Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-11119            March 23, 1916

JUANA RIVERA, petitioner,
vs.
RICHARD CAMPBELL, judge of the Court of First Instance of the city of Manila, respondent.

Vicente Santia for petitioner.

Prosecuting Attorneys Paredes and De Joya for respondent.

JOHNSON, J.:

The petition in the present case was presented for the purpose of obtaining the writ of certiorari. The
record shows that the petitioner had been convicted of a violation of subsection (f) of section 4 of
Ordinance No. 149, first by the municipal court of the city of Manila and again by the Court of First
Instance of the city of Manila. She alleged in each court that the same was without jurisdiction to try
her for the crime committed. She admitted that she had committed the acts charged in the complaint,
but denied that the courts of the city of Manila had jurisdiction to try her for the same. Each of said
courts overruled her objection to the jurisdiction, each found her guilty of the crime charged, and
each sentenced her to pay a fine.

Upon the presentation of the petition in this court the respondent was ordered to appear and show
cause why the writ should not issue. In response to said order a demurrer was presented.

The facts upon which the present proceeding are based seem to be as follows: That the said Juana
Rivera was charged with having willfully and unlawfully washed garments, articles of clothing, and
fabrics in the waters of that part of the Mariquina River lying between the Santolan pumping station
and the Boso-Boso dam, in the Province of Rizal, a place then occupied by duly authorized
representatives and employees of the city of Manila, on or about May 11th, 1915, in violation of
subsection (f) of section 4 of Ordinance No. 149 of the city of Manila, in relation with the provisions
of sections 6 and 7 of the same Ordinance.

Upon said complaint the municipal court found the plaintiff guilty. She appealed to the Court of First
Instance where she was again found guilty of a violation of said Ordinance.

The simple question presented in the present case is whether or not the courts of the city of Manila
have jurisdiction over the crime committed by the petitioner at the place it was committed.

Said section 4 of paragraph (f) of said Ordinance provides as follows:

SECTION 4. The following regulations shall be observed upon all lands occupied by any duly
authorized representative, officer, or employee of the city of Manila:

xxx           xxx           xxx

 (f) Bathing in water courses. — All persons are prohibited from bathing in the river and water
courses. The washing of garments, articles of clothing, and fabrics in the waters of any river
or water course is prohibited.

Said section of said Ordinance was adopted by the municipal board of the city of Manila in
pursuance of the power conferred upon it by authority of the provisions of paragraphs (w) and (cc) of
section 17 of Act No. 183, and paragraph (i) of section 3 of Act No. 1150 of the Philippine
Commission.

Section 17 and paragraph (w) and (cc) provide:

SEC. 17 . . . . In addition to the foregoing the board (municipal) shall have the following
general powers:

xxx           xxx           xxx

(w) To maintain waterworks for the purpose of supplying water to the inhabitants of the city
(of Manila), to purify the source of supply, and regulate the control and use of the water, and
to fix and collect rents therefor; to regulate the construction, repair, and use of hydrants,
pumps, cisterns, and reservoirs, and to prevent the waste of water.

xxx           xxx           xxx

(cc) To extend and enforce all its ordinances over all waters within the city, . . . and for the
purpose of protecting and insuring the purity of the water supply of the city, to extend and
enforce ordinances to that end over all territory within the drainage area of such water
supply, or within one hundred meters of any reservoir, conduit, canal, aqueduct, or pumping
station used in connection with the city water service.

The municipal board was further authorized to protect the purity of the water supply of the city of
Manila, by Act No. 1150 of the Philippine Commission. Section 3 of said Act provides:

SEC. 3 (Act No. 1150.) The ordinances drafted by the Board of Health may provide for:

xxx           xxx           xxx

(i) Protection from infection of all public and private water supplies and sources, and
prohibition of the use of water of dangerous character of domestic purposes. Ordinances
enacted for the purpose of protecting the purity of the water supply of Manila shall apply to
and be enforced over all territory within the drainage area of such water supply or within one
hundred meters of any reservoir, conduit, canal, aqueduct, or pumping station used in
connection with the city water service."

It is admitted that during the dry season, the city of Manila was obliged to use, in addition to the
natural water supply from Boso-Boso dam, the water from Mariquina River; that the water was taken
out of the Mariquina Rivera by means of a pumping station located some distance below Boso-Boso
dam, and that the petitioner was found washing her clothing between the said pumping station and
Boso-Boso dam. It is clear, therefore, that she was guilty of interfering with the purity of the water
which was supplied to the city of Manila by said pumping station.
With reference to the jurisdiction of the courts of the city of Manila over said territory, it may be noted
that section 6 of said Ordinance No. 149, expressly confers upon the municipal court of the city of
Manila power to try any violation of any of its provisions. Section 7 of said ordinance provides the
penalty for its violation.

When the question of the jurisdiction of the Court of First Instance of the city of Manila was
presented to the lower court, Judge Campbell, the respondent herein, in a very well-reasoned
opinion, reached the conclusion that the court had jurisdiction over the petitioner and the offense
committed, and sentenced her to pay a fine of P50 and costs, and in case of insolvency to suffer
subsidiary imprisonment. In the course of his opinion, Judge Campbell said:

It is beyond question that by washing garments, articles of clothing, and fabrics in the
Mariquina River, as shown above, the defendant committed a violation of paragraph (f) of
section 4 of Ordinance No. 149 of the city of Manila, in connection with sections 6 and 7
thereof. The Santolan pumping station is a part of the public water supply of the city of
Manila which is used in supplying the inhabitants of the city with water taken from that part of
the Mariquina River during the dry reason, in the waters of which the defendant washed
articles of clothing. According to American authorities, the true meaning of the phrase public
water supply is as follows:

'Public was supply is not limited to water supply owned and controlled by a municipal
corporation, but should be construed as meaning a supply of water for public and domestic
use, furnished or to be furnished from waterworks.' (State vs. Township etc., 52 N. J. Law,
496; 19 Atl. Rep., 975.)

The provisions of Ordinance No. 149 of the city of Manila and the Acts of the Philippine
Commission upon which it is based would be meaningless and almost absurd if made
applicable only to the Santolan pumping station and not to that part of the Mariquina River
immediately above it and from which the said pumping station draws water for the use of the
inhabitants of the city of Manila during the dry season, considering that the policy and
purpose of said ordinance is the protection of the public health in the said city.

According to American decisions on the construction of statutes: `Every statute must be

construed with reference to the object intended to be accomplished by it. In order to
ascertain this object it is proper to consider the occasion and necessity of its enactment, . . . .
and the statute should be given that construction which is best calculated to advance its
object, by suppressing the mischief and securing the benefits intended.' (36 Cyc., 1110,
1111.)

That the Court of First Instance of the city of Manila has jurisdiction to try the offense under
consideration, although committed in the Province of Rizal, by virtue of the provisions of said
ordinance (149), based upon paragraphs (w) and (cc), of section 17 of Act No. 183, and
paragraph (i) f section 3 of Act No. 1150 of the Philippine Commission can not be disputed, if
we simply take into consideration the following rule, which has been pronounced on many
occasions, in relation to the same question, by many courts:

'The corporation boundaries usually mark the limit for the exercise of the police power by the
municipality; but in many instances because essential to the statutory performance of police
functions, and especially for the preservation of the public health, the municipality is granted
police power beyond its boundaries. Thus it has been held that the grant of power to acquire
territory for water supply beyond the limits of the municipality is within the competency of the
legislature, and that the municipality may exercise police power in the protection of the
 territory thus acquired to insure cleanliness, and prevent any business and conduct likely to
corrupt the fountain of water supply for the city.' (28 Cyc., 703, 704.)

After a consideration of the facts and the law applicable thereto and the general power conferred
upon the city of Manila, we are fully persuaded that the municipal court of the city of Manila, as well
as the Court of First Instance of the city of Manila, has jurisdiction to hear and determine the
question presented by the complaint originally presented against the petitioner. Therefore the
petition for the writ of certiorari is hereby denied, with costs. So ordered.

Torres, Moreland, Trent, and Araullo, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-14639            March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.

City Fiscal Diaz for respondents.

MALCOLM, J.:

The annals of juridical history fail to reveal a case quite as remarkable as the one which this
application for habeas corpus submits for decision. While hardly to be expected to be met with in this
modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if there
is kept in the forefront of our minds the basic principles of popular government, and if we give
expression to the paramount purpose for which the courts, as an independent power of such a
government, were constituted. The primary question is — Shall the judiciary permit a government of
the men instead of a government of laws to be set up in the Philippine Islands?

Omitting much extraneous matter, of no moment to these proceedings, but which might prove
profitable reading for other departments of the government, the facts are these: The Mayor of the
city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated
district for women of ill repute, which had been permitted for a number of years in the city of Manila,
closed. Between October 16 and October 25, 1918, the women were kept confined to their houses in
the district by the police. Presumably, during this period, the city authorities quietly perfected
arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers;
with some government office for the use of the coastguard cutters Corregidor and Negros, and with
the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting
pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila,
Justo Lukban, descended upon the houses, hustled some 170 inmates into patrol wagons, and
placed them aboard the steamers that awaited their arrival. The women were given no opportunity to
collect their belongings, and apparently were under the impression that they were being taken to a
police station for an investigation. They had no knowledge that they were destined for a life in
Mindanao. They had not been asked if they wished to depart from that region and had neither
directly nor indirectly given their consent to the deportation. The involuntary guests were received on
board the steamers by a representative of the Bureau of Labor and a detachment of Constabulary
soldiers. The two steamers with their unwilling passengers sailed for Davao during the night of
October 25.

The vessels reached their destination at Davao on October 29. The women were landed and
receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yñigo
and Rafael Castillo. The governor and the hacendero Yñigo, who appear as parties in the case, had
no previous notification that the women were prostitutes who had been expelled from the city of
Manila. The further happenings to these women and the serious charges growing out of alleged ill-
treatment are of public interest, but are not essential to the disposition of this case. Suffice it to say,
generally, that some of the women married, others assumed more or less clandestine relations with
men, others went to work in different capacities, others assumed a life unknown and disappeared,
and a goodly portion found means to return to Manila.

To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to
Davao, the attorney for the relatives and friends of a considerable number of the deportees
presented an application for habeas corpus to a member of the Supreme Court. Subsequently, the
application, through stipulation of the parties, was made to include all of the women who were sent
away from Manila to Davao and, as the same questions concerned them all, the application will be
considered as including them. The application set forth the salient facts, which need not be
repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain
unknown parties. The writ was made returnable before the full court. The city fiscal appeared for the
respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and deportation,
and prayed that the writ should not be granted because the petitioners were not proper parties,
because the action should have been begun in the Court of First Instance for Davao, Department of
Mindanao and Sulu, because the respondents did not have any of the women under their custody or
control, and because their jurisdiction did not extend beyond the boundaries of the city of Manila.
According to an exhibit attached to the answer of the fiscal, the 170 women were destined to be
laborers, at good salaries, on the haciendas of Yñigo and Governor Sales. In open court, the fiscal
admitted, in answer to question of a member of the court, that these women had been sent out of
Manila without their consent. The court awarded the writ, in an order of November 4, that directed
Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila,
Francisco Sales, governor of the province of Davao, and Feliciano Yñigo, an hacendero of Davao, to
bring before the court the persons therein named, alleged to be deprived of their liberty, on
December 2, 1918.

Before the date mentioned, seven of the women had returned to Manila at their own expense. On
motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme Court
sitting as commissioners. On the day named in the order, December 2nd, 1918, none of the persons
in whose behalf the writ was issued were produced in court by the respondents. It has been shown
that three of those who had been able to come back to Manila through their own efforts, were
notified by the police and the secret service to appear before the court. The fiscal appeared,
repeated the facts more comprehensively, reiterated the stand taken by him when pleading to the
original petition copied a telegram from the Mayor of the city of Manila to the provincial governor of
Davao and the answer thereto, and telegrams that had passed between the Director of Labor and
the attorney for that Bureau then in Davao, and offered certain affidavits showing that the women
were contained with their life in Mindanao and did not wish to return to Manila. Respondents Sales
answered alleging that it was not possible to fulfill the order of the Supreme Court because the
women had never been under his control, because they were at liberty in the Province of Davao, and
because they had married or signed contracts as laborers. Respondent Yñigo answered alleging
that he did not have any of the women under his control and that therefore it was impossible for him
to obey the mandate. The court, after due deliberation, on December 10, 1918, promulgated a
second order, which related that the respondents had not complied with the original order to the
satisfaction of the court nor explained their failure to do so, and therefore directed that those of the
women not in Manila be brought before the court by respondents Lukban, Hohmann, Sales, and
Yñigo on January 13, 1919, unless the women should, in written statements voluntarily made before
the judge of first instance of Davao or the clerk of that court, renounce the right, or unless the
respondents should demonstrate some other legal motives that made compliance impossible. It was
further stated that the question of whether the respondents were in contempt of court would later be
decided and the reasons for the order announced in the final decision.
Before January 13, 1919, further testimony including that of a number of the women, of certain
detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of the
Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao acting
in the same capacity. On January 13, 1919, the respondents technically presented before the Court
the women who had returned to the city through their own efforts and eight others who had been
brought to Manila by the respondents. Attorneys for the respondents, by their returns, once again
recounted the facts and further endeavored to account for all of the persons involved in the habeas
corpus. In substance, it was stated that the respondents, through their representatives and agents,
had succeeded in bringing from Davao with their consent eight women; that eighty-one women were
found in Davao who, on notice that if they desired they could return to Manila, transportation fee,
renounced the right through sworn statements; that fifty-nine had already returned to Manila by other
means, and that despite all efforts to find them twenty-six could not be located. Both counsel for
petitioners and the city fiscal were permitted to submit memoranda. The first formally asked the court
to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of
Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila,
Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor,
and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that
the replica al memorandum de los recurridos, (reply to respondents' memorandum) dated January
25, 1919, be struck from the record.

In the second order, the court promised to give the reasons for granting the writ of habeas corpus in
the final decision. We will now proceed to do so.

One fact, and one fact only, need be recalled — these one hundred and seventy women were
isolated from society, and then at night, without their consent and without any opportunity to consult
with friends or to defend their rights, were forcibly hustled on board steamers for transportation to
regions unknown. Despite the feeble attempt to prove that the women left voluntarily and gladly, that
such was not the case is shown by the mere fact that the presence of the police and the
constabulary was deemed necessary and that these officers of the law chose the shades of night to
cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted
by the respondents.

With this situation, a court would next expect to resolve the question — By authority of what law did
the Mayor and the Chief of Police presume to act in deporting by duress these persons from Manila
to another distant locality within the Philippine Islands? We turn to the statutes and we find —

Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress.
The Governor-General can order the eviction of undesirable aliens after a hearing from the Islands.
Act No. 519 of the Philippine Commission and section 733 of the Revised Ordinances of the city of
Manila provide for the conviction and punishment by a court of justice of any person who is a
common prostitute. Act No. 899 authorizes the return of any citizen of the United States, who may
have been convicted of vagrancy, to the homeland. New York and other States have statutes
providing for the commitment to the House of Refuge of women convicted of being common
prostitutes. Always a law! Even when the health authorities compel vaccination, or establish a
quarantine, or place a leprous person in the Culion leper colony, it is done pursuant to some law or
order. But one can search in vain for any law, order, or regulation, which even hints at the right of the
Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine
Islands — and these women despite their being in a sense lepers of society are nevertheless not
chattels but Philippine citizens protected by the same constitutional guaranties as are other
citizens — to change their domicile from Manila to another locality. On the contrary, Philippine penal
law specifically punishes any public officer who, not being expressly authorized by law or regulation,
compels any person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be
found in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of
abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as
not even to require a constitutional sanction. Even the Governor-General of the Philippine Islands,
even the President of the United States, who has often been said to exercise more power than any
king or potentate, has no such arbitrary prerogative, either inherent or express. Much less, therefore,
has the executive of a municipality, who acts within a sphere of delegated powers. If the mayor and
the chief of police could, at their mere behest or even for the most praiseworthy of motives, render
the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other
municipalities of the Philippines have the same privilege. If these officials can take to themselves
such power, then any other official can do the same. And if any official can exercise the power, then
all persons would have just as much right to do so. And if a prostitute could be sent against her
wishes and under no law from one locality to another within the country, then officialdom can hold
the same club over the head of any citizen.

Law defines power. Centuries ago Magna Charta decreed that — "No freeman shall be taken, or
imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or
any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his
peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either
justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no
matter how high, is above the law. The courts are the forum which functionate to safeguard
individual liberty and to punish official transgressors. "The law," said Justice Miller, delivering the
opinion of the Supreme Court of the United States, "is the only supreme power in our system of
government, and every man who by accepting office participates in its functions is only the more
strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the
exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea,"
said Justice Matthews of the same high tribunal in another case, "that one man may be compelled to
hold his life, or the means of living, or any material right essential to the enjoyment of life, at the
mere will of another, seems to be intolerable in any country where freedom prevails, as being the
essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the
motive in issuing the writ of habeas corpus, and makes clear why we said in the very beginning that
the primary question was whether the courts should permit a government of men or a government of
laws to be established in the Philippine Islands.

What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are
three: (1) Civil action; (2) criminal action, and (3) habeas corpus.

The first is an optional but rather slow process by which the aggrieved party may recoup money
damages. It may still rest with the parties in interest to pursue such an action, but it was never
intended effectively and promptly to meet any such situation as that now before us.

As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:

Any public officer not thereunto authorized by law or by regulations of a general character in
force in the Philippines who shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall be
punished by a fine of not less than three hundred and twenty-five and not more than three
thousand two hundred and fifty pesetas.

Any public officer not thereunto expressly authorized by law or by regulation of a general
character in force in the Philippines who shall compel any person to change his domicile or
 residence shall suffer the penalty of destierro and a fine of not less than six hundred and
twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.)

We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that
any public officer has violated this provision of law, these prosecutors will institute and press a
criminal prosecution just as vigorously as they have defended the same official in this action.
Nevertheless, that the act may be a crime and that the persons guilty thereof can be proceeded
against, is no bar to the instant proceedings. To quote the words of Judge Cooley in a case which
will later be referred to — "It would be a monstrous anomaly in the law if to an application by one
unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the confinement
was a crime, and therefore might be continued indefinitely until the guilty party was tried and
punished therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15
Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and effectual
remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of
personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose
principal purpose is to set the individual at liberty.

Granted that habeas corpus is the proper remedy, respondents have raised three specific objections
to its issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners,
(2) that the Supreme Court should not a assume jurisdiction, and (3) that the person in question are
not restrained of their liberty by respondents. It was finally suggested that the jurisdiction of the
Mayor and the chief of police of the city of Manila only extends to the city limits and that perforce
they could not bring the women from Davao.

The first defense was not presented with any vigor by counsel. The petitioners were relatives and
friends of the deportees. The way the expulsion was conducted by the city officials made it
impossible for the women to sign a petition for habeas corpus. It was consequently proper for the
writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil
Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it the duty of a
court or judge to grant a writ of habeas corpus if there is evidence that within the court's jurisdiction a
person is unjustly imprisoned or restrained of his liberty, though no application be made therefor.
(Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.

The fiscal next contended that the writ should have been asked for in the Court of First Instance of
Davao or should have been made returnable before that court. It is a general rule of good practice
that, to avoid unnecessary expense and inconvenience, petitions for habeas corpus should be
presented to the nearest judge of the court of first instance. But this is not a hard and fast rule. The
writ of habeas corpus may be granted by the Supreme Court or any judge thereof enforcible
anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure,
sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior
court rests in the discretion of the Supreme Court and is dependent on the particular circumstances.
In this instance it was not shown that the Court of First Instance of Davao was in session, or that the
women had any means by which to advance their plea before that court. On the other hand, it was
shown that the petitioners with their attorneys, and the two original respondents with their attorney,
were in Manila; it was shown that the case involved parties situated in different parts of the Islands; it
was shown that the women might still be imprisoned or restrained of their liberty; and it was shown
that if the writ was to accomplish its purpose, it must be taken cognizance of and decided
immediately by the appellate court. The failure of the superior court to consider the application and
then to grant the writ would have amounted to a denial of the benefits of the writ.

The last argument of the fiscal is more plausible and more difficult to meet. When the writ was
prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the
women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police did
not extend beyond the city limits. At first blush, this is a tenable position. On closer examination,
acceptance of such dictum is found to be perversive of the first principles of the writ of habeas
corpus.

A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential
object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint
as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient. The forcible taking of these women from
Manila by officials of that city, who handed them over to other parties, who deposited them in a
distant region, deprived these women of freedom of locomotion just as effectively as if they had been
imprisoned. Placed in Davao without either money or personal belongings, they were prevented from
exercising the liberty of going when and where they pleased. The restraint of liberty which began in
Manila continued until the aggrieved parties were returned to Manila and released or until they freely
and truly waived his right.

Consider for a moment what an agreement with such a defense would mean. The chief executive of
any municipality in the Philippines could forcibly and illegally take a private citizen and place him
beyond the boundaries of the municipality, and then, when called upon to defend his official action,
could calmly fold his hands and claim that the person was under no restraint and that he, the official,
had no jurisdiction over this other municipality. We believe the true principle should be that, if the
respondent is within the jurisdiction of the court and has it in his power to obey the order of the court
and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party
to whom the writ is addressed has illegally parted with the custody of a person before the application
for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting
under no authority of law, could deport these women from the city of Manila to Davao, the same
officials must necessarily have the same means to return them from Davao to Manila. The
respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her
liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while
the person who has lost her birthright of liberty has no effective recourse. The great writ of liberty
may not thus be easily evaded.

It must be that some such question has heretofore been presented to the courts for decision.
Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any
analogous case. Certain decisions of respectable courts are however very persuasive in nature.

A question came before the Supreme Court of the State of Michigan at an early date as to whether
or not a writ of habeas corpus would issue from the Supreme Court to a person within the jurisdiction
of the State to bring into the State a minor child under guardianship in the State, who has been and
continues to be detained in another State. The membership of the Michigan Supreme Court at this
time was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy,
justices. On the question presented the court was equally divided. Campbell, J., with whom
concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most
distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the
writ should issue. Since the opinion of Justice Campbell was predicated to a large extent on his
conception of the English decisions, and since, as will hereafter appear, the English courts have
taken a contrary view, only the following eloquent passages from the opinion of Justice Cooley are
quoted:

I have not yet seen sufficient reason to doubt the power of this court to issue the present writ
on the petition which was laid before us. . . .
 It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half
have been expended upon the Magna Charta, and rivers of blood shed for its establishment;
after its many confirmations, until Coke could declare in his speech on the petition of right
that "Magna Charta was such a fellow that he will have no sovereign," and after the
extension of its benefits and securities by the petition of right, bill of rights and habeas
corpus acts, it should now be discovered that evasion of that great clause for the protection
of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed
here. If it is so, it is important that it be determined without delay, that the legislature may
apply the proper remedy, as I can not doubt they would, on the subject being brought to their
notice. . . .

The second proposition — that the statutory provisions are confined to the case of
imprisonment within the state — seems to me to be based upon a misconception as to the
source of our jurisdiction. It was never the case in England that the court of king's bench
derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not
passed to give the right, but to compel the observance of rights which existed. . . .

The important fact to be observed in regard to the mode of procedure upon this writ is, that it
is directed to and served upon, not the person confined, but his jailor. It does not reach the
former except through the latter. The officer or person who serves it does not unbar the
prison doors, and set the prisoner free, but the court relieves him by compelling the
oppressor to release his constraint. The whole force of the writ is spent upon the respondent,
and if he fails to obey it, the means to be resorted to for the purposes of compulsion are fine
and imprisonment. This is the ordinary mode of affording relief, and if any other means are
resorted to, they are only auxiliary to those which are usual. The place of confinement is,
therefore, not important to the relief, if the guilty party is within reach of process, so that by
the power of the court he can be compelled to release his grasp. The difficulty of affording
redress is not increased by the confinement being beyond the limits of the state, except as
greater distance may affect it. The important question is, where the power of control
exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich.,
416.)

The opinion of Judge Cooley has since been accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex
parte Young [1892], 50 Fed., 526.)

The English courts have given careful consideration to the subject. Thus, a child had been taken out
of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division
upon the application of the mother and her husband directing the defendant to produce the child.
The judge at chambers gave defendant until a certain date to produce the child, but he did not do so.
His return stated that the child before the issuance of the writ had been handed over by him to
another; that it was no longer in his custody or control, and that it was impossible for him to obey the
writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said:

A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ
commanded the defendant to have the body of the child before a judge in chambers at the
Royal Courts of Justice immediately after the receipt of the writ, together with the cause of
her being taken and detained. That is a command to bring the child before the judge and
must be obeyed, unless some lawful reason can be shown to excuse the nonproduction of
the child. If it could be shown that by reason of his having lawfully parted with the possession
of the child before the issuing of the writ, the defendant had no longer power to produce the
child, that might be an answer; but in the absence of any lawful reason he is bound to
 produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ
without lawful excuse. Many efforts have been made in argument to shift the question of
contempt to some anterior period for the purpose of showing that what was done at some
time prior to the writ cannot be a contempt. But the question is not as to what was done
before the issue of the writ. The question is whether there has been a contempt in
disobeying the writ it was issued by not producing the child in obedience to its commands.
(The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case
of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's
Case [1890], 24 Q. B. D., 283.)

A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the
defendant to have before the circuit court of the District of Columbia three colored persons, with the
cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the
negroes as slaves in the city of Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas corpus, and that they were then beyond
his control and out of his custody. The evidence tended to show that Davis had removed the
negroes because he suspected they would apply for a writ of habeas corpus. The court held the
return to be evasive and insufficient, and that Davis was bound to produce the negroes, and Davis
being present in court, and refusing to produce them, ordered that he be committed to the custody of
the marshall until he should produce the negroes, or be otherwise discharged in due course of law.
The court afterwards ordered that Davis be released upon the production of two of the negroes, for
one of the negroes had run away and been lodged in jail in Maryland. Davis produced the two
negroes on the last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas.
No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the defense offered by the
respondents constituted a legitimate bar to the granting of the writ of habeas corpus.

There remains to be considered whether the respondent complied with the two orders of the
Supreme Court awarding the writ of habeas corpus, and if it be found that they did not, whether the
contempt should be punished or be taken as purged.

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yñigo to present the persons named in the writ before the court on December 2, 1918. The
order was dated November 4, 1918. The respondents were thus given ample time, practically one
month, to comply with the writ. As far as the record discloses, the Mayor of the city of Manila waited
until the 21st of November before sending a telegram to the provincial governor of Davao. According
to the response of the attorney for the Bureau of Labor to the telegram of his chief, there were then
in Davao women who desired to return to Manila, but who should not be permitted to do so because
of having contracted debts. The half-hearted effort naturally resulted in none of the parties in
question being brought before the court on the day named.

For the respondents to have fulfilled the court's order, three optional courses were open: (1) They
could have produced the bodies of the persons according to the command of the writ; or (2) they
could have shown by affidavit that on account of sickness or infirmity those persons could not safely
be brought before the court; or (3) they could have presented affidavits to show that the parties in
question or their attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.)
They did not produce the bodies of the persons in whose behalf the writ was granted; they did not
show impossibility of performance; and they did not present writings that waived the right to be
present by those interested. Instead a few stereotyped affidavits purporting to show that the women
were contended with their life in Davao, some of which have since been repudiated by the signers,
were appended to the return. That through ordinary diligence a considerable number of the women,
at least sixty, could have been brought back to Manila is demonstrated to be found in the
municipality of Davao, and that about this number either returned at their own expense or were
produced at the second hearing by the respondents.

The court, at the time the return to its first order was made, would have been warranted summarily in
finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed the
order. Their excuses for the non-production of the persons were far from sufficient. The, authorities
cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas
corpus writ must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an
earlier decision of the Court, said: "We thought that, having brought about that state of things by his
own illegal act, he must take the consequences; and we said that he was bound to use every effort
to get the child back; that he must do much more than write letters for the purpose; that he must
advertise in America, and even if necessary himself go after the child, and do everything that mortal
man could do in the matter; and that the court would only accept clear proof of an absolute
impossibility by way of excuse." In other words, the return did not show that every possible effort to
produce the women was made by the respondents. That the court forebore at this time to take
drastic action was because it did not wish to see presented to the public gaze the spectacle of a
clash between executive officials and the judiciary, and because it desired to give the respondents
another chance to demonstrate their good faith and to mitigate their wrong.

In response to the second order of the court, the respondents appear to have become more zealous
and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and counter-charges in such a bitterly
contested case are to be expected, and while a critical reading of the record might reveal a failure of
literal fulfillment with our mandate, we come to conclude that there is a substantial compliance with
it. Our finding to this effect may be influenced somewhat by our sincere desire to see this unhappy
incident finally closed. If any wrong is now being perpetrated in Davao, it should receive an
executive investigation. If any particular individual is still restrained of her liberty, it can be made the
object of separate habeas corpus proceedings.

Since the writ has already been granted, and since we find a substantial compliance with it, nothing
further in this connection remains to be done.

The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city
of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando
Ordax, members of the police force of the city of Manila, Modesto Joaquin, the attorney for the
Bureau of Labor, Feliciano Yñigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of
Manila.

The power to punish for contempt of court should be exercised on the preservative and not on the
vindictive principle. Only occasionally should the court invoke its inherent power in order to retain
that respect without which the administration of justice must falter or fail. Nevertheless when one is
commanded to produce a certain person and does not do so, and does not offer a valid excuse, a
court must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must
order him either imprisoned or fined. An officer's failure to produce the body of a person in
obedience to a writ of habeas corpus when he has power to do so, is a contempt committed in the
face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)

With all the facts and circumstances in mind, and with judicial regard for human imperfections, we
cannot say that any of the respondents, with the possible exception of the first named, has flatly
disobeyed the court by acting in opposition to its authority. Respondents Hohmann, Rodriguez,
Ordax, and Joaquin only followed the orders of their chiefs, and while, under the law of public
officers, this does not exonerate them entirely, it is nevertheless a powerful mitigating circumstance.
The hacendero Yñigo appears to have been drawn into the case through a misconstruction by
counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done no
more than to fulfill his duty as the legal representative of the city government. Finding him innocent
of any disrespect to the court, his counter-motion to strike from the record the memorandum of
attorney for the petitioners, which brings him into this undesirable position, must be granted. When
all is said and done, as far as this record discloses, the official who was primarily responsible for the
unlawful deportation, who ordered the police to accomplish the same, who made arrangements for
the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and
who later, as the head of the city government, had it within his power to facilitate the return of the
unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to
suppress the social evil was commendable. His methods were unlawful. His regard for the writ
of habeas corpus issued by the court was only tardily and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which
relates to the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban
to forfeit to the parties aggrieved as much as P400 each, which would reach to many thousands of
pesos, and in addition to deal with him as for a contempt. Some members of the court are inclined to
this stern view. It would also be possible to find that since respondent Lukban did comply
substantially with the second order of the court, he has purged his contempt of the first order. Some
members of the court are inclined to this merciful view. Between the two extremes appears to lie the
correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to
belittle and embarrass the administration of justice to such an extent that his later activity may be
considered only as extenuating his conduct. A nominal fine will at once command such respect
without being unduly oppressive — such an amount is P100.

In resume — as before stated, no further action on the writ of habeas corpus is necessary. The
respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in contempt
of court. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of
the Supreme Court within five days the sum of one hundred pesos (P100). The motion of the fiscal
of the city of Manila to strike from the record the Replica al Memorandum de los Recurridos of
January 25, 1919, is granted. Costs shall be taxed against respondents. So ordered.

In concluding this tedious and disagreeable task, may we not be permitted to express the hope that
this decision may serve to bulwark the fortifications of an orderly government of laws and to protect
individual liberty from illegal encroachment.

Arellano, C.J., Avanceña and Moir, JJ., concur.

Johnson, and Street, JJ., concur in the result.

Separate Opinions

TORRES, J., dissenting:

The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas
corpus proceeding against Justo Lukban, the mayor of this city.

There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great
number of women of various ages, inmates of the houses of prostitution situated in Gardenia Street,
district of Sampaloc, to change their residence.
We know no express law, regulation, or ordinance which clearly prohibits the opening of public
houses of prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when more
than one hundred and fifty women were assembled and placed aboard a steamer and transported to
Davao, considering that the existence of the said houses of prostitution has been tolerated for so
long a time, it is undeniable that the mayor of the city, in proceeding in the manner shown, acted
without authority of any legal provision which constitutes an exception to the laws guaranteeing the
liberty and the individual rights of the residents of the city of Manila.

We do not believe in the pomp and obstentation of force displayed by the police in complying with
the order of the mayor of the city; neither do we believe in the necessity of taking them to the distant
district of Davao. The said governmental authority, in carrying out his intention to suppress the
segregated district or the community formed by those women in Gardenia Street, could have obliged
the said women to return to their former residences in this city or in the provinces, without the
necessity of transporting them to Mindanao; hence the said official is obliged to bring back the
women who are still in Davao so that they may return to the places in which they lived prior to their
becoming inmates of certain houses in Gardenia Street.

As regards the manner whereby the mayor complied with the orders of this court, we do not find any
apparent disobedience and marked absence of respect in the steps taken by the mayor of the city
and his subordinates, if we take into account the difficulties encountered in bringing the said women
who were free at Davao and presenting them before this court within the time fixed, inasmuch as it
does not appear that the said women were living together in a given place. It was not because they
were really detained, but because on the first days there were no houses in which they could live
with a relative independent from one another, and as a proof that they were free a number of them
returned to Manila and the others succeeded in living separate from their companions who continued
living together.

To determine whether or not the mayor acted with a good purpose and legal object and whether he
has acted in good or bad faith in proceeding to dissolve the said community of prostitutes and to
oblige them to change their domicile, it is necessary to consider not only the rights and interests of
the said women and especially of the patrons who have been directing and conducting such a
reproachable enterprise and shameful business in one of the suburbs of this city, but also the rights
and interests of the very numerous people of Manila where relatively a few transients accidentally
and for some days reside, the inhabitants thereof being more than three hundred thousand
(300,000) who can not, with indifference and without repugnance, live in the same place with so
many unfortunate women dedicated to prostitution.

If the material and moral interests of the community as well as the demands of social morality are to
be taken into account, it is not possible to sustain that it is legal and permissible to establish a house
of pandering or prostitution in the midst of an enlightened population, for, although there were no
positive laws prohibiting the existence of such houses within a district of Manila, the dictates of
common sense and dictates of conscience of its inhabitants are sufficient to warrant the public
administration, acting correctly, in exercising the inevitable duty of ordering the closing and
abandonment of a house of prostitution ostensibly open to the public, and of obliging the inmates
thereof to leave it, although such a house is inhabited by its true owner who invokes in his behalf the
protection of the constitutional law guaranteeing his liberty, his individual rights, and his right to
property.

A cholera patient, a leper, or any other person affected by a known contagious disease cannot
invoke in his favor the constitutional law which guarantees his liberty and individual rights, should the
administrative authority order his hospitalization, reclusion, or concentration in a certain island or
distant point in order to free from contagious the great majority of the inhabitants of the country who
fortunately do not have such diseases. The same reasons exist or stand good with respect to the
unfortunate women dedicated to prostitution, and such reasons become stronger because the first
persons named have contracted their diseases without their knowledge and even against their will,
whereas the unfortunate prostitutes voluntarily adopted such manner of living and spontaneously
accepted all its consequences, knowing positively that their constant intercourse with men of all
classes, notwithstanding the cleanliness and precaution which they are wont to adopt, gives way to
the spread or multiplication of the disease known as syphilis, a venereal disease, which, although it
constitutes a secret disease among men and women, is still prejudicial to the human species in the
same degree, scope, and seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and other
contagious diseases which produce great mortality and very serious prejudice to poor humanity.

If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give
her sufficient remuneration for her subsistence, prefers to put herself under the will of another
woman who is usually older than she is and who is the manager or owner of a house of prostitution,
or spontaneously dedicates herself to this shameful profession, it is undeniable that she voluntarily
and with her own knowledge renounces her liberty and individual rights guaranteed by the
Constitution, because it is evident that she can not join the society of decent women nor can she
expect to get the same respect that is due to the latter, nor is it possible for her to live within the
community or society with the same liberty and rights enjoyed by every citizen. Considering her
dishonorable conduct and life, she should therefore be comprised within that class which is always
subject to the police and sanitary regulations conducive to the maintenance of public decency and
morality and to the conservation of public health, and for this reason it should not permitted that the
unfortunate women dedicated to prostitution evade the just orders and resolutions adopted by the
administrative authorities.

It is regrettable that unnecessary rigor was employed against the said poor women, but those who
have been worrying so much about the prejudice resulting from a governmental measure, which
being a very drastic remedy may be considered arbitrary, have failed to consider with due reflection
the interests of the inhabitants of this city in general and particularly the duties and responsibilities
weighing upon the authorities which administer and govern it; they have forgotten that many of those
who criticize and censure the mayor are fathers of families and are in duty bound to take care of
their children.

For the foregoing reasons, we reach the conclusion that when the petitioners, because of the
abnormal life they assumed, were obliged to change their residence not by a private citizen but by
the mayor of the city who is directly responsible for the conservation of public health and social
morality, the latter could take the step he had taken, availing himself of the services of the police in
good faith and only with the purpose of protecting the immense majority of the population from the
social evils and diseases which the houses of prostitution situated in Gardenia Street have been
producing, which houses have been constituting for years a true center for the propagation of
general diseases and other evils derived therefrom. Hence, in ordering the dissolution and
abandonment of the said houses of prostitution and the change of the domicile of the
inmates thereof, the mayor did not in bad faith violate the constitutional laws which
guarantees the liberty and the individual rights of every Filipino, inasmuch as the women
petitioners do not absolutely enjoy the said liberty and rights, the exercise of which they
have voluntarily renounced in exchange for the free practice of their shameful profession.

In very highly advanced and civilized countries, there have been adopted by the administrative
authorities similar measures, more or less rigorous, respecting prostitutes, considering them
prejudicial to the people, although it is true that in the execution of such measures more humane and
less drastic procedures, fortiter in re et suaviter in forma, have been adopted, but such procedures
have always had in view the ultimate object of the Government for the sake of the community, that
is, putting an end to the living together in a certain place of women dedicated to prostitution and
changing their domicile, with the problematical hope that they adopt another manner of living which
is better and more useful to themselves and to society.

In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is
obliged to take back and restore the said women who are at present found in Davao, and who desire
to return to their former respective residences, not in Gardenia Street, Sampaloc District, with the
exception of the prostitutes who should expressly make known to the clerk of court their preference
to reside in Davao, which manifestation must be made under oath. This resolution must be
transmitted to the mayor within the shortest time possible for its due compliance. The costs shall be
charged de officio.

ARAULLO, J., dissenting in part:

I regret to dissent from the respectable opinion of the majority in the decision rendered in these
proceedings, with respect to the finding as to the importance of the contempt committed, according
to the same decision, by Justo Lukban, Mayor of the city of Manila, and the consequent imposition
upon him of a nominal fine of P100.

In the said decision, it is said:

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales,
and Feliciano Yñigo to present the persons named in the writ before the court on December
2, 1918. The order was dated November 4, 1918. The respondents were thus given ample
time, practically one month, to comply with the writ. As far as the record disclosed, the mayor
of the city of Manila waited until the 21st of November before sending a telegram to the
provincial governor of Davao. According to the response of the Attorney for the Bureau of
Labor to the telegram of his chief, there were then in Davao women who desired to return to
Manila, but who should not be permitted to do so because of having contracted debts. The
half-hearted effort naturally resulted in none of the parties in question being brought before
the court on the day named.

In accordance with section 87 of General Orders No. 58, as said in the same decision, the
respondents, for the purpose of complying with the order of the court, could have, (1) produced the
bodies of the persons according to the command of the writ; (2) shown by affidavits that on account
of sickness or infirmity the said women could not safely be brought before this court; and (3)
presented affidavits to show that the parties in question or their lawyers waived their right to be
present. According to the same decision, the said respondents ". . . did not produce the bodies of the
persons in whose behalf the writ was granted; did not show impossibility of performance; and did not
present writings, that waived the right to be present by those interested. Instead, a few stereotyped
affidavits purporting to show that the women were contented with their life in Davao, some of which
have since been repudiated by the signers, were appended to the return. That through ordinary
diligence a considerable number of the women, at least sixty, could have been brought back to
Manila is demonstrated by the fact that during this time they were easily to be found in the
municipality of Davao, and that about this number either returned at their own expense or were
produced at the second hearing by the respondents."

The majority opinion also recognized that, "That court, at the time the return to its first order was
made, would have been warranted summarily in finding the respondent guilty of contempt of court,
and in sending them to jail until they obeyed the order. Their excuses for the non production of the
persons were far from sufficient." To corroborate this, the majority decision cites the case of the
Queen vs. Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and added "that the return did not
show that every possible effort to produce the women was made by the respondents."

When the said return by the respondents was made to this court in banc and the case discussed, my
opinion was that Mayor Lukban should have been immediately punished for contempt. Nevertheless,
a second order referred to in the decision was issued on December 10, 1918, requiring the
respondents to produce before the court, on January 13, 1919, the women who were not in Manila,
unless they could show that it was impossible to comply with the said order on the two grounds
previously mentioned. With respect to this second order, the same decision has the following to say:

In response to the second order of the court, the respondents appear to have become more
zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards
were posted, the constabulary and the municipal police joined in rounding up the women,
and a steamer with free transportation to Manila was provided. While charges and
countercharges in such a bitterly contested case are to be expected, and while a critical
reading of the record might reveal a failure of literal fulfillment with our mandate, we come to
conclude that there is a substantial compliance with it.

I do not agree to this conclusion.

The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the
issuance of the first order on November 4th till the 21st of the same month before taking the first
step for compliance with the mandate of the said order; he waited till the 21st of November, as the
decision says, before he sent a telegram to the provincial governor o f Davao and naturally this half-
hearted effort, as is so qualified in the decision, resulted in that none of the women appeared before
this court on December 2nd. Thus, the said order was not complied with, and in addition to this
noncompliance there was the circumstances that seven of the said women having returned to Manila
at their own expense before the said second day of December and being in the antechamber of the
court room, which fact was known to Chief of Police Hohmann, who was then present at the trial and
to the attorney for the respondents, were not produced before the court by the respondents nor did
the latter show any effort to present them, in spite of the fact that their attention was called to this
particular by the undersigned.

The result of the said second order was, as is said in the same decision, that the respondents, on
January 13th, the day fixed for the protection of the women before this court, presented technically
the seven (7) women above-mentioned who had returned to the city at their own expense and the
other eight (8) women whom the respondents themselves brought to Manila, alleging moreover that
their agents and subordinates succeeded in bringing them from Davao with their consent; that in
Davao they found eighty-one (81) women who, when asked if they desired to return to Manila with
free transportation, renounced such a right, as is shown in the affidavits presented by the
respondents to this effect; that, through other means, fifty-nine (59) women have already returned to
Manila, but notwithstanding the efforts made to find them it was not possible to locate the
whereabouts of twenty-six (26) of them. Thus, in short, out of the one hundred and eighty-one (181)
women who, as has been previously said, have been illegally detained by Mayor Lukban and Chief
of Police Hohmann and transported to Davao against their will, only eight (8) have been brought to
Manila and presented before this court by the respondents in compliance with the said two orders.
Fifty-nine (59) of them have returned to Manila through other means not furnished by the
respondents, twenty-six of whom were brought by the attorney for the petitioners, Mendoza, on his
return from Davao. The said attorney paid out of his own pocket the transportation of the said
twenty-six women. Adding to these numbers the other seven (7) women who returned to this city at
their own expense before January 13 we have a total of sixty-six (66), which evidently proves, on the
one hand, the falsity of the allegation by the respondents in their first answer at the trial of December
2, 1918, giving as one of the reasons for their inability to present any of the said women that the
latter were content with their life in Mindanao and did not desire to return to Manila; and, on the other
hand, that the respondents, especially the first named, that is Mayor Justo Lukban, who acted as
chief and principal in all that refers to the compliance with the orders issued by this court, could bring
before December 2nd, the date of the first hearing of the case, as well as before January 13th, the
date fixed for the compliance with the second order, if not the seventy-four (74) women already
indicated, at least a great number of them, or at least sixty (60) of them, as is said in the majority
decision, inasmuch as the said respondent could count upon the aid of the Constabulary forces and
the municipal police, and had transportation facilities for the purpose. But the said respondent mayor
brought only eight (8) of the women before this court on January 13th. This fact can not, in my
judgment, with due respect to the majority opinion, justify the conclusion that the said respondent
has substantially complied with the second order of this court, but on the other hand demonstrates
that he had not complied with the mandate of this court in its first and second orders; that neither of
the said orders has been complied with by the respondent Justo Lukban, Mayor of the city of Manila,
who is, according to the majority decision, principally responsible for the contempt, to which
conclusion I agree. The conduct of the said respondent with respect to the second order confirms
the contempt committed by non-compliance with the first order and constitutes a new contempt
because of non-compliance with the second, because of the production of only eight (8) of the one
hundred and eighty-one (181) women who have been illegally detained by virtue of his order and
transported to Davao against their will, committing the twenty-six (26) women who could not be
found in Davao, demonstrates in my opinion that, notwithstanding the nature of the case which deals
with the remedy of habeas corpus, presented by the petitioners and involving the question whether
they should or not be granted their liberty, the respondent has not given due attention to the same
nor has he made any effort to comply with the second order. In other words, he has disobeyed the
said two orders; has despised the authority of this court; has failed to give the respect due to justice;
and lastly, he has created and placed obstacles to the administration of justice in the said habeas
corpus proceeding, thus preventing, because of his notorious disobedience, the resolution of the
said proceeding with the promptness which the nature of the same required.

Contempt of court has been defined as a despising of the authority, justice, or dignity of the
court; and he is guilty of contempt whose conduct is such as tends to bring the authority and
administration of the law into disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)

It is a general principle that a disobedience of any valid order of the court constitutes
contempt, unless the defendant is unable to comply therewith. (Ruling Case Law, vol. 6, p.
502.)

It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or

attempt to obstruct the service of legal process. If a person hinders or prevents the service of
process by deceiving the officer or circumventing him by any means, the result is the same
as though he had obstructed by some direct means. (Ruling Case Law, vol. 6, p. 503.)

While it may seem somewhat incongruous to speak, as the courts often do, of enforcing
respect for the law and for the means it has provided in civilized communities for establishing
justice, since true respect never comes in that way, it is apparent nevertheless that the
power to enforce decorum in the courts and obedience to their orders and just measures is
so essentially a part of the life of the courts that it would be difficult to conceive of their
usefulness or efficiency as existing without it. Therefore it may be said generally that where
due respect for the courts as ministers of the law is wanting, a necessity arises for the use of
compulsion, not, however, so much to excite individual respect as to compel obedience or to
remove an unlawful or unwarranted interference with the administration of justice. (Ruling
Case Law, vol. 6, p. 487.)
 The power to punish for contempt is as old as the law itself, and has been exercised from the
earliest times. In England it has been exerted when the contempt consisted of scandalizing
the sovereign or his ministers, the law-making power, or the courts. In the American states
the power to punish for contempt, so far as the executive department and the ministers of
state are concerned, and in some degree so far as the legislative department is concerned,
is obsolete, but it has been almost universally preserved so far as regards the judicial
department. The power which the courts have of vindicating their own authority is a
necessary incident to every court of justice, whether of record or not; and the authority for
issuing attachments in a proper case for contempts out of court, it has been declared, stands
upon the same immemorial usage as supports the whole fabric of the common law. . . .
(Ruling Case Law, vol. 6, p. 489.)

The undisputed importance of the orders of this court which have been disobeyed; the loss of the
prestige of the authority of the court which issued the said orders, which loss might have been
caused by noncompliance with the same orders on the part of the respondent Justo Lukban; the
damages which might have been suffered by some of the women illegally detained, in view of the
fact that they were not brought to Manila by the respondents to be presented before the court and of
the further fact that some of them were obliged to come to this city at their own expense while still
others were brought to Manila by the attorney for the petitioners, who paid out of his own pocket the
transportation of the said women; and the delay which was necessarily incurred in the resolution of
the petition interposed by the said petitioners and which was due to the fact that the said orders
were not opportunately and duly obeyed and complied with, are circumstances which should be
taken into account in imposing upon the respondent Justo Lukban the penalty corresponding to the
contempt committed by him, a penalty which, according to section 236 of the Code of Civil
Procedure, should consist of a fine not exceeding P1,000 or imprisonment not exceeding months, or
both such fine and imprisonment. In the imposition of the penalty, there should also be taken into
consideration the special circumstance that the contempt was committed by a public authority, the
mayor of the city of Manila, the first executive authority of the city, and consequently, the person
obliged to be the first in giving an example of obedience and respect for the laws and the valid and
just orders of the duly constituted authorities as well as for the orders emanating from the courts of
justice, and in giving help and aid to the said courts in order that justice may be administered with
promptness and rectitude.

I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed
upon the respondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be
charged against him. Lastly, I believe it to be my duty to state here that the records of this
proceeding should be transmitted to the Attorney-General in order that, after a study of the same
and deduction from the testimony which he may deem necessary, and the proper transmittal of the
same to the fiscal of the city of Manila and to the provincial fiscal of Davao, both the latter shall
present the corresponding informations for the prosecution and punishment of the crimes which
have been committed on the occasion when the illegal detention of the women was carried into
effect by Mayor Justo Lukban of the city of Manila and Chief of Police Anton Hohmann, and also of
those crimes committed by reason of the same detention and while the women were in Davao. This
will be one of the means whereby the just hope expressed in the majority decision will be realized,
that is, that in the Philippine Islands there should exist a government of laws and not a government
of men and that this decision may serve to bulwark the fortifications of an orderly Government of
laws and to protect individual liberty from illegal encroachments.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-12172             August 29, 1958

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JUAN F. FAJARDO, ET AL., defendants-appellants.

Assistant Solicitor General Esmeraldo Umali and Higinio V. Catalan for appellee.
Prila, Pardalis and Pejo for appellants.

REYES, J. B. L., J.:

Appeal from the decision of the Court of First Instance of Camarines Sur convicting defendants-
appellants Juan F. Fajardo and Pedro Babilonia of a violation of Ordinance No. 7, Series of 1950, of
the Municipality of Baao, Camarines Sur, for having constructed without a permit from the municipal
mayor a building that destroys the view of the public plaza.

It appears that on August 15, 1950, during the incumbency of defendant-appellant Juan F. Fajardo
as mayor of the municipality of Baao, Camarines Sur, the municipal council passed the ordinance in
question providing as follows:

SECTION 1. Any person or persons who will construct or repair a building should, before
constructing or repairing, obtain a written permit from the Municipal Mayor.

SEC. 2. A fee of not less than P2.00 should be charged for each building permit and P1.00
for each repair permit issued.

SEC. 3. PENALTY — Any violation of the provisions of the above, this ordinance, shall make
the violation liable to pay a fine of not less than P25 nor more than P50 or imprisonment of
not less than 12 days nor more than 24 days or both, at the discretion of the court. If said
building destroys the view of the Public Plaza or occupies any public property, it shall be
removed at the expense of the owner of the building or house.

SEC. 4. EFFECTIVITY — This ordinance shall take effect on its approval. (Orig. Recs., P. 3)

Four years later, after the term of appellant Fajardo as mayor had expired, he and his son in-law,
appellant Babilonia, filed a written request with the incumbent municipal mayor for a permit to
construct a building adjacent to their gasoline station on a parcel of land registered in Fajardo's
name, located along the national highway and separated from the public plaza by a creek (Exh. D).
On January 16, 1954, the request was denied, for the reason among others that the proposed
building would destroy the view or beauty of the public plaza (Exh. E). On January 18, 1954,
defendants reiterated their request for a building permit (Exh. 3), but again the request was turned
down by the mayor. Whereupon, appellants proceeded with the construction of the building without a
permit, because they needed a place of residence very badly, their former house having been
destroyed by a typhoon and hitherto they had been living on leased property.
On February 26, 1954, appellants were charged before and convicted by the justice of the peace
court of Baao, Camarines Sur, for violation of the ordinance in question. Defendants appealed to the
Court of First Instance, which affirmed the conviction, and sentenced appellants to pay a fine of P35
each and the costs, as well as to demolish the building in question because it destroys the view of
the public plaza of Baao, in that "it hinders the view of travelers from the National Highway to the
said public plaza." From this decision, the accused appealed to the Court of Appeals, but the latter
forwarded the records to us because the appeal attacks the constitutionality of the ordinance in
question.

We find that the appealed conviction can not stand.

A first objection to the validity of the ordinance in question is that under it the mayor has absolute
discretion to issue or deny a permit. The ordinance fails to state any policy, or to set up any standard
to guide or limit the mayor's action. No purpose to be attained by requiring the permit is expressed;
no conditions for its grant or refusal are enumerated. It is not merely a case of deficient standards;
standards are entirely lacking. The ordinance thus confers upon the mayor arbitrary and unrestricted
power to grant or deny the issuance of building permits, and it is a settled rule that such an
undefined and unlimited delegation of power to allow or prevent an activity, per se lawful, is invalid
(People vs. Vera, 65 Phil., 56; Primicias vs. Fugoso, 80 Phil., 71; Schloss Poster Adv. Co. vs. Rock
Hill, 2 SE (2d) 392)

The ordinance in question in no way controls or guides the discretion vested thereby in the
respondents. It prescribes no uniform rule upon which the special permission of the city is to
be granted. Thus the city is clothed with the uncontrolled power to capriciously grant the
privilege to some and deny it others; to refuse the application of one landowner or lessee
and to grant that of another, when for all material purposes, the two applying for precisely the
same privileges under the same circumstances. The danger of such an ordinance is that it
makes possible arbitrary discriminations and abuses in its execution, depending upon no
conditions or qualifications whatever, other than the unregulated arbitrary will of the city
authorities as the touchstone by which its validity is to be tested. Fundamental rights under
our government do not depend for their existence upon such a slender and uncertain thread.
Ordinances which thus invest a city council with a discretion which is purely arbitrary, and
which may be exercised in the interest of a favored few, are unreasonable and invalid. The
ordinance should have established a rule by which its impartial enforcement could be
secured. All of the authorities cited above sustain this conclusion.

As was said in City of Richmond vs. Dudley, 129 Ind. 112,28 N. E. 312, 314 13 L. R. A. 587,
28 Am. St. Rep. 180: "It seems from the foregoing authorities to be well established that
municipal ordinances placing restrictions upon lawful conduct or the lawful use of property
must, in order to be valid, specify the rules and conditions to be observed in such conduct or
business; and must admit of the exercise of the privilege of all citizens alike who will comply
with such rules and conditions; and must not admit of the exercise, or of an opportunity for
the exercise, of any arbitrary discrimination by the municipal authorities between citizens
who will so comply. (Schloss Poster Adv. Co., Inc. vs. City of Rock Hill, et al., 2 SE (2d), pp.
394-395).

It is contended, on the other hand, that the mayor can refuse a permit solely in case that the
proposed building "destroys the view of the public plaza or occupies any public property" (as stated
in its section 3); and in fact, the refusal of the Mayor of Baao to issue a building permit to the
appellant was predicated on the ground that the proposed building would "destroy the view of the
public plaza" by preventing its being seen from the public highway. Even thus interpreted, the
ordinance is unreasonable and oppressive, in that it operates to permanently deprive appellants of
the right to use their own property; hence, it oversteps the bounds of police power, and amounts to a
taking of appellants property without just compensation. We do not overlook that the modern
tendency is to regard the beautification of neighborhoods as conducive to the comfort and happiness
of residents. But while property may be regulated in the interest of the general welfare, and in its
pursuit, the State may prohibit structures offensive to the sight (Churchill and Tait vs. Rafferty, 32
Phil. 580), the State may not, under the guise of police power, permanently divest owners of the
beneficial use of their property and practically confiscate them solely to preserve or assure the
aesthetic appearance of the community. As the case now stands, every structure that may be
erected on appellants' land, regardless of its own beauty, stands condemned under the ordinance in
question, because it would interfere with the view of the public plaza from the highway. The
appellants would, in effect, be constrained to let their land remain idle and unused for the obvious
purpose for which it is best suited, being urban in character. To legally achieve that result, the
municipality must give appellants just compensation and an opportunity to be heard.

An ordinance which permanently so restricts the use of property that it can not be used for
any reasonable purpose goes, it is plain, beyond regulation and must be recognized as a
taking of the property. The only substantial difference, in such case, between restriction and
actual taking, is that the restriction leaves the owner subject to the burden of payment of
taxation, while outright confiscation would relieve him of that burden. (Arverne Bay Constr.
Co. vs. Thatcher (N.Y.) 117 ALR. 1110, 1116).

A regulation which substantially deprives an owner of all beneficial use of his property is
confiscation and is a deprivation within the meaning of the 14th Amendment. (Sundlum vs.
Zoning Bd., 145 Atl. 451; also Eaton vs. Sweeny, 177 NE 412; Taylor vs. Jacksonville, 133
So. 114).

Zoning which admittedly limits property to a use which can not reasonably be made of it
cannot be said to set aside such property to a use but constitutes the taking of such property
without just compensation. Use of property is an element of ownership therein. Regardless of
the opinion of zealots that property may properly, by zoning, be utterly destroyed without
compensation, such principle finds no support in the genius of our government nor in the
principles of justice as we known them. Such a doctrine shocks the sense of justice. If it be
of public benefit that property remain open and unused, then certainly the public, and not the
private individuals, should bear the cost of reasonable compensation for such property under
the rules of law governing the condemnation of private property for public use. (Tews vs.
Woolhiser (1933) 352 I11. 212, 185 N.E. 827) (Emphasis supplied.)

The validity of the ordinance in question was justified by the court below under section 2243, par. (c),
of the Revised Administrative Code, as amended. This section provides:

SEC. 2243. Certain legislative powers of discretionary character. — The municipal council

shall have authority to exercise the following discretionary powers:

xxx     xxx     xxx

(c) To establish fire limits in populous centers, prescribe the kinds of buildings that may be
constructed or repaired within them, and issue permits for the creation or repair thereof,
charging a fee which shall be determined by the municipal council and which shall not be
less than two pesos for each building permit and one peso for each repair permit issued. The
fees collected under the provisions of this subsection shall accrue to the municipal school
fund.
Under the provisions of the section above quoted, however, the power of the municipal council to
require the issuance of building permits rests upon its first establishing fire limits in populous parts of
the town and prescribing the kinds of buildings that may be constructed or repaired within them. As
there is absolutely no showing in this case that the municipal council had either established fire limits
within the municipality or set standards for the kind or kinds of buildings to be constructed or
repaired within them before it passed the ordinance in question, it is clear that said ordinance was
not conceived and promulgated under the express authority of sec. 2243 (c) aforequoted.

We rule that the regulation in question, Municipal Ordinance No. 7, Series of 1950, of the
Municipality of Baao, Camarines Sur, was beyond the authority of said municipality to enact, and is
therefore null and void. Hence, the conviction of herein appellants is reversed, and said accused are
acquitted, with costs de oficio. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-42571-72 July 25, 1983

VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO CORPUZ, TERESITA
CALOT, ROSALIA FERNANDEZ, ELIZABETH VELASCO, NANETTE VILLANUEVA, HONORATO
BUENAVENTURA, RUBEN DE CASTRO, VICENTE ROXAS, RICARDO DAMIAN, DOMDINO
ROMDINA, ANGELINA OBLIGACION, CONRADO GREGORIO, TEODORO REYES, LYDIA
ATRACTIVO, NAPOLEON MENDOZA, PERFECTO GUMATAY, ANDRES SABANGAN, ROSITA
DURAN, SOCORRO BERNARDEZ, and PEDRO GABRIEL, petitioners,
vs.
THE HONORABLE EDGARDO L. PARAS, MATIAS RAMIREZ as the Municipal Mayor, MARIO
MENDOZA as the Municipal Vice-Mayor, and THE MUNICIPAL COUNCIL OF BOCAUE,
BULACAN, respondents.

Federico N. Alday for petitioners.

Dakila F. Castro for respondents.

FERNANDO, C.J.:

The crucial question posed by this certiorari proceeding is whether or not a municipal corporation,
Bocaue, Bulacan, represented by respondents,   can, prohibit the exercise of a lawful trade, the
1

operation of night clubs, and the pursuit of a lawful occupation, such clubs employing hostesses. It is
contended that the ordinance assailed as invalid is tainted with nullity, the municipality being devoid
of power to prohibit a lawful business, occupation or calling, petitioners at the same time alleging
that their rights to due process and equal protection of the laws were violated as the licenses
previously given to them was in effect withdrawn without judicial hearing. 2

The assailed ordinance   is worded as follows: "Section 1.— Title of Ordinance.— This Ordinance
3

shall be known and may be cited as the [Prohibition and Closure Ordinance] of Bocaue, Bulacan.
Section 2. — Definitions of Terms — (a) 'Night Club' shall include any place or establishment selling
to the public food or drinks where customers are allowed to dance. (b) 'Cabaret' or 'Dance Hall' shall
include any place or establishment where dancing is permitted to the public and where professional
hostesses or hospitality girls and professional dancers are employed. (c) 'Professional hostesses' or
'hospitality girls' shall include any woman employed by any of the establishments herein defined to
entertain guests and customers at their table or to dance with them. (d) 'Professional dancer' shall
include any woman who dances at any of the establishments herein defined for a fee or
remuneration paid directly or indirectly by the operator or by the persons she dances with. (e)
'Operator' shall include the owner, manager, administrator or any person who operates and is
responsible for the operation of any night club, cabaret or dance hall. Section 3. — Prohibition in the
Issuance and Renewal of Licenses, Permits. — Being the principal cause in the decadence of
morality and because of their other adverse effects on this community as explained above, no
operator of night clubs, cabarets or dance halls shall henceforth be issued permits/licenses to
operate within the jurisdiction of the municipality and no license/permit shall be issued to any
professional hostess, hospitality girls and professional dancer for employment in any of the
aforementioned establishments. The prohibition in the issuance of licenses/permits to said persons
and operators of said establishments shall include prohibition in the renewal thereof. Section 4.
— Revocation of Permits and Licenses.— The licenses and permits issued to operators of night
clubs, cabarets or dance halls which are now in operation including permits issued to professional
hostesses, hospitality girls and professional dancers are hereby revoked upon the expiration of the
thirty-day period given them as provided in Section 8 hereof and thenceforth, the operation of these
establishments within the jurisdiction of the municipality shall be illegal. Section 5.— Penalty in case
of violation. — Violation of any of the provisions of this Ordinance shall be punishable by
imprisonment not exceeding three (3) months or a fine not exceeding P200.00 or both at the
discretion of the Court. If the offense is committed by a juridical entity, the person charged with the
management and/or operation thereof shall be liable for the penalty provided herein. Section 6.
— Separability Clause.— If, for any reason, any section or provision of this Ordinance is held
unconstitutional or invalid, no other section or provision hereof shall be affected thereby. Section 7.
— Repealing Clause.— All ordinance, resolutions, circulars, memoranda or parts thereof that are
inconsistent with the provisions of this Ordinance are hereby repealed. Section 8.— Effectivity.—
This Ordinance shall take effect immediately upon its approval; provided, however, that operators of
night clubs, cabarets and dance halls now in operation including professional hostesses, hospitality
girls and professional dancers are given a period of thirty days from the approval hereof within which
to wind up their businesses and comply with the provisions of this Ordinance."  4

On November 5, 1975, two cases for prohibition with preliminary injunction were filed with the Court
of First Instance of Bulacan.   The grounds alleged follow:
5

1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a lawful business,
occupation or calling.

2. Ordinance No. 84 is violative of the petitioners' right to due process and the equal protection of the
law, as the license previously given to petitioners was in effect withdrawn without judicial hearing. 3.
That under Presidential Decree No. 189, as amended, by Presidential Decree No. 259, the power to
license and regulate tourist-oriented businesses including night clubs, has been transferred to the
Department of Tourism."   The cases were assigned to respondent Judge, now Associate Justice
6

Paras of the Intermediate Appellate Court, who issued a restraining order on November 7, 1975. The
answers were thereafter filed. It was therein alleged: " 1. That the Municipal Council is authorized by
law not only to regulate but to prohibit the establishment, maintenance and operation of night clubs
invoking Section 2243 of the RAC, CA 601, Republic Acts Nos. 938, 978 and 1224. 2. The
Ordinance No. 84 is not violative of petitioners' right to due process and the equal protection of the
law, since property rights are subordinate to public interests. 3. That Presidential Decree No. 189, as
amended, did not deprive Municipal Councils of their jurisdiction to regulate or prohibit night
clubs."   There was the admission of the following facts as having been established: "l. That
7

petitioners Vicente de la Cruz, et al. in Civil Case No. 4755-M had been previously issued licenses
by the Municipal Mayor of Bocaue-petitioner Jose Torres III, since 1958; petitioner Vicente de la
Cruz, since 1960; petitioner Renato Alipio, since 1961 and petitioner Leoncio Corpuz, since 1972; 2.
That petitioners had invested large sums of money in their businesses; 3. That the night clubs are
well-lighted and have no partitions, the tables being near each other; 4. That the petitioners
owners/operators of these clubs do not allow the hospitality girls therein to engage in immoral acts
and to go out with customers; 5. That these hospitality girls are made to go through periodic medical
check-ups and not one of them is suffering from any venereal disease and that those who fail to
submit to a medical check-up or those who are found to be infected with venereal disease are not
allowed to work; 6. That the crime rate there is better than in other parts of Bocaue or in other towns
of Bulacan."   Then came on January 15, 1976 the decision upholding the constitutionality and
8
validity of Ordinance No. 84 and dismissing the cases. Hence this petition for certiorari by way of
appeal.

In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its rationale is
set forth in the opening paragraph thus: "Those who lust cannot last. This in essence is why the
Municipality of Bocaue, Province of Bulacan, stigmatized as it has been by innuendos of sexual
titillation and fearful of what the awesome future holds for it, had no alternative except to order thru
its legislative machinery, and even at the risk of partial economic dislocation, the closure of its night
clubs and/or cabarets. This in essence is also why this Court, obedient to the mandates of good
government, and cognizant of the categorical imperatives of the current legal and social revolution,
hereby [upholds] in the name of police power the validity and constitutionality of Ordinance No. 84,
Series of 1975, of the Municipal Council of Bocaue, Bulacan. The restraining orders heretofore
issued in these two cases are therefore hereby rifted, effective the first day of February, 1976, the
purpose of the grace period being to enable the petitioners herein to apply to the proper appellate
tribunals for any contemplated redress."  This Court is, however, unable to agree with such a
9

conclusion and for reasons herein set forth, holds that reliance on the police power is insufficient to
justify the enactment of the assailed ordinance. It must be declared null and void.

1. Police power is granted to municipal corporations in general terms as follows: "General power of

council to enact ordinances and make regulations. - The municipal council shall enact such
ordinances and make such regulations, not repugnant to law, as may be necessary to carry into
effect and discharge the powers and duties conferred upon it by law and such as shall seem
necessary and proper to provide for the health and safety, promote the prosperity, improve the
morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof,
and for the protection of property therein."   It is practically a reproduction of the former Section 39 of
10

Municipal Code.  An ordinance enacted by virtue thereof, according to Justice Moreland, speaking
11

for the Court in the leading case of United States v. Abendan   "is valid, unless it contravenes the
12

fundamental law of the Philippine Islands, or an Act of the Philippine Legislature, or unless it is
against public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of
common right. Where the power to legislate upon a given subject, and the mode of its exercise and
the details of such legislation are not prescribed, the ordinance passed pursuant thereto must be a
reasonable exercise of the power, or it will be pronounced invalid."   In another leading case, United
13

States v. Salaveria,   the ponente this time being Justice Malcolm, where the present Administrative
14

Code provision was applied, it was stated by this Court: "The general welfare clause has two
branches: One branch attaches itself to the main trunk of municipal authority, and relates to such
ordinances and regulations as may be necessary to carry into effect and discharge the powers and
duties conferred upon the municipal council by law. With this class we are not here directly
concerned. The second branch of the clause is much more independent of the specific functions of
the council which are enumerated by law. It authorizes such ordinances as shall seem necessary
and proper to provide for the health and safety, promote the prosperity, improve the morals, peace,
good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the
protection of property therein.' It is a general rule that ordinances passed by virtue of the implied
power found in the general welfare clause must be reasonable, consonant with the general
powersand purposes of the corporation, and not inconsistent with the laws or policy of the State."   If15

night clubs were merely then regulated and not prohibited, certainly the assailed ordinance would
pass the test of validity. In the two leading cases above set forth, this Court had stressed
reasonableness, consonant with the general powers and purposes of municipal corporations, as well
as consistency with the laws or policy of the State. It cannot be said that such a sweeping exercise
of a lawmaking power by Bocaue could qualify under the term reasonable. The objective of fostering
public morals, a worthy and desirable end can be attained by a measure that does not encompass
too wide a field. Certainly the ordinance on its face is characterized by overbreadth. The purpose
sought to be achieved could have been attained by reasonable restrictions rather than by an
absolute prohibition. The admonition in Salaveria should be heeded: "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."   It is clear that in the guise of a police regulation, there was in this
16

instance a clear invasion of personal or property rights, personal in the case of those individuals
desirous of patronizing those night clubs and property in terms of the investments made and salaries
to be earned by those therein employed.

2. The decision now under review refers to Republic Act No. 938 as amended.   It was originally
17

enacted on June 20, 1953. It is entitled: "AN ACT GRANTING MUNICIPAL OR CITY BOARDS AND
COUNCILS THE POWER TO REGULATE THE ESTABLISHMENT, MAINTENANCE AND
OPERATION OF CERTAIN PLACES OF AMUSEMENT WITHIN THEIR RESPECTIVE
TERRITORIAL JURISDICTIONS.'   Its first section insofar as pertinent reads: "The municipal or city
18

board or council of each chartered city shall have the power to regulate by ordinance the
establishment, maintenance and operation of night clubs, cabarets, dancing schools, pavilions,
cockpits, bars, saloons, bowling alleys, billiard pools, and other similar places of amusement within
its territorial jurisdiction: ... "   Then on May 21, 1954, the first section was amended to include not
19

merely "the power to regulate, but likewise "Prohibit ... "   The title, however, remained the same. It
20

is worded exactly as Republic Act No. 938. It is to be admitted that as thus amended, if only the
above portion of the Act were considered, a municipal council may go as far as to prohibit the
operation of night clubs. If that were all, then the appealed decision is not devoid of support in law.
That is not all, however. The title was not in any way altered. It was not changed one whit. The exact
wording was followed. The power granted remains that of regulation, not prohibition. There is thus
support for the view advanced by petitioners that to construe Republic Act No. 938 as allowing the
prohibition of the operation of night clubs would give rise to a constitutional question. The
Constitution mandates: "Every bill shall embrace only one subject which shall be expressed in the
title thereof. "   Since there is no dispute as the title limits the power to regulating, not prohibiting, it
21

would result in the statute being invalid if, as was done by the Municipality of Bocaue, the operation
of a night club was prohibited. There is a wide gap between the exercise of a regulatory power "to
provide for the health and safety, promote the prosperity, improve the morals,   in the language of
22

the Administrative Code, such competence extending to all "the great public needs,   to quote from
23

Holmes, and to interdict any calling, occupation, or enterprise. In accordance with the well-settled
principle of constitutional construction that between two possible interpretations by one of which it
will be free from constitutional infirmity and by the other tainted by such grave defect, the former is to
be preferred. A construction that would save rather than one that would affix the seal of doom
certainly commends itself. We have done so before We do so again.  24

3. There is reinforcement to the conclusion reached by virtue of a specific provision of the recently-
enacted Local Government Code.   The general welfare clause, a reiteration of the Administrative
25

Code provision, is set forth in the first paragraph of Section 149 defining the powers and duties of
the sangguniang bayan. It read as follows: "(a) Enact such ordinances and issue such regulations as
may be necessary to carry out and discharge the responsibilities conferred upon it by law, and such
as shall be necessary and proper to provide for the health, safety, comfort and convenience,
maintain peace and order, improve public morals, promote the prosperity and general welfare of the
municipality and the inhabitants thereof, and insure the protection of property therein; ..."   There are
26

in addition provisions that may have a bearing on the question now before this Court. Thus
the sangguniang bayan shall "(rr) Regulate cafes, restaurants, beer-houses, hotels, motels, inns,
pension houses and lodging houses, except travel agencies, tourist guides, tourist transports, hotels,
resorts, de luxe restaurants, and tourist inns of international standards which shall remain under the
licensing and regulatory power of the Ministry of Tourism which shall exercise such authority without
infringing on the taxing or regulatory powers of the municipality; (ss) Regulate public dancing
schools, public dance halls, and sauna baths or massage parlors; (tt) Regulate the establishment
and operation of billiard pools, theatrical performances, circuses and other forms of
entertainment; ..."   It is clear that municipal corporations cannot prohibit the operation of night clubs.
27

They may be regulated, but not prevented from carrying on their business. It would be, therefore, an
exercise in futility if the decision under review were sustained. All that petitioners would have to do is
to apply once more for licenses to operate night clubs. A refusal to grant licenses, because no such
businesses could legally open, would be subject to judicial correction. That is to comply with the
legislative will to allow the operation and continued existence of night clubs subject to appropriate
regulations. In the meanwhile, to compel petitioners to close their establishments, the necessary
result of an affirmance, would amount to no more than a temporary termination of their business.
During such time, their employees would undergo a period of deprivation. Certainly, if such an
undesirable outcome can be avoided, it should be. The law should not be susceptible to the
reproach that it displays less than sympathetic concern for the plight of those who, under a mistaken
appreciation of a municipal power, were thus left without employment. Such a deplorable
consequence is to be avoided. If it were not thus, then the element of arbitrariness enters the
picture. That is to pay less, very much less, than full deference to the due process clause with its
mandate of fairness and reasonableness.

4. The conclusion reached by this Court is not to be interpreted as a retreat from its resolute stand
sustaining police power legislation to promote public morals. The commitment to such an Ideal
forbids such a backward step. Legislation of that character is deserving of the fullest sympathy from
the judiciary. Accordingly, the judiciary has not been hesitant to lend the weight of its support to
measures that can be characterized as falling within that aspect of the police power. Reference is
made by respondents to Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila.   There is a misapprehension as to what was decided by this Court. That was a regulatory
28

measure. Necessarily, there was no valid objection on due process or equal protection grounds. It
did not prohibit motels. It merely regulated the mode in which it may conduct business in order
precisely to put an end to practices which could encourage vice and immorality. This is an entirely
different case. What was involved is a measure not embraced within the regulatory power but an
exercise of an assumed power to prohibit. Moreover, while it was pointed out in the aforesaid Ermita-
Malate Hotel and Motel Operators Association, Inc. decision that there must be a factual foundation
of invalidity, it was likewise made clear that there is no need to satisfy such a requirement if a statute
were void on its face. That it certainly is if the power to enact such ordinance is at the most dubious
and under the present Local Government Code non-existent.

WHEREFORE, the writ of certiorari is granted and the decision of the lower court dated January 15,
1976 reversed, set aside, and nullied. Ordinance No. 84, Series of 1975 of the Municipality of
Bocaue is declared void and unconstitutional. The temporary restraining order issued by this Court is
hereby made permanent. No costs.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 92389 September 11, 1991

HON. JEJOMAR C. BINAY and the MUNICIPALITY OF MAKATI, petitioners,

vs.
HON. EUFEMIO DOMINGO and the COMMISSION ON AUDIT, respondents.

Jejomar C. Binay for himself and for his co-petitioner.

Manuel D. Tamase and Rafael C. Marquez for respondents.

PARAS, J.:

The only pivotal issue before Us is whether or not Resolution No. 60, re-enacted under Resolution
No. 243, of the Municipality of Makati is a valid exercise of police power under the general welfare
clause.

The pertinent facts are:

On September 27, 1988, petitioner Municipality, through its Council, approved Resolution No. 60
which reads:

A RESOLUTION TO CONFIRM AND/OR RATIFY THE ONGOING BURIAL ASSISTANCE

PROGRAM INITIATED BY THE OFFICE OF THE MAYOR, OF EXTENDING FINANCIAL
ASSISTANCE OF FIVE HUNDRED PESOS (P500.00) TO A BEREAVED FAMILY, FUNDS
TO BE TAKEN OUT OF UNAPPROPRIATED AVAILABLE FUNDS EXISTING IN THE
MUNICIPAL TREASURY. (Rollo, Annnex "A" p. 39)

Qualified beneficiaries, under the Burial Assistance Program, are bereaved families of Makati whose
gross family income does not exceed two thousand pesos (P2,000.00) a month. The beneficiaries,
upon fulfillment of other requirements, would receive the amount of five hundred pesos (P500.00)
cash relief from the Municipality of Makati. (Reno, Annex "13", p. 41)

Metro Manila Commission approved Resolution No. 60. Thereafter, the municipal secretary certified
a disbursement fired of four hundred thousand pesos (P400,000.00) for the implementation of the
Burial Assistance Program. (Rollo, Annex "C", p. 43).

Resolution No. 60 was referred to respondent Commission on Audit (COA) for its expected
allowance in audit. Based on its preliminary findings, respondent COA disapproved Resolution No.
60 and disallowed in audit the disbursement of finds for the implementation thereof. (Rollo, Annex
"D", P. 44)
Two letters for reconsideration (Annexes "E" and "F", Rollo, pp. 45 and 48, respectively) filed by
petitioners Mayor Jejomar Binay, were denied by respondent in its Decision No. 1159, in the
following manner:

Your request for reconsideration is predicated on the following grounds, to wit:

1. Subject Resolution No. 60, s. 1988, of the Municipal Council of Makati and the intended
disbursements fall within the twin principles of 'police power and parens patriae and

2. The Metropolitan Manila Commission (MMC), under a Certification, dated June 5, 1989,
has already appropriated the amount of P400,000.00 to implement the Id resolution, and the
only function of COA on the matter is to allow the financial assistance in question.

The first contention is believed untenable. Suffice it to state that:

a statute or ordinance must have a real substantial, or rational relation to the public
safety, health, morals, or general welfare to be sustained as a legitimate exercise of
the police power. The mere assertion by the legislature that a statute relates to the
public health, safety, or welfare does not in itself bring the statute within the police
power of a state for there must always be an obvious and real connection between
the actual provisions of a police regulations and its avowed purpose, and the
regulation adopted must be reasonably adapted to accomplish the end sought to be
attained. 16 Am. Jur 2d, pp. 542-543; emphasis supplied).

Here, we see no perceptible connection or relation between the objective sought to be

attained under Resolution No. 60, s. 1988, supra, and the alleged public safety, general
welfare, etc. of the inhabitants of Makati.

Anent the second contention, let it be stressed that Resolution No. 60 is still subject to the
limitation that the expenditure covered thereby should be for a public purpose, i.e., that the
disbursement of the amount of P500.00 as burial assistance to a bereaved family of the
Municipality of Makati, or a total of P400,000.00 appropriated under the Resolution, should
be for the benefit of the whole, if not the majority, of the inhabitants of the Municipality and
not for the benefit of only a few individuals as in the present case. On this point government
funds or property shall be spent or used solely for public purposes. (Cf. Section 4[2], P.D.
1445). (pp. 50-51, Rollo)

Bent on pursuing the Burial Assistance Program the Municipality of Makati, through its Council,
passed Resolution No. 243, re-affirming Resolution No. 60 (Rollo, Annex "H", p. 52).

However, the Burial Assistance Program has been stayed by COA Decision No. 1159. Petitioner,
through its Mayor, was constrained to file this special civil action of certiorari praying that COA
Decision No. 1159 be set aside as null and void.

The police power is a governmental function, an inherent attribute of sovereignty, which was born
with civilized government. It is founded largely on the maxims, "Sic utere tuo et ahenum non laedas
and "Salus populi est suprema lex Its fundamental purpose is securing the general welfare, comfort
and convenience of the people.

Police power is inherent in the state but not in municipal corporations (Balacuit v. CFI of Agusan del
Norte, 163 SCRA 182). Before a municipal corporation may exercise such power, there must be a
valid delegation of such power by the legislature which is the repository of the inherent powers of the
State. A valid delegation of police power may arise from express delegation, or be inferred from the
mere fact of the creation of the municipal corporation; and as a general rule, municipal corporations
may exercise police powers within the fair intent and purpose of their creation which are reasonably
proper to give effect to the powers expressly granted, and statutes conferring powers on public
corporations have been construed as empowering them to do the things essential to the enjoyment
of life and desirable for the safety of the people. (62 C.J.S., p. 277). The so-called inferred police
powers of such corporations are as much delegated powers as are those conferred in express
terms, the inference of their delegation growing out of the fact of the creation of the municipal
corporation and the additional fact that the corporation can only fully accomplish the objects of its
creation by exercising such powers. (Crawfordsville vs. Braden, 28 N.E. 849). Furthermore,
municipal corporations, as governmental agencies, must have such measures of the power as are
necessary to enable them to perform their governmental functions. The power is a continuing one,
founded on public necessity. (62 C.J.S. p. 273) Thus, not only does the State effectuate its purposes
through the exercise of the police power but the municipality does also. (U.S. v. Salaveria, 39 Phil.
102).

Municipal governments exercise this power under the general welfare clause: pursuant thereto they
are clothed with authority to "enact such ordinances and issue such regulations as may be
necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall
be necessary and proper to provide for the health, safety, comfort and convenience, maintain peace
and order, improve public morals, promote the prosperity and general welfare of the municipality and
the inhabitants thereof, and insure the protection of property therein." (Sections 91, 149, 177 and
208, BP 337). And under Section 7 of BP 337, "every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers necessary and
proper for governance such as to promote health and safety, enhance prosperity, improve morals,
and maintain peace and order in the local government unit, and preserve the comfort and
convenience of the inhabitants therein."

Police power is the power to prescribe regulations to promote the health, morals, peace, education,
good order or safety and general welfare of the people. It is the most essential, insistent, and
illimitable of powers. In a sense it is the greatest and most powerful attribute of the government. It is
elastic and must be responsive to various social conditions. (Sangalang, et al. vs. IAC, 176 SCRA
719). On it depends the security of social order, the life and health of the citizen, the comfort of an
existence in a thickly populated community, the enjoyment of private and social life, and the
beneficial use of property, and it has been said to be the very foundation on which our social system
rests. (16 C.J.S., P. 896) However, it is not confined within narrow circumstances of precedents
resting on past conditions; it must follow the legal progress of a democratic way of life. (Sangalang,
et al. vs. IAC, supra).

In the case at bar, COA is of the position that there is "no perceptible connection or relation between
the objective sought to be attained under Resolution No. 60, s. 1988, supra, and the alleged public
safety, general welfare. etc. of the inhabitants of Makati." (Rollo, Annex "G", p. 51).

Apparently, COA tries to re-define the scope of police power by circumscribing its exercise to "public
safety, general welfare, etc. of the inhabitants of Makati."

In the case of Sangalang vs. IAC, supra, We ruled that police power is not capable of an exact
definition but has been, purposely, veiled in general terms to underscore its all comprehensiveness.
Its scope, over-expanding to meet the exigencies of the times, even to anticipate the future where it
could be done, provides enough room for an efficient and flexible response to conditions and
circumstances thus assuring the greatest benefits.
The police power of a municipal corporation is broad, and has been said to be commensurate with,
but not to exceed, the duty to provide for the real needs of the people in their health, safety, comfort,
and convenience as consistently as may be with private rights. It extends to all the great public
needs, and, in a broad sense includes all legislation and almost every function of the municipal
government. It covers a wide scope of subjects, and, while it is especially occupied with whatever
affects the peace, security, health, morals, and general welfare of the community, it is not limited
thereto, but is broadened to deal with conditions which exists so as to bring out of them the greatest
welfare of the people by promoting public convenience or general prosperity, and to everything
worthwhile for the preservation of comfort of the inhabitants of the corporation (62 C.J.S. Sec. 128).
Thus, it is deemed inadvisable to attempt to frame any definition which shall absolutely indicate the
limits of police power.

COA's additional objection is based on its contention that "Resolution No. 60 is still subject to the
limitation that the expenditure covered thereby should be for a public purpose, ... should be for the
benefit of the whole, if not the majority, of the inhabitants of the Municipality and not for the benefit of
only a few individuals as in the present case." (Rollo, Annex "G", p. 51).

COA is not attuned to the changing of the times. Public purpose is not unconstitutional merely
because it incidentally benefits a limited number of persons. As correctly pointed out by the Office of
the Solicitor General, "the drift is towards social welfare legislation geared towards state policies to
provide adequate social services (Section 9, Art. II, Constitution), the promotion of the general
welfare (Section 5, Ibid) social justice (Section 10, Ibid) as well as human dignity and respect for
human rights. (Section 11, Ibid." (Comment, p. 12)

The care for the poor is generally recognized as a public duty. The support for the poor has long
been an accepted exercise of police power in the promotion of the common good.

There is no violation of the equal protection clause in classifying paupers as subject of legislation.
Paupers may be reasonably classified. Different groups may receive varying treatment. Precious to
the hearts of our legislators, down to our local councilors, is the welfare of the paupers. Thus,
statutes have been passed giving rights and benefits to the disabled, emancipating the tenant-farmer
from the bondage of the soil, housing the urban poor, etc.

Resolution No. 60, re-enacted under Resolution No. 243, of the Municipality of Makati is a paragon
of the continuing program of our government towards social justice. The Burial Assistance Program
is a relief of pauperism, though not complete. The loss of a member of a family is a painful
experience, and it is more painful for the poor to be financially burdened by such death. Resolution
No. 60 vivifies the very words of the late President Ramon Magsaysay 'those who have less in life,
should have more in law." This decision, however must not be taken as a precedent, or as an official
go-signal for municipal governments to embark on a philanthropic orgy of inordinate dole-outs for
motives political or otherwise.

PREMISES CONSIDERED, and with the afore-mentioned caveat, this petition is hereby GRANTED
and the Commission on Audit's Decision No. 1159 is hereby SET ASIDE.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 110249 August 21, 1997

ALFREDO TANO, BALDOMERO TANO, DANILO TANO, ROMUALDO TANO, TEOCENES

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

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

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

The following is petitioners' summary of the factual antecedents giving rise to the petition:

1. On December 15, 1992, the Sangguniang Panlungsod ng Puerto Princesa City enacted
Ordinance No. 15-92 which took effect on January 1, 1993 entitled: "AN ORDINANCE
BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO
PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998 AND PROVIDING
EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES THEREOF", the full text of
which reads as follows:

Sec. 1. Title of the Ordinance. — This Ordinance is entitled: AN

ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND
LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993
TO JANUARY 1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES AND
FOR OTHER PURPOSES THEREOF.

Sec. 2. Purpose, Scope and Coverage. — To effectively free our City Sea
Waters from Cyanide and other Obnoxious substance[s], and shall cover all
persons and/or entities operating within and outside the City of Puerto
Princesa who is are (sic) directly or indirectly in the business or shipment of
live fish and lobster outside the City.

Sec. 3. Definition of terms. — For purpose of this Ordinance the following are
hereby defined:

A. SEA BASS — A kind of fish under the

family of Centropomidae, better known as
APAHAP;

B. CATFISH — A kind of fish under the family

of Plotosidae, better known as HITO-HITO;

C. MUDFISH — A kind of fish under the family

of Orphicaphalisae better known as DALAG;

D. ALL LIVE FISH — All alive, breathing not

necessarily moving of all specie[s] use[d] for
food and for aquarium purposes.
 E. LIVE LOBSTER — Several relatively, large
marine crusteceans [sic] of the genus
Homarus that are alive and breathing not
necessarily moving.

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

company to ship out from Puerto Princesa City to any point of destination
either via aircraft or seacraft of any live fish and lobster except SEA BASS,
CATFISH, MUDFISH, AND MILKFISH FRIES.

Sec. 5. Penalty Clause. — Any person/s and or business entity violating this
Ordinance shall be penalized with a fine of not more than P5,000.00 or
imprisonment of not more than twelve (12) months, cancellation of their
permit to do business in the City of Puerto Princesa or all of the herein stated
penalties, upon the discretion of the court.

Sec. 6. If the owner and/or operator of the establishment found violating the
provisions of this ordinance is a corporation or a partnership, the penalty
prescribed in Section 5 hereof shall be imposed upon its president and/or
General Manager or Managing Partner and/or Manager, as the case maybe
[sic].

Sec. 7. Any existing ordinance or any provision of any ordinance inconsistent

to [sic] this ordinance is deemed repealed.

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

SO ORDAINED.

xxx xxx xxx

2. To implement said city ordinance, then Acting City Mayor Amado L. Lucero issued Office
Order No. 23, Series of 1993 dated January 22, 1993 which reads as follows:

In the interest of public service and for purposes of City Ordinance No. PD 426-14-74,
otherwise known as "AN ORDINANCE REQUIRING ANY PERSON ENGAGED OR
INTENDING TO ENGAGE IN ANY BUSINESS, TRADE, OCCUPATION, CALLING OR
PROFESSION OR HAVING IN HIS POSSESSION ANY OF THE ARTICLES FOR WHICH A
PERMIT IS REQUIRED TO BE HAD, TO OBTAIN FIRST A MAYOR'S PERMIT" and "City
Ordinance No. 15-92, AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH
AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO
JANUARY 1, 1998, you are hereby authorized and directed to check or conduct necessary
inspections on cargoes containing live fish and lobster being shipped out from the Puerto
Princesa Airport, Puerto Princesa Wharf or at any port within the jurisdiction of the City to
any point of destinations [sic] either via aircraft or seacraft.

The purpose of the inspection is to ascertain whether the shipper possessed the required
Mayor's Permit issued by this Office and the shipment is covered by invoice or clearance
issued by the local office of the Bureau of Fisheries and Aquatic Resources and as to
compliance with all other existing rules and regulations on the matter.
Any cargo containing live fish and lobster without the required documents as stated herein
must be held for proper disposition.

In the pursuit of this Order, you are hereby authorized to coordinate with the PAL Manager,
the PPA Manager, the local PNP Station and other offices concerned for the needed support
and cooperation. Further, that the usual courtesy and diplomacy must be observed at all
times in the conduct of the inspection.

Please be guided accordingly.

xxx xxx xxx

3. On February 19, 1993, the Sangguniang Panlalawigan, Provincial Government of

Palawan enacted Resolution No. 33 entitled: "A RESOLUTION PROHIBITING THE
CATCHING, GATHERING, POSSESSING, BUYING, SELLING AND SHIPMENT OF LIVE
MARINE CORAL DWELLING AQUATIC ORGANISMS, TO WIT:
FAMILY: SCARIDAE (MAMENG), EPINE PHELUS FASCIATUS (SUNO). CROMILEPTES
ALTIVELIS (PANTHER OR SENORITA), LOBSTER BELOW 200 GRAMS AND
SPAWNING, TRIDACNA GIGAS (TAKLOBO), PINCTADA MARGARITEFERA (MOTHER
PEARL, OYSTERS, GIANT CLAMS AND OTHER SPECIES), PENAEUS
MONODON (TIGER 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;

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

the existence of the remaining excellent corals and allow the devastated
ones to reinvigorate and regenerate themselves into vitality within the span of
five (5) years;

WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of the [sic] R.A. 7160 otherwise
known as the Local Government Code of 1991 empowers the Sangguniang
Panlalawigan to protect the environment and impose appropriate penalties
[upon] acts which endanger the environment such as dynamite fishing and
other forms of destructive fishing, among others.

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

unanimous decision of all the members present;

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

of 1993 of the Sangguniang Panlalawigan and to enact Ordinance No. 2 for
the purpose, to wit:
 ORDINANCE NO. 2
Series of 1993

BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN IN SESSION ASSEMBLED:

Sec. 1. TITLE — This Ordinance shall be known as an "Ordinance

Prohibiting the catching, gathering, possessing, buying, selling and shipment
of live marine coral dwelling aquatic organisms, to wit: 1. Family: Scaridae
(Mameng), 2. Epinephelus Fasciatus (Suno) 3. Cromileptes altivelis (Panther
or Senorita), lobster below 200 grams and spawning), 4. Tridacna Gigas
(Taklobo), 5. Pinctada Margaretefera (Mother Pearl, Oysters, Giant Clams
and other species), 6. Penaeus Monodon (Tiger Prawn-breeder size or
mother), 7. Epinephelus Suillus (Loba or Green Grouper) and 8. Family:
Balistidae (T[r]opical Aquarium Fishes) for a period of five (5) years in and
coming from Palawan Waters.

Sec. II. PRELIMINARY CONSIDERATIONS

1. Sec. 2-A (Rep. Act 7160). It is hereby declared, the policy of the state that
the territorial and political subdivisions of the State shall enjoy genuine and
meaningful local autonomy to enable them to attain their fullest development
as self-reliant communities and make them more effective partners in the
attainment of national goals. Toward this end, the State shall provide for [a]
more responsive and accountable local government structure instituted
through a system of decentralization whereby local government units shall be
given more powers, authority, responsibilities and resources.

2. Sec. 5-A (R.A. 7160). Any provision on a power of [a] local Government
Unit shall be liberally interpreted in its favor, and in case of doubt, any
question thereon shall be resolved in favor of devolution of powers and of the
lower government units. "Any fair and reasonable doubts as to the existence
of the power shall be interpreted in favor of the Local Government Unit
concerned."

3. Sec. 5-C (R.A. 7160). The general welfare provisions in this Code shall be
liberally interpreted to give more powers to local government units in
accelerating economic development and upgrading the quality of life for the
people in the community.

4. Sec. 16 (R.A. 7160). General Welfare. — Every local government unit shall
exercise the powers expressly granted, those necessarily implied therefrom,
as well as powers necessary, appropriate, or incidental for its efficient and
effective governance; and those which are essential to the promotion of the
general welfare.

Sec. III. DECLARATION OF POLICY. — It is hereby declared to be the policy

of the Province of Palawan to protect and conserve the marine resources of
Palawan not only for the greatest good of the majority of the present
generation but with [the] proper perspective and consideration of [sic] their
prosperity, and to attain this end, the Sangguniang Panlalawigan henceforth
declares that is (sic) shall be unlawful for any person or any business entity
to engage in catching, gathering, possessing, buying, selling and shipment of
 live marine coral dwelling aquatic organisms as enumerated in Section 1
hereof in and coming out of Palawan Waters for a period of five (5) years;

Sec. IV. PENALTY CLAUSE. — Any person and/or business entity violating
this Ordinance shall be penalized with a fine of not more than Five Thousand
Pesos (P5,000.00), Philippine Currency, and/or imprisonment of six (6)
months to twelve (12) months and confiscation and forfeiture of
paraphernalias [sic] and equipment in favor of the government at the
discretion of the Court;

Sec. V. SEPARABILITY CLAUSE. — If for any reason, a Section or provision

of this Ordinance shall be held as unconditional [sic] or invalid, it shall not
affect the other provisions hereof.

Sec. VI. REPEALING CLAUSE. — Any existing Ordinance or a provision of

any ordinance inconsistent herewith is deemed modified, amended or
repealed.

Sec. VII. EFFECTIVITY — This Ordinance shall take effect ten (10) days
after its publication.

SO ORDAINED.

xxx xxx xxx

4. The respondents implemented the said ordinances, Annexes "A" and "C" hereof thereby
depriving all the fishermen of the whole province of Palawan and the City of Puerto Princesa
of their only means of livelihood and the petitioners Airline Shippers Association of Palawan
and other marine merchants from performing their lawful occupation and trade;

5. Petitioners Alfredo Tano, Baldomero Tano, Teocenes Midello, Angel de Mesa, Eulogio
Tremocha, and Felipe Ongonion, Jr. were even charged criminally under criminal case no.
93-05-C in the 1st Municipal Circuit Trial Court of Cuyo-Agutaya-Magsaysay, an original
carbon copy of the criminal complaint dated April 12, 1993 is hereto attached as Annex "D";
while xerox copies are attached as Annex "D" to the copies of the petition;

6. Petitioners Robert Lim and Virginia Lim, on the other hand, were charged by the
respondent PNP with the respondent City Prosecutor of Puerto Princess City, a xerox copy
of the complaint is hereto attached as Annex "E";

Without seeking redress from the concerned local government units, prosecutor's office and courts,
petitioners directly invoked our original jurisdiction by filing this petition on 4 June 1993. In sum,
petitioners contend that:

First, the Ordinances deprived them of due process of law, their livelihood, and unduly restricted
them from the practice of their trade, in violation of Section 2, Article XII and Sections 2 and 7 of
Article XIII of the 1987 Constitution.

Second, Office Order No. 23 contained no regulation nor condition under which the Mayor's permit
could be granted or denied; in other words, the Mayor had the absolute authority to determine
whether or not to issue the permit.
Third, as Ordinance No. 2 of the Province of Palawan "altogether prohibited the catching, gathering,
possession, buying, selling and shipping of live marine coral dwelling organisms, without any
distinction whether it was caught or gathered through lawful fishing method," the Ordinance took
away the right of petitioners-fishermen to earn their livelihood in lawful ways; and insofar as
petitioners-members of Airline Shippers Association are concerned, they were unduly prevented
from pursuing their vocation and entering "into contracts which are proper, necessary, and essential
to carry out their business endeavors to a successful conclusion."

Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan is null and void, the criminal cases
based thereon against petitioners Tano and the others have to be dismissed.

In the Resolution of 15 June 1993 we required respondents to comment on the petition, and
furnished the Office of the Solicitor General with a copy thereof.

In their comment filed on 13 August 1993, public respondents Governor Socrates and Members of
the Sangguniang Panlalawigan of Palawan defended the validity of Ordinance No. 2, Series of 1993,
as a valid exercise of the Provincial Government's power under the general welfare clause (Section
16 of the Local Government Code of 1991 [hereafter, LGC]), and its specific power to protect the
environment and impose appropriate penalties for acts which endanger the environment, such as
dynamite fishing and other forms of destructive fishing under Section 447 (a) (1) (vi), Section 458 (a)
(1) (vi), and Section 468 (a) (1) (vi), of the LGC. They claimed that in the exercise of such powers,
the Province of Palawan had "the right and responsibility . . . to insure that the remaining coral reefs,
where fish dwells [sic], within its territory remain healthy for the future generation." The Ordinance,
they further asserted, covered only live marine coral dwelling aquatic organisms which were
enumerated in the ordinance and excluded other kinds of live marine aquatic organisms not dwelling
in coral reefs; besides the prohibition was for only five (5) years to protect and preserve the pristine
coral and allow those damaged to regenerate.

Aforementioned respondents likewise maintained that there was no violation of the due process and
equal protection clauses of the Constitution. As to the former, public hearings were conducted before
the enactment of the Ordinance which, undoubtedly, had a lawful purpose and employed reasonable
means; while as to the latter, a substantial distinction existed "between a fisherman who catches live
fish with the intention of selling it live, and a fisherman who catches live fish with no intention at all of
selling it live," i.e., "the former uses sodium cyanide while the latter does not." Further, the Ordinance
applied equally to all those belonging to one class.

On 25 October 1993 petitioners filed an Urgent Plea for the Immediate Issuance of a Temporary
Restraining Order, claiming that despite the pendency of this case, Branch 50 of the Regional Trial
Court of Palawan was bent on proceeding with Criminal Case No. 11223 against petitioners Danilo
Tano, Alfredo Tano, Eulogio Tremocha, Romualdo Tano, Baldomero Tano, Andres Linijan and Angel
de Mesa for violation of Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan. Acting on
said plea, we issued on 11 November 1993 a temporary restraining order directing Judge Angel
Miclat of said court to cease and desist from proceeding with the arraignment and pre-trial of
Criminal Case No. 11223.

On 12 July 1994, we excused the Office of the Solicitor General from filing a comment, considering
that as claimed by said office in its Manifestation of 28 June 1994, respondents were already
represented by counsel.

The rest of the respondents did not file any comment on the petition.
In the resolution of 15 September 1994, we resolved to consider the comment on the petition as the
Answer, gave due course to the petition and required the parties to submit their respective
memoranda. 2

On 22 April 1997 we ordered impleaded as party respondents the Department of Agriculture and the Bureau of Fisheries and Aquatic
Resources and required the Office of the Solicitor General to comment on their behalf. But in light of the latter's motion of 9 July 1997 for an
extension of time to file the comment which would only result in further delay, we dispensed with said comment.

After due deliberation on the pleadings filed, we resolved to dismiss this petition for want of merit,
and on 22 July 1997, assigned it to the ponente to write the opinion of the Court.

There are actually two sets of petitioners in this case. The first is composed of Alfredo Tano,
Baldomero Tano, Danilo Tano, Romualdo Tano, Teocenes Midello, Angel de Mesa, Eulogio
Tremocha, Felipe Ongonion, Jr., Andres Linijan, and Felimon de Mesa, who were criminally charged
with violating Sangguniang Panlalawigan Resolution No. 33 and Ordinance No. 2, Series of 1993, of
the Province of Palawan, in Criminal Case No. 93-05-C of the 1st Municipal Circuit Trial Court
(MCTC) of Palawan; 3 and Robert Lim and Virginia Lim who were charged with violating City Ordinance No. 15-92 of Puerto
Princesa City and Ordinance No. 2, Series of 1993, of the Province of Palawan before the Office of the City Prosecutor of Puerto
Princesa. 4 All of them, with the exception of Teocenes Midello, Felipe Ongonion, Jr., Felimon de Mesa, Robert Lim and Virginia Lim, are
likewise the accused in Criminal Case No. 11223 for the violation of Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan, pending
before Branch 50 of the Regional Trial Court of Palawan. 5

The second set of petitioners is composed of the rest of the petitioners numbering seventy-seven (77), all of whom, except the Airline
Shippers Association of Palawan — an alleged private association of several marine merchants — are natural persons who claim to be
fishermen.

The primary interest of the first set of petitioners is, of course, to prevent the prosecution, trial and
determination of the criminal cases until the constitutionality or legality of the Ordinances they
allegedly violated shall have been resolved. The second set of petitioners merely claim that being
fishermen or marine merchants, they would be adversely affected by the ordinance's.

As to the first set of petitioners, this special civil for certiorari must fail on the ground of prematurity
amounting to a lack of cause of action. There is no showing that said petitioners, as the accused in
the criminal cases, have filed motions to quash the informations therein and that the same were
denied. The ground available for such motions is that the facts charged therein do not constitute an
offense because the ordinances in question are unconstitutional.  6 It cannot then be said that the lower courts
acted without or in excess of jurisdiction or with grave abuse of discretion to justify recourse to the extraordinary remedy of certiorari or
prohibition. It must further be stressed that even if petitioners did file motions to quash, the denial thereof would not forthwith give rise to a
cause of action under Rule 65 of the Rules of Court. The general rule is that where a motion to quash is denied, the remedy therefrom is
not certiorari, but for the party aggrieved thereby to go to trial without prejudice to reiterating special defenses involved in said motion, and if,
after trial on the merits an adverse decision is rendered, to appeal therefrom in the manner authorized by law. 7 And, even where in an
exceptional circumstance such denial may be the subject of a special civil action for certiorari, a motion for reconsideration must have to be
filed to allow the court concerned an opportunity to correct its errors, unless such motion may be dispensed with because of existing
exceptional circumstances. 8 Finally, even if a motion for reconsideration has been filed and denied, the remedy under Rule 65 is still
unavailable absent any showing of the grounds provided for in Section 1 thereof. 9 For obvious reasons, the petition at bar does not, and
could not have, alleged any of such grounds.

As to the second set of petitioners, the instant petition is obviously one for DECLARATORY
RELIEF, i.e., for a declaration that the Ordinances in question are a "nullity . . . for being
unconstitutional."  As such, their petition must likewise fail, as this Court is not possessed of original
10

jurisdiction over petitions for declaratory relief even if only questions of law are involved,  it being 11

settled that the Court merely exercises appellate jurisdiction over such petitions. 12

II
Even granting arguendo that the first set of petitioners have a cause of action ripe for the
extraordinary writ of certiorari, there is here a clear disregard of the hierarchy of courts, and no
special and important reason or exceptional and compelling circumstance has been adduced why
direct recourse to us should be allowed. While we have concurrent jurisdiction with Regional Trial
courts and with the Court of Appeals to issue writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction, such concurrence gives petitioners no unrestricted freedom
of choice of court forum, so we held in People v. Cuaresma. 13

This concurrence of jurisdiction is not . . . to be taken as according to parties seeking any of

the writs an absolute unrestrained freedom of choice of the court to which application
therefor will be directed. There is after all hierarchy of courts. That hierarchy is determinative
of the venue of appeals, and should also serve as a general determinant of the appropriate
forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy
most certainly indicates that petitions for the issuance of extraordinary writs against first level
("inferior") courts should be filed with the Regional Trial Court, and those against the latter,
with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to
issue these writs should be allowed only when there are special and important reasons
therefor, clearly and specifically set out in the petition. This is established policy. It is a policy
necessary to prevent inordinate demands upon the Court's time and attention which are
better devoted to those matters within its exclusive jurisdiction, and to prevent further over-
crowding of the Court's docket. . . .

The Court feels the need to reaffirm that policy at this time, and to enjoin strict adherence
thereto in the light of what it perceives to be a growing tendency on the part of litigants and
lawyers to have their applications for the so-called extraordinary writs, and sometimes even
their appeals, passed upon and adjudicated directly and immediately by the highest tribunal
of the land. . . .

In Santiago v. Vasquez,  this Court forcefully expressed that the propensity of litigants and lawyers
14

to disregard the hierarchy of courts must be put to a halt, not only because of the imposition upon
the precious time of this Court, but also because of the inevitable and resultant delay, intended or
otherwise, in the adjudication of the case which often has to be remanded or referred to the lower
court, the proper forum under the rules of procedure, or as better equipped to resolve the issues
since this Court is not a trier of facts. We reiterated "the judicial policy that this Court will not
entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or
where exceptional and compelling circumstances justify availment of a remedy within and calling for
the exercise of [its] primary jurisdiction."

III

Notwithstanding the foregoing procedural obstacles against the first set of petitioners, we opt to
resolve this case on its merits considering that the lifetime of the challenged Ordinances is about to
end. Ordinance No. 15-92 of the City of Puerto Princesa is effective only up to 1 January 1998, while
Ordinance No. 2 of the Province of Palawan, enacted on 19 February 1993, is effective for only five
(5) years. Besides, these Ordinances were undoubtedly enacted in the exercise of powers under the
new LGC relative to the protection and preservation of the environment and are thus novel and of
paramount importance. No further delay then may be allowed in the resolution of the issues raised.

It is of course settled that laws (including ordinances enacted by local government units) enjoy the
presumption of constitutionality.   To overthrow this presumption, there must be a clear and
15

unequivocal breach of the Constitution, not merely a doubtful or argumentative contradiction. In

short, the conflict with the Constitution must be shown beyond reasonable doubt.  Where doubt
16

exists, even if well-founded, there can be no finding of unconstitutionality. To doubt is to sustain. 17

After a scrutiny of the challenged Ordinances and the provisions of the Constitution petitioners claim
to have been violated, we find petitioners' contentions baseless and so hold that the former do not
suffer from any infirmity, both under the Constitution and applicable laws.

Petitioners specifically point to Section 2, Article XII and Sections 2 and 7, Article XIII of the
Constitution as having been transgressed by the Ordinances.

The pertinent portion of Section 2 of Article XII reads:

Sec. 2. . . .

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea,
and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino
citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino
citizens, as well as cooperative fish farming, with priority to subsistence fishermen and
fishworkers in rivers, lakes, bays, and lagoons.

Sections 2 and 7 of Article XIII provide:

Sec. 2. The promotion of social justice shall include the commitment to create
economic opportunities based on freedom of initiative and self-reliance.

xxx xxx xxx

Sec. 7. The State shall protect the rights of subsistence fishermen, especially of local
communities, to the preferential use of the communal marine and fishing resources,
both inland and offshore. It shall provide support to such fishermen through
appropriate technology and research, adequate financial, production, and marketing
assistance, and other services. The State shall also protect, develop, and conserve
such resources. The protection shall extend to offshore fishing grounds of
subsistence fishermen against foreign intrusion. Fishworkers shall receive a just
share from their labor in the utilization of marine and fishing resources.

There is absolutely no showing that any of the petitioners qualifies as a subsistence or

marginal fisherman. In their petition, petitioner Airline Shippers Association of Palawan is
self-described as "a private association composed of Marine Merchants;" petitioners Robert
Lim and Virginia Lim, as "merchants;" while the rest of the petitioners claim to be
"fishermen," without any qualification, however, as to their status.

Since the Constitution does not specifically provide a definition of the terms "subsistence" or
"marginal" fishermen,  they should be construed in their general and ordinary sense.
18

A marginal fisherman is an individual engaged in fishing whose margin of return or reward in

his harvest of fish as measured by existing price levels is barely sufficient to yield a profit or
cover the cost of gathering the fish,  while a subsistence fisherman is one whose catch
19

yields but the irreducible minimum for his livelihood.  Section 131(p) of the LGC (R.A. No.
20

7160) defines a marginal farmer or fisherman as "an individual engaged in subsistence

farming or fishing which shall be limited to the sale, barter or exchange of agricultural or
marine products produced by himself and his immediate family." It bears repeating that
nothing in the record supports a finding that any petitioner falls within these definitions.

Besides, Section 2 of Article XII aims primarily not to bestow any right to subsistence
fishermen, but to lay stress on the duty of the State to protect the nation's marine wealth.
What the provision merely recognizes is that the State may allow, by law, cooperative fish
farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays and
lagoons. Our survey of the statute books reveals that the only provision of law which speaks
of a preferential right of marginal fishermen is Section 149 of the LGC, which pertinently
provides:

Sec. 149. Fishery Rentals, Fees and Charges. — . . .

(b) The sangguniang bayan may:

(1) Grant fishery privileges to erect fish corrals,

oyster, mussels or other aquatic beds or bangus fry
areas, within a definite zone of the municipal waters,
as determined by it: Provided, however, That duly
registered organizations and cooperatives of marginal
fishermen shall have the preferential right to such
fishery privileges . . . .

In a Joint Administrative Order No. 3 dated 25 April 1996, the Secretary of the Department of
Agriculture and the Secretary of the Department of Interior and Local Government prescribed
guidelines concerning the preferential treatment of small fisherfolk relative to the fishery right
mentioned in Section 149. This case, however, does not involve such fishery right.

Anent Section 7 of Article XIII, it speaks not only of the use of communal marine and fishing
resources, but of their protection, development and conservation. As hereafter shown, the
ordinances in question are meant precisely to protect and conserve our marine resources to
the end that their enjoyment may be guaranteed not only for the present generation, but also
for the generations to come.

The so-called "preferential right" of subsistence or marginal fishermen to the use of marine
resources is not at all absolute. In accordance with the Regalian Doctrine, marine resources
belong to the State, and, pursuant to the first paragraph of Section 2, Article XII of the
Constitution, their "exploration, development and utilization . . . shall be under the full control
and supervision of the State." Moreover, their mandated protection, development and
conservation as necessarily recognized by the framers of the Constitution, imply certain
restrictions on whatever right of enjoyment there may be in favor of anyone. Thus, as to the
curtailment of the preferential treatment of marginal fishermen, the following exchange
between Commissioner Francisco Rodrigo and Commissioner Jose F.S. Bengzon, Jr., took
place at the plenary session of the Constitutional Commission:

MR. RODRIGO:

Let us discuss the implementation of this because I would not raise

the hopes of our people, and afterwards fail in the implementation.
How will this be implemented? Will there be a licensing or giving of
permits so that government officials will know that one is really a
 marginal fisherman? Or if policeman say that a person is not a
marginal fisherman, he can show his permit, to prove that indeed he
is one.

MR. BENGZON:

Certainly, there will be some mode of licensing insofar as this is

concerned and this particular question could be tackled when we
discuss the Article on Local Governments — whether we will leave to
the local governments or to Congress on how these things will be
implemented. But certainly, I think our congressmen and our local
officials will not be bereft of ideas on how to implement this mandate.

xxx xxx xxx

MR. RODRIGO:

So, once one is licensed as a marginal fisherman, he can go

anywhere in the Philippines and fish in any fishing grounds.

MR. BENGZON:

Subject to whatever rules and regulations and local laws that may be
passed, may be existing or will be passed.  (emphasis supplied)
21

What must likewise be borne in mind is the state policy enshrined in the Constitution
regarding the duty of the State to protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.   On this score,
22

in Oposa v. Factoran,   this Court declared:

23

While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles the State Policies and not under the Bill of Rights, it does
not follow that it is less important than any of the civil and political rights enumerated
in the latter. Such a right belongs to a different category of rights altogether for it
concerns nothing less than self-preservation and self-perpetuation — aptly and
fittingly stressed by the petitioners — the advancement of which may even be said to
predate all governments and constitutions. As a matter of fact, these basic rights
need not even be written in the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly mentioned in the fundamental
charter, it is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies by the
Constitution itself, thereby highlighting their continuing importance and imposing
upon the state a solemn obligation to preserve the first and protect and advance the
second, the day would not be too far when all else would be lost not only for the
present generation, but also for those to come — generations which stand to inherit
nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it a correlative duty to
refrain from impairing the environment. . . .
The LGC provisions invoked by private respondents merely seek to give flesh and blood to
the right of the people to a balanced and healthful ecology. In fact, the General Welfare
Clause, expressly mentions this right:

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

Moreover, Section 5(c) of the LGC explicitly mandates that the general welfare provisions of
the LGC "shall be liberally interpreted to give more powers to the local government units in
accelerating economic development and upgrading the quality of life for the people of the
community."

The LGC vests municipalities with the power to grant fishery privileges in municipal waters
and impose rentals, fees or charges therefor; to penalize, by appropriate ordinances, the use
of explosives, noxious or poisonous substances, electricity, muro-ami, and other deleterious
methods of fishing; and to prosecute any violation of the provisions of applicable fishery
laws.  Further, the sangguniang bayan, the sangguniang panlungsod and the sangguniang
24

panlalawigan are directed to enact ordinances for the general welfare of the municipality and
its inhabitants, which shall include, inter alia, ordinances that "[p]rotect the environment and
impose appropriate penalties for acts which endanger the environment such as dynamite
fishing and other forms of destructive fishing . . . and such other activities which result in
pollution, acceleration of eutrophication of rivers and lakes, or of ecological
imbalance." 25

Finally, the centerpiece of LGC is the system of decentralization  as expressly mandated by
26

the Constitution.  Indispensable to decentralization is devolution and the LGC expressly

27

provides that "[a]ny provision on a power of a local government unit shall be liberally
interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor
of devolution of powers and of the lower local government unit. Any fair and reasonable
doubt as to the existence of the power shall be interpreted in favor of the local government
unit concerned."  Devolution refers to the act by which the National Government confers
28

power and authority upon the various local government units to perform specific functions
and responsibilities. 29

One of the devolved powers enumerated in the section of the LGC on devolution is the
enforcement of fishery laws in municipal waters including the conservation of
mangroves.  This necessarily includes the enactment of ordinances to effectively carry out
30

such fishery laws within the municipal waters.

The term "municipal waters," in turn, includes not only streams, lakes, and tidal waters within
the municipality, not being the subject of private ownership and not comprised within the
national parks, public forest, timber lands, forest reserves, or fishery reserves, but also
marine waters included between two lines drawn perpendicularly to the general coastline
from points where the boundary lines of the municipality or city touch the sea at low tide and
a third line parallel with the general coastline and fifteen kilometers from
it.  Under P.D. No. 704, the marine waters included in municipal waters is limited to three
31

nautical miles from the general coastline using the above perpendicular lines and a third
parallel line.

These "fishery laws" which local government units may enforce under Section 17(b)(2)(i) in
municipal waters include: (1) P.D. No. 704; (2) P.D. No. 1015 which, inter alia, authorizes the
establishment of a "closed season" in any Philippine water if necessary for conservation or
ecological purposes; (3) P.D. No. 1219 which provides for the exploration, exploitation,
utilization and conservation of coral resources; (4) R.A. No. 5474, as amended by B.P. Blg.
58, which makes it unlawful for any person, association or corporation to catch or cause to
be caught, sell, offer to sell, purchase, or have in possession any of the fish specie
called gobiidae or "ipon" during closed season; and (5) R.A. No. 6451 which prohibits and
punishes electrofishing, as well as various issuances of the BFAR.

To those specifically devolved insofar as the control and regulation of fishing in municipal
waters and the protection of its marine environment are concerned, must be added the
following:

1. Issuance of permits to construct fish cages within municipal waters;

2. Issuance of permits to gather aquarium fishes within municipal

waters;

3. Issuance of permits to gather kapis shells within municipal waters;

4. Issuance of permits to gather/culture shelled mollusks within

municipal waters;

5. Issuance of licenses to establish seaweed farms within municipal

waters;

6. Issuance of licenses to establish culture pearls within municipal

waters;

7. Issuance of auxiliary invoice to transport fish and fishery products;

and

8. Establishment of "closed season" in municipal waters.

These functions are covered in the Memorandum of Agreement of 5 April 1994 between the
Department of Agriculture and the Department of Interior and Local Government.

In light then of the principles of decentralization and devolution enshrined in the LGC and the
powers granted therein to local government units under Section 16 (the General Welfare
Clause), and under Sections 149, 447(a) (1) (vi), 458 (a) (1) (vi) and 468 (a) (1) (vi), which
unquestionably involve the exercise of police power, the validity of the questioned
Ordinances cannot be doubted.
Parenthetically, we wish to add that these Ordinances find full support under R.A. No. 7611,
otherwise known as the Strategic Environmental Plan (SEP) for Palawan Act, approved on
19 June 1992. This statute adopts a "comprehensive framework for the sustainable
development of Palawan compatible with protecting and enhancing the natural resources
and endangered environment of the province," which "shall serve to guide the local
government of Palawan and the government agencies concerned in the formulation and
implementation of plans, programs and projects affecting said province." 32

At this time then, it would be appropriate to determine the relation between the assailed
Ordinances and the aforesaid powers of the Sangguniang Panlungsod of the City of Puerto
Princesa and the Sangguniang Panlalawigan of the Province of Palawan to protect the
environment. To begin, we ascertain the purpose of the Ordinances as set forth in the
statement of purposes or declaration of policies quoted earlier.

It is clear to the Court that both Ordinances have two principal objectives or purposes: (1) to
establish a "closed season" for the species of fish or aquatic animals covered therein for a
period of five years; and (2) to protect the coral in the marine waters of the City of Puerto
Princesa and the Province of Palawan from further destruction due to illegal fishing activities.

The accomplishment of the first objective is well within the devolved power to enforce fishery
laws in municipal waters, such as P.D. No. 1015, which allows the establishment of "closed
seasons." The devolution of such power has been expressly confirmed in the Memorandum
of Agreement of 5 April 1994 between the Department of Agriculture and the Department of
Interior and Local Government.

The realization of the second objective clearly falls within both the general welfare clause of
the LGC and the express mandate thereunder to cities and provinces to protect the
environment and impose appropriate penalties for acts which endanger the environment. 33

The destruction of coral reefs results in serious, if not irreparable, ecological imbalance, for
coral reefs are among nature's life-support systems.  They collect, retain and recycle
34

nutrients for adjacent nearshore areas such as mangroves, seagrass beds, and reef flats;
provide food for marine plants and animals; and serve as a protective shelter for aquatic
organisms.  It is said that "[e]cologically, the reefs are to the oceans what forests are to
35

continents: they are shelter and breeding grounds for fish and plant species that will
disappear without them." 36

The prohibition against catching live fish stems, in part, from the modern phenomenon of
live-fish trade which entails the catching of so-called exotic species of tropical fish, not only
for aquarium use in the West, but also for "the market for live banquet fish [which] is virtually
insatiable in ever more affluent Asia.  These exotic species are coral-dwellers, and
37

fishermen catch them by "diving in shallow water with corraline habitats and squirting sodium
cyanide poison at passing fish directly or onto coral crevices; once affected the fish are
immobilized [merely stunned] and then scooped by hand."  The diver then surfaces and
38

dumps his catch into a submerged net attached to the skiff. Twenty minutes later, the fish
can swim normally. Back on shore, they are placed in holding pens, and within a few weeks,
they expel the cyanide from their system and are ready to be hauled. They are then placed
in saltwater tanks or packaged in plastic bags filled with seawater for shipment by air freight
to major markets for live food fish.  While the fish are meant to survive, the opposite holds
39

true for their former home as "[a]fter the fisherman squirts the cyanide, the first thing to
perish is the reef algae, on which fish feed. Days later, the living coral starts to expire. Soon
the reef loses its function as habitat for the fish, which eat both the algae and invertebrates
that cling to the coral. The reef becomes an underwater graveyard, its skeletal remains
brittle, bleached of all color and vulnerable to erosion from the pounding of the waves."  It40

has been found that cyanide fishing kills most hard and soft corals within three months of
repeated application. 41

The nexus then between the activities barred by Ordinance No. 15-92 of the City of Puerto
Princesa and the prohibited acts provided in Ordinance No. 2, Series of 1993 of the Province
of Palawan, on one hand, and the use of sodium cyanide, on the other, is painfully obvious.
In sum, the public purpose and reasonableness of the Ordinances may not then be
controverted.

As to Office Order No. 23, Series of 1993, issued by Acting City Mayor Amado L. Lucero of
the City of Puerto Princesa, we find nothing therein violative of any constitutional or statutory
provision. The Order refers to the implementation of the challenged ordinance and is not the
Mayor's Permit.

The dissenting opinion of Mr. Justice Josue N. Bellosillo relies upon the lack of authority on
the part of the Sangguniang Panglungsod of Puerto Princesa to enact Ordinance No. 15,
Series of 1992, on the theory that the subject thereof is within the jurisdiction and
responsibility of the Bureau of Fisheries and Aquatic Resources (BFAR) under P.D. No. 704,
otherwise known as the Fisheries Decree of 1975; and that, in any event, the Ordinance is
unenforceable for lack of approval by the Secretary of the Department of Natural Resources
(DNR), likewise in accordance with P.D. No. 704.

The majority is unable to accommodate this view. The jurisdiction and responsibility of the
BFAR under P.D. No. 704, over the management, conservation, development, protection,
utilization and disposition of all fishery and aquatic resources of the country is not all-
encompassing. First, Section 4 thereof excludes from such jurisdiction and responsibility
municipal waters, which shall be under the municipal or city government concerned, except
insofar as fishpens and seaweed culture in municipal centers are concerned. This section
provides, however, that all municipal or city ordinances and resolutions affecting fishing and
fisheries and any disposition thereunder shall be submitted to the Secretary of the
Department of Natural Resources for appropriate action and shall have full force and effect
only upon his approval. 42

Second, it must at once be pointed out that the BFAR is no longer under the Department of
Natural Resources (now Department of Environment and Natural Resources). Executive
Order No. 967 of 30 June 1984 transferred the BFAR from the control and supervision of the
Minister (formerly Secretary) Of Natural Resources to the Ministry of Agriculture and Food
(MAF) and converted it into a mere staff agency thereof, integrating its functions with the
regional offices of the MAF.

In Executive Order No. 116 of 30 January 1987, which reorganized the MAF, the BFAR was
retained as an attached agency of the MAF. And under the Administrative Code of
1987,  the BFAR is placed under the Title concerning the Department of Agriculture.
43 44

Therefore, it is incorrect to say that the challenged Ordinance of the City of Puerto Princesa
is invalid or unenforceable because it was not approved by the Secretary of the DENR. If at
all, the approval that should be sought would be that of the Secretary of the Department of
Agriculture. However, the requirement of approval by the Secretary of the Department of
Agriculture (not DENR) of municipal ordinances affecting fishing and fisheries in municipal
waters has been dispensed with in view of the following reasons:
 (1) Section 534 (Repealing Clause) of the LGC expressly repeals or amends Sections 16
and 29 of P.D. No. 704  insofar as they are inconsistent with the provisions of the LGC.
45

(2) As discussed earlier, under the general welfare clause of the LGC, local government
units have the power, inter alia, to enact ordinances to enhance the right of the people to a
balanced ecology. It likewise specifically vests municipalities with the power to grant fishery
privileges in municipal waters, and impose rentals, fees or charges therefor; to penalize, by
appropriate ordinances, the use of explosives, noxious or poisonous substances,
electricity, muro-ami, and other deleterious methods of fishing; and to prosecute any violation
of the provisions of applicable fishery laws.  Finally, it imposes upon the sangguniang bayan,
46

the sangguniang panlungsod, and the sangguniang panlalawigan the duty to enact
ordinances to "[p]rotect the environment and impose appropriate penalties for acts which
endanger the environment such as dynamite fishing and other forms of destructive
fishing . . . and such other activities which result in pollution, acceleration of eutrophication of
rivers and lakes or of ecological imbalance." 47

In closing, we commend the Sangguniang Panlungsod of the City of Puerto Princesa and
Sangguniang Panlalawigan of the Province of Palawan for exercising the requisite political
will to enact urgently needed legislation to protect and enhance the marine environment,
thereby sharing in the herculean task of arresting the tide of ecological destruction. We hope
that other local government units shall now be roused from their lethargy and adopt a more
vigilant stand in the battle against the decimation of our legacy to future generations. At this
time, the repercussions of any further delay in their response may prove disastrous, if not,
irreversible.

WHEREFORE, the instant petition is DISMISSED for lack of merit and the temporary
restraining order issued on 11 November 1993 is LIFTED.

No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Padilla, Romero, Melo, Vitug, Francisco Panganiban and Torres, Jr., JJ., concur.

Regalado, J., is on leave.

Separate Opinions

MENDOZA, J., concurring:

I fully concur in the opinion of the Court written by Justice Davide. I write separately to
emphasize two points which I believe are important. The first is the need to uphold the
presumption of validity of the ordinances in this case in view of the total absence of evidence
to undermine their factual basis. The second is the need not to allow a shortcircuiting of the
normal process of adjudication on the mere plea that unless we take cognizance of petitions
like this, by-passing the trial courts, alleged violations of constitutional rights will be left
unprotected, when the matter can very well be looked into by trial courts and in fact should
be brought there.

The ordinances in question in this case are conservation measures which the local
governments of Palawan have adopted in view of the widespread destruction caused by
cyanide fishing of corals within their territorial waters. At the very least, these ordinances
must be presumed valid in the absence of evidence to show that the necessary factual
foundation for their enactment does not exist. Their invalidation at this point can result in the
untimely exoneration of otherwise guilty parties on the basis of doubtful constitutional claims.

Ordinance No. 2-93, which the Sangguniang Panlalawigan of Palawan adopted in 1993,
prohibits, for a period of five years, the "catching, gathering, possessing, buying, selling and
shipment" of five fish and lobsters. As originally enacted, the prohibition applied to eight
species of fish and lobsters caught in the waters of Palawan, namely, "1. Family: Scaridae
(Mameng), 2. Epinephelus Fasciatus (Suno), 3. Cromileptes altivelis (Panther or Señorita),
lobster (below 200 grams and spawning), 4. Tridacna Gigas (Giant Clams or Taklobo and
other species), 5. Pinctada Margaritifera (Mother Pearl Oysters), 6. Penaeus Monodon (Tiger
Prawn — breeder size or mother), 7. Epinephelus Suillus (Loba or Green Grouper) and 8.
Family: Balistidae (Tropical Aquarium Fishes)." 1 Later, however, the ordinance was amended to limit the ban
to three species only, namely: mameng (scaridae), panther or señorita (cromileptes altivelis) and ornamental or aquarium fishes
(balistidae). Violation of the ordinance is punishable by a fine of P5,000.00 and/or imprisonment of not less than 6 nor more than
12 months and confiscation of the paraphernalia and equipment used in the commission of the offense. 2

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

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

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

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

To enforce the ordinance, the mayor of Puerto Princesa ordered the inspection of cargoes of live fish and lobsters leaving the city
by air or sea. Inspectors are to ascertain if the shipper has a permit issued by the office of the city mayor. Any cargo of live fish
and lobster without a permit from the mayor's office will be "held for proper disposition." 9

The ordinances in question are police power measures, enacted by the Province of Palawan and the City of Puerto Princesa,
pursuant to the Local Government Code of 1991 which makes it in fact their duty to enact measures to "protect the environment
and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of
destructive fishing. . . ."10 There is no basis for the claim in the dissenting opinion that the subject of these ordinances lies within
the competence of the national government. For the matter concerns a local problem, namely, the destruction of aquatic
resources in the Province of Palawan. For this reason the Solicitor General asked for leave to withdraw from this case. On the
other hand, the Department of Agriculture submitted its report on the extent of the devastation of coral reefs caused by illegal
fishing to the Sangguniang Panlalawigan of Palawan and thereby left the solution of the problem to be worked out by the local
authorities. It would therefore set back the policy of decentralization were this Court to sustain such a claim.

Indeed, petitioners' challenge to the validity of the ordinances does not rest on the claim that
the ordinances are beyond the power of local governments to enact but on the ground that
they deprive petitioners of their means of livelihood and occupation and for that reason
violate the Constitution of the Philippines. For support, petitioners invoke the following
constitutional provisions:

Art. XII, §2 . . . . .

The State shall protect the nation's marine wealth in its archipelagic waters, territorial
sea and exclusive economic zone, and reserve its use and enjoyment exclusively to
Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by

Filipino citizens, as well as cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays and lagoons.

Art. XIII, §1: The Congress shall give highest priority to the enactment of measures
that protect and enhance the right of all the people to human dignity, reduce social,
economic, and political inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good.

Id., §7: The State shall protect the rights of subsistence fishermen, especially of local
communities, to the preferential use of the communal marine and fishing resources,
both inland and offshore. It shall provide support to such fishermen through
appropriate technology and research, adequate financial, production, and marketing
assistance, and other services. The State shall also protect, develop, and conserve
such resources. The protection shall extend to offshore fishing grounds of
subsistence fishermen against foreign intrusion. Fishworkers shall receive a just
share from their labor in the utilization of marine and fishing resources.

I cannot see how these provisions can, in any way, lend support to petitioners' contention
that the ordinances violate the Constitution. These provisions refer to the duty of the State to
protect the nation's marine resources for the exclusive use and enjoyment of Filipino citizens,
to the preferential right of subsistence fishermen in the use of such communal marine
resources, and to their right to be protected, even in offshore fishing grounds, against foreign
intrusion. There is no question here of Filipino preference over aliens in the use of marine
resources. What is in issue is the protection of marine resources in the Province of Palawan.
It was precisely to implement Art. XII, §2 that the ordinances in question were enacted. For,
without these marine resources, it would be idle to talk of the rights of subsistence fishermen
to be preferred in the use of these resources.

It has been held that "as underlying questions of fact may condition the constitutionality of
legislation of this character, the presumption of constitutionality must prevail in the absence
of some factual foundation of record for overthrowing the statute."  No evidence has been 11

presented by petitioners to overthrow the factual basis of the ordinances — that, as a result
of the use of cyanide and other noxious substances for fishing, only 5% of the coral reefs in
Palawan was in excellent condition, that 75% had been heavily destroyed, and that because
of the thriving market for live fish and lobster here and abroad there was rampant illicit trade
in live fish.
Nor has it been shown by petitioners that the local legislation here involved is arbitrary or
unreasonable. It has been held: "If the laws passed are seen to have a reasonable relation to
a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of
due process are satisfied, and judicial determination to that effect renders a court functus
officio. . . . With the wisdom of the policy adopted, with the adequacy or practicability of the
law enacted to forward it, the courts are both incompetent and unauthorized to deal. . . ." 12

It is contended that neither Provincial Ordinance No. 2-93 nor City Ordinance No. 15-92
prohibits cyanide fishing and therefore the prohibition against catching certain species of fish
and their transportation is "excessive and irrational." It is further argued that the ban is
unreasonable because it is not limited to cyanide fishing but includes even legitimate fishing.

The ban on the use of cyanide and other noxious substances is already provided for in other
legislation. P.D. No. 534, §2 punishes fishing by means of "explosives, obnoxious or
poisonous substances or by the use of electricity." Consequently, the ordinances in question
can be seen as a necessary corollary of the prohibition against illegal fishing contained in
this Decree. By prohibiting the catching of certain fishes and lobsters, Ordinance No. 2-93 in
effect discourages cyanide fishing because, as already stated, cyanide is preferred in
catching fishes because it does not kill but only stuns them and thus preserves them for
export to the world market.

On the other hand, the claim that the ordinance sweeps overbroadly by "absolutely
prohibit[ing] the catching, gathering, buying and shipment of live fishes and marine coral
resources by any and all means including those lawfully executed or done in the pursuit of
legitimate occupation" misconceives the principal purpose of the ordinance, which is not so
much to prohibit the use of cyanide for fishing as to rebuild corals because of their
destruction by cyanide fishing. This is clear from the "whereas" clauses of Resolution No. 33,
accompanying Ordinance No. 2-93:

WHEREAS, scientific and factual researches and studies disclose that only five (5)
percent of the corals of our province remain to be in excellent condition as habitat of
marine coral dwelling aquatic organisms;

WHEREAS, it cannot be gainsaid that the destruction and devastation of the corals
of our province were principally due to illegal fishing activities like dynamite fishing,
sodium cyanide fishing, use of other obnoxious substances and other related
activities;

WHEREAS, there is an imperative and urgent need to protect and preserve the
existence of the remaining excellent corals and allow the devastated ones to
reinvigorate and regenerate themselves into vitality within the span of five (5) years;

WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of R.A. 7160 otherwise known as the
Local Government Code of 1991 empowers the Sangguniang Panlalawigan to
protect the environment and impose appropriate penalties [for] acts which endanger
the environment such as dynamite fishing and other forms of destructive fishing,
among others;

The principal aim of the ordinance is thus the preservation and rehabilitation of the corals.
Only indirectly is it also concerned with prohibiting the use of cyanide. That this is the aim of
the ordinance can also be inferred from the fact that the ban imposed by it on the catching
and gathering of fishes is for a limited period (5 years) calculated to be the time needed for
the growth and regeneration of the corals. Were the purpose of the ordinance the prohibition
of the use of cyanide for fishing, the ban would not be for a limited period only but for all
time.

I am not much moved by the plea that the ordinances deprive small fishermen of their means
of livelihood and occupation. The ban imposed by Ordinance No. 2-93, as amended, covers
only three species, i.e., mameng (scaridae), panther or señorita (cromilepres altivelis) and
ornamental aquarium fishes (balistiedae), which are prized in the black market. With respect
to other species, it is open season for legitimate fishermen. On the other hand, the ban
imposed by Ordinance No. 15-92 allows the transportation and shipment of sea bass,
catfish, mudfish and milkfish fries. The ban imposed by the two ordinances is limited to five
years. It is thus limited both as to scope and as to period of effectivity. There is, on the other
hand, the imperative necessity for measures to prevent the extinction of certain species of
fish.

Indeed, the burden of showing that there is no reasonable relation between the end and the
means adopted in this case is not on the local governments but on petitioners because of the
presumption that a regulatory statute is valid in the absence of factual evidence to the
contrary. As held in United States v. Salaveria.  "The presumption is all in favor of validity. . .
13

The councilors must, in the very nature of things, be familiar with the necessities of their
particular municipality and with all the facts and circumstances which surround the subject,
and necessitate action. The local legislative body, by enacting the ordinance, has in effect
given notice that the regulations are essential to the well being of the people. . . . The
Judiciary should not lightly set aside legislative action when there is not a clear invasion of
personal or property rights under the guise of police regulation."

Finally, petitioners question Office Order No. 23, s. of 1993, of the city mayor of Puerto
Princesa, for being allegedly vague. This order prohibits the transportation of fish outside the
city without permit from the mayor's office. Petitioners contend that the order does not state
under what condition a permit may be granted and, consequently, leaves it to the absolute
discretion of the mayor when to grant and when to deny a permit. The questioned paragraph
of the order states:

The purpose of the inspection is to ascertain whether the shipper possessed the
required Mayor's Permit issued by this Office and the shipment is covered by invoice
or clearance issued by the local office of the Bureau of Fisheries and Aquatic
Resources and as to compliance with all other existing rules and regulations on the
matter.

This contention is untenable. As the office order is intended to implement City Ordinance No.
15-92, resort must be made to the ordinance in order to determine the scope of such office
order. As already noted, the ordinance prohibits the shipment out of Puerto Princesa of live
fish and lobsters, with the exception of catfish, mudfish and milkfish fries. Consequently, a
permit may be denied if it is for the transportation of fishes which are covered by the ban, but
not for those not covered by it. This is the common sense meaning of the office order in
question. Criminal laws must be precisely drawn, but, as Justice Holmes once said, "We
agree to all the generalities about not supplying criminal laws with what they omit, but there
is no canon against using common sense in construing laws as saying what they obviously
mean." 14

One final point. This case was brought to this Court on the bare bones of the ordinances, on
the mere claim of petitioner Alfredo Tano and his 83 copetitioners that they are subsistence
 fishermen. The constitutional protection refers to small fishermen who depend on the sea for
their existence. Ten of the petitioners, led by Alfredo Tano, are accused in the Municipal
Circuit Trial Court of possession of the species covered by Provincial Ordinance No. 2-93,
while two, Roberto Lim and Virginia Lim, are charged with violation of the two ordinances in
the City Prosecutor's Office. There is no telling from the records of this case whether
petitioners are subsistence fishermen or simply impecunious individuals selling their catch to
the big businessmen. The other petitioners are admittedly fish traders, members of an
association of airline shippers, to whom the constitutional provisions obviously do not apply.

The judicial invalidation of the ordinances in this case could undermine the on-going trial of
some of petitioners. Instead of leaving the determination of the validity of the ordinances to
the trial court, where some of petitioners are facing charges, this Court will be shortcircuiting
the criminal process by prematurely passing upon the constitutional questions and indirectly
on the criminal liability of some of the petitioners. This is a task which should await the
development of evidence of record.

Indeed because of the unsatisfactory abstractness of the record, this case should not have
been brought here. The mere fact that some of petitioners are facing prosecution for violation
of the ordinances is no reason for entertaining their suit. Our jurisdiction is limited to cases
and controversies. Who are petitioners? What is the impact of the ordinance on their
economic situation? Are the factual bases of the two ordinances supported by evidence?
These questions must be raised in the criminal trial or in a suit brought in the trial court so
that facts necessary to adjudicate the constitutional questions can be presented. Nothing can
take the place of the flesh and blood of litigation to assess the actual operation of a statute
and thus ground the judicial power more firmly.

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

reimposing the death penalty, amply demonstrates.

Romero, Melo, Puno and Francisco, JJ., concur.

BELLOSILLO, J., dissenting:

It is settled rule that where the provisions of the law are clear and unambiguous there is no
room for interpretation. The duty of the court is only to apply the law. The exception to such
rule cannot be justified on the sole basis of good motives or noble objectives. For it is also
basic that the end does not justify the means.

The petition raises significant constitutional questions. While petitioners apparently instituted
the action to enjoin their criminal prosecution, the issue boils down to whether the subject
ordinances of Palawan and Puerto Princesa are valid and enforceable as to authorize the
criminal prosecution of those charged with violation thereof.

Notwithstanding the procedural limitations strictly applied in the majority opinion to render the
petition dismissible on grounds of prematurity and lack of real interest in the controversy, the
case clearly falls under the exceptions allowed by law. The petition, I submit, can be properly
treated as a special civil action for certiorari and prohibition under Rule 65 of the Rules of
Court to correct errors of jurisdiction committed by the lower court arising from the
implementation of a void ordinance. Even if the purpose of the petition is for declaratory
relief, if the petition has far-reaching implications and raises questions that should be
resolved as they involve national interest, it may be treated as a special civil action under
Rule 65. 1 The mere absence of a prior motion to quash the Information in the trial court should not prevent the accused,
petitioners herein, from seeking to render null and void the criminal proceedings below.

In criminal cases, when the constitutionality or validity of a law or ordinance is essentially

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

Petitioners are proper parties to set aside the proceedings in the trial court. A proper party is
one who has sustained or is in immediate danger of sustaining an injury as a result of the act
complained of. Petitioners have been criminally charged and arrested for alleged violation of
the ordinances in question. Consequently, unless the trial court is enjoined from continuing
with the proceedings, petitioners are in danger of being convicted and punished under
ordinances which they allege to be invalid and ineffective. In fact this Court initially
recognized the real interest of petitioners in instituting the action when it issued a restraining
order directing Judge Angel R. Miclat to cease and desist until further orders from
proceeding with the arraignment and pre-trial of People v. Alfredo Tano, et al., Crim. Case
No. 11223, for violation of Resolution No. 2-93 of the Sangguniang Panlalawigan of
Palawan, and Ordinance No. 15-92 of the Sangguniang Panlungsod of Puerto Princesa City.

The question to be resolved is whether Resolution No. 2-93, Office Order No. 23 and
Ordinance No. 15-92 are constitutional, valid and enforceable. By considering the purpose
and objective of the ordinances as laudable, the majority adopts the affirmative view in
consonance with the general welfare clause and principle of devolution well-rooted in the
Local Government Code of 1991.

While I agree with the majority that the local leaders of Palawan and Puerto Princesa City be
commended for their efforts to uplift and protect the environment and natural resources
within their areas, the general welfare clause is not the sole criterion to determine the validity
or constitutionality of the ordinances. In Magtajas v. Pryce Properties Corporation, 3 we
reiterated that the well-established tests of a valid ordinance are: (a) It must not contravene the Constitution or any statute; (b) It
must not be unfair or oppressive; (c) It must not be partial or discriminatory; (d) It must not prohibit but may regulate trade; (e) It
must be general and consistent with public policy; and, (f) It must not be unreasonable.

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

Sec. 4. Jurisdiction of the Bureau (of Fisheries and Aquatic Resources). — The
Bureau shall have jurisdiction and responsibility in the management, conservation,
development, protection, utilization and disposition of all fishery and aquatic
resources of the country except municipal waters which shall be under the municipal
 or city government concerned: Provided, That fishpens and seaweed culture in
municipal centers shall be under the jurisdiction of the Bureau: Provided,
further, That all municipal or city ordinances and resolutions affecting fishing and
fisheries and any disposition thereunder shall be submitted to the Secretary for
appropriate action and shall have full force and effect only upon his approval. The
Bureau shall also have authority to regulate and supervise the production, capture
and gathering of fish and fishery/aquatic products.

There is no doubt that under P.D. No. 704 fishing, fishery and aquatic resources in municipal
waters are under the jurisdiction of the municipal or city government concerned. However,
the same decree imposes a mandatory requirement directing municipal or city governments
to submit ordinances enacted pertinent to fishing and fishery resources to the Secretary of
Agriculture who now has control and supervision over the Bureau of Fisheries and Aquatic
Resources (BFAR). The ordinances will attain full force and effect only upon the approval of
the Secretary of Agriculture.

Ordinance 15-92 of Puerto Princesa City, admittedly, was not submitted to the Secretary of
Agriculture through the BFAR for approval. Such failure of compliance with the law prevented
it from becoming valid and effective. Consequently, Office Order No. 23 of the Mayor of
Puerto Princesa City which seeks to implement and enforce Ordinance No. 15-92 is also
ineffective as there is nothing to implement.

To say that Sec. 4 of P.D. No. 704 was impliedly repealed by the Local Government Code is
gratuitous. For, if it was the intention of the legislature to dispense with the requirement of
prior approval by the Secretary of Agriculture of ordinances pertinent to fishery resources, it
would. have expressly repealed Sec. 4 when, in fact, it did so with Secs. 16 and 29 of P.D.
No. 704. Cases abound holding that a repeal by implication is not presumed or favored
considering that the legislature is presumed to be aware of existing laws; ordinarily, if it
intends to revoke a statute it would manifest such intention in express terms.  4 Before such a
repeal is deemed to exist it should be shown that the statutes or statutory provisions deal with the same subject matter and that
the latter be inconsistent with the former. There must be a showing of repugnancy clear and convincing in character. The
language used in the latter statute must be such as to render it irreconcilable with what has been formerly enacted. An
inconsistency that falls short of that standard does not suffice. In fact, there is no inconsistency between the Local Government
Code and P.D. No. 704 as amended. While the Local Government Code vests power upon the local government to enact
ordinances for the general welfare of its inhabitants, such power is subject to certain limitations imposed by the Code itself and by
other statutes. When the legislature failed to repeal Sec. 4 of P.D. No. 704 it accepted and recognized a limitation on the power of
the local government to enact ordinances relative to matters affecting fishery and aquatic resources. A reading of particular
provisions of the Local Government Code itself will reveal that devolution on the powers of the local government pertaining to the
protection of environment is limited and not all-encompassing, as will be discussed in the succeeding paragraphs.

Further, while the Local Government Code is a general law on the powers, responsibilities
and composition of different local government units, P.D. No. 704 is a special law dealing
with the protection and conservation of fishing and aquatic resources including those in the
municipal waters. Hence, the special law should prevail over the general law.

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

Section 2 of the Local Government Code provides for a system of decentralization whereby
local government units are given more powers, authority, responsibilities and resources, and
the process shall proceed from the national government to the local government units.
However, under Sec 3, par. (i), of the Local Government Code, the operative principles of
decentralization upon the environment and natural resources are not absolute when it is
provided therein that "local government units shall share with the national government the
responsibility in the management and maintenance of ecological balance within their
territorial jurisdiction, subject to the provisions of this Code and national policies." The
national policies mentioned here refer to existing policies which the DENR and other
government agencies concerned with the environment may implement at any given moment.
The national policies are embodied in existing laws, rules and regulations pertaining to
environment and natural resources, such as P.D. Nos. 704 and 1219 relating to fishery
resources. The above provision was crafted to make sure that local government enactments
do not supplant or negate national government policies on environment.  6 This is precisely the
reason why the Local Government Code did not repeal Sec. 4 of P.D. NO. 704 requiring prior submission to and approval by the
Secretary of Agriculture of ordinances relative to fishery and aquatic resources. Needless to stress, the approval of the Secretary
is necessary in order to ensure that these ordinances are in accordance with the laws on fisheries and national policies. Likewise,
the jurisdiction of the Secretary of Environment and Natural Resources over coral resources under P.D. No. 1219 remains.

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

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

These prohibitions are tantamount to the establishment of a closed season for fish and
aquatic resources which authority is not among those powers vested by the Local
Government Code to the local government units. For the authority to establish a closed
season for fisheries is vested upon the Secretary of Agriculture by virtue of P.D. Nos. 704
and 1015 and in the Secretary of Environment and Natural resources pursuant to P.D. No.
1219 in relation to coral resources. The power of the local governments is confined and
limited to ensuring that these national fishery laws are implemented and enforced within their
territorial jurisdictions. Hence, any memorandum of agreement which might have been
executed by the Department of Agriculture or Department of Environment and Natural
Resources granting additional powers and functions to the local governments which are not
vested upon the latter by the Local Government Code because such powers are covered by
existing statutes, is an undue delegation of power and, consequently, null and void.

The majority also cites R.A. No. 7611, otherwise known as the Strategic Environmental Plan
(SEP) for Palawan Act, as proof of the power of the local governments of Palawan and
Puerto Princesa City to issue the assailed ordinances. Although the objectives of R.A. No.
7611 and of the ordinances are one and the same, i.e., the protection, conservation and
development of natural resources, the former does not grant additional powers to the local
governments pertaining to the environment. In fact, the law adopts a comprehensive
framework which shall serve to direct and guide local governments and national government
agencies in the implementation of programs and projects affecting Palawan. With the
enactment of this Act, the local governments are mandated to coordinate and align their
developmental plans, projects and budgets in accord with the framework of the SEP. It can
be said that this is another limitation on the exercise of police power by the local
governments of Palawan and Puerto Princesa City because the governance, implementation
and policy direction of the SEP shall be exercised by the Palawan Council for Sustainable
Development (PCSD) which is under the Office of the President.

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

For all the foregoing, I vote to grant the petition.

 SECOND DIVISION

G.R. No. 150763             July 2, 2004

RURAL BANK OF MAKATI, INC., ESTEBAN S. SILVA and MAGDALENA V.

LANDICHO, petitioners,
vs.
MUNICIPALITY OF MAKATI and ATTY. VICTOR A. L. VALERO, respondents.

DECISION

QUISUMBING, J.:

In its decision dated July 17, 2001, in CA-G.R. CV No. 58214, the Court of Appeals affirmed the
1 

decision dated October 22, 1996 of the Regional Trial Court of Makati City, Branch 134, in Civil
2 

Case No. 91-2866 dismissing petitioners’ complaint for recovery of a sum of money and damages.
Petitioners now assail said CA decision as well as the Resolution dated November 9, 2001, which
3 

denied their Motion for Reconsideration.

The facts are as follows:

Sometime in August 1990, Atty. Victor A.L. Valero, then the municipal attorney of the Municipality of
Makati, upon request of the municipal treasurer, went to the Rural Bank of Makati to inquire about
the bank’s payments of taxes and fees to the municipality. He was informed, however, by petitioner
Magdalena V. Landicho, corporate secretary of the bank, that the bank was exempt from paying
taxes under Republic Act No. 720, as amended. 4

On November 19, 1990, the municipality lodged a complaint with the Prosecutor’s Office, charging
petitioners Esteban S. Silva, president and general manager of the bank and Magdalena V.
Landicho for violation of Section 21(a), Chapter II, Article 3 in relation to Sections 105 and 169 of the
Metropolitan Tax Code.

On April 5, 1991, an Information docketed as Criminal Case No. 140208, for violation of Municipal
Ordinance Nos. 122 and 39 for non-payment of the mayor’s permit fee, was filed with the
Metropolitan Trial Court (MeTC) of Makati against petitioners. Another Information, docketed as
Criminal Case No. 140209, for non-payment of annual business tax, in violation of Metro Manila
Commission Ordinance No. 82-03, Section 21(a), Chapter II, Article 3, was likewise filed with the
MeTC.
While said cases were pending with the municipal court, respondent municipality ordered the closure
of the bank. This prompted petitioners to pay, under protest, the mayor’s permit fee and the annual
fixed tax in the amount of P82,408.66.

On October 18, 1991, petitioners filed with the RTC of Makati a Complaint for Sum of Money and
Damages, docketed as Civil Case No. 91-2866. Petitioners alleged that they were constrained to
pay the amount of P82,408.66 because of the closure order, issued despite the pendency of
Criminal Cases Nos. 140208-09 and the lack of any notice or assessment of the fees to be paid.
They averred that the collection of the taxes/fees was oppressive, arbitrary, unjust and illegal.
Additionally, they alleged that respondent Atty. Valero had no power to enforce laws and ordinances,
thus his action in enforcing the collection of the permit fees and business taxes was ultra vires.
Petitioners claimed that the bank lost expected earnings in the amount of P19,778. Petitioners then
assailed the municipal ordinances of Makati as invalid for want of the requisite publication.

In its Answer, respondent municipality asserted that petitioners’ payment of P82,408.66 was for a
legal obligation because the payment of the mayor’s permit fee as well as the municipal business
license was required of all business concerns. According to respondent, said requirement was in
furtherance of the police power of the municipality to regulate businesses.

For his part, Atty. Valero filed an Answer claiming that there was no coercion committed by the
municipality, that payment was a legal obligation of the bank, and that its claim of exemption had no
legal basis. He further alleged that petitioners’ action was clearly intended to harass and humiliate
him and as counterclaim, he asked for moral and other damages.

On October 22, 1996, the RTC decided Civil Case No. 91-2866 as follows:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered dismissing the
complaint.

On the counterclaim, the plaintiffs are hereby ordered jointly and severally to pay to
defendant Victor Valero the sum of P200,000.00 as moral damages and the amount
of P50,000.00 as attorney’s fees.

The counterclaim of defendant Municipality is dismissed.

Cost against the plaintiffs.

SO ORDERED. 5

In finding for respondents, the RTC ruled that the bank was engaged in business as a rural bank.
Hence, it should secure the necessary permit and business license, as well as pay the
corresponding charges and fees. It found that the municipality had authority to impose licenses and
permit fees on persons engaging in business, under its police power embodied under the general
welfare clause. Also, the RTC declared unmeritorious petitioners’ claim for exemption under Rep.
Act No. 720 since said exemption had been withdrawn by Executive Order No. 93 and the Rural
6 

Bank Act of 1992. These statutes no longer exempted rural banks from paying corporate income
7 

taxes and local taxes, fees and charges. It also found petitioners’ claim of lack of publication of MMC
Ordinance Nos. 82-03 and Municipal Ordinance No. 122 to be mere allegations unsupported by
clear and convincing evidence.
In awarding damages to Atty. Valero, the RTC found that he had been maliciously impleaded as
defendant. It noted that Atty. Valero, as a municipal legal officer, was tasked to enforce municipal
ordinances. In short, he was merely an agent of the local chief executive and should not be faulted
for performing his assigned task.

Petitioners seasonably moved for reconsideration, but this was denied by the RTC in its Order dated
January 10, 1997. 8

Petitioners appealed to the Court of Appeals in CA-G.R. CV No. 58214. The appellate court
sustained the lower court in this wise:

WHEREFORE, premises considered, the appealed decision is hereby AFFIRMED in toto.

SO ORDERED. 9

The Court of Appeals found the order of closure of the bank valid and justified since the bank was
operating without any permit and without having paid the requisite permit fee. Thus, declared the
Court of Appeals, "it is not merely a matter of enforcement and collection of fees, as the appellants
would have it, but a violation of the municipality’s authority to regulate the businesses operating
within its territory."
10

The appellate court also brushed aside petitioners’ claim that the general welfare clause is limited
only to legislative action. It declared that the exercise of police power by the municipality was
mandated by the general welfare clause, which authorizes the local government units to enact
ordinances, not only to carry into effect and discharge such duties as are conferred upon them by
law, but also those for the good of the municipality and its inhabitants. This mandate includes the
regulation of useful occupations and enterprises.

Petitioner moved for reconsideration, but the appellate court in its Resolution of November 9, 2001
11 

denied the same.

Hence, this instant petition alleging that the Honorable Court of Appeals seriously erred in:

1) ….HOLDING THAT THE CLOSURE BY THE APPELLEE, VICTOR VALERO, OF THE

APPELLANT BANK WAS A LEGITIMATE EXERCISE OF POLICE POWER BY THE
MUNICIPALITY OF MAKATI;

2) ….NOT CONSIDERING THE FACT THAT MAKATI ORDINANCE 122 REQUIRING

MAYOR’S PERMIT FOR OPERATION OF AN ESTABLISHMENT AND MMC ORDINANCE
NO. 82-03 WERE ADMITTED AS NOT PUBLISHED AS REQUIRED IN TAÑADA, ET AL.,
vs. TUVERA, NO. L-63915, DECEMBER 29, 1986 AND THAT NO TAX ASSESSMENT
WAS PRESENTED TO THE BANK;

3) ….AWARDING MORAL DAMAGES TO APPELLEE VICTOR VALERO IN THE AMOUNT

OF P200,000.00 AND ATTORNEY’S FEES IN THE SUM OF P50,000.00;

4) ….NOT AWARDING TO THE APPELLANT BANK, THE AMOUNT OF P57,854.00

REPRESENTING THE AMOUNT UNJUSTLY AND ILLEGALLY COLLECTED FROM THE
APPELLANT BANK;
 5) ….NOT AWARDING THE AMOUNT OF P10,413.75 YEARLY REPRESENTING THE
UNREALIZED PROFIT WHICH THE APPELLANT BANK IS BEING DEPRIVED OF IN THE
USE OF THE AFORESAID AMOUNT PLUS LEGAL INTEREST ALLOWED IN JUDGMENT
FROM THE TIME OF THE EXTRAJUDICIAL DEMAND. (DEMAND LETTER, DATED
OCTOBER 4, 1991, EXHIBIT "O" FOR THE APPELLANTS);

6) ….NOT GRANTING TO APPELLANTS ESTEBAN S. SILVA AND MAGDALENA

LANDICHO MORAL DAMAGES IN THE AMOUNT OF P15,000.00;

7) ….NOT AWARDING TO APPELLANTS, P1,000,000.00 EXEMPLARY DAMAGES; 25%

OF THE APPELLANTS CLAIM AS AND FOR ATTORNEYS’ FEE AND COSTS OF SUIT. 12

Essentially, the following are the relevant issues for our resolution:

1. Whether or not petitioner bank is liable to pay the business taxes and mayor’s permit fees
imposed by respondent;

2. Whether or not the closure of petitioner bank is valid;

3. Whether or not petitioners are entitled to an award of unrealized profit and damages;

4. Whether or not respondent Atty. Victor Valero is entitled to damages.

On the first issue, petitioner bank claims that of the P82,408.66 it paid under protest, it is actually
liable only for the amount of P24,154, representing taxes, fees and charges due beginning 1987, or
after the issuance of E.O. No. 93. Prior to said year, it was exempt from paying any taxes, fees, and
charges by virtue of Rep. Act No. 720.

We find the bank’s claim for refund untenable now.

Section 14 of Rep. Act No. 720, as amended by Republic Act No. 4106, approved on July 19, 1964,
13 

had exempted rural banks with net assets not exceeding one million pesos (P1,000,000) from the
payment of all taxes, charges and fees. The records show that as of December 29, 1986, petitioner
bank’s net assets amounted only to P745,432.29 or below the one million ceiling provided for in
14 

Section 14 of the old Rural Banking Act. Hence, under Rep. Act No. 720, petitioner bank could claim
to be exempt from payment of all taxes, charges and fees under the aforementioned provision.

However, on December 17, 1986, Executive Order No. 93 was issued by then President Corazon
Aquino, withdrawing all tax and duty incentives with certain exceptions. Notably, not included among
the exceptions were those granted to rural banks under Rep. Act No. 720. With the passage of said
law, petitioner could no longer claim any exemption from payment of business taxes and permit fees.

Now, as to the refund of P57,854 claimed by petitioners allegedly because of overpayment of taxes
and fees, we note that petitioners have not adequately substantiated their claim. As found by the
Court of Appeals:

As to the computation of the payable fees, the plaintiffs-appellants claim an overpayment

and pray for a refund. It is not clearly shown from their argument that such overpayment
exists. And from their initial complaint, they even asked for the refund of the
whole P82,408.66 paid, which complaint was instituted in 1991. They claim having paid the
fees and charges due since 1991, which is irrelevant, since the P82,408.66 was paid for the
 period before 1991, and thus no deduction can be made for payments after that period. It is
not clear where their computation of P57,854.00 owed them came from, and lacking solid
support, their prayer for a partial refund must fail. Plaintiffs-appellants have failed to show
that the payment of fees and charges even covered the period before their exemption was
withdrawn. 15

Factual findings of the Court of Appeals, which are supported on record, are binding and conclusive
upon this Court. As repeatedly held, such findings will not be disturbed unless they are palpably
unsupported by the evidence on record or unless the judgment itself is based on misapprehension of
facts. Moreover, in a petition for review, only questions of law are properly raised. On this score, the
16 

refund sought by petitioners could not be entertained much less granted.

Anent the second issue, petitioner bank claims that the closure of respondent bank was an improper
exercise of police power because a municipal corporation has no inherent but only delegated police
power, which must be exercised not by the municipal mayor but by the municipal council through the
enactment of ordinances. It also assailed the Court of Appeals for invoking the General Welfare
Clause embodied in Section 16 of the Local Government Code of 1991, which took effect in
17 

1992, when the closure of the bank was actually done on July 31, 1991.
18 

Indeed the Local Government Code of 1991 was not yet in effect when the municipality ordered
petitioner bank’s closure on July 31, 1991. However, the general welfare clause invoked by the
Court of Appeals is not found on the provisions of said law alone. Even under the old Local
Government Code (Batas Pambansa Blg. 337) which was then in effect, a general welfare clause
19 

was provided for in Section 7 thereof. Municipal corporations are agencies of the State for the
promotion and maintenance of local self-government and as such are endowed with police powers in
order to effectively accomplish and carry out the declared objects of their creation. The authority of a
20 

local government unit to exercise police power under a general welfare clause is not a recent
development. This was already provided for as early as the Administrative Code of 1917. Since then
21 

it has been reenacted and implemented by new statutes on the matter. Thus, the closure of the bank
was a valid exercise of police power pursuant to the general welfare clause contained in and
restated by B.P. Blg. 337, which was then the law governing local government units. No reversible
error arises in this instance insofar as the validity of respondent municipality’s exercise of police
power for the general welfare is concerned.

The general welfare clause has two branches. The first, known as the general legislative power,
authorizes the municipal council to enact ordinances and make regulations not repugnant to law, as
may be necessary to carry into effect and discharge the powers and duties conferred upon the
municipal council by law. The second, known as the police power proper, authorizes the municipality
to enact ordinances as may be necessary and proper for the health and safety, prosperity, morals,
peace, good order, comfort, and convenience of the municipality and its inhabitants, and for the
protection of their property. 22

In the present case, the ordinances imposing licenses and requiring permits for any business
establishment, for purposes of regulation enacted by the municipal council of Makati, fall within the
purview of the first branch of the general welfare clause. Moreover, the ordinance of the municipality
imposing the annual business tax is part of the power of taxation vested upon local governments as
provided for under Section 8 of B.P. Blg. 337, to wit:
23 

Sec. 8. Authority to Create Sources of Revenue. – (1) Each local government unit shall have
the power to create its own sources of revenue and to levy taxes, subject to such limitations
as may be provided by law.
 ...

Implementation of these ordinances is vested in the municipal mayor, who is the chief executive of
the municipality as provided for under the Local Government Code, to wit:

Sec. 141. Powers and Duties. –

(1) The mayor shall be the chief executive of the municipal government and shall exercise
such powers, duties and functions as provided in this Code and other laws.

(2) He shall:

...

(k) Grant licenses and permits in accordance with existing laws or municipal

ordinances and revoke them for violation of the conditions upon which they have
been granted;

...

(o) Enforce laws, municipal ordinances and resolutions and issue necessary orders

for their faithful and proper enforcement and execution;

(p) Ensure that all taxes and other revenues of the municipality are collected,
and that municipal funds are spent in accordance with law, ordinances and
regulations;

...

(t) Cause to be instituted judicial proceedings in connection with the violation of

ordinances, for the collection of taxes, fees and charges, and for the recovery of
property and funds of the municipality, and otherwise to protect the interest of the
municipality;  (Emphasis supplied)
24 

...

Consequently, the municipal mayor, as chief executive, was clothed with authority to create a
Special Task Force headed by respondent Atty. Victor A.L. Valero to enforce and implement said
ordinances and resolutions and to file appropriate charges and prosecute violators. Respondent
25 

Valero could hardly be faulted for performing his official duties under the cited circumstances.

Petitioners contend that MMC Ordinance No. 82-03 and Municipal Ordinance No. 122 are void for
lack of publication. This again raises a factual issue, which this Court may not look into. As
repeatedly held, this Court is not a trier of facts. Besides, both the Court of Appeals and the trial
26 

court found lack of sufficient evidence on this point to support petitioners’ claim, thus:

And finally the matter of the lack of publication is once again alleged by the plaintiffs-
appellants, claiming that the matter was skirted by the trial court. This argument must fail, in
the light of the trial court’s squarely finding lack of evidence to support the allegation of the
plaintiffs-appellants. We quote from the trial court’s decision:
 The contention that MMC Ordinance No. 82-03 and Municipal Ordinance No. 122 of
Makati are void as they were not publishced (sic) is untenable. The mere allegation
of the plaintiff is not sufficient to declare said ordinances void. The plaintiffs failed to
adduce clear, convincing and competent evidence to prove said Ordinances void.
Moreover, in this jurisdiction, an ordinance is presumed to be valid unless declared
otherwise by a Court in an appropriate proceeding where the validity of the ordinance
is directly put in issue.
27

On the issue of the closure of the bank, we find that the bank was not engaged in any illegal or
immoral activities to warrant its outright closure. The appropriate remedies to enforce payment of
delinquent taxes or fees are provided for in Section 62 of the Local Tax Code, to wit:

SEC. 62. Civil Remedies. – The civil remedies available to enforce payment of delinquent
taxes shall be by distraint of personal property, and by legal action. Either of these remedies
or both simultaneously may be pursued at the discretion of the proper authority.

The payment of other revenues accruing to local governments shall be enforced by legal
action. 28

Said Section 62 did not provide for closure. Moreover, the order of closure violated petitioner’s right
to due process, considering that the records show that the bank exercised good faith and presented
what it thought was a valid and legal justification for not paying the required taxes and fees. The
violation of a municipal ordinance does not empower a municipal mayor to avail of extrajudicial
remedies. It should have observed due process before ordering the bank’s closure.
29 

Finally, on the issue of damages, we agree with both the trial and the appellate courts that the bank
is not entitled to any damages. The award of moral damages cannot be granted to a corporation, it
being an artificial person that exists only in legal contemplation and cannot, therefore, experience
physical suffering and mental anguish, which can be experienced only by one having a nervous
system. There is also no sufficient basis for the award of exemplary damages. There being no moral
30 

damages, exemplary damages could not be awarded also. As to attorney’s fees, aside from lack of
adequate support and proof on the matter, these fees are not recoverable as a matter of right but
depend on the sound discretion of the courts. 31

Under the circumstances of this case, the award of damages to Atty. Valero is also baseless. We
cannot ascribe any illegal motive or malice to the bank for impleading Atty. Valero as an officer of
respondent municipality. The bank filed the case against respondent municipality in the honest belief
that it is exempt from paying taxes and fees. Since Atty. Valero was the official charged with the
implementation of the ordinances of respondent municipality, he was rightly impleaded as a
necessary party in the case.

WHEREFORE, the assailed Decision dated July 17, 2001, of the Court of Appeals in CA-G.R. CV
No. 58214 is AFFIRMED with MODIFICATIONS, so that (1) the order denying any claim for refunds
and fees allegedly overpaid by the bank, as well as the denial of any award for damages and
unrealized profits, is hereby SUSTAINED; (2) the order decreeing the closure of petitioner bank is
SET ASIDE; and (3) the award of moral damages and attorney’s fees to Atty. Victor A.L. Valero is
DELETED. No pronouncement as to costs.

SO ORDERED.
 EN BANC

G.R. No. 118127             April 12, 2005

CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, 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 Petition under Rule 45 (then Rule 42) of the Revised Rules on Civil
1 

Procedure seeking the reversal of the Decision in Civil Case No. 93-66511 of the Regional Trial
2 

Court (RTC) of Manila, Branch 18 (lower court), is the validity of Ordinance No. 7783
3 

(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. It built and opened Victoria Court
5 

in Malate which was licensed as a motel although duly accredited with the Department of Tourism as
a hotel. On 28 June 1993, MTDC filed a Petition for Declaratory Relief with Prayer for a Writ of
6 

Preliminary Injunction and/or Temporary Restraining Order (RTC Petition) with the lower court
7 

impleading as defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito
L. Atienza, and the members of the City Council of Manila (City Council).  MTDC prayed that
the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be
declared invalid and unconstitutional.8

Enacted by the City Council on 9 March 1993 and approved by petitioner City Mayor on 30 March
9 

1993, the said Ordinance is entitled–

AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF

BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT,
SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING
PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES. 10

The Ordinance is reproduced in full, hereunder:

SECTION 1. Any provision of existing laws and ordinances to the contrary

notwithstanding, no person, partnership, corporation or entity shall, in the Ermita-
Malate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft Avenue in the East,
Vito Cruz Street in the South and Roxas Boulevard in the West, pursuant to P.D. 499 be
allowed or authorized to contract and engage in, any business providing certain forms
of amusement, entertainment, services and facilities where women are used as tools
in entertainment and which tend to disturb the community, annoy the inhabitants, and
adversely affect the social and moral welfare of the community, such as but not limited
to:

1. Sauna Parlors

2. Massage Parlors

3. Karaoke Bars

4. Beerhouses

5. Night Clubs
 6. Day Clubs

7. Super Clubs

8. Discotheques

9. Cabarets

10. Dance Halls

11. Motels

12. Inns

SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said
officials are prohibited from issuing permits, temporary or otherwise, or from granting
licenses and accepting payments for the operation of business enumerated in the
preceding section.

SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the

businesses enumerated in Section 1 hereof are hereby given three (3) months from the
date of approval of this ordinance within which to wind up business operations or to
transfer to any place outside of the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area, such as but not limited to:

1. Curio or antique shop

2. Souvenir Shops

3. Handicrafts display centers

4. Art galleries

5. Records and music shops

6. Restaurants

7. Coffee shops

8. Flower shops

9. Music lounge and sing-along restaurants, with well-defined activities for

wholesome family entertainment that cater to both local and foreign clientele.

10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural
shows, stage and theatrical plays, art exhibitions, concerts and the like.

11. Businesses allowable within the law and medium intensity districts as provided
for in the zoning ordinances for Metropolitan Manila, except new warehouse or open-
 storage depot, dock or yard, motor repair shop, gasoline service station, light industry
with any machinery, or funeral establishments.

SEC. 4. Any person violating any provisions of this ordinance, shall upon conviction,
be punished by imprisonment of one (1) year or fine of FIVE THOUSAND (P5,000.00)
PESOS, or both, at the discretion of the Court, PROVIDED, that in case of juridical person,
the President, the General Manager, or person-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) of the Local Government Code of 1991 (the Code) grants to the City Council only the power to
12 

regulate the establishment, operation and maintenance of hotels, motels, inns, pension houses,
lodging houses and other similar establishments; (2) The Ordinance is void as it is violative of
Presidential Decree (P.D.) No. 499 which specifically declared portions of the Ermita-Malate area as
13 

a commercial zone with certain restrictions; (3) The Ordinance does not constitute a proper exercise
of police power as the compulsory closure of the motel business has no reasonable relation to the
legitimate municipal interests sought to be protected; (4) The Ordinance constitutes an ex post
facto law by punishing the operation of Victoria Court which was a legitimate business prior to its
enactment; (5) The Ordinance violates MTDC's constitutional rights in that: (a) it is confiscatory and
constitutes an invasion of plaintiff's property rights; (b) the City Council has no power to find as a fact
that a particular thing is a nuisance per se nor does it have the power to extrajudicially destroy it; and
(6) The Ordinance constitutes a denial of equal protection under the law as no reasonable basis
exists for prohibiting the operation of motels and inns, but not pension houses, hotels, lodging
houses or other similar establishments, and for prohibiting said business in the Ermita-Malate area
but not outside of this area. 14

In their Answer dated 23 July 1993, petitioners City of Manila and Lim maintained that the City
15 

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, which  reads,  thus:
16 

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, petitioners insisted that the power of regulation spoken of in the
17 

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, otherwise known as the Revised Charter of the City of
19 

Manila (Revised Charter of Manila) which reads, thus:

20 

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. The Ordinance, the petitioners likewise claimed, cannot be assailed
22 

as ex post facto as it was prospective in operation. The Ordinance also did not infringe the equal
23 
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. And on 16 July 1993, again
25 

in an intrepid gesture, he granted the writ of preliminary injunction prayed for by MTDC. 26

After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining the
petitioners from implementing the Ordinance. The dispositive portion of said Decision reads: 27

WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series of

1993, of the City of Manila null and void, and making permanent the writ of preliminary
injunction that had been issued by this Court against the defendant. No costs.

SO ORDERED. 28

Petitioners filed with the lower court a Notice of Appeal on 12 December 1994, manifesting that they
29 

are elevating the case to this Court under then Rule 42 on pure questions of law. 30

On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were
committed by the lower court in its ruling: (1) It erred in concluding that the subject ordinance is ultra
vires, or otherwise, unfair, unreasonable and oppressive exercise of police power; (2) It erred in
holding that the questioned Ordinance contravenes P.D. 499 which allows operators of all kinds of
31 

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, petitioners in essence repeat the assertions they made

33 

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. They allege that the Ordinance is a valid exercise
34 

of police power; it does not contravene P.D. 499; and that it enjoys the presumption of validity. 35

In its Memorandum dated 27 May 1996, private respondent maintains that the Ordinance is ultra

36 

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. The Ordinance must satisfy two requirements: it must pass muster under the test of
38 

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. This delegated police power is found in Section 16 of the Code, known as the general
41 

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. The42 

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. In the case at bar, the enactment of the Ordinance was an invalid exercise
43 

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, and as such it is a limitation upon the exercise of the
49 

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. Case law in the United
54 

States (U.S.) tells us that whether there is such a justification depends very much on the level of
scrutiny used. For example, if a law is in an area where only rational basis review is applied,
55 

substantive due process is met so long as the law is rationally related to a legitimate government
purpose.  But if it is an area where strict scrutiny is used, such as for protecting fundamental rights,
then the government will meet substantive due process only if it can prove that the law is necessary
to achieve a compelling government purpose. 56

The police power granted to local government units must always be exercised with utmost
observance of the rights of the people to due process and equal protection of the law. Such power
cannot be exercised whimsically, arbitrarily or despotically as its exercise is subject to a
57 

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. Due process requires the intrinsic validity of the law in
58 

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. It must be evident that
60 

no other alternative for the accomplishment of the purpose less intrusive of private rights can work. 
A reasonable relation must exist between the purposes of the police measure and the means
employed for its accomplishment, for even under the guise of protecting the public interest, personal
rights and those pertaining to private property will not be permitted to be arbitrarily invaded.
61

Lacking a concurrence of these two requisites, the police measure shall be struck down as an
arbitrary intrusion into private rights a violation of the due process clause.
62 

The Ordinance was enacted to address and arrest the social ills purportedly spawned by the
establishments in the Ermita-Malate area which are allegedly operated under the deceptive veneer
of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail lounges,
hotels and motels.  Petitioners insist that even the Court in the case of Ermita-Malate Hotel and
Motel Operators Association, Inc. v. City Mayor of Manila had already taken judicial notice of the
63 

"alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part
to existence of motels, which provide a necessary atmosphere for clandestine entry, presence and
exit and thus become the ideal haven for prostitutes and thrill-seekers." 64

The object of the Ordinance was, accordingly, the promotion and protection of the social and moral
values of the community. Granting for the sake of argument that the objectives of the Ordinance are
within the scope of the City Council's police powers, the means employed for the accomplishment
thereof were unreasonable and unduly oppressive.

It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable
regulations looking to the promotion of the moral and social values of the community. However, the
worthy aim of fostering public morals and the eradication of the community's social ills can be
achieved through means less restrictive of private rights; it can be attained by reasonable restrictions
rather than by an absolute prohibition. The closing down and transfer of businesses or their
conversion into businesses "allowed" under the Ordinance have no reasonable relation to the
accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated establishments
will not per se protect and promote the social and moral welfare of the community; it will not in itself
eradicate the alluded social ills of prostitution, adultery, fornication nor will it arrest the spread of
sexual disease in Manila.

Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and
establishments of the like which the City Council may lawfully prohibit, it is baseless and
65 

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; and it may even impose increased license fees. In other words, there
67 

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." In accordance with this case, the rights of the
68 

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, sought to clarify the meaning of
70 

"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 Ordinance may seek autonomy for these purposes.

Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their
bonds in intimate sexual conduct within the motel's premisesbe it stressed that their consensual
sexual behavior does not contravene any fundamental state policy as contained in the
Constitution.   Adults have a right to choose to forge such relationships with others in the confines of
72 

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. Their right to liberty under the due process
73 

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, borrowing the words of Laski, so very aptly stated:
75 

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. The Ordinance in Section 1 thereof forbids the running of the
77 

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. It is intrusive and violative of the private property rights of individuals.
78 

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, it was held that a taking also could be found if
81 

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. A regulation that permanently denies all economically beneficial or
84 

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. When the owner of real property has been called upon to sacrifice all economically
85 

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." If it be of public benefit that a
89 

"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, as cited in People v. Nazario,      the U.S. Supreme Court
93  94 

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, the city of Dallas adopted a comprehensive ordinance regulating
95 

"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, it 96 

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. The
98 

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. The "equal protection of
99 

the laws is a pledge of the protection of equal laws." It limits governmental discrimination. The
100 

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. The classification must, as an indispensable requisite, not be arbitrary. To be
103 

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. Thus, the discrimination is invalid.
105 

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 Manila that:
106 

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, wherein the Court nullified an ordinance of the Municipality of Tacloban
108 

which prohibited the selling, giving and dispensing of liquor ratiocinating that the municipality is
empowered only to regulate the same and not prohibit. The Court therein declared that:

(A)s a general rule when a municipal corporation is specifically given authority or power to
regulate or to license and regulate the liquor traffic, power to prohibit is impliedly withheld. 109

These doctrines still hold contrary to petitioners' assertion that they were modified by the Code
110 

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. These
111 

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. Moreover, it is a general rule in statutory construction that the express mention of one
113 

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, is instructive. It held
115 

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. If there is an
116 

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. As 121 

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 Ordinance void 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.,1 the Court affirmed the nullification 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 rate [sic], wash-up rate or other
similarly concocted terms, are 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.40 Ermita-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 gender 53 and legitimacy.54 Immediate scrutiny
was adopted by the U.S. Supreme 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 access63 and 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 function of the State is as old as
Aristotle.78 The advancement of 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 which particular behavior to penalize. It
is conceivable that a society with relatively little shared morality among its citizens could be
functional so long as the pursuit of sharply variant moral perspectives yields an adequate
accommodation of different interests.79

To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is
ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase is more
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 conflict by employing more judicious, less drastic means to promote morality.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and
the Decision of the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774
is hereby declared UNCONSTITUTIONAL. No pronouncement as to costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 156052             February 13, 2008

SOCIAL JUSTICE SOCIETY (SJS), VLADIMIR ALARIQUE T. CABIGAO and BONIFACIO S.

TUMBOKON, petitioners,
vs.
HON. JOSE L. ATIENZA, JR., in his capacity as Mayor of the City of Manila, respondent.

x----------------------x

CHEVRON PHILIPPINES INC., PETRON CORPORATION and PILIPINAS SHELL PETROLEUM

CORPORATION, movants-intervenors.

x----------------------x

DEPARTMENT OF ENERGY, movant-intervenor.

RESOLUTION

CORONA, J.:

After we promulgated our decision in this case on March 7, 2007, Chevron Philippines Inc.
(Chevron), Petron Corporation (Petron) and Pilipinas Shell Petroleum Corporation (Shell)
(collectively, the oil companies) and the Republic of the Philippines, represented by the Department
of Energy (DOE), filed their respective motions for leave to intervene and for reconsideration of the
decision.

Chevron1 is engaged in the business of importing, distributing and marketing of petroleum products
in the Philippines while Shell and Petron are engaged in the business of manufacturing, refining and
likewise importing, distributing and marketing of petroleum products in the Philippines. 2 The DOE is a
governmental agency created under Republic Act (RA) No. 7638 3 and tasked to prepare, integrate,
coordinate, supervise and control all plans, programs, projects and activities of the government
relative to energy exploration, development, utilization, distribution and conservation. 4

The facts are restated briefly as follows:

Petitioners Social Justice Society, Vladimir Alarique T. Cabigao and Bonifacio S. Tumbokon, in an
original petition for mandamus under Rule 65 of the Rules of Court, sought to compel respondent
Hon. Jose L. Atienza, Jr., then mayor of the City of Manila, to enforce Ordinance No. 8027. This
ordinance was enacted by the Sangguniang Panlungsod of Manila on November 20,
2001,5 approved by respondent Mayor on November 28, 2001, 6 and became effective on December
28, 2001 after publication.7 Sections 1 and 3 thereof state:

SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public
safety, and general welfare of the residents of Pandacan and Sta. Ana as well as its
 adjoining areas, the land use of [those] portions of land bounded by the Pasig River in the
north, PNR Railroad Track in the east, Beata St. in the south, Palumpong St. in the
southwest, and Estero de Pandacan in the west[,] PNR Railroad in the northwest area,
Estero de Pandacan in the [n]ortheast, Pasig River in the southeast and Dr. M.L. Carreon in
the southwest. The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero
St., Mayo 28 St., and F. Manalo Street, are hereby reclassified from Industrial II to
Commercial I.

xxx       xxx       xxx

SEC. 3. Owners or operators of industries and other businesses, the operation of which are
no longer permitted under Section 1 hereof, are hereby given a period of six (6) months from
the date of effectivity of this Ordinance within which to cease and desist from the operation of
businesses which are hereby in consequence, disallowed.

Ordinance No. 8027 reclassified the area described therein from industrial to commercial and
directed the owners and operators of businesses disallowed under the reclassification to cease and
desist from operating their businesses within six months from the date of effectivity of the ordinance.
Among the businesses situated in the area are the so-called "Pandacan Terminals" of the oil
companies.

On June 26, 2002, the City of Manila and the Department of Energy (DOE) entered into a
memorandum of understanding (MOU)8 with the oil companies. They agreed that "the scaling down
of the Pandacan Terminals [was] the most viable and practicable option." The Sangguniang
Panlungsod ratified the MOU in Resolution No. 97.9 In the same resolution, the Sanggunian declared
that the MOU was effective only for a period of six months starting July 25, 2002. 10 Thereafter, on
January 30, 2003, the Sanggunian adopted Resolution No. 1311 extending the validity of Resolution
No. 97 to April 30, 2003 and authorizing the mayor of Manila to issue special business permits to the
oil companies.12

This was the factual backdrop presented to the Court which became the basis of our March 7, 2007
decision. We ruled that respondent had the ministerial duty under the Local Government Code
(LGC) to "enforce all laws and ordinances relative to the governance of the city," 13 including
Ordinance No. 8027. We also held that we need not resolve the issue of whether the MOU entered
into by respondent with the oil companies and the subsequent resolutions passed by
the Sanggunian could amend or repeal Ordinance No. 8027 since the resolutions which ratified the
MOU and made it binding on the City of Manila expressly gave it full force and effect only until April
30, 2003. We concluded that there was nothing that legally hindered respondent from enforcing
Ordinance No. 8027.

After we rendered our decision on March 7, 2007, the oil companies and DOE sought to intervene
and filed motions for reconsideration in intervention on March 12, 2007 and March 21, 2007
respectively. On April 11, 2007, we conducted the oral arguments in Baguio City to hear petitioners,
respondent and movants-intervenors oil companies and DOE.

The oil companies called our attention to the fact that on April 25, 2003, Chevron had filed a
complaint against respondent and the City of Manila in the Regional Trial Court (RTC) of Manila,
Branch 39, for the annulment of Ordinance No. 8027 with application for writs of preliminary
prohibitory injunction and preliminary mandatory injunction. 14 The case was docketed as civil case
no. 03-106377. On the same day, Shell filed a petition for prohibition and mandamus likewise
assailing the validity of Ordinance No. 8027 and with application for writs of preliminary prohibitory
injunction and preliminary mandatory injunction. 15 This was docketed as civil case no. 03-106380.
Later on, these two cases were consolidated and the RTC of Manila, Branch 39 issued an order
dated May 19, 2003 granting the applications for writs of preliminary prohibitory injunction and
preliminary mandatory injunction:

WHEREFORE, upon the filing of a total bond of TWO MILLION (Php 2,000,000.00) PESOS,
let a Writ of Preliminary Prohibitory Injunction be issued ordering [respondent] and the City of
Manila, their officers, agents, representatives, successors, and any other persons assisting
or acting in their behalf, during the pendency of the case, to REFRAIN from taking steps to
enforce Ordinance No. 8027, and let a Writ of Preliminary Mandatory Injunction be issued
ordering [respondent] to issue [Chevron and Shell] the necessary Business Permits to
operate at the Pandacan Terminal. 16

Petron likewise filed its own petition in the RTC of Manila, Branch 42, also attacking the validity of
Ordinance No. 8027 with prayer for the issuance of a writ of preliminary injunction and/or temporary
restraining order (TRO). This was docketed as civil case no. 03-106379. In an order dated August 4,
2004, the RTC enjoined the parties to maintain the status quo. 17

Thereafter, in 2006, the city council of Manila enacted Ordinance No. 8119, also known as the
Manila Comprehensive Land Use Plan and Zoning Ordinance of 2006. 18 This was approved by
respondent on June 16, 2006. 19

Aggrieved anew, Chevron and Shell filed a complaint in the RTC of Manila, Branch 20, asking for the
nullification of Ordinance No. 8119. 20 This was docketed as civil case no. 06-115334. Petron filed its
own complaint on the same causes of action in the RTC of Manila, Branch 41. 21 This was docketed
as civil case no. 07-116700.22 The court issued a TRO in favor of Petron, enjoining the City of Manila
and respondent from enforcing Ordinance No. 8119. 23

Meanwhile, in civil case no. 03-106379, the parties filed a joint motion to withdraw complaint and
counterclaim on February 20, 2007.24 In an order dated April 23, 2007, the joint motion was granted
and all the claims and counterclaims of the parties were withdrawn. 25

Given these additional pieces of information, the following were submitted as issues for our
resolution:

1. whether movants-intervenors should be allowed to intervene in this case; 26

2. whether the following are impediments to the execution of our March 7, 2007 decision:

(a) Ordinance No. 8119, the enactment and existence of which were not previously
brought by the parties to the attention of the Court and

(b) writs of preliminary prohibitory injunction and preliminary mandatory injunction

and status quo order issued by the RTC of Manila, Branches 39 and 42 and

3. whether the implementation of Ordinance No. 8027 will unduly encroach upon the DOE’s
powers and functions involving energy resources.

During the oral arguments, the parties submitted to this Court’s power to rule on the constitutionality
and validity of Ordinance No. 8027 despite the pendency of consolidated cases involving this issue
in the RTC.27 The importance of settling this controversy as fully and as expeditiously as possible
was emphasized, considering its impact on public interest. Thus, we will also dispose of this issue
here. The parties were after all given ample opportunity to present and argue their respective
positions. By so doing, we will do away with the delays concomitant with litigation and completely
adjudicate an issue which will most likely reach us anyway as the final arbiter of all legal disputes.

Before we resolve these issues, a brief review of the history of the Pandacan Terminals is called for
to put our discussion in the proper context.

History Of The Pandacan Oil Terminals

Pandacan (one of the districts of the City of Manila) is situated along the banks of the Pasig river. At
the turn of the twentieth century, Pandacan was unofficially designated as the industrial center of
Manila. The area, then largely uninhabited, was ideal for various emerging industries as the nearby
river facilitated the transportation of goods and products. In the 1920s, it was classified as an
industrial zone.28 Among its early industrial settlers were the oil companies. Shell established its
installation there on January 30, 1914.29 Caltex (now Chevron) followed suit in 1917 when the
company began marketing its products in the country. 30 In 1922, it built a warehouse depot which
was later converted into a key distribution terminal. 31 The corporate presence in the Philippines of
Esso (Petron’s predecessor) became more keenly felt when it won a concession to build and
operate a refinery in Bataan in 1957.32 It then went on to operate a state-of-the-art lube oil blending
plant in the Pandacan Terminals where it manufactures lubes and greases. 33

On December 8, 1941, the Second World War reached the shores of the Philippine Islands.
Although Manila was declared an open city, the Americans had no interest in welcoming the
Japanese. In fact, in their zealous attempt to fend off the Japanese Imperial Army, the United States
Army took control of the Pandacan Terminals and hastily made plans to destroy the storage facilities
to deprive the advancing Japanese Army of a valuable logistics weapon. 34 The U.S. Army burned
unused petroleum, causing a frightening conflagration. Historian Nick Joaquin recounted the events
as follows:

After the USAFFE evacuated the City late in December 1941, all army fuel storage dumps
were set on fire. The flames spread, enveloping the City in smoke, setting even the rivers
ablaze, endangering bridges and all riverside buildings. … For one week longer, the "open
city" blazed—a cloud of smoke by day, a pillar of fire by night. 35

The fire consequently destroyed the Pandacan Terminals and rendered its network of depots and
service stations inoperative.36

After the war, the oil depots were reconstructed. Pandacan changed as Manila rebuilt itself. The
three major oil companies resumed the operation of their depots. 37 But the district was no longer a
sparsely populated industrial zone; it had evolved into a bustling, hodgepodge community. Today,
Pandacan has become a densely populated area inhabited by about 84,000 people, majority of
whom are urban poor who call it home.38 Aside from numerous industrial installations, there are also
small businesses, churches, restaurants, schools, daycare centers and residences situated
there.39 Malacañang Palace, the official residence of the President of the Philippines and the seat of
governmental power, is just two kilometers away.40 There is a private school near the Petron depot.
Along the walls of the Shell facility are shanties of informal settlers. 41 More than 15,000 students are
enrolled in elementary and high schools situated near these facilities. 42 A university with a student
population of about 25,000 is located directly across the depot on the banks of the Pasig river. 43

The 36-hectare Pandacan Terminals house the oil companies’ distribution terminals and depot
facilities.44 The refineries of Chevron and Shell in Tabangao and Bauan, both in Batangas,
respectively, are connected to the Pandacan Terminals through a 114-kilometer 45 underground
pipeline system.46 Petron’s refinery in Limay, Bataan, on the other hand, also services the
depot.47 The terminals store fuel and other petroleum products and supply 95% of the fuel
requirements of Metro Manila,48 50% of Luzon’s consumption and 35% nationwide. 49 Fuel can also
be transported through barges along the Pasig river or tank trucks via the South Luzon Expressway.

We now discuss the first issue: whether movants-intervenors should be allowed to intervene in this
case.

Intervention Of The Oil Companies And The DOE Should Be Allowed In The Interest of Justice

Intervention is a remedy by which a third party, not originally impleaded in the proceedings, becomes
a litigant therein to enable him, her or it to protect or preserve a right or interest which may be
affected by such proceedings. 50 The pertinent rules are Sections 1 and 2, Rule 19 of the Rules of
Court:

SEC. 1. Who may intervene. — A person who has a legal interest in the matter in litigation,
or in the success of either of the parties, or an interest against both, or is so situated as to be
adversely affected by a distribution or other disposition of property in the custody of the court
or of an officer thereof may, with leave of court, be allowed to intervene in the action. The
court shall consider whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties, and whether or not the intervenor’s rights
may be fully protected in a separate proceeding.

SEC. 2. Time to intervene. — The motion to intervene may be filed at any time before
rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be
attached to the motion and served on the original parties.

Thus, the following are the requisites for intervention of a non-party:

(1) Legal interest

(a) in the matter in controversy; or

(b) in the success of either of the parties; or

I against both parties; or

(d) person is so situated as to be adversely affected by a distribution or other

disposition of property in the custody of the court or of an officer thereof;

(2) Intervention will not unduly delay or prejudice the adjudication of rights of original parties;

(3) Intervenor’s rights may not be fully protected in a separate proceeding 51 and

(g)The motion to intervene may be filed at any time before rendition of judgment by the trial
court.

For both the oil companies and DOE, the last requirement is definitely absent. As a rule, intervention
is allowed "before rendition of judgment" as Section 2, Rule 19 expressly provides. Both filed their
separate motions after our decision was promulgated. In Republic of the Philippines v. Gingoyon,52 a
recently decided case which was also an original action filed in this Court, we declared that the
appropriate time to file the motions-in-intervention was before and not after resolution of the case. 53

The Court, however, has recognized exceptions to Section 2, Rule 19 in the interest of substantial
justice:

The rule on intervention, like all other rules of procedure, is intended to make the powers of
the Court fully and completely available for justice. It is aimed to facilitate a comprehensive
adjudication of rival claims overriding technicalities on the timeliness of the filing thereof. 54

The oil companies assert that they have a legal interest in this case because the implementation of
Ordinance No. 8027 will directly affect their business and property rights. 55

[T]he interest which entitles a person to intervene in a suit between other parties must be in
the matter in litigation and of such direct and immediate character that the intervenor will
either gain or lose by direct legal operation and effect of the judgment. Otherwise, if persons
not parties to the action were allowed to intervene, proceedings would become
unnecessarily complicated, expensive and interminable. And this would be against the policy
of the law. The words "an interest in the subject" means a direct interest in the cause of
action as pleaded, one that would put the intervenor in a legal position to litigate a fact
alleged in the complaint without the establishment of which plaintiff could not recover. 56

We agree that the oil companies have a direct and immediate interest in the implementation of
Ordinance No. 8027. Their claim is that they will need to spend billions of pesos if they are
compelled to relocate their oil depots out of Manila. Considering that they admitted knowing about
this case from the time of its filing on December 4, 2002, they should have intervened long before
our March 7, 2007 decision to protect their interests. But they did not. 57 Neither did they offer any
worthy explanation to justify their late intervention.

Be that as it may, although their motion for intervention was not filed on time, we will allow it because
they raised and presented novel issues and arguments that were not considered by the Court in its
March 7, 2007 decision. After all, the allowance or disallowance of a motion to intervene is
addressed to the sound discretion of the court before which the case is pending. 58 Considering the
compelling reasons favoring intervention, we do not think that this will unduly delay or prejudice the
adjudication of rights of the original parties. In fact, it will be expedited since their intervention will
enable us to rule on the constitutionality of Ordinance No. 8027 instead of waiting for the RTC’s
decision.

The DOE, on the other hand, alleges that its interest in this case is also direct and immediate as
Ordinance No. 8027 encroaches upon its exclusive and national authority over matters affecting the
oil industry. It seeks to intervene in order to represent the interests of the members of the public who
stand to suffer if the Pandacan Terminals’ operations are discontinued. We will tackle the issue of
the alleged encroachment into DOE’s domain later on. Suffice it to say at this point that, for the
purpose of hearing all sides and considering the transcendental importance of this case, we will also
allow DOE’s intervention.

The Injunctive Writs Are Not Impediments To The Enforcement Of Ordinance No. 8027

Under Rule 65, Section 359 of the Rules of Court, a petition for mandamus may be filed when any
tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which
the law specifically enjoins as a duty resulting from an office, trust or station. According to the oil
companies, respondent did not unlawfully fail or neglect to enforce Ordinance No. 8027 because he
was lawfully prevented from doing so by virtue of the injunctive writs and status quo order issued by
the RTC of Manila, Branches 39 and 42.

First, we note that while Chevron and Shell still have in their favor the writs of preliminary injunction
and preliminary mandatory injunction, the status quo order in favor of Petron is no longer in effect
since the court granted the joint motion of the parties to withdraw the complaint and counterclaim. 60

Second, the original parties failed to inform the Court about these injunctive writs. Respondent (who
was also impleaded as a party in the RTC cases) defends himself by saying that he informed the
court of the pendency of the civil cases and that a TRO was issued by the RTC in the consolidated
cases filed by Chevron and Shell. It is true that had the oil companies only intervened much earlier,
the Court would not have been left in the dark about these facts. Nevertheless, respondent should
have updated the Court, by way of manifestation, on such a relevant matter.

In his memorandum, respondent mentioned the issuance of a TRO. Under Section 5 of Rule 58 of
the Rules of Court, a TRO issued by the RTC is effective only for a period of 20 days. This is why, in
our March 7, 2007 decision, we presumed with certainty that this had already lapsed. 61 Respondent
also mentioned the grant of injunctive writs in his rejoinder which the Court, however, expunged for
being a prohibited pleading. The parties and their counsels were clearly remiss in their duties to this
Court.

In resolving controversies, courts can only consider facts and issues pleaded by the
parties.62 Courts, as well as magistrates presiding over them are not omniscient. They can only act
on the facts and issues presented before them in appropriate pleadings. They may not even
substitute their own personal knowledge for evidence. Nor may they take notice of matters except
those expressly provided as subjects of mandatory judicial notice.

We now proceed to the issue of whether the injunctive writs are legal impediments to the
enforcement of Ordinance No. 8027.

Section 3, Rule 58 of the Rules of Court enumerates the grounds for the issuance of a writ of
preliminary injunction:

SEC. 3. Grounds for issuance of preliminary injunction. ― A preliminary injunction may be

granted when it is established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief
consists in restraining the commission or continuance of the act or acts complained of, or in
requiring the performance of an act or acts, either for a limited period or perpetually;

(b) That the commission, continuance or nonperformance of the act or acts complained of
during the litigation would probably work injustice to the applicant; or

(g) IThat a party, court, agency or a person is doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some act or acts probably in violation of the rights of the
applicant respecting the subject of the action or proceeding, and tending to render the
judgment ineffectual.

There are two requisites for the issuance of a preliminary injunction: (1) the right to be protected
exists prima facie and (2) the acts sought to be enjoined are violative of that right. It must be proven
that the violation sought to be prevented will cause an irreparable injustice.
The act sought to be restrained here was the enforcement of Ordinance No. 8027. It is a settled rule
that an ordinance enjoys the presumption of validity and, as such, cannot be restrained by
injunction.63 Nevertheless, when the validity of the ordinance is assailed, the courts are not precluded
from issuing an injunctive writ against its enforcement. However, we have declared that the issuance
of said writ is proper only when:

... the petitioner assailing the ordinance has made out a case of unconstitutionality
strong enough to overcome, in the mind of the judge, the presumption of validity, in
addition to a showing of a clear legal right to the remedy sought.... 64 (Emphasis supplied)

Judge Reynaldo G. Ros, in his order dated May 19, 2003, stated his basis for issuing the injunctive
writs:

The Court, in resolving whether or not a Writ of Preliminary Injunction or Preliminary

Mandatory Injunction should be issued, is guided by the following requirements: (1) a clear
legal right of the complainant; (2) a violation of that right; and (3) a permanent and urgent
necessity for the Writ to prevent serious damage. The Court believes that these requisites
are present in these cases.

There is no doubt that the plaintiff/petitioners have been legitimately operating their business
in the Pandacan Terminal for many years and they have made substantial capital investment
therein. Every year they were issued Business Permits by the City of Manila. Its operations
have not been declared illegal or contrary to law or morals. In fact, because of its vital
importance to the national economy, it was included in the Investment Priorities Plan as
mandated under the "Downstream Oil Industry Deregulation Act of 1988 (R.A. 8479). As a
lawful business, the plaintiff/petitioners have a right, therefore, to continue their operation in
the Pandacan Terminal and the right to protect their investments. This is a clear and
unmistakable right of the plaintiff/petitioners.

The enactment, therefore, of City Ordinance No. 8027 passed by the City Council of Manila
reclassifying the area where the Pandacan Terminal is located from Industrial II to
Commercial I and requiring the plaintiff/petitioners to cease and desist from the operation of
their business has certainly violated the rights of the plaintiff/petitioners to continue their
legitimate business in the Pandacan Terminal and deprived them of their huge investments
they put up therein. Thus, before the Court, therefore, determines whether the Ordinance in
question is valid or not, a Writ of Preliminary Injunction and a Writ of Mandatory Injunction be
issued to prevent serious and irreparable damage to plaintiff/petitioners. 65

Nowhere in the judge’s discussion can we see that, in addition to a showing of a clear legal
right of Chevron and Shell to the remedy sought, he was convinced that they had made out a
case of unconstitutionality or invalidity strong enough to overcome the presumption of
validity of the ordinance. Statutes and ordinances are presumed valid unless and until the courts
declare the contrary in clear and unequivocal terms.66 The mere fact that the ordinance is alleged to
be unconstitutional or invalid will not entitle a party to have its enforcement enjoined. 67 The
presumption is all in favor of validity. The reason for this is obvious:

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 . . . 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. 68

X—x—x

...[Courts] accord the presumption of constitutionality to legislative enactments, not only

because the legislature is presumed to abide by the Constitution but also because the
judiciary[,] in the determination of actual cases and controversies[,] must reflect the wisdom
and justice of the people as expressed through their representatives in the executive and
legislative departments of the government.69

The oil companies argue that this presumption must be set aside when the invalidity or
unreasonableness appears on the face of the ordinance itself. 70 We see no reason to set aside the
presumption. The ordinance, on its face, does not at all appear to be unconstitutional. It reclassified
the subject area from industrial to commercial. Prima facie, this power is within the power of
municipal corporations:

The power of municipal corporations to divide their territory into industrial, commercial and
residential zones is recognized in almost all jurisdictions inasmuch as it is derived from the
police power itself and is exercised for the protection and benefit of their inhabitants. 71

X—x—x

There can be no doubt that the City of Manila has the power to divide its territory into
residential and industrial zones, and to prescribe that offensive and unwholesome trades and
occupations are to be established exclusively in the latter zone.

xxx       xxx       xxx

Likewise, it cannot be denied that the City of Manila has the authority, derived from the police
power, of forbidding the appellant to continue the manufacture of toyo in the zone where it is
now situated, which has been declared residential.... 72

Courts will not invalidate an ordinance unless it clearly appears that it is unconstitutional. There is no
such showing here. Therefore, the injunctive writs issued in the Manila RTC’s May 19, 2003 order
had no leg to stand on.

We are aware that the issuance of these injunctive writs is not being assailed as tainted with grave
abuse of discretion. However, we are confronted with the question of whether these writs issued by
a lower court are impediments to the enforcement of Ordinance No. 8027 (which is the subject of
the mandamus petition). As already discussed, we rule in the negative.

Ordinance No. 8027 Was Not Superseded By Ordinance No. 8119

The March 7, 2007 decision did not take into consideration the passage of Ordinance No. 8119
entitled "An Ordinance Adopting the Manila Comprehensive Land Use Plan and Zoning Regulations
of 2006 and Providing for the Administration, Enforcement and Amendment thereto" which was
approved by respondent on June 16, 2006. The simple reason was that the Court was never
informed about this ordinance.
While courts are required to take judicial notice of the laws enacted by Congress, the rule with
respect to local ordinances is different. Ordinances are not included in the enumeration of matters
covered by mandatory judicial notice under Section 1, Rule 129 of the Rules of Court. 73

Although, Section 50 of RA 40974 provides that:

SEC. 50 Judicial notice of ordinances. - All courts sitting in the city shall take judicial notice of
the ordinances passed by the [Sangguniang Panglungsod].

This cannot be taken to mean that this Court, since it has its seat in the City of Manila, should have
taken steps to procure a copy of the ordinance on its own, relieving the party of any duty to inform
the Court about it.

Even where there is a statute that requires a court to take judicial notice of municipal ordinances, a
court is not required to take judicial notice of ordinances that are not before it and to which it does
not have access. The party asking the court to take judicial notice is obligated to supply the court
with the full text of the rules the party desires it to have notice of. 75 Counsel should take the initiative
in requesting that a trial court take judicial notice of an ordinance even where a statute requires
courts to take judicial notice of local ordinances.76

The intent of a statute requiring a court to take judicial notice of a local ordinance is to remove any
discretion a court might have in determining whether or not to take notice of an ordinance. Such a
statute does not direct the court to act on its own in obtaining evidence for the record and a party
must make the ordinance available to the court for it to take notice. 77

In its defense, respondent claimed that he did not inform the Court about the enactment of
Ordinance No. 8119 because he believed that it was different from Ordinance No. 8027 and that the
two were not inconsistent with each other.78

In the same way that we deem the intervenors’ late intervention in this case unjustified, we find the
failure of respondent, who was an original party here, inexcusable.

The Rule On Judicial Admissions Is Not Applicable Against Respondent

The oil companies assert that respondent judicially admitted that Ordinance No. 8027 was repealed
by Ordinance No. 8119 in civil case no. 03-106379 (where Petron assailed the constitutionality of
Ordinance No. 8027) when the parties in their joint motion to withdraw complaint and counterclaim
stated that "the issue ...has been rendered moot and academic by virtue of the passage of
[Ordinance No. 8119]."79 They contend that such admission worked as an estoppel against the
respondent.

Respondent countered that this stipulation simply meant that Petron was recognizing the validity and
legality of Ordinance No. 8027 and that it had conceded the issue of said ordinance’s
constitutionality, opting instead to question the validity of Ordinance No. 8119. 80 The oil companies
deny this and further argue that respondent, in his answer in civil case no. 06-115334 (where
Chevron and Shell are asking for the nullification of Ordinance No. 8119), expressly stated that
Ordinance No. 8119 replaced Ordinance No. 8027: 81

... Under Ordinance No. 8027, businesses whose uses are not in accord with the
reclassification were given six months to cease [their] operation. Ordinance No. 8119,
which in effect, replaced Ordinance [No.] 8027, merely took note of the time frame
 provided for in Ordinance No. 8119.... Ordinance No. 8119 thus provided for an even longer
term, that is[,] seven years;82 (Emphasis supplied)

Rule 129, Section 4 of the Rules of Court provides:

Section 4. Judicial admissions. ― An admission, verbal or written, made by a party in the

course of the proceedings in the same case, does not require proof. The admission may be
contradicted only by showing that it was made through palpable mistake or that no such
admission was made. (Emphasis supplied)

While it is true that a party making a judicial admission cannot subsequently take a position contrary
to or inconsistent with what was pleaded,83 the aforestated rule is not applicable here. Respondent
made the statements regarding the ordinances in civil case nos. 03-106379 and 06-115334 which
are not "the same" as this case before us.84 To constitute a judicial admission, the admission must be
made in the same case in which it is offered.

Hence, respondent is not estopped from claiming that Ordinance No. 8119 did not supersede
Ordinance No. 8027. On the contrary, it is the oil companies which should be considered estopped.
They rely on the argument that Ordinance No. 8119 superseded Ordinance No. 8027 but, at the
same time, also impugn its (8119’s) validity. We frown on the adoption of inconsistent positions and
distrust any attempt at clever positioning under one or the other on the basis of what appears
advantageous at the moment. Parties cannot take vacillating or contrary positions regarding the
validity of a statute85 or ordinance. Nonetheless, we will look into the merits of the argument of
implied repeal.

Ordinance No. 8119 Did Not Impliedly Repeal Ordinance No. 8027

Both the oil companies and DOE argue that Ordinance No. 8119 repealed Ordinance No. 8027.
They assert that although there was no express repeal 86 of Ordinance No. 8027, Ordinance No. 8119
impliedly repealed it.

According to the oil companies, Ordinance No. 8119 reclassified the area covering the Pandacan
Terminals to "High Density Residential/Mixed Use Zone (R-3/MXD)" 87 whereas Ordinance No. 8027
reclassified the same area from Industrial II to Commercial I:

SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public safety,
and general welfare of the residents of Pandacan and Sta. Ana as well as its adjoining areas, the
land use of [those] portions of land bounded by the Pasig River in the north, PNR Railroad Track in
the east, Beata St. in the south, Palumpong St. in the southwest, and Estero de Pancacan in the
west[,] PNR Railroad in the northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in
the southeast and Dr. M.L. Carreon in the southwest. The area of Punta, Sta. Ana bounded by the
Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo Street, are hereby reclassified from
Industrial II to Commercial I. (Emphasis supplied)

Moreover, Ordinance No. 8119 provides for a phase-out of seven years:

SEC. 72. Existing Non-Conforming Uses and Buildings. - The lawful use of any building,
structure or land at the time of the adoption of this Ordinance may be continued, although
such use does not conform with the provision of the Ordinance, provided:

xxx       xxx       xxx

 (g) In case the non-conforming use is an industrial use:

xxx       xxx       xxx

d. The land use classified as non-conforming shall program the phase-out and
relocation of the non-conforming use within seven (7) years from the date of
effectivity of this Ordinance. (Emphasis supplied)

This is opposed to Ordinance No. 8027 which compels affected entities to vacate the area within six
months from the effectivity of the ordinance:

SEC. 3. Owners or operators of industries and other businesses, the operation of which are
no longer permitted under Section 1 hereof, are hereby given a period of six (6) months from
the date of effectivity of this Ordinance within which to cease and desist from the operation of
businesses which are hereby in consequence, disallowed.

Ordinance No. 8119 also designated the Pandacan oil depot area as a "Planned Unit
Development/Overlay Zone (O-PUD)":

SEC. 23. Use Regulations in Planned Unit Development/Overlay Zone (O-PUD). – O-PUD
Zones are identified specific sites in the City of Manila wherein the project site is
comprehensively planned as an entity via unitary site plan which permits flexibility in
planning/ design, building siting, complementarily of building types and land uses, usable
open spaces and the preservation of significant natural land features, pursuant to regulations
specified for each particular PUD. Enumerated below are identified PUD:

xxx       xxx       xxx

6. Pandacan Oil Depot Area

xxx       xxx       xxx

Enumerated below are the allowable uses:

1. all uses allowed in all zones where it is located

2. the [Land Use Intensity Control (LUIC)] under which zones are located shall, in all
instances be complied with

3. the validity of the prescribed LUIC shall only be [superseded] by the development controls
and regulations specified for each PUD as provided for each PUD as provided for by the
masterplan of respective PUDs.88 (Emphasis supplied)

Respondent claims that in passing Ordinance No. 8119, the Sanggunian did not intend to repeal
Ordinance No. 8027 but meant instead to carry over 8027’s provisions to 8119 for the purpose of
making Ordinance No. 8027 applicable to the oil companies even after the passage of Ordinance
No. 8119.89 He quotes an excerpt from the minutes of the July 27, 2004 session of
the Sanggunian during the first reading of Ordinance No. 8119:

Member GARCIA: Your Honor, iyong patungkol po roon sa oil depot doon sa amin sa Sixth
District sa Pandacan, wala pong nakalagay eith sa ordinansa rito na taliwas o kakaiba roon
 sa ordinansang ipinasa noong nakaraang Konseho, iyong Ordinance No. 8027. So kung ano
po ang nandirito sa ordinansa na ipinasa ninyo last time, iyon lang po ang ni-lift eithe at
inilagay eith. At eith eith ordinansang …iyong naipasa ng huling Konseho, niri-classify [ninyo]
from Industrial II to Commercial C-1 ang area ng Pandacan kung nasaan ang oil depot. So
ini-lift lang po [eithe] iyong definition, density, at saka po yon pong … ng… noong ordinansa
ninyo na siya eith naming inilagay eith, iniba lang po naming iyong title. So wala po kaming
binago na taliwas o nailagay na taliwas doon sa ordinansang ipinasa ninyo, ni-lift lang
po [eithe] from Ordinance No. 8027."90 (Emphasis supplied)

We agree with respondent.

Repeal by implication proceeds on the premise that where a statute of later date clearly reveals the
intention of the legislature to abrogate a prior act on the subject, that intention must be given effect. 91

There are two kinds of implied repeal. The first is: where the provisions in the two acts on the same
subject matter are irreconcilably contradictory, the latter act, to the extent of the conflict, constitutes
an implied repeal of the earlier one. 92 The second is: if the later act covers the whole subject of the
earlier one and is clearly intended as a substitute, it will operate to repeal the earlier law. 93 The oil
companies argue that the situation here falls under the first category.

Implied repeals are not favored and will not be so declared unless the intent of the legislators is
manifest.94 As statutes and ordinances are presumed to be passed only after careful deliberation and
with knowledge of all existing ones on the subject, it follows that, in passing a law, the legislature did
not intend to interfere with or abrogate a former law relating to the same subject matter. 95 If the intent
to repeal is not clear, the later act should be construed as a continuation of, and not a substitute for,
the earlier act.96

These standards are deeply enshrined in our jurisprudence. We disagree that, in enacting Ordinance
No. 8119, there was any indication of the legislative purpose to repeal Ordinance No. 8027. 97 The
excerpt quoted above is proof that there was never such an intent. While it is true that both
ordinances relate to the same subject matter, i.e. classification of the land use of the area where
Pandacan oil depot is located, if there is no intent to repeal the earlier enactment, every effort at
reasonable construction must be made to reconcile the ordinances so that both can be given effect:

The fact that a later enactment may relate to the same subject matter as that of an earlier
statute is not of itself sufficient to cause an implied repeal of the prior act, since the new
statute may merely be cumulative or a continuation of the old one. What is necessary is a
manifest indication of legislative purpose to repeal. 98

For the first kind of implied repeal, there must be an irreconcilable conflict between the two
ordinances. There is no conflict between the two ordinances. Ordinance No. 8027 reclassified the
Pandacan area from Industrial II to Commercial I. Ordinance No. 8119, in Section 23, designated it
as a "Planned Unit Development/Overlay Zone (O-PUD)." In its Annex C which defined the zone
boundaries,99 the Pandacan area was shown to be within the "High Density Residential/Mixed Use
Zone (R-3/MXD)." These zone classifications in Ordinance No. 8119 are not inconsistent with the
reclassification of the Pandacan area from Industrial to Commercial in Ordinance No. 8027. The "O-
PUD" classification merely made Pandacan a "project site ... comprehensively planned as an entity
via unitary site plan which permits flexibility in planning/design, building siting, complementarity of
building types and land uses, usable open spaces and the preservation of significant natural land
features...."100 Its classification as "R-3/MXD" means that it should "be used primarily for high-rise
housing/dwelling purposes and limited complementary/supplementary trade, services and business
activities."101 There is no conflict since both ordinances actually have a common objective, i.e., to
shift the zoning classification from industrial to commercial (Ordinance No. 8027) or mixed
residential/commercial (Ordinance No. 8119).

Moreover, it is a well-settled rule in statutory construction that a subsequent general law does not
repeal a prior special law on the same subject unless it clearly appears that the legislature has
intended by the latter general act to modify or repeal the earlier special law. Generalia specialibus
non derogant (a general law does not nullify a specific or special law).102 This is so even if the
provisions of the general law are sufficiently comprehensive to include what was set forth in the
special act.103 The special act and the general law must stand together, one as the law of the
particular subject and the other as the law of general application. 104 The special law must be taken as
intended to constitute an exception to, or a qualification of, the general act or provision. 105

The reason for this is that the legislature, in passing a law of special character, considers
and makes special provisions for the particular circumstances dealt with by the special law.
This being so, the legislature, by adopting a general law containing provisions repugnant to
those of the special law and without making any mention of its intention to amend or modify
such special law, cannot be deemed to have intended an amendment, repeal or modification
of the latter.106

Ordinance No. 8027 is a special law107 since it deals specifically with a certain area described therein
(the Pandacan oil depot area) whereas Ordinance No. 8119 can be considered a general law 108 as it
covers the entire city of Manila.

The oil companies assert that even if Ordinance No. 8027 is a special law, the existence of an all-
encompassing repealing clause in Ordinance No. 8119 evinces an intent on the part of
the Sanggunian to repeal the earlier ordinance:

Sec. 84. Repealing Clause. – All ordinances, rules, regulations in conflict with the provisions
of this Ordinance are hereby repealed; PROVIDED, That the rights that are vested upon the
effectivity of this Ordinance shall not be impaired.

They cited Hospicio de San Jose de Barili, Cebu City v. Department of Agrarian Reform:109

The presence of such general repealing clause in a later statute clearly indicates the
legislative intent to repeal all prior inconsistent laws on the subject matter, whether the prior
law is a general law or a special law... Without such a clause, a later general law will
ordinarily not repeal a prior special law on the same subject. But with such clause contained
in the subsequent general law, the prior special law will be deemed repealed, as the clause
is a clear legislative intent to bring about that result. 110

This ruling in not applicable here. The repealing clause of Ordinance No. 8119 cannot be taken to
indicate the legislative intent to repeal all prior inconsistent laws on the subject matter, including
Ordinance No. 8027, a special enactment, since the aforequoted minutes (an official record of the
discussions in the Sanggunian) actually indicated the clear intent to preserve the provisions of
Ordinance No. 8027.

To summarize, the conflict between the two ordinances is more apparent than real. The two
ordinances can be reconciled. Ordinance No. 8027 is applicable to the area particularly described
therein whereas Ordinance No. 8119 is applicable to the entire City of Manila.

Mandamus Lies To Compel Respondent Mayor To Enforce Ordinance No. 8027

The oil companies insist that mandamus does not lie against respondent in consideration of the
separation of powers of the executive and judiciary. 111 This argument is misplaced. Indeed,

[the] Courts will not interfere by mandamus proceedings with the legislative [or executive
departments] of the government in the legitimate exercise of its powers, except to enforce
mere ministerial acts required by law to be performed by some officer
thereof.112 (Emphasis Supplied)

since this is the function of a writ of mandamus, which is the power to compel "the performance of
an act which the law specifically enjoins as a duty resulting from office, trust or station." 113

They also argue that petitioners had a plain, speedy and adequate remedy to compel respondent to
enforce Ordinance No. 8027 which was to seek relief from the President of the Philippines through
the Secretary of the Department of Interior and Local Government (DILG) by virtue of the President’s
power of supervision over local government units. Again, we disagree. A party need not go first to
the DILG in order to compel the enforcement of an ordinance. This suggested process would be
unreasonably long, tedious and consequently injurious to the interests of the local government unit
(LGU) and its constituents whose welfare is sought to be protected. Besides, petitioners’ resort to an
original action for mandamus before this Court is undeniably allowed by the Constitution. 114

Ordinance No. 8027 Is Constitutional And Valid

Having ruled that there is no impediment to the enforcement of Ordinance No. 8027, we now
proceed to make a definitive ruling on its constitutionality and validity.

The tests of a valid ordinance are well established. For an ordinance to be valid, it must not only be
within the corporate powers of the LGU to enact and 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. 115

The City of Manila Has The Power To Enact Ordinance No. 8027

Ordinance No. 8027 was passed by the Sangguniang Panlungsod of Manila in the exercise of its
police power. Police power is the plenary power vested in the legislature to make statutes and
ordinances to promote the health, morals, peace, education, good order or safety and general
welfare of the people.116 This power flows from the recognition that salus populi est suprema lex (the
welfare of the people is the supreme law).117 While police power rests primarily with the national
legislature, such power may be delegated. 118 Section 16 of the LGC, known as the general welfare
clause, encapsulates the delegated police power to local governments: 119

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.
LGUs like the City of Manila exercise police power through their respective legislative bodies, in this
case, the Sangguniang Panlungsod or the city council. Specifically, the Sanggunian can enact
ordinances for the general welfare of the city:

Section. 458. – Powers, Duties, Functions and Compensation. – (a) The sangguniang

panglungsod, as the legislative branch 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 xxxx

This police power was also provided for in RA 409 or the Revised Charter of the City of Manila:

Section 18. Legislative powers. — The [City Council] shall have the following legislative
powers:

xxx       xxx       xxx

(g) 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 xxxx120

Specifically, the Sanggunian has the power to "reclassify land within the jurisdiction of the city." 121

The Enactment Of Ordinance No. 8027 Is A Legitimate Exercise Of Police Power

As with the State, local governments may be considered as having properly exercised their police
power only if the following requisites are met: (1) the interests of the public generally, as
distinguished from those of a particular class, require its exercise and (2) the means employed are
reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon
individuals. In short, there must be a concurrence of a lawful subject and a lawful method. 122

Ordinance No. 8027 was enacted "for the purpose of promoting sound urban planning, ensuring
health, public safety and general welfare" 123 of the residents of Manila. The Sanggunian was impelled
to take measures to protect the residents of Manila from catastrophic devastation in case of a
terrorist attack on the Pandacan Terminals. Towards this objective, the Sanggunian reclassified the
area defined in the ordinance from industrial to commercial.

The following facts were found by the Committee on Housing, Resettlement and Urban Development
of the City of Manila which recommended the approval of the ordinance:

(1) the depot facilities contained 313.5 million liters of highly flammable and highly volatile products
which include petroleum gas, liquefied petroleum gas, aviation fuel, diesel, gasoline, kerosene and
fuel oil among others;

(2) the depot is open to attack through land, water or air;

(3) it is situated in a densely populated place and near Malacañang Palace and

(4) in case of an explosion or conflagration in the depot, the fire could spread to the neighboring
communities.124
The ordinance was intended to safeguard the rights to life, security and safety of all the inhabitants
of Manila and not just of a particular class.125 The depot is perceived, rightly or wrongly, as a
representation of western interests which means that it is a terrorist target. As long as it there is such
a target in their midst, the residents of Manila are not safe. It therefore became necessary to remove
these terminals to dissipate the threat. According to respondent:

Such a public need became apparent after the 9/11 incident which showed that what was
perceived to be impossible to happen, to the most powerful country in the world at that, is
actually possible. The destruction of property and the loss of thousands of lives on that
fateful day became the impetus for a public need. In the aftermath of the 9/11 tragedy, the
threats of terrorism continued [such] that it became imperative for governments to take
measures to combat their effects.126

Wide discretion is vested on the legislative authority to determine not only what the interests of the
public require but also what measures are necessary for the protection of such interests. 127 Clearly,
the Sanggunian was in the best position to determine the needs of its constituents.

In the exercise of police power, property rights of individuals may be subjected to restraints and
burdens in order to fulfill the objectives of the government. 128 Otherwise stated, the government may
enact legislation that may interfere with personal liberty, property, lawful businesses and occupations
to promote the general welfare.129 However, the interference must be reasonable and not arbitrary.
And to forestall arbitrariness, the methods or means used to protect public health, morals, safety or
welfare must have a reasonable relation to the end in view.130

The means adopted by the Sanggunian was the enactment of a zoning ordinance which reclassified
the area where the depot is situated from industrial to commercial. A zoning ordinance is defined as
a local city or municipal legislation which logically arranges, prescribes, defines and apportions a
given political subdivision into specific land uses as present and future projection of needs. 131 As a
result of the zoning, the continued operation of the businesses of the oil companies in their present
location will no longer be permitted. The power to establish zones for industrial, commercial and
residential uses is derived from the police power itself and is exercised for the protection and benefit
of the residents of a locality.132 Consequently, the enactment of Ordinance No. 8027 is within the
power of the Sangguniang Panlungsod of the City of Manila and any resulting burden on those
affected cannot be said to be unjust:

There can be no doubt that the City of Manila has the power to divide its territory into
residential and industrial zones, and to prescribe that offensive and unwholesome trades and
occupations are to be established exclusively in the latter zone.

"The benefits to be derived by cities adopting such regulations (zoning) may be summarized
as follows: They attract a desirable and assure a permanent citizenship; they foster pride in
and attachment to the city; they promote happiness and contentment; they stabilize the use
and value of property and promote the peace, [tranquility], and good order of the city. We do
not hesitate to say that the attainment of these objects affords a legitimate field for the
exercise of the police power. He who owns property in such a district is not deprived of its
use by such regulations. He may use it for the purposes to which the section in which it is
located is dedicated. That he shall not be permitted to use it to the desecration of the
community constitutes no unreasonable or permanent hardship and results in no unjust
burden."

xxx       xxx       xxx

 "The 14th Amendment protects the citizen in his right to engage in any lawful business, but it
does not prevent legislation intended to regulate useful occupations which, because of their
nature or location, may prove injurious or offensive to the public." 133

We entertain no doubt that Ordinance No. 8027 is a valid police power measure because there is a
concurrence of lawful subject and lawful method.

Ordinance No. 8027 Is Not Unfair, Oppressive Or Confiscatory Which Amounts To Taking
Without Compensation

According to the oil companies, Ordinance No. 8027 is unfair and oppressive as it does not only
regulate but also absolutely prohibits them from conducting operations in the City of Manila.
Respondent counters that this is not accurate since the ordinance merely prohibits the oil companies
from operating their businesses in the Pandacan area.

Indeed, the ordinance expressly delineated in its title and in Section 1 what it pertained to.
Therefore, the oil companies’ contention is not supported by the text of the ordinance. Respondent
succinctly stated that:

The oil companies are not forbidden to do business in the City of Manila. They may still very
well do so, except that their oil storage facilities are no longer allowed in the Pandacan area.
Certainly, there are other places in the City of Manila where they can conduct this specific
kind of business. Ordinance No. 8027 did not render the oil companies illegal. The assailed
ordinance affects the oil companies business only in so far as the Pandacan area is
concerned.134

The oil companies are not prohibited from doing business in other appropriate zones in Manila. The
City of Manila merely exercised its power to regulate the businesses and industries in the zones it
established:

As to the contention that the power to regulate does not include the power to prohibit, it will
be seen that the ordinance copied above does not prohibit the installation of motor engines
within the municipality of Cabanatuan but only within the zone therein fixed. If the municipal
council of Cabanatuan is authorized to establish said zone, it is also authorized to provide
what kind of engines may be installed therein. In banning the installation in said zone of all
engines not excepted in the ordinance, the municipal council of Cabanatuan did no more
than regulate their installation by means of zonification. 135

The oil companies aver that the ordinance is unfair and oppressive because they have invested
billions of pesos in the depot. 136 Its forced closure will result in huge losses in income and
tremendous costs in constructing new facilities.

Their contention has no merit. In the exercise of police power, there is a limitation on or restriction of
property interests to promote public welfare which involves no compensable taking. Compensation is
necessary only when the state’s power of eminent domain is exercised. In eminent domain, property
is appropriated and applied to some public purpose. Property condemned under the exercise of
police power, on the other hand, is noxious or intended for a noxious or forbidden purpose and,
consequently, is not compensable. 137 The restriction imposed to protect lives, public health and
safety from danger is not a taking. It is merely the prohibition or abatement of a noxious use which
interferes with paramount rights of the public.
Property has not only an individual function, insofar as it has to provide for the needs of the owner,
but also a social function insofar as it has to provide for the needs of the other members of
society.138 The principle is this:

Police power proceeds from the principle that every holder of property, however absolute
and unqualified may be his title, holds it under the implied liability that his use of it shall not
be injurious to the equal enjoyment of others having an equal right to the enjoyment of their
property, nor injurious to the right of the community. Rights of property, like all other social
and conventional rights, are subject to reasonable limitations in their enjoyment as shall
prevent them from being injurious, and to such reasonable restraints and regulations
established by law as the legislature, under the governing and controlling power vested in
them by the constitution, may think necessary and expedient. 139

In the regulation of the use of the property, nobody else acquires the use or interest therein, hence
there is no compensable taking.140 In this case, the properties of the oil companies and other
businesses situated in the affected area remain theirs. Only their use is restricted although they can
be applied to other profitable uses permitted in the commercial zone.

Ordinance No. 8027 Is Not Partial And Discriminatory

The oil companies take the position that the ordinance has discriminated against and singled out the
Pandacan Terminals despite the fact that the Pandacan area is congested with buildings and
residences that do not comply with the National Building Code, Fire Code and Health and Sanitation
Code.141

This issue should not detain us for long. An ordinance based on reasonable classification does not
violate the constitutional guaranty of the equal protection of the law. 142 The requirements for a valid
and reasonable classification are: (1) it must rest on substantial distinctions; (2) it must be germane
to the purpose of the law; (3) it must not be limited to existing conditions only and (4) it must apply
equally to all members of the same class.143

The law may treat and regulate one class differently from another class provided there are real and
substantial differences to distinguish one class from another. 144 Here, there is a reasonable
classification. We reiterate that what the ordinance seeks to prevent is a catastrophic devastation
that will result from a terrorist attack. Unlike the depot, the surrounding community is not a high-
value terrorist target. Any damage caused by fire or explosion occurring in those areas would be
nothing compared to the damage caused by a fire or explosion in the depot itself. Accordingly, there
is a substantial distinction. The enactment of the ordinance which provides for the cessation of the
operations of these terminals removes the threat they pose. Therefore it is germane to the purpose
of the ordinance. The classification is not limited to the conditions existing when the ordinance was
enacted but to future conditions as well. Finally, the ordinance is applicable to all businesses and
industries in the area it delineated.

Ordinance No. 8027 is Not Inconsistent With RA 7638 And RA 8479

The oil companies and the DOE assert that Ordinance No. 8027 is unconstitutional because it
contravenes RA 7638 (DOE Act of 1992)145 and RA 8479 (Downstream Oil Industry Deregulation
Law of 1998).146 They argue that through RA 7638, the national legislature declared it a policy of the
state "to ensure a continuous, adequate, and economic supply of energy" 147 and created the DOE to
implement this policy. Thus, under Section 5 I, DOE is empowered to "establish and administer
programs for the exploration, transportation, marketing, distribution, utilization, conservation,
stockpiling, and storage of energy resources." Considering that the petroleum products contained in
the Pandacan Terminals are major and critical energy resources, they conclude that their
administration, storage, distribution and transport are of national interest and fall under DOE’s
primary and exclusive jurisdiction.148

They further assert that the terminals are necessary for the delivery of immediate and adequate
supply of oil to its recipients in the most economical way.149 Local legislation such as Ordinance No.
8027 (which effectively calls for the removal of these terminals) allegedly frustrates the state policy
of ensuring a continuous, adequate, and economic supply of energy expressed in RA 7638, a
national law.150 Likewise, the ordinance thwarts the determination of the DOE that the terminals’
operations should be merely scaled down and not discontinued. 151 They insist that this should not be
allowed considering that it has a nationwide economic impact and affects public interest
transcending the territorial jurisdiction of the City of Manila. 152

According to them, the DOE’s supervision over the oil industry under RA 7638 was subsequently
underscored by RA 8479, particularly in Section 7 thereof:

SECTION 7. Promotion of Fair Trade Practices. ― The Department of Trade and Industry
(DTI) and DOE shall take all measures to promote fair trade and prevent cartelization,
monopolies, combinations in restraint of trade, and any unfair competition in the Industry as
defined in Article 186 of the Revised Penal Code, and Articles 168 and 169 of Republic Act
No. 8293, otherwise known as the "Intellectual Property Rights Law". The DOE
shall continue to encourage certain practices in the Industry which serve the public
interest and are intended to achieve efficiency and cost reduction, ensure continuous
supply of petroleum products, and enhance environmental protection. These practices
may include borrow-and-loan agreements, rationalized depot and manufacturing operations,
hospitality agreements, joint tanker and pipeline utilization, and joint actions on oil spill
control and fire prevention. (Emphasis supplied)

Respondent counters that DOE’s regulatory power does not preclude LGUs from exercising their
police power.153

Indeed, ordinances should not contravene existing statutes enacted by Congress. The rationale for
this was clearly explained in Magtajas vs. Pryce Properties Corp., Inc.:154

The rationale of the requirement that the ordinances should not contravene a statute is
obvious. Municipal governments are only agents of the national government. Local councils
exercise only delegated legislative powers conferred on them by Congress as the national
lawmaking body. The delegate cannot be superior to the principal or exercise powers higher
than those of the latter. It is a heresy to suggest that the local government units can undo the
acts of Congress, from which they have derived their power in the first place, and negate by
mere ordinance the mandate of the statute.

"Municipal corporations owe their origin to, and derive their powers and rights wholly from
the legislature. It breathes into them the breath of life, without which they cannot exist. As it
creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is
some constitutional limitation on the right, the legislature might, by a single act, and if we can
suppose it capable of so great a folly and so great a wrong, sweep from existence all of the
municipal corporations in the State, and the corporation could not prevent it. We know of no
limitation on the right so far as to the corporation themselves are concerned. They are, so to
phrase it, the mere tenants at will of the legislature."
 This basic 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. Without meaning to detract from that policy, we here confirm that Congress
retains control of the local government units although in significantly reduced degree now
than under our previous Constitutions. The power to create still includes the power to
destroy. The power to grant still includes the power to withhold or recall. True, there are
certain notable innovations in the Constitution, like the direct conferment on the local
government units of the power to tax, which cannot now be withdrawn by mere statute. By
and large, however, the national legislature is still the principal of the local government units,
which cannot defy its will or modify or violate it.155

The question now is whether Ordinance No. 8027 contravenes RA 7638 and RA 8479. It does not.

Under Section 5 I of RA 7638, DOE was given the power to "establish and administer programs for
the exploration, transportation, marketing, distribution, utilization, conservation, stockpiling, and
storage of energy resources." On the other hand, under Section 7 of RA 8749, the DOE "shall
continue to encourage certain practices in the Industry which serve the public interest and are
intended to achieve efficiency and cost reduction, ensure continuous supply of petroleum products."
Nothing in these statutes prohibits the City of Manila from enacting ordinances in the exercise of its
police power.

The principle of local autonomy is enshrined in and zealously protected under the Constitution. In
Article II, Section 25 thereof, the people expressly adopted the following policy:

Section 25. The State shall ensure the autonomy of local governments.

An entire article (Article X) of the Constitution has been devoted to guaranteeing and promoting the
autonomy of LGUs. The LGC was specially promulgated by Congress to ensure the autonomy of
local governments as mandated by the Constitution:

Sec. 2. Declaration of Policy. ― (a) It is hereby declared the policy of the State that the
territorial and political subdivisions of the State shall enjoy genuine and meaningful
local autonomy to enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the attainment of national
goals. Toward this end, the State shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the National Government to the local
government units. (Emphasis supplied)

We do not see how the laws relied upon by the oil companies and DOE stripped the City of Manila of
its power to enact ordinances in the exercise of its police power and to reclassify the land uses
within its jurisdiction. To guide us, we shall make a brief survey of our decisions where the police
power measure of the LGU clashed with national laws.

In Tan v. Pereña,156 the Court ruled that Ordinance No. 7 enacted by the municipality of
Daanbantayan, Cebu allowing the operation of three cockpits was invalid for violating PD 449 (or the
Cockfighting Law of 1974) which permitted only one cockpit per municipality.

In Batangas CATV, Inc. v. Court of Appeals,157 the Sangguniang Panlungsod of Batangas City

enacted Resolution No. 210 granting Batangas CATV, Inc. a permit to operate a cable television
(CATV) system in Batangas City. The Court held that the LGU did not have the authority to grant
franchises to operate a CATV system because it was the National Telecommunications Commission
(NTC) that had the power under EO Nos. 205 and 436 to regulate CATV operations. EO 205
mandated the NTC to grant certificates of authority to CATV operators while EO 436 vested on the
NTC the power to regulate and supervise the CATV industry.

In Lina, Jr. v. Paño,158 we held that Kapasiyahan Bilang 508, Taon 1995 of the Sangguniang
Panlalawigan of Laguna could not be used as justification to prohibit lotto in the municipality of San
Pedro, Laguna because lotto was duly authorized by RA 1169, as amended by BP 42. This law
granted a franchise to the Philippine Charity Sweepstakes Office and allowed it to operate lotteries.

In Magtajas v. Pryce Properties Corp., Inc.,159 the Sangguniang Panlungsod of Cagayan de Oro City

passed Ordinance Nos. 3353 and 3375-93 prohibiting the operation of casinos in the city. We ruled
that these ordinances were void for contravening PD 1869 or the charter of the Philippine
Amusements and Gaming Corporation which had the power to operate casinos.

The common dominator of all of these cases is that the national laws were clearly and expressly in
conflict with the ordinances/resolutions of the LGUs. The inconsistencies were so patent that there
was no room for doubt. This is not the case here.

The laws cited merely gave DOE general powers to "establish and administer programs for the
exploration, transportation, marketing, distribution, utilization, conservation, stockpiling, and storage
of energy resources" and "to encourage certain practices in the [oil] industry which serve the public
interest and are intended to achieve efficiency and cost reduction, ensure continuous supply of
petroleum products." These powers can be exercised without emasculating the LGUs of the powers
granted them. When these ambiguous powers are pitted against the unequivocal power of the LGU
to enact police power and zoning ordinances for the general welfare of its constituents, it is not
difficult to rule in favor of the latter. Considering that the powers of the DOE regarding the Pandacan
Terminals are not categorical, the doubt must be resolved in favor of the City of Manila:

SECTION 5. Rules of Interpretation. ― In the interpretation of the provisions of this Code,

the following rules shall apply:

(a) Any provision on a power of a local government unit shall be liberally interpreted in its
favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of
powers and of the lower local government unit. Any fair and reasonable doubt as to the
existence of the power shall be interpreted in favor of the local government unit concerned;

xxx       xxx       xxx

(g) IThe 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 xxxx

The least we can do to ensure genuine and meaningful local autonomy is not to force an
interpretation that negates powers explicitly granted to local governments. To rule against
the power of LGUs to reclassify areas within their jurisdiction will subvert the principle of local
autonomy guaranteed by the Constitution.160 As we have noted in earlier decisions, our
national officials should not only comply with the constitutional provisions on local autonomy
but should also appreciate the spirit and liberty upon which these provisions are based. 161

The DOE Cannot Exercise The Power Of Control Over LGUs

Another reason that militates against the DOE’s assertions is that Section 4 of Article X of the
Constitution confines the President’s power over LGUs to one of general supervision:

SECTION 4. The President of the Philippines shall exercise general supervision over local
governments. Xxxx

Consequently, the Chief Executive or his or her alter egos, cannot exercise the power of control over
them.162 Control and supervision are distinguished as follows:

[Supervision] means overseeing or the power or authority of an officer to see that

subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former
may take such action or step as prescribed by law to make them perform their duties.
Control, on the other hand, means the power of an officer to alter or modify or nullify or set
aside what a subordinate officer ha[s] done in the performance of his duties and to substitute
the judgment of the former for that of the latter. 163

Supervisory power, when contrasted with control, is the power of mere oversight over an inferior
body; it does not include any restraining authority over such body. 164 It does not allow the supervisor
to annul the acts of the subordinate.165 Here, what the DOE seeks to do is to set aside an ordinance
enacted by local officials, a power that not even its principal, the President, has. This is because:

Under our present system of government, executive power is vested in the President. The
members of the Cabinet and other executive officials are merely alter egos. As such, they
are subject to the power of control of the President, at whose will and behest they can be
removed from office; or their actions and decisions changed, suspended or reversed. In
contrast, the heads of political subdivisions are elected by the people. Their sovereign
powers emanate from the electorate, to whom they are directly accountable. By
constitutional fiat, they are subject to the President’s supervision only, not control, so long as
their acts are exercised within the sphere of their legitimate powers. By the same token, the
President may not withhold or alter any authority or power given them by the Constitution
and the law.166

Thus, the President and his or her alter egos, the department heads, cannot interfere with the
activities of local governments, so long as they act within the scope of their authority. Accordingly,
the DOE cannot substitute its own discretion for the discretion exercised by the sanggunian of the
City of Manila. In local affairs, the wisdom of local officials must prevail as long as they are acting
within the parameters of the Constitution and the law. 167

Ordinance No. 8027 Is Not Invalid For Failure To Comply With RA 7924 And EO 72

The oil companies argue that zoning ordinances of LGUs are required to be submitted to the
Metropolitan Manila Development Authority (MMDA) for review and if found to be in compliance with
its metropolitan physical framework plan and regulations, it shall endorse the same to the Housing
and Land Use Regulatory Board (HLURB). Their basis is Section 3 (e) of RA 7924: 168

SECTION 3. Scope of MMDA Services. ― Metro-wide services under the jurisdiction of

the MMDA are those services which have metro-wide impact and transcend local political
boundaries or entail huge expenditures such that it would not be viable for said services to
be provided by the individual [LGUs] comprising Metropolitan Manila. These services shall
include:
 xxx       xxx       xxx

(g) Urban renewal, zoning, and land use planning, and shelter services which include the
formulation, adoption and implementation of policies, standards, rules and regulations,
programs and projects to rationalize and optimize urban land use and provide direction to
urban growth and expansion, the rehabilitation and development of slum and blighted areas,
the development of shelter and housing facilities and the provision of necessary social
services thereof. (Emphasis supplied)

Reference was also made to Section 15 of its implementing rules:

Section 15. Linkages with HUDCC, HLURB, NHA, LGUs and Other National Government
Agencies Concerned on Urban Renewal, Zoning and Land Use Planning and Shelter
Services. Within the context of the National Housing and Urban Development Framework,
and pursuant to the national standards, guidelines and regulations formulated by the
Housing and Land Use Regulatory Board [HLURB] on land use planning and zoning, the
[MMDA] shall prepare a metropolitan physical framework plan and regulations which shall
complement and translate the socio-economic development plan for Metro Manila into
physical or spatial terms, and provide the basis for the preparation, review, integration and
implementation of local land use plans and zoning, ordinance of cities and municipalities in
the area.

Said framework plan and regulations shall contain, among others, planning and zoning
policies and procedures that shall be observed by local government units in the preparation
of their own plans and ordinances pursuant to Section 447 and 458 of RA 7160, as well as
the identification of sites and projects that are considered to be of national or metropolitan
significance.

Cities and municipalities shall prepare their respective land use plans and zoning
ordinances and submit the same for review and integration by the [MMDA] and
indorsement to HLURB in accordance with Executive Order No. 72 and other pertinent
laws.

In the preparation of a Metropolitan Manila physical framework plan and regulations, the
[MMDA] shall coordinate with the Housing and Urban Development Coordinating Council,
HLURB, the National Housing Authority, Intramuros Administration, and all other agencies of
the national government which are concerned with land use and zoning, urban renewal and
shelter services. (Emphasis supplied)

They also claim that EO 72169 provides that zoning ordinances of cities and municipalities of Metro
Manila are subject to review by the HLURB to ensure compliance with national standards and
guidelines. They cite Section 1, paragraphs I, (e), (f) and (g):

SECTION 1. Plan formulation or updating. ―

xxx       xxx       xxx

(g) Cities and municipalities of Metropolitan Manila shall continue to formulate or

update their respective comprehensive land use plans, in accordance with the land
use planning and zoning standards and guidelines prescribed by the HLURB
pursuant to EO 392, S. of 1990, and other pertinent national policies.
 xxx       xxx       xxx

(e) Pursuant to LOI 729, S. of 1978, EO 648, S. of 1981, and RA 7279, the comprehensive
land use plans of provinces, highly urbanized cities and independent component cities shall
be reviewed and ratified by the HLURB to ensure compliance with national standards and
guidelines.

(f) Pursuant to EO 392, S. of 1999, the comprehensive land use plans of cities and
municipalities of Metropolitan Manila shall be reviewed by the HLURB to ensure compliance
with national standards and guidelines.

(g) Said review shall be completed within three (3) months upon receipt thereof otherwise,
the same shall be deemed consistent with law, and, therefore, valid. (Emphasis supplied)

They argue that because Ordinance No. 8027 did not go through this review process, it is invalid.

The argument is flawed.

RA 7942 does not give MMDA the authority to review land use plans and zoning ordinances of cities
and municipalities. This was only found in its implementing rules which made a reference to EO 72.
EO 72 expressly refers to comprehensive land use plans (CLUPs) only. Ordinance No. 8027 is
admittedly not a CLUP nor intended to be one. Instead, it is a very specific ordinance which
reclassified the land use of a defined area in order to prevent the massive effects of a possible
terrorist attack. It is Ordinance No. 8119 which was explicitly formulated as the "Manila [CLUP] and
Zoning Ordinance of 2006." CLUPs are the ordinances which should be submitted to the MMDA for
integration in its metropolitan physical framework plan and approved by the HLURB to ensure that
they conform with national guidelines and policies.

Moreover, even assuming that the MMDA review and HLURB ratification are necessary, the oil
companies did not present any evidence to show that these were not complied with. In accordance
with the presumption of validity in favor of an ordinance, its constitutionality or legality should be
upheld in the absence of proof showing that the procedure prescribed by law was not observed. The
burden of proof is on the oil companies which already had notice that this Court was inclined to
dispose of all the issues in this case. Yet aside from their bare assertion, they did not present any
certification from the MMDA or the HLURB nor did they append these to their pleadings. Clearly,
they failed to rebut the presumption of validity of Ordinance No. 8027. 170

Conclusion

Essentially, the oil companies are fighting for their right to property. They allege that they stand to
lose billions of pesos if forced to relocate. However, based on the hierarchy of constitutionally
protected rights, the right to life enjoys precedence over the right to property. 171 The reason is
obvious: life is irreplaceable, property is not. When the state or LGU’s exercise of police power
clashes with a few individuals’ right to property, the former should prevail. 172

Both law and jurisprudence support the constitutionality and validity of Ordinance No. 8027. Without
a doubt, there are no impediments to its enforcement and implementation. Any delay is unfair to the
inhabitants of the City of Manila and its leaders who have categorically expressed their desire for the
relocation of the terminals. Their power to chart and control their own destiny and preserve their lives
and safety should not be curtailed by the intervenors’ warnings of doomsday scenarios and threats
of economic disorder if the ordinance is enforced.
Secondary to the legal reasons supporting the immediate implementation of Ordinance No. 8027 are
the policy considerations which drove Manila’s government to come up with such a measure:

... [The] oil companies still were not able to allay the apprehensions of the city regarding the
security threat in the area in general. No specific action plan or security measures were
presented that would prevent a possible large-scale terrorist or malicious attack especially an
attack aimed at Malacañang. The measures that were installed were more directed towards
their internal security and did not include the prevention of an external attack even on a
bilateral level of cooperation between these companies and the police and military.

xxx       xxx       xxx

It is not enough for the city government to be told by these oil companies that they have the
most sophisticated fire-fighting equipments and have invested millions of pesos for these
equipments. The city government wants to be assured that its residents are safe at any time
from these installations, and in the three public hearings and in their position papers, not one
statement has been said that indeed the absolute safety of the residents from the hazards
posed by these installations is assured. 173

We are also putting an end to the oil companies’ determination to prolong their stay in Pandacan
despite the objections of Manila’s residents. As early as October 2001, the oil companies signed a
MOA with the DOE obliging themselves to:

... undertake a comprehensive and comparative study ... [which] shall include the preparation
of a Master Plan, whose aim is to determine the scope and timing of the feasible location of
the Pandacan oil terminals and all associated facilities and infrastructure including
government support essential for the relocation such as the necessary transportation
infrastructure, land and right of way acquisition, resettlement of displaced residents and
environmental and social acceptability which shall be based on mutual benefit of the Parties
and the public.174

Now that they are being compelled to discontinue their operations in the Pandacan Terminals, they
cannot feign unreadiness considering that they had years to prepare for this eventuality.

Just the same, this Court is not about to provoke a crisis by ordering the immediate relocation of the
Pandacan Terminals out of its present site. The enforcement of a decision of this Court, specially
one with far-reaching consequences, should always be within the bounds of reason, in accordance
with a comprehensive and well-coordinated plan, and within a time-frame that complies with the
letter and spirit of our resolution. To this end, the oil companies have no choice but to obey the law.

A Warning To Petitioners’ Counsel

We draw the attention of the parties to a matter of grave concern to the legal profession.

Petitioners and their counsel, Atty. Samson Alcantara, submitted a four-page memorandum that
clearly contained either substance nor research. It is absolutely insulting to this Court.

We have always tended towards judicial leniency, temperance and compassion to those who suffer
from a wrong perception of what the majesty of the law means. But for a member of the bar, an
officer of the court, to file in this Court a memorandum of such unacceptable quality is an entirely
different matter.
It is indicative less of a personal shortcoming or contempt of this Court and more of a lawyer’s sorry
descent from a high sense of duty and responsibility. As a member of the bar and as an officer of the
court, a lawyer ought to be keenly aware that the chief safeguard of the body politic is respect for the
law and its magistrates.

There is nothing more effective than the written word by which counsel can persuade this Court of
the righteousness of his cause. For if truth were self-evident, a memorandum would be completely
unnecessary and superfluous.

The inability of counsel to prepare a memorandum worthy of this Court’s consideration is an ejemplo
malo to the legal profession as it betrays no genuine interest in the cause he claims to espouse. Or
did counsel think he can earn his moment of glory without the hard work and dedication called for by
his petition?

A Final Word

On Wednesday, January 23, 2008, a defective tanker containing 2,000 liters of gasoline and 14,000
liters of diesel exploded in the middle of the street a short distance from the exit gate of the
Pandacan Terminals, causing death, extensive damage and a frightening conflagration in the vicinity
of the incident. Need we say anthing about what will happen if it is the estimated 162 to 211 million
liters175 of petroleum products in the terminal complex which blow up?

WHEREFORE, the motions for leave to intervene of Chevron Philippines Inc., Petron Corporation
and Pilipinas Shell Petroleum Corporation, and the Republic of the Philippines, represented by the
Department of Energy, are hereby GRANTED. Their respective motions for reconsideration are
hereby DENIED. The Regional Trial Court, Manila, Branch 39 is ORDERED to DISMISS the
consolidated cases of Civil Case No. 03-106377 and Civil Case No. 03-106380.

We reiterate our order to respondent Mayor of the City of Manila to enforce Ordinance No. 8027. In
coordination with the appropriate agencies and other parties involved, respondent Mayor is hereby
ordered to oversee the relocation and transfer of the Pandacan Terminals out of its present site.

To ensure the orderly transfer, movement and relocation of assets and personnel, the intervenors
Chevron Philippines Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation shall, within
a non-extendible period of ninety (90) days, submit to the Regional Trial Court of Manila, Branch 39,
the comprehensive plan and relocation schedule which have allegedly been prepared. The presiding
judge of Manila RTC, Branch 39 will monitor the strict enforcement of this resolution.

Atty. Samson Alcantara is hereby ordered to explain within five (5) days from notice why he should
not be disciplined for his refusal, or inability, to file a memorandum worthy of the consideration of this
Court.

Treble costs against petitioners’ counsel, Atty. Samson Alcantara.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 161107               March 12, 2013

HON. MA. LOURDES C. FERNANDO, in her capacity as City Mayor of Marikina City,
JOSEPHINE C. EVANGELIST A, in her capacity as Chief, Permit Division, Office of the City
Engineer, and ALFONSO ESPIRITU, in his capacity as City Engineer of Marikina
City, Petitioners,
vs.
ST. SCHOLASTICA'S COLLEGE and ST. SCHOLASTICA'S ACADEMY-MARIKINA,
INC., Respondents.

DECISION

MENDOZA, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court, which
seeks to set aside the December 1, 2003 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No.
75691.

The Facts

Respondents St. Scholastica’s College (SSC) and St. Scholastica’s Academy-Marikina, Inc. (SSA-
Marikina) are educational institutions organized under the laws of the Republic of the Philippines,
with principal offices and business addresses at Leon Guinto Street, Malate, Manila, and at West
Drive, Marikina Heights, Marikina City, respectively.2

Respondent SSC is the owner of four (4) parcels of land measuring a total of 56,306.80 square
meters, located in Marikina Heights and covered by Transfer Certificate Title (TCT) No. 91537.
Located within the property are SSA-Marikina, the residence of the sisters of the Benedictine Order,
the formation house of the novices, and the retirement house for the elderly sisters. The property is
enclosed by a tall concrete perimeter fence built some thirty (30) years ago. Abutting the fence along
the West Drive are buildings, facilities, and other improvements. 3

The petitioners are the officials of the City Government of Marikina. On September 30, 1994, the
Sangguniang Panlungsod of Marikina City enacted Ordinance No. 192, 4 entitled "Regulating the
Construction of Fences and Walls in the Municipality of Marikina." In 1995 and 1998, Ordinance Nos.
2175 and 2006 were enacted to amend Sections 7 and 5, respectively. Ordinance No. 192, as
amended, is reproduced hereunder, as follows:

ORDINANCE No. 192

Series of 1994

ORDINANCE REGULATING THE CONSTRUCTION OF FENCES AND WALLS IN THE

MUNICIPALITY OF MARIKINA
WHEREAS, under Section 447.2 of Republic Act No. 7160 otherwise known as the Local
Government Code of 1991 empowers the Sangguniang Bayan as the local legislative body of the
municipality to "x x x Prescribe reasonable limits and restraints on the use of property within the
jurisdiction of the municipality, x x x";

WHEREAS the effort of the municipality to accelerate its economic and physical development,
coupled with urbanization and modernization, makes imperative the adoption of an ordinance which
shall embody up-to-date and modern technical design in the construction of fences of residential,
commercial and industrial buildings;

WHEREAS, Presidential Decree No. 1096, otherwise known as the National Building Code of the
Philippines, does not adequately provide technical guidelines for the construction of fences, in terms
of design, construction, and criteria;

WHEREAS, the adoption of such technical standards shall provide more efficient and effective
enforcement of laws on public safety and security;

WHEREAS, it has occurred in not just a few occasions that high fences or walls did not actually
discourage but, in fact, even protected burglars, robbers, and other lawless elements from the view
of outsiders once they have gained ingress into these walls, hence, fences not necessarily providing
security, but becomes itself a "security problem";

WHEREAS, to discourage, suppress or prevent the concealment of prohibited or unlawful acts

earlier enumerated, and as guardian of the people of Marikina, the municipal government seeks to
enact and implement rules and ordinances to protect and promote the health, safety and morals of
its constituents;

WHEREAS, consistent too, with the "Clean and Green Program" of the government, lowering of
fences and walls shall encourage people to plant more trees and ornamental plants in their yards,
and when visible, such trees and ornamental plants are expected to create an aura of a clean, green
and beautiful environment for Marikeños;

WHEREAS, high fences are unsightly that, in the past, people planted on sidewalks to "beautify" the
façade of their residences but, however, become hazards and obstructions to pedestrians;

WHEREAS, high and solid walls as fences are considered "un-neighborly" preventing community
members to easily communicate and socialize and deemed to create "boxed-in" mentality among the
populace;

WHEREAS, to gather as wide-range of opinions and comments on this proposal, and as a

requirement of the Local Government Code of 1991 (R.A. 7160), the Sangguniang Bayan of
Marikina invited presidents or officers of homeowners associations, and commercial and industrial
establishments in Marikina to two public hearings held on July 28, 1994 and August 25, 1994;

WHEREAS, the rationale and mechanics of the proposed ordinance were fully presented to the
attendees and no vehement objection was presented to the municipal government;

NOW, THEREFORE, BE IT ORDAINED BY THE SANGGUINANG BAYAN OF MARIKINA IN

SESSION DULY ASSEMBLED:
Section 1. Coverage: This Ordinance regulates the construction of all fences, walls and gates on lots
classified or used for residential, commercial, industrial, or special purposes.

Section 2. Definition of Terms:

a. Front Yard – refers to the area of the lot fronting a street, alley or public thoroughfare.

b. Back Yard – the part of the lot at the rear of the structure constructed therein.

c. Open fence – type of fence which allows a view of "thru-see" of the inner yard and the
improvements therein. (Examples: wrought iron, wooden lattice, cyclone wire)

d. Front gate – refers to the gate which serves as a passage of persons or vehicles fronting a
street, alley, or public thoroughfare.

Section 3. The standard height of fences or walls allowed under this ordinance are as follows:

(1) Fences on the front yard – shall be no more than one (1) meter in height. Fences in
excess of one (1) meter shall be of an open fence type, at least eighty percent (80%) see-
thru; and

(2) Fences on the side and back yard – shall be in accordance with the provisions of P.D.
1096 otherwise known as the National Building Code.

Section 4. No fence of any kind shall be allowed in areas specifically reserved or classified as parks.

Section 5. In no case shall walls and fences be built within the five (5) meter parking area allowance
located between the front monument line and the building line of commercial and industrial
establishments and educational and religious institutions. 7

Section 6. Exemption.

(1) The Ordinance does not cover perimeter walls of residential subdivisions.

(2) When public safety or public welfare requires, the Sangguniang Bayan may allow the
construction and/or maintenance of walls higher than as prescribed herein and shall issue a
special permit or exemption.

Section 7. Transitory Provision. Real property owners whose existing fences and walls do not
conform to the specifications herein are allowed adequate period of time from the passage of this
Ordinance within which to conform, as follows:

(1) Residential houses – eight (8) years

(2) Commercial establishments – five (5) years

(3) Industrial establishments – three (3) years

(4) Educational institutions – five (5) years8 (public and privately owned)

Section 8. Penalty. Walls found not conforming to the provisions of this Ordinance shall be
demolished by the municipal government at the expense of the owner of the lot or structure.

Section 9. The Municipal Engineering Office is tasked to strictly implement this ordinance, including
the issuance of the necessary implementing guidelines, issuance of building and fencing permits,
and demolition of non-conforming walls at the lapse of the grace period herein provided.

Section 10. Repealing Clause. All existing Ordinances and Resolutions, Rules and Regulations
inconsistent with the foregoing provisions are hereby repealed, amended or modified.

Section 11. Separability Clause. If for any reason or reasons, local executive orders, rules and
regulations or parts thereof in conflict with this Ordinance are hereby repealed and/or modified
accordingly.

Section 12. Effectivity. This ordinance takes effect after publication.

APPROVED: September 30, 1994

(Emphases supplied)

On April 2, 2000, the City Government of Marikina sent a letter to the respondents ordering them to
demolish and replace the fence of their Marikina property to make it 80% see-thru, and, at the same
time, to move it back about six (6) meters to provide parking space for vehicles to park. 9 On April 26,
2000, the respondents requested for an extension of time to comply with the directive. 10 In response,
the petitioners, through then City Mayor Bayani F. Fernando, insisted on the enforcement of the
subject ordinance.

Not in conformity, the respondents filed a petition for prohibition with an application for a writ of
preliminary injunction and temporary restraining order before the Regional Trial Court, Marikina,
Branch 273 (RTC), docketed as SCA Case No. 2000-381-MK. 11

The respondents argued that the petitioners were acting in excess of jurisdiction in enforcing
Ordinance No. 192, asserting that such contravenes Section 1, Article III of the 1987 Constitution.
That demolishing their fence and constructing it six (6) meters back would result in the loss of at
least 1,808.34 square meters, worth about ₱9,041,700.00, along West Drive, and at least 1,954.02
square meters, worth roughly ₱9,770,100.00, along East Drive. It would also result in the destruction
of the garbage house, covered walk, electric house, storage house, comfort rooms, guards’ room,
guards’ post, waiting area for visitors, waiting area for students, Blessed Virgin Shrine, P.E. area,
and the multi-purpose hall, resulting in the permanent loss of their beneficial use. The respondents,
thus, asserted that the implementation of the ordinance on their property would be tantamount to an
appropriation of property without due process of law; and that the petitioners could only appropriate
a portion of their property through eminent domain. They also pointed out that the goal of the
provisions to deter lawless elements and criminality did not exist as the solid concrete walls of the
school had served as sufficient protection for many years.12

The petitioners, on the other hand, countered that the ordinance was a valid exercise of police
power, by virtue of which, they could restrain property rights for the protection of public safety,
health, morals, or the promotion of public convenience and general prosperity. 13

On June 30, 2000, the RTC issued a writ of preliminary injunction, enjoining the petitioners from
implementing the demolition of the fence at SSC’s Marikina property. 14
Ruling of the RTC

On the merits, the RTC rendered a Decision,15 dated October 2, 2002, granting the petition and
ordering the issuance of a writ of prohibition commanding the petitioners to permanently desist from
enforcing or implementing Ordinance No. 192 on the respondents’ property.

The RTC agreed with the respondents that the order of the petitioners to demolish the fence at the
SSC property in Marikina and to move it back six (6) meters would amount to an appropriation of
property which could only be done through the exercise of eminent domain. It held that the
petitioners could not take the respondents’ property under the guise of police power to evade the
payment of just compensation.

It did not give weight to the petitioners’ contention that the parking space was for the benefit of the
students and patrons of SSA-Marikina, considering that the respondents were already providing for
sufficient parking in compliance with the standards under Rule XIX of the National Building Code.

It further found that the 80% see-thru fence requirement could run counter to the respondents’ right
to privacy, considering that the property also served as a residence of the Benedictine sisters, who
were entitled to some sense of privacy in their affairs. It also found that the respondents were able to
prove that the danger to security had no basis in their case. Moreover, it held that the purpose of
beautification could not be used to justify the exercise of police power.

It also observed that Section 7 of Ordinance No. 192, as amended, provided for retroactive
application. It held, however, that such retroactive effect should not impair the respondents’ vested
substantive rights over the perimeter walls, the six-meter strips of land along the walls, and the
building, structures, facilities, and improvements, which would be destroyed by the demolition of the
walls and the seizure of the strips of land.

The RTC also found untenable the petitioners’ argument that Ordinance No. 192 was a remedial or
curative statute intended to correct the defects of buildings and structures, which were brought about
by the absence or insufficiency of laws. It ruled that the assailed ordinance was neither remedial nor
curative in nature, considering that at the time the respondents’ perimeter wall was built, the same
was valid and legal, and the ordinance did not refer to any previous legislation that it sought to
correct.

The RTC noted that the petitioners could still take action to expropriate the subject property through
eminent domain.

The RTC, thus, disposed:

WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby issued commanding the
respondents to permanently desist from enforcing or implementing Ordinance No. 192, Series of
1994, as amended, on petitioners’ property in question located at Marikina Heights, Marikina, Metro
Manila.

No pronouncement as to costs.

SO ORDERED.16

Ruling of the CA
In its December 1, 2003 Decision, the CA dismissed the petitioners’ appeal and affirmed the RTC
decision.

The CA reasoned out that the objectives stated in Ordinance No. 192 did not justify the exercise of
police power, as it did not only seek to regulate, but also involved the taking of the respondents’
property without due process of law. The respondents were bound to lose an unquantifiable sense of
security, the beneficial use of their structures, and a total of 3,762.36 square meters of property. It,
thus, ruled that the assailed ordinance could not be upheld as valid as it clearly invaded the personal
and property rights of the respondents and "[f]or being unreasonable, and undue restraint of trade." 17

It noted that although the petitioners complied with procedural due process in enacting Ordinance
No. 192, they failed to comply with substantive due process. Hence, the failure of the respondents to
attend the public hearings in order to raise objections did not amount to a waiver of their right to
question the validity of the ordinance.

The CA also shot down the argument that the five-meter setback provision for parking was a legal
easement, the use and ownership of which would remain with, and inure to, the benefit of the
respondents for whom the easement was primarily intended. It found that the real intent of the
setback provision was to make the parking space free for use by the public, considering that such
would cease to be for the exclusive use of the school and its students as it would be situated outside
school premises and beyond the school administration’s control.

In affirming the RTC ruling that the ordinance was not a curative statute, the CA found that the
petitioner failed to point out any irregularity or invalidity in the provisions of the National Building
Code that required correction or cure. It noted that any correction in the Code should be properly
undertaken by the Congress and not by the City Council of Marikina through an ordinance.

The CA, thus, disposed:

WHEREFORE, all foregoing premises considered, the instant appeal is DENIED.  The October 2,
1âwphi1

2002 Decision and the January 13, 2003 Order of the Regional Trial Court (RTC) of Marikina City,
Branch 273, granting petitioners-appellees’ petition for Prohibition in SCA Case No. 2000-381-MK
are hereby AFFIRMED.

SO ORDERED.18

Aggrieved by the decision of the CA, the petitioners are now before this Court presenting the
following

ASSIGNMENT OF ERRORS

1. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN DECLARING

THAT CITY ORDINANCE NO. 192, SERIES OF 1994 IS NOT A VALID EXERCISE OF
POLICE POWER;

2. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN RULING

THAT THE AFOREMENTIONED ORDINANCE IS AN EXERCISE OF THE CITY OF THE
POWER OF EMINENT DOMAIN;
 3. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN DECLARING
THAT THE CITY VIOLATED THE DUE PROCESS CLAUSE IN IMPLEMENTING
ORDINANCE NO. 192, SERIES OF 1994; AND

4. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN RULING

THAT THE ABOVE-MENTIONED ORDINANCE CANNOT BE GIVEN RETROACTIVE
APPLICATION.19

In this case, the petitioners admit that Section 5 of the assailed ordinance, pertaining to the five-
meter setback requirement is, as held by the lower courts, invalid. 20 Nonetheless, the petitioners
argue that such invalidity was subsequently cured by Zoning Ordinance No. 303, series of 2000.
They also contend that Section 3, relating to the 80% see-thru fence requirement, must be complied
with, as it remains to be valid.

Ruling of the Court

The ultimate question before the Court is whether Sections 3.1 and 5 of Ordinance No. 192 are valid
exercises of police power by the City Government of Marikina.

"Police power is the plenary power vested in the legislature to make statutes and ordinances to
promote the health, morals, peace, education, good order or safety and general welfare of the
people."21 The State, through the legislature, has delegated the exercise of police power to local
government units, as agencies of the State. This delegation of police power is embodied in Section
1622 of the Local Government Code of 1991 (R.A. No. 7160), known as the General Welfare
Clause,23 which has two branches. "The first, known as the general legislative power, authorizes the
municipal council to enact ordinances and make regulations not repugnant to law, as may be
necessary to carry into effect and discharge the powers and duties conferred upon the municipal
council by law. The second, known as the police power proper, authorizes the municipality to enact
ordinances as may be necessary and proper for the health and safety, prosperity, morals, peace,
good order, comfort, and convenience of the municipality and its inhabitants, and for the protection
of their property."24

White Light Corporation v. City of Manila, 25 discusses the test of a valid ordinance:

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.26

Ordinance No. 192 was passed by the City Council of Marikina in the apparent exercise of its police
power. To successfully invoke the exercise of police power as the rationale for the enactment of an
ordinance and to free it from the imputation of constitutional infirmity, two tests have been used by
the Court – the rational relationship test and the strict scrutiny test:

We ourselves have often applied the rational basis test mainly in analysis of equal protection
challenges. Using the rational basis examination, laws or ordinances are upheld if they rationally
further a legitimate governmental interest. Under intermediate review, governmental interest is
extensively examined and the availability of less restrictive measures is considered. 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. 27

Even without going to a discussion of the strict scrutiny test, Ordinance No. 192, series of 1994 must
be struck down for not being reasonably necessary to accomplish the City’s purpose. More
importantly, it is oppressive of private rights.

Under the rational relationship test, an ordinance must pass the following requisites as discussed in
Social Justice Society (SJS) v. Atienza, Jr.:28

As with the State, local governments may be considered as having properly exercised their police
power only if the following requisites are met: (1) the interests of the public generally, as
distinguished from those of a particular class, require its exercise and (2) the means employed are
reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon
individuals. In short, there must be a concurrence of a lawful subject and lawful method. 29

Lacking a concurrence of these two requisites, the police power measure shall be struck down as an
arbitrary intrusion into private rights and a violation of the due process clause. 30

Section 3.1 and 5 of the assailed ordinance are pertinent to the issue at hand, to wit:

Section 3. The standard height of fences of walls allowed under this ordinance are as follows:

(1) Fences on the front yard – shall be no more than one (1) meter in height. Fences in excess of
one (1) meter shall be an open fence type, at least eighty percent (80%) see-thru;

x x x           x x x          x x x

Section 5. In no case shall walls and fences be built within the five (5) meter parking area allowance
located between the front monument line and the building line of commercial and industrial
establishments and educational and religious institutions.

The respondents, thus, sought to prohibit the petitioners from requiring them to (1) demolish their
existing concrete wall, (2) build a fence (in excess of one meter) which must be 80% see-thru, and
(3) build the said fence six meters back in order to provide a parking area.

Setback Requirement

The Court first turns its attention to Section 5 which requires the five-meter setback of the fence to
provide for a parking area. The petitioners initially argued that the ownership of the parking area to
be created would remain with the respondents as it would primarily be for the use of its students and
faculty, and that its use by the public on non-school days would only be incidental. In their Reply,
however, the petitioners admitted that Section 5 was, in fact, invalid for being repugnant to the
Constitution.31

The Court agrees with the latter position.

The Court joins the CA in finding that the real intent of the setback requirement was to make the
parking space free for use by the public, considering that it would no longer be for the exclusive use
of the respondents as it would also be available for use by the general public. Section 9 of Article III
of the 1987 Constitution, a provision on eminent domain, provides that private property shall not be
taken for public use without just compensation.

The petitioners cannot justify the setback by arguing that the ownership of the property will continue
to remain with the respondents. It is a settled rule that neither the acquisition of title nor the total
destruction of value is essential to taking. In fact, it is usually in cases where the title remains with
the private owner that inquiry should be made to determine whether the impairment of a property is
merely regulated or amounts to a compensable taking. 32 The Court is of the view that the
implementation of the setback requirement would be tantamount to a taking of a total of 3,762.36
square meters of the respondents’ private property for public use without just compensation, in
contravention to the Constitution.

Anent the objectives of prevention of concealment of unlawful acts and "un-neighborliness," it is

obvious that providing for a parking area has no logical connection to, and is not reasonably
necessary for, the accomplishment of these goals.

Regarding the beautification purpose of the setback requirement, it has long been settled that the
State may not, under the guise of police power, permanently divest owners of the beneficial use of
their property solely to preserve or enhance the aesthetic appearance of the community. 33 The Court,
thus, finds Section 5 to be unreasonable and oppressive as it will substantially divest the
respondents of the beneficial use of their property solely for aesthetic purposes. Accordingly, Section
5 of Ordinance No. 192 is invalid.

The petitioners, however, argue that the invalidity of Section 5 was properly cured by Zoning
Ordinance No. 303,34 Series of 2000, which classified the respondents’ property to be within an
institutional zone, under which a five-meter setback has been required.

The petitioners are mistaken. Ordinance No. 303, Series of 2000, has no bearing to the case at
hand.

The Court notes with displeasure that this argument was only raised for the first time on appeal in
this Court in the petitioners’ Reply. Considering that Ordinance No. 303 was enacted on December
20, 2000, the petitioners could very well have raised it in their defense before the RTC in 2002. The
settled rule in this jurisdiction is that a party cannot change the legal theory of this case under which
the controversy was heard and decided in the trial court. It should be the same theory under which
the review on appeal is conducted. Points of law, theories, issues, and arguments not adequately
brought to the attention of the lower court will not be ordinarily considered by a reviewing court,
inasmuch as they cannot be raised for the first time on appeal. This will be offensive to the basic
rules of fair play, justice, and due process.35

Furthermore, the two ordinances have completely different purposes and subjects. Ordinance No.
192 aims to regulate the construction of fences, while Ordinance No. 303 is a zoning ordinance
which classifies the city into specific land uses. In fact, the five-meter setback required by Ordinance
No. 303 does not even appear to be for the purpose of providing a parking area.

By no stretch of the imagination, therefore, can Ordinance No. 303, "cure" Section 5 of Ordinance
No. 192.

In any case, the clear subject of the petition for prohibition filed by the respondents is Ordinance No.
192 and, as such, the precise issue to be determined is whether the petitioners can be prohibited
from enforcing the said ordinance, and no other, against the respondents.
80% See-Thru Fence Requirement

The petitioners argue that while Section 5 of Ordinance No. 192 may be invalid, Section 3.1 limiting
the height of fences to one meter and requiring fences in excess of one meter to be at least 80%
see-thru, should remain valid and enforceable against the respondents.

The Court cannot accommodate the petitioner.

For Section 3.1 to pass the rational relationship test, the petitioners must show the reasonable
relation between the purpose of the police power 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. 36

The principal purpose of Section 3.1 is "to discourage, suppress or prevent the concealment of
prohibited or unlawful acts." The ultimate goal of this objective is clearly the prevention of crime to
ensure public safety and security. The means employed by the petitioners, however, is not
reasonably necessary for the accomplishment of this purpose and is unduly oppressive to private
rights. The petitioners have not adequately shown, and it does not appear obvious to this Court, that
an 80% see-thru fence would provide better protection and a higher level of security, or serve as a
more satisfactory criminal deterrent, than a tall solid concrete wall. It may even be argued that such
exposed premises could entice and tempt would-be criminals to the property, and that a see-thru
fence would be easier to bypass and breach. It also appears that the respondents’ concrete wall has
served as more than sufficient protection over the last 40 years. `

As to the beautification purpose of the assailed ordinance, as previously discussed, the State may
not, under the guise of police power, infringe on private rights solely for the sake of the aesthetic
appearance of the community. Similarly, the Court cannot perceive how a see-thru fence will foster
"neighborliness" between members of a community.

Compelling the respondents to construct their fence in accordance with the assailed ordinance is,
thus, a clear encroachment on their right to property, which necessarily includes their right to decide
how best to protect their property.

It also appears that requiring the exposure of their property via a see-thru fence is violative of their
right to privacy, considering that the residence of the Benedictine nuns is also located within the
property. The right to privacy has long been considered a fundamental right guaranteed by the
Constitution that must be protected from intrusion or constraint. The right to privacy is essentially the
right to be let alone,37 as governmental powers should stop short of certain intrusions into the
personal life of its citizens.38 It is inherent in the concept of liberty, enshrined in the Bill of Rights
(Article III) in Sections 1, 2, 3(1), 6, 8, and 17, Article III of the 1987 Constitution. 39

The enforcement of Section 3.1 would, therefore, result in an undue interference with the
respondents’ rights to property and privacy. Section 3.1 of Ordinance No. 192 is, thus, also invalid
and cannot be enforced against the respondents.

No Retroactivity

Ordinance No. 217 amended Section 7 of Ordinance No. 192 by including the regulation of
educational institutions which was unintentionally omitted, and giving said educational institutions
five (5) years from the passage of Ordinance No. 192 (and not Ordinance No. 217) to conform to its
provisions.40 The petitioners argued that the amendment could be retroactively applied because the
assailed ordinance is a curative statute which is retroactive in nature.

Considering that Sections 3.1 and 5 of Ordinance No. 192 cannot be enforced against the
respondents, it is no longer necessary to rule on the issue of retroactivity. The Court shall,
nevertheless, pass upon the issue for the sake of clarity.

"Curative statutes are enacted to cure defects in a prior law or to validate legal proceedings which
would otherwise be void for want of conformity with certain legal requirements. They are intended to
supply defects, abridge superfluities and curb certain evils. They are intended to enable persons to
carry into effect that which they have designed or intended, but has failed of expected legal
consequence by reason of some statutory disability or irregularity in their own action. They make
valid that which, before the enactment of the statute was invalid. Their purpose is to give validity to
acts done that would have been invalid under existing laws, as if existing laws have been complied
with. Curative statutes, therefore, by their very essence, are retroactive." 41

The petitioners argue that Ordinance No. 192 is a curative statute as it aims to correct or cure a
defect in the National Building Code, namely, its failure to provide for adequate guidelines for the
construction of fences. They ultimately seek to remedy an insufficiency in the law. In aiming to cure
this insufficiency, the petitioners attempt to add lacking provisions to the National Building Code.
This is not what is contemplated by curative statutes, which intend to correct irregularities or
invalidity in the law. The petitioners fail to point out any irregular or invalid provision. As such, the
assailed ordinance cannot qualify as curative and retroactive in nature.

At any rate, there appears to be no insufficiency in the National Building Code with respect to
parking provisions in relation to the issue of the respondents. Paragraph 1.16.1, Rule XIX of the
Rules and Regulations of the said code requires an educational institution to provide one parking
slot for every ten classrooms. As found by the lower courts, the respondents provide a total of 76
parking slots for their 80 classrooms and, thus, had more than sufficiently complied with the law.

Ordinance No. 192, as amended, is, therefore, not a curative statute which may be applied
retroactively.

Separability

Sections 3.1 and 5 of Ordinance No. 192, as amended, are, thus, invalid and cannot be enforced
against the respondents. Nonetheless, "the general rule is that where part of a statute is void as
repugnant to the Constitution, while another part is valid, the valid portion, if susceptible to being
separated from the invalid, may stand and be enforced." 42 Thus, the other sections of the assailed
ordinance remain valid and enforceable.

Conclusion

Considering the invalidity of Sections 3.1 and 5, it is clear that the petitioners were acting in excess
of their jurisdiction in enforcing Ordinance No. 192 against the respondents. The CA was correct in
affirming the decision of the RTC in issuing the writ of prohibition. The petitioners must permanently
desist from enforcing Sections 3.1 and 5 of the assailed ordinance on the respondents' property in
Marikina City.

WHEREFORE, the petition is DENIED. The October 2, 2002 Decision of the Regional Trial Court in
SCA Case No. 2000-381-MK is AFFIRMED but MODIFIED to read as follows:
WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby issued commanding the
respondents to permanently desist from enforcing or implementing Sections 3.1 and 5 of Ordinance
No. 192, Series of 1994, as amended, on the petitioners' property in question located in Marikina
Heights, Marikina, Metro Manila.

No pronouncement as to costs.

SO ORDERED.