EMINENT DOMAIN
respect the determination by the publisher and/or editors of the
1. Exercise of the Power of Eminent Domain
G.R. No. L-119694 May 22, 1995
PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of 139
members, represented by its President, Amado P. Macasaet and its
Executive Director Ermin F. Garcia, Jr., petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
FELICIANO, J.:
The Philippine Press Institute, Inc. ("PPI") is before this Court assailing
the constitutional validity of Resolution No. 2772 issued by respondent
Commission on Elections ("Comelec") and its corresponding Comelec
directive dated 22 March 1995, through a Petition for Certiorari and
Prohibition. Petitioner PPI is a non-stock, non-profit organization of
newspaper and magazine publishers.
On 2 March 1995, Comelec promulgated Resolution No. 2772, which
reads in part:
xxx xxx xxx
Sec. 2. Comelec Space. The Commission shall procure free print
space of not less than one half (1/2) page in at least one newspaper of
general circulation in every province or city for use as "Comelec
Space" from March 6, 1995 in the case of candidates for senator and from
March 21, 1995 until May 12, 1995. In the absence of said newspaper,
"Comelec Space" shall be obtained from any magazine or periodical of
said province or city.
Sec. 3. Uses of Comelec Space. "Comelec Space" shall be allocated by
the Commission, free of charge, among all candidates within the area in
which the newspaper, magazine or periodical is circulated to enable the
candidates to make known their qualifications, their stand on public
issues and their platforms and programs of government.
"Comelec Space" shall also be used by the Commission for dissemination
of vital election information.
Sec. 4. Allocation of Comelec Space. (a) "Comelec Space" shall also
be available to all candidates during the periods stated in Section 2
hereof. Its allocation shall be equal and impartial among all candidates
for the same office. All candidates concerned shall be furnished a copy of
the allocation of "Comelec Space" for their information, guidance and
compliance.
(b) Any candidate desiring to avail himself of "Comelec Space" from
newspapers or publications based in the Metropolitan Manila Area shall
submit an application therefor, in writing, to the Committee on Mass
Media of the Commission. Any candidate desiring to avail himself of
"Comelec Space" in newspapers or publications based in the provinces
shall submit his application therefor, in writing, to the Provincial Election
Supervisor concerned. Applications for availment of "Comelec Space"
maybe filed at any time from the date of effectivity of this Resolution.
(c) The Committee on Mass Media and the Provincial Election
Supervisors shall allocate available "Comelec Space" among the
candidates concerned by lottery of which said candidates shall be
notified in advance, in writing, to be present personally or by
representative to witness the lottery at the date, time and place specified
in the notice. Any party objecting to the result of the lottery may appeal
to the Commission.
(d) The candidates concerned shall be notified by the Committee on Mass
Media or the Provincial Election Supervisor, as the case maybe,
sufficiently in advance and in writing of the date of issue and the
newspaper or publication allocated to him, and the time within which he
must submit the written material for publication in the "Comelec Space".
xxx xxx xxx
Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers.
No newspaper or publication shall allow to be printed or published in
the news, opinion, features, or other sections of the newspaper or
publication accounts or comments which manifestly favor or oppose any
candidate or political party by unduly or repeatedly referring to or
including therein said candidate or political party. However, unless the
facts and circumstances clearly indicate otherwise, the Commission will
newspapers or publications that the accounts or views published are
significant, newsworthy and of public interest. (Emphasis supplied)
Apparently in implementation of this Resolution, Comelec through
Commissioner Regalado E. Maambong sent identical letters, dated 22
March 1995, to various publishers of newspapers like the Business
World, the Philippine Star, the Malaya and the Philippine Times
Journal, all members of PPI. These letters read as follows:
This is to advise you that pursuant to Resolution No. 2772 of the
Commission on Elections, you are directed to provide free print space of
not less than one half (1/2) page for use as "Comelec Space" or similar to
the print support which you have extended during the May 11, 1992
synchronized elections which was 2 full pages for each political party
fielding senatorial candidates, from March 6, 1995 to May 6, 1995, to
make known their qualifications, their stand on public issues and their
platforms and programs of government.
We shall be informing the political parties and candidates to submit
directly to you their pictures, biographical data, stand on key public
issues and platforms of government either as raw data or in the form
of positives or camera-ready materials.
Please be reminded that the political parties/candidates may be
accommodated in your publication any day upon receipt of their materials
until May 6, 1995 which is the last day for campaigning.
We trust you to extend your full support and cooperation in this regard.
(Emphasis supplied)
In this Petition for Certiorari and Prohibition with prayer for the issuance
of a Temporary Restraining Order, PPI asks us to declare Comelec
Resolution No. 2772 unconstitutional and void on the ground that it
violates the prohibition imposed by the Constitution upon the
government, and any of its agencies, against the taking of private property
for public use without just compensation. Petitioner also contends that
the 22 March 1995 letter directives of Comelec requiring publishers to
give free "Comelec Space" and at the same time process raw data to make
it camera-ready, constitute impositions of involuntary servitude, contrary
to the provisions of Section 18 (2), Article III of the 1987 Constitution.
Finally, PPI argues that Section 8 of Comelec Resolution No. 2772 is
violative of the constitutionally guaranteed freedom of speech, of the
press and of expression.1
On 20 April 1995, this Court issued a Temporary Restraining Order
enjoining Comelec from enforcing and implementing Section 2 of
Resolution No. 2772, as well as the Comelec directives addressed to
various print media enterprises all dated 22 March 1995. The Court also
required the respondent to file a Comment on the Petition.
The Office of the Solicitor General filed its Comment on behalf of
respondent Comelec alleging that Comelec Resolution No. 2772
does not impose upon the publishers any obligation to provide free print
space in the newspapers as it does not provide any criminal or
administrative sanction for non-compliance with that Resolution.
According to the Solicitor General, the questioned Resolution merely
established guidelines to be followed in connection with the procurement
of "Comelec space," the procedure for and mode of allocation of such
space to candidates and the conditions or requirements for the candidate's
utilization of the "Comelec space" procured. At the same time, however,
the Solicitor General argues that even if the questioned Resolution and its
implementing letter directives are viewed as mandatory, the same would
nevertheless be valid as an exercise of the police power of the State. The
Solicitor General also maintains that Section 8 of Resolution No. 2772 is
a permissible exercise of the power of supervision or regulation of the
Comelec over the communication and information operations of print
media enterprises during the election period to safeguard and ensure a
fair, impartial and credible election.2
At the oral hearing of this case held on 28 April 1995, respondent
Comelec through its Chairman, Hon. Bernardo Pardo, in response to
inquiries from the Chief Justice and other Members of the Court, stated
that Resolution No. 2772, particularly Section 2 thereof and the 22 March
1995 letters dispatched to various members of petitioner PPI,
were not intended to compel those members to supply Comelec with free
print space. Chairman Pardo represented to the Court that Resolution and
the related letter-directives were merely designed to solicit from the
publishers the same free print space which many publishers had
voluntarily given to Comelec during the election period relating to the 11
May 1992 elections. Indeed, the Chairman stated that the Comelec
would, that very afternoon, meet and adopt an appropriate amending or
clarifying resolution, a certified true copy of which would forthwith be
filed with the Court.
On 5 May 1995, the Court received from the Office of the Solicitor
General a manifestation which attached a copy of Comelec Resolution
No. 2772-A dated 4 May 1995. The operative portion of this Resolution
follows:
NOW THEREFORE, pursuant to the powers vested in it by the
Constitution, the Omnibus Election Code, Republic Acts No. 6646 and
7166 and other election laws, the Commission on Elections RESOLVED
to clarify Sections 2 and 8 of Res. No. 2772 as follows:
1. Section 2 of Res. No. 2772 shall not be construed to mean as requiring
publishers of the different mass media print publications to provide print
space under pain of prosecution, whether administrative, civil or
criminal, there being no sanction or penalty for violation of said Section
provided for either in said Resolution or in Section 90 of Batas Pambansa
Blg. 881, otherwise known as the Omnibus Election Code, on the grant
of "Comelec space."
2. Section 8 of Res. No. 2772 shall not be construed to mean as
constituting prior restraint on the part of publishers with respect to the
printing or publication of materials in the news, opinion, features or other
sections of their respective publications or other accounts or comments,
it being clear from the last sentence of said Section 8 that the Commission
shall, "unless the facts and circumstances clearly indicate otherwise . .
. respect the determination by the publisher and/or editors of the
newspapers or publications that the accounts or views published are
significant, newsworthy and of public interest."
This Resolution shall take effect upon approval. (Emphasis in the
original)
While, at this point, the Court could perhaps simply dismiss the Petition
for Certiorari and Prohibition as having become moot and academic, we
consider it not inappropriate to pass upon the first constitutional issue
raised in this case. Our hope is to put this issue to rest and prevent its
resurrection.
Section 2 of Resolution No. 2772 is not a model of clarity in expression.
Section 1 of Resolution No. 2772-A did not try to redraft Section 2;
accordingly, Section 2 of Resolution No. 2772 persists in its original
form. Thus, we must point out that, as presently worded, and in particular
as interpreted and applied by the Comelec itself in its 22 March 1995
letter-directives to newspaper publishers, Section 2 of Resolution No.
2772 is clearly susceptible of the reading that petitioner PPI has given it.
That Resolution No. 2772 does not, in express terms, threaten publishers
who would disregard it or its implementing letters with some criminal or
other sanction, does not by itself demonstrate that the Comelec's original
intention was simply to solicit or request voluntary donations of print
space from publishers. A written communication officially directing a
print media company to supply free print space, dispatched by a
government (here a constitutional) agency and signed by a member of the
Commission presumably legally authorized to do so, is bound to produce
a coercive effect upon the company so addressed. That the agency may
not be legally authorized to impose, or cause the imposition of, criminal
or other sanctions for disregard of such directions, only aggravates the
constitutional difficulties inhearing in the present situation. The
enactment or addition of such sanctions by the legislative authority itself
would be open to serious constitutional objection.
To compel print media companies to donate "Comelec-space" of the
dimensions specified in Section 2 of Resolution No. 2772 (not less than
one-half page), amounts to "taking" of private personal property for
public use or purposes. Section 2 failed to specify the
intended frequency of such compulsory "donation:" only once during the
period from 6 March 1995 (or 21 March 1995) until 12 May 1995? or
everyday or once a week? or as often as Comelec may direct during the
same period? The extent of the taking or deprivation is not insubstantial;
this is not a case of a de minimistemporary limitation or restraint upon
the use of private property. The monetary value of the compulsory
"donation," measured by the advertising rates ordinarily charged by
newspaper publishers whether in cities or in non-urban areas, may be
very substantial indeed.
The taking of print space here sought to be effected may first be appraised
under the rubric of expropriation of private personal property for public
use. The threshold requisites for a lawful taking of private property for
public use need to be examined here: one is the necessity for the taking;
another is the legal authority to effect the taking. The element of necessity
for the taking has not been shown by respondent Comelec. It has not been
suggested that the members of PPI are unwilling to sell print space at
their normal rates to Comelec for election purposes. Indeed, the
unwillingness or reluctance of Comelec to buy print space lies at the heart
of the problem. 3 Similarly, it has not been suggested, let alone
demonstrated, that Comelec has been granted the power of eminent
domain either by the Constitution or by the legislative authority. A
reasonable relationship between that power and the enforcement and
administration of election laws by Comelec must be shown; it is not
casually to be assumed.
That the taking is designed to subserve "public use" is not contested by
petitioner PPI. We note only that, under Section 3 of Resolution No.
2772, the free "Comelec space" sought by the respondent Commission
would be used not only for informing the public about the identities,
qualifications and programs of government of candidates for elective
office but also for "dissemination of vital election information"
(including, presumably, circulars, regulations, notices, directives, etc.
issued by Comelec). It seems to the Court a matter of judicial notice that
government offices and agencies (including the Supreme Court) simply
purchase print space, in the ordinary course of events, when their rules
and regulations, circulars, notices and so forth need officially to be
brought to the attention of the general public.
The taking of private property for public use is, of course, authorized by
the Constitution, but not without payment of "just compensation" (Article
III, Section 9). And apparently the necessity of paying compensation for
"Comelec space" is precisely what is sought to be avoided by respondent
Commission, whether Section 2 of Resolution No. 2772 is read as
petitioner PPI reads it, as an assertion of authority to require newspaper
publishers to "donate" free print space for Comelec purposes, or as an
exhortation, or perhaps an appeal, to publishers to donate free print space,
as Section 1 of Resolution No. 2772-A attempts to suggest. There is
nothing at all to prevent newspaper and magazine publishers from
voluntarily giving free print space to Comelec for the purposes
contemplated in Resolution No. 2772. Section 2 of Resolution No. 2772
does not, however, provide a constitutional basis for compelling
publishers, against their will, in the kind of factual context here present,
to provide free print space for Comelec purposes. Section 2 does not
constitute a valid exercise of the power of eminent domain.
We would note that the ruling here laid down by the Court is entirely in
line with the theory of democratic representative government. The
economic costs of informing the general public about the qualifications
and programs of those seeking elective office are most appropriately
distributed as widely as possible throughout our society by the utilization
of public funds, especially funds raised by taxation, rather than cast solely
on one small sector of society, i.e., print media enterprises. The benefits
which flow from a heightened level of information on and the awareness
of the electoral process are commonly thought to be community-wide;
the burdens should be allocated on the same basis.
As earlier noted, the Solicitor General also contended that Section 2 of
Resolution No. 2772, even if read as compelling publishers to "donate"
"Comelec space, " may be sustained as a valid exercise of the police
power of the state. This argument was, however, made too casually to
require prolonged consideration on our part. Firstly, there was no effort
(and apparently no inclination on the part of Comelec) to show that the
police power essentially a power of legislation has been
constitutionally delegated to respondent Commission.4 Secondly, while
private property may indeed be validly taken in the legitimate exercise of
the police power of the state, there was no attempt to show compliance
in the instant case with the requisites of a lawful taking under the police
power. 5
Section 2 of Resolution No. 2772 is a blunt and heavy instrument that
purports, without a showing of existence of a national emergency or other
imperious public necessity, indiscriminately and without regard to the
individual business condition of particular newspapers or magazines
located in differing parts of the country, to take private property of
newspaper or magazine publishers. No attempt was made to demonstrate
that a real and palpable or urgent necessity for the taking of print space
confronted the Comelec and that Section 2 of Resolution No. 2772 was
itself the only reasonable and calibrated response to such necessity
available to the Comelec. Section 2 does not constitute a valid exercise
of the police power of the State.
We turn to Section 8 of Resolution No. 2772, which needs to be quoted
in full again:
Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers.
No newspaper or publication shall allow to be printed or published in
the news, opinion, features, or other sections of the newspaper or
publication accounts or comments which manifestly favor or oppose any
candidate or political party by unduly or repeatedly referring to or
including therein said candidate or political party. However, unless the
facts and circumstances clearly indicate otherwise, the Commission will
respect the determination by the publisher and/or editors of the
newspapers or publications that the accounts or views published are
significant, newsworthy and of public interest.
It is not easy to understand why Section 8 was included at all in
Resolution No. 2772. In any case, Section 8 should be viewed in the
context of our decision in National Press Club v. Commission on
Elections. 6 There the Court sustained the constitutionality of Section 11
(b) of R.A. No. 6646, known as the Electoral Reforms Law of 1987,
which prohibits the sale or donation of print space and airtime for
campaign or other political purposes, except to the Comelec. In doing so,
the Court carefully distinguished (a) paid political advertisements which
are reached by the prohibition of Section 11 (b), from (b) the reporting
of news, commentaries and expressions of belief or opinion by reporters,
broadcasters, editors, commentators or columnists which fall outside the
scope of Section 11 (b) and which are protected by the constitutional
guarantees of freedom of speech and of the press:
Secondly, and more importantly, Section 11 (b) is limited in its scope of
application. Analysis of Section 11 (b) shows that it purports to apply
only to the purchase and sale, including purchase and sale disguised as a
donation, of print space and air time for campaign or other political
purposes. Section 11 (b) does not purport in any way to
restrict the reporting by newspapers or radio or television stations of
news or news-worthy events relating to candidates, their qualifications,
political parties and programs of government. Moreover, Section 11 (b)
does not reach commentaries and expressions of belief or opinion by
reporters or broadcaster or editors or commentators or columnists in
respect of candidates, their qualifications, and programs and so forth, so
long at least as such comments, opinions and beliefs are not in fact
advertisements for particular candidates covertly paid for. In sum,
Section 11 (b) is not to be read as reaching any report or commentary or
other coverage that, in responsible media, is not paid for by candidates
for political office. We read Section 11 (b) as designed to cover only paid
political advertisements of particular candidates.
The above limitation in scope of application of Section 11 (b) that it
does not restrict either the reporting of or the expression of belief or
opinion or comment upon the qualifications and programs and activities
of any and all candidates for office constitutes the critical distinction
which must be made between the instant case and that of Sanidad v.
Commission on Elections. . . . 7 (Citations omitted; emphasis supplied)
Section 8 of Resolution No. 2772 appears to represent the effort of the
Comelec to establish a guideline for implementation of the above-quoted
distinction and doctrine in National Press Club an effort not blessed with
evident success. Section 2 of Resolution No. 2772-A while possibly
helpful, does not add substantially to the utility of Section 8 of Resolution
No. 2772. The distinction between paid political advertisements on the
one hand and news reports, commentaries and expressions of belief or
opinion by reporters, broadcasters, editors, etc. on the other hand, can
realistically be given operative meaning only in actual cases or
controversies, on a case-to-case basis, in terms of very specific sets of
facts.
At all events, the Court is bound to note that PPI has failed to allege any
specific affirmative action on the part of Comelec designed to enforce or
implement Section 8. PPI has not claimed that it or any of its members
has sustained actual or imminent injury by reason of Comelec action
under Section 8. Put a little differently, the Court considers that the
precise constitutional issue here sought to be raised whether or not
Section 8 of Resolution No. 2772 constitutes a permissible exercise of
the Comelec's power under Article IX, Section 4 of the Constitution to
supervise or regulate the enjoyment or utilization of all franchise or
permits for the operation of media of communication or information
[for the purpose of ensuring] equal opportunity, time and space, and
the right of reply, including reasonable, equal rates therefore, for public
information campaigns and forums among candidates in connection with
the objective of holding free, orderly honest, peaceful and credible
elections
is not ripe for judicial review for lack of an actual case or controversy
involving, as the very lis mota thereof, the constitutionality of Section 8.
Summarizing our conclusions:
1. Section 2 of Resolution No. 2772, in its present form and as interpreted
by Comelec in its 22 March 1995 letter directives, purports to require
print media enterprises to "donate" free print space to Comelec. As such,
Section 2 suffers from a fatal constitutional vice and must be set aside
and nullified.
2. To the extent it pertains to Section 8 of Resolution No. 2772, the
Petition for Certiorari and Prohibition must be dismissed for lack of an
actual, justiciable case or controversy.
WHEREFORE, for all the foregoing, the Petition for Certiorari and
Prohibition is GRANTED in part and Section 2 of Resolution No. 2772
in its present form and the related letter-directives dated 22 March 1995
are hereby SET ASIDE as null and void, and the Temporary Restraining
Order is hereby MADE PERMANENT. The Petition is DISMISSED in
part, to the extent it relates to Section 8 of Resolution No. 2772. No
pronouncement as to costs.
3. Public Use
[G.R. No. 147511. January 20, 2003]
MARINA Z. REYES; ALFREDO A. FRANCISCO; ANGELITA Z.
GARCIA; ALFREDO Z. FRANCISCO, JR; ARMANDO Z.
FRANCISCO; ALMA C. FRANCISCO; EUGENIA Z. LUNA;
CLARITA Z. ZABALLERO, LEONARDO Z. ZABALLERO, JR,
and TEODORO Z. ZABALLERO, in substitution of LEONARDO
M. ZABALLERO; AUGUSTO M. ZABALLERO; FRINE A.
ZABALLERO; ELENA FRONDA ZABALLERO; VICTOR
GREGORIO F. ZABALLERO; MARIA ELENA F. ZABALLERO;
LOURDES ZABALLERO-LAVA; SOCORRO EMILIA
ZABALLERO-YAP; and TERESITA F. ZABALLERO, petitioners,
vs. NATIONAL HOUSING AUTHORITY, respondent.
DECISION
PUNO, J.:
This is an appeal by certiorari from the decision of the Court of Appeals
in CA-GR CV No. 51641 dated September 29, 2000[1] affirming the
judgment of the Regional Trial Court of Quezon City, Branch 79 which
dismissed the complaint for forfeiture of rights filed by herein petitioners,
as well as the Resolution dated March 13, 2001 denying petitioners
motion for reconsideration.
Records show that in 1977, respondent National Housing Authority
(NHA) filed separate complaints for the expropriation of sugarcane lands,
particularly Lot Nos. 6450, 6448-E, 6198-A and 6199 of the cadastral
survey of Dasmarias, Cavite belonging to the petitioners, before the then
Court of First Instance of Cavite, and docketed as Civil Case Nos. T.G.-
392, T.G.-396 and T.G.-417. The stated public purpose of the
expropriation was the expansion of the Dasmarias Resettlement Project
to accommodate the squatters who were relocated from the Metropolitan
Manila area. The trial court rendered judgment ordering the expropriation
of these lots and the payment of just compensation. This was affirmed by
the Supreme Court in a decision rendered on October 29, 1987 in the case
of NHA vs. Zaballero[2] and which became final on November 26,
1987.[3]
On February 24, 1989, the expropriation court (now Branch 18, Regional
Trial Court of Tagaytay City) issued an Order[4] the dispositive portion
of which reads:
WHEREFORE, and resolving thus, let an Alias Writ of Execution be
immediately issued and that:
(1) The Register of Deeds of the Province of Cavite is hereby ordered to
transfer, in the name of the plaintiff National Housing Authority, the
following:
(a) Transfer Certificate No. RT-638 containing an area of 79,167 square
meters situated in Barrio Bangkal, Dasmarias, Cavite;
(b) Transfer Certificate of Title No. T-55702 containing an area of 20,872
square meters situated in Barrio Bangkal, Dasmarias, Cavite;
(c) Transfer Certificate of Title No. RT-639 and RT-4641 covering Lot
Nos. 6198-A and 6199 with an aggregate area of 159,985 square meters
also situated in Barrio Bangkal, Dasmarias, Cavite.
(2) Plaintiff National Housing Authority is likewise hereby ordered,
under pain of contempt, to immediately pay the defendants, the amounts
stated in the Writ of Execution as the adjudicated compensation of their
expropriated properties, which process was received by it according to
the records, on September 26, 1988, segregating therefrom, and in
separate check, the lawyers fees in favor of Atty. Bobby P. Yuseco, in
the amount of P322,123.05, as sustained by their contract as gleaned from
the records, with no other deduction, paying on its own (NHA) account,
the necessary legal expenses incident to the registration or issuance of
new certificates of title, pursuant to the provisions of the Property
Registration Law (PD 1529);
(3) Defendants, however, are directed to pay the corresponding capital
gains tax on the subject properties, directing them additionally, to
coordinate with the plaintiff NHA in this regard, in order to facilitate the
termination of this case, put an end to this controversy and consign the
same to its final rest.
For the alleged failure of respondent NHA to comply with the above
order, petitioners filed on April 28, 1992 a complaint[5] for forfeiture of
rights before the Regional Trial Court of Quezon City, Branch 79, in Civil
Case No. Q-92-12093. They alleged that respondent NHA had not
relocated squatters from the Metropolitan Manila area on the
expropriated lands in violation of the stated public purpose for
expropriation and had not paid the just compensation fixed by the
court. They prayed that respondent NHA be enjoined from disposing and
alienating the expropriated properties and that judgment be rendered
forfeiting all its rights and interests under the expropriation judgment. In
its Answer,[6] respondent NHA averred that it had already paid a
substantial amount to herein petitioners and that the expropriation
judgment could not be executed in view of several issues raised by
respondent NHA before the expropriation court (now Branch 18, RTC,
Tagaytay City) concerning capital gains tax, registration fees and other
expenses for the transfer of title to respondent NHA, as well as the claims
for attorneys fees of Atty. Joaquin Yuseco, Jr., collaborating counsel for
petitioners.
Ocular inspections[7] conducted by the trial court on the subject properties
show that:
1. 80% of Lot No. 6198-A with an area of 120,146 square meters is
already occupied by relocatees whose houses are made of light materials
with very few houses partly made of hollow blocks. The relocatees were
relocated only on (sic) March of 1994;
2. Most of the area covered by Lot No. 2075 is almost occupied by houses
and structures, most of which are made of concrete materials. These
houses are not being occupied by squatters relocated to the said lot by the
defendant NHA;
3. Lot No. 6199 is also occupied by concrete houses and structures but
likewise there are no relocatees in said lot. A large area of the same is
still unoccupied.
On September 29, 1995, the trial court rendered judgment dismissing the
complaint. Finding that the failure of respondent NHA to pay just
compensation and of petitioners to pay capital gains tax are both
unjustified and unreasonable, the trial court held that: (1) respondent
NHA is not deemed to have abandoned the public purpose for which the
subject properties were expropriated because the relocation of squatters
involves a long and tedious process. It ruled that respondent NHA
actually pursued the public purpose of the expropriation when it entered
into a contract with Arceo C. Cruz involving the construction of low cost
housing on the expropriated lots to be sold to qualified low income
beneficiaries; (2) there is no condition imposed in the expropriation
judgment that the subject properties shall revert back to its original
owners in case the purpose of expropriation is terminated or abandoned;
(3) the payment of just compensation is independent of the obligation of
herein petitioners to pay capital gains tax; and (4) in the payment of just
compensation, the basis should be the value at the time the property was
taken. On appeal, the Court of Appeals affirmed the decision of the trial
court.
Petitioners are now before us raising the following assignment of errors:
1. The Honorable Court of Appeals had decided a question of substance
not in accord with justice and equity when it ruled that, as the judgment
of the expropriation court did not contain a condition that should the
expropriated property be not used for the intended purpose it would revert
to the condemnee, the action to declare the forfeiture of rights under the
expropriation judgment can not prosper;
2. The Honorable Court of Appeals decided a question of substance not
in accord with jurisprudence, justice and equity when it ruled that the
non-payment is not a ground for forfeiture;
3. The Honorable Court of Appeals erred in not declaring the judgment
of expropriation forfeited in light of the failure of respondent to use the
expropriated property for the intended purpose but for a totally different
purpose.
The petition is not impressed with merit.
Petitioners contend that respondent NHA violated the stated public
purpose for the expansion of the Dasmarias Resettlement Project when it
failed to relocate the squatters from the Metro Manila area, as borne out
by the ocular inspection conducted by the trial court which showed that
most of the expropriated properties remain unoccupied. Petitioners
likewise question the public nature of the use by respondent NHA when
it entered into a contract for the construction of low cost housing units,
which is allegedly different from the stated public purpose in the
expropriation proceedings. Hence, it is claimed that respondent NHA has
forfeited its rights and interests by virtue of the expropriation judgment
and the expropriated properties should now be returned to herein
petitioners. We are not persuaded.
The 1987 Constitution explicitly provides for the exercise of the power
of eminent domain over private properties upon payment of just
compensation. More specifically, section 9, Article III states that private
property shall not be taken for public use without just compensation. The
constitutional restraints are public use and just compensation.
Petitioners cannot insist on a restrictive view of the eminent domain
provision of the Constitution by contending that the contract for low cost
housing is a deviation from the stated public use. It is now settled doctrine
that the concept of public use is no longer 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 abandoned. The term public use
has now been held to be synonymous with public interest, public benefit,
public welfare, and public convenience.[8] The rationale for this new
approach is well explained in the case of Heirs of Juancho Ardona, et
al. vs. Reyes, et al.,[9] to wit:
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.
xxxxxxxxx
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. (emphasis supplied)
The act of respondent NHA in entering into a contract with a real estate
developer for the construction of low cost housing on the expropriated
lots to be sold to qualified low income beneficiaries cannot be taken to
mean as a deviation from the stated public purpose of their
taking. Jurisprudence has it that 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, commercials firms,
entertainment and service companies, and other private concerns.[10]
Moreover, the Constitution itself allows the State to undertake, for the
common good and in cooperation with the private sector, a continuing
program of urban land reform and housing which will make at
affordable cost decent housing and basic services to underprivileged and
homeless citizens in urban centers and resettlement areas.[11] The
expropriation of private property for the purpose of socialized housing
for the marginalized sector is in furtherance of the social justice provision
under Section 1, Article XIII of the Constitution which provides that:
SECTION 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.
To this end, the State shall require the acquisition, ownership, use and
disposition of property and its increments.
It follows that the low cost housing project of respondent NHA on the
expropriated lots is compliant with the public use requirement.
We likewise do not subscribe to petitioners contention that the stated
public purpose was abandoned when respondent NHA failed to occupy
the expropriated lots by relocating squatters from the Metro Manila
area. The expropriation judgment declared that respondent NHA has a
lawful right to take petitioners properties for the public use or purpose of
expanding the Dasmarias Resettlement Project. The taking here is
absolute, without any condition, restriction or qualification. Contrary to
petitioners submission, the ruling enunciated in the early case of Fery vs.
Municipality of Cabanatuan,[12] is still good and sound doctrine, viz.:
x x x If, for example, land is expropriated for a particular purpose, with
the condition that when that purpose is ended or abandoned the property
shall return to its former owner, then, of course, when the purpose is
terminated or abandoned the former owner reacquires the property so
expropriated. x x x If, upon the contrary, however, the decree of
expropriation gives to the entity a fee simple title, then, of course, the
land becomes the absolute property of the expropriator x x x.
When land has been acquired for public use in fee simple
unconditionally, either by the exercise of eminent domain or by
purchase, the former owner retains no rights in the land, and the
public use may be abandoned, or the land may be devoted to a
different use, without any impairment of the estate or title acquired,
or any reversion to the former owner.
Petitioners further aver that the continued failure of respondent NHA to
pay just compensation for a long period of time justifies the forfeiture of
its rights and interests over the expropriated lots. They demand the return
of the expropriated lots. Respondent NHA justifies the delay to pay just
compensation by reason of the failure of petitioners to pay the capital
gains tax and to surrender the owners duplicate certificates of title.
In the recent case of Republic of the Philippines vs. Court of Appeals,
et al.,[13] the Court ruled that non-payment of just compensation does not
entitle the private landowners to recover possession of their expropriated
lots. Thus:
Thus, in Valdehueza vs. Republic where the private landowners had
remained unpaid ten years after the termination of the expropriation
proceedings, this Court ruled
The points in dispute are whether such payment can still be made and, if
so, in what amount. Said lots have been the subject of expropriation
proceedings. By final and executory judgment in said proceedings, they
were condemned for public use, as part of an airport, and ordered sold to
the government. x x x. It follows that both by virtue of the judgment, long
final, in the expropriation suit, as well as the annotations upon their title
certificates, plaintiffs are not entitled to recover possession of their
expropriated lots which are still devoted to the public use for which they
were expropriated but only to demand the market value of the same.
Said relief may be granted under plaintiffs prayer for such other remedies,
which may be deemed just and equitable under the premises.
The Court proceeded to reiterate its pronouncement in Alfonso vs. Pasay
City where the recovery of possession of property taken for public use
prayed for by the unpaid landowner was denied even while no requisite
expropriation proceedings were first instituted. The landowner was
merely given the relief of recovering compensation for his property
computed at its market value at the time it was taken and appropriated by
the State.
The judgment rendered by the Bulacan RTC in 1979 on the expropriation
proceedings provides not only for the payment of just compensation
to herein respondents but likewise adjudges the property condemned
in favor of petitioner over which parties, as well as their privies, are
bound. Petitioner has occupied, utilized and, for all intents and
purposes, exercised dominion over the property pursuant to the
judgment. The exercise of such rights vested to it as the condemnee
indeed has amounted to at least a partial compliance or satisfaction
of the 1979 judgment, thereby preempting any claim of bar by
prescription on grounds of non-execution. In arguing for the return of
their property on the basis of non-payment, respondents ignore the
fact that the right of the expropriating authority is far from that of
an unpaid seller in ordinary sales, to which the remedy of rescission
might perhaps apply. An in rem proceeding, condemnation acts
upon the property. After condemnation, the paramount title is in the
public under a new and independent title; thus, by giving notice to all
claimants to a disputed title, condemnation proceedings provide a judicial
process for securing better title against all the world than may be obtained
by voluntary conveyance. (emphasis supplied)
We, however, likewise find the refusal of respondent NHA to pay just
compensation, allegedly for failure of petitioners to pay capital gains tax
and surrender the owners duplicate certificates of title, to be unfounded
and unjustified.
First, under the expropriation judgment the payment of just compensation
is not subject to any condition. Second, it is a recognized rule that
although the right to enter upon and appropriate the land to public use is
completed prior to payment, title to the property expropriated shall pass
from the owner to the expropriator only upon full payment of the just
compensation. In the case of Association of Small Landowners in the
Phils., Inc., et al. vs. Secretary of Agrarian Reform,[14] it was held that:
Title to property which is the subject of condemnation proceedings does
not vest the condemnor until the judgment fixing just compensation is
entered and paid, but the condemnors title relates back to the date on
which the petition under the Eminent Domain Act, or the commissioners
report under the Local Improvement Act, is filed.
x x x Although the right to appropriate and use land taken for a canal
is complete at the time of entry, title to the property taken remains
in the owner until payment is actually made.
In Kennedy v. Indianapolis, the US Supreme Court cited several cases
holding that title to property does not pass to the condemnor until just
compensation had actually been made. In fact, the decisions appear to be
uniformly to this effect. As early as 1838, in Rubottom v. McLure, it was
held that actual payment to the owner of the condemned property was a
condition precedent to the investment of the title to the property in the
State albeit not to the appropriation of it to public use. In Rexford v.
Knight, the Court of Appeals of New York said that the construction upon
the statutes was that the fee did not vest in the State until the payment of
the compensation although the authority to enter upon and appropriate
the land was complete prior to the payment. Kennedy further said that
both on principle and authority the rule is x x x that the right to enter on
and use the property is complete, as soon as the property is actually
appropriated under the authority of law for a public use, but that the
title does not pass from the owner without his consent, until just
compensation has been made to him.
Our own Supreme Court has held in Visayan Refining Co. v. Camus
and Paredes, that:
If the laws which we have exhibited or cited in the preceding discussion
are attentively examined it will be apparent that the method of
expropriation adopted in this jurisdiction is such as to afford absolute
reassurance that no piece of land can be finally and irrevocably taken
from an unwilling owner until compensation is paid. x x x. (emphasis
supplied)
With respect to the amount of the just compensation still due and
demandable from respondent NHA, the lower courts erred in not
awarding interest computed from the time the property is actually taken
to the time when compensation is actually paid or deposited in
court. In Republic, et al. vs. Court of Appeals, et al.,[15] the Court
imposed interest at 12% per annum in order to help eliminate the issue of
the constant fluctuation and inflation of the value of the currency over
time, thus:
The constitutional limitation of just compensation is considered to be the
sum equivalent to the market value of the property, broadly described to
be the price fixed by the seller in open market in the usual and ordinary
course of legal action and competition or the fair value of the property as
between one who receives, and one who desires to sell, it being fixed at
the time of the actual taking by the government.Thus, if property is taken
for public use before compensation is deposited with the court having
jurisdiction over the case, the final compensation must include interests
on its just value to be computed from the time the property is taken to the
time when compensation is actually paid or deposited with the court. In
fine, between the taking of the property and the actual payment, legal
interests accrue in order to place the owner in a position as good as (but
not better than) the position he was in before the taking occurred.
x x x This allowance of interest on the amount found to be the value of
the property as of the time of the taking computed, being an effective
forbearance, at 12% per annum should help eliminate the issue of the
constant fluctuation and inflation of the value of the currency over
time. Article 1250 of the Civil Code, providing that, in case of
extraordinary inflation or deflation, the value of the currency at the time
of the establishment of the obligation shall be the basis for the payment
when no agreement to the contrary is stipulated, has strict application
only to contractual obligations. In other words, a contractual agreement
is needed for the effects of extraordinary inflation to be taken into account
to alter the value of the currency.
Records show that there is an outstanding balance of P1,218,574.35 that
ought to be paid to petitioners.[16] It is not disputed that respondent NHA
took actual possession of the expropriated properties in
1977.[17] Perforce, while petitioners are not entitled to the return of the
expropriated property, they are entitled to be paid the balance
of P1,218,574.35 with legal interest thereon at 12% per annum computed
from the taking of the property in 1977 until the due amount shall have
been fully paid.
WHEREFORE, the appealed judgment is modified as follows:
1. Ordering respondent National Housing Authority to pay petitioners the
amount of P1,218,574.35 with legal interest thereon at 12% per annum
computed from the taking of the expropriated properties in 1997 until the
amount due shall have been fully paid;
2. Ordering petitioners to pay the capital gains tax; and
3. Ordering petitioners to surrender to respondent National Housing
Authority the owners duplicate certificates of title of the expropriated
properties upon full payment of just compensation.
SO ORDERED.
DUE PROCESS AND EQUAL PROTECTION CLAUSE
G.R. No. L-38429 June 30, 1988
CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU
CARCEL, petitioners-appellants,
vs.
COURT OF FIRST INSTANCE OF AGUSAN DEL NORTE AND
BUTUAN CITY, Branch 11, and the CITY OF
BUTUAN, respondents-appellees.
Romeo B. Sanchez, Eduardo Deza Mercado and Wilfred D. Asis for
petitioners.
The City Legal Officer for respondents-appeliees.
GANCAYCO, J.:
At issue in the petition for review before Us is the validity and
constitutionality of Ordinance No. 640 passed by the Municipal Board of
the City of Butuan on April 21, 1969, the title and text of which are
reproduced below:
ORDINANCE--640
ORDINANCE PENALIZING ANY PERSON, GROUP OF PERSONS,
ENTITY OR CORPORATION ENGAGED IN THE BUSINESS OF
SELLING ADMISSION TICKETS TO ANY MOVIE OR OTHER
PUBLIC EXHIBITIONS, GAMES, CONTESTS OR OTHER
PERFORMANCES TO REQUIRE CHILDREN BETWEEN SEVEN (7)
AND TWELVE (12) YEARS OF AGE TO PAY FULL PAYMENT
FOR TICKETS INTENDED FOR ADULTS BUT SHOULD CHARGE
ONLY ONE-HALF OF THE SAID TICKET
xxx xxx xxx
Be it ordained by the Municipal Board of the City of Butuan in session
assembled, that:
SECTION 1It shall be unlawful for any person, group of persons,
entity, or corporation engaged in the business of selling admission tickets
to any movie or other public exhibitions, games, contests, or other
performances to require children between seven (7) and twelve (12) years
of age to pay full payment for admission tickets intended for adults but
should charge only one-half of the value of the said tickets.
SECTION 2Any person violating the provisions of this Ordinance
shall upon conviction be punished by a fine of not less than TWO
HUNDRED PESOS (P200.00) but not more than SIX HUNDRED
PESOS (P600.00) or an imprisonment of not less than TWO (2)
MONTHS or not more than SIX (6) MONTHS or both such firm and
imprisonment in the discretion of the Court.
If the violator be a firm or corporation the penalty shall be imposed upon
the Manager, Agent or Representative of such firm or corporation.
SECTION 3This ordinance shall take effect upon its approval.
Petitioners are Carlos Balacuit Lamberto Tan, and Sergio Yu Carcel
managers of the Maya and Dalisay Theaters, the Crown Theater, and the
Diamond Theater, respectively. Aggrieved by the effect of Ordinance No.
640, they filed a complaint before the Court of First Instance of Agusan
del Norte and Butuan City docketed as Special Civil Case No. 237 on
June 30, 1969 praying, inter alia, that the subject ordinance be declared
unconstitutional and, therefore, void and unenforceable. 1
Upon motion of the petitioners, 2 a temporary restraining order was
issued on July 14, 1969 by the court a quo enjoining the respondent City
of Butuan and its officials from enforcing Ordinance No. 640. 3 On July
29, 1969, respondents filed their answer sustaining the validity of the
ordinance.4
On January 30, 1973, the litigants filed their stipulation of facts. 5 On
June 4, 1973, the respondent court rendered its decision, 6 the dispositive
part of which reads:
IN THE LIGHT OF ALL THE FOREGOING, the Court hereby adjudges
in favor of the respondents and against the petitioners, as follows:
1. Declaring Ordinance No. 640 of the City of Butuan constitutional and
valid: Provided, however, that the fine for a single offense shall not
exceed TWO HUNDRED PESOS, as prescribed in the aforequoted
Section 15 (nn) of Rep. Act No. 523;
2. Dissolving the restraining order issued by this Court; and;
3. Dismissing the complaint, with costs against the petitioners.
4. SO ORDERED. 7
Petitioners filed their motion for reconsideration 8 of the decision of the
court a quo which was denied in a resolution of the said court dated
November 10, 1973.9
Hence, this petition.
Petitioners attack the validity and constitutionality of Ordinance No. 640
on the grounds that it is ultra vires and an invalid exercise of police
power.
Petitioners contend that Ordinance No. 640 is not within the power of'
the Municipal Board to enact as provided for in Section 15(n) of Republic
Act No. 523, the Charter of the City of Butuan, which states:
Sec. 15. General powers and duties of the Board Except as otherwise
provided by law, and subject to the conditions and limitations thereof, the
Municipal Board shall have the following legislative powers:
xxx xxx xxx
(n) To regulate and fix the amount of the license fees for the following; .
. . theaters, theatrical performances, cinematographs, public exhibitions
and all other performances and places of amusements ...
xxx xxx xxx
Respondent City of Butuan, on the other hand, attempts to justify the
enactment of the ordinance by invoking the general welfare clause
embodied in Section 15 (nn) of the cited law, which provides:
(nn) To enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity, and the promotion
of the morality, peace, good order, comfort, convenience, and general
welfare of the city and its inhabitants, and such others as may be
necessary to carry into effect and discharge the powers and duties
conferred by this Act, and to fix the penalties for the violation of the
ordinances, which shall not exceed a two hundred peso fine or six months
imprisonment, or both such fine and imprisonment, for a single offense.
We can see from the aforecited Section 15(n) that the power to regulate
and fix the amount of license fees for theaters, theatrical performances,
cinematographs, public exhibitions and other places of amusement has
been expressly granted to the City of Butuan under its charter. But the
question which needs to be resolved is this: does this power to regulate
include the authority to interfere in the fixing of prices of admission to
these places of exhibition and amusement whether under its general grant
of power or under the general welfare clause as invoked by the City?
This is the first time this Court is confronted with the question of direct
interference by the local government with the operation of theaters,
cinematographs and the like to the extent of fixing the prices of admission
to these places. Previous decisions of this Court involved the power to
impose license fees upon businesses of this nature as a corollary to the
power of the local government to regulate them. Ordinances which
required moviehouses or theaters to increase the price of their admission
tickets supposedly to cover the license fees have been held to be invalid
for these impositions were considered as not merely license fees but taxes
for purposes of revenue and not regulation which the cities have no power
to exact, 10 unless expressly granted by its charter. 11
Applying the ruling in Kwong Sing v. City of Manila, 12 where the word
"regulate" was interpreted to include the power to control, to govern and
to restrain, it would seem that under its power to regulate places of
exhibitions and amusement, the Municipal Board of the City of Butuan
could make proper police regulations as to the mode in which the
business shall be exercised.
While in a New York case, 13 an ordinance which regulates the business
of selling admission tickets to public exhibitions or performances by
virtue of the power of cities under the General City Law "to maintain
order, enforce the laws, protect property and preserve and care for the
safety, health, comfort and general welfare of the inhabitants of the city
and visitors thereto; and for any of said purposes, to regulate and license
occupations" was considered not to be within the scope of any duty or
power implied in the charter. It was held therein that the power of
regulation of public exhibitions and places of amusement within the city
granted by the charter does not carry with it any authority to interfere
with the price of admission to such places or the resale of tickets or tokens
of admission.
In this jurisdiction, it is already settled that the operation of theaters,
cinematographs and other places of public exhibition are subject to
regulation by the municipal council in the exercise of delegated police
power by the local government. 14 Thus, in People v. Chan, 15 an
ordinance of the City of Manila prohibiting first run cinematographs from
selling tickets beyond their seating capacity was upheld as constitutional
for being a valid exercise of police power. Still in another case, 16 the
validity of an ordinance of the City of Bacolod prohibiting admission of
two or more persons in moviehouses and other amusement places with
the use of only one ticket was sustained as a valid regulatory police
measure not only in the interest of preventing fraud in so far as municipal
taxes are concerned but also in accordance with public health, public
safety, and the general welfare.
The City of Butuan, apparently realizing that it has no authority to enact
the ordinance in question under its power to regulate embodied in Section
15(n), now invokes the police power as delegated to it under the general
welfare clause to justify the enactment of said ordinance.
To invoke the exercise of police power, not only must it appear that the
interest of the public generally requires an interference with private
rights, but the means adopted must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon
individuals. 17 The legislature may not, under the guise of protecting the
public interest, arbitrarily interfere with private business, or impose
unusual and unnecessary restrictions upon lawful occupations. In other
words, the determination as to what is a proper exercise of its police
power is not final or conclusive, but is subject to the supervision of the
courts. 18
Petitioners maintain that Ordinance No. 640 violates the due process
clause of the Constitution for being oppressive, unfair, unjust,
confiscatory, and an undue restraint of trade, and violative of the right of
persons to enter into contracts, considering that the theater owners are
bound under a contract with the film owners for just admission prices for
general admission, balcony and lodge.
In Homeowners' Association of the Philippines, Inc. v. Municipal Board
of the City of Manila, 19 this Court held:
The authority of municipal corporations to regulate is essentially police
power, Inasmuch as the same generally entails a curtailment of the
liberty, the rights and/or the property of persons, which are protected and
even guaranteed by the Constitution, the exercise of police power is
necessarily subject to a qualification, limitation or restriction demanded
by the regard, the respect and the obedience due to the prescriptions of
the fundamental law, particularly those forming part of the Constitution
of Liberty, otherwise known as the Bill of Rights the police power
measure must be reasonable. In other words, individual rights may be
adversely affected by the exercise of police power to the extent only
and only to the extent--that may be fairly required by the legitimate
demands of public interest or public welfare.
What is the reason behind the enactment of Ordinance No. 640?
A reading of the minutes of the regular session of the Municipal Board
when the ordinance in question was passed shows that a certain Councilor
Calo, the proponent of the measure, had taken into account the complaints
of parents that for them to pay the full price of admission for their
children is too financially burdensome.
The trial court advances the view that "even if the subject ordinance does
not spell out its raison d'etre in all probability the respondents were
impelled by the awareness that children are entitled to share in the joys
of their elders, but that considering that, apart from size, children between
the ages of seven and twelve cannot fully grasp the nuance of movies or
other public exhibitions, games, contests or other performances, the
admission prices with respect to them ought to be reduced. 19a
We must bear in mind that there must be public necessity which demands
the adoption of proper measures to secure the ends sought to be attained
by the enactment of the ordinance, and the large discretion is necessarily
vested in the legislative authority to determine not only what the interests
of the public require, but what measures are necessary for the protection
of such interests. 20 The methods or means used to protect the public
health, morals, safety or welfare, must have some relation to the end in
view, for under the guise of the police power, personal rights and those
pertaining to private property will not be permitted to be arbitralily
invaded by the legislative department. 21
We agree with petitioners that the ordinance is not justified by any
necessity for the public interest. The police power legislation must be
firmly grounded on public interest and welfare, and a reasonable relation
must exist between purposes and means.22 The evident purpose of the
ordinance is to help ease the burden of cost on the part of parents who
have to shell out the same amount of money for the admission of their
children, as they would for themselves, A reduction in the price of
admission would mean corresponding savings for the parents; however,
the petitioners are the ones made to bear the cost of these savings. The
ordinance does not only make the petitioners suffer the loss of earnings
but it likewise penalizes them for failure to comply with it. Furthermore,
as petitioners point out, there will be difficulty in its implementation
because as already experienced by petitioners since the effectivity of the
ordinance, children over 12 years of age tried to pass off their age as
below 12 years in order to avail of the benefit of the ordinance. The
ordinance does not provide a safeguard against this undesirable practice
and as such, the respondent City of Butuan now suggests that birth
certificates be exhibited by movie house patrons to prove the age of
children. This is, however, not at all practicable. We can see that the
ordinance is clearly unreasonable if not unduly oppressive upon the
business of petitioners. Moreover, there is no discernible relation
between the ordinance and the promotion of public health, safety, morals
and the general welfare.
Respondent City of Butuan claims that it was impelled to protect the
youth from the pernicious practice of movie operators and other public
exhibitions promoters or the like of demanding equal price for their
admission tickets along with the adults. This practice is allegedly
repugnant and unconscionable to the interest of the City in the furtherance
of the prosperity, peace, good order, comfort, convenience and the
general well-being of its inhabitants.
There is nothing pernicious in demanding equal price for both children
and adults. The petitioners are merely conducting their legitimate
businesses. The object of every business entrepreneur is to make a profit
out of his venture. There is nothing immoral or injurious in charging the
same price for both children and adults. In fact, no person is under
compulsion to purchase a ticket. It is a totally voluntary act on the part of
the purchaser if he buys a ticket to such performances.
Respondent City of Butuan claims that Ordinance No. 640 is reasonable
and necessary to lessen the economic burden of parents whose minor
children are lured by the attractive nuisance being maintained by the
petitioners. Respondent further alleges that by charging the full price, the
children are being exploited by movie house operators. We fail to see
how the children are exploited if they pay the full price of admission.
They are treated with the same quality of entertainment as the adults. The
supposition of the trial court that because of their age children cannot
fully grasp the nuances of such entertainment as adults do fails to
convince Us that the reduction in admission ticket price is justifiable. In
fact, by the very claim of respondent that movies and the like are
attractive nuisances, it is difficult to comprehend why the municipal
board passed the subject ordinance. How can the municipal authorities
consider the movies an attractive nuisance and yet encourage parents and
children to patronize them by lowering the price of admission for
children? Perhaps, there is some ,truth to the argument of petitioners that
Ordinance No. 640 is detrimental to the public good and the general
welfare of society for it encourages children of tender age to frequent the
movies, rather than attend to their studies in school or be in their homes.
Moreover, as a logical consequence of the ordinance, movie house and
theater operators will be discouraged from exhibiting wholesome movies
for general patronage, much less children's pictures if only to avoid
compliance with the ordinance and still earn profits for themselves. For
after all, these movie house and theater operators cannot be compelled to
exhibit any particular kind of film except those films which may be
dictated by public demand and those which are restricted by censorship
laws. So instead of children being able to share in the joys of their elders
as envisioned by the trial court, there will be a dearth of wholesome and
educational movies for them to enjoy.
There are a number of cases decided by the Supreme Court and the
various state courts of the United States which upheld the right of the
proprietor of a theater to fix the price of an admission ticket as against
the right of the state to interfere in this regard and which We consider
applicable to the case at bar.
A theater ticket has been described to be either a mere license, revocable
at the will of the proprietor of the theater or it may be evidence of a
contract whereby, for a valuable consideration, the purchaser has
acquired the right to enter the theater and observe the performance on
condition that he behaves properly. 23 Such ticket, therefore, represents a
right, Positive or conditional, as the case may be, according to the terms
of the original contract of sale. This right is clearly a right of property.
The ticket which represents that right is also, necessarily, a species of
property. As such, the owner thereof, in the absence of any condition to
the contrary in the contract by which he obtained it, has the clear right to
dispose of it, to sell it to whom he pleases and at such price as he can
obtain. 24 So that an act prohibiting the sale of tickets to theaters or other
places of amusement at more than the regular price was held invalid as
conflicting with the state constitution securing the right of property. 25
In Collister vs. Hayman, 26 it was held:
The defendants were conducting a private business, which, even if
clothed with a public interest, was without a franchise to accommodate
the public, and they had the right to control it, the same as the proprietors
of any other business, subject to such obligations as were placed upon
them by statute. Unlike a carrier of passengers, for instance, with a
franchise from the state, and hence under obligation to transport anyone
who applies and to continue the business year in and year out, the
proprietors of a theater can open and close their place at will, and no one
can make a lawful complaint. They can charge what they choose for
admission to their theater. They can limit the number admitted. They can
refuse to sell tickets and collect the price of admission at the door. They
can preserve order and enforce quiet while the performance is going on.
They can make it a part of the contract and condition of admission, by
giving due notice and printing the condition in the ticket that no one shall
be admitted under 21 years of age, or that men only or women only shall
be admitted, or that a woman cannot enter unless she is accompanied by
a male escort, and the like. The proprietors, in the control of their
business, may regulate the terms of admission in any reasonable way. If
those terms are not satisfactory, no one is obliged to buy a ticket or make
the contract. If the terms are satisfactory, and the contract is made, the
minds of the parties meet upon the condition, and the purchaser impliedly
promises to perform it.
In Tyson and Bro. United Theater Ticket Officers, Inc. vs.
Banton, 27 the United States Supreme Court held:
... And certainly a place of entertainment is in no legal sense a public
utility; and quite as certainly, its activities are not such that their
enjoyment can be regarded under any conditions from the point of view
of an emergency.
The interest of the public in theaters and other places of entertainment
may be more nearly, and with better reason, assimilated to the like
interest in provision stores and markets and in the rental of houses and
apartments for residence purposes; although in importance it fails below
such an interest in the proportion that food and shelter are of more
moment than amusement or instruction. As we have shown there is no
legislative power to fix the prices of provisions or clothing, or the rental
charges for houses and apartments, in the absence of some controlling
emergency; and we are unable to perceive any dissimilarities of such
quality or degree as to justify a different rule in respect of amusements
and entertainment ...
We are in consonance with the foregoing observations and conclusions
of American courts. In this jurisdiction, legislation had been passed
controlling the prices of goods commodities and drugs during periods of
emergency, 28limiting the net profits of public utility 29 as well as
regulating rentals of residential apartments for a limited period, 30as a
matter of national policy in the interest of public health and safety,
economic security and the general welfare of the people. And these laws
cannot be impugned as unconstitutional for being violative of the due
process clause.
However, the same could not be said of theaters, cinematographs and
other exhibitions. In no sense could these businesses be considered public
utilities. The State has not found it appropriate as a national policy to
interfere with the admission prices to these performances. This does not
mean however, that theaters and exhibitions are not affected with public
interest even to a certain degree. Motion pictures have been considered
important both as a medium for the communication of Ideas and
expression of the artistic impulse. Their effects on the perceptions by our
people of issues and public officials or public figures as well as the
prevailing cultural traits are considerable. 31People of all ages flock to
movie houses, games and other public exhibitions for recreation and
relaxation. The government realizing their importance has seen it fit to
enact censorship laws to regulate the movie industry. 32 Their aesthetic
entertainment and even educational values cannot be underestimated.
Even police measures regulating the operation of these businesses have
been upheld in order to safeguard public health and safety.
Nonetheless, as to the question of the subject ordinance being a valid
exercise of police power, the same must be resolved in the negative.
While it is true that a business may be regulated, it is equally true that
such regulation must be within the bounds of reason, that is, the
regulatory ordinance must be reasonable, and its provisions cannot be
oppressive amounting to an arbitrary interference with the business or
calling subject of regulation. A lawful business or calling may not, under
the guise of regulation, be unreasonably interfered with even by the
exercise of police power.33 A police measure for the regulation of the
conduct, control and operation of a business should not encroach upon
the legitimate and lawful exercise by the citizens of their property
rights.34 The right of the owner to fix a price at which his property shall
be sold or used is an inherent attribute of the property itself and, as such,
within the protection of the due process clause."" Hence, the proprietors
of a theater have a right to manage their property in their own way, to fix
what prices of admission they think most for their own advantage, and
that any person who did not approve could stay away. 36
Respondent City of Butuan argues that the presumption is always in favor
of the validity of the ordinance. This maybe the rule but it has already
been held that although the presumption is always in favor of the validity
or 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.37 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.38
Ordinance No. 640 clearly invades the personal and property rights of
petitioners for even if We could assume that, on its face, the interference
was reasonable, from the foregoing considerations, it has been fully
shown that it is an unwarranted and unlawful curtailment of the property
and personal rights of citizens. For being unreasonable and an undue
restraint of trade, it cannot, under the guise of exercising police power,
be upheld as valid.
WHEREFORE, the decision of the trial court in Special Civil Case No.
237 is hereby REVERSED and SET ASIDE and a new judgment is
hereby rendered declaring Ordinance No. 640 unconstitutional and,
therefore, null and void. This decision is immediately executory.
SO ORDERED.
Yap, C.J., Narvasa, Cruz, Paras, Padilla, Bidin, Sarmiento and Grio-
Aquino, JJ., concur.
Separate Opinions
GUTIERREZ, JR., J., Separate opinion
The issue before the Court is a simple one. Does Butuan City have the
power to compel theatre owners to charge only half fares for children
below twelve even as they charge all other moviegoers full prices for
admission into moviehouses?
Instead of nullifying the municipal ordinance through a broad and
sweeping justification of property rights, I believe, however, that we
should do so on a more limited ground directly bearing on the issue.
I find no rational basis for classifying children as a distinct group insofar
as paying for admission into a moviehouse is concerned. There is
absolutely no pretense that the municipal ordinance is intended to protect
children, enhance their morals, promote their health, safeguard their
safety, improve their education, or otherwise promote the general
welfare. In fact, the effect of the ordinance may be the opposite.
With the price of movie tickets suddenly within the reach of many
children, they may neglect their studies or use money intended for food
or school supplies to enter moviehouses. Movie owners who are
compelled to accept half prices for a newly increased group of young
patrons will be tempted to allow them to enter moviehouses
indiscriminately, including those where scenes of violence, crime, or
even sex are portrayed. Addiction of the young to movie going is
definitely injurious to their health.
The avowed purpose of the ordinance--to ease the burden of costs for
parents who have to shell out the same amount of money for the
admission of their children as they would for themselves is not
covered by police power. If the city cannot compel refreshment parlors
to charge half-prices for hamburgers, soft drinks, pizzas, or cakes
consumed by children by what authority can it impose the obligation of
similarly easing parents' burdens upon the owners of moviehouses?
As discussed by the minority opinion, the legislature may not., under the
guise of protecting the public interest, arbitrarily interfere with private
business, or impose unusual and unnecessary restrictions upon lawful
occupations. The imposition enacted by the municipal board of Butuan
City has not been justified by its proponents as a restriction necessary for
public health or public welfare. No reasonable relationship has been
shown between a valid purpose and the proper means to accomplish it.
I hesitate, however, to make a brief for owners of theatres and expound
a laissez faire approach insofar as their businesses are concerned. Movie
houses may not be public utilities but as places of entertainment affected
with a certain degree of public interest, they are subject to reasonable
regulation. That regulation is stronger and more restrictive than that of
regular or ordinary businesses.
The following citation for instance, is pure obiter insofar as half-prices
for minors are concerned:
... [T]he proprietors of a theater can open and close their place at will,
and no one can make lawful complaint. They can charge what they
choose for admission to their theater. They can limit the number admitted.
They can refuse to sell tickets and collect the price of admission at the
door. They can preserve order and enforce quiet while the performance
is going on. They can make it a part of the contract and a condition of
admission, by giving due notice and printing the condition in the ticket
that no one shall be admitted under 21 years of age, or that men only or
women only shall be admitted, or that a woman cannot enter unless she
is accompanied by a male escort, and the like. The proprietors, in the
control of their business, may regulate the terms of admission in any
reasonable way. If those terms are not satisfactory, no one is obliged to
buy a ticket or make the contract. If the terms are satisfactory, and the
contract is made, the minds of the parties meet upon the condition, and
the purchaser impliedly promises to perform it. (Collister v. Hayman, 76
N.E. 20,183 N.Y. 250, 253, 1 L.R.A. [N.S.] 1188, 11 Am. St. Rep. 740,
An Cas. 344).
I see no reason at this time why we should pass upon situations that are
not before us or warn municipal governments beforehand to avoid
enacting certain regulations when nobody knows exactly what
circumstances may call for those regulations.
For instance,
A theater ticket has been described to be either a mere license, revocable
at the will of the proprietor of the theater or it may be evidence of a
contract whereby, for a valuable consideration, the purchaser has
acquired the right to enter the theater and observe the performance on
condition that he behaves properly (Law of the State.
Screen and Radio by Marchetti, 1939, ec., page 268). Such ticket,
therefore, represents a right, positive or conditional, as the case may be,
according to the terms of the original contract of sale. This right is clearly
a right of property. The ticket which represents that right is also,
necessarily, a species of property. As such, the owner thereof, in the
absence of any condition to the contrary y in the contract by which he
obtained it, has the clear right to dispose of it, to sell it to whom he pleases
and at such price as he can obtain Ibids, citing Ex-parte Quarg, 84 Pac.,
766,149 Cal. 79, 80, 5 L.R.A. [N.S], 183, 117 Am. St. Rep. 11 5, 9 Ann.
Ca. 747; Also People v. Steele, 231, III. 340, 344, 14 R.A. [N.S.] 361,
121 Am. St. Rep. 321, 83 N.E. 236). ....
xxx xxx xxx
.... A lawful business or calling may not, under the guise of regulation, be
unreasonably interfered with even by the exercise of police power.
(Ogden City v. Leo, 54 Utah 556, 182 P. 530) A police measure for the
regulation of the conduct, control and operation of a business should not
encroach upon the legitimate and lawful exercise by the citizens of their
property rights (Pampanga Bus Co., Inc. v. Municipality of Tarlac, 3
SCRA 816). The right of the owner to fix a price at which his property
shall be sold or used is an inherent attribute of the property itself and, as
such, within the protection of the due process clause (Tyson and Bro.--
United Theater Ticket Officers, Inc. v. Banton, supra). Hence the
proprietors of a theater have a right to manage their property in their own
way, to fix what prices of admission they think most for their own
advantage, and that ally person who did not approve could stay away
(Ibid, citing v. Clifford v. Brandon, 2 Campb. 358, 368.).
may be interpreted as carte blanche for movie owners to practically
ignore municipal regulation and do as they please.
More appropriate to my maid is to state that while tile Butuan City
ordinance is invalid, it does not necessarily follow that all forms of
regulation are proscribed.
We have ruled in People v. Chan (65 Phil. 612):
In the first place, it must be noted that there can be no doubt that the City
of Manila exercises police power, by delegation and that in the exercise
of that power it is authorized to enact ordinances for, the regulation of the
operation of theatres and cinematographs (sec. 2444(m) and (ee) of the
Revised Administrative Code: U.S. v. Gomez Jesus, 31 Phil. 218; U.S. v.
Pompeya, 31 Phil. 245).
On April 17, 1935, Ordinance No. 2347 was approved. In section 1 it
provides that all first run theatres or cinematographs should register their
seating capacity with the City Treasurer, and in section 1 it prohibits the
sale of tickets in said theatres or cinematographs in excess of their
registered seating capacity.
Before the approval of Ordinance No. 2347, Ordinance No. 2188,
approved on July 22, 1933, was in force, section 1 of which divides
cinematographs into three different classes: first, second and third. The
first class includes those located on certain and specified streets like
Rosario, Escolta, etc., which exhibit films for the first time; those
belonging to the second class are those which, not being located on said
streets, also exhibit films for the first time, and those which, being located
on said streets, regularly show films for the second time or which have
the exclusive right to show secondhand films; and the third class
comprehends all those which are not included in the first and second
classes.
xxx xxx xxx
To the foregoing must be added, and this is of common knowledge, that
the films which are shown for the first time attract a large attendance, and
the theatre or cinematograph, whether it is first or second class,
presenting shows for the first time, would be suffocatingly overcrowded
if the number of tickets were not limited. This is the reason for the
prohibition of the sale of tickets in excess of the seating capacity. The
prohibition applies with equal force wherever the same reason exists, that
is, to first and second class theatres which show films for the first time.
(at pp. 612- 613)
There being a rational basis for the restriction of sales of tickets beyond
seating capacity, the ordinance is perfectly valid.
The same is true for the situation found in Samson v. Mayor of Bacolod
City (60 SCRA 274):
When it is further remembered that insofar as movie houses and other
places of amusement are concerned. (According to Section 17[1] of the
City Charter of Bacolod, Commonwealth Act No. 326 119381: 'To
regulate and fix the amount of the fees for the following: ... theatres,
theatrical performances, cinematographs, public exhibitions, circuses and
all other performances and places of amusements ....") the least doubt
cannot be entertained as to the validity of a measure prohibiting a
proprietor, lessee or operator of an amusement place to admit two or more
persons with only one admission ticket, not only in the interest of
preventing fraud insofar as municipal taxes are concerned but also in
accordance with public health, public safety and the general welfare. (Cf.
People v. Chan, 65 Phil. 611 [1938]). An American Supreme Court
decision, Western Turf Association v. Greenberg, (204 US 359 [1907]
the opinion being penned by Justice Harlan is equally illuminating: 'The
statute is only a regulation of places of public entertainment and
amusement upon terms of equal and exact justice to everyone holding a
ticket of admission, and who is not, at the time, under the influence of
liquor, or boisterous in conduct, or of lewd and immoral character. ....
Such a regulation, in itself just, is likewise promotive of peace and good
order among those who attend places of public entertainment and
amusement. It is neither an arbitrary exertion of the state's inherent or
governmental power, nor a violation of any right secured by the
constitution of the United States. (at pp. 363-364).
The City of Butuan tries to justify the challenged ordinance by invoking
police power. The invocation is improper. The definitions of police
power, including its exercise based on the general welfare clause, are
emphasized to show that the respondents' arguments have no merit
Police power is inherent in the State but not in municipal corporations.
For a municipal corporation to exercise police power, there must be a
legislative grant which necessarily also sets the limits for the exercise of
the power.
In the Philippines, the grant of authority to the municipality to exercise
police power is embodied in Section 2238 of the Revised Administrative
Code, otherwise known as the General Welfare Clause. Chartered cities
are granted similar authority in their respective charters
The general welfare clause has two branches. The first authorizes the
municipal council to enact such ordinances and make such regulations
not repugnant to law, as may be necessary to carry into effect and
discharge the powers and duties conferred upon the municipal council by
law. The second branch authorizes the municipality to enact such
ordinances as may be necessary and proper for the health and safety,
promote the prosperity, improve the morals, peace, good order, comfort,
and convenience of the municipality and inhabitants thereof, and for the
protection of property therein. (U.S. v. Salaveria 39 Phil. 103).
This Court has generally been liberal in sustaining municipal action based
on the general welfare clause. In the case before us, however, there
appears to be no basis for sustaining the ordinance even on a generous
interpretation of the general welfare clause. (READ SEPARATE
OPINION)
G.R. No. 99327 May 27, 1993
ATENEO DE MANILA UNIVERSITY, FATHER JOAQUIN
BERNAS, S. J., DEAN CYNTHIA ROXAS-DEL CASTILLO,
JUDGE RUPERTO KAPUNAN, JR., JUSTICE VENICIO
ESCOLIN, FISCAL MIGUEL ALBAR, ATTYS. MARCOS
HERRAS, FERDINAND CASIS, JOSE CLARO TESORO,
RAMON CAGUIOA, and RAMON ERENETA. petitioners,
vs.
HON. IGNACIO M. CAPULONG, Presiding Judge of the RTC-
Makati, Br. 134, ZOSIMO MENDOZA, JR. ERNEST
MONTECILLO, ADEL ABAS, JOSEPH LLEDO AMADO
SABBAN, DALMACIO LIM JR., MANUEL ESCONA and JUDE
FERNANDEZ, respondents.
Bengzon, Zarraga, Narciso, Cudala, Pecson, Benson & Jimenes for
petitioners.
Romulo, Mabanta, Buenaventura, Sayoc & De Los Angeles for petitioner
Cynthia Roxas-del Castillo.
Fabregas, Calida & Remollo for private respondents.
ROMERO, J.:
In 1975, the Court was confronted with a mandamus proceeding to
compel the Faculty Admission Committee of the Loyola School of
Theology, a religious seminary which has a working arrangement with
the Ateneo de Manila University regarding accreditation of common
students, to allow petitioner who had taken some courses therein for
credit during summer, to continue her studies.1 Squarely meeting the
issue, we dismissed the petition on the ground that students in the position
of petitioner possess, not a right, but a privilege, to be admitted to the
institution. Not having satisfied the prime and indispensable requisite of
a mandamus proceeding since there is no duty, much less a clear duty, on
the part of the respondent to admit the petitioner, the petition did not
prosper.
In support of its decision, the Court invoked academic freedom of
institutions of higher learning, as recognized by the Constitution, the
concept encompassing the right of a school to choose its students.
Eighteen (18) years later, the right of a University to refuse admittance to
its students, this time in Ateneo de Manila University proper, is again
challenged.
Whereas, in the Garcia case referred to in the opening paragraph, the
individual concerned was not a regular student, the respondents in the
case at bar, having been previously enrolled in the University, seek re-
admission. Moreover, in the earlier case, the petitioner was refused
admittance, not on such considerations as personality traits and character
orientation, or even inability to meet the institution's academic or
intellectual standards, but because of her behavior in the classroom. The
school pointedly informed her that ". . . it would seem to be in your best
interest to work with a Faculty that is more compatible with your
orientations."
On the other hand, students who are now being refused admission into
petitioner University have been found guilty of violating Rule No. 3 of
the Ateneo Law School Rules on Discipline which prohibits participation
in hazing activities. The case attracted much publicity due to the death of
one of the neophytes and serious physical injuries inflicted on another.
Herein lies an opportunity for the Court to add another dimension to the
concept of academic freedom of institutions of higher learning, this time
a case fraught with social and emotional overtones.
The facts which gave rise to this case which is far from novel, are as
follows:
As a requisite to membership, the Aquila Legis, a fraternity organized in
the Ateneo Law School, held its initiation rites on February 8, 9 and 10,
1991, for students interested in joining its ranks. As a result of such
initiation rites, Leonardo "Lennie" H. Villa, a first year student of
petitioner university, died of serious physical injuries at Chinese General
Hospital on February 10, 1991. He was not the lone victim, though, for
another freshman by the name of Bienvenido Marquez was also
hospitalized at the Capitol Medical Center for acute renal failure
occasioned by the serious physical injuries inflicted upon him on the
same occasion.
In a notice dated February 11, 1991, petitioner Dean Cynthia del Castillo
created a Joint Administration-Faculty-Student Investigating
Committee2 which was tasked to investigate and submit a report within
72 hours on the circumstances surrounding the death of Lennie Villa.
Said notice also required respondent students to submit their written
statements within twenty-four (24) hours from receipt. Although
respondent students received a copy of the written notice, they failed to
file a reply. In the meantime, they were placed on preventive
suspension.3 Through their respective counsels, they requested copies of
the charges and pertinent documents or affidavits.
In a notice dated February 14, 1991, the Joint Administration-Faculty-
Student Investigating Committee, after receiving the written statements
and hearing the testimonies of several witness, found a prima facie case
against respondent students for violation of Rule 3 of the Law School
Catalogue entitled "Discipline."4
Respondent students were then required to file their written answers to
the formal charge on or before February 18, 1991; otherwise, they would
be deemed to have waived their right to present their defenses.
On February 20, 1991, petitioner Dean created a Disciplinary Board
composed of petitioners Judge Ruperto Kapunan, Justice Venicio
Escolin, Atty. Marcos Herras, Fiscal Miguel Albar and Atty. Ferdinand
Casis, to hear the charges against respondent students.
In a letter dated February 20, 1991, respondent students were informed
that they had violated Rule No. 3 of the Rules on Discipline contained in
the Law School Catalogue. Said letter also states: "The complaint/charge
against you arose from initiations held on February 8-10, 1991. The
evidence against you consist of testimonies of students, showing your
participation in acts prohibited by the School regulations." Finally, it
ordered respondent students to file their written answers to the above
charge on or before February 22 1991, otherwise they would be deemed
to have waived their defenses.5
In a motion dated February 21, 1991, respondent students, through
counsel, requested that the investigation against them be held in
abeyance, pending action on their request for copies of the evidence
against them.6
Respondent students were then directed by the Board to appear before it
at a hearing on February 28, 1991 to clarify their answer with regard to
the charges filed by the investigating committee for violation of Rule No.
3. However, in a letter to a petitioners dated February 27, 1991, counsel
for respondent students moved to postpone the hearing from February 28,
1991 to March 1, 1991.7
Subsequently, respondent students were directed to appear on March 2,
1991 for clarificatory questions.8 They were also informed that:
a) The proceedings will be summary in nature in accordance with the
rules laid down in the case of Guzman vs. National University;9
b) Petitioners have no right to cross-examine the affiants-neophytes;
c) Hazing which is not defined in the School catalogue shall be defined
in accordance with the proposed bill of Sen. Jose Lina, Senate Bill No.
3815;
d) The Board will take into consideration the degree of participation of
the petitioners in the alleged hazing incident in imposing the penalty;
e) The Decision of the Board shall be appealable to the President of the
University, i. e., Respondent Joaquin Bernas S. J.
On March 5, 1991, petitioner Bernas wrote Dean Castillo that, "in cases
where the Disciplinary Board is not prepared to impose the penalty of
dismissal, I would prefer that the Board leave the decision on the penalty
to the Administration so that this case be decided not just on the Law
School level but also on the University level."10
In a resolution dated March 9, 1991, the Board found respondent students
guilty of violating Rule No. 3 of the Ateneo Law School Rules on
Discipline which prohibits participation in hazing activities. The Board
found that respondent students acted as master auxiliaries or "auxies"
during the initiation rites of Aquila Legis, and exercised the "auxies
privilege," which allows them to participate in the physical hazing.
Although respondent students claim that they were there to assist and
attend to the needs of the neophytes, actually they were assigned a
definite supportive role to play in the organized activity. Their guilt was
heightened by the fact that they made no effort to prevent the infliction
of further physical punishment on the neophytes under their care. The
Board considered respondent students part and parcel of the integral
process of hazing. In conclusion, the Board pronounced respondents
guilty of hazing, either by active participation or through acquiescence.
However, in view of the lack of unanimity among the members of the
Board on the penalty of dismissal, the Board left the imposition of the
penalty to the University Administration.11 Petitioner Dean del Castillo
waived her prerogative to review the decision of the Board and left to the
President of the University the decision of whether to expel respondents
or not.
Consequently, in a resolution dated March 10, 1991, petitioner Fr.
Joaquin G. Bernas, as President of the Ateneo de Manila University,
accepted the factual findings of the Board, thus: "that as Master
Auxiliaries they exercised the 'auxie's privilege;' that even assuming they
did not lay hands on the neophytes," respondents students are still guilty
in accordance with the principle that "where two or more persons act
together in the commission of a crime, whether they act through the
physical volition of one or of all, proceeding severally or collectively,
each individual whose will contributes to the wrongdoing is responsible
for the whole." Fr. Bernas, in describing the offense which led to the
death of Leonardo Villa, concluded that the "offense of the respondents
can be characterized as grave and serious, subversive of the goals of
Christian education and contrary to civilized behavior." Accordingly, he
imposed the penalty of dismissal on all respondent students. 12
In a resolution dated March 18, 1991 and concurred in by petitioner Fr.
Bernas,13 the Board excluded respondent students Abas and Mendoza
from the coverage of the resolution of March 10, 1991, inasmuch as at
the time the latter resolution was promulgated, neither had as yet
submitted their case to the Board. Said resolution also set the
investigation of the two students on March 21, 1991.
On March 18, 1991, respondent students filed with the Regional Trial
Court of Makati, a petition for certiorari, prohibition
and mandamus with prayer for temporary restraining order and
preliminary injunction14 alleging that they were currently enrolled as
students for the second semester of school year 1990-91. Unless a
temporary restraining order is issued, they would be prevented from
taking their examinations. The petition principally centered on the
alleged lack of due process in their dismissal.
On the same day, Judge Madayag issued a temporary restraining order
the enjoining petitioners from dismissing respondent students and
stopping the former from conducting hearings relative to the hazing
incident.15
Hearings in connection with the issuance of the temporary restraining
order were then held. On April 7, 1991, the temporary restraining order
were issued on March 18, 1991 lapsed. Consequently, a day after the
expiration of the temporary restraining order, Dean del Castillo created a
Special Board composed of Atty.(s) Jose Claro Tesoro, Ramon Caguioa,
and Ramon Ereeta to investigate the charges of hazing against
respondent students Abas and Mendoza.
Respondent students reacted immediately by filing a Supplemental
Petition of certiorari, prohibition and mandamuswith prayer for a
temporary restraining order and preliminary injunction, to include the
aforesaid members of the Special Board, as additional respondents to the
original petition.16
Petitioners moved to strike out the Supplement Petition arguing that the
creation of the Special Board was totally unrelated to the original petition
which alleged lack of due process in the conduct of investigations by the
Disciplinary Board against respondent students; that a supplemental
petition cannot be admitted without the same being set for hearing and
that the supplemental petition for the issuance of a temporary restraining
order will, in effect, extend the previous restraining order beyond its
mandatory 20-day lifetime.17 Acting on the urgent motion to admit the
supplemental petition with prayer for a temporary restraining order,
Judge Amin, as pairing judge of respondents Judge Capulong, granted
respondent students' prayer on April 10, 1991.18
On May 17, 1991, respondent Judge ordered petitioners to reinstate
respondent students. Simultaneously, the court ordered petitioners to
conduct special examinations in lieu of the final examinations which
allegedly the students were not allowed to take, and enjoined them to
maintain the status quo with regard to the cases of Adel Abas and Zosimo
Mendoza pending final determination of the issue of the instant case.
Lastly, it directed respondent students to file a bond in the amount of
P50,000.00.19
On the same date, May 17, 1991, the Special Board investigating
petitioners Abas and Mendoza and directed the dropping of their names
from its roll of students.20
The following day or on May 21, 1991, respondent judge issued the writ
of preliminary injunction upon posting by respondents of a bond dated
May 17, 1991 in the amount of P50,000.00.
Hence, this special civil action of certiorari under Rule 65 with prayer
for the issuance of a temporary restraining order enjoining the
enforcement of the May 17, 1991 order of respondent judge. 21
In the case at bar, we come to grips with two relevant issues on academic
freedom, namely: (1) whether a school is within its rights in expelling
students from its academic community pursuant to its disciplinary rules
and moral standards; and (2) whether or not the penalty imposed by the
school administration is proper under the circumstances.
We grant the petition and reverse the order of respondent judge ordering
readmission of respondent students. Respondent judge committed grave
abuse of discretion when he ruled that respondent students had been
denied due process in the investigation of the charges against them.
It is the threshold argument of respondent students that the decision of
petitioner Fr. Joaquin Bernas, S. J., then President of the Ateneo de
Manila University, to expel them was arrived at without affording them
their right to procedural due process. We are constrained to disagree as
we find no indication that such right has been violated. On the contrary,
respondent students' rights in a school disciplinary proceeding, as
enunciated in the cases of Guzman v. National University,22 Alcuaz v.
PSBA, Q.C. Branch23 and Non v. Dames II24 have been meticulously
respected by petitioners in the various investigative proceedings held
before they were expelled.
Corollary to their contention of denials of due process is their argument
that it is Ang Tibay case25 and not the Guzman case which is applicable
in the case at bar. Though both cases essentially deal with the
requirements of due process, the Guzman case is more apropos to the
instant case, since the latter deals specifically with the minimum
standards to be satisfied in the imposition of disciplinary sanctions in
academic institutions, such as petitioner university herein, thus:
(1) the students must be informed in writing of the nature and cause of
any accusation against them; (2) that they shall have the right to answer
the charges against them with the assistance of counsel, if desired: (3)
they shall be informed of the evidence against them (4) they shall have
the right to adduce evidence in their own behalf; and (5) the evidence
must be duly considered by the investigating committee or official
designated by the school authorities to hear and decide the case.26
It cannot seriously be asserted that the above requirements were not met.
When, in view of the death of Leonardo Villa, petitioner Cynthia del
Castillo, as Dean of the Ateneo Law School, notified and required
respondent students on February 11, 1991 to submit within twenty-four
hours their written statement on the incident,27 the records show that
instead of filing a reply, respondent students requested through their
counsel, copies of the charges.28 While of the students mentioned in the
February 11, 1991 notice duly submitted written statements, the others
failed to do so. Thus, the latter were granted an extension of up to
February 18, 1991 to file their statements.29
Indubitably, the nature and cause of the accusation were adequately
spelled out in petitioners' notices dated February 14 and 20, 1991. 30 It is
to be noted that the February 20, 1991 letter which quoted Rule No. 3 of
its Rules of Discipline as contained in the Ateneo Law School Catalogue
was addressed individually to respondent students. Petitioners'
notices/letters dated February 11, February 14 and 20 clearly show that
respondent students were given ample opportunity to adduce evidence in
their behalf and to answer the charges leveled against them.
The requisite assistance of counsel was met when, from the very start of
the investigations before the Joint Administration Faculty-Student
Committee, the law firm of Gonzales Batiler and Bilog and Associates
put in its appearance and filed pleadings in behalf of respondent students.
Respondent students may not use the argument that since they were not
accorded the opportunity to see and examine the written statements which
became the basis of petitioners' February 14, 1991 order, they were
denied procedural due process.31 Granting that they were denied such
opportunity, the same may not be said to detract from the observance of
due process, for disciplinary cases involving students need not
necessarily include the right to cross examination. An administrative
proceeding conducted to investigate students' participation in a hazing
activity need not be clothed with the attributes of a judicial proceeding.
A closer examination of the March 2, 1991 hearing which characterized
the rules on the investigation as being summary in nature and that
respondent students have no right to examine affiants-neophytes, reveals
that this is but a reiteration of our previous ruling in Alcuaz.32
Respondent students' contention that the investigating committee failed
to consider their evidence is far from the truth because the February 14,
1992 ordered clearly states that it was reached only after receiving the
written statements and hearing the testimonies of several
witnesses.33 Similarly, the Disciplinary Board's resolution dated March
10, 1991 was preceded by a hearing on March 2, 1991 wherein
respondent students were summoned to answer clarificatory questions.
With regard to the charge of hazing, respondent students fault petitioners
for not explicitly defining the word "hazing" and allege that there is no
proof that they were furnished copies of the 1990-91 Ateneo Law School
Catalogue which prohibits hazing. Such flawed sophistry is not worthy
of students who aspire to be future members of the Bar. It cannot be
overemphasized that the charge filed before the Joint Administration-
Faculty-Student Investigating Committee and the Disciplinary Board is
not a criminal case requiring proof beyond reasonable doubt but is merely
administrative in character. As such, it is not subject to the rigorous
requirements of criminal due process, particularly with respect to the
specification of the charge involved. As we have had occasion to declare
in previous cases a similar nature, due process in disciplinary cases
involving students does not entail proceedings and hearings identical to
those prescribed for actions and proceedings in courts of
justice.34 Accordingly, disciplinary charges against a student need not be
drawn with the precision of a criminal information or complaint. Having
given prior notice to the students involved that "hazing" which is not
defined in the School Catalogue shall be defined in accordance with
Senate Bill No. 3815, the proposed bill on the subject of Sen. Jose Lina,
petitioners have said what needs to be said. We deem this sufficient for
purposes of the investigation under scrutiny.
Hazing, as a ground for disciplining a students, to the extent of dismissal
or expulsion, finds its raison d' etre in the increasing frequency of injury,
even death, inflicted upon the neophytes by their insensate "masters."
Assuredly, it passes the test of reasonableness and absence of malice on
the part of the school authorities. Far from fostering comradeship
and esprit d' corps, it has merely fed upon the cruel and baser instincts of
those who aspire to eventual leadership in our country.
Respondent students argue that petitioners are not in a position to file the
instant petition under Rule 65 considering that they failed to file a motion
for reconsideration first before the trial court, thereby by passing the latter
and the Court of Appeals.35
It is accepted legal doctrine that an exception to the doctrine of
exhaustion of remedies is when the case involves a question of law,36 as
in this case, where the issue is whether or not respondent students have
been afforded procedural due process prior to their dismissal from
petitioner university.
Lastly, respondent students argue that we erred in issuing a Temporary
Restraining Order since petitioners do not stand to suffer irreperable
damage in the event that private respondents are allowed to re-enroll. No
one can be so myopic as to doubt that the immediate reinstatement of
respondent students who have been investigated and found by the
Disciplinary Board to have violated petitioner university's disciplinary
rules and standards will certainly undermine the authority of the
administration of the school. This we would be most loathe to do.
More importantly, it will seriously impair petitioner university's
academic freedom which has been enshrined in the 1935, 1973 and the
present 1987 Constitutions.
At this juncture, it would be meet to recall the essential freedoms
subsumed by Justice Felix Frankfurter in the term "academic freedom"
cited in the case of Sweezy v. New Hampshire,37 thus: (1) who may teach:
(2) what may be taught; (3) how it shall be taught; and (4) who may be
admitted to study.
Socrates, the "first of the great moralists of Greece," proud to claim the
title "gadfly of the State" has deservedly earned for himself a respected
place in the annals of history as a martyr to the cause of free intellectual
inquiry. To Plato, this great teacher of his was the "best, the most
sensible, and the most sensible, and the most just man of his age." In 399
B.C., he willingly quaffed the goblet of hemlock as punishment for
alleged "corruption" of the youth of Athens. He describes in his own
words how this charge of "corruption," the forerunner of the concept of
academic freedom, came about:
Young men of the richer classes, who have not much to do, come about
me of their own accord: they like to heart the pretenders examined, and
they often imitate me, and examine others themselves; there are plenty of
person, as they soon discover, who think that they know something, but
really know little or nothing; and then those who are examined by them
instead of being angry with themselves are angry with me. This
confounded Socrates, they say; this villainous misleader of youth. And
then if somebody asks them, Why, what evil does he practice or teach?
they do not know, and cannot tell; but in order that they may not appear
to be at a loss, they repeat the ready-made charges which are used against
all philosophers about teaching things up in the clouds and under the
earth, and having no gods, and making the worse appear the better cause;
for they do not like to confess that their pretense of knowledge has been
detected which is the truth; and as they are numerous and ambitious
and energetic, and are all in battle array and have persuasive tongues,
they have filled your ears with their loud and inveterate calumnies.38
Since Socrates, numberless individuals of the same heroic mold have
similarly defied the stifling strictures of authority, whether State, Church,
or various interest groups, to be able to give free rein to their ideas.
Particularly odious were the insidious and blatant attempts at thought
control during the time of the Inquisition until even the Medieval
universities, renowned as intellectual centers in Europe, gradually lost
their autonomy.
In time, such noble strivings, gathering libertarian encrustations along the
way, were gradually crystallized in the cluster of freedoms which awaited
the champions and martyrs of the dawning modern age. This was
exemplified by the professors of the new German universities in the 16th
and 17th centuries such as the Universities of Leiden (1554), Helmstatdt
(1574) and Heidelberg (1652). The movement back to freedom of inquiry
gained adherents among the exponents of fundamental human rights of
the 19th and 20th centuries. "Academic freedom", the term as it evolved
to describe the emerging rights related to intellectual liberty, has
traditionally been associated with freedom of thought, speech, expression
and the press; in other words, with the right of individuals in university
communities, such as professors, researchers and administrators, to
investigate, pursue, discuss and, in the immortal words of Socrates, "to
follow the argument wherever it may lead," free from internal and
external interference or pressure.
But obviously, its optimum impact is best realized where the freedom is
exercised judiciously and does not degenerate into unbridled license.
Early cases on this individual aspect of academic freedom have been
stressed the need for assuring to such individuals a measure of
independence through the guarantees of autonomy and security of tenure.
The components of this aspect of academic freedom have been
categorized under the areas of: (1) who may teach and (2) how to teach.
It is to be realized that this individual aspects of academic freedom could
have developed only pari passu with its institutional counterpart. As
corporate entities, educational institutions of higher learning are
inherently endowed with the right to establish their policies, academic
and otherwise, unhampered by external controls or pressure. In
theFrankfurter formulation, this is articulated in the areas of: (1) what
shall be taught, e.g., the curriculum and (2) who may be admitted to
study.
In the Philippines, the Acts which are passed with the change of
sovereignty from the Spanish to the American government, namely, the
Philippine Bill of 1902 and the Philippine Autonomy Act of 1916 made
no mention of the rights now subsumed under the catch-all term of
"academic freedom." This is most especially true with respect to the
institutional aspect of the term. It had to await the drafting of the
Philippine Constitutions to be recognized as deserving of legal
protection.
The breakthrough for the concept itself was found in Section 5 of the
1935 Constitution which stated: "Universities established by the State
shall enjoy academic freedom." The only State University at that time,
being the University of the Philippines, the Charter was perceived by
some as exhibiting rank favoritism for the said institution at the expense
of the rest.
In attempt to broaden the coverage of the provision, the 1973 Constitution
provided in its Section 8(2): "All institutions of higher learning shall
enjoy academic freedom." In his interpretation of the provision, former
U.P. President Vicente G. Sinco, who was also a delegate to the 1971
Constitutional Convention, declared that it "definitely grants the right of
academic freedom to the University as an institution as distinguished
from the academic freedom of a university professor."39
Has the right been carried over the to the present Constitution? In an
attempt to give an explicit definition with an expanded coverage, the
Commissioners of the Constitutional Commission of the 1986 came up
with this formulation: "Academic freedom shall be enjoyed by students,
by teachers, and by researchers." After protracted debate and ringing
speeches, the final version which was none too different from the way it
was couched in the previous two (2) Constitutions, as found in Article
XIV, Section 5(2) states: "Academic freedom shall be enjoyed in all
institutions of higher learning." In anticipation of the question as to
whether and what aspects of academic freedom are included herein,
ConCom Commissioner Adolfo S. Azcuna explained: "Since academic
freedom is a dynamic concept, we want to expand the frontiers of
freedom, especially in education, therefore, we shall leave it to the courts
to develop further the parameters of academic freedom."40
More to the point, Commissioner Jose Luis Martin C. Gascon asked:
"When we speak of the sentence 'academic freedom shall be enjoyed in
all institutions of higher learning,' do we mean that academic freedom
shall be enjoyed by the institution itself?" Azcuna replied: "Not only that,
it also includes . . . . " Gascon finished off the broken thought, "the upon respondent students. This finds authority and justification in Section
faculty and the students." Azcuna replied: "Yes." 146 of the Manual of Regulations for Private Schools.48
Since Garcia v. Loyola School of Theology,41 we have consistently WHEREFORE, the instant petition is GRANTED; the order of
upheld the salutary proposition that admission to an institution of higher respondent Judge dated May 17, 1991 reinstating respondents students
learning is discretionary upon a school, the same being a privilege on the into petitioner university is hereby REVERSED. The resolution of
part of the student rather than a right. While under the education Act of petitioner Joaquin Bernas S. J., then President of Ateneo de Manila
1982, students have a right "to freely choose their field of study, subject University dated March 1991, is REINSTATED and the decision of the
to existing curricula and to continue their course therein up to Special Board DISMISSING respondent students ADEL ABAS and
graduation," such right is subject, as all rights are, to the established ZOSIMO MENDOZA dated May 20, 1991 is hereby AFFIRMED.
academic and disciplinary standards laid down by the academic
institution.42
"For private schools have the right to establish reasonable rules and
regulations for the admission, discipline and promotion of students. This
. . . extends as well to parents . . . as parents are under a social and moral
(if not legal) obligation, individually and collectively, to assist and
cooperate with the schools."43
Such rules are "incident to the very object of incorporation and
indispensable to the successful management of the college. The rules may
include those governing student discipline."44 Going a step further, the
establishment of rules governing university-student relations, particularly
those pertaining to student discipline, may be regarded as vital, not
merely to the smooth and efficient operation of the institution, but to its
very survival.
Within memory of the current generation is the eruption of militancy in
the academic groves as collectively, the students demanded and plucked
for themselves from the ponoply of academic freedom their own rights
encapsulized under the rubric of "right to education" forgetting that, in
Holfeldian terms, they have a concomitant duty, and that is, their duty to
learn under the rules laid down by the school.
Considering that respondent students are proud to claim as their own a
Christian school that includes Theology as part of its curriculum and
assidously strives to turn out individuals of unimpeachable morals and
integrity in the mold of the founder of the order of the Society of Jesus,
St. Ignatius of Loyola, and their God-fearing forbears, their barbaric and
ruthless acts are the more reprehensible. It must be borne in mind that
universities are established, not merely to develop the intellect and skills
of the studentry, but to inculcate lofty values, ideals and attitudes; nay,
the development, or flowering if you will, of the total man.
In essence, education must ultimately be religious not in the sense that
the founders or charter members of the institution are sectarian or profess
a religious ideology. Rather, a religious education, as the renowned
philosopher Alfred North Whitehead said, is "an education which
inculcates duty and reverence."45 It appears that the particular brand of
religious education offered by the Ateneo de Manila has been lost on the
respondent students.
Certainly, they do not deserve to claim such a venerable institution as the
Ateneo de Manila University as their own a minute longer, for they may
foreseeably cast a malevolent influence on the students currently
enrolled, as well as those who come after them.
Quite applicable to this case is our pronouncement in Yap Chin Fah v.
Court of Appeals that: "The maintenance of a morally conducive and
orderly educational environment will be seriously imperiled if, under the
circumstances of this case, Grace Christian is forced to admit petitioner's
children and to reintegrate them to the student body."46 Thus, the decision
of petitioner university to expel them is but congruent with the gravity of
their misdeeds. That there must be such a congruence between the offense
committed and the sanction imposed was stressed in Malabanan v.
Ramento.47
Having carefully reviewed the records and the procedure followed by
petitioner university, we see no reason to reverse its decision founded on
the following undisputed facts: that on February 8, 9 and 10, 1991, the
Aquila Legis Fraternity conducted hazing activities; that respondent
students were present at the hazing as auxiliaries, and that as a result of
the hazing, Leonardo Villa died from serious physical injuries, while
Bienvenido Marquez was hospitalized. In light of the vicious acts of
respondent students upon those whom ironically they would claim as
"brothers" after the initiation rites, how can we countenance the
imposition of such nominal penalties as reprimand or even suspension?
We, therefore, affirm petitioners' imposition of the penalty of dismissal