LOCGOV THE MUNICIPALITY 4.
4.2 After trial on the merit, to render judgment declaring petitioner's detail at respondent's office per Annex
G.R. No. 108232 August 23, 1993
ZONSAYDA L. ALINSUG, petitioner,
vs.
REGIONAL TRIAL COURT, Branch 58, San Carlos City, Negros Occidental, Presided by Hon.
Rolindo D. Beldia, Jr.; ROLANDO P. PONSICA as Municipal Mayor of Escalante, Negros
Occidental; MUNICIPALITY OF ESCALANTE, NEGROS OCCIDENTAL, and PATRICIO A. ALVAREZ
as Municipal Treasurer of Escalante, Negros Occidental, respondents.
RESOLUTION
VITUG, J.:
The petitioner, Zonsayda L. Alinsug, had been a regular employee of the municipal government of Escalante,
Negros Occidental, when she received a permanent appointment as Clerk III in the office of the Municipal
Planning and Development Coordinator of the same municipality. On 10 June 1992, she received an order from
the newly proclaimed mayor, Rolando P. Ponsica, detailing her to the Office of the Mayor. In compliance with
the order, she reported to said office the following day.
On 19 June 1992, Zonsayda absented herself from work allegedly to attend to family matters. She had asked
permission from the personnel officer but not from the mayor. On 23 June 1992, Mayor Ponsica issued Office
Order No. 31, suspending Zonsayda for one month and one day commencing on 24 June 1992 for "a simple
misconduct . . . which can also be categorized as an act of insubordination." The order also stated that the
suspension "carries with it forfeiture of . . . benefits such as . . . salary and PERA and leave credits during the
duration of its effectivity."
Forthwith, Zonsayda filed with the Regional Trial Court of Negros Occidental, in San Carlos City, a petition,
dated 07 July 1992, for "injunction with damages and prayer for temporary restraining order and preliminary
injunction" against Mayor Ponsica and the municipal treasurer. 1 The petitioner alleged that since her family
supported Mayor Ponsica's rival in the 11 May 1992 elections, her suspension was an act of "political vendetta".
Further alleging that said respondents' acts were "malicious, illegal, unwarranted, wrongful and condemnable",
petitioner prayed for the following reliefs:
WHEREFORE, premises considered, it is respectfully prayed to this Honorable Court
4.1 That upon the filing of this petition a temporary restraining order be immediately issued directing
respondents mayor and municipality to cease and desist from continuing with the suspension, and indefinite
detail of petitioner at his office, and, including the respondent treasurer to refrain from forfeiting and not
paying her salary for the period from June 24 to July 23, 1992, and in the meantime to return petitioner to
her position as Clerk III in the office of the Municipal Planning and Development Coordinator; to restrain
respondents mayor and municipality also from persecuting, oppressing, harassing and humiliating petitioner
as civil service employee of the municipality under the respondent mayor, and also restraining them from
doing acts and things or employing tactics, schemes or maneuvers that would make it hard or effect a
difficulty in petitioner's doing of her works and/or in the performance of the official function of her position
entitled to the emoluments thereof, until further orders from the Honorable Court; and after notice and
hearing to issue the corresponding writ of preliminary injunction;
"C" and suspension per Annex "D", null and void, and making the injunction permanent; and
4.3 Adjudging the respondents mayor and municipality solidarily to pay petitioner the amount of P30,000.00
for moral damages; P10,000.00 plus P500.00 per court appearance of petitioner's counsel for attorney's fee,
and P3,000.00 for litigation expenses, all in concept of actual and compensatory damages; P20,000.00 as
exemplary damages; and to pay the costs of this suit.
Further, petitioner respectfully prays for such other proper reliefs and remedies just and appropriate in the
premises. 2
Mayor Ponsica and the municipal treasurer filed an answer to the petition, through private practitioner Samuel
SM Lezama, alleging that the petitioner had not exhausted administrative remedies and that her suspension
was in accordance with law. They filed a counterclaim for moral damages in the amount of P200,000.00,
exemplary damages for P50,000.00, and attorney's fees of P30,000.00, plus appearance fee of P500.00.
The foregoing elicited a motion from the petitioner, praying that the answer be disregarded and expunged from
the record, and that the respondents be all declared in default on the ground that since the respondents were
sued in their official capacities, "not including their private capacities," they should have been represented by
either the municipal legal officer or the provincial legal officer or prosecutor as provided for by Sec. 481 (b) [i]
and [3] of the Local Government Code. It also cited Sec. 1 of Rep. Act No. 10 and Art. 177 of the Revised Penal
Code which penalizes usurpation of public authority.
The respondents opposed the motion. Manifesting that the municipality of Escalante has no legal officer, they
asserted that both the Local Government Code and the Administrative Code of 1987 do not have any provision
"relative to the duty of any provincial legal officer or prosecutor to represent a municipality or its officials in
suits filed against them by an employee or a private individual." They contended that it was "unnecessary to
provide such a provision because there (exist) administrative and judicial rulings sustaining the validity of the
employment of a private counsel by municipal officials. Moreover, since the petitioner prayed for the award of
moral damages," on the strength of this Court's ruling in Albuera v. Torrens,3 their hiring of a private counsel
was justified.
On 28 August 1992, Assistant Provincial Prosecutor Daniel M. Villaflor entered his appearance as "counsel for
Rolando P. Ponsica and Patricio A. Alvarez in their official capacities."
With the filing of said notice at appearance, on 08 September 1992, the lower court issued an Order, denying
petitioners motion to declare the respondents in default and motion to expunge from the record respondents'
answer.
Acting on the motion for reconsideration filed by the petitioner, the lower court issued the Order of 16 November
1992, denying said motion on the thesis that since the appointment of a legal officer was optional on the part
of the municipal government (Art. 481, third paragraph, Local Government Code) and the municipality of
Escalante had not, in fact, designated any such legal officer, petitioner's move to declare respondents in default
"for having retained a private counsel" was not thereby legally sustainable.
Hence, the instant petition, which although called a "petition for review on certiorari" in its first paragraph, shall
be treated as a special civil action of certiorari for purposes of resolving the issues of: (a) whether or not a
private counsel may represent municipal officials sued in their official capacities, and (b) whether or not
respondents had been in default on account of their having filed their answer through a private counsel.
Sec. 443 (b) of the Local Government Code (Republic Act No. 7160), which took effect on 01 January
1992,4provides that, in addition to the officials enumerated in the first paragraph thereof, the
mayor may appoint, among other officials enumerated therein, a municipal legal officer. Section 481, Article 11
of Title V of the Code which provides for the appointment of local officials common to all municipalities, cities
and provinces, states that "(t)he appointment of a legal officer shall be mandatory for the provincial and city
governments and optional for the municipal government." The same section specifies the functions of the legal
officer, and one of them being that he shall:
(i) Represent the local government unit in all civil actions and special proceedings wherein the local
government unit or any official thereof, in his official capacity, is a party: Provided, that in actions or
proceedings where a component city or municipality is a party adverse to the provincial government or to
another component city or municipality, a special legal officer may be employed to represent the adverse
party;
Indeed, it appears that the law allows a private counsel to be hired by a municipality only when the municipality
is an adverse party in a case involving the provincial government or another municipality or city within the
province. This provision has its apparent origin in the ruling in De Guia v. The Auditor General5 where the Court
held that the municipality's authority to employ a private attorney is expressly limited only to situations where
the provincial fiscal would be disqualified to serve and represent it. With Sec. 1683 of the old Administrative
Code6 as legal basis, the Court therein cited Enriquez, Sr. v. Gimenez7 which enumerated instances when the
provincial fiscal is disqualified to represent in court a particular municipality; if and when original jurisdiction of
case involving the municipality is vested in the Supreme Court, when the municipality is a party adverse to the
provincial government or to some other municipality in the same province, and when, in a case involving the
municipality, he, or his wife, or child, is pecuniarily involved, as heir legatee, creditor or otherwise. 8
Thereafter, in Ramos v. Court of Appeals,9 the Court ruled that a municipality may not be represented by a
private law firm which had volunteered its services gratis, in collaboration with the municipal attorney and the
fiscal, as such representation was violative Sec. 1683 of the old Administrative Code. This strict coherence to
the letter of the law appears to have been dictated by the fact that "the municipality should not be burdened
with expenses of hiring a private lawyer" and that "the interests of the municipality would be best protected if
a government lawyer handles its litigations."
But would these proscriptions include public officials? Not necessarily. It can happen that a government official,
ostensibly acting in his official capacity and sued in that capacity, is later held to have exceeded his authority.
On the one hand, his defense would have then been underwritten by the people's money which ordinarily
should have been his personal expense. On the other hand, personal liability can attach to him without,
however, his having had the benefit of assistance of a counsel of his own choice. In Correa v. CFI of
Bulacan, 10 the Court held that in the discharge of governmental functions, "municipal corporations are
responsible for the acts of its officers, except if and when, the only to the extent that, they have acted by
authority of the law, and in conformity with the requirements thereof."
In such instance, this Court has sanctioned that representation by private counsel. In one case, We held that
where rigid adherence to the law on representation of local officials in court actions could deprive a party of
his right to redress for a valid grievance, the hiring of a private counsel would be proper. 11 And, in Albuera v.
Torres, 12 this Court also said that a provincial governor sued in his official capacity may engage the services
of private counsel when "the complaint contains other allegations and a prayer for moral damages, which, if
due from the defendants, must be satisfied by them in their private capacity."
We might also quote the pronouncement of the Court in Urbano v. Chavez: 13
There is likewise another reason . . . why the Office of the Solicitor General cannot represent an accused
in a criminal case. Inasmuch as the State can speak and act only by law, whatever it does say and do must
be lawful, and that which is unlawful is not the word or deed of the State, but is the mere wrong or trespass
of those individual persons who falsely speak and act in its name. Therefore, the accused public official
should not expect the State, through the Office of the Solicitor General, to defend him for a wrongful act
which cannot be attributed to the State itself. In the same light, a public official who is sued in a criminal
case is actually sued in his personal capacity inasmuch as his principal, the State, can never be the author
of a wrongful act, much less commit a crime.
Urbano v. Chavez confronted the issue of whether the Office of the Solicitor General may represent its own
Solicitor General in the preliminary investigation of a criminal action, or in a civil action for damages, against
him.
The key then to resolving the issue of whether a local government official may secure the services of private
counsel, in an action filed against him in his official capacity, lies on the nature of the action and the relief
that is sought.
While the petition below was filed against respondents as public officials, its allegations were also aimed at
questioning certain acts that can well bring the case beyond the mere confines of official functions; thus
2.12 These actuations of the respondent mayor in detailing petitioner to his office and eventually
suspending her from work, particularly the latter are no doubt respondent mayor's political vendetta of
petitioner, a vengeance unleased on her for her children's and family's not going with and voting for him
in the May 11, 1992 election and instead supporting the candidacy of their relative-candidate (Mr.
Barcelona) in said election, who was his greated (sic) worry at that time.
2.13 The aforesaid acts of respondent mayor are clearly, apparently and obviously a political harassment
and persecution, appreasive (sic), acts of vindictiveness, a grave abuse of executive discretion, despotic,
unjust, unwarranted, condemnable and actionable; the indefinite detail order and, especially the
suspension, were not done in good faith, not for a valid cause, and done without giving petitioner
opportunity to be heard, hence, null and void for being violative of petitioner's legal and constitutional right
to due process. . . . . 14
The petition then went on to claim moral and exemplary damages, as well as litigation expenses, as shown by
its prayer.
Moral damages cannot generally be awarded unless they are the proximate result of a wrongful act or omission.
Exemplary damages, on the other hand, are not awarded if the defendant had not acted in a wanton, oppressive
or malevolent manner nor in the absence of gross or reckless negligence. 15 A public official, who in the
performance of his duty acts in such fashion, does so in excess of authority, and his actions would be ultra
vires 16 that can thereby result in an incurrence of personal liability.
All the foregoing considered, We hold that the respondents were not improperly represented by a private
counsel, whose legal fees shall be for their own account.
ACCORDINGLY, the instant petition is hereby DISMISSED. The lower court is directed to proceed with dispatch in the
resolution of Special Civil Action No. RTC-371.
SO ORDERED.
LOCGOV THE CITY
G.R. No. L-55230 November 8, 1988
HON. RICHARD J. GORDON, in his capacity as City Mayor of Olongapo, petitioner,
vs.
JUDGE REGINO T. VERIDIANO II and Spouses EDUARDO and ROSALINDA YAMBAO, respondents.
CRUZ, J.:
The issue before the Court is the conflict between the Food and Drug Administration and the mayor of Olongapo City
over the power to grant and revoke licenses for the operation of drug stores in the said city. While conceding that the
FDA possesses such power, the mayor claims he may nevertheless, in the exercise of his own power, prevent the
operation of drug stores previously permitted by the former.
There are two drug stores involved in this dispute, to wit, the San Sebastian Drug Store and the Olongapo City Drug
Store, both owned by private respondent Rosalinda Yambao. 1 They are located a few meters from each other in the
same building on Hospital Road, Olongapo City. 2 They were covered by Mayor's Permits Nos. 1954 and 1955,
respectively, issued for the year 1980, 3 and licenses to operate issued by the FDA for the same year. 4
This case arose when on March 21, 1980, at about 5:00 o'clock in the afternoon, a joint team composed of agents
from the FDA and narcotics agents from the Philippine Constabulary conducted a "test buy" at San Sebastian Drug
Store and was sold 200 tablets of Valium 10 mg. worth P410.00 without a doctor's prescription.. 5
A report on the operation was submitted to the petitioner, as mayor of Olongapo City, on April 9, 1980. 6 On April
17, 1980, he issued a letter summarily revoking Mayor's Permit No. 1954, effective April 18, 1980, "for rampant
violation of R.A. 5921, otherwise known as the Pharmacy Law and R.A. 6425 or the Dangerous Drugs Act of
1972." 7 Later, when the petitioner went to Singapore, Vice-Mayor Alfredo T. de Perio, Jr. caused the posting of a
signboard at the San Sebastian Drug Store announcing its permanent closure. 8
Acting on the same investigation report of the "test-buy," and after hearing, FDA Administrator Arsenio Regala, on
April 25, 1980, directed the closure of the drug store for three days and its payment of a P100.00 fine for violation of
R.A. No. 3720. He also issued a stern warning to Yambao against a repetition of the infraction. 9 On April 29, 1980,
the FDA lifted its closure order after noting that the penalties imposed had already been discharged and allowed the
drug store to resume operations. 10
On April 30, 1980, Yambao, through her counsel, wrote a letter to the petitioner seeking reconsideration of the revoca
tion of Mayor's Permit No. 1954. 11 On May 7, 1980, having received no reply, she and her husband filed with the
Regional Trial Court of Olongapo City a complaint for mandamus and damages, with a prayer for a writ of preliminary
injunction, against the petitioner and Vice-Mayor de Perio. 12
On the same date, Yambao requested permission from the FDA to exchange the locations of the San Sebastian Drug
Store and the Olongapo City Drug Store for reasons of "business preference." 13
The request was granted. 14 But when informed of this action, the petitioner, in a letter to the private respondent
dated May 13, 1980, disapproved the transfers and suspended Mayor's Permit No. 1955 for the Olongapo City Drug
Store. 15
The Yambaos then filed on May 15, 1980, a supplemental complaint questioning the said suspension and praying for
the issuance of a preliminary writ of prohibitory injunction. 16 On the same day, the respondent judge issued an
order directing the maintenance of the status quo with respect to the Olongapo City Drug Store pending resolution of
the issues. 17
On May 21, 1980, the petitioner wrote the FDA requesting reconsideration of its order of April 29, 1980, allowing
resumption of the operation of the San Sebastian Drug Store. 18 The request was denied by the FDA in its reply
dated May 27, 1980. 19
A motion for reconsideration of the status quo order had earlier been filed on May 1, 1980 by the petitioner. After a
joint hearing and an exchange of memoranda thereon, the respondent judge issued an order on July 16, 1980, 20 the
dispositive portion of which read as follows:
WHEREFORE, the defendants' motion for reconsideration of the status quo order dated May 15, 1980, is hereby
DENIED and the letter of the defendant city mayor dated April 17, 1980, for the revocation of Mayor's Permit No.
1954 for the San Sebastian Drug Store is declared null and void.
Accordingly, a writ of preliminary prohibitory injunction is heretofore issued enjoining defendants from doing acts
directed towards the closure of the San Sebastian Drug Store and the suspension of the Olongapo City Drug
Store both situated at Hospital Road, Olongapo City. Further, the signboard posted at San Sebastian Drug Store
by the defendants is ordered removed in order that the said drug store will resume its normal business operation.
The hearing of the main petition for damages is set on August 14, 1980, at 1:30 o'clock in the afternoon.
The petitioner's motion for reconsideration of the above stated order was denied in an order dated September 4,
1980. 21 The petitioner thereupon came to this Court in this petition for certiorari and prohibition with preliminary,
injunction, to challenge the aforesaid orders.
We issued a temporary restraining order against the respondent judge on October 2 7, 1980, 22 but lifted it on
December 10, 1980, for failure of the petitioner to file his comment on the private respondents' motion to lift the said
order and/or for issuance of a counter restraining order. 23
First, let us compare the bases of the powers and functions respectively claimed by the FDA and the petitioner as
mayor of Olongapo City.
The task of drug inspection was originally lodged with the Board of Pharmaceutical Examiners pursuant to Act 2762,
as amended by Act 4162. By virtue of Executive Order No. 392 dated January 1, 1951 (mandating reorganization of
various departments and agencies), this was assumed by the Department of Health and exercised through an office
in the Bureau of Health known as the Drug Inspection Section. This section was empowered "to authorize the opening
of pharmacies, drug stores and dispensaries, and similar establishments after inspection by persons authorized by
law."
The Food and Drug Administration was created under R.A. No. 3720 (otherwise known as the Food, Drug and Cosmetic
Act), approved on June 22, 1963, and vested with all drug inspection functions in line with "the policy of the State to
insure safe and good quality supply of food, drug and cosmetics, and to regulate the production, sale and traffic of
the same to protect the health of the people." Section 5 of this Act specifically empowers it:
(e) to issue certificates of compliance with technical requirements to serve as basis for the issuance of license
and spotcheck for compliance with regulations regarding operation of food, drug and cosmetic manufacturers
and establishments.
For a more effective exercise of this function, the Department of Health issued on March 5, 1968, Administrative Order
No. 60, series of 1968, laying down the requirements for the application to be filed with the FDA for authorization to
operate or establish a drug establishment. The order provides that upon approval of the application, the FDA shall
issue to the owner or administrator of the drug store or similar establishment a "License to Operate" which "shall be
renewed within the first 3 months of each year upon payment of the required fees." This license contains the following
reservation:
However, should during the period of issue, a violation of any provisions of the Food, Drug and Cosmetic Act
and/or the regulations issued thereunder be committed, this License shall be subject to suspension or revocation.
When the drug addiction problem continued to aggravate, P.D. No. 280 was promulgated on August 27, 1973, to give
more teeth to the powers of the FDA, thus:
Section 1. Any provision of law to the contrary notwithstanding, the Food and Drug Administrator is hereby
authorized to order the closure, or suspend or revoke the license of any drug establishment which after
administrative investigation is found guilty of selling or dispensing drugs medicines and other similar substances
in violation of the Food, Drug and Cosmetic Act, and Dangerous Drugs Act of 1972, or other laws regulating the
sale or dispensation of drugs, or rules and regulations issued pursuant thereto.
Sec. 2. The administrative investigation shall be summary in character. The owner of the drug store shall be
given an opportunity to be heard. (P.D. 280, emphasis supplied.)
For his part, the petitioner, traces his authority to the charter of Olongapo City, R.A. No. 4645, which inter
alia empowers the city mayor under Section 10 thereof:
k. to grant or refuse municipal licenses to operate or permits of all classes and to revoke the same for violation
of the conditions upon which they were granted, or if acts prohibited by law or city ordinances are being
committed under protection of such licenses or in the premises in which the business for which the same have
been granted is carried on, or for any other good reason of general interest.
The charter also provides, in connection with the powers of the city health officer, that:
Sec. 6 (k). He and his representatives shall have the power to arrest violators of health laws, ordinances, rules
and regulations and to recommend the revocation or suspension of the permits of the different establishments
to the City Mayor for violation of health laws, ordinances, rules and regulations. (Emphasis supplied.)
An application to establish a drug store in Olongapo City must be filed with the Office of the Mayor and must show
that the applicant has complied with the existing ordinances on health and sanitation, location or zoning, fire or
building, and other local requirements. If the application is approved, the applicant is granted what is denominated a
"Mayor's Permit" providing inter alia that it "is valid only at the place stated above and until (date), unless sooner
revoked for cause." 24
Courts of justice, when confronted with apparently conflicting statutes, should endeavor to reconcile the same instead
of declaring outright the invalidity of one as against the other. Such alacrity should be avoided. The wise policy is for
the judge to harmonize them if this is possible, bearing in mind that they are equally the handiwork of the same
legislature, and so give effect to both while at the same time also according due respect to a coordinate department
of the government. It is this policy the Court will apply in arriving at the interpretation of the laws above-cited and
the conclusions that should follow therefrom.
A study of the said laws will show that the authorization to operate issued by the FDA is a condition precedent to the
grant of a mayor's permit to the drug store seeking to operate within the limits of the city. This requirement is
imperative. The power to determine if the opening of the drug store is conformable to the national policy and the
laws on the regulation of drug sales belongs to the FDA. Hence, a permit issued by the mayor to a drug store not
previously cleared with and licensed by the said agency will be a nullity.
This is not to say, however, that the issuance of the mayor's permit is mandatory once it is shown that the FDA has
licensed the operation of the applicant drug store. This is not a necessary consequence. For while it may appear that
the applicant has complied with the pertinent national laws and policies, this fact alone will not signify compliance
with the particular conditions laid down by the local authorities like zoning, building, health, sanitation, and safety
regulations, and other municipal ordinances enacted under the general welfare clause. This compliance still has to be
ascertained by the mayor if the permit is to be issued by his office. Should he find that the local requirements have
not been observed, the mayor must then, in the exercise of his own authority under the charter, refuse to grant the
permit sought.
The power to approve a license includes by implication,. even if not expressly granted, the power to revoke it. By
extension, the power to revoke is limited by the authority to grant the license, from which it is derived in the first
place. Thus, if the FDA grants a license upon its finding that the applicant drug store has complied with the
requirements of the general laws and the implementing administrative rules and regulations, it is only for their violation
that the FDA may revoke the said license. By the same token, having granted the permit upon his ascertainment that
the conditions thereof as applied particularly to Olongapo City have been complied with, it is only for the violation of
such conditions that the mayor may revoke the said permit.
Conversely, the mayor may not revoke his own permit on the ground that the compliance with the conditions laid
down and found satisfactory by the FDA when it issued its license is in his own view not acceptable. This very same
principle also operates on the FDA. The FDA may not revoke its license on the ground that the conditions laid down
in the mayor's permit have been violated notwithstanding that no such finding has been made by the mayor.
In the present case, the closure of the San Sebastian Drug Store was ordered by the FDA for violation of its own
conditions, which it certainly had the primary power to enforce. By revoking the mayor's permit on the same ground
for which the San Sebastian Drug Store had already been penalized by the FDA, the mayor was in effect reversing
the derision of the latter on a matter that came under its jurisdiction. As the infraction involved the pharmacy and
drug laws which the FDA had the direct responsibility to execute, the mayor had no authority to interpose his own
findings on the matter and substitute them for the decision already made by the FDA.
It would have been different if the offense condoned by the FDA was a violation of, say, a city ordinance requiring
buildings to be provided with safety devices or equipment, like fire extinguishers. The city executive may ignore such
condonation and revoke the mayor's permit just the same. In this situation, he would be acting properly because the
enforcement of the city ordinance is his own prerogative. In the present case, however, the condition allegedly violated
related to a national law, not to a matter of merely local concern, and so came under the 'jurisdiction of the FDA.
Settled is the rule that the factual findings of administrative authorities are accorded great respect because of their
acknowledged expertise in the fields of specialization to which they are assigned. 25 Even the courts of justice,
including this Court, are concluded by such findings in the absence of a clear showing of a grave abuse of discretion,
which is not present in the case at bar. For all his experience in the enforcement of city ordinances, the petitioner
cannot claim the superior aptitudes of the FDA in the enforcement of the pharmacy and drug addiction laws. He
should therefore also be prepared, like the courts of justice themselves, to accept its decisions on this matter.
The petitioner magnifies the infraction committed by the San Sebastian Drug Store but the FDA minimizes it. According
to the FDA Administrator, Valium is not even a prohibited drug, which is why the penalty imposed was only a 3-day
closure of the drug store and a fine of P100.00. 26 Notably, the criminal charges filed against the private respondent
for the questioned transaction were dismissed by the fiscal's office. 27
It is also worth noting that the San Sebastian Drug Store was penalized by the FDA only after a hearing held on April
25, 1980, at which private respondent Yambao, assisted by her lawyer-husband, appeared and testified. 28 By
contrast, the revocation of the mayor's permit was communicated to her in a letter 29 reading simply as follows:
Rosalinda Yambao
c/o San Sebastian Drug Store
Hospital Road, Olongapo City
Madame:
Based on a report submitted by PC Major Virtus V. Gil, Chief 3 RFO, Dis. B, Task Force "Bagong Buhay," "you are
rampantly violating the provisions of Republic Act 5921 otherwise known as the 'Pharmacy Law."
Aside from this, there is evidence that you are dispensing regulated drugs contrary to the provisions of R.A. 6425
otherwise known as the Dangerous Drugs Act of 1972.
In view of the above, Mayors Permit No. 1954 heretofore issued in your name for the operation of a drug store
(San Sebastian) at the Annex Building of the Fil-Am (IYC), along Hospital Road, this City, is REVOKED effective
April 18, 1980.
PLEASE BE GUIDED ACCORDINGLY.
Very truly yours,
(SGD.) RICHARD J. GORDON
City Mayor
If only for the violation of due process which is manifest from this letter, the mayor's arbitrary action can be annulled.
The indefinite suspension of the mayor's permit for Olongapo City Drug Store was based on the transfer thereof to
the site of the San Sebastian Drug Store as approved by the FDA but without permission from the petitioner. On this
matter, the Court believes that the final decision rested with the mayor. The condition violated related more to the
location in Olongapo City of business establishments in general than to the regulation of drug stores in particular. It
therefore came under the petitioner's jurisdiction.
The FDA would have the right to disapprove the site of the drug store only if it would impair the health or other
interests of the customers in contravention of the national laws or policies, as where the drug store is located in an
unsanitary site. But the local executive would have reason to object to the location, even if approved by the FDA,
where it does not conform to, say, a zoning ordinance intended to promote the comfort and convenience of the city
residents.
The reason given by the petitioner in disapproving the transfer was violation of Mayor's Permit No. 1955, which by its
terms was valid only at the place stated therein. In the letter of May 13, 1980 30 the private respondent was clearly
informed that for violation of the condition of Mayor's Permit No. 1955 granting her the of operating the Olongapo
City Drug Store at No. 1-B Fil-Am Bldg., Hospital Road, the said permit was "hereby suspended." We find that that
reason was valid enough. The permit clearly allowed the drug store to operate in the address given and not elsewhere.
No hearing was necessary because the transfer without the mayor's permission is not disputed and was in fact
impliedly admitted by the private respondent.
If the private respondent wanted to transfer her drug store, what she should have done was to secure the approval
not only of the FDA but also, and especially, of the mayor. Merely notifying the petitioner of the change in the location
of her drug stores as allowed by the FDA was not enough. The FDA had no authority to revoke that particular condition
of the mayor's permits indicating the sites of the two drug stores as approved by the mayor in the light of the needs
of the city. Only the mayor could.
We assume that Mayor's Permit No. 1954 could also have been validly suspended for the same reason (as the sites
of the two drug stores were exchanged without amendment of their respective permits) were it not for the fact that
such permit was revoked by the petitioner on the more serious ground of violation of the Pharmacy Law and the
Dangerous Drugs Act of 1972.
It is understood, however, that the suspension should be deemed valid only as the two drug stores have not returned
to their original sites as specified in their respective permits. Indefinite suspension will amount to a permanent
revocation, which will not be a commensurate penalty with the degree of the violation being penalized.
The Court adds that denial of the request for transfer, if properly made by the private respondents, may not be validly
denied by the judge in the absence of a clear showing that the transfer sought will prejudice the residents of the city.
As the two drug stores are only a few meters from each other, and in the same building, there would seem to be no
reason why the mere exchange of their locations should not be permitted. Notably, the location of the two drug stores
had previously been approved in Mayor's Permit Nos. 1954 and 1955.
Our holding is that the petitioner acted invalidly in revoking Mayor's Permit No. 1954 after the FDA had authorized
the resumption of operations of the San Sebastian Drug Store following the enforcement of the penalties imposed
upon it. However, it was competent for the petitioner to suspend Mayor's Permit No. 1955 for the transfer of the
Olongapo City Drug Store in violation of the said permit. Such suspension should nevertheless be effective only
pending the return of the drug store to its authorized original site or the eventual approval by the mayor of the
requested transfer if found to be warranted.
The petitioner is to be commended for his zeal in the promotion of the campaign against drug addiction, which has
sapped the vigor and blighted the future of many of our people, especially the youth. The legal presumption is that
he acted in good faith and was motivated only by his concern for the residents of Olongapo City when he directed
the closure of the first drug store and the suspension of the permit of the other drug store. It appears, though, that
he may have overreacted and was for this reason properly restrained by the respondent judge.
WHEREFORE, the challenged Orders of July 6, 1980 and September 4, 1980, are MODIFIED in the sense that the
suspension of Mayor's Permit No. 1955 shall be considered valid but only until the San Sebastian Drug Store and the
Olongapo City Drug Store return to their original sites as specified in the FDA licenses and the mayor's permits or until
the request for transfer, if made by the private respondents, is approved by the petitioner. The rest of the said Orders
are AFFIRMED, with costs against the petitioner.
SO ORDERED.
LOCGOV THE CITY
G.R. No. 100152 March 31, 2000
ACEBEDO OPTICAL COMPANY, INC., petitioner,
vs.
THE HONORABLE COURT OF APPEALS, Hon. MAMINDIARA MANGOTARA, in his capacity as
Presiding Judge of the RTC, 12th Judicial Region, Br. 1, Iligan City; SAMAHANG OPTOMETRIST
Sa PILIPINAS Iligan City Chapter, LEO T. CAHANAP, City Legal Officer, and Hon. CAMILO P.
CABILI, City Mayor of Iligan,respondents.
PURISIMA, J.:
At bar is a petition for review under Rule 45 of the Rules of Court seeking to nullify the dismissal by the Court
of Appeals of the original petition for certiorari, prohibition and mandamus filed by the herein petitioner against
the City Mayor and City Legal Officer of Iligan and the Samahang Optometrist sa Pilipinas Iligan Chapter
(SOPI, for brevity).
The antecedent facts leading to the filing of the instant petition are as follows:
Petitioner applied with the Office of the City Mayor of Iligan for a business permit. After consideration of
petitioner's application and the opposition interposed thereto by local optometrists, respondent City Mayor
issued Business Permit No. 5342 subject to the following conditions:
1. Since it is a corporation, Acebedo cannot put up an optical clinic but only a commercial store;
2. Acebedo cannot examine and/or prescribe reading and similar optical glasses for patients, because
these are functions of optical clinics;
3. Acebedo cannot sell reading and similar eyeglasses without a prescription having first been made
by an independent optometrist (not its employee) or independent optical clinic. Acebedo can only sell
directly to the public, without need of a prescription, Ray-Ban and similar eyeglasses;
4. Acebedo cannot advertise optical lenses and eyeglasses, but can advertise Ray-Ban and similar
glasses and frames;
5. Acebedo is allowed to grind lenses but only upon the prescription of an independent optometrist.
On December 5, 1988, private respondent Samahan ng Optometrist Sa Pilipinas (SOPI), Iligan Chapter, through
its Acting President, Dr. Frances B. Apostol, lodged a complaint against the petitioner before the Office of the
City Mayor, alleging that Acebedo had violated the conditions set forth in its business permit and requesting
the cancellation and/or revocation of such permit.
Acting on such complaint, then City Mayor Camilo P. Cabili designated City Legal Officer Leo T. Cahanap to
conduct an investigation on the matter. On July 12, 1989, respondent City Legal Officer submitted a report to
the City Mayor finding the herein petitioner guilty of violating all the conditions of its business permit and
recommending the disqualification of petitioner from operating its business in Iligan City. The report further
advised that no new permit shall be granted to petitioner for the year 1989 and should only be given time to
wind up its affairs.
On July 19, 1989, the City Mayor sent petitioner a Notice of Resolution and Cancellation of Business Permit
effective as of said date and giving petitioner three (3) months to wind up its affairs.
On October 17, 1989, petitioner brought a petition for certiorari, prohibition and mandamus with prayer for
restraining order/preliminary injunction against the respondents, City Mayor, City Legal Officer and Samahan
ng Optometrists sa Pilipinas-Iligan City Chapter (SOPI), docketed as Civil Case No. 1497 before the Regional
Trial Court of Iligan City, Branch I. Petitioner alleged that (1) it was denied due process because it was not
given an opportunity to present its evidence during the investigation conducted by the City Legal Officer; (2) it
was denied equal protection of the laws as the limitations imposed on its business permit were not imposed on
similar businesses in Iligan City; (3) the City Mayor had no authority to impose the special conditions on its
business permit; and (4) the City Legal Officer had no authority to conduct the investigation as the matter falls
within the exclusive jurisdiction of the Professional Regulation Commission and the Board of Optometry.
Respondent SOPI interposed a Motion to Dismiss the Petition on the ground of non-exhaustion of administrative
remedies but on November 24, 1989, Presiding Judge Mamindiara P. Mangotara deferred resolution of such
Motion to Dismiss until after trial of the case on the merits. However, the prayer for a writ of preliminary
injunction was granted. Thereafter, respondent SOPI filed its answer.1wphi1.nt
On May 30, 1990, the trial court dismissed the petition for failure to exhaust administrative remedies, and
dissolved the writ of preliminary injunction it earlier issued. Petitioner's motion for reconsideration met the
same fate. It was denied by an Order dated June 28, 1990.
On October 3, 1990, instead of taking an appeal, petitioner filed a petition for certiorari, prohibition and
mandamus with the Court of Appeals seeking to set aside the questioned Order of Dismissal, branding the
same as tainted with grave abuse of discretion on the part of the trial court.
On January 24, 1991, the Ninth Division 2 of the Court of Appeals dismissed the petition for lack of merit.
Petitioner's motion reconsideration was also denied in the Resolution dated May 15, 1991.
Undaunted, petitioner has come before this court via the present petition, theorizing that:
A.
THE RESPONDENT COURT, WHILE CORRECTLY HOLDING THAT THE RESPONDENT CITY MAYOR
1
ACTED BEYOND HIS AUTHORITY IN IMPOSING THE SPECIAL CONDITIONS IN THE PERMIT AS THEY
HAD NO BASIS IN ANY LAW OR ORDINANCE, ERRED IN HOLDING THAT THE SAID SPECIAL
CONDITIONS NEVERTHELESS BECAME BINDING ON PETITIONER UPON ITS ACCEPTANCE THEREOF
AS A PRIVATE AGREEMENT OR CONTRACT.
B.
THE RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT THE CONTRACT BETWEEN
PETITIONER AND THE CITY OF ILIGAN WAS ENTERED INTO BY THE LATTER IN THE PERFORMANCE
OF ITS PROPRIETARY FUNCTIONS.
The petition is impressed with merit.
Although petitioner agrees with the finding of the Court of Appeals that respondent City Mayor acted beyond
the scope of his authority in imposing the assailed conditions in subject business permit, it has excepted to the
ruling of the Court of Appeals that the said conditions nonetheless became binding on petitioner, once accepted,
as a private agreement or contract. Petitioner maintains that the said special conditions are null and void for
being ultra vires and cannot be given effect; and therefore, the principle of estoppel cannot apply against it.
On the other hand, the public respondents, City Mayor and City Legal Officer, private respondent SOPI and the
Office of the Solicitor General contend that as a valid exercise of police power, respondent City Mayor has the
authority to impose, as he did, special conditions in the grant of business permits.
Police power as an inherent attribute of sovereignty is the power to prescribe regulations to promote the health,
morals, peace, education, good order or safety and general welfare of the people. 9 The State, through the
legislature, has delegated the exercise of police power to local government units, as agencies of the State, in
order to effectively accomplish and carry out the declared objects of their creation. 4 This delegation of police
power is embodied in the general welfare clause of the Local Government Code which provides:
Sec. 6. 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.
The scope of police power has been held to be so comprehensive as to encompass almost all matters affecting
the health, safety, peace, order, morals, comfort and convenience of the community. Police power is essentially
regulatory in nature and the power to issue licenses or grant business permits, if exercised for a regulatory and
not revenue-raising purpose, is within the ambit of this power. 5
The authority of city mayors to issue or grant licenses and business permits is beyond cavil. It is provided for
by law. Section 171, paragraph 2 (n) of Batas Pambansa Bilang 337 otherwise known as the Local Government
Code of 1983, reads:
Sec. 171. The City Mayor shall:
xxx xxx xxx
n) Grant or refuse to grant, pursuant to law, city licenses or permits, and revoke the same for violation
of law or ordinance or the conditions upon which they are granted.
However, the power to grant or issue licenses or business permits must always be exercised in accordance with
law, with utmost observance of the rights of all concerned to due process and equal protection of the law.
Succinct and in point is the ruling of this Court, that:
. . . While a business may be regulated, such regulation must, however, be within the bounds of
reason, i.e., the regulatory ordinance must be reasonable, and its provision cannot be oppressive
amounting to an arbitrary interference with the business or calling subject of regulation. A lawful
business or calling may not, under the guise of regulation, be unreasonably interfered with even by
the exercise of police power. . . .
xxx xxx xxx
. . . 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. 6
In the case under consideration, the business permit granted by respondent City Mayor to petitioner was
burdened with several conditions. Petitioner agrees with the holding by the Court of Appeals that respondent
City Mayor acted beyond his authority in imposing such special conditions in its permit as the same have no
basis in the law or ordinance. Public respondents and private respondent SOPI, on the other hand, are one in
saying that the imposition of said special conditions on petitioner's business permit is well within the authority
of the City Mayor as a valid exercise of police power.
As aptly discussed by the Solicitor General in his Comment, the power to issue licenses and permits necessarily
includes the corollary power to revoke, withdraw or cancel the same. And the power to revoke or cancel,
likewise includes the power to restrict through the imposition of certain conditions. In the case of Austin-
Hardware, Inc. vs. Court of Appeals, 7 it was held that the power to license carries with it the authority to
provide reasonable terms and conditions under which the licensed business shall be conducted. As the Solicitor
General puts it:
If the City Mayor is empowered to grant or refuse to grant a license, which is a broader power, it
stands to reason that he can also exercise a lesser power that is reasonably incidental to his express
power, i.e. to restrict a license through the imposition of certain conditions, especially so that there is
no positive prohibition to the exercise of such prerogative by the City Mayor, nor is there any particular
official or body vested with such authority. 8
However, the present inquiry does not stop there, as the Solicitor General believes. The power or authority of
the City Mayor to impose conditions or restrictions in the business permit is indisputable. What petitioner assails
are the conditions imposed in its particular case which, it complains, amount to a confiscation of the business
in which petitioner is engaged.
Distinction must be made between the grant of a license or permit to do business and the issuance of a license
to engage in the practice of a particular profession. The first is usually granted by the local authorities and the
second is issued by the Board or Commission tasked to regulate the particular profession. A business permit
authorizes the person, natural or otherwise, to engage in business or some form of commercial activity. A
professional license, on the other hand, is the grant of authority to a natural person to engage in the practice
or exercise of his or her profession.
In the case at bar, what is sought by petitioner from respondent City Mayor is a permit to engage in the
business of running an optical shop. It does not purport to seek a license to engage in the practice of optometry
as a corporate body or entity, although it does have in its employ, persons who are duly licensed to practice
optometry by the Board of Examiners in Optometry.
The case of Samahan ng Optometrists sa Pilipinas vs. Acebedo International Corporation, G.R. No.
117097, 9promulgated by this Court on March 21, 1997, is in point. The factual antecedents of that case are
similar to those of the case under consideration and the issue ultimately resolved therein is exactly the same
issue posed for resolution by this Court en banc.
In the said case, the Acebedo International Corporation filed with the Office of the Municipal Mayor an
application for a business permit for the operation of a branch of Acebedo Optical in Candon, Ilocos Sur. The
application was opposed by the Samahan ng Optometrists sa Pilipinas-Ilocos Sur Chapter, theorizing that
Acebedo is a juridical entity not qualified to practice optometry. A committee was created by the Office of the
Mayor to study private respondent's application. Upon recommendation of the said committee, Acebedo's
application for a business permit was denied. Acebedo filed a petition with the Regional Trial Court but the
same was dismissed. On appeal, however, the Court of Appeals reversed the trial court's disposition, prompting
the Samahan ng Optometrists to elevate the matter to this Court.
The First Division of this Court, then composed of Honorable Justice Teodoro Padilla, Josue Bellosillo, Jose Vitug
and Santiago Kapunan, with Honorable Justice Regino Hermosisima, Jr. as ponente, denied the petition and
ruled in favor of respondent Acebedo International Corporation, holding that "the fact that private respondent
hires optometrists who practice their profession in the course of their employment in private respondent's
optical shops, does not translate into a practice of optometry by private respondent itself," 10 The Court further
elucidated that in both the old and new Optometry Law, R.A. No. 1998, superseded by R.A. No. 8050, it is
significant to note that there is no prohibition against the hiring by corporations of optometrists. The Court
concluded thus:
All told, there is no law that prohibits the hiring by corporations of optometrists or considers the hiring
by corporations of optometrists as a practice by the corporation itself of the profession of optometry.
In the present case, the objective of the imposition of subject conditions on petitioner's business permit could
be attained by requiring the optometrists in petitioner's employ to produce a valid certificate of registration as
optometrist, from the Board of Examiners in Optometry. A business permit is issued primarily to regulate the
conduct of business and the City Mayor cannot, through the issuance of such permit, regulate the practice of
a profession, like that of optometry. Such a function is within the exclusive domain of the administrative agency
specifically empowered by law to supervise the profession, in this case the Professional Regulations Commission
and the Board of Examiners in Optometry.
It is significant to note that during the deliberations of the bicameral conference committee of the Senate and
the House of Representatives on R.A. 8050 (Senate Bill No. 1998 and House Bill No. 14100), the committee
failed to reach a consensus as to the prohibition on indirect practice of optometry by corporations. The
proponent of the bill, former Senator Freddie Webb, admitted thus:
Senator Webb: xxx xxx xxx
The focus of contention remains to be the proposal of prohibiting the indirect practice of optometry
by corporations.1wphi1 We took a second look and even a third look at the issue in the bicameral
conference, but a compromise remained elusive. 11
Former Senator Leticia Ramos-Shahani likewise voted her reservation in casting her vote:
Senator Shahani: Mr. President.
The optometry bills have evoked controversial views from the members of the panel. While we realize
the need to uplift the standards of optometry as a profession, the consesnsus of both Houses was to
avoid touching sensitive issues which properly belong to judicial determination. Thus, the bicameral
conference committee decided to leave the issue of indirect practice of optometry and the use of trade
names open to the wisdom of the Courts which are vested with the prerogative of interpreting the
laws. 12
From the foregoing, it is thus evident that Congress has not adopted a unanimous position on the matter of
prohibition of indirect practice of optometry by corporations, specifically on the hiring and employment of
licensed optometrists by optical corporations. It is clear that Congress left the resolution of such issue for
judicial determination, and it is therefore proper for this Court to resolve the issue.
Even in the United States, jurisprudence varies and there is a conflict of opinions among the federal courts as
to the right of a corporation or individual not himself licensed, to hire and employ licensed optometrists. 13
Courts have distinguished between optometry as a learned profession in the category of law and medicine, and
optometry as a mechanical art. And, insofar as the courts regard optometry as merely a mechanical art, they
have tended to find nothing objectionable in the making and selling of eyeglasses, spectacles and lenses by
corporations so long as the patient is actually examined and prescribed for by a qualified practitioner. 14
The primary purpose of the statute regulating the practice of optometry is to insure that optometrical services
are to be rendered by competent and licensed persons in order to protect the health and physical welfare of
the people from the dangers engendered by unlicensed practice. Such purpose may be fully accomplished
although the person rendering the service is employed by a corporation. 15
Furthermore, it was ruled that the employment of a qualified optometrist by a corporation is not against public
policy. 16 Unless prohibited by statutes, a corporation has all the contractual rights that an individual has 17 and
it does not become the practice of medicine or optometry because of the presence of a physician or
optometrist. 18 The manufacturing, selling, trading and bartering of eyeglasses and spectacles as articles of
merchandise do not constitute the practice of optometry. 19
In the case of Dvorine vs. Castelberg Jewelry Corporation, 20 defendant corporation conducted as part of its
business, a department for the sale of eyeglasses and the furnishing of optometrical services to its clients. It
employed a registered optometrist who was compensated at a regular salary and commission and who was
furnished instruments and appliances needed for the work, as well as an office. In holding that corporation was
not engaged in the practice of optometry, the court ruled that there is no public policy forbidding the
commercialization of optometry, as in law and medicine, and recognized the general practice of making it a
commercial business by advertising and selling eyeglasses.
To accomplish the objective of the regulation, a state may provide by statute that corporations cannot sell
eyeglasses, spectacles, and lenses unless a duly licensed physician or a duly qualified optometrist is in charge
of, and in personal attendance at the place where such articles are sold. 21 In such a case, the patient's primary
and essential safeguard lies in the optometrist's control of the "treatment" by means of prescription and
preliminary and final examination. 22
In analogy, it is noteworthy that private hospitals are maintained by corporations incorporated for the purpose
of furnishing medical and surgical treatment. In the course of providing such treatments, these corporations
employ physicians, surgeons and medical practitioners, in the same way that in the course of manufacturing
and selling eyeglasses, eye frames and optical lenses, optical shops hire licensed optometrists to examine,
prescribe and dispense ophthalmic lenses. No one has ever charged that these corporations are engaged in the
practice of medicine. There is indeed no valid basis for treating corporations engaged in the business of running
optical shops differently.
It also bears stressing, as petitioner has pointed out, that the public and private respondents did not appeal
from the ruling of the Court of Appeals. Consequently, the holding by the Court of Appeals that the act of
respondent City Mayor in imposing the questioned special conditions on petitioner's business permit is ultra
vires cannot be put into issue here by the respondents. It is well-settled that:
A party who has not appealed from the decision may not obtain any affirmative relief from the
appellate court other than what he had obtain from the lower court, if any, whose decision is brought
up on appeal. 23
of business licenses and permits by a municipality or city is essentially regulatory in nature. The authority,
which devolved upon local government units to issue or grant such licenses or permits, is essentially in the
exercise of the police power of the State within the contemplation of the general welfare clause of the Local
Government Code.
WHEREFORE, the petition is GRANTED; the Decision of the Court of Appeals in CA-GR SP No. 22995 REVERSED:
and the respondent City Mayor is hereby ordered to reissue petitioner's business permit in accordance with law
and with this disposition. No pronouncement as to costs.
SO ORDERED.

. . . an appellee who is not an appellant may assign errors in his brief where his purpose is to maintain
the judgment on other grounds, but he cannot seek modification or reversal of the judgment or
affirmative relief unless he has also appealed. 24

Thus, respondents' submission that the imposition of subject special conditions on petitioner's business permit
is not ultra vires cannot prevail over the finding and ruling by the Court of Appeals from which they
(respondents) did not appeal.

Anent the second assigned error, petitioner maintains that its business permit issued by the City Mayor is not
a contract entered into by Iligan City in the exercise of its proprietary functions, such that although petitioner
agreed to such conditions, it cannot be held in estoppel since ultra vires acts cannot be given effect.

Respondents, on the other hand, agree with the ruling of the Court of Appeals that the business permit in
question is in the nature of a contract between Iligan City and the herein petitioner, the terms and conditions
of which are binding upon agreement, and that petitioner is estopped from questioning the same. Moreover,
in the Resolution denying petitioner's motion for reconsideration, the Court of Appeals held that the contract
between the petitioner and the City of Iligan was entered into by the latter in the performance of its proprietary
functions.

This Court holds otherwise. It had occasion to rule that a license or permit is not in the nature of a contract
but a special privilege.

. . . a license or a permit is not a contract between the sovereignty and the licensee or permitee, and
is not a property in the constitutional sense, as to which the constitutional proscription against
impairment of the obligation of contracts may extend. A license is rather in the nature of a special
privilege, of a permission or authority to do what is within its terms. It is not in any way vested,
permanent or absolute. 25

It is therefore decisively clear that estoppel cannot apply in this case. The fact that petitioner acquiesced in the
special conditions imposed by the City Mayor in subject business permit does not preclude it from challenging
the said imposition, which is ultra vires or beyond the ambit of authority of respondent City Mayor. Ultra
vires acts or acts which are clearly beyond the scope of one's authority are null and void and cannot be given
any effect. The doctrine of estoppel cannot operate to give effect to an act which is otherwise null and void
or ultra vires.

The Court of Appeals erred in adjudging subject business permit as having been issued by responded City
Mayor in the performance of proprietary functions of Iligan City. As hereinabove elaborated upon, the issuance
LOCGOV THE PROVINCE
G.R. No. 161081 May 10, 2005
RAMON M. ATIENZA, in his capacity as Vice-Governor of the Province of Occidental Mindoro, petitioner,
vs.
JOSE T. VILLAROSA, in his capacity as Governor of the Province of Occidental Mindoro, respondent.
DECISION
CALLEJO, SR., J.:
Before the Court is the petition for review on certiorari filed by Ramon M. Atienza, in his capacity as Vice-Governor of
the Province of Occidental Mindoro, seeking to reverse and set aside the Decision 1 dated November 28, 2003 of the
Court of Appeals in CA-G.R. SP No. 72069. The assailed decision dismissed the petition for prohibition under Rule 65
of the Rules of Court filed by petitioner Atienza which had sought to enjoin the implementation of the Memoranda
dated June 25, 2002 and July 1, 2002 issued by Jose T. Villarosa, Governor of the same province.
The present case arose from the following undisputed facts:
Petitioner Atienza and respondent Villarosa were the Vice-Governor and Governor, respectively, of the Province of
Occidental Mindoro. On June 26, 2002, the petitioner Vice-Governor received the Memorandum dated June 25, 2002
issued by the respondent Governor concerning the "AUTHORITY TO SIGN PURCHASE ORDERS OF SUPPLIES,
MATERIALS, EQUIPMENT[S], INCLUDING FUEL, REPAIRS AND MAINTENANCE OF THE SANGGUNIANG
PANLALAWIGAN." The said memorandum reads:
For proper coordination and to ensure efficient and effective local government administration particularly on matters
pertaining to supply and property management, effective immediately, all Purchase Orders issued in connection
with the procurement of supplies, materials and equipment[s] including fuel, repairs and maintenance needed in
the transaction of public business or in the pursuit of any undertaking, project or activity of the Sangguniang
Panlalawigan, this province, shall be approved by the undersigned in his capacity as the local chief executive of the
province.
The provision of DILG Opinion No. 148-1993 which states that the authority to sign Purchase Orders of supplies,
materials and equipment[s] of the Sanggunian belongs to the local chief executive, serves as basis of this
memorandum.
For strict compliance.2
In reply to the above memorandum, the petitioner Vice-Governor wrote the respondent Governor stating that:
We are of the opinion that purchase orders for supplies, materials and equipment are included under those as
authorized for signature by the Vice-chief executive of the Sanggunian on the basis of the DILG Opinion No. 96-1995
as affirmed by the COA Opinions on June 28, April 11 and February 9, 1994 and coursing it to the Governor for his
approval is no longer necessary, the fact that [Secs.] 466 and 468, RA 7160 already provides for the separation of
powers between the executive and legislative. Such authority even include everything necessary for the legislative
research program of the Sanggunian.3
Unimpressed, the respondent Governor issued the Memorandum dated July 1, 2002 relating to the "TERMINATION
OF CONTRACT OF SERVICES OF CASUAL/JOB ORDER EMPLOYEES AND REAPPOINTMENT OF THE RESPECTIVE
RECOMMENDEES." The said memorandum reads:
For faithful and appropriate enforcement and execution of laws and issuances and to promote efficiency in the
government service, effective immediately, all existing contract of employment casual/job order basis and
reappointment of the recommendees entered into by Vice-Governor Ramon M. Atienza are hereby terminated for
being unauthorized.
Aside from being signed by the unauthorized signatory, the following facts regarding the appointments were
considered:
1. The appointment of 28 clerks on top of existing permanent employees is a clear manifestation of an excessive
and bloated bureaucracy;
2. The appointment of an X-ray Technician detailed at the Provincial Health Office and some clerks detailed at
various offices in the province were not proper to be assigned by the Vice-Governor;
3. The appointment of 30 messengers, utility workers and drivers ran counter to COA Opinion as cited in the letter
of the undersigned dated 28 June 2002, addressed to the Vice-Governor.
However, in order to accommodate the Vice-Governor and the members of the Sangguniang Panlalawigan, the
undersigned, in his capacity as the local chief executive of the province, will allow four (4) casual/job order
employees to be assigned to the Vice-Governor and one (1) casual/job order employee to be assigned to each
member of the Sangguniang Panlalawigan.
The Vice-Governor and all the Sanggunian Members are hereby directed to submit immediately the names of their
recommendees to the undersigned for immediate approval of their respective appointments.
Please be guided accordingly.4
On July 3, 2002, the respondent Governor issued another Memorandum regarding the "ENFORCIBILITY ( sic) OF
PREVIOUS MEMORANDA ISSUED ON JUNE 20, 26 AND JULY 1, 2002." It provides that:
Please be properly advised that the Memoranda dated June 20, 26 and July 1, 2002 issued by the undersigned
regarding the issuance of permit to travel and authority to sign Purchase Orders of supplies, materials, equipment,
including fuel, repairs and maintenance of the Sangguniang Panlalawigan, is to be strictly adhered to for compliance.
Likewise for strict compliance is the Memorandum dated July 1, 2002 with reference to the Cancellation of the
Appointment of Casual/Job Order Employees of the Sangguniang Panlalawigan Members/Office of the Vice-
Governor previously signed by Vice-Governor Ramon M. Atienza.
Please be guided accordingly.5
In his Letter dated July 9, 2002, the petitioner Vice-Governor invoked the principle of separation of powers as applied
to the local government units, i.e., the respondent, as the Governor, the head of the executive branch, and the
petitioner, as the Vice-Governor, the head of the legislative branch, which is the Sangguniang Panlalawigan. The
petitioner Vice-Governor reiterated his request for the respondent to make a "deeper study" on the matter before
implementing his memoranda. The request, however, went unheeded as the respondent Governor insisted on obliging
the department heads of the provincial government to comply with the memoranda.
The petitioner Vice-Governor thus filed with the Court of Appeals the petition for prohibition assailing as having been
issued with grave abuse of discretion the respondent Governor's Memoranda dated June 25, 2002 and July 1, 2002.
The petitioner Vice-Governor claimed that these memoranda excluded him from the use and enjoyment of his office
in violation of the pertinent provisions of Republic Act No. 7160, or the Local Government Code of 1991, and its
implementing rules and regulations. It was prayed that the respondent Governor be enjoined from implementing the
assailed memoranda.
The appellate court, in its Decision dated November 28, 2003, dismissed the petition for prohibition. Citing Section
3446 of Rep. Act No. 7160, the CA upheld the authority of the respondent Governor to issue the Memorandum dated
June 25, 2002 as it recognized his authority to approve the purchase orders. The said provision provides in part that
"approval of the disbursement voucher by the local chief executive himself shall be required whenever local funds are
disbursed."
The CA explained that Section 466(a)(1)7 of the same Code, relied upon by the petitioner Vice-Governor, speaks of
the authority of the Vice-Governor to sign "all warrants drawn on the public treasury for all expenditures appropriated
for the operation of the sangguniang panlalawigan." In declaring this provision inapplicable, the CA reasoned that the
approval of purchase orders is different from the power of the Vice-Governor to sign warrants drawn against the
public treasury.
Section 3618 was, likewise, held to be inapplicable ratiocinating, thus:
[R]equisitioning, which is provided under Section 361 of RA 7160, is the act of requiring that something be
furnished. In the procurement function, it is the submission of written requests for supplies and materials and the
like. It could be inferred that, in the scheme of things, approval of purchase requests is different from approval of
purchase orders. Thus, the inapplicability of Section 361.
Anent the Memorandum dated July 1, 2002, the CA ruled that the issue on whether it could be enjoined had already
been rendered moot and academic. The CA pointed out that the subject of the said memorandum could no longer be
enjoined or restrained as the termination of the employees had already been effected. It opined that where the act
sought to be enjoined in the prohibition proceedings had already been performed and there is nothing more to
restrain, the case is already moot and academic.
The petitioner Vice-Governor now seeks recourse to this Court alleging that the appellate court committed reversible
error in ruling that it is the Governor, and not the Vice-Governor, who has the authority to sign purchase orders of
supplies, materials, equipment, including fuel, repairs and maintenance of the Sangguniang Panlalawigan. The
petitioner Vice-Governor, likewise, takes exception to the holding of the CA that the issue relating to the July 1, 2002
Memorandum had been rendered moot and academic. He points out that the appointment of casual/job order
employees is exercised by the appointing authority every six months in the case of casual employees and per job
order as to job order employees. Thus, while the July 1, 2002 Memorandum had already been implemented, what is
being sought to be enjoined is the respondent Governor's continued usurpation of the petitioner Vice-Governor's
authority to appoint the employees of the Sangguniang Panlalawigan under the pertinent provisions of Rep. Act No.
7160.
For his part, the respondent Governor maintains that his Memoranda dated June 25, 2002 and July 1, 2002 are valid.
He asserts that the approval of purchase orders is different from the power of the Vice-Governor to sign warrants
drawn against the provincial treasury under Section 466(a)(1) of Rep. Act No. 7160. Rather, he insists on the
application of the last clause in Section 344 which states that the approval of the disbursement by the local chief
executive is required whenever local funds are disbursed.
The respondent Governor likewise defends the validity of the Memorandum dated July 1, 2002 stating that it was
issued upon finding that the petitioner Vice-Governor appointed, among others, 28 clerks on top of the existing
permanent employees resulting in an excessive and bloated bureaucracy. He concedes the appointing power of the
Vice-Governor but submits that this is limited to the employees of the Sangguniang Panlalawigan and that he is not
authorized to appoint officials and employees of the Office of the Vice-Governor.
As correctly presented by the appellate court, the issues for resolution in this case are:
A. Who between the petitioner and the respondent is authorized to approve purchase orders issued in connection
with the procurement of supplies, materials, equipment, including fuel, repairs and maintenance of the Sangguniang
Panlalawigan?
B. Does respondent Villarosa, as local chief executive, have the authority to terminate or cancel the appointments
of casual/job order employees of the Sangguniang Panlalawigan Members and the Office of the Vice-Governor?9
Before resolving the foregoing issues, it is noted that petitioner Atienza and respondent Villarosa had ceased to be
the Vice-Governor and Governor, respectively, of the Province of Occidental Mindoro effective June 30, 2004 when
the newly-elected officials of the province took their oaths of offices. The petitioner Vice-Governor did not run for re-
election during the May 2004 elections while the respondent Governor did not succeed in his re-election bid. The
expiration of their terms of offices has effectively rendered the case moot. However, even in cases where supervening
events had made the cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to
formulate controlling principles to guide the bench, bar and the public. 10 In this case, there is compelling reason for
the Court to resolve the issues presented in order to clarify the scope of the respective powers of the Governor and
Vice-Governor under the pertinent provisions of the Local Government Code of 1991.
To resolve the substantive issues presented in the instant case, it is well to recall that Rep. Act No. 7160 was enacted
to give flesh to the constitutional mandate to "provide for a more responsive and accountable local government
structure instituted through a system of decentralization with effective mechanism of recall, initiative and
referendum, allocate among the different local government units their powers, responsibilities, and resources , and
provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of
local officials, and all matters relating to the organization and operation of the local units." 11
In this connection, the provisions of Rep. Act No. 7160 are anchored on principles that give effect to decentralization.
Among these principles are: [t]here shall be an effective allocation among the different local government units of their
respective powers, functions, responsibilities, and resources; [t]here shall be established in every local government
unit an accountable, efficient, and dynamic organizational structure and operating mechanism that will meet the
priority needs and service requirements of its communities; [p]rovinces with respect to component cities and
municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their
component units are within the scope of their prescribed powers and functions; and [e]ffective mechanisms for
ensuring the accountability of local government units to their respective constituents shall be strengthened in order
to upgrade continually the quality of local leadership.12
With these guideposts, the Court shall now address the issue on who between the Governor and Vice-Governor is
authorized to approve purchase orders issued in connection with the procurement of supplies, materials, equipment,
including fuel, repairs and maintenance of the Sangguniang Panlalawigan.
We hold that it is the Vice-Governor who has such authority.
Under Rep. Act No. 7160, local legislative power for the province is exercised by the Sangguniang Panlalawigan13and
the Vice-Governor is its presiding officer.14 Being vested with legislative powers, the Sangguniang Panlalawigan enacts
ordinances, resolutions and appropriates funds for the general welfare of the province in accordance with the
provisions of Rep. Act No. 7160.15 The same statute vests upon the Vice-Governor the power to:
(1) Be the presiding officer of the sangguniang panlalawigan and sign all warrants drawn on the provincial treasury
for all expenditures appropriated for the operation of the sangguniang panlalawigan. 16
Further, Section 344 provides:
 Sec. 344. Certification on, and Approval of, Vouchers . No money shall be disbursed unless the local budget officer
certifies to the existence of appropriation that has been legally made for the purpose, the local accountant has
obligated said appropriation, and the local treasurer certifies to the availability of funds for the purpose. Vouchers
and payrolls shall be certified to and approved by the head of the department or office who has administrative
control of the fund concerned, as to validity, propriety and legality of the claim involved. Except in cases of
disbursements involving regularly recurring administrative expenses such as payrolls for regular or permanent
employees, expenses for light, water, telephone and telegraph services, remittances to government creditor
agencies such as the GSIS, SSS, LBP, DBP, National Printing Office, Procurement Service of the DBM and others,
approval of the disbursement voucher by the local chief executive himself shall be required whenever local funds
are disbursed.
In cases of special or trust funds, disbursements shall be approved by the administrator of the fund.
In case of temporary absence or incapacity of the department head or chief of office, the officer next-in-rank shall
automatically perform his function and he shall be fully responsible therefor.
Reliance by the CA on the clause "approval of the disbursement voucher by the local chief executive himself shall be
required whenever local funds are disbursed" of the above section (Section 344) to rule that it is the Governor who
has the authority to approve purchase orders for the supplies, materials or equipment for the operation of
the Sangguniang Panlalawigan is misplaced. This clause cannot prevail over the more specific clause of the same
provision which provides that "vouchers and payrolls shall be certified to and approved by the head of the department
or office who has administrative control of the fund concerned." The Vice-Governor, as the presiding officer of
the Sangguniang Panlalawigan, has administrative control of the funds of the said body. Accordingly, it is the Vice-
Governor who has the authority to approve disbursement vouchers for expenditures appropriated for the operation
of the Sangguniang Panlalawigan.
On this point, Section 39 of the Manual on the New Government Accounting System for Local Government Units,
prepared by the Commission on Audit (COA), is instructive:
Sec. 39. Approval of Disbursements. Approval of disbursements by the Local Chief Executive (LCE) himself shall
be required whenever local funds are disbursed, except for regularly recurring administrative expenses such as:
payrolls for regular or permanent employees, expenses for light, water, telephone and telegraph services,
remittances to government creditor agencies such as GSIS, BIR, PHILHEALTH, LBP, DBP, NPO, PS of the DBM and
others, where the authority to approve may be delegated. Disbursement vouchers for expenditures appropriated
for the operation of the Sanggunian shall be approved by the provincial Vice Governor, the city Vice-Mayor or the
municipal Vice-Mayor, as the case may be.17
While Rep. Act No. 7160 is silent as to the matter, the authority granted to the Vice-Governor to sign all warrants
drawn on the provincial treasury for all expenditures appropriated for the operation of the Sangguniang
Panlalawigan as well as to approve disbursement vouchers relating thereto necessarily includes the authority to
approve purchase orders covering the same applying the doctrine of necessary implication. This doctrine is explained,
thus:
No statute can be enacted that can provide all the details involved in its application. There is always an omission
that may not meet a particular situation. What is thought, at the time of enactment, to be an all-embracing
legislation may be inadequate to provide for the unfolding of events of the future. So-called gaps in the law develop
as the law is enforced. One of the rules of statutory construction used to fill in the gap is the doctrine of necessary
implication. The doctrine states that what is implied in a statute is as much a part thereof as that which is expressed.
Every statute is understood, by implication, to contain all such provisions as may be necessary to effectuate its
object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such
collateral and subsidiary consequences as may be fairly and logically inferred from its terms. Ex necessitate legis.
And every statutory grant of power, right or privilege is deemed to include all incidental power, right or privilege.
This is so because the greater includes the lesser, expressed in the maxim, in eo plus sit, simper inest et minus.18
Warrants are "order[s] directing the treasurer of the municipality to pay money out of funds in city treasury which
are or may become available for purpose specified to designated person[s]." 19 Warrants of a municipal corporation
are generally orders payable when funds are found. They are issued for the payment of general municipal debts and
expenses subject to the rule that they shall be paid in the order of presentation. 20
The ordinary meaning of "voucher" is a document which shows that services have been performed or expenses
incurred. It covers any acquittance or receipt discharging the person or evidencing payment by him. When used in
connection with disbursement of money, it implies some instrument that shows on what account or by what authority
a particular payment has been made, or that services have been performed which entitle the party to whom it is
issued to payment.21
Purchase order, on the other hand, is "an authorization by the issuing party for the recipient to provide materials or
services for which issuing party agrees to pay; it is an offer to buy which becomes binding when those things ordered
have been provided."22
When an authorized person approves a disbursement voucher, he certifies to the correctness of the entries therein,
among others: that the expenses incurred were necessary and lawful, the supporting documents are complete and
the availability of cash therefor. Further, the person who performed the services or delivered the supplies, materials
or equipment is entitled to payment.23 On the other hand, the terms and conditions for the procurement of supplies,
materials or equipment, in particular, are contained in a purchase order. The tenor of a purchase order basically
directs the supplier to deliver the articles enumerated and subject to the terms and conditions specified
therein.24Hence, the express authority to approve disbursement vouchers and, in effect, authorize the payment of
money claims for supplies, materials or equipment, necessarily includes the authority to approve purchase orders to
cause the delivery of the said supplies, materials or equipment.
Since it is the Vice-Governor who approves disbursement vouchers and approves the payment for the procurement
of the supplies, materials and equipment needed for the operation of the Sangguniang Panlalawigan, then he also
has the authority to approve the purchase orders to cause the delivery of the said supplies, materials or equipment.
Indeed, the authority granted to the Vice-Governor to sign all warrants drawn on the provincial treasury for all
expenditures appropriated for the operation of the Sangguniang Panlalawigan as well as to approve disbursement
vouchers relating thereto is greater and includes the authority to approve purchase orders for the procurement of the
supplies, materials and equipment necessary for the operation of the Sangguniang Panlalawigan.
Anent the second issue, the appellate court likewise committed reversible error in holding that the implementation of
the Memorandum dated July 1, 2002 had rendered the petition moot and academic. It is recognized that courts will
decide a question otherwise moot and academic if it is "capable of repetition yet evading review." 25 Even if the
employees whose contractual or job order employment had been terminated by the implementation of the July 1,
2002 Memorandum may no longer be reinstated, still, similar memoranda may be issued by other local chief
executives. Hence, it behooves the Court to resolve whether the Governor has the authority to terminate or cancel
the appointments of casual/job order employees of the Sangguniang Panlalawigan and the Office of the Vice-
Governor.
We hold that the Governor, with respect to the appointment of the officials and employees of the Sangguniang
Panlalawigan, has no such authority.
Among the powers granted to the Governor under Section 465 of Rep. Act No. 7160 are:
 Sec. 465. The Chief Executive: Powers, Duties, Functions and Compensation . (a) The provincial governor, as the
chief executive of the provincial government, shall exercise such powers and perform such duties and functions as
provided by this Code and other laws. Sec. 206. Sessions.

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the province (3) The governor, who shall be the presiding officer of the sangguniang panlalawigan, shall not be entitled to vote
and its inhabitants pursuant to Section 16 of this Code, the provincial governor shall: except in case of a tie.

(v) Appoint all officials and employees whose salaries and wages are wholly or mainly paid out of provincial funds
and whose appointments are not otherwise provided for in this Code, as well as those he may be authorized by
law to appoint.
On the other hand, Section 466 vests on the Vice-Governor the power to, among others:
(2) Subject to civil service law, rules and regulations, appoint all officials and employees of the sangguniang
panlalawigan, except those whose manner of appointment is specifically provided in this Code.
Thus, while the Governor has the authority to appoint officials and employees whose salaries are paid out of the
provincial funds, this does not extend to the officials and employees of the Sangguniang Panlalawigan because such
authority is lodged with the Vice-Governor. In the same manner, the authority to appoint casual and job order
employees of the Sangguniang Panlalawigan belongs to the Vice-Governor.
The authority of the Vice-Governor to appoint the officials and employees of the Sangguniang Panlalawigan is
anchored on the fact that the salaries of these employees are derived from the appropriation specifically for the said
local legislative body. Indeed, the budget source of their salaries is what sets the employees and officials of
the Sangguniang Panlalawigan apart from the other employees and officials of the province. Accordingly, the
appointing power of the Vice-Governor is limited to those employees of the Sangguniang Panlalawigan, as well as
those of the Office of the Vice-Governor, whose salaries are paid out of the funds appropriated for the Sangguniang
Panlalawigan. As a corollary, if the salary of an employee or official is charged against the provincial funds, even if
this employee reports to the Vice-Governor or is assigned to his office, the Governor retains the authority to appoint
the said employee pursuant to Section 465(b)(v) of Rep. Act No. 7160.
With Rep. Act No. 7160, the union of legislative and executive powers in the office of the local chief executive under
the BP Blg. 337 has been disbanded, so that either department now comprises different and non-intermingling official
personalities with the end in view of ensuring a better delivery of public service and provide a system of check and
balance between the two.27
Senator Aquilino Pimentel, the principal author of Rep. Act No. 7160, explained that "the Vice-Governor is now the
presiding officer of the Sangguniang Panlalawigan. The City Vice-Mayor presides at meetings of the Sangguniang
Panlungsod and the Municipal Vice-Mayor at the sessions of the Sangguniang Bayan. The idea is to distribute powers
among elective local officials so that the legislative, which is the Sanggunian, can properly check the executive, which
is the Governor or the Mayor and vice versa and exercise their functions without any undue interference from one by
the other."28
The avowed intent of Rep. Act. No. 7160, therefore, is to vest on the Sangguniang Panlalawigan independence in the
exercise of its legislative functions vis-a-vis the discharge by the Governor of the executive functions. The Memoranda
dated June 25, 2002 and July 1, 2002 of the respondent Governor, which effectively excluded the petitioner Vice-
Governor, the presiding officer of the Sangguniang Panlalawigan, from signing the purchase orders for the
procurement of supplies, materials or equipment needed for the operation of the Sangguniang Panlalawiganas well
as from appointing its casual and job order employees, constituted undue interference with the latter's functions. The
assailed memoranda are clearly not in keeping with the intent of Rep. Act No. 7160 and their implementation should
thus be permanently enjoined.
WHEREFORE, the petition is GRANTED. The Memoranda dated June 25, 2002 and July 1, 2002 issued by respondent
Governor Jose T. Villarosa are NULL AND VOID.

However, in this case, it does not appear whether the contractual/job order employees, whose appointments were SO ORDERED.
terminated or cancelled by the Memorandum dated July 1, 2002 issued by the respondent Governor, were paid out
of the provincial funds or the funds of the Sangguniang Panlalawigan. Nonetheless, the validity of the said
memorandum cannot be upheld because it absolutely prohibited the respondent Vice-Governor from exercising his
authority to appoint the employees, whether regular or contractual/job order, of the Sangguniang Panlalawigan and
restricted such authority to one of recommendatory nature only. 26 This clearly constituted an encroachment on the
appointment power of the respondent Vice- Governor under Section 466(a)(2) of Rep. Act No. 7160.

At this juncture, it is well to note that under Batas Pambansa Blg. 337, the Local Government Code prior to Rep. Act
No. 7160, the Governor was the presiding officer of the Sangguniang Panlalawigan:

Sec. 205. Composition. (1) Each provincial government shall have a provincial legislature hereinafter known as
the sangguniang panlalawigan, upon which shall be vested the provincial legislative power.

(2) The sangguniang panlalawigan shall be composed of the governor, vice-governor, elective members of the
said sanggunian, and the presidents of the katipunang panlalawigan and the kabataang barangayprovincial
federation who shall be appointed by the President of the Philippines.
LOCGOV THE PROVINCE
G.R. No. 196870 June 26, 2012
BORACAY FOUNDATION, INC., Petitioner,
vs.
THE PROVINCE OF AKLAN, REPRESENTED BY GOVERNOR CARLITO S. MARQUEZ, THE
PHILIPPINE RECLAMATION AUTHORITY, AND THE DENR-EMB (REGION VI), Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
In resolving this controversy, the Court took into consideration that all the parties involved share common goals
in pursuit of certain primordial State policies and principles that are enshrined in the Constitution and pertinent
laws, such as the protection of the environment, the empowerment of the local government units, the
promotion of tourism, and the encouragement of the participation of the private sector. The Court seeks to
reconcile the respective roles, duties and responsibilities of the petitioner and respondents in achieving these
shared goals within the context of our Constitution, laws and regulations.
Nature of the Case
This is an original petition for the issuance of an Environmental Protection Order in the nature of a continuing
mandamus under A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for Environmental Cases,
promulgated on April 29, 2010.
The Parties
Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic corporation. Its primary
purpose is "to foster a united, concerted and environment-conscious development of Boracay Island, thereby
preserving and maintaining its culture, natural beauty and ecological balance, marking the island as the crown
jewel of Philippine tourism, a prime tourist destination in Asia and the whole world." 1 It counts among its
members at least sixty (60) owners and representatives of resorts, hotels, restaurants, and similar institutions;
at least five community organizations; and several environmentally-conscious residents and advocates.2
Respondent Province of Aklan (respondent Province) is a political subdivision of the government created
pursuant to Republic Act No. 1414, represented by Honorable Carlito S. Marquez, the Provincial Governor
(Governor Marquez).
Respondent Philippine Reclamation Authority (respondent PRA), formerly called the Public Estates Authority
(PEA), is a government entity created by Presidential Decree No. 1084,3 which states that one of the purposes
for which respondent PRA was created was to reclaim land, including foreshore and submerged areas. PEA
eventually became the lead agency primarily responsible for all reclamation projects in the country under
Executive Order No. 525, series of 1979. In June 2006, the President of the Philippines issued Executive Order
No. 543, delegating the power "to approve reclamation projects to PRA through its governing Board, subject
to compliance with existing laws and rules and further subject to the condition that reclamation contracts to be
executed with any person or entity (must) go through public bidding."4
Respondent Department of Environment and Natural Resources Environmental Management Bureau (DENR-
EMB), Regional Office VI (respondent DENR-EMB RVI), is the government agency in the Western Visayas Region
authorized to issue environmental compliance certificates regarding projects that require the environments
protection and management in the region.5
Summary of Antecedent Facts
Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of the Philippines and one
of the countrys most popular tourist destinations, was declared a tourist zone and marine reserve in 1973
under Presidential Proclamation No. 1801.6 The island comprises the barangays of Manoc-manoc, Balabag, and
Yapak, all within the municipality of Malay, in the province of Aklan.7
Petitioner describes Boracay as follows:
Boracay is well-known for its distinctive powdery white-sand beaches which are the product of the unique
ecosystem dynamics of the area. The island itself is known to come from the uplifted remnants of an ancient
reef platform. Its beaches, the sandy land strip between the water and the area currently occupied by numerous
establishments, is the primary draw for domestic and international tourists for its color, texture and other
unique characteristics. Needless to state, it is the premier domestic and international tourist destination in the
Philippines.8
More than a decade ago, respondent Province built the Caticlan Jetty Port and Passenger Terminal at Barangay
Caticlan to be the main gateway to Boracay. It also built the corresponding Cagban Jetty Port and Passenger
Terminal to be the receiving end for tourists in Boracay. Respondent Province operates both ports "to provide
structural facilities suited for locals, tourists and guests and to provide safety and security measures."9
In 2005, Boracay 2010 Summit was held and participated in by representatives from national government
agencies, local government units (LGUs), and the private sector. Petitioner was one of the organizers and
participants thereto. The Summit aimed "to re-establish a common vision of all stakeholders to ensure the
conservation, restoration, and preservation of Boracay Island" and "to develop an action plan that [would allow]
all sectors to work in concert among and with each other for the long term benefit and sustainability of the
island and the community."10 The Summit yielded a Terminal Report11 stating that the participants had shared
their dream of having world-class land, water and air infrastructure, as well as given their observations that
government support was lacking, infrastructure was poor, and, more importantly, the influx of tourists to
Boracay was increasing. The Report showed that there was a need to expand the port facilities at Caticlan due
to congestion in the holding area of the existing port, caused by inadequate facilities, thus tourists suffered
long queues while waiting for the boat ride going to the island.12
Respondent Province claimed that tourist arrivals to Boracay reached approximately 649,559 in 2009 and
779,666 in 2010, and this was expected to reach a record of 1 million tourist arrivals in the years to come.
Thus, respondent Province conceptualized the expansion of the port facilities at Barangay Caticlan. 13
The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution No. 13, s. 2008 14 on April 25,
2008 stating that it had learned that respondent Province had filed an application with the DENR for a foreshore
lease of areas along the shorelines of Barangay Caticlan, and manifesting its strong opposition to said
application, as the proposed foreshore lease practically covered almost all the coastlines of said barangay,
thereby technically diminishing its territorial jurisdiction, once granted, and depriving its constituents of their
statutory right of preference in the development and utilization of the natural resources within its jurisdiction.
The resolution further stated that respondent Province did not conduct any consultations with the Sangguniang
Barangay of Caticlan regarding the proposed foreshore lease, which failure the Sanggunian considered as an
act of bad faith on the part of respondent Province.15
On November 20, 2008, the Sangguniang Panlalawigan of respondent Province approved Resolution No. 2008-
369,16 formally authorizing Governor Marquez to enter into negotiations towards the possibility of effecting self-
liquidating and income-producing development and livelihood projects to be financed through bonds,
debentures, securities, collaterals, notes or other obligations as provided under Section 299 of the Local
Government Code, with the following priority projects: (a) renovation/rehabilitation of the Caticlan/Cagban
Passenger Terminal Buildings and Jetty Ports; and (b) reclamation of a portion of Caticlan foreshore for
commercial purposes.17 This step was taken as respondent Provinces existing jetty port and passenger terminal
was funded through bond flotation, which was successfully redeemed and paid ahead of the target date. This
was allegedly cited as one of the LGUs Best Practices wherein respondent Province was given the appropriate
commendation.18
Respondent Province included the proposed expansion of the port facilities at Barangay Caticlan in its 2009
Annual Investment Plan,19 envisioned as its project site the area adjacent to the existing jetty port, and
identified additional areas along the coastline of Barangay Caticlan as the site for future project expansion.20
Governor Marquez sent a letter to respondent PRA on March 12, 2009 21 expressing the interest of respondent
Province to reclaim about 2.64 hectares of land along the foreshores of Barangay Caticlan, Municipality of
Malay, Province of Aklan.
Sometime in April 2009, respondent Province entered into an agreement with the Financial Advisor/Consultant
that won in the bidding process held a month before, to conduct the necessary feasibility study of the proposed
project for the Renovation/Rehabilitation of the Caticlan Passenger Terminal Building and Jetty Port,
Enhancement and Recovery of Old Caticlan Coastline, and Reclamation of a Portion of Foreshore for Commercial
Purposes (the Marina Project), in Malay, Aklan.22
Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province issued Resolution No.
2009110,23 which authorized Governor Marquez to file an application to reclaim the 2.64 hectares of foreshore
area in Caticlan, Malay, Aklan with respondent PRA.
Sometime in July 2009, the Financial Advisor/Consultant came up with a feasibility study which focused on the
land reclamation of 2.64 hectares by way of beach enhancement and recovery of the old Caticlan coastline for
the rehabilitation and expansion of the existing jetty port, and for its future plans the construction of
commercial building and wellness center. The financial component of the said study was Two Hundred Sixty
Million Pesos (260,000,000.00). Its suggested financing scheme was bond flotation.24
Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong opposition to the intended
foreshore lease application, through Resolution No. 044,25 approved on July 22, 2009, manifesting therein that
respondent Provinces foreshore lease application was for business enterprise purposes for its benefit, at the
expense of the local government of Malay, which by statutory provisions was the rightful entity "to develop,
utilize and reap benefits from the natural resources found within its jurisdiction."26
In August 2009, a Preliminary Geohazard Assessment27 for the enhancement/expansion of the existing Caticlan
Jetty Port and Passenger Terminal through beach zone restoration and Protective Marina Developments in
Caticlan, Malay, Aklan was completed.
Thereafter, Governor Marquez submitted an Environmental Performance Report and Monitoring Program
(EPRMP)28 to DENR-EMB RVI, which he had attached to his letter29 dated September 19, 2009, as an initial step
for securing an Environmental Compliance Certificate (ECC). The letter reads in part:
With the project expected to start its construction implementation next month, the province hereby assures
your good office that it will give preferential attention to and shall comply with whatever comments that you
may have on this EPRMP.30 (Emphasis added.)
Respondent Province was then authorized to issue "Caticlan Super Marina Bonds" for the purpose of funding
the renovation of the Caticlan Jetty Port and Passenger Terminal Building, and the reclamation of a portion of
the foreshore lease area for commercial purposes in Malay, Aklan through Provincial Ordinance No. 2009-013,
approved on September 10, 2009. The said ordinance authorized Governor Marquez to negotiate, sign and
execute agreements in relation to the issuance of the Caticlan Super Marina Bonds in the amount not exceeding
260,000,000.00.31
Subsequently, the Sangguniang Panlalawigan of the Province of Aklan issued Provincial Ordinance No. 2009-
01532on October 1, 2009, amending Provincial Ordinance No. 2009-013, authorizing the bond flotation of the
Province of Aklan through Governor Marquez to fund the Marina Project and appropriate the entire proceeds
of said bonds for the project, and further authorizing Governor Marquez to negotiate, sign and execute contracts
or agreements pertinent to the transaction.33
Within the same month of October 2009, respondent Province deliberated on the possible expansion from its
original proposed reclamation area of 2.64 hectares to forty (40) hectares in order to maximize the utilization
of its resources and as a response to the findings of the Preliminary Geohazard Assessment study which showed
that the recession and retreat of the shoreline caused by coastal erosion and scouring should be the first major
concern in the project site and nearby coastal area. The study likewise indicated the vulnerability of the coastal
zone within the proposed project site and the nearby coastal area due to the effects of sea level rise and climate
change which will greatly affect the social, economic, and environmental situation of Caticlan and nearby Malay
coastal communities.34
In his letter dated October 22, 2009 addressed to respondent PRA, Governor Marquez wrote:
With our substantial compliance with the requirements under Administrative Order No. 2007-2 relative to our
request to PRA for approval of the reclamation of the [proposed Beach Zone Restoration and Protection Marine
Development in Barangays Caticlan and Manoc-Manoc] and as a result of our discussion during the [meeting
with the respondent PRA on October 12, 2009], may we respectfully submit a revised Reclamation Project
Description embodying certain revisions/changes in the size and location of the areas to be reclaimed. x x x.
On another note, we are pleased to inform your Office that the bond flotation we have secured with the Local
Government Unit Guarantee Corporation (LGUGC) has been finally approved last October 14, 2009. This will
pave the way for the implementation of said project. Briefly, the Province has been recognized by the Bureau
of Local Government Finance (BLGF) for its capability to meet its loan obligations. x x x.
With the continued increase of tourists coming to Boracay through Caticlan, the Province is venturing into such
development project with the end in view of protection and/or restoring certain segments of the shoreline in
Barangays Caticlan (Caticlan side) and Manoc-manoc (Boracay side) which, as reported by experts, has been
experiencing tremendous coastal erosion.
For the project to be self-liquidating, however, we will be developing the reclaimed land for commercial and
tourism-related facilities and for other complementary uses.35 (Emphasis ours.)
Then, on November 19, 2009, the Sangguniang Panlalawigan enacted Resolution No. 2009-29936 authorizing
Governor Marquez to enter into a Memorandum of Agreement (MOA) with respondent PRA in the
implementation of the Beach Zone Restoration and Protection Marina Development Project, which shall reclaim
a total of 40 hectares in the areas adjacent to the jetty ports at Barangay Caticlan and Barangay Manoc-manoc.
The Sangguniang Panlalawigan approved the terms and conditions of the necessary agreements for the
implementation of the bond flotation of respondent Province to fund the renovation/rehabilitation of the existing
jetty port by way of enhancement and recovery of the Old Caticlan shoreline through reclamation of an area of
2.64 hectares in the amount of 260,000,000.00 on December 1, 2009.37
Respondent Province gave an initial presentation of the project with consultation to the Sangguniang Bayan of
Malay38 on December 9, 2009.
Respondent PRA approved the reclamation project on April 20, 2010 in its Resolution No. 4094 and authorized
its General Manager/Chief Executive Officer (CEO) to enter into a MOA with respondent Province for the
implementation of the reclamation project.39
On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-096-7100 (the questioned ECC)
for Phase 1 of the Reclamation Project to the extent of 2.64 hectares to be done along the Caticlan side beside
the existing jetty port.40
On May 17, 2010, respondent Province entered into a MOA41 with respondent PRA. Under Article III, the Project
was described therein as follows:
The proposed Aklan Beach Zone Restoration and Protection Marina Development Project involves the
reclamation and development of approximately forty (40) hectares of foreshore and offshore areas of the
Municipality of Malay x x x.
The land use development of the reclamation project shall be for commercial, recreational and institutional and
other applicable uses.42 (Emphases supplied.)
It was at this point that respondent Province deemed it necessary to conduct a series of what it calls
"information-education campaigns," which provided the venue for interaction and dialogue with the public,
particularly the Barangay and Municipal officials of the Municipality of Malay, the residents of Barangay Caticlan
and Boracay, the stakeholders, and the non-governmental organizations (NGOs). The details of the campaign
are summarized as follows43 :
a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay, Aklan; 44
b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal;45
c. July 31, 2010 at Barangay Caticlan Plaza;46
d. September 15, 2010 at the Office of the Provincial Governor with Municipal Mayor of Malay Mayor
John P. Yap;47
e. October 12, 2010 at the Office of the Provincial Governor with the Provincial Development Council
Executive Committee;48 and
f. October 29, 2010 at the Office of the Provincial Governor with Officials of LGU-Malay and Petitioner.49
Petitioner claims that during the "public consultation meeting" belatedly called by respondent Province on June
17, 2010, respondent Province presented the Reclamation Project and only then detailed the actions that it had
already undertaken, particularly: the issuance of the Caticlan Super Marina Bonds; the execution of the MOA
with respondent PRA; the alleged conduct of an Environmental Impact Assessment (EIA) study for the
reclamation project; and the expansion of the project to forty (40) hectares from 2.64 hectares.50
In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality reiterated its strong
opposition to respondent Provinces project and denied its request for a favorable endorsement of the Marina
Project.51
The Malay Municipality subsequently issued Resolution No. 016, Series of 2010, adopted on August 3, 2010, to
request respondent PRA "not to grant reclamation permit and notice to proceed to the Marina Project of the
[respondent] Provincial Government of Aklan located at Caticlan, Malay, Aklan."52
In a letter53 dated October 12, 2010, petitioner informed respondent PRA of its opposition to the reclamation
project, primarily for the reason that, based on the opinion of Dr. Porfirio M. Alio, an expert from the University
of the Philippines Marine Science Institute (UPMSI), which he rendered based on the documents submitted by
respondent Province to obtain the ECC, a full EIA study is required to assess the reclamation projects likelihood
of rendering critical and lasting effect on Boracay considering the proximity in distance, geographical location,
current and wind direction, and many other environmental considerations in the area. Petitioner noted that said
documents had failed to deal with coastal erosion concerns in Boracay. It also noted that respondent Province
failed to comply with certain mandatory provisions of the Local Government Code, particularly, those requiring
the project proponent to conduct consultations with stakeholders.
Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its opposition to the
reclamation project to respondent Province, respondent PRA, respondent DENR-EMB, the National Economic
Development Authority Region VI, the Malay Municipality, and other concerned entities.54
Petitioner alleges that despite the Malay Municipalitys denial of respondent Provinces request for a favorable
endorsement, as well as the strong opposition manifested both by Barangay Caticlan and petitioner as an NGO,
respondent Province still continued with the implementation of the Reclamation Project.55
On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set aside Resolution No. 046, s. 2010,
of the Municipality of Malay and manifested its support for the implementation of the aforesaid project through
its Resolution No. 2010-022.56
On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors under its Resolution No. 4130.
Respondent PRA wrote to respondent Province on October 19, 2010, informing the latter to proceed with the
reclamation and development of phase 1 of site 1 of its proposed project. Respondent PRA attached to said
letter its Evaluation Report dated October 18, 2010.57
Petitioner likewise received a copy of respondent PRAs letter dated October 19, 2010, which authorized
respondent Province to proceed with phase 1 of the reclamation project, subject to compliance with the
requirements of its Evaluation Report. The reclamation project was described as:
"[A] seafront development involving reclamation of an aggregate area of more or less, forty (40) hectares in After receiving a copy of the TEPO on June 9, 2011, respondent Province immediately issued an order to the
two (2) separate sites both in Malay Municipality, Aklan Province. Site 1 is in Brgy. Caticlan with a total area of Provincial Engineering Office and the concerned contractor to cease and desist from conducting any
36.82 hectares and Site 2 in Brgy. Manoc-Manoc, Boracay Island with a total area of 3.18 hectares. Sites 1 and construction activities until further orders from this Court.
2 are on the opposite sides of Tabon Strait, about 1,200 meters apart. x x x." 58 (Emphases added.)
The petition is premised on the following grounds:
The Sangguniang Panlalawigan of Aklan, through Resolution No. 2010-034,59 addressed the apprehensions of
petitioner embodied in its Resolution No. 001, s. 2010, and supported the implementation of the project. Said I.
resolution stated that the apprehensions of petitioner with regard to the economic, social and political negative
impacts of the projects were mere perceptions and generalities and were not anchored on definite scientific,
The respondent Province, proponent of the reclamation project, failed to comply with relevant rules and
social and political studies.
regulations in the acquisition of an ECC.

In the meantime, a study was commissioned by the Philippine Chamber of Commerce and Industry-Boracay
(PCCI-Boracay), funded by the Department of Tourism (DOT) with the assistance of, among others, petitioner.
The study was conducted in November 2010 by several marine biologists/experts from the Marine
Environmental Resources Foundation (MERF) of the UPMSI. The study was intended to determine the potential
impact of a reclamation project in the hydrodynamics of the strait and on the coastal erosion patterns in the
southern coast of Boracay Island and along the coast of Caticlan.60
After noting the objections of the respective LGUs of Caticlan and Malay, as well as the apprehensions of
petitioner, respondent Province issued a notice to the contractor on December 1, 2010 to commence with the
construction of the project.61
On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee on Cooperatives, Food,
Agriculture, and Environmental Protection and the Committee on Tourism, Trade, Industry and Commerce,
conducted a joint committee hearing wherein the study undertaken by the MERF-UPMSI was discussed.62 In
attendance were Mr. Ariel Abriam, President of PCCI-Boracay, representatives from the Provincial Government,
and Dr. Cesar Villanoy, a professor from the UPMSI. Dr. Villanoy said that the subject project, consisting of
2.64 hectares, would only have insignificant effect on the hydrodynamics of the strait traversing the coastline
of Barangay Caticlan and Boracay, hence, there was a distant possibility that it would affect the Boracay
coastline, which includes the famous white-sand beach of the island.63
Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan enacted Resolution No. 2011-06564 noting the
report on the survey of the channel between Caticlan and Boracay conducted by the UPMSI in relation to the
effects of the ongoing reclamation to Boracay beaches, and stating that Dr. Villanoy had admitted that nowhere
in their study was it pointed out that there would be an adverse effect on the white-sand beach of Boracay.
During the First Quarter Regular Meeting of the Regional Development Council, Region VI (RDC-VI) on April
16, 2011, it approved and supported the subject project (covering 2.64 hectares) through RDC-VI Resolution
No. VI-26, series of 2011.65
Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011 stating that the study
conducted by the UPMSI confirms that the water flow across the Caticlan-Boracay channel is primarily tide-
driven, therefore, the marine scientists believe that the 2.64-hectare project of respondent Province would not
significantly affect the flow in the channel and would unlikely impact the Boracay beaches. Based on this, PCCI-
Boracay stated that it was not opposing the 2.64-hectare Caticlan reclamation project on environmental
grounds.66
On June 1, 2011, petitioner filed the instant Petition for Environmental Protection Order/Issuance of the Writ
of Continuing Mandamus. On June 7, 2011, this Court issued a Temporary Environmental Protection Order
(TEPO) and ordered the respondents to file their respective comments to the petition.67
A. The reclamation project is co-located within environmentally critical areas requiring the performance
of a full, or programmatic, environmental impact assessment.
B. Respondent Province failed to obtain the favorable endorsement of the LGU concerned.
C. Respondent Province failed to conduct the required consultation procedures as required by the
Local Government Code.
D. Respondent Province failed to perform a full environmental impact assessment as required by law
and relevant regulations.
II.
The reclamation of land bordering the strait between Caticlan and Boracay shall adversely affect the frail
ecological balance of the area.68
Petitioner objects to respondent Provinces classification of the reclamation project as single instead of co-
located, as "non-environmentally critical," and as a mere "rehabilitation" of the existing jetty port. Petitioner
points out that the reclamation project is on two sites (which are situated on the opposite sides of Tabon Strait,
about 1,200 meters apart):
36.82 hectares Site 1, in Bgy. Caticlan
3.18 hectares Site 2, in Manoc-manoc, Boracay Island69
Phase 1, which was started in December 2010 without the necessary permits, 70 is located on the Caticlan side
of a narrow strait separating mainland Aklan from Boracay. In the implementation of the project, respondent
Province obtained only an ECC to conduct Phase 1, instead of an ECC on the entire 40 hectares. Thus, petitioner
argues that respondent Province abused and exploited the Revised Procedural Manual for DENR Administrative
Order No. 30, Series of 2003 (DENR DAO 2003-30)71 relating to the acquisition of an ECC by:
1. Declaring the reclamation project under "Group II Projects-Non-ECP (environmentally critical
project) in ECA (environmentally critical area) based on the type and size of the area," and
2. Failing to declare the reclamation project as a co-located project application which would have
required the Province to submit a Programmatic Environmental Impact Statement (PEIS) 72 or
Programmatic Environmental [Performance] Report Management Plan (PE[P]RMP).73 (Emphases
ours.)
Petitioner further alleges that the Revised Procedural Manual (on which the classification above is based, which
merely requires an Environmental Impact Statement [EIS] for Group II projects) is patently ultra vires, and
respondent DENR-EMB RVI committed grave abuse of discretion because the laws on EIS, namely, Presidential
Decree Nos. 1151 and 1586, as well as Presidential Proclamation No. 2146, clearly indicate that projects in
environmentally critical areas are to be immediately considered environmentally critical. Petitioner complains
that respondent Province applied for an ECC only for Phase 1; hence, unlawfully
evading the requirement that co-located projects74 within Environmentally Critical Areas (ECAs) must submit a
PEIS and/or a PEPRMP.
Petitioner argues that respondent Province fraudulently classified and misrepresented the project as a Non-ECP
in an ECA, and as a single project instead of a co-located one. The impact assessment allegedly performed
gives a patently erroneous and wrongly-premised appraisal of the possible environmental impact of the
reclamation project. Petitioner contends that respondent Provinces choice of classification was designed to
avoid a comprehensive impact assessment of the reclamation project.
Petitioner further contends that respondent DENR-EMB RVI willfully and deliberately disregarded its duty to
ensure that the environment is protected from harmful developmental projects because it allegedly performed
only a cursory and superficial review of the documents submitted by the respondent Province for an ECC, failing
to note that all the information and data used by respondent Province in its application for the ECC were all
dated and not current, as data was gathered in the late 1990s for the ECC issued in 1999 for the first jetty port.
Thus, petitioner alleges that respondent DENR-EMB RVI ignored the environmental impact to Boracay, which
involves changes in the structure of the coastline that could contribute to the changes in the characteristics of
the sand in the beaches of both Caticlan and Boracay.
Petitioner insists that reclamation of land at the Caticlan side will unavoidably adversely affect the Boracay side
and notes that the declared objective of the reclamation project is for the exploitation of Boracays tourist trade,
since the project is intended to enhance support services thereto. But, petitioner argues, the primary reason
for Boracays popularity is its white-sand beaches which will be negatively affected by the project.
Petitioner alleges that respondent PRA had required respondent Province to obtain the favorable endorsement
of the LGUs of Barangay Caticlan and Malay Municipality pursuant to the consultation procedures as required
by the Local Government Code.75 Petitioner asserts that the reclamation project is in violation not only of laws
on EIS but also of the Local Government Code as respondent Province failed to enter into proper consultations
with the concerned LGUs. In fact, the Liga ng mga Barangay-Malay Chapter also expressed strong opposition
against the project.76
Petitioner cites Sections 26 and 27 of the Local Government Code, which require consultations if the project or
program may cause pollution, climactic change, depletion of non-renewable resources, etc. According to
petitioner, respondent Province ignored the LGUs opposition expressed as early as 2008. Not only that,
respondent Province belatedly called for public "consultation meetings" on June 17 and July 28, 2010, after an
ECC had already been issued and the MOA between respondents PRA and Province had already been executed.
As the petitioner saw it, these were not consultations but mere "project presentations."
Petitioner claims that respondent Province, aided and abetted by respondents PRA and DENR-EMB, ignored the
spirit and letter of the Revised Procedural Manual, intended to implement the various regulations governing the
Environmental Impact Assessments (EIAs) to ensure that developmental projects are in line with sustainable
development of natural resources. The project was conceptualized without considering alternatives.
Further, as to its allegation that respondent Province failed to perform a full EIA, petitioner argues that while it
is true that as of now, only the Caticlan side has been issued an ECC, the entire project involves the Boracay
side, which should have been considered a co-located project. Petitioner claims that any project involving
Boracay requires a full EIA since it is an ECA. Phase 1 of the project will affect Boracay and Caticlan as they
are separated only by a narrow strait; thus, it should be considered an ECP. Therefore, the ECC and permit
issued must be invalidated and cancelled.
Petitioner contends that a study shows that the flow of the water through a narrower channel due to the
reclamation project will likely divert sand transport off the southwest part of Boracay, whereas the characteristic
coast of the Caticlan side of the strait indicate stronger sediment transport. 77 The white-sand beaches of
Boracay and its surrounding marine environment depend upon the natural flow of the adjacent waters.
Regarding its claim that the reclamation of land bordering the strait between Caticlan and Boracay shall
adversely affect the frail ecological balance of the area, petitioner submits that while the study conducted by
the MERF-UPMSI only considers the impact of the reclamation project on the land, it is undeniable that it will
also adversely affect the already frail ecological balance of the area. The effect of the project would have been
properly assessed if the proper EIA had been performed prior to any implementation of the project.
According to petitioner, respondent Provinces intended purposes do not prevail over its duty and obligation to
protect the environment. Petitioner believes that rehabilitation of the Jetty Port may be done through other
means.
In its Comment78 dated June 21, 2011, respondent Province claimed that application for reclamation of 40
hectares is advantageous to the Provincial Government considering that its filing fee would only cost
Php20,000.00 plus Value Added Tax (VAT) which is also the minimum fee as prescribed under Section 4.2 of
Administrative Order No. 2007-2.79
Respondent Province considers the instant petition to be premature; thus, it must necessarily fail for lack of
cause of action due to the failure of petitioner to fully exhaust the available administrative remedies even before
seeking judicial relief. According to respondent Province, the petition primarily assailed the decision of
respondent DENR-EMB RVI in granting the ECC for the subject project consisting of 2.64 hectares and sought
the cancellation of the ECC for alleged failure of respondent Province to submit proper documentation as
required for its issuance. Hence, the grounds relied upon by petitioner can be addressed within the confines of
administrative processes provided by law.
Respondent Province believes that under Section 5.4.3 of DENR Administrative Order No. 2003-30 (DAO 2003-
30),80 the issuance of an ECC81 is an official decision of DENR-EMB RVI on the application of a project
proponent.82It cites Section 6 of DENR DAO 2003-30, which provides for a remedy available to the party
aggrieved by the final decision on the proponents ECC applications.
Respondent Province argues that the instant petition is anchored on a wrong premise that results to petitioners
unfounded fears and baseless apprehensions. It is respondent Provinces contention that its 2.64-hectare
reclamation project is considered as a "stand alone project," separate and independent from the approved area
of 40 hectares. Thus, petitioner should have observed the difference between the "future development plan"
of respondent Province from its "actual project" being undertaken.83
Respondent Province clearly does not dispute the fact that it revised its original application to respondent PRA
from 2.64 hectares to 40 hectares. However, it claims that such revision is part of its future plan, and
implementation thereof is "still subject to availability of funds, independent scientific environmental study,
separate application of ECC and notice to proceed to be issued by respondent PRA."84
Respondent Province goes on to claim that "[p]etitioners version of the Caticlan jetty port expansion project is
a bigger project which is still at the conceptualization stage. Although this project was described in the Notice
to Proceed issued by respondent PRA to have two phases, 36.82 hectares in Caticlan and 3.18 hectares in
Boracay [Island,] it is totally different from the [ongoing] Caticlan jetty port expansion project."85
Respondent Province says that the Accomplishment Report86 of its Engineering Office would attest that the
actual project consists of 2.64 hectares only, as originally planned and conceptualized, which was even reduced
to 2.2 hectares due to some construction and design modifications.
Thus, respondent Province alleges that from its standpoint, its capability to reclaim is limited to 2.64 hectares
only, based on respondent PRAs Evaluation Report87 dated October 18, 2010, which was in turn the basis of
the issuance of the Notice to Proceed dated October 19, 2010, because the projects financial component is
260,000,000.00 only. Said Evaluation Report indicates that the implementation of the other phases of the
project including site 2, which consists of the other portions of the 40-hectare area that includes a portion in
Boracay, is still within the 10-year period and will depend largely on the availability of funds of respondent
Province.88
So, even if respondent PRA approved an area that would total up to 40 hectares, it was divided into phases in
order to determine the period of its implementation. Each phase was separate and independent because the
source of funds was also separate. The required documents and requirements were also specific for each phase.
The entire approved area of 40 hectares could be implemented within a period of 10 years but this would
depend solely on the availability of funds.89
As far as respondent Province understands it, additional reclamations not covered by the ECC, which only
approved 2.64 hectares, should undergo another EIA. If respondent Province intends to commence the
construction on the other component of the 40 hectares, then it agrees that it is mandated to secure a new
ECC.90
Respondent Province admits that it dreamt of a 40-hectare project, even if it had originally planned and was at
present only financially equipped and legally compliant to undertake 2.64 hectares of the project, and only as
an expansion of its old jetty port.91
Respondent Province claims that it has complied with all the necessary requirements for securing an ECC. On
the issue that the reclamation project is within an ECA requiring the performance of a full or programmatic EIA,
respondent Province reiterates that the idea of expanding the area to 40 hectares is only a future plan. It only
secured an ECC for 2.64 hectares, based on the limits of its funding and authority. From the beginning, its
intention was to rehabilitate and expand the existing jetty port terminal to accommodate an increasing projected
traffic. The subject project is specifically classified under DENR DAO 2003-30 on its Project Grouping Matrix for
Determination of EIA Report Type considered as Minor Reclamation Projects falling under Group II Non ECP
in an ECA. Whether 2.64 or 40 hectares in area, the subject project falls within this classification.
Consequently, respondent Province claims that petitioner erred in considering the ongoing reclamation project
at Caticlan, Malay, Aklan, as co-located within an ECA.
Respondent Province, likewise argues that the 2.64-hectare project is not a component of the approved 40-
hectare area as it is originally planned for the expansion site of the existing Caticlan jetty port. At present, it
has no definite conceptual construction plan of the said portion in Boracay and it has no financial allocation to
initiate any project on the said Boracay portion.
Furthermore, respondent Province contends that the present project is located in Caticlan while the alleged
component that falls within an ECA is in Boracay. Considering its geographical location, the two sites cannot be
considered as a contiguous area for the reason that it is separated by a body of water a strait that traverses
between the mainland Panay wherein Caticlan is located and Boracay. Hence, it is erroneous to consider the
two sites as a co-located project within an ECA. Being a "stand alone project" and an expansion of the existing
jetty port, respondent DENR-EMB RVI had required respondent Province to perform an EPRMP to secure an
ECC as sanctioned by Item No. 8(b), page 7 of DENR DAO 2003-30.
Respondent Province contends that even if, granting for the sake of argument, it had erroneously categorized
its project as Non-ECP in an ECA, this was not a final determination. Respondent DENR-EMB RVI, which was
the administrator of the EIS system, had the final decision on this matter. Under DENR DAO 2003-30, an
application for ECC, even for a Category B2 project where an EPRMP is conducted, shall be subjected to a
review process. Respondent DENR-EMB RVI had the authority to deny said application. Its Regional Director
could either issue an ECC for the project or deny the application. He may also require a more comprehensive
EIA study. The Regional Director issued the ECC based on the EPRMP submitted by respondent Province and
after the same went through the EIA review process.
Thus, respondent Province concludes that petitioners allegation of this being a "co-located project" is
premature if not baseless as the bigger reclamation project is still on the conceptualization stage. Both
respondents PRA and Province are yet to complete studies and feasibility studies to embark on another project.
Respondent Province claims that an ocular survey of the reclamation project revealed that it had worked within
the limits of the ECC.92
With regard to petitioners allegation that respondent Province failed to get the favorable endorsement of the
concerned LGUs in violation of the Local Government Code, respondent Province contends that consultation
vis--vis the favorable endorsement from the concerned LGUs as contemplated under the Local Government
Code are merely tools to seek advice and not a power clothed upon the LGUs to unilaterally approve or
disapprove any government projects. Furthermore, such endorsement is not necessary for projects falling under
Category B2 unless required by the DENR-EMB RVI, under Section 5.3 of DENR DAO 2003-30.
Moreover, DENR Memorandum Circular No. 08-2007 no longer requires the issuance of permits and
certifications as a pre-requisite for the issuance of an ECC. Respondent Province claims to have conducted
consultative activities with LGUs in connection with Sections 26 and 27 of the Local Government Code. The
vehement and staunch objections of both the Sangguniang Barangay of Caticlan and the Sangguniang Bayan
of Malay, according to respondent Province, were not rooted on its perceived impact upon the people and the
community in terms of environmental or ecological balance, but due to an alleged conflict with their "principal
position to develop, utilize and reap benefits from the natural resources found within its
jurisdiction."93 Respondent Province argues that these concerns are not within the purview of the Local
Government Code. Furthermore, the Preliminary Geohazard Assessment Report and EPRMP as well as
Sangguniang Panlalawigan Resolution Nos. 2010-022 and 2010-034 should address any environmental issue
they may raise.
Respondent Province posits that the spirit and intent of Sections 26 and 27 of the Local Government Code is to
create an avenue for parties, the proponent and the LGU concerned, to come up with a tool in harmonizing its
views and concerns about the project. The duty to consult does not automatically require adherence to the
opinions during the consultation process. It is allegedly not within the provisions to give the full authority to
the LGU concerned to unilaterally approve or disapprove the project in the guise of requiring the proponent of
securing its favorable endorsement. In this case, petitioner is calling a halt to the project without providing an
alternative resolution to harmonize its position and that of respondent Province.
Respondent Province claims that the EPRMP94 would reveal that:
[T]he area fronting the project site is practically composed of sand. Dead coral communities may be found
along the vicinity. Thus, fish life at the project site is quite scarce due to the absence of marine support systems
like the sea grass beds and coral reefs.
x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] the deepest point of jetty to the
shallowest point, there was no more coral patch and the substrate is sandy. It is of public knowledge that the
said foreshore area is being utilized by the residents ever since as berthing or anchorage site of their motorized
banca. There will be no possibility of any coral development therein because of its continuous utilization.
Likewise, the activity of the strait that traverses between the main land Caticlan and Boracay Island would also
be a factor of the coral development. Corals [may] only be formed within the area if there is scientific human
intervention, which is absent up to the present.
In light of the foregoing premise, it casts serious doubt on petitioners allegations pertaining to the
environmental effects of Respondent-LGUs 2.64 hectares reclamation project. The alleged environmental
impact of the subject project to the beaches of Boracay Island remains unconfirmed. Petitioner had
unsuccessfully proven that the project would cause imminent, grave and irreparable injury to the community.95
Respondent Province prayed for the dissolution of the TEPO, claiming that the rules provide that the TEPO may
be dissolved if it appears after hearing that its issuance or continuance would cause irreparable damage to the
party or person enjoined, while the applicant may be fully compensated for such damages as he may suffer
and subject to the posting of a sufficient bond by the party or person enjoined. Respondent Province contends
that the TEPO would cause irreparable damage in two aspects:
a. Financial dislocation and probable bankruptcy; and
b. Grave and imminent danger to safety and health of inhabitants of immediate area, including tourists
and passengers serviced by the jetty port, brought about by the abrupt cessation of development
works.
As regards financial dislocation, the arguments of respondent Province are summarized below:
1. This project is financed by bonds which the respondent Province had issued to its creditors as the
financing scheme in funding the present project is by way of credit financing through bond flotation.
2. The funds are financed by a Guarantee Bank getting payment from bonds, being sold to investors,
which in turn would be paid by the income that the project would realize or incur upon its completion.
3. While the project is under construction, respondent Province is appropriating a portion of its Internal
Revenue Allotment (IRA) budget from the 20% development fund to defray the interest and principal
amortization due to the Guarantee Bank.
4. The respondent Provinces IRA, regular income, and/or such other revenues or funds, as may be
permitted by law, are being used as security for the payment of the said loan used for the projects
construction.
5. The inability of the subject project to earn revenues as projected upon completion will compel the
Province to shoulder the full amount of the obligation, starting from year 2012.
6. Respondent province is mandated to assign its IRA, regular income and/or such other revenues or
funds as permitted by law; if project is stopped, detriment of the public welfare and its constituents. 96
As to the second ground for the dissolution of the TEPO, respondent Province argues:
1. Non-compliance with the guidelines of the ECC may result to environmental hazards most especially
that reclaimed land if not properly secured may be eroded into the sea.
2. The construction has accomplished 65.26 percent of the project. The embankment that was
deposited on the project has no proper concrete wave protection that might be washed out in the
event that a strong typhoon or big waves may occur affecting the strait and the properties along the
project site. It is already the rainy season and there is a big possibility of typhoon occurrence.
3. If said incident occurs, the aggregates of the embankment that had been washed out might be
transferred to the adjoining properties which could affect its natural environmental state.
4. It might result to the total alteration of the physical landscape of the area attributing to
environmental disturbance.
5. The lack of proper concrete wave protection or revetment would cause the total erosion of the
embankment that has been dumped on the accomplished area.97
Respondent Province claims that petitioner will not stand to suffer immediate, grave and irreparable injury or
damage from the ongoing project. The petitioners perceived fear of environmental destruction brought about
by its erroneous appreciation of available data is unfounded and does not translate into a matter of extreme
urgency. Thus, under the Rules of Procedure on Environmental Cases, the TEPO may be dissolved.
Respondent PRA filed its Comment98 on June 22, 2011. It alleges that on June 24, 2006, Executive Order No.
543 delegated the power "to approve reclamation projects to respondent PRA through its governing Board,
subject to compliance with existing laws and rules and further subject to the condition that reclamation
contracts to be executed with any person or entity (must) go through public bidding."
Section 4 of respondent PRAs Administrative Order No. 2007-2 provides for the approval process and
procedures for various reclamation projects to be undertaken. Respondent PRA prepared an Evaluation Report
on November 5, 200999 regarding Aklans proposal to increase its project to 40 hectares.
Respondent PRA contends that it was only after respondent Province had complied with the requirements under
the law that respondent PRA, through its Board of Directors, approved the proposed project under its Board
Resolution No. 4094.100 In the same Resolution, respondent PRA Board authorized the General Manager/CEO
to execute a MOA with the Aklan provincial government to implement the reclamation project under certain
conditions.
The issue for respondent PRA was whether or not it approved the respondent Provinces 2.64-hectare
reclamation project proposal in willful disregard of alleged "numerous irregularities" as claimed by petitioner. 101
Respondent PRA claims that its approval of the Aklan Reclamation Project was in accordance with law and its stresses that its earlier approval of the 40-hectare reclamation project under its Resolution No. 4094, series of
rules. Indeed, it issued the notice to proceed only after Aklan had complied with all the requirements imposed 2010, still requires a second level of compliance requirements from the proponent. Respondent Province could
by existing laws and regulations. It further contends that the 40 hectares involved in this project remains a not possibly begin its reclamation works since respondent PRA had yet to issue an NTP in its favor.
plan insofar as respondent PRA is concerned. What has been approved for reclamation by respondent PRA thus
far is only the 2.64-hectare reclamation project. Respondent PRA reiterates that it approved this reclamation Respondent PRA alleges that prior to the issuance of the NTP to respondent Province for Phase 1 of Site 1, it
project after extensively reviewing the legal, technical, financial, environmental, and operational aspects of the required the submission of the following pre-construction documents:
proposed reclamation.102
(a) Land-Form Plan (with technical description);
One of the conditions that respondent PRA Board imposed before approving the Aklan project was that no
reclamation work could be started until respondent PRA has approved the detailed engineering
(b) Site Development Plan/Land Use Plan including,
plans/methodology, design and specifications of the reclamation. Part of the required submissions to
respondent PRA includes the drainage design as approved by the Public Works Department and the ECC as
issued by the DENR, all of which the Aklan government must submit to respondent PRA before starting any (i) sewer and drainage systems and
reclamation works.103 Under Article IV(B)(3) of the MOA between respondent PRA and Aklan, the latter is
required to submit, apart from the ECC, the following requirements for respondent PRAs review and approval, (ii) waste water treatment;
as basis for the issuance of a Notice to Proceed (NTP) for Reclamation Works:
(c) Engineering Studies and Engineering Design;
(a) Land-form plan with technical description of the metes and bounds of the same land-form;
(d) Reclamation Methodology;
(b) Final master development and land use plan for the project;
(e) Sources of Fill Materials, and,
(c) Detailed engineering studies, detailed engineering design, plans and specification for reclamation
works, reclamation plans and methodology, plans for the sources of fill materials;
(f) The ECC.109

(d) Drainage plan vis-a-vis the land-form approved by DPWH Regional Office to include a cost effective
and efficient drainage system as may be required based on the results of the studies;
(e) Detailed project cost estimates and quantity take-off per items of work of the rawland reclamation
components, e.g. reclamation containment structures and soil consolidation;
Respondent PRA claims that it was only after the evaluation of the above submissions that it issued to
respondent Province the NTP, limited to the 2.64-hectare reclamation project. Respondent PRA even
emphasized in its evaluation report that should respondent Province pursue the other phases of its project, it
would still require the submission of an ECC for each succeeding phases before the start of any reclamation
works.110

(f) Organizational chart of the construction arm, manning table, equipment schedule for the project;
and,
(g) Project timetable (PERT/CPM) for the entire project construction period.104
In fact, respondent PRA further required respondent Province under Article IV (B)(24) of the MOA to strictly
comply with all conditions of the DENR-EMB-issued ECC "and/or comply with pertinent local and international
commitments of the Republic of the Philippines to ensure environmental protection."105
Respondent PRA, being the national governments arm in regulating and coordinating all reclamation projects
in the Philippines a mandate conferred by law manifests that it is incumbent upon it, in the exercise of its
regulatory functions, to diligently evaluate, based on its technical competencies, all reclamation projects
submitted to it for approval. Once the reclamation projects requirements set forth by law and related rules
have been complied with, respondent PRA is mandated to approve the same. Respondent PRA claims, "[w]ith
all the foregoing rigorous and detailed requirements submitted and complied with by Aklan, and the attendant
careful and meticulous technical and legal evaluation by respondent PRA, it cannot be argued that the
reclamation permit it issued to Aklan is founded upon numerous irregularities; as recklessly and baselessly
imputed by BFI."111

In its August 11, 2010 letter,106 respondent PRA referred for respondent Provinces appropriate action
In its Comment112 dated July 1, 2011, respondent DENR-EMB RVI asserts that its act of issuing the ECC certifies
petitioners Resolution 001, series of 2010 and Resolution 46, series of 2010, of the Sangguniang Bayan of
that the project had undergone the proper EIA process by assessing, among others, the direct and indirect
Malay. Governor Marquez wrote respondent PRA107 on September 16, 2010 informing it that respondent
impact of the project on the biophysical and human environment and ensuring that these impacts are addressed
Province had already met with the different officials of Malay, furnishing respondent PRA with the copies of the
by appropriate environmental protection and enhancement measures, pursuant to Presidential Decree No.
minutes of such meetings/presentations. Governor Marquez also assured respondent PRA that it had complied
1586, the Revised Procedural Manual for DENR DAO 2003-30, and the existing rules and regulations.113
with the consultation requirements as far as Malay was concerned.

Respondent DENR-EMB RVI stresses that the declaration in 1978 of several islands, which includes Boracay as
Respondent PRA claims that in evaluating respondent Provinces project and in issuing the necessary NTP for
tourist zone and marine reserve under Proclamation No. 1801, has no relevance to the expansion project of
Phase 1 of Site 1 (2.64 hectares) of the Caticlan Jetty Port expansion and modernization, respondent PRA gave
Caticlan Jetty Port and Passenger Terminal for the very reason that the project is not located in the Island of
considerable weight to all pertinent issuances, especially the ECC issued by DENR-EMB RVI.108 Respondent PRA
Boracay, being located in Barangay Caticlan, Malay, which is not a part of mainland Panay. It admits that the
site of the subject jetty port falls within the ECA under Proclamation No. 2146 (1981), being within the category
of a water body. This was why respondent Province had faithfully secured an ECC pursuant to the Revised
Procedural Manual for DENR DAO 2003-30 by submitting the necessary documents as contained in the EPRMP
on March 19, 2010, which were the bases in granting ECC No. R6-1003-096-7100 (amended) on April 27, 2010
for the expansion of Caticlan Jetty Port and Passenger Terminal, covering 2.64 hectares.114
Respondent DENR-EMB RVI claims that the issues raised by the LGUs of Caticlan and Malay had been considered
by the DENR-Provincial Environment and Natural Resources Office (PENRO), Aklan in the issuance of the
Order115dated January 26, 2010, disregarding the claim of the Municipality of Malay, Aklan of a portion of the
foreshore land in Caticlan covered by the application of the Province of Aklan; and another Order of Rejection
dated February 5, 2010 of the two foreshore applications, namely FLA No. 060412-43A and FLA No. 060412-
43B, of the Province of Aklan.116
Respondent DENR-EMB RVI contends that the supporting documents attached to the EPRMP for the issuance
of an ECC were merely for the expansion and modernization of the old jetty port in Barangay Caticlan covering
2.64 hectares, and not the 40-hectare reclamation project in Barangay Caticlan and Boracay. The previous
letter of respondent Province dated October 14, 2009 addressed to DENR-EMB RVI Regional Executive Director,
would show that the reclamation project will cover approximately 2.6 hectares.117 This application for ECC was
not officially accepted due to lack of requirements or documents.
Although petitioner insists that the project involves 40 hectares in two sites, respondent DENR-EMB RVI looked
at the documents submitted by respondent Province and saw that the subject area covered by the ECC
application and subsequently granted with ECC-R6-1003-096-7100 consists only of 2.64 hectares; hence,
respondent DENR-EMB RVI could not comment on the excess area.118
Respondent DENR-EMB RVI admits that as regards the classification of the 2.64-hectare reclamation project
under "Non ECP in ECA," this does not fall within the definition of a co-located project because the subject
project is merely an expansion of the old Caticlan Jetty Port, which had a previously issued ECC (ECC No. 0699-
1012-171 on October 12, 1999). Thus, only an EPRMP, not a PEIS or PEPRMP, is required.119
Respondent Province submitted to respondent DENR-EMB RVI the following documents contained in the
EPRMP:
a. The Observations on the Floor Bottom and its Marine Resources at the Proposed Jetty Ports at
Caticlan and Manok-manok, Boracay, Aklan, conducted in 1999 by the Bureau of Fisheries Aquatic
Resources (BFAR) Central Office, particularly in Caticlan site, and
b. The Study conducted by Dr. Ricarte S. Javelosa, Ph. D, Mines and Geosciences Bureau (MGB),
Central Office and Engr. Roger Esto, Provincial Planning and Development Office (PPDO), Aklan in
2009 entitled "Preliminary Geo-hazard Assessment for the Enhancement of the Existing Caticlan Jetty
Port Terminal through Beach Zone Restoration and Protective Marina Development in Malay, Aklan."
Respondent DENR-EMB RVI claims that the above two scientific studies were enough for it to arrive at a best
professional judgment to issue an amended ECC for the Aklan Marina Project covering 2.64
hectares.120Furthermore, to confirm that the 2.64-hectare reclamation has no significant negative impact with
the surrounding environment particularly in Boracay, a more recent study was conducted, and respondent
DENR-EMB RVI alleges that "[i]t is very important to highlight that the input data in the [MERF- UPMSI] study
utilized the [40-hectare] reclamation and [200-meter] width seaward using the tidal and wave
modelling."121 The study showed that the reclamation of 2.64 hectares had no effect to the hydrodynamics of
the strait between Barangay Caticlan and Boracay.
Respondent DENR-EMB RVI affirms that no permits and/or clearances from National Government Agencies
(NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No. 2007-08, entitled "Simplifying
the Requirements of ECC or CNC Applications;" that the EPRMP was evaluated and processed based on the
Revised Procedural Manual for DENR DAO 2003-30 which resulted to the issuance of ECC-R6-1003-096-7100;
and that the ECC is not a permit per se but a planning tool for LGUs to consider in its decision whether or not
to issue a local permit.122
Respondent DENR-EMB RVI concludes that in filing this case, petitioner had bypassed and deprived the DENR
Secretary of the opportunity to review and/or reverse the decision of his subordinate office, EMB RVI pursuant
to the Revised Procedural Manual for DENR DAO 2003-30. There is no "extreme urgency that necessitates the
granting of Mandamus or issuance of TEPO that put to balance between the life and death of the petitioner or
present grave or irreparable damage to environment."123
After receiving the above Comments from all the respondents, the Court set the case for oral arguments on
September 13, 2011.
Meanwhile, on September 8, 2011, respondent Province filed a Manifestation and Motion 124 praying for the
dismissal of the petition, as the province was no longer pursuing the implementation of the succeeding phases
of the project due to its inability to comply with Article IV B.2(3) of the MOA; hence, the issues and fears
expressed by petitioner had become moot. Respondent Province alleges that the petition is "premised on a
serious misappreciation of the real extent of the contested reclamation project" as certainly the ECC covered
only a total of 2,691 square meters located in Barangay Caticlan, Malay, Aklan; and although the MOA spoke
of 40 hectares, respondent Provinces submission of documents to respondent PRA pertaining to said area was
but the first of a two-step process of approval. Respondent Province claims that its failure to comply with the
documentary requirements of respondent PRA within the period provided, or 120 working days from the
effectivity of the MOA, indicated its waiver to pursue the remainder of the project.125 Respondent Province
further manifested:
Confirming this in a letter dated 12 August 2011,126 Governor Marquez informed respondent PRA that the
Province of Aklan is no longer "pursuing the implementation of the succeeding phases of the project with a
total area of 37.4 hectares for our inability to comply with Article IV B.2 (3) of the MOA; hence, the existing
MOA will cover only the project area of 2.64 hectares."
In his reply-letter dated August 22, 2011,127 [respondent] PRA General Manager informed Governor Marquez
that the [respondent] PRA Board of Directors has given [respondent] PRA the authority to confirm the position
of the Province of Aklan that the "Aklan Beach Zone Restoration and Protection Marine Development Project
will now be confined to the reclamation and development of the 2.64 hectares, more or less.
It is undisputed from the start that the coverage of the Project is in fact limited to 2.64 hectares, as evidenced
by the NTP issued by respondent PRA. The recent exchange of correspondence between respondents Province
of Aklan and [respondent] PRA further confirms the intent of the parties all along. Hence, the Project subject
of the petition, without doubt, covers only 2.64 and not 40 hectares as feared. This completely changes the
extent of the Project and, consequently, moots the issues and fears expressed by the petitioner. 128 (Emphasis
supplied.)
Based on the above contentions, respondent Province prays that the petition be dismissed as no further
justiciable controversy exists since the feared adverse effect to Boracay Islands ecology had become academic
all together.129
The Court heard the parties oral arguments on September 13, 2011 and gave the latter twenty (20) days
thereafter to file their respective memoranda.
Respondent Province filed another Manifestation and Motion,130 which the Court received on April 2, 2012
stating that:
1. it had submitted the required documents and studies to respondent DENR-EMB RVI before an ECC
was issued in its favor;
2. it had substantially complied with the requirements provided under PRA Administrative Order 2007-
2, which compliance caused respondent PRAs Board to approve the reclamation project; and
3. it had conducted a series of "consultative [presentations]" relative to the reclamation project before
the LGU of Malay Municipality, the Barangay Officials of Caticlan, and stakeholders of Boracay Island.
Respondent Province further manifested that the Barangay Council of Caticlan, Malay, Aklan enacted on
February 13, 2012 Resolution No. 003, series of 2012, entitled "Resolution Favorably Endorsing the 2.6 Hectares
Reclamation/MARINA Project of the Aklan Provincial Government at Caticlan Coastline"131 and that the
Sangguniang Bayan of the Municipality of Malay, Aklan enacted Resolution No. 020, series of 2012, entitled
"Resolution Endorsing the 2.6 Hectares Reclamation Project of the Provincial Government of Aklan Located at
Barangay Caticlan, Malay, Aklan."132
Respondent Province claims that its compliance with the requirements of respondents DENR-EMB RVI and PRA
that led to the approval of the reclamation project by the said government agencies, as well as the recent
enactments of the Barangay Council of Caticlan and the Sangguniang Bayan of the Municipality of Malay
favorably endorsing the said project, had "categorically addressed all the issues raised by the Petitioner in its
Petition dated June 1, 2011." Respondent Province prays as follows:
WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that after due
proceedings, the following be rendered:
1. The Temporary Environmental Protection Order (TEPO) it issued on June 7, 2011 be lifted/dissolved.
2. The instant petition be dismissed for being moot and academic.
3. Respondent Province of Aklan prays for such other reliefs that are just and equitable under the
premises. (Emphases in the original.)
ISSUES
The Court will now resolve the following issues:
I. Whether or not the petition should be dismissed for having been rendered moot and academic
II. Whether or not the petition is premature because petitioner failed to exhaust administrative
remedies before filing this case
III. Whether or not respondent Province failed to perform a full EIA as required by laws and regulations
based on the scope and classification of the project
IV. Whether or not respondent Province complied with all the requirements under the pertinent laws
and regulations
V. Whether or not there was proper, timely, and sufficient public consultation for the project
DISCUSSION
On the issue of whether or not the Petition should be dismissed for having been rendered moot and academic
Respondent Province claims in its Manifestation and Motion filed on April 2, 2012 that with the alleged favorable
endorsement of the reclamation project by the Sangguniang Barangay of Caticlan and the Sangguniang Bayan
of the Municipality of Malay, all the issues raised by petitioner had already been addressed, and this petition
should be dismissed for being moot and academic.
On the contrary, a close reading of the two LGUs respective resolutions would reveal that they are not sufficient
to render the petition moot and academic, as there are explicit conditions imposed that must be complied with
by respondent Province. In Resolution No. 003, series of 2012, of the Sangguniang Barangay of Caticlan it is
stated that "any vertical structures to be constructed shall be subject for barangay endorsement." 133 Clearly,
what the barangay endorsed was the reclamation only, and not the entire project that includes the construction
of a commercial building and wellness center, and other tourism-related facilities. Petitioners objections, as
may be recalled, pertain not only to the reclamation per se, but also to the building to be constructed and the
entire projects perceived ill effects to the surrounding environment.
Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay134 is even more specific. It reads in
part:
WHEREAS, noble it seems the reclamation project to the effect that it will generate scores of benefits for the
Local Government of Malay in terms of income and employment for its constituents, but the fact cannot be
denied that the project will take its toll on the environment especially on the nearby fragile island of Boracay
and the fact also remains that the project will eventually displace the local transportation
operators/cooperatives;
WHEREAS, considering the sensitivity of the project, this Honorable Body through the Committee where this
matter was referred conducted several consultations/committee hearings with concerned departments and the
private sector specifically Boracay Foundation, Inc. and they are one in its belief that this Local Government
Unit has never been against development so long as compliance with the law and proper procedures have been
observed and that paramount consideration have been given to the environment lest we disturb the balance of
nature to the end that progress will be brought to naught;
WHEREAS, time and again, to ensure a healthy intergovernmental relations, this August Body requires no less
than transparency and faithful commitment from the Provincial Government of Aklan in the process of going
through these improvements in the Municipality because it once fell prey to infidelities in matters of governance;
WHEREAS, as a condition for the grant of this endorsement and to address all issues and concerns, this
Honorable Council necessitates a sincere commitment from the Provincial Government of Aklan to the end that:
1. To allocate an office space to LGU-Malay within the building in the reclaimed area;
2. To convene the Cagban and Caticlan Jetty Port Management Board before the resumption of the
reclamation project;
3. That the reclamation project shall be limited only to 2.6 hectares in Barangay Caticlan and not
beyond;
4. That the local transportation operators/cooperatives will not be displaced; and
5. The Provincial Government of Aklan conduct a simultaneous comprehensive study on the
environmental impact of the reclamation project especially during Habagat and Amihan seasons and
put in place as early as possible mitigating measures on the effect of the project to the environment.
WHEREAS, having presented these stipulations, failure to comply herewith will leave this August Body no choice
but to revoke this endorsement, hence faithful compliance of the commitment of the Provincial Government is
highly appealed for[.]135 (Emphases added.)
The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent Province to comply with
on pain of revocation of its endorsement of the project, including the need to conduct a comprehensive study
on the environmental impact of the reclamation project, which is the heart of the petition before us. Therefore,
the contents of the two resolutions submitted by respondent Province do not support its conclusion that the
subsequent favorable endorsement of the LGUs had already addressed all the issues raised and rendered the
instant petition moot and academic.
On the issue of failure to exhaust administrative remedies
Respondents, in essence, argue that the present petition should be dismissed for petitioners failure to exhaust
administrative remedies and even to observe the hierarchy of courts. Furthermore, as the petition questions
the issuance of the ECC and the NTP, this involves factual and technical verification, which are more properly
within the expertise of the concerned government agencies.
Respondents anchor their argument on Section 6, Article II of DENR DAO 2003-30, which provides:
Section 6. Appeal
Any party aggrieved by the final decision on the ECC / CNC applications may, within 15 days from receipt of
such decision, file an appeal on the following grounds:
a. Grave abuse of discretion on the part of the deciding authority, or
b. Serious errors in the review findings.
The DENR may adopt alternative conflict/dispute resolution procedures as a means to settle grievances between
proponents and aggrieved parties to avert unnecessary legal action. Frivolous appeals shall not be
countenanced.
The proponent or any stakeholder may file an appeal to the following:
Deciding Authority Where to file the appeal
EMB Regional Office Director Office of the EMB Director
EMB Central Office Director Office of the DENR Secretary
DENR Secretary Office of the President
(Emphases supplied.)
Respondents argue that since there is an administrative appeal provided for, then petitioner is duty bound to
observe the same and may not be granted recourse to the regular courts for its failure to do so.
We do not agree with respondents appreciation of the applicability of the rule on exhaustion of administrative
remedies in this case. We are reminded of our ruling in Pagara v. Court of Appeals, 136 which summarized our
earlier decisions on the procedural requirement of exhaustion of administrative remedies, to wit:
The rule regarding exhaustion of administrative remedies is not a hard and fast rule. It is not applicable (1)
where the question in dispute is purely a legal one, or (2) where the controverted act is patently illegal or was
performed without jurisdiction or in excess of jurisdiction; or (3) where the respondent is a department
secretary, whose acts as an alter ego of the President bear the implied or assumed approval of the latter, unless
actually disapproved by him, or (4) where there are circumstances indicating the urgency of judicial
intervention, - Gonzales vs. Hechanova, L-21897, October 22, 1963, 9 SCRA 230; Abaya vs. Villegas, L-25641,
December 17, 1966, 18 SCRA; Mitra vs. Subido, L-21691, September 15, 1967, 21 SCRA 127.
Said principle may also be disregarded when it does not provide a plain, speedy and adequate remedy, (Cipriano
vs. Marcelino, 43 SCRA 291), when there is no due process observed (Villanos vs. Subido, 45 SCRA 299), or
where the protestant has no other recourse (Sta. Maria vs. Lopez, 31 SCRA 637).137 (Emphases supplied.)
As petitioner correctly pointed out, the appeal provided for under Section 6 of DENR DAO 2003-30 is only
applicable, based on the first sentence thereof, if the person or entity charged with the duty to exhaust the
administrative remedy of appeal to the appropriate government agency has been a party or has been made a
party in the proceedings wherein the decision to be appealed was rendered. It has been established by the
facts that petitioner was never made a party to the proceedings before respondent DENR-EMB RVI. Petitioner
was only informed that the project had already been approved after the ECC was already granted. 138 Not being
a party to the said proceedings, it does not appear that petitioner was officially furnished a copy of the decision,
from which the 15-day period to appeal should be reckoned, and which would warrant the application of Section
6, Article II of DENR DAO 2003-30.
Although petitioner was not a party to the proceedings where the decision to issue an ECC was rendered, it
stands to be aggrieved by the decision,139 because it claims that the reclamation of land on the Caticlan side
would unavoidably adversely affect the Boracay side, where petitioners members own establishments engaged
in the tourism trade. As noted earlier, petitioner contends that the declared objective of the reclamation project
is to exploit Boracays tourism trade because the project is intended to enhance support services thereto;
however, this objective would not be achieved since the white-sand beaches for which Boracay is famous might
be negatively affected by the project. Petitioners conclusion is that respondent Province, aided and abetted by
respondents PRA and DENR-EMB RVI, ignored the spirit and letter of our environmental laws, and should thus
be compelled to perform their duties under said laws.
The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a relief for petitioner under
the writ of continuing mandamus, which is a special civil action that may be availed of "to compel the
performance of an act specifically enjoined by law"140 and which provides for the issuance of a TEPO "as an
auxiliary remedy prior to the issuance of the writ itself."141 The Rationale of the said Rules explains the writ in
this wise:
Environmental law highlights the shift in the focal-point from the initiation of regulation by Congress to the
implementation of regulatory programs by the appropriate government agencies.
Thus, a government agencys inaction, if any, has serious implications on the future of environmental law
enforcement. Private individuals, to the extent that they seek to change the scope of the regulatory process,
will have to rely on such agencies to take the initial incentives, which may require a judicial component.
Accordingly, questions regarding the propriety of an agencys action or inaction will need to be analyzed.
This point is emphasized in the availability of the remedy of the writ of mandamus, which allows for the
enforcement of the conduct of the tasks to which the writ pertains: the performance of a legal
duty.142 (Emphases added.)
The writ of continuing mandamus "permits the court to retain jurisdiction after judgment in order to ensure the
successful implementation of the reliefs mandated under the courts decision" and, in order to do this, "the
court may compel the submission of compliance reports from the respondent government agencies as well as
avail of other means to monitor compliance with its decision."143
According to petitioner, respondent Province acted pursuant to a MOA with respondent PRA that was
conditioned upon, among others, a properly-secured ECC from respondent DENR-EMB RVI. For this reason,
petitioner seeks to compel respondent Province to comply with certain environmental laws, rules, and
procedures that it claims were either circumvented or ignored. Hence, we find that the petition was
appropriately filed with this Court under Rule 8, Section 1, A.M. No. 09-6-8-SC, which reads:
SECTION 1. Petition for continuing mandamus.When any agency or instrumentality of the government or
officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station in connection with the enforcement or violation of an environmental
law rule or regulation or a right therein, or unlawfully excludes another from the use or enjoyment of such right
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, attaching thereto
supporting evidence, specifying that the petition concerns an environmental law, rule or regulation, and praying
that judgment be rendered commanding the respondent to do an act or series of acts until the judgment is
fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious neglect to perform
the duties of the respondent, under the law, rules or regulations. The petition shall also contain a sworn
certification of non-forum shopping.
SECTION 2. Where to file the petition.The petition shall be filed with the Regional Trial Court exercising
jurisdiction over the territory where the actionable neglect or omission occurred or with the Court of Appeals
or the Supreme Court.
Petitioner had three options where to file this case under the rule: the Regional Trial Court exercising jurisdiction
over the territory where the actionable neglect or omission occurred, the Court of Appeals, or this Court.
Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of law to determine the
questions of unique national and local importance raised here that pertain to laws and rules for environmental
protection, thus it was justified in coming to this Court.
Having resolved the procedural issue, we now move to the substantive issues.
On the issues of whether, based on the scope and classification of the project, a full EIA is required by laws
and regulations, and whether respondent Province complied with all the requirements under the pertinent laws
and regulations
Petitioners arguments on this issue hinges upon its claim that the reclamation project is misclassified as a
single project when in fact it is co-located. Petitioner also questions the classification made by respondent
Province that the reclamation project is merely an expansion of the existing jetty port, when the project
descriptions embodied in the different documents filed by respondent Province describe commercial
establishments to be built, among others, to raise revenues for the LGU; thus, it should have been classified as
a new project. Petitioner likewise cries foul to the manner by which respondent Province allegedly circumvented
the documentary requirements of the DENR-EMB RVI by the act of connecting the reclamation project with its
previous project in 1999 and claiming that the new project is a mere expansion of the previous one.
As previously discussed, respondent Province filed a Manifestation and Motion stating that the ECC issued by
respondent DENR-EMB RVI covered an area of 2,691 square meters in Caticlan, and its application for
reclamation of 40 hectares with respondent PRA was conditioned on its submission of specific documents within
120 days. Respondent Province claims that its failure to comply with said condition indicated its waiver to
pursue the succeeding phases of the reclamation project and that the subject matter of this case had thus been
limited to 2.64 hectares. Respondent PRA, for its part, declared through its General Manager that the "Aklan
Beach Zone Restoration and Protection Marine Development Project will now be confined to the reclamation
and development of the 2.64 hectares, more or less."144
The Court notes such manifestation of respondent Province. Assuming, however, that the area involved in the
subject reclamation project has been limited to 2.64 hectares, this case has not become moot and academic,
as alleged by respondents, because the Court still has to check whether respondents had complied with all
applicable environmental laws, rules, and regulations pertaining to the actual reclamation project.
We recognize at this point that the DENR is the government agency vested with delegated powers to review
and evaluate all EIA reports, and to grant or deny ECCs to project proponents. 145 It is the DENR that has the
duty to implement the EIS system. It appears, however, that respondent DENR-EMB RVIs evaluation of this
reclamation project was problematic, based on the valid questions raised by petitioner.
Being the administrator of the EIS System, respondent DENR-EMB RVIs submissions bear great weight in this
case. However, the following are the issues that put in question the wisdom of respondent DENR-EMB RVI in
issuing the ECC:
1. Its approval of respondent Provinces classification of the project as a mere expansion of the existing
jetty port in Caticlan, instead of classifying it as a new project;
2. Its classification of the reclamation project as a single instead of a co-located project;
 3. The lack of prior public consultations and approval of local government agencies; and
4. The lack of comprehensive studies regarding the impact of the reclamation project to the
environment.
The above issues as raised put in question the sufficiency of the evaluation of the project by respondent DENR-
EMB RVI.
Nature of the project
The first question must be answered by respondent DENR-EMB RVI as the agency with the expertise and
authority to state whether this is a new project, subject to the more rigorous environmental impact study
requested by petitioner, or it is a mere expansion of the existing jetty port facility.
The second issue refers to the classification of the project by respondent Province, approved by respondent
DENR-EMB RVI, as single instead of co-located. Under the Revised Procedural Manual, the "Summary List of
Additional Non-Environmentally-Critical Project (NECP) Types in ECAs Classified under Group II" (Table I-2)
lists "buildings, storage facilities and other structures" as a separate item from "transport terminal facilities."
This creates the question of whether this project should be considered as consisting of more than one type of
activity, and should more properly be classified as "co-located," under the following definition from the same
Manual, which reads:
f) Group IV (Co-located Projects in either ECA or NECA): A co-located project is a group of single projects,
under one or more proponents/locators, which are located in a contiguous area and managed by one
administrator, who is also the ECC applicant. The co-located project may be an economic zone or industrial
park, or a mix of projects within a catchment, watershed or river basin, or any other geographical, political or
economic unit of area. Since the location or threshold of specific projects within the contiguous area will yet be
derived from the EIA process based on the carrying capacity of the project environment, the nature of the
project is called "programmatic." (Emphasis added.)
Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation of the project to address the
question of whether this could be deemed as a group of single projects (transport terminal facility, building,
etc.) in a contiguous area managed by respondent Province, or as a single project.
The third item in the above enumeration will be discussed as a separate issue.
The answer to the fourth question depends on the final classification of the project under items 1 and 3 above
because the type of EIA study required under the Revised Procedural Manual depends on such classification.
The very definition of an EIA points to what was most likely neglected by respondent Province as project
proponent, and what was in turn overlooked by respondent DENR-EMB RVI, for it is defined as follows:
An [EIA] is a process that involves predicting and evaluating the likely impacts of a project (including cumulative
impacts) on the environment during construction, commissioning, operation and abandonment. It also includes
designing appropriate preventive, mitigating and enhancement measures addressing these consequences to
protect the environment and the communitys welfare.146 (Emphases supplied.)
Thus, the EIA process must have been able to predict the likely impact of the reclamation project to the
environment and to prevent any harm that may otherwise be caused.
The project now before us involves reclamation of land that is more than five times the size of the original
reclaimed land. Furthermore, the area prior to construction merely contained a jetty port, whereas the proposed
expansion, as described in the EPRMP submitted by respondent Province to respondent DENR-EMB RVI involves
so much more, and we quote:
The expansion project will be constructed at the north side of the existing jetty port and terminal that will have
a total area of 2.64 hectares, more or less, after reclamation. The Phase 1 of the project construction costing
around 260 million includes the following:
1. Reclamation - 3,000 sq m (expansion of jetty port)
2. Reclamation - 13,500 sq m (buildable area)
3. Terminal annex building - 250 sq m
4. 2-storey commercial building 2,500 sq m (1,750 sq m of leasable space)
5. Health and wellness center
6. Access road - 12 m (wide)
7. Parking, perimeter fences, lighting and water treatment sewerage system
8. Rehabilitation of existing jetty port and terminal
xxxx
The succeeding phases of the project will consist of [further] reclamation, completion of the commercial center
building, bay walk commercial strip, staff building, ferry terminal, a cable car system and wharf marina. This
will entail an additional estimated cost of 785 million bringing the total investment requirement to about 1.0
billion.147(Emphases added.)
As may be gleaned from the breakdown of the 2.64 hectares as described by respondent Province above, a
significant portion of the reclaimed area would be devoted to the construction of a commercial building, and
the area to be utilized for the expansion of the jetty port consists of a mere 3,000 square meters (sq. m). To
be true to its definition, the EIA report submitted by respondent Province should at the very least predict the
impact that the construction of the new buildings on the reclaimed land would have on the surrounding
environment. These new constructions and their environmental effects were not covered by the old studies
that respondent Province previously submitted for the construction of the original jetty port in 1999, and which
it re-submitted in its application for ECC in this alleged expansion, instead of conducting updated and more
comprehensive studies.
Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are separated only by a
narrow strait. This becomes more imperative because of the significant contributions of Boracays white-sand
beach to the countrys tourism trade, which requires respondent Province to proceed with utmost caution in
implementing projects within its vicinity.
We had occasion to emphasize the duty of local government units to ensure the quality of the environment
under Presidential Decree No. 1586 in Republic of the Philippines v. The City of Davao,148 wherein we held:
Section 15 of Republic Act 7160, otherwise known as the Local Government Code, defines a local government
unit as a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such,
it performs dual functions, governmental and proprietary. Governmental functions are those that concern the
health, safety and the advancement of the public good or welfare as affecting the public generally. Proprietary
functions are those that seek to obtain special corporate benefits or earn pecuniary profit and intended for
private advantage and benefit. When exercising governmental powers and performing governmental duties, an
LGU is an agency of the national government. When engaged in corporate activities, it acts as an agent of the
community in the administration of local affairs.
Found in Section 16 of the Local Government Code is the duty of the LGUs to promote the peoples right to a
balanced ecology. Pursuant to this, an LGU, like the City of Davao, can not claim exemption from the coverage
of PD 1586. As a body politic endowed with governmental functions, an LGU has the duty to ensure the quality
of the environment, which is the very same objective of PD 1586.
xxxx
Section 4 of PD 1586 clearly states that "no person, partnership or corporation shall undertake or operate any
such declared environmentally critical project or area without first securing an Environmental Compliance
Certificate issued by the President or his duly authorized representative." The Civil Code defines a person as
either natural or juridical. The state and its political subdivisions, i.e., the local government units are juridical
persons. Undoubtedly therefore, local government units are not excluded from the coverage of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the policy of the state to achieve
a balance between socio-economic development and environmental protection, which are the twin goals of
sustainable development. The above-quoted first paragraph of the Whereas clause stresses that this can only
be possible if we adopt a comprehensive and integrated environmental protection program where all the sectors
of the community are involved, i.e., the government and the private sectors. The local government units, as
part of the machinery of the government, cannot therefore be deemed as outside the scope of the EIS
system.149 (Emphases supplied.)
The Court chooses to remand these matters to respondent DENR-EMB RVI for it to make a proper study, and
if it should find necessary, to require respondent Province to address these environmental issues raised by
petitioner and submit the correct EIA report as required by the projects specifications. The Court requires
respondent DENR-EMB RVI to complete its study and submit a report within a non-extendible period of three
months. Respondent DENR-EMB RVI should establish to the Court in said report why the ECC it issued for the
subject project should not be canceled.
Lack of prior public consultation
The Local Government Code establishes the duties of national government agencies in the maintenance of
ecological balance, and requires them to secure prior public consultation and approval of local government
units for the projects described therein.
In the case before us, the national agency involved is respondent PRA. Even if the project proponent is the
local government of Aklan, it is respondent PRA which authorized the reclamation, being the exclusive agency
of the government to undertake reclamation nationwide. Hence, it was necessary for respondent Province to
go through respondent PRA and to execute a MOA, wherein respondent PRAs authority to reclaim was
delegated to respondent Province. Respondent DENR-EMB RVI, regional office of the DENR, is also a national
government institution which is tasked with the issuance of the ECC that is a prerequisite to projects covered
by environmental laws such as the one at bar.
This project can be classified as a national project that affects the environmental and ecological balance of local
communities, and is covered by the requirements found in the Local Government Code provisions that are
quoted below:
Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be the
duty of every national agency or government-owned or controlled corporation authorizing or involved in the
planning and implementation of any project or program that may cause pollution, climatic change, depletion of
non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species,
to consult with the local government units, nongovernmental organizations, and other sectors concerned and
explain the goals and objectives of the project or program, its impact upon the people and the community in
terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize
the adverse effects thereof.
Section 27. Prior Consultations Required. - No project or program shall be implemented by government
authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior
approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are
to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance
with the provisions of the Constitution.
In Lina, Jr. v. Pao,150 we held that Section 27 of the Local Government Code applies only to "national programs
and/or projects which are to be implemented in a particular local community"151 and that it should be read in
conjunction with Section 26. We held further in this manner:
Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and programs
whose effects are among those enumerated in Section 26 and 27, to wit, those that: (1) may cause pollution;
(2) may bring about climatic change; (3) may cause the depletion of non-renewable resources; (4) may result
in loss of crop land, range-land, or forest cover; (5) may eradicate certain animal or plant species from the face
of the planet; and (6) other projects or programs that may call for the eviction of a particular group of people
residing in the locality where these will be implemented. Obviously, none of these effects will be produced by
the introduction of lotto in the province of Laguna.152 (Emphasis added.)
During the oral arguments held on September 13, 2011, it was established that this project as described above
falls under Section 26 because the commercial establishments to be built on phase 1, as described in the EPRMP
quoted above, could cause pollution as it could generate garbage, sewage, and possible toxic fuel discharge. 153
Our ruling in Province of Rizal v. Executive Secretary154 is instructive:
We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas, where we held that there
was no statutory requirement for the sangguniang bayan of Puerto Galera to approve the construction of a
mooring facility, as Sections 26 and 27 are inapplicable to projects which are not environmentally critical.
Moreover, Section 447, which enumerates the powers, duties and functions of the municipality, grants
the sangguniang bayan the power to, among other things, "enact ordinances, approve resolutions and
appropriate funds for the general welfare of the municipality and its inhabitants pursuant to Section 16 of th(e)
Code." These include:
(1) Approving ordinances and passing resolutions to protect the environment and impose appropriate
penalties for acts which endanger the environment, such as dynamite fishing and other forms of
destructive fishing, illegal logging and smuggling of logs, smuggling of natural resources products and
 of endangered species of flora and fauna, slash and burn farming, and such other activities which
result in pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance;
[Section 447 (1)(vi)]
(2) Prescribing reasonable limits and restraints on the use of property within the jurisdiction of the
municipality, adopting a comprehensive land use plan for the municipality, reclassifying land within
the jurisdiction of the city, subject to the pertinent provisions of this Code, enacting integrated zoning
ordinances in consonance with the approved comprehensive land use plan, subject to existing laws,
rules and regulations; establishing fire limits or zones, particularly in populous centers; and regulating
the construction, repair or modification of buildings within said fire limits or zones in accordance with
the provisions of this Code; [Section 447 (2)(vi-ix)]
(3) Approving ordinances which shall ensure the efficient and effective delivery of the basic services
and facilities as provided for under Section 17 of this Code, and in addition to said services and
facilities, providing for the establishment, maintenance, protection, and conservation of communal
forests and watersheds, tree parks, greenbelts, mangroves, and other similar forest development
projects and, subject to existing laws, establishing and providing for the maintenance, repair and
operation of an efficient waterworks system to supply water for the inhabitants and purifying the
source of the water supply; regulating the construction, maintenance, repair and use of hydrants,
pumps, cisterns and reservoirs; protecting the purity and quantity of the water supply of the
municipality and, for this purpose, extending the coverage of appropriate ordinances over all territory
within the drainage area of said water supply and within one hundred (100) meters of the reservoir,
conduit, canal, aqueduct, pumping station, or watershed used in connection with the water service;
and regulating the consumption, use or wastage of water." [Section 447 (5)(i) & (vii)]
Under the Local Government Code, therefore, two requisites must be met before a national project that affects
the environmental and ecological balance of local communities can be implemented: prior consultation with the
affected local communities, and prior approval of the project by the appropriate sanggunian. Absent either of
these mandatory requirements, the projects implementation is illegal.155 (Emphasis added.)
Based on the above, therefore, prior consultations and prior approval are required by law to have been
conducted and secured by the respondent Province. Accordingly, the information dissemination conducted
months after the ECC had already been issued was insufficient to comply with this requirement under the Local
Government Code. Had they been conducted properly, the prior public consultation should have considered the
ecological or environmental concerns of the stakeholders and studied measures alternative to the project, to
avoid or minimize adverse environmental impact or damage. In fact, respondent Province once tried to obtain
the favorable endorsement of the Sangguniang Bayan of Malay, but this was denied by the latter.
Moreover, DENR DAO 2003-30 provides:
5.3 Public Hearing / Consultation Requirements
For projects under Category A-1, the conduct of public hearing as part of the EIS review is mandatory unless
otherwise determined by EMB. For all other undertakings, a public hearing is not mandatory unless specifically
required by EMB.
Proponents should initiate public consultations early in order to ensure that environmentally relevant concerns
of stakeholders are taken into consideration in the EIA study and the formulation of the management plan. All
public consultations and public hearings conducted during the EIA process are to be documented. The public
hearing/consultation Process report shall be validated by the EMB/EMB RD and shall constitute part of the
records of the EIA process. (Emphasis supplied.)
In essence, the above-quoted rule shows that in cases requiring public consultations, the same should be
initiated early so that concerns of stakeholders could be taken into consideration in the EIA study. In this case,
respondent Province had already filed its ECC application before it met with the local government units of Malay
and Caticlan.
The claim of respondent DENR-EMB RVI is that no permits and/or clearances from National Government
Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No. 2007-08. However,
we still find that the LGC requirements of consultation and approval apply in this case. This is because a
Memorandum Circular cannot prevail over the Local Government Code, which is a statute and which enjoys
greater weight under our hierarchy of laws.
Subsequent to the information campaign of respondent Province, the Municipality of Malay and the Liga ng
mga Barangay-Malay Chapter still opposed the project. Thus, when respondent Province commenced the
implementation project, it violated Section 27 of the LGC, which clearly enunciates that "[no] project or program
shall be implemented by government authorities unless the consultations mentioned in Sections 2(c) and 26
hereof are complied with, and prior approval of the sanggunian concerned is obtained."
The lack of prior public consultation and approval is not corrected by the subsequent endorsement of the
reclamation project by the Sangguniang Barangay of Caticlan on February 13, 2012, and the Sangguniang
Bayan of the Municipality of Malay on February 28, 2012, which were both undoubtedly achieved at the urging
and insistence of respondent Province. As we have established above, the respective resolutions issued by the
LGUs concerned did not render this petition moot and academic.
It is clear that both petitioner and respondent Province are interested in the promotion of tourism in Boracay
and the protection of the environment, lest they kill the proverbial hen that lays the golden egg. At the beginning
of this decision, we mentioned that there are common goals of national significance that are very apparent
from both the petitioners and the respondents respective pleadings and memoranda.
The parties are evidently in accord in seeking to uphold the mandate found in Article II, Declaration of Principles
and State Policies, of the 1987 Constitution, which we quote below:
SECTION 16. The State shall protect and advance the right of the people to a balanced and healthful ecology
in accord with the rhythm and harmony of nature.
xxxx
SECTION 20. The State recognizes the indispensable role of the private sector, encourages private enterprise,
and provides incentives to needed investments.
The protection of the environment in accordance with the aforesaid constitutional mandate is the aim, among
others, of Presidential Decree No. 1586, "Establishing an Environmental Impact Statement System, Including
Other Environmental Management Related Measures and For Other Purposes," which declared in its first Section
that it is "the policy of the State to attain and maintain a rational and orderly balance between socio-economic
growth and environmental protection."
The parties undoubtedly too agree as to the importance of promoting tourism, pursuant to Section 2 of Republic
Act No. 9593, or "The Tourism Act of 2009," which reads:
SECTION 2. Declaration of Policy. The State declares tourism as an indispensable element of the national
economy and an industry of national interest and importance, which must be harnessed as an engine of
socioeconomic growth and cultural affirmation to generate investment, foreign exchange and employment, and
to continue to mold an enhanced sense of national pride for all Filipinos. (Emphasis ours.)
The primordial role of local government units under the Constitution and the Local Government Code of 1991
in the subject matter of this case is also unquestionable. The Local Government Code of 1991 (Republic Act
No. 7160) pertinently provides:
Section 2. Declaration of Policy. - (a) It is hereby declared the policy of the State that the territorial and political
subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their
fullest development as self-reliant communities and make them more effective partners in the attainment of
national goals. Toward this end, the State shall provide for a more responsive and accountable local government
structure instituted through a system of decentralization whereby local government units shall be given more
powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the
national government to the local government units.156 (Emphases ours.)
As shown by the above provisions of our laws and rules, the speedy and smooth resolution of these issues
would benefit all the parties. Thus, respondent Provinces cooperation with respondent DENR-EMB RVI in the
Court-mandated review of the proper classification and environmental impact of the reclamation project is of
utmost importance.
3. Respondent Philippine Reclamation Authority shall closely monitor the submission by respondent
Province of the requirements to be issued by respondent DENR-EMB RVI in connection to the
environmental concerns raised by petitioner, and shall coordinate with respondent Province in
modifying the MOA, if necessary, based on the findings of respondent DENR-EMB RVI.
4. The petitioner Boracay Foundation, Inc. and the respondents The Province of Aklan, represented
by Governor Carlito S. Marquez, The Philippine Reclamation Authority, and The DENR-EMB (Region
VI) are mandated to submit their respective reports to this Court regarding their compliance with the
requirements set forth in this Decision no later than three (3) months from the date of promulgation
of this Decision.
5. In the meantime, the respondents, their concerned contractor/s, and/or their agents,
representatives or persons acting in their place or stead, shall immediately cease and desist from
continuing the implementation of the project covered by ECC-R6-1003-096-7100 until further orders
from this Court. For this purpose, the respondents shall report within five (5) days to this Court the
status of the project as of their receipt of this Decision, copy furnished the petitioner.
This Decision is immediately executory.
SO ORDERED.

WHEREFORE, premises considered, the petition is hereby PARTIALLY GRANTED.1wphi1 The TEPO issued by
this Court is hereby converted into a writ of continuing mandamus specifically as follows:

1. Respondent Department of Environment and Natural Resources-Environmental Management

Bureau Regional Office VI shall revisit and review the following matters:

a. its classification of the reclamation project as a single instead of a co-located project;

b. its approval of respondent Provinces classification of the project as a mere expansion of

the existing jetty port in Caticlan, instead of classifying it as a new project; and

c. the impact of the reclamation project to the environment based on new, updated, and
comprehensive studies, which should forthwith be ordered by respondent DENR-EMB RVI.

2. Respondent Province of Aklan shall perform the following:

a. fully cooperate with respondent DENR-EMB RVI in its review of the reclamation project
proposal and submit to the latter the appropriate report and study; and

b. secure approvals from local government units and hold proper consultations with non-
governmental organizations and other stakeholders and sectors concerned as required by
Section 27 in relation to Section 26 of the Local Government Code.
LOCGOV LEAGUES
G.R. No. 175368 April 11, 2013
LEAGUE OF PROVINCES OF THE PHILIPPINES, Petitioner,
vs.
DEPARTMENT OF ENVIRONMENT and NATURAL RESOURCES and HON. ANGELO T. REYES, in his
capacity as Secretary of DENR, Respondents.
CONCURRING OPINION
LEONEN, J.:
I concur in the result.
This is a case of overlapping claims, which involve the application of the Mining Act, and the Small-Scale Mining Act.
It is specific to the facts of this case, which are:
The Mines and Geosciences Bureau, Regional Office No. III (MGB R-Ill) denied Golden Falcon Mineral Exploration
Corporation's (Golden Falcon) application for Financial and Technical Assistance Agreement (FTAA) on April29, 1998
for failure to secure the required clearances.1
Golden Falcon appealed the denial-with the Mines and Geosciences Bureau-Central Office (Central Office).2 The appeal
was denied only on July 16, 2004 or six years after Golden Falconappealed. 3
On February 10, 2004, pending Golden Falcon's appeal to the Central Office, certain persons filed with the Provincial
Environment and Natural Resources Office "(PENRO) of Bulacan their applications for quarry permit covering the same
area subject of Golden Falcon's FTAA application.4
On September 13, 2004, after the Central Office denied Golden Falcons appeal, Atlantic Mines and Trading
Corporation (AMTC) filed an application for exploration permit covering the same subject area with the PENRO of
Bulacan.5
Confusion of rights resulted from the overlapping applications of AMTC and the persons applying for quarry permits.
The main question was when did the subject area become open for small scale mining applications. At that time, the
provincial government did not question whether it had concurrent or more superior jurisdiction vis-a-vis the national
government.
It was upon query by MGB R-III Director Arnulfo Cabantog that DENR-MGB Director Horacio Ramos stated that the
denial of Golden Falcons application became final fifteen days after the denial of its appeal to the Central Office or
on August 11, 2004.6 Hence, the area of Golden Falcons application became open to permit applications only on that
date.
After the MGB Director issued the statement, however, the Provincial Legal Officer of Bulacan, Atty. Eugenio F.
Ressureccion issued a legal opinion on the issue, stating that the subject area became open for new applications on
the date of the first denial on April 29, 1998.7
On the basis of the Provincial Legal Officers opinion, Director Cabantog of MGB R-III endorsed the applications for
quarry permit, now converted to applications for small-scale mining permit, to the Governor of Bulacan. 8 Later on,
the Governor issued the small-scale mining permits.9
Upon appeal by the AMTC, the DENR Secretary declared as null the small-scale mining permits issued by the Governor
on the ground that they have been issued in violation of Section 4 of R.A. No. 7076 and beyond the authority of the
Governor.10 According to the DENR Secretary, the area was never proclaimed to be under the small-scale mining
program.11 Iron ores also cannot be considered as a quarry resource.12
The question in this case is whether or not the provincial governor had the power to issue the subject permits.
The fact that the application for small-scale mining permit was initially filed as applications for quarry permits is not
contested.
Quarry permits, however, may only be issued "on privately-owned lands and/or public lands for building and
construction materials such as marble, basalt, andesite, conglomerate, tuff, adobe, granite, gabbro, serpentine, inset
filling materials, clay for ceramic tiles and building bricks, pumice, perlite and other similar materials..." 13 It may not
be issued on "...resources that contain metals or metallic constituents and/or other valuable materials in economic
quantities."14
Not only do iron ores fall outside the classification of any of the enumerated materials in Section 43 of the Mining Act,
but iron is also a metal. It may not be classified as a quarry resource, hence, the provincial governor had no authority
to issue the quarry permits in the first place. Probably realizing this error, the applications for quarry permit were
converted to applications for small-scale mining permit.
Even so, the issuance of the small-scale mining permit was still beyond the authority of the provincial governor. Small-
scale mining areas must first be declared and set aside as such before they can be made subject of small-scale mining
rights.15 The applications for small-scale mining permit, in this case, involved covered areas, which were never
declared as peoples small-scale mining areas. This is enough reason to deny an application for small-scale mining
permit. Permits issued in disregard of this fact are void for having been issued beyond the authority of the issuing
officer.
Therefore, there was no issue of local autonomy. The provincial governor did not have the competence to issue the
questioned permits.
Neither does the League of Provinces have any standing to raise the present constitutional issue.
Locus standi is defined as "a right of appearance in a court of justice on a given question." 16 The fundamental question
is "whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult
constitutional questions."17
In case of a citizens suit, the "interest of the person assailing the constitutionality of a statute must be direct and
personal. He must be able to show, not only that the law is invalid, but also that he has sustained or is in immediate
danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some
indefinite way."18 In the case of Telecommunications and Broadcast Attorneys of the Philippines, Inc. and GMA
Network, Inc. v. COMELEC, we said that a citizen who raises a constitutional question may only do so if s/he could
show: (1) that s/he had personally suffered some actual or threatened injury; (2) that the actual or threatened injury
was a result of an allegedly illegal conduct of the government; (3) that the injury is traceable to the challenged action;
and (4) that the injury is likely to be redressed by a favorable action.19
The Petitioner League of Provinces status as an organization of all provinces duty-bound to promote local
autonomy20 and adopt measures for the promotion of the welfare of provinces 21 does not clothe it with standing to
question the constitutionality of the Section 17(b)(iii) of the Local Government Code and Section 24 of Rep. Act No.
7076 or the Small-Scale Mining Act.
As an organization that represents all provinces, it did not suffer an actual injury or an injury in fact, resulting from
the implementation of the subject provisions. It cannot be said either that the provinces that Petitioner represents
suffered the same injury when the Central Office nullified the permits issued by the Governor of Bulacan.
Provinces do not have a common or general interest on matters related to mining that the League of Provinces can
represent. Each province has a particular interest to protect and claims to pursue that are separate and distinct from
the others. Therefore, each is unique as to its reasons for raising issues to the Court. The League of Provinces cannot
represent all provinces on mining-related issues. The perceived wrong suffered by the Province of Bulacan when the
Central Office allegedly exercised control does not necessarily constitute a wrong suffered by the other provinces.
Furthermore, the Constitution provides for two types of local governance other than the national government: 1) The
territorial and political subdivisions composed of provinces, cities, municipalities and barangays; and 2) autonomous
regions.22 The division of Article X of the Constitution distinguishes between their creation and relationship with the
national government.
The creation of autonomous regions takes into consideration the "historical and cultural heritage, economic and social
structures, and other relevant characteristics"23 which its constituent geographical areas share in common. These
factors are not considered in the creation of territorial and political subdivisions.
Autonomous regions are not only created by an act of the Congress. The Constitution also provides for a plebiscite
requirement before the organic act that creates an autonomous region becomes effective. 24 This constitutes the
creation of autonomous regions a direct act of the people. It means that the basic structure of an autonomous region,
consisting of the executive department and legislative assembly, its special courts, and the provisions on its powers
may not be easily amended or superseded by a simple act of the Congress.
Moreover, autonomous regions have powers, e.g. over their administrative organization, sources of revenues,
ancestral domain, natural resources, personal, family and property relations, regional planning development,
economic, social and tourism development, educational policies, cultural heritage and other matters.25
On the other hand, the creation of territorial and political subdivisions is subject to the local government code enacted
by the Congress without a plebiscite requirement.26 While this does not disallow the inclusion of provisions requiring
plebiscites in the creation of provinces, cities, and municipalities, the local government code may be amended or
superseded by another legislative act that removes such requirement. Their government structure, powers, and
responsibilities, therefore, are always subject to amendment by legislative acts.
The territorial and political subdivisions and autonomous regions are granted autonomy under the Constitution. 27The
constitutional distinctions between them imply a clear distinction between the kinds of autonomy that they exercise.
The oft-cited case of Limbona v. Mangelin 28
penned by Justice Sarmiento distinguishes between two types of
autonomy:
autonomy is either decentralization of administration or decentralization of power. There is decentralization of
administration when the central government delegates administrative powers to political subdivisions in order to
broaden the base of government power and in the process to make local governments more responsive and
accountable, and ensure their fullest development as self-reliant communities and make them more effective partners
in the pursuit of national development and social progress
Decentralization of power, on the other hand, involves an abdication of political power in the favor of local
governments units declared to be autonomous. In that case, the autonomous government is free to chart its own
destiny and shape its future with minimum intervention from central authorities. According to a constitutional author,
decentralization of power amounts to "self-immolation," since in that event, the autonomous government becomes
accountable not to the central authorities but to its constituency.
xxx
An autonomous government that enjoys autonomy of the latter category [CONST. (1987), art. X sec. 15.] is subject
alone to the decree of the organic act creating it and accepted principles on the effects and limits of "autonomy." On
the other hand, an autonomous government of the former class is, as we noted, under the supervision of the national
government acting through the President (and the Department of Local Government)
I agree that autonomy, as phrased in Section 2 of Article X of the Constitution, which pertains to provinces, cities,
municipalities and barangays, refers only to administrative autonomy.
In granting autonomy, the national government does not totally relinquish its powers. 29 The grant of autonomy does
not make territorial and political subdivisions sovereign within the state or an "imperium in imperio". 30 The aggrupation
of local government units and the creation of regional development councils in Sections 13 and 14 of Article X of the
Constitution do not contemplate grant of discretion to create larger units with a recognized distinct political power
that is parallel to the state. It merely facilitates coordination and exchange among them, still, for the purpose of
administration.
Territorial and political subdivisions are only allowed to take care of their local affairs so that governance will be more
responsive and effective to their unique needs.31 The Congress still retains control over the extent of powers or
autonomy granted to them.
Therefore, when the national government invalidates an act of a territorial or political subdivision in the exercise of a
power that is constitutionally and statutorily lodged to it, the territorial or political subdivision cannot complain that
its autonomy is being violated. This is especially so when the extent of its autonomy under the Constitution or law
does not include power or control over the matter, to the exclusion of the national government.
However, I do not agree that Limbona v. Mangelin correctly categorized the kind of autonomy that autonomous
regions enjoy.
In that case, the court tried to determine the extent of self-government of autonomous governments organized under
Presidential Decree No. 1618 on July 25, 1979. This is prior to the autonomous regions contemplated in the 1987
Constitution.
Autonomous regions are granted more powers and less intervention from the national government than territorial and
political subdivisions. They are, thus, in a more asymmetrical relationship with the national government as compared
to other local governments or any regional formation. 32 The Constitution grants them legislative powers over some
matters, e.g. natural resources, personal, family and property relations, economic and tourism development,
educational policies, that are usually under the control of the national government. However, they are still s"ubject to
the supervision of the President. Their establishment is still subject to the framework of the Constitution, particularly,
sections 15 to 21 of Article X, national sovereignty and territorial integrity of the Republic of the Philippines.
The exact contours of the relationship of the autonomous government and the national government are defined by
legislation such as Republic Act No. 9054 or the Organic Act for the Autonomous Region in Muslim Mindanao. This is
not at issue here and our pronouncements should not cover the provinces that may be within that autonomous region.
Considering the foregoing, I vote to DISMISS the petition.