishing Corporation v. Pollution Adjudication Board." In that
Decision and Resolution, the Court of Appeals reversed an
order of the Regional Trial Court, Quezon City, Branch 77, in
Civil Case No. Q-89-2287 dismissing private respondent Solar
Textile Finishing Corporation's ("Solar") petition for certiorari
and remanded the case to the trial court for further
proceedings.
On 22 September 1988, petitioner Board issued an ex parte
Order directing Solar immediately to cease and desist from
utilizing its wastewater pollution source installations which
were discharging untreated wastewater directly into a canal
leading to the adjacent Tullahan-Tinejeros River. The Order
signed by Hon. Fulgencio Factoran, Jr., as Board Chairman,
reads in full as follows:
"Respondent, Solar Textile Finishing
Corporation with plant and place of
business at 999 General Pascual Avenue,
Malabon, Metro Manila is involved in
bleaching, rinsing and dyeing textiles with
wastewater of about 30 gpm. being
directly discharged untreated into the
sewer. Based on findings in the
Inspections conducted on 05 November
1986 and 15 November 1986, the volume
of untreated wastewater discharged in the
final outfall outside of the plant's
compound was even greater. The result of

inspection conducted on 06 September


1988 showed that respondent's
Wastewater Treatment Plant was noted
unoperational and the combined
wastewater generated from its operation
was about 30 gallons per minute and 80%
of the wastewater was being directly
discharged into a drainage canal leading
to the Tullahan-Tinejeros River by means
of a by-pass and the remaining 20% was
channeled into the plant's existing
Wastewater Treatment Plant (WTP). Result
of the analyses of the sample taken from
the by - pass showed that the wastewater
is highly pollutive in terms of Color units,
BOD and Suspended Solids, among
others. These acts of respondent in spite
of directives to comply with the
requirements are clearly in violation of
Section 8 of Presidential Decree No. 984
and Section 103 of its Implementing Rules
and Regulations and the 1982 Effluent
Regulations.
WHEREFORE, pursuant to Section 7 of P.D.
984 and Section 38 of its Implementing
Rules and Regulations, respondent is
hereby ordered to cease and desist from
utilizing its wastewater pollution source
installations and discharging its untreated
wastewater directly into the canal leading
to the Tullahan-Tinejeros River effective
immediately upon receipt hereof and until
such time when it has fully complied with
all the requirements and until further
orders from this Board.
SO ORDERED." 1
We note that the above Order was based on findings of
several inspections of Solar's plant:
a.inspections conducted on 5 November
1986 and 12 November 1986 by the
National Pollution Control Commission
("NPCC"), the predecessor of the Board; 2
and
b.the inspection conducted on 6
September 1988 by the Department of
Environment and Natural Resources
("DENR").
The findings of these two (2) inspections were that Solar's
wastewater treatment plant was non-operational and that
its plant generated about 30 gallons per minute of
wastewater, 80% of which was being directly discharged
into a drainage canal leading to the Tullahan-Tinejeros
River. The remaining 20% of the wastewater was being
channeled through Solar's non-operational wastewater
treatment plant. Chemical analysis of samples of Solar's
effluents showed the presence of pollutants on a level in
excess of what was permissible under P.D. No. 984 and its
Implementing Regulations.
A copy of the above Order was received by Solar on 26
September 1988. A Writ of Execution issued by the Board was
received by Solar on 31 March 1989.
Meantime, Solar filed a motion for reconsideration appeal with
prayer for stay of execution of the Order dated 22 September
1988. Acting on this motion, the Board issued an Order dated
24 April 1989 allowing Solar to operate temporarily, to enable
the Board to conduct another inspection and evaluation of
Solar's wastewater treatment facilities. In the same Order, the
Board directed the Regional Executive Director of the DENR
NCR to conduct the inspection and evaluation within thirty
(30) days.
On 21 April 1989, however, Solar went to the Regional Trial
Court of Quezon City, Branch 77, on petition for certiorari with
preliminary injunction against the Board, the petition being
docketed as Civil Case No. Q-89-2287.

16

On 21 July 1989, the Regional Trial Court dismissed Solar's


petition upon two (2) grounds, i.e., that appeal and not
certiorari from the questioned Order of the Board as well as
the Writ of Execution was the proper remedy, and that the
Board's subsequent Order allowing Solar to operate
temporarily had rendered Solar's petition moot and academic.
Dissatisfied, Solar went on appeal to the Court of Appeals
which, in the Decision here assailed, reversed the Order of
dismissal of the trial court and remanded the case to that
court for further proceedings. In addition, the Court of Appeals
declared the Writ of Execution null and void. At the same time,
the Court of Appeals said in the dispositive portion of its
Decision that:
". . . Still and all, this decision is without
prejudice to whatever action the appellee
[Board] may take relative to the projected
'inspection and evaluation' of appellant's
[Solar's] water treatment facilities." 3
The Court of Appeals, in so ruling, held that certiorari was a
proper remedy since the Orders of petitioner Board may result
in great and irreparable injury to Solar; and that while the
case might be moot and academic, "larger issues" demanded
that the question of due process be settled. Petitioner Board
moved for reconsideration, without success. prcd

The Board is now before us on a Petition for Review basically


arguing that:
1.its ex parte Order dated 22 September
1988 and the Writ of Execution
were issued in accordance with
law and were not violative of the
requirements of due process; and
2.the ex parte Order and the Writ of
Execution are not the proper
subjects of a petition for
certiorari.
The only issue before us at this time is whether or not the
Court of Appeals erred in reversing the trial court on the
ground that Solar had been denied due process by the Board.
LibLex
Petitioner Board claims that under P.D. No. 984, Section 7(a),
it has legal authority to issue ex parte orders to suspend the
operations of an establishment when there is prima facie
evidence that such establishment is discharging effluents or
wastewater, the pollution level of which exceeds the
maximum permissible standards set by the NPCC (now, the
Board). Petitioner Board contends that the reports before it
concerning the effluent discharges of Solar into the TullahanTinejeros River provided prima facie evidence of violation by
Solar of Section 5 of the 1982 Effluent Code.
Solar, on the other hand, contends that under the Board's own
rules and regulations, an ex parte order may issue only if the
effluents discharged pose an "immediate threat to life, public
health; safety or welfare, or to animal and plant life." In the
instant case, according to Solar, the inspection reports before
the Board made no finding that Solar's wastewater discharged
posed such a threat.
The Court is not persuaded by Solar's contention. Section 7(a)
of P.D. No. 984 authorized petitioner Board to issue ex parte
cease and desist orders under the following circumstances:
"P.D. 984, Section 7, paragraph (a),
provides:
(a)Public Hearing . . . Provided, That
whenever the Commission finds prima
facie evidence that the discharged
sewage or wastes are of immediate threat
to life, public health, safety or welfare, or
to animal or plant life, or exceeds the
allowable standards set by the
Commission, the Commissioner may issue

an ex-parte order directing the


discontinuance of the same or the
temporary suspension or cessation of
operation of the establishment or person
generating such sewage or wastes
without the necessity of a prior public
hearing. The said ex-parte order shall be
immediately executory and shall remain
in force until said establishment or person
prevents or abates the said pollution
within the allowable standards or modified
or nullified by a competent court."
(Emphasis supplied).
We note that under the above-quoted portion of Section 7(a)
of P.D. No. 984, an ex parte cease and desist order may be
issued by the Board (a) whenever the wastes discharged by
an establishment pose an "immediate threat to life, public
health, safety or welfare, or to animal or plant life," or (b)
whenever such discharges or wastes exceed "the allowable
standards set by the [NPCC]." On the one hand, it is not
essential that the Board prove that an "immediate threat to
life, public health, safety or welfare, or to animal or plant life"
exists before an ex parte cease and desist order may be
issued. It is enough if the Board finds that the wastes
discharged do exceed "the allowable standards set by the
[NPCC]." In respect of discharges of wastes as to which
allowable standards have been set by the Commission, the
Board may issue an ex parte cease and desist order when
there is prima facie evidence of an establishment exceeding
such allowable standards. Where, however, the effluents or
discharges have not yet been the subject matter of allowable
standards set by the Commission, then the Board may act on
an ex parte basis when it finds at least prima facie proof that
the wastewater or material involved presents an "immediate
threat to life, public health, safety or welfare or to animal or
plant life." Since the applicable standards set by the
Commission existing at any given time may well not cover
every possible or imaginable kind of effluent or waste
discharge, the general standard of an "immediate threat to life
public health, safety or welfare, or to animal and plant life"
remains necessary. Cdpr
Upon the other hand, the Court must assume that the extant
allowable standards have been set by the Commission or
Board precisely in order to avoid or neutralize an "immediate
threat to life, public health, safety or welfare, or to animal or
plant life."
Section 5 of the Effluent Regulations of 1982 4 sets out the
maximum permissible levels of physical and chemical
substances which effluents from domestic wastewater
treatment plants and industrial plants must not exceed "when
discharged into bodies of water classified as Class A, B, C, D,
SB and SC in accordance with the 1978 NPCC Rules and
Regulations." The waters of Tullahan-Tinejeros River are
classified as inland waters Class D under Section 68 of the
1978 NPCC Rules and Regulations, 5 which in part provides
that:
"Section 68.Water Usage and
Classification. The quality of Philippine
waters shall be maintained in a safe and
satisfactory condition according to their
best usages. For this purpose, all water
shall be classified according to the
following beneficial usages:
(a)Fresh Surface Water.
ClassificationBest usage
xxx xxx xxx
Class DFor agriculture, irrigation,
live stock watering and
industrial cooling and
processing
xxx xxx xxx
(Emphases supplied)

17

The reports on the inspections carried on Solar's wastewater


treatment facilities on 5 and 12 November 1986 and 6
September 1988 set forth the following identical finding:
"a.For legal action in [view of] violation of
Section 103 of the implementing rules
and regulations of P.D. No. 984 and
Section 5 of the Effluent Regulations of
1982." 6

l)Total Solids1,400690
mg./l.
m)Turbidity
NTU/ppm. SiO370
The November 1986 inspections report concluded that:

Placing the maximum allowable standards set in Section 5 of


the Effluent Regulations of 1982 alongside the findings of the
November 1986 and September 1988 inspection reports, we
get the following results:
"InlandNovemberSeptember
Waters19861988
(Class C & D) 7Report 8 Report 9

"Records of the Commission show that the


plant under its previous owner, Fine Touch
Finishing Corporation, was issued a Notice
of Violation on 20 December 1985
directing same to cease and desist from
conducting dyeing operation until such
time the waste treatment plant is already
completed and operational. The new
owner Solar Textile Corporation informed
the Commission of the plant acquisition
thru its letter dated March 1986 (sic).

Station 1Station 1
a)Color in100a)Color units250125
platinum(Apparent
cobaltColor)
units
b)p H6-8.5b)pH9.38.7
c)Tempera-40c)Temperature
ture in C(C)
d)Phenols in0.1d)Phenols in
mg./l.mg./l.

The new owner was summoned to a


hearing held on 13 October 1986 based
on the adverse findings during the
inspection/water sampling test conducted
on 08 August 1986. As per instruction of
the Legal Division a reinspection/sampling test should be
conducted first before an appropriate
legal action is instituted; hence, this
inspection.
Based on the above findings, it is clear
that the new owner continuously violates
the directive of the Commission by
undertaking dyeing operation without
completing first and operating its existing
WTP. The analysis of results on water
samples taken showed that the untreated
wastewater from the firm pollutes our
water resources. In this connection, it is
recommended that appropriate legal
action be instituted immediately against
the firm . . ." 10

e)Suspended75e)Suspended34080
The September 1988 inspection report's conclusions were:
solids insolids in
mg./l.mg./l.
f)BOD in80f)BOD (5-day)1,100152
mg./lmg./l.
g)oil/Grease10g)Oil/Grease

"1.The plant was undertaking dyeing,


bleaching and rinsing operations during
the inspection. The combined wastewater
generated from the said operations was
estimated at about 30 gallons per minute.
About 80% of the wastewater was traced
directly discharged into a drainage canal
leading to the Tullahan - Tinejeros river by
means of a bypass. The remaining 20%
was channeled into the plant's existing
wastewater treatment plant (WTP).

in mg./l.mg./l.
h)Detergents5h)Detergents2.93
in mg./l."mg./l. MBAS
i)Dissolved0
Oxygen, mg./l.
j)Settleable0.41.5
Matter, mg./l.
k)Total Dis-800610
solved Solids
mg./l.

2.The WTP was noted not yet fully


operational some accessories were not
yet installed. Only the sump pit and the
holding/collecting tank are functional but
appeared seldom used. The wastewater
mentioned channeled was noted held
indefinitely into the collection tank for
primary treatment. There was no effluent
discharge [from such collection tank].
3.A sample from the bypass wastewater
was collected for laboratory analyses.
Result of the analyses show that the
bypass wastewater is polluted in terms of
color units, BOD and suspended solids,
among others. (Please see attached
laboratory result)." 11
From the foregoing reports, it is clear to this Court that there
was at least prima facie evidence before the Board that the
effluents emanating from Solar's plant exceeded the
maximum allowable levels of physical and chemical
substances set by the NPCC and that accordingly there was

18

adequate basis supporting the ex parte cease and desist order


issued by the Board. It is also well to note that the previous
owner of the plant facility Fine Touch Finishing Corporation
had been issued a Notice of Violation on 20 December 1985
directing it to cease and refrain from carrying out dyeing
operations until the water treatment plant was completed and
operational. Solar, the new owner, informed the NPCC of the
acquisition of the plant on March 1986. Solar was summoned
by the NPCC to a hearing on 13 October 1986 based on the
results of the sampling test conducted by the NPCC on 8
August 1986. Petitioner Board refrained from issuing an ex
parte cease and desist order until after the November 1986
and September 1988 re-inspections were conducted and the
violation of applicable standards was confirmed. In other
words, petitioner Board appears to have been remarkably
forbearing in its efforts to enforce the applicable standards
vis-a-vis Solar. Solar, on the other hand, seemed very casual
about its continued discharge of untreated, pollutive effluents
into the Tullahan-Tinejeros River, presumably loath to spend
the money necessary to put its Wastewater Treatment Plant
("WTP") in an operating condition. cdrep
In this connection, we note that in Technology Developers, Inc.
v. Court of Appeals, et al., 12 the Court very recently upheld
the summary closure ordered by the Acting Mayor of Sta.
Maria, Bulacan, of a pollution-causing establishment, after
finding that the records showed that:
"1.No mayor's permit had been secured.
While it is true that the matter of
determining whether there is a pollution
of the environment that requires control if
not prohibition of the operation of a
business is essentially addressed to the
then National Pollution Control
Commission of the Ministry of Human
Settlements, now the Environmental
Management Bureau of the Department of
Environment and Natural Resources, it
must be recognized that the mayor of a
town has as much responsibility to protect
its inhabitants from pollution, and by
virtue of his police power, he may deny
the application for a permit to operate a
business or otherwise close the same
unless appropriate measures are taken to
control and or avoid injury to the health of
the residents of the community from the
emission in the operation of the business.
2.The Acting Mayor, in a letter of February
16, 1989, called the attention of petitioner
to the pollution emitted by the fumes of
its plant whose offensive odor "not only
pollute the air in the locality but also
affect the health of the residents in the
area," so that petitioner was ordered to
stop its operation until further orders and
it was required to bring the following:
xxx xxx xxx
(3)Region IIIDepartment of Environment and
Natural Resources Anti-Pollution
permit. (Annex A-2, petition).
3.This action of the Acting Mayor was in
response to the complaint of the residents
of Barangay Guyong, Sta. Maria, Bulacan,
directed to the Provincial Governor
through channels (Annex A-B,
petition). . . .
4.The closure order of the Acting Mayor
was issued only after an investigation was
made by Marivic Guina who in her report
of December 8, 1988 observed that the
fumes emitted by the plant of petitioner
goes directly to the surrounding houses
and that no proper air pollution device has
been installed. (Annex A-9, petition).
xxx xxx xxx

6.While petitioner was able to present a


temporary permit to operate by the then
National Pollution Control Commission on
December 15, 1987, the permit was good
only up to May 25, 1988 (Annex A-12,
petition). Petitioner had not exerted any
effort to extend or validate its permit
much less to install any device to control
the pollution and prevent any hazard to
the health of the residents of the
community."
In the instant case, the ex parte cease and desist Order was
issued not by a local government official but by the Pollution
Adjudication Board, the very agency of the Government
charged with the task of determining whether the effluents of
a particular industrial establishment comply with or violate
applicable anti-pollution statutory and regulatory provisions.
Ex parte cease and desist orders are permitted by law and
regulations in situations like that here presented precisely
because stopping the continuous discharge of pollutive and
untreated effluents into the rivers and other inland waters of
the Philippines cannot be made to wait until protracted
litigation over the ultimate correctness or propriety of such
orders has run its full course, including multiple and
sequential appeals such as those which Solar has taken, which
of course may take several years. The relevant pollution
control statute and implementing regulations were enacted
and promulgated in the exercise of that persuasive, sovereign
power to protect the safety, health, and general welfare and
comfort of the public, as well as the protection of plant and
animal life, commonly designated as the police power. It is a
constitutional common place that the ordinary requirements
of procedural due process yield to the necessities of
protecting vital public interests like those here involved,
through the exercise of police power. The Board's ex parte
Order and Writ of Execution would, of course, have compelled
Solar temporarily to stop its plant operations, a state of affairs
Solar could in any case have avoided by simply absorbing the
bother and burden of putting its WTP on an operational basis.
Industrial establishments are not constitutionally entitled to
reduce their capitals costs and operating expenses and to
increase their profits by imposing upon the public threats and
risks to its safety, health, general welfare and comfort, by
disregarding the requirements of anti-pollution statutes and
their implementing regulations. cdll
It should perhaps be made clear the Court is not here saying
that the correctness of the ex parte Order and Writ of
Execution may not be contested by Solar in a hearing before
the Board itself. Where the establishment affected by an ex
parte cease and desist order contests the correctness of the
prima facie findings of the Board, the Board must hold a public
hearing where such establishment would have an opportunity
to controvert the basis of such ex parte order. That such an
opportunity is subsequently available is really all that is
required by the due process clause of the Constitution in
situations like that we have here. The Board's decision
rendered after the public hearing may then be tested judicially
by an appeal to the Court of Appeals in accordance with
Section 7(c) of P.D. No. 984 and Section 42 of the
Implementing Rules and Regulations. A subsequent public
hearing is precisely what Solar should have sought instead of
going to court to seek nullification of the Board's Order and
Writ of Execution and instead of appealing to the Court of
Appeals. It will be recalled that the Board in fact gave Solar
authority temporarily to continue operations until still another
inspection of its wastewater treatment facilities and then
another analysis of effluent samples could be taken and
evaluated.
Solar claims finally that the petition for certiorari was the
proper remedy as the questioned Order and Writ of Execution
issued by the Board were patent nullities. Since we have
concluded that Order and Writ of Execution were entirely
within the lawful authority of petitioner Board, the trial court
did not err when it dismissed Solar's petition for certiorari. It
follows that the proper remedy was an appeal from the trial
court to the Court of Appeals, as Solar did in fact appeal.
ACCORDINGLY, the Petition for Review is given DUE COURSE
and the Decision of the Court of Appeals dated 7 February
1990 and its Resolution dated 10 May 1990 in A.C.-G.R. No. SP
18821 are hereby SET ASIDE. The Order of petitioner Board
dated 22 September 1988 and the Writ of Execution, as well
as the decision of the trial court dated 21 July 1989, are

19

hereby REINSTATED, without prejudice to the right of Solar to


contest the correctness of the basis of the Board's Order and
Writ of Execution at a public hearing before the Board.

questioned the validity of MMDA Memorandum Circular No. TT95-001, as he claims that it was passed by the Metro Manila
Council in the absence of a quorum.

Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.

Judge Helen Bautista-Ricafort issued a temporary restraining


order on 26 September 1995, extending the validity of the
TVR as a temporary driver's license for twenty more days. A
preliminary mandatory injunction was granted on 23 October
1995, and the MMDA was directed to return the respondent's
driver's license.

SECOND DIVISION
[G.R. No. 130230. April 15, 2005.]
METROPOLITAN MANILA
DEVELOPMENT AUTHORITY, petitioner,
vs. DANTE O. GARIN, respondent.
DECISION
CHICO-NAZARIO, J p:
At issue in this case is the validity of Section 5(f) of Republic
Act No. 7924 creating the Metropolitan Manila Development
Authority (MMDA), which authorizes it to confiscate and
suspend or revoke driver's licenses in the enforcement of
traffic laws and regulations.
The issue arose from an incident involving the respondent
Dante O. Garin, a lawyer, who was issued a traffic violation
receipt (TVR) and his driver's license confiscated for parking
illegally along Gandara Street, Binondo, Manila, on 05 August
1995. The following statements were printed on the TVR:
YOU ARE HEREBY DIRECTED TO REPORT
TO THE MMDA TRAFFIC OPERATIONS
CENTER PORT AREA MANILA AFTER 48
HOURS FROM DATE OF APPREHENSION
FOR DISPOSITION/APPROPRIATE ACTION
THEREON. CRIMINAL CASE SHALL BE
FILED FOR FAILURE TO REDEEM LICENSE
AFTER 30 DAYS.
VALID AS TEMPORARY DRIVER'S LICENSE
FOR SEVEN DAYS FROM DATE OF
APPREHENSION. 1
Shortly before the expiration of the TVR's validity, the
respondent addressed a letter 2 to then MMDA Chairman
Prospero Oreta requesting the return of his driver's license,
and expressing his preference for his case to be filed in court.
Receiving no immediate reply, Garin filed the original
complaint 3 with application for preliminary injunction in
Branch 260 of the Regional Trial Court (RTC) of Paraaque, on
12 September 1995, contending that, in the absence of any
implementing rules and regulations, Sec. 5(f) of Rep. Act No.
7924 grants the MMDA unbridled discretion to deprive erring
motorists of their licenses, pre-empting a judicial
determination of the validity of the deprivation, thereby
violating the due process clause of the Constitution. The
respondent further contended that the provision violates the
constitutional prohibition against undue delegation of
legislative authority, allowing as it does the MMDA to fix and
impose unspecified and therefore unlimited fines and
other penalties on erring motorists. SaHTCE
In support of his application for a writ of preliminary
injunction, Garin alleged that he suffered and continues to
suffer great and irreparable damage because of the
deprivation of his license and that, absent any implementing
rules from the Metro Manila Council, the TVR and the
confiscation of his license have no legal basis.
For its part, the MMDA, represented by the Office of the
Solicitor General, pointed out that the powers granted to it by
Sec. 5(f) of Rep. Act No. 7924 are limited to the fixing,
collection and imposition of fines and penalties for traffic
violations, which powers are legislative and executive in
nature; the judiciary retains the right to determine the validity
of the penalty imposed. It further argued that the doctrine of
separation of powers does not preclude "admixture" of the
three powers of government in administrative agencies. 4
The MMDA also refuted Garin's allegation that the Metro
Manila Council, the governing board and policy making body
of the petitioner, has as yet to formulate the implementing
rules for Sec. 5(f) of Rep. Act No. 7924 and directed the
court's attention to MMDA Memorandum Circular No. TT-95001 dated 15 April 1995. Respondent Garin, however,

On 14 August 1997, the trial court rendered the assailed


decision 5 in favor of the herein respondent and held that:
a.There was indeed no quorum in that
First Regular Meeting of the MMDA Council
held on March 23, 1995, hence MMDA
Memorandum Circular No. TT-95-001,
authorizing confiscation of driver's
licenses upon issuance of a TVR, is void
ab initio.
b.The summary confiscation of a driver's
license without first giving the driver an
opportunity to be heard; depriving him of
a property right (driver's license) without
DUE PROCESS; not filling (sic) in Court the
complaint of supposed traffic infraction,
cannot be justified by any legislation (and
is) hence unconstitutional.
WHEREFORE, the temporary writ of
preliminary injunction is hereby made
permanent; th(e) MMDA is directed to
return to plaintiff his driver's license; th(e)
MMDA is likewise ordered to desist from
confiscating driver's license without first
giving the driver the opportunity to be
heard in an appropriate proceeding.
In filing this petition, 6 the MMDA reiterates and reinforces its
argument in the court below and contends that a license to
operate a motor vehicle is neither a contract nor a property
right, but is a privilege subject to reasonable regulation under
the police power in the interest of the public safety and
welfare. The petitioner further argues that revocation or
suspension of this privilege does not constitute a taking
without due process as long as the licensee is given the right
to appeal the revocation.
To buttress its argument that a licensee may indeed appeal
the taking and the judiciary retains the power to determine
the validity of the confiscation, suspension or revocation of
the license, the petitioner points out that under the terms of
the confiscation, the licensee has three options:
1.To voluntarily pay the imposable fine,
2.To protest the apprehension by filing a
protest with the MMDA
Adjudication Committee, or
3.To request the referral of the TVR to the
Public Prosecutor's Office.
The MMDA likewise argues that Memorandum Circular No. TT95-001 was validly passed in the presence of a quorum, and
that the lower court's finding that it had not was based on a
"misapprehension of facts," which the petitioner would have
us review. Moreover, it asserts that though the circular is the
basis for the issuance of TVRs, the basis for the summary
confiscation of licenses is Sec. 5(f) of Rep. Act No. 7924 itself,
and that such power is self-executory and does not require the
issuance of any implementing regulation or circular. SHacCD
Meanwhile, on 12 August 2004, the MMDA, through its
Chairman Bayani Fernando, implemented Memorandum
Circular No. 04, Series of 2004, outlining the procedures for
the use of the Metropolitan Traffic Ticket (MTT) scheme. Under
the circular, erring motorists are issued an MTT, which can be
paid at any Metrobank branch. Traffic enforcers may no longer
confiscate drivers' licenses as a matter of course in cases of
traffic violations. All motorists with unredeemed TVRs were

20

given seven days from the date of implementation of the new


system to pay their fines and redeem their license or vehicle
plates. 7
It would seem, therefore, that insofar as the absence of a
prima facie case to enjoin the petitioner from confiscating
drivers' licenses is concerned, recent events have overtaken
the Court's need to decide this case, which has been rendered
moot and academic by the implementation of Memorandum
Circular No. 04, Series of 2004.
The petitioner, however, is not precluded from reimplementing Memorandum Circular No. TT-95-001, or any
other scheme, for that matter, that would entail confiscating
drivers' licenses. For the proper implementation, therefore, of
the petitioner's future programs, this Court deems it
appropriate to make the following observations:
1.A license to operate a motor vehicle is a privilege that
the state may withhold in the exercise of its
police power.
The petitioner correctly points out that a license to operate a
motor vehicle is not a property right, but a privilege granted
by the state, which may be suspended or revoked by the state
in the exercise of its police power, in the interest of the public
safety and welfare, subject to the procedural due process
requirements. This is consistent with our rulings in Pedro v.
Provincial Board of Rizal 8 on the license to operate a cockpit,
Tan v. Director of Forestry 9 and Oposa v. Factoran 10 on
timber licensing agreements, and Surigao Electric Co., Inc. v.
Municipality of Surigao 11 on a legislative franchise to operate
an electric plant.
Petitioner cites a long list of American cases to prove this
point, such as State ex. Rel. Sullivan, 12 which states in part
that, "the legislative power to regulate travel over the
highways and thoroughfares of the state for the general
welfare is extensive. It may be exercised in any reasonable
manner to conserve the safety of travelers and pedestrians.
Since motor vehicles are instruments of potential danger,
their registration and the licensing of their operators have
been required almost from their first appearance. The right to
operate them in public places is not a natural and
unrestrained right, but a privilege subject to reasonable
regulation, under the police power, in the interest of the public
safety and welfare. The power to license imports further
power to withhold or to revoke such license upon
noncompliance with prescribed conditions."
Likewise, the petitioner quotes the Pennsylvania Supreme
Court in Commonwealth v. Funk, 13 to the effect that:
"Automobiles are vehicles of great speed and power. The use
of them constitutes an element of danger to persons and
property upon the highways. Carefully operated, an
automobile is still a dangerous instrumentality, but, when
operated by careless or incompetent persons, it becomes an
engine of destruction. The Legislature, in the exercise of the
police power of the commonwealth, not only may, but must,
prescribe how and by whom motor vehicles shall be operated
on the highways. One of the primary purposes of a system of
general regulation of the subject matter, as here by the
Vehicle Code, is to insure the competency of the operator of
motor vehicles. Such a general law is manifestly directed to
the promotion of public safety and is well within the police
power."
The common thread running through the cited cases is that it
is the legislature, in the exercise of police power, which has
the power and responsibility to regulate how and by whom
motor vehicles may be operated on the state highways.
HIAEcT
2.The MMDA is not vested with police power.
In Metro Manila Development Authority v. Bel-Air Village
Association, Inc., 14 we categorically stated that Rep. Act No.
7924 does not grant the MMDA with police power, let alone
legislative power, and that all its functions are administrative
in nature.
The said case also involved the herein petitioner MMDA which
claimed that it had the authority to open a subdivision street
owned by the Bel-Air Village Association, Inc. to public traffic

because it is an agent of the state endowed with police power


in the delivery of basic services in Metro Manila. From this
premise, the MMDA argued that there was no need for the City
of Makati to enact an ordinance opening Neptune Street to the
public.
Tracing the legislative history of Rep. Act No. 7924 creating
the MMDA, we concluded that the MMDA is not a local
government unit or a public corporation endowed with
legislative power, and, unlike its predecessor, the Metro
Manila Commission, it has no power to enact ordinances for
the welfare of the community. Thus, in the absence of an
ordinance from the City of Makati, its own order to open the
street was invalid.
We restate here the doctrine in the said decision as it applies
to the case at bar: police power, as an inherent attribute of
sovereignty, is the power vested by the Constitution in the
legislature to make, ordain, and establish all manner of
wholesome and reasonable laws, statutes and ordinances,
either with penalties or without, not repugnant to the
Constitution, as they shall judge to be for the good and
welfare of the commonwealth, and for the subjects of the
same.
Having been lodged primarily in the National Legislature, it
cannot be exercised by any group or body of individuals not
possessing legislative power. The National Legislature,
however, may delegate this power to the president and
administrative boards as well as the lawmaking bodies of
municipal corporations or local government units (LGUs).
Once delegated, the agents can exercise only such legislative
powers as are conferred on them by the national lawmaking
body.
Our Congress delegated police power to the LGUs in the Local
Government Code of 1991. 15 A local government is a
"political subdivision of a nation or state which is constituted
by law and has substantial control of local affairs." 16 Local
government units are the provinces, cities, municipalities and
barangays, which exercise police power through their
respective legislative bodies.
Metropolitan or Metro Manila is a body composed of several
local government units. With the passage of Rep. Act No. 7924
in 1995, Metropolitan Manila was declared as a "special
development and administrative region" and the
administration of "metro-wide" basic services affecting the
region placed under "a development authority" referred to as
the MMDA. Thus:
. . . [T]he powers of the MMDA are limited
to the following acts: formulation,
coordination, regulation, implementation,
preparation, management, monitoring,
setting of policies, installation of a system
and administration. There is no syllable
in R. A. No. 7924 that grants the
MMDA police power, let alone
legislative power. Even the Metro
Manila Council has not been
delegated any legislative power.
Unlike the legislative bodies of the local
government units, there is no provision
in R. A. No. 7924 that empowers the
MMDA or its Council to "enact
ordinances, approve resolutions and
appropriate funds for the general
welfare" of the inhabitants of Metro
Manila. The MMDA is, as termed in the
charter itself, a "development authority."
It is an agency created for the
purpose of laying down policies and
coordinating with the various
national government agencies,
people's organizations, nongovernmental organizations and the
private sector for the efficient and
expeditious delivery of basic services
in the vast metropolitan area. All its
functions are administrative in
nature and these are actually summed
up in the charter itself, viz:

21

"Sec. 2.Creation of the


Metropolitan Manila
Development Authority. . . .
The MMDA shall perform
planning, monitoring and
coordinative functions, and in the
process exercise regulatory and
supervisory authority over the
delivery of metro-wide services
within Metro Manila, without
diminution of the autonomy of
the local government units
concerning purely local matters."
IcHSCT
xxx xxx xxx
Clearly, the MMDA is not a political unit of
government. The power delegated to the
MMDA is that given to the Metro Manila
Council to promulgate administrative
rules and regulations in the
implementation of the MMDA's functions.
There is no grant of authority to
enact ordinances and regulations for
the general welfare of the
inhabitants of the metropolis. 17
(footnotes omitted, emphasis supplied)

the individual LGUs, especially with regard to transport and


traffic management, 23 and we are aware of the valiant
efforts of the petitioner to untangle the increasingly trafficsnarled roads of Metro Manila. But these laudable intentions
are limited by the MMDA's enabling law, which we can but
interpret, and petitioner must be reminded that its efforts in
this respect must be authorized by a valid law, or ordinance,
or regulation arising from a legitimate source. AEDISC
WHEREFORE, the petition is dismissed.
SO ORDERED.
Puno, Austria-Martinez, Callejo, Sr. and Tinga, JJ., concur.

SECOND DIVISION
[G.R. No. 126102. December 4, 2000.]
ORTIGAS & CO. LTD., petitioner, vs.
THE COURT OF APPEALS and ISMAEL
G. MATHAY III, respondents.
Atty. Eulogio R. Rodriguez for petitioner.
Puhawan Aldon & Associates Law Offices for private
respondent.

Therefore, insofar as Sec. 5(f) of Rep. Act No. 7924 is


understood by the lower court and by the petitioner to grant
the MMDA the power to confiscate and suspend or revoke
drivers' licenses without need of any other legislative
enactment, such is an unauthorized exercise of police power.
3.Sec. 5(f) grants the MMDA with the duty to enforce
existing traffic rules and regulations.
SYNOPSIS
Section 5 of Rep. Act No. 7924 enumerates the "Functions and
Powers of the Metro Manila Development Authority." The
contested clause in Sec. 5(f) states that the petitioner shall
"install and administer a single ticketing system, fix, impose
and collect fines and penalties for all kinds of violations of
traffic rules and regulations, whether moving or nonmoving in
nature, and confiscate and suspend or revoke drivers' licenses
in the enforcement of such traffic laws and regulations, the
provisions of Rep. Act No. 4136 18 and P.D. No. 1605 19 to the
contrary notwithstanding," and that "(f)or this purpose, the
Authority shall enforce all traffic laws and regulations in Metro
Manila, through its traffic operation center, and may deputize
members of the PNP, traffic enforcers of local government
units, duly licensed security guards, or members of nongovernmental organizations to whom may be delegated
certain authority, subject to such conditions and requirements
as the Authority may impose."
Thus, where there is a traffic law or regulation validly enacted
by the legislature or those agencies to whom legislative
powers have been delegated (the City of Manila in this case),
the petitioner is not precluded and in fact is duty-bound
to confiscate and suspend or revoke drivers' licenses in the
exercise of its mandate of transport and traffic management,
as well as the administration and implementation of all traffic
enforcement operations, traffic engineering services and
traffic education programs. 20
This is consistent with our ruling in Bel-Air that the MMDA is a
development authority created for the purpose of laying down
policies and coordinating with the various national
government agencies, people's organizations, nongovernmental organizations and the private sector, which may
enforce, but not enact, ordinances.
This is also consistent with the fundamental rule of statutory
construction that a statute is to be read in a manner that
would breathe life into it, rather than defeat it, 21 and is
supported by the criteria in cases of this nature that all
reasonable doubts should be resolved in favor of the
constitutionality of a statute. 22
A last word. The MMDA was intended to coordinate services
with metro-wide impact that transcend local political
boundaries or would entail huge expenditures if provided by

Petitioner Ortigas sold to the Hermosos a parcel of land in


Greenhills Subdivision. The contract of sale provided that the
lot will be used for single-family residential building only and
this was annotated at the back of the title of the lot. In 1981,
the Metropolitan Commission enacted MMC Ordinance No. 8101 reclassifying as a commercial zone the stretch of Ortigas
Avenue from Roosevelt Street to Madison Street. Subsequently
in 1984, private respondent Mathay III leased the lot from
Hermoso and constructed a commercial building for Greenhills
Autohaus, Inc., a car sales company.
Petitioner filed Civil Case No. 4 seeking to enjoin the building
by respondent of structure on the lot and sought the
demolition of the commercial structure for having violated the
terms and conditions of the Deed of Sale. The trial court
issued the injunctive order ruling that the ordinance should be
given prospective application. On certiorari, however, the CA
granted the petition, ruling that the trial court gravely abused
its discretion in refusing to treat MMC Ordinance No. 81-01 as
applicable to Civil Case No. 64931. CA held that the ordinance
effectively nullified the restrictions allowing only residential
use of the property in question.
In this petition, petitioner claims that even with the zoning
ordinance, the seller and buyer of the re-classified lot can
voluntarily agree to an exclusive residential use thereof; and
that respondent Mathay III as a mere lessee of the lot in
question, is a total stranger to the deed of sale and is thus
barred from questioning the condition of said deed.
The Supreme Court denied the petition, ruling: that while as a
rule, laws are to be construed as having only prospective
operation, one exception is a law which involves police power,
which could be given retroactive effect and may reasonably
impair vested rights or contracts; that the MMC Ordinance No.
81-01 has been held to be a legitimate police power measure
to which the non-impairment of contracts or vested rights
clauses will have to yield; and that Mathay III in this case is
clearly a real party in interest because he holds the lot
pursuant to a valid lease and it is his building of a commercial
structure which petitioner seeks to enjoin.
SYLLABUS

22

1.STATUTORY CONSTRUCTION; LAWS ARE GENERALLY GIVEN


PROSPECTIVE APPLICATION; LAW WHICH INVOLVES POLICE
POWER IS AN EXCEPTION. In general, we agree that laws
are to be construed as having only prospective operation. Lex
prospicit, non respicit. Equally settled, only laws existing at
the time of the execution of a contract are applicable thereto
and are not later statutes, unless the latter are specifically
intended to have a retroactive effect. A later law which
enlarges, abridges, or in any manner changes the intent of the
parties to the contract necessarily impairs the contract itself
and cannot be given retroactive effect without violating the
constitutional prohibition against impairment of contracts.
But, the foregoing principles do admit of certain exceptions.
One involves police power. A law enacted in the exercise of
police power to regulate or govern certain activities or
transactions could be given retroactive effect and may
reasonably impair vested rights or contracts. Police power
legislation is applicable not only to future contracts, but
equally to those already in existence. Nonimpairment of
contracts or vested rights clauses will have to yield to the
superior and legitimate exercise by the State of police power
to promote the health, morals, peace, education, good order,
safety, and general welfare of the people. Moreover, statutes
in exercise of valid police power must be read into every
contract.
2.CONSTITUTIONAL LAW; POLICE POWER; CONTRACTUAL
STIPULATIONS AND VESTED RIGHTS MUST YIELD TO POLICE
POWER; CASE AT BAR. Noteworthy, in Sangalang vs.
Intermediate Appellate Court, we already upheld MMC
Ordinance No. 81-01 as a legitimate police power measure.
Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank &
Trust Co., 94 SCRA 533 (1979), the contractual stipulations
annotated on the Torrens Title, on which Ortigas relies, must
yield to the ordinance. When that stretch of Ortigas Avenue
from Roosevelt Street to Madison Street was reclassified as a
commercial zone by the Metropolitan Manila Commission in
March 1981, the restrictions in the contract of sale between
Ortigas and Hermoso, limiting all construction on the disputed
lot to single-family residential buildings, were deemed
extinguished by the retroactive operation of the zoning
ordinance and could no longer be enforced. While our legal
system upholds the sanctity of contract so that a contract is
deemed law between the contracting parties, nonetheless,
stipulations in a contract cannot contravene "law, morals,
good customs, public order, or public policy." Otherwise such
stipulations would be deemed null and void.
3.REMEDIAL LAW; CIVIL PROCEDURE; REAL PARTY IN
INTEREST; LESSEE WHO BUILT COMMERCIAL STRUCTURE
SOUGHT TO BE DEMOLISHED IS A REAL PARTY IN INTEREST.
By real interest is meant a present substantial interest, as
distinguished from a mere expectancy or a future, contingent,
subordinate, or consequential interest. Tested by the foregoing
definition, private respondent in this case is clearly a real
party in interest. It is not disputed that he is in possession of
the lot pursuant to valid lease. He is a possessor in the
concept of a "holder of the thing" under Article 525 of the Civil
Code. He was impleaded as a defendant in the amended
complaint in Civil Case No. 64931. Further, what petitioner
seeks to enjoin is the building by respondent of a commercial
structure on the lot. Clearly, it is private respondent's acts
which are in issue, and his interest in said issue cannot be a
mere incidental interest. In its amended complaint, petitioner
prayed for, among others, judgment "ordering the demolition
of all improvements illegally built on the lot in question."
These show that it is petitioner Mathay III, doing business as
"Greenhills Autohaus, Inc.," and not only the Hermosos, who
will be adversely affected by the court's decree. ACEIac
DECISION
QUISUMBING, J p:
This petition seeks to reverse the decision of the Court of
Appeals, dated March 25, 1996, in CA-G.R. SP No. 39193,
which nullified the writ of preliminary injunction issued by the
Regional Trial Court of Pasig City, Branch 261, in Civil Case No.
64931. It also assails the resolution of the appellate court,
dated August 13, 1996, denying petitioner's motion for
reconsideration. ATcEDS
The facts of this case, as culled from the records, are as
follows:

On August 25, 1976, petitioner Ortigas & Company sold to


Emilia Hermoso, a parcel of land known as Lot 1, Block 21,
Psd-66759, with an area of 1,508 square meters, located in
Greenhills Subdivision IV, San Juan, Metro Manila, and covered
by Transfer Certificate of Title No. 0737. The contract of sale
provided that the lot:
1.. . . (1) be used exclusively . . . for
residential purposes only, and
not more than one single-family
residential building will be
constructed thereon, . . .
xxx xxx xxx
6.The BUYER shall not erect . . . any sign
or billboard on the roof . . . for
advertising purposes . . .
xxx xxx xxx
11.No single-family residential building
shall be erected . . . until the
building plans, specification . . .
have been approved by the
SELLER . . .
xxx xxx xxx
14.. . . restrictions shall run with the land
and shall be construed as real
covenants until December 31,
2025 when they shall cease and
terminate . . . 1
These and the other conditions were duly annotated on the
certificate of title issued to Emilia.
In 1981, the Metropolitan Manila Commission (now
Metropolitan Manila Development Authority) enacted MMC
Ordinance No. 81-01, also known as the Comprehensive
Zoning Area for the National Capital Region. The ordinance
reclassified as a commercial area a portion of Ortigas Avenue
from Madison to Roosevelt Streets of Greenhills Subdivision
where the lot is located.
On June 8, 1984, private respondent Ismael Mathay III leased
the lot from Emilia Hermoso and J.P. Hermoso Realty Corp..
The lease contract did not specify the purposes of the lease.
Thereupon, private respondent constructed a single story
commercial building for Greenhills Autohaus, Inc., a car sales
company.
On January 18, 1995, petitioner filed a complaint against
Emilia Hermoso with the Regional Trial Court of Pasig, Branch
261. Docketed as Civil Case No. 64931, the complaint sought
the demolition of the said commercial structure for having
violated the terms and conditions of the Deed of Sale.
Complainant prayed for the issuance of a temporary
restraining order and a writ of preliminary injunction to
prohibit petitioner from constructing the commercial building
and/or engaging in commercial activity on the lot. The
complaint was later amended to implead Ismael G. Mathay III
and J.P. Hermoso Realty Corp., which has a ten percent (10%)
interest in the lot.
In his answer, Mathay III denied any knowledge of the
restrictions on the use of the lot and filed a cross-claim
against the Hermosos.
On June 16, 1995, the trial court issued the writ of preliminary
injunction. On June 29, 1995, Mathay III moved to set aside
the injunctive order, but the trial court denied the motion.
Mathay III then filed with the Court of Appeals a special civil
action for certiorari, docketed as CA-G.R. SP No. 39193,
ascribing to the trial court grave abuse of discretion in issuing
the writ of preliminary injunction. He claimed that MMC
Ordinance No. 81-01 classified the area where the lot was
located as commercial area and said ordinance must be read
into the August 25, 1976 Deed of Sale as a concrete exercise
of police power.

23

Ortigas and Company averred that inasmuch as the


restrictions on the use of the lot were duly annotated on the
title it issued to Emilia Hermoso, said restrictions must prevail
over the ordinance, specially since these restrictions were
agreed upon before the passage of MMC Ordinance No. 81-01.
On March 25, 1996, the appellate court disposed of the case
as follows:
WHEREFORE, in light of the foregoing, the
petition is hereby GRANTED. The assailed
orders are hereby nullified and set aside.
SO ORDERED. 2
In finding for Mathay III, the Court of Appeals held that the
MMC Ordinance No. 81-01 effectively nullified the restrictions
allowing only residential use of the property in question.
Ortigas seasonably moved for reconsideration, but the
appellate court denied it on August 13, 1996.
Hence, the instant petition.
In its Memorandum, petitioner now submits that the "principal
issue in this case is whether respondent Court of Appeals
correctly set aside the Order dated June 16, 1995 of the trial
court which issued the writ of preliminary injunction on the
sole ground that MMC Ordinance No. 81-01 nullified the
building restriction imposing exclusive residential use on the
property in question." 3 It also asserts that "Mathay III lacks
legal capacity to question the validity of conditions of the
deed of sale; and he is barred by estoppel or waiver to raise
the same question like his principals, the owners." 4 Lastly, it
avers that the appellate court "unaccountably failed to
address" several questions of fact.
Principally, we must resolve the issue of whether the Court of
Appeals erred in holding that the trial court committed grave
abuse of discretion when it refused to apply MMC Ordinance
No. 81-01 to Civil Case No. 64931.
But first, we must address petitioner's allegation that the
Court of Appeals "unaccountably failed to address" questions
of fact. For basic is the rule that factual issues may not be
raised before this Court in a petition for review and this Court
is not duty-bound to consider said questions. 5 CA-G.R. SP No.
39193 was a special civil action for certiorari, and the
appellate court only had to determine if the trial court
committed grave abuse of discretion amounting to want or
excess of jurisdiction in issuing the writ of preliminary
injunction. Thus, unless vital to our determination of the issue
at hand, we shall refrain from further consideration of factual
questions.
Petitioner contends that the appellate court erred in limiting
its decision to the cited zoning ordinance. It avers that a
contractual right is not automatically discarded once a claim is
made that it conflicts with police power. Petitioner submits
that the restrictive clauses in the questioned contract is not in
conflict with the zoning ordinance. For one, according to
petitioner, the MMC Ordinance No. 81-01 did not prohibit the
construction of residential buildings. Petitioner argues that
even with the zoning ordinance, the seller and buyer of the reclassified lot can voluntarily agree to an exclusive residential
use thereof. Hence, petitioner concludes that the Court of
Appeals erred in holding that the condition imposing exclusive
residential use was effectively nullified by the zoning
ordinance. EcHAaS
In its turn, private respondent argues that the appellate court
correctly ruled that the trial court had acted with grave abuse
of discretion in refusing to subject the contract to the MMC
Ordinance No. 81-01. He avers that the appellate court
properly held the police power superior to the non-impairment
of contract clause in the Constitution. He concludes that the
appellate court did not err in dissolving the writ of preliminary
injunction issued by the trial court in excess of its jurisdiction.
We note that in issuing the disputed writ of preliminary
injunction, the trial court observed that the contract of sale
was entered into in August 1976, while the zoning ordinance
was enacted only in March 1981. The trial court reasoned that

since private respondent had failed to show that MMC


Ordinance No. 81-01 had retroactive effect, said ordinance
should be given prospective application only, 6 citing Co vs.
Intermediate Appellate Court, 162 SCRA 390 (1988).
In general, we agree that laws are to be construed as having
only prospective operation. Lex prospicit, non respicit. Equally
settled, only laws existing at the time of the execution of a
contract are applicable thereto and not later statutes, unless
the latter are specifically intended to have retroactive effect. 7
A later law which enlarges, abridges, or in any manner
changes the intent of the parties to the contract necessarily
impairs the contract itself 8 and cannot be given retroactive
effect without violating the constitutional prohibition against
impairment of contracts. 9
But, the foregoing principles do admit of certain exceptions.
One involves police power. A law enacted in the exercise of
police power to regulate or govern certain activities or
transactions could be given retroactive effect and may
reasonably impair vested rights or contracts. Police power
legislation is applicable not only to future contracts, but
equally to those already in existence. 10 Non-impairment of
contracts or vested rights clauses will have to yield to the
superior and legitimate exercise by the State of police power
to promote the health, morals, peace, education, good order,
safety, and general welfare of the people. 11 Moreover,
statutes in exercise of valid police power must be read into
every contract. 12 Noteworthy, in Sangalang vs. Intermediate
Appellate Court, 13 we already upheld MMC Ordinance No.
81-01 as a legitimate police power measure.
The trial court's reliance on the Co vs. IAC, 14 is misplaced. In
Co, the disputed area was agricultural and Ordinance No. 8101 did not specifically provide that "it shall have retroactive
effect so as to discontinue all rights previously acquired over
lands located within the zone which are neither residential nor
light industrial in nature," 15 and stated with respect to
agricultural areas covered that "the zoning ordinance should
be given prospective operation only." 16 The area in this case
involves not agricultural but urban residential land. Ordinance
No. 81-01 retroactively affected the operation of the zoning
ordinance in Greenhills by reclassifying certain locations
therein as commercial.
Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank &
Trust Co., 94 SCRA 533 (1979), the contractual stipulations
annotated on the Torrens Title, on which Ortigas relies, must
yield to the ordinance. When that stretch of Ortigas Avenue
from Roosevelt Street to Madison Street was reclassified as a
commercial zone by the Metropolitan Manila Commission in
March 1981, the restrictions in the contract of sale between
Ortigas and Hermoso, limiting all construction on the disputed
lot to single-family residential buildings, were deemed
extinguished by the retroactive operation of the zoning
ordinance and could no longer be enforced. While our legal
system upholds the sanctity of contract so that a contract is
deemed law between the contracting parties, 17 nonetheless,
stipulations in a contract cannot contravene "law, morals,
good customs, public order, or public policy." 18 Otherwise
such stipulations would be deemed null and void. Respondent
court correctly found that the trial court committed in this
case a grave abuse of discretion amounting to want of or
excess of jurisdiction in refusing to treat Ordinance No. 81-01
as applicable to Civil Case No. 64931. In resolving matters in
litigation, judges are not only duty-bound to ascertain the
facts and the applicable laws, 19 they are also bound by their
oath of office to apply the applicable law. 20
As a secondary issue, petitioner contends that respondent
Mathay III, as a mere lessee of the lot in question, is a total
stranger to the deed of sale and is thus barred from
questioning the conditions of said deed. Petitioner points out
that the owners of the lot voluntarily agreed to the restrictions
on the use of the lot and do not question the validity of these
restrictions. Petitioner argues that Mathay III as a lessee is
merely an agent of the owners, and could not override and
rise above the status of his principals. Petitioner submits that
he could not have a higher interest than those of the owners,
the Hermosos, and thus had no locus standi to file CA-G.R. SP
No. 39193 to dissolve the injunctive writ issued by the RTC of
Pasig City.
For his part, private respondent argues that as the lessee who
built the commercial structure, it is he and he alone who
stands to be either benefited or injured by the results of the

24

judgment in Civil Case No. 64931. He avers he is the party


with real interest in the subject matter of the action, as it
would be his business, not the Hermosos', which would suffer
had not the respondent court dissolved the writ of preliminary
injunction.
A real party in interest is defined as "the party who stands to
be benefited or injured by the judgment or the party entitled
to the avails of the suit." "Interest" within the meaning of the
rule means material interest, an interest in issue and to be
affected by the decree, as distinguished from mere interest in
the question involved, or a mere incidental interest. 21 By real
interest is meant a present substantial interest, as
distinguished from a mere expectancy or a future, contingent,
subordinate, or consequential interest. 22
Tested by the foregoing definition, private respondent in this
case is clearly a real party in interest. It is not disputed that he
is in possession of the lot pursuant to a valid lease. He is a
possessor in the concept of a "holder of the thing" under
Article 525 of the Civil Code. 23 He was impleaded as a
defendant in the amended complaint in Civil Case No. 64931.
Further, what petitioner seeks to enjoin is the building by
respondent of a commercial structure on the lot. Clearly, it is
private respondent's acts which are in issue, and his interest
in said issue cannot be a mere incidental interest. In its
amended complaint, petitioner prayed for, among others,
judgment "ordering the demolition of all improvements
illegally built on the lot in question." 24 These show that it is
petitioner Mathay III, doing business as "Greenhills Autohaus,
Inc.," and not only the Hermosos, who will be adversely
affected by the court's decree.
Petitioner also cites the rule that a stranger to a contract has
no rights or obligations under it, 25 and thus has no standing
to challenge its validity. 26 But in seeking to enforce the
stipulations in the deed of sale, petitioner impleaded private
respondent as a defendant. Thus petitioner must recognize
that where a plaintiff has impleaded a party as a defendant,
he cannot subsequently question the latter's standing in
court. 27
WHEREFORE, the instant petition is DENIED. The challenged
decision of the Court of Appeals dated March 25, 1996, as well
as the assailed resolution of August 13, 1996, in CA-G.R. SP
No. 39193 is AFFIRMED. Costs against petitioner.
SO ORDERED.
Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ ., concur.
EN BANC
[G.R. No. 119694. May 22, 1995.]
PHILIPPINE PRESS INSTITUTE, INC., for and in
behalf of 139 members, represented by its
President Amado P. Macasaet and its Executive
Director Ermin F. Garcia, Jr., petitioner, vs.
COMMISSION ON ELECTIONS, respondent.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; PROHIBITION


AGAINST TAKING OF PRIVATE PROPERTY FOR PUBLIC USE
WITHOUT JUST COMPENSATION; COMPELLING PUBLISHERS TO
"DONATE" COMELEC SPACE, A VIOLATION OF. To compel
print media companies to donate "Comelec space" of the
dimensions specified in Section 2 of Resolution No. 2722 (not
less than one-half page), amounts to "taking" of private
personal property for public use or purposes. Section 2 failed
to specify the intended frequency of such compulsory
"donation": only once during the period from 6 March 1995 (or
21 March 1995) until 12 May 1995? or everyday or once a
week? or as often as Comelec may direct during the same
period? The extent of the taking or deprivation is not
insubstantial; this is not a case of a de minimis temporary
limitation or restraint upon the use of private property. The
monetary value of the compulsory "donation," measured by

the advertising rates ordinarily charged by newspaper


publishers whether in cities or in non-urban areas, may be
very substantial indeed. The taking of private property for
public use is, of course, authorized by the Constitution, but
not without payment of "just compensation" (Article III,
Section 9). And apparently the necessity of paying
compensation for "Comelec space" is precisely what is sought
to be avoided by respondent Commission, whether Section 2
of Resolution No. 2772 is read as petitioner PPI reads it, as an
assertion of authority to require newspaper publishers to
"donate" free print space for Comelec purposes, or as an
exhortation, or perhaps an appeal, to publishers to donate
free print space, as Section 1 of Resolution No. 2772-A
attempts to suggest. The threshold requisites for a lawful
taking of private property for public use need to be examined
here: one is the necessity for the taking; another is the legal
authority to effect the taking. The element of necessity for the
taking has not been shown by respondent Comelec. It has not
been suggested that the members of PPI are unwilling to sell
print space at their normal rates to Comelec for election
purposes. Indeed, the unwillingness or reluctance of Comelec
to buy print space lies at the heart of the problem. Similarly, it
has not been suggested, let alone demonstrated, that
Comelec has been granted the power of eminent domain
either by the Constitution or by the legislative authority. A
reasonable relationship between that power and the
enforcement and administration of election laws by Comelec
must be shown; it is not casually to be assumed. . . . Section 2
does not constitute a valid exercise of the power of eminent
domain.
2. ID.; ID.; ID.; ID.; PUBLIC FUNDS, NOT PUBLISHERS SOLELY,
SHOULD BEAR COSTS FOR PUBLIC INFORMATION OF
ELECTORAL PROCESSES. The ruling here laid down by the
Court is entirely in line with the theory of democratic
representative government. The economic costs of informing
the general public about the qualifications and programs of
those seeking elective office are most appropriately
distributed as widely as possible throughout our society by the
utilization of public funds, especially funds raised by taxation,
rather than cast solely on one small sector of society, i.e.,
print media enterprises. The benefits which flow from a
heightened level of information on and the awareness of the
electoral process are commonly thought to be communitywide; the burdens should be allocated on the same basis.
3. ID.; POLICE POWER; REQUISITES FOR A VALID EXERCISE
THEREOF NOT COMPLIED WITH IN CASE AT BAR. As earlier
noted, the Solicitor General also contended that Section 2 of
Resolution No. 2772, even if read as compelling publishers to
"donate" "Comelec space," may be sustained as a valid
exercise of the police power of the state. This argument was,
however, made too casually to require prolonged
consideration on our part. Firstly, there was no effort (and
apparently no inclination on the part of Comelec) to show that
the police power essentially a power of legislation has
been constitutionally delegated to respondent Commission.
Secondly, while private property may indeed be validly taken
in the legitimate exercise of the police power of the state,
there was no attempt to show compliance in the instant case
with the requisites of a lawful taking under the police power.
Section 2 of Resolution No. 2772 is a blunt and heavy
instrument that purports, without a showing of existence of a
national emergency or other imperious public necessity,
indiscriminately and without regard to the individual business
condition of particular newspapers or magazines located in
differing parts of the country, to take private property of
newspaper or magazine publishers. No attempt was made to
demonstrate that a real and palpable or urgent necessity for
the taking of print space confronted the Comelec and that
Section 2 of Resolution No. 2772 was itself the only
reasonable and calibrated response to such necessity
available to the Comelec. Section 2 does not constitute a valid
exercise of the police power of the State.
4. ID.; SUPREME COURT; POWER OF JUDICIAL REVIEW;
CONSTITUTIONALITY OF SEC. 8 COMELEC RESOLUTION NO.
2772, WITHOUT ACTUAL CONTROVERSY, IS NOT RIPE FOR
JUDICIAL REVIEW; CASE AT BAR. Section 8 of Resolution No.
2772 should be viewed in the context of our decision in
National Press Club v. Commission on Elections. There the
Court sustained the constitutionality of Section 11 (b) of R.A.
No. 6646, known as the Electoral Reforms Law of 1987, which
prohibits the sale or donation of print space and airtime for
campaign or other political purposes, except to the Comelec.
In doing so, the Court carefully distinguished (a) paid political
advertisements which are reached by the prohibition of
Section 11 (b), from (b) the reporting of news, commentaries

25

and expressions of belief or opinion by reporters,


broadcasters, editors, commentators or columnists which fall
outside the scope of Section 11 (b) and which are protected
by the constitutional guarantees of freedom of speech and of
the press. . . . Section 8 of Resolution No. 2772 appears to
represent the effort of the Comelec to establish a guideline for
implementation of the above-quoted distinction and doctrine
in National Press Club, an effort not blessed with evident
success. Section 2 of Resolution No. 2772-A while possibly
helpful, does not add substantially to the utility of Section 8 of
Resolution No. 2772. The distinction between paid political
advertisements on the one hand and news reports,
commentaries and expressions of belief or opinion by
reporters, broadcasters, editors, etc. on the other hand, can
realistically be given operative meaning only in actual cases
or controversies, on a case-to-case basis, in terms of very
specific sets of facts. At all events, the Court is bound to note
that PPI has failed to allege any specific affirmative action on
the part of Comelec designed to enforce or implement Section
8. PPI has not claimed that it or any of its members has
sustained actual or imminent injury by reason of Comelec
action under Section 8. Put a little differently, the Court
considers that the precise constitutional issue here sought to
be raised whether or not Section 8 of Resolution No. 2772
constitutes a permissible exercise of the Comelec's power
under Article IX, Section 4 of the Constitution . . . is not ripe
for judicial review for lack of an actual case or controversy
involving, as the very lis mota thereof, the constitutionality of
Section 8.

RESOLUTION
FELICIANO, J p:
The Philippine Press Institute, Inc. ("PPI") is
before this Court assailing the constitutional validity of
Resolution No. 2772 issued by respondent Commission on
Elections ("Comelec") and its corresponding Comelec
directive dated 22 March 1995, through a Petition for
Certiorari and Prohibition. Petitioner PPI is a non-stock,
non-profit organization of newspaper and magazine
publishers. cdphil
On 2 March 1995, Comelec promulgated
Resolution No. 2772, which reads in part:
xxx xxx xxx
Sec. 2.Comelec Space. The Commission
shall procure free print space of not less
than one half (1/2) page in at least one
newspaper of general circulation in every
province or city for use as 'Comelec
Space' from March 6, 1995 in the case of
candidates for senators and from March
21, 1995 until May 12, 1995. In the
absence of said newspaper, 'Comelec
Space' shall be obtained from any
magazine or periodical of said province or
city.
Sec. 3.Uses of Comelec Space.
'Comelec Space' shall be allocated by the
Commission, free of charge, among all
candidates within the area in which the
newspaper, magazine or periodical is
circulated to enable the candidates to
make known their qualifications, their
stand on public issues and their platforms
and programs of government.
'Comelec Space' shall also be used by the
Commission for dissemination of vital
election information.
Sec. 4.Allocation of Comelec Space. (a)
'Comelec Space' shall be available to all
candidates during the periods stated in
Section 2 hereof. Its allocation shall be
equal and impartial among all candidates
for the same office. All candidates
concerned shall be furnished a copy of the

allocation of 'Comelec Space' for their


information, guidance and compliance.
(b)Any candidate desiring to avail himself
of 'Comelec Space' from newspapers or
publications based in the Metropolitan
Manila Area shall submit an application
therefor, in writing, to the Committee on
Mass Media of the Commission. Any
candidate desiring to avail himself of
'Comelec Space' in newspapers or
publications based in the provinces shall
submit his application therefor, in writing,
to the Provincial Election Supervisor
concerned. Applications for availment of
'Comelec Space' may be filed at any time
from the date of effectivity of this
Resolution.
(c)The Committee on Mass Media and the
Provincial Election Supervisors shall
allocate available 'Comelec Space' among
the candidates concerned by lottery of
which said candidates shall be notified in
advance, in writing, to be present
personally or by representative to witness
the lottery at the date, time and place
specified in the notice. Any party
objecting to the result of the lottery may
appeal to the Commission.
(d)The candidates concerned shall be
notified by the Committee on Mass Media
or the Provincial Election Supervisor, as
the case may be, sufficiently in advance
and in writing of the date of issue and the
newspaper or publication allocated to
him, and the time within which he must
submit the written material for publication
in the 'Comelec Space'.
xxx xxx xxx
Sec. 8.Undue Reference to
Candidates/Political Parties in
Newspapers. No newspaper or
publication shall allow to be printed or
published in the news, opinion, features,
or other sections of the newspaper or
publication accounts or comments which
manifestly favor or oppose any candidate
or political party by unduly or repeatedly
referring to or including therein said
candidate or political party. However,
unless the facts and circumstances clearly
indicate otherwise, the Commission will
respect the determination by the
publisher and/or editors of the
newspapers or publication that the
accounts or views published are
significant, newsworthy and of public
interest." (Emphasis supplied)
Apparently in implementation of this Resolution,
Comelec through Commissioner Regalado E. Maambong
sent identical letters, dated 22 March 1995, to various
publishers of newspapers like the Business World, the
Philippine Star, the Malaya and the Philippine Times
Journal, all members of PPI. These letters read as follows:
"This is to advise you that pursuant to
Resolution No. 2772 of the Commission on
Elections, you are directed to provide free
print space of not less than one half ()
page for use as 'Comelec Space' or similar
to the print support which you have
extended during the May 11, 1992
synchronized elections which was 2 full
pages for each political party fielding
senatorial candidates, from March 6, 1995
to May 6, 1995, to make known to their
qualifications, their stand on public issues
and their platforms and programs of
government.

26

We shall be informing the political parties


and candidates to submit directly to you
their pictures, biographical data, stand on
key public issues and platforms of
government, either as raw data or in the
form of positives or camera-ready
materials.
Please be reminded that the political
parties/candidates may be
accommodated in your publications any
day upon receipt of their materials until
May 6, 1995 which is the day for
campaigning.
We trust you to extend your full support
and cooperation in this regard."
(Emphasis supplied)
In this Petition for Certiorari and Prohibition with
prayer for the issuance of a Temporary restraining order,
PPI asks us to declare Comelec Resolution No. 2772
unconstitutional and void on the ground that it violates
the prohibition imposed by the Constitution upon the
government, and any of its agencies, against the taking
of private property for public use without just
compensation. Petitioner also contends that the 22 March
1995 letter directives of Comelec requiring publishers to
give free "Comelec Space" and at the same time process
raw data to make it camera-ready, constitute impositions
of involuntary servitude, contrary to the provisions of
Section 18 (2), Article III of the 1987 Constitution. Finally,
PPI argues that Section 8 of Comelec Resolution No. 2772
is violative of the constitutionally guaranteed freedom of
speech, of the press and of expression. 1
On 20 April 1995, this Court issued a Temporary
Restraining Order enjoining Comelec from enforcing and
implementing Section 2 of Resolution No. 2772, as well as
the Comelec directives addressed to various print media
enterprises all dated 22 March 1995. The Court also
required the respondent to file a Comment on the
Petition. prcd
The Office of the Solicitor General filed its
Comment on behalf of respondent Comelec alleging that
Comelec Resolution No. 2772 does not impose upon the
publishers any obligation to provide free print space in
the newspapers as it does not provide any criminal or
administrative sanction for non-compliance with that
Resolution. According to the Solicitor General, the
questioned Resolution merely established guidelines to be
followed in connection with the procurement of "Comelec
space," the procedure for and mode of allocation of such
space to candidates and the conditions or requirements
for the candidate's utilization of the "Comelec space"
procured. At the same time, however, the Solicitor
General argues that even if the questioned Resolution
and its implementing letter directives are viewed as
mandatory, the same would nevertheless be valid as an
exercise of the police power of the State. The Solicitor
general also maintains that Section 8 of Resolution No.
2772 is a permissible exercise of the power of supervisor
or regulation of the Comelec over the communication and
information operations of print media enterprises during
the election period to safeguard and ensure a fair,
impartial and credible election. 2
At the oral hearing of this case held on 28 April
1995, respondent Comelec through its Chairman, Hon.
Bernardo Pardo, in response to inquiries from the Chief
Justice and other Members of the Court, stated that
Resolution No. 2772, particularly Section 2 thereof and
the 22 March 1995 letters dispatched to various members
of petitioner PPI, were not intended to compel those
members to supply Comelec with free print space.
Chairman Pardo represented to the Court that that
Resolution and the related letter-directives were merely
designed to solicit from the publishers the same free print
space which many publishers had voluntarily given to
Comelec during the election period relating to the 11 May
1992 elections. Indeed, the Chairman stated that the
Comelec would, that very afternoon, meet and adopt an
appropriate amending or clarifying resolution, a certified
true copy of which would forthwith be filed with the Court.
cdrep

On 5 May 1995, the Court received from the


Office of the Solicitor general a manifestation which
attached a copy of Comelec resolution No. 2772-A dated
4 May 1995. The operative portion of this Resolution
follows:
NOW THEREFORE, pursuant to the powers
vested in it by the Constitution, the
Omnibus Election Code, Republic Acts No.
6646 and 7166 and other election laws,
the Commission on Elections RESOLVED to
clarify Sections 2 and 8 of Res. No. 2772
as follows:
1.Section 2 of Res. No. 2772 shall not be construed to
mean as requiring publishers of the different mass
media print publications to provide print space under
pain of prosecution, whether administrative, civil or
criminal, there being no sanction or penalty for
violation of said Section provided for either in said
Resolution or in Section 90 of Batas Pambansa Blg.
881, otherwise known as the Omnibus Election Code,
on the grant of 'Comelec Space.'
2.Section 8 of Res. No. 2772 shall not be construed to
mean as constituting prior restraint on the part of the
publishers with respect to the printing or publication
of materials in the news, opinion, features or other
sections of their respective publications or other
accounts or comments, it being clear from the last
sentence of said Section 8 that the Commission shall,
'unless the facts and circumstances clearly indicate
otherwise . . . respect the determination by the
publishers and/or editors of the newspapers or
publications that the accounts or views published are
significant, newsworthy and of public interest.'
This Resolution shall take effect upon
approval." (Emphasis in the original)
While, at this point, the Court could perhaps
simply dismiss the petition for Certiorari and Prohibition
as having become moot and academic, we consider it not
inappropriate to pass upon the first constitutional issue
raised in this case. Our hope is to put this issue to rest
and prevent its resurrection.
Section 2 of Resolution No. 2772 is not a model
of clarity in expression. Section 1 of Resolution No. 2772A did not try to redraft Section 2; accordingly, Section 2 of
resolution No. 2772 persists in its original form. Thus, we
must point out that, as presently worded, and in
particular as interpreted and applied by the Comelec
itself in its 22 March 1995 letter-directives to newspaper
publishers, Section 2 of Resolution No. 2772 is clearly
susceptible of the reading that petitioner PPI has given it.
That Resolution No. 2772 does not, in express terms,
threaten publishers who would disregard it or its
implementing letters with some criminal or other
sanction, does not by itself demonstrate that the
Comelec's original intention was simply to solicit or
request voluntary donations of print space from
publishers. A written communication officially directing a
print media company to supply free print space,
dispatched by government (here a constitutional) agency
and signed by member of the Commission presumably
legally authorized to do so, is bound to produce a
coercive effect upon the company so addressed. That the
agency may not be legally authorized to impose, or cause
the imposition of, criminal or other sanctions for disregard
of such direction, only aggravates the constitutional
difficulties inhering in the present situation. The
enactment or addition of such sanctions by the
legislative authority itself would be open to serious
constitutional objection.
To compel print media companies to donate
"Comelec space" of the dimensions specified in Section 2
of Resolution No. 2772 (not less than one-half Page),
amounts to "taking" of private personal property for
public use or purposes. Section 2 failed to specify the
intended frequency of such compulsory "donation:" only
once during the period from 6 March 1995 (or 21 March
1995) until 12 May 1995? or everyday or once a week? or
has often as Comelec may direct during the same period?
the extent of the taking or deprivation is not

27

insubstantial; this is not a case of a de minimis temporary


limitation or restraint upon the use of private property.
The monetary value of the compulsory "donation,"
measured by the advertising rates ordinarily charged by
newspaper publishers whether in cities or in non-urban
areas, may be very substantial indeed. LexLib

The taking of print space here sought to be


effected may first be appraised under the rubric of
expropriation of private personal property for public use.
The threshold requisites for a lawful taking of private
property for public use need to be examined here: one is
the necessity for the taking; another is the legal authority
to effect the taking. The element of necessity for the
taking has not been shown by respondent Comelec. It has
not been suggested that the members of PPI are unwilling
to sell print space at their normal rates to Comelec for
election purposes. Indeed, the unwillingness or reluctance
of Comelec to buy print space lies at the heart of the
problem. 3 Similarly, it has not been suggested, let alone
demonstrated, that Comelec has been granted the power
of imminent domain either by the Constitution or by the
legislative authority. A reasonable relationship between
that power and the enforcement and administration of
election laws by Comelec must be shown; it is not
casually to be assumed.
That the taking is designed to subserve "public
use" is not contested by petitioner PPI. We note only that,
under Section 3 of Resolution No. 2772, the free "Comelec
space" sought by the respondent Commission would be
used not only for informing the public about the
identities, qualifications and programs of government of
candidates for elective office but also for "dissemination
of vital election information" (including, presumably,
circulars, regulations, notices, directives, etc. issued by
Comelec). It seems to the Court a matter of judicial notice
that government offices and agencies (including the
Supreme Court) simply purchase print space, in the
ordinary course of events, when their rules and
regulations, circulars, notices and so forth need officially
to be brought to the attention of the general public.
The taking of private property for public use is,
of course, authorized by the Constitution, but not without
payment of "just compensation" (Article III, Section 9).
And apparently the necessity of paying compensation for
"Comelec space" is precisely what is sought to be avoided
by respondent Commission, whether Section 2 of
Resolution No. 2772 is read as petitioner PPI reads it, as
an assertion of authority to require newspaper publishers
to "donate" free print space for Comelec purposes, or as
an exhortion, or perhaps an appeal, to publishers to
donate free print space, as Section 1 of Resolution No.
2772-A attempts to suggest. There is nothing at all to
prevent newspaper and magazine publishers from
voluntarily giving free print space to Comelec for the
purposes contemplated in Resolution No. 2772. Section 2
of Resolution No. 2772 does not, however, provide a
constitutional basis for compelling publishers, against
their will, in the kind of factual context here present, to
provide free print space for Comelec purposes. Section 2
does not constitute a valid exercise of the power of
eminent domain. Cdpr
We would note that the ruling here laid down by
the Court is entirely in line with the theory of democratic
representative government. The economic costs of
informing the general public about the qualifications and
programs of those seeking elective office are most
appropriately distributed as widely as possible throughout
our society by the utilization of public funds, especially
funds raised by taxation, rather than cast solely on one
small sector of society, i.e., print media enterprises. The
benefits which flow from a heightened level of
information on and the awareness of the electoral process
are commonly thought to be community-wide; the
burdens should be allocated on the same basis.
As earlier noted, the Solicitor General also
contended that Section 2 of Resolution No. 2772, even if
read as compelling publishers to "donate" "Comelec
space," may be sustained as a valid exercise of the police
power of the state. This argument was, however, made

too casually to require prolonged consideration on their


part. Firstly, there was no effort (and apparently no
inclination on the part of Comelec) to show that the police
power essentially a power of legislation has been
constitutionally delegated to respondent Commission. 4
Secondly, while private property may indeed be validly
taken in the legitimate exercise of the police power of the
state, there was no attempt to show compliance in the
instant case with the requisites of a lawful taking under
the police power. 5
Section 2 of Resolution No. 2772 is a blunt and
heavy instrument that purports, without a showing of
existence of a national emergency or other imperious
public necessity, indiscriminately and without regard to
the individual business condition of particular newspapers
or magazines located in different parts of the country, to
take private property of newspaper or magazine
publishers. No attempt was made to demonstrate that a
real and palpable or urgent necessity for the taking of
print space confronted the Comelec and that Section 2 of
Resolution No. 2772 was itself the only reasonable and
calibrated response to such necessity available to
Comelec. Section 2 does not constitute a valid exercise of
the police power of the State.
We turn to Section 8 of Resolution No. 2772,
which needs to be quoted in full again:
Sec. 8.Undue Reference to
Candidates/Political parties in Newspaper.
No newspaper or publication shall allow
to be printed or published in the news,
opinion, features, or other sections of the
newspaper or publication accounts or
comments which manifest favor or oppose
any candidate or political party by unduly
or repeatedly referring to or including
therein said candidate or political party.
However, unless the facts and
circumstances clearly indicates otherwise,
the Commission will respect the
determination by the publisher and/or
editors of the newspapers or publications
that the accounts or views published are
significant, newsworthy and of public
interest."
It is not easy to understand why Section 8 was
included at all in Resolution No 2772. In any case, Section
8 should be viewed in the context of our decision in
National Press Club v. Commission on Elections. 6 There
the Court sustained the constitutionality of Section 11 (b)
of R.A. No. 6646, known as the Electoral Reforms Law of
1987, which prohibits the sale or donation of print space
and airtime for campaign or other political purposes,
except to the Comelec. In doing so, the Court carefully
distinguished (a) paid political advertisements which are
reached by the prohibition of Section 11 (b), from (b) the
reporting of news, commentaries and expressions of
belief or opinion by reporters, broadcasters, editors,
commentators or columnists which fall outside the scope
of Section 11 (b) and which are protected by the
constitutional guarantees of freedom of speech and of the
press: LLjur
"Secondly, and more importantly, Section
11 (b) is limited in its scope of application.
Analysis of Section 11 (b) shows that it
purports to apply only to the purchase
and sale, including purchase and sale
disguised as a donation, of print space
and air time for campaign or other
political purposes. Section 11 (b) does not
purport in any way to restrict the
reporting by newspapers or radio or
television stations of news or newsnoteworthy events relating to candidates,
their qualifications, political parties and
programs of government. Moreover,
Section 11 (b) does not reach
commentaries and expressions of belief
or opinion by reporters or broadcasters or
editors or commentators or columnists in
respect of candidates, their qualifications,
and programs and so forth, so long at
least as such comments, opinions and

28

beliefs are not in fact advertisements for


particular candidates covertly paid for. In
sum Section 11 (b) is not to be read as
reaching any report or commentary or
other coverage that, in responsible media,
is not paid for by candidates for political
office. We read Section 11 (b) as designed
to cover only paid political
advertisements of particular candidates.
The above limitation in scope of
application of Section 11 (b) that it
does not restrict either the reporting of or
the expression of belief or opinion or
comment upon the qualifications and
programs and activities of any and all
candidates for office constitutes the
critical distinction which must be made
between the instant case and that of
Sanidad v. Commission on Elections. . . ."7
(Citations omitted; emphasis supplied)
Section 8 of Resolution No. 2772 appears to
represent the effort of the Comelec to establish a
guidelines for implementation of the above-quoted
distinction and doctrine in National Press Club, an effort
not blessed with evident success. Section 2 of Resolution
No. 2772-A while possibly helpful, does not add
substantially to the utility of Section 8 of Resolution No.
2772. The distinction between paid political
advertisements on the one hand and news reports,
commentaries and expressions of belief or opinion by
reporters, broadcasters, editors, etc. on the other hand,
can realistically be given operative meaning only in actual
cases or controversies, on a case-to-case basis, in terms
of very specific sets of facts.
At all events, the Court is bound to note that PPI
has failed to allege any specific affirmative action on the
part of Comelec designed to enforce or implement
Section 8. PPI has not claimed that it or any of its
members has sustained actual or imminent injury by
reason of Comelec action under Section 8. Put a little
differently, the Court considers that the precise
constitutional issue here sought to be raised whether
or not Section 8 of Resolution No. 2772 constitutes a
permissible exercise of the Comelec's power under Article
IX, Section 4 of the Constitution to
"supervise or regulate the enjoyment or
utilization of all franchise or permits for
the operation of media of
communication or information [for the
purpose of ensuring] equal opportunity,
time and space, and the right of reply,
including reasonable, equal rates therefor,
for public-information campaigns and
forums among candidates in connection
with the objective of holding free, orderly,
honest, peaceful and credible elections
"
is not ripe for judicial review for lack of an actual
case or controversy involving, as the very lis mota
thereof, the constitutionality of Section 8.
1.Section 2 of Resolution No. 2772, in its present
form and as interpreted by Comelec in its 22 March 1995
letter directives, purports to require print media
enterprises to "donate" free print space to Comelec. As
such, Section 2 suffers from fatal constitutional vice and
must be set aside and nullified. cdll
2.To the extent it pertains to Section 8 of
Resolution No. 2772, the Petition for Certiorari and
Prohibition must be dismissed for lack of an actual,
justiciable case or controversy.
WHEREFORE, for all the foregoing, the Petition
for Certiorari and Prohibition is GRANTED in part and
Section 2 of Resolution No. 2772 in its present from and
the related letter-directives dated 22 March 1995 are
hereby SET ASIDE as null and void, and the Temporary
Restraining Order is hereby MADE PERMANENT. The
Petition is DISMISSED in part, to the extent it relates to

Section 8 of Resolution No. 2772. No pronouncement as


to costs.

SECOND DIVISION
[G.R. No. 144681. June 21, 2004.]
PROFESSIONAL REGULATION
COMMISSION (PRC) et al, petitioners,
vs. ARLENE V. DE GUZMAN, et al.
respondents.

DECISION
TINGA, J p:
This petition for review under Rule 45 of the 1997 Rules of
Civil Procedure seeks to nullify the Decision, 1 dated May 16,
2000, of the Court of Appeals in CA-G.R. SP No. 37283. The
appellate court affirmed the judgment 2 dated December 19,
1994, of the Regional Trial Court (RTC) of Manila, Branch 52, in
Civil Case No. 93-66530. The trial court allowed the
respondents to take their physician's oath and to register as
duly licensed physicians. Equally challenged is the Resolution
3 promulgated on August 25, 2000 of the Court of Appeals,
denying petitioners' Motion for Reconsideration.
The facts of this case are as follows:
The respondents are all graduates of the Fatima College of
Medicine, Valenzuela City, Metro Manila. They passed the
Physician Licensure Examination conducted in February 1993
by the Board of Medicine (Board). Petitioner Professional
Regulation Commission (PRC) then released their names as
successful examinees in the medical licensure examination.
Shortly thereafter, the Board observed that the grades of the
seventy-nine successful examinees from Fatima College in the
two most difficult subjects in the medical licensure exam,
Biochemistry (Bio-Chem) and Obstetrics and Gynecology (OBGyne), were unusually and exceptionally high. Eleven Fatima
examinees scored 100% in Bio-Chem and ten got 100% in OBGyne, another eleven got 99% in Bio-Chem, and twenty-one
scored 99% in OB-Gyne. The Board also observed that many
of those who passed from Fatima got marks of 95% or better
in both subjects, and no one got a mark lower than 90%. A
comparison of the performances of the candidates from other
schools was made. The Board observed that strangely, the
unusually high ratings were true only for Fatima College
examinees. It was a record-breaking phenomenon in the
history of the Physician Licensure Examination.
On June 7, 1993, the Board issued Resolution No. 19,
withholding the registration as physicians of all the examinees
from the Fatima College of Medicine. 4 The PRC asked the
National Bureau of Investigation (NBI) to investigate whether
any anomaly or irregularity marred the February 1993
Physician Licensure Examination.
Prior to the NBI investigation, the Board requested Fr.
Bienvenido F. Nebres, S.J., an expert mathematician and
authority in statistics, and later president of the Ateneo de
Manila University, to conduct a statistical analysis of the
results in Bio-Chem and Ob-Gyne of the said examination.
On June 10, 1993, Fr. Nebres submitted his report. He reported
that a comparison of the scores in Bio-Chem and Ob-Gyne, of
the Fatima College examinees with those of examinees from
De La Salle University and Perpetual Help College of Medicine
showed that the scores of Fatima College examinees were not
only incredibly high but unusually clustered close to each
other. He concluded that there must be some unusual reason
creating the clustering of scores in the two subjects. It must
be a cause "strong enough to eliminate the normal variations
that one should expect from the examinees [of Fatima
College] in terms of talent, effort, energy, etc." 5

29

For its part, the NBI found that "the questionable passing rate
of Fatima examinees in the [1993] Physician Examination
leads to the conclusion that the Fatima examinees gained
early access to the test questions." 6
On July 5, 1993, respondents Arlene V. De Guzman, Violeta V.
Meneses, Celerina S. Navarro, Jose Ramoncito P. Navarro,
Arnel V. Herrera, and Geraldine Elizabeth M. Pagilagan (Arlene
V. De Guzman et al., for brevity) filed a special civil action for
mandamus, with prayer for preliminary mandatory injunction
docketed as Civil Case No. 93-66530 with the Regional Trial
Court (RTC) of Manila, Branch 52. Their petition was adopted
by the other respondents as intervenors.
Meanwhile, the Board issued Resolution No. 26, dated July 21,
1993, charging respondents with "immorality, dishonest
conduct, fraud, and deceit" in connection with the Bio-Chem
and Ob-Gyne examinations. It recommended that the test
results of the Fatima examinees be nullified. The case was
docketed as Adm. Case No. 1687 by the PRC.

WHEREFORE, the present petition for


certiorari with prayer for temporary
restraining order/preliminary injunction is
GRANTED and the Orders of December 13,
1993, February 7, 1994, February 28,
1994, and April 4, 1994 of the RTC-Manila,
Branch 52, and all further proceedings
taken by it in Special Civil Action No. 9366530 are hereby DECLARED NULL and
VOID. The said RTC-Manila is ordered to
allow petitioners' counsel to crossexamine the respondents' witnesses, to
allow petitioners to present their evidence
in due course of trial, and thereafter to
decide the case on the merits on the basis
of the evidence of the parties. Costs
against respondents.
IT IS SO ORDERED. 8
The trial was then set and notices were sent to the parties.

On July 28, 1993, the RTC issued an Order in Civil Case No. 9366530 granting the preliminary mandatory injunction sought
by the respondents. It ordered the petitioners to administer
the physician's oath to Arlene V. De Guzman et al., and enter
their names in the rolls of the PRC.
The petitioners then filed a special civil action for certiorari
with the Court of Appeals to set aside the mandatory
injunctive writ, docketed as CA-G.R. SP No. 31701.
On October 21, 1993, the appellate court decided CA-G.R. SP
No. 31701, with the dispositive portion of the Decision
ordaining as follows:
WHEREFORE, this petition is GRANTED.
Accordingly, the writ of preliminary
mandatory injunction issued by the lower
court against petitioners is hereby
nullified and set aside.
SO ORDERED. 7
Arlene V. de Guzman, et al., then elevated the foregoing
Decision to this Court in G.R. No. 112315. In our Resolution
dated May 23, 1994, we denied the petition for failure to show
reversible error on the part of the appellate court. DcCEHI
Meanwhile, on November 22, 1993, during the pendency of
the instant petition, the pre-trial conference in Civil Case No.
93-66530 was held. Then, the parties, agreed to reduce the
testimonies of their respective witnesses to sworn questionsand-answers. This was without prejudice to cross-examination
by the opposing counsel.
On December 13, 1993, petitioners' counsel failed to appear
at the trial in the mistaken belief that the trial was set for
December 15. The trial court then ruled that petitioners
waived their right to cross-examine the witnesses.
On January 27, 1994, counsel for petitioners filed a
Manifestation and Motion stating the reasons for her nonappearance and praying that the cross-examination of the
witnesses for the opposing parties be reset. The trial court
denied the motion for lack of notice to adverse counsel. It also
denied the Motion for Reconsideration that followed on the
ground that adverse counsel was notified less than three (3)
days prior to the hearing.
Meanwhile, to prevent the PRC and the Board from proceeding
with Adm. Case No. 1687, the respondents herein moved for
the issuance of a restraining order, which the lower court
granted in its Order dated April 4, 1994.
The petitioners then filed with this Court a petition for
certiorari docketed as G.R. No. 115704, to annul the Orders of
the trial court dated November 13, 1993, February 28, 1994,
and April 4, 1994. We referred the petition to the Court of
Appeals where it was docketed as CA-G.R. SP No. 34506.
On August 31, 1994, the appellate court decided CA-G.R. SP
No. 34506 as follows:

A day before the first hearing, on September 22, 1994, the


petitioners filed an Urgent Ex-Parte Manifestation and Motion
praying for the partial reconsideration of the appellate court's
decision in CA-G.R. SP No. 34506, and for the outright
dismissal of Civil Case No. 93-66530. The petitioners asked for
the suspension of the proceedings.
In its Order dated September 23, 1994, the trial court granted
the aforesaid motion, cancelled the scheduled hearing dates,
and reset the proceedings to October 21 and 28, 1994.
Meanwhile, on October 25, 1994, the Court of Appeals denied
the partial motion for reconsideration in CA-G.R. SP No. 34506.
Thus, petitioners filed with the Supreme Court a petition for
review docketed as G.R. No. 117817, entitled Professional
Regulation Commission, et al. v. Court of Appeals, et al.
On November 11, 1994, counsel for the petitioners failed to
appear at the trial of Civil Case No. 93-66530. Upon motion of
the respondents herein, the trial court ruled that herein
petitioners waived their right to cross-examine the herein
respondents. Trial was reset to November 28, 1994.
On November 25, 1994, petitioners' counsel moved for the
inhibition of the trial court judge for alleged partiality. On
November 28, 1994, the day the Motion to Inhibit was to be
heard, petitioners failed to appear. Thus, the trial court denied
the Motion to Inhibit and declared Civil Case No. 93-66530
deemed submitted for decision.
On December 19, 1994, the trial court handed down its
judgment in Civil Case No. 93-66530, the fallo of which reads:
WHEREFORE, judgment is rendered
ordering the respondents to allow the
petitioners and intervenors (except those
with asterisks and footnotes in pages 1 &
2 of this decision) [sic], 9 to take the
physician's oath and to register them as
physicians.
It should be made clear that this decision
is without prejudice to any administrative
disciplinary action which may be taken
against any of the petitioners for such
causes and in the manner provided by law
and consistent with the requirements of
the Constitution as any other
professionals.
No costs.
SO ORDERED. 10
As a result of these developments, petitioners filed with this
Court a petition for review on certiorari docketed as G.R. No.
118437, entitled Professional Regulation Commission v. Hon.
David G. Nitafan, praying inter alia, that (1) G.R. No. 118437
be consolidated with G.R. No. 117817; (2) the decision of the
Court of Appeals dated August 31, 1994 in CA-G.R. SP No.
34506 be nullified for its failure to decree the dismissal of Civil

30

Case No. 93-66530, and in the alternative, to set aside the


decision of the trial court in Civil Case No. 93-66530, order the
trial court judge to inhibit himself, and Civil Case No. 9366530 be re-raffled to another branch.
On December 26, 1994, the petitioners herein filed their
Notice of Appeal 11 in Civil Case No. 93-66530, thereby
elevating the case to the Court of Appeals, where it was
docketed as CA-G.R. SP No. 37283.
In our Resolution of June 7, 1995, G.R. No. 118437 was
consolidated with G.R. No. 117817.
On July 9, 1998, we disposed of G.R. Nos. 117817 and 118437
in this wise:
WHEREFORE, the petition in G.R. No.
117817 is DISMISSED for being moot. The
petition in G.R. No. 118437 is likewise
DISMISSED on the ground that there is a
pending appeal before the Court of
Appeals. Assistant Solicitor General
Amparo M. Cabotaje-Tang is advised to be
more circumspect in her dealings with the
courts as a repetition of the same or
similar acts will be dealt with accordingly.
SO ORDERED. 12
While CA-G.R. SP No. 37283 was awaiting disposition by the
appellate court, Arnel V. Herrera, one of the original
petitioners in Civil Case No. 93-66530, joined by twenty-seven
intervenors, to wit: Fernando F. Mandapat, Ophelia C. Hidalgo,
Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz,
Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R.
Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S.
Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri,
Bernadette C. Escusa, Carlosito C. Domingo, Alicia S. Lizano,
Elnora R. Raqueno-Rabaino, Saibzur N. Edding, Derileen D.
Dorado-Edding, Robert B. Sanchez, Maria Rosario L. LeonorLacandula, Geraldine Elizabeth M. Pagilagan-Palma, Margarita
Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina
P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose Ramoncito
P. Navarro, manifested that they were no longer interested in
proceeding with the case and moved for its dismissal. A
similar manifestation and motion was later filed by
intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano,
Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabara,
Yolanda P. Unica, Dayminda G. Bontuyan, Clarissa B. Baclig,
Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A.
Gollayan, Evelyn C. Cundangan, Frederick D. Francisco, Violeta
V. Meneses, Melita J. Caedo, Clarisa SJ. Nicolas, Federico L.
Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E.
Uy, Lydia C. Chan, and Melvin M. Usita. The Court of Appeals
ruled that its decision in CA-G.R. SP No. 37283 would not
apply to them.
On May 16, 2000, the Court of Appeals decided CA-G.R. SP No.
37283, with the following fallo, to wit:
WHEREFORE, finding no reversible error in
the decision appealed from, We hereby
AFFIRM the same and DISMISS the instant
appeal.
No pronouncement as to costs.
SO ORDERED. 13
In sustaining the trial court's decision, the appellate court
ratiocinated that the respondents complied with all the
statutory requirements for admission into the licensure
examination for physicians in February 1993. They all passed
the said examination. Having fulfilled the requirements of
Republic Act No. 2382, 14 they should be allowed to take their
oaths as physicians and be registered in the rolls of the PRC.
aSDHCT
Hence, this petition raising the following issues:
I

WHETHER OR NOT RESPONDENTS HAVE A VALID


CAUSE OF ACTION FOR MANDAMUS AGAINST
PETITIONERS IN THE LIGHT OF THE RESOLUTION OF
THIS HONORABLE COURT IN G.R. NO. 112315
AFFIRMING THE COURT OF APPEALS' DECISION
DECLARING THAT IF EVER THERE IS SOME DOUBT AS
TO THE MORAL FITNESS OF EXAMINEES, THE
ISSUANCE OF LICENSE TO PRACTICE MEDICINE IS
NOT AUTOMATICALLY GRANTED TO THE SUCCESSFUL
EXAMINEES.
II
WHETHER OR NOT THE PETITION FOR MANDAMUS
COULD PROCEED DESPITE THE PENDENCY OF
ADMINISTRATIVE CASE NO. 1687, WHICH WAS
PRECISELY LODGED TO DETERMINE THE MORAL
FITNESS OF RESPONDENTS TO BECOME DOCTORS.
15

To our mind, the only issue is: Did the Court of Appeals
commit a reversible error of law in sustaining the judgment of
the trial court that respondents are entitled to a writ of
mandamus?
The petitioners submit that a writ of mandamus will not lie in
this case. They point out that for a writ of mandamus to issue,
the applicant must have a well-defined, clear and certain legal
right to the thing demanded and it is the duty of the
respondent to perform the act required. Thus, mandamus may
be availed of only when the duty sought to be performed is a
ministerial and not a discretionary one. The petitioners argue
that the appellate court's decision in CA-G.R. SP No. 37283
upholding the decision of the trial court in Civil Case No. 9366530 overlooked its own pronouncement in CA-G.R. SP No.
31701. The Court of Appeals held in CA-G.R. SP No. 31701
that the issuance of a license to engage in the practice of
medicine becomes discretionary on the PRC if there exists
some doubt that the successful examinee has not fully met
the requirements of the law. The petitioners stress that this
Court's Resolution dated May 24, 1994 in G.R. No. 112315
held that there was no showing "that the Court of Appeals had
committed any reversible error in rendering the questioned
judgment" in CA-G.R. SP No. 31701. The petitioners point out
that our Resolution in G.R. No. 112315 has long become final
and executory.
Respondents counter that having passed the 1993 licensure
examinations for physicians, the petitioners have the
obligation to administer to them the oath as physicians and to
issue their certificates of registration as physicians pursuant
to Section 20 16 of Rep. Act No. 2382. The Court of Appeals in
CA-G.R. SP No. 37283, found that respondents complied with
all the requirements of Rep. Act No. 2382. Furthermore,
respondents were admitted by the Medical Board to the
licensure examinations and had passed the same. Hence,
pursuant to Section 20 of Rep. Act No. 2382, the petitioners
had the obligation to administer their oaths as physicians and
register them.
Mandamus is a command issuing from a court of competent
jurisdiction, in the name of the state or the sovereign, directed
to some inferior court, tribunal, or board, or to some
corporation or person requiring the performance of a
particular duty therein specified, which duty results from the
official station of the party to whom the writ is directed, or
from operation of law. 17 Section 3 of Rule 65 18 of the 1997
Rules of Civil Procedure outlines two situations when a writ of
mandamus may issue, when any tribunal, corporation, board,
officer or person unlawfully (1) neglects the performance of an
act which the law specifically enjoins as a duty resulting from
an office, trust, or station; or (2) excludes another from the
use and enjoyment of a right or office to which the other is
entitled.
We shall discuss the issues successively.
1.On The Existence of a Duty of the Board of Medicine To
Issue Certificates of Registration as Physicians under Rep. Act
No. 2382.

31

For mandamus to prosper, there must be a showing that the


officer, board, or official concerned, has a clear legal duty, not
involving discretion. 19 Moreover, there must be statutory
authority for the performance of the act, 20 and the
performance of the duty has been refused. 21 Thus, it must be
pertinently asked now: Did petitioners have the duty to
administer the Hippocratic Oath and register respondents as
physicians under the Medical Act of 1959?
As found by the Court of Appeals, on which we agree on the
basis of the records:
It bears emphasizing herein that
petitioner-appellees and intervenorappellees have fully complied with all the
statutory requirements for admission into
the licensure examinations for physicians
conducted and administered by the
respondent-appellants on February 12, 14,
20 and 21, 1993. Stress, too, must be
made of the fact that all of them
successfully passed the same
examinations. 22
The crucial query now is whether the Court of Appeals
erred in concluding that petitioners should allow the
respondents to take their oaths as physicians and register
them, steps which would enable respondents to practice
the medical profession 23 pursuant to Section 20 of the
Medical Act of 1959?
The appellate court relied on a single provision, Section
20 of Rep. Act No. 2382, in concluding that the petitioners
had the ministerial obligation to administer the
Hippocratic Oath to respondents and register them as
physicians. But it is a basic rule in statutory construction
that each part of a statute should be construed in
connection with every other part to produce a
harmonious whole, not confining construction to only one
section. 24 The intent or meaning of the statute should
be ascertained from the statute taken as a whole, not
from an isolated part of the provision. Accordingly,
Section 20, of Rep. Act No. 2382, as amended should be
read in conjunction with the other provisions of the Act.
Thus, to determine whether the petitioners had the
ministerial obligation to administer the Hippocratic Oath
to respondents and register them as physicians, recourse
must be had to the entirety of the Medical Act of 1959.
A careful reading of Section 20 of the Medical Act of 1959
discloses that the law uses the word "shall" with respect to the
issuance of certificates of registration. Thus, the petitioners
"shall sign and issue certificates of registration to those who
have satisfactorily complied with the requirements of the
Board." In statutory construction the term "shall" is a word of
command. It is given imperative meaning. Thus, when an
examinee satisfies the requirements for the grant of his
physician's license, the Board is obliged to administer to him
his oath and register him as a physician, pursuant to Section
20 and par. (1) of Section 22 25 of the Medical Act of 1959.
However, the surrounding circumstances in this case call for
serious inquiry concerning the satisfactory compliance with
the Board requirements by the respondents. The unusually
high scores in the two most difficult subjects was phenomenal,
according to Fr. Nebres, the consultant of PRC on the matter,
and raised grave doubts about the integrity, if not validity, of
the tests. These doubts have to be appropriately resolved.
Under the second paragraph of Section 22, the Board is
vested with the power to conduct administrative
investigations and "disapprove applications for examination or
registration," pursuant to the objectives of Rep. Act No. 2382
as outlined in Section 1 26 thereof. In this case, after the
investigation, the Board filed before the PRC, Adm. Case No.
1687 against the respondents to ascertain their moral and
mental fitness to practice medicine, as required by Section 9
27 of Rep. Act No. 2382. In its Decision dated July 1, 1997, the
Board ruled:
WHEREFORE, the BOARD hereby CANCELS the
respondents['] examination papers in the Physician
Licensure Examinations given in February 1993 and
further DEBARS them from taking any licensure
examination for a period of ONE (1) YEAR from the

date of the promulgation of this DECISION. They may,


if they so desire, apply for the scheduled
examinations for physicians after the lapse of the
period imposed by the BOARD.
SO ORDERED. 28
Until the moral and mental fitness of the respondents could be
ascertained, according to petitioners, the Board has discretion
to hold in abeyance the administration of the Hippocratic Oath
and the issuance of the certificates to them. The writ of
mandamus does not lie to compel performance of an act
which is not duly authorized.
The respondents nevertheless argue that under Section 20,
the Board shall not issue a certificate of registration only in
the following instances: (1) to any candidate who has been
convicted by a court of competent jurisdiction of any criminal
offense involving moral turpitude; (2) or has been found guilty
of immoral or dishonorable conduct after the investigation by
the Board; or (3) has been declared to be of unsound mind.
They aver that none of these circumstances are present in
their case.
Petitioners reject respondents' argument. We are informed
that in Board Resolution No. 26, 29 dated July 21, 1993, the
Board resolved to file charges against the examinees from
Fatima College of Medicine for "immorality, dishonesty, fraud,
and deceit in the Obstetrics-Gynecology and Biochemistry
examinations." It likewise sought to cancel the examination
results obtained by the examinees from the Fatima College.
Section 8 30 of Rep. Act No. 2382 prescribes, among others,
that a person who aspires to practice medicine in the
Philippines, must have "satisfactorily passed the
corresponding Board Examination." Section 22, in turn,
provides that the oath may only be administered "to
physicians who qualified in the examinations." The operative
word here is "satisfactorily," defined as "sufficient to meet a
condition or obligation" or "capable of dispelling doubt or
ignorance." 31 Gleaned from Board Resolution No. 26, the
licensing authority apparently did not find that the
respondents "satisfactorily passed" the licensure
examinations. The Board instead sought to nullify the
examination results obtained by the respondents.
2.On the Right Of The Respondents To Be Registered As
Physicians
The function of mandamus is not to establish a right but to
enforce one that has been established by law. If no legal right
has been violated, there can be no application of a legal
remedy, and the writ of mandamus is a legal remedy for a
legal right. 32 There must be a well-defined, clear and certain
legal right to the thing demanded. 33 It is long established
rule that a license to practice medicine is a privilege or
franchise granted by the government. 34
It is true that this Court has upheld the constitutional right 35
of every citizen to select a profession or course of study
subject to a fair, reasonable, and equitable admission and
academic requirements. 36 But like all rights and freedoms
guaranteed by the Charter, their exercise may be so regulated
pursuant to the police power of the State to safeguard health,
morals, peace, education, order, safety, and general welfare
of the people. 37 Thus, persons who desire to engage in the
learned professions requiring scientific or technical knowledge
may be required to take an examination as a prerequisite to
engaging in their chosen careers. This regulation takes
particular pertinence in the field of medicine, to protect the
public from the potentially deadly effects of incompetence and
ignorance among those who would practice medicine. In a
previous case, it may be recalled, this Court has ordered the
Board of Medical Examiners to annul both its resolution and
certificate authorizing a Spanish subject, with the degree of
Licentiate in Medicine and Surgery from the University of
Barcelona, Spain, to practice medicine in the Philippines,
without first passing the examination required by the
Philippine Medical Act. 38 In another case worth noting, we
upheld the power of the State to upgrade the selection of
applicants into medical schools through admission tests. 39
It must be stressed, nevertheless, that the power to regulate
the exercise of a profession or pursuit of an occupation cannot
be exercised by the State or its agents in an arbitrary,

32

despotic, or oppressive manner. A political body that regulates


the exercise of a particular privilege has the authority to both
forbid and grant such privilege in accordance with certain
conditions. Such conditions may not, however, require giving
up ones constitutional rights as a condition to acquiring the
license. 40 Under the view that the legislature cannot validly
bestow an arbitrary power to grant or refuse a license on a
public agency or officer, courts will generally strike down
license legislation that vests in public officials discretion to
grant or refuse a license to carry on some ordinarily lawful
business, profession, or activity without prescribing definite
rules and conditions for the guidance of said officials in the
exercise of their power. 41
In the present case, the aforementioned guidelines are
provided for in Rep. Act No. 2382, as amended, which
prescribes the requirements for admission to the practice of
medicine, the qualifications of candidates for the board
examinations, the scope and conduct of the examinations, the
grounds for denying the issuance of a physician's license, or
revoking a license that has been issued. Verily, to be granted
the privilege to practice medicine, the applicant must show
that he possesses all the qualifications and none of the
disqualifications. Furthermore, it must appear that he has fully
complied with all the conditions and requirements imposed by
the law and the licensing authority. Should doubt taint or mar
the compliance as being less than satisfactory, then the
privilege will not issue. For said privilege is distinguishable
from a matter of right, which may be demanded if denied.
Thus, without a definite showing that the aforesaid
requirements and conditions have been satisfactorily met, the
courts may not grant the writ of mandamus to secure said
privilege without thwarting the legislative will.
3.On the Ripeness of the Petition for Mandamus
Lastly, the petitioners herein contend that the Court of
Appeals should have dismissed the petition for mandamus
below for being premature. They argue that the administrative
remedies had not been exhausted. The records show that this
is not the first time that petitioners have sought the dismissal
of Civil Case No. 93-66530. This issue was raised in G.R. No.
115704, which petition we referred to the Court of Appeals,
where it was docketed as CA-G.R. SP No. 34506. On motion for
reconsideration in CA-G.R. SP No. 34506, the appellate court
denied the motion to dismiss on the ground that the prayers
for the nullification of the order of the trial court and the
dismissal of Civil Case No. 93-66530 were inconsistent reliefs.
In G.R. No. 118437, the petitioners sought to nullify the
decision of the Court of Appeals in CA-G.R. SP No. 34506
insofar as it did not order the dismissal of Civil Case No. 9366530. In our consolidated decision, dated July 9, 1998, in
G.R. Nos. 117817 & 118437, this Court speaking through
Justice Bellosillo opined that:
Indeed, the issue as to whether the Court of Appeals erred in
not ordering the dismissal of Civil Case No. 93-66530 sought
to be resolved in the instant petition has been rendered
meaningless by an event taking place prior to the filing of this
petition and denial thereof should follow as a logical
consequence. 42 There is no longer any justiciable
controversy so that any declaration thereon would be of no
practical use or value. 43 It should be recalled that in its
decision of 19 December 1994 the trial court granted the writ
of mandamus prayed for by private respondents, which
decision was received by petitioners on 20 December 1994.
Three (3) days after, or on 23 December 1994, petitioners
filed the instant petition. By then, the remedy available to
them was to appeal the decision to the Court of Appeals,
which they in fact did, by filing a notice of appeal on 26
December 1994. 44

administrative remedies are still available. 46 However, the


doctrine of exhaustion of administrative remedies does not
apply where, as in this case, a pure question of law is raised.
47 On this issue, no reversible error may, thus, be laid at the
door of the appellate court in CA-G.R. SP No. 37283, when it
refused to dismiss Civil Case No. 93-66530.
As we earlier pointed out, herein respondents Arnel V. Herrera,
Fernando F. Mandapat, Ophelia C. Hidalgo, Bernadette T.
Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A.
Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R. Triguero,
Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. AcostaCabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C.
Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R.
Raqueno-Rabaino, Saibzur N. Edding, Derileen D. DoradoEdding, Robert B. Sanchez, Maria Rosario Leonor-Lacandula,
Geraldine Elizabeth M. Pagilagan-Palma, Margarita Belinda L.
Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. ChicoPaguio, Elcin C. Arriola-Ocampo, and Jose Ramoncito P.
Navarro manifested to the Court of Appeals during the
pendency of CA-G.R. SP No. 37283, that they were no longer
interested in proceeding with the case and moved for its
dismissal insofar as they were concerned. A similar
manifestation and motion were later filed by intervenors Mary
Jean I. Yeban-Merlan, Michael L. Serrano, Norma G. Lafavilla,
Arnulfo A. Salvador, Belinda C. Rabarra, Yolanda P. Unica,
Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S.
Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C.
Cundangan, Frederick D. Francisco, Violeta V. Meneses, Melita
J. Caedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan
D. Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and
Melvin M. Usita. Following these manifestations and motions,
the appellate court in CA-G.R. SP No. 37283 decreed that its
ruling would not apply to them. Thus, inasmuch as the instant
case is a petition for review of the appellate court's ruling in
CA-G.R. SP No. 37283, a decision which is inapplicable to the
aforementioned respondents will similarly not apply to them.
As to Achilles J. Peralta, Evelyn O. Ramos, Sally B. Bunagan,
Rogelio B. Ancheta, Oscar H. Padua, Jr., Evelyn D. Grajo,
Valentino P. Arboleda, Carlos M. Bernardo, Jr., Mario D.
Cuaresma, Violeta C. Felipe, Percival H. Pangilinan, Corazon M.
Cruz and Samuel B. Bangoy, herein decision shall not apply
pursuant to the Orders of the trial court in Civil Case No. 9366530, dropping their names from the suit.
Consequently, this Decision is binding only on the remaining
respondents, namely: Arlene V. de Guzman, Celerina S.
Navarro, Rafael I. Tolentino, Bernardita B. Sy, Gloria T. Jularbal,
Hubert S. Nazareno, Nancy J. Chavez, Ernesto L. Cue, Herminio
V. Fernandez, Jr., Maria Victoria M. Lacsamana and Merly D.
Sta. Ana, as well as the petitioners.
WHEREFORE, the instant petition is GRANTED. Accordingly, (1)
the assailed decision dated May 16, 2000, of the Court of
Appeals, in CA-G.R. SP No. 37283, which affirmed the
judgment dated December 19, 1994, of the Regional Trial
Court of Manila, Branch 52, in Civil Case No. 93-66530,
ordering petitioners to administer the physician's oath to
herein respondents as well as the resolution dated August 25,
2000, of the appellate court, denying the petitioners' motion
for reconsideration, are REVERSED and SET ASIDE; and (2) the
writ of mandamus, issued in Civil Case No. 93-66530, and
affirmed by the appellate court in CA-G.R. SP No. 37283 is
NULLIFIED AND SET ASIDE. EcICDT
SO ORDERED.
FIRST DIVISION
[G.R. No. 120095. August 5, 1996.]

The petitioners have shown no cogent reason for us to reverse


the aforecited ruling. Nor will their reliance upon the doctrine
of the exhaustion of administrative remedies in the instant
case advance their cause any.
Section 26 45 of the Medical Act of 1959 provides for the
administrative and judicial remedies that respondents herein
can avail to question Resolution No. 26 of the Board of
Medicine, namely: (a) appeal the unfavorable judgment to the
PRC; (b) should the PRC ruling still be unfavorable, to elevate
the matter on appeal to the Office of the President; and (c)
should they still be unsatisfied, to ask for a review of the case
or to bring the case to court via a special civil action of
certiorari. Thus, as a rule, mandamus will not lie when

JMM PROMOTION AND MANAGEMENT,


INC., and KARY INTERNATIONAL, INC.,
petitioners, vs. HON. COURT OF
APPEALS, et al., respondents.
Don P. Porciuncula for petitioner.
Ma. Bezen Ringpis Liban/Solicitor General for respondents.

33

SYLLABUS
1.POLITICAL LAW; INHERENT POWERS OF THE STATE; POLICE
POWER; NATURE AND SCOPE. The latin maxim salus populi
est suprema lex embodies the character of the entire
spectrum of public laws aimed at promoting the general
welfare of the people under the State's police power. As an
inherent attribute of sovereignty which virtually "extends to all
public needs," this "least limitable" of governmental powers
grants a wide panoply of instruments through which the state,
as parens patriae gives effect to a host of its regulatory
powers. Describing the nature and scope of the police power,
Justice Malcolm, in the early case of Rubi v. Provincial Board of
Mindoro (89 Phil. 660, 708, [1919]) wrote: "The police power
of the State," one court has said . . . 'is a power coexistensive
with self-protection, and is not inaptly termed 'the law of
overruling necessity.' It may be said to be that inherent and
plenary power in the state which enables it to prohibit all
things hurtful to the comfort, safety and welfare of society."
Carried onward by the current of legislature. the judiciary
rarely attempts to dam the onrushing power of legislative
discretion, provided the purposes of the law do not go beyond
the great principles that mean security for the public welfare
or do not arbitrarily interfere with the right of the individual."
2.ID.; ID.; ID.; EXERCISE THEREOF ENJOYS A PRESUMED
VALIDITY UNLESS IT IS SHOWN THAT IT DOES NOT ENHANCE
THE PUBLIC WELFARE OR WAS EXERCISED ARBITRARILY OR
UNREASONABLY. Thus, police power concerns government
enactments which precisely interfere with personal liberty or
property in order to promote the general welfare or the
common good. As the assailed Department Order enjoys a
presumed validity, it follows that the burden rests upon
petitioners to demonstrate that the said order, particularly its
ARB requirement, does not enhance the public welfare or was
exercised arbitrarily or unreasonably.
3.ID.; ID.; ID.; THE PROPER REGULATION OF A PROFESSION,
CALLING, BUSINESS OR TRADE IS A VALID EXERCISE THEREOF.
Nevertheless, no right is absolute, and the proper
regulation of a profession, calling business or trade has always
been upheld as a legitimate subject of a valid exercise of the
police power by the state particularly when their conduct
affects either the execution of legitimate governmental
functions, the preservation of the State, the public health and
welfare and public morals. According to the maxim, sic utere
tuo ut alienum non laedas, it must of course be within the
legitimate range of legislative action to define the mode and
manner in which every one may so use his own property so as
not to pose injury to himself or others.
4.ID.; ID.; ID.; WHERE THE LIBERTY CURTAILED AFFECTS AT
MOST THE RIGHT TO PROPERTY, THE PERMISSIBLE SCOPE OF
REGULATORY MEASURES IS MUCH WIDER. In any case,
where the liberty curtailed affects at most the rights of
property, the permissible scope of regulatory measures is
certainly much wider. To pretend that licensing or
accreditation requirements violates the due process clause is
to ignore the settled practice, under the mantle of the police
power, of regulating entry to the practice of various trades or
professions. Professionals leaving for abroad are required to
pass rigid written and practical exams before they are
deemed fit to practice their trade. Seamen are required to
take tests determining their seamanship. Locally, the
Professional Regulation Commission has began to require
previously licensed doctors and other professionals to furnish
documentary proof that they had either re-trained or had
undertaken continuing education courses as a requirement for
renewal of their licenses. It is not claimed that these
requirements pose an unwarranted deprivation of a property
right under the due process clause. So long as professionals
and other workers meet reasonable regulatory standards no
such deprivation exists.
5.CONSTITUTIONAL LAW; STATE POLICIES; THE STATE SHALL
AFFORD FULL PROTECTION TO LABOR; ELUCIDATED.
Protection to labor does not indicate promotion of
employment alone. Under the welfare and social justice
provisions of the Constitution, the promotion of full
employment, while desirable, cannot take a backseat to the
government's constitutional duty to provide mechanisms for
the protection of our work-force, local or overseas. As this
Court explained in Philippine Association of Service Exporters
(PASEI) v. Drilon, in reference to the recurring problems faced
by our overseas workers: what concerns the Constitution more
paramountly is that such an employment be above all, decent,
just, and humane. It is bad enough that the country has to

send its sons and daughters to strange lands because it


cannot satisfy their employment needs at home. Under these
circumstances, the Government is duty-bound to insure that
our toiling expatriates have adequate protection, personally
and economically, while away from home. A profession, trade
or calling is a property right within the meaning of our
constitutional guarantees. One cannot be deprived of the right
to work and the right to make a living because these rights
are property rights, the arbitrary and unwarranted deprivation
of which normally constitutes an actionable wrong.
6.ID.; BILL OF RIGHTS; NON-IMPAIRMENT OF OBLIGATIONS OF
CONTRACTS; MUST YIELD TO THE STATE'S POLICE POWER.
It is a futile gesture on the part of petitioners to invoke the
non-impairment clause of the Constitution to support their
argument that the government cannot enact the assailed
regulatory measures because they abridge the freedom to
contract. In Philippine Association of Service Exporters, Inc.
vs. Drilon, we held that "(t)he non-impairment clause of the
Constitution . . . must yield to the loftier purposes targeted by
the government." Equally important, into every contract is
read provisions of existing law, and always, a reservation of
the police power for so long as the agreement deals with a
subject impressed with the public welfare.
7.ID.; ID.; EQUAL PROTECTION CLAUSE; MERELY REQUIRES
THAT ALL PERSONS BE TREATED ALIKE UNDER LIKE
CONDITIONS. The equal protection clause is directed
principally against undue favor and individual or class
privilege. It is not intended to prohibit legislation which is
limited to the object to which it is directed or by the territory
in which it is to operate. It does not require absolute equality,
but merely that all persons be treated alike under like
conditions both as to privileges conferred and liabilities
imposed. We have held, time and again, that the equal
protection clause of the Constitution does not forbid
classification for so long as such classification is based on real
and substantial differences having a reasonable relation to the
subject of the particular legislation. If classification is germane
to the purpose of the law, concerns all members of the class,
and applies equally to present and future conditions, the
classification does not violate the equal protection guarantee.
DECISION
KAPUNAN, J p:
This limits of government regulation under the State's police
power are once again at the vortex of the instant controversy.
Assailed is the government's power to control deployment of
female entertainers to Japan by requiring an Artist Record
Book (ARB) as a precondition to the processing by the POEA of
any contract for overseas employment. By contending that
the right to overseas employment is a property right within
the meaning of the Constitution, petitioners vigorously aver
that deprivation thereof allegedly through the onerous
requirement of an ARB violates the due process clause and
constitutes an invalid exercise of the police power.
The factual antecedents are undisputed.
Following the much-publicized death of Maricris Sioson in
1991, former President Corazon C. Aquino ordered a total ban
against the deployment of performing artists to Japan and
other foreign destinations. The ban was, however, rescinded
after leaders of the overseas employment industry promised
to extend full support for a program aimed at removing kinks
in the system of deployment. In its place, the government,
through the Secretary of Labor and Employment,
subsequently issued Department Order No. 28 creating the
Entertainment Industry Advisory Council (EIAC). which was
tasked with issuing guidelines on the training, testing
certification and deployment of performing artists abroad.
Pursuant to the EIAC's recommendations, 1 the Secretary of
Labor, on January 6, 1994, issued Department Order No. 3
establishing various procedures and requirements for
screening performing artists under a new system of training,
testing, certification and deployment of the former. Performing
artists successfully hurdling the test, training and certification
requirement were to be issued an Artist's Record Book (ARB),
a necessary prerequisite to processing of any contract of
employment by the POEA. Upon request of the industry,
implementation of the process, originally scheduled for April
1, 1994, was moved to October 1, 1994.

34

Thereafter, the Department of Labor, following the EIAC's


recommendation, issued a series of orders fine-tuning and
implementing the new system. Prominent among these orders
were the following issuances:
1.Department Order No. 3-A, providing for additional
guidelines on the training, testing, certification and
deployment of performing artists.
2.Department Order No. 3-B, pertaining to the Artist
Record Book (ARB) requirement, which could be
processed only after the artist could show proof of
academic and skills training and has passed the
required tests.
3.Department Order No. 3-E, providing the minimum
salary a performing artist ought to receive (not less
than US$600.00 for those bound for Japan) and the
authorized deductions therefrom.
4.Department Order No. 3-F, providing for the
guidelines on the issuance and use of the ARB by
returning performing artists who, unlike new artists,
shall only undergo a Special Orientation Program
(shorter than the basic program) although they must
pass the academic test.
In Civil No. 95-72750, the Federation of Entertainment Talent
Managers of the Philippines (FETMOP), on January 27, 1995
filed a class suit assailing these department orders, principally
contending that said orders 1) violated the constitutional right
to travel; 2) abridged existing contracts for employment; and
3) deprived individual artists of their licenses without due
process of law. FETMOP, likewise, averred that the issuance of
the Artist Record Book (ARB) was discriminatory and illegal
and "in gross violation of the constitutional right . . . to life
liberty and property." Said Federation consequently prayed for
the issuance of a writ of preliminary injunction against the
aforestated orders.
On February 2, 1992, JMM Promotion and Management, Inc.
and Kary International, Inc., herein petitioners, filed a Motion
for Intervention in said civil case, which was granted by the
trial court in an Order dated 15 February, 1995.
However, on February 21, 1995, the trial court issued an
Order denying petitioners' prayer for a writ of preliminary
injunction and dismissed the complaint.
On appeal from the trial court's Order, respondent court, in CA
G.R. SP No. 36713 dismissed the same. Tracing the
circumstances which led to the issuance of the ARB
requirement and the assailed Department Order, respondent
court concluded that the issuances constituted a valid
exercise by the state of the police power.
We agree.
The latin maxim salus populi est suprema lex embodies the
character of the entire spectrum of public laws aimed at
promoting the general welfare of the people under the State's
police power. As an inherent attribute of sovereignty which
virtually "extends to all public needs," 2 this "least limitable" 3
of governmental powers grants a wide panoply of instruments
through which the state, as parens patriae gives effect to a
host of its regulatory powers.
Describing the nature and scope of the police power, Justice
Malcolm, in the early case of Rubi v. Provincial Board of
Mindoro 4 wrote:
"The police power of the State," one court has said . .
. 'is a power coextensive with self-protection, and is
not inaptly termed 'the law of overruling necessity.' It
may be said to be that inherent and plenary power in
the state which enables it to prohibit all things hurtful
to the comfort, safety and welfare of society." Carried
onward by the current of legislature, the judiciary
rarely attempts to dam the onrushing power of
legislative discretion, provided the purposes of the
law do not go beyond the great principles that mean
security for the public welfare or do not arbitrarily
interfere with the right of the individual." 5

Thus, police power concerns government enactments which


precisely interfere with personal liberty or property in order to
promote the general welfare or the common good. As the
assailed Department Order enjoys a presumed validity, it
follows that the burden rests upon petitioners to demonstrate
that the said order, particularly, its ARB requirement, does not
enhance the public welfare or was exercised arbitrarily or
unreasonably.
A through review of the facts and circumstances leading to
the issuance of the assailed orders compels us to rule that the
Artist Record Book requirement and the questioned
Department Order related to its issuance were issued by the
Secretary of Labor pursuant to a valid exercise of the police
power.
In 1984, the Philippines emerged as the largest labor sending
country in Asia dwarfing the labor export of countries with
mammoth populations such as India and China. According to
the National Statistics Office, this diaspora was augmented
annually by over 450,000 documented and clandestine or
illegal (undocumented) workers who left the country for
various destinations abroad, lured by higher salaries, better
work opportunities and sometimes better living conditions.
Of the hundreds of thousands of workers who left the country
for greener pastures in the last few years, women composed
slightly close to half of those deployed, constituting 47%
between 1987-1991, exceeding this proportion (58%) by the
end of 1991, 6 the year former President Aquino instituted the
ban on deployment of performing artists to Japan and other
countries as a result of the gruesome death of Filipino
entertainer Maricris Sioson.
It was during the same period that this Court took judicial
notice not only of the trend, but also of the fact that most of
our women, a large number employed as domestic helpers
and entertainers, worked under exploitative conditions
"marked by physical and personal abuse." 7 Even then, we
noted that "[t]he sordid tales of maltreatment suffered by
migrant Filipina workers, even rape and various forms of
torture, confirmed by testimonies of returning workers"
compelled "urgent government action." 8
Pursuant to the alarming number of reports that a significant
number of Filipina performing artists ended up as prostitutes
abroad (many of whom were beaten, drugged and forced into
prostitution), and following the deaths of a number of these
women, the government began instituting measures aimed at
deploying only those individuals who met set standards which
would qualify them as legitimate performing artists. In spite of
these measures, however, a number of our countrymen have
nonetheless fallen victim to unscrupulous recruiters, ending
up as virtual slaves controlled by foreign crime syndicates and
forced into jobs other than those indicated in their
employment contracts. Worse, some of our women have been
forced into prostitution.
Thus, after a number of inadequate and failed accreditation
schemes, the Secretary of Labor issued on August 16, 1993,
D.O. No. 28, establishing the Entertainment Industry Advisory
Council (EIAC), the policy advisory body of DOLE on
entertainment industry matters. 9 Acting on the
recommendations of the said body, the Secretary of Labor, on
January 6, 1994, issued the assailed orders. These orders
embodied EIAC's Resolution No. 1, which called for guidelines
on screening, testing and accrediting performing overseas
Filipino artists. Significantly, as the respondent court noted,
petitioners were duly represented in the EIAC, 10 which gave
the recommendations on which the ARB and other
requirements were based.
Clearly, the welfare of Filipino performing artists, particularly
the women was paramount in the issuance of Department
Order No. 3. Short of a total and absolute ban against the
deployment of performing artists to "high-risk" destinations, a
measure which would only drive recruitment further
underground, the new scheme at the very least rationalizes
the method of screening performing artists by requiring
reasonable educational and artistic skills from them and limits
deployment to only those individuals adequately prepared for
the unpredictable demands of employment as artists abroad.
It cannot be gainsaid that this scheme at least lessens the
room for exploitation by unscrupulous individuals and
agencies.

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Moreover, here or abroad, selection of performing artists is


usually accomplished by auditions, where those deemed unfit
are usually weeded out through a process which is inherently
subjective and vulnerable to bias and differences in taste. The
ARB requirement goes one step further, however, attempting
to minimize the subjectivity of the process by defining
minimum skills required from entertainers and performing
artists. As the Solicitor General observed, this should be easily
met by experienced artists possessing merely basic skills. The
tests are aimed at segregating real artists or performers from
those passing themselves off as such, eager to accept any
available job and therefore exposing themselves to possible
exploitation.
As to the other provisions of Department Order No. 3
questioned by petitioners, we see nothing wrong with the
requirement for document and booking confirmation (D.O. 3C), a minimum salary scale (D.O. 3-E), or the requirement for
registration of returning performers. The requirement for a
venue certificate or other documents evidencing the place
and nature of work allows the government closer monitoring
of foreign employers and helps keep our entertainers away
from prostitution fronts and other worksites associated with
unsavory, immoral, illegal or exploitative practices.
Parenthetically, none of these issuances appear to us, by any
stretch of the imagination, even remotely unreasonable or
arbitrary. They address a felt need of according greater
protection for an oft-exploited segment of our OCW's. They
respond to the industry's demand for clearer and more
practicable rules and guidelines. Many of these provisions
were fleshed out following recommendations by, and after
consultations with, the affected sectors and non-government
organizations. On the whole, they are aimed at enhancing the
safety and security of entertainers and artists bound for Japan
and other destinations, without stifling the industry's concerns
for expansion and growth.
In any event, apart from the State's police power, the
Constitution itself mandates government to extend the fullest
protection to our overseas workers. The basic constitutional
statement on labor, embodied in Section 18 of Article II of the
Constitution provides:
Sec. 18.The State affirms labor as a primary social economic
force. It shall protect the rights of workers and promote their
welfare.
More emphatically, the social justice provision on labor of the
1987 Constitution in its first paragraph states:
The State shall afford full protection to
labor, local and overseas, organized and
unorganized and promote full
employment and equality of employment
opportunities for all.
Obviously, protection to labor does not indicate promotion of
employment alone. Under the welfare and social justice
provisions of the Constitution, the promotion of full
employment, while desirable, cannot take a backseat to the
government's constitutional duty to provide mechanisms for
the protection of our workforce, local or overseas. At this
Court explained in Philippine Association of Service Exporters
(PASEI) v. Drilon, 11 in reference to the recurring problems
faced by our overseas workers:
What concerns the Constitution more
paramountly is that such an employment
be above all, decent, just, and humane. It
is bad enough that the country has to
send its sons and daughters to strange
lands because it cannot satisfy their
employment needs at home. Under these
circumstances, the Government is dutybound to insure that our toiling
expatriates have adequate protection,
personally and economically, while away
from home.
We now go to petitioners' assertion that the police power
cannot, nevertheless, abridge the right of our performing
workers to return to work abroad after having earlier qualified
under the old process, because, having previously been
accredited, their accreditation became a "property right,"

protected by the due process clause. We find this contention


untenable.
A profession, trade or calling is a property right within the
meaning of our constitutional guarantees. One cannot be
deprived of the right to work and the right to make a living
because these rights are property rights, the arbitrary and
unwarranted deprivation of which normally constitutes an
actionable wrong. 12
Nevertheless, no right is absolute, and the proper regulation
of a profession, calling, business or trade has always been
upheld as a legitimate subject of a valid exercise of the police
power by the state particularly when their conduct affects
either the execution of legitimate governmental functions, the
preservation of the State, the public health and welfare and
public morals. According to the maxim, sic utere tuo ut
alienum non laedas, it must of course be within the legitimate
range of legislative action to define the mode and manner in
which every one may so use his own property so as not to
pose injury to himself or others. 13
In any case, where the liberty curtailed affects at most the
rights of property, the permissible scope of regulatory
measures is certainly much wider. 14 To pretend that licensing
or accreditation requirements violates the due process clause
is to ignore the settled practice, under the mantle of the
police power, of regulating entry to the practice of various
trades or professions. Professionals leaving for abroad are
required to pass rigid written and practical exams before they
are deemed fit to practice their trade. Seamen are required to
take tests determining their seamanship. Locally, the
Professional Regulation Commission has began to require
previously licensed doctors and other professionals to furnish
documentary proof that they had either re-trained or had
undertaken continuing education courses as a requirement for
renewal of their licenses. It is not claimed that these
requirements pose an unwarranted deprivation of a property
right under the due process clause. So long as professionals
and other workers meet reasonable regulatory standards no
such deprivation exists.
Finally, it is a futile gesture on the part of petitioners to invoke
the non-impairment clause of the Constitution to support their
argument that the government cannot enact the assailed
regulatory measures because they abridge the freedom to
contract. In Philippine Association of Service Exporters, Inc.
vs. Drilon, we held that "[t]he non-impairment clause of the
Constitution . . . must yield to the loftier purposes targeted by
the government." 15 Equally important, into every contract is
read provisions of existing law, and always, a reservation of
the police power for so long as the agreement deals with a
subject impressed with the public welfare.
A last point. Petitioners suggest that the singling out of
entertainers and performing artists under the assailed
department orders constitutes class legislation which violates
the equal protection clause of the Constitution. We do not
agree.
The equal protection clause is directed principally against
undue favor and individual or class privilege. It is not intended
to prohibit legislation which is limited to the object to which it
is directed or by the territory in which it is to operate. It does
not require absolute equality, but merely that all persons be
treated alike under like conditions both as to privileges
conferred and liabilities imposed. 16 We have held, time and
again, that the equal protection clause of the Constitution
does not forbid classification for so long as such classification
is based on real and substantial differences having a
reasonable relation to the subject of the particular legislation.
17 If classification is germane to the purpose of the law,
concerns all members of the class, and applies equally to
present and future conditions, the classification does not
violate the equal protection guarantee.
In the case at bar, the challenged Department Order clearly
applies to all performing artists and entertainers destined for
jobs abroad. These orders, we stressed hereinbefore, further
the Constitutional mandate requiring government to protect
our workforce, particularly those who may be prone to abuse
and exploitation as they are beyond the physical reach of
government regulatory agencies. The tragic incidents must
somehow stop, but short of absolutely curtailing the right of
these performers and entertainers to work abroad, the

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assailed measures enable our government to assume a


measure of control.

SO ORDERED.
Padilla, Bellosillo, Vitug and Hermosisima, Jr., JJ ., concur.

WHEREFORE, finding no reversible error in the decision sought


to be reviewed, petition is hereby DENIED.

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