G.R. No.

L-24693

July 31, 1967

ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL

MAR INC. and GO CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.
Panganiban, Abad and Associates Law Office for respondent-appellant.
J. M. Aruego, Tenchavez and Associates for intervenor-appellee.
FERNANDO, J.:
The principal question in this appeal from a judgment of the lower court in an action for
prohibition is whether Ordinance No. 4760 of the City of Manila is violative of the due process
clause. The lower court held that it is and adjudged it "unconstitutional, and, therefore, null
and void." For reasons to be more specifically set forth, such judgment must be reversed,
there being a failure of the requisite showing to sustain an attack against its validity.
The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the
petitioners, Ermita-Malate Hotel and Motel Operators Association, one of its members, Hotel
del Mar Inc., and a certain Go Chiu, who is "the president and general manager of the second
petitioner" against the respondent Mayor of the City of Manila who was sued in his capacity
as such "charged with the general power and duty to enforce ordinances of the City of Manila
and to give the necessary orders for the faithful execution and enforcement of such
ordinances." (par. 1). It was alleged that the petitioner non-stock corporation is dedicated to
the promotion and protection of the interest of its eighteen (18) members "operating hotels
and motels, characterized as legitimate businesses duly licensed by both national and city
authorities, regularly paying taxes, employing and giving livelihood to not less than 2,500
person and representing an investment of more than P3 million." 1 (par. 2). It was then alleged
that on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No.
4760, approved on June 14, 1963 by the then Vice-Mayor Herminio Astorga, who was at the
time acting as Mayor of the City of Manila. (par. 3).
After which the alleged grievances against the ordinance were set forth in detail. There was
the assertion of its being beyond the powers of the Municipal Board of the City of Manila to
enact insofar as it would regulate motels, on the ground that in the revised charter of the City
of Manila or in any other law, no reference is made to motels; that Section 1 of the challenged
ordinance is unconstitutional and void for being unreasonable and violative of due process
insofar as it would impose P6,000.00 fee per annum for first class motels and P4,500.00 for
second class motels; that the provision in the same section which would require the owner,
manager, keeper or duly authorized representative of a hotel, motel, or lodging house to
refrain from entertaining or accepting any guest or customer or letting any room or other
quarter to any person or persons without his filling up the prescribed form in a lobby open to
public view at all times and in his presence, wherein the surname, given name and middle

name, the date of birth, the address, the occupation, the sex, the nationality, the length of
stay and the number of companions in the room, if any, with the name, relationship, age and
sex would be specified, with data furnished as to his residence certificate as well as his
passport number, if any, coupled with a certification that a person signing such form has
personally filled it up and affixed his signature in the presence of such owner, manager,
keeper or duly authorized representative, with such registration forms and records kept and
bound together, it also being provided that the premises and facilities of such hotels, motels
and lodging houses would be open for inspection either by the City Mayor, or the Chief of
Police, or their duly authorized representatives is unconstitutional and void again on due
process grounds, not only for being arbitrary, unreasonable or oppressive but also for being
vague, indefinite and uncertain, and likewise for the alleged invasion of the right to privacy
and the guaranty against self-incrimination; that Section 2 of the challenged ordinance
classifying motels into two classes and requiring the maintenance of certain minimum
facilities in first class motels such as a telephone in each room, a dining room or, restaurant
and laundry similarly offends against the due process clause for being arbitrary, unreasonable
and oppressive, a conclusion which applies to the portion of the ordinance requiring second
class motels to have a dining room; that the provision of Section 2 of the challenged
ordinance prohibiting a person less than 18 years old from being accepted in such hotels,
motels, lodging houses, tavern or common inn unless accompanied by parents or a lawful
guardian and making it unlawful for the owner, manager, keeper or duly authorized
representative of such establishments to lease any room or portion thereof more than twice
every 24 hours, runs counter to the due process guaranty for lack of certainty and for its
unreasonable, arbitrary and oppressive character; and that insofar as the penalty provided for
in Section 4 of the challenged ordinance for a subsequent conviction would, cause the
automatic cancellation of the license of the offended party, in effect causing the destruction of
the business and loss of its investments, there is once again a transgression of the due
process clause.
There was a plea for the issuance of preliminary injunction and for a final judgment declaring
the above ordinance null and void and unenforceable. The lower court on July 6, 1963 issued
a writ of preliminary injunction ordering respondent Mayor to refrain from enforcing said
Ordinance No. 4760 from and after July 8, 1963.
In the a answer filed on August 3, 1963, there was an admission of the personal
circumstances regarding the respondent Mayor and of the fact that petitioners are licensed to
engage in the hotel or motel business in the City of Manila, of the provisions of the cited
Ordinance but a denial of its alleged nullity, whether on statutory or constitutional grounds.
After setting forth that the petition did fail to state a cause of action and that the challenged
ordinance bears a reasonable relation, to a proper purpose, which is to curb immorality, a
valid and proper exercise of the police power and that only the guests or customers not
before the court could complain of the alleged invasion of the right to privacy and the
guaranty against self incrimination, with the assertion that the issuance of the preliminary
injunction ex parte was contrary to law, respondent Mayor prayed for, its dissolution and the
dismissal of the petition.

Instead of evidence being offered by both parties, there was submitted a stipulation of facts
dated September 28, 1964, which reads:
1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc.
and Hotel del Mar Inc. are duly organized and existing under the laws of the
Philippines, both with offices in the City of Manila, while the petitioner Go Chin is the
president and general manager of Hotel del Mar Inc., and the intervenor Victor
Alabanza is a resident of Baguio City, all having the capacity to sue and be sued;
2. That the respondent Mayor is the duly elected and incumbent City Mayor and
chief executive of the City of Manila charged with the general power and duty to
enforce ordinances of the City of Manila and to give the necessary orders for the
faithful execution and enforcement of such ordinances;
3. That the petitioners are duly licensed to engage in the business of operating
hotels and motels in Malate and Ermita districts in Manila;
4. That on June 13, 1963, the Municipal Board of the City of Manila enacted
Ordinance No. 4760, which was approved on June 14, 1963, by Vice-Mayor
Herminio Astorga, then the acting City Mayor of Manila, in the absence of the
respondent regular City Mayor, amending sections 661, 662, 668-a, 668-b and 669
of the compilation of the ordinances of the City of Manila besides inserting therein
three new sections. This ordinance is similar to the one vetoed by the respondent
Mayor (Annex A) for the reasons stated in its 4th Indorsement dated February 15,
1963 (Annex B);
5. That the explanatory note signed by then Councilor Herminio Astorga was
submitted with the proposed ordinance (now Ordinance 4760) to the Municipal
Board, copy of which is attached hereto as Annex C;
6. That the City of Manila derived in 1963 an annual income of P101,904.05 from
license fees paid by the 105 hotels and motels (including herein petitioners)
operating in the City of Manila.
1wph1.t

Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was
laid on the presumption of the validity of the challenged ordinance, the burden of showing its
lack of conformity to the Constitution resting on the party who assails it, citing not only U.S. v.
Salaveria, but likewise applicable American authorities. Such a memorandum likewise refuted
point by point the arguments advanced by petitioners against its validity. Then barely two
weeks later, on February 4, 1965, the memorandum for petitioners was filed reiterating in
detail what was set forth in the petition, with citations of what they considered to be applicable
American authorities and praying for a judgment declaring the challenged ordinance "null and
void and unenforceable" and making permanent the writ of preliminary injunction issued.

After referring to the motels and hotels, which are members of the petitioners association,
and referring to the alleged constitutional questions raised by the party, the lower court
observed: "The only remaining issue here being purely a question of law, the parties, with the
nod of the Court, agreed to file memoranda and thereafter, to submit the case for decision of
the Court." It does appear obvious then that without any evidence submitted by the parties,
the decision passed upon the alleged infirmity on constitutional grounds of the challenged
ordinance, dismissing as is undoubtedly right and proper the untenable objection on the
alleged lack of authority of the City of Manila to regulate motels, and came to the conclusion
that "the challenged Ordinance No. 4760 of the City of Manila, would be unconstitutional and,
therefore, null and void." It made permanent the preliminary injunction issued against
respondent Mayor and his agents "to restrain him from enforcing the ordinance in question."
Hence this appeal.
As noted at the outset, the judgment must be reversed. A decent regard for constitutional
doctrines of a fundamental character ought to have admonished the lower court against such
a sweeping condemnation of the challenged ordinance. Its decision cannot be allowed to
stand, consistently with what has hitherto been the accepted standards of constitutional
adjudication, in both procedural and substantive aspects.
Primarily what calls for a reversal of such a decision is the absence of any evidence to offset
the presumption of validity that attaches to a challenged statute or ordinance. As was
expressed categorically by Justice Malcolm: "The presumption is all in favor of validity x x x .
The action of the elected representatives of the people cannot be lightly set aside. The
councilors must, in the very nature of things, be familiar with the necessities of their particular
municipality and with all the facts and circumstances which surround the subject and
necessitate action. The local legislative body, by enacting the ordinance, has in effect given
notice that the regulations are essential to the well being of the people x x x . The Judiciary
should not lightly set aside legislative action when there is not a clear invasion of personal or
property rights under the guise of police regulation.2
It admits of no doubt therefore that there being a presumption of validity, the necessity for
evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face which is
not the case here. The principle has been nowhere better expressed than in the leading case
of O'Gorman & Young v. Hartford Fire Insurance Co.,3 where the American Supreme Court
through Justice Brandeis tersely and succinctly summed up the matter thus: The statute here
questioned deals with a subject clearly within the scope of the police power. We are asked to
declare it void on the ground that the specific method of regulation prescribed is
unreasonable and hence deprives the plaintiff of due process of law. As underlying questions
of fact may condition the constitutionality of legislation of this character, the resumption of
constitutionality must prevail in the absence of some factual foundation of record for
overthrowing the statute." No such factual foundation being laid in the present case, the lower
court deciding the matter on the pleadings and the stipulation of facts, the presumption of
validity must prevail and the judgment against the ordinance set aside.
Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as
being repugnant to the due process clause of the Constitution. The mantle of protection

associated with the due process guaranty does not cover petitioners. This particular
manifestation of a police power measure being specifically aimed to safeguard public morals
is immune from such imputation of nullity resting purely on conjecture and unsupported by
anything of substance. To hold otherwise would be to unduly restrict and narrow the scope of
police power which has been properly characterized as the most essential, insistent and the
least limitable of powers, 4extending as it does "to all the great public needs." 5 It would be, to
paraphrase another leading decision, to destroy the very purpose of the state if it could be
deprived or allowed itself to be deprived of its competence to promote public health, public
morals, public safety and the genera welfare.6 Negatively put, police power is "that inherent
and plenary power in the State which enables it to prohibit all that is hurt full to the comfort,
safety, and welfare of society.7
There is no question but that the challenged ordinance was precisely enacted to minimize
certain practices hurtful to public morals. The explanatory note of the Councilor Herminio
Astorga included as annex to the stipulation of facts, speaks of the alarming increase in the
rate of prostitution, adultery and fornication in Manila traceable in great part to the existence
of motels, which "provide a necessary atmosphere for clandestine entry, presence and exit"
and thus become the "ideal haven for prostitutes and thrill-seekers." The challenged
ordinance then proposes to check the clandestine harboring of transients and guests of these
establishments by requiring these transients and guests to fill up a registration form, prepared
for the purpose, in a lobby open to public view at all times, and by introducing several other
amendatory provisions calculated to shatter the privacy that characterizes the registration of
transients and guests." Moreover, the increase in the licensed fees was intended to
discourage "establishments of the kind from operating for purpose other than legal" and at
the same time, to increase "the income of the city government." It would appear therefore that
the stipulation of facts, far from sustaining any attack against the validity of the ordinance,
argues eloquently for it.
It is a fact worth noting that this Court has invariably stamped with the seal of its approval,
ordinances punishing vagrancy and classifying a pimp or procurer as a vagrant; 8 provide a
license tax for and regulating the maintenance or operation of public dance halls; 9 prohibiting
gambling;10 prohibiting jueteng;11 and monte;12prohibiting playing of panguingui on days other
than Sundays or legal holidays;13 prohibiting the operation of pinball machines;14 and
prohibiting any person from keeping, conducting or maintaining an opium joint or visiting a
place where opium is smoked or otherwise used,15 all of which are intended to protect public
morals.
On the legislative organs of the government, whether national or local, primarily rest the
exercise of the police power, which, it cannot be too often emphasized, is the power to
prescribe regulations to promote the health, morals, peace, good order, safety and general
welfare of the people. In view of the requirements of due process, equal protection and other
applicable constitutional guaranties however, the exercise of such police power insofar as it
may affect the life, liberty or property of any person is subject to judicial inquiry. Where such
exercise of police power may be considered as either capricious, whimsical, unjust or
unreasonable, a denial of due process or a violation of any other applicable constitutional
guaranty may call for correction by the courts.

We are thus led to considering the insistent, almost shrill tone, in which the objection is raised
to the question of due process.16 There is no controlling and precise definition of due process.
It furnishes though a standard to which the governmental action should conform in order that
deprivation of life, liberty or property, in each appropriate case, be valid. What then is the
standard of due process which must exist both as a procedural and a substantive requisite to
free the challenged ordinance, or any governmental action for that matter, from the imputation
of legal infirmity sufficient to spell its doom? It is responsiveness to the supremacy of reason,
obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness
avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must
not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile
to any official action marred by lack of reasonableness. Correctly it has been identified as
freedom from arbitrariness. It is the embodiment of the sporting idea of fair play.17 It exacts
fealty "to those strivings for justice" and judges the act of officialdom of whatever branch "in
the light of reason drawn from considerations of fairness that reflect [democratic] traditions of
legal and political thought."18 It is not a narrow or "technical conception with fixed content
unrelated to time, place and circumstances,"19 decisions based on such a clause requiring a
"close and perceptive inquiry into fundamental principles of our society." 20 Questions of due
process are not to be treated narrowly or pedantically in slavery to form or phrases.21
It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet
what a municipal lawmaking body considers an evil of rather serious proportion an arbitrary
and capricious exercise of authority. It would seem that what should be deemed
unreasonable and what would amount to an abdication of the power to govern is inaction in
the face of an admitted deterioration of the state of public morals. To be more specific, the
Municipal Board of the City of Manila felt the need for a remedial measure. It provided it with
the enactment of the challenged ordinance. A strong case must be found in the records, and,
as has been set forth, none is even attempted here to attach to an ordinance of such
character the taint of nullity for an alleged failure to meet the due process requirement. Nor
does it lend any semblance even of deceptive plausibility to petitioners' indictment of
Ordinance No. 4760 on due process grounds to single out such features as the increased
fees for motels and hotels, the curtailment of the area of freedom to contract, and, in certain
particulars, its alleged vagueness.
Admittedly there was a decided increase of the annual license fees provided for by the
challenged ordinance for hotels and motels, 150% for the former and over 200% for the latter,
first-class motels being required to pay a P6,000 annual fee and second-class motels, P4,500
yearly. It has been the settled law however, as far back as 1922 that municipal license fees
could be classified into those imposed for regulating occupations or regular enterprises, for
the regulation or restriction of non-useful occupations or enterprises and for revenue
purposes only.22 As was explained more in detail in the above Cu Unjieng case: (2) Licenses
for non-useful occupations are also incidental to the police power and the right to exact a fee
may be implied from the power to license and regulate, but in fixing amount of the license
fees the municipal corporations are allowed a much wider discretion in this class of cases
than in the former, and aside from applying the well-known legal principle that municipal
ordinances must not be unreasonable, oppressive, or tyrannical, courts have, as a general
rule, declined to interfere with such discretion. The desirability of imposing restraint upon the

number of persons who might otherwise engage in non-useful enterprises is, of course,
generally an important factor in the determination of the amount of this kind of license fee.
Hence license fees clearly in the nature of privilege taxes for revenue have frequently been
upheld, especially in of licenses for the sale of liquors. In fact, in the latter cases the fees
have rarely been declared unreasonable.23
Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine
earlier announced by the American Supreme Court that taxation may be made to implement
the state's police power. Only the other day, this Court had occasion to affirm that the broad
taxing authority conferred by the Local Autonomy Act of 1959 to cities and municipalities is
sufficiently plenary to cover a wide range of subjects with the only limitation that the tax so
levied is for public purposes, just and uniform.25
As a matter of fact, even without reference to the wide latitude enjoyed by the City of Manila
in imposing licenses for revenue, it has been explicitly held in one case that "much discretion
is given to municipal corporations in determining the amount," here the license fee of the
operator of a massage clinic, even if it were viewed purely as a police power measure. 26 The
discussion of this particular matter may fitly close with this pertinent citation from another
decision of significance: "It is urged on behalf of the plaintiffs-appellees that the enforcement
of the ordinance could deprive them of their lawful occupation and means of livelihood
because they can not rent stalls in the public markets. But it appears that plaintiffs are also
dealers in refrigerated or cold storage meat, the sale of which outside the city markets under
certain conditions is permitted x x x . And surely, the mere fact, that some individuals in the
community may be deprived of their present business or a particular mode of earning a living
cannot prevent the exercise of the police power. As was said in a case, persons licensed to
pursue occupations which may in the public need and interest be affected by the exercise of
the police power embark in these occupations subject to the disadvantages which may result
from the legal exercise of that power."27
Nor does the restriction on the freedom to contract, insofar as the challenged ordinance
makes it unlawful for the owner, manager, keeper or duly authorized representative of any
hotel, motel, lodging house, tavern, common inn or the like, to lease or rent room or portion
thereof more than twice every 24 hours, with a proviso that in all cases full payment shall be
charged, call for a different conclusion. Again, such a limitation cannot be viewed as a
transgression against the command of due process. It is neither unreasonable nor arbitrary.
Precisely it was intended to curb the opportunity for the immoral or illegitimate use to which
such premises could be, and, according to the explanatory note, are being devoted. How
could it then be arbitrary or oppressive when there appears a correspondence between the
undeniable existence of an undesirable situation and the legislative attempt at correction.
Moreover, petitioners cannot be unaware that every regulation of conduct amounts to
curtailment of liberty which as pointed out by Justice Malcolm cannot be absolute. Thus: "One
thought which runs through all these different conceptions of liberty is plainly apparent. It is
this: 'Liberty' as understood in democracies, is not license; it is 'liberty regulated by law.'
Implied in the term is restraint by law for the good of the individual and for the greater good of
the peace and order of society and the general well-being. No man can do exactly as he
pleases. Every man must renounce unbridled license. The right of the individual is

necessarily subject to reasonable restraint by general law for the common good x x x The
liberty of the citizen may be restrained in the interest of the public health, or of the public
order and safety, or otherwise within the proper scope of the police power."28
A similar observation was made by Justice Laurel: "Public welfare, then, lies at the bottom of
the enactment of said law, and the state in order to promote the general welfare may interfere
with personal liberty, with property, and with business and occupations. Persons and property
may be subjected to all kinds of restraints and burdens, in order to secure the general
comfort, health, and prosperity of the state x x x To this fundamental aim of our Government
the rights of the individual are subordinated. Liberty is a blessing without which life is a
misery, but liberty should not be made to prevail over authority because then society will fall
into anarchy. Neither should authority be made to prevail over liberty because then the
individual will fall into slavery. The citizen should achieve the required balance of liberty and
authority in his mind through education and personal discipline, so that there may be
established the resultant equilibrium, which means peace and order and happiness for all.29
It is noteworthy that the only decision of this Court nullifying legislation because of undue
deprivation of freedom to contract, People v. Pomar,30 no longer "retains its virtuality as a
living principle. The policy of laissez faire has to some extent given way to the assumption by
the government of the right of intervention even in contractual relations affected with public
interest.31 What may be stressed sufficiently is that if the liberty involved were freedom of the
mind or the person, the standard for the validity of governmental acts is much more rigorous
and exacting, but where the liberty curtailed affects at the most rights of property, the
permissible scope of regulatory measure is wider.32 How justify then the allegation of a denial
of due process?
Lastly, there is the attempt to impugn the ordinance on another due process ground by
invoking the principles of vagueness or uncertainty. It would appear from a recital in the
petition itself that what seems to be the gravamen of the alleged grievance is that the
provisions are too detailed and specific rather than vague or uncertain. Petitioners, however,
point to the requirement that a guest should give the name, relationship, age and sex of the
companion or companions as indefinite and uncertain in view of the necessity for determining
whether the companion or companions referred to are those arriving with the customer or
guest at the time of the registry or entering the room With him at about the same time or
coming at any indefinite time later to join him; a proviso in one of its sections which cast
doubt as to whether the maintenance of a restaurant in a motel is dependent upon the
discretion of its owners or operators; another proviso which from their standpoint would
require a guess as to whether the "full rate of payment" to be charged for every such lease
thereof means a full day's or merely a half-day's rate. It may be asked, do these allegations
suffice to render the ordinance void on its face for alleged vagueness or uncertainty? To ask
the question is to answer it. From Connally v. General Construction Co.33 to Adderley v.
Florida,34 the principle has been consistently upheld that what makes a statute susceptible to
such a charge is an enactment either forbidding or requiring the doing of an act that men of
common intelligence must necessarily guess at its meaning and differ as to its application. Is
this the situation before us? A citation from Justice Holmes would prove illuminating: "We
agree to all the generalities about not supplying criminal laws with what they omit but there is

no canon against using common sense in construing laws as saying what they obviously
mean."35
That is all then that this case presents. As it stands, with all due allowance for the arguments
pressed with such vigor and determination, the attack against the validity of the challenged
ordinance cannot be considered a success. Far from it. Respect for constitutional law
principles so uniformly held and so uninterruptedly adhered to by this Court compels a
reversal of the appealed decision.
Wherefore, the judgment of the lower court is reversed and the injunction issued lifted
forthwith. With costs.

G.R. No. L-59234 September 30, 1982

TAXICAB OPERATORS OF METRO MANILA, INC., FELICISIMO CABIGAO and ACE
TRANSPORTATION CORPORATION, petitioners,
vs.
THE BOARD OF TRANSPORTATION and THE DIRECTOR OF THE BUREAU OF LAND
TRANSPORTATION,respondents.

MELENCIO-HERRERA, J.:
This Petition for "Certiorari, Prohibition and mandamus with Preliminary Injunction and
Temporary Restraining Order" filed by the Taxicab Operators of Metro Manila, Inc., Felicisimo
Cabigao and Ace Transportation, seeks to declare the nullity of Memorandum Circular No.
77-42, dated October 10, 1977, of the Board of Transportation, and Memorandum Circular
No. 52, dated August 15, 1980, of the Bureau of Land Transportation.
Petitioner Taxicab Operators of Metro Manila, Inc. (TOMMI) is a domestic corporation
composed of taxicab operators, who are grantees of Certificates of Public Convenience to
operate taxicabs within the City of Manila and to any other place in Luzon accessible to
vehicular traffic. Petitioners Ace Transportation Corporation and Felicisimo Cabigao are two
of the members of TOMMI, each being an operator and grantee of such certificate of public
convenience.
On October 10, 1977, respondent Board of Transportation (BOT) issued Memorandum
Circular No. 77-42 which reads:
SUBJECT: Phasing out and Replacement of
Old and Dilapidated Taxis
WHEREAS, it is the policy of the government to insure that only safe and
comfortable units are used as public conveyances;
WHEREAS, the riding public, particularly in Metro-Manila, has, time and
again, complained against, and condemned, the continued operation of old
and dilapidated taxis;
WHEREAS, in order that the commuting public may be assured of comfort,
convenience, and safety, a program of phasing out of old and dilapidated
taxis should be adopted;
WHEREAS, after studies and inquiries made by the Board of
Transportation, the latter believes that in six years of operation, a taxi
operator has not only covered the cost of his taxis, but has made
reasonable profit for his investments;

NOW, THEREFORE, pursuant to this policy, the Board hereby declares

that no car beyond six years shall be operated as taxi, and in
implementation of the same hereby promulgates the following rules and
regulations:
1. As of December 31, 1977, all taxis of Model 1971 and earlier are ordered
withdrawn from public service and thereafter may no longer be registered
and operated as taxis. In the registration of cards for 1978, only taxis of
Model 1972 and later shall be accepted for registration and allowed for
operation;
2. As of December 31, 1978, all taxis of Model 1972 are ordered withdrawn
from public service and thereafter may no longer be registered and
operated as taxis. In the registration of cars for 1979, only taxis of Model
1973 and later shall be accepted for registration and allowed for operation;
and every year thereafter, there shall be a six-year lifetime of taxi, to wit:
1980 Model 1974
1981 Model 1975, etc.
All taxis of earlier models than those provided above are hereby ordered
withdrawn from public service as of the last day of registration of each
particular year and their respective plates shall be surrendered directly to
the Board of Transportation for subsequent turnover to the Land
Transportation Commission.
For an orderly implementation of this Memorandum Circular, the rules
herein shall immediately be effective in Metro-Manila. Its implementation
outside Metro- Manila shall be carried out only after the project has been
implemented in Metro-Manila and only after the date has been determined
by the Board. 1
Pursuant to the above BOT circular, respondent Director of the Bureau of Land
Transportation (BLT) issued Implementing Circular No. 52, dated August 15, 1980, instructing
the Regional Director, the MV Registrars and other personnel of BLT, all within the National
Capitol Region, to implement said Circular, and formulating a schedule of phase-out of
vehicles to be allowed and accepted for registration as public conveyances. To quote said
Circular:
Pursuant to BOT Memo-Circular No. 77-42, taxi units with year models
over six (6) years old are now banned from operating as public utilities in
Metro Manila. As such the units involved should be considered as
automatically dropped as public utilities and, therefore, do not require any
further dropping order from the BOT.
Henceforth, taxi units within the National Capitol Region having year
models over 6 years old shall be refused registration. The following

schedule of phase-out is herewith prescribed for the guidance of all

concerned:

Year Model

Automatic
Phase-Out
Year

1980

On February 16, 1981, petitioners filed before the BOT a "Manifestation and Urgent Motion",
praying for an early hearing of their petition. The case was heard on February 20, 1981.
Petitioners presented testimonial and documentary evidence, offered the same, and
manifested that they would submit additional documentary proofs. Said proofs were
submitted on March 27, 1981 attached to petitioners' pleading entitled, "Manifestation,
Presentation of Additional Evidence and Submission of the Case for Resolution." 3
On November 28, 1981, petitioners filed before the same Board a "Manifestation and Urgent
Motion to Resolve or Decide Main Petition" praying that the case be resolved or decided not
later than December 10, 1981 to enable them, in case of denial, to avail of whatever remedy
they may have under the law for the protection of their interests before their 1975 model cabs
are phased-out on January 1, 1982.
Petitioners, through its President, allegedly made personal follow-ups of the case, but was
later informed that the records of the case could not be located.

1974

1981

1975

1982

A. Did BOT and BLT promulgate the questioned memorandum circulars in

accord with the manner required by Presidential Decree No. 101, thereby
safeguarding the petitioners' constitutional right to procedural due process?

1976

1983

B. Granting, arguendo, that respondents did comply with the procedural

requirements imposed by Presidential Decree No. 101, would the
implementation and enforcement of the assailed memorandum circulars
violate the petitioners' constitutional rights to.

On December 29, 1981, the present Petition was instituted wherein the following queries
were posed for consideration by this Court:

(1) Equal protection of the law;

1977

(2) Substantive due process; and

etc.

(3) Protection against arbitrary and

unreasonable
classification
and
standard?

etc.

Strict compliance here is desired. 2

In accordance therewith, cabs of model 1971 were phase-out in registration year 1978; those
of model 1972, in 1979; those of model 1973, in 1980; and those of model 1974, in 1981.
On January 27, 1981, petitioners filed a Petition with the BOT, docketed as Case No. 807553, seeking to nullify MC No. 77-42 or to stop its implementation; to allow the registration
and operation in 1981 and subsequent years of taxicabs of model 1974, as well as those of
earlier models which were phased-out, provided that, at the time of registration, they are
roadworthy and fit for operation.

On Procedural and Substantive Due Process:

Presidential Decree No. 101 grants to the Board of Transportation the power
4. To fix just and reasonable standards, classification, regulations,
practices, measurements, or service to be furnished, imposed, observed,
and followed by operators of public utility motor vehicles.
Section 2 of said Decree provides procedural guidelines for said agency to follow in the
exercise of its powers:

Sec. 2. Exercise of powers. In the exercise of the powers granted in the

preceding section, the Board shag proceed promptly along the method of
legislative inquiry.
Apart from its own investigation and studies, the Board, in its discretion,
may require the cooperation and assistance of the Bureau of
Transportation, the Philippine Constabulary, particularly the Highway Patrol
Group, the support agencies within the Department of Public Works,
Transportation and Communications, or any other government office or
agency that may be able to furnish useful information or data in the
formulation of the Board of any policy, plan or program in the
implementation of this Decree.
The Board may also can conferences, require the submission of position
papers or other documents, information, or data by operators or other
persons that may be affected by the implementation of this Decree, or
employ any other suitable means of inquiry.
In support of their submission that they were denied procedural due process, petitioners
contend that they were not caged upon to submit their position papers, nor were they ever
summoned to attend any conference prior to the issuance of the questioned BOT Circular.
It is clear from the provision aforequoted, however, that the leeway accorded the Board gives
it a wide range of choice in gathering necessary information or data in the formulation of any
policy, plan or program. It is not mandatory that it should first call a conference or require the
submission of position papers or other documents from operators or persons who may be
affected, this being only one of the options open to the Board, which is given wide
discretionary authority. Petitioners cannot justifiably claim, therefore, that they were deprived
of procedural due process. Neither can they state with certainty that public respondents had
not availed of other sources of inquiry prior to issuing the challenged Circulars. operators of
public conveyances are not the only primary sources of the data and information that may be
desired by the BOT.
Dispensing with a public hearing prior to the issuance of the Circulars is neither violative of
procedural due process. As held in Central Bank vs. Hon. Cloribel and Banco Filipino, 44
SCRA 307 (1972):
Pevious notice and hearing as elements of due process, are
constitutionally required for the protection of life or vested property rights,
as well as of liberty, when its limitation or loss takes place in consequence
of a judicial or quasi-judicial proceeding, generally dependent upon a past
act or event which has to be established or ascertained. It is not essential
to the validity of general rules or regulations promulgated to govern future
conduct of a class or persons or enterprises, unless the law provides
otherwise. (Emphasis supplied)
Petitioners further take the position that fixing the ceiling at six (6) years is arbitrary and
oppressive because the roadworthiness of taxicabs depends upon their kind of maintenance
and the use to which they are subjected, and, therefore, their actual physical condition should
be taken into consideration at the time of registration. As public contend, however, it is
impractical to subject every taxicab to constant and recurring evaluation, not to speak of the

fact that it can open the door to the adoption of multiple standards, possible collusion, and
even graft and corruption. A reasonable standard must be adopted to apply to an vehicles
affected uniformly, fairly, and justly. The span of six years supplies that reasonable standard.
The product of experience shows that by that time taxis have fully depreciated, their cost
recovered, and a fair return on investment obtained. They are also generally dilapidated and
no longer fit for safe and comfortable service to the public specially considering that they are
in continuous operation practically 24 hours everyday in three shifts of eight hours per shift.
With that standard of reasonableness and absence of arbitrariness, the requirement of due
process has been met.
On Equal Protection of the Law:
Petitioners alleged that the Circular in question violates their right to equal protection of the
law because the same is being enforced in Metro Manila only and is directed solely towards
the taxi industry. At the outset it should be pointed out that implementation outside Metro
Manila is also envisioned in Memorandum Circular No. 77-42. To repeat the pertinent portion:
For an orderly implementation of this Memorandum Circular, the rules
herein shall immediately be effective in Metro Manila. Its implementation
outside Metro Manila shall be carried out only after the project has been
implemented in Metro Manila and only after the date has been determined
by the Board. 4
In fact, it is the understanding of the Court that implementation of the Circulars in Cebu City is
already being effected, with the BOT in the process of conducting studies regarding the
operation of taxicabs in other cities.
The Board's reason for enforcing the Circular initially in Metro Manila is that taxicabs in this
city, compared to those of other places, are subjected to heavier traffic pressure and more
constant use. This is of common knowledge. Considering that traffic conditions are not the
same in every city, a substantial distinction exists so that infringement of the equal protection
clause can hardly be successfully claimed.
As enunciated in the preambular clauses of the challenged BOT Circular, the overriding
consideration is the safety and comfort of the riding public from the dangers posed by old and
dilapidated taxis. The State, in the exercise, of its police power, can prescribe regulations to
promote the health, morals, peace, good order, safety and general welfare of the people. It
can prohibit all things hurtful to comfort, safety and welfare of society. 5 It may also regulate

property rights. 6 In the language of Chief Justice Enrique M. Fernando "the

necessities imposed by public welfare may justify the exercise of governmental
authority to regulate even if thereby certain groups may plausibly assert that their
interests are disregarded". 7
In so far as the non-application of the assailed Circulars to other transportation services is
concerned, it need only be recalled that the equal protection clause does not imply that the
same treatment be accorded all and sundry. It applies to things or persons Identically or
similarly situated. It permits of classification of the object or subject of the law provided
classification is reasonable or based on substantial distinction, which make for real
differences, and that it must apply equally to each member of the class. 8 What is required

under the equal protection clause is the uniform operation by legal means so that all

persons under Identical or similar circumstance would be accorded the same

treatment both in privilege conferred and the liabilities imposed. 9 The challenged
Circulars satisfy the foregoing criteria.
Evident then is the conclusion that the questioned Circulars do not suffer from any
constitutional infirmity. To declare a law unconstitutional, the infringement of constitutional
right must be clear, categorical and undeniable. 10
WHEREFORE, the Writs prayed for are denied and this Petition is hereby dismissed. No
costs.
SO ORDERED.

FIRST DIVISION

"Thank you for your cooperation and whatever assistance that may
be extended by your association to the MMDA personnel who will
be directing traffic in the area.

[G.R. No. 135962. March 27, 2000]

"Finally, we are furnishing you with a copy of the handwritten

instruction of the President on the matter.

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, petitioner, vs. BELAIR VILLAGE ASSOCIATION, INC., respondent.

"Very truly yours,

DECISION
PUNO, J.:

PROSPERO I. ORETA

Not infrequently, the government is tempted to take legal shortcuts to solve urgent
problems of the people. But even when government is armed with the best of
intention, we cannot allow it to run roughshod over the rule of law. Again, we let the
hammer fall and fall hard on the illegal attempt of the MMDA to open for public use a
private road in a private subdivision. While we hold that the general welfare should
be promoted, we stress that it should not be achieved at the expense of the rule of
law. h Y

Chairman"[1]

Petitioner MMDA is a government agency tasked with the delivery of basic services
in Metro Manila. Respondent Bel-Air Village Association, Inc. (BAVA) is a non-stock,
non-profit corporation whose members are homeowners in Bel-Air Village, a private
subdivision in Makati City. Respondent BAVA is the registered owner of Neptune
Street, a road inside Bel-Air Village.
On December 30, 1995, respondent received from petitioner, through its Chairman,
a notice dated December 22, 1995 requesting respondent to open Neptune Street
to public vehicular traffic starting January 2, 1996. The notice reads: Court

On the same day, respondent was apprised that the perimeter wall separating the
subdivision from the adjacent Kalayaan Avenue would be demolished. Sppedsc
On January 2, 1996, respondent instituted against petitioner before the Regional
Trial Court, Branch 136, Makati City, Civil Case No. 96-001 for injunction.
Respondent prayed for the issuance of a temporary restraining order and
preliminary injunction enjoining the opening of Neptune Street and prohibiting the
demolition of the perimeter wall. The trial court issued a temporary restraining order
the following day.
On January 23, 1996, after due hearing, the trial court denied issuance of a
preliminary injunction.[2] Respondent questioned the denial before the Court of
Appeals in CA-G.R. SP No. 39549. The appellate court conducted an ocular
inspection of Neptune Street[3] and on February 13, 1996, it issued a writ of
preliminary injunction enjoining the implementation of the MMDAs proposed action.
[4]

"SUBJECT: NOTICE of the Opening of Neptune Street to Traffic

"Dear President Lindo,
"Please be informed that pursuant to the mandate of the MMDA law
or Republic Act No. 7924 which requires the Authority to rationalize
the use of roads and/or thoroughfares for the safe and convenient
movement of persons, Neptune Street shall be opened to vehicular
traffic effective January 2, 1996.
"In view whereof, the undersigned requests you to voluntarily open
the points of entry and exit on said street.

On January 28, 1997, the appellate court rendered a Decision on the merits of the
case finding that the MMDA has no authority to order the opening of Neptune Street,
a private subdivision road and cause the demolition of its perimeter walls. It held
that the authority is lodged in the City Council of Makati by ordinance. The decision
disposed of as follows:Jurissc
"WHEREFORE, the Petition is GRANTED; the challenged Order
dated January 23, 1995, in Civil Case No. 96-001, is SET ASIDE
and the Writ of Preliminary Injunction issued on February 13, 1996
is hereby made permanent.

"For want of sustainable substantiation, the Motion to Cite Roberto

L. del Rosario in contempt is denied.[5]
"No pronouncement as to costs.
"SO ORDERED."[6]
The Motion for Reconsideration of the decision was denied on September 28, 1998.
Hence, this recourse. Jksm
Petitioner MMDA raises the following questions:
"I
HAS
THE
METROPOLITAN
MANILA
DEVELOPMENT
AUTHORITY (MMDA) THE MANDATE TO OPEN NEPTUNE
STREET TO PUBLIC TRAFFIC PURSUANT TO ITS
REGULATORY AND POLICE POWERS?
II
IS THE PASSAGE OF AN ORDINANCE A CONDITION
PRECEDENT BEFORE THE MMDA MAY ORDER THE OPENING
OF SUBDIVISION ROADS TO PUBLIC TRAFFIC?
III
IS RESPONDENT BEL-AIR VILLAGE ASSOCIATION, INC.
ESTOPPED FROM DENYING OR ASSAILING THE AUTHORITY
OF THE MMDA TO OPEN THE SUBJECT STREET? Jlexj
V
WAS RESPONDENT DEPRIVED OF DUE PROCESS DESPITE
THE SEVERAL MEETINGS HELD BETWEEN MMDA AND THE
AFFECTED BEL-AIR RESIDENTS AND BAVA OFFICERS?
V
HAS RESPONDENT COME TO COURT WITH UNCLEAN
HANDS?"[7]

Neptune Street is owned by respondent BAVA. It is a private road inside Bel-Air

Village, a private residential subdivision in the heart of the financial and commercial
district of Makati City. It runs parallel to Kalayaan Avenue, a national road open to
the general public. Dividing the two (2) streets is a concrete perimeter wall
approximately fifteen (15) feet high. The western end of Neptune Street intersects
Nicanor Garcia, formerly Reposo Street, a subdivision road open to public vehicular
traffic, while its eastern end intersects Makati Avenue, a national road. Both ends of
Neptune Street are guarded by iron gates. Edp mis
Petitioner MMDA claims that it has the authority to open Neptune Street to public
traffic because it is an agent of the state endowed with police power in the delivery
of basic services in Metro Manila. One of these basic services is traffic management
which involves the regulation of the use of thoroughfares to insure the safety,
convenience and welfare of the general public. It is alleged that the police power of
MMDA was affirmed by this Court in the consolidated cases of Sangalang v.
Intermediate Appellate Court.[8] From the premise that it has police power, it is now
urged that there is no need for the City of Makati to enact an ordinance opening
Neptune street to the public.[9]
Police power is an inherent attribute of sovereignty. It has been defined as the
power vested by the Constitution in the legislature to make, ordain, and establish all
manner of wholesome and reasonable laws, statutes and ordinances, either with
penalties or without, not repugnant to the Constitution, as they shall judge to be for
the good and welfare of the commonwealth, and for the subjects of the same. [10] The
power is plenary and its scope is vast and pervasive, reaching and justifying
measures for public health, public safety, public morals, and the general welfare. [11]
It bears stressing that police power is lodged primarily in the National Legislature.
[12]
It cannot be exercised by any group or body of individuals not possessing
legislative power.[13]The National Legislature, however, may delegate this power to
the President and administrative boards as well as the lawmaking bodies of
municipal corporations or local government units. [14] Once delegated, the agents can
exercise only such legislative powers as are conferred on them by the national
lawmaking body.[15]
A local government is a "political subdivision of a nation or state which is constituted
by law and has substantial control of local affairs." [16] The Local Government Code of
1991 defines a local government unit as a "body politic and corporate" [17]-- one
endowed with powers as a political subdivision of the National Government and as a
corporate entity representing the inhabitants of its territory. [18] Local government

units are the provinces, cities, municipalities and barangays. [19] They are also the
territorial and political subdivisions of the state.[20]
Our Congress delegated police power to the local government units in the
Local Government Code of 1991. This delegation is found in Section 16 of the
same Code, known as the general welfare clause, viz: Chief
"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."[21]
Local government units exercise police power through their respective
legislative bodies. The legislative body of the provincial government is
the sangguniang panlalawigan, that of the city government is the sangguniang
panlungsod, that of the municipal government is the sangguniang bayan, and that
of the barangay is the sangguniang barangay. The Local Government Code of
1991 empowers the sangguniang panlalawigan, sangguniang panlungsod and
sangguniang bayan to "enact ordinances, approve resolutions and appropriate
funds for the general welfare of the [province, city or municipality, as the case may
be], 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 x x x."[22] The same Code gives the sangguniang barangay the power to
"enact ordinances as may be necessary to discharge the responsibilities conferred
upon it by law or ordinance and to promote the general welfare of the inhabitants
thereon."[23]
Metropolitan or Metro Manila is a body composed of several local government
units - i.e., twelve (12) cities and five (5) municipalities, namely, the cities of
Caloocan, Manila, Mandaluyong, Makati, Pasay, Pasig, Quezon, Muntinlupa, Las
Pinas, Marikina, Paranaque and Valenzuela, and the municipalities of Malabon, ,

Navotas, , Pateros, San Juan and Taguig. With the passage of Republic Act (R.
A.) No. 7924[24] in 1995, Metropolitan Manila was declared as a "special
development and administrative region" and the Administration of "metrowide" basic services affecting the region placed under "a development
authority" referred to as the MMDA.[25]
"Metro-wide services" 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 local government
units comprising Metro Manila."[26] There are seven (7) basic metro-wide services
and the scope of these services cover the following: (1) development planning; (2)
transport and traffic management; (3) solid waste disposal and management; (4)
flood control and sewerage management; (5) urban renewal, zoning and land use
planning, and shelter services; (6) health and sanitation, urban protection and
pollution control; and (7) public safety. The basic service of transport and traffic
management includes the following: Lexjuris
"(b) Transport and traffic management which include the
formulation, coordination, and monitoring of policies,
standards, programs and projects to rationalize the existing
transport operations, infrastructure requirements, the use of
thoroughfares, and promotion of safe and convenient
movement of persons and goods; provision for the mass
transport system and the institution of a system to regulate
road users; administration and implementation of all traffic
enforcement operations, traffic engineering services and traffic
education programs, including the institution of a single
ticketing system in Metropolitan Manila;"[27]
In the delivery of the seven (7) basic services, the MMDA has the following
powers and functions: Esm
"Sec. 5. Functions and powers of the Metro Manila Development
Authority.The MMDA shall:
(a) Formulate, coordinate and regulate the implementation of
medium and long-term plans and programs for the delivery of
metro-wide services, land use and physical development within
Metropolitan Manila, consistent with national development
objectives and priorities;

(b) Prepare, coordinate and regulate the implementation of

medium-term investment programs for metro-wide services which
shall indicate sources and uses of funds for priority programs and
projects, and which shall include the packaging of projects and
presentation to funding institutions; Esmsc
(c) Undertake and manage on its own metro-wide programs and
projects for the delivery of specific services under its jurisdiction,
subject to the approval of the Council. For this purpose, MMDA can
create appropriate project management offices;
(d) Coordinate and monitor the implementation of such plans,
programs and projects in Metro Manila; identify bottlenecks and
adopt solutions to problems of implementation;
(e) The MMDA shall set the policies concerning traffic in Metro
Manila, and shall coordinate and regulate the implementation
of all programs and projects concerning traffic management,
specifically pertaining to enforcement, engineering and
education. Upon request, it shall be extended assistance and
cooperation, including but not limited to, assignment of
personnel, by all other government agencies and offices
concerned;

basic services to the local government units, when deemed

necessary subject to prior coordination with and consent of the local
government unit concerned." Jurismis
The implementation of the MMDAs plans, programs and projects is undertaken by
the local government units, national government agencies, accredited peoples
organizations, non-governmental organizations, and the private sector as well as by
the MMDA itself. For this purpose, the MMDA has the power to enter into contracts,
memoranda of agreement and other cooperative arrangements with these bodies
for the delivery of the required services within Metro Manila. [28]
The governing board of the MMDA is the Metro Manila Council. The Council is
composed of the mayors of the component 12 cities and 5 municipalities, the
president of the Metro Manila Vice-Mayors League and the president of the Metro
Manila Councilors League.[29] The Council is headed by a Chairman who is
appointed by the President and vested with the rank of cabinet member. As the
policy-making body of the MMDA, the Metro Manila Council approves metro-wide
plans, programs and projects, and issues the necessary rules and regulations for
the implementation of said plans; it approves the annual budget of the MMDA and
promulgates the rules and regulations for the delivery of basic services, collection of
service and regulatory fees, fines and penalties. These functions are particularly
enumerated as follows: LEX
"Sec. 6. Functions of the Metro Manila Council. -

(f) Install and administer a single ticketing system, fix, impose

and collect fines and penalties for all kinds of violations of
traffic rules and regulations, whether moving or non-moving in
nature, and confiscate and suspend or revoke drivers licenses
in the enforcement of such traffic laws and regulations, the
provisions of RA 4136 and PD 1605 to the contrary
notwithstanding. For this purpose, the Authority shall impose
all traffic laws and regulations in Metro Manila, through its
traffic operation center, and may deputize members of the PNP,
traffic enforcers of local government units, duly licensed
security guards,
or members of non-governmental
organizations to whom may be delegated certain authority,
subject to such conditions and requirements as the Authority
may impose; and
(g) Perform other related functions required to achieve the
objectives of the MMDA, including the undertaking of delivery of

(a) The Council shall be the policy-making body of the MMDA;

(b) It shall approve metro-wide plans, programs and projects and
issue rules and regulations deemed necessary by the MMDA to
carry out the purposes of this Act;
(c) It may increase the rate of allowances and per diems of the
members of the Council to be effective during the term of the
succeeding Council. It shall fix the compensation of the officers and
personnel of the MMDA, and approve the annual budget thereof for
submission to the Department of Budget and Management (DBM);
(d) It shall promulgate rules and regulations and set policies and
standards for metro-wide application governing the delivery of basic
services, prescribe and collect service and regulatory fees, and
impose and collect fines and penalties." Jj sc

Clearly, the scope of the MMDAs function is limited to the delivery of the seven (7)
basic services. One of these is transport and traffic management which includes the
formulation and monitoring of policies, standards and projects to rationalize the
existing transport operations, infrastructure requirements, the use of thoroughfares
and promotion of the safe movement of persons and goods. It also covers the mass
transport system and the institution of a system of road regulation, the
administration of all traffic enforcement operations, traffic engineering services and
traffic education programs, including the institution of a single ticketing system in
Metro Manila for traffic violations. Under this service, the MMDA is expressly
authorized "to set the policies concerning traffic" and "coordinate and regulate the
implementation of all traffic management programs." In addition, the MMDA may
"install and administer a single ticketing system," fix, impose and collect fines and
penalties for all traffic violations. Ca-lrsc
It will be noted that the powers of the MMDA are limited to the following acts:
formulation, coordination, regulation, implementation, preparation, management,
monitoring, setting of policies, installation of a system and administration. There is
no syllable in R. A. No. 7924 that grants the MMDA police power, let alone
legislative power. Even the Metro Manila Council has not been delegated any
legislative power. Unlike the legislative bodies of the local government units, there is
no provision in R. A. No. 7924 that empowers the MMDA or its Council to "enact
ordinances, approve resolutions and appropriate funds for the general welfare" of
the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a
"development authority."[30] It is an agency created for the purpose of laying down
policies and coordinating with the various national government agencies, peoples
organizations, non-governmental organizations and the private sector for the
efficient and expeditious delivery of basic services in the vast metropolitan area. All
its functions are administrative in nature and these are actually summed up in
the charter itself, viz:
"Sec. 2. Creation of the Metropolitan Manila Development Authority.
-- x x x.

Commission (MMC), the predecessor of the MMDA, as an exercise of police power.

The first Sangalang decision was on the merits of the petition, [33] while the second
decision denied reconsideration of the first case and in addition discussed the case
of Yabut v. Court of Appeals.[34]
Sangalang v. IAC involved five (5) consolidated petitions filed by respondent BAVA
and three residents of Bel-Air Village against other residents of the Village and the
Ayala Corporation, formerly the Makati Development Corporation, as the developer
of the subdivision. The petitioners sought to enforce certain restrictive easements in
the deeds of sale over their respective lots in the subdivision. These were the
prohibition on the setting up of commercial and advertising signs on the lots, and the
condition that the lots be used only for residential purposes. Petitioners alleged that
respondents, who were residents along Jupiter Street of the subdivision, converted
their residences into commercial establishments in violation of the "deed
restrictions," and that respondent Ayala Corporation ushered in the full
commercialization" of Jupiter Street by tearing down the perimeter wall that
separated the commercial from the residential section of the village. [35]
The petitions were dismissed based on Ordinance No. 81 of the Municipal Council
of Makati and Ordinance No. 81-01 of the Metro Manila Commission (MMC).
Municipal Ordinance No. 81 classified Bel-Air Village as a Class A Residential Zone,
with its boundary in the south extending to the center line of Jupiter Street. The
Municipal Ordinance was adopted by the MMC under the Comprehensive Zoning
Ordinance for the National Capital Region and promulgated as MMC Ordinance No.
81-01. Bel-Air Village was indicated therein as bounded by Jupiter Street and the
block adjacent thereto was classified as a High Intensity Commercial Zone. [36]
We ruled that since both Ordinances recognized Jupiter Street as the boundary
between Bel-Air Village and the commercial district, Jupiter Street was not for the
exclusive benefit of Bel-Air residents. We also held that the perimeter wall on said
street was constructed not to separate the residential from the commercial blocks
but simply for security reasons, hence, in tearing down said wall, Ayala Corporation
did not violate the "deed restrictions" in the deeds of sale. Scc-alr

The MMDA shall perform planning, monitoring and coordinative

functions, and in the process exercise regulatory and
supervisory authority over the delivery of metro-wide services
within Metro Manila, without diminution of the autonomy of the local
government units concerning purely local matters." [31]

We upheld the ordinances, specifically MMC Ordinance No. 81-01, as a legitimate

exercise of police power.[37] The power of the MMC and the Makati Municipal
Council to enact zoning ordinances for the general welfare prevailed over the "deed
restrictions".

Petitioner cannot seek refuge in the cases of Sangalang v. Intermediate Appellate

Court[32] where we upheld a zoning ordinance issued by the Metro Manila

In the second Sangalang/Yabut decision, we held that the opening of Jupiter Street
was warranted by the demands of the common good in terms of "traffic

decongestion and public convenience." Jupiter was opened by the Municipal Mayor
to alleviate traffic congestion along the public streets adjacent to the Village. [38] The
same reason was given for the opening to public vehicular traffic of Orbit Street, a
road inside the same village. The destruction of the gate in Orbit Street was also
made under the police power of the municipal government. The gate, like the
perimeter wall along Jupiter, was a public nuisance because it hindered and
impaired the use of property, hence, its summary abatement by the mayor was
proper and legal.[39]
Contrary to petitioners claim, the two Sangalang cases do not apply to the
case at bar. Firstly, both involved zoning ordinances passed by the municipal
council of Makati and the MMC. In the instant case, the basis for the proposed
opening of Neptune Street is contained in the notice of December 22, 1995 sent by
petitioner to respondent BAVA, through its president. The notice does not cite any
ordinance or law, either by the Sangguniang Panlungsod of Makati City or by the
MMDA, as the legal basis for the proposed opening of Neptune Street. Petitioner
MMDA simply relied on its authority under its charter "to rationalize the use of roads
and/or thoroughfares for the safe and convenient movement of persons."
Rationalizing the use of roads and thoroughfares is one of the acts that fall within
the scope of transport and traffic management. By no stretch of the imagination,
however, can this be interpreted as an express or implied grant of ordinance-making
power, much less police power. Misjuris
Secondly, the MMDA is not the same entity as the MMC
in Sangalang. Although the MMC is the forerunner of the present MMDA, an
examination of Presidential Decree (P. D.) No. 824, the charter of the MMC,
shows that the latter possessed greater powers which were not bestowed on
the present MMDA. Jjlex
Metropolitan Manila was first created in 1975 by Presidential Decree (P.D.) No. 824.
It comprised the Greater Manila Area composed of the contiguous four (4) cities of
Manila, Quezon, Pasay and Caloocan, and the thirteen (13) municipalities of Makati,
Mandaluyong, San Juan, Las Pinas, Malabon, Navotas, Pasig, Pateros, Paranaque,
Marikina, Muntinlupa and Taguig in the province of Rizal, and Valenzuela in the
province of Bulacan.[40] Metropolitan Manila was created as a response to the finding
that the rapid growth of population and the increase of social and economic
requirements in these areas demand a call for simultaneous and unified
development; that the public services rendered by the respective local governments
could be administered more efficiently and economically if integrated under a
system of central planning; and this coordination, "especially in the maintenance of
peace and order and the eradication of social and economic ills that fanned the

flames of rebellion and discontent [were] part of reform measures under Martial Law
essential to the safety and security of the State." [41]
Metropolitan Manila was established as a "public corporation" with the
following powers: Calrs-pped
"Section 1. Creation of the Metropolitan Manila.There is hereby
created a public corporation, to be known as the Metropolitan
Manila, vested with powers and attributes of a corporation
including the power to make contracts, sue and be sued,
acquire, purchase, expropriate, hold, transfer and dispose of
property and such other powers as are necessary to carry out
its purposes. The Corporation shall be administered by a
Commission created under this Decree."[42]
The administration of Metropolitan Manila was placed under the Metro Manila
Commission (MMC) vested with the following powers:
"Sec. 4. Powers and Functions of the Commission. - The
Commission shall have the following powers and functions:
1. To act as a central government to establish and administer
programs and provide services common to the area;
2. To levy and collect taxes and special assessments, borrow and
expend money and issue bonds, revenue certificates, and other
obligations of indebtedness. Existing tax measures should,
however, continue to be operative until otherwise modified or
repealed by the Commission;
3. To charge and collect fees for the use of public service facilities;
4. To appropriate money for the operation of the metropolitan
government and review appropriations for the city and municipal
units within its jurisdiction with authority to disapprove the same if
found to be not in accordance with the established policies of the
Commission, without prejudice to any contractual obligation of the
local government units involved existing at the time of approval of
this Decree;

5. To review, amend, revise or repeal all ordinances,

resolutions and acts of cities and municipalities within
Metropolitan Manila;
6. To enact or approve ordinances, resolutions and to fix
penalties for any violation thereof which shall not exceed a fine
of P10,000.00 or imprisonment of six years or both such fine
and imprisonment for a single offense;
7. To perform general administrative, executive and policy-making
functions;
8. To establish a fire control operation center, which shall direct the
fire services of the city and municipal governments in the
metropolitan area;

15. To perform such other tasks as may be assigned or directed by

the President of the Philippines." Sc jj
The MMC was the "central government" of Metro Manila for the purpose of
establishing and administering programs providing services common to the area. As
a "central government" it had the power to levy and collect taxes and special
assessments, the power to charge and collect fees; the power to appropriate money
for its operation, and at the same time, review appropriations for the city and
municipal units within its jurisdiction. It was bestowed the power to enact or approve
ordinances, resolutions and fix penalties for violation of such ordinances and
resolutions. It also had the power to review, amend, revise or repeal all ordinances,
resolutions and acts of any of the four (4) cities and thirteen (13) municipalities
comprising Metro Manila.
P. D. No. 824 further provided:
"Sec. 9. Until otherwise provided, the governments of the four cities
and thirteen municipalities in the Metropolitan Manila shall continue
to exist in their present form except as may be inconsistent with this
Decree. The members of the existing city and municipal
councils in Metropolitan Manila shall, upon promulgation of
this Decree, and until December 31, 1975, become members of
the Sangguniang Bayan which is hereby created for every city
and municipality of Metropolitan Manila.

9. To establish a garbage disposal operation center, which shall

direct garbage collection and disposal in the metropolitan area;
10. To establish and operate a transport and traffic center, which
shall direct traffic activities; Jjjuris
11. To coordinate and monitor governmental and private activities
pertaining to essential services such as transportation, flood control
and drainage, water supply and sewerage, social, health and
environmental services, housing, park development, and others;

In addition, the Sangguniang Bayan shall be composed of as many

barangay captains as may be determined and chosen by the
Commission, and such number of representatives from other
sectors of the society as may be appointed by the President upon
recommendation of the Commission.

12. To insure and monitor the undertaking of a comprehensive

social, economic and physical planning and development of the
area;
13. To study the feasibility of increasing barangay participation in
the affairs of their respective local governments and to propose to
the President of the Philippines definite programs and policies for
implementation;
14. To submit within thirty (30) days after the close of each fiscal
year an annual report to the President of the Philippines and to
submit a periodic report whenever deemed necessary; and

x x x.
The Sangguniang Bayan may recommend to the Commission
ordinances, resolutions or such measures as it may adopt;
Provided, that no such ordinance, resolution or measure shall
become effective, until after its approval by the Commission;
and Provided further, that the power to impose taxes and other
levies, the power to appropriate money and the power to pass
ordinances or resolutions with penal sanctions shall be vested
exclusively in the Commission."

The creation of the MMC also carried with it the creation of the Sangguniang
Bayan. This was composed of the members of the component city and municipal
councils, barangay captains chosen by the MMC and sectoral representatives
appointed by the President. The Sangguniang Bayan had the power to
recommend to the MMC the adoption of ordinances, resolutions or measures. It
was the MMC itself, however, that possessed legislative powers. All
ordinances, resolutions and measures recommended by the Sangguniang
Bayan were subject to the MMCs approval. Moreover, the power to impose taxes
and other levies, the power to appropriate money, and the power to pass ordinances
or resolutions with penal sanctions were vested exclusively in the MMC. Sce-dp
Thus, Metropolitan Manila had a "central government," i.e., the MMC which
fully possessed legislative and police powers. Whatever legislative powers
the component cities and municipalities had were all subject to review and
approval by the MMC.
After President Corazon Aquino assumed power, there was a clamor to restore
the autonomy of the local government units in Metro Manila. Hence, Sections 1 and
2 of Article X of the 1987 Constitution provided: Sj cj
"Section 1. The territorial and political subdivisions of the Republic
of the Philippines are the provinces, cities, municipalities and
barangays. There shall be autonomous regions in Muslim Mindanao
and the Cordilleras as herein provided.
Section 2. The territorial and political subdivisions shall enjoy local
autonomy."
The Constitution, however, recognized the necessity of creating metropolitan
regions not only in the existing National Capital Region but also in potential
equivalents in the Visayas and Mindanao.[43] Section 11 of the same Article X thus
provided:
"Section 11. The Congress may, by law, create special metropolitan
political subdivisions, subject to a plebiscite as set forth in Section
10 hereof. The component cities and municipalities shall retain their
basic autonomy and shall be entitled to their own local executives
and legislative assemblies. The jurisdiction of the metropolitan
authority that will thereby be created shall be limited to basic
services requiring coordination."

The Constitution itself expressly provides that Congress may, by law, create "special
metropolitan political subdivisions" which shall be subject to approval by a majority
of the votes cast in a plebiscite in the political units directly affected; the jurisdiction
of this subdivision shall be limited to basic services requiring coordination; and the
cities and municipalities comprising this subdivision shall retain their basic
autonomy and their own local executive and legislative assemblies. [44] Pending
enactment of this law, the Transitory Provisions of the Constitution gave the
President of the Philippines the power to constitute the Metropolitan Authority, viz:
"Section 8. Until otherwise provided by Congress, the President
may constitute the Metropolitan Authority to be composed of the
heads of all local government units comprising the Metropolitan
Manila area."[45]
In 1990, President Aquino issued Executive Order (E. O.) No. 392 and
constituted the Metropolitan Manila Authority (MMA). The powers and
functions of the MMC were devolved to the MMA. [46] It ought to be stressed,
however, that not all powers and functions of the MMC were passed to the
MMA. The MMAs power was limited to the "delivery of basic urban services
requiring coordination in Metropolitan Manila." [47] The MMAs governing body,
the Metropolitan Manila Council, although composed of the mayors of the
component cities and municipalities, was merely given the power of: (1)
formulation of policies on the delivery of basic services requiring
coordination and consolidation; and (2) promulgation of resolutions and other
issuances, approval of a code of basic services and the exercise of its rulemaking power.[48]
Under the 1987 Constitution, the local government units became primarily
responsible for the governance of their respective political subdivisions. The MMAs
jurisdiction was limited to addressing common problems involving basic services
that transcended local boundaries. It did not have legislative power. Its power
was merely to provide the local government units technical assistance in the
preparation of local development plans. Any semblance of legislative power it had
was confined to a "review [of] legislation proposed by the local legislative
assemblies to ensure consistency among local governments and with the
comprehensive development plan of Metro Manila," and to "advise the local
governments accordingly."[49]
When R.A. No. 7924 took effect, Metropolitan Manila became a "special
development and administrative region" and the MMDA a "special
development authority" whose functions were "without prejudice to the

autonomy of the affected local government units." The character of the MMDA
was clearly defined in the legislative debates enacting its charter.
R. A. No. 7924 originated as House Bill No. 14170/ 11116 and was introduced by
several legislators led by Dante Tinga, Roilo Golez and Feliciano Belmonte. It was
presented to the House of Representatives by the Committee on Local
Governments chaired by Congressman Ciriaco R. Alfelor. The bill was a product of
Committee consultations with the local government units in the National Capital
Region (NCR), with former Chairmen of the MMC and MMA, [50] and career officials
of said agencies. When the bill was first taken up by the Committee on Local
Governments, the following debate took place:

Under the Constitution is a Metropolitan Authority with coordinative

power. Meaning to say, it coordinates all of the different basic
services which have to be delivered to the constituency. All right.
There is now a problem. Each local government unit is given its respective as a
political subdivision. Kalookan has its powers, as provided for and protected and
guaranteed by the Constitution. All right, the exercise. However, in the exercise of
that power, it might be deleterious and disadvantageous to other local government
units. So, we are forming an authority where all of these will be members and then
set up a policy in order that the basic services can be effectively coordinated. All
right. justice

"THE CHAIRMAN [Hon. Ciriaco Alfelor]: Okay, Let me explain. This

has been debated a long time ago, you know. Its a special we can
create a special metropolitan political subdivision. Supreme

Of course, we cannot deny that the MMDA has to survive. We

have to provide some funds, resources. But it does not
possess any political power. We do not elect the Governor. We
do not have the power to tax. As a matter of fact, I was trying to
intimate to the author that it must have the power to sue and be
sued because it coordinates. All right. It coordinates practically all
these basic services so that the flow and the distribution of the
basic services will be continuous. Like traffic, we cannot deny that.
Its before our eyes. Sewerage, flood control, water system, peace
and order, we cannot deny these. Its right on our face. We have to
look for a solution. What would be the right solution? All right, we
envision that there should be a coordinating agency and it is called
an authority. All right, if you do not want to call it an authority, its
alright. We may call it a council or maybe a management agency.

Actually, there are only six (6) political subdivisions provided for in
the Constitution: barangay, municipality, city, province, and we have
the Autonomous Region of Mindanao and we have the Cordillera.
So we have 6. Now.
HON. [Elias] LOPEZ: May I interrupt, Mr. Chairman. In the case of
the Autonomous Region, that is also specifically mandated by the
Constitution.
THE CHAIRMAN: Thats correct. But it is considered to be a political
subdivision. What is the meaning of a political subdivision?
Meaning to say, that it has its own government, it has its own
political personality, it has the power to tax, and all
governmental powers: police power and everything. All right.
Authority is different; because it does not have its own
government. It is only a council, it is an organization of
political subdivision, powers, no, which is not imbued with any
political power. Esmmis
If you go over Section 6, where the powers and functions of
the Metro Manila Development Authority, it is purely
coordinative. And it provides here that the council is policymaking. All right.

x x x."[51]
Clearly, the MMDA is not a political unit of government. The power delegated to
the MMDA is that given to the Metro Manila Council to promulgate administrative
rules and regulations in the implementation of the MMDAs functions. There is no
grant of authority to enact ordinances and regulations for the general welfare
of the inhabitants of the metropolis. This was explicitly stated in the last
Committee deliberations prior to the bills presentation to Congress. Thus: Ed-p
"THE CHAIRMAN: Yeah, but we have to go over the suggested
revision. I think this was already approved before, but it was
reconsidered in view of the proposals, set-up, to make the MMDA
stronger. Okay, so if there is no objection to paragraph "f" And then
next is paragraph "b," under Section 6. "It shall approve metro-

wide plans, programs and projects and issue ordinances or

resolutions deemed necessary by the MMDA to carry out the
purposes of this Act." Do you have the powers? Does the
MMDA because that takes the form of a local government unit,
a political subdivision.
HON. [Feliciano] BELMONTE: Yes, I believe so, your Honor. When
we say that it has the policies, its very clear that those policies must
be followed. Otherwise, whats the use of empowering it to come out
with policies. Now, the policies may be in the form of a resolution or
it may be in the form of a ordinance. The term "ordinance" in this
case really gives it more teeth, your honor. Otherwise, we are going
to see a situation where you have the power to adopt the policy but
you cannot really make it stick as in the case now, and I think here
is Chairman Bunye. I think he will agree that that is the case now.
Youve got the power to set a policy, the body wants to follow your
policy, then we say lets call it an ordinance and see if they will not
follow it.
THE CHAIRMAN: Thats very nice. I like that. However, there is a
constitutional impediment. You are making this MMDA a
political subdivision. The creation of the MMDA would be
subject to a plebiscite. That is what Im trying to avoid. Ive been
trying to avoid this kind of predicament. Under the
Constitution it states: if it is a political subdivision, once it is
created it has to be subject to a plebiscite. Im trying to make
this as administrative. Thats why we place the Chairman as a
cabinet rank.
HON. BELMONTE: All right, Mr. Chairman, okay, what you are
saying there is .
THE CHAIRMAN: In setting up ordinances, it is a political
exercise. Believe me.
HON. [Elias] LOPEZ: Mr. Chairman, it can be changed into
issuances of rules and regulations. That would be it shall also
be enforced. Jksm
HON. BELMONTE: Okay, I will .

HON. LOPEZ: And you can also say that violation of such rule,
you impose a sanction. But you know, ordinance has a
different legal connotation.
HON. BELMONTE: All right. I defer to that opinion, your
Honor. sc
THE CHAIRMAN: So instead of ordinances, say rules and
regulations.
HON. BELMONTE: Or resolutions. Actually, they are actually
considering resolutions now.
THE CHAIRMAN: Rules and resolutions.
HON. BELMONTE: Rules, regulations and resolutions."[52]
The draft of H. B. No. 14170/ 11116 was presented by the Committee to the House
of Representatives. The explanatory note to the bill stated that the proposed MMDA
is a "development authority" which is a "national agency, not a political government
unit."[53] The explanatory note was adopted as the sponsorship speech of the
Committee on Local Governments. No interpellations or debates were made on the
floor and no amendments introduced. The bill was approved on second reading on
the same day it was presented.[54]
When the bill was forwarded to the Senate, several amendments were made. These
amendments, however, did not affect the nature of the MMDA as originally
conceived in the House of Representatives.[55]
It is thus beyond doubt that the MMDA is not a local government unit or a
public corporation endowed with legislative power. It is not even a "special
metropolitan political subdivision" as contemplated in Section 11, Article X of the
Constitution. The creation of a "special metropolitan political subdivision" requires
the approval by a majority of the votes cast in a plebiscite in the political units
directly affected.[56] R. A. No. 7924 was not submitted to the inhabitants of Metro
Manila in a plebiscite. The Chairman of the MMDA is not an official elected by the
people, but appointed by the President with the rank and privileges of a cabinet
member. In fact, part of his function is to perform such other duties as may be
assigned to him by the President, [57] whereas in local government units, the
President
merely
exercises
supervisory
authority.
This
emphasizes
the administrative character of the MMDA. Newmiso

Clearly then, the MMC under P. D. No. 824 is not the same entity as the MMDA
under R. A. No. 7924. Unlike the MMC, the MMDA has no power to enact
ordinances for the welfare of the community. It is the local government units,
acting through their respective legislative councils, that possess legislative power
and police power. In the case at bar, the Sangguniang Panlungsod of Makati City
did not pass any ordinance or resolution ordering the opening of Neptune Street,
hence, its proposed opening by petitioner MMDA is illegal and the respondent Court
of Appeals did not err in so ruling. We desist from ruling on the other issues as they
are unnecessary. Esmso
We stress that this decision does not make light of the MMDAs noble efforts to solve
the chaotic traffic condition in Metro Manila. Everyday, traffic jams and traffic
bottlenecks plague the metropolis. Even our once sprawling boulevards and
avenues are now crammed with cars while city streets are clogged with motorists
and pedestrians. Traffic has become a social malaise affecting our peoples
productivity and the efficient delivery of goods and services in the country. The
MMDA was created to put some order in the metropolitan transportation system but
unfortunately the powers granted by its charter are limited. Its good intentions
cannot justify the opening for public use of a private street in a private subdivision
without any legal warrant. The promotion of the general welfare is not antithetical to
the preservation of the rule of law. Sdjad
IN VIEW WHEREOF, the petition is denied. The Decision and Resolution of the
Court of Appeals in CA-G.R. SP No. 39549 are affirmed. Sppedsc
SO ORDERED.

G.R. No. L-119694 May 22, 1995

allocation of "Comelec Space" for their information, guidance and

compliance.

PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of 139 members, represented by
its President, Amado P. Macasaet and its Executive Director Ermin F. Garcia,
Jr., petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION

FELICIANO, J.:
The Philippine Press Institute, Inc. ("PPI") is before this Court assailing the constitutional
validity of Resolution No. 2772 issued by respondent Commission on Elections ("Comelec")
and its corresponding Comelec directive dated 22 March 1995, through a Petition
for Certiorari and Prohibition. Petitioner PPI is a non-stock, non-profit organization of
newspaper and magazine publishers.
On 2 March 1995, Comelec promulgated Resolution No. 2772, which reads in part:
xxx xxx xxx
Sec. 2. Comelec Space. The Commission shall procure free print space
of not less than one half (1/2) page in at least one newspaper of general
circulation in every province or city for use as "Comelec Space" from March
6, 1995 in the case of candidates for senator and from March 21, 1995 until
May 12, 1995. In the absence of said newspaper, "Comelec Space" shall
be obtained from any magazine or periodical of said province or city.
Sec. 3. Uses of Comelec Space. "Comelec Space" shall be allocated by
the Commission, free of charge, among all candidates within the area in
which the newspaper, magazine or periodical is circulated to enable the
candidates to make known their qualifications, their stand on public issues
and their platforms and programs of government.
"Comelec Space" shall also be used by the Commission for dissemination
of vital election information.
Sec. 4. Allocation of Comelec Space. (a) "Comelec Space" shall also
be available to all candidatesduring the periods stated in Section 2 hereof.
Its allocation shall be equal and impartial among all candidates for the
same office. All candidates concerned shall be furnished a copy of the

(b) Any candidate desiring to avail himself of "Comelec Space" from

newspapers or publications based in the Metropolitan Manila Area shall
submit an application therefor, in writing, to the Committee on Mass Media
of the Commission. Any candidate desiring to avail himself of "Comelec
Space" in newspapers or publications based in the provinces shall submit
his application therefor, in writing, to the Provincial Election Supervisor
concerned. Applications for availment of "Comelec Space" maybe filed at
any time from the date of effectivity of this Resolution.
(c) The Committee on Mass Media and the Provincial Election Supervisors
shall allocate
available"Comelec
Space" among
the
candidates concerned by lottery of which said candidates shall be notified
in advance, in writing, to be present personally or by representative to
witness the lottery at the date, time and place specified in the notice. Any
party objecting to the result of the lottery may appeal to the Commission.
(d) The candidates concerned shall be notified by the Committee on Mass
Media or the Provincial Election Supervisor, as the case maybe, sufficiently
in advance and in writing of the date of issue and the newspaper or
publication allocated to him, and the time within which he must submit the
written material for publication in the "Comelec Space".
xxx xxx xxx
Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers.
No newspaper or publication shall allow to be printed or published in the
news, opinion, features, or other sections of the newspaper or publication
accounts or comments which manifestly favor or oppose any candidate or
political party by unduly or repeatedly referring to or including therein said
candidate or political party. However, unless the facts and circumstances
clearly indicate otherwise, the Commission will respect the determination
by the publisher and/or editors of the newspapers or publications that the
accounts or views published are significant, newsworthy and of public
interest. (Emphasis supplied)
Apparently in implementation of this Resolution, Comelec through Commissioner Regalado
E. Maambong sent identical letters, dated 22 March 1995, to various publishers of
newspapers like the Business World, the Philippine Star, the Malaya and the Philippine
Times Journal, all members of PPI. These letters read as follows:
This is to advise you that pursuant to Resolution No. 2772 of the
Commission on Elections, you are directed to provide free print space of

not less than one half (1/2) page for use as "Comelec Space"or similar to
the print support which you have extended during the May 11, 1992
synchronized elections which was 2 full pages for each political party
fielding senatorial candidates, from March 6, 1995 to May 6, 1995, to make
known their qualifications, their stand on public issues and their platforms
and programs of government.
We shall be informing the political parties and candidates to submit directly
to you their pictures, biographical data, stand on key public
issues and platforms of government either as raw data or in the form
of positives or camera-ready materials.
Please be reminded that the political parties/candidates may be
accommodated in your publication any day upon receipt of their materials
until May 6, 1995 which is the last day for campaigning.
We trust you to extend your full support and cooperation in this regard.
(Emphasis supplied)
In this Petition for Certiorari and Prohibition with prayer for the issuance of a Temporary
Restraining Order, PPI asks us to declare Comelec Resolution No. 2772 unconstitutional and
void on the ground that it violates the prohibition imposed by the Constitution upon the
government, and any of its agencies, against the taking of private property for public use
without just compensation. Petitioner also contends that the 22 March 1995 letter directives
of Comelec requiring publishers to give free "Comelec Space" and at the same time process
raw data to make it camera-ready, constitute impositions of involuntary servitude, contrary to
the provisions of Section 18 (2), Article III of the 1987 Constitution. Finally, PPI argues that
Section 8 of Comelec Resolution No. 2772 is violative of the constitutionally guaranteed
freedom of speech, of the press and of expression. 1
On 20 April 1995, this Court issued a Temporary Restraining Order enjoining Comelec from
enforcing and implementing Section 2 of Resolution No. 2772, as well as the Comelec
directives addressed to various print media enterprises all dated 22 March 1995. The Court
also required the respondent to file a Comment on the Petition.
The Office of the Solicitor General filed its Comment on behalf of respondent Comelec
alleging that Comelec Resolution No. 2772 does not impose upon the publishers any
obligation to provide free print space in the newspapers as it does not provide any criminal or
administrative sanction for non-compliance with that Resolution. According to the Solicitor
General, the questioned Resolution merely established guidelines to be followed in
connection with the procurement of "Comelec space," the procedure for and mode of
allocation of such space to candidates and the conditions or requirements for the candidate's
utilization of the "Comelec space" procured. At the same time, however, the Solicitor General
argues that even if the questioned Resolution and its implementing letter directives are
viewed as mandatory, the same would nevertheless be valid as an exercise of the police

power of the State. The Solicitor General also maintains that Section 8 of Resolution No.
2772 is a permissible exercise of the power of supervision or regulation of the Comelec over
the communication and information operations of print media enterprises during the election
period to safeguard and ensure a fair, impartial and credible election. 2
At the oral hearing of this case held on 28 April 1995, respondent Comelec through its
Chairman, Hon. Bernardo Pardo, in response to inquiries from the Chief Justice and other
Members of the Court, stated that Resolution No. 2772, particularly Section 2 thereof and the
22 March 1995 letters dispatched to various members of petitioner PPI, were not intended to
compel those members to supply Comelec with free print space. Chairman Pardo
represented to the Court that Resolution and the related letter-directives were merely
designed to solicit from the publishers the same free print space which many publishers had
voluntarily given to Comelec during the election period relating to the 11 May 1992 elections.
Indeed, the Chairman stated that the Comelec would, that very afternoon, meet and adopt an
appropriate amending or clarifying resolution, a certified true copy of which would forthwith be
filed with the Court.
On 5 May 1995, the Court received from the Office of the Solicitor General a manifestation
which attached a copy of Comelec Resolution No. 2772-A dated 4 May 1995. The operative
portion of this Resolution follows:
NOW THEREFORE, pursuant to the powers vested in it by the
Constitution, the Omnibus Election Code, Republic Acts No. 6646 and
7166 and other election laws, the Commission on Elections RESOLVED to
clarify Sections 2 and 8 of Res. No. 2772 as follows:
1. Section 2 of Res. No. 2772 shall not
be construed to mean as requiring
publishers of the different mass media
print publications to provide print space
under pain of prosecution, whether
administrative, civil or criminal, there
being no sanction or penalty for
violation of said Section provided for
either in said Resolution or in Section
90 of Batas Pambansa Blg. 881,
otherwise known as the Omnibus
Election Code, on the grant of
"Comelec space."
2. Section 8 of Res. No. 2772 shall not
be construed to mean as constituting
prior restraint on the part of publishers
with respect to the printing or
publication of materials in the news,

opinion, features or other sections of

their respective publications or other
accounts or comments, it being clear
from the last sentence of said Section
8 that the Commission shall, "unless
the facts and circumstances clearly
indicate otherwise . . . respect the
determination by the publisher and/or
editors of the newspapers or
publications that the accounts or views
published are significant, newsworthy
and of public interest."
This Resolution shall take effect upon approval. (Emphasis in the original)
While, at this point, the Court could perhaps simply dismiss the Petition for Certiorari and
Prohibition as having become moot and academic, we consider it not inappropriate to pass
upon the first constitutional issue raised in this case. Our hope is to put this issue to rest and
prevent its resurrection.
Section 2 of Resolution No. 2772 is not a model of clarity in expression. Section 1 of
Resolution No. 2772-A did not try to redraft Section 2; accordingly, Section 2 of Resolution
No. 2772 persists in its original form. Thus, we must point out that, as presently worded, and
in particular as interpreted and applied by the Comelec itself in its 22 March 1995 letterdirectives to newspaper publishers, Section 2 of Resolution No. 2772 is clearly susceptible of
the reading that petitioner PPI has given it. That Resolution No. 2772 does not, in express
terms, threaten publishers who would disregard it or its implementing letters with some
criminal or other sanction, does not by itself demonstrate that the Comelec's original intention
was simply to solicit or request voluntary donations of print space from publishers. A written
communication officially directing a print media company to supply free print space,
dispatched by a government (here a constitutional) agency and signed by a member of the
Commission presumably legally authorized to do so, is bound to produce a coercive effect
upon the company so addressed. That the agency may not be legally authorized to impose,
or cause the imposition of, criminal or other sanctions for disregard of such directions, only
aggravates the constitutional difficulties inhearing in the present situation. The enactment or
addition of such sanctions by the legislative authority itself would be open to serious
constitutional objection.
To compel print media companies to donate "Comelec-space" of the dimensions specified in
Section 2 of Resolution No. 2772 (not less than one-half page), amounts to "taking" of private
personal property for public use or purposes. Section 2 failed to specify the
intended frequency of such compulsory "donation:" only once during the period from 6 March
1995 (or 21 March 1995) until 12 May 1995? or everyday or once a week? or as often as
Comelec may direct during the same period? The extent of the taking or deprivation is not
insubstantial; this is not a case of a de minimis temporary limitation or restraint upon the use
of private property. The monetary value of the compulsory "donation," measured by the

advertising rates ordinarily charged by newspaper publishers whether in cities or in nonurban areas, may be very substantial indeed.
The taking of print space here sought to be effected may first be appraised under the rubric of
expropriation of private personal property for public use. The threshold requisites for a lawful
taking of private property for public use need to be examined here: one is the necessity for
the taking; another is the legal authority to effect the taking. The element of necessity for the
taking has not been shown by respondent Comelec. It has not been suggested that the
members of PPI are unwilling to sell print space at their normal rates to Comelec for election
purposes. Indeed, the unwillingness or reluctance of Comelec to buy print space lies at the
heart of the problem. 3Similarly, it has not been suggested, let alone demonstrated,

that Comelec has been granted the power of eminent domain either by the
Constitution or by the legislative authority. A reasonable relationship between that
power and the enforcement and administration of election laws by Comelec must be
shown; it is not casually to be assumed.
That the taking is designed to subserve "public use" is not contested by petitioner PPI. We
note only that, under Section 3 of Resolution No. 2772, the free "Comelec space" sought by
the respondent Commission would be used not only for informing the public about the
identities, qualifications and programs of government of candidates for elective office but also
for "dissemination of vital election information" (including, presumably, circulars, regulations,
notices, directives, etc. issued by Comelec). It seems to the Court a matter of judicial notice
that government offices and agencies (including the Supreme Court) simply purchase print
space, in the ordinary course of events, when their rules and regulations, circulars, notices
and so forth need officially to be brought to the attention of the general public.
The taking of private property for public use is, of course, authorized by the Constitution, but
not without payment of "just compensation" (Article III, Section 9). And apparently the
necessity of paying compensation for "Comelec space" is precisely what is sought to be
avoided by respondent Commission, whether Section 2 of Resolution No. 2772 is read as
petitioner PPI reads it, as an assertion of authority to require newspaper publishers to
"donate" free print space for Comelec purposes, or as an exhortation, or perhaps an appeal,
to publishers to donate free print space, as Section 1 of Resolution No. 2772-A attempts to
suggest. There is nothing at all to prevent newspaper and magazine publishers from
voluntarily giving free print space to Comelec for the purposes contemplated in Resolution
No. 2772. Section 2 of Resolution No. 2772 does not, however, provide a constitutional basis
for compelling publishers, against their will, in the kind of factual context here present, to
provide free print space for Comelec purposes. Section 2 does not constitute a valid exercise
of the power of eminent domain.
We would note that the ruling here laid down by the Court is entirely in line with the theory of
democratic representative government. The economic costs of informing the general public
about the qualifications and programs of those seeking elective office are most appropriately
distributed as widely as possible throughout our society by the utilization of public funds,
especially funds raised by taxation, rather than cast solely on one small sector of society, i.e.,

print media enterprises. The benefits which flow from a heightened level of information on
and the awareness of the electoral process are commonly thought to be community-wide; the
burdens should be allocated on the same basis.
As earlier noted, the Solicitor General also contended that Section 2 of Resolution No. 2772,
even if read as compelling publishers to "donate" "Comelec space, " may be sustained as a
valid exercise of the police power of the state. This argument was, however, made too
casually to require prolonged consideration on our part. Firstly, there was no effort (and
apparently no inclination on the part of Comelec) to show that the police power essentially
a power of legislation has been constitutionally delegated to respondent
Commission. 4 Secondly, while private property may indeed be validly taken in the

legitimate exercise of the police power of the state, there was no attempt to show
compliance in the instant case with the requisites of a lawful taking under the police
power. 5
Section 2 of Resolution No. 2772 is a blunt and heavy instrument that purports, without a
showing of existence of a national emergency or other imperious public necessity,
indiscriminately and without regard to the individual business condition of particular
newspapers or magazines located in differing parts of the country, to take private property of
newspaper or magazine publishers. No attempt was made to demonstrate that a real and
palpable or urgent necessity for the taking of print space confronted the Comelec and that
Section 2 of Resolution No. 2772 was itself the only reasonable and calibrated response to
such necessity available to the Comelec. Section 2 does not constitute a valid exercise of the
police power of the State.
We turn to Section 8 of Resolution No. 2772, which needs to be quoted in full again:
Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers.
No newspaper or publication shall allow to be printed or published in the
news, opinion, features, or other sections of the newspaper or publication
accounts or comments which manifestly favor or oppose any candidate or
political party by unduly or repeatedly referring to or including therein said
candidate or political party. However, unless the facts and circumstances
clearly indicate otherwise, the Commission will respect the determination
by the publisher and/or editors of the newspapers or publications that the
accounts or views published are significant, newsworthy and of public
interest.
It is not easy to understand why Section 8 was included at all in Resolution No. 2772. In any
case, Section 8 should be viewed in the context of our decision in National Press Club v.
Commission on Elections. 6 There the Court sustained the constitutionality of Section

11 (b) of R.A. No. 6646, known as the Electoral Reforms Law of 1987, which
prohibits the sale or donation of print space and airtime for campaign or other
political purposes, except to the Comelec. In doing so, the Court carefully

distinguished (a) paid political advertisements which are reached by the prohibition
of Section 11 (b), from (b) the reporting of news, commentaries and expressions of
belief or opinion by reporters, broadcasters, editors, commentators or columnists
which fall outside the scope of Section 11 (b) and which are protected by the
constitutional guarantees of freedom of speech and of the press:
Secondly, and more importantly, Section 11 (b) is limited in its scope of
application. Analysis of Section 11 (b) shows that it purports to apply only
to the purchase and sale, including purchase and sale disguised as a
donation, of print space and air time for campaign or other political
purposes. Section
11 (b)
does
not
purport in
any
way to
restrict the reporting by newspapers or radio or television stations of news
or news-worthy events relating to candidates, their qualifications, political
parties and programs of government. Moreover, Section 11 (b) does not
reach commentaries and expressions of belief or opinion by reporters or
broadcaster or editors or commentators or columnists in respect of
candidates, their qualifications, and programs and so forth, so long at least
as such comments, opinions and beliefs are not in fact advertisements for
particular candidates covertly paid for. In sum, Section 11 (b) is not to be
read as reaching any report or commentary or other coverage that, in
responsible media, is not paid for by candidates for political office. We read
Section 11 (b) as designed to cover only paid political advertisements of
particular candidates.
The above limitation in scope of application of Section 11 (b) that it does
not restrict either the reporting of or the expression of belief or opinion or
comment upon the qualifications and programs and activities of any and all
candidates for office constitutes the critical distinction which must be
made between the instant case and that of Sanidad v. Commission on
Elections. . . . 7 (Citations omitted; emphasis supplied)
Section 8 of Resolution No. 2772 appears to represent the effort of the Comelec to establish
a guideline for implementation of the above-quoted distinction and doctrine in National Press
Club an effort not blessed with evident success. Section 2 of Resolution No. 2772-A while
possibly helpful, does not add substantially to the utility of Section 8 of Resolution No. 2772.
The distinction between paid political advertisements on the one hand and news reports,
commentaries and expressions of belief or opinion by reporters, broadcasters, editors, etc. on
the other hand, can realistically be given operative meaning only in actual cases or
controversies, on a case-to-case basis, in terms of very specific sets of facts.
At all events, the Court is bound to note that PPI has failed to allege any specific affirmative
action on the part of Comelec designed to enforce or implement Section 8. PPI has not
claimed that it or any of its members has sustained actual or imminent injury by reason of
Comelec action under Section 8. Put a little differently, the Court considers that the precise
constitutional issue here sought to be raised whether or not Section 8 of Resolution No.

2772 constitutes a permissible exercise of the Comelec's power under Article IX, Section 4 of
the Constitution to
supervise or regulate the enjoyment or utilization of all franchise or permits
for the operation of media of communication or information [for the
purpose of ensuring] equal opportunity, time and space, and the right of
reply, including reasonable, equal rates therefore, for public information
campaigns and forums among candidates in connection with the objective
of holding free, orderly honest, peaceful and credible elections
is not ripe for judicial review for lack of an actual case or controversy involving, as the very lis
mota thereof, the constitutionality of Section 8.
Summarizing our conclusions:
1. Section 2 of Resolution No. 2772, in its present form and as interpreted by Comelec in its
22 March 1995 letter directives, purports to require print media enterprises to "donate" free
print space to Comelec. As such, Section 2 suffers from a fatal constitutional vice and must
be set aside and nullified.
2. To the extent it pertains to Section 8 of Resolution No. 2772, the Petition for Certiorari and
Prohibition must be dismissed for lack of an actual, justiciable case or controversy.
WHEREFORE, for all the foregoing, the Petition for Certiorari and Prohibition is GRANTED in
part and Section 2 of Resolution No. 2772 in its present form and the related letter-directives
dated 22 March 1995 are hereby SET ASIDE as null and void, and the Temporary Restraining
Order is hereby MADE PERMANENT. The Petition is DISMISSED in part, to the extent it
relates to Section 8 of Resolution No. 2772. No pronouncement as to costs.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza and Francisco, JJ., concur.
Quiason, J., is on leave.

[G.R. No. 132922. April 21, 1998]

TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES, INC.
and GMA NETWORK, INC., petitioners, vs. THE COMMISSION ON
ELECTIONS, respondent.
DECISION
MENDOZA, J.:
[1]

In Osmea v. COMELEC, G.R. No. 132231, decided March 31, 1998, we upheld the
validity of 11(b) of R.A. No. 6646 which prohibits the sale or donation of print space or air time
for political ads, except to the Commission on Elections under 90, of B.P. No. 881, the
Omnibus Election Code, with respect to print media, and 92, with respect to broadcast
media. In the present case, we consider the validity of 92 of B.P. Blg. No. 881 against claims
that the requirement that radio and television time be given free takes property without due
process of law; that it violates the eminent domain clause of the Constitution which provides
for the payment of just compensation; that it denies broadcast media the equal protection of
the laws; and that, in any event, it violates the terms of the franchise of petitioner GMA
Network, Inc.
Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an
organization of lawyers of radio and television broadcasting companies. They are suing as
citizens, taxpayers, and registered voters. The other petitioner, GMA Network, Inc., operates
radio and television broadcasting stations throughout the Philippines under a franchise
granted by Congress.
Petitioners challenge the validity of 92 on the ground (1) that it takes property without
due process of law and without just compensation; (2) that it denies radio and television
broadcast companies the equal protection of the laws; and (3) that it is in excess of the power
given to the COMELEC to supervise or regulate the operation of media of communication or
information during the period of election.
The Question of Standing
At the threshold of this suit is the question of standing of petitioner Telecommunications
and Broadcast Attorneys of the Philippines, Inc. (TELEBAP). As already noted, its members
assert an interest as lawyers of radio and television broadcasting companies and as citizens,
taxpayers, and registered voters.
In those cases[2] in which citizens were authorized to sue, this Court upheld their
standing in view of the transcendental importance of the constitutional question raised which
justified the granting of relief. In contrast, in the case at bar, as will presently be shown,

petitioners substantive claim is without merit. To the extent, therefore, that a partys standing
is determined by the substantive merit of his case or a preliminary estimate thereof, petitioner
TELEBAP must be held to be without standing. Indeed, a citizen will be allowed to raise a
constitutional question only when he can show that he has personally suffered some actual or
threatened injury as a result of the allegedly illegal conduct of the government; the injury is
fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable
action.[3] Members of petitioner have not shown that they have suffered harm as a result of
the operation of 92 of B.P. Blg. 881.
Nor do members of petitioner TELEBAP have an interest as registered voters since this
case does not concern their right of suffrage. Their interest in 92 of B.P. Blg. 881 should be
precisely in upholding its validity.
Much less do they have an interest as taxpayers since this case does not involve the
exercise by Congress of its taxing or spending power.[4] A party suing as a taxpayer must
specifically show that he has a sufficient interest in preventing the illegal expenditure of
money raised by taxation and that he will sustain a direct injury as a result of the enforcement
of the questioned statute.
Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of
radio and television broadcasting companies. Standing jus tertii will be recognized only if it
can be shown that the party suing has some substantial relation to the third party, or that the
third party cannot assert his constitutional right, or that the right of the third party will be
diluted unless the party in court is allowed to espouse the third partys constitutional
claim. None of these circumstances is here present. The mere fact that TELEBAP is
composed of lawyers in the broadcast industry does not entitle them to bring this suit in their
name as representatives of the affected companies.
Nevertheless, we have decided to take this case since the other petitioner, GMA
Network, Inc., appears to have the requisite standing to bring this constitutional
challenge.Petitioner operates radio and television broadcast stations in the Philippines
affected by the enforcement of 92 of B.P. Blg. 881 requiring radio and television broadcast
companies to provide free air time to the COMELEC for the use of candidates for campaign
and other political purposes.
Petitioner claims that it suffered losses running to several million pesos in providing
COMELEC Time in connection with the 1992 presidential election and the 1995 senatorial
election and that it stands to suffer even more should it be required to do so again this
year. Petitioners allegation that it will suffer losses again because it is required to provide free
air time is sufficient to give it standing to question the validity of 92.[5]
Airing of COMELEC Time, a
Reasonable Condition for

Grant of Petitioners

COMELEC to procure print space which, as we have held, should be paid for, 92 states that
air time shall be procured by the COMELEC free of charge.

Franchise
As pointed out in our decision in Osmea v. COMELEC, 11(b) of R.A. No. 6646 and 90
and 92 of B.P. Blg. 881 are part and parcel of a regulatory scheme designed to equalize the
opportunity of candidates in an election in regard to the use of mass media for political
campaigns. These statutory provisions state in relevant parts:
R.A. No. 6646
SEC. 11. Prohibited Forms of Election Propaganda. - In addition to the forms of election
propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
....
(b) for any newspapers, radio broadcasting or television station, or other mass media, or any
person making use of the mass media to sell or to give free of charge print space or air time
for campaign or other political purposes except to the Commission as provided under Section
90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator,
announcer or personality who is a candidate for any elective public office shall take a leave of
absence from his work as such during the campaign period.
B.P. Blg. 881, (Omnibus Election Code)
SEC. 90. Comelec space. - The Commission shall procure space in at least one newspaper
of general circulation in every province or city: Provided, however, That in the absence of said
newspaper, publication shall be done in any other magazine or periodical in said province or
city, which shall be known as Comelec Space wherein candidates can announce their
candidacy. Said space shall be allocated, free of charge, equally and impartially by the
Commission among all candidates within the area in which the newspaper is circulated.(Sec.
45, 1978 EC).
SEC. 92. Comelec time. - The Commission shall procure radio and television time to be
known as Comelec Time which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television stations. For this purpose,
the franchise of all radio broadcasting and television stations are hereby amended so as to
provide radio or television time, free of charge, during the period of the campaign. (Sec. 46,
1978 EC)
Thus, the law prohibits mass media from selling or donating print space and air time to
the candidates and requires the COMELEC instead to procure print space and air time for
allocation to the candidates. It will be noted that while 90 of B.P. Blg. 881 requires the

Petitioners contend that 92 of BP Blg. 881 violates the due process clause[6] and the
eminent domain provision[7] of the Constitution by taking air time from radio and television
broadcasting stations without payment of just compensation. Petitioners claim that the
primary source of revenue of the radio and television stations is the sale of air time to
advertisers and that to require these stations to provide free air time is to authorize a taking
which is not a de minimis temporary limitation or restraint upon the use of private
property. According to petitioners, in 1992, the GMA Network, Inc. lost P22,498,560.00 in
providing free air time of one (1) hour every morning from Mondays to Fridays and one (1)
hour on Tuesdays and Thursdays from 7:00 to 8:00 p.m. (prime time) and, in this years
elections, it stands to lose P58,980,850.00 in view of COMELECs requirement that radio and
television stations provide at least 30 minutes of prime time daily for the COMELEC Time. [8]
Petitioners argument is without merit. All broadcasting, whether by radio or by television
stations, is licensed by the government. Airwave frequencies have to be allocated as there
are more individuals who want to broadcast than there are frequencies to assign. [9] A
franchise is thus a privilege subject, among other things, to amendment by Congress in
accordance with the constitutional provision that any such franchise or right granted . . . shall
be subject to amendment, alteration or repeal by the Congress when the common good so
requires.[10]
The idea that broadcast stations may be required to provide COMELEC Time free of
charge is not new. It goes back to the Election Code of 1971 (R.A. No. 6388), which provided:
SEC. 49. Regulation of election propaganda through mass media. - (a) The franchises of all
radio broadcasting and television stations are hereby amended so as to require each such
station to furnish free of charge, upon request of the Commission [on Elections], during the
period of sixty days before the election not more than fifteen minutes of prime time once a
week which shall be known as Comelec Time and which shall be used exclusively by the
Commission to disseminate vital election information. Said Comelec Time shall be considered
as part of the public service time said stations are required to furnish the Government for the
dissemination of public information and education under their respective franchises or
permits.
This provision was carried over with slight modification by the 1978 Election Code (P.D.
No. 1296), which provided:
SEC. 46. COMELEC Time. - The Commission [on Elections] shall procure radio and
television time to be known as COMELEC Time which shall be allocated equally and
impartially among the candidates within the area of coverage of said radio and television
stations. For this purpose, the franchises of all radio broadcasting and television stations are
hereby amended so as to require such stations to furnish the Commission radio or television

time, free of charge, during the period of the campaign, at least once but not oftener than
every other day.
Substantially the same provision is now embodied in 92 of B.P. Blg. 881.
Indeed, provisions for COMELEC Time have been made by amendment of the
franchises of radio and television broadcast stations and, until the present case was brought,
such provisions had not been thought of as taking property without just compensation. Art.
XII, 11 of the Constitution authorizes the amendment of franchises for the common
good.What better measure can be conceived for the common good than one for free air time
for the benefit not only of candidates but even more of the public, particularly the voters, so
that they will be fully informed of the issues in an election? [I]t is the right of the viewers and
listeners, not the right of the broadcasters, which is paramount.[11]
Nor indeed can there be any constitutional objection to the requirement that broadcast
stations give free air time. Even in the United States, there are responsible scholars who
believe that government controls on broadcast media can constitutionally be instituted to
ensure diversity of views and attention to public affairs to further the system of free
expression. For this purpose, broadcast stations may be required to give free air time to
candidates in an election.[12] Thus, Professor Cass R. Sunstein of the University of Chicago
Law School, in urging reforms in regulations affecting the broadcast industry, writes:
Elections. We could do a lot to improve coverage of electoral campaigns. Most important,
government should ensure free media time for candidates. Almost all European nations make
such provision; the United States does not. Perhaps government should pay for such time on
its own. Perhaps broadcasters should have to offer it as a condition for receiving a
license. Perhaps a commitment to provide free time would count in favor of the grant of a
license in the first instance. Steps of this sort would simultaneously promote attention to
public affairs and greater diversity of view. They would also help overcome the distorting
effects of soundbites and the corrosive financial pressures faced by candidates in seeking
time on the media.[13]
In truth, radio and television broadcasting companies, which are given franchises, do
not own the airwaves and frequencies through which they transmit broadcast signals and
images. They are merely given the temporary privilege of using them. Since a franchise is a
mere privilege, the exercise of the privilege may reasonably be burdened with the
performance by the grantee of some form of public service. Thus, in De Villata v. Stanley,[14] a
regulation requiring interisland vessels licensed to engage in the interisland trade to carry
mail and, for this purpose, to give advance notice to postal authorities of date and hour of
sailings of vessels and of changes of sailing hours to enable them to tender mail for
transportation at the last practicable hour prior to the vessels departure, was held to be a
reasonable condition for the state grant of license. Although the question of compensation for
the carriage of mail was not in issue, the Court strongly implied that such service could be
without compensation, as in fact under Spanish sovereignty the mail was carried free.[15]

In Philippine Long Distance Telephone Company v. NTC,[16] the Court ordered the PLDT
to allow the interconnection of its domestic telephone system with the international gateway
facility of Eastern Telecom. The Court cited (1) the provisions of the legislative franchise
allowing such interconnection; (2) the absence of any physical, technical, or economic basis
for restricting the linking up of two separate telephone systems; and (3) the possibility of
increase in the volume of international traffic and more efficient service, at more moderate
cost, as a result of interconnection.
Similarly, in the earlier case of PLDT v. NTC,[17] it was held:
Such regulation of the use and ownership of telecommunications systems is in the exercise
of the plenary police power of the State for the promotion of the general welfare. The 1987
Constitution recognizes the existence of that power when it provides:
Sec. 6. The use of property bears a social function, and all economic agents shall contribute
to the common good. Individuals and private groups, including corporations, cooperatives,
and similar collective organizations, shall have the right to own, establish, and operate
economic enterprises, subject to the duty of the State to promote distributive justice and to
intervene when the common good so demands (Article XII).
The interconnection which has been required of PLDT is a form of intervention with property
rights dictated by the objective of government to promote the rapid expansion of
telecommunications services in all areas of the Philippines, . . . to maximize the use of
telecommunications facilities available, . . . in recognition of the vital role of communications
in nation building . . . and to ensure that all users of the public telecommunications service
have access to all other users of the service wherever they may be within the Philippines at
an acceptable standard of service and at reasonable cost (DOTC Circular No. 90248). Undoubtedly, the encompassing objective is the common good. The NTC, as the
regulatory agency of the State, merely exercised its delegated authority to regulate the use of
telecommunications networks when it decreed interconnection.
In the granting of the privilege to operate broadcast stations and thereafter supervising
radio and television stations, the state spends considerable public funds in licensing and
supervising such stations.[18] It would be strange if it cannot even require the licensees to
render public service by giving free air time.
Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the
production of television programs involves large expenditure and requires the use of
equipment for which huge investments have to be made. The dissent cites the claim of GMA
Network that the grant of free air time to the COMELEC for the duration of the 1998
campaign period would cost the company P52,380,000, representing revenue it would
otherwise earn if the air time were sold to advertisers, and the amount of P6,600,850,
representing the cost of producing a program for the COMELEC Time, or the total amount of
P58,980,850.

The claim that petitioner would be losing P52,380,000 in unrealized revenue from
advertising is based on the assumption that air time is finished product which, it is said,
become the property of the company, like oil produced from refining or similar natural
resources after undergoing a process for their production. But air time is not owned by
broadcast companies. As held in Red Lion Broadcasting Co. v. F.C.C.,[19] which upheld the
right of a party personally attacked to reply, licenses to broadcast do not confer ownership of
designated frequencies, but only the temporary privilege of using them. Consequently, a
license permits broadcasting, but the licensee has no constitutional right to be the one who
holds the license or to monopolize a radio frequency to the exclusion of his fellow
citizens. There is nothing in the First Amendment which prevents the Government from
requiring a licensee to share his frequency with others and to conduct himself as a proxy or
fiduciary with obligations to present those views and voices which are representative of his
community and which would otherwise, by necessity, be barred from the airwaves. [20] As radio
and television broadcast stations do not own the airwaves, no private property is taken by the
requirement that they provide air time to the COMELEC.

police power.[22] Justice Holmes spoke of the petty larceny of the police power. Now we are
being told of the grand larceny [by means of the police power] of precious air time.

Justice Panganibans dissent quotes from Tolentino on the Civil Code which says that
the air lanes themselves are not property because they cannot be appropriated for the benefit
of any individual. (p.5) That means neither the State nor the stations own the air lanes. Yet
the dissent also says that The franchise holders can recover their huge investments only by
selling air time to advertisers. (p. 13) If air lanes cannot be appropriated, how can they be
used to produce air time which the franchise holders can sell to recover their
investment? There is a contradiction here.

SEC. 5. Right of Government. - A special right is hereby reserved to the President of the
Philippines, in times of rebellion, public peril, calamity, emergency, disaster or disturbance of
peace and order, to temporarily take over and operate the stations of the grantee, to
temporarily suspend the operation of any station in the interest of public safety, security and
public welfare, or to authorize the temporary use and operation thereof by any agency of the
Government, upon due compensation to the grantee, for the use of said stations during the
period when they shall be so operated.

As to the additional amount of P6,600,850, it is claimed that this is the cost of producing
a program and it is for such items as sets and props, video tapes, miscellaneous (other
rental, supplies, transportation, etc.), and technical facilities (technical crew such as director
and cameraman as well as on air plugs). There is no basis for this claim. Expenses for these
items will be for the account of the candidates. COMELEC Resolution No. 2983, 6(d)
specifically provides in this connection:

The basic flaw in petitioners argument is that it assumes that the provision for
COMELEC Time constitutes the use and operation of the stations of the GMA Network, Inc.
This is not so. Under 92 of B.P. Blg. 881, the COMELEC does not take over the operation of
radio and television stations but only the allocation of air time to the candidates for the
purpose of ensuring, among other things, equal opportunity, time, and the right to reply as
mandated by the Constitution.[23]

(d) Additional services such as tape-recording or video-taping of programs, the preparation of

visual aids, terms and condition thereof, and the consideration to be paid therefor may be
arranged by the candidates with the radio/television station concerned. However, no
radio/television station shall make any discrimination among candidates relative to charges,
terms, practices or facilities for in connection with the services rendered.

Indeed, it is wrong to claim an amendment of petitioners franchise for the reason that
B.P. Blg. 881, which is said to have amended R.A. No. 7252, actually antedated it. [24] The
provision of 92 of B.P. Blg. 881 must be deemed instead to be incorporated in R.A. No.
7252. And, indeed, 4 of the latter statute does.

It is unfortunate that in the effort to show that there is taking of private property worth
millions of pesos, the unsubstantiated charge is made that by its decision the Court permits
the grand larceny of precious time, and allows itself to become the peoples unwitting
oppressor. The charge is really unfortunate. In Jackman v. Rosenbaum Co.,[21] Justice
Holmes was so incensed by the resistance of property owners to the erection of party walls
that he was led to say in his original draft, a statute, which embodies the communitys
understanding of the reciprocal rights and duties of neighboring landowners, does not need to
invoke the petty larceny of the police power in its justification. Holmess brethren corrected his
taste, and Holmes had to amend the passage so that in the end it spoke only of invoking the

Giving Free Air Time a Duty

Assumed by Petitioner
Petitioners claim that 92 is an invalid amendment of R.A. No. 7252 which granted GMA
Network, Inc. a franchise for the operation of radio and television broadcasting stations.They
argue that although 5 of R.A. No. 7252 gives the government the power to temporarily use
and operate the stations of petitioner GMA Network or to authorize such use and operation,
the exercise of this right must be compensated.
The cited provision of R.A. No. 7252 states:

For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to render
adequate public service time implements 92 of B.P. Blg. 881. Undoubtedly, its purpose is to
enable the government to communicate with the people on matters of public interest. Thus,
R.A. No. 7252 provides:
SEC. 4. Responsibility to the Public. - The grantee shall provide adequate public service time
to enable the Government, through the said broadcasting stations, to reach the population on
important public issues; provide at all times sound and balanced programming; promote
public participation such as in community programming; assist in the functions of public
information and education; conform to the ethics of honest enterprise; and not use its station

for the broadcasting of obscene and indecent language, speech, act or scene, or for the
dissemination of deliberately false information or willful misrepresentation, or to the detriment
of the public interest, or to incite, encourage, or assist in subversive or treasonable
acts. (Emphasis added)

stations.[25] Petitioners do not claim that COMELEC Resolution No. 2983-A arbitrarily
sequesters radio and television time. What they claim is that because of the breadth of the
statutory language, the provision in question is susceptible of unbridled, arbitrary and
oppressive exercise.[26]

It is noteworthy that 49 of R.A. No. 6388, from which 92 of B.P. Blg. 881 was taken,
expressly provided that the COMELEC Time should be considered as part of the public
service time said stations are required to furnish the Government for the dissemination of
public information and education under their respective franchises or permits. There is no
reason to suppose that 92 of B.P. Blg. 881 considers the COMELEC Time therein provided to
be otherwise than as a public service which petitioner is required to render under 4 of its
charter (R.A. No. 7252). In sum, B.P. Blg. 881, 92 is not an invalid amendment of petitioners
franchise but the enforcement of a duty voluntarily assumed by petitioner in accepting a
public grant of privilege.

The contention has no basis. For one, the COMELEC is required to procure free air time
for candidates within the area of coverage of a particular radio or television broadcaster so
that it cannot, for example, procure such time for candidates outside that area. At what time
of the day and how much time the COMELEC may procure will have to be determined by it in
relation to the overall objective of informing the public about the candidates, their
qualifications and their programs of government. As stated in Osmea v. COMELEC, the
COMELEC Time provided for in 92, as well as the COMELEC Space provided for in 90, is in
lieu of paid ads which candidates are prohibited to have under 11(b) of R.A. No.
6646. Accordingly, this objective must be kept in mind in determining the details of the
COMELEC Time as well as those of the COMELEC Space.

Thus far, we have confined the discussion to the provision of 92 of B.P. Blg. 881 for free
air time without taking into account COMELEC Resolution No. 2983-A, 2 of which states:
SEC. 2. Grant of Comelec Time. - Every radio broadcasting and television station operating
under franchise shall grant the Commission, upon payment of just compensation, at least
thirty (30) minutes of prime time daily, to be known as Comelec Time, effective February 10,
1998 for candidates for President, Vice-President and Senators, and effective March 27,
1998, for candidates for local elective offices, until May 9, 1998. (Emphasis added)

There would indeed be objection to the grant of power to the COMELEC if 92 were so
detailed as to leave no room for accommodation of the demands of radio and television
programming. For were that the case, there could be an intrusion into the editorial
prerogatives of radio and television stations.
Differential Treatment of
Broadcast Media Justified

This is because the amendment providing for the payment of just compensation is invalid,
being in contravention of 92 of B.P. Blg. 881 that radio and television time given during the
period of the campaign shall be free of charge. Indeed, Resolution No. 2983 originally
provided that the time allocated shall be free of charge, just as 92 requires such time to be
given free of charge. The amendment appears to be a reaction to petitioners claim in this
case that the original provision was unconstitutional because it allegedly authorized the
taking of property without just compensation.
The Solicitor General, relying on the amendment, claims that there should be no more
dispute because the payment of compensation is now provided for. It is basic, however, that
an administrative agency cannot, in the exercise of lawmaking, amend a statute of
Congress. Since 2 of Resolution No. 2983-A is invalid, it cannot be invoked by the parties.

Petitioners complain that B.P. Blg. 881, 92 singles out radio and television stations to
provide free air time. They contend that newspapers and magazines are not similarly required
as, in fact, in Philippine Press Institute v. COMELEC[27] we upheld their right to the payment of
just compensation for the print space they may provide under 90.
The argument will not bear analysis. It rests on the fallacy that broadcast media are
entitled to the same treatment under the free speech guarantee of the Constitution as the
print media. There are important differences in the characteristics of the two media, however,
which justify their differential treatment for free speech purposes. Because of the physical
limitations of the broadcast spectrum, the government must, of necessity, allocate broadcast
frequencies to those wishing to use them. There is no similar justification for government
allocation and regulation of the print media.[28]

Law Allows Flextime for Programming

by Stations, Not Confiscation of
Air Time by COMELEC
It is claimed that there is no standard in the law to guide the COMELEC in procuring
free air time and that theoretically the COMELEC can demand all of the air time of such

In the allocation of limited resources, relevant conditions may validly be imposed on the
grantees or licensees. The reason for this is that, as already noted, the government spends
public funds for the allocation and regulation of the broadcast industry, which it does not do in
the case of the print media. To require the radio and television broadcast industry to provide
free air time for the COMELEC Time is a fair exchange for what the industry gets.

From another point of view, this Court has also held that because of the unique and
pervasive influence of the broadcast media, [n]ecessarily . . . the freedom of television and
radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper
and print media.[29]
The broadcast media have also established a uniquely pervasive presence in the lives of all
Filipinos. Newspapers and current books are found only in metropolitan areas and in the
poblaciones of municipalities accessible to fast and regular transportation. Even here, there
are low income masses who find the cost of books, newspapers, and magazines beyond their
humble means. Basic needs like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television set is also
becoming universal. Their message may be simultaneously received by a national or regional
audience of listeners including the indifferent or unwilling who happen to be within reach of a
blaring radio or television set. The materials broadcast over the airwaves reach every person
of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and
mental capabilities, persons whose reactions to inflammatory or offensive speech would be
difficult to monitor or predict. The impact of the vibrant speech is forceful and
immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to
cogitate, analyze, and reject the utterance.[30]
Petitioners assertion therefore that 92 of B.P. Blg. 881 denies them the equal protection
of the law has no basis. In addition, their plea that 92 (free air time) and 11(b) of R.A. No.
6646 (ban on paid political ads) should be invalidated would pave the way for a return to the
old regime where moneyed candidates could monopolize media advertising to the
disadvantage of candidates with less resources. That is what Congress tried to reform in
1987 with the enactment of R.A. No. 6646. We are not free to set aside the judgment of
Congress, especially in light of the recent failure of interested parties to have the law
repealed or at least modified.
Requirement of COMELEC Time, a
Reasonable Exercise of the
States Power to Regulate
Use of Franchises
Finally, it is argued that the power to supervise or regulate given to the COMELEC
under Art. IX-C, 4 of the Constitution does not include the power to prohibit. In the first place,
what the COMELEC is authorized to supervise or regulate by Art. IX-C, 4 of the Constitution,
[31]
among other things, is the use by media of information of their franchises or permits, while
what Congress (not the COMELEC) prohibits is the sale or donation of print space or air time
for political ads. In other words, the object of supervision or regulation is different from the
object of the prohibition. It is another fallacy for petitioners to contend that the power to

regulate does not include the power to prohibit. This may have force if the object of the power
were the same.
In the second place, the prohibition in 11(b) of R.A. No. 6646 is only half of the
regulatory provision in the statute. The other half is the mandate to the COMELEC to procure
print space and air time for allocation to candidates. As we said in Osmea v. COMELEC:
The term political ad ban, when used to describe 11(b) of R.A. No. 6646, is misleading, for
even as 11(b) prohibits the sale or donation of print space and air time to political candidates,
it mandates the COMELEC to procure and itself allocate to the candidates space and time in
the media. There is no suppression of political ads but only a regulation of the time and
manner of advertising.
....
. . . What is involved here is simply regulation of this nature. Instead of leaving candidates to
advertise freely in the mass media, the law provides for allocation, by the COMELEC of print
space and air time to give all candidates equal time and space for the purpose of ensuring
free, orderly, honest, peaceful, and credible elections.
With the prohibition on media advertising by candidates themselves, the COMELEC
Time and COMELEC Space are about the only means through which candidates can
advertise their qualifications and programs of government. More than merely depriving
candidates of time for their ads, the failure of broadcast stations to provide air time unless
paid by the government would clearly deprive the people of their right to know. Art. III, 7 of the
Constitution provides that the right of the people to information on matters of public concern
shall be recognized, while Art. XII, 6 states that the use of property bears a social function
[and] the right to own, establish, and operate economic enterprises [is] subject to the duty of
the State to promote distributive justice and to intervene when the common good so
demands.
To affirm the validity of 92 of B.P. Blg. 881 is to hold public broadcasters to their
obligation to see to it that the variety and vigor of public debate on issues in an election is
maintained. For while broadcast media are not mere common carriers but entities with free
speech rights, they are also public trustees charged with the duty of ensuring that the people
have access to the diversity of views on political issues. This right of the people is paramount
to the autonomy of broadcast media. To affirm the validity of 92, therefore, is likewise to
uphold the peoples right to information on matters of public concern. The use of property
bears a social function and is subject to the states duty to intervene for the common good.
Broadcast media can find their just and highest reward in the fact that whatever altruistic
service they may render in connection with the holding of elections is for that common good.
For the foregoing reasons, the petition is dismissed.
SO ORDERED.

G.R. No. L-19201

June 16, 1965

REV. FR. CASIMIRO LLADOC, petitioner,

vs.
The COMMISSIONER OF INTERNAL REVENUE and The COURT of TAX
APPEALS, respondents.
Hilado and Hilado for petitioner.
Office of the Solicitor General for respondents.
PAREDES, J.:
Sometime in 1957, the M.B. Estate, Inc., of Bacolod City, donated P10,000.00 in cash to Rev.
Fr. Crispin Ruiz, then parish priest of Victorias, Negros Occidental, and predecessor of herein
petitioner, for the construction of a new Catholic Church in the locality. The total amount was
actually spent for the purpose intended.
On March 3, 1958, the donor M.B. Estate, Inc., filed the donor's gift tax return. Under date of
April 29, 1960, the respondent Commissioner of Internal Revenue issued an assessment for
donee's gift tax against the Catholic Parish of Victorias, Negros Occidental, of which
petitioner was the priest. The tax amounted to P1,370.00 including surcharges, interests of
1% monthly from May 15, 1958 to June 15, 1960, and the compromise for the late filing of the
return.
Petitioner lodged a protest to the assessment and requested the withdrawal thereof. The
protest and the motion for reconsideration presented to the Commissioner of Internal
Revenue were denied. The petitioner appealed to the Court of Tax Appeals on November 2,
1960. In the petition for review, the Rev. Fr. Casimiro Lladoc claimed, among others, that at
the time of the donation, he was not the parish priest in Victorias; that there is no legal entity
or juridical person known as the "Catholic Parish Priest of Victorias," and, therefore, he
should not be liable for the donee's gift tax. It was also asserted that the assessment of the
gift tax, even against the Roman Catholic Church, would not be valid, for such would be a
clear violation of the provisions of the Constitution.
After hearing, the CTA rendered judgment, the pertinent portions of which are quoted below:
... . Parish priests of the Roman Catholic Church under canon laws are similarly
situated as its Archbishops and Bishops with respect to the properties of the church
within their parish. They are the guardians, superintendents or administrators of
these properties, with the right of succession and may sue and be sued.
xxx

xxx

xxx

The petitioner impugns the, fairness of the assessment with the argument that he
should not be held liable for gift taxes on donation which he did not receive
personally since he was not yet the parish priest of Victorias in the year 1957 when
said donation was given. It is intimated that if someone has to pay at all, it should be
petitioner's predecessor, the Rev. Fr. Crispin Ruiz, who received the donation in
behalf of the Catholic parish of Victorias or the Roman Catholic Church. Following
petitioner's line of thinking, we should be equally unfair to hold that the assessment
now in question should have been addressed to, and collected from, the Rev. Fr.
Crispin Ruiz to be paid from income derived from his present parish where ever it
may be. It does not seem right to indirectly burden the present parishioners of Rev.
Fr. Ruiz for donee's gift tax on a donation to which they were not benefited.
xxx

xxx

xxx

We saw no legal basis then as we see none now, to include within the Constitutional
exemption, taxes which partake of the nature of an excise upon the use made of the
properties or upon the exercise of the privilege of receiving the properties. (Phipps
vs. Commissioner of Internal Revenue, 91 F [2d] 627; 1938, 302 U.S. 742.)
It is a cardinal rule in taxation that exemptions from payment thereof are highly
disfavored by law, and the party claiming exemption must justify his claim by a clear,
positive, or express grant of such privilege by law. (Collector vs. Manila Jockey Club,
G.R. No. L-8755, March 23, 1956; 53 O.G. 3762.)
The phrase "exempt from taxation" as employed in Section 22(3), Article VI of the
Constitution of the Philippines, should not be interpreted to mean exemption from all
kinds of taxes. Statutes exempting charitable and religious property from taxation
should be construed fairly though strictly and in such manner as to give effect to the
main intent of the lawmakers. (Roman Catholic Church vs. Hastrings 5 Phil. 701.)
xxx

xxx

xxx

WHEREFORE, in view of the foregoing considerations, the decision of the

respondent Commissioner of Internal Revenue appealed from, is hereby affirmed
except with regard to the imposition of the compromise penalty in the amount of
P20.00 (Collector of Internal Revenue v. U.S.T., G.R. No. L-11274, Nov. 28,
1958); ..., and the petitioner, the Rev. Fr. Casimiro Lladoc is hereby ordered to pay
to the respondent the amount of P900.00 as donee's gift tax, plus the surcharge of
five per centum (5%) as ad valorem penalty under Section 119 (c) of the Tax Code,
and one per centum (1%) monthly interest from May 15, 1958 to the date of actual
payment. The surcharge of 25% provided in Section 120 for failure to file a return
may not be imposed as the failure to file a return was not due to willful neglect.( ... )
No costs.

The above judgment is now before us on appeal, petitioner assigning two (2) errors allegedly
committed by the Tax Court, all of which converge on the singular issue of whether or not
petitioner should be liable for the assessed donee's gift tax on the P10,000.00 donated for the
construction of the Victorias Parish Church.
Section 22 (3), Art. VI of the Constitution of the Philippines, exempts from taxation
cemeteries, churches and
parsonages
or
convents,
appurtenant
thereto,
and
all lands, buildings, and improvements used exclusively for religious purposes. The
exemption is only from the payment of taxes assessed on such properties enumerated, as
property taxes, as contra distinguished from excise taxes. In the present case, what the
Collector assessed was a donee's gift tax; the assessment was not on the properties
themselves. It did not rest upon general ownership; it was an excise upon the use made of
the properties, upon the exercise of the privilege of receiving the properties (Phipps vs. Com.
of Int. Rec. 91 F 2d 627). Manifestly, gift tax is not within the exempting provisions of the
section just mentioned. A gift tax is not a property tax, but an excise tax imposed on the
transfer of property by way of gift inter vivos, the imposition of which on property used
exclusively for religious purposes, does not constitute an impairment of the Constitution. As
well observed by the learned respondent Court, the phrase "exempt from taxation," as
employed in the Constitution (supra) should not be interpreted to mean exemption from all
kinds of taxes. And there being no clear, positive or express grant of such privilege by law, in
favor of petitioner, the exemption herein must be denied.
The next issue which readily presents itself, in view of petitioner's thesis, and Our finding that
a tax liability exists, is, who should be called upon to pay the gift tax? Petitioner postulates
that he should not be liable, because at the time of the donation he was not the priest of
Victorias. We note the merit of the above claim, and in order to put things in their proper light,
this Court, in its Resolution of March 15, 1965, ordered the parties to show cause why the
Head of the Diocese to which the parish of Victorias pertains, should not be substituted in lieu
of petitioner Rev. Fr. Casimiro Lladoc it appearing that the Head of such Diocese is the real
party in interest. The Solicitor General, in representation of the Commissioner of Internal
Revenue, interposed no objection to such a substitution. Counsel for the petitioner did not
also offer objection thereto.
On April 30, 1965, in a resolution, We ordered the Head of the Diocese to present whatever
legal issues and/or defenses he might wish to raise, to which resolution counsel for petitioner,
who also appeared as counsel for the Head of the Diocese, the Roman Catholic Bishop of
Bacolod, manifested that it was submitting itself to the jurisdiction and orders of this Court
and that it was presenting, by reference, the brief of petitioner Rev. Fr. Casimiro Lladoc as its
own and for all purposes.
In view here of and considering that as heretofore stated, the assessment at bar had been
properly made and the imposition of the tax is not a violation of the constitutional provision
exempting churches, parsonages or convents, etc. (Art VI, sec. 22 [3], Constitution), the
Head of the Diocese, to which the parish Victorias Pertains, is liable for the payment thereof.

The decision appealed from should be, as it is hereby affirmed insofar as tax liability is
concerned; it is modified, in the sense that petitioner herein is not personally liable for the
said gift tax, and that the Head of the Diocese, herein substitute petitioner, should pay, as he
is presently ordered to pay, the said gift tax, without special, pronouncement as to costs.

COMMISSION ON ELECTIONS,
Petitioner,
-

versus -

CONRADO CRUZ, SANTIAGO P. GO, RENATO F.

BORBON, LEVVINO CHING, CARLOS C.
FLORENTINO, RUBEN G. BALLEGA, LOIDA ALCEDO,
MARIO M. CAJUCOM, EMMANUEL M. CALMA,
MANUEL A. RAYOS, WILMA L. CHUA, EUFEMIO S.
ALFONSO, JESUS M. LACANILAO, BONIFACIO N.
ALCAPA, JOSE H. SILVERIO, RODRIGO DEVELLES,
NIDA R. PAUNAN, MARIANO B. ESTUYE, JR., RAFAEL
C. AREVALO, ARTURO T. MANABAT, RICARDO O.
LIZARONDO, LETICIA C. MATURAN, RODRIGO A.
ALAYAN, LEONILO N. MIRANDA, DESEDERIO O.
MONREAL, FRANCISCO M. BAHIA, NESTOR R.
FORONDA, VICENTE B. QUE, JR., AURELIO A.
BILUAN, DANILO R. GATCHALIAN, LOURDES R. DEL
MUNDO, EMMA O. CALZADO, FELIMON DE LEON,
TANY V. CATACUTAN, AND CONCEPCION P. JAO,
Respondents.

G.R. No. 186616

Present:
PUNO, C.J.,
CARPIO,
CORONA,*
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,I**
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,***
BERSAMIN,
DEL CASTILLO,
ABAD, and
VILLARAMA, JR., JJ.

time shall not be considered as an interruption in the continuity of service

for the full term for which the elective official was elected.
The RTC granted the petition and declared the challenged proviso constitutionally infirm. The
present petition, filed by the Commission on Elections (COMELEC), seeks a review of the
RTC decision.[1]
THE ANTECEDENTS
Before

the

October

29,

2007

Synchronized Barangay and Sangguniang Kabataan (SK) Elections, some of the then
incumbent officials of several barangays of Caloocan City[2] filed with the RTC a petition for
declaratory relief to challenge the constitutionality of the above-highlighted proviso, based
on the following arguments:
I.
The term limit of Barangay officials should be applied
prospectively and not retroactively.
II.
Implementation of paragraph 2 Section 2 of RA No.
9164 would be a violation of the equal protection of the law.

Promulgated:
November 20, 2009
x --------------------------------------------------------------------------------------- x
DECISION
BRION, J.:
We resolve in this Decision the constitutional challenge, originally filed before the
Regional Trial Court of Caloocan City, Branch 128 (RTC), against the following highlighted
portion of Section 2 of Republic Act (RA) No. 9164 (entitled An Act Providing for
Synchronized Barangay and Sangguniang Kabataan Elections, amending RA No. 7160, as
amended, otherwise known as the Local Government Code of 1991):
Sec.
2. Term
of
Office.
The
term
of
office
of
all barangay and sangguniang kabataan officials after the effectivity of this
Act shall be three (3) years.
No barangay elective official shall serve for more than three (3)
consecutive terms in the same position: Provided, however, That the
term
of
office
shall
be
reckoned
from
the
1994 barangay elections. Voluntary renunciation of office for any length of

III.

The

RTC

Barangay officials have always been apolitical.

agreed

with

the

respondents

contention

that

the

challenged

proviso retroactively applied the three-term limit for barangay officials under the following
reasoning:
When the Local Government Code of 1991 took effect abrogating
all other laws inconsistent therewith, a different term was ordained. Here,
this Court agrees with the position of the petitioners that Section 43 of the
Code specifically exempted barangay elective officials from the coverage of
the three (3) consecutive term limit rule considering that the provision
applicable to these (sic) class of elective officials was significantly
separated from the provisions of paragraphs (a) and (b) thereof. Paragraph
(b) is indeed intended to qualify paragraph (a) of Section 43 as regards
to (sic) all local elective officials except barangay officials. Had the intention
of the framers of the Code is (sic) to include barangay elective officials,
then no excepting proviso should have been expressly made in paragraph
(a) thereof or, by implication, the contents of paragraph (c) should have
been stated ahead of the contents of paragraph (b).
xxxx

Clearly, the intent of the framers of the constitution (sic) is to exempt

the barangay officials from the three (3) term limits (sic) which are
otherwise applicable to other elected public officials from the Members of
the House of Representatives down to the members of
the sangguniang bayan/panlungsod. It is up for the Congress whether the
three (3) term limit should be applied by enacting a law for the purpose.
The amendment introduced by R.A. No. 8524 merely increased the term of
office of barangay elective officials from three (3) years to five (5)
years. Like the Local Government Code, it can be noted that no
consecutive term limit for the election of barangay elective officials was
fixed therein.
The advent of R.A. 9164 marked the revival of the consecutive
term limit for the election of barangay elective officials after the Local
Government Code took effect. Under the assailed provision of this Act, the
term of office of barangay elective officials reverted back to three (3) years
from five (5) years, and, this time, the legislators expressly declared that
no barangay elective official shall serve for more than three (3) consecutive
terms in the same position. The petitioners are very clear that they are not
assailing the validity of such provision fixing the three (3) consecutive term
limit rule for the election of barangay elective officials to the same
position. The particular provision the constitutionality of which is under
attack is that portion providing for the reckoning of the three (3)
consecutive term limit of barangay elective officials beginning from the
1994 barangay elections.

discriminate them by applying the proviso retroactively violates the

constitutionally enshrined principle of equal protection of the laws.
Although the Constitution grants Congress the power to determine such
successive term limit of barangay elective officials, the exercise of the
authority granted shall not otherwise transgress other constitutional and
statutory privileges.
This Court cannot subscribe to the position of the respondent that the
legislature clearly intended that the provision of RA No. 9164 be made
effective in 1994 and that such provision is valid and constitutional. If we
allow such premise, then the term of office for those officials elected in the
1997 barangay elections should have ended in year 2000 and not year
2002 considering that RA No. 9164 provides for a three-year term
of barangay elective officials. The amendment introduced by R.A. No. 8524
would be rendered nugatory in view of such retroactive application. This is
absurd and illusory.
True, no person has a vested right to a public office, the same not being
property within the contemplation of constitutional guarantee. However, a
cursory reading of the petition would show that the petitioners are not
claiming vested right to their office but their right to be voted upon by the
electorate without being burdened by the assailed provision of the law that,
in effect, rendered them ineligible to run for their incumbent positions. Such
right to run for office and be voted for by the electorate is the right being
sought to be protected by assailing the otherwise unconstitutional
provision.

xxx
Section 2, paragraph 2 of R.A. 9164 is not a mere restatement of
Section 43(c) of the Local Government Code. As discussed above, Section
43(c) of the Local Government Code does not provide for the consecutive
term limit rule of barangay elective officials. Such specific provision of the
Code has in fact amended the previous enactments (R.A. 6653 and R.A.
6679) providing for the consecutive term limit rule of barangay elective
officials. But, such specific provision of the Local Government Code was
amended by R.A. 9164, which reverted back to the previous policy of fixing
consecutive term limits of barangay elective officials. [3]
In declaring this retroactive application unconstitutional, the RTC explained that:
By giving a retroactive reckoning of the three (3) consecutive term limit rule
for barangay officials to the 1994 barangay elections, Congress has
violated not only the principle of prospective application of statutes but also
the equal protection clause of the Constitution inasmuch as
the barangay elective officials were singled out that their consecutive term
limit shall be counted retroactively. There is no rhyme or reason why the
consecutive limit for these barangay officials shall be counted retroactively
while the consecutive limit for other local and national elective officials are
counted prospectively. For if the purpose of Congress is [sic] to classify
elective barangay officials as belonging to the same class of public officers
whose term of office are limited to three (3) consecutive terms, then to

Moreover, the Court likewise agrees with the petitioners that the law
violated the one-act-one subject rule embodied in the Constitution. x x x x
The challenged laws title is AN ACT PROVIDING FOR THE
SYNCHRONIZED BARANGAY AND SANGGUNIANG KABATAAN ELECTI
ONS, AMENDING REPUBLIC ACT 7160 OTHERWISE KNOWN AS THE
LOCAL GOVERNMENT CODE OF 1991 AND FOR OTHER PURPOSES. x
xxx
xxxx
To this court, the non-inclusion in the title of the act on the retroactivity of
the reckoning of the term limits posed a serious constitutional breach,
particularly on the provision of the constitution [sic] that every bill must
embrace only one subject to be expressed in the title thereof.
x x x the Court is of the view that the affected barangay officials were not
sufficiently given notice that they were already disqualified by a new act,
when under the previous enactments no such restrictions were imposed.
Even if this Court would apply the usual test in determining the sufficiency
of the title of the bill, the challenged law would still be insufficient for how
can a retroactivity of the term limits be germane to the synchronization of
an election x x x x.[4]

The COMELEC moved to reconsider this decision but the RTC denied the motion. Hence, the
present petition on a pure question of law.

the alcalde mayor and the gobernadorcillo. The dato or rajah was much
later renamed cabeza de barangay, who was elected by the local citizens
possessing property. The position degenerated from a title of honor to that
of a mere government employee. Only the poor who needed a salary, no
matter how low, accepted the post.

The Petition
The COMELEC takes the position that the assailed law is valid and constitutional. RA No.
9164 is an amendatory law to RA No. 7160 (the Local Government Code of 1991 or LGC)
and is not a penal law; hence, it cannot be considered an ex post facto law. The three-term
limit, according to the COMELEC, has been specifically provided in RA No. 7160, and RA No.
9164 merely restated the three-term limitation. It further asserts that laws which are not penal
in character may be applied retroactively when expressly so provided and when it does not
impair vested rights. As there is no vested right to public office, much less to an elective post,
there can be no valid objection to the alleged retroactive application of RA No. 9164.
The COMELEC also argues that the RTCs invalidation of RA No. 9164 essentially
involves the wisdom of the law the aspect of the law that the RTC has no right to inquire into
under the constitutional separation of powers principle. The COMELEC lastly argues that
there is no violation of the one subject-one title rule, as the matters covered by RA No. 9164
are related; the assailed provision is actually embraced within the title of the law.
THE COURTS RULING
We find the petition meritorious. The RTC legally erred when it declared the challenged
proviso unconstitutional.
Preliminary Considerations

After
the
Americans
colonized
the Philippines,
the barangays became known as barrios. For some time, the laws
governing barrio governments were found in the Revised Administrative
Code of 1916 and later in the Revised Administrative Code of 1917. Barrios
were granted autonomy by the original Barrio Charter, RA 2370, and
formally recognized as quasi-municipal corporations by the Revised Barrio
Charter, RA 3590. During the martial law regime, barrios were declared or
renamed barangays -- a reversion really to their pre-Spanish names -- by
PD. No. 86 and PD No. 557. Their basic organization and functions under
RA 3590, which was expressly adopted as the Barangay Charter, were
retained.However, the titles of the officials were changed
to barangay captain, barangay councilman, barangay secretary
and barangay treasurer.
Pursuant to Sec. 6 of Batas Pambansa Blg. 222,
a Punong Barangay (Barangay Captain)
and
six Kagawads ng Sangguniang Barangay (Barangay Councilmen),
who
shall constitute the presiding officer and members of the Sangguniang
Barangay (Barangay Council) respectively were first elected on May 17,
1982. They had a term of six years which began on June 7, 1982.
The Local Government Code of 1983 also fixed the term of office
of local elective officials at six years. Under this Code, the chief officials
of
the barangay were
the punongbarangay,
six
elective sangguniang barangay members,
the kabataang barangay chairman,
a barangay secretary
and
a barangay treasurer.
B.P. Blg. 881, the Omnibus Election Code, reiterated
that barangay officials shall hold office for six years, and stated that their
election was to be held on the second Monday of May nineteen hundred
and eighty eight and on the same day every six years thereafter. [Emphasis
supplied.]

We find it appropriate, as a preliminary matter, to hark back to the pre-1987

Constitution history of the barangay political system as outlined by this Court in David v.
COMELEC,[5] and we quote:
As a unit of government, the barangay antedated the Spanish
conquest of the Philippines. The word barangay is derived from the
Malay balangay, a boat which transported them (the Malays) to these
shores. Quoting from Juan de Plasencia, a Franciscan missionary in 1577,
Historian Conrado Benitez wrote that the barangay was ruled by
a dato who exercised absolute powers of government. While the Spaniards
kept the barangay as the basic structure of government, they stripped
the dato or rajah of his powers. Instead, power was centralized nationally in
the governor general and locally in the encomiendero and later, in

The

1987

Philippine

Constitution

extended

constitutional

recognition

to barangays under Article X, Section 1 by specifying barangays as one of the territorial and
political subdivisions of the country, supplemented by Section 8 of the same Article X, which
provides:
SEC.
8. The
term
of
office
of
elective
local
officials, except barangay officials, which shall be determined by law,
shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of

time shall not be considered as an interruption in the continuity of his

service for the full term for which he was elected. [Emphasis supplied.]

MR. RODRIGO: I just wanted that clear in the record.[6] [Emphasis

supplied.]

The Constitutional Commissions deliberations on Section 8 show that the authority of

Congress to legislate relates not only to the fixing of the term of office of barangayofficials,
but also to the application of the three-term limit. The following deliberations of the
Constitutional Commission are particularly instructive on this point:
MR.

NOLLEDO: One

clarificatory
question,
Madam
President. What will be the term of the
office of barangay officials as provided
for?

After the effectivity of the 1987 Constitution, the barangay election originally
scheduled by Batas Pambansa Blg. 881[7] on the second Monday of May 1988 was reset to
the second Monday of November 1988 and every five years thereafter by RA No. 6653.
[8]

Section 2 of RA No. 6653 changed the term of office of barangayofficials and introduced a

term limitation as follows:

SEC. 2. The term of office of barangay officials shall be for five (5)
years from the first day of January following their election. Provided,
however, That no kagawad shall serve for more than two (2)
consecutive terms. [Emphasis supplied]

MR. DAVIDE: As may be determined by law.

MR. NOLLEDO: As provided for in the Local Government Code?
MR. DAVIDE: Yes.
xxxxxxxxx

Under Section 5 of RA No. 6653, the punong barangay was to be chosen by

seven kagawads from among themselves, and they in turn, were to be elected at large by

THE PRESIDENT: Is there any other comment? Is there any

objection to this proposed new section
as submitted by Commissioner Davide
and accepted by the Committee?
MR. RODRIGO: Madam President, does this prohibition to
serve
for
more
than
three
consecutive
terms
apply
to barangay officials?
MR. DAVIDE: Madam President, the voting that we had on the
terms of office did not include
the barangay officials because it
was then the stand of the Chairman
of the Committee on Local
Governments
that
the
term
of barangay officials
must
be
determined by law. So it is now for
the law to determine whether the
restriction on the number of
reelections will be included in the
Local Government Code.
MR. RODRIGO: So that is up to Congress to decide.
MR. DAVIDE: Yes.

the barangay electorate. The punong barangay, under Section 6 of the law, may be recalled
for loss of confidence by an absolute majority vote of the Sangguniang Barangay,embodied in
a resolution that shall necessarily include the punong barangays successor.
The election date set by RA No. 6653 on the second Monday of November 1988
was postponed yet again to March 28, 1989 by RA No. 6679 whose pertinent provision
states:
SEC. 1. The elections of barangay officials set on the second
Monday of November 1988 by Republic Act No. 6653 are hereby
postponed and reset to March 28, 1989. They shall serve a term which
shall begin on the first day of May 1989 and ending on the thirty-first
day of May 1994.
There shall be held a regular election of barangay officials on the
second Monday of May 1994 and on the same day every five (5) years
thereafter. Their term shall be for five (5) years which shall begin on the
first day of June following the election and until their successors shall have
been elected and qualified: Provided, That no barangay official shall
serve for more than three (3) consecutive terms.
The barangay elections shall be nonpartisan and shall be
conducted in an expeditious and inexpensive manner.
Significantly, the manner of election of the punong barangay was changed

Section 5 of the law provided that while the seven kagawads were to be elected by the
registered voters of the barangay, (t)he candidate who obtains the highest number of votes

Subsequently or on February 14, 1998, RA No. 8524 changed the three-year term

shall be the punong barangay and in the event of a tie, there shall be a drawing of lots under

of office of barangay officials under Section 43 of the LGC to five (5) years. On March 19,

the supervision of the Commission on Elections.

2002, RA No. 9164 introduced the following significant changes: (1) the term of office
of barangay officials

More than two (2) years after the 1989 barangay elections, RA No. 7160 (the LGC)
introduced the following changes in the law:
SEC.
41. Manner
of
Election. -(a)
The
x
x
x punong barangay shall be elected at large x x x by the qualified voters
therein.
SEC. 43. Term of Office. - (a) The term of office of all local elective
officials elected after the effectivity of this Code shall be three (3) years,
starting from noon of June 30, 1992 or such date as may be provided for by
law, except that of elective barangay officials: Provided, That all local
officials first elected during the local elections immediately following the
ratification of the 1987 Constitution shall serve until noon of June 30, 1992.
(b) No local elective official shall serve for more than three (3)
consecutive terms in the same position. Voluntary renunciation of the
office for any length of time shall not be considered as an interruption in the
continuity of service for the full term for which the elective official concerned
was elected.
(c) The term of office of barangay officials and members of
the sangguniang kabataan shall be for three (3) years, which shall
begin after the regular election of barangay officials on the second
Monday of May 1994.

was

again

fixed

at

three

years

on

the

reasoning

the barangay officials should not serve a longer term than their supervisors;

[10]

that

and (2) the

challenged proviso, which states that the 1994 election shall be the reckoning point for
the application of the three-term limit, was introduced. Yet another change was
introduced three years after or on July 25, 2005 when RA No. 9340 extended the term of the
then incumbent barangay officials due to expire at noon of November 30, 2005 under RA No.
9164 to noon of November 30, 2007. The three-year term limitation provision survived all
these changes.

Congress Plenary Power to

Legislate Term Limits for Barangay
Officials and Judicial Power

In passing upon the issues posed to us, we clarify at the outset the parameters of
our powers.
As reflected in the above-quoted deliberations of the 1987 Constitution, Congress
has plenary authority under the Constitution to determine by legislation not only the duration

SEC. 387. Chief Officials and Offices. -- (a) There shall be in

each barangay a punong
barangay,
seven
(7) sangguniang
barangay members,
the sangguniang
kabataanchairman,
a barangay secretary and a barangay treasurer.
xxxxxxxxx
SEC. 390. Composition. -- The Sangguniang barangay, the
legislative body of the barangay, shall be composed of the punong
barangay as presiding officer, and the seven (7) regular sanguniang
barangay members
elected
at
large
and
the sanguniang
kabataan chairman as members. [Emphasis supplied.]

of the term of barangay officials, but also the application to them of a consecutive term
limit. Congress invariably exercised this authority when it enacted no less than six
(6) barangay-related laws since 1987.
Through all these statutory changes, Congress had determined at its discretion both
the length of the term of office of barangay officials and their term limitation. Given the
textually demonstrable commitment by the 1987 Constitution to Congress of the authority to
determine the term duration and limition of barangay officials under the Constitution, we
consider it established that whatever Congress, in its wisdom, decides on these matters
are political

This law started the direct and separate election of the punong barangay by the
qualified voters in the barangay and not by the seven (7) kagawads from among themselves.
[9]

questions beyond

the

pale

of

judicial

scrutiny,[11] subject

only

to

the certiorari jurisdiction of the courts provided under Section 1, Article VIII of the Constitution
and to the judicial authority to invalidate any law contrary to the Constitution.[12]

Political questions refer to those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to which full

a. Interpretative / Historical Consideration

discretionary authority has been delegated to the legislative or executive branch of the
government; it is concerned with issues dependent upon the wisdom, not legalityof a
particular measure.

[13]

These questions, previously impervious to judicial scrutiny can now be

inquired into under the limited window provided by Section 1, Article VIII. Estrada v.

The respondents first objection to the challenged provisos constitutionality is its

purported

retroactive

application

of

the

three-term

limit

when

it

set

the

1994 barangay elections as a reckoning point in the application of the three-term limit.

Desierto[14] best describes this constitutional development, and we quote:

To a great degree, the 1987 Constitution has narrowed the reach of the
political doctrine when it expanded the power of judicial review of this
court not only to settle actual controversies involving rights which are
legally
demandable
and
enforceable
but also
to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government. Heretofore, the judiciary has focused on the
thou shalt nots of the Constitution directed against the exercise of its
jurisdiction. With the new provision, however, courts are given a greater
prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government. Clearly, the new provision did not
just grant the Court power of doing nothing. In sync and symmetry with this
intent are other provisions of the 1987 Constitution trimming the so called
political thicket. xxxx

The respondents argued that the term limit, although present in the previous laws,
was not in RA No. 7160 when it amended all previous barangay election laws.Hence, it was
re-introduced for the first time by RA No. 9164 (signed into law on March 19, 2002) and was
applied

retroactively

when

it

made

the

term

limitation

effective

from

the

1994 barangay elections. As the appealed ruling quoted above shows, the RTC fully agreed
with the respondents position.
Our first point of disagreement with the respondents and with the RTC is on their
position that a retroactive application of the term limitation was made under RA No. 9164. Our
own reading shows that no retroactive application was made because the three-term limit
has been there all along as early as the second barangay law (RA No. 6679) after the
1987 Constitution took effect; it was continued under the LGC and can still be found in

Thus, we can inquire into a congressional enactment despite the political question doctrine,
although the window provided us is narrow; the challenge must show grave abuse of

the current law. We find this obvious from a reading of the historical development of
the law.

discretion to justify our intervention.

The first law that provided a term limitation for barangay officials was RA No.
Other than the Section 1, Article VIII route, courts can declare a law invalid when it is
contrary to any provision of the Constitution. This requires the appraisal of the challenged law
against the legal standards provided by the Constitution, not on the basis of the wisdom of
the enactment. To justify its nullification, the breach of the Constitution must be clear and
unequivocal, not a doubtful or equivocal one, as every law enjoys a strong presumption of
constitutionality.[15] These are the hurdles that those challenging the constitutional validity of a
law must overcome.

6653 (1988); it imposed a two-consecutive term limit. After only six months, Congress,
under RA No. 6679 (1988), changed the two-term limit by providing for a three-consecutive
term limit. This consistent imposition of the term limit gives no hint of any equivocation in the
congressional intent to provide a term limitation. Thereafter, RA No. 7160 the LGC followed,
bringing with it the issue of whether it provided, as originally worded, for a three-term limit
for barangay officials. We differ with the RTC analysis of this issue.
Section 43 is a provision under Title II of the LGC on Elective Officials. Title II is
divided into several chapters dealing with a wide range of subject matters, allrelating to local

The present case, as framed by the respondents, poses no challenge on the issue
of grave abuse of discretion. The legal issues posed relate strictly to compliance with
constitutional standards. It is from this prism that we shall therefore resolve this case.
The Retroactive Application Issue

elective officials, as follows: a. Qualifications and Election (Chapter I); b. Vacancies and
Succession (Chapter II), c. Disciplinary Actions (Chapter IV) and d. Recall (Chapter V). Title II
likewise contains a chapter on Local Legislation (Chapter III).

These Title II provisions are intended to apply to all local elective officials, unless
the contrary is clearly provided. A contrary application is provided with respect to the
length of the term of office under Section 43(a); while it applies to all local elective officials, it

Second, the RTC interpretation is flawed because of its total disregard of the
historical background of Section 43(c) a backdrop that we painstakingly outlined above.

does not apply to barangay officials whose length of term is specifically provided by Section
43(c). In contrast to this clear case of an exception to a general rule, the three-term limit

From a historical perspective of the law, the inclusion of Section 43(c) in the LGC is

under Section 43(b) does not contain any exception; it applies to all local elective officials

an absolute necessity to clarify the length of term of barangay officials. Recall that under RA

who must perforce include barangay officials.

No. 6679, the term of office of barangay officials was five (5) years. The real concern was
how Section 43 would interface with RA No. 6679. Without a categorical statement on the

An alternative perspective is to view Sec. 43(a), (b) and (c) separately from one

length of the term of office of barangay officials, a general three-year term for all local elective

another as independently standing and self-contained provisions, except to the extent that

officials under Section 43(a), standing alone, may not readily and completely erase doubts on

they expressly relate to one another. Thus, Sec. 43(a) relates to the term of local elective

the intended abrogation of the 5-year term for barangay officials under RA No. 6679. Thus,

officials, except barangay officials whose term of office is separately provided under Sec.

Congress added Section 43(c) which provided a categorical three-year term for these

43(c). Sec. 43(b), by its express terms, relates to all local elective officials without any

officials. History tells us, of course, that the unequivocal provision of Section 43(c)

exception. Thus, the term limitation applies to all local elective officials without any exclusion

notwithstanding, an issue on what is the exact term of office of barangay officials was still

or qualification.

brought to us via a petition filed by no less than the President of the Liga ng Mga Barangay in
1997. We fully resolved the issue in the cited David v. Comelec.

Either perspective, both of which speak of the same resulting interpretation, is the
correct legal import of Section 43 in the context in which it is found in Title II of the LGC.

Section 43(c) should therefore be understood in this context and not in the sense
that it intended to provide the complete rule for the election of barangay officials, so that in

To be sure, it may be argued, as the respondents and the RTC did, that paragraphs
(a)

and

(b)

of

Section

43

are

the

general

law

for

elective

officials

the absence of any term limitation proviso under this subsection, no term limitation applies

(other

to barangay officials. That Congress had the LGCs three-term limit in mind when it enacted

than barangay officials); and paragraph (c) is the specific law on barangay officials, such that

RA No. 9164 is clear from the following deliberations in the House of Representatives

the silence of paragraph (c) on term limitation for barangay officials indicates the legislative

(House) on House Bill No. 4456 which later became RA No. 9164:

intent to exclude barangay officials from the application of the three-term limit. This reading,

MARCH 5, 2002:

however, is flawed for two reasons.

THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). Majority Leader.
First, reading Section 43(a) and (b) together to the exclusion of Section 43(c), is not
justified by the plain texts of these provisions. Section 43(a) plainly refers to local elective
officials, except elective barangay officials. In comparison, Section 43(b) refers to all local
elective officials without exclusions or exceptions. Their respective coverages therefore vary
so that one cannot be said to be of the same kind as the other. Their separate topics
additionally strengthen their distinction; Section 43(a) refers to the term of office while
Section 43(b) refers to the three-term limit. These differences alone indicate that Sections
43(a) and (b) cannot be read together as one organic whole in the way the RTC suggested.
Significantly, these same distinctions apply between Sec. 43(b) and (c).

REP. ESCUDERO. Mr. Speaker, next to interpellate is the Gentleman

from Zamboanga City. I ask that the Honorable Lobregat be recognized.
THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). The Honorable Lobregat
is recognized.
REP. LOBREGAT. Thank you very much, Mr. Speaker. Mr. Speaker, this is
just
REP. MACIAS. Willingly to the Gentleman from Zamboanga City.
REP. LOBREGAT. points of clarification, Mr. Speaker, the term of office. It
says in Section 4, The term of office of all Barangay and sangguniang
kabataan officials after the effectivity of this Act shall be three years. Then it

says, No Barangay elective official shall serve for more than three (3)
consecutive terms in the same position.
Mr. Speaker, I think it is the position of the committee that the first term
should be reckoned from election of what year, Mr. Speaker?

REP. SYJUCO. Mr. Speaker, on page 2, line 7, after the word position,
substitute the period (.) and add the following: PROVIDED HOWEVER
THAT THE TERM OF OFFICE SHALL BE RECKONED FROM THE 1994
BARANGAY ELECTIONS. So that the amended Section 4 now reads as
follows:

REP. MACIAS. After the adoption of the Local Government Code, Your
Honor. So that the first election is to be reckoned on, would be May 8,
1994, as far as the Barangay election is concerned.

SEC. 4. Term of Office. The term of office of all

barangay and sangguniang kabataan officials after the effectivity
of this Act shall be three (3) years.

REP. LOBREGAT. Yes, Mr. Speaker. So there was an election in 1994.

No barangay elective local official shall serve for more

than
three
(3) consecutive
terms in
the same
position COLON (:) PROVIDED, HOWEVER, THAT THE TERM
OF OFFICE SHALL BE RECKONED FROM THE
1994 BARANGAY ELECTIONS. Voluntary renunciation of office
for any length of time shall not be considered as an interruption
in the continuity of service for the full term for which the elective
official was elected.

REP. MACIAS. Then an election in 1997.

REP. LOBREGAT. There was an election in 1997. And there will be an
election this year
REP. LOBREGAT. election this year.
REP. MACIAS. That is correct. This will be the third.

The House therefore clearly operated on the premise that the LGC imposed a three-term limit
xxx xxx

for barangay officials, and the challenged proviso is its way of addressing any confusion that

REP. SUMULONG. Mr. Speaker.

may arise from the numerous changes in the law.

THE DEPUTY SPEAKER (Rep. Espinosa, E.R.) The Honorable Sumulong

is recognized.

All these inevitably lead to the conclusion that the challenged proviso has been there all

REP. SUMULONG. Again, with the permission of my Chairman, I would like

to address the question of Congressman Lobregat.
THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). Please proceed.
REP. SUMULONG. With respect to the three-year consecutive term
limits of Barangay Captains that is not provided for in the
Constitution and that is why the election prior to 1991 during the
enactment of the Local Government Code is not counted because it is
not in the Constitution but in the Local Government Code where the
three consecutive term limits has been placed. [Emphasis supplied.]

along and does not simply retroact the application of the three-term limit to
the barangay elections of 1994. Congress merely integrated the past statutory changes into a
seamless whole by coming up with the challenged proviso.
With this conclusion, the respondents constitutional challenge to the proviso based
on retroactivity must fail.
b. No Involvement of Any
Constitutional Standard

which led to the following exchanges in the House Committee on Amendments:

Separately from the above reason, the constitutional challenge must fail for a more

March 6, 2002

fundamental reason the respondents retroactivity objection does not involve a violation of any

COMMITTEE ON AMENDMENTS
REP. GONZALES. May
amendment, if any, Mr. Speaker.

we

now

proceed

constitutional standard.
to

committee

THE DEPUTY SPEAKER (Rep. Gonzalez). The Chair recognizes the

distinguished Chairman of the Committee on Suffrage and Electoral
Reforms.

Retroactivity of laws is a matter of civil law, not of a constitutional law, as its

governing law is the Civil Code,[16] not the Constitution. Article 4 of the Civil Code provides
that laws shall have no retroactive effect unless the contrary is provided. The application of
the Civil Code is of course self-explanatory laws enacted by Congress may permissibly

provide that they shall have retroactive effect. The Civil Code established a statutory norm,
not a constitutional standard.
The closest the issue of retroactivity of laws can get to a genuine constitutional issue
is if a laws retroactive application will impair vested rights. Otherwise stated, if a right has
already vested in an individual and a subsequent law effectively takes it away, a genuine due
process issue may arise. What should be involved, however, is a vested right to life, liberty or
property, as these are the ones that may be considered protected by the due process clause
of the Constitution.
In the present case, the respondents never raised due process as an issue. But
even assuming that they did, the respondents themselves concede that there is no vested
right to public office.[17] As the COMELEC correctly pointed out, too, there is no vested right to
an elective post in view of the uncertainty inherent in electoral exercises.
Aware of this legal reality, the respondents theorized instead that they had a right to
be voted upon by the electorate without being burdened by a law that effectively rendered
them ineligible to run for their incumbent positions. Again, the RTC agreed with this
contention.

A public office is not a property right. As the Constitution expressly

states, a [P]ublic office is a public trust. No one has a vested right to any
public office, much less a vested right to an expectancy of holding a public
office. In Cornejo v. Gabriel, decided in 1920, the Court already ruled:
Again, for this petition to come under the due
process of law prohibition, it would be necessary to
consider an office a property. It is, however, well
settled x x x that a public office is not property within
the sense of the constitutional guaranties of due
process of law, but is a public trust or agency. x x x The
basic idea of the government x x x is that of a popular
representative government, the officers being mere
agents and not rulers of the people, one where no one
man or set of men has a proprietary or contractual right
to an office, but where every officer accepts office
pursuant to the provisions of the law and holds the office
as a trust for the people he represents.
Petitioners, who apparently desire to hold public office, should
realize from the very start that no one has a proprietary right to public
office. While the law makes an SK officer an ex-officio member of a local
government legislative council, the law does not confer on petitioners a
proprietary right or even a proprietary expectancy to sit in local legislative
councils. The constitutional principle of a public office as a public trust
precludes any proprietary claim to public office. Even the State policy
directing equal access to opportunities for public service cannot bestow on
petitioners a proprietary right to SK membership or a proprietary
expectancy to ex-officio public offices.

was claimed as a property right within the meaning of the Constitution is a mere statutory

Moreover, while the State policy is to encourage the youths

involvement in public affairs, this policy refers to those who belong to the
class of people defined as the youth.Congress has the power to define who
are the youth qualified to join the SK, which itself is a creation of
Congress. Those who do not qualify because they are past the age group
defined as the youth cannot insist on being part of the youth. In
government service, once an employee reaches mandatory retirement age,
he cannot invoke any property right to cling to his office. In the same
manner, since petitioners are now past the maximum age for membership
in the SK, they cannot invoke any property right to cling to their SK
membership. [Emphasis supplied.]

right conferred by law. Montesclarosinstructively tells us:

To recapitulate, we find no merit in the respondents retroactivity arguments because:

We do not agree with the RTC, as we find no such right under the Constitution; if at
all, this claimed right is merely a restatement of a claim of vested right to a public office. What
the Constitution clearly provides is the power of Congress to prescribe the qualifications for
elective local posts;[18] thus, the question of eligibility for an elective local post is a matter for
Congress, not for the courts, to decide. We dealt with a strikingly similar issue
in Montesclaros v. Commission on Elections [19]where we ruled that SK membership which

Congress exercises the power to prescribe the qualifications

for SK membership. One who is no longer qualified because of an
amendment in the law cannot complain of being deprived of a proprietary
right to SK membership. Only those who qualify as SK members can
contest, based on a statutory right, any act disqualifying them from SK
membership or from voting in the SK elections. SK membership is not a
property right protected by the Constitution because it is a mere
statutory right conferred by law.Congress may amend at any time the
law to change or even withdraw the statutory right.

(1) the challenged proviso did not provide for the retroactive application to barangay officials
of the three-term limit; Section 43(b) of RA No. 9164 simply continued what had been there
before; and (2) the constitutional challenge based on retroactivity was not anchored on a
constitutional standard but on a mere statutory norm.
The Equal Protection Clause Issue

The equal protection guarantee under the Constitution is found under its Section 2,
Article III, which provides: Nor shall any person be denied the equal protection of the
laws. Essentially, the equality guaranteed under this clause is equality under the same

To determine whether there has been compliance with the

constitutional requirement that the subject of an act shall be expressed in
its title, the Court laid down the rule that
Constitutional provisions relating to the subject
matter and titles of statutes should not be so narrowly
construed as to cripple or impede the power of
legislation. The requirement that the subject of an act
shall be expressed in its title should receive a reasonable
and not a technical construction. It is sufficient if the title
be comprehensive enough reasonably to include the
general object which a statute seeks to effect, without
expressing each and every end and means necessary or
convenient for the accomplishing of that object.Mere
details need not be set forth. The title need not be an
abstract or index of the Act.

conditions and among persons similarly situated. It is equality among equals, not similarity of
treatment of persons who are different from one another on the basis of substantial
distinctions related to the objective of the law; when things or persons are different in facts or
circumstances, they may be treated differently in law.[20]
Appreciation of how the constitutional equality provision applies inevitably leads to
the conclusion that no basis exists in the present case for an equal protection challenge. The
law can treat barangay officials differently from other local elective officials because the
Constitution itself provides a significant distinction between these elective officials with

xxxx

respect to length of term and term limitation. The clear distinction, expressed in the
Constitution itself, is that while the Constitution provides for a three-year term and three-term
limit for local elective officials, it left the length of term and the application of the three-term
limit or any form of term limitation for determination by Congress through legislation. Not only
does this disparate treatment recognize substantial distinctions, it recognizes as well that the

x x x This Court has held that an act having a single general subject,
indicated in the title, may contain any number of provisions, no matter how
diverse they may be, so long as they are not inconsistent with or foreign to
the general subject, and may be considered in furtherance of such subject
by providing for the method and means of carrying out the general subject.

Constitution itself allows a non-uniform treatment. No equal protection violation can exist
under these conditions.
From another perspective, we see no reason to apply the equal protection clause as
a standard because the challenged proviso did not result in any differential treatment

xxxx
x x x Moreover, the avowed purpose of the constitutional directive that the
subject of a bill should be embraced in its title is to apprise the legislators of
the purposes, the nature and scope of its provisions, and prevent the
enactment into law of matters which have not received the notice, action
and study of the legislators and the public.

between barangay officials and all other elective officials. This conclusion proceeds from our
ruling on the retroactivity issue that the challenged proviso does not involve any retroactive
application.
Violation of the Constitutional
One Subject- One Title Rule

We find, under these settled parameters, that the challenged proviso does not violate the one
subject-one title rule.
First,

the

title

of

RA

No.

9164,

An

Act

Providing

for

Synchronized Barangay and Sangguniang Kabataang Elections, amending Republic Act No.
7160, as amended, otherwise known as the Local Government Code of 1991, states the laws

Every bill passed by the Congress shall embrace only one subject which shall be

general subject matter the amendment of the LGC to synchronize the barangay and SK

expressed in the title thereof. Farias v. Executive Secretary[21] provides the reasons for this

elections and for other purposes. To achieve synchronization of the barangay and SK

constitutional requirement and the test for its application, as follows:

elections, the reconciliation of the varying lengths of the terms of office of barangayofficials

The proscription is aimed against the evils of the so-called

omnibus bills and log-rolling legislation as well as surreptitious and/or
unconsidered encroaches. The provision merely calls for all parts of an act
relating to its subject finding expression in its title.

and SK officials is necessary. Closely related with length of term is term limitation which
defines the total number of terms for which a barangay official may run for and hold

office. This natural linkage demonstrates that term limitation is not foreign to the general
subject expressed in the title of the law.
Second, the congressional debates we cited above show that the legislators and the
public they represent were fully informed of the purposes, nature and scope of the laws
provisions. Term limitation therefore received the notice, consideration, and action from both
the legislators and the public.
Finally, to require the inclusion of term limitation in the title of RA No. 9164 is to
make the title an index of all the subject matters dealt with by law; this is not what the
constitutional requirement contemplates.
WHEREFORE, premises

considered,

we GRANT the

petition

and

accordingly AFFIRM the constitutionality of the challenged proviso under Section 2,

paragraph 2 of Republic Act No. 9164. Costs against the respondents.
SO ORDERED.

G.R. No. 178413

March 13, 2008

AQUILINO L. PIMENTEL III, petitioner,

vs.
THE COMMISSION ON ELECTIONS EN BANC SITTING AS THE NATIONAL BOARD OF
CANVASSERS, THE SPECIAL PROVINCIAL BOARD OF CANVASSERS FOR
MAGUINDANAO CHAIRED BY ATTY. EMILIO S. SANTOS, and JUAN MIGUEL F.
ZUBIRI, respondents.
DECISION

(MBOCs-Maguindanao) were present during the canvass proceedings before the SPBOCMaguindanao, the candidates legal counsels were not allowed to ask them any questions.
Due to the consistent denial by the SPBOC-Maguindanao of the repeated and persistent
motions made by Pimentels counsel to propound questions to PES Bedol and the
Chairpersons of the MBOCs-Maguindanao regarding the due execution and authenticity of
the Maguindanao MCOCs, Pimentels counsel manifested her continuing objection to the
canvassing of the said MCOCs. In particular, Pimentels counsel objected to the
Maguindanao MCOCs because:
a) the proceedings were illegal;

CHICO-NAZARIO, J.:

b) the MCOCs were palpably manufactured;

On 4 July 2007, petitioner Aquilino L. Pimentel III (Pimentel) filed the present Petition
for Certiorari and Mandamus (with Urgent Prayer for Temporary Restraining Order and/or
Status Quo Ante Order).1

c) the results reflected in the MCOCs were statistically improbable;

The Petition stemmed from the 14 May 2007 national elections for 12 senatorial posts. At the
time of filing of the Petition, around two months after the said elections, the 11 candidates
with the highest number of votes had already been officially proclaimed and had taken their
oaths of office as Senators. With other candidates conceding, the only remaining contenders
for the twelfth and final senatorial post were Pimentel and private respondent Juan Miguel F.
Zubiri (Zubiri). Public respondent Commission on Elections (COMELEC) en banc, acting as
the National Board of Canvassers (NBC), continued to conduct canvass proceedings so as to
determine the twelfth and last Senator-elect in the 14 May 2007 elections.
Pimentel assailed the proceedings before the NBC and its constituted Special Provincial
Board of Canvassers for Maguindanao (SPBOC-Maguindanao) in which the Provincial and
Municipal Certificates of Canvass (PCOC and MCOCs) from the province of Maguindanao
were respectively canvassed.
The SPBOC-Maguindanao was created because the canvass proceedings held before the
original Provincial Board of Canvassers for Maguindanao (PBOC-Maguindanao), chaired by
Provincial Election Supervisor (PES) Lintang Bedol, were marred by irregularities, and the
PCOC (Bedol PCOC) and other electoral documents submitted by the said PBOCMaguindanao were tainted with fraud and statistical improbabilities. Hence, the Bedol PCOC
was excluded from the national canvass then being conducted by the NBC.
Task Force Maguindanao, headed by COMELEC Chairman Benjamin S. Abalos, Sr. and
Commissioner Nicodemo T. Ferrer, retrieved and collected 21 MCOCs from the municipalities
of Maguindanao, mostly copy 2, or the copy intended to be posted on the wall. The SPBOCMaguindanao was then tasked to re-canvass the MCOCs submitted by Task Force
Maguindanao. The re-canvassing of the Maguindanao MCOCs was conducted by the
SPBOC-Maguindanao from 25 to 26 June 2007 at Shariff Aguak, Maguindanao. Although
PES Bedol and the Chairpersons of the Municipal Boards of Canvassers of Maguindanao

d) there is no basis for saying the MCOCs were authentic because there were no
other available copies for comparison purposes;
e) in most of the MCOCs[,] no watcher signed;
f) there was no evidence or indication that the copy 2 MCOCs had been posted as
intended by law;
g) the serial numbers of the MCOCs are not clearly stamped;
h) copy 2 of the MCOCs cannot be used for canvass;
i) that the MCOCs are therefore, improper, unworthy and unfit for canvass;
j) that the manner the "re-canvassing" which was being done where the parties are
not allowed to ask questions was patently illegal; and
k) that it has not been established that the other copies of the MCOCs have been
lost.2
All of the foregoing observations, manifestations, and objections made by Pimentels counsel,
as well as those made by the other candidates counsels, were simply noted by the SPBOCMaguindanao without specific action thereon.
On 29 June 2007, the SPBOC-Maguindanao submitted to the NBC the second PCOC for
Maguindanao. In the proceedings before the NBC, Pimentels counsel reiterated her request
to propound questions to PES Bedol and the Chairpersons of the MBOCs-Maguindanao and
the SPBOC-Maguindanao. The NBC, however, refused to grant her request. Pimentels
counsel thereafter moved for the exclusion of the second Maguindanao PCOC from the

canvass, maintaining that the said PCOC did not reflect the true results of the elections
because it was based on the manufactured Maguindanao MCOCs, the authenticity and due
execution of which had not been duly established. The motion to exclude made by Pimentels
counsel was once again denied by the NBC, and she was ordered to sit down or she would
be forcibly evicted from the session hall. The second Maguindanao PCOC was thus included
in the canvass proceedings conducted by the NBC and, resultantly, Pimentels lead over
Zubiri was significantly reduced from 133,000 votes to only 4,000 votes.
Pimentel averred that said canvass proceedings were conducted by the NBC and SPBOCMaguindanao in violation of his constitutional rights to substantive and procedural due
process and equal protection of the laws, and in obvious partiality to Zubiri. Pimentel thus
filed the Petition at bar on 4 July 2007, anchored on the following grounds:
I. The petitioner [Pimentel] was denied his right to due process of law when the
respondent SPBOC and the respondent NBC adopted an unconstitutional procedure
which disallowed the petitioner [Pimentel] the opportunity to raise questions on the
COCs subject of the canvass.
II. The petitioner [Pimentel] was denied his right to equal protection of the law when
the respondent SPBOC and the respondent NBC unconstitutionally adopted a
procedure of "no questions" in the canvass of COCs from Maguindanao, different
from the procedure adopted in the canvass of COCs from other provinces/areas.
III. The respondent NBC acted with manifest grave abuse of discretion when it
refused to exercise its broad, plenary powers in fully or accurately ascertaining due
execution, authenticity and fitness for the canvass of the MCOCs collected by the
Comelec in the exercise of such broad plenary powers. It violated its own rules
when it deprived petitioner [Pimentel] of the right to ventilate and prove his
objections to the Maguindanao COCs.3
Pimentel seeks from this Court the following remedies:
1. Forthwith ISSUE A TEMPORARY RESTRAINING ORDER enjoining the
respondent Commission on Elections en banc sitting as the National Board of
Canvassers for Senators for the May 14, 2007 elections ("NBC") from proceeding
with any proclamation (of the twelfth and last winner of the May 14, 2007 Elections
for Senators) based on the on-going senatorial canvass which includes the
new/second Provincial Certificate of Canvass of Maguindanao, until further orders
from this Court, or, in the alternative, in the event that the proclamation of
Respondent Zubiri is made before the application for a TRO is acted upon, ISSUE A
STATUS QUO ANTE ORDER requiring the parties to observe the status quo at the
time of the filing of the Petition, in order to maintain and preserve the situation of the
parties at the time of the filing of this Petition, so as not to render the issues raised in
this Petition moot and academic;

2. After proper proceedings, RENDER JUDGMENT: (a) ANNULLING AND

SETTING ASIDE for being unconstitutional and illegal the proceedings and acts of
respondent Commission on Elections en banc sitting as the National Board of
Canvassers for Senators for the May 14, 2007 elections ("NBC") of including, on
June 29, 2007, in the national canvass of votes for Senators the results from the
Province of Maguindanao as reflected in its new/second Provincial Certificate of
Canvass as well as the proceedings and acts of the respondent Special Provincial
Board of Canvassers for Maguindanao ("SPBOC") in canvassing or "re-canvassing"
the collected MCOCs, on June 25, 26 and 27, 2007, leading to the preparation of
the new/second PCOC for Maguindanao, and
(b) COMPELLING or ORDERING respondent NBC and its deputy, the SPBOC, to
perform their ministerial constitutional duty of fully determining the due execution
and authenticity of the MCOCs, including, but not limited to, allowing petitioner
[Pimentel] to substantiate his claim of manufactured results and propound questions
to the officers concerned, primarily, the Chairpersons of the former PBOC and
SPBOC of Maguindanao and the Chairpersons of the Municipal Boards of
Canvassers of Maguindanao.
Petitioner [Pimentel] also prays for other reliefs, just and equitable, under the
premises.4
Pursuant to the Resolution5 dated 10 July 2007 issued by this Court, Zubiri filed his
Comment6 on the Petition at bar on 12 July 2007; while the NBC and SPBOC-Maguindano,
chaired by Atty. Emilio S. Santos, filed their joint Comment7 on even date. The respondents
Zubiri, NBC, and SPBOC-Maguindanao collectively sought the denial of Pimentels
application for Temporary Restraining Order (TRO) and/or Status Quo Ante Order and the
dismissal of the instant Petition.
Pimentels prayer for the issuance of a TRO and/or Status Quo Ante Order was set for oral
arguments on 13 July 2007. After hearing the parties oral arguments, the Court voted seven
for the grant and seven for the denial of Pimentels prayer for the issuance of a TRO
and/or Status Quo Ante Order; thus, said prayer was deemed denied for failure to garner the
required majority vote. The parties were then directed to submit their respective Memoranda,
after which, the case would be deemed submitted for resolution.8 All the parties complied,
with Zubiri submitting his Memorandum9 on 31 July 2007; Pimentel,10 on 1 August 2007; and
the NBC and SPBOC-Maguindanao,11 on 10 August 2007.
In the meantime, without any TRO and/or Status Quo Ante Order from the Court, the canvass
proceedings before the NBC continued, and by 14 July 2007, Zubiri (with 11,004,099 votes)
and Pimentel (with 10,984,807 votes) were respectively ranked as the twelfth and thirteenth
Senatorial candidates with the highest number of votes in the 14 May 2007 elections. Since
the NBC found that the remaining uncanvassed certificates of canvass would no longer
materially affect Zubiris lead of 19,292 votes over Pimentel, it issued Resolution No. NBC 0767,12 dated 14 July 2007, proclaiming Zubiri as the twelfth duly elected Senator of the
Philippines in the 14 May 2007 elections, to serve for a term of six years beginning 30 June
2007 in accordance with the provisions of the Constitution.

On 19 July 2007, Zubiri filed with this Court a Manifestation with Motion to Dismiss.13 Zubiri
sought the dismissal of the Petition at bar arguing that, in consideration of his proclamation
pursuant to Resolution No. NBC 07-67 and his formal assumption of office on 16 July 2007,
controversies involving his election and qualification as a Senator are now within the
exclusive jurisdiction of the Senate Electoral Tribunal (SET).
Zubiri further informed the Court through a Manifestation,14 dated 16 August 2007, that
Pimentel filed an Election Protest (Ex Abudante Ad Cautelam) before the SET on 30 July
2007, docketed as SET Case No. 001-07, to which Zubiri filed his Answer Ad Cautelam (With
Special Affirmative Defenses, Counter-Protest and Petition for a Preliminary Hearing on the
Affirmative Defenses) on 13 August 2007. In his election protest, Pimentel prays, among
other remedies, for the annulment of Zubiris proclamation as the twelfth winning Senator in
the 14 May 2007 elections. Zubiri called the attention of the Court to the "glaring reality" that
with G.R. No. 178413 before this Court and SET Case No. 001-07 before the SET, "there are
now two cases involving the same parties with practically the same issues and similar
remedies sought filed before the two (2) separate courts/tribunals." Zubiri also pointed out
Pimentels ostensible failure to inform this Court of his institution of SET Case No. 001-07 and
the subsequent developments therein.
On 23 August 2007, Pimentel filed before this Court his Comment/Opposition (to Private
Respondents Manifestation with Motion to Dismiss).15 Pimentel alleged that Zubiris Motion to
Dismiss solely relied on Aggabao v. Commission on Elections.16 However, Pimentel argued
that Aggabao cannot be applied to the instant Petition because of the difference in the factual
backgrounds of the two cases. In Aggabao, therein petitioner Aggabao filed his Petition
before this Court after the proclamation of therein private respondent Miranda as
Congressman for the Fourth District of Isabela; while in the present case, Pimentel already
filed his Petition before this Court prior to the proclamation of Zubiri as Senator. Moreover,
Pimentel asserted that his Petition questioned not Zubiris proclamation, but the conduct of
the canvass proceedings before the NBC and SPBOC-Maguindanao. He maintained that his
case was one of first impression and no existing jurisprudence could be used as precedent
for its summary dismissal. Pimentel then reiterated his arguments in his Memorandum that
Sections 37 and 38 of Republic Act No. 9369,17 amending Sections 30 and 15 of Republic Act
No. 7166,18 respectively, significantly affected and changed the nature of canvass
proceedings, the nature of the duty of canvassing boards, and the extent of allowable preproclamation controversies in Senatorial elections. Based on the foregoing, Pimentel prayed
for the denial of Zubiris Motion to Dismiss.
After a close scrutiny of the allegations, arguments, and evidence presented by all the parties
before this Court, this Court rules to dismiss the present Petition.
Pre-proclamation controversy/case
A pre-proclamation controversy has been defined by Batas Pambansa Blg. 881, otherwise
known as the Omnibus Election Code of the Philippines, as follows:

SEC. 241. Definition. A pre-proclamation controversy is any question pertaining to

or affecting the proceeding of the board of canvassers which may be raised by any
candidate or by any registered political party or coalition of political parties before
the board or directly with the Commission, or any matter raised under Sections 233,
234, 235 and 236 in relation to the preparation, transmission, receipt, custody and
appearance of the election returns.
Under Republic Act No. 7166, providing for synchronized national and local elections, preproclamation controversies refer to matters relating to the preparation, transmission, receipt,
custody and appearance of election returns and certificates of canvass.19
Essentially reiterating Section 243 of the Omnibus Election Code, but adding the reference to
the certificates of canvass, COMELEC Resolution No. 7859, dated 17 April 2007, identified
the issues that may be subject of a pre-proclamation controversy, to wit:
SEC. 37. Issues that may be raised in pre-proclamation controversy. The following
shall be proper issues that may be raised in a pre-proclamation controversy:
1) Illegal composition or proceedings of the Board of Canvassers;
2) The canvassed election returns/certificates of canvass are incomplete, contain
material defects, appear to be tampered with or falsified, or contain discrepancies in
the same returns/certificates or in the other authentic copies thereof as mentioned in
Sections 233, 234, 235 and 236 of the Omnibus Election Code;
3) The election returns/certificates of canvass were prepared under duress, threats,
coercion, or intimidation, or they are obviously manufactured or not authentic; and
4) When substitute or fraudulent election return/certificates of canvass were
canvassed, the results of which materially affected the standing of the aggrieved
candidate or candidates.
Pre-proclamation cases to resolve pre-proclamation controversies are allowed in local
elections. According to Section 16 of Republic Act No. 7166:
SEC. 16. Pre-proclamation Cases Involving Provincial, City and Municipal Offices.
Pre-proclamation cases involving provincial, city and municipal officer shall be
allowed and shall be governed by Sections 17, 18, 19, 20, 21 and 22 hereof.
All pre-proclamation cases pending before the Commission shall be deemed
terminated at the beginning of the term of the office involved and the rulings of the
boards of canvassers concerned shall be deemed affirmed, without prejudice to the
filing of a regular election protest by the aggrieved party. However, proceedings may
continue when on the basis of the evidence thus far presented, the Commission

determines that the petition appears meritorious and accordingly issues an order for
the proceeding to continue or when an appropriate order has been issued by the
Supreme Court in a petition for certiorari.
SEC. 17. Pre-proclamation Controversies: How Commenced. Questions affecting
the composition or proceedings of the board of canvassers may be initiated in the
board or directly with the Commission. However, matters raised under Sections 233,
234, 235 and 236 of the Omnibus Election Code in relation to the preparation,
transmission, receipt, custody and appreciation of the election returns, and the
certificates of canvass shall be brought in the first instance before the board of
canvassers only.
However, as to elections for President, Vice-President, Senators, and Members of the House
of Representatives, pre-proclamation cases are prohibited. Section 15 of Republic Act No.
7166, prior to its amendment, read:
SEC. 15. Pre-proclamation Cases Not Allowed in Elections for President, VicePresident, Senator, and Member of the House of Representatives. For purposes of
the elections for President, Vice-President, Senator, and Member of the House of
Representatives, no pre-proclamation cases shall be allowed on matters relating to
the preparation, transmission, receipt, custody and appreciation of the election
returns or the certificates of canvass, as the case may be. However, this does not
preclude the authority of the appropriate canvassing body motu propio or upon
written complaint of an interested person to correct manifest errors in the certificate
of canvass or election returns before it.
Questions affecting the composition or proceedings of the board of canvassers may
be initiated in the board or directly with the Commission in accordance with Section
19 hereof.
Any objection on the election returns before the city or municipal board of
canvassers, or on the municipal certificates of canvass before the provincial board
of canvassers or district boards of canvassers in Metro Manila Area, shall be
specifically noted in the minutes of their respective proceedings.
As Section 15 of Republic Act No. 7166 was then worded, it would appear that any preproclamation case relating to the preparation, transmission, receipt, custody and appreciation
of election returns or certificates of canvass, was prohibited in elections for President, VicePresident, Senators and Members of the House of Representatives. The prohibition aims to
avoid delay in the proclamation of the winner in the election, which delay might result in a
vacuum in these sensitive posts. Proceedings which may delay the proclamation of the
winning candidate beyond the date20 set for the beginning of his term of office must be
avoided, considering that the effect of said delay is, in the case of national offices for which
there is no hold over, to leave the office without any incumbent.21

The law, nonetheless, recognizes an exception and allows the canvassing body motu
proprio or an interested person to file a written complaint for the correction of manifest errors
in the election returns or certificates of canvass even in elections for President, VicePresident, Senators and Members of the House of Representatives, for the simple reason
that the correction of manifest error will not prolong the process of canvassing nor delay the
proclamation of the winner in the election.22 To be manifest, the errors must appear on the
face of the certificates of canvass or election returns sought to be corrected and/or objections
thereto must have been made before the board of canvassers and specifically noted in the
minutes of their respective proceedings.23 The law likewise permits pre-proclamation cases in
elections for President, Vice-President, Senators and Members of the House of
Representatives, when these cases question the composition or proceedings of the board of
canvassers before the board itself or the COMELEC, since such cases do not directly relate
to the certificate of canvass or election returns.
Section 15 of Republic Act No. 7166, after the amendment introduced by Republic Act No.
9369, now reads:
SEC. 15. Pre-proclamation Cases in Elections for President, Vice-President,
Senator, and Member of the House of Representatives. For purposes of the
elections for president, vice-president, senator, and member of the House of
Representatives, no pre-proclamation cases shall be allowed on matters relating to
the preparation, transmission, receipt, custody and appreciation of election returns
or the certificates of canvass, as the case may be, except as provided for in
Section 30 hereof. However, this does not preclude the authority of the appropriate
canvassing body motu propio or upon written complaint of an interested person to
correct manifest errors in the certificate of canvass or election returns before it.
Questions affecting the composition or proceedings of the board of canvassers may
be initiated in the board or directly with the Commission in accordance with Section
19 hereof.
Any objection on the election returns before the city or municipal board of
canvassers, or on the municipal certificates of canvass before the provincial board
of canvassers or district board of canvassers in Metro Manila Area, shall be
specifically noticed in the minutes of their respective proceedings. (Emphasis
supplied.)
Republic Act No. 9369 significantly amended Section 15 of Republic Act No. 7166 by adding
an excepting phrase to the general prohibition against pre-proclamation controversies in
elections for President, Vice-President, Senators and Members of the House of
Representatives. According to the amended Section 15, no pre-proclamation cases on
matters relating to the preparation, transmission, receipt, custody and appreciation of election
returns or the certificates of canvass shall be allowed in elections for President, VicePresident, Senators and Members of the House of Representatives, except as provided by
Section 30 of the same statute.

Section 30 of Republic Act No. 7166, which was likewise amended by Republic Act No. 9369,
provides:
SEC. 30. Congress as the National Board of Canvassers for the Election of
President and Vice President: The Commission en banc as the National Board
of Canvassers for the election of senators:Determination of Authenticity and Due
Execution of Certificates of Canvass. Congress and the Commission en
banc shall determine the authenticity and due execution of the certificate of canvass
for president and vice-president and senators, respectively, as accomplished and
transmitted to it by the local board of canvassers, on a showing that: (1) each
certificate of canvass was executed, signed and thumbmarked by the chairman and
members of the board of canvassers and transmitted or caused to be transmitted to
Congress by them; (2) each certificate of canvass contains the names of all of the
candidates for president and vice-president or senator, as the case may be, and
their corresponding votes in words and figures; (3) there exists no discrepancy in
other authentic copies of the certificates of canvass or in any of its supporting
documents such as statement of votes by city/municipality/by precinct or
discrepancy in the votes of any candidate in words and figures in the certificate; and
(4) there exists no discrepancy in the votes of any candidate in words and
figures in the certificate of canvass against the aggregate number of votes
appearing in the election returns of precincts covered by the certificate of
canvass: Provided, That certified print copies of election returns or
certificates of canvass may be used for the purpose of verifying the existence
of the discrepancy.
When the certificate of canvass, duly certified by the board of canvassers of each
province, city or district, appears to be incomplete the Senate President or the
Chairman of the Commission, as the case may be shall require the board of
canvassers concerned to transmit by personal delivery the election returns from
polling places that were not included in the certificate of canvass and supporting
statements. Said election returns shall be submitted by personal delivery within two
(2) days from receipt of notice.
When it appears that any certificate of canvass or supporting statement of votes
by city/municipality or by precinct bears erasures or alterations which may cast
doubt as to the veracity of the number of votes stated herein and may affect the
result of the election, upon request of the presidential, vice-presidential or
senatorial candidate concerned or his party, Congress or the Commission en
banc, as the case may be, shall, for the sole purpose of verifying the actual
number of votes cast for President and Vice-President or senator, count the votes
as they appear in the copies of the election returns submitted to it.
In case of any discrepancy, incompleteness, erasure or alteration as
mentioned above, the procedure on pre-proclamation controversies shall be
adopted and applied as provided in Sections 17, 18, 19 and 20.

Any person who presents in evidence a simulated copy of an election return,

certificate of canvass or statement of votes, or a printed copy of an election
return, certificate of canvass or statement of votes bearing a simulated
certification or a simulated image, shall be guilty of an election offense and
shall be penalized in accordance with Batas Pambansa Blg. 881. (Emphasis
supplied.)
The highlighted portions in the afore-quoted section identify the amendments introduced by
Republic Act No. 9369, specifically: (1) the duty to determine the authenticity and due
execution of certificates of canvass is now imposed, not only on Congress acting as the NBC
for the election for President and Vice-President, but also on COMELEC en banc acting as
the NBC for the election for Senators; (2) the third criterion for the determination of the
authenticity and due execution of the certificates of canvass requires the absence of
discrepancy in comparison not only with other authentic copies of the said certificates, but
also with the supporting documents, such as the statements of votes; (3) a fourth criterion for
the determination of the authenticity and due execution of the certificates of canvass was
added, mandating the absence of discrepancy between the number of votes of a candidate in
a certificate when compared with the aggregate number of votes appearing in the election
returns of the precincts covered by the same certificate; (4) pursuant to the exception now
provided in Section 15 of Republic Act No. 7166, as amended by Republic Act No. 9369,
permissible pre-proclamation cases shall adopt and apply the procedure provided in Sections
17 to 20 of the same statute; and (5) the use of a simulated copy of an election return,
certificate of canvass, or statement of vote, or a printed copy of said election documents
bearing a simulated certification or image shall be penalized as an election offense.
Indeed, this Court recognizes that by virtue of the amendments introduced by Republic Act
No. 9369 to Sections 15 and 30 of Republic Act No. 7166, pre-proclamation cases involving
the authenticity and due execution of certificates of canvass are now allowed in elections for
President, Vice-President, and Senators. The intention of Congress to treat a case falling
under Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369, as a preproclamation case is apparent in the fourth paragraph of the said provision which adopts and
applies to such a case the same procedure provided under Sections 17,24 18,25 1926 and
2027 of Republic Act No. 7166 on pre-proclamation controversies.
In sum, in elections for President, Vice-President, Senators and Members of the House of
Representatives, the general rule still is that pre-proclamation cases on matters relating to
the preparation, transmission, receipt, custody and appreciation of election returns or
certificates of canvass are still prohibited. As with other general rules, there are recognized
exceptions to the prohibition, namely: (1) correction of manifest errors; (2) questions affecting
the composition or proceedings of the board of canvassers; and (3) determination of the
authenticity and due execution of certificates of canvass as provided in Section 30 of
Republic Act No. 7166, as amended by Republic Act No. 9369.
The Petition at bar

Pimentels objections to the Maguindanao MCOCs delve into "matters relating to the
preparation, transmission, receipt, custody and appreciation" of the said MCOCs by the
SPBOC-Maguindanao. He suspects the authenticity and due execution of the Maguindanao
MCOCs used by the SPBOC-Maguindanao in its canvass, which were mostly copy 2 or the
copy for the wall,28 because of the supposed mysterious circumstances surrounding the loss
or unavailability of any other copy of the said MCOCs. He decries the denial by the SPBOCMaguindanao and the NBC of the opportunity to question PES Bedol and the Chairpersons of
the MBOCs-Maguindanao on "where did that copy 2 come from, what was the basis, when
was it accomplished, how was it posted x x x";29 and to substantiate his claim that the
Maguindanao MCOCs are palpably manufactured and are not fit for canvass.30 He is raising
issues related to the tampering with, falsification of, or discrepancies in the Maguindanao
MCOCs, which are properly the subject of a pre-proclamation controversy.31
Pimentel insists that the SPBOC-Maguindanao and the NBC should hear his observations,
accept his evidence, and rule on his objections to the Maguindanao MCOCs in what would
undeniably be a pre-proclamation case. Ultimately, what Pimentel seeks is that his preproclamation case be given due course by the boards of canvassers.
Respondents contend that Pimentel cannot initiate and pursue a pre-proclamation case
before the SPBOC-Maguindanao or the NBC, since such a case is prohibited in elections for
Senators. Pimentel, however, argues that his pre-proclamation case is an exception to the
prohibition pursuant to Section 30, in relation to Section 15, of Republic Act No. 7166, as
amended by Republic Act No. 9369.
This Court rules for the respondents.
Proceedings before the SPBOC-Maguindanao
The SPBOC-Maguindanao, in the conduct of its canvass proceedings, properly refused to
allow Pimentel to contest the Maguindanao MCOCs at that stage by questioning PES Bedol
and the Chairpersons of the MBOCs-Maguindanao and presenting evidence to prove the
alleged manufactured nature of the said MCOCs, for such would be tantamount to a preproclamation case still prohibited by Section 15 of Republic Act No. 7166, even after its
amendment by Republic Act No. 9369.
The SPBOC-Maguindanao, as its name suggests, was constituted to be of the same stature
and to perform the same function as the PBOC-Maguindano: to canvass the Maguindanao
MCOCs and prepare the Maguindanao PCOC to be submitted to the NBC. Undeniably, the
SPBOC-Maguindanao is not Congress nor COMELEC en banc acting as the NBC,
specifically charged by Section 30 of Republic Act No. 7166, as amended by Republic
Act No. 9369, with the duty to determine the authenticity and due execution of the
certificates of canvass submitted to it in accordance with the four given criteria. There
is no ambiguity in the said provision, at least, as to whom it imposes the duty, namely:
(1) Congress as the NBC for the election for President and Vice-President; and
(2) COMELEC en banc as the NBC for the election for Senators. This is a case where the law

is clear. It speaks in a language that is categorical. It is quite explicit; it is too plain to be

misread. No interpretation is needed. All that is called for is to apply the statutory command.32
Even if there is still a need for this Court to construe Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369, it still cannot extend the scope of said provision to local
boards of canvassers. A pre-proclamation case under Section 30 is allowed only as an
exception to the prohibition under Section 15 of Republic Act No. 7166, as amended by
Republic Act No. 9369. According to the rules of statutory construction, exceptions, as a
general rule, are strictly, but reasonably construed; they extend only so far as their language
fairly warrants, and all doubts should be resolved in favor of the general provisions rather
than the exception. Where a general rule is established by statute with exceptions, the court
will not curtail the former nor add to the latter by implication.33 A maxim of recognized
practicality is the rule that the expressed exception or exemption excludes others. Exceptio
firmat regulim in casibus non exceptis. The express mention of exceptions operates to
exclude other exceptions; conversely, those which are not within the enumerated exceptions
are deemed included in the general rule.34 And, in this case, the exception applies only to
Congress or the COMELEC en banc acting as the NBC, and not to local boards of
canvassers who must still be deemed covered by the prohibition on pre-proclamation
controversies.
It is also significant to note that Section 15 of Republic Act No. 7166, as amended by
Republic Act No. 9369, prohibits pre-proclamation cases in elections for President, VicePresident, Senators, and Members of the House of Representatives; while Section 30 of
the same statute, as amended, refers only to elections for President, Vice-President and
Senators. The intent of the Legislature to confine the application of Section 30 of Republic
Act No. 7166, as amended by Republic Act No. 9369, only to Congress or the COMELEC en
banc acting as the NBC thus becomes even more evident, considering that the said provision
does not apply to elections for Members of the House of Representatives. It must be borne in
mind that only the votes for national elective positions such as the President, Vice-President,
and Senators are canvassed by the NBC. The canvassing of votes for local elective
positions, including those for Members of the House of Representatives, end with the local
boards of canvassers. Therefore, it would be contrary to the legislative intent to extend
Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369, even to the
canvass proceedings before local boards of canvassers.
This Court can only conclude that the canvass proceedings before local boards of
canvassers in elections for Senators are unaffected by the amendment of Republic Act No.
7166 by Republic Act No. 9369. They still remain administrative and summary in nature, so
as to guard against the paralyzation of canvassing and proclamation proceedings that would
lead to a vacuum in so important and sensitive office as that of Senator of the Republic.35
For the same reasons stated in the preceding paragraphs, the four criteria enumerated by
Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369, are not
mandatory on local boards of canvassers in their determination of authenticity and due
execution of the certificates of canvass submitted to them. It is already well-settled that the
local boards of canvassers, as well as the SPBOC-Maguindanao in this case, may proceed

with the canvassing of the election returns or certificates of canvass for as long as they
appear to be authentic and duly accomplished on their face.36

subject of a pre-proclamation controversy, which, as this Court already declared, is still

prohibited in proceedings before local boards of canvassers for elections for Senators.

Boards of canvassers are ad hoc bodies that exist only for the interim task of canvassing
election returns. They do not have the facilities, the time and even the competence to hear,
examine and decide on alleged election irregularities, unlike regular courts or the COMELEC
itself or the electoral tribunals (Presidential, Senate, and House), which are regular agencies
of government tasked and equipped for the purpose. While this Court has time and again
expressed its abhorrence of the nefarious "grab the proclamation and prolong the protest"
strategy of some candidates, nonetheless, it recognizes the very limited jurisdiction of
MBOCs and PBOCs. Unless Pimentel is able to show cogently and clearly his entitlement to
the summary exclusion of clearly unacceptable certificates of canvass, this Court must
uphold the constitutional and legal presumption of regularity in the performance of official
functions and authenticity of official documents.37

The resolution of the issues raised by Pimentel as to the irregularities and suspicious
circumstances surrounding the Maguindanao MCOCs, which appear prima facie regular on
their face, compels or necessitates the piercing of the veil of the said MCOCs. These issues,
however, are more appropriate in a regular election protest, wherein the parties may litigate
all the legal and factual issues raised by them in as much detail as they may deem necessary
or appropriate.40

The burden is upon Pimentel to establish that the Maguindanao MCOCs are manufactured,
and that it is evident on the face thereof. Pimentels insistence on being allowed to propound
questions to PES Bedol and the Chairpersons of the MBOCs-Maguindanao and SPBOCMaguindanao reveals that, although he has his suspicions, he has yet no actual evidence
that the Maguindanao MCOCs were indeed manufactured.
Moreover, Pimentels main objection to the Maguindanao MCOCs used in the canvass by the
SPBOC-Maguindanao is that they are mostly copy 2 or the copy intended to be posted on the
wall. According to Section 43 of COMELEC Resolution No. 7859, dated 17 April 2007, the
MBOCs must transmit copy 1 of the MCOCs to the PBOC for use in the provincial canvassing
of votes. The SPBOC-Maguindanao was compelled to use copy 2 of the Maguindanao
MCOCs in the absence of copy 1 thereof. The fact that copy 2 of the Maguindanao MCOCs
was not the copy meant for the PBOC-Maguindanao does not necessarily mean that copy 2
of the said MCOCs was manufactured, falsified or tampered with. All the seven copies of the
MCOCs required to be prepared by the MBOCs should be considered duplicate
originals.38 Just like copy 1 of the MCOCs, copy 2 should be afforded the presumption of
authenticity as an official document prepared by the MBOCs-Maguindanao in the regular
performance of their official functions. Copy 2 is no less authentic than all the other copies of
the MCOCs although it may be more susceptible to manufacture, falsification, or tampering. If
the manufacture, falsification, or tampering of copy 2 of the MCOCs is not apparent on its
face, the burden to prove the same falls on the candidate making the allegation in a regular
election protest. At least as far as the proceedings before the local boards of canvassers are
concerned, this Courts ruling in Pangarungan v. Commission on Elections39 still holds true: it
is not required that all the other copies of the election returns or certificates of canvass be
taken into account and compared with one another before one of them, determined to be
authentic, may be used or included in the canvass.
The SPBOC-Maguindanao determined that copy 2 of the Maguindanao MCOCs is authentic
and duly executed on its face, while Pimentel insists otherwise. This issue involves the
appreciation of copy 2 of the Maguindanao MCOCs by the SPBOC-Maguindanao, the proper

Proceedings before the COMELEC en banc acting as the NBC for elections for
Senators
Similarly, the COMELEC en banc acting as the NBC for the election for Senators, did not
violate Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369, when it
denied Pimentels request to question PES Bedol and the Chairpersons of the MBOCsMaguindanao and SPBOC-Maguindanao, and his subsequent motion to exclude the second
Maguindanao PCOC.
As already declared by this Court, the NBC has the duty to determine the authenticity and
due execution of the certificates of canvass submitted to it in accordance with the four criteria
enumerated in Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369. It
has not been established to the satisfaction of this Court that the NBC failed to comply with
its duty under said provision.
Pimentel asserts that in the absence of all the other copies of the Maguindanao MCOCs,
except copy 2, there is no way to apply the third criterion under Section 30 of Republic Act
No. 7166, as amended by Republic Act No. 9369. According to this criterion for authenticity
and due execution of a certificate of canvass, there must exist no discrepancy in other
authentic copies of the certificate or in any of its supporting documents such as the statement
of votes by city/municipality/precinct and no discrepancy in the votes of any candidate in
words and figures in the certificate. Pimentel posits that without any other copies available for
comparison, then copy 2 of the Maguindanao MCOCs cannot be deemed authentic and duly
executed.
While it is true that having only one copy of the certificate of canvass may raise problems as
to the determination by the NBC of its authenticity and due execution since there are no other
copies to compare it with, such is not the situation in the Petition at bar.
According to Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369,
Congress and the COMELEC en banc, acting as the NBC, shall determine the authenticity
and due execution of the certificates of canvass for President, Vice-President and Senators,
respectively, as accomplished and transmitted to them by the local boards of canvassers. For
the province of Maguindanao, it is the PBOC which transmits the PCOC to the NBC. For the
14 May 2007 senatorial elections, the NBC excluded from the national canvass the Bedol

PCOC submitted by the PBOC-Maguindanao after it found the same to be tainted by

irregularities and statistical improbabilities. Thereafter, the SPBOC-Maguindanao was
created, which re-canvassed the Maguindanao MCOCs and prepared and submitted to the
NBC the second Maguindanao PCOC.
Hence, the four criteria enumerated in Section 30 of Republic Act No. 7166, as amended by
Republic Act No. 9369, must be applied by the NBC to the second Maguindanao PCOC. The
authenticity and due execution of the Maguindanao MCOCs, which had already been
determined by the SPBOC-Maguindanao, are no longer in issue before the NBC. To allow
Pimentel to revive again before the NBC the issue of authenticity and due execution of the
Maguindanao MCOCs after a determination thereof by the SPBOC-Maguindanao is like
granting him an appeal, a remedy which is without any statutory or regulatory basis.
The SPBOC-Maguindanao prepared all seven copies of the second Maguindanao PCOC. It
properly submitted the first copy to the NBC for national canvassing of the votes for Senators.
All the six other copies are in existence and have been distributed to the intended recipients.
There is no allegation or proof that there is a discrepancy among the seven authentic copies
of the second Maguindanao PCOC. Neither is it shown that the second Maguindanao PCOC
contains any discrepancy when compared with its supporting documents. It would thus
appear to this Court that the second Maguindanao PCOC passed the third criterion for its
authenticity and due execution as provided in Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369. As for the three other criteria, there is no sufficient
allegation, much less proof, that the NBC did not apply them to the second Maguindanao
PCOC or that the second Maguindanao PCOC actually failed to meet any of them.
Given the foregoing, there is indeed no merit in Pimentels request before the NBC to still
question PES Bedol and the Chairpersons of the MBOCs-Maguindanao and SPBOCMaguindanao regarding the Maguindanao MCOCs. There is also no reason to exclude the
second Maguindanao PCOC from the national canvass of votes for Senators after its
authenticity and due execution had been determined by the NBC in accordance with the
criteria provided by the law.
Due process and equal protection of the law
Pimentel alleges that the proceedings before the NBC and the SPBOC-Maguindanao
disallowing him from asking certain election officials, such as PES Bedol and the
Chairpersons of the MBOCs-Maguindanao and SPBOC-Maguindanao, questions regarding
the Maguindanao PCOC and MCOCs, deprived him of his right to due process.
In City of Manila v. Hon. Laguio, Jr.,41 this Court already provided a discourse on due process,
to wit:
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 x x x."

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 police
power.
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.
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.
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.
Substantive due process, as that phrase connotes, asks whether the government
has an adequate reason for taking away a persons life, liberty, or property. In other
words, substantive due process looks to whether there is a sufficient justification for
the governments action. Case law in the United States (U.S.) tells us that whether
there is such a justification depends very much on the level of scrutiny used. For
example, if a law is in an area where only rational basis review is applied,
substantive due process is met so long as the law is rationally related to a legitimate
government purpose. But if it is an area where strict scrutiny is used, such as for
protecting fundamental rights, then the government will meet substantive due
process only if it can prove that the law is necessary to achieve a compelling
government purpose.
This Court finds Pimentels argument of deprivation of due process problematic since he has
not established what he is being deprived of: life, liberty, or property. He was a candidate in
the senatorial elections. At the time he filed the instant Petition, he might have been leading
in the canvassing of votes, yet the canvass proceedings were still ongoing, and no winner for
the twelfth and last senatorial post had been proclaimed. May he already claim a right to the
elective post prior to the termination of the canvass proceedings and his proclamation as

winner, and may such a right be considered a property right which he cannot be deprived of
without due process? These were clearly substantial and weighty issues which Pimentel did
not address. Unfortunately, this Court cannot argue and settle them for him.
Pimentel only made a sweeping claim that in the canvass proceedings of the Maguindanao
votes before the NBC and the SPBOC-Maguindanao, he was deprived of his constitutional
right to due process, both procedural and substantive. After going over his allegations,
however, and the definition of substantive due process, this Court finds that Pimentel cannot
invoke denial of substantive due process because he is not assailing any law, which,
arbitrarily or without sufficient justification, supposedly deprived him of life, liberty, or property.
At most, Pimentel can claim that he was denied procedural due process when he was not
allowed by the NBC and the SPBOC-Maguindanao to propound questions to certain election
officials. But even on this point, Pimentel fails to convince this Court. Asking election officials
questions and confronting them with evidence are not part of the canvass proceedings. There
is no statute or regulation expressly providing for such a procedure.
Any objection or manifestation concerning a certificate of canvass before the NBC, as well as
any contest involving the inclusion or exclusion of an election return or certificate of canvass
before a local board of canvassers, must be orally submitted to the Chairperson of the NBC
or the local board of canvassers, as the case may be. Simultaneous with the oral submission,
the party concerned must submit his written objection, manifestation, or contest in the form
required. The objection, manifestation, or contest shall also be recorded in the minutes of the
canvass. In the event that the NBC or local board of canvassers shall determine that there is
a proper case for the objection, manifestation, or contest submitted, it shall automatically
defer the canvass of the assailed election return or certificate of canvass. Within 24 hours
from the submission of the objection, manifestation, or contest, the party concerned shall
submit his evidence which shall be attached to his written objection, manifestation, or contest.
Within the same 24-hour period, any party may file a written and verified opposition to the
objection, manifestation, or contest. Upon receipt of the evidence, the NBC or the local board
of canvassers shall take up the assailed election return or certificate of canvass, and after
considering the objection, manifestation or contest, together with the opposition thereto and
the evidences submitted, shall summarily and immediately rule thereon.42
The afore-described procedure does not provide any party the opportunity to question and
confront election officials and other witnesses. It may have been allowed on occasion by the
boards of canvassers, but it does not necessarily ripen into a legally demandable right. Again,
canvass proceedings are administrative and summary in nature. As for local boards of
canvassers, in elections for Senators, they only need to determine the authenticity and due
execution of the election returns or certificates of canvass on the face thereof. As for the
COMELEC en banc, acting as the NBC, the determination of the authenticity and due
execution of the certificates of canvass shall be limited only to those submitted before it by
the local boards of canvassers and in accordance with the criteria provided in Section 30 of
Republic Act No. 7166, as amended by Republic Act No. 9369. The limitations on the powers
and duties of the boards of canvassers are meant to avoid any delay in the proclamation of

the elected official. Issues whose resolution would require the presentation and examination
of witnesses are more properly raised in a regular election protest.
And as a final observation on the matter of due process, this Court notes that although
Pimentel was not able to propound questions to the election officials involved in the
preparation and canvassing of the Maguindanao MCOCs and PCOC, he was still able,
through his counsel, to state his observations, manifestations, and objections regarding the
said certificates, which were duly noted.43 He may not have received the response or action
that he wanted with respect to his observations, manifestations, and objections, but Pimentel
cannot deny that these were heard and presented in the canvass proceedings. Pimentel
further admitted that he did not submit his written observations, manifestations, and
objections as the rules of procedure before the NBC and the local boards of canvassers
require.44 He cannot now decry that his observations, manifestations, and objections were not
given due course when he himself failed to comply with the procedure governing the same.
Equally baseless is Pimentels averment that his right to equal protection of the laws was
violated when the NBC and the SPBOC-Maguindanao adopted a procedure of "no questions"
in the canvass of the Maguindanao MCOCs, different from the procedure adopted in the
canvass of the certificates of canvass from other provinces/areas. Article III, Section 1 of the
1987 Constitution guarantees that no person shall be denied equal protection of the laws.
According to a long line of decisions, equal protection simply 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.45 According to
Pimentel, he was deprived of equal protection of the laws when he was not allowed to
question the election officials involved in the canvass proceedings for Maguindanao, although
he was allowed to do so for other provinces or districts. In support of his claim, Pimentel
compared his own experiences in the canvass proceedings for different provinces or districts.
This Court, however, finds Pimentels assessment misplaced. What would have been
essential for Pimentel to allege and prove was that other senatorial candidates were allowed
during the canvass proceedings to question the election officials involved in the preparation
and canvassing of the Maguindanao MCOCs and PCOC, while he was not; and that the other
senatorial candidates were given undue favor, while he was the only one unjustly
discriminated against. It seems apparent to this Court that the position of the SPBOCMaguindanao and the NBC not to allow, during the canvass proceedings, the questioning of
election officials involved in the preparation and canvassing of the Maguindanao MCOCs and
PCOC, was consistent for all senatorial candidates. Hence, petitioner was similarly situated
with all the other senatorial candidates and they were all treated alike insofar as the canvass
proceedings for Maguindanao were concerned.
Electoral protest before the Senate Electoral Tribunal (SET)
Pimentels Petition is for Certiorari and Mandamus, both governed by Rule 65 of the Rules of
Court.

A special civil action for certiorari may be filed under the following circumstances:
SECTION 1. Petition for certiorari. When any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in
the ordinary course of law, a person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require.
In a special civil action for certiorari, the burden is on the part of petitioner to prove not merely
reversible error, but grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of the public respondent issuing the impugned order. Grave abuse of discretion
means a capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction. Mere abuse of discretion is not enough, it must be so grave as when the power is
exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and
must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law.46
The extraordinary remedy of mandamus, on the other hand, may be availed of under the
conditions provided below:
RULE 65, SECTION 3. Petition for mandamus. 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, or unlawfully
excludes another from the use and enjoyment of a right or office to which such other
is entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be rendered
commanding the respondent, immediately or at some other time to be specified by
the court, to do the act required to be done to protect the rights of the petitioner, and
to pay the damages sustained by the petitioner by reason of the wrongful acts of the
respondent.
The writ of mandamus shall be issued only if the legal right to be enforced is well defined,
clear and certain. It lies only to compel an officer to perform a ministerial duty, not a
discretionary one. The duty is ministerial only when its discharge requires neither the
exercise of official discretion nor judgment.47
To avail of both special civil actions, there must be no other plain, speedy and adequate
remedy in the ordinary course of law available to the petitioner, and in this, Pimentels Petition
falters.

It must be kept in mind that Zubiri was proclaimed the twelfth Senator-elect in the 14 May
2007 elections on 14 July 2007, and that he formally assumed office on 16 July 2007. In
accordance with this Courts ruling in Aggabao, Pimentels Petition must be dismissed, for his
recourse lies, not with this Court, but with the SET.
This Court elucidated in Aggabao48 that:
Article VI, Section 17 of the 1987 Constitution provides:
Sec. 17. The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns,
and qualifications of their respective Members. Each Electoral Tribunal shall be
composed of nine Members, three of whom shall be Justices of the Supreme Court
to be designated by the Chief Justice, and the remaining six shall be Members of
the Senate or the House of Representatives, as the case may be, who shall be
chosen on the basis of proportional representation from the political parties and the
parties or organization registered under the party-list system represented therein.
The senior Justice in the Electoral Tribunal shall be its Chairman.
In Pangilinan v. Commission on Elections we ruled that:
The Senate and the House of Representatives now have their respective
Electoral Tribunals which are the "sole judge of all contests relating to the
election, returns, and qualifications of their respective Members, thereby
divesting the Commission on Elections of its jurisdiction under the 1973
Constitution over election cases pertaining to the election of the Members
of the Batasang Pambansa (Congress). It follows that the COMELEC is
now bereft of jurisdiction to hear and decide pre-proclamation controversies
against members of the House of Representatives as well as of the
Senate.
The HRET has sole and exclusive jurisdiction over all contests relative to the
election, returns, and qualifications of members of the House of Representatives.
Thus, once a winning candidate has been proclaimed, taken his oath, and assumed
office as a Member of the House of Representatives, COMELECs jurisdiction over
election contests relating to his election, returns, and qualifications ends, and the
HRETs own jurisdiction begins.
It is undisputed that Miranda has already been proclaimed, taken his oath and
assumed office on June 14, 2004. As such, petitioners recourse would have been to
file an electoral protest before the HRET. His remedy is not this petition for certiorari.
Thus:
Finally, the private respondent Feliciano Belmonte, Jr. has already been
proclaimed as the winner in the congressional elections in the fourth district

of Quezon City. He has taken his oath of office and assumed his duties as
representative; hence, the remedy open to the petitioner was to have filed
an electoral protest with the Electoral Tribunal of the House of
Representatives.

therefore crystal clear that this Court has no jurisdiction to entertain a petition
for certiorari and mandamus on matters which may be threshed out in an election contest. It
is the SET which has exclusive jurisdiction to act on the complaint of Pimentel involving, as it
does, a contest relating to the election of Zubiri, now a member of the Senate.

The allegation that Mirandas proclamation is null and void ab initio does not divest
the HRET of its jurisdiction. Thus:

Pimentel attempts to bring his case outside the jurisprudential precedent set by Aggabao, but
to no avail.

(I)n an electoral contest where the validity of the proclamation of a winning

candidate who has taken his oath of office and assumed his post as
Congressman is raised, that issue is best addressed to the HRET. The
reason for this ruling is self-evident, for it avoids duplicity of proceedings
and a clash of jurisdiction between constitutional bodies, with due regard to
the peoples mandate.
In Lazatin v. Commission on Elections we ruled that, upon proclamation of the
winning candidate and despite its alleged invalidity, the COMELEC is divested of its
jurisdiction to hear the protest. Thus:
The petition is impressed with merit because the petitioner has been
proclaimed winner of the Congressional elections in the first district of
Pampanga, has taken his oath of office as such, and assumed his duties
as Congressman. For this Court to take cognizance of the electoral protest
against him would be to usurp the functions of the House Electoral
Tribunal. The alleged invalidity of the proclamation (which has been
previously ordered by the COMELEC itself) despite alleged irregularities in
connection therewith, and despite the pendency of the protests of the rival
candidates, is a matter that is also addressed, considering the premises, to
the sound judgment of the Electoral Tribunal.
In this case, certiorari will not lie considering that there is an available and adequate
remedy in the ordinary course of law for the purpose of annulling or modifying the
proceedings before the COMELEC. After the proclamation, petitioners remedy was
an electoral protest before the HRET. The resolution of the issues presented in this
petition is best addressed to the sound judgment and discretion of the electoral
tribunal.
The afore-quoted pronouncements are likewise applicable to the Petition at bar, with the
references therein to the jurisdiction of the House of Representatives Electoral Tribunal over
election protests involving members of the House of Representatives also being true for the
SET as regards election protests involving Senators.
In Chavez v. Commission on Elections,49 this Court similarly ruled that the word "sole" in
Article VI, Section 17 of the 1987 Constitution underscores the exclusivity of the electoral
tribunals' jurisdiction over election contests relating to their respective members. It is

That Pimentel filed the present Petition prior to Zubiris proclamation is insignificant. Since
Pimentels prayer for a TRO and/or Status Quo Ante Order had been denied, Zubiri was
proclaimed the twelfth winning Senator in the 2007 Senatorial Elections.
Pimentel further claims that he is not challenging Zubiris proclamation, but rather the conduct
of the proceedings before the NBC and the SPBOC-Maguindanao. This is just a roundabout
argument. Pimentel cannot deny that he assails the canvass proceedings because he
believes that the annulment and setting aside thereof would result in his winning as the
twelfth Senator in the 14 May 2007 elections; and if he is the rightful winner, then logically
and necessarily, Zubiris proclamation must also be annulled and set aside.
Finally, while Section 15, in relation to Section 30, of Republic Act No. 7166, as amended by
Republic Act No. 9369, did introduce an additional exception to the prohibition against preproclamation controversies in elections for President, Vice-President, and Senators, this
Court has already established in the preceding discussion that Pimentel cannot invoke the
same in his Petition. The provisions in question did not materially change the nature of
canvass proceedings before the boards of canvassers, which still remain summary and
administrative in nature for the purpose of canvassing the votes and determining the elected
official with as little delay as possible and in time for the commencement of the new term of
office.
This Court deems it necessary to stress that attempts to delay the canvass proceedings,
except for the permissible pre-proclamation controversies, must be shunned. Grounds which
are proper for electoral protests should not be allowed to delay the proclamation of the
winners.50 It may well be true that public policy may occasionally permit the occurrence of
"grab the proclamation and prolong the protest" situations; that public policy, however,
balances the possibility of such situations against the shortening of the period during which
no winners are proclaimed, a period commonly fraught with tension and danger for the public
at large. For those who disagree with that public policy, the appropriate recourse is not to ask
this Court to abandon case law, which merely interprets faithfully existing statutory norms, to
engage in judicial legislation and in effect to rewrite portions of the Omnibus Election Code.
The appropriate recourse is, of course, to the Legislative Department of the Government and
to ask that Department to strike a new and different equilibrium in the balancing of the public
interests at stake.51
IN VIEW OF THE FOREGOING, the present Petition for Certiorari and Mandamus is
hereby DISMISSED. No costs.

SO ORDERED.

[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, petitioners, vs. HON. PERFECTO A.S. LAGUIO, JR., as
Presiding Judge, RTC, Manila and MALATE TOURIST DEVELOPMENT
CORPORATION, respondents.
DECISION

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[1] under Rule 45 (then Rule 42) of the Revised Rules on
Civil Procedure seeking the reversal of the Decision[2] in Civil Case No. 93-66511 of the
Regional Trial Court (RTC) of Manila, Branch 18 (lower court), [3] is the validity of Ordinance
No. 7783 (the Ordinance) of the City of Manila.[4]
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation (MTDC) is a corporation
engaged in the business of operating hotels, motels, hostels and lodging houses. [5] It built and
opened Victoria Court in Malate which was licensed as a motel although duly accredited with
the Department of Tourism as a hotel. [6] On 28 June 1993, MTDC filed a Petition for
Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or Temporary
Restraining Order[7] (RTC Petition) with the lower court impleading as defendants, herein
petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza, and the
members of the City Council of Manila (City Council). MTDC prayed that the Ordinance,
insofar as it includes motels and inns as among its prohibited establishments, be declared
invalid and unconstitutional.[8]
Enacted by the City Council[9] on 9 March 1993 and approved by petitioner City Mayor
on 30 March 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:

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 Courts 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

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 MTDCs
Victoria Court considering that these were not establishments for amusement or

entertainment and they were not services or facilities for entertainment, nor did they use
women as tools for entertainment, and neither did they disturb the community, annoy the
inhabitants or adversely affect the social and moral welfare of the community.[11]
MTDC further advanced that the Ordinance was invalid and unconstitutional for the
following reasons: (1) The City Council has no power to prohibit the operation of motels as
Section 458 (a) 4 (iv)[12] of the Local Government Code of 1991 (the Code) grants to the City
Council only the power to regulate the establishment, operation and maintenance of hotels,
motels, inns, pension houses, lodging houses and other similar establishments; (2) The
Ordinance is void as it is violative of Presidential Decree (P.D.) No. 499 [13] which specifically
declared portions of the Ermita-Malate area as a commercial zone with certain restrictions;
(3) The Ordinance does not constitute a proper exercise of police power as the compulsory
closure of the motel business has no reasonable relation to the legitimate municipal interests
sought to be protected; (4) The Ordinance constitutes an ex post factolaw by punishing the
operation of Victoria Court which was a legitimate business prior to its enactment; (5)
The Ordinance violates MTDCs constitutional rights in that: (a) it is confiscatory and
constitutes an invasion of plaintiffs 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[15] dated 23 July 1993, petitioners City of Manila and Lim maintained that
the City Council had the power to prohibit certain forms of entertainment in order to protect
the social and moral welfare of the community as provided for in Section 458 (a) 4 (vii) of the
Local Government Code,[16] which reads, thus:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:
....
(4) Regulate activities relative to the use of land, buildings and structures within the city in order to
promote the general welfare and for said purpose shall:
....
(vii) Regulate the establishment, operation, and maintenance of any entertainment or
amusement facilities, including theatrical performances, circuses, billiard pools, public
dancing schools, public dance halls, sauna baths, massage parlors, and other places for
entertainment or amusement; regulate such other events or activities for amusement or
entertainment, particularly those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the same; or, prohibit certain forms
of amusement or entertainment in order to protect the social and moral welfare of the
community.

Citing Kwong Sing v. City of Manila,[17] petitioners insisted that the power of regulation
spoken of in the above-quoted provision included the power to control, to govern and to
restrain places of exhibition and amusement.[18]
Petitioners likewise asserted that the Ordinance was enacted by the City Council of
Manila to protect the social and moral welfare of the community in conjunction with its police
power as found in Article III, Section 18(kk) of Republic Act No. 409, [19] otherwise known as
the Revised Charter of the City of Manila (Revised Charter of Manila)[20] which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
...
Section 18. Legislative powers. The Municipal Board shall have the following legislative
powers:
...
(kk) To enact all ordinances it may deem necessary and proper for the sanitation and safety,
the furtherance of the prosperity, and the promotion of the morality, peace, good order,
comfort, convenience, and general welfare of the city and its inhabitants, and such others
as may be necessary to carry into effect and discharge the powers and duties conferred by
this chapter; and to fix penalties for the violation of ordinances which shall not exceed two
hundred pesos fine or six months imprisonment, or both such fine and imprisonment, for a
single offense.
Further, the petitioners noted, the Ordinance had the presumption of validity; hence,
private respondent had the burden to prove its illegality or unconstitutionality.[21]
Petitioners also maintained that there was no inconsistency between P.D. 499 and
the Ordinance as the latter simply disauthorized certain forms of businesses and allowed the
Ermita-Malate area to remain a commercial zone. [22] The Ordinance, the petitioners likewise
claimed, cannot be assailed as ex post facto as it was prospective in operation.
[23]
The Ordinance also did not infringe the equal protection clause and cannot be denounced
as class legislation as there existed substantial and real differences between the ErmitaMalate area and other places in the City of Manila.[24]
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an
ex-parte temporary restraining order against the enforcement of the Ordinance.[25] And on 16
July 1993, again in an intrepid gesture, he granted the writ of preliminary injunction prayed for
by MTDC.[26]
After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision,
enjoining the petitioners from implementing the Ordinance. The dispositive portion of
said Decision reads:[27]
WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series of 1993, of the
City of Manila null and void, and making permanent the writ of preliminary injunction that had been
issued by this Court against the defendant. No costs.

SO ORDERED.[28]
Petitioners filed with the lower court a Notice of Appeal[29] on 12 December 1994,
manifesting that they are elevating the case to this Court under then Rule 42 on pure
questions of law.[30]
On 11 January 1995, petitioners filed the present Petition, alleging that the following
errors were committed by the lower court in its ruling: (1) It erred in concluding that the
subject ordinance is ultra vires, or otherwise, unfair, unreasonable and oppressive exercise of
police power; (2) It erred in holding that the questioned Ordinance contravenes P.D.
499[31] which allows operators of all kinds of commercial establishments, except those
specified therein; and (3) It erred in declaring the Ordinance void and unconstitutional.[32]
In the Petition and in its Memorandum,[33] petitioners in essence repeat the assertions
they made before the lower court. They contend that the assailed Ordinance was enacted in
the exercise of the inherent and plenary power of the State and the general welfare clause
exercised by local government units provided for in Art. 3, Sec. 18 (kk) of the Revised Charter
of Manila and conjunctively, Section 458 (a) 4 (vii) of the Code. [34] They allege that
the Ordinance is a valid exercise of police power; it does not contravene P.D. 499; and that it
enjoys the presumption of validity.[35]
In its Memorandum[36] dated 27 May 1996, private respondent maintains that
the Ordinance is ultra vires and that it is void for being repugnant to the general law. It
reiterates that the questioned Ordinance is not a valid exercise of police power; that it is
violative of due process, confiscatory and amounts to an arbitrary interference with its lawful
business; that it is violative of the equal protection clause; and that it confers on petitioner
City Mayor or any officer unregulated discretion in the execution of the Ordinance absent
rules to guide and control his actions.
This is an opportune time to express the Courts deep sentiment and tenderness for the
Ermita-Malate area being its home for several decades. A long-time resident, the Court
witnessed the areas many turn of events. It relished its glory days and endured its days of
infamy. Much as the Court harks back to the resplendent era of the Old Manila and yearns to
restore its lost grandeur, it believes that the Ordinance is not the fitting means to that end.
The Court is of the opinion, and so holds, that the lower court did not err in declaring
the Ordinance, as it did, ultra vires and therefore null and void.
The Ordinance is so replete with constitutional infirmities that almost every sentence
thereof violates a constitutional provision. The prohibitions and sanctions therein transgress
the cardinal rights of persons enshrined by the Constitution. The Court is called upon to
shelter these rights from attempts at rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions has held that
for an ordinance to be valid, it must not only be within the corporate powers of the local
government unit to enact and must be passed according to the procedure prescribed by law,
it must also conform to the following substantive requirements: (1) must not contravene the
Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and
consistent with public policy; and (6) must not be unreasonable.[37]
Anent the first criterion, ordinances shall only be valid when they are not contrary to the
Constitution and to the laws.[38] The Ordinance must satisfy two requirements: it must pass
muster under the test of constitutionality and the test of consistency with the prevailing laws.
That ordinances should be constitutional uphold the principle of the supremacy of the
Constitution. The requirement that the enactment must not violate existing law gives stress to

the precept that local government units are able to legislate only by virtue of their derivative
legislative power, a delegation of legislative power from the national legislature. The delegate
cannot be superior to the principal or exercise powers higher than those of the latter.[39]

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]

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]

Sec. 9. Private property shall not be taken for public use without just compensation. [47]

The Ordinance was passed by the City Council in the exercise of its police power, an
enactment of the City Council acting as agent of Congress. Local government units, as
agencies of the State, are endowed with police power in order to effectively accomplish and
carry out the declared objects of their creation. [41] This delegated police power is found in
Section 16 of the Code, known as the general welfare clause, viz:
SECTION 16. General Welfare.Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for
its efficient and effective governance, and those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local government units shall ensure and
support, among other things, the preservation and enrichment of culture, promote health and safety,
enhance the right of the people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their residents, maintain
peace and order, and preserve the comfort and convenience of their inhabitants.
Local government units exercise police power through their respective legislative
bodies; in this case, the sangguniang panlungsod or the city council. The Code empowers
the legislative bodies to enact ordinances, approve resolutions and appropriate funds for the
general welfare of the province/city/municipality and its inhabitants pursuant to Section 16 of
the Code and in the proper exercise of the corporate powers of the province/city/ municipality
provided under the Code.[42] The inquiry in this Petition is concerned with the validity of the
exercise of such delegated power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-reaching, is subordinate to
the constitutional limitations thereon; and is subject to the limitation that its exercise must be
reasonable and for the public good.[43] In the case at bar, the enactment of the Ordinance was
an invalid exercise of delegated power as it is unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the enjoyment by all the people of the blessings of
democracy.[44]
SEC. 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental
equality before the law of women and men.[45]

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, [49] and as
such it is a limitation upon the exercise of the police power.[50]
The purpose of the guaranty is to prevent governmental encroachment against the life,
liberty and property of individuals; to secure the individual from the arbitrary exercise of the
powers of the government, unrestrained by the established principles of private rights and
distributive justice; to protect property from confiscation by legislative enactments, from
seizure, forfeiture, and destruction without a trial and conviction by the ordinary mode of
judicial procedure; and to secure to all persons equal and impartial justice and the benefit of
the general law.[51]
The guaranty serves as a protection against arbitrary regulation, and private
corporations and partnerships are persons within the scope of the guaranty insofar as their
property is concerned.[52]
This clause has been interpreted as imposing two separate limits on government,
usually called procedural due process and substantive due process.
Procedural due process, as the phrase implies, refers to the procedures that the
government must follow before it deprives a person of life, liberty, or property. Classic
procedural due process issues are concerned with what kind of notice and what form of
hearing the government must provide when it takes a particular action.[53]
Substantive due process, as that phrase connotes, asks whether the government has
an adequate reason for taking away a persons life, liberty, or property. In other words,
substantive due process looks to whether there is a sufficient justification for the governments
action.[54] Case law in the United States (U.S.) tells us that whether there is such a justification
depends very much on the level of scrutiny used. [55] For example, if a law is in an area where
only rational basis review is applied, substantive due process is met so long as the law is
rationally related to a legitimate government purpose. But if it is an area where strict scrutiny
is used, such as for protecting fundamental rights, then the government will meet substantive
due process only if it can prove that the law is necessary to achieve a compelling government
purpose.[56]
The police power granted to local government units must always be exercised with
utmost observance of the rights of the people to due process and equal protection of the law.
Such power cannot be exercised whimsically, arbitrarily or despotically[57] as its exercise is
subject to a qualification, limitation or restriction demanded by the respect and regard due to
the prescription of the fundamental law, particularly those forming part of the Bill of Rights.
Individual rights, it bears emphasis, may be adversely affected only to the extent that may

fairly be required by the legitimate demands of public interest or public welfare. [58] Due
process requires the intrinsic validity of the law in interfering with the rights of the person to
his life, liberty and property.[59]
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the enactment of
the Ordinance, and to free it from the imputation of constitutional infirmity, not only must it
appear that the interests of the public generally, as distinguished from those of a particular
class, require an interference with private rights, but the means adopted must be reasonably
necessary for the accomplishment of the purpose and not unduly oppressive upon
individuals.[60] It must be evident that no other alternative for the accomplishment of the
purpose less intrusive of private rights can work. A reasonable relation must exist between
the purposes of the police measure and the means employed for its accomplishment, for
even under the guise of protecting the public interest, personal rights and those pertaining to
private property will not be permitted to be arbitrarily invaded.[61]
Lacking a concurrence of these two requisites, the police measure shall be struck down
as an arbitrary intrusion into private rights[62] a violation of the due process clause.
The Ordinance was enacted to address and arrest the social ills purportedly spawned
by the establishments in the Ermita-Malate area which are allegedly operated under the
deceptive veneer of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie
houses, cocktail lounges, hotels and motels. Petitioners insist that even the Court in the case
of Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila[63] had
already taken judicial notice of the alarming increase in the rate of prostitution, adultery and
fornication in Manila traceable in great part to existence of motels, which provide a necessary
atmosphere for clandestine entry, presence and exit and thus become the ideal haven for
prostitutes and thrill-seekers.[64]
The object of the Ordinance was, accordingly, the promotion and protection of the social
and moral values of the community. Granting for the sake of argument that the objectives of
the Ordinance are within the scope of the City Councils 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
communitys social ills can be achieved through means less restrictive of private rights; it can
be attained by reasonable restrictions rather than by an absolute prohibition. The closing
down and transfer of businesses or their conversion into businesses allowed under
the Ordinance have no reasonable relation to the accomplishment of its purposes. Otherwise
stated, the prohibition of the enumerated establishments will not per se protect and promote
the social and moral welfare of the community; it will not in itself eradicate the alluded social
ills of prostitution, adultery, fornication nor will it arrest the spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute
and establishments of the like which the City Council may lawfully prohibit, [65] it is baseless
and insupportable to bring within that classification sauna parlors, massage parlors, karaoke
bars, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and
inns. This is not warranted under the accepted definitions of these terms. The enumerated
establishments are lawful pursuits which are not per se offensive to the moral welfare of the
community.

That these are used as arenas to consummate illicit sexual affairs and as venues to
further the illegal prostitution is of no moment. We lay stress on the acrid truth that sexual
immorality, being a human frailty, may take place in the most innocent of places that it may
even take place in the substitute establishments enumerated under Section 3 of
the Ordinance. If the flawed logic of the Ordinance were to be followed, in the remote
instance that an immoral sexual act transpires in a church cloister or a court chamber, we
would behold the spectacle of the City of Manila ordering the closure of the church or court
concerned. Every house, building, park, curb, street or even vehicles for that matter will not
be exempt from the prohibition. Simply because there are no pure places where there are
impure men. Indeed, even the Scripture and the Tradition of Christians churches continually
recall the presence and universality of sin in mans 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 ErmitaMalate area would not only be purged of its supposed social ills, it would be extinguished of
its soul as well as every human activity, reprehensible or not, in its every nook and cranny
would be laid bare to the estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the core issues of
morality. Try as the Ordinance may to shape morality, it should not foster the illusion that it
can make a moral man out of it because immorality is not a thing, a building or establishment;
it is in the hearts of men. The City Council instead should regulate human conduct that
occurs inside the establishments, but not to the detriment of liberty and privacy which are
covenants, premiums and blessings of democracy.
While petitioners earnestness at curbing clearly objectionable social ills is
commendable, they unwittingly punish even the proprietors and operators of wholesome,
innocent establishments. In the instant case, there is a clear invasion of personal or property
rights, personal in the case of those individuals desirous of owning, operating and patronizing
those motels and property in terms of the investments made and the salaries to be paid to
those therein employed. If the City of Manila so desires to put an end to prostitution,
fornication and other social ills, it can instead impose reasonable regulations such as daily
inspections of the establishments for any violation of the conditions of their licenses or
permits; it may exercise its authority to suspend or revoke their licenses for these violations;
[67]
and it may even impose increased license fees. In other words, there are other means to
reasonably accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke
bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls,
motels and inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators of
the enumerated establishments are given three (3) months from the date of approval of
the Ordinance within which to wind up business operations or to transfer to any place outside
the Ermita-Malate area or convert said businesses to other kinds of business allowable within
the area. Further, it states in Section 4 that in cases of subsequent violations of the provisions
of the Ordinance, the premises of the erring establishment shall be closed and padlocked
permanently.

It is readily apparent that the means employed by the Ordinance for the achievement of
its purposes, the governmental interference itself, infringes on the constitutional guarantees
of a persons fundamental right to liberty and property.

The concept of liberty compels respect for the individual whose claim to privacy and
interference demands respect. As the case of Morfe v. Mutuc,[75] borrowing the words of
Laski, so very aptly stated:

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include the
right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be
dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed
to embrace the right of man to enjoy the facilities with which he has been endowed by his
Creator, subject only to such restraint as are necessary for the common welfare. [68] In
accordance with this case, the rights of the citizen to be free to use his faculties in all lawful
ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue
any avocation are all deemed embraced in the concept of liberty.[69]

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.

The U.S. Supreme Court in the case of Roth v. Board of Regents,[70] sought to clarify the
meaning of liberty. It said:
While the Court has not attempted to define with exactness the liberty. . . guaranteed [by the Fifth and
Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right
of the individual to contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God according to the dictates
of his own conscience, and generally to enjoy those privileges long recognizedas essential to the
orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that
the meaning of liberty must be broad indeed.
In another case, it also confirmed that liberty protected by the due process clause
includes personal decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education. In explaining the respect the Constitution
demands for the autonomy of the person in making these choices, the U.S. Supreme Court
explained:
These matters, involving the most intimate and personal choices a person may make in a lifetime,
choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth
Amendment. At the heart of liberty is the right to define ones 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 motels premisesbe it stressed
that their consensual sexual behavior does not contravene any fundamental state policy as
contained in the Constitution.[72] Adults have a right to choose to forge such relationships with
others in the confines of their own private lives and still retain their dignity as free persons.
The liberty protected by the Constitution allows persons the right to make this choice. [73] Their
right to liberty under the due process clause gives them the full right to engage in their
conduct without intervention of the government, as long as they do not run afoul of the law.
Liberty should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful government
restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be
let alone is the beginning of all freedomit is the most comprehensive of rights and the right
most valued by civilized men.[74]

Indeed, the right to privacy as a constitutional right was recognized in Morfe, the
invasion of which should be justified by a compelling state interest. Morfe accorded
recognition to the right to privacy independently of its identification with liberty; in itself it is
fully deserving of constitutional protection. Governmental powers should stop short of certain
intrusions into the personal life of the citizen.[76]
There is a great temptation to have an extended discussion on these civil liberties but
the Court chooses to exercise restraint and restrict itself to the issues presented when it
should. The previous pronouncements of the Court are not to be interpreted as a license for
adults to engage in criminal conduct. The reprehensibility of such conduct is not diminished.
The Court only reaffirms and guarantees their right to make this choice. Should they be
prosecuted for their illegal conduct, they should suffer the consequences of the choice they
have made. That, ultimately, is their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially divests the
respondent of the beneficial use of its property.[77] The Ordinance in Section 1 thereof forbids
the running of the enumerated businesses in the Ermita-Malate area and in Section 3
instructs its owners/operators to wind up business operations or to transfer outside the area
or convert said businesses into allowed businesses. An ordinance which permanently
restricts the use of property that it can not be used for any reasonable purpose goes beyond
regulation and must be recognized as a taking of the property without just compensation. [78] It
is intrusive and violative of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that private property shall
not be taken for public use without just compensation. The provision is the most important
protection of property rights in the Constitution. This is a restriction on the general power of
the government to take property. The constitutional provision is about ensuring that the
government does not confiscate the property of some to give it to others. In part too, it is
about loss spreading. If the government takes away a persons 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 governments regulation leaves no reasonable economically viable use of the
property.[80]

In the landmark case of Pennsylvania Coal v. Mahon,[81] it was held that a taking also
could be found if government regulation of the use of property went too far. When regulation
reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent
domain and compensation to support the act. While property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a taking.[82]
No formula or rule can be devised to answer the questions of what is too far and when
regulation becomes a taking. In Mahon, Justice Holmes recognized that it was a question of
degree and therefore cannot be disposed of by general propositions. On many other
occasions as well, the U.S. Supreme Court has said that the issue of when regulation
constitutes a taking is a matter of considering the facts in each case. The Court asks whether
justice and fairness require that the economic loss caused by public action must be
compensated by the government and thus borne by the public as a whole, or whether the
loss should remain concentrated on those few persons subject to the public action.[83]

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.

What is crucial in judicial consideration of regulatory takings is that government

regulation is a taking if it leaves no reasonable economically viable use of property in a
manner that interferes with reasonable expectations for use.[84] A regulation that permanently
denies all economically beneficial or productive use of land is, from the owners point of view,
equivalent to a taking unless principles of nuisance or property law that existed when the
owner acquired the land make the use prohibitable. [85] When the owner of real property has
been called upon to sacrifice all economically beneficial uses in the name of the common
good, that is, to leave his property economically idle, he has suffered a taking.[86]

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.

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 regulations 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]

Distinction should be made between destruction from necessity and eminent domain. It
needs restating that the property taken in the exercise of police power is destroyed because it
is noxious or intended for a noxious purpose while the property taken under the power of
eminent domain is intended for a public use or purpose and is therefore wholesome. [89] If it be
of public benefit that a wholesome property remain unused or relegated to a particular
purpose, then certainly the public should bear the cost of reasonable compensation for the
condemnation of private property for public use.[90]

A restriction on use of property may also constitute a taking if not reasonably necessary
to the effectuation of a substantial public purpose or if it has an unduly harsh impact on the
distinct investment-backed expectations of the owner.[88]
The Ordinance gives the owners and operators of the prohibited establishments three
(3) months from its approval within which to wind up business operations or to transfer to any
place outside of the Ermita-Malate area or convert said businesses to other kinds of business
allowable within the area. The directive to wind up business operations amounts to a closure
of the establishment, a permanent deprivation of property, and is practically confiscatory.
Unless the owner converts his establishment to accommodate an allowed business, the
structure which housed the previous business will be left empty and gathering dust. Suppose
he transfers it to another area, he will likewise leave the entire establishment idle.
Consideration must be given to the substantial amount of money invested to build the edifices
which the owner reasonably expects to be returned within a period of time. It is apparent that
the Ordinance leaves no reasonable economically viable use of property in a manner that
interferes with reasonable expectations for use.
The second and third options to transfer to any place outside of the Ermita-Malate area
or to convert into allowed businessesare confiscatory as well. The penalty of permanent
closure in cases of subsequent violations found in Section 4 of the Ordinance is also
equivalent to a taking of private property.

Further, the Ordinance fails to set up any standard to guide or limit the petitioners
actions. It in no way controls or guides the discretion vested in them. It provides no definition
of the establishments covered by it and it fails to set forth the conditions when the
establishments come within its ambit of prohibition. The Ordinance confers upon the mayor
arbitrary and unrestricted power to close down establishments. Ordinances such as this,
which make possible abuses in its execution, depending upon no conditions or qualifications
whatsoever other than the unregulated arbitrary will of the city authorities as the touchstone
by which its validity is to be tested, are unreasonable and invalid. The Ordinance should have
established a rule by which its impartial enforcement could be secured.[91]
Ordinances placing restrictions upon the lawful use of property must, in order to be valid
and constitutional, specify the rules and conditions to be observed and conduct to avoid; and
must not admit of the exercise, or of an opportunity for the exercise, of unbridled discretion by
the law enforcers in carrying out its provisions.[92]
Thus, in Coates v. City of Cincinnati,[93] as cited in People v. Nazario,[94] the U.S.
Supreme Court struck down an ordinance that had made it illegal for three or more persons
to assemble on any sidewalk and there conduct themselves in a manner annoying to persons
passing by. The ordinance was nullified as it imposed no standard at all because one may
never know in advance what annoys some people but does not annoy others.
Similarly, the Ordinance does not specify the standards to ascertain which
establishments tend to disturb the community, annoy the inhabitants, and adversely affect the

social and moral welfare of the community. The cited case supports the nullification of
the Ordinance for lack of comprehensible standards to guide the law enforcers in carrying out
its provisions.
Petitioners cannot therefore order the closure of the enumerated establishments without
infringing the due process clause. These lawful establishments may be regulated, but not
prevented from carrying on their business. This is a sweeping exercise of police power that is
a result of a lack of imagination on the part of the City Council and which amounts to an
interference into personal and private rights which the Court will not countenance. In this
regard, we take a resolute stand to uphold the constitutional guarantee of the right to liberty
and property.
Worthy of note is an example derived from the U.S. of a reasonable regulation which is
a far cry from the ill-considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas,[95] the city of Dallas adopted a comprehensive ordinance
regulating sexually oriented businesses, which are defined to include adult arcades,
bookstores, video stores, cabarets, motels, and theaters as well as escort agencies, nude
model studio and sexual encounter centers. Among other things, the ordinance required that
such businesses be licensed. A group of motel owners were among the three groups of
businesses that filed separate suits challenging the ordinance. The motel owners asserted
that the city violated the due process clause by failing to produce adequate support for its
supposition that renting room for fewer than ten (10) hours resulted in increased crime and
other secondary effects. They likewise argued than the ten (10)-hour limitation on the rental
of motel rooms placed an unconstitutional burden on the right to freedom of association.
Anent the first contention, the U.S. Supreme Court held that the reasonableness of the
legislative judgment combined with a study which the city considered, was adequate to
support the citys determination that motels permitting room rentals for fewer than ten (10 )
hours should be included within the licensing scheme. As regards the second point, the Court
held that limiting motel room rentals to ten (10) hours will have no discernible effect on
personal bonds as those bonds that are formed from the use of a motel room for fewer than
ten (10) hours are not those that have played a critical role in the culture and traditions of the
nation by cultivating and transmitting shared ideals and beliefs.
The ordinance challenged in the above-cited case merely regulated the targeted
businesses. It imposed reasonable restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila,[96] it needs pointing out, is also different from this case in that what was involved
therein was a measure which regulated the mode in which motels may conduct business in
order to put an end to practices which could encourage vice and immorality. Necessarily,
there was no valid objection on due process or equal protection grounds as the ordinance did
not prohibit motels. The Ordinance in this case however is not a regulatory measure but is an
exercise of an assumed power to prohibit.[97]
The foregoing premises show that the Ordinance is an unwarranted and unlawful
curtailment of property and personal rights of citizens. For being unreasonable and an undue
restraint of trade, it cannot, even under the guise of exercising police power, be upheld as
valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should be treated
alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other
words, should not be treated differently, so as to give undue favor to some and unjustly

discriminate against others.[98] The guarantee means that no person or class of persons shall
be denied the same protection of laws which is enjoyed by other persons or other classes in
like circumstances.[99] The equal protection of the laws is a pledge of the protection of equal
laws.[100] It limits governmental discrimination. The equal protection clause extends to artificial
persons but only insofar as their property is concerned.[101]
The Court has explained the scope of the equal protection clause in this wise:
What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure Administration: The ideal
situation is for the laws benefits to be available to all, that none be placed outside the sphere of its
coverage. Only thus could chance and favor be excluded and the affairs of men governed by that
serene and impartial uniformity, which is of the very essence of the idea of law. There is recognition,
however, in the opinion that what in fact exists cannot approximate the ideal. Nor is the law susceptible
to the reproach that it does not take into account the realities of the situation. The constitutional
guarantee then is not to be given a meaning that disregards what is, what does in fact exist. To assure
that the general welfare be promoted, which is the end of law, a regulatory measure may cut into the
rights to liberty and property. Those adversely affected may under such circumstances invoke the equal
protection clause only if they can show that the governmental act assailed, far from being inspired by
the attainment of the common weal was prompted by the spirit of hostility, or at the very least,
discrimination that finds no support in reason. Classification is thus not ruled out, it being sufficient to
quote from the Tuason decision anew that the laws operate equally and uniformly on all persons under
similar circumstances or that all persons must be treated in the same manner, the conditions not being
different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference
cannot be allowed. For the principle is that equal protection and security shall be given to every person
under circumstances which, if not identical, are analogous. If law be looked upon in terms of burden or
charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast
on some in the group equally binding on the rest.[102]
Legislative bodies are allowed to classify the subjects of legislation. If the classification
is reasonable, the law may operate only on some and not all of the people without violating
the equal protection clause.[103] The classification must, as an indispensable requisite, not be
arbitrary. To be valid, it must conform to the following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.[104]
In the Courts 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 prostitutionone of the hinted ills the Ordinance aims to banishis not a profession exclusive
to women. Both men and women have an equal propensity to engage in prostitution. It is not
any less grave a sin when men engage in it. And why would the assumption that there is an
ongoing immoral activity apply only when women are employed and be inapposite when men
are in harness? This discrimination based on gender violates equal protection as it is not
substantially related to important government objectives.[105] Thus, the discrimination is
invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass the test of
consistency with prevailing laws.
C.

The 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:

(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[106] that:
The word regulate, as used in subsection (l), section 2444 of the Administrative Code, means and
includes the power to control, to govern, and to restrain; but regulate should not be construed as
synonymous with suppress or prohibit. Consequently, under the power to regulate laundries, the
municipal authorities could make proper police regulations as to the mode in which the employment or
business shall be exercised.[107]
And in People v. Esguerra,[108] wherein the Court nullified an ordinance of the
Municipality of Tacloban which prohibited the selling, giving and dispensing of liquor
ratiocinating that the municipality is empowered only to regulate the same and not prohibit.
The Court therein declared that:

...

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

(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 . . . .

These doctrines still hold contrary to petitioners assertion[110] that they were modified by
the Code vesting upon City Councils prohibitory powers.

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:
...

Similarly, the City Council exercises regulatory powers over public dancing schools,
public dance halls, sauna baths, massage parlors, and other places for entertainment or
amusement as found in the first clause of Section 458 (a) 4 (vii). Its powers to regulate,
suppress and suspend such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the inhabitants and to prohibit
certain forms of amusement or entertainment in order to protect the social and moral welfare
of the community are stated in the second and third clauses, respectively of the same
Section. The several powers of the City Council as provided in Section 458 (a) 4 (vii) of the
Code, it is pertinent to emphasize, are separated by semi-colons (;), the use of which
indicates that the clauses in which these powers are set forth are independent of each other
albeit closely related to justify being put together in a single enumeration or paragraph.
[111]
These powers, therefore, should not be confused, commingled or consolidated as to
create a conglomerated and unified power of regulation, suppression and prohibition.[112]

The Congress unequivocably specified the establishments and forms of amusement or

entertainment subject to regulation among which are beerhouses, hotels, motels, inns,
pension houses, lodging houses, and other similar establishments (Section 458 (a) 4 (iv)),
public dancing schools, public dance halls, sauna baths, massage parlors, and other places
for entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot
be included as among other events or activities for amusement or entertainment, particularly
those which tend to disturb the community or annoy the inhabitants or certain forms of
amusement or entertainment which the City Council may suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are expressly granted to it and
those which are necessarily implied or incidental to the exercise thereof. By reason of its
limited powers and the nature thereof, said powers are to be construed strictissimi juris and
any doubt or ambiguity arising out of the terms used in granting said powers must be
construed against the City Council.[113] Moreover, it is a general rule in statutory construction
that the express mention of one person, thing, or consequence is tantamount to an express
exclusion of all others. Expressio unius est exclusio alterium. This maxim is based upon the
rules of logic and the natural workings of human mind. It is particularly applicable in the
construction of such statutes as create new rights or remedies, impose penalties or
punishments, or otherwise come under the rule of strict construction.[114]
The argument that the City Council is empowered to enact the Ordinance by virtue of
the general welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of
Manila is likewise without merit. On the first point, the ruling of the Court in People v.
Esguerra,[115] is instructive. It held that:
The powers conferred upon a municipal council in the general welfare clause, or section 2238 of the
Revised Administrative Code, refers to matters not covered by the other provisions of the same Code,
and therefore it can not be applied to intoxicating liquors, for the power to regulate the selling, giving
away and dispensing thereof is granted specifically by section 2242 (g) to municipal councils. To hold
that, under the general power granted by section 2238, a municipal council may enact the ordinance in
question, notwithstanding the provision of section 2242 (g), would be to make the latter superfluous
and nugatory, because the power to prohibit, includes the power to regulate, the selling, giving away
and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later expression of the
legislative will must necessarily prevail and override the earlier law, the Revised Charter of
Manila. Legis posteriores priores contrarias abrogant, or later statute repeals prior ones
which are repugnant thereto. As between two laws on the same subject matter, which are
irreconcilably inconsistent, that which is passed later prevails, since it is the latest expression
of legislative will.[116] If there is an inconsistency or repugnance between two statutes, both
relating to the same subject matter, which cannot be removed by any fair and reasonable
method of interpretation, it is the latest expression of the legislative will which must prevail
and override the earlier.[117]
Implied repeals are those which take place when a subsequently enacted law contains
provisions contrary to those of an existing law but no provisions expressly repealing them.
Such repeals have been divided into two general classes: those which occur where an act is
so inconsistent or irreconcilable with an existing prior act that only one of the two can remain
in force and those which occur when an act covers the whole subject of an earlier act and is
intended to be a substitute therefor. The validity of such a repeal is sustained on the ground
that the latest expression of the legislative will should prevail.[118]
In addition, Section 534(f) of the Code states that All general and special laws, acts, city
charters, decrees, executive orders, proclamations and administrative regulations, or part or

parts thereof which are inconsistent with any of the provisions of this Code are hereby
repealed or modified accordingly. Thus, submitting to petitioners interpretation that the
Revised Charter of Manila empowers the City Council to prohibit motels, that portion of the
Charter stating such must be considered repealed by the Code as it is at variance with the
latters 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 abovequoted Section. The Ordinance now vainly attempts to lump these establishments with
houses of ill-repute and expand the City Councils powers in the second and third clauses of
Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers. It is evident
that these establishments may only be regulated in their establishment, operation and
maintenance.
It is important to distinguish the punishable activities from the establishments
themselves. That these establishments are recognized legitimate enterprises can be gleaned
from another Section of the Code. Section 131 under the Title on Local Government Taxation
expressly mentioned proprietors or operators of massage clinics, sauna, Turkish and
Swedish baths, hotels, motels and lodging houses as among the contractors defined in
paragraph (h) thereof. The same Section also defined amusement as a pleasurable diversion

and entertainment, synonymous to relaxation, avocation, pastime or fun; and amusement

places to include theaters, cinemas, concert halls, circuses and other places of amusement
where one seeks admission to entertain oneself by seeing or viewing the show or
performances. Thus, it can be inferred that the Code considers these establishments as
legitimate enterprises and activities. It is well to recall the maxim reddendo singula
singulis which means that words in different parts of a statute must be referred to their
appropriate connection, giving to each in its place, its proper force and effect, and, if possible,
rendering none of them useless or superfluous, even if strict grammatical construction
demands otherwise. Likewise, where words under consideration appear in different sections
or are widely dispersed throughout an act the same principle applies.[120]
Not only does the Ordinance contravene the Code, it likewise runs counter to the
provisions of P.D. 499. As correctly argued by MTDC, the statute had already converted the
residential Ermita-Malate area into a commercial area. The decree allowed the establishment
and operation of all kinds of commercial establishments except warehouse or open storage
depot, dump or yard, motor repair shop, gasoline service station, light industry with any
machinery or funeral establishment. The rule is that for an ordinance to be valid and to have
force and effect, it must not only be within the powers of the council to enact but the same
must not be in conflict with or repugnant to the general law.[121] As succinctly illustrated
in Solicitor General v. Metropolitan Manila Authority:[122]
The requirement that the enactment must not violate existing law explains itself. Local political
subdivisions are able to legislate only by virtue of a valid delegation of legislative power from the
national legislature (except only that the power to create their own sources of revenue and to levy taxes
is conferred by the Constitution itself). They are mere agents vested with what is called the power of
subordinate legislation. As delegates of the Congress, the local government units cannot contravene but
must obey at all times the will of their principal. In the case before us, the enactment in question,
which are merely local in origin cannot prevail against the decree, which has the force and effect of a
statute.[123]
Petitioners contend that the Ordinance enjoys the presumption of validity. While this
may be the rule, it has already been held that although the presumption is always in favor of
the validity or reasonableness of the ordinance, such presumption must nevertheless be set
aside when the invalidity or unreasonableness appears on the face of the ordinance itself or
is established by proper evidence. The exercise of police power by the local government is
valid unless it contravenes the fundamental law of the land, or an act of the legislature, or
unless it is against public policy or is unreasonable, oppressive, partial, discriminating or in
derogation of a common right.[124]
Conclusion
All considered, the Ordinance invades fundamental personal and property rights and
impairs personal privileges. It is constitutionally infirm. The Ordinance contravenes statutes; it
is discriminatory and unreasonable in its operation; it is not sufficiently detailed and explicit
that abuses may attend the enforcement of its sanctions. And not to be forgotten, the City
Council under the Code had no power to enact the Ordinance and is therefore ultra vires, null
and void.
Concededly, the challenged Ordinance was enacted with the best of motives and
shares the concern of the public for the cleansing of the Ermita-Malate area of its social sins.
Police power legislation of such character deserves the full endorsement of the judiciary we
reiterate our support for it. But inspite of its virtuous aims, the enactment of

the Ordinance has no statutory or constitutional authority to stand on. Local legislative
bodies, in this case, the City Council, cannot prohibit the operation of the enumerated
establishments under Section 1 thereof or order their transfer or conversion without infringing
the constitutional guarantees of due process and equal protection of laws not even under the
guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial
Court declaring the Ordinance void is AFFIRMED. Costs against petitioners.
SO ORDERED.

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.

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 (P5,000.00)
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.

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.

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

[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

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

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:

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 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.24First, 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.

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

The requirement of standing is a core component of the judicial system derived directly from
the Constitution.27The 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

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.

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

We thus recognize that the petitioners have a right to assert the constitutional rights of their
clients to patronize their establishments for a "wash-rate" time frame.
III.
To students of jurisprudence, the facts of this case will recall to mind not only the recent City
of Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations
Association, Inc., v. Hon. City Mayor of Manila. 40Ermita-Malate concerned the City ordinance
requiring patrons to fill up a prescribed form stating personal information such as name,
gender, nationality, age, address and occupation before they could be admitted to a motel,
hotel or lodging house. This earlier ordinance was precisely enacted to minimize certain
practices deemed harmful to public morals. A purpose similar to the annulled ordinance
in City of Manila which sought a blanket ban on motels, inns and similar establishments in the
Ermita-Malate area. However, the constitutionality of the ordinance in Ermita-Malate was
sustained by the Court.
The common thread that runs through those decisions and the case at bar goes beyond the
singularity of the localities covered under the respective ordinances. All three ordinances
were enacted with a view of regulating public morals including particular illicit activity in
transient lodging establishments. This could be described as the middle case, wherein there
is no wholesale ban on motels and hotels but the services offered by these establishments
have been severely restricted. At its core, this is another case about the extent to which the
State can intrude into and regulate the lives of its citizens.
The test of a valid ordinance is well established. A long line of decisions including City of
Manila has held that for an ordinance to be valid, it must not only be within the corporate
powers of the local government unit to enact and pass according to the procedure prescribed
by law, it must also conform to the following substantive requirements: (1) must not
contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not
be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general
and consistent with public policy; and (6) must not be unreasonable.41

The Ordinance prohibits two specific and distinct business practices, namely wash rate
admissions and renting out a room more than twice a day. The ban is evidently sought to be
rooted in the police power as conferred on local government units by the Local Government
Code through such implements as the general welfare clause.
A.
Police power, while incapable of an exact definition, has been purposely veiled in general
terms to underscore its comprehensiveness to meet all exigencies and provide enough room
for an efficient and flexible response as the conditions warrant.42 Police power is based upon
the concept of necessity of the State and its corresponding right to protect itself and its
people.43 Police power has been used as justification for numerous and varied actions by the
State. These range from the regulation of dance halls,44 movie theaters,45 gas stations46 and
cockpits.47 The awesome scope of police power is best demonstrated by the fact that in its
hundred or so years of presence in our nations 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 coequal 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.

G.R. No. 89572 December 21, 1989

DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS) and DIRECTOR OF
CENTER FOR EDUCATIONAL MEASUREMENT, petitioners,
vs.
ROBERTO REY C. SAN DIEGO and JUDGE TERESITA DIZON-CAPULONG, in her
capacity as Presiding Judge of the Regional Trial Court of Valenzuela, Metro Manila,
Branch 172, respondents.
Ramon M. Guevara for private respondent.

CRUZ, J.:
The issue before us is mediocrity. The question is whether a person who has thrice failed the
National Medical Admission Test (NMAT) is entitled to take it again.
The petitioner contends he may not, under its rule thath) A student shall be allowed only three (3) chances to take the NMAT. After
three (3) successive failures, a student shall not be allowed to take the
NMAT for the fourth time.
The private respondent insists he can, on constitutional grounds.
But first the facts.
The private respondent is a graduate of the University of the East with a degree of Bachelor
of Science in Zoology. The petitioner claims that he took the NMAT three times and flunked it
as many times. 1 When he applied to take it again, the petitioner rejected his

application on the basis of the aforesaid rule. He then went to the Regional Trial
Court of Valenzuela, Metro Manila, to compel his admission to the test.
In his original petition for mandamus, he first invoked his constitutional rights to academic
freedom and quality education. By agreement of the parties, the private respondent was
allowed to take the NMAT scheduled on April 16, 1989, subject to the outcome of his
petition. 2 In an amended petition filed with leave of court, he squarely challenged the

constitutionality of MECS Order No. 12, Series of 1972, containing the above-cited
rule. The additional grounds raised were due process and equal protection.

After hearing, the respondent judge rendered a decision on July 4, 1989, declaring the
challenged order invalid and granting the petition. Judge Teresita Dizon-Capulong held that
the petitioner had been deprived of his right to pursue a medical education through an
arbitrary exercise of the police power. 3
We cannot sustain the respondent judge. Her decision must be reversed.
In Tablarin v. Gutierrez, 4 this Court upheld the constitutionality of the NMAT as a

measure intended to limit the admission to medical schools only to those who have
initially proved their competence and preparation for a medical education. Justice
Florentino P. Feliciano declared for a unanimous Court:
Perhaps the only issue that needs some consideration is whether there is
some reasonable relation between the prescribing of passing the NMAT as
a condition for admission to medical school on the one hand, and the
securing of the health and safety of the general community, on the other
hand. This question is perhaps most usefully approached by recalling that
the regulation of the pratice of medicine in all its branches has long been
recognized as a reasonable method of protecting the health and safety of
the public. That the power to regulate and control the practice of medicine
includes the power to regulate admission to the ranks of those authorized
to practice medicine, is also well recognized. Thus, legislation and
administrative regulations requiring those who wish to practice medicine
first to take and pass medical board examinations have long ago been
recognized as valid exercises of governmental power. Similarly, the
establishment of minimum medical educational requirements-i.e., the
completion of prescribed courses in a recognized medical school-for
admission to the medical profession, has also been sustained as a
legitimate exercise of the regulatory authority of the state. What we have
before us in the instant case is closely related: the regulation of access to
medical schools. MECS Order No. 52, s. 1985, as noted earlier, articulates
the rationale of regulation of this type: the improvement of the professional
and technical quality of the graduates of medical schools, by upgrading the
quality of those admitted to the student body of the medical schools. That
upgrading is sought by selectivity in the process of admission, selectivity
consisting, among other things, of limiting admission to those who exhibit in
the required degree the aptitude for medical studies and eventually for
medical practice. The need to maintain, and the difficulties of maintaining,
high standards in our professional schools in general, and medical schools
in particular, in the current state of our social and economic development,
are widely known.
We believe that the government is entitled to prescribe an admission test
like the NMAT as a means of achieving its stated objective of "upgrading
the selection of applicants into [our] medical schools" and of "improv[ing]

the quality of medical education in the country." Given the widespread use
today of such admission tests in, for instance, medical schools in the
United States of America (the Medical College Admission Test [MCAT] and
quite probably, in other countries with far more developed educational
resources than our own, and taking into account the failure or inability of
the petitioners to even attempt to prove otherwise, we are entitled to hold
that the NMAT is reasonably related to the securing of the ultimate end of
legislation and regulation in this area. That end, it is useful to recall, is the
protection of the public from the potentially deadly effects of incompetence
and ignorance in those who would undertake to treat our bodies and minds
for disease or trauma.
However, the respondent judge agreed with the petitioner that the said case was not
applicable. Her reason was that it upheld only the requirement for the admission test and said
nothing about the so-called "three-flunk rule."
We see no reason why the rationale in the Tablarin case cannot apply to the case at bar. The
issue raised in both cases is the academic preparation of the applicant. This may be gauged
at least initially by the admission test and, indeed with more reliability, by the three-flunk rule.
The latter cannot be regarded any less valid than the former in the regulation of the medical
profession.
There is no need to redefine here the police power of the State. Suffice it to repeat that the
power is validly exercised if (a) the interests of the public generally, as distinguished from
those of a particular class, require the interference of the State, and (b) the means employed
are reasonably necessary to the attainment of the object sought to be accomplished and not
unduly oppressive upon individuals. 5
In other words, the proper exercise of the police power requires the concurrence of a lawful
subject and a lawful method.
The subject of the challenged regulation is certainly within the ambit of the police power. It is
the right and indeed the responsibility of the State to insure that the medical profession is not
infiltrated by incompetents to whom patients may unwarily entrust their lives and health.
The method employed by the challenged regulation is not irrelevant to the purpose of the law
nor is it arbitrary or oppressive. The three-flunk rule is intended to insulate the medical
schools and ultimately the medical profession from the intrusion of those not qualified to be
doctors.
While every person is entitled to aspire to be a doctor, he does not have a constitutional right
to be a doctor. This is true of any other calling in which the public interest is involved; and the
closer the link, the longer the bridge to one's ambition. The State has the responsibility to
harness its human resources and to see to it that they are not dissipated or, no less worse,

not used at all. These resources must be applied in a manner that will best promote the
common good while also giving the individual a sense of satisfaction.
A person cannot insist on being a physician if he will be a menace to his patients. If one who
wants to be a lawyer may prove better as a plumber, he should be so advised and adviced.
Of course, he may not be forced to be a plumber, but on the other hand he may not force his
entry into the bar. By the same token, a student who has demonstrated promise as a pianist
cannot be shunted aside to take a course in nursing, however appropriate this career may be
for others.
The right to quality education invoked by the private respondent is not absolute. The
Constitution also provides that "every citizen has the right to choose a profession or course of
study, subject to fair, reasonable and equitable admission and academic requirements. 6
The private respondent must yield to the challenged rule and give way to those better
prepared. Where even those who have qualified may still not be accommodated in our
already crowded medical schools, there is all the more reason to bar those who, like him,
have been tested and found wanting.
The contention that the challenged rule violates the equal protection clause is not well-taken.
A law does not have to operate with equal force on all persons or things to be conformable to
Article III, Section 1 of the Constitution.
There can be no question that a substantial distinction exists between medical students and
other students who are not subjected to the NMAT and the three-flunk rule. The medical
profession directly affects the very lives of the people, unlike other careers which, for this
reason, do not require more vigilant regulation. The accountant, for example, while belonging
to an equally respectable profession, does not hold the same delicate responsibility as that of
the physician and so need not be similarly treated.
There would be unequal protection if some applicants who have passed the tests are
admitted and others who have also qualified are denied entrance. In other words, what the
equal protection requires is equality among equals.
The Court feels that it is not enough to simply invoke the right to quality education as a
guarantee of the Constitution: one must show that he is entitled to it because of his
preparation and promise. The private respondent has failed the NMAT five times. 7 While his

persistence is noteworthy, to say the least, it is certainly misplaced, like a hopeless

love.
No depreciation is intended or made against the private respondent. It is stressed that a
person who does not qualify in the NMAT is not an absolute incompetent unfit for any work or
occupation. The only inference is that he is a probably better, not for the medical profession,
but for another calling that has not excited his interest.

In the former, he may be a bungler or at least lackluster; in the latter, he is more likely to
succeed and may even be outstanding. It is for the appropriate calling that he is entitled to
quality education for the full harnessing of his potentials and the sharpening of his latent
talents toward what may even be a brilliant future.
We cannot have a society of square pegs in round holes, of dentists who should never have
left the farm and engineers who should have studied banking and teachers who could be
better as merchants.
It is time indeed that the State took decisive steps to regulate and enrich our system of
education by directing the student to the course for which he is best suited as determined by
initial tests and evaluations. Otherwise, we may be "swamped with mediocrity," in the words
of Justice Holmes, not because we are lacking in intelligence but because we are a nation of
misfits.
WHEREFORE, the petition is GRANTED. The decision of the respondent court dated
January 13, 1989, is REVERSED, with costs against the private respondent. It is so ordered.

CARLOS SUPERDRUG CORP., G.R. No. 166494

doing business under the name
and style Carlos Superdrug, Present:
ELSIE M. CANO, doing business
under the name and style Advance PUNO, C.J.,
Drug, Dr. SIMPLICIO L. YAP, JR., QUISUMBING,*
doing business under the name and YNARES-SANTIAGO,
style City Pharmacy, MELVIN S. SANDOVAL-GUTIERREZ,**
DELA SERNA, doing business under CARPIO,
the name and style Botica dela Serna, AUSTRIA-MARTINEZ,
and LEYTE SERV-WELL CORP., CORONA,
doing business under the name and CARPIO MORALES,
style Leyte Serv-Well Drugstore, AZCUNA,
Petitioners, TINGA,
CHICO-NAZARIO,
- versus - GARCIA,
VELASCO, JR., and
DEPARTMENT OF SOCIAL NACHURA, JJ.
WELFARE and DEVELOPMENT
(DSWD), DEPARTMENT OF Promulgated:
HEALTH (DOH), DEPARTMENT
OF FINANCE (DOF), DEPARTMENT June 29, 2007
OF JUSTICE (DOJ), and
DEPARTMENT OF INTERIOR and
LOCAL GOVERNMENT (DILG),
Respondents.
x ---------------------------------------------------------------------------------------- x

drugstores compliance with the law; promulgate the implementing rules and regulations for
the effective implementation of the law; and prosecute and revoke the licenses of erring
drugstore establishments.
The antecedents are as follows:
On February 26, 2004, R.A. No. 9257, amending R.A. No. 7432, [3] was signed into
law by President Gloria Macapagal-Arroyo and it became effective on March 21, 2004.
Section 4(a) of the Act states:
SEC. 4. Privileges for the Senior Citizens. The senior citizens shall be
entitled to the following:
(a) the grant of twenty percent (20%) discount from all
establishments relative to the utilization of services in hotels and similar
lodging establishments, restaurants and recreation centers, and purchase of
medicines in all establishments for the exclusive use or enjoyment of
senior citizens, including funeral and burial services for the death of senior
citizens;
...

DECISION
AZCUNA, J.:
This is a petition[1] for Prohibition with Prayer for Preliminary Injunction assailing
the constitutionality of Section 4(a) of Republic Act (R.A.) No. 9257, [2]otherwise known as

The establishment may claim the discounts granted under (a), (f),
(g) and (h) as tax deduction based on the net cost of the goods sold or
services rendered: Provided, That the cost of the discount shall be allowed
as deduction from gross income for the same taxable year that the discount
is granted. Provided, further, That the total amount of the claimed tax
deduction net of value added tax if applicable, shall be included in their
gross sales receipts for tax purposes and shall be subject to proper
documentation and to the provisions of the National Internal Revenue
Code, as amended.[4]

the Expanded Senior Citizens Act of 2003.

On May 28, 2004, the DSWD approved and adopted the Implementing Rules and
Petitioners are domestic corporations and proprietors operating drugstores in
the Philippines.
Public respondents, on the other hand, include the Department of Social Welfare and
Development (DSWD), the Department of Health (DOH), the Department of Finance
(DOF), the Department of Justice (DOJ), and the Department of Interior and Local
Government

(DILG)

which

have

been

specifically

tasked

to

monitor

the

Regulations of R.A. No. 9257, Rule VI, Article 8 of which states:

Article 8. Tax Deduction of Establishments. The establishment
may claim the discounts granted under Rule V, Section 4 Discounts for
Establishments;[5] Section 9, Medical and Dental Services in Private
Facilities[,][6] and Sections 10[7] and 11[8] Air, Sea and Land Transportation
as tax deduction based on the net cost of the goods sold or services
rendered. Provided, That the cost of the discount shall be allowed as
deduction from gross income for the same taxable year that the discount is
granted; Provided, further, That the total amount of the claimed tax

deduction net of value added tax if applicable, shall be included in their

gross sales receipts for tax purposes and shall be subject to proper
documentation and to the provisions of the National Internal Revenue
Code, as amended; Provided, finally, that the implementation of the tax
deduction shall be subject to the Revenue Regulations to be issued by the
Bureau of Internal Revenue (BIR) and approved by the Department of
Finance (DOF).[9]
On July 10, 2004, in reference to the query of the Drug Stores Association of the
Philippines (DSAP) concerning the meaning of a tax deduction under the Expanded Senior
Citizens Act, the DOF, through Director IV Ma. Lourdes B. Recente, clarified as follows:
1) The difference between the Tax Credit (under the Old Senior
Citizens Act) and Tax Deduction (under the Expanded Senior Citizens
Act).
1.1. The provision of Section 4 of R.A. No. 7432 (the
old Senior Citizens Act) grants twenty percent (20%) discount
from all establishments relative to the utilization of transportation
services, hotels and similar lodging establishment, restaurants and
recreation centers and purchase of medicines anywhere in the
country, the costs of which may be claimed by the private
establishments concerned as tax credit.

an amount equivalent to the marginal tax rate the said

establishment is liable to pay the government. This will be an
amount equivalent to 32% of the twenty percent (20%) discounts
so granted. The establishment shoulders the remaining portion of
the granted discounts.
It may be necessary to note that while the burden on
[the] government is slightly diminished in terms of its percentage
share on the discounts granted to senior citizens, the number of
potential establishments that may claim tax deductions, have
however, been broadened. Aside from the establishments that
may claim tax credits under the old law, more establishments
were added under the new law such as: establishments providing
medical and dental services, diagnostic and laboratory services,
including professional fees of attending doctors in all private
hospitals and medical facilities, operators of domestic air and sea
transport services, public railways and skyways and bus transport
services.
A simple illustration might help amplify the points
discussed above, as follows:
Tax Deduction Tax Credit

Effectively, a tax credit is a peso-for-peso deduction

from a taxpayers tax liability due to the government of the
amount of discounts such establishment has granted to a senior
citizen. The establishment recovers the full amount of discount
given to a senior citizen and hence, the government shoulders
100% of the discounts granted.

Gross Sales x x x x x x x x x x x x

It must be noted, however, that conceptually, a tax

credit scheme under the Philippine tax system, necessitates that
prior payments of taxes have been made and the taxpayer is
attempting to recover this tax payment from his/her income tax
due. The tax credit scheme under R.A. No. 7432 is, therefore,
inapplicable since no tax payments have previously occurred.

Other deductions: x x x x x x x x

1.2.
The provision under R.A. No. 9257, on the
other hand, provides that the establishment concerned may claim
the discounts under Section 4(a), (f), (g) and (h) as tax
deduction from gross income, based on the net cost of goods sold
or services rendered.
Under this scheme, the establishment concerned is
allowed to deduct from gross income, in computing for its tax
liability, the amount of discounts granted to senior citizens.
Effectively, the government loses in terms of foregone revenues

Less : Cost of goods sold x x x x x x x x x x

Net Sales x x x x x x x x x x x x
Less: Operating Expenses:
Tax Deduction on Discounts x x x x -Net Taxable Income x x x x x x x x x x
Tax Due x x x x x x
Less: Tax Credit -- ______x x
Net Tax Due -- x x
As shown above, under a tax deduction scheme, the tax
deduction on discounts was subtracted from Net Sales together with other
deductions which are considered as operating expenses before the Tax Due
was computed based on the Net Taxable Income. On the other hand, under
a tax credit scheme, the amount of discounts which is the tax credititem,
was deducted directly from the tax due amount.[10]

Meanwhile, on October 1, 2004, Administrative Order (A.O.) No. 171 or

Examining petitioners arguments, it is apparent that what petitioners are ultimately

the Policies and Guidelines to Implement the Relevant Provisions of Republic Act 9257,

questioning is the validity of the tax deduction scheme as a reimbursement mechanism for

otherwise known as the Expanded Senior Citizens Act of 2003

[11]

was issued by the DOH,

the twenty percent (20%) discount that they extend to senior citizens.

providing the grant of twenty percent (20%) discount in the purchase of unbranded generic

Based on the afore-stated DOF Opinion, the tax deduction scheme does not fully

medicines from all establishments dispensing medicines for the exclusive use of the senior

reimburse petitioners for the discount privilege accorded to senior citizens. This is because

citizens.

the discount is treated as a deduction, a tax-deductible expense that is subtracted from the

On November 12, 2004, the DOH issued Administrative Order No 177

[12]

amending A.O.

gross income and results in a lower taxable income. Stated otherwise, it is an amount that is

No. 171. Under A.O. No. 177, the twenty percent discount shall not be limited to the

allowed by law[15] to reduce the income prior to the application of the tax rate to compute the

purchase of unbranded generic medicines only, but shall extend to both prescription and

amount of tax which is due.[16] Being a tax deduction, the discount does not reduce taxes

non-prescription medicines whether branded or generic. Thus, it stated that [t]he grant of

owed on a peso for peso basis but merely offers a fractional reduction in taxes owed.

twenty percent (20%) discount shall be provided in the purchase of medicines from all
establishments dispensing medicines for the exclusive use of the senior citizens.

Theoretically, the treatment of the discount as a deduction reduces the net income
of the private establishments concerned. The discounts given would have entered the coffers

Petitioners assail the constitutionality of Section 4(a) of the Expanded Senior Citizens Act

and formed part of the gross sales of the private establishments, were it not for R.A. No.

based on the following grounds:[13]

9257.

1)

2)

3)

The law is confiscatory because it infringes Art. III, Sec. 9 of

the Constitution which provides that private property shall not be
taken for public use without just compensation;
It violates the equal protection clause (Art. III, Sec. 1)
enshrined in our Constitution which states that no person shall be
deprived of life, liberty or property without due process of law,
nor shall any person be denied of the equal protection of the laws;
and
The 20% discount on medicines violates the constitutional
guarantee in Article XIII, Section 11 that makes essential goods,
health and other social services available to all people at
affordable cost.[14]

The permanent reduction in their total revenues is a forced subsidy corresponding

to the taking of private property for public use or benefit. [17] This constitutes compensable
taking for which petitioners would ordinarily become entitled to a just compensation.
Just compensation is defined as the full and fair equivalent of the property taken
from its owner by the expropriator. The measure is not the takers gain but the owners loss.
The word just is used to intensify the meaning of the word compensation, and to convey the
idea that the equivalent to be rendered for the property to be taken shall be real, substantial,
full and ample.[18]
A tax deduction does not offer full reimbursement of the senior citizen discount. As

Petitioners assert that Section 4(a) of the law is unconstitutional because it constitutes

such, it would not meet the definition of just compensation.[19]

deprivation of private property. Compelling drugstore owners and establishments to grant

the discount will result in a loss of profit

Having said that, this raises the question of whether the State, in promoting the
health and welfare of a special group of citizens, can impose upon private establishments the

and capital because 1) drugstores impose a mark-up of only 5% to 10% on branded

burden of partly subsidizing a government program.

medicines; and 2) the law failed to provide a scheme whereby drugstores will be justly
compensated for the discount.

The Court believes so.

The Senior Citizens Act was enacted primarily to maximize the contribution of

but has been purposely veiled in general terms to underscore its comprehensiveness to meet

senior citizens to nation-building, and to grant benefits and privileges to them for their

all exigencies and provide enough room for an efficient and flexible response to conditions

improvement and well-being as the State considers them an integral part of our society.

[20]

and circumstances, thus assuring the greatest benefits. [22] Accordingly, it has been described
as the most essential, insistent and the least limitable of powers, extending as it does to all

The priority given to senior citizens finds its basis in the Constitution as set forth in
the law itself. Thus, the Act provides:
SEC. 2. Republic Act No. 7432 is hereby amended to read as
follows:

the great public needs.[23] It is [t]he power vested in the legislature by the constitution to
make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and
ordinances, either with penalties or without, not repugnant to the constitution, as they shall
judge to be for the good and welfare of the commonwealth, and of the subjects of the same.
[24]

SECTION 1. Declaration of Policies and Objectives. Pursuant to

Article XV, Section 4 of the Constitution, it is the duty of the family to
take care of its elderly members while the State may design programs of
social security for them. In addition to this, Section 10 in the Declaration
of Principles and State Policies provides: The State shall provide social
justice in all phases of national development. Further, Article XIII, Section
11, provides: The State shall adopt an integrated and comprehensive
approach to health development which shall endeavor to make essential
goods, health and other social services available to all the people at
affordable cost. There shall be priority for the needs of the underprivileged
sick, elderly, disabled, women and children. Consonant with these
constitutional principles the following are the declared policies of this Act:
...
(f) To recognize the important role of the private sector in the
improvement of the welfare of senior citizens and to actively seek their
partnership.[21]

For this reason, when the conditions so demand as determined by the legislature,
property rights must bow to the primacy of police power because property rights, though
sheltered by due process, must yield to general welfare.[25]
Police power as an attribute to promote the common good would be diluted
considerably if on the mere plea of petitioners that they will suffer loss of earnings and
capital, the questioned provision is invalidated. Moreover, in the absence of evidence
demonstrating the alleged confiscatory effect of the provision in question, there is no basis
for its nullification in view of the presumption of validity which every law has in its favor.[26]
Given these, it is incorrect for petitioners to insist that the grant of the senior citizen
discount is unduly oppressive to their business, because petitioners have not taken time to
calculate correctly and come up with a financial report, so that they have not been able to
show properly whether or not the tax deduction scheme really works greatly to their

To implement the above policy, the law grants a twenty percent discount to senior citizens

disadvantage.[27]

for medical and dental services, and diagnostic and laboratory fees; admission fees charged
by theaters, concert halls, circuses, carnivals, and other similar places of culture, leisure and

In treating the discount as a tax deduction, petitioners insist that they will incur

amusement; fares for domestic land, air and sea travel; utilization of services in hotels and

losses because, referring to the DOF Opinion, for every P1.00 senior citizen discount that

similar lodging establishments, restaurants and recreation centers; and purchases of

petitioners would give, P0.68 will be shouldered by them as only P0.32 will be refunded by

medicines for the exclusive use or enjoyment of senior citizens. As a form of reimbursement,

the government by way of a tax deduction.

the law provides that business establishments extending the twenty percent discount to
senior citizens may claim the discount as a tax deduction.

To illustrate this point, petitioner Carlos Super Drug cited the anti-hypertensive
maintenance drug Norvasc as an example. According to the latter, it acquires Norvasc from

The law is a legitimate exercise of police power which, similar to the power of eminent

the distributors at P37.57 per tablet, and retails it at P39.60 (or at a margin of 5%). If it

domain, has general welfare for its object. Police power is not capable of an exact definition,

grants a 20% discount to senior citizens or an amount equivalent to P7.92, then it would

have to sell Norvasc at P31.68 which translates to a loss from capital of P5.89 per tablet.

The Court is not oblivious of the retail side of the pharmaceutical industry and the

Even if the government will allow a tax deduction, only P2.53 per tablet will be refunded

competitive pricing component of the business. While the Constitution protects property

and not the full amount of the discount which is P7.92. In short, only 32% of the 20%

rights, petitioners must accept the realities of business and the State, in the exercise of police

discount will be reimbursed to the drugstores.

[28]

power, can intervene in the operations of a business which may result in an impairment of
property rights in the process.

Petitioners computation is flawed. For purposes of reimbursement, the law states

that the cost of the discount shall be deducted from gross income, [29] the amount of income

Moreover, the right to property has a social dimension. While Article XIII of the

derived from all sources before deducting allowable expenses, which will result in net

Constitution provides the precept for the protection of property, various laws and

income. Here, petitioners tried to show a loss on a per transaction basis, which should not be

jurisprudence, particularly on agrarian reform and the regulation of contracts and public

the case. An income statement, showing an accounting of petitioners sales, expenses, and net

utilities, continuously serve as a reminder that the right to property can be relinquished upon

profit (or loss) for a given period could have accurately reflected the effect of the discount

the command of the State for the promotion of public good.[30]

on their income. Absent any financial statement, petitioners cannot substantiate their claim
that they will be operating at a loss should they give the discount. In addition, the

Undeniably, the success of the senior citizens program rests largely on the support

computation was erroneously based on the assumption that their customers consisted wholly

imparted by petitioners and the other private establishments concerned. This being the case,

of senior citizens. Lastly, the 32% tax rate is to be imposed on income, not on the amount of

the means employed in invoking the active participation of the private sector, in order to

the discount.

achieve the purpose or objective of the law, is reasonably and directly related. Without
sufficient proof that Section 4(a) of R.A. No. 9257 is arbitrary, and that the continued

Furthermore, it is unfair for petitioners to criticize the law because they cannot raise
the prices of their medicines given the cutthroat nature of the players in the industry. It is a
business decision on the part of petitioners to peg the mark-up at 5%. Selling the medicines

implementation of the same would be unconscionably detrimental to petitioners, the Court

will refrain from quashing a legislative act.[31]
WHEREFORE, the petition is DISMISSED for lack of merit.

below acquisition cost, as alleged by petitioners, is merely a result of this decision. Inasmuch
as pricing is a property right, petitioners cannot reproach the law for being oppressive,

No costs.

simply because they cannot afford to raise their prices for fear of losing their customers to
competition.

SO ORDERED.