pubcorp batch 2

7/24/2019 Pubcorp Batch 2

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G.R. No. L-42571-72 July 25, 1983VICENTE DE LA CRUZ, RENATO ALIPIO, JOE TORRE III, LEONCIO CORPUZ,TEREITA CALOT, ROALIA !ERNANDEZ, ELIZA"ET# VELACO, NANETTEVILLANUEVA, #ONORATO "UENAVENTURA, RU"EN DE CATRO, VICENTERO$A, RICARDO DA%IAN, DO%DINO RO%DINA, AN&ELINA O"LI&ACION,

CONRADO &RE&ORIO, TEODORO RE'E, L'DIA ATRACTIVO, NAPOLEON%ENDOZA, PER!ECTO &U%ATA', ANDRE A"AN&AN, ROITA DURAN,OCORRO "ERNARDEZ, ()* PEDRO &A"RIEL, petitioners,vs.T#E #ONORA"LE ED&ARDO L. PARA, %ATIA RA%IREZ (+ %u)/0/(l%(yo, %ARIO %ENDOZA (+ %u)/0/(l V/0-%(yo, ()* T#E %UNICIPALCOUNCIL O! "OCAUE, "ULACAN, respondents.Federico N. Alday for petitioners.Dakila F. Castro for respondents.!ERNANDO, C.J.:

The crucial question posed by this certiorari proceeding is whether or not a municipalcorporation, Bocaue, Bulacan, represented by respondents, 1can, prohibit the exerciseof a lawful trade, the operation of night clubs, and the pursuit of a lawful occupation,such clubs employing hostesses. It is contended that the ordinance assailed as invalidis tainted with nullity, the municipality being devoid of power to prohibit a lawfulbusiness, occupation or calling, petitioners at the same time alleging that their rights todue process and equal protection of the laws were violated as the licenses previouslygiven to them was in effect withdrawn without judicial hearing. 2

The assailed ordinance 3is worded as follows !"ection #.$ Title of Ordinance.$ This%rdinance shall be &nown and may be cited as the '(rohibition and )losure %rdinance*of Bocaue, Bulacan. "ection +. $ Definitions of Terms a- /ight )lub shall include

any place or establishment selling to the public food or drin&s where customers areallowed to dance. b- )abaret or 0ance 1all shall include any place or establishmentwhere dancing is permitted to the public and where professional hostesses or hospitalitygirls and professional dancers are employed. c- (rofessional hostesses or hospitalitygirls shall include any woman employed by any of the establishments herein defined toentertain guests and customers at their table or to dance with them. d- (rofessionaldancer shall include any woman who dances at any of the establishments hereindefined for a fee or remuneration paid directly or indirectly by the operator or by thepersons she dances with. e- %perator shall include the owner, manager, administratoror any person who operates and is responsible for the operation of any night club,cabaret or dance hall. "ection 2. $ Prohibition in the Issuance and ene!al of"icenses# Permits. $ Being the principal cause in the decadence of morality andbecause of their other adverse effects on this community as explained above, nooperator of night clubs, cabarets or dance halls shall henceforth be issuedpermits3licenses to operate within the jurisdiction of the municipality and nolicense3permit shall be issued to any professional hostess, hospitality girls andprofessional dancer for employment in any of the aforementioned establishments. Theprohibition in the issuance of licenses3permits to said persons and operators of saidestablishments shall include prohibition in the renewal thereof. "ection 4.$ e$ocation


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of Permits and "icenses.$ The licenses and permits issued to operators of night clubs,cabarets or dance halls which are now in operation including permits issued toprofessional hostesses, hospitality girls and professional dancers are hereby revo&edupon the expiration of the thirty5day period given them as provided in "ection 6 hereofand thenceforth, the operation of these establishments within the jurisdiction of the

municipality shall be illegal. "ection 7.$ Penalty in case of $iolation. $ 8iolation of anyof the provisions of this %rdinance shall be punishable by imprisonment not exceedingthree 2- months or a fine not exceeding (+99.99 or both at the discretion of the )ourt.If the offense is committed by a juridical entity, the person charged with themanagement and3or operation thereof shall be liable for the penalty provided herein."ection :. $ %eparability Clause.$ If, for any reason, any section or provision of this%rdinance is held unconstitutional or invalid, no other section or provision hereof shallbe affected thereby. "ection ;.$ epealin& Clause.$ , as amended,did not deprive Aunicipal )ouncils of their jurisdiction to regulate or prohibit night clubs.!7There was the admission of the following facts as having been established !l. Thatpetitioners 8icente de la )ru, et al. in )ivil )ase /o. 4;775A had been previouslyissued licenses by the Aunicipal Aayor of Bocaue5petitioner @ose Torres III, since #>76=petitioner 8icente de la )ru, since #>:9= petitioner Cenato :# andpetitioner Deoncio )orpu, since #>;+= +. That petitioners had invested large sums ofmoney in their businesses= 2. That the night clubs are well5lighted and have nopartitions, the tables being near each other= 4. That the petitioners owners3operators ofthese clubs do not allow the hospitality girls therein to engage in immoral acts and to go


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out with customers= 7. That these hospitality girls are made to go through periodicmedical chec&5ups and not one of them is suffering from any venereal disease and thatthose who fail to submit to a medical chec&5up or those who are found to be infectedwith venereal disease are not allowed to wor&= :. That the crime rate there is better thanin other parts of Bocaue or in other towns of Bulacan.! 8Then came on @anuary #7,

#>;: the decision upholding the constitutionality and validity of %rdinance /o. 64 anddismissing the cases. 1ence this petition for certiorari by way of appeal.In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Itsrationale is set forth in the opening paragraph thus !Those who lust cannot last. This inessence is why the Aunicipality of Bocaue, (rovince of Bulacan, stigmatied as it hasbeen by innuendos of sexual titillation and fearful of what the awesome future holds forit, had no alternative except to order thru its legislative machinery, and even at the ris&of partial economic dislocation, the closure of its night clubs and3or cabarets. This inessence is also why this )ourt, obedient to the mandates of good government, andcogniant of the categorical imperatives of the current legal and social revolution,hereby 'upholds* in the name of police power the validity and constitutionality of

%rdinance /o. 64, "eries of #>;7, of the Aunicipal )ouncil of Bocaue, Bulacan. Therestraining orders heretofore issued in these two cases are therefore hereby rifted,effective the first day of ?ebruary, #>;:, the purpose of the grace period being to enablethe petitioners herein to apply to the proper appellate tribunals for any contemplatedredress.! 9This )ourt is, however, unable to agree with such a conclusion and forreasons herein set forth, holds that reliance on the police power is insufficient to justifythe enactment of the assailed ordinance. It must be declared null and void.#. (olice power is granted to municipal corporations in general terms as follows()eneral po!er of council to enact ordinances and make re&ulations . 5 The municipalcouncil shall enact such ordinances and ma&e such regulations, not repugnant to law,as may be necessary to carry into effect and discharge the powers and duties conferred

upon it by law and such as shall seem necessary and proper to provide for the healthand safety, promote the prosperity, improve the morals, peace, good order, comfort, andconvenience of the municipality and the inhabitants thereof, and for the protection ofproperty therein.! 1It is practically a reproduction of the former "ection 2> of Aunicipal)ode. 11


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council which are enumerated by law. It authories such ordinances as shall seemnecessary and proper to provide for the health and safety, promote the prosperity,improve the morals, peace, good order, comfort, and convenience of the municipalityand the inhabitants thereof, and for the protection of property therein. It is a general rulethat ordinances passed by virtue of the implied power found in the general welfare

clause must be reasonable, consonant with the general powersand purposes of thecorporation, and not inconsistent with the laws or policy of the "tate.! 15 If night clubswere merely then regulated and not prohibited, certainly the assailed ordinance wouldpass the test of validity. In the two leading cases above set forth, this )ourt hadstressed reasonableness, consonant with the general powers and purposes ofmunicipal corporations, as well as consistency with the laws or policy of the "tate. Itcannot be said that such a sweeping exercise of a lawma&ing power by Bocaue couldqualify under the term reasonable. The objective of fostering public morals, a worthyand desirable end can be attained by a measure that does not encompass too wide afield. )ertainly the ordinance on its face is characteried by overbreadth. The purposesought to be achieved could have been attained by reasonable restrictions rather than

by an absolute prohibition. The admonition in "alaveria should be heeded !The@udiciary should not lightly set aside legislative action when there is not a clear invasionof personal or property rights under the guise of police regulation.! 1It is clear that inthe guise of a police regulation, there was in this instance a clear invasion of personal orproperty rights, personal in the case of those individuals desirous of patroniing thosenight clubs and property in terms of the investments made and salaries to be earned bythose therein employed.+. The decision now under review refers to Cepublic 26 as amended. 17It wasoriginally enacted on @une +9, #>72. It is entitled !


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prohibited. There is a wide gap between the exercise of a regulatory power !to providefor the health and safety, promote the prosperity, improve the morals, 22in the languageof the


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commitment to such an Ideal forbids such a bac&ward step. Degislation of that characteris deserving of the fullest sympathy from the judiciary.


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&.R. No. 92389 6 11, 1991#ON. JEJO%AR C. "INA' ()* %UNICIPALIT' O! %AATI,petitioners,vs.#ON. EU!E%IO DO%IN&O ()* CO%%IION ON AUDIT,respondents.e/omar C. 0inay for himself and for his co+petitioner.,anuel D. Tamase and afael C. ,ar1ue2 for respondents.PARA, J.:pThe only pivotal issue before Fs is whether or not Cesolution /o. :9, re5enacted under Cesolution /o. +42, of the Aunicipality of Aa&ati is a validexercise of police power under the general welfare clause.The pertinent facts are%n "eptember +;, #>66, petitioner Aunicipality, through its )ouncil,approved Cesolution /o. :9 which reads

< CH"%DFTI%/ T% )%/?ICA


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disbursement of finds for the implementation thereof. Collo,


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/o. ##7>. (etitioner, through its Aayor, was constrained to file this specialcivil action of certiorari praying that )%< 0ecision /o. ##7> be set aside asnull and void.The police power is a governmental function, an inherent attribute ofsovereignty, which was born with civilied government. It is founded largelyon the maxims, !"ic utere tuo et ahenum non laedas and !"alus populi estsuprema lex Its fundamental purpose is securing the general welfare,comfort and convenience of the people.(olice power is inherent in the state but not in municipal corporationsBalacuit v. )?I of #, #4>,#;; and +96, B( 22;-.


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government unit shall exercise the powers expressly granted, thosenecessarily implied therefrom, as well as powers necessary and proper forgovernance such as to promote health and safety, enhance prosperity,improve morals, and maintain peace and order in the local governmentunit, and preserve the comfort and convenience of the inhabitants therein.!(olice power is the power to prescribe regulations to promote the health,morals, peace, education, good order or safety and general welfare of thepeople. It is the most essential, insistent, and illimitable of powers. In asense it is the greatest and most powerful attribute of the government. It iselastic and must be responsive to various social conditions. "angalang, etal. vs. I:- 1owever, it is notconfined within narrow circumstances of precedents resting on pastconditions= it must follow the legal progress of a democratic way of life."angalang, et al. vs. I66, supra, and the alleged public safety, generalwelfare. etc. of the inhabitants of Aa&ati.! Collo,


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to bring out of them the greatest welfare of the people by promoting publicconvenience or general prosperity, and to everything worthwhile for thepreservation of comfort of the inhabitants of the corporation :+ ).@.". "ec.#+6-. Thus, it is deemed inadvisable to attempt to frame any definitionwhich shall absolutely indicate the limits of police power.)%,


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(CHAI"H" )%/"I0HCH0, and with the afore5mentioned caveat, thispetition is hereby GC;

(etitioners caption their petition as one for Certiorari#InjunctionEith (reliminary Aandatory Injunction,with (rayer for TemporaryCestraining %rder and pray that this )ourt #- declare asunconstitutional a- %rdinance /o. #75>+, dated #7 0ecember#>>+, of the %an&&unian& Panlun&sodof (uerto (rincesa= b-%ffice %rder /o. +2, "eries of #>>2, dated ++ @anuary #>>2,issued by


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PROVIDING EXEMPTIONS, PENALTIES AND FOR OTHER

PURPOSES THEREOF, the full text of which reads as follows:

Section 1. Title of the Ordinance. - This Ordinance is entitled: AN

ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH

AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM

JANUARY 1, 1993 TO JANUARY 1, 1998 AND PROVIDING

EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES

THEREOF.

Section 2. Purpose, Scope and Coverage. - To effectively free our City

Sea Waters from Cyanide and other Obnoxious substance, and shall

cover all persons and/or entities operating within and outside the City of

Puerto Princesa who is are [sic] directly or indirectly in the business or

shipment of live fish and lobster outside the City.

Section 3. Definition of terms. - For purpose of this Ordinance the

following are hereby defined:

A. SEA BASS - A kind of fish under the family of Centropomidae,

better known as APAHAP;

B. CATFISH - A kind of fish under the family of Plotosidae, better

known as HITO-HITO;

C. MUDFISH - A kind of fish under the family of Orphicaphalisae

better known as DALAG

D. ALL LIVE FISH - All alive, breathing not necessarily moving of all

specie[s] use for food and for aquarium purposes.

E. LIVE LOBSTER - Several relatively, large marine crustaceans of the

genus Homarus that are alive and breathing not necessarily moving.

Section 4. It shall be unlawful [for] any person or any business

enterprise or company to ship out from Puerto Princesa City to any point

of destination either via aircraft or seacraft of any live fish and lobsterexcept SEA BASS, CATFISH, MUDFISH, AND MILKFISH FRIES.

Section 5. Penalty Clause. - Any person/s and or business entity

violating this Ordinance shall be penalized with a fine of not more than

P5,000.00 or imprisonment of not more than twelve (12) months,

cancellation of their permit to do business in the City of Puerto Princesa


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or all of the herein stated penalties, upon the discretion of the court.

Section 6. If the owner and/or operator of the establishment found

vilating the provisions of this ordinance is a corporation or a partnership,

the penalty prescribed in Section 5 hereof shall be imposed upon its

president and/or General Manager or Managing Partner and/or Manager,

as the case maybe [sic].

Section 7. Any existing ordinance or any provision of any ordinance

inconsistent to [sic] this ordinance is deemed repealed.

Section 8. This Ordinance shall take effect on January 1, 1993.

SO ORDAINED.

xxx2. To implement said city ordinance, then Acting City Mayor Amado L.

Lucero issued Office Order No. 23, Series of 1993 dated January 22,

1993 which reads as follows:

In the interest of public service and for purposes of City Ordinance No.

PD426-14-74, otherwise known as AN ORDINANCE REQUIRING

ANY PERSON ENGAGED OR INTENDING TO ENGAGE IN ANY

BUSINESS, TRADE, OCCUPATION, CALLING OR PROFESSION

OR HAVING IN HIS POSSESSION ANY OF THE ARTICLES FOR

WHICH A PERMIT IS REQUIRED TO BE HAD, TO OBTAIN FIRST

A MAYORS PERMIT and City Ordinance No. 15-92, AN

ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH

AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM

JANUARY 1, 1993 TO JANUARY 1, 1998, you are hereby authorized

and directed to check or conduct necessary inspections on cargoes

containing live fish and lobster being shipped out from the Puerto

Princesa Airport, Puerto Princesa Wharf or at any port within the

jurisdiction of the City to any point of destinations [sic] either via

aircraft or seacraft.

The purpose of the inspection is to ascertain whether the shipper

possessed the required Mayors Permit issued by this Office and the

shipment is covered by invoice or clearance issued by the local office of

the Bureau of Fisheries and Aquatic Resources and as to compliance


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with all other existing rules and regulations on the matter.

Any cargo containing live fish and lobster without the required

documents as stated herein must be held for proper disposition.

In the pursuit of this Order, you are hereby authorized to coordinate with

the PAL Manager, the PPA Manager, the local PNP Station and other

offices concerned for the needed support and cooperation. Further, that

the usual courtesy and diplomacy must be observed at all times in the

conduct of the inspection.

Please be guided accordingly.

xxx3. On February 19, 1993, the Sangguniang Panlalawigan, Provincial

Government of Palawan enacted Resolution No. 33 entitled: A

RESOLUTION PROHIBITING THE CATCHING, GATHERING,

POSSESSING, BUYING, SELLING AND SHIPMENT OF LIVE

MARINE CORAL DWELLING AQUATIC ORGANISMS, TO WIT:

FAMILY: SCARIDAE (MAMENG), EPINE PHELUS FASCIATUS

(SUNO). CROMILEPTES ALTIVELIS (PANTHER OR SENORITA),

LOBSTER BELOW 200 GRAMS AND SPAWNING, TRADACNA

GIGAS (TAKLOBO), PINCTADA MARGARITEFERA (MOTHER

PEARL, OYSTERS, GIANT CLAMS AND OTHER SPECIES),

PENAEUS MONODON (TIGER PRAWN-BREEDER SIZE OR

MOTHER), EPINEPHELUS SUILLUS (LOBA OR GREEN

GROUPER) AND FAMILY: BALISTIDAE (TROPICAL AQUARIUM

FISHES) FOR A PERIOD FIVE (5) YEARS IN AND COMING FROM

PALAWAN WATERS, the full text of which reads as follows:

WHEREAS, scientific and factual researches [sic] and studies disclose

that only five (5) percent of the corals of our province remain to be in

excellent condition as [a] habitat of marine coral dwelling aquatic

organisms;

WHEREAS, it cannot be gainsaid that the destruction and devastation of

the corals of our province were principally due to illegal fishing

activities like dynamite fishing, sodium cyanide fishing, use of other

obnoxious substances and other related activities;


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WHEREAS, there is an imperative and urgent need to protect and

preserve the existence of the remaining excellent corals and allow the

devastated ones to reinvigorate and regenerate themselves into vitality

within the span of five (5) years;

WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of the [sic] R.A. 7160

otherwise known as the Local Government Code of 1991 empowers the

Sangguniang Panlalawigan to protect the environment and impose

appropriate penalties [upon] acts which endanger the environment such

as dynamite fishing and other forms of destructive fishing, among

others.

NOW, THEREFORE, on motion by Kagawad Nelson P. Peneyra and

upon unanimous decision of all the members present;

Be it resolved as it is hereby resolved, to approve Resolution No. 33,

Series of 1993 of the Sangguniang Panlalawigan and to enact Ordinance

No. 2 for the purpose, to wit:

ORDINANCE NO. 2

Series of 1993

BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN IN

SESSION ASSEMBLED:

Section 1. TITLE - This Ordinance shall be known as an Ordinance

Prohibiting the catching, gathering, possessing, buying, selling and

shipment of live marine coral dwelling aquatic organisms, to wit: 1.

Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno), 3.

Cromileptes altivelis (Panther or Senorita), lobster below 200 grams and

spawning), 4. Tridacna Gigas (Taklobo), 5. Pinctada Margaretefera

(Mother Pearl, Oysters, Giant Clams and other species), 6. Penaeus

Monodon (Tiger Prawn-breeder size or mother), 7. Epinephelus Suillus

(Loba or Green Grouper) and 8. Family: Balistidae (Topical AquariumFishes) for a period of five (5) years in and coming from Palawan

Waters.

Section II. PRELIMINARY CONSIDERATIONS

1. Sec. 2-A (Rep. Act 7160). It is hereby declared, the policy of the state

that the territorial and political subdivisions of the State shall enjoy


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genuine and meaningful local autonomy to enable them to attain their

fullest development as self reliant communities and make them more

effective partners in the attainment of national goals. Toward this end,

the State shall provide for [a] more responsive and accountable local

government structure instituted through a system of decentralization

whereby local government units shall be given more powers, authority,

responsibilities and resources.

2. Sec. 5-A (R.A. 7160). Any provision on a power of [a] local

Government Unit shall be liberaly interpreted in its favor, and in case of

doubt, any question thereon shall be resolved in favor of devolution of

powers and of the lower government units. Any fair and reasonable

doubts as to the existence of the power shall be interpreted in favor of

the Local Government Unit concerned.

3. Sec. 5-C (R.A. 7160). The general welfare provisions in this Code

shall be liberally interpreted to give more powers to local government

units in accelerating economic development and upgrading the quality of

life for the people in the community.

4. Sec. 16 (R.A. 7160). General Welfare. - Every local government unit

shall exercise the powers expressly granted, those necessarily implied

therefrom, as well as powers necessary, appropriate, or incidental for its

efficient and effective governance; and those which are essential to the

promotion of the general welfare.

Section III. DECLARATION OF POLICY. - It is hereby declared to be

the policy of the Province of Palawan to protect and conserve the marine

resources of Palawan not only for the greatest good of the majority of

the present generation but with [the] proper perspective and

consideration of [sic] their prosperity, and to attain this end, the

Sangguniang Panlalawigan henceforth declares that is [sic] shall beunlawful for any person or any business entity to engage in catching,

gathering, possessing, buying, selling and shipment of live marine coral

dwelling aquatic organisms as enumerated in Section 1 hereof in and

coming out of Palawan Waters for a period of five (5) years;

Section IV. PENALTY CLAUSE. - Any person and/or business entity


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violating this Ordinance shall be penalized with a fine of not more than

Five Thousand Pesos (P5,000.00), Philippine Currency, and/or

imprisonment of six (6) months to twelve (12) months and confiscation

and forfeiture of paraphernalias [sic] and equipment in favor of the

government at the discretion of the Court;

Section V. SEPARABILITY CLAUSE. - If for any reason, a Section or

provision of this Ordinance shall be held as unconditional [sic] or

invalid, it shall not affect the other provisions hereof.

Section VI. REPEALING CLAUSE. - Any existing Ordinance or a

provision of any ordinance inconsistent herewith is deemed modified,

amended or repealed.

Section VII. EFFECTIVITY. - This Ordinance shall take effect ten (10)

days after its publication.

SO ORDAINED.

xxx4. The respondents implemented the said ordinances, Annexes A and C

hereof thereby depriving all the fishermen of the whole province of

Palawan and the City of Puerto Princesa of their only means of

livelihood and the petitioners Airline Shippers Association of Palawan

and other marine merchants from performing their lawful occupation

and trade;

5. Petitioners Alfredo Tano, Baldomero Tano, Teocenes Midello, Angel

de Mesa, Eulogio Tremocha, and Felipe Ongonion, Jr. were even

charged criminally under criminal case no. 93-05-C in the 1st Municipal

Circuit Trial Court of Cuyo-Agutaya-Magsaysay, an original carbon

copy of the criminal complaint dated April 12, 1993 is hereto attached as

Annex D; while xerox copies are attached as Annex D to the copies of

the petition;

6. Petitioners Robert Lim and Virginia Lim, on the other hand, were

charged by the respondent PNP with the respondent City Prosecutor of

Puerto Princesa City, a xerox copy of the complaint is hereto attached as

Annex E;

Eithout see&ing redress from the concerned local government


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units, prosecutors office and courts, petitioners directly invo&edour original jurisdiction by filing this petition on 4 @une #>>2. Insum, petitioners contend that?irst, the %rdinances deprived them of due process of law, their

livelihood, and unduly restricted them from the practice of theirtrade, in violation of "ection +, 2 we required respondents tocomment on the petition, and furnished the %ffice of the "olicitorGeneral with a copy thereof.In their comment filed on #2 >2, public respondents

Governor "ocrates and Aembers of the "angguniang(anlalawigan of (alawan defended the validity of %rdinance/o.+, "eries of #>>2, as a valid exercise of the (rovincialGovernments power under the general welfare clause "ection #:of the Docal Government )ode of #>># 'hereafter, DG)*-, and itsspecific power to protect the environment and impose appropriate


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penalties for acts which endanger the environment, such asdynamite fishing and other forms of destructive fishing under"ection 44; a- #- vi-, "ection 476 a- #- vi-, and "ection 4:6a- #- vi-, of the DG). They claimed that in the exercise of such

powers, the (rovince of (alawan had the right and responsibiltyto insure that the remaining coral reefs, where fish dwells 'sic*,within its territory remain healthy for the future generation. The%rdinance, they further asserted, covered only live marine coraldwelling aquatic organisms which were enumerated in theordinance and excluded other &inds of live marine aquaticorganisms not dwelling in coral reefs= besides the prohibition wasfor only five 7- years to protect and preserve the pristine coral

and allow those damaged to regenerate.2 petitioners filed an Frgent (lea for theImmediate Issuance of a Temporary Cestraining %rder claimingthat despite the pendency of this case, Branch 79 of the CegionalTrial )ourt of (alawan was bent on proceeding with )riminal)ase /o. ##++2 against petitioners 0anilo Tano,


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)ase /o. ##++2.%n #+ @uly #>>4, we excused the %ffice of the "olicitor Generalfrom filing a comment, considering that as claimed by said officein its Aanifestation of +6 @une #>>4, respondents were already

represented by counsel.The rest of the respondents did not file any comment on thepetition.In the resolution of #7 "eptember #>>4, we resolved to considerthe comment on the petition as the + of (uerto (rincesa )ity and%rdinance /o. +, "eries of #>>2, of the (rovince of (alawanbefore the %ffice of the )ity (rosecutor of (uerto (rincesa.'if L


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support?ootnotes*'4*'endif*


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manner authoried by law.'if Lsupport?ootnotes*';*'endif*


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appeals, and should also serve as a general determinant of the

appropriate forum for petitions for the extraordinary writs. A becoming

regard for that judicial hierarchy most certainly indicates that petitions

for the issuance of extraordinary writs against first level (inferior) courts

should be filed with the Regional Trial Court, and those against the

latter, with the Court of Appeals. A direct invocation of the Supreme

Courts original jurisdiction to issue these writs should be allowed only

when there are special and important reasons therefor, clearly and

specifically set out in the petition. This is established policy. It is a

policy necessary to prevent inordinate demands upon the Courts time

and attention which are better devoted to those matters within its

exclusive jurisdiction, and to prevent further over-crowding of the

Courts docket.

The Court feels the need to reaffirm that policy at this time, and to

enjoin strict adherence thereto in the light of what it perceives to be a

growing tendency on the part of litigants and lawyers to have their

applications for the so-called extraordinary writs, and sometimes even

their appeals, passed upon and adjudicated directly and immediately by

the highest tribunal of the land.

In "antiago $. 8asque,'if Lsupport?ootnotes*'#4*'endif*this )ourt forcefullyexpressed that the propensity of litigants and lawyers to disregardthe hierarchy of courts must be put to a halt, not only because ofthe imposition upon the precious time of this )ourt, but alsobecause of the inevitable and resultant delay, intended orotherwise, in the adjudication of the case which often has to beremanded or referred to the lower court, the proper forum underthe rules of procedure, or as better equipped to resolve the issuessince this )ourt is not a trier of facts. Ee reiterated the judicial

policy that this )ourt will not entertain direct resort to it unless theredress desired cannot be obtained in the appropriate courts orwhere exceptional and compelling circumstances justify availmentof a remedy within and calling for the exercise of 'its* primary

jurisdiction.III


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/otwithstanding the foregoing procedural obstacles against thefirst set of petitioners, we opt to resolve this case on its meritsconsidering that the lifetime of the challenged %rdinances is aboutto end. %rdinance /o. #75>+ of the )ity of (uerto (rincesa is

effective only up to # @anuary #>>6, while %rdinance /o. + of the(rovince of (alawan, enacted on #> ?ebruary #>>2, is effectivefor only five 7- years. Besides, these %rdinances wereundoubtedly enacted in the exercise of powers under the newDG) relative to the protection and preservation of theenvironment and are thus novel and of paramount importance. /ofurther delay then may be allowed in the resolution of the issuesraised.

It is of course settled that laws including ordinances enacted bylocal government units- enjoy the presumption of constitutionality.'ifLsupport?ootnotes*'#7*'endif* To overthrow this presumption, there must be a clearand unequivocal breach of the )onstitution, not merely a doubtfulor argumentative contradiction. In short, the conflict with the)onstitution must be shown beyond reasonable doubt.'if Lsupport?ootnotes*'#:*'endif*Ehere doubt exists, even if well founded, there can be nofinding of unconstitutionality. To doubt is to sustain. 'if Lsupport?ootnotes*'#;*'endif*


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resources by Filipino citizens, as well as cooperative fish farming, with

priority to subsistence fishermen and fishworkers in rivers, lakes, bays,

and lagoons.

"ections + and ; of


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;#:9- defines a mar&inal farmer or fishermanas an individualengaged in subsistence farming or fishing which shall be limitedto the sale, barter or exchange of agricultural or marine productsproduced by himself and his immediate family. It bears repeating

that nothing in the record supports a finding that any petitionerfalls within these definitions.Besides, "ection + of


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generation, but also for the generations to come.The so5called preferential right of subsistence or marginalfishermen to the use of marine resources is not at all absolute. Inaccordance with the Cegalian 0octrine, marine resources belong

to the "tate, and, pursuant to the first paragraph of "ection +,


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Subject to whatever rules and regulations and local laws that may be

passed, may be existing or will be passed.[if !supportFootnotes][21][endif]

(underscoring supplied for emphasis).

Ehat must li&ewise be borne in mind is the state policy enshrined

in the )onstitution regarding the duty of the "tate to protect andadvance the right of the people to a balanced and healthfulecology in accord with the rhythm and harmony of nature.'if Lsupport?ootnotes*'++*'endif*%n this score, in %posa $. ?actoran,'if Lsupport?ootnotes*'+2*'endif*this )ourtdeclaredWhile the right to balanced and healthful ecology is to be found under

the Declaration of Principles the State Policies and not under the Bill of

Rights, it does not follow that it is less important than any of the civil

and political rights enumerated in the latter. Such a right belongs to adifferent category of rights altogether for it concerns nothing less than

self-preservation and self-perpetuation - aptly and fittingly stressed by

the petitioners - the advancement of which may even be said to predate

all governments and constitutions. As a matter of fact, these basic rights

need not even be written in the Constitution for they are assumed to exist

from the inception of humankind. If they are now explicitly mentioned

in the fundamental charter, it is because of the well-founded fear of its

framers that unless the rights to a balanced and healthful ecology and tohealth are mandated as state policies by the Constitution itself, thereby

highlighting their continuing importance and imposing upon the state a

solemn obligation to preserve the first and protect and advance the

second , the day would not be too far when all else would be lost not

only for the present generation, but also for those to come - generations

which stand to inherit nothing but parched earth incapable of sustaining

life.

The right to a balanced and healthful ecology carries with it a correlative

duty to refrain from impairing the environment ...

The DG) provisions invo&ed by private respondents merely see&to give flesh and blood to the right of the people to a balancedand healthful ecology. In fact, the General Eelfare )lause,expressly mentions this right


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SEC. 16. General Welfare.-- Every local government unit shall exercise

the powers expressly granted, those necessarily implied therefrom, as

well as powers necessary, appropriate, or incidental for its efficient and

effective governance, and those which are essential to the promotion of

the general welfare. Within their respective territorial jurisdictions, local

government units shall ensure and support, among other things, the

preservation and enrichment of culture, promote health and safety,

enhance the right of the people to a balanced ecology, encourage and

support the development of appropriate and self-reliant scientific and

technological capabilities, improve public morals, enhance economic

prosperity and social justice, promote full employment among their

residents, maintain peace and order, and preserve the comfort and

convenience of their inhabitants. (underscoring supplied).

Aoreover, "ection 7c- of the DG) explicitly mandates that thegeneral welfare provisions of the DG) shall be liberally interpretedto give more powers to the local government units in acceleratingeconomic development and upgrading the quality of life for thepeople of the community.The DG) vests municipalities with the power to grant fisheryprivileges in municipal waters and to impose rentals, fees or

charges therefor= to penalie, by appropriate ordinances, the useof explosives, noxious or poisonous substances, electricity, muro+ami, and other deleterious methods of fishing= and to prosecuteany violation of the provisions of applicable fishery laws. 'if Lsupport?ootnotes*'+4*'endif*?urther, the san&&unian& bayan, thesan&&unian& panlun&sodand thesan&&unian& panlala!i&an aredirected to enactordinances for the general welfare of the municipality and itsinhabitants, which shall include, inter alia, ordinances that

'p*rotect the environment and impose appropriate penalties foracts which endanger the environment such as dynamite fishingand other forms of destructive fishing ... and such other activitieswhich result in pollution, acceleration of eutrophication of riversand la&es or of ecological imbalance.'if Lsupport?ootnotes*'+7*'endif*

?inally, the centerpiece of DG) is the system of decentraliation'if L


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support?ootnotes*'+:*'endif* as expressly mandated by the )onstitution.'if Lsupport?ootnotes*'+;*'endif*Indispensable thereto is devolution and the DG) expresslyprovides that 'a*ny provision on a power of a local governmentunit shall be liberally interpreted in its favor, and in case of doubt,

any question thereon shall be resolved in favor of devolution ofpowers and of the lower local government unit.


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and conservation of coral resources= 4- C.


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sustainable development of (alawan compatible with protectingand enhancing the natural resources and endangeredenvironment of the province, which shall serve to guide the localgovernment of (alawan and the government agencies concerned

in the formulation and implementation of plans, programs andprojects affecting said province.'if Lsupport?ootnotes*'2+*'endif*


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mangroves, seagrass beds, and reef flats= provide food for marineplants and animals= and serve as a protective shelter for aquaticorganisms.'if Lsupport?ootnotes*'27*'endif*It is said that 'e*cologically, the reefs areto the oceans what forests are to continents they are shelter and

breeding grounds for fish and plant species that will disappearwithout them.'if Lsupport?ootnotes*'2:*'endif*

The prohibition against catching live fish stems, in part, from themodern phenomenon of live5fish trade which entails the catchingof so5called exotic tropical species of fish not only for aquariumuse in the Eest, but also for the mar&et for live banquet fish'which* is virtually insatiable in ever more affluent


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provided in %rdinance /o. +, "eries of #>>2 of the (rovince of(alawan, on one hand, and the use of sodium cyanide, on theother, is painfully obvious. In sum, the public purpose andreasonableness of the %rdinances may not then be controverted.

>+, on the theory that the subject thereof is within thejurisdiction and responsibility of the Bureau of ?isheries and


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Hnvironment and /atural Cesources-. Hxecutive %rder /o. >:; of29 @une #>64 transferred the B?


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dynamite fishing and other forms of destructive fishing and suchother activities which result in pollution, acceleration ofeutrophication of rivers and la&es or of ecological imbalance. 'if Lsupport?ootnotes*'4;*'endif*

In closing, we commend the %an&&unian& Panlun&sod of the )ityof (uerto (rincesa and %an&&unian& Panlala!i&an of the(rovince of (alawan for exercising the requisite political will toenact urgently needed legislation to protect and enhance themarine environment, thereby sharing in the herculean tas& ofarresting the tide of ecological destruction. Ee hope that otherlocal government units shall now be roused from their lethargyand adopt a more vigilant stand in the battle against thedecimation of our legacy to future generations.


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establishments, within the Hrmita5Aalate area. The petition at bar assails asimilarly5motivated city ordinance that prohibits those same establishmentsfrom offering short5time admission, as well as pro5rated or !wash up! ratesfor such abbreviated stays. %ur earlier decision tested the city ordinanceagainst our sacred constitutional rights to liberty, due process and equalprotection of law. The same parameters apply to the present petition.This (etition+under Cule 47 of the Cevised Cules on )ivil (rocedure, whichsee&s the reversal of the 0ecision2in ).


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automatically be cancelled."H). :. Cepealing )lause.


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that the %rdinance is constitutional.0uring the pre5trial conference, the ED), T) and "T0) agreed to submitthe case for decision without trial as the case involved a purely legalquestion.#:%n %ctober +9, #>>2, the CT) rendered a decision declaringthe %rdinance null and void. The dispositive portion of the decision readsE1HCH?%CH, in view of all the foregoing, '%*rdinance /o. ;;;4 of the)ity of Aanila is hereby declared null and void.

>4, the )ourt treated the petition as apetition for certiorari and referred the petition to the )ourt of


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to fix penalties for the violation of ordinances which shall not exceed twohundred pesos fine or six months imprisonment, or both such fine andimprisonment for a single offense.+2

(etitioners argued that the %rdinance is unconstitutional and void since itviolates the right to privacy and the freedom of movement= it is an invalidexercise of police power= and it is an unreasonable and oppressiveinterference in their business.The )ourt of


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susceptible of precise definition.+6In this jurisdiction, the extancy of !a directand personal interest! presents the most obvious cause, as well as thestandard test for a petitioners standing.+>In a similar vein, the Fnited"tates "upreme )ourt reviewed and elaborated on the meaning of thethree constitutional standing requirements of injury, causation, andredressability inAllen $. 4ri&ht.29

/onetheless, the general rules on standing admit of several exceptionssuch as the overbreadth doctrine, taxpayer suits, third party standing and,especially in the (hilippines, the doctrine of transcendental importance. 2#

?or this particular set of facts, the concept of third party standing as anexception and the overbreadth doctrine are appropriate. In Po!ers $.Ohio#2+the Fnited "tates "upreme )ourt wrote that !Ee have recogniedthe right of litigants to bring actions on behalf of third parties, provided threeimportant criteria are satisfied the litigant must have suffered an Ninjury5in5

fact,M thus giving him or her a !sufficiently concrete interest! in the outcomeof the issue in dispute= the litigant must have a close relation to the thirdparty= and there must exist some hindrance to the third partys ability toprotect his or her own interests.!221erein, it is clear that the businessinterests of the petitioners are li&ewise injured by the %rdinance. They relyon the patronage of their customers for their continued viability whichappears to be threatened by the enforcement of the %rdinance. Therelative silence in constitutional litigation of such special interest groups inour nation such as the


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the rights of third parties who see& access to their mar&et or function.! 26

In this case, the petitioners claim thatthe %rdinance ma&es a sweeping intrusion into the right to liberty of theirclients. Ee can see that based on the allegations in the petition, the%rdinance suffers from overbreadth.Ee thus recognie that the petitioners have a right to assert theconstitutional rights of their clients to patronie their establishments for a!wash5rate! time frame.

III.To students of jurisprudence, the facts of this case will recall to mind notonly the recent City of ,anila ruling, but our #>:; decision in 'rmita+,alate-otel and ,otel Operations Association# Inc.# $. -on. City ,ayor of,anila.49'rmita+,alateconcerned the )ity ordinance requiring patrons tofill up a prescribed form stating personal information such as name, gender,nationality, age, address and occupation before they could be admitted to amotel, hotel or lodging house. This earlier ordinance was precisely enactedto minimie certain practices deemed harmful to public morals. < purposesimilar to the annulled ordinance in City of ,anilawhich sought a blan&etban on motels, inns and similar establishments in the Hrmita5Aalate area.1owever, the constitutionality of the ordinance in 'rmita+,alate wassustained by the )ourt.The common thread that runs through those decisions and the case at bargoes beyond the singularity of the localities covered under the respectiveordinances.


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conform to the following substantive requirements #- must not contravenethe )onstitution or any statute= +- must not be unfair or oppressive= 2-must not be partial or discriminatory= 4- must not prohibit but may regulatetrade= 7- must be general and consistent with public policy= and :- mustnot be unreasonable.4#

The %rdinance prohibits two specific and distinct business practices,namely wash rate admissions and renting out a room more than twice aday. The ban is evidently sought to be rooted in the police power asconferred on local government units by the Docal Government )odethrough such implements as the general welfare clause.


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history by acting as judicious and neutral arbiters of the rule of law, andthere is no surer way to that end than through the development of rigorousand sophisticated legal standards through which the courts analye themost fundamental and far5reaching constitutional questions of the day.B.The primary constitutional question that confronts us is one of due process,as guaranteed under "ection #, (rocedural due process concerns itself withgovernment action adhering to the established process when it ma&es anintrusion into the private sphere. Hxamples range from the form of noticegiven to the level of formality of a hearing.If due process were confined solely to its procedural aspects, there wouldarise absurd situation of arbitrary government action, provided the properformalities are followed. "ubstantive due process completes the protectionenvisioned by the due process clause. It inquires whether the governmenthas sufficient justification for depriving a person of life, liberty, or property.79

The question of substantive due process, moreso than most other fields oflaw, has reflected dynamism in progressive legal thought tied with theexpanded acceptance of fundamental freedoms. (olice power, traditionallyawesome as it may be, is now confronted with a more rigorous level ofanalysis before it can be upheld. The vitality though of constitutional dueprocess has not been predicated on the frequency with which it has beenutilied to achieve a liberal result for, after all, the libertarian ends shouldsometimes yield to the prerogatives of the "tate. Instead, the due process

clause has acquired potency because of the sophisticated methodologythat has emerged to determine the proper metes and bounds for itsapplication.).The general test of the validity of an ordinance on substantive due processgrounds is best tested when assessed with the evolved footnote 4 test laiddown by the F.". "upreme )ourt in F.". v. )arolene (roducts.7#?ootnote 4


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of the )arolene (roducts case ac&nowledged that the judiciary would deferto the legislature unless there is a discrimination against a !discrete andinsular! minority or infringement of a !fundamental right.! 7+)onsequently,two standards of judicial review were established strict scrutiny for lawsdealing with freedom of the mind or restricting the political process, and therational basis standard of review for economic legislation.

< third standard, denominated as heightened or immediate scrutiny, waslater adopted by the F.". "upreme )ourt for evaluating classificationsbased on gender72and legitimacy.74Immediate scrutiny was adopted by theF.". "upreme )ourt in )raig,77after the )ourt declined to do so in Ceed v.Ceed.7:Ehile the test may have first been articulated in equal protectionanalysis, it has in the Fnited "tates since been applied in all substantivedue process cases as well.Ee ourselves have often applied the rational basis test mainly in analysis

of equal protection challenges.7;Fsing the rational basis examination, lawsor ordinances are upheld if they rationally further a legitimate governmentalinterest.76Fnder intermediate review, governmental interest is extensivelyexamined and the availability of less restrictive measures is considered. 7>


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were are trivial since they seem shorn of political consequence.)oncededly, these are not the sort of cherished rights that, whenproscribed, would impel the people to tear up their cedulas. "till, the Bill ofCights does not shelter gravitas alone. Indeed, it is those !trivial! yetfundamental freedoms O which the people reflexively exercise any daywithout the impairing awareness of their constitutional consequence O thataccurately reflect the degree of liberty enjoyed by the people. Diberty, asintegrally incorporated as a fundamental right in the )onstitution, is not aTen )ommandments5style enumeration of what may or what may not bedone= but rather an atmosphere of freedom where the people do not feellabored under a Big Brother presence as they interact with each other, theirsociety and nature, in a manner innately understood by them as inherent,without doing harm or injury to others.0.

The rights at sta&e herein fall within the same fundamental rights to libertywhich we upheld in )ity of Aanila v. 1on. Daguio, r. Ee expounded on thatmost primordial of rights, thusDiberty as guaranteed by the )onstitution was defined by @ustice Aalcolmto include !the right to exist and the right to be free from arbitrary restraintor servitude. The term cannot be dwarfed into mere freedom from physicalrestraint of the person of the citien, but is deemed to embrace the right ofman to enjoy the facilities with which he has been endowed by his )reator,subject only to such restraint as are necessary for the common welfare.!' :7*In accordance with this case, the rights of the citien to be free to use hisfaculties in all lawful ways= to live and wor& where he will= to earn hislivelihood by any lawful calling= and to pursue any avocation are all deemedembraced in the concept of liberty.'::*The F.". "upreme )ourt in the case of oth $. 0oard of e&ents, sought toclarify the meaning of !liberty.! It saidEhile the )ourt has not attempted to define with exactness the liberty . . .guaranteed 'by the ?ifth and ?ourteenth


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patrons of a product and the petitioners of lucrative business ties in withanother constitutional requisite for the legitimacy of the %rdinance as apolice power measure. It must appear that the interests of the publicgenerally, as distinguished from those of a particular class, require aninterference with private rights and the means must be reasonablynecessary for the accomplishment of the purpose and not undulyoppressive of private rights.;#It must also be evident that no otheralternative for the accomplishment of the purpose less intrusive of privaterights can wor&. Aore importantly, a reasonable relation must exist betweenthe purposes of the measure and the means employed for itsaccomplishment, for even under the guise of protecting the public interest,personal rights and those pertaining to private property will not be permittedto be arbitrarily invaded.;+

Dac&ing a concurrence of these requisites, the police measure shall be

struc& down as an arbitrary intrusion into private rights.


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The behavior which the %rdinance see&s to curtail is in fact alreadyprohibited and could in fact be diminished simply by applying existing laws.Dess intrusive measures such as curbing the proliferation of prostitutes anddrug dealers through active police wor& would be more effective in easingthe situation. "o would the strict enforcement of existing laws andregulations penaliing prostitution and drug use. These measures wouldhave minimal intrusion on the businesses of the petitioners and otherlegitimate merchants. ?urther, it is apparent that the %rdinance can easilybe circumvented by merely paying the whole day rate without anyhindrance to those engaged in illicit activities. Aoreover, drug dealers andprostitutes can in fact collect !wash rates! from their clientele by chargingtheir customers a portion of the rent for motel rooms and even apartments.I8.Ee reiterate that individual rights may be adversely affected only to the

extent that may fairly be required by the legitimate demands of publicinterest or public welfare. The "tate is a leviathan that must be restrainedfrom needlessly intruding into the lives of its citiens. 1owever well5intentioned the %rdinance may be, it is in effect an arbitrary and whimsicalintrusion into the rights of the establishments as well as their patrons. The%rdinance needlessly restrains the operation of the businesses of thepetitioners as well as restricting the rights of their patrons without sufficient

justification. The %rdinance rashly equates wash rates and renting out aroom more than twice a day with immorality without accommodatinginnocuous intentions.The promotion of public welfare and a sense of morality among citiensdeserves the full endorsement of the judiciary provided that such measuresdo not trample rights this )ourt is sworn to protect.;;The notion that thepromotion of public morality is a function of the "tate is as old as To be candid about it, the oft5quoted


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widely accepted distinctions between right and wrong, they will remain sooriented.et the continuing progression of the human story has seen not only theacceptance of the right5wrong distinction, but also the advent offundamental liberties as the &ey to the enjoyment of life to the fullest. %urdemocracy is distinguished from non5free societies not with any moreextensive elaboration on our part of what is moral and immoral, but fromour recognition that the individual liberty to ma&e the choices in our lives isinnate, and protected by the "tate. Independent and fair5minded judgesthemselves are under a moral duty to uphold the )onstitution as theembodiment of the rule of law, by reason of their expression of consent todo so when they ta&e the oath of office, and because they are entrusted bythe people to uphold the law.6#

Hven as the implementation of moral norms remains an indispensable

complement to governance, that prerogative is hardly absolute, especiallyin the face of the norms of due process of liberty.


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%rdinance /o. 69+;.+Cespondent mayor approved the ordinance on/ovember +6, +99#.2It became effective on 0ecember +6, +99#, after itspublication.4

%rdinance /o. 69+; was enacted pursuant to the police power delegatedto local government units, a principle described as the power inherent in agovernment to enact laws, within constitutional limits, to promote the order,safety, health, morals and general welfare of the society.7This is evidentfrom "ections # and 2 thereof which state"H)TI%/ #. ?or the purpose of promoting sound urban planning andensuring health, public safety, and general welfare of the residents of(andacan and "ta.


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tan&s starting with the D(G spheres and the commencing of wor&s for thecreation of safety buffer and green ones surrounding the (andacanTerminals. xxx0/o) 2.O )onsistent with the scale5down program mentioned above,the %ID )%A(


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69+; and order the immediate removal of the terminals of the oilcompanies.##

The issues raised by petitioners are as follows#. whether respondent has the mandatory legal duty to enforce %rdinance/o. 69+; and order the removal of the (andacan Terminals, and+. whether the @une +:, +99+ A%F and the resolutions ratifying it canamend or repeal %rdinance /o. 69+;.#+

(etitioners contend that respondent has the mandatory legal duty, under"ection 477 b- +- of the Docal Government )ode C< ;#:9-, #2to enforce%rdinance /o. 69+; and order the removal of the (andacan Terminals ofthe oil companies. Instead, he has allowed them to stay.CespondentMs defense is that %rdinance /o. 69+; has been superseded bythe A%F and the resolutions.#41owever, he also confusingly argues thatthe ordinance and A%F are not inconsistent with each other and that the

latter has not amended the former. 1e insists that the ordinance remainsvalid and in full force and effect and that the A%F did not in any wayprevent him from enforcing and implementing it. 1e maintains that theA%F should be considered as a mere guideline for its full implementation. #7

Fnder Cule :7, "ection 2#:of the Cules of )ourt, a petition for mandamusmay be filed when any tribunal, corporation, board, officer or personunlawfully neglects the performance of an act which the law specificallyenjoins as a duty resulting from an office, trust or station. ,andamusis anextraordinary writ that is employed to compel the performance, whenrefused, of a ministerial duty that is already imposed on the respondent andthere is no other plain, speedy and adequate remedy in the ordinary courseof law. The petitioner should have a well5defined, clear and certain legalright to the performance of the act and it must be the clear and imperativeduty of respondent to do the act required to be done.#;

,andamuswill not issue to enforce a right, or to compel compliance with aduty, which is questionable or over which a substantial doubt exists. Theprincipal function of the writ of mandamusis to command and to expedite,not to inquire and to adjudicate= thus, it is neither the office nor the aim ofthe writ to secure a legal right but to implement that which is already

established. Fnless the right to the relief sought is unclouded, mandamuswill not issue.#6

To support the assertion that petitioners have a clear legal right to theenforcement of the ordinance, petitioner "@" states that it is a political partyregistered with the )ommission on Hlections and has its offices in Aanila. Itclaims to have many members who are residents of Aanila. The otherpetitioners, )abigao and Tumbo&on, are allegedly residents of Aanila.


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Ee need not belabor this point. Ee have ruled in previous cases that whena mandamusproceeding concerns a public right and its object is to compela public duty, the people who are interested in the execution of the laws areregarded as the real parties in interest and they need not show any specificinterest.#>Besides, as residents of Aanila, petitioners have a direct interestin the enforcement of the cityMs ordinances. Cespondent never questionedthe right of petitioners to institute this proceeding.%n the other hand, the Docal Government )ode imposes upon respondentthe duty, as city mayor, to !enforce all laws and ordinances relative to thegovernance of the city.!P+9%ne of these is %rdinance /o. 69+;. ;, s. +99+ and#2, s. +992 of the %an&&uniancan amend or repeal %rdinance /o. 69+;.Ee need not resolve this issue.


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#ERE!ORE, the petition is hereby &RANTED. Cespondent 1on. @ose D.9>#and +>6+amended the AI


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+99#. AI #;>,626,

H59#:59#2;7 #>>+5+99# +9,+;:,976.99 #+,2;#,62+.99 2+,:4;,6

H59#:59#2;: #>>+5+99# 76,#44,9+6.99 27,4;;,;#+.99 >2,:+#,;

H59#:59#2;; #>>+5+99# #6,#24,:#4.:7 ##,9:7,#66.7> +>,#>>,6

H59#:59#2;6 #>>+5+99# ###,#9;,>79.49 :;,;>4,:6#.7> #;6,>9+,

H59#:59#2;> #>>+5+99# 4,2++,249.99 +,:2;,2:9.99 :,>7>,;9

H59#:59#269 #>>+5+99# ;,;;:,42:.99 4,;44,>44.99 #+,7+#,2

RH59#:59#2567 #>>65+99# :,444,6#9.99 +,>99,#:4.79 >,244,>;RH59#:59#26; #>>65+99# 24,6;:,699.99 7,:>4,7:9.99 79,7;#,2

RH59#:59#2>: #>>65+99# ;7,+49.99 22,676.99 #9>,9>6.

GC7 (+2+,9;9,6:2.4; ( :+4,7

#>>+5#>>; C(T was paid on 0ec. +4, #>>; as per %.C.S>4;:#9+ for(4,+9;,9+6.;7S>4;:#9# for (+6,:;:,469.99S>4;:#92 for (4>,##7.99:

%n #; @uly +99#, the )ity of (araQaque, through its )ity Treasurer, issuednotices of levy and warrants of levy on the


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AI


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not subject to real estate tax by local governments.AI2 of the Docal Government )ode. Thus,respondents assert that AI


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corporation, is not exempt from real estate tax. Cespondents claim that thedeletion of the phrase !any government5owned or controlled so exempt byits charter! in "ection +24e- of the Docal Government )ode withdrew thereal estate tax exemption of government5owned or controlled corporations.The deleted phrase appeared in "ection 49a- of the #>;4 Ceal (ropertyTax )ode enumerating the entities exempt from real estate tax.There is no dispute that a government5owned or controlled corporation isnot exempt from real estate tax. 1owever, AI


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provided for in "ection ## of H. %. /o. >92 as amended, shall be convertedinto the equity of the /ational Government in the


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through a charter. x x x Hmphasis supplied-Ehen the law vests in a government instrumentality corporate powers, theinstrumentality does not become a corporation. Fnless the governmentinstrumentality is organied as a stoc& or non5stoc& corporation, it remainsa government instrumentality exercising not only governmental but alsocorporate powers. Thus, AI


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cannot tax the national government, which historically merely delegated tolocal governments the power to tax. Ehile the #>6; )onstitution nowincludes taxation as one of the powers of local governments, localgovernments may only exercise such power !subject to such guidelinesand limitations as the )ongress may provide.!#6

Ehen local governments invo&e the power to tax on national governmentinstrumentalities, such power is construed strictly against localgovernments. The rule is that a tax is never presumed and there must beclear language in the law imposing the tax. ++)/(l u6l/0 +/0+ >o +ou)* ()* 0oll/): ol/0y0o)+/*(/o)+. There must be express language in the law empoweringlocal governments to tax national government instrumentalities.


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enacted by )ongress to carry into execution the powers vested in thefederal government. A) )ulloch v. Aaryland, 4 Eheat 2#:, 4 D Hd. 7;>-This doctrine emanates from the !supremacy! of the /ational Governmentover local governments.!@ustice 1olmes, spea&ing for the "upreme )ourt, made reference to theentire absence of power on the part of the "tates to touch, in that waytaxation- at least, the instrumentalities of the Fnited "tates @ohnson v.Aaryland, +74 F" 7#- and it can be agreed that no state or politicalsubdi$ision can re&ulate a federal instrumentality in such a !ay as to

pre$ent it from consummatin& its federal responsibilities# or e$en toseriously burden it in the accomplishment of them.! Pu6l/0 Do/)/o)The P/l//)+.The )ivil )ode provides

. (roperty is either of public dominion or of private ownership.olloB/): /):+ ( oy o> u6l/0 *o/)/o)#- To+ /))** >o u6l/0 u+, +u0 (+ o(*+, 0()(l+, /+,o)+, o+ ()* 6/*:+ 0o)+u0* 6y (, ban&s, shores,roadsteads, and others of similar character=+- Those which belong to the "tate, without being for public use, and areintended for some public service or for the development of the nationalwealth. Hmphasis supplied-


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6/*:+ 0o)+u0* 6y (,! are owned by the "tate. T Go+G /)0lu*+ +(o+ ()* (/o+. The AI


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thus are properties of public dominion. A+ o/+ o> u6l/0 *o/)/o), A/o L()*+ ()* "u/l*/):+ ( ou+/* 0o0 o> ().The )ourt has ruled repeatedly that properties of public dominion areoutside the commerce of man. #7, this )ourt already ruled inMunicipality of Cavite v. o!asthat properties devoted to public use areoutside the commerce of man, thus

7, which says!Cou)(l /):+ ( 0())o 6 +ol* 60(u+ y ( 6y / y)(u ou+/* o> 0o0 ( o+ >o u6l/0 u+, +u0 (+ l((+, ++, 0oo) l()*+, /+, >ou)(/)+, 0.! Hmphasissupplied- +2


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encumbrance or disposition through public or private sale. 0/o) /:y- +(ll 6 )o)-(l/)(6l ()* +(ll )o 6 +u6H0o o00u(/o), )y, +(l, l(+, o o */+o+//o) u)/l (:(/)*0l(* (l/)(6l u)* o/+/o)+ o> /+ A0 o 6y o0l((/o)o> P+/*). Hmphasis and underscoring supplied-Thus, unless the (resident issues a proclamation withdrawing the


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+l) o u6l/0 u+, ()* >o +0/>/0 u6l/0 uo++, ()y o> l()*+ o> u6l/0 *o(/), u+ o> B/0 /+ )o oB/+ */0*6y l(B. T +* l()* +(ll (> (/) +u6H0 o +0/>/0 u6l/0 uo+ /)*/0(* u)/l oB/+ o/** 6y l(B oo0l((/o)=x x x x. Hmphasis supplied-There is no question, therefore, that unless the Ru6l/0AI P/l//)+ 6u /l*/) )( o> ()y ol//0(l +u6*//+/o) o o> ()y 0oo( (:)0y o/)+u)(l/y, by the executive head of the agency or instrumentality.Hmphasis supplied-In AI


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(*/)/+(/o) o> Auo/y, +u6H0 o /+/): /:+, /> ()y. TheBureau of Dands and other appropriate government agencies shallunderta&e an actual survey of the area transferred within one year from thepromulgation of this Hxecutive %rder and the corresponding title to beissued in the name of the +(ll )o 6*/+o+* ou: +(l o ou: ()y o o* u)l++ +0/>/0(lly(o* 6y P+/*) o> P/l//)+. Hmphasis supplied-"H)TI%/ ++. Transfer of '5istin& Facilities and Intan&ible Assets. $ (0/l//+, u)B(y+, l()*+, 6u/l*/):+ ()* ooy, movable or immovable, belonging to the


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The transfer of the


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properties remain owned by the Cepublic and continue to be exempt fromreal estate tax.The Cepublic may grant the beneficial use of its real property to an agencyor instrumentality of the national government. This happens when title ofthe real property is transferred to an agency or instrumentality even as theCepublic remains the owner of the real property. "uch arrangement doesnot result in the loss of the tax exemption. "ection +24a- of the DocalGovernment )ode states that real property owned by the Cepublic loses itstax exemption only if the !beneficial use thereof has been granted, forconsideration or otherwise, to a ((6l +o).! AI2 of the Docal Government )ode of #>># withdrew thetax exemption of !(ll +o)+, B )(u(l o Hu/*/0(l! upon theeffectivity of the )ode. "ection #>2 provides"H). #>2. 4ithdra!al of Ta5 '5emption Pri$ile&es O U)l++ oB/+o/** /) /+ Co*, tax exemptions or incentives granted to, or

+)ly )Hoy* 6y (ll +o)+, B )(u(l o Hu/*/0(l, includinggovernment5owned or controlled corporations, except local water districts,cooperatives duly registered under C.26, non5stoc& and non5profithospitals and educational institutions are hereby withdrawn upon effectivityof this )ode. Hmphasis supplied-The minority states that AI


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exemption of (ll Hu/*/0(l +o)+, then AIo uo* o/+/o)+ o> Lo0(l &o))Co* ( B/*(B) /o)+ >o (ly ( 0o )o Hu+&OCC+, 6u (ll +o)+. To repeat, the provisions lay down the explicitproposition that the withdrawal of realty tax exemption applies to allpersons. The reference to or the inclusion of G%))s is only clarificatory orillustrative of the explicit provision.T GAll +o)+G )0o(+++ Bo 0l(+++ o> +o)+0o:)/* u)* ou l(B+, )(u(l ()* Hu/*/0(l +o)+. O6/ou+ly,%IAA /+ )o ( )(u(l +o). Tu+, */)(/ + /+ )o Hu+B %IAA /+ ( &OCC, 6u B %IAA /+ ( Hu/*/0(l +o) ( (ll.Hmphasis and underscoring in the original-The minority posits that the !determinative test! whether AI


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The minority, however, theories that unless exempted in "ection #>2 itself,all juridical persons are subject to tax by local governments. The minorityinsists that the juridical persons exempt from local taxation are limited tothe three classes of entities specifically enumerated as exempt in "ection#>2. Thus, the minority statesx x x Fnder "ection #>2, the exemption is limited to a- local water districts=b- cooperatives duly registered under Cepublic 26= and c- non5stoc& and non5profit hospitals and educational institutions. It would bebelaboring the obvious why the AI


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Docal Government )ode grants an express authoriation, localgovernments have no power to tax the national government, its agenciesand instrumentalities. )learly, the rule is local governments have no powerto tax the national government, its agencies and instrumentalities. 2 and+24 of the Docal Government )ode, the later provisions prevail over"ection #22. Thus, the minority assertsx x x Aoreover, sequentially "ection #22 antecedes "ection #>2 and +24.?ollowing an accepted rule of construction, in case of conflict the

subsequent provisions should prevail. Therefore, AI2 and +24 on the other. /o one


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has urged that there is such a conflict, much less has any one presentedapersuasive argument that there is such a conflict. The minoritysassumption of an irreconcilable conflict in the statutory provisions is anegregious error for two reasons.?irst, there is no conflict whatsoever between "ections #22 and #>2because "ection #>2 expressly admits its subordination to other provisionsof the )ode when "ection #>2 states !'u*nless otherwise provided in this)ode.! By its own words, "ection #>2 admits the superiority of otherprovisions of the Docal Government )ode that limit the exercise of thetaxing power in "ection #>2. Ehen a provision of law grants a power butwithholds such power on certain matters, there is no conflict between thegrant of power and the withholding of power. The grantee of the powersimply cannot exercise the power on matters withheld from its power."econd, "ection #22 is entitled !)ommon Dimitations on the Taxing (owers

of Docal Government Fnits.! "ection #22 limits the grant to localgovernments of the power to tax, and not merely the exercise of adelegated power to tax. "ection #22 states that the taxing powers of localgovernments !shall not extend to the levy! of any &ind of tax on the nationalgovernment, its agencies and instrumentalities. There is no clearerlimitation on the taxing power than this."ince "ection #22 prescribes the !common limitations! on the taxingpowers of local governments, "ection #22 logically prevails over "ection#>2 which grants local governments such taxing powers. By their verymeaning and purpose, the !common limitations! on the taxing power prevailover the grant or exercise of the taxing power. If the taxing power of localgovernments in "ection #>2 prevails over the limitations on such taxingpower in "ection #22, then local governments can impose any &ind of taxon the national government, its agencies and instrumentalities $ a grossabsurdity.Docal governments have no power to tax the national government, itsagencies and instrumentalities, except as otherwise provided in the DocalGovernment )ode pursuant to the saving clause in "ection #22 stating!'u*nless otherwise provided in this )ode.! This exception $ which is an

exception to the exemption of the Cepublic from real estate tax imposed bylocal governments $ refers to "ection +24a- of the )ode. The exceptionto the exemption in "ection +24a- subjects real property owned by theCepublic, whether titled in the name of the national government, itsagencies or instrumentalities, to real estate tax if the beneficial use of suchproperty is given to a taxable entity.The minority also claims that the definition in the


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phrase !government5owned or controlled corporation! is not controlling. Theminority points out that "ection + of the Introductory (rovisions of the


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the )orporation )ode, the general incorporation law, and not tocorporations created by special charters. The minority sees no reason whygovernment corporations with special charters should have a capital stoc&.Thus, the minority declaresI submit that the definition of !government5owned or controlledcorporations! under the


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common shares of stoc& worth Two Billion ?ive 1undred Aillion which shallbe deemed paid for by the Government with the net asset values of theBan& remaining after the transfer of assets and liabilities as provided in"ection 29 hereof. Hmphasis supplied-%ther government5owned corporations organied as stoc& corporationsunder their special charters are the (hilippine )rop Insurance)orporation,4+ (hilippine International Trading )orporation,42 and the(hilippine /ational Ban&44before it was reorganied as a stoc& corporationunder the )orporation )ode.


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In contrast, government instrumentalities vested with corporate powers andperforming governmental or public functions need not meet the test ofeconomic viability. These instrumentalities perform essential public servicesfor the common good, services that every modern "tate must provide itscitiens. These instrumentalities need not be economically viable since thegovernment may even subsidie their entire operations. Theseinstrumentalities are not the !government5owned or controlled corporations!referred to in "ection #:, 6; )onstitution.Thus, the )onstitution imposes no limitation when the legislature createsgovernment instrumentalities vested with corporate powers but performingessential governmental or public functions. )ongress has plenary authorityto create government instrumentalities vested with corporate powersprovided these instrumentalities perform essential government functions orpublic services. 1owever, when the legislature creates through special

charters corporations that perform economic or commercial activities, suchentities $ &nown as !government5owned or controlled corporations! $must meet the test of economic viability because they compete in themar&et place.This is the situation of the Dand Ban& of the (hilippines and the0evelopment Ban& of the (hilippines and similar government5owned orcontrolled corporations, which derive their income to meet operatingexpenses solely from commercial transactions in competition with theprivate sector. The intent of the )onstitution is to prevent the creation ofgovernment5owned or controlled corporations that cannot survive on theirown in the mar&et place and thus merely drain the public coffers.)ommissioner Blas ?. %ple, proponent of the test of economic viability,explained to the )onstitutional )ommission the purpose of this test, asfollowsAC. %(DH Aadam (resident, the reason for this concern is really thatwhen the government creates a corporation, there is a sense in which thiscorporation becomes exempt from the test of economic performance. Ee&now what happened in the past. If a government corporation loses, then itma&es its claim upon the taxpayers money through new equity infusions

from the government and what is always invo&ed is the common good.That is the reason why this year, out of a budget of (##7 billion for theentire government, about (+6 billion of this will go into equity infusions tosupport a few government financial institutions.


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Therefore, when we insert the phrase !H)%/%AI) 8I


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the (hilippines. The operation of an international airport requires thepresence of personnel from the following government agencies#. The Bureau of Immigration and 0eportation, to document the arrival anddeparture of passengers, screening out those without visas or traveldocuments, or those with hold departure orders=+. The Bureau of )ustoms, to collect import duties or enforce the ban onprohibited importations=2. The quarantine office of the 0epartment of 1ealth, to enforce healthmeasures against the spread of infectious diseases into the country=4. The 0epartment of


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Aore importantly, as long as AI


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of public dominion.


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O ORDERED.Pan&aniban# C..# Puno# 6uisumbin 3nares+%antia&o# %ando$al+)utierre2# Austria+,artine2# Corona# Carpio ,orales# Calle/o# %r.# A2cuna#Tin&a# Chico+Na2ario# )arcia# 7elasco# r.# ..#concur.

-------------------------------------------------------------------------------DIENTIN& OPINION

TIN&A, J. @The legally correct resolution of this petition would have had the addedbenefit of an utterly fair and equitable result O a recognition of theconstitutional and statutory power of the )ity of (araQaque to impose realproperty taxes on the Aanila International


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The majority would overturn sub silencio, among others, at least one doenprecedents enumerated below#- Aactan5)ebu International ; by recently retired )hief @ustice 0avide, which heldthat the express withdrawal by the Docal Government )ode of previouslygranted exemptions from realty taxes applied to instrumentalities andgovernment5owned or controlled corporations G%))s- such as theAactan5)ebu International


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respectively, which relied in part on Aactan in holding the (hilippine (ortswherein the )ourt held that the (hividec Industrial


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et the majority now rules that the exceptions in the DG) no longer hold,since !local governments are devoid of power to tax the nationalgovernment, its agencies and instrumentalities.!+2The ruling in the lattercase, which held the G"I" as liable for real property taxes, is now put in

jeopardy by the majoritys ruling.There are certainly many other precedents affected, perhaps all previous

jurisprudence regarding local government taxation vis5a5vis governmententities, as well as any previous definitions of G%))s, and previousdistinctions between the exercise of governmental and proprietary functionsa distinction laid down by this )ourt as far bac& as #>#: +4-. Ehat is thereason offered by the majority for overturning or modifying all theseprecedents and doctrinesU /one is given, for the majority ta&es comfortinstead in the pretense that these precedents never existed. %nly childrenshould be permitted to subscribe to the theory that something bad will go

away if you pretend hard enough that it does not exist.I.)ase "hould 1ave Been 0ecided?ollowing Aactan (recedentThe core issue in this case, whether the AI


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exemption of the /ational Government, its agencies and instrumentalitiesfrom local taxation with the phrase !unless otherwise provided herein.! Itthen considered the other relevant provisions of the Docal Government)ode, particularly the following"H). #>2. Eithdrawal of Tax Hxemption (rivileges. O Fnless otherwiseprovided in this )ode, tax exemption or incentives granted to, or enjoyed byall persons, whether natural or juridical, including government5owned andcontrolled corporations, except local water districts, cooperatives dulyregistered under C.26, non5stoc& and non5profit hospitals andeducational institutions, are hereby withdrawn upon the effectivity of this)ode.+:

"H)TI%/ +2+. (ower to Devy Ceal (roperty Tax. O < province or city or amunicipality within the Aetropolitan Aanila area may levy an annual advalorem tax on real property such as land, building, machinery, and other

improvements not hereafter specifically exempted.+;"H)TI%/ +24. Hxemptions from Ceal (roperty Tax. 55 The following areexempted from payment of the real property taxa- Ceal property owned by the Cepublic of the (hilippines or any of itspolitical subdivisions except when the beneficial use thereof has beengranted, for consideration or otherwise, to a taxable personb- )haritable institutions, churches, parsonages or convents appurtenantthereto, mosques, non5profit or religious cemeteries and all lands,buildings, and improvements actually, directly, and exclusively used forreligious charitable or educational purposes=c-


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This is how the )ourt, correctly to my mind, defined the parameters inAactanThe foregoing sections of the DG) spea& of a- the limitations on thetaxing powers of local government units and the exceptions to suchlimitations= and b- the rule on tax exemptions and the exceptions thereto.The use of exceptions or provisos in these sections, as shown by thefollowing clauses#- !unless otherwise provided herein! in the opening paragraph of "ection#22=+- !Fnless otherwise provided in this )ode! in "ection #>2=2- !not hereafter specifically exempted! in "ection +2+= and4- !Hxcept as provided herein! in the last paragraph of "ection +24initially hampers a ready understanding of the sections. /ote, too, that theaforementioned clause in "ection #22 seems to be inaccurately worded.

Instead of the clause !unless otherwise provided herein,! with the !herein!to mean, of course, the section, it should have used the clause !unlessotherwise provided in this )ode.! The former results in absurdity since thesection itself enumerates what are beyond the taxing powers of localgovernment units and, where exceptions were intended, the exceptions areexplicitly indicated in the next. ?or instance, in item a- which exceptsincome taxes !when levied on ban&s and other financial institutions!= itemd- which excepts !wharfage on wharves constructed and maintained bythe local government unit concerned!= and item #- which excepts taxes,fees and charges for the registration and issuance of licenses or permits forthe driving of !tricycles.! It may also be observed that within the body itselfof the section, there are exceptions which can be found only in other partsof the DG), but the section interchangeably uses therein the clause,!except as otherwise provided herein! as in items c- and i-, or the clause!except as provided in this )ode! in item j-. These clauses would beobviously unnecessary or mere surplusages if the opening clause of thesection were !Fnless otherwise provided in this )ode! instead of !Fnlessotherwise provided herein.! In any event, even if the latter is used, sinceunder "ection +2+ local government units have the power to levy real

property tax, except those exempted therefrom under "ection +24, then"ection +2+ must be deemed to qualify "ection #22.Thus, reading together "ections #22, +2+, and +24 of the DG), weconclude that as a general rule, as laid down in "ection #22, the taxingpowers of local government units cannot extend to the levy of, inter alia,!taxes, fees and charges of any &ind on the /ational Government, itsagencies and instrumentalities, and local government units!= however,


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pursuant to "ection +2+, provinces, cities, and municipalities in theAetropolitan Aanila 2 of the DG) prescribes the general rule, vi., theyare withdrawn upon the effectivity of the DG), except those granted to localwater districts, cooperatives duly registered under C.26, non5stoc& and non5profit hospitals and educational institutions, and unlessotherwise provided in the DG). The latter proviso could refer to "ection +24which enumerates the properties exempt from real property tax. But the last

paragraph of "ection +24 further qualifies the retention of the exemptioninsofar as real property taxes are concerned by limiting the retention only tothose enumerated therein= all others not included in the enumeration lostthe privilege upon the effectivity of the DG). Aoreover, even as to realproperty owned by the Cepublic of the (hilippines or any of its politicalsubdivisions covered by item a- of the first paragraph of "ection +24, theexemption is withdrawn if the beneficial use of such property has beengranted to a taxable person for consideration or otherwise."ince the last paragraph of "ection +24 unequivocally withdrew, upon theeffectivity of the DG), exemptions from payment of real property taxesgranted to natural or juridical persons, including government5owned orcontrolled corporations, except as provided in the said section, and thepetitioner is, undoubtedly, a government5owned corporation, it necessarilyfollows that its exemption from such tax granted it in "ection #4 of its)harter, C.76, has been withdrawn.


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exemptions from real property taxes are enumerated in "ection +24, whichspecifically states that only real properties owned !by the Cepublic of the(hilippines or any of its political subdivisions! are exempted from thepayment of the tax. )learly, instrumentalities or G%))s do not fall withinthe exceptions under "ection +24.29

Aactan %verturned the(recedents /ow CeliedFpon by the AajorityBut the petitioners in Aactan also raised the )ourts ruling in Basco v.(


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v. "anche, 249 F" 4+-.The power to tax which was called by @ustice Aarsha

pubcorp batch 2

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