Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 110249 August 21, 1997

ALFREDO TANO, BALDOMERO TANO, DANILO TANO, ROMUALDO TANO, TEOCENES MIDELLO,
ANGEL DE MESA, EULOGIO TREMOCHA, FELIPE ONGONION, JR., ANDRES LINIJAN, ROBERT
LIM, VIRGINIA LIM, FELIMON DE MESA, GENEROSO ARAGON, TEODORICO ANDRE, ROMULO
DEL ROSARIO, CHOLITO ANDRE, ERICK MONTANO, ANDRES OLIVA, VITTORIO SALVADOR,
LEOPOLDO ARAGON, RAFAEL RIBA, ALEJANDRO LEONILA, JOSE DAMACINTO, RAMIRO
MANAEG, RUBEN MARGATE, ROBERTO REYES, DANILO PANGARUTAN, NOE GOLPAN,
ESTANISLAO ROMERO, NICANOR DOMINGO, ROLDAN TABANG, ADRIANO TABANG, FREDDIE
SACAMAY, MIGUEL TRIMOCHA, PACENCIO LABABIT, PABLO H. OMPAD, CELESTINO A. ABANO,
ALLAN ALMODAI, BILLY D. BARTOLAY, ALBINO D. LIQUE, MECHOR J. LAYSON, MELANIE
AMANTE, CLARO E. YATOC, MERGELDO B. BALDEO, EDGAR M. ALMASETA, JOSELITO MANAEG,
LIBERATO ANDRADA, JR., ROBERTO BERRY, RONALD VILLANUEVA, EDUARDO VALMORIA,
WILFREDO MENDOZA, NAPOLEON BABANGGA, ROBERTO TADEPA, RUBEN ASINGUA, SILVERIO
GABO, JERRY ROMERO, DAVID PANGGARUTAN, DANIEL PANGGARUTAN, ROMEO AGAWIN,
FERNANDO EQUIZ, DITO LEQUIZ, RONILO MODERABLE, BENEDICTO TORRES, ROSITO A.
VALDEZ, CRESENCIO A. SAYANG, NICOMEDES S. ACOSTA, ERENEO A. SEGARINO, JR., WILFREDO
A. RAUTO, DIOSDADO A. ACOSTA, BONIFACIO G. SISMO, TACIO ALUBA, DANIEL B. BATERZAL,
ELISEO YBAEZ, DIOSDADO E. HANCHIC, EDDIE ESCALICAS, ELEAZAR B. BATERZAL,
DOMINADOR HALICHIC, ROOSEVELT RISMO-AN, ROBERT C. MERCADER, TIRSO ARESGADO,
DANIEL CHAVEZ, DANILO CHAVEZ, VICTOR VILLAROEL, ERNESTO C. YBAEZ, ARMANDO T.
SANTILLAN, RUDY S. SANTILLAN, JODJEN ILUSTRISIMO, NESTOR SALANGRON, ALBERTO
SALANGRON, ROGER L. ROXAS, FRANCISCO T. ANTICANO, PASTOR SALANGRON, BIENVENIDO
SANTILLAN, GILBUENA LADDY, FIDEL BENJAMIN, JOVELITO BELGANO, HONEY PARIOL,
ANTONIO SALANGRON, NICASIO SALANGRON, & AIRLINE SHIPPERS ASSOCIATION OF
PALAWAN,petitioners,
vs.
HON. GOV. SALVADOR P. SOCRATES, MEMBERS OF SANGGUNIANG PANLALAWIGAN OF
PALAWAN, namely, VICE-GOVERNOR JOEL T. REYES, JOSE D. ZABALA, ROSALINO R. ACOSTA,
JOSELITO A. CADLAON, ANDRES R. BAACO, NELSON P. PENEYRA, CIPRIANO C. BARROMA,
CLARO E. ORDINARIO, ERNESTO A. LLACUNA, RODOLFO C. FLORDELIZA, GILBERT S. BAACO,
WINSTON G. ARZAGA, NAPOLEON F. ORDONEZ and GIL P. ACOSTA, CITY MAYOR EDWARD
HAGEDORN, MEMBERS OF SANGGUNIANG PANLUNGSOD NG PUERTO PRINCESA, ALL
MEMBERS OF BANTAY DAGAT, MEMBERS OF PHILIPPINE NATIONAL POLICE OF PALAWAN,
PROVINCIAL AND CITY PROSECUTORS OF PALAWAN and PUERTO PRINCESA CITY, and ALL
JUDGES OF PALAWAN, REGIONAL, MUNICIPAL AND METROPOLITAN, respondents.

DAVIDE, JR., J.:

Petitioners caption their petition as one for "Certiorari, Injunction With Preliminary and Mandatory Injunction, with
Prayer for Temporary Restraining Order" and pray that this Court: (1) declare as unconstitutional: (a) Ordinance No.
15-92, dated 15 December 1992, of the Sangguniang Panglungsod of Puerto Princesa; (b) Office Order No. 23, Series
of 1993, dated 22 January 1993, issued by Acting City Mayor Amado L. Lucero of Puerto Princesa City; and (c)
Resolution No. 33, Ordinance No. 2, Series of 1993, dated 19 February 1993, of the Sangguniang Panlalawigan of
Palawan; (2) enjoin the enforcement thereof; and (3) restrain respondents Provincial and City Prosecutors of Palawan
and Puerto Princesa City and Judges of the Regional Trial Courts, Metropolitan Trial Courts 1 and Municipal Circuit Trial Courts
in Palawan from assuming jurisdiction over and hearing cases concerning the violation of the Ordinances and of the Office Order.

More appropriately, the petition is, and shall be treated as, a special civil action for certiorari and prohibition.

The following is petitioners' summary of the factual antecedents giving rise to the petition:
1. On December 15, 1992, the Sangguniang Panlungsod ng Puerto Princesa City enacted Ordinance No. 1592 which took effect on January 1, 1993 entitled: "AN ORDINANCE BANNING THE SHIPMENT OF ALL
LIVE FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO
JANUARY 1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES
THEREOF", the full text of which reads as follows:
Sec. 1. Title of the Ordinance. This Ordinance is entitled: AN ORDINANCE BANNING
THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO PRINCESA
CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998 AND PROVIDING
EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES THEREOF.
Sec. 2. Purpose, Scope and Coverage. To effectively free our City Sea Waters from
Cyanide and other Obnoxious substance[s], and shall cover all persons and/or entities
operating within and outside the City of Puerto Princesa who is are (sic) directly or indirectly
in the business or shipment of live fish and lobster outside the City.
Sec. 3. Definition of terms. For purpose of this Ordinance the following are hereby
defined:
A. SEA BASS A kind of fish under the family of
Centropomidae, better known as APAHAP;
B. CATFISH A kind of fish under the family of
Plotosidae, better known as HITO-HITO;
C. MUDFISH A kind of fish under the family of
Orphicaphalisae better known as DALAG;
D. ALL LIVE FISH All alive, breathing not necessarily
moving of all specie[s] use[d] for food and for aquarium
purposes.
E. LIVE LOBSTER Several relatively, large marine
crusteceans [sic] of the genus Homarus that are alive and
breathing not necessarily moving.
Sec. 4. It shall be unlawful [for] any person or any business enterprise or company to ship
out from Puerto Princesa City to any point of destination either via aircraft or seacraft of any
live fish and lobster except SEA BASS, CATFISH, MUDFISH, AND MILKFISH FRIES.
Sec. 5. Penalty Clause. Any person/s and or business entity violating this Ordinance shall
be penalized with a fine of not more than P5,000.00 or imprisonment of not more than
twelve (12) months, cancellation of their permit to do business in the City of Puerto Princesa
or all of the herein stated penalties, upon the discretion of the court.
Sec. 6. If the owner and/or operator of the establishment found violating the provisions of
this ordinance is a corporation or a partnership, the penalty prescribed in Section 5 hereof
shall be imposed upon its president and/or General Manager or Managing Partner and/or
Manager, as the case maybe [sic].
Sec. 7. Any existing ordinance or any provision of any ordinance inconsistent to [sic] this
ordinance is deemed repealed.
Sec. 8. This Ordinance shall take effect on January 1, 1993.
SO ORDAINED.
xxx xxx xxx
2. To implement said city ordinance, then Acting City Mayor Amado L. Lucero issued Office Order No. 23,
Series of 1993 dated January 22, 1993 which reads as follows:
In the interest of public service and for purposes of City Ordinance No. PD 426-14-74, otherwise known as

"AN ORDINANCE REQUIRING ANY PERSON ENGAGED OR INTENDING TO ENGAGE IN ANY

BUSINESS, TRADE, OCCUPATION, CALLING OR PROFESSION OR HAVING IN HIS POSSESSION
ANY OF THE ARTICLES FOR WHICH A PERMIT IS REQUIRED TO BE HAD, TO OBTAIN FIRST A
MAYOR'S PERMIT" and "City Ordinance No. 15-92, AN ORDINANCE BANNING THE SHIPMENT OF
ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO
JANUARY 1, 1998, you are hereby authorized and directed to check or conduct necessary inspections on
cargoes containing live fish and lobster being shipped out from the Puerto Princesa Airport, Puerto Princesa
Wharf or at any port within the jurisdiction of the City to any point of destinations [sic] either via aircraft or
seacraft.
The purpose of the inspection is to ascertain whether the shipper possessed the required Mayor's Permit
issued by this Office and the shipment is covered by invoice or clearance issued by the local office of the
Bureau of Fisheries and Aquatic Resources and as to compliance with all other existing rules and regulations
on the matter.
Any cargo containing live fish and lobster without the required documents as stated herein must be held for
proper disposition.
In the pursuit of this Order, you are hereby authorized to coordinate with the PAL Manager, the PPA Manager,
the local PNP Station and other offices concerned for the needed support and cooperation. Further, that the
usual courtesy and diplomacy must be observed at all times in the conduct of the inspection.
Please be guided accordingly.
xxx xxx xxx
3. On February 19, 1993, the Sangguniang Panlalawigan, Provincial Government of Palawan enacted
Resolution No. 33 entitled: "A RESOLUTION PROHIBITING THE CATCHING, GATHERING,
POSSESSING, BUYING, SELLING AND SHIPMENT OF LIVE MARINE CORAL DWELLING
AQUATIC
ORGANISMS,
TO
WIT:
FAMILY: SCARIDAE (MAMENG), EPINE
PHELUS
FASCIATUS (SUNO). CROMILEPTES ALTIVELIS(PANTHER OR SENORITA), LOBSTER BELOW 200
GRAMS AND SPAWNING, TRIDACNA GIGAS(TAKLOBO), PINCTADA MARGARITEFERA (MOTHER
PEARL, OYSTERS, GIANT CLAMS AND OTHER SPECIES), PENAEUS MONODON (TIGER PRAWNBREEDER SIZE OR MOTHER), EPINEPHELUS SUILLUS (LOBA OR GREEN GROUPER) AND
FAMILY: BALISTIDAE (TROPICAL AQUARIUM FISHES) FOR A PERIOD FIVE (5) YEARS IN AND
COMING FROM PALAWAN WATERS", the full text of which reads as follows:
WHEREAS, scientific and factual researches [sic] and studies disclose that only five (5)
percent of the corals of our province remain to be in excellent condition as [a] habitat of
marine coral dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the destruction and devastation of the corals of our
province were principally due to illegal fishing activities like dynamite fishing, sodium
cyanide fishing, use of other obnoxious substances and other related activities;
WHEREAS, there is an imperative and urgent need to protect and preserve the existence of
the remaining excellent corals and allow the devastated ones to reinvigorate and regenerate
themselves into vitality within the span of five (5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of the [sic] R.A. 7160 otherwise known as the
Local Government Code of 1991 empowers the Sangguniang Panlalawigan to protect the
environment and impose appropriate penalties [upon] acts which endanger the environment
such as dynamite fishing and other forms of destructive fishing, among others.
NOW, THEREFORE, on motion by Kagawad Nelson P. Peneyra and upon unanimous
decision of all the members present;
Be it resolved as it is hereby resolved, to approve Resolution No. 33, Series of 1993 of the
Sangguniang Panlalawigan and to enact Ordinance No. 2 for the purpose, to wit:
ORDINANCE NO. 2
Series of 1993

BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN IN SESSION ASSEMBLED:

Sec. 1. TITLE This Ordinance shall be known as an "Ordinance Prohibiting the catching,
gathering, possessing, buying, selling and shipment of live marine coral dwelling aquatic
organisms, to wit: 1. Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno) 3.
Cromileptes altivelis (Panther or Senorita), lobster below 200 grams and spawning), 4.
Tridacna Gigas (Taklobo), 5. Pinctada Margaretefera (Mother Pearl, Oysters, Giant Clams
and other species), 6. Penaeus Monodon (Tiger Prawn-breeder size or mother), 7.
Epinephelus Suillus (Loba or Green Grouper) and 8. Family: Balistidae (T[r]opical
Aquarium Fishes) for a period of five (5) years in and coming from Palawan Waters.
Sec. II. PRELIMINARY CONSIDERATIONS
1. Sec. 2-A (Rep. Act 7160). It is hereby declared, the policy of the state that the territorial
and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to
enable them to attain their fullest development as self-reliant communities and make them
more effective partners in the attainment of national goals. Toward this end, the State shall
provide for [a] more responsive and accountable local government structure instituted
through a system of decentralization whereby local government units shall be given more
powers, authority, responsibilities and resources.
2. Sec. 5-A (R.A. 7160). Any provision on a power of [a] local Government Unit shall be
liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved
in favor of devolution of powers and of the lower government units. "Any fair and
reasonable doubts as to the existence of the power shall be interpreted in favor of the Local
Government Unit concerned."
3. Sec. 5-C (R.A. 7160). The general welfare provisions in this Code shall be liberally
interpreted to give more powers to local government units in accelerating economic
development and upgrading the quality of life for the people in the community.
4. Sec. 16 (R.A. 7160). General Welfare. Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance; and those which are
essential to the promotion of the general welfare.
Sec. III. DECLARATION OF POLICY. It is hereby declared to be the policy of the
Province of Palawan to protect and conserve the marine resources of Palawan not only for
the greatest good of the majority of the present generation but with [the] proper perspective
and consideration of [sic] their prosperity, and to attain this end, the Sangguniang
Panlalawigan henceforth declares that is (sic) shall be unlawful for any person or any
business entity to engage in catching, gathering, possessing, buying, selling and shipment of
live marine coral dwelling aquatic organisms as enumerated in Section 1 hereof in and
coming out of Palawan Waters for a period of five (5) years;
Sec. IV. PENALTY CLAUSE. Any person and/or business entity violating this Ordinance
shall be penalized with a fine of not more than Five Thousand Pesos (P5,000.00), Philippine
Currency, and/or imprisonment of six (6) months to twelve (12) months and confiscation and
forfeiture of paraphernalias [sic] and equipment in favor of the government at the discretion
of the Court;
Sec. V. SEPARABILITY CLAUSE. If for any reason, a Section or provision of this
Ordinance shall be held as unconditional [sic] or invalid, it shall not affect the other
provisions hereof.
Sec. VI. REPEALING CLAUSE. Any existing Ordinance or a provision of any ordinance
inconsistent herewith is deemed modified, amended or repealed.
Sec. VII. EFFECTIVITY This Ordinance shall take effect ten (10) days after its
publication.
SO ORDAINED.

xxx xxx xxx

4. The respondents implemented the said ordinances, Annexes "A" and "C" hereof thereby depriving all the
fishermen of the whole province of Palawan and the City of Puerto Princesa of their only means of livelihood
and the petitioners Airline Shippers Association of Palawan and other marine merchants from performing
their lawful occupation and trade;
5. Petitioners Alfredo Tano, Baldomero Tano, Teocenes Midello, Angel de Mesa, Eulogio Tremocha, and
Felipe Ongonion, Jr. were even charged criminally under criminal case no. 93-05-C in the 1st Municipal
Circuit Trial Court of Cuyo-Agutaya-Magsaysay, an original carbon copy of the criminal complaint dated
April 12, 1993 is hereto attached as Annex "D"; while xerox copies are attached as Annex "D" to the copies of
the petition;
6. Petitioners Robert Lim and Virginia Lim, on the other hand, were charged by the respondent PNP with the
respondent City Prosecutor of Puerto Princess City, a xerox copy of the complaint is hereto attached as Annex
"E";
Without seeking redress from the concerned local government units, prosecutor's office and courts, petitioners directly
invoked our original jurisdiction by filing this petition on 4 June 1993. In sum, petitioners contend that:
First, the Ordinances deprived them of due process of law, their livelihood, and unduly restricted them from the
practice of their trade, in violation of Section 2, Article XII and Sections 2 and 7 of Article XIII of the 1987
Constitution.
Second, Office Order No. 23 contained no regulation nor condition under which the Mayor's permit could be granted
or denied; in other words, the Mayor had the absolute authority to determine whether or not to issue the permit.
Third, as Ordinance No. 2 of the Province of Palawan "altogether prohibited the catching, gathering, possession,
buying, selling and shipping of live marine coral dwelling organisms, without any distinction whether it was caught or
gathered through lawful fishing method," the Ordinance took away the right of petitioners-fishermen to earn their
livelihood in lawful ways; and insofar as petitioners-members of Airline Shippers Association are concerned, they
were unduly prevented from pursuing their vocation and entering "into contracts which are proper, necessary, and
essential to carry out their business endeavors to a successful conclusion."
Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan is null and void, the criminal cases based thereon
against petitioners Tano and the others have to be dismissed.
In the Resolution of 15 June 1993 we required respondents to comment on the petition, and furnished the Office of the
Solicitor General with a copy thereof.
In their comment filed on 13 August 1993, public respondents Governor Socrates and Members of the Sangguniang
Panlalawigan of Palawan defended the validity of Ordinance No. 2, Series of 1993, as a valid exercise of the
Provincial Government's power under the general welfare clause (Section 16 of the Local Government Code of 1991
[hereafter, LGC]), and its specific power to protect the environment and impose appropriate penalties for acts which
endanger the environment, such as dynamite fishing and other forms of destructive fishing under Section 447 (a) (1)
(vi), Section 458 (a) (1) (vi), and Section 468 (a) (1) (vi), of the LGC. They claimed that in the exercise of such
powers, the Province of Palawan had "the right and responsibility . . . to insure that the remaining coral reefs, where
fish dwells [sic], within its territory remain healthy for the future generation." The Ordinance, they further asserted,
covered only live marine coral dwelling aquatic organismswhich were enumerated in the ordinance and excluded
other kinds of live marine aquatic organisms not dwelling in coral reefs; besides the prohibition was for only five (5)
years to protect and preserve the pristine coral and allow those damaged to regenerate.
Aforementioned respondents likewise maintained that there was no violation of the due process and equal protection
clauses of the Constitution. As to the former, public hearings were conducted before the enactment of the Ordinance
which, undoubtedly, had a lawful purpose and employed reasonable means; while as to the latter, a substantial
distinction existed "between a fisherman who catches live fish with the intention of selling it live, and a fisherman
who catches live fish with no intention at all of selling it live," i.e., "the former uses sodium cyanide while the latter
does not." Further, the Ordinance applied equally to all those belonging to one class.
On 25 October 1993 petitioners filed an Urgent Plea for the Immediate Issuance of a Temporary Restraining Order,
claiming that despite the pendency of this case, Branch 50 of the Regional Trial Court of Palawan was bent on
proceeding with Criminal Case No. 11223 against petitioners Danilo Tano, Alfredo Tano, Eulogio Tremocha,

Romualdo Tano, Baldomero Tano, Andres Linijan and Angel de Mesa for violation of Ordinance No. 2 of the
Sangguniang Panlalawigan of Palawan. Acting on said plea, we issued on 11 November 1993 a temporary restraining
order directing Judge Angel Miclat of said court to cease and desist from proceeding with the arraignment and pretrial of Criminal Case No. 11223.
On 12 July 1994, we excused the Office of the Solicitor General from filing a comment, considering that as claimed
by said office in its Manifestation of 28 June 1994, respondents were already represented by counsel.
The rest of the respondents did not file any comment on the petition.
In the resolution of 15 September 1994, we resolved to consider the comment on the petition as the Answer, gave due
course to the petition and required the parties to submit their respective memoranda. 2
On 22 April 1997 we ordered impleaded as party respondents the Department of Agriculture and the Bureau of
Fisheries and Aquatic Resources and required the Office of the Solicitor General to comment on their behalf. But in
light of the latter's motion of 9 July 1997 for an extension of time to file the comment which would only result in
further delay, we dispensed with said comment.
After due deliberation on the pleadings filed, we resolved to dismiss this petition for want of merit, and on 22 July
1997, assigned it to the ponente to write the opinion of the Court.
I
There are actually two sets of petitioners in this case. The first is composed of Alfredo Tano, Baldomero Tano, Danilo
Tano, Romualdo Tano, Teocenes Midello, Angel de Mesa, Eulogio Tremocha, Felipe Ongonion, Jr., Andres Linijan,
and Felimon de Mesa, who were criminally charged with violating Sangguniang Panlalawigan Resolution No. 33 and
Ordinance No. 2, Series of 1993, of the Province of Palawan, in Criminal Case No. 93-05-C of the 1st Municipal
Circuit Trial Court (MCTC) of Palawan; 3 and Robert Lim and Virginia Lim who were charged with violating City Ordinance No. 15-92 of Puerto Princesa
City and Ordinance No. 2, Series of 1993, of the Province of Palawan before the Office of the City Prosecutor of Puerto Princesa. 4 All of them, with the exception of Teocenes
Midello, Felipe Ongonion, Jr., Felimon de Mesa, Robert Lim and Virginia Lim, are likewise the accused in Criminal Case No. 11223 for the violation of Ordinance No. 2 of the
Sangguniang Panlalawigan of Palawan, pending before Branch 50 of the Regional Trial Court of Palawan. 5

The second set of petitioners is composed of the rest of the petitioners numbering seventy-seven (77), all of whom,
except the Airline Shippers Association of Palawan an alleged private association of several marine merchants
are natural persons who claim to be fishermen.
The primary interest of the first set of petitioners is, of course, to prevent the prosecution, trial and determination of
the criminal cases until the constitutionality or legality of the Ordinances they allegedly violated shall have been
resolved. The second set of petitioners merely claim that being fishermen or marine merchants, they would be
adversely affected by the ordinance's.
As to the first set of petitioners, this special civil for certiorari must fail on the ground of prematurity amounting to a
lack of cause of action. There is no showing that said petitioners, as the accused in the criminal cases, have filed
motions to quash the informations therein and that the same were denied. The ground available for such motions is
that the facts charged therein do not constitute an offense because the ordinances in question are unconstitutional. 6 It
cannot then be said that the lower courts acted without or in excess of jurisdiction or with grave abuse of discretion to justify recourse to the extraordinary remedy of certiorari or
prohibition. It must further be stressed that even if petitioners did file motions to quash, the denial thereof would not forthwith give rise to a cause of action under Rule 65 of the
Rules of Court. The general rule is that where a motion to quash is denied, the remedy therefrom is not certiorari, but for the party aggrieved thereby to go to trial without
prejudice to reiterating special defenses involved in said motion, and if, after trial on the merits an adverse decision is rendered, to appeal therefrom in the manner authorized by
law. 7 And, even where in an exceptional circumstance such denial may be the subject of a special civil action for certiorari, a motion for reconsideration must have to be filed to
allow the court concerned an opportunity to correct its errors, unless such motion may be dispensed with because of existing exceptional circumstances. 8 Finally, even if a
motion for reconsideration has been filed and denied, the remedy under Rule 65 is still unavailable absent any showing of the grounds provided for in Section 1 thereof. 9 For
obvious reasons, the petition at bar does not, and could not have, alleged any of such grounds.

As to the second set of petitioners, the instant petition is obviously one for DECLARATORY RELIEF, i.e., for a
declaration that the Ordinances in question are a "nullity . . . for being unconstitutional." 10 As such, their petition must
likewise fail, as this Court is not possessed of original jurisdiction over petitions for declaratory relief even if only questions
of law are involved, 11 it being settled that the Court merely exercises appellate jurisdiction over such petitions. 12
II
Even granting arguendo that the first set of petitioners have a cause of action ripe for the extraordinary writ
ofcertiorari, there is here a clear disregard of the hierarchy of courts, and no special and important reason or
exceptional and compelling circumstance has been adduced why direct recourse to us should be allowed. While we
have concurrent jurisdiction with Regional Trial courts and with the Court of Appeals to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence gives petitioners no

unrestricted freedom of choice of court forum, so we held in People v. Cuaresma. 13

This concurrence of jurisdiction is not . . . to be taken as according to parties seeking any of the writs an absolute
unrestrained freedom of choice of the court to which application therefor will be directed. There is after all
hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general
determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial
hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level
("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of
Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed
only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is
established policy. It is a policy necessary to prevent inordinate demands upon the Court's time and attention which
are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the
Court's docket. . . .

The Court feels the need to reaffirm that policy at this time, and to enjoin strict adherence thereto in the light
of what it perceives to be a growing tendency on the part of litigants and lawyers to have their applications for
the so-called extraordinary writs, and sometimes even their appeals, passed upon and adjudicated directly and
immediately by the highest tribunal of the land. . . .
In Santiago v. Vasquez, 14 this Court forcefully expressed that the propensity of litigants and lawyers to disregard the
hierarchy of courts must be put to a halt, not only because of the imposition upon the precious time of this Court, but also
because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be
remanded or referred to the lower court, the proper forum under the rules of procedure, or as better equipped to resolve the
issues since this Court is not a trier of facts. We reiterated "the judicial policy that this Court will not entertain direct resort
to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling
circumstances justify availment of a remedy within and calling for the exercise of [its] primary jurisdiction."
III
Notwithstanding the foregoing procedural obstacles against the first set of petitioners, we opt to resolve this case on
its merits considering that the lifetime of the challenged Ordinances is about to end. Ordinance No. 15-92 of the City
of Puerto Princesa is effective only up to 1 January 1998, while Ordinance No. 2 of the Province of Palawan, enacted
on 19 February 1993, is effective for only five (5) years. Besides, these Ordinances were undoubtedly enacted in the
exercise of powers under the new LGC relative to the protection and preservation of the environment and are thus
novel and of paramount importance. No further delay then may be allowed in the resolution of the issues raised.
It is of course settled that laws (including ordinances enacted by local government units) enjoy the presumption of
constitutionality. 15 To overthrow this presumption, there must be a clear and unequivocal breach of the Constitution, not
merely a doubtful or argumentative contradiction. In short, the conflict with the Constitution must be shown beyond
reasonable doubt. 16 Where doubt exists, even if well-founded, there can be no finding of unconstitutionality. To doubt is to
sustain. 17
After a scrutiny of the challenged Ordinances and the provisions of the Constitution petitioners claim to have been
violated, we find petitioners' contentions baseless and so hold that the former do not suffer from any infirmity, both
under the Constitution and applicable laws.
Petitioners specifically point to Section 2, Article XII and Sections 2 and 7, Article XIII of the Constitution as having
been transgressed by the Ordinances.
The pertinent portion of Section 2 of Article XII reads:
Sec. 2. . . .
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and
lagoons.
Sections 2 and 7 of Article XIII provide:
Sec. 2. The promotion of social justice shall include the commitment to create economic
opportunities based on freedom of initiative and self-reliance.

xxx xxx xxx

Sec. 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to
the preferential use of the communal marine and fishing resources, both inland and offshore. It shall
provide support to such fishermen through appropriate technology and research, adequate financial,
production, and marketing assistance, and other services. The State shall also protect, develop, and
conserve such resources. The protection shall extend to offshore fishing grounds of subsistence
fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the
utilization of marine and fishing resources.
There is absolutely no showing that any of the petitioners qualifies as a subsistence or marginal fisherman. In
their petition, petitioner Airline Shippers Association of Palawan is self-described as "a private association
composed of Marine Merchants;" petitioners Robert Lim and Virginia Lim, as "merchants;" while the rest of
the petitioners claim to be "fishermen," without any qualification, however, as to their status.
Since the Constitution does not specifically provide a definition of the terms "subsistence" or "marginal"
fishermen, 18 they should be construed in their general and ordinary sense. A marginal fisherman is an individual
engaged in fishing whose margin of return or reward in his harvest of fish as measured by existing price levels is
barely sufficient to yield a profit or cover the cost of gathering the fish, 19 while a subsistence fisherman is one
whose catch yields but the irreducible minimum for his livelihood. 20 Section 131(p) of the LGC (R.A. No. 7160)
defines a marginal farmer or fisherman as "an individual engaged in subsistence farming or fishing which shall be
limited to the sale, barter or exchange of agricultural or marine products produced by himself and his immediate
family." It bears repeating that nothing in the record supports a finding that any petitioner falls within these
definitions.
Besides, Section 2 of Article XII aims primarily not to bestow any right to subsistence fishermen, but to lay
stress on the duty of the State to protect the nation's marine wealth. What the provision merely recognizes is
that the State may allow, by law, cooperative fish farming, with priority to subsistence fishermen and
fishworkers in rivers, lakes, bays and lagoons. Our survey of the statute books reveals that the only provision
of law which speaks of a preferential right of marginal fishermen is Section 149 of the LGC, which
pertinently provides:
Sec. 149. Fishery Rentals, Fees and Charges. . . .
(b) The sangguniang bayan may:
(1) Grant fishery privileges to erect fish corrals, oyster, mussels or
other aquatic beds or bangus fry areas, within a definite zone of the
municipal waters, as determined by it: Provided, however, That
duly registered organizations and cooperatives of marginal
fishermen shall have the preferential right to such fishery privileges
....
In a Joint Administrative Order No. 3 dated 25 April 1996, the Secretary of the Department of Agriculture and
the Secretary of the Department of Interior and Local Government prescribed guidelines concerning the
preferential treatment of small fisherfolk relative to the fishery right mentioned in Section 149. This case,
however, does not involve such fishery right.
Anent Section 7 of Article XIII, it speaks not only of the use of communal marine and fishing resources, but
of their protection, development and conservation. As hereafter shown, the ordinances in question are meant
precisely to protect and conserve our marine resources to the end that their enjoyment may be guaranteed not
only for the present generation, but also for the generations to come.
The so-called "preferential right" of subsistence or marginal fishermen to the use of marine resources is not at
all absolute. In accordance with the Regalian Doctrine, marine resources belong to the State, and, pursuant to
the first paragraph of Section 2, Article XII of the Constitution, their "exploration, development and
utilization . . . shall be under the full control and supervision of the State." Moreover, their mandated
protection, development and conservation as necessarily recognized by the framers of the Constitution, imply
certain restrictions on whatever right of enjoyment there may be in favor of anyone. Thus, as to the
curtailment of the preferential treatment of marginal fishermen, the following exchange between
Commissioner Francisco Rodrigo and Commissioner Jose F.S. Bengzon, Jr., took place at the plenary session

of the Constitutional Commission:

MR. RODRIGO:
Let us discuss the implementation of this because I would not raise the hopes of our
people, and afterwards fail in the implementation. How will this be implemented?
Will there be a licensing or giving of permits so that government officials will know
that one is really a marginal fisherman? Or if policeman say that a person is not a
marginal fisherman, he can show his permit, to prove that indeed he is one.
MR. BENGZON:
Certainly, there will be some mode of licensing insofar as this is concerned and this
particular question could be tackled when we discuss the Article on Local
Governments whether we will leave to the local governments or to Congress on
how these things will be implemented. But certainly, I think our congressmen and
our local officials will not be bereft of ideas on how to implement this mandate.
xxx xxx xxx
MR. RODRIGO:
So, once one is licensed as a marginal fisherman, he can go anywhere in the
Philippines and fish in any fishing grounds.
MR. BENGZON:
Subject to whatever rules and regulations and local laws that may be passed, may
be existing or will be passed. 21 (emphasis supplied)
What must likewise be borne in mind is the state policy enshrined in the Constitution regarding the duty of
the State to protect and advance the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature. 22 On this score, in Oposa v. Factoran, 23 this Court declared:
While the right to a balanced and healthful ecology is to be found under the Declaration of Principles
the State Policies and not under the Bill of Rights, it does not follow that it is less important than any
of the civil and political rights enumerated in the latter. Such a right belongs to a different category of
rights altogether for it concerns nothing less than self-preservation and self-perpetuation aptly and
fittingly stressed by the petitioners the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic rights need not even be written in the
Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless
the rights to a balanced and healthful ecology and to health are mandated as state policies by the
Constitution itself, thereby highlighting their continuing importance and imposing upon the state a
solemn obligation to preserve the first and protect and advance the second, the day would not be too
far when all else would be lost not only for the present generation, but also for those to come
generations which stand to inherit nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it a correlative duty to refrain from
impairing the environment. . . .
The LGC provisions invoked by private respondents merely seek to give flesh and blood to the right of the
people to a balanced and healthful ecology. In fact, the General Welfare Clause, expressly mentions this right:
Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are essential to the promotion of the
general welfare. Within their respective territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and support the development
of appropriate and self-reliant scientific and technological capabilities, improve public morals,
enhance economic prosperity and social justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and convenience of their inhabitants. (emphasis

supplied).
Moreover, Section 5(c) of the LGC explicitly mandates that the general welfare provisions of the LGC "shall
be liberally interpreted to give more powers to the local government units in accelerating economic
development and upgrading the quality of life for the people of the community."
The LGC vests municipalities with the power to grant fishery privileges in municipal waters and impose
rentals, fees or charges therefor; to penalize, by appropriate ordinances, the use of explosives, noxious or
poisonous substances, electricity, muro-ami, and other deleterious methods of fishing; and to prosecute any
violation of the provisions of applicable fishery laws. 24 Further, the sangguniang bayan, the sangguniang
panlungsod and the sangguniang panlalawigan are directed to enact ordinances for the general welfare of the
municipality and its inhabitants, which shall include, inter alia, ordinances that "[p]rotect the environment and
impose appropriate penalties for acts which endanger the environment such as dynamite fishing and other forms of
destructive fishing . . . and such other activities which result in pollution, acceleration of eutrophication of rivers
and
lakes,
or
of
ecological
imbalance." 25
Finally, the centerpiece of LGC is the system of decentralization 26 as expressly mandated by the
Constitution.27 Indispensable to decentralization is devolution and the LGC expressly provides that "[a]ny
provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any
question thereon shall be resolved in favor of devolution of powers and of the lower local government unit. Any
fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit
concerned." 28 Devolution refers to the act by which the National Government confers power and authority upon
the various local government units to perform specific functions and responsibilities. 29
One of the devolved powers enumerated in the section of the LGC on devolution is the enforcement of fishery
laws in municipal waters including the conservation of mangroves. 30 This necessarily includes the enactment
of ordinances to effectively carry out such fishery laws within the municipal waters.
The term "municipal waters," in turn, includes not only streams, lakes, and tidal waters within the
municipality, not being the subject of private ownership and not comprised within the national parks, public
forest, timber lands, forest reserves, or fishery reserves, but also marine waters included between two lines
drawn perpendicularly to the general coastline from points where the boundary lines of the municipality or
city touch the sea at low tide and a third line parallel with the general coastline and fifteen kilometers from
it. 31 Under P.D. No. 704, the marine waters included in municipal waters is limited to three nautical miles from
the general coastline using the above perpendicular lines and a third parallel line.
These "fishery laws" which local government units may enforce under Section 17(b)(2)(i) in municipal waters
include: (1) P.D. No. 704; (2) P.D. No. 1015 which, inter alia, authorizes the establishment of a "closed
season" in any Philippine water if necessary for conservation or ecological purposes; (3) P.D. No. 1219 which
provides for the exploration, exploitation, utilization and conservation of coral resources; (4) R.A. No. 5474,
as amended by B.P. Blg. 58, which makes it unlawful for any person, association or corporation to catch or
cause to be caught, sell, offer to sell, purchase, or have in possession any of the fish specie called gobiidae or
"ipon" during closed season; and (5) R.A. No. 6451 which prohibits and punishes electrofishing, as well as
various issuances of the BFAR.
To those specifically devolved insofar as the control and regulation of fishing in municipal waters and the
protection of its marine environment are concerned, must be added the following:
1. Issuance of permits to construct fish cages within municipal waters;
2. Issuance of permits to gather aquarium fishes within municipal waters;
3. Issuance of permits to gather kapis shells within municipal waters;
4. Issuance of permits to gather/culture shelled mollusks within municipal waters;
5. Issuance of licenses to establish seaweed farms within municipal waters;
6. Issuance of licenses to establish culture pearls within municipal waters;
7. Issuance of auxiliary invoice to transport fish and fishery products; and
8. Establishment of "closed season" in municipal waters.

These functions are covered in the Memorandum of Agreement of 5 April 1994 between the Department of
Agriculture and the Department of Interior and Local Government.
In light then of the principles of decentralization and devolution enshrined in the LGC and the powers granted
therein to local government units under Section 16 (the General Welfare Clause), and under Sections 149,
447(a) (1) (vi), 458 (a) (1) (vi) and 468 (a) (1) (vi), which unquestionably involve the exercise of police
power, the validity of the questioned Ordinances cannot be doubted.
Parenthetically, we wish to add that these Ordinances find full support under R.A. No. 7611, otherwise known
as the Strategic Environmental Plan (SEP) for Palawan Act, approved on 19 June 1992. This statute adopts a
"comprehensive framework for the sustainable development of Palawan compatible with protecting and
enhancing the natural resources and endangered environment of the province," which "shall serve to guide the
local government of Palawan and the government agencies concerned in the formulation and implementation
of plans, programs and projects affecting said province." 32
At this time then, it would be appropriate to determine the relation between the assailed Ordinances and the
aforesaid powers of the Sangguniang Panlungsod of the City of Puerto Princesa and the Sangguniang
Panlalawigan of the Province of Palawan to protect the environment. To begin, we ascertain the purpose of
the Ordinances as set forth in the statement of purposes or declaration of policies quoted earlier.
It is clear to the Court that both Ordinances have two principal objectives or purposes: (1) to establish a
"closed season" for the species of fish or aquatic animals covered therein for a period of five years; and (2) to
protect the coral in the marine waters of the City of Puerto Princesa and the Province of Palawan from further
destruction due to illegal fishing activities.
The accomplishment of the first objective is well within the devolved power to enforce fishery laws in
municipal waters, such as P.D. No. 1015, which allows the establishment of "closed seasons." The devolution
of such power has been expressly confirmed in the Memorandum of Agreement of 5 April 1994 between the
Department of Agriculture and the Department of Interior and Local Government.
The realization of the second objective clearly falls within both the general welfare clause of the LGC and the
express mandate thereunder to cities and provinces to protect the environment and impose appropriate
penalties for acts which endanger the environment. 33
The destruction of coral reefs results in serious, if not irreparable, ecological imbalance, for coral reefs are
among nature's life-support systems. 34 They collect, retain and recycle nutrients for adjacent nearshore areas
such as mangroves, seagrass beds, and reef flats; provide food for marine plants and animals; and serve as a
protective shelter for aquatic organisms. 35 It is said that "[e]cologically, the reefs are to the oceans what forests are
to continents: they are shelter and breeding grounds for fish and plant species that will disappear without them." 36
The prohibition against catching live fish stems, in part, from the modern phenomenon of live-fish trade
which entails the catching of so-called exotic species of tropical fish, not only for aquarium use in the West,
but also for "the market for live banquet fish [which] is virtually insatiable in ever more affluent Asia. 37These
exotic species are coral-dwellers, and fishermen catch them by "diving in shallow water with corraline habitats and
squirting sodium cyanide poison at passing fish directly or onto coral crevices; once affected the fish are
immobilized [merely stunned] and then scooped by hand." 38 The diver then surfaces and dumps his catch into a
submerged net attached to the skiff. Twenty minutes later, the fish can swim normally. Back on shore, they are
placed in holding pens, and within a few weeks, they expel the cyanide from their system and are ready to be
hauled. They are then placed in saltwater tanks or packaged in plastic bags filled with seawater for shipment by air
freight to major markets for live food fish. 39 While the fish are meant to survive, the opposite holds true for their
former home as "[a]fter the fisherman squirts the cyanide, the first thing to perish is the reef algae, on which fish
feed. Days later, the living coral starts to expire. Soon the reef loses its function as habitat for the fish, which eat
both the algae and invertebrates that cling to the coral. The reef becomes an underwater graveyard, its skeletal
remains brittle, bleached of all color and vulnerable to erosion from the pounding of the waves." 40 It has been
found that cyanide fishing kills most hard and soft corals within three months of repeated application. 41
The nexus then between the activities barred by Ordinance No. 15-92 of the City of Puerto Princesa and the
prohibited acts provided in Ordinance No. 2, Series of 1993 of the Province of Palawan, on one hand, and the
use of sodium cyanide, on the other, is painfully obvious. In sum, the public purpose and reasonableness of
the Ordinances may not then be controverted.

As to Office Order No. 23, Series of 1993, issued by Acting City Mayor Amado L. Lucero of the City of
Puerto Princesa, we find nothing therein violative of any constitutional or statutory provision. The Order
refers to the implementation of the challenged ordinance and is not the Mayor's Permit.
The dissenting opinion of Mr. Justice Josue N. Bellosillo relies upon the lack of authority on the part of the
Sangguniang Panglungsod of Puerto Princesa to enact Ordinance No. 15, Series of 1992, on the theory that
the subject thereof is within the jurisdiction and responsibility of the Bureau of Fisheries and Aquatic
Resources (BFAR) under P.D. No. 704, otherwise known as the Fisheries Decree of 1975; and that, in any
event, the Ordinance is unenforceable for lack of approval by the Secretary of the Department of Natural
Resources (DNR), likewise in accordance with P.D. No. 704.
The majority is unable to accommodate this view. The jurisdiction and responsibility of the BFAR under P.D.
No. 704, over the management, conservation, development, protection, utilization and disposition of all
fishery and aquatic resources of the country is not all-encompassing. First, Section 4 thereof excludes from
such jurisdiction and responsibility municipal waters, which shall be under the municipal or city government
concerned, except insofar as fishpens and seaweed culture in municipal centers are concerned. This section
provides, however, that all municipal or city ordinances and resolutions affecting fishing and fisheries and any
disposition thereunder shall be submitted to the Secretary of the Department of Natural Resources for
appropriate action and shall have full force and effect only upon his approval. 42
Second, it must at once be pointed out that the BFAR is no longer under the Department of Natural Resources
(now Department of Environment and Natural Resources). Executive Order No. 967 of 30 June 1984
transferred the BFAR from the control and supervision of the Minister (formerly Secretary) Of Natural
Resources to the Ministry of Agriculture and Food (MAF) and converted it into a mere staff agency thereof,
integrating its functions with the regional offices of the MAF.
In Executive Order No. 116 of 30 January 1987, which reorganized the MAF, the BFAR was retained as an
attached agency of the MAF. And under the Administrative Code of 1987, 43 the BFAR is placed under the
Title concerning the Department of Agriculture. 44
Therefore, it is incorrect to say that the challenged Ordinance of the City of Puerto Princesa is invalid or
unenforceable because it was not approved by the Secretary of the DENR. If at all, the approval that should
be sought would be that of the Secretary of the Department of Agriculture. However, the requirement of
approval by the Secretary of the Department of Agriculture (not DENR) of municipal ordinances affecting
fishing and fisheries in municipal waters has been dispensed with in view of the following reasons:
(1) Section 534 (Repealing Clause) of the LGC expressly repeals or amends Sections 16 and 29 of P.D. No.
704 45 insofar as they are inconsistent with the provisions of the LGC.
(2) As discussed earlier, under the general welfare clause of the LGC, local government units have the
power, inter alia, to enact ordinances to enhance the right of the people to a balanced ecology. It likewise
specifically vests municipalities with the power to grant fishery privileges in municipal waters, and impose
rentals, fees or charges therefor; to penalize, by appropriate ordinances, the use of explosives, noxious or
poisonous substances, electricity, muro-ami, and other deleterious methods of fishing; and to prosecute any
violation of the provisions of applicable fishery laws. 46 Finally, it imposes upon the sangguniang bayan, the
sangguniang panlungsod, and the sangguniang panlalawigan the duty to enact ordinances to "[p]rotect the
environment and impose appropriate penalties for acts which endanger the environment such as dynamite fishing
and other forms of destructive fishing . . . and such other activities which result in pollution, acceleration of
eutrophication of rivers and lakes or of ecological imbalance." 47
In closing, we commend the Sangguniang Panlungsod of the City of Puerto Princesa and Sangguniang
Panlalawigan of the Province of Palawan for exercising the requisite political will to enact urgently needed
legislation to protect and enhance the marine environment, thereby sharing in the herculean task of arresting
the tide of ecological destruction. We hope that other local government units shall now be roused from their
lethargy and adopt a more vigilant stand in the battle against the decimation of our legacy to future
generations. At this time, the repercussions of any further delay in their response may prove disastrous, if not,
irreversible.
WHEREFORE, the instant petition is DISMISSED for lack of merit and the temporary restraining order
issued on 11 November 1993 is LIFTED.

No pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Padilla, Romero, Melo, Vitug, Francisco Panganiban and Torres, Jr., JJ., concur.
Regalado, J., is on leave.

Separate Opinions

MENDOZA, J., concurring:

I fully concur in the opinion of the Court written by Justice Davide. I write separately to emphasize two
points which I believe are important. The first is the need to uphold the presumption of validity of the
ordinances in this case in view of the total absence of evidence to undermine their factual basis. The second is
the need not to allow a shortcircuiting of the normal process of adjudication on the mere plea that unless we
take cognizance of petitions like this, by-passing the trial courts, alleged violations of constitutional rights
will be left unprotected, when the matter can very well be looked into by trial courts and in fact should be
brought there.
The ordinances in question in this case are conservation measures which the local governments of Palawan
have adopted in view of the widespread destruction caused by cyanide fishing of corals within their territorial
waters. At the very least, these ordinances must be presumed valid in the absence of evidence to show that the
necessary factual foundation for their enactment does not exist. Their invalidation at this point can result in
the untimely exoneration of otherwise guilty parties on the basis of doubtful constitutional claims.
Ordinance No. 2-93, which the Sangguniang Panlalawigan of Palawan adopted in 1993, prohibits, for a
period of five years, the "catching, gathering, possessing, buying, selling and shipment" of five fish and
lobsters. As originally enacted, the prohibition applied to eight species of fish and lobsters caught in the
waters of Palawan, namely, "1. Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno), 3. Cromileptes
altivelis (Panther or Seorita), lobster (below 200 grams and spawning), 4. Tridacna Gigas (Giant Clams or
Taklobo and other species), 5. Pinctada Margaritifera (Mother Pearl Oysters), 6. Penaeus Monodon (Tiger
Prawn breeder size or mother), 7. Epinephelus Suillus (Loba or Green Grouper) and 8. Family: Balistidae
(Tropical Aquarium Fishes)." 1 Later, however, the ordinance was amended to limit the ban to three species only, namely: mameng ( scaridae),
panther or seorita (cromileptes altivelis) and ornamental or aquarium fishes (balistidae). Violation of the ordinance is punishable by a fine of P5,000.00 and/or
imprisonment of not less than 6 nor more than 12 months and confiscation of the paraphernalia and equipment used in the commission of the offense. 2

Ordinance No. 2-93 was adopted by the Sangguniang Panlalawigan on the basis of a 1992 study submitted by
the Department of Agriculture, 3 showing that, as a result of the use of cyanide and other noxious substances for fishing, only 5% of the coral reefs
in the Province of Palawan remained in excellent condition as fish sanctuaries and habitats, while 75% was heavily damaged.

The rampant use of cyanide has been encouraged by the lucrative trade in live fishes which are shipped not
only to Manila but also abroad, principally to Hongkong, Taiwan and Malaysia. The fishes are sold to
gourmet restaurants because of the great demand for exotic food, to aquariums and to pet shops. In its issue of
July 19, 1993. Time Magazine 4 reported that the illicit trade in live animals is the third biggest contraband business in the world, after drugs and
arms, and identified the Philippines as a major source of tropical fishes for the global traffic in live fishes.

The use of cyanide enables fishermen to catch fish alive and in commercial quantity in a way not possible
with the use of such traditional methods as hook and line, fish traps, baklad and the like, which allows only
limited catch and often results in injuries to fishes and the loss of their scales, thereby reducing their survival
for transportation abroad. 5 Cyanide does not kill fish but only stuns them. The stunned creatures are then scooped up and placed in containers ready
for shipment across borders, national and transnational. What cyanide does, however, is poison the fragile reefs and cause them to die and cease as fish habitats. 6

Concern over the use of cyanide in fishing and its ill effect on the marine environment also prompted the
Sangguniang Panlungsod of Puerto Princesa to pass Ordinance No. 15-92, which makes it unlawful for any
person or business enterprise or company "to ship out from Puerto Princesa City to any point of destinations
either via aircraft or seacraft of any live fish and lobster except SEA BASS, CATFISH, MUDFISH and

MILKFISH FRIES." 7 The ban is for five years, from January 1, 1993 to January 1, 1998. The penalty for violation of the ordinance is a fine of not more
than P5,000.00 or imprisonment of not more than 12 months. 8

To enforce the ordinance, the mayor of Puerto Princesa ordered the inspection of cargoes of live fish and
lobsters leaving the city by air or sea. Inspectors are to ascertain if the shipper has a permit issued by the
office of the city mayor. Any cargo of live fish and lobster without a permit from the mayor's office will be
"held for proper disposition." 9
The ordinances in question are police power measures, enacted by the Province of Palawan and the City of
Puerto Princesa, pursuant to the Local Government Code of 1991 which makes it in fact their duty to enact
measures to "protect the environment and impose appropriate penalties for acts which endanger the
environment, such as dynamite fishing and other forms of destructive fishing. . . ." 10 There is no basis for the
claim in the dissenting opinion that the subject of these ordinances lies within the competence of the national
government. For the matter concerns a local problem, namely, the destruction of aquatic resources in the Province
of Palawan. For this reason the Solicitor General asked for leave to withdraw from this case. On the other hand, the
Department of Agriculture submitted its report on the extent of the devastation of coral reefs caused by illegal
fishing to the Sangguniang Panlalawigan of Palawan and thereby left the solution of the problem to be worked out
by the local authorities. It would therefore set back the policy of decentralization were this Court to sustain such a
claim.
Indeed, petitioners' challenge to the validity of the ordinances does not rest on the claim that the ordinances
are beyond the power of local governments to enact but on the ground that they deprive petitioners of their
means of livelihood and occupation and for that reason violate the Constitution of the Philippines. For
support, petitioners invoke the following constitutional provisions:
Art. XII, 2 . . . . .
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers,
lakes, bays and lagoons.
Art. XIII, 1: The Congress shall give highest priority to the enactment of measures that protect and
enhance the right of all the people to human dignity, reduce social, economic, and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the
common good.
Id., 7: The State shall protect the rights of subsistence fishermen, especially of local communities, to
the preferential use of the communal marine and fishing resources, both inland and offshore. It shall
provide support to such fishermen through appropriate technology and research, adequate financial,
production, and marketing assistance, and other services. The State shall also protect, develop, and
conserve such resources. The protection shall extend to offshore fishing grounds of subsistence
fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the
utilization of marine and fishing resources.
I cannot see how these provisions can, in any way, lend support to petitioners' contention that the ordinances
violate the Constitution. These provisions refer to the duty of the State to protect the nation's marine resources
for the exclusive use and enjoyment of Filipino citizens, to the preferential right of subsistence fishermen in
the use of such communal marine resources, and to their right to be protected, even in offshore fishing
grounds, against foreign intrusion. There is no question here of Filipino preference over aliens in the use of
marine resources. What is in issue is the protection of marine resources in the Province of Palawan. It was
precisely to implement Art. XII, 2 that the ordinances in question were enacted. For, without these marine
resources, it would be idle to talk of the rights of subsistence fishermen to be preferred in the use of these
resources.
It has been held that "as underlying questions of fact may condition the constitutionality of legislation of this
character, the presumption of constitutionality must prevail in the absence of some factual foundation of
record for overthrowing the statute." 11 No evidence has been presented by petitioners to overthrow the factual
basis of the ordinances that, as a result of the use of cyanide and other noxious substances for fishing, only 5%

of the coral reefs in Palawan was in excellent condition, that 75% had been heavily destroyed, and that because of
the thriving market for live fish and lobster here and abroad there was rampant illicit trade in live fish.

Nor has it been shown by petitioners that the local legislation here involved is arbitrary or unreasonable. It
has been held: "If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and
are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial
determination to that effect renders a court functus officio. . . . With the wisdom of the policy adopted, with
the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and
unauthorized to deal. . . ." 12
It is contended that neither Provincial Ordinance No. 2-93 nor City Ordinance No. 15-92 prohibits cyanide
fishing and therefore the prohibition against catching certain species of fish and their transportation is
"excessive and irrational." It is further argued that the ban is unreasonable because it is not limited to cyanide
fishing but includes even legitimate fishing.
The ban on the use of cyanide and other noxious substances is already provided for in other legislation. P.D.
No. 534, 2 punishes fishing by means of "explosives, obnoxious or poisonous substances or by the use of
electricity." Consequently, the ordinances in question can be seen as a necessary corollary of the prohibition
against illegal fishing contained in this Decree. By prohibiting the catching of certain fishes and lobsters,
Ordinance No. 2-93 in effect discourages cyanide fishing because, as already stated, cyanide is preferred in
catching fishes because it does not kill but only stuns them and thus preserves them for export to the world
market.
On the other hand, the claim that the ordinance sweeps overbroadly by "absolutely prohibit[ing] the catching,
gathering, buying and shipment of live fishes and marine coral resources by any and all means including
those lawfully executed or done in the pursuit of legitimate occupation" misconceives the principal purpose of
the ordinance, which is not so much to prohibit the use of cyanide for fishing as to rebuild corals because of
their destruction by cyanide fishing. This is clear from the "whereas" clauses of Resolution No. 33,
accompanying Ordinance No. 2-93:
WHEREAS, scientific and factual researches and studies disclose that only five (5) percent of the
corals of our province remain to be in excellent condition as habitat of marine coral dwelling aquatic
organisms;
WHEREAS, it cannot be gainsaid that the destruction and devastation of the corals of our province
were principally due to illegal fishing activities like dynamite fishing, sodium cyanide fishing, use of
other obnoxious substances and other related activities;
WHEREAS, there is an imperative and urgent need to protect and preserve the existence of the
remaining excellent corals and allow the devastated ones to reinvigorate and regenerate themselves
into vitality within the span of five (5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of R.A. 7160 otherwise known as the Local Government
Code of 1991 empowers the Sangguniang Panlalawigan to protect the environment and impose
appropriate penalties [for] acts which endanger the environment such as dynamite fishing and other
forms of destructive fishing, among others;
The principal aim of the ordinance is thus the preservation and rehabilitation of the corals. Only indirectly is
it also concerned with prohibiting the use of cyanide. That this is the aim of the ordinance can also be inferred
from the fact that the ban imposed by it on the catching and gathering of fishes is for a limited period (5
years) calculated to be the time needed for the growth and regeneration of the corals. Were the purpose of the
ordinance the prohibition of the use of cyanide for fishing, the ban would not be for a limited period only but
for all time.
I am not much moved by the plea that the ordinances deprive small fishermen of their means of livelihood
and occupation. The ban imposed by Ordinance No. 2-93, as amended, covers only three species, i.e.,
mameng (scaridae), panther or seorita (cromilepres altivelis) and ornamental aquarium fishes (balistiedae),
which are prized in the black market. With respect to other species, it is open season for legitimate fishermen.
On the other hand, the ban imposed by Ordinance No. 15-92 allows the transportation and shipment of sea
bass, catfish, mudfish and milkfish fries. The ban imposed by the two ordinances is limited to five years. It is
thus limited both as to scope and as to period of effectivity. There is, on the other hand, the imperative

necessity for measures to prevent the extinction of certain species of fish.

Indeed, the burden of showing that there is no reasonable relation between the end and the means adopted in
this case is not on the local governments but on petitioners because of the presumption that a regulatory
statute is valid in the absence of factual evidence to the contrary. As held in United States v.Salaveria. 13 "The
presumption is all in favor of validity. . . The councilors must, in the very nature of things, be familiar with the
necessities of their particular municipality and with all the facts and circumstances which surround the subject, and
necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the
regulations are essential to the well being of the people. . . . The Judiciary should not lightly set aside legislative
action when there is not a clear invasion of personal or property rights under the guise of police regulation."
Finally, petitioners question Office Order No. 23, s. of 1993, of the city mayor of Puerto Princesa, for being
allegedly vague. This order prohibits the transportation of fish outside the city without permit from the
mayor's office. Petitioners contend that the order does not state under what condition a permit may be granted
and, consequently, leaves it to the absolute discretion of the mayor when to grant and when to deny a permit.
The questioned paragraph of the order states:
The purpose of the inspection is to ascertain whether the shipper possessed the required Mayor's
Permit issued by this Office and the shipment is covered by invoice or clearance issued by the local
office of the Bureau of Fisheries and Aquatic Resources and as to compliance with all other existing
rules and regulations on the matter.
This contention is untenable. As the office order is intended to implement City Ordinance No. 15-92, resort
must be made to the ordinance in order to determine the scope of such office order. As already noted, the
ordinance prohibits the shipment out of Puerto Princesa of live fish and lobsters, with the exception of catfish,
mudfish and milkfish fries. Consequently, a permit may be denied if it is for the transportation of fishes which
are covered by the ban, but not for those not covered by it. This is the common sense meaning of the office
order in question. Criminal laws must be precisely drawn, but, as Justice Holmes once said, "We agree to all
the generalities about not supplying criminal laws with what they omit, but there is no canon against using
common sense in construing laws as saying what they obviously mean." 14
One final point. This case was brought to this Court on the bare bones of the ordinances, on the mere claim of
petitioner Alfredo Tano and his 83 copetitioners that they are subsistence fishermen. The constitutional
protection refers to small fishermen who depend on the sea for their existence. Ten of the petitioners, led by
Alfredo Tano, are accused in the Municipal Circuit Trial Court of possession of the species covered by
Provincial Ordinance No. 2-93, while two, Roberto Lim and Virginia Lim, are charged with violation of the
two ordinances in the City Prosecutor's Office. There is no telling from the records of this case whether
petitioners are subsistence fishermen or simply impecunious individuals selling their catch to the big
businessmen. The other petitioners are admittedly fish traders, members of an association of airline shippers,
to whom the constitutional provisions obviously do not apply.
The judicial invalidation of the ordinances in this case could undermine the on-going trial of some of
petitioners. Instead of leaving the determination of the validity of the ordinances to the trial court, where
some of petitioners are facing charges, this Court will be shortcircuiting the criminal process by prematurely
passing upon the constitutional questions and indirectly on the criminal liability of some of the petitioners.
This is a task which should await the development of evidence of record.
Indeed because of the unsatisfactory abstractness of the record, this case should not have been brought here.
The mere fact that some of petitioners are facing prosecution for violation of the ordinances is no reason for
entertaining their suit. Our jurisdiction is limited to cases and controversies. Who are petitioners? What is the
impact of the ordinance on their economic situation? Are the factual bases of the two ordinances supported by
evidence? These questions must be raised in the criminal trial or in a suit brought in the trial court so that
facts necessary to adjudicate the constitutional questions can be presented. Nothing can take the place of the
flesh and blood of litigation to assess the actual operation of a statute and thus ground the judicial power more
firmly.
Petitioners justify the filing of the present action in this Court on the ground that constitutional questions must
be raised at the earliest time. That is true, but it does not mean that the questions should be presented to the
Supreme Court first hand. Moreover, the rule is not absolute. Constitutional questions like those invoked by
petitioners can be raised anytime, even in a motion for reconsideration, if their resolution is necessary to the

decision of an actual case or controversy, as our recent resolution 15 of the constitutionality of R.A. No. 7659,
reimposing the death penalty, amply demonstrates.
Romero, Melo, Puno and Francisco, JJ., concur.

BELLOSILLO, J., dissenting:

It is settled rule that where the provisions of the law are clear and unambiguous there is no room for
interpretation. The duty of the court is only to apply the law. The exception to such rule cannot be justified on
the sole basis of good motives or noble objectives. For it is also basic that the end does not justify the means.
The petition raises significant constitutional questions. While petitioners apparently instituted the action to
enjoin their criminal prosecution, the issue boils down to whether the subject ordinances of Palawan and
Puerto Princesa are valid and enforceable as to authorize the criminal prosecution of those charged with
violation thereof.
Notwithstanding the procedural limitations strictly applied in the majority opinion to render the petition
dismissible on grounds of prematurity and lack of real interest in the controversy, the case clearly falls under
the exceptions allowed by law. The petition, I submit, can be properly treated as a special civil action
for certiorari and prohibition under Rule 65 of the Rules of Court to correct errors of jurisdiction committed
by the lower court arising from the implementation of a void ordinance. Even if the purpose of the petition is
for declaratory relief, if the petition has far-reaching implications and raises questions that should be resolved
as they involve national interest, it may be treated as a special civil action under Rule 65. 1 The mere absence of a prior
motion to quash the Information in the trial court should not prevent the accused, petitioners herein, from seeking to render null and void the criminal proceedings
below.

In criminal cases, when the constitutionality or validity of a law or ordinance is essentially involved, the same
may be raised at any stage of the proceedings. It can also be considered by the appellate court at any time if it
involves the jurisdiction of the lower Court. 2 Further, under Sec. 8, Rule 117, of the Rules on Criminal Procedure, the failure of the accused
to assert any ground of a motion to quash before he pleads to the Complaint or Information either because he did not file a motion to quash or failed to allege the
same in the motion shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense
charged, extinction of the offense or penalty, and jeopardy.

Petitioners are proper parties to set aside the proceedings in the trial court. A proper party is one who has
sustained or is in immediate danger of sustaining an injury as a result of the act complained of. Petitioners
have been criminally charged and arrested for alleged violation of the ordinances in question. Consequently,
unless the trial court is enjoined from continuing with the proceedings, petitioners are in danger of being
convicted and punished under ordinances which they allege to be invalid and ineffective. In fact this Court
initially recognized the real interest of petitioners in instituting the action when it issued a restraining order
directing Judge Angel R. Miclat to cease and desist until further orders from proceeding with the arraignment
and pre-trial of People v. Alfredo Tano, et al., Crim. Case No. 11223, for violation of Resolution No. 2-93 of
the Sangguniang Panlalawigan of Palawan, and Ordinance No. 15-92 of the Sangguniang Panlungsod of
Puerto Princesa City.
The question to be resolved is whether Resolution No. 2-93, Office Order No. 23 and Ordinance No. 15-92
are constitutional, valid and enforceable. By considering the purpose and objective of the ordinances as
laudable, the majority adopts the affirmative view in consonance with the general welfare clause and principle
of devolution well-rooted in the Local Government Code of 1991.
While I agree with the majority that the local leaders of Palawan and Puerto Princesa City be commended for
their efforts to uplift and protect the environment and natural resources within their areas, the general welfare
clause is not the sole criterion to determine the validity or constitutionality of the ordinances. In Magtajas
v. Pryce Properties Corporation, 3 we reiterated that the well-established tests of a valid ordinance are: (a) It must not contravene the Constitution
or any statute; (b) It must not be unfair or oppressive; (c) It must not be partial or discriminatory; (d) It must not prohibit but may regulate trade; (e) It must be
general and consistent with public policy; and, (f) It must not be unreasonable.

As admitted by the majority, among our existing statutes on fishing and fishery or aquatic resources are P.D.
Nos. 704, 1015 and 1219. P.D. No. 704 is titled "Revising and Consolidating All Laws and Decrees Affecting
Fishing and Fisheries." With the enactment of the Local Government Code of 1991, only Secs. 16 and 29 of
P.D. No. 704 were expressly repealed. All the rest of the provisions of P.D. No. 704 remain valid and
effective, Sec. 4 of which is enlightening

Sec. 4. Jurisdiction of the Bureau (of Fisheries and Aquatic Resources). The Bureau shall have
jurisdiction and responsibility in the management, conservation, development, protection, utilization
and disposition of all fishery and aquatic resources of the country except municipal waters which
shall be under the municipal or city government concerned: Provided, That fishpens and seaweed
culture in municipal centers shall be under the jurisdiction of the Bureau: Provided, further, That all
municipal or city ordinances and resolutions affecting fishing and fisheries and any disposition
thereunder shall be submitted to the Secretary for appropriate action and shall have full force and
effect only upon his approval. The Bureau shall also have authority to regulate and supervise the
production, capture and gathering of fish and fishery/aquatic products.
There is no doubt that under P.D. No. 704 fishing, fishery and aquatic resources in municipal waters are under
the jurisdiction of the municipal or city government concerned. However, the same decree imposes a
mandatory requirement directing municipal or city governments to submit ordinances enacted pertinent to
fishing and fishery resources to the Secretary of Agriculture who now has control and supervision over the
Bureau of Fisheries and Aquatic Resources (BFAR). The ordinances will attain full force and effect only upon
the approval of the Secretary of Agriculture.
Ordinance 15-92 of Puerto Princesa City, admittedly, was not submitted to the Secretary of Agriculture
through the BFAR for approval. Such failure of compliance with the law prevented it from becoming valid
and effective. Consequently, Office Order No. 23 of the Mayor of Puerto Princesa City which seeks to
implement and enforce Ordinance No. 15-92 is also ineffective as there is nothing to implement.
To say that Sec. 4 of P.D. No. 704 was impliedly repealed by the Local Government Code is gratuitous. For, if
it was the intention of the legislature to dispense with the requirement of prior approval by the Secretary of
Agriculture of ordinances pertinent to fishery resources, it would. have expressly repealed Sec. 4 when, in
fact, it did so with Secs. 16 and 29 of P.D. No. 704. Cases abound holding that a repeal by implication is not
presumed or favored considering that the legislature is presumed to be aware of existing laws; ordinarily, if it
intends to revoke a statute it would manifest such intention in express terms. 4 Before such a repeal is deemed to exist it
should be shown that the statutes or statutory provisions deal with the same subject matter and that the latter be inconsistent with the former. There must be a
showing of repugnancy clear and convincing in character. The language used in the latter statute must be such as to render it irreconcilable with what has been
formerly enacted. An inconsistency that falls short of that standard does not suffice. In fact, there is no inconsistency between the Local Government Code and P.D.
No. 704 as amended. While the Local Government Code vests power upon the local government to enact ordinances for the general welfare of its inhabitants, such
power is subject to certain limitations imposed by the Code itself and by other statutes. When the legislature failed to repeal Sec. 4 of P.D. No. 704 it accepted and
recognized a limitation on the power of the local government to enact ordinances relative to matters affecting fishery and aquatic resources. A reading of particular
provisions of the Local Government Code itself will reveal that devolution on the powers of the local government pertaining to the protection of environment is
limited and not all-encompassing, as will be discussed in the succeeding paragraphs.

Further, while the Local Government Code is a general law on the powers, responsibilities and composition of
different local government units, P.D. No. 704 is a special law dealing with the protection and conservation of
fishing and aquatic resources including those in the municipal waters. Hence, the special law should prevail
over the general law.
There is also P.D. No. 1015 which vests upon the Secretary of Agriculture the authority to establish closed
seasons. Another existing law on fisheries which has not been repealed by the Local Government Code is P.D.
No. 1219, which provides for the exploration, exploitation, utilization and conservation of coral resources.
Section 4 thereof provides that the decree shall be implemented by the Secretary of Environment and Natural
Resources who shall have jurisdiction and responsibility in the exploration, exploitation, utilization and
conservation of coral resources. Section 6 authorizes the Secretary to issue special permit to any person or
institution to gather in limited quantities any coral for scientific or educational purposes. Section 10
empowers the Secretary to promulgate rules and regulations for the implementation of this law.
It is true that police power can be exercised through the general welfare clause. But, while police power is
inherent in a state, it is not so in municipal corporations or local governments. In order that a local
government may exercise police power, there must be a legislative grant which necessarily sets the limits for
the exercise of the power. 5 In this case, Congress has enacted the Local Government Code which provides the standards as well as the limitations in
the exercise of the police power by the local government unit.

Section 2 of the Local Government Code provides for a system of decentralization whereby local government
units are given more powers, authority, responsibilities and resources, and the process shall proceed from the
national government to the local government units. However, under Sec 3, par. (i), of the Local Government
Code, the operative principles of decentralization upon the environment and natural resources are not absolute
when it is provided therein that "local government units shall share with the national government the

responsibility in the management and maintenance of ecological balance within their territorial jurisdiction,
subject to the provisions of this Code and national policies." The national policies mentioned here refer to
existing policies which the DENR and other government agencies concerned with the environment may
implement at any given moment. The national policies are embodied in existing laws, rules and regulations
pertaining to environment and natural resources, such as P.D. Nos. 704 and 1219 relating to fishery resources.
The above provision was crafted to make sure that local government enactments do not supplant or negate
national government policies on environment. 6 This is precisely the reason why the Local Government Code did not repeal Sec. 4 of P.D.
NO. 704 requiring prior submission to and approval by the Secretary of Agriculture of ordinances relative to fishery and aquatic resources. Needless to stress, the
approval of the Secretary is necessary in order to ensure that these ordinances are in accordance with the laws on fisheries and national policies. Likewise, the
jurisdiction of the Secretary of Environment and Natural Resources over coral resources under P.D. No. 1219 remains.

The core of the devolution adopted by the Local Government Code is found in Sec. 17 thereof which
reiterates the basic services and facilities to be rendered by the local governments. With respect to the
protection and conservation of fisheries, Sec. 17, par. 2 (i), specifically provides that the municipality shall
conduct "extension and on-site research services and facilities related to agriculture and fishery activities
which include dispersal of livestock and poultry, fingerlings and other seeding materials for aquaculture
. . . . and enforcement of fishery laws in municipal waters including the conservation of mangroves . . . ." The
power devolved upon the municipality under the Local Government Code is the enforcement of existing
fishery laws of the State and not the enactment thereof. While a local government unit may adopt ordinances
upon subjects covered by law or statute, such ordinances should be in accordance with and not repugnant to
the law. 7 In view thereof, ordinances which may be enacted by the municipality or city should be pursuant to the provisions of P.D. Nos. 704, 1015 and 1219.
Thus, under the provisions of Secs. 447, par. 1 (vi), 458, par. 1 (vi) and 468, par. 1 (vi), the municipality, city and province respectively may approve ordinances
protecting the environment by specifically penalizing only those acts which endanger the environment such as dynamite fishing and other forms of destructive
fishing which are already prohibited under P.D. Nos. 704 and 1219, and other laws on illegal fishing. 8

The questioned ordinances may also be struck down for being not only a prohibitory legislation but also an
unauthorized exercise of delegation of powers. An objective, however worthy or desirable it may be, such as
the protection and conservation of our fisheries in this case, can be attained by a measure that does not
encompass too wide a field. The purpose can be achieved by reasonable restrictions rather than by absolute
prohibition. Local governments are not possessed with prohibitory powers but only regulatory powers under
the general welfare clause. 9 They cannot therefore exceed the powers granted to them by the Code by altogether prohibiting fishing and selling for
five (5) years all live fishes through Ordinance No. 15-92 and coral organisms through Ordinance No. 2-93 involving even lawful methods of fishing.

These prohibitions are tantamount to the establishment of a closed season for fish and aquatic resources
which authority is not among those powers vested by the Local Government Code to the local government
units. For the authority to establish a closed season for fisheries is vested upon the Secretary of Agriculture by
virtue of P.D. Nos. 704 and 1015 and in the Secretary of Environment and Natural resources pursuant to P.D.
No. 1219 in relation to coral resources. The power of the local governments is confined and limited to
ensuring that these national fishery laws are implemented and enforced within their territorial jurisdictions.
Hence, any memorandum of agreement which might have been executed by the Department of Agriculture or
Department of Environment and Natural Resources granting additional powers and functions to the local
governments which are not vested upon the latter by the Local Government Code because such powers are
covered by existing statutes, is an undue delegation of power and, consequently, null and void.
The majority also cites R.A. No. 7611, otherwise known as the Strategic Environmental Plan (SEP) for
Palawan Act, as proof of the power of the local governments of Palawan and Puerto Princesa City to issue the
assailed ordinances. Although the objectives of R.A. No. 7611 and of the ordinances are one and the
same, i.e., the protection, conservation and development of natural resources, the former does not grant
additional powers to the local governments pertaining to the environment. In fact, the law adopts a
comprehensive framework which shall serve to direct and guide local governments and national government
agencies in the implementation of programs and projects affecting Palawan. With the enactment of this Act,
the local governments are mandated to coordinate and align their developmental plans, projects and budgets
in accord with the framework of the SEP. It can be said that this is another limitation on the exercise of police
power by the local governments of Palawan and Puerto Princesa City because the governance,
implementation and policy direction of the SEP shall be exercised by the Palawan Council for Sustainable
Development (PCSD) which is under the Office of the President.
Finally, I find unreasonable Resolution No. 2-93 of Palawan and Ordinance No. 15-92 of Puerto Princesa
City. The prohibitions set forth are not germane to the accomplishment of their goals. Ordinance No. 15-92 is
aimed to free effectively the marine resources of Puerto Princesa from cyanide and other obnoxious

substances. But the means to achieve this objective borders on the excessive and irrational, for the edict
would absolutely ban the shipment of live fishes and lobsters out of the city for a period of five (5) years
without prohibiting cyanide fishing itself which is the professed goal of the ordinance. The purpose of
Resolution No. 2-93, on the other hand, is to protect and preserve all marine coral-dwelling organisms from
devastation and destruction by illegal fishing activities, e.g., dynamite fishing, sodium cyanide fishing, and
the use of other obnoxious substances. But in absolutely prohibiting the catching, gathering, buying and
shipment of live fishes and marine coral resources by any means including those lawfully executed or done in
the pursuit of legitimate occupation, the ordinance overstepped the reasonable limits and boundaries of
its raison d'etre. This I cannot help viewing as plain arbitrariness masquerading as police power. For the
consequent deprivation of the main source of livelihood of the people of Palawan can only be regarded as
utter depravation of this awesome power of the State.
For all the foregoing, I vote to grant the petition.
Kapunan and Hermosisima, Jr., JJ., concur.

Separate Opinions
MENDOZA, J., concurring:
I fully concur in the opinion of the Court written by Justice Davide. I write separately to emphasize two
points which I believe are important. The first is the need to uphold the presumption of validity of the
ordinances in this case in view of the total absence of evidence to undermine their factual basis. The second is
the need not to allow a shortcircuiting of the normal process of adjudication on the mere plea that unless we
take cognizance of petitions like this, by-passing the trial courts, alleged violations of constitutional rights
will be left unprotected, when the matter can very well be looked into by trial courts and in fact should be
brought there.
The ordinances in question in this case are conservation measures which the local governments of Palawan
have adopted in view of the widespread destruction caused by cyanide fishing of corals within their territorial
waters. At the very least, these ordinances must be presumed valid in the absence of evidence to show that the
necessary factual foundation for their enactment does not exist. Their invalidation at this point can result in
the untimely exoneration of otherwise guilty parties on the basis of doubtful constitutional claims.
Ordinance No. 2-93, which the Sangguniang Panlalawigan of Palawan adopted in 1993, prohibits, for a
period of five years, the "catching, gathering, possessing, buying, selling and shipment" of five fish and
lobsters. As originally enacted, the prohibition applied to eight species of fish and lobsters caught in the
waters of Palawan, namely, "1. Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno), 3. Cromileptes
altivelis (Panther or Seorita), lobster (below 200 grams and spawning), 4. Tridacna Gigas (Giant Clams or
Taklobo and other species), 5. Pinctada Margaritifera (Mother Pearl Oysters), 6. Penaeus Monodon (Tiger
Prawn breeder size or mother), 7. Epinephelus Suillus (Loba or Green Grouper) and 8. Family: Balistidae
(Tropical Aquarium Fishes)." 1 Later, however, the ordinance was amended to limit the ban to three species only, namely: mameng ( scaridae),
panther or seorita (cromileptes altivelis) and ornamental or aquarium fishes (balistidae). Violation of the ordinance is punishable by a fine of P5,000.00 and/or
imprisonment of not less than 6 nor more than 12 months and confiscation of the paraphernalia and equipment used in the commission of the offense. 2

Ordinance No. 2-93 was adopted by the Sangguniang Panlalawigan on the basis of a 1992 study submitted by
the Department of Agriculture, 3 showing that, as a result of the use of cyanide and other noxious substances for fishing, only 5% of the coral reefs
in the Province of Palawan remained in excellent condition as fish sanctuaries and habitats, while 75% was heavily damaged.

The rampant use of cyanide has been encouraged by the lucrative trade in live fishes which are shipped not
only to Manila but also abroad, principally to Hongkong, Taiwan and Malaysia. The fishes are sold to
gourmet restaurants because of the great demand for exotic food, to aquariums and to pet shops. In its issue of
July 19, 1993. Time Magazine 4 reported that the illicit trade in live animals is the third biggest contraband business in the world, after drugs and
arms, and identified the Philippines as a major source of tropical fishes for the global traffic in live fishes.

The use of cyanide enables fishermen to catch fish alive and in commercial quantity in a way not possible
with the use of such traditional methods as hook and line, fish traps, baklad and the like, which allows only
limited catch and often results in injuries to fishes and the loss of their scales, thereby reducing their survival
for transportation abroad. 5 Cyanide does not kill fish but only stuns them. The stunned creatures are then scooped up and placed in containers ready
for shipment across borders, national and transnational. What cyanide does, however, is poison the fragile reefs and cause them to die and cease as fish habitats. 6

Concern over the use of cyanide in fishing and its ill effect on the marine environment also prompted the
Sangguniang Panlungsod of Puerto Princesa to pass Ordinance No. 15-92, which makes it unlawful for any
person or business enterprise or company "to ship out from Puerto Princesa City to any point of destinations
either via aircraft or seacraft of any live fish and lobster except SEA BASS, CATFISH, MUDFISH and
MILKFISH FRIES." 7 The ban is for five years, from January 1, 1993 to January 1, 1998. The penalty for violation of the ordinance is a fine of not more
than P5,000.00 or imprisonment of not more than 12 months. 8

To enforce the ordinance, the mayor of Puerto Princesa ordered the inspection of cargoes of live fish and
lobsters leaving the city by air or sea. Inspectors are to ascertain if the shipper has a permit issued by the
office of the city mayor. Any cargo of live fish and lobster without a permit from the mayor's office will be
"held for proper disposition." 9
The ordinances in question are police power measures, enacted by the Province of Palawan and the City of
Puerto Princesa, pursuant to the Local Government Code of 1991 which makes it in fact their duty to enact
measures to "protect the environment and impose appropriate penalties for acts which endanger the
environment, such as dynamite fishing and other forms of destructive fishing. . . ." 10 There is no basis for the
claim in the dissenting opinion that the subject of these ordinances lies within the competence of the national
government. For the matter concerns a local problem, namely, the destruction of aquatic resources in the Province
of Palawan. For this reason the Solicitor General asked for leave to withdraw from this case. On the other hand, the
Department of Agriculture submitted its report on the extent of the devastation of coral reefs caused by illegal
fishing to the Sangguniang Panlalawigan of Palawan and thereby left the solution of the problem to be worked out
by the local authorities. It would therefore set back the policy of decentralization were this Court to sustain such a
claim.
Indeed, petitioners' challenge to the validity of the ordinances does not rest on the claim that the ordinances
are beyond the power of local governments to enact but on the ground that they deprive petitioners of their
means of livelihood and occupation and for that reason violate the Constitution of the Philippines. For
support, petitioners invoke the following constitutional provisions:
Art. XII, 2 . . . . .
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers,
lakes, bays and lagoons.
Art. XIII, 1: The Congress shall give highest priority to the enactment of measures that protect and
enhance the right of all the people to human dignity, reduce social, economic, and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the
common good.
Id., 7: The State shall protect the rights of subsistence fishermen, especially of local communities, to
the preferential use of the communal marine and fishing resources, both inland and offshore. It shall
provide support to such fishermen through appropriate technology and research, adequate financial,
production, and marketing assistance, and other services. The State shall also protect, develop, and
conserve such resources. The protection shall extend to offshore fishing grounds of subsistence
fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the
utilization of marine and fishing resources.
I cannot see how these provisions can, in any way, lend support to petitioners' contention that the ordinances
violate the Constitution. These provisions refer to the duty of the State to protect the nation's marine resources
for the exclusive use and enjoyment of Filipino citizens, to the preferential right of subsistence fishermen in
the use of such communal marine resources, and to their right to be protected, even in offshore fishing
grounds, against foreign intrusion. There is no question here of Filipino preference over aliens in the use of
marine resources. What is in issue is the protection of marine resources in the Province of Palawan. It was
precisely to implement Art. XII, 2 that the ordinances in question were enacted. For, without these marine
resources, it would be idle to talk of the rights of subsistence fishermen to be preferred in the use of these
resources.

It has been held that "as underlying questions of fact may condition the constitutionality of legislation of this
character, the presumption of constitutionality must prevail in the absence of some factual foundation of
record for overthrowing the statute." 11 No evidence has been presented by petitioners to overthrow the factual
basis of the ordinances that, as a result of the use of cyanide and other noxious substances for fishing, only 5%
of the coral reefs in Palawan was in excellent condition, that 75% had been heavily destroyed, and that because of
the thriving market for live fish and lobster here and abroad there was rampant illicit trade in live fish.
Nor has it been shown by petitioners that the local legislation here involved is arbitrary or unreasonable. It
has been held: "If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and
are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial
determination to that effect renders a court functus officio. . . . With the wisdom of the policy adopted, with
the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and
unauthorized to deal. . . ." 12
It is contended that neither Provincial Ordinance No. 2-93 nor City Ordinance No. 15-92 prohibits cyanide
fishing and therefore the prohibition against catching certain species of fish and their transportation is
"excessive and irrational." It is further argued that the ban is unreasonable because it is not limited to cyanide
fishing but includes even legitimate fishing.
The ban on the use of cyanide and other noxious substances is already provided for in other legislation. P.D.
No. 534, 2 punishes fishing by means of "explosives, obnoxious or poisonous substances or by the use of
electricity." Consequently, the ordinances in question can be seen as a necessary corollary of the prohibition
against illegal fishing contained in this Decree. By prohibiting the catching of certain fishes and lobsters,
Ordinance No. 2-93 in effect discourages cyanide fishing because, as already stated, cyanide is preferred in
catching fishes because it does not kill but only stuns them and thus preserves them for export to the world
market.
On the other hand, the claim that the ordinance sweeps overbroadly by "absolutely prohibit[ing] the catching,
gathering, buying and shipment of live fishes and marine coral resources by any and all means including
those lawfully executed or done in the pursuit of legitimate occupation" misconceives the principal purpose of
the ordinance, which is not so much to prohibit the use of cyanide for fishing as to rebuild corals because of
their destruction by cyanide fishing. This is clear from the "whereas" clauses of Resolution No. 33,
accompanying Ordinance No. 2-93:
WHEREAS, scientific and factual researches and studies disclose that only five (5) percent of the
corals of our province remain to be in excellent condition as habitat of marine coral dwelling aquatic
organisms;
WHEREAS, it cannot be gainsaid that the destruction and devastation of the corals of our province
were principally due to illegal fishing activities like dynamite fishing, sodium cyanide fishing, use of
other obnoxious substances and other related activities;
WHEREAS, there is an imperative and urgent need to protect and preserve the existence of the
remaining excellent corals and allow the devastated ones to reinvigorate and regenerate themselves
into vitality within the span of five (5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of R.A. 7160 otherwise known as the Local Government
Code of 1991 empowers the Sangguniang Panlalawigan to protect the environment and impose
appropriate penalties [for] acts which endanger the environment such as dynamite fishing and other
forms of destructive fishing, among others;
The principal aim of the ordinance is thus the preservation and rehabilitation of the corals. Only indirectly is
it also concerned with prohibiting the use of cyanide. That this is the aim of the ordinance can also be inferred
from the fact that the ban imposed by it on the catching and gathering of fishes is for a limited period (5
years) calculated to be the time needed for the growth and regeneration of the corals. Were the purpose of the
ordinance the prohibition of the use of cyanide for fishing, the ban would not be for a limited period only but
for all time.
I am not much moved by the plea that the ordinances deprive small fishermen of their means of livelihood
and occupation. The ban imposed by Ordinance No. 2-93, as amended, covers only three species, i.e.,
mameng (scaridae), panther or seorita (cromilepres altivelis) and ornamental aquarium fishes (balistiedae),

which are prized in the black market. With respect to other species, it is open season for legitimate fishermen.
On the other hand, the ban imposed by Ordinance No. 15-92 allows the transportation and shipment of sea
bass, catfish, mudfish and milkfish fries. The ban imposed by the two ordinances is limited to five years. It is
thus limited both as to scope and as to period of effectivity. There is, on the other hand, the imperative
necessity for measures to prevent the extinction of certain species of fish.
Indeed, the burden of showing that there is no reasonable relation between the end and the means adopted in
this case is not on the local governments but on petitioners because of the presumption that a regulatory
statute is valid in the absence of factual evidence to the contrary. As held in United States v.Salaveria. 13 "The
presumption is all in favor of validity. . . The councilors must, in the very nature of things, be familiar with the
necessities of their particular municipality and with all the facts and circumstances which surround the subject, and
necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the
regulations are essential to the well being of the people. . . . The Judiciary should not lightly set aside legislative
action when there is not a clear invasion of personal or property rights under the guise of police regulation."
Finally, petitioners question Office Order No. 23, s. of 1993, of the city mayor of Puerto Princesa, for being
allegedly vague. This order prohibits the transportation of fish outside the city without permit from the
mayor's office. Petitioners contend that the order does not state under what condition a permit may be granted
and, consequently, leaves it to the absolute discretion of the mayor when to grant and when to deny a permit.
The questioned paragraph of the order states:
The purpose of the inspection is to ascertain whether the shipper possessed the required Mayor's
Permit issued by this Office and the shipment is covered by invoice or clearance issued by the local
office of the Bureau of Fisheries and Aquatic Resources and as to compliance with all other existing
rules and regulations on the matter.
This contention is untenable. As the office order is intended to implement City Ordinance No. 15-92, resort
must be made to the ordinance in order to determine the scope of such office order. As already noted, the
ordinance prohibits the shipment out of Puerto Princesa of live fish and lobsters, with the exception of catfish,
mudfish and milkfish fries. Consequently, a permit may be denied if it is for the transportation of fishes which
are covered by the ban, but not for those not covered by it. This is the common sense meaning of the office
order in question. Criminal laws must be precisely drawn, but, as Justice Holmes once said, "We agree to all
the generalities about not supplying criminal laws with what they omit, but there is no canon against using
common sense in construing laws as saying what they obviously mean." 14
One final point. This case was brought to this Court on the bare bones of the ordinances, on the mere claim of
petitioner Alfredo Tano and his 83 copetitioners that they are subsistence fishermen. The constitutional
protection refers to small fishermen who depend on the sea for their existence. Ten of the petitioners, led by
Alfredo Tano, are accused in the Municipal Circuit Trial Court of possession of the species covered by
Provincial Ordinance No. 2-93, while two, Roberto Lim and Virginia Lim, are charged with violation of the
two ordinances in the City Prosecutor's Office. There is no telling from the records of this case whether
petitioners are subsistence fishermen or simply impecunious individuals selling their catch to the big
businessmen. The other petitioners are admittedly fish traders, members of an association of airline shippers,
to whom the constitutional provisions obviously do not apply.
The judicial invalidation of the ordinances in this case could undermine the on-going trial of some of
petitioners. Instead of leaving the determination of the validity of the ordinances to the trial court, where
some of petitioners are facing charges, this Court will be shortcircuiting the criminal process by prematurely
passing upon the constitutional questions and indirectly on the criminal liability of some of the petitioners.
This is a task which should await the development of evidence of record.
Indeed because of the unsatisfactory abstractness of the record, this case should not have been brought here.
The mere fact that some of petitioners are facing prosecution for violation of the ordinances is no reason for
entertaining their suit. Our jurisdiction is limited to cases and controversies. Who are petitioners? What is the
impact of the ordinance on their economic situation? Are the factual bases of the two ordinances supported by
evidence? These questions must be raised in the criminal trial or in a suit brought in the trial court so that
facts necessary to adjudicate the constitutional questions can be presented. Nothing can take the place of the
flesh and blood of litigation to assess the actual operation of a statute and thus ground the judicial power more
firmly.

Petitioners justify the filing of the present action in this Court on the ground that constitutional questions must
be raised at the earliest time. That is true, but it does not mean that the questions should be presented to the
Supreme Court first hand. Moreover, the rule is not absolute. Constitutional questions like those invoked by
petitioners can be raised anytime, even in a motion for reconsideration, if their resolution is necessary to the
decision of an actual case or controversy, as our recent resolution 15 of the constitutionality of R.A. No. 7659,
reimposing the death penalty, amply demonstrates.
Romero, Melo, Puno and Francisco, JJ., concur.

BELLOSILLO, J., dissenting:

It is settled rule that where the provisions of the law are clear and unambiguous there is no room for
interpretation. The duty of the court is only to apply the law. The exception to such rule cannot be justified on
the sole basis of good motives or noble objectives. For it is also basic that the end does not justify the means.
The petition raises significant constitutional questions. While petitioners apparently instituted the action to
enjoin their criminal prosecution, the issue boils down to whether the subject ordinances of Palawan and
Puerto Princesa are valid and enforceable as to authorize the criminal prosecution of those charged with
violation thereof.
Notwithstanding the procedural limitations strictly applied in the majority opinion to render the petition
dismissible on grounds of prematurity and lack of real interest in the controversy, the case clearly falls under
the exceptions allowed by law. The petition, I submit, can be properly treated as a special civil action
for certiorari and prohibition under Rule 65 of the Rules of Court to correct errors of jurisdiction committed
by the lower court arising from the implementation of a void ordinance. Even if the purpose of the petition is
for declaratory relief, if the petition has far-reaching implications and raises questions that should be resolved
as they involve national interest, it may be treated as a special civil action under Rule 65. 1 The mere absence of a prior
motion to quash the Information in the trial court should not prevent the accused, petitioners herein, from seeking to render null and void the criminal proceedings
below.

In criminal cases, when the constitutionality or validity of a law or ordinance is essentially involved, the same
may be raised at any stage of the proceedings. It can also be considered by the appellate court at any time if it
involves the jurisdiction of the lower Court. 2 Further, under Sec. 8, Rule 117, of the Rules on Criminal Procedure, the failure of the accused
to assert any ground of a motion to quash before he pleads to the Complaint or Information either because he did not file a motion to quash or failed to allege the
same in the motion shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense
charged, extinction of the offense or penalty, and jeopardy.

Petitioners are proper parties to set aside the proceedings in the trial court. A proper party is one who has
sustained or is in immediate danger of sustaining an injury as a result of the act complained of. Petitioners
have been criminally charged and arrested for alleged violation of the ordinances in question. Consequently,
unless the trial court is enjoined from continuing with the proceedings, petitioners are in danger of being
convicted and punished under ordinances which they allege to be invalid and ineffective. In fact this Court
initially recognized the real interest of petitioners in instituting the action when it issued a restraining order
directing Judge Angel R. Miclat to cease and desist until further orders from proceeding with the arraignment
and pre-trial of People v. Alfredo Tano, et al., Crim. Case No. 11223, for violation of Resolution No. 2-93 of
the Sangguniang Panlalawigan of Palawan, and Ordinance No. 15-92 of the Sangguniang Panlungsod of
Puerto Princesa City.
The question to be resolved is whether Resolution No. 2-93, Office Order No. 23 and Ordinance No. 15-92
are constitutional, valid and enforceable. By considering the purpose and objective of the ordinances as
laudable, the majority adopts the affirmative view in consonance with the general welfare clause and principle
of devolution well-rooted in the Local Government Code of 1991.
While I agree with the majority that the local leaders of Palawan and Puerto Princesa City be commended for
their efforts to uplift and protect the environment and natural resources within their areas, the general welfare
clause is not the sole criterion to determine the validity or constitutionality of the ordinances. In Magtajas
v. Pryce Properties Corporation, 3 we reiterated that the well-established tests of a valid ordinance are: (a) It must not contravene the Constitution
or any statute; (b) It must not be unfair or oppressive; (c) It must not be partial or discriminatory; (d) It must not prohibit but may regulate trade; (e) It must be
general and consistent with public policy; and, (f) It must not be unreasonable.

As admitted by the majority, among our existing statutes on fishing and fishery or aquatic resources are P.D.

Nos. 704, 1015 and 1219. P.D. No. 704 is titled "Revising and Consolidating All Laws and Decrees Affecting
Fishing and Fisheries." With the enactment of the Local Government Code of 1991, only Secs. 16 and 29 of
P.D. No. 704 were expressly repealed. All the rest of the provisions of P.D. No. 704 remain valid and
effective, Sec. 4 of which is enlightening
Sec. 4. Jurisdiction of the Bureau (of Fisheries and Aquatic Resources). The Bureau shall have
jurisdiction and responsibility in the management, conservation, development, protection, utilization
and disposition of all fishery and aquatic resources of the country except municipal waters which
shall be under the municipal or city government concerned: Provided, That fishpens and seaweed
culture in municipal centers shall be under the jurisdiction of the Bureau: Provided, further, That all
municipal or city ordinances and resolutions affecting fishing and fisheries and any disposition
thereunder shall be submitted to the Secretary for appropriate action and shall have full force and
effect only upon his approval. The Bureau shall also have authority to regulate and supervise the
production, capture and gathering of fish and fishery/aquatic products.
There is no doubt that under P.D. No. 704 fishing, fishery and aquatic resources in municipal waters are under
the jurisdiction of the municipal or city government concerned. However, the same decree imposes a
mandatory requirement directing municipal or city governments to submit ordinances enacted pertinent to
fishing and fishery resources to the Secretary of Agriculture who now has control and supervision over the
Bureau of Fisheries and Aquatic Resources (BFAR). The ordinances will attain full force and effect only upon
the approval of the Secretary of Agriculture.
Ordinance 15-92 of Puerto Princesa City, admittedly, was not submitted to the Secretary of Agriculture
through the BFAR for approval. Such failure of compliance with the law prevented it from becoming valid
and effective. Consequently, Office Order No. 23 of the Mayor of Puerto Princesa City which seeks to
implement and enforce Ordinance No. 15-92 is also ineffective as there is nothing to implement.
To say that Sec. 4 of P.D. No. 704 was impliedly repealed by the Local Government Code is gratuitous. For, if
it was the intention of the legislature to dispense with the requirement of prior approval by the Secretary of
Agriculture of ordinances pertinent to fishery resources, it would. have expressly repealed Sec. 4 when, in
fact, it did so with Secs. 16 and 29 of P.D. No. 704. Cases abound holding that a repeal by implication is not
presumed or favored considering that the legislature is presumed to be aware of existing laws; ordinarily, if it
intends to revoke a statute it would manifest such intention in express terms. 4 Before such a repeal is deemed to exist it
should be shown that the statutes or statutory provisions deal with the same subject matter and that the latter be inconsistent with the former. There must be a
showing of repugnancy clear and convincing in character. The language used in the latter statute must be such as to render it irreconcilable with what has been
formerly enacted. An inconsistency that falls short of that standard does not suffice. In fact, there is no inconsistency between the Local Government Code and P.D.
No. 704 as amended. While the Local Government Code vests power upon the local government to enact ordinances for the general welfare of its inhabitants, such
power is subject to certain limitations imposed by the Code itself and by other statutes. When the legislature failed to repeal Sec. 4 of P.D. No. 704 it accepted and
recognized a limitation on the power of the local government to enact ordinances relative to matters affecting fishery and aquatic resources. A reading of particular
provisions of the Local Government Code itself will reveal that devolution on the powers of the local government pertaining to the protection of environment is
limited and not all-encompassing, as will be discussed in the succeeding paragraphs.

Further, while the Local Government Code is a general law on the powers, responsibilities and composition of
different local government units, P.D. No. 704 is a special law dealing with the protection and conservation of
fishing and aquatic resources including those in the municipal waters. Hence, the special law should prevail
over the general law.
There is also P.D. No. 1015 which vests upon the Secretary of Agriculture the authority to establish closed
seasons. Another existing law on fisheries which has not been repealed by the Local Government Code is P.D.
No. 1219, which provides for the exploration, exploitation, utilization and conservation of coral resources.
Section 4 thereof provides that the decree shall be implemented by the Secretary of Environment and Natural
Resources who shall have jurisdiction and responsibility in the exploration, exploitation, utilization and
conservation of coral resources. Section 6 authorizes the Secretary to issue special permit to any person or
institution to gather in limited quantities any coral for scientific or educational purposes. Section 10
empowers the Secretary to promulgate rules and regulations for the implementation of this law.
It is true that police power can be exercised through the general welfare clause. But, while police power is
inherent in a state, it is not so in municipal corporations or local governments. In order that a local
government may exercise police power, there must be a legislative grant which necessarily sets the limits for
the exercise of the power. 5 In this case, Congress has enacted the Local Government Code which provides the standards as well as the limitations in
the exercise of the police power by the local government unit.

Section 2 of the Local Government Code provides for a system of decentralization whereby local government

units are given more powers, authority, responsibilities and resources, and the process shall proceed from the
national government to the local government units. However, under Sec 3, par. (i), of the Local Government
Code, the operative principles of decentralization upon the environment and natural resources are not absolute
when it is provided therein that "local government units shall share with the national government the
responsibility in the management and maintenance of ecological balance within their territorial jurisdiction,
subject to the provisions of this Code and national policies." The national policies mentioned here refer to
existing policies which the DENR and other government agencies concerned with the environment may
implement at any given moment. The national policies are embodied in existing laws, rules and regulations
pertaining to environment and natural resources, such as P.D. Nos. 704 and 1219 relating to fishery resources.
The above provision was crafted to make sure that local government enactments do not supplant or negate
national government policies on environment. 6 This is precisely the reason why the Local Government Code did not repeal Sec. 4 of P.D.
NO. 704 requiring prior submission to and approval by the Secretary of Agriculture of ordinances relative to fishery and aquatic resources. Needless to stress, the
approval of the Secretary is necessary in order to ensure that these ordinances are in accordance with the laws on fisheries and national policies. Likewise, the
jurisdiction of the Secretary of Environment and Natural Resources over coral resources under P.D. No. 1219 remains.

The core of the devolution adopted by the Local Government Code is found in Sec. 17 thereof which
reiterates the basic services and facilities to be rendered by the local governments. With respect to the
protection and conservation of fisheries, Sec. 17, par. 2 (i), specifically provides that the municipality shall
conduct "extension and on-site research services and facilities related to agriculture and fishery activities
which include dispersal of livestock and poultry, fingerlings and other seeding materials for aquaculture
. . . . and enforcement of fishery laws in municipal waters including the conservation of mangroves . . . ." The
power devolved upon the municipality under the Local Government Code is the enforcement of existing
fishery laws of the State and not the enactment thereof. While a local government unit may adopt ordinances
upon subjects covered by law or statute, such ordinances should be in accordance with and not repugnant to
the law. 7 In view thereof, ordinances which may be enacted by the municipality or city should be pursuant to the provisions of P.D. Nos. 704, 1015 and 1219.
Thus, under the provisions of Secs. 447, par. 1 (vi), 458, par. 1 (vi) and 468, par. 1 (vi), the municipality, city and province respectively may approve ordinances
protecting the environment by specifically penalizing only those acts which endanger the environment such as dynamite fishing and other forms of destructive
fishing which are already prohibited under P.D. Nos. 704 and 1219, and other laws on illegal fishing. 8

The questioned ordinances may also be struck down for being not only a prohibitory legislation but also an
unauthorized exercise of delegation of powers. An objective, however worthy or desirable it may be, such as
the protection and conservation of our fisheries in this case, can be attained by a measure that does not
encompass too wide a field. The purpose can be achieved by reasonable restrictions rather than by absolute
prohibition. Local governments are not possessed with prohibitory powers but only regulatory powers under
the general welfare clause. 9 They cannot therefore exceed the powers granted to them by the Code by altogether prohibiting fishing and selling for
five (5) years all live fishes through Ordinance No. 15-92 and coral organisms through Ordinance No. 2-93 involving even lawful methods of fishing.

These prohibitions are tantamount to the establishment of a closed season for fish and aquatic resources
which authority is not among those powers vested by the Local Government Code to the local government
units. For the authority to establish a closed season for fisheries is vested upon the Secretary of Agriculture by
virtue of P.D. Nos. 704 and 1015 and in the Secretary of Environment and Natural resources pursuant to P.D.
No. 1219 in relation to coral resources. The power of the local governments is confined and limited to
ensuring that these national fishery laws are implemented and enforced within their territorial jurisdictions.
Hence, any memorandum of agreement which might have been executed by the Department of Agriculture or
Department of Environment and Natural Resources granting additional powers and functions to the local
governments which are not vested upon the latter by the Local Government Code because such powers are
covered by existing statutes, is an undue delegation of power and, consequently, null and void.
The majority also cites R.A. No. 7611, otherwise known as the Strategic Environmental Plan (SEP) for
Palawan Act, as proof of the power of the local governments of Palawan and Puerto Princesa City to issue the
assailed ordinances. Although the objectives of R.A. No. 7611 and of the ordinances are one and the
same, i.e., the protection, conservation and development of natural resources, the former does not grant
additional powers to the local governments pertaining to the environment. In fact, the law adopts a
comprehensive framework which shall serve to direct and guide local governments and national government
agencies in the implementation of programs and projects affecting Palawan. With the enactment of this Act,
the local governments are mandated to coordinate and align their developmental plans, projects and budgets
in accord with the framework of the SEP. It can be said that this is another limitation on the exercise of police
power by the local governments of Palawan and Puerto Princesa City because the governance,
implementation and policy direction of the SEP shall be exercised by the Palawan Council for Sustainable
Development (PCSD) which is under the Office of the President.

Finally, I find unreasonable Resolution No. 2-93 of Palawan and Ordinance No. 15-92 of Puerto Princesa
City. The prohibitions set forth are not germane to the accomplishment of their goals. Ordinance No. 15-92 is
aimed to free effectively the marine resources of Puerto Princesa from cyanide and other obnoxious
substances. But the means to achieve this objective borders on the excessive and irrational, for the edict
would absolutely ban the shipment of live fishes and lobsters out of the city for a period of five (5) years
without prohibiting cyanide fishing itself which is the professed goal of the ordinance. The purpose of
Resolution No. 2-93, on the other hand, is to protect and preserve all marine coral-dwelling organisms from
devastation and destruction by illegal fishing activities, e.g., dynamite fishing, sodium cyanide fishing, and
the use of other obnoxious substances. But in absolutely prohibiting the catching, gathering, buying and
shipment of live fishes and marine coral resources by any means including those lawfully executed or done in
the pursuit of legitimate occupation, the ordinance overstepped the reasonable limits and boundaries of
its raison d'etre. This I cannot help viewing as plain arbitrariness masquerading as police power. For the
consequent deprivation of the main source of livelihood of the people of Palawan can only be regarded as
utter depravation of this awesome power of the State.
For all the foregoing, I vote to grant the petition.
Kapunan and Hermosisima, Jr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 118127

April 12, 2005

CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON. JOSELITO L.
ATIENZA, in his capacity as Vice-Mayor of the City of Manila and Presiding Officer of the City Council of
Manila, HON. ERNESTO A. NIEVA, HON. GONZALO P. GONZALES, HON. AVELINO S. CAILIAN, HON.
ROBERTO C. OCAMPO, HON. ALBERTO DOMINGO, HON. HONORIO U. LOPEZ, HON. FRANCISCO
G. VARONA, JR., HON. ROMUALDO S. MARANAN, HON. NESTOR C. PONCE, JR., HON. HUMBERTO
B. BASCO, HON. FLAVIANO F. CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL M.
ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO C. ANG, HON. MANUEL L. QUIN, HON.
JHOSEP Y. LOPEZ, HON. CHIKA G. GO, HON. VICTORIANO A. MELENDEZ, HON. ERNESTO V.P.
MACEDA, JR., HON. ROLANDO P. NIETO, HON. DANILO V. ROLEDA, HON. GERINO A. TOLENTINO,
JR., HON. MA. PAZ E. HERRERA, HON. JOEY D. HIZON, HON. FELIXBERTO D. ESPIRITU, HON.
KARLO Q. BUTIONG, HON. ROGELIO P. DELA PAZ, HON. BERNARDO D. RAGAZA, HON. MA.
CORAZON R. CABALLES, HON. CASIMIRO C. SISON, HON. BIENVINIDO M. ABANTE, JR., HON. MA.
LOURDES M. ISIP, HON. ALEXANDER S. RICAFORT, HON. ERNESTO F. RIVERA, HON. LEONARDO
L. ANGAT, and HON. JOCELYN B. DAWIS, in their capacity as councilors of the City of Manila, Petitioner,
vs.
HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE TOURIST
DEVELOPMENT CORPORATION, Respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel good after and what is immoral is what you feel bad after.
Ernest
Death in the Afternoon, Ch. 1

Hermingway

It is a moral and political axiom that any dishonorable act, if performed by oneself, is less immoral than if
performed by someone else, who would be well-intentioned in his dishonesty.
J.
Bonaparte in Egypt, Ch. I

Christopher

Gerald

The Court's commitment to the protection of morals is secondary to its fealty to the fundamental law of the land. It is
foremost a guardian of the Constitution but not the conscience of individuals. And if it need be, the Court will not
hesitate to "make the hammer fall, and heavily" in the words of Justice Laurel, and uphold the constitutional
guarantees when faced with laws that, though not lacking in zeal to promote morality, nevertheless fail to pass the test
of constitutionality.
The pivotal issue in this Petition1 under Rule 45 (then Rule 42) of the Revised Rules on Civil Procedure seeking the
reversal of the Decision2 in Civil Case No. 93-66511 of the Regional Trial Court (RTC) of Manila, Branch 18 (lower
court),3 is the validity of Ordinance No. 7783 (the Ordinance) of the City of Manila.4
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged in the business of
operating hotels, motels, hostels and lodging houses. 5 It built and opened Victoria Court in Malate which was licensed
as a motel although duly accredited with the Department of Tourism as a hotel. 6 On 28 June 1993, MTDC filed
a Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining
Order7 (RTC Petition) with the lower court impleading as defendants, herein petitioners City of Manila, Hon. Alfredo
S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City Council of Manila (City Council). MTDC
prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared
invalid and unconstitutional.8
Enacted by the City Council9 on 9 March 1993 and approved by petitioner City Mayor on 30 March 1993, the
saidOrdinance is entitled
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES
PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES
IN THE ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND
FOR OTHER PURPOSES.10
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the contrary notwithstanding, no person,
partnership, corporation or entity shall, in the Ermita-Malate area bounded by Teodoro M. Kalaw Sr.
Street in the North, Taft Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in the West,
pursuant to P.D. 499 be allowed or authorized to contract and engage in, any business providing certain
forms of amusement, entertainment, services and facilities where women are used as tools in
entertainment and which tend to disturb the community, annoy the inhabitants, and adversely affect
the social and moral welfare of the community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said officials are
prohibited from issuing permits, temporary or otherwise, or from granting licenses and accepting
payments for the operation of business enumerated in the preceding section.

SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the businesses enumerated in
Section 1 hereof are hereby given three (3) months from the date of approval of this ordinance within
which to wind up business operations or to transfer to any place outside of the Ermita-Malate area or
convert said businesses to other kinds of business allowable within the area,such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined activities for wholesome family
entertainment that cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural shows, stage
and theatrical plays, art exhibitions, concerts and the like.
11. Businesses allowable within the law and medium intensity districts as provided for in the zoning
ordinances for Metropolitan Manila, except new warehouse or open-storage depot, dock or yard,
motor repair shop, gasoline service station, light industry with any machinery, or funeral
establishments.
SEC. 4. Any person violating any provisions of this ordinance, shall upon conviction, be punished by
imprisonment of one (1) year or fine of FIVE THOUSAND (P5,000.00) PESOS, or both, at the discretion
of the Court, PROVIDED, that in case of juridical person, the President, the General Manager, or person-incharge 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) TheOrdinance 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 nuisanceper se nor does it have the power to extrajudicially destroy it; and (6)
The Ordinance constitutes a denial of equal protection under the law as no reasonable basis exists for prohibiting the
operation of motels and inns, but not pension houses, hotels, lodging houses or other similar establishments, and for
prohibiting said business in the Ermita-Malate area but not outside of this area. 14

In their Answer15 dated 23 July 1993, petitioners City of Manila and Lim maintained that the City Council had the
power to "prohibit certain forms of entertainment in order to protect the social and moral welfare of the community"
as provided for in Section 458 (a) 4 (vii) of the Local Government Code,16 which reads, thus:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:
....
(4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote
the general welfare and for said purpose shall:
....
(vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement
facilities, including theatrical performances, circuses, billiard pools, public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for entertainment or amusement; regulate
such other events or activities for amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants, or require the suspension or suppression of the same;
or, prohibit certain forms of amusement or entertainment in order to protect the social and moral
welfare of the community.
Citing Kwong Sing v. City of Manila,17 petitioners insisted that the power of regulation spoken of in the above-quoted
provision included the power to control, to govern and to restrain places of exhibition and amusement. 18
Petitioners likewise asserted that the Ordinance was enacted by the City Council of Manila to protect the social and
moral welfare of the community in conjunction with its police power as found in Article III, Section 18(kk) of
Republic Act No. 409,19 otherwise known as the Revised Charter of the City of Manila (Revised Charter of
Manila)20 which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
. . .
Section 18. Legislative powers. The Municipal Board shall have the following legislative powers:
. . .
(kk) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of
the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general
welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge
the powers and duties conferred by this chapter; and to fix penalties for the violation of ordinances which
shall not exceed two hundred pesos fine or six months' imprisonment, or both such fine and imprisonment, for
a single offense.
Further, the petitioners noted, the Ordinance had the presumption of validity; hence, private respondent had the
burden to prove its illegality or unconstitutionality.21
Petitioners also maintained that there was no inconsistency between P.D. 499 and the Ordinance as the latter simply
disauthorized certain forms of businesses and allowed the Ermita-Malate area to remain a commercial
zone.22 The Ordinance, the petitioners likewise claimed, cannot be assailed as ex post facto as it was prospective in
operation.23 The Ordinance also did not infringe the equal protection clause and cannot be denounced as class
legislation as there existed substantial and real differences between the Ermita-Malate area and other places in the City
of Manila.24
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an ex-parte temporary restraining
order against the enforcement of the Ordinance.25 And on 16 July 1993, again in an intrepid gesture, he granted the
writ of preliminary injunction prayed for by MTDC.26
After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining the petitioners from

implementing the Ordinance. The dispositive portion of said Decision reads:27

WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series of 1993, of the City of
Manila null and void, and making permanent the writ of preliminary injunction that had been issued by this
Court against the defendant. No costs.
SO ORDERED.28
Petitioners filed with the lower court a Notice of Appeal29 on 12 December 1994, manifesting that they are elevating
the case to this Court under then Rule 42 on pure questions of law.30
On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were committed by the
lower court in its ruling: (1) It erred in concluding that the subject ordinance is ultra vires, or otherwise, unfair,
unreasonable and oppressive exercise of police power; (2) It erred in holding that the
questioned Ordinancecontravenes P.D. 49931 which allows operators of all kinds of commercial establishments,
except those specified therein; and (3) It erred in declaring the Ordinance void and unconstitutional.32
In the Petition and in its Memorandum,33 petitioners in essence repeat the assertions they made before the lower
court. They contend that the assailed Ordinance was enacted in the exercise of the inherent and plenary power of the
State and the general welfare clause exercised by local government units provided for in Art. 3, Sec. 18 (kk) of the
Revised Charter of Manila and conjunctively, Section 458 (a) 4 (vii) of the Code. 34 They allege that theOrdinance is a
valid exercise of police power; it does not contravene P.D. 499; and that it enjoys the presumption of validity.35
In its Memorandum36 dated 27 May 1996, private respondent maintains that the Ordinance is ultra vires and that it is
void for being repugnant to the general law. It reiterates that the questioned Ordinance is not a valid exercise of police
power; that it is violative of due process, confiscatory and amounts to an arbitrary interference with its lawful
business; that it is violative of the equal protection clause; and that it confers on petitioner City Mayor or any officer
unregulated discretion in the execution of the Ordinance absent rules to guide and control his actions.
This is an opportune time to express the Court's deep sentiment and tenderness for the Ermita-Malate area being its
home for several decades. A long-time resident, the Court witnessed the area's many turn of events. It relished its
glory days and endured its days of infamy. Much as the Court harks back to the resplendent era of the Old Manila and
yearns to restore its lost grandeur, it believes that the Ordinance is not the fitting means to that end. The Court is of
the opinion, and so holds, that the lower court did not err in declaring the Ordinance, as it did, ultra vires and
therefore null and void.
The Ordinance is so replete with constitutional infirmities that almost every sentence thereof violates a constitutional
provision. The prohibitions and sanctions therein transgress the cardinal rights of persons enshrined by the
Constitution. The Court is called upon to shelter these rights from attempts at rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions has held that for an ordinance to be valid,
it must not only be within the corporate powers of the local government unit to enact and must be passed according to
the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not
contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy;
and (6) must not be unreasonable.37
Anent the first criterion, ordinances shall only be valid when they are not contrary to the Constitution and to the
laws.38 The Ordinance must satisfy two requirements: it must pass muster under the test of constitutionality and the
test of consistency with the prevailing laws. That ordinances should be constitutional uphold the principle of the
supremacy of the Constitution. The requirement that the enactment must not violate existing law gives stress to the
precept that local government units are able to legislate only by virtue of their derivative legislative power, a
delegation of legislative power from the national legislature. The delegate cannot be superior to the principal or
exercise powers higher than those of the latter.39
This relationship between the national legislature and the local government units has not been enfeebled by the new
provisions in the Constitution strengthening the policy of local autonomy. The national legislature is still the principal
of the local government units, which cannot defy its will or modify or violate it.40
The Ordinance was passed by the City Council in the exercise of its police power, an enactment of the City Council
acting as agent of Congress. Local government units, as agencies of the State, are endowed with police power in order
to effectively accomplish and carry out the declared objects of their creation. 41 This delegated police power is found

in Section 16 of the Code, known as the general welfare clause, viz:

SECTION 16. General Welfare.Every local government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient
and effective governance, and those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic prosperity and social justice, promote
full employment among their residents, maintain peace and order, and preserve the comfort and convenience
of their inhabitants.
Local government units exercise police power through their respective legislative bodies; in this case, thesangguniang
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
the Constitution

Ordinance

contravenes

The police power of the City Council, however broad and far-reaching, is subordinate to the constitutional limitations
thereon; and is subject to the limitation that its exercise must be reasonable and for the public good. 43In 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 Due Process Clause

The Ordinance infringes

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
despotically57 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
of Police Power are not met

for

the

valid

exercise

To successfully invoke the exercise of police power as the rationale for the enactment of the Ordinance, and to free it
from the imputation of constitutional infirmity, not only must it appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with private rights, but the means adopted must
be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. 60 It must
be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. A
reasonable relation must exist between the purposes of the police measure and the means employed for its
accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to
private property will not be permitted to be arbitrarily invaded.61
Lacking a concurrence of these two requisites, the police measure shall be struck down as an arbitrary intrusion into
private rights62 a violation of the due process clause.
The Ordinance was enacted to address and arrest the social ills purportedly spawned by the establishments in the
Ermita-Malate area which are allegedly operated under the deceptive veneer of legitimate, licensed and tax-paying
nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels and motels. Petitioners insist that even the Court
in the case of Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila 63had already taken
judicial notice of the "alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in
great part to existence of motels, which provide a necessary atmosphere for clandestine entry, presence and exit and
thus become the ideal haven for prostitutes and thrill-seekers."64
The object of the Ordinance was, accordingly, the promotion and protection of the social and moral values of the
community. Granting for the sake of argument that the objectives of the Ordinance are within the scope of the City
Council's police powers, the means employed for the accomplishment thereof were unreasonable and unduly
oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable regulations looking to the
promotion of the moral and social values of the community. However, the worthy aim of fostering public morals and
the eradication of the community's social ills can be achieved through means less restrictive of private rights; it can be
attained by reasonable restrictions rather than by an absolute prohibition. The closing down and transfer of businesses
or their conversion into businesses "allowed" under the Ordinance have no reasonable relation to the accomplishment
of its purposes. Otherwise stated, the prohibition of the enumerated establishments will not per se protect and promote
the social and moral welfare of the community; it will not in itself eradicate the alluded social ills of prostitution,
adultery, fornication nor will it arrest the spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and establishments of the like
which the City Council may lawfully prohibit, 65 it is baseless and insupportable to bring within that classification
sauna parlors, massage parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls,
motels and inns. This is not warranted under the accepted definitions of these terms. The enumerated establishments

are lawful pursuits which are not per se offensive to the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs and as venues to further the illegal prostitution is of
no moment. We lay stress on the acrid truth that sexual immorality, being a human frailty, may take place in the most
innocent of places that it may even take place in the substitute establishments enumerated under Section 3 of
the Ordinance. If the flawed logic of the Ordinance were to be followed, in the remote instance that an immoral
sexual act transpires in a church cloister or a court chamber, we would behold the spectacle of the City of Manila
ordering the closure of the church or court concerned. Every house, building, park, curb, street or even vehicles for
that matter will not be exempt from the prohibition. Simply because there are no "pure" places where there are impure
men. Indeed, even the Scripture and the Tradition of Christians churches continually recall the presence
and universality of sin in man's history.66
The problem, it needs to be pointed out, is not the establishment, which by its nature cannot be said to be injurious to
the health or comfort of the community and which in itself is amoral, but the deplorable human activity that may
occur within its premises. While a motel may be used as a venue for immoral sexual activity, it cannot for that reason
alone be punished. It cannot be classified as a house of ill-repute or as a nuisance per se on a mere likelihood or a
naked assumption. If that were so and if that were allowed, then the Ermita-Malate area would not only be purged of
its supposed social ills, it would be extinguished of its soul as well as every human activity, reprehensible or not, in its
every nook and cranny would be laid bare to the estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try as the Ordinancemay to
shape morality, it should not foster the illusion that it can make a moral man out of it because immorality is not a
thing, a building or establishment; it is in the hearts of men. The City Council instead should regulate human conduct
that occurs inside the establishments, but not to the detriment of liberty and privacy which are covenants, premiums
and blessings of democracy.
While petitioners' earnestness at curbing clearly objectionable social ills is commendable, they unwittingly punish
even the proprietors and operators of "wholesome," "innocent" establishments. In the instant case, there is a clear
invasion of personal or property rights, personal in the case of those individuals desirous of owning, operating and
patronizing those motels and property in terms of the investments made and the salaries to be paid to those therein
employed. If the City of Manila so desires to put an end to prostitution, fornication and other social ills, it can instead
impose reasonable regulations such as daily inspections of the establishments for any violation of the conditions of
their licenses or permits; it may exercise its authority to suspend or revoke their licenses for these violations; 67 and it
may even impose increased license fees. In other words, there are other means to reasonably accomplish the desired
end.
Means
constitutionally infirm

employed

are

The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars, beerhouses, night clubs, day
clubs, super clubs, discotheques, cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3 thereof,
owners and/or operators of the enumerated establishments are given three (3) months from the date of approval of
the Ordinance within which "to wind up business operations or to transfer to any place outside the Ermita-Malate area
or convert said businesses to other kinds of business allowable within the area." Further, it states in Section 4 that in
cases of subsequent violations of the provisions of the Ordinance, the "premises of the erring establishment shall be
closed and padlocked permanently."
It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the governmental
interference itself, infringes on the constitutional guarantees of a person's fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right to
be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of
the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been
endowed by his Creator, subject only to such restraint as are necessary for the common welfare." 68In accordance with
this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to
earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the concept of
liberty.69
The U.S. Supreme Court in the case of Roth v. Board of Regents,70 sought to clarify the meaning of "liberty." It said:
While the Court has not attempted to define with exactness the liberty. . . guaranteed [by the Fifth and

Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognizedas essential to the orderly pursuit of
happiness by free men. In a Constitution for a free people, there can be no doubt that the meaning of "liberty"
must be broad indeed.
In another case, it also confirmed that liberty protected by the due process clause includes personal decisions relating
to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect
the Constitution demands for the autonomy of the person in making these choices, the U.S. Supreme Court explained:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.
At the heart of liberty is the right to define one's own concept of existence, of meaning, of universe, and of the
mystery of human life. Beliefs about these matters could not define the attributes of personhood where they
formed under compulsion of the State.71
Persons desirous to own, operate and patronize the enumerated establishments under Section 1 of theOrdinance 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 premisesbe it stressed that their consensual sexual behavior does not contravene
any fundamental state policy as contained in the Constitution. 72 Adults have a right to choose to forge such
relationships with others in the confines of their own private lives and still retain their dignity as free persons. The
liberty protected by the Constitution allows persons the right to make this choice. 73 Their right to liberty under the
due process clause gives them the full right to engage in their conduct without intervention of the government, as long
as they do not run afoul of the law. Liberty should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful government restraint; it must include
privacy as well, if it is to be a repository of freedom. The right to be let alone is the beginning of all freedom it is the
most comprehensive of rights and the right most valued by civilized men. 74
The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect. As
the case of Morfe v. Mutuc,75 borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are
indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are built.
He cannot abandon the consequences of his isolation, which are, broadly speaking, that his experience is
private, and the will built out of that experience personal to himself. If he surrenders his will to others, he
surrenders himself. If his will is set by the will of others, he ceases to be a master of himself. I cannot believe
that a man no longer a master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should be justified
by a compelling state interest. Morfe accorded recognition to the right to privacy independently of its identification
with liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop short of
certain intrusions into the personal life of the citizen.76
There is a great temptation to have an extended discussion on these civil liberties but the Court chooses to exercise
restraint and restrict itself to the issues presented when it should. The previous pronouncements of the Court are not to
be interpreted as a license for adults to engage in criminal conduct. The reprehensibility of such conduct is not
diminished. The Court only reaffirms and guarantees their right to make this choice. Should they be prosecuted for
their illegal conduct, they should suffer the consequences of the choice they have made. That, ultimately, is their
choice.
Modality
unlawful taking

employed

is

In addition, the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the beneficial
use of its property.77 The Ordinance in Section 1 thereof forbids the running of the enumerated businesses in the
Ermita-Malate area and in Section 3 instructs its owners/operators to wind up business operations or to transfer
outside the area or convert said businesses into allowed businesses. An ordinance which permanently restricts the use

of property that it can not be used for any reasonable purpose goes beyond regulation and must be recognized as a
taking of the property without just compensation. 78 It is intrusive and violative of the private property rights of
individuals.
The Constitution expressly provides in Article III, Section 9, that "private property shall not be taken for public use
without just compensation." The provision is the most important protection of property rights in the Constitution. This
is a restriction on the general power of the government to take property. The constitutional provision is about ensuring
that the government does not confiscate the property of some to give it to others. In part too, it is about loss spreading.
If the government takes away a person's property to benefit society, then society should pay. The principal purpose of
the guarantee is "to bar the Government from forcing some people alone to bear public burdens which, in all fairness
and justice, should be borne by the public as a whole.79
There are two different types of taking that can be identified. A "possessory" taking occurs when the government
confiscates or physically occupies property. A "regulatory" taking occurs when the government's regulation leaves no
reasonable economically viable use of the property.80
In the landmark case of Pennsylvania Coal v. Mahon,81 it was held that a taking also could be found if government
regulation of the use of property went "too far." When regulation reaches a certain magnitude, in most if not in all
cases there must be an exercise of eminent domain and compensation to support the act. While property may be
regulated to a certain extent, if regulation goes too far it will be recognized as a taking.82
No formula or rule can be devised to answer the questions of what is too far and when regulation becomes a taking.
In Mahon, Justice Holmes recognized that it was "a question of degree and therefore cannot be disposed of by general
propositions." On many other occasions as well, the U.S. Supreme Court has said that the issue of when regulation
constitutes a taking is a matter of considering the facts in each case. The Court asks whether justice and fairness
require that the economic loss caused by public action must be compensated by the government and thus borne by the
public as a whole, or whether the loss should remain concentrated on those few persons subject to the public action. 83
What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no
reasonable economically viable use of property in a manner that interferes with reasonable expectations for use. 84 A
regulation that permanently denies all economically beneficial or productive use of land is, from the owner's point of
view, equivalent to a "taking" unless principles of nuisance or property law that existed when the owner acquired the
land make the use prohibitable.85 When the owner of real property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a
taking.86
A regulation which denies all economically beneficial or productive use of land will require compensation under the
takings clause. Where a regulation places limitations on land that fall short of eliminating all economically beneficial
use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation's economic
effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations
and the character of government action. These inquiries are informed by the purpose of the takings clause which is to
prevent the government from forcing some people alone to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.87
A restriction on use of property may also constitute a "taking" if not reasonably necessary to the effectuation of a
substantial public purpose or if it has an unduly harsh impact on the distinct investment-backed expectations of the
owner.88
The Ordinance gives the owners and operators of the "prohibited" establishments three (3) months from its approval
within which to "wind up business operations or to transfer to any place outside of the Ermita-Malate area or convert
said businesses to other kinds of business allowable within the area." The directive to "wind up business operations"
amounts to a closure of the establishment, a permanent deprivation of property, and is practically confiscatory. Unless
the owner converts his establishment to accommodate an "allowed" business, the structure which housed the previous
business will be left empty and gathering dust. Suppose he transfers it to another area, he will likewise leave the entire
establishment idle. Consideration must be given to the substantial amount of money invested to build the edifices
which the owner reasonably expects to be returned within a period of time. It is apparent that the Ordinance leaves no
reasonable economically viable use of property in a manner that interferes with reasonable expectations for use.
The second and third options to transfer to any place outside of the Ermita-Malate area or to convert into allowed
businessesare confiscatory as well. The penalty of permanent closure in cases of subsequent violations found in

Section 4 of the Ordinance is also equivalent to a "taking" of private property.

The second option instructs the owners to abandon their property and build another one outside the Ermita-Malate
area. In every sense, it qualifies as a taking without just compensation with an additional burden imposed on the
owner to build another establishment solely from his coffers. The proffered solution does not put an end to the
"problem," it merely relocates it. Not only is this impractical, it is unreasonable, onerous and oppressive. The
conversion into allowed enterprises is just as ridiculous. How may the respondent convert a motel into a restaurant or
a coffee shop, art gallery or music lounge without essentially destroying its property? This is a taking of private
property without due process of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be compensated by the government. The
burden on the owner to convert or transfer his business, otherwise it will be closed permanently after a subsequent
violation should be borne by the public as this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance, although a valid
exercise of police power, which limits a "wholesome" property to a use which can not reasonably be made of it
constitutes the taking of such property without just compensation. Private property which is not noxious nor intended
for noxious purposes may not, by zoning, be destroyed without compensation. Such principle finds no support in the
principles of justice as we know them. The police powers of local government units which have always received
broad and liberal interpretation cannot be stretched to cover this particular taking.
Distinction should be made between destruction from necessity and eminent domain. It needs restating that the
property taken in the exercise of police power is destroyed because it is noxious or intended for a noxious purpose
while the property taken under the power of eminent domain is intended for a public use or purpose and is therefore
"wholesome."89 If it be of public benefit that a "wholesome" property remain unused or relegated to a particular
purpose, then certainly the public should bear the cost of reasonable compensation for the condemnation of private
property for public use.90
Further, the Ordinance fails to set up any standard to guide or limit the petitioners' actions. It in no way controls or
guides the discretion vested in them. It provides no definition of the establishments covered by it and it fails to set
forth the conditions when the establishments come within its ambit of prohibition. The Ordinance confers upon the
mayor arbitrary and unrestricted power to close down establishments. Ordinances such as this, which make possible
abuses in its execution, depending upon no conditions or qualifications whatsoever other than the unregulated
arbitrary will of the city authorities as the touchstone by which its validity is to be tested, are unreasonable and
invalid. The Ordinance should have established a rule by which its impartial enforcement could be secured. 91
Ordinances placing restrictions upon the lawful use of property must, in order to be valid and constitutional, specify
the rules and conditions to be observed and conduct to avoid; and must not admit of the exercise, or of an opportunity
for the exercise, of unbridled discretion by the law enforcers in carrying out its provisions. 92
Thus, in Coates v. City of Cincinnati,93 as cited in People v. Nazario,94 the U.S. Supreme Court struck down an
ordinance that had made it illegal for "three or more persons to assemble on any sidewalk and there conduct
themselves in a manner annoying to persons passing by." The ordinance was nullified as it imposed no standard at all
"because one may never know in advance what 'annoys some people but does not annoy others.' "
Similarly, the Ordinance does not specify the standards to ascertain which establishments "tend to disturb the
community," "annoy the inhabitants," and "adversely affect the social and moral welfare of the community." The cited
case supports the nullification of the Ordinance for lack of comprehensible standards to guide the law enforcers in
carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated establishments without infringing the due process
clause. These lawful establishments may be regulated, but not prevented from carrying on their business. This is a
sweeping exercise of police power that is a result of a lack of imagination on the part of the City Council and which
amounts to an interference into personal and private rights which the Court will not countenance. In this regard, we
take a resolute stand to uphold the constitutional guarantee of the right to liberty and property.
Worthy of note is an example derived from the U.S. of a reasonable regulation which is a far cry from the illconsidered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a comprehensive ordinance regulating "sexually oriented
businesses," which are defined to include adult arcades, bookstores, video stores, cabarets, motels, and theaters as well

as escort agencies, nude model studio and sexual encounter centers. Among other things, the ordinance required that
such businesses be licensed. A group of motel owners were among the three groups of businesses that filed separate
suits challenging the ordinance. The motel owners asserted that the city violated the due process clause by failing to
produce adequate support for its supposition that renting room for fewer than ten (10) hours resulted in increased
crime and other secondary effects. They likewise argued than the ten (10)-hour limitation on the rental of motel rooms
placed an unconstitutional burden on the right to freedom of association. Anent the first contention, the U.S. Supreme
Court held that the reasonableness of the legislative judgment combined with a study which the city considered, was
adequate to support the city's determination that motels permitting room rentals for fewer than ten (10 ) hours should
be included within the licensing scheme. As regards the second point, the Court held that limiting motel room rentals
to ten (10) hours will have no discernible effect on personal bonds as those bonds that are formed from the use of a
motel room for fewer than ten (10) hours are not those that have played a critical role in the culture and traditions of
the nation by cultivating and transmitting shared ideals and beliefs.
The ordinance challenged in the above-cited case merely regulated the targeted businesses. It imposed reasonable
restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila,96 it needs pointing
out, is also different from this case in that what was involved therein was a measure which regulated the mode in
which motels may conduct business in order to put an end to practices which could encourage vice and immorality.
Necessarily, there was no valid objection on due process or equal protection grounds as the ordinance did not prohibit
motels. The Ordinance in this case however is not a regulatory measure but is an exercise of an assumed power to
prohibit.97
The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment of property and personal
rights of citizens. For being unreasonable and an undue restraint of trade, it cannot, even under the guise of exercising
police power, be upheld as valid.
B.
Protection Clause

The

Ordinance

violates

Equal

Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give
undue favor to some and unjustly discriminate against others. 98 The guarantee means that no person or class of
persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like
circumstances.99 The "equal protection of the laws is a pledge of the protection of equal laws." 100 It limits
governmental discrimination. The equal protection clause extends to artificial persons but only insofar as their
property is concerned.101
The Court has explained the scope of the equal protection clause in this wise:

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

Legislative bodies are allowed to classify the subjects of legislation. If the classification is reasonable, the law may
operate only on some and not all of the people without violating the equal protection clause. 103 The classification
must, as an indispensable requisite, not be arbitrary. To be valid, it must conform to the following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.104
In the Court's view, there are no substantial distinctions between motels, inns, pension houses, hotels, lodging houses
or other similar establishments. By definition, all are commercial establishments providing lodging and usually meals
and other services for the public. No reason exists for prohibiting motels and inns but not pension houses, hotels,
lodging houses or other similar establishments. The classification in the instant case is invalid as similar subjects are
not similarly treated, both as to rights conferred and obligations imposed. It is arbitrary as it does not rest on
substantial distinctions bearing a just and fair relation to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area
but not outside of this area. A noxious establishment does not become any less noxious if located outside the area.
The standard "where women are used as tools for entertainment" is also discriminatory as prostitution one of the
hinted ills the Ordinance aims to banishis not a profession exclusive to women. Both men and women have an
equal propensity to engage in prostitution. It is not any less grave a sin when men engage in it. And why would the
assumption that there is an ongoing immoral activity apply only when women are employed and be inapposite when
men are in harness? This discrimination based on gender violates equal protection as it is not substantially related to
important government objectives.105 Thus, the discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass the test of consistency with prevailing laws.
C. The
to general laws; it is ultra vires

Ordinance

is

repugnant

The Ordinance is in contravention of the Code as the latter merely empowers local government units to regulate, and
not prohibit, the establishments enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment, operation, and maintenance of motels,
hotels and other similar establishments is found in Section 458 (a) 4 (iv), which provides that:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote
the general welfare and for said purpose shall:
. . .
(iv) Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels,
inns, pension houses, lodging houses, and other similar establishments, including tourist guides and transports
. . . .
While its power to regulate the establishment, operation and maintenance of any entertainment or amusement
facilities, and to prohibit certain forms of amusement or entertainment is provided under Section 458 (a) 4 (vii) of the
Code, which reads as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:

. . .
(4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote
the general welfare and for said purpose shall:
. . .
(vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement
facilities, including theatrical performances, circuses, billiard pools, public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for entertainment or amusement; regulate
such other events or activities for amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants, or require the suspension or suppression of the same;
or, prohibit certain forms of amusement or entertainment in order to protect the social and moral
welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and other
similar establishments, the only power of the City Council to legislate relative thereto is to regulate them to promote
the general welfare. The Code still withholds from cities the power to suppress and prohibit altogether the
establishment, operation and maintenance of such establishments. It is well to recall the rulings of the Court in Kwong
Sing v. City of Manila106 that:
The word "regulate," as used in subsection (l), section 2444 of the Administrative Code, means and includes
the power to control, to govern, and to restrain; but "regulate" should not be construed as synonymous with
"suppress" or "prohibit." Consequently, under the power to regulate laundries, the municipal authorities could
make proper police regulations as to the mode in which the employment or business shall be exercised. 107
And in People v. Esguerra,108 wherein the Court nullified an ordinance of the Municipality of Tacloban which
prohibited the selling, giving and dispensing of liquor ratiocinating that the municipality is empowered only to
regulate the same and not prohibit. The Court therein declared that:
(A)s a general rule when a municipal corporation is specifically given authority or power to regulate or to
license and regulate the liquor traffic, power to prohibit is impliedly withheld.109
These doctrines still hold contrary to petitioners' assertion 110 that they were modified by the Code vesting upon City
Councils prohibitory powers.
Similarly, the City Council exercises regulatory powers over public dancing schools, public dance halls, sauna baths,
massage parlors, and other places for entertainment or amusement as found in the first clause of Section 458 (a) 4
(vii). Its powers to regulate, suppress and suspend "such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the inhabitants" and to "prohibit certain forms of
amusement or entertainment in order to protect the social and moral welfare of the community" are stated in the
second and third clauses, respectively of the same Section. The several powers of the City Council as provided in
Section 458 (a) 4 (vii) of the Code, it is pertinent to emphasize, are separated by semi-colons (;), the use of which
indicates that the clauses in which these powers are set forth are independent of each other albeit closely related to
justify being put together in a single enumeration or paragraph. 111 These powers, therefore, should not be confused,
commingled or consolidated as to create a conglomerated and unified power of regulation, suppression and
prohibition.112
The Congress unequivocably specified the establishments and forms of amusement or entertainment subject to
regulation among which are beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar
establishments (Section 458 (a) 4 (iv)), public dancing schools, public dance halls, sauna baths, massage parlors, and
other places for entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot be included
as among "other events or activities for amusement or entertainment, particularly those which tend to disturb the
community or annoy the inhabitants" or "certain forms of amusement or entertainment" which the City Council may
suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily
implied or incidental to the exercise thereof. By reason of its limited powers and the nature thereof, said powers are to
be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers must
be construed against the City Council. 113 Moreover, it is a general rule in statutory construction that the express
mention of one person, thing, or consequence is tantamount to an express exclusion of all others. Expressio unius est

exclusio alterium. This maxim is based upon the rules of logic and the natural workings of human mind. It is
particularly applicable in the construction of such statutes as create new rights or remedies, impose penalties or
punishments, or otherwise come under the rule of strict construction. 114
The argument that the City Council is empowered to enact the Ordinance by virtue of the general welfare clause of the
Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is likewise without merit. On the first point, the
ruling of the Court in People v. Esguerra,115 is instructive. It held that:
The powers conferred upon a municipal council in the general welfare clause, or section 2238 of the Revised
Administrative Code, refers to matters not covered by the other provisions of the same Code, and therefore it
can not be applied to intoxicating liquors, for the power to regulate the selling, giving away and dispensing
thereof is granted specifically by section 2242 (g) to municipal councils. To hold that, under the general
power granted by section 2238, a municipal council may enact the ordinance in question, notwithstanding the
provision of section 2242 (g), would be to make the latter superfluous and nugatory, because the power to
prohibit, includes the power to regulate, the selling, giving away and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later expression of the legislative will must necessarily
prevail and override the earlier law, the Revised Charter of Manila. Legis posteriores priores contrarias abrogant, or
later statute repeals prior ones which are repugnant thereto. As between two laws on the same subject matter, which
are irreconcilably inconsistent, that which is passed later prevails, since it is the latest expression of legislative
will.116 If there is an inconsistency or repugnance between two statutes, both relating to the same subject matter,
which cannot be removed by any fair and reasonable method of interpretation, it is the latest expression of the
legislative will which must prevail and override the earlier.117
Implied repeals are those which take place when a subsequently enacted law contains provisions contrary to those of
an existing law but no provisions expressly repealing them. Such repeals have been divided into two general classes:
those which occur where an act is so inconsistent or irreconcilable with an existing prior act that only one of the two
can remain in force and those which occur when an act covers the whole subject of an earlier act and is intended to be
a substitute therefor. The validity of such a repeal is sustained on the ground that the latest expression of the
legislative will should prevail.118
In addition, Section 534(f) of the Code states that "All general and special laws, acts, city charters, decrees, executive
orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the
provisions of this Code are hereby repealed or modified accordingly." Thus, submitting to petitioners' interpretation
that the Revised Charter of Manila empowers the City Council to prohibit motels, that portion of the Charter stating
such must be considered repealed by the Code as it is at variance with the latter's provisions granting the City Council
mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under the general welfare clause authorizing the
abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the
immediate safety of persons and property and may be summarily abated under the undefined law of necessity. It can
not be said that motels are injurious to the rights of property, health or comfort of the community. It is a legitimate
business. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. A motel is
not per se a nuisance warranting its summary abatement without judicial intervention.119
Notably, the City Council was conferred powers to prevent and prohibit certain activities and establishments in
another section of the Code which is reproduced as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in
this connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual drunkenness
in public places, vagrancy, mendicancy, prostitution, establishment and maintenance of
houses of ill
repute, gambling and other prohibited games of chance, fraudulent devices and ways to obtain money or

property, drug addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the printing,
distribution or exhibition of obscene or pornographic materials or publications, and such other activities
inimical to the welfare and morals of the inhabitants of the city;
. . .
If it were the intention of Congress to confer upon the City Council the power to prohibit the establishments
enumerated in Section 1 of the Ordinance, it would have so declared in uncertain terms by adding them to the list of
the matters it may prohibit under the above-quoted Section. The Ordinance now vainly attempts to lump these
establishments with houses of ill-repute and expand the City Council's powers in the second and third clauses of
Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers. It is evident that these
establishments may only be regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the establishments themselves. That these establishments
are recognized legitimate enterprises can be gleaned from another Section of the Code. Section 131 under the Title on
Local Government Taxation expressly mentioned proprietors or operators of massage clinics, sauna, Turkish and
Swedish baths, hotels, motels and lodging houses as among the "contractors" defined in paragraph (h) thereof. The
same Section also defined "amusement" as a "pleasurable diversion and entertainment," "synonymous to relaxation,
avocation, pastime or fun;" and "amusement places" to include "theaters, cinemas, concert halls, circuses and other
places of amusement where one seeks admission to entertain oneself by seeing or viewing the show or performances."
Thus, it can be inferred that the Code considers these establishments as legitimate enterprises and activities. It is well
to recall the maxim reddendo singula singulis which means that words in different parts of a statute must be referred
to their appropriate connection, giving to each in its place, its proper force and effect, and, if possible, rendering none
of them useless or superfluous, even if strict grammatical construction demands otherwise. Likewise, where words
under consideration appear in different sections or are widely dispersed throughout an act the same principle
applies.120
Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of P.D. 499. As correctly
argued by MTDC, the statute had already converted the residential Ermita-Malate area into a commercial area. The
decree allowed the establishment and operation of all kinds of commercial establishments except warehouse or open
storage depot, dump or yard, motor repair shop, gasoline service station, light industry with any machinery or funeral
establishment. The rule is that for an ordinance to be valid and to have force and effect, it must not only be within the
powers of the council to enact but the same must not be in conflict with or repugnant to the general law. 121 As
succinctly illustrated in Solicitor General v. Metropolitan Manila Authority:122
The requirement that the enactment must not violate existing law explains itself. Local political subdivisions
are able to legislate only by virtue of a valid delegation of legislative power from the national legislature
(except only that the power to create their own sources of revenue and to levy taxes is conferred by the
Constitution itself). They are mere agents vested with what is called the power of subordinate legislation. As
delegates of the Congress, the local government units cannot contravene but must obey at all times the will of
their principal. In the case before us, the enactment in question, which are merely local in origin cannot
prevail against the decree, which has the force and effect of a statute.123
Petitioners contend that the Ordinance enjoys the presumption of validity. While this may be the rule, it has already
been held that although the presumption is always in favor of the validity or reasonableness of the ordinance, such
presumption must nevertheless be set aside when the invalidity or unreasonableness appears on the face of the
ordinance itself or is established by proper evidence. The exercise of police power by the local government is valid
unless it contravenes the fundamental law of the land, or an act of the legislature, or unless it is against public policy
or is unreasonable, oppressive, partial, discriminating or in derogation of a common right. 124
Conclusion
All considered, the Ordinance invades fundamental personal and property rights and impairs personal privileges. It is
constitutionally infirm. The Ordinance contravenes statutes; it is discriminatory and unreasonable in its operation; it is
not sufficiently detailed and explicit that abuses may attend the enforcement of its sanctions. And not to be forgotten,
the City Council under the Code had no power to enact the Ordinance and is therefore ultra vires, null and void.
Concededly, the challenged Ordinance was enacted with the best of motives and shares the concern of the public for
the cleansing of the Ermita-Malate area of its social sins. Police power legislation of such character deserves the full
endorsement of the judiciary we reiterate our support for it. But inspite of its virtuous aims, the enactment of

the Ordinance has no statutory or constitutional authority to stand on. Local legislative bodies, in this case, the City
Council, cannot prohibit the operation of the enumerated establishments under Section 1 thereof or order their transfer
or conversion without infringing the constitutional guarantees of due process and equal protection of laws not even
under the guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court declaring
theOrdinance void is AFFIRMED. Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Callejo,
Sr.,
Azcuna,
Chico-Nazario and Garcia,
JJ., concur
Panganiban,
J.,
in
the
result.
Ynares- Santiago, J., concur in the result only.

Footnotes
1 Dated 11 January 1995; Rollo, pp. 6-73 with annexes.
2 Id. at 64-72.
3 The lower court declared the Ordinance to be null and void.
4 In the case of Cotton Club Corporation, etc. v. Hon. Alfredo S. Lim, etc, et al. before RTC, Branch 55 of

Manila, docketed as Civil Case No. 93-66551, Judge Hermogenes R. Liwag declared the Ordinance void and
unconstitutional. The defendants elevated the case to the Court of Appeals which denied their petition on
procedural grounds in its Decision dated 21 May 2003. It appears that defendants Hon. Alfredo S. Lim and
the City Council of Manila did not elevate the case before the Court. Entry of Judgment of the CA Decision
was made on 22 April 2003.
5 Rollo, p. 37.
6 Id. at. 75; It now calls itself Hotel Victoria.
7 Id. at 35-47.
8 Id. at 46.
9 The principal authors of the Ordinance are: Hons. Bienvenido M. Abante, Jr.; Humberto B. Basco; Nestor

C. Ponce, Jr.; Ernesto A. Nieva; Francisco G. Varona, Jr.; Jhosep Y. Lopez; Ma. Paz E. Herrera; Gerino A.
Tolentino, Jr; Ma. Lourdes M. Isip; Flaviano F. Concepcion, Jr.; Ernesto V.P. Maceda, Jr.; Victoriano A.
Melendez; Ma. Corazon R. Caballes; Bernardito C. Ang; Roberto C. Ocampo; Rogelio B. dela Paz; Romeo G.
Rivera; Alexander S. Ricafort; Avelino S. Cailian; Bernardo D. Ragasa; Joey D. Hizon; Leonardo L. Angat;
and Jocelyn B. Dawis.
10 Rollo, p. 8.
11 RTC Records, pp. 10-11.
12 Paragraph (a) 4 (iv), Section 458, Chapter 3 of the Code reads, thus:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the city in order to
promote the general welfare and for said purpose shall:
. . ..
(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; . . .
13 Presidential Decree No. 499; Dated 28 June 1974; Declaring Portions of the Ermita-Malate Area as

Commercial Zones with Certain Restrictions. It reads in full:

WHEREAS, the government is committed to the promotion and development of tourism in the country,
particularly in the City of Manila which is the hub of commercial and cultural activities in Manila
Metropolitan Area;
WHEREAS, certain portions of the districts of Ermita and Malate known as the Tourist Belt are still
classified as Class "A" Residential Zones and Class "B" Residential Zones where hotels and other business
establishments such as curio stores, souvenir shops, handicraft display centers and the like are not allowed
under the existing zoning plan in the City of Manila;
WHEREAS, the presence of such establishments in the area would not only serve as an attraction for
tourists but are dollar earning enterprises as well, which tourist areas all over the world cannot do without;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested in me under the Constitution as Commander-in-Chief of all the Armed Forces of the
Philippines and pursuant to Proclamation No. 1081, dated September 21, 1972, and General Order No. 1,
dated September 22, 1972, as amended, do hereby order and decree the classification as a Commercial Zone
of that portion of the Ermita-Malate area bounded by Teodoro M. Kalaw, Sr. Street in the north; Taft Avenue
in the east; Vito Cruz Street in the south and Roxas Boulevard in the west. PROVIDED, HOWEVER, That no
permit shall be granted for the establishment of any new warehouse or open storage depot, dump or yard,
motor repair shop, gasoline service station, light industry with any machinery or funeral establishment in
these areas, and PROVIDED, FURTHER, That for purposes of realty tax assessment on properties situated
therein, lands and buildings used exclusively for residential purposes by the owners themselves shall remain
assessed as residential properties.
All laws, ordinances, orders, rules and regulations which are inconsistent with this Decree are hereby
repealed or modified accordingly.
This Decree shall take effect immediately.
Done in the City of Manila this 28 th day of June in the year of Our Lord, nineteen hundred and seventyfour.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-50908 January 31, 1984
MARY CONCEPCION BAUTISTA and ENRIQUE D. BAUTISTA, petitioners,
vs.
ALFREDO L. JUINIO, ROMEO F. EDU and FIDEL V. RAMOS, respondents.
Mary Concepcion Bautista for and in his own behalf.
The Solicitor General for respondents.

FERNANDO, C.J.:
The validity of an energy conservation measure, Letter of Instruction No. 869, issued on May 31, 1979 the
response to the protracted oil crisis that dates back to 1974 is put in issue in this prohibition proceeding filed by
petitioners, spouses Mary Concepcion Bautista and Enrique D. Bautista, for being allegedly violative of the due
process and equal protection guarantees 1 of the Constitution. The use of private motor vehicles with H and EH plates on week-ends and holidays was

2 Motor vehicles of
the following classifications are exempted: (a) S (Service); (b) T (Truck); (e) DPL (Diplomatic); (d) CC (Consular Corps);
(e) TC (Tourist Cars). 3 Pursuant thereto, respondent Alfredo L. Juinio, then Minister of Public Works, Transportation and
Communications and respondent Romeo P. Edu, then Commissioner of Land Transportation Commission issued on June 11,
1979, Memorandum Circular No. 39, which imposed "the penalties of fine, confiscation of vehicle and cancellation of
registration on owners of the above-specified vehicles" found violating such Letter of Instruction. 4 It was then alleged by
petitioners that "while the purpose for the issuance of the LOI 869 is laudable, to wit, energy conservation, the provision
banning the use of H and EH [vehicles] is unfair, discriminatory, [amounting to an] arbitrary classification" and thus in
contravention of the equal protection clause. 5 Moreover, for them, such Letter of Instruction is a denial of due process,
more specifically, "of their right to use and enjoy their private property and of their freedom to travel and hold family
gatherings, reunions and outings on week-ends and holidays," inviting attention to the fact that others not included in the
ban enjoying "unrestricted freedom." 6 It would follow, so they contend that Memorandum Circular No. 39 imposing
penalties of fine, confiscation of the vehicle and cancellation of license is likewise unconstitutional, for being violative of
the doctrine of "undue delegation of legislative power." 7 It is to be noted that such Memorandum Circular does not impose
the penalty of confiscation but merely that of impounding, fine, and for the third offense that of cancellation of certificate of
registration and for the rest of the year or for ninety days whichever is longer.
banned from "[12:00] a.m. Saturday morning to 5:00 a.m. Monday morning, or 1:00 a.m. of the holiday to 5:00 a.m. of the day after the holiday."

This Court gave due course to the petition requiring respondent to answer. There was admission of the facts as
substantially alleged except, as previously noted, that the ban starts at 12:00 a.m. rather than 1:00 a.m. of a Saturday
or of a holiday and as to the mention of a Willy's Kaiser jeep being registered in the name of a certain Teresita Urbina,
about which respondents had no knowledge. There was a denial of the allegations that the classification of vehicles
into heavy H and extra heavy (EH) on the other hand and light and bantam on the other hand was violative of equal
protection and the regulation as to the use of the former cars on the dates specified a transgression of due process. The
answer likewise denied that there was an undue delegation of legislative power, reference being made to the Land
Transportation and Traffic Code. 8 There was also a procedural objection raised, namely, that what is sought amounts at
most to an advisory opinion rather than an ajudication of a case or controversy.
Petitioners filed a motion to be allowed to reply to the answer. It was granted. The reply, considering its exhaustive
character serving as its memorandum, stressed anew what it emphasized as the arbitrary, unreasonable, and oppressive
aspects of the challenged Letter of Instruction and Memorandum Circular No. 39. It disputed what it characterized as
an "erroneous and arbitrary presumption that heavy car owners unnecessarily use and therefore waste gasoline
whenever they drive their cars on week-ends and holidays;" 9 it stigmatized the ban as defeating its "avowed purpose in
the case of the affluent who own not only heavy limousines but also many small cars [as] they may be compelled to use at
least two small cars;" 10 referred to the high cost of taxis or other public transports for those "not able to afford expensive small cars [possibly] only one heavy and
possible old model;" 11 cited the case of "many eight cylinder vehicles which because of their weight have been registered as light but in fact consume more or as much gasoline
as the banned vehicles." 12 Their conclusion is that "the ban imposed, in result and effect is class legislation." 13

The parties were required to submit memoranda. Respondents did so but not petitioners. They relied on their reply to
the answer as noted, a rather comprehensive pleading. For reasons to be set forth, this Court holds that the petition
cannot prosper.
1. First as to the procedural objection. In the memorandum for respondents, one of the issues raised was whether "the
power of judicial review may be invoked considering the inadequacy of the record and the highly abstract and
academic questions raised by the petitioners." 14 It is inaccurate to say that the record is inadequate. It does not admit of doubt that the ban applies to
petitioners who are "the registered owners of an eight cylinder 1969 Buick, and the vendees of a six cylinder Willy's kaiser jeep, which are both classified as heavy or H." 15 To
that extent, therefore, the enforcement of the assailed Letter of Instruction will amount to a deprivation of what otherwise would be a valid exercise of a property right. Thus they
fall squarely within "the unchallenged rule" as to who may raise a constitutional question, namely, to quote the language of Justice Laurel in the leading case of People v.
Vera, 16 "that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a
result of its enforcement. 17 Moreover, that rule has been considerably relaxed. 18 The question then is neither abstract nor academic as contended by respondents.

2. There is, however, this formidable obstacle that confronts petitioners. What they seek is for this Court to hold that a
Letter of Instruction, a regulatory measure precisely enacted to cope with the serious and grave problem of energy
conservation, is void on its face. Such a task is rendered unusually difficult by what has been referred to by Justice
Laurel in the leading case of Angara v. Electoral Commission 19 as the "presumption of constitutionality" and by the same jurist in the case
of People v. Vera 20 in slightly different words "a presumption that such an act falls within constitutional limitations." There is
need then for a factual foundation of invalidity. In the language of Ermita-Malate Hotel & Motel Operations Association,
Inc. v. City Mayor or Manila: "It admits of no doubt therefore that there being a presumption of validity, the necessity for
evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the case here. The
principle has been nowhere better expressed than in the leading case of O'Gorman & Young v. Hartford Fire Insurance Co.,
where the American Supreme Court through Justice Brandeis tersely and succinctly summed up the matter thus: 'The statute
here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the
ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of

law. As underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of
constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute.' " 21

3. It is true, of course, that there may be instances where a police power measure may, because of its arbitrary,
oppressive or unjust character, be held offensive to the due process clause and, therefore, may, when challenged in an
appropriate legal proceeding, be declared void on its face. This is not one of them. A recital of the whereas clauses of
the Letter of Instruction makes it clear. Thus: "[Whereas], developments in the international petroleum supply
situation continue to follow a trend of limited production and spiralling prices thereby precluding the possibility of
immediate relief in supplies within the foreseeable future; [Whereas], the uncertainty of fuel supply availability
underscores a compelling need for the adoption of positive measures designed to insure the viability of the country's
economy and sustain its developmental growth; [Whereas], to cushion the effect of increasing oil prices and avoid fuel
supply disruptions, it is imperative to adopt a program directed towards the judicious use of our energy resources
complemented with intensified conservation efforts and efficient utilization thereof; * * *." 22That is undeniable is that
the action taken is an appropriate response to a problem that presses urgently for solution. It may not be the only alternative,
but its reasonableness is immediately apparent. Thus, to repeat, substantive due process, which is the epitome of
reasonableness and fair play, is not ignored, much less infringed.
4. In the interplay between such a fundamental right and police power, especially so where the assailed governmental
action deals with the use of one's property, the latter is accorded much leeway. That is settled law. What is more, it is
good law. Due process, therefore, cannot be validly invoked. As stressed in the cited Ermita-Malate Hotel decision:
"To hold otherwise would be to unduly restrict and narrow the scope of police power which has been properly
characterized as the most essential, insistent and the least limitable of powers, extending as it does 'to all the great
public needs.' It would be, to paraphrase another leading decision, to destroy the very purpose of the state if it could
be deprived or allowed itself to be deprived of its competence to promote public health, public morals, public safety
and the general welfare. Negatively put, police power is 'that inherent and plenary power in the State which enables it
to prohibit all that is hurtful to the comfort, safety, and welfare of society.' " 23
5. The due process question having been disposed of, there is still the objection based on the equal protection clause to
be considered. A governmental act may not be offensive to the due process clause, but may run counter to such a
guarantee. Such is the case when there is no rational basis for the classification followed. That is the point raised by
petitioners. For them, there is no rational justification for the ban being imposed on vehicles classified as heavy (H)
and extra-heavy (EH), for precisely those owned by them fall within such category. Tested by the applicable standard
that must be satisfied to avoid the charge of a denial of equal protection, the objection of petitioners is shown to be
lacking in merit. Such a classification on its face cannot be characterized as an affront to reason. A legal norm
according to J.M. Tuason & Co., Inc. vs. Land Tenure Administration, 24 "whether embodied in a rule, principle, or
standard, constitutes a defense against anarchy at one extreme and tyranny at the other. Thereby, people living together in a
community with its myriad and complex problems can minimize the friction and reduce the conflicts, to assure, at the very
least, a peaceful ordering of existence. The Ideal situation is for the law's benefits to be available to all, that none be placed
outside the sphere of its coverage. Only thus could chance and favor be excluded and the affairs of men governed by that
serene and impartial uniformity, which is of the very essence of the Idea of law. The actual, given things as they are and
likely to continue to be, cannot approximate the Ideal. Nor is the law susceptible to the reproach that it does not take into
account the realties of the situation. * * * To assure that the general welfare be promoted, which is the end of law, a
regulatory measure may cut into the rights to liberty and property. Those adversely affected may under such circumstances
invoke the equal protection clause only if they can show that the governmental act assailed, far from being inspired by the
attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no
support in reason. It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or
that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and
the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and
security shall be given to every person under circumstances, which if not Identical are analogous. If law be looked upon in
terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on
some in the group equally binding on the rest." 25
6. Nor does it militate against the validity of the Letter of Instruction just because the ban imposed does not go as far
as it could have and therefore could be less efficacious in character. That was the solution which for the President
expressing a power validly lodged in him, recommended itself. There was a situation that called for a corrective
measure. He decided that what was issued by him would do just that or, at the very least, help in easing the situation.
That it did not cover other matters which could very well have been regulated does not call for a declaration of nullity.
The President, to paraphrase Lutz v. Araneta, 26 "is not required by the Constitution to adhere to the policy of all or
none." 27 It is quite obvious then that no equal protection question arises.

7. It may not be amiss to refer to a 1981 American Supreme Court decision, Minnesota v. Clover Leaf Creamery
Company. 28 Respondent along with several other business corporations adversely affected involved in the manufacture
and utilization of plastic milk containers filed suit in a Minnesota district court seeking to enjoin enforcement of a
Minnesota statute banning the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permitting such sale
in other nonreturnable, nonrefillable containers, such as paperboard, milk cartons. After conducting extensive evidentiary
hearings, the Minnesota court enjoined enforcement of the statute, finding that it violated among others the equal protection
clause of the Fourteenth Amendment to the Federal Constitution. The Minnesota Supreme Court affirmed. On certiorari, the
United States Supreme Court reversed, with only Justice Stevens dissenting. The opinion by Justice Brennan noted that
"proponents of the legislation argued that it would promote resource conservation, ease solid waste disposal problems, and
conserve energy." 29 That sufficed for the Court to conclude "that the ban on plastic nonreturnable milk containers bears a
rational relation to the State's objectives, and must be sustained under the Equal Protection Clause." 30 It does show that
notwithstanding the "new equal protection approach" with its emphasis on "suspect classification" and "fundamental rights
and interests standard," a concept so ably expounded by professor Gunther, the "rational relation test" 31 still retains its
validity. Not that there could be any objection to the classification here followed as being in any way susceptible to such a
pejorative expression as "suspect" or that the assailed Letter of Instruction does not qualify under "the fundamental rights
and interests" standard
8. There was set forth in the petition what were referred to as "other reasonable measures which the authorities
concerned with energy conservation can take immediately, which are in fact acceptable and obviously called for and
should have been done long ago, to wit: 1. require and establish taxi stands equipped with efficient telephone and
communication systems; 2. strict implementation and observance of cargo truck hours on main arteries; 3. strict
observance of traffic rules; 4. effective solution of traffic problems and decongestion of traffic through rerouting and
quick repair of roads and efficient operation of double decker buses; 5. rationing of gasoline to avoid panic buying and
give the private car owner the option and responsibility of deciding on the use of his allocation; 6. allow neon and
electrically devised advertising signs only from five o'clock p.m. to nine o'clock p.m. 7. prohibit immediately the
importation of heavy and luxury cars and seriously re-examine the car manufacturing program." 32 Admittedly, such
measures are conducive to energy conservation. The question before us however is limited to whether or not Letter of
Instruction 869 as implemented by Memorandum Circular No. 39 is violative of certain constitutional rights. It goes no
further than that. The determination of the mode and manner through which the objective of minimizing the consumption of
oil products may be attained is left to the discretion of the political branches. 33 Absent therefore the alleged infringement
of constitutional rights, more precisely the due process and equal protection guarantees, this Court cannot adjudge Letter of
Instruction No. 869 as tainted by unconstitutionality.
9. It was likewise contended that Memorandum Circular No. 39, issued by the then respondent Minister of Public
Works, Transportation and Communications, and then respondent Land Transportation Commissioner, imposing the
penalties "of fine, confiscation of vehicle and cancellation of license is likewise unconstitutional," petitioners invoking
the principle of non-delegation of legislative power. 34 To that extent that a Letter of Instruction may be viewed as an
exercise of the decree-making power of the President, then such an argument is futile. If, however, viewed as a compliance
with the duty to take care that the laws be faithfully executed, as a consequence of which subordinate executive officials
may in turn issue implementing rules and regulations, then the objection would properly be considered as an ultra
vires allegation. There is this relevant excerpt from Teoxon v. Member of the Board of Administrators: 35 "1. The
recognition of the power of administrative officials to promulgate rules in the implementation of the statute, necessarily
limited to what is provided for in the legislative enactment, may be found in the early case of United States v.
Barriasdecided in 1908. Then came, in a 1914 decision, United States v. Tupasi Molina, a delineation of the scope of such
competence. Thus: 'Of course the regulations adopted under legislative authority by a particular department must be in
harmony with the provisions of the law, and for the sole purpose of carrying into effect its general provisions. By such
regulations, of course, the law itself can not be extended. So long, however, as the regulations relate solely to carrying into
effect the provisions of the law, they are valid.' In 1936, in People v. Santos, this Court expressed its disapproval of an
administrative order that would amount to an excess of the regulatory power vested in an administrative official. We
reaffirmed such a doctrine in a 1951 decision, where we again made clear that where an administrative order betrays
inconsistency or repugnancy to the provisions of the Act, 'the mandate of the Act must prevail and must be followed.' Justice
Barrera, speaking for the Court in Victorias Milling Company, Inc. v. Social Security Commission, citing Parker as well as
Davis did tersely sum up the matter thus: 'A rule is binding on tile courts so long as the procedure fixed for its promulgation
is followed and its scope is within the statutory granted by the legislature, even if the courts are not in agreement with the
policy stated therein or its innate wisdom * * *. On the other hand, administrative interpretation of the law is at best merely
advisory, for it is the courts that finally determine what the law means.' It cannot be otherwise as the Constitution limits the
authority of the President, in whom all executive power resides, to take care that the laws be faithfully executed. No lesser
administrative executive office or agency then can, contrary to the express language of the Constitution, assert for itself a
more extensive prerogative." 36 It was alleged in the Answer of Solicitor General Estelito P. Mendoza that Letter of

Instruction 869 and Memorandum Circular No. 39 were adopted pursuant to the Land Transportation and Traffic Code. 37 It
contains a specific provision as to penalties. 38 Thus: "For violation of any provisions of this Act or regulations promulgated
pursuant hereto, not hereinbefore specifically punished, a fine of not less than ten nor more than fifty pesos shall be
imposed." 39 Memorandum Circular No. 39 cannot be held to be ultra vires as long as the fine imposed is not less than ten
nor more than fifty pesos. As to suspension of registration, 40 the Code, insofar as applicable, provides: "Whenever it shall
appear from the records of the Commission that during any twelve-month period more than three warnings for violations of
this Act have been given to the owner of a motor vehicle, or that the said owner has been convicted by a competent court
more than once for violation of such laws, the Commissioner may, in his discretion, suspend the certificate of registration
for a period not exceeding ninety days and, thereupon, shall require the immediate surrender of the number plates * *
*." 41 It follows that while the imposition of a fine or the suspension of registration under the conditions therein set forth is
valid under the Land Transportation and Traffic Code, the impounding of a vehicle finds no statutory justification. To apply
that portion of Memorandum Circular No. 39 would be ultra vires. It must likewise be made clear that a penalty even if
warranted can only be imposed in accordance with the procedure required by law. 42

WHEREFORE, the petition is dismissed.

Aquino, Guerrero, De Castro, Melencio-Herrera, Escolin, Relova and Gutierrez, Jr., JJ., concur.
Makasiar and Concepcion J., took no part.

Separate Opinions

ABAD SANTOS, J., dissenting:

The power of the State to restrict the use of certain motor vehicles during stated days and hours as a fuel-saving
measure is to me indubitable. It is anchored on the police power of the State. For this reason LOI No. 869 cannot be
assailed successfully as violative of due process and equal protection guarantees of the Constitution.
There is also no question as to the power of the Commissioner of Land Transportation and the Minister of Public
Works, Transportation and Communication to issue Memorandum Circular No. 39 on June 11, 1979. The circular was
necessary to implement the LOI. But it does not follow that the circular is completely immune from the taint of
infirmity.
I refer to paragraph 4 of the circular which provides, inter alia, for penalties consisting of fine and suspension or
cancellation of the certificate of registration for owners of motor vehicles violating the LOI. This portion of the
circular is clearly illegal for the LOI is absolutely and completely devoid of legal sanctions and consequently the
implementing circular cannot prescribe them. It is elementary that only the legislature (or the President in the exercise
of his legislative power) can prescribe penalties. Executive officials whose task is to enforce the law can prescribe
penalties only if they are authorized to do so within specified limits by the legislature.
It is contended by the respondents that the LOI and the implementing circular were adopted pursuant to the Land
Transportation and Traffic Code Republic Act No. 4136. This contention is utterly baseless.
LOI No. 869 can be compared to a multiple independently targeted ballistic missile. It tasks various agencies of the
government as follows:
1. The Ministry of Energy shall during the period of tight supply, limit as necessary, sales of fuel
products by oil companies and other outlets to all consumers including the government and the
Armed Forces of the Philippines. Initially sales shall be limited to 1978 levels. This may be adjusted
upward or downward as required to balance supply with demand and to equitably distribute available
supplies. Moreover, the Ministry of Energy is hereby authorized to set supply priorities and to
establish supply allocations accordingly.
2. The Ministry of Local Government and Community Development in cooperation with the Ministry
of Energy shall formulate energy conservation plans and implement the same through the Bay
brigades; moreover, it shall assist in the implementation of other conservation measures to be
instituted by other government agencies.

3. The Metro Manila Commission, in coordination with the appropriate government agencies, shall
develop, implement and supervise a program for the implementation of the Executive Order on the
staggering of office hours of both government and private sectors to achieve optimum use of
transportation facilities, as well as to improve traffic flow.
4. All Ministries, agencies and corporations of the government shall discontinue the use of
airconditioning facilities in offices whom adequate ventilation is available. Any use of
airconditioning facilities by government offices shall be only with prior approval of the respective
ministers and, where allowed temperature shall be kept at a minimum of 78 o F.
5. The Ministry of Public Works, Transportation and Communications shall prohibit the use of
private motor vehicles under the "H" and "EH" classifications of the LTC on weekends and holidays
starting 0001 hours, Saturday morning, (or the day of the holiday) until 0500 hours, Monday morning
(or the day after the holiday).
Exempted from this prohibition are motor vehicles of the following classifications:
(a) S (Service)
(b) T (Truck)
(c) DPL (Diplomatic)
(d) CC (Consular Corps)
(e) TC (Tourist Cars)
6. The Metro Manila Traffic Management Authority shall, in coordination with the appropriate
ministries, institute traffic flow improvement measures to ensure better traffic flow. These agencies
moreover, shall review the traffic citation system in order to simplify the application of sanctions for
traffic violations.
7. The Ministry of Public Works, Transportation and Communication shall review the registration
requirements of vehicles with a view to weeding out inefficient motor vehicles.
8. The Ministry of National Defense shall prohibit sports activities involving mainly the use of motor
vehicles, watercraft and aircraft, including but not limited to car and motorcycle rallies, racing and
similar events.
9. All government Ministries, agencies and corporations shall limit the use of government vehicles to
essential activities and shall review travel program and schedules to unnecessary trips.
10. The Metro Manila Commission, in coordination with the appropriate agencies, shall study the
feasibility of designating pedestrian mails and bicycle lanes.
11. The Ministry of National Defense shall intensify the drive against hoarding or black marketing of
fuel especially of kerosene and diesel and other petroleum products which from time to time may be
short of supply.
12. The Ministry of Energy shall monitor and report on the implementation of the foregoing
measures.
How can it be claimed with a straight face that the LOI was adopted pursuant to R.A. No. 4136 when nowhere in the
LOI is the law mentioned aside from the fact that the Ministry of Public Works, Transportation and Communication
which is entrusted with the enforcement of R.A. No. 4136 is only one of the many agencies involved in conserving
energy resources? It is obvious for any one willing to see that R.A. No. 4136 has no relevance to the LOI. Such being
the case, the circular which is merely an accessory to the LOI cannot also be related to R.A. No. 4136.
LOI No. 869 is constitutional but its application pursuant to Memorandum Circular No. 39 is not. For this reason, I
vote to grant the petition.
I close this dissent with the following observation: the prohibition against the use of certain vehicles during certain
times has not been uniformly and consistently enforced. We are a nation surrounded by rules but many of which are
not enforced or enforced indifferently. This situation breeds contempt instead of respect for the law. A few rules that
are consistently enforced are better than many which are violated with impunity.

Teehankee, J., concurs.

Plana, J., dissent.

Separate Opinions
ABAD SANTOS, J., dissenting:
The power of the State to restrict the use of certain motor vehicles during stated days and hours as a fuel-saving
measure is to me indubitable. It is anchored on the police power of the State. For this reason LOI No. 869 cannot be
assailed successfully as violative of due process and equal protection guarantees of the Constitution.
There is also no question as to the power of the Commissioner of Land Transportation and the Minister of Public
Works, Transportation and Communication to issue Memorandum Circular No. 39 on June 11, 1979. The circular was
necessary to implement the LOI. But it does not follow that the circular is completely immune from the taint of
infirmity.
I refer to paragraph 4 of the circular which provides, inter alia, for penalties consisting of fine and suspension or
cancellation of the certificate of registration for owners of motor vehicles violating the LOI. This portion of the
circular is clearly illegal for the LOI is absolutely and completely devoid of legal sanctions and consequently the
implementing circular cannot prescribe them. It is elementary that only the legislature (or the President in the exercise
of his legislative power) can prescribe penalties. Executive officials whose task is to enforce the law can prescribe
penalties only if they are authorized to do so within specified limits by the legislature.
It is contended by the respondents that the LOI and the implementing circular were adopted pursuant to the Land
Transportation and Traffic Code Republic Act No. 4136. This contention is utterly baseless.
LOI No. 869 can be compared to a multiple independently targeted ballistic missile. It tasks various agencies of the
government as follows:
1. The Ministry of Energy shall during the period of tight supply, limit as necessary, sales of fuel
products by oil companies and other outlets to all consumers including the government and the
Armed Forces of the Philippines. Initially sales shall be limited to 1978 levels. This may be adjusted
upward or downward as required to balance supply with demand and to equitably distribute available
supplies. Moreover, the Ministry of Energy is hereby authorized to set supply priorities and to
establish supply allocations accordingly.
2. The Ministry of Local Government and Community Development in cooperation with the Ministry
of Energy shall formulate energy conservation plans and implement the same through the Bay
brigades; moreover, it shall assist in the implementation of other conservation measures to be
instituted by other government agencies.
3. The Metro Manila Commission, in coordination with the appropriate government agencies, shall
develop, implement and supervise a program for the implementation of the Executive Order on the
staggering of office hours of both government and private sectors to achieve optimum use of
transportation facilities, as well as to improve traffic flow.
4. All Ministries, agencies and corporations of the government shall discontinue the use of
airconditioning facilities in offices whom adequate ventilation is available. Any use of
airconditioning facilities by government offices shall be only with prior approval of the respective
ministers and, where allowed temperature shall be kept at a minimum of 78 o F.
5. The Ministry of Public Works, Transportation and Communications shall prohibit the use of
private motor vehicles under the "H" and "EH" classifications of the LTC on weekends and holidays
starting 0001 hours, Saturday morning, (or the day of the holiday) until 0500 hours, Monday morning
(or the day after the holiday).
Exempted from this prohibition are motor vehicles of the following classifications:
(a) S (Service)
(b) T (Truck)

(c) DPL (Diplomatic)

(d) CC (Consular Corps)
(e) TC (Tourist Cars)
6. The Metro Manila Traffic Management Authority shall, in coordination with the appropriate
ministries, institute traffic flow improvement measures to ensure better traffic flow. These agencies
moreover, shall review the traffic citation system in order to simplify the application of sanctions for
traffic violations.
7. The Ministry of Public Works, Transportation and Communication shall review the registration
requirements of vehicles with a view to weeding out inefficient motor vehicles.
8. The Ministry of National Defense shall prohibit sports activities involving mainly the use of motor
vehicles, watercraft and aircraft, including but not limited to car and motorcycle rallies, racing and
similar events.
9. All government Ministries, agencies and corporations shall limit the use of government vehicles to
essential activities and shall review travel program and schedules to unnecessary trips.
10. The Metro Manila Commission, in coordination with the appropriate agencies, shall study the
feasibility of designating pedestrian mails and bicycle lanes.
11. The Ministry of National Defense shall intensify the drive against hoarding or black marketing of
fuel especially of kerosene and diesel and other petroleum products which from time to time may be
short of supply.
12. The Ministry of Energy shall monitor and report on the implementation of the foregoing
measures.
How can it be claimed with a straight face that the LOI was adopted pursuant to R.A. No. 4136 when nowhere in the
LOI is the law mentioned aside from the fact that the Ministry of Public Works, Transportation and Communication
which is entrusted with the enforcement of R.A. No. 4136 is only one of the many agencies involved in conserving
energy resources? It is obvious for any one willing to see that R.A. No. 4136 has no relevance to the LOI. Such being
the case, the circular which is merely an accessory to the LOI cannot also be related to R.A. No. 4136.
LOI No. 869 is constitutional but its application pursuant to Memorandum Circular No. 39 is not. For this reason, I
vote to grant the petition.
I close this dissent with the following observation: the prohibition against the use of certain vehicles during certain
times has not been uniformly and consistently enforced. We are a nation surrounded by rules but many of which are
not enforced or enforced indifferently. This situation breeds contempt instead of respect for the law. A few rules that
are consistently enforced are better than many which are violated with impunity.
Teehankee, J., concur
Plana, J., dissent.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 107916 February 20, 1997

PERCIVAL MODAY, ZOTICO MODAY (deceased) and LEONORA MODAY, petitioners,
vs.
COURT OF APPEALS, JUDGE EVANGELINE S. YUIPCO OF BRANCH 6, REGIONAL TRIAL COURT,
AGUSAN DEL SUR AND MUNICIPALITY OF BUNAWAN, respondents.

ROMERO, J.:
The main issue presented in this case is whether a municipality may expropriate private property by virtue of a
municipal resolution which was disapproved by the Sangguniang Panlalawigan. Petitioner seeks the reversal of the
Court of Appeals decision and resolution, promulgated on July 15, 1992 and October 22, 1992 respectively, 1and a
declaration that Municipal Resolution No. 43-89 of the Bunawan Sangguniang Bayan is null and void.
On July 23, 1989, the Sangguniang Bayan of the Municipality of Bunawan in Agusan del Sur passed Resolution No.
43-89, "Authorizing the Municipal Mayor to Initiate the Petition for Expropriation of a One (1) Hectare Portion of Lot
No. 6138-Pls-4 Along the National Highway Owned by Percival Moday for the Site of Bunawan Farmers Center and
Other Government Sports Facilities." 2
In due time, Resolution No. 43-89 was approved by then Municipal Mayor Anuncio C. Bustillo and transmitted to the
Sangguniang Panlalawigan for its approval. On September 11, 1989, the Sangguniang Panlalawigan disapproved said
Resolution and returned it with the comment that "expropriation is unnecessary considering that there are still
available lots in Bunawan for the establishment of the government center." 3
The Municipality of Bunawan, herein public respondent, subsequently filed a petition for Eminent Domain against
petitioner Percival Moday before the Regional Trial Court at Prosperidad, Agusan del Sur. 4 The complaint was later
amended to include the registered owners, Percival Moday's parents, Zotico and Leonora Moday, as party defendants.
On March 6, 1991, public respondent municipality filed a Motion to Take or Enter Upon the Possession of Subject
Matter of This Case stating that it had already deposited with the municipal treasurer the necessary amount in
accordance with Section 2, Rule 67 of the Revised Rules of Court and that it would be in the government's best
interest for public respondent to be allowed to take possession of the property.
Despite petitioners' opposition and after a hearing on the merits, the Regional Trial Court granted respondent
municipality's motion to take possession of the land. The lower court held that the Sangguniang Panlalawigan's failure
to declare the resolution invalid leaves it effective. It added that the duty of the Sangguniang Panlalawigan is merely
to review the ordinances and resolutions passed by the Sangguniang Bayan under Section 208 (1) of B.P. Blg. 337, old
Local Government Code and that the exercise of eminent domain is not one of the two acts enumerated in Section 19
thereof requiring the approval of the Sangguniang Panlalawigan. 5 The dispositive portion of the lower court's Order
dated July 2, 1991 reads:
WHEREFORE, it appearing that the amount of P632.39 had been deposited as per Official Receipt
No. 5379647 on December 12, 1989 which this Court now determines as the provisional value of the
land, the Motion to Take or Enter Upon the Possession of the Property filed by petitioner through
counsel is hereby GRANTED. The Sheriff of this Court is ordered to forthwith place the plaintiff in
possession of the property involved.
Let the hearing be set on August 9, 1991 at 8:30 o'clock in the morning for the purpose of
ascertaining the just compensation or fair market value of the property sought to be taken, with notice
to all the parties concerned.
SO ORDERED. 6
Petitioners' motion for reconsideration was denied by the trial court on October 31, 1991.
Petitioners elevated the case in a petition for certiorari alleging grave abuse of discretion on the part of the trial court,
but the same was dismissed by respondent appellate court on July 15, 1992. 7 The Court of Appeals held that the public
purpose for the expropriation is clear from Resolution No. 43-89 and that since the Sangguniang Panlalawigan of Agusan
del Sur did not declare Resolution No. 43-89 invalid, expropriation of petitioners' property could proceed.
Respondent appellate court also denied petitioners' motion for reconsideration on October 22, 1992. 8
Meanwhile, the Municipality of Bunawan had erected three buildings on the subject property: the Association of
Barangay Councils (ABC) Hall, the Municipal Motorpool, both wooden structures, and the Bunawan Municipal
Gymnasium, which is made of concrete.
In the instant petition for review filed on November 23, 1992, petitioner seeks the reversal of the decision and
resolution of the Court of Appeals and a declaration that Resolution No. 43-89 of the Municipality of Bunawan is null

and void.
On December 8, 1993, the Court issued a temporary restraining order enjoining and restraining public respondent
Judge Evangeline Yuipco from enforcing her July 2, 1991 Order and respondent municipality from using and
occupying all the buildings constructed and from further constructing any building on the land subject of this
petition. 9
Acting on petitioners' Omnibus Motion for Enforcement of Restraining Order and for Contempt, the Court issued a
Resolution on March 15, 1995, citing incumbent municipal mayor Anuncio C. Bustillo for contempt, ordering him to
pay the fine and to demolish the "blocktiendas" which were built in violation of the restraining order. 10
Former Mayor Anuncio C. Bustillo paid the fine and manifested that he lost in the May 8, 1995 election. 11 The
incumbent Mayor Leonardo Barrios, filed a Manifestation, Motion to Resolve "Urgent Motion for Immediate Dissolution of
the Temporary Restraining Order" and Memorandum on June 11, 1996 for the Municipality of Bunawan. 12
Petitioners contend that the Court of Appeals erred in upholding the legality of the condemnation proceedings initiated
by the municipality. According to petitioners, the expropriation was politically motivated and Resolution No. 43-89
was correctly disapproved by the Sangguniang Panlalawigan, there being other municipal properties available for the
purpose. Petitioners also pray that the former Mayor Anuncio C. Bustillo be ordered to pay damages for insisting on
the enforcement of a void municipal resolution.
The Court of Appeals declared that the Sangguniang Panlalawigan's reason for disapproving the resolution "could be
baseless, because it failed to point out which and where are those available lots.'" Respondent court also concluded
that since the Sangguniang Panlalawigan did not declare the municipal board's resolution as invalid, expropriation of
petitioners'
property
could
proceed. 13
The Court finds no merit in the petition and affirms the decision of the Court of Appeals.
Eminent domain, the power which the Municipality of Bunawan exercised in the instant case, is a fundamental State
power that is inseparable from sovereignty. 14 It is government's right to appropriate, in the nature of a compulsory sale to
the State, private property for public use or purpose. 15 Inherently possessed by the national legislature, the power of
eminent domain may be validly delegated to local governments, other public entities and public utilities. 16 For the taking
of private property by the government to be valid, the taking must be for public use and there must be just compensation. 17
The Municipality of Bunawan's power to exercise the right of eminent domain is not disputed as it is expressly
provided for in Batas Pambansa Blg. 337, the local Government Code 18 in force at the time expropriation proceedings
were initiated. Section 9 of said law states:
Sec. 9. Eminent Domain. A local government unit may, through its head and acting pursuant to a
resolution of its sanggunian, exercise the right of eminent domain and institute condemnation
proceedings for public use or purpose.
What petitioners question is the lack of authority of the municipality to exercise this right since the Sangguniang
Panlalawigan disapproved Resolution No. 43-89.
Section 153 of B.P. Blg. 337 provides:
Sec. 153. Sangguniang Panlalawigan Review. (1) Within thirty days after receiving copies of
approved ordinances, resolutions and executive orders promulgated by the municipal mayor, the
sangguniang panlalawigan shall examine the documents or transmit them to the provincial attorney,
or if there be none, to the provincial fiscal, who shall examine them promptly and inform the
sangguniang panlalawigan in writing of any defect or impropriety which he may discover therein and
make such comments or recommendations as shall appear to him proper.
(2) If the sangguniang panlalawigan shall find that any municipal ordinance, resolution or executive
order is beyond the power conferred upon the sangguniang bayan or the mayor, it shall declare such
ordinance, resolution or executive order invalid in whole or in part, entering its actions upon the
minutes and advising the proper municipal authorities thereof. The effect of such an action shall be to
annul the ordinance, resolution or executive order in question in whole or in part. The action of the
sangguniang panlalawigan shall be final.
xxx xxx xxx (Emphasis supplied.)

The Sangguniang Panlalawigan's disapproval of Municipal Resolution No. 43-89 is an infirm action which does not
render said resolution null and void. The law, as expressed in Section 153 of B.P. Blg. 337, grants the Sangguniang
Panlalawigan the power to declare a municipal resolution invalid on the sole ground that it is beyond the power of the
Sangguniang Bayan or the Mayor to issue. Although pertaining to a similar provision of law but different factual
milieu then obtaining, the Court's pronouncements in Velazco v. Blas, 19 where we cited significant early jurisprudence,
are applicable to the case at bar.
The only ground upon which a provincial board may declare any municipal resolution, ordinance, or
order invalid is when such resolution, ordinance, or order is "beyond the powers conferred upon the
council or president making the same." Absolutely no other ground is recognized by the law. A
strictly legal question is before the provincial board in its consideration of a municipal resolution,
ordinance, or order. The provincial (board's) disapproval of any resolution, ordinance, or order must
be premised specifically upon the fact that such resolution, ordinance, or order is outside the scope of
the legal powers conferred by law. If a provincial board passes these limits, it usurps the legislative
function of the municipal council or president. Such has been the consistent course of executive
authority. 20
Thus, the Sangguniang Panlalawigan was without the authority to disapprove Municipal Resolution No. 43-89 for the
Municipality of Bunawan clearly has the power to exercise the right of eminent domain and its Sangguniang Bayan
the capacity to promulgate said resolution, pursuant to the earlier-quoted Section 9 of B.P. Blg. 337. Perforce, it
follows that Resolution No. 43-89 is valid and binding and could be used as lawful authority to petition for the
condemnation of petitioners' property.
As regards the accusation of political oppression, it is alleged that Percival Moday incurred the ire of then Mayor
Anuncio C. Bustillo when he refused to support the latter's candidacy for mayor in previous elections. Petitioners
claim that then incumbent Mayor C. Bustillo used the expropriation to retaliate by expropriating their land even if
there were other properties belonging to the municipality and available for the purpose. Specifically, they allege that
the municipality owns a vacant seven-hectare property adjacent to petitioners' land, evidenced by a sketch plan. 21
The limitations on the power of eminent domain are that the use must be public, compensation must be made and due
process
of
law
must
be
observed. 22 The Supreme Court, taking cognizance of such issues as the adequacy of compensation, necessity of the
taking and the public use character or the purpose of the taking, 23 has ruled that the necessity of exercising eminent domain
must be genuine and of a public character. 24 Government may not capriciously choose what private property should be
taken.
After a careful study of the records of the case, however, we find no evidentiary support for petitioners' allegations.
The uncertified photocopy of the sketch plan does not conclusively prove that the municipality does own vacant land
adjacent to petitioners' property suited to the purpose of the expropriation. In the questioned decision, respondent
appellate court similarly held that the pleadings and documents on record have not pointed out any of respondent
municipality's "other available properties available for the same purpose." 25 The accusations of political reprisal are
likewise unsupported by competent evidence. Consequently, the Court holds that petitioners' demand that the former
municipal mayor be personally liable for damages is without basis.
WHEREFORE, the instant petition is hereby DENIED. The questioned Decision and Resolution of the Court of
Appeals in the case of "Percival Moday." et al. v. Municipality of Bunawan, et al." (CA G.R. SP No. 26712) are
AFFIRMED. The Temporary Restraining Order issued by the Court on December 8, 1993 is LIFTED.
SO ORDERED.
Regalado, Puno, Mendoza and Torres, Jr., JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18841

January 27, 1969

REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,

vs.
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, defendant-appellant.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A. Torres and Solicitor Camilo
D. Quiason for plaintiff-appellant.
Ponce Enrile, Siguion Reyna, Montecillo and Belo for defendant-appellant.
REYES, J.B.L., J.:
Direct appeals, upon a joint record on appeal, by both the plaintiff and the defendant from the dismissal, after
hearing, by the Court of First Instance of Manila, in its Civil Case No. 35805, of their respective complaint and
counterclaims, but making permanent a preliminary mandatory injunction theretofore issued against the defendant on
the interconnection of telephone facilities owned and operated by said parties.
The plaintiff, Republic of the Philippines, is a political entity exercising governmental powers through its branches
and instrumentalities, one of which is the Bureau of Telecommunications. That office was created on 1 July 1947,
under Executive Order No. 94, with the following powers and duties, in addition to certain powers and duties formerly
vested in the Director of Posts:
1awphil.t

SEC. 79. The Bureau of Telecommunications shall exercise the following powers and duties:
(a) To operate and maintain existing wire-telegraph and radio-telegraph offices, stations, and facilities, and
those to be established to restore the pre-war telecommunication service under the Bureau of Posts, as well as
such additional offices or stations as may hereafter be established to provide telecommunication service in
places requiring such service;
(b) To investigate, consolidate, negotiate for, operate and maintain wire-telephone or radio telephone
communication service throughout the Philippines by utilizing such existing facilities in cities, towns, and
provinces as may be found feasible and under such terms and conditions or arrangements with the present
owners or operators thereof as may be agreed upon to the satisfaction of all concerned;
(c) To prescribe, subject to approval by the Department Head, equitable rates of charges for messages handled
by the system and/or for time calls and other services that may be rendered by said system;
(d) To establish and maintain coastal stations to serve ships at sea or aircrafts and, when public interest so
requires, to engage in the international telecommunication service in agreement with other countries desiring
to establish such service with the Republic of the Philippines; and
(e) To abide by all existing rules and regulations prescribed by the International Telecommunication
Convention relative to the accounting, disposition and exchange of messages handled in the international
service, and those that may hereafter be promulgated by said convention and adhered to by the Government
of the Republic of the Philippines. 1
The defendant, Philippine Long Distance Telephone Company (PLDT for short), is a public service corporation
holding a legislative franchise, Act 3426, as amended by Commonwealth Act 407, to install, operate and maintain a
telephone system throughout the Philippines and to carry on the business of electrical transmission of messages within
the Philippines and between the Philippines and the telephone systems of other countries. 2 The RCA
Communications, Inc., (which is not a party to the present case but has contractual relations with the parties) is an
American corporation authorized to transact business in the Philippines and is the grantee, by assignment, of a
legislative franchise to operate a domestic station for the reception and transmission of long distance wireless
messages (Act 2178) and to operate broadcasting and radio-telephone and radio-telegraphic communications services
(Act 3180). 3
Sometime in 1933, the defendant, PLDT, and the RCA Communications, Inc., entered into an agreement whereby
telephone messages, coming from the United States and received by RCA's domestic station, could automatically be
transferred to the lines of PLDT; and vice-versa, for calls collected by the PLDT for transmission from the Philippines
to the United States. The contracting parties agreed to divide the tolls, as follows: 25% to PLDT and 75% to RCA.
The sharing was amended in 1941 to 30% for PLDT and 70% for RCA, and again amended in 1947 to a 50-50 basis.
The arrangement was later extended to radio-telephone messages to and from European and Asiatic countries. Their
contract contained a stipulation that either party could terminate it on a 24-month notice to the other. 4 On 2 February
1956, PLDT gave notice to RCA to terminate their contract on 2 February 1958. 5

Soon after its creation in 1947, the Bureau of Telecommunications set up its own Government Telephone System by
utilizing its own appropriation and equipment and by renting trunk lines of the PLDT to enable government offices to
call private parties. 6 Its application for the use of these trunk lines was in the usual form of applications for telephone
service, containing a statement, above the signature of the applicant, that the latter will abide by the rules and
regulations of the PLDT which are on file with the Public Service Commission. 7 One of the many rules prohibits the
public use of the service furnished the telephone subscriber for his private use. 8 The Bureau has extended its services
to the general public since 1948, 9 using the same trunk lines owned by, and rented from, the PLDT, and prescribing
its (the Bureau's) own schedule of rates. 10 Through these trunk lines, a Government Telephone System (GTS)
subscriber could make a call to a PLDT subscriber in the same way that the latter could make a call to the former.
On 5 March 1958, the plaintiff, through the Director of Telecommunications, entered into an agreement with RCA
Communications, Inc., for a joint overseas telephone service whereby the Bureau would convey radio-telephone
overseas calls received by RCA's station to and from local residents. 11 Actually, they inaugurated this joint operation
on 2 February 1958, under a "provisional" agreement. 12
On 7 April 1958, the defendant Philippine Long Distance Telephone Company, complained to the Bureau of
Telecommunications that said bureau was violating the conditions under which their Private Branch Exchange (PBX)
is inter-connected with the PLDT's facilities, referring to the rented trunk lines, for the Bureau had used the trunk lines
not only for the use of government offices but even to serve private persons or the general public, in competition with
the business of the PLDT; and gave notice that if said violations were not stopped by midnight of 12 April 1958, the
PLDT would sever the telephone connections. 13 When the PLDT received no reply, it disconnected the trunk lines
being rented by the Bureau at midnight on 12 April 1958. 14 The result was the isolation of the Philippines, on
telephone services, from the rest of the world, except the United States. 15
At that time, the Bureau was maintaining 5,000 telephones and had 5,000 pending applications for telephone
connection. 16 The PLDT was also maintaining 60,000 telephones and had also 20,000 pending
applications. 17Through the years, neither of them has been able to fill up the demand for telephone service.
The Bureau of Telecommunications had proposed to the PLDT on 8 January 1958 that both enter into an
interconnecting agreement, with the government paying (on a call basis) for all calls passing through the
interconnecting facilities from the Government Telephone System to the PLDT. 18 The PLDT replied that it was
willing to enter into an agreement on overseas telephone service to Europe and Asian countries provided that the
Bureau would submit to the jurisdiction and regulations of the Public Service Commission and in consideration of 37
1/2% of the gross revenues. 19 In its memorandum in lieu of oral argument in this Court dated 9 February 1964, on
page 8, the defendant reduced its offer to 33 1/3 % (1/3) as its share in the overseas telephone service. The proposals
were not accepted by either party.
On 12 April 1958, plaintiff Republic commenced suit against the defendant, Philippine Long Distance Telephone
Company, in the Court of First Instance of Manila (Civil Case No. 35805), praying in its complaint for judgment
commanding the PLDT to execute a contract with plaintiff, through the Bureau, for the use of the facilities of
defendant's telephone system throughout the Philippines under such terms and conditions as the court might consider
reasonable, and for a writ of preliminary injunction against the defendant company to restrain the severance of the
existing telephone connections and/or restore those severed.
Acting on the application of the plaintiff, and on the ground that the severance of telephone connections by the
defendant company would isolate the Philippines from other countries, the court a quo, on 14 April 1958, issued an
order for the defendant:
(1) to forthwith reconnect and restore the seventy-eight (78) trunk lines that it has disconnected between the
facilities of the Government Telephone System, including its overseas telephone services, and the facilities of
defendant; (2) to refrain from carrying into effect its threat to sever the existing telephone communication
between the Bureau of Telecommunications and defendant, and not to make connection over its telephone
system of telephone calls coming to the Philippines from foreign countries through the said Bureau's
telephone facilities and the radio facilities of RCA Communications, Inc.; and (3) to accept and connect
through its telephone system all such telephone calls coming to the Philippines from foreign countries until
further order of this Court.
On 28 April 1958, the defendant company filed its answer, with counterclaims.

It denied any obligation on its part to execute a contrary of services with the Bureau of Telecommunications;
contested the jurisdiction of the Court of First Instance to compel it to enter into interconnecting agreements, and
averred that it was justified to disconnect the trunk lines heretofore leased to the Bureau of Telecommunications under
the existing agreement because its facilities were being used in fraud of its rights. PLDT further claimed that the
Bureau was engaging in commercial telephone operations in excess of authority, in competition with, and to the
prejudice of, the PLDT, using defendants own telephone poles, without proper accounting of revenues.
After trial, the lower court rendered judgment that it could not compel the PLDT to enter into an agreement with the
Bureau because the parties were not in agreement; that under Executive Order 94, establishing the Bureau of
Telecommunications, said Bureau was not limited to servicing government offices alone, nor was there any in the
contract of lease of the trunk lines, since the PLDT knew, or ought to have known, at the time that their use by the
Bureau was to be public throughout the Islands, hence the Bureau was neither guilty of fraud, abuse, or misuse of the
poles of the PLDT; and, in view of serious public prejudice that would result from the disconnection of the trunk lines,
declared the preliminary injunction permanent, although it dismissed both the complaint and the counterclaims.
Both parties appealed.
Taking up first the appeal of the Republic, the latter complains of the action of the trial court in dismissing the part of
its complaint seeking to compel the defendant to enter into an interconnecting contract with it, because the parties
could not agree on the terms and conditions of the interconnection, and of its refusal to fix the terms and conditions
therefor.
We agree with the court below that parties can not be coerced to enter into a contract where no agreement is had
between them as to the principal terms and conditions of the contract. Freedom to stipulate such terms and conditions
is of the essence of our contractual system, and by express provision of the statute, a contract may be annulled if
tainted by violence, intimidation, or undue influence (Articles 1306, 1336, 1337, Civil Code of the Philippines). But
the court a quo has apparently overlooked that while the Republic may not compel the PLDT to celebrate a contract
with it, the Republic may, in the exercise of the sovereign power of eminent domain, require the telephone company to
permit interconnection of the government telephone system and that of the PLDT, as the needs of the government
service may require, subject to the payment of just compensation to be determined by the court. Nominally, of course,
the power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated
property; but no cogent reason appears why the said power may not be availed of to impose only a burden upon the
owner of condemned property, without loss of title and possession. It is unquestionable that real property may, through
expropriation, be subjected to an easement of right of way. The use of the PLDT's lines and services to allow interservice connection between both telephone systems is not much different. In either case private property is subjected
to a burden for public use and benefit. If, under section 6, Article XIII, of the Constitution, the State may, in the
interest of national welfare, transfer utilities to public ownership upon payment of just compensation, there is no
reason why the State may not require a public utility to render services in the general interest, provided just
compensation is paid therefor. Ultimately, the beneficiary of the interconnecting service would be the users of both
telephone systems, so that the condemnation would be for public use.
The Bureau of Telecommunications, under section 78 (b) of Executive Order No. 94, may operate and maintain wire
telephone or radio telephone communications throughout the Philippines by utilizing existing facilities in cities,
towns, and provinces under such terms and conditions or arrangement with present owners or operators as may be
agreed upon to the satisfaction of all concerned; but there is nothing in this section that would exclude resort to
condemnation proceedings where unreasonable or unjust terms and conditions are exacted, to the extent of crippling
or seriously hampering the operations of said Bureau.
A perusal of the complaint shows that the Republic's cause of action is predicated upon the radio telephonic isolation
of the Bureau's facilities from the outside world if the severance of interconnection were to be carried out by the
PLDT, thereby preventing the Bureau of Telecommunications from properly discharging its functions, to the prejudice
of the general public. Save for the prayer to compel the PLDT to enter into a contract (and the prayer is no essential
part of the pleading), the averments make out a case for compulsory rendering of inter-connecting services by the
telephone company upon such terms and conditions as the court may determine to be just. And since the lower court
found that both parties "are practically at one that defendant (PLDT) is entitled to reasonable compensation from
plaintiff for the reasonable use of the former's telephone facilities" (Decision, Record on Appeal, page 224), the lower
court should have proceeded to treat the case as one of condemnation of such services independently of contract and
proceeded to determine the just and reasonable compensation for the same, instead of dismissing the petition.

This view we have taken of the true nature of the Republic's petition necessarily results in overruling the plea of
defendant-appellant PLDT that the court of first instance had no jurisdiction to entertain the petition and that the
proper forum for the action was the Public Service Commission. That body, under the law, has no authority to pass
upon actions for the taking of private property under the sovereign right of eminent domain. Furthermore, while the
defendant telephone company is a public utility corporation whose franchise, equipment and other properties are
under the jurisdiction, supervision and control of the Public Service Commission (Sec. 13, Public Service Act), yet the
plaintiff's telecommunications network is a public service owned by the Republic and operated by an instrumentality
of the National Government, hence exempt, under Section 14 of the Public Service Act, from such jurisdiction,
supervision and control. The Bureau of Telecommunications was created in pursuance of a state policy reorganizing
the government offices
to meet the exigencies attendant upon the establishment of the free and independent Government of the
Republic of the Philippines, and for the purpose of promoting simplicity, economy and efficiency in its
operation (Section 1, Republic Act No. 51)
and the determination of state policy is not vested in the Commission (Utilities Com. vs. Bartonville Bus Line, 290
Ill. 574; 124 N.E. 373).
Defendant PLDT, as appellant, contends that the court below was in error in not holding that the Bureau of
Telecommunications was not empowered to engage in commercial telephone business, and in ruling that said
defendant was not justified in disconnecting the telephone trunk lines it had previously leased to the Bureau. We find
that the court a quo ruled correctly in rejecting both assertions.
Executive Order No. 94, Series of 1947, reorganizing the Bureau of Telecommunications, expressly empowered the
latter in its Section 79, subsection (b), to "negotiate for, operate and maintain wire telephone or radio telephone
communication service throughout the Philippines", and, in subsection (c), "to prescribe, subject to approval by the
Department Head, equitable rates of charges for messages handled by the system and/or for time calls and other
services that may be rendered by the system". Nothing in these provisions limits the Bureau to non-commercial
activities or prevents it from serving the general public. It may be that in its original prospectuses the Bureau officials
had stated that the service would be limited to government offices: but such limitations could not block future
expansion of the system, as authorized by the terms of the Executive Order, nor could the officials of the Bureau bind
the Government not to engage in services that are authorized by law. It is a well-known rule that erroneous application
and enforcement of the law by public officers do not block subsequent correct application of the statute (PLDT vs.
Collector of Internal Revenue, 90 Phil. 676), and that the Government is never estopped by mistake or error on the
part of its agents (Pineda vs. Court of First Instance of Tayabas, 52 Phil. 803, 807; Benguet Consolidated Mining Co.
vs. Pineda, 98 Phil. 711, 724).
The theses that the Bureau's commercial services constituted unfair competition, and that the Bureau was guilty of
fraud and abuse under its contract, are, likewise, untenable.
First, the competition is merely hypothetical, the demand for telephone service being very much more than the
supposed competitors can supply. As previously noted, the PLDT had 20,000 pending applications at the time, and the
Bureau had another 5,000. The telephone company's inability to meet the demands for service are notorious even now.
Second, the charter of the defendant expressly provides:
SEC. 14. The rights herein granted shall not be exclusive, and the rights and power to grant to any
corporation, association or person other than the grantee franchise for the telephone or electrical transmission
of message or signals shall not be impaired or affected by the granting of this franchise: (Act 3436)
And third, as the trial court correctly stated, "when the Bureau of Telecommunications subscribed to the trunk lines,
defendant knew or should have known that their use by the subscriber was more or less public and all embracing in
nature, that is, throughout the Philippines, if not abroad" (Decision, Record on Appeal, page 216).
The acceptance by the defendant of the payment of rentals, despite its knowledge that the plaintiff had extended the
use of the trunk lines to commercial purposes, continuously since 1948, implies assent by the defendant to such
extended use. Since this relationship has been maintained for a long time and the public has patronized both telephone
systems, and their interconnection is to the public convenience, it is too late for the defendant to claim misuse of its
facilities, and it is not now at liberty to unilaterally sever the physical connection of the trunk lines.

..., but there is high authority for the position that, when such physical connection has been voluntarily
made, under a fair and workable arrangement and guaranteed by contract and the continuous line has come to
be patronized and established as a great public convenience, such connection shall not in breach of the
agreement be severed by one of the parties. In that case, the public is held to have such an interest in the
arrangement that its rights must receive due consideration. This position finds approval in State ex rel. vs.
Cadwaller, 172 Ind. 619, 636, 87 N.E. 650, and is stated in the elaborate and learned opinion of Chief Justice
Myers as follows: "Such physical connection cannot be required as of right, but if such connection is
voluntarily made by contract, as is here alleged to be the case, so that the public acquires an interest in its
continuance, the act of the parties in making such connection is equivalent to a declaration of a purpose to
waive the primary right of independence, and it imposes upon the property such a public status that it may not
be disregarded" citing Mahan v. Mich. Tel. Co., 132 Mich. 242, 93 N.W. 629, and the reasons upon which
it is in part made to rest are referred to in the same opinion, as follows: "Where private property is by the
consent of the owner invested with a public interest or privilege for the benefit of the public, the owner can no
longer deal with it as private property only, but must hold it subject to the right of the public in the exercise of
that public interest or privilege conferred for their benefit." Allnut v. Inglis (1810) 12 East, 527. The doctrine
of this early case is the acknowledged law. (Clinton-Dunn Tel. Co. v. Carolina Tel. & Tel. Co., 74 S.E. 636,
638).
It is clear that the main reason for the objection of the PLDT lies in the fact that said appellant did not expect that the
Bureau's telephone system would expand with such rapidity as it has done; but this expansion is no ground for the
discontinuance of the service agreed upon.
The last issue urged by the PLDT as appellant is its right to compensation for the use of its poles for bearing
telephone wires of the Bureau of Telecommunications. Admitting that section 19 of the PLDT charter reserves to the
Government
the privilege without compensation of using the poles of the grantee to attach one ten-pin cross-arm, and to
install, maintain and operate wires of its telegraph system thereon; Provided, however, That the Bureau of
Posts shall have the right to place additional cross-arms and wires on the poles of the grantee by paying a
compensation, the rate of which is to be agreed upon by the Director of Posts and the grantee;
the defendant counterclaimed for P8,772.00 for the use of its poles by the plaintiff, contending that what was
allowed free use, under the aforequoted provision, was one ten-pin cross-arm attachment and only for plaintiff's
telegraph system, not for its telephone system; that said section could not refer to the plaintiff's telephone system,
because it did not have such telephone system when defendant acquired its franchise. The implication of the argument
is that plaintiff has to pay for the use of defendant's poles if such use is for plaintiff's telephone system and has to pay
also if it attaches more than one (1) ten-pin cross-arm for telegraphic purposes.
As there is no proof that the telephone wires strain the poles of the PLDT more than the telegraph wires, nor that
they cause more damage than the wires of the telegraph system, or that the Government has attached to the poles more
than one ten-pin cross-arm as permitted by the PLDT charter, we see no point in this assignment of error. So long as
the burden to be borne by the PLDT poles is not increased, we see no reason why the reservation in favor of the
telegraph wires of the government should not be extended to its telephone lines, any time that the government decided
to engage also in this kind of communication.
In the ultimate analysis, the true objection of the PLDT to continue the link between its network and that of the
Government is that the latter competes "parasitically" (sic) with its own telephone services. Considering, however,
that the PLDT franchise is non-exclusive; that it is well-known that defendant PLDT is unable to adequately cope with
the current demands for telephone service, as shown by the number of pending applications therefor; and that the
PLDT's right to just compensation for the services rendered to the Government telephone system and its users is
herein recognized and preserved, the objections of defendant-appellant are without merit. To uphold the PLDT's
contention is to subordinate the needs of the general public to the right of the PLDT to derive profit from the future
expansion of its services under its non-exclusive franchise.
WHEREFORE, the decision of the Court of First Instance, now under appeal, is affirmed, except in so far as it
dismisses the petition of the Republic of the Philippines to compel the Philippine Long Distance Telephone Company
to continue servicing the Government telephone system upon such terms, and for a compensation, that the trial court
may determine to be just, including the period elapsed from the filing of the original complaint or petition. And for

this purpose, the records are ordered returned to the court of origin for further hearings and other proceedings not
inconsistent with this opinion. No costs.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando, Capistrano, Teehankee and Barredo, JJ.,
concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-69002 June 30, 1988
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
AMANDA LAT VDA. DE CASTILLO, FLORENCIO T. CASTILLO, SOLEDAD LOTA CASTILLO,
CARLOS L. CASTILLO, NIEVES KATIGBAK CASTILLO, MARIANO L. CASTILLO, HIPOLITA
DYTIAPCO CASTILLO, AIDA CASTILLO HERRERA, HERMITO HERRERA, JOSE L. CASTILLO,
LILIA MACEDA CASTILLO, TERESITA L. CASTILLO, REGISTER OF DEEDS OF BATANGAS and THE
INTERMEDIATE APPELLATE COURT,respondents.
Castro, Nardo, Quintanilla, Gonzales & Macatangay Law Office for respondents.

PARAS, J.:
This is a petition for review on certiorari of the April 26, 1984 Decision of the then Intermediate Appellate
Court *reversing the February 6, 1976 Decision of the then Court of First Instance of Batangas, Branch VI, in Civil Case No. 2044.
The antecedental facts of this case, as found by the then Intermediate Appellate Court, are as follows:
Sometime in 1951, the late Modesto Castillo applied for the registration of two parcels of land, Lots 1
and 2, located in Banadero, Tanauan, Batangas, described in Plan Psu-119166, with a total area of
39,755 square meters. In a decision dated August 31, 1951, the said Modesto Castillo, married to
Amanda Lat, was declared the true and absolute owner of the land with the improvements thereon,
for which Original Certificate of Title No. 0-665 was, issued to him by the Register of Deeds at
Batangas, Batangas, on February 7, 1952. By virtue of an instrument dated March 18, 1960, the said
Lots 1 and 2 covered by Original Certificate of Title No. 0-665, together with Lot No. 12374 covered
by Transfer Certificate of Title No. 3254-A and Lot No. 12377 covered by Transfer Certificate of
Title No. 3251-A, were consolidated and sub-divided into Lots 1 to 9 under Pcs-1046. After the death
of Modesto Castillo, or on August 31, 1960, Amanda Lat Vda. de Castillo, et al., executed a deed of
partition and assumption of mortgage in favor of Florencio L. Castillo, et al., as a result of which
Original Certificate of Title No. D-665 was cancelled, and in lieu thereof, new transfer cerfificates of
title were issued to Florencio Castillo, et al., to wit: Transfer Certificate of Title No. 21703 (Lot 4)
(and) Transfer Certificate of Title No. 21704 to Florencio Castillo (Lot 5); Transfer Certificate of
Title No. T-21708 to Carlos L. Castillo (Lot 7); Transfer Certificate of Title No. T-21712 to Mariano
L. Castillo (Lot 6); Transfer Certificate of Title No. T-21713 to Jose L. Castillo (Lot 9); Transfer
Certificate of Title No. T-21718 to Aida C. Herrera (Lot 2); and Transfer Certificate of Title No. T21727 to Teresita L. Castillo (Lot 8).
The Republic of the Philippines filed Civil Case No. 2044 with the lower court for the annulment of
the certificates of title issued to defendants Amanda Lat Vda. de Castillo, et al., as heirs/successors of
Modesto Castillo, and for the reversion of the lands covered thereby (Lots 1 and 2, Psu-119166) to
the State. It was alleged that said lands had always formed part of the Taal Lake, washed and

inundated by the waters thereof, and being of public ownership, it could not be the subject of
registration as private property. Appellants herein, defendants below, alleged in their answer that the
Government's action was already barred by the decision of the registration court; that the action has
prescribed; and that the government was estopped from questioning the ownership and possession of
appellants.
After trial, the then Court of First Instance of Batangas, Branch VI, presided over by Honorable Benjamin Relova, in a
Decision dated February 6, 1976 (Record on Appeal, pp. 62-69), ruled in favor of herein petitioner Republic of the
Philippines. The decretal portion of the said decision, reads:
WHEREFORE, the Register of Deeds of Batangas is hereby ordered to cancel Original Certificate of
Title No. 0-665 in the name of Modesto Castillo and the subsequent Transfer of Certificates of Title
issued over the property in the names of the defendants. Lots Nos. 1 and 2 of Plan Psu-19166 are
hereby declared public lands belonging to the state. Without pronouncement as to costs.
The Court of Appeals, on appeal, in a Decision promulgated on April 26,1984, reversed and set aside the appealed
decision, and dismissed the complaint (Record, pp. 31-41). Herein petitioner filed a Motion for Reconsideration
(Record, pp. 42-51), but the same was denied in a Resolution promulgated on October 12,1984 (Record, p. 52).
Hence, the instant petition.
The sole issue raised in this case is whether or not the decision of the Land Registration Court involving shore lands
constitutes res adjudicata.
There is no question that one of the requisites of res judicata is that the court rendering the final judgment must have
jurisdiction over the subject matter (Ramos v. Pablo, 146 SCRA 24 [1986]; that shores are properties of the public
domain intended for public use (Article 420, Civil Code) and, therefore, not registrable. Thus, it has long been settled
that portions of the foreshore or of the territorial waters and beaches cannot be registered. Their inclusion in a
certificate of title does not convert the same into properties of private ownership or confer title upon the registrant
(Republic v. Ayala y Cia, 14 SCRA, 259 [1965], citing the cases of Dizon, et al. v. Bayona, et al., 98 Phil. 943; and
Dizon, et al. v. Rodriguez, et al., 13 SCRA 704).
But an important bone of contention is the nature of the lands involved in this case.
Petitioner contends "that "Lots 1 and 2, PSU-119166 had always formed part of the Taal Lake, washed and inundated
by the waters thereof. Consequently, the same were not subject to registration, being outside the commerce of men;
and that since the lots in litigation are of public domain (Art. 502), par. 4 Civil Code) the registration court (of 1951)
did not have jurisdiction to adjudicate said lands as private property, hence, res judicata does not apply. (Rollo, pp.
37-38).
The Government presented both oral and documentary evidence.
As summarized by the Intermediate Appelate Court (now Court of Appeals), the testimonies of the witnesses for the
petitioner are as follows:
1. Rosendo Arcenas, a Geodetic Engineer connected with the Bureau of Lands since 1961, testified to
the effect that Lots 1 and 2, Psu-119166, which are the lots in question, adjoin the cadastral survey of
Tanauan, Batangas (Cad. 168); that the original boundary of the original cadastral survey was
foreshore land as indicated on the plan; that the cadastral survey of Tanauan was executed sometime
in 1923; that the first survey executed of the land after 1923 was the one executed in 1948 under Plan
Psu-119166 that in the relocation survey of the disputed lots in 1962 under SWO-40601, said lots
were annotated on the plan as claimed by the Republic of the Philippines in the same manner that it
was so annotated in Plan Psu-119166; thus showing that the Government was the only claimant of the
land during the survey in 1948; that during the relocation survey made in 1962, old points cannot be
Identified or located because they were under water by about forty centimeters; that during the ocular
inspection of the premises on November 23, 1970, he found that 2 monuments of the lots in question
were washed out by the waters of the Baloyboy Creek; that he also found duck pens along the lots in
question; that there are houses in the premises as well as some camotes and bananas; and that he
found also some shells ('suso') along the banks of the Taal lake (Tsn, Nov. 16, 1970, pp. 13-21; Feb.
16, 1971, pp. 4-36).
2. Braulio Almendral testified to the effect that he is a resident of Tanauan, Batangas, near the Taal

lake; that like himself there are other occupants of the land among whom are Atanacio Tironas,
Gavino Mendoza, Juliano Tirones, Agapito Llarena, etc.; that it was they who filled up the area to
make it habitable; that they filled up the area with shells and sand; that their occupation is duck
raising; and that the Castillos never stayed in or occupied the premises (Tsn, Nov. 16, 1970, pp. 3250).
3. Arsenio Ibay, a Geodetic Engineer connected with the Bureau of Lands since 1968, also testified to
the effect that in accordance with the cadastral plan of Tanauan, the only private claim of Sixto
Castillo referred to Lots 1006 to 1008; that the Castillos never asserted any private claim to the lots in
question during the cadastral survey;' that in the preparation of plan Psu-119166, Lots 12374 and
12377 were made as reference to conform to previously approved plans; that lot 12374 is a portion of
cadastral lot 10107, SWO-86738 while Lot 22377 is a portion of Lot 10108 of the same plan (Tsn,
Nov. 25, 1970, pp. 115-137).
4. Jose Isidro, a Land Investigator of the Bureau of Lands, testified to the effect that pursuant to the
order of the Director of Lands, he, together with Engineer Rufino Santiago and the barrio captain of
Tanauan, Batangas, conducted an investigation of the land in question; that he submitted a report of
investigation, dated October 19, 1970 (Exh. H-1); that portions of the lot in question were covered by
public land applications filed by the occupants thereof; that Engineer Santiago also submitted a report
(Exh. H-8); that he had notified Dr. Mariano Castillo before conducting the investigation (Tsn, Nov.
25,1970, pp. 137-162).
5. Rufino Santiago, another Geodetic Engineer connected with the Bureau of Lands, testified to the
effect that on October 19,1970, he submitted a report of investigation regarding the land in question;
that he noted on the plan Exhibit H-9 the areas on which the houses of Severo Alcantara and others
were built; that he found that the land was planted to coconuts which are about 15 years old; that the
land is likewise improved with rice paddies; that the occupants thereof are duck raisers; that the area
had been elevated because of the waste matters and duck feeds that have accumulated on the ground
through the years (Tsn, Nov. 26,1970, pp. 163-196).
6. Pablo Tapia, Barrio Captain of Tanauan, Batangas, since 1957, testified to the effect that the actual
occupants of Lots I and 2 are Atanacio Tirones,tc.; that during the war the water line reached up to a
point marked Exhibit A-9 and at present the water has receded to a point up to Exhibit A-12; that the
reasons why the waters of Taal lake have receded to the present level is because of the fillings made
by the people living in Lots 1 and 2; that there are several duck pens all over the place; that the
composition of the soil is a mixture of mud and duck feeds; that improvements consist of bananas,
bamboos and palay; that the shoreline is not even in shape because of the Baloyboy Creek; that the
people in the area never came to know about the registration case in which the lots in question were
registered; that the people living in the area, even without any government aid, helped one another in
the construction of irrigated rice paddies; that he helped them file their public land applications for
the portions occupied by them; that the Castillos have never been in possession of the premises; that
the people depend upon duck raising as their means of their livelihood; that Lots 1 and 2 were yet
inexistent during the Japanese occupation; and that the people started improving the area only during
liberation and began to build their houses thereon. (Tsn, Nov. 26,1970, pp. 197-234).
Among the exhibits formally offered by the Government are: the Original Plan of Tanauan, Batangas, particularly the
Banader Estate, the Original Plan of PSU-119166, Relocation Verification Survey Plan, maps, and reports of Geodetic
Engineers, all showing the original shoreline of the disputed areas and the fact that the properties in question were
under water at the time and are still under water especially during the rainy season (Hearing, March 17,1971, TSN, pp.
46-47).
On the other hand, private respondents maintain that Lots 1 and 2 have always been in the possession of the Castillo
family for more than 76 years and that their possession was public, peaceful, continuous, and adverse against the
whole world and that said lots were not titled during the cadastral survey of Tanauan, because they were still under
water as a result of the eruption of Taal Volcano on May 5, 1911 and that the inundation of the land in question by the
waters of Taal Lake was merely accidental and does not affect private respondents' ownership and possession thereof
pursuant to Article 778 of the Law of Waters. They finally insisted that this issue of facts had been squarely raised at
the hearing of the land registration case and, therefore, res judicata(Record on Appeal, pp. 63-64). They submitted
oral and documentary evidence in support of their claim.

Also summarized by respondent Appellate Court, the testimonies of the witnesses of private respondents are as
follows:
1. Silvano Reano, testified to the effect that he was the overseer of the property of the late Modesto
Castillo located at Banadero,Tanauan, Batangas since 1944 to 1965; that he also knows Lots 1 and 2,
the parcels of land in question, since he was managing said property; that the occupants of said Lots 1
and 2 were engaged in duck raising; that those occupants were paying the Castillos certain amount of
money because their animals used to get inside the lots in question; that he was present during the
survey of the land in 1948; and that aside from the duck pens which are built in the premises, the land
is planted to rice (Tsn, April 14, 1971, pp. 62-88).
2. Dr. Mariano Castillo, testified to the effect that the late Modesto Castillo was a government official
who held high positions in the Government; and that upon his death the land was subdivided among
his legal heirs. (Appellee's Brief, pp. 4-9).
As above-stated, the trial court decided the case in favor of the government but the decision was reversed on appeal by
the Court of Appeals.
A careful study of the merits of their varied contentions readily shows that the evidence for the government has far
outweighed the evidence for the private respondents. Otherwise stated, it has been satisfactorily established as found
by the trial court, that the properties in question were the shorelands of Taal Lake during the cadastral survey of 1923.
Explaining the first survey of 1923, which showed that Lots 1 and 2 are parts of the Taal Lake, Engineer Rosendo
Arcenas testified as follows:
ATTY. AGCAOILI:
Q Now, you mentioned Engineer that a subject matter of that plan which appears to
be Lots 1 and 2 are adjoining cadastral lots of the Tanauan Cadastre, now, will you
please state to the Court what is the basis of that statement of yours?
A The basis of that statement is the plan itself, because there is here an annotation
that the boundary on the northeastern side is Tanauan Cadastre 168 which indicates
that the boundary of the original cadastral survey of Tanauan Cadastre way back in
the year 1923 adjoins a foreshore land which is also indicated in this plan as
foreshore lands of Taal lake, sir.
xxx xxx xxx
Q Now, on this plan Exhibit "A-2", there are two lots indicated namely, Lots 12374
and 12377, what do these lots represent?
A This is the cadastral lot executed in favor of a certain Modesto Castillo that
corresponds to Lots 12374 and another Lot 12377, sir.
Q At the time this survey plan Psu-119166 and marked as Exhibit "A-2" was
executed in 1948, were these lots 1 and 2 already in existence as part of the cadastral
survey?
A No, sir, because there is already a foreshore boundary.
Q Do I understand from you Mr. Witness at the time of the survey of this land these
two lots form part of this portion?
A Yes, sir.
Q When again was the cadastral survey of Tanauan, Batangas, executed if you
know?
A In the year 1923, sir. (Hearing of Nov. 16, 1970, TSN pp. 15-17).
Such fact was further verified in the Verification-Relocation Survey of 1948 by Engineer Arcenas who conducted said
survey himself and reported the following:
That as per original plan Psu-119166, it appears that Lot 1 and Lot 2, Psu-119166 surveyed and

approved in the name of Modesto Castillo is a portion of Taal Lake and as such it appears to be under
water during the survey of cadastral Lot No. 12374 and Lot No. 12377, which was surveyed and
approved in the name of Modesto Castillo under Cad. 168. To support this theory is the annotation
appearing and printed along lines 2-3-4-5 of Lot 1, Psu-119166 and along lines 4-5-6 of Lot 2, Psu119166 which notations clearly indicates that such boundary of property was a former shorelines of
Taal Lake, in other words, it was the extent of cultivation being the shorelines and the rest of the area
going to the southwestern direction are already covered by water level.
Another theory to bolster and support this Idea is the actual location now in the verificationrelocation survey of a known geographic point were Barrio Boundary Monument (BBM N. 22) is
under water level quite for sometimes as evidence by earthworks (collection of mud) that amount
over its surface by eighty (80) centimeters below the ground, see notation appearing on verificationrelocation plan previously submitted. (Re-Verification-Relocation Survey Exhibits, pp. 64-65).
Said surveys were further confirmed by the testimonies of witnesses to the effect that from 1950 to 1969, during rainy
season, the water of Taal lake even went beyond the questioned lots; and that the water, which was about one (1) foot,
stayed up to more or less two (2) to three (3) months (Testimonies of Braulio Almendral and Anastacio Tirones both
residents of Banadero, Tanauan, Batangas (Hearing of Nov. 16, 1970, TSN, pp. 41-42 and Hearing of Nov. 23, 1970,
TSN, pp. 93, 98-99, respectively). In the Relocation Survey of 1962, there were no definite boundary or area of Lots 1
and 2 because a certain point is existing which was under water by 40 centimeters (Testimony of Engineer Arcena,
Hearing of Nov. 16,1970, TSN, p. 20).
Lakeshore land or lands adjacent to the lake, like the lands in question must be differentiated from foreshore land or
that part of the land adjacent to the sea which is alternately covered and left dry by the ordinary flow of the tides
(Castillo, Law on Natural Resources, Fifth Edition, 1954, p. 67).
Such distinction draws importance from the fact that accretions on the bank of a lake, like Laguna de Bay, belong to
the owners of the estate to which they have been added (Gov't. v. Colegio de San Jose, 53 Phil. 423) while accretion
on a sea bank still belongs to the public domain, and is not available for private ownership until formally declared by
the government to be no longer needed for public use (Ignacio v. Director of Lands, 108 Phil. 335 [1960]).
But said distinction will not help private respondents because there is no accretion shown to exist in the case at bar.
On the contrary, it was established that the occupants of the lots who were engaged in duck raising filled up the area
with shells and sand to make it habitable.
The defense of long possession is likewise not available in this case because, as already ruled by this Court, mere
possession of land does not by itself automatically divest the land of its public character (Cuevas v. Pineda, 143 SCRA
674 [1968]).
PREMISES CONSIDERED, the April 26,1984 Decision of the then Intermediate Appellate Court is hereby SET
ASIDE and REVERSED and the February 6,1976 Decision of the then Court of First Instance of Batangas is hereby
AFFIRMED and REINSTATED.
SO ORDERED.
Yap, C.J., Padilla and Sarmiento, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION
G.R. No. L-34915 June 24, 1983
CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON CITY, petitioners,
vs.
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of Rizal, Quezon City, Branch
XVIII; HIMLAYANG PILIPINO, INC., respondents.

City Fiscal for petitioners.

Manuel Villaruel, Jr. and Feliciano Tumale for respondents.

GUTIERREZ, JR., J.:

This is a petition for review which seeks the reversal of the decision of the Court of First Instance of Rizal, Branch
XVIII declaring Section 9 of Ordinance No. 6118, S-64, of the Quezon City Council null and void.
Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE ESTABLISHMENT,
MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY OR BURIAL GROUND
WITHIN THE JURISDICTION OF QUEZON CITY AND PROVIDING PENALTIES FOR THE VIOLATION
THEREOF" provides:
Sec. 9. At least six (6) percent of the total area of the memorial park cemetery shall be set aside for
charity burial of deceased persons who are paupers and have been residents of Quezon City for at
least 5 years prior to their death, to be determined by competent City Authorities. The area so
designated shall immediately be developed and should be open for operation not later than six
months from the date of approval of the application.
For several years, the aforequoted section of the Ordinance was not enforced by city authorities but seven years after
the enactment of the ordinance, the Quezon City Council passed the following resolution:
RESOLVED by the council of Quezon assembled, to request, as it does hereby request the City
Engineer, Quezon City, to stop any further selling and/or transaction of memorial park lots in Quezon
City where the owners thereof have failed to donate the required 6% space intended for paupers
burial.
Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang Pilipino, Inc. in writing that
Section 9 of Ordinance No. 6118, S-64 would be enforced
Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of Rizal Branch XVIII at Quezon
City, a petition for declaratory relief, prohibition and mandamus with preliminary injunction (Sp. Proc. No. Q-16002)
seeking to annul Section 9 of the Ordinance in question The respondent alleged that the same is contrary to the
Constitution, the Quezon City Charter, the Local Autonomy Act, and the Revised Administrative Code.
There being no issue of fact and the questions raised being purely legal both petitioners and respondent agreed to the
rendition of a judgment on the pleadings. The respondent court, therefore, rendered the decision declaring Section 9 of
Ordinance No. 6118, S-64 null and void.
A motion for reconsideration having been denied, the City Government and City Council filed the instant petition.
Petitioners argue that the taking of the respondent's property is a valid and reasonable exercise of police power and
that the land is taken for a public use as it is intended for the burial ground of paupers. They further argue that the
Quezon City Council is authorized under its charter, in the exercise of local police power, " to make such further
ordinances and resolutions not repugnant to law as may be necessary to carry into effect and discharge the powers and
duties conferred by this Act and such as it shall deem necessary and proper to provide for the health and safety,
promote the prosperity, improve the morals, peace, good order, comfort and convenience of the city and the
inhabitants thereof, and for the protection of property therein."
On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or confiscation of property is obvious
because the questioned ordinance permanently restricts the use of the property such that it cannot be used for any
reasonable purpose and deprives the owner of all beneficial use of his property.
The respondent also stresses that the general welfare clause is not available as a source of power for the taking of the
property in this case because it refers to "the power of promoting the public welfare by restraining and regulating the
use of liberty and property." The respondent points out that if an owner is deprived of his property outright under the
State's police power, the property is generally not taken for public use but is urgently and summarily destroyed in
order to promote the general welfare. The respondent cites the case of a nuisance per se or the destruction of a house
to prevent the spread of a conflagration.
We find the stand of the private respondent as well as the decision of the respondent Judge to be well-founded. We

quote with approval the lower court's ruling which declared null and void Section 9 of the questioned city ordinance:
The issue is: Is Section 9 of the ordinance in question a valid exercise of the police power?
An examination of the Charter of Quezon City (Rep. Act No. 537), does not reveal any provision that
would justify the ordinance in question except the provision granting police power to the City.
Section 9 cannot be justified under the power granted to Quezon City to tax, fix the license fee,
and regulatesuch other business, trades, and occupation as may be established or practised in the
City.' (Subsections 'C', Sec. 12, R.A. 537).
The power to regulate does not include the power to prohibit (People vs. Esguerra, 81 PhiL 33, Vega
vs. Municipal Board of Iloilo, L-6765, May 12, 1954; 39 N.J. Law, 70, Mich. 396). A fortiori, the
power to regulate does not include the power to confiscate. The ordinance in question not only
confiscates but also prohibits the operation of a memorial park cemetery, because under Section 13 of
said ordinance, 'Violation of the provision thereof is punishable with a fine and/or imprisonment and
that upon conviction thereof the permit to operate and maintain a private cemetery shall be revoked
or cancelled.' The confiscatory clause and the penal provision in effect deter one from operating a
memorial park cemetery. Neither can the ordinance in question be justified under sub- section "t",
Section 12 of Republic Act 537 which authorizes the City Council to'prohibit the burial of the dead within the center of population of the city and provide
for their burial in such proper place and in such manner as the council may
determine, subject to the provisions of the general law regulating burial grounds and
cemeteries and governing funerals and disposal of the dead.' (Sub-sec. (t), Sec. 12,
Rep. Act No. 537).
There is nothing in the above provision which authorizes confiscation or as euphemistically termed
by the respondents, 'donation'
We now come to the question whether or not Section 9 of the ordinance in question is a valid exercise
of police power. The police power of Quezon City is defined in sub-section 00, Sec. 12, Rep. Act 537
which reads as follows:
(00) To make such further ordinance and regulations not repugnant to law as may be
necessary to carry into effect and discharge the powers and duties conferred by this
act and such as it shall deem necessary and proper to provide for the health and
safety, promote, the prosperity, improve the morals, peace, good order, comfort and
convenience of the city and the inhabitants thereof, and for the protection of
property therein; and enforce obedience thereto with such lawful fines or penalties
as the City Council may prescribe under the provisions of subsection (jj) of this
section.
We start the discussion with a restatement of certain basic principles. Occupying the forefront in the
bill of rights is the provision which states that 'no person shall be deprived of life, liberty or property
without due process of law' (Art. Ill, Section 1 subparagraph 1, Constitution).
On the other hand, there are three inherent powers of government by which the state interferes with
the property rights, namely-. (1) police power, (2) eminent domain, (3) taxation. These are said to
exist independently of the Constitution as necessary attributes of sovereignty.
Police power is defined by Freund as 'the power of promoting the public welfare by restraining and
regulating the use of liberty and property' (Quoted in Political Law by Tanada and Carreon, V-11, p.
50). It is usually exerted in order to merely regulate the use and enjoyment of property of the owner.
If he is deprived of his property outright, it is not taken for public use but rather to destroy in order to
promote the general welfare. In police power, the owner does not recover from the government for
injury sustained in consequence thereof (12 C.J. 623). It has been said that police power is the most
essential of government powers, at times the most insistent, and always one of the least limitable of
the powers of government (Ruby vs. Provincial Board, 39 PhiL 660; Ichong vs. Hernandez, 1,7995,
May 31, 1957). This power embraces the whole system of public regulation (U.S. vs. Linsuya Fan, 10
PhiL 104). The Supreme Court has said that police power is so far-reaching in scope that it has
almost become impossible to limit its sweep. As it derives its existence from the very existence of the

state itself, it does not need to be expressed or defined in its scope. Being coextensive with selfpreservation and survival itself, it is the most positive and active of all governmental processes, the
most essential insistent and illimitable Especially it is so under the modern democratic framework
where the demands of society and nations have multiplied to almost unimaginable proportions. The
field and scope of police power have become almost boundless, just as the fields of public interest
and public welfare have become almost all embracing and have transcended human foresight. Since
the Courts cannot foresee the needs and demands of public interest and welfare, they cannot delimit
beforehand the extent or scope of the police power by which and through which the state seeks to
attain or achieve public interest and welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957).
The police power being the most active power of the government and the due process clause being
the broadest station on governmental power, the conflict between this power of government and the
due process clause of the Constitution is oftentimes inevitable.
It will be seen from the foregoing authorities that police power is usually exercised in the form of
mere regulation or restriction in the use of liberty or property for the promotion of the general
welfare. It does not involve the taking or confiscation of property with the exception of a few cases
where there is a necessity to confiscate private property in order to destroy it for the purpose of
protecting the peace and order and of promoting the general welfare as for instance, the confiscation
of an illegally possessed article, such as opium and firearms.
It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a
mere police regulation but an outright confiscation. It deprives a person of his private property
without due process of law, nay, even without compensation.
In sustaining the decision of the respondent court, we are not unmindful of the heavy burden shouldered by whoever
challenges the validity of duly enacted legislation whether national or local As early as 1913, this Court ruled in Case
v. Board of Health (24 PhiL 250) that the courts resolve every presumption in favor of validity and, more so, where
the ma corporation asserts that the ordinance was enacted to promote the common good and general welfare.
In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v. City Mayor of Manila (20 SCRA
849) the Court speaking through the then Associate Justice and now Chief Justice Enrique M. Fernando stated
Primarily what calls for a reversal of such a decision is the a of any evidence to offset the
presumption of validity that attaches to a statute or ordinance. As was expressed categorically by
Justice Malcolm 'The presumption is all in favor of validity. ... The action of the elected
representatives of the people cannot be lightly set aside. The councilors must, in the very nature of
things, be familiar with the necessities of their particular ... municipality and with all the facts and
lances which surround the subject and necessitate action. The local legislative body, by enacting the
ordinance, has in effect given notice that the regulations are essential to the well-being of the
people. ... The Judiciary should not lightly set aside legislative action when there is not a clear
invasion of personal or property rights under the guise of police regulation. (U.S. v. Salaveria (1918],
39 Phil. 102, at p. 111. There was an affirmation of the presumption of validity of municipal
ordinance as announced in the leading Salaveria decision in Ebona v. Daet, [1950]85 Phil. 369.)
We have likewise considered the principles earlier stated in Case v. Board of Health supra :
... Under the provisions of municipal charters which are known as the general welfare clauses, a city,
by virtue of its police power, may adopt ordinances to the peace, safety, health, morals and the best
and highest interests of the municipality. It is a well-settled principle, growing out of the nature of
well-ordered and society, that every holder of property, however absolute and may be his title, holds
it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others
having an equal right to the enjoyment of their property, nor injurious to the rights of the community.
An property in the state is held subject to its general regulations, which are necessary to the common
good and general welfare. Rights of property, like all other social and conventional rights, are subject
to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to
such reasonable restraints and regulations, established by law, as the legislature, under the governing
and controlling power vested in them by the constitution, may think necessary and expedient. The
state, under the police power, is possessed with plenary power to deal with all matters relating to the
general health, morals, and safety of the people, so long as it does not contravene any positive

inhibition of the organic law and providing that such power is not exercised in such a manner as to
justify the interference of the courts to prevent positive wrong and oppression.
but find them not applicable to the facts of this case.
There is no reasonable relation between the setting aside of at least six (6) percent of the total area of an private
cemeteries for charity burial grounds of deceased paupers and the promotion of health, morals, good order, safety, or
the general welfare of the people. The ordinance is actually a taking without compensation of a certain area from a
private cemetery to benefit paupers who are charges of the municipal corporation. Instead of building or maintaining a
public cemetery for this purpose, the city passes the burden to private cemeteries.
The expropriation without compensation of a portion of private cemeteries is not covered by Section 12(t) of Republic
Act 537, the Revised Charter of Quezon City which empowers the city council to prohibit the burial of the dead
within the center of population of the city and to provide for their burial in a proper place subject to the provisions of
general law regulating burial grounds and cemeteries. When the Local Government Code, Batas Pambansa Blg. 337
provides in Section 177 (q) that a Sangguniang panlungsod may "provide for the burial of the dead in such place and
in such manner as prescribed by law or ordinance" it simply authorizes the city to provide its own city owned land or
to buy or expropriate private properties to construct public cemeteries. This has been the law and practise in the past.
It continues to the present. Expropriation, however, requires payment of just compensation. The questioned ordinance
is different from laws and regulations requiring owners of subdivisions to set aside certain areas for streets, parks,
playgrounds, and other public facilities from the land they sell to buyers of subdivision lots. The necessities of public
safety, health, and convenience are very clear from said requirements which are intended to insure the development of
communities with salubrious and wholesome environments. The beneficiaries of the regulation, in turn, are made to
pay by the subdivision developer when individual lots are sold to home-owners.
As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of the municipal
corporation, not on any express provision of law as statutory basis of their exercise of power. The clause has always
received broad and liberal interpretation but we cannot stretch it to cover this particular taking. Moreover, the
questioned ordinance was passed after Himlayang Pilipino, Inc. had incorporated. received necessary licenses and
permits and commenced operating. The sequestration of six percent of the cemetery cannot even be considered as
having been impliedly acknowledged by the private respondent when it accepted the permits to commence operations.
WHEREFORE, the petition for review is hereby DISMISSED. The decision of the respondent court is affirmed.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. Nos. L-60549, 60553 to 60555 October 26, 1983
HEIRS OF JUANCHO ARDONA (represented by Gloria Ardona) ANASTACIO C. CABILAO, HEIRS OF
CIPRIANO CABILAO (represented by Jose Cabilao) MODESTA CABILAO, HEIRS OF ROMAN
CABUENAS (represented by Alberto Cabuenas), AGRIPINO GABISAY and PRUDENCIA MABINI,
ANTONIO LABRADOR and LUCIA GABISAY, GERONIMO MABINI and MARCELINA SABAL,
INOCENCIO MABINI and ARSENIA REYES, PATRICIO MABINI and GREGORIA BORRES, ANICETO
GADAPAN and MAXIMA GABISAY, BARTOLOME MAGNO and CALINECA E. MAGNO, ALBERTO
CABUENAS, NARCISO CABUENAS and VICTORIA CABUENAS, EUTIQUIOSENO, HEIRS OF
ESPERIDION CABUENAS (represented by Alberto Cabuenas), MAXIMINA NAVARO, SULPICIO
NAVARO, EDUARDO NAVARO, MARTINIANO ROMA (in representation of Arcadio Mabini, deceased),
MARTIN SENO, FAUSTO ARDA, MAXIMA CABILAO, ESTRELLA SENO, EDUVEGIS S. CABILAO,
ROSARIO CABILAO, MINORS DANILO, SOCORRO, JOSEFINA and MARITES, all surnamed Cabilao,
JUAN BORRES (represented by Francisca Borres), RAMON JABADAN, JESUS ALIPAR and LEONILA
KABAHAR, ANTONIO LABRADOR, HEIRS OF NICASIO GABISAY (represented by Arsenio Gabisay),

PACIFICO LABRADOR, DEMETRIO LABRADOR and FRUCTOSA TABURA, VENANCIO DEL MAR,
MARINO DEL MAR, HEIRS OF TEODORA ARCILLO (represented by Brigida Arcillo) DIONISIA
GABUNADA, HEIRS OF BUENAVENTURA FRANCISCO (represented by Felicidad Sadaya Francisco),
HEIRS OF VICTORIA C. CABUENAS (represented by Alberto Cabuenas) HEIRS OF CIPRIANO
GABUNADA (represented by Claudio Gabunada), petitioners,
vs.
HON. JUAN Y. REYES, Executive Judge and Presiding Judge of Branch I, COURT OF FIRST instance OF
CEBU, and the PHILIPPINE TOURISM AUTHORITY, respondents.
George M. Baladjay, Mario G. dela Victoria, Olegario Sarmiento, Jr., and Democrito Barcenas for petitioners.
The Solicitor General for respondent Judge.
F.A. Sugue & Elino B. Lingas for Philippine Tourism Authoirity

GUTIERREZ, JR., J.:

This is a petition for certiorari with preliminary injunction challenging the constitutionality of Presidential Decree No.
564, the Revised Charter of the Philippine Tourism Authority, and Proclamation No. 2052 declaring the barangays of
Sibugay, Malubog, Babag and Sirao including the proposed Lusaran Dam in the City of Cebu and in the
municipalities of Argao and Dalaguete in the province of Cebu as tourist zones. The petitioners ask that we restrain
respondent Court of First Instance of Cebu and the Philippine Tourism Authority (PTA) from enforcing and
implementing the writs of possession issued in four (4) expropriation cases filed by PTA against the petitioners: Civil
Cases Nos. R-19562, R-19684, R-20701, and R-21608 of the Court of First Instance of Cebu (Branch 1).
The Philippine Tourism Authority filed four (4) Complaints with the Court of First Instance of Cebu City for the
expropriation of some 282 hectares of rolling land situated in barangays Malubog and Babag, Cebu City, under PTA's
express authority "to acquire by purchase, by negotiation or by condemnation proceedings any private land within and
without the tourist zones" for the purposes indicated in Section 5, paragraph B(2), of its Revised Charter (PD 564),
more specifically, for the development into integrated resort complexes of selected and well-defined geographic areas
with potential tourism value. As uniformly alleged in the complaints, the purposes of the expropriation are:
xxx xxx xxx
V
Plaintiff, in line with the policy of the government to promote tourism and development of tourism
projects will construct in Barangays Malubog, Busay and Babag, all of Cebu City, a sports complex
(basketball courts, tennis courts, volleyball courts, track and field, baseball and softball diamonds,
and swimming pools), clubhouse, gold course, children's playground and a nature area for picnics and
horseback riding for the use of the public.
The development plan, covering approximately 1,000 hectares, includes the establishment of an
electric power grid in the area by the National Power Corporation, thus assuring the supply of
electricity therein for the benefit of the whole community. Deep wells will also be constructed to
generate water supply within the area. Likewise, a complex sewerage and drainage system will be
devised and constructed to protect the tourists and nearby residents from the dangers of pollution.
Complimentary and support facilities for the project will be constructed, including public rest houses,
lockers, dressing rooms, coffee shops, shopping malls, etc. Said facilities will create and offer
employment opportunities to residents of the community and further generate income for the whole
of Cebu City.
Plaintiff needs the property above described which is directly covered by the proposed golf court.
xxx xxx xxx
The defendants in Civil Cases Nos. R-20701 and R-21608 filed their respective Opposition with Motion to Dismiss
and/or Reconsideration. The defendants in Civil Case No. R-19562 filed a manifestation adopting the answer of
defendants in Civil Case No. R-19864. The defendants, now petitioners, had a common allegation in that the taking is
allegedly not impressed with public use under the Constitution.

In their motions to dismiss, the petitioners alleged, in addition to the issue of public use, that there is no specific
constitutional provision authorizing the taking of private property for tourism purposes; that assuming that PTA has
such power, the intended use cannot be paramount to the determination of the land as a land reform area; that limiting
the amount of compensation by Legislative fiat is constitutionally repugnant; and that since the land is under the land
reform program, it is the Court of Agrarian Relations and not the Court of First Instance that has jurisdiction over the
expropriation cases.
The Philippine Tourism Authority having deposited with The Philippine National Bank, Cebu City Branch, an amount
equivalent to 10% of the value of the properties pursuant to Presidential Decree No. 1533. the lower court issued
separate orders authorizing PTA to take immediate possession of the premises and directing the issuance of writs of
possession.
On May 25, 1982, petitioners filed this petition questioning the orders of the respondent Judge, The respondents have
correctly restated the grounds in the petition as follows:
xxx xxx xxx
A. The complaints for expropriation lack basis because the Constitution does not provide for the
expropriation of private property for tourism or other related purposes;
B. The writs of possession or orders authorizing PTA to take immediate possession is premature
because the "public use" character of the taking has not been previously demonstrated;
C. The taking is not for public use in contemplation of eminent domain law;
D. The properties in question have been previously declared a land reform area; consequently, the
implementation of the social justice pro- ,vision of the Constitution on agrarian reform is paramount
to the right of the State to expropriate for the purposes intended;
E. Proclamation No. 2052 declaring certain barangays in Cebu City, which include the lands subject
of expropriation as within a tourist zone, is unconstitutional for it impairs the obligation of contracts;
"F. Since the properties are within a land reform area, it is the Court of Agrarian Relations, not the
lower court, that has jurisdiction pursuant to Pres. Decree No. 946;
F. The forcible ejectment of defendants from the premises constitutes a criminal act under Pres.
Decree No. 583;
In their memorandum, the petitioners have summarized the issues as follows:
I. Enforcement of the Writ of Possession is Premature:
II. Presidential Decree 564 Amending Presidential Decree l89 is Constitutionally Repugnant:
III. The Condemnation is not for Public Use, Therefore, Unconstitutional:
IV. The Expropriation for Tourism Purposes of Lands Covered by the Land Reform Program Violates
the Constitution:
V. Presidential Proclamation 2052 is Unconstitutional:
VI. Presidential Decree No 1533 is Unconstitutional:
VII. The Court of First Instance has no Jurisdiction:
VIII. The Filing of the Present Petition is not Premature.
The issues raised by the petitioners revolve around the proposition that the actions to expropriate their properties are
constitutionally infirm because nowhere in the Constitution can a provision be found which allows the taking of
private property for the promotion of tourism.
The petitioners' arguments in their pleadings in support of the above proposition are subsumed under the following
headings:
1. Non-compliance with the "public use" requirement under the eminent domain provision of the Bill
of Rights.
2. Disregard of the land reform nature of the property being expropriated.

3. Impairment of the obligation of contracts.

There are three provisions of the Constitution which directly provide for the exercise of the power of eminent domain.
Section 2, Article IV states that private property shall not be taken for public use without just compensation. Section 6,
Article XIV allows the State, in the interest of national welfare or defense and upon payment of just compensation to
transfer to public ownership, utilities and other private enterprises to be operated by the government. Section 13,
Article XIV states that the Batasang Pambansa may authorize upon payment of just compensation the expropriation of
private lands to be subdivided into small lots and conveyed at cost to deserving citizens.
While not directly mentioning the expropriation of private properties upon payment of just compensation, the
provisions on social justice and agrarian reforms which allow the exercise of police power together with the power of
eminent domain in the implementation of constitutional objectives are even more far-reaching insofar as taking of
private property is concerned.
Section 6, Article II provides:
Sec. 6. The State shall promote social justice to ensure the dignity, welfare, and security of all the
people. Towards its end, the State shall regulate the acquisition, ownership, use, enjoyment, and
disposition of private property, and equitably diffuse property ownership and profits.
xxx xxx xxx
Section 12, Article XIV provides:
See. 12. The State shall formulate and implement an agrarian reform program aimed at emancipating
the tenant from the bondage of the soil and achieving the goals enunciated in this Constitution.
The equitable diffusion of property ownership in the promotion of social justice implies the exercise, whenever
necessary, of the power to expropriate private property. Likewise there can be no meaningful agrarian reform program
unless the power to expropriate is utilized.
We cite all the above provisions on the power to expropriate because of the petitioners' insistence on a restrictive view
of the eminent domain provision. The thrust of all constitutional provisions on expropriation is in the opposite
direction.
As early as 1919, this Court in Visayan Refining Co. v. Samus (40 Phil. 550) categorized the restrictive view as wholly
erroneous and based on a misconception of fundamentals.
The petitioners look for the word "tourism" in the Constitution. Understandably the search would be in vain. The
policy objectives of the framers can be expressed only in general terms such as social justice, local autonomy,
conservation and development of the national patrimony, public interest, and general welfare, among others. The
programs to achieve these objectives vary from time to time and according to place, To freeze specific programs like
Tourism into express constitutional provisions would make the Constitution more prolix than a bulky code and require
of the framers a prescience beyond Delphic proportions. The particular mention in the Constitution of agrarian reform
and the transfer of utilities and other private enterprises to public ownership merely underscores the magnitude of the
problems sought to be remedied by these programs. They do not preclude nor limit the exercise of the power of
eminent domain for such purposes like tourism and other development programs.
In the leading case of Visayan Refining Co. v. Camus (supra), this Court emphasized that the power of eminent domain
is inseparable from sovereignty being essential to the existence of the State and inherent in government even in its
most primitive forms. The only purpose of the provision in the Bill of Rights is to provide some form of restraint on
the sovereign power. It is not a grant of authority The power of eminent domain does not depend for its existence on a specific grant in the
constitution. It is inherent in sovereignty and exists in a sovereign state without any recognition of it
in the constitution. The provision found in most of the state constitutions relating to the taking of
property for the public use do not by implication grant the power to the government of the state, but
limit a power which would otherwise be without limit.
The constitutional restraints are public use and just compensation.
Do the purposes of the taking in this case constitute "public use"?
The petitioners ask us to adopt a strict construction and declare that "public use" means literally use by the public and

that "public use" is not synonymous with "public interest", "public benefit", or "public welfare" and much less "public
convenience. "
The petitioners face two major obstacles. First, their contention which is rather sweeping in its call for a retreat from
the public welfare orientation is unduly restrictive and outmoded. Second, no less than the lawmaker has made a
policy determination that the power of eminent domain may be exercised in the promotion and development of
Philippine tourism.
The restrictive view of public use may be appropriate for a nation which circumscribes the scope of government
activities and public concerns and which possesses big and correctly located public lands that obviate the need to take
private property for public purposes. Neither circumstance applies to the Philippines. We have never been a laissez
faire State, And the necessities which impel the exertion of sovereign power are all too often found in areas of scarce
public land or limited government resources.
Certain aspects of parliamentary government were introduced by the 1973 amendments to the Constitution with
further modifications in the 1976 and 1981 amendments. Insofar as the executive and legislative departments are
concerned, the traditional concept of checks and balances in a presidential form was considerably modified to remove
some roadblocks in the expeditious implementation of national policies. There was no such change for the judiciary.
We remain as a checking and balancing department even as all strive to maintain respect for constitutional boundaries.
At the same time, the philosophy of coordination in the pursuit of developmental goals implicit in the amendments
also constrains in the judiciary to defer to legislative discretion iii the judicial review of programs for economic
development and social progress unless a clear case of constitutional infirmity is established. We cannot stop the
legitimate exercise of power on an invocation of grounds better left interred in a bygone age and time.* As we review
the efforts of the political departments to bring about self-sufficiency, if not eventual abundance, we continue to
maintain the liberal approach because the primary responsibility and the discretion belong to them.
There can be no doubt that expropriation for such traditions' purposes as the construction of roads, bridges, ports,
waterworks, schools, electric and telecommunications systems, hydroelectric power plants, markets and
slaughterhouses, parks, hospitals, government office buildings, and flood control or irrigation systems is valid.
However, the concept of public use is not limited to traditional purposes. Here as elsewhere the Idea that "public use"
is strictly limited to clear cases of "use by the public" has been discarded.
In the United States, the rule was enunciated in Berman v. Parker (348 U.S. 25; 99 L. ed. 27) as follows:
We do not sit to determine whether a particular housing project is or is not desirable. The concept of
the public welfare is broad and inclusive. See DayBrite Lighting, Inc. v. Missouri, 342 US 421, 424,
96 L ed 469, 472, 72 S Ct 405. The values it represents are spiritual as well as physical, aesthetic as
well as monetary. It is within the power of the legislature to determine that the community should be
beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In
the present case, the Congress and its authorized agencies have made determinations that take into
account a wide variety of values. It is not for us to reappraise them. If those who govern the District
of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing
in the Fifth Amendment that stands in the way.
Once the object is within the authority of Congress, the right to realize it through the exercise of
eminent domain is clear. For the power of eminent domain is merely the means to the end. See
Luxton v. North River Bridge Co. 153 US 525, 529, 530, 38 L ed 808, 810, 14 S Ct 891; United
States v. Gettysburg Electric R. Co. 160 US 668, 679, 40 L ed 576, 580, 16 S Ct 427.
In an earlier American case, where a village was isolated from the rest of North Carolina because of the flooding of
the reservoir of a dam thus making the provision of police, school, and health services unjustifiably expensive, the
government decided to expropriate the private properties in the village and the entire area was made part of an
adjoining national park. The district court and the appellate court ruled against the expropriation or excess
condemnation. The Court of Appeals applied the "use by the public" test and stated that the only land needed for
public use was the area directly flooded by the reservoir. The village may have been cut off by the dam but to also
condemn it was excess condemnation not valid under the "Public use" requirement. The U.S. Supreme Court in United
States ex rel TVA v. Welch (327 U.S, 546; 90 L. ed 843) unanimously reversed the lower courts. It stated:
The Circuit Court of Appeals, without expressly relying on a compelling rule of construction that
would give the restrictive scope to the T.V.A. Act given it by the district court, also interpreted the

statute narrowly. It first analyzed the facts by segregating the total problem into distinct parts, and
thus came to the conclusion that T.V.A.'s purpose in condemning the land in question was only one to
reduce its liability arising from the destruction of the highway. The Court held that use of the lands
for that purpose is a "private" and not a "public use" or, at best, a "public use" not authorized by the
statute. we are unable to agree with the reasoning and conclusion of the Circuit Court of Appeals.
We think that it is the function of Congress to decide what type of taking is for a public use and that
the agency authorized to do the taking may do so to the still extent of its statutory authority, United
States v. Gettysburg Electric R. Co. 160 US 668, 679, 40 L ed 576, 580, 16 S Ct 427. ...
xxx xxx xxx
... But whatever may be the scope of the judicial power to determine what is a "public use" in
Fourteenth Amendment controversies, this Court has said that when Congress has spoken on this
subject "Its decision is entitled to deference until it is shown to involve an impossibility." Old
Dominion Land Co. v. United States, 269, US 55, 66, 70 L ed 162, 46 S Ct 39. Any departure from
this judicial restraint would result in courts deciding on what is and is not a governmental function
and in their invalidating legislation on the basis of their view on that question at the moment of
decision, a practice which has proved impracticable in other fields. See Case v. Bowles decided
February 4, 1946, 437 US 92, 101, ante, 552, 559, 66 S Ct 438. New York v. United States, 326 US
572 ante 326, 66 S Ct 310). We hold that the T.V.A. took the tracts here involved for a public
purpose, if, as we think is the case, Congress authorized the Authority to acquire, hold, and use the
lands to carry out the purposes of the T.V.A. Act.
In the Philippines, Chief Justice Enrique M. Fernando has aptly summarized the statutory and judicial trend as
follows:
The taking to be valid must be for public use. There was a time when it was felt that a literal meaning
should be attached to such a requirement. Whatever project is undertaken must be for the public to
enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable. It is not any more.
As long as the purpose of the taking is public, then the power of eminent domain comes into play. As
just noted, the constitution in at least two cases, to remove any doubt, determines what is public use.
One is the expropriation of lands to be subdivided into small lots for resale at cost to individuals. The
other is in the transfer, through the exercise of this power, of utilities and other private enterprise to
the government. It is accurate to state then that at present whatever may be beneficially employed for
the general welfare satisfies the requirement of public use. (Fernando, The Constitution of the
Philippines, 2nd ed., pp. 523-524)
The petitioners' contention that the promotion of tourism is not "public use" because private concessioners would be
allowed to maintain various facilities such as restaurants, hotels, stores, etc. inside the tourist complex is impressed
with even less merit. Private bus firms, taxicab fleets, roadside restaurants, and other private businesses using public
streets end highways do not diminish in the least bit the public character of expropriations for roads and streets. The
lease of store spaces in underpasses of streets built on expropriated land does not make the taking for a private
purpose. Airports and piers catering exclusively to private airlines and shipping companies are still for public use. The
expropriation of private land for slum clearance and urban development is for a public purpose even if the developed
area is later sold to private homeowners, commercial firms, entertainment and service companies, and other private
concerns.
The petitioners have also failed to overcome the deference that is appropriately accorded to formulations of national
policy expressed in legislation. The rule in Berman u. Parker (supra) of deference to legislative policy even if such
policy might mean taking from one private person and conferring on another private person applies as well as in the
Philippines.
... Once the object is within the authority of Congress, the means by which it will be attained is also
for Congress to determine. Here one of the means chosen is the use of private enterprise for
redevelopment of the area. Appellants argue that this makes the project a taking from one
businessman for the benefit of another businessman. But the means of executing the project are for
Congress and Congress alone to determine, once the public purpose has been established. Selb
Luxton v. North River Bridge Co. (US) supra; cf. Highland v. Russel Car & Snow Plow Co. 279 US
253, 73 L ed 688, 49 S Ct 314. The public end may be as well or better served through an agency of

private enterprise than through a department of government-or so the Congress might conclude. We
cannot say that public ownership is the sole method of promoting the public purposes of community
redevelopment projects. What we have said also disposes of any contention concerning the fact that
certain property owners in the area may be permitted to repurchase their properties for redevelopment
in harmony with the over-all plan. That, too, is a legitimate means which Congress and its agencies
may adopt, if they choose. (Berman v. Parker, 99 L ed 38, 348 US 33, 34)
An examination of the language in the 1919 cases of City of Manila v. Chinese Community of Manila (40 Phil, 349)
and Visayan Refining Co. vs. Camus, earlier cited, shows that from the very start of constitutional government in our
country judicial deference to legislative policy has been clear and manifest in eminent domain proceedings.
The expressions of national policy are found in the revised charter of the Philippine Tourism Authority, Presidential
Decree No. 564:
WHEREAS, it is the avowed aim of the government to promote Philippine tourism and work for its
accelerated and balanced growth as well as for economy and expediency in the development of the
tourism plant of the country;
xxx xxx xxx
SECTION 1. Declaration of Policy. - It is hereby declared to be the policy of the State to promote,
encourage, and develop Philippine tourism as an instrument in accelerating the development of the
country, of strengthening the country's foreign exchange reserve position, and of protecting
Philippine culture, history, traditions and natural beauty, internationally as well as domestically.
The power of eminent domain is expressly provided for under Section 5 B(2) as follows:
xxx xxx xxx
2. Acquisition of Private Lands, Power of Eminent Domain. To acquire by purchase, by
negotiation or by condemnation proceedings any private land within and without the tourist zones for
any of the following reasons: (a) consolidation of lands for tourist zone development purposes, (b)
prevention of land speculation in areas declared as tourist zones, (c) acquisition of right of way to the
zones, (d) protection of water shed areas and natural assets with tourism value, and (e) for any other
purpose expressly authorized under this Decree and accordingly, to exercise the power of eminent
domain under its own name, which shall proceed in the manner prescribed by law and/or the Rules of
Court on condemnation proceedings. The Authority may use any mode of payment which it may
deem expedient and acceptable to the land owners: Provided, That in case bonds are used as payment,
the conditions and restrictions set forth in Chapter III, Section 8 to 13 inclusively, of this Decree shall
apply.
xxx xxx xxx
The petitioners rely on the Land Reform Program of the government in raising their second argument. According to
them, assuming that PTA has the right to expropriate, the properties subject of expropriation may not be taken for the
purposes intended since they are within the coverage of "operation land transfer" under the land reform program.
Petitioners claim that certificates of land transfer (CLT'S) and emancipation patents have already been issued to them
thereby making the lands expropriated within the coverage of the land reform area under Presidential Decree No. 2;
that the agrarian reform program occupies a higher level in the order of priorities than other State policies like those
relating to the health and physical well- being of the people; and that property already taken for public use may not be
taken for another public use.
We have considered the above arguments with scrupulous and thorough circumspection. For indeed any claim of
rights under the social justice and land reform provisions of the Constitution deserves the most serious consideration.
The Petitioners, however, have failed to show that the area being developed is indeed a land reform area and that the
affected persons have emancipation patents and certificates of land transfer.
The records show that the area being developed into a tourism complex consists of more than 808 hectares, almost all
of which is not affected by the land reform program. The portion being expropriated is 282 hectares of hilly and
unproductive land where even subsistence farming of crops other than rice and corn can hardly survive. And of the
282 disputed hectares, only 8,970 square meters-less than one hectare-is affected by Operation Land Transfer. Of the
40 defendants, only two have emancipation patents for the less than one hectare of land affected. And this 8,970

square meters parcel of land is not even within the sports complex proper but forms part of the 32 hectares
resettlement area where the petitioners and others similarly situated would be provided with proper housing,
subsidiary employment, community centers, schools, and essential services like water and electricity-which are nonexistent in the expropriated lands. We see no need under the facts of this petition to rule on whether one public
purpose is superior or inferior to another purpose or engage in a balancing of competing public interests. The
petitioners have also failed to overcome the showing that the taking of the 8,970 square meters covered by Operation
Land Transfer forms a necessary part of an inseparable transaction involving the development of the 808 hectares
tourism complex. And certainly, the human settlement needs of the many beneficiaries of the 32 hectares resettlement
area should prevail over the property rights of two of their compatriots.
The invocation of the contracts clause has no merit. The non-impairment clause has never been a barrier to the
exercise of police power and likewise eminent domain. As stated in Manigault v. Springs (199 U.S. 473) "parties by
entering into contracts may not stop the legislature from enacting laws intended for the public good."
The applicable doctrine is expressed in Arce v. Genato (69 SCRA 544) which involved the expropriation of land for a
public plaza. The Court stated:
xxx xxx xxx
... What is claimed is that there must be a showing of necessity for such condemnation and that it was
not done in this case in support of such a view, reliance is placed on City of Manila v. Arenano Law
Colleges. (85 Phil. 663 [1950]) That doctrine itself is based on the earlier case of City of Manila v.
Chinese Community of Manila, (50 Phil. 349) also, like Camus, a 1919 decision. As could be
discerned, however, in the Arellano Law Colleges decision. it was the antiquarian view of Blackstone
with its sanctification of the right to one's estate on which such an observation was based. As did
appear in his Commentaries: "So great is the regard of the law for private property that it will not,
authorize the least violation of it, even for the public good, unless there exists a very great necessity
thereof." Even the most , cursory glance at such well-nigh absolutist concept of property would show
its obsolete character at least for Philippine constitutional law. It cannot survive the test of the 1935
Constitution with its mandates on social justice and protection to labor. (Article II, Section 5 of the
1935 Constitution reads: "The promotion of social justice to unsure the well-being and economic
security of all the people should be the concern of the State." Article XI, Section 6 of the same
Constitution provides: "The State shall afford protection to labor, especially to working women and
minors, and shall regulate the relation between landowner and tenant, and between labor and capital
in industry and in agriculture. The State may provide for compulsory arbitration.") What is more, the
present Constitution pays even less heed to the claims of property and rightly so. After stating that the
State shall promote social justice, it continues: "Towards this end, the State shall regulate the
acquisition, ownership, use, enjoyment, and disposition of private property, and equitably diffuse
property ownership and profits." (That is the second sentence of Article II, Section 6 of the
Constitution) If there is any need for explicit confirmation of what was set forth in Presidential
Decree No. 42, the above provision supplies it. Moreover, that is merely to accord to what of late has
been the consistent course of decisions of this Court whenever property rights are pressed unduly.
(Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172; Agricultural
Credit and Cooperative Financing Administration v. Confederation of Unions, L-21484, Nov. 29,
1969, 30 SCRA 649; Edu v. Ericta, L-32096, Oct. 24, 1970, 35 SCRA 481; Phil. Virginia Tobacco
Administration v. Court of Industrial Relations, L-32052, July 25, 1975, 65 SCRA 416) The
statement therefore, that there could be discerned a constitutional objection to a lower court applying
a Presidential Decree, when it leaves no doubt that a grantee of the power of eminent domain need
not prove the necessity for the expropriation, carries its own refutation.
xxx xxx xxx
The issue of prematurity is also raised by the petitioners. They claim that since the necessity for the taking has not
been previously established, the issuance of the orders authorizing the PTA to take immediate possession of the
premises, as well as the corresponding writs of possession was premature.
Under Presidential Decree No. 42, as amended by Presidential Decree No. 1533, the government, its agency or
instrumentality, as plaintiff in an expropriation proceedings is authorized to take immediate possession, control and
disposition of the property and the improvements, with power of demolition, notwithstanding the pendency of the

issues before the court, upon deposit with the Philippine National Bank of an amount equivalent to 10% of the value
of the property expropriated. The issue of immediate possession has been settled in Arce v. Genato(supra). In answer
to the issue:
... whether the order of respondent Judge in an expropriation case allowing the other respondent, ... to
take immediate possession of the parcel of land sought to be condemned for the beautification of its
public plaza, without a prior hearing to determine the necessity for the exercise of the power of
eminent domain, is vitiated by jurisdictional defect, ...
this Court held that:
... It is not disputed that in issuing such order, respondent Judge relied on Presidential Decree No. 42
issued on the 9th of November, 1972. (Presidential Decree No. 42 is entitled "Authorizing the
Plaintiff in Eminent Domain Proceedings to Take Possession of the Property involved Upon
Depositing the Assessed Value for Purposes of Taxation.") The question as thus posed does not
occasion any difficulty as to the answer to be given. This petition for certiorari must fail, there being
no showing that compliance with the Presidential Decree, which under the Transitory Provisions is
deemed a part of the law of the land, (According to Article XVII, Section 3 par. (2) of the
Constitution: "All proclamations, orders, decrees, instructions and acts promulgated, issued, or done
by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding,
and effective even after lifting of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations. orders, decrees instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or repealed by the regular National
Assembly") would be characterized as either an act in excess of jurisdiction or a grave abuse of
discretion. So we rule.
Likewise in Ramos v. Philippine Tourism Authority (G.R. Nos. 52449-50, June 9, 1980), this Court held:
... condemnation or expropriation proceedings is in the nature of one that is quasi-in-rem wherein the
fact that the owner of the property is made a party is not essentially indispensable insofar was least as
it conncerns is the immediate taking of possession of the property and the preliminary determination
of its value, including the amount to be deposited.
In their last argument, the petitioners claim that a consequence of the expropriation proceedings would be their
forcible ejectment. They contend that such forcible ejectment is a criminal act under Presidential Decree No. 583. This
contention is not valid. Presidential Decree No. 583 prohibits the taking cognizance or implementation of orders
designed to obstruct the land reform program. It refers to the harassment of tenant- farmers who try to enforce
emancipation rights. It has nothing to do with the expropriation by the State of lands needed for public purposes. As a
matter of fact, the expropriated area does not appear in the master lists of the Ministry of Agrarian Reforms as a
teranted area. The petitioners' bare allegations have not been supported with particulars pointing to specific parcels
which are subject of tenancy contracts. The petitioners may be owner-tillers or may have some form of possessory or
ownership rights but there has been no showing of their being tenants on the disputed lands.
The petitioners have failed to overcome the burden of anyone trying to strike down a statute or decree whose avowed
purpose is the legislative perception is the public good. A statute has in its favor the presumption of validity. All
reasonable doubts should be resolved in favor of the constitutionality of a law. The courts will not set aside a law as
violative of the Constitution except in a clear case (People v. Vera, 65 Phil. 56). And in the absence of factual findings
or evidence to rebut the presumption of validity, the presumption prevails (Ermita-Malate Hotel, etc. v. Mayor of
Manila, 20 SCRA 849; Morfe v. Mutuc, 22 SCRA 424).
The public respondents have stressed that the development of the 808 hectares includes plans that would give the
petitioners and other displaced persons productive employment, higher incomes, decent housing, water and electric
facilities, and better living standards. Our dismissing this petition is, in part, predicated on those assurances. The right
of the PTA to proceed with the expropriation of the 282 hectares already Identified as fit for the establishment of a
resort complex to promote tourism is, therefore, sustained.
WHEREFORE, the instant petition for certiorari is hereby DISMISSE D for lack of merit.
SO ORDERED.
Fernando, C.J, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana, Escolin and Relova, JJ., concur.

Aquino, J, concurs in the result.

De Castro, J, is on leave.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. L-48685 September 30, 1987
LORENZO SUMULONG and EMILIA VIDANES-BALAOING, petitioners,
vs.
HON. BUENAVENTURA GUERRERO and NATIONAL HOUSING AUTHORITY, respondents.

CORTES, J.:
On December 5, 1977 the National Housing Authority (NIIA) filed a complaint for expropriation of parcels of land
covering approximately twenty five (25) hectares, (in Antipolo, Rizal) including the lots of petitioners Lorenzo
Sumulong and Emilia Vidanes-Balaoing with an area of 6,667 square meters and 3,333 square meters respectively.
The land sought to be expropriated were valued by the NHA at one peso (P1.00) per square meter adopting the market
value fixed by the provincial assessor in accordance with presidential decrees prescribing the valuation of property in
expropriation proceedings.
Together with the complaint was a motion for immediate possession of the properties. The NHA deposited the amount
of P158,980.00 with the Philippine National Bank, representing the "total market value" of the subject twenty five
hectares of land, pursuant to Presidential Decree No. 1224 which defines "the policy on the expropriation of private
property for socialized housing upon payment of just compensation."
On January 17, 1978, respondent Judge issued the following Order:
Plaintiff having deposited with the Philippine National Bank, Heart Center Extension Office,
Diliman, Quezon City, Metro Manila, the amount of P158,980.00 representing the total market value
of the subject parcels of land, let a writ of possession be issued.
SO ORDERED.
Pasig, Metro Manila, January 17, 1978.
(SGD) BUENAVENTURA
GUERRERO

S.

Judge
Petitioners filed a motion for reconsideration on the ground that they had been deprived of the possession of their
property without due process of law. This was however, denied.
Hence, this petition challenging the orders of respondent Judge and assailing the constitutionality of Pres. Decree No.
1224, as amended. Petitioners argue that:
1) Respondent Judge acted without or in excess of his jurisdiction or with grave abuse of discretion
by issuing the Order of January 17, 1978 without notice and without hearing and in issuing the Order
dated June 28, 1978 denying the motion for reconsideration.
2) Pres. Decree l224, as amended, is unconstitutional for being violative of the due process clause,
specifically:
a) The Decree would allow the taking of property regardless of size and no matter
how small the area to be expropriated;

b) "Socialized housing" for the purpose of condemnation proceeding, as defined in

said Decree, is not really for a public purpose;
c) The Decree violates procedural due process as it allows immediate taking of
possession, control and disposition of property without giving the owner his day in
court;
d) The Decree would allow the taking of private property upon payment of unjust
and unfair valuations arbitrarily fixed by government assessors;
e) The Decree would deprive the courts of their judicial discretion to determine what
would be the "just compensation" in each and every raise of expropriation.
Indeed, the exercise of the power of eminent domain is subject to certain limitations imposed by the constitution, to
wit:
Private property shall not be taken for public use without just compensation (Art. IV, Sec. 9);
No person shall be deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws (Art. IV, sec. 1).
Nevertheless, a clear case of constitutional infirmity has to be established for this Court to nullify legislative or
executive measures adopted to implement specific constitutional provisions aimed at promoting the general welfare.
Petitioners' objections to the taking of their property subsumed under the headings of public use, just compensation,
and due process have to be balanced against competing interests of the public recognized and sought to be served
under declared policies of the constitution as implemented by legislation.
1. Public use
a) Socialized Housing
Petitioners contend that "socialized housing" as defined in Pres. Decree No. 1224, as amended, for the purpose of
condemnation proceedings is not "public use" since it will benefit only "a handful of people, bereft of public
character."
"Socialized housing" is defined as, "the construction of dwelling units for the middle and lower class members of our
society, including the construction of the supporting infrastructure and other facilities" (Pres. Decree No. 1224, par. 1).
This definition was later expanded to include among others:
a) The construction and/or improvement of dwelling units for the middle and lower income groups of
the society, including the construction of the supporting infrastructure and other facilities;
b) Slum clearance, relocation and resettlement of squatters and slum dwellers as well as the provision
of related facilities and services;
c) Slum improvement which consists basically of allocating homelots to the dwellers in the area or
property involved, rearrangemeant and re-alignment of existing houses and other dwelling structures
and the construction and provision of basic community facilities and services, where there are none,
such as roads, footpaths, drainage, sewerage, water and power system schools, barangay centers,
community centers, clinics, open spaces, parks, playgrounds and other recreational facilities;
d) The provision of economic opportunities, including the development of commercial and industrial
estates and such other facilities to enhance the total community growth; and
e) Such other activities undertaken in pursuance of the objective to provide and maintain housing for
the greatest number of people under Presidential Decree No, 757, (Pres. Decree No. 1259, sec. 1)
The "public use" requirement for a and exercise of the power of eminent domain is a flexible and evolving concept
influenced by changing conditions. In this jurisdiction, the statutory and judicial trend has been summarized as
follows:
The taking to be valid must be for public use. There was a time when it was felt that a literal meaning
should be attached to such a requirement. Whatever project is undertaken must be for the public to
enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable. It is not anymore.

As long as the purpose of the taking is public, then the power of eminent domain comes into play. As
just noted, the constitution in at least two cases, to remove any doubt, determines what is public use.
One is the expropriation of lands to be subdivided into small lots for resale at cost to individuals. The
other is in the transfer, through the exercise of this power, of utilities and other private enterprise to
the government. It is accurate to state then that at present whatever may be beneficially employed for
the general welfare satisfies the requirement of public use [Heirs of Juancho Ardona v. Reyes, G.R.
Nos. 60549, 60553-60555 October 26, 1983, 125 SCRA 220 (1983) at 234-5 quoting E.
FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 523-4, (2nd ed., 1977) Emphasis
supplied].
The term "public use" has acquired a more comprehensive coverage. To the literal import of the term signifying strict
use or employment by the public has been added the broader notion of indirect public benefit or advantage. As
discussed in the above cited case of Heirs of Juancho Ardona:
The restrictive view of public use may be appropriate for a nation which circumscribes the scope of
government activities and public concerns and which possesses big and correctly located public lands
that obviate the need to take private property for public purposes. Neither circumstance applies to the
Philippines. We have never been a laissez faire State. And the necessities which impel the exertion of
sovereign power are all too often found in areas of scarce public land or limited government
resources. (p. 231)
Specifically, urban renewal or redevelopment and the construction of low-cost housing is recognized as a public
purpose, not only because of the expanded concept of public use but also because of specific provisions in the
Constitution. The 1973 Constitution made it incumbent upon the State to establish, maintain and ensure adequate
social services including housing [Art. 11, sec. 7]. The 1987 Constitution goes even further by providing that:
The State shall promote a just and dynamic social order that will ensure the prosperity and
independence of the nation and free the people from poverty through policies that provide adequate
social services, promote full employment, a rising standard of living and an improved quality of life
for all. [Art. II, sec. 9]
The state shall by law, and for the common good, undertake, in cooperation with the private sector, a
continuing program of urban land reform and housing which will make available at affordable cost
decent housing and basic services to underprivileged and homeless citizens in urban centers and
resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the
implementation of such program the State shall respect the rights of small property owners. (Art.
XIII, sec. 9, Emphaisis supplied)
Housing is a basic human need. Shortage in housing is a matter of state concern since it directly and significantly
affects public health, safety, the environment and in sum, the general welfare. The public character of housing
measures does not change because units in housing projects cannot be occupied by all but only by those who satisfy
prescribed qualifications. A beginning has to be made, for it is not possible to provide housing for are who need it, all
at once.
Population growth, the migration to urban areas and the mushrooming of crowded makeshift dwellings is a worldwide
development particularly in developing countries. So basic and urgent are housing problems that the United Nations
General Assembly proclaimed 1987 as the "International Year of Shelter for the Homeless" "to focus the attention of
the international community on those problems". The General Assembly is Seriously concerned that, despite the
efforts of Governments at the national and local levels and of international organizations, the driving conditions of the
majority of the people in slums and squatter areas and rural settlements, especially in developing countries, continue
to deteriorate in both relative and absolute terms." [G.A. Res. 37/221, Yearbook of the United Nations 1982, Vol. 36,
p. 1043-4]
In the light of the foregoing, this Court is satisfied that "socialized housing" fans within the confines of "public use". It
is, particularly important to draw attention to paragraph (d) of Pres. Dec. No. 1224 which opportunities inextricably
linked with low-cost housing, or slum clearance, relocation and resettlement, or slum improvement emphasize the
public purpose of the project.
In the case at bar, the use to which it is proposed to put the subject parcels of land meets the requisites of "public use".
The lands in question are being expropriated by the NHA for the expansion of Bagong Nayon Housing Project to

provide housing facilities to low-salaried government employees. Quoting respondents:

1. The Bagong Nayong Project is a housing and community development undertaking of the National
Housing Authority. Phase I covers about 60 hectares of GSIS property in Antipolo, Rizal; Phase II
includes about 30 hectares for industrial development and the rest are for residential housing
development.
It is intended for low-salaried government employees and aims to provide housing and community
services for about 2,000 families in Phase I and about 4,000 families in Phase II.
It is situated on rugged terrain 7.5 kms. from Marikina Town proper; 22 Kms. east of Manila; and is
within the Lungs Silangan Townsite Reservation (created by Presidential Proclamation No. 1637 on
April 18, 1977).
The lands involved in the present petitions are parts of the expanded/additional areas for the Bagong
Nayon Project totalling 25.9725 hectares. They likewise include raw, rolling hills. (Rollo, pp. 266-7)
The acute shortage of housing units in the country is of public knowledge. Official data indicate that more than one
third of the households nationwide do not own their dwelling places. A significant number live in dwellings of
unacceptable standards, such as shanties, natural shelters, and structures intended for commercial, industrial, or
agricultural purposes. Of these unacceptable dwelling units, more than one third is located within the National Capital
Region (NCR) alone which lies proximate to and is expected to be the most benefited by the housing project involved
in the case at bar [See, National Census and Statistics Office, 1980 Census of Population and Housing].
According to the National Economic and Development Authority at the time of the expropriation in question, about
"50 per cent of urban families, cannot afford adequate shelter even at reduced rates and will need government support
to provide them with social housing, subsidized either partially or totally" [NEDA, FOUR YEAR DEVELOPMENT
PLAN For 1974-1977, p. 357]. Up to the present, housing some remains to be out of the reach of a sizable proportion
of the population" [NEDA, MEDIUM-TERM PHILIPPINE DEVELOPMENT PLAN 1987-1992, p. 240].
The mushrooming of squatter colonies in the Metropolitan Manila area as well as in other cities and centers of
population throughout the country, and, the efforts of the government to initiate housing and other projects are matters
of public knowledge [See NEDA, FOUR YEAR DEVELOPMENT PLAN For 1974-1977, pp. 357-361; NEDA,
FIVE-YEAR PHILIPPINE DEVELOPMENT PLAN 1978-1982, pp. 215-228 NEDA, FIVE YEAR PHILIPPINE
DEVELOPMENT PLAN 1983-1987, pp. 109-117; NEDA, MEDIUM TERM PHILIPPINE DEVELOPMENT PLAN
1987-1992, pp. 240-254].
b) Size of Property
Petitioners further contend that Pres. Decree 1224, as amended, would allow the taking of "any private land"
regardless of the size and no matter how small the area of the land to be expropriated. Petitioners claim that "there are
vast areas of lands in Mayamot, Cupang, and San Isidro, Antipolo, Rizal hundred of hectares of which are owned by a
few landowners only. It is surprising [therefore] why respondent National Housing Authority [would] include [their]
two man lots ..."
In J.M. Tuason Co., Inc. vs. Land Tenure Administration [G. R. No. L-21064, February 18, 1970, 31 SCRA 413
(1970) at 428] this Court earlier ruled that expropriation is not confined to landed estates. This Court, quoting the
dissenting opinion of Justice J.B.L. Reyes in Republic vs. Baylosis, [96 Phil. 461 (1955)], held that:
The propriety of exercising the power of eminent domain under Article XIII, section 4 of our
Constitution cannot be determined on a purely quantitative or area basis. Not only does the
constitutional provision speak of lands instead of landed estates, but I see no cogent reason why the
government, in its quest for social justice and peace, should exclusively devote attention to conflicts
of large proportions, involving a considerable number of individuals, and eschew small controversies
and wait until they grow into a major problem before taking remedial action.
The said case of J.M. Tuason Co., Inc. departed from the ruling in Guido vs. Rural Progress Administration [84 Phil.
847 (1949)] which held that the test to be applied for a valid expropriation of private lands was the area of the land
and not the number of people who stood to be benefited. Since then "there has evolved a clear pattern of adherence to
the "number of people to be benefited test" " [Mataas na Lupa Tenants Association, Inc. v. Dimayuga, G.R. No.
32049, June 25,1984, 130 SCRA 30 (1984) at 39]. Thus, in Pulido vs. Court of Appeals [G.R. No. 57625, May 3,
1983, 122 SCRA 63 (1983) at 73], this Court stated that, "[i]t is unfortunate that the petitioner would be deprived of

his landholdings, but his interest and that of his family should not stand in the way of progress and the benefit of the
greater may only of the inhabitants of the country."
The State acting through the NHA is vested with broad discretion to designate the particular property/properties to be
taken for socialized housing purposes and how much thereof may be expropriated. Absent a clear showing of fraud,
bad faith, or gross abuse of discretion, which petitioners herein failed to demonstrate, the Court will give due weight
to and leave undisturbed the NHA's choice and the size of the site for the project. The property owner may not
interpose objections merely because in their judgment some other property would have been more suitable, or just as
suitable, for the purpose. The right to the use, enjoyment and disposal of private property is tempered by and has to
yield to the demands of the common good. The Constitutional provisions on the subject are clear:
The State shall promote social justice in all phases of national development. (Art. II, sec. 10)
The Congress shall give highest priority to the enactment of measures that protect and enhance the
right of all the people to human dignity, reduce social, economic, and political inequalities, and
remove cultural inequities by equitably diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use and disposition of property and its
increments. (Art, XIII, sec. 1)
Indeed, the foregoing provisions, which are restatements of the provisions in the 1935 and 1973 Constitutions,
emphasize:
...the stewardship concept, under which private property is supposed to be held by the individual only
as a trustee for the people in general, who are its real owners. As a mere steward, the individual must
exercise his rights to the property not for his own exclusive and selfish benefit but for the good of the
entire community or nation [Mataas na Lupa Tenants Association, Inc. supra at 42-3 citing I. CRUZ,
PHILIPPINE POLITICAL LAW, 70 (1983 ed.)].
2. Just Compensation
Petitioners maintain that Pres. Decree No. 1224, as amended, would allow the taking of private property upon
payment of unjust and unfair valuations arbitrarily fixed by government assessors. In addition, they assert that the
Decree would deprive the courts of their judicial discretion to determine what would be "just compensation".
The foregoing contentions have already been ruled upon by this Court in the case of Ignacio vs. Guerrero (G.R. No.
L-49088, May 29, 1987) which, incidentally, arose from the same expropriation complaint that led to this instant
petition. The provisions on just compensation found in Presidential Decree Nos. 1224, 1259 and 1313 are the same
provisions found in Presidential Decree Nos. 76, 464, 794 and 1533 which were declared unconstitutional in Export
Processing Zone All thirty vs. Dulay (G.R. No. 5960 April 29, 1987) for being encroachments on prerogatives.
This Court abandoned the ruling in National Housing Authority vs. Reyes [G.R. No. 49439, June 29,1983, 123 SCRA
245 (1983)] which upheld Pres. Decree No. 464, as amended by - Presidential Decree Nos. 794, 1224 and 1259.
In said case of Export Processing Zone Authority, this Court pointed out that:
The basic unfairness of the decrees is readily apparent.
Just compensation means the value of the property at the time of the taking. It means a fair and full
equivalent for the loss sustained. ALL the facts as to the condition of the property and its
surroundings, its improvements and capabilities, should be considered.
xxx xxx xxx
Various factors can come into play in the valuation of specific properties singled out for
expropriation. The values given by provincial assessors are usually uniform for very wide areas
covering several barrios or even an entire total with the exception of the poblacion. Individual
differences are never taken into account. The value of land is based on such generalities as its
possible cultivation for rice, corn, coconuts, or other crops. Very often land described as directional
has been cultivated for generations. Buildings are described in terms of only two or three classes of
building materials and estimates of areas are more often inaccurate than correct. Tax values can serve
as guides but cannot be absolute substitutes for just compensation.
To say that the owners are estopped to question the valuations made by assessors since they had the

opportunity to protest is illusory. The overwhelming mass of landowners accept unquestioningly

what is found in the tax declarations prepared by local assessors or municipal clerks for them. They
do not even look at, much less analyze, the statements. The Idea of expropriation simply never occurs
until a demand is made or a case filed by an agency authorized to do so. (pp. 12-3)
3. Due Process
Petitioners assert that Pres. Decree 1224, as amended, violates procedural due process as it allows immediate taking of
possession, control and disposition of property without giving the owner his day in court. Respondent Judge ordered
the issuance of a writ of possession without notice and without hearing.
The constitutionality of this procedure has also been ruled upon in the Export Processing Zone Authority case, viz:
It is violative of due process to deny to the owner the opportunity to prove that the valuation in the
tax documents is unfair or wrong. And it is repulsive to basic concepts of justice and fairness to allow
the haphazard work of minor bureaucrat or clerk to absolutely prevail over the judgment of a court
promulgated only after expert commissioners have actually viewed the property, after evidence and
arguments pro and con have been presented, and after all factors and considerations essential to a fair
and just determination have been judiciously evaluated. (p. 13)
On the matter of the issuance of a writ of possession, the ruling in the Ignacio case is reiterated, thus:
[I]t is imperative that before a writ of possession is issued by the Court in expropriation proceedings,
the following requisites must be met: (1) There must be a Complaint for expropriation sufficient in
form and in substance; (2) A provisional determination of just compensation for the properties sought
to be expropriated must be made by the trial court on the basis of judicial (not legislative or
executive) discretion; and (3) The deposit requirement under Section 2, Rule 67 must be complied
with. (p. 14)
This Court holds that "socialized housing" defined in Pres. Decree No. 1224, as amended by Pres. Decree Nos. 1259
and 1313, constitutes "public use" for purposes of expropriation. However, as previously held by this Court, the
provisions of such decrees on just compensation are unconstitutional; and in the instant case the Court finds that the
Orders issued pursuant to the corollary provisions of those decrees authorizing immediate taking without notice and
hearing are violative of due process.
WHEREFORE, the Orders of the lower court dated January 17, 1978 and June 28, 1978 issuing the writ of possession
on the basis of the market value appearing therein are annulled for having been issued in excess of jurisdiction. Let
this case be remanded to the court of origin for further proceedings to determine the compensation the petitioners are
entitled to be paid. No costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin and Sarmiento, JJ., concur.