Republic of the Philippines Quimpo that their stalls should be removed to give way to the
SUPREME COURT "People's Park".2 On 12 July 1990, the group, led by their President
Manila
EN BANC
G.R. No. 100150 January 5, 1994
BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO
ABELARDO, AND GENEROSO OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND
OTHERS AS JOHN DOES, respondents.
The City Attorney for petitioners.
The Solicitor General for public respondent.
VITUG, J.:
The extent of the authority and power of the Commission on
Human Rights ("CHR") is again placed into focus in this petition for
prohibition, with prayer for a restraining order and preliminary
injunction. The petitioners ask us to prohibit public respondent
CHR from further hearing and investigating CHR Case No. 90-
1580, entitled "Fermo, et al. vs. Quimpo, et al."
The case all started when a "Demolition Notice," dated 9 July 1990,
signed by Carlos Quimpo (one of the petitioners) in his capacity as
an Executive Officer of the Quezon City Integrated Hawkers
Management Council under the Office of the City Mayor, was sent
to, and received by, the private respondents (being the officers and
members of the North EDSA Vendors Association, Incorporated).
In said notice, the respondents were given a grace-period of three
(3) days (up to 12 July 1990) within which to vacate the questioned
premises of North EDSA.1Prior to their receipt of the demolition
notice, the private respondents were informed by petitioner
Roque Fermo, filed a letter-complaint (Pinag-samang Sinumpaang
Salaysay) with the CHR against the petitioners, asking the late
CHR Chairman Mary Concepcion Bautista for a letter to be
addressed to then Mayor Brigido Simon, Jr., of Quezon City to stop
the demolition of the private respondents' stalls, sari-sari stores,
and carinderia along North EDSA. The complaint was docketed as
CHR Case No. 90-1580.3 On 23 July 1990, the CHR issued an
Order, directing the petitioners "to desist from demolishing the
stalls and shanties at North EDSA pending resolution of the
vendors/squatters' complaint before the Commission" and ordering
said petitioners to appear before the CHR.4
On the basis of the sworn statements submitted by the private
respondents on 31 July 1990, as well as CHR's own ocular
inspection, and convinced that on 28 July 1990 the petitioners
carried out the demolition of private respondents' stalls, sari-
sari stores and carinderia,5 the CHR, in its resolution of 1 August
1990, ordered the disbursement of financial assistance of not more
than P200,000.00 in favor of the private respondents to purchase
light housing materials and food under the Commission's
supervision and again directed the petitioners to "desist from
further demolition, with the warning that violation of said order
would lead to a citation for contempt and arrest."6
A motion to dismiss,7 dated 10 September 1990, questioned CHR's
jurisdiction. The motion also averred, among other things, that:
1. this case came about due to the alleged violation
by the (petitioners) of the Inter-Agency
Memorandum of Agreement whereby Metro-
Manila Mayors agreed on a moratorium in the
demolition of the dwellings of poor dwellers in
Metro-Manila;
xxx xxx xxx
 3. . . . , a perusal of the said Agreement (revealed)
that the moratorium referred to therein refers to
moratorium in the demolition of the structures of
poor dwellers;
4. that the complainants in this case (were) not
poor dwellers but independent business
entrepreneurs even this Honorable Office admitted
in its resolution of 1 August 1990 that the
complainants are indeed, vendors;
5. that the complainants (were) occupying
government land, particularly the sidewalk of
EDSA corner North Avenue, Quezon City; . . . and
6. that the City Mayor of Quezon City (had) the sole
and exclusive discretion and authority whether or
not a certain business establishment (should) be
allowed to operate within the jurisdiction of Quezon
City, to revoke or cancel a permit, if already issued,
upon grounds clearly specified by law and
ordinance.8
During the 12 September 1990 hearing, the petitioners moved for
postponement, arguing that the motion to dismiss set for 21
September 1990 had yet to be resolved. The petitioners likewise
manifested that they would bring the case to the courts.
On 18 September 1990 a supplemental motion to dismiss was filed
by the petitioners, stating that the Commission's authority should
be understood as being confined only to the investigation of
violations of civil and political rights, and that "the rights allegedly
violated in this case (were) not civil and political rights, (but) their
privilege to engage in business."9
On 21 September 1990, the motion to dismiss was heard and
submitted for resolution, along with the contempt charge that had
meantime been filed by the private respondents, albeit vigorously
objected to by petitioners (on the ground that the motion to dismiss
was still then unresolved).10
In an Order,11 dated 25 September 1990, the CHR cited the
petitioners in contempt for carrying out the demolition of the
stalls, sari-sari stores and carinderia despite the "order to desist",
and it imposed a fine of P500.00 on each of them.
On 1 March 1991,12 the CHR issued an Order, denying petitioners'
motion to dismiss and supplemental motion to dismiss, in this wise:
Clearly, the Commission on Human Rights under
its constitutional mandate had jurisdiction over the
complaint filed by the squatters-vendors who
complained of the gross violations of their human
and constitutional rights. The motion to dismiss
should be and is hereby DENIED for lack of merit.13
The CHR opined that "it was not the intention of the (Constitutional)
Commission to create only a paper tiger limited only to
investigating civil and political rights, but it (should) be (considered)
a quasi-judicial body with the power to provide appropriate legal
measures for the protection of human rights of all persons within
the Philippines . . . ." It added:
The right to earn a living is a right essential to one's
right to development, to life and to dignity. All these
brazenly and violently ignored and trampled upon
by respondents with little regard at the same time
for the basic rights of women and children, and
their health, safety and welfare. Their actions have
psychologically scarred and traumatized the
children, who were witness and exposed to such a
violent demonstration of Man's inhumanity to man.
In an Order,14 dated 25 April 1991, petitioners' motion for
reconsideration was denied.
Hence, this recourse.
The petition was initially dismissed in our resolution15 of 25 June
1991; it was subsequently reinstated, however, in our
resolution16 of 18 June 1991, in which we also issued a temporary
restraining order, directing the CHR to "CEASE and DESIST from
further hearing CHR No. 90-1580."17
The petitioners pose the following:
Whether or not the public respondent has jurisdiction:
a) to investigate the alleged violations of the "business rights" of
the private respondents whose stalls were demolished by the
petitioners at the instance and authority given by the Mayor of
Quezon City;
b) to impose the fine of P500.00 each on the petitioners; and
c) to disburse the amount of P200,000.00 as financial aid to the
vendors affected by the demolition.
In the Court's resolution of 10 October 1991, the Solicitor-General
was excused from filing his comment for public respondent CHR.
The latter thus filed its own comment,18 through Hon. Samuel
Soriano, one of its Commissioners. The Court also resolved to
dispense with the comment of private respondent Roque Fermo,
who had since failed to comply with the resolution, dated 18 July
1991, requiring such comment.
The petition has merit.
The Commission on Human Rights was created by the 1987
Constitution.19 It was formally constituted by then President
Corazon Aquino via Executive Order No. 163,20 issued on 5 May
1987, in the exercise of her legislative power at the time. It
succeeded, but so superseded as well, the Presidential Committee
on Human Rights.21
The powers and functions22 of the Commission are defined by the
1987 Constitution, thus: to —
(1) Investigate, on its own or on complaint by any
party, all forms of human rights violations involving
civil and political rights;
(2) Adopt its operational guidelines and rules of
procedure, and cite for contempt for violations
thereof in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the
protection of human rights of all persons within the
Philippines, as well as Filipinos residing abroad,
and provide for preventive measures and legal aid
services to the underprivileged whose human
rights have been violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or
detention facilities;
(5) Establish a continuing program of research,
education, and information to enhance respect for
the primacy of human rights;
(6) Recommend to the Congress effective
measures to promote human rights and to provide
for compensation to victims of violations of human
rights, or their families;
 (7) Monitor the Philippine Government's
compliance with international treaty obligations on
human rights;
(8) Grant immunity from prosecution to any person
whose testimony or whose possession of
documents or other evidence is necessary or
convenient to determine the truth in any
investigation conducted by it or under its authority;
(9) Request the assistance of any department,
bureau, office, or agency in the performance of its
functions;
(10) Appoint its officers and employees in
accordance with law; and
(11) Perform such other duties and functions as
may be provided by law.
In its Order of 1 March 1991, denying petitioners' motion to dismiss,
the CHR theorizes that the intention of the members of the
Constitutional Commission is to make CHR a quasi-judicial
body.23 This view, however, has not heretofore been shared by this
Court. In Cariño v. Commission on Human Rights,24 the Court,
through then Associate Justice, now Chief Justice Andres
Narvasa, has observed that it is "only the first of the enumerated
powers and functions that bears any resemblance to adjudication
or adjudgment," but that resemblance can in no way be
synonymous to the adjudicatory power itself. The Court explained:
. . . (T)he Commission on Human Rights . . . was
not meant by the fundamental law to be another
court or quasi-judicial agency in this country, or
duplicate much less take over the functions of the
latter.
The most that may be conceded to the Commission
in the way of adjudicative power is that it may
investigate, i.e., receive evidence and make
findings of fact as regards claimed human rights
violations involving civil and political rights. But fact
finding is not adjudication, and cannot be likened to
the judicial function of a court of justice, or even a
quasi-judicial agency or official. The function of
receiving evidence and ascertaining therefrom the
facts of a controversy is not a judicial function,
properly speaking. To be considered such, the
faculty of receiving evidence and making factual
conclusions in a controversy must be accompanied
by the authority of applying the law to those factual
conclusions to the end that the controversy may be
decided or determined authoritatively, finally and
definitively, subject to such appeals or modes of
review as may be provided by law. This function, to
repeat, the Commission does not have.
After thus laying down at the outset the above rule, we now
proceed to the other kernel of this controversy and, its is, to
determine the extent of CHR's investigative power.
It can hardly be disputed that the phrase "human rights" is so
generic a term that any attempt to define it, albeit not a few have
tried, could at best be described as inconclusive. Let us observe.
In a symposium on human rights in the Philippines, sponsored by
the University of the Philippines in 1977, one of the questions that
has been propounded is "(w)hat do you understand by "human
rights?" The participants, representing different sectors of the
society, have given the following varied answers:
Human rights are the basic rights which inhere in
man by virtue of his humanity. They are the same
in all parts of the world, whether the Philippines or
England, Kenya or the Soviet Union, the United
States or Japan, Kenya or Indonesia . . . .
 Human rights include civil rights, such as the right
to life, liberty, and property; freedom of speech, of
the press, of religion, academic freedom, and the
rights of the accused to due process of law; political
rights, such as the right to elect public officials, to
be elected to public office, and to form political
associations and engage in politics; and social
rights, such as the right to an education,
employment, and social services.25
Human rights are the entitlement that inhere in the
individual person from the sheer fact of his
humanity. . . . Because they are inherent, human
rights are not granted by the State but can only be
recognized and protected by it.26
(Human rights include all) the civil, political,
economic, social, and cultural rights defined in the
Universal Declaration of Human Rights.27
Human rights are rights that pertain to man simply
because he is human. They are part of his natural
birth, right, innate and inalienable.28
The Universal Declaration of Human Rights, as well as, or more
specifically, the International Covenant on Economic, Social and
Cultural Rights and International Covenant on Civil and Political
Rights, suggests that the scope of human rights can be understood
to include those that relate to an individual's social, economic,
cultural, political and civil relations. It thus seems to closely identify
the term to the universally accepted traits and attributes of an
individual, along with what is generally considered to be his
inherent and inalienable rights, encompassing almost all aspects
of life.
Have these broad concepts been equally contemplated by the
framers of our 1986 Constitutional Commission in adopting the
specific provisions on human rights and in creating an independent
commission to safeguard these rights? It may of value to look back
at the country's experience under the martial law regime which may
have, in fact, impelled the inclusions of those provisions in our
fundamental law. Many voices have been heard. Among those
voices, aptly represented perhaps of the sentiments expressed by
others, comes from Mr. Justice J.B.L. Reyes, a respected jurist and
an advocate of civil liberties, who, in his paper, entitled "Present
State of Human Rights in the Philippines,"29 observes:
But while the Constitution of 1935 and that of 1973
enshrined in their Bill of Rights most of the human
rights expressed in the International Covenant,
these rights became unavailable upon the
proclamation of Martial Law on 21 September
1972. Arbitrary action then became the rule.
Individuals by the thousands became subject to
arrest upon suspicion, and were detained and held
for indefinite periods, sometimes for years, without
charges, until ordered released by the
Commander-in-Chief or this representative. The
right to petition for the redress of grievances
became useless, since group actions were
forbidden. So were strikes. Press and other mass
media were subjected to censorship and short term
licensing. Martial law brought with it the suspension
of the writ of habeas corpus, and judges lost
independence and security of tenure, except
members of the Supreme Court. They were
required to submit letters of resignation and were
dismissed upon the acceptance thereof. Torture to
extort confessions were practiced as declared by
international bodies like Amnesty International and
the International Commission of Jurists.
Converging our attention to the records of the Constitutional
Commission, we can see the following discussions during its 26
August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR) task
must be made clear in view of the importance of
human rights and also because civil and political
rights have been determined by many international
covenants and human rights legislations in the
Philippines, as well as the Constitution, specifically
the Bill of Rights and subsequent legislation.
Otherwise, if we cover such a wide territory in area,
we might diffuse its impact and the precise nature
of its task, hence, its effectivity would also be
curtailed.
So, it is important to delienate the parameters of its
tasks so that the commission can be most effective.
MR. BENGZON. That is precisely my difficulty
because civil and political rights are very broad.
The Article on the Bill of Rights covers civil and
political rights. Every single right of an individual
involves his civil right or his political right. So,
where do we draw the line?
MR. GARCIA. Actually, these civil and political
rights have been made clear in the language of
human rights advocates, as well as in the Universal
Declaration of Human Rights which addresses a
number of articles on the right to life, the right
against torture, the right to fair and public hearing,
and so on. These are very specific rights that are
considered enshrined in many international
documents and legal instruments as constituting
civil and political rights, and these are precisely
what we want to defend here.
MR. BENGZON. So, would the commissioner say
civil and political rights as defined in the Universal
Declaration of Human Rights?
MR. GARCIA. Yes, and as I have mentioned, the
International Covenant of Civil and Political Rights
distinguished this right against torture.
MR. BENGZON. So as to distinguish this from the
other rights that we have?
MR. GARCIA. Yes, because the other rights will
encompass social and economic rights, and there
are other violations of rights of citizens which can
be addressed to the proper courts and authorities.
xxx xxx xxx
MR. BENGZON. So, we will authorize the
commission to define its functions, and, therefore,
in doing that the commission will be authorized to
take under its wings cases which perhaps
heretofore or at this moment are under the
jurisdiction of the ordinary investigative and
prosecutorial agencies of the government. Am I
correct?
MR. GARCIA. No. We have already mentioned
earlier that we would like to define the specific
parameters which cover civil and political rights as
covered by the international standards governing
the behavior of governments regarding the
particular political and civil rights of citizens,
especially of political detainees or prisoners. This
particular aspect we have experienced during
martial law which we would now like to safeguard.
MR. BENGZON. Then, I go back to that question
that I had. Therefore, what we are really trying to
say is, perhaps, at the proper time we could specify
all those rights stated in the Universal Declaration
of Human Rights and defined as human rights.
Those are the rights that we envision here?
MR. GARCIA. Yes. In fact, they are also enshrined
in the Bill of Rights of our Constitution. They are
integral parts of that.
MR. BENGZON. Therefore, is the Gentleman
saying that all the rights under the Bill of Rights
covered by human rights?
MR. GARCIA. No, only those that pertain to civil
and political rights.
xxx xxx xxx
MR. RAMA. In connection with the discussion on
the scope of human rights, I would like to state that
in the past regime, everytime we invoke the
violation of human rights, the Marcos regime came
out with the defense that, as a matter of fact, they
had defended the rights of people to decent living,
food, decent housing and a life consistent with
human dignity.
So, I think we should really limit the definition of
human rights to political rights. Is that the sense of
the committee, so as not to confuse the issue?
MR. SARMIENTO. Yes, Madam President.
MR. GARCIA. I would like to continue and respond
also to repeated points raised by the previous
speaker.
There are actually six areas where this
Commission on Human Rights could act
effectively: 1) protection of rights of political
detainees; 2) treatment of prisoners and the
prevention of tortures; 3) fair and public trials; 4)
cases of disappearances; 5) salvagings and
hamletting; and 6) other crimes committed against
the religious.
xxx xxx xxx
The PRESIDENT. Commissioner Guingona is
recognized.
MR. GUINGONA. Thank You Madam President.
I would like to start by saying that I agree with
Commissioner Garcia that we should, in order to
make the proposed Commission more effective,
delimit as much as possible, without prejudice to
future expansion. The coverage of the concept and
jurisdictional area of the term "human rights". I was
actually disturbed this morning when the reference
was made without qualification to the rights
embodied in the universal Declaration of Human
Rights, although later on, this was qualified to refer
to civil and political rights contained therein.
If I remember correctly, Madam President,
Commissioner Garcia, after mentioning the
Universal Declaration of Human Rights of 1948,
mentioned or linked the concept of human right
with other human rights specified in other
convention which I do not remember. Am I correct?
MR. GARCIA. Is Commissioner Guingona referring
to the Declaration of Torture of 1985?
MR. GUINGONA. I do not know, but the
commissioner mentioned another.
MR. GARCIA. Madam President, the other one is
the International Convention on Civil and Political
Rights of which we are signatory.
MR. GUINGONA. I see. The only problem is that,
although I have a copy of the Universal Declaration
of Human Rights here, I do not have a copy of the
other covenant mentioned. It is quite possible that
there are rights specified in that other convention
which may not be specified here. I was wondering
whether it would be wise to link our concept of
human rights to general terms like "convention,"
rather than specify the rights contained in the
convention.
As far as the Universal Declaration of Human
Rights is concerned, the Committee, before the
period of amendments, could specify to us which of
these articles in the Declaration will fall within the
concept of civil and political rights, not for the
purpose of including these in the proposed
constitutional article, but to give the sense of the
Commission as to what human rights would be
included, without prejudice to expansion later on, if
the need arises. For example, there was no definite
reply to the question of Commissioner Regalado as
to whether the right to marry would be considered
a civil or a social right. It is not a civil right?
MR. GARCIA. Madam President, I have to repeat
the various specific civil and political rights that we
felt must be envisioned initially by this provision —
freedom from political detention and arrest
prevention of torture, right to fair and public trials,
as well as crimes involving disappearance,
salvagings, hamlettings and collective
violations. So, it is limited to politically related
crimes precisely to protect the civil and political
rights of a specific group of individuals, and
therefore, we are not opening it up to all of the
definite areas.
MR. GUINGONA. Correct. Therefore, just for the
record, the Gentlemen is no longer linking his
concept or the concept of the Committee on
Human Rights with the so-called civil or political
rights as contained in the Universal Declaration of
Human Rights.
MR. GARCIA. When I mentioned earlier the
Universal Declaration of Human Rights, I was
referring to an international instrument.
MR. GUINGONA. I know.
MR. GARCIA. But it does not mean that we will
refer to each and every specific article therein, but
only to those that pertain to the civil and politically
related, as we understand it in this Commission on
Human Rights.
MR. GUINGONA. Madam President, I am not even
clear as to the distinction between civil and social
rights.
MR. GARCIA. There are two international
covenants: the International Covenant and Civil
and Political Rights and the International Covenant
on Economic, Social and Cultural Rights. The
second covenant contains all the different rights-
the rights of labor to organize, the right to
education, housing, shelter, et cetera.
MR. GUINGONA. So we are just limiting at the
moment the sense of the committee to those that
the Gentlemen has specified.
MR. GARCIA. Yes, to civil and political rights.
MR. GUINGONA. Thank you.
xxx xxx xxx
SR. TAN. Madam President, from the standpoint of
the victims of human rights, I cannot stress more
on how much we need a Commission on Human
Rights. . . .
. . . human rights victims are usually penniless.
They cannot pay and very few lawyers will accept
clients who do not pay. And so, they are the ones
more abused and oppressed. Another reason is,
the cases involved are very delicate — torture,
salvaging, picking up without any warrant of arrest,
massacre — and the persons who are allegedly
guilty are people in power like politicians, men in
the military and big shots. Therefore, this Human
Rights Commission must be independent.
I would like very much to emphasize how much we
need this commission, especially for the little
Filipino, the little individual who needs this kind of
help and cannot get it. And I think we should
concentrate only on civil and political violations
because if we open this to land, housing and
health, we will have no place to go again and we
will not receive any response. . . .30 (emphasis
supplied)
The final outcome, now written as Section 18, Article XIII, of the
1987 Constitution, is a provision empowering the Commission on
Human Rights to "investigate, on its own or on complaint by any
party, all forms of human rights violations involving civil and
political rights" (Sec. 1).
The term "civil rights,"31 has been defined as referring —
(t)o those (rights) that belong to every citizen of the
state or country, or, in wider sense, to all its
inhabitants, and are not connected with the
organization or administration of the government.
They include the rights of property, marriage, equal
protection of the laws, freedom of contract, etc. Or,
as otherwise defined civil rights are rights
appertaining to a person by virtue of his citizenship
in a state or community. Such term may also refer,
in its general sense, to rights capable of being
enforced or redressed in a civil action.
Also quite often mentioned are the guarantees against involuntary
servitude, religious persecution, unreasonable searches and
seizures, and imprisonment for debt.32
Political rights,33 on the other hand, are said to refer to the right to
participate, directly or indirectly, in the establishment or
administration of government, the right of suffrage, the right to hold
public office, the right of petition and, in general, the rights
appurtenant to citizenship vis-a-vis the management of
government.34
Recalling the deliberations of the Constitutional Commission,
aforequoted, it is readily apparent that the delegates envisioned a
Commission on Human Rights that would focus its attention to the
more severe cases of human rights violations. Delegate Garcia, for
instance, mentioned such areas as the "(1) protection of rights of
political detainees, (2) treatment of prisoners and the prevention of
tortures, (3) fair and public trials, (4) cases of disappearances, (5)
salvagings and hamletting, and (6) other crimes committed against
the religious." While the enumeration has not likely been meant to
have any preclusive effect, more than just expressing a statement
of priority, it is, nonetheless, significant for the tone it has set. In
any event, the delegates did not apparently take comfort in
peremptorily making a conclusive delineation of the CHR's scope
of investigatorial jurisdiction. They have thus seen it fit to resolve,
instead, that "Congress may provide for other cases of violations
of human rights that should fall within the authority of the
Commission, taking into account its recommendation."35
In the particular case at hand, there is no cavil that what are sought
to be demolished are the stalls, sari-sari stores and carinderia, as
well as temporary shanties, erected by private respondents on a
land which is planned to be developed into a "People's Park". More
than that, the land adjoins the North EDSA of Quezon City which,
this Court can take judicial notice of, is a busy national highway.
The consequent danger to life and limb is not thus to be likewise
simply ignored. It is indeed paradoxical that a right which is claimed
to have been violated is one that cannot, in the first place, even be
invoked, if it is, in fact, extant. Be that as it may, looking at the
standards hereinabove discoursed vis-a-vis the circumstances
obtaining in this instance, we are not prepared to conclude that the
order for the demolition of the stalls, sari-sari stores
and carinderia of the private respondents can fall within the
compartment of "human rights violations involving civil and political
rights" intended by the Constitution.
On its contempt powers, the CHR is constitutionally authorized to
"adopt its operational guidelines and rules of procedure, and cite
for contempt for violations thereof in accordance with the Rules of
Court." Accordingly, the CHR acted within its authority in providing
in its revised rules, its power "to cite or hold any person in direct or
indirect contempt, and to impose the appropriate penalties in
accordance with the procedure and sanctions provided for in the
Rules of Court." That power to cite for contempt, however, should
be understood to apply only to violations of its adopted operational
guidelines and rules of procedure essential to carry out its
investigatorial powers. To exemplify, the power to cite for contempt
could be exercised against persons who refuse to cooperate with
the said body, or who unduly withhold relevant information, or who
decline to honor summons, and the like, in pursuing its
investigative work. The "order to desist" (a semantic interplay for a
restraining order) in the instance before us, however, is not
investigatorial in character but prescinds from an adjudicative
power that it does not possess. In Export Processing Zone
Authority vs. Commission on Human Rights,36 the Court, speaking
through Madame Justice Carolina Griño-Aquino, explained:
The constitutional provision directing the CHR to
"provide for preventive measures and legal aid
services to the underprivileged whose human
rights have been violated or need protection" may
not be construed to confer jurisdiction on the
Commission to issue a restraining order or writ of
injunction for, it that were the intention, the
Constitution would have expressly said so.
"Jurisdiction is conferred only by the Constitution or
by law". It is never derived by implication.
Evidently, the "preventive measures and legal aid
services" mentioned in the Constitution refer to
extrajudicial and judicial remedies (including a writ
of preliminary injunction) which the CHR may seek
from proper courts on behalf of the victims of
human rights violations. Not being a court of
justice, the CHR itself has no jurisdiction to issue
the writ, for a writ of preliminary injunction may only
be issued "by the judge of any court in which the
action is pending [within his district], or by a Justice
of the Court of Appeals, or of the Supreme Court. .
. . A writ of preliminary injunction is an ancillary
remedy. It is available only in a pending principal
action, for the preservation or protection of the
 rights and interests of a party thereto, and for no
other purpose." (footnotes omitted).

The Commission does have legal standing to indorse, for

appropriate action, its findings and recommendations to any
appropriate agency of government.37

The challenge on the CHR's disbursement of the amount of

P200,000.00 by way of financial aid to the vendors affected by the
demolition is not an appropriate issue in the instant petition. Not
only is there lack of locus standi on the part of the petitioners to
question the disbursement but, more importantly, the matter lies
with the appropriate administrative agencies concerned to initially
consider.

The public respondent explains that this petition for prohibition filed
by the petitioners has become moot and academic since the case
before it (CHR Case No. 90-1580) has already been fully heard,
and that the matter is merely awaiting final resolution. It is true that
prohibition is a preventive remedy to restrain the doing of an act
about to be done, and not intended to provide a remedy for an act
already accomplished. 38 Here, however, said Commission
admittedly has yet to promulgate its resolution in CHR Case No.
90-1580. The instant petition has been intended, among other
things, to also prevent CHR from precisely doing that.39

WHEREFORE, the writ prayed for in this petition is GRANTED.

The Commission on Human Rights is hereby prohibited from
further proceeding with CHR Case No. 90-1580 and from
implementing the P500.00 fine for contempt. The temporary
restraining order heretofore issued by this Court is made
permanent. No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr.,

Romero, Nocon, Bellosillo, Melo, Quiason and Puno, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24693 July 31, 1967
ERMITA-MALATE HOTEL AND MOTEL OPERATORS
ASSOCIATION, INC., HOTEL DEL MAR INC. and GO
CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-
appellant.
VICTOR ALABANZA, intervenor-appellee.
Panganiban, Abad and Associates Law Office for respondent-
appellant.
J. M. Aruego, Tenchavez and Associates for intervenor-appellee.
FERNANDO, J.:
The principal question in this appeal from a judgment of the lower
court in an action for prohibition is whether Ordinance No. 4760 of
the City of Manila is violative of the due process clause. The lower
court held that it is and adjudged it "unconstitutional, and,
therefore, null and void." For reasons to be more specifically set
forth, such judgment must be reversed, there being a failure of the
requisite showing to sustain an attack against its validity.
The petition for prohibition against Ordinance No. 4760 was filed
on July 5, 1963 by the petitioners, Ermita-Malate Hotel and Motel
Operators Association, one of its members, Hotel del Mar Inc., and
a certain Go Chiu, who is "the president and general manager of
the second petitioner" against the respondent Mayor of the City of
Manila who was sued in his capacity as such "charged with the
general power and duty to enforce ordinances of the City of Manila
and to give the necessary orders for the faithful execution and
enforcement of such ordinances." (par. 1). It was alleged that the
petitioner non-stock corporation is dedicated to the promotion and
protection of the interest of its eighteen (18) members "operating
hotels and motels, characterized as legitimate businesses duly
licensed by both national and city authorities, regularly paying
taxes, employing and giving livelihood to not less than 2,500
person and representing an investment of more than P3
million."1 (par. 2). It was then alleged that on June 13, 1963, the
Municipal Board of the City of Manila enacted Ordinance No. 4760,
approved on June 14, 1963 by the then Vice-Mayor Herminio
Astorga, who was at the time acting as Mayor of the City of Manila.
(par. 3).
After which the alleged grievances against the ordinance were set
forth in detail. There was the assertion of its being beyond the
powers of the Municipal Board of the City of Manila to enact insofar
as it would regulate motels, on the ground that in the revised
charter of the City of Manila or in any other law, no reference is
made to motels; that Section 1 of the challenged ordinance is
unconstitutional and void for being unreasonable and violative of
due process insofar as it would impose P6,000.00 fee per annum
for first class motels and P4,500.00 for second class motels; that
the provision in the same section which would require the owner,
manager, keeper or duly authorized representative of a hotel,
motel, or lodging house to refrain from entertaining or accepting
any guest or customer or letting any room or other quarter to any
person or persons without his filling up the prescribed form in a
lobby open to public view at all times and in his presence, wherein
the surname, given name and middle name, the date of birth, the
address, the occupation, the sex, the nationality, the length of stay
and the number of companions in the room, if any, with the name,
relationship, age and sex would be specified, with data furnished
as to his residence certificate as well as his passport number, if
any, coupled with a certification that a person signing such form
has personally filled it up and affixed his signature in the presence
of such owner, manager, keeper or duly authorized representative,
with such registration forms and records kept and bound together,
it also being provided that the premises and facilities of such hotels,
motels and lodging houses would be open for inspection either by
the City Mayor, or the Chief of Police, or their duly authorized
representatives is unconstitutional and void again on due process
grounds, not only for being arbitrary, unreasonable or oppressive
but also for being vague, indefinite and uncertain, and likewise for
the alleged invasion of the right to privacy and the guaranty against
self-incrimination; that Section 2 of the challenged ordinance
classifying motels into two classes and requiring the maintenance
of certain minimum facilities in first class motels such as a
telephone in each room, a dining room or, restaurant and laundry
similarly offends against the due process clause for being arbitrary,
unreasonable and oppressive, a conclusion which applies to the
portion of the ordinance requiring second class motels to have a
dining room; that the provision of Section 2 of the challenged
ordinance prohibiting a person less than 18 years old from being
accepted in such hotels, motels, lodging houses, tavern or
common inn unless accompanied by parents or a lawful guardian
and making it unlawful for the owner, manager, keeper or duly
authorized representative of such establishments to lease any
room or portion thereof more than twice every 24 hours, runs
counter to the due process guaranty for lack of certainty and for its
unreasonable, arbitrary and oppressive character; and that insofar
as the penalty provided for in Section 4 of the challenged ordinance
for a subsequent conviction would, cause the automatic
cancellation of the license of the offended party, in effect causing
the destruction of the business and loss of its investments, there is
once again a transgression of the due process clause.
There was a plea for the issuance of preliminary injunction and for
a final judgment declaring the above ordinance null and void and
unenforceable. The lower court on July 6, 1963 issued a writ of
preliminary injunction ordering respondent Mayor to refrain from
enforcing said Ordinance No. 4760 from and after July 8, 1963.
In the a answer filed on August 3, 1963, there was an admission of
the personal circumstances regarding the respondent Mayor and
of the fact that petitioners are licensed to engage in the hotel or
motel business in the City of Manila, of the provisions of the cited
Ordinance but a denial of its alleged nullity, whether on statutory or
constitutional grounds. After setting forth that the petition did fail to
state a cause of action and that the challenged ordinance bears a
reasonable relation, to a proper purpose, which is to curb
immorality, a valid and proper exercise of the police power and that
only the guests or customers not before the court could complain
of the alleged invasion of the right to privacy and the guaranty
against self incrimination, with the assertion that the issuance of
the preliminary injunction ex parte was contrary to law, respondent
Mayor prayed for, its dissolution and the dismissal of the petition.
Instead of evidence being offered by both parties, there was
submitted a stipulation of facts dated September 28, 1964, which
reads:
1. That the petitioners Ermita-Malate Hotel and Motel
Operators Association, Inc. and Hotel del Mar Inc. are duly
organized and existing under the laws of the Philippines,
both with offices in the City of Manila, while the petitioner
Go Chin is the president and general manager of Hotel del
Mar Inc., and the intervenor Victor Alabanza is a resident
of Baguio City, all having the capacity to sue and be sued;
2. That the respondent Mayor is the duly elected and
incumbent City Mayor and chief executive of the City of
Manila charged with the general power and duty to enforce
ordinances of the City of Manila and to give the necessary
orders for the faithful execution and enforcement of such
ordinances;
3. That the petitioners are duly licensed to engage in the
business of operating hotels and motels in Malate and
Ermita districts in Manila;
4. That on June 13, 1963, the Municipal Board of the City
of Manila enacted Ordinance No. 4760, which was
 approved on June 14, 1963, by Vice-Mayor Herminio
Astorga, then the acting City Mayor of Manila, in the
absence of the respondent regular City Mayor, amending
sections 661, 662, 668-a, 668-b and 669 of the compilation
of the ordinances of the City of Manila besides inserting
therein three new sections. This ordinance is similar to the
one vetoed by the respondent Mayor (Annex A) for the
reasons stated in its 4th Indorsement dated February 15,
1963 (Annex B);
5. That the explanatory note signed by then Councilor
Herminio Astorga was submitted with the proposed
ordinance (now Ordinance 4760) to the Municipal Board,
copy of which is attached hereto as Annex C;
6. That the City of Manila derived in 1963 an annual income
of P101,904.05 from license fees paid by the 105 hotels
and motels (including herein petitioners) operating in the
City of Manila.1äwphï1.ñët
Thereafter came a memorandum for respondent on January 22,
1965, wherein stress was laid on the presumption of the validity of
the challenged ordinance, the burden of showing its lack of
conformity to the Constitution resting on the party who assails it,
citing not only U.S. v. Salaveria, but likewise applicable American
authorities. Such a memorandum likewise refuted point by point
the arguments advanced by petitioners against its validity. Then
barely two weeks later, on February 4, 1965, the memorandum for
petitioners was filed reiterating in detail what was set forth in the
petition, with citations of what they considered to be applicable
American authorities and praying for a judgment declaring the
challenged ordinance "null and void and unenforceable" and
making permanent the writ of preliminary injunction issued.
After referring to the motels and hotels, which are members of the
petitioners association, and referring to the alleged constitutional
questions raised by the party, the lower court observed: "The only
remaining issue here being purely a question of law, the parties,
with the nod of the Court, agreed to file memoranda and thereafter,
to submit the case for decision of the Court." It does appear
obvious then that without any evidence submitted by the parties,
the decision passed upon the alleged infirmity on constitutional
grounds of the challenged ordinance, dismissing as is undoubtedly
right and proper the untenable objection on the alleged lack of
authority of the City of Manila to regulate motels, and came to the
conclusion that "the challenged Ordinance No. 4760 of the City of
Manila, would be unconstitutional and, therefore, null and void." It
made permanent the preliminary injunction issued against
respondent Mayor and his agents "to restrain him from enforcing
the ordinance in question." Hence this appeal.
As noted at the outset, the judgment must be reversed. A decent
regard for constitutional doctrines of a fundamental character
ought to have admonished the lower court against such a sweeping
condemnation of the challenged ordinance. Its decision cannot be
allowed to stand, consistently with what has hitherto been the
accepted standards of constitutional adjudication, in both
procedural and substantive aspects.
Primarily what calls for a reversal of such a decision is the absence
of any evidence to offset the presumption of validity that attaches
to a challenged statute or ordinance. As was expressed
categorically by Justice Malcolm: "The presumption is all in favor
of validity x x x . The action of the elected representatives of the
people cannot be lightly set aside. The councilors must, in the very
nature of things, be familiar with the necessities of their particular
municipality and with all the facts and circumstances which
surround the subject and necessitate action. The local legislative
body, by enacting the ordinance, has in effect given notice that the
regulations are essential to the well being of the people x x x . The
Judiciary should not lightly set aside legislative action when there
is not a clear invasion of personal or property rights under the guise
of police regulation.2
It admits of no doubt therefore that there being a presumption of
validity, the necessity for evidence to rebut it is unavoidable, unless
the statute or ordinance is void on its face which is not the case
here. The principle has been nowhere better expressed than in the
leading case of O'Gorman & Young v. Hartford Fire Insurance
Co.,3 where the American Supreme Court through Justice
Brandeis tersely and succinctly summed up the matter thus: The
statute here questioned deals with a subject clearly within the
scope of the police power. We are asked to declare it void on the
ground that the specific method of regulation prescribed is
unreasonable and hence deprives the plaintiff of due process of
law. As underlying questions of fact may condition the
constitutionality of legislation of this character, the resumption of
constitutionality must prevail in the absence of some factual
foundation of record for overthrowing the statute." No such factual
foundation being laid in the present case, the lower court deciding
the matter on the pleadings and the stipulation of facts, the
presumption of validity must prevail and the judgment against the
ordinance set aside.
Nor may petitioners assert with plausibility that on its face the
ordinance is fatally defective as being repugnant to the due
process clause of the Constitution. The mantle of protection
associated with the due process guaranty does not cover
petitioners. This particular manifestation of a police power measure
being specifically aimed to safeguard public morals is immune from
such imputation of nullity resting purely on conjecture and
unsupported by anything of substance. To hold otherwise would be
to unduly restrict and narrow the scope of police power which has
been properly characterized as the most essential, insistent and
the least limitable of powers,4 extending as it does "to all the great
public needs."5 It would be, to paraphrase another leading
decision, to destroy the very purpose of the state if it could be
deprived or allowed itself to be deprived of its competence to
promote public health, public morals, public safety and the genera
welfare.6 Negatively put, police power is "that inherent and plenary
power in the State which enables it to prohibit all that is hurt full to
the comfort, safety, and welfare of society.7
There is no question but that the challenged ordinance was
precisely enacted to minimize certain practices hurtful to public
morals. The explanatory note of the Councilor Herminio Astorga
included as annex to the stipulation of facts, speaks of the alarming
increase in the rate of prostitution, adultery and fornication in
Manila traceable in great part to the existence of motels, which
"provide a necessary atmosphere for clandestine entry, presence
and exit" and thus become the "ideal haven for prostitutes and
thrill-seekers." The challenged ordinance then proposes to check
the clandestine harboring of transients and guests of these
establishments by requiring these transients and guests to fill up a
registration form, prepared for the purpose, in a lobby open to
public view at all times, and by introducing several other
amendatory provisions calculated to shatter the privacy that
characterizes the registration of transients and guests." Moreover,
the increase in the licensed fees was intended to discourage
"establishments of the kind from operating for purpose other than
legal" and at the same time, to increase "the income of the city
government." It would appear therefore that the stipulation of facts,
far from sustaining any attack against the validity of the ordinance,
argues eloquently for it.
It is a fact worth noting that this Court has invariably stamped with
the seal of its approval, ordinances punishing vagrancy and
classifying a pimp or procurer as a vagrant;8 provide a license tax
for and regulating the maintenance or operation of public dance
halls;9 prohibiting gambling;10 prohibiting jueteng;11 and
monte; prohibiting playing of panguingui on days other than
12
Sundays or legal holidays;13 prohibiting the operation of pinball
machines;14 and prohibiting any person from keeping, conducting
or maintaining an opium joint or visiting a place where opium is
smoked or otherwise used,15 all of which are intended to protect
public morals.
On the legislative organs of the government, whether national or
local, primarily rest the exercise of the police power, which, it
cannot be too often emphasized, is the power to prescribe
regulations to promote the health, morals, peace, good order,
safety and general welfare of the people. In view of the
requirements of due process, equal protection and other applicable
constitutional guaranties however, the exercise of such police
power insofar as it may affect the life, liberty or property of any
person is subject to judicial inquiry. Where such exercise of police
power may be considered as either capricious, whimsical, unjust
or unreasonable, a denial of due process or a violation of any other
applicable constitutional guaranty may call for correction by the
courts.
We are thus led to considering the insistent, almost shrill tone, in
which the objection is raised to the question of due
process.16 There is no controlling and precise definition of due
process. It furnishes though a standard to which the governmental
action should conform in order that deprivation of life, liberty or
property, in each appropriate case, be valid. What then is the
standard of due process which must exist both as a procedural and
a substantive requisite to free the challenged ordinance, or any
governmental action for that matter, from the imputation of legal
infirmity sufficient to spell its doom? It is responsiveness to the
supremacy of reason, obedience to the dictates of justice.
Negatively put, arbitrariness is ruled out and unfairness avoided.
To satisfy the due process requirement, official action, to
paraphrase Cardozo, must not outrun the bounds of reason and
result in sheer oppression. Due process is thus hostile to any
official action marred by lack of reasonableness. Correctly it has
been identified as freedom from arbitrariness. It is the embodiment
of the sporting idea of fair play.17 It exacts fealty "to those strivings
for justice" and judges the act of officialdom of whatever branch "in
the light of reason drawn from considerations of fairness that reflect
[democratic] traditions of legal and political thought."18 It is not a
narrow or "technical conception with fixed content unrelated to
time, place and circumstances,"19 decisions based on such a
clause requiring a "close and perceptive inquiry into fundamental
principles of our society."20 Questions of due process are not to be
treated narrowly or pedantically in slavery to form or phrases.21
It would thus be an affront to reason to stigmatize an ordinance
enacted precisely to meet what a municipal lawmaking body
considers an evil of rather serious proportion an arbitrary and
capricious exercise of authority. It would seem that what should be
deemed unreasonable and what would amount to an abdication of
the power to govern is inaction in the face of an admitted
deterioration of the state of public morals. To be more specific, the
Municipal Board of the City of Manila felt the need for a remedial
measure. It provided it with the enactment of the challenged
ordinance. A strong case must be found in the records, and, as has
been set forth, none is even attempted here to attach to an
ordinance of such character the taint of nullity for an alleged failure
to meet the due process requirement. Nor does it lend any
semblance even of deceptive plausibility to petitioners' indictment
of Ordinance No. 4760 on due process grounds to single out such
features as the increased fees for motels and hotels, the
curtailment of the area of freedom to contract, and, in certain
particulars, its alleged vagueness.
Admittedly there was a decided increase of the annual license fees
provided for by the challenged ordinance for hotels and motels,
150% for the former and over 200% for the latter, first-class motels
being required to pay a P6,000 annual fee and second-class
motels, P4,500 yearly. It has been the settled law however, as far
back as 1922 that municipal license fees could be classified into
those imposed for regulating occupations or regular enterprises,
for the regulation or restriction of non-useful occupations or
enterprises and for revenue purposes only.22 As was explained
more in detail in the above Cu Unjieng case: (2) Licenses for non-
useful occupations are also incidental to the police power and the
right to exact a fee may be implied from the power to license and
regulate, but in fixing amount of the license fees the municipal
corporations are allowed a much wider discretion in this class of
cases than in the former, and aside from applying the well-known
legal principle that municipal ordinances must not be
unreasonable, oppressive, or tyrannical, courts have, as a general
rule, declined to interfere with such discretion. The desirability of
imposing restraint upon the number of persons who might
otherwise engage in non-useful enterprises is, of course, generally
an important factor in the determination of the amount of this kind
of license fee. Hence license fees clearly in the nature of privilege
taxes for revenue have frequently been upheld, especially in of
licenses for the sale of liquors. In fact, in the latter cases the fees
have rarely been declared unreasonable.23
Moreover in the equally leading case of Lutz v. Araneta24 this Court
affirmed the doctrine earlier announced by the American Supreme
Court that taxation may be made to implement the state's police
power. Only the other day, this Court had occasion to affirm that
the broad taxing authority conferred by the Local Autonomy Act of
1959 to cities and municipalities is sufficiently plenary to cover a
wide range of subjects with the only limitation that the tax so levied
is for public purposes, just and uniform.25
As a matter of fact, even without reference to the wide latitude
enjoyed by the City of Manila in imposing licenses for revenue, it
has been explicitly held in one case that "much discretion is given
to municipal corporations in determining the amount," here the
license fee of the operator of a massage clinic, even if it were
viewed purely as a police power measure.26 The discussion of this
particular matter may fitly close with this pertinent citation from
another decision of significance: "It is urged on behalf of the
plaintiffs-appellees that the enforcement of the ordinance could
deprive them of their lawful occupation and means of livelihood
because they can not rent stalls in the public markets. But it
appears that plaintiffs are also dealers in refrigerated or cold
storage meat, the sale of which outside the city markets under
certain conditions is permitted x x x . And surely, the mere fact, that
some individuals in the community may be deprived of their present
business or a particular mode of earning a living cannot prevent
the exercise of the police power. As was said in a case, persons
licensed to pursue occupations which may in the public need and
interest be affected by the exercise of the police power embark in
these occupations subject to the disadvantages which may result
from the legal exercise of that power."27
Nor does the restriction on the freedom to contract, insofar as the
challenged ordinance makes it unlawful for the owner, manager,
keeper or duly authorized representative of any hotel, motel,
lodging house, tavern, common inn or the like, to lease or rent room
or portion thereof more than twice every 24 hours, with a proviso
that in all cases full payment shall be charged, call for a different
conclusion. Again, such a limitation cannot be viewed as a
transgression against the command of due process. It is neither
unreasonable nor arbitrary. Precisely it was intended to curb the
opportunity for the immoral or illegitimate use to which such
premises could be, and, according to the explanatory note, are
being devoted. How could it then be arbitrary or oppressive when
there appears a correspondence between the undeniable
existence of an undesirable situation and the legislative attempt at
correction. Moreover, petitioners cannot be unaware that every
regulation of conduct amounts to curtailment of liberty which as
pointed out by Justice Malcolm cannot be absolute. Thus: "One
thought which runs through all these different conceptions of liberty
is plainly apparent. It is this: 'Liberty' as understood in democracies,
is not license; it is 'liberty regulated by law.' Implied in the term is
restraint by law for the good of the individual and for the greater
good of the peace and order of society and the general well-being.
No man can do exactly as he pleases. Every man must renounce
unbridled license. The right of the individual is necessarily subject
to reasonable restraint by general law for the common good x x x
The liberty of the citizen may be restrained in the interest of the
public health, or of the public order and safety, or otherwise within
the proper scope of the police power."28
A similar observation was made by Justice Laurel: "Public welfare,
then, lies at the bottom of the enactment of said law, and the state
in order to promote the general welfare may interfere with personal
liberty, with property, and with business and occupations. Persons
and property may be subjected to all kinds of restraints and
burdens, in order to secure the general comfort, health, and
prosperity of the state x x x To this fundamental aim of our
Government the rights of the individual are subordinated. Liberty is
a blessing without which life is a misery, but liberty should not be
made to prevail over authority because then society will fall into
anarchy. Neither should authority be made to prevail over liberty
because then the individual will fall into slavery. The citizen should
achieve the required balance of liberty and authority in his mind
through education and personal discipline, so that there may be
established the resultant equilibrium, which means peace and
order and happiness for all.29
It is noteworthy that the only decision of this Court nullifying
legislation because of undue deprivation of freedom to
contract, People v. Pomar,30 no longer "retains its virtuality as a
living principle. The policy of laissez faire has to some extent given
way to the assumption by the government of the right of
intervention even in contractual relations affected with public
interest.31 What may be stressed sufficiently is that if the liberty
involved were freedom of the mind or the person, the standard for
the validity of governmental acts is much more rigorous and
exacting, but where the liberty curtailed affects at the most rights
of property, the permissible scope of regulatory measure is
wider.32 How justify then the allegation of a denial of due process?
Lastly, there is the attempt to impugn the ordinance on another due
process ground by invoking the principles of vagueness or
uncertainty. It would appear from a recital in the petition itself that
what seems to be the gravamen of the alleged grievance is that the
provisions are too detailed and specific rather than vague or
uncertain. Petitioners, however, point to the requirement that a
guest should give the name, relationship, age and sex of the
companion or companions as indefinite and uncertain in view of
the necessity for determining whether the companion or
companions referred to are those arriving with the customer or
guest at the time of the registry or entering the room With him at
about the same time or coming at any indefinite time later to join
him; a proviso in one of its sections which cast doubt as to whether
the maintenance of a restaurant in a motel is dependent upon the
discretion of its owners or operators; another proviso which from
their standpoint would require a guess as to whether the "full rate
of payment" to be charged for every such lease thereof means a
full day's or merely a half-day's rate. It may be asked, do these
allegations suffice to render the ordinance void on its face for
alleged vagueness or uncertainty? To ask the question is to answer
it. From Connally v. General Construction Co.33 to Adderley v.
Florida,34 the principle has been consistently upheld that what
makes a statute susceptible to such a charge is an enactment
either forbidding or requiring the doing of an act that men of
common intelligence must necessarily guess at its meaning and
differ as to its application. Is this the situation before us? A citation
from Justice Holmes would prove illuminating: "We agree to all the
generalities about not supplying criminal laws with what they omit
but there is no canon against using common sense in construing
laws as saying what they obviously mean."35
That is all then that this case presents. As it stands, with all due
allowance for the arguments pressed with such vigor and
determination, the attack against the validity of the challenged
ordinance cannot be considered a success. Far from it. Respect
for constitutional law principles so uniformly held and so
uninterruptedly adhered to by this Court compels a reversal of the
appealed decision.
Wherefore, the judgment of the lower court is reversed and the
injunction issued lifted forthwith. With costs.
Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
Castro and Angeles, JJ., concur.
Concepcion, C.J. and Dizon, J., are on leave.

G.R. No. 118127 April 12, 2005
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the
City of Manila, HON. JOSELITO L. ATIENZA, in his capacity as
Vice-Mayor of the City of Manila and Presiding Officer of the
City Council of Manila, HON. ERNESTO A. NIEVA, HON.
GONZALO P. GONZALES, HON. AVELINO S. CAILIAN, HON.
ROBERTO C. OCAMPO, HON. ALBERTO DOMINGO, HON.
HONORIO U. LOPEZ, HON. FRANCISCO G. VARONA, JR.,
HON. ROMUALDO S. MARANAN, HON. NESTOR C. PONCE,
JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F.
CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL
M. ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO
C. ANG, HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ,
HON. CHIKA G. GO, HON. VICTORIANO A. MELENDEZ, HON.
ERNESTO V.P. MACEDA, JR., HON. ROLANDO P. NIETO,
HON. DANILO V. ROLEDA, HON. GERINO A. TOLENTINO, JR.,
HON. MA. PAZ E. HERRERA, HON. JOEY D. HIZON, HON.
FELIXBERTO D. ESPIRITU, HON. KARLO Q. BUTIONG, HON.
ROGELIO P. DELA PAZ, HON. BERNARDO D. RAGAZA, HON.
MA. CORAZON R. CABALLES, HON. CASIMIRO C. SISON,
HON. BIENVINIDO M. ABANTE, JR., HON. MA. LOURDES M.
ISIP, HON. ALEXANDER S. RICAFORT, HON. ERNESTO F.
RIVERA, HON. LEONARDO L. ANGAT, and HON. JOCELYN B.
DAWIS, in their capacity as councilors of the City of
Manila,Petitioner,
vs.
HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC,
Manila and MALATE TOURIST DEVELOPMENT
CORPORATION, Respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel good after
and what is immoral is what you feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act,
if performed by oneself, is less immoral than if performed
by someone else, who would be well-intentioned in his
dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Court's commitment to the protection of morals is secondary
to its fealty to the fundamental law of the land. It is foremost a
guardian of the Constitution but not the conscience of individuals.
And if it need be, the Court will not hesitate to "make the hammer
fall, and heavily" in the words of Justice Laurel, and uphold the
constitutional guarantees when faced with laws that, though not
lacking in zeal to promote morality, nevertheless fail to pass the
test of constitutionality.
The pivotal issue in this Petition1 under Rule 45 (then Rule 42) of
the Revised Rules on Civil Procedure seeking the reversal of
the Decision2 in Civil Case No. 93-66511 of the Regional Trial Court
(RTC) of Manila, Branch 18 (lower court),3 is the validity of
Ordinance No. 7783 (the Ordinance) of the City of Manila.4
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation
(MTDC) is a corporation engaged in the business of operating
hotels, motels, hostels and lodging houses.5 It built and opened
Victoria Court in Malate which was licensed as a motel although
duly accredited with the Department of Tourism as a hotel.6 On 28 1. Sauna Parlors
June 1993, MTDC filed a Petition for Declaratory Relief with Prayer
for a Writ of Preliminary Injunction and/or Temporary Restraining 2. Massage Parlors
Order7 (RTC Petition) with the lower court impleading as
defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim 3. Karaoke Bars
(Lim), Hon. Joselito L. Atienza, and the members of the City
Council of Manila (City Council). MTDC prayed that
4. Beerhouses
the Ordinance, insofar as it includes motels and inns as among its
prohibited establishments, be declared invalid and
unconstitutional.8 5. Night Clubs

Enacted by the City Council9 on 9 March 1993 and approved by 6. Day Clubs
petitioner City Mayor on 30 March 1993, the said Ordinance is
entitled– 7. Super Clubs

AN ORDINANCE PROHIBITING THE ESTABLISHMENT 8. Discotheques

OR OPERATION OF BUSINESSES PROVIDING
CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, 9. Cabarets
SERVICES AND FACILITIES IN THE ERMITA-MALATE
AREA, PRESCRIBING PENALTIES FOR VIOLATION 10. Dance Halls
THEREOF, AND FOR OTHER PURPOSES.10
11. Motels
The Ordinance is reproduced in full, hereunder:
12. Inns
SECTION 1. Any provision of existing laws and ordinances
to the contrary notwithstanding, no person, partnership, SEC. 2 The City Mayor, the City Treasurer or any person
corporation or entity shall, in the Ermita-Malate acting in behalf of the said officials are prohibited from
area bounded by Teodoro M. Kalaw Sr. Street in the North, issuing permits, temporary or otherwise, or from
Taft Avenue in the East, Vito Cruz Street in the South and granting licenses and accepting payments for the
Roxas Boulevard in the West, pursuant to P.D. 499 be operation of business enumerated in the preceding
allowed or authorized to contract and engage in, any section.
business providing certain forms of amusement,
entertainment, services and facilities where women
SEC. 3. Owners and/or operator of
are used as tools in entertainment and which tend to establishments engaged in, or devoted to, the businesses
disturb the community, annoy the inhabitants, and
enumerated in Section 1 hereof are hereby given three (3)
adversely affect the social and moral welfare of the
months from the date of approval of this ordinance
community, such as but not limited to:
within which to wind up business operations or to
transfer to any place outside of the Ermita-Malate area
or convert said businesses to other kinds of business
allowable within the area, such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with
well-defined activities for wholesome family
entertainment that cater to both local and foreign
clientele.
10. Theaters engaged in the exhibition, not only of
motion pictures but also of cultural shows, stage
and theatrical plays, art exhibitions, concerts and
the like.
11. Businesses allowable within the law and
medium intensity districts as provided for in the
zoning ordinances for Metropolitan Manila, except
new warehouse or open-storage depot, dock or
yard, motor repair shop, gasoline service station,
light industry with any machinery, or funeral
establishments.
SEC. 4. Any person violating any provisions of this
ordinance, shall upon conviction, be punished by
imprisonment of one (1) year or fine of FIVE
THOUSAND (P5,000.00) PESOS, or both, at the
discretion of the Court, PROVIDED, that in case of juridical
person, the President, the General Manager, or person-in-
charge of operation shall be liable thereof; PROVIDED
FURTHER, that in case of subsequent violation and
conviction, the premises of the erring establishment
shall be closed and padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session
today, March 9, 1993.
Approved by His Honor, the Mayor on March 30, 1993.
(Emphasis supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously
and improperly included in its enumeration of prohibited
establishments, motels and inns such as MTDC's Victoria Court
considering that these were not establishments for "amusement"
or "entertainment" and they were not "services or facilities for
entertainment," nor did they use women as "tools for
entertainment," and neither did they "disturb the community,"
"annoy the inhabitants" or "adversely affect the social and moral
welfare of the community."11
MTDC further advanced that the Ordinance was invalid and
unconstitutional for the following reasons: (1) The City Council has
no power to prohibit the operation of motels as Section 458 (a) 4
(iv)12 of the Local Government Code of 1991 (the Code) grants to
the City Council only the power to regulate the establishment,
operation and maintenance of hotels, motels, inns, pension
houses, lodging houses and other similar establishments; (2) The
Ordinance is void as it is violative of Presidential Decree (P.D.) No.
49913 which specifically declared portions of the Ermita-Malate area
as a commercial zone with certain restrictions; (3)
The Ordinance does not constitute a proper exercise of police
power as the compulsory closure of the motel business has no
reasonable relation to the legitimate municipal interests sought to
be protected; (4) The Ordinance constitutes an ex post facto law
by punishing the operation of Victoria Court which was a legitimate
business prior to its enactment; (5) The Ordinance violates
MTDC's constitutional rights in that: (a) it is confiscatory and
constitutes an invasion of plaintiff's property rights; (b) the City
Council has no power to find as a fact that a particular thing is a
nuisance per se nor does it have the power to extrajudicially
destroy it; and (6) The Ordinance constitutes a denial of equal
protection under the law as no reasonable basis exists for
prohibiting the operation of motels and inns, but not pension
houses, hotels, lodging houses or other similar establishments,
and for prohibiting said business in the Ermita-Malate area but not
outside of this area.14
In their Answer15 dated 23 July 1993, petitioners City of Manila and
Lim maintained that the City Council had the power to "prohibit
certain forms of entertainment in order to protect the social and
moral welfare of the community" as provided for in Section 458 (a)
4 (vii) of the Local Government Code,16 which reads, thus:
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this
Code and in the proper exercise of the corporate powers of
the city as provided for under Section 22 of this Code, and
shall:
....
(4) Regulate activities relative to the use of land, buildings
and structures within the city in order to promote the
general welfare and for said purpose shall:
....
(vii) Regulate the establishment, operation, and
maintenance of any entertainment or amusement
facilities, including theatrical performances,
circuses, billiard pools, public dancing schools,
public dance halls, sauna baths, massage parlors,
and other places for entertainment or amusement;
regulate such other events or activities for
amusement or entertainment, particularly those
which tend to disturb the community or annoy the
inhabitants, or require the suspension or
suppression of the same; or, prohibit certain forms
of amusement or entertainment in order to protect
the social and moral welfare of the community.
Citing Kwong Sing v. City of Manila,17 petitioners insisted that the
power of regulation spoken of in the above-quoted provision
included the power to control, to govern and to restrain places of
exhibition and amusement.18
Petitioners likewise asserted that the Ordinance was enacted by
the City Council of Manila to protect the social and moral welfare
of the community in conjunction with its police power as found in
Article III, Section 18(kk) of Republic Act No. 409,19 otherwise
known as the Revised Charter of the City of Manila (Revised
Charter of Manila)20 which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
. . .
 Section 18. Legislative powers. – The Municipal Board
shall have the following legislative powers:
. . .
(kk) To enact all ordinances it may deem necessary and
proper for the sanitation and safety, the furtherance of the
prosperity, and the promotion of the morality, peace, good
order, comfort, convenience, and general welfare of the city
and its inhabitants, and such others as may be necessary
to carry into effect and discharge the powers and duties
conferred by this chapter; and to fix penalties for the
violation of ordinances which shall not exceed two hundred
pesos fine or six months' imprisonment, or both such fine
and imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption
of validity; hence, private respondent had the burden to prove its
illegality or unconstitutionality.21
Petitioners also maintained that there was no inconsistency
between P.D. 499 and the Ordinance as the latter simply
disauthorized certain forms of businesses and allowed the Ermita-
Malate area to remain a commercial zone.22 The Ordinance, the
petitioners likewise claimed, cannot be assailed as ex post facto as
it was prospective in operation.23 The Ordinance also did not
infringe the equal protection clause and cannot be denounced as
class legislation as there existed substantial and real differences
between the Ermita-Malate area and other places in the City of
Manila.24
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr.
(Judge Laguio) issued an ex-parte temporary restraining order
against the enforcement of the Ordinance.25 And on 16 July 1993,
again in an intrepid gesture, he granted the writ of preliminary
injunction prayed for by MTDC.26
After trial, on 25 November 1994, Judge Laguio rendered the
assailed Decision, enjoining the petitioners from implementing
the Ordinance. The dispositive portion of said Decision reads:27
WHEREFORE, judgment is hereby rendered declaring
Ordinance No. 778[3], Series of 1993, of the City of Manila
null and void, and making permanent the writ of preliminary
injunction that had been issued by this Court against the
defendant. No costs.
SO ORDERED.28
Petitioners filed with the lower court a Notice of Appeal29 on 12
December 1994, manifesting that they are elevating the case to
this Court under then Rule 42 on pure questions of law.30
On 11 January 1995, petitioners filed the present Petition, alleging
that the following errors were committed by the lower court in its
ruling: (1) It erred in concluding that the subject ordinance is ultra
vires, or otherwise, unfair, unreasonable and oppressive exercise
of police power; (2) It erred in holding that the
questioned Ordinancecontravenes P.D. 49931 which allows
operators of all kinds of commercial establishments, except those
specified therein; and (3) It erred in declaring the Ordinance void
and unconstitutional.32
In the Petition and in its Memorandum,33 petitioners in essence
repeat the assertions they made before the lower court. They
contend that the assailed Ordinance was enacted in the exercise
of the inherent and plenary power of the State and the general
welfare clause exercised by local government units provided for in
Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and
conjunctively, Section 458 (a) 4 (vii) of the Code.34 They allege that
the Ordinance is a valid exercise of police power; it does not
contravene P.D. 499; and that it enjoys the presumption of
validity.35
In its Memorandum36 dated 27 May 1996, private respondent
maintains that the Ordinance is ultra vires and that it is void for
being repugnant to the general law. It reiterates that the
questioned Ordinance is not a valid exercise of police power; that
it is violative of due process, confiscatory and amounts to an
arbitrary interference with its lawful business; that it is violative of
the equal protection clause; and that it confers on petitioner City
Mayor or any officer unregulated discretion in the execution of
the Ordinance absent rules to guide and control his actions.
This is an opportune time to express the Court's deep sentiment
and tenderness for the Ermita-Malate area being its home for
several decades. A long-time resident, the Court witnessed the
area's many turn of events. It relished its glory days and endured
its days of infamy. Much as the Court harks back to the resplendent
era of the Old Manila and yearns to restore its lost grandeur, it
believes that the Ordinance is not the fitting means to that
end. The Court is of the opinion, and so holds, that the lower court
did not err in declaring the Ordinance, as it did, ultra vires and
therefore null and void.
The Ordinance is so replete with constitutional infirmities that
almost every sentence thereof violates a constitutional provision.
The prohibitions and sanctions therein transgress the cardinal
rights of persons enshrined by the Constitution. The Court is called
upon to shelter these rights from attempts at rendering them
worthless.
The tests of a valid ordinance are well established. A long line of
decisions has held that for an ordinance to be valid, it must not only
be within the corporate powers of the local government unit to
enact and must be passed according to the procedure prescribed
by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any
statute; (2) must not be unfair or oppressive; (3) must not be partial
or discriminatory; (4) must not prohibit but may regulate trade; (5)
must be general and consistent with public policy; and (6) must not
be unreasonable.37
Anent the first criterion, ordinances shall only be valid when they
are not contrary to the Constitution and to the
laws.38 The Ordinance must satisfy two requirements: it must pass
muster under the test of constitutionality and the test of consistency
with the prevailing laws. That ordinances should be constitutional
uphold the principle of the supremacy of the Constitution. The
requirement that the enactment must not violate existing law gives
stress to the precept that local government units are able to
legislate only by virtue of their derivative legislative power, a
delegation of legislative power from the national legislature. The
delegate cannot be superior to the principal or exercise powers
higher than those of the latter.39
This relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in
the Constitution strengthening the policy of local autonomy. The
national legislature is still the principal of the local government
units, which cannot defy its will or modify or violate it.40
The Ordinance was passed by the City Council in the exercise of
its police power, an enactment of the City Council acting as agent
of Congress. Local government units, as agencies of the State, are
endowed with police power in order to effectively accomplish and
carry out the declared objects of their creation.41 This delegated
police power is found in Section 16 of the Code, known as the
general welfare clause, viz:
SECTION 16. General Welfare.Every local government
unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the
promotion of the general welfare. Within their respective
territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance
the right of the people to a balanced ecology, encourage
and support the development of appropriate and self-
 reliant scientific and technological capabilities, improve
public morals, enhance economic prosperity and social
justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and
convenience of their inhabitants.
Local government units exercise police power through their
respective legislative bodies; in this case, the sangguniang
panlungsod or the city council. The Code empowers the legislative
bodies to "enact ordinances, approve resolutions and appropriate
funds for the general welfare of the province/city/municipality and
its inhabitants pursuant to Section 16 of the Code and in the proper
exercise of the corporate powers of the province/city/ municipality
provided under the Code.42 The inquiry in this Petition is concerned
with the validity of the exercise of such delegated power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-
reaching, is subordinate to the constitutional limitations thereon;
and is subject to the limitation that its exercise must be reasonable
and for the public good.43 In the case at bar, the enactment of
the Ordinance was an invalid exercise of delegated power as it is
unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the
protection of life, liberty, and property, and the promotion
of the general welfare are essential for the enjoyment by all
the people of the blessings of democracy.44
SEC. 14. The State recognizes the role of women in nation-
building, and shall ensure the fundamental equality before
the law of women and men.45
SEC. 1. No person shall be deprived of life, liberty or
property without due process of law, nor shall any person
be denied the equal protection of laws.46
Sec. 9. Private property shall not be taken for public use
without just compensation.47
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat
"(N)o person shall be deprived of life, liberty or property without
due process of law. . . ."48
There is no controlling and precise definition of due process. It
furnishes though a standard to which governmental action should
conform in order that deprivation of life, liberty or property, in each
appropriate case, be valid. This standard is aptly described as a
responsiveness to the supremacy of reason, obedience to the
dictates of justice,49and as such it is a limitation upon the exercise
of the police power.50
The purpose of the guaranty is to prevent governmental
encroachment against the life, liberty and property of individuals;
to secure the individual from the arbitrary exercise of the powers of
the government, unrestrained by the established principles of
private rights and distributive justice; to protect property from
confiscation by legislative enactments, from seizure, forfeiture, and
destruction without a trial and conviction by the ordinary mode of
judicial procedure; and to secure to all persons equal and impartial
justice and the benefit of the general law.51
The guaranty serves as a protection against arbitrary regulation,
and private corporations and partnerships are "persons" within the
scope of the guaranty insofar as their property is concerned.52
This clause has been interpreted as imposing two separate limits
on government, usually called "procedural due process" and
"substantive due process."
Procedural due process, as the phrase implies, refers to the
procedures that the government must follow before it deprives a
person of life, liberty, or property. Classic procedural due process
issues are concerned with what kind of notice and what form of
hearing the government must provide when it takes a particular
action.53
Substantive due process, as that phrase connotes, asks whether
the government has an adequate reason for taking away a
person's life, liberty, or property. In other words, substantive due
process looks to whether there is a sufficient justification for the
government's action.54 Case law in the United States (U.S.) tells us
that whether there is such a justification depends very much on the
level of scrutiny used.55 For example, if a law is in an area where
only rational basis review is applied, substantive due process is
met so long as the law is rationally related to a legitimate
government purpose. But if it is an area where strict scrutiny is
used, such as for protecting fundamental rights, then the
government will meet substantive due process only if it can prove
that the law is necessary to achieve a compelling government
purpose.56
The police power granted to local government units must always
be exercised with utmost observance of the rights of the people to
due process and equal protection of the law. Such power cannot
be exercised whimsically, arbitrarily or despotically57 as its exercise
is subject to a qualification, limitation or restriction demanded by
the respect and regard due to the prescription of the fundamental
law, particularly those forming part of the Bill of Rights. Individual
rights, it bears emphasis, may be adversely affected only to the
extent that may fairly be required by the legitimate demands of
public interest or public welfare.58 Due process requires the intrinsic
validity of the law in interfering with the rights of the person to his
life, liberty and property.59
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale
for the enactment of the Ordinance, and to free it from the
imputation of constitutional infirmity, not only must it appear that
the interests of the public generally, as distinguished from those of
a particular class, require an interference with private rights, but
the means adopted must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon
individuals.60It must be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights can
work. A reasonable relation must exist between the purposes of
the police measure and the means employed for its
accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property will
not be permitted to be arbitrarily invaded.61
Lacking a concurrence of these two requisites, the police measure
shall be struck down as an arbitrary intrusion into private rights62 a
violation of the due process clause.
The Ordinance was enacted to address and arrest the social ills
purportedly spawned by the establishments in the Ermita-Malate
area which are allegedly operated under the deceptive veneer of
legitimate, licensed and tax-paying nightclubs, bars, karaoke bars,
girlie houses, cocktail lounges, hotels and motels. Petitioners
insist that even the Court in the case of Ermita-Malate Hotel and
Motel Operators Association, Inc. v. City Mayor of Manila63 had
already taken judicial notice of the "alarming increase in the rate of
prostitution, adultery and fornication in Manila traceable in great
part to existence of motels, which provide a necessary atmosphere
for clandestine entry, presence and exit and thus become the ideal
haven for prostitutes and thrill-seekers."64
The object of the Ordinance was, accordingly, the promotion and
protection of the social and moral values of the community.
Granting for the sake of argument that the objectives of
the Ordinance are within the scope of the City Council's police
powers, the means employed for the accomplishment thereof were
unreasonable and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila
to make all reasonable regulations looking to the promotion of the
moral and social values of the community. However, the worthy
aim of fostering public morals and the eradication of the
community's social ills can be achieved through means less
restrictive of private rights; it can be attained by reasonable
restrictions rather than by an absolute prohibition. The closing
down and transfer of businesses or their conversion into
businesses "allowed" under the Ordinance have no reasonable
relation to the accomplishment of its purposes. Otherwise stated,
the prohibition of the enumerated establishments will not per
seprotect and promote the social and moral welfare of the
community; it will not in itself eradicate the alluded social ills of
prostitution, adultery, fornication nor will it arrest the spread of
sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with
houses of ill-repute and establishments of the like which the City
Council may lawfully prohibit,65 it is baseless and insupportable to
bring within that classification sauna parlors, massage parlors,
karaoke bars, night clubs, day clubs, super clubs, discotheques,
cabarets, dance halls, motels and inns. This is not warranted under
the accepted definitions of these terms. The enumerated
establishments are lawful pursuits which are not per se offensive
to the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs
and as venues to further the illegal prostitution is of no moment.
We lay stress on the acrid truth that sexual immorality, being a
human frailty, may take place in the most innocent of places that it
may even take place in the substitute establishments enumerated
under Section 3 of the Ordinance. If the flawed logic of
the Ordinance were to be followed, in the remote instance that an
immoral sexual act transpires in a church cloister or a court
chamber, we would behold the spectacle of the City of Manila
ordering the closure of the church or court concerned. Every
house, building, park, curb, street or even vehicles for that matter
will not be exempt from the prohibition. Simply because there are
no "pure" places where there are impure men. Indeed, even the
Scripture and the Tradition of Christians churches continually recall
the presence and universality of sin in man's history.66
The problem, it needs to be pointed out, is not the establishment,
which by its nature cannot be said to be injurious to the health or
comfort of the community and which in itself is amoral, but the
deplorable human activity that may occur within its premises. While
a motel may be used as a venue for immoral sexual activity, it
cannot for that reason alone be punished. It cannot be classified
as a house of ill-repute or as a nuisance per se on a mere
likelihood or a naked assumption. If that were so and if that were
allowed, then the Ermita-Malate area would not only be purged of
its supposed social ills, it would be extinguished of its soul as well
as every human activity, reprehensible or not, in its every nook and
cranny would be laid bare to the estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the
core issues of morality. Try as the Ordinance may to shape
morality, it should not foster the illusion that it can make a moral
man out of it because immorality is not a thing, a building or
establishment; it is in the hearts of men. The City Council instead
should regulate human conduct that occurs inside the
establishments, but not to the detriment of liberty and privacy which
are covenants, premiums and blessings of democracy.
While petitioners' earnestness at curbing clearly objectionable
social ills is commendable, they unwittingly punish even the
proprietors and operators of "wholesome," "innocent"
establishments. In the instant case, there is a clear invasion of
personal or property rights, personal in the case of those
individuals desirous of owning, operating and patronizing those
motels and property in terms of the investments made and the
salaries to be paid to those therein employed. If the City of Manila
so desires to put an end to prostitution, fornication and other social
ills, it can instead impose reasonable regulations such as daily
inspections of the establishments for any violation of the conditions
of their licenses or permits; it may exercise its authority to suspend
or revoke their licenses for these violations;67 and it may even
impose increased license fees. In other words, there are other
means to reasonably accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage
parlors, karaoke bars, beerhouses, night clubs, day clubs, super
clubs, discotheques, cabarets, dance halls, motels and inns in the
Ermita-Malate area. In Section 3 thereof, owners and/or operators
of the enumerated establishments are given three (3) months from
the date of approval of the Ordinance within which "to wind up
business operations or to transfer to any place outside the Ermita-
Malate area or convert said businesses to other kinds of business
allowable within the area." Further, it states in Section 4 that in
cases of subsequent violations of the provisions of the Ordinance,
the "premises of the erring establishment shall be closed and
padlocked permanently."
It is readily apparent that the means employed by
the Ordinance for the achievement of its purposes, the
governmental interference itself, infringes on the constitutional
guarantees of a person's fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice
Malcolm to include "the right to exist and the right to be free from
arbitrary restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen,
but is deemed to embrace the right of man to enjoy the facilities
with which he has been endowed by his Creator, subject only to
such restraint as are necessary for the common welfare."68 In
accordance with this case, the rights of the citizen to be free to use
his faculties in all lawful ways; to live and work where he will; to
earn his livelihood by any lawful calling; and to pursue any
avocation are all deemed embraced in the concept of liberty.69
The U.S. Supreme Court in the case of Roth v. Board of
Regents,70 sought to clarify the meaning of "liberty." It said:
While the Court has not attempted to define with exactness
the liberty. . . guaranteed [by the Fifth and Fourteenth
Amendments], the term denotes not merely freedom from
bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, establish a
home and bring up children, to worship God according to
the dictates of his own conscience, and generally to enjoy
those privileges long recognized…as essential to the
orderly pursuit of happiness by free men. In a Constitution
for a free people, there can be no doubt that the meaning
of "liberty" must be broad indeed.
In another case, it also confirmed that liberty protected by the due
process clause includes personal decisions relating to marriage,
procreation, contraception, family relationships, child rearing, and
education. In explaining the respect the Constitution demands for
the autonomy of the person in making these choices, the U.S.
Supreme Court explained:
These matters, involving the most intimate and personal
choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty
protected by the Fourteenth Amendment. At the heart of
liberty is the right to define one's own concept of existence,
of meaning, of universe, and of the mystery of human life.
Beliefs about these matters could not define the attributes
of personhood where they formed under compulsion of the
State.71
Persons desirous to own, operate and patronize the enumerated
establishments under Section 1 of the Ordinancemay seek
autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right
to autonomy to consummate their bonds in intimate sexual conduct
within the motel's premisesbe it stressed that their consensual
sexual behavior does not contravene any fundamental state policy
as contained in the Constitution.72 Adults have a right to choose to
forge such relationships with others in the confines of their own
private lives and still retain their dignity as free persons. The liberty
protected by the Constitution allows persons the right to make this
choice.73 Their right to liberty under the due process clause gives
them the full right to engage in their conduct without intervention of
the government, as long as they do not run afoul of the law. Liberty
should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from
unlawful government restraint; it must include privacy as well, if it
is to be a repository of freedom. The right to be let alone is the
beginning of all freedomit is the most comprehensive of rights
and the right most valued by civilized men.74
The concept of liberty compels respect for the individual whose
claim to privacy and interference demands respect. As the case
of Morfe v. Mutuc,75 borrowing the words of Laski, so very aptly
stated:
Man is one among many, obstinately refusing reduction to
unity. His separateness, his isolation, are indefeasible;
indeed, they are so fundamental that they are the basis on
which his civic obligations are built. He cannot abandon the
consequences of his isolation, which are, broadly
speaking, that his experience is private, and the will built
out of that experience personal to himself. If he surrenders
his will to others, he surrenders himself. If his will is set by
the will of others, he ceases to be a master of himself. I
cannot believe that a man no longer a master of himself is
in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized
in Morfe, the invasion of which should be justified by a compelling
state interest. Morfe accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully
deserving of constitutional protection. Governmental powers
should stop short of certain intrusions into the personal life of the
citizen.76
There is a great temptation to have an extended discussion on
these civil liberties but the Court chooses to exercise restraint and
restrict itself to the issues presented when it should. The previous
pronouncements of the Court are not to be interpreted as a license
for adults to engage in criminal conduct. The reprehensibility of
such conduct is not diminished. The Court only reaffirms and
guarantees their right to make this choice. Should they be
prosecuted for their illegal conduct, they should suffer the
consequences of the choice they have made. That, ultimately, is
their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it
substantially divests the respondent of the beneficial use of its
property.77 The Ordinance in Section 1 thereof forbids the running
of the enumerated businesses in the Ermita-Malate area and in
Section 3 instructs its owners/operators to wind up business
operations or to transfer outside the area or convert said
businesses into allowed businesses. An ordinance which
permanently restricts the use of property that it can not be used for
any reasonable purpose goes beyond regulation and must be
recognized as a taking of the property without just
compensation.78 It is intrusive and violative of the private property
rights of individuals.
The Constitution expressly provides in Article III, Section 9, that
"private property shall not be taken for public use without just
compensation." The provision is the most important protection of
property rights in the Constitution. This is a restriction on the
general power of the government to take property. The
constitutional provision is about ensuring that the government does
not confiscate the property of some to give it to others. In part too,
it is about loss spreading. If the government takes away a person's
property to benefit society, then society should pay. The principal
purpose of the guarantee is "to bar the Government from forcing
some people alone to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole.79
There are two different types of taking that can be identified. A
"possessory" taking occurs when the government confiscates or
physically occupies property. A "regulatory" taking occurs when the
government's regulation leaves no reasonable economically viable
use of the property.80
In the landmark case of Pennsylvania Coal v. Mahon,81 it was held
that a taking also could be found if government regulation of the
use of property went "too far." When regulation reaches a certain
magnitude, in most if not in all cases there must be an exercise of
eminent domain and compensation to support the act. While
property may be regulated to a certain extent, if regulation goes too
far it will be recognized as a taking.82
No formula or rule can be devised to answer the questions of what
is too far and when regulation becomes a taking. In Mahon, Justice
Holmes recognized that it was "a question of degree and therefore
cannot be disposed of by general propositions." On many other
occasions as well, the U.S. Supreme Court has said that the issue
of when regulation constitutes a taking is a matter of considering
the facts in each case. The Court asks whether justice and fairness
require that the economic loss caused by public action must be
compensated by the government and thus borne by the public as
a whole, or whether the loss should remain concentrated on those
few persons subject to the public action.83
What is crucial in judicial consideration of regulatory takings is that
government regulation is a taking if it leaves no reasonable
economically viable use of property in a manner that interferes with
reasonable expectations for use.84 A regulation that permanently
denies all economically beneficial or productive use of land is, from
the owner's point of view, equivalent to a "taking" unless principles
of nuisance or property law that existed when the owner acquired
the land make the use prohibitable.85 When the owner of real
property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, that is, to leave
his property economically idle, he has suffered a taking.86
A regulation which denies all economically beneficial or productive
use of land will require compensation under the takings clause.
Where a regulation places limitations on land that fall short of
eliminating all economically beneficial use, a taking nonetheless
may have occurred, depending on a complex of factors including
the regulation's economic effect on the landowner, the extent to
which the regulation interferes with reasonable investment-backed
expectations and the character of government action. These
inquiries are informed by the purpose of the takings clause which
is to prevent the government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be
borne by the public as a whole.87
A restriction on use of property may also constitute a "taking" if not
reasonably necessary to the effectuation of a substantial public
purpose or if it has an unduly harsh impact on the distinct
investment-backed expectations of the owner.88
The Ordinance gives the owners and operators of the "prohibited"
establishments three (3) months from its approval within which to
"wind up business operations or to transfer to any place outside of
the Ermita-Malate area or convert said businesses to other kinds
of business allowable within the area." The directive to "wind up
business operations" amounts to a closure of the establishment, a
permanent deprivation of property, and is practically
confiscatory. Unless the owner converts his establishment to
accommodate an "allowed" business, the structure which housed
the previous business will be left empty and gathering dust.
Suppose he transfers it to another area, he will likewise leave the
entire establishment idle. Consideration must be given to the
substantial amount of money invested to build the edifices which
the owner reasonably expects to be returned within a period of
time. It is apparent that the Ordinance leaves no reasonable
economically viable use of property in a manner that interferes with
reasonable expectations for use.
The second and third options to transfer to any place outside of
the Ermita-Malate area or to convert into allowed businessesare
confiscatory as well. The penalty of permanent closure in cases of
subsequent violations found in Section 4 of the Ordinance is also
equivalent to a "taking" of private property.
The second option instructs the owners to abandon their property
and build another one outside the Ermita-Malate area. In every
sense, it qualifies as a taking without just compensation with an
additional burden imposed on the owner to build another
establishment solely from his coffers. The proffered solution does
not put an end to the "problem," it merely relocates it. Not only is
this impractical, it is unreasonable, onerous and oppressive. The
conversion into allowed enterprises is just as ridiculous. How may
the respondent convert a motel into a restaurant or a coffee shop,
art gallery or music lounge without essentially destroying its
property? This is a taking of private property without due process
of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that
should be compensated by the government. The burden on the
owner to convert or transfer his business, otherwise it will be closed
permanently after a subsequent violation should be borne by the
public as this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a
zoning ordinance. A zoning ordinance, although a valid exercise of
police power, which limits a "wholesome" property to a use which
can not reasonably be made of it constitutes the taking of such
property without just compensation. Private property which is not
noxious nor intended for noxious purposes may not, by zoning, be
destroyed without compensation. Such principle finds no support
in the principles of justice as we know them. The police powers of
local government units which have always received broad and
liberal interpretation cannot be stretched to cover this particular
taking.
Distinction should be made between destruction from necessity
and eminent domain. It needs restating that the property taken in
the exercise of police power is destroyed because it is noxious or
intended for a noxious purpose while the property taken under the
power of eminent domain is intended for a public use or purpose
and is therefore "wholesome."89 If it be of public benefit that a
"wholesome" property remain unused or relegated to a particular
purpose, then certainly the public should bear the cost of
reasonable compensation for the condemnation of private property
for public use.90
Further, the Ordinance fails to set up any standard to guide or limit
the petitioners' actions. It in no way controls or guides the discretion
vested in them. It provides no definition of the establishments
covered by it and it fails to set forth the conditions when the
establishments come within its ambit of prohibition.
The Ordinance confers upon the mayor arbitrary and unrestricted
power to close down establishments. Ordinances such as this,
which make possible abuses in its execution, depending upon no
conditions or qualifications whatsoever other than the unregulated
arbitrary will of the city authorities as the touchstone by which its
validity is to be tested, are unreasonable and invalid.
The Ordinance should have established a rule by which its
impartial enforcement could be secured.91
Ordinances placing restrictions upon the lawful use of property
must, in order to be valid and constitutional, specify the rules and
conditions to be observed and conduct to avoid; and must not
admit of the exercise, or of an opportunity for the exercise, of
unbridled discretion by the law enforcers in carrying out its
provisions.92
Thus, in Coates v. City of Cincinnati,93 as cited in People v.
Nazario,94 the U.S. Supreme Court struck down an ordinance
that had made it illegal for "three or more persons to assemble on
any sidewalk and there conduct themselves in a manner annoying
to persons passing by." The ordinance was nullified as it imposed
no standard at all "because one may never know in advance what
'annoys some people but does not annoy others.' "
Similarly, the Ordinance does not specify the standards to
ascertain which establishments "tend to disturb the community,"
"annoy the inhabitants," and "adversely affect the social and moral
welfare of the community." The cited case supports the nullification
of the Ordinance for lack of comprehensible standards to guide the
law enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated
establishments without infringing the due process clause. These
lawful establishments may be regulated, but not prevented from
carrying on their business. This is a sweeping exercise of police
power that is a result of a lack of imagination on the part of the City
Council and which amounts to an interference into personal and
private rights which the Court will not countenance. In this regard,
we take a resolute stand to uphold the constitutional guarantee of
the right to liberty and property.
Worthy of note is an example derived from the U.S. of a reasonable
regulation which is a far cry from the ill-
considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a
comprehensive ordinance regulating "sexually oriented
businesses," which are defined to include adult arcades,
bookstores, video stores, cabarets, motels, and theaters as well as
escort agencies, nude model studio and sexual encounter centers.
Among other things, the ordinance required that such businesses
be licensed. A group of motel owners were among the three groups
of businesses that filed separate suits challenging the ordinance.
The motel owners asserted that the city violated the due process
clause by failing to produce adequate support for its supposition
that renting room for fewer than ten (10) hours resulted in
increased crime and other secondary effects. They likewise argued
than the ten (10)-hour limitation on the rental of motel rooms placed
an unconstitutional burden on the right to freedom of association.
Anent the first contention, the U.S. Supreme Court held that the
reasonableness of the legislative judgment combined with a study
which the city considered, was adequate to support the city's
determination that motels permitting room rentals for fewer than
ten (10 ) hours should be included within the licensing scheme. As
regards the second point, the Court held that limiting motel room
rentals to ten (10) hours will have no discernible effect on personal
bonds as those bonds that are formed from the use of a motel room
for fewer than ten (10) hours are not those that have played a
critical role in the culture and traditions of the nation by cultivating
and transmitting shared ideals and beliefs.
The ordinance challenged in the above-cited case merely
regulated the targeted businesses. It imposed reasonable
restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association,
Inc. v. City Mayor of Manila,96 it needs pointing out, is also different
from this case in that what was involved therein was a measure
which regulated the mode in which motels may conduct business
in order to put an end to practices which could encourage vice and
immorality. Necessarily, there was no valid objection on due
process or equal protection grounds as the ordinance did not
prohibit motels. The Ordinance in this case however is not a
regulatory measure but is an exercise of an assumed power to
prohibit.97
The foregoing premises show that the Ordinance is an
unwarranted and unlawful curtailment of property and personal
rights of citizens. For being unreasonable and an undue restraint
of trade, it cannot, even under the guise of exercising police power,
be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and
responsibilities imposed. Similar subjects, in other words, should
not be treated differently, so as to give undue favor to some and
unjustly discriminate against others.98 The guarantee means that no
person or class of persons shall be denied the same protection of
laws which is enjoyed by other persons or other classes in like
circumstances.99 The "equal protection of the laws is a pledge of the
protection of equal laws."100 It limits governmental discrimination.
The equal protection clause extends to artificial persons but only
insofar as their property is concerned.101
The Court has explained the scope of the equal protection clause
in this wise:
… What does it signify? To quote from J.M. Tuason & Co.
v. Land Tenure Administration: "The ideal situation is for
the law's benefits to be available to all, that none be placed
outside the sphere of its coverage. Only thus could chance
and favor be excluded and the affairs of men governed by
that serene and impartial uniformity, which is of the very
essence of the idea of law." There is recognition, however,
in the opinion that what in fact exists "cannot approximate
the ideal. Nor is the law susceptible to the reproach that it
does not take into account the realities of the situation. The
constitutional guarantee then is not to be given a meaning
that disregards what is, what does in fact exist. To assure
that the general welfare be promoted, which is the end of
law, a regulatory measure may cut into the rights to liberty
and property. Those adversely affected may under such
circumstances invoke the equal protection clause only if
they can show that the governmental act assailed, far from
being inspired by the attainment of the common weal was
prompted by the spirit of hostility, or at the very least,
discrimination that finds no support in reason."
Classification is thus not ruled out, it being sufficient to
quote from the Tuason decision anew "that the laws
operate equally and uniformly on all persons under similar
circumstances or that all persons must be treated in the
same manner, the conditions not being different, both in
the privileges conferred and the liabilities imposed.
Favoritism and undue preference cannot be allowed. For
the principle is that equal protection and security shall be
given to every person under circumstances which, if not
identical, are analogous. If law be looked upon in terms of
burden or charges, those that fall within a class should be
treated in the same fashion, whatever restrictions cast on
some in the group equally binding on the rest.102
Legislative bodies are allowed to classify the subjects of legislation.
If the classification is reasonable, the law may operate only on
some and not all of the people without violating the equal protection
clause.103 The classification must, as an indispensable requisite, not
be arbitrary. To be valid, it must conform to the following
requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.104
In the Court's view, there are no substantial distinctions between
motels, inns, pension houses, hotels, lodging houses or other
similar establishments. By definition, all are commercial
establishments providing lodging and usually meals and other
services for the public. No reason exists for prohibiting motels and
inns but not pension houses, hotels, lodging houses or other similar
establishments. The classification in the instant case is invalid as
similar subjects are not similarly treated, both as to rights conferred
and obligations imposed. It is arbitrary as it does not rest on
substantial distinctions bearing a just and fair relation to the
purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business
and operation of motels in the Ermita-Malate area but not outside
of this area. A noxious establishment does not become any less
noxious if located outside the area.
The standard "where women are used as tools for entertainment"
is also discriminatory as prostitutionone of the hinted ills
the Ordinance aims to banishis not a profession exclusive to
women. Both men and women have an equal propensity to engage
in prostitution. It is not any less grave a sin when men engage in it.
And why would the assumption that there is an ongoing immoral
activity apply only when women are employed and be inapposite
when men are in harness? This discrimination based on gender
violates equal protection as it is not substantially related to
important government objectives.105 Thus, the discrimination is
invalid.
Failing the test of constitutionality, the Ordinance likewise failed to
pass the test of consistency with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely
empowers local government units to regulate, and not prohibit, the
establishments enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the
establishment, operation, and maintenance of motels, hotels and
other similar establishments is found in Section 458 (a) 4 (iv), which
provides that:
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this
Code and in the proper exercise of the corporate powers of
the city as provided for under Section 22 of this Code, and
shall:
. . .
(4) Regulate activities relative to the use of land, buildings
and structures within the city in order to promote the
general welfare and for said purpose shall:
. . .
(iv) Regulate the establishment, operation and
maintenance of cafes, restaurants, beerhouses, hotels,
motels, inns, pension houses, lodging houses, and other
similar establishments, including tourist guides and
transports . . . .
While its power to regulate the establishment, operation and
maintenance of any entertainment or amusement facilities, and to
prohibit certain forms of amusement or entertainment is provided
under Section 458 (a) 4 (vii) of the Code, which reads as follows:
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare
 of the city and its inhabitants pursuant to Section 16 of this
Code and in the proper exercise of the corporate powers of
the city as provided for under Section 22 of this Code, and
shall:
. . .
(4) Regulate activities relative to the use of land, buildings
and structures within the city in order to promote the
general welfare and for said purpose shall:
. . .
(vii) Regulate the establishment, operation, and
maintenance of any entertainment or amusement
facilities, including theatrical performances,
circuses, billiard pools, public dancing schools,
public dance halls, sauna baths, massage parlors,
and other places for entertainment or amusement;
regulate such other events or activities for
amusement or entertainment, particularly those
which tend to disturb the community or annoy the
inhabitants, or require the suspension or
suppression of the same; or, prohibit certain forms
of amusement or entertainment in order to protect
the social and moral welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels,
motels, inns, pension houses, lodging houses, and other similar
establishments, the only power of the City Council to legislate
relative thereto is to regulate them to promote the general welfare.
The Code still withholds from cities the power to suppress and
prohibit altogether the establishment, operation and maintenance
of such establishments. It is well to recall the rulings of the Court
in Kwong Sing v. City of Manila106 that:
The word "regulate," as used in subsection (l), section 2444
of the Administrative Code, means and includes the power
to control, to govern, and to restrain; but "regulate" should
not be construed as synonymous with "suppress" or
"prohibit." Consequently, under the power to regulate
laundries, the municipal authorities could make proper
police regulations as to the mode in which the employment
or business shall be exercised.107
And in People v. Esguerra,108 wherein the Court nullified an
ordinance of the Municipality of Tacloban which prohibited the
selling, giving and dispensing of liquor ratiocinating that the
municipality is empowered only to regulate the same and not
prohibit. The Court therein declared that:
(A)s a general rule when a municipal corporation is
specifically given authority or power to regulate or to
license and regulate the liquor traffic, power to prohibit is
impliedly withheld.109
These doctrines still hold contrary to petitioners' assertion110 that
they were modified by the Code vesting upon City Councils
prohibitory powers.
Similarly, the City Council exercises regulatory powers over public
dancing schools, public dance halls, sauna baths, massage
parlors, and other places for entertainment or amusement as found
in the first clause of Section 458 (a) 4 (vii). Its powers to regulate,
suppress and suspend "such other events or activities for
amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants" and to "prohibit
certain forms of amusement or entertainment in order to protect the
social and moral welfare of the community" are stated in the
second and third clauses, respectively of the same Section. The
several powers of the City Council as provided in Section 458 (a)
4 (vii) of the Code, it is pertinent to emphasize, are separated by
semi-colons (;), the use of which indicates that the clauses in which
these powers are set forth are independent of each other albeit
closely related to justify being put together in a single enumeration
or paragraph.111 These powers, therefore, should not be confused,
commingled or consolidated as to create a conglomerated and
unified power of regulation, suppression and prohibition.112
The Congress unequivocably specified the establishments and
forms of amusement or entertainment subject to regulation among
which are beerhouses, hotels, motels, inns, pension houses,
lodging houses, and other similar establishments (Section 458 (a)
4 (iv)), public dancing schools, public dance halls, sauna baths,
massage parlors, and other places for entertainment or
amusement (Section 458 (a) 4 (vii)). This enumeration therefore
cannot be included as among "other events or activities for
amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants" or "certain forms
of amusement or entertainment" which the City Council may
suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are
expressly granted to it and those which are necessarily implied or
incidental to the exercise thereof. By reason of its limited powers
and the nature thereof, said powers are to be construed strictissimi
juris and any doubt or ambiguity arising out of the terms used in
granting said powers must be construed against the City
Council.113 Moreover, it is a general rule in statutory construction
that the express mention of one person, thing, or consequence is
tantamount to an express exclusion of all others. Expressio unius
est exclusio alterium. This maxim is based upon the rules of logic
and the natural workings of human mind. It is particularly applicable
in the construction of such statutes as create new rights or
remedies, impose penalties or punishments, or otherwise come
under the rule of strict construction.114
The argument that the City Council is empowered to enact
the Ordinance by virtue of the general welfare clause of the Code
and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is
likewise without merit. On the first point, the ruling of the Court
in People v. Esguerra,115 is instructive. It held that:
The powers conferred upon a municipal council in the
general welfare clause, or section 2238 of the Revised
Administrative Code, refers to matters not covered by the
other provisions of the same Code, and therefore it can not
be applied to intoxicating liquors, for the power to regulate
the selling, giving away and dispensing thereof is granted
specifically by section 2242 (g) to municipal councils. To
hold that, under the general power granted by section
2238, a municipal council may enact the ordinance in
question, notwithstanding the provision of section 2242 (g),
would be to make the latter superfluous and nugatory,
because the power to prohibit, includes the power to
regulate, the selling, giving away and dispensing of
intoxicating liquors.
On the second point, it suffices to say that the Code being a later
expression of the legislative will must necessarily prevail and
override the earlier law, the Revised Charter of Manila. Legis
posteriores priores contrarias abrogant, or later statute repeals
prior ones which are repugnant thereto. As between two laws on
the same subject matter, which are irreconcilably inconsistent, that
which is passed later prevails, since it is the latest expression of
legislative will.116 If there is an inconsistency or repugnance
between two statutes, both relating to the same subject matter,
which cannot be removed by any fair and reasonable method of
interpretation, it is the latest expression of the legislative will which
must prevail and override the earlier.117
Implied repeals are those which take place when a subsequently
enacted law contains provisions contrary to those of an existing law
but no provisions expressly repealing them. Such repeals have
been divided into two general classes: those which occur where an
act is so inconsistent or irreconcilable with an existing prior act that
only one of the two can remain in force and those which occur when
an act covers the whole subject of an earlier act and is intended to
be a substitute therefor. The validity of such a repeal is sustained
on the ground that the latest expression of the legislative will should
prevail.118
In addition, Section 534(f) of the Code states that "All general and
special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts
thereof which are inconsistent with any of the provisions of this
Code are hereby repealed or modified accordingly." Thus,
submitting to petitioners' interpretation that the Revised Charter of
Manila empowers the City Council to prohibit motels, that portion
of the Charter stating such must be considered repealed by the
Code as it is at variance with the latter's provisions granting the
City Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under
the general welfare clause authorizing the abatement of nuisances
without judicial proceedings. That tenet applies to a nuisance per
se, or one which affects the immediate safety of persons and
property and may be summarily abated under the undefined law of
necessity. It can not be said that motels are injurious to the rights
of property, health or comfort of the community. It is a legitimate
business. If it be a nuisance per accidens it may be so proven in a
hearing conducted for that purpose. A motel is not per se a
nuisance warranting its summary abatement without judicial
intervention.119
Notably, the City Council was conferred powers to prevent and
prohibit certain activities and establishments in another section of
the Code which is reproduced as follows:
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this
Code and in the proper exercise of the corporate powers of
the city as provided for under Section 22 of this Code, and
shall:
(1) Approve ordinances and pass resolutions necessary for
an efficient and effective city government, and in this
connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress and
impose appropriate penalties for habitual drunkenness in
public places, vagrancy, mendicancy, prostitution,
establishment and maintenance of houses of ill repute,
gambling and other prohibited games of
chance, fraudulent devices and ways to obtain money or
property, drug addiction, maintenance of drug dens, drug
pushing, juvenile delinquency, the printing, distribution or
exhibition of obscene or pornographic materials or
publications, and such other activities inimical to the
welfare and morals of the inhabitants of the city;
. . .
If it were the intention of Congress to confer upon the City Council
the power to prohibit the establishments enumerated in Section 1
of the Ordinance, it would have so declared in uncertain terms by
adding them to the list of the matters it may prohibit under the
above-quoted Section. The Ordinance now vainly attempts to lump
these establishments with houses of ill-repute and expand the City
Council's powers in the second and third clauses of Section 458
(a) 4 (vii) of the Code in an effort to overreach its prohibitory
powers. It is evident that these establishments may only be
regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the
establishments themselves. That these establishments are
recognized legitimate enterprises can be gleaned from another
Section of the Code. Section 131 under the Title on Local
Government Taxation expressly mentioned proprietors or
operators of massage clinics, sauna, Turkish and Swedish baths,
hotels, motels and lodging houses as among the "contractors"
defined in paragraph (h) thereof. The same Section also defined
"amusement" as a "pleasurable diversion and entertainment,"
"synonymous to relaxation, avocation, pastime or fun;" and
"amusement places" to include "theaters, cinemas, concert halls,
circuses and other places of amusement where one seeks
admission to entertain oneself by seeing or viewing the show or
performances." Thus, it can be inferred that the Code considers
these establishments as legitimate enterprises and activities. It is
well to recall the maxim reddendo singula singulis which means
that words in different parts of a statute must be referred to their
appropriate connection, giving to each in its place, its proper force
and effect, and, if possible, rendering none of them useless or
superfluous, even if strict grammatical construction demands
otherwise. Likewise, where words under consideration appear in
different sections or are widely dispersed throughout an act the
same principle applies.120
Not only does the Ordinance contravene the Code, it likewise runs
counter to the provisions of P.D. 499. As correctly argued by
MTDC, the statute had already converted the residential Ermita-
Malate area into a commercial area. The decree allowed the
establishment and operation of all kinds of commercial
establishments except warehouse or open storage depot, dump or
yard, motor repair shop, gasoline service station, light industry with
any machinery or funeral establishment. The rule is that for an
ordinance to be valid and to have force and effect, it must not only
be within the powers of the council to enact but the same must not
be in conflict with or repugnant to the general law.121As succinctly
illustrated in Solicitor General v. Metropolitan Manila Authority:122
The requirement that the enactment must not violate
existing law explains itself. Local political subdivisions are
able to legislate only by virtue of a valid delegation of
legislative power from the national legislature (except only
that the power to create their own sources of revenue and
to levy taxes is conferred by the Constitution itself). They
are mere agents vested with what is called the power of
subordinate legislation. As delegates of the Congress, the
local government units cannot contravene but must obey
at all times the will of their principal. In the case before us,
the enactment in question, which are merely local in origin
cannot prevail against the decree, which has the force and
effect of a statute.123
Petitioners contend that the Ordinance enjoys the presumption of
validity. While this may be the rule, it has already been held that
although the presumption is always in favor of the validity or
reasonableness of the ordinance, such presumption must
nevertheless be set aside when the invalidity or unreasonableness
appears on the face of the ordinance itself or is established by
proper evidence. The exercise of police power by the local
government is valid unless it contravenes the fundamental law of
the land, or an act of the legislature, or unless it is against public
policy or is unreasonable, oppressive, partial, discriminating or in
derogation of a common right.124
Conclusion
All considered, the Ordinance invades fundamental personal and
property rights and impairs personal privileges. It is constitutionally
infirm. The Ordinance contravenes statutes; it is discriminatory and
unreasonable in its operation; it is not sufficiently detailed and
explicit that abuses may attend the enforcement of its sanctions.
And not to be forgotten, the City Council under the Code had no
power to enact the Ordinance and is therefore ultra vires, null and
void.
Concededly, the challenged Ordinance was enacted with the best
of motives and shares the concern of the public for the cleansing
of the Ermita-Malate area of its social sins. Police power legislation
of such character deserves the full endorsement of the judiciary
we reiterate our support for it. But inspite of its virtuous aims, the
enactment of the Ordinance has no statutory or constitutional
authority to stand on. Local legislative bodies, in this case, the City
Council, cannot prohibit the operation of the enumerated
establishments under Section 1 thereof or order their transfer or
conversion without infringing the constitutional guarantees of due
process and equal protection of laws not even under the guise
of police power.

WHEREFORE, the Petition is hereby DENIED and the decision of

the Regional Trial Court declaring the Ordinancevoid is
AFFIRMED. Costs against petitioners.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 122846 January 20, 2009
WHITE LIGHT CORPORATION, TITANIUM CORPORATION
and STA. MESA TOURIST & DEVELOPMENT
CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR
ALFREDO S. LIM, Respondent.
DECISION
Tinga, J.:
With another city ordinance of Manila also principally involving the
tourist district as subject, the Court is confronted anew with the
incessant clash between government power and individual liberty
in tandem with the archetypal tension between law and morality.
In City of Manila v. Laguio, Jr., the Court affirmed the nullification
1 rate [sic], wash-up rate or other similarly concocted terms, are
of a city ordinance barring the operation of motels and inns, among
other establishments, within the Ermita-Malate area. The petition
at bar assails a similarly-motivated city ordinance that prohibits
those same establishments from offering short-time admission, as
well as pro-rated or "wash up" rates for such abbreviated stays.
Our earlier decision tested the city ordinance against our sacred
constitutional rights to liberty, due process and equal protection of
law. The same parameters apply to the present petition.
This Petition2 under Rule 45 of the Revised Rules on Civil
Procedure, which seeks the reversal of the Decision3 in C.A.-G.R.
S.P. No. 33316 of the Court of Appeals, challenges the validity of
Manila City Ordinance No. 7774 entitled, "An Ordinance Prohibiting
Short-Time Admission, Short-Time Admission Rates, and Wash-
Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses,
Pension Houses, and Similar Establishments in the City of Manila"
(the Ordinance).
I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim)
signed into law the Ordinance.4 The Ordinance is reproduced in
full, hereunder:
SECTION 1. Declaration of Policy. It is hereby the declared policy
of the City Government to protect the best interest, health and
welfare, and the morality of its constituents in general and the youth
in particular.
SEC. 2. Title. This ordinance shall be known as "An Ordinance"
prohibiting short time admission in hotels, motels, lodging houses,
pension houses and similar establishments in the City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission and
hereby prohibited in hotels, motels, inns, lodging houses, pension
houses and similar establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean
admittance and charging of room rate for less than twelve (12)
hours at any given time or the renting out of rooms more than twice
a day or any other term that may be concocted by owners or
managers of said establishments but would mean the same or
would bear the same meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall
violate any provision of this ordinance shall upon conviction thereof
be punished by a fine of Five Thousand (₱5,000.00) Pesos or
imprisonment for a period of not exceeding one (1) year or both
such fine and imprisonment at the discretion of the court; Provided,
That in case of [a] juridical person, the president, the manager, or
the persons in charge of the operation thereof shall be liable:
Provided, further, That in case of subsequent conviction for the
same offense, the business license of the guilty party shall
automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City ordinances
not consistent with or contrary to this measure or any portion hereof
are hereby deemed repealed.
SEC. 7. Effectivity. This ordinance shall take effect immediately
upon approval.
Enacted by the city Council of Manila at its regular session today,
November 10, 1992.
Approved by His Honor, the Mayor on December 3, 1992.
On December 15, 1992, the Malate Tourist and Development
Corporation (MTDC) filed a complaint for declaratory relief with
prayer for a writ of preliminary injunction and/or temporary
restraining order ( TRO)5 with the Regional Trial Court (RTC) of
Manila, Branch 9 impleading as defendant, herein respondent City
of Manila (the City) represented by Mayor Lim.6 MTDC prayed that
the Ordinance, insofar as it includes motels and inns as among its
prohibited establishments, be declared invalid and
unconstitutional. MTDC claimed that as owner and operator of the
Victoria Court in Malate, Manila it was authorized by Presidential
Decree (P.D.) No. 259 to admit customers on a short time basis as
well as to charge customers wash up rates for stays of only three
hours.
On December 21, 1992, petitioners White Light Corporation
(WLC), Titanium Corporation (TC) and Sta. Mesa Tourist and
Development Corporation (STDC) filed a motion to intervene and
to admit attached complaint-in-intervention7 on the ground that the
Ordinance directly affects their business interests as operators of
drive-in-hotels and motels in Manila.8 The three companies are
components of the Anito Group of Companies which owns and
operates several hotels and motels in Metro Manila.9
On December 23, 1992, the RTC granted the motion to
intervene.10 The RTC also notified the Solicitor General of the
proceedings pursuant to then Rule 64, Section 4 of the Rules of
Court. On the same date, MTDC moved to withdraw as plaintiff.11
On December 28, 1992, the RTC granted MTDC's motion to
withdraw.12 The RTC issued a TRO on January 14, 1993, directing
the City to cease and desist from enforcing the Ordinance.13 The
City filed an Answer dated January 22, 1993 alleging that the
Ordinance is a legitimate exercise of police power.14
On February 8, 1993, the RTC issued a writ of preliminary
injunction ordering the city to desist from the enforcement of the
Ordinance.15 A month later, on March 8, 1993, the Solicitor General
filed his Comment arguing that the Ordinance is constitutional.
During the pre-trial conference, the WLC, TC and STDC agreed to
submit the case for decision without trial as the case involved a
purely legal question.16 On October 20, 1993, the RTC rendered a
decision declaring the Ordinance null and void. The dispositive
portion of the decision reads:
WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774
of the City of Manila is hereby declared null and void.
Accordingly, the preliminary injunction heretofor issued is hereby
made permanent.
SO ORDERED.17
The RTC noted that the ordinance "strikes at the personal liberty
of the individual guaranteed and jealously guarded by the
Constitution."18 Reference was made to the provisions of the
Constitution encouraging private enterprises and the incentive to
needed investment, as well as the right to operate economic
enterprises. Finally, from the observation that the illicit
relationships the Ordinance sought to dissuade could nonetheless
be consummated by simply paying for a 12-hour stay, the RTC
likened the law to the ordinance annulled in Ynot v. Intermediate
Appellate Court,19 where the legitimate purpose of preventing
indiscriminate slaughter of carabaos was sought to be effected
through an inter-province ban on the transport of carabaos and
carabeef.
The City later filed a petition for review on certiorari with the
Supreme Court.20 The petition was docketed as G.R. No. 112471.
However in a resolution dated January 26, 1994, the Court treated
the petition as a petition for certiorari and referred the petition to
the Court of Appeals.21
Before the Court of Appeals, the City asserted that the Ordinance
is a valid exercise of police power pursuant to Section 458 (4)(iv)
of the Local Government Code which confers on cities, among
other local government units, the power:
[To] regulate the establishment, operation and maintenance of
cafes, restaurants, beerhouses, hotels, motels, inns, pension
houses, lodging houses and other similar establishments, including
tourist guides and transports.22
The Ordinance, it is argued, is also a valid exercise of the power of
the City under Article III, Section 18(kk) of the Revised Manila
Charter, thus:
"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 be necessary to carry into effect and discharge the
powers and duties conferred by this Chapter; and to fix penalties
for the violation of ordinances which shall not exceed two hundred
pesos fine or six months imprisonment, or both such fine and
imprisonment for a single offense.23
Petitioners argued that the Ordinance is unconstitutional and void
since it violates the right to privacy and the freedom of movement;
it is an invalid exercise of police power; and it is an unreasonable
and oppressive interference in their business.
The Court of Appeals reversed the decision of the RTC and
affirmed the constitutionality of the Ordinance.24 First, it held that
the Ordinance did not violate the right to privacy or the freedom of
movement, as it only penalizes the owners or operators of
establishments that admit individuals for short time stays. Second,
the virtually limitless reach of police power is only constrained by
having a lawful object obtained through a lawful method. The lawful
objective of the Ordinance is satisfied since it aims to curb immoral
activities. There is a lawful method since the establishments are
still allowed to operate. Third, the adverse effect on the
establishments is justified by the well-being of its constituents in
general. Finally, as held in Ermita-Malate Motel Operators
Association v. City Mayor of Manila, liberty is regulated by law.
TC, WLC and STDC come to this Court via petition for review on
certiorari.25 In their petition and Memorandum, petitioners in
essence repeat the assertions they made before the Court of
Appeals. They contend that the assailed Ordinance is an invalid
exercise of police power.
II.
We must address the threshold issue of petitioners’ standing.
Petitioners allege that as owners of establishments offering "wash-
up" rates, their business is being unlawfully interfered with by the
Ordinance. However, petitioners also allege that the equal
protection rights of their clients are also being interfered with. Thus,
the crux of the matter is whether or not these establishments have
the requisite standing to plead for protection of their patrons' equal
protection rights.
Standing or locus standi is the ability of a party to demonstrate to
the court sufficient connection to and harm from the law or action
challenged to support that party's participation in the case. More
importantly, the doctrine of standing is built on the principle of
separation of powers,26 sparing as it does unnecessary
interference or invalidation by the judicial branch of the actions
rendered by its co-equal branches of government.
The requirement of standing is a core component of the judicial
system derived directly from the Constitution.27 The constitutional
component of standing doctrine incorporates concepts which
concededly are not susceptible of precise definition.28 In this
jurisdiction, the extancy of "a direct and personal interest" presents
the most obvious cause, as well as the standard test for a
petitioner's standing.29 In a similar vein, the United States Supreme
Court reviewed and elaborated on the meaning of the three
constitutional standing requirements of injury, causation, and
redressability in Allen v. Wright.30
Nonetheless, the general rules on standing admit of several
exceptions such as the overbreadth doctrine, taxpayer suits, third
party standing and, especially in the Philippines, the doctrine of
transcendental importance.31
For this particular set of facts, the concept of third party standing
as an exception and the overbreadth doctrine are appropriate.
In Powers v. Ohio,32 the United States Supreme Court wrote that:
"We have recognized the right of litigants to bring actions on behalf
of third parties, provided three important criteria are satisfied: the
litigant must have suffered an ‘injury-in-fact,’ thus giving him or her
a "sufficiently concrete interest" in the outcome of the issue in
dispute; the litigant must have a close relation to the third party;
and there must exist some hindrance to the third party's ability to
protect his or her own interests."33 Herein, it is clear that the
business interests of the petitioners are likewise injured by the
Ordinance. They rely on the patronage of their customers for their
continued viability which appears to be threatened by the
enforcement of the Ordinance. The relative silence in constitutional
litigation of such special interest groups in our nation such as the
American Civil Liberties Union in the United States may also be
construed as a hindrance for customers to bring suit.34
American jurisprudence is replete with examples where parties-in-
interest were allowed standing to advocate or invoke the
fundamental due process or equal protection claims of other
persons or classes of persons injured by state action. In Griswold
v. Connecticut,35 the United States Supreme Court held that
physicians had standing to challenge a reproductive health statute
that would penalize them as accessories as well as to plead the
constitutional protections available to their patients. The Court held
that:
"The rights of husband and wife, pressed here, are likely to be
diluted or adversely affected unless those rights are considered in
a suit involving those who have this kind of confidential relation to
them."36
An even more analogous example may be found in Craig v.
Boren,37 wherein the United States Supreme Court held that a
licensed beverage vendor has standing to raise the equal
protection claim of a male customer challenging a statutory
scheme prohibiting the sale of beer to males under the age of 21
and to females under the age of 18. The United States High Court
explained that the vendors had standing "by acting as advocates
of the rights of third parties who seek access to their market or
function."38
Assuming arguendo that petitioners do not have a relationship with
their patrons for the former to assert the rights of the latter, the
overbreadth doctrine comes into play. In overbreadth analysis,
challengers to government action are in effect permitted to raise
the rights of third parties. Generally applied to statutes infringing
on the freedom of speech, the overbreadth doctrine applies when
a statute needlessly restrains even constitutionally guaranteed
rights.39 In this case, the petitioners claim that the Ordinance
makes a sweeping intrusion into the right to liberty of their clients.
We can see that based on the allegations in the petition, the
Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the
constitutional rights of their clients to patronize their establishments
for a "wash-rate" time frame.
III.
To students of jurisprudence, the facts of this case will recall to
mind not only the recent City of Manila ruling, but our 1967 decision
in Ermita-Malate Hotel and Motel Operations Association, Inc., v.
Hon. City Mayor of Manila.40Ermita-Malate concerned the City
ordinance requiring patrons to fill up a prescribed form stating
personal information such as name, gender, nationality, age,
address and occupation before they could be admitted to a motel,
hotel or lodging house. This earlier ordinance was precisely
enacted to minimize certain practices deemed harmful to public
morals. A purpose similar to the annulled ordinance in City of
Manila which sought a blanket ban on motels, inns and similar
establishments in the Ermita-Malate area. However, the
constitutionality of the ordinance in Ermita-Malate was sustained
by the Court.
The common thread that runs through those decisions and the
case at bar goes beyond the singularity of the localities covered
under the respective ordinances. All three ordinances were
enacted with a view of regulating public morals including particular
illicit activity in transient lodging establishments. This could be
described as the middle case, wherein there is no wholesale ban
on motels and hotels but the services offered by these
establishments have been severely restricted. At its core, this is
another case about the extent to which the State can intrude into
and regulate the lives of its citizens.
The test of a valid ordinance is well established. A long line of
decisions including City of Manila has held that for an ordinance to
be valid, it must not only be within the corporate powers of the local
government unit to enact and pass according to the procedure
prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any
statute; (2) must not be unfair or oppressive; (3) must not be partial
or discriminatory; (4) must not prohibit but may regulate trade; (5)
must be general and consistent with public policy; and (6) must not
be unreasonable.41
The Ordinance prohibits two specific and distinct business
practices, namely wash rate admissions and renting out a room
more than twice a day. The ban is evidently sought to be rooted in
the police power as conferred on local government units by the
Local Government Code through such implements as the general
welfare clause.
A.
Police power, while incapable of an exact definition, has been
purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough
room for an efficient and flexible response as the conditions
warrant.42 Police power is based upon the concept of necessity of
the State and its corresponding right to protect itself and its
people.43 Police power has been used as justification for numerous
and varied actions by the State. These range from the regulation
of dance halls,44 movie theaters,45 gas stations46 and
cockpits.47 The awesome scope of police power is best
demonstrated by the fact that in its hundred or so years of presence
in our nation’s legal system, its use has rarely been denied.
The apparent goal of the Ordinance is to minimize if not eliminate
the use of the covered establishments for illicit sex, prostitution,
drug use and alike. These goals, by themselves, are
unimpeachable and certainly fall within the ambit of the police
power of the State. Yet the desirability of these ends do not sanctify
any and all means for their achievement. Those means must align
with the Constitution, and our emerging sophisticated analysis of
its guarantees to the people. The Bill of Rights stands as a rebuke
to the seductive theory of Macchiavelli, and, sometimes even, the
political majorities animated by his cynicism.
Even as we design the precedents that establish the framework for
analysis of due process or equal protection questions, the courts
are naturally inhibited by a due deference to the co-equal branches
of government as they exercise their political functions. But when
we are compelled to nullify executive or legislative actions, yet
another form of caution emerges. If the Court were animated by
the same passing fancies or turbulent emotions that motivate many
political decisions, judicial integrity is compromised by any
perception that the judiciary is merely the third political branch of
government. We derive our respect and good standing in the
annals of history by acting as judicious and neutral arbiters of the
rule of law, and there is no surer way to that end than through the
development of rigorous and sophisticated legal standards through
which the courts analyze the most fundamental and far-reaching
constitutional questions of the day.
B.
The primary constitutional question that confronts us is one of due
process, as guaranteed under Section 1, Article III of the
Constitution. Due process evades a precise definition.48 The
purpose of the guaranty is to prevent arbitrary governmental
encroachment against the life, liberty and property of individuals.
The due process guaranty serves as a protection against arbitrary
regulation or seizure. Even corporations and partnerships are
protected by the guaranty insofar as their property is concerned.
The due process guaranty has traditionally been interpreted as
imposing two related but distinct restrictions on government,
"procedural due process" and "substantive due process."
Procedural due process refers to the procedures that the
government must follow before it deprives a person of life, liberty,
or property.49 Procedural due process concerns itself with
government action adhering to the established process when it
makes an intrusion into the private sphere. Examples range from
the form of notice given to the level of formality of a hearing.
If due process were confined solely to its procedural aspects, there
would arise absurd situation of arbitrary government action,
provided the proper formalities are followed. Substantive due
process completes the protection envisioned by the due process
clause. It inquires whether the government has sufficient
justification for depriving a person of life, liberty, or property.50
The question of substantive due process, moreso than most other
fields of law, has reflected dynamism in progressive legal thought
tied with the expanded acceptance of fundamental freedoms.
Police power, traditionally awesome as it may be, is now
confronted with a more rigorous level of analysis before it can be
upheld. The vitality though of constitutional due process has not
been predicated on the frequency with which it has been utilized to
achieve a liberal result for, after all, the libertarian ends should
sometimes yield to the prerogatives of the State. Instead, the due
process clause has acquired potency because of the sophisticated
methodology that has emerged to determine the proper metes and
bounds for its application.
C.
The general test of the validity of an ordinance on substantive due
process grounds is best tested when assessed with the evolved
footnote 4 test laid down by the U.S. Supreme Court in U.S. v.
Carolene Products.51 Footnote 4 of the Carolene Products case
acknowledged that the judiciary would defer to the legislature
unless there is a discrimination against a "discrete and insular"
minority or infringement of a "fundamental right."52 Consequently,
two standards of judicial review were established: strict scrutiny for
laws dealing with freedom of the mind or restricting the political
process, and the rational basis standard of review for economic
legislation.
A third standard, denominated as heightened or immediate
scrutiny, was later adopted by the U.S. Supreme Court for
evaluating classifications based on gender53 and
legitimacy. Immediate scrutiny was adopted by the U.S. Supreme
54
Court in Craig,55 after the Court declined to do so in Reed v.
Reed.56 While the test may have first been articulated in equal
protection analysis, it has in the United States since been applied
in all substantive due process cases as well.
We ourselves have often applied the rational basis test mainly in
analysis of equal protection challenges.57 Using the rational basis
examination, laws or ordinances are upheld if they rationally further
a legitimate governmental interest.58 Under intermediate review,
governmental interest is extensively examined and the availability
of less restrictive measures is considered.59 Applying strict
scrutiny, the focus is on the presence of compelling, rather than
substantial, governmental interest and on the absence of less
restrictive means for achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny
refers to the standard for determining the quality and the amount
of governmental interest brought to justify the regulation of
fundamental freedoms.60 Strict scrutiny is used today to test the
validity of laws dealing with the regulation of speech, gender, or
race as well as other fundamental rights as expansion from its
earlier applications to equal protection.61 The United States
Supreme Court has expanded the scope of strict scrutiny to protect
fundamental rights such as suffrage,62 judicial access63and
interstate travel.64
If we were to take the myopic view that an Ordinance should be
analyzed strictly as to its effect only on the petitioners at bar, then
it would seem that the only restraint imposed by the law which we
are capacitated to act upon is the injury to property sustained by
the petitioners, an injury that would warrant the application of the
most deferential standard – the rational basis test. Yet as earlier
stated, we recognize the capacity of the petitioners to invoke as
well the constitutional rights of their patrons – those persons who
would be deprived of availing short time access or wash-up rates
to the lodging establishments in question.
Viewed cynically, one might say that the infringed rights of these
customers were are trivial since they seem shorn of political
consequence. Concededly, these are not the sort of cherished
rights that, when proscribed, would impel the people to tear up their
cedulas. Still, the Bill of Rights does not shelter gravitas alone.
Indeed, it is those "trivial" yet fundamental freedoms – which the
people reflexively exercise any day without the impairing
awareness of their constitutional consequence – that accurately
reflect the degree of liberty enjoyed by the people. Liberty, as
integrally incorporated as a fundamental right in the Constitution,
is not a Ten Commandments-style enumeration of what may or
what may not be done; but rather an atmosphere of freedom where
the people do not feel labored under a Big Brother presence as
they interact with each other, their society and nature, in a manner
innately understood by them as inherent, without doing harm or
injury to others.
D.
The rights at stake herein fall within the same fundamental rights
to liberty which we upheld in City of Manila v. Hon. Laguio, Jr. We
expounded on that most primordial of rights, thus:
Liberty as guaranteed by the Constitution was defined by Justice
Malcolm to include "the right to exist and the right to be free from
arbitrary restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen,
but is deemed to embrace the right of man to enjoy the facilities
with which he has been endowed by his Creator, subject only to
such restraint as are necessary for the common welfare."[65] In
accordance with this case, the rights of the citizen to be free to use
his faculties in all lawful ways; to live and work where he will; to
earn his livelihood by any lawful calling; and to pursue any
avocation are all deemed embraced in the concept of liberty.[66]
The U.S. Supreme Court in the case of Roth v. Board of Regents,
sought to clarify the meaning of "liberty." It said:
While the Court has not attempted to define with exactness the
liberty . . . guaranteed [by the Fifth and Fourteenth Amendments],
the term denotes not merely freedom from bodily restraint but also
the right of the individual to contract, to engage in any of the
common occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God according
to the dictates of his own conscience, and generally to enjoy those
privileges long recognized . . . as essential to the orderly pursuit of
happiness by free men. In a Constitution for a free people, there
can be no doubt that the meaning of "liberty" must be broad
indeed.67 [Citations omitted]
It cannot be denied that the primary animus behind the ordinance
is the curtailment of sexual behavior. The City asserts before this
Court that the subject establishments "have gained notoriety as
venue of ‘prostitution, adultery and fornications’ in Manila since
they ‘provide the necessary atmosphere for clandestine entry,
presence and exit and thus became the ‘ideal haven for prostitutes
and thrill-seekers.’"68 Whether or not this depiction of a mise-en-
scene of vice is accurate, it cannot be denied that legitimate sexual
behavior among willing married or consenting single adults which
is constitutionally protected69 will be curtailed as well, as it was in
the City of Manila case. Our holding therein retains significance for
our purposes:
The concept of liberty compels respect for the individual whose
claim to privacy and interference demands respect. As the case
of Morfe v. Mutuc, borrowing the words of Laski, so very aptly
stated:
Man is one among many, obstinately refusing reduction to unity.
His separateness, his isolation, are indefeasible; indeed, they are
so fundamental that they are the basis on which his civic
obligations are built. He cannot abandon the consequences of his
isolation, which are, broadly speaking, that his experience is
private, and the will built out of that experience personal to himself.
If he surrenders his will to others, he surrenders himself. If his will
is set by the will of others, he ceases to be a master of himself. I
cannot believe that a man no longer a master of himself is in any
real sense free.
Indeed, the right to privacy as a constitutional right was recognized
in Morfe, the invasion of which should be justified by a compelling
state interest. Morfe accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully
deserving of constitutional protection. Governmental powers
should stop short of certain intrusions into the personal life of the
citizen.70
We cannot discount other legitimate activities which the Ordinance
would proscribe or impair. There are very legitimate uses for a
wash rate or renting the room out for more than twice a day. Entire
families are known to choose pass the time in a motel or hotel
whilst the power is momentarily out in their homes. In transit
passengers who wish to wash up and rest between trips have a
legitimate purpose for abbreviated stays in motels or hotels. Indeed
any person or groups of persons in need of comfortable private
spaces for a span of a few hours with purposes other than having
sex or using illegal drugs can legitimately look to staying in a motel
or hotel as a convenient alternative.
E.
That the Ordinance prevents the lawful uses of a wash rate
depriving patrons of a product and the petitioners of lucrative
business ties in with another constitutional requisite for the
legitimacy of the Ordinance as a police power measure. It must
appear that the interests of the public generally, as distinguished
from those of a particular class, require an interference with private
rights and the means must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive of
private rights.71 It must also be evident that no other alternative for
the accomplishment of the purpose less intrusive of private rights
can work. More importantly, a reasonable relation must exist
between the purposes of the measure and the means employed
for its accomplishment, for even under the guise of protecting the
public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded.72
Lacking a concurrence of these requisites, the police measure shall
be struck down as an arbitrary intrusion into private rights. As held
in Morfe v. Mutuc, the exercise of police power is subject to judicial
review when life, liberty or property is affected.73 However, this is
not in any way meant to take it away from the vastness of State
police power whose exercise enjoys the presumption of validity.74
Similar to the Comelec resolution requiring newspapers to donate
advertising space to candidates, this Ordinance is a blunt and
heavy instrument.75 The Ordinance makes no distinction between
places frequented by patrons engaged in illicit activities and
patrons engaged in legitimate actions. Thus it prevents legitimate
use of places where illicit activities are rare or even unheard of. A
plain reading of section 3 of the Ordinance shows it makes no
classification of places of lodging, thus deems them all susceptible
to illicit patronage and subject them without exception to the
unjustified prohibition.
The Court has professed its deep sentiment and tenderness of the
Ermita-Malate area, its longtime home,76 and it is skeptical of those
who wish to depict our capital city – the Pearl of the Orient – as a
modern-day Sodom or Gomorrah for the Third World set. Those
still steeped in Nick Joaquin-dreams of the grandeur of Old Manila
will have to accept that Manila like all evolving big cities, will have
its problems. Urban decay is a fact of mega cities such as Manila,
and vice is a common problem confronted by the modern
metropolis wherever in the world. The solution to such perceived
decay is not to prevent legitimate businesses from offering a
legitimate product. Rather, cities revive themselves by offering
incentives for new businesses to sprout up thus attracting the
dynamism of individuals that would bring a new grandeur to Manila.
The behavior which the Ordinance seeks to curtail is in fact already
prohibited and could in fact be diminished simply by applying
existing laws. Less intrusive measures such as curbing the
proliferation of prostitutes and drug dealers through active police
work would be more effective in easing the situation. So would the
strict enforcement of existing laws and regulations penalizing
prostitution and drug use. These measures would have minimal
intrusion on the businesses of the petitioners and other legitimate
merchants. Further, it is apparent that the Ordinance can easily be
circumvented by merely paying the whole day rate without any
hindrance to those engaged in illicit activities. Moreover, drug
dealers and prostitutes can in fact collect "wash rates" from their
clientele by charging their customers a portion of the rent for motel
rooms and even apartments.
IV.
We reiterate that individual rights may be adversely affected only
to the extent that may fairly be required by the legitimate demands
of public interest or public welfare. The State is a leviathan that
must be restrained from needlessly intruding into the lives of its
citizens. However well-intentioned the Ordinance may be, it is in
effect an arbitrary and whimsical intrusion into the rights of the
establishments as well as their patrons. The Ordinance needlessly
restrains the operation of the businesses of the petitioners as well
as restricting the rights of their patrons without sufficient
justification. The Ordinance rashly equates wash rates and renting
out a room more than twice a day with immorality without
accommodating innocuous intentions.
The promotion of public welfare and a sense of morality among
citizens deserves the full endorsement of the judiciary provided that
such measures do not trample rights this Court is sworn to
protect.77 The notion that the promotion of public morality is a conflict by employing more judicious, less drastic means to
function of the State is as old as Aristotle.78 The advancement of promote morality.
moral relativism as a school of philosophy does not de-legitimize
the role of morality in law, even if it may foster wider debate on WHEREFORE, the Petition is GRANTED. The Decision of the
which particular behavior to penalize. It is conceivable that a Court of Appeals is REVERSED, and the Decision of the Regional
society with relatively little shared morality among its citizens could Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No.
be functional so long as the pursuit of sharply variant moral 7774 is hereby declared UNCONSTITUTIONAL. No
perspectives yields an adequate accommodation of different pronouncement as to costs.
interests.79
SO ORDERED.
To be candid about it, the oft-quoted American maxim that "you
cannot legislate morality" is ultimately illegitimate as a matter of DANTE O. TINGA
law, since as explained by Calabresi, that phrase is more Associate Justice
accurately interpreted as meaning that efforts to legislate morality
will fail if they are widely at variance with public attitudes about right
and wrong.80 Our penal laws, for one, are founded on age-old
moral traditions, and as long as there are widely accepted
distinctions between right and wrong, they will remain so oriented.

Yet the continuing progression of the human story has seen not
only the acceptance of the right-wrong distinction, but also the
advent of fundamental liberties as the key to the enjoyment of life
to the fullest. Our democracy is distinguished from non-free
societies not with any more extensive elaboration on our part of
what is moral and immoral, but from our recognition that the
individual liberty to make the choices in our lives is innate, and
protected by the State. Independent and fair-minded judges
themselves are under a moral duty to uphold the Constitution as
the embodiment of the rule of law, by reason of their expression of
consent to do so when they take the oath of office, and because
they are entrusted by the people to uphold the law.81

Even as the implementation of moral norms remains an

indispensable complement to governance, that prerogative is
hardly absolute, especially in the face of the norms of due process
of liberty. And while the tension may often be left to the courts to
relieve, it is possible for the government to avoid the constitutional